House OKs division of 9th Circuit Court of Appeals

The House of Representatives in October voted to split up the 9th U.S. Circuit Court of Appeals, a California-based court that has issued a number of what many experts view as doctor-favorable opinions in recent years.

The 205-194 vote calls for dividing the 9th Circuit into three separate districts. The plan is not expected to pass in the Senate, but a split has been a hot topic for some time and is likely to be debated again in the future.

It would leave California and Hawaii in the 9th Circuit. Arizona, Idaho, Montana and Nevada would be part of a newly created 12th Circuit. Alaska, Oregon and Washington would be in a newly formed 13th Circuit.

It's difficult to say what a breakup could mean to physicians. But medical societies in some of the states that would be involved said a split could help get cases through the system more quickly. It also could allow for the full panel of judges to meet more often to decide cases, rather than three-judge panels, they said.

"I don't think it would have an impact on the types of cases being heard," said Jim Jordan, executive director of the Alaska State Medical Assn. "But it could lead to more expedited decisions."

Generally speaking, people in Idaho would support a split in the circuit, said Ron Hodge, associate executive director and in-house legal counsel for the Idaho Medical Assn. "Politics in Idaho are more conservative than California politics," he said.

As reflected by the recent vote, lawmakers are divided on the issue.

Rep. Mike Simpson (R, Idaho) said the change is necessary because the 9th Circuit currently serves more than 50 million people, about 20 million more people than the average jurisdiction of other federal appellate courts.

"The people of Idaho and other western states would be best served by breaking up the 9th Circuit into smaller, more efficient courts better designed to consistently and predictably serve our region," Simpson said in a statement.

Other lawmakers oppose the move, saying some conservative colleagues want the split because they are upset with some of the court's rulings. But Rep. Shelly Berkley (D, Nev.) noted that judges in the 9th Circuit are seeing their decisions overturned by the U.S. Supreme Court at a rate comparable with other circuits.

"Just because members of Congress may not agree with the court's rulings, that does not give them the right to try and dismantle our judicial system or to override our system of checks and balances," Berkley said in a statement.

The 9th Circuit has issued a number of significant rulings involving physicians in the past five years:

• In May, a three-judge panel ruled that Attorney General John Ashcroft couldn't revoke physicians' licenses to prescribe controlled substances if the doctors wrote lethal prescriptions allowed under Oregon's Death With Dignity Act.
• In August 2003, justices ruled that doctors should break physician-patient confidentially and inform police about a patient who they believe is in danger of harming someone. But the court said a doctor shouldn't have to testify at a patient's trial because it could have a damaging impact on the patient-physician relationship. The case originated in Oregon.
• In June 2003, a three-judge panel said that the Hawaii Medical Assn. and other advocacy groups can comment on nonmonetary parts of health plan agreements without breaking antitrust laws.
• In October 2002, the court said physicians can talk to patients about the pros and cons of medical marijuana without fear of the government taking away their DEA numbers.
• In May 2002, in a 5-4 decision, the court said a Web site known as the Nuremberg Files was free speech but that a scorecard on the Web site that drew a line through photos of the doctors who had been killed and noted which doctors had been injured is not protected speech. The court said that was a "true threat." The ruling overturned a decision by a 9th Circuit three-judge panel.