Landmark Legislation: Tenth Circuit

Landmark Legislation

Historical Note
Statute Text

45 Stat. 1346
February 28, 1929

For the first time in more than 65 years, Congress in 1929 created a new judicial circuit to accommodate the increased number of states and the expansion of caseload in the federal courts. The 12 states that entered the Union between 1866 and 1912 had been incorporated into the Eighth and Ninth Circuits. The Eighth Circuit, encompassing 13 states stretching from Canada to Mexico and from the Mississippi to beyond the Rocky Mountains, became the largest in the nation. By the 1920s, the Eighth Circuit Court of Appeals was meeting in three divisions, and district court judges were recruited regularly to assist the six circuit judges. Various groups representing the bar and the judiciary feared that such a large circuit threatened the efficient administration of justice in regionally-defined courts.

An American Bar Association committee suggested in 1925 that Congress realign the nation's entire circuit structure and establish one additional circuit in order to redistribute the appellate caseload without authorizing additional judgeships. The congressional hearings on the proposal in 1928 revealed widespread opposition to a plan that would have changed the composition of all but two circuits and for the first time have made a single state, New York, a circuit unto itself. The arguments against the proposal demonstrated the extent to which judges and lawyers considered the existing circuits to be geographically-distinct legal cultures defined by local procedures and types of litigation. Chief Justice Taft suggested that a reorganization limited to the Eighth Circuit might solve the most serious problems and find broader support.

Later in the same Congress, the House of Representatives considered two proposals to divide the existing Eighth Circuit. Representative Walter Newton of Minnesota offered a bill to separate the circuit's eastern and western states, thus creating circuits organized on the basis of two regional economies, one predominantly agricultural and the other related to mining and irrigation. An alternative proposal divided the northern from the southern states. The judges of the existing circuit court of appeals thought the division of east and west would create a fair balance of caseload, and the bar of the circuit agreed.

With little opposition to the principle of dividing the circuit, congressional deliberation on the bill focused on the need for more judgeships and requests for more meeting places of the circuit courts of appeals. With almost no discussion on the floor, the House and Senate passed a statute that grouped Minnesota, Iowa, North Dakota, South Dakota, Nebraska, Missouri, and Arkansas as the Eighth Circuit and established a Tenth Circuit consisting of Wyoming, Colorado, Utah, New Mexico, Kansas, and Oklahoma. Sitting circuit judges were reassigned according to their residence, and three additional judgeships were authorized. Five judges would serve the Eighth Circuit, and four would sit in the Tenth.

February 29, 1929.
45 Stat. 1346.

CHAP. 363.-An Act To amend sections 116, 118, and 126 of the Judicial Code, as amended, to divide the eighth judicial circuit of the United States, and to create a tenth judicial circuit.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 116 of the Judicial Code, as amended [U. S. C., title 28, 211], is amended to read as follows:

"SEC. 116. There shall be ten judicial circuits of the United States, constituted as follows:

"First. The first circuit shall include the districts of Rhode Island, Massachusetts, New Hampshire, Maine, and Porto Rico.

"Second. The second circuit shall include the districts of Vermont, Connecticut, and New York.

"Third. The third circuit shall include the districts of Pennsylvania, New Jersey, and Delaware.

"Fourth. The fourth circuit shall include the districts of Maryland, Virginia, West Virginia, North Carolina and South Carolina.

"Fifth. The fifth circuit shall include the district of Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas.

"Sixth. The sixth circuit shall include the districts Ohio, Michigan, Kentucky, and Tennessee.

"Seventh. The seventh circuits shall include the districts of Indiana, Illinois, and Wisconsin.

"Eighth. The eighth circuit shall include the districts of Minnesota, North Dakota, South Dakota, Iowa, Nebraska, Missouri, and Arkansas.

"Ninth. The ninth circuit shall include the districts of California, Oregon, Nevada, Washington, Idaho, Montana, Hawaii, and Arizona.

"Tenth. The tenth circuit shall include the districts of Colorado, Wyoming, Utah, Kansas, Oklahoma, and New Mexico."

SEC. 2. Section 118 of the Judicial Code, as amended [U. S. C., title 28,

213; 45 Stat. at Large 492; Public No. 664, 70th Congress], is amended to read as follows:

"SEC. 118. There shall be in the sixth, seventh, and tenth circuits, respectively, four circuit judges; and in the second and eighth circuits, respectively, five circuit judges; and in each of the other circuits three circuit judges, to be appointed by the President, by and with the advice and consent of the Senate. Each circuit judge shall receive a salary of $12,500 a year, payable monthly. Each circuit judge shall reside within his circuit, and when appointed shall be a resident of the circuit for which he is appointed. The circuit judges in each circuit shall be judges of the circuit court of appeals in that circuit, and it shall be the duty of each circuit judge in each circuit to sit as one of the judges of the circuit court of appeals in that circuit from time to time according to law. Nothing in this section shall be construed to prevent any circuit judge holding district court or otherwise, as provided by other sections of the Judicial Code."

SEC. 3. Section 126 of the Judicial Code, as amended [U. S. C., title 28, 223; U. S. C., Sup. I, title 28, 223], is amended to read as follows:

"SEC. 126. A term shall be held annually by the circuit courts of appeals in the several judicial circuits at the following places, and at such times as may be fixed by said courts, respectively: In the first circuit, in Boston, and when in its judgment the public interests require in San Juan, Porto Rico; in the second circuit, in New York; in the third circuit, in Philadelphia; in the fourth circuit, in Richmond and in Asheville, North Carolina; in the fifth circuit, in New Orleans, Atlanta, Fort Worth, and Montgomery; in the sixth circuit, in Cincinnati; in the seventh circuit, in Chicago; in the eighth circuit, in Saint Louis, Kansas City, Omaha, and Saint Paul; in the ninth circuit, in San Francisco, and each year in two other places in said circuit to be designated by the judges of said court; in the tenth circuit, in Denver, Wichita, and Oklahoma City, provided that suitable rooms and accommodations for holding court at Oklahoma City are furnished free of expense to the United States; and in each of the above circuits terms may be held at such other times and in such other places as said courts, respectively, may from time to time designate, except that terms shall be held in Atlanta on the first Monday in October, in Fort Worth on the first Monday in November, and in Montgomery on the third Monday in October. All appeals and other appellate proceedings which may be taken or prosecuted from the district courts of the United States in the State of Georgia, in the State of Texas, and in the State of Alabama, to the circuit court of appeals for the fifth judicial circuit shall be heard and disposed of, respectively, by said court at the terms held in Atlanta, in Fort Worth, and in Montgomery, except that appeals in cases of injunctions and in all other cases which, under the statutes and rules, or in the opinion of the court, are entitled to be brought to a speedy hearing, may be heard and disposed of wherever said court may be sitting. All appeals and other appellate proceedings which may be taken or prosecuted from the district court of the United States at Beaumont, Texas, to the circuit court of appeals for the fifth circuit, shall be heard and disposed of by the said circuit court of appeals at the terms of court held at New Orleans, except that appeals in cases of injunctions and in all other cases which, under the statutes and rules, or in the opinion of the court, are entitled to be brought to a speedy hearing, may be heard and disposed of wherever said court may be sitting."

SEC. 4. Any circuit judge of the eighth circuit as constituted before the effective date of this Act, who resides within the eighth circuit as constituted by this Act, is assigned as a circuit judge to such part of the former eighth circuit as is constituted by this Act the eighth circuit, and shall be a circuit judge thereof; and any circuit judge of the eighth circuit as constituted before the effective date of this Act, who resides within the tenth circuit as constituted by this Act, is assigned as a circuit judge of such part of the former eighth circuit as is constituted by this Act the tenth circuit, and shall be a circuit judge thereof.

SEC. 5. Where before the effective date of this Act any appeal or other proceeding has been filed with the circuit court of appeals for the eighth circuit as constituted before the effective date of this Act-

(1) If any hearing before said court has been held in the case, or if the case has been submitted for decision, then further proceedings in respect of the case shall be had in the same manner and with the same effect as if this Act had not been enacted.

(2) If no hearing before said court has been held in the case, and the case has not been submitted for decision, then the appeal, or other proceeding, together with the original papers, printed records, and record entries duly certified, shall, by appropriate orders duly entered of record, be transferred to the circuit court of appeals to which it would have gone had this Act been in full force and effect at the time such appeal was taken or other proceeding commenced, and further proceedings in respect of the case shall be had in the same manner and with the same effect as if the appeal or other proceeding had been filed in said court.

SEC. 6. This Act shall take effect thirty days after its enactment.

Approved, February 28, 1929.