[Senate Hearing 106-681]
[From the U.S. Government Publishing Office]
S. Hrg. 106-681
REVIEW OF THE REPORT BY THE COMMISSION ON STRUCTURAL ALTERNATIVES FOR
THE FEDERAL COURTS OF APPEALS REGARDING THE NINTH CIRCUIT AND THE NINTH
CIRCUIT REORGANIZATION ACT
=======================================================================
HEARING
before the
SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT AND THE COURTS
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
on
S. 253
A BILL TO PROVIDE FOR THE REORGANIZATION OF THE NINTH CIRCUIT COURT OF
APPEALS, AND FOR OTHER PURPOSES
__________
JULY 16, 1999
__________
Serial No. J-106-37
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
66-528 CC WASHINGTON : 2000
COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
STROM THURMOND, South Carolina PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania JOSEPH R. BIDEN, Jr., Delaware
JON KYL, Arizona HERBERT KOHL, Wisconsin
MIKE DeWINE, Ohio DIANNE FEINSTEIN, California
JOHN ASHCROFT, Missouri RUSSELL D. FEINGOLD, Wisconsin
SPENCER ABRAHAM, Michigan ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama CHARLES E. SCHUMER, New York
BOB SMITH, New Hampshire
Manus Cooney, Chief Counsel and Staff Director
Bruce Cohen, Minority Chief Counsel
______
Subcommittee on Administrative Oversight and the Courts
CHARLES E. GRASSLEY, Iowa, Chairman
JEFF SESSIONS, Alabama ROBERT G. TORRICELLI, New Jersey
STROM THURMOND, South Carolina RUSSELL D. FEINGOLD, Wisconsin
SPENCER ABRAHAM, Michigan CHARLES E. SCHUMER, New York
Kolan Davis, Chief Counsel
Matt Tanielian, Minority Chief Counsel
(ii)
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Grassley, Hon. Charles E., U.S. Senator from the State of Iowa... 1
Feinstein, Hon. Dianne, U.S. Senator from the State of California 5
Kyl, Hon. Jon, U.S. Senator from the State of Arizona............ 11
Torricelli, Hon. Robert G., U.S. Senator from the State of New
Jersey......................................................... 24
CHRONOLOGICAL LIST OF WITNESSES
Statement of Hon. Frank Murkowski, U.S. Senator from the State of
Alaska......................................................... 7
Statement of Hon. Slade Gorton, U.S. Senator from the State of
Washington..................................................... 9
Statement of Hon. Richard Bryan, U.S. Senator from the State of
Nevada......................................................... 20
Statement of Hon. Harry Reid, U.S. Senator from the State of
Nevada......................................................... 22
Statement of Ronald L. Olson from Munger, Tolles & Olson LLP, Los
Angeles, CA.................................................... 28
Statement of Hon. Procter Hug, Jr., chief judge, U.S. Court of
Appeals for the Ninth Circuit; Hon. Pamela Ann Rymer, circuit
judge, U.S. Court of Appeals for the Ninth Circuit, and member,
Commission on Structural Alternatives for the Federal Courts of
Appeals; Hon. Andrew J. Kleinfeld, circuit judge, U.S. Court of
Appeals for the Ninth Circuit; Hon. Diarmuid F. O'Scannlain,
circuit judge, U.S. Court of Appeals for the Ninth Circuit;
Hon. Charles E. Wiggins, senior judge, U.S. Court of Appeals
for the Ninth Circuit; and Hon. William Browning, judge, U.S.
District Court for the District of Arizona..................... 41
ALPHABETICAL LIST AND MATERIAL SUBMITTED
Browning, Hon. William: Testimony................................ 126
Bryan, Hon. Richard: Testimony................................... 20
Gorton, Hon. Slade: Testimony.................................... 9
Grassley, Hon. Charles E.:
Prepared statements of:
Justice Byron White...................................... 3
Assistant Attorney General Eleanor D. Acheson............ 118
Hug, Hon. Procter, Jr.:
Testimony.................................................... 41
Prepared statement........................................... 44
``Analysis of the Final Commission Report,'' by Chief Judge
Procter Hug, Jr............................................ 49
Kleinfeld, Hon. Andrew J.:
Testimony.................................................... 79
Prepared statement........................................... 82
Kyl, Hon. Jon: Letter from Senator Kyl to Justice Byron White,
dated Nov. 6, 1998............................................. 14
Murkowski, Hon. Frank: Testimony................................. 7
Olson, Ronald L.:
Testimony.................................................... 28
Prepared statement........................................... 35
O'Scannlain, Hon. Diarmuid F.:
Testimony.................................................... 87
Prepared statement........................................... 91
Attachments.............................................. 98
Reid, Hon. Harry: Testimony...................................... 22
Rymer, Pamela Ann:
Testimony.................................................... 59
Prepared statement........................................... 63
Exhibit A: Various letters............................... 70
Wiggins, Hon. Charles E.:
Testimony.................................................... 113
Prepared statement........................................... 114
APPENDIX
Proposed Legislation
S. 253, a bill to provide for the reorganization of the Ninth
Circuit Court of Appeals and for other purposes................ 135
Questions and Answers
Responses of Ronald L. Olson to questions from Senator Grassley.. 150
Responses of Procter Hug, Jr. to questions from Senators:
Grassley..................................................... 151
Thurmond..................................................... 152
Responses of Andrew J. Kleinfeld to questions from Senator
Grassley....................................................... 152
Responses of Diarmuid F. O'Scannlain to questions from Senator
Grassley....................................................... 154
Responses of Charles E. Wiggins to questions from Senator
Grassley....................................................... 156
Response of Jon P. Jennings, Acting Assistant Attorney General,
to a question from Senator Grassley............................ 156
Additional Submissions for the Record
Letters submitted by Senator Feinstein from:
Therese M. Stewart, Los Angeles County Bar Association, to
Senator Feinstein, dated Apr. 14, 1999..................... 158
Lee Smalley Edmon, Los Angeles County Bar Association, to
Senator Feinstein, dated Apr. 16, 1999..................... 159
Governor Pete Wilson to Senator Hatch, dated Apr. 15, 1999... 160
Raymond C. Marshall, president, the State Bar of California,
to Senator Feinstein, dated May 17, 1999................... 161
Gray Davis, State capital, Sacramento, CA, to Senator
Feinstein, dated July 7, 1999.............................. 162
Letters to Senator Grassley from:
James R. Browning, U.S. Court of Appeals of the Ninth
Circuit, dated July 21, 1999............................... 163
Peter W. Davis from Crosby, Heafey, Roach & May, dated
July 13, 1999.............................................. 165
Tony Knowles, Governor, State of Alaska, dated July 13, 1999. 166
James A. Redden, U.S. District Court of Oregon, dated July
13, 1999................................................... 167
Bob Packwood, Sunrise Research, dated July 15, 1999.......... 168
Joseph F. Weis, Jr., U.S. Court of Appeals for the Third
Circuit, dated July 30, 1999............................... 168
``Nine Divided by Three a Formula for Unification?'' by
Joseph F. Weis, Jr..................................... 169
Ronald L. Olson from Munger, Tolles & Olson LLP, dated Aug. 19,
1999........................................................... 174
Prepared statements of:
Hon. Gordon H. Smith, U.S. Senator from the State of Oregon.. 174
Prof. Arthur D. Hellman...................................... 175
Daniel J. Meador, James Monroe Professor of Law Emeritus,
University of Virginia..................................... 184
Joseph T. Sneed, III......................................... 188
Circuit Judge David R. Thompson.............................. 192
REVIEW OF THE REPORT BY THE COMMISSION ON STRUCTURAL ALTERNATIVES FOR
THE FEDERAL COURTS OF APPEALS REGARDING THE NINTH CIRCUIT AND THE NINTH
CIRCUIT REORGANIZATION ACT
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FRIDAY, JULY 16, 1999
U.S. Senate,
Subcommittee on Administrative Oversight
and the Courts,
Committee on the Judiciary,
Washington, DC.
The committee met, pursuant to notice, at 9:31 a.m., in
room SD-628, Dirksen Senate Office Building, Hon. Charles E.
Grassley (chairman of the subcommittee) presiding.
Also present: Senators Sessions, Torricelli, and Feinstein.
OPENING STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR
FROM THE STATE OF IOWA
Senator Grassley. I want to take this opportunity at the
start of this meeting to welcome everybody to this meeting and
take care of a few housekeeping matters to expedite everybody
so that they can use their time allotment very expeditiously.
All written statements will be entered into the record, so I
would urge witnesses to summarize, especially since we have so
many on this issue who want to speak.
Normally, we would limit our witnesses to 5 minutes each,
but I have expanded it to 10 minutes for our Senators and our
judges. This is with an acknowledgment that more time would be
necessary to discuss the White Commission Report and the year
that it took to put together this report.
Witnesses should also expect to receive written follow-up
questions because I doubt if all the members of the committee
are going to be able to be here, especially since we have a
vote scheduled at 10:30 a.m. And I would expect responses to
the written questions to be received by the committee 2 weeks
after receipt by the panelists.
In addition, the judges' panel was scheduled to be our
second panel. However, because Ronald Olson from the fourth
panel must attend a funeral of a close friend, we will hear
from him after the panel of Senators is finished.
I want to say that I am very happy to hold this hearing
today to receive the final report of the Commission on
Structural Alternatives for the Federal Courts of Appeals and
the Federal Ninth Circuit Reorganization Act of 1999. The
report, which was released by the Commission last December,
proposes organizing the Ninth Circuit Court of Appeals into
three regional divisions, while keeping the administration of
the circuit intact.
At the beginning of this Congress, Senators Murkowski and
Gorton introduced S. 253, the Federal Ninth Circuit
Reorganization Act of 1999, which is based upon the
recommendations of the Commission's report. In addition to the
reorganization of the Ninth Circuit, S. 253 also follows the
Commission's proposals that would allow other circuits to adopt
measures to deal with the growing caseloads.
Circuits would have the option of reorganizing themselves
into adjudicative regions in a similar manner, using two-judge
panels instead of the current three-judge panels in deciding
appeals, and establishing a district court appellate panel for
hearing certain categories of appeals.
I am not going to finish my statement at this point because
it is very statistical and very factual, and so I am going to
just put most of my statement in the record.
[The prepared statement of Senator Grassley follows:]
Prepared Statement of Senator Charles E. Grassley
Good Morning and welcome to our hearing today on the final report
of the Commission On Structural Alternatives for the Federal Courts of
Appeals and the Federal Ninth Circuit Reorganization Act of 1999. The
report, which was released by the Commission last December, proposes
organizing the Ninth Circuit Court of Appeals into three regional
divisions while keeping the administration of the circuit intact. At
the beginning of this Congress, Senators Murkowski and Gorton
introduced S. 253, ``The Federal Ninth Circuit Reorganization Act of
1999,'' which is based upon the recommendations of the Commission
report. In addition to reorganizing the Ninth Circuit, S. 253 also
follows the Commission's proposals that would allow other circuits to
adopt measures to deal with growing case loads.
Circuits would have the option of reorganizing themselves into
adjudicative regions in a similar manner, using two judge panels
instead of the current three judge panels in deciding appeals, and
establishing a district court appellate panel for hearing certain
categories of appeals.
Although the Commission looked at all of the circuits, the heart of
both the Commission's report and S. 253 deals with the Ninth Circuit.
Of the thirteen circuits in the federal judicial system, the Ninth
Circuit is currently the largest in terms of geographic size, number of
judgeships and caseload. The Ninth Circuit currently covers nine states
and over 50 million people. In contrast, the east coast of the United
States is divided up into five circuits. The Ninth Circuit is allocated
28 judgeships, nine more judgeships than the Fifth Circuit, the next
largest. Finally, the Ninth Circuit has a case load of over 8,500
appeals, almost double the average number of appeals for all other
circuits.
Due to the Ninth Circuit's large size, bills advocating splitting
the circuit have been introduced as early as the 1940s. In 1973, the
Commission on Revision of the Federal Court Appellate System, known as
the Hruska Commission, recommended that Congress split both the Fifth
and Ninth Circuits. Though the Commission's proposals were not enacted,
Congress did split the Fifth Circuit in 1981. However, it left the
Ninth Circuit intact. But the issue has remained very much alive.
Proposals to split the Ninth Circuit have been frequent throughout the
late 1980s and early 1990s. At the same time, two reports, the 1990
Report of the Federal Courts Study Committee and the 1995 Long Range
Plan for the Federal Courts, have recommended against splitting the
Ninth Circuit.
In 1995 legislation was once again introduced to split the Ninth
Circuit, and was taken up again in the 105th Congress. As part of a
compromise that many of us here were involved with, Congress authorized
a commission to study ``the structure and alignment of the Federal
Court of Appeals system, with particular reference to the Ninth
Circuit.'' In December 1998, the Commission released its final report
recommending dividing the Ninth Circuit into regional divisions as an
alternative to a circuit split.
Deciding how to deal with the Ninth Circuit and the structure of
the United States appellate system in general is a very difficult and
delicate issue. Many people, including apparently a majority of the
judges on the Ninth Circuit, feel that the circuit is doing an adequate
job of adapting itself to the problems presented by its size and
increasing case load. Others feel that the circuit is too large and
unwieldy to function properly. They argue that the number of judges on
the circuit prevents the court from deciding appeals in a timely
manner, hinders judges from working together in a ``collegial'' manner,
and prevents the court from performing its en banc function
effectively. The 1996 Subcommittee Report on the Judicial Questionnaire
I sent to the federal judges confirmed this split in opinion on whether
or not the Ninth Circuit should be restructured.
The Commission report and the legislation which we will discuss
today offers a compromise in the debate over whether or not to split
the Ninth Circuit. Instead of splitting the circuit, the suggestion is
to divide it into smaller adjudicative divisions that would enable
judges to function more effectively as a unit. This solution aims to
keep the law of a significant part of the western region of United
States both consistent and in one administrative unit, while solving
the problems that size and caseload have presented.
Senator Grassley. I will conclude by saying that I look
forward to what our witnesses today have to say about the
Commission's proposals. However, I am also interested in
learning more about the proposed regional divisions and whether
there are other alternatives to the current plan of dividing
the State of California between two different regions.
Before I turn to our witnesses today, I want to mention
that although he is not here to testify, retired Supreme Court
Justice White, who chaired the Commission, submitted written
comments in support of this legislation. Those comments will be
available for the record.
[The prepared statement of Justice White follows:]
Prepared Statement of Justice Byron White
My name is Byron White, safely until September in my home state of
Colorado. I hope the Congressional representatives will welcome my
written views about the subject matter that will be heard.
Pamela Rymer, a very experienced Ninth Circuit Judge, is a member
of the Commission, and will represent in person the Commission in a
very competent way. Judge William Browning, also a Commission member
and a district judge of the Ninth Circuit, will accompany Judge Rymer.
Professor Daniel Meador, the Executive Director of the Commission, will
present a written statement.
In late 1997, Congress created the Commission on Structural
Alternatives for the Federal Courts of Appeals. The statute specified
that the Chief Justice should appoint its five members, and he promptly
did so.\1\ The Commission began its work in early 1998, and it
presented its recommendations in a final report to the Congress and the
President, pursuant to its statutory mandate, on December 18, 1998.
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\1\ Commission members were Byron R. White, Chair; N. Lee Cooper,
Vice-Chair; Gilbert S. Merritt; Pamela Ann Rymer; William D. Browning.
The Commission was authorized to appoint an Executive Director. The
Commission chose Professor Daniel J. Meador, a very competent
selection. The statute also authorized the Federal Judicial Center and
the Administrative Office of the United States Courts to serve the
Commission, help that was essential.
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Although the creation of the Commission was prompted by
Congressional difficulty in deciding how to resolve the long-standing
debate over what, if anything, should be done about the Ninth Circuit,
the Commission was also directed to study and make recommendations
concerning the entire federal appellate system. In carrying out its
charge, the Commission held public hearings in six cities, heard from
dozens of witnesses, received dozens of written statements from others,
and spent ten months of intensive study of the nationwide structure of
our appellate courts, ``with particular reference,'' as the statute
required, to the Ninth Circuit.
This study led the Commission to two insights concerning the
structure and functioning of the federal appellate courts, and those
insights form the premises for the Commission's key recommendations.
First, there is a significant distinction between a circuit and its
court of appeals. Second, the magnitude and nature of future growth and
changes in appellate business cannot be reliably predicted and will
vary among circuits; therefore, the appellate courts should have a
flexible authority to deal with such unforeseeable changes.
The distinction between a circuit and a court of appeals is that a
circuit is an administrative entity, whereas a court of appeals is an
adjudicative body. Acting through its Judicial Council, each of the
twelve regional circuits discharges a variety of administrative
responsibilities concerning the federal courts and judges within its
territory. A court of appeals, on the other hand, is concerned solely
with deciding appeals from district courts within its circuit and from
administrative agencies. In other words, problems of circuit
administration are separable from problems of court of appeals'
adjudication.
Proceeding from that premise, the Commission found no
administrative malfunctions in the Ninth Circuit sufficient to call for
a division or realignment of the circuit. Thus, it recommended that the
circuit be left intact as an administrative unit.
But, the court of appeals in the Ninth Circuit presents a different
picture. The court has 28 authorized judgeships and has requested more;
it will undoubtedly need still more judges in the years ahead. From its
study, the Commission concluded that an appellate court of that size,
attempting to function as a single decisional entity, encounters
special difficulties that will worsen with continued growth. These can
be avoided by organizing the court into smaller decisional units (and
without dividing the circuit). Thus the Commission recommended that the
court be organized into three regionally based adjudicative divisions
and that a court called the ``circuit division'' be established to
resolve conflicting decisions among those divisions.
The Ninth Circuit has been the subject of debate and intense
controversy for many years. For that debate to continue year after year
into the future is dysfunctional and damaging to the status of the
federal judiciary in the public mind. If Congress does not accept the
Commission's recommendations, it is left with two choices: do nothing
or split the circuit. Under the circumstances, doing nothing would seem
irresponsible. Splitting the circuit would have distinct disadvantages
and is not necessary. The Commission's recommendations address the
problems that many perceive in the court of appeals, while preserving
the administrative advantages of leaving the circuit undivided.
The Commission's other insight, leading to its second premise, is
that the appellate system needs flexibility to deal effectively with
future, unpredictable changes in the size and composition of the
dockets. To this end, the Commission made three recommendations:
(1) That Congress authorize each court of appeals with more than 15
judgeships to organize itself into adjudicative divisions, with a
``circuit division'' to resolve inter-divisional conflicts;
(2) That Congress authorize each court of appeals to decide appeals
through two-judge panels in selected categories of cases;
(3) That Congress authorize the Judicial Council of each circuit to
establish district court appellate panels, each panel to consist of
two district judges and one circuit judge, to decide appeals in
designated categories of cases, with discretionary review
thereafter in the court of appeals.
If the courts exercise their discretionary authority to adopt any
of these measures, the Federal Judicial Center would be required to
evaluate the experience over a period of time and report to the
Judicial Conference of the United States. Those arrangements that
worked well could be models for other circuits; those that did not work
could be discontinued. The ability of courts to experiment in this
manner will be increasingly important in the future as dockets grow and
circumstances change.
History teaches that any recommendations for change in the courts
are likely to encounter opposition from some members of the bench and
bar. Some of that can be discounted as nothing more than instinctive
reluctance to embrace change. No proposals for dealing with the
judiciary's problems will achieve perfection, and there are advantages
and disadvantages to any proposal. In arriving at its conclusions, the
Commission weighed benefits and costs carefully, after receiving a wide
assortment of ideas from judges, lawyers, law professors, and public
officials. The Commission has carried out the most thorough study of
the federal appellate courts since the Hruska Commission a quarter
century ago.\2\ Therefore, it is to be hoped that Congress will give
serious attention to the enactment of these recommendations and that
they will have the support of a substantial segment of the bench and
bar.
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\2\ Report of Commission on Revision of the Federal Court Appellate
System (1973). That Commission's recommendation that the 5th Circuit be
split was enacted by Congress. Its recommendation that the 9th Circuit
likewise be split has never been acted on.
Senator Grassley. I would like to thank our panels for
being here and look forward to hearing their thoughts and
suggestions about the report and this legislation.
Even though you aren't the ranking minority member, if you
would like to speak for the other side, I would be happy to
receive that at this particular time.
STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Feinstein. Thank you very much, Mr. Chairman. Yes,
I would like to speak for the other side. I would also like to
thank you for holding this hearing.
We are here today, in my opinion, largely because the
Supreme Court reversed the ninth circuit in 26 out of 27 cases
in its 1996-1997 term. Since this inauspicious session, the
ninth circuit has faced incessant, unending charges that it
lies outside the mainstream of appellate jurisprudence.
As we move forward with this discussion of the ninth
circuit's future, it is critical and crucial that we get the
most up-to-date facts.
The American Lawyer recently reported on the reversal rates
of the ninth circuit in its 1998-1999 term. It reported that
the Supreme Court reversed the ninth circuit in 14 out of 18
cases where it issued definitive decisions, a reversal rate of
78 percent. The ninth circuit's own calculation shows an even
more favorable result: 11 out of 18 cases reversed.
No matter how you keep score, the ninth circuit had a lower
reversal rate last year than the fifth, 80 percent; the
seventh, 80 percent; and the eleventh, 88 percent. In 1997,
both the fifth and the eleventh circuits also had higher
reversal rates than the ninth circuit. A study of ninth circuit
reversal rates also reveals that if a problem exists on the
circuit, Clinton judges are not causing it. Currently, 20
percent of the judges in the ninth circuit are appointments of
President Clinton, yet on only eight occasions in the past 3
years has a Clinton appointee joined or authored a panel
opinion that was later reversed. In comparison, judges
appointed by President Reagan have been reversed on 30
occasions.
The fact is Clinton judges are fully in step with
mainstream jurisprudence. I think these statistics show that
the ninth circuit is operating more effectively than many would
have us believe. However, the ninth circuit can and should be
improved. Reversal rates should be lower, and the public needs
to have confidence in the job the ninth circuit is doing.
In testimony submitted to the White Commission, the Justice
Department noted,
We begin with the observation that all available
means of nonstructural reforms should be attempted and
assessed before structural changes are imposed on the
Federal courts.
I couldn't agree more.
The Justice Department is the largest consumer and
participator in ninth circuit decisions, and as such, I
strongly recommend that everyone read the comments on the U.S.
Department of Justice on the tentative draft report of the
Commission on Structural Alternatives for the Federal Courts of
Appeals. I have read it, and I agree with much of what the
Justice Department has to say.
I hope to introduce on Monday legislation that will enact
targeted, nonstructural reforms to the ninth circuit. Entitled
``The Ninth Circuit Court of Appeals En Banc Procedures Act of
1999,'' this legislation would institute three major changes to
the ninth circuit procedures.
First, it reduces the number of judges required to grant an
en banc hearing.
Second, it increases the size of en banc panels from 11
judges to a majority of the circuit.
And, third, it imposes a system of regional calendaring in
which at least one judge from the geographic region where the
case arises would be assigned to that case.
Let me state categorically, as a Californian, as a member
of this committee, I will forcefully do everything I can to
prevent the division of the State of California. Nothing I can
think of could have more strong and adverse impacts not only on
the administration of justice but on the treatment of
Californians on vital legislation before the ninth circuit.
The criminal caseload of this circuit is a heavy one. The
immigration caseload of this circuit is 50 percent of all of
the cases in the Nation. To have people with the likelihood of
being treated differently in one part of the State than in
another is, frankly, something I could not stand by and watch
happen.
So I am anxious to hear the comments of my colleagues. I
have a reasonably open mind, will introduce this legislation on
Monday, hope it will have cosponsors from other Senators in
this circuit, and look forward to hearing from my colleagues.
Thank you, Mr. Chairman.
Senator Grassley. Thank you.
Normally, I wouldn't have other Senators give opening
statements, but Senator Sessions, who is reasonable, asked for
60 seconds. So I will give Senator Sessions 60 seconds.
Senator Sessions. Well, I am pleased to have this great
panel here. I know you are concerned about this issue. I have
been a critic of the ninth circuit. I have numbers that
demonstrate that from 1987 through 1992, every year the ninth
circuit's reversal rate was substantially higher than the
overall reversal rate for the rest of the country. In 1996,
they were reversed 95 percent of the time; whereas, the
nationwide reversal rate, excluding the ninth circuit, was 62
percent. There are 10, 20, and 30 percent differences almost
every year.
So I do think there is a legitimate concern that the ninth
circuit is not in the mainstream of American law.
Senator Grassley. Thank you, Senator Sessions.
Now I will go to the panel. Normally, I go left to right,
but if my panelist colleagues don't object, I think it would be
more appropriate for me to start with Senator Murkowski, then
Senator Gorton, then go to Senators Kyl, Bryan, and Reid, if he
shows up. Is that OK?
STATEMENT OF HON. FRANK MURKOWSKI, A U.S. SENATOR FROM THE
STATE OF ALASKA
Senator Murkowski. I very much appreciate that, Mr.
Chairman. I am conducting a hearing on Chinese espionage as
chairman of the Energy Committee.
Thanks for the opportunity to testify on this Senate bill
253 to reorganize the Ninth Circuit Court of Appeals. As you
know, Congress has attempted to reorganize the ninth circuit
since World War II. The time for action, in my opinion, is long
overdue, and I think justice bears the price for Congress'
inaction.
In 1997, Congress mandated the White Commission to once and
for all--which is seldom done around here, but it was the
intent, at least, to resolve the severe problems of the ninth
circuit court.
Many of the members of the Senate strongly fought for such
a conscientious and thorough study. Senator Boxer indicated
that she was certainly very, very open to splitting the court.
The problem is how we go about it, we ought to have a study.
And Senator Feinstein, who is with us today, was quoted as
stating, ``A study is the only practical approach to dealing
with an issue as important as the structure of the U.S.
court.''
Now, this idea of dividing the State of California, I can
understand the sensitivity. But please understand, you know, in
my State of Alaska, we are not part of California. Yet the
court is in California. So we are somewhat, you know,
indifferent in that regard because we don't have the same
affinity that you do as the court obviously makes a significant
contribution to California as well.
But putting that aside, I think what we have now is the
results of the study. For the good of the people of the ninth
circuit, I would hope we can act in a bipartisan manner to
support what we all agreed we needed was a study. I don't think
we need another study on another study. That is the traditional
way of doing nothing around here.
Mr. Chairman, the restructuring of the ninth circuit, as in
Senate bill 253, as evidenced by chart 1, is warranted, if you
will look at that chart, for three important reasons: one, its
size and population; second, its caseload; and, third, its
astounding reversal rate, which has been discussed this
morning.
The ninth circuit is gigantic by any means of the
imagination, by far the largest of the 13 circuits, encompasses
9 States stretching from the Arctic Circle--think about that--
the Arctic Circle to the border of Mexico. You are looking at
some 5,000 miles on the west coast.
The population: Over 50 million people are served by the
ninth circuit, almost 60 percent more than the next largest
circuit--60 percent more. By the year 2010, the ninth circuit's
population will be more than 63 million. That is a 43 percent
increase in just 11 years. That is chart 3 which you can see
over there.
The caseload: The ninth circuit's docket is daunting, last
year over 9,000 new filings, over 1,000 more than the next
largest circuit. The result: Cases are decided more slowly,
prompting many to forego the entire appellate process. In
brief, the ninth circuit is a circuit where justice perhaps is
not always as swift and not always served.
And the reversal rate: The gigantic caseload means it is
nearly impossible for judges to keep up with the legal
developments, inevitably resulting in, one, inconsistent
decisions and, two, a high reversal rate, which we have
acknowledged.
Now, chart 4, this tracks the ninth's reversal rate. Look
at 1997 where the Supreme Court reversed an astounding 19 of 20
ninth circuit court cases. That is a 95 percent reversal rate.
And chart 5--we are keeping the chart lady busy here. Chart
5, between 1997 and 1999, the ninth circuit was responsible for
33 percent of all cases reversed by the Supreme Court--33
percent.
I don't mean any disrespect to the distinguished chief
judge of the ninth circuit by citing these figures. I believe
that he and the circuit are simply overworked and in need of
some relief, and this is what the study proposed.
Now, why is the reversal rate so high? Well, the circuit is
simply too big. Ninth circuit judges are unable to keep up with
the daunting 9,000 cases. As the report reflects, only about
half of the ninth circuit judges are able to read all or most
of the published opinions. And in reading the testimony of some
of the witnesses today, that is the severest critic. They
simply don't have time to read other judges' opinions. They
don't really get a feel for the court.
Of the four Supreme Court Justices who wrote to the
Commission on the ninth circuit, all were of the opinion that
the ninth circuit must be changed. And I submit their
statements for the record.
[The statements referred to are located in the appendix.]
Senator Murkowski. Additionally, Chief Justice Rehnquist
strongly endorsed the Commission's report:
I share many of the concerns expressed by my
colleagues. The proposal to create three divisions of
the ninth circuit appears to me to address head-on most
of the significant concerns raised about that court and
would so with minimal to no disruption in the circuit
administration's structure.
On July 8, the Chief Justice wrote to me stating: ``One, I
continue to support the recommendations of the Commission. I
wish you well in your legislative effort.''
But what about the critics, Mr. Chairman? More judges will
resolve the problem, they say. Well, more is not better. In the
words of my former colleague and our revered friend, former
Alabama Supreme Court Justice Howell Heflin, ``The addition of
judges decreases the effectiveness of the court and potentially
diminishes the quality of justice.''
Others say some judges will oppose the split. Well, one-
third of the ninth circuit judges strongly favor Senate bill
253, and with due respect to the judicial bench who oppose the
division, the judges of the fifth circuit were not originally
in favor of Congress dividing that court, either. They weren't
in favor of it. But it was the right thing to do, as we have
seen. Now, we in this timeframe have that opportunity to do the
right thing.
Finally, Mr. Chairman, remember that it is Congress'
constitutional duty to restructure jurisdictions to ensure that
justice is not hindered. We cannot forget that we have that
duty and obligation. Indeed, there is nothing unconstitutional,
antijudicial, or anti-ninth circuit about fixing the problems
of the ninth circuit.
Final points. Our bill is cost-effective by retaining one
administrative office. No new courthouses are needed, and our
bill is a blueprint for circuits to handle future caseload
growth. Moreover, it goes far in strengthening consistency and
predictability in law, and that, Mr. Chairman, is what the
people of the ninth circuit deserve.
Last, I want to personally thank the members of the
Commission. Their sense of duty, diligence, and wisdom is
reflected in their report. Here is the report, Mr. Chairman,
and I only ask that Congress has the prudence to follow its
thoughtful recommendations. That is our obligation.
Thank you for the opportunity.
Senator Grassley. Thank you, Senator Murkowski.
Senator Gorton.
STATEMENT OF HON. SLADE GORTON, A U.S. SENATOR FROM THE STATE
OF WASHINGTON
Senator Gorton. Mr. Chairman, long before this Commission
was created, long before the action by the Senate, in which I
played a major part in creating new circuits out of the ninth
circuit, I have dealt with this very distinct problem. Senator
Feinstein to the contrary, it didn't come up in 1997 with a
higher reversal rate.
I began to feel seriously about the division of the circuit
when I was Attorney General of the State of Washington in the
early 1970's. My office was convinced that if we could get the
Supreme Court to take certiorari of a ninth circuit case, we
are going to win. And most of the time, you know, we did just
that.
We were convinced then that there was a lack of
collegiality or consistency in ninth circuit decisions due to
its size. So this isn't a new problem.
In fact, in a Harvard Law Review published in 1969--now,
Mr. Chairman, that is 30 years ago--a professor at the
University of Michigan Law School commented:
As the court has enlarged to meet the burgeoning
caseload, however, there is a serious threat that the
enterprise of maintaining the law of the circuit will
gradually collapse because of the inherent weakness of
its operation. Indeed, as the size of the court has
increased, the likelihood of differences among judges
has increased, and a wider variety of idiosyncrasies is
likely to appear in their decisions. While there is a
limit to the number of different viewpoints possible in
a given case, nevertheless, the larger number of panel
variations possible, the more likely it is that an
aberrational view can command an occasional majority.
The finding of the committee of the Judicial Conference
that a court of more than nine judgeships is likely to
be more unstable than a healthy legal system should
tolerate seems reasonable.
Now, that is 30 years ago, Mr. Chairman. The present 28-
judge court and the lottery system of assigning three-judge
panels, you can be appointed a judge of that court at the age
of 40 and never serve with the same panel twice in an entire
career. It is impossible to come up with the kind of
collegiality that a good court of appeals ought to attain under
circumstances like that.
Four years after that Law Review article, the
congressionally appointed Hruska Commission concluded that the
ninth circuit was too big and contained too many judges to be
effective. It recommended a split. Congress didn't act. Since
then, the authorized number of judges has increased to 28, and,
finally, 22 years after the Hruska Commission recommendation,
the Senate voted to divide the circuit.
Those who opposed the split, however, argued successfully
in the House of Representatives that the Hruska Commission
recommendations were stale and that there needed to be a more
contemporary study. We agreed and we created the White
Commission.
Now, they were appointed by the Chief Justice of the United
States, Mr. Chairman. They came up with the unanimous
recommendation. It seems to me at this point it is simply time
to accept the recommendations of that Commission.
I may say not at all incidentally that I regard the
Commission report as better than the creation of the new
circuits, which the Senate passed in 1995. That did raise the
question of how many circuits we might eventually have, but the
generalized statement of the White Commission that when any
court of appeals reaches a certain size it should have the
opportunity to divide into divisions is, I think, extremely
sound. And the recommendation means that we can stabilize the
number of circuits and still create a degree of collegiality
that is lacking at the present time.
I am delighted that Senator Feinstein's proposal will at
least guarantee that one judge in a three-judge panel comes
from the general area from which the appeal arises. The White
Commission simply requires that two do so, a majority. We may
not be that far apart, at least as far as the way in which
justice is to be administered is concerned.
Nevertheless, Mr. Chairman, this kind of division, this
kind of cure, it seems to me is absolutely necessary, and if
the Congress can also come up with a way in which we don't have
to deal with this in the future because these divisions can
take place internally, we will have rendered, I think, a
terrific service.
Now, each of us is, of course, parochial. I am as well.
Senator Kyl and I worked very hard on the previous iterations
of this system. He is not completely--he is not satisfied with
the particular division that is recommended by the White
Commission. Senator Feinstein is not either. I don't have a dog
in that fight. The division that is created here in the ninth
circuit for the Pacific Northwest is perfectly satisfactory to
me and to Senator Murkowski.
I may say incidentally that when we passed the bill, the
Senators from Hawaii determined through their bar that Hawaii
would prefer to be in the new Northern Division than staying
with California. I suppose it is perfectly possible to create a
three-division structure with California as its own division in
this connection if that is the preference of the people who
represent those various States. But the problem exists and the
problem isn't going to go away with more band-aids.
The thoughtful criticism of the recommendation by the
Commission on Structural Alternatives from Procter Hug, the
chief judge of the ninth circuit, questions why we should opt
for an untried proposal over, ``the time-tested procedures now
in place.'' Well, I would turn the question around. Why not
adopt the Commission recommendations from a former
distinguished Justice of the Supreme Court of the United
States? The procedures of the ninth circuit may, as Judge Hug
asserts, be time-tested but they got an F on that test. It just
simply doesn't work.
The Commission, chaired by Justice White, has done an
extraordinary job and has made a compelling case for an
approach that differs from the status quo, differs from the
status quo plus that the Senator from California talks about,
and differs from the one that we came up with here several
years ago, probably because they spent more time studying it
than any of the rest of it does.
I think the answer lies more in human nature than in the
nature of the Federal court system. People are inherently
conservative about their own institutions, not always in their
political philosophy but at least with respect to their
willingness to change. We generally don't like change. The
status quo may be highly imperfect or seriously flawed, but it
is familiar, comfortable, and so we cling to it.
I ask you, Mr. Chairman, and the members of this
subcommittee to keep this in mind as you listen to the
testimony today and try to separate the substantive criticisms
of the Commission's recommendations from those criticisms that
are, in fact, based on a natural inclination to resist change.
But change, Mr. Chairman, in this case is desperately needed.
It has been needed for 30 years. We are never going to have a
better opportunity to do it than right now.
Senator Grassley. Thank you, Senator Gorton.
Senator Kyl. Then, Senator Reid, you came in. I was going
to do it in the order of the sponsors, Senator Kyl, Senator
Bryan, Senator Reid. Is that OK?
Senator Reid. Fine with me.
Senator Grassley. Senator Kyl.
STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF
ARIZONA
Senator Kyl. Thank you, Mr. Chairman and members of the
committee. First of all, I would like unanimous consent to put
a written statement and a letter dated November 6, 1998, to
Justice White from me into the record as part of my testimony.
Senator Grassley. They will be received and included.
Senator Kyl. Thank you, Mr. Chairman.
As a member of this committee, a Senator from Arizona, the
State generates more appeals in the ninth circuit than any
other State except California, a member of the bar who
practiced law in the ninth circuit for about 20 years, wrote a
lot of briefs and argued several cases before the ninth
circuit, and even took some on up to the U.S. Supreme Court
from there--reversing ninth circuit decisions I had lost--I
have a keen interest in how the ninth circuit is configured.
I think it is clear that the ninth circuit has problems. I
don't think that can any longer be disputed. And I agree with
Justice White and the Commission that changes are warranted. In
that regard, let me just cite two things, one of which is not
in my statement.
Justice O'Connor wrote a letter to the Commission. She came
from the ninth circuit as a circuit judge in Arizona, which is
part of the ninth circuit, as you know and she said that, ``The
circuit is simply too large,'' that some division or
restructuring of the ninth circuit seems appropriate and
desirable.
Justice Kennedy also, who was a ninth circuit judge before
going to the U.S. Supreme Court, in a letter to the Commission
said,
A court which seeks to retain its authority to bind
nearly one-fifth of the people of the United States by
decisions of three-judge panels, many of which include
visiting circuit or district judges, must meet a heavy
burden of persuasion.
And I believe that that is correct, and in that regard, I think
the comments just made by Senator Gorton are very apropos.
There are a lot of reasons relating to reversal rates,
delays in deciding cases and so on why these comments are
correct. I am going to move on--assuming that there is some
degree of consensus that a change is warranted--to the
recommendations of the Commission.
I believe the Commission came up with the right concept
that allowing the ninth circuit to maintain its administration
as a circuit is appropriate while dividing the adjudicatory
function of the court into divisions is the best way to solve
the problems that almost everyone agrees exist. My principal
concern is with the specific recommendation the Commission made
with respect to those divisions.
It all depends on what degree of priority you assign to
different factors as to how you come out in the creation of
divisions. How important do you think it is to assign roughly
equal caseloads or have roughly equal division of population,
to have contiguity, to keep California intact, to have
geographic affinity, to have no more than three divisions,
let's say? All of those are important considerations, and
depending upon how much weight you give to any one of them, you
come out differently.
If, for example, you assign a very high priority to keeping
California intact, then you need to come out with a division
which has California as a separate division and then perhaps a
couple of other divisions within the circuit. That leaves you,
though, with about 60 percent of the caseload in the California
division, and that is why the pressure to divide California.
If, on the other hand, you assign a higher priority to
caseload distribution, then there are ways to achieve that
roughly equally if you divide the circuit into four divisions,
for example. You could have roughly equal divisions if you did
that, but that would require dividing California.
Under the Commission's recommendation, there are three
divisions, one of which is the Southern Division. The problem
from day one with the recommendations of the Commission is the
Southern Division already needs to be divided again. It would
have almost 50 percent of the population and caseload all by
itself. Now, that is of particular interest to me because it
has the southern part of California and Arizona, and that group
has 47 percent of the circuit's caseload, 46 percent of its
population, and those are all of the fastest growing district
court divisions and cities in the country.
Los Angeles, San Diego, and Phoenix are the circuit's three
most populous cities. They are respectively the 2d, 6th, and
7th most populous cities in the country and among the very
fastest growing. So under the Commission's recommendations, by
the time you put this into place, you would already need, under
its own criteria, to divide the circuits once again--or divide
the divisions once again so that you could have a more equal
distribution of caseload.
As a matter of fact, I think it is instructive that the
Commission itself said: ``The concentration of appeals in the
southern part of the circuit makes it impossible to divide the
court's workload equally among the three divisions.'' So they
acknowledge under their recommendation that they failed to meet
one of the most important tests, which is a roughly equal
division of caseload.
The only way to achieve that roughly equal division is,
instead of having three divisions within the circuit, to have
four. And one of the recommendations that I make in a letter
that I have now made a part of the record is to consider
dividing the circuit into four rather than three divisions,
which would result in caseload distributions of 22, 23.9, 23.7,
and 30.4 percent respectively, the 30.4 being the southern
California division, but that would require a division of the
rest of California.
Mr. Chairman and members of the committee, the bottom line
is this: There is a problem, there needs to be some division,
but we are going to have a hard time agreeing on what that
division is because of all of the different parochial interests
we have. I urge the committee to continue this conversation, to
have more hearings, to have a lot of informal meetings among
all of those of us who are most interested, and try to come to
some resolution as to how we can do this in a way that meets
all of the needs that we have and meets the problems that have
been identified by the Commission. Unless we are willing to
engage in that kind of a conversation, frankly, nothing will
happen because each one of us has the ability to stop any one
particular plan from moving forward.
So I commend the committee, and, Mr. Chairman, I commend
you for holding this hearing. It is a very, very important
subject matter for us, and I urge the committee to continue
these conversations to try to come to some resolution that will
be satisfactory to all of us.
[The letter follows:]
U.S. Senate,
Washington, DC, November 6, 1998.
The Hon. Byron White,
Chairman Commission on Structural Alternatives for the Federal Courts
of Appeals,
Thurgood Marshall Federal Judiciary Building, Washington, DC.
Dear Justice White: As a Senator from Arizona (the state which
generates more appeals than any other Ninth Circuit state except
California),\1\ a member of the Senate Judiciary Committee and the
Courts Subcommittee, and as someone who practiced law in the Ninth
Circuit for nearly 20 years, I have a keen interest in matters
affecting the Ninth Circuit. I would like to accept the invitation of
the Commission on Structural Alternatives to offer comments on the
draft report.
---------------------------------------------------------------------------
\1\ Commission on Structural Alternatives for the Federal Court of
Appeals (Draft Report) (Oct. 1998) (hereinafter ``Draft Report'') at
48.
---------------------------------------------------------------------------
Overall, I believe the draft report is responsive to Congress'
request and will be helpful in our deliberation. I compliment the
Commission for its thoughtful, constructive recommendations.
My principal concern is that, while the Commission's proposal of
organizing the Ninth Circuit Court of Appeals into regional
adjudicative divisions is good in concept, the Commission should
evaluate other options for the proposed configurations. It would be
most helpful to Congress if the Commission examined in detail a variety
of alternatives and provided a thorough analysis of the reasons for and
against the alternatives. From the Commission's draft report, it is
unclear why the Commission configured the divisions the way it did; the
report contains no explanation.
Ultimately, the question of reconfiguration depends on what factors
are assigned the highest value--caseload, population, contiguity,
consistency of maritime law, keeping California intact, geographic
affinity, having no more than three divisions, adhering to a ``three-
state'' rule, etc. The Circuit could be divided or split many ways
depending on which factors are the driving considerations. In short,
the report would be much more helpful to Congress if it discussed which
factors should be given priority. I would like to illustrate the point
of emphasizing different criteria by evaluating three plausible
options.
possible options
Keeping California intact: Separate division or circuit for California
If it is important to keep California intact, then perhaps it would
be best for California to constitute a separate division or a separate
circuit. The Commission states that it would be ``undesirable'' to
split California between circuits.\2\ But why not make California its
own circuit? With 61.3 percent of the Circuit's caseload,\3\ a
California circuit would still be one of the nation's largest circuits
in terms of caseload and population--and the remainder of the circuit
would be a reasonable size.\4\
---------------------------------------------------------------------------
\2\ Draft Report at 46.
\3\ Office of the Circuit Executive, United States Court of Appeals
for the Ninth Circuit (based on filings for year ending December 31,
1997) (updated November 1998).
\4\ The Commission's desire to keep California as part of the Ninth
Circuit in order to ensure that maritime laws remain consistent on the
Pacific Rim could be seen as puzzling. Specifically, under the
Commission's proposal, there would be three different divisions on the
Pacific Rim (and California would be cut in half) and decisions made in
one division would not bind any other division. But by making
California its own circuit, the Pacific Rim would have two circuits--a
manageable amount considering that the eastern seaboard and Gulf Coast
have six circuits.
---------------------------------------------------------------------------
Moreover, if it is undesirable to split California between
circuits, then perhaps California should not be split into divisions.
Why not make California its own division? The caseload split would be
approximately 60-40, which many people would consider reasonable.
I know that the Commission wants to maintain the court of appeals
as presently aligned to respect the character of the West as a distinct
region,\5\ but California is different enough from the other states
that creating a California circuit or division would arguably not harm
the West as a region.
---------------------------------------------------------------------------
\5\ Draft Report at 45.
---------------------------------------------------------------------------
Finally, I am aware of the oft-expressed view that a circuit should
be comprised of at least three states to maintain a federalizing and
regionalizing function. But it could be more prudent to have a state
such as California its own circuit or division than to divide it into
divisions containing other states. Indeed, if California were its own
circuit or division, it would have a larger caseload than seven of the
remaining eleven circuits.\6\ Perhaps concerns about bifurcation should
outweigh fealty to a ``three-state'' rule. Having one state comprise a
circuit or a division seems reasonable considering that in many
circuits one state dominates. For example, five circuits (the Second,
Third, Fifth, Seventh, and Eleventh) have just three states. In each of
these circuits, one state dominates: New York has 64 percent of the
Second Circuit's caseload; Pennsylvania has 66.5 percent of the Third
Circuit's caseload; Texas has 73.6 percent of the Fifth Circuit's
caseload; Illinois has 57.8 of the Seventh Circuit's caseload; Florida
has 57.3 percent of the Eleventh Circuit's caseload.\7\ It is unclear
why some take the view that having three states in a circuit or a
division (even though two of the states have only a small portion of
the caseload) is so important that it precludes creating a separate
circuit or division for a large state.
---------------------------------------------------------------------------
\6\ California would have a greater caseload than the First, Third,
Seventh, Eighth, Tenth, Eleventh, and D.C. Circuits. Judicial Business
of the United States Courts, Annual Report of the Director (1997),
Table B-3A (twelve-month period ended September 30, 1997).
\7\ Judicial Business of the United States Courts, Annual Report of
the Director (1997), Table B-3A (twelve-month period ended September
30, 1997).
---------------------------------------------------------------------------
It would be helpful to Congress if the Commission discussed the
idea of creating a separate division or circuit for California.
Caseload: Four-way division
If dividing California is not a problem--and if caseload
distribution is a priority--then it makes sense to consider a four-way
division. Under such a division, caseload (and population) is most
equitably distributed. In fact, each division would contain a higher
percentage of cases than the 21 percent comprising the Commission's
proposed Northern Division; yet the highest percentage of cases (30.4
percent) would not come close to the 47 percent in the Commission's
proposed Southern Division.
The Commission notes that ``pressure continues, and there is little
likelihood that caseloads and work burdens on the judges will lessen in
the years ahead.'' \8\ This is particularly true in Arizona and
Southern California. Southern California is the Circuit's fastest
growing region in terms of caseload. From 1987 to 1997, the appeals
from the Southern District of California increased 143.8 percent and
from the Central District of California increased 74.5 percent.\9\
Based on these increases, the caseloads in the Southern and Central
Districts of California are apt to be, respectively, the third and
first largest in the Circuit in 2007 \10\--comprising more than 43
percent of the Circuit's caseload.\11\ Further, as I mentioned above,
the Commission states that ``[n]ext to California, Arizona generates
more appeals than any other state in the present Ninth Circuit'';\12\
and Southern California (i.e., the Southern and Central Districts of
California) produces the largest number of appeals in the Circuit--38
percent of the Circuit's appeals.\13\
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\8\ Draft Report at vii.
\9\ Ninth Circuit Appeals Filed by Fiscal Year of Filing and
District of Origin (provided by Commission).
\10\ Ninth Circuit Appeals Filed by Fiscal Year of Filing and
District of Origin (provided by Commission).
\11\ Ninth Circuit Appeals Filed by Fiscal Year of Filing and
District of Origin (provided by Commission).
\12\ Draft Report at 48.
\13\ Office of the Circuit Executive, United States Court of
Appeals for the Ninth Circuit (based on filings for year ending
December 31, 1997) (updated November 1998).
---------------------------------------------------------------------------
Additionally, Los Angeles, San Diego, and Phoenix are the Circuit's
three most populous cities and are, respectively, the second, sixth,
and seventh most populous cities in the nation, according to recent
figures of the U.S. Bureau of the Census provided by the Library of
Congress.\14\ Also, Arizona and Nevada contain seven of the nation's 22
fastest growing cities: Chandler (2), Scottsdale (7), Glendale (14),
Mesa (17), and Phoenix (22), Arizona; Henderson (1) and Las Vegas (6),
Nevada.\15\
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\14\ Population Division, U.S. Bureau of the Census, SU-96-10.
\15\ Population Division, U.S. Bureau of the Census, SU-96-14.
---------------------------------------------------------------------------
In short, putting Arizona and Southern California--two of the most
rapidly growing regions--in the same division may provide, at best, a
temporary solution, and prove unworkable in the near future. Very soon,
these components of the proposed Southern Division may have to be
divided into two roughly equal parts. That seems impossible without a
reconfiguration of all of the divisions.
The Commission states that ``[t]he concentration of appeals in the
southern part of the circuit makes it impossible to divide the court's
workload equally among the three divisions * * *'' \16\ Given this
difficulty, and the problem of having to re-divide the Southern
Division, it might be preferable to have four divisions, structured as
follows:
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\16\ Draft Report at 39 n.90 (emphasis added).
------------------------------------------------------------------------
Caseload 1 Population 2
4-Way Proposal (percent) (percent)
------------------------------------------------------------------------
Western Division: 22.0 17.5
Arizona, Nevada, and Southern
California
------------------------------------------------------------------------
Northern Division: 23.9 25.1
Northwest, Hawaii, Guam, NMI
------------------------------------------------------------------------
Middle Division: 23.7 25.6
Northern and Eastern California
------------------------------------------------------------------------
Southern Division: 30.4 31.8
Central California
------------------------------------------------------------------------
1 Office of the Circuit Executive, United States Court of Appeals for
the Ninth Circuit (based on filings for year ending December 31, 1997)
(updated November 1998).
2 Population Estimates Program, July 1996, U.S. Bureau of the Census.
Under this scenario, the caseload (and population) distribution
would be much less lopsided than under the Commission's tripartite
division. Under the Commission's proposal (see chart below), the
Northern Division would contain 21 percent of the Circuit's caseload,
thereby apparently making 21 percent an acceptable threshold for
caseload. Under the four-way proposal suggested above, every division
would meet this threshold and no division would come close to the 47
percent caseload in the Commission's proposed Southern Division. Thus,
if caseload distribution is of paramount importance, then for a more
enduring partition, it might be reasonable to place Arizona, Nevada,
and the Southern District of California in one division, the Northern
and Eastern Districts of California in another division, the Central
District of California in another division, and the Northwest and the
Pacific Islands in the Northern Division.
Commission's proposal
From the Commission's proposal, it is unclear which criteria were
given priority--perhaps geographic affinity dominated. Although the
divisions may have geographic affinity, the caseload and populations
are unevenly distributed:
------------------------------------------------------------------------
Caseload1 Population2
Commission Proposal (percent) (percent)
------------------------------------------------------------------------
Northern Division: 21.0 22.4
Northwest
------------------------------------------------------------------------
Middle Division: 32.0 31.5
Northern and Eastern California,
Hawaii, Guam, NMI, and Nevada
------------------------------------------------------------------------
Southern Division: 47.0 46.1
Central and Southern California and
Arizona
------------------------------------------------------------------------
1 Office of the Circuit Executive, United States Court of Appeals for
the Ninith Circuit (based on filings for year ending Dec. 31, 1997)
(updated November 1998).
2 Population Estimates Program, July 1996, U.S. Bureau of the Census.
Perhaps a factor other than geographic affinity was given priority;
this seems likely in light of the recent recommendation that Arizona be
placed in the Middle Division with Nevada and the Northern and Eastern
Districts of California.\17\ Some have commented that there is a high
volume of commercial dealings between Arizona and California and that
Arizona relies on California caselaw. It is unclear (and would be
helpful to know) to what extent such connections exist and how
important such connections should be in determining division lines.
---------------------------------------------------------------------------
\17\ Letter of Chief Judge Proctor Hug to Commission on Structural
Alternatives for the Federal Courts of Appeals, October 29, 1998.
---------------------------------------------------------------------------
Furthermore, many people seem to assume that the northwest states
(Alaska, Idaho, Nevada, Oregon, and Washington) must be grouped
together, but if one starts with that premise, then options are limited
and dividing the circuit becomes very difficult, especially if a four-
way division is not considered. Given the current size and the
continued growth (in both caseload and population) in the Central and
Southern California Districts, as well as Arizona and Nevada, it seems
as though there will always be a problem if there is a three-way
division. Assuming that a four-way division is acceptable, it might be
reasonable (in terms of caseload, population, geography, among other
factors) to modify the Commission's recommendation by placing Arizona
and Nevada in a separate division:
------------------------------------------------------------------------
Caseload Population
4-Way Proposal (percent) (percent)
------------------------------------------------------------------------
Northern Division: 23.9 25.1
Northwest, Hawaii, Guam, NMI
------------------------------------------------------------------------
Middle Division: 23.7 25.6
Northern and Eastern California
------------------------------------------------------------------------
Southern Division: 38.0 37.0
Central and Southern California
------------------------------------------------------------------------
Western Division: 14.4 12.0
Arizona and Nevada
------------------------------------------------------------------------
Other proposals
I have only discussed the Commission's proposal (as well as a
modification of it) and two other plausible options. For the
Commission's review, I am attaching several additional permutations,
each with strengths and weaknesses in terms of caseload, population,
geography, and other factors. (For ease of comparison, I am also
including the charts contained in this letter.) It would be helpful to
Congress to have the Commission's views on the relative strengths and
weaknesses of various options.
moving arizona to the tenth circuit
I am also interested in exploring the idea of moving Arizona to the
Tenth Circuit, an idea that seems to have significant merit because it
is one of only three proposals recognized by the Commission as having
geographic integrity, serving both the federalizing and regionalizing
functions of federal courts, and being consistent with the principle of
state contiguity in the lower 48 states.\18\
---------------------------------------------------------------------------
\18\ Draft Report at 46.
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The Commission states that disconnecting California from Arizona
would be undesirable to the extent that ``Arizona follows California
law in several areas, and has significant commercial ties.\19\ It may
be more accurate to observe that, as some say, Arizona has more in
common with the Rocky Mountain states than the Pacific coast
states.\20\ I would appreciate an examination of these two lines of
thought and would appreciate a more thorough examination of the
feasibility of moving Arizona to the Tenth Circuit.
---------------------------------------------------------------------------
\19\ Draft Report at 48.
\20\ Draft Report at 48.
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court of appeals sitting in phoenix at regular interval
No matter what Division that Arizona is placed in, I think that the
Court of Appeals should sit in Phoenix at regular intervals.\21\ This
seems reasonable because, as noted above, Phoenix is the seventh most
populous city in the nation and one of the Circuit's most populous
cities,\22\ as well as one of the nation's fastest growing cities.\23\
---------------------------------------------------------------------------
\21\ Cf 28 U.S.C. 48.
\22\ Population Division, U.S. Bureau of the Census, SU-96-10.
\23\ Population Division, U.S. Bureau of the Census, SU-96-14.
---------------------------------------------------------------------------
circuit division
I am also concerned about the size of the proposed circuit division
which will resolve inter-divisional, intra-circuit inconsistencies.\24\
I think that the Commission is right to note that it ``seem[s]
paradoxical to respond to concerns about the present limited en banc by
creating a conflict body that is even smaller.\25\ The Commission
concludes that the Circuit Division's composition will ensure that the
views of the majority of the court's judges will predominate in that
resolution.\26\ But how will a body of seven judges (representing 28)
do this? Currently, the limited en banc, which is comprised of 11
judges, is often criticized for not being representative of the
circuit. I am concerned that a body of seven judges would similarly
produce decisions that are unrepresentative of the entire court. I
believe that the Circuit Division should be expanded to 13 or 15
members.
---------------------------------------------------------------------------
\24\ Draft Report at 44.
\25\ Draft Report at 44.
\26\ Draft Report at 44.
---------------------------------------------------------------------------
structural options for the courts of appeals and discussion of
appellate jurisdiction
Finally, I was interested in the proposals discussed in parts 3 and
4 of the report, such as authorizing the courts of appeals to decide
selected cases with two-judge panels and authorizing the judicial
council of any circuit to establish district court appellate panels to
provide first-level review for designated categories of cases that
involve error correction, with discretionary review by the courts of
appeals.
I was particularly interested in the statement of Judge Merritt and
Justice White on ways to reduce the caseload presented by diversity
cases. I do not believe that their plan suggesting changes in federal
jurisdiction exceeds the Commission's mandate. As Judge Merritt points
out, his plan recommends restructuring diversity jurisdiction by
Congress and is aimed at reducing circuit court caseload substantially.
This certainly seems to meet the statutory command to make
``recommendations for such changes in circuit boundaries or structure
as may be appropriate for the expeditious and effective disposition of
the caseload of the Federal Courts of Appeals.'' Congress can benefit
from all of the Commission's recommendations. I hope that Judge
Merritt's statement becomes part of the final report and that the
Commission members consider including other proposals that will help
with the ``expeditious and effective disposition of the caseload of the
Federal Courts of Appeals.
conclusion
In closing, I would like to reiterate my appreciation for the
Commission's diligent work and detailed draft report. I hope that my
concerns can be addressed in the final report. The points I have raised
are not meant to imply that reform should not move forward. In fact,
lawyers frequently provide me with anecdotal evidence that it takes too
long for cases to reach conclusion in the Ninth Circuit, although
statistics may show otherwise. I believe firmly that the reasons the
Commission cites for division warrant speedy action.
Please do not hesitate to contact me if I can be of assistance.
Thank you.
Sincerely,
Jon Kyl,
United States Senator.
------------------------------------------------------------------------
Caseload Population
Commission Proposal (percent) (percent)
------------------------------------------------------------------------
Northern Division: 21.0 22.4
Northwest
------------------------------------------------------------------------
Middle Division: 32.0 31.5
Northern and Eastern California,
Nevada, and Hawaii
------------------------------------------------------------------------
Southern Division: 47.0 46.1
Central and Southern California and
Arizona
------------------------------------------------------------------------
------------------------------------------------------------------------
Caseload Population
4-Way Proposal ``A'' (percent) (percent)
------------------------------------------------------------------------
Northern Division: 23.9 25.1
Northwest and Hawaii
------------------------------------------------------------------------
Middle Division: 23.7 25.6
Northern and Eastern California
------------------------------------------------------------------------
Southern Division: 38.0 37.0
Central and Southern California
------------------------------------------------------------------------
Western Division: 14.4 12.0
Arizona and Nevada
------------------------------------------------------------------------
------------------------------------------------------------------------
Caseload Population
4-Way Proposal ``B'' (percent) (percent)
------------------------------------------------------------------------
Northern Division: 23.9 25.1
Northwest and Hawaii
------------------------------------------------------------------------
Middle Division: 23.7 25.6
Northern and Eastern California
------------------------------------------------------------------------
Southern Division: 30.4 31.8
Central California
------------------------------------------------------------------------
Western Division: 22.0 17.5
Southern California, Arizona, and
Nevada
------------------------------------------------------------------------
------------------------------------------------------------------------
Caseload Population
Option #1 (percent) (percent)
------------------------------------------------------------------------
Northern Division: 23.9 25.1
Northwest and Hawaii
------------------------------------------------------------------------
Middle Division 53.3 50.9
Northern, Central and Southern
California
------------------------------------------------------------------------
Southern Division: 22.8 24.0
Eastern California, Arizona, and
Nevada
------------------------------------------------------------------------
------------------------------------------------------------------------
Caseload Population
Option #2 (percent) (percent)
------------------------------------------------------------------------
Northern Division: 23.9 25.1
Northwest and Hawaii
------------------------------------------------------------------------
Middle Division 54.1 57.4
Northern, Central and Eastern
California
------------------------------------------------------------------------
Southern Division: 22.0 17.5
Southern California, Arizona, and
Nevada
------------------------------------------------------------------------
------------------------------------------------------------------------
Caseload Population
Option #3 (percent) (percent)
------------------------------------------------------------------------
Northern Division: 23.9 25.1
Northwest and Hawaii
------------------------------------------------------------------------
Middle Division 38.1 37.6
Northern, and Eastern California,
Arizona, and Nevada
------------------------------------------------------------------------
Southern Division: 38.0 37.3
Central and Southern California
------------------------------------------------------------------------
------------------------------------------------------------------------
Caseload Population
Option #4 (percent) (percent)
------------------------------------------------------------------------
Northern Division: 23.9 25.1
Northwest and Hawaii
------------------------------------------------------------------------
Middle Division 45.7 43.8
Northern, Eastern, and Southern
California, Arizona, and Nevada
------------------------------------------------------------------------
Southern Division: 30.4 31.8
Central California
------------------------------------------------------------------------
------------------------------------------------------------------------
Caseload Population
Option #5 (percent) (percent)
------------------------------------------------------------------------
Northern Division: 23.9 25.1
Northwest and Hawaii
------------------------------------------------------------------------
Middle Division 30.4 29.5
Eastern, and Southern California,
Arizona, and Nevada
------------------------------------------------------------------------
Southern Division: 45.7 45.4
Northern and Central California
------------------------------------------------------------------------
Senator Grassley. Thank you, Senator Kyl.
Now, Senator Bryan.
Senator Kyl. Mr. Chairman, before Senator Bryan, might I
add one other request? Judge Bill Browning from the Tucson
District Court is here. He was a member of the Commission, and
I am not certain whether he is on your panel to testify or not.
Senator Grassley. He is not.
Senator Kyl. I would urge the committee to consider at
least permitting him to make a brief comment or be available
for questions from the committee. He has much to offer.
Thank you.
Senator Grassley. Thank you.
Senator Bryan.
STATEMENT OF HON. RICHARD BRYAN, A U.S. SENATOR FROM THE STATE
OF NEVADA
Senator Bryan. Thank you very much, Mr. Chairman and
members of the subcommittee. I appreciate the opportunity to
testify before you today on the issues raised by the White
Commission and the Federal Ninth Circuit Reorganization Act
sponsored by our colleague, Senators Murkowski and Gorton. My
comments today will focus on the Commission's recommendations
as they relate to the Ninth Circuit Court of Appeals.
Let me observe at the outset that I am pleased that we are
having this discussion today in the context of a hearing before
the Judiciary Committee. As you know, there have been efforts
in the past to divide the ninth circuit through legislative
riders on appropriations bills. In my view, an issue of this
magnitude, one that will have far-reaching implications not
only for the West but for the entire Nation, deserves to be
considered in a thoughtful, deliberative manner by this
committee. The old saying, ``If it ain't broke, don't fix it,''
summarizes my view about the proposals to divide the circuit,
and I am pleased to see that the White Commission came to the
same conclusion.
I am concerned, however, with the Commission's proposal for
other structural changes in the ninth circuit. The
recommendations of the White Commission represent an attempt to
develop a solution to a problem that in my view does not exist.
I have great respect for the members of the Commission and for
their hard work over the past year, especially given the
relatively short timeframe in which they were instructed to
complete their study. I do not feel, however, that they have
cited any empirical evidence or other data that justifies the
proposed divisional structure for the ninth circuit described
in their report.
One of the most frequent criticisms of the court by those
who support the division is the 14 months on average it takes
from the notice of appeal to the determination of the case,
which is 4 months greater than the national average. There is a
simple reason for this delay. Congress has refused to fill the
vacancies that exist on the court. There are currently seven
vacancies on the court which represent one-quarter of the
authorized judgeships, and for the better part of the last 4
years, the court has functioned with only 18 active judges. It
is unfortunate that the Commission was not able to analyze the
impact of these vacancies on the court's timetable for
disposing of its caseload.
It is also a bit ironic that some members of the Senate who
have advocated splitting the ninth circuit have also played a
leading role in blocking the effort to fill the vacancies on
the court.
Another criticism which has been perceived is a lack of
consistency in maintaining a uniform body of Federal law in the
Western States due to the size of the court and the large
number of possible panel contributions. Although I do not
believe there is any evidence to support this criticism, I also
do not feel that the Commission's recommendation to create
three new adjudicative divisions, including two within the
State of California, will do anything to address this perceived
problem. In fact, if implemented, it could have just the
opposite effect, and I know that Judge Hug will address this
issue in more detail.
But I think it is important to note that the overwhelming
majority of judges and attorneys in the ninth circuit are
satisfied with its current structure.
Underlying the many criticisms that have been leveled at
the court is the real issue that some members have proposed
splitting the ninth circuit from time to time. They simply do
not like the decisions rendered by the court. Some sponsors
have made clear their displeasure with many decisions issued by
the court, particularly in the area of environmental law.
Surely not all of the decisions of the ninth circuit--or, for
that matter, any circuit--come down the way that all of us
would favor. I myself have cosponsored legislation to reverse
certain decisions of the ninth circuit in the past. But I do
not believe that differences over the decisions rendered by the
ninth circuit are adequate grounds either to split the court or
to restructure it.
One of the most telling aspects of the Commission's report,
in my opinion, is contained in the additional views of Judge
Merrit and Justice White where they state,
We believe that no legislation extending Federal
jurisdiction into areas that traditionally fall within
the scope of State regulation or prosecution should be
enacted without full and informed consideration of the
appropriate balance of jurisdiction between State and
Federal courts, as well as the effect that proposed
legislation will have on the ability of the Federal
courts, including the courts of appeal, to carry out
their core functions.
This admonition to Congress is well taken, and it is not a
partisan issue. Members of Congress on both sides of the aisle
have been increasingly guilty over the years of engaging in a
game of one-upsmanship to show which party is tougher on crime,
for example, and the result has been the federalization of a
wide array of criminal conduct in this country.
One of the results of this endeavor has been to increase
the caseload of our Federal courts. I believe it is time for
Congress to address this trend before we move to do serious
damage to the administration of justice in our Federal court
system.
Mr. Chairman, I thank you and the members of the
subcommittee for letting me share my thoughts with you today. I
believe that the Ninth Circuit Court of Appeals is functioning
as well today, if not better, than any other circuit throughout
the country, and I would be extremely cautious to implement
costly and untested structural changes.
I thank you again, Mr. Chairman.
Senator Grassley. Senator Bryan, thank you.
Now, Senator Reid.
STATEMENT OF HON. HARRY REID, A U.S. SENATOR FROM THE STATE OF
NEVADA
Senator Reid. Mr. Chairman, members of the committee, I am
very grateful that you are holding this hearing. It is
extremely important, as Senator Kyl and the other people who
have testified this morning have said.
Senator Kyl, it appears--and we have spoken personally on
this on a number of occasions--favors a split of some kind.
Senator Murkowski favors the Commission's divisional approach.
Mr. Chairman, there is some concern as to how we are going
to handle the alleged problems in the ninth circuit. As I have
indicated, some of our colleagues have expressed reasons why
they feel the ninth circuit should be either split entirely or
into three intracircuit divisions recommended by the White
Commission.
While the ninth circuit undoubtedly faces challenges which
must be addressed, I think that we should approach this very
cautiously. I was involved with the establishment of the
Commission, as a number of the Senators who are now testifying
and have testified were. I recognize the efforts they have put
forth. I commend the Commission for stating their
recommendations are not based upon any disagreement of court
decisions. I have always been concerned that some of the
advocates of structural change within the ninth circuit have
been driven by dissatisfaction with certain decisions handed
down by the circuit, and I commend the Commission for
distancing themselves from such motivations.
Mr. Chairman, Congress last passed legislation which
significantly changed the structural composition of the Federal
Courts of Appeals back in 1981 when the States of Alabama,
Georgia, and Florida were separated from the fifth circuit to
create the eleventh circuit. I am sure we could identify some
similarities and differences between the pre-1981 fifth circuit
and the ninth circuit today.
But, Mr. Chairman, there is one distinction that deserves
particular attention this morning. In 1981, the overwhelming
majority of the circuit judges of the fifth circuit and lawyers
who practiced in the fifth circuit agreed that such a major
overhaul was the best course of action to follow.
As we consider structural changes in the ninth circuit here
this morning, the exact opposite is here today as we had in
1981. In January of this year, in a meeting of the ninth
circuit's 35 active and senior circuit judges, 25 judges
rejected an outright split or the Commission's recommendations
for intracircuit divisions. Only 4 of the 35 voted to approve
intracircuit divisions; also, only 4 voted to approve a circuit
split; and 2 of the judges abstained completely.
Furthermore, an overwhelming majority of attorneys who
practice in the ninth circuit oppose these radical structural
changes. This opposition is bipartisan, Mr. Chairman. Actually,
it is nonpartisan. In fact, of the two judges from whom you
will hear today who will argue against a circuit split or
adoption of the Commission's recommendation, one is a
registered Democrat, the other is a registered Republican.
There is another area of opposition that should be of
special significance to our colleagues, especially the chairman
and the ranking member of this subcommittee, whose States are
not within the ninth circuit. The chief judges of eight of our
country's circuit courts of appeals have publicly opposed the
intracircuit divisional approach as recommended by the White
Commission.
Mr. Chairman, I would also like to call the committee's
attention to the statement written and submitted by Prof.
Arthur Hellman of the University of Pittsburgh School of Law.
He has actually spent most of his life, his academic life,
dealing with the Federal courts of appeal, and he has devoted a
significant amount of time to the ninth circuit. I think you
will find his statement very useful.
Mr. Chairman, I would like to say a few additional things.
First, the State of Nevada is very proud of the chief judge of
the ninth circuit. Procter Hug has rendered great service to
the State of Nevada and to this country as a judge of the Ninth
Circuit Court of Appeals. Senator Bryan and I had the distinct
pleasure of serving with his father in the Nevada State
Legislature. Procter Hug, Sr., was one of the finest men that I
have ever dealt with. He was a wonderful member of the State
legislature, a great educator, and now one of our high schools
in Reno, NV, is named after Procter Hug, the chief judge's
father. So we are very proud of Procter Hug, Jr., as well as
Procter Hug, Sr.
I would also like to direct your attention to the good work
done on this committee by Senator Feinstein, the senior Senator
from the State of California. She is going to introduce
legislation sometime next week which I think is extremely
important, and I am going to support her in her efforts. As I
understand her legislation, she would recommend three basic
changes:
One, en banc panels would be required to be a majority of
the active judges. Right now we have 28 judgeships, so that
would mean 15 would be a majority.
Two, Senator Feinstein would require that at least one
judge on any panel be from the same region from where the case
has originated.
And, three, the decision to hear a case en banc currently
requires the approval of 51 percent of the judges. She would
drop that percentage to one-third of the judges.
I think this is an important improvement of what we now
have. I would hope that she will introduce that legislation
next week with me as an original co-sponsor.
Mr. Chairman, I think that what we do here today--what you
do here today, I should say, is of extreme importance to the
country. The ninth circuit is the largest circuit in terms of
population, and when you add in Alaska, certainly in
territory--you add Alaska to any circuit, and it will be the
largest region, the largest circuit. But we feel that we don't
need to radically change what is going on in the ninth circuit.
I think the approach of Senator Feinstein is one that we should
address very closely. I think it is one we could pass. I think
we could do it very quickly. And if that does not work--which I
think it would--then we could take another look down the road.
Senator Grassley. Senator Reid, I thank you. I thank all of
our colleagues. I have no questions of this panel. I would turn
to Senator Torricelli if he does or anybody else that is on the
committee that wants to ask our colleagues questions.
Senator Torricelli. Thank you, Mr. Chairman.
Mr. Chairman, I have a statement I would like to put in the
record at the beginning of the hearing.
Senator Grassley. It will be received and included in the
record.
[The prepared statement of Senator Torricelli follows:]
Prepared Statement of Hon. Robert G. Torricelli, a U.S. Senator From
the State of New Jersey
Thank you Senator Grassley for holding today's hearing. I would
like to welcome Senators Feinstein, Kyl, Reid, Murkowski, Bryan, and
Gorton, as well as the other distinguished witnesses.
Article I of the Constitution grants Congress the power to
structure the Federal Courts: ``The Congress shall have Power * * * To
constitute tribunals inferior to the supreme court.''
Article III reiterates that power: ``The judicial power of the
United States shall be vested in one Supreme Court, and in such
inferior courts as the Congress shall from time to time ordain and
establish.''
As with other exercises of our enumerated constitutional powers, I
believe those advocating action carry a heavy burden. There must by
necessity be a strong presumption that Congress retain the current
court structure.
Beginning with the Judiciary Act of 1789, in which we created the
lower federal courts, Congress has exercised its constitutional power
with great care.
In 1891, we passed the Circuit Court of Appeals Act, which
essentially created the modem federal court structure. Since 1891, we
have acted only four times to structurally alter the circuit courts:
creating the 10th Circuit in 1929, the D.C. Circuit in 1948, the 11th
Circuit in 1981 and the Federal Circuit in 1982.
Thus, history demonstrates that we have shown ample discretion in
altering the structure of the circuit courts. We have done so only when
a consensus existed that such change was warranted.
As I reviewed the White Commission report, and the testimony to be
given today, it became clear that there is no unanimity on the
questions before us--other than that fact that the Ninth Circuit is
geographically large.
But there was never a question that the Ninth Circuit is large. It
encompasses nine states, Guam, and the Commonwealth of the Northern
Mariana Islands. The Ninth Circuit Court of Appeals is the largest
circuit in the country with 28 authorized judgeships--although it
should not go without noting that there are 7 current vacancies on the
circuit, a full 25 percent of the seats.
But clearly size is not the question. Instead, we must ask
ourselves if the actions we take can make the administration of justice
in those federal courts more efficient and effective. The White
Commission found: ``There is no persuasive evidence that the Ninth
Circuit is not working effectively.'' As we will hear today, the
majority of the judges and attorney's who practice in the Ninth Circuit
day in and day out do not think that a change is necessary.
Finally, we must guard--perhaps as much as any other time in the
legislative process--against the insertion of political or ideological
purposes into this process.
Senator Reid. Mr. Chairman, I know you may have some
questions, but there are people here who could answer them. I
know you have heard a lot of excuses, but I have got my wife
waiting.
Senator Torricelli. That is the best one possible.
Senator Grassley. Anybody who needs to go obviously can go,
but I want to make sure that my colleagues get a chance to ask
questions.
Senator Feinstein.
Senator Feinstein. I have no questions.
Senator Grassley. Senator Sessions.
Senator Sessions. I guess my question would be: Do any of
you want to go further than division and go to an actual split?
I was present the day the eleventh circuit was created from the
fifth circuit split. It worked marvelously and naturally, and I
am almost stunned that people aren't unified at least in some
sort of plan to divide this circuit.
Senator Gorton. Well, if I could take that on, of course,
from the early 1970's, I have been a devotee of the Hruska
Commission recommendation that literally we have a division
into new circuits. That was the proposal that I have introduced
in the past, and I think Senator Kyl has, and it was what was
passed by the Senate here.
The division structure had not occurred to me at any time
there. And as I said in my opening remarks, I am willing to
admit from my perspective that the White Commission report is
preferable to the bill that I was introducing previously. It
seems to me that it met, for all practical purposes, all of the
previous criticisms of the earlier bills, and because it is
universal in nature, it removes the pressure for an increasing
number of circuits in the United States as the population and
caseload of the whole country grows.
So I guess my conclusion is that I like this better than I
did my earlier bills.
Senator Sessions. Well, that is good.
Senator Kyl. Mr. Chairman, might I make a comment on that?
Senator Grassley. Senator Kyl.
Senator Kyl. I think there are two reasons why the White
Commission concept, if not the specific proposal, is warranted.
The first is political. A circuit split is probably a bridge
too far. You have seen the division among us even to have
adjudicative divisions and leaving the circuit intact. That is
going to be hard enough, let alone splitting the circuit.
But there is a second substantive reason why I think the
White Commission was ingenious. There is a point at which if
you continue to split circuits, you are probably going to need
to consider some kind of intermediate appellate court between
the circuit court of appeals and the U.S. Supreme Court to
resolve the ever-increasing number of conflicts among the
circuits. That is something that I think would be very, very
bad, and I know a lot of people agree. And this is one way to
obviate that, to create a situation in which the number of
circuits remain the same and you work out any disagreements
within the circuit at the circuit level with a special division
that would resolve any conflicts between the divisions or among
the divisions so that you don't increase the number of
conflicts among the circuits which the U.S. Supreme Court would
have to resolve.
So it is a way to deal with the future problem of
increasing population in this country and the pressure to
continue to divide circuits. I think it is pretty ingenious in
that regard.
Senator Sessions. Well, I am glad to hear you are favorably
disposed to consider that. I don't have a strong feeling one
way or the other, other than I do not believe it is an
effective way to run a court to have one this large. We had
testimony--Senator Grassley did--in this committee last year
when at least two chief judges of other circuits said that 12
or 14 judges was as large as a circuit should get. The ninth
circuit is already twice that size, and its ratio of population
to judges is even more than that.
So I think addressing the problem is necessary, and I am
open to your suggestions on how to do it.
Senator Bryan. Mr. Chairman, may I respond? I won't repeat
all of my reasons, but as Senator Sessions knows, I favor
neither the split nor the administrative division. California
is clearly the 800-pound gorilla in this scenario, but the
majority, overwhelming majority of practitioners and members of
the bar of my State, which, by contrast to California's 32
million, is about 1,800,000, is very comfortable with the
present situation. I, like my colleague and friend, Senator Kyl
of Arizona, am a member of the bar. I have practiced before the
ninth circuit, and I would simply say for those members of the
bar in my State and the members of the judiciary, we favor
retaining the present system.
I just think the record needs to reflect that.
Senator Torricelli. Mr. Chairman.
Senator Grassley. Yes, Senator Torricelli.
Senator Torricelli. Thank you, Mr. Chairman.
For me, and perhaps for me alone, this is an argument of
first impression. I have heard discussion of this problem, but
the ninth circuit is a long way away from home. And I haven't
been exposed to a great deal of this before.
Let me simply just suggest the following impression: If
indeed this is a problem of size and efficiency, I think all of
us would be sympathetic. It is persuasive that the White report
noted that it did not discover difficulties in the operation of
the circuit. That bears some considerable weight.
One is left wondering whether there is a concern for the
operation of the circuit or whether this is a modern equivalent
of FDR's court-packing attempt for ideological reasons.
It is further suspect because there are seven vacancies in
the circuit, and I trust the same enthusiasm with which people
would change the circuit is now leading to pressure to assure
that those vacancies are filled so that the circuit is
operating properly.
I come to no judgment on any of these, but they are
questions in my mind.
I am, though, left finally with this. For whatever the
States involved should decide--and I believe the rest of us in
the Senate should largely be guided by the States that are in
the circuit and what you think is best for the operation of
justice in your own region of the country--the one thing that
goes to a national concern where I believe we have a legitimate
interest is this issue of dividing a State into these
divisions. To me it is somewhat of a contradiction of our
concept of national union and how the courts have worked with
the States. You can imagine a State administrative action or
action of the California State Legislature or, indeed, an
agency of the Federal Government in California being in these
two divisions, what it will create in a temptation for forum-
shopping, or if at any moment there are contradictory views in
the two divisions, and the time in which it takes the circuit
or the Supreme Court to resolve these conflicts, the State of
California or Federal agencies or private citizens would be
left in legal limbo.
So I believe this is largely a judgment for all of you to
reach, and I think much of the Senate will be guided by your
wisdom. But there is in my mind that one national concern in
that order in the courts, avoidance of conflict, and efficiency
is a legitimate national concern. And at least because it is
the first time that this plan of division has been raised, that
will attract some attention no matter what you should all
decide.
Thank you, Mr. Chairman.
Senator Grassley. Senator Torricelli, I thank--yes, Senator
Gorton.
Senator Gorton. Two points to Senator Torricelli. Whatever
you think of the ideological predilections of your colleagues
in the Senate, Senator, I doubt that they can be applied to
Justice White. And, second, I think there is a distinct
difference between dividing a State into two circuits and what
is little more than an administrative division within the same
circuit, which ultimately comes up with the same laws, but it
is a consideration and it is one that not only Senator
Feinstein raised but Senator Kyl as well.
Senator Torricelli. If I could, Mr. Chairman, I think that
is a good clarification. But because this is the first time
this is done, it isn't entirely clear to me how this would
function. Whether it is administrative or whether we are adding
a new layer of appeal which will cause not only expense and
delay, but conflict. And it is hard to know because it hasn't
been done before. That is why I think it should be discussed.
Senator Kyl. Mr. Chairman, Senator Torricelli, might I just
make one clarification? The White Commission recommendation is
that all of the administrative functions of the court be
retained centrally. So all of the administration would remain
as it is. The only thing that would change would be the
adjudicatory panels, the way that the judges are assigned to
actually hear cases and decide cases. That would be done by
division.
The points you raise I think are well made, and all of
these are important considerations, not just for the ninth
circuit but because they could theoretically form a precedent
for dealing with other circuits as they become larger.
Senator Torricelli. There is a central question that I
generally don't understand, unlike most questions asked in this
institution where people already have the answers in mind. If
the California State Government takes some administrative
action which someone believes is contrary to the U.S.
Constitution, and they must decide whether or not to go and
file this with a district court in San Francisco or Los
Angeles, how do we avoid the fact that they are reviewing who
the judges are and trying to predetermine a result by engaging
in forum-shopping?
Senator Gorton. Well, they are doing that now.
Senator Kyl. Yes, Mr. Chairman, if I could, every good
lawyer seeks to determine where the best forum would be, and
when you have different district courts among which to choose
from, obviously that is one of the considerations that you take
into account before you file your lawsuit.
The district courts are the court of first impression. That
is where the lawsuit is filed, so that is done today. I think
it is a bit of a stretch to say now let's see which one of the
appellate divisions would decide this depending upon where we
file it, and then you are going to have to figure out, well,
which one of the judges are likely to sit on the panel. It
becomes rather attenuated to use that as a criterion. It is
theoretically possible, but I think the way the Commission
resolved that was to say that the decisions of any division are
not binding on the other divisions and that you have a conflict
resolution mechanism for that. It is still theoretically
possible, but I think a fairly small matter in the overall
scheme of things.
Senator Torricelli. Thank you.
Senator Bryan. Mr. Chairman, if I might, Senator, before we
embrace this divisional concept, I think we want to listen very
carefully to the testimony of Judge Hug. He believes, that this
concept will make it more difficult to develop a consistency in
circuit law, and, I think this ought to concern every
litigant--that by so doing, we add an additional level of
potential appeal which will delay finality. He will make that
argument far more persuasive than I, but I hope you will have a
chance to hear from him and, if not, to read his testimony.
I thank you, Mr. Chairman.
Senator Grassley. I thank all my colleagues.
Senator Grassley. I now call Ronald Olson. Mr. Olson is a
partner with the Los Angeles-based law firm of Munger, Tolles &
Olson. He is also a former member of the ABA Committee on the
Federal Judiciary and the former chairman of the ABA Litigation
Section.
Mr. Olson, we offer you our condolences and understand why
you asked to go early, and also, thank you for making it here
today to testify under these circumstances. So would you please
proceed?
Oh, let me announce not only for you but anybody else,
whenever we have this vote, I have worked out with Senator
Sessions that I would go vote early and come back, and then he
would go vote, so we will not have to call adjournment or
temporary recess of the committee hearing.
Would you proceed, Mr. Olson.
STATEMENT OF RONALD L. OLSON FROM MUNGER, TOLLES & OLSON LLP,
LOS ANGELES, CA
Mr. Olson. Thank you, Senator Grassley. Let me say it is a
high honor to appear before your committee, a high honor to
appear before my Senator, Senator Feinstein, and just in case
it may add a wee bit of credibility to what I have to say, the
first 22 years of my life were spent in the great city of
Manilla, IA.
Senator Grassley. Spelled with two L's.
Mr. Olson. Two L's. We both know that.
Senator Grassley. It is one of our 945 outstanding
communities in Iowa. [Laughter.]
Mr. Olson. As a starting premise, I presume that whether
one looks from the perspective of a designer of Federal
institutions, as each of you does, or from the perspective of a
user of Federal institutions, as I do, I think we would all
readily and quickly agree that our U.S. Courts of Appeals are
among our most important Federal institutions.
From my perspective as a user, a lawyer for 33 years,
appearing in Federal courts from here to California, certainly
including the courts in the eighth circuit, the fifth, the
eleventh, and even in the second, and the great State of New
Jersey, I can honestly say that I know of few Federal
institutions that operates as effectively or as efficiently as
the U.S. Court of Appeals for the Ninth Circuit.
I think it is somewhat ironic that the very document that
has served as the basis for the proposed legislation to
fundamentally change and divide the ninth circuit does not
disagree. The White Commission, whose individual members I have
the highest regard for, found, ``There is no persuasive
evidence that the ninth circuit is not working effectively.''
It also wrote,
Maintaining the Court of Appeals for the Ninth
Circuit as currently aligned respects the character of
the West as a distinct region. Having a single court
interpret and apply Federal law in the western United
States * * * is a strength of the circuit that should
be maintained.
These findings alone, in my opinion, and in the opinion of
two different American Bar Association committees that have
recently looked at it, the Litigation Section and the Standing
Committee on Federal Court Improvements, as well as my own
hometown bar association, the Los Angeles County Bar
Association, believe that these findings alone should blunt any
proposal to fundamentally change or divide the ninth circuit.
With all due respect to Justice Kennedy, who was cited by
Senator Kyl a moment ago, it seems to me he has it wrong. The
heavy burden of persuasion should not be on those who are
advocating the status quo but, rather, on those who are
proposing to change a fundamental Federal institution that has
served our country well. That is point one.
Point two is the faulty notion that greater regionalism
will somehow advance federalism. Each circuit court implements
congressional policy and direction from the Supreme Court. I
know of no jurisprudence or judicial philosophy or political
philosophy that suggests that the national legal function, the
interpretation of those laws that you Senators every day work
to bring to the benefit of our public, nothing that suggests
that national function is better attained through smaller and
more sharply regional courts. But that is exactly what the
White Commission has proposed.
I would like to insert here, if I may, a comment that is
responsive to what I have heard from the Senators thus far this
morning, a huge emphasis on the number of reversals coming out
of the ninth circuit, opinions coming out of the ninth circuit
reversed by the Supreme Court.
I want to say, first of all, that it seems to me the
emphasis on numbers is misplaced, for a whole lot of reasons.
In the first instance, for every case that is taken by the
Supreme Court and reversed, there are hundreds--if you want to
look at statistics--where the court must have gotten it right.
But even if you look at the reversals, it seems to me
inappropriate to take an aberrational year like 1997 and turn
it into a reason to, again, fundamentally change a Federal
institution. As Senator Feinstein pointed out, more recent
experience is more even, and in the statistical sense,
competitive and appropriate vis-a-vis the other circuits.
Second, on that point, I know of absolutely no evidence to
suggest that there is a correlation between size and getting it
right. None. I don't think there is any that exists.
So far as I know, most of those decisions that were
reversed from the ninth circuit came out of three-judge panels,
just like most of the decisions that get reversed elsewhere.
Three judges, not 28, 24, or 18. But it is three judges who
come together with their own independent minds and their own
assessment of the legal issues involved.
The Supreme Court takes--and I know this from personal
experience of having briefed hundreds of cert petitions--takes
only the most important and most difficult questions. And when
there is a reversal, it is often by a split decision. And to
condemn a court because they come up short on the 5-to-4 vote
or the 6-to-3 vote seems to me to be a little wrong-headed.
Third, the proposal that has been made would, in my
opinion, only exacerbate the very problem that the Senators
seemed to have focused most sharply on. One should understand
that the Ninth Circuit Court of Appeals is served by one of the
most sophisticated clerk's offices in the country. Among other
things that they do is code every issue that comes before the
court in every appeal, and by coding these issues, they are
within minutes able to relate related cases to the panels
deciding any particular case.
The myth that because there are hundreds of opinions coming
out of the ninth circuit and judges can't read all as a reason
for the number of reversals is, as I suggest, a myth. The
judges read those decisions that are most pertinent and
relevant to the case before them, and they have many, many
tools, including this coding technique, for accomplishing that.
The panel decisions that exist today in the ninth circuit
are binding throughout the circuit. Every judge must respect a
panel decision that has been made. Under the proposal that will
be made--that has been made, each of the three divisions will
have decisional autonomy. They are to give substantial weight,
whatever that means, to the decisions of the other divisions,
but they have decisional autonomy. They can ignore it. In
effect, there is an encouragement to differences of view rather
than what we now have, a mandated consistency.
All judges today participate in proposing and voting on
whether a case should go en banc, every single judge, and when
a case is rejected for en banc, every single judge has
participated in that judgment that it does not deserve en banc
consideration.
When it does go to an en banc hearing, it is correct that
it is heard by only 11 of the judges, and I applaud Senator
Feinstein and her proposal for improving the current en banc
process that we have. And I think it would go a long way toward
adding some additional consistency to what we have in the ninth
circuit. But I want to contrast that with what the proposal
would do.
The proposal would have three divisions, each, as I say,
having decisional autonomy. There would be a separate en banc
process in each of those divisions. Only the so-called resident
judges would vote on whether or not something should go en
banc. Those judges sitting out of division, a California judge
sitting in the Northern Division, for instance, would not even
have the right to vote. And, of course, all of the judges
sitting in the other divisions would not have the right to
vote. So there would be less not more participation by the
court as a circuit in the en banc process.
I would point out that one of the things that would occur
in the en banc process as proposed is that after there has been
a decision by one of the divisions that is in square conflict,
as the White Commission puts it, with a decision in another
division, then and only then would this circuit division, the
overriding division, court, have the ability to take that
conflict and resolve it. It would deny circuitwide en banc
consideration of what we now have available to us in addition
to conflicts, and that is cases of exceptional importance. And
we all know that there are a number of cases of exceptional
importance. That is not even a justification for getting to the
circuit division consideration.
So I suggest to those who are concerned about the reversal
rate that the proposal that has been made will not be helpful,
but harmful to what your objective seems to be.
Seemingly, the premise of the White Commission report is
the hunch--no analysis has been put forward, but the hunch that
greater efficiency and effectiveness will be attained through a
tripartite Ninth Circuit. But in practice, for us litigants and
lawyers, as well as for the Government, the proposed imposition
of regional divisions is sure to add, not subtract, to cost and
complexities.
From the Government perspective, staffing and offices of
the separate divisions would surely be duplicative and
expanded. This splitting to achieve efficiency is not only
counterintuitive, but it is at odds with what we see going on
every day in our private sector. Today what we have are
mergers--mergers that are being justified to the public and to
regulators by size, efficiencies, and by the elimination of
overlapping employees and functions. This proposal goes the
exact opposite direction.
From the user perspective, the absurdity seems obvious.
Conducting California statewide business under the jurisdiction
of two different Federal court divisions, each with decisional
autonomy but for those square conflicts I spoke of, and the
notion that a litigant in the West now would have three levels
of Federal decisionmaking--the district court, the regional
division, and the circuit division--is sure to add to
inefficiency, time delay, and expense for both business and
litigation. And it would also for those same reasons place the
Western United States at a disadvantage versus other parts of
the country where States operate under a single Federal court
system with only two levels of Federal decisionmaking.
My clients, who regularly complain to me about too much
litigation expense, time, and complexity, would not see this as
a step in the right direction.
The ninth circuit because of its size has, in fact, been
one of the most innovative of the Federal circuits. Often it
has been first with procedural innovations and automation to
the benefit not only of the ninth circuit but all Federal
circuits.
Senator Sessions [presiding]. Mr. Olson, I believe your
time has expired considerably, so----
Mr. Olson. I thank you very much for the consideration you
have given me, and I am delighted to submit my statement and
respond to any questions that you would have.
Senator Sessions. We would be delighted to. Senator
Grassley and Senator Feinstein have gone to vote. I could at
least get some of my questions out of the way while they are
gone. I am not sure we would want to start the next panel until
they return.
Mr. Olson, I suppose my observation just as a person who
spent 15 years full-time in Federal court practicing before
Federal judges is that we ought to and the goal is to have one
national law. Senator Biden made a speech on the floor one
night, and I happened to be presiding, and he said he didn't
like the idea that some of the members who wanted to split the
circuit wanted to do so because they thought they could have
home law as opposed to national law and there wasn't but one
Constitution. It was one of his best, most eloquent efforts, I
thought. That is the goal, to have a uniform national law.
My observation would be that there is a consistently high
reversal rate in the ninth circuit. I do not think that is
necessarily the most critical issue as to whether it ought to
be divided, but I think it is a factor. Would you disagree with
me that the larger the court gets, the harder it is to have
collegiality, to work out differences, and to speak with one
voice?
Mr. Olson. Let me split that up. With all due respect, I
think I would disagree, Senator Sessions. With regard--at least
in part, with regard to collegiality, certainly any institution
that gets larger lacks some of the personal contact that one
has in a smaller institution. But as our former Chief Judge
Wallace pointed out, the Federal courts are there to serve not
the judges and not their personal relationships, but the
people. And I don't think that ought to be a controlling
consideration.
I will also point out, however, that the ninth circuit has
been in the forefront of using all of the new means of
communications to increase collegiality. They conduct
conferences, for instance, by videoconference. They have for
many, many years communicated through e-mail, which seems to be
overtaking the rest of the world, although it hasn't caught up
with me yet. So collegiality I think is a bit overrated.
With regard to the reference to getting it right and the
reversal rate, again, I want to underscore that by splitting
into three divisions, it will only increase the likelihood of
there being differences as opposed to increase the likelihood
of there being a consistency and decrease the likelihood of
reversals.
Senator Sessions. Well, wouldn't that review system that
they have set up work out the differences in a more effective
way with a new system than with the present system?
Mr. Olson. No; and let me try to hit that head-on.
First of all, with regard to the review system, let's make
sure we understand it. Each division would have decisional
autonomy. That means it is, as the White Commission puts it,
supposed to give substantial weight to the other divisions, but
it is not bound by it. So they can make their own decisions.
Once there is a decision made in a particular circuit, it
gets reviewed in that division only if a vote of the resident
judges in that division say it should be reviewed en banc in
that division.
The only decisions that get attention at the circuit
division level, which I think the Senator is referring to
mostly, are those where there is, as the White Commission puts
it, a square conflict, whether it be by a panel decision or an
en banc decisions, but a square conflict between decisions in
two different divisions. That leaves a huge, huge room for
disagreement.
I will tell you one thing. I have spent time clerking for a
Federal judge, and I have spent a lot of time advocating to
Federal judges. And for those who want to avoid a square
conflict in the way in which an opinion gets written, I suspect
it would be fairly easy. I don't think you are going to get the
kind of consistency out of this review system that is
suggested.
Senator Sessions. Well, I think fundamentally there are two
problems with the ninth circuit's reversal rate. One of them is
that philosophically they are not in tune with the rest of the
country. I have read their criminal opinions for 15 years, and
I have seen many criminal cases, and it was a well-known fact
all over this country that when you don't find any other law to
support a criminal defendant's case, you can find a case in the
ninth circuit. And judges do not respect those opinions in
other circuits as highly as they do opinions from other
circuits.
Now, that is a fact. I have been there. I know that. It
just happens to be where I spent 15 years of my professional
career. So they are out of sync, and dealing with that is part
of our confirmation process and it is also the President's
responsibility.
I do think perhaps that is not all of it. I wonder maybe
there is some way we could develop a closer collegiality.
Certainly the judges we have heard testify from the other
circuits indicate that they don't want their circuits to grow,
that they would rather take on a heavier caseload than to
divide or add more appellate judges. They would rather dispose
of more cases per judge than add judges.
Let me ask you one question as a practicing lawyer, the
statement was made that the bar opposes the division. Has there
been any formal survey of that? And what kind of numbers were
returned?
Mr. Olson. First of all, let me say that there has been a
formal consideration of it in the Los Angeles County Bar
Association, of which I am a member, and it has taken a formal
position opposed to it, as has a large number of other bar
associations within the circuit. I cannot cite to them with
specificity.
With regard to the American----
Senator Sessions. To your knowledge, you are not aware of
any circuitwide survey?
Mr. Olson. Not a circuitwide survey, no.
With regard to the American Bar Association, let me make
plain that it has received, to my knowledge, the consideration
of those two committees that I have just cited, the litigation
section and the Standing Committee on Federal Court
Improvements. Both have taken strong stands against the
proposal that has been made. They have put before the House of
Delegates of the ABA, I am told, for a decision this August, a
resolution that would formally assert that position on behalf
of the entire ABA. That has not been voted on. Let me make that
clear. That at this point is in the form of a resolution.
And if I may comment on what the Senator just said a moment
ago about being out of step, I know the integrity with which
that concern is expressed by Senator Sessions, and I have
followed that point of view as expressed for many years.
Whether I disagree or agree is irrelevant. I do think, however,
that the Senator answered his own concern by saying that that
is not a function of size or efficiency or effectiveness, but a
function of who it is that is sitting on the court.
More collegiality between those who, in the Senator's view,
have it wrong isn't going to change anything. It seems to me
this is an issue to be taken up at the time of confirmation or
the time of appointment, and whether or not we are
appropriately served in that regard is a wholly separate
question than this very fundamental proposal that has been----
Senator Sessions. Well, there are a lot of factors there. I
think one of the arguments and concerns is that you have so
many three-judge panels, the likelihood of an odd panel coming
together that has a divergent view from the majority increases,
and there is less of a sense that we are bound together and
have an obligation to speak with one voice for the circuit,
perhaps that is a factor here. Would you deny that, disagree?
Mr. Olson. I would disagree, and I would, more importantly,
argue that the proposal that has been made would only
exacerbate the concern the Senator raises. Today, if there is
an aberrational panel decision, any single judge on the ninth
circuit has the right to propose an en banc reconsideration of
that decision. And I am told that with regularity there is hot
debate among the judges of the ninth circuit on whether to
receive a case en banc. But each single judge can raise that if
they think there has been an aberrational decision made. And
each single judge gets to vote on whether or not it goes en
banc.
Under the new proposal, that would not be the case. Only
for the en banc reviews in the divisions, only the resident
judges would vote, not the nonresident judges, and none of the
judges in the other divisions would vote. You would have less
of a participation than you have now, and it would be less
reflective of the entirety of the court, of the circuit.
So I think, to my sense, anyway, this would only exacerbate
rather than correct the concern that is expressed.
Senator Sessions. Well, you make some good observations on
that. I think it is a matter that ought to be studied. I think
the circumstances requiring splitting of a circuit have
occurred before, and we know how that works. This would be a
rather novel and unusual approach for sure, and I do believe we
should study it.
There does appear to be a political lack of will here. It
has been tried and debated, as I understand it, long before I
came here to divide this great circuit. So maybe it would be a
good thing now to get our next panel up and introduced. Thank
you, Mr. Olson, for sharing your insight and the effort you
have made to articulate these matters.
Mr. Olson. Thank you, Senator.
[The prepared statement of Mr. Olson follows:]
Prepared Statement of Ronald L. Olson \1\
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\1\ Ronald Olson is a partner in the Los Angeles-based law firm
Munger, Tolles & Olson LLP. A copy of his curriculum vitae is attached
hereto.
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introduction
Thank you for the opportunity to add my views to the thoughtful
debate regarding the workings of the Ninth Circuit, the findings and
recommendations of the White Commission, and the Ninth Circuit
Reorganization Act.
By way of introduction, I am a Los Angeles lawyer who has for
thirty-three years practiced before federal courts throughout the
United States. I regularly argue cases before the Ninth Circuit and
work with the judges to improve it. I believe the Ninth Circuit to be
among the most vital, effective, and innovative courts in which I have
practiced, and fear that the changes now proposed will take the Circuit
in exactly the wrong direction. I previously submitted prepared
testimony to the White Commission, and comments to the White
Commission's draft report, and am pleased that the Commission has
recognized the wisdom in retaining the Ninth Circuit as single federal
Circuit Court for the Western states. I appreciate the invitation to
testify again, this time before this Senate subcommittee, and offer the
following testimony in opposition to the Commission's recommendation
that the Court be reorganized into three semi-autonomous divisions.
1. The White Commission itself acknowledged that the ninth circuit is
functioning well and should not be split; therefore, there is
no basis to impose the new, complex divisional structure on the
well-functioning court
As a lawyer, I place the burden of persuasion on those who seek to
change the current structure and operation of the Circuit. Like the
states that comprise individual circuits, the boundaries of each
circuit are best explained by historical facts that may have less
relevance today. However, subsequent history and tradition and the
opportunity to share the collective experience of different circuit
sizes and management tools are powerful reasons against redrawing
circuit boundaries or meddling in their internal organization, absent a
compelling reason to do so.
I am not alone in placing the burden on those who ask Congress so
fundamentally to alter the internal structure and operations of the
Ninth Circuit. The Committee on Long Range Planning of the Judicial
Conference of the United States, for instance, has concluded:
Circuit restructuring should occur only if compelling
empirical evidence demonstrates adjudicative or administrative
dysfunction in a court so that it cannot continue to deliver
quality justice and coherent, consistent circuit law in the
face of an increasing caseload.
Proposed Long Range Plan for the Federal Courts (1995).
Here, the White Commission Report itself makes the case for keeping
things as they are:
Maintaining the court of appeals for the Ninth Circuit as
currently aligned respects the character of the West as a
distinct region. Having a single court interpret and apply
federal law in the western United States, particularly the
federal commercial and maritime laws that govern relations with
the other nations on the Pacific Rim, is a strength of the
circuit that should be maintained.
The Commission also concluded that splitting the Circuit is
unnecessary: ``We have reviewed all of the available objective data
routinely used in court administration to measure the performance and
efficacy of the federal appellate courts, but we cannot say that the
statistical criteria tip decisively in one direction or the other.'' In
other words, those seeking to change the current operation of the
Circuit, according to the Commission itself, have failed to meet their
burden to show that change is needed.
The Commission has correctly concluded that the Circuit is neither
inefficient nor dysfunctional. My experience as a litigator confirms
this. Accordingly, there is no reason to tinker with this well-
functioning Circuit.
2. The proposed divisional structure improperly concedes that Federal
court should be structured to secure regional representation
and to reflect regional interests
Despite the fact that the Commission finds no compelling data
justifying splitting. the Circuit, it nevertheless proposes a
``divisional structure,'' which, for all intents and purposes, does
just that. The proposal rests in part on the rather quaint notion that
the Circuit is ``just too big,'' and that balkanizing the Circuit into
divisions will foster ``collegiality'' of the judges, thereby
increasing the quality of decisionmaking.\2\ Suffice it to say that
this idea that Circuits have a natural size limit is unprincipled,
sentimental, and fails to face the inevitable consequences of ever
increasing caseloads and expanding federal jurisdiction. Like it or
not, I predict that the Circuits of the future will look more and more
like the Ninth Circuit of today, regardless of judges' and litigants'
nostalgia for the smaller courts of years past.\3\
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\2\ The Commission presumably relied on testimony such as that
submitted by the Honorable Edward Becker of the Third Circuit, whom I
admire greatly, and who testified:
[W]hen a circuit gets so large that an individual judge
cannot truly know the law of his or her circuit * * * the
circuit is too large and must be split. * * * I cannot
imagine a judge in a circuit as large as the Ninth, with
its staggering volume of opinions, being able to do what we
in the Third Circuit do. * * * If this assumption is
correct, the Ninth Circuit, according to my rough rule of
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thumb, needs to be split.
Letter from Hon. Edward R. Becker to the Honorables Byron R. White,
Gilbert S. Merrit, Pamela Ann Rymer, and William D. Browning, and N.
Lee Cooper, Esq. of January 26, 1998.
\3\ Hon. J. Clifford Wallace, former Chief Judge of the Ninth
Circuit, wisely acknowledged in testimony submitted to the Commission
that the life of a judge on a small court may well be more enjoyable
than it is on a large court. However, ``my preference to live in a
small town or to work in a smaller court is not relevant. Federal
courts do not exist to serve the preference of federal judges. * * *
The real question, then, is not what size of court judges prefer, but
which size will work best for the future.''
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More troubling, however, is the concession implicit in the proposed
``regional'' divisions that litigants from certain regions or states
are entitled to have their federal cases heard by local judges. It is
no secret that the most recent efforts to restructure the Circuit have
been launched by politicians who believe that Ninth Circuit judges have
issued opinions detrimental to local interests. One Senator, for
instance, has stated that the Ninth Circuit is ``dominated by
California judges and California judicial philosophy. * * * [T]he
interests of the Northwest cannot be fully appreciated or addressed
from a California perspective.'' Putting aside the threshold question
of, for example, what constitutes a ``California perspective,'' I am
terribly concerned that these regionalist notions have insinuated
themselves into the public debate about the working of the Circuit.
The authority we collectively confer on federal judges rests
largely upon the premise the judges are to be guided by the
Constitution and federal law, not by the varying winds of regional
interests. Indeed, the Constitution in its wisdom provides that Article
Three judges be appointed for life, in significant part to protect
against the pressures of local, state, or regional interests. The
federal circuit courts are superimposed upon the fifty states and
numerous territories in the face of their vastly differing economies,
histories, and cultures. Despite these local differences, however, we
expect that the Constitution, as well as the Securities and Exchange
Act, the Endangered Species Act, ERISA, RICO, and even the Federal
Rules of Civil Procedure and Federal Sentencing Guidelines, all mean
the same, and will be enforced with equal vigor, whether the judge
interpreting these authorities sits in Guam, Texas or Maine.
Any argument premised on the assumption that judges will not limit
the bases of their decisionmaking to the law and record before them,
but instead will decide cases with an eye to local interests, should
not be countenanced. I fear, however, that the proposed divisional
structure, sub silentio, acknowledges the validity of these arguments.
The majority of judges assigned to a division must be ``residents'' of
the territory encompassed by that division, and their decisions would
bind only the districts within that division. Similarly, membership in
the Circuit Division, which resolves conflicts among the divisions, is
to be determined by lot, with equal numbers of judges from each of the
Division.
In short, the proposal seems designed at every level to ensure
regional representation in decisionmaking affecting litigants from that
region. The result is not only cumbersome, it sets a sorry precedent,
and by its very structure encourages judges of the Circuit to look out
for their own when deciding issues of law. The judges of the federal
circuits, however, are not, and are not intended to be, representative
of their constituents in the same manner as are, for instance, members
of the Senate. There is no reason to concede (to the contrary, we are
bound to resist) any suggestion that litigants are entitled to be heard
by a federal judges haling from the same region. Because the proposed
divisional structure institutionalizes a norm--regionalism--that is
anathema to our system of federal courts, I oppose it.
3. The proposed divisional structure moves the court in the wrong
direction by adding unnecessary layers of review, precluding
circuit-wide review of published decisions, and encouraging
intra-circuit conflicts
Even if I were to assume for the sake of argument that the Ninth
Circuit had problems that needed fixing, I cannot think of a worse fix
than the one proposed by the White Commission. The divisional system
will exacerbate the very problems it seeks to remedy. In short, it
moves the Circuit in exactly the wrong direction.
For instance, in the face of a perception that the Ninth Circuit is
bad at preventing and resolving intracircuit conflicts, the divisional
system explicitly permits the courts in one division to ignore the
holdings of a sister division.
Once a regional division has spoken on a matter of law, the
trial courts over which it has jurisdiction will be bound by
that decision, regardless of decisions issued in other
divisions.
The Commission makes this proposal in the face of its own conclusion
that ``the circuit's court of appeals should continue to provide the
West a single body of decisional law''! The system, on its face,
institutionalizes complacency for, if not outright encourages, intra-
circuit conflict.
Nor does the Commission's proposed creation of the ``Circuit
Division,'' solve the problem. The Circuit Division would not be
empowered, either of its own accord or at the request of a litigant, to
review division decisions that are plain wrong, or that raise unusually
important questions. ``[I]ts only authority would be to resolve square
interdivisional conflicts,'' whatever those are, and even then, its
jurisdiction to resolve such conflicts is discretionary.
Nor can a judge in one division request an en banc hearing of an
opinion issued by a panel of another division. This aspect of the
structure would create a terrible loss. Currently, all judges of the
Circuit, including Senior judges, participate in what I am told are
vigorous, frank, and detailed debates as to whether a particular case
should be reheard en banc.\4\ The divisional structure would severely
limit participation in this crucial process of policing panel decisions
to maintain uniformity, and in the equally crucial process of providing
en banc consideration of matters of great importance.\5\
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\4\ Twenty-four of the associates at my law firm served as law
clerks to Ninth Circuit judges.
\5\ I have witnessed in my own practice the value of en banc review
in matters of great importance. I formerly represented the Republic of
the Philippines in an action against the Marcos family. On appeal,
after the three-judge panel issued its opinion, the case went en banc,
not because of any ``square conflict,'' but, I presume, simply because
the case raised important issues of law. I believe that Circuit judges
throughout the Circuit, and litigants, should retain this important
right to seek en banc review is such circumstances.
---------------------------------------------------------------------------
Moreover, the Circuit Division adds a new layer of review, which is
bound to delay the ultimate resolution of appeals. Not only will this
new layer inevitably increase the average time from docketing to
termination (one of the grounds on which ``efficiency'' is judged), it
also will add to the cost of prosecuting an appeal in the Ninth
Circuit. The Circuit Division will not ``resolve'' conflicts in a
vacuum. Rather, as is the case with most other legal processes,
litigants must pay their lawyers to act, to do additional research,
draft additional briefs, file additional copies of the record, and
request that the Circuit Division resolve the conflict. This is
expensive. Prosecuting an appeal already is a remarkably expensive
proposition for a great number of litigants who find themselves before
the Ninth Circuit--Social Security claimants, persons prosecuting
immigration appeals, criminal defendants, and even the typical small
business owner in federal court on a contract claim. The creation of
any additional hurdles necessarily limits access to justice for these
litigants, at least incrementally, as they face the stark reality of
the increasing cost of obtaining review. Absent a compelling reason to
add additional procedures, layers of review, and the concomitant costs,
I cannot support any proposal that does so.
Finally, the divisional approach divides the state of California
into separate adjudicative divisions. This is a singularly bad idea, as
recognized by, among others Senator Dianne Feinstein, former Governor
Pete Wilson, and current Governor Gray Davis. As former Governor Pete
Wilson has aptly observed, dividing the state will exacerbate problems
of forum shopping in any number of cases, including the numerous
challenges to state initiatives that often find their way into federal
court in my home state. And Governor Gray Davis has stated that the
proposed division of California is at odds with the state's fundamental
policy favoring integration and consistency between Northern and
Southern California. Not even the Commission can assert that splitting
the state will yield any benefits, only that it was the best division
it could come up with given the demographics of the West and population
of California. Again, this element of the proposed divisional structure
simply takes the Court in the wrong direction.
4. The ninth circuit has a long history of revitalizing itself and
improving the quality of justice it delivers; Congress should
permit it to continue to regulate itself without outside
interference
As the Commission itself recognizes, efforts to split the Circuit
date back as far 1891. Despite the long history of criticism, even the
Commission acknowledges that ``[t]here is no persuasive evidence that
the Ninth Circuit (or any other circuit, for that matter) is not
working effectively.'' The question, especially in light of the
century-old criticism that the Circuit is too big, is: how has the
Circuit done so well? The answer, I think, is that the Ninth Circuit is
at the forefront of innovation in terms of Court management. The Ninth
Circuit is a test case for the future, a sort of pilot program, and I
fear that mandating the restrictive divisional approach will truncate
creative management and innovation of which the Court has long shown
itself capable.
As I have testified previously, the Ninth Circuit can, and has,
served as a testing ground for numerous techniques in court management.
Applying the maxim that innovation follows need, we should allow the
Ninth Circuit, including its large, and tremendously knowledgeable and
professional clerk's office--to continue to operate without re-
definition, and to encourage it to share its experiences and
innovations with other circuit courts.
The Ninth Circuit clerk's office, with its staff of research
attorneys, is among the smartest and most advanced in the county. In
order to handle the Circuit's burgeoning caseload, the clerk's office
has developed a number of procedures aimed at preventing the very
parade of horribles the proponents of the divisional approach fear
(mistakenly) are already upon us. This phenomenon is not particularly
remarkable: when an institution increases in size, it often develops
management tools that increase efficiency and effectiveness. A few
examples of these administrative innovations should suffice.
The Ninth Circuit employs a staff of research attorneys who
evaluate appeals as soon as they have been docketed. They read the
briefs and assign the appeal a ``weight'' from one to ten, based on the
apparent complexity of the issues and the record. This process assists
the clerk's office in distributing roughly equal quantities of work to
the various three judge panels sitting for hearings in any given month.
The research attorneys also code the issues presented by a
particular appeal, and track the cases raising the issues through a
computerized tracking system. This allows the court to group appeals
raising the same or similar issues and sends those grouped appeals to
the same three judge panel. In this way, a single panel gains expertise
in the particular issue and sees it in a variety of factual contexts,
which can lead to better reasoned discussion of the implications of
deciding the issue one way or another. When the clerk's office is
unable to group cases with similar issues together, the office notifies
panels that a different panel is also deciding a case that raises the
same issue. This allows panels to communicate with one another so as to
avoid the possibility that separate panels might simultaneously, or
nearly simultaneously, decide the same issue differently.
The Ninth Circuit is also a leader among courts in adopting and
integrating advanced communication techniques.\6\ The judges' chambers,
for example, have long been connected to one another through e-mail and
other document sharing capabilities. The court even utilizes video
conferencing. I, for one, have participated in a video conference with
circuit executives. I was told video conferencing is used regularly
among judges and among judges and the clerk's office. Finally,
communication with the bar is also innovative and effective. Judges
throughout the Circuit regularly make themselves available for attorney
exchanges and education. As an example of innovative communication, the
court produced a video for practitioners that is designed to guide them
through the twists and turns of appellate procedure. This video, widely
distributed at low cost, reaches an audience far beyond the typical
educational program.
---------------------------------------------------------------------------
\6\ These communication techniques take some wind out of the sails
of those who presume that geographic breadth of the circuit prevents
meaningful and frequent exchange between judges.
---------------------------------------------------------------------------
Indeed, even today, the Court is engaged in an agressive self-
evaluation, the purpose of which is to study and make recommendations
relating to many of the same issues examined by the White Commission,
including the en banc process, monitoring of panel opinions, regional
considerations, and disposition times, among other issues. Senior Judge
David Thompson of San Diego is heading up this ten-member Evaluation
Committee, composed of district and circuit judges, and members of the
bar and the academy. The Committee is expected to submit its final
report within the next few months.
The purpose of my mentioning this Evaluation Committee is not to
suggest that Congress should delay action until it hears from that
committee. Rather, it is to emphasize that the Ninth Circuit has shown
itself time and time again to be adept at self-evaluation and self-
criticism, even while laboring under the shadow of Congressional
intervention. And, moreover, its efforts have borne fruit, yielding a
modem, efficient, innovative, and responsive court that is well
prepared to face the future.
conclusion
The Ninth Circuit works well and provides high quality justice to
all the citizens of the West. The White Commission has acknowledged as
much. To the extent that challenges remain, the Court has shown itself
more than capable of meeting them head on, as it always has. The
proposal to impose an unwieldy, untested, and unpopular divisional
structure takes the Court in exactly the wrong direction, and
exacerbates the very problems it purports to fix. I urge you to reject
the proposals set forth in the White Commission as they relate to the
Ninth Circuit, and to oppose The Federal Ninth Circuit Restructuring
Act of 1999.
______
Mr. Olson received his B.S. degree from Drake University in 1963,
his J.D. degree from the University of Michigan in 1966, and a Diploma
in Law from Oxford University, England, in 1967, at which time he was
the recipient of a Ford Foundation fellowship.
In 1967, Mr. Olson was an attorney for the Civil Rights Division of
the Department of Justice and in 1968 clerked for Chief Judge David L.
Bazelon, United States Court of Appeals for the D.C. Circuit. From 1968
to the present, he has practiced law with the Los Angeles law firm now
known as Munger, Tolles & Olson. Mr. Olson is a litigator who was
formerly Chairman of the Standing Committee on Federal Judiciary (1991-
92), Chairman of the Litigation Section (1981-82), and Chairman of the
Alternative Dispute Resolution Committee (1976-86) of the American Bar
Association, and was Vice President of the Board of Governors of the
State Bar of California (1986-87). He was Chairman of the Board of
Trustees of Claremont University Center and Graduate School from 1984-
94. Mr. Olson currently chairs the RAND Corporation Executive Committee
of its Board of Trustees and RAND's Institute for Civil Justice, as
well as the Board of Councilors for the USC Annenberg School for
Communication. He is a director of Berkshire Hathaway, Edison
International, California Institute of Technology, Pacific American
Income Shares, Western Asset Trust, Brennan Center for Justice, Jules
Stein Eye Institute, Skid Row Housing Trust and the World Resources
Institute. He is also a member of the Los Angeles Business Advisors and
the California Citizens Commission on Higher Education. Mr. Olson is a
member of the American Bar Association, the American College of Trial
Lawyers, and the American Law Institute.
Mr. Olson's field of specialization is commercial litigation,
including antitrust, securities, commercial contracts, and business
torts. Mr. Olson is a frequent speaker and panel member at law schools
and professional associations in the United States and abroad. He has
written for law publications and journals. He is both a leading
business trial lawyer and spokesman for alternative dispute resolution.
Among his representations are the following: lead counsel for
Merrill Lynch in Orange County bankruptcy; co-lead counsel for
Universal Studios in trial against Viacom/Paramount for the ownership
of USA Network; lead counsel for Shell Oil Company in CARB gas
antitrust case; for Salomon Inc. in connection with the Nasdaq
antitrust litigation (DOJ and class actions) and the 1991-92 criminal
investigation and governmental claims arising from its conduct of
treasury security auctions; for the Republic of the Philippines against
the Marcos family; for Alyeska and its oil company owners in the
criminal investigation and civil litigation arising from the Exxon
Valdez oil spill; and co-counsel for Southern California Edison Company
in connection with the restructuring of the California utility industry
and lead counsel for Edison in defense of a ``Texaco/Pennzoil'' claim
arising from its attempted takeover of San Diego Gas and Electric. Mr.
Olson also counsels individual executives and boards of directors in a
range of matters, including corporate governance. Mr. Olson provides
pro bono representation to various community organizations including
the Skid Row service providers.
Senator Sessions. Let's see. Our next panel would include
Chief Judge Procter Hug of the ninth circuit, and also members
of the circuit, Judge Pamela Ann Rymer, Judge Andrew Kleinfeld,
Judge Diarmuid O'Scannlain, and Judge Charles Wiggins. So if
you would step forward?
Judge Hug has been a judge on the ninth circuit since
1977--that is a good tenure--and he became chief judge in 1996.
Judge Rymer has been a judge on the Ninth Circuit Court of
Appeals since 1989, and in addition to her duties as judge on
the ninth circuit, she has served as a member of the Commission
whose report we are discussing today.
Judge Kleinfeld served as a district judge for the District
of Alaska from 1986 until 1991, when he was appointed to the
Circuit Court of Appeals.
Judge O'Scannlain sits on the ninth circuit in Portland,
OR, and has served on the ninth circuit since 1986.
Judge Wiggins was appointed to the ninth circuit in 1984.
He also served as a member of the Hruska Commission which
recommended splitting both the fifth and ninth circuits in
1973.
I would like to welcome all of you at this time, and, Judge
Hug--there you are--thank you very much for your attendance and
your leadership. I know you are carrying a heavy load in the
circuit. And thank you for your service to your country.
I am a little bit reluctant to start today. Maybe you would
rather wait until we get more Senators here, Senator Feinstein
and Senator Grassley, who chairs this committee. And they
better get back quickly, or I am going to miss my vote.
Judge O'Scannlain. Senator, may I just inquire?
Senator Sessions. Yes.
Judge O'Scannlain. We also have Judge William Browning from
Arizona, who I understand was actually invited to testify, and
I would hope that he could be part of this panel.
Senator Sessions. There is Senator Grassley. I would be
pleased to have him appear. Senator Grassley, the question is
Judge Browning, who also was originally asked, I believe, to
appear, has been able to attend. Would you have an objection--
--
Judge O'Scannlain. Judge William Browning of Arizona.
Senator Grassley [presiding]. No, it won't be a problem.
The only thing is 12:05 we are going to adjourn the meeting to
another time because I have to get back to Iowa. And if some
other members want to come and keep the committee going, that
is a possibility. But I will have to leave at 12:05.
Let's see. We will start out with you, Judge Hug.
Judge Hug. Yes.
Senator Grassley. So the individual can come.
STATEMENTS OF HON. PROCTER HUG, JR., CHIEF JUDGE, U.S. COURT OF
APPEALS FOR THE NINTH CIRCUIT; HON. PAMELA ANN RYMER, CIRCUIT
JUDGE, U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT, AND MEMBER,
COMMISSION ON STRUCTURAL ALTERNATIVES FOR THE FEDERAL COURTS OF
APPEALS; HON. ANDREW J. KLEINFELD, CIRCUIT JUDGE, U.S. COURT OF
APPEALS FOR THE NINTH CIRCUIT; HON. DIARMUID O'SCANNLAIN,
CIRCUIT JUDGE, U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT;
HON. CHARLES E. WIGGINS, SENIOR JUDGE, U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT; AND HON. WILLIAM BROWNING, JUDGE, U.S.
DISTRICT COURT FOR THE DISTRICT OF ARIZONA
STATEMENT OF HON. PROCTER HUG, JR.
Judge Hug. Thank you, Mr. Chairman and members of the
committee. I appreciate the opportunity to be here to discuss
the Final Report of the Commission on Structural Alternatives
for the Federal Courts and Senate bill 253, which implements
those suggestions.
My name is Procter Hug, and I am the chief judge of the
U.S. Courts for the Ninth Circuit. I have been a member of the
Ninth Circuit Court of Appeals for 21 years.
I think the Final Report the Commission rendered has made a
valuable contribution to the understanding of the Federal
appellate court system. The research placed the current
appellate court structure in historical perspective and
gathered important statistical information affecting the
courts. It also compiled a thorough profile of the method of
operations of each circuit court so that each of us in our own
circuit courts can benefit from those creative ideas.
The Commission developed several important conclusions that
have been reflected in its Final Report, some of which have
been commented on by other speakers. I think it is very
important that the first conclusion is that, ``There is no
persuasive evidence that the ninth circuit (or any other
circuit, for that matter) is not working effectively, or that
creating new circuits will improve the administration of
justice in any circuit or overall.''
``Accordingly,'' the Commission stated, ``we do not
recommend to Congress and the President that they consider
legislation to split the circuit.''
We consider that to be the most important conclusion of the
Commission.
Second, the Commission stated,
There is one principle that we regard as undebatable:
It is wrong to realign circuits * * * and to
restructure courts * * * because of particular judicial
decisions or particular judges. This rule must be
faithfully honored, for the independence of the
judiciary is of constitutional dimension and requires
no less.
Third, the statement by the Commission and the conclusion
that I think is also important is,
Maintaining the Court of Appeals for the Ninth
Circuit as currently aligned, respects the character of
the West as a distinct region. Having a single court
interpret and apply federal law in the western United
States, particularly the federal commercial and
maritime laws that govern relations with the other
nations on the Pacific Rim, is a strength of the
circuit that should be maintained.
The fourth conclusion:
Any realignment of circuits would deprive the west
coast of a mechanism for obtaining a consistent body of
federal appellate law, and of the practical advantages
of the ninth circuit administrative structure.
The Commission concluded that the ninth circuit should not
be split. That conclusion corresponds with the overwhelming
opinion of the judges and lawyers in the ninth circuit, as well
as the statements of others concerned with this issue who
submitted written statements or gave oral testimony before the
Commission. Twenty out of the 25 witnesses that testified in
Seattle at that hearing agreed that the ninth circuit was
operating effectively and were against splitting. Thirty-seven
out of the 38 persons who testified in San Francisco reached
the same conclusion. The past director of the Federal Judicial
Center, William Schwartzer, agreed. The chairman of the Long-
Range Planning Commission for the Federal Courts, Judge Otto
Skopil, agreed, and a great majority of the judges that spoke
did as well.
Having strongly opposed the splitting of the ninth circuit,
the Commission proceeded further to recommend legislation for a
revised method of operation for the Ninth Circuit Court of
Appeals through intracircuit adjudicative divisions that
amounts to a de facto split of the court of appeals. The
essential question then becomes whether the suggested revision
of the operation of the court of appeals accomplishes the
acknowledged goal of having a single court interpret and apply
Federal law in the nine Western States and the Island
Territories in an efficient and effective manner, better than
the present method of operation. In my opinion, it clearly does
not.
The position of the ninth circuit expressed to the
Commission is that it is working well and that a great majority
of the judges and lawyers in the ninth circuit are satisfied
with its current structure. This was confirmed by the survey of
the Commission, in which over two-thirds of the judges in the
ninth circuit expressed that opinion.
In January 1999, I prepared an ``Analysis of the Final
Commission Report,'' in which I expressed wholehearted
agreement with the Commission's major conclusion that the ninth
circuit should not be split, but serious disagreement with the
divisions recommended for the Ninth Circuit Court of Appeals. I
submitted this analysis to a meeting of our active and senior
judges on January 11, 1999, and of the 35 active and senior
judges voting, 25 voted to approve in principle that analysis,
4 judges voted to approve the Commission's recommendation of
the creation of divisions for the court of appeals, 4 judges
voted for a circuit split, and 2 judges did not vote on that
particular matter.
I am drawing my remarks today from that analysis, and I am
thus confident that I speak for the great majority of the
judges of our circuit court. I have attached a copy of that
analysis to my written statement, and it provides more detail
than I am able to discuss in this oral presentation. I also
provided a copy of that analysis to all of the Members of
Congress in a letter that I submitted some time ago.
In the draft report, the Commission recommended legislation
to implement this divisional approach not only for the ninth
circuit, but for the other circuits when the number of judges
on their courts of appeals exceeded 17 judges. I think it is
most significant that the chief judges of the first, second,
third, fourth, seventh, eighth, and the District of Columbia
circuits responded with a joint letter expressing strong
opposition of their circuit courts to any such divisional
restructuring for their circuits. They said, ``The whole
concept of intracircuit divisions, replete with two levels of
en banc review, has far more drawbacks than benefits.'' The
chief judge of the fifth circuit sent in a separate letter,
expressing the concern and reservations that that circuit had
about the divisional approach. This, no doubt, resulted in the
Commission's modifying its draft report and proposed
legislation to eliminate the mandatory requirement for the
creation of divisions in the other circuits. The requirement
became strictly optional for the other circuits, leaving the
ninth circuit conscripted as, in effect, the guinea pig to
implement this untested drastic change in what we believe is a
seriously flawed method. Senate bill 253 is essentially the
same as the revised proposed legislation.
There were many others who responded opposing the
divisional structure, and I have detailed those in the
analysis.
The Commission acknowledged that there is no persuasive
evidence that the ninth circuit is not working effectively. It
emphasized the importance of maintaining consistent circuit law
throughout the nine Western United States and the Island
Territories. Yet it proposed structural changes that will
impede that important objective, which neither the ninth
circuit nor any other circuit believes is wise or necessary. It
is thus very important to examine the reasons why this radical
change in structure was necessary or desirable.
The Commission acknowledges that the conclusion of a need
for a major structural change in the Ninth Circuit Court of
Appeals is not based upon any objective findings. The
subjecting findings only identified rather minor differences
expressed by the ninth circuit judges and lawyers, compared to
the judges and lawyers of other circuits.
Under the present structure of the court of appeals, we
have a viable mechanism that maintains the consistency of law
throughout the entire circuit. Panel decisions of all of the
judges are binding throughout the entire circuit. The limited
en banc procedure provides a mechanism whereby all judges
participate in the en banc process by the ``stop clock''
procedure, requests for en banc, memos circulated to other
judges, to the entire court, arguing for and against en banc
review, and by a vote of all of the active judges on whether to
take a case en banc. There is a full participation of all our
judges in resolving the circuit law.
Our circuit court has the advantage of the diversity and
background, experience, and geographical identity of a large
number of judges. The disadvantages of the Commission report
can be summarized as follows:
There is no participation of all judges circuitwide in
resolving the circuit law as at present. The only participation
is within the division.
Resident judges within a division that are assigned to
another division would not participate in panels within the
resident division for a 3-year period. For example, a judge
from Alaska would not be assigned, for example, to the Southern
Division, would not participate in any part of the en banc
decisions or panel decisions for the Northern unit that is
resident.
The proposed circuit division would be an additional level
of appeal before finality, involving additional expense and
delay.
The resolution of conflicts by the circuit division would
be by 13 judges, not representative of the full court or
proportionately representative of the divisions. For example,
the Northwest Division, which only has 22 percent of the
caseload and would have presumably 22 percent of the judges,
would have four judges on that court of appeals--or on that
circuit division; whereas, the Southern Division, which has 47
percent of the appellate caseload would also have four judges
on there, and they would all be serving for the 13 years--in
effect, a super-court of judges for 3-year terms with greater
power to determine the law of the circuit than any of the other
judges in the rest of the circuit.
There would be no participation of judges throughout the
circuit in the decisions of the court, as to whether it should
take a case en banc. That is only done by a party requesting
it.
The ninth circuit has always been willing to re-evaluate
itself, its performance, and to experiment with innovations
that would lead to greater efficiency and effectiveness. The
annual evaluation of the ninth circuit's long-range plan is
specifically designed to do just that.
Senator Feinstein is introducing a bill which we are
perfectly willing to work with. I think that the ideas that are
contained in that of having a situation in which the majority
of the court is always on the en banc panel, I think that would
work well, and I think the perception would be good; the same
way with having regional representation on every panel.
In conclusion, with the Commission having acknowledged
after extensive study that there is no persuasive evidence that
the ninth circuit is not working effectively, there is no
justification for mandating this drastic change in structure
that will impede, and not enhance, the continued development of
consistent circuit law throughout the nine Western States and
the Island Territories.
I thank you for the opportunity to appear before you.
[The prepared statement of Judge Hug follows:]
Prepared Statement of Procter Hug, Jr.
summary
The Commission on Structural Alternatives for the Federal Courts of
Appeals concluded that the Ninth Circuit should not be split. The great
majority of the judges and lawyers in the Ninth Circuit agree.
The Commission stated: ``There is no persuasive evidence that the
Ninth Circuit (or any other circuit, for that matter) is not working
effectively.'' It also stressed that maintaining a consistent body of
federal appellate law in the Western States and Pacific Rim is a
strength of the circuit that should be maintained.
Yet, having indicated that the Ninth Circuit is working effectively
and stressing the importance of continuing to maintain consistent law
throughout the entire circuit, the Commission proposed legislation that
would make a radical change in the structure of the Ninth Circuit Court
of Appeals. Senate Bill 253 essentially embodies that proposed
legislation. This structural change would undermine, rather than
enhance, the important goal stressed by the Commission of maintaining
consistent federal law throughout the Western States and Island
Territories composing the Ninth Circuit.
The proposed legislation would require a revised method of
operation for the Ninth Circuit Court of Appeals through three semi-
autonomous adjudicative divisions, with the State of California being
split between two divisions. There would be an additional court of 13
judges selected from the divisions to resolve only direct conflicts
between divisions. This structure has serious disadvantages.
Neither the panel decisions nor the en banc decisions of any
division would bind the other divisions. A circuit-wide en banc
hearing for any purpose other than resolving direct conflicts
would be abolished. The maintenance and development of
consistent circuit law would be seriously hampered.
The proposed Circuit Division would add an additional level
of appeal before finality, resulting in additional expense and
delay for litigants.
The proposal would eliminate the present participation of
all judges circuit-wide in resolving circuit law, and would
impose serious practical problems in randomly assigning judges
among the divisions for three-year terms.
The likelihood of inconsistent interpretations of federal
law would, exist throughout the circuit and would not be
adequately addressed by the proposed conflict resolution
mechanism of the Circuit Division. Because California would be
split between two divisions, there would be different
interpretations and enforcement of the law in California.
My view that the disadvantages far outweigh any advantages of the
proposed restructuring is shared by a great majority of the judges on
the Ninth Circuit Court of Appeals, the Ninth Circuit Judicial Council,
the Association of District Judges of the Ninth Circuit, and the United
States Department of Justice. The Chief Judges of eight other circuits
state that their courts oppose a divisional structure for their
circuits.
______
Mr. Chairman, Members of the Subcommittee: Thank you for the
opportunity to discuss with you the Final Report by the Commission on
Structural Alternatives for the Federal Courts of Appeals and Senate
Bill 253, The Ninth Circuit Reorganization Act. My name is Procter Hug,
and I am the Chief Judge of the United States Courts for the Ninth
Circuit. I have been a member of the Ninth Circuit Court of Appeals for
21 years.
The Commission was created in the wake of a bill to split the Ninth
Circuit into two circuits. Its mission was to study not only the Ninth
Circuit but the entire intermediate appellate court structure between
the trial courts and the Supreme Court. In undertaking its task, the
Commission was concerned with how the circuit courts of appeals were
operating, whether the Ninth Circuit or any circuit, should be split,
and formulating recommendations for other possible structural changes.
I think that the Final Report the Commission rendered has made a
valuable contribution to the understanding of the federal appellate
court system. The research placed the current appellate court structure
in historical perspective, and gathered important statistical
information affecting the courts. It also compiled a thorough profile
of the method of operation of each of the circuit courts of appeals, so
that each of our circuit courts can benefit from the creative ideas
from other circuits.
The Commission developed several important conclusions that have
been reflected in its Final Report.
There is no persuasive evidence that the Ninth Circuit (or
any other circuit, for that matter) is not working effectively,
or that creating new circuits will improve the administration
of justice in any circuit or overall. Furthermore, splitting
the circuit would impose substantial costs of administrative
disruption, not to mention the monetary costs of creating a new
circuit. Accordingly, we do not recommend to Congress and the
President that they consider legislation to split the circuit.
* * * * *
There is one principle that we regard as undebatable: It is
wrong to realign circuits (or not realign them) and to
restructure courts (or leave them alone) because of particular
judicial decisions or particular judges. This rule must be
faithfully honored, for the independence of the judiciary is of
constitutional dimension and requires no less.
* * * * *
Maintaining the Court of Appeals for the Ninth Circuit as
currently aligned, respects the character of the West as a
distinct region. Having a single court interpret and apply
federal law in the western United States, particularly the
federal commercial and maritime laws that govern relations with
the other nations on the Pacific Rim, is a strength of the
circuit that should be maintained.
* * * * *
Any realignment of circuits would deprive the west coast of a
mechanism for obtaining a consistent body of federal appellate
law, and of the practical advantages of the Ninth Circuit
administrative structure.
The Commission concluded that the Ninth Circuit not be split. That
conclusion corresponds with the overwhelming opinion of the judges and
lawyers in the Ninth Circuit, as well as statements of others concerned
with this issue who submitted written statements or gave oral testimony
before the Commission. Among those opposing the division of the Ninth
Circuit were the following:
20 out of the 25 persons testifying at the Seattle Hearing
of the Commission.
37 out of 38 of the persons testifying at the San Francisco
Hearing of the Commission.
The Governors of the States of Washington, Oregon,
California, and Nevada.
The American Bar Association.
The Federal Bar Association.
The United States Department of Justice and the United
States Attorneys within the Ninth Circuit.
All of the Public Defenders within the Ninth Circuit.
Respected scholars: Charles Alan Wright, Arthur Hellman,
Anthony Amsterdam, Erwin Chemerinsky, Judy Resnik, Jessie
Choper, and Margaret Johns.
The past Director of the Federal Judicial Center, Judge
William Schwartzer.
The chairman of Long-Range Planning for the U.S. Federal
Courts, Judge Otto Skopil.
A great majority of the judges and lawyers in the Ninth
Circuit.
Having strongly opposed splitting the Ninth Circuit, the Commission
proceeded further to recommend legislation for a revised method of
operation for the Ninth Circuit Court of Appeals through intra-circuit
adjudicative divisions that amounts to a defacto split of the court of
appeals. The essential question then becomes whether the suggested
revision of the operation of the court of appeals accomplishes the
acknowledged goal of having a single court interpret and apply federal
law in the nine Western United States and the Island Territories in an
efficient and effective manner, better than its present method of
operation. It clearly does not.
When a whole new concept of operation of the courts of appeals is
proposed, the burden should be upon those proposing the change to show
that a particular proposal will operate more efficiently, effectively,
and better advance the cause of justice than the time-tested procedures
that have been in operation for many years. ``Circuit restructuring
should occur only if compelling empirical evidence demonstrates
adjudicative or administrative dysfunction in a court so that it cannot
continue to deliver quality justice and coherent, consistent circuit
law in the face of increasing workload.'' Long Range Plan of the
Federal Courts (1995). That burden has not been carried.
The position of the Ninth Circuit expressed to the Commission is
that it is working well and that a great majority of the judges and
lawyers in the Ninth Circuit are satisfied with its current structure.
This was confirmed by the survey of the Commission, in which over two-
thirds of the judges in the Ninth Circuit expressed that opinion.
The Commission has proposed that the Ninth Circuit Court of Appeals
be divided into three semi-autonomous adjudicative divisions, with the
State of California being split into two separate divisions. Panel
decisions decided in one division would not be binding precedent in
either of the other divisions, and each division would have an
independent en banc procedure that would have no precedential effect in
the other two divisions. There would be an additional court of 13
judges selected from the divisions to resolve only direct conflicts
between the divisions. The likelihood of inconsistent interpretations
of federal law would exist throughout the circuit and would not be
adequately addressed by the proposed conflicts resolution mechanism.
Because California would be split into two divisions, there would also
be a substantial risk of different interpretations and enforcement of
the same state law in California.
In January of 1999, I prepared an Analysis of the Final Commission
Report, in which I expressed wholehearted agreement with the
Commission's major conclusion that the Ninth Circuit should not be
split, but serious disagreement with the divisions recommended for the
Ninth Circuit Court of Appeals. I submitted this Analysis to a meeting
of our active and, senior judges on January 11, 1999. Of the 35 active
and senior judges voting, 25 judges voted to approve the Analysis, 4
judges voted to approve the Commission's recommendation of the creation
of divisions for the court of appeals, 4 judges voted for a circuit
split, and 2 judges abstained.
I am drawing my remarks today from the Analysis, and I am thus
confident that I speak for the great majority of the judges of our
circuit court. I have attached a copy of that Analysis to my written
statement and it provides more detail than I am able to discuss in this
oral presentation. On March 31, 1999, I sent a letter to each member of
Congress, in which I enclosed a copy of the Analysis. With your
extremely busy schedules, you may or may not have had an opportunity to
review it. What I point out in the Analysis is that this is a major
change in the operation of the circuit court of appeals, it is not
justified by the findings of the Commission, and is a de facto split of
the Ninth Circuit Court of Appeals. It frustrates the very important
goal acknowledged by the Commission, to maintain a consistent body of
law throughout the nine Western United States and the Island
Territories.
In its draft report, the Commission recommended legislation to
implement this divisional approach not only for the Ninth Circuit, but
for the other circuits when the number of judges on their courts of
appeals exceeded 17 active judges. I think it was most significant that
the Chief Judges of the First, Second, Third, Fourth, Seventh, Eighth,
and DC Circuits responded with a joint letter expressing strong
opposition of their circuit courts to any such divisional
restructuring. They said, ``The whole concept of intra-circuit
divisions, replete with two levels of en banc review, has far more
drawbacks than benefits.'' The Chief Judge of the Fifth Circuit sent in
a separate letter, expressing the concern and reservations that circuit
has about the divisional approach. The Chief Judge of the Second
Circuit sent in an additional separate letter, emphasizing the strong
opposition of that court. Thus, all of the other circuits that
responded to the Commission expressed their opposition to the
divisional approach. This, no doubt, resulted in the Commission's
modifying its draft report and proposed legislation to eliminate the
mandatory requirement for the creation of divisions in the other
circuits. The requirement became strictly optional for the other
circuits, leaving the Ninth Circuit conscripted as the guinea pig to
implement this untested drastic change that we believe is seriously
flawed. Senate bill 253 is essentially the same as the revised proposed
legislation.
There were many others who responded opposing the divisional
structure, as I have detailed in the Analysis. Some of these were by:
The United States Department of Justice; Senator Dianne Feinstein;
Former California Governor Pete Wilson (present California Governor,
Gray Davis, recently announced a similar view) The Ninth Circuit Court
of Appeals; The Ninth Circuit Judicial Council; The Association of
District Judges of the Ninth Circuit; The Federal Bar Association; The
Sierra Club Legal Defense Fund; The Los Angeles County Bar Association;
The Chief Judges of the First, Second, Third, Fourth, Fifth, Seventh,
Eighth, and DC Circuits; The New York City Bar Association; The Federal
Bar Council's Committee on the Second Circuit Courts; and The Chicago
Council of Lawyers.
The response of the United States Department of Justice, which
participates in 40 percent of the litigation in the federal courts,
bears particular note. It responded to the Commission, vigorously
opposing the divisional restructuring of the Ninth Circuit or any
circuit. It stated, ``That proposal would have potentially adverse
repercussions for the administration of justice in the Ninth Circuit
and, ultimately, across all federal courts of appeals.''
The Commission acknowledged that there is no persuasive evidence
that the Ninth Circuit is not working effectively. It emphasized the
importance of maintaining consistent circuit law throughout the nine
Western United States and the Island Territories. Yet, it proposed
structural changes that will impede that important objective, which
neither the Ninth Circuit nor any other circuit wants to adopt. It is
thus very important to examine the reasons why this radical change in
structure was necessary or desirable for the Ninth Circuit.
The Commission stated that it had reviewed all of the available
objective data routinely used in court administration and found that
while there are differences among the courts of appeals, it is
impossible to attribute them to any single factor, such as size. In
considering the subjective data, the Commission noted that the district
judges of the Ninth Circuit do not find the law any more unclear than
the judges in other circuits. The Commission then noted that the
lawyers of the Ninth Circuit found ``somewhat'' more difficulty in
discerning circuit law and predicting outcomes of appeals than lawyers
elsewhere. Thus, the Commission acknowledges that the conclusion of a
need for a major structural change in the Ninth Circuit Court of
Appeals is not based upon any objective findings. The subjective
findings only identified rather minor differences expressed by the
Ninth Circuit judges and lawyers, compared to the judges and lawyers of
other circuits. This hardly justifies such a radical change.
It is not realistic to believe that consistent law can be
maintained in the Ninth Circuit under the divisional structure when
panel decisions are not binding throughout the circuit, and when there
are three separate en banc courts with no participation of judges
throughout the circuit in those decisions. The 13-judge Circuit
Division that resolves only direct conflicts between divisions cannot
maintain consistent circuit law. Under the present structure, panels
are bound to follow the precedent of other panels, and they try their
best to do so. Under the proposed system, there is no obligation to
follow the precedent of the panels of the other two-thirds of the
court. This is certain to develop greater inconsistency in panel
decisions. The law of the divisions will inevitably drift apart with
little hope of keeping the consistent circuit law that we now enjoy in
the Ninth Circuit or restoring it if the legislation is enacted and
found to be a serious mistake.
Under the present structure of the court of appeals, we have a
viable mechanism that maintains the consistency of law throughout the
entire circuit. Panel decisions of all of the judges are binding
throughout the entire circuit . The limited en banc procedure provides
a mechanism whereby all judges participate in the en banc process by
the ``stop clock'' procedure, requests for en banc, memos circulated to
the entire court arguing for and against en banc review, and by a vote
of all of the active judges on whether to take a case en banc. There is
full participation of all our judges in resolving circuit law.
When a case is taken en banc, the en banc court reviews the full
case for purposes of clarifying the circuit law, resolving conflicts,
or considering questions of exceptional importance to establish the law
of the circuit. There is no additional level of appeal, as there would
be with the divisional approach, and there is no litigation upon
whether an opinion reflects a direct conflict between divisions or
merely distinguishes cases involved, as there would be with the
divisional approach.
Our circuit court has the advantage of the diversity and
background, experience, and geographical identity of a large number of
judges that provide important insights into the applications and
development of the federal law throughout the nine Western United
States and Island Territories. The stated advantages asserted for the
divisional approach are heavily outweighed by the disadvantages.
The disadvantages may be summarized as follows:
There is no participation of all judges circuit-wide in
resolving the circuit law as at present. The only participation
is within the division.
Resident judges within a division that are assigned to
another division would not participate in panels within the
resident division for a three-year period and would, for that
period, have no say in the en banc consideration of panel
decisions within the division of their residence.
The proposed Circuit Division court would be an additional
level of appeal before finality, involving additional expense
and delay.
The resolution of conflicts by the Circuit Division court
would be by 13 judges, not representative of the full court or
proportionately representative of the divisions. The Circuit
Division would create a category of what, in effect, would be
Super Court Judges, for three-year terms with greater power in
determining the law of the circuit.
There would be no participation of judges throughout the
circuit in the decisions of the Circuit Division, as to whether
it should take a case or not take a case or let a panel
decision stand.
There are statutory problems lurking in the new procedure,
two of which I identify in the Analysis but others in an
untested procedure could well surface in the future.
The practical operation of the divisional approach becomes
administratively complex in the manner in which the judges are
designated to be assigned among divisions, and the manner in
which the Circuit Division is to operate, as I have shown in
the Analysis.
It is gratifying that the Commission recommended that the Ninth
Circuit not be split and recognized the importance of having a single
court interpret and apply federal law in the Western United States.
However, the evidence does not justify the recommended change to a
divisional structure of the Ninth Circuit Court of Appeals. The
disadvantages of such a structure far outweigh the claimed advantages
and do not justify disrupting a court that the great majority of judges
and lawyers within the circuit are convinced is operating efficiently
and effectively. The Ninth Circuit has always been willing to re-
evaluate itself, its performance, and to experiment with innovations
that would lead to greater efficiency and effectiveness. The annual
evaluation of the Ninth Circuit's long range plan is specifically
designed to do so. Concerns that have surfaced in the Final Report of
the Commission can be addressed with far less disruption than a whole
new divisional structure. At the present, they are being addressed by a
special Evaluation Committee that I appointed specifically for that
purpose.
The Committee, chaired by Senior Circuit Judge David Thompson, is
composed of Ninth Circuit judges from different regions of the circuit,
as well as a representative from the district, court bench, a prominent
scholar of the federal appellate courts, and an experienced appellate
practitioner. The Committee has met over the past several months on
numerous occasions and has made a special effort to meet with
representatives of the bench and bar throughout the Ninth Circuit in
order to get a wide spectrum of participation in the evaluation
process.
In conclusion, with the Commission acknowledged, after extensive
study, that there is no persuasive evidence that the Ninth Circuit is
not working effectively. There is no justification for mandating this
drastic change in structure that will impede, not enhance, the
continued development of consistent circuit law throughout the nine
Western United States and the Island Territories. The other, circuits
have all opposed the divisional structure and it has been made optional
for them. The Ninth Circuit should be treated the same as the other
circuits and should be given the same option.
______
Analysis of the Final Commission Report By Chief Judge Procter Hug, Jr.
The Commission on Structural Alternatives for the Federal Courts of
Appeals submitted its Final Report on December 18, 1998. I have had an
opportunity to carefully analyze the report and to discuss it with
judges and lawyers. I thought it would be helpful to give my evaluation
of the Final Report, as I did with the Draft Report.
summary
The basic question resolved by the Commission is whether the Ninth
Circuit should be split. The strong recommendation of the Commission is
that it should not be split. It stated:
Maintaining the court of appeals for the Ninth Circuit as
currently aligned respects the character of the West as a
distinct region. Having a single court interpret and apply
federal law in the western United States, particularly the
federal commercial and maritime laws that govern relations with
the other nations on the Pacific Rim, is a strength of the
circuit that should be maintained.
The Commission recommended a structural change in the Court of
Appeals. It proposed that the Ninth Circuit Court of Appeals be divided
into three semi-autonomous adjudicative divisions, with the State of
California being split into two separate divisions. Panel decisions
decided in one division would not be binding precedent in either of the
other divisions and each division would have an independent en banc
procedure that would have no precedential effect in the other two
divisions.
The question then becomes whether the structural changes, as
proposed by the Commission, better serve the prime objective of having
consistent law throughout the Ninth Circuit.
When a whole new concept of the operation of the Court of Appeals
is proposed, the burden should be upon those proposing the change to
show that a particular proposal will operate more efficiently,
effectively, and better advance the cause of justice than the time-
tested procedures that have been in operation for many years.
The Commission stated that it had reviewed all of the available
objective data routinely used in court administration to measure
performance and efficiency of the federal courts of appeals but could
not say that the statistical data tipped decisively in one direction or
the other. It noted that while there are differences among the Courts
of Appeals, it is impossible to attribute them to any single factor
such as size.
In considering the subjective data, the Commission noted that the
district judges of the Ninth Circuit do not find the law insufficiently
clear to give them guidance in their decisions any more often than
their counterparts in other circuits, but they more frequently report
inconsistencies between published and unpublished opinions. The
Commission then noted that the lawyers of the Ninth Circuit found
``somewhat'' more difficulty in discerning circuit law and predicting
outcomes of appeals than lawyers elsewhere, but they did report more
often a large or grave problem in doing so.
However, the Commission then stated ``[b]ut when all is said and
done, neither we nor, we believe, anyone else, can reduce consistency
and predictability to statistical analysis. These concepts are too
subtle, the decline in quality too incremental, and the effects of size
too difficult, to allow evaluation in a freeze-framed moment.''
The Commission acknowledges that the conclusion of a need for a
major structural change in the Ninth Circuit Court of Appeals is not
based upon any objective findings. The subjective findings are based
upon rather minor differences expressed by the Ninth Circuit judges and
lawyers, and the belief of the Commission that a smaller decisional
unit just works best. There were many responses to the Commission's
Draft Report in opposition to the divisional structure. Some of these
were by:
The United States Department of Justice; Senator Dianne Feinstein;
Governor Pete Wilson; The Ninth Circuit Court of Appeals; The Ninth
Circuit Judicial Council; The Association of District Judges of the
Ninth Circuit; The Federal Bar Association; The Sierra Club Legal
Defense Fund; The Los Angeles County Bar Association; The Chief Judges
of the First, Second, Third, Fourth, Fifth, Seventh, Eighth, and DC
Circuits; The New York City Bar Association; The Federal Bar Council's
Committee on the Second Circuit Courts; and The Chicago Council of
Lawyers.
Under the present structure of the Court of Appeals, we have a
viable mechanism that maintains the consistency of law throughout the
entire circuit. Panel decisions of all of the judges are binding
throughout the entire circuit. The limited en banc procedure provides a
mechanism whereby all judges participate in the en banc process by the
``stop clock'' procedure, requests for en banc, memos circulated to the
entire court arguing for and against en banc review, and by a vote of
all of the active judges on whether to take a case en banc.
When a case is taken en banc, the en banc court reviews the full
case for purposes of clarifying the circuit law, resolving conflicts,
or considering questions of exceptional importance to establish the law
of the circuit. There is no additional level of appeal, as there would
be with the divisional approach, and there is no litigation upon
whether an opinion reflects a direct conflict between divisions or
merely distinguishes cases involved, as there would be with the
divisional approach.
Our circuit court has the advantage of the diversity and
background, experience and geographical identity of a large number of
judges that provide important insights into the applications and
development of the federal law throughout the nine western United
States and Island Territories. It is especially important to note that
the judges of the nine other circuit courts of appeals who responded to
the Commission's draft opposed the divisional approach. The stated
advantages asserted for the divisional approach are heavily outweighed
by the disadvantages.
The disadvantages may be summarized as follows:
1. There is no participation of all judges circuit-wide in resolving
the circuit law as at present. The only participation is within the
division.
2. Resident judges within a division that are assigned to another
division would not participate in panels within the resident
division for a three-year period and would, for that period, have
no say in the en banc consideration of panel decisions within the
division of their residence.
3. The proposed Circuit Division court would be an additional level
of appeal before finality.
4. The resolution of conflicts by the Circuit Division court would be
by 13 judges, not representative of the full court or
proportionately representative of the divisions. The Circuit
Division would create a category of what, in effect, would be Super
Court Judges, for three-year terms with greater power in
determining the law of the circuit.
5. There would be no participation of judges throughout the circuit
in the decisions of the Circuit Division, as to whether it should
take a case or not take a case or let a panel decision stand.
6. There are statutory problems lurking in the new procedure, two of
which I identify but others in an untested procedure could well
surface in the future.
7. The practical operation of the divisional approach becomes
administratively complex in the manner in which the judges are
designated to be assigned among divisions, and the manner in which
the Circuit Division is to operate.
The Ninth Circuit has always been willing to re-evaluate itself,
its performance, and to experiment with innovations that would lead to
greater efficiency and effectiveness. The annual evaluation of the
Ninth Circuit's long range plan is specifically designed to do so.
Concerns that have surfaced in the Final Report of the Commission could
be addressed with far less disruption than a whole new divisional
structure. A great majority of the judges and lawyers within the Ninth
Circuit concluded that it is operating efficiently and effectively as a
large court and should continue doing so. The case has not been made
nor the burden of proof carried for a drastic change in the structure
of the Ninth Circuit Court of Appeals.
detailed analysis of the final report
Changes from the draft report
The Final Report retains basically the same recommendations as in
the Draft Report.
1. Submitting the strong recommendation that the Ninth Circuit should
not be split.
2. Proposing legislation that the Ninth Circuit Court of Appeals be
divided into adjudicative divisions, whose panel opinions and en
banc; opinions would not be binding throughout the circuit, with a
separate Circuit Division to resolve only conflicts between
decisions in the three adjudicative divisions.
3. Proposing legislation that would authorize (though no longer
require) other circuits to utilize the adjudicative divisional
approach once the number of judges in the Court of Appeals
increases beyond 15.
4. Proposing legislation to permit experiments with two-judge panels.
5. Proposing legislation that would permit experimentation with
district court appellate panels.
6. Urging Congress to refrain from changing the Bankruptcy Appellate
System until the Judicial Conference has had an adequate
opportunity to study it and propose any necessary improvements.
However, the specific recommended legislation concerning direct
appeals with utilization of the Bankruptcy Appellate Panels was
eliminated from the appendices.
There are some changes from the Draft Report to the Final Report.
1. The major change is that for circuits other than the Ninth
Circuit, the proposed legislation no longer mandates that the Court
of Appeals be divided into adjudicative divisions when the
complement of judges exceeds 17. Thus for other circuits, the
adjudicative divisional approach becomes entirely optional.
2. The composition of the Circuit Division and method of selection is
changed from the 7-judge court originally proposed, to a 13-judge
court, composed of the chief judge and 12 other judges in active
status chosen by lot in equal numbers from each regional division.
The 12 judges would serve non-renewable three-year terms.
3. The Final Report provides that each division would also include
some judges not residing within the division, assigned randomly for
specified terms of at least three years, instead of one year as
provided in the Draft Report.
4. The proposed statutory provision specifying the particular
composition of the Judicial Council of the Ninth Circuit was
eliminated, leaving that matter up to the discretion of the Ninth
Circuit, as it does with the other circuits.
5. The seven-year Sunset Provision was eliminated. Thus, the concept
of the divisional approach being an ``experiment'' with a
termination period is no longer the case.
commission report as it pertains to the ninth circuit
Major conclusion--no circuit split
The major conclusion of the Commission is that the Ninth Circuit
should not be split. The Commission made the following statements
supporting that conclusion.
There is no persuasive evidence that the Ninth Circuit (or any
other circuit, for that matter) is not working effectively, or that
creating new circuits will improve the administration of justice in any
circuit or overall. Furthermore, splitting the circuit would impose
substantial costs of administrative disruption, not to mention the
monetary costs of creating a new circuit. Accordingly, we do not
recommend to Congress and the President that they consider legislation
to split the circuit.
There is one principle that we regard as undebatable: It is wrong
to realign circuits (or not realign them) and to restructure courts (or
leave them alone) because of particular judicial decisions or
particular judges. This rule must be faithfully honored, for the
independence of the judiciary is of constitutional dimension and
requires no less.
* * * * *
Maintaining the court of appeals for the Ninth Circuit as
currently aligned respects the character of the West as a
distinct region. Having a single court interpret and apply
federal law in the western United States, particularly the
federal commercial and maritime laws that govern relations with
the other nations on the Pacific Rim, is a strength of the
circuit that should be maintained.
* * * * *
Any realignment of circuits would deprive the west coast of a
mechanism for obtaining a consistent body of federal appellate
law, and of the practical advantages of the Ninth Circuit
administrative structure.
The conclusion that the Ninth Circuit should not be split
corresponds with the overwhelming opinion of the judges and lawyers in
the Ninth Circuit, as well as statements of others concerned with this
issue who submitted written statements or gave oral testimony before
the Commission. Among those opposing the division of the Ninth Circuit
were the following:
20 out of the 25 persons testifying at the Seattle Hearing
of the Commission.
37 out of 38 of the persons testifying at the San Francisco
Hearing of the Commission.
The Governors of the States of Washington, Oregon,
California, and Nevada.
The American Bar Association.
The Federal Bar Association.
The United States Department of Justice and the U.S.
Attorneys within the Ninth Circuit.
All of the Public Defenders within the Ninth Circuit.
Respected scholars: Charles Alan Wright, Arthur Hellman,
Anthony Amsterdam, Erwin Chemerinsky, Judy Resnik, Jessie
Choper, and Margaret Johns.
The past Director of the Federal Judicial Center, Judge
William Schwartzer.
The chairman of Long-Range Planning for the U.S. Federal
Courts, Judge Otto Skopil.
A great majority of the judges and lawyers in the Ninth
Circuit.
Adjudicative Divisions for the Ninth Circuit Court of Appeals
Having strongly opposed the division of the Ninth Circuit, the
Commission proceeds further to recommend a revised method of operation
for the Ninth Circuit Court of Appeals through intra-circuit
adjudicative divisions. The essential question then becomes whether the
suggested revision of the operation of the Court of Appeals
accomplishes the acknowledged goal of having a single court interpret
and apply the federal law in the nine western United States and the
Island Territories in an efficient and effective manner better than its
present method of operation.
When a whole new concept of the operation of courts of appeals is
proposed, the burden should be upon those proposing the change to show
that a particular proposal will operate more efficiently, effectively,
and better advance the cause of justice than the time-tested procedures
that have been in operation for many years.
The position of the Ninth Circuit expressed to the Commission is
that it is working well and that a great majority of the judges and
lawyers in the Ninth Circuit are opposed to a split. This was confirmed
by the survey of the Commission in which over two-thirds of the judges
in the Ninth Circuit expressed that opinion.
The Commission has proposed that the Ninth Circuit Court of Appeals
be divided into three semi-autonomous adjudicative divisions, with the
State of California being split into two separate divisions. Panel
decisions decided in one division would not be binding precedent in
either of the other divisions, and each division would have an
independent en banc procedure that would have no precedential effect in
the other two divisions. The Commission, in its Final Report, stated
that this is essential to its conception of the operation of the
divisions. Comments recommending changes to this aspect of the proposal
were rejected as antithetical to the proposed divisional structure.
Findings supporting the divisional structure
It is important to assess the arguments the Commission believed
required a change in the operation of the Ninth Circuit Court of
Appeals. The Commission noted that the arguments had both objective and
subjective components. With regard to the objective component, the
Final Report states:
We have reviewed all of the available objective data
routinely used in court administration to measure the
performance and efficiency of the federal appellate courts, but
we cannot say that the statistical criteria tip decisively in
one direction or the other. While there are differences among
the courts of appeals, differences in judicial vacancy rates,
caseload mix, and operating procedures make it impossible to
attribute them to any single factor such as size.
The Final Report then considered the subjective opinions of the
district judges and lawyers in the Ninth Circuit. With regard to the
district judges, the Final Report notes that the district judges in the
Ninth Circuit do not find the law insufficiently clear to give them
guidance in their decisions anymore often than their counterparts in
other circuits, but they more frequently report that difficulties stem
from inconsistencies between published and unpublished opinions.
With regard to the lawyers in the Ninth Circuit, the Final Report
indicates that Ninth Circuit lawyers found somewhat more difficulty
discerning circuit law and predicting outcomes of appeals than lawyers
elsewhere and more often than others reported a large or grave problem
in doing so. However, the Commission stated, ``[b]ut when all is said
and done, neither we nor, we believe, anyone else, can reduce
consistency and predictability to statistical analysis. These concepts
are too subtle, the decline in quality too incremental, and the effects
of size too difficult to isolate, to allow evaluation in a freeze-
framed moment.''
The reaction of the lawyers would be a concern that the Ninth
Circuit would wish to address to determine the source of any problem or
whether there really is a problem and to consider reasonable steps that
can be taken to remedy the problem if it is serious. However, the fact
that there is just somewhat more difficulty than in other circuits does
not seem to justify a major change in the structure of the Ninth
Circuit Court of Appeals.
Thus, it would appear that the conclusion of a need for the major
structural change in the Ninth Circuit Court of Appeals is not based
upon any objective findings. The subjective findings are based on
rather minor differences expressed by the Ninth Circuit judges and
lawyers, and the belief of the Commission that a smaller decisional
unit just works best.
Responses in opposition to divisional structure
There were many responses to the Commission in opposition to this
divisional structure, both as the idea pertained to the Ninth Circuit
and as it pertained to other circuits in the future. Some of these
responses were as follows:
The United States Department of Justice submitted its
response, noting that it approached its perspective from that
of a litigant that participated in over 40 percent of the cases
heard in the federal courts of appeals. In opposing the
recommendation for the creation of intra-circuit divisions, the
Justice Department stated, ``we agree with the draft report's
recommendation that the Ninth Circuit should not be split at
this time, and we concur generally in its view that `[t]here is
no persuasive evidence that the Ninth Circuit (or any other
circuit, for that matter) is not working effectively, or that
creating new circuits will improve the administration of
justice in any circuit or overall.' In our view, the lack of
evidence supporting circuit splits also counsels against what
we view as the principal recommendation contained in the draft
report--the creation of divisions for the Ninth and other large
circuits. That proposal would have potentially adverse
repercussions for the administration of justice in the Ninth
Circuit and ultimately across all federal courts of appeals.''
Senator Dianne Feinstein wrote: ``Since your report was
released on October 7, I have talked with federal judges,
members of the Bar, and legal scholars in California to discuss
the recommendations of the Commission. The overriding consensus
among judicial and legal leaders is that it would be disastrous
if California were split into Northern and Southern Divisions.
Concerns expressed to me about the proposal to divide
California focus on the following issues:
The Middle Division (Northern California) and the Southern
Division (Southern California) would not be bound
precedentially by each other's decisions. Lawyers would engage
in ``forum shopping'' within the same State for favorable
rulings. California corporations subject to federal
jurisdiction could be subject to varying interpretations of the
same federal and state laws. This could compel businesses to
build headquarters in other States where there is no conflict
within the federal court system. The lack of uniformity and
certainty in the law could create chaos in our state. Imagine
if two California divisions disagreed on the constitutionality
of any state-wide initiative or law. This could do
extraordinary damage to Californians' faith in the integrity
and fairness of the judicial system. Another layer of judicial
review within the Ninth Circuit would have enormous costs and
enlarge the federal bureaucracy.''
Governor Pete Wilson, then Governor of the State of
California, responded that ``the proposal to divide the Ninth
Circuit Court of Appeals into three divisions-which would split
California--would be counterproductive and not in the best
interests of the people of California.'' He noted that the
divisional arrangement proposed by the Commission would not
only undermine the objective of having a single court interpret
and apply the law in the western United States but would also
raise new problems. He then listed five specific problems.
The Ninth Circuit Court of Appeals, the Ninth Circuit
Judicial Council, and the Association of District Judges of the
Ninth Circuit all voiced opposition to the divisional approach.
The Federal Bar Association pointed out that although there
are regional issues ``the much larger portion of appellate
issues and caseload are not so regionally unique.'' They
expressed concern that the regional advantage might come at too
high a price--``lack of inter-division stare decisis and of
meaningful en banc review.''
The Sierra Club Legal Defense Fund calls the proposed
divisional structure ``a solution in search of a problem with
little evidence to support the need for such changes.'' They
cite the survey in the Commission Report, which showed that
over two-thirds of the circuit judges and the district judges
do not favor circuit reconfiguration.
The Los Angeles County Bar Association stated, ``As a
representative of many private and public consumers of judicial
services in the Ninth Circuit, we * * * register our
fundamental disagreement with the proposed restructuring of the
Ninth Circuit into divisions. We believe this so-called
`divisional arrangement' will present many, if not all, of the
difficulties that the Commission acknowledges would accompany a
split of the Circuit. Indeed, as we explain below, we see the
proposed divisional structure as a de facto split of the
Circuit that would, in effect, split California. Yet, the
notion of splitting California is the very option that the
Draft Report calls `undesirable.' Draft Report at 46. We
believe this same concern applies with equal force to the
proposed division of any state.'' They noted new problems that
the divisional arrangement would create: inconvenience and
cost; inconsistent interpretation of California state law;
forum shopping and delay tactics; and increased confusion for
litigants.
The Chief Judges of the First, Second, Third, Fourth,
Seventh, Eighth, and DC Circuits wrote a joint response to the
divisional approach, stating that ``The whole concept of intra-
circuit divisions, replete with its two levels of en banc
review, has far more drawbacks than benefits.''
Judge Winter, Chief Judge of the Second Circuit, wrote a
separate letter on behalf of his court ``to indicate a strong
and unanimous opposition to the Commission's recommendation of
mandatory divisions in courts of appeals with authorized
judgeships over a certain number.'' He listed several reasons.
``First because such divisions have never been tried, we have
no experience with them. The present organization of the
regional courts of appeals is hardly working so badly that
mandatory resort to a very different and untested form of
organization is called for.'' He then stated it would increase
forum shopping and require more judges and concluded ``Finally,
and most importantly, the major premise of the recommendation
for mandatory divisions appears to be that appellate courts
with 18 judges or more will inevitably lead to an unacceptably
incoherent case law. We do not agree with that major premise.
Moreover, we believe that the proposal for mandatory divisions
will lead either to more incoherence in case law rather than
less or to intolerable collateral consequences.''
Judge Politz, the Chief Judge of the Fifth Circuit, wrote
saying that the judges on his court are very concerned and
voiced considerable reservations about the proposal for
mandatory divisions for circuits with 18 or more active judges.
Judge Edith Jones of that court expressed her opposition more
colorfully, in that she believes this to be ``a dagger pointed
at the heart of the Fifth Circuit, with our currently
authorized 17 judgeships.''
The New York City Bar Association opposes the recommendation
that the federal courts of appeals are required to split
themselves into divisions. They recognize that such division is
``very nearly the functional equivalent of splitting it into
separate circuits.'' They conclude that this should only be
done in extreme circumstances.
The Federal Bar Council's Committee on the Second Circuit
Courts opposes divisions and argues that this will cause
greater disharmony in circuit law and an additional burden
caused by another layer of review.
The Chicago Council of Lawyers opposes divisional
organization of the Court of Appeals. ``[T]his is another bad
solution to a `not proven' problem.'' They state that the basis
for the Commission's recommendation is that according to an
unpublished survey, lawyers and district court judges in the
Ninth Circuit are ``somewhat'' more likely ``to have trouble
discerning circuit law, and that the court is too large for
`collegiality' to work effectively.'' The Council does not
concede that either of these are genuine concerns. It does
point out, however, that the divisional approach will ``if
anything increase uncertainty and hinder collegiality.''
Comparison of circuit divisions as opposed to the current operation of
the circuit court
The essential question is whether the proposed divisional approach
is so superior to the current method of operation as to justify
changing the basic structure of the Ninth Circuit Court of Appeals.
Present operation of the court
Panel decisions are binding throughout the circuit and other
panels are obligated to follow that precedent unless it is
overruled en banc. The circuit has developed a sophisticated
issue coding procedure and all panels are notified when the
same issue is before two or more panels. The first panel to
have the issue submitted to it has priority to resolve the
issue. However, there is frequently contact between panels
having the same issue for consideration of another panel's
view.
There is no empirical evidence that the conflict between
panels of the Ninth Circuit is any greater than any other
circuit.
A limited en banc process operates effectively and involves
the entire court.
Any circuit judge, including senior judges, can call for a
``stop clock,'' which is usually done when a judge wants the
panel to consider an objection to a part of the decision.
Any judge, including senior judges, can call for en banc and
write memos supporting the en banc call or comment on the en
banc call of other judges. Generally, there are many insightful
memos.
All active judges vote on whether to take a case en banc. The
limited en banc process is representative of the court as a
whole because all of the circuit judges can submit memoranda
for or against the en banc call, and all active circuit judges
vote on whether to take the case en banc. If the case is not
taken en banc, this is a decision of the full court that the
panel opinion should stand.
The limited en banc decisions are fully accepted by the court
as being the final decision of the court as a whole. A majority
of the active judges can have a limited en banc decision
reviewed by the full court. Since 1980, there have been only
five such requests, and the majority of the active judges have
never voted to consider a limited en banc decision before a
full court en banc. From 1980 to 1997, there have been 173
cases heard by the limited en banc court. 33 percent of the
decisions were unanimous and 75 percent of the decisions were
rendered by a majority vote of 8-to-3 or greater. This is
strong indication that a full court en banc would not have
reached a different decision.
In the calendar year 1996, there were 25 calls for en banc
that were voted on by the full court and 12 of the cases were
taken en banc. In calendar year 1997, there were 39 calls for
en banc that were voted on by the full court and 19 of the
cases were taken en banc. In calendar year 1998, there were 45
calls for en banc that were voted on by the full court and 16
of the cases were taken en banc. The full-court participation
should be judged not only upon those cases that were taken en
banc, but by those cases that were called for en banc, upon
which the full court voted.
There could well be changes in the limited en banc process
that would further improve its operation, as suggested by the
Justice Department and others. But, these are minor adjustments
that could be made and still retain the function of resolving
circuit-wide precedent both as to conflicts and as to questions
of exceptional importance.
Divisional operation
Panel decisions in a division would have a binding
precedential effect only in that division and no binding
precedential effect in either of the other two divisions.
The Circuit Division only resolves conflicts between panels
in different divisions. Unless there is a conflict with a
decision from another division, the law of each division is not
reviewed within the circuit, which leaves questions of
exceptional importance unreviewed in the Ninth Circuit.
A very significant difference is the lack of participation
in the development of circuit-wide law by all judges. A judge
in one division cannot call for en banc in another division,
but more important, does not participate in the development of
circuit law through the stop clock or en banc procedure, or by
circulating memos in support of or opposed to en banc
consideration.
The makeup of the Circuit Division is not proportionately
representative of the court as a whole. The Circuit Division is
composed of the chief judge and 4 judges from each division.
The Northern Division has only 22 percent of the caseload and
would be expected to have 22 percent of the judges, whereas the
Southern Division has 47 percent of the caseload and would be
expected to have 47 percent of the judges, yet the two
divisions would be equally represented on the Circuit Division
court.
There is no input from any of the judges in any of the
divisions to seek to have a case heard by the Circuit Division.
The statute specifies that the application is to be made by a
party to the case. Furthermore, the Circuit Division has
discretion whether to take a case or not, regardless of what a
majority of the judges of the circuit would consider to be a
conflict.
The Circuit Division presents an additional level of appeal
for litigants before they achieve finality.
relative advantages of the two structures
The present structure
There is a circuit-wide mechanism that maintains the
consistency of law throughout the circuit and is not dependent
upon there merely being a conflict between divisions of the
court.
There is circuit-wide participation by the judges in the
development of the circuit law. The panel decisions of all the
judges are binding throughout the entire circuit. All of the
judges participate in the en banc process for the entire
circuit by the stop clock procedure, requests for en banc,
memos circulated to the entire court arguing for and against an
en banc review, and by a vote of all of the active judges on
whether to take a case en banc.
When a case is taken en banc, the en banc court reviews the
full case for the purposes of clarifying the circuit law,
resolving any conflicts, or considering questions of
exceptional importance to establish the law of the circuit.
There is no additional level of appeal as there would be
with the divisional approach.
There is no litigation on whether an opinion reflects a
direct conflict between divisions or merely distinguishes the
cases involved, as would be the case with the proposed Circuit
Division.
The circuit court has the advantage of diversity in the
background, experience, and geographical identity of a large
number of judges, which provide important insights into the
application and development of federal law throughout the nine
western United States and Island Territories.
The divisional structure
The asserted advantages for the divisional approach, as detailed in
the Final Report, are as follows:
Smaller decisional units will promote consistency and
predictability because the judges in the smaller units will
have a better opportunity to monitor the decisions of all the
panels within that division.
The judges within a division would sit together more
frequently, contributing to greater collegiality among those
judges, and more predictability as to the results of appeals.
Judges in a division would become much more of a ``known
bench,'' fostering judicial accountability and public
confidence.
Divisional en banc procedure would arguably operate more
effectively.
Each judge would arguably be relieved of having to keep
current with the decisional output of the entire Ninth Circuit
Court of Appeals. However, when decisions of other divisions
are to be ``accorded substantial weight,'' there would still
remain some responsibility on the part of the judges to keep
current with the decisions of the other divisions.
The question is whether these asserted advantages really exist and,
if so, are out-weighed by the disadvantages of the divisional
operation.
Disadvantages of divisional operation
There is no participation of all judges circuit-wide in
resolving circuit law, as at present. The only participation is
within the division.
Resident judges within a division that are assigned to
another division, as contemplated in the Final Report, would,
for that three-year period, have no say in the en banc
consideration of panel decisions within the division of their
residence. For example, if a circuit judge who resides in
Alaska is randomly assigned for three years to the Southern
Division, he would have no say in the en banc process of the
Northern Division.
The resolution of conflict by the Circuit Division would be
by judges, not representative of the full court or even
proportionately representative of the divisions.
The Circuit Division would create a category of what, in
effect, would be Super Circuit Court Judges with three-year
terms, to determine conflicts in circuit law without the
participation of any other judges in the circuit.
There would be no participation of judges throughout the
circuit in the decisions of the Circuit Division. In fact, the
Circuit Division procedure is only initiated by a party, not a
judge, and the Circuit Division can, by a vote of those Super
Judges, elect not to consider a case.
There are statutory problems lurking in the new procedure,
which we may not realize. I can identify two.
There is a problem under the statute for the Circuit
Division to resolve conflicts unless there are two
contemporaneous conflicting decisions. If a case in the
Northern Division conflicts with a case decided in the Middle
Division two years prior, the Circuit Division can only affirm,
reverse, or modify the Northern Division case. It cannot modify
the Middle Division case. The statute does not provide for the
Circuit Division decision to become the law of the circuit. It
only affects the decision of the Northern Division.
The Final Report states that existing circuit law will be in
effect until overruled by a division. However, the statute does
not say so. If this is not the case, it would create real
problems of determining circuit law. Assuming, however, that
existing law is intended to remain in effect, as the Final
Report states, and the statute is so amended, this still
creates a significant problem. If a division overrules an
existing precedent, this would not be binding circuit-wide
unless there is a case in another division that is in conflict
and can be modified. The existing precedent would remain in
effect in the other divisions.
The practicality of how the divisional structure would work
The Commission stated:
By constituting divisions with both resident and nonresident
judges, the divisional structure respects and heightens the
regional character deemed a desirable feature of the federal
intermediate appellate system, without losing the benefits of
diversity inherent in a court drawn from a larger area. The
divisional structure draws on the circuit's full complement of
judges while restoring a sense of connection between the court
and the regions within the circuit by assuring that a majority
of the judges in each division come from the geographic area
each division serves.
The Commission also indicated that the divisions should be composed
so as to equalize the perjudge caseload, with each division having a
maximum of 11 judges and a minimum of 7. As I will demonstrate, an
equal division of the caseload will dictate there being 6 judges in the
Northern Division, 9 in the Middle Division, and 13 in the Southern
Division.
The caseload for the Ninth Circuit Court of Appeals for the fiscal
year that ended September 30, 1998, was 9,070. The appeals originating
from each of the divisions is as follows:
Percent
Northern Division 1,988 22
Middle Division 2,831 31
Southern Division 4,251 47
Total: 9,070 100
The average caseload for the 28 judges authorized for the Ninth
Circuit Court of Appeals would be: 9,070 divided by 28=324 appeals
perjudge. The number of judges to be fairly allocated to each Division
would be:
Northern Division 1,988 divided by 324=6
Middle Division 2,831 divided by 324=9
Southern Division 4,251 divided by 324=13
Total: 281
\1\ If the Northern Division were allocated an additional judge to
come from either the Middle Division or the Southern Division, it would
mean a substantial increase in caseload for the judges of that
division. If the additional judge were to come from the Middle
Division, the caseload per judge in the Middle Division would be 353
cases per judge or 1,061 per panel, as opposed to 284 cases per judge
or 852 per panel in the Northern Division. Since the judges sit in
panels of 3, this would mean that a judge in the Northern Division
would have 209 fewer cases per year than a judge in the Middle
Division. A nearly identical result would be obtained if the additional
judge were to be allocated from the Southern Division. Thus, a fair
allocation of the caseload would be as shown with the Northern Division
having 6 judges.
Following the formulation provided by the Commission Report, that
the majority of the judges be residents of the division, with other
division judges being assigned to that division, the result would be as
shown on the following chart:
----------------------------------------------------------------------------------------------------------------
Present Judges To be To Be
Authorized Allocated Majority of Assigned Assigned To
Division Judgeships by Allocated From Other Other in
in Division Caseloads Judges Divisions Divisions
----------------------------------------------------------------------------------------------------------------
Northern....................................... 9 6 4 2 5
Middle......................................... 7 9 5 4 2
Southern....................................... 12 13 7 6 5
----------------------------------------------------------------------------------------------------------------
Thus, for example, in the Northern Division, there would be better
than a 50 percent chance that a resident judge would be assigned to
another division for three years. During that time, the assigned judge
would take no part in the panel decisions of the division in which the
judge resides, and the judge could take no part in the en banc court in
the judge's division. Furthermore, the judge is not expected to keep up
on the decisions in the judge's resident division. The same is
essentially true for the other divisions, with a somewhat lesser chance
of being assigned to another division.
The designation of the presiding judge of each division presents an
interesting scenario. Under the statute, the age and time limitations
are the same for a presiding judge as for a chief judge, then it goes
by seniority, provided that only judges resident in and assigned to the
division are eligible. The process would operate as follows:
The presiding judge of the Northern Division would be Judge
O'Scannlain, unless, of course, he was one of the five judges randomly
assigned to another division. In that case, it would fall to the next
judge in seniority that was not assigned to another division. If an
assigned judge returns, and is senior and otherwise eligible, I presume
that the returning judge would replace the presiding judge.
In the Middle Division, Judge Willie Fletcher would be the
presiding judge, unless, of course, he is assigned to another division.
In that event, one of the new judges, yet to be appointed and
confirmed, would take the position. (Judges Browning, Hug, and Brunetti
would be ineligible).
In the Southern Division, Judge Schroeder would be the presiding
judge, unless, of course, she is assigned to another division, in which
case the position would go to the next eligible judge in seniority that
was not assigned to another division.
All this is further complicated in the first three years by the
fact that the initial terms of assignment out of division are staggered
one-year, two-year, and three-year terms.
The composition of the Circuit Division that resolves circuit
conflicts also presents some interesting questions. The 13-judge court
is composed of the chief judge and 4 active judges chosen by lot from
each division. The Northern Division, which has less than 22 percent of
the caseload, with 6 judges allocated, would have representation on the
Circuit Division court equal to the Southern Division, with 47 percent
the caseload and 13 judges allocated. The judges drawn from a division
need not be residents of the division, but under the statute, can be
one of the assigned judges.
The point is that the Circuit Division court is much less
representative of the full court then our present limited en banc
court. The Circuit Division is skewed by non-proportional divisional
representation. Also, with three-year terms it may be many years before
a judge would serve on that court. Our present limited en banc court is
drawn at random from the full court. If a judge has not been drawn to
be on the en banc court for three successive times, he is automatically
placed on the en banc court. Thus, a judge is guaranteed to be on the
limited en banc court at least every fourth time the court is
constituted.
conclusion
The work of the Commission has been valuable in placing in
historical prospective the development of the Federal Appellate System,
and conducting hearings and surveys, and in obtaining written comments
from a wide spectrum of those concerned with the future of the Federal
Appellate System. Many of the recommendations will be valuable in
informing future developments.
It is gratifying that the Commission recommended that the Ninth
Circuit not be split and recognized the importance of having a single
court interpret and apply federal law in the western United States.
However, the evidence does not justify the recommended change to a
divisional structure of the Ninth Circuit Court of Appeals. The
disadvantages of such a structure far outweigh the claimed advantages
and do not justify disrupting a court that the great majority of judges
and lawyers within the circuit are convinced is operating efficiently
and effectively. The Ninth Circuit has always been willing to re-
evaluate itself, its performance, and to experiment with innovations
that would lead to greater efficiency and effectiveness. The annual
evaluation of the Ninth Circuit's long range plan is specifically
designed to do so. Concerns that have surfaced in the Final Report of
the Commission can be addressed with far less disruption than a whole
new divisional structure.
Senator Grassley. Thank you, Mr. Chief Judge.
Now, Judge Rymer.
STATEMENT OF HON. PAMELA ANN RYMER
Judge Rymer. Thank you very much, Chairman Grassley,
members of the subcommittee, Senator Feinstein. I am Pam Rymer,
and I very much appreciate the opportunity of testifying. But
in view of Senator Sessions' introduction of me as a member of
the Ninth Circuit Court of Appeals, I think I should make it
very clear to you that I am here representing and speaking in
behalf of the Commission on Structural Alternatives for the
Federal Court of Appeals. Our recommendations with respect to
the ninth circuit, are, of course, reflected in S. 253.
Justice White, who chaired the Commission, of course,
submitted a written statement to you. But he also asked me to
convey directly to you his strong conviction that this
legislation must be enacted.
As you know, the Congress created the Commission in great
measure at the urging of the ninth circuit to make an
independent study of structural alternatives for the Federal
Courts of Appeal, which we did, as instructed, with particular
reference to the ninth circuit.
The Commission conducted an extensive study and concluded
two things that are of equal importance: The circuit, which is
an administrative entity with no adjudicative functions,
``ain't broke,'' and it should not be fixed.
But equally important, the Court of Appeals for the Ninth
Circuit is broke and should be fixed, but cannot be fixed
without structural change. The reason is the Court of Appeals
is too large to function well as a single decisionmaking unit,
yet the caseload will likely continue to grow, and with that,
the need for even more judges to handle it. In the opinion of
two-thirds of the Federal circuit judges throughout the
country, an appellate court stops acting like an appellate
court should act if it has more than 11 to 17 judges.
The Ninth Circuit's Court of Appeals has 28 authorized and
19 senior judges with another five requested. Unlike any other
appellate court in the Nation, its judges do not sit together
as a full court en banc to develop and maintain a coherent and
consistent body of law. Instead, that critical function is
consigned to a limited en banc court, which is randomly
constituted on a case-by-case basis. Neither do its judges sit
with each other regularly enough on panels to get a true
understanding of their colleagues' jurisprudence or to polish
off the rough edges, like any good partnership or marriage.
And the court's output is too large to read, let alone for
each judge personally to keep abreast of, think about, digest
or influence. Inevitably, over time, there is a toll on
coherence and consistency, predictability and accountability.
For this reason, a majority of the justices of the U.S.
Supreme Court unequivocally say that it is time for change.
They review the work of all appellate courts in the country.
And as you can see from their letters to the Commission, each
of the five justices to comment on the ninth circuit thinks
that the Ninth Circuit's Court of Appeals is too big to
function well. The Commission unanimously agreed.
It is important. The problem with the Ninth Circuit's Court
of Appeals has nothing to do with good will or good
administration. No amount of either, and the court has both
good will and very good administration, no amount of either can
make it possible for 30, 40, or 50 or more judges to decide
cases together. It simply cannot be done, and that is the
problem.
The problem is not that the court does not work. If the
problem were that the court does not work, then administration,
and technology and ideas for operational improvement might make
a difference, but it is not. Nor is the problem reversal rate.
That is not a problem that the Commission identified or that
the Commission believes should weigh into the consideration of
structural alternatives one or another. We made that very clear
in the report and in the language that Chief Judge Hug just
quoted.
The problem with the court of appeals is that it cannot
work because there are too many judges for the court to be a
court. Therefore, to position the court of appeals so that it
can function well, requires restructuring to downsize the
decisionmaking units. The divisional structure that the
Commission recommends will reduce adjudicative units to
manageable proportions, each with 7 to 11 judges, a doable
caseload and a rational area of responsibility.
In turn, divisional judges can sit together as a full bench
when they need to. That will make the division a true and
traditional en banc court that can correct panel errors and can
develop and maintain a coherent and consistent body of law.
Because divisional judges will serve with each other more
frequently on panels and will participate in crafting
proportionately more of the opinions that speak for the
division, they can keep abreast of the output and the views of
their colleagues.
But in addition to size, there are two other values that
are extremely important and should not be ignored: One is a
regional connection because circuits, in the main, have
regional roots, and the other is a Federal perspective because
it is Federal law, not regional law, that a Federal court must
apply. The divisional structure takes account of enhances both
values.
On the one hand, a majority of the judges on each division
will reside in a district served by that division, and on the
other hand, judges from elsewhere in the circuit will be
assigned to different divisions for a term to provide judge
power where needed and to cross-pollinate the divisions with
diversity. In this way, the Federal appellate court in the
ninth circuit will be less remote to those whose lives and
fortunes depend on its decisions, yet still be a court that is
capable of maintaining uniformity, where uniformity itself is a
substantial interest to be served.
Of course, the divisions may diverge in how they interpret
Federal law over time. But--and this is very important--mostly
this will not matter because lawyers and district judges in
each division will only need to worry about the law of that
division; unlike today, when even subtle differences between
panels throughout the circuit does matter because district
courts are bound to follow and, thus, to try to figure out the
law of the entire circuit.
However, there may well be issues where itself is the
compelling interest. And in that circumstance, in that limited
circumstance only, the circuit division can resolve a
substantial and square conflict. Even so, the circuit division
will not be a group of super judges. Indeed, circuit division
judges will be far less super than limited en banc judges are
today. For unlike limited en banc judges, the circuit division
will have no power to rehear panel or divisional decisions to
correct the result or to resolve issues of exceptional
importance. These are true en banc functions that the
Commission believes are too significant to be left to chance,
as they are now, but should, instead, be entrusted only to
divisions that sit as a full bench or to the U.S. Supreme
Court. Nor will the circuit division be an extra level of
appeal. That is expensive and cumbersome.
There are three possible levels of review now: Panel
rehearing, limited en banc rehearing and full court rehearing.
And there will be three possible levels of review under the
divisional structure: Panel rehearing, divisional en banc
rehearing and circuit division review, if required to resolve
squarely conflicting divisional decisions.
As a practical matter, this will seldom happen because only
10 percent of the cases reheard in the last 10 years have been
deemed en banc worthy on account of conflict. There should be
even less conflict under the divisional structure because the
division creating the conflict will have to create it,
advisedly and squarely. In any event, essentially no extra work
will be involved, since the issue and the conflict will have
been fully briefed and already the subject of two fully
reasoned, albeit squarely conflicting, divisional decisions.
In my mind, the only really tough call has to do with what
to do about California. No solution is perfect, given how much
California contributes to caseload. Personally, having been a
lawyer in Los Angeles for nearly 20 years and a district judge
in Los Angeles for 6 more years, I see no problem at all with
putting California into different divisions.
As Justice John Paul Stevens explains in his letter, which
I attached to my written statement and quoted on page 18, and
which I urge you to read carefully, as Justice Stevens
explains,
To do so creates no more potential for inconsistency
or forum shopping than now exists. For under the
California state system, decisions of one Court of
Appeal do not bind others. And under the Federal
system, there can always be different decisions by
different district judges.
So people who live and work throughout the State of
California already face and already deal with inconsistent
determinations of both State and Federal law. And under the
structural arrangement, the circuit division will be there if a
square conflict, in fact, occurs.
Having said that, if, for other reasons, it seems
preferable to postpone the inevitable, the Commission sees no
magic to the particular divisional arrangement that the
Commission recommended. California could be a division by
itself, but the downside is that from day one, if it has enough
judges to handle the caseload, it would start off being very
close to the limit of not functioning effectively as an
appellate tribunal.
Therefore, to me, it makes the most sense to do now what
will be best for the future, and that is to pass the bill in
its present form. As the Chief Justice of the United States has
told you, this structure will address head on most of the
significant concerns raised about the court of appeals and
would do so with minimal to no disruption in the circuit's
administrative structure.
Senator Grassley, thank you for your indulgence. I very
much appreciate your consideration of the White Commission's
proposals. We urge your favorable action on S. 253.
[The prepared statement of Judge Rymer follows:]
Prepared Statement of Pamela Ann Rymer
executive summary
The White Commission was created by Congress to recommend
structural alternatives for the federal courts of appeal, with
particular reference to the Ninth Circuit.
Neither better case management, nor good administration, nor more
judges can avoid the need for alternatives.
The reason is: Beyond a range of 11-17 judges, an appellate court
is too big to function well because it can no longer sit together as a
full court to rehear cases en banc; read and keep up with the court's
output; sit with each other regularly; take other steps (such as pre-
filing circulation of opinions) to assure the coherent, consistent, and
predictable development of the law; and hold each other accountable for
decisions rendered in the name of the court.
At 28 active and 19 senior judges (with 5 more requested), the
Ninth Circuit's Court of Appeals has too many judges to function well.
But instead of splitting the circuit--which is only an administrative
entity with no adjudicative responsibilities and that ``ain't
broke,''--fix the court of appeals, which is an adjudicative body, that
is.
Because of its size, the Ninth Circuit's Court of Appeals is the
only court in the country that does not sit together as a full court to
develop and maintain a coherent and consistent body of law. Instead, it
delegates en banc functions to a limited en banc court of less than
half of its authorized judgeships (11) that is randomly constituted on
a case-by-case basis. Its members do not sit regularly with each other
on panels. Also because of its size, the court's output is too great
for all judges to read all of the court's decisions. Inevitably there
is a toll on coherence and consistency, predictability and
accountability.
A majority of the Supreme Court and one-third of the judges on the
Ninth Circuit's Court of Appeals believe these realities are serious
enough to warrant change.
The divisional concept responds to the principal concerns about the
``Ninth Circuit'' by producing a judicial unit that is small enough to
function well yet also provides a mechanism for maintaining uniform law
on issues where consistency throughout the west is important. It also
respects the regional roots of the circuit system by assuring that a
majority of the judges in each division reside in a district served by
that division, but it retains an appropriate federalizing focus through
assignment of judges from elsewhere in the circuit, a common set of
rules and procedures, and the Circuit Division which may resolve
squarely conflicting decisions on issues where uniformity matters to
the circuit.
The divisional structure prescribed in S. 253 is sensible and
workable.
Asserted ``disadvantages'' are not difficulties but strengths.
A circuit-wide en banc process is not necessary as the divisions
will sit as a full bench to decide issues of exceptional importance and
to maintain coherent and consistent law in the division. Divisional
decisions should not bind other divisions because that would put the
court of appeals back to square one--a condition that ultimately cannot
work.
Replacing the circuit-wide limited en banc with a divisional full
court en banc will increase--not decrease--judicial participation and
accountability.
The Circuit Division does not add a cumbersome new level of review,
as there are no more levels than are presently available and both the
parties' and the Circuit Division's work can largely be done on the
existing record. Nor is the Circuit Division a collection of ``Super
Circuit Court Judges,'' since its power (to resolve square conflicts
only) is considerably less than a limited en banc court's, which may
take a case in order to reconsider and then resolve cases of
exceptional importance, cases that pose inter-circuit conflicts, and
cases that create an intra-circuit conflict.
Once up and running, the divisional structure should make it easier
to organize calendars as assignments will be more stable, and it should
not be more complicated to support or staff as the divisions will
continue to be administered centrally.
The problem of putting parts of California into different divisions
is ``seriously exaggerated''; inconsistency and forum shopping
opportunities exist already and will not be exacerbated by a divisional
structure. That said, there is no magic to the particular divisional
arrangement the Commission thinks is preferable, except that it will
work now and for the foreseeable future. California could be a division
by itself, but a ``California'' division with an adequate number of
judges to handle the caseload would immediately be too large to
function well.
As the Chief Justice of the United States has said, the divisional
proposal for the Ninth Circuit Court of Appeals ``addresses head-on
most of the significant concerns raised about that court and would do
so with minimal to no disruption in the circuit's administrative
structure.''
S. 253 should be enacted.
______
I appreciate the opportunity of testifying in support of the
recommendations of the Commission on Structural Alternatives for the
Federal Courts of Appeals which, with respect to the Ninth Circuit, are
reflected in S. 253, the ``Ninth Circuit Reorganization Act,'' that
provides for restructuring the Court of Appeals for the Ninth Circuit
into adjudicative divisions. I was privileged to serve on the
Commission chaired by retired Supreme Court Justice Byron R. White, and
to work with N. Lee Cooper, the immediate past President of the
American Bar Association; Hon. Gilbert S. Merritt, former Chief Judge
of the Sixth Circuit and Chair of the Executive Committee of the
Judicial Conference of the United States; and Hon. William D. Browning,
who was Chief Judge of the District of Arizona as well as a member of
the Judicial Conference of the United States and the Judicial Council
of the Ninth Circuit.\1\
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\1\ While I am testifying as a member of the White Commission, I am
also a United States Circuit Judge for the Ninth Circuit and was a
district judge for the Central District of California. I currently
serve on the Executive Committee of the Court of Appeals and am
Administrative Unit Judge for the Southern Unit as well as a member of
the Judicial Council for the Ninth Circuit. I have previously been a
member of the Executive Committee of the Ninth Circuit Judicial
Conference and was its Chair.
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In the wake of decades of concern about the size of the Ninth
Circuit and a rider to the Appropriations Bill in 1997 that would have
split the circuit,\2\ the Commission was established to study
structural alternatives for the federal courts of appeals--with
particular reference to the Ninth Circuit. Although the Ninth Circuit
was a special focus of the Commission's work, its charge was broader
and our recommendations with reference to the Ninth Circuit grew out of
the study we undertook of the federal appellate system as a whole, its
present condition and future capacity.
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\2\ The rider, passed by the Senate, would have split the Circuit
by establishing a new Twelfth Circuit of Alaska, Arizona, Hawaii,
Idaho, Montana, Oregon, Washington, Guam and the Northern Mariana
Islands, leaving California and Nevada in the ``old'' Ninth.
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The most significant fact that emerged is the growth in caseload
that federal courts across the country have experienced in recent
years. Appellate courts have been disproportionately affected because
the number of circuit judges has not kept pace with the growth. To an
extent, caseload pressures are exacerbated by unfilled vacancies, but
the problem is more systemic than that.
Better case management is a band-aid that helps alleviate, but does
not cure, the problem. Appellate courts (including, in particular, the
Ninth Circuit's) have responded to increased demand by adding staff
support, tracking cases differently depending upon their difficulty,
providing ADR, borrowing judges, and taking advantage of technology to
coordinate consideration of related issues. At the same time, fewer
appeals are orally argued and fewer result in fully reasoned, published
dispositions. With all that has been accomplished, however, most courts
appear close to the limit of their ability to manage the caseload more
effectively and efficiently--yet still render decisions that are, and
are perceived to be, fairly and fully considered by Article III judges.
Curtailing jurisdiction could also relieve caseload pressure.
Indeed, all members of the Commission believe that restoring and
retaining a more appropriate balance of federal and state jurisdiction
is critical to enabling the federal courts to perform their core
constitutional functions in the future. That said, we cannot
realistically count on changes in jurisdiction to solve the caseload
problem.
Another palliative is to increase the number of judges, but the
problem with this solution is that at some point an appellate court
becomes too large to function effectively as a single judicial
decision-making unit. Unlike judges on a district court, appellate
judges must work together to develop the law of the court's
jurisdiction. Two-thirds of the circuit judges throughout the country
(including one-third of my colleagues on the Court of Appeals for the
Ninth Circuit) believe that the maximum number of judges for an
appellate court to function well lies somewhere between eleven and
seventeen. Beyond this range there are too many judges:
To sit together as a full court en banc;
To read the court's output;
To sit with each other regularly;
To take steps such as pre-filing circulation of proposed
opinions to assure coherence and consistency, predictability
and stability; and
To hold each judge accountable for decisions that are
rendered in the name of the court.
Historically, when the number of circuit judges needed to deal with
a circuit's increasing caseload has gone beyond a tolerable number, the
circuit has been split and two new circuits have been created, each
with an acceptable number of judges to handle the caseload of the newly
aligned circuit (at least for a while). This happened with the ``old''
Fifth and Eighth Circuits earlier in the century. Inevitably until now,
splitting the circuit has been seen as the way to solve the conundrum
of the Ninth Circuit, thought by many to be too large in terms of
judges, caseload, and population.
But there are downsides--and limits--to circuit splitting. For one
thing, to make more, smaller circuits tends to Balkanize federal law
and adversely to affect the federalizing function of a federal court of
appeals. For another, everyone to look at the question has agreed that
no regional circuit should have fewer than three states. This is so for
reasons both of policy and practicality: a federal appellate court
should be more than a single state court since it declares federal law
that speaks beyond state boundaries; as such, its judges should come
from, and be appointed by and with the consent of senators who are
concerned about the interests of, more than one or two states. In
addition, the only forum where inter-circuit conflict can be resolved
is the United States Supreme Court. This makes splitting a single large
state (California, for example) between two different circuits
especially undesirable. Finally, there are obvious costs, both to the
fiscal and legal order, in creating an entirely new, essentially
duplicative, apparatus.
Thus the question Congress posed to the Commission: Are there
structural alternatives for the federal courts of appeals, in
particular the Court of Appeals for the Ninth Circuit? The answer is
yes. Instead of splitting a circuit that ``ain't broke,'' fix the
appellate court that is.
A court of appeals is different from the circuit, and the
difference is critical to the White Commission's analysis. Even though
an appellate judge is a ``circuit'' judge and the court of appeals is
commonly called the ``circuit'' court, the circuit is not the court of
appeals or vice versa. A circuit is an administrative entity that is
the governance mechanism for all courts and judges within the
geographic area it covers--district courts, bankruptcy courts, and
magistrate judges as well as the court of appeals. A circuit has no
adjudicative role; adjudication is entirely a court function.
Therefore, to the extent there are perceived problems with a court of
appeals on account of the fact that it has grown too large or would be
too large if an adequate number of judges were appointed to handle the
caseload, the court of appeals can be restructured without the circuit
being split to achieve it.
In the case of the Ninth Circuit, no one seriously questions how
the circuit performs its administrative functions. The circuit's size
allows for flexibility in assignment, economies of scale, and a common
body of law for the Pacific Rim and the western part of the United
States--all of which are positive values. But many circuit judges,
lawyers who practice within the circuit, and a majority of justices on
the United States Supreme Court question how the court of appeals
performs its adjudicative functions.\3\ It is significantly larger than
any other collegial court in this country,\4\ and there are serious
concerns about creeping inconsistency, lack of predictability, and the
absence of review of decisions by all judges on the court.
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\3\ Letters written by the Chief Justice and by Justices Stevens,
O'Connor, Scalia, Kennedy and Breyer to the Commission are available on
the Commission's web site but are attached for convenience as Exhibit A
to this statement. Survey results are summarized in the Commission's
Working Papers.
\4\ ``Collegial'' in this context does not mean friendly or
sociable or enjoying one another's company. Nor does it connote that
judges get along personally or agree on the law. Rather, a
``collegial'' court is one that must work together, over time, to
develop a consistent, coherent, and predictable body of law for the
jurisdiction.
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Alone among the circuits, the Ninth Circuit's Court of Appeals does
not sit together en banc, as a full court, to develop and maintain a
coherent and consistent body of law. By statute, federal appellate
courts may go en banc for three purposes: to decide issues of
exceptional importance, to resolve intra-circuit conflict, and to avoid
inter-circuit conflict. Instead of a full court en banc, the Ninth
Circuit's appellate court has a ``limited en banc.'' The limited en
banc court is constituted on a case-by-case basis, consisting of the
Chief Judge and ten judges who are randomly drawn for the particular
case. Whatever the limited en banc court decides is the law of the
circuit, unless a majority of the full court votes for a rehearing by
the full court--a possibility that exists in theory but has never
happened in practice. In addition to limiting full court review of
panel decisions to eleven judges, only 57 percent of the Ninth
Circuit's appellate judges read all or most of the opinions of the
court. This is a far lower percentage than in other circuits with
smaller courts.
I believe a smaller court that can sit together regularly in
panels, that can convene as a full bench to correct panel error and to
maintain a body of coherent and consistent law, and that can monitor
all of its output, is better for the administration of justice than a
bigger court that cannot. The benefits of a smaller tribunal can be
obtained without splitting the circuit, but it will take structural
change to make it happen. S. 253 appropriately requires the Court of
Appeals for the Ninth Circuit to be restructured into adjudicative
divisions, as the White Commission recommends.
The proposed arrangement creates a Northern Division for the
Districts of Alaska, Idaho, Montana, Oregon, and Eastern and Western
Washington; a Middle Division for the Districts of Northern and Eastern
California, Guam, Hawaii, Nevada, and the Northern Mariana Islands; and
a Southern Division for the Districts of Arizona and Central and
Southern California. Each division will consist of seven to eleven
judges,\5\ a majority of whom are resident within the region served by
the division. Judges can be drawn at random from outside the division
to provide judge-power as needed, and to cross-pollinate the divisions
with judges from around the circuit.\6\ Thus, each division will have a
regional connection without losing a federal perspective. At the same
time, each division is small enough for every judge to read every
decision and for the division to sit comfortably together as a full
bench en banc, thereby authoritatively declaring the law (and
correcting errors) for districts within the division. Because this
might eventually lead to divergence among divisions, the Commission
recommends (and S. 253 provides for) a Circuit Division to maintain
circuit-wide uniformity on issues where consistency is important to the
circuit but on which the divisions have taken squarely conflicting
positions.\7\ In this respect the Circuit Division has discretion only
to break a ``tie'' in the interest of consistency. The Circuit Division
has no discretion to rehear issues of exceptional importance or to
avoid inter-circuit conflict; these functions repose solely in the
divisions, sitting en banc, or in the United States Supreme Court where
certiorari would be available (as it is now) from panel decisions, from
divisional en banc; decisions, and from Circuit Division decisions.
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\5\ You may wish to consider whether a cap of 13 is preferable
given the size of the caseload and its distribution within the circuit.
\6\ Judges drawn for out-of-division service would not move to that
division; they would simply travel to that division's place of holding
court, as circuit judges do now when they are assigned to an argument
calendar that convenes at a location where they do not live.
\7\ The Circuit Division would be composed of the Chief Judge and
six to twelve other judges drawn equally but randomly from each
division. They would serve on the Circuit Division for a term of three
years as well as their own division.
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I believe this structure responds to the principal concerns
expressed about the ``Ninth Circuit.'' It reduces the size of the
judicial decision-making unit, and replaces the circuit-wide limited en
banc--which does not work like a true en banc works--with a full
division en banc in which all division judges have a voice and a vote.
With these changes, each judge will no longer be ``charged'' with the
output of the whole court, but can concentrate on the output of the
division. All circuit judges can again be expected to read all
decisions that speak for them. In this way, inconsistency and lack of
predictability will be less likely and coherent development of the law
more likely.
In addition, the divisional structure accomplishes three other
objectives that the Commission believes are worthwhile. First, it
preserves flexibility for the future. Unlike circuits, divisions and
their composition can change up, down or sideways as changes in
caseload require. Second, the divisional structure produces a judicial
unit of suitable size yet provides a mechanism for maintaining uniform
law on issues where consistency throughout the west is important.
Finally, it makes the federal appellate court in the Ninth Circuit less
remote to those whose lives and fortunes depend on its decisions. To
some extent tension between the regional roots of circuit organization
and the federalizing function of its court of appeals is inevitable,
but the structure proscribed in S. 253 goes a long way toward
reconciling the two.
The divisional structure is sensible and workable. For sure, it has
not been tried before in the form proposed and there is understandable
reluctance on the part of bench and bar alike to experiment with any
structural alternative.\8\ After all, we were brought up on stare
decisis. However, the important thing is what furthers the
administration of justice in the long run. The Commission's is not a
perfect solution. Nor can there be one, with a state as large as
California as part of the mix. However, it is a viable solution that is
preferable to splitting the circuit or to letting the court of appeals
grow to 40, 50, 60 or more judges. No one suggested during the course
of our study how that many judges can decide cases as a court, for
panels speak with authority for the court as a whole only so long as
the full court is perceived to be capable of speaking for itself if it
disagrees.
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\8\ As the Commission's Final Report explains, the Ninth Circuit's
previous experiment with regional calendaring was so totally different
that no pertinent conclusions can be drawn from it. Likewise, the
``old'' Fifth Circuit's experience is dissimilar in that it operated
through divisions only in transition. But the step is nevertheless not
radical in the Ninth Circuit, for it already has Administrative Units,
Northern, Middle and Southern.
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I am, of course, familiar with the concerns that have been
expressed about how the divisional concept would work. I understand
where they are coming from, because a known quantity--even a flawed
one--may seem safer than an unknown one, which surely is imperfect as
well. However, I disagree that the ``disadvantages'' are genuine
difficulties.\9\ In reality they are strengths of the divisional
structure that correspond to weaknesses of the status quo. In my view,
the ``disadvantages'' do not come close to outweighing the advantages
of the divisional structure.
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\9\ Chief Judge Hug has succinctly summarized them in his Analysis
of the Final Commission Report (January 11, 1999), which I believe has
been circulated to your Committee and to other members of Congress.
---------------------------------------------------------------------------
The perceived disadvantages are that divisional decisions would not
bind other divisions and the circuit-wide en banc would no longer exist
to maintain and develop circuit law; that the Circuit Division would be
an additional and cumbersome level of appellate review, resulting in
additional expense and delay; the present participation of all
appellate judges circuit-wide in resolving circuit law would be
eliminated, and practical problems of assignment would ensue; and
``splitting'' California would produce different interpretations and
enforcement of the law within the state. However, as I see it:
1. A circuit-wide en banc process is not effective and is not
necessary to the divisional concept, since the divisions will sit
as full courts to decide issues of exceptional importance and to
maintain coherent and consistent law within the division.
Divisional decisions should not bind other divisions because
otherwise, the Court of Appeals for the Ninth Circuit is back to
square one: All circuit judges would have to try to read and
monitor all decisions of all divisions, and participate in the
rehearing process for all of the court's output (at least up to the
time a case goes to a limited en banc court).
2. The divisional structure replaces the circuit-wide limited en banc
for issues of exceptional importance with a full court divisional
en banc in order to increase participation of judges in that
function. The limited en banc process permits no participation in
the outcome by judges who are not drawn for a limited en banc
court. Because not all judges have a say in it, the limited en banc
is too limited to result in a decision that truly speaks for all
judges on the court. It is also a time-consuming process that is
regarded by some judges as not worth the candle, particularly since
the composition of the limited en banc court (unlike a true en
banc) is not known when voting occurs. By contrast, under the
divisional structure every divisional judge will both participate
in the en banc process and be on the en banc court. In this way
issues of exceptional importance will be resolved for the division
by every judge on the division. This generates greater
participation and closer attention to the outcome. While judges
will presumably continue to review petitions for rehearing and be
able to make sua sponte calls for en banc rehearing, circulate
memoranda in support of or in opposition to going en banc, and (if
active) vote on whether to take the case en banc, their
participation will not stop at this point as it may do now. For
under the divisional structure, if a matter does go en banc, each
judge will be assured a place on the bench.\10\
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\10\ Chief Judge Hug's Analysis suggests a related disadvantage,
that resolution of conflict by the Circuit Division would be by
thirteen judges, not representative of the full court or even
proportionately representative of the divisions. The short answer is
that 13 out of 28 is more ``representative'' than 11 out of 28, which
is how the limited en banc court is currently composed. But the real
point is that the Circuit Division (unlike the present limited en banc
court) will have limited power--its only authority will be to weigh in
on one side or the other of a square conflict. That assignment could
well be done by fewer even than 13 because two entire divisions will
already have fully considered the issue.
3. Although the Circuit Division may appear at first glance to add a
new level of review, it really doesn't. Today in the Ninth Circuit,
a panel decision may be reheard by the panel, by a limited en banc
court, and by the full court (something which hasn't happened, but
could). All of this can take place without the parties wishing it
to, and they can be asked to file supplemental briefs and must show
up for reargument--which adds expense, and the process can
unfortunately take a long time--which means delay for the
litigants. Under the divisional structure, a panel decision may be
reheard by the panel, by the full division, and by the Circuit
Division but only if the panel decision (left in place by the full
division) or the en banc decision squarely conflicts with the
settled law of another division. In other words, there are
precisely the same number of possible layers of review under the
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divisional structure as under the present limited en banc system.
In any event, if the Circuit Division takes a reasonable view of its
mission--which we must assume that it will--then it is unlikely to
have that much to do, for it will be the rare case that
qualifies.\11\ Inconsistency alone is not sufficient for Circuit
Division review. There must be square and significant conflict.
Each division will take care of its own inconsistencies, and
inconsistencies between divisions are inconsequential (because they
are not precedential outside the division) unless they directly
(and deliberately) occur with respect to issues on which uniformity
throughout the circuit is important. Thus, the Circuit Division's
jurisdiction will not be triggered unless some division creates a
square conflict on an issue where consistency matters.\12\ Even
then, additional work for the parties (and the Circuit Division)
should be minimal because the petition for rehearing in the
division will have raised the conflict and the Circuit Division
will already have the benefit of a fully developed record and two
reasoned (but conflicting) opinions.
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\11\ Only 10 percent of limited en bancs in the last ten years have
been to correct a conflict.
\12\ The Commission assumed that all divisions will be bound by
current Ninth Circuit law even though S. 253 does not require
continuation of Ninth Circuit precedent, because it is reasonable to
suppose that the Ninth Circuit Court of Appeals would so provide by
rule.
The Chief Judge's Analysis suggests there may be two other, related
glitches in the statutory scheme. One is the inability of the Circuit
Division to modify the first conflicted case when it has become final.
However, this is no different from an en banc court's power under the
present regime. A limited en banc court may only decide the case in
front of it, but once it does it overrules prior inconsistent
authority. The same would be true of a Circuit Division decision that
adopts the second inconsistent opinion; that rule would become the law
circuit-wide and prior authority (including the first conflicted case)
would be overruled. The second problem has to do with what happens if a
division overrules an existing precedent, in that it would not be
binding circuit-wide unless there is a case in another division that is
in conflict and can be modified. However, the division that overruled
existing Ninth Circuit precedent (that is binding elsewhere) would
itself create a conflict that the Circuit Division could resolve.
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Accordingly, the Circuit Division is not at all a collection of
``Super Circuit Court Judges.'' \13\ While serving on it, judges
may have to read more petitions for rehearing than their
colleagues, and upon occasion will get to break a tie. But if
anything, a judge serving on the Circuit Division will be far less
of a ``super judge'' than a judge who serves on a limited en banc
court at present. Unlike limited en banc judges, Circuit Division
judges will have no power to reconsider issues that are
exceptionally important, or to correct wrong decisions; that will
be for the divisions to do, sitting together in a true en banc.
---------------------------------------------------------------------------
\13\ See Analysis of the Final Commission Report by Chief Judge
Procter Hug, Jr. (January 11, 1999), p. 22.
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4. At first, the divisional structure will no doubt be more
complicated to staff because it is different. But there should be
no more difficulty in randomly assigning a judge from Billings to
Pasadena for eight panels per year for three years than in sending
him randomly to Pasadena, or San Francisco, or Portland, or
Seattle, or sometimes Anchorage or Honolulu during the same period.
In either case that judge will have to be scheduled along with
other members of the panel.\14\
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\14\ The Chief Judge's Analysis suggests two other problems. First,
that resident judges within a division who are assigned to another
division would have no say in the en banc consideration of panel
decisions within the division of their residence. While true, this
doesn't matter. Where a judge's chambers is located is irrelevant to
the law of the division on which that judge serves. Each division will
speak for every judge sitting on the division and every judge sitting
on the division will have a say in its decisions. It will also be the
case under the divisional structure that a majority of the judges on
each division will always be a resident in the division, yet no
individual judge is (or should be) guaranteed a spot on the division in
which he or she lives. The second problem has to do with designation of
the presiding divisional judge, which might turn out to be a brand new
judge or a judge who is not a division resident. However,the senior
active judge traditionally presides on all panels, no matter how
recently confirmed. Since presiding at divisional en bancs is the
divisional presiding judge's only role, it seems logical for the senior
active judge within the division to be so designated.
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The same support the Clerk's office now provides to the Court of
Appeals for the Ninth Circuit will sustain the new divisional
structure as well. Some internal adjustments will no doubt have to
be made, but they are minor and have no significant effect on the
way the court of appeals does business. Rules will be the same
circuit-wide. Motions, screening, and calendaring will also be
essentially the same except for being reorganized by division. The
clerk's ability to identify related issues will continue to be
helpful to divisional panels, especially to the extent they try to
avoid conflict--as they should. Divisions would sit (and hear
argument) where the court now does and the Clerk would have offices
where she has offices now.
The particular divisional arrangement in S. 253 works logistically.
It might work better with a 13 judge cap because the caseload could
be more evenly apportioned, and of course it would be easier with
33 judges than 28. But assignments are necessarily complicated at
present, and making them more permanent should not add to the
burden.
5. As Justice Stevens points out, the problem of splitting California
between two circuits is ``seriously exaggerated.'' It follows that
the problem of putting parts of California into different divisions
is also ``seriously exaggerated.'' Justice Stevens explains:
It is, of course, true that occasionally there will be
conflicting interpretations of both State and Federal issues
that will require resolution either by use of the certification
process for the former, or by our Court's review of the latter,
but such temporary uncertainty is not new to the law. It would
differ only in degree from the comparable uncertainty that
attends conflicting rulings on state court questions in
different California jurisdictions, conflicting rulings on
federal questions in different federal districts within
California and in different federal circuits today. In my
considered opinion, the importance of this concern pales in
comparison with the disadvantages associated with a circuit
that is so large that even the most conscientious judge
probably cannot keep abreast of her own court's output.
In short, to put parts of California into different divisions does
nothing to California that California does not do to itself.
California's system allows for the same inconsistency and the same
forum shopping that it is said the divisional arrangement would
foster. One state court of appeal is not bound by the decisions of
another state court of appeal. Therefore, state law (and state
court determinations of federal law) can be different depending
upon where in the state one lives or does business. By the same
token, the federal system has itself long tolerated inconsistent
determinations of federal law by different circuits. These
inconsistencies survive until settled by the United States Supreme
Court, but in the meantime persons who travel or do business in
different circuits simply deal with the problem. The divisional
concept is unremarkable in this respect. It would neither create a
forum-shopping opportunity that does not currently exist, nor
subject Californians to the possibility of disagreement on the law
(including constitutionality of state-wide initiatives) that does
not happen already.
Even though it is possible that resolving an intra-state inter-
divisional conflict might entail an extra step in the unusual situation
where one of the California divisions refuses to defer to a prior
divisional decision on point, the conflict would get resolved and, I
believe, efficiently. Today, if a federal district court in Los Angeles
decides an issue of state or federal law differently from a federal
district court in San Francisco, and if the issue is appealed, it can
be resolved by the Court of Appeals for the Ninth Circuit, although it
may take a limited en banc court to do it. Under the divisional
structure, if the same conflict were to persist after divisional
review, it could be resolved by the Circuit Division.
As seems clear, no alternative involving California is perfect
because the ``big state'' problem is not easily solved.\15\ Ultimately
I do not believe that it can be solved without structural change, for
it is unlikely that California's contribution to caseload will greatly
change. The options are at least equally, if not more unattractive. To
split California between two circuits leaves the United States Supreme
Court as the only forum for resolving inconsistency, whereas to put the
state in different divisions of the same circuit allows for the
conflict to be resolved within the circuit. Similarly, to make
California its own division is problematic because the caseload and
number of judges required to handle it would start the ``California''
division off at (or over) the top of the maximum number of judges a
decisional unit should have to function well. However, recognizing the
disparate caseload impact that would follow, in the short run it would
be possible to make California a single division, with Arizona and
Nevada in another, and the remaining states and territories a third.
---------------------------------------------------------------------------
\15\ California produces approximately 4,000 appeals annually, or
60 percent of the circuit's appellate work. Thirteen of the authorized
judgeships are held (or may be held if present nominees are appointed)
by California residents.
---------------------------------------------------------------------------
No matter how configured, the divisional proposal resolves the
debate about the Ninth Circuit. As the Chief Justice says of the
divisional proposal for the Ninth Circuit Court of Appeals, it is
``better than merely a compromise between those who have advocated a
split of the circuit and those who argue for the status quo. It appears
to me to address head-on most of the significant concerns raised about
that court and would do so with minimal to no disruption in the
circuit's administrative structure.''
I therefore urge your favorable action on S. 253.
______
Exhibit A
Supreme Court of the United States,
Washington, DC, October 22, 1998.
Dear Byron,
Thank you for providing me with a copy of the October 7, 1998 Draft
Report of the Commission on Structural Alternatives for the Federal
Courts of Appeals. I write to commend you and the Commission for your
efforts. The thorough analysis of historical and contemporary
information about the federal circuit system in the United States is
all the more impressive in that it was accomplished in only nine months
since the appointment of the Commission. And while I believe that the
entire draft report contains useful guidance for the circuit system as
a whole, I write in particular support of the proposal to organize the
Court of Appeals for the Ninth Circuit into three regionally based
adjudicative divisions.
I share many of the concerns expressed by my colleagues, on the
Court who previously corresponded with the Commission and advocated
that some change in the structure of the Court of Appeals for the Ninth
Circuit is needed. The challenges to stay abreast of the law within a
circuit With 28 authorized judges--already a near impossibility--will
continue to grow as the circuit's caseload increases. Similarly, the en
banc review process in a court so large is problematic. As to
complaints that the Ninth Circuit is slow to dispose of its cases, I
would add to the anecdotal evidence in that regard by referring to the
fact that our Court will hear oral argument in, our November session in
Hughes Aircraft Company v. Jacobson, et al., a case that was argued and
submitted to the Court of Appeals for the Ninth Circuit on November 4,
1993. The circuit opinion deciding the case, however, was not filed
until January 23, 1997, and a petition for rehearing was not denied
until October 23, 1997, nearly four years after oral argument. The
effect of such delays on public confidence in our system of justice is
obvious.
The proposal to create three divisions in the Court of Appeals for
the Ninth Circuit with a Circuit Division for conflict correction
strikes me as better than merely a compromise between those who have
advocated a split of the circuit and those who argue for the status
quo. It appears to me to address head-on most of the significant
concerns raised about that court and would do so with minimal to no
disruption in the circuit's administrative structure. As to the
caseload problem facing not only the Ninth Circuit, but all, federal
courts, I agree with the Commission's statement that significant
changes need to be made in the jurisdiction of the federal courts. I
also agree with the separate statement filed by Judge Merritt and you
that changes in diversity jurisdiction are needed. In particular, I
agree with the proposed elimination of in-state plaintiffs' diversity
jurisdiction.
Congratulations again on a well-written report.
Sincerely,
William Rehnquist.
______
Supreme Court of the United States,
Washington, DC, June 23, 1998.
Justice Byron R. White,
Chair, Commission on Structured Alternatives for the Federal Courts of
Appeals,
Thurgood Marshall Building, Washington, DC.
Dear Byron: You have written to invite me to offer any thoughts or
suggestions I might have regarding the Commission's work. My comments
will doubtlessly echo those of others who have addressed the
Commission, but I am pleased to offer some general observations.
Our nation has long been proud of its federal court system. The
federal courts have traditionally been perceived as of the highest
quality. The ability of the federal circuits to continue to perform
work of the highest caliber, however, has recently been placed under
the strain of a large number of unfilled vacancies. I serve as the
Circuit Justice for the Ninth Circuit and, as you know, there are today
seven unfilled vacancies on the Ninth Circuit Court of Appeals, and ten
on its District Courts. These vacancies obviously have a negative
effect on the ability of the Ninth Circuit to carry out its work in a
timely manner. The Chief Justice has already spoken to this issue, and
I share his concerns.
The pressures on the federal courts have been escalating rapidly
because Congress has been enacting broad provisions under federal law
criminalizing conduct historically regulated under state and local
police powers. The result has been a significant expansion of federal
court jurisdiction. All of this makes the work of your Commission very
important indeed.
With respect to the Ninth Circuit in particular, in my view the
circuit is simply too large. It embraces nearly one-fifth of our
nation's population. It handles roughly one out of every five appeals
in the federal system. With 28 appellate judges, it is nearly twice the
size of the next largest circuit. Because of its cumbersome size, the
Ninth Circuit alone among the federal circuits is currently forced to
use en banc panels comprised of eleven selected judges. See 92 Stat.
1663, Rule 35-3 (CA9 1994).
Such panels, representing less than one-half of the authorized
number of judges, cannot serve the purposes of en banc hearings as
effectively as do the en banc panels consisting of all active judges
that are used in the other circuits. It is important to the federal
system as a whole that the Courts of Appeals utilize en banc review to
correct panel errors within the circuit that are likely to otherwise
come before the Supreme Court. It is also important that every circuit
review en banc its rules that are in conflict with other circuits in
order to examine the wisdom of perpetuating the conflict. The Ninth
Circuit resolved only eight out of 4,841 cases en banc in the twelve
months ending September 30, 1997. During that same period, this court
granted hearing on 25 cases from CA9, and summarily decided 20 more.
These numbers suggest that the present system in CA9 is not meeting the
goals of en banc review.
In my view, some division or restructuring of the Ninth Circuit
seems appropriate and desirable. I have no particular suggestion
regarding how that division should be drawn, but I hope that the
Commission will take a fresh and independent look at the alternatives.
It is human nature that no circuit is readily amenable to changes in
boundary or personnel. We are always most comfortable with what we
know, and it is unrealistic to expect much sentiment for change from
within any circuit. The main difficulty I expect that the Commission
may encounter when weighing the alternatives is the size in population
of California, which, even if all alone, would continue to be the
largest of the federal circuits. In some proposals I have seen it
suggested that Arizona be placed with non-contiguous areas in the
Pacific Northwest. I find that proposal troublesome. Perhaps Arizona
could be placed in the Tenth Circuit, although I am aware that judges
in the Tenth Circuit are opposed to such a change. Or perhaps
California itself could be divided and placed within two different
circuits.
There are also other proposals for setting up separate divisions
within CA9, or for setting up some district court appellate panels to
handle most of the error correction part of the appellate review
process. These approaches are untried but should be weighed along with
the other options.
If you believe I can be of any more specific assistance, I will be
pleased to respond. You have an unenviable task.
Sincerely,
Sandra Day O'Connor.
______
Supreme Court of the United States,
Washington, DC, August 24, 1998.
Hon. Byron R. White,
Chairman, Commission on Structural Alternatives for the Federal Courts
of Appeals,
Thurgood Marshall Building, Washington, DC.
Dear Byron: Please forgive me for being so slow in responding to
your invitation to comment on the Ninth Circuit issue. I would like to
make just one point. In my opinion the arguments in favor of dividing
the circuit into either two or three smaller circuits overwhelmingly
outweigh the single serious objection to such a change. That objection,
of course, is the concern about placing some California districts in
one circuit and the remainder in another.
I realize that members of the California Bar regard this
possibility as unacceptable, but I have long believed that their
concerns are seriously exaggerated. It is, of course, true that
occasionally there will be conflicting interpretations of both State
and Federal issues that will require resolution either by use of the
certification process for the former, or by our Court's review of the
latter, but such temporary uncertainty is not new to the law. It would
differ only in degree from the comparable uncertainty that attends
conflicting rulings on state court questions in different California
jurisdictions, conflicting rulings on federal questions in different
federal circuits today. In my considered opinion, the importance of
this concern pales in comparison with the disadvantages associated with
a circuit that is so large that even the most conscientious judge
probably cannot keep abreast of her own court's output.
Having some notion of the time and effort that you have devoted to
this assignment, I want to express my special thanks for what you have
done and are continuing to do. It is characteristic of someone who
never pauses to ask what his country can do for him because he has
answered the more important question so often and so consistently.
Sincerely,
Justice John Paul Stevens.
______
Supreme Court of the United States,
Washington, DC, August 21, 1998.
The Honorable Byron R. White,
Chairman, Commission on Structural Alternatives for the Federal Courts
of Appeals,
Thurgood Marshall Building, Washington, DC.
Dear Byron: I have refrained from conveying to you my views
concerning realignment of the Ninth Circuit, since I think it unlikely
that I can contribute any fact or consideration that you and the
distinguished members of your commission are not already aware of.
However, after reading the thoughtful letter of Justice Kennedy--who
does have special expertise on the subject--I find myself so thoroughly
in agreement with his analysis that I must send along a seconding
statement.
I will add to what he has said only two points: First, the function
of en banc hearings--which the current size of the Circuit discourages,
and the incomplete and random nature of its en banc panel deprives of
predictability--is not only to eliminate intra-circuit conflicts, but
also to correct and deter panel opinions that are pretty clearly wrong
(which occasionally occur, of course, in any Circuit). The
disproportionate segment of this Court's discretionary docket that is
consistently devoted to reviewing Ninth Circuit judgments, and to
reversing them by lop-sided margins, suggests that this error-reduction
function is not being performed effectively. The following figures are
compiled from the statistics maintained by the Clerk's Office:
----------------------------------------------------------------------------------------------------------------
Total SCt Two or Unargued
October Term Cases Argued From Reversed or Unanimous Fewer Summary
Argued1 CA9 Vacated Dissents Reversals
----------------------------------------------------------------------------------------------------------------
1997 94 17 14 10 13 0
1996 88 21 20 12 12 6
1995 90 12 10 4 10 2
1994 94 17 12 5 10 1
1993 95 14 12 9 10 0
1992 113 22 15 6 11 1
----------------------------------------------------------------------------------------------------------------
\1\ Excludes cases where writ of certiorari was dismissed as improvidently granted.
My second point is that, in my judgment, this Court will have no
difficulty sustaining whatever additional caseload will be created by
the addition of a Circuit, and by the necessity of being especially
prompt in resolving conflicts between the two Circuits containing
California, (The latter necessity could be reduced by requiring an en
banc heading when either of the two Circuits wishes to depart from a
holding of the other.) Indeed, it may well be that the new Circuits'
greater ability to perform what I have called the error-reduction
function will result in a net decrease in our business from that part
of the country. But if an increase does occur, our docket has been such
in recent years that I am confident we can manage it. For all the very
good reasons described by Justice Kennedy, the additional effort will
be well spent.
I wish you and your colleagues success in your difficult task.
Sincerely,
Justice Antonin Scalia.
______
Supreme Court of the United States,
Washington, DC, September 9, 1998.
The Honorable Byron R. White,
Chairman, Commission on Structural Alternatives for the Federal Courts
of Appeals, Washington, DC.
Dear Byron: Chief Judge Hug was kind enough to send me a copy of
the letter to you of August 29, written on behalf of past, present and
yet-to-be Chief Judges of the Ninth Circuit, which challenges my
assertion that a disproportionate number of cases from the Ninth
Circuit are regularly taken by this Court for review, and a
disproportionate number reversed.
The letter contends--without citing any data--that the percentage
of this Court's discretionary docket devoted to reviewing CA9 judgments
(18 percent over the past six terms combined) ``corresponds very
closely to the percentage of cases decided in the Ninth Circuit, as
compared to the total in the country.'' Letter at 4. As far as I can
discern, this latter percentage represents a fraction, the numerator of
which is all cases decided on the merits in CA9, and the denominator of
which is all cases decided on the merits in all Federal Circuits--a
figure that averages 17.2 percent over the five terms ending with OT
1996 (the figures for OT 1997 are not yet available). It is
meaningless, however, to compare that percentage (CA9's share of the
United States Circuit Court docket) with CA9's share of this Court's
entire docket--which includes, of course, many cases taken from state
courts. A proper evaluation would compare CA9's share of Circuit Court
business with CA9's share of this Court's docket devoted to Circuit
Court cases. That comparison shows that during the five-year period in
which CA9 disposed of an average of 17.2 percent of all Circuit
business, CA9's cases occupied an average of 25.3 percent of this
Court's Circuit docket--a share that is larger by almost half.
------------------------------------------------------------------------
CA9's Share of SCt Docket
October Term CA9's Share of US Circuit Devoted to Reveiwing US
Court Docket1 (percent) Circuit Courts2 (percent)
------------------------------------------------------------------------
1997 Not available 21.5
1996 18.7 32.3
1995 16.2 20.3
1994 15.9 26.2
1993 17.1 23.7
1992 18.1 24.2
------------------------------------------------------------------------
\1\ These numbers are compiled from the annual reports of the Director
of the Administrative Office of the United States Courts. The
percentages refer to the Ninth Circuit's share of the total number of
appeals decided on the merits during the twelve-month period ending
September 30 that corresponds roughly to the indicated Supreme Court
Term. The Director's statistics do not include cases from the Federal
and Armed Forces Circuits.
\2\ To facilitate comparisons, these numbers exclude cases from the
Federal and Armed Forces Circuits.
The Chief Judges also assert--again, without citing any data--that
the Ninth Circuit's record during OT 1997 of being reversed 82.4
percent of the time falls within the ``historical norm for the Court's
reversals nationwide.'' Id. During the last six terms, however, this
Court's nationwide reversal rate has never exceeded 71.1 percent. For
every term within that period, CA9's reversal rate has appreciably--
sometimes drastically--exceeded the national average. And the gap is
even more pronounced when one compares CA9's reversal rate, not with
the combined reversal rate for all courts, but with the more relevant
figure of the combined reversal rate for all courts other than CA9:
Averaging the figures for the last six terms, CA9's reversal rate is 81
percent, and the average for all other courts 57 percent.
------------------------------------------------------------------------
Nationwide Nationwide
October CA9's Reversal Rate Reversal Rate Reversal Rate
Term (percent) Including CA9 Excluding CA9
(percent) (percent)
------------------------------------------------------------------------
1997 82.3 58.9 53.3
1996 95.2 71.1 62.7
1995 83.3 61.0 56.9
1994 70.6 66.3 65.2
1993 85.7 52.9 42.5
1992 68.2 64.2 63.1
------------------------------------------------------------------------
There must be added to the inordinate frequency of reversal, of
course, the likewise inordinate frequency with which reversal has been
by a unanimous or near-unanimous Supreme Court, as described in my
earlier letter.
There is, in short, no doubt that the Ninth Circuit has a
singularly (and, I had thought, notoriously) poor record on appeal.
That this is unknown to its Chief Judges may be yet another sign of an
unmanageably oversized Circuit.
Sincerely,
Justice Antonin Scalia.
______
Supreme Court of the United States,
Washington, DC, August 17, 1998.
The Honorable Byron R. White,
Chairman, Commission on Structural Alternatives for the Federal Courts
of Appeals, Washington, DC.
Dear Byron: In response to your invitation, I am pleased to comment
on the question of the geographic boundaries of the United States Court
of Appeals for the Ninth Circuit. Based on my observations and
perspective as a former judge of that court and as a member of this
Court, I submit the reasons for dividing the Ninth Judicial Circuit
outweigh the reasons for retaining it as now constituted.
background
In 1975, the Court of Appeals for the Ninth Circuit, anticipating
an increase in its thirteen authorized judgeships, began informal
discussions to decide whether to recommend division of the Circuit.
There was a difference of opinion; but a majority of the judges, myself
among them, concluded the Circuit should maintain its geographic
boundaries at least until it could operate for a time with a full
complement of judges. We wanted to experiment, to determine the
advantages and disadvantages of a large Court of Appeals. So the court
did not recommend changes in its geographic jurisdiction. A 1978
statute, Pub.L. 95-486 (92 Stat. 1633), authorized ten new judges for
the court. In response, and as permitted by the new statute, the court
implemented a limited en banc panel composed of fewer than all the
court's judges. Some of us wanted nine judges on the panel, others
thirteen. The resulting compromise was eleven.
In part, I think, because some of us did recognize that the large
circuit was an experiment, we devoted tremendous time and energy to
make it a success. We hoped the opportunity to decide a large number of
cases might yield principles of decision which would bring more clarity
and cohesion to the law than if the Circuit were smaller. We thought
the bar would benefit if nine states were to have a single resolution
of any common issue. More ambitious suggestions, such as assigning
judges to discrete subject areas for a period of time, were thought
problematic and were not pursued.
As the Federal Courts Study Committee observed, the Courts of
Appeals have been faced for more than a decade with a ``crisis of
volume.'' Report of the Federal Courts Study Committee 109 (April 2,
1990). Like all of its sister circuits, the Ninth Circuit confronted
the problem by innovations and changes, not the least important of
which was the successful use of Bankruptcy Appellate Panels. The
Committee was also correct to note, however, that increases in
productivity ``seem to be approaching their limit.'' Ibid.
Few members of the public, indeed all too few members of the Bar,
appreciate the scholarship and dedication of the individual judges on
our courts of appeals. I retain the greatest admiration and respect for
all of my former colleagues. Since I have left the Court of Appeals,
their workload has again increased in dramatic proportions. It is
remarkable that they have been able to manage the case load, though it
seems to me unfair to ask them to continue to process such a high
number of cases per judge. This heavy case load makes it all the more
urgent to ensure that the size of the circuit is not an additional and
systemic problem.
reasons for concern about present size
I have not had the opportunity to study all the submissions made to
your Commission, but my present view is that the large Circuit has
yielded no discernible advantages over smaller ones. From my
discussions with the judges of the court and my review of some of the
material submitted in support of retaining the Circuit with its present
boundaries, what is striking is the relative absence of persuasive,
specific justifications for retaining its vast size. A court which
seeks to retain its authority to bind nearly one fifth of the people of
the United States by decisions of its three-judge panels, many of which
include visiting Circuit or District Judges, must meet a heavy burden
of persuasion. In my view this burden has not been met. The size of the
Ninth Circuit has a number of disadvantages, a few of which I shall
mention.
First, a laudable desire to respect the views and prerogatives of
other judges on the court tends, I think, to encourage judges to avoid
general principles so that other members of the court can write on the
same subject. The result is a certain lack of clarity and cohesion in
the case law of the Circuit.
Second, there is an unacceptable risk of intra-circuit conflicts,
or, at the least, unnecessary ambiguities. A large number of
dispositions tends to make it difficult for judges to keep abreast of
the jurisprudence of the court. Soon after the 10 judges were added in
1978, not to mention the five additional judges in 1984, see Pub.L. 98-
353 (98 Stat. 346), I found I could not read all of the published
dispositions of my own court. This in turn causes inadvertent intra-
circuit conflicts. Further, even when judges in good faith attempt to
follow stare decisis, a certain potential for error exists. The risk
and uncertainty increase exponentially with the number of cases decided
and the number of judges deciding those cases. Thus, if Circuit A is
three times the size of Circuit B, one would expect the probability of
an intra-circuit conflict in the former to be far more than three times
as great as in the latter. The number of en banc decisions should be
correspondingly higher, yet the Ninth Circuit, which is the largest
circuit by far, does not use its en banc process more often than other
circuits. In some years the Ninth Circuit has had fewer en banc
hearings than other circuits even in terms of absolute numbers. True,
en banc hearings are such a small percentage of the total number of
dispositions system-wide that no clear comparative pattern of
utilization emerges, even on a ten-year study. It is quite apparent,
however, that the Ninth Circuit does not come close to the number of en
banc hearings necessary to resolve intra-circuit conflicts, much less
to address questions ``of exceptional importance.'' Fed. R. App. Proc.
35(a). Uncertainty and lack of cohesion in the law are antithetical to
the ends of our judicial system.
A decision in an en banc case, as a general rule, requires more
time, more deliberation, and more writing than go into the ordinary
three-judge panel opinion. The result, however, is beneficial. Products
of en banc consideration, majority opinions and separate writings,
reflect extra efforts invested in the process and represent appellate
judging in one of its most instructive forms. En banc opinions assist
other courts, including the Supreme Court, in resolving difficult legal
issues. And where circuit precedent has been ``overtaken by the tide''
of authority from other Courts of Appeals, Critical Mass Energy Project
v. Nuclear Regulatory Comm'n, 975 F. 2d 871, 876 (CADC 1992) (en banc),
rehearing en banc allows a circuit the opportunity to assess the
soundness of its earlier views and, if need be, to put its house in
order before the Supreme Court must do so. If the Ninth Circuit were
divided, then the necessity for more en banc hearings, and the harm
from the failure to use the device often enough, would be reduced.
Third, even if the Court of Appeals does have a consistent internal
law in a number of subject areas, its size prevents the multiple panel
opinions that sometimes produce inter-circuit conflicts. In other
words, if the Ninth Circuit were to be divided into two or more
circuits, then we would be more likely to have the benefit of more than
one panel opinion on a given issue and would have the advantage of the
views of more judges. While intra-circuit conflicts or ambiguities and
the instability they create are harmful to the system, inter-circuit
conflicts, where there is reasoned and deliberate disagreement, are
instructive to the system as a whole and in particular to the Supreme
Court.
Fourth, although I deplore the tendency to increase the number of
Article III judges and to expand the jurisdiction of the federal
courts, past experience would seem to show that, even if federal
jurisdiction is not increased, a certain number of additional judges
will be needed in the future. The Commission's report will be
influential in considering the size of the Circuit not just at present
but for perhaps two decades. The Commission, therefore, may wish to
consider what recommendation it would make if the Ninth Circuit were to
have 40 or more judges. The likelihood of the addition of some judges
is a further reason to divide the Circuit now, so that the problems I
note are not exacerbated.
Fifth, the recruitment of judges is a relevant consideration. A
talented lawyer or jurist who contemplates the prospect of service on a
court which should be designed to offer the benefits and rewards of a
collegial relationship might well hesitate before agreeing to serve on
a court where some 3000 different combinations of judges will make up
the panels, and where he or she will be the junior judge on a court of
28 active judges, in addition to valued senior members.
This brings me to a sixth observation about the Ninth Circuit even
in its present size. Our constitutional tradition has been one of broad
community participation in the judicial selection process. When a court
is seen as an integral part of a community, then persons and groups
from the community as a whole, and not just the bar, can insist that
the political branches consider nominees who are distinguished by their
fairness, detachment, and impartiality. The sense of shared identity
and responsibility dissipates, however, when a circuit is so large that
the makeup of a panel is a luck-of-the-draw proposition, with a strong
likelihood of drawing judges having no previous attachment to the
affected community. In these circumstances there is less incentive for
groups other than political ones to become involved in the judicial
appointment process. If the selection and nomination process is
accessible and meaningful only to those with partisan interests, there
will be a tendency to give less consideration to those qualities of
judicial temperament and demeanor that are essential to a fine
judiciary. I am concerned, then, that in the future the large size of
the Circuit will have an adverse effect on the judicial selection
process. Justice must be detached but should not be remote; judges must
be impartial but ought not to be faceless. When an appellate court
becomes as large as the Ninth Circuit, there is a greater risk that
unfortunate influences--will predominate in the appointment process.
Special interests work best when simple lines of responsibility are
blurred.
This is related to my seventh concern, which is that the present
size of the Ninth Circuit is not sensitive to the vital necessity of
preserving the values of federalism. As noted by the Judicial
Conference's most recent study of the federal courts, those values are
reflected in our long tradition of appointing judges to serve a
specific region. See Judicial Conference of the United States, Long
Range Plait for the Federal Courts 43 (December 1995). For this reason,
and because of the undesirability of any of the contemplated structural
alternatives for the federal appellate system, see Report of the
Federal Courts Study Committee 116-124 (April 2, 1990), our present
system should be preserved and strengthened. The legal communities and
other constituencies in the separate states ought to have a real
interest in the judges of their respective circuits, and the judges,
conversely, ought to have historic and professional ties to the regions
they serve. The experiment accepted in 1978 represents a notable
departure from the design which has served us so well. What began as an
experiment should not become the status quo when it has not yielded
real success. In my view the judicial system would be better served if
the states of the present Ninth Circuit were to comprise more circuits
than one.
possible ways to divide the circuit
It is one thing to identify a problem, another to solve it. How to
split the Ninth Circuit is a difficult, sensitive question. In an
attempt to offer some assistance, I make these brief observations.
The States of Alaska, Washington, Oregon, Idaho and Montana have a
community of interest and a geography that justify assigning them to
their own circuit. There is no reason to hold these Northwest states
hostage to the difficulty of determining a proper circuit for
California, Arizona, Hawaii, and Nevada. If the solution for the latter
states is not at hand, that could be studied and debated while the
Northwest states concentrate their energies on at once forming a
cohesive and effective circuit.
The problem with the remaining states, of course, is the vast
population of the State of California. California's population today is
the rough equivalent of the entire population of the United States at
the time of the Civil War. The problem, however, suggests its own
solution. Serious consideration should be given to assigning California
to two different circuits. The Districts of Northern and Eastern
California could be in one circuit, with, say, Hawaii and Nevada. The
Districts of Central and Southern California could form another, with
Arizona, Guam, and Saipan. These are just illustrative possibilities,
for I have not studied projected case loads or population figures.
The described alignment would give Senators from California a
special interest in two circuits, not just one. The attendant
advantages of manageable size and sensible administration, however,
seem to me to overcome that objection, if indeed it be one. If
California were not divided, moreover, the number of judges required
for California alone would constitute a circuit so large that the
deficiencies already present in the Ninth Circuit might persist.
If California were assigned to two circuits, it would, of course,
be imperative to ensure prompt resolution of any conflict between these
circuits with respect to issues affecting California. I have seen no
proposal for an inter-circuit en banc procedure that makes sense or is
fair to the bar and litigants of the State. To take just one example, a
bill in the House of Representatives in the 103d Congress provided
that, in the event of a conflict between the two circuits, the
``California'' judges from each Circuit would constitute in inter-
circuit en banc. See H.R. 3055, 103d Cong. Sec. 3 (1993). This is
contrary to our tradition and to sound judicial principles. After being
appointed some judges find it necessary or convenient either to move to
California or to move away from it, depending on their individual
situations, Does mere residence while serving on the court determine
who is a ``California'' judge? In addition, an inter-circuit en banc
should bind both circuits, but it would be inappropriate and
destructive of collegiality to require ``non- California'' judges to be
bound by their ``California'' colleagues on important questions of law.
Yet this would be the necessary result, for even if the cases prompting
an inter-circuit en banc arose from California, the en banc, decision
would bind both circuits in cases arising from all other states.
At one time, I thought the absence of a fair and workable proposal
for an inter-circuit en banc mechanism was an all but insurmountable
objection to allowing two circuits to operate within a single state. I
have begun to think this is not an obstacle. The judicial system could
function well without an inter-circuit en banc, leaving to the Supreme
Court the responsibility to resolve any inconsistent decisions
affecting the single state. After all, the government of the United
States functions well despite the possibility of having to litigate a
question in multiple circuits and the concomitant possibility of
conflicting decisions in those courts. Furthermore, duplicative
litigation and potential conflict between two circuits in the same
state would hardly be unfamiliar to California, which like every state
already faces the possibility of litigating the same question in both
state and federal court. Where such litigation results in a conflict
between a state's highest court and a federal court in that state on a
question of federal law, our Court resolves the conflict. See, e.g.,
South Dakota v. Yankton Sioux Tribe, ____ U.S. ____, 118 S.Ct. 789
(1998) (conflict between the Supreme Court of South Dakota and the
Eighth Circuit). No one has suggested that such conflicts are the
result of some serious dysfunction of judicial structures. If
duplicative litigation, in practice, should result in an excessive
burden on the State of California, the statutes and rules governing
transfer and consolidation of cases could no doubt be adapted to
mitigate the problem. Thus, although not insensitive to the potential
burden to California of having to defend its laws in two different
circuits, I believe the advantages attendant to California in having
concise, orderly, predictable case law in two circuits would outweigh
the temporary problems of a few conflicting decisions, decisions which
can have prompt resolution in this Court. The advantages to all of the
other states of the present Ninth Circuit have been enumerated.
conclusion
My present view is that if the Ninth Circuit were divided, the new
alignment could better serve the orderly and efficient administration
of justice. My further conclusion is that the State of California could
be assigned to two different circuits and the Supreme Court could act
with the necessary speed and determination to resolve any conflicts
that create difficulty or uncertainty in administering and enforcing
the laws and policies of that State.
I extend to you and your Commission my greetings and special thanks
for undertaking this study, which will be of vital importance to the
federal courts and to our judges, who remain devoted to preserving the
integrity of the justice system.
Sincerely,
Justice Anthony M. Kennedy.
______
Supreme Court of the United States,
Washington, DC, September 11, 1998.
The Honorable Byron R. White,
Chairman, Commission on Structural Alternatives for the Federal Courts
of Appeals,
Thurgood Marshall Building, Washington, DC.
Dear Byron,
You have asked three questions: What major problems do the Courts
of Appeals face? What measures would I recommend to resolve them? What
works well in the federal appellate system? I shall address those
questions in order, drawing upon my former experience (1990-1994) as
Chief Judge of the First Circuit--our smallest Circuit Court of
Appeals. I have not worked in the Ninth Circuit, and I shall not
express a view about whether that Circuit has special problems that
warrant its division. I suspect, however, that, at least to some
extent, the Ninth Circuit's experience reflects the more general
problems that every circuit faces.
My conclusion is that your Commission should, among other things,
examine the various forms of restructuring the appellate system
suggested in Chapter 10 of the Long Range Plan for the Federal Courts.
The States, when faced with serious problems of congestion, have had to
consider restructuring--including the use of additional ``tiers'' of
review. And the federal courts eventually may have to do the same. In
the meantime, we should continue our efforts to maintain efficiency in
the face of increasing caseload--through, for example, ``tracking'' and
``alternative dispute resolution.'' Your Commission might also explore
ways of preventing unnecessary caseload increases, say through
institutionalizing efforts to inform Congress about the practical
impacts of proposed legislation upon the federal courts (which, of
course, affects the practical implementation, and hence the ultimate
effect, of any new statute).
1. The major problem, in my view, is one of congestion. That
congestion grows out of the fact that growth in appellate caseload
cannot, or should not, simply be matched through a corresponding
increase in the size of the federal appellate system.
On the one hand, the number of federal appellate cases now
approximates 50,000 per year, having multiplied by a factor of ten
to fifteen over the past half century. The caseload of the First
Circuit, a court of six active, and five senior, judges, for
example, now approximates 1500, or, say, 250 cases per active judge
per year. (The First Circuit had about 1200 cases per year when I
was a member of that court.) Of course, many cases disappear from a
docket through settlement or some obvious procedural failing.
Others contain only a simple fact-related issue that may require
little of a judge's time for resolution. Senior judges provide
considerable assistance. Nonetheless, in my experience, about one-
third or so of the total docket contained cases raising serious
legal issues--those that would each call for a significant amount
of a judge's time leading to a full judicial opinion. The result
(if I extrapolate from the 1200-case-per-year First Circuit docket
of a few years ago and assume considerable help from senior judges)
is that each active judge might sit on three-judge panels
considering, say, 150 to 160 such cases per year and might write,
say, fifty to sixty full opinions. Given the various other demands
on a judge's time, including brief reading, hearing argument, and
considering simpler cases and motions, this means that a judge must
write a full opinion in two to four days on average. Obviously, the
growing caseload means that, at some point, time available on
average is inadequate.
On the other hand, creating more judicial time by increasing the size
of the federal appellate system itself creates serious problems. It
makes conflicts of various sorts (including ``intangible''
conflicts) more likely. It makes it ever more difficult for the
appellate system to speak with an authoritative legal voice. It
means too many equally authoritative circuit court opinions for the
bar or the academy readily to absorb (and to criticize). It ever
more significantly favors those who have the resources to ``keep
up'' with an evolving state of the law. I do not know the ``right''
number of federal appellate judges, but I do believe that, for
reasons such as these, the appellate system is not infinitely
expandable.
2. To ameliorate this kind of problem, one must either cut back the
intake or improve the system's efficiency. Cutting back intake is
difficult because of the risk that closing federal court doors will
significantly disadvantage one, or another, class of litigants. In
theory, one might work out a system that would assure each such
class adequate legal remedies elsewhere and without, for example,
imposing new burdens upon state courts. But the practical
difficulties involved in providing the necessary assurances are
great. It may prove easier to prevent an unnecessary increase in
federal caseload through careful attention to the likely practical
impact of proposed new federal legislation. But that will require
more than federal judges simply pointing out to Congress that a
proposed new federal law will mean more federal cases. It requires
analysis of how the congestive impact of a proposal might inhibit
achieving the proposal's own objectives (or those of other,
existing laws) as well as suggestions as to how the proposal's
specific objectives can better be achieved in less congestive ways.
Although judges understand the practical impact of additional
caseload, I believe that the Department of Justice is
institutionally better equipped to factor such-matters into the
drafting of particular bills, to bring them to Congress's
attention, and to shape the laws that emerge from the legislative
process accordingly. Those ``separation of powers'' considerations
that make it inappropriate for the Department of Justice to
administer the federal judicial system do not prevent the
Department and the Judiciary from working together, and with
Congress, in respect to this kind of matter. And I believe your
Commission might usefully explore better ways of their doing so.
Improving the system's efficiency (enabling the system to process
more cases without adding a commensurate number of new judges)
involves a variety of approaches that are not mutually exclusive.
The appellate courts are currently trying many of them. They
include greater reliance upon alternative dispute resolution
(including mediation at the appellate level), case management
systems, and certain incentive-based systems. Most circuits,
including the First and the Ninth, have developed informal
``tracking'' systems, which rely upon staff attorneys to prepare
simple matters for decisions that are embodied in something less
than full opinions. The First Circuit's system worked well. Studies
of the Ninth Circuit's system also have reached favorable
conclusions. Unless the system is to be changed radically, this
kind of staff resource should receive necessary funding, and you
may wish to say so.
I recognize that congestion, at some point, may require radical
change. In my view, the kind of structural change that would be
easiest for the federal system to absorb would amount to additional
``tiering.'' States have typically created additional tiers to deal
with congestion. In the Nineteenth Century, Congress established
the federal courts of appeals in part for similar reasons. And, if
one counts the federal Supreme Court, many state systems involve
four tiers.
I do not advocate the creation of a new federal ``fourth tier''
between the present courts of appeals and the Supreme Court. I do
believe, however, that it is worth considering the possibility of
other forms of ``tiering.'' For example, one might add between
district and appellate courts three-judge panels, made up in part
of district judges, to consider fact-intensive ``error correction''
appeals, say, with further appellate review discretionary.
Appointment of additional district judges to such panels would
avoid some (though not all) of the ``more judges'' problems I
discussed earlier. To repeat, I am saying only that this, or
related, proposals maybe worth exploration in some detail.
Regardless, I believe that the congestion problem is serious, that it
will get worse, that its solution will involve a choice of lesser
evils, and that an eventual solution that involves some form of
tiering may prove more practical and less problematic than various
other restructuring suggestions that have been made. For that
reason, I suggest that the Commission further explore the
structural suggestions made in Chapter Ten of the Long Range Plan,
and in particular those related to tiers.
3. You conclude by asking what ``is working well in the federal
appellate courts.'' I am not an alarmist. The appellate courts
normally work well--particularly when federal appellate judges
focus upon, and decide, particular significant questions of law.
The federal judge is meant to be independent and conscientious,
devoting the time and attention that a particular litigant's
individual legal problem requires for proper decision, irrespective
of the litigant's wealth, position, or power. That, in my
experience, is roughly how the federal appellate courts have
worked, do work, and will continue to work. Still, the need for a
guarantee about the future may help explain why I am glad your
Commission has begun to tackle the congestion problem.
Yours sincerely,
Stephen Breyer.
Senator Grassley. Thank you.
Senator Kleinfeld. Or, I mean, Judge Kleinfeld.
STATEMENT OF HON. ANDREW J. KLEINFELD
Judge Kleinfeld. I am only a judge. I do not get a vote.
[Laughter.]
Thank you, Chairman Grassley, Senator Feinstein, members of
the committee. I appreciate the honor of being allowed to
testify before you. I testify on behalf of myself in order to
give you the benefit of my experience as a judge on the U.S.
Court of Appeals for the Ninth Circuit.
My feeling has been, for a long time, that the court should
be split. The fifth circuit was split into the fifth and
eleventh circuits. The eighth circuit was split into the eighth
and the tenth circuits. Those splits worked out fine. There
were no great complexities. It was a simple way of dealing with
the problem of growth of the circuits.
However, I also think that the Commission has done a very
fine job, and nobody in a political system gets everything they
want. Why, even if I were a Senator, I would only have one
vote, and I am not. And I think the Commission is a very fine
solution to the problem of the ninth circuit as a decisional
body.
The Commission has said that, as a decisional body, the
ninth circuit should be divided. Although as an administrative
body, it should not be divided. The Commission has done a fine
job, and I urge you to adopt it.
The problem that you are dealing with is one of the oldest
problems that has been a political issue in the United States.
When the Founding Fathers were trying to put together the
Constitution, they had to deal with the problem that some
states were a lot bigger than other states. Then the chief
problem was Virginia. California did not exist. But it was the
same kind of problem. Virginia was much bigger, much more
powerful, controlled much more wealth, as well as having much
more population, than other States. Somehow they had to
organize the Republic so that Virginia would not so dominate
the other States as to prevent them from expressing their own
autonomy, but that there would be a Federal union in which
Virginia would be adequately represented. They did it. The
problems never go away. The problems of the ninth circuit
continues.
This problem of the ninth circuit has continued for quite a
while. I read in the Commission report that the first proposals
to split the ninth circuit were in the 1930's. It made me think
of the case of Jarndis v. Jarndis in Charles Dickens' novel
``Bleak House,'' where people were born into the case and died
out of the case.
I have been born into this. I am not even all that young a
judge, though I like to think of myself that way, but I was not
born until 1945, and splitting the ninth circuit was already an
old chestnut by then. And unless you take action, I am going to
die out of it, even though I am a pretty young judge, and I
think I will be serving for quite a while yet. There is an
enormous cost in money and in time of this process, and I do
not think the process can be ended until you adopt the
Commission report, or something like it, to divide the
adjudicative responsibilities of the ninth circuit.
Part of the cost is money. I have been able to chat with
the panel that I am on this morning while I am here because all
three of us happen to be here. You have a lot of judges who
have been flying back and forth. I flew on a free ticket that I
got with mileage because I just hate to spend Government money
when I am not making decisions and cases, but you cannot always
do that, not everybody does it.
The money cost is nothing compared to the time cost. The
time we have spent since I have been on the ninth circuit, in
my 8 years, we have had so many court meetings devoted to the
issue of a split, the staff of the ninth circuit has been doing
so much work on whether we should split. This has been going on
for decades, remember. We have been generating staff reports
with statistics and memoranda advocating issues on why we
should not split. People go back and forth to Washington, DC,
and I am sure that with your political experience, you
recognize that bar resolutions, and newspaper editorials and
magazine articles do not happen by themselves. They all take
judicial time, too. At the least, it takes time for the judges
to be interviewed. Frequently, it takes more than that.
Once, when I was on the Board of Governors of our State bar
association about 20 years ago, the chief judge of our
district, I believe at the behest of the chief judge of the
circuit, came to us for a resolution. He wanted a resolution
against splitting the ninth circuit. We retired into executive
session, agreed that none of us much cared whether the ninth
circuit was split, but we all cared a lot about keeping the
chief judge with the organized bar, so we adopted the
resolution opposing the split.
Now, that involved a phone call, maybe a few phone calls,
it involved the chief judge of the district court spending his
morning with us at the Board of Governors of the bar
association. There is a lot of time that goes into this. It
ought to be spent deciding cases, but it will not be until the
split issue is resolved, and it is not going to be resolved
until you split the decisional function of the ninth circuit.
It will just be a ``Bleak House'' that goes on and on and
people are born into and die out of.
The reason that the issue arises, I believe is exactly what
Judge Rymer has said. A decisional unit as large as ours cannot
function in the traditional effective way that a court of
appeals does. Now, that has nothing to do, and it cannot be
solved by, the quality of the judges. The quality of the judges
and the diligence of the judges on my court overwhelms me. I
have never dealt with any group of people as intelligent and as
diligent to serve the public interest, as devoted to the law,
as the judges of my court. The quality is simply overwhelming.
But the job cannot be done by this large a unit. There are
no economies of scale to the appellate process. We do not
manufacture goods, we do not run a railroad. It is a job that
is done with much greater facility by a smaller than a larger
unit. The reason for that is the necessity of communication
within the unit.
The kinds of quality differences or quality problems that
the size of the unit causes were very well explained to me by a
friend recently. I was at the local bar picnic, and the
assistant general counsel of the university and I--we're
friends--and we were chatting, and he was complaining that he
cannot guarantee his clients even qualified immunity because he
cannot tell what the law is.
He says that we are frequently inconsistent with the trend
of the law in the rest of the country and what he knows the
Supreme Court is going to do. So he has to tell his clients to
follow ninth circuit law because the district court will be
bound by it, but he also has to tell them that the result may
depend on the panel and that if the ninth circuit grants cert,
it will reverse. As a result, he cannot confidently bring about
compliance with the law by his client, whose only interest is
compliance so that they can avoid litigation and judgments
against them.
The two reasons are simple, the reasons why we cannot
function as a decisional unit, considering how large we are.
One is that we cannot read or effectively communicate orally to
each other the contents of our decisions. The problem is not
getting information on our desk through some staff statistical
report or tip that a decision may affect our decision, it is
getting it from our desks into our heads. There are too many
decisions to do that with.
The second problem is that we are, so far as I know, the
only court in the English-speaking world, that does not sit en
banc, the only appellate court that does not sit en banc. Our
en bancs consist of less than half the judges, and the
majority, six judges, is less than a quarter of the judges on
our court. So they cannot effectively speak for the court. It
is a roll of the dice. Appellate decision making should not be
that way.
Two-thirds of the judges in the country say that the
largest size that is feasible for an appellate court is
somewhere between 11 and 17. Sounds right to me.
Finally, I would like to remind you that it is entirely an
accident that the Ninth Circuit Court of Appeals is as big as
it is. The court was created for a jurisdiction that consisted
of California, San Francisco mainly, and empty space. The space
is filled in. We are now 20 percent of the population of the
country. If we make a mistake, and we do make mistakes, the
consequences affect far too much of the country. We have too
much power because we affect too much of the country.
The issue before you is serious. It is not as manageable
perhaps as dividing up a regional office of the Veterans
Administration, but neither is it like cessation of states from
the Union. It is not that serious. The fifth circuit and the
eighth circuit divided without any problems. Dividing the
decisional unit of the ninth circuit strikes me as somewhere
closer on the spectrum to dividing up a regional office of the
Veterans Administration than to cessation of States from the
Union. It is manageable. You have got an excellent report. Many
Senators called for it, and I urge you to do it so we can get
back to deciding cases full time.
[The prepared statement of Judge Kleinfeld follows:]
Prepared Statement of Andrew J. Kleinfeld
Mr. Chairman and Senators: Since the beginning of the Republic, one
of our more intricate political problems has been the great difference
in the populations of the states. The Founding Fathers struggled with
the tremendous size of Virginia relative to the other states at the
Constitutional Convention. Today you struggle with the problems of
judicial administration caused by the immense population of California,
compared to all the other states in its judicial circuit. A single
group of judges cannot hear all the federal appeals from a state as
large as California, and also hear all the federal appeals from the
eight smaller states in the circuit, without sacrificing reckonability
and coherence of the law.
The last time the issue of dividing the Ninth Circuit came under
consideration in the Senate, many who were wary of change called for
study by a commission of experts prior to taking any action. A very
distinguished commission was appointed, chaired by the Honorable Byron
R. White, Associate Justice of the Supreme Court. The White Commission
has recommended, basically, that you split the Ninth Circuit into three
separate decisional units to decide cases, but keep it together as an
administrative unit. While a traditional split, as Congress did with
the Eighth Circuit and the Fifth Circuit in past decades, would be
simpler and in my view better because of the simplicity, the White
Commission's proposal would be a great improvement over the status quo.
The Commission concluded, after extensive study, that an appellate
court with as many judges as the Ninth Circuit is too big. The Fifth
Circuit reached the same conclusion when it approached our size and
recommended to you that it should be divided, in 1970. It was,
resulting in the present very successful arrangement of the Fifth and
Eleventh Circuits. The White Commission said ``in our opinion,
apparently shared by more than two-thirds of all federal appellate
judges, the maximum number of judges for an effective appellate court
functioning as a single decisional unit is somewhere between eleven and
seventeen.'' The Commission explains that in a court bigger than that,
the judges cannot read each others' opinions and correct errors en
banc.
I believe that a simple split of the Ninth Circuit, like the
previous splits of the Fifth Circuit into the Fifth and Eleventh, and
the Eighth Circuit into the Eighth and Tenth, would be better for the
law than the White Commission proposal insofar as it relates to the
Ninth Circuit. Senator Murkowski's earlier bill had proposed a simple
split of the Ninth Circuit into the Ninth and Twelfth. The complexity
and novelty of the Commission approach are worrisome, because they will
generate unpredictability and complexity for lawyers and novel
administrative burdens for quite some time. But they would largely
solve the problems we now have in monitoring and achieving consistency
and coherence in the law of our circuit. The White Commission proposal
would be much better than taking no action, and allowing the problems
for the public of a gargantuan circuit to continue unremedied.
If you adopt the bill recommended by the White Commission, I
recommend that you eliminate the provision that some judges shall be
drawn to sit with divisions other than their own. The values to be
promoted by this innovation are slight, relative to the losses to those
judges' divisions. The smaller states, as in the northwest, are
unlikely to have more than one judge on the Ninth Circuit. If the only
judge from a state were drawn to sit with another division for several
years, as the bill now provides, that judge's division would lose the
benefit of that judge's particularized knowledge. That would leave the
people of that judge's state subject to the adjudication of a unit,
none of whose judges knew as much about it.
My remarks are addressed only to the portions of the bill affecting
the United States Court of Appeals for the Ninth Circuit. My remarks
are not addressed to the provisions that would affect other circuits,
district court appellate panels, or any other provisions. You are
doubtless hearing from judges on those other courts about those
provisions. Of course the complexity of the issues raised by these
other provisions can be avoided if you simply split the Ninth Circuit
like the old Eighth and the old Fifth.
Before addressing the problems of size, I'd like to say something
about the costs of the process itself. This issue of whether to split
the Ninth Circuit has been the subject of legislative attention since
before I was born. Unless you split the Ninth Circuit, I am sure that
the debate will continue after I die. The people suffer when their
judges spend so much of their time as this process takes on a matter
other than adjudicating cases. We have had numerous court meetings
devoted to the issue of the split since I was elevated to the Ninth
Circuit eight years ago. The staff of the Ninth Circuit assists the
circuit leadership, as it has for decades, in preparing and circulating
statistics and memoranda addressing whether the circuit should be
split. Several of our judges, and all of our chief judges for many
years, have spent a great deal of time in going to Washington to
address the issue. And here we are again, today.
And I am sure that with your political experience, you recognize
that bar resolutions, newspaper editorials, magazine articles, and
contributions to the debate also take judicial time. When I was on the
board of governors of the Alaska Bar Association almost twenty years
ago, the chief judge of the district court came to our meeting, and
asked us for a resolution opposing a Ninth Circuit split. As I recall,
the chief judge had asked him to solicit it. When he left the room so
that we could deliberate privately, we agreed that none of us much
cared whether the Ninth Circuit was split, but we all cared whether the
chief judge was happy with the organized bar, so we gave him a
unanimous resolution. He had spent the better part of a morning getting
it. Judicial attention to whether the Ninth Circuit should be split,
including testimony in Congress, phone calls, letters, contacts,
interviews, meetings with newspaper editorial boards, faxing, mailing,
clipping, and compiling, has been extensive for decades. All this
judicial attention to the split issue takes a lot of time away from
deciding cases. And it will not stop until Congress splits the Ninth
Circuit.
Our existing Ninth Circuit has many of the best appellate judges in
the United States. We have had a succession of superb chief judges. In
my appellate experience as a practicing lawyer, I never saw panels of
more capable judges, or better prepared judges, than those of the Ninth
Circuit. Yet our reputation does not reflect this high quality. I was
sent a clipping from a small town newspaper in Kentucky, about one of
our many Supreme Court reversals, characterizing us with such phrases
as ``sharply rebuked,'' ``grave abuse of discretion,'' ``stinging
lecture,'' ``scolded the lower court,'' ``procedural legerdemain,'' and
``negligence.'' Despite the high quality of our judges, our Supreme
Court reversal rate is notorious.
A friend of mine who is assistant General counsel to a university
told me he cannot reliably keep his client in compliance with the law,
because on important issues it is impossible to comply with Ninth
Circuit law and Supreme Court law simultaneously. Even though district
courts must follow Ninth Circuit law, he must warn his client that
Ninth Circuit law in some critical areas is inherently unstable because
the Supreme Court will reverse it when they grant certiorari. He may
think that the Ninth Circuit approaches to some of these issues are
preferable to the Supreme Court's, but that does not solve the
university's problem of knowing what law to follow. We owe people
better than this.
Why are judges so good making so many errors? That is a serious
question, and I do not think, in view of our Supreme Court record, that
it can be avoided. The reason, I suggest, is our size. We have so many
judges that we cannot read each others' opinions, and we cannot correct
errors by effectively rehearing cases en banc.
In every organization, there has to be some size limit, at the
bottom end and the top end; such that if the organization was smaller
or bigger, it would be less efficient. That is probably why dentists'
offices do not grow to the size of General Motors, and General Motors
is not operated out of a small garage. Justice Brandeis wrote, in The
Curse of Bigness, ``In every business concern there must be a size
limit of greatest efficiency. What the limit is will differ in
different businesses and under varying conditions in the same business.
But whatever the business or organization, there is a point where it
would become too large for efficiency and economic management, just as
there is a point where it would be too small to be an efficient
instrument. The limit of efficient size occurs when the disadvantages
attendant on the size outweigh the advantages, and for large size, when
the centrifugal force exceeds the centripetal.'' There are no economies
of scale for appellate courts. In our particular activity, we become
less efficient rather than more efficient beyond a certain size.
reading each others' decisions
Judges on the same court should read each others' decisions. We are
so big that we cannot and do not. That has the practical effect that we
do not know what judges on other panels are deciding. It is odd word
usage to call a public body a ``court,'' in the singular, if its judges
neither sit together as one body, nor read each others' opinions.
The Ninth Circuit issues too many decisions for anyone to read. We
learn of decisions of our own court, affecting our own cases, when they
are cited to us by lawyers or by our law clerks. This deprives the
people we serve of two important services a court should provide. We
cannot give them consistent, reliable applications of law to the facts
of their cases. And we cannot spot and correct errors by other panels.
The White Commission said ``[t1he volume of opinions produced by
the Ninth Circuit's Court of Appeals and the judges' overall workload
combine to make it impossible for all the court's judges to read all
the court's published opinions when they are issued.''
Note that the Commission spoke only about the published opinions.
There are around nine times as many unpublished opinions that we cannot
even attempt to monitor. One of my law clerks collected a year's worth
of dispositions, and weighed them at the end of the year. They weighed
forty pounds. Most of what we do that is important is not statements of
rules, because you, not we, legislate. Our job is application of law to
the facts of particular cases. Where there is nothing novel about the
issues of law, we usually do that in unpublished dispositions, but
those who must live with the results say that although we state the
rules of law fairly consistently, our applications of it in unpublished
dispositions are quite inconsistent.
This problem of not knowing what other panels are deciding is
purely a function of size. It has nothing to do with the rate at which
judges produce opinions. If each judge generates the same number of
published decisions per year on a small court or a large one, there
will be four times as many decisions to read if the court is four times
as large. Even if everything else about a large court and a small one
is the same, the judges on the court can read their own, court's
decisions only if it is a small court.
Thus judges on a large court, though of the highest quality, will
do a less capable job than judges on a smaller court of maintaining
coherent, consistent law. They simply cannot maintain the same level of
knowledge of what their own court is doing. Technology cannot repair
this problem. We already have excellent systems for getting decisions
into the hands of all the judges. The problem is not getting the
information from the writing panel to the other judge's desks. It is
getting the contents of a decision from the judge's desk into the
judge's head.
The fastest, easiest way of letting one panel know what another is
doing is usually for judges to talk about it. Sometimes one of the
judges on a panel mentions that another recently decided a related
question, or has it pending. On a small court, the ordinary discussion
at conference probably does much of the job of maintaining consistency
in the law. But a Court of 28 judges has more than 3,000 possible
combinations in which panels sit. Add to that all the visiting judges,
and we are not likely, in so large a court, to learn what we need to
know by easy oral interchange in conference. We just do not overlap
enough in our sittings. The White Commission said that a much smaller
decisional unit than the Ninth Circuit ``would become much more a
`known bench,' fostering judicial accountability and public
confidence.'' But as the White Commission pointed out, on a court as
large as ours, ``it would be rare for a judge to sit with every other
judge of the court more than once or twice in a three-year period.''
There is one judge on our court with whom I have never sat on a three
judge panel, even though that judge was active rather than senior for
four years during my tenure.
The problem I have been discussing harms the consumers of our
decisions, not the producers. If we render inconsistent decisions, the
district courts, practicing lawyers, and, most important, the general
public cannot effectively comply with the law. The great scholar of the
common law tradition, Karl Llewellyn, characterized the chief virtue of
appellate opinions as providing ``reckonability of result.'' Professor
Llewellyn said ``spend a single thoughtful weekend with a couple of
recent volumes of reports from your own supreme court, * * * and you
can never again, with fervor or despair, make that remark about never
knowing where an appellate court will hang its hat. Spend five such
weekends, and you will be getting a workable idea of the local
geography of hat racks.'' Karl N. Llewellyn, The Common Law Tradition:
Deciding Appeals, 179 (1960).
When I was a practicing lawyer, I was generally able to predict
with great accuracy what the Supreme Court of my state would do, even
where there was no case in point. I read its decisions as they came
down, and as Llewellyn suggests, I knew what the thinking process of
each of the five justices would be when faced with a new problem. Of
course, there were occasional surprises, but not very many, to me or to
other lawyers. Our clients benefited from advice based on this high
degree of reckonability. They could learn from their lawyers what the
law was, comply with it, and avoid the expense and misery of
litigation.
The Ninth Circuit, because of its size, is not and cannot be a
reckonable court. No district judge and no lawyer can, by reading even
a few hundred of our decisions, predict what our court will do in the
next case. Even if the decisions could be read, there are over 3,000
combinations of judges who may wind up on panels, so the exercise would
not be worth the time. At best, the bar can predict that we will
restate our clear holdings as controlling law. But different panels may
apply the same holdings to similar facts in different ways. The
disparateness will naturally be higher in unpublished dispositions.
When a circuit crows to a size such that its judges cannot read and
correct other panels' decisions, district judges and lawyers trying to
figure out what the law is are compelled to say that it depends on who
is on the panel.
A court that is not reckonable is of far less use to the general
public, the lawyers who represent them, and the trial judges who must
adjudicate their cases, than one whose outcomes can be predicted. There
is no expense caused by the law that can be so great as the expense to
the public of not knowing what it is. That expense to the public is
much greater than all the salaries, courthouses, air fares, and other
government budget expenses, as large as those are. If people cannot,
with the assistance of good lawyers, say what the law is, the
unpredictability generates lawsuits. Courts should settle disputes, not
create them.
en banc
The other fundamental problem of an overly large court such as ours
is with its en banc process. Traditionally on a court that decides
cases in panels consisting, of fewer than all the judges, there is a
process, called en banc, by which all the judges on the court sit
together to rehear a case about which importance, inconsistency, or
possible error makes them especially concerned.
On a small court, the en banc process often works so well as a
possibility that few en banc rehearings are needed. Judges know, from
frequent sittings together, what outcomes will be viewed as erroneous
by majorities of their colleagues. On a large court like ours, it is a
formal, very time consuming, device.
The practical upper limit on the size of an efficient appellate
court is the number of judges who can effectively sit together en banc.
Sitting together effectively requires three things: (1) an oral
argument in which the unstructured give and take between counsel and
the judges can accommodate the practical needs of all the judges to air
difficult issues; (2) a conference in which reasoned deliberation
rather than mere voting can take place; (3) an opinion writing process
that can work the views of those judges in the majority into a majority
opinion. Other circuits sit together en banc with as many as 17 judges.
The Fifth Circuit, before it split, as it approached the size of the
present Ninth Circuit, decided that it could not effectively sit en
banc.
The Ninth Circuit has by circuit rule limited its en banc panel to
11 judges. Traditionally ``en banc'' has meant the entire court. To the
best of my knowledge, we are the only appellate court in English common
law tradition that calls less than the entire court ``en banc.'' But we
do not sit en banc in the traditional sense of the word. That means we
have no mechanism for assuring that our decisions are collegial.
The word ``collegiality'' in its traditional meaning is critical to
the en banc process. The word is sometimes used in contemporary speech
to mean some combination of civility and bonhomie. That is not its
dictionary definition. The traditional definition is ``shared authority
among colleagues.'' The word is derived from ``the doctrine that
bishops collectively share collegiate authority.'' Because we do not
rehear cases as a full court, we cannot assure that our decisions
represent shared authority among all our colleagues.
The people are entitled to have us act with shared authority. We
were not put in office to be 28 individuals each imposing our
idiosyncratic individual will on the 50 million people of our circuit.
The en banc process is what an appellate court uses to rein in those
judges who may mistakenly canter off the trail of established
principles of law. But our en banc process does not work, as the
frequent Supreme Court reversals of our en banc dispositions show.
The White Commission points out that ``the entire body of judges
for whom an en banc opinion speaks should have a voice in that
opinion.'' Yet we cannot. On other courts, en bancs can assure that
mistaken decisions are repaired in accord with the views of the court
as a whole. But not on ours. We have no true en banc. Our en banc
rehearings are before 11 judges. Eleven is just another panel, not even
40 percent of our 28 judge court. When an en banc panel is divided 6 to
5 on a case or an issue, the majority of the en banc panel is not even
a quarter of the full court.
There is no reason to think that an en banc panel of eleven is
representative of the court. For one thing, no Judge really represents
another. We are not organized by party and we are not representatives.
We decide things individually.
It is not especially likely that any particular en banc will be
representative of the court as a whole in any sense. An en banc panel
is like a random draw of ten (the number of judges drawn for an en
banc, in addition to the chief judge who sits automatically) cards from
a deck. It will rarely come out as a straight or flush. Even though a
coin tossed enough times will come out heads half the time, a single
series of ten tosses will not usually come out five heads, five tails.
For example, consider two judges on our court who are philosophically
quite distinct, Judge Betty Fletcher and Judge O'Scannlain. From 1987
to 1997, ten full years in which they were both active on the court,
Judge Fletcher served on 62 en bancs, Judge O'Scannlain on only 34.
Despite a random draw, one served almost twice as often as the other on
en banc panels! If you run a judicial process as a crap shoot, then
crap shooters' principles will affect the outcomes. The principle here
seems to be, ``when you're hot, you're hot.''
benefits of a smaller circuit
The serious concerns addressed above would be alleviated by
adopting the White Commission proposal or splitting the Ninth Circuit.
Both changes would also afford positive benefits. Particularly for the
less populated states, the judges deciding the cases would have much
more familiarity with the law, procedure, customs of the bar, and
social and economic conditions on which their decisions would be
superimposed.
Much federal law is not national in scope. Quite a lot of federal
litigation arises out of federal laws of only local applicability, such
as the Bonneville Power Administration laws, the laws regarding Hopi
and Navaho relations, the Alaska National Interest Lands Conservation
Act, and the Alaska Native Claims Settlement Act. It is easy to make a
mistake construing these laws when unfamiliar with them. Yet it is a
rare law clerk who has ever heard of any of these complex federal laws.
For example, a judge who sits once in ten years in Alaska, as we do now
on the Ninth Circuit, is unlikely to have a working, knowledge of the
two tremendously important Alaska laws mentioned, which come up in
Alaska federal litigation all the time. This unfamiliarity leads to
errors, as in a recent 9-0 reversal by the Supreme Court, after more
than a year of intense political turmoil in Alaska.
Much federal procedure mirrors state procedure in the particular
district. For example, Federal Rule of Civil Procedure 4 imports state
procedure. Where law is not specified, bar and bench customs in the
different localities often fill it in. It is very helpful for judges to
know how releases, attorney's fees contracts, and other documents for
common transactions, are typically written in a state, so that they
know when something is suspicious and when it is ordinary. In diversity
cases, we are required to apply state law in federal court. Yet on our
court, ordinarily no judge on the panel has intimate familiarity with
the law and practices of the state in which the case arose, except for
California.
Social conditions also vary, in ways that can color judges'
reactions to facts, and disable them from understanding the factual
settings of cases not arising in California. For example, Judges from
Los Angeles tend to have different assumptions about who possesses guns
and what for, than do judges from Idaho, Montana, and Alaska, who tend
to associate gun ownership with longtime law-abiding residents of the
state. Native Americans have reservations in most states in our
circuit, but in Alaska reservations have generally been abolished. It
is quite possible for Alaska lawyers not to point this out in a brief
because it is so obvious and well known, and for Ninth Circuit judges
on a panel and their law clerks, who have never been to Alaska, not to
know it.
A critically important virtue of smaller circuits or decisional
units is that it limits the impact of our mistakes. Sometimes we are
going to be wrong. When we are wrong in a way that affects one American
out of five, as we do now, that is very wrong indeed. Because error is
inevitable, limiting its consequences is a good idea.
Those who advocate more jumbo circuits like the Ninth Circuit
overlook these costs. The logic of those who argue in favor of keeping
the Ninth Circuit as it is implies that all of the circuit courts in
the United States should be consolidated into a single giant circuit
court, which would function as a pool from which panels of judges would
be drawn for the whole country. If you can imagine the problems of
maintaining coherence and predictability of the law in such a circuit,
you need only apply some discount to see what the problems are in the
Ninth Circuit.
There has been a lot of political debate about whether a split
would favor liberals or conservatives, or one interest or another, that
strikes me as a red herring. The political motives of the advocates for
both sides do not have much bearing on which position would be better
as a matter of judicial administration. People can seek good things for
bad reasons, and bad things for good reasons. The regional distribution
of judicial philosophies among members of the Ninth Circuit is entirely
fortuitous. The president, with the advice and consent of the senate,
picks judges, and can find lawyers of whatever philosophy the president
wants in any state. It is perfectly legitimate for the political
branches of our government, not the judiciary, to decide which states
should be in which circuits. That is where the Constitution places the
responsibility. In the White Commission's view and mine, non-political
concerns of judicial administration require smaller decisional units
than we now have in the Ninth Circuit.
The Ninth Circuit now decides cases for about twenty percent of the
nation's population and forty percent of its territory. It is too big.
I urge you to split it, preferably simply as with the Fifth and Eighth
Circuits, or else as a decisional unit, in accord with the White
Commission recommendation.
Thank you.
Senator Grassley. I have 28 minutes left. I hope I can hear
all three of you. Normally, judges enforce time. I did not want
to enforce time, but you are cognizant of the time limits.
And I am going to ask Senator Feinstein if she would ask
her questions. I am going to submit mine for answer in writing,
and then you would adjourn the meeting. And I want to make it
clear to all of you that we will ensure--my questions may not
cover all of the issues that you want to bring up. I will take
additional written testimony from any of you to supplement
anything that you may have wanted to say to other members in
rebuttal to the questions that Senator Feinstein would ask.
Judge O'Scannlain.
STATEMENT OF HON. DIARMUID F. O'SCANNLAIN
Judge O'Scannlain. Thank you very much, Mr. Chairman and
Senator Feinstein.
I would like to begin by stating that as a sitting active
circuit judge, I support the White Commission's findings, and I
am in general agreement with Judge Rymer's comments, but will
emphasize certain points. I will not repeat my written remarks,
but I would request that you have the appendix to my remarks
handy because I do want to refer to a couple of items.
First and foremost, this neverending judicial saga of what
to do about that judicial Goliath, the ninth circuit, an epic
that, as we have heard dates back to before World War II, must
be brought to closure, and decisively.
The White Commission of 1998 and the Hruska Commission of
1973 both came to the same conclusion. Regardless of which
party controlled the Congress when these separate Commission
were appointed, they both concluded that the ninth circuit
needs restructuring.
S. 253 is the most carefully crafted and sophisticated
legislative solution thus far, and hopefully should be the
vehicle to resolve the ninth circuit's future, hopefully, for a
long time. And there is nothing sinister, immoral, fattening,
politically incorrect or unconstitutional about the
restructuring of judicial circuits. This is simply the natural
evolution of the Federal appellate court structure. As courts
grow too big, they evolve into more manageable judicial units.
When the circuit courts of appeals were created in 1891,
there were only nine regional circuits. Since then, the
District of Columbia circuit was created, the tenth circuit was
split off from the eighth, the eleventh circuit was split off
from the fifth, and in due course, I have absolutely no doubt
either the ninth circuit will be restructured along the lines
of S. 253 or a new twelfth circuit will be created.
No circuit, not even mine, Mr. Chairman, has a God-given
right to an exemption from the laws of nature. There is nothing
sacred about the ninth circuit keeping essentially the same
boundaries for over 100 years. And frankly, I am mystified by
the relentless refusal of some of my colleagues, including my
beloved chief and my brother, Wiggins, to contemplate the
inevitable.
The problem, as we have heard, with the ninth circuit can
be summarized quite simply. We are too big now and getting
bigger every day. Although we are officially allocated 28
judges, we currently have 21 active judges, but 19 senior
judges. In other words, there are 40 U.S. circuit judges on our
court today. And when the seven existing vacancies are filled,
our court will have 47 judges.
Now, I have compiled a roster of the ninth circuit judges,
which is on exhibit A of my prepared remarks. And I think you
may find it quite revealing when you turn to it. It is a
remarkable array of judge power, more judges on one court than
the entire Federal judiciary when the circuit courts of appeals
were created.
And in the chart you will see the composition going back to
appointees of President Kennedy, President Nixon, President
Carter, all of the way down to the appointees and the nominees
of President Clinton. And knowing that with the possible
exception of three of the nineteen, these judges are doing 100
percent down to 25 percent, depending on each individual, of
the work of a sitting active judge.
Chart 2 reveals that the ninth circuit has almost double
the number of judges as the next largest circuit and more than
quadruple that of the smallest when the senior judges are taken
into account.
Chart 3 gives a sense of the enormity of the circuit's
population relative to other circuits and the caseload tracks
population quite closely.
Together, these charts reveal that the ninth circuit has
double the average of number of judgeships, handles double the
average number of appeals and has double the average population
of all courts of appeals in the country. As we can see, the
ninth circuit is already two circuits in one.
Now, is the extraordinarily large size of our court and of
our population a cause for concern? Well, the White Commission,
and before it the Hruska Commission, thought so, and so do I.
As Judge Rhymer explained, any court with more than 11 to 17
judges lacks the ability to render clear, circuit-consistent
and timely decisions. And I, as a member of this court, would
agree with that.
In addition to handling his or her own share of the 9,000
appeals filed last year, each judge is faced with the Sisyphean
task of keeping up with all of us, his colleagues' opinions.
And as Judge Rymer reported in her report, only about half of
the ninth circuit judges read all or most published opinions,
which, frankly, is as embarrassing as it is intolerable.
And furthermore, because of the circuit's geographical
reach, judges must travel on a regular basis from far-away
places throughout the circuit to attend hearings and court
meetings. I am very much relieved that I only have to travel
from Portland to San Francisco in circuit, and I am just in awe
of the fact that my colleague from Fairbanks, AK, has to make
that trip as often as I do. It is tough enough for me when the
flight is only less than 2 hours. But if you are coming all of
the way from Fairbanks on a regular basis, that is probably one
day each direction. Much of this time and expense could be
avoided if the divisional restructuring plan or an outright
circuit split were implemented.
At 52 million people and counting, we are faced with a
fundamental choice: Either do nothing and let the court of
appeals become more unwieldy, or restructure the circuit into
more manageable regional entities. The White Commission
recognized that the first option is not responsible, and the
latter option is inevitable. And I agree.
But on this point, my chief judge and I appear to disagree,
although with the greatest respect. In his report vigorously
opposing reform, my chief emphasizes that the White Commission
recommended that the ninth circuit not be split.
Well, with respect, this misses the point, and frankly
obfuscates the real defects of the Court of Appeals. Rather,
the Commission's principal findings are:
No. 1, that a Federal appellate court cannot function
effectively with more than 11 to 17 judges;
No. 2, that the consistent, predictable and coherent
development of the law over time is best fostered in a
decisionmaking unit smaller than what we have;
No. 3, that a disproportionately large proportion of
lawyers practicing before the circuit deemed the lack of
consistency in the case law to be a grave or large problem;
No. 4, that the outcome of cases is more difficult to
predict in the ninth circuit than in other circuits; and
No. 5, that our limited en banc process has not worked
effectively.
Those are the principal recommendations of the Commission
report. The Commission's main finding was that the Ninth
Circuit Court of Appeals--and I am glad Judge Rymer emphasized
that point. We are not saying that the circuit is not operating
effectively, but the court of appeals has its limitations, and
the result being that the Commission is not saying that
creating new circuits is inherently bad.
My chief also characterizes the fact that the chief judges
of eight other circuits have expressed opposition to the
Commission's divisional restructuring plan as evidence of
strong disapproval of restructuring among the Federal
judiciary. Again, however, with respect, my brother, misreads
the actual details. What these chief judges are opposed to is
the creation of intracircuit divisions with respect to the heir
own circuits, none of whom have our problems. And, frankly,
they are right.
As a judge on the ninth circuit, I must also take issue
with my colleague's assertion that an overwhelming majority of
ninth circuit judges oppose reform. A large proportion of judge
in our court; that is, yet a minority, do favor restructuring,
many strongly so.
As Judge Rymer reported and as my chief has indicated in
his testimony today, one-third of our judges have said so in a
Commission survey. And with respect to that court meeting on
January 21, I will leave it up to my chief to decide if he may
wish to make public the minutes which would disclose the exact
vote tally and the identity of those voting and the specific
questions that were presented.
In any event, I am authorized to tender the letter which
you find at exhibit B, bearing today's date, which is written
on behalf of six of us, including a Californian, who are
willing to go public in support of reorganization. Now, since
sending that letter to the printer so I could make your
deadline for submitting the testimony, I made a few telephone
calls, and I can now represent for the record that three more
California members of my court wish to be shown as joining in
that letter; Judge Rymer, of course, Judge Hall of Pasadena,
and Judge Fernandez of San Bernadino.
And I have reason to believe there are many ninth circuit
judges, including other Californians, who, if given the
opportunity, would vote today for an outright split-off of the
five Northwest States into their own circuit.
And while I am at it, many district trial court judges
agree that this is also necessary. After denying that anything
is wrong, our official court position straddles the fence by
arguing that we can alleviate any problem simply by making
changes at the margin. In response to the Commission report,
our chief has appointed an Evaluation Committee, which has
since suggested various quick fixes. But I must respectfully
disagree, once again, that any problems with our court can be
solved by tinkering at the edges. The time has come when
cosmetic changes will no longer suffice and a significant
restructuring is necessary.
As you may recall, Mr. Chairman, from my testimony before
the full committee, and I remember that Senator Feinstein was
an active participant back in September 1995, I have become a
public proponent of the Hruska Commission's recommended
structuring plan, but after starting out upon my appointment to
this court in 1986 opposed to any change whatsoever.
And as Senator Hatfield and Senator Gorton would recall, I
refused to support their efforts throughout the eighties to
split the court because they appeared to be motivated by
dissatisfaction with some environmental law decisions of our
court.
Mr. Chairman, we have moved past those inappropriate
concerns. The more I consider the issue from the judicial
administration perspective today, the more I appreciate the
benefits of the White Commission's restructuring proposal. Not
only will the creation of smaller judicial decisionmaking units
in the form of divisions promote consistency, predictability
and improved decisionmaking, these divisions will be more
connected to the various regions involved.
Now, I am not here to defend S. 253 in minute detail, but I
do urge the committee to give serious consideration to doing
something to address the problems, which not only I have
outlined, but the Commission report outlines, and frankly, all
of the witnesses so far have indicated there are problems. And
I presume that is the basis upon which Senator Feinstein wishes
to offer some legislation to address a perception of problems.
If we go with the Commission's plan, of course, we can make
adjustments to the divisional structure to cope with political
realities; for example, placing California in its own division
and making other adjustments, if that is what it takes, to make
the legislation acceptable.
But in the event that Congress receives too much resistance
to the Commission's divisional approach, then it should
specifically consider an outright split along the lines of the
three alternative reorganization plans. They are listed as A,
B, C in the report. All three are meritorious.
Finally, Mr. Chairman, please do not be deterred by
nitpicking criticisms of the Commission's proposal. Men and
women of good will can fashion modifications to the plan to
satisfy the greatest number. The ninth circuit's problems are
not going to go away, and they will only get worse. We have
been engaged in gorilla warfare on this circuit split issue for
much too long. You must force us to restructure now one way or
another so that we can end the distractions caused by this
neverending controversy and get back to doing the job of
judging, which is why the President appointed us, and you
confirmed us.
Thank you, Mr. Chairman, for allowing me to make these
remarks. I would be happy to accept any questions that you wish
to ask.
Thank you.
[The prepared statement of Judge O'Scannlain follows:]
Prepared Statement of Diarmuid F. O'Scannlain
executive summary
The strains from the size and ever-increasing caseload of the Ninth
Circuit present us with a fundamental choice: do nothing and let the
circuit become even more unwieldy, or restructure the circuit into more
manageable regional entities. The White Commission, recognizing the
need for smaller decisional units to promote consistency and
predictability in adjudication, concluded that the first option is not
feasible and that the latter option is inevitable. I agree. The
Commission was prescient in its recognition of the Ninth Circuit's
problems, and its creative recommendations, now in the form of S. 253,
deserve careful consideration.
The natural evolution of the federal appellate court system entails
the restructuring of circuits in response to changes in population and
workload. As courts grow too big, they are restructured into more
manageable judicial units. No circuit has a God-given right to an
exemption from inevitable restructuring. The only legitimate
consideration is the optimal size and structure for judges to perform
their duties. Although it has been suggested that we can fix the
problems plaguing the Ninth Circuit by tinkering at the edges, I agree
with the Commission's implicit finding that a more significant overhaul
is needed. I commend the Commission's divisional restructuring
approach. With fewer judges in each division, collegiality of
adjudication within divisions will rise, and consistency of law will be
improved.
The same phenomena that counsels for the divisional restructuring
approach also counsels for a split. I think that we should implement S.
253, which is a step in the right direction. If it does not work or if
the obstructionists prevent the passage of S. 253, however, then there
should be an outright split of the circuit, which is probably
inevitable anyway. Most of all, we should end the guerilla warfare and
let us get back to judging.
Good morning, Chairman Grassley and Members of the Subcommittee. My
name is Diarmuid O'Scannlain, and I am a judge on the United States
Court of Appeals for the Ninth Circuit with chambers in the Pioneer
Courthouse in Portland, Oregon. Thank you for inviting me to appear
before you today to discuss the future of the Ninth Circuit, an issue
of great significance to the federal judiciary as a whole.
i
Having served as a federal appellate judge for over a dozen years
on what has long been the largest court of appeals \1\ in the federal
system and having written repeatedly on issues of judicial
administration,\2\ welcome the chance to offer my perspectives as a
member of the court in this never-ending saga of ``what to do about
that judicial monster,'' the Ninth Circuit. I have heard my colleague
Judge Rymer's persuasive presentation, and I have read the Commission's
report and most of its accumulated testimony. I support the
Commission's findings and am in general agreement with Judge Rymer's
comments, but I will emphasize certain points in particular. But this
judicial epic which has been going on since at least World War II must
be brought to closure, and decisively. S. 253 is the most carefully
crafted legislative solution thus far and should be the vehicle to
resolve the Ninth Circuit's future once and for all. Your choice is
either to implement S. 253, probably with some adjustments in details,
or to order an outright split. Congress can no longer afford to
luxuriate in passivity over the future of this lumbering judicial
entity.
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\1\ I have previously served as Administrative Judge for the
Northern Unit of our court and two terms as a member of our court's
Executive Committee.
\2\ See Statement of Diarmuid F. O'Scannlain, Hearing Before the
Committee on the Judiciary, United States Senate, S. Hrg. 104-810, at
69-77 (Sept. 13, 1995); Diarmuid F. O'Scannlain, A Ninth Circuit Split
Commission: Now What?, 57 Montana L. Rev. 313 (1996); Diarmuid F.
O'Scannlain, A Ninth Circuit Split is Inevitable, But Not Imminent, 56
Ohio St. L.J. 947 (1995).
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When the circuit courts of appeals were created over one hundred
years ago by the Evarts Act of 1891, there were only nine regional
circuits. Today, there are twelve. For a long time, each court of
appeals had at most three judges each; indeed, the First Circuit was
still a three-judge court when I was still in law school. Over time,
courts grew to six, seven, seventeen, and eventually, to a high of
twenty-eight judges for my court. The District of Columbia Circuit can
trace its origin as a separate circuit to a few years after the Evarts
Act was passed.\3\ The Tenth Circuit was split off from the Eighth in
1929. The Eleventh Circuit was split off from the Fifth Circuit in
1981.\4\ And, in due course, I have absolutely no doubt, either the
Ninth Circuit will be restructured along the lines of S. 253 or a new
Twelfth Circuit will be created out of the Ninth.
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\3\ The original name of this court was the Court of Appeals for
the District of Columbia. In 1934, this court was renamed the United
States Court of Appeals for the District of Columbia.
\4\ This is not to mention the Federal Circuit, which was created
in 1982.
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And there is nothing sinister, immoral, fattening, or
unconstitutional about the restructuring of circuits. This is simply
the natural evolution of the federal appellate court structure
responding to population changes. As courts grow too big, they are
restructured into more manageable judicial units. No circuit, not even
mine, has a God-given right to an exemption from the laws of nature.
There is nothing sacred about the Ninth Circuit's keeping essentially
the same boundaries since 1855. The only legitimate consideration is
the optimal size and structure for judges to perform their duties. We
certainly have no vested interest in retaining a structure that may not
function effectively, and Congress has a responsibility through its
oversight to prod the judiciary to keep up with the changing times.
The White Commission was prescient in its recognition of the Ninth
Circuit's problems, and its creative recommendations, now in the form
of S. 253, deserve careful consideration and sensible adjustments
towards the ideal. Judge Rymer has well articulated the real problems
and a sound solution which will either be the model for all large
circuits or an interim step toward eventual split into two or three
circuits. Frankly, I am mystified by the relentless refusal of some of
my colleagues to contemplate the inevitable; as loyal as I am to my own
circuit, I cannot oppose the logical evolution of our judicial
structure as we grow to colossus size.
The problem with the Ninth Circuit can be stated quite simply: we
are too big now, and getting bigger every day. This is so whether you
measure size in terms of number of judges, caseload, or population.
Even though we are officially allocated 28 judges, we currently have 21
active judges and 19 senior judges. In other words, regardless of our
allocation, there are forty judges on the Ninth Circuit today. And when
the seven existing vacancies are filled, we will have 47 judges.\5\ I
have compiled a roster of Ninth Circuit judges in Exhibit A, which you
may find quite revealing. To put the figure of 47 in perspective,
consider the fact that this is almost double the number of total
judgeships as the next largest circuit (the Sixth Circuit) and more
than quadruple that of the smallest (the First Circuit).\6\ The
exceptional size of the Ninth Circuit is illustrated in Charts 1 and 2.
With every additional judge that takes senior status, we grow even
larger. Indeed, if we get the five new judgeships that Judge Rymer
mentioned we have asked for, there will be 52 judges on the circuit,
while the average size of all other circuits today is 14 active
judges.\7\
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\5\ See Exhibit A; Table 1. With the exception of three judges--one
of whom is no longer accepting calendar assignments, one of whom is
recuperating from cancer surgery, and one who is temporarily sitting
only on screening calendars, all of our senior judges carry a
substantial load ranging from 100 percent to 25 percent of a regular
active judge's load.
\6\ See Table 2; Chart 2.
\7\ If senior judges on other circuits are factored in, the average
is 21 total judges per circuit.
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Table 3 and Chart 3 give a sense of the enormity of the Ninth
Circuit's caseload and population relative to other circuit. Last year,
we handled 9,070 appeals--over double the average (4,484) and almost
1,000 more than the next busiest court (the Fifth Circuit).\8\ Looking
at population, the Ninth Circuit's nine states and two territories,
which range from the Rocky Mountains to the Sea of Japan and from the
Mexican Border to the Arctic Circle, contain over 52 million people, or
21 million more than the next largest circuit (the Fifth).\9\
Tellingly, the Ninth Circuit has double the average number of
judgeships (28 vs. 14), handles double the average number of appeals
(9,070 vs. 4,484), and has double the average population (52 million
vs. 23 million).\10\ In essence, the Ninth Circuit already is two
circuits in one.
---------------------------------------------------------------------------
\8\ See Table 3. There may be slight variations in terms of the
summary statistics reported here and those reported elsewhere as a
result of differences in sources. I use caseload statistics provided by
the Administrative Office of the United States Courts in a report
entitled Judicial Business of the United States Courts: Annual Report
of the Director and population statistics compiled by the United States
Census Bureau.
\9\ See Table 3.
\10\ See Tables 2 and 3.
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Is the extraordinarily large size of the Ninth Circuit a cause for
concern? The Commission thought so. And so do I. After careful
analysis, the Commission concluded that any court with more than eleven
to seventeen judges lacks the ability to render clear, circuit-
consistent, and timely decisions. I agree that a court with as many
judges as the Ninth cannot continue to function well. Courts of appeals
have two principal functions: correcting errors on appeal and declaring
the law of the circuit. Having more judges helps us keep up with our
error-correcting duties, but, as Judge Rymer has outlined, it hampers
our law-declaring role by making it more difficult to render clear and
consistent decisions.
The White Commission found that what an appellate court needs for
consistency and predictability in adjudication--values fundamental to
the effective administration of justice--is small decision-making
units. Consistency of law in the appellate context requires an
environment in which a reasonably small body of judges has the
opportunity to sit together frequently. Such interaction enhances
understanding of one another's reasoning and decreases the possibility
of misinformation and misunderstandings. Because the Ninth Circuit has
so many judges, the frequency with which any pair of judges hears cases
together is quite low, thus making it difficult to establish effective
working relationships in developing the law.
In addition, as several Supreme Court Justices have commented, the
risk of intracircuit conflicts is heightened in a court which publishes
as many opinions as the Ninth.\11\ In addition to handling his or her
own share of the 9,000 appeals filed last year, each judge is faced
with the Sisyphean task of keeping up with all his colleagues'
opinions. Frankly, we are losing the ability to keep track of our own
precedents. As Judge Rymer reported, only about half the Ninth Circuit
judges read all or most published opinions, which is as embarrassing as
it is intolerable. It is imperative that judges read opinions as they
are published, since this is the only way to stay abreast of circuit
developments as well as to ensure that no intra-circuit conflicts
develop and that, when they do (which, alas, is inevitable as we
continue to grow), they be reconsidered en banc. This task is too
important to delegate to staff attorneys.
---------------------------------------------------------------------------
\11\ See Commission on Structural Alternatives for the Federal
Courts of Appeals, Final Report 38 (Dec. 18, 1998) [hereafter ``White
Commission Report''].
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As consistency of law falters, predictability erodes as well. The
Commission pointed out that a disproportionately large number of
lawyers indicated that the difficulty of discerning circuit law due to
conflicting precedents was a ``large'' or ``grave'' problem in the
Ninth Circuit. From my own experience since 1986, I can tell you that
this problem has worsened notably as the court has grown in size.
Predictability is difficult enough with 28 active judgeships. But this
figure understates the problem because it does not count either the
senior judges who participate in the court's work (most very actively)
or the large numbers of visiting district and out-of-circuit judges who
are not counted in our present 40-judge roster.
The White Commission recommended a restructuring of the circuit in
part because of its finding that the circuit's en banc process is not
working correctly. As a member of the court, I can tell you that,
although the en banc process, in theory, promotes consistency in
adjudication by resolving intra-circuit conflicts once and for all,
this has not been the case in the Ninth Circuit. All courts of appeals
other than the Ninth Circuit convene en banc panels consisting of all
active judges. The Ninth, however, uses limited en banc panels
comprised of eleven of the twenty-eight active judgeships. This limited
en banc system appears to work less well than other circuits' en banc
systems; because each en banc panel contains fewer than half of the
circuit's judges and consists of a different set of judges, en banc
decisions do not incorporate the views of all judges and thus may not
be as effective in settling conflicts or promoting consistency.
Relatedly, several Supreme Court Justices have commented that the Ninth
Circuit fails to hear cases en banc often enough to settle intra-
circuit conflicts or to correct wrongly decided opinions.\12\
---------------------------------------------------------------------------
\12\ See Letter from Justice Sandra Day O'Connor to Justice Byron
R. White, Chair, Commission on Structural Alternatives for the Federal
Court of Appeals 2 (June 23, 1998); Letter from Justice Anthony M.
Kennedy to Justice Byron R. White, Chair, Commission on Structural
Alternatives for the Federal Court of Appeals 3 (August 17, 1998).
---------------------------------------------------------------------------
The Ninth Circuit's problems do not just hinder judicial decision-
making, but also create administrative difficulties and waste. Because
of the circuit's geographical expansiveness, judges must travel, on a
regular basis, from faraway places throughout the circuit to attend
court meetings and hearings. For example, in order to hear cases, my
colleague Judge Kleinfeld must, many times a year, fly from Fairbanks,
Alaska to distant cities including San Francisco and Pasadena. In
addition, he must travel on a quarterly basis to attend court meetings
generally held in San Francisco. Obviously, all this travel entails not
only time, but a considerable amount of cost. Either the divisional
restructuring plan or an outright circuit split would do much to
curtail this extensive travel and expense.
ii
At 52 million people and counting, we are faced with a fundamental
choice: either do nothing and let the circuit become even more
unwieldy, or restructure the circuit into more manageable regional
entities. The White Commission recognized that the first option is not
feasible, and the latter option is inevitable. I agree. However, some
say: If it ain't broke, don't fix it. This is the position of our Chief
Judge of the Ninth Circuit, who has circulated a report vigorously
opposing any restructuring of the circuit.
In his report, Chief Judge Hug emphasizes that the White Commission
recommended that the Ninth Circuit not be split. With respect, this
misses the point and obfuscates the real defects of the court of
appeals. Rather, the Commission's principal findings are:
1. That a federal appellate court cannot function effectively with
more than eleven to seventeen judges;
2. That decision-making collegiality and the consistent, predictable,
and coherent development of the law over time is best fostered in a
decision-making unit smaller than what we now have;
3. That a disproportionately large proportion of lawyers practicing
before the Ninth Circuit deemed the lack of consistency in the case
law to be a ``grave'' or ``large'' problem;
4. That the outcome of cases is more difficult to predict in the
Ninth Circuit than in other circuits; and
5. That our limited en banc process has not worked effectively. In
light of these many problems--and notwithstanding the Ninth
Circuit's longstanding official position that everything is working
just fine--the White Commission unequivocally recommended a
substantial restructuring of the circuit's adjudicative operations.
The Commission's main finding was that the Ninth Circuit Court of
Appeals is not functioning effectively, not that creating divisions
is better than creating new circuits. The Report's principal
finding relates to the Court of Appeals's adjudicative functions
which can only be cured by smaller decision-making units.
Chief Judge Hug reports that there is strong opposition to
restructuring among the federal judiciary. Specifically, he
characterizes the fact that the chief judges of eight other circuits
have expressed opposition to the Commission's divisional restructuring
plan as evidence of their opposition to reforming the circuit. Again,
however, with respect, Chief Judge Hug misreads the actual details.
What these chief judges are opposed to is the creation of intra-circuit
divisions with respect to their own circuits, none of whom have our
problems.
As a judge on the Ninth Circuit, I must also take issue with my
chiefs assertion that ``[t]he view that the serious disadvantages of
the restructuring proposal outweigh any possible advantages is shared
by an overwhelming majority of the judges on the Ninth Circuit Court of
Appeals.'' Again, with respect, this is simply untrue. A large
proportion of judges on our circuit favor restructuring, many strongly
so. As Judge Rymer reported, approximately one third of judges said so
in response to a survey by the Commission. In addition, I am authorized
to tender the attached letter (Exhibit B) bearing today's date on
behalf of six Ninth Circuit judges including another Californian who
are willing to ``go public'' in support of reorganization. In my
personal opinion, there are many judges, including Californians, who,
if given the opportunity, would vote for an outright split off of the
Northern Division into its own circuit. We had a court meeting on
January 21 in which an actual vote on the White Commission Report was
taken, and I leave it to my chief to decide if he wishes to disclose
the exact vote tally and identities of those voting. Suffice it to say
that nothing has transpired since the actual survey which would lead me
to doubt that the roughly one-third/two-thirds alignment with respect
to the Commission's findings is still accurate. As a final comment on
this point, I would note that conspicuously absent from Chief Judge
Hug's report is the fact that, of the five Supreme Court Justices who
commented on the Ninth Circuit in letters to the Commission, ``all were
of the opinion that it is time for a change.'' \13\ The Commission
itself reported that, ``[i]n general, the Justices expressed concern
about the ability of judges on the Ninth Circuit Court of Appeals to
keep abreast of the court's jurisprudence and about the risk of
intracircuit conflicts in a court with an output as large of that
court's.'' \14\
---------------------------------------------------------------------------
\13\ White Commission Report at 38.
\14\ Id.
---------------------------------------------------------------------------
After denying that anything is wrong, our official court position
straddles the fence by arguing that we can alleviate any problems
simply by making changes at the margin. In response to the Commission
Report, the Chief Judge appointed an Evaluation Committee, which has
since suggested various quick fixes. I must respectfully disagree that
any problems with our circuit can be solved by tinkering at the edges.
The time has come when cosmetic changes will no longer suffice and a
significant restructuring is necessary. I am not, however, saying that
our circuit as a whole is already broke. I would emphasize that Chief
Judge Hug and the Clerk of the Court are presently doing a marvelous
job of administering this fifteen-court circuit as a whole, but my
instant focus is on where we go from here. If the Ninth Circuit Court
of Appeals is not yet broke, it's certainly on the verge.
iii
How, then, should the Ninth Circuit be restructured? Frankly, I
think that the toughest issue facing the long-term planner is what to
do with California, which is, in itself, larger than any existing
multi-state circuit in terms of population. What are the options? One
option is to make California a circuit by itself. A second is to align
it with other states. A third is to place California within two or more
circuits or divisions. I would like to emphasize what is perhaps the
most significant of the White Commission's well-considered findings
with respect to exactly how the Circuit should be reorganized: that
decisions of the district courts within the same state may indeed be
reviewed by different divisions without difficulty. This finding
comports with the conclusion of the Hruska Commission over 25 years
ago, which recommended that two of California's four district courts be
included in a newly created Twelfth Circuit. California now represents
over 60 percent of the total workload of our nine-state and two-
territory circuit.\15\ Whatever Congress decides to do--be it an
outright circuit split or the creation of divisions--it should no
longer be deterred from entertaining the possibility that appeals from
the four districts within California be allocated to different
appellate courts.
---------------------------------------------------------------------------
\15\ See Tables 4, 5.
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Critics argue that placing California within two different
divisions would encourage forum shopping and subject Californians to
diverging lines of federal authority. I specifically agree with Judge
Rymer and the White Commission that the potential for forum shopping
would increase only marginally because California litigants already can
choose in which district to file and because any ``division conflicts''
could be quickly and expeditiously resolved. Like Judge Rymer, I was
struck by the comments of Justice Stevens, Justice Scalia, and Justice
Kennedy that the consequences of splitting California between two
circuits have been seriously exaggerated.\16\
---------------------------------------------------------------------------
\16\ See Letter from Justice John Paul Stevens to Justice Byron R.
White, Chairman, Commission on Structural Alternatives for the Federal
Court of Appeals 1 (August 24, 1998); Letter from Justice Antonin
Scalia to Justice Byron R. White, Chairman, Commission on Structural
Alternatives for the Federal Court of Appeals 1-2 (August 21, 1998);
Kennedy, supra note 14, at 3.
---------------------------------------------------------------------------
I think that the Commission has crafted a well-considered, detailed
proposal for restructuring the circuit that will help to alleviate many
of the problems that the Commission identified and that I outlined
earlier. I have become a public proponent of the Hruska Commission's
recommended restructuring plan over the last four years after starting
out in 1986 opposed to any change whatsoever. The more I consider the
issue, however, the more I appreciate the benefits of the White
Commission's restructuring alternative. By creating smaller judicial-
decision making units in the form of divisions, the Commission's
proposal will promote consistency in law, predictability, and
collegiality. These divisions will certainly be more connected to the
regions involved. This is exactly what we need. If we go with the
Commission's plan, we can, of course, make adjustments to the
divisional structure as necessary to cope with political realities,
perhaps for example, placing California within its own division and
making other adjustments as necessary.
I am not here to defend S. 253 in minute detail, but I do urge the
Committee to give serious consideration to doing something to address
the many problems I have outlined. The divisional restructuring
embodied in the present bill is most certainly worthy of consideration.
In the event that Congress receives too much resistance to the
divisional approach, in particular, then, as the only other
alternative, it should specifically consider an outright split along
the lines of the the three alternative reorganization plans--Options A,
B, and C--outlined by the Commission on pages 54-57 of the Report.
These are, of course, the ``Variation on the `classical split,''' the
```Classical split' plus realignment of Tenth Circuit to reduce size of
new Ninth,'' and the ``Division of California between two circuits to
reduce size of new Ninth,'' respectively. My personal preference is
Option C, which approximates the reorganization plan recommended by the
Hruska Commission. This plan has a number of concrete benefits,
resulting principally from the fact that it would create an even
sharing of the Ninth Circuit's current caseload.
At the same time, I am also sensitive to political concerns which
may cause delay before putting part of the same state in two separate
circuits for the first time. But this simply counsels in favor of
trying the Commission's divisional approach. Let's give S. 253 a chance
to work first time. But this simply counsels in favor of trying the
Commission's divisional approach. Let's give S. 253 a chance to work
first.
iv
Mr. Chairman, do not be deterred by nit-picking criticism of
details of the Commission's proposal. Men and women of good will can
fashion modifications to the plan to satisfy the greatest number. And
if the obstructionists wear you down, then go ahead and split us--
permanently into two or more circuits as the alternative. The Ninth
Circuit's problems won't go away, they will only get worse.
We've been engaged in guerilla warfare on this circuit split issue
for quite some time now. What we need to do is get back to judging. You
must force us to restructure now, one way or another, so that we can
concentrate on our sworn duties and end the distractions caused by this
long-running controversy.
v
Thank you, Mr. Chairman, for allowing me to appear before you
today. I would be happy to answer any questions you may have.
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Senator Grassley. My former colleague, Judge Wiggins.
STATEMENT OF HON. CHARLES E. WIGGINS
Judge Wiggins. Thank you, Mr. Chairman. I am delighted to
have the opportunity to appear before you in your present
status. You have come a long way since we were colleagues in
the House of Representatives.
Senator Grassley. There are a lot of people in the House
that say coming to the Senate is not very far. [Laughter.]
Judge Wiggins. Well, I commend you, and I am proud of you.
I appear as a senior judge from the ninth circuit. I have
been on the ninth circuit for 15 years; prior to that, I
practiced law for 16 years; and prior to that I served for 12
years in the House of Representatives, a colleague of our
chairman.
I have a problem with my sight. I cannot see any more, and
so I am not going to testify consistent with my submitted
statement. But I urge you to read it and to consider what is
there. I am just going to extemporize for about 5 minutes and
say something that I feel very deeply about.
The ninth circuit is a fine institution. We have an example
of the quality of judges right here at this table, and I am
proud to say that they are colleagues of mine. There is not a
case that is submitted to Judge Andy Kleinfeld, who resides in
Alaska, that originates in Southern California, that I would
not be proud to have him sit on because he would provide
judgment and a fair decision. And I think the other side is
true; that he would not find that I am unqualified to sit on
cases that intimately affect Alaska because I try to be fair as
well.
The whole notion of dividing the circuit has to consider
the present personnel and the fact that they are going to
remain. We have some judges who are characterized as liberals,
some characterized as conservatives, and a great many in the
middle. They are all going to remain deciding cases in the
future, how many divisions, subdivisions we ever make of the
ninth circuit.
The second problem, and maybe the fundamental problem is
size, but it is the fact that population is increasing. The
population of the ninth circuit is increasing about 5 percent a
year, and it is going to continue in the future, whatever the
subdivisions of the circuit may be. One of these days the
Congress is going to have to address that problem. It is a
tough political problem, and I do not want to speak to it now.
The other problem is subject matter jurisdiction. The
circuit has to hear cases that you assign, the Senate and House
of Representatives assign to us. We do not have any choice in
the matter. The selection of judges is a political decision as
well. But the personnel, the subject matter jurisdiction is a
problem that you must one of these days come to grips with. You
could appoint a Commission truly to make revisions in the
subject matter jurisdiction of the circuit courts of appeal,
and you would be doing something constructive. The present
proposal has nothing to add to its constructive result in the
circuit. It is addressing a problem that is not a problem.
I am proud to serve on the circuit. I think my colleagues
up here are fine members of the circuit, and they should be
permitted to decide cases wherever the circuit. We need more
judges, of course. But because we need more judges, we should
not sidetrack the fundamental problem that we have too many
cases. We have 9,000, approximately, arising in the circuit
now; 55,000, approximately, across the country.
The problem that people have addressed here is not confined
to the ninth circuit. We have Senator--a Senator that has a
southern accent. I cannot see him up there. But he may be
affiliated with the fifth circuit. That is presently a problem
that they are up about 17 judges. The eleventh circuit is
presently a problem, and those are the next two areas that are
going to be addressed if you establish the precedent of
subdividing the ninth circuit.
Now, we are doing a good job. We are truly doing a good
job. There is a lot of political interest in subdividing the
circuit, but those are not meritorious, and I urge you,
strongly urge, to leave well enough alone. You should put this
divisive issue behind us. I would recommend that you just file
the White Commission report and take no action with respect to
it.
I served as a member, as you know, on the Hruska
Commission. I am getting to be the last surviving member of the
Hruska Commission. We made some mistakes. We made some mistakes
in dividing California, but we made some fundamental findings
that there is one law existing across the country. It is the
same law in New York City as it is in Fairbanks, AK, and as it
is in Los Angeles. We should not encourage regionalism. That is
fundamentally wrong.
Now, you are a national officer, and I am too, to some
extent. We are applying national law. To the extent that we are
citizens of our State and our interests may be at odds with the
national law, the national law should prevail. This fosters
regionalism, and that is wrong. We are not going to survive as
a court with 40 courts that the magic formula of 17 or 11
mandate.
Now, you have got to study the issue of concentrating in
larger circuits because it is inevitable. The population is
growing up, and the caseload that you have assigned to this is
going up as well. The only answer is larger circuits.
Let me urge you, and I will conclude, that this is a
terribly important subject. It is a national issue, and I urge
you, as national officers, to foster one law for the Nation. It
is the way the Constitution was founded.
Thank you very much, Mr. Chairman.
[The prepared statement of Judge Wiggins follows:]
Prepared Statement of Charles E. Wiggins
summary
The Ninth Circuit operates well with its present structure and
boundaries. The drive to split the circuit is animated by political
concerns, not by a desire to improve the federal appellate courts.
Therefore, I oppose the White Commission's restructuring of the circuit
as well as any other plan that would divide the circuit.
The argument that the circuit is just ``too big'' collapses under
scrutiny. As the White Commission made clear, there is no reason to
believe that the circuit is too large to administer justice fairly and
effectively. In addition, modem technology has shrunk the circuit.
Modem jets cover large distances in minutes or hours. We also can
communicate instantaneously across vast distances, rendering face-to-
face meetings less important. Finally, splitting the circuit would do
little to case the travel burden that remains.
One of the prime factors motivating proponents of a split is
provincialism--the belief that judges from a state should decide cases
that originate in that state. Provincialism is inconsistent with the
purpose of the federal court system, which strives to interpret and
apply national law uniformly. Federal law should not mutate to satisfy
local constituents; federal law is the same nationwide.
Political philosophy is another factor motivating proponents of a
split. This is an illegitimate motive. Tampering with the federal
courts because of the political or judicial philosophies of particular
judges is inconsistent with the separation of powers doctrine and the
independence of the judiciary.
______
My name is Charles Wiggins, and I'm a Senior Judge on the Ninth
Circuit, where I have served for the last fifteen years. Prior to that,
I served twelve years in the House of Representatives. My primary
committee assignment was the Judiciary Committee, where I served for a
number of years as the ranking Republican member on the Courts and
Intellectual Property subcommittee. As a member of the Judiciary
Committee, I was given the privilege of serving on a variety of
important, special commissions; most relevant to this hearing, I served
25 years ago as a member of the Hruska Commission. Thus, I have devoted
a quarter of a century to the careful study of the jurisdiction and
boundaries of the several circuits. Over this time, with the benefit of
subsequent study and experience, I have concluded that some of the
conclusions of the Hruska Commission were erroneous, and I can no
longer support them.
I have concluded, as a result of extensive study of the subject,
that the overall functioning of our appellate system will not be
improved by adding further circuits to the present structure, but that
the problems with the present structure are traceable to the growth in
population and the expansion of subject matter jurisdiction for the
circuits.
Accordingly, we must direct our efforts to narrowing the subject
matter jurisdiction of the circuits, and we should attempt to reduce
the number of circuits, making them larger, not smaller. Therefore, I
oppose the recommendations of the White Commission, as well as any
other proposals that would further subdivide the existing circuits, and
I urge this body to file the White Commission's recommendations without
taking action.
I will not analyze the particular shortcomings of the Commission's
recommendations. Other witnesses will adequately engage in that
analysis. Instead, I am going to undertake an explanation of why this
Commission's recommendations are before you at all. I am satisfied that
there are no cogent reasons to tamper with the physical size of the
Ninth Circuit, except that it is perceived to be in the political
interests of its sponsors.
I. Is the circuit too big?
As a starting point, let me confront the foremost argument for a
Division, namely that the Ninth Circuit is just ``too big.'' Proponents
of a Ninth Circuit split frequently justify their position by asserting
that the circuit is just that--``too big.'' This, of course, begs the
question: too big for what? The key question should be whether the
Ninth Circuit is too large to administer justice fairly and
effectively. The answer to this question is easy--it is not. As the
White Commission proclaimed ``there is no persuasive evidence that the
Ninth Circuit is not working effectively or that creating new circuits
will improve the administration of justice in any circuit or overall.''
The other potential argument is that the Ninth Circuit is ``too
large,'' not because it is unable to carry out its mission, but because
administering justice over such a large territory is burdensome on both
judges and litigants. I disagree with this assessment as well. Over the
past century the circuit has operated effectively despite its massive
boundaries, and, today, the circuit's large territory imposes fewer
hardships on judges and litigants than ever before. We live in a
shrunken world. As technology continues its giant leaps forward, our
old way of looking at large distances becomes increasingly obsolete.
Our judges no longer traverse the circuit's large distances via
horseback. In the early years of this century, travel was a significant
burden. For example, it took about three days to travel from Los
Angeles to San Diego, yet this is a minor distance in comparison to the
circuit as a whole. Likewise, a trip from San Francisco to Sacramento
was itself a journey of a couple of days. But at that time there was,
no outcry against the size of the circuit. Only now, after we have
managed to shrink, practically speaking, the distances that separate
one part of our country from another, do we hear that the circuit is
``too big.'' But this argument cannot coexist with the high technology
world around us. Not only has our modem system of air travel made it
easier to cover large distances, but the importance of travel itself
diminishes as technology advances. Judges in San Diego or Los Angeles
can communicate easily and instantaneously with judges in Boise and
Fairbanks via electronic mail, fax machines, conference calls and
videoconferencing. With time, many of our traditional ways of
conducting court business, relying as they do on face-to-face
communication, will become obsolete.
It is also important to understand that splitting the circuit does
very little to reduce what travel burden remains. Clearly, lawyers and
judges in rural parts of Alaska, Montana or Idaho bear a more
significant travel burden than do judges or lawyers in San Francisco or
Los Angeles. Nevertheless, the travel burden on these parties will
remain significant even after the unveiling of a circuit split. It is
difficult to travel to court meetings or oral arguments from rural
Alaska. But it is only marginally more difficult to travel from rural
Alaska to San Francisco than it is to travel from rural Alaska to
Portland, Oregon. The relatively minor additional travel time is
grossly insufficient to justify a fundamental transformation of the
federal appellate system.
For these reasons, I believe the cry that the circuit is ``too
big'' collapses under close scrutiny.
II. The problem of provincialism
Another primary motive animating many proponents of a split I label
provincialism. This is the belief that Judges from State X should
decide cases from State X. Some of the key proponents of a split argue
that California judges should not be deciding cases from Alaska, or
Montana, or other Northwestern states. Under scrutiny, this argument
shows itself, not only flawed, but even illegitimate. The United States
Court of Appeals is charged primarily with interpreting and applying
national law, not regional law, not state law. There is only one
national law, enacted in D.C., under authority derived from the U.S.
Constitution. The proponents' theory only makes sense if we believe
that judges in Alaska should interpret the Constitution or federal
statutes in an Alaska-friendly manner, and that California judges
should interpret the same law in a California-friendly manner. But this
is not the purpose of the federal judiciary. The U.S. Constitution is
the same in California as it is in Alaska, it's the same in New York as
in Florida. This is equally true of federal statutory law. For example,
Congress did not pass, and the President did not sign, separate
Americans with Disabilities Acts for Alaska and California. Thus,
federal law is the same, region to region, and state to state. The goal
of the federal judiciary is to achieve uniformity in interpretation,
without splintered interpretations designed to favor the local
constituency. National law is not an appropriate forum for regional
experimentation; this is the proper exercise of state law. Where the
Constitution entrusts matters to the federal government, the law
applies to all and should apply uniformly to all. The uniform
application of national law is harmed, not helped, when the courts of
appeals are splintered into smaller adjudicative bodies in order to
tailor their views to local constituencies.
Splitting a circuit to appease regional interests deprives a
circuit of the diversity of background that circuits need in order to
interpret and apply national law in a uniform manner. Proponents of a
Ninth Circuit split often argue that judges from other parts of the
circuit, particularly California, are insufficiently familiar with life
in the Pacific Northwest to decide cases arising in the northwest. I
disagree, first, with the claim that California judges lack sufficient
familiarity with their northern neighbors to adjudicate disputes from
the northern states. It is true that no judge can be intimately
familiar with the culture, background, and lifestyle of every party
that comes before his or her court. Some judges that have an intimate
understanding of logging or fishing in the rugged northwest may be
unfamiliar with the lives of inner-city Los Angelinos. The reverse is
often true as well. But let us remember, federal law is not designed to
appeal to a small segment of the nation, it is written to apply to all
Americans. Thus, we have long recognized that more diversity, not less,
is necessary for a healthy circuit. A political generation ago, the
Hruska Commission was given the task of exploring the state of the
circuit courts, including their boundaries. In laying out the general
principles through which decisions on the circuit courts should be
made, the Hruska Commission articulated a truth that we must not lose
sight of today: provincialism is a danger, not a benefit, to the courts
of appeals. The Hruska Commission warned that we must avoid circuit
courts that ``lack the diversity of background and attitude brought to
a court by judges who have lived and practiced in different states.''
62 F.R.D. 223, 237. The Commission rightly noted that ``such diversity
is a highly desirable, and perhaps essential, condition in the
constitution of the federal courts.'' Id. As the White Commission
report makes clear, this Hruska Commission finding still rings true.
See White Commission Report at 49. The federal appellate courts cannot
cater to local tastes or interests if they are to satisfy their
function of applying a uniform body of law uniformly. That being the
case, the circuit courts should be composed in a way that best
accomplishes that goal, by having judges from different parts of the
country and different backgrounds working together to create truly
national interpretations of our national law.
The key, then, is not to break the circuit courts into small bodies
that cater to local tastes. The key is to ensure that the circuit
courts are comprised of judges that represent the full diversity of the
circuit. The proper question is whether the different regions of the
circuit are adequately represented on the court by judges from the
different regions. I would argue that the present Ninth satisfies this
goal. But if it does not, the remedy is to appoint and confirm judges
that ensure that all regions of the circuit are adequately represented,
the remedy is not to splinter the circuit into smaller bodies that
cannot effectively represent broad viewpoints.
It is also important to remember that the Ninth Circuit is not the
only circuit that is growing rapidly. The Judicial Conference of the
United States projects that the number of filed appeals will multiply
by a factor of seven in the next twenty years. See Lloyd D. George, The
Split of the Ninth Circuit: Is It Really Our Best Option?, 6-Jun Nev.
Law. 5. Thus, to maintain smaller 12-15 judge circuits, while still
maintaining viable caseloads per judge, would require up to 40 circuits
by the year 2020. Id. Maintaining uniformity in the federal law would
be an almost-impossible task with such a large number of circuits.
Thus, it is necessary to readjust our thinking about the federal
circuit courts. The circuit courts of the future, whether we like it or
not, will be large circuits. Our only hope for an effective court of
appeals system lies in finding ways to make large circuits work better;
the answer is not to ignore the clear growth trends and stubbornly
demand the small circuits that are, more and more, becoming a relic of
the past.
Furthermore, smaller circuits cannot allay the concerns expressed
by many proponents of a split. Many split proponents, particularly
those from the Northwest, claim that their states are dominated by
California. Again, I disagree with this assertion. But even if they are
right, splitting the Ninth Circuit sets a bad precedent for those
smaller states that are concerned with the dominance of a larger
neighbor. Splitting the Ninth may remove Alaska from under California's
real or imagined dominance, but only at the expense of those smaller
states left in the Ninth. Whatever states remain tied to California,
most likely Nevada, Arizona, maybe Hawaii, will be more dominated by
California than Alaska or Montana ever were, because the other smaller
states that once comprised the circuit have left, taking their judges
with them. The only answer to large state dominance in the circuits is
larger circuits, where many smaller states can balance one large one.
The Ninth is not the only rapidly growing circuit. Soon Congress
will have to decide whether to divide a number of others. If Congress
is concerned with the dominance of large states, it must set an
important precedent by keeping the Ninth Circuit together. Otherwise,
many other small states may soon find themselves in splintered circuits
of their own, joined with a large and dominant neighbor and without any
other small states that can provide balance to their circuit.
III. Political philosophy
The final motivation behind a circuit split is even more
troublesome than provincialism. There is a perception among many
conservatives that our circuit is a ``liberal'' circuit that is out-of-
touch with the Supreme Court, and the other circuits. I strongly
believe that this characterization is unfair. As one intimately
familiar with the judges on the Ninth Circuit, I can say with
confidence that our circuit is diverse, with a few liberals, a few
conservatives, and many moderates. But however you view the philosophy
of the Ninth, splitting the circuit for political reasons is
illegitimate and would, in any case, be ineffectual in promoting the
political philosophies of its proponents.
Let me first address illegitimacy of a political restructuring of
the circuit. We have long recognized, ever since President Roosevelt's
attempt to pack the Supreme Court with favorable justices, if not
before, that it is illegitimate for the political branches to alter
fundamentally the character of the federal judiciary for political
reasons. The Constitution is clear; the federal judiciary is an
apolitical body, separate and equal to the political branches and
unaccountable to them. Article III serves as a constant reminder that
the federal judiciary cannot be played with to accomplish political
whims, it cannot be punished because of a judge's political views.
Elected officials have come and gone. As the old were replaced by the
new, the prevailing political views on Capitol Hill often changed. Time
has had the same effect on the federal judiciary. As old judicial
personalities were replaced by new judges, prevailing judicial
philosophies have often changed. What has remained constant throughout
the century is the, effectiveness with which the Ninth Circuit has
administered justice. To alter significantly the structure of the
federal judiciary because of disagreements with some judges' political
views cuts to the heart of judicial independence, and fundamentally
strains the separation of powers that animates our Constitution. Under
our constitutional system, it is the interplay between the President
and the Senate that places federal judges on the bench and,
consequently, gives a district, a circuit, or the Supreme Court a
liberal, conservative, or moderate character. These elected officials
must then live with the results of the political process until they can
alter the character of the courts through this political process. Over
the long term, this process serves the country well.
Second, speaking practically, and setting aside the illegitimacy of
restructuring the federal judiciary for political reasons, splitting
the Ninth Circuit because of its perceived ``liberal'' character will
not achieve the goals of its conservative proponents. Splitting the
circuit does not replace ``liberal'' judges with ``conservative''
judges. The same judges will still occupy the appellate bench, and they
will still produce decisions consistent with their judicial views.
Thus, a split for political reasons cannot reduce the number of
``liberal'' decisions, nor can it increase the number of
``conservative'' ones. The theory, then, must be that a split will
create a new circuit with a more conservative bent in the Northwest,
while leaving California to its liberal judges. This theory is
fundamentally flawed. Speaking as one intimately familiar with the
court and its judges, I can say with a great deal of certainty that a
Northwestern circuit will have a character very similar to that of the
Ninth Circuit as it presently stands. There is no Mason-Dixon line in
this circuit. Chopping California off from the Northwest will create
two circuits, but it will not create a conservative circuit and a
liberal circuit.
IV. Conclusion
In conclusion, the White Commission's recommendations, and any
other plan to split the Ninth Circuit, are inherently flawed. First,
because of a rapidly increasing population, the demand for circuit
judges will continue to rise dramatically. If we are to maintain
uniformity in our federal appellate system, the circuit courts of the
future will be large circuits; splintering our appellate system into a
multitude of small circuits can only increase conflict, not uniformity.
Thus, we must search for ways to make large circuits work better,
primarily by reducing the subject matter jurisdiction of the circuit
courts to make case loads more manageable. Second, the reasons given
for a Ninth Circuit split collapse under scrutiny. The circuit is not
``too big.'' Though large, it allows for the fair and effective
administration of justice. And practically speaking, the circuit gets
smaller every day with every technological leap forward. Finally, the
motives animating circuit split proposals are illegitimate.
Provincialism is a misguided motive because it jeopardizes the federal
courts' duty to administer national law uniformly. Likewise, splitting
a circuit because of the political philosophies of some federal judges
threatens the separation of powers upon which our governmental system
is based. I therefore urge the Committee to maintain the circuit's
present structure.
Senator Grassley. Thank you, Judge Wiggins.
Before I call on Judge Browning, who will finish the panel,
I want to say that Assistant Attorney General Acheson also had
another commitment and will be submitting her testimony for the
record. I appreciate her willingness to testify.
[The prepared statement of Ms. Acheson follows:]
Prepared Statement of Eleanor D. Acheson
Good morning. I appreciate the opportunity to appear before the
Subcommittee on Administrative Oversight and the Courts to express the
views of the United States Department of Justice on the final report of
the Commission on Structural Alternatives for the Federal Courts of
Appeals and on S. 253, the Ninth Circuit Reorganization Act. The
Department opposes enactment of S. 253.
introduction
In 1997, Congress created the Commission on Structural Alternatives
for the Federal Courts of Appeals to study, for one year, ``the present
division of the United States into the several judicial circuits'' and
``study the structure and alignment of the Federal Court of Appeals
system, with particular reference to the Ninth Circuit.'' \1\ The five-
member Commission, chaired by retired Supreme Court Justice Byron
White, provided the Justice Department and other interested parties two
opportunities to submit ideas concerning these subjects, once at the
beginning of the Commission's work and again in response to the
Commission's draft report. The Department appreciated the opportunity
to contribute to the Commission's work. A copy of the Department's
official comments to the Commission on Structural Alternatives have
been submitted for the record and are incorporated as part of the
Department's testimony.
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\1\ Sec. 305(a)(1)(B)(i, ii), Pub. L. No. 105-119, 111 Stat. 2491
(1997).
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In its final report, the Commission made recommendations in four
general areas regarding the structural reorganization of the courts of
appeals: First, the Commission specifically rejected the suggestion
that the Ninth Circuit be split, noting that there was ``no persuasive
evidence'' supporting a realignment of the circuit.\2\ Instead, the
Commission recommended that the Ninth Circuit be divided into three
semi-autonomous decisional regions. Under this novel arrangement, none
of these regional divisions would be obligated to follow the others'
precedents and any ``square conflicts'' in their decisions could be
resolved by a Circuit-wide division called the Circuit Division.
Second, the Commission recommended that each other federal Court of
Appeals be granted the statutory authority to divide into regional
divisions and to establish a Circuit Division once its bench reached 15
or more active judges. Third, the Commission urged that the Courts of
Appeals be granted the authority to experiment with appellate panels
consisting of two judges, instead of the three-judge panel that is the
norm. Fourth, the Commission recommended that the Courts of Appeals be
permitted to use panels consisting of two federal District Court judges
and one federal Circuit Court judge when resolving cases that involve
the routine application of well-settled law or that involve certain
subject matter areas. S. 253, the Ninth Circuit Reorganization Act, was
introduced in response to the White Commission's report and
incorporates all four of the Commission's recommendations.
---------------------------------------------------------------------------
\2\ White Commission Final Report (hereafter ``Final Report'') at
29.
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Because S. 253 so closely tracks the White Commission's
recommendations, our written testimony before this Subcommittee draws
from the comments submitted to the Commission by the Department.
general views of the department of justice
The structural reforms contained in S. 253 have serious, far-
reaching implications for the structure and functioning of the federal
courts. The Justice Department approaches these issues from our
perspective as a frequent litigant in the federal system--a participant
in over 40 percent of the cases heard in the federal courts of
appeals--which must reconcile tensions in the results and reasoning of
decisions in order to assess how to proceed in federal investigations
and prosecutions, to give advice to client agencies, and to consider
whether to seek review of decisions adverse to the government.
We begin with the observation that all available means of non-
structural reform should be attempted and assessed before structural
changes are imposed on the federal courts. In our comments to the White
Commission, we expressed the view that structural changes should be
undertaken only if a pervasive and well-documented problem exists, that
problem cannot be addressed within the existing structure, and a
workable solution can be devised whose advantages outweigh its
immediate and potential detriments. Guided by those principles, we
agree with the White Commission's recommendation--and the sponsors of
S. 253--that there is no basis for a split of the Ninth Circuit.\3\ In
our view, the lack of any compelling evidence supporting a circuit
split also counsels against what we view as the principal
recommendation contained in S. 253--the mandated creation of divisions
for the Ninth Circuit and the recommended extension of this proposal to
other large circuits. That proposal would have potentially adverse
repercussions for the administration of justice in the Ninth Circuit,
and ultimately across all federal courts of appeals.
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\3\ Final Report at 29.
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We believe that mechanisms short of a split (divisional or
otherwise) should be tried first--particularly since the provisions in
S. 253 would likely exacerbate, rather than ameliorate, the main
problem we perceive: the Ninth Circuit should employ adequate
mechanisms to review and reconcile panel decisions that conflict or are
in tension with one another, or that require correction by the court as
a whole. Therefore, before recommendations such as those contained in
S. 253 are enacted, we urge the adoption of the non-structural reforms
suggested in this testimony and our earlier submissions to the White
Commission.
In this vein, we note and applaud the Ninth Circuit's current
efforts to evaluate its own processes to determine how it can enhance
more consistent decision-making and reduce docket backlog. We
understand that the Chief Judge recently created a Ninth Circuit
Evaluation Committee to consider these issues, solicit public comment,
and make recommendations to the Court. We believe that the Circuit
should be afforded an opportunity to consider and implement changes
proposed as a result of these processes before Congress acts.
We now provide our views on S. 253.
section 2: regional division of the 9th circuit
Section 2 of S. 253 would divide the Ninth Circuit into Northern,
Middle and Southern Divisions, with California split between the Middle
and Southern Divisions. Between seven and eleven active judges would
serve in each division, with the presiding judge of each division
chosen in the manner that currently exists for the selection of a
circuit's chief judge. A majority of judges serving on each division
would be residents of the districts over which that division has
jurisdiction, but each division would also include some judges not
residing within the division, assigned randomly or by lot for terms of
at least three years. Judges from each division would hear appeals
arising from district courts within the division's geographic
boundaries. Each division would use an en banc procedure to rehear
cases from within the division. One division's decisions, whether panel
or en banc, would not ``be regarded as binding precedents in the other
regional divisions.'' \4\ Finally, a non-regional ``Circuit Division''
consisting of thirteen judges would be formed. The Circuit Division
panel would include the Chief Judge of the Circuit, plus four randomly
selected judges from each of the three regional divisions. The 13-judge
Circuit Division would have discretionary jurisdiction to review ``any
final decision rendered in any of the court's divisions that conflicts
on an issue of law with a decision in another division,'' but only
after a panel decision had been reviewed by the division en banc or had
been denied divisional en banc review.\5\ The Circuit Division would
not have the jurisdiction to review decisions for error, decisions that
conflict with another circuit's decision, or decisions involving issues
of exceptional importance.
---------------------------------------------------------------------------
\4\ Sec. 2(b)(5).
\5\ Sec. 2(c)(2).
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In our view, this proposal is not likely to significantly advance,
and instead is likely to detract from, the goals the Ninth Circuit
Court of Appeals strives to achieve--consistency of decisions,
efficiency in resolving cases, and the appearance that all of its
decisions reflect the views of the Court as a whole. Indeed, section 2
of S. 253 is likely to create greater confusion in Ninth Circuit law,
further delay the resolution of appeals, and undermine the
representativeness (and thus, the legitimacy) of the Court's decision-
making process. We outline our specific concerns below.
uniformity and consistency of decisions
A basic tenet of American jurisprudence is that federal law should
be applied as uniformly as possible within and across circuits.
National uniformity and predictability are particularly important to
the Department of Justice, which must enforce federal law and advise
federal agencies about the meaning of that law throughout the country.
The Department also plays a special role in the process of unifying the
meaning of federal law: as the most frequent litigant in the federal
courts, the Department, through the Solicitor General, exercises
considerable restraint in choosing which cases the United States brings
to the courts of appeals.
It is of paramount importance that federal law be interpreted
consistently regardless of the location of the court or the composition
of the judicial panel. Rather than reduce the amount of intra- and
inter-circuit conflicts created by Ninth Circuit decisions, we believe
that S. 253's divisional structure would effectively validate, and even
encourage, the development of such conflicts. Indeed, S. 253 is
explicit that ``the decisions of 1 regional division shall not be
regarded as binding precedents in the other regional divisions.'' \6\
---------------------------------------------------------------------------
\6\ Sec. 2(b)(5).
---------------------------------------------------------------------------
S. 253 purports to delineate a way of resolving conflicts among
divisions through the mechanism of a ``Circuit Division.'' The Circuit
Division's only role, however, would be to resolve ``conflicts on * * *
issue[s] of law'' between the regional divisions. It is unclear from
the legislation what a ``conflict'' is and how a conflict is different
from the existence of other decisions that are difficult to reconcile
but which nonetheless point the law in different directions. Often, the
creation of a conflict is not clear, much less immediately clear. And
because the decisions of other divisions are not binding precedents,
judges would be less likely to distinguish, discuss, or even cite
decisions from outside their division. Overall, the Circuit Division
mechanism, as proposed, does not provide an effective mechanism for the
resolution of the many intra-circuit inconsistencies that the semi-
autonomous division system would produce.
The inability of the Circuit Division to review cases not involving
inter-divisional conflicts on issues of law may have a further
pernicious effect--insulating many decisions from Supreme Court review.
The Circuit Division's narrow jurisdictional mandate would effectively
preclude Circuit-wide review of matters of exceptional importance,
cases that conflict with decisions of other circuits, and cases in
which the intra-circuit disagreement is significant but does not rise
to the level of a ``conflict.'' Such cases would be decided solely at
the divisional level, and those decisions would not be binding circuit-
wide. That structure would inevitably multiply the number of decisions
within the Ninth Circuit that conflict with decisions of other
circuits, while simultaneously creating a possible impediment to
Supreme Court review. It is uncertain whether Supreme Court Justices
would vote to grant certiorari in cases that present conflicts between
only one division of the Ninth Circuit (rather than the Circuit as
whole) and another circuit. The discretionary nature of certiorari
jurisdiction suggests that parties opposing review will argue that the
Supreme Court should give the Ninth Circuit as a whole an opportunity
to overturn a divisional decision so as to bring the division into
harmony with the other circuit's decision. The proposed divisional
structure therefore might serve to insulate decisions of the Ninth
Circuit from further review, effectively isolating it from the rest of
the federal court system.\7\
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\7\ That concern is not theoretical. In the area of criminal law,
the Supreme Court in recent Terms has reversed decisions of the Ninth
Circuit in which that Circuit alone has held the particular view of the
issue presented and been in conflict with every other circuit to have
considered that issue. See United States v. Ramirez, 118 S.Ct. 992
(1998), rev'g, 91 F.3d 1297 (9th Cir. 1996); United States v. Hyde, 520
U.S. 670 (1997), rev'g, 92 F.3d 779 (9th Cir. 1996); United States v.
Watts, 519 U.S. 148 (1997), rev'g, 78 F.3d 1386 (9th Cir. 1996) and 67
F.3d 790 (9th Cir. 1995); United States v. Armstrong, 517 U.S. 456
(1996), rev'g, 48 F.3d 1508 (9th Cir. 1995) (en banc); United States v.
Mezzanato, 513 U.S. 196 (1995), rev'g, 998 F.2d 1452 (9th Cir. 1993);
United States v. Shabani, 513 U.S. 10 (1994), rev'g, 993 F.2d 1419 (9th
Cir. 1993); United States v. X-Citement Video, 513 U.S. 64 (1994),
rev'g, 982 F.2d 1285 (9th Cir. 1992); United States v. Padilla, 508
U.S. 77 (1993), rev'g, 960 F.2d 854 (9th Cir. 1992); see also
Almendarez-Torres v. United States, 118 S.Ct. 1219 (1998) (overruling
United States v. Gonzalez-Medina, 976 F.2d 570 (9th Cir. 1992)); Neal
v. United States, 516 U.S. 284 (1996) (overruling United States v.
Muschik, 49 F.3d 512 (9th Cir. 1995)). A process that insulated from
Supreme Court review those types of erroneous division panel decisions
that conflicted with other circuit decisions would be unfortunate. In
our view, rather than creating a structure that might insulate such
decisions from Supreme Court review, the Ninth Circuit should employ a
more vigorous en banc procedure to address those types of conflicts and
erroneous decisions.
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The probability that S. 253's divisional structure could spawn
greater inconsistency in Circuit law would be particularly problematic
in California. Under S. 253, the State of California would be split
between the Middle and Southern Divisions of the Ninth Circuit, neither
of which would be required to follow the precedent of the other. We do
not support dividing any State in this manner, because, as much as
possible, federal rights and responsibilities should be the same for
all citizens within a State. Splitting California between two divisions
that are not bound by each other's precedent would yield different
interpretations of federal and state law, and could result in
inconsistent federal court rulings regarding the constitutionality of
the same California law.\8\ For the reasons discussed above, Supreme
Court review and resolution of these inconsistencies might be rare and,
at a minimum, protracted, particularly with the requisite added layer
of Circuit Division (following divisional en banc) review. In addition,
the existence of different divisions within one State could encourage
forum shopping among those seeking to assure a more favorable audience
to adjudicate questions of federal and state law, as well as delays in
the reconciliation of conflicting decisions.\9\
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\8\ We have not had an opportunity to assess completely to what
extent the proposed geographical divisions, including dividing
California, would create the possibility of conflicting jurisprudence
on a range of substantive areas of law of particular interest to the
United States. However, the federal government's unique docket, which
includes issues involving public lands and ecosystem management,
wildlife and marine resource issues, and Native American rights and
interests. Those issues do not neatly fit into, but transcend, the
boundaries of the proposed geographic divisional structure and may be
adversely impacted by any inconsistent interpretation of federal law
that would result from the proposed division of the Ninth Circuit into
geographic divisions.
\9\ Although splitting California between two regional divisions
makes S. 253 all the more objectionable, keeping California in the same
division does not remedy our general concerns that the proposed
restructuring of the Circuit would increase the number of inconsistent
decisions, delay the appellate process, and decrease the
representativeness of the Circuit's decisions. Placing California in
one division would, moreover, implicate several other problems
including, most notably, the size of any division with sufficient
judges to handle California's immense appellate volume (which currently
accounts for 60 percent of the cases within the Ninth Circuit). It is
difficult to see how any ``California division'' that would decide
4,000 or more cases with 18 or more judges would offer significant
advantages in terms of size as compared to the existing Ninth Circuit.
Indeed, such a division would probably have to employ some form of
limited en banc review and would undercut the Circuit Division's
representativeness (at least if its membership was comprised of equal
numbers of judges from each regional division).
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efficient resolution of cases
The interest in achieving an expeditious appellate process is
important for all kinds of cases, but it is particularly acute in two
areas in which the Ninth Circuit has large caseloads: criminal cases,
in which the defendant's liberty, as well as the victim's and public's
interest in finality, are at stake; and immigration cases, in which the
Ninth Circuit currently reviews as much as 50 percent of the nationwide
caseload and in which delay defers a determination of the alien's
status and can encourage new case filings. A swifter and less
cumbersome process in such matters is in the interest of both the
government, which must enforce the law, and the individual, whose
resources typically cannot sustain vigorous multi-tier litigation.
By adding another layer of review, the Ninth Circuit restructuring
contained in S. 253 would delay the completion of the judicial process
for litigants. Following an adverse panel decision, an aggrieved
litigant could seek en banc review by the Division en banc court, as
would now be true of the Circuit as a whole. A denial of such a
petition would, in many cases, precipitate a further request for
rehearing at the Circuit Division level.\10\ The evaluation of a case
for alleged conflicts with a decision of another panel would only add
to what is already a protracted period for finally resolving cases.
---------------------------------------------------------------------------
\10\ Although it is difficult to demonstrate a ``conflict'' between
two or more judicial decisions, our experience opposing petitions for a
writ of certiorari in the Supreme Court suggests that a large number of
litigants nonetheless will try. It seems likely that the Circuit
Division will forgo review in several cases while awaiting for inter-
division conflicts to become sufficiently clear to warrant Circuit
division review and resolution. This may further delay the time for
consistent Circuit precedent to be established.
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The White Commission justified this divisional structure partly on
the grounds that smaller decisional units might increase efficiency by
reducing the volume of precedent judges would be required to consult
and monitor (thereby saving these judges time). We doubt that the
creation of smaller decisional units would save much time or that
Circuit judges will deem it advisable to disregard the development of
law in the other divisions of the Circuit. Because S. 253 contemplates
that a number of judges would be assigned outside their division of
residence for substantial periods of time, it is unlikely that judges
would benefit substantially over the long run by ostensibly being
relieved of the burden of monitoring other divisions' opinions. While
serving outside their division of residence, they would presumably be
expected to keep abreast of the decisions of at least two divisions--
their division of permanent residence and their division of temporary
assignment. And if, over a three-to-five year period, they might be
assigned to all three divisions, that monitoring responsibility would
be hindered by a failure to have kept up with the output of all three
divisions. Whatever benefit might accrue to individual judges with
respect to the burden of monitoring opinions, therefore, is likely to
be only modest and incomplete, at best.
Indeed, the use of smaller decisional units may not only be
ineffective as a means of reducing delay, but may also have undesirable
collateral effects. By creating a smaller pool of judges from which
panels would be selected, litigants would be able to better predict the
identity of a panel's judges. But it is precisely to discourage
litigants from attempting to tailor their arguments for particular
judges that many circuits do not publicly announce the judges on the
panel until shortly before argument. And under the proposed divisional
plan, predictability may encourage forum shopping (especially within
California) or tactics to delay pursuit of an appeal to await either
the periodic change in judicial composition within a division or the
resolution of a pending case raising the same issue in a different
division. A unified circuit avoids those anomalies.\11\
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\11\ Filling existing vacancies on the Circuit, or creating new
judgeships, as S. 1145, the Federal Judgeship Act of 1999, would do,
would be preferable ways to reduce judicial workload and thereby
increase the speed with which appeals are decided.
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appearance of legitimacy
As the Supreme Court has recognized time and again, the authority
of the judicial branch is tied to its legitimacy. One important aspect
of a court's legitimacy is the perception of the public and the bar
that when a judge or a panel of judges speak, they speak for the entire
court of which they are members. More to the point, the views of a
panel of judges on the Court of Appeals should represent the views of
the entire Circuit Court. In all other Circuits but the Ninth, this is
always the case because all of the judges on the Circuit have either
implicitly approved of the decisions of the three-judge panels (by
opting not to rehear the case en banc) or have reheard the case en banc
with all of the non-recused, active judges on the Circuit
participating. The Ninth Circuit, however, employs a limited en banc
procedure under which the Circuit's en banc panel is comprised of 11
judges--the Chief Judge and 10 other judges selected at random. As a
result, the Ninth Circuit's en banc; panel involves fewer than a
majority of the Circuit's 28 active judgeships. Thus, the Ninth Circuit
has been criticized on the ground that its en banc decisions are not
representative of even a majority of the judges on its court.
Instead of making the court more representative, S. 253 is likely
to reduce the representativeness of the Ninth Circuit's decisions. Once
a three-judge panel issues an opinion, each regional division would
have the opportunity to rehear the case en banc. This en banc process
would involve every active judge on the regional court. However, given
that the divisional court would consist of only 7 to 11 judges, at
least two of whom joined the majority decision being challenged, a
litigant would likely face an uphill battle in obtaining divisional en
banc review. In those rare instances where en banc review were granted,
the decisions issued within any regional division would be
representative of the views of the judges in that region. This
representativeness at the regional division level does not reach the
Circuit level, however. At the Circuit level, S. 253 would create the
Circuit Division to replace the limited en banc structure currently
employed by the Ninth Circuit. While the Circuit Division is slightly
more representative than the limited en banc because it increases the
number of judges from 11 to 13, the 13 Circuit Division judges still do
not consistent a majority of the 28 judges on the Ninth Circuit and are
not selected randomly for each en banc; case (they are instead assigned
by lot for three year terms). The Circuit Division would only operate
where there is a ``conflict'' on a legal issue, however. In every other
case, the decision of the regional en banc court (of 7 to 11 judges)
would be the final word of the 28-judge Circuit. As a result, S. 253
would appear to undermine the representativeness, and hence the
legitimacy, of the Ninth Circuit's decisions.
* * * * *
Our serious reservations about implementing S. 253 are magnified by
the recognition that the move to any divisional structure would likely
be irreversible.\12\ Once regional divisions are created--and
differences in divisional law are permitted to flourish--the Ninth
Circuit would have little ability to reunify. Instead, the
restructuring compelled by S. 253 would lead in only one direction--to
an eventual split of the Circuit. But this result is precisely what the
White Commission found to be unwarranted and unworkable. Rather than
proceed down this inevitable path to split of a Circuit viewed by its
users (and its evaluators) as operating reasonably well, we
respectfully suggest that Congress should instead, at least as a first
effort, direct the Ninth Circuit to study and implement constructive
changes in relation to the specific areas of concern identified by the
White Commission and the Department.
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\12\ Creating regional divisions on an experimental basis would,
for the reasons described in the text, be equally irreversible. Thus, a
``sunset'' provision would not remedy our concerns.
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alternatives to divisional re-structuring
From our perspective as litigants, the Ninth Circuit's primary
shortcoming is traceable not principally to its large number of judges
or geographical size, but rather to its failure effectively to address
erroneous panel decisions in important cases and to review cases in
which a meritorious claim of conflict is presented. This problem is
already being mitigated in the light of the recent upswing in the
number of cases that the Ninth Circuit has voted to hear en banc. The
problems that continue to persist, while admittedly difficult to
quantify, nonetheless appear susceptible to amelioration by
nonstructural means, as suggested in our submissions to the White
Commission. Indeed, the Circuit's en banc mechanism, if modified, is
particularly well suited to solving many of these problems. If that
course is followed, structural changes might ultimately prove to be
unnecessary and their attendant difficulties and dislocations avoided.
After a period of experience with non-structural alternatives and an
assessment of legal and demographic trends, the need for any structural
reforms might become clearer.
Improving the opportunity for en banc review. There are a number of
discrete but effective ways to increase the opportunities for en banc
review of panel decisions. In particular, Congress might consider
granting the courts of appeals a dispensation to lower the statutory
requirement that a majority of the Circuit's active-service judges must
vote affirmatively to rehear a case en banc. The success of the Supreme
Court in exercising its discretionary review based on the votes of less
than a majority is a model that should be studied for application in
the courts of appeals' en banc process. A similar ``4/9s'' rule might
well work at the Circuit level.
Other actions could better alert Circuit judges to the need for en
banc review. For example, the recently amended Federal Rule of
Appellate Procedure 35(b)(1) now requires litigants to set forth at the
outset of any petition requesting en banc rehearing a summary statement
regarding why the case creates an inter-Circuit or intra-Circuit split
or involves a question of exceptional importance. In addition, opinions
to be published that distinguish or disagree with existing precedent
should be circulated among the judges of the Circuit for review before
publication. Staff personnel could be deployed to act as an additional
check in the review of panel decisions for potential conflict with
other circuit decisions.
Although a system of increased availability of rehearing en banc
would require some investment of judicial resources, it seems likely
that time expended en banc in clarifying the law of the circuit and
resolving issues of exceptional importance would in the long run be
repaid by a corresponding reduction in litigation and an enhanced
ability of the Ninth Circuit as a whole to speak through the en banc
procedure. The short-term costs of increased en banc review may well
pay substantial long-term dividends.
Improving the representativeness of the en banc panel. The Ninth
Circuit should also consider methods of enhancing the
representativeness of its en banc panel. The most direct way to do so
is to increase the number of judges who sit on the en banc panel from
13 judges to 15. With 15 judges, the Circuit's en banc decisions would
properly represent the views of a majority of the Circuit's active
membership. Except for the Chief Judge, these judges should be selected
at random. Judges who call for en banc rehearing or who authored the
three-judge panel's opinion should not automatically be placed on the
en banc panel, for that might skew the representativeness of the panel,
and the legitimacy of the resulting en banc opinion.
* * * * *
In the long term, we recognize that demographic changes in the
Nation's population may well necessitate structural changes in the
court of appeals system. If and when that occurs, the analysis
contained in the White Commission's final report will provide valuable
insight on the potential options to be considered. At this time,
however, we believe that these non-structural alternatives should be
explored first and that any structural reforms should be reserved for a
time when these other alternatives are no longer workable.
section 2a: regional division of other circuits \13\
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\13\ The version of S. 253 provided to us contains two section 2s.
For ease of reference, we refer to the second section 2, which is
entitled ``Assignment of Judges; Panels; En Banc Proceedings;
Divisions; Quorum'' as section 2A.
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Section 2A of S. 253 would give all appellate courts with more than
15 authorized judgeships discretion to adopt a divisional arrangement
such as the one set out for the Ninth Circuit.\14\ These courts would
be permitted to organize themselves into two or more adjudicative
divisions, each capable of rehearing cases en banc. Each judge would be
assigned to a specific division for a substantial period of time, and
each division would exercise exclusive jurisdiction over the appeals
assigned to it. Any Circuit that opted to reorganize itself would be
required to create a Circuit Division modeled on the one set out for
the Ninth Circuit, involving no more than 13 judges and convened solely
to resolve ``conflict[s] [regarding issues of law] in the decisions or
2 or more divisions.''
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\14\ Sec. 2A(a) (creating new 28 U.S.C. Sec. 46(d)).
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The Department of Justice does not support the recommendation that
the remaining circuits be permitted to split themselves into semi-
autonomous adjudicative divisions when they reach a certain number of
judgeships. We do not believe such a significant change in the federal
appellate structure is justified, particularly before non-structural
alternatives of the type we have suggested are implemented and their
effects evaluated.
The implementation of a nationwide adjudicatory divisions plan
would create for each circuit the types of problems we have identified
in our discussion of the proposed changes to the Ninth Circuit.
Moreover, widespread enactment ultimately would result in a completely
restructured system overall, adding a fourth layer of review throughout
much of the federal judicial system, creating differing paths of access
to the Supreme Court depending on geography, and allowing varying
bodies of law to be developed by numerous mini-courts of appeals in
relative isolation from one another.\15\
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\15\ In addition, section 2A's proposal to create divisions in the
courts of appeals may result in the development, over time, of even
more complex and varied local rules of procedure. The Department has
worked extensively with the Advisory Committee on Appellate Rules to
develop simplified, centralized rules of appellate procedure and to
reduce the number and range of local appellate rules. Section 2A gives
considerable flexibility to the courts of appeals in creating
independent divisional systems. Thus, we remain concerned that the
proposed structural rearrangement could derail efforts to develop
nationally uniform procedural rules.
Moreover, the considerable leeway afforded to circuits other than
the Ninth to develop divisions does not foreclose the possibility that
circuits might create special subject-matter divisions. For the reasons
the Department set forth in its submissions to the White Commission, we
would be concerned about the creation of subject-matter divisions. Such
a possibility would add an element of potentially great variability in
practice and procedure among different areas of practice.
---------------------------------------------------------------------------
As an alternative to section 2A, we recommend implementing
experimental non-structural changes of the type described above with
regard to the Ninth Circuit. At a minimum, we suggest that section 2A
be deleted from S. 253 until such time as the existence of systemic
problems in other circuits sufficient to warrant such a change has been
found and to allow litigants and judges an opportunity to assess
whether the proposed structural changes would improve the quality of
justice.
section 2a: two-judge panels
Section 2A of S. 253 would authorize federal appellate courts to
use two-judge panels, and to allow the courts to designate by rule
those case types suitable for such disposition. The legislation leaves
it entirely to the court to determine when a case assigned to a two-
judge panel should be referred to a three-judge panel for hearing or
decision.
The Department's experience with various screening procedures
employed by the courts of appeals, including summary affirmance, leads
us to question whether it is necessary for Congress to authorize two-
judge panels and whether such panels would actually conserve judicial
resources. We have further questions regarding whether this provision
ensures both adequate procedures for assessing how cases are selected
for decision by such panels and necessary safeguards for determining
how a third judge is to be brought into the process when the two-judge
panel reaches an impasse. We are also concerned about how this
provision would affect the public's perception of the administration of
justice by the courts. If the two-judge panel provision is to be
adopted at all, we believe it would best be implemented as an
experiment for a limited duration in a few courts to allow Congress,
courts, and litigants an opportunity to assess the change.
section 3: district court appellate panels (dcap)
Section 3 of S. 253 would authorize judicial councils to create a
``district court appellate panel service'' with district and circuit
judges from the circuit. The judicial council would specify categories
of cases appropriate for DCAP jurisdiction and the panel would have
exclusive jurisdiction over those cases. Although S. 253 is silent on
this point, the White Commission opined that diversity cases would be
likely prospects for DCAP jurisdiction, as well as sentencing appeals
and cases that ``generally require the reviewer to apply well-settled
legal rules to varying fact patterns.'' \16\ Panels created from the
DCAP service would consist of two district judges and one circuit judge
designated by the chief judge of the circuit. District judges would not
review judgments from the courts on which they serve. Further review of
decisions by a DCAP would be discretionary in the court of appeals. In
addition, the panel itself could transfer a case to the court of
appeals if disposition involved a determination of a question of law it
deemed appropriate for the court of appeals.
---------------------------------------------------------------------------
\16\ Final Report at 64.
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In our view, the use of DCAP services in the Courts of Appeals
would likely result in a net cost to litigants and to the judicial
system as a whole, even if it produced an incidental reduction in the
burdens on the courts of appeals. Accordingly, we are not persuaded
that the creation of DCAPs is warranted or desirable.
First, the use of DCAPs would not reduce the overall judicial
workload--instead, it would simply divert much of the workload for some
appeals from busy appellate judges to busy district court judges.
Although the factual justification underlying this legislative proposal
is unstated, it may be a response to the statistical trends recorded in
Table 2-3 of the White Commission's final report, which suggest that in
the past century the per-judge caseload for circuit judges has
increased five-fold while that for district judges has only
doubled.\17\ Without a more careful analysis of the workload of
district judges, however, it would be premature to base conclusions on
those numbers alone. The statistics do not capture the increasing
complexity of time-consuming pre-trial practice, trials, and sentencing
proceedings, as well as district judge assignments to court of appeals
cases. Absent more definitive data, it seems unwarranted to conclude
that district judges are sufficiently underutilized that they may
absorb the extra work contemplated by this provision. Indeed, overall
the proposal may require even more judicial resources than are now
required at both the district court and court of appeals level, because
in at least some instances the court of appeals would grant permission
to take a further appeal after a DCAP decision and would in any event
have to consider requests for the exercise of discretionary review.
Thus, the courts (as well as the parties) could incur the expense of
conducting two appeals instead of just one before seeking Supreme Court
review.
---------------------------------------------------------------------------
\17\ Final Report at 14.
---------------------------------------------------------------------------
Second, section 3 calls for judicial councils, rather than
Congress, to determine the class of cases to be adjudicated by DCAPs.
That assessment, however, involves policy decisions about the nature of
the underlying legal disputes, including a substantive evaluation of
the applicable law. Such significant policy decisions, such as whether
diversity cases should be handled in a distinctive manner, should be
made by Congress, rather than by the judicial councils.\18\
---------------------------------------------------------------------------
\18\ Section 3 does not contain any formal recommendation
concerning how diversity cases should be treated, so we have not
included an analysis of that issue in this testimony.
---------------------------------------------------------------------------
Moreover, we question whether the administration of justice would
be served by creating a class of appellate courts inferior to circuit
courts of appeals and assigning cases deemed to be less significant to
them. Certainly service on such courts is not made to seem attractive
as described in the White Commission's reports, since it seems unlikely
that a circuit judicial council would assign the most interesting
classes of cases to any court other than its own court of appeals.
Finally, section 3 states that ``[f]inal decisions of district court
appellate panels may be reviewed by the court of appeals, in its
discretion.'' Such discretionary review raises the possibility that a
litigant might be foreclosed from having the right to seek Supreme
Court review of a decision that the court of appeals declined to
review.
For the foregoing reasons, the Department opposes section 3 and the
creation of District Court Appellate Panels. At a minimum, this
provision should be adopted only as a temporary pilot project that
would operate in a single court, in carefully and explicitly designated
categories of cases selected by Congress, and only for a limited period
of time.
concluding remarks
I have outlined the more important of the concerns of the Justice
Department based upon its review of the Federal Ninth Circuit
Reorganization Act of 1999. The White Commission has performed a
valuable service in studying the United States court of appeals system
and proposing ideas for its future organization. We are not, however,
convinced that either its conclusions or any other data evidence a need
for the structural reforms contained in S. 253. As we noted above, the
provisions contained in S. 253 themselves risk creating greater
inconsistencies in the law, greater delay in the resolution of cases,
and greater challenges to the representativeness and legitimacy of the
courts of appeals. Accordingly, while circumstances may one day warrant
the adoption of structural changes, other measures should be tried
first. We are committed to working with this Subcommittee and the Ninth
Circuit to develop and, where appropriate, implement such proposals.
I thank you for the opportunity to submit the views of the
Department of Justice to this Subcommittee.
Senator Grassley. For the record, my own absence, after
12:05, is because I have other commitments in my State.
I now call on Judge Browning.
STATEMENT OF HON. WILLIAM BROWNING
Judge Browning. Senator, thank you.
Senator Grassley. Would you take the microphone, please.
Judge Browning. I am sorry. Thank you very much. I, too,
appreciate the opportunity to appear before the committee and
speak on behalf of the Commission, of which I was a member.
Obviously, I join in the written remarks of Justice White
and Justice Merit, Professor Meador, who was the executive
director of our Commission, and Judge Rymer's remarks here
today. I join in those without qualification.
I think it needs to be said, not that I take any particular
offense, that there was never, during the course of this
Commission, almost a year's work, 10 months, and I made every
meeting, save one when I was ill, a discussion about the
political ideology of judges on the ninth circuit. Not once did
that subject come up. Not once, even in jest, was there any
reference to who appointed that judge. The review was
dispassionate, it had to do not with ideological outcome of
cases, but with the effectiveness of the court of appeals as an
adjudicative body.
I think Judge Wiggins has framed the disagreement that the
Commission has with the current status quo very well, and that
is they do not believe, those who support the current ninth
circuit, that there is such a thing as it being too big. If in
addition to the numbers Judge O'Scannlain set forth a moment
ago, the court had a full complement of judges, senior judges,
it would also have visiting judges in increasing numbers from
other circuits who have no way to keep up with what the ninth
circuit law is. They have a law clerk who tells them the
highlighted cases that come to their attention, but they do not
understand what the collegial approach to adjudication in the
ninth circuit is.
The same is true of my fellow district judges. I sit here
with some trepidation with the court of appeals, but let me
quickly distinguish myself. I am not a member of that court,
and they are happier about that, I am sure, than I am. But I
have sat with that court on many occasions, and I have sat with
some of the judges testifying here today. I have never been
treated with anything other than the utmost respect. I have
never been subject to any criticism or comment, other than a
disagreement honestly felt about my views, if that were the
case. So that was never anything we discussed.
We held six public hearings throughout this country, from
New York to San Francisco. The two on the Pacific coast were
the most, obviously, highly attended by ninth circuit judges. I
posed the question at both of those hearings: How big is too
big? I asked the leadership of the ninth circuit, I asked other
members of the ninth circuit, and, ladies and gentlemen,
Senators, I never got a response, which I take to mean, and
which I think Judge Wiggins has reiterated, is that it cannot
be too big.
In 1954, the Ninth Circuit Court of Appeals voted among
itself, with no prodding from this body or anyone else, to
divide the ninth circuit. They were a much smaller court then,
but they felt that the ninth circuit was unmanageably large,
not in terms of the number of judges, but in terms of the
geography and the difficulty in getting together to decide
cases. Those problems have been resolved, in large part, by
modern transportation. But it is interesting to note that the
court voted internally to divide or recommend to Congress that
it divide itself. That recommendation was forwarded to the
judicial conference who joined in the recommendation and sent
it on to the Congress.
Six months later, the ninth circuit reversed itself and
said we do not want to split or divide. The judicial conference
also advised the Congress that the ninth circuit had done that
and withdrew the proposed legislation.
The next meaningful event was the 1973 Hruska report, of
which Judge Wiggins was a member. That report identified
virtually all of the problems we speak about here today, over
20 years ago, over 25 years ago, and it is interesting that the
ninth circuit now, since the issuance of the final draft of the
White Commission report, has formed a committee to study these
problems. And I can integrate them, but they are all problems
that have existed for over 25 years. And respectfully, Senator
Feinstein, I have not seen the legislation you propose to
introduce, but it deals with problems that have existed for 25
years. And one wonders why those problems are just now being
addressed.
In order to flesh out that observation, I would refer the
committee to Justice Kennedy's letter to the Commission, which
is attached to Judge Rymer's written remarks. He was a member
of the Ninth Circuit Court of Appeals. He talks about personal
experience, as well as his observations as a member of the U.S.
Supreme Court. He notes that over 20 years ago the subject of
division of the ninth circuit came up in court meetings, and
people who advocated it, among them himself, were dissuaded by
the ninth circuit's promise and effort, which was a good-faith
and sincere effort, and no one has ever doubted that, to find
procedural, administrative and other ways to alleviate the
problems that have been identified here today.
As Justice Kennedy says in his letter, that was a failed
experiment. He went along with it as one of the detractors
saying, ``All right. We should experiment. But after 25 years,
we * * *'' in his words ``* * * have come no further.'' And I
think that that is a particular telling letter, and I commend
it to all of you.
The next meaningful event was in 1984, when the fifth
circuit split, and it split as a result of the recommendation
in 1973 of the Hruska report. Reference has been made, I think
by Senator Sessions and perhaps by panelists, about the split
of that circuit.
There is an interesting book, which I commend to all of
you. The name of it is, ``A Court Divided,'' talking about the
split of the fifth into the fifth and eleventh, as we know them
today. That was not done, as Mr. Olson suggests, with a light
heart and realization of problems superficially. That was done,
grown men, experienced judges, who were in tears, as they voted
to split that court.
There was no less emotion in keeping that court together
than today exists in the ninth circuit. What there was was a
realization that they can no longer function as a unified
court. That is what led to the split. I think that as one looks
at that, one sees that the time has come for the ninth circuit
to be divided.
Opponents claim there is no objective evidence that the
circuit needs to be split, yet a committee has been formed by
the circuit leadership, by Chief Judge Hug, to look into the
very matters we cite as objective evidence that it does need to
be split: dispositional times, the inability of judges to keep
abreast of the ninth circuit's output, things of that nature.
I also commend, because it has been talked about today, the
opinions of the U.S. Supreme Court Justices who responded to
our inquiry; Justice Rehnquist, Justice Scalia, Justice
Stevens, Justice Kennedy and Justice O'Connor, and Justice
Breyer, who did not make a specific recommendation regarding
the ninth circuit, but all of the others did. The remaining
three; Justice Thomas, Justice Ginsburg and Justice Souter,
declined to make any comment at all. But of those who commented
and made recommendations, they unanimously recommend a circuit
division or split. I think that is important not because of the
reversal rate of the ninth circuit, though I will address that
just briefly, but because these are the people who judge the
work product of the ninth circuit. These are the people who see
it and the results of it as judges, viewing judges, on a
regular basis.
With regard to the reversal rate, everything that is said
about its minimal importance is true, but it is also true that
the ninth circuit is the most reviewed circuit in the country.
The U.S. Supreme Court takes more of its cases than anyone
else's; it is the most reversed circuit in the country,
according to Judge Justice Scalia, whose letter is also in the
file, and I commend those figures to you in response to I
believe Justice Hug's comments about that; it is the circuit
reversed unanimously by the U.S. Supreme Court the most; and it
is the circuit, when reversed, which draws the fewest dissents
in the U.S. Supreme Court. There is some message there. The
message has been out there for all to read and hear for years.
I see, Senator, that my time has expired, and I do not want
to impose upon you. It has been a long morning. I have more to
say, and I will answer any questions. But if you wish me to,
and you will allow me to, I will supplement these remarks in
writing to shorten the hearing this morning.
Senator Feinstein [presiding]. I thank you, Judge Browning,
and I thank you for your comments.
Let me just commend this panel. And it is wonderful for me
to listen to each of you because your logic is crisp and your
conclusions are definitive. And the precision with which you
spoke was very much appreciated. So it was really a great treat
for me, who listens to a lot of panels, to listen to all of
you.
I would like to proceed by making a few comments. And then
asking each one of you to quickly reflect on these comments in
any way you choose.
I represent California. I do have that parochial interest.
Although the State is so big it is hard to think of it
sometimes as parochial. But the people of California whose
legal concerns come before the Federal bar must be served by a
unity of law within the State. To me, this proposal is
powerfully flawed in that regard because in the urging of these
three divisions, it balkanizes that unity of law, in my view.
I would like to enter into the record some letters, two
letters from the Los Angeles County Bar Association, dated
April 14, and April 16, specifically on the proposal; a letter
from Governor Wilson, dated April 15 of this year. And if I
might quote one point: Governor Wilson--since we began
discussing this 5 years ago--he has very eloquently made the
argument of judicial gerrymandering. In his letter here, he
says, ``This bill does the same, and it is worse because it
would divide the West Coast into not two, but three segments,
each with its own precedents not binding on the other regions
and would add another layer of judicial review to appellate
proceedings, adding delay and expense to adjudications.''
[The information referred to is located in the appendix.]
Senator Feinstein. I would then like to enter into the
record a letter from the State Bar of California, dated May 17,
1999, speaking about the proposal on behalf of virtually every
large and major bar association in the State of California.
They specifically cite L.A. County, San Francisco, San Diego,
Beverly Hills, Alameda County, the Federal Bar, Northern
District, Los Angeles and Orange County Chapters, the John
Langston Bar, the Black Women Lawyers' Association and the
Women Lawyers of Los Angeles, and the Lesbian and Gay Bar
Association as well.
So you have got a picture from the very diverse bars of the
State of California.
[The information referred to is located in the appendix.]
Senator Feinstein. I would then like to offer a letter to
me from Governor Gray Davis, dated July 7 of this year, and I
would like to quote from it as well.
The legislation would subdivide the appellate
function of the ninth circuit into three semi-
autonomous regional divisions and split the State of
California in half. The northern part of the State
would be placed in one division and the southern part
of the State in another. The court's rulings in one
division would not be binding on the other. I find this
proposal to split the State alarming. Not only is the
proposal untried and unproven, it creates a separation
between north and south that is inimical to what I am
attempting to accomplish as governor.
We need to bring our people together and de-emphasize
our differences. The Senate Bill 253 does just the
opposite. Furthermore, splitting California between two
divisions would likely result in inconsistent Federal
rulings on important California laws; one ruling
covering the north and a different ruling covering the
south. As a result, businesses operating in California
would be subject the conflicting State law, making it
more costly to do business in California.
The proposed legislation is also likely to foster
more disputes and more litigation. For example, if a
State law were found unconstitutional in the division
covering Northern California, the decision would be
binding only in that part of the State, leaving us with
a law that is valid in the south and invalid in the
north.
While SB 253 creates a circuit division to resolve
conflicts between divisions, that body is powerless to
do anything until such time as an inconsistent decision
is rendered by the division covering Southern
California. Thus, it will be necessary to file a second
suit in the second division to achieve uniformity in
the law.
[The information referred to is located in the appendix.]
Senator Feinstein. Now, let me quote from comments of the
U.S. Department of Justice on the draft report, in three
places. On page 4 out of 15 pages, the Justice Department
states that the proposal would unnecessarily delay the
administration of justice. I am just quoting from a part of it.
By adding another layer of review, the suggested
ninth circuit restructuring would delay the completion
of the judicial process for litigants. Following an
adverse panel decision, an aggrieved litigant would
seek en banc review by the division en banc court, as
would now be true of the circuit as a whole. A denial
of such a petition would, in many cases, precipitate a
further request for rehearing at the circuit division
level. Evaluation of a case for alleged conflicts with
a decision of another panel would only add to what is
already a protracted period for finally resolving
cases.
They go on to say, as I just stated from both governors'
letters, that dividing California is undesirable, for
essentially the same reasons. So it is in a more legalistic
form, but I will not read that.
So, why do I not just stop there and ask each of you to
quickly, with your views, respond as directly as you can to
these individual comments, and I will begin with the presiding
Judge, Judge Hug.
Judge Hug. Thank you, Senator Feinstein.
I think one thing that is very important to recognize and I
think Judge Rymer brought it out very well. These really are
very separate courts. The divisions of the circuit court of
appeals are very separate and as she indicated the circuit
division, that 13-Judge one, really is going to, and as she
envisions it operating, not have much to do with straightening
out the law of the circuit.
So, we really have three separate courts of appeals
operating. And, as you mentioned, it does present a very real
situation, a real problem with the State of California being in
two separate divisions. And I can see, say, for example, one of
the controversial propositions, having been interpreted by,
say, the middle division, and in the meantime, say, for
example, it is held unconstitutional, we do not have a
resolution of it in the Southern Division, where California is
involved. So, we have two with no binding precedent. If the
Supreme Court does not take it up, we have got two situations
between the two divisions in California. It is a very serious
problem.
It is a serious problem for the whole circuit for that same
reason. I think that there are more subtle differences also
that, for example, a search and seizure resolution of how
appropriately to search a house. If you are going to have
different resolutions to that in these different divisional
courts, that is going to present real serious problems and is
going to be contrary to keeping a development of a total
circuitwide law.
Senator Feinstein. Judge Hug, in the interest of fairness I
do not want to cut you off but I have to. I have a 1 o'clock
plane.
Judge Hug. OK.
Senator Feinstein. So, we need to go rather rapidly and I
want to give everyone a chance to respond.
Judge Hug. That is all I had to say.
Senator Feinstein. Thank you very much.
Judge Rymer.
Judge Rymer. The short answer to your question is then do
not divide California between two divisions. There is no magic
to that. It is sensible, in my judgment, because I think
eventually that is going to have to happen because in order to
service the people of California more judges will be required
than can function effectively together as a single
decisionmaking unit. But that is the short answer.
The long answer is also short and that is that putting
parts of the State of California into different divisions will
exactly mirror what the State of California has done for
itself. Because it is precisely the same structure that the
California Court of Appeals has got, precisely. So, it will
create no new problem that California does not already have,
does not live with, has not adjusted to, very, very well.
Finally, with respect to things like Constitutionality of
State propositions, it is something I simply do not understand.
If, as Judge Hug suggests, one division says that a ballot
proposition is unconstitutional that is going to win and the
Governor of the State is going to be enjoined, period. He
cannot enforce that ballot proposition. So, I do not understand
the problem. It exists in the State of California now. And one
final note.
California----
Senator Feinstein. Would you comment on the search and
seizure argument, which is a little different than a ballot
measure?
Judge Rymer. Sure.
Sure. It is a difference. If there comes to be a difference
between what the northern division says about search and
seizure and the southern division, it is a difference that does
not matter to anyone. Because only the lawyers in the district
courts within each division will be bound by that division's
law. They only have to be concerned that the divisional law is
consistent.
It just does not matter if the law is the same throughout
the West. If it does matter and if there is a square conflict,
then the circuit division can, in fact, step up to the plate
and resolve it if uniformity of the law throughout the Western
part of the United States is, in fact, crucial.
Senator Feinstein. Thank you.
Judge Kleinfeld.
Judge Kleinfeld. Thank you, Senator.
Your concern about dividing California strikes me as
serious and well-taken. I do not think it affects the
Northwest. It seems too bad to saddle the Northwest and the
other parts of the circuit with a decisional body that is too
big to work effectively because of concerns about dividing
California.
It may be that simply changing the divisions around so that
California is not divided would be to reconcile these
interests. California could be its own division or it could be
a division with one or two other States, instead of being
divided as the Commission says and you could still keep the
commission structure.
The second thing that occurs to me is you already have
incoherence of Federal appellate law in California. Right now,
it is not because of a difference between North and South, it
is because we are too big to work effectively as a decisional
body.
We have decisions in death penalty cases out of California
that I cannot reconcile. And the only way that I can make any
sense of them is that different panels decided them. We are too
big to work effectively and create coherent law for California
as it is.
Senator Feinstein. Thank you very much.
Judge Scannlain.
Judge Scannlain. Senator Feinstein, I tend to be pretty
pragmatic. And if the California member of the Senate Committee
on the Judiciary has expressed profound concerns about putting
California into two separate divisions or two separate
circuits, then it is not going to happen, and I would not want
to force that issue in any possible way.
It seems to me what that counsels is that S. 253 is going
to have to go through some modification and either California
becomes its own separate division or that California, perhaps
some day if not sooner, becomes its own separate circuit.
Something will occur with respect to California which will
respond to the underlying problem and I gather there is a fair
amount of agreement, Senator. I see no reason at all why some
of your suggestions could not be taken into account in the
legislation that you are proposing which I have not yet seen
but which has been described so far.
But I wish, on the other point, I wish Senator Torricelli
were here because he might be rather mystified by the curious
argument from people on the west coast that somehow they are
sacred and they cannot have separate circuits compared to the
east coast.
Senator Feinstein. You do not believe we are sacred?
[Laughter.]
Judge Scannlain. On some things, absolutely.
But the whole idea that you cannot have separate circuits
in the west coast is really frankly just not worth pursuing.
You have got the first, second, third, fourth and the eleventh
on the Atlantic Coast and as far as I know those freighters are
not colliding any more frequently because they do not know what
the law is than the freighters going from the west coast to the
Far East.
So, those are my responses.
Thank you, Senator.
Senator Feinstein. Thank you, Judge.
Judge Wiggins.
Judge Wiggins. There is not a problem, do not fix it. I
would not address these problems by creating a new circuit.
Leave well enough alone. That is my answer, do not address it.
Senator Feinstein. Thank you very much.
Judge Browning.
Judge Browning. Senator, my remarks would not be remembered
so much for what they are as for the fact that they made you
miss your plane, so, I will be brief. [Laughter.]
Senator Feinstein. That is a good adaptation, actually.
Judge Browning. Let me just comment. All of the comments
that have been made to the point you raised, I would agree to.
I want to comment only on the layer of review. There is exactly
the same review today as this Commission report proposes. They
are called by different names, but they have the same number of
appeals.
What has not been said and what this committee, I think,
should study and look into is that since the limited en banc
procedure has gone into effect in the ninth circuit, which I
believe was 1973 or 1974, there has also been a procedure where
the ninth circuit can set en banc, meaning entire judicial
panel would sit. That has never in the history of the ninth
circuit been used. That does not mean it is not available. It
just means that ninth circuit judges, for whatever reason--and
I suspect their workload is a big part of it--have not seen fit
to go en banc with a full panel.
So, the Governor's comment about an additional layer of
review, I think, omits that simply because it has never
happened but it exists. It is there. And I am sure my friends
on the ninth circuit will tell you they receive petitions every
month of lawyers who ask them to convene that huge 28-judge
panel. But the lairs have been so far unsuccessful.
With regard to the admiralty question it is not a big
concern in Arizona so I will leave it to others. [Laughter.]
Senator Feinstein. Thank you very much.
Thank all of you very, very much. I think it has been a
very interesting hearing. Clearly the issues have been joined
and the dialog will continue. And I want to thank you on behalf
of our Chairman, Senator Grassley, as well, and this hearing is
adjourned.
[Whereupon, at 12:32 p.m., the committee was adjourned.]
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Questions and Answers
----------
Munger, Tolles, & Olson LLP,
Los Angeles, CA, August 19, 1999.
The Honorable Charles E. Grassley,
U.S. Senate Committee on the Judiciary, Subcommittee on Administrative
Oversight and the Courts, Washington, DC.
Dear Senator Grassley: I am writing in response to your letter of
July 29, which arrived while I was out of the office on business and
vacation. I apologize for the tardiness in responding.
Taking your questions as presented, I have the following responses:
Responses of Ronald L. Olson to Questions From Senator Grassley
i. destroyed collegiality
Answer 1. Certainly there is some correlation between the size of
an institution and the intimacy of its members.\1\ However, in my
opinion, as an active advocate and court watcher, the size of the Ninth
Circuit has not interfered with the collegiality needed for sound
judicial decision-making. Well-over 90 percent of the judicial
decision-making occurs within 3-judge panels. Hence, the overall size
of the circuit is secondary to how well these 3-judge panels relate.
Here, my experience suggests that individuals on 3-judge panels are not
only cordial with each other but genuinely interested in sharing views
and analysis in a way that leads to a prompt and fair decision. At
least 3 factors bear on this experience:
---------------------------------------------------------------------------
\1\ Nonetheless, this point should not be overstated, either with
respect to better decision-making or intimacy itself. Some 32 years
ago, I clerked on the United States Court of Appeals for the D.C.
Circuit, then a very small court sitting together on a single floor of
the Courthouse. Despite its small size and physical intimacy, two of
the more prominent judges not only disagreed philosophically and in
judicial decisions but refused to speak to each other and communicated
only by formal memoranda.
(a) Typically, each panel comes together for a full-week of argument,
shared analysis and tentative decision-making. This intense shared
professional relationship may well promote more ``collegiality'' in
decision-making than one would have in an environment of fewer
circuit-wide judges sitting more randomly with each other and for
---------------------------------------------------------------------------
shorter time periods.
(b) Second, it is obvious that, because of its size, the Ninth
Circuit makes an extra effort to maintain professional collegiality
through in-person and tele-picture conferences and through its
existing administrative offices in San Francisco and Pasadena.
(c) Third, the important collegiality is that which stimulates
communication related to decision-making. With the help of a
sophisticated clerk's office that codes issues in each case, judges
are prompted to have timely communications with other judges who
have expressed themselves on related matters. Further, I would
argue that important professional collegiality, such as that which
occurs at the annual circuit conferences, is enriched by the
presence and participation of a greater number of judges. Indeed,
my personal experience in other professional settings is that the
smaller the group, the more personal and social the experience, and
the larger the group, the more professional the experience.
2. quality of court opinions
Answer 2. I know of no meaningful analysis of the comparative
quality of federal court appellate opinions. I would argue that in the
Ninth Circuit the depth and accuracy of legal analysis, the integrity
of the process and the results, and the timeliness of opinions
(especially if adjusted to account for the Ninth Circuit's work for so
long without a full complement of authorized judges) is equal to that
of any other circuit in the country. I would further argue that the
1997 Supreme Court reversal rate for the Ninth Circuit is a meaningless
indicator of the ``quality of opinions.'' I am personally familiar with
many of those Ninth Circuit opinions and know them to present very
difficult policy questions on which the Supreme Court itself was
divided and know that the alternative result of the Ninth Circuit was
generally supported by sound analysis and judicial integrity. I would
further note that Justice Scalia's reliance on reversal rates to
support the view that the Ninth Circuit is consistently out-of-step
with the Supreme Court is not borne out in more current years, not
borne out by a longer-term analysis than years referenced by Justice
Scalia, and, in any event, is essentially meaningless. Different views
are not dishonest views and may well be constructive as part of the
national debate on difficult policy questions. Nor does a different
result indicate that the decision is less well-reasoned or less well-
expressed or have less integrity. In any event, there is no known
correlation between the size of the circuit and ``getting it right''
with the Supreme Court.
3. timely disposition of cases
Answer 3. The experience of our law firm suggests that the Ninth
Circuit is timely in reporting its decisions. However, I know that your
committee and the Ninth Circuit have access to complete statistics for
the Ninth Circuit and for other circuits, and I would, therefore, defer
to those statistics. However, the speed of decision-making is not, in
my opinion, meaningfully related to the size of the circuit. As noted
before, most decisions are made by 3-Judge panels and most opinions are
written by a single judge. The diligence of the individual judges on
the panels and writing the opinions overwhelms any other factor in
determining timeliness. Finally, it must be noted that the Ninth
Circuit has long labored with less than a full complement of authorized
judges. In my opinion, filling judicial vacancies would have a far more
positive effect on timeliness than reorganizing the existing circuit.
Indeed, the proposed tripartite division would seem likely to slow the
disposition of those cases that received the additional review by the
circuit division.
4. what evidence would support reorganization?
Answer 4. My answer to this question is articulated best by the
``Proposed Long Range Plan for Federal Courts,'' adopted by the
Judicial Conference of the United States in December 1995, and the
resolution adopted by the House of Delegates of the American Bar
Association in August 1999. Both of these policy-making bodies agree
that restructuring should not occur without ``compelling empirical
evidence to demonstrate adjudicative dysfunction.'' An aberrational
case such as Hughes Aircraft Company vs. Jacobson occurs from time to
time in most circuits. An occasional aberrational case does not equal
``compelling empirical evidence'' of adjudicative dysfunction. Nor is
there any indication that the unacceptable delay associated with Hughes
Aircraft was attributed to the size of the Ninth Circuit.
In conclusion, I again thank you, Senator Grassley, and the
Judiciary Subcommittee on Administrative Oversight and the Courts for
your attention to this important matter and for giving me the
opportunity to participate in the hearing. If I can be of any further
assistance, please let me know.
Sincerely yours,
Ronald L. Olson.
__________
Responses of Procter Hug, Jr. to Questions From Senator Grassley
Question 1. The commission has suggested allowing appellate courts
to use panels of two judges--instead of the traditional 3 judge
panels--to hear appeals. However, the legislation does not offer a
solution where there is a split between the judges on a two judge
panel. How should such a disagreement be handled?
Answer 1. The two judges assigned to such panels will rarely
disagree because the panels would ``primarily'' decide ``cases in which
the outcome is clearly controlled by well-settled precedent.'' (Report
at 63.) If disagreement or doubt does arise, the Commission recommends
the two judges ``enlist a third judge to participate in the decision,
or refer the case to a regular three judge panel for hearing.'' (Id.)
Either alternative would provide an efficient and effective mechanism
for resolving the few disagreements that might occur. We have
successfully employed similar procedures in the screening program
maintained by our Court.
Question 2. The Commission states that the Circuit Division should
only hear ``square conflicts'' between the regional divisions. Critics
argue that this will cause the law of the different regions to drift
apart over time and erode the uniformity of circuit law to the point
where the law of the circuit is insignificant. On the other hand, if
the circuit division takes more than ``square conflicts'' in order to
provide more uniformity in the circuit, it will be operating like
another full layer of appeal. What is likely to be the practical way in
which the circuit division operates and what consequences will this
have on the circuit as a whole?
Answer 2. The dilemma exposed by Senator Grassley's question
provides yet another persuasive reason for rejecting the divisional
structure proposed by the Commission. At a minimum, the circuit
division will create an additional layer of appeal before finality,
compounding the delay, cost, and administrative burdens of the
appellate process. Limiting the jurisdiction of the circuit division to
resolving ``square interdivisional conflicts,'' (Report at 45), will
generate additional litigation and leave questions of exceptional
importance unresolved in the Ninth Circuit. Three autonomous,
adjudicative divisions will erode the uniformity of circuit law, and
ultimately create more work for the Supreme Court.
______
Responses of Procter Hug, Jr. to Questions From Senator Thurmond
Question 1. Judge Hug, as you know the size and number of the
Federal Circuits has changed over time as the country has grown. In
1929, the Tenth Circuit was created, in 1981, the Eleventh, and in 1982
the Federal Circuit was created. Indeed, Judge O'Scannlain testified
that ``There is nothing sacred about the Ninth Circuit's keeping
essentially the same boundaries since 1855. The only legitimate
consideration is the optimal size and structure for judges to perform
their duties.'' Do you disagree with this statement of Judge
O'Scannlain, and is it your belief that the Ninth Circuit should never
be split no matter how large it gets?
Answer 1. I do not disagree with Judge O'Scannlain's statement that
optimal size and structure for the court of appeals to perform its
duties should be the primary consideration. However, no one knows what
the optimal size of the Ninth Circuit (or any other circuit, for that
matter) may be. The Commission conceded that the size of a circuit, and
its resulting effects on the consistency and predictability of its
decisional law, are ``too subtle * * * to allow evaluation in a freeze-
framed moment.'' (Report at 40.) We do know, however, based on our
experience over the last fifteen years, that twenty-eight judgeships
are not too many to enable the court of appeals to operate effectively.
I agree with the Long Range Plan of the Federal Courts, adopted by the
Judicial Conference of the United States, that no circuit should be
split unless or until there is ``compelling empirical evidence'' that
it is not functioning effectively. (Judicial Conference of the United
States, Long Range Plan for the Federal Courts, at 44 (1995).) The
Commission failed to meet that burden.
Question 2. Judge Hug, the Commission's report recognizes a
consensus among appellate judges that in order to function effectively
a court of appeals should be made up of no more than seventeen judges.
Of course, the Ninth Circuit is beyond that number with 28 judges. Do
you disagree with this consensus of the Appellate judges? Please
explain.
Answer 2. Yes, I disagree. If you look closely at the Commission's
working papers you will see that the Commission's ``consensus''
includes views of judges on courts that have never had more than 17
judges. The response from the judges on the only federal appellate
court that has exceeded that number--the Ninth Circuit--are quite
different: \2/3\ of the judges (and lawyers) of the Ninth Circuit are
satisfied that the present court of appeals is functioning well with 28
judges, and should not be restructured. When our court of appeals grew
from 3 to 7, 7 to 9, 9 to 13, 13 to 23, and 23 to 28, critics
proclaimed that the court had exceeded its maximum practicable size
before the new judges arrived. They were wrong. As I testified, I
believe we have effectively demonstrated that a large court of appeals
can function well, delivering quality justice and coherent, consistent
circuit law in the face of an increasing workload.
__________
U.S. Court of Appeals, Ninth Circuit,
Fairbanks, AL, August 11, 1999.
The Honorable Charles E. Grassley,
Chairman, Subcommittee on Administrative Oversight and the Courts,
Committee on the Judiciary, U.S. Senate Washington, DC.
Dear Senator Grassley: Thank you for your perceptive questions
about the White Commission Report. Below I restate the questions and
Then give my answer.
Responses of Andrew J. Kleinfeld to Questions From Senator Grassley
Question 1. Many have expressed a concern about splitting the State
of California, into two regions. I am interested in any drawbacks there
would be to a plan that would arrange The divisions differently by
keeping California intact in one region. What drawbacks would there be
to such a plan? On the other hand, what advantages does splitting
California between divisions offer that outweigh the potential problems
of forum shopping?
Answer 1. I also have doubts about the desirability of splitting
California into two federal appellate divisions. As the While
Commission points out, California already has multiple appellate
divisions in its state court system and the inter-divisional, en banc
could reconcile conflicts. Nevertheless, a simple split of The Ninth
Circuit as Congress did with the Eighth and the Fifth, with all of
California left in the remaining Ninth Circuit, seems like a better
idea to me. The White Commission report's general scheme could be kept,
with the divisions altered somewhat, to avoid splitting California. For
example, California could be one division, Alaska, Washington, Oregon,
Idaho, and Montana another, and Arizona, Nevada, and Hawaii a third.
But even if The White Commission Report is adopted as is, I think it is
better for California than the status quo. Because the Ninth Circuit is
too big for us to read each other's decisions, or maintain an effective
en banc procedure, California already lacks coherent federal law.
Instead of one coherent body of law for Northern California, and
another coherent body of law for Southern California, federal appellate
law for California now depends much too much on the composition of the
particular panel.
Question 2. What extra costs, if any, would be involved with
implementing S. 253? Would you see any increase in any personnel
positions, including judgeships?
Answer 2. My guess is that splitting the Ninth Circuit would save
money, not cost money. It would have no effect on the number of
judgeships necessary. However the circuit is split, judges could be
allocated according to the percentages of the caseload going to the new
circuits or new divisions. It is possible that the complexity of The
White Commission plan would require some additional administrative
assistance, but I am not at all sure that this is true. If we had a
simple split of the Ninth Circuit, probably administration would cost
less, because it is always simpler to administer a smaller unit. I do
not see any difference in needs for buildings according to whether we
are one circuit, two, or three, or one, two, or three divisions. If we
were to split the circuit and require 21 Northern headquarters, there
is a substantially vacant federal court building in Portland, the Gas
Solomon Courthouse, which could be used for this immediately. Once a
new district court facility is constructed in Seattle, the now shared
federal courthouse in Seattle would also be an entirely appropriate and
adequate headquarters.
Question 3. The commission has suggested allowing appellate courts
to use panels of two judges--instead of the traditional 3 judge
panels--to hear appeals. However, the legislation does not offer a
solution where there is a split between the judges an a two judge
panel. How should such a disagreement be handled?
Answer 3. There are several possibilities for handling
disagreements between two judges on a two judge panel. The one that
commends itself to me is for the two judge panel to refer the case back
to the clerk's office for reassignment to a three judge panel. The
court could decide by general order or a circuit rule whether the same
two judges should be on the three judge panel automatically, if they
volunteer, or only if they are drawn according to the random process.
We do something like this in our screening process for simple cases. A
three judge panel either adopts a staff recommendation after a quick
look at the case, or asks the clerk's office to assign it to a regular
three judge panel for fuller consideration.
Question 4. Opponents of the Commission's proposal say that there
is no evidence that justifies reorganizing the Ninth Circuit. In your
opinion, is there evidence that would justify such a reorganization?
Specifically, what is it (please give examples if possible)? And if
such evidence does not exist at this time, what sort of evidence would
justify a reorganization?
Answer 4. The clearest evidence that reorganization is necessary is
that a majority of Supreme Court Justices have said that it is. They
review what we do, and they think repair is needed.
A clear example of the kind of distortion that can occur when fewer
than all the judges on a court serve on an en banc panel is in Thompson
v. Caldero, 120 F.3d 1045 (9th Cir. 1997) (en banc). In this case, as
the dissents make clear, a majority of the en banc panel, but a
minority of the court, made a surprising decision in a death penalty
case, which the dissenters believed was outside the scope of the en
banc call. In any other court, the scope of the en banc call would be
of little importance, but where fewer than all the judges serve on the
en banc panel, the scope of the call is critical, because it represents
the only time that the entire court votes. The Supreme Court later
characterized what the majority of our en banc panel (but a majority of
our court) did as ``a grave abuse of discretion.'' Calderon v.
Tbompson, 523 U.S. 538, 542 (1998). Whether a man lives or dies should
not depend on who happens to be drawn for a panel.
Question 5. The Commission states that the Circuit Division should
only hear ``square conflicts'' between the regional divisions. Critics
argue that this will cause the law of the different regions to drift
apart over time and erode the uniformity of circuit law to the point
where the law of the circuit is insignificant. On the other hand, if
the circuit division takes more than ``square conflict'' in order to
provide more uniformity in the circuit, it will be operating like
another full layer of appeal. What is likely to be the practical way in
which the circuit division operates and what consequences will this
have on the circuit as a whole?
Answer 5. It is hard to predict just how the circuit division will
develop, because the idea is new. My hope would be that the circuit
division would take very few cases, so that it would not turn into an
expensive additional layer of appeal for the parties. I see no harm in
having the different regions of the circuit drift apart with regard to
substantive law, especially if California is left as one division,
perhaps with Arizona, Nevada, and Hawaii as the Southern division.
There is no more of an intrinsic problem with California, Idaho,
and Arizona taking different views than in New York, Illinois, and
Texas taking different views on issues of federal law, New York,
Illinois, and Texas are in different circuits and do exactly that.
Likewise, Massachusetts, New York, Virginia, and Florida, though all
East Coast states, are all in different circuits. It simply is not a
problem. Supreme Court Justices have frequently characterized the
differing views of the circuit as a public benefit, because the Supreme
Court can then see how the issue develops as it ``perculates'' in the
circuits.
Sincerely yours,
Andrew J. Kleinfeld/bgf,
Circuit Judge.
__________
Responses of Diarmuid F. O'Scannlain to Questions From Senator Grassley
Question 1. Many have expressed a concern about splitting the State
of California into two regions. I am interested in any drawbacks there
would be to a plan that would arrange the divisions differently by
keeping California intact in one region. What drawbacks would there be
to such a plan? On the other hand, what advantages does splitting
California between divisions offer that outweigh potential problems of
forum shopping?
Answer 1. The most serious drawback of keeping California intact in
one region is that the resulting division would be disproportionately
large, whether measured in size of population or caseload. California
now has 63 percent of the Ninth Circuit's total workload and about the
same proportion of population. If California were kept intact by itself
and the remainder of the states divided between two other divisions,
the California division would have more than triple the workload of
each of the other two divisions (enough, incidentally, to justify being
a stand alone circuit by itself, which wouldn't be a bad idea
alternative, by the way).
I have never been impressed by the ``forum shopping'' charge. As
the White Commission recognized, litigants in California are already
free to choose the district court in which they file. Any ``division
splits'' could be quickly and expeditiously resolved whether by the
Circuit Division in the proposed legislation or by an intercircuit
panel if Option C were adopted.
In any event, I would not object to an all-California division as a
consensus compromise to accommodate the regional interests involved.
Question 2. What extra costs, if any, would be involved with
implementing S. 253? Would you see any increase in any personnel
positions, including judgeships?
Answer 2. New courthouses would not be required in either the
Southern or Middle Divisions, because the current spacious Pasadena and
San Francisco courthouses would presumably serve as the headquarters of
those divisions, respectively. There is an empty federal courthouse in
Portland, Oregon, the ``Gus J. Solomon Federal Courthouse,'' which
would be available at no cost (except minimal remodeling) as the
Northern Division headquarters if Congress agrees so to designate.
I do not believe that the implementation of S. 253 would require an
increase in the number of judgeships. Further, the existing court
personnel both the staff attorneys and the administrative personnel
would simply be reallocated among the three divisions.
The geographical expansiveness of our present circuit requires
judges to expend considerable time and resources traveling from distant
cities to panel hearings and court hearings, which are primarily in
California. S. 253 would do much to curtail extensive travel expense.
Question 3. The commission has suggested allowing appellate courts
to use panels of two judges--instead of the traditional 3 judge
panels--to hear appeals. However, the legislation does not offer a
solution where there is a split between the judges on a two judge
panel. How should such a disagreement be handled?
Answer 3. I agree with the White Commission that federal appellate
courts would benefit from having the flexibility to adjudicate some
cases using two-judge panels, because this proposal would conserve
resources without any loss in fairness. If the judges on a two-judge
panel disagree over how to resolve the case, a third judge, drawn at
random, would be enlisted (as we do now on two-judge motions matters)
or the case would be calendared for consideration by a regular three-
judge panel.
Question 4. Opponents of the Commission's proposal say that there
is no evidence that justifies reorganizing the Ninth Circuit. In your
opinion, is there evidence that would justify such a reorganization?
Specifically, what is it (please give examples if possible)? And if
such evidence does not exist at this time, what sort of evidence would
justify a reorganization?
Answer 4. There is much evidence that justifies reorganizing the
Ninth Circuit. First, after careful analysis, the White Commission
concluded that any court with more than eleven to seventeen judges
lacks the ability to render clear, circuit-consistent, and timely
decisions, and I agree. In light of this finding, the Ninth Circuit,
with 28 authorized judgeships (not to mention our 19 senior judges),
has far more than the maximum number of judges with which a circuit can
function effectively.
Second, as several Supreme Court Justices have commented, the risk
of intracircuit conflicts is heightened where a circuit publishes as
many opinions as the Ninth Circuit does. Frankly, we are losing the
ability to keep track of our own precedents. As Judge Rymer reported,
only about half the Ninth Circuit judges read all or most published
opinions. It is imperative that judges read opinions as they are
published, since this is the only way to stay abreast of circuit
developments as well as to ensure that no intra-circuit conflicts
develop and that, when they do, they be reconsidered en banc.
Third, as the Commission reported, a disproportionately large
number of lawyers indicated that the difficulty of discerning circuit
law due to conflicting precedents was a ``large'' or ``grave'' problem
in the Ninth Circuit. From my own experience since 1986, I can tell you
that this problem has worsened notably as the work of the court has
grown.
Fourth, the Ninth Circuit's limited en banc system has not worked
well to promote consistency of law, which can only be guaranteed by
regular full court en banc rehearings. Several Supreme Court Justices
have criticized the court for failing to rehear a sufficient number of
cases en banc.
Question 5. The Commission states that the Circuit Division should
only hear square conflicts'' between the regional divisions. Critics
argue that this will cause the law of the different regions to drift
apart over time and erode the uniformity of circuit law to the point
where the law of the circuit is insignificant. On the other hand, if
the circuit division takes more than ``square conflicts'' in order to
promote more uniformity in the circuit, it will be operating like
another full layer of appeal. What is likely to be the practical way in
which the circuit division operates and what consequences will this
have on the circuit as a whole?
Answer 5. The jurisdiction of the Circuit Division appropriately
balances the two competing needs identified by Senator Grassley. By
having Jurisdiction only over ``square conflicts,'' S. 253 will promote
uniformity of the law of the circuit, but avoids creating a full
additional layer of appeal. I must concede, however, that it is
difficult to predict exactly how the Circuit Division will operate in
practice.
Question 6. The report states that one concern in dealing with the
Ninth Circuit is the need to ``respect the character of the West as a
distinct region.'' However, this region of the country is by no means
homogeneous. Why are states on the west coast so similar to other
states that they need to remain in the same circuit?
Answer 6. The notion that the West has a distinct character which
immunizes it from the normal evolution of federal judicial institutions
is, quite frankly, a joke on Congress. If any American region has a
distinct character, it would be the South which now spans three
circuits, the most recent split having occurred in 1980 by carving out
Alabama, Florida, and Georgia from Louisiana, Mississippi, and Texas
into the Eleventh Circuit. And while we're at it, what about the law of
the Midwest? The Sixth, Seventh, and Eighth Circuits all include states
in the Midwest, yet no one seriously contends that having three
circuits has been deleterious to the development of the law of that
region.
The argument that we need to keep the circuit together so that we
can retain a consistent law for the west coast is also absurd. The
states along the eastern seaboard are divided among five different
circuits. I challenge critics of S. 253 to produce evidence that the
failure to keep all the states on the east coast in the same circuit
has produced deleterious effects. Are freighters colliding more
frequently off Cape Hatteras or Long Island than the Pacific Coast
because of the uncertainties of maritime law on the East Coast? Of
course not.
__________
U.S. Court of Appeals Ninth Circuit,
Las Vegas, NV, August 3, 1999.
Hon. Charles E. Grassley,
Chairman, Subcommittee on Administrative Oversights and the Courts,
Committee on the Judiciary Washington, DC.
Dear Chuck: I was pleased to appear before your committee and am
willing to respond to the questions you asked in subsequent
correspondence.
First, you should appreciate that I do not support the proposed
legislation now pending in the Senate. I would recommend that you avoid
the problem entirely by rejecting the legislation. Nevertheless, I am
willing to respond further to your inquiries.
Responses of Charles E. Wiggins to Questions From Senator Grassley
Answer 1. The first suggestion is to substitute in certain classes
of cases appellate panels of two judges instead of three. You have
asked me to comment on the possibility of a split between the appellate
panels of two. The legislation is silent on this possibility. I would
recommend that if the appellate panels of two are provided for in
legislation, the possibility of splits must be resolved by referring
the split panel to a third judge who should participate in the
proceedings. I have observed that the Commission has proposed a
reduction in size of panels for the handling of routine cases but
insists on enlarging the en banc court to provide a full review of the
two judge panel decision. I think that this is an inconsistent proposal
which should be rejected by the Senate. Nevertheless, circuits should
be permitted to examine options to the traditional three judge panels
in certain categories of cases. I see no disability in their doing so
now.
Answer 2. The second question raises the issue of the resolution of
``clear conflict'' by regional divisions. The proposal is not worthy of
further consideration by the Senate. It is a product of the divisional
concept recommended by the White Commission. I reject that proposal in
its entirety. I would predict that the resolution of square conflicts
between the divisions will unsettle the law of the circuit.
I doubt that you will accept my recommendations, Chuck, but I have
given a great deal of thought to this issue and have concluded that the
Ninth Circuit is not too large and does not need correcting. The Courts
of Appeal of other circuits should be restructured and should be
combined to promote larger and fewer circuits. The growth in population
and the evident inability of Congress to limit the subject matter
jurisdiction of the Courts of Appeal make the consideration of
consolidation an inevitable solution.
Warmest personal regards,
Charles E. Wiggins.
__________
Response of Jon P. Jennings, Acting Assistant Attorney General, to a
Question From Senator Grassley
Question 1. Those who support the Commission's proposals cite a
lack of collegiality and the current en banc procedure as major
problems with the Ninth Circuit. Since you do not support the
Commission's proposals, what, if anything, would you propose to
alleviate these problems?
Answer 1. As we observed in our written testimony, the Justice
Department believes that the three primary goals that the Ninth Circuit
Court of Appeals strives to achieve are consistency of its decisions,
efficiency in resolving cases, and the appearance that all of its
decisions reflect the views of the Court as a whole. While collegiality
may contribute to these primary goals, we do not see it as an end in
itself, nor do we see that the size of a court has an impact on the
general collegiality of the court's membership. By the same token, we
do not believe that the Ninth Circuit's size is the cause of any lack
of consistency in its decisions. Instead, we think that the
inconsistencies may stem from a failure of the Circuit to correct
erroneous or conflicting panel decisions in an effective manner. As you
are aware, the Ninth Circuit already has an en banc procedure in place
to address such panel decisions. That procedure could nevertheless be
improved by making slight modifications aimed at serving two goals:
increasing the availability of en banc review and increasing the
representativeness of the en banc panel itself.
Three modifications in particular might accomplish these ends.
First, reducing the number of active judges who must vote to rehear a
case en banc from the current requirement (a majority) to some lesser
number would increase the opportunities for en banc reconsideration of
panel decisions. We suggested a ``4/9s'' threshold in our testimony,
but understand that Senator Feinstein has proposed a 40 percent
threshold in the Ninth Circuit Court of Appeals En Banc Procedures Act
of 1999 (S. 1403). Either proposal would be an improvement over the
existing requirement. Second, circulating opinions that distinguish or
disagree with existing precedent to the Circuit judges before those
opinions are published may avert the creation of conflicting precedent
or, at the very least, better alert the judges to the need for en banc
review of particular decisions. Third, increasing the number of judges
who sit on the Ninth Circuit's en banc panel from 11 to 15 would make
the Circuit's en banc decisions more representative because those
decisions would then be more likely to reflect the views of a majority
of the Circuit's 28 active judges. As the most frequent litigator in
the federal courts of appeals, the Justice Department is committed to
working with this Subcommittee and the Ninth Circuit to improve the
quality and consistency of decisions in that Circuit.
Additional Submissions for the Record
----------
Los Angeles County Bar Association,
Los Angeles, CA, April 14, 1999.
Re: Senate Bill 253--Federal Ninth Circuit Reorganization Act of 1999
Hon. Dianne Feinstein,
U.S. Senate, Hart Senate Office Bldg., Washington, DC.
Dear Senator Feinstein: We are writing to express our concerns over
and opposition to the restructuring of the Ninth Circuit, as proposed
in Senate Bill 253 (``S. 253''). As set forth below and in the enclosed
analysis, we have seen no reliable evidence or data justifying the
unprecedented and problematic structural changes proposed by the
pending legislation.
Some twenty-five years ago, the Hruska Commission cautioned that
any realignment of courts of appeal should proceed with me: ``[T]he
present [circuit] boundaries * * * have stood since the nineteenth
century. * * * Except for the most compelling reasons, we are reluctant
to disturb institutions which have acquired not only the respect but
also the loyalty of their constituents.'' Commission on Revision of the
Federal Court Appellate System, The Geographic Boundaries of the
Several Judicial Circuits: Recommendations for Change (Dec. 1973),
reprinted in, 62 F.R.D. 223, 228 (1973). These sentiments were echoed
more recently in the United States Judicial Council's Long Range Plan
for Federal Courts (1995): ``'Circuit restructuring should occur only
if compelling empirical evidence demonstrates adjudicative or
administrative dysfunction in a court so that it cannot continue to
deliver quality justice and coherent, consistent circuit law in the
face of increasing workload.'' Id. at 44.
Proponents of the reorganization of this Circuit have identified no
compelling evidence that the current structure and performance of the
Ninth Circuit satisfies the requisite high standards justifying change.
We thus were heartened to see that the report of the Commission on
Structural Alternatives (the ``White Commission'') embraced these
conclusions and that the pending legislation does not seek a division
of this Circuit. Indeed, the White Commission's analysis of the more
frequently proposed options for splitting the Ninth Circuit amply
demonstrates the problems associated with any attempt to disturb an
appellate court that is operating reasonably well.
While S. 253 does not propose, a split of the Ninth Circuit, it
does adopt the White Commission's recommendation that the Circuit be
reorganized into three ``divisions'' staffed by judges located both
within and outside that division, that the state of California be split
among two divisions (thereby subjecting litigants in the state to
potentially conflicting interpretations of state law and encouraging
problematic forum shopping), and that significant cases raising far
reaching issues of law be resolved by newly created ``division en banc
courts,'' with Circuit wide en banc adjudication limited to cases.
involving inter-divisional conflicts. It is our firm belief that this
proposed restructuring of the Circuit is ill advised and would create a
great many more problems than it solves. Our view is premised on the
conclusions and concerns set forth in the attached analysis.
Practitioners have been well served over the years by the existence
of an independent and high caliber federal appellate system that has
worked to minimize the incidence of unwarranted, disparate
interpretations of law. Any determination that the Ninth Circuit, or
any other court of appeal, requires restructuring should result from
the presentation of data and evidence establishing compelling reasons
to change the status quo, and riot from any particular political or
ideological agenda.
While we applaud the White Commission's opposition to the split of
the Ninth Circuit and its willingness to consider creative vehicles for
improving the operation of our courts of appeals, we question the
wisdom of the proposed statutorily mandated creation or divisions. This
de facto split of the Ninth Circuit will require the Circuit to
implement an unprecedented structure that has grave implications for
businesses and litigants in California and throughout the Circuit. In
lieu of this unworkable proposal, we urge Congress to allow the Circuit
the flexibility and opportunity to continue to experiment with
innovative reforms designed to improve the operations of this and other
federal appellate courts in the coming years.
We greatly appreciate your consideration of our views on this
important issue and welcome the opportunity to provide any further
information that may be of assistance.
Very truly yours,
Lee Smalley Edmon, Therese M. Stewart,
President, Los Angeles County Bar
Association.
President, Bar Association of San
Francisco.
Todd F. Stevens, Linda Wight Mazur,
President, San Diego County Bar
Association.
President, Beverly Hills Bar
Association.
James I. Fisher, George M. Duff, III,
President, Alameda County Bar
Association.
President, Federal Bar Association,
Northern District of California
Chapter.
Thomas E. Holliday, Julie McCoy Akins,
President, Federal Bar Association,
Los Angeles Chapter.
President-Elect, Federal Bar
Association, Orange County Chapter.
Jonathan R. Ivy, Kateesa Charles Davis,
President, John M. Langston Bar
Association.
President, Women Lawyers
Association of Los Angeles, Inc.
Linda S. Peterson, Paula Teske,
President, Women Lawyers
Association of Los Angeles, Co-President, LHR: The Lesbian Gay
Bar Association.
Hugh Biele,
Co-President, LHR: The Lesbian and
Gay Bar Association.
______
Los Angeles County Bar Association,
Los Angeles, CA, April 16, 1999.
Re: Senate Bill 253
Hon. Dianne Feinstein,
U.S. Senate, Hart Senate Office Bldg., Washington DC.
Dear Senator Feinstein: I am writing in response to your letter of
March 10, 1999, soliciting input from the Los Angeles County Bar
Association on pending legislation that seeks to restructure the Ninth
Circuit Court of Appeals. As the largest voluntary bar organization in
the Circuit; our Association has, followed this issue with great
interest and, based on the views and experiences, of our members, has
grave concerns about the unprecedented proposed divisional
reorganization of the Ninth Circuit. Our view that a divisional
arrangement would create a great many more problems than it solves is
shared by over a dozen other bar associations located throughout
California.
This Association and the many other bar organizations joining in
the enclosed analysis wholeheartedly agree with your observation that
the proposed split of California among divisions would be troublesome,
especially for practitioners and businesses who practice in this state.
Our opposition to the suggested split of the Circuit into divisions
does not, however, stem solely from the proposed placement of
California in two different divisions. Rather, the attached analysis
reflects our fundamental disagreement with the notion that the Circuit
would benefit from a divisional structure.
Even if California were placed in a single division, the proposed
divisional structure would create a cumbersome, inefficient, and
problematic system for the handling of appeals that would adversely
impact the administration of justice in this Circuit. Isolating
California in a single division not only would fail to address the many
problems posed by a divisional structure (as discussed in greater
detail in the attached analysis), but also would implicate other
concerns. Indeed, we question what benefits would be gained from the
formation within the Circuit of a division of the size that would be
needed to handle the immense appellate caseload arising from
California's appeals. Moreover, we worry that this divisional
arrangement could serve as a precursor for a California-only Circuit--a
structure that would deprive the state of the advantage associated with
decisionmaking by geographically diverse Courts of Appeal.
Additionally, the isolation of our state over time could lead to
difficulties in obtaining the funding and support needed to staff the
increasing appellate load associated with the heavy volume of
litigation arising in
* * * * * * *
In sum, this Association, as well as the other bar groups who join
in the attached analysis, view a divisional arrangement for this or any
other Circuit as generally unacceptable, whether or not California is
split among divisions. As such, we would not favor the proposed
alternative divisional configuration set forth in your March 10 letter.
We greatly appreciate your willingness to consider the views of the
organized bar on the pending legislation and would be happy to discuss
this issue of tremendous import to attorneys in our Circuit with you
further should you have any additional questions.
Sincerely yours,
Lee Smalley Edmon,
President, Los Angeles County Bar Association.
[Editor's note: The completed material was not available at
presstime.]
______
Governor of the State of California,
April 15, 1999.
Re: Senate Bill 253
The Honorable Orrin Hatch,
U.S. Senate, Russell Building, Washington, DC.
Dear Orrin: I wish to register my opposition to Senate Bill 253,
which would divide the Ninth Circuit into three regional divisions and
split California in half. Unfortunately, I believe that the bill would
promote forum shopping and foster confusion over the application of
federal law in California, impacting litigation ranging from admiralty
to the decennial redistricting of California.
I have written to you previously regarding my concerns over
proposals to split the Ninth Circuit. In my view, these proposals did
nothing to address the rising caseload per judge (but would merely
divide the existing judges between two circuits) and amounted to no
more than judicial gerrymandering: Limiting the judges from other
western states who would hear California cases and vice-versa. This
bill does the same, and is worse because it would divide the West Coast
into not two but three segments, each with its own precedents not
binding on the other regions, and would add another layer of judicial
review to appellate proceedings, adding delay and expense to
adjudications.
My principal objections are as follows:
1. increased unpredictability of the law in california and the west
coast
The bill would split the Ninth Circuit into three regional
divisions, splitting California in the process. Under the bill, ``[t]he
decisions of 1 regional division [would] not be regarded as binding
precedents in the other regional divisions.'' (S. 253, sec. 2(b)(5).)
Thus, these three divisions--each with their separate
jurisprudence--would subject the West Coast--and California--to
differing interpretations of the law. For instance, a regional
division's determination that a California law was unconstitutional
would not bind another region that covered another part of California.
This would make the law on the West Coast inconsistent and
unpredictable.
2. encouragement of forum shopping
The regional spilt would also encourage forum shopping,
particularly in connection with constitutional challenges to state laws
and statewide initiatives, as litigants searched for the appellate
division that most favored their case.
3. parochialism
While the new northern division of the Ninth Circuit would be
composed of five states (Alaska, Idaho, Montana, Oregon, and
Washington), the new southern division would be composed of only one
and one-half states (Arizona and half of California), which would lack
the balance and objectivity that geographical diversity in a multi-
state circuit fosters. The Hruska Commission in 1973 concluded that a
judicial circuit should be ``composed of at least three states'' and
that ``circuits should contain states with a diversity of population,
legal, business and socioeconomic interests.'' For this reason, making
California a part of a region composed of one and one-half states--or
making California a single regional division--would deprive California
of the objectivity that a multi-state federal circuit is designed to
foster. (And amending the bill to make California a single regional
division would achieve none of the purported objectives of the bill,
since California accounts for over 60 percent of the Ninth Circuit's
caseload.)
4. more delays and costs
The bill would create another appellate layer: a new Circuit
Division composed of 13 judges, which could review any final decision
rendered in any of the circuit's divisions that ``conflict on an issue
of law with a decision in another division of the circuit'' (S. 253,
sec. 2(c)), but only if ``en banc review of the decision has been
sought and denied by the division.''
This adds a fifth layer to the current four levels of trial and
appellate proceedings: (a) the district court adjudication; (b) the
appeal before a three-judge panel; (c) the request for hearing en banc;
(d) the request for review by the Circuit Division; and (e) the request
for review by the United States Supreme Court.
Moreover, not only does the Circuit Division add another layer of
review but its jurisdiction over ``conflicting'' decisions is too
narrow to promote a coherent jurisprudence within Ninth Circuit: It
would only review decisions which conflict another division of the
court, but would not review decisions that were merely erroneous or
which conflict with another circuit's decision. And since the judicial
composition of the Circuit Division will change at regular intervals,
even the resolution of conflicting cases will not be given consistent
treatment.
I submit that reform of the appellate courts' en banc procedures
(e.g., amending them to police errant decisions by permitting, but not
requiring, en banc review of any erroneous decision) would better
promote more consistent decisions within a circuit. At present, an
appellate court is authorized to grant en banc review only to secure
uniformity of its decisions or where ``the proceeding involves a
question of exceptional importance.'' (Fed. R. App. Pro. 35)
I recognize, Orrin, that this bill seeks to implement the
recommendations of the Commission of Structural Alternatives for the
Federal Court of Appeals, but I note that the Commission's
recommendations is itself inconsistent with its primary conclusions,
including the following:
1. The Commission states: ``Having a single court interpret and apply
federal law in the western United States, particularly in federal
commercial and maritime laws that govern relations with the other
nations on the Pacific Rim, is a strength of the circuit that
should be maintained.'' Yet, under the bill, the Ninth Circuit is
divided into three regions, and each region's decisions do not bind
the other regions.
2. The Commission found: ``Any realignment of circuits would deprive
the west coast of a mechanism for obtaining a consistent body of
federal appellate law, and of the practical advantages of the Ninth
Circuit administrative structure.'' Yet, this bill deprives the
west coast of a consistent body of federal appellate law. A
transaction in San Francisco will not be governed by the Appellate
law in Los Angeles, and neither will be bound by the appellate law
applicable to Oregon and Washington.
3. The Commission observed: ``There is no persuasive evidence that
the Ninth Circuit * * * is not working effectively, or that
creating new circuits will improve the administration of justice in
any circuit or overall.'' Does this absence of evidence not argue
against dividing the Ninth Circuit into three autonomous regions?''
4. The Commission exclaims: There is one principle that we regard as
undebatable: It is wrong to realign circuits * * * because of
particular federal decisions or particular judges.'' But judicial
gerrymandering is what the bill would achieve.
Indeed, the bill is in direct conflict with each of these
conclusions. While this bill may be motivated, in part, by concerns
over certain Ninth Circuit decisions, gerrymandering the circuit to
cordon off certain judges will only deprive the west coast of the
benefit of the objectivity that a broader geographical diversity
necessarily engenders.
It will confuse the law, harm the interest of California, and
promote forum shopping. I urge you to defeat this bill.
Very truly yours,
Governor Pete Wilson.
______
The State Bar of California,
San Francisco, CA, May 17, 1999.
Re: Senate Bill 253--Federal Ninth Circuit Reorganization Act of 1999
The Honorable Dianne Feinstein,
Hart Senate Office Building, Washington, DC.
Dear Senator Feinstein: On behalf of the State Bar of California, I
am writing to reaffirm our opposition to the proposed restructuring of
the United States Court of Appeals for the Ninth Circuit. The creation
of three autonomous regional adjudicative divisions would not only
divide California, it would impair the development of consistent
circuit law, add an additional level of appeal and provoke attendant
delay and expense, eliminate the present participation of all judges
circuit-wide in resolving circuit law, and preclude the Ninth Circuit
from effectively conducting its ongoing reevaluation and
experimentation with innovations leading to greater efficiency and
effectiveness.
The Commission on Structural Alternatives for the Federal Courts of
Appeals rightly and strongly recommended that the Ninth Circuit not be
split. However, it undermined that recommendation with an unfounded
proposal for three adjudicative divisions. That proposal is opposed by
lawyers throughout California, as evidenced, for example, by the letter
of April 14, 1999 to you, and accompanying analysis, on behalf of the
Los Angeles County Bar Association, the Bar Association of San
Francisco, the San Diego County Bar Association, the Beverly Hills Bar
Association, the Alameda County Bar Association, the Federal Bar
Association (Northern District of California, Los Angeles, and Orange
County chapters), the John M. Langston Bar Association, the Black Women
Lawyers Association of Los Angeles, Inc., the Women Lawyers of Los
Angeles, and The Lesbian and Gay Bar Association.
The United States Department of Justice vigorously opposed
divisional restructuring and stated ``that proposal would have
potentially adverse repercussions for the administration of justice in
the Ninth Circuit and, ultimately, across all federal courts of
appeal.'' Similar opposition was expressed by the Federal Bar
Association, the Association of the Bar of the City of New York, and
the Chicago Council of Lawyers and many other organizations and
individuals.
We urge your continued opposition to the Commission's misguided
proposal and S. 253 and any similar rider or bill.
Sincerely,
Raymond C. Marshall,
President.
______
State Capital,
Sacramento, CA, July 7, 1999.
Re: S. 253 (Federal Ninth Circuit Reorganization Act of 1999)
The Honorable Dianne Feinstein,
U.S. Senate, New Senate Office Building, Washington, DC.
Dear Senator Feinstein: I urge you to oppose Senate Bill 253. This
proposed legislation to drastically reorganize the United States Court
of Appeals for the Ninth Circuit is unwarranted, unwise and detrimental
to the interest of California.
The legislation would subdivide the appellate function of the Ninth
Circuit into three semi-autonomous regional divisions and split the
State of California in half. The northern part of the State would be
placed in one division and the southern part of the State, in another
division. The courts rulings in one division would not be binding in
the other division.
I find this proposal to split the State alarming. Not only is the
proposal untried and unproven, it creates a separation between Northern
and Southern California that is inimical to what I am attempting to
accomplish as Governor. We need to bring our people together and de-
emphasize our differences. Senate Bill 253 does just the opposite.
Furthermore, splitting California between two divisions would
likely result in inconsistent federal ruling's on important California
laws--one ruling covering the north and a different ruling covering the
south. As a result, businesses operating in California would be subject
to conflicting state laws, making it more costly to do business in
California.
The proposed legislation is also likely to foster more disputes and
more litigation. For example, if a state law were found
unconstitutional in the division covering Northern California, the
decision would be binding only in that part of the State, leaving us
with a law that is valid in the south and invalid in the north. While
Senate Bill 253 creates a Circuit Division to resolve conflicts between
divisions, that body is powerless to do anything until such time as an
inconsistent decision is rendered by the division covering Southern
California. Thus, it will be necessary to file a second suit in the
Southern Division to achieve uniformity in the law.
The legislation will also promote forum shopping in the State. We
can expect a litigant who operates throughout the State to bring its
lawsuit in a division that is perceived to be more friendly to the
litigant's Interest. Similarly, if a party gets a bad result in one
division, we can also foresee that the party will bring a lawsuit in
the other division in an effort to get a better result.
In addition, the method proposed in the legislation to resolve
conflicting rulings among the divisions is costly and burdensome and
will delay the administration of justice. A litigant who is
dissatisfied with a division's ruling and who believes that the ruling
conflicts with a ruling in another division is required to take two
additional steps. First, the litigant must request an en banc
determination of the ruling by the judges in the division. Following
such determination (or denial of the request for en banc hearing), the
litigant must then seek a determination by the Circuit Division.
Whether or not to grant a hearing is within the discretion of the
Circuit Division.
At a time when litigation is altogether too expensive and time
consuming for California residents and businesses, we should be seeking
ways to simplify the resolution of conflicts, not add to the complexity
of the process. The proposed legislation would add a burden to
Californians and citizens of other states within the Ninth Circuit that
is not borne by litigants in the rest of the country.
We should also be extremely cautious in changing the structure of
government without compelling reasons for doing so, particularly when
the structure has endured for many years. Here, the case for splitting
California has not been made. Indeed, the White Commission acknowledged
in its report that there is no persuasive evidence that the Ninth
Circuit (or any other circuit, for that matter) is not working
effectively * * *.''
I must emphasize that this is not a partisan issue. Former Governor
Pete Wilson recently sent a letter to Senator Orrin Hatch registering
his opposition to Senate Bill 253 because ``the bill would promote
forum shopping and foster confusion over the application of federal law
in California, impacting litigation ranging from admiralty to the
decennial redistricting of California.''
Uniformity, stability and predictability of federal and state law
are the foundation blocks of an orderly and healthy government and
economy. The new and untested proposed structure for the Ninth Circuit
would by its very design, undermine those key values and jeopardize our
citizens' faith and confidence in the judicial process. I urge you to
reject this legislation as not being in the best interests of the
citizens of California.
Sincerely.
Gray Davis.
__________
U.S. Court of Appeals Ninth Circuit,
San Francisco, CA, July 21, 1999.
The Honorable Charles E. Grassley,
Chair, Subcommittee on Administration Oversight and the Courts, U.S.
Senate, Hart Senate Office Building, Washington, DC.
Dear Senator Grassley: I submit this letter with the request that
it be included in the record of the hearing scheduled for July 16, 1999
before the Subcommittee on Administrative Oversight and the Courts on
the ``Review of the Report by the Commission on Structural Alternatives
for the Federal Courts of Appeals regarding the Ninth Circuit and S.
253, the Ninth Circuit Reorganization Act.''
Chief Judge Hug will testify at the hearing and has submitted a
written statement which incorporates a full and careful analysis of the
White Commission Report, and hence of the problems raised by S. 253. I
agree with Chief Judge Hug's analysis.
As Chief Judge Hug points out, the Commission Report strongly
recommends that the Ninth Circuit not be split because there is no
persuasive evidence that the Ninth Circuit is not working effectively,
and restructuring the Ninth Circuit would entail substantial costs.
The Commission's second major recommendation (that the adjudicative
functions of the Ninth Circuit Court of Appeals be divided among three
essentially independent divisions) offers a solution to a problem that
does not exist. The Commission Report repeatedly states that there is
no empirical evidence and no substantial basis for a subjective
opinion, that the Ninth Circuit and its Court of Appeals are not
functioning effectively. The Commission nonetheless recommends the
immediate and radical alteration of time-tested adjudicative procedures
of the Court of Appeals with no evidence that the court is not
operating effectively. The Commission's position is directly contrary
to the conclusion reached in three prior surveys of the federal court
system and, perhaps more significantly, to the policy adopted by the
Judicial Conference of the United States only a few years ago that
major restructuring should not be considered unless compelling
empirical evidence demonstrates the inability of a court to operate
efficiently. That policy is based upon good common sense.
The Court of Appeals for the Ninth Circuit decides approximately
\1/6\th of all federal appellate litigation in our country. The
Commission acknowledges that there is no evidence that the size of the
court or the load it carries justifies the major restructuring the
Commission proposes. If nothing else is clear, it is absolutely certain
that the proposed restructuring is radical, inevitably disruptive, and
permanent. If the proposed, untested system does not work, the circuit
will divide along the lines underlying the Commission's proposed
adjudicatory divisions.
The Commission looks not to the present situation but to the
future, and rests its case upon the major premise that the Court of
Appeals for the Ninth Circuit will become too large and its inevitable
growth will prevent it from handling efficiently the workload that will
develop. The Commission sets out a pattern it hopes will provide the
model for the new federal court system.
There is no evidence, none, to support the Commission's thesis.
The Commission concedes that there is no evidence that the Court of
Appeals for the Ninth Circuit is not operating effectively, except in a
few minor and easily corrected respects. There is no evidence that it
will become ``too big'' to continue to do so. The truth is that no one
knows the optimal number of judges for a Court of Appeals. When our
court grew from 3 to 7 in 1937, critics worried ``that a court of seven
members with a wide range of ideological and jurisprudential viewpoints
could not provide justice across the circuit's massive geographical
jurisdiction.'' As the circuit grew from 7 to 9, 9 to 13, 13 to 23, and
23 to 28, critics assured the world that the court had exceeded its
maximum practicable size before the new judges arrived. They were
always wrong.
Professor Charles Allen Wright has written that when he clerked in
the Second Circuit in 1949 and 1950 , ``it seemed perfectly clear that
the maximum number of judges a court of appeals could have without
impairing its efficiency was six'' the number of judges then on the
Second Circuit. As Professor Wright said later ``in 1950 when we made
these comments we were illustrating in striking fashion deToqueville's
admonition against confusing the familiar with the necessary.''
The predictions of the Judicial Conference have been no better. In
1964 the Conferees adopted the position that the maximum number of
judges on a court of appeals was 9. Eight years later it drew the line
at 15. In 1977 Chief Justice Burger suggested, as the Conference had,
that the magic number was 9--the size of his District of Columbia Court
of Appeals. He stated ``by any measurement of logic, reason, or
standards of judicial administration, the Ninth Circuit cannot function
effectively as one unit with 13 circuit judges.'' Today every circuit
other than the First Circuit has a court of appeals of 11 or more. I
predict that the Commission will turn out to be just another in this
long line of unreliable prophets.
Unless and until those who propose splitting this or any other
court are required to demonstrate that in fact, not simply in theory,
the court has exceeded the number of judges that will permit it to
operate effectively, unsound predictions of calamity and the senseless
destruction of valuable institutions will persist.
It is significant but a little frightening to realize that by the
Commission's own admission, one of the principal bases for its
conclusion that the Court of Appeals for the Ninth Circuit is or soon
will be too large is a survey of circuit judges across the country in
which the majority expressed the opinion that the optimal size of a
court of appeals was between 11 and 17. Nowhere does the Commission
mention the fact that \2/3\ of the judges and lawyers of the Ninth
Circuit are satisfied that the present court of appeals is functioning
well with 28 judges, and ought to be left alone.
One of the many problems with the Commission's report and the
statute that would implement it, is that they impose their preferred
procedure draconianly. The system they propose must be in place within
6 months of enactment, and is to be permanent--a provision to terminate
the divisional system after seven years was eliminated in the final
report.
The possible minor problems the Commission saw in the way in which
the Court of Appeals for the Ninth Circuit is presently operating can
be, should be, and are being corrected by the Court itself, in
accordance with its long continued practice of periodic reexamination
and improvement of its own procedures. Chief Judge Hug has appointed a
committee of judges, lawyers and academics which, with our Rules
committee of experienced practicing lawyers, is charged with examining
possible problems and dealing with them. The first proposal, already
implemented, is to recognize at least some legitimacy in the argument
for regionalization by providing that an appeal to any of the three
divisions of the Court will be heard by a panel that includes at least
one judge from that division--if there is something in the local air or
local mores that really affects the case, the panel will have the
benefit of it. I will admit to some misgivings based upon my own notion
that federalism is a difficult concept to maintain at best and we must
be rareful of any move in the direction of substituting local points of
view for national law. In any event, the committee is examining
regional calendaring, monitoring opinions to assure consistency with
circuit law, changes in the present en banc process, reducing our
backlog, and what we can do, if anything, to further reduce our
reversal rate in the Supreme Court.
Finally, I would like to comment on a recent proposal to avoid the
conflicts that will inevitably arise if California is divided between
two or more divisions as proposed by the Commission. The new proposal
is that California be made the sole state in one of the three
adjudicative divisions. There is no empirical evidence justifying this
suggestion, just as there is none supporting the other restructuring
proposals advanced by the Commission. Virtually all of the objections
to the Commission's restructuring proposals generally apply to this one
as well. All the arguments previously discussed regarding the cost and
disruption that would inevitably result from the Commission's plan are
equally applicable. Appeals, for example, would be just as complicated,
costly, time-consuming and ineffective. Even the problem of conflicts
within the circuit over questions of federal law would remain. The
problems are well summarized in the Los Angeles County Bar
Association's letter to Senator Feinstein dated April 16, 1999, which
has been submitted for inclusion in this record.
The proposed California division would also suffer from a serious
imbalance between judges and cases. California as a separate unit would
have half of the federal judgeships in the circuit to deal with \2/3\
of the circuit's appeals. In a very real sense, California is the root
of the whole controversy. Much of the pressure for circuit division
arises from animosity toward California based upon its size and
dominance. A ``bash California'' attitude is common in other states--no
state wants to be alone with a giant. Isolating California in a single
adjudicatory division would tend to focus this negative feeling with
its negative consequences on California itself. The remainder of the
circuit would suffer as well; losing the perspective of California's
unique position within the western region would diminish the circuit's
capacity to develop and maintain national law--the federalizing
function that is central to the concept of regional courts of appeals.
As presently constituted, the Ninth Circuit serves that function well.
Virtually all of the conflicts that tend to pull our nation apart are
represented in one part of the Ninth Circuit or another. Judges drawn
from all parts, sitting on common panels in the decision of cases,
provide a powerful instrument for finding the accommodations that keep
the national law alive and well. Moreover, I think everyone, especially
the proponents, realize the suggested arrangement is almost inevitably
a precursor to a division of the circuit, a result strongly opposed by
the Commission itself.
I respectfully suggest S. 253 should be rejected.
Sincerely,
James R. Browning.
__________
Crosby, Heafey, Roach & May,
San Francisco, CA, July 13, 1999.
Re: S. 253 (Ninth Circuit Reorganization Act)
Hon. Charles E. Grassley,
Chair, Subcommittee on Administrative Oversight and the Courts, U.S.
Congress, Hart Senate Office Bldg., Washington, DC.
Dear Senator Grassley: I would like to register my opposition to S.
253 (The Ninth Circuit Reorganization Act), and urge you not to
restructure the Ninth Circuit Court of Appeals. I am an appellate
lawyer who has handled appeals almost exclusively for the last 25 years
and thus have appeared in many appellate courts, including the Ninth
Circuit. I was recently elected as President-Elect of the American
Academy of Appellate Lawyers and am a Past President of the California
Academy of Appellate lawyers--both of these organizations are composed
of experienced appellate lawyers. I am past chair of the Ninth Circuit
Advisory Committee on Rules and Internal Operating Procedures, which is
responsible for recommending revisions and drafting Ninth Circuit rules
and internal operating practices. I have also been a consultant to the
National Center on State Courts on appellate court issues, where I
looked at the procedures and performances of many states appellate
courts. I am also a member of the California Appellate Process Task
Force which is studying all aspects of California's intermediate
appellate courts. I do not speak here for any of these organizations,
and the views I am expressing below are entirely my own. However, I
thought that, as you consider my opinions, you should know a little
about my background.
S. 253 tracks the final report of the Commission on Structural
Alternatives for the Federal Courts of Appeals. My comments therefore
address that report. Perhaps the most significant of the Commission's
conclusions is that there is no basis to split the Ninth or any other
circuit. It is essential that Congress recognize that splitting
circuits is not a viable way to deal with circuit court growth or help
the circuits move forward into the next century. I applaud the
Commission's conclusion on that point. On the other hand, it is
disappointing that the Commission accepted the notion, by recommending
the creation of autonomous divisions within the Ninth Circuit, that
federal circuit courts should be perceived as local tribunals, where
primarily judges who reside in that geographical area hear cases in
that region.
We should be striving to make federal courts, including appellate
courts, faster, cheaper and more uniform in their decisions. This bill
creating semi-autonomous local courts goes in the wrong direction on
all counts. The added layers of en banc review are likely to add delay
and cost to the appellate process. And splintering the circuit into
three rigid divisions with none of them (as well as the district courts
in them) bound by the decisions of either of the other two, virtually
guarantees less uniformity and greater conflict than we have now.
Why create drastic and permanent structural changes in the Court?
In my view, neither the Commission nor anyone else has demonstrated
serious deficiencies in the Ninth Circuit that would require the unique
structural changes that S. 253 would mandate. It appears that the
proposed structural changes are based on the perceptions of a few
rather than on hard data that show serious problems in the current
structure.
There is always room for improving any of the federal courts. My
own experience, however, is that the Ninth Circuit operates about as
well on all levels as any other appellate court that I have appeared
before or whose operations I know about. In fact, one of the
distinguishing features of this Court is its willingness to listen to
constructive suggestions and make procedural changes to improve its
processes. It is far and away the best appellate court I know of in
that regard. I urge Congress not to mandate structural changes based on
the skimpy perceptional and anecdotal feelings of a few. Those feelings
are not a sufficient basis to make fundamental changes, particularly
when those changes threaten to take us in the wrong direction on the
important issues of delay, cost uniformity of decisions.
Sincerely,
Peter W. Davis.
__________
State of Alaska,
Office of the Governor,
Juneau, AK, July 13, 1999.
The Honorable Charles Grassley,
Chairman, Senate Judiciary Subcommittee on Administrative Oversight and
the Courts, U.S. Senate, Hart Senate Office Building,
Washington, DC.
Dear Senator Grassley: I write this letter to voice strong support
and urge approval of S. 253. I appreciate your consideration of S. 253
to adopt the recommendations of the Commission on Structural
Alternatives for the Federal Courts as they affect the Ninth Circuit
Court of Appeals. I also would like to reiterate the state's
suggestions to modify the commission's recommendations that we
submitted to the commission last year.
Alaskans have long observed that the Ninth Circuit is the largest
in the nation, both in territory and population. It spans nine states
and two territories, serving a population of more than 45 million
Americans and spanning a land area larger in size than Western Europe.
It serves 15 million more people than the next largest circuit and
about 20 million more people than the average population served by
other courts of appeals.
The Ninth Circuit has told the Senate Judiciary Committee it takes
four months longer to complete an appeal in the Ninth Circuit as
compared to the median length of time nationally. Its annual caseload
has grown from 2,300 filings to more than 8,000 filings since 1973.
However, Alaska's caseloads constituted only two percent of the court's
caseload in 1997. Only 12 circuit judges were assigned to all the
Alaska cases published in 1997.
Given the relatively few Alaska cases compared to the whole,
litigants in Alaska are far less likely than litigants in the heavily
populated states to draw panels with judges who are familiar with
Alaska. This is aggravated by the fact that Alaska cases often involve
complex federal statutes the judges do not encounter in the other 98
percent of the court's caseload, the Alaska Native Claims Settlement
Act (ANCSA), and the Alaska National Interest Lands Conservation Act
(ANILCA).
These statutes apply only to Alaska, so the issues they generate--
which have totaled more than 100 cases in the Ninth Circuit over the
past 20 years--arise only in Alaska cases. The issues these cases
address have varied tremendously, from the interpretation of revenue-
sharing provisions to the question of extinguishment of Indian country.
Each case required an understanding of the history, purposes, and
context of complex legislation. Despite the court's myriad decisions
involving ANCSA and ANILCA, Alaska litigants raising claims under these
statutes are highly unlikely to be assigned a panel of judges with a
depth of understanding of these federal laws because of the large
number of circuit, senior, and visiting judges.
The Commission on Structural Alternatives agreed that there are
problems regarding the Ninth Circuit's operations and recommended that
the Circuit be split into three adjudicative divisions. S. 253
implements this and other pertinent commission recommendations. We ask
that the following amendments which would be beneficial to Alaska be
made prior to passage of S. 253:
The provision for a circuit division should be eliminated.
The proposed circuit division permits non-regional judges to
preponderate the northern perspective. Judges lacking adequate
knowledge about an enormous area like Alaska do a disservice to
the citizens of the state in applying federal law here. In
general, appellate courts are regional courts, and for the
overwhelming majority of cases, are the courts of last resort.
For those cases from Alaska that conflict with cases from the
central or southern division of the Ninth Circuit, however, the
northern division will not be permitted to act as the regional
court of last resort. The circuit division will step in and
essentially act as a quasi-Supreme Court, with a southwestern
rather than a national viewpoint. The effect would be as though
one circuit stepped in to clarify the law for another. This is
the job of the Supreme Court, not that of a different regional
court. For the few cases that conflict with cases from another
division, litigants should be able to petition the Supreme
Court directly without going through the extra layer that the
circuit division would create. The existence of a circuit
division also seems likely to prompt forum shopping among the
divisions. Litigants unhappy with the holding of a particular
case will be motivated to bring subsequent cases raising the
same issue in a different division, thus creating the
opportunity to convince the circuit division to overrule the
undesirable precedent.
S. 253 should require that judges reside within the division
they serve. The residency requirement for only a ``majority of
judges'' would continue to produce some panels with a minority
of the judges residing in the northern division. Therefore
judges from the southwest United States still could determine
the outcome of cases in the northern district. The current
residential distribution of the court might necessitate that
some judges sit outside the division of their residence
initially, but new appointments to the circuit should be
required to reside in the division with the opening.
Alternatively, the bill could simply proclaim a ten-year
transitional period before all judges would be required to live
within their division of assignment. Presumably the non-
residential judges could be reassigned to their own districts
within this time, as vacancies open.
Thank you for your consideration of our views. Should you need
further information, please contact John Katz in my Washington, D.C.,
office.
Sincerely,
Tony Knowles,
Governor.
__________
U.S. District Court,
District of Oregon,
Portland, OR, July 13, 1999.
Re: S. 253 Hearing--July 16, 1999
Senator Charles E. Grassley,
Senate Hart Office Building, Washington, DC.
Dear Senator Grassley: I am authorized to represent to you that a
strong majority of the District Court Judges in the District of Oregon
are in favor of an actual split of the Ninth Circuit.
We do agree with our Chief Procter Hug, whom we greatly admire,
that the bill before you, S. 253, is flawed. As you know, it would
create three ``adjudicative divisions'' rather than create one or more
additional circuits.
The Commission's detailed report certainly justifies the creation
of new circuits while the adjudicative division appears to be an
interim costly compromise.
The adjudicative divisions suggested by the Commission are logical
divisions for what has long been discussed as the ``three way split.''
That is, the creation of two additional circuits.
It seems to us to be far more logical to create two additional
circuits rather than ``adjudicative divisions'' which have drawn such
criticism.
Very truly yours,
James A. Redden.
__________
Sunrise Research,
Washington, DC, July 15, 1999.
The Honorable Charles E. Grassley,
Judiciary Subcommittee on Administrative Oversight and the Courts, U.S.
Senate, Senate Hart Office Building, Washington, DC.
Dear Mr. Chairman: Based upon almost a half century of public
service, both in the State of Oregon and in the United States Senate, I
have become more and more aware of the need to bring problems down to a
manageable size so that we might best serve our areas.
The current Ninth Circuit Court of Appeals is too big to perform
that function. You are well aware of the population in the Ninth
Circuit, its caseload, and other easily accessible details involving
the demographics of that circuit. By any measure, it is too big.
Because of its very bigness, it is unwieldy and inconsistent.
I, therefore, strongly support S. 253 that would divide the Ninth
Circuit into three regional divisions. While I might prefer actually
separate circuits, I am well aware of the opposition to that option.
The divisions, therefore, that Senator Murkowski has proposed in S. 253
is a ``happy compromise.''
Over the years I have known many of the judges on the Ninth
Circuit. Some of them I had a modest hand in appointing. Without
exception, those that I have known personally have indicated to me that
the current court, because of its size, simply doesn't function as well
as a court should function.
I, therefore, hope that you will not only give serious
consideration to S. 253, but will report it out from your subcommittee
with a favorable recommendation.
Sincerely,
Bob Packwood.
__________
U.S. Court of Appeals for the Third Circuit,
Pittsburgh, PA, July 30, 1999.
Senator Charles E. Grassley,
U.S. Senate, Chairman, Senate Judiciary Subcommittee on Administrative
Oversight and the Courts, Senate Hart Office Building
Washington, DC.
Dear Senator Grassley: I have noted in news reports that the
Subcommittee on Administrative Oversight and the Courts, which you
chair, has begun consideration of the proposed reorganization of the
Ninth Circuit. As you may recall from our meetings of the Federal
Courts Study Committee, some ideas on restructuring the courts of
appeals were discussed then.
The Report of the Commission on Structural Alternatives for the
Federal Courts of Appeals contains some novel recommendations that are
worthy of serious consideration. The suggestions for establishing
divisions within the Ninth Circuit offer an unusual opportunity to test
the feasibility of reorganization on a national basis.
I thought you might have some interest in comments of mine which I
am submitting to the Journal of Law & Politics (University of Virginia
School of Law) for their forthcoming issue devoted to the subject. I
have enclosed an advance copy for your perusal.
I often think back to the interesting days when the Federal Courts
Study Committee was engaged in its work. I particularly recall with
pleasure associating with you and your staff members at that time. I
hope you are in good health and enjoying your productive work on the
Judiciary Committee. Best personal wishes.
Sincerely,
Joseph F. Weis, Jr.
______
Nine Divided by Three: A Formula for Unification?
Joseph F. Weis, Jr. \1\
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\1\ United States Circuit Judge, United States Court of Appeals for
the Third Circuit; former Chairman, Federal Courts Study Committee;
former Chairman, Advisory Committee on Civil Rules; former Chairman,
Federal Judicial Conference Standing Committee on Rules of Practice and
Procedure. This essay is based in part on a Statement by Judge Weis
before the Commission on Structural Alternatives for the Federal Courts
of Appeals on April 24, 1998.
The mission of the United States Courts of Appeals should be to
interpret and apply federal law in a uniform and coherent manner. The
present structure of the appellate system does not enhance that goal.
The recommendations contained in the Final Report of the Commission on
Structural Alternatives for the Federal Courts of Appeals are solid
steps towards improvement. Yet, they too could be improved by placing
more emphasis on reducing conflicting decisions.
This essay briefly traces the development of particular problems
that plague the appellate system and then outlines a workable
alternative--a unified court system. Further discussion touches on the
most noteworthy aspects of the Commission's recommendations, as well as
their shortcomings in the area of decisional conflicts. Ultimately, the
recommendations, subject to continuing study, are worthy of
experimentation in the search for an appellate system equipped for the
future.
i
In 1789, the speed of transportation and communication was measured
in terms of horses and sailing vessels. These two factors heavily
influenced the structure of the newly created federal judiciary and the
circuit system that exists today.
By the time the Evarts Act was enacted in 1891, transportation and
communication had improved. Railroads and steam ships supplanted
buggies and schooners. The telegraph had speed but extremely limited
capacity for extensive communications. The telephone was in its
infancy. Despite these advances, the federal circuit system and the
newly created courts of appeals could not escape the grasp of
regionalization and associated problems of fragmentation.
The past 100 years, however, have witnessed dramatic technological
growth. Transportation is now measured by the hour rather than by days
or weeks. Electronic communications are instantaneous and, unlike the
telegraph, suitable for voluminous transmissions. The constraints on
transportation and communication so influential in 1789 and 1891 simply
do not exist in this era of jet air travel, e- mail, fax, interactive-
video transmission, electronic document filing, and automated legal
research.
These profound changes should liberate thinking about the proper
structure of the federal intermediate appellate courts. Today, most
lawyers do not restrict their practices to geographical boundaries and
are accustomed to presenting cases in courts all over the country.
Similarly, it matters little whether judges fly from their home
chambers in, say, Chicago for arguments in Denver, New York, New
Orleans, or Jacksonville. The speed at which their draft opinions are
transmitted via e-mail is the same no matter what the destination.
Consequently, the regionalization that is so characteristic of, and so
ingrained in, the current thinking on court structure should be
drastically minimized, if not abandoned altogether.
There is another, more corrosive agent eating away at the current
system that requires attention--one that cannot be overcome simply by
technological improvements. Soon after the Evarts Act was enacted, the
Circuit Courts of Appeals began to consider themselves separate
entities maintaining what might be called ``diplomatic relationships''
with their counterparts. This approach was encouraged by the Supreme
Court's unfortunate decision in Mast Foos & Co. v. Stover Manufacturing
Company, in which the Court refused to apply issue preclusion when
presented with two different circuit court of appeals' decisions
involving the same patent.\2\ Considering the two courts independent of
one another, the Supreme Court concluded that comity between the two
forums, rather than the compulsion of stare decisis, was the overriding
factor. In retrospect, it is clear that the Mast Foos Court missed the
opportunity to adopt the principle that the various Circuit Courts of
Appeals were part of a national system and, as such, required to apply
federal law on a uniform basis.
---------------------------------------------------------------------------
\2\ 177 U.S. 485 (1900).
---------------------------------------------------------------------------
Thus began the balkanization of federal law and the establishment
of the regional judicial fiefdoms that prevail in the Courts of Appeals
today. The drafters of the Evarts Act envisioned the Supreme Court as
the arbiter of intercircuit conflicts. At the time, that was neither an
unreasonable nor unrealistic expectation. Congress, however, failed to
anticipate the explosion of federal court litigation.\3\ At present,
only a small number of the ever-increasing disparate decisions by the
Courts of Appeals are reconciled by the Supreme Court. Practically
speaking, this means that litigants in various parts of the country are
governed by federal case law that differs from circuit to circuit.
---------------------------------------------------------------------------
\3\ See e.g., Administrative Office of the United States Courts,
``Federal Judicial Caseload: A Five-Year Retrospective'' (1998).
---------------------------------------------------------------------------
The ``law of the circuit'' concept took root some years ago to
combat intracircuit conflicts. This practice, in full bloom today,
requires appellate panels within a particular court of appeals to
follow the precedent set by earlier panels of the same court.\4\ A
similar obligation is imposed on the district courts within the
circuit. This ``law of the circuit'' approach was a step in the right
direction, but paradoxically, seems to have strengthened and perhaps
even legitimatized the precedential independence of the various courts
of appeals.\5\ The goal of national uniformity in the interpretation of
federal law has unfortunately been lost in the process of encouraging
circuit uniformity.
---------------------------------------------------------------------------
\4\ See e.g., United States Court of Appeals for the Third Circuit,
Internal Operating Procedure 9.1 (1994).
\5\ The Court of Appeals are adamant in their adherence to this
concept. See e.g., Taylor v. Charter Medical Corp., 162 F.3d 827, 832
(5th Cir. 1998); Menowitz v. Brown, 991 F.2d 36, 40 (2d Cir. 1993) (per
curiam) (``until the Supreme Court speaks, the federal circuit courts
are under duties to arrive at their own determination of the merits of
federal questions presented to them * * * [i]f a federal court simply
accepts the interpretation of another circuit without [independently]
addressing the merits, it is not doing its job); In re Korean Air Lines
Disaster, 829 F.2d 1171, 1175 (D.C. Cir. 1987).
---------------------------------------------------------------------------
Litigants and practitioners are understandably distressed by the
resulting uncertainties. Worse yet, this balkanization has fostered the
birth of administrative agency non-acquiescence. Executive agencies
complain that their efforts to apply policy on a national level are
frustrated by inconsistent rulings among the various courts of appeals.
Agencies cope by simply refusing to follow decisions with which they
disagree. Thus, there exists the unseemly spectacle of government
agencies openly defying the Courts of Appeals. In one notable instance,
the United States Postal Service presented the same issue to twenty
different courts and eight courts of appeals, losing in every instance
until the Supreme Court finally ended the travesty by handing the
agency the ultimate defeat.\6\
---------------------------------------------------------------------------
\6\ Franchise Tax Board of California v. United States Postal
Service, 467 U.S. 512, 519 n. 12 (1984). See generally A. Leo Levin &
Susan M. Leeson, ``Issue Preclusion Against the United States
Government,'' 70 Iowa L. Rev. 113, 127-29 (1984).
---------------------------------------------------------------------------
Intercircuit conflicts are a continuing and vexing problem.\7\
Despite efforts to give it an attractive face by invoking the
questionable benefits of a ``percolation'' process, its pernicious
drawbacks have not diminished. There have been some scholarly
suggestions that intercircuit conflicts are actually not all that
numerous. Most of those studies, however, focused on the Supreme
Court's docket, a method that fails to account for the many cases in
which, for a variety of reasons, the parties cannot or opt not to seek
certiorari. Much more realistic are the estimates given by Thomas C.
Goldstein, Esq., author of the monthly compilation ``Circuit Split
Roundup,'' appearing in the Legal News section of The United States Law
Weekly. Mr. Goldstein estimates that two to three thousand such
conflicts exist.\8\ They are a natural outgrowth of the hodge-podge
circuit system.
---------------------------------------------------------------------------
\7\ The evils of intercircuit conflicts are discussed in Joseph F.
Weis, Jr., ``Disconnecting the Overloaded Circuits: A Plug for a
Unified Court of Appeals,'' 39 St. Louis U.L.J. 455 (1995).
\8\ Telephone Interview with Thomas C. Goldstein, Esq., author of
``Circuit Split Roundup,'' and Associate at Boies & Schiller, LLP (July
9, 1999). Mr. Goldstein cautions readers that ``[i]t is not possible to
collect each and every `circuit split' because there are varying
degrees of disagreements between courts, and some opinions are written
so as to minimize the appearance of conflicts.''
---------------------------------------------------------------------------
In addition to their often varying articulations of federal law,
the various courts of appeals also differ in terms of size. This has
long been a concern. Unfortunately, the modus operandi of reformers has
been to tinker with the system, applying band-aid solutions that merely
perpetuate the size disparities and promote further balkanization. What
is needed, and that need is ever-increasing in urgency, is a
comprehensive plan for the entire system of intermediate courts.
ii
The following five basic concepts may serve as guideposts to
prepare a plan for the future of the federal intermediate court system:
First, the Supreme Court should retain the ultimate power to
declare law in the federal system.
Second, the intermediate court structure should provide uniform
national interpretation and application of federal law. Construction of
state law should be a secondary consideration, one that is not
permitted to impair the primary goal of federal law uniformity.
Third, deliberate creation of conflicts among the federal appellate
courts should be discouraged. Inadvertent conflicts should be resolved
by an internal unit of the intermediate court. Aberrant rulings of
various components should be subject to review, not only by the Supreme
Court, but by an internal body within the intermediate appellate court
itself.
Fourth, while three-judge panels are a reasonably sized unit for
initial appellate review, they should operate within a larger unit. In
such a system, pre-filing circulation of precedential opinions within
the larger unit would reduce the likelihood of aberrant decisions while
securing the benefits of broader consideration. Experience suggests
that nine is a desirable size for such a unit, which for clarity's
sake, will be referred to as a ``division.''
Judges should be appointed to a specific division and expected to
serve on it during their tenure. Each division, having its own chief
judge and clerk, would be assigned appeals from designated districts
and administrative agencies. In some instances, a division could have
its cases assigned based on subject matter jurisdiction--an approach
similar to that used in the present Court of Appeals for the Federal
Circuit.
Because travel and communications no longer pose burdensome
limitations, the various divisions would be assigned appeals with an
eye towards equalizing the workload. Although geographical contiguity
or state borders could be considered, workload would become the
dominant concern. Because state law issues and diversity cases should
be subordinate to achieving uniformity and coherency in federal
decisional law, the allocation of appeals from existing districts to a
particular division need not be shackled by state boundaries. Thus, for
example, depending on the case load, one division could be allocated
appeals from the Middle and Eastern Districts of Pennsylvania, while
another could be assigned appeals from the Western District of
Pennsylvania, the Southern District of Ohio, and the Northern District
of West Virginia.
Fifth, the unified Court of Appeals would be presided over by a
chief .judge, having general administrative supervision of the unified
court. He or she would also preside over an entity we could label the
Central Division. That body would resolve divisional conflicts and
review asserted aberrant decisions of the various divisions.
Judges of the Central Division would be drawn from the various
divisions. Seniority and experience would be considered. Central
Division Judges could be selected by the chief judge of the unified
court in consultation with the various divisions. Central Division
members could serve in that capacity for short or lengthy terms. All
judges of the unified court would receive the same salary and hold the
same rank.
This, of course, is only a general outline of what would be an
improved and more efficient structure designed to cope not only with
today's caseload but the larger ones anticipated for the future. This
is not the occasion to elaborate fully because my intent is only to
offer the generalized concept of a unified court of appeals for
consideration.\9\ Although the idea tends to elicit gasps of
incredulity from most circuit judges, empirical evidence that such a
court structure would function efficiently would temper that
skepticism.
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\9\ For a more in-depth discussion, see ``Disconnecting the
Overloaded Circuits,'' supra.
---------------------------------------------------------------------------
iii
In December 1998, the Commission submitted a report to Congress and
the President recommending that existing Court of Appeals for the Ninth
Circuit be organized into ``three regionally based adjudicative
divisions.'' \10\ Because of its size, the Ninth Circuit, \11\ unlike
other Courts of Appeals, offers a laboratory for innovation and
improvisation. The organizational concept described in the Commission's
Report offers a splendid opportunity to test the practicalities of a
unified court.
---------------------------------------------------------------------------
\10\ Final Report of the Commission on Structural Alternatives for
the Federal Courts of Appeals 40 (Dec. 18, 1998) (``Final Report'').
\11\ I will use ``Ninth Circuit'' to refer to the Court of Appeals
although I recognize that the Commission recommends that the Ninth
Circuit as a geographic entity not be split. See id. at 29-30.
---------------------------------------------------------------------------
The Commission has boldly departed from the straight-jacket of
conventional wisdom in several respects. Foremost is its recognition
that the court system's adjudicative and administrative functions are
separable and that the organizations performing these distinct tasks
need not be coterminous.\12\
---------------------------------------------------------------------------
\12\ Id. at 46.
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Also noteworthy is the proposal that appeals from the federal
district courts within California be assigned to different
divisions.\13\ In taking this step, the Commission has implicitly
recognized that the primary concern of the United States Courts of
Appeals is federal law. Too often in the past, the concept of routing
appeals from district courts in the same state to different appeals
courts has been denounced as unthinkable. That attitude, however, had
its origins in a by-gone era when federal law was far less pervasive
and diversity jurisdiction had an importance beyond that of today.
---------------------------------------------------------------------------
\13\ Id. at 43-44.
---------------------------------------------------------------------------
The Commission's plan is based mainly on geographic contiguity.
Because that configuration will result in some workload inequality, the
size of each division's judicial component is to be flexible, falling
between seven and eleven judges.\14\ Although there is much to be said
for equality of dockets, the Commission's decision to emphasize
geographical contiguity is a reasonable choice worthy of
experimentation.
---------------------------------------------------------------------------
\14\ Id. at 43. This is an appropriate size which should do much to
enhance coherence and consistency, one of the primary goals of the
proposed restructuring. See id. at 47-48.
---------------------------------------------------------------------------
The Commission seeks to promote collegiality between the judges of
the Court of Appeals by requiring that they periodically sit with other
divisions.\15\ This should reduce the effect of provincialism. Notably,
the Federal Courts Study Committee recommended that judges of the
courts of appeals sit, on an exchange basis, on other courts as a means
to promote experience in court administration.\16\ The current
proposal, however, envisages longer exchange periods--an even better
opportunity to enhance uniform adjudication as well as collegiality.
---------------------------------------------------------------------------
\15\ Final Report, at 43.
\16\ Report of the Federal Courts Study Committee, 155 (April 2,
1990) (``Study Committee Report'').
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Worthy of special commendation is the retention of the
administrative arms of the Ninth Circuit as they now exist.\17\ It is
but common sense that the library, clerk's office and central staff
attorneys office remain intact to serve each and every division. For
the convenience of the Bar, regional sub-offices can be established
without impairing the efficiency of the circuit offices. Apparently, in
view of the Ninth Circuit's present practice of hearing arguments in
various cities within its jurisdiction, there will be no need for
additional physical structures.
---------------------------------------------------------------------------
\17\ Final Report, at 46.
---------------------------------------------------------------------------
For all its practical vision, however, there is one central
weakness in the Commission's proposal that threatens its effectiveness.
The Commission recommends that ``each division would function as a
semi-autonomous decisional unit'' and that ``decisions made in one
division would not bind any other division.'' \18\ By including this
principle in its plan, the Commission neglects to take advantage of one
of the greatest opportunities offered in the laboratory setting of the
Ninth Circuit--the chance to promote uniformity in the interpretation
of federal law.
---------------------------------------------------------------------------
\18\ Id. at 43.
---------------------------------------------------------------------------
According to the Commission, ``[h]aving a single court interpret
and apply federal law in the western United States, particularly the
federal commercial and maritime laws that govern relations with other
nations on the Pacific Rim, is a strength of the circuit that should be
maintained.'' \19\ It explains this ``strength'' by highlighting that
``the Atlantic seaboard and Gulf Coast are governed by law determined
by courts of appeals in six separate circuits, which gives rise to
complaints about intercircuit conflicts from practitioners in the
maritime bar, who regularly bemoan the differences in interpretation of
federal law in circuits from Maine to Texas.'' \20\Somewhat
inconsistently, the Commission acknowledges that ``the specter of
inconsistent interpretations of federal law may be unattractive'' but
concludes that this evil ``is one that exists throughout the federal
system, and one that circuit splitting would not ameliorate.'' \21\
---------------------------------------------------------------------------
\19\ Id. at 49-50.
\20\ Id. at 50.
\21\ Id. at 44.
---------------------------------------------------------------------------
These statements are undoubtedly correct, but instead of
resignation to an undesirable situation, one can aim for improvement.
The Commission did recognize that it would be ``highly undesirable if
the Northern and Southern Divisions established different rules in an
admiralty issue.'' \22\ Indeed, the Middle Division should have been
included in that statement, and the subject matter not confined to
admiralty. Federal law should be uniform throughout the country, not
just in the ``western United States.''\23\
---------------------------------------------------------------------------
\22\ Final Report, at 44 n.99.
\23\ Particularly bothersome is the Commission's suggestion that it
``would not appear to matter whether all divisions had the same rule of
law with respect to factors to be considered in granting an adjustment
for abuse of trust under the Sentencing Guidelines'' when the very
purpose behind the Guidelines was to promote uniformity. See id.
---------------------------------------------------------------------------
That is not to say, however, that the Commission ignored the
conflicts issue. First, in a commendable step, it proposed the creation
of a ``Circuit Division'' to resolve inter-divisional conflicts.\24\
Second, the Report urged continuation of the staff attorneys office in
its present form. With circuit-wide jurisdiction, this office would
operate as an aid to maintaining doctrinal coherence. Third, the
assignment of judges to serve intermittently on different divisions
would also tend to encourage consistency in decisional law.
---------------------------------------------------------------------------
\24\ Id. at 45-46.
---------------------------------------------------------------------------
Any discussion of conflicts must recognize that they fall into two
general categories--inadvertent and deliberate. The former will occur
despite the best efforts of all concerned and consequently, a body akin
to the proposed Circuit Division must exist even if deliberate
conflicts are eliminated. One method of avoiding inadvertent conflicts
is pre-filing circulation of all precedential opinions within a
division. The relatively small size of the Commission's recommended
divisions makes this desirable practice feasible. As a further aid to
consistency, the Court might consider designating one of its senior
staff attorneys to be included in the pre-filing circulation of all
divisions. That person could alert the opinion writer to existing
precedents inside or outside the division that might present a
conflict.
An expanded pre-filing circulation in some situations would also
assuage the fear that different divisions would yield inconsistent
interpretations of California law--a point raised by some opponents of
splitting the Ninth Circuit. Should the proposed Middle District, for
example, intend to file an opinion with significant pronouncements on
California law, a draft could be circulated among the judges of the
Southern Division as well. Thus, all of the judges concerned with
California law would be kept abreast and given an opportunity to
comment. Together, these steps could help avoid inadvertent conflicts
while simultaneously minimizing some of the work in each division.
Human errors are understandable, unavoidable causes of inadvertent
conflicts and, to that extent, are excusable. However, the maintenance
of uniformity in federal law is a powerful--and to some, an
unanswerable--argument against the creation of deliberate, inter-
divisional conflicts. It is particularly unfortunate that the
Commission did not recommend a prohibition against that practice.
Yet, a ban against creating deliberate conflicts need not--and
probably should not--require legislative authorization. Such a
practice, as was the ``law of the circuit'' doctrine, may be developed
by the courts. Thus, the Commission's recommendations do not preclude
the divisions themselves from implementing a policy against the
creation of deliberate conflicts. While an argument is often made that
creating a deliberate conflict is necessary, even desirable when the
pre-existing precedent is aberrant or, for substantial reasons, should
no longer be followed, the remedy in such situations lies in the
framework proposed by the Commission--i.e., referral to the Circuit
Division.
Deliberate conflicts, whether between circuits or divisions,
threaten federal law uniformity. In considering the Commission's
proposal, Congress should reassess the recommendation that the
divisions not be bound by each others' case law. Failing that, the
divisions themselves should act promptly to halt this pernicious
practice, as it remains a formidable obstacle impeding improvement in
the national appellate system.
iv
If the proposed reorganization of the Ninth Circuit takes effect
and proves as workable as its advocates--including myself--expect it to
be, it will open up some intriguing prospects. One would be the
formation on a nationwide basis of a unified United States Court of
Appeals. Another possibility, as Professor John B. Oakley mentioned in
his report to the Commission, of a more incremental nature, would be
the consolidation of a number of the existing circuits into larger,
``jumbo circuits'' with similar divisional structures.\25\
---------------------------------------------------------------------------
\25\ John B. Oakley, ``Memorandum on Divisional Organization of the
United States Court of Appeals for the Ninth Circuit'' (July 18, 1998),
reproduced in Working Papers of the Commission on Structural
Alternatives for the Federal Courts of Appeals, at 145-66.
---------------------------------------------------------------------------
None of these structural proposals will remove a single case from
the appellate dockets. Yet, the elimination of conflicting opinions
would reduce, to some extent, the task of resolving appeals. It would
also have the more important result of improving public confidence in
the work of the appellate courts.
The Commission's recommendation to reorganize the Ninth Circuit
into three adjudicative divisions is a progressive move that would
improve the administration of justice in the federal intermediate
appellate courts. Congress should adopt these recommendations as they
pertain to the Ninth Circuit, and let the experimentation continue.\26\
---------------------------------------------------------------------------
\26\ The creation of larger circuits by consolidation was one of
the possibilities discussed by the Federal Courts Study Committee in
addition to a ``unified'' court, and other alternative. See Study
Committee Report, supra. at 122-23.
The potential for mergers itself raises some interesting questions.
For example, would the Fifth and the Eleventh Circuits decide that
their amicable divorce a few years ago was a mistake and decide to live
together once again? Having been created by a merger not long ago,
would the Federal Circuit now join with the D.C. Circuit, a resident of
the same city and thus, a partner with no geographical disincentives?
---------------------------------------------------------------------------
__________
Munger, Tolles & Olson LLP,
Los Angeles, CA, August 19, 1999.
Re: July 16th Hearing on Ninth Circuit Reorganization
The Honorable Charles E. Grassley,
U.S. Senate Committee on the Judiciary, Subcommittee on Administrative
Oversight and the Courts, Hart Senate Office Building,
Washington, DC.
Dear Senator Grassley: I have recently reviewed my testimony and
found it to be inaccurate in one particular. In making the point that
fewer judges of the Ninth Circuit would participate in the en banc
process for individual cases under the proposed reorganization, which
is the case, I unintentionally overstated my argument and wish to
correct it.
While it is true that under existing procedures every active judge
on the Court has the opportunity to participate in the decision as to
whether an individual case receives en banc review and under the
proposed reorganization only the active judges assigned to one of the 3
divisions would participate, it is not true, as I stated, that only the
``resident judges'' (those residing in the division) would vote on the
en banc decision. Rather, all active division judges, but not all
active circuit judges, as is now the case, would participate.
i very much regret this unintentional, inaccurate overstatement
found on page 55 of the transcript, from the last 3 words of line 17 to
the first word on line 22.
Thank you for allowing me to correct the record.
Sincerely yours,
Ronald L. Olson.
__________
Prepared Statement of Hon. Gordon H. Smith, a U.S. Senator From the
State of Oregon
Mr. Chairman, and members of the Committee, I thank you for this
opportunity to provide testimony in support of S. 253, the Federal
Ninth Circuit Reorganization Act of 1999. I would also like to extend
my appreciation to the Honorable Judge Diarmuid F. Scannlain, United
States Circuit Judge for the Ninth Circuit for his forthrightness, and
willingness to provide his professional perspective on this important
issue facing the Ninth Circuit.
Mr. Chairman, the Ninth Circuit, encompassing about 1.4 million
square miles, faces an uncertain future in terms of its ability to
serve a growing population, and ever-growing caseload. Serving more
than 50 million people, the Ninth Circuit Court of Appeals handles over
8,500 filings per year--with a reversal rate of about 95 percent. By
the year 2010, the Ninth Circuit population will increase in size by 43
percent--which under the current conditions, could only result in a
significant increase in caseload and reversal rate. While I understand
that Judge O'Scannlian and I face similar opposition from our
respective colleagues with respect to our position on this issue, I
believe that S. 253 is an equitable solution that will ultimately
result in a more consistent and predictable Ninth Circuit Court of
Appeals.
In 1997, Congress charged the Commission on Structural Alternatives
for the Federal Courts of Appeals to study and make recommendations to
Congress with respect to changes in the boundaries and structure of the
Ninth Circuit Court of Appeals. The Commission recommended that
``Congress enact a statute organizing the Ninth Circuit Court of
Appeals into three regionally based adjudicative divisions--the
Northern, Middle and Southern--each division with a majority of its
judges resident in its region, and each having exclusive jurisdiction
over appeals from the judicial districts within its region.'' The
legislation you have before today, adopts those recommendations, and
does so without sacrificing the efficacy of the court.
S. 253 is a rational approach that would divide the Ninth Circuit
into three regional divisions of the Northern, Middle and Southern,
each having exclusive jurisdiction over cases within its region.
However, the court will continue to have one administrative office, and
judges will primarily remain within their regions. Importantly,
Northwest cases would be decided by Northwest judges.
As my predecessor, Senator Mark O. Hatfield stated, ``The Ninth
Circuit's size has created serious problems: too many judges spending
more time and money traveling than hearing cases, a growing backlog of
cases which threaten to bury each judge, a dangerous inability to keep
up with current case law, a breakdown in judicial collegiality and,
most importantly, a failure to provide uniformity, stability and
predictability in the development of federal law throughout the Western
region. It is increasingly clear that these problems cannot be solved
by the reforms already implemented by the Court.''
Mr. Chairman, I commend you for your timely consideration of this
important legislation and for this opportunity to testify in support of
S. 253, the Ninth Circuit Reorganization Act of 1999.
__________
Prepared Statement of Prof. Arthur D. Hellman
Summary
1. Although the Commission states that the Ninth Circuit Court of
Appeals ``should continue to provide the West a single body of
federal decisional law,'' its plan subverts that goal by abandoning
circuit-wide stare decisis. This radical step would authorize, if
not encourage, the creation of intracircuit conflicts.
2. The proposed ``Circuit Division'' would do little to preserve
uniformity. The Commission's plan places substantial constraints on
the Division's authority. In all likelihood, decisions of the
Circuit Division would be so infrequent, and their effect on the
law of the division so limited, that ``the law of the circuit''
would shrink to near-insignificance.
3. The Commission plan is thus not a compromise. Those who want to
divide ``the Ninth Circuit'' have never cared about the circuit as
such; what they have sought is a division of the court of appeals.
And that, for all but a handful of cases, is what the Commission
plan would give them.
4. The rationale for the Commission plan is that ``the law-declaring
function of appellate courts requires groups of judges smaller than
the present Ninth Circuit Court of Appeals.'' But the arguments
offered in support of the rationale do not stand up under scrutiny.
5. The Commission insists that judges on a large appellate court
cannot adequately monitor other judges' decisions. The flaw is that
the Commission lumps together two very different activities:
keeping up with circuit law, which is something done by individual
judges, and monitoring panel opinions, which is done by the court
as an institution. Judges today need not keep up with circuit law
in order to make use of opinions when they are relevant. Effective
monitoring does not require that all judges keep up with all
opinions. The evidence indicates that Ninth Circuit judges can and
do monitor the opinions rendered by their colleagues.
6. The Commission argues that ``large appellate units have difficulty
developing and maintaining consistent and coherent law.'' But it
disdains empirical research and relies instead on ``perceptions''
and its own (unspecified) experience. That is far too little to
justify the radical restructuring that it proposes.
______
Mr. Chairman and Members of the Subcommittee: I appreciate this
opportunity to express my views on S. 253 and the Final Report of the
Commission on Structural Alternatives for the Federal Courts of Appeals
(White Commission). S. 253, the Ninth Circuit Reorganization Act, would
implement the Commission's recommendation regarding the Ninth Circuit.
The Commission's proposal would keep the Ninth Circuit intact but
divide the court of appeals into three ``semi-autonomous'' adjudicative
units.
The Commission's plan gives the appearance of compromise and
moderation. But appearances are deceiving. The Commission plan is not a
compromise; it gives one side almost everything it wants. And far from
being moderate, it embodies a novel approach to ``the law-declaring
function of appellate courts'' that is flawed both in conception and in
execution.
This leap into the unknown might be justified if the Commission had
demonstrated the existence of a problem of serious dimensions that
could not be dealt with in any other way. On the contrary, in
explaining its key conclusion--that ``the law-declaring function of
appellate courts requires group of judges smaller than the present
Ninth Circuit Court of Appeals''--the Commission offers remarkably
little in the way of proof. The Commission simply does not make the
case for the radical restructuring that it proposes.
Introduction
Five experiences have shaped my views on S. 253 and the White
Commission report. First, from 1973 through 1975 I served as deputy
executive director of the Commission on Revision of the Federal Court
Appellate System (Hruska Commission). In that capacity I drafted the
report that recommended that the Ninth Circuit be divided into two new
circuits. (For a discussion of why that recommendation is no longer
persuasive, see Hellman, Dividing the Ninth Circuit: An Idea Whose Time
Has Not Yet Come, 57 Mont. L. Rev. 261, 264-74 (1996).)
Second, in 1978-79 I was the director of the central legal staff of
the Ninth Circuit Court of Appeals. My responsibilities included
devising and implementing procedures that would assist the court to do
its work more effectively, and in particular to meet the new needs
created by the expansion of the court from thirteen to twenty-three
active judges.
Third, in the late 1980s I directed a study by fourteen legal
scholars and political scientists of the structural and procedural
innovations implemented by the Ninth Circuit during the period 1976-
1988. The fruits of that study were published by Cornell University
Press in 1990; the title of the book is ``Restructuring Justice: The
Innovations of the Ninth Circuit and the Future of the Federal
Courts.''
Fourth, as stated by the Federal Judicial Center in the report
submitted to Congress on Structural and Other Alternatives for the
Federal Courts of Appeals, I have conducted ``the only systematic study
of the operation of precedent in a large circuit.'' This research has
been published in several articles, including Jumboism and
Jurisprudence: The Theory and Practice of Precedent in the Large
Appellate Court, 56 U. Chi. L. Rev. 541 (1989).
Finally, earlier this year, Chief Judge Hug appointed me to a 10-
member Evaluation Committee whose mission is ``to examine the existing
policies, practices and administrative structure of the Ninth Circuit
Court of Appeals, in order to make recommendations to its judges to
improve the delivery of justice in the region it serves.''
It is an honor to serve on the Evaluation Committee and to work
with the Ninth Circuit Court of Appeals in seeking better ways of
carrying out the processes of appellate adjudication. However, I do not
speak for the court or any other institution; the views expressed here
are my own.
i. the commission's plan: contradictions and conundrums
The Commission offers a plan that would retain the Ninth Circuit
but divide its court of appeals into three ``semi-autonomous''
divisions. The plan contains four elements:
1. Regional jurisdiction over appeals. The present Ninth Circuit
Court of Appeals would be reorganized into three ``regionally based
adjudicative divisions.'' Each division would hear the appeals
filed from that geographical area.
2. Regional assignment of judges. Each division would include seven
to eleven court of appeals judges in active status. ``A majority of
[the] judges serving on each division would be residents of the
districts over which that division has jurisdiction, but each
division would also include some judges not residing within the
division, assigned randomly or by lot for specified terms of at
least three years.''
3. Regional performance of the law-declaring function. ``Each
regional division would function as a semi-autonomous decisional
unit.'' This entails two changes from the current arrangement. The
circuit-wide en banc process would be abolished; the functions now
performed by the Ninth Circuit's en banc court would be performed
by en banc courts for each division. More important, divisional
decisions--whether by panels or by the en banc court--would be
binding only within the division.
4. Conflict resolution by a ``Circuit Division.'' In addition to the
three regional divisions, the Commission plan would establish a
``Circuit Division * * * whose sole mission would be to resolve
conflicting decisions between the regional divisions.'' The Circuit
Division would be composed of the chief judge of the circuit and
twelve active judges--four from each of the regional divisions--who
would be selected by lot and who would serve for staggered three-
year terms.
The Commission argues that its plan ``is the most principled and
effective way to resolve the debate about the Ninth Circuit and its
court of appeals.'' (Final Report at 57.) However, analysis of the
various elements leads to a very different conclusion. The Commission
may be correct in saying that its proposal ``addresses the adjudicative
concerns that have animated calls to split the circuit.'' But its
confidence that the plan ``will achieve the legitimate ends of * * *
those who seek to preserve [the circuit]'' is sorely misplaced.
A. Abandonment of circuit-wide stare decisis
The most radical aspect of the Commission's proposal is the
abandonment of circuit-wide stare decisis. Today, the Ninth Circuit,
like all of the other federal courts of appeals, follows the rule that
panel decisions are binding on all subsequent panels unless overruled
by the Supreme Court or by the court of appeals en banc. Under the
Commission's plan, decisions handed down in one division would be
binding only within that division.
If there was any doubt about the Commission's commitment to this
element of its plan, it is eliminated by the Commission's response to
the comments by Chief Judge Hug on the preliminary draft of the
Commission report. Judge Hug, speaking for a majority of the judges of
his court, urged the Commission to modify its plan by making panel
decisions binding throughout the circuit ``unless * * * overruled by a
circuit-wide en banc court.'' The Commission emphatically rejected this
suggestion, stating that this modification ``would leave the court of
appeals essentially unchanged as an adjudicative body, and would defeat
the purpose of the divisional structure that we recommend.''
Abandonment of circuit-wide stare decisis would be a logical step
if the Commission were recommending that the Ninth Circuit be kept
intact solely for administrative purposes and that three separate
courts be created within the circuit for adjudication. But that is not
the Commission's plan, nor does the Commission reject the premise that
the law within the Ninth Circuit should be uniform. On the contrary,
the Commission states at the outset that the Ninth Circuit Court of
Appeals ``should continue to provide the West a single body of federal
decisional law.'' (Final Report at iii.)
How, then, can the Commission propose a regime under which
``[d]ecisions made in one division would not bind any other division''?
The Commission gives two answers, perhaps three (with the third buried
in a footnote).
First, the report contemplates that decisions of other divisions
would ``be accorded substantial weight as the judges endeavor to keep
circuit law consistent.'' As a prediction of judicial behavior, this is
well grounded in experience. Circuit judges today generally respect the
decisions of other circuits, and there is no reason to think that
judges in a restructured Ninth Circuit would not accord similar weight
to decisions of other divisions.
On the other hand, there is a difference between respecting
precedent and being obliged to follow it. I have no doubt that judges
today often follow precedents they do not like, simply because it is
their obligation to do so. If stare decisis did not operate circuit-
wide, judges would be free simply to reject precedent from another
division. The Commission plan would thus authorize, if not encourage,
the creation of intracircuit conflicts.
This brings us to the Commission's second and more important
response: the creation of a ``Circuit Division.'' The Commission
insists that the Circuit Division--``a small, stable, but still
representative subset of the court's judges * * * focused on conflict
resolution''--can insure the maintenance of ``desirable circuit-wide
uniformity.'' (Final Report at 5 1.) This response raises two
questions. What does the Commission mean by ``desirable circuit-wide
uniformity''? And how much uniformity would the Circuit Division bring?
To those questions I now turn.
B. Jurisdiction and authority of the circuit division
The keystone of the Commission plan is the Circuit Division.
Without the Circuit Division, there could be no pretense that the Ninth
Circuit Court of Appeals remained intact in anything but name. Each of
the regional divisions would be totally autonomous except for the
cumbersome process of rotating judges among the regions. Thus, it is
essential to understand how the Circuit Division would operate.
The first thing that stands out is the extraordinary constraints
the Commission's plan places on the authority of the Circuit Division.
The jurisdiction of the Division would be limited to resolving
``square'' conflicts between the regionally organized divisions.
Further, the Circuit Division could not take any case on its own
motion; it could act only in response to an application for review
filed by a party.
1. Only ``square'' conflicts
What does the Commission mean by ``square'' conflicts? One
plausible interpretation is that the Commission refers to situations in
which one division explicitly refuses to follow a decision handed down
in another division. Explicit rejection is the only treatment of
circuit precedent now forbidden to court of appeals panels. It would be
logical to say that when a panel does take advantage of the freedom
conferred by the divisional arrangement, the decision would be subject
to review by the Circuit Division to eliminate the disagreement.
Suppose, though, that the panel (or the regional en banc court)
distinguishes a decision from another division that reached a contrary
result in a similar case. The losing litigant argues that,
notwithstanding the purported grounds of distinction, the panel's
resolution conflicts with the other division's ruling. Could the
Circuit Division find that a square conflict exists and accept the
application for review.
If the answer is ``yes,'' that is an invitation to tiresome
wrangling over whether two decisions really are in conflict. In this
regard, it is instructive to consider the experience of the Florida
Supreme Court. That court is vested with jurisdiction to review ``any
decision of a district court of appeal * * * that expressly and
directly conflicts with a decision of another district court of appeal
* * * on the same question of law.'' Commentators describe the
jurisdiction as ``disputatious'' and note that ``the existence of
conflict often is not so certain, meaning that a brief [seeking review]
must engage in a lengthier and more convoluted argument to establish
the Court's discretion to hear the case.'' See Gerald Kogan & Robert
Craig Waters, The Operation and Jurisdiction of the Florida Supreme
Court, 18 Nova L. Rev. 1151, 1225, 1238 (1994). That is hardly a model
to be emulated.
What makes the arrangement even more problematic in the Ninth
Circuit context is that the judges of the Circuit Division would be
questioning the good faith or competence of their own colleagues. If
the Circuit Division agrees to review a decision that has distinguished
an opinion handed down by another regional division, that would be
tantamount to saying that the later panel has failed to recognize that
the earlier opinion involved the same issue and required the same
result. I suspect that the Circuit Division judges, taking into account
the effect of such a declaration on collegiality within the circuit and
on the legitimacy of the system, would be reluctant to take that step.
These considerations suggest that the jurisdiction of the Circuit
Division would be limited to acknowledged conflicts--conflicts created
by the explicit refusal of one regional division to follow the
precedent established by another division. That limitation, however,
would substantially undercut the effectiveness of the mechanism.
Indeed, the Circuit Division would be far less able than the existing
limited en banc court to maintain uniformity within the circuit--a
mechanism that the White Commission finds wanting.
Under the existing arrangement, Ninth Circuit judges can and do
grant rehearing en banc to resolve tensions in circuit law caused by
inconsistencies in doctrines or outcomes less blatant than explicit
rejection. See, e.g., Hale v. Arizona, 993 F.2d 1387, 1389 (9th Cir.
1993) (en banc) (``We consider these questions en banc to resolve the
tension between [two panel decisions].''); Townsend v. Holman
Consulting Corp., 929 F.2d 1358, 1365 (9th Cir. 1990) (en banc)
(overruling panel decision, thus obviating need to maintain ``unstable
and awkward'' distinction drawn by later case).
When the Commission issued its draft report in October 1998, it was
unclear whether the narrower or broader interpretation of the Circuit
Division's jurisdiction was intended. The Final Report appears to
endorse the narrower reading. In explaining how the arrangement it
proposes ``will ensure clearer, more consistent circuit law,'' the
Commission states that ``conflicts * * * between divisions will be more
sharply highlighted,'' and that the Circuit Division will ``choose
between articulated conflicting points of view.'' (Final Report at 49;
emphasis added.) This language implies that the Circuit Division would
be limited to cases in which a panel explicitly rejected the ``point of
view'' adopted by one of the other divisions. As long as the panel
found grounds of distinction--even ``unstable and awkward'' grounds--
the Circuit Division would stay its hand.
2. Only upon litigant request
The authority of the Circuit Division would be further constrained
by the Commission's insistence that the jurisdiction of the Division
could be invoked only by a party to a case--and ``only after the panel
decision had been reviewed by the division en banc or a divisional en
banc had been sought and denied.'' Here, too, the Commission plan casts
aside one of the mechanisms used by the Ninth Circuit today to maintain
uniformity: the sua sponte panel-initiated en banc call.
Recent decisions illustrate the utility of this procedure. In 1998,
the court took a group of cases en banc sua sponte ``to rethink our
previous decisions'' on the preemption of state tort claims by the
Airline Deregulation Act. Charas v. Trans World Airlines, Inc., 160
F.3d 1259 (9th Cir. 1998). The en banc opinion explained, ``Because of
the need to clarify the law in this area, these cases were taken en
banc after they were assigned to a three-judge panel, but prior to the
panel's rendering a decision.'' The en banc court issued a unanimous
opinion overruling two panel decisions and establishing the law for the
entire circuit. This process would not have been possible under the
Commission's plan. More recently, the court accepted a panel's sua
sponte en banc call to resolve ``an irreconcilable conflict in this
circuit's case law regarding the standard of review for rulings on the
prosecution's use of peremptory challenges.'' Tolbert v. Gomez,--F.3d--
(9th Cir. 1999) (No. 97-55004). The court eliminated the inconsistency
without waiting for a litigant's request and without waiting for the
panel to issue an opinion.
C. The commission's narrow vision of uniformity
Supporters of the Commission plan are caught on the horns of a
dilemma. If the Circuit Division can review decisions even when the
regional panel insists that the other division's ruling is
distinguishable, it opens the door to time-consuming and uncollegial
disputation over whether the new case creates a ``square'' conflict.
But if the Circuit Division is limited to hearing cases in which one
division has explicitly rejected another division's precedent, it will
be powerless to eliminate less blatant inconsistencies of the kind that
arouse concern today.
Is there any escape from this quandary? The White Commission gives
what it may regard as a partial answer. In a little-noticed footnote--
not included in the October 1998 draft report--the Commission reveals
that its vision of ``uniformity'' is a narrow one. The Commission's
text refers to ``conflicts on issues for which circuit-wide (or state-
wide) uniformity is important.'' (Emphasis added.) The footnote
explains:
[W]e envision that [the function of the Circuit Division]
will be focused on maintaining uniformity on issues of law that
matter to the entire circuit or to a state (such as California)
that is in more than one division. For example, it would be
highly undesirable if the Northern and Southern Divisions
established different rules on an admiralty issue. On the other
hand, it would not appear to matter whether all divisions had
the same rule of law with respect to the factors to be
considered in granting an adjustment for abuse of trust under
the Sentencing Guidelines. (Final Report at 44 n.99.)
Although the Commission does not generalize from its two examples, this
passage implicitly draws a distinction emphasized by the Federal Courts
Study Committee in its analysis of conflicts between circuits. The
Study Committee recognized that not all intercircuit conflicts are
``intolerable,'' and it posited that one criterion for identifying
``intolerable'' conflicts is that they ``impose economic costs or other
harm to multi-circuit actors.'' The White Commission's examples suggest
that it draws the line in the same way.
In the aftermath of the Study Committee report (and at the request
of Congress), I conducted a study of unresolved conflicts between
federal judicial circuits. The study concluded that, more often than
not, unresolved conflicts do not pose a serious threat to the
activities of multi-circuit actors. Indeed, on many issues the subject
matter alone virtually forecloses any effect on multi-circuit actors.
This is true of sentencing issues, as suggested by the White
Commission; it is also true of most civil rights issues and most issues
involving the elements of federal crimes. In disclaiming the importance
of circuit-wide uniformity on these issues, the Commission is
implicitly telling us that the Circuit Division need not resolve even
``square'' conflicts in large and important areas of federal law.
Two other aspects of the distinction also warrant mention. First,
``square'' conflicts on issues affecting multi-circuit actors are
probably less common than ``square'' conflicts on issues such as the
interpretation of federal criminal statutes or sentencing guidelines.
Second, the concerns that underlie the desire for uniformity between
divisions on matters of admiralty law and other issues affecting multi-
circuit actors apply equally to uniformity between circuits. For that
reason, these concerns often guide the Supreme Court in the exercise of
its certiorari jurisdiction. If the Circuit Division is confined to
resolving ``square'' conflicts on issues affecting multi-circuit
actors, it will have little to do, and that little may well be
overtaken in short order by Supreme Court decisions.
D. The shriveled ``law of the circuit''
In sum, there is less to the Circuit Division than meets the eye.
The Circuit Division would resolve only ``square'' conflicts--a
category apparently limited to cases in which one division has
explicitly rejected another's precedent. It would act only upon the
request of a party, and it would probably limit itself to issues that
affect the operations of multi-circuit actors--a circumstance that is
the exception rather than the rule. In all other respects, the law in
each division would be left to develop separately.
One other element of the Commission plan comes into play here. The
Commission contemplates that after granting review, ``the Circuit
Division will simply resolve the issue in conflict, and return the case
to the regional division for such other proceedings as are necessary.''
(Final Report at 46; emphasis added.) This too suggests a narrow view
of the Circuit Division's field of operation, and it reinforces the
supposition that the Circuit Division would confine itself to discrete
issues on which there is an explicit disagreement.
What would the consequences of this arrangement be? I believe that,
before very long, the three divisions would be carrying out their law-
declaring functions almost as separate courts. Decisions of the Circuit
Division would be so infrequent, and their effect on the law of the
division so limited, that ``the law of the circuit'' would shrink to
near-insignificance.
E. Isolation of the divisions
The scenario I have described is made even more likely by the
probable fate of another element of the Commission's plan, the long-
term random rotation of judges among the divisions. Here is what the
Commission has to say about the rotation feature in its report:
A majority of judges serving on each division would be
residents of the districts over which that division has
jurisdiction, but each division would also include some judges
not residing within the division, assigned randomly or by lot
for specified terms of at least three years. (Final Report at
43.)
The draft statute is somewhat more open-ended:
A majority of the judges assigned to each division shall
reside within the judicial districts that are within the
division's jurisdiction * * *; provided, however, that judges
may be assigned to serve for specified, staggered terms of
three years or more, in a division in which they do not reside.
Such judges shall be assigned at random, by means determined by
the court, in such numbers as necessary to enable the divisions
to function effectively. (Final Report at 94.)
Even here, there is some ambivalence about long-term cross-division
assignment of judges. (Compare ``would'' in the report text with
``may'' in the draft statute.) And when Senator Murkowski (joined by
Senator Gorton) introduced the legislation implementing the Commission
proposal, he offered the ``strong suggestion'' that the Senate
Judiciary Committee eliminate the rotation requirement altogether.
I believe that if the Commission plan were to be enacted into law,
the Murkowski view would prevail. I say this because there is simply no
constituency for the long-term random rotation of judges among
divisions. The northwestern senators--who until now have been the most
ardent advocates of splitting the circuit--have already made clear
their opposition to this feature. And the circuit judges, most of whom
do not want any division of the circuit or the court, would be equally
opposed to long-term cross-division assignment. A judge living in
Alaska would hardly relish the prospect of flying to Pasadena or
Phoenix for every argument calendar for three long years. A judge from
Los Angeles would not want to hear all of his or her cases in the
northwest.
I am not suggesting that judges would hear cases only in their own
region. On the contrary, short-term cross-division assignment of judges
would certainly be a feature of the arrangement, if only because
caseloads will seldom be proportional to the number of judges residing
in each of the regions. But that is little different from current use
of, for example, district judges and senior judges from other circuits.
The judges regularly sitting in each division would be the judges who
reside there.
F. Conclusion: the compromise that isn't
What happens when you put all of this together? In all likelihood,
the result would be something like this. In each division, cases would
be adjudicated largely by a self-contained group of judges bound only
by the precedents they themselves have handed down. The Circuit
Division would intervene to provide circuit-wide law only on the rare
occasions when a panel or en banc court in one division has explicitly
rejected another division's precedent on an issue that affects multi-
circuit actors. In many--perhaps most--areas of the law, each division
would develop its own line of precedent. The ``law of the circuit''
would become almost an irrelevance.
This analysis explains why the Commission plan is not a compromise.
Those who want to divide ``the Ninth Circuit'' have never cared about
the circuit as such. It is a matter of indifference to them whether the
circuit council, the Bankruptcy Appellate Panel, the circuit
conference, and other circuit institutions remain as they are. What
they have sought is a division of the court of appeals. And that, for
all but a handful of cases, is what the Commission plan would give
them.
ii. the commission's faulty diagnosis
Notwithstanding its flaws and limitations, the divisional structure
plan might be worth pursuing if the Commission had identified a serious
problem in the Ninth Circuit Court of Appeals that could be solved only
through reliance on smaller adjudicative units. But on the evidence of
the Commission report, no such problem exists.
The rationale for the Commission plan is that ``the law-declaring
function of appellate courts requires groups of judges smaller than the
present Ninth Circuit Court of Appeals.'' This rationale rests in turn
on two overlapping arguments. First, judges in a large appellate court
are unable ``to monitor all the decisions the entire court of appeals
renders.'' Second, ``large appellate units have difficulty developing
and maintaining consistent and coherent law.'' Neither argument stands
up under scrutiny.
A. Monitoring of panel opinions
Central to the Commission's vision of effective appellate
adjudication is the ``monitoring'' of panel opinions by other judges of
the court. The Commission puts it this way:
Courts of appeals rely on their judges to monitor the
decisions of all panels of the court so that their own
decisions are consistent with earlier decisions of the court
and so that the court can identify and correct any
misapplication or misstatements of the law. * * * The volume of
opinions produced by the Ninth Circuit's Court of Appeals and
the judges' overall workload combine to make it impossible for
all the court's judges to read all the court's published
opinions when they are issued. (Final Report at 47.)
For several reasons, the Commission's reliance on this theory is
misplaced.
First, as Chief Judge Hug and his colleagues have aptly stated, the
assumption that judges cannot keep sufficiently abreast of circuit law
without reviewing opinions as they come out ``is a relic of the pre-
computer era.'' Before computers, opinions would not appear in the
advance sheets for weeks or months; digests, citators, and other
research tools lagged even further behind. On a large court, the only
way a judge could avoid an inadvertent conflict with another panel's
decision was to read opinions as they came out, sort them into piles by
subject matter, and perhaps keep a personal index of important rulings.
Today, conditions are very different. If a judge is considering a
case involving NEPA or FOIA or Miranda or Noerr or any other issue, all
of the court's decisions on point, no matter how recent, can be
accessed in seconds through Westlaw and Lexis. In addition, the Ninth
Circuit has its own computerized case inventory tools. A judge may scan
newly filed opinions simply to get a sense of what is going on in the
court, but to collect cases in an effort to replicate the computerized
databases would be a waste of time.
Second, the Commission lumps together two very different
activities: keeping up with circuit law and monitoring panel opinions.
Keeping up with circuit law is something done by individual judges. As
already indicated, with all circuit law now easily retrievable by
computer when it is needed, there is no particular reason for
individual judges to acquire familiarity with decisions that have no
relevance for any of their current cases.
Monitoring panel opinions, in contrast, is something that the court
does as an institution. The purpose of monitoring, as the Commission
suggests, is to identify panel decisions that conflict with earlier
decisions of the court or that misstate the law. But effective
monitoring does not require that all judges keep up with all opinions.
As long as each opinion receives some scrutiny by off-panel judges, the
objectives can be met.
Third, the Commission goes off track by referring to ``[t]he volume
of opinions produced by the Ninth Circuit's Court of Appeals.''
(Emphasis added.) What the Commission fails to mention is that the
volume of published opinions does not correlate with circuit size. In
1998, three other circuits produced a larger number of published
opinions than did the Ninth Circuit.
(The analysis is limited to published opinions because only
published opinions contribute to the law of the circuit. Also, I
recognize that 1998 may have been aberrational for the Ninth Circuit,
in that the court's output of published opinions was probably reduced
by its high vacancy rate. However, it is not uncommon for other
circuits to approach or exceed the output of the Ninth Circuit.)
One would think that, other things being equal, an annual output of
800 opinions could be monitored more easily by 28 judges than by 14.
Opinions are not fungible, and neither are judges. The larger the
number of judges engaged in the monitoring process, the greater the
likelihood that a particular error or inconsistency will catch the eye
of at least one member of the court.
Finally, the evidence leaves no doubt that the judges of the Ninth
Circuit Court of Appeals engage in a substantial amount of opinion
monitoring. In the four-year period ending in 1997, there were more
than 300 cases in which an off-panel judge initiated en banc activity.
(This figure includes only cases in which the off-panel judge formally
invoked the en banc procedures of the court's General Orders. It does
not include cases--perhaps quite numerous--in which the off-panel judge
communicated only with the panel members.) Even when the court did not
vote on an en banc call, the off-panel judge's comments often resulted
in modification of the panel opinion and sometimes in a modification of
the disposition.
In this light, the Commission's concerns about the supposed
difficulties of opinion monitoring in the ``large appellate unit'' ring
hollow. Judges today need not read opinions as they come out in order
to make use of them when they are relevant. As for monitoring, the
evidence indicates that the judges of the Ninth Circuit can and do
monitor the opinions rendered by their colleagues.
B. Maintaining coherent and consistent law
Monitoring, of course, is not an end in itself, but a means to an
end. The Commission's principal argument is that ``large appellate
units have difficulty developing and maintaining consistent and
coherent law.'' (Final Report at 47.) The Commission thus aligns itself
with those who believe that inconsistencies in panel decisions are more
common in the Ninth Circuit than in other circuits.
What is the basis for this conclusion, so critical to the
Commission's recommendation? The Commission refers to ``perceptions''
of inconsistency and to its own ``judgment, based on experience.'' The
``experience'' is not specified or described. This is a remarkably weak
foundation on which to build so substantial a structure.
The Commission acknowledges ``the literature on [the] subject,''
including my own empirical studies of inconsistency in the Ninth
Circuit. The Commission's only response is to say that consistency and
predictability cannot be ``reduce[d] * * * to statistical analysis''
because the ``concepts are too subtle, the decline in quality too
incremental, and the effects of size too difficult to isolate, to allow
evaluation in a freeze-framed moment.'' (Final Report at 39-40 & n.39.)
It is the Commission's prerogative to reject the methods or
conclusions of empirical research, but it is regrettable that the
Commission simply gives up and declares that the concepts are too
subtle to warrant analysis. For example, what does the Commission mean
by ``evaluation in a freeze-framed moment''? The research I conducted,
and which the Commission cites, embraced two distinct years of the
Ninth Circuit's work, and the evaluation involved decisions rendered
over a much longer period of time.
Although the Commission is not willing to credit systematic
empirical research, it is willing to rely on ``perceptions.'' The
reference to ``perceptions'' apparently incorporates the brief account
earlier in the report of the Commission's survey of district judges and
lawyers in the Ninth Circuit and nationwide. The survey is a valuable--
indeed unique--source of information, and happily the Commission has
made available a complete account of the findings in its Working
Papers. Those findings raise some doubts about the conclusions drawn by
the Commission.
Consider one of the specific points cited by the Commission in its
report:
Ninth Circuit lawyers, more often than others, reported as a
``large'' or ``grave'' problem the difficulty of discerning
circuit law due to conflicting precedents, and the
unpredictability of appellate results until the panel's
identity is known. (Final Report at 40.)
When we look at the corresponding table in the Working Papers, we
find that, indeed, Ninth Circuit lawyers were more likely than lawyers
in other regional circuits to have experienced problems in ``discerning
circuit law due to conflicting precedents.'' (Working Papers at 86,
Item 20g.) But two other points also stand out:
The Ninth Circuit lawyers who viewed the problem as
``large'' or ``grave'' constituted only one-quarter of the
respondents.
The highest proportion of lawyers giving this response came
not from the Ninth Circuit, but from the Federal Circuit--a
court of 12 judges, all of whom sit in the same city.
A similar pattern can be seen in the responses to the question
``how big a problem is the unpredictability of results until the
panel's identity is known?'' (Working Papers at 87, Item 20j.) Ninth
Circuit lawyers were more likely to have experienced problems than
lawyers in other regional circuits, but so were lawyers practicing
before the Federal Circuit. Interestingly, one out of seven lawyers
experienced a ``large'' or ``grave'' problem of unpredictability in the
First Circuit, which has only six judgeships and enjoys a reputation
for collegiality. (The Commission, in explaining what it means by
``collegiality,'' quotes at length from a book by the former chief
judge of the First Circuit.)
These findings point to the need for caution in interpreting the
survey results. The question is not whether particular phenomena are
associated with the Ninth Circuit Court of Appeals, but whether those
phenomena are causally linked to circuit size. On this score, a recent
news story about the Court of Appeals for the Federal Circuit provides
a useful perspective. (National Law Journal, Aug. 3, 1998, at A-1.) The
story notes that some members of the intellectual property bar ``accuse
the specialized court of unpredictability, claiming that judges are
deeply divided on basic patent doctrine, [and] that results are often
panel-dependent.'' The story elaborates:
This factionalism leads to a crap-shoot mentality among
lawyers who say the outcome of their cases depends too heavily
on who sits on a particular panel. Because the U.S. Supreme
Court rarely reviews patent cases, the panels' inconsistent
rulings remain unresolved. * * * Some say the court should take
more cases en banc.
To anyone who has followed the debate over dividing the Ninth
Circuit, these comments will sound uncannily familiar. They are
precisely the kinds of comments that give rise to the ``perceptions''
that the Commission relies on. Yet no one would argue that the Court of
Appeals for the Federal Circuit is too large and should be divided into
smaller adjudicative units.
I do not know whether the criticisms of the Federal Circuit are
justified. Nor would I want the Ninth Circuit to view the survey
findings with complacency. I do suggest that the ``perception''
evidence drawn from the survey offers little support for the
Commission's conclusion that ``large appellate units have difficulty
developing and maintaining consistent and coherent law.''
Finally, there is (to borrow a favorite allusion of Chief Justice
Rehnquist) the evidence of the dog that did not bark in the night-time.
If inconsistency is as much of a problem as the Commission believes it
is, examples should be easy to find. The Commission compiled a
voluminous record of testimony and statements dealing with the Ninth
Circuit, yet not a single witness came forward with examples--
systematic or even anecdotal--of conflicts between Ninth Circuit panel
decisions. It is not even clear what kinds of conflicts the Commission
has in mind--whether it believes that panels are ignoring relevant
precedents, or that panels are drawing unpersuasive distinctions, or
some combination of the two.
The absence of examples and the lack of specificity are emblematic
of the flimsy evidentiary support that underlies the Commission's plan.
At most, the Commission has shown that there is some dissatisfaction
with the Ninth Circuit Court of Appeals' performance of its law-
declaring function. The Commission has not demonstrated the existence
of problems that would be cured by dividing the court into three
largely autonomous decisional units.
iii. conclusion
The Commission's proposal for regionally based adjudicative
divisions reflects a conscientious attempt to respond to criticisms of
the Ninth Circuit Court of Appeals ``while preserving [an]
administrative structure that no one has seriously challenged.''
Unfortunately, the plan is flawed both in conception and in execution.
It is unlikely to accomplish its goals, and it has the capacity to
produce much mischief. I urge the Committee to reject the proposal and
to allow the Ninth Circuit Court of Appeals to continue its course of
productive experimentation ``to improve the delivery of justice in the
region it serves.''
__________
Prepared Statement of Daniel J. Meador, James Monroe Professor of Law
Emeritus, university of Virginia
Mr. Chairman and Members of the Subcommittee: This subcommittee is
to be highly commended for setting in motion a process that will lead,
I fervently hope, to enactment of the essential provisions of S. 253.
That bill embodies the recommendations contained in the Final Report of
the Commission on Structural Alternatives for the Federal Courts of
Appeals (the Commission), submitted to the Congress and the President
on December 18, 1998. It was my privilege to serve as Executive
Director of the Commission, and I am pleased to respond to the
invitation to submit a statement to the subcommittee.
Before my work with the commission this past year, I had spent more
than a quarter-century studying federal and state appellate courts and
working with judges, the Department of Justice, other organizations,
and Congressional committees to improve those courts. So I present this
statement not solely from the standpoint of my service as the
Commisssion's Executive Director--indeed I do not speak here for the
Commission--but as one who has labored long in the appellate vineyards,
always, to borrow from Lord Macaulay, to reform them in order to
preserve them--to preserve them as vital organs of government under law
in the face of continued docket growth and changing circumstances.
Pursuant to its Congressional mandate, the Commission spent ten
months of intensive study of the courts of appeals, resulting in the
most thorough and in-depth examination of the federal appellate system
since the Hruska Commission report of 1973 (Commission on Revision of
the Federal Court Appellate System). While no proposals for structuring
the courts and adjusting their processes is perfect--there are always
advantages and disadvantages to be weighed--it is doubtful that any
other body can or will devote the time and resources to developing a
better set of proposals. Having looked to this Commission for
guidance--and the Commission having done what it was directed to do--
Congress would do well, after hearings and due deliberation, to enact
into law its recommendations. If this opportunity to 'fix'' the
federal' appellate courts for the next century is not taken, the
thirty-five year old controversy over the Ninth Circuit will continue
to fester, with its dysfunctional and debilitating consequences and
with its damage to the status of the federal courts in the public mind.
Moreover, an opportunity will have been lost to equip all the courts of
appeals with the means of coping with future growth.
Inasmuch as the Commission's report gives particular attention, as
the statute directed, to the Ninth Circuit, I devote the bulk of my
statement to that subject.
the ninth circuit and its court of appeals
The commission's report provides an important insight that has not
heretofore been appreciated, namely, that there is a significant
distinction between a judicial circuit and a court of appeals. A
circuit is purely an administrative entity, organized on a territorial
basis, and should be evaluated as such. A court of appeals, by
contrast, is an adjudicative body, charged solely with deciding
appeals. Informal discourse among lawyers and judges tends to equate
the two. For example, when one hears that ``Judge X is on the Ninth
Circuit,'' it is understood as meaning that Judge X is a member of the
court of appeals for the Ninth Circuit. The statement that ``the Ninth
Circuit held that * * *'' is understood to mean that the Ninth Circuit
Court of Appeals made such a holding. While this may be useful as
shorthand, it has the unfortunate consequence of leading persons to
think that the circuit and its court of appeals are indistinguishable.
This leads to the assumption that the only way to address problems of
an overgrown court of appeals and to create more manageable appellate
units is to split the circuit. The Commission's report rejects that
premise and makes it plain that circuit splitting is not the only way
to deal with problems of growth in a court of appeals.
The commission's enunciation of this distinction between circuit
and court provides a valuable premise not only for dealing with the
Ninth Circuit, but also for the consideration of the nationwide circuit
structure for many years to come. It is hoped that Congress will accept
and act upon this premise.
After close examination of the Ninth Circuit, the Commission
concluded that the problems agitating much of the bench, bar, and
public officialdom relate only to the court of appeals and not to the
circuit. Believing that the remedy should be tailored to the problems,
the Commission recommended that the circuit be left to function intact
administratively, but that the difficulties of the huge, 28-judge court
of appeals--a court certain to grow larger in the years ahead--which
purports to function as a single decisional unit, be addressed by
restructuring the court into regional adjudicative divisions, thereby
creating smaller, more manageable appellate forums.
The benefits and advantages of the recommended divisional structure
are these:
1. Heightened uniformity in circuit court law
An argument that has been heard against the divisional structure is
that it will increase intra-circuit conflicts, as the decisions
rendered in one division need not be regarded as binding precedents in
other divisions. But the opposite is true; uniformity will be increased
by a divisional structure. Currently, the court of appeals functions
through dozens and dozens of ever-shifting panels. In practice, the
court uses more than 40 judges annually (district judges and visiting
circuit judges, in addition to its own judges). Those panels decide
thousands of cases annually. In theory, a decision by any one of those
panels is considered to be a precedent binding on all judges and panels
of the court. But according to many participants and observers, the
vast body of case law generated by this multitude of panels is in many
instances unharmonious, ranging from direct conflicts to near-conflicts
to divergences in tone and reasoning. Those who assert that this is not
the situation appear not to acknowledge the realities as seen by many
others. In theory, the court's existing en banc process irons out all
conflicts. But again, theory does not accord with reality. According to
many participants and observors, the court's limited en banc procedure
is inadequate and ineffective to monitor and conform those thousands of
decisions.
By contrast, the divisional structure would provide an effective
means for maintaining uniformity within each division because its seven
to 11 judges could monitor all divisional decisions and could sit in a
true en banc whenever necessary to resolve conflicting panel decisions.
There would thus be only three decisional units (the three regional
divisions) among which conflict could arise instead of the many dozens
or hundreds of panels, as at present. When an interdivisional conflict
did arise, it could be resolved far more-quickly and inexpensively
through the Circuit Division than is possible with the current en banc
process.
2. Reduced judicial burdens, increased coherence in settling circuit
law
A key here is the recommended Circuit Division. It would be a
continuously functioning body, with a stable, though gradually
rotating, membership, drawn from throughout the circuit, available at
all times to resolve inter-divisional conflicts quickly. There would be
no administrative hassle in having to assemble a fresh group of judges
for each case, as is done in present practice. The Circuit Division's
resolution of such conflicts would require no elaborate additional
process, such as en banc rehearings presently involve. It would resolve
the conflict on the papers filed in the regional division, without any
additional briefing or oral argument. Its sole mission would be to
decide whether position A or position B should be adopted. It would be,
as some have said, a ``tie-breaker.'' Because it would be a stable, on-
going body, its judges would become accustomed to working together and
could thus dispose of business more efficiently. The present Ninth
Circuit limited en banc functions through judges who are unlikely to
have worked together before in deciding cases and will never do so
again--hardly the picture of an appellate court, as such is understood
in the Anglo-American legal world.
The Circuit Division should not be confused with the en banc
procedure long familiar in the federal courts of appeals. It would be a
quite different entity. In addition to being a stable on-going body, a
key difference is that it would not be involved in the difficult and
controversial business of deciding important or unsettled legal issues,
where there is no inter-divisional conflict. It would act only when
such a conflict is presented. The Circuit Division would, of course,
need to decide when a conflict existed so as to act, but this would not
involve any additional litigation. The judges would examine the
assertion of a conflict and decide for themselves, as a matter of
unreviewable discretion, whether there is indeed the kind of conflict
that needs circuit-wide resolution.
The divisional plan would make each judge a more effective monitor
of the court's output and would enable each to play a meaningful role
in shaping uniform case law. Presently, no Ninth Circuit appellate
judge can possibly read or even cursorily glance at all of the
thousands of decisions the court as a whole produces annually. As a
member of a division of from 7 to 11 judges, he or she could do so. Now
each judge must consider and respond to en banc calls from each of the
other judges--27 when the court is at full strength. That takes time
away from the routine business of deciding appeals and writing
opinions. Under the divisional plan, each judge would need to consider
en banc calls from only six to ten other judges. Moreover, when an en
banc is held, every judge of the decisional unit--the division--can
fully participate, something that is impossible on the court of appeals
as it is presently organized.
The Circuit Division is, of course, another tier in the judicial
system, but it is a minimal tier, not, as just explained, one that
involves the full panoply of briefing and argument. It could act
expeditiously on existing papers with minimal expense to litigants.
Moreover, some additional tiers in the system are probably inevitable,
as the volume of appeals and number of judges grow. Indeed, Justice
Bryer, in a letter to the Commission, suggested ``tiering'' in the
judicial hierarchy as a promising approach to anticipated growth.
3. Restored relationship between the appellate forum and the people and
territory it serves; appropriate accommodation of Federal and
regional interests
The federal appellate structure nationwide is built on the concept
of regionalism, balanced with concern for the federalizing function of
the appellate courts--a concept endorsed by the Judicial Conference in
its Long Range Plan. The larger the circuit's territory, the more
attenuated the regional relationship becomes. The Ninth Circuit is the
extreme, and it is the sense of many judges, lawyers, and observers
that this relationship is there stretched too thin. Compare the Ninth
Circuit, embracing nine large states, with most of the other circuits:
1st (four states), 2nd (three states), 3rd (three states), 4th (five
states), 5th (three states), 6th (four states), 7th (three states),
l1th (three states). To assert that the entire Ninth Circuit,
stretching from Arizona to Alaska and from Montana to Hawaii, is a
single region, in the sense relevant here, taxes credulity. One can
reasonably ask why the lawyers, litigants, and citizens in the
territory of the Ninth Circuit should be denied the benefits of
regionalism enjoyed in those other circuits.
Regionally based divisions would bring the regional interest back
into balance in the Ninth Circuit, and would do so without splitting
the circuit. The federalizing function would continue to be served
because each division would include the territory of more than one
state, and judges from more than one state would sit on each division.
In my view, this consideration alone is sufficient to call for
enactment of the divisional plan, even if one does not accept the other
arguments that support it.
4. An appellate court preserved
The commission's report embodies a traditional conception of
appellate courts derived from two centuries of experience. This
traditional conception is that of a relatively small group of judges
working regularly together in considering and deciding appeals,
collaborating in arriving at commonly agreed reasoning and result in
each case. Whether one agrees with the recommendations for a divisional
plan for a court as large as the Ninth Circuit Court of Appeals depends
to a considerable extent on whether one shares that view of an
appellate court. Those who oppose the divisional plan appear not to do
so; acceptance of their view would work a radical alteration in the
nature of appellate courts. Thus, the federal appellate courts are at a
crossroads, presenting Congress with the necessity of deciding the
nature of those judicial bodies for generations to come. This decision
involves a fundamental matter of value judgment, one not determined by
empirical studies or statistics or conflicting factual assertions over
whether there is this or that degree of inter-circuit conflict. Rather,
it involves belief rooted in experience about the nature of an
institution.
Appellate judges do not act alone, as trial judges do. They must
function as a team, a team whose members are constantly interacting in
the decisional process. This conception is often summed up in the word
``collegiality.'' One of the best statements of this quality in an
appellate court--what he called 'judiciality''--comes from Judge Frank
Coffin, former chief judge of the U.S. Court of Appeals for the First
Circuit. He says that it involves ``the deliberately cultivated
attitude among judges of equal status working in intimate, continuing,
open, and noncompetitive relationship with each other * * *''
It takes little imagination to understand that 28 judges, or any
very large number, cannot work in an ``intimate, continuing''
relationship. In the Ninth Circuit, each judge is unlikely to serve on
a panel with any other judge of the court more than once every three
years. The judges may be acquainted with each other and cordial in
their relationships, but they do not constantly function together in
adjudicative work.
Under the traditional conception, an appellate court is a special
kind of body, basically different from a legislative body or any other
entity. Those who do not share this conception place little or no value
on the kind of collegiality described by Judge Coffin, and they see no
problem in an appellate court of near infinite size. At the
Commission's public hearings, some of those who defended the present
organization of the Ninth Circuit Court of Appeals were unwilling to
say that a court of even forty or fifty judges, attempting to function
as a single decisional entity, presented a problem. Apparently to those
holding that view, a random threesome of strangers brought together
every three years is sufficient to satisfy the appellate process in the
American legal order. The Commission's report implicitly rejects that
view, and I urge Congress to do so.
The divisional plan would preserve the traditional conception of an
appellate court by establishing decisional units of from seven to 11
judges each. The plan would permit an indefinite number of judges to be
added to the court to meet increased business without eroding the
essential nature of an appellate forum, as additional divisions of this
size could be created. Without such a plan, we will lose institutions
that have served the law well and will have in their place ever-growing
Towers of Babel, increasingly unknown courts composed of a vast number
of semi-strangers.
the courts of appeals generally
As charged by statute, the Commission examined the structure and
alignment of the federal appellate system as a whole, and it did so
with an eye to the future. It reached these conclusions: (1) There will
be continuing growth in the volume of appeals in the years ahead. (2)
The rapidity and magnitude of growth will vary among the circuits and
among types of cases. (3) It is impossible to predict with confidence
any of these future developments beyond the assertions just made. Given
the difficulty of predicting the rate, amount, and type of growth in
each circuit, the Commission concluded that it is not prudent to
prescribe by legislation at this time a single set of structures and
procedures for all courts of appeals. Rather, the commission
recommended that each circuit and court of appeals be authorized in its
discretion to employ any one of three defined and circumscribed options
to meet its particular docket situation.
1. The divisional concept as long-range solution to growth in the
nationwide appellate system
The beauty of the divisional concept is that it not only deals
effectively with the present Ninth circuit situation, but it also
provides a means of enabling courts of appeals in other circuits to
continue to function effectively as they grow larger, without splitting
the circuit. If we adhere to the proposition that no circuit should
consist of fewer than three states--endorsed by the Hruska Commission
and re-endorsed by this Commission--there are now eight circuits that
cannot be split. Yet their courts of appeals are almost certain to
grow. It is not difficult to imagine several of those courts with 20 or
more judges within the next 10 to 15 years, a growth that will be
necessary in order to cope with their dockets. They will increasingly
encounter the same problems that the Ninth Circuit now encounters. A
divisional plan of organization will enable those courts to function
effectively in a situation where circuit-splitting is not an option.
While the Commission was clear that the Ninth Circuit Court of
Appeals is at a point where a divisional structure is required, it was
hesitant to say exactly where that point is reached short of 28
judgeships. Thus, it concluded that the wise course of action is to
authorize any court of appeals with more than 15 judgeships to organize
itself into divisions, in its discretion. This gives each court the
ability to assess its distinctive situation and design an appropriate
internal structure.
2. Two-Judge panels
Because the courts of appeals now decide many appeals through a
summary process, typically using staff attorneys, the Commission
concluded that as to cases of that type, each court of appeals should
be authorized, in its discretion, to assign them to panels of two
judges instead of three judges. The report explains this option in
detail.
3. District court appellate panels
Shifting a portion of the appellate work to the trial level has
long been advocated. The Commission concluded that the idea is
sufficiently promising that each Circuit Judicial Council should have
discretionary authority to establish district court appellate panels
and assign designated categories of cases to those panels, each
consisting of two district judges and one circuit judge.
In all of these options, the Federal Judicial Center would be
charged with monitoring the procedure and reporting on the experience
to the Judicial Conference of the United States, which, in turn, would
communicate its views to the Congress.
minor changes in s. 253
1. In Section 2(c)(1) of the bill, I suggest that the following
sentence be added at the end: ``A judge selected for service on the
Circuit Division shall continue to perform regular judicial duties
as a member of a regional division.'' The reason for this provision
is to make it clear that selection for the Circuit Division does
not relieve a judge from his or her regional divisional duties.
service on the Circuit Division is simply an additional duty, as
service on an en banc now is.
2. In Sections 2(e), 3(c), and 4(c), The Federal Judicial center is
required to report within three years after the date of enactment
of the Act. This is much too short a period of time within which to
obtain a meaningful study and evaluation of these procedures. After
enactment of this bill, it is likely to take any court several
months to put the new structures or procedures in place and begin
to function under them. After collecting and evaluating data, it is
likely to take the Federal Judicial Center a substantial time to
write a report. The upshot is that there would be less than two
years of experience on which a report could be based. That is
hardly even one appellate cycle. While the eight years recommended
by the Commission may be considered too long, three years seems
clearly too short. I suggest that the bill be amended to specify
five years within which the FJC report must be submitted.
As is always the case with proposals for change, opponents can
raise an array of hypothetical questions and imagined difficulties in
their operation. And so it is here. Having heard many, and maybe all,
of them, I am satisfied that no one of them amounts to a reason for
rejecting the Commission's recommendations. Some of the imagined
situations will never occur, and others will be worked out in practice.
It must be remembered that any new judicial structure, jurisdiction, or
procedure will go through an initial ``shakedown'' period after its
adoption, during which kinks are ironed out and uncertainties are
clarified. It should also be borne in mind that much of the opposition
voiced to the commission's recommendations comes, as members of
Congress no doubt understand, from the instinctive objection to change
by some judges and lawyers.
The relatively modest, evolutionary changes to the century-old
federal appellate system recommended by this Congressionally created
Commission are needed to preserve the appellate courts as we have known
them in the face of unprecedented growth. After three decades of
debates, conferences, committee hearings, studies, and reports, I
respectfully submit that it is time for Congress to act.
__________
Prepared Statement of Joseph T. Sneed, III
introductory remarks
I shall devote the initial Portion of this presentation to what the
entire federal judicial system should resemble fifty years hence. I do
this because whatever happens to the Ninth Circuit in the near future
should anticipate that future to the extent possible.
Certain assumptions about future developments are quite reasonable.
These include the increasing dominance of federal law over state law
and continuing increases in the number of lawyers. In short, all signs
point to a continuing increase in federal litigation and a
corresponding increase in the number of federal judges serving the
nation, Unfortunately, no other assumption appears reasonable.
This means this Commission, in my opinion, must base its
recommendations on that assumption. When so based I submit that the
commission must proceed in one of two basic directions. The first would
be to preserve the existing Ninth Circuit as a model for the future,
and recommend the eventual consolidation of the remaining circuits into
Eastern, Midwestern, Southern, and Southwestern circuits. This, or
something resembling it, is the ``Mega-Circuit'' vision. Within such
circuits there would very likely develop specialized circuit agencies,
such as the present bankruptcy appellate panels, functioning between
the district court and the Mega-Circuit court.
The second assumption upon which this commission might proceed is
that the number of circuits should be increased as the caseload drives
the need for additional judges power in a given circuit above a range
between, I would say, 17 to 21 circuit judges. In due course this will
create the need for the creation of a court to serve as an auxiliary to
the Supreme Court. It is on the basis of this second assumption that my
written remarks are based.
My remarks are addressed to the present geographic configuration of
the Ninth Circuit Court of Appeals. My position is that it should be
divided. This conclusion is based on the following considerations.
The case filings in this Circuit have increased 63 percent in the
past ten years. They were 5,490 in 1987, and 8,692 in 1997. Also, the
number of motions filed in this circuit have increased. They were
approximately 8,643 in 1987, and 12,028 in 1997. Our en banc hearings
in 1987 were 15, and those in 1997 were only 8. The total number of
habeas corpus cases was 786, which include 37 death penalty cases. The
total number of prisoner petitions was 2,151. The total number of pro
se appeals was 3,424. In the past several years our active judge power
has substantially declined (for which Congress is largely responsible)
and this further hampered the Circuit's ability to keep abreast with
case filings and en banc calls.
i. some consequences of size
A. Collegiality
In many respects the consequences of these facts are more important
than the facts themselves. The size of the Circuit dictates that active
and some senior judges spend an inordinate amount of time in travel.
While much work is done without the necessity of travel by means of the
telephone and e-mail, it remains true that rarely is the full court
assembled in one location. The annual symposium of three or four days
provides one of the few opportunities for such assembly. The Judicial
Conference is too large and concerned with matters not always relevant
to circuit business.
There are inescapable consequences that flow from these conditions.
One is the increasing inability to disagree respectfully. Too
frequently a disagreement on the law leads to sharp verbal thrusts that
on occasion become infected with distinct hostility. Another is that
the formal court meeting must be devoted to reporting to those judges
present the activities of the Chief judge, the Executive Committee, and
various other committees of the court.
To some extent the conditions I have mentioned also exist in
smaller circuits. My point is that they are made more intense by the
large number of judges in the present Ninth Circuit and their vast
geographic dispersal. This heightened intensity slowly undermines the
obligations of collegiality and subtly excuses one's failure to perform
them. Those obligations are more easily met, or perhaps one should say
induced, in smaller circuits. Frequent encounters, a lunch, or an
exchange of social events softens the edge of legitimate judicial
differences.
It is true that to some degree appellate judges must be reasonably
courteous to one another. However, when this obligation is burdened
with unspoken hostility, courtesy is marked by reserve and restraint.
it is undeniable that without regard to the size of the court
judges will differ in their approach to the nature of their duties.
Usually this difference reveals itself in the manner in which a judge
utilizes precedents. All precedents can be squeezed or stretched. Every
judge sometimes resorts to both. These practices, unchecked by frequent
personal encounters with each of one's colleagues, tend to generate en
banc calls which can lead to intemperate remarks that further strain
the obligations of courtesy.
In my opinion, a court smaller than the present Ninth Circuit will
better impose a curb on these tendencies. The increasing frequency of
the necessity of justifying such tendencies to a relatively small group
of colleagues gradually produces a movement of all toward the center
more or less satisfactory to most. 33.
The en banc process
The reduced force of this pressure toward the center in courts the
size of the Ninth circuit increases the likelihood of resort to the en
banc process. This was recognized when the Ninth circuit was increased
in size to twenty-three active judges. However, an en banc court of
twenty-three judges is not practical. Then-Chief Judge Browning
designed and secured approval from the Court and Congress of a limited
en banc process whereby a case voted by a majority of the active judges
would be placed before a panel of eleven active judges chosen by lot
from among all active judges.
The element of chance in this process, while tolerable with a court
of twenty-three active judges, becomes, I submit, increasingly
capricious as the authorized strength of the Ninth circuit increases. A
similar en banc process of a court of forty- one, for example, very
likely will not be tolerated. What then is the proper size? Certainly
the en banc court should be larger than the present eleven. But how
much larger? What is the proper balance between representational
fairness and operational efficiency of the en banc panel? Today it
would be possible to recommend that the en banc court be increased by
small increments as the authorized-strength of the court grows. I
strongly suggest that this is an inappropriate course for this
Commission to endorse.
C. Other ameliorative possibilities
No doubt there are procedures available now or relatively soon that
would, or could, ameliorate the disadvantages of the enormous
geographic area embraced by the Ninth Circuit. For example, e-mail has
reduced the delays in inter-chambers communication enormously. Video
conferencing would permit intra-panel conferencing as well as possibly
oral arguments heard and seen by all participants without leaving their
chambers or law offices. The number of appeals entitled to full scale
oral argument also could be substantially reduced by practice or
legislation. Indeed, in this circuit during my tenure this has been
done by practice and without too much protest. Progress in this
direction could be formalized by creating at the circuit level an
equivalent of the Supreme Court's certiorari process. In such a system,
much of the screening process would be done by staff lawyers rather
than elbow clerks.
D. The legitimacy concern
No doubt other measures aimed at increasing our disposition
capacity will be suggested in presentations to this Commission. While I
cannot be dogmatic, I must suggest that many of these techniques will
reduce the legitimacy of a key part of the federal judiciary--the
Circuit Courts of Appeals. That legitimacy ought not to be eroded. It
contributes enormously to permitting the Supreme Court to limit its
grants of certiorari to very important cases secure in the knowledge
that all cases from the district courts have been carefully screened
for error by the circuit courts. We should not erode the legitimacy of
the security on which the Supreme Court relies.
ii. a proposed solution
I suggest that an appropriate and relatively long-term solution is
the enactment of a law dividing the Ninth Circuit and thereby creating
a Twelfth Circuit consisting of the northwest states of Oregon,
Washington, Idaho, Montana, and Alaska. This is not a new idea; it has
been discussed at least since the 1930's. Indeed in the early 1950's
then-Chief Judge Denman briefly promoted the idea for which at that
time there was some support among the circuit judges from the
northwestern states.
A. The Northwest as a ``bloodbank'' for California
The late Chief Judge Chambers, then only recently appointed to the
Ninth Circuit, opposed the idea at least in part because it was his
firm belief that only by including the northwestern states in the
circuit would sufficient judges be nominated and confirmed by the
Senate of the United States to enable the Ninth Circuit to handle with
dispatch the appeals that were filed by and on behalf of Californians.
In his inimitable style Chief Judge Chambers put it this way: ``The
Northwest is the bloodbank for California.''
An issue before this Commission is whether that belief remains
valid. I would argue that it does not. In 1950 the population of the
then existing states of the northwest was approximately 5,366,000.
Today the population of those states, plus the State of Alaska, is
approximately 10,826,000. The combined populations of California,
Arizona, Nevada and Hawaii is now 38,524,016. cases filed in the Ninth
Circuit in 1952 originating in the northwestern states numbered 142. In
1997 the number of cases originating in those states reached 1,973. I
submit that a Twelfth circuit is justified by these numbers. It remains
true that the filings originating in California and the states of
Nevada, Arizona and Hawaii in 1997 are greater than those of the
northwestern states. In that year they were 6,646.\1\
---------------------------------------------------------------------------
\1\ While these combined figures do not correspond to the total
number of case filings in 1997, such discrepancy can be explained by
the omission of case filings from Guam (61) and the Northern Mariana
Islands (12).
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These numbers clearly indicate that the case filings in the
suggested Twelfth circuit are sufficient to justify its existence.
Obviously the same is true of the reconfigured Ninth circuit. The only
serious issue is whether the late Chief Judge Chambers, ``bloodbank''
strategy remains necessary to secure enough circuit Judges in the
southwest four-state circuit to dispose in a timely fashion of the
appeals originating in California.
I submit that the political power of California, one of the giants
of the Union of States, is sufficient to provide that protection. While
it has only two senators, the Arizona-Nevada-Hawaii-California Circuit
would have a comfortable eight plus many congressmen to assist in
protecting California's interest in securing the needed judges. The
west is no longer that ``area beyond the Rocky Mountains'' but an area
rivaling the eastern seaboard in national influence.
B. An alternative approach
Moreover, there exists a method by which Congress could eliminate,
or substantially reduce, California's reliance on the northwest ``blood
bank.'' This Commission should press Congress to enact,
contemporaneously with the creation of a northwest circuit, a provision
requiring that a certain percentage of the judges of the resulting
southwest Ninth Circuit be from the State of California. Under the
present figures, roughly 75k of the cases filed in the Ninth Circuit,
which have their source in the four states of California, Nevada,
Arizona, and Hawaii, are California cases. Thus, it would be quite
reasonable to provide that three out of five (60 percent) of the
appointments should involve residents of California. No doubt were such
a requirement written into the law, the Senators of these states would
devise an orderly process of rotation of making their recommendations
to the President. Moreover, it is likely that the percentage assigned
to California would be subject to negotiation. The minimum percentage
assigned to California should never be permitted to fall below one-half
of the total active judge strength of the southwest circuit.
I cannot predict whether legislation structured along these lines
is politically feasible. On the other hand, to release the northwest
from the Ninth Circuit and simultaneously to assure California of a
respectable share of Ninth Circuit appointments has considerable appeal
to both the northwestern states as well as to California. Moreover, it
should not antagonize Nevada, Arizona, or Hawaii.
C. A California split between two circuits
It was suggested some years ago that a portion of California remain
in the Ninth Circuit and the remainder be assigned to a northwestern
circuit. The inevitable differences in the interpretation of California
law and the application thereto of federal statutory and constitutional
law would make necessary either the creation of ponderous procedures to
harmonize these conflicts or the imposition of that duty on the Supreme
Court. Moreover, I would suppose that California practitioners and
their clients would not welcome such a structure.
I do not favor this partitioning of California.
iii. the future of circuit courts of appeal
I have not to this point chosen to address directly the larger
questions of whether, how, and, if so, when the existing structure of
the Circuit Courts of Appeal should be altered. My focus on the Ninth
Circuit is responsive to a significant portion of the mandate given by
Congress to this Commission. Nonetheless, it is obvious that there is a
link between what is proper for the Ninth Circuit and the future of
Circuit Courts of Appeal in general.
It is clear that I do not support the creation of what have been
called mega-circuits. In such circuits judges become mere overseers of
a large staff, both within and without the chambers, in which an
increasing number of cases are decided without a judge, or his or her
elbow clerk, having examined the record with care. I do not argue that
such practices frequently result in disaster. That would not be true. I
do argue that the citizens of the United States, properly informed,
would not believe that such a system amounts to equal justice to all?
To forfeit the faith that equal justice exists is not a risk that
should be encountered lightly.
I recognize that to downsize the geographical limits of circuits,
as case filings exceed the limits of direct personal involvement of
individual circuit judges, could lead to a substantial increase in the
number of circuits. This in turn creates pressures for the creation of
one or more judicial bodies to assist the Supreme Court in
administering and establishing the law of the United States.
I regard this possibility more remote in time than the existence of
mega-circuits. Therefore, at this point the downsizing of circuits to
stabilize and maintain the direct involvement of circuit judges in a
substantial portion of the case filings is the cautious and proper
course to follow.
conclusion
I close my remarks by observing that the geographic reach of the
Ninth Circuit is enormous, embracing that remnant of manifest destiny.
Guam, as once it did the treaty port portion of Shanghai. This enormity
has an undeniable appeal to many, not excluding the judges who sit
thereon. Our fascination with size is one shared by most Americans
without regard to their station in life. It is part of our sense of
identity.
Nonetheless, it is out of place as a factor in determining whether
the Ninth Circuit should be split. Our goal should be to design an
appellate structure that will most satisfactorily serve the citizens of
the states of Alaska, Washington, Idaho, Montana, Oregon, California,
Nevada, Arizona, Hawaii, and the Commonwealth of the Northern Marianas,
and the Island of Guam. It is by that standard that the work of this
Commission, as it relates to the Ninth Circuit Court of Appeals, should
be judged. In that process the many virtues of the Ninth circuit's past
should not be controlling.
__________
Prepared Statement of Circuit Judge David R. Thompson
summary
The Ninth Circuit Court of Appeals has established an Evaluation
Committee which Judge Thompson chairs. The Committee is evaluating the
processes of the Circuit Court. To date, the Committee has considered
issues within the categories of Consistency of Decisions, Regional
Sensitivity, Collegiality, Productivity and the Court's En Banc
Process.
To identify cases perceived to create conflicts, the Committee will
use its staff attorneys to review opinions; it also intends to
implement a process to permit district judges and the bar to bring
potential conflicts to the Court's attention. The Court is
experimenting with the regional assignment of judges, and is examining
the issue of ``collegiality'' in the context of how it may impact the
work of the Court. To increase productivity, the Committee is
considering an ``assault'' on pending cases, and making changes in the
Court's calendaring procedures. With regard to the en banc process, the
Committee intends to make recommendations for increasing the number of
judges on the en banc court and decreasing the voting number necessary
to take a case en banc.
The work of the Committee is ongoing. The Ninth Circuit can
experiment with changes to respond to perceived concerns with far less
disruption, and at far less cost, than a whole new divisional
structure.
______
Mr. Chairman, Members of the Subcommittee: My name is David
Thompson. I am a Senior Circuit Judge of the United States Court of
Appeals for the Ninth Circuit. My chambers are located in San Diego,
California. I am also Chairman of the Ninth Circuit Court of Appeals'
Evaluation Committee, and it is in that capacity that I appear before
you today.
Thank you for the opportunity to present these remarks with regard
to your review of the Report of the Commission on Structural
Alternatives for the Federal Courts of Appeals regarding the Ninth
Circuit and Senate Bill 253, the Ninth Circuit Reorganization Act.
The Evaluation Committee was created by the Ninth Circuit in
response to perceived concerns raised by the White Commission Report.
The Committee's task however, is part of the Ninth Circuit's ongoing
annual reevaluation of its practices and procedures pursuant to its
Long Range Plan. The White Commission Report simply focused the task of
the Committee.
It is not the task of the Committee to quibble with the White
Commission Report. The strengths and deficiencies of that report have
been pointed out and analyzed by others. The task of the Evaluation
Committee is to accept the perceived concerns expressed in the White
Commission Report and by others and to respond to those concerns.
The Committes's mission statement was developed at its first
meeting on March 23, 1999. That mission is,
To examine the existing policies, practices and
administrative structure of the Ninth Circuit Court of Appeals,
in order to make recommendations to its judges to improve the
delivery of justice in the region it serves.
The Committee--consisting of Ninth Circuit judges from different
regions within the Circuit, as well as a representative from the
district court bench, a prominent scholar of the federal appellate
courts, and an experienced appellate practitioner--has met on a number
of occasions over the past months. The Committee has considered a wide
variety of issues within the following categories of subjects:
Consistency of Decisions
Regional Sensitivity and Outreach
Collegiality
Productivity
The En Banc Process
The work of the Committee is ongoing. None of the foregoing
subjects has been exhausted, although the Committee has considered and
given varying degrees of study and evaluation to each.
consistency of decisions
There is no objective evidence--none whatsoever--that decisions
rendered by the Ninth Circuit Court of Appeals are infected with
inconsistency to a degree greater than any other circuit. Because of
the Ninth Circuit's size, however, the perception is that there must be
inconsistencies in its decisions. How could there not be with so many
panels issuing so many opinions? The answer is that there is not a
significant number of inconsistencies in decisions and any conflicts
that have occurred have been resolved by the Circuit's en banc process.
The task of the Committee, however, is to increase the Circuit's
ability to recognize potential or perceived conflicts early on and deal
with them immediately. To do this the Committee is considering methods
that will enable judges of the district courts and practitioners to
bring perceived conflicts to the Court's attention. These methods
include establishing an ``electronic mailbox'' to receive such
communications, and participating in outreach programs to contact the
bench and bar throughout the Circuit through meetings and focus group
encounters.
In addition to increasing the Court's awareness of any potential
conflicts in filed decisions, the Committee is experimenting with
gathering data from all opinions before they are filed. To do this, the
Committee will draw upon the expertise of the Ninth Circuit's staff
attorneys. These attorneys are divided into areas of expertise--
criminal law, environmental law, immigration law, to name a few. The
staff examines all opinions sent to the clerk's office for filing--
before the opinions are filed. The staff has been asked to identify any
case that (a) expressly distinguishes one or more Ninth Circuit
precedents; (b) expressly rejects one or more precedents of other
circuits; (c) has a dissent; (d) holds a federal statute
unconstitutional; (e) holds a state statute or initiative measure
unconstitutional; or (f) holds invalid a published regulation of any
agency or department of the federal government. The idea is to give the
staff attorneys objective criteria with which to spot potential
conflicts and sensitive decisions and call those to the court's
attention. Members of the Evaluation Committee, on an individual judge
volunteer basis, will examine reports from the staff to determine
whether a conflict appears to be real or more likely falls within those
classes of cases in which a panel typically points out differences
between existing authority and the present case.
Currently, judges of the Court review opinions when they are first
published in slip opinion form. Conflicts may be discovered by this
process. It is anticipated, however, that the specialized work of the
staff attorneys applying objective criteria will increase the Circuit's
ability to identify any conflicts.
regional sensitivity and outreach
Responding to regional sensitivity, the Committee is experimenting
with the regional assignment of judges. Under this process, at least
one judge from the three administrative units in the Circuit--southern,
middle and northern--will sit on a three-judge panel hearing cases that
arise within that judge's ``home'' administrative region. Whether such
a regional assignment of judges will prove to be a good or a bad idea
we do not know. Those who think it's a good idea argue that it is
important to have a judge from the area where a case arises sit on a
panel that decides the case. Those who think it's a bad idea argue the
concept of regional assignment violates the principle of random
selection of judges, and that the law federal judges are called upon to
apply is uniform national law.
Regional sensitivity also covers outreach to the communities served
by the Ninth Circuit. For years, the Court has, on occasion, sat in
various cities throughout the Circuit where the Court ordinarily does
not sit. Those sittings, however, because of a lack of facilities and
the difficulty in gathering enough cases from a particular region to
fill a week's argument calendar, have not occurred as often as they
might have. The Court is currently experimenting with holding more
Court sittings in more cities. The intention is to combine these
sittings with bench-bar activities to develop communication with all
areas of the circuit and find out if there are problems which the Court
should confront.
collegiality
In addressing the subject of collegiality, the first task is to
define what we mean by that term. If the meaning is derived from the
usual comment made of a large circuit that there are too many judges to
permit the growth of a warm and fuzzy feeling among them, that, to put
it bluntly, is ridiculous. To the contrary, judges in a larger circuit
are not thrown together as often as in smaller circuits, thus reducing
occasions for potential tension between differing and strong
personalities.
If we mean by ``collegiality'' the ability of judges to enjoy each
other's company at social gatherings, that is a non-problem because
even the most ardent opponents can hit it off with one another for a
limited time when they are not called upon to come to grips with issues
of substance that divide them.
More aptly, I believe the issue of collegiality can be defined as
the ability of judges to hammer out opinions, with knowledge of the
idiosyncracies of each other enhanced by having sat together
frequently. I believe this is the concept of collegiality expressed in
the White Commission Report. It assumes that the law of a circuit will
be more consistent (either consistently right or consistently wrong) if
the judges of that court over a period of time come to some common
understanding of what it will take to get at least two of three judges
on a panel to agree to an opinion. This seems to be the aspect of
collegiality that we, as a Committee, should be studying. In any event,
we are proceeding with defining the term (which the White Commission
referred to as ``elusive'') and determining how we should respond to
the concern that collegiality, whatever it means, is lacking in a large
circuit, and if it is, whether it impacts the delivery of justice to
any significant degree.
productivity
The distinguished Senator who chairs the Subcommittee on
Administrative Oversight and the Courts has remarked that to accomplish
a big job doesn't necessarily require more people to do the work; it
requires people to work smarter. The Ninth Circuit has taken this view
to heart as it has coped with extreme vacancies in the number of its
active judges. For a good portion of the past few years, the Court has
operated with two-thirds or less of its full, active judge complement.
The Court has 28 active judgeship slots, and only 21 are currently
filled. Regardless of where the blame lies for this failure to provide
the Ninth Circuit with the judges it needs to do its work, the Court
has held its own. Are the Ninth Circuit judges working hard? You bet
they are! The Ninth Circuit is among the fastest, if not the fastest,
in filing decisions following oral argument. The challenge, however, is
to work smarter.
The Evaluation Committee has under consideration the possibility of
mounting an ``assault'' on the volume of pending cases. To do this, the
Circuit would assemble panels of judges to attack certain batches of
cases, those with similar issues or at least those falling within the
same category of law. Panels would decide one after another of these
cases as quickly as possible, perhaps hearing oral argument in combined
cases which raise common issues. The Court is already doing this to
some extent in its calendaring process, but the assault would involve a
major effort by all judges of the Court, senior and active alike. The
obvious downside of this is that to move judges from what they are
currently doing to a new task may not result in any net gain. This
proposal is currently under consideration.
Using some features of the ``assault'' concept, the Committee is
currently experimenting with increasing the identification of cases
with similar issues and assigning a lead case or cases to a particular
panel, notifying the parties in all of the following cases that a
decision affecting their case will be made by the lead case. We
anticipate lawyers for parties in following cases may participate in
sharpening the briefing and argument in the lead case. The lead-case
concept concentrates the decisional process in one three-judge panel,
rather than defusing it among a number of judges on different panels.
Once a decision in the lead case is made, the following cases should
settle, or at least they could be disposed of without extensive
disposition time.
Increased productivity has already been achieved in the Ninth
Circuit by the use of the Court's motions and screening calendars. Each
month, a special screening panel of three judges sits in San Francisco.
These special panels are deciding an average of 340 motions, and
disposing of 140 appeals on the merits, every month. This is in
addition to the Court's regular work. If the Court had more judges, it
could increase this output. Without more judges the Court seems to be
at its limit in this area, but the Committee is nonetheless trying to
figure out some way to increase this aspect of the Court's
productivity.
the en banc process
As you know, the Ninth Circuit has a limited en banc. When a case
is taken en banc, 11 judges of the Court sit as the en banc court. With
the current active judge complement of 21 judges, this represents a
majority of the active judges of the Court. But it does not include all
of the active judges. A perceived concern is that because all of the
active judges do not sit on the en banc court, the en banc decision
does not reflect the views of all judges.
In considering this perceived concern, the Committee enlisted the
assistance of academic experts. These experts were drawn from a variety
of disciplines. They are: Professor Linda Cohen, Department of
Economics, University of California, Irvine; Professor John Ferejohn,
Hoover Institute, Stanford, California; Professor Lewis Kornhauser, New
York University School of Law; Professor Matt McCubbins, Department of
Political Science, University of California, San Diego; and Professor
Roger Noll, Department of Economics, Stanford University, California.
We provided this distinguished group of scholars with copies of the
White Commission Report, together with the rules, procedures and
statistics relating to the Ninth Circuit's en banc court process. The
findings of this group were that the Court could achieve approximately
93 percent representation of the views of all judges of the court if
the limited en banc Court consisted of 7, yes seven judges. Increasing
that number to 11 achieved a representative percentage of approximately
95 percent, and increasing the number to 13 increased the percentage to
about 96 percent. This scientific report indicates there would be
little to gain from the standpoint of statistical reliability by
increasing the number of judges on the en banc court.
Nevertheless, the Evaluation Committee recognizes that the
perception of justice is as important as justice itself. If the
perception is that there should be more judges on the en banc court,
increasing the number of judges on the en banc court is something the
Court should consider and act upon. The Committee intends to make a
recommendation to the Court on this subject at the Court's next meeting
on July 27, 1999.
Another facet of the en banc process is the ease, or lack thereof,
by which a case is taken en banc. Justice O'Connor has suggested that
the Ninth Circuit should take more cases en banc. One way to achieve
this would be to decrease the number of judges required to vote for en
banc. Currently, to take a case en banc requires the affirmative vote
of at least a majority of the active judges of the Court. By contrast,
in the Supreme Court, certiorari is granted on the vote of four of the
nine justices. Question: Should the Ninth Circuit consider adopting a
formula by which four-ninths (roughly 45 percent) of the votes of its
active judges would be enough to take a case en banc? This would
require a statutory change, but the Committee is considering something
along this line. As we consider the issue, however, we have in mind
that increasing the number of cases taken en banc as well as increasing
the number of judges on the en banc court will most assuredly increase
the judges' workload--on a Court already operating one-third below its
authorized strength. This increased workload might be offset to some
extent by choosing judges to sit on an en banc court to hear several
cases at one time, rather than choosing judges to sit on separate en
banc courts for each en banc case. To this end, the Court has adopted a
procedure, on an experimental basis, for the en banc court to sit
approximately quarterly throughout the year, hearing a number of cases,
rather than having a different en banc court selected to hear each en
banc case.
conclusion
There is no ``conclusion'' to this statement. As stated at the
outset, the work of the Evaluation Committee is ongoing. The Ninth
Circuit has always been willing to re-evaluate itself, its performance,
and to experiment with innovations that would lead to greater
efficiency and effectiveness. The annual evaluation of the Ninth
Circuit Long Range Plan is specifically designed to do so. Concerns
that have surfaced in the Final Report of the Commission can be
addressed with far less disruption than a whole new divisional
structure.
The Ninth Circuit, through its Evaluation Committee, is in the
midst of reevaluating itself, its performance and experimenting with
innovations to lead to greater efficiency and effectiveness. The Ninth
Circuit Court of Appeals can accomplish these goals, and address the
Commission's concerns, with far less cost and far less disruption than
a whole new divisional structure.
Respectfully submitted,
David R. Thompson,
Senior Circuit Judge, Ninth Circuit Court
of Appeals, Chair of the Evaluation Committee.