[Congressional Record Volume 141, Number 118 (Thursday, July 20, 1995)]
[Senate]
[Pages S10436-S10438]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


OPPOSITION TO S. 956, THE NINTH CIRCUIT COURT OF APPEALS REORGANIZATION 
                              ACT OF 1995

 Mrs. MURRAY. Mr. President, I rise in opposition to S. 956, a 
bill to divide the ninth judicial circuit into two circuits.
  This is the fourth time since 1983 that a bill to split the ninth 
circuit has been introduced in the U.S. Senate. The proposal has failed 
to become law because the ninth circuit is operating well and providing 
uniform and consistent interpretation of Federal laws across the nine 
Western States, and the territories of Guam and the Northern Mariana 
Islands.
  The courts of the ninth circuit are functioning well, and, in many 
instances, serve as models for the rest of the country. The ninth 
circuit has prided itself on its experiments in judicial 
administration, and has been a national leader in developing innovative 
caseload management and court administration techniques.
  The vast majority of judges, lawyers, and bar organizations in the 
ninth circuit have voted on several occasions against the division of 
the circuit.
  Mr. President, I urge my colleagues to oppose this bill and to resist 
the temptation to meddle with an institution that is successfully 
administering justice in the American West.
  Just 4 years ago, a comprehensive subcommittee hearing was held in 
the Senate on nearly identical legislation, and the proposal failed to 
emerge from committee. The proponents of S. 956 have identified no new 
reasons or change of circumstances to justify reopening this issue.
  Mr. President, the ninth judicial circuit has prepared a detailed 
position paper opposing S. 956. I agree with the circuit's reasoning, 
and I commend this paper to my colleagues. I also urge them to join me 
in opposing this bill which is both unwise and unnecessary.
  I ask that the complete text of the ``Position Paper in Opposition to 
S. 956--Ninth Circuit Court of Appeals Reorganization Act of 1995'' be 
printed in the Record.
  The material follows:
Position Paper in Opposition to S. 956--Ninth Circuit Court of Appeals 
                  Reorganization Act of 1995 (6/22/95)

       Prepared by: The Office of the Circuit Executive for the 
     United States Courts for the Ninth Circuit, P.O. Box 193846, 
     San Francisco, California 94119-3486; Tel: 415-744-6150/Fax: 
     415-744-6179. [6/30/95]
       Proposed legislation: S. 956 would divide the present Ninth 
     Circuit into two unequal-sized circuits. The new Twelfth 
     Circuit would consist of the states of Alaska, Idaho, 
     Montana, Oregon, and Washington (6 districts), with 9 active 
     circuit judges. The new Ninth Circuit would consist of the 
     states of Arizona, California, Hawaii, and Nevada, and the 
     territories of Guam and the Northern Mariana Islands (9 
     districts), with 19 active circuit judges.
       The Ninth Circuit opposes S. 956. The Ninth Circuit is 
     functioning well and has devised innovative ways of managing 
     its caseload that are models for other circuits. As the 
     nation's largest circuit, it benefits from significant 
     advantages because of its size and believes division of the 
     circuit is unnecessary and unwise. The Circuit Executive's 
     Office for the United States Courts for the Ninth Circuit has 
     prepared the following information in ``question and answer'' 
     format to assist decisionmakers to understand the circuit's 
     position on S. 956.


               1. what would the proposed legislation do?

       S. 956 would create two courts--one 19-judge court and one 
     9-judge court--in place of a single 28-judge court. A basic 
     problem with this proposal is that it creates more 
     administrative problems than it solves. Quantitatively, such 
     a circuit court would have a very small caseload. The 
     aggregate number of cases in such a circuit based on the most 
     recent statistics would be 1935,\1\ making it the circuit 
     court with the second smallest caseload in the country,\2\ 
     with only the First Circuit court having fewer cases. Of the 
     11 

[[Page S10437]]
     regional circuits, the circuit court with the median volume is the 
     Second, with 3,986 cases; the proposed northern circuit would 
     be less than half that number. Take away the northern states, 
     and the Ninth Circuit court would still have the largest 
     volume in the country. In short, such a proposal creates a 
     very small circuit and gives not much relief.
       In general, S. 956 presumes that two smaller circuits will 
     do a better job of maintaining consistency and deciding cases 
     promptly than the present circuit. The proposal ignores the 
     central fact of appellate dockets: caseloads are constantly 
     growing and dividing the circuit would simply create two 
     courts with increasing caseloads without dealing with the 
     fundamental problems resulting from expanding caseloads with 
     no increase in judicial resources.
    2. how does this bill differ from earlier proposed legislation?

       This is the ninth legislative proposal to split the Ninth 
     Circuit since 1940. It is nearly identical (except for the 
     alignment of Hawaii and the Territories) to measures 
     introduced by Senator Gorton in 1983, 1989, and 1991. Each of 
     those measures failed to emerge from committee and died at 
     the conclusion of the legislative session. The Subcommittee 
     on Courts and Administrative Practice of the Senate Committee 
     on the Judiciary conducted a legislative hearing on the 1989 
     bill (S. 948) on March 6, 1990. The sponsors of the current 
     bill have advanced no reason for dividing the circuit that 
     was not fully considered and rejected in 1990. They have 
     pointed to no change in circumstances that would justify yet 
     another examination of this issue.


              3. are there drawbacks to the proposed bill?

       The Ninth Circuit has functioned successfully in its 
     present configuration for over 100 years. Any effort to 
     abolish a successful, established institution should be 
     cautiously examined. The proposed bill could create serious 
     legal and administrative problems and costs that do not now 
     exist:
       (1) the potential for inconsistent law relating to 
     admiralty, commercial trade, and utilities along the Western 
     seaboard, including Alaska, Hawaii, and the Territories;
       (2) the opportunity for litigants to forum shop by filing 
     their cases in whichever circuit, northern or southern, they 
     feel is most sympathetic to their cause;
       (3) the substantial cost of setting up duplicative 
     administrative structures;
       (4) the loss of advantages of size (see Question #4, 
     below);
       (5) the rejection of the expressed will of the vast 
     majority of the judges and lawyers in the circuit who oppose 
     its division.
       Common sense suggests the inadvisability of creating a new 
     regional circuit that would require duplication of functions 
     that are already being satisfactorily performed in a larger 
     circuit. Administratively, the creation of a new circuit 
     would require duplicative offices of clerk of court, circuit 
     executive, staff attorneys, settlement attorneys, and 
     library, as well as courtrooms, mail and computer facilities. 
     In addition, approximately 40,000 square feet or new 
     headquarters space would be required, all of which would 
     duplicate offices and space in San Francisco. Further, a 
     small circuit, with its concomitant small caseload, would 
     underutilize judicial resources and reduce the opportunities 
     for efficiencies available to a larger circuit.
       Lawyers expressed particular concern that dividing the 
     extended coastline in the West between two circuits would 
     create inconsistent and conflicting application of maritime, 
     commercial, and utility law in the two circuits, making 
     commerce more difficult and costly, and requiring them to 
     research the law of two circuits for every potential cross-
     circuit transaction. Potential inconsistencies would be 
     especially troubling in the application of utility rates 
     along the entire Pacific seaboard by the Bonneville Power 
     Administration. These rate and administrative disputes should 
     remain in a single service area, the Ninth Circuit.
       On four occasions in the past 15 years, the federal judges 
     in the Ninth Circuit and elected representatives of 
     practicing lawyers who participate in the Ninth Circuit 
     Judicial Conference have voted overwhelmingly in opposition 
     to splitting the circuit. The current Almanac of the Federal 
     Judiciary, Vol. 2, based on extensive polling, reports that 
     the lawyers ``almost unanimously praise'' the court, and, 
     with regard to circuit splitting, ``all seem to agree that 
     such a division would be difficult and probably 
     unsatisfactory.'' (1995-1, 9th Cir.)
              4. are there advantages to a large circuit?

       A single court of appeals serving a large geographic region 
     promotes uniformity and consistency in the law and 
     facilitates trade and commerce by contributing to stability 
     and orderly progress. In many respects, the size of the Ninth 
     Circuit is an asset that has improved both decisionmaking and 
     judicial administration. The court of appeals is strengthened 
     and enriched, and the inevitable tendency to regional 
     parochialism is weakened, by the variety and diversity of 
     backgrounds of its judges drawn from the nine states 
     comprising the circuit. The size of the circuit has also 
     allowed the circuit to draw upon a large pool of district and 
     bankruptcy judges for temporary assignment to neighboring 
     districts with a temporary but acute need for judicial 
     assistance.
       The Ninth Circuit is a national leader in developing 
     innovative solutions to caseload and administrative 
     challenges. The ABA Appellate Practice Committee's Report 
     applauded three specific operational efficiencies:
       . . .issue classification, aggressive use of staff 
     attorneys, and a limited en banc-[that] were developed by the 
     Ninth Circuit precisely to address the issues of caseload and 
     judgeship growth that the Subcommittee identified, and hold 
     promise for other circuits as they continue to grow. (at p. 
     10).
       The Ninth Circuit has served as a laboratory for 
     experimentation in a host of other areas--from decentralized 
     budgeting to cameras in the courts, from block case 
     designations to improved state-federal judicial relations, 
     from alternative dispute resolution to appellate 
     commissioners, from improved tribal court relations to 
     alternative forms of capital case representation. The results 
     have inured to the benefit of the entire Judiciary. As the 
     congressionally-mandated Federal Courts Study Committee noted 
     in 1990, ``Perhaps the Ninth Circuit presents a workable 
     alternative to the traditional model.'' Final Report of the 
     Federal Courts Study Committee (1990).
                5. what is the position of the sponsors?

       In remarks introducing S. 853 (the immediate predecessor of 
     S. 956\3\), Senator Gorton of Washington asserted the 
     following grounds for the proposal: (1) a decrease in 
     consistency of decisions due to size; (2) unmanageable 
     caseloads; (3) inability to appreciate the interests of the 
     Northwest; and (4) a decline in the performance of the 
     circuit. 141 Cong. Rec. S7504 (daily ed. May 25, 1995) 
     (statement of Sen. Gorton). Senator Burns of Montana echoed 
     his colleague's concerns and suggested employment and local 
     economic stability are threatened by delays in resolving 
     lawsuits affecting timbering, mining, and water development. 
     Delays in criminal appeals, especially those involving the 
     death penalty, also are of concern to the Senators. 141 Cong. 
     Rec. S7504 (daily ed. May 25, 1995) (statement of Sen. Burns) 
     The circuit's specific responses to these contentions are set 
     forth in the following sections.


     6. has the size of the circuit adversely affected consistency?

       Consistency of court of appeals decisions is important to 
     provide coherent guidance to lower courts and litigants. The 
     Ninth Circuit has instituted case management devices that 
     have effectively reduced conflicts between panels and 
     maintained a high level of consistency in its decisions.
       Since 1980, the use of a limited en banc panel to resolve 
     intracircuit conflicts has proven highly effective. All 28 
     active judges participate in determining whether a case will 
     be heard en banc. Each call for an en banc vote leads to 
     careful evaluation of the development of the law of the 
     circuit in that area. If a majority of the judges votes to 
     hear a case en banc (which happens less than a dozen times a 
     year), ten members of the court chosen at random plus the 
     chief judge serve as the limited en banc court. Judges and 
     lawyers have expressed a high degree of satisfaction with the 
     limited en banc process; only a handful of requests have been 
     made for a full court rehearing after the limited en banc 
     panel has issued a decision, and none have been granted.
       An objective, highly-praised scholarly study of consistency 
     of the law in the Ninth Circuit concluded ``the pattern of 
     [multiple relevant precedents] exemplified by high visibility 
     issues. . . is not characteristic of Ninth Circuit 
     jurisprudence generally. Nor is intracircuit conflict.'' 
     Restructuring Justice: The Innovations of the Ninth Circuit 
     and The Future of the Federal Courts (1990). A recent FJC 
     study reached a similar conclusion:
       In sum, despite concerns about the proliferation of 
     precedent as the courts of appeals grow, there is currently 
     little evidence that intracircuit inconsistency is a 
     significant problem. Also, there is little evidence that 
     whatever intracircuit conflict exists is strongly correlated 
     with circuit size.
       Structural and Other Alternatives for the Federal Courts of 
     Appeals (1993).
       Of greater concern is the potential for increased 
     Intercircuit conflicts that would be spawned by the division 
     of circuits. Dividing the Ninth Circuit would place an 
     additional burden on the United States Supreme Court to 
     resolve conflicts that are now handled internally within the 
     circuit.
       Nor is keeping abreast of the decisions of the Ninth 
     Circuit a significant problem. For the past seven years, the 
     number of published opinions issued by the circuit has 
     remained relatively constant. In large part due to 
     efficiencies and innovative case management methods pioneered 
     in the circuit, the court has been able to accurately 
     identify those selected precedential cases that truly merit 
     publication and those routine cases which are most 
     appropriately disposed of by a written decision sent only to 
     the parties.


  7. Is the Ninth Circuit's Caseload Excessive When Compared to Other 
                               Circuits?

       While the caseload for the Ninth Circuit Court of Appeals 
     is the highest in the nation in absolute numbers, the 
     caseload level is clearly not excessive when compared to 
     other circuits, using either of two standard measurement 
     approaches.
       Because federal statutes require that nearly all of the 
     work of an appellate court be conducted by three-judge 
     panels, the most accurate measure of a court's ability to 
     manage its caseload is the number of appeals filed and 
     terminated per panel. In 1994, the Ninth Circuit stood at 868 
     appeals filed per panel, very close to the median of 832 and 

[[Page S10438]]
     substantially below the numbers for the two circuits that emerged from 
     the split of the Fifth Circuit in 1980. For the same year, 
     the
      Ninth Circuit stood at 914 appeals terminated per panel, 
     slightly above the median of 866.
       Caseload levels may also be measured by case terminations 
     per judge. The current Ninth Circuit rate of merit case 
     terminations per judge is 446, a number which is exactly the 
     national median. By either measure, the caseload levels in 
     the Ninth Circuit approach the middle range for federal 
     appellate judges.
       In contrast, under the proposed bill, the new Twelfth 
     Circuit, with nine judges, would seriously underutilize its 
     judicial resources and create huge disparities between the 
     two circuits. Using projected Twelfth Circuit filings of 
     1935, a nine-judge court would have 645 filings per panel. 
     The new Ninth Circuit, with 19 judges and filings of 6391, 
     would have 1014 filings per panel, or 57% more cases per 
     panel when compared to the judges in the Twelfth Circuit and 
     the third highest per panel filings figure in the nation.


         7. is regionalism appropriate for an appellate court?

       Sponsors of the legislation to divide the circuit cite the 
     need for a court free from domination by California judges 
     and California judicial philosophy. They assert that the 
     Northwest states confront emerging issues that are unique to 
     that region and that cannot be fully appreciated or addressed 
     from a California perspective.
       The premise that a judge's place of residence prejudices 
     his or her determination of cases was rejected as completely 
     unacceptable by former Chief Justice Warren Burger in his 
     remarks concerning an earlier version of the sponsor's 
     legislation: ``I find it a very offensive statement to be 
     made that a United States judge, having taken the oath of 
     office, is going to be biased because of the economic 
     conditions of his own jurisdiction.'' (Record, August 2, 
     1991, S 12277) Calling an earlier version of legislation to 
     split the circuit ``environmental gerrymandering,'' then-
     Senator Pete Wilson of California echoed Justice Burger's 
     concerns, stating:
       The judges of the Circuit are there to apply the law, not 
     make it. Second, even in their application of the law, it is 
     not intended that federal courts abide by a sense of 
     localism. That is the role of the state and local courts. 
     Ninth Circuit Court of Appeals Reorganization Act of 1989: 
     Hearings on S. 948 Before the Subcomm. on Courts and 
     Administrative Practice of the Senate Comm. on the Judiciary, 
     101st Cong., 2d Sess. 286 (1990) (written statement of Hon. 
     Pete Wilson, U.S. Senate).
       Similarly, the ABA Appellate Practice Committee's 
     Subcommittee To Study Circuit Size reported that ``a majority 
     of the Subcommittee questions whether regional differences 
     should be a criterion in determining circuit size. * * * The 
     role of circuit courts is primarily to apply federal law--a 
     law that with few exceptions is to be applied uniformly 
     across the land.'' (at p. 3).


         8. What Is THE Ninth Circuit's Record of Performance?

       One measure of the efficiency of an appellate court is the 
     average amount of time required to decide a case from the 
     period between filing a notice of appeal and rendering of a 
     final decision. In 1983, when an earlier version of 
     legislation to split the circuit was proposed, the court had 
     4583 new filings and the average length of time from filing 
     the notice of appeal to final decision was 10.5 months. In 
     late 1989, the court of appeals headquarter (where cases are 
     processed) was badly damaged and closed by the Loma Prieta 
     earthquake in San Francisco. Court staff was scattered among 
     six different temporary buildings until late 1991. During 
     this period, the court has 7257 new filings and the average 
     length of time from filing the notice of appeal to final 
     decision role to 15.6 months. Since the court was 
     consolidated in a single location in 1991, processing times 
     have substantially improved. In 1994, the most recent period 
     for which figures are available, the court received 8092 new 
     filings, and, despite vacancies, had reduced the average 
     length of time from filing the notice of appeal to final 
     decision to 14.5 months, slightly less than the time required 
     in the Eleventh Circuit.
       The average time from filing to disposition, however, does 
     not accurately reflect the time the cases are actually in the 
     judges' hands. In the Ninth Circuit, the average time from 
     oral argument submission to disposition--that is, the actual 
     time the judges have the cases in their hands--is 1.9 months, 
     or .5 months less than the national average. In short, what 
     the court needs to reduce disposition times is more judges. 
     Hundreds of cases are available to be heard by judges; there 
     simply are not enough judges to hear them. This is the 
     ``swell'' in pending cases referred to when S. 853 was 
     introduced. 141 Cong. Rec. S7504 (daily ed. May 25. 1995) For 
     this reason, in 1992 the Ninth Circuit requested additional 
     judgeships. The Judicial Conference of the United States 
     endorsed the request which is now pending before Congress. 
     With four current vacancies on the court, the average time to 
     disposition is unlikely to improve substantially until new 
     judges come on board. Obviously this central problem would 
     not be alleviated by dividing the circuit and the proposed 
     split would materially increase the caseload of judges in the 
     remaining Ninth Circuit.


       9. is circuit division the solution to growing caseloads?

       The presumption that increasing the number of circuits 
     would solve the problem of expanding federal court caseloads 
     is the underlying fallacy of S. 956. Cases are resolved by 
     judges, not circuits, and increasing the number of circuits 
     without increasing the number of judges would only exacerbate 
     the problem.
       Even with the proposed division of the Ninth Circuit, the 
     population shift and growth that is increasing litigation in 
     the West would continue to increase the workload of the two 
     new circuits. The old Fifth Circuit encountered the same 
     situation when it was divided into the Fifth and Eleventh 
     Circuits in 1980. Before the split, the Fifth Circuit had 
     4914 filings and 27 judgeships, compared to the Ninth 
     Circuit's 4262 filings and 23 judgeships. By 1994, the 
     combined Fifth and Eleventh Circuits' filings had increased 
     241% to 11,858, while the Ninth Circuit's had increased 190% 
     to 8115. Dividing the Fifth Circuit had no effect on the 
     growth of the caseload, which is at the root of the size 
     issue.
       In its study on circuit size, the ABA Appellate Practice 
     Committee's Subcommittee to Study Circuit Size ``found no 
     compelling reasons why circuit courts of various sizes--
     ranging from a few judges to fifty--cannot effectively meet 
     the caseload challenge. Indeed for every argument in favor
      of smaller circuits, there is an equally compelling argument 
     for larger circuits.'' Report (October 1992), as p. 5. The 
     Federal Judicial Center's recent analysis of structural 
     alternatives in response to the mandate of the Federal 
     Court Study Committee concluded:
       [T]here can be no doubt that the system and its judges are 
     under stress. That stress derives primarily from the 
     continuing expansion of federal jurisdiction without a 
     concomitant increase in resources. It does not appear to be a 
     stress that would be significantly relieved by structural 
     change to the appellate system at this time. Structural and 
     other Alternatives for the Federal Course of appeals (1993), 
     at p. 155.
       The Ninth Circuit is functioning well and is handling its 
     caseload in a timely and responsible manner. It is a leader 
     in innovative case management techniques and its size offers 
     numerous advantages, including: the application of a uniform 
     body of law to wide geographic area, economies of scale in 
     case processing, the ability to serve as a laboratory for 
     experimentation in judicial administration and adjudication, 
     and the diversity of background of its members. The vast 
     majority of judges and lawyers in the circuit support 
     retention of the circuit in its present form and reject 
     circuit division as a response to the caseload crisis.
       Further Information Relating to the Issue of Splitting the 
     Ninth Circuit:
       ABA Appellate practice Committee, subcommittee to Study 
     Circuit Size, Report (October 1992).
       Baker, Thomas, ``On Redrawing Circuit Boundaries--Why the 
     Proposal to Divide the United States Court of Appeals for the 
     Ninth Circuit Is Not Such a Good Idea,'' 22 Ariz. S.L.J. 917 
     (1900).
       Federal Judicial Center, J. McKenna, Structural and Other 
     Alternatives for the Federal Courts of Appeals (1993).
       Final Report of the Federal Courts Study Committee (1990).
       Fourth Biennial Report to Congress on the Implementation of 
     Section 6 of the Omnibus Judgeship Act of 1978 (1989).
       Hellman, A. ed., Restructuring Justice: The innovations of 
     the Ninth Circuit and The Future of the Federal Courts 
     (1990).
       Ninth Circuit Position Paper--1991.
       Ninth Circuit Position Paper--1989.
       Proposed Long Range Plan for the Federal Courts (1995).
       U.S. Senate, Committee on the Judiciary, Ninth Circuit 
     Court of Appeals Reorganization Act of 1989: hearings on S. 
     948 Before the Subcomm. on the Judiciary, 101st Cong., 2d 
     Sess. (1990).
       1. The caseload figures for the proposed new Ninth and new 
     Twelfth Circuits are based upon internal court statistics for 
     FY 1994.
       2. All references are to regional circuits (the First 
     through the Eleventh) and exclude comparisons to the two 
     circuits that are based upon special jurisdiction rather than 
     geography (the District of Columbia and the Federal 
     Circuits).
       3. Senator Gorton's remarks were made when he introduced S. 
     853 on May 25, 1995. That bill created a new Twelfth Circuit 
     with seven judges and a new Ninth Circuit with nineteen 
     judges. On June 22, 1995, Senator Gorton introduced a 
     corrected bill that is identical to S. 853 except for a new 
     Twelfth Circuit with nine judges and a new Ninth Circuit with 
     nineteen judges. This paper is a response to the new bill and 
     to the remarks made that the introduction of the earlier 
     bill, S. 853.
     

                          ____________________