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Legislative Update

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This month's Update contains excerpts from an April 7 hearing of the Senate Judiciary Committee on various proposals to split the Ninth Circuit. The bills are S. 2278 (Ensign, R-Nev.), S. 562 (Murkowski, R-Ark.) and H.R. 2723 (Simpson, R-Idaho). This appeals court is by far the nation's largest, covering nine Western states and Pacific territories—40 percent of the United States. It has 28 judgeships, 11 more than the next largest circuit. Congress has considered proposals to split the Ninth Circuit for more than 20 years.

Sen. Sessions: The Ninth Circuit is the largest circuit in our system, by far. It stretches from the Arctic Circle to the border of Mexico, and rules almost one-fifth of the population of the country. It now has 28 authorized circuit judgeships—11 more than the next circuit, and almost 17 more than the average circuit. It also has 21 senior judges. It is therefore not much of an exaggeration to say that the Ninth Circuit panel assigned to a particular case is truly a luck-of-the-draw panel.

The caseload of this large circuit has exploded in recent years. In 1997, about 8,700 appeals were filed in the Ninth Circuit. In 2003, there were almost 13,000—a 48.1 percent increase, or more than 4,000 more appeals, in just six years. The Ninth Circuit's efficiency in deciphering appeals—that is, the time the court takes between the filing of a notice of appeals and the final disposition of a case—consistently has lagged far behind other circuits.

In 2003, for instance, the Ninth Circuit had 418 cases pending for three months or more—25 shy of the next five circuits combined. The next highest circuit had 98 such cases. One hundred thirty-eight cases were pending in the Ninth Circuit for over a year. This was more than every other circuit in the federal system combined.

Because the circuit has so many judges, it is difficult to preserve the collegiality that is so important to judicial decision-making. Additionally, the Ninth Circuit employs a limited en banc procedure under which it is not the full court of appeals, but a random draw of 10 judges, plus the chief judge, that reviews three-judge panel decisions. This can result—and has resulted—in a mere six judges making the law for the entire circuit. In all other circuits, en banc means en banc—the full court.

Finally, with so many cases decided each year, it is hard for any one judge to read the decisions of his or her peers. And it is virtually impossible for lawyers who practice in the circuit to stay abreast of the law. These factors—loss of collegiality, the limited en banc and an inability to monitor new law—undermine the goal of maintaining a coherent law of the circuit.

Sen. Leahy (D-Vt.): Proponents of the split have long criticized the Ninth Circuit for its size and caseload. They might be interested to note that last year the average length of turnaround for cases before the Ninth Circuit was a month less than the average case lasted in 2002. Further, the Ninth Circuit's average turnaround time has improved 16 percent relative to the national average since 1997.

Some of the proponents of these bills have argued that smaller, rural states are disadvantaged by being lumped into a circuit that contains a state the size of California with a substantial urban population base. But surely, they would not argue that Vermont and New Hampshire should be granted their emancipation from the larger, more urban states in the Second and First Circuits. Our federal bench should not be manipulated simply to make each circuit homogeneous.

There are a variety of policy reasons that the proposals to split the Ninth Circuit are troubling. At the forefront of my concerns is the cost of this proposal. In these times of tight budgets, both at the federal level and for the courts in particular, to create an additional one or two federal circuits and to provide for the additional infrastructure and associated staffing arrangements to accommodate them is problematic.

Sen. Ensign (R-Nev.): Earlier proposals to divide the Ninth Circuit have tended to focus on a division in two. Unfortunately, a division in two won't fully address the population trends of the Western states and will not resolve the stifling overload of cases the Ninth Circuit currently faces.

The problems of a circuit this large lead to conflicting interpretations and a lack of coherence in interpreting the law that affect not only the practitioners but also the citizens of these states. When the Ninth Circuit can hand down two decisions that address the same issue on the very same day—one that establishes a two-part test and the other a three-part test—the people of the Western states face a very serious problem in the administration of justice.

My proposal for division of the Ninth Circuit, S. 2278, addresses these concerns and provides for judicial expediency well into the future. By creating a new Twelfth and Thirteenth Circuit, we are able to grapple with the booming populations of the Sunbelt states and provide better administration to the people of the new Ninth Circuit.

The new Ninth Circuit Court would be allotted five additional permanent judges and two new temporary judges, all to be nominated in the next presidential term. My proposal also allows for each chief judge in the new Ninth, Twelfth and Thirteenth Circuits to temporarily allocate resources between the circuits to ensure a smooth transition. Additionally, my proposal ensures that all cases currently pending in the Ninth Circuit prior to the effectiveness date of the legislation will be resolved as if the split were not in effect, meaning all current litigants would be unaffected by any division.

Judge Wallace: My name is J. Clifford Wallace. I have been a federal judge for 34 years, initially on the district court, and as a member of the Ninth Circuit since 1972. I served as chief judge from Feb. 1, 1991, to March 1, 1996.

This is not the first time I have testified in opposition to division of the Ninth Circuit, nor do I suppose it will be my last. My view is that the arguments in support of the current bills suffer from the same flaw as their predecessors: They fail to meet their burden of proof.

Circuit restructuring should occur only if compelling empirical evidence demonstrates adjudicative of consistent circuit law in the face of increasing workload. Critics maintain that the law in a large court is inherently unstable and unpredictable. It is true that the number of possible panel permutations in a court increases incrementally and that one cannot predict which panel will hear one's appeal. It does not follow, however, that the law in such a court will be unpredictable or unstable.

Of course, for lawyers and litigants, the best guide for predicting the outcome of any litigation is a case on point. The more published decisions from which to work, the more guidance the lawyers—and the trial court judges—receive.

Attorneys who practice law in small jurisdictions, where there is little precedent, know how difficult it is to plan or to predict. It is the small court that leaves lawyers and litigants guessing. A larger court is capable of providing sufficient case law to provide truly useful precedent; it is precisely in such a court where one can find a case on point. In the Ninth Circuit, a court of 11 judges is designated when an en banc hearing is required. The full court may overrule the en banc court, but we have never voted to do so. Why? Because the court is willing to rely on 11 of its judges for purposes of finality. Thus, unless judges believe they must have their hands on every en banc pencil, there is an alternative to full-court en bancs in large court. Is it wrong? No, just different. It magnifies the efficiencies of a large court and eliminates what might be one of its inefficiencies.

The limited en banc appears to allow more efficient use of court of appeals resources and should be available to the other courts of appeals, even those that do not regularly have 15 active judges. Certainly courts could be more collegial, with less need to sit en banc, if we had 20 mini-circuits of just nine judges each, and no large courts. But this would fragment the federal law much more than multiple panels within a large circuit. Under this alternative, continuing growth would mandate continuing division. How would the litigants cope with 30 circuits, with 40 circuits? Yet, if you adopt the principle of division to keep circuit courts small, you must eventually confront the balkanization of federal law.

Dividing larger circuits into smaller circuits will exacerbate the problem of the prior-panel rule because it is without binding force when the prior panel is from a neighboring circuit. Thus, the primary concerns about large courts—instability and unpredictability in the law—can only be worsened by dividing them into smaller circuits.

Judge Schroeder: My name is Mary M. Schroeder, and I am the chief judge of the U.S. Court of Appeals for the Ninth Circuit. When we discuss any of the proposals before you, we are not just talking about splitting up the judges of the existing court of appeals into separate courts of appeals. We are actually talking about dividing the entire and well-integrated administrative structure of the Ninth Circuit to create two or even three separate and largely duplicative administrative structures. This is costly and, I submit, wasteful.

Although there are nine states in the Ninth Circuit, more than two-thirds of the workload of the court of appeals is from California. There is no way to divide the circuit into multiple circuits of roughly proportionate size without dividing California. None of the proposals before you would do that, so like Goldilocks, we find that one is too big and another too small.

As chief, I am very proud of the manner in which we have been able to administer a rapidly growing caseload with innovative procedures possible only in a court with large judicial resources. The Bankruptcy Appellate Panel has successfully resolved a large number of bankruptcy appeals which would otherwise be decided by circuit judges. Most important, the existence of a large circuit, with all circuit, district and bankruptcy judges bound by the same circuit law, gives us the flexibility to deal with the large concentrations of population and enormous empty spaces of the west.

We have had discussions within our court about this subject from time to time for several decades, but the great majority of our judges have consistently opposed division. I am advised that the chief bankruptcy judges oppose division as well.

Judge O'Scannlain: My name is Diarmuid F. O'Scannlain, judge of the U.S. Court of Appeals for the Ninth Circuit with chambers in Portland, Ore. Eight of my colleagues—Judges Sneed (California), Beezer (Washington), Hall (California), Trott (Idaho), Fernandez (California), T.G. Nelson (Idaho), Kleinfeld (Alaska) and Tallman (Washington)—publicly support a restructuring of the Ninth Circuit. I believe that an increasing number of district judges within the circuit also support a restructuring; a number of them have filed statements to that effect in the Report on the House Hearing.

I appear before you as a judge of one of the most scrutinized institutions in this country. In many contexts, that attention is negative, resulting in criticism and controversy. Some view these episodes as fortunate events, sparking renewed interest in how the Ninth Circuit conducts its business. But any restructuring proposal should be analyzed solely on grounds of effective judicial administration; grounds that remain unaffected by Supreme Court batting averages and public perception of any of our decisions. However one views our jurisprudence, I want to emphasize that my support of a fundamental restructuring of the Ninth Circuit has never been premised on the outcome of any given case.

When I was appointed in 1986, I opposed any alteration of the Ninth Circuit. I held to this view throughout the '80s, largely because of the widespread perception that dissatisfaction with some of our environmental law decisions animated the calls for reform. I changed my views in the early '90s while completing an LL.M in judicial process at the University of Virginia. The more I considered the issue from the judicial administration perspective, the more I rethought my concerns.

From a purely numerical perspective, the sheer enormousness of my court is undeniable, whether one measures it by number of judges, by caseload, by population or by geographic area. Our official allocation is 28 active judges—more than the total number of judges, active and senior combined, on any other circuit.

Even with the lumbering number of judges on our circuit, we can hardly keep up with the immense breadth and scope of our circuit's caseload. In the 2003 court year, 12,632 appeals were filed—over double the average of other circuits, and over 4,000 more cases than the next busiest court.

From the standpoint of a first-hand observer, I have concluded that our court's size negatively affects the ability of us judges to do our jobs. For example, I participated in eight week-long sittings last year on regular panels. The composition of those panels often changes during a given week. Consistency of law in the appellate context requires an environment in which a reasonably small body of judges has the opportunity to sit and to conference together frequently. Unlike a legislature, a court is expected to speak with one consistent, authoritative voice in declaring the law. But the Ninth Circuit's ungainly girth severely hinders us, creating the danger that our deliberations will resemble those of a legislative rather than a judicial body.

Without question, we are losing the ability to keep track of the legal field in general and our own precedents in particular. From a purely anecdotal perspective, it seems increasingly common for three-judge panels to make initial en banc requests because they have uncovered directly conflicting Ninth Circuit precedent on a dispositive issue.

Moreover, all other courts of appeals in this country convene en banc panels consisting of all active judges. Yet the Ninth Circuit uses limited en banc panels comprised of 11 of the 28 authorized judgeships. 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.

The Ninth Circuit's enormous size not only hinders judicial decisionmaking, it also creates problems for our litigants. In my court, the median time from when a party activates an appeal to when it receives resolution is 14 months—again, a third longer that the average for the rest of the courts of appeals. We are by far the worst circuit in this regard, with over 50 percent more stale cases than all the other circuits combined.

Also, because of the circuit's geographical reach, judges must travel on a regular basis from faraway places to attend court meeting and hearings. For example, in order to hear cases, my colleagues must fly many times a year from cities including Honolulu, Fairbanks, Alaska, and Billings, Mont., to distant cities including Seattle and Pasadena, Calif.

Several Supreme Court Justices have commented that the risk of intra-circuit conflicts is heightened in a court that publishes as many opinions as the Ninth. Circuit courts with too many judges lack the ability to render clear, timely and uniform decisions, and as consistency of law falters, predictability erodes as well.

What experts tell us—and what my long experience makes clear to me—is that the only real resolution to these problems is to have smaller decision-making units. The only viable solution, indeed the only responsible solution, is to restructure, and to carve out a new Twelfth, or even new Twelfth and Thirteenth Circuits.

I concede that there are judges on the Ninth Circuit Court of Appeals who believe the disadvantages of splitting the circuit outweigh the advantages. But as a member of that court, I must take issue with the innuendo that they represent an overwhelming majority. Some judges are neither for nor against restructuring; they decline to express any view, feeling the matter is entirely a legislative issue.

Our circuit judges are not the only ones who may support a restructuring. Each of the five Supreme Court Justices who commented on the Ninth Circuit in letters to the White Commission "were of the opinion that it is time for a change."

There is nothing unusual, unprecedented or unconstitutional about the restructuring of judicial circuits. Federal appellate courts have long evolved in response to the public interest as well as natural population and docket changes. As geographic or legal areas grow ever larger, they divide into smaller, more manageable judicial units. No circuit, not even mine, should resist the inevitable. Only the barest nostalgia suggests that the Ninth Circuit should keep essentially the same boundaries for over a century.

Unfortunately, the Ninth Circuit's problems will not go away; rather, they will only get worse. This issue has already spawned, both within and outside the court, too much debate, discussion, reporting and testifying, and for far too long. We judges need to get back to judging. I ask that you mandate some kind of restructuring now. One way or another, the issue must be put to rest so that we can concentrate on our sworn duties and end the distractions caused by this never-ending controversy.

Journal Date: 
Saturday, May 1, 2004
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