Commission on Structural Alternatives for the
Federal Courts of Appeals

Public Hearing

Friday, May 29, 1998

I want to thank the Commission for allowing me to testify here today. I am the Circuit Executive for the Ninth Circuit, a position I have held since 1988. Between 1984 and 1988 I was the Deputy Circuit Executive for this circuit. For a decade before that, I was involved with judicial administration at the state and county level in Washington State.

The position of Circuit Executive in the Ninth Circuit is unique in that it focuses on the operations of all of the courts and court units within the circuit. While many of my colleagues across the country have extensive operational responsibilities for the Court of Appeals, I do not. I work with the district and bankruptcy courts as much as I do with the Court of Appeals. My staff is as likely to be found providing automation assistance or space and facilities support or personnel guidance to the probation office in Billings as they are to be found working with the Court of Appeals' staff.

This unique organizational arrangement allows me to meet and work with judges of all levels and staff in all corners of this circuit. It also puts me in a position to answer one of your questions unequivocally. You asked us to speak to the question of what works well and I can. The structure that we have developed to support all of the court units within the circuit is extremely effective and should not be dismantled.

The Ninth Circuit is much more than the Court of Appeals. In addition to the 21 active judges (28 judgeships, but seven vacancies) and 17 senior circuit judges, it is 99 active district judges and 52 senior district judges. It is 70 bankruptcy judges and 75 magistrate judges. There are almost 5,000 employees in the circuit, district and bankruptcy courts, in probation and pretrial service offices and in defender organizations in the Ninth Circuit. These men and women are all part of the Ninth Circuit just as are the judges of the Court of Appeals. I can say with great assurance that they do not want to see the organization that supports them taken apart.

My position affords me one other unique vantage point that I should mention. I have regular and routine dealings with almost all of the judges in this circuit. While support for maintaining the existing geographical boundaries of the Ninth Circuit may not be unanimous, it is very strong. The vast majority of the district, bankruptcy and magistrate judges of this circuit do not want to see the Ninth Circuit divided.

Under the guidance of the Judicial Council of the Ninth Circuit and the direction of Chief Judge Hug, the Office of the Circuit Executive provides support services in the area of human resources, automation, legal affairs, space and facilities and education and training. I am justifiably proud of the accomplishments of this circuit. This circuit has developed and maintains a reputation for innovation and excellence.

I won't take your time to go into the roster of innovations and accomplishments that have arisen from this circuit. Instead, I will focus my remarks on the structure that supports the judges of the Ninth Circuit and that made those accomplishments possible. I feel that we have developed an infrastructure in this circuit that is fully capable of supporting an institution the size of the Ninth Circuit well into the next century.

The Ninth Circuit is large. There are 341 federal judges handling 369,360 cases in these nine western states (AO data for the 12 months ending Sept. 30, 1997). That's a lot of judges and a lot of cases, but there won't be any fewer judges or any fewer cases if this circuit is divided. There will still be the same number of cases handled by the same number of judges. There will, however, be two smaller disconnected administrative structures supporting their efforts. Not only will these duplicative structures be substantially more expensive, they will be significantly less effective than the structure that we already have in place. The administrative apparatus that supports this circuit functions extremely well and is designed to support a large and diverse circuit.

I would like to direct my remarks to the Ninth Circuit beyond the Court of Appeals. I will address the institutions that support the entire Ninth Circuit, the fifteen districts and all of their support functions as well as the Court of Appeals.

The Ninth Circuit Judicial Council is the chief policy-making body for all of the federal courts in the Ninth Circuit. In 1980, it became the first circuit to reorganize itself for more representative and responsive decision-making. The council reduced its size to nine members: the chief judge, four circuit judges and four district judges. The Ninth Circuit Judicial Council is the only council which also invites a senior circuit judge, a senior district judge, the chair of the Conference of Chief Bankruptcy Judges, and the chair of the Magistrate Judges Executive Board to sit as non-voting observers at its meetings. With balanced representation to ensure a diversity of experience and viewpoints, the Ninth Circuit Judicial Council is structured to maximize participatory decision-making in the exercise of its statutory duties and responsibilities.

Membership on the council is designed to provide opportunities for participation in the mechanisms of governance by utilizing the full diversity of the circuit. Judicial Council members include the Chief Judge and the judge next in line to be chief plus one judge from each of the three administrative units in the Court of Appeals. District judges who are council members include the representative to the United States Judicial Conference, the President of the District Judges Association and two chief judges whose selection is based on seniority. This structure insures that the members of the judicial council are not only leaders in their individual courts, but are representative of the diverse regions that comprise the Ninth Circuit.

It has been said that the Ninth Circuit is dominated by California. Just the opposite is true in the Judicial Council. A judge from Montana or Idaho has the exact same opportunity to serve on the Judicial Council as does a judge from California.

This diversity has served the council well. For example, when the council was considering the question of Article III status for the judgeship on the Northern Mariana Islands, the deliberations benefitted greatly from the experience and perspective brought to the table from some of the judges of the smaller more rural districts. In the same vein, the expertise of judges from urban districts is equally as valuable to the council. Division of the circuit would result in a far less diverse judicial council and that would be bad for judicial administration.

Bankruptcy judges and magistrate judges have served as observers on the council since its reformation in 1980. Their inclusion in the deliberations is invaluable when the council turns to matters within their jurisdiction. Equally important from my perspective, however, is their communication with their colleagues. They are in a position to keep their colleagues fully informed on the activities of the council. This open communication is good for the system as a whole.

I am absolutely confident that the bankruptcy judges and magistrate judges will tell you that they are treated very well in this circuit and that they have confidence in the institutions that oversee their activities. We have worked hard to develop their confidence and to include them in the judicial family that is the Ninth Circuit. Division of the circuit could result in the end of participation by bankruptcy judges and magistrate judges in policy making if either of the new circuit councils chose to discontinue "observer status" positions on the council.

The council also has a senior circuit judge and a senior district judge as observers. Again, I am confident that the senior judges of this circuit feel that they have every opportunity to participate in the decisions that impact on them. We have done everything we could to ensure that senior judges feel that they are part of this institution. It would be a shame to risk the disenfranchisement of this exceptional judicial resource by a decision to divide the Ninth Circuit.

As the primary policy-making body of the circuit, the council stays abreast of the issues that concern the judges and support staff of this circuit through ongoing communications with several other essential Ninth Circuit institutions.

The 15 chief judges of the district courts in the Ninth Circuit meet semiannually as the Conference of Chief District Judges. Two of the members of this conference are also members of the judicial council and provide a conduit between the bodies. Chief Judge Hug tends to use the conference as a sounding board for issues that ultimately will come before the council for decision. The conference of chief judges provides an excellent forum for a full discussion of important issues. In the same way, the Conference of Chief District Judges commonly identifies and develops issues for submission to the council.

The Conference of Chief Judges meets twice a year. At each of the 1½-2 day sessions, the chief judges share developments in their districts, hear from members of the Administrative Office, and debate and discuss issues and problems related to district court management.

At one of its two annual meetings, the chief district judges meet separately with the district court clerks to discuss common interests. Similarly, the judges meet separately with those who chair the lawyer representative delegations to the annual judicial conference to discuss issues of concern to practitioners before the federal courts. Through these periodic formal and informal interactions, the circuit works to keep open lines of communication among all of the principal constituents in the court system.

Conference of Chief Bankruptcy Judges

The 13 chief judges of the bankruptcy courts in the Ninth Circuit meet semiannually as the Conference of Chief Bankruptcy Judges. These meetings parallel those of the chief district judges. They are used as part of a two-way vehicle for communication via the conference's chair who sits as an observer on the Judicial Council. At one of the two annual meetings, the chief bankruptcy judges meet with the bankruptcy court clerks to discuss matters of mutual concern.

The Conference of Chief Bankruptcy Judges is unique to the Ninth Circuit. In no other circuit do the bankruptcy judges and clerks meet to discuss common problems and develop common solutions. The result is that the bankruptcy courts of the Ninth Circuit are leaders in many fields of judicial administration. Ninth circuit bankruptcy clerks are pioneering many efforts in automation such as electronic filing and electronic imaging and many more. We have been able to develop a support structure in this circuit that fosters innovation and provides support to the clerks and judges of the bankruptcy courts.

The Ninth Circuit was the first circuit to create a Bankruptcy Appellate Panel to provide expertise in the review of bankruptcy cases and to reduce the caseload burden on the district courts and circuit court. The Conference of Chief Bankruptcy Judges has overseen the growth and development of this very-well-received institution since it was first started in 1979.

Bankruptcy filings, while generally and significantly increasing over the last decade, have tended to proliferate unequally in the various districts within the circuit. To remedy the problem of fewer cases per bankruptcy judge in one district and too many cases in another district, the circuit has called upon the assistance of recalled bankruptcy judges and has developed an innovative Bankruptcy Workload Equalization Project. The Conference of Chief Bankruptcy Judges was intimately involved in developing this program.

The workload equalization program permits the transfer of "blocks" of cases from districts with above-average caseloads to districts with below-average caseloads rather than assigning a judge to travel for extended periods to the impacted district. The current pattern is for judges from the northwestern states to provide assistance to some of the California districts. In previous years however, the exact opposite was true. The impacted districts were Alaska, Hawaii and Arizona and the judicial assistance was coming from the California judges. This program has been very successful in reducing backlogs with a minimum of administrative inconvenience or expense.

Ninth Circuit Judicial Conference

The Ninth Circuit Judicial Conference is a key element in the establishment of a distinct identity known as the Ninth Circuit. The circuit conference has also been pivotal in the effort to maintain collegiality and open lines of communication within the circuit. Not just a one-time event, the Judicial Conference is a year-long process that involves judicial officers, court personnel, and practicing lawyers in a continuing effort to improve judicial administration.

District Conferences

Lawyers who represent the practicing bar in the federal courts play an integral role in the operation of the circuit and in the conduct of the annual Judicial Conference. Some 130 practicing lawyers are selected through a conference-approved process on a district-by-district basis. Attorneys are chosen based upon their interest and experience in federal practice. These lawyers regularly meet among themselves and with the judges in their districts to discuss problems and opportunities for the enhancement of court operations.

In addition to quarterly meetings that take place in almost every district in the circuit, the lawyer representatives and judges hold a special meeting once a year in a half-day or day-and-a-half format known as a district conference. Resident circuit judges, district judges, bankruptcy judges, and magistrate judges, in addition to many of the federal practitioners in the district, are invited to these seminars, which often take place on weekends. These valuable sessions are jointly planned and include both substantive and social sessions for the judges and lawyers to meet and candidly discuss district and circuit issues. The Judicial Council's Executive Committee encouraged this addition to the year-long conference process and strongly supports these efforts to spread the benefits of the annual judicial conference to the local level.

Committees and Task Forces

The work of the Judicial Council is performed through an extensive committee structure. Council committees invite and encourage participation from a broad range of judges, clerks, lawyers, and academics with an interest in Ninth Circuit administrative governance. Appointments to most committees are made by the chief circuit judge after consultation and careful effort to assure wide diversity and inclusion of members from every district within the circuit.

Judicial Council committees are organized in different ways. Some­like the Executive Committee of the Conference of Chief Bankruptcy Judges and the Magistrate Judges Executive Board­serve as a direct liaison with the Judicial Council. Advisory committees are standing committees of the council that oversee continuing issues of circuit interest. Currently a dozen standing committees address the areas of alternative dispute resolution; judicial education; capital cases; bankruptcy judge appointments; federal public defender appointments; gender, race, religious and ethnic fairness; jury issues; Pacific Islands issues; space and security; and tribal court relations. Others­particularly task forces­address topical concerns and are set up for a specific purpose. Once they have addressed the issue and made a recommendation to the council, they are usually disbanded. Recent task forces have addressed: court reporter problems; internal financial controls; gender bias, racial, religious, and ethnic fairness; pro se litigants; and Criminal Justice Act voucher expense variations.

Summary

Thank you for the opportunity to speak before you today. I hope I was able to present at least a partial picture of the Ninth Circuit beyond the Court of Appeals. As you can probably tell, we are proud of the accomplishments of this circuit and the position of leadership we hold within the federal judiciary.

This circuit is large. There is no doubt about that. Yet, unless all of the projections for future growth in the judiciary are off base and off base by a very long way, almost all of the other circuits will be this size or larger in the not too distant future. We feel that we have demonstrated that a large circuit can function well. In order to meet the challenges of the years ahead, every circuit, regardless of size, will have to make a habit of innovation. We feel we have the structure in place that will allow us to meet those challenges.

The Ninth Circuit has a reputation for innovation. I direct your attention to the supplemental materials that we have presented for a more exhaustive review of the innovations of this circuit and a more complete overview of how we operate.

The Ninth Circuit is much more than the Court of Appeals. I hope I was able to show some of the structure that supports the efforts of all of the judicial officers' support staff that taken together comprise this circuit. The structure that underlies the Ninth Circuit functions very well. It should not be dismantled.

If possible, I would also like to provide a supplemental paper for the commission. This paper develops detailed figures for the cost of dividing the Ninth Circuit and establishing a new circuit headquarters. I think it is important information for the commission to consider. It would cost more than $42 million to start up a new circuit and an additional $4.2 million a year to operate it.

Thank you very much for allowing me to appear.