STATEMENT OF DON BIVENS
PRESIDENT-ELECT OF THE STATE BAR OF ARIZONA
SUBMITTED TO THE COMMISSION ON STRUCTURAL ALTERNATIVES
FOR THE FEDERAL COURTS OF APPEALS

May 26, 1998, Seattle, Washington

My name is Don Bivens. I am the President-Elect of the State Bar of Arizona, and I appear today as the authorized representative of the Board of Governors of the State Bar of Arizona. The Arizona Bar has 14,000 active attorneys.

I am a partner in the Phoenix firm of Meyer, Hendricks, Bivens & Moyes, P.A., where I specialize in complex litigation. My practice is evenly divided between the federal and state courts.

The State Bar Board of Governors unanimously believes that Arizona is well served by the Ninth Circuit Court of Appeals in its current configuration. The Arizona Bar sees no compelling reason to restructure the Ninth Circuit, and no proposal to divide the Ninth Circuit that would substantially improve the administration of justice. Thus, the Arizona Bar recommends against any division of the Ninth Circuit.

The Arizona Bar also recommends to the Commission the following approach to analyzing the various proposals that have been made to restructure the Ninth Circuit.

First, we trust that the Commission will discard all proposals or criticisms motivated by politics, whether from the left or the right. Partisan political motivations have no place in the fair and impartial administration of the independent judicial branch of our government.

Second, from any non-political list of concerns about the Ninth Circuit the Commission should consider which of those concerns will likely be solved simply by having the President and the Senate fill the gaping judicial vacancies that have been allowed to persist in the Ninth Circuit for several years. Last year more than one-third of the Ninth Circuit's judicial positions sat empty as 18 judges attempted to do the work of 28. Recent additions to the Court will raise the number of judges to 21, but certainly a full complement of the 28 judges authorized to work in the Ninth Circuit will necessarily improve the speed with which cases are processed.

The real backlog in the Ninth Circuit is the time it takes for non-priority civil appeals to get to argument, which currently takes 513-534 days. This delay is absolutely the result of a lack of resources, and is the real impact of having so many judicial vacancies for so long. Once cases are argued before the Ninth Circuit, the bulk of those cases are decided in 20-40 days.

Third, if any operational problems actually remain after filling the Ninth Circuit's substantial vacancies, then this Commission should look to the future of the entire federal appellate system before recommending any reconfiguration of the Ninth Circuit. Dividing the Ninth Circuit for any reason -- even a compelling reason -- has serious, long-term policy implications for the entire federal court system, and ought not be done lightly, and certainly not before the Commission studies all the technical and management innovations that will be needed to run the courts of the 21st century.

All of the nation's Circuit Courts will likely be bigger in the future, as the whole county becomes bigger. A policy that deals with growth simply by dividing growing Circuits into smaller subdivisions every time a court approaches 25-30 judges will create more Circuit Courts, and more potential conflicts among those Circuit Courts to be resolved by a Supreme Court whose resources are already stretched thin. A more reasonable approach would be to help our growing Circuit Courts operate more efficiently, maximizing the use of technology and innovative management.

Dividing a Circuit, standing alone, does not solve workload problems. Based on 1997 statistics the Ninth Circuit has the third highest number of filings per judge (481) in the nation. Interestingly, the Eleventh Circuit, created as a result of the split of the old Fifth Circuit, is number one with 610 filings per judge. I understand that the Chief Judge of the Eleventh Circuit has already appeared before this Commission and recommended that they need at least three additional judgeships to keep up with their work.

The same point can be made from another perspective. The Ninth Circuit is number one in total number of 1997 filings (8,651), but number two is the "new" Fifth Circuit (7,734), and number three is the "new" Eleventh Circuit (6,102). Here again, splitting the "old" Fifth Circuit did not alleviate the workload of the judges there. Workload is driven substantially by population growth.

All proposals to divide the Ninth Circuit have the following in common: (a) They will put the two new Circuits seriously out of balance in terms of caseload (filings per judge); and (b) to achieve some kind of balance and enable the judges to keep up with their work, substantial new judgeships will need to be created. Even a split as benign as a basic North-South split would require 10 new judgeships for the "new" Ninth Circuit -- and this is without the additional judgeships the Judicial Conference of the U.S. says the existing Ninth Circuit now needs). New circuit judgeships cost about $1 million each to create, staff, house and set up.

Further, any division of the Ninth Circuit will require new court and administrative facilities, which will essentially duplicate facilities that already exist. The Arizona Bar questions the wisdom of spending additional tax monies to create court facilities for a new Circuit.

Finally, if this Commission, after considering all the issues, recommends a division of the Ninth Circuit, the State Bar of Arizona favors a reconfiguration that would allow Arizona to remain in the same Circuit with an undivided California. One need look no further than the commercial airline schedules to determine that Arizona enjoys more economic and personal contacts with California than with any other state in the Ninth Circuit. Our common borders with Mexico, and with the Colorado River provide common interests. The demographics of our growing populations share common patterns. Historically, Arizona has looked to California state law whenever the laws of Arizona provide no precedent. Certainly, the natural resources of the desert Southwest share more in common with California than with the timber-rich, water-rich states of the Pacific Northwest. If the Ninth Circuit is to be divided, Arizona will be best served by retaining its historic relationship with neighboring California.

On behalf of the lawyers in Arizona, I thank you for you attention and for your investment of time and energy to studying these important issues.

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