PREPARED STATEMENT OF
IDAHO ATTORNEY GENERAL ALAN G. LANCE
TO THE
COMMISSION ON STRUCTURAL ALTERNATIVES
FOR THE FEDERAL COURTS OF APPEALS
SEATTLE, WASHINGTON
MAY 27, 1998

Mr. Justice White and distinguished members of the Commission, for the record my name is Alan G. Lance, Attorney General of the State of Idaho. I want to express my appreciation for the opportunity to speak with you today. My remarks are presented on behalf of the people of the State of Idaho.

Idaho is encouraged by the existence of this Commission. We are hopeful that your recommendations this December will lead to resolution of long-standing difficulties in our federal court system. To that end, I speak in support of dividing the Ninth Circuit and creating a new Twelfth Circuit Court of Appeals.

In 1990, Idaho celebrated its centennial as a state. In conjunction therewith, the Ninth Circuit sent a special panel to hear an appeal in Idaho. We appreciated the court’s coming to Idaho, but we were also reminded of our deeply held belief that government is best that is closest to the people. We believe this to be as true for the judiciary as any other branch of government. Regardless of the quality of our circuit judges, Idahoans perceive that our cases are being decided by judges who have little or no connection with our state, and who know little about our people, our economy, our social concerns or our culture. This, in conjunction with other practical administrative problems resulting from the size of the Circuit, has led Idaho to support a split of the Ninth Circuit.

As you well know, the Ninth Circuit is the largest Circuit in the nation geographically, as well as the largest in terms of population and corresponding caseload. In my opinion, this has been a major detriment. It is no secret that the Ninth Circuit has the longest time interval of any circuit between the filing of the notice of appeal and the final disposition of a case, the biggest backlog in the nation and an exceptionally high reversal rate. It is clear that our circuit judges must labor under very difficult circumstances. In fact, Ninth Circuit Court of Appeals Judge Dorothy Nelson has commented that when she was appointed to the court, she expected more collegiality. Instead, she found the judges have little time to reflect on or discuss cases. She has commented that judges spend only 11 minutes on average discussing a case and, due to travel and time constraints, usually have to "hammer out any differences by memoranda and telephone calls."

While Judge Nelson’s comments point out how the sheer size of the Circuit can negatively impact the ability of the judges to discuss cases together and reach the best resolution for the litigants, another problem created by the Circuit’s size is what has been labeled intra-circuit inconsistency. The Ninth Circuit has a reputation for conflicting case law on the same issue within the Circuit. The practical result is that lawyers are unable to advise their clients on legal issues with any real confidence. I am not speaking here theoretically. My office has had cases where we have not known how to advise our clients because the precedent from the Ninth Circuit went both ways on the same issue. Senior Judge Eugene Wright, who admittedly favors a split, has commented extensively on this problem. According to Judge Wright, because the Ninth Circuit is so large and produces so many opinions, the judges "are forced to keep up on more ninth circuit law than they can possibly assimilate." Judge Wright has recalled going to his office and finding 61 opinions issued in just one week. He has said that the judges "don’t know from one week to another what opinions have just been filed by other panels." In smaller circuits, such as the Third Circuit, the opinions are circulated to all judges on the court before filing, allowing the judges to suggest changes. This leads to more consistency in the law and fewer appeals because there is less uncertainty about the law of the circuit. Judges and lawyers in the Ninth Circuit simply cannot keep up with the many differing opinions from the diverse panels.

Smaller circuits appear to have more safety valves. For example, in those circuits, like the Third Circuit, where opinions are circulated to all judges prior to filing, errors in judicial analysis can be caught. The inconsistencies with which Idaho must deal are not only intra-circuit inconsistencies, but inconsistencies between the Ninth Circuit and the Supreme Court. These inconsistencies cost the state money. When the Ninth Circuit gives an overly broad reading of prisoner rights regarding law libraries, it is the state that has to spend hundreds of thousands of dollars to meet a judicial mandate that it finds out, years later from the Supreme Court, was not constitutionally required. The states are left in a quandary: Do they follow Ninth Circuit law or Supreme Court law? And, what is the chance the Supreme Court will grant certiorari? A smaller circuit would allow for more collegiality, more discussion and, ideally, fewer costly errors.

Another problem resulting from the size of the circuit is its inability to hear a case en banc. An en banc hearing is understood to mean that the full membership of the court will participate in the decision. Such a decision leaves no room for argument that the decision is final and controlling in the circuit. Unfortunately, this is not true in the Ninth Circuit where an en banc hearing means that less than half (usually 11) of the court’s judges will participate in the decision. Thus, a major purpose of having en banc hearings is defeated.

Idaho has also experienced problems with delays. The Ninth Circuit has the longest time period of any circuit between the filing of a notice of appeal and final disposition of a case. My office recently represented Idaho in a case involving valuable natural resources that was delayed for years in the Ninth Circuit. A tribe had made claims to Lake Coeur d’Alene in northern Idaho. The lake, if you are not familiar with it, is the cornerstone of the region’s tourism industry and a cultural symbol. After the case was appealed to the Ninth Circuit and the briefs submitted we waited a year for argument to be scheduled. Following the argument, we waited another year for an opinion, which was later reversed by the United States Supreme Court. I understand the burdens under which the Ninth Circuit operates. However, the people of Idaho deserve to have their cases resolved in a more timely manner with a lower risk of an incorrect result.

There are also problems on the criminal side of the docket. I do not want to belabor the death penalty issue, but I am certain that this Commission has already heard plenty about high profile capital cases like the last minute appeals of Thomas Thompson and Robert Alton. I do want to say, however, that Idaho shares the frustration of other western states regarding death penalty issues. The states have a valid interest in the finality and enforcement of their judgments. The United States Supreme Court has stated that finality is essential to both the retributive and deterrent functions of criminal law. Yet, like other western states, Idaho has been frustrated with capital cases in the Ninth Circuit. There are some judges on the court who will seemingly use any means to delay an execution regardless of precedent from the United States Supreme Court and the interests of the state. For example, in Paradis v. Arave, 130 F.3d 385 (1997), the Ninth Circuit Court of Appeals appeared to engage in its own factual findings to arrive at a different result from the district court in a capital case. That decision was not appealed by Idaho because the defendant’s sentence had been commuted by the state’s executive branch. Nevertheless, this type of overreaching is frustrating for the state -- delays alone erode public confidence in our system of justice.

I realize that it has been suggested that many of the delays in the Ninth Circuit could be eliminated if the vacancies on the court were filled. In my view, filling those vacancies might help improve the statistics, but will do little more than result in an even more cumbersome Circuit with increased inconsistencies amongst the panels and more management problems.

It is time for the Ninth Circuit to be split. The Fifth Circuit was split several years ago with tremendous success. Last year the median time interval between the filing of a notice of appeal and the final disposition of a case was 14.4 months for the Ninth Circuit. For the Fifth Circuit, it was 9.9 months. This is an almost fifty-percent difference. Interestingly, despite the Fifth Circuit’s split, the number of appeals filed in that Circuit continues to be high. This year the Fifth Circuit will likely have about 8000 appeals, whereas the Ninth Circuit will likely have about 8,800. And, of course, the Fifth Circuit has only 16 judges. Nevertheless, they have a smaller backlog of cases and a substantially lower reversal rate than the Ninth Circuit. Something is simply not working when a federal circuit has the longest delays, the highest backlog and highest reversal rate in the country.

Finally, I want to discuss the perception that the Ninth Circuit Court of Appeals is simply out of touch with the smaller and more rural states that fall within its jurisdiction. As this Commission knows, the Ninth Circuit covers one-fifth of the nation’s population, with its fastest increase in cases coming from central California. It includes nine states and the Pacific territories as well. California, alone, if it stood as a nation, would be the 7^th largest country in the world. It overwhelms the Ninth Circuit with its cases, its problems and its concerns. States like Idaho are left disconnected from the federal judiciary that establishes the federal case law under which Idahoans are bound and must live. When federal issues come up it is critical that Idahoans be able to plead their cases before judges who understand Idaho and who have the time to render a fair and considered opinion in a timely fashion. Contrary to some assertions, this plea for a regional connection is not a bid at forum shopping. Why do we have eleven circuits plus the D.C. Circuit instead of just one? Because it is a positive value to have courts as close as possible to the people, without losing efficiency.

The Ninth Circuit is not close to the people of Idaho. The federal judiciary, to the extent possible, should have a strong connection to the communities it governs, and this requires more than an appearance in Idaho for its centennial celebration or some other infrequent celebration of note. The Idaho Supreme Court travels throughout the state, ensuring it has real contact with the people and communities its decisions affect. I realize it is not realistic to expect the federal appellate judiciary to be this closely connected to the state. But, likewise, the deep alienation Idahoans feel regarding the federal appellate courts is not necessary. Idaho merits more than a federal appellate court that rarely sets foot in our state and appears to be unacquainted with our culture and indifferent to our problems. I believe it is possible to bring our circuit closer to the people. I speak for Idaho when I ask that the Ninth Circuit be split and a less remote and more manageable Twelfth Circuit be created.

In closing, let me say that I realize the difficult task that this Commission faces in reaching its recommendation. I thank you for giving the State of Idaho, and me, this opportunity to speak with you, and I respectfully urge you to recommend splitting the Ninth Circuit Court of Appeals and creating a new federal circuit.