STATEMENT FOR PRESENTATION IN SEATTLE ON MAY 27, 1998

Justice White and Members of the Commission:

My name is James Redden and I am a Senior District Judge from the District of Oregon. I am accompanied by Senior Judge Panner and Chief Judge Michael Hogan.

We speak for the majority of our District and Magistrate Judges. (Of our nine active and senior District Judges and six Magistrate Judges, one Magistrate Judge opposes. Two of our District Judges have been with us but a matter of weeks and have expressed no opinion and Judge Hogan disfavors the "California Split," and does not believe that any split will be a long range solution.)

We favor a division of the Ninth Circuit and appreciate the opportunity to briefly explain our reasons as well as our preference for the manner in which the Circuit is divided. I wish to point out that the District Judges of Oregon have long favored a division of the Circuit and, in fact, were dubbed the "Circuit-Breakers" several years ago. Our reason was and is simple: we think the Circuit is too large and are convinced that two smaller courts will better serve the public. We do not desire a split for any "liberal vs. conservative" theory as advanced by the political branches. We regret that pointless debate. Neither do we seek our own little Northwest corner of the world on a theory that we can better "administer" to the needs of the Northwest. We are not administrators.

We have always had and do have the greatest respect for those who have led the Ninth Circuit: Judges Browning, Goodwin, Wallace, and now Hug have performed and are doing an admirable job, given the task at hand. The fact is that as a circuit grows, so does its inefficiency. J Harvie Wilkinson III, Chief Judge of the Fourth Circuit, pointed out in an article written for the Wall Street Journal that large circuits present more problems than small circuits, and of course they do. There are more internal conflicts in circuit law which must be resolved by more en banc hearings of the full court. He points out that it takes more time to get a decision out when an en banc hearing is held.

He also said:

With a smaller court of appeals, the possible panel combinations of three judges are less numerous and the law is more coherent. Legal principles are discernible and judicial outcomes are predictable. As a court grows, so do the possible panel combinations, and the law becomes fuzzier and less distinct. Litigation takes on the properties of a game of chance and litigants are encouraged to come to court for the roll of the dice. When legal outcomes are uncertain, cases are brought for their settlement value and parties lack clear guideposts for their conduct out of court.

It is worth noting that in our circuit "en banc" does not mean the entire court convenes -- there are too many judges to enable that. It is sort of a semi-en banc of 11 members. The decision, then, is not the unanimous decision of an entire court.

The real problem with a court as large as the Ninth Circuit is, of course, that there are too many panels and too many possible combinations of judges on any given panel.

Robert M. Parker has told you that although he needs 15 judges, an increase of three, he also realizes that "the task of maintaining coherence and uniformity is difficult when a court of appeals is comprised of more than 12 active judges."

Even Judge Cliff Wallace acknowledges that the "number of panel permutations expands geometrically as the number of judges increases." Although he is firmly convinced that such a court remains workable, others disagree. Judge Joseph Hatchett recalls the old Fifth Circuit of 26 as a "horror," and pointed out to you that "staying abreast of the court's opinions was practically a full-time job in itself."

I don't know the number of possible panel combinations in the Ninth Circuit as it is today, or as it will be when it is fully staffed with the judges it now requests. Judge Gerald B. Tjoflat, of the Eleventh Circuit, said that the old Fifth, with 26 regulars and seniors in the draw, had 3,500 different panel combinations. He observed the obvious inevitability of one panel overruling another and "rendering the law uncertain." Such a court cannot keep up with their own opinions, and neither can the district judges.

It is that uncertainty of the law which encourages even more appeals when lawyers and their clients decide they might as well appeal on the theory that they may draw a panel that "fits." Some describe it as a "crap shoot," and others as a 50-50 "chance." It is at least a situation which presents problems. One of our magistrate judges who recently joined us had left a busy trial practice. He says that lawyers must advise clients considering an appeal or settling one that it is futile to predict the outcome because of the number of panels.

More judges will be added to the Circuit and an eventual split is inevitable. Recent legislative actions and statements make it apparent that they will "engineer" the split with or without our help. We are fortunate that they have given us an opportunity to propose what we believe is the most logical method of dividing the Circuit. We agree with Judge O'Scannlain that we should follow the Hruska Panel recommendation, once put in bill form by then-Congressman Kopetski of Oregon (HR 3654, 1993, attached). I need not repeat the analysis Judge O'Scannlain made in his statement to the Committee, when he analyzed each of the current eight proposals.

The Hruska Commission plan does divide a state within a circuit, something that has never been done before. The Hruska Commission and Judge O'Scannlain spoke to that issue. The population of the state of California is such that alone it is too large for a circuit.

The law of the present Ninth Circuit will be the "common law" foundation for the Ninth and new Twelfth Circuit. HR 3654, Section 3, specifically dealt with the resolution of inter-circuit conflict by creation of an "Inter-Circuit California En Banc Court," a much simpler structure than the title indicates. Judges with duty stations within the state of California would convene to resolve conflicts that might result in the imposition of inconsistent or otherwise nonuniform federal law within the state of California.

If you are convinced that it is inappropriate to divide California, other plans analyzed by Judge O'Scannlain will work and are improvements.

We realize that a division of the Ninth Circuit will not solve the problems facing our court nationally or even in the Circuit. Even so, it will improve matters considerably for many years. Perhaps, by then, Congress will bite the bullet on long range planning and consider such options as certiorari for the circuits and elimination of diversity jurisdiction. Perhaps even assisting state courts do what they do best. I fear that will not happen in our career span.

It is, therefore, our feeling that the legislative branch will divide the Ninth, probably for the wrong reasons and probably the wrong way. I hope that this Commission makes a positive contribution and suggests the appropriate division of the Circuit, even if you do not unanimously endorse the concept. Thank you.

9thcir

5/19/98