STATEMENT TO THE COMMISSION ON STRUCTURAL
ALTERNATIVES FOR THE FEDERAL COURTS OF APPEALS

Otto R. Skopil, Jr.
Senior United States Circuit Judge
827 U.S. Courthouse
Portland, Oregon 97204

INTRODUCTION

I am Otto Skopil, a senior judge on the Ninth Circuit Court of Appeals, with chambers in Portland, Oregon. I thank the commission for allowing me to testify. My comments represent my personal beliefs; I am not here today on behalf of my court or my colleagues.

The charge to this commission is very important to the future of the federal judiciary, and of even greater importance to those we serve -- the public. I am pleased that Congress has recognized the need to study structural alternatives for the federal courts of appeal. It was, of course, a subject considered and discussed at great lengths by the Judicial Conference Committee on Long Range Planning, of which I was a member. I hope to share with you our analysis of the issues involved and the conclusions that we reached. From my own experiences, I can certainly appreciate the enormity of the commission's task. I am sure you already recognize that the mental attitude of the bench and bar is adverse to change, but whether we like it or not, we must accept the reality that changes will occur. The commission should keep in mind not the desires and preferences of individuals, but the mission and goals of the entire judiciary. We need to strive to provide on a national basis, the highest quality of justice, in the shortest period of time, and at the least expense to litigants and taxpayers.

PERSONAL BACKGROUND

I offer my personal background only to illustrate my experiences, and to allow the commission to evaluate my remarks. I have been a member of the legal profession for 52 years, the first 26 years in the private practice as a trial lawyer, appearing in every Oregon court from the justice of the peace to the state Supreme court, and in the federal system, from the trial court through the Supreme Court of the United States. In 1972, I was appointed by President Nixon to serve on the District Court for the District of Oregon. I was chief judge of that court for three years until my appointment in 1979 by President Carter to the Ninth Circuit. In addition to my judicial duties, I served on the Federal Judicial Center Board, and for eleven years, on the Judicial Conference Committee on Magistrates, seven years as its chair. Chief Justice Rehnquist appointed me in 1991 to serve as chair of the newly created U.S. Judicial Conference Committee of Long Range Planning, serving with Judges Sarah Evans Barker, Edward Becker, Wilfred Feinberg, Elmo Hunter, James Lawrence King, Virginia Morgan, Thomas Small, and Harlington Wood. With the aid of our consulting staff, the AO's long range planning office, the FJC, and numerous other contributors, the committee drafted and circulated the first long range plan for the federal courts. That plan contained 98 unanimous recommendations on various subjects, 93 of which were eventually adopted as Judicial Conference policy, including several regarding appellate jurisdiction, case management, structure, and size. It is those recommendations and the debate on the issues that formulated the committee's conclusions that I wish to explain to the commission today.

The Long Range Planning Committee quickly recognized that the task of evaluating the present structure of the federal appellate process cannot be performed in isolation from the many other issues facing the courts today. There has been an enormous increase in the number of appeals filed in federal court. You have repeatedly heard and have reviewed the statistics. You know that Congress, through the process we have termed "federalization," has substantially increased our criminal jurisdiction. Moreover, in the last twenty years, Congress has enacted over 200 statutes that have had a direct and lasting impact on our civil case load. While it is virtually impossible to predict future congressional action, we do know the trend ­ the case load will continue to rise, and at a rate disproportionate to the number of judges available to do the work.

The Long Range Planning Committee sought an integrated review of circuit size and structure. You should also do so, not by considering where lines might be drawn, but by considering the underlying causes of the problem that brought us here today. Last year, over 51,000 appeals were filed in federal court. Whether we have many circuit courts of appeals, a few, or just one, and regardless of how big or small these courts are, the bottom line is that there are simply too many appeals for the number of circuit judges.

I know that you will carefully consider the Judicial Conference's Long Range Plan, particularly those policies adopted by the Conference pertaining to circuit size and structure. I wish only to summarize. After considerable internal debate, research, consultation with many judges and staff, and public hearings, the Long Range Planning Committee reached several important conclusions. Primarily, we endorsed the principals of appellate review, recognizing the importance of both "error correction" and "law declaration." We endorsed the basic premises that litigants should have at least one meaningful opportunity for appellate review, that review should be made by three-judge panels, that there should be a consistent application of federal law, and that review should be made by regional judges. (Long Range Plan for the Federal Courts 42 (1995).) Consistent with those premises, we recommended that the federal appellate function be performed in "a generalist court of appeals established in each regional judicial circuit." (Id. at 43.) We specifically declined to "adopt proposals to create new specialized or subject-matter courts in the judicial branch." (Id.)

On the issues of restructuring and size, we affirmed that "[e]ach court of appeals should comprise a number of judges sufficient to maintain access and excellence of federal appellate justice." (Id. at 44.) We did not, however, endorse any immediate circuit restructuring, but instead recommended that any such restructuring "should occur only if compelling empirical evidence demonstrates adjudicative or administrative dysfunction in a court so that it cannot continue to deliver quality justice and coherent, consistent circuit law." (Id.) We found no such evidence, and it is my judgment that you will reach the same conclusion.

I know that the commission is charged with particular reference to study the structure and size of the Ninth Circuit. Accordingly, I direct my comments to that issue, by examining the arguments set forth by the proponents of splitting the court.

First, senators from the Pacific Northwest states who sponsored the legislation to split the circuit have publicly asserted that judges from California dominate the court, and these judges have failed in their interpretations of the law to recognize conditions peculiar to the Pacific Northwest. As I understand, the senators feel that the law, as applied to this region, should only be interpreted by judges appointed from here. I believe this to be a misconceived reason. The laws created by Congress are national and should be interpreted and applied equally and uniformly throughout the nation. If the senators believe there are particular local issues that should be resolved on a local basis, then they should act to remove those issue from the federal domain. That is a legislative solution, however, not one that can be achieved by reorganizing the courts.

Second, those in favor of a split argue there is a lack of uniformity in the law of the circuit, attributable to the large number of judges on the court. If this really is a problem, it applies to a very small percentage of the cases. Moreover, the present system provides safeguards: (1) cases with related issues are identified and calendared together; (2) decisions are monitored by staff for consistency and panels are notified immediately of potential conflicts; and (3) if a conflict does occur, the court has established a workable, limited en banc procedure to review and resolve the conflict.

Third, critics of the present Ninth Circuit complain that its large size contributes to the length of time from filing to final disposition. This is an unwarranted criticism. The processing time for appeals in the Ninth Circuit is not significantly longer than the national median. Further, in the crucial time period from argument to filing of a final disposition, the Ninth Circuit has been a consistent leader. What delays do occur in the circuit are primarily attributable to the unfilled judicial vacancies. The court suffered for a long time with ten vacancies; presently seven remain unfilled. These vacancies represents nearly one-third of the authorized active judges for the circuit. Had they been filled, 100 additional panels would have been available and some 600 additional cases could have been processed annually.

Fourth, the proponents of a split point to a lack of a collegial environment. But, the size of a court does not necessarily dictate collegiality. Moreover, it is difficult for me to accept the opinions of individuals who have never served in or even been exposed to the Ninth Circuit process. It seems more logical to rely on the opinions of the judges of the court itself, visiting circuit judges, and the lawyers appearing before it. I have served on both large and small courts. From my own experiences and observations, even three-judge courts can lack collegiality and suffer from constant bickering and conflict. I can personally say that in the Ninth Circuit, although there may be basic philosophical differences that influence judges' interpretations of the law, the judges know and respect each other and are sensitive to different viewpoints. Such open communication about different views in a congenial setting is not only a broadening and informative process, but generally provides for better decisions.

I am convinced that the benefits of retaining the present Ninth Circuit structure far outweigh any arguments in favor of splitting. Please allow me to list the arguments in favor of retaining the current structure. First, splitting the Ninth and creating two circuits will not solve the problem of expanding caseloads. Dividing the Fifth Circuit has not provided any long term benefits in handling the caseload or in expediting case processing. Second, a division would provide potential inconsistencies in admiralty, commercial trade, and utility law so vital to the pacific seaboard. Third, splitting the circuit to provide equality in the judges' workload would require a division of the State of California. This is in direct conflict with the traditional federalizing function of multi-state circuits. Fourth, the economic effect on the taxpayer in creating two circuits is unwarranted. Estimates of $60 million for initial construction of a courthouse and $2.3 million annual costs to provide necessary administrative functions are unreasonable and unnecessary expenditures.

Finally, the Ninth Circuit, by virtue of its size and resources, is a national leader in experimenting with innovative ideas for handling and processing appeals. The circuit serves as a laboratory for such ideas and thereby can provide assistance and guidance to other circuits as their sizes increase. For example, the Ninth Circuit has created workable administrative units under the supervision of local resident judges; developed written and oral screening processes to expedite the decision-making process; created a circuit commissioner position designated to handle routine nondispositive motions and to provide uniformity in areas such as attorney fees; established bankruptcy appellate panels (BAP) empowered with initial review of bankruptcy cases; and pioneered computer and electronic mail that resulted in substantial time reductions in communication. In addition, the court prepares and publishes annual outlines on the law, including a treatise on standards of review, which are widely used by the bar and the court. The Ninth Circuit is able to do these things because its size allows versatility and resources that smaller courts simply do not possess. The court should be allowed to continue to serve as the model for the large, diverse circuit. In fact, that model has been so successful, the commission should seriously consider recommending that smaller circuits be combined, rather than recommending that the Ninth be split.

THE COMMISSION'S TASK

The commission has an opportunity to recommend the adoption of significant and meaningful changes to the federal appellate structure in this nation. There is no question that substantial events have occurred over the last 25 years, directly affecting the judicial process and justifying the study and reevaluation of the present system. As I indicated before, change is inevitable. I charge, however, that drawing new lines on the map, whether for the Ninth Circuit or for all circuits, is not the answer that will enable the judiciary to meet its duties and responsibilities during the next 25 years. I offer, for your consideration, my thoughts about what the commission ought to consider in fulfilling its statutory mandate of recommending changes that "may be appropriate for the expeditious and effective disposition of the caseload of the Federal Court of Appeal, consistent with fundamental concepts of fairness and due process."

There is little doubt in my mind that we must focus on the ever-increasing caseload in the appellate courts. Although the demographics of the times, increased population, and a more complex, litigious society are contributing factors, the dominant cause of the workload crisis is legislation that has increased the jurisdiction of the federal courts by providing additional civil remedies and federal crimes. To determine if the present court structure and process is able to fulfill its mandated responsibility, it is imperative that consideration be directed to the present and future workload. Structure cannot, and should not, be divorced from workload.

As you are acutely aware, the federal judiciary is required to do what Congress assigns it to do. The workload is created and controlled by Congress. Not only has Congress expanded jurisdiction through new legislation, but it has added other major responsibilities such as the public defenders program, probation, and pretrial services. If we accept the increased workload as the major cause of the need to consider structural alternatives for the appellate courts, it appears that we should first consider whether we can reduce the number of cases coming into the appellate process. Because it appears unlikely that Congress will repeal any substantive legislation or eliminate any existing federal rights, remedies, or crimes, we must be creative in our thinking. For example, Congress might be persuaded to allow discretionary appellate review, if not for all cases, then at least for a limited class of appeals that raise only factual error. If Congress is unwilling to provide any form of discretionary review for the appellate courts, we should look to expanding the role of the appellate commissioner to handle nondispositive motions, award attorney fees, and issue show cause orders. Finally, we should look to the possibility of expanding the appellate capacity by allowing some cases to be reviewed by two-judge panels or even allowing for single-judge review in certain instances.

Such proposals are not new to this debate. The Long Range Plan for the Federal Courts espouses these and other ideas. (Long Range Plan at 131.) In fact, the Long Range Planning Committee, in confronting its "Alternative Future" of over 335,000 appeals by the year 2020, advocates consideration of even more aggressive measures such as adding new tiers of appellate tribunals and the outright abolition of the right of appellate review. (Id. at 131-132.) Whether the commission chooses to examine these particular solutions, however, is not relevant. The point is that dividing a circuit into two or rearranging some or all of the circuit boundaries does nothing to cure the true problem of burgeoning workloads. Drawing new lines is not even a short term cure for the problem. Creating new circuits or realigning old ones will merely disrupt the current appellate process without any future gain. This commission has a unique opportunity, perhaps the judiciary's only opportunity, to impress that fact upon Congress. Finally, if it is the commission's ultimate conclusion that circuit realignment must occur, its efforts should be to convince Congress that we need fewer, larger circuits, not smaller ones.

I appreciate the opportunity to address the commission. For the reasons I have outlined, I oppose splitting the Ninth Circuit, or for that matter, any realignment or restructuring of the federal appellate courts. What we do need is a meaningful debate on the parameters of federal jurisdiction and a congressionally mandated mechanism for controlling the number of appeals. I hope that the commission agrees and will take this opportunity to so inform Congress.

Thank you for your attention.