United States Court of Appeals
for the Ninth Circuit
P. O. Box 31478
Billings, Montana 59107-1478

Chambers of Sidney R. Thomas United States Circuit Judge

Tel.: (406) 657-5950 Fax: (406) 657-5949

Statement to the Commission on Structural Alternatives
for the Federal Courts of Appeals
Seattle, Washington
May 27, 1998

My name is Sidney R. Thomas. I serve as a Judge on the Ninth Circuit Court of Appeals with chambers in Billings, Montana. I appreciate the opportunity to testify. My views are my own; I do not appear on behalf of the Court.

I joined the Court with a very open mind about whether the Circuit should be divided. As a litigator who had practiced for twenty years before the Court, I was extremely concerned about appellate delay. I had also studied the issue extensively as part of an ad hoc committee appointed to advise the State Bar of Montana about the proposed Ninth Circuit Reorganization Act of 1989.

After viewing court administration from both sides of the bench, and after careful examination of the alternatives, I oppose division of the Ninth Circuit. Creation of two circuits would not, in my opinion, reduce delay; on the contrary, it would increase it. Additionally, it would promote administrative inefficiencies which would reduce the availability of resources to both litigants and judges.

Before examining specific proposals, let me make a few general observations. There are several problems inherent in any circuit division. Any division will create unnecessary administrative duplication. Because budgets are caseload-driven, the creation of a new circuit does not mean more money will be available. On the contrary, existing resources must be divided. The result is replication of functions (such as file and case management, procurement, computer operations) which are, by their nature, more efficiently done on a large scale. Unnecessary and wasteful duplication of core services means less money available for functions which greatly enhance judicial efficiency. For example, the circuit mediation program has resolved thousands of appeals, over 500 in 1997 alone. The Pro Se Unit of the staff attorneys' office effectively manages and concludes thousands of pro se appeals each year. The Appellate Commissioner has removed an enormous administrative load from circuit judges by processing Criminal Justice Act vouchers, ruling on routine administrative motions, and conducting hearings in appropriate cases. Through the staff attorneys' office, the adoption of an aggressive screening program has resulted in the early judicial resolution of one-third of the Ninth Circuit caseload. In 1997, 1,805 cases were terminated on the merits through screening. In addition, judges resolved 4,052 motions through the screening program without having those motions referred to merits panels. The Bankruptcy Appellate Panel has successfully resolved a large number of bankruptcy appeals which would otherwise be decided by Circuit Judges. All of these innovations have kept appellate delay from increasing, despite large numbers of judicial vacancies. Although the same volume will exist after reorganization, reduced budgets will restrict the use of measures designed to minimize delay.

In addition, any division will inevitably result in circuit judges assuming greater administrative burdens. The current administrative load, already reduced because of staff assumption of duties, is also lessened because of the number of available judges. For example, the circuit has a judge serving as an en banc coordinator, another judge serving as death penalty coordinator, other judges spearheading the selection of magistrate and bankruptcy judges, and others serving the many essential committees of the circuit. These functions will have to be duplicated in any new circuit, with the result that the overall administrative burden on judges will be increased.

Unnecessary administrative duplication and reduced budgets will likely probably result in the termination or delay of programs designed to further improve efficiency and effectiveness in judicial administration, such as allowing oral arguments by video conference, electronic case filing and promoting public access via the internet, thus reducing labor requirements.

There is also, I believe, a general misconception that circuit division will result in a lower caseload. Any split will, of course, only divide the workload, not decrease it. None of the circuit divisions which have been proposed to date contemplate adding new judgeships; all envision keeping the same caseload per judge. Accordingly, with increased administrative responsibilities, decreased administrative support and identical caseload, processing delays will most likely increase with a circuit division.

Finally, any division will disrupt Ninth Circuit jurisprudence. This is not only true because of the development of federal law, but also because most of the states which form the Ninth Circuit have strong jurisprudential ties to California. California adopted the Field Code in 1850, followed by Oregon and Washington in 1854; Nevada in 1861; and Arizona, Idaho and Montana in 1864. In addition, all the other Ninth Circuit states have adopted significant aspects of California law, and rely on California judicial construction.

With these general concerns in mind, let us examine some of the structural alternatives which have been proposed. In my view, there are five important criteria for the creation of a new circuit: (1) the new circuit must have sufficient critical mass; (2) the division should allocate cases in approximately equal proportions; (3) the new circuit must have geographic coherence; (4) the new circuit should have jurisprudential coherence; and (5) division should increase the efficiency of judicial administration. Unfortunately, each of the proposed structural alternatives fails to meet this criteria; by contrast, the existing structure is satisfies it.

1. Northwest Circuit. While the proposed Northwest Circuit (comprised of Alaska, Washington, Oregon, Idaho and Montana) has geographic coherence, it lacks critical mass. These states accounted for 1,571 appeals in 1997. Only the First and the D.C. Circuits had fewer appeals (1,449 and 1,531 respectively). Draft legislation introduced proposing this division has, consistent with caseload, allocated seven judges to the new Northwest Circuit. However, unlike the First and D.C. Circuits, these judges would not be housed in one building. Rather, chambers would be situated across a large geographic area. Thus, the few judicial and administrative resources would be widely dispersed. Because budgets are also driven by caseload, the new Northwest would probably not be able to afford the administrative devices which have helped reduce delay, such as a Bankruptcy Appellate Panel, the Pro Se Unit, Mediation Unit and an Appellate Commissioner. Essential case management functions of the clerk's office would have to be unnecessarily duplicated, further reducing available resources. Judges would have to assume additional administrative duties, further reducing the time spent deciding cases.

With only 18% of the circuit work assigned to the Northwest, and 82% remaining with the "old" Ninth, the Northwest Circuit would lack proportionality of caseload ­ offering no improvements to the states remaining in the Ninth and no real prospect of faster decisions to the litigants in the Northwest.

2. The "Hopscotch" Circuit. The so-called "Hopscotch Circuit" (Alaska, Arizona, Idaho, Montana, Oregon, and Washington), a version of which passed the U. S. Senate last session, lacks geographic coherence. Separating Arizona from its neighboring states would create the only circuit with non-contiguous states. Administrative inefficiencies would be endemic, particularly with the two "co-clerks of court" system contained in the last bill. The division would lack proportionality, receiving only 25.9% of the appeals (2,251). The new circuit would also lack critical mass (only the D.C. and 1^st Circuits would be smaller), spread over an even larger geographic base than the Northwest Circuit.

3. The Hruska Commission division. Dividing California in half would meet the criterion of proportionality and critical mass, but would lack jurisprudential coherence. This would pose a significant problem for California litigators and lawmakers. The constitutionality of state-wide initiatives, for example, could be tested in two circuits. Different legal standards and tests might apply to criminal procedure. Although the Hruska Commission proposed a special en banc procedure as a solution, this would not prevent inconsistent rulings from three-judge panels, nor would en banc consideration be guaranteed.

4. The "Stringbean" Circuit. The so-called "stringbean" circuit would place Alaska, Arizona, Idaho, Montana, Nevada, Oregon, and Washington in a new circuit, with California, Hawaii, Guam and the Northern Mariana Islands remaining in the old Ninth. Although probably achieving a sufficient critical mass, the allocation would have proportionality difficulties with only 30% of the caseload transferred to the new circuit. Although the states would be contiguous, some geographic incoherence would exist because the major population centers would be at polar ends of the new circuit. The most recent legislation proposing this division included a "co-clerk" arrangement with two administrative centers. This would obviously foster administrative inefficiency, which would be compounded by twice replicating the essential clerk management functions. These unnecessary administrative expenditures, coupled with the costs of constructing new facilities, would virtually eliminate the availability of funding for mediation, pro se appeal management, and other measures which would enhance efficiency. The "old Ninth" Circuit would remain as one of the nation's largest with fewer resources available to it.

5. "Horsecollar" or Calfornia-only Circuit. This proposal would place all states except for California in a new circuit. Although the caseload split would be more proportional than most proposals, it would suffer from most of the other problems attendant to the "stringbean" circuit. More importantly, it would create a one-state circuit, which has been deemed undesirable.

6. Three-way split. One legislative proposal would split the circuit into thirds: a Southern circuit encompassing the Central and Southern Districts of California; a Central circuit comprising Arizona, Nevada, Hawaii, Guam, the Northern Mariana Islands, and the Northern and Eastern Districts of California; and a Northwest circuit consisting of Alaska, Washington, Oregon, Idaho and Montana. The creation of three small circuits would be administratively inefficient and would divide California.

Another version of this split would be to accomplish it administratively, with administrative functions de-centralized to each region and with only judges residing in the region deciding cases originating in it. This proposal would suffer from all the inefficiencies of a triple administrative replication. More fundamentally, there are simply not enough active judges to staff the plan, given its limitations.

7. Pacific Rim circuit. One proposal which has not gained legislative currency would retain the existing Ninth Circuit, except that Arizona and Montana would be made part of the Tenth Circuit. This proposal would not address any of the concerns about the present Ninth Circuit structure, would unnecessarily disrupt the Tenth Circuit, and would radically alter the law applicable to Arizona and Montana.

8. Administrative segregation/Hruska division. Another administrative proposal envisions maintaining the current Ninth Circuit structure, but administratively dividing the circuit in half along the lines proposed by the Hruska Commission. Under this plan, administrative functions would remain centralized, but panels would be restricted so that at least two judges from each "division" would sit on each case originating from that division.

Although this proposal would retain administrative unity, it is unworkable and undesirable. It is unworkable because there are not enough Ninth Circuit judges to staff the proposal. Currently, more than 70% of Ninth Circuit panels include a visiting judge; 90% of the panels include a visiting judge or a senior judge. In fact, there were only eight calendars in 1997 which were composed of three active Ninth Circuit judges. Due to court vacancies, over 100 arguments were canceled for lack of judges. Requiring two circuit judges from a division to sit on each case would significantly reduce the number of available panels to hear cases, thus significantly increasing delay. Further, the present allocation of judges between "divisions" is not proportionate, and there is nothing that requires it to be so.

In order to minimize delay, the Circuit needs maximum flexibility to deploy judges where they are required and to construct panels using senior and visiting judges as appropriate to leverage our existing judicial resources. Just as volume is a critical factor, so is case type. For example, death penalty cases consume enormous judicial resources. However, the distribution of death penalty cases is not uniform. California has 476 inmates on death row. Arizona has 122, more than all the Northwest states combined. Oregon has 22; Washington has 16; Idaho has 19; and Montana has 8. Neither Alaska nor Hawaii has the death penalty. When the Anti-Terrorism and Effective Death Penalty Act becomes fully implemented, additional time restrictions will be placed on the Court which cannot be accommodated with a mandatory two-judge allocation.

A two-judge requirement would also pose serious difficulties for the judicial screening program by which a third of the Circuit cases are decided because the three panel judges hear presentations from throughout the Circuit.

A modified version of this program has already been tried by the Circuit, and it has failed. The judges uniformly disliked it and concluded it would lead to more, rather than less, intra-circuit conflicts. Given that the proposal would exacerbate delay and intra-circuit conflict, it should not be adopted.

Although there are no viable structural alternatives which solve the problems confronting the Circuit, this is not to say that no solutions exist. First, as Congress begins to fill our judicial vacancies, delay will decrease. The magnitude and the impact of the vacancy situation cannot be overstated. When I began practice over twenty years ago, there were twenty-two appointed Ninth Circuit judges carrying a caseload of approximately 3,000 appeals. Until the last several months, our current court had only eighteen active judges carrying a caseload of 8,500 appeals. Thus, we are operating with fewer judges than we were twenty years ago, but almost three times the caseload. During the very short period when the Court was operating at full judicial strength, delays were minimized. If Congress can fill the vacancies, we can eliminate delay.

Second, the Circuit must continue to promote and experiment with time-saving procedures. The success of the mediation program, the Pro Se Unit and the judicial screening program all indicate that further time-saving and delay-reducing measures are possible.

Third, the Circuit must prioritize its technological development. If video-argument experiments prove successful, litigants will have the option of arguing their appeal without leaving their home states. Video-conferencing will also significantly reduce judicial travel. Full implementation of electronic filing will reduce costs and create greater access to information for litigants and judges. A subject matter database of pending cases will further reduce the possibility of conflicting decisions.

With the intelligent and aggressive use of these techniques, the Circuit can effectively address the problems facing it and provide an appellate forum of which we all can truly be proud.

I thank the Commission for the opportunity to testify.