I greatly appreciate the Commission's invitation to testify today. I hope that I can contribute in some small way to help you achieve a constructive response to your statutory mission.

The statute directs the Commission to study the present division, structure, and alignment of the federal circuits, "with particular reference to the Ninth Circuit" and report to the President and the Congress "its recommendations for such changes in circuit boundaries or structure" that will promote "expeditious and effective disposition of the caseload" in a manner "consistent with fundamental concepts of fairness and due process." Pub.L. 105-119, §305, 111 Stat. 2491 (Nov. 26, 1997).

To meet its statutory objective, the Commission has solicited public testimony on whether each of the federal circuits renders decisions that are "reasonably timely," "consistent," and "nationally uniform" in interpreting federal law, and are reached with "adequate, deliberative attention of judges." To focus the testimony, the Commission poses three questions about the operation of the federal appellate courts, seeking to identify: (1) perceived problems in meeting the foregoing objectives, (2) proposed measures to address the problems, and (3) procedures that are working well.

I am here to talk about the Ninth Circuit because I have practiced before that Court for more than thirty years, as a Deputy State Attorney General (1969-1977), as Chief Assistant U.S. Attorney, Organized Crime Strike Force Chief, and Appellate Section Chief in the U.S. Attorney's Office (1978-1989), and in private practice at Landels Ripley & Diamond, LLP (1989-1998).

I have briefed and argued nearly 150 appeals in the Ninth Circuit, including nearly 100 cases resulting in published decisions, two en banc cases and one U.S. Supreme Court argument in a case arising from this circuit. I have also briefed and argued fifteen cases in the California Supreme Court, a hundred or more in the California Courts of Appeal, and two in the Fifth Circuit. I have also served on the Ninth Circuit Rules Advisory Committee (1986-1989) and as a Lawyer Delegate to the Ninth Circuit Conference (1990-1993).

I am the current President of the American Academy of Appellate Lawyers, past chair of the Appellate Courts Section of the Bar Association of San Francisco, a Director of the Northern California Chapter of the Federal Bar Association, and a member of the California Academy of Appellate Lawyers. I have also served as a Deputy Legislative Counsel to the California Legislature (1965-1966) and as a legal officer in the U.S. Navy (1966-1969). I have taught appellate practice at Hastings Law School and at numerous seminars.

Because of the diversity of perspectives of the 200 members of the American Academy of Appellate Lawyers practicing in more than forty states, the views I express here are my own, based on my own experience and discussions with lawyers and judges, and not those of the Academy or any other organization. In addition to my appellate practice experience, my testimony today draws upon a cross section of articles, studies, and reports discussing circuit alignment and structure (See, Sources, p.8), as well as all of the prior testimony before the Commission made available to the public on the internet.

I appear today to present a specific proposal for restructuring the Ninth Circuit. To ensure independence, I have not cleared my proposal with the Ninth Circuit prior to its submission to the Commission today. I have, however, discussed my proposal with a number of experienced lawyers, all of whom welcomed my approach as a worthy option for consideration.

I have read Chief Judge Hug's statement on behalf of the Ninth Circuit. There is much to be said for maintaining the status quo as he so cogently argues. On the other hand, those who have criticized the status quo have expressed views that have achieved sufficient resonance to justify creation of this Commission. I fear that if the Commission's study does not respond to these concerns, the impetus for a legislative fix will gain momentum and produce a political solution that may fail to fully address the questions posed by the Commission.

My proposal for restructuring does not require the creation of a new circuit. As explained below, my proposal is based on the premise that all of the various alternatives for splitting the circuit have significant defects that lead me to conclude that a split is worse than the status quo.

Nevertheless, something must be done to divide the current caseload into more manageable segments, ensure consistency of decision, reduce the air travel time of the judges over the vast geographical expanse of the circuit, preserve the innovations and administrative efficiency of the circuit, and eliminate the need for a very costly infrastructure that a new circuit would require.

Accordingly, I suggest that the Commission consider keeping the present Ninth Circuit intact administratively, but divide its operations equally into a Northern and Southern Division using the configuration of states and districts suggested by the Hruska Commission. Thus, the Northern Division would consist of Alaska, Washington, Oregon, Idaho, Montana, Northern and Eastern California. The Southern Division would include Arizona, Nevada, Hawaii, Guam, Marianas Islands, Southern and Central California.

This approach would achieve about a 50:50 split of the caseload and judges assigned. For cases arising in the Northern Division, two judges would be drawn from the North, one from the South, and vice versa for cases arising in the Southern Division. I do not propose that all three panel judges come from the same regional division because that would lead to a loss of contact and collegiality, and to inconsistent decision-making.

Under this two-divisions-in-one circuit configuration, the disposition of cases would be divided in half, and the concerns of California dominance would be diminished. A jumbo circuit would remain, but the concerns over intra-circuit inconsistency, and an uneven split of the caseload would be mitigated, while the goals of economic, social, and population diversity would be maintained. The cost-savings to the public in not establishing a new administrative structure would be substantial. Equally important, California law in diversity cases and federal law affecting California (e.g. Fourth Amendment search and seizure standards guiding police officers) would be determined within a single circuit. Reconciliation of inconsistent interpretations of state and federal law affecting California by two different circuits (if California was split) would thereby be avoided.

Intra-circuit conflicts that do arise would be resolved by modifying the limited en banc court of eleven judges to consist of five judges selected from each division, plus the Chief Judge. (9th Cir. Rule 35-3) I share the view of many experienced appellate lawyers that the circuits are not utilizing the en banc process sufficiently to reconcile intra-circuit inconsistencies in panel decisions. In the Ninth Circuit, the limited en banc structure should be invoked more often to resolve intra-circuit and inter-circuit conflicts that do arise. In addition, the limited en banc configuration could be changed to provide that six of the judges be selected from the majority of judges voting to hear a case en banc. Such a modification would address the concern that the views of the majority might not be fairly represented in the limited en banc proceeding.

As the Commission knows, the two division approach that I propose is not unprecedented. In 1980 and 1981, before the Eleventh Circuit split off from the Fifth Circuit, the old Fifth Circuit operated in two discrete divisions, Unit A and Unit B. Cases arising in Texas, Louisiana and Mississippi (Unit A) were heard and decided by circuit judges residing in those states. Cases arising in Alabama, Georgia and Florida (Unit B) were heard and decided by circuit judges residing in those states. The operation of two divisions was a period of transition leading to the circuit split. For the Ninth Circuit, I propose that the operation of the two divisions be maintained for a sufficient period of years to fairly assess the experiment.

The first major analysis of the federal circuit was conducted by the Hruska Commission in 1973. It is startling, but ultimately not surprising, that the issues confronting appellate courts today were articulated in precisely the same way twenty-five years ago. The 1973 Hruska Report was concerned with four major problems: (1) an unprecedented increase in circuit court caseloads, (2) resulting backlogs and delays, (3) reduced oral argument, and (4) summary dispositions. The same problems multiplied many times over exist today.

The Hruska Commission identified the following criteria:

(1) a circuit with more than fifteen judges cannot function effectively, (2) circuits should include at least three contiguous states and no one-state circuit should be created,

(3) each circuit should have diversity of population, legal business and socio-economic interests, and (4) in considering realignment of the Fifth and Ninth Circuits, the alignment of other existing circuits should not be disturbed.

As discussed above, my proposed structure of two-divisions-in-one circuit addresses all of these criteria.

The Hruska Commission also proposed a new Twelfth Circuit consisting of Southern and Central California, Arizona and Nevada, and a realigned Ninth Circuit consisting of Northern and Eastern California, Oregon, Washington, Idaho, Montana, Alaska, Hawaii, Guam and The Marianas Islands. Although such a split results in a nearly 50:50 division of the caseload, that proposal was never implemented, largely because of the problem created by determining law affecting California in two different circuits. That problem is avoided under my proposal.

Debate over the division of the Ninth Circuit has been on-going since 1937. The case for maintaining the circuit as is relies on the following principal arguments: (1) the Ninth Circuit is the nation's best laboratory for innovative judicial administration, (2) if fifteen judges per circuit is considered a maximum as the 1973 Hruska Commission Report suggested, by the year 2020, as population and caseloads grow, there might well be as many as twenty circuits, risking the "balkanization" of federal law,⁽¹⁾ (3) no one President can easily reshape the ideological balance of a large circuit, (4) the states in the Ninth Circuit have more in common than is said to divide them, (5) splitting the Ninth Circuit into two equal caseloads requires dividing California which has 65 percent of the cases, but dividing California presents obvious new problems, including a mechanism for resolution of conflicting decisions, and (6) a northwest circuit of Alaska, Washington, Oregon, Montana and Idaho will have less than twenty-five percent of the cases and only six or seven of the present twenty-eight judges. That means there will still be a very large Ninth Circuit of twenty-one judges, with an immediate need for five to seven more judges.

The case for splitting the Ninth Circuit is based on the obvious fact that the circuit is very big, in geographic area, population, caseload and number of judges. As a result, many observers believe there are long delays in case disposition and a lack of consistency in decision-making, creating uncertainty for litigants, lawyers and trial judges. As evidence, those who favor a split of the circuit point to the circuit's high reversal role in the Supreme Court.

The Ninth Circuit judges respond that the delays are principally in record preparation and briefing and not in disposition by the court. One study by Professor Hellman shows there is no serious problem of inconsistency, but simply principled distinctions being drawn by different panels.

Many lawyers believe, however, that there are significant delays and inconsistencies in Ninth Circuit decision-making. These may be anecdotal perceptions, and the delays are in part attributable to the large number of long-term unfilled vacancies on the circuit, that are being filled far too slowly. Such perceptions, nevertheless, have some substance and should be addressed.

As discussed above, there are no simple solutions to the issues raised about the configuration of the Ninth Circuit. My proposal is designed to preserve what is working well, but also attempts to respond to those calling for more drastic changes. For me, there is at present no plausible way to split the Ninth Circuit. Yet, for many schooled observers a "jumbo" circuit of twenty-eight or more judges is a recipe for intra-circuit inconsistency and dilution of quality control. A two-divisions-in-one circuit structure may serve to reduce the pressure for immediate circuit realignment and at the same time provide a

mechanism for transition. I offer this proposal for your consideration and would be happy to answer any questions.

Dated: April 24, 1998

Respectfully submitted,

________________________
Sanford (Sandy) Svetcov
Landels Ripley & Diamond, LLP
350 The Embarcadero
San Francisco, CA 94105
Tel: 415-512-8700

(1) Hruska Commission Report (1973)

(2) ABA Report (1989)

(3) D. Meador, 56 U.Chi.L.R. 603 (1989)

(4) T. Baker, 22 Ariz.St.L.J. 917 (1990)

(5) C. Wallace, 77 Judiature 288 (1994)

(6) C. Wallace, 56 Ohio St.L.J. 941 (1995)

(7) E. Jones, 73 Texas L.R. 1485 (1995)

(8) S. Reinhardt, 73 Texas L.R. 1505 (1995)

(9) Symposium, 57 Montana L.R. 241 (1996)
(C. Tobias, C. Burns, D. O'Scannlain, A. Hellman, P. Hug)

(10) R. Aldisert, Federal Lawyer 41 (Jan. 1997)