I have served as a United States Bankruptcy Judge for the District of Idaho since March, 1990. I have been Chief Judge since 1993. Prior to my appointment, and beginning in 1977, I practiced bankruptcy law throughout the Northwest in the Federal courts. Ours is a small court, with two bankruptcy judges handling about 7500 pending cases, the bulk of which are consumer Chapter 7 and 13 cases. Our business cases tend to involve agriculture. For the past several years I have served as a visiting judge and also participated in the Ninth Circuit's Bankruptcy Workload Equalization Program (BWEP), whereby bankruptcy judges from within our Circuit are assigned cases from other districts with particularly high caseloads. I have served as a visiting judge in several larger districts, including the Central District of California. Most recently, under the BWEP, I have had adversary proceedings assigned to me from the Southern District of California (San Diego). I am responsible for 150 of such cases at a time. I administer these cases, for the most part, from my chambers in Idaho, conducting hearings and conferences with counsel by phone. I travel to San Diego once or twice each year for one week at a time to conduct evidentiary hearings and trials.

After considerable thought about the matter, I have concluded that for administrative and other reasons, the Ninth Circuit should be divided. While I assume that new Circuit would include the Northwest districts (Alaska, Idaho, Montana, Oregon, Eastern and Western Washington), I have no particular concerns about including the District of Arizona in the new Circuit.

My personal reasons for supporting a split are many, but I will highlight those which are most important to me as a bankruptcy judge. I support the positions advanced by others advocating a division of the Ninth Circuit, however, especially those expressed by Ninth Circuit Judges Thomas Nelson and Stephen Trott, who make a case for division which I think is grounded in common sense and particularly persuasive.

Splitting the Ninth Circuit would offer bankruptcy judges an increased opportunity to participate in the governing and administration of the Federal judicial system nationally. Bankruptcy judges in particular, and all judges in the Ninth Circuit generally, are under represented on the committees and other groups designated by the U.S. Judicial Conference and the Administrative Office of the Courts to develop the important policies for the operation of America's courts. The Ninth Circuit is also under represented on the Judicial Conference itself. Assignments to the Conference, committees and project groups invariably respect Circuit lines, and creation of a new Circuit would enhance the prospects for judges from the Western United States to have a fair voice in these important matters. This is appropriate since while I understand about 25% of the cases in the nation are filed in the courts of the current Ninth Circuit, our representation on the U.S. Judicial Conference and its committees is nowhere near this level.

Dividing the Circuit will give Northwest bankruptcy judges more voice in administrative and governance matters at the Circuit level. In the Ninth Circuit, only 19 bankruptcy judges are chambered in the Northwest, with another 7 chambered in Arizona. California alone has 40 bankruptcy judges, with 21 of those judges working in the Central District. Assignments to Circuit committees and special project groups reflect this proportion, meaning that for Northwest bankruptcy judges, opportunities to serve are understandably limited. Strictly as a function of the distribution of judges among the districts, the Northwest districts are not sufficiently represented in Circuit activities, and realigning the Circuit would solve this problem.

For example, the collective voice of bankruptcy judges in this Circuit is channeled to the Circuit Council via the Conference of Chief Bankruptcy Judges, which is composed of the thirteen chief bankruptcy judges from each district in the Circuit (I have excluded Guam, since the district judge hears all bankruptcy cases). Leadership of this Conference is vested in a three member Executive Committee and a Chair. The Chair is the non-voting representative of bankruptcy judges at the Ninth Circuit Council meetings. Because there are so many districts in the Circuit, and because most chief judges serve a fixed term, a significant number of chief judges do not have the benefit of service on the Executive Committee or as Chair of the Conference. If the Circuit were divided into two circuits with six or seven districts each, all chiefs would have such an opportunity to serve leadership roles in the Conference.

Aside from administrative considerations, I understand that the Ninth Circuit publishes about 1000 decisions per year. Even given the narrower legal interests of bankruptcy judges, it is a daunting task to keep current on this vast body of decisional law. Because of the volume of cases, trial judges and lawyers constantly risk of "missing" recent binding decisional authority from the Ninth Circuit, and locating relevant authority is made more difficult. Moreover, and with no offense intended to the Circuit judges who bear the heavy burden of producing the decisions, we seem too often to encounter Circuit decisions which appear inconsistent with one another. The limited use and attributes of the en banc procedure in the Ninth Circuit does not seem to adequately address this problem.

On the subject of case volume, while I do not want to seem critical of the productivity of our Court of Appeals, it does seem to take the Ninth Circuit considerably longer to resolve appeals than in many of the smaller circuits in the Nation. It may sound trite, but in any bankruptcy case "time is money" and the failure of our system to promptly address the needs of the parties can impair the parties' ability to obtain effective relief. I think we could do better by creating two smaller circuits.

Some suggest otherwise, but I also think that collegiality among the judges is fostered when smaller numbers are involved. As indicated above, it is much easier for the 19 or so bankruptcy judges of a Northwest Circuit to build close professional relationships. Some bankruptcy judges from the larger Ninth Circuit districts have expressed concerns about being unable, because of the numbers, to forge close friendships and working partnerships with the other judges, even within their own district. I have heard it said that collegiality is a privilege Federal judges cannot afford. I disagree with this statement because I think collegiality is a positive factor in the productivity and effectiveness of judicial officers and courts.

I cringe when I hear representatives of the Ninth Circuit and judges proclaim that the "vast majority" of lawyers and judges working in this Circuit oppose a division. Should this be a surprise? This "vast majority" is located outside the Northwest, and it is little wonder the numbers line up as they do concerning Circuit size and composition. This issue should not be approached as a popularity contest. I am also disappointed when reliance is placed upon the resolutions of judges and lawyers adopted at the Ninth Circuit Conference, where representation is again based upon the size and location of the districts. The local bar association resolutions opposing a split may also be suspect. My impression is that the Idaho State Bar Association resolution which the Ninth Circuit frequently cites opposing a split is very old. From my observations, none of our current district lawyer representatives or State Bar officers have endorsed retaining the current Ninth Circuit, nor has any effort been made recently to poll the bar locally. And as far as the opinions of constituencies are concerned, the most important constituency, the public we serve, through their elected Idaho Congressional representatives, have expressed unanimous support for a split.

Some also insist that we will lose the value of the various innovations we have developed in the Ninth if the Circuit is divided. The BWEP is cited by the Circuit as an example of a large number of judges effectively working together. Make no mistake, the BWEP has been somewhat helpful dealing with the massive caseloads in California. However, its benefits have been "one-way". BWEP has never been used to assist Northwest districts. In addition, it is a short-term solution since caseloads are uniformly and rapidly increasing, and few Northwest judges will be able to continue to participate in the program as their local responsibilities grow. BWEP is a poor substitute for more judges in California. Moreover, if it is worthwhile, there is nothing to prevent the program from being continued as an inter-Circuit project, or perhaps even expanding its use to meet needs on a national, not just a regional, basis.

You may also hear that if Circuit boundaries are adjusted, we will lose the advantages we enjoy from Ninth Circuit Bankruptcy Appellate Panel (B.A.P.). I have several responses to this suggestion.

First, Congress is currently considering legislation which will require direct appeals from bankruptcy court orders to the courts of appeal. My impression is that this proposal enjoys broad support in Congress. While one can argue about the wisdom of such legislation, the reality is that the B.A.P.'s future is at best uncertain.

In addition, dividing the Circuit would not deprive either resulting Circuit of its benefits, if the program is retained by Congress. There is simply no good reason why both circuits could not operate a B.A.P. with enhanced opportunities for judicial participation and access by the litigants to the new panels. The statutes authorize the use of regional B.A.P.s, so that if it is more desirable and practical to retain the presently constituted B.A.P., such can be accomplished even if the Circuit was divided. The point is that division of the Ninth Circuit does not necessarily mean an end to the B.A.P. in either newly configured Circuit.

More importantly, though, in spite of the hard work of the judges serving on the Panel, the Ninth Circuit B.A.P. suffers from a critical lack of support in our District and many others in the Northwest. Based upon statistics from the Clerk of the B.A.P. for 1996 and 1997, about 70% of the cases handled by the Ninth Circuit B.A.P. originated in California, with about 45% from a single district, the Central District. By contrast, only about 12% of the B.A.P.'s total cases originated from Northwest districts. The majority of Appeals in Northwest districts now go to the district courts, in spite of the availability of the B.A.P.

There are interesting implications from the Northwest districts' reluctance to use the B.A.P. For example, because B.A.P. judges do not hear cases from their own districts, the judges from outside the large California districts must decide most of the B.A.P.'s cases. In sitting as a pro tem judge on the B.A.P. on several occasions, of the 30 or so cases I heard, I cannot remember any from the Northwest, nearly all of them originating in the Central District of California. Similarly, appeals from districts in the Northwest, like Idaho, are by necessity assigned to California B.A.P. judges for resolution. Our local bankruptcy bar may be justifiably reluctant to have an appeal from a typical Chapter 12 family farmer case, for example, heard by judges who have very little experience with agribusiness. As a result, our bar, like many in the Northwest, simply "opts out" of the B.A.P.

In addition, because fewer Northwest bankruptcy cases proportionately go to the B.A.P., B.A.P. hearings are rarely scheduled here. In my tenure as a bankruptcy judge, and before as a bankruptcy lawyer for 13 years, I can think of only three occasions on which the B.A.P. conducted hearings in Idaho.

Obviously, having two B.A.P.s for our region would increase the opportunities for bankruptcy judges to serve on the panels, both as permanent members and as pro tems. Currently, of the seven Ninth Circuit B.A.P. judges, one is from the Southern District of California, two are from the Central District of California, and one each come from Arizona, Nevada, Idaho and Western District of Washington. In other words, seven districts (Alaska, Hawaii, Oregon, Montana, Eastern Washington, and Northern and Eastern California) have no representation on the B.A.P. This representation issue is a continuing source of concern among Ninth Circuit bankruptcy judges. Depending on the boundaries of a new Circuit, perhaps twice as many judges could serve on the B.A.P., reflecting a more balanced geographic representation. In sum, even if Congress chooses to continue the B.A.P.s, losing access to the Ninth Circuit B.A.P. would not be a significant hardship for Northwest litigants, and especially those in the District of Idaho. By contrast, creation of a more locally oriented Twelfth Circuit B.A.P. would improve prospects for participation by judges on the panels, and likely increase use of the B.A.P. in this region and District, thereby relieving local district courts of the burden of bankruptcy appeals.

While not necessarily a "bankruptcy issue," the final observation I would make seems almost self-evident. I understand that given the Ninth Circuit's caseload, a significant number of additional Circuit judges are needed. If Congress responds to this need, even in part, and if the increase in case filings continues, I wonder how large the Ninth Circuit must become before a realignment occurs. If the circuits are truly to be "regional" in constitution, surely at some point a limit on the number of judges must be reached. I wonder why it is practical or wise to postpone that decision for future debate. I understand there are about 40 active and senior Circuit judges on the Court at this time. Will 50 Circuit judges producing thousands of published decisions per year justify a division? 75? 100? If a truly regional circuits is intended, a split of the Ninth is inevitable.

I have genuinely enjoyed my association with the Ninth Circuit and its many fine judges. However, the continuing debate over a split has become division and counterproductive. Simply put, the time has come to make a change.

Thank you for your consideration.