BEFORE THE COMMISSION ON STRUCTURAL ALTERNATIVES
FOR THE FEDERAL COURTS OF APPEALS

INTRODUCTION

This statement is being submitted pursuant to instructions in a news release dated February 26, 1998. The news release was supplied by the Circuit Executive of the Ninth Circuit Court of Appeals. It was issued to the undersigned by request and the undersigned has no other instructions save those appearing in the news release which informs a reader that there will be hearings before the Commission in Seattle on May 27 and San Francisco on May 29 and:

In lieu of testifying at a hearing, interested persons may submit a statement in writing. . . prior to June 1, 1998. . .

The undersigned is a member of the Ninth Circuit Court of Appeals Senior Advisor Board who have been invited to identify possible individuals to testify at the hearings. Regrettably, notice of these hearings arrived so late that it has been impossible to identify and arrange for witnesses, particularly in view of the fact that these proceedings are without any funding whatsoever and expenses involved for any person attending from Montana would be substantial.

Accordingly, the undersigned submits his personal opinion and gives a resume of his interviews with other attorneys in the State of Montana on the subject of dividing the Ninth Circuit Court of Appeals.

A curriculum vitae of the undersigned is attached.

STATEMENT OF POSITION

It is the opinion of the undersigned and others with whom he has conferred that the Ninth Circuit should be split. I express no opinion as to the precise configuration of the several states which would be included in the newly-formed circuits, other than to comment that the geographical compactness and continuity would be desirable for reasons which appear hereafter.

Since receiving notice of the hearings, I have endeavored to arrange for witnesses to appear before the Commission in either Seattle or San Francisco, but constraints of time and money prevent such appearances. I shall not identify the individual attorneys with whom I have spoken, but can identify one principal corporation. Corporate counsel have specifically been included in the list of appropriate presenters.

I have discussed the issue of splitting the Circuit with five outstanding Montana attorneys and with the legal staff and management of a major utility company. One of the five attorneys disagrees with my position and believes that the Circuit should not be split. All others are in favor of splitting the Circuit. The corporate staff are, of course, only expressing their personal opinions.

REASONS FOR SPLITTING THE NINTH CIRCUIT

A. Grounds for Previous Arguments.

Previous arguments regarding the splitting of the Circuit appear in Montana Law Review, Volume 57 No. 2, summer 1996, commencing at page 241, Emory Law Journal, Volume 44 No. 4, fall 1995 being an article by Carl Tobias, Professor of Law at the University of Montana, Position Statement Representing the Position of the Ninth Circuit Court of Appeals dated April 15, 1998 issued by Procter Hug, Jr., Chief Judge, and directed to judges in the Ninth Circuit, clerks of court, federal defenders, U.S. attorneys, lawyer representatives, and Senior Advisory Board members. There are other incidental references in the literature.

The arguments set forth by the respective advocates on this issue deal largely with delays, efficiency, intra-circuit conflicts, and en banc review, potential for inconsistent law along the seaboard, cost, and other matters which need not be repeated here. Suffice it to say that previous arguments have addressed administrative problems such as cost, delay, and other matters mentioned above. In my opinion the arguments advanced so far do not address one of the most fundamental issues.

B. Fundamental and Beneficial Reason for Split.

Even though federal judges are appointed and never stand for election, there is a political relationship between the judge and the public served by him or her.

The appointment process is recognized and perceived by all as highly political. On the other hand, performance of the duties of office is rarely perceived as being affected by political thought. The word "political" as used here does not mean simply Democrat vs. Republican but rather as being the relationship between government and the public.

So are federal judges influenced by public thought? If so, what is the process and what does that have to do with splitting the Ninth Circuit?

Great minds and good scholars have concluded that indeed there is a continuing relationship between a judge in office and his public. The issue was addressed in Gregory v. Ashcroft (1991), 501 U.S. 452, 115 L.Ed.2d 410. In that case, the petitioners were Missouri state judges originally appointed to office, thereafter retained by election unopposed. The judges contended that a mandatory retirement provision of the Missouri Constitution did not apply to them. The governor of Missouri was named as one of the defendants. He filed a motion to dismiss, which was granted by the Federal District Court, affirmed on appeal to the Circuit Court, and finally affirmed by the United States Supreme Court.

In the process of analyzing the impact of the Age Discrimination in Employment Act, 29 U.S.C. § 621, the United States Supreme Court quoted Oliver Wendell Holmes in the following way:

The common law, unlike a constitution or statute, provides no definitive text; it is to be derived from the interstices of prior opinions and a well-considered judgment of what is best for the community. As Justice Holmes put it:

"The very considerations which judges most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of life. I mean, of course, considerations of what is expedient for the community concerned. Every important principle which is developed by litigation is in fact and at bottom the result of more or less definitely understood view of public policy; most generally, to be sure, under our practice and traditions, the unconscious result of instinctive preferences and inarticulate convictions, but nonetheless traceable to views of public policy in the last analysis." O. Holmes, The Common Law 35-26 (1881). (Emphasis supplied.)

The above quotation from Justice Holmes is a reflection of reality. But jurisprudential theory carries us to the same position. Laurence H. Tribe, the well-known author of American Constitutional Law put the theory as follows:

The critics start from the assumption that, in a political society which aspires to representative democracy or at least to popular representation, exercises of power which cannot find their justification in the ultimate consent of the governed are difficult, if not impossible, to justify. Judicial review is thus immediately and doubly suspect. The judges who declare statutes and executive actions to be unconstitutional do not acquire their positions through popular election; once appointed, they cease to be accountable even to the elected officials who nominated and confirmed them but rather are secured in their independence by life tenure and guaranteed salary. Perhaps even more significantly, judicial review is itself said to be antidemocratic since its result is the invalidation of government action, legislative or executive--action that, however indirectly, did have the sanction of the electorate. It is obvious, the critics argue, that if judicial review cuts against the grain of representative democracy, judges should invoke their power to strike down legislative and executive action only sparingly. Programmatic and protracted courses of constitutional adjudication are to be avoided; such campaigns, as the history of the Supreme Court's economic due process era shows, call public attention to the judiciary's antidemocratic character and inevitably transform a theoretical problem of legitimacy into a real one, a problem for which the political process suggests no obvious solution and thus a problem which ultimately ends in crisis. And, even when crisis is avoided, the most far-reaching decisions of the Court are said to sap the body politic of the will to seek truly meaningful reform: symbolic victories in the Court replace real victories in life.

One school of thought among the critics also holds that, if judicial review is not itself democratic, it should nonetheless link itself to public consent in some way. . . (Emphasis supplied.)

American Constitutional Law (Second Edition), Lawrence H. Tribe, p. 62.

In summary, when judges make their decisions too far from the popular will they become unquestionably anti-democratic and their decisions become impossible to justify.

That brings us to the second question. If judicial action is to be in accord with popular will, then what process can be employed where judges are appointed for life and must never face the electorate?

Here we must recognize "politics". Though judges do not run for office, they cannot help being mindful of public attitudes of the community in which they reside or with which they have close contact. "Close contact" is the key phrase. Close contact between any member of the judiciary and the public is difficult. Judges go to great length to avoid the appearance of bias or favoritism to any group or cause. But still, it is almost axiomatic, that living in a community results in knowledge of the community, and the axiom goes further--the larger the community the more difficult to know the popular will or attitude.

To the knowledge of this writer, no one has ever polled the citizens of Arizona, California, Nevada, Alaska, Hawaii, Idaho, Montana, Oregon, Washington, Guam, and the Northern Mariana Islands to determine their familiarity with Ninth Circuit Judges. We must draw conclusions based upon our observations of "the political process". It is extremely difficult to know the President of the United States. If one will make a little effort, it is quite easy to know Senator Conrad Burns and Senator Max Baucus and for them to know us. It is very difficult for a Montana attorney to know Procter Hug. It is not very difficult for a Montana attorney to know J. A. Turnage, Montana Supreme Court Chief Justice and for him to know community attitudes.

Where is the balance point for proper size of the circuit? There is no precise answer. We know one thing--the circuit is too big. There is no way the judges of the Ninth Circuit can sense the community attitude of the people over whom they exercise jurisdiction. There are over 50 million people. There are 19 judges, 8 of whom are from California! One from Montana! Territorially the Ninth Circuit is bigger than Western Europe. (Montana is almost as big as France.)

CONCLUSION

Bring the Court to the people and avoid the probability that "judicial review is thus immediately and doubly suspect."

Yours very truly,

BRUCE R. TOOLE

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