November 6, 1998
BY TELECOPY AND U.S. MAIL
Commission on Structural Alternatives
for the Federal Courts of Appeals
Thurgood Marshall Federal Judiciary Building
One Columbus Circle, N. E.
Washington, D.C. 20544
Re: Comments on the Commission’s Tentative Draft Report
Dear Members of the Commission:
On behalf of Governor Wilson, I submit the following comments on the Commission’s Tentative Draft Report released on October 7, 1998.
The Governor concurs with the Commission's recommendation against splitting the Ninth Circuit and considers many of its observations – such as those concerning bankruptcy appeals and two-judge panels in suitable cases – to have merit.
However, the Governor believes that the proposal to divide the Ninth Circuit Court of Appeals into three divisions – which would split California – would be counterproductive and not in the best interests of the people of California. Less radical reforms could more effectively address the problems identified by the Commission.
Although this letter will identify the Governor's concerns with the proposal and suggest more effective ways to address the problems which the Commission has identified, the Governor does want to express his appreciation for the Commission's hard work, diligence, and creativity in addressing a difficult subject.
I. The Ninth Circuit Should Not Be Divided Into Regional Divisions.
The Governor agrees with the Commission’s conclusion that "[h]aving a single court interpret and apply federal law in the western United States, particularly the federal commercial and maritime laws that govern relations with the other nations on the Pacific Rim, is a strength of the circuit that should be maintained." (Report, p. 45.)
However, the divisional arrangement proposed by the Commission would not only undermine this objective but also raise new problems:
1. The principal feature of the Commission's proposal is a division of the Ninth Circuit into three regions – which would result in a split between Northern and Central/Southern California – wherein "[d]ecisions made in one division would not bind any other division." (Report, p. 41.) This division would subject California to differing interpretations of the law and result in forum shopping, particularly in connection with constitutional challenges to state statutes and statewide initiatives, as litigants searched for the appellate division that most favored their case.
2. While the Commission recognized the risk of forum shopping and the prospect of "subjecting Californians to possibly diverging lines of federal authority" (Report, p. 41), the report states that "in the California state appellate court system, where the intermediate appellate system is organized into geographic districts, the decisions of one court of appeal have no binding precedential effect outside that court's jurisdiction." Id. To the contrary, a California trial court is bound by the decisions of any of the California Court of Appeal's six districts. See Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450, 455 (1962) ("[d]ecisions of every division of the District Courts of Appeal are binding upon all the [trial] courts of this state"). Indeed, where a conflict exists between two appellate divisions, this rule extends so far as to permit a trial court to ignore the precedent of the appellate division in which the trial court sits and to apply the law of the other division. See id. at 456 ("where … appellate decisions are in conflict … the court exercising inferior jurisdiction can and must make a choice between the conflicting decisions.").
3. The proposed Circuit Division only resolves conflicts among decisions from the three regions, and does not review erroneous or unsound decisions, which deprives California of a coherent, circuit-wide law. To illustrate the point, where one division invalidates a state law, but no similar legal challenge is pending in another division, the Circuit Division's jurisdiction would not be invoked (because there was no conflict), and a state law would quite literally govern one half of the State but not the other – unless state government chose to cease enforcing the law. See Article III, section 3.5 of the California Constitution ("An administrative agency … has no power … [t]o declare a statute unenforceable, or refuse to enforce a statute, on the basis of it being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional."). Making a decision in one region binding on the other region will resolve this problem, but will exacerbate the risk of forum shopping and will require Ninth Circuit judges to be familiar with decisions throughout the Ninth Circuit – a need
that the divisional arrangement sought to mitigate. (Ironically, the large number of judges in many of the California state appellate districts – the state's second appellate district alone has more judges than the Ninth Circuit – makes a calculation based on forum shopping less predictable because the panels can vary so much.)
4. The proposed seven-judge Circuit Division – although charged with the duty of resolving conflicts among the regions – is too small to be representative of the circuit. It would be preferable for the Circuit Division to simply be an en banc court on which a majority of the members of the Ninth Circuit sit. Otherwise, the seven-judge Circuit Division could decide important circuit-wide matters – upon which two divisions are split – by a majority vote consisting of as few as four judges, which is but one-seventh of the entire membership of the Ninth Circuit. Ironically, in exercising their jurisdiction to resolve inter-divisional conflicts, a four-judge majority of the Circuit Division could overrule a division's en banc decision handed down by at least as many as nine judges, perhaps voting unanimously.
5. The proposed Circuit Division's jurisdiction over conflicting decisions
is too narrow to promote a coherent jurisprudence throughout the Ninth Circuit. The jurisdiction of the Circuit Division should be extended to include erroneous decisions.
6. The Circuit Division – whose jurisdiction could only be invoked "after the panel decision had been reviewed by the division en banc or a divisional en banc had been sought and denied" (Report, p.42) – adds another expensive tier to the review process in the Ninth Circuit. As the Commission acknowledges in the context of bankruptcy appellate panels, "the multiple appellate levels of the system take too long and cost too much for many litigants." (Report, p. 58.) The same is true here. The Circuit Division adds a fifth tier to the current four levels of trial and appellate proceedings: (i) the district court adjudication; (ii) the appeal before a three-judge panel; (iii) a request for a rehearing en banc; (iv) a request for review by the Circuit Division; and (v) a request for review by the U.S. Supreme Court.
7. While the Commission agrees with the conclusion that "no regional circuit should consist of fewer than three states" (Report, p. viii), the proposed southern division only comprises one and one half states (Arizona and Central and Southern California). In light of the autonomous nature of a region as defined in the report, this regional division increases the risks of parochialism and reduces the objectivity that a more geographically diverse appellate division engenders.
II. The Better Solution Lies In Reforming The Circuit’s En Banc Review Processes.
Ultimately, the more effective cure for many of the problems recognized by the Commission lies not in the divisional plan, but in the implementation of more modest reforms – most notably the facilitation and more frequent usage of the Circuit’s en banc review processes. In the written testimony of May 29, 1998, the Governor recommended proposals to enhance and expedite the en banc review process (which can delay the finality of a panel decision) by doing the following: (1) broadening the en banc review process to allow any erroneous rule of law to be grounds for a request for en banc review, (2) increasing membership on en banc panels so that they better represent the Ninth Circuit, and (3) establishing deadlines by which circuit judges' affirmative votes for en banc review must be cast or deemed to be a denial of such a request for review.
Such reforms would also respond to a number of the criticisms lodged against the Ninth Circuit. The Commission’s draft report quotes Justices Anthony Kennedy and Antonin Scalia as concerned about the inadequacy of the Ninth Circuit’s en banc review process. (Report, p. 37.) Justice Kennedy is concerned that "the Ninth Circuit does not come close to the number of en banc hearings necessary to resolve intra-circuit conflicts, much less to address questions ‘of exceptional importance.’" (Report, p. 37, quoting Kennedy, J.) Justice Scalia is quoted as concerned with the inadequacy of the Ninth Circuit’s en banc procedures "not only to eliminate intra-circuit conflicts, but also to correct and deter panel opinions that are pretty clearly wrong." (Id., quoting Scalia, J.).
These comments suggest that reform of the en banc rehearing process so as to expand its scope to cover erroneous decisions and to require a majority of the circuit to participate in those rehearings may better resolve these concerns than dividing the Ninth Circuit into three divisions. Indeed, there is no reason to believe that the seven-member Circuit Division will be more effective in policing conflicts among the divisions than are the current Ninth Circuit’s larger, limited en banc panels, in which 11 judges can shoulder the burden of such review. Finally, regardless of the proposed Circuit Division’s effectiveness in policing such conflicts, the proposal makes no provision for circuit review of divisional en banc decisions that present "a question of exceptional importance," thereby eliminating one of the two grounds upon which a circuit-wide rehearing en banc may be ordered under Rule 35 of Federal Rules of Appellate Procedure.
III. Conclusion
The Governor agrees with the Commission’s conclusion that the presently-defined Ninth Circuit boundaries should not be split. We are concerned, however, that the divisional structure proposed in the Draft Report undermines the very principles favoring preservation of Ninth Circuit.
With all due respect, the Commission ought to reconsider the more modest suggestions this Office earlier proposed to promote analytically consistent decisions and to address the increasing caseload. Those reforms include reform of the en banc review process and the institution of measures to limit the appellate caseload, including:
These reforms (together with reform of the en banc process) – and not a divisional split of the Ninth Circuit – would promote analytically consistent and timely decisions and would appear to best respond to the problems which this Commission has identified.
Respectfully submitted,