November 6, 1998
SENT VIA E-MAIL, FACSIMILE 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
Dear Justice White and Members of the Commission:
I read with great interest the Commission's Tentative Draft Report and
take seriously the Commission's invitation to comment on that Report.
Perhaps the most significant of the Commission's conclusions is that there is no basis to split the Ninth or any other circuit. It is essential that Congress recognize that splitting circuits is no longer the way to deal with circuit court growth or help the circuits to move forward on a solid footing into the next century. On the other hand, it is disappointing that the Commission accepted the notion that federal circuit courts should be perceived as local tribunals, where cases from a geographical region should be heard by judges who reside in that geographical area. It is even more disappointing that the Commission thinks that each such geographical area court within a circuit can have its own law without a rule of stare decisis as to other panels sitting in other geographical areas in the circuit. The result is, paradoxically, a de facto split of the Ninth Circuit that is likely to create the same cacophony that the Commission noted exists on the Atlantic seaboard with respect to maritime law decisions.
The Commission takes comfort in its suggested procedure by stating that
in California the decision of a panel of the court of appeal is not binding on any
other court. But the Commission is mistaken. A decision of any panel of the
court of appeal is binding on all trial courts in the state unless there is a
contrary opinion from another panel. Thus, in the typical situation, where a
single court of appeal case is found that is on point, everyone throughout the
state knows what the law is.
If the Commission is determined to create local courts where a majority
of judges hearing cases from a region must reside in that region, at least apply
a stare decisis rule so that as to federal questions, we can have a uniform law in
the West. The problem is most acute, of course, in California where the
Commission suggests splitting the state -- each part with its own law -- a result
which California finds repugnant and which is based on a mistaken premise, as
noted above.
The Commission also suggests that this problem can be avoided by the
seven judge central en banc court that would be created. But aside from the
serious problem that seven judges cannot be said to represent a consensus of the
entire court, the cumbersome two stage en banc process is unlikely to create
uniformity in circuit law. When a panel in the Southern Division decides an
issue in a particular way, district courts in the other divisions, including those
in Northern California, are not bound by that decision and are free to decide
the issue as they please. Thus, parties and their counsel in those divisions have
no idea what the law is on that issue when they are making business decisions
or attempting to evaluate litigation. Only if a case in another division ends in
a final judgment, and a circuit court panel from another division decides the
issue in a different way -- which could be years later if ever -- would the issue
even be eligible for en banc review by the central en banc panel. And even
then the en banc panel need not take the case but has the discretion to decline to
address the conflict. Even worse, district courts in the third division still are
not bound unless the central en banc panel speaks. Moreover, the parties are
subjected to unacceptable extra costs by having to go through a double en banc
process -- once in the division and then again in the central en banc panel.
Why create such a procedure? The Commission concedes that an en
banc court of up to 18 judges will work, although it would prefer a smaller
number. Why not allow a real representative en banc court of 13 or 15 judges
from across the circuit to determine the law of the circuit? If the present en
banc procedures need to be improved, they should be. There are many
approaches that could be considered, including a change in the way the judges
are selected for that duty, or how many votes are required to take a case, or
how many judges sit, or for how long they sit. But a case has not been made
to scuttle the concept of an en banc court that can determine the law of the
circuit, including cases not yet creating an intra circuit conflict.
Finally, I would encourage the Commission to revisit its conclusion that
collegiality in an adjudicative unit depends on the ability of each sitting judge to
read all the unit's published opinions. This conclusion is, in turn, the sole
support the Commission provides for limiting the size of the adjudicative units
within the circuit. Yet, there is no evidence, and the Commission cites none,
that collegiality is affected in any way by the judges' ability to read published
opinions. Indeed, two other circuits -- the Seventh and Eighth -- have almost
as many published opinions per year as the Ninth (749, 795 and 813) and no
one is suggesting that collegiality is absent in those circuits. Respectfully, this
sort of speculative premise is not a sound basis on which to build such a
fundamental change in the structure of the circuit courts.
For the foregoing reasons, I urge the Commission to reconsider its
proposal. I do not see that the Commission has made a case for the structural
changes that it suggests or that the division structure it proposes will work
without a different stare decisis rule and a representative en banc court that can
speak for the circuit in all cases which meet the criteria in FRAP 35.
Very truly yours,
Peter W. Davis
