Los Angeles  County
Bar Association

(213) 617-6512
lee_edmon@deweyballantine.com

November 3, 1998

Dear Justice White:

In response to the Commission's invitation, attached are the Los Angeles County Bar Association's comments to the Tentative Draft Report of the Commission on Structural Alternatives for the Federal Courts of Appeals. This cover letter and the comment document are being submitted by electronic mail in accordance with the instructions contained in the Tentative Draft Report and on the Commission's website. Hard copies will simultaneously be sent via United States mail, with computer diskette, in the event the electronic mail cannot be opened or read for any reason.

Very truly yours,

Attachment

COMMENTS OF THE

LOS ANGELES COUNTY BAR ASSOCIATION

ON THE TENTATIVE DRAFT REPORT OF THE COMMISSION ON

STRUCTURAL ALTERNATIVES FOR THE FEDERAL COURTS OF APPEALS

The Officers and Trustees of the Los Angeles County Bar Association (the "Association") submit these comments in response to the October 1998 Tentative Draft Report ("Draft Report") issued by the Commission on Structural Alternatives. The Association requests that the Commission consider these comments as it prepares its final report. We appreciate the Commission’s willingness to solicit the views of litigants and consumers of the appellate system as it formulates its final recommendations to Congress.

We commend the Commission on its thorough examination of the structure -- both past and present -- of the federal appellate court system. We applaud the Commission’s willingness to consider and propose creative solutions to issues raised by the burgeoning federal appellate caseload. We agree with many of the observations and conclusions in the Draft Report. And, we hope that this high-level discussion will frame the ongoing dialogue over the structure of the federal appellate courts.

As a representative of many private and public consumers of judicial services in the Ninth Circuit, we do, however, register our fundamental disagreement with the proposed restructuring of the Ninth Circuit into divisions. We believe this so-called "divisional arrangement" will present many, if not all, of the difficulties that the Commission acknowledges would accompany a split of the Circuit. Indeed, as we explain below, we see the proposed divisional structure as a de facto split of the Circuit that would, in effect, split California. Yet, the notion of splitting California is the very option that the Draft Report calls "undesirable." Draft Report at 46. We believe this same concern applies with equal force to the proposed division of any state. For all these reasons, we urge the Commission to revisit the advisability and feasibility of the recommended divisional arrangement in the Ninth Circuit.

In the Association’s May 29, 1998 testimony and statement (the "May Statement"), we set forth the view that the boundaries of any of the circuit courts should be redrawn only for compelling reasons, and that no such reasons exist as to the Ninth Circuit. We were heartened to see that the Commission’s report echoes these conclusions. In particular, the Commission’s analysis of the more frequently proposed options for splitting this Circuit demonstrates effectively the problems associated with any attempt to disturb an appellate court that is functioning well even in the face of substantial judicial vacancies. We urge the Commission to adhere to the recommendation in the Draft Report that the Ninth Circuit not be divided.

Practitioners in our Association, many of whom advise clients -- both public and private -- about issues of California law, have grave concerns about any proposal that could lead to disparate interpretations of, or uncertainty about, California law. Decisions resolving issues of California law

form the bedrock of our practitioners’ ability to advise statewide clients on many issues. As emphasized in our May Statement, any changes to the structure of the Ninth Circuit that has such results would be very problematic. The same adverse effect would apply to institutional litigants, such as the California District Attorneys and Attorneys General, and to commercial enterprises that conduct business, regulate employees and workplace issues, and structure transactions on a statewide basis. Thus, it is not surprising that there is virtually no precedent for splitting one state between two federal circuits.

Although the Draft Report acknowledges the problems associated with assigning California to two different Circuits, it fails to recognize that the proposed divisional arrangement will have the same result in many respects. The contemplated creation of a Circuit en banc court to resolve conflicts among divisions can serve to reconcile obvious different interpretations of California law; more subtle differences may go uncorrected. More importantly, however, the proposed structure will impose delays and add expenses and uncertainty in the resolution of cases involving interpretation of state law. Indeed, cases most in need of speedy resolution, such as litigation over the validity of statewide initiatives or appeals regarding the constitutionality of state law, could linger in the system for years under a process that requires both divisional and Circuit en banc review to resolve conflicting interpretations of state law. Moreover, this proposal will also create the potential for problematic, division-to-division forum-shopping where differences in state law already have appeared or appear likely to occur based on the existing decisions of each division.

For all these reasons, we urge the Commission to revisit the advisability of splitting California. These same concerns apply with equal force to the proposed splitting of any state. Whether the adjudicative units are Circuits or "divisions," we see little real difference.

The Commission and other proponents of the division concept have identified various concerns that they sought to address in the proposed creation of divisions: the excessive workload of Ninth Circuit judges; the desire for regionally-based decision making; the need for greater collegiality; improving the predictability and consistency of Ninth Circuit adjudications; and improving the frequency, efficacy and credibility of en banc procedures. We question whether any of these objectives will be furthered were the proposed divisional realignment adopted.

The Commission observes that Ninth Circuit judges, already overloaded with the demands resulting from an understaffed Circuit, currently are required to keep abreast of a large body of published decisions. The recommended creation of smaller decisional units stems, in part, from a desire to reduce the volume of cases circuit judges would need to monitor to the decisions of their respective divisions.

Our concern with this analysis is that it assumes that Ninth Circuit judges will no longer wish or need to keep abreast of the law of all divisions in the Circuit. In that the proposed divisional arrangement would require judges to shift divisions on a periodic basis, it is unlikely that judges in the Circuit will deem it advisable to disregard the development of the law in other divisions. Moreover, judges in the Circuit will need to be aware of interdivisional conflicts as they develop -- thereby requiring Circuit en banc review -- and will also be asked to look to decisions of other divisions for "persuasive" value. Accordingly, the divisional structure is not likely to reduce substantially the volume of opinions that judges will review; their workload in this respect will remain largely the same. As we observed in our May Statement, rather than seek to restructure the Ninth Circuit, problems associated with under-staffing and excessive workload in the Circuit are more appropriately remedied by filling the current judicial vacancies and revisiting the need for additional judicial allocations to this body.

We continue to question whether regionally-based decision making is consistent with the notion of federal courts of appeals and the desire for a reasonably uniform, national interpretation of federal law. But, even if one accepts decision-making with greater sensitivity to regional concerns as a positive, the proposed divisional arrangement would not serve to promote that goal.

As proposed, divisions would consist of a share of judges who "float" on a periodic basis.  Thus, with three-judge panels binding a division, the rule of law for a particular region of the Circuit could be made by judges with no geographic tie to that area. Moreover, with no right to Circuit en banc review of significant decisions or decisions in conflict with other circuits -- only interdivisional conflicts make their way to the Circuit en banc -- particular judges from a region who hold strong views about certain regionally-based issues or concerns may never have an opportunity to participate in shaping that rule of law.

The notion that a divisional arrangement promotes collegiality or more effective decision-making appears to stem from the premise that a smaller group forced to make decisions together on a frequent basis -- even though they are geographically spread -- will be more likely to operate over time in a stable and effective manner. We question this premise.

There are many notable examples in our current judicial system of smaller decisional units where relations among judicial colleagues may not be "collegial." Indeed, judges who have sat in smaller adjudicative units report that when judges with differing ideologies are required to sit in a static group over time, views tend to harden and tense relations result. To the extent that the primary aim of a judicial system can and should be to maximize the ability of a group of judges carefully and deliberately to interpret the law, a constant exchange and flow of ideas -- as achieved under the current Circuit/panel system -- is the preferable approach.

We also question the notion that the divisional arrangement provides litigants with a greater sense of predictability by creating a smaller pool of judges from which a panel would be selected. In that divisions could change on a yearly basis and very few appeals reach fruition in under a year, litigants face the same uncertainty over the likely decision-makers in their particular cases. In addition, even within a division, the three-judge panel selected may make a vast difference in the outcome of a given case. Thus, divisions are unlikely to alleviate the uncertainty faced by litigants.

The Draft Report asserts that dissatisfaction has arisen regarding the infrequency of the Ninth Circuit’s use of en banc rehearing and the size, credibility, and composition of the current limited en banc court. The divisional arrangement does not alleviate these concerns.

Under the proposal, in cases involving divisional conflicts, the law of the Circuit would be crafted by an even smaller share of Circuit judges; indeed, a majority of four judges on the Circuit en banc court could bind the entire Circuit even where a full divisional en banc court of 7 to 11 judges had adopted a contrary rule of law. This does not assure greater credibility or a larger representation of judicial voices in critical cases.

Nor does the proposal assure any greater frequency of en banc rehearing. As to divisional en banc grants, a party would face the nearly impossible task of convincing a majority of judges in a 7 to 11 member division -- three of whom participated in the decision, and at least two of whom embraced the rule of law under attack -- that the decision is in error. Circuit en banc review would be even more difficult to achieve in that it would be limited to divisional conflicts. Thus, it could not be used to review the more common scenario where a panel adopts an approach at odds with other circuit courts of appeals, but a conflict between or among divisions has not yet occurred. Litigants would be left with only the Supreme Court -- with its restricted docket -- as recourse in those cases. Moreover, to inject the added cost and delay in requesting Supreme Court review would present a severe disadvantage to many litigants, particularly those with limited resources.

In lieu of the proposed restructuring, we would urge the Ninth Circuit both to experiment with enlarging the composition of the limited en banc court and to be more willing to consider en banc review of significant cases. It is our understanding that the Circuit has been sensitized to and currently is contemplating these suggestions.

In addition to its questionable efficacy, we believe that the division proposal would give rise to a variety of new problems and concerns.

The proposal would require certain Circuit judges assigned to divisions outside of their geographic area to spend a year or more traveling from their local chambers to some other part of the Circuit for a monthly oral argument calendar. Those judges who urged a split of the Ninth Circuit stressed the inconvenience of even occasional travel from some of the less centralized geographic areas. This proposal would compound those problems. In addition, the creation of divisions necessarily would result in additional administrative costs and duplication of administrative efforts.

By splitting California into two divisions, the proposal invites inconsistent interpretation of California law. As noted above, conflicting interpretation of state laws, especially as to the constitutionality of voter-approved statewide initiatives, could result in substantial uncertainty. Nor would there be any guarantee of quick or certain Supreme Court resolution of these issues. Instead, these cases could require years to resolve under a process with the requisite added layer of Circuit en banc review following divisional en banc review.

The existence of different divisions could also encourage forum shopping by those seeking to assure a more favorable audience to adjudicate questions of state law. Similarly, it could give rise to delaying tactics on appeal in an effort to await the periodic changing of the guard in a division viewed as unfavorable to a litigant’s position.

The proposed system would also create undue confusion and an additional burden for lawyers who would now be required to master multiple bodies of law -- the law of a division (binding), the law of other divisions (persuasive only, but must be examined for inter-divisional conflicts), the law of the Circuit en banc (binding), the law of other Circuits, and Supreme Court authority.

We applaud the Commission's opposition to the split of the Ninth Circuit and its willingness to consider creative vehicles for improving the operation of all courts of appeals. We question, however, the wisdom of the proposed statutorily mandated creation of divisions, as set forth in the Draft Report. If the Commission elects to adhere to a proposal including any divisional arrangement, we urge that the Commission develop a model that, at a minimum, does not include the splitting of any state, an intermediate en banc review process, or the issuance of panel opinions that do not serve as precedent for an entire circuit. Instead, we urge that the Commission and others continue to analyze the notion of divisional calendaring, and afford the Ninth Circuit the flexibility and opportunity to continue to experiment with methods to improve its operations in the coming years.