STATEMENT
of
JOANNE M. GARVEY
on behalf of the
AMERICAN BAR ASSOCIATION
before the
COMMISSION ON STRUCTURAL ALTERNATIVES FOR THE
FEDERAL COURTS OF APPEAL

San Francisco, California
May 29, 1998

Mr. Chairman and Members of the Commission:

Thank you for the opportunity to submit this statement and appear before you on behalf of the American Bar Association. President Jerome J. Shestack would have liked to present this testimony himself but could not do so due to a prior commitment. He asked me to testify in his stead because I am a member of the ABA Board of Governors, and because I practice law here in San Francisco and therefore have first-hand knowledge of how the Ninth Circuit functions on a day-to-day basis.

One of the primary goals of the American Bar Association is "to promote improvements in the administration of justice." It is therefore not surprising that the ABA has examined the issue of federal circuit restructuring on several occasions over the past twenty-five years. Our most recent review was prompted by the creation of this Commission by Congress. A distinguished ABA Working Group on Structural Alternatives for the Federal Courts was appointed earlier this year to examine whether structural change to the federal appellate court system now is needed in light of changed circumstances and increasing caseloads. Its members included Professor Charles Alan Wright, Lawrence J. Fox, John P. Frank and Jerome J. Shestack.

The Association's Board of Governors met in April and, based on the report and recommendations of the Working Group, adopted the following policy resolutions:

RESOLVED, That the American Bar Association opposes restructuring the Ninth Circuit Court of Appeals in view of the absence of compelling empirical evidence to demonstrate adjudicative or administrative dysfunction;

FURTHER RESOLVED, That the American Bar Association, based on compelling empirical evidence, does not support any other restructuring of the federal circuits at this time;

FURTHER RESOLVED, That the American Bar Association supports ongoing efforts by the federal circuit courts of appeal to utilize technological and procedural innovations in order to continue to enable them to handle increased caseloads efficiently while maintaining coherent, consistent law in the circuit.

The standard for circuit restructuring applied by the Working Group was first enunciated in the Proposed Long Range Plan for the Federal Courts, the final version of which was approved by the Judicial Conference of the United States in December 1995. The Association supported the Plan's recommendation regarding circuit restructuring and adopted it as policy in August 1995. It states:

Each court of appeals should comprise a number of judges sufficient to maintain access to and excellence of federal appellate justice. Circuit restructuring should occur only if compelling empirical evidence demonstrates adjudicative or administrative dysfunction in a court so that it cannot continue to deliver quality justice and coherent, consistent circuit law in the face of increasing workload.

This standard clearly embodies the principle that circuit restructuring is a "remedy" of last resort and should only be used if there is uncontrovertible evidence that justice is being denied to individual litigants and the integrity of law of the circuit is threatened. This very stringent standard is appropriate because circuit restructuring brings with it its own set of problems which may be temporary or may linger for years, often including substantial start-up expenses for new construction or renovation of existing facilities and for relocation of personnel and tangible property, administrative disruption and unpredicatility of case law in circuits whose boundaries are moved.

While we will return to this point, it is worth emphasizing at the outset that in our opinion, maintaining access to and excellence of federal appellate justice requires having a sufficient number judges to handle the workload in each circuit. Rising caseload growth, coupled with chronically high numbers of judicial vacancies, create unnecessary and undue stresses on our federal appellate system, and present a greater problem than circuit size. Circuit restructuring is not going to substantially reduce appellate filings or resolve the political problems contributing to the judicial vacancy backlog.

COURT COMPARISONS

A. Overall Volume

From 1992 to 1997, the total number of appeals in all the Courts of Appeal has been close to 50,000. In 1997, this figure was 52,319, an increase of 400 cases from 1996. In both 1993 and 1995, the total number of appeals was about 50,000. The major increase has been in prisoner cases, the number rising from 11,847 in 1992 to 16,188 in 1997. The number of cases pending in 1993 was 38,233 and in 1996 was 38,888. In 1997, that number was 39,899.

In short, the total appellate caseload for the past six years has been largely stable; exclude the prisoner cases, which do get expedited treatment, and the number of remaining cases is virtually identical between 1992 and 1997.

In terms of volume of cases, the smallest is the First Circuit with 1,475 cases and the largest is the Ninth with 8,649 in the year 1997. The percentage change in the number of filings between 1996 and 1997 for the numbered circuits (excluding the District of Columbia) has been from a reduction of 9.1% in the Third Circuit to an increase of 6.1% in the First Circuit; the Ninth Circuit has risen by 1.1%. The percentage change of pending cases in the same circuits between 1996 and 1997 is from a reduction of 5.4% in the Third Circuit to an increase of 22.1% in the Second Circuit. The Second Circuit is so badly crippled by vacancies that Chief Judge Winter has declared a judicial emergency, canceled calendars, and in the cases now being heard is using only one circuit judge and two judges either from the district courts or judges from other circuits. In short, the Second Circuit, because of the vacancies, is not now functioning as a circuit court of appeals due to the emergency. The percentage change of pending cases in the Ninth Circuit between 1996 and 1997 has been minus 1/10 of 1%.

The Ninth Circuit had ten vacancies during most of 1997 and currently still has seven. In consequence, its time from filing last brief to hearing or submission is 6.1 months. The average for all the circuits is four months, and the Sixth Circuit, the only one with a longer period than the Ninth Circuit, is 7.1 months for the 12 months ending December 31, 1997. However, once the cases have been submitted to the judges, the time from hearing to final disposition in 1997 for the Ninth Circuit was 1.6 months on the average ­ the third fastest in the nation; the Second Circuit was .6 month and the Third 1.5 months; the longest was the Tenth Circuit with three months. In cases which were submitted to final disposition, the Ninth Circuit had the shortest time period in the country, 1/10 of a month; the longest was the Third Circuit with 2.4 months, and the next was the Eleventh Circuit with two months.

On the number of appeals terminated on the merits after hearing in 1997, the Ninth Circuit disposed of 1,851 cases; the next largest number was the Fifth Circuit with 1,185 cases; and the smallest number was the Tenth Circuit with 416. After submission on briefs, the Ninth Circuit disposed of 2,988; the next highest was the Eleventh Circuit with 2,235; and the smallest number was the First Circuit with 386.

NINTH CIRCUIT

Since the White Commission is directed to give particular attention to the Ninth Circuit, some other details are presented here.

1. Reversals

There have been more cases from the Ninth Circuit to the Supreme Court than any other circuit in recent years. There have also been more cases decided by the Ninth Circuit in recent years than any other circuit. As set forth in the study by the Honorable Jerome Farris, a Ninth Circuit judge recently senior, in 1995 the Ninth Circuit decided 7,955 matters, in 1996 7,813, and in 1997 8,701. The percentage of reversals as against the total number of cases decided was 3/10 of 1%.

2. Number of Judges

The current allotment of judges to the Ninth Circuit is 28. Throughout 1997 there were only 18 active judges. Confirmations have been slow; the most recent confirmation, Judge Margaret McKeown of Perkins Coie of Seattle, the chief litigation counsel for the Boeing aircraft company, was pending three years. The nomination of Professor William Fletcher of the University of California Law School at Boalt Hall had been pending for four years before the Senate Judiciary Committe voted to approve his nomination last week.

Of the states in the present Ninth Circuit, the appeals coming from Alaska in 1997 were 137; from Arizona 643; from California 3,999; from Hawaii 190; Idaho 103; Nevada 442; Oregon 551; and from Washington 610. The remainder is from the territories, the bankruptcy panel, the tax court, the various administrative agencies, and some original proceedings. By far the largest number of cases comes from California, but the judgeships are spread throughout the circuit so that, under the various possible configurations for division of that circuit in relation to the number of cases, California would have too few judges and the other regions too many. In 1997, if the Circuit had the 28 judges prescribed by statute, the average number of filings per judgeship would have been 309, placing it toward the middle of the filings for the country. Since there were only 18 active judges, the filings per judge for 1997 were 481, which gave that circuit the largest number of any circuit in the country, except the Eleventh, which was 610.

EFFECT OF REALIGNMENT ON JUDGESHIPS

A measure passed by the Senate at the last Congress but rejected by the House created a circuit of California and Nevada, the remaining states to be in a Twelfth Circuit. That circuit would have 64% of the 1997 appeals. The California/Nevada region has ten active sitting judges, plus five vacancies, which historically have come from that area. The appeals per existing active judge at the end of 1997 would be 557; and if all judgeships were filled, the number would be 371. For the proposed new Twelfth Circuit consisting of Alaska, Arizona, Guam, Hawaii, Idaho, Montana, Northern Mariana Islands, Oregon, and Washington, there are nine authorized sitting judges, plus four historical vacancies. Appeals per existing active judge would be 342; and if the vacancies were filled, the number would be 237. To achieve an average number of cases, the number of judgeships for California would have to be increased and the number from the remaining states reduced.

Another proposed division is to create a new Ninth Circuit consisting of California, Hawaii, Guam, and the Northern Marianas. This would create a Twelfth Circuit, commonly referred to as the "string bean split," running from Arizona to Alaska. In that Ninth Circuit, the average number of appeals per existing active judge would be 591 and the number of appeals per judge if all judgeships were filled would be 409. In the new Twelfth Circuit, the average for existing active judge would be 302; and if all judgeships were filled, the average would be 222. In other words, there would be almost twice as many cases per judge in that new Ninth Circuit as in the string bean Twelfth Circuit per judge.

If a new Ninth Circuit included California, Arizona, Nevada, Guam, Hawaii and the Northern Marianas, and the new Twelfth Circuit included the Northwestern states of Alaska, Idaho, Montana, Oregon and Washington, the average appeals per existing judge in the Ninth Circuit would be 514 and the average appeals if all judgeships were filled would be 352. In the new Twelfth Circuit, the appeals per active judge would be 328 and the number of appeals if all judgeships were filled would be 218.

If California were divided and the new Ninth Circuit was Southern California and Arizona, with the new Twelfth Circuit being the remainder of the region, or if California remained a separate circuit by itself and the remaining states became a new circuit, the disproportion would be as severe as the examples just given.

Some suggestion has been made to put some of the Ninth Circuit states into the Tenth Circuit. The Tenth Circuit is so emphatically opposed to any such proposal that no figures for that contingency are included.

SPECIAL ASPECTS OF THE NINTH CIRCUIT

The Judicial Council of the Ninth Circuit has unanimously voted that division is undesirable. The Circuit and judges (active and senior) present at a court meeting to discuss this matter recently voted 19 to 4 that no division of the Circuit is desirable. The Fifth-Eleventh division was not adopted until the judges asked for it.

1. Under statutory authorization, the Ninth Circuit has adopted a limited en banc procedure, both to be certain that important questions can be decided by the Circuit generally and to avoid conflicting opinions among the panels. While conflicting decisions can be found among the various three-judge panels of the Circuit (and in other circuits as well), various studies have been made and none has found any significant number of conflicts.

2. Several hundred bankruptcy matters are heard by the Bankruptcy Appeals Panel. This system, which depends on having bankruptcy judges who are not from the states from which the cases arise, would not survive a division of the Circuit.

3. Over $100,000,000 has recently been expended to reconstruct the Ninth Circuit headquarters in San Francisco and to make it earthquake proof. Much of this would become waste if much of the Circuit stops use of the building. The Congressional Budget Office, in a December 19, 1995 report on one of the proposals, estimated an added space cost of "as much as $23,000,000," should the circuit be split.

4. The size of the Circuit has permitted efficient transfer of judges from one district to another as emergency situations arise.

5. The Circuit is well knit together by electronic communication devices.

The above factors support the proposition that there are no compelling reasons for restructuring the Ninth Circuit and provide persuasive reasons for not doing so.

VACANCIES

At the end of 1997, there were 86 judicial vacancies, more than ten percent of the federal judiciary. In his 1997 Year-End Report on the Federal Judiciary, , Chief Justice William Rehnquist exhorted that "vacancies cannot remain at such high levels without eroding the quality of justice." As of 5/15/98, 76 vacancies exist, even though 26 nominees have been confirmed so far this year. Unfortunately, the rate of confirmation is barely keeping up with attrition. Today there are seven vacancies on the Ninth Circuit alone and four in the Second Circuit. On March 24, 1998, Chief Judge Winter of the Second Circuit Court of Appeals declared a judicial emergency pursuant to 28 U.S.C. § 46(b), canceling some hearings altogether and authorizing other panels of three which included only one Second Circuit judge because the Circuit cannot function with its vacancies. The problems caused by the large number of vacancies are far more serious than any problems that may result from the size of circuits.

CONCLUSION

The Judicial Conference of the United States and the American Bar Association in 1995 endorsed the proposition that "[c]ircuit restructuring should occur only if compelling empirical evidence demonstrates adjudicative or administrative dysfunction in a court so that it cannot continue to deliver quality justice and coherent, consistent circuit law in the face of increasing workload." We do not find the existence of such dysfunction in the current arrangements. To the extent such dysfunction exists, it can be remedied by the prompt filling of vacancies and the improvement of internal procedures and processes of the circuits.