Commission on Structural Alternatives
for the
Federal Courts of Appeals

Chief Judge Terry J. Hatter, Jr.
United States District Court
Central District of California

For the public hearing,
San Francisco, California
May 29, 1998

Members of the Commission:

Thank you for the opportunity to address you. I am Terry J. Hatter, Jr., Chief Judge of the Central District of California. The Central District of California is the largest federal judicial district in the nation, with a population in excess of 17 million. This represents one-third of the entire population of the Ninth Circuit. One county within our district, San Bernardino, covers a geographic area sufficiently large enough to encompass the New England states - all of the First Circuit and part of the Second.

Our judicial compliment includes 27 active district judges (with several vacancies), 12 senior district judges, 20 magistrate judges (16 full-time and 4 part-time), as well as 21 bankruptcy judges. These 80 judicial officers greatly impact the work of the Ninth Circuit Court of Appeals. As Chief Judge, I represent the Central District, but I do not speak for each of its judicial officers. However, having solicited the views of my colleagues, certain positions of the judges are quite clear.

First of all, our judicial officers are knowledgeable concerning the mandate of your Commission. They are aware, as well, of the underlying political considerations of the congressional legislation that created the Commission. Second, given this understanding, only a few judges responded in writing to my request for comments regarding the Commission's mandate. From previous discussions with most of our judicial officers, district and magistrate, it is fair to say that there is almost universal opposition to the notion of splitting the Ninth Circuit. Our Chief Bankruptcy Judge, Geraldine Mund, who will testify in tandem with me, will provide you with her view of the potentially disastrous results of a breakup of this Circuit as it would effect the "Bankruptcy Capital" of the nation.

I submit that the reason most of our judicial officers have not bothered to comment in writing, even though opposed to a split of the Ninth Circuit, is the fatalistic view that the entire issue is driven, very simply, by blatant politics of the most parochial nature. I must say that I also subscribe to this opinion. Nevertheless, the result of such a view by so many of our judicial officers is that we remain opposed to a split, but if a split cannot be prevented, then the Commission should consider, certainly, keeping together in any new alignment those jurisdictions that follow the same state law.

Senior District Judge Harry Hupp of our court puts it quite well, as follows:

"It should leave California, Arizona, Nevada, Hawaii, Northern Marianas, and Guam in the Ninth Circuit. There is an historical legal and social reason for this far beyond immature screamings of a few senators about liberal California judges. The law of all of the above states is fundamentally based on California law and the code concepts it adopted in the l870's, and which still dominates our law. The courts of each of the other states look primarily to California law as guidance when their own decisions do not cover a point. And the commercial connections of each of the other states is in large part with California. Recognizing that such a circuit would still be the largest in the country, it would allow the five northwest states, which do not have common historical connections with California, to go their own way (although probably ending up as the smallest circuit in the country).

"I would be sorry to see this happen. All of us have gained by the opportunity to serve in such places as Spokane, Anchorage, Pocatello, and Billings and I think the circuit is better off for it. But, if dismemberment is inevitable, states with a like legal history should stay together in one circuit."

Another of our judicial officers, District Judge Dickran Tevrizian, has expressed the opinion that the Ninth Circuit should be broken up and realigned with other circuits or that a new circuit be created consisting of California, Hawaii, the Northern Marianas, and Guam. He did not elaborate. Yet another colleague, District Judge Consuelo Marshall, has suggested that Chief Judge Hug "Should take the position that the Ninth Circuit should not be split... ." She, however, feels that there should be a "fallback position evaluating the following factors: Costs, geography, caseloads, consistency in opinions, and similarities between state laws in the various states within the Ninth Circuit."

Senior Judge Hug has offered another point for consideration. The Central District of California is the Mother Lode for providing visiting judges to the other districts within the Ninth Circuit, and if California were removed there would be insufficient resources remaining to provide for visiting judges. He cites to the latest edition of the 9^th Circuit News, Spring, 1998, particularly chart #2, for confirmation.

I have read statements offered to the Commission by a large number of individuals representing many different views of the direction your recommendations should take. Of the statements read, two stand out for me, those of Professor Judith Resnik and Senior Circuit Judge Clifford Wallace of the Ninth Circuit. I endorse the findings, factors to be considered, and suggestions of both of these writers.

Let me be very clear, that while there is no unanimity of thought regarding the present or eventual structure for the federal courts of appeal among our judges, I can just as certainly report to you that there is unanimous agreement that California should not be split. Indeed, as you know well, there has been, almost from California's entry into the Union, debate among Californians about splitting the state into two, or, perhaps even three parts. These are California debates, and none of us would welcome having a split of our state imposed upon us from either within the Beltway or the great Northwest.

I want to conclude on a more positive note. While I personally believe, as does Judge Wallace, that the Ninth Circuit not only functions well but, actually, offers many creative and future preferred mechanisms for the best administration of justice at the federal appellate level, I still understand the political considerations that cloud the air at a time when the in depth study that Professor Resnik suggests should be taking place.

It is my hope that your Commission will, after due deliberation, agree that the Ninth Circuit functions quite well and, indeed, may be the beacon for circuit configuration in the 21^st century. By way of example, what other circuit has housed within it a charitable organization committed to improving the administration of justice and introducing new models for resolving conflict? Of course, I speak of the Western Justice Center Foundation, the brainchild of Senior Ninth Circuit Judge Dorothy Nelson. Judge Nelson chairs this innovative non-partisan, non-ideological research and development center housed on the grounds of the Ninth Circuit Court in Pasadena, California.

If the political clouds grow darker and a quick fix appears in order, let me suggest something that I have not heard considered. As you know, the Ninth Circuit presently has three separate geographic "units." Indeed, Commissioner Rymer is the Administrative Judge for the Southern Unit in Pasadena. Seattle is the Northern Unit site, while San Francisco is the headquarters for the Ninth Circuit and houses the Administrative Judge for the Central Unit, Chief Circuit Judge Emeritus James Browning. I propose that the units be converted to divisions by necessary congressional legislation. Of course, some minor geographical and administrative changes would have to be accomplished, but it would be cost effective - no additional cost - and is far superior to splitting the Circuit.

Venue rules could be established that would allow for cases in one division to be heard by judges resident in that division while still allowing the Chief Circuit Judge the flexibility to make inter-divisional assignments as needed. This, together with the other mechanisms already in place for managing the Circuit, makes this an attractive structural alternative for handling the political problem while, hopefully, a far more exhaustive study of the structure and operation of the entire federal appellate system can take place in an orderly fashion pursuant to more deliberate legislation.

I thank you, again, for this opportunity to address you on this simple political, and complicated judicial administration, problem.