Commission on Structural Alternatives
for the Federal Courts of Appeals

Statement submitted by
Margaret Z. Johns
University of California, Davis, School of Law

for its public hearing
San Francisco, California
May 29, 1998

  1. Introduction

Thank you for inviting me to testify before the Commission. I have been privileged to serve the Ninth Circuit in several capacities including Chair of the Ninth Circuit District Rules Review Committee (1994-1997), Lawyer Representative to the Ninth Circuit Judicial Conference (1992-1994), and Coordinator of the Ninth Circuit Pro Bono Project for the Eastern District of California (1994 to present). I also serve as Director of the King Hall Civil Rights Clinic which has represented indigent plaintiffs in six Ninth Circuit appeals in the past five years. I hope that my experience will assist the Commission in evaluating the structure and alignment of the federal appellate system and especially the Ninth Circuit.

In my experience, the Ninth Circuit functions exceptionally well. The Ninth Circuit has tackled the problems posed by its large size and burgeoning caseload with successful innovations which have improved administrative efficiency and also ensured consistency, fairness, and due process. The Ninth Circuit has taken a leadership role in discharging its statutory obligation to ensure that district courts within the circuit adhere to procedures that guarantee national consistency, simplicity, and uniformity. Moreover, the Ninth Circuit has adopted a program for processing pro se litigation which improves efficiency by disposing of unmeritorious cases at an early stage while protecting the rights of pro se litigants through appointment of pro bono counsel in meritorious or complex cases. This statement will briefly outline these two programs which demonstrate the value of maintaining the Ninth Circuit as a laboratory for testing innovative approaches to judicial administration. They also illustrate the success of the Ninth Circuit in performing its federalizing function, in administering its docket efficiently, and in living up to the constitutional ideal of equal justice for all.

II. Ninth Circuit Review of District Local Rules

Under the Judicial Improvements and Access to Justice Act of 1988 (the Act), 28 U.S.C. Section 332(4), the judicial council of each circuit is required to review district court local rules for consistency with the federal rules. This section will review the legislative purpose of the Act and describe the Ninth Circuitís successful discharge of this statutory obligation. This project illustrates the capacity of the Ninth Circuit to perform its federalizing function over a vast geographic area by developing innovative solutions to national problems which can serve as a model for other circuits.

To understand the goals of the Act, it is helpful to briefly review the history of federal rulemaking. In 1938 the Federal Rules of Civil Procedure took effect. The purpose of adopting national rules was to ensure national consistency, simplicity, and uniformity. Over the next fifty years, district courts adopted thousands of local rules that undermined the primacy of the federal rules. In 1986, the United States Judicial Conference commissioned the Local Rules Project to study the proliferation of local rules. The Local Rules Project Report found that 5000 local rules and orders regulated federal civil practice and threatened consistency, simplicity, and uniformity. In 1988, the Act was adopted to reduce local procedural initiatives and to restore the primacy of the federal rules. The Act requires circuit judicial councils to evaluate periodically all local procedures for consistency with the federal rules and authorizes them to modify or abrogate conflicting procedures. 28 U.S.C. 332(d)(4). In 1995, Fed. R. Civ. P. 83 was amended to require that local rules be consistent with both the federal rules and acts of Congress and to provide that local rules may not duplicate federal law. As the notes to Rule 83 explain, the judicial council review should be conducted "with an eye toward determining whether [the local rules] are valid and consistent with the Federal Rules, promote inter-district uniformity and efficiency, and do not undermine the basic objectives of the Federal Rules." Because the task of review is onerous and because no funding is provided, few circuits have undertaken the statutorily mandated review of district local rules.

The Ninth Circuit Judicial Council delegated this statutory responsibility to the Conference of Chief District Judges, a creation of the Council. The Conference meets regularly to address common concerns and questions facing the district courts. The creation of the Conference is another example of the Ninth Circuitís innovative responses to the challenges of geography and size. Through these regular meetings, the Conference furthers inter-district consistency and fosters circuit-wide collegiality. The Conference appointed a committee drawn from across the breadth of the circuit: Chief Judge Robert Coyle, Eastern District of California; Chief Judge Michael Hogan, District of Oregon; Chief Judge Alan Kay, District of Hawaii; Thomas McDermott, Chair of the Ninth Circuit Lawyer Representatives; Professor Carl Tobias, University of Montana, School of Law. I was honored to serve as chair of this committee.

With the assistance of volunteer reviewers in each of the fifteen districts within the circuit, the committee performed a comprehensive review of all local civil, criminal, and admiralty rules. The preliminary review was then sent to the relevant district court for comment. The response to these reviews was extraordinary Ė the district courts voluntarily agreed to revise most of the rules identified as inconsistent or duplicative in order to comply with the mandates of the Act and Fed. R. Civ. P. 83. In other instances, the districts explained their interpretations of the local rules to establish their consistency with the federal rules. After receiving the comments from the district courts, the committee made recommendations to the Judicial Council. These recommendations included the adoption of some circuit-wide model rules and policies. The committee also proposed that the Council support amendments to a small number of federal rules. The Judicial Council adopted the committee recommendations for promulgating model rules and policies and for supporting amendments to the federal rules.

This project illustrates one of the many ways in which the Ninth Circuit has developed innovative responses to the challenges of size and diversity. It also demonstrates the ability of a large circuit to achieve consistency, uniformity, and simplicity over a wide geographic area for the benefit of all the litigants in all the circuitís districts. Finally, this project underscores the often-ignored fact that circuits within the federal system have obligations beyond the processing of appeals that significantly influence the administration of justice in the bankruptcy and district courts where most disputes are litigated and resolved.

III. Ninth Circuit Administration of Pro Se Litigation

Throughout the federal courts, pro se litigation challenges fair and efficient judicial administration. Historically, in the Ninth Circuit approximately one-third of all new appeals have at least one party who is proceeding pro se. Through its case weighting system, utilization of staff attorneys, and pro bono project, the Ninth Circuit has developed a system for processing these cases which ensures efficiency, fairness, and due process.

The first stage in the administration of pro se cases is an initial review for jurisdictional defects. This screening permits the court to dismiss cases lacking jurisdiction at the earliest possible point and with a minimum expenditure of judicial resources. The staff attorneys then weigh the remaining cases according to the courtís inventory weighting system. The cases assigned a one-weight or three-weight are processed on the merits by staff attorneys through presentation to oral screening panels.

The remaining pro se appeals, which have been assigned a five-weight in the inventory system, are reviewed by the courtís pro bono coordinator to determine whether counsel should be appointed. Civil appeals (including habeas corpus cases) presenting issues of first impression, complex issues of fact or law, or raising apparently meritorious claims are selected for inclusion in the program. In addition to these cases, if on further review a three-weight case appears to need more extensive briefing or argument, a staff attorney or screening panel may refer it to the coordinator. Cases included in the program present a broad range of issues. Many involve prisoner civil rights or habeas corpus actions. But many others involve employment, bankruptcy, social security, discrimination, immigration, Indian rights, contracts, and civil forfeiture.

When the court coordinator determines that counsel should be appointed, the case is referred to the volunteer district coordinator for the district in which the case was filed. The district coordinators recruit volunteer attorneys for the program, maintain the current list of volunteers, and locate counsel to accept appointment when a case is referred. The Ninth Circuit Lawyer Representatives have made a commitment to participating in the program and sponsored a resolution adopted by the Ninth Circuit Judicial Conference urging participation in the program by the private bar. In addition, the Ninth Circuit has adopted a circuit rule for the participation of certified law students supervised by an attorney admitted to the court. Under this rule, law school clinics are eligible for appointment.

The courtís coordinator forwards the briefs and excerpts of the record which the district coordinator uses to locate pro bono counsel. The district coordinator locates pro bono counsel to handle the appeal and works with counsel to ensure that the case is handled efficiently throughout the appellate process. The courtís coordinator then processes a clerkís order appointing the attorney as counsel of record subject to the objection of the pro se litigant. A supplemental briefing schedule is then ordered. The court has committed to hearing oral argument in all cases in which pro bono counsel has been appointed.

My experience with the Ninth Circuitís system for administering pro se cases has been extremely positive. As volunteer coordinator for the Eastern District of California, I have been impressed by the thoughtful selection of cases for the program which have included civil rights actions, aboriginal land claims, and civil forfeiture proceedings. The attorneys whom I recruited to accept pro bono appointment have been impressed by the courtís cooperation in scheduling matters and willingness to hear oral argument which was promptly set. Moreover, the appeals were all resolved expeditiously following oral argument.

As Director of the King Hall Civil Rights Clinic, I have seen first-hand the efficient administration of this program and fair resolution of cases included in the program. While we have not prevailed in every case, we have found the court to be conscientious and thorough. Our cases have been processed and resolved expeditiously. We have been afforded oral argument in every case and it was evident that the bench was well prepared and thoughtful in its approach to the issues presented. My disappointment with some of the rulings does not blind me to the reality that through this program the court has demonstrated its dedication to the principle of equal justice under law.

This commitment to efficient yet fair administration of pro se litigation is also reflected in the educational programs the Ninth Circuit has developed for staff attorneys throughout the circuit. Staff attorneys at both the district and circuit level are necessary to efficiently administer the pro se caseload. But the need for administrative efficiency cannot be used to justify running roughshod over rights of the poor and unrepresented. The Ninth Circuit has adopted significant measures to ensure that these staff attorneys are sensitive to the developing issues and protective of constitutional safeguards. The circuit has sponsored annual staff attorney conferences which include programs in developing areas of the law by scholars in the field. For example, the program on habeas corpus litigation is presented by Professor Erwin Chemerinsky. In addition, the conferences ensure that staff attorneys at all courts within the circuit are evaluating cases consistently and are aware of precedents being handed down from the court of appeals and in the many district courts. At the conferences, the staff attorneys also share procedures and innovations for the fair and efficient administration of the pro se docket.

In short, the Ninth Circuit has developed a comprehensive system for the processing of pro se litigation. Through its use of staff attorneys to screen, weigh, and process cases, the circuit efficiently disposes of appeals which do not merit significant investment of judicial resources because of the lack of jurisdiction or the simplicity of the issues presented for review. Through its pro bono project, the circuit ensures that complex and meritorious pro se appeals are thoroughly briefed and argued by competent counsel. Through its educational programs, the circuit ensures that the staff attorneys on both the district court and circuit court levels will be sensitive to developing area of the law, knowledgeable about precedent within the circuit, and informed of the best administrative approaches for processing pro se litigation.

  1. Conclusion

Many thoughtful judges, scholars, and practitioners have commented on the questions to be evaluated by this Commission. The debate has often focused on the size of the Ninth Circuit and the advisability of splitting it into two smaller circuits. In my experience, the size of the Ninth Circuit is a positive factor promoting consistency in the federal courts over a vast geographic area and generating administrative innovations that improve both the efficiency and the quality of justice in the courts. In this I echo the views of Chief Judge Procter Hug, Jr., former Chief Judge J. Clifford Wallace, former Chief Judge James Browning, Professor Thomas E. Baker, Professor Arthur D. Hellman, and Professor Carl Tobias. The two projects discussed in this statement are offered as concrete examples of the advantages of the Ninth Circuitís experimentation in judicial administration. The District Local Rules Review achieved a markedly improved degree of consistency in local procedures in compliance with the Judicial Improvements Act of 1988 to the benefit of all litigants throughout the Ninth Circuit. The Ninth Circuit Pro Bono Project has improved the efficiency of processing pro se cases while at the same time ensuring that complex and meritorious cases receive competent representation and meaningful review. Because of its size and tradition of innovation, the Ninth Circuit serves as a national laboratory for developing procedures to address the challenges confronting the federal appellate system.

Thank you.