STATEMENT OF THE LOS ANGELES

COUNTY BAR ASSOCIATION

BEFORE THE

COMMISSION ON STRUCTURAL ALTERNATIVES FOR

THE FEDERAL COURTS OF APPEALS

Public Hearing

May 29, 1998

1. Introduction

Justice White and Members of the Commission, I am honored to appear today on behalf of the Los Angeles County Bar Association (the "Association") to offer our perspectives on the critical issues pending before the Commission. I greatly appreciate the Commission’s willingness to afford our Association an opportunity to appear before you and comment.

The Association is the largest local, voluntary bar organization in the nation. We have more than 23,000 attorney-members. Our members are in all aspects of public and private practice, including civil and criminal litigation that covers the entire spectrum of substantive legal issues. Because the Association is situated in Los Angeles, the federal appellate practice of our members largely is before the Ninth Circuit Court of Appeals. Thus, we have for more than two decades followed with great interest various efforts to realign the Ninth Circuit and other circuit courts of appeal.

Throughout the past 20 years, our Association, like many other bar organizations in the Ninth Circuit, consistently has opposed proposals to change the geographic boundaries of the Ninth Circuit. In anticipation of this testimony today, however, our Association formed an ad hoc Committee to assist the Association in its consideration of the issue anew. My testimony today is based not only on our Association’s longstanding concerns and views, but also on our more recent reevaluation of these issues. Based on that analysis and input, we today present what we believe are certain basic principles that should guide any consideration of restructuring of the circuit courts of appeals in general or realignment of the Ninth Circuit in particular.⁽¹⁾

2. Circuit Boundaries Should Only Be Redrawn For Compelling Reasons

Some 25 years ago, the Commission on Revision of the Federal Court Appellate System (the "Hruska Commission") cautioned that any realignment of the courts of appeals should proceed with care: "[T]he present boundaries are largely the result of historical accident and do not satisfy such criteria as parity of caseloads and geographic compactness. But these boundaries have stood since the nineteenth century . . . . . . . Except for the most compelling reasons, we are reluctant to disturb institutions which have acquired not only the respect but also the loyalty of their constituents." Commission on Revision of the Federal Court Appellate System, The Geographic Boundaries of the Several Judicial Circuits: Recommendations for Change (Dec. 1973), reprinted in, 62 F.R.D. 223, 228 (1973). Similarly, the Hruska Commission concluded that "the greater the dislocation involved in any plan of realignment, the larger should be the countervailing benefit in terms of other criteria that justify the change." Id., 62 F.R.D. at 232. 

The views of experienced appellate practitioners in our Association provide little evidence that the current structure and performance of the Ninth Circuit satisfies these high standards for justifying change. Indeed, we have seen no concrete evidence or data reflecting serious problems, much less a "compelling" need for restructuring a respected institution that is viewed as performing its functions reasonably well.

Our view is consistent with that presented in Federal Judicial Center, Structural and Other Alternatives for the Federal Courts of Appeals, (1993). There, the Federal Judicial Center concluded that there was insufficient evidence to support a finding that the size of courts of appeals -- including the Ninth Circuit -- has resulted in an increased incidence of intracircuit conflict or a lack of collegiality among judges. See, id. at 94 ("there is little evidence that whatever intracircuit conflict exists is strongly correlated with circuit size"); see also Statement to the Commission by Hon. Carolyn Dineen King, 5 (Mar. 25, 1998) ("[T]he greatest challenge to collegiality results not from size but from the occasional judge who comes with a `take no prisoners’ attitude and may not respect the existing law, the views of other judges, the orderly process of change, or all the foregoing."). Accordingly, we strongly recommend that the Commission urge Congress to address any perceived deficiencies in the speed or manner in which appellate matters are handled in the Ninth Circuit by supporting full and adequate staffing and funding of the Court, rather than by embracing realignment, whose positive effects will be uncertain at best.

3. The Ninth Circuit Is Operating Reasonably Well, Even In the Face of Numerous Judicial Vacancies

We believe that underlying many recent proposals to realign the Ninth Circuit is the premise that it is too unwieldy -- geographically, in size of caseload, and in number of judges -- to manage its duties efficiently and effectively. The experience of many federal appellate practitioners represented by our organization, however, is to the contrary. We have seen no reliable evidence or data suggesting that the Ninth Circuit is not handling its docket efficiently.⁽²⁾ Our members report that the Ninth Circuit addresses cases in a reasonably timely and comprehensive manner. We do not, therefore, see a serious "problem" in need of a solution. Indeed, it is our impression that the efforts of the Circuit’s active and senior judges, coupled with its adoption of various administrative innovations, have enabled the Circuit to handle ably and efficiently its growing caseload in a reasonably timely and consistent fashion. These innovations include: the use of limited en banc panels to resolve intra-Circuit conflicts; the creation of an Appellate Commissioner to handle routine procedural matters; and sophisticated computerized issue tracking systems that link pending cases with related issues and send them to the same panel for decision.

To the extent that the Ninth Circuit is unable to resolve cases as quickly as some might desire, those delays are properly attributable to the large number of judicial vacancies on this Court, rather than to any inherent failing in the structure or alignment of the circuit courts of appeal. During 1997, one-third of the authorized judicial positions in the Ninth Circuit were vacant. Redrawing geographic boundaries simply cannot result in any significant, positive effect on the efficiency of the Court so long as the judicial vacancies remain and the resulting ratio of cases-per-judge continues at its present unduly high level. Significantly, the Ninth Circuit reported recently that "it ranks third highest in the country in merit terminations per active judge." Proctor Hug, Jr., "The Ninth Circuit Functions Well and Should Not Be Divided" (1998).

These views are consistent with those presented to Congress by former Ninth Circuit Chief Judge J. Clifford Wallace. In his "Statement Before the Senate Judiciary Committee," concerning proposed Senate Bill 956 (104 Cong. 1^st Sess. (June 22, 1995)), Chief Judge Wallace pointed out that the Ninth Circuit had terminated "two-fifths more" cases than seven years earlier with the same number of judges. He added that the Ninth Circuit decided submitted cases faster than all but one other circuit, but had delays in having matters sent to panels for argument and decision. As he summarized, "I need more judges to set more panels. Then I can overcome all unnecessary delay. But splitting the circuit will not decrease this delay. . . ." Chief Judge Wallace made similar points in his April 3, 1998 testimony before this Commission. There he emphasized that a large court, like the Ninth Circuit, does not necessarily result in a lack of collegiality among its members or a lack of stable and predictable judicial decisions. He also pointed out that the Ninth Circuit is reasonably efficient, and could be even more so were its judicial vacancies filled. Chief Judge Hatchett of the Eleventh Circuit made similar remarks in his March 23, 1998 testimony to you. He urged that the number of judges in that Circuit be increased from 12 to 15 in order to address the increase in the workload of that court during the past 17 years.

In short, any problems resulting from the growing appellate caseload in this and other circuit courts of appeals are best addressed by adequately staffing the appellate courts and filling the current judicial vacancies. This is a better solution than the disruptive and uncertain restructuring of the federal appellate system.

4. Central Principles to Guide Evaluation of Any Proposed Restructuring

As the Commission decides whether to endorse any form of restructuring of the federal appellate system, we recommend that you take into account several fundamental principles and concerns.

First, consistent with the longstanding notion that federal courts of appeals exist to foster reasonably uniform interpretations of federal law, regional parochialism should play no role in either structuring the federal circuit courts or in how these courts decide cases. Indeed, courts of appeals should be structured to encompass diverse populations, geography and interests, and a circuit court should in most instances consist of at least three states. The role of the courts of appeals should be, in the first and last instance, to interpret all issues of federal and state law faithfully and accurately -- not according to the assumed wishes of those living in any particular geographic region. Former Chief Justice Burger captured this thought years ago when he stated, "I find it a very offensive statement to be made that a United States Judge, having taken the oath of office, is going to be biased because of the economic condition of his own jurisdiction." Record, Aug. 2, 1991, S 12277.

Second, in no event should the restructuring of this or any other circuit result in the division of a single state such that different parts of the state are in different federal circuits. Over the years, various proposals have recommended the splitting of California between two circuits. Practitioners in our Association believe this would be a very poor outcome. Clients and practitioners -- whether public or private -- have a great interest in the uniform interpretation of California law. Decisions resolving issues of California law often are landmark rulings of far-reaching import. It would be impractical and confusing for clients and counsel alike to face the possibility of conflicting rulings on California law in different federal circuits covering different parts of our state. Because there would be no assurance of Supreme Court review, we would face the prospect of confusion over what law applies in our state for months or years at a time. And, forum-shopping could be encouraged.

The problems for institutional litigants such as California District Attorneys and California Attorneys General could be particularly acute; these litigants seek to establish consistent, uniform standards throughout California. Conflicting interpretation of California law could seriously impede such efforts. Similarly, commercial enterprises operating within California would be subject to potentially conflicting rules governing their operations or transactions in different parts of California. It is perhaps for these reasons that there is virtually no precedent for splitting one state between two federal circuits.

Fourth, administrative costs cannot be ignored and should be factored into any proposed realignment of the circuit courts. Accordingly, every effort should be made to avoid creation of a circuit with either noncontiguous states or more than one central administrative office. A restructuring of the Ninth Circuit is very likely to impose such costs.

Finally, the evaluation of realignment issues should be made independent of political concerns. The circuit courts are, in practical terms, the courts of last resort for an overwhelming majority of litigants. They must retain the confidence of their constituents and not be seen as creatures of partisan politics. Consequently, to the extent that new geographic boundaries are imposed because those in the legislative or executive branch believe this is an effective means to advance a partisan political agenda, the respect accorded the appellate courts will suffer. Appellate courts must be perceived as honest, independent institutions truly in search of "equal justice under law."

5. Conclusion

Practitioners have been well served over the years by the existence of an independent and high caliber federal appellate system that has worked to minimize the incidence of unwarranted, disparate interpretations of law. Proposals driven by any particular political or ideological agenda should not be honored. As recognized in the United States Judicial Council’s Long Range Plan for the Federal Courts (1995), "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." Id. at p. 44. It is the practical experience of our Association’s representatives that no such evidence exists.