STATEMENT OF
CHARLES E. WIGGINS
Senior U.S. Circuit Judge for the Ninth Circuit
Las Vegas, Nevada

COMMISSION ON STRUCTURAL ALTERNATIVES FOR THE
FEDERAL COURTS OF APPEALS

Public Hearing
May 29, 1998
San Francisco, California

I want to thank the Chairman and the members of this Commission for the opportunity to offer my testimony today.

My name is Charles E. Wiggins. I am a senior judge on the Ninth Circuit Court of Appeals. I am offering my testimony today as an individual. I am confident that I speak on behalf of an overwhelming majority of the current judges on the Ninth Circuit. However, only our Chief may speak for the Circuit and I don't intend to do so.

I am appearing today with a personal disability. I am losing my vision and I will be unable to read my prepared testimony to the Commission. I will summarize my prepared testimony and then respond to your questions.

I was appointed to the Circuit by President Reagan in 1984. Prior to that, I was an active practitioner in the Ninth Circuit since 1956. My practice was broken by service in the United States House of Representatives for a period of twelve years beginning in January, 1967. While in the Congress, I served on the House Judiciary Committee and was for a time the ranking member of the Courts' Subcommittee. During my term in Congress, I served on the Hruska Commission to study and to make recommendations concerning the geographic shape of the United States Court of Appeals, particularly the then Fifth Circuit and the Ninth Circuit.

I should like to begin my testimony by attempting to define the reasons why this controversy is before us.

The proponents for change argue that the Circuit is simply too big.

This proposition is simply not true. The Circuit has not grown significantly in size since it was created more than 100 years ago. At that time, the present states of Hawaii and Alaska were territories. At that time, the court was soon to exercise jurisdiction over the territory of the Philippine Islands. The proposition that the Circuit has grown too large is demonstrably false. It has not grown at all.

But the statement persists that the real issue is the growth in population rather than in physical size. It is true that the entire country has grown, requiring the appointment of new judges, particularly so in California. California contains approximately 65% of the total population of the Circuit. These statistical facts will not change in the future except to become more critical. The simple subdivision of the Circuit into lesser geographic units will not decrease the number of cases being generated in the present Ninth Circuit. By all expectations, those cases will continue to grow, unless the jurisdiction of the court is fundamentally altered.

If those who protest the population of California as a reason for their support of dividing the circuit are to be believed, they should propose to confront the issue directly and urge a repeal of the Treaty of Guadaloupe Hidalgo which brought California into the union.

The proposal to subdivide the circuit is simply no answer to the very real problems of all circuits in the country.

A frequent statement by those who advocate change is that the Circuit is dominated by liberal judges from California. I am a Californian and a member of the Ninth Circuit. And I can speak directly to this issue. It is simply not true. Nevertheless, this view is widely held outside of California. Those who believe it will go to any lengths to avoid alignment of their state with the State of California and its "liberal judges".

There are 17 active and senior judges who reside in California. Not more than five of them can be fairly characterized as liberals. They were all appointed by President Carter and all would continue to serve on the bench after a division. While there is the possibility that more liberals will be assigned to the bench to serve in California, there is an equal possibility that liberals would be assigned to the new circuit. If the proponents of change wish to concentrate the liberal judges in California, their mission is doomed to failure. The different judicial philosophies of judges is the price of giving appointing authority to the presidents -- a political branch of government. Judges typically serve much longer than the president who appoints them and over time, a reasonable balance will be achieved.

It is simply nonsensical to belabor the philosophical leanings of judges and to decide that the problem is worthy of destroying a major institution of government as the price of change.

Another reason often cited by proponents of change is that the Ninth Circuit is inordinately slow in deciding cases pending before it. When viewed over a reasonable period of time, the Ninth Circuit is not behind in its work. Others will comment more fully on this point.

To the extent that the Ninth Circuit may be at the bottom half of the ranking of circuits, it is only by a narrow margin, a few months. Those whom we serve -- the litigants and their lawyers -- are not complaining about this minor delay. It would be a tragedy to destroy a venerable institution of government which has served the nation well for over 100 years to save a few months of temporary delay.

At the bottom, those who propose a division of the Ninth Circuit have not met their burden of demonstrating that such a change would be in the national interest.

I have thus far focused on the shortcomings of the reasons supporting a change in the physical boundaries of the Ninth Circuit. I now wish to turn to the positive features of large circuits. Proponents urge a more localized court which would interpret local law more consistently with the views of local citizens. Such an expectation is contrary to the notion that the circuits are organizations to declare national law. There is one national law. It is enacted by Congress in Washington, D.C., and is signed into law by the President. It is the law of the land -- everywhere in the United States. The concept of regionalization is alien to our system of federal courts. To be sure, differences in interpreting the national law in different circuits exists, but the United States Supreme Court has the ultimate responsibility of unifying the federal law into one national law.

Such reorganization would likely increase the work of the United States Supreme Court in resolving conflicts.

What then is to be done? The volume of appeals pending in the circuits is going to increase immensely. It is not confined to the Ninth Circuit but exists throughout the country. To change the physical shape of the circuits will not solve this fundamental problem. If the present jurisdiction of the courts of appeal is unchanged, or, as is more likely, it grows, more judges will have to be appointed to accommodate a constantly increasing number of appeals. At some point, the crush of cases requiring resolution and the number of judges necessary to resolve them will require a major realignment of the jurisdiction of the circuit. It is my strong recommendation that you deal with this issue before the commission now and reject the simplistic proposals to divide the Ninth Circuit. You will begin a far more important task of dealing with the jurisdiction of the courts of appeals that holds out the promise of ultimate correction. I think that I can observe on the basis of personal experience that the Congress of the United States is politically ill-equipped to deal with fundamental changes of jurisdiction in the federal court system. If they were to undertake this task, I feel confident that they would simply add to the jurisdiction and add to the penalty structure for criminal cases. They would, in short, exacerbate the problem rather than solve it. However, I have observed that when sensitive matters must be discussed, Congress is capable of yielding authority to a blue ribbon commission and then accepting its recommendations notwithstanding the political posturing of many in Congress. If the issue of jurisdictional change is to be addressed, I feel confident that the way to approach it is to convene a distinguished body such as your own for the purposes of considering the issue.

It may be necessary for you to ask for an extension of time to deal with this matter. And you should not hesitate to ask Congress to extend the authority of the Commission should you be unable to resolve it within the time allotted.

You may wish to consider whether an automatic appeal to the courts of appeals is appropriate in all cases. Many appeals which clog our present circuits have had many reviews by administrative bodies and by the district court before they are presented to the circuits. It is almost an act of arrogance for circuits to decide that they see the true justice for the first time when many bodies have previously reviewed the facts. I do not necessarily recommend a particular course of conduct. I do recommend that you should undertake its study. There are a number of proposals that have previously been discussed which may merit your attention: whether the present system should be replaced by discretionary appeals to the circuit; whether certain classes of cases should be heard except in extraordinary circumstances by Article I appellate panels; and whether certain categories of cases should be removed from federal jurisdiction entirely.

This is the logical task of a Commission such as yours. Congress should accept the findings of its blue ribbon commission although it may be unable to make logical recommendations of its own.

Mr. Chairman, I have been concerned about the federal courts for nearly 30 years. Only within the last 15 years have I arrived at the conclusion that the jurisdiction of the circuits is too great to manage intelligently. I now appeal to you to step forward to begin progress toward the solution of this jurisdictional problem.

Before I invite your questions, I would like to address the issues raised by the Commission itself.

You have asked for brief comments of witnesses concerning what is right about the present configuration of the circuits, and what may be wrong about that configuration. Previous witnesses from other circuits have lauded the present boundaries and have stated, in essence, that they are doing very well, thank you. I will repeat the message. The Ninth Circuit is doing very well. I would hope that my colleagues in other circuits would be willing to draw on the lessons learned from the Ninth and consider consolidation into a larger circuit. For instance, the conversion may involve the consolidation of the Fourth and the D.C. Circuits.

The present innovations in the Ninth Circuit should be considered elsewhere. Voluntary authority should be given to adopt so-called mini en banc courts. The need is here, in the Fifth and Eleventh Circuits. Similarly, voluntary authority should exist calling upon our record with bankruptcy appellate panels and our experience with appellate commissioners.

What is wrong? If we continue without changing the jurisdiction of the courts of appeals, it is simply stated: too many cases; too few judges.

I now would be pleased to respond to your questions.