Testimony
Daniel M. Kolkey
Legal Affairs Secretary to California Governor Pete Wilson
Before the Hearings of the Commission on Structural
Alternatives for the Federal Courts of Appeals
May 29, 1998
San Francisco, California
My name is Daniel Kolkey. I serve as Legal Affairs Secretary and Counsel to Governor
Pete Wilson and speak to the Commission today on his behalf. Prior to serving in my present
position, I was a partner with the law firm of Gibson, Dunn & Crutcher, where I specialized in
civil litigation in both the federal and state courts.
Any recommendations by this Commission concerning the structure and alignment of the
federal appellate system should be tested against the standard whether they promote two principal
objectives, which are increasingly in tension with one another: The ability of the system to render
(1) reasonably timely decisions and (2) analytically consistent and carefully considered decisions.
In the face of an increasing federal caseload, generating timely decisions either requires more
judges which can adversely affect the uniformity and analytic consistency of the resulting
decisions or demands that less time be allotted to each case which may affect the quality and
thoroughness of the decisions.
Governor Wilson believes that these two, sometimes competing objectives cannot be
achieved through a split of the Ninth Circuit or through a further increase in the number of judicial
circuits. An increase in circuits will only lead to inter-circuit conflicts which previously arose
within a single circuit and which were resolved through the circuit's en banc procedures. Hence,
a split of the Ninth Circuit will not promote more uniform, consistent decisions within the area
that the Ninth Circuit serves, but will simply generate new conflicts among appellate cases in the
two resulting circuits. Nor will a split of the Ninth Circuit expedite the processing of cases
unless more judges are added, which, in turn, will affect the uniformity and analytic consistency of
the decisions rendered by that larger number of judges. Accordingly, the Governor believes that
effective reforms must instead directly address (1) the increasing caseload and (2) the means to
promote analytically consistent decisions within a larger circuit.
I will discuss four topics: (1) the reasons that an increasing appellate caseload does not justify an increase in circuits, (2) reforms which can address the increasing caseload, (3) steps that can promote analytically consistent decisions within the existing circuits, and (4) the reasons why a division of the Ninth Circuit would not promote these objectives, but would instead adversely affect the cause of justice on the West Coast.
I. An Increasing Appellate Caseload Does Not Justify An Increase in Circuits
In 1995, the "Long Range Plan for the Federal Courts," approved by the Judicial
Conference of the United States, projected that if civil and criminal jurisdiction were to expand at
the same rate that they had over the preceding 53 years, by the year 2020 the federal courts of
appeals would be overwhelmed with 334,800 appeals, or over 600% of their current number of
filings. Of course, that projection assumes the continuation of the current rate of expansion
which can be reversed.
We submit that an increasing caseload does not itself justify further dividing the federal
circuits. After all, despite an increasing caseload, the current structure of judicial circuits has
endured since 1866, with only three modifications since that time.(1) Indeed, the current structure
has endured, although in the last 35 years, appeals filed in the federal courts of appeals (excluding
the Federal Circuit and its predecessors) dramatically rose from 3,899 in 1960 to 49,671 in 1995.(2)
Increasing the number of circuits will not only fail to expedite the processing of cases (unless the
number of judges is also increased), but will negatively affect the pursuit of justice for at least the
following reasons:
1) The fragmentation of our currently defined circuits into an increased number of
circuits reduces the geographic diversity of the judges in a circuit, increasing the risks
of parochialism and reducing the objectivity that a broader perspective engenders.
2) Fragmentation can lead to the application of different case law to parties who work in
a single geographic region, thereby undermining the predictability of the law.
3) An increase in circuits leads to additional inter-circuit conflicts, which places an
additional burden on the U.S. Supreme Court.
4) Fragmentation of the federal appellate system into more circuits may speed the
issuance of decisions if more judges are added to the system. But an increase in judges
can result in less uniform and less analytically consistent decisions.
Accordingly, the Governor endorses the sensible statement contained in the 1995 Judicial
Conference's Long Range Plan, which states:
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.(3)
This statement implicitly and soundly rejects the proposition that there ought to be a cap on a
circuit's size so as to require a split of larger circuits.
II. Addressing the Increasing Caseload
There are a number of ways to address the increasing appellate caseload without splitting
the existing circuits, the most obvious of which is to reduce the rate of increase of appeals. And
significantly, that does not necessarily require a reduction in appeals, only a reduction in the
number of appeals decided by the courts. There are several ways to accomplish this:
A. Appellate-Level Mediation Conducted by Senior Judges
In recent years, appellate courts have been experimenting with settlement conferences.
(See Rule 33, Fed. R. App. Pro.) However, settlement efforts could be more effective if they
applied the following ADR techniques: First, mediation, rather than settlement conferences, has
increasingly proven itself to be a much more effective ADR tool and should be utilized more.
Second, mediation will be more effective if the courts use senior judges or professional mediators,
rather than attorneys. Third, the timing of the mediation is critical to its success. There are times
in the life of a case when mediation has better prospects than others. Some circuits schedule their
settlement conferences within two months of docketing the appeal,(4) but that is not the time when
the parties are focused on their case, let alone the strengths and weaknesses of their case. The
Governor suggests that mediation of certain classes of civil litigation be required or strongly
encouraged immediately following the filing of the appellant's opening brief. This would have a number of
advantages:
1) It is at this point that the appellant becomes intimately familiar with the strengths and
weaknesses of his or her case, having just completed the opening brief.
2) It is at this point that the appellee has an incentive to settle: He or she can avoid the
cost and the preparation of a full brief if the case is settled.
3) Settlement during briefing and before oral argument saves the greatest amount of
judicial resources. Indeed, the Federal Judicial Center observed in 1993 that it may be
more fruitful "to focus delay reduction efforts on the period between when an appeal is
filed and when it is submitted to a three judge panel for decision."(5)
4) Parties may be more persuaded to voluntarily resolve their disputes when offered a
candid assessment of their case by an Article III judge who has insights into how
similar cases are decided by his or her colleagues.(6) The use of senior judges would in
no way create judicial disqualification problems since simple measures could be taken
to keep the mediating judge out of the pool of eligible judges for the assignment of the
case and since senior judges do not participate in any subsequent vote concerning en
banc review.
5) Even if the case does not settle, by beginning the mediation process after an
appellant's opening brief has been filed, the mediation can help focus the parties'
arguments for purposes of the preparation of appellee's brief and the appellant's reply,
improving the quality of the arguments to the court.
B. Codifying And Clarifying Judicial Abstention Doctrines Can Reduce Resort To
The Federal Courts
Another means of reducing the federal caseload while simultaneously strengthening
federalism and encouraging comity is the clarification and codification (through statute or
federal rules) of the various and occasionally misapplied judicial abstention doctrines.
All too often, multiple proceedings are brought in state and federal courts over the same
matter. This was the case in the litigation arising out of California's Proposition 187, which was
simultaneously brought in both state and federal courts and ultimately decided by the federal
district court. See League of United Latin American Citizens v. Wilson, 1998 WL 141325
(C.D.Cal 1998) (on appeal). Consider, too, Arizonans for Official English v. Arizona, 520 U.S.
43 (1997), in which the U.S. Supreme Court ruled that the district and circuit courts had given
insufficient consideration to requests for certification of a state law question concerning the scope
of the state constitutional provision in issue. The Supreme Court warned against premature
adjudication of constitutional questions arising out of the construction of a state law not yet
reviewed by the State's highest court. Following reversal by the U.S. Supreme Court, the
Arizona Supreme Court rendered a definitive ruling invalidating the state constitutional measure,
with the result that the nine years of federal litigation turned out to be a nullity.(7) Again, recently,
in Delta Dental Plan of California v. Mendoza, 1998 WL 136211 (9th Cir. 1998), the Ninth Circuit ruled that a
district court had improperly exercised jurisdiction over a matter that was already the subject of state
administrative proceedings and ordered the dismissal of the federal proceedings pursuant to the abstention doctrine
under Younger v. Harris, 401 U.S. 37 (1971).
Federal resources would be conserved, and federalism and comity respected, by a
codification and clarification of some or all of the abstention doctrines. Codification would
provide clearer direction to the federal courts and encourage the application of these doctrines.
A brief overview should suffice to show how codification will clarify and encourage the proper
application of these doctrines:
"Pullman abstention" is invoked where a state court clarification of an uncertain
state law may render a federal law ruling unnecessary. Yet, the doctrine has given rise to uncertainty
regarding the circumstances under which the doctrine may be properly invoked and regarding whether it
is mandatory or discretionary.
"Younger abstention" applies to avoid federal judicial interference with ongoing
state proceedings which implicate important state interests and which provide
an adequate opportunity to raise federal questions. Codification might avoid
confusion over the elements of the doctrine, such as whether, inter alia,
the state proceedings must be ongoing at the time the federal suit is brought.(8)
"Burford abstention" invoked in deference to complex state administrative
proceedings is an area in which "lower courts continue to disagree,"(9)
according to one commentator, and could be brought into conformance by statutory
codification.
"Colorado River abstention" under which courts may in the interests
of judicial administration dismiss federal proceedings owing to the presence
of concurrent state proceedings and "Thibodaux abstention" which
may be invoked in diversity cases involving important state interests that implicate
the state government's sovereign prerogatives have also yielded confusion
among lower courts, again justifying a clarification through a codification
of those circumstances under which these courts properly may abstain.(10)
And federal courts should be encouraged (through rule or otherwise) to seek
certification of state law questions presently available in 44 states(11)
which could avoid the unnecessary expenditure of federal court resources.
This mechanism not only respects the sovereignty of state courts in determining
the contours of their own state law, but discourages forum shopping by which
attorneys deliberately choose to raise issues of state law construction in a
federal forum.
Codification and clarification of these doctrines could result in their being
properly applied more often, reducing resort to the federal courts. And the
application of the abstention doctrine could be institutionalized by its express
inclusion in the list of motions under Rule 12 of the Federal Rules of Civil
Procedure.
C. Diversity Jurisdiction
In keeping with the view that the reduction in the rate of increase in the
courts' caseload can be achieved through a combination of measured, smaller
steps, rather than one giant, radical step, Governor Wilson also recommends
that the Commission reexamine whether the $75,000 amount-in-controversy requirement
for diversity cases should be increased to $100,000.
D. Standing
Another area where the Commission can address the increasing caseload is to
review statutory standing requirements for various federal statutory programs.
While such a review is beyond the scope of this testimony, it cannot be gainsaid
that relaxed standing requirements have occasionally led to suits brought more
for the lawyer than the client.
III. Promoting Consistency in Judicial Decisions Through a Modification of En Banc
Procedures
Analytic consistency of judicial decision-making is necessarily affected by
the number of judges in a circuit. Simply put, more judges encourage more combinations
of three-judge panels which can see the issues differently. Yet, a judge must
speak for the court. En banc review, particularly in a large circuit, is a primary
means to secure or maintain uniformity of decisions within a circuit.
However, at present, en banc review "is extraordinary, and is generally reserved
for conflicting precedent within the circuit which makes application of the
law by district courts unduly difficult, and egregious errors in important cases."(12)
Federal Rule of Appellate Procedure 35 provides that en banc review may be appropriate
"when consideration by the full court is necessary to secure or maintain uniformity
of its decisions, or when the proceeding involves a question of exceptional
performance." Moreover, Rule 35 makes clear that en banc hearings or rehearings
are "not favored and ordinarily will not be ordered."
However, the realities of large circuits suggest that the en banc review process
should be invoked more frequently and completed more expeditiously. En banc
review can help ensure the quality and analytic consistency of the circuit's
law and should be broadened to allow any erroneous rule of law to be grounds
for a request for en banc review (which the court can always decline).
To mitigate against the effects of increased use of en banc review, en banc
panels can be composed of less than the full court, such as is the case in the
Ninth Circuit, which allows en banc review by the Chief Judge and 10 additional
judges drawn by lot. (Circuit Rule 35-3.) Congress has already authorized the
use of limited en banc panels.(13) (However,
consideration should be given to whether any limited en banc court should comprise
at least 50% of the active judges of the court; otherwise, an en banc majority
decision could reflect the views of less than one-quarter of the judges in the
circuit.)
As requests for en banc review become more frequent, it is also important that
large circuit courts have a mechanism to promptly make their decision whether
such review will be granted. Although some circuits' internal operating procedures
provide that the decision whether to grant a suggestion for rehearing en banc
will be made within a time certain,(14) those
procedures are not always followed. Delayed consideration paralyzes the litigants
from taking any action to implement the panel's ruling. This is a problem that
circuits can and should readily avoid by setting an internal deadline by which
circuit judges' affirmative vote for en banc review must be cast or deemed to
be a denial.(15)
IV. The Wisdom of Continuing the Current Boundaries of the Ninth Circuit
As shown, there are means to address the problems associated with an increasing
caseload without splitting the circuits, and particularly the Ninth Circuit.
Moreover, as long as the same number of judges remain authorized for the two
resulting circuits, splitting the Ninth Circuit will not expedite the processing
of decisions.
Indeed, despite its geographic size, the Ninth Circuit has achieved certain
efficiencies that other circuits have not, most notably achieving an average
disposition time for appeals as measured from hearing to disposition
of the case of only 1.6 months, though the circuit average is 25% longer.(16)
Further, although the Circuit handles one-sixth of all federal appeals and has
a number of judicial vacancies, the median time for the Ninth Circuit to decide
appeals (14.3 months as of September 30, 1995) is less than the Eleventh Circuit
(15.1 months) and only slightly higher than the Sixth, Seventh, and District
of Columbia Circuits. And the Ninth Circuit is faster than all of the others
in rendering decisions in non-argument cases.(17)
However, a split would adversely affect the quality of justice on the West
Coast:
1) A split of the Ninth Circuit threatens inconsistent rulings along the West
Coast in areas such as admiralty law, commercial law, and environmental law.
1) In light of the size of California, any "balanced" split of the Ninth Circuit
would have to (i) split California, (ii) leave California in a circuit of its
own, or (iii) place California in a circuit with only one other state. A one-
or two-state circuit would lose the balance and objectivity that geographic
diversity in a multistate circuit fosters. As the Hruska Commission found in
1973, "circuits should contain states with a diversity of population, legal
business and socioeconomic interests." The Hruska Commission reached the considered
conclusion that a judicial circuit must be "composed of at least three states."
2) A split of California would not only risk parochialism but would invite forum shopping of the rankest kind. California would face the unprecedented prospect of a "circuit split" on a question of law within the same state, which would invite lawyers to forum shop between the two resulting halves of the state, a particularly
disconcerting prospect as it relates to litigation against the state or state
agencies.
3) By reason of the number of appeals in California and the number of circuit
judges residing there, a split of the Ninth Circuit could dramatically increase
the work load shouldered by the judges remaining in California. For instance,
one congressional proposal that created a circuit comprised of only California
and Nevada would have left 15 authorized judgeships in that diminished circuit,
with an increased work load of more than 50%.
4) Finally, a split of the Ninth Circuit appears to be motivated by judicial
gerrymandering so as to cordon off some judges from others. That can never be
a legitimate basis for circuit realignment.
Conclusion
Splitting circuits will not further the twin goals of issuing reasonably timely
appellate decisions and generating analytically consistent and uniform decisions
in the face of an increasing caseload. To the contrary, splitting circuits to
meet rising caseloads means more inter-circuit conflicts and less uniformity
among decisions. In short, it leads to less predictability in the law.
The better answer is to squarely address the problem by restraining the rate of increase in appeals, rather than accommodating the problem. Without infringing upon litigants' rights, this can be achieved through a combination of measured steps, ranging from a new and effective mediation program to resolve appeals to clarification and codification of the abstention doctrines so as to defer, where appropriate, to the state courts. At the same time, en banc review procedures can be broadened to promote intra-circuit consistency. Indeed, unless we attack the root of the problem, a new commission will be established in thirty years to decide whether to split the Seventeenth Circuit.
2. Id. at 42.
3. Id. Recommendation 17, at 44.
4. See Advisory Committee Note (a) to Ninth Circuit Rule 33-1.
5. "Structural and Other Alternatives for the Federal Courts of Appeals: Report to the United States Congress and the Judicial Conference of the United States," Federal Judicial Center, 1993, at 12 n.34.
6. The Third Circuit appears to be alone among the federal circuits in institutionalizing the use of senior circuit judges as mediators. See Third Circuit Rules, App. VI, ¶ 1. Although the Ninth Circuit has instituted a "settlement program" by local rule, it is "staffed with experienced attorney mediators." Advisory Committee Note to Ninth Circuit Rule 33-1 (effective January 1, 1997). However, Ninth Circuit Rule 33-1, as well as the accompanying Advisory Committee Note (a), contemplate the possibility that a judge may become involved in the settlement program.
7. See Ruiz v. Hull, __ P.2d __, 1998 WL 203081 (Ariz. 1998).
8. See, e.g., Delta Dental Plan of California v. Mendoza, supra.
9. Chemerinsky, Federal Jurisdiction, § 12.2.3, at 706 (2d ed. 1994).
10. Chemerinsky, supra §14.2, at 765 (concerning "Colorado River abstention," referencing "confusion among the lower courts as to what constituted sufficiently exceptional circumstances as to justify deference to concurrent state court litigation"); § 12.2.2, at 701 (concerning Thibodaux abstention, noting that "[l]ower courts are substantially divided over when abstention is appropriate in diversity cases").
11. See Schneider, "But Answer Came There None": The Michigan Supreme Court and the Certified Question of State Law," 41 Wayne L. Rev. 273, 275 & n.1 (1995) (noting that 43 states, and the District of Columbia and Puerto Rico, had adopted state law certification procedures). Since then, California has also adopted a certification procedure.
12.U.S. v. Weitzenhoff, 35 F.3d 1275, 1293 (9th Cir. 1993) (Dissenting opinion of Kleinfeld, J., with whom Reinhardt, Kozinski, Trott, and T.G. Nelson, J.J., concurred).
13. See 28 U.S.C. § 46(c) (referencing Pub. L. No. 95-486, § 6, which authorizes the creation of limited en banc panels where a court of appeals has more than 15 active circuit judges); Ninth Circuit Rule 35-3 (implementing same).
14. See Ninth Circuit General Orders 5.4, 5.5 (determinations whether to grant rehearings en banc generally made within eight weeks).
15. The Ninth Circuit has implemented a system for en banc determinations in capital cases, in which a judge's failure to cast a vote is considered a vote favoring en banc review. In non-capital cases, the presumption should be that a judge's failure to vote will be considered a vote against en banc review.
16. Statistics Division, Administrative Office of the Courts, Judicial Business of the United States Courts: 1997 Report of the Director, Table S-3 (1997 statistics).
17. Id.