1

COMMISSION ON STRUCTURAL ALTERNATIVES

FOR THE FEDERAL COURTS OF APPEALS

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SAN FRANCISCO, CALIFORNIA

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PUBLIC HEARING

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FRIDAY,

MAY 29, 1998

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This transcript was produced from tapes 

provided by the Administrative Office of the United 

States Courts.
2

INDEX

OPENING REMARKS

 Byron White, Chairman . . . . . . . . . . . . 5

TESTIMONY

 Judge Procter Hug . . . . . . . . . . . . . . 6

 Chief Judge

U.S. Court of Appeals, 9th Circuit, Reno

 Judge James R. Browning . . . . . . . . . . . 26

U.S. Court of Appeals, 9th Circuit,

 San Francisco

 Judge Charles E. Wiggins . . . . . . . . . . . 42

 U.S. Court of Appeals, 9th Circuit, Las Vegas

 Judge Joseph Sneed . . . . . . . . . . . . . . 53

 U.S. Court of Appeals, 9th Circuit,

San Francisco

 Judge Mary M. Schroeder . . . . . . . . . . . 72

U.S. Court of Appeals, 9th Circuit, Phoenix

 Judge David Thompson . . . . . . . . . . . . . 83

U.S. Court of Appeals, 9th Circuit, San Diego

 Cathy Catterson . . . . . . . . . . . . . . . 92

Clerk, U.S. Court of Appeals, 9th Circuit

San Francisco

 Gregory B. Walters . . . . . . . . . . . . . 104

Circuit Exec., 9th Circuit, San Francisco

 Judge Terry Hatter, Jr. . . . . . . . . . . . 110

U.S. District Court, C.D., California

 Judge Geraldine Mund . . . . . . . . . . . . 121

U.S. Bankruptcy Court, C.D., California

 Judge George Nielsen, Jr. . . . . . . . . . . 131

U.S. Bankruptcy Court, D., Arizona

 

 Judge Elizabeth Perris . . . . . . . . . . . 137

U.S. Bankruptcy Court, D., Oregon

 Judge Sandra M. Snyder . . . . . . . . . . . 147

U.S. Magistrate Judge, E.D., California
3

INDEX

TESTIMONY (continued)

 Judge Marilyn Huff . . . . . . . . . . . . . 157

U.S. District Court, S.D., California

 Judge Alan Kay . . . . . . . . . . . . . . . 165

U.S. District Court, D., Hawaii

 Judge Lloyd George . . . . . . . . . . . . . 168

U.S. District Court, D., Nevada

 Judge Marilyn Hall Patel . . . . . . . . . . 180

U.S. District Court, N.D., California

 Daniel Kolkey . . . . . . . . . . . . . . . . 189

Office of Governor Pete Wilson, California

 Barry J. Portman . . . . . . . . . . . . . . 199

Federal Public Defender N.D., California

 Maria E. Stratton . . . . . . . . . . . . . . 202

Public Defender, C.D., California

 Joanne Garvey . . . . . . . . . . . . . . . . 213

on behalf of American Bar Association

 James Kawachika . . . . . . . . . . . . . . . 223

President, Hawaii State Bar Association

 Miriam A. Krinsky . . . . . . . . . . . . . . 227

Los Angeles County Bar Association

 Ann Ravel . . . . . . . . . . . . . . . . . . 238

State Bar, California

 Robert Mueller . . . . . . . . . . . . . . . 242

President, Federal Bar Association

 Booker T. Evans, Jr. . . . . . . . . . . . . 252

Attorney, Phoenix

 John P. Frank . . . . . . . . . . . . . . . . 259

Attorney, Phoenix

 Rodney B. Lewis . . . . . . . . . . . . . . . 269

Attorney, Sacaton
4

INDEX

TESTIMONY (continued)

 Alan B. Rabkin . . . . . . . . . . . . . . . 273

Attorney, Reno

 Professor Jesse H. Choper . . . . . . . . . . .281

University of California, Berkeley

 Professor Margaret Z. Johns . . . . . . . . . 290

University of California, Davis

 Peter Benvenutti . . . . . . . . . . . . . . 300

Attorney, San Francisco

 Jerome I. Braun . . . . . . . . . . . . . . . 308

Attorney, San Francisco

 Peter W. Davis . . . . . . . . . . . . . . . 320

Attorney, San Francisco

 Walter T. Johnson . . . . . . . . . . . . . . 332

Attorney, San Francisco

 Robert Palmer . . . . . . . . . . . . . . . . 340 Los Altos

 Michael Traynor . . . . . . . . . . . . . . . 351

Attorney, San Francisco

 James M. Wagstaffe . . . . . . . . . . . . . 360

Attorney, San Francisco
5

1 P-R-O-C-E-E-D-I-N-G-S

2 Approximately 9:00 a.m.

3 CHAIRMAN WHITE: I guess you know who

4 you're dealing with. My name is Byron White, by the

5 way. 

6 There is the best District Judge in the

7 West.

8 JUSTICE BROWNING: I like you

9 introducing me to this audience that way. There's

10 some indication, they don't agree with you.

11 CHAIRMAN WHITE: Anyway, Bill Browning. 

12 This is Gil Merritt from the great state

13 of Tennessee. He was the prior Chief Judge of the

14 6th Circuit and was a member of the Executive

15 Committee of the Judicial Conference for a good long

16 time.

17 Did I get out of order? 

18 Anyway, here is a Circuit Judge from the

19 9th Circuit, Pamela Rymer. If you'd like the

20 pleasure of sitting with somebody -- I had it a

21 couple of years ago.

22 On the end is the Executive Director of
6

1 the Commission, Dan Meador, a retired professor of

2 law at the University of Virginia. If he's retired,

3 boy, I wonder what he was when he wasn't.

4 I think the first witness is the biggest

5 fellow in the 9th Circuit, Procter Hug.

6 JUDGE HUG: Thank you very much, Justice

7 White. 

8 I appreciate this opportunity to appear

9 before you. We're very pleased that this Commission

10 was appointed to study this matter that is so vital

11 to the federal court system. The mandate of the

12 Commission directs a national study with special

13 reference to the 9th Circuit and it's this

14 particular reference to the 9th Circuit that I wish

15 to address at the outset.

16 As Chief Judge, I can confidently

17 represent to you that the great majority of all of

18 our judges in the circuit, including the circuit

19 judges, the district judges, the magistrate judges,

20 the banker's judges and the great majority of the

21 attorneys who practice before our federal courts are

22 opposed to any division of the 9th Circuit. It's
7

1 the opinion of the overwhelming majority of the

2 judges and the lawyers of the 9th Circuit, the

3 Circuit and the Circuit Court of Appeals are working

4 well and that any advantages that might be gained by

5 dividing the circuit in any of the ways that have

6 been proposed would be greatly outweighed by the

7 advantages lost and the disruption and expense of a

8 division of the circuit.

9 It's not our function to attempt to tell

10 other circuits how they should operate in meeting

11 the steadily increasing caseload. It is our

12 function, however, to express why a large circuit

13 and circuit court which we have been fine tuning for

14 over 20 years should not be torn apart. But rather,

15 should be left intact to serve as a viable model for

16 an option to deal with the ever increasing caseload

17 over the next five, ten, and 20 years.

18 The focus of the study on the Federal

19 Courts of Appeals is most appropriate because that

20 is where the structural problem exists. It's like a

21 pyramid. At the top of the pyramid is the Supreme

22 Court. There is no structural problem there. The
8

1 Supreme Court has the ability to regulate its

2 caseload. At the trial level, there is also no

3 inherent structural problem in providing the

4 increased numbers of judges as the caseload

5 increases. The problem arises in the middle of the

6 pyramid: how we're to structure the intermediate

7 courts of appeals. 

8 As the caseload grows at the trial

9 level, it's obvious that the number of appeals will

10 increase and the question is how these appeals are

11 to be handled. One possible solution, of course,

12 would be to limit the jurisdiction of the federal

13 courts and thus, the number of cases that come into

14 the federal system. Judge Wiggins will address this

15 issue. Perhaps Congress will slow the growth, but I

16 believe that there's little doubt that the caseload

17 of the federal court system will continue to grow as

18 it has in the past. Thus, in formulating the

19 structure for the federal court system of the

20 future, we must focus on how this increasing

21 caseload is to be handled by the Circuit Courts of

22 Appeals because this dictates how the circuits are
9

1 to be structured.

2 With the existing statutory appellate

3 structure, there are three alternatives, as I see

4 it, for the courts of appeals. The first is that

5 when a circuit believes that the prime objective is

6 to keep the circuit small at all cost and to take

7 all the cases that come along and to handle them in

8 some way, in my opinion, this is the worst solution. 

9 The question then becomes how are these tremendous

10 caseloads are being handled? And whether the

11 inevitable reduced time that judges themselves can

12 spend on their cases can be justified by the desire

13 of the judges to remain a comfortably small circuit

14 court?

15 The second option would be to continue

16 to divide the circuits so as to maintain a small

17 number of circuit judges. The Hruska Commission

18 thought the appropriate number was nine. If we were

19 to divide all circuits with more than nine judges on

20 the court, there would be 12 new circuits. We would

21 now have 24 circuits. Within the next 20 years, we

22 would have 30 or 40 circuits, even if the maximum
10

1 number were increased somewhat. This would not only

2 involve a division of some of the states in two or

3 more circuits like Texas, or Florida, or New York

4 and other states, but it would inevitably involve a

5 fourth tier in the circuit structure.

6 The third alternative is to allow the

7 courts of appeals to grow in order to provide the

8 adequate judge power to resolve these cases and to

9 develop procedures that allow the larger court to

10 operate efficiently and effectively. The

11 controlling objective is not the size of the court

12 but instead, the number of judges necessary to

13 devote the judge time to the decision of a case that

14 the case requires and deserves. I think this is the

15 best approach. This is the approach that the 9th

16 Circuit has taken.

17 From the standpoint of the 9th Circuit,

18 the balance of a large state, California and the

19 eight smaller states is the best solution for our

20 circuit. California does not dominate the circuit

21 court with 40 percent of the judges in california

22 and 60 percent of the judges in the other states of
11

1 the circuit. We are a unified and well balanced

2 court, representing a wide spectrum of the cultures

3 of our nation. On our court, we consider the

4 diversity and the geographical and professional

5 backgrounds of our judges from throughout the nine

6 states to be a real strength in our circuit for

7 interpreting our national law. We should not create

8 another small circuit or leave California alone as a

9 circuit, nor should we split California or combine

10 it with another small state that it will dominate,

11 or create some other bizarre division when the

12 circuit is well balanced and working well as it is. 

13 We surely should not do so for political reasons

14 only because some members of Congress are unhappy

15 with one or two decisions.

16 We have provided a report for the

17 Commission that details exactly how our circuit and

18 circuit court operates. The document that I

19 attached to my written presentation summarizes the

20 arguments why we are convinced that our circuit is

21 working well and it answers some of the common

22 criticisms. In the limited time that I have, I'd
12

1 like to address some of these criticisms.

2 One is that the time from the notice of

3 appeal to the determination of a case has been about

4 14 months, whereas the national average is about 10

5 months. The criticism is unfair because we've been

6 operating with such a large vacancy factor. The

7 meaningful and fair observation is that once the

8 case gets to the judges, our circuit is the fastest

9 in the nation for cases submitted without oral

10 argument and is the third fastest for cases orally

11 argued. Why then the four month delay?

12 It's simple. It's because our cases

13 ready for calendaring before our panel are left in a

14 holding pattern because of the lack of judges to

15 consider them. We would be well within or below the

16 national average if we had our vacancies filled. If

17 we had, for example, the nine judgeships that were

18 vacant all last year, we would have been able to

19 have had 120 more argument panels and heard 720 more

20 cases on oral argument calendars. This would have

21 eliminated the delay that we're currently

22 experiencing. It is only because of the
13

1 extraordinary effort of both our active and senior

2 judges in this emergency situation that we've been

3 able to keep even reasonably current.

4 Another criticism we hear is the lack of

5 consistency because we're a large court with a large

6 number of possible panel combinations. No doubt any

7 attorney who has lost a case or a judge who has been

8 reversed believes that the decision is inconsistent

9 with the law that he cited. The empirical study,

10 however, of Professor Arthur Hellman found no

11 evidence that the size of our circuit lead to in12 trial circuit conflicts or inconsistencies. A

13 similar conclusion was reached in a thorough study

14 published by the Federal Judicial Center.

15 Another criticism is that we publish too

16 many cases to keep track of and thus, the law is

17 difficult to discern. Annually, we publish between

18 700 and 800 opinions. Interestingly, the 5th, 7th

19 and 8th Circuits publish about the same number of

20 opinions as the 9th Circuit. In fact, last year,

21 the 8th Circuit published a few more. For those of

22 us who have practiced in small states --
14

1 CHAIRMAN WHITE: Maybe the evil is

2 present in those other circuits.

3 JUDGE HUG: Could be. Could be. I

4 don't think so though. I was just about to say, and

5 that's kind of a good question to lead into what I

6 was just about to say.

7 For those of us who have practiced in

8 small states --

9 CHAIRMAN WHITE: I didn't intend it to

10 be leading.

11 JUDGE HUG: Oh, you didn't?

12 CHAIRMAN WHITE: Go ahead.

13 JUDGE HUG: Well, it worked out well.

14 Those of us who have practiced in small

15 states where there are a dearth of published

16 opinions, we recognize that the greater handicap is

17 when there are gaps in precedents. I believe that

18 the size of our circuit, we're able to choose those

19 cases that add meaningful precedent, and yet do not

20 fill the books with opinions that are simply

21 redundant. We've developed techniques to avoid

22 inconsistency with the issue coding that we have
15

1 detailed in the report. Of course, the prime

2 mechanism for avoiding inconsistencies is the

3 responsibility of each panel to be aware of and to

4 carefully follow circuit precedent. Our judges make

5 every effort to do so.

6 Our modern 11 judge en bank process is

7 one of the major factors that enables our large

8 court to function effectively. Any active or senior

9 judge can call for a bank vote supported by a

10 memorandum articulating the reasons for the call. 

11 This generally stimulates a lively exchange of

12 thoughtful memoranda over E-mail from active and

13 senior judges supporting or opposing the call. The

14 full court is involved in this process. 

15 Now some argue that this doesn't

16 appropriately represent the court. Yet, of the 180

17 cases, the en bank cases we've had since 1980, 33

18 percent of them were decided unanimously and 72

19 percent of them were decided by a majority of eight

20 to three or greater. Our rules provide that a judge

21 may request a full court review of the decision of

22 an 11 judge en bank court. In the past 17 years,
16

1 there have only been three such requests and in each

2 case,t he majority of the judges voted against the

3 full court review. In fact, the first two I recall,

4 there were only four votes for such a call. The

5 last one was more close. I think that this clearly

6 demonstrates that our court is quite content to have

7 the 11 judge en bank court be the final decision of

8 the 9th Circuit Court of Appeals.

9 Another criticism that has been leveled

10 unfairly against the 9th Circuit is the lack of

11 collegiality among our judges. This criticism has

12 been expressed by those from across the continent

13 who have never served with our court or experienced

14 the relationship that our judges have with each

15 other. We are, in fact, a very collegial court. We

16 are friends with each other. Even though we may

17 disagree vigorously on points of law, it is never

18 extended to being any sort of personal antagonism.

19 COMMISSION MEMBER: Judge Hug, may I ask

20 a question about that?

21 JUDGE HUG: Yes.

22 COMMISSION MEMBER: This matter of
17

1 collegiality seems to mean different things to

2 different people. In a lot of the writings about

3 it, collegiality in appellate court, there are

4 several points made. One is, it is very important

5 to the quality of the decisional process, et cetera. 

6 Some say in the writings about it that it is

7 necessary that the judges, in order to maintain

8 collegiality, work together frequently, sit together

9 frequently, get to know each other well and so on.

10 I'm wondering if you could comment on

11 that view of collegiality, and if you could give

12 some kind of estimate -- I know it may not be very

13 precise -- as to how often each judge of the court

14 sits with each other. In other words, say Judge A,

15 how often would he sit with Judge M? Over what

16 period of time will they likely sit together?

17 JUDGE HUG: Well, I think you're quite

18 correct that collegiality involves more than just

19 being friends. It involves being able to work

20 together, to know each other's opinions, to know how

21 each other think. I think the question is a very

22 good one in that respect. I am pleased to say that
18

1 on our court, we do know each other very well. We

2 know the opinions that other judges have. 

3 You're asking how often we sit together. 

4 Our computer structure is such that every judge is

5 supposed to sit with another judge at least within

6 two to three years. Now, in addition to that, the

7 judges sit together on this 11 judge en bank court

8 and on our capital case rotation. So, I would say

9 that we sit together at least, with every other

10 judge, within a couple of years. We see each other

11 a lot more often. We receive E-mail from each other

12 a lot more often. We know very well the positions,

13 the feelings, the feelings on the law of the other

14 judges of the circuit. The fact that we don't sit

15 as a panel of three, you know, every two or three

16 months doesn't mean we don't know very well what the

17 other judges are thinking and how they're going

18 about their decisions.

19 CHAIRMAN WHITE: Didn't I read that all

20 of your judges get together for an outing?

21 JUDGE HUG: Yes, that's a very important

22 meeting. I think one of our most important meetings
19

1 to the court is the annual symposium that we have. 

2 We get together and --

3 COMMISSION MEMBER: And that's a program

4 on the law?

5 JUDGE HUG: That's right. For half-a6 day or a little longer, about five hours, we discuss

7 for three days, the problems or the advancements

8 that we can make with the court. We have a regular

9 program presented and the chairman of that symposium

10 organizes the calendar, really, for discussion of

11 those issues that the judges feel are most important

12 that particular year.

13 CHAIRMAN WHITE: And are your circuit

14 judges required to attend your judicial conference?

15 JUDGE HUG: Well, Congress changed the

16 rule unfortunately, so they're not.

17 CHAIRMAN WHITE: Yes, yes. Well,

18 Procter, you could have a court rule.

19 JUDGE HUG: Well, maybe we should have. 

20 We certainly encourage it.

21 CHAIRMAN WHITE: Anyway, the attendance

22 is good?
20

1 JUDGE HUG: Attendance is good. The

2 attendance is good of the district judges and

3 bankruptcy judges and magistrates. It's an

4 important time for all of us to get together and

5 exchange views, and exchange views with the Bar. We

6 feel it's very important to not deal in isolation;

7 that we're exchanging views with other judges and

8 particularly with the Bar. Those conferences are an

9 ideal situation for doing so.

10 COMMISSION MEMBER: Judge Hug, may I ask

11 a question?

12 You opined that in 20 years, if things

13 go as those who would have split circuits wish them

14 to go, we'd have 30 or 40 circuits. What if the 9th

15 Circuit were left alone for 20 years? What would

16 its size be? And I guess the question that has come

17 up at other hearings -- and I know you're aware of

18 it because of the Seattle hearings. The follow-up

19 question, I guess, is how big is too big? Or is

20 there such a thing as too big?

21 JUDGE HUG: I think the key answer to

22 that is that it should be within the court and
21

1 within the circuit. When a circuit got to a

2 position where the circuit court was too big and not

3 operating efficiently and effectively, I think the

4 judges of the court and the judges throughout the

5 circuit and the lawyers are going to know it. 

6 That's the time when we should do something about

7 it.

8 Now, the 5th Circuit decided almost

9 unanimously, in the way they were operating they

10 thought they should split. That's not the case in

11 the 9th Circuit now and I don't think it has to be

12 the case in the 9th Circuit for any time in the

13 immediate future at all. What happens along the

14 way, down the line, is something for the circuit and

15 the circuit court to evaluate then.

16 I'd like to emphasize that we consider

17 ourselves a very effective court. We've instituted

18 many innovations that I've put out. In my written

19 things, I've mentioned a few: the long-range

20 planning process, issue coding to avoid conflicts,

21 mediation and settlement program -- which we got a

22 lot of help from the 6th Circuit on, I might mention
22

1 -- the appellate commissioner and our motions and

2 screening and conference calendar.

3 Now, I'd like to just take a moment to

4 particularly comment on this program because I think

5 it's so important for the decisional process. Three

6 judges meet for five days a month to consider

7 motions and cases that appear to be clearly governed

8 by existing precedent or have jurisdictional defects

9 or are frivolous.

10 CHAIRMAN WHITE: Mr. Chief Judge, I

11 gather that you have one, three, five, seven and is

12 it nine -- nine, 10. Your staff, I gather, decides

13 which weight to give these cases.

14 JUDGE HUG: That's right.

15 CHAIRMAN WHITE: As I understand the

16 statement that you've sent in, the staff looks at

17 the cases and decides the weight. And only the

18 number one, the lightest weight, is screened.

19 JUDGE HUG: That's right.

20 CHAIRMAN WHITE: All the others are

21 automatically on the oral hearing list, right?

22 JUDGE HUG: That's right, with one
23

1 exception. During this past year, we've

2 experimented with something figuring that some of

3 our three-way cases were actually more easily

4 decided and were governed by existing precedent. 

5 Therefore, we've experimented with judges looking

6 over what the staff has done. So, we've put a few

7 of the three-ways into that category and that has

8 worked out well.

9 There is a fail-safe device though that

10 if any one judge on that panel thinks that the case

11 should be orally argued, it is orally argued. I

12 think the real strength of that whole program is

13 that we get three judges there together, all

14 addressing the same case at the same time. And with

15 the experience of those judges and the preparation

16 of the staff attorney, we're able to determine, I

17 think, quite fairly whether it can be decided in

18 that process and if so, we go ahead and decide it. 

19 But if it should not, we put it on the argument

20 calendar.

21 CHAIRMAN WHITE: Are all the number one

22 weight cases counseled? Are most of them
24

1 uncounseled?

2 JUDGE HUG: Most of them are

3 uncounseled.

4 CHAIRMAN WHITE: Well, how about the

5 ones that are counseled?

6 JUDGE HUG: Some are counseled, but some

7 of those are either frivolous or determined in some

8 other way.

9 CHAIRMAN WHITE: Well, even if they're

10 counseled, the counsel doesn't get a word in

11 edgewise about whether or not oral argument should

12 be given?

13 JUDGE HUG: He does have an opportunity

14 to write in and request that it be orally argued. 

15 Then if any one of the judges believe that it should

16 be, it is. But there is an opportunity to do that.

17 CHAIRMAN WHITE: Right, but he's not

18 present?

19 JUDGE HUG: He is not present. That's

20 right.

21 CHAIRMAN WHITE: Thank you.

22 JUDGE HUG: Right.
25

1 Well, in conclusion, I would like to say

2 that not only I've mentioned our court. What is

3 equally important is the value of our circuit-wide

4 institutions and the adverse institutional effect

5 that division would have on the 9th Circuit

6 throughout the entire circuit and others will

7 discuss this. 

8 I would just close with this thought. 

9 Any discussion about a policy decision as serious as

10 breaking up a 100 year old institution ought to

11 begin by determining who has the burden of proof. 

12 The burden should be on those who propose to split

13 the 9th Circuit to show that a particular proposal

14 will advance the cause of justice and will do so

15 with a greater efficiency and effectiveness than the

16 9th Circuit has been able to do for the last

17 century. This burden has not been met.

18 Thank you.

19 CHAIRMAN WHITE: Thank you very much.

20 Aren't you from Montana?

21 JUDGE BROWNING: Elte, Montana.

22 CHAIRMAN WHITE: And weren't you the
26

1 former Chief Judge?

2 JUDGE BROWNING: I was. And I tell you,

3 it's a great circuit. I joined our --

4 CHAIRMAN WHITE: But you haven't taken

5 senior status?

6 JUDGE BROWNING: No, don't urge me too

7 strongly. I will in due course. 

8 That's one of the things that you ought

9 to notice, everybody ought to notice. There's talk

10 about how this court in some respects -- the kind of

11 decisions we make don't please particular people. I

12 think we ought to remind everybody that the present

13 court is a transitory matter. We have 28 vacancies

14 that are in the process of being filled. Within a

15 year, I don't think I'll know anybody on this court. 

16 It's a changing institution. It doesn't operate

17 statically. Just wait a little while. If you don't

18 like the way we decide them, just wait a few years

19 because there's a lot of people coming up.

20 CHAIRMAN WHITE: Tell me about it.

21 JUDGE BROWNING: No judicial institution

22 should be changed because of the particular point of
27

1 view of the judges that are on it at the moment. 

2 Everyone knows that it will only lead to instability

3 and inappropriate pressures being put on the court. 

4 Just be a little patient anyway. The way the thing

5 works, it will change and you ought not to destroy

6 the institution because you don't like the way the

7 particular judges on it now look.

8 I want to second strongly our Chief

9 Judge's suggestion that this Commission should urge

10 the Congress not to divide the circuits or take

11 (indiscernible) any other way, but instead to let

12 them continue the programs that they've had underway

13 that have enormously increased the productivity of

14 the federal courts over the last 30 years. There's

15 a remarkable exhibition of what federal judges

16 innovating, doing their work can accomplish. I

17 think you should let them continue to do it. Until

18 they really do fail, no effort should be made to

19 change the structure.

20 That was the conclusion reached by the

21 three studies that preceded you. They all concluded

22 there ought to be no divisions or a change in the
28

1 structure of the Federal Courts of Appeal. But

2 instead, they should be encouraged to continue to

3 innovate and experiment. The last of those reports

4 filed in 1995 and adopted by the Judicial Conference

5 encouraged the spirit of experimentation and

6 innovation that has long existed in the federal

7 courts and do not realign unless compelling,

8 empirical evidence demonstrates that the

9 adjudicative and administrative functions of the

10 court are failing.

11 The fact is, as Procter has said, that

12 the Federal Courts of Appeals are working better

13 today than ever before. They're handling more

14 appeals. They're doing a more thorough job. 

15 They're doing it in a timely manner than they have

16 at any time in their history. That's true of our

17 court. Despite its major obstacles, we stand now as

18 the third highest among the circuits in the

19 productivity for each active judge. Our termination

20 to exceed our filings and minor delays that now

21 exist will disappear when our vacancies are filled. 

22 I absolutely guarantee it.
29

1 Much of the discussion in Seattle a few

2 days ago was directed to the proposition Procter has

3 mentioned, wondering whether we are reasonably

4 consistent in our holdings. I say that all of the

5 hard evidence requires an affirmative answer to that

6 question. Hellman's definitive studies have been

7 mentioned. Let me say it is also my personal

8 experience. I sit every month out of eight months a

9 year on a calendar of approximately 30 cases. We

10 almost never have an argument from a lawyer that

11 there are inconsistent controlling decisions within

12 the 9th Circuit. It's a very rare occurrence. How

13 can that be to hear some talk? The fact is, there's

14 no evidence to that effect that there is any

15 substantial difficulty.

16 Conflicting decisions are not a large

17 part of my life. I go on month-after-month hearing

18 case-after-case. That's not the problem. It's not

19 presented to us by the lawyers. I think it really

20 doesn't exist. The fact is that we have a very

21 successful system for locating issues that are the

22 same (indiscernible) for the same panel and all the
30

1 other things that have been on report that

2 essentially has eliminated conflicts except for a

3 very few in the 9th Circuit. We respond to those

4 within our en bank process. I think we've

5 calculated the total number of en banks that have

6 occurred in our court over the years we've had that

7 system --

8 CHAIRMAN WHITE: Are those few just in

9 deliberate?

10 JUDGE BROWNING: Are deliberate? I

11 don't think there's any judge on our court that

12 would deliberately misapply another decision of the

13 court. Usually, lawyers spend most of their lives

14 arguing that other cases are distinguishable from

15 theirs.

16 CHAIRMAN WHITE: Well, certainly, there

17 are a lot of deliberate conflicts with other

18 circuits.

19 JUDGE BROWNING: Oh, deliberate -- yes,

20 that's true. I'm only talking about the internal

21 situation.

22 CHAIRMAN WHITE: But is there a rule in
31

1 your court that if you want to overrule a precedent,

2 you have to go --

3 JUDGE BROWNING: Yes. The rule to put

4 it affirmatively, is that every panel has to follow

5 the decisions of the prior panels of the court. If

6 you didn't do that, you really have chaos. 

7 COMMISSION MEMBER: Judge Browning, may

8 I ask a question?

9 JUDGE BROWNING: Sure.

10 PROFESSOR MEADOR: You mentioned the

11 Seattle hearing the other day. You may have heard

12 some testimony -- we've heard it elsewhere too --

13 that there is a perception among some lawyers at

14 least and among some district judges that there are

15 inconsistencies and that the outcome of an appeal

16 depends on the luck of the draw with the panel you

17 get.

18 What is your response to that

19 discussion?

20 JUDGE BROWNING: Well, I would say,

21 Professor Meador, at the outset that perception

22 lacking evidence, any substantial evidence, is a
32

1 poor basis for restructuring a court. I think

2 basically, all you have when you get right down to

3 it -- I've talked many times with the people who

4 have worked on the problem. If they asked the

5 person what cases are in conflict, they almost never

6 have a case in mind. If they do and you look at it,

7 the differences are pretty obvious. 

8 I don't say that it never happens. The

9 only cases I vote to take en bank are those in which

10 I'm satisfied there was a conflict. That's less

11 than a third of those that we take en bank and then

12 --

13 CHAIRMAN WHITE: Well, how did that

14 happen (indiscernible) conflict? The lawyer didn't

15 realize or the panel didn't realize that it was

16 creating a conflict?

17 JUDGE BROWNING: I must repeat, I would

18 never vote to decide a case before me inconsistently

19 with the prior decision of our court, and I think

20 that's true of all of our judges. When a conflict

21 occurs, usually it's no --

22 CHAIRMAN WHITE: Somehow they got there.
33

1 JUDGE BROWNING: Pardon?

2 CHAIRMAN WHITE: Somehow they got there.

3 JUDGE BROWNING: Somehow they got there.

4 But I think lawyers spend their lives,

5 as I said before, distinguishing prior cases and

6 sometimes you don't agree that they're properly

7 distinguished. That's the way it usually comes up. 

8 We have an en bank process. Somebody says "take

9 this case en bank because it conflicts with a prior

10 decision of our court." We then have an exchange of

11 memoranda from all members of the court, half

12 arguing that there is a conflict but half arguing

13 there isn't. They're different cases. That's the

14 way it comes up.

15 CHAIRMAN WHITE: Yes, but I would

16 suppose that all of your en banks are not dealing

17 with supposed conflicts. They're just wrong.

18 JUDGE BROWNING: No. There are two

19 grounds --

20 CHAIRMAN WHITE: They're just wrong. 

21 The panel got it bad.

22 JUDGE BROWNING: There are two grounds
34

1 for granting an in bank review under the statute and

2 under our rule. The first is to keep the law of the

3 circuit harmonious. That's conflicts. I vote for

4 those. The second ground is if a case is of

5 extraordinary importance. I never vote for those. 

6 That's in the eyes of the beholder. But that's two7 thirds of the cases we take en bank are in that

8 category. If you have a clear conflict, you'll get

9 a unanimous vote of the judges of this court to take

10 it en bank. That's my view. Those who have studied

11 it rather than just reacted to it emotionally

12 sustain that.

13 Now, Judge Rymer made a point with me

14 the other day that I hadn't thought of. It isn't

15 just the conflict in decisions that counts, it's the

16 rationale. If you're sitting as a district court

17 judge trying to draw an instruction, you don't just

18 look at the decision. You have to look at what the

19 reasoning is in order to come to a way in which to

20 instruct the jury. I don't think we've been careful

21 enough about that, about keeping our language

22 consistent, but we can be and we will be. We've
35

1 already discussed it in our court. We'll be working

2 on it. 

3 The one thing about this court that I'm

4 absolutely sure of is that they will look at the

5 problem in the face and they will try to find the

6 best solution, and they'll act on it. I think

7 that's one that we can improve considerably. But

8 as far as conflicts and decisions are concerned, I

9 say again, they've not been part of my life for the

10 last 35 years, very, very rarely. Now I know you

11 sat on the Supreme Court and thought such should be

12 granted in a lot of cases because there were

13 conflicts between the circuits. I think that's the

14 function of the Supreme Court to resolve those

15 conflicts, not ours. If another circuit goes

16 another way, you get two points of view up there and

17 then you can resolve it. I don't think it's our

18 function to resolve those. We make the choice on

19 the basis of how we see the law as to what the right

20 rule, right (indiscernible) should be.

21 You've asked how large can a court be? 

22 Our record on determining how many judges can
36

1 function effectively on an appellate court is lousy. 

2 I just counted a few facts here that I think you'll

3 be interested in. I hope so. Judge Charles Allen

4 Wright reported that when he was clerking in 1947 on

5 the 2nd Circuit, everybody thought the absolute

6 maximum number was six. That's the number of judges

7 they then had on the 2nd Circuit. The Judicial

8 Conference of the United States in 1964 said it was

9 nine. Eight years later they said it was 15. 

10 Justice Burger said that he thought the optimum

11 figure was nine and he announced that we couldn't

12 function effectively if we had as many as 13. We've

13 been functioning effectively with a good many more

14 than 13 for a good many years.

15 Judge Chewfa testified before this

16 Commission that the maximum number was 12. That

17 happens, not coincidentally, to be the number of

18 judges on his court. Six circuits have more than 12

19 judges. I'm sure if you go to those circuits and

20 ask them, they will say that "we think we're doing

21 very well, thank you very much, with our 12, or 13,

22 or 14 judges."
37

1 CHAIRMAN WHITE: We've noticed that.

2 JUDGE BROWNING: Yes.

3 We've moved, Justice White --

4 PROFESSOR MEADOR: Judge Browning, may I

5 ask a question on a slightly different line?

6 If you listen to all the claimed

7 advantages of a very large circuit, it tends to take

8 you on maybe to thinking about whether those people

9 who advocate abolishing all circuit lines and having

10 a single nationally unified court of appeals that

11 might function through various kinds of divisions. 

12 I'm wondering what you might say about that? Do the

13 advantages claimed for a large circuit that we hear

14 in the 9th Circuit lead you on ultimately to that

15 sort of conclusion that if they're good in the huge

16 circuit like this -- or all the advantages you have

17 -- why not extend it nationwide and abolish all

18 circuit lines?

19 JUDGE BROWNING: Well, the spirit of an

20 institution is perhaps its most important part. My

21 feeling toward the judges on our part are 28 plus 10

22 seniors, 38. I really love them all, you know? You
38

1 live with them. You work with them. You get to

2 know them well and you really do. It doesn't take a

3 lifetime. I know how our judges think. I know how

4 they're going to vote in most cases. In most cases,

5 we all vote the same.

6 We sat on a calendar together in Hawaii

7 and a couple of weeks ago, we had 28 cases. We may

8 have one or two disagreements and that's all.

9 JUDGE RYMER: You don't have to disagree

10 with the other two of us (indiscernible) make it

11 unanimous.

12 JUDGE BROWNING: I think it's important

13 that you have a number that you can live with and

14 you can get to know. Anyway, the good old 9th

15 Circuit is something that we are proud of. We want

16 to work to keep it together. All of the circuits,

17 you're going to find, feel the same way about it.

18 You say "abandon the 2nd Circuit"? You

19 couldn't get them to do that for love or money. 

20 They believe the 2nd Circuit is the queen of the

21 circuits and they want to keep it. I think that's

22 important to the quality of the work that they do. 
39

1 When we moved from seven to nine, nine to 13, 13 to

2 23, 23 to 28, every time we made those moves, there

3 were people who said "with the larger number, it

4 will not work." They were repeatedly wrong.

5 So, I urge you, don't try to determine

6 what the right number is. There's only one way to

7 determine it and that's to try it. You'll find out

8 soon enough, as our Chief Judge said.

9 COMMISSION MEMBER: You've never had a

10 chance to try your 28 judges, have you?

11 JUDGE BROWNING: Oh, yes. We operated

12 with 28 and it was fine.

13 COMMISSION MEMBER: And how long?

14 JUDGE BROWNING: Oh, how long without --

15 quite a while without a vacancy. I think so. Our

16 vacancies are fairly recent, last two years, say, or

17 three. We've had 28 -- if I may, Your Honor, submit

18 in writing an analysis of how long we sat with 28.

19 CHAIRMAN WHITE: Don't worry. I know.

20 JUDGE BROWNING: I know. I repeat,

21 nobody knows how many are too many. The one way to

22 do it is to try it.
40

1 May I take one more moment to speak

2 about the suggestion -- because I know you were

3 interested up in Seattle -- that we decide our cases

4 by region. I want to point out, as Judge Goodwin

5 did up there, we tried that 20 years ago. We kept

6 it and we had a six month experiment plan which took

7 our three regions. The judges in those regions

8 heard the appeals from those regions. After five

9 months, we unanimously decided to give it up. We

10 thought there were discrepancies developing among

11 the decisions in those three different areas. We

12 felt there was a real loss of collegiality. The

13 full paper record on that experiment and how it

14 worked and didn't work. I urge the Commission to

15 examine it and arrive at their own conclusion. We

16 were ready to try it. We're ready to try it again

17 if there's any point in that.

18 Finally, I want to urge the Commission

19 that in circumstances in which you exist, what you

20 say is going to be enormously important. You were

21 created to make recommendations to Congress. 

22 Presumably, Congress will not necessarily follow,
41

1 but they will certainly pay attention to them. What

2 you recommend and what you say is going to be

3 exceedingly important to us. Again, I urge you to

4 look at our record if you aren't satisfied that

5 circuit should continue to live and do as it is now

6 doing, and I'm confident you will. Thank you very

7 much.

8 COMMISSION MEMBER: Judge Browning, may

9 I ask a follow-up question about when you tried the

10 experiment of adjudicative divisions as opposed to

11 administrative decisions? 

12 When the court decided that that was a

13 failed experiment, was that on the basis of the

14 empirical data you think we should have to make our

15 decisions? Or was it a preference of the judges

16 based upon that experience?

17 JUDGE BROWNING: My guess is the latter,

18 and that's my recollection of it. I wasn't feeding

19 -- it was harder to keep together and have a uniform

20 body of law when you're getting hit from three

21 different tribunals.

22 COMMISSION MEMBER: Well, I mean, was
42

1 that supported by empirical data or was that the

2 perception of the judges afterward?

3 JUDGE BROWNING: As far as I'm concerned

4 now, 20 years later, it's perception. How much data

5 do we have on it? I can't tell you.

6 COMMISSION MEMBER: Okay, sir.

7 JUDGE BROWNING: I can tell you we'd be

8 delighted to have you have it.

9 COMMISSION MEMBER: Thank you.

10 JUDGE BROWNING: Thank you.

11 CHAIRMAN WHITE: Good morning, Judge

12 Wiggins.

13 JUDGE WIGGINS: Good morning, Justice

14 White.

15 Justice White and Members of the

16 Commission, my name is Charles Wiggins and I am a

17 Senior Judge on the 9th Circuit. I've been a Senior

18 Judge now for about three years. I'm sort of new in

19 the saddle.

20 I don't have any material in front of me

21 because I can't read it. I'm suffering from a

22 problem that may be unrelated to Dan Meador's
43

1 problem, but the point is that I'm just about blind

2 now. My secretary prepared material that I could

3 read and it had one word on every page, and I would

4 just flip back and forth.

5 I have been appointed to the court -- I

6 was appointed to the court in 1984. I practiced law

7 in Southern California for, oh, I guess about 50

8 years now, 45 years. Interrupted, I think, by my

9 service in Congress. I served in Congress in 1966. 

10 I was selected in '66 and served on the Judiciary

11 Committee for 12 years and left Congress in '78. I

12 don't have many colleagues left in the Congress,

13 some on the Senate side. 

14 While I was in Congress, I served on a

15 number of commissions including the Hruska

16 Commission. I may be one of the sole surviving

17 members of the Hruska Commission. I served on that

18 commission and I think I participated in the

19 decision that ended up with a recommendation by the

20 Hruska Commission to divide California. I made a

21 mistake then and I've grown to understand the nature

22 of that mistake and I fully endorse the
44

1 recommendations of my Chief Judge Procter Hug not to

2 divide the 9th Circuit.

3 I want to start with some of the

4 arguments made by those who advocate the division of

5 the circuit. Some of my colleagues of whom I have

6 great personal respect. They're very bright judges

7 but they make some of the foolish arguments and I

8 think I am not being impolite if I point them out to

9 you. The notion that the circuit is too big is a

10 commonly repeated phrase around the country. "This

11 circuit is too big". Well, why is it too big? It

12 was created large. It was created more than 100

13 years ago and it was larger then than it is now. 

14 But as a practical matter, the

15 communication between the circuits, the travel time

16 between areas in the circuit has greatly diminished. 

17 We have the ability to use E-mail instantly anyplace

18 in the circuit. We have a telephone. We have jet

19 travel that reduces the time of travel enormously. 

20 When the circuit was created in 1851, the travel

21 between Sacramento and San Francisco was two days. 

22 It's two hours now. The notion that the circuit is
45

1 too big is just a canard and it ought to be put down

2 by you. 

3 We are getting smaller, to tell you the

4 truth, and we're going to get much smaller in the

5 years ahead. The notion of electronic video

6 arguments is coming just in a year or so and the

7 notion that we're going to have to travel to distant

8 points in the circuit is going to be a thing of the

9 past in just a few years. Judges will not have to

10 travel. They will be able to hear arguments in

11 their own circuits. Now, I don't think that will be

12 terribly popular with the bar representing some

13 people on the civil side because they like to

14 travel. They get paid for it, and they do. I think

15 that that will be reluctant for them to accept the

16 notion. But judges will force them to accept the

17 notion that they assemble in their own hometowns and

18 judges assemble in their own place of city and they

19 have electronic arguments on videotapes. It's just

20 a year or so away.

21 In any event, I would like you to --

22 COMMISSION MEMBER: Judge Wiggins --
46

1 JUDGE WIGGINS: Yes, sir.

2 COMMISSION MEMBER: -- may I interrupt

3 you for one question?

4 If I understand what you're saying,

5 you're saying each panelist of the three judge

6 panels would hear these arguments on a video screen

7 in his or her own chambers.

8 JUDGE WIGGINS: Yes, I think so.

9 COMMISSION MEMBER: Then how would they

10 deliberate as a panel?

11 JUDGE WIGGINS: Electronically, by mail.

12 COMMISSION MEMBER: Through a video?

13 JUDGE WIGGINS: Probably, it would be

14 worked out experimentally, but I would think that

15 they would be all tied up on telephones and

16 literally having a conversation at the same time

17 amongst the members of the panel.

18 COMMISSION MEMBER: But they wouldn't

19 have a face-to-face deliberative session as they do

20 now, following oral arguments?

21 JUDGE WIGGINS: They would not. That

22 may be a shortcoming and perhaps the panel would
47

1 work it out.

2 COMMISSION MEMBER: It may not be. I'm

3 just curious. I hadn't thought about it.

4 JUDGE WIGGINS: Yes. And I'm not

5 creating a model that is going to be imposed, but I

6 know that that's coming. I know that it's coming

7 and you know that it's coming. It's existing now in

8 certain places in the circuit and certain places

9 around the country.

10 JUDGE RYMER: Indeed, Judge Wiggins, I

11 just participated in a video conference last

12 weekend. I would assume that conference could be

13 held in the ordinary course on the video hookup

14 which would, in effect, be face-to-face.

15 JUDGE WIGGINS: Yes. I would think so. 

16 I don't think that that's beyond working out by the

17 panel. The panel may want to assemble in a certain

18 city to hear arguments physically, but I think that

19 the technology is almost here -- well, it is here in

20 the military -- but it is not transferred

21 conveniently to the courts but it will be just in a

22 matter of days.
48

1 COMMISSION MEMBER: If that is the way

2 of the future, does that lead to the conclusion that

3 it really doesn't make any difference how big or how

4 small the circuits are? That numbers become

5 irrelevant in such a circumstance?

6 JUDGE WIGGINS: I am reluctant to

7 abandon the notion of geographic circuits because of

8 the spirit of federalism in the United States, and

9 states' rights, interests, but I think it ought to

10 be understood as a function of the United States

11 government. We are United States judges and we

12 don't have parochial concerns. The people who

13 advocate divisions have really parochial concerns

14 and you ought to understand that. A judge who --

15 COMMISSION MEMBER: Well, isn't that

16 what federalism is all about in some ways --

17 JUDGE WIGGINS: Yes, it is.

18 COMMISSION MEMBER: -- parochial

19 concerns.

20 JUDGE WIGGINS: That's right, but we

21 abandon that notion when we put on our mantel as a

22 United States judge. We have to serve the United
49

1 States government and we do serve the United States

2 government by interpreting federal laws that are

3 enacted in Washington, DC and signed by the

4 President, and that are applicable everywhere. 

5 That's a very important function. I think that we

6 should not abandon that notion.

7 COMMISSION MEMBER: But Judge Wiggins,

8 let me ask you this, if I may?

9 How do you square that proposition with

10 what you just said earlier that you favor regional

11 circuits? That you would not want to abandon the

12 regional circuit design?

13 JUDGE WIGGINS: Yes, yes.

14 COMMISSION MEMBER: Well, how do you put

15 those two statements together?

16 JUDGE WIGGINS: Yes, I can't reconcile

17 them because they are inconsistent. I would think

18 that if we had to do it all over again, maybe we

19 could operate as one giant circuit for the United

20 States with administrative divisions locally. Well,

21 I'm not sure that I would favor that because it's a

22 compromise. The compromise is mandated by the
50

1 Senate of the United States. You know, there are

2 the sorts of the problem here. The Senate of the

3 United States has two senators from every local

4 state and they tend to favor their local states. 

5 They do, and I suppose that's to be understood. But

6 they would not abandon them.

7 You know, the notion of maybe we should

8 do away with the 1st Circuit, merge it with the 2nd,

9 all of that -- that's hypothetical because it won't

10 happen. We couldn't recommend that. I recommend in

11 my prepared statement that we chisel a little bit

12 and take on the circuit that may be most vulnerable,

13 the DC Circuit, and that we at least recommend --

14 that you recommend that it be merged with the 4th

15 Circuit. But you know, I think that's -- pick on

16 the DC Circuit.

17 COMMISSION MEMBER: The 4th may not want

18 them any more than the 10th wants Arizona, Judge

19 Wiggins.

20 JUDGE WIGGINS: Yes, I understand. I

21 understand that and I was a little reluctant to even

22 put that little dig into the thing.
51

1 CHAIRMAN WHITE: Judge, perhaps you

2 don't want to answer this. If you took a poll on

3 the judges on the 9th Circuit, how many of them

4 would favor the split in the circuit?

5 JUDGE WIGGINS: I can answer that only

6 with reference to the circuit judges.

7 CHAIRMAN WHITE: Yes, that's what I

8 mean.

9 JUDGE WIGGINS: There were at the last

10 meeting, about 22 or 23 persons present.

11 CHAIRMAN WHITE: That had senior judges

12 in it, I guess?

13 JUDGE WIGGINS: Yes. There were, I

14 think, 22 or 23 -- Pam, you were there -- on that

15 order. I believe the answer that you seek was

16 around 20 to maybe 4 or 5. That's just about the

17 way it is. That's just about the way it is.

18 COMMISSION MEMBER: That's your opinion

19 anyway.

20 JUDGE WIGGINS: Well, yes, and I'm very

21 confident in that opinion.

22 COMMISSION MEMBER: Yes.
52

1 JUDGE WIGGINS: I can represent that

2 that's probably the way it is, but there has not

3 been a definitive vote taken.

4 Let me conclude by asking you not to

5 trifle with the circuit. The proposal has been made

6 that maybe we would consider administrative

7 divisions, judicial divisions. Why would you do

8 that? Why would you do that?

9 I think that the answer has got to come

10 from you. You would simply be physically dividing

11 the circuit without achieving any benefits from it. 

12 You know, I've come to love this circuit. I

13 recognize that I made a mistake serving on the

14 Hruska Commission and I don't want that repeated if

15 it's at all possible. I urge you not to do that. 

16 If you would come up with some -- and if I may say

17 it -- cockamamie proposal, that you justify it and

18 permit me to take you on in the Senate of the United

19 States and in the House because that's where the

20 political game is going to be played.

21 Well, in any event, I much appreciate

22 your opportunity for permitting me to testify. If I
53

1 can answer any questions you may have, I'd be

2 pleased to do so.

3 CHAIRMAN WHITE: Thank you, Judge. We

4 appreciate your coming here and good luck to you.

5 JUDGE WIGGINS: Yes, thank you, Judge.

6 CLERK: Call the next panel, Honorable

7 Joseph Sneed, Mary M. Schroeder, David Thompson.

8 CHAIRMAN WHITE: You may proceed, Judge

9 Sneed.

10 JUDGE SNEED: Thank you, Justice White.

11 I don't know whether I'm the ants at the

12 picnic or the skunk. In any event, I offer a

13 different view to what has been just presented.

14 As my formal statement indicated, I

15 favor dividing the 9th Circuit, placing California,

16 Nevada, Arizona and Hawaii in the Southwestern

17 Circuit which will retain the 9th Circuit

18 designation, and the new Northwestern Circuit which

19 will contain the remaining states of the present 9th

20 Circuit and be designated the 12th Circuit.

21 CHAIRMAN WHITE: You would not divide

22 California?
54

1 JUDGE SNEED: I would not divide

2 California. I think that's a mistake. It was a

3 mistake in the Hruska Commission and would be a

4 mistake for you to divide it.

5 COMMISSION MEMBER: Judge Sneed, we have

6 statements from the State Bar of Hawaii and the

7 Federal District Judges in Hawaii, both of which say

8 that if the circuit is to be divided, Hawaii should

9 go with the Northwestern states. Could you explain

10 why you would take a different view about where

11 Hawaii ought to be?

12 JUDGE SNEED: Well, first, geography. 

13 It's closer aligned geographically with the

14 Southwestern part of this West Coast. Secondly,

15 much of its law is derived from California, and it

16 seems to me quite logical that it stay with

17 California. Their personal desire with alignment

18 with the Northwest springs from motives that I don't

19 really comprehend. They may be dissatisfied with

20 the performance of this circuit as it exists and

21 would prefer to go somewhere else than somewhere

22 else.
55

1 COMMISSION MEMBER: Well, one of the

2 things they say is that if they were left with

3 California and Arizona and Nevada, they would be so

4 overwhelmed by California. That if they were with

5 the Northwestern states, they would have a more

6 position of equality with those states where the

7 population is smaller and so on.

8 JUDGE SNEED: Well, they're certainly

9 overwhelmed by that standard now in spades, and they

10 have existed under it rather satisfactorily in the

11 past. But if that is their wish, as far as I'm

12 concerned, I would let them go where they wish to

13 go. Certainly, California, Nevada and Arizona have

14 enough to do. The advantage from my standpoint, and

15 the standpoint of the remaining 9th Circuit as I

16 have described it of Hawaii's presence, would be

17 that they bring two Senators. We all know that

18 Senatorial representation within a circuit is

19 terribly important in having judicial appointments

20 processed --

21 COMMISSION MEMBER: Could I, Judge

22 Sneed, ask you a question?
56

1 Your view of the reasons for splitting

2 the 9th Circuit or altering its present structure,

3 are they based primarily on questions, let's say, of

4 collegiality in the sense that it's just too many

5 judges?

6 JUDGE SNEED: Well, collegiality plays a

7 part.

8 COMMISSION MEMBER: What are your basic

9 reasons?

10 JUDGE SNEED: Basic reason for my

11 position is this, when you get a court against a

12 merge toward 40 judges, you've got an almost

13 impossible en bank situation. If there is an

14 Achilles Heel in the mega-circuit, it is in the en

15 bank process. You just can't have an en bank

16 process that will take care of the traffic in the en

17 bank evaluation that has 20 or 30 judges on it.

18 COMMISSION MEMBER: What about this 11

19 judge --

20 JUDGE SNEED: It becomes less and less

21 representative and resembles more a kind of a roll

22 of the dice.
57

1 COMMISSION MEMBER: And that's made up

2 each time at random?

3 JUDGE SNEED: That's selected each time.

4 COMMISSION MEMBER: Suppose it had a

5 longer and a more stable --

6 JUDGE SNEED: An interesting

7 proposition. I don't know whether the court would

8 ever be happy with it because it would create, as it

9 were, tiers of judges.

10 CHAIRMAN WHITE: Well, Judge, is it

11 usual that you or any other individual judge refuses

12 to be bound by this 11 man judgement?

13 JUDGE SNEED: Of course not. But being

14 happy with it and satisfied that it represents the

15 majority of the court is something else.

16 CHAIRMAN WHITE: Well, you've got a

17 precedent that you follow.

18 JUDGE SNEED: Yes. But it is a

19 precedent that does not or may not represent the

20 majority well of the court.

21 COMMISSION MEMBER: Well, what if you

22 had the full 28 compliment and had it on ballot, and
58

1 it turned out that it was half-and-half?

2 JUDGE SNEED: That could happen.

3 CHAIRMAN WHITE: Well, let's say if

4 we're --

5 JUDGE SNEED: It's unlikely, I might

6 add.

7 CHAIRMAN WHITE: Let's say there was a

8 large majority for one side and not so many people

9 on the other side, and you were the one that didn't

10 like the decision.

11 JUDGE SNEED: That's a common occurrence

12 in my life.

13 CHAIRMAN WHITE: Well, that is all you

14 were talking about --

15 JUDGE SNEED: No, no. What I'm talking

16 about is, as the court grows in size and you stick

17 with an 11 man en bank, the makeup of that 11 person

18 en bank becomes more and more unrepresentative of

19 the total court.

20 JUDGE MERRITT: If you were going to

21 make a new en bank process for the circuit, is there

22 anything in particular you would do to change the en
59

1 bank process?

2 JUDGE SNEED: The en bank log?

3 JUDGE MERRITT: The en bank process?

4 JUDGE SNEED: For me, to be perfectly

5 forthright with you, Judge Merritt, to me the en

6 bank process limits the size of circuits.

7 JUDGE MERRITT: That's what's driving --

8 JUDGE SNEED: That's what drives most of

9 my feeling about this. But the en bank process

10 which is crucial to the existence of a harmonious

11 law within the circuit, is the key to how large a

12 circuit can get.

13 COMMISSION MEMBER: And the purpose of

14 the en bank process is to keep order in the

15 decisional process --

16 JUDGE SNEED: Absolutely.

17 COMMISSION MEMBER: -- and that is not

18 occurring, you think, satisfactorily in the 9th

19 Circuit?

20 JUDGE SNEED: In my opinion, it may be

21 occurring more-or-less satisfactorily, but it

22 doesn't represent a model to me. It certainly
60

1 doesn't represent a model when we talk about 35 to

2 45 judges in the 9th Circuit.

3 COMMISSION MEMBER: Judge Sneed, the

4 materials I've read indicate that your objection is

5 probably the driving force in the split of the 5th. 

6 Would you agree with that, having --

7 JUDGE SNEED: From my experience -- and

8 I grew up in Texas, incidentally -- I would say

9 that's absolutely correct.

10 COMMISSION MEMBER: Thank you.

11 JUDGE SNEED: Now, there are other

12 reasons for my position, but as I say, the key

13 reason is this en bank problem. The size of the

14 circuit can not grow indefinitely and maintain an 11

15 man en bank. 

16 Now, let me say very candidly, I helped

17 design the en bank process of 11 people. Judge

18 Browning and I worked very close together to do

19 that. We were dealing then with 23 judges as I

20 recall -- or 21. I'm not sure which -- and it made

21 a great deal of sense to say, "well, at least we'll

22 select a number that is approximately half of the
61

1 circuit." I conducted some private drawing

2 experiments in the privacy of my chambers over a

3 long period of time, to determine whether

4 statistically that would work out. I thought it

5 did. I think as the circuit grows in size, that 11

6 man en bank becomes less and less viable.

7 COMMISSION MEMBER: Well, let me ask you

8 this. If we look at the future decades and all of

9 the circuits increase in size with this circuit

10 continuing to increase in size, the problem then

11 under your submission would be to try to come up

12 with a more satisfactory sort of mini-Supreme Court

13 for these larger circuits.

14 JUDGE SNEED: You're absolutely --

15 COMMISSION MEMBER: We've got a Supreme

16 Court which is going to resolve conflicts, but we

17 need a better process, kind of a mini-Supreme Court

18 inside these larger circuits.

19 JUDGE SNEED: I don't know whether I

20 would call it the mini-Supreme Court or some other

21 name, but I agree with you absolutely.

22 COMMISSION MEMBER: Yes, we'll call it
62

1 that, but I --

2 JUDGE SNEED: You see, to me, when we

3 confront this kind of problem, we either have got to

4 go to the mega circuits as the prior speakers

5 actually have advocated, or we have to go to smaller

6 and smaller circuits. The reason for that is case

7 filings are going to increase indefinitely. There's

8 no way to stop that.

9 COMMISSION MEMBER: But you wouldn't

10 have to do that latter if you could figure out a way

11 to have a kind of controlling mini-Supreme Court

12 within a larger circuit. If you could figure out a

13 way to do that effectively, you wouldn't have to --

14 JUDGE SNEED: Within how many circuits? 

15 One circuit?

16 COMMISSION MEMBER: Within a circuit --

17 if you could figure out a way to keep some order

18 within the larger circuit as they get bigger, then

19 you would solve that problem.

20 JUDGE SNEED: But that's a modified en

21 bank procedure in my mind.

22 CHAIRMAN WHITE: Have you, yourself,
63

1 ever voted for an en bank made up of all the judges,

2 all the active judges?

3 JUDGE SNEED: No.

4 CHAIRMAN WHITE: Why not?

5 JUDGE SNEED: Because it doesn't work is

6 the main problem. If you have 28 judges sitting on

7 one case --

8 CHAIRMAN WHITE: Well, you --

9 JUDGE SNEED: -- and that was the

10 regular en bank procedure, you wouldn't solve many 

11 conflicts within a year.

12 CHAIRMAN WHITE: Well, you had 28 judges

13 for a long time.

14 JUDGE SNEED: That's right. And as was

15 previously stated, we've never done it. But does

16 that 11 en bank not become less and less

17 representative as the size of the circuit grows?

18 COMMISSION MEMBER: I guess there's a

19 question about whether the representative nature of

20 the en bank in the electoral representative sense is

21 really the touch stone of what the en bank process

22 should be. I don't know.
64

1 JUDGE SNEED: Well, you see, we may be

2 hung up on words, and I think that's what your key

3 point is when you say en bank. En bank means the

4 entire body.

5 COMMISSION MEMBER: We're also

6 dissatisfied sometimes with what the Supreme Court

7 does, but we don't -- I mean, that may not be

8 representative either.

9 JUDGE SNEED: I know, but the committee,

10 Supreme Court, you refer to happens to be one of our

11 colleagues next door, maybe.

12 COMMISSION MEMBER: We don't think the

13 Supreme Court right now is very representative of

14 the nation because we don't have any representative,

15 and haven't had for more than a decade, from the

16 South. But we accept their decisions.

17 JUDGE SNEED: Oh, yes, so do I when I

18 don't like them.

19 COMMISSION MEMBER: Judge Sneed, on

20 these en bank calls, those that do go en bank or

21 suggested to go en bank, how many of those are

22 because of what are perceived to be, or demonstrated
65

1 to be intra-circuit conflicts between panels, and

2 how many are what Justice White referred to as the

3 court thinking the panel got it wrong?

4 JUDGE SNEED: Most of them, in my

5 opinion, are the latter.

6 COMMISSION MEMBER: The latter?

7 COMMISSION MEMBER: Judge Sneed, let me

8 ask this. What do you think of the proposal to have

9 the court of appeals here organized into

10 geographical divisions? Each division -- say, there

11 were three divisions of maybe ten judges each or

12 something like that -- within itself would have an

13 en bank process so it stayed harmonious, and then a

14 kind of super circuit-wide en bank of a more stable

15 continuing nature, to pick up on Judge Merritt's

16 notion -- the kind of little Supreme Court within

17 the circuit to keep the divisions on the same track.

18 How do you react to all of that?

19 JUDGE SNEED: Well, my initial reaction

20 is it would work, but it's almost the equivalent of

21 splitting the circuit.

22 JUDGE RYMER: If you separate the
66

1 concept of the court of appeals from the circuit,

2 it's not because you retain the advantage of

3 administrative flexibility of the circuit with

4 smaller operating units --

5 JUDGE SNEED: The administrative

6 apparatus of the circuits grows and shrinks or is

7 small, depending on the size of the circuit and the

8 nature and extent of its business. So, as far as I

9 perceive it, you might as well have three circuits

10 rather than this --

11 JUDGE RYMER: Well, is your difficulty

12 with the size of the circuit or with the size of the

13 court of appeals?

14 JUDGE SNEED: My position basically,

15 aside from factors relating to the volume of

16 business, involvement of staff, et cetera --

17 essentially is that an en bank process as we know it

18 simply doesn't work as the circuit grows and grows

19 in members. Now, Judge Merritt has offered an

20 alternative to that, but it seems to me it verges

21 closely -- and so has Professor Meador -- verges

22 closely to dividing the circuit.
67

1 Now, I'm perfectly willing, as I

2 mentioned in my paper, to live with a very large

3 circuit but I'm not happy to live with one with 40

4 judges and an 11 man en bank. If the en bank gets

5 larger, it seems to me becomes unwieldy. Now that,

6 really, is the bedrock of my opposition. I would

7 favor the unlimited en bank. I favored the growth

8 of the circuit up to its present level. I do not

9 favor expanding its growth to 35 and 40, that's with

10 our en bank structure. That's the reason I think

11 fundamentally, that the circuit ought to be divided.

12 CHAIRMAN WHITE: Don't you think that

13 your idea that you would divide the circuit doesn't

14 solve --

15 JUDGE SNEED: It doesn't solve all of

16 it. It solves it for a while and that's --

17 CHAIRMAN WHITE: Well, for a while. 

18 JUDGE SNEED: For a while.

19 CHAIRMAN WHITE: It leaves California

20 practically alone.

21 JUDGE SNEED: No. I think California

22 would have, under my preferable alignment, eight
68

1 Senators and would not be alone. However, I do, in

2 my papers --

3 CHAIRMAN WHITE: How many judges would

4 California have to have to handle just its own

5 cases?

6 JUDGE SNEED: I wouldn't hazard a guess

7 at this point, but I would say it will be somewhere

8 between 15 and 20.

9 CHAIRMAN WHITE: And then --

10 JUDGE SNEED: Ten at a minimum.

11 CHAIRMAN WHITE: So, you would have the

12 same problem with 11 man en banks?

13 JUDGE SNEED: It could be increased,

14 perhaps, to 15 if it was necessary but at some

15 point, this relationship between the size of the

16 court and the en bank process requires an

17 adjustment.

18 CHAIRMAN WHITE: Well, I mean, it

19 doesn't sound to me like the way you would split the

20 circuit doesn't even solve your --

21 JUDGE SNEED: It's a compromise, Justice

22 White. It's a compromise.
69

1 CHAIRMAN WHITE: It's a compromise but

2 it doesn't do much for your basic objection.

3 JUDGE SNEED: It delays it for a few

4 years.

5 COMMISSION MEMBER: It looks like to me

6 that your basic objection being what it is about

7 resolving the en bank problem isn't all just to

8 change the en bank process. I mean, you can imagine

9 the stability of the law in the United States if we

10 made up the Supreme Court each time, new for each

11 case drawing on let us say court of appeals'

12 judgement or something.

13 JUDGE SNEED: Oh, yes, I know.

14 COMMISSION MEMBER: It would be a

15 disaster.

16 JUDGE SNEED: Yes.

17 COMMISSION MEMBER: I mean, we wouldn't

18 have any stability in the law of the United States.

19 JUDGE SNEED: I understand that and

20 that's part of my concern.

21 COMMISSION MEMBER: Yes, okay.

22 JUDGE SNEED: Not only that but, as I
70

1 say, the chance of the en bank panel not really

2 representing the majority of the court.

3 COMMISSION MEMBER: Well, I'm not sure

4 that it's the representative part of it that's the

5 problem. It's the instability of it.

6 JUDGE SNEED: Either way you phrase it.

7 COMMISSION MEMBER: Judge Sneed, excuse

8 me, but when you came on the court --

9 JUDGE SNEED: Twenty-five years ago.

10 COMMISSION MEMBER: Sir?

11 JUDGE SNEED: Twenty-five years ago.

12 COMMISSION MEMBER: Well, the court sat

13 en bank to hear --

14 JUDGE SNEED: Yes. When we jumped from

15 the 15 we were at one time when I first came on the

16 court up to, I think it was 23, we decided on the 11

17 man en bank.

18 COMMISSION MEMBER: When you reached 23?

19 JUDGE SNEED: Right.

20 COMMISSION MEMBER: How did the court

21 work as a court of 15 with the en bank process?

22 JUDGE SNEED: Very well. Very simple. 
71

1 Everybody was there. It really served the en bank

2 purpose.

3 COMMISSION MEMBER: And did they take

4 any number of cases for en bank decision?

5 JUDGE SNEED: That was very early in my

6 career, but they were taking them when I came on. 

7 We took some thereafter, but it was a closer court. 

8 I mean, we were more closely bound. We saw each

9 other more frequently. We knew exactly where each

10 other stood. Now, we know where each other stands

11 but there's so many different people to know where

12 they stand. It's a much more mixed bag in that

13 sense.

14 One other factor that I would mention --

15 and I say this very candidly -- the judges

16 themselves on this court are really doing less and

17 less of their own work. I am, and I think every

18 other judge is. We're relying more and more on

19 staff for various reasons: the volume of cases, the

20 structure, and so on.

21 CHAIRMAN WHITE: Well, thank you, Judge. 

22 It's been an interesting discussion.
72

1 JUDGE SNEED: The skunk at the picnic

2 will withdraw.

3 CHAIRMAN WHITE: Oh, no. Oh, no. Just

4 think of what a skunk skin was worth.

5 Judge Schroeder?

6 JUDGE SCHROEDER: Good morning. I am

7 Mary Schroeder. My home is in Phoenix, Arizona. 

8 I am here because I am next in line to

9 serve as Chief Judge of this circuit. I would like

10 to take this opportunity to welcome those of you who

11 have not been here before to our building here in

12 San Francisco. Judge Sneed, Judge Hug and I spent

13 seven years overseeing the reconstruction of our

14 1905 building and the construction of a brand new

15 structure inside of it. So that, we have a

16 building that was designed in the 19th Century to

17 carry this court through well into the 21st Century. 

18 It is my hope that it will be a court that is not

19 divided.

20 I have been a very close observer of the

21 administration of the circuit at least since the

22 time that Justice Kennedy was appointed to the
73

1 Supreme Court and I realized that I was in the line

2 of succession to be Chief Judge. I have known all

3 of the chiefs extremely well who have served during

4 my period of time on the court since 1979. I think

5 it is not at all inevitable that a court of this

6 size should succeed as well as it has. I believe

7 that its success in adjusting, in innovating, in

8 meeting the demands of the present and the future is

9 due, in very large part, to the outstanding

10 leadership that we've had.

11 COMMISSION MEMBER: The one thing that

12 there seems to be some general agreement on is that

13 the en bank process for a court of this size is a

14 difficult thing to arrange satisfactorily. And that

15 the 11 person rotating, random court is not entirely

16 satisfactory, is that right?

17 JUDGE SCHROEDER: Well, that was the

18 concern in 1979 when the limited en bank was

19 adopted. It was the lynch-pin of the courts not

20 being divided at that time. 

21 My experience -- and I have watched it

22 closely. It is my not always enviable position in
74

1 this court to be what is called the En Bank

2 Coordinator. That is, I am the referee and have

3 been for some six or seven years of the en bank

4 process, up until the time a case actually goes en

5 bank before 11 judges. I think you should

6 understand that the en bank process incorporates a

7 very lively debate among all of the judges as to

8 whether or not a case should go en bank. The vote

9 is taken and it is done in a quite deliberative

10 fashion. The court understands, I believe, that

11 when the case goes en bank and the 11 judges are

12 drawn -- and of course, the chief judge is a member

13 of each of the en bank courts -- that then that 11

14 judge court hears further argument, has further

15 deliberations. 

16 It has been my experience that the court

17 has treated the en bank decisions with great

18 respect. We understand that this is an adjudicatory

19 process in which there are a lot of different kinds

20 of input that goes into the decision. I believe

21 that the fears that this was going to be unstable

22 and unpredictable have not really been borne out,
75

1 and that most of the positions are very well debated

2 and represented on the en bank courts.

3 COMMISSION MEMBER: Wouldn't it be a

4 more stable situation if you, say, had X number of

5 members of an en bank court that were the most

6 senior, active judges of the court, or the most

7 junior -- but you know, where it stays like it is

8 for a while, where the changes that occur are slow? 

9 You've got the same kind of problem, in

10 a way, that the Supreme Court has. If you make a

11 lot of changes kind of at random in the Supreme

12 Court, you're going to get a lot of instability in

13 the law. But if the court remains constituted in a

14 pretty definite way over a longer period of time,

15 you tend to get some stability. Now, I'm just

16 suggesting, couldn't you do the same thing? 

17 Wouldn't that be more effective?

18 JUDGE SCHROEDER: Well, we did debate

19 having a fixed panel that was representative of the

20 three baby judges, the three most senior judges and

21 some in-between. We opted against that because we

22 thought that it was better in terms of collegiality
76

1 and in respect of the process itself, that everyone

2 had an opportunity to participate in the same way. 

3 I think the view of the overwhelming majority of the

4 judges is that it has worked out very well. No one

5 has proposed that that system be changed. So, I

6 believe that the system has worked well and has a

7 great deal of respect by the judges.

8 CHAIRMAN WHITE: You're quite sure that

9 this 11 person en bank does not create instability?

10 JUDGE SCHROEDER: I don't think that

11 that has created instability. I believe, as I said

12 in my statement, that if a court has divisions among

13 it, it is because of the differences of point of

14 view; the social outlook, perhaps, of the judges. 

15 That can happen in a court of any size.

16 I came from a court of nine judges to a

17 court which very soon became 23 judges and then 28. 

18 I don't want to go back to a small court. While I

19 speak only for myself, we have a great many

20 backgrounds of judges on our court. That's one of

21 the wonderful things about the court. We have

22 several who have come from small state courts into
77

1 the federal system, and I don't think that any of

2 them want to go back to a small court. There are

3 great strengths in having many colleagues and being

4 able to share your views and have the input of the

5 views of (indiscernible) colleagues.

6 I would like the Commission truly to

7 take away the understanding that this court has

8 survived disasters that no other court has had to

9 face. Some of them have been of human origin and

10 some of them not of human origin. But we have, for

11 the past three or four years, had a great number of

12 vacancies which has made things very difficult. We

13 have survived an earthquake that left us homeless

14 for years here in the tenderloin of San Francisco. 

15 We have had, over the past decades, to face repeated

16 charges that we should be divided and have had to

17 cope with a number of different proposals for

18 division that have been very distracting. 

19 I'm very delighted that this Commission

20 has been appointed and I hope that you will help put

21 those kinds of distractions to rest for my chief

22 judgeship.
78

1 COMMISSION MEMBER: Would you settle for

2 most of it, Judge Schroeder?

3 JUDGE SCHROEDER: Most of it at least. 

4 I'm still sending Judge Hug vitamin pills and I hope

5 he's taking them.

6 My concern is for the future. We are

7 seeing communications change very rapidly. I

8 believe the next frontier is not in changing the

9 structure of the appellate courts but in adopting to

10 the changes that we are seeing in technology. We're

11 playing catch-up. We're just beginning to

12 understand how to use databases and how to get at

13 the decisions of other courts quickly, how to know

14 what issues are pending within all of our courts so

15 that we can be prepared better to decide those

16 issues. I have learned from watching this court

17 that the courts improve through a process of

18 evolution and adjustment. I think that the 9th

19 Circuit has been the leader in this.

20 COMMISSION MEMBER: Do you think this

21 video conferencing methodology as it comes on will

22 likely be the wave of the future?
79

1 JUDGE SCHROEDER: Oh, I think we will

2 use it to a great extent. I'm not a believer in

3 doing away with face-to-face oral arguments with a

4 lawyer standing before a court. I certainly believe

5 that judges should get together on a face-to-face

6 basis which we do, quite frequently. But I think

7 that in the future, we will not be dependent on air

8 travel in order to have some kind of face-to-face

9 communication. The 2nd Circuit is using it quite

10 extensively now.

11 COMMISSION MEMBER: -- use it, but the

12 judges still travel but the lawyers don't.

13 JUDGE SCHROEDER: The lawyers.

14 COMMISSION MEMBER: But for it to be

15 fully effective in certain cases, it needs to be

16 judges as well as lawyers.

17 JUDGE SCHROEDER: Oh, yes, and we're

18 only a step away --

19 COMMISSION MEMBER: Do you think that's

20 what's going to happen.

21 JUDGE SCHROEDER: Oh, I think so. And I

22 think we're only a step away from doing that for our
80

1 motions. For many years, we did motions by

2 telephone. If you can do it face-to-face on a

3 screen, it's an improvement.

4 COMMISSION MEMBER: What does that add

5 to the equation about the structure of courts of

6 appeal if the wave of the future is a heavier use of

7 video conferencing say, 10, 15, 20 years hence, only

8 the most important cases are argued face-to-face,

9 the rest of them are dealt with in that way? What

10 do you think that means for the structure of the

11 courts of appeal? Not just the 9th Circuit, but

12 other courts as well?

13 JUDGE SCHROEDER: Oh, I don't think it's

14 inevitable that that is what will happen. For

15 example, courts now nationwide are deciding 30 to 40

16 percent of the cases -- the federal appellate courts

17 without oral argument. I mean, I see the capacity

18 for video as permitting there to be argument in some

19 of those cases and so you'll have a better quality

20 decision. I don't think it means that we're going

21 to do away with or diminish the quality of human

22 participation in face-to-face --
81

1 COMMISSION MEMBER: So you don't really

2 think it means anything in respect to the structure

3 of the courts of appeal?

4 JUDGE SCHROEDER: No, except I think

5 there's great potential for greater efficiency and

6 for greater collegiality.

7 CHAIRMAN WHITE: I suppose that if you

8 used the video technology, it might substitute for a

9 lot of the staff work.

10 JUDGE SCHROEDER: That is my hope,

11 Justice White.

12 CHAIRMAN WHITE: It is?

13 JUDGE SCHROEDER: I think that most of

14 the reliance on staff that has come to pass that

15 Judge Sneed referred to, which is certainly not

16 unique to this court, but is the fact that we've

17 gotten so good at producing documents. I think if

18 we can get a little more face-to-face human contact

19 --

20 CHAIRMAN WHITE: And I suppose it might

21 even get into your calendar work, the category of

22 cases that has just number one weight?
82

1 JUDGE SCHROEDER: Yes, I think that

2 could happen too.

3 CHAIRMAN WHITE: Especially if they are

4 counseled.

5 JUDGE SCHROEDER: If they're counseled,

6 yes. I believe that we should offer some form of

7 argument to as many counseled cases as we can.

8 So, in conclusion, I would simply like

9 to say that this court has been and will continue to

10 be, if I can have anything to do about it, an

11 extraordinarily resilient institution. It deserves

12 positive recognition for that. It has overcome

13 obstacles no other court within memories had to face

14 and none of these problems have had anything to do

15 with structure and none will be solved by

16 restructuring the geographical alignment.

17 I thank you very much.

18 COMMISSION MEMBER: May I ask one more

19 question?

20 JUDGE SCHROEDER: Yes.

21 COMMISSION MEMBER: If Congress were

22 minded to divide the circuit, how would you
83

1 recommend that it be divided?

2 JUDGE SCHROEDER: Well, there's really

3 no good answer to that. The most often proposed

4 split is the one that Judge Sneed addressed, which

5 is to split off the Northwest and leave the four

6 states. There are problems with that. Hawaii

7 doesn't want to be a part of it and California has

8 never had sufficient judges to decide its own

9 caseload. We would immediately have a court that

10 would have to add judges in order to just cope with

11 the existing caseload.

12 So, I don't think there is a very

13 acceptable split from the standpoint of judicial

14 administration. Perhaps the most politically

15 acceptable one would be just (indiscernible) the

16 Northwest, but I certainly hope that will not

17 happen.

18 CHAIRMAN WHITE: Thank you, Judge.

19 JUDGE SCHROEDER: Thank you.

20 JUDGE THOMPSON: Good morning.

21 CHAIRMAN WHITE: Good morning, Judge.

22 JUDGE THOMPSON: My name is David
84

1 Thompson and I am a judge of the 9th Circuit Court

2 of Appeals.

3 CHAIRMAN WHITE: Yes.

4 JUDGE THOMPSON: Like the trial lawyer

5 said when he was addressing the jury, "I don't mind

6 if you look at your watches, but if you start

7 putting them up to your ear, I'll know I'm in

8 trouble."

9 We have 28 slots on our court, 21 are

10 filled. We have seven vacancies and we have the

11 work of 17 dedicated senior judges that help us. 

12 Our judges come from each state, counting the

13 seniors and the actives, of all of the nine western

14 states. We have male, female, Hispanic, African

15 American, Asian, Caucasian. Some of our judges were

16 trial lawyers, some were career judges, some have

17 been law professors. We have this tremendous

18 diversity which I suggest is a benefit and one which

19 comes primarily from a large circuit.

20 If you recall your days as a trial

21 lawyer when you were faced with witnesses on the

22 other side of the case who were aligned by kinship
85

1 or employment or association, remember the trial

2 lawyer saying that "the farmer and the farmer's wife

3 and the hired hand are all one witness." And

4 indeed, we used to view them that way. In a smaller

5 circuit where you have a more unified viewpoint,

6 background, experiences, the tendency is that you

7 may well get a one judge appellate banner. The

8 likelihood of that happening in the large circuit is

9 greatly diminished.

10 We've talked about the en bank process

11 in the 9th Circuit and whether it is representative

12 and whether it's consistent. I think the thing you

13 should bear in mind is that in 1997 in the 9th

14 Circuit, there were 8,500 case terminations. Over

15 the years, there have been 30 to 35 en bank votes. 

16 Typically 15 to 20 cases go en bank. But the law of

17 this circuit is made by the three judge panels as it

18 is in any circuit. 

19 With an 11 judge en bank court, let's

20 suppose we had a circuit with 11 circuit judges. 

21 You had a decision by the en bank court of 11

22 judges. Do you say we have achieved a purity of
86

1 justice as a result of this? All of our judges have

2 participated. We have this marvelous decision. 

3 Suppose you have 28 judges and your en bank court is

4 11. Has the decision become less pure? It's still

5 an 11 judge decision. How has that decision -- the

6 purity of justice been tainted by the fact that 11

7 judges have signed on to it?

8 JUDGE MERRITT: Can I suggest that there

9 is a problem.

10 JUDGE THOMPSON: Yes, sir.

11 JUDGE MERRITT: That is, if the next

12 decision in the same general field is going to be by

13 a court of 11 different judges, you are likely not

14 to be able to maintain much stability in the law of

15 the circuit. No one would suggest, I suppose, that

16 the Supreme Court of the United States be

17 reconstituted every three months or at each case for

18 the simple reason that you would not maintain

19 stability very well. It would seem to me that

20 you've got the same problem with an en bank process

21 which is supposed to maintain stability of the

22 circuit. You've got the same problem with an en
87

1 bank process that reconstitutes the court each time

2 for each case.

3 JUDGE THOMPSON: That's absolutely

4 correct. The only fallacy in the whole thing, Judge

5 Merritt, is it hasn't worked out that way. 

6 In our 9th Circuit, so long as we have

7 had the 11 judge en bank court, we have not had

8 another 11 judge court, en bank court, overruling

9 the earlier 11 judge en bank court. Experience and

10 the facts are that there has been consistency as a

11 result of our 11 judge en bank court, even though

12 theoretically, the problem you suggest, sir, is

13 absolutely there.

14 JUDGE MERRITT: What would you say about

15 the 11 judge en bank if the court grew to 40 active

16 judges?

17 JUDGE THOMPSON: I would say it's the

18 same. If we're looking for purity of decision, of

19 justice, you have the same justice because you still

20 have the 11 judges deciding it. If we are looking

21 for a decision that is representative of the judges

22 within the circuit, it is less representative. But
88

1 the challenge to the circuits from your own

2 materials, as I understand it, is to dispose of the

3 caseload expeditiously and effectively, consistent

4 with fundamental concepts of fairness and due

5 process. I submit that would be achieved through

6 the 11 judge court.

7 There are other institutions in our 9th

8 Circuit. We have talked here about the circuit

9 court, but let me mention briefly our Conference of

10 Chief District Judges in our circuit. This

11 conference meets twice-a-year. Judge Browning has

12 been on that conference. Through it, there is an

13 exchange of ideas and there is an exchange of

14 expertise from this wide area. All of the

15 districts in this 9th Circuit participate. The

16 wider the sampling, the greater the chance for

17 innovation which has been the case.

18 But there's another thing. Those of you

19 who may have practiced trust law would be familiar

20 with the spray or the sprinkling trust. You know,

21 the theory like the garden hose. You spray the

22 water over to the bare part of a lawn where it's
89

1 needed. So, on the trust, you take the benefits and

2 you sprinkle them, spray them to the beneficiaries

3 where it's needed. Here in our 9th Circuit, because

4 of the number of district judges we have, we can

5 spray or sprinkle judges to the dry part of the lawn

6 where they're needed. If there's a death or a

7 resignation in a particular district, or a high

8 volume of cases, we can take judges from an area

9 that's not so heavily impacted, and spray and send

10 judges into the area that needs it. The large

11 circuit can do that.

12 CHAIRMAN WHITE: It seems to me, didn't

13 I read that this spraying comes from the central,

14 mostly?

15 JUDGE THOMPSON: From the central

16 district of California?

17 CHAIRMAN WHITE: Yes.

18 JUDGE THOMPSON: It's got the greatest

19 water power and the biggest hose.

20 CHAIRMAN WHITE: Yes. And yet, the

21 caseload of the Central District is increasing the

22 most rapidly.
90

1 JUDGE THOMPSON: Yes, it is. If you

2 think of the sprayer and the place from where the

3 judges come, they don't come from the Central

4 District. They are put into the Central District. 

5 The Central District is the district that needs the

6 judges.

7 CHAIRMAN WHITE: All right.

8 JUDGE THOMPSON: For example, we have

9 another institution is our Conference of Chief

10 Bankruptcy Judges. They have the same ability to

11 exchange information and to share judges. But they

12 have a unique program, the Workload Equalization

13 Program. By this program, a bankruptcy judge in the

14 Central District, Justice White -- and perhaps Chief

15 Judge Mund might talk more about this -- will have a

16 simple Chapter 7 distribution case. You know,

17 there's not much for a bankruptcy judge to do in a

18 Chapter 7 case unless there's an adversary

19 proceeding, a question of dischargability. Now we

20 have a case within a case. 

21 What the Central District has been able

22 to do is to transfer these adversary proceedings,
91

1 the case-within-a-case, to Idaho or to Alaska, to

2 districts that are not as heavily impacted. The

3 transferee judge then handles the pre-trial motions,

4 all of the discovery, and will actually conduct the

5 trial. He will come into the Central District and

6 try the case. The Southern District of California

7 in San Diego has done the same thing. You can do

8 that in a large circuit. If you split the circuit,

9 we can't.

10 COMMISSION MEMBER: Nobody's really

11 complaining about the circuit nature of large

12 circuits. I haven't heard anybody say that the

13 problem is not the court of appeals. It's the

14 circuit nature of it. Nobody says that. Everybody

15 says the problem is the court of appeals. When

16 somebody points to a problem, they all say it's the

17 court of appeals. They don't say it's anything

18 else, do they?

19 JUDGE THOMPSON: Well, there are no

20 other problems. I agree with you, Judge Merritt. 

21 If the only problem is the court of appeals, then

22 I'm very much relieved because I don't see a problem
92

1 there.

2 COMMISSION MEMBER: Good going.

3 JUDGE THOMPSON: Thank you, sir.

4 COMMISSION MEMBER: Thank you.

5 (Recess.)

6 CHAIRMAN WHITE: Ladies and gentlemen,

7 we're running a little bit behind. We're going to

8 let you know when your time is up and maybe we'll

9 even give you notice that you've only got two

10 minutes.

11 Who is -- oh, I know who it is, Cathy

12 Catterson. I understand that you are the single

13 person who administers the entire circuit.

14 MS. CATTERSON: During my lunch hour, I

15 do that.

16 CHAIRMAN WHITE: Well, anyway, go ahead. 

17 I appreciate that talk we had some months ago.

18 MS. CATTERSON: Thank you. Thank you,

19 Your Honor.

20 My name is Cathy Catterson. I am the

21 Clerk of Court for the 9th Circuit. I have been so

22 since 1985. Prior to that, I worked in a variety of
93

1 staff positions in the 9th Circuit since 1979.

2 In starting, I don't want to really

3 repeat all the things that have been said this

4 morning. I really would like to respond to

5 questions. There may be a few things I can hit on

6 from my perspective as the court manager.

7 Before doing so, I really would just

8 like to say to the Commission, I think you have a

9 tough job. There's a lot to be done. There's a lot

10 of information out there and I wish you well in your

11 endeavors.

12 The other thing, as was mentioned by

13 Chief Judge Hug and other judges of the court, is

14 that we open our files to you. We have a lot of

15 information, happy to share it with the research

16 staff that's working on the project. We invented

17 the wheel a few times around here and have learned

18 from our mistakes, learned from our successes and

19 would really be happy to share that information with

20 the Commission.

21 You have my statements. You have the

22 report that the court prepared and submitted to the
94

1 Commission. I would just like to hit on a few major

2 items and then really try to respond to your

3 questions.

4 The one thing that has been mentioned is

5 that we have an excellent court staff, from my

6 perspective. I think one of the challenges in a

7 large court is finding that balance between what's

8 the role of the judges and the role of the court

9 staff. I think we've tried to achieve that. We've

10 worked together as a team in making that happen.

11 I would like to comment briefly on

12 really, I guess, four topics. One is the

13 Administrative Units Plan, sort of the history of

14 that and how it evolved, particularly with regard to

15 the court staff. Secondly, the use of technologies

16 -- all of these topics have really been referred to

17 already. Third, a little bit about the statistics

18 of the court of appeals and then finally, maybe a

19 little bit about sort of the innovations that the

20 court has evolved over the years, particularly

21 through a long-range planning process.

22 The Administrative Units Plan, I think
95

1 as you know, evolved in response to the Section 6

2 report in 1978, the omnibus judge (indiscernible). 

3 When you go back into our files, it's somewhat

4 interesting to read how that came about. I think in

5 response to a comment by then Chief Justice Burger

6 that we should divide into these administrative

7 units. What's interesting to know is that prior to

8 doing that, we did try this regional calendaring

9 experiment. I might add that that was actually

10 recommended by then Chief Judge Browning, which goes

11 to show you that he's always willing to try

12 something.

13 COMMISSION MEMBER: And he may be wrong.

14 MS. CATTERSON: The experiment, as

15 mentioned, was tried for the six months. We have a

16 lot of information in the files showing how the

17 panels were drawn, how the caseload was supposed to

18 be balanced among and between the various regions,

19 what the goals of the program were. As noted, it

20 was deemed to be not a particularly successful

21 experiment.

22 COMMISSION MEMBER: How did you draw the
96

1 panels? Did you set three divisions of the court up

2 on a territorial basis?

3 MS. CATTERSON: Yes, it was

4 geographically based. But what the records show --

5 and I must say, I was not here at the time. I was

6 just coming to the court in 1979. But what the

7 records indicate is that there was an attempt to

8 balance. So, there was, at some points as it was

9 first proposed, Las Vegas was going to the south at

10 some points, and --

11 COMMISSION MEMBER: You're trying to get

12 the numbers right so you can take care of the

13 caseload?

14 MS. CATTERSON: Correct, right.

15 COMMISSION MEMBER: You mentioned

16 experimentation. I don't believe you ever

17 experimented with subject matter panels though, did

18 you?

19 MS. CATTERSON: There was a number of

20 attempt to do so, but no, we have not. I think our

21 issue coding has really been -- in our trying to put

22 cases together that raise the same issues is more of
97

1 a response to subject matter paneling, or subject

2 matter assignments.

3 COMMISSION MEMBER: So, we don't know

4 whether that would work or not?

5 MS. CATTERSON: I think the court has

6 discussed it on numerous occasions and has not

7 embraced the idea.

8 COMMISSION MEMBER: But you still don't

9 know whether it would work, do you?

10 MS. CATTERSON: Correct.

11 COMMISSION MEMBER: You haven't tried,

12 right?

13 MS. CATTERSON: Well, correct, yes. In

14 fact, that was a number of times Judge Browning has

15 proposed that as well in certain limited areas that

16 we attempted to try it.

17 The Administrative Units -- but as

18 indicated, the experiment did not continue. What it

19 did demonstrate was that there was an imbalance

20 among the cases, among the regions of the circuit,

21 in terms of the age of cases. That evolved into

22 trying to sort of schedule panels so that the age of
98

1 the cases would remain the same.

2 JUDGE RYMER: Was there any

3 administrative reason why the court of appeals could

4 not be organized either geographically in divisions,

5 or in divisions that would float -- that is, that

6 would not be geographically based, but would simply

7 be composed of, pick a number, nine people, 11

8 people, 12 people, whatever. Is there any

9 administrative reason why that could not be

10 supported as the circuit is presently supported?

11 MS. CATTERSON: Administratively, no. I

12 think you could do it. But it was interesting as

13 the plan was first adopted, the Administrative Units

14 Plan, it was sort of the reverse. Under the plan

15 when it was then adopted in 1980 is that we were

16 going to have phases of this plan. The conclusion

17 was sort of the reverse that the judges should stay

18 together for adjudicative purposes, but we should

19 divide the staff. I think at that point, we've said

20 we're going to do phase one where we send a few

21 people to the south and one person up north. But

22 then we're going to consider phase two and see how
99

1 more staff could be decentralized. 

2 I think with the introduction of

3 technology that it's recognized, at least as long as

4 the court remained adjudicatively united, there was

5 really no reason to do that other than, I mean, they

6 are administrative units. The staff that are in the

7 administrative units really are there primarily to

8 provide administrative support. But to answer your

9 question, I think, yes, we could centrally

10 administer three different -- in my judgement would

11 be almost three different courts of appeals. I

12 think particularly with the changing growth of

13 technology, electronic case files and the like, to

14 some extent the use of video conferencing would aid

15 in that.

16 But as I point out, I think we've kind

17 of gone almost a little bit of 180 degrees in the

18 Administrative Units Plan in that now we're talking

19 about -- or at least what I'm hearing the proposal

20 is to split up the judges and keep the staff

21 together.

22 JUDGE MERRITT: About the en bank
100

1 process, do you know about how many en bank

2 petitions you get and how many votes you take where

3 a judge suggests an en bank vote? Do you know?

4 MS. CATTERSON: Judge Merritt, I believe

5 we get in the neighborhood of maybe about more than

6 1,000 en bank suggestions a year. I believe --

7 Judge Schroeder knows better than I and the judges

8 of the court -- there may be votes in the

9 neighborhood of between maybe 35 to 50. There's

10 also a lot of other discussion going on prior to the

11 vote, you know, recommendations.

12 COMMISSION MEMBER: Is it your

13 perception that the votes are often -- of course,

14 you're taking all of the active judges voting, the

15 votes are often close in the en bank, whether to en

16 bank a case or not?

17 MS. CATTERSON: I am not privy, Judge

18 Merritt, to all of that, but my impression is is

19 that they're not all that close. There may be a few

20 cases in which they are close.

21 COMMISSION MEMBER: Do you know whether

22 there are many cases that fail by two votes or three
101

1 votes where, you know, you've got seven or eight or

2 nine people who voted for en bank and it fails?

3 MS. CATTERSON: I really don't know that

4 that well, to be honest, Judge.

5 CHAIRMAN WHITE: You have two minutes

6 left.

7 MS. CATTERSON: Technology, I think

8 we've heard a little bit about that.

9 Statistics, I would just urge the

10 Commission when we're looking at all those median

11 times -- I think that vacancies on the court have

12 had a significant impact on the court. I think

13 through the efficiencies that have been referred to

14 earlier by our conference and oral argument, the

15 ability to sort of attempt to keep up. But the

16 delay is in the period of awaiting from completion

17 of rethink to getting an argument date. I think

18 when you look at the statistics, you will see that

19 that is supported by it.

20 But I would say that statistics -- I

21 mean, I always hear you could find a good statistic

22 to present any argument if you could find it, but I
102

1 would tell you to look carefully. As Judge Hug

2 pointed out, if we had had our full compliment, I

3 think the court would have literally been able to

4 reduce its backlog. 

5 The other just one point is with regard

6 to the caseload of the court. Justice White spoke

7 about our 1, 3, 5, 7, and 10 process. Where we have

8 seen the growth in the caseload of the court is in

9 the one weight category. The 3, 5, 7 and 10 have

10 remained with a one or two percentage increase over

11 the last five, ten years.

12 CHAIRMAN WHITE: How many are the lowest

13 weight category -- how many of them are counseled?

14 MS. CATTERSON: Of the one weight

15 screening? Molly Dwyer, who is our chief deputy

16 would know better, but I would say about 80 to 85

17 percent are pro se cases.

18 CHAIRMAN WHITE: I see. All right.

19 COMMISSION MEMBER: What percentage of

20 your cases get put in the highest category?

21 MS. CATTERSON: The 10 weights are very

22 much a limited blockbuster, as we call them. Maybe
103

1 20 cases a year. The bulk of our cases, about

2 another third of the cases, are in the 3 weight

3 category. About 15 to 20 percent are in the 5

4 weights; five to seven percent in the 7 weight

5 category.

6 COMMISSION MEMBER: Ms. Catterson, I

7 know your time is up, but does your office provide

8 the staff attorneys for the court?

9 MS. CATTERSON: Yes, Your Honor.

10 COMMISSION MEMBER: How many are there?

11 MS. CATTERSON: I believe there are -- I

12 think we are authorized -- I believe the number is

13 about 42, 48 -- 48 authorized positions. We are

14 able to sort of fluctuate that number a little bit

15 because the court has a policy of having a five year

16 cap. So that means that we have the ability to sort

17 of hire newer people at lower salaries. Therefore,

18 we can more-or-less get more bang for our buck.

19 COMMISSION MEMBER: Does the total

20 number continue to go up annually or periodically?

21 MS. CATTERSON: It's a national formula

22 that is tied into the caseload of the court of
104

1 appeals.

2 COMMISSION MEMBER: Thank you.

3 CHAIRMAN WHITE: Thank you.

4 Mr. Circuit Executive?

5 MR. WALTERS: Thank you, Justice White.

6 My name is Greg Walters. I am the

7 Circuit Executive for the 9th Circuit. I promise to

8 keep my remarks brief.

9 As you know, my office has submitted

10 voluminous materials to the Commission and I won't

11 try and reiterate what is in all of those. I'd like

12 to focus my remarks on three simple facts and these

13 are:

14 (1) That the 9th Circuit is, in fact,

15 much more than the court of appeals.

16 (2) That the judges and the staff of

17 the 9th Circuit do not want to see this circuit

18 split.

19 (3) That this circuit has a long

20 tradition of experimentation, innovation and

21 leadership that is thriving and should serve as a

22 model for growth in the rest of the Judiciary.
105

1 As you know, there are 28 active and 17

2 senior judges, but there are also 99 active district

3 judges in this circuit and 52 senior judges. In

4 fact, there are 53 senior judges now with Judge Bill

5 Browning taking senior status a week or so ago. In

6 addition to that, there are 75 bankruptcy judges and

7 70 magistrate judges -- almost 5,000 employees in

8 the Clerk's Office, Probation and Pre-trial Offices,

9 and Defender's Office in this circuit. In total, we

10 have 342 judicial officers out here hearing 369,000

11 cases. 

12 That's a lot of judges. That's a lot of

13 cases. That's a lot of judges handling a lot of

14 cases. But the fact of the matter is that that

15 won't change a bit if you split this circuit. If we

16 divide it into two or into three sections, we will

17 still have 342 judicial officers handling 369,000

18 cases. The only difference that we will have if we,

19 in fact, divide this circuit along those lines is

20 that we will have two or three administrative units

21 supporting those judges rather than the single and

22 coherent home that we have now. 
106

1 I think that would be a mistake and I

2 think it would be an expensive mistake. I've

3 calculated and submitted to you my estimate that the

4 start-up cost of establishing another circuit is

5 going to be somewhere in the neighborhood of $42

6 million. It's going to cost at least $4 million

7 dollars, maybe a little bit more than $4 million,

8 every year thereafter to run a second circuit in

9 terms of duplicative expenses. I think that's an

10 expense that is not necessary and should go away.

11 Let me turn to my second point which is

12 that the judges of this circuit do not want to see

13 this circuit split. You've heard that really,

14 amongst the circuit judges, there's just a handful

15 of judges that would like to see the circuit split. 

16 The same kind of relationship is true amongst the

17 district judges, magistrate judges and bankruptcy

18 judges. In fact, I think even stronger. The

19 Judicial Council of this circuit, which is our

20 governing body, the body that I actually work for,

21 voted in April to oppose any effort to split the

22 circuit. They reconsidered that again in May and
107

1 voted again to oppose any effort to split the

2 circuit.

3 CHAIRMAN WHITE: What was the vote?

4 MR. WALTERS: There was one vote in May,

5 Justice White, that disagreed with that position. 

6 There were nine voting members on the council, so

7 the vote was eight to one.

8 COMMISSION MEMBER: How many of the

9 members of the council are there?

10 MR. WALTERS: There are nine. We have a

11 nine member council, four circuit judges, four

12 district judges and the chief judge are the voting

13 members. We also have senior district judges,

14 magistrate judges, and bankruptcy judges. They do

15 not vote.

16 COMMISSION MEMBER: There have never

17 been any complaints, as far as I know, about the way

18 the circuit itself is administered. All of the

19 suggestion has to do with the court of appeals,

20 doesn't it?

21 MR. WALTERS: That is certainly my

22 viewpoint.
108

1 COMMISSION MEMBER: I mean, where the

2 criticism comes from people who are suggesting a

3 split, it doesn't have to do with the circuit itself

4 as a unit so much as it has to do with what people

5 perceive are weaknesses in the appellate process?

6 MR. WALTERS: That is correct, sir.

7 CHAIRMAN WHITE: Well, isn't there a lot

8 of criticism that the staff is doing too much of

9 what the judges ought to do?

10 MR. WALTERS: Well, that, I think, is --

11 CHAIRMAN WHITE: That's administration?

12 MR. WALTERS: I think Judge Merritt's

13 point is that that is a court of appeals issue and

14 not a circuit-wide issue. I don't think we have

15 that criticism leveled anywhere else in the circuit

16 at the district court or bankruptcy court level. 

17 But I think that I have certainly heard that at the

18 court of appeals level, that the staff is

19 (indiscernible).

20 But I have a unique position in that I

21 travel not only this circuit and meet with the

22 judges regularly, but I travel many other circuits
109

1 and meet with judges elsewhere. That criticism is

2 not a 9th Circuit criticism. That is uniform

3 throughout the United States. 

4 I agree with Judge Merritt and I won't

5 belabor my point here, but I will just say that this

6 circuit runs and runs very well. There is very

7 little criticism on the way that we operate as a

8 circuit as a whole. I think if you turn to the --

9 you heard in Seattle that the Federal Public

10 Defenders unanimously oppose splitting this circuit

11 and like the structure that we have built here. I

12 think if you talk to the clerks of court or to the

13 chief probation officers, it may not be unanimous in

14 support of this institution as we've billed it, but

15 I think it would be very close to unanimous. There

16 may be one or two, but I'm not aware of who they

17 would be.

18 I think that same kind of a pattern

19 holds with the district judges and the magistrate

20 judges. We took a poll some years back, actually,

21 at one of our circuit conferences and there was

22 overwhelming support in keeping the circuit intact. 
110

1 There was 85 percent of the judges at that time that

2 voted in favor of keeping it intact. I don't think

3 that there's been much attrition in those rates

4 since then.

5 I will save your time and I will close

6 with that. Thank you very much.

7 CHAIRMAN WHITE: Oh, good. Thank you,

8 sir.

9 THE CLERK: Will the next panel come

10 forward? The Honorable Terry Hatter, Geraldine

11 Mund, Honorable George Nielsen, Elizabeth Perris,

12 and the Honorable Sandra Snyder.

13 JUDGE HATTER: Mr. Chairman --

14 CHAIRMAN WHITE: Judge Terry, you may

15 proceed.

16 JUDGE HATTER: Thank you.

17 Mr. Chairman, other Members of the

18 Commission, and Executive Director, Professor

19 Meador, I'm Terry Hatter. I'm the Chief Judge of

20 the Central District of California.

21 It's interesting to me as I've listened

22 to Judge Merritt, in particular, when he says that
111

1 he understands that the problem is the court of

2 appeals. Well, I think he's been listening to a lot

3 of district judges. They often say that. In

4 fact --

5 COMMISSION MEMBER: You don't say that

6 on the 6th Circuit, do you?

7 JUDGE HATTER: Oh, yes, every circuit, I

8 believe. In fact, the definition they give of an

9 appellate judge is one who comes on to the

10 battlefield after the battle has been won, just to

11 shoot the wounded or some say, "to resurrect the

12 dead." But I think that that's just an anecdotal

13 kind of thing that you get from district judges. 

14 They don't say the same thing when they sit by

15 designation with the circuits. They all of a sudden

16 have a different mind-set about it. So, I don't put

17 much stock in that.

18 I listened, however, to our Circuit

19 Executive and I quite agree with him that this

20 circuit is run very efficiently. I'm glad that the

21 Chairman has looked at some of my remarks where I

22 attempted to give you the thoughts of some of my
112

1 fellow judges. While I am the chief judge, I don't

2 pretend to represent some 27 active judges, 12

3 senior district judges, 21 to 22 bankruptcy judges

4 and 20 magistrate judges. We have over 80 judicial

5 officers in our district alone. 

6 If you're talking about structuring and

7 all, it may be that the Central District of

8 California needs its own circuit. I don't know. We

9 represent more than a third of the population of the

10 entire 9th Circuit, over 17 million people in my

11 district. Yet, we have great diversity on the bench

12 as well as among the litigants and the lawyers

13 representing the --

14 CHAIRMAN WHITE: Are you getting enough

15 work out of seniors?

16 JUDGE HATTER: Oh, we could not make it

17 if it were not for seniors. Justice, you've helped

18 with the 9th Circuit and other circuits. Our

19 seniors have provided us with a tremendous amount of

20 work. I must say, even though I'm not a senior

21 myself, I take great umbrage with this notion that

22 they have to be certified for 25 percent. Our
113

1 seniors do far more than that. It's an insult to

2 them. They help at the circuit level, as one of our

3 senior judges points out, with the mother load for

4 providing judges in other parts of this circuit

5 where there's a need. If you were to take

6 California out, then I don't know where you would

7 get most of your visiting judges to help.

8 It's particularly of great concern to me

9 as a district judge that I can report to you. 

10 While I don't represent all of the divergent views

11 of my colleagues, I can say that they're unanimously

12 opposed to a split of California. California has

13 enough problems, as you know. I mean, we may not

14 even have a state bar as I stand here, at least an

15 integrated state bar. But while we have fought

16 among ourselves for time and memorial, certainly

17 from the time that California entered the Union, as

18 to whether we ought to be split perhaps into two or

19 even three states. We don't want the great

20 Northwest, or those within the beltway, to tell us

21 that we have to be split. It doesn't make very much

22 sense that you would have members of the same bar
114

1 operating under different circuit law itself.

2 COMMISSION MEMBER: Judge Hatter, let me

3 ask you this question.

4 JUDGE HATTER: Yes?

5 COMMISSION MEMBER: One of the proposals

6 that has been made to this Commission along the way,

7 more than once, is that one way to address the court

8 of appeals problems -- that is, the heavy burdens,

9 the load, the need for ever more judges there -- is

10 to shift some of the review function to the district

11 level --

12 JUDGE HATTER: Yes.

13 COMMISSION MEMBER: -- by constituting 

14 by analogy to the Bankruptcy Appellate Panels.

15 JUDGE HATTER: That's right.

16 COMMISSION MEMBER: Constituting

17 district judge panels -- you might even have two

18 district judges and one circuit judge --

19 JUDGE HATTER: Yes.

20 COMMISSION MEMBER: -- but these panels

21 at the district level reviewing certain kinds of

22 cases. What is your reaction to that proposal?
115

1 JUDGE HATTER: Well, I've sat on

2 appellate panels in Guam and in the Northern

3 Marianas. In fact, the very last one in the

4 Northern Marianas before they got their own Supreme

5 Court. It functioned well administratively, or it's

6 just one other layer. Our decisions then went on to

7 the 9th Circuit. You can't do it without the person

8 power. We're already inundated with cases. I don't

9 know how that would operate more than just

10 theoretically unless we were able to not only fill

11 the vacancies that we have right now -- we have at

12 least three among the district judges. It would

13 require not only filling the vacancies, but

14 providing more person power. Conceptually, it could

15 work.

16 I looked at Professor Resnick's paper

17 and I agree with her on a lot of these things that

18 you, as a Commission, ought to be looking not at

19 numbers -- and I'm sure you're not just looking at

20 numbers because that's not what this is about. We

21 know, however, that it is about a political move. 

22 If there is to be this political push and you are
116

1 part of it, then I would suggest, as I did in my

2 papers, that we try the experiment that was not

3 really given much of a chance back in 1979. That is

4 to go to formal divisions. 

5 You would have the judges resident in

6 each division, which may be pretty much based on the

7 administrative units that we have now. Have those

8 judges decide the cases in their particular or

9 respective divisions. Where there's a problem, you

10 could have a limited en bank. Of course, I'm very

11 interested, as you are, in what this limited en bank

12 ought to consist of, how it would operate. I quite

13 agree with Judge Merritt that it should not be just

14 drawn as though you were at a crap table in Las

15 Vegas. I would envision, for example, if we were to

16 have divisions that there might be four judges in

17 each division who would be selected by their

18 respective fellows, and then the chief judge. So,

19 you would have a limited en bank of 13. Then, of

20 course, the majority of that body could ask for a

21 full en bank, and together with some of the kinds of

22 technological advancements that we already have, we
117

1 could have a full en bank.

2 COMMISSION MEMBER: Repeat that. You

3 had three administrative --

4 JUDGE HATTER: We would have three

5 administrative units --

6 COMMISSION MEMBER: -- or four --

7 JUDGE HATTER: -- four judges and the

8 chief judge, so you would have 13. If seven of that

9 13 wanted to have a clede en bank, a full en bank,

10 you could have that. There's no reason if the

11 number were to grow to 40, that you could not have

12 that with the teleconferencing.

13 COMMISSION MEMBER: We've concentrated

14 so heavily on the 9th Circuit, but let me ask you a

15 question.

16 JUDGE HATTER: Yes.

17 COMMISSION MEMBER: Judge John Newman

18 from the 2nd Circuit --

19 JUDGE HATTER: Yes?

20 COMMISSION MEMBER: -- suggested that we

21 try -- that our Commission make some

22 recommendations about jurisdiction. We haven't had
118

1 much luck in trying to get Congress to do anything

2 about, say, diversity or implant (indiscernible). 

3 JUDGE HATTER: Of course.

4 COMMISSION MEMBER: He suggested that in

5 certain categories, adjacent diversity being one of

6 them, maybe other categories that depend heavily on

7 state law, say, like ERISA cases, that you have to

8 file those cases in state court, to begin with. You

9 can then, if it is a diversity situation or a

10 federal question like an ERISA case, you can then

11 petition to remove to the federal court, but only

12 under certain criteria. That is, you would have to

13 show that the case has some potential for home

14 cooking or has some potential for whatever --

15 JUDGE HATTER: Certainly.

16 JUDGE HATTER: Make up a set of

17 criteria. That will tend, over time, to counteract

18 this tendency to ever nationalize the law in the

19 United States. At least you wouldn't just be having

20 everything always increasingly in federal court.

21 What's your view of that as a way of

22 trying in the future to combat this ever increasing
119

1 federal jurisdiction?

2 JUDGE HATTER: Again, it is a way that

3 could work, but I'm not sure it could work

4 politically any more than on the criminal side where

5 we're having so many what ought to be local matters

6 handled in our district courts. We're becoming

7 courts of general jurisdiction, as you know. It

8 concerns me greatly. I don't disagree necessarily

9 with my colleague on the 9th Circuit who has

10 suggested that there should be no cap on the number

11 of judges. So you take care of all of the matters

12 that come before you and you don't worry about what

13 Judge Newman has said. 

14 But I think Judge Rhinehart perhaps goes

15 a bit farther than I would go because I think,

16 indeed, that there ought to be a cap on the kinds of

17 matters that are handled in the federal court. I

18 think we ought to be a court of limited

19 jurisdiction. That we ought to be handling matters

20 of constitutional dimension and not the things that

21 our "brethren and sistern" in the local courts can

22 handle.
120

1 CHAIRMAN WHITE: Two minutes.

2 JUDGE HATTER: All right, thank you.

3 I just want to make it very clear that

4 while we have some divergent views among the

5 district judges, the bankruptcy judges. And my

6 colleague, Chief Bankruptcy Judge Geraldine Mund

7 will be speaking to you with more particularity

8 about the bankruptcy capitol of the nation which the

9 Central District also happens to be. But we are, in

10 general, opposed to the split of the circuit and

11 unanimously opposed to any split of California. It

12 just does not make sense at all in any way that you

13 would want to reach a structuring that would meet

14 the needs of the Northwest, and we know that there

15 are some parochial needs there. 

16 The suggestion is that if there's to be

17 a split of the circuit even, that it should

18 certainly have states and jurisdictions like the

19 Northern Marianas and Guam that follow California

20 law. Not only do they follow California law, but

21 there are other common historical relationships

22 between these jurisdictions and they ought to be
121

1 maintained: Arizona, Nevada, California. And of

2 course, one of the benefits since California is so

3 large and should not be split, is that you do have

4 all of the other districts within the circuit that

5 counterbalance California.

6 CHAIRMAN WHITE: Thank you, Judge.

7 JUDGE HATTER: Thank you.

8 CHAIRMAN WHITE: You're very

9 informative.

10 Judge Mund.

11 JUDGE MUND: I'm Geraldine Mund.

12 CHAIRMAN WHITE: Welcome.

13 JUDGE MUND: I'm Chief Bankruptcy Judge

14 for the Central District of California which, as

15 Judge Hatter said, is the largest bankruptcy court

16 in the United States, possibly in the world. I'm

17 here to take you into the wonderful world of

18 bankruptcy.

19 First of all, there are three points I'd

20 like to make. The first is, administratively, the

21 9th Circuit works very well for bankruptcy. 

22 Secondly, that if there is to be a split, the
122

1 concept of splitting California would be a tragedy. 

2 The third is that the creation of many small

3 circuits will have a very serious and negative

4 impact on the practice of bankruptcy law throughout

5 the United States.

6 As to the administration, if as Judge

7 Merritt says, the problem that needs to be solved is

8 a perceived problem that the court of appeals is

9 somehow not putting out a uniform body of appellate

10 law, don't harm the administration that's here in

11 order to solve that problem because the

12 administration works very well. 

13 First of all, unlike my colleagues of

14 the district court in the Central District of

15 California, we are a borrowing court, not a lending

16 court. We have 114,000 cases filed last year. We

17 have approximately 10 percent of all the bankruptcy

18 cases in the United States are filed in the Central

19 District of California. For the last five years,

20 we've been going to Congress to try to get five

21 additional judges. We're still waiting. We are

22 often in desperate straits and when we were in
123

1 better situation, we were also a lending court

2 lending judges to Alaska who, at that time, were

3 going through a bankruptcy boom. Now, we borrow

4 from Alaska, from Washington, and from Oregon. So,

5 the bankruptcy fluctuates tremendously, the

6 caseloads fluctuate. In the course of a year, they

7 move throughout the nations, up, down, sideways.

8 COMMISSION MEMBER: Beyond your three

9 points, may I ask you about a fourth one?

10 JUDGE MUND: Sure.

11 COMMISSION MEMBER: Do you have any

12 suggestions to make at all about changes in the

13 appellate process in bankruptcy cases, the procedure

14 or the forums or anything related to bankruptcy

15 fields? Any changes there?

16 JUDGE MUND: Well, there are bills

17 pending before Congress right now that will have a

18 direct appeal to the circuit. From the bankruptcy

19 perspective --

20 COMMISSION MEMBER: Is that bypassing

21 the district court?

22 JUDGE MUND: It would bypass the
124

1 district -- I believe that they both --

2 COMMISSION MEMBER: That's a good bill.

3 JUDGE MUND: Yes. I think that our

4 district judges agree every bit as much as our

5 bankruptcy judges. I believe that it's a very

6 controversial bill.

7 CHAIRMAN WHITE: Yes, but it would bind

8 the district court.

9 COMMISSION MEMBER: I'm willing to live

10 with that, Mr. Justice.

11 COMMISSION MEMBER: We could just let

12 them apply for (indiscernible) in the Supreme Court

13 directly.

14 JUDGE MUND: I like that one, too. In

15 answer to the question --

16 CHAIRMAN WHITE: Well, you know what

17 they would do. It would get denied.

18 COMMISSION MEMBER: That's the point.

19 JUDGE MUND: Actually, one of my cases

20 actually got all the way up to the Supreme Court and

21 it was very interesting to go and hear the argument

22 on it. The Supreme Court, of course, said I was
125

1 right and the 9th Circuit was wrong, so I'm all for

2 that.

3 In answer to the question, if it were

4 administratively possible, it would best to have

5 bankruptcy appeals go directly to the circuit. 

6 Having an additional level of appeal, be it to the

7 district court which is not a very effective level

8 of appeal because it's not binding law. We have

9 well over 30 district senior judges in our district.

10 COMMISSION MEMBER: You mean to go from

11 the BAP to the circuit?

12 JUDGE MUND: No, I mean to go from the

13 bankruptcy court to the circuit would be most

14 effective.

15 COMMISSION MEMBER: What would happen to

16 the BAP? What would happen to the BAP in that

17 arrangement?

18 JUDGE MUND: If it were not needed -- in

19 other words, if the circuit were able to handle this

20 mass of appeals, from the point of view of the

21 bankruptcy practitioners, the parties involved, it

22 would be best to have only one level of appeal. Two
126

1 levels of appeal is very expensive, very time

2 consuming. However, you're talking about unleashing

3 upon the circuit, a huge mass of cases that are now

4 being sifted out at the BAP level. 

5 So, unless Congress is willing to give

6 many more resources to the circuits, which they have

7 not been willing to do, then I have to say that

8 having a Bankruptcy Appellate Panel in place is

9 very, very important. I think it weeds out cases. 

10 It allows the circuit to handle the cases that they

11 must handle. They do handle many bankruptcy cases,

12 but there's an awful lot of cases that just don't go

13 any further.

14 CHAIRMAN WHITE: What would you think if

15 the BAP decision bound the district court?

16 JUDGE MUND: I published an opinion on

17 that.

18 CHAIRMAN WHITE: What?

19 JUDGE MUND: I published an opinion on

20 that as the precedent of that. I think that at the

21 present time, the district court and the BAP are as

22 two circuits sit side-by-side. I don't think they
127

1 bind each other.

2 CHAIRMAN WHITE: Yes.

3 JUDGE MUND: The Article III, Article I

4 is a highly political problem. Therefore, I don't

5 think that the Article III district judges could be

6 bound by an Article I Bankruptcy Appellate Panel. 

7 However, it would be lovely if it could be.

8 CHAIRMAN WHITE: Oh, well, you mean that

9 the marathon case wouldn't prevent it?

10 JUDGE MUND: That it would not prevent

11 it, or it would prevent it?

12 CHAIRMAN WHITE: Would.

13 JUDGE MUND: Yes, I think marathon would

14 prevent it, would prevent the Article III district

15 judges from having started (indiscernible) binding

16 from an Article I Bankruptcy Appellate Panel if

17 there were no Article III decision that was made as

18 part of that, yes.

19 COMMISSION MEMBER: As a constitutional

20 matter, you think?

21 JUDGE MUND: Well, you know, you're --

22 COMMISSION MEMBER: Marathon.
128

1 JUDGE MUND: -- you're well away from

2 where I'm actually feeling that I'm comfortable

3 answering. You know, standing on one foot, probably

4 I would say yes, as a constitutional matter, but

5 boy, I'm no constitutional scholar.

6 COMMISSION MEMBER: In terms of

7 administration, you think the BAP should be binding?

8 JUDGE MUND: As terms of administration,

9 I would like a direct appeal from a bankruptcy court

10 decision to a binding decision. Now, whether that's

11 a BAP with cert to the district court thereafter, or

12 whether it's to -- I'm sorry, cert to the circuit

13 court thereafter, or whether it's directly to the

14 circuit court, I don't care. I think the BAP

15 happens to be wonderful. I think that the 9th

16 Circuit and its size allows for a wonderful

17 Bankruptcy Appellate Panel because we have the

18 resources. I think that we're on the cutting edge. 

19 We created it. We brought it back as soon as the

20 marathon decision was taken care of and we were able

21 to. We have been studied -- and I won't speak more

22 to it because Judge Perris is here on behalf of the
129

1 BAP. 

2 Any other questions on that or should I

3 hit my other points?

4 CHAIRMAN WHITE: Go to it.

5 JUDGE MUND: Okay, I'll go to it.

6 The size of our circuit and diversity

7 allows the districts to create fine programs. 

8 You'll hear more from Judge Nielsen about the

9 Conference of Chief Bankruptcy Judges and our

10 educational programs. We have this Workload

11 Equalization Program that Judge Thompson talked

12 about. In my district, for instance, as I stand

13 here, Judge Perris, who is from Oregon, is receiving

14 100 adversary proceedings from our Riverside

15 Divisional Office to help us out with some of our

16 workload. You can't do that in a smaller circuit

17 and you can't do that in a circuit that is too

18 homogeneous because the caseloads all go up at the

19 same time.

20 COMMISSION MEMBER: Let me ask you this

21 about that. If the circuit were divided and the 9th

22 Circuit were left with California, Arizona and
130

1 Nevada, that would still be a large enough circuit,

2 would it not, to achieve all that you're describing

3 now?

4 JUDGE MUND: Not really. First of all,

5 Arizona has five -- has seven judges and Nevada has

6 three bankruptcy judges. We have 21. That's not a

7 whole lot of extra judges to help us with our need. 

8 The entire state of California economically went to

9 slump at the same time. Nevada is one of the

10 fastest growing bankruptcy filing districts in the

11 nation right now. Arizona was going absolutely

12 crazy with their filings. Judge Nielsen can give you

13 more facts on that if you want that. We all went up

14 at about the same time because, again, economically

15 we're very similar. The Pacific Northwest went down

16 about that time. A lot of movement went from

17 California up there. A lot of the economics went up

18 there, so they've been able to step in and help us. 

19 Now, when they start going through a

20 slump, hopefully, the Pacific Southwest will be in

21 firmer place and we'll be able to step in and help

22 them. There really is a balancing back and forth
131

1 within the bankruptcy courts that regionalization

2 will hurt, not help.

3 CHAIRMAN WHITE: Now, your time is

4 almost up.

5 JUDGE MUND: Okay. Then let me just

6 very quickly hit my other two things. That is, the

7 split of the state of California. I just --

8 CHAIRMAN WHITE: We may not have time,

9 but go ahead.

10 JUDGE MUND: All I wanted to say was

11 that in my letter that I wrote to the Commission,

12 the bankruptcy courts are the commercial courts of

13 the United States. We cover a huge amount of state

14 commercial law within our courts, and it's critical

15 that we have one court that covers a state and that

16 we not split the state of California between two

17 bankruptcy courts.

18 CHAIRMAN WHITE: Okay.

19 JUDGE MUND: I thank you very much.

20 CHAIRMAN WHITE: Thank you.

21 CHAIRMAN WHITE: Judge Nielsen?

22 JUDGE NIELSEN: Justice, ladies and
132

1 gentlemen, if it doesn't disappoint the members of

2 the Commission, I'm not going to talk very long. 

3 Quite frankly, I'd rather try to deal with your

4 questions than (indiscernible) much, but I do want

5 to make two points. 

6 One point has already been made in the

7 paper that we submitted to you. I say we because

8 all of the Arizona bankruptcy judges have supported

9 it. We tried to spell out how absolutely vital the

10 administrative structure of the 9th Circuit is in

11 supporting us. I know that you would like to

12 concentrate more on the problems. But again, the

13 point is this, we can't lose that structure. We

14 need it very badly because throughout the 9th

15 Circuit, there's 70-some bankruptcy judges sitting

16 in courtrooms slightly less grand than these dealing

17 with very -- what some people might view as very

18 mundane problems, but very important problems to the

19 people involved. The numbers are absolutely

20 horrendous, as you know. I suppose if pressed, I

21 would have to admit that Arizona is not the center

22 of the universe, but even in our state, we generate
133

1 between 22,000 and 24,000 new bankruptcy cases every

2 year. We have to deal with that with seven judges.

3 JUDGE MERRITT: How many appeals are

4 there from your bankruptcy court? I know you may

5 not know the precise number, but approximately how

6 many appeals?

7 JUDGE NIELSEN: Chief Judge Merritt, I

8 don't frankly know. I don't track the appeals that

9 closely. We do know that they run approximately 60

10 percent to the Bankruptcy Appellate Panel and about

11 40 percent to the district court. And speaking of

12 that, let me risk a beating from every district

13 judge in this room and make an alternative

14 suggestion on abolishing district court appeals. I

15 am well aware of the fact that no one ever wanted to

16 be a district judge to handle bankruptcy appeals

17 with the possible exception of Judge Browning, of

18 course.

19 But the fact of the matter is this, an

20 awful lot of our work, however grandly we like to

21 talk about the Chapter 11 work and the big mega

22 cases -- and I've had a case involving $1.5 billion
134

1 in claims and that's grand. But an awful lot of our

2 cases involve questions like -- the way I put it is

3 "who gets the Chevy? Does the debtor keep the Chevy

4 or does the bank get the Chevy?" That doesn't sound

5 like a lot in the grand scheme of things, but I can

6 tell you to the individual litigants, even the

7 creditor, that's an important question. 

8 It is not realistic to think that when I

9 make that decision sitting in Phoenix or Tucson or

10 the other places in Arizona that we sit, including

11 Bullhead City by the way, it's not realistic to

12 think that someone is going to appeal me to San

13 Francisco on that question. We need the

14 availability of district judges, or bankruptcy

15 appellate judges to hear these appeals or I fear

16 we're going to lose a lot of those --

17 COMMISSION MEMBER: Can I ask you a

18 question again? I know you don't know the specific

19 figures, but anecdotally, most bankruptcy appeals

20 raise questions of state law. That's my perception. 

21 Now, some raise questions of federal law under the

22 bankruptcy code. But is it your perception that
135

1 most of the appeals, they're really appealing a

2 question of state law that the bankruptcy court has

3 decided, a commercial state law?

4 JUDGE NIELSEN: Judge, that's not

5 exactly my sense. The sense of it I get is that a

6 good half of the people who are unhappy with me are

7 raising bankruptcy code issues.

8 COMMISSION MEMBER: They are.

9 JUDGE NIELSEN: And about the other half

10 are raising Arizona law issues. But we need to keep

11 up on that commercial law because we apply a lot of

12 it.

13 All right, those are the two main things

14 I wanted to tell you. It's so important that we

15 have an economical way to appeal me in those rare

16 instances when I make a mistake. Please appreciate

17 the importance of the administrative structure to

18 the day-to-day job that we do.

19 CHAIRMAN WHITE: I thought that one of

20 the big problems is that that should have never had

21 a biding precedent with the BAP.

22 JUDGE NIELSEN: That's a fairly hot
136

1 issue, whether or not a bankruptcy judge -- I don't

2 have any difficulty in saying that the BAP can not

3 bind a district judge at all. It's a debated issue

4 whether or not the BAP can bind an individual

5 bankruptcy judge. I don't see that that's an

6 important question. 

7 Number one, what I'm looking for every

8 day in my back-to-back hearings that I start at 9:00

9 in the morning is, I'm looking for precedent. I'm

10 looking for an answer to the issues.

11 CHAIRMAN WHITE: Well, where do you get

12 it?

13 JUDGE NIELSEN: I get it from the BAP

14 because this 9th Circuit BAP is the longest

15 established BAP with the greatest number of

16 published cases out there. When I get a case in

17 point, I apply it. Because if I don't apply it, if

18 I go in another direction, if I get appealed and the

19 appeal goes to the BAP, I'm going to get reversal.

20 CHAIRMAN WHITE: Hasn't the Bankruptcy

21 Commission in effect done away with the BAP?

22 JUDGE NIELSEN: I'm speaking solely for
137

1 myself, the Commission made a poorly reasoned

2 decision to recommend doing away with district court

3 and BAP, appellate jurisdiction, and go to these

4 direct appeals.

5 CHAIRMAN WHITE: Well, what they urge is

6 that they want some binding precedent that will let

7 the bankruptcy judges know what the law is.

8 JUDGE NIELSEN: That's correct. They

9 were concerned about too many level of appeal. 

10 Please keep in mind, appellate courts do something

11 else besides establish case law. They resolve

12 individual cases. The problem I have with the large

13 number of consumer cases that I have is, if you do

14 away with these intermediate appellate structures, a

15 lot of these appeals are not going to be filed and

16 people are just going to be denied their rights.

17 CHAIRMAN WHITE: All right.

18 JUDGE NIELSEN: I appreciate your kind

19 attention and it has been a distinct pleasure to

20 appear before you.

21 CHAIRMAN WHITE: Thank you. Thank you

22 very much.
138

1 JUDGE PERRIS: Justice White, Members of

2 the Commission.

3 CHAIRMAN WHITE: Judge Perris.

4 JUDGE PERRIS: My name is Elizabeth

5 Perris. I'm a bankruptcy judge from the district of

6 Oregon. I appear today on behalf of the Bankruptcy

7 Appellate Panel which I served as a member for five8 and-a-half years. I'm no longer a regular member of

9 the BAP, although I do sit protium regularly.

10 I should make it clear, I'm not here

11 representing the judges of the District of Oregon,

12 the bankruptcy judges. I know you heard from Judge

13 Reddon on behalf of the district and magistrate

14 judges of the District of Oregon a few days ago. 

15 The bankruptcy judges have never collectively taken

16 any position on the circuit split.

17 I really want to talk about two points

18 and also talk to the question that was raised

19 earlier about the bankruptcy appellate structure. 

20 The two points I want to make are, the 9th Circuit's

21 unique culture and resources have really made the

22 BAP experience possible, I think. The 9th Circuit
139

1 made the decision quickly after the code was

2 adopted, to form a Bankruptcy Appellate Panel. 

3 Judge Browning and the members of the court were

4 very supportive, and there have been a lot of bumps

5 along the way in the road, not the least of which

6 were the 1984 amendments in the wake of marathon

7 that required consent. The 9th Circuit took the

8 lead in going to the Rules Committee and asking that

9 there be the possibility of consent by inaction as

10 opposed to affirmative consent.

11 The 9th Circuit is, once again, I think,

12 on the cutting edge of thinking about bankruptcy

13 appellate structure in the wake of the Commission's

14 recommendation and the resulting introduction of HR

15 3150, which does provide for direct appeal to the

16 circuit from bankruptcy court decisions. That

17 would, of course, add to an already overburdened

18 court of appeals; in the 9th Circuit, approximately

19 1,000 appeals per year. The 9th Circuit promptly

20 formed an ad hoc committee and looked into what the

21 options were. In fact, the 9th Circuit has made a

22 request of the Judicial Conference to consider
140

1 proposing an amendment to the direct appeal to the

2 circuit recommended by the Commission, that would

3 allow the circuits, if they chose, to retain or

4 create a Bankruptcy Appellate Panel which would hear

5 appeals with consent. But that would be the one

6 appeal (indiscernible) right. An appeal from there

7 would be on a discretionary basis to the circuit. 

8 That's accomplishing the Commission's goal of only

9 one appeal has a right which is part of the problem

10 in the bankruptcy system that the Commission was

11 addressing. Two appeals is a right or costly and

12 took a lot of time.

13 So, I think the 9th Circuit has really

14 shown its leadership in trying to use to the

15 fullest, it's judicial resources in dealing with

16 bankruptcy appeals.

17 COMMISSION MEMBER: Well, let me ask you

18 this question.

19 JUDGE PERRIS: Yes?

20 COMMISSION MEMBER: A moment ago, I

21 raised a question about a proposal that the

22 Commission has had to -- this is outside the
141

1 bankruptcy field, this proposal to shift some

2 reviewing functions to the district level by having

3 district court appellate panels by analogy to the

4 (indiscernible).

5 One of the arguments that was made in

6 one of the hearings against that was that district

7 judges would not function very well in reviewing

8 other district judges. There seemed to be some

9 problem about reviewing one's colleagues, even

10 though from another district. Now, in the

11 bankruptcy field, has there been any problem about

12 bankruptcy judges are somehow reluctant or

13 uncomfortable in reviewing the work of other

14 bankruptcy judges?

15 JUDGE PERRIS: Absolutely not. I think

16 the people who have served on a BAP find it not a

17 very personal experience. You don't think of

18 yourself as reviewing this person or that person. 

19 You think of yourself as reviewing a decision.

20 In fact, one of my colleagues, Judge

21 Myers, has done his own informal study of whether

22 there's any difference in reversal rates between
142

1 judges who are sitting on the BAP and judges who

2 aren't sitting on the BAP, and what the reversal

3 rates are? Of course, we can't get comparable

4 statistics for district courts reviewing bankruptcy

5 judges, but the indication is there's no difference

6 in reversal rates based on whether you know somebody

7 or you don't know them. I don't think there has

8 been any discomfort at all. In fact, I take some

9 comfort in the fact I respect my colleagues who are

10 reviewing my decisions, and I know who they are.

11 COMMISSION MEMBER: Is it your

12 perception that the appeals, the bankruptcy appeals,

13 raise, as your colleague said, about 50 percent

14 state and 50 percent federal issues, or would you

15 have a different perspective?

16 JUDGE PERRIS: Well, I sat on about 550

17 appeals on the merits in my time on the BAP and it

18 was actually, I think, closer to two-thirds

19 bankruptcy questions, a third state law questions. 

20 But it may be, in part, who chooses to go to the BAP

21 versus who chooses to go to the district court.

22 I do know the answer to your statistical
143

1 questions if you have them. I have the 1997 figures

2 for the BAP. The BAP handled 719 appeals of the

3 1,234 total in the circuit in 1997.

4 COMMISSION MEMBER: Judge, let me ask

5 you -- I should know the answer to this. If, for

6 example, a litigant in bankruptcy court in Arizona

7 decides to appeal to the BAP as opposed to the

8 district court, is that appeal heard in Arizona?

9 JUDGE PERRIS: The BAP regularly sits

10 throughout the circuit. In those instances where

11 there aren't enough appeals to justify sending a

12 panel to the district, we've made fairly frequent

13 use of telephonical oral argument. We try and give

14 oral argument to most everybody who wants oral

15 argument.

16 COMMISSION MEMBER: Thank you.

17 CHAIRMAN WHITE: Tell me, what would be

18 your suggestion if you had the choice of reforming

19 the appellate maze in the bankruptcy law?

20 JUDGE PERRIS: Well, if I had the

21 choice, I'd want only one appeals as a matter of

22 right. I want it to go a forum that wasn't terribly
144

1 overburdened and if that means Bankruptcy Appellate

2 Panels with discretionary review by the circuit,

3 that would be my choice. If the circuits had more

4 time and resources, I might want it to go straight

5 to the circuit since ultimately, the circuits will

6 be the arbiters.

7 CHAIRMAN WHITE: Yes. Yes. But you

8 know it doesn't.

9 JUDGE PERRIS: Right.

10 CHAIRMAN WHITE: So, you would give the

11 BAP decision much more authority?

12 JUDGE PERRIS: I would, in part because

13 the BAP's function as three judge panels. I think

14 that makes a big difference in the appellate

15 decision making process than when judges sit and

16 make decisions one judge at a time.

17 COMMISSION MEMBER: Isn't that also

18 because the BAPs have expertise? That is, they are

19 specialized in bankruptcy and have that expertise

20 too?

21 JUDGE PERRIS: I think that's an

22 advantage. Some people argue that that's a
145

1 disadvantage. That you want to have generalist

2 judges doing your appellate work. But ultimately,

3 the big decisions will be decided by the circuits. 

4 If you had a Bankruptcy Appellate Panel followed by

5 discretionary review at the circuit, and perhaps

6 even some mechanism to get some appeals directly to

7 the circuit --

8 CHAIRMAN WHITE: How do you get away

9 with an Article I -- those people are Article I

10 judges, aren't they?

11 JUDGE PERRIS: Well -- although some

12 people have suggested --

13 CHAIRMAN WHITE: Don't you think it

14 would be very strange to give the court of appeals

15 the discretionary appeal?

16 JUDGE PERRIS: Well, some people have

17 suggested even an Article III Bankruptcy Appellate

18 Panel. Judge George has made that suggestion in

19 some of the writing that has been done. But I agree

20 that you can't get all of the appeals to an Article

21 I Bankruptcy Appellate Panel because of

22 constitutional issues.
146

1 COMMISSION MEMBER: The Commission has

2 had that suggestion that there be a panel in the

3 court of appeals to which all bankruptcy fields

4 would go. What do you think of that?

5 JUDGE PERRIS: Well, that gets into the

6 whole question of specialized panels of the courts

7 of appeal. As somebody who is in a specialized

8 court, I'm comfortable with the notion of

9 specialized courts. But I also respect the concept

10 that generalists should be involved in deciding

11 these cases. I think that's really more of a call

12 on my mind for the people on the court of appeals,

13 how they want to organize their workload.

14 I know my time is about up. I just

15 wanted to --

16 CHAIRMAN WHITE: Yes, it is.

17 JUDGE PERRIS: -- to conclude with one

18 thought. I think that the 9th Circuit has made the

19 most of the bankruptcy judges and it has been good,

20 both for the bankruptcy appellate system and it has

21 helped the circuit in terms of workload.

22 I thank you for your time.
147

1 CHAIRMAN WHITE: Thank you very much.

2 Judge Marilyn Hall, is it Patel?

3 JUDGE SNYDER: You're down into the next

4 panel, Justice.

5 CHAIRMAN WHITE: Oh, that's right. 

6 Lloyd George.

7 JUDGE SNYDER: Lloyd George, that's it.

8 Good almost afternoon, Justice White,

9 Members of the Panel. Thank you for allowing me a

10 few minutes to address you. I will be brief. I

11 know that you have heard from magistrate judges when

12 you were up in the north part of the country, so

13 you've heard some of our ideas, I believe.

14 In a time when judges are not being

15 appointed to the openings that exist as rapidly as

16 we all would like, and certainly in a time when it,

17 I guess, pretty much goes without saying that

18 Congress is not going to create new judicial seats,

19 courts across the nation are having to come up with

20 unique ways to handle the back breaking caseloads. 

21 Those of us in the 9th Circuit, magistrate judge

22 level like to think that we offer and happily accept
148

1 and allow the buck to stop here. To the extent that

2 we are trying very innovative things in the 9th

3 Circuit as magistrate judges to assist with those

4 caseloads, I'd like to just very briefly touch on

5 them. Again, it may well have been talked about up

6 north. I don't know. 

7 I think we're unique in our use of

8 magistrate judges in a number of ways, but one of

9 the most important ways is that we're assigning

10 several different districts are assigning magistrate

11 judges off the wheel. That means that magistrate

12 judges are being assigned the case and unless and/or

13 until the litigants declare that they do not wish a

14 magistrate judge to handle those cases, those cases

15 are handled through and to conclusion by a

16 magistrate judge. It's working very well.

17 One of the reasons I think that's

18 beginning to happen more and more, especially in the

19 9th Circuit -- and obviously, I'm biased -- but I

20 think it's because of the quality of the individuals

21 who are applying for the openings on the magistrate

22 judge level.
149

1 COMMISSION MEMBER: That's in civil

2 cases?

3 JUDGE SNYDER: That absolutely is in

4 civil cases, right.

5 In my particular district, for example,

6 we've just begun that with respect to prisoner civil

7 rights, non-death penalty, habeas, and all Social

8 Security appeals. Lest that sounds like a level of

9 case that's probably not as back breaking as the

10 others, I don't need to tell you that there are

11 hundreds of them. If the district court had to deal

12 with them, they would never get to the cases that --

13 COMMISSION MEMBER: It means that

14 there's a rising level of appeals on magistrate

15 judges directly to the 9th Circuit. That's one of

16 the things it means, doesn't it?

17 JUDGE SNYDER: That would obviously mean

18 that. Anticipating the question in that regard,

19 since this is such a new procedure -- not so much in

20 Oregon and I would hope that if they spoke to that,

21 that they might have told you more about it -- but

22 it's just new in my district. Idaho has been doing
150

1 it with some success. I don't know about the number

2 of appeals from there. In the Northern District

3 here in California, it has just begun. So, that

4 remains to be seen.

5 COMMISSION MEMBER: My point is, the

6 more you use the magistrate judges to perform the

7 role of all of the three district judges, marginally

8 speaking, the more appeals you're going to have to

9 the 9th Circuit. Isn't that right?

10 JUDGE SNYDER: Well, happily, I guess

11 yes, I would have to agree. But that would also

12 mean that the cases are being handled and perhaps on

13 a much more expeditious basis, timeliness. Maybe

14 the issues that tend to take on a life of themselves

15 and create appeals aren't going to occur. That is

16 something that we've been talking about. A lot of

17 times, timeliness will help, I think.

18 Justice White?

19 CHAIRMAN WHITE: What kind of cases --

20 you say that you just go by the wheel unless

21 somebody objects?

22 JUDGE SNYDER: On civil filings.
151

1 CHAIRMAN WHITE: Yes, yes. But are

2 there a lot of objections?

3 JUDGE SNYDER: Well, it's in the

4 process. Every district who is trying this -- and

5 we've heard the phrase "cutting edge" used a lot. 

6 Everybody does it slightly differently. Let me

7 speak to what I know personally in our district.

8 A form letter goes out to the litigants. 

9 They aren't blind-sided by any stretch of the

10 imagination and they are told that a magistrate

11 judge is assigned to the case and --

12 CHAIRMAN WHITE: All right. All right.

13 JUDGE SNYDER: -- that the magistrate

14 judge is qualified to handle the case, and that they

15 may object to that. By signing a particular consent

16 form or not consenting, if you will -- mail it back

17 to the court, then the case either stays with the

18 magistrate judge or it's then assigned to district

19 court judge.

20 CHAIRMAN WHITE: Well, is there some

21 kind of case that nobody would permit any magistrate

22 to --
152

1 JUDGE SNYDER: Well, certainly, criminal

2 cases we can't do that.

3 CHAIRMAN WHITE: Well, I know, but civil

4 case.

5 JUDGE SNYDER: I don't know the answer

6 to that question. I think it hasn't been tried. 

7 Well, in any civil case --

8 COMMISSION MEMBER: Are all your civil

9 cases on the wheel, or just some categories? 

10 JUDGE SNYDER: Just some categories for

11 the assignment of just a magistrate judge to that

12 case. But all civil cases in most districts are

13 assigned to a district court judge and a magistrate

14 judge.

15 COMMISSION MEMBER: Yes, but the special

16 circumstance that you're talking about, for example,

17 you wouldn't necessarily have a list of cases on the

18 wheel. You wouldn't necessarily, say, have

19 diversity cases on the wheel, right?

20 JUDGE SNYDER: Right, correct. Correct. 

21 However --

22 COMMISSION MEMBER: Excuse me. We do
153

1 in our district, but there's an element of risk if

2 you disqualify the magistrate judge. We don't tell

3 you in advance which district judge you're going to

4 get.

5 JUDGE SNYDER: That's right. That's

6 right.

7 But it has been our experience in the --

8 COMMISSION MEMBER: We're having

9 conversations with each other.

10 JUDGE SNYDER: Right.

11 We are, having just begun it now and

12 touching bases with my colleagues in the Pacific

13 Northwest who have been doing this for a lot longer

14 than we have, there are not a lot of folks who are

15 declining magistrate judge jurisdiction in those

16 regards. We like to think that in our role as

17 assisting the district court as much as we can, that

18 that is really going to help.

19 Now, I was anticipating in listening to

20 questions earlier about "well, couldn't you still do

21 that and speak with your colleagues and network, and

22 do all the things that my statement talks about?" I
154

1 was thinking of the question, "well, suppose it was

2 just California, Nevada, and Arizona. Wouldn't that

3 be enough magistrate judges to continue to network

4 with?"

5 Well, with all due respect and just

6 anticipating, no, it wouldn't. There are, as Mr.

7 Walters told you, only 73 of us in the entire 9th

8 Circuit. That is not a lot of magistrate judges to

9 confer with and to network with. We do it extremely

10 well. We meet twice a year. I'm on the phone all

11 the time to my colleagues in Idaho, and Hawaii and

12 Arizona to talk about new ways to assist the

13 district courts. Quite frankly, the courts who have

14 stuck their neck out so-to-speak, and the ones who

15 are doing the more innovated and interesting things

16 happen to be in that part of the country, not in

17 California necessarily. Without going through and

18 citing the different districts, we need those folks

19 a lot. They've been very creative and I think

20 they've helped our courts in the 9th Circuit

21 (indiscernible).

22 CHAIRMAN WHITE: Can I ask you, are the
155

1 cases the magistrate tries and decides -- does it

2 make any difference that the magistrate has tried

3 this case as to the weight that the staff gives an

4 appeal to the 9th Circuit?

5 JUDGE SNYDER: My experience is not. 

6 I've tried a number of cases through jury trial to

7 conclusion. I think only three of them have been

8 appealed and the appeals have come back. The

9 rulings on those appeals have come back as quickly,

10 I believe, as any that I see coming back for all the

11 cases tried by the district court.

12 So, if I understand your question,

13 Justice, is it when it comes to this building here,

14 because it was tried by a magistrate judge, is it

15 put aside to deal with more serious cases?

16 CHAIRMAN WHITE: Well, let's put it this

17 way. Would you expect the 9th Circuit to give oral

18 argument to a magistrate case just as likely as a

19 district court decision?

20 JUDGE SNYDER: I would hope so.

21 CHAIRMAN WHITE: Well, you'd hope so,

22 but do you know?
156

1 JUDGE SNYDER: I don't know. I don't

2 know. I haven't had that experience. But to the

3 extent that the consent derives from a case that

4 originally was with a district court judge, the

5 issues certainly don't change. I don't think that

6 who sits in the robe and presides over the jury

7 trial should make any difference regarding the depth

8 of the issues on appeal.

9 CHAIRMAN WHITE: All right. You've got

10 maybe a minute-and-a-half.

11 JUDGE SNYDER: Okay, I can do it.

12 The one final thing I would like to

13 emphasize, and again, to draw from something Mr.

14 Walters said, that the 9th Circuit is more than a

15 court of appeal. The magistrate judges in the 9th

16 Circuit have used the administrative offices, the

17 executive offices here at the court of appeal

18 probably as much, if not more, than any other agency

19 I can think of. We meet regularly. We put out a

20 newspaper. We have our own on-line communication

21 forum. We put together seminars not just for

22 magistrate judges -- all of that with the assistance
157

1 of the folks here. 

2 It works well and it works uniquely

3 well, and I would hate to see it to end. On behalf

4 of the Magistrate Judges Executive Board of which I

5 am chair, I would like to encourage that the circuit

6 not be split. Thank you.

7 CHAIRMAN WHITE: Thank you.

8 THE CLERK: Would the next panel please

9 come forward, Honorable Marilyn Huff, Honorable Alan

10 Kay, Honorable Lloyd George, and the Honorable

11 Marilyn Hall Patel?

12 CHAIRMAN WHITE: All right, Marilyn

13 Huff?

14 JUDGE HUFF: Good morning. I am Chief

15 Judge of San Diego, the Southern District of

16 California and I'm pleased to speak just on a couple

17 of thoughts before this respected Commission.

18 I am opposed to the split of the 9th

19 Circuit. The geographical size and diversity of the

20 9th Circuit is one of its strengths, not its

21 weaknesses in this way. It provides a uniform body

22 of law for admiralty cases. Whether you're in
158

1 Guam, San Diego, Long Beach, Los Angeles, Seattle,

2 you'll have a uniform body of law. Drug cases,

3 sadly, prevail --

4 COMMISSION MEMBER: That's still hard to

5 figure out.

6 JUDGE HUFF: But it's easier to figure

7 out from one circuit, one large circuit, than 30

8 different circuits.

9 CHAIRMAN WHITE: Exactly.

10 JUDGE HUFF: Drug cases, sadly, pervade

11 across all societal lines. Employment cases, it's

12 important for employers and employees to have

13 knowledge as to the existing law. I also serve as

14 the chairperson of the Fairness Committee of the 9th

15 Circuit. We have a tremendous strength in drawing

16 from all of the diversity of people within the 9th

17 Circuit.

18 Secondly, the workload of the 9th

19 Circuit does not justify a split. With

20 technological advances, the J-Net, E-mail, faxes,

21 we're better able to communicate now than ever

22 before. And just think of the future. I do think
159

1 that it would be a step backward to then become

2 split among regional lines.

3 JUDGE RYMER: One of the points that has

4 been made is that it is virtually impossible for

5 anyone, particularly district judges, to keep

6 abreast of the law of the circuit because of 8,000

7 dispositions. Do you have a view on that?

8 JUDGE HUFF: I think with computers,

9 with ways of -- we're better able to know now than

10 before.

11 JUDGE RYMER: But what you're saying is,

12 it doesn't matter. I mean, basically, you're making

13 a decision. You're researching it. Do you make any

14 effort to read all of the --

15 JUDGE HUFF: We try our best to be as

16 abreast of the case law as anyone, but I don't think

17 it would make a difference if there's several

18 regional areas versus one area of law. Because we

19 do attempt to also look at other circuit law too to

20 see the trends, or if there's any distinguishing

21 cases or any other body of law out there. So, I

22 don't think that that's a problem.
160

1 Then finally --

2 COMMISSION MEMBER: What about intra3 circuit conflicts where you've got a question for

4 you that you go outside and look at the case law and

5 you say, "I don't know what the law is here." 

6 You've got a test pool, but it's being applied in

7 different ways. Do you have that problem very

8 often? They do it in the 6th Circuit.

9 JUDGE HUFF: On occasion there are,

10 perhaps, two trends and then it may take the

11 appropriate case to resolve that. Because as a

12 district judge, I am amazed. Often, there is no

13 precise case that fits exactly the facts of your

14 case. Then it's up to you to decide what is the

15 law. 

16 Well, I'm not here to say that there are

17 no intra-circuit splits. I am able to say that in

18 general, I think existing procedures on en bank

19 review, for bringing that. If I find as a district

20 court that there is something, I will say that on

21 the record and try to give my reasoning in my

22 opinion or on the record about why I am going the
161

1 way that I am, and then leave that alert the

2 appellate court to be able then to resolve this

3 issue.

4 COMMISSION MEMBER: What about this

5 rotating en bank process?

6 JUDGE HUFF: It works well. It works

7 well. We have had considerable experience with

8 that. As a district court judge, I think that it

9 has served the 9th Circuit very well in resolving

10 cases. There may be some cases in which I would

11 prefer, as a district court, that they take more. 

12 So, my vote would be that they should take more

13 cases en bank because perhaps I have an interest in

14 a particular case because I've been wrestling with

15 an issue and I would like it resolved en bank. But

16 I think that the procedures --

17 COMMISSION MEMBER: When you get an en

18 bank case, you kind of put a little more reliance on

19 it than you would, all things considered, I would

20 say, a panel case?

21 JUDGE HUFF: Probably, but not

22 exclusively because we deal with the cases as we get
162

1 them, whether it's an en bank case or a court of

2 appeals case. I don't feel that we are in a

3 position as a district court judge to disregard a

4 panel opinion.

5 CHAIRMAN WHITE: You certainly don't

6 give an en bank decision less authority than the

7 panel?

8 JUDGE HUFF: I agree with you.

9 CHAIRMAN WHITE: Yes. And you think

10 that it's firm?

11 JUDGE HUFF: Yes, yes.

12 CHAIRMAN WHITE: Yes.

13 JUDGE HUFF: Finally, because I'm in

14 California, we have struggled with what would be the

15 solution? There is no viable alternative that I can

16 think of that would solve the issue. The coastal

17 state problem? Then you have the situation where

18 we've got Arizona, a port of entry, similar to

19 Southern California. Why shouldn't Arizona be with

20 us? Then you have perhaps California dominating any

21 other matter. 

22 I don't believe any viable alternative
163

1 exists to justify the huge expenditure of public

2 monies, and I do think that that should be a factor

3 in your consideration. Why create additional

4 bureaucracy, additional clerk's office, additional

5 circuit executive, additional space, additional

6 administrative time and expense when the 9th Circuit

7 works very well? So, I'm opposed to this.

8 COMMISSION MEMBER: Isn't that what they

9 did when they split California into four districts?

10 JUDGE HUFF: To create additional --

11 COMMISSION MEMBER: It would create

12 additional U.S. attorney, additional clerk,

13 additional executive in the bigger districts. They

14 recreate all that governance machinery and

15 administrative machinery.

16 JUDGE HUFF: That's true.

17 COMMISSION MEMBER: So that's because

18 the districts were getting too big to handle their

19 work, I presume.

20 JUDGE HUFF: But at least --

21 COMMISSION MEMBER: I mean, I wasn't on

22 the bench when they split them.
164

1 JUDGE HUFF: It is true, the trend, at

2 least, for corporations is economy of scale. And

3 that if you look at the marketplace where it's

4 supply and demand, the marketplace is going to

5 bigger consolidated ones for the bottom line. 

6 Similarly, you could make that analogy with respect

7 to taxpayer dollars, that one circuit executive

8 handling personnel matters may be better than having

9 two. 

10 Or certainly this courthouse was

11 beautifully renovated and houses the circuit

12 executive. We have been trying to just simply get

13 land for our San Diego courthouse and have been

14 unsuccessful in doing that. To build a whole other

15 structure would cost millions of dollars and I don't

16 believe it is necessary.

17 COMMISSION MEMBER: I don't believe you

18 can replicate this in San Diego.

19 JUDGE HUFF: Oh, it would be wonderful.

20 COMMISSION MEMBER: I didn't quite

21 understand your answer to Judge Browning's question

22 about dividing the state into districts, judicial
165

1 districts, duplicating all of the outline there. Do

2 you think that that was a mistake? That there

3 should be only one judicial district in California,

4 for example?

5 JUDGE HUFF: No, I don't think that's a

6 mistake. Obviously, if there is a need to have

7 districts and to have staff for each district, that

8 can be done. I just think with the 9th Circuit,

9 it's not necessary to have the duplication of

10 resources.

11 CHAIRMAN WHITE: Thank you.

12 JUDGE HUFF: Thank you.

13 CHAIRMAN WHITE: Judge Kay?

14 JUDGE KAY: Thank you, Justice White.

15 Chief Judge Merritt, Judge Rymer, Judge

16 Browning (indiscernible), I'm Alan Kay, Chief

17 District Judge of the District of Hawaii. I'll try

18 to be very brief and focus my comments essentially

19 on the 9th Circuit situation.

20 The judges of our district are strongly

21 opposed to any split of the 9th Circuit. We feel

22 that notwithstanding its size and the numerous
166

1 judicial vacancies, that the 9th Circuit is

2 operating in a relatively efficient manner. 

3 Moreover, the 9th Circuit has been a pioneer in the

4 areas of self study and innovative adapting to

5 change.

6 We further feel that with the

7 significant increase in case filings across the

8 country, that the corresponding need for additional

9 judges that other circuits will shortly face the

10 same problems of size that the 9th Circuit has now. 

11 It's our conclusion that the interests of Hawaii are

12 well represented and recognized in the 9th Circuit.

13 Finally, we feel that any split of the

14 9th Circuit would general substantial expenses. The

15 administrative expenses, as Greg Walters mentioned

16 earlier, would almost double. There would be a need

17 for additional appellate buildings. We feel that

18 any split would be extremely disruptive to the

19 judicial process and to the personnel involved. 

20 On the other hand, if it is determined

21 that a split is necessary, then the District of

22 Hawaii feels that it would be in its best interest
167

1 to be aligned with the Pacific Northwest states

2 which we sometimes call the proposed 12th Circuit,

3 rather than to be included with the state of

4 California and perhaps one or two other states.

5 CHAIRMAN WHITE: Why is that?

6 JUDGE KAY: Our reason is that even

7 though we do have some affinity in law and

8 commercial matters to the State of California, we

9 feel that this (indiscernible) would be sharply

10 outweighed by our being an inconsequential adjunct

11 district to a circuit that would be completely

12 dominated by California. We do have close ties with

13 the Northwest. We have cultural and historic ties. 

14 We have commercial and banking ties. Many of our

15 people were educated --

16 COMMISSION MEMBER: What does it mean to

17 be completely dominated by California? What does

18 that really mean?

19 JUDGE KAY: Well, it means that with the

20 number of judges that would be from California in

21 that circuit --

22 COMMISSION MEMBER: Are they different
168

1 from Washington and Oregon and Montana and Idaho?

2 JUDGE KAY: Well, I think as Chief Judge

3 Hatter of the Central District of California

4 mentioned earlier, at this time with California,

5 there is some balance throughout the 9th Circuit

6 with all the other states involved. And that

7 there's more representative of balance allowed to

8 the other districts. Whereas, with California with

9 a number of lawyer representatives, the control of

10 committees and so on, we feel that we would be

11 dominated.

12 That concludes my remarks. Thank you

13 for the opportunity to appear before you.

14 CHAIRMAN WHITE: Thank you, Judge.

15 Now, I come to Lloyd George.

16 JUDGE GEORGE: Mr. Chairman, I'm

17 delighted to be here with your Commission. I'll try

18 to be brief. I would advise you that I speak only

19 for the judges of the District of Nevada, but I

20 speak for them and their feeling is unanimous. I'm

21 grateful to be here. I would say as well that the

22 Nevada Bar Association agrees with the position that
169

1 the judges take. 

2 We like the 9th Circuit a great deal. 

3 We think it's an excellent circuit. We think it's

4 well managed. We think they do some things that are

5 of extraordinary importance. They provide a special

6 kind of collegiality that, in my judgment, goes

7 beyond just circuit judges and their collegiality. 

8 I think the circuit has made an asserted effort to

9 make district judges, bankruptcy judges and

10 magistrate judges and clerks feel good about

11 themselves. They have a variety of programs

12 including Conferences of Chief Judges for each of

13 those groups that I think combine to make us a very

14 cohesive group. I think we work very well together.

15 COMMISSION MEMBER: Let me ask you this

16 question.

17 JUDGE GEORGE: Yes?

18 COMMISSION MEMBER: How would all of

19 that be adversely affected by reconfiguring the

20 circuit into California, Nevada and Arizona?

21 JUDGE GEORGE: Well, I'm not sure that

22 it would, but I see so many difficulties, Professor,
170

1 that might come as a consequence of establishing a

2 precedent of dividing circuits. We may be able to,

3 because of the past history, maintain the kind of

4 collegiality that we have. But we have considered

5 very carefully the question of dividing the circuit

6 and we just feel very strongly that there really is

7 no legitimate reason for doing that.

8 Some of that credit, a great deal of the

9 credit, belongs to some genius in the

10 administration, especially from Chief Judge

11 America's Jim Browning. I think the organization

12 has been established that has made the circuit

13 function and work very well.

14 JUDGE MERRITT: Are your cases argued

15 primarily in San Francisco, in Pasadena? Where?

16 JUDGE GEORGE: I'm sorry, Judge Merritt.

17 JUDGE MERRITT: Where are the cases

18 coming from Nevada, that is appeals that are appeals

19 from your court --

20 JUDGE GEORGE: They go to both,

21 primarily San Francisco and Southern California. 

22 But the circuit has made an effort to accommodate
171

1 litigants. For example, the circuit has been able

2 to sit in Las Vegas. We're very pleased about that,

3 and the circuit, again, makes an effort to

4 accommodate litigants. I think, Judge Rymer, that

5 you do that from time-to-time. Just making the

6 presence of the circuit felt is an important thing

7 for our district and we would hope that that would

8 continue. But generally, our cases are heard in San

9 Francisco or in Southern California, Judge Merritt.

10 We think, as well, that the circuit

11 conference that is conducted -- and Judge Rymer was

12 the chairman of our conference at one time. I still

13 remember her suggesting that all things -- what was

14 it you said, Judge Rymer?

15 JUDGE RYMER: I'm sure it was really

16 (indiscernible) degree on that.

17 JUDGE GEORGE: It was a meaningful

18 observation. I'm a senior judge, incidentally, and

19 my memory has problems that it didn't have a few

20 years ago.

21 JUDGE RYMER: Well, I'm not and my

22 memory is exactly the same. So --
172

1 JUDGE GEORGE: All is well that ends is

2 what you said.

3 Let me just take a moment to indicate

4 that I think the circuit is remarkably well

5 administered. As far as our judges can see, there's

6 a consistency. The decisions are timely. What is

7 really needed in the 9th Circuit is to provide the

8 help that you need and that you're entitled to. I

9 think with the addition of the judges that the

10 circuit is entitled to, all of these things that we

11 criticize would be improved.

12 Let me just emphasize three brief areas. 

13 Number one, whether a precedent of preserving and

14 creating smaller circuits is realistic given, I

15 think, the monumental growth of the federal

16 judiciary. You're all familiar with the projected

17 growth that anticipates the potential for 30 to 40

18 circuits. It seems to me that the problems

19 attendant with that kind of division are far more

20 significant than the problems perceived in the 9th

21 Circuit at this point.

22 JUDGE BROWNING: Well, Judge George,
173

1 take Professor Meador's suggestion in an earlier

2 question and take the converse of that. What if

3 there were just one circuit court of appeals sitting

4 in division throughout the country with the

5 flexibility to move to where the caseloads were and

6 that sort of thing.

7 JUDGE GEORGE: Judge Browning, I'm not

8 sure that I can respond intelligently to that. I

9 appreciate the fact that it has been suggested.

10 JUDGE BROWNING: We don't require

11 intelligent responses.

12 JUDGE GEORGE: Well that's a break for

13 me. 

14 I think it's a thought -- matter of

15 fact, I think all of these matters are thoughts

16 worthy of reconsidering and thinking because the

17 time is coming, as far as the future is concerned,

18 that we have to think of resolving some of the

19 problems that we're looking at today and that you

20 especially are looking at nationwide. That might be

21 something that should be looked into carefully.

22 You asked the question, Judge Browning,
174

1 is there a time -- and I think it's an insightful

2 question -- when big might be too big? Again, I'm

3 not sure that I can answer it without a lot of

4 careful thought, but I suppose the answer is perhaps

5 so. But I reiterate that in my judgement, that time

6 hasn't come for the 9th Circuit at this point. It

7 just seems to me that there are too many viable

8 alternatives to consider that will correct the

9 problem, beginning with providing judges to the 9th

10 Circuit that are needed. And then the idea of some

11 --

12 JUDGE RYMER: There's -- that have been

13 appointed to you.

14 JUDGE GEORGE: I'm sorry, Judge Rymer.

15 JUDGE RYMER: From the point of view of

16 the district court, what objective markers would you

17 suggest for whether a circuit is functioning

18 effectively?

19 JUDGE GEORGE: If it is functioning

20 effectively, I suppose --

21 JUDGE RYMER: How would you measure it

22 other than just "I think it is"? I mean, what
175

1 objective indicia are there from the point of view

2 of the district court?

3 JUDGE GEORGE: There are several that

4 I've mentioned. I think there is a consistency,

5 Judge Rymer. I don't see any difficulty with the

6 lack of consistency.

7 JUDGE RYMER: Okay, so you'd say that

8 consistency of decisions is one objective marker?

9 JUDGE GEORGE: Yes. I think

10 collegiality is probably another. I think the

11 timeliness of the decisions is another. I think

12 perhaps the cost concepts, and I'm not able to break

13 those down. But I have a feeling that we would look

14 at greater cost if we started dividing circuits more

15 and creating more potential difficulties. Those

16 questions and the various criteria have been

17 considered. As far as I can see from my readings

18 and from my own personal feelings and observations,

19 the circuit seems to be addressing problems well. 

20 If, indeed, it is time to start to do things

21 differently, there are so many other alternatives to

22 avoid. 
176

1 This multiplication of circuits that

2 seem to me to make a great deal more sense. For

3 example -- and I may be wrong. You correct me if

4 I'm wrong -- my understanding is the last several

5 years, that some 40 percent, not weighted but some

6 40 percent, of the appeals come from prisoner 1983

7 appeals. That, to me, is a terrible problem and

8 doesn't really make any sense. You know as well as

9 I do that we have considered questions about chunky

10 peanut butter or smooth peanut butter and I think a

11 potential resolution to that vast number of cases

12 would be to create a structure of administrative law

13 judges, independent judges, who go directly to the

14 prisons and resolve the vast majority of those

15 problems. If a question arises like an overcrowded

16 jail, there's a means through the Administrative

17 Procedures Act to get those kinds of matters before

18 the district court and eventually the circuit court. 

19 That, it would seem to me, would be one of the means

20 of reducing what is perceived by some to be a

21 significant overload. The possibility, and I

22 mentioned this in the paper, of some kind of
177

1 sentencing appeal process that would invite district

2 judges to sit on appeals questions with, I suppose,

3 some kind of a cert to consider those questions that

4 should go beyond that. 

5 You've talked a great deal about

6 bankruptcy and this is a special area of interest

7 for me. As was mentioned, one of the things that

8 could be done to correct all of the problems, as I

9 see them with the Bankruptcy Appellate Panels, it's

10 a marvelous experiment in specialization and it has

11 worked very well for this circuit. I think

12 nationally, if you had some 25 Article III judges

13 who sat on Bankruptcy Appellate Panels, they could

14 handle the entire nation's bankruptcy appeals. They

15 would be fungible judges. It would avoid the

16 administrative structure. District judges have not

17 only a problem of handling appeals, but they're

18 frustrated because they think they have a

19 responsibility without any authority. 

20 If the Article III authority were taken

21 from the Bankruptcy Appellate Panels, they would

22 really be an independent court and you would avoid
178

1 the problems between district judges and bankruptcy

2 courts. It would correct the problem of Bank of

3 Mowery that suggests that they don't have any

4 precedential value. It would give them a

5 precedential value. That would be the only appeal,

6 except perhaps a cert process to go to the entire

7 circuit if, in fact, there was some perceived

8 inconsistency in commercial law. It would also make

9 for a force of fungible judges. Those judges could

10 sit on non-core matters.

11 I was a bankruptcy judge and for the

12 most part, practitioners used that process of saying

13 this is a non-core matter and it requires an Article

14 III judge to sit on it. It's a ploy in most cases. 

15 If those panel judges, Bankruptcy Appellate Panel

16 judges were available to say "we will hear that

17 case", in most cases I think they would withdraw

18 their objection to a bankruptcy judge hearing those

19 matters. It would correct that kind -- they would

20 be fungible judges to help in other areas.

21 Mr. Chairman, there were several other

22 matters but I think for the most part, they've been
179

1 covered. If I can take only one minute?

2 The second matter is whether there's any

3 rational way to divide without splitting California,

4 and I don't think there is. I don't think any way

5 except dividing California would adjust the

6 workload. I've talked to you about the advantages

7 of the big circuit.

8 Let me just conclude by saying that at

9 the very least, circuit division based on arbitrary

10 and I think, for the most part political

11 considerations, should be put on hold until all of

12 the ramifications of circuit divisions have been

13 thoroughly explored with a view to present to the

14 present and future contours of the federal

15 judiciary. The Judicial Conference of the United

16 States concluded in its long-range plan, "division

17 of a particular circuit or realignment of circuit

18 boundaries should occur only when compelling

19 empirical evidence demonstrates the relevant courts

20 inability to operate effectively as an adjudicative

21 body." 

22 Perhaps the time, as I indicated in my
180

1 paper, that the assumption that bigger is better is

2 not really accurate and we ought to start to give

3 serious consideration to the idea that perhaps

4 bigger in some ways to a point, Judge Browning,

5 might be better.

6 Thank you for your patience with us. 

7 Thank you.

8 CHAIRMAN WHITE: Well, it's a good thing

9 your predecessor gave you some time.

10 JUDGE PATEL: Justice White and Members

11 of the Commission, it is a pleasure to appear before

12 you today. This is my city, the Northern District

13 of California, where I sit as Chief Judge. This

14 beautiful courthouse -- I'm sorry, Marilyn -- but we

15 were able to replicate it here after the earthquake

16 the last time. But maybe that's a good place to

17 start.

18 This building is an extraordinary

19 building and it's a historical building, but I think

20 in time because of where we are in time, this

21 building and many other courthouses across the

22 country will be an anachronism. We seem to be, if
181

1 we're talking about dividing the 9th Circuit and

2 possibly in the future other circuits, really moving

3 against the historical tide. We've been on the

4 threshold and walking through the head threshold for

5 some time. There's some extraordinary technological

6 changes and advances.

7 Other institutions are farther up that

8 technological ladder than we are. What we're

9 looking at is not merely national issues anymore,

10 but global issues. Here we are, talking about much

11 more parochial ones. I suggest to you that I think

12 your mandate is such that you're not just looking at

13 the 9th Circuit issue but at the configurations of

14 courts of appeals, that what we have is an

15 opportunity at this time, to look at where we are

16 going in the future with the kinds of advances that

17 we have; that make it possible already for the 9th

18 Circuit to accomplish much of its mission despite

19 its geographical size. But also, I think we speak

20 to what the courthouse or the court of the future

21 will be.

22 Many courts already -- for example, in
182

1 this state, appellate courts conduct oral argument

2 by telephone. I don't know that that's a

3 particularly good way to do it, but video

4 conferencing certainly provides an opportunity to do

5 that. Electronic filing is already being done in

6 the federal courts and is coming up to speed in many

7 of the districts. We have to be concerned also, I

8 think, with pricing ourselves out of the market. I

9 think the federal courts are losing a number of

10 cases where we should be hearing cases because of

11 the cost. Corporations and other entities are

12 turning to ADR. That affects the development of the

13 law, I believe, in many ways and leaves us with a

14 very unbalanced kind of caseload. It doesn't really

15 reflect what the federal courts have generally been

16 about.

17 COMMISSION MEMBER: Are you headed

18 toward endorsing the proposal for a single

19 nationwide court of appeals, abolishing the circuit

20 line?

21 JUDGE PATEL: I'm not sure I'm ready to

22 go that far. I'm not sure where this would take us. 
183

1 But I think that it is something that the Commission

2 ought to look at, summing up the data that's

3 necessary, take a look at what can be done in the

4 future whether we're talking perhaps about fewer

5 circuits rather than more circuits because of the

6 ability to communicate in the extraordinary ways

7 that we have achieved so far and that I think we see

8 in the future as well. It may mean that we would

9 have fewer circuits rather than one national

10 circuit. I don't know the answer to that question,

11 in all honesty.

12 COMMISSION MEMBER: Do you see much

13 difference in the quality here in San Francisco in

14 the adjudicatory process in the federal district

15 courts and in the state trial courts?

16 JUDGE PATEL: Yes, thanks to the trilogy

17 of cases, Cellutex, et cetera. The reason I say

18 that is because federal judges are, as any of our

19 state court judges will tell you, able to grant

20 summary judgement with a greater likelihood of being

21 affirmed by the court of appeals or being secure in

22 doing that.
184

1 COMMISSION MEMBER: The difference is

2 that you get more jury trials in the state court.

3 JUDGE PATEL: You get more jury trials

4 in the state court. You also --

5 COMMISSION MEMBER: And that's about it.

6 JUDGE PATEL: -- the quality of

7 lawyering, I have to say, sometimes is not as strong

8 in the state court, but that is changing. That's

9 changing rapidly. What I see happening with a

10 proposal to split the circuit, really, is to make us

11 more parochial. 

12 You know, we have one circuit where I

13 think there's one vacancy but there are six active

14 judges. When I compare that -- not that they're not

15 doing a great job, but when I compare that to the

16 kind of cross-fertilization that we have in the 9th

17 Circuit with the judges who have access to judges of

18 other parts of the circuit and the opportunity to

19 deliberate with them and learn from them, I think

20 that it really suits where the litigants that we

21 serve are going, at least the commercial entities,

22 by having that picture. 
185

1 I mean, when they have a Pacific REM

2 Conference, they're talking about all of the states

3 within this jurisdiction for the most part, with the

4 exception, you know, of maybe a couple of the

5 internal states, and the interests there are the

6 same. I don't see that consistency is a problem in

7 this jurisdiction. Ultimately, it's achieved. I

8 think that the chief judges of this circuit have

9 done an extraordinarily good job in trying to

10 overcome some of those problems before one gets to

11 the en bank situation. Those judges can tell you

12 more what they're doing than what I've seen, but

13 certainly, screening cases in advance so that cases

14 involving the same or similar issues can be resolved

15 by the same panel. A variety of techniques can

16 certainly be used if consistency is a problem.

17 Also, I might note from looking at some

18 of the data that size really has very little, if

19 anything, to do with the time within which a

20 disposition is achieved. I noted that one of the

21 circuits which has a fairly large number of circuit

22 judges, active circuit judges, has a median caseload
186

1 compared with all of the other circuits. Also, one

2 of the lower per judge caseloads looking at the

3 filings each year and yet, it has the longest time

4 to disposition. 

5 The 9th Circuit has managed to do very

6 well once panels are empowered in terms of

7 disposition time. It is because of the politicized

8 nature of this whole inquiry and the fact that the

9 vacancies haven't been filled in this circuit, and

10 that it has been difficult to summon up panels so

11 that those cases can be distributed more readily. 

12 I know that your lunch was to start

13 almost a half-hour ago so I will just close with

14 this. Your job is to do something that's very

15 rational. That is, to analyze the situation, look

16 at the data statistics, come up with a report and

17 recommendation with some rational responses. I'm

18 not sure that it is possible to -- that that will

19 carry its day in Congress because really, this whole

20 issue stems --

21 CHAIRMAN WHITE: Tell us about it.

22 JUDGE PATEL: -- from the politics. 
187

1 It's interesting because your politics --

2 COMMISSION MEMBER: No, it's not

3 entirely politics. If you're talking about what the

4 future of the courts of appeals should be, there are

5 judges and lawyers who are genuinely concerned about

6 it.

7 JUDGE PATEL: Oh, yes. No, but I'm

8 talking about in terms of the split of the 9th

9 Circuit. It's a very politicized issue. If they

10 would forgive us our vacancies, I don't think we

11 would really have any issue at all with respect to

12 how long it takes to dispose of cases. I don't

13 really think that's a serious problem once those

14 vacancies are filled.

15 COMMISSION MEMBER: I don't think its

16 current critics would go to sleep if you filled the

17 vacancies.

18 JUDGE PATEL: Well, that's

19 (indiscernible). What's interesting, however, is

20 the ideological differences, not geographic

21 differences. If one looks at the opinions of this

22 circuit or another circuit, it really is ideological
188

1 differences which will occur and should occur in

2 every court.

3 I will leave you with just one thought,

4 and I wasn't totally facetious when I closed with it

5 in my statement. If you make a recommendation for

6 splitting the circuit, or that other circuits be

7 created or anything that's going to involve the

8 building of new courthouses or if Congress does so,

9 then I strongly urge that any legislation that's

10 passed include a provision that no new courthouse

11 will be named -- and I apologize to you, Judge

12 George, for what I'm about to say -- after a living

13 person. That may take some of the initiative or the

14 steam out of some of the proposals that I've seen.

15 Thank you very, very much.

16 CHAIRMAN WHITE: All right.

17 (Whereupon, off the record for a lunch

18 recess, to reconvene later this same day.)

19

20

21

22
189

1 A-F-T-E-R-N-O-O-N S-E-S-S-I-O-N

2 CHAIRMAN WHITE: Are we ready? They'd

3 better be because we've got a long list, but I'm

4 sure everyone will be interesting.

5 Daniel Kolkey, what do you do for the

6 governor?

7 MR. KOLKEY: I'm the governor's legal

8 affairs secretary.

9 CHAIRMAN WHITE: Oh, well, we'll be glad

10 to hear you.

11 MR. KOLKEY: Thank you very much.

12 My name is Dan Kolkey. I'm Governor

13 Wilson's legal affairs secretary and I'm honored to

14 be here before the Commission on the Governor's

15 behalf.

16 The Governor believes that there are two

17 objectives that ought to guide the Commission's

18 recommendations. One is that any recommendation

19 made ought to promote reasonably timely appellate

20 decisions; and secondly, the recommendations ought

21 to promote decisions that are analytically

22 consistent. Based on those guidelines and faced
190

1 with an increasing caseload, the Governor does not

2 believe that the solution is a split of the 9th

3 Circuit or of any other circuit. Indeed, a split

4 will simply generate more inconsistencies between

5 the two new circuits.

6 Instead, the Governor believes that the

7 solution lies in addressing, in constraining the

8 rate of increase in the caseload. Because unless

9 the rate of increase in the caseload is addressed,

10 in 30 years, there will be another commission that

11 will be determining whether the 17th Circuit should

12 be split. The steps that the Governor thinks could

13 be taken as measured steps to help constrain the

14 rate of increase are the following. 

15 First, he believes that the settlement

16 processes in the appellate courts could be

17 completely revamped and made more effective through

18 a mediation program that's held after the

19 appellant's opening brief is filed, and I'll get to

20 that in a moment. Secondly, he thinks that there

21 could be some conservation of federal resources if

22 the abstention doctrines were not only clarified but
191

1 codified and institutionalized in Rule 12 of the

2 Federal Rules of Civil Procedure which would

3 encourage more cases to be deferred to the state

4 courts which not only will conserve resources, but

5 also would promote federalism in commodity. 

6 Third, he thinks that there ought to be

7 some reconsideration of the amount in controversy

8 for diversity cases, possibly an increase to

9 $100,000. Fourth, while this is beyond the scope of

10 my testimony, and perhaps this Commission's charge,

11 clearly, an increasing rate of cases can be

12 constrained by addressing the scope of standing for

13 various federal programs.

14 If one has a circuit with more cases and

15 perhaps more judges, it's also clear that there has

16 to be a means of providing more analytically

17 consistent decisions --

18 COMMISSION MEMBER: Could I ask you a

19 question?

20 MR. KOLKEY: Yes.

21 COMMISSION MEMBER: The Governor is

22 really suggesting in many ways that we give more
192

1 credence to the fact that we're a federalist

2 structure and can rely on the states and the state

3 courts to decide cases. 

4 One of our colleagues on the bench,

5 Judge Newman, has suggested along the same lines --

6 he was Chief Judge of the 2nd Circuit -- that a

7 certain category of cases, particularly all

8 diversity cases be included, but some other cases

9 that rely heavily on state law -- for example, ERISA

10 type cases -- have to be filed in the state court. 

11 If there is a diversity of citizenship or a federal

12 question in the case, in this category of cases, you

13 can seek a removal petition under some criteria that

14 would allow the district judge to say "well, there

15 is no likelihood of home cooking in a case like

16 this. No real reason this needs to be in the

17 federal court" and leave it in the state court.

18 As you know, diversity cases are 15 to

19 20 percent of the caseload. You could get a

20 significant number of cases that are now in the

21 federal courts back into the state courts under this

22 kind of procedure. Now, is that along the lines
193

1 that the Governor is thinking?

2 MR. KOLKEY: Well, he hasn't gone so far

3 as to go to that specific proposal, but I do think

4 that he very much promotes a way of

5 institutionalizing a deference to state courts. 

6 Certainly, a program that provided that certain

7 cases would be filed in state courts with the right

8 of removal would be a way of institutionalizing, a

9 means of deferring to the state courts. 

10 Indeed, while the scope of testimony is

11 too short to give a number of examples, recent

12 examples including the Arizonians for Official

13 English versus Arizona, Supreme Court case suggests

14 that a lot of federal resources, litigation in both

15 the federal district court, courts of appeal and the

16 Supreme Court, could have been avoided had there

17 simply been a willingness to certify a question of

18 novel state law to the state courts in Arizona. 

19 Which, when those state courts got the issue in

20 Arizonians for Official English did, in fact,

21 dispose of the case making, frankly, the nine years

22 of litigation in the federal courts a nullity. But
194

1 that sort of concept is along the lines of finding a

2 way to institutionalize it.

3 The Governor's thought in terms of

4 institutionalizing deference to the state courts was

5 to provide for a motion for abstention in Federal

6 Rule 12 of the Federal Rules of Civil Procedure. So

7 that, in essence, there was an acknowledgement that

8 that is an appropriate motion to make at the

9 beginning of a case, and an encouragement for the

10 courts to consider that a legitimate motion. 

11 Because oftentimes courts --

12 COMMISSION MEMBER: Even when there's

13 not a parallel state proceeding, in other words, you

14 would invoke abstention and require a filing of the

15 case in the state court if there's no parallel state

16 proceeding going on?

17 MR. KOLKEY: Well, the fact is, there

18 are extension doctrines where that would be

19 appropriate, for instance in Pullman. You don't

20 need a parallel state proceeding if there's an

21 unsettled question of state law that would avoid or

22 change the nature of the federal question being
195

1 considered. It's appropriate to abstain on the

2 basis of Pullman even though there is not presently

3 an ongoing state proceeding. Of course, the

4 certification procedure that the majority of the

5 states have are procedures where there's not an

6 ongoing state proceeding, but through certification

7 one lets the state courts decide the issue of state

8 law. But to wind that point up, I think that one

9 would be surprised if one looked at the number of

10 cases where abstention was appropriate, where either

11 it was denied but there's no reported opinion

12 because it wasn't worth the parties taking the

13 matter up on appeal after the conclusion of a trial,

14 or where the matter was simply denied without

15 further thought by the court or the parties. 

16 And indeed, the Proposition 187

17 litigation in California, no one talked about that

18 in terms of abstention but there was pending state

19 court proceedings filed the very same day as the

20 federal proceedings in Prop 187 litigation. The

21 fact is there were several state proceedings as well

22 as several federal proceedings. Abstention could
196

1 have been used. The fact is, it was invoked at the

2 beginning of the case unsuccessfully, but could have

3 been used again to defer some of the federal

4 resources. In fact, you had parallel proceedings on

5 parallel issues of law going on in the federal and

6 state courts during that litigation as well.

7 Perhaps I could take a moment to just

8 point out and summarize the reasons for the

9 Governor's opposition to a split of the 9th Circuit

10 and then go back to the issue of the mediation

11 program that he has in mind. Just to summarize the

12 Governor's position on the 9th Circuit, he believes

13 that a split would be unwise because one, it

14 wouldn't necessarily reduce the new circuit's

15 caseload. The fact is, Congressional proposals for

16 a split that, say, had Nevada and California in a

17 single circuit resulted in a 50 percent increase in

18 the workload. In fact, any circuit that has

19 California, unless there is a significant increase

20 in judges, is going to find itself with an increase

21 in its workload.

22 Secondly, a split is going to -- and I
197

1 know you've heard this before -- result in

2 inconsistent case law on the West Coast. A split

3 will result in inter-circuit conflicts which

4 wouldn't have otherwise existed where the circuit's

5 en bank procedures could have resolved the matters. 

6 A split of California as part of a 9th Circuit split

7 would not only have all of these problems, but also

8 result in forum shopping between the northern and

9 southern parts of the state, which from the state's

10 perspective is a real problem because one can file a

11 suit against the state anywhere in the state. If

12 people start forum shopping as a result of a split

13 of California, that's going to create real problems

14 in terms of litigation against state agencies, of

15 which there is much.

16 Yes?

17 CHAIRMAN WHITE: Mr. Kolkey, you have

18 about a minute-and-a-half. Which do you want to

19 clear up?

20 MR. KOLKEY: Let me go to the mediation

21 program because I think this is somewhat new in

22 terms of its approach.
198

1 If one had a mediation program for

2 appeals where the mediation was held after the

3 appellant's opening brief --

4 COMMISSION MEMBER: I think they've got

5 that.

6 MR. KOLKEY: Okay.

7 COMMISSION MEMBER: In the 9th Circuit

8 recently where the mediation program that you set up

9 is after the briefs have been filed. Isn't that the

10 way it works? I think they've got recently.

11 MR. KOLKEY: The thought would be is

12 that if you had it after the appellant's opening

13 brief was filed before the appellee's brief was

14 filed, not only would that be the moment in time

15 when the appellant is most familiar with the

16 weaknesses and strengths of its case, but the

17 appellee could save the time of completing a brief. 

18 And there would be another benefit to

19 this. If you have a mediation during the briefing,

20 not only are the parties familiar with their

21 weaknesses and strengths but if the matter doesn't

22 settle, the court will get much more focused
199

1 arguments in the appellee's brief and reply brief as

2 a result of that mediation. Thank you.

3 CHAIRMAN WHITE: All right, thank you.

4 Barry Portman?

5 MR. PORTMAN: Thank you, Mr. Justice.

6 My name is Barry Portman. I'm the

7 Federal Defender for the Northern District of

8 California. I have been a federal defender in the

9 districts of California for the past 27 years.

10 All the federal defenders within the 9th

11 Circuit have submitted a statement to the

12 Commission. The essence of the statement is that we

13 feel that the 9th Circuit as currently structured,

14 is functioning efficiently, is delivering consistent

15 law, and we oppose any suggestion that the 9th

16 Circuit's current structure be changed. I would

17 like today in the short time I have to devote my

18 remarks to something I don't think that has been

19 raised. It pertains particularly to California and

20 to the federal criminal law in California.

21 I have looked at the proposed

22 restructuring of the 9th Circuit and each one of the
200

1 proposals essentially tries to grapple with the 800

2 pound gorilla that arrived at breakfast, the state

3 of California. We have 63 percent of the circuit's

4 population and almost two-thirds of the case

5 filings. There's the so-called "horse collar

6 proposal" termed such by Judge Chambers many years

7 ago which, I guess in conversations with his horse,

8 Tom, seemed appropriate, and that's California

9 alone. 

10 Then there are what I call variations on

11 that, fig leaf variations: California with the

12 Pacific Islands, or California with Nevada, but it's

13 still just California. Finally, there is the "Sever

14 at the Tahattchapee Proposal" which is to split

15 California in half. In one way it would be the new

16 brown circuit: Southern California, Arizona,

17 Nevada; and then the green circuit: Northern

18 California and everything north of us. Then there

19 are variations on this: the Troyka, the three

20 circuits. But all of these proposals fail to deal

21 with the problem in California. That is a problem

22 occasioned by a proposition that was passed in 1982
201

1 by the voters of California called Proposition 8.

2 That proposition was an initiative which took away

3 and eliminated any independent state ground in the

4 California courts to exclude evidence and made the

5 California exclusionary rules -- not just the 4th,

6 but the 5th and 6th amendment ones -- dependent on

7 the federal court's interpretation of the

8 constitution. 

9 So that, if we had a California circuit,

10 if we had one that's divided, we face the prospect

11 of a different constitutional standard at the

12 current county line. We have Interstate 5, our own

13 California/Mississippi with commerce both legal and

14 illegal flowing back and forth. But we would have

15 police officers that might be looking at a different

16 standard and different conduct as to what they could

17 do with regard to motorists' arrests and car

18 searches.

19 If we had a circuit for California as a

20 whole, if it was not split, we would still have the

21 problem of creating what I would call a "Super

22 California Supreme Court." It would be a Federal
202

1 Super California Supreme Court, but the judges would

2 all be from California. It seems to me that the

3 public would not appreciate as lawyers might that

4 these California judges are really propounding a

5 national law, not a super California law. It seems

6 to me that it would be much more difficult to have a

7 California statute, perhaps, declared

8 unconstitutional and be accepted by the public if it

9 was done by three California federal judges as

10 opposed to a judge from the state of Washington, and

11 one from the state of Arizona and one from the state

12 of Alaska.

13 So, my urging to the Commission is that

14 you consider, if you may use a play on Winston

15 Churchill's aphorism that the 9th Circuit as

16 currently structured may be unwieldy, but not so

17 unwieldy when you consider the alternatives.

18 CHAIRMAN WHITE: Thank you.

19 MR. PORTMAN: Thank you.

20 CHAIRMAN WHITE: Thank you.

21 Maria Stratton?

22 MS. STRATTON: Thank you, Your Honor. I
203

1 apologize for my lateness. My plane was delayed

2 from Los Angeles.

3 CHAIRMAN WHITE: Oh, you were right on

4 time.

5 MS. STRATTON: Well, then I guess you

6 were late, huh?

7 My name is Maria Stratton and I am the

8 Federal Public Defender for the Central District of

9 California. I have practiced both civil and

10 criminal law in this circuit for the last 17 years

11 and have been the Federal Public Defender for the

12 last five years. I hold the distinction or the

13 curse, depending on where you come from -- but I

14 think it's the distinction of running the largest

15 Federal Public Defender office in the country with

16 the largest capital habeas corpus practice in the

17 country.

18 COMMISSION MEMBER: Could I ask you a

19 factual question? What percent of your cases get

20 appealed that you are defending to the 9th Circuit

21 after a disposition at the trial level?

22 MS. STRATTON: Well, I would say, Your
204

1 Honor, of the 600 appellate cases that the 9th

2 Circuit defenders file each year in the 9th Circuit,

3 we probably file 225 of those each year. So, we

4 have a large percentage. I would say with our

5 annual caseload, closing is about 2,200 cases. So,

6 that would be about ten percent of our cases end up

7 coming to the appellate court.

8 COMMISSION MEMBER: In what way would

9 your work, work at your office, be adversely

10 affected by a division of the 9th Circuit?

11 MS. STRATTON: Your Honor, I want to

12 talk about a couple of things that are maybe less

13 statistically based and more subjective. Maybe this

14 is fine since you're in California and it's more a

15 touchy-feely type of environment, but I want to talk

16 about the quality of the practice in the 9th

17 Circuit. 

18 Because when I was preparing for this

19 presentation today, I did a survey, an informal

20 survey, of the Federal Public and Community

21 Defenders throughout the country. What I wanted to

22 know was how many of you get real opinions out of
205

1 your appellate courts, opinions that tell you why

2 your client's conviction is being affirmed which is

3 generally the majority of what happens in our cases.

4 COMMISSION MEMBER: On the sentence?

5 MS. STRATTON: Yes. 

6 What I got was a very surprising

7 response when you compare it to the statistics that

8 I saw regarding case filings in the circuit courts. 

9 That was that the defenders from the 5th and the

10 11th Circuits routinely reported that over a third

11 of their criminal appeals are disposed of in one

12 word dispositions, generally affirmed with nothing

13 else. Not a paragraph of explanation, nothing. 

14 These are the two circuits that were once one.

15 COMMISSION MEMBER: Excuse me, Ms.

16 Stratton. Are those cases, if you know, disposed of

17 prior to the argument in the case?

18 MS. STRATTON: I don't know that, Your

19 Honor. I asked generally for what percentage of

20 their cases were disposed of --

21 COMMISSION MEMBER: What percentage of

22 your cases get orally argued?
206

1 MS. STRATTON: I would say probably a

2 third to a half of our cases get oral argument.

3 COMMISSION MEMBER: Do you ask for oral

4 argument in every case on appeal?

5 MS. STRATTON: Well, in this circuit, we

6 don't really have to ask. It's generally given to

7 us unless the court tells us we're not going to get

8 it.

9 COMMISSION MEMBER: You're not getting

10 oral argument in half to two-thirds of your cases on

11 appeal.

12 MS. STRATTON: That's correct. And we

13 generally will make a determination of whether we

14 think we really have something to add to the briefs.

15 CHAIRMAN WHITE: But you still are

16 getting an explanation.

17 MS. STRATTON: But we're still getting

18 an explanation and that's what I want to talk about

19 today. 

20 Because what other profession or

21 occupation gets away with never giving an

22 explanation? If you went to a doctor and your
207

1 doctor said to you, "you have cancer and you're

2 going to die in six months" and stopped there. If

3 you went to a plumber and your plumber comes to your

4 house and says "you need to spend $500.00 on a new

5 garbage disposal", or my personal favorite which is

6 the car repairman who says "I'm sorry, your car has

7 died. You need to buy a new car" with no other

8 explanation. What consumer -- and I speak as a

9 consumer here -- would let you get away with that?

10 That's my concern about the fact that in

11 the 9th Circuit, we don't get that. We get an

12 explanation. It's important because as a consumer,

13 the public understands, gets to understand that the

14 court is up there thinking about and taking the time

15 to provide a public service and to give an

16 explanation. It's important for the litigants, it's

17 important for our clients to know and for us to be

18 able to tell the clients what happened in their case

19 and not just to kind of conjecture about what

20 happened. And it's important for the development of

21 the case law because that's really what the court of

22 appeals is all about. It's not just about deciding
208

1 or processing cases. It's about giving --

2 CHAIRMAN WHITE: Are you suggesting that

3 the opinions you get in a non-argument case are

4 thorough enough to satisfy you and your client?

5 MS. STRATTON: Well, Your Honor, I guess

6 it depends on the case. Sometimes I feel that way

7 and sometimes I don't, but at least I'm able to go

8 back to my client and say "this is what the court

9 believes is going on here" and to give them an

10 explanation instead of saying "I don't know. I have

11 to guess. The court just said affirmed."

12 COMMISSION MEMBER: Even with reasons

13 you might comment, they were all wet, I suppose?

14 MS. STRATTON: Absolutely, and at least

15 I can tell the client that. But when you walk away

16 with a decision that says affirmed or through the

17 appellee reversed with nothing else, although that

18 rarely happens, you're left with nothing to show for

19 the public, to show for the development of the case

20 law, for me as an individual lawyer representing an

21 individual client to give to the client. 

22 Now, is that because the judges of the
209

1 9th Circuit are better judges than the 5th and 11th

2 Circuit? I don't think so. I'm not going to say

3 that here, but I don't think so despite the number

4 of 9th Circuit judges in the vicinity. But I think

5 that what we would be able to say is that the

6 quality of judging is better and why is that? I

7 think it comes from the bigness of the circuit. The

8 circuit has the resources to spread around and to be

9 able to take advantage of the economy of scale that

10 comes with bigness.

11 COMMISSION MEMBER: I think if you do a

12 study, you'll find that there are three circuits

13 that are doing this affirmed business, and the rest

14 of them don't do it.

15 MS. STRATTON: That's right, Your Honor. 

16 The reason I think it's important to notice that

17 it's the 5th and the 11th Circuit is because those

18 are the two circuits that used to be together.

19 COMMISSION MEMBER: The 3rd Circuit does

20 it and they have one of the largest caseloads in the

21 country. So, you know, I don't know that there's a

22 lot of rhyme or reason about it.
210

1 MS. STRATTON: Well, I would suggest

2 that the 5th and 11th Circuits who used to be

3 together and are now apart may not be getting to

4 take advantage of the economies of scale that comes

5 with a certain amount of bigness.

6 COMMISSION MEMBER: Well, are you

7 suggesting that if the 9th Circuit were divided,

8 this sort of practice that you like now would change

9 for the worst?

10 MS. STRATTON: I am suggesting that it's

11 a possibility because --

12 COMMISSION MEMBER: Well, why would that

13 be?

14 MS. STRATTON: Because it would be

15 smaller circuits with not necessarily the same

16 amount of resources that they would be able to pool

17 to get the advantage that you get when you have big

18 resources that are spread out and used economically.

19 I guess it comes from a bias of mine because I run a

20 big office and I'm able to see in my office that we

21 are able to use economies of scale in being more

22 efficient in the way that we run the office.
211

1 The second point I just wanted to go to,

2 and this goes along with the quality that I see in

3 the 9th Circuit. And I have to tell you, I'm not a

4 particular fan of the 9th Circuit's criminal juris

5 prudence. So, this isn't just because of some kind

6 of personal feeling about the way the cases come out

7 or not come out. One of the things that the 9th

8 Circuit has been able to do, in addition to doing

9 the regular appellate job of deciding a case in

10 controversy before it, is to get itself involved in

11 the administration of justice. 

12 I have been on the 9th Circuit's Capital

13 Case Committee for the last three years. The Chief

14 Judge put me on that, I think, because I was running

15 the capital habeas unit which was a pilot project of

16 this circuit to try to improve the quality of

17 capital habeas representation in this circuit. I

18 don't know of many other circuits who have taken

19 such an interest in developing innovative ways --

20 COMMISSION MEMBER: You're handling the

21 state capital habeas cases?

22 MS. STRATTON: We're taking 2254 cases. 
212

1 We're representing inmates on death row who are now

2 --

3 COMMISSION MEMBER: What percent of

4 them?

5 MS. STRATTON: Well, there's to 500 on

6 death row now. We have 23. But our project has

7 been in existence about two years. Although the

8 number may sound small in comparison with the number

9 on death row, we actually run the biggest operation

10 in the country with respect to those petitioners.

11 It is because the 9th Circuit took the

12 lead in looking at the problem and trying to figure

13 out a better way to provide quality representation

14 that this project came into existence. I think that

15 it, again, stems from the bigness. They have been

16 able to take advantage of the diversity of the

17 circuit and its just bigness to be able to use its

18 resources very efficiently, and to take the time to

19 involve itself in the administration of justice. 

20 It's something that I hope that we would continue to

21 have.

22 Thank you, Your Honor.
213

1 THE CLERK: The panel at 2:00, please

2 come forward. 

3 CHAIRMAN WHITE: Joanne Garvey, you may

4 proceed.

5 MS. GARVEY: Thank you, Mr. Justice

6 White and Members of the Commission.

7 First, I'd like to convey the apologies

8 of Jerry Shestack, the president of the American Bar

9 Association who can not be here today. He has a

10 schedule conflict and he asked me to appear since

11 I'm a governor of the American Bar Association and

12 also a San Francisco lawyer.

13 The American Bar Association has as one

14 of its primary goals the promotion of improvement in

15 the administration of justice, so it's no mystery or

16 surprise that the ABA has looked at the issue of

17 such things as the restructuring of the federal

18 courts in the circuits a number of times over the

19 last 25 years. The creation of this Commission by

20 Congress really prompted the most recent efforts by

21 the ABA, the formation of a very distinguished panel

22 working group, to review the question of the
214

1 restructuring of the federal circuits. 

2 The working group is composed of Charles

3 Allen Wright, Professor Larry Fox, a prominent

4 Philadelphia lawyer and past chair of the litigation

5 section in the American Bar Association; John Frank

6 whom I think is known to all of you over the years

7 for his many contributions in this area, and

8 President Shestack himself. Based upon the report

9 of the working group --

10 COMMISSION MEMBER: Well, you've got one

11 representative on the Commission itself.

12 MS. GARVEY: Pardon?

13 COMMISSION MEMBER: You've got the

14 immediate past president on the Commission itself.

15 MS. GARVEY: Well, we try to do our

16 political homework. We tried to cover both sides of

17 the bench in this case.

18 CHAIRMAN WHITE: He didn't sign that

19 statement.

20 MS. GARVEY: Yes, Mr. Cooper.

21 COMMISSION MEMBER: May I ask how this

22 working group was constituted? That is, who
215

1 appointed (indiscernible)?

2 MS. GARVEY: The president of the

3 American Bar Association. Okay.

4 Based upon the report of the working

5 group, the American Bar Association Board of

6 Governors adopted a resolution at its April meeting

7 that I'll very briefly summarize. That the

8 Association opposes the restructuring of the 9th

9 Circuit in view of the absence of any compelling

10 empirical evidence that demonstrates that the

11 circuit is suffering from adjudicative or

12 administrative dysfunction. Secondly, at this time,

13 the Association opposes any restructuring of the

14 balance of the circuits but yet, certainly supports

15 and commends the efforts of the courts in their

16 ongoing efforts to adopt and use modern technology

17 and procedural innovations in an attempt to deal

18 with the dispensing of justice.

19 JUDGE RYMER: What are we supposed to

20 draw from that because the circuits obviously differ

21 wildly in their structure?

22 MS. GARVEY: Exactly.
216

1 JUDGE RYMER: So, what the Bar

2 Association is basically saying is "hey, everything

3 is fine no matter how it's structured." What are we

4 supposed to draw from that?

5 MS. GARVEY: Well, I think you can draw

6 two things. One, based upon a review of empirical

7 data exists in terms of the structure of the

8 circuits as a whole and a lot of feedback from the

9 practicing bar, for all their diversities, the

10 circuits seem to be functioning effectively. The

11 problem, I think, that the ABA recognizes is the

12 number of vacancies which, when combined with rising

13 caseload which I think is a natural growth

14 unfortunately with population growth, makes it very

15 difficult to try to address all the issues that have

16 to come before the court.

17 But having looked at that, the circuits

18 as a whole seem to be able to handle their function,

19 and they seem to be working well. And they seem to

20 be reaching out in ways to handle --

21 JUDGE RYMER: Well, is the ABA satisfied

22 with the potential of having a federal court of
217

1 appeals, say, process 80 percent of its cases

2 without oral argument on a judgement order basis?

3 MS. GARVEY: I can't really tell you how

4 much detail the particular task force went into, but

5 I can tell you where we have a problem.

6 JUDGE RYMER: I guess what I'm really

7 trying to do is to ferret out --

8 MS. GARVEY: No, I understand.

9 JUDGE RYMER: -- you know, what it is

10 that makes everything copacetic now.

11 MS. GARVEY: No, we're not saying it's

12 copacetic. But what we're saying is that -- we're

13 saying two things, I think. One, that if you're

14 going to change structures and a restructuring of

15 the circuits -- that has been proposed in all of its

16 various forms with the 9th, at the moment, being the

17 questionable circuit -- there ought to be evidence

18 that it's not working. That somehow or other,

19 justice is being denied to the individual litigants

20 or that there is an inconsistency in the law of the

21 circuit, or something is happening that it is not

22 functioning.
218

1 JUDGE RYMER: See, I guess one of

2 difficulties that I've got is that it seems across

3 the country that people are sort of -- it's easy to

4 say, "well, everything is working fine." But we're

5 supposed to look ahead. If you make assumptions

6 that caseload is going to continue to increase,

7 something has to either give or alternative

8 structures may have to be devised. It seems to me

9 that that's sort of our charge, is what alternative

10 structures might there be that would better serve

11 the administration of justice in the federal

12 appellate system?

13 MS. GARVEY: Yes. Part of the problem

14 that we have is that the structures that are in

15 existence seem to be functioning. Sometimes not

16 well. As we understand it, the 2nd Circuit is

17 having terrible problems right now.

18 JUDGE RYMER: See, but that's what I'm

19 trying to get at.

20 MS. GARVEY: I understand.

21 What I'm simply saying is we would

22 commend you for trying to look at alternative
219

1 structures. The ABA in the past has looked at

2 alternative structures, some of them --

3 COMMISSION MEMBER: Isn't the fact of

4 the matter here that the ABA at this moment, on this

5 subject, has not really looked at anything other

6 than sort of the question of whether you want to

7 divide circuits or not? Isn't that the only thing

8 this document addresses? It doesn't attempt to

9 consider alternatives such as those that have been

10 presented to the Commission in various hearings.

11 MS. GARVEY: No, I think that's correct. 

12 And certainly as part of its ongoing efforts to

13 review and consider the administration of justice,

14 as alternative structures are presented the ABA will

15 certainly take a very hard look at them. But the

16 structures that we have seen presented to date which

17 are a split of the circuit in various configurations

18 do not seem to address the particular problem, and

19 seem to perhaps miss the problem.

20 COMMISSION MEMBER: One other clarifying

21 question, if I may?

22 The House of Delegates has not acted on
220

1 this subject, has it?

2 MS. GARVEY: Oh, yes -- well, it has. I

3 was going to explain that the resolution by the task

4 force -- the report of the task force only went to

5 the Board of Governors because the House has not

6 met. The task force is using as its standard, the

7 policy that was adopted in 1995 by the House. The

8 House's standard is one, you should have enough

9 judges to properly deal with the needs for appellate

10 justice and continue to provide a high level of

11 that. But more importantly, that there should be no

12 restructuring unless there is evidence to

13 demonstrate that the present arrangements are not

14 working. They are dysfunctional.

15 So, that is the policy standard against

16 which we're working. Perhaps that's part of the

17 difficulty, Judge Rymer. In my particular brief, I

18 can only tell you that's the standard against which

19 we work. Now if there are alternative structures

20 presented, I think the Bar would be very happy to

21 look at them and continue to report and enter into a

22 dialogue. But yes, we are following the policy as
221

1 adopted by the House.

2 COMMISSION MEMBER: Ms. Garvey,

3 certainly you can't quarrel with the distinguished

4 members of your working group, but as I read the ABA

5 position, they really studied this or considered it

6 for three or four months. Is that correct?

7 MS. GARVEY: Well, perhaps Mr. Frank who

8 will be following me, another panelist, could

9 address exactly how much time. But I believe that

10 the Commission was appointed about that time. That

11 is correct.

12 COMMISSION MEMBER: Well, the submission

13 says that it was appointed earlier this year and

14 rendered its report in April. 

15 MS. GARVEY: Yes, but --

16 COMMISSION MEMBER: Do you know the

17 extent to which they delved into these problems and

18 delved into the questions Congress has posed to this

19 Commission?

20 MS. GARVEY: They have reviewed the

21 statistics. As I say, perhaps the question would be

22 better directed at Mr. Frank who is a task force
222

1 member. He could give you chapter and verse.

2 But the American Bar Association is not

3 exactly a virgin in this area and has been studying

4 these issues for many, many years, and you know,

5 comes up with their reports.

6 COMMISSION MEMBER: I don't mean to be

7 critical of the American Bar Association.

8 MS. GARVEY: No, I understand.

9 COMMISSION MEMBER: God forbid I run

10 afoul of them.

11 My question is, if you have this

12 statement of principles from the House of Delegates,

13 what does the working group add by re-annunciating

14 those principles?

15 MS. GARVEY: Well, what the working

16 group did was to review the evidence and the best

17 you can do is look at statistics and clearly, you

18 know, talk to people and try to get a sense of how

19 things are working. In fact, just sitting in the

20 hearings this morning was very eye opening and, you

21 know, quite interesting.

22 Based on that, and you know, you can
223

1 look at the statistics, for example, and see what

2 the level of the caseload is, how long to

3 disposition, how cases are handled, how many cases

4 go up and so on. So, based on that, they came to

5 the conclusions but the standard is a difficult one. 

6 There has to be evidence of a need for change.

7 CHAIRMAN WHITE: All right, thank you.

8 COMMISSION MEMBER: Thank you.

9 MS. GARVEY: Thank you.

10 MR. KAWACHIKA: Justice White, Members

11 of the Commission, good afternoon.

12 CHAIRMAN WHITE: Go to it.

13 MR. KAWACHIKA: My name is James

14 Kawachika and I am the president of the Hawaii State

15 Bar Association.

16 You heard earlier today from Chief Judge

17 Alan Kay for the District of Hawaii in representing

18 the united opposition of Hawaii's district court

19 judges to a split of the 9th Circuit Court of

20 Appeals. The Hawaii State Bar Association joins in

21 that opposition. For the past eight years, the Bar

22 Association has consistently and unanimously joined
224

1 with other bar associations and judges in opposing

2 legislation to divide the 9th Circuit, and we do so

3 again today.

4 Now, having sat through as many as six

5 hearings in as many states, I am sure that you have

6 heard all of the possible reasons that there may be

7 against a split and I hope, therefore, not to

8 belabor them. But let me be brief in making three

9 points from Hawaii's perspective.

10 CHAIRMAN WHITE: But we've also heard

11 some reasons for the contrary.

12 MR. KAWACHIKA: I understand.

13 CHAIRMAN WHITE: All right.

14 MR. KAWACHIKA: And I appreciate that.

15 First, the 9th Circuit has developed in

16 our uniform and consistent body of law --

17 JUDGE RYMER: What difference, as a

18 practical matter, would it make in the view of the

19 Hawaii Bar Association if, for example, the circuit

20 were configured with Arizona, California, Nevada and

21 Hawaii? What difference would it make in your life?

22 MR. KAWACHIKA: Well, my third point
225

1 would have been that if it is the inclination and

2 recommendation of this Commission to split the 9th

3 Circuit that we would respectfully ask that Hawaii

4 be aligned with the Pacific Northwest states. While

5 we have an affinity --

6 JUDGE RYMER: Well, what difference

7 would that make in your life then?

8 MR. KAWACHIKA: I think we would have --

9 I would think that we would have a better shot at

10 getting an active sitting circuit court judge as

11 opposed to being dominated by California as has been

12 the case in the past.

13 JUDGE RYMER: So, you're interested in

14 having a judge on the court as the primary reason

15 for the circuit not to be split?

16 MR. KAWACHIKA: In addition to the fact

17 that we would probably have greater consideration of

18 Hawaii's needs before the court in a smaller

19 circuit.

20 COMMISSION MEMBER: Well, wouldn't that

21 argue for dividing the circuit from your standpoint?

22 MR. KAWACHIKA: I'm sorry?
226

1 COMMISSION MEMBER: Isn't that an

2 argument from your standpoint for dividing the

3 circuit?

4 MR. KAWACHIKA: No, it's not because I

5 think on balance, we feel that there's been a

6 consistent body of law developed that our lawyers

7 are familiar with, have studied and relied upon. 

8 For example, one of my points today and

9 as we've made in our submittals to you, Hawaii sits

10 at the crossroads of the Pacific in terms of trade

11 and commerce. As such, we receive and send ships to

12 ports in Alaska, Washington, Oregon and California. 

13 A division of the current circuit would raise the

14 possibility of different rules of law applying to a

15 maritime case involving sea voyage between Seattle

16 and Hawaii than one which would apply on a voyage

17 between, say, Oakland or Los Angeles and Hawaii. 

18 Indeed, a split of the circuit may cause the

19 application of a different maritime law depending

20 upon whether the lawsuit was, in fact, filed in

21 Hawaii or in the state of another circuit. 

22 For that and other reasons, getting back
227

1 to the consistency of the body of law that our

2 lawyers are familiar with, our state courts also

3 look for guidance to the 9th Circuit. Our state

4 procedural laws are virtually identical to the

5 Federal Rules of Civil Procedure. To the extent

6 that the Hawaii Supreme Court has not ruled on a

7 particular procedural law, our state courts have

8 looked consistently first and foremost to Hawaii's

9 federal counterpart of the 9th Circuit for guidance

10 in interpreting that law. Our lawyers therefore, by

11 necessity, have to become intimate with the 9th

12 Circuit decisions. And so a split may do away with

13 that established body of law and create in its

14 place, perhaps inconsistent and differing

15 interpretations.

16 So, for those reasons, we would

17 respectfully ask that 9th Circuit not be split. We

18 thank you for your time and consideration of our

19 views.

20 CHAIRMAN WHITE: Thank you, sir.

21 Miriam Krinsky of Los Angeles County Bar

22 Association.
228

1 MS. KRINSKY: Thank you, Justice White,

2 Members of the Commission. My name is Miriam

3 Krinsky. I am appearing today, and it's my pleasure

4 to appear today, on behalf of the Los Angeles County

5 Bar Association, and to join to the chorus that is

6 building of both bar associations and judges who

7 oppose the notion of either splitting this circuit

8 or dramatically restructuring the courts of appeal.

9 The Los Angeles County Bar Association

10 with its over 23,000 members -- we have even more

11 members than there are judges in the 9th Circuit --

12 resoundingly oppose the notion that the 9th Circuit

13 should be split. While I can not speak today on

14 behalf of all of our members, I do represent the

15 unanimous view of our ad hoc committee that was

16 asked to study this issue, our executive committee,

17 and our board of trustees. We seek to convey to you

18 today the message that the users of the system, at

19 least as they stand in the largest local bar

20 association in the country, do not believe that this

21 system is broken and do not believe that the

22 disruption and turmoil that would be occasioned by
229

1 splitting the 9th Circuit is appropriate.

2 We accept as a premise, the starting

3 point espoused by the Hruska Commission over 25

4 years ago that there need be a compelling reason

5 before a circuit is split. We echo the sentiments

6 of Chief Judge Hug that the burden should be on the

7 proponents of this kind of dramatic change before

8 change should be brought about.

9 COMMISSION MEMBER: Do you think, Ms.

10 Krinsky, that that burden has been met at least in

11 part by the commonly accepted prediction that we'll

12 have 35 or 40 circuits in 20 years?

13 MS. KRINSKY: Well, I believe that, in

14 fact, the predictions of what this system will look

15 like in the year 2020 counsels strongly against the

16 notion that a circuit should be split, or that we

17 should engage in some type of temporary solution for

18 whatever may be the perceived problems, we don't

19 concede that they're legitimate problems at the 9th

20 Circuit.

21 JUDGE BROWNING: Well, given the impact

22 of growth on the efficiency of a circuit, if those
230

1 figures are correct, how would you feel about a one,

2 unified national court of appeals operating and

3 sitting in divisions as many intermediate state

4 appellate courts do?

5 MS. KRINSKY: Well, I think in many

6 ways, the devil is in the details and what one means

7 by that. To the extent what we mean is a national

8 court that has within it divisions that operate very

9 much like the courts of appeal, the circuit courts

10 today. I'm not sure that we've really changed the

11 substance and perhaps we've simply --

12 JUDGE BROWNING: Well, they operate more

13 in terms of the effect of panels within a circuit. 

14 In other words, they would be bound by other

15 divisions' authority, be it en bank resolution

16 procedures, something like that. Given the growth

17 that I think this Commission is charged with looking

18 at, how do you feel about that prospect?

19 MS. KRINSKY: Well, Judge Browning, I

20 guess I have two concerns with that. The first

21 would be, I do believe that there's value in a

22 process where there are circuit courts of appeal
231

1 within which the law can percolate and develop. I

2 think there's much to be said for the current system

3 that allows differing courts of appeal around the

4 country to examine the same issue of law and then

5 gives our Supreme Court the benefit of that wisdom

6 and perhaps even years of thinking about an issue

7 and having an issue percolate in the courts of

8 appeal.

9 PROFESSOR MEADOR: Let me ask you this. 

10 Given the growth that people talk about, it's not

11 hard to imagine that the 9th Circuit Court of

12 Appeals could have 30 or 40 judges in another 10,

13 15, 20 years or even more. Assuming that came to

14 pass, what would you do about it, nothing? Just let

15 it go on and on, all the number of judges they need

16 with no change at all?

17 MS. KRINSKY: I think, Professor Meador,

18 those numbers would continue to challenge a court

19 such as the 9th to develop innovations and

20 procedures to maximize the use of technology, to

21 perhaps even change some of the ways in which it

22 goes about doing business in a way that it can meet
232

1 that challenge.

2 The same question might well have been

3 posed 10 or 20 years ago when the 9th Circuit was

4 perhaps half the size it is today. One might have

5 asked those involved in the process at the time,

6 "how could you conceivably deal with the 28 judge

7 active court of appeals?" Well, I think the answer

8 you've heard from the users of the system and almost

9 all of the judges in the system today is that it has

10 dealt with that challenge. I think it can continue

11 to deal with that challenge in the coming years.

12 You asked this morning, Professor

13 Meador, when we were all much younger, "what is the

14 magic number and how big is too big?" And I don't

15 believe there is a magic number. I think that

16 answer is a quantitative one, how big is too big,

17 not a qualitative one. A circuit is too big when

18 based on the technologies and the innovations and

19 the attitudes that exist at the time, it can no

20 longer operate effectively.

21 JUDGE RYMER: What is the definition of

22 "operating effectively"?
233

1 MS. KRINSKY: Well, and I think this

2 gets back, Judge Rymer, to your question of earlier

3 today, "what is the yardstick that we use?" I think

4 the yardstick is not how quickly does business get

5 done? The speed with which justice is dispensed

6 should be the last thing we look at. The fact that

7 this court of appeals has rejected things that might

8 speed up the process, summary dispositions, having

9 files do a tag team approach from chambers to

10 chambers is commendable. 

11 Speed is not the yardstick. Nor should

12 the yardstick be "how friendly are the judges on a

13 social basis?", going back to Professor Meador's

14 point of this morning. Collegiality may mean a lot

15 of things, but I think that what we look for is a

16 court that can operate in a thorough and reasoned

17 fashion. I think what we look for then is a court

18 that's been able to dispense justice in a way that's

19 effective, in a way that does not have an

20 intolerable amount of inconsistencies --

21 JUDGE RYMER: But it's coming back on

22 yourself. I mean, we all want an effective system,
234

1 but how do you know when it is? Just because you

2 see it, recognize it?

3 MS. KRINSKY: It may be part of we know

4 it when we see it. I think it's more part of we

5 know it's not when we see it. If there's an outcry

6 from the users of the system, we perhaps know

7 something is wrong. If opinions and decisions in

8 cases are languishing as a run-of-the-mill, every

9 day occurrence, we know something is wrong. If a

10 court is issuing opinions that reflect not a well

11 reasoned process and judge making, but instead

12 reflect rash judgements and that's happening on an

13 every day occurrence, we know the system is broken.

14 JUDGE MERRITT: Along that line, can I

15 ask you this? Do you see a lot of difference in the

16 quality of the appellate process at the 9th Circuit

17 and at the state appellate level, state Supreme

18 Court, state court of appeals? Is there a

19 significant difference in quality there?

20 MS. KRINSKY: Well, I'm afraid, Judge

21 Merritt, I'm uniquely unqualified to answer that,

22 and that my practice is exclusively in the Federal
235

1 Court of Appeal. 

2 JUDGE MERRITT: You practice only in the

3 9th Circuit?

4 MS. KRINSKY: I practice exclusively in

5 the 9th Circuit.

6 JUDGE MERRITT: Well, the consensus you

7 represent, 23,000 lawyers, and surely there is some

8 discussion among lawyers generally about the

9 difference, if any, in quality at the trial court

10 level and at the appellate level in the federal

11 courts.

12 MS. KRINSKY: I think there's certainly

13 a view that the quality of lawyering may well be

14 different as between the two systems. And I don't

15 say that simply because I practice in the federal

16 court. I don't know that I've heard an outcry that

17 the quality of judging is markedly different in the

18 federal court of appeal versus the 9th Circuit or

19 the federal courts.

20 COMMISSION MEMBER: Well, what about the

21 trial courts?

22 MS. KRINSKY: Again, it's hard for me to
236

1 answer that and it's not something that we consider

2 the quality of trial court judging.

3 COMMISSION MEMBER: It goes to the

4 question of jurisdiction. We've got a lot of

5 jurisdiction recently that has come into the federal

6 courts. There's a question about whether there's

7 really that much difference in the quality of

8 decision making as between the two systems.

9 MS. KRINSKY: Well, and perhaps where

10 we're left is with simply, you know, the premise of

11 a federal system which is one that seeks to apply

12 some reasonably uniform interpretation of federal

13 law. Certainly, that's an important objective for

14 us continually to bear in mind.

15 I would like to go, if I may, and

16 address one of the notions that has been raised both

17 in the written testimony and during the hearing

18 today, which is the question of regional divisions

19 within the 9th Circuit. We agree with the

20 proponents of that notion that if it's a choice

21 between splitting the circuit or regional divisions,

22 we would obviously favor the latter. But we don't
237

1 think that we are yet at the point where we have to

2 engage in political gamesmanships. 

3 I'm not sure what problem that would

4 address. It certainly wouldn't address concerns

5 about the volume of opinions, the speed of opinions,

6 or even intra-circuit splits. At most, it addresses

7 the notion of some type of regional perspective. 

8 We're not sure that we embrace the idea that a

9 regional perspective is what a federal court of

10 appeals should strive for.

11 JUDGE RYMER: Well, the divisional

12 concept doesn't have to be purely geographic. It

13 could float but you would have the same group of

14 people sitting together all the time, all growing in

15 the same direction.

16 MS. KRINSKY: Well, that assumes that a

17 static group is always growing in the same

18 direction. I've heard perspectives of former state

19 court judges who sit on the 9th Circuit who have

20 suggested that when there is a static group, if

21 anything, positions may tend to harden and it may

22 not lead to an improvement.
238

1 So, in conclusion, we would urge this

2 body not to accept any easy solutions that might be

3 thrown out that don't remedy any problem, and would

4 urge this body to maintain the current system.

5 Thank you.

6 CHAIRMAN WHITE: Thank you.

7 MS. RAVEL: Good afternoon.

8 CHAIRMAN WHITE: Yes, you may proceed.

9 MS. RAVEL: Thank you very much.

10 I'm Ann Ravel. I'm vice president and

11 also chair of the Committee of Legislation and

12 Courts of the Board of Governors of the State Bar of

13 California. The State Bar of California represents

14 over 150,000 lawyers who are practicing in the

15 state. The State Bar has consistently taken a stand

16 opposing the previous proposals for the

17 restructuring of the 9th Circuit as we have not seen

18 -- and this is to echo the other bars that have

19 spoken -- the compelling reason to do so. We also

20 believe that the creation of new circuits should be

21 presumptively dis-favored.

22 In the case of the 9th Circuit, the
239

1 State Bar position is that its size alone, at least

2 thus far, has not been a detriment, but in fact, has

3 been a benefit due to the consistency of legal

4 opinions on the West Coast.

5 CHAIRMAN WHITE: Well, has the State Bar

6 looked into the future and decided when there would

7 have to be something done, if anything?

8 MS. RAVEL: No, sir, we have not looked

9 into the future. In fact, this position does not

10 oppose any changes in the future. It is the past

11 changes that we've opposed. Just to say if there is

12 a demonstrable reason why there's dysfunction in the

13 circuits, at that time we believe that it would be

14 appropriate to make a change.

15 COMMISSION MEMBER: There is a

16 difference between the circuit and the court of

17 appeals. Are you saying that the bar has opposed

18 the division of the circuit? Has the bar

19 specifically addressed the problems of the court of

20 appeals in the 9th Circuit?

21 MS. RAVEL: The 9th Circuit court of

22 appeals, yes. We have opposed the divisions that
240

1 have been proposed in the past, such as the

2 splitting of the circuit in California.

3 COMMISSION MEMBER: Could I ask you the

4 question I asked the last person? From the point of

5 view of California lawyers, is there thought to be a

6 big difference in the quality of justice that you

7 get in the appellate system of California and in the

8 federal appellate system, or in the trial courts of

9 the two systems?

10 MS. RAVEL: Right. I too, as with the

11 previous speaker, am probably uniquely unqualified

12 as a practitioner to respond to that question. But

13 from what I know from other lawyers, there's not

14 perceived to be a difference. In fact, the 9th

15 Circuit and also the districts are considered to be

16 of very high quality in California.

17 COMMISSION MEMBER: I mean, if you take

18 an ordinary bread and butter case, you'd just as

19 soon have it in the state appellate court as in the

20 federal appellate court? A reversed case from your

21 point of view --

22 MS. RAVEL: Right.
241

1 COMMISSION MEMBER: -- is going to be as

2 well decided in terms of quality --

3 MS. RAVEL: In the state court?

4 COMMISSION MEMBER: -- as the federal

5 court?

6 MS. RAVEL: As in the federal court?

7 From my point of view, I think that

8 they're probably equally well decided.

9 Yes?

10 CHAIRMAN WHITE: How about the criminal

11 system?

12 MS. RAVEL: That is even further from my

13 practice than --

14 CHAIRMAN WHITE: Even further, all

15 right.

16 MS. RAVEL: -- opining about the

17 previous question. I know you've had some testimony

18 earlier about that and I couldn't really venture an

19 opinion on that subject.

20 Let me just say though for myself, I am

21 the representative of the Board of Governors from

22 the Silicon Valley. I don't know if you've had any
242

1 speakers from the San Jose area, but we do believe

2 that in the area of business in high tech, that it

3 is appropriate to have uniform law throughout the

4 state of California and the West Coast with regard

5 to those issues. It is also a concern of the Board

6 of Governors, and I believe it has been stated by

7 previous speakers about forum shopping. We believe

8 that splitting the circuits in this way will

9 encourage that activity. 

10 So, in conclusion, we oppose splitting,

11 in particular, the circuit in California but we urge

12 you to look carefully at any proposals.

13 CHAIRMAN WHITE: Thank you.

14 MS. RAVEL: Thank you.

15 CHAIRMAN WHITE: Thank you very much.

16 Mr. Federal Bar Association, Robert

17 Mueller.

18 MR. MUELLER: Well, that's a compliment

19 (indiscernible) in California. If I take it back to

20 my colleagues on the Executive Committee, they may

21 dispute that.

22 COMMISSION MEMBER: Mr. Mueller, you're
243

1 not from California. You can speak freely to the

2 question of whether federal or state judges are

3 better out here.

4 MR. MUELLER: The views that I've heard

5 expressed by our membership and our leadership, Your

6 Honor, is that the state court system works very

7 well and they're happy with the state court

8 representation. Federal court litigation belongs in

9 federal court. State court litigation does not

10 belong in federal court. Indeed, that's one of the

11 things I'll mention at more length in just a few

12 minutes.

13 One of the remedies, I think, is -- two

14 remedies, actually, to your asking for looking into

15 the future. It requires really no change at all. 

16 It really requires simply doing business at hand. 

17 One of those is to fill the judicial vacancies. 

18 It's irrational, absolutely irrational that the

19 Congress should decide by statute that 28 judgeships

20 are necessary to do the work of the 9th Circuit. 

21 Then to let that circuit languish and let the

22 caseload of that circuit be borne by two-thirds of
244

1 that number for far too long, and then for some

2 members of that body to lead the charge against the

3 9th Circuit by criticizing it for lack of

4 productivity and for backlog -- those things simply

5 don't go together. Fill the judicial vacancies. 

6 Let the judges do the work the Congress decided were

7 necessary to do the work, and then measure such

8 things as productivity and backlog.

9 I want to establish at the outset of the

10 few minutes of my remarks where the Federal Bar

11 Association is coming from in the presentation, my

12 written presentation and the oral remarks. We want

13 courts to work. Our 15,000 members nationwide

14 practice -- a large majority of them practice in

15 federal courts, many of them exclusively in federal

16 courts. Our professional responsibility, our

17 professional livelihood is getting our clients'

18 cases resolved. We want to do that. The courts

19 need to work. 

20 We're not interested in pursuing. We're

21 not motivated by pursuits of judicial philosophy. 

22 We're not motivated by pursuits of political
245

1 philosophies. We have no dogs in those hunts

2 whatsoever. I respectfully suggest -- sincerely,

3 respectfully suggest to the Commission, this

4 Commission has no dogs in that hunt. The

5 Commission's responsibility under the charge from

6 Congress is to make the courts work, to examine

7 where the courts are not working if, indeed, they're

8 not, and to offer some suggestions for how they

9 might work, looking at today and into the future.

10 COMMISSION MEMBER: Let me ask you a

11 question.

12 MR. MUELLER: Judge (indiscernible),

13 yes, sir.

14 COMMISSION MEMBER: We have a problem of

15 foreseeability here and maybe you've got some view

16 about it.

17 In 1960, the federal appellate courts

18 handled about 4,000 or so cases, 4,500. Now, what

19 is it, about 50,000, or 47,000. So, over the period

20 of time, we've had an increase of, what's that,

21 tenfold in the number of cases and we've had an

22 increase in the number of judges of about threefold,
246

1 I think it is. 

2 Do you think we can anticipate that the

3 future holds what the past has held, or what do you

4 think? Are we looking at a comparable period of

5 time here of 35 years down the road of 120,000 or so

6 appeals?

7 MR. MUELLER: Your Honor, I think the

8 answer is not necessarily. I say not necessarily

9 because I believe it's within the power of certain

10 sources of power in this country to avoid that kind

11 of inherent multiplication that we've experienced in

12 the past. 

13 We need to let some things play out. We

14 need to let play out, for instance, a longer

15 experience with various methods of alternative

16 dispute resolution. We need to let play out what is

17 going to be the impact from the enactment of recent

18 litigation such as that affecting prison litigation. 

19 We need to let play out what's going to be at least

20 the immediate evolution of technological processes. 

21 We've had incredible changes in the way courts do

22 work as with every (indiscernible) society,
247

1 businesses as well as a result solely of

2 technological evolution. What has been suggested to

3 us is that we're just on the doorstep of that.

4 There are some other things that can be

5 done besides filling judicial vacancies that don't

6 require exactly earth shattering steps. One of them

7 is for the Congress to implement for itself a policy

8 that the Federal Bar Association adopted,

9 recommended to Congress several years ago. That is

10 to stop the unthinking proliferation of new federal

11 criminal statutes and causes of action. See, I'm

12 thinking, not in the context that there should be no

13 further such statutes, but rather before Congress

14 passes one more statute that has an impact like the

15 kinds of things recently enacted by Congress on the

16 federal courts, it should require of itself a

17 judicial impact statement. They should ask of

18 itself before the Congressmen in both houses raise

19 their hands and say "aye" and impose these kinds of

20 burdens on courts and on the litigations, what's

21 going to be the impact on the courts? And what can

22 we do as Congress before we impose that impact to
248

1 help the courts meet it?

2 The Congress instead has gone headlong

3 into enacting new criminal statutes, civil causes of

4 action, completely without regard to the impact on

5 federal courts and --

6 CHAIRMAN WHITE: There's only been 202

7 of them.

8 MR. MUELLER: Yes, Your Honor, that's

9 right.

10 COMMISSION MEMBER: But Mr. Mueller, I

11 don't read our charter as Congress asking us how

12 they should conduct their business.

13 MR. MUELLER: That's correct, Your

14 Honor, and I don't mean to suggest the Commission's

15 report should tell the Congress how it should do

16 business. But I think it would be appropriate for

17 the Commission to not buy off automatically on what

18 might be the inherent message in Congress, the

19 legislation that created the Commission. That is

20 that there are problems that only the courts can

21 solve and it's the court's responsibility to do it

22 or the Congress do it by changing such as the
249

1 structure.

2 COMMISSION MEMBER: If in the state

3 courts, as people have said, the quality is just

4 about the same as the federal courts, I guess we

5 could suggest that every time a new federal statute

6 is created, it's not necessary to create federal

7 court jurisdiction. I mean, you can have concurrent

8 as in many statutes, concurrent stated jurisdiction

9 with some preference for the action to be resolved

10 in the state courts as it has been resolved before

11 you create the statute. That's a possibility, isn't

12 it?

13 MR. MUELLER: I think that's a

14 possibility. That's an interesting one. That's one

15 that could be litigated in front of the federal

16 judge one day. That is whether this cause of

17 action under some constitutional argument and on the

18 concepts of federalism shouldn't be in this court at

19 all.

20 COMMISSION MEMBER: Kind of an

21 extension, as one of the witnesses testified, of the

22 doctrine of abstention. If you have parallel state
250

1 and federal actions, we have a doctrine to take care

2 of that, several doctrines. But where you don't

3 have a parallel state action, unless it's a one

4 mari-kind, you don't have any way of getting it in

5 the state court.

6 MR. MUELLER: Yes.

7 The kinds of things I'm addressing, Your

8 Honor -- and there's a full range of them but just

9 to illustrate, I don't mean to address situations

10 that Congress is filling a void; creating a cause of

11 action or a criminal statute in an area that I

12 believe needs addressing that's not otherwise being

13 addressed. I'm talking about such circumstances as

14 creating a federal crime of murder with a handgun,

15 with a weapon. There are perfectly adequate state

16 statutes that address that kind of context in every

17 state of the Union. It's not necessary for the

18 federal courts to be trying some of those kinds of

19 criminal actions and causes of actions. 

20 I wanted to briefly --

21 CHAIRMAN WHITE: The states don't have a

22 whole lot of control over interstate commerce.
251

1 MR. MUELLER: Yes, that's correct, Your

2 Honor.

3 CHAIRMAN WHITE: And the guns come

4 mostly from somewhere else.

5 MR. MUELLER: Well, and that would

6 (indiscernible) the crime that says possessing an

7 unregistered weapon that came through interstate

8 commerce might be something that a federal court and

9 Congress might be interested in addressing. But

10 does it really make a difference t the person who is

11 dead? Or does it really make a difference to the

12 criminal defendant or the families of either one

13 that a murder victim was shot and killed by a gun

14 that came through interstate commerce? There are

15 murder statutes in every state in this Union that

16 can handle that situation and punish it much more

17 severely than the fact that the gun came through

18 interstate commerce.

19 CHAIRMAN WHITE: Well, I have my doubts

20 if the feds are any better at it than the states in

21 connection with certain of these statutes. How do

22 you like it? Do the feds do a better job beating up
252

1 wives? I doubt it.

2 MR. MUELLER: I doubt it.

3 CHAIRMAN WHITE: All right.

4 MR. MUELLER: I want to very briefly

5 address -- 

6 Time is up, Your Honor? Thank you very

7 much for the opportunity.

8 CLERK: (indiscernible) Booker T. Evans,

9 John Frank, Rodney Lewis, and Alan Rabkin.

10 MR. EVANS: Your Honor?

11 CHAIRMAN WHITE: Carry on, sir.

12 MR. EVANS: My name is Booker T. Evans. 

13 I am just a practitioner who happens to practice in

14 both Nevada and Arizona. I probably have a well

15 divided practice, probably 60 percent in Arizona and

16 another 40 percent in southern Nevada. I am opposed

17 to the splits that I have read. Of course, I've

18 operated as a lawyer representative and on many

19 organizations in both jurisdictions. I can say that

20 the lawyers that I work with are equally concerned

21 about splitting the circuit. 

22 In particular, in the situation that I
253

1 work in presently, the one proposal that would

2 basically isolate Arizona geographically from the

3 Northwestern states and create it as part of the

4 12th Circuit is something that I am very much

5 opposed to, and the people that I've talked with in

6 preparing for this hearing are very much opposed to

7 it.

8 The 9th Circuit has seemed to me, in the

9 15, 20 years I've practiced in this area, to make

10 adjustments, to make adjustments in areas necessary

11 to get rid of the cases, to handle the cases, to

12 hear the cases. I've personally not had the

13 problems. Of course, there are particular

14 instances, and anyone can point to them, whereby

15 certain cases might languish in a court and that

16 will happen in a state court and that will happen in

17 a federal court. But I think that's dependent on

18 the particular case. 

19 On an overall basis, the 9th Circuit

20 certainly holds its own. What I do like and my

21 clients seem to like and understand is that they are

22 likely to be heard in this circuit on appeal.
254

1 COMMISSION MEMBER: May I ask you a

2 question, please?

3 I assume you'd like Arizona to stay with

4 California in the circuit. What difference would it

5 make to your practice, your work, if a circuit were

6 created consisting of California, Nevada and

7 Arizona? Everything you say good about the 9th

8 Circuit, would it not continue? What would be the

9 adverse effect of that change on your work?

10 MR. EVANS: I would hope it would. 

11 However, what I like about the circuit is that when

12 you appear at the circuit, you do find judges that

13 are from the Northwest who do give a different view. 

14 It gives you a broader perspective. It gives you 

15 more, I believe, opinions to deal with -- more

16 things, more questions about what you're doing. I

17 think the law that evolves in this circuit tends to

18 have to consider the entirety of the circuit, the

19 whole vastness of the circuit and its diversity,

20 both in, I think, a race in geography.

21 As I was saying, I think the oral

22 argument issue in terms of the clients that are
255

1 represented, every client wants to be heard. 

2 Clients believe that they will get an opportunity to

3 be heard before the 9th Circuit Court of Appeals. 

4 It's well known, especially in the business

5 community, that the 9th Circuit does hear many more

6 oral arguments than perhaps other circuits across

7 the country. 

8 I think the politicizing of this issue

9 is what bothers me most. I believe that, as I said

10 in my written presentation, that I am here by virtue

11 of the courage -- I was born in Hattiesburg,

12 Mississippi. I am here by virtue of the courage

13 from the federal courts to make decisions that

14 didn't necessarily comport with the communities that

15 I lived in. Put to a vote, I might still be going

16 to a segregated school in Mississippi. Put to a

17 vote, I might still not be able to ride a bus and do

18 other things around this community. So, I honestly

19 believe that the whole quality of justice and the

20 whole perspective of judges being free and

21 independent to make decisions are very important to

22 all forms of growth in this community. I mean, in
256

1 our community and I call our community this circuit.

2 COMMISSION MEMBER: Do you find in your

3 practice that prejudice against ethnic and racial

4 minorities of which you speak about the past,

5 continues to exist in state courts more than in

6 federal courts?

7 MR. EVANS: An honest answer is yes,

8 sir. I believe that. I believe that sincerely. I

9 believe that the comfort level of the racial

10 minority is greater if you can go to a federal court

11 with an issue that has (indiscernible) and get that

12 issue resolved.

13 One of the great concerns that I have

14 about boxing Arizona into a circuit, into itself and

15 isolating it, is the fact that you lose some of

16 that. You lose the ability, you lose the input from

17 judges from the Northwest. You lose the input from

18 people from California, and I think that's been very

19 important to the development and evolution of the

20 law throughout the circuit.

21 CHAIRMAN WHITE: You're all right. 

22 You've got plenty of time.
257

1 MR. EVANS: Okay, I didn't want to rush.

2 CHAIRMAN WHITE: No, okay.

3 MR. EVANS: I think that, as I've said,

4 the uniqueness of the circuit is, in part, in its

5 geography. I think when you're hearing timber cases

6 or when you're hearing admiralty cases, I think

7 those kinds of things have to consider the entire

8 coast line on the West Coast.

9 JUDGE RYMER: But what is the nature of

10 your practice?

11 MR. EVANS: I'm a commercial lawyer. I

12 do, actually, some white collar crime defense work. 

13 So, I've appeared criminally and civilly before the

14 courts.

15 JUDGE RYMER: In either area, are you

16 regarded as paying particular importance that the

17 law be the same in Washington or Alaska as it is in

18 Arizona?

19 MR. EVANS: I would think in the

20 commercial areas, yes. I mean, Arizona is a state

21 that's also developing high tech issues, high tech

22 employment issues, all kinds --
258

1 JUDGE RYMER: I can understand. Are you

2 including intellectual property in that category? I

3 mean, I can understand why it's important for

4 intellectual property, but in general commercial law

5 isn't it primarily state law?

6 MR. EVANS: Primarily, but I would think

7 that --

8 JUDGE RYMER: So, it doesn't really

9 matter too much.

10 MR. EVANS: Yes. The IP for our firm, I

11 think, is very important. For the firm that I work

12 with it would be very important because we work very

13 closely with California companies. Many of the

14 companies are housed in California and other places

15 across this district. Maybe even as far away as

16 Seattle, Washington, from time to time when we do

17 representation for those companies on issues that

18 they have within our district, within Arizona, and

19 within other parts of the 9th Circuit. Yes, ma'am.

20 All right, I'll pass and allow another

21 speaker.

22 CHAIRMAN WHITE: Thank you, sir.
259

1 Mr. Frank?

2 MR. FRANK: Mr. Justice and Members of

3 the Commission, my name is John P. Frank. I'm with

4 the law firm of Lewis and Rocke in Phoenix, Arizona.

5 I have been active in probably pretty

6 much frequently, along with Professor Meador, all

7 matters relating to federal jurisdiction and

8 procedure in the United States as a matter of

9 professional interest for the last 40 years. I have

10 been a principal opponent of circuit division since

11 this project originally arose.

12 My background includes that of being a

13 professional historian. I'm the author of a dozen

14 books and numerous articles, and I work in the field

15 particularly of American legal history. I had

16 thought that today I would like to use my time to

17 talk about the history of the matter which is before

18 you. You're getting plenty of arguments on the pros

19 and cons. I would like to talk to you about how we

20 get here at all.

21 A veneer has been cast over this whole

22 enterprise of inquiry as though it had something to
260

1 do with judicial administration, collegiality, case

2 disposition and so on, which appear to be the object

3 of objective analysis. The fact is that those

4 matters may be of interest and concern to you as you

5 conduct your deliberations, but they are totally

6 irrelevant as to why this enterprise has been

7 undertaken.

8 COMMISSION MEMBER: May I interrupt and

9 ask my longtime friend, John Frank, a question?

10 MR. FRANK: Yes.

11 COMMISSION MEMBER: Two questions,

12 actually.

13 You said that in your opening statement,

14 the written statement you submitted to the

15 Commission, and I was a little puzzled. You seem to

16 be saying -- I'm not sure you intended this, but you

17 seemed to be saying that considerations of judicial

18 administration, collegiality and so on are

19 irrelevant as though this Commission should not

20 consider those in carrying out its statutory charge. 

21 Do you really mean that? What do you mean by saying

22 they're "irrelevant"?
261

1 MR. FRANK: No. I am saying that I

2 think, as you weigh these factors, that you may be

3 interested in the historical background of how these

4 matters come before you and why they are here.

5 COMMISSION MEMBER: That leads me to our

6 next question. In your history -- you being the

7 kind of historian you are -- you surely know that

8 the question of dividing the 9th Circuit has been

9 debated for some 60 years. We have a history within

10 the judges of the court of appeals discussing it,

11 debating it. You have the Hruska Commission

12 recommendation. Yet, your history seems to start in

13 the late 1980s.

14 MR. FRANK: Yes. I'll tell you about

15 that because this (indiscernible) became active, as

16 a matter of fact, at the time of a conference that I

17 think we were both at Coronado with Maury Rosenberg

18 a number of years ago. At that same time, Judge

19 Schroeder who is here today and the Huffstetlers,

20 whom you must all know, were also present. The four

21 of us had breakfast and we entered into the Treaty

22 of Coronado which was that we would do the best we
262

1 could to resist the division of this circuit. 

2 The consequence is that I've paid close

3 attention to it ever since the Treaty of Coronado

4 and I have a fairly detailed record of all of the

5 events which have occurred in the meantime. I've

6 been involved in every Congressional hearing. There

7 have been a great number of them and it is to that

8 subject to which I would like to direct my remarks.

9 Let me begin with a story from the

10 Medford, Oregon Mail Tribune of July 17, 1988 which

11 notes that the environmental rulings of the circuit

12 "have evoked the wrath of a Senator from Oregon who

13 has publicly attacking the court in its decision."

14 JUDGE RYMER: If one assumed that it

15 was --

16 MR. FRANK: Beg your pardon, Your Honor?

17 JUDGE RYMER: If one were to assume that

18 it is an entirely inappropriate basis for deciding

19 what a proper geographic configuration or alignment

20 is the decisions of the court, whether you like them

21 or whether you don't like them --

22 MR. FRANK: We are at one on that.
263

1 JUDGE RYMER: -- if you assume that that

2 is an inappropriate basis, what bases do you think

3 we should look at in order to make a decision about

4 whether the present geographic alignment or the

5 structure of the courts of appeals are okay or

6 should be fixed?

7 MR. FRANK: My honest belief, and if I

8 may I would like to develop it, is that this is

9 simply an exercise in court pack. I believe that

10 what the Commission ought to do is fold up and go

11 home because under the standards of --

12 JUDGE RYMER: I would love to do that.

13 COMMISSION MEMBER: Are you suggesting

14 the Commission should disobey an act of Congress? 

15 MR. FRANK: I think that the Commission

16 may legitimately be interested in the background of

17 what brought them here. But I want to make clear

18 that I also, in direct response -- so it is not what

19 I want to develop because you're getting that from

20 so many other witnesses -- I think that the line

21 that the American Bar Association is giving you that

22 you don't tinker with circuits unless there is some
264

1 overwhelmingly good reason to do so. There's got to

2 be a lot of evil to be corrected to make an

3 alteration in going concerns.

4 I have been acquainted with all of the

5 testimony before this Commission. I've seen, I

6 think, all of the statements that have been

7 circulated at the various hearings and I do not

8 believe that as yet, you have been shown any

9 overwhelming evidence that tinkering with circuits

10 is going to serve any very useful purpose, whether

11 this or any of the others. (indiscernible) short, I

12 think that the burden of proof which is put by the

13 ABA's standard is not met.

14 Judge Browning?

15 JUDGE BROWNING: Excuse me. I'm sorry.

16 Your statement would seem to indicate

17 that we're to look at this problem at a fixed point

18 in time. What if we look and carry it out into the

19 future as we've, indeed, been urged to do by Cliff

20 Wallace and look ahead, in his words, 30, 50, 60

21 years down the road? You certainly have the

22 foresight to see changes such as have occurred in
265

1 the past 20 or 30 years occurring in one form or

2 another in the future. How should we look at those

3 problems? How should we view our charge in light of

4 those changes?

5 MR. FRANK: Judge Browning, my feeling

6 is that it's mystic. I think some earlier witnesses

7 here have made a point very well. This same

8 question was raised when this circuit grew from 10

9 to 14, or whatever it was, and now we're at 28. The

10 fact is that for me, these are unpredictable

11 matters. We can not avoid the fact that the country

12 is growing at a prodigious rate and that its

13 litigation is growing even more, and that too many

14 laws are being passed increasing federal

15 jurisdiction. 

16 What that course is going to be, I don't

17 know. I don't have enough of a crystal ball to be

18 able to make a sound plan, in my own mind, for 20 or

19 30 years. I think I'm acquainted with all the

20 literature there is, and I don't believe there is a

21 sound plan.

22 JUDGE BROWNING: Well, I want you to
266

1 understand, my question is not directed solely at

2 the 9th Circuit.

3 MR. FRANK: No, of course not.

4 JUDGE BROWNING: It's directed at all

5 the circuits throughout the country and at the

6 concept of whether we're going to have bulkinization

7 as has been predicted by many and feared, or whether

8 we're gong to have one jumbo circuit or a group of

9 jumbo circuits or whatever. But don't you think we

10 have to consider that within the limitations any of

11 us have in seeing into the future?

12 MR. FRANK: Yes, I think that the

13 capacity to predict is pretty weak. I thought that

14 the Federal Judicial Center study with its gigantic

15 extrapolation of a prodigious number of cases,

16 frankly, was foolishness. I don't know what to

17 anticipate. All I can say is I'm glad it's your job

18 instead of mine because I wouldn't know what to do

19 with it.

20 COMMISSION MEMBER: On the circuit

21 you're talking about, it may be that the question

22 really is what harm is it going to do to split the
267

1 9th Circuit? I say that because it may be that what

2 we should do is to tell the Congress, if it turns

3 out to be our opinion, that it will do considerable

4 amount of harm. My reading of the Senate is that

5 they don't think it would do much harm and there's

6 some good politics ideologically behind doing it, so

7 why not do it?

8 Now, our charter may be to tell them

9 that it is harmful and if it is -- you know, my

10 attitude right now is it might not make any

11 difference one way or another, really, over the

12 course of the next 30 years, whether they split or

13 they don't. You obviously think that it will make a

14 difference.

15 MR. FRANK: Yes. Let me say, Judge

16 Merritt, in answer to that, somebody used the phrase

17 earlier which I have been using myself in dialogue

18 on this subject, borrowing of the phrase from

19 Winston Churchill that "democracy is a very poor

20 form of government. Its only virtue is that it's

21 better than all of the others."

22 I can not think of a rearrangement which
268

1 would not create more problems than it's worth. 

2 That's simply how it is. I've looked at every

3 arrangement that has been proposed. The problem of

4 having an elephant in our midst in this shape of

5 California and the fact that it overweighs what else

6 it is put with and that it's rather balanced in

7 terms of numbers. I'm talking about decisional. 

8 Let's stay away from that. This business about a

9 California philosophy which some persons object to

10 is, I think, is pure senophobia.

11 But in terms of simply administration

12 and of getting to the side where courthouses are to

13 be built and where meetings are to be held and all

14 the rest, I think it's a good thing to have the

15 balance that we have. For that purpose, I think it

16 has been profitable to have a good number of states

17 with California.

18 CHAIRMAN WHITE: John, you've just about

19 run out of gas.

20 MR. FRANK: Well, may I say in

21 conclusion, that the statement that I was going to

22 make here was a swell statement.
269

1 CHAIRMAN WHITE: Well, John, we have --

2 MR. FRANK: Had I ever gotten --

3 CHAIRMAN WHITE: -- all of the

4 statements and we will study them very carefully.

5 MR. FRANK: Oh, and I just want you

6 folks to go home.

7 CHAIRMAN WHITE: I've listened to you

8 before.

9 MR. FRANK: And it didn't do you a bit

10 of harm, Your Honor.

11 I will simply skip my entire statement

12 and conclude by saying that the desire to cut more

13 trees and to catch more fish and to limit more

14 Indians is not a good enough reason to blow up the

15 courthouse.

16 Thank you very much.

17 CHAIRMAN WHITE: Good. Good, John.

18 MR. LEWIS: Justice White, Members of

19 the Commission, my name is Rodney B. Lewis and I am

20 the general counsel for the (indiscernible) Indian

21 community. I was the founding chairperson of the

22 Indian Law Section of the State Bar of Arizona and
270

1 currently serve as a lawyer representative from

2 Arizona to the 9th Circuit Judicial Conference.

3 I greatly appreciate being afforded this

4 opportunity to offer my testimony regarding whether

5 the 9th Circuit should be divided into separate

6 circuits and split. In my view, it should not.

7 The state of Arizona is said to be the

8 most Indian of all of the United States insomuch as

9 21 federally recognized Indian tribes are located

10 within its boundaries. Indeed, the ten largest

11 Indian reservations in the United States, five are

12 located in Arizona and approximately 27 percent of

13 the land within Arizona's exterior border boundaries

14 is Indian land. Since Arizona is within the 9th

15 Circuit's jurisdiction, the governmental and

16 individual interest of a concentrated number of

17 Indian communities stand to be directly affected by

18 any structural modification made to the 9th Circuit

19 Court of Appeals.

20 In my experience, the 9th Circuit Court

21 of Appeals has well executed its responsibility for

22 the disposition of matters of federal Indian law. 
271

1 That is, the body of law treating the complex

2 relationship between Indian tribes, the federal

3 government and the states. Arguably, 9th Circuit

4 decisions constitute leading authority among the

5 decisions of all the federal appeals circuit. Thus,

6 the 9th Circuit has contributed significantly to the

7 federal court system's overall capacity to equitably

8 and reasonably adjudicate matters arising from these

9 often strange relationships. To break the circuit

10 into separate forum might well disrupt the ongoing

11 doctrinal legacy of the circuit, an outcome that

12 would prove of great disservice to American Indian

13 tribal governments across the United States.

14 Indian legal interests, being of their

15 nature minority interests, are insured better

16 protection by less provincial, more diverse circuit

17 that approaches cases with a view toward interest on

18 a national or at least a large regional scale rather

19 than a smaller circuit that is more likely to be

20 subject to the influence and persuasion of parochial

21 interest. It is, after all, national law that the

22 federal appeals circuit apply primarily.
272

1 As American Indian tribal governments

2 continue to acquire the sophistication lacking when

3 questions of Indian rights were first presented to

4 United States courts, it is fair to speculate that

5 contests between tribes and our legal adversaries

6 will grow in complexity. Rendering even more

7 critical if justice is to be served, the neutrality

8 of an available forum. Above all considerations, a

9 splitting of a circuit must not be based on

10 political considerations, parochial interests, or

11 interests of the state or region a new circuit is

12 established to serve.

13 Indeed, any modification to the present

14 9th Circuit must be required to be justified on

15 wholly neutral political grounds and should be

16 considered only in terms of whether such a change

17 would support improved efficiency and ultimate

18 effectiveness of the federal court system. If the

19 present 9th Circuit were failing to function because

20 of its size, for example, then splitting the court

21 might be necessary. But all available evidence

22 supports the view that the circuit is doing its job,
273

1 doing it well, and is certain to serve even more

2 efficiently once long standing vacancies on the

3 bench are filled. Consistently in each of my

4 experiences before the 9th Circuit, I found it to be

5 highly efficient and productive. I would urge this

6 panel to recommend against any split.

7 Thank you.

8 CHAIRMAN WHITE: Thank you, sir.

9 Mr. Rabkin?

10 MR. RABKIN: Yes, Mr. Justice White,

11 Members of the Commission, my name is Alan Rabkin. 

12 I'm the general counsel of Sierra West Bank in the

13 Nevada/California region. We're a medium-sized

14 bank, 22 branches -- a small bank, basically, and we

15 pride ourselves on being the first bank here in the

16 West that actually used the Interstate Banking Act

17 to expand across our borders into Nevada, adopt a

18 single charter under a Congressional Act, and we're

19 doing the same thing in our Oregon operations and

20 throughout the West.

21 We relied heavily on the 9th Circuit in

22 the sense that federal law predominates my area, the
274

1 corporate banking area. We are regulated by a

2 single set of rules right now in the federal

3 appellate district we are in. We pride ourselves on

4 being very up-to-date and very well versed with

5 those rules. In fact, we're quite glad that we

6 don't have banking operations in certain other

7 appellate districts because those rules vary.

8 COMMISSION MEMBER: Do I take it you

9 have no sense that even these inconsistencies uneven

10 this in 9th Circuit decisional law in your field?

11 MR. RABKIN: I think generally, the 9th

12 Circuit is pretty constant in their interpretation

13 of banking areas. They treat it very much like

14 other regulated industries. It's slow to change. 

15 It tends to focus on what's best for the public

16 benefit and also what's best for the corporate area. 

17 I think over the years you will see a very slow

18 changing landscape in the banking area. That has

19 allowed us to raise considerable capital at my bank.

20 COMMISSION MEMBER: Well, what I'm

21 asking is, in reading the 9th Circuit opinion in

22 your field, do you have any sense at all on
275

1 unevenness, inconsistency, any problems about

2 predictability and so on?

3 MR. RABKIN: Generally, I don't. I

4 don't.

5 COMMISSION MEMBER: Generally, but

6 sometimes maybe?

7 MR. RABKIN: Sometimes, yes, and even

8 diverse interpretations between state courts. When

9 those issues go up to the federal court on

10 diversity, there are differing interpretations in

11 the banking area but generally, I'd say they're

12 minor. And they're not as significant as the

13 Barnett decision on insurance back East, things of

14 that nature where the matters finally had to be

15 adjudicated by the US Supreme Court. 

16 I don't think you'll see a lot of those

17 banking issues coming out of the 9th Circuit. We

18 tend to be a stable circuit when it comes to

19 banking. I think I could speak with authority to

20 that because I participated in one of the decisions,

21 the Plus Visa versus Valley Bank of Nevada decision

22 that allowed banks to charge a surcharge. We might
276

1 be seen as a leader in that area or the devil

2 incarnate in that area, but generally, that decision

3 spread across the country and now all banks adopt

4 the surcharge. Unless Congress gets into that

5 fight --

6 COMMISSION MEMBER: Do you take appeals

7 to the 9th Circuit of Appeals yourself?

8 MR. RABKIN: I don't. I use outside

9 counsel to do that. However, I have participated in

10 prior years in a POCS.

11 We look to a broad base of operations. 

12 Our loan offices extend from Seattle, Washington all

13 the way down to San Diego, all the way over to

14 Denver, Colorado. However, our operations are

15 primarily centered in the current 9th Circuit. If

16 we were forced to look at different regulatory

17 schemes -- and maybe they would be identical, maybe

18 they wouldn't be -- I think our cost of operating in

19 different schemes or different scenarios would

20 increase. But I can't say for a fact that that

21 would occur, but I can't say it won't occur. That's

22 why representing regulated industries, as hopefully
277

1 my bank is, we really have a concern about the

2 effect and the cost and the complexity upon our

3 operations by fractionalizing the circuit.

4 COMMISSION MEMBER: We have, as you

5 know, in this country some banks with huge

6 geographic scopes: NationsBank, Wicovia who span

7 many states and circuits. Are you aware from any

8 conversations you've had or connections with those

9 people as to whether they have a problem because of

10 having to operate in several different circuits?

11 MR. RABKIN: I could speak to my general

12 information on that. My understanding is that most

13 of the national banks are, in fact, chartered under

14 the national statutes. We have a little bit

15 different problem. 

16 We are a state chartered organization. 

17 We are chartered under the laws of California and we

18 relied heavily upon the Interstate Branching Act to

19 be able to branch legally into other states without

20 charters. The laws that impact Bank of America or 

21 NationsBank are set forth in the United States Code. 

22 The laws that impact us are set forth in the
278

1 California Financial Statutes, the Oregon Financial

2 Statutes, et cetera. Sometimes it takes a very

3 strong appellate district to allow a bank like ours

4 to have an even-handed and common interpretation of

5 those laws because the federal appellate circuit is

6 often called upon to allow an activity of ours in

7 one state into another state. If we don't have a

8 real meaningful, broad based basis for that

9 decision, it really does impede our operations.

10 COMMISSION MEMBER: What percentage of

11 your cases that you monitor or control are federal

12 question cases? Are most of them diversity cases?

13 MR. RABKIN: Most of them are diversity. 

14 Banks in trouble tend to have a lot more federal

15 question type interest in the appellate courts. 

16 However, a good percentage of the banks in trouble

17 scenario wind up in the federal appellate courts

18 because normally, the government is on the other

19 side. It might be the Federal Deposit Insurance

20 Corporation, or the RTC seeking some action against

21 my directors or my officers. There's a lot of

22 shareholder litigation and improper disclosure
279

1 issues. Really, it's a panoply of different issues

2 that wind up in federal court, especially since my

3 entity is a public entity and it's widely traded.

4 COMMISSION MEMBER: I don't quite

5 understand. If you're so heavily dependent on state

6 law, what difference does it make to you whether

7 Oregon is in another circuit or not since the

8 decisions are going to be based on Oregon law?

9 MR. RABKIN: Because I have actually two

10 regulators in every single thing I do. I have a

11 federal regulator, even though I'm not a nationally

12 chartered bank, who regulates me under similar

13 United States Code sections as the national banks

14 are regulated. But then unfortunately, since I'm a

15 state chartered bank, I always have a second state

16 regulator who is actually my primary regulator. 

17 That's why a lot of banks have gotten out of the

18 state charter business because they don't like

19 having two different regulators telling them what to

20 do. But it would be very expensive for my bank to

21 adopt a national charter and to move to that format. 

22 And so, we have always adopted a good working
280

1 relationship on the state level, but we always have

2 our federal issues with our federal regulators,

3 especially the FDIC.

4 So, I think we're in a uniquely

5 regulated industry, but I think railroads, insurance

6 and some of the other regulated industries have a

7 similar concern. I'm certainly not an expert in

8 problems they might face by a collapsing or smaller

9 sized circuit, but I do know that we take great

10 comfort in knowing that in all states of our

11 operation, we have a common federal court

12 interpretation for our operations.

13 We really have no interest here to have

14 a big court, small court, whatever. I think in my

15 prepared statement -- and I won't go through it --

16 we merely want to use the same efficiency that's

17 being held to us by our shareholders as to the

18 court. We don't quite understand from the corporate

19 model where efficiency comes from fractionalizing

20 core systems like this infrastructure. Because if

21 we fractionalize this infrastructure, I think

22 effectively, we create costs and we don't eliminate
281

1 costs. 

2 From a corporate perspective, that's a

3 wrong strategy, at least according to my Wall Street

4 analysts and they would not appreciate my bank

5 fractionalizing my core systems without a good

6 reason. There are good reasons but we have to find

7 them before we move to that. If it's more

8 efficient, if it eliminates obstacles, et cetera --

9 I think those are all good reasons from a corporate

10 model. I hope that before you'll find those in a

11 judicial model, you'll sit down really try to

12 understand what we the corporations who are the

13 constituents of the court have had to deal with the

14 past 10 or 15 years, and how bigness has not

15 necessarily hurt us. In fact, as the Wall Street

16 values have shown, it has actually been widely

17 embraced by the public.

18 Thank you.

19 CHAIRMAN WHITE: Thank you, sir.

20 Yes, sir?

21 PROFESSOR CHOPER: That's a daunting

22 request, Justice White.
282

1 CHAIRMAN WHITE: Well, yes, but I've had

2 it before.

3 PROFESSOR CHOPER: Justice White,

4 Members of the Commission, I'm Jesse Choper, just a

5 modest academic if that's not an oxymoron

6 representing, as I say in my statement, no

7 organization and no constituency, and really, with

8 no special expertise in judicial administration

9 generally, of the 9th Circuit in particular, but as

10 an observer of the administration of justice in the

11 federal courts and one who is generally concerned

12 both with the integrity and the efficiency of the

13 federal courts.

14 So, I think I can be very brief. I

15 simply want to highlight a few things that I

16 submitted in my written statement and then I'd be

17 happy to respond to any questions that you have.

18 I want to say at the outset that this is not, as is

19 true in most situations, a black and white

20 situation. There are obviously fair points that can

21 be made for dividing the 9th Circuit. But for three

22 reasons, one of which I feel especially strongly
283

1 about, I think that the balance falls quite strongly

2 in favor of preservation of the status quo.

3 The first is the very close to unanimous

4 view of those most directly concerned, both on the

5 circuit itself and the district judges, the

6 bankruptcy judges, the magistrate judges, the

7 organized bar associations that have spoken to this

8 in the area, their overwhelming support for

9 preserving the status quo. It seems to me that

10 ought to put a pretty strong presumption in favor of

11 that preservation.

12 Second is that despite the size and

13 population coverage, acreage coverage of the states

14 and territories involved, if I can relate a personal

15 experience. For nearly 20 years now, I have been

16 giving a talk to the Conference of Western Attorneys

17 General at their annual meeting and have sort of

18 hung around there both before and after my talk, and

19 got to understand a number of common issues which

20 they discuss each time -- almost the same ones each

21 time -- with real seriousness and real

22 collaboration. The Western Attorneys General
284

1 Conference is not totally congruent with the 9th

2 Circuit but it's very close. Many of these issues

3 involve land and land regulation, water issues,

4 power, electric power, problems of Native Americans,

5 Immigration. Therefore, it would seem to me that

6 there is a pretty strong common subject matter

7 interest that efficiently and effectiveness would

8 indicate could be further --

9 COMMISSION MEMBER: May I ask a

10 question?

11 PROFESSOR CHOPER: Yes.

12 COMMISSION MEMBER: We live in a

13 democratic society where we say ultimately, the will

14 of the people will prevail. Now, assume the

15 situation is -- but it may or may not be. I'm not

16 passing any judgment on that. Assuming in these

17 five Northwestern states there were a strong desire

18 for a separate circuit. Regardless of what the

19 judges may think or anybody else, just a sort of

20 popular political desire to have a region or court

21 of their own. To what extent should that be given

22 any weight?
285

1 PROFESSOR CHOPER: Well, I think that's

2 certainly entitled to weight. But it really leads

3 me to my third point. I want to respond -- if this

4 is not wholly responsive, I welcome you following up

5 on that.

6 It seems to me as a disinterested

7 observer that a prominent motivation behind the

8 split of the circuit is for ideological reasons. I

9 would say that it's going to be very difficult to

10 correlate some broad based view of those who are

11 governed by the 9th Circuit, even in those

12 Northwestern states, in contrast to the motivation

13 for the split. The split has to do with the

14 perceived ideological reasons -- as I put it in the

15 notes that I submitted that the court has seen -- as

16 dominated by liberal activist judges from

17 California.

18 COMMISSION MEMBER: You wouldn't have

19 said that about the Hruska Commission recommendation

20 25 years ago, would you?

21 PROFESSOR CHOPER: I'm not familiar with

22 all the details of that.
286

1 COMMISSION MEMBER: But you have no

2 reason to think that was politically motivated in

3 the way you're saying it is now?

4 PROFESSOR CHOPER: I certainly have no

5 reason to believe that because I haven't looked at

6 that with any great care. But I think --

7 COMMISSION MEMBER: There have been

8 times when the 9th Circuit Court of Appeals' judges

9 themselves have favored a division of the circuit. 

10 I'm wondering where it gets us to say it's

11 politically motivated. I mean, the subject has been

12 under debate for a long time and various people have

13 taken different positions and so on. How does this

14 advance the Commission's job?

15 PROFESSOR CHOPER: Well, it seems to me

16 as is true of any issue of economic, social or

17 judicial policy, you have to look at the present

18 circumstances. While there may well have been at

19 the time of the Hruska Commission very good reasons,

20 indeed, overwhelming reasons -- I don't know. I

21 just want to hypothesize that -- those I do not

22 think are the reasons today. I think most people,
287

1 indeed a very high percentage of those who are

2 professionally involved with the work of the circuit

3 as I understand it, are satisfied.

4 COMMISSION MEMBER: Let me ask a

5 question on that. Judges outside of the 9th Circuit

6 that one talks to, other court of appeals judges,

7 district judges, there is -- at least the ones I've

8 talked to -- overwhelming, the viewpoint, that the

9 9th Circuit is just too large. That they have asked

10 for ten more judges. If they got up in the 30s,

11 that's just too large a number of judges to operate

12 effectively, not as an administrative unit but as a

13 judicial unit.

14 I don't necessarily hold that opinion,

15 but that is what you get among judges which doesn't

16 have anything to do with ideology on all sides of

17 the spectrum. Now, what do you say to that?

18 PROFESSOR CHOPER: Well, as I said at

19 the outset, I think that there are fair points that

20 can be advanced. It seems to me that the strongest

21 argument would be one of collegiality. I don't mean

22 cordiality, people polite to one another but getting
288

1 to know one another and one another's views and

2 approaches and so forth. My own view is that that's

3 a plus. But I think that it is very substantially

4 outweighed by the overall effectiveness. You know,

5 I mean, I don't think anyone would say that this is

6 a perfect circuit or a perfect world for that

7 matter.

8 COMMISSION MEMBER: Let me ask you, what

9 harm would it do if the --

10 PROFESSOR CHOPER: I'll tell you, my --

11 COMMISSION MEMBER: -- United States

12 just decided for good and sufficient ideological

13 reasons to do?

14 PROFESSOR CHOPER: I'd offer three

15 reasons. One is that if you assume or if you'll

16 grant me that it is for ideological reasons, see, I

17 think that's an evil in itself, although I don't

18 have any doubt that Congress has the power for

19 whatever partisan reasons to split the circuit. I

20 don't think that's a good or an appropriate reason. 

21 But on a more practical basis, you do know what

22 you've got, you don't know what you don't have. 
289

1 What you've got is an effectively operating

2 institution and organization. 

3 This is the reason that I feel most

4 strongly about. There's going to be an enormous

5 cost, both financial and otherwise, to serve this

6 particular end. It's not deciding that if the

7 members of the Senate feel, or the President, that

8 the ideological composition of the judges on the 9th

9 Circuit is something that they're not in agreement

10 with, I think they have the appropriate authority to

11 change it that way. I think that the political

12 branch's role under our, you know, system of

13 separation of powers, checks and balances the role

14 of the political branches in disrespect in respect

15 to the independence to judiciary is to determine who

16 goes on there and our history shows that.

17 COMMISSION MEMBER: The harm is that the

18 motives are bad. I mean, your main argument here is

19 that the motives of doing it, the purposes behind

20 doing it in the Senate at least is a bad motive.

21 PROFESSOR CHOPER: They're bad motives

22 and I don't see good ones, see? I mean, I do see
290

1 some good ones, but if you look at the effective

2 operation of this organization called the 9th

3 Circuit, I think it's in pretty good shape. I think

4 it would be very costly to have it otherwise.

5 Thank you very much.

6 CHAIRMAN WHITE: Thank you.

7 PROFESSOR JOHNS: Mr. Justice White and

8 Members of the Commission, my name is Margaret

9 Johns. It's really a privilege to be before you

10 today. 

11 I hope that my experience in the 9th

12 Circuit will be of some help to you as you study the

13 federal courts. My experience is really in a number

14 of capacities. I served as the chair of the 9th

15 Circuit District Local Rules Review Committee which

16 reviewed all the district court rules, civil,

17 criminal and admiralty for all the 15 districts

18 within the circuit. I serve currently as the

19 coordinator --

20 COMMISSION MEMBER: You have reviewed

21 Arizona's admiralty rules?

22 PROFESSOR JOHNS: Any district that had
291

1 them, we reviewed them. Actually, the admiralty

2 rules were one of the more interesting ones because

3 they're used in in-round procedures and drug

4 forfeiture cases, so it was a pretty hot and

5 controversial area. Admiralty was fun.

6 I currently serve as the coordinator for

7 the 9th Circuit Pro Bono Project. They have a

8 coordinator in each district and I serve as the

9 district coordinator for the Eastern District of

10 California. I have served in the past as a lawyer

11 representative to the 9th Circuit Judicial

12 Conference and I am currently the director of the

13 King Hall Civil Rights Clinic which litigates civil

14 rights cases by appointment both in the Eastern

15 District of California and in the 9th Circuit. So,

16 I have a fairly wide range of experience in the 9th

17 Circuit.

18 But I'd like to focus my remarks today

19 on two projects that I've been involved in which I

20 think illustrate the innovative responses of the

21 circuit to the challenges of the increasing

22 jurisdiction and resulted increase in caseload that
292

1 is burdening the federal courts, including the 9th

2 Circuit and as well as all the other circuits. 

3 Because I think these models show ways for other

4 circuits to consider improving both the efficiency

5 of their court administration as well as the quality

6 of justice in the federal courts. The two that I

7 wish to talk about are the Local Rules Review

8 Project and the Pro Bono Project.

9 The Local Rules Review Project -- as you

10 of course know, the Federal Rules of Civil Procedure

11 were adopted in the '30s to establish a consistent,

12 simple and uniform procedural framework for the

13 entire United States. By the 1980s, there were more

14 than 5,000 procedural initiatives in the district

15 courts. By the 1990s, that had multiplied to an

16 accountable number, at least an uncounted number.

17 Concerned about the lack of primacy of

18 the federal rules and the increasing bulkanization

19 of local procedures, Congress adopted the Judicial

20 Improvements Act, and after that the Federal Rule of

21 Civil Procedure of '83 was devised to have the

22 circuit judicial councils review local procedural
293

1 rules for consistency with the federal rules and for

2 duplication of the federal rules. Of course, when

3 they did that they didn't appropriate any money for

4 this project and as a result, very few circuits have

5 really undertaken a comprehensive review of district

6 local rules despite their statutory obligation.

7 The 9th Circuit, in an innovative

8 approach and I think largely because of the

9 circuit's concern with its federalizing function

10 over a vast geographical area, was determined to, in

11 fact, carry out this responsibility -- under Chief

12 Justice Wallace it was started, and it was completed

13 under Chief Judge Hug -- where they delegated it to

14 the Conference of Chief District Judges and they

15 delegated it to our committee which consisted of

16 Chief Judge Quoile of the Eastern District of

17 California, Chief Judge Hogan of the District of

18 Oregon, Chief Judge Kay, who spoke to you earlier

19 from Hawaii, Professor Carl Tobias from Montana, and

20 a lawyer representative Tom McDermott, who is the

21 chair of the lawyer representatives, at the time, to

22 the 9th Circuit -- Tom McDermott in Los Angeles. I
294

1 was the chair.

2 We reviewed all the rules. After we

3 reviewed the individual rules, we allowed the

4 district courts to comment. The response was

5 remarkable. Most district courts revised their

6 rules to correct the duplication and the

7 inconsistency. As a result, there has been a across

8 this vast geographic region a great improvement in

9 the efficiency of administration. I think that's

10 important for two things for your consideration. On

11 the Commission, I think it's important to remember

12 that a circuit is responsible not just for

13 processing appeals, but it has responsibility for

14 the administration of justice in the district courts

15 as well. I think the 9th Circuit, partly because of

16 its size, has taken a more consistent approach to

17 that and been very conscientious in discharging its

18 function which could be a model for other circuits

19 to follow.

20 COMMISSION MEMBER: May I interrupt just

21 a moment --

22
295

1 PROFESSOR JOHNS: Sure.

2 COMMISSION MEMBER: -- as Judge Merritt

3 raised earlier on, we've heard little or not

4 complaints about the circuit. The problems focus on

5 the court of appeals. Now, do you have any thoughts

6 about what, if anything, needs to be done concerning

7 the court of appeals looking ahead, down the years

8 in the future, as appeals grow and judges grow?

9 PROFESSOR JOHNS: I certainly don't have

10 all the answers, but my inclination in terms of what

11 the proper remedies would be for the growing docket

12 as appeals grow and as the population grows, is to

13 try to develop more efficient ways to deal with it

14 rather than simply continually adding more judges

15 and then getting a court that's too big, and then

16 splitting it up so you get fragmented into --

17 JUDGE RYMER: Like what, for example?

18 PROFESSOR JOHNS: Well, I think like

19 what the 9th Circuit is doing. I think --

20 JUDGE RYMER: Yes, I mean, I agree with

21 that, but the hypothesis is that as caseloads grow,

22 judges grow. So, are you saying that continuing
296

1 what it's doing will still serve as efficiently?

2 PROFESSOR JOHNS: Well, I think they

3 have to continue to develop new innovations to deal

4 with the --

5 JUDGE RYMER: Okay, like what?

6 PROFESSOR JOHNS: Well, for example, I

7 think the use of staff attorneys that they're doing. 

8 At least the area I'm familiar is with the pro se

9 litigation. But I think that there is an increasing

10 efficient use of staff attorneys to administer the

11 cases, the use of the commissioner to handle motions

12 that are not required to be resolved by a judge.

13 JUDGE RYMER: In other words, you

14 believe it's consistent with the Congressional

15 mandate to adhere to the notions of due process and

16 fairness, to put more of the judicial workload on to

17 non-judicial officers?

18 PROFESSOR JOHNS: I think if it is

19 carefully done, I think that can in fact improve due

20 process. Yes, I very much believe that. Because

21 the cases that I'm appointed to represent --

22 I have two capacities that I'm
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1 responding and I should clarify them. One is as a

2 person who is appointed to represent pro se

3 litigants in the federal courts. The other is as

4 the coordinator of the pro bono project. My

5 experience from both of those leads me to the same

6 answer which is, without the staff attorneys'

7 diligent review of the thousands of prisoners

8 petitions that get filed, the needles in the

9 haystack would be undiscovered. I just don't think

10 the judicial officers can possibly wade through that

11 mountain of filings without help.

12 COMMISSION MEMBER: Well, given that,

13 Professor Johns, as the caseload grows and the

14 workload grows -- and I don't mean this facetiously

15 but I'm curious -- the judicial officers, Judge

16 Rymer suggests, becomes now a judicial supervisor of

17 other decision makers. Don't you see some inherent

18 danger in that? Don't you see some constitutional

19 infirmity in that process?

20 PROFESSOR JOHNS: I see a real danger if

21 that's not handled very carefully. That's why I

22 think the way the model that's worked in the pro
298

1 bono project is the one that I'd offer as a very

2 careful and thoughtful one. Staff attorneys are not

3 making the decisions on the merits of the cases. 

4 They're weighting the cases in terms of --

5 COMMISSION MEMBER: No, I'm not

6 suggesting they are, but you're suggesting that in

7 the future you might delegate more and more of that

8 authority to meet mounting caseload, if I understood

9 you.

10 PROFESSOR JOHNS: I probably didn't make

11 myself clear. More and more sort of the preliminary

12 sorting and more and more of the kind of triage that

13 has to go in to -- in the 9th Circuit, historically

14 it has been about 30 percent of the caseload has

15 been in pro se. I think that having that be

16 administered at the sorting level by staff attorneys

17 with a view to identifying the serious and complex

18 cases so that they get counsel is to serve due

19 process and equal protection because then they

20 actually have counsel. 

21 I think if you don't do that, the

22 alternative is these people never get counsel and
299

1 their cases, I don't think, are heard with the same

2 seriousness which they are given now. The cases

3 that are sorted out as being complex or meritorious

4 cases are treated with as much dignity as the most

5 serious anti-trust case because you have counsel

6 appointed and because the judges on the 9th Circuit,

7 in my experience -- well, in the district court,

8 too. I don't mean to --

9 CHAIRMAN WHITE: You have about a

10 minute, Professor.

11 PROFESSOR JOHNS: Thank you.

12 My point being that I think it serves

13 both efficiency and equality of justice in having a

14 system where the serious cases are identified and

15 representation is provided. I think that can only

16 happen by the staff attorneys doing the preliminary

17 work.

18 Thank you.

19 CHAIRMAN WHITE: Thank you.

20 CLERK: Would the next panel come

21 forward, please? Peter Benvenutti, Jerome Braun,

22 Peter Davis, and Walter Johnson.
300

1 CHAIRMAN WHITE: Mr. Benvenutti.

2 MR. BENVENUTTI: Justice White, Members

3 of the Commission, my name is Peter Benvenutti. 

4 It's a real pleasure for me to be here and an honor

5 for you to give me this opportunity.

6 I'm going to try to highlight some

7 personal views that I've put in my written

8 testimony. Since I submitted that, I've also been

9 asked to speak on behalf of the Bar Association of

10 San Francisco. So, I'd like to save a couple of

11 minutes at the end of my time to do that, if I may.

12 I come before you as a practicing

13 bankruptcy lawyer. I am not an appellate

14 specialist. I do not have daily experience in the

15 courts of appeal so my perspective is that of one

16 who deals, as I do, with the work product of the

17 courts of appeals, and in particular the decisional

18 authority. I've been practicing for about 25 years. 

19 My practice is a regional one. It is based in

20 California but it extends to other parts of the

21 western states as well. That's the perspective that

22 I bring to bear.
301

1 From that perspective, I'd like to

2 suggest that a very important product of the

3 judicial system is predictability and uniformity of

4 decisional authority. I suggest to you that the

5 size of the 9th Circuit from that perspective is a

6 great value, both in terms of the volume of

7 decisional authority which a practitioner such as

8 myself can look to, and because of the geographical

9 coverage of the circuit which meshes with the scope

10 of my practice and I think that of many other people

11 who do the kind of work that I do. 

12 That is consistent with, in my

13 observation, the current nature of business and

14 commercial affairs which tend increasingly to be

15 regional, national or international in scope as

16 opposed to heavily localized. I would suggest to

17 you that a change in the current system which

18 divides the 9th Circuit is inconsistent with the

19 approach or the trend in modern business which, as I

20 said, is I think to a more regional and

21 international perspective.

22 COMMISSION MEMBER: What, if any,
302

1 changes do you think ought to be made in bankruptcy

2 appeals?

3 MR. BENVENUTTI: The current structure

4 of the Bankruptcy Appellate Panels works, I believe,

5 reasonably well with one significant limitation and

6 that limitation is the jurisdictional structure. I

7 realize the jurisdictional structure is

8 constitutionally imposed. I am generally, although

9 not in detail, familiar with some of the proposals

10 to do away with the BAP, to have appeals go directly

11 from the bankruptcy courts to the circuit courts of

12 appeals. I don't have a view as to how successfully

13 that would work.

14 What I have observed in my practice

15 though is that there is fairly widespread acceptance

16 of the precedential authority, not as a matter of

17 jurisprudence, but as a matter of practice of

18 Bankruptcy Appellate Panel decisions within the 9th

19 Circuit at the bankruptcy court level and among

20 practitioners. I suggest to you that particularly

21 in view of the jurisdictional limitations on the BAP

22 structure that the principle users of that
303

1 decisional authority give credibility and weight to

2 BAP decisions. It is a testament to the importance

3 to practitioners such as myself and to trial courts

4 of the availability of a uniform body of decision.

5 CHAIRMAN WHITE: If you practitioners

6 are accepting the BAP decisions and relying on it,

7 why did this Commission put so much emphasis on

8 having a really binding notion about what the

9 bankruptcy code is? Why weren't they just satisfied

10 with what the appellate jurisdiction is?

11 MR. BENVENUTTI: Justice White, there is

12 no question that the current jurisdictional

13 structure offers a wild card to anyone who wishes to

14 take advantage of it.

15 CHAIRMAN WHITE: Yes.

16 MR. BENVENUTTI: I've taken advantage of

17 it myself from time-to-time where it seemed to serve

18 the interests of my client to do so. That, I think,

19 from a systems standpoint is not a good thing. I

20 certainly don't fault those who grapple with ways to

21 improve that situation, but I don't think there's

22 any perfect solution to it.
304

1 CHAIRMAN WHITE: Yes, all right. 

2 Because of marathon and (indiscernible)?

3 MR. BENVENUTTI: Yes, Justice White.

4 CHAIRMAN WHITE: Over my dead body.

5 COMMISSION MEMBER: When are you better

6 off appealing to the BAP than to the district court?

7 MR. BENVENUTTI: As an appellant my

8 experience has been, although each case has to be

9 evaluated separately -- but as a generalization, my

10 experience has been that if it is a technical

11 question of bankruptcy law one is better going to

12 the BAP than one is to the district court because,

13 again, as a generalization, my experience is that

14 the district judges have some tendency to defer to

15 the expertise of the bankruptcy court judge if it is

16 a matter of technical bankruptcy law. 

17 If it is a matter of trial practice or

18 something else that doesn't fit within the rubric of

19 technical bankruptcy law, then my experience is that

20 the district court may be a better place, a more

21 favorable forum for an appellant to go but not if

22 it's in the technical area.
305

1 CHAIRMAN WHITE: Maybe you might go

2 there if the problem is at the (indiscernible) state

3 court law.

4 MR. BENVENUTTI: To the BAP?

5 CHAIRMAN WHITE: No, to the district

6 court.

7 MR. BENVENUTTI: District court, yes,

8 because again, that will be something that I think

9 the district judge may be more willing to take an

10 entirely fresh look at as opposed to having some

11 implicit notion of deference to the technical

12 expertise of the bankruptcy judge.

13 CHAIRMAN WHITE: All right. All right.

14 MR. BENVENUTTI: One other point I'd

15 like to make about the desirability of having a

16 large circuit such as the 9th, on occasion there has

17 been, in my experience, the use of bankruptcy judges

18 from other districts on temporary assignments. I

19 think that's a good thing. It helps to balance out

20 caseloads. I would suggest that if the circuits

21 were smaller, if the 9th were divided in some

22 fashion, it would be more difficult to do that. I
306

1 don't think that's a compelling reason but I think

2 it is one that factors into the balance.

3 If I can, I'd like to speak briefly on

4 behalf of the Bar Association of San Francisco, of

5 which I am a member. This is a voluntary

6 association with about 9,000 dues paying members. 

7 It's the second largest voluntary bar in California

8 after the LA County Bar Association, and it's the

9 second largest bar in the country for a single city

10 after the New York Bar Association.

11 (indiscernible) the Bar Association of

12 San Francisco has taken a formal position opposing

13 the split of the 9th Circuit. It adopted a

14 resolution last summer when the focus was whether

15 there was a particular split that was to be adopted. 

16 The resolution focused upon the desirability of a

17 procedural approach and the creation of this

18 Commission as opposed to adoption of the approach

19 that was then pending in the Senate. But I think

20 the reasons bear repeating here, the reasons for the

21 position which the bar association took.

22 First, if I may summarize them, it was
307

1 the desirability of the inclusion of all of the West

2 Coast in a single circuit to provide a uniform and

3 predictable body of jurisprudence for the Pacific

4 rim region to avoid conflicts within or between

5 states within that region which we believe have a

6 common body of interests, business and the like.

7 CHAIRMAN WHITE: And to reduce their

8 legal fees.

9 MR. BENVENUTTI: That was not explicitly

10 a factor in the consideration.

11 CHAIRMAN WHITE: No, but it's a fine

12 idea.

13 MR. BENVENUTTI: Well, I think any bar

14 association would formally take the position that

15 efficiency and economy are good things in the

16 judicial system.

17 Then secondly, the point is when one has

18 an institution which works in the main well as we

19 believe the 9th Circuit does, the burden of

20 persuasion both of the fact there should be change

21 and of what is a better approach to the structure of

22 the system should be on those who wish to make a
308

1 change rather than on those who support the existing

2 institution which has functioned well.

3 My time is up. Thank you very much.

4 CHAIRMAN WHITE: Thank you, sir.

5 MR. BRAUN: Good afternoon, Justice

6 White, Members of the Commission. My name is Jerome

7 Braun. I'm a practicing attorney. Being 40th on

8 the calendar is a dubious distinction. So that in

9 the immortal words of Henry VIII, or was it

10 Elizabeth Taylor, to their third and fifth spouses,

11 "I won't keep you long."

12 I wear two hats here today.

13 CHAIRMAN WHITE: Good show.

14 MR. BRAUN: Thank you. I hope, however,

15 I can do better.

16 I wear two hats here today. One, I

17 bring you the position of the California Academy of

18 Appellate Lawyers, a group of close to 100 appellate

19 specialists in California who (indiscernible) two

20 weeks ago this weekend, a discussion by Judge Hug,

21 Sandy Smetkoff who testified in Seattle, I believe,

22 and has filed a paper with this Commission, and me
309

1 discussing -- I don't say debating because it was a

2 very civilized discussion amongst friends and

3 colleagues. I report to you the position of the

4 Academy by a substantial majority is to oppose any

5 split of the 9th Circuit.

6 COMMISSION MEMBER: Did I understand you

7 to say that three persons made presentations at this

8 gathering?

9 MR. BRAUN: Yes, but there was

10 considerable discussion, question and comment.

11 COMMISSION MEMBER: Was any one of the

12 presenters a person arguing for the division of the

13 circuit?

14 MR. BRAUN: No, but there were certainly

15 views from the floor and questions from the floor

16 asking, inquiring "what's wrong with it." If you

17 bear with me, I'll be happy to --

18 COMMISSION MEMBER: It's like an

19 appellate argument where the appellee wasn't

20 present.

21 MR. BRAUN: Well, I wouldn't put it that

22 way. The first amendment obtained and we didn't
310

1 round up a proponent of the split, but anyone who

2 wanted to speak to that had the right to do so and

3 did. They were outvoted significantly, Professor.

4 CHAIRMAN WHITE: Did Mr. Smetkoff belong

5 to your group?

6 MR. BRAUN: I'm sorry -- yes, Mr.

7 Smetkoff is a good friend of mine and a colleague.

8 CHAIRMAN WHITE: Yes, well, he testified

9 that he would like to split the circuit.

10 MR. BRAUN: I don't believe that's his

11 position, Your Honor.

12 COMMISSION MEMBER: I think he advocated

13 organizing the court of appeals into divisions.

14 MR. BRAUN: Divisions, that's correct,

15 along the priest (indiscernible) lines of the 5th

16 Circuit.

17 COMMISSION MEMBER: Did your

18 organization take any position on that proposal?

19 MR. BRAUN: Well, it was not adopted as

20 a position of the Academy nor was it tabled. It

21 simply was not --

22 COMMISSION MEMBER: Was it discussed?
311

1 MR. BRAUN: Yes, of course it was

2 discussed. We discussed what's wrong with it and

3 why it didn't work in the 5th and why it won't work

4 here, and why it's --

5 JUDGE RYMER: Why wouldn't it work here?

6 MR. BRAUN: Well, because if the circuit

7 is in such bad shape --

8 JUDGE RYMER: I didn't say the circuit,

9 court of appeals.

10 MR. BRAUN: Court of appeals.

11 JUDGE RYMER: Why doesn't it work for

12 the court of appeals --

13 MR. BRAUN: Court of appeals, court of

14 appeals.

15 JUDGE RYMER: -- to (indiscernible) a

16 division?

17 MR. BRAUN: There's several reasons,

18 Judge Rymer, why it won't work because it doesn't

19 meet the core problem here which is --

20 JUDGE RYMER: Which is?

21 MR. BRAUN: Which is the workload and

22 the burden of the influx of cases.
312

1 JUDGE RYMER: Well, but it --

2 MR. BRAUN: The divisions will simply

3 divide the number of judges and the number of cases

4 with --

5 JUDGE RYMER: No, but it could be

6 infinitely increased without affecting collegiality. 

7 You could have two divisions, you could have three,

8 you could have five, you could have eight -- however

9 many you needed in order to handle the caseload. 

10 So, it might be the best way to do that and yet

11 still maintain collegiality.

12 MR. BRAUN: It seems to me that the

13 workload problem remains the same unless the number

14 of judges are increased. 

15 JUDGE RYMER: I'm saying, they could be

16 infinitely increased. The number of judges could be

17 -- you could have two divisions of nine judges each,

18 or you could have three divisions of nine judges

19 each. You could have five divisions of nine judges

20 each or eight divisions.

21 MR. BRAUN: Yes, you could have all that

22 and as the Hruska Commission pointed out a long time
313

1 ago, one of the problems with that is simply those

2 divisions, in effect, become circuits and ultimately

3 will be constructed.

4 COMMISSION MEMBER: You haven't

5 mentioned what some people identify as a major

6 problem. As the court of appeals gets larger and

7 larger and larger, the erosion of the kind of

8 collegiality that many would argue you need in

9 appellate court, and the increasing threat of

10 incoherent decisions. Now, the divisional idea is

11 designed to meet those twin problems.

12 MR. BRAUN: Well, let me say this --

13 COMMISSION MEMBER: You wanted to know

14 what problems it cured. Those who argued for it, at

15 least some of them say that the divisional idea

16 would meet those problems.

17 MR. BRAUN: Two things, one of which I

18 can speak about and the other collegiality is beyond

19 my can, other than what I know from talking to

20 judges on the court.

21 As far as consistency versus conflict, I

22 respectfully suggest to this Commission that that is
314

1 not even anecdotal but apocryphal. There is little

2 or no conflict in the decisions in this circuit. 

3 The most dramatic statistic that underlines that is

4 in the last 171⁄2 years since we've had an en bank

5 court, there have been only 24 cases taken by the

6 circuit court involving any ostensible possible

7 conflict. 

8 Now that is not a very significant

9 number. What it tells me is that the notion that

10 there's intra-circuit conflict is a red herring. 

11 It's an afterthought. It's a make-weight and

12 without any real substance and at least speaking for

13 a good number of practitioners with whom I am

14 conversant, it is not an issue.

15 Yes, sir?

16 COMMISSION MEMBER: Do you handle a lot

17 of appeals in the state court system?

18 MR. BRAUN: Over the years, I have

19 handled a lot of appeals, yes, in state and federal

20 court.

21 COMMISSION MEMBER: The state court

22 appellate system, is that alike, equal quality or
315

1 similar quality to the federal appellate system from

2 your point of view?

3 MR. BRAUN: Well, I'd better turn around

4 and see who's here in the courtroom here.

5 Seriously, at the appellate level, I

6 would say the quality is good. It varies from

7 division to division which is a distinction that is

8 important in the circuit court. In the state

9 district courts of appeal, they sit by divisions

10 which seldom, if ever, change. They change by

11 retirement, by death, or some other extraordinary

12 reason. So that, you're not getting the mix and

13 match, so to speak, that we have in the circuit

14 where we are getting the very kind of diversity

15 that, at least from my point of view --

16 COMMISSION MEMBER: Is the law in those

17 divisions fairly stable? The law in the state court

18 divisions that you're talking about, is it fairly

19 coherent and stable?

20 MR. BRAUN: Well, coherent is one thing;

21 stable is another. I remember Justice Carl Anderson

22 who was the Administrative Presiding Justice of the
316

1 1st Appellate District standing up at a luncheon and

2 saying, "look, each division decides its cases the

3 way it damn well pleases and let the Supreme Court

4 do something about it." That's an accurate quote

5 and Carl himself has repeated it on occasion. So, I

6 think that's something of an answer to your

7 question, Judge Merritt.

8 COMMISSION MEMBER: Take care of it in

9 the Supreme Court.

10 MR. BRAUN: I'm sorry.

11 COMMISSION MEMBER: They figure the

12 Supreme Court is stable to resolve any conflicts

13 (indiscernible).

14 MR. BRAUN: Sooner or later, yes.

15 COMMISSION MEMBER: It sounds like Judge

16 Anderson himself was consistent.

17 MR. BRAUN: I'm sorry?

18 CHAIRMAN WHITE: Mr. Smetkoff in his

19 departmental, he divided California between the

20 department. I had always thought that that would be

21 a split.

22 MR. BRAUN: Well, sir, I fully
317

1 appreciate Your Honor's question, but Peter Davis is

2 an expert on that subject and follows me. Perhaps

3 he can address it better.

4 CHAIRMAN WHITE: All right.

5 MR. BRAUN: In the time I have left, and

6 I know it can't be much, let me say that I have a

7 proposal. I speak not as a representative of the

8 California Academy but as a private citizen, a

9 litigant who has spent a lot of time around these

10 halls. That is a proposal that this Commission can

11 take back -- Judge Rymer, along your line of

12 questioning -- and say "well, here's something that

13 can be done." It's within the purview of this

14 Commission to make a recommendation without having

15 to take the drastic step of dismantling an

16 institution that's 100 years old in the opinion of a

17 majority of us of the bench and the bar functions

18 well.

19 That is, in order to meet the workload

20 problem and the inundation, there's two things that

21 can be done, one of which has been mentioned

22 repeatedly. It's obvious and it is within Congress'
318

1 reach which is to fully staff the court, to fill the

2 vacancies, and grant such new judges to the circuit

3 court as is appropriate. That's so obvious that

4 I'll say no more.

5 The other is having in mind the well

6 established distinction now between error correction

7 and law declaration. Functions now performed by the

8 circuit court on both levels. There is no reason

9 why the court has to spend as much time as it does

10 on error correction. A startling statistic that no

11 one has mentioned is that of the decisions of the

12 9th Circuit court of appeals, only 17 percent or so

13 are published. That leaves well over 80 percent

14 that are not. Those are category one cases and

15 there are a lot of error correction cases that

16 really do not require the attention of the circuit

17 court.

18 I hasten to say, however, that those

19 litigants are entitled in my opinion, and I think

20 it's generally recognized -- they're entitled to one

21 appeal as a matter of right by an Article III judge. 

22 Now that can be accomplished by a -- I won't say a
319

1 simple expedient, but an expedient that has been

2 much discussed in the cases. I know Professor

3 Meador, amongst others, is quite familiar with it,

4 and that is the use of a district court appellate

5 panel.

6 Now, for some reason that I don't know,

7 but you folks may, there is a sense that there's

8 more elasticity at the district court level in terms

9 of adding new judges than there is in any circuit. 

10 Accordingly, I suggest to you that by establishing a

11 district court appellate panel, a DCAP, that a very

12 significant amount of judicial business involving

13 error correction can be diverted to a district court

14 appellate panel of Article III judges. Therefore,

15 it will enable, facilitate maintaining this circuit

16 as it is presently constituted and enable it to

17 function further.

18 If I may conclude, Your Honor, Professor

19 Meador asks, "what difference will it make to values

20 whether this circuit is divided?" There is a value

21 amongst the practicing bar and its clients that we

22 need a uniform law in the Pacific rim. Not just in
320

1 the north, not just in the south, but a uniform law

2 in the Pacific rim. The only way to get that and to

3 have a national court of appeal with a federalizing

4 influence is to maintain this circuit and at the

5 same time, address the concerns of those who are

6 concerned about its size and its numbers. I believe

7 the DCAP is a way to do that.

8 Willy Nelson wrote a song called "how

9 long is forever this time?" Well, I don't think we

10 have to answer that today. What we have to do is

11 say, "well, there's a way we can continue to

12 function well on this circuit." I would hope and

13 trust that this Commission would make such a

14 recommendation to Congress. Thank you.

15 CHAIRMAN WHITE: Mr. Davis.

16 MR. DAVIS: Mr. Justice White and

17 Commission, I promise to abide by my time limits.

18 The Commission has my statement. I

19 would be happy to answer your questions in any

20 direction you want. But absent your directing me

21 otherwise, I'd like to address two points in

22 particular that I think my particular experience as
321

1 an appellate lawyer for 25 years, both in the 9th

2 Circuit and in some other circuits, but in the state

3 appellate system might be useful to you. Those two

4 issues are the pros and cons of divisions or smaller

5 units of a court.

6 COMMISSION MEMBER: How many divisions

7 are there in California of the intermediate

8 appellate court?

9 MR. DAVIS: There are six districts. 

10 There are about 90-plus, almost 97 judges in the

11 intermediate appellate court. They're in six

12 districts. Three of those have divisions and three

13 don't. So, in the first district, for example,

14 which is San Francisco, there are five divisions and

15 there's seven in Los Angeles and there's three in

16 the 4th. The others don't have districts or

17 divisions, sorry. But all of these units, there are

18 none of them who are driven (indiscernible). The

19 divisions are all four or three justices. The

20 districts that don't have divisions are all less

21 than 10. So, what you have here a little bit is a

22 laboratory of a very large number of judges, all
322

1 divided into little tiny units, relatively small

2 units, that are deciding the same law, the law of

3 California. I think that's useful. 

4 I'm also a member of the California

5 Academy of Appellate Lawyers, although I missed that

6 meeting. I've been a member for about 20 years and

7 we've been debating the issue for as long as I can

8 remember about whether larger courts or smaller

9 courts are better in the context of the divisions of

10 the California court. Should we have a bigger pool

11 of justices more like the 9th Circuit? Or should we

12 have a smaller pool and do it in divisions? I think

13 it's fair to say that the majority feel -- and some

14 of them feel quite strongly -- that the larger group

15 is better than the smaller group. There are a

16 number of reasons for that.

17 JUDGE RYMER: You're talking, if I

18 remember it right, is a division would have three

19 justices.

20 MR. DAVIS: Four -- yes, three or four,

21 right.

22 JUDGE RYMER: Okay, no more than that?
323

1 MR. DAVIS: Right, right.

2 COMMISSION MEMBER: Also, does it have

3 (indiscernible) an en bank procedure available like

4 in California appellate courts? There's no en bank

5 process available.

6 MR. DAVIS: That's correct. That's

7 correct.

8 COMMISSION MEMBER: And each of these

9 divisions and units handles the entire docket. 

10 There's no allocation of division by subject matter

11 among them, isn't that right?

12 MR. DAVIS: That's also correct. That's

13 also correct.

14 CHAIRMAN WHITE: But no appeal has the

15 right to the Supreme Court?

16 MR. DAVIS: That's correct too. 

17 Discretionary review much like (indiscernible).

18 CHAIRMAN WHITE: Yes, and even on state

19 constitutional questions?

20 MR. DAVIS: Death penalty -- the only

21 exception is death penalty cases.

22 CHAIRMAN WHITE: Thank you.
324

1 MR. DAVIS: Yes. So, here you have a

2 court with all of these little units working

3 together. It's a very collegial court in the sense

4 it has been defined here where they're working with

5 the same three or four people or maybe six or seven

6 or eight for years after years after years. They're

7 all trying to apply the same law and there's no

8 starry decisis role as to other intermediate

9 appellate courts. There is, of course, as to the

10 Supreme Court. They don't have to follow the law of

11 another panel or even their own law that they

12 decided elsewhere.

13 So, I think it's a useful analogy to say

14 "all right, people say small courts are better. You

15 get more" --

16 COMMISSION MEMBER: Mr. Davis, excuse

17 me. I'm sorry. You're saying these panels that

18 you're describing don't have to follow the law of

19 their own panel previously announced?

20 MR. DAVIS: Right. They can change it.

21 PROFESSOR MEADOR: Well, you don't

22 really have a fair comparison here, do you?
325

1 COMMISSION MEMBER: I suppose they can

2 change it, but -- I'm sorry, Professor. 

3 Do they have to change it or are they

4 free to just -- like a district judge and decide

5 cases differently.

6 CHAIRMAN WHITE: Well, they overrule it,

7 don't they?

8 MR. DAVIS: They do both, just like

9 every other court I've ever appeared in.

10 COMMISSION MEMBER: Well, then I agree

11 with Professor Meador. It's not a fair analogy at

12 least to what we've been told the circuits -- the

13 9th Circuit is doing.

14 MR. DAVIS: I believe it is in a couple

15 of sense. One is, in that setting, what kind of

16 consistency of decision making do you get? That's

17 one of the issues you have. Well, here we've got

18 the small collegial court and they don't have a rule

19 like you do in the circuit that you have to follow

20 another panel. So, do you get the splattering of

21 law all over the place? Do you get stability and do

22 you get consistency when even under those
326

1 conditions? 

2 In 25 years of practice, my experience

3 is that you get at least as much consistency in the

4 9th Circuit as you do in these little courts. I

5 don't see a difference. In other words, small

6 courts aren't the answer to making consistent

7 decision making in large court settings.

8 COMMISSION MEMBER: I'm sorry to

9 interrupt you but we're talking about something

10 different. I have no quarrel with their ability to

11 freely disagree with another panel and now it's a

12 different law making function. What I understood

13 you to say was they could disregard their own

14 precedent, the precedent of their own panel.

15 MR. DAVIS: They can change the law as

16 long as it is not governed by the Supreme Court.

17 COMMISSION MEMBER: I understand that. 

18 But then if there are inter-panel conflicts, the

19 Supreme Court in its discretion, can review those

20 and announce the law of California.

21 MR. DAVIS: Right.

22 COMMISSION MEMBER: But when a panel
327

1 changes its own law and it's under no command to

2 obey the law that the panel has announced, its own

3 law, you're telling me that's perfectly permissible

4 without overruling precedent, for them to do that?

5 MR. DAVIS: If it would help, I'll give

6 you an example of a case that a division in Los

7 Angeles decided. The first time the case came up

8 the court announced a rule and sent it back down in

9 reverse. The same case came back and they decided

10 they had it slightly wrong and changed the rule the

11 second time the case came back. That's the kind of

12 thing --

13 COMMISSION MEMBER: Acknowledging they

14 were wrong?

15 MR. DAVIS: Acknowledging that they were

16 wrong.

17 COMMISSION MEMBER: Well, that's

18 different.

19 COMMISSION MEMBER: Isn't the situation

20 basically what you have in California appellate

21 court system something like the federal system

22 nationwide? That is to say we have circuits, a
328

1 dozen territorial circuits. No one of them is bound

2 to follow the decisions of another. That's what you

3 have in these California districts, isn't it, that

4 no one is bound to follow another? Except if you

5 break it down even further than that, a division

6 within the district isn't bound to follow another.

7 Is that essentially what you have?

8 MR. DAVIS: They're only bound to follow

9 the precedent of the Supreme Court, much like the

10 various circuits are, right. And in that context, I

11 think you get about the same amount of judicial

12 consistency.

13 COMMISSION MEMBER: You're saying the

14 quality of the adjudicatory process there is more15 or-less the same as the quality in the larger court

16 like the 9th Circuit. That's what you're saying?

17 MR. DAVIS: My answer to that question

18 always depends on whether I just won or lost.

19 COMMISSION MEMBER: Yes.

20 MR. DAVIS: But yes, in general, I think

21 that in the sense, it is about the same quality. I

22 think the quality of the judges is good, although
329

1 there's some variation in all appellate courts and

2 California is no exception. In general, I think the

3 quality of the justice you get is good, but with

4 some exceptions. I found the 9th Circuit to be

5 exceptionally open to looking at the process and

6 changing the process and I have not found that in

7 the California courts. Some of the small courts are

8 very open to changing their process and some of them

9 are extremely resistant. 

10 Each one of these divisions has a

11 presiding justice and that presiding justice has his

12 or her own little system and they don't want to

13 change it. I've found that you get more one judge

14 opinions because as a small group sits together all

15 the time, there's less scrutiny of the other judges'

16 decisions. I found there's more inconsistency in

17 quality because if you get a small group that isn't

18 very good, you don't change that. So, you get a bad

19 division that sits there year after year after year

20 and you can get some good divisions. I found more

21 discrepancies in the procedures. 

22 Some of these divisions want to do their
330

1 own little rules. I found more discrepancies in

2 delay. Some of the divisions are quite slow and I

3 found that it's difficult to allocate the resources,

4 the judicial resources of the state to where they're

5 needed the most. In the first district, there are

6 less judges now.

7 COMMISSION MEMBER: There's less peer

8 pressure. That's what you're -- less peer pressure

9 in the small court, a very small court that

10 (indiscernible) than there would be with a larger

11 court.

12 CHAIRMAN WHITE: That's called

13 collegiality.

14 MR. DAVIS: I think the collegiality

15 thing runs the gambit. In a smaller court if you

16 have judges that don't get along -- and there's some

17 infamous examples of that in California -- then you

18 have a nightmare. Whereas, in a larger court,

19 that's not so much of a problem. But the problem is

20 that once you divide into small units, the

21 population shifts, change the needs of the court. 

22 We're finding that right now in California. But you
331

1 can't change the judges around to meet that need

2 very expressly. So, I believe that a larger group

3 of judges is more flexible and better able to meet

4 the needs of the state in terms of judicial

5 resources than is a small group.

6 I can see I'm about to get the sign. I

7 don't want to step down without asking you, pleading

8 with you to get more judges. In the end, it's a

9 very simple equation. You have the number of

10 appeals and the number of judges. Something like

11 what's going on in the 11th Circuit now where

12 they're handling almost 800 decisions per year per

13 judge is frightening. You have to petition the

14 staff to get access to judges in many divisions and

15 many circuits. 

16 Ultimately, the 9th Circuit innovations

17 are great, but they're never going to be enough. 

18 We're getting to the point where we don't have

19 decisions by Article III judges and I think that's

20 frightening. I think we need in the end to get

21 more justices, more judges, and that's the only

22 thing that's going to solve this problem.
332

1 Can I answer any further questions from

2 the Commission?

3 CHAIRMAN WHITE: Thank you.

4 MR. DAVIS: Thank you.

5 MR. JOHNSON: Good afternoon, Justice

6 White and Members of the Commission.

7 My name is Walter Johnson and I'm a

8 member of the law firm of Lillick & Charles here in

9 San Francisco, which has been serving maritime

10 clients on the West Coast since the 1920s. After

11 graduating from law school, I served one year as a

12 clerk, a law clerk in the 9th Circuit. Since that

13 time, I've been practicing maritime law here in San

14 Francisco. 

15 I'm not an appellate expert. I do know

16 something about the 9th Circuit. I've appeared

17 before the 9th Circuit on 10 or 12 different

18 matters. But I'm speaking to the Commission today

19 from the perspective of a practicing maritime

20 attorney. It's late in the day on a Friday

21 afternoon. I think what I have to say may be fairly

22 obvious. I think it's worth saying nonetheless and
333

1 I will try to be brief.

2 Maritime lawyers and their Pacific rim

3 clients are very, very fortunate in having a single

4 appellate circuit that stretches all the way from

5 San Diego and the Mexican Border in the South, up to

6 the North Slope of Alaska, and includes Hawaii and

7 some of the Pacific Islands.

8 CHAIRMAN WHITE: A better situation than

9 on the East Coast.

10 MR. JOHNSON: I think it is a better

11 situation than on the East Coast, yes.

12 So, when you think about it that way,

13 the 9th Circuit is huge, but I think it's also a

14 great benefit. It has always been assumed -- and I

15 think it's true -- that uniformity in maritime law

16 promotes maritime commerce. And that the promotion

17 of maritime commerce in turn promotes commerce in

18 general. It simply makes it easier and more

19 attractive to do business when you only have one law

20 to deal with rather than a multiplicity of laws.

21 That proposition may be common sense and

22 it may be just article of faith because I have no
334

1 way to prove it to you. I don't think any empirical

2 study has been done or can be done, but I feel it to

3 be true. It's implicit in the constitutional grant

4 of admiralty jurisdiction to the federal courts and

5 the Supreme Court has repeated it over and over in

6 decisions throughout the years.

7 Maritime commerce in the Pacific rim

8 region tends to be not only interstate, but

9 international in character, and to include not only

10 California but also the Pacific Northwest. Some of

11 the largest and most visible enterprises on the West

12 Coast such as Matson Navigation, American President

13 Lines, Carly Maritime --

14 COMMISSION MEMBER: Is maritime law

15 nationally a problem insofar as conflicts among the

16 circuits are a concern?

17 MR. JOHNSON: Well, just speaking from

18 the perspective of somebody who practices on the

19 West Coast, it's not as much of a problem here. But

20 I think it is a problem in places like the Gulf

21 Coast where you have two circuits.

22 COMMISSION MEMBER: Well, by that I mean
335

1 should there be a subject matter, national maritime

2 court because there is a sufficient problem in

3 maritime law, or should it be (indiscernible)? 

4 There was originally, before the federal court

5 system was organized under the articles of

6 confederation as I understand it, a maritime court. 

7 And we returned to that because there is sufficient

8 problems existing with uniformity of maritime law to

9 require it.

10 MR. JOHNSON: Well, I'm surprised and

11 delighted to hear you say that. I wasn't going to

12 mention anything about that because I didn't think

13 that was likely to be taken up. But a number of

14 maritime lawyers that I have spoken with in

15 preparation for coming here and speaking to you

16 today have said "why can't we have a national

17 appellate circuit dealing with nothing but admiralty

18 matters?" I've had others tell me "why can't we go

19 back to the days" -- and they weren't so long ago. 

20 It was, I think, the early 1960s when we had

21 admiralty courts. We had judges who sat in

22 admiralty and some of them who did nothing but
336

1 admiralty law. 

2 COMMISSION MEMBER: What do you think

3 about centralized appellate review in maritime

4 cases? What's your view of that proposal?

5 MR. JOHNSON: Well, from a maritime

6 lawyer's point of view, the Supreme Court takes up

7 far too few maritime cases and lets some rather

8 large and long standing conflicts persist.

9 CHAIRMAN WHITE: That's on the East

10 Coast.

11 COMMISSION MEMBER: Well, I mean, are

12 you saying you favor that proposal or not?

13 MR. JOHNSON: I would definitely favor

14 that proposal. Yes, I would.

15 CHAIRMAN WHITE: I think it would have

16 to be a separate court to satisfy the maritime

17 people, or maybe the federal circuit wouldn't like

18 those cases.

19 MR. JOHNSON: Possibly not. 

20 And there is a slippery slope if

21 admiralty has its own specialty courts. There are

22 other areas of law that would want their own
337

1 specialty courts as well, but this is something that

2 historically goes back 200 years ago where we did

3 have separate admiralty courts.

4 Another thing that has been proposed by

5 a number of admiralty lawyers I've spoken with is an

6 admiralty panel on the 9th Circuit. While there is

7 a lot to be said for rotating judges into different

8 panels for every month of hearings, at the same

9 time, there would be, I think, a lot of efficiency

10 to be gained in having a panel of three judges or

11 possibly four or five on a rotating basis who

12 decided admiralty appeals in the 9th Circuit.

13 COMMISSION MEMBER: How many admiralty

14 appeals do they have each year? Do you know?

15 MR. JOHNSON: I do not know the answer

16 to that one.

17 COMMISSION MEMBER: Has that proposal

18 ever been put to the court of appeals?

19 MR. JOHNSON: I don't believe it has.

20 CHAIRMAN WHITE: Well, I know a man here

21 in this room who will put almost any idea to

22 (indiscernible).
338

1 MR. JOHNSON: I'm not going to turn

2 around, Judge, but I think I know that man.

3 We have seen what's happened in the Gulf

4 Coast which used to be all under the jurisdiction of

5 the 5th Circuit and is now under the jurisdiction of

6 the 5th Circuit and the 11th Circuit.

7 CHAIRMAN WHITE: Yes.

8 MR. JOHNSON: I won't say that that's

9 been a disaster or that there have been any dramatic

10 discrepancies between what's done in the 5th and the

11 11th Circuit, but there are differences. I'm sure

12 if the 9th Circuit is split, there will be

13 differences in admiralty law in the Pacific Coast

14 and that will make it all the more difficult for us

15 to explain not only to our US clients, but in

16 particular to our overseas clients in Japan, in

17 Korea, in China.

18 CHAIRMAN WHITE: In the 9th Circuit, do

19 you have a judge like the 5th Circuit has?

20 MR. JOHNSON: John Brown?

21 CHAIRMAN WHITE: Yes.

22 MR. JOHNSON: I wish we did. I was
339

1 going to say that that's the great benefit. If

2 anybody here knows who John Brown is, that's the

3 great benefit of having appellate admiralty

4 specialists in the appellate court. When John Brown

5 issued an opinion, it commanded great respect not

6 just within the 5th Circuit, but within the entire

7 United States. It wasn't quite a Supreme Court

8 opinion, but it was very close to it in the kind of

9 respect it commanded.

10 That's also true -- I think there were

11 some district court judges --

12 CHAIRMAN WHITE: I read a lot of his

13 papers, but I don't think I ever really did much to

14 them.

15 COMMISSION MEMBER: Maybe they need an

16 admiralty lawyer on the Supreme Court too.

17 MR. JOHNSON: There you go. I'll

18 volunteer for that.

19 I was going to say that there was a

20 tradition back when we had admiralty courts and for

21 some years after that, that there were admiralty

22 specialists in the district court. That was also of
340

1 great benefit because there were judges who, like

2 John Brown, commanded a great deal of respect. When

3 they issued an opinion, even though it was a

4 district court opinion, it had influence well beyond

5 that district and even that circuit because so much

6 respect was afforded to that particular judge. I

7 think a lot is lost by dispersing the admiralty work

8 to judges who see it very seldom.

9 CHAIRMAN WHITE: So, there hasn't been

10 an admiralty lawyer nominated and confirmed in the

11 9th Circuit?

12 MR. JOHNSON: I can't answer that

13 question. I don't know.

14 CHAIRMAN WHITE: Thank you very much.

15 MR. JOHNSON: Thank you.

16 CLERK: This panel is dismissed and

17 we'll call our final panel today. Mr. Robert

18 Palmer, Michael Traynor, and James Wagstaffe.

19 MR. PALMER: Good afternoon, Mr. Justice

20 White, Members of the Commission. My name is Robert

21 Palmer.

22 CHAIRMAN WHITE: Mr. Palmer, you may
341

1 proceed.

2 MR. PALMER: Fine.

3 I, perhaps, am one of the few people

4 among the witnesses that are speaking as somebody

5 who has experience in the court as a litigant rather

6 than as a judge or an attorney. So, I sort of have

7 a different aspect, you might say, more from a

8 public view than most of the people who are here.

9 COMMISSION MEMBER: How many cases have

10 you had?

11 MR. PALMER: I'm not an attorney. There

12 was a misunderstanding.

13 COMMISSION MEMBER: I mean as a client.

14 MR. PALMER: I've been in the court for

15 20 years trying to sell this thing. I've been

16 through the 9th Circuit --

17 COMMISSION MEMBER: One case?

18 MR. PALMER: -- the District of Columbia

19 Circuit. I've been up to the Supreme Court in

20 California and I haven't given up. Anyway, you've

21 read my statements, so you know just where I stand. 

22 I've given a specific example of
342

1 judicial crime. I believe that a bankruptcy judge

2 acted illegally and without jurisdiction when he

3 continued to administer a sham bankruptcy and as a

4 result, creditors were swindled out of over $1

5 million. I was one of the people. I appealed to

6 District Judge Marilyn Hall Patel. I complained to

7 the US Attorney, Joseph Russenelli and filed a

8 Section 327C, complaint of judicial misconduct, with

9 the Chief Circuit Judge at that time, James Brown. 

10 The judges and the prosecutor both protected the

11 dishonest judge.

12 For over 20 years I've been engaged in

13 litigation as a result of this dishonest judge's

14 rulings. Every judge who has reviewed the sham

15 bankruptcy has affirmed the void orders of the

16 bankruptcy judge. The members of this Commission,

17 who are also judges, have a duty under the ethical

18 codes to make certain my allegations are

19 investigated by the Department of Justice to assure

20 that dishonest judges are removed.

21 COMMISSION MEMBER: Excuse me. I don't

22 mean to cut you short, but do you have some
343

1 recommendation --

2 MR. PALMER: Yes.

3 COMMISSION MEMBER: -- as to the

4 structure of the courts --

5 MR. PALMER: Yes.

6 COMMISSION MEMBER: -- as to how we

7 relieve that problem?

8 MR. PALMER: Yes. Yes.

9 Clearly, the first structural change to

10 be recommended by this Commission should be the

11 creation of a countervailing judicial authority and

12 the abolishment of judicial immunity. Our judicial

13 system is broken because there is a lack of judicial

14 accountability. Judges at all levels are at little

15 personal risk for any amount of bribery, cronyism,

16 fraud or other malfeasance in office. Thus, most

17 litigation is predetermined. The fated party relies

18 on the judge while the naive party relies on the

19 merit of his case. Dishonest judges do no follow

20 the law and court orders that are not based on merit

21 demand more litigation and appeals to right the

22 wrongs committed by dishonest judges. Thus,
344

1 dishonest judges, by their decisions, create more

2 and more litigation. 

3 I believe a Department of Judicial

4 Administration should be created in the Executive

5 Branch. This agency, managed by non-lawyers, would

6 monitor the courts to assure that all judges are

7 honest, to reduce the need for appellate litigation,

8 and to restore the courts to the people.

9 COMMISSION MEMBER: You know, the

10 founding fathers provided for the very thing that

11 you are talking about in the Constitution of the

12 United States and that is impeachment of dishonest

13 judges. There is a process by which that is

14 accomplished. So, what's wrong with what the

15 founding fathers had to say about it?

16 MR. PALMER: Well, let's look at it

17 carefully. The Congress has delegated to the

18 various judicial counsel and various circuits the

19 right to judge judges. We have peer review. Peer

20 review is absolutely no review whatsoever. You can

21 not complain directly to Congress. You must go

22 through the process. Now when you go through the
345

1 procedure, there was --

2 CHAIRMAN WHITE: How --

3 MR. PALMER: Pardon me?

4 You have to go through the court

5 procedure. You have to make your complaint, Section

6 327C complaint through the chief circuit judge.

7 CHAIRMAN WHITE: You know, I don't think

8 that Richard Nixon was dealt with by the --

9 MR. PALMER: He's a President, sir.

10 CHAIRMAN WHITE: What?

11 MR. PALMER: He's a President. I'm

12 talking about judges. The President operates to

13 exercise oversight of judges through the Department

14 of Justice. The Department of Justice is entwined

15 with the judiciary. We need a separate

16 countervailing authority. My background happens to

17 be political science, economics --

18 COMMISSION MEMBER: Are you saying the

19 Congress won't consider impeachment of a --

20 MR. PALMER: I have been to Congress

21 repeatedly and they will not even answer my letters. 

22 When you're a dishonest judge you're protected by
346

1 the system. I've spoken to lawyers. When they get

2 into a situation where the judge predetermines the

3 case and is committed to one favored party, they

4 don't fight it. They just go on to another case. 

5 The one that is hurt is the litigant, the party to

6 the action. The lawyer goes on to another case and

7 that's the end of it.

8 Now, these judges had a duty to set

9 aside the orders of the bankruptcy judge. He had no

10 jurisdiction, no subject matter jurisdiction, no

11 personal jurisdiction, and he acted in violation of

12 the law. Now, I've written a book called Courts

13 Without Justice. It's been (indiscernible) by a

14 first amendment lawyer, a lawyer who specializes in

15 first amendment practices, and it has been

16 underwritten. So, it has been gone over about 60

17 times, I can tell you. It's right there. 

18 The problem is, we have a lack of

19 judicial accountability. We have shifting integrity

20 of judges. There's a two track system. You may

21 have an affluent party or a large law firm or

22 whatever it may be, but routine cases are not dealt
347

1 with the same way that the cases of high priority or

2 in the media.

3 COMMISSION MEMBER: Has your book been

4 published?

5 MR. PALMER: Yes, sir, 1992.

6 COMMISSION MEMBER: Where?

7 MR. PALMER: I published it myself. The

8 reason I published it myself is that I couldn't get

9 somebody to publish it. There's tremendous

10 censorship in the press and the media. Just

11 speaking to the Chronicle itself, the court reporter

12 one time said "newspapers have to go to court too. 

13 You can criticize lawyers all you want but we can't

14 criticize a judge." Judges are above the law. In

15 order to bring this into some kind of context, we

16 have to do away with judicial immunity. Judges have

17 to be responsible when they do things that are

18 illegal. 

19 This bankruptcy judge got off scott20 free. It was a no asset estate. Creditors got

21 nothing. The people that ran the bankruptcy, the

22 sham bankruptcy, built a 54 unit housing project,
348

1 put up $2 million and sold it for $5 million, got

2 off scott-free. When I went to the various

3 commercial creditors, they refused to even

4 intercede. They said "bankruptcy is corrupt. 

5 Forget it. We're not going to put any money into

6 it. If you want to fight it, do it yourself." And

7 that's what I did. I got a law degree. I properly

8 raised the constitutional issue, a bankruptcy law is

9 unconstitutional. Why should the district judge

10 appoint the bankruptcy judge, then I appeal to the

11 district court. To prevent embarrassment to the

12 judge who had appointed the bankruptcy judge, I am

13 ruled against. And the judge did not have

14 jurisdiction.

15 So then, the circuit court also affirms. 

16 Now we have circuit judges appointing bankruptcy

17 judges. That's denial of due process to anybody who

18 is an opponent of a trustee. The trustee is

19 appointed by the bankruptcy judge. That's an

20 administrative act. In 1794 in United States v.

21 Yale Todd, we had a ruling that judicial functions

22 are confined to judging cases, to judicial actions. 
349

1 Administrative functions are solely within the

2 Executive. That was the first case when an act of

3 Congress was invalidated by the Supreme Court, 1794. 

4 It's a note, in 1851 written by Justice Taney. I

5 put that in my statement so you have the notation.

6 We also know that when Congress

7 abolished -- well, you have my statement. I really

8 don't want to go over the statement. You should be

9 able to ask me some questions and let me respond. I

10 really feel very, very keenly that across this

11 country judges are of shifting integrity. They

12 dispose of routine cases. They adjudicate the cases

13 that are among the powerful, the affluent. So,

14 there's a two track system in this country.

15 I'm really speaking to you most

16 sincerely. I know there's a lot of people that are

17 in the legal reform movement and I have spoken to

18 them and they're just avid about, you know, the

19 judges being corrupt. I try to be sort of tempering

20 because I consider myself to be part of the system. 

21 I was a consultant to the US Senate. I'm the one

22 that investigated the Federal Central Valley Project
350

1 that caused Congress to change the allocation of

2 acreage to 900 acres which was affirmed by the 9th

3 Circuit. That was a perfectly good thing that the

4 9th Circuit did. But on these things where you have

5 individuals, you have a different concept of the

6 kind of disposition of cases than on the higher

7 level cases. My background is in hydrology as you

8 could guess from saying I worked with the US Senate.

9 Yes?

10 CHAIRMAN WHITE: I think your time has

11 run out.

12 MR. PALMER: Fine, that's all right.

13 Did you want to ask any questions

14 further? I just hope that you will --

15 CHAIRMAN WHITE: I don't know what we

16 could say.

17 MR. PALMER: I think here's what you

18 could do. You could require the Department of

19 Justice, the US Attorney, to investigate my charges

20 of bankruptcy fraud and to remove dishonest judges.

21 CHAIRMAN WHITE: I don't think that's

22 within our charge of this --
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1 MR. PALMER: It would keep the 9th

2 Circuit Court of Appeals working better if we had

3 honest judges. Thank you.

4 CHAIRMAN WHITE: Mr. Michael Traynor?

5 MR. TRAYNOR: Justice White, Members of

6 the Commission, Michael Traynor, San Francisco

7 lawyer. I practice with the Cooley-Godwig firm. We

8 have offices in San Francisco and Southern

9 California.

10 My partner, Joseph Russennello and I

11 submitted a written statement. He was a former

12 United States attorney for the Northern District. 

13 Our focus was on two particularly unsatisfactory

14 proposals for splitting the 9th Circuit. First,

15 dividing California between two circuits and second,

16 isolating California from other states. If

17 California were divided between two circuits,

18 conflicts could occur and additional uncertainty

19 unquestionably would occur. Imagine different

20 outcomes in two separate circuits in the Prop 209

21 litigation that challenged the constitutionality of

22 an initiative that prohibited race and gender
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1 preferences. For a statewide university or agency,

2 such preferences would have been upheld in some

3 parts of the state and struck down in others, a

4 result that would destroy any attempt to achieve

5 coherent system-wide planning. Our written

6 statement develops a number of other illustrations.

7 If California can not be divided

8 effectively, should it be isolated in a California

9 only circuit. Doing so would tend to make it more a

10 California court for the parochial outlook and less

11 a federal court with a national outlook.

12 PROFESSOR MEADOR: If Congress were bent

13 on dividing this circuit, what would you recommend

14 to them that they do? How should it be divided if

15 it's going to be divided?

16 MR. TRAYNOR: I don't think there's any

17 satisfactory way to do that, Professor Meador. It

18 gives me a chance to take a minute, if I may, in

19 response to the question that you have raised

20 several times in today's discussion, and to deal

21 with that in the context of a point that Judge

22 Merritt made about harm.
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1 One of the great functions that this

2 Commission could do, faced with the challenging task

3 that it has, is to articulate the harm to the

4 circuits, and particularly the 9th Circuit, that

5 could occur from a split. But let me just use four

6 examples as an illustration of that harm. The

7 misfit might result from a split that would truncate

8 the 9th Circuit into California, Nevada and Arizona. 

9 It would disrupt and dismantle the major innovative

10 work in institutions that the 9th Circuit has

11 created including, for example, case and issue

12 tracking, mediation, the BAP, sharing judges.

13 PROFESSOR MEADOR: I don't understand

14 how that would dismantle any of that. It would

15 function as a smaller territory, yes, but it would

16 still keep going, wouldn't it?

17 MR. TRAYNOR: Professor Meador, you have

18 a system that's working now. It seems to me a

19 substantial burden of persuasion that anybody has in

20 Congress or in this Commission or elsewhere to take

21 a system that's working and say "change is

22 justified." Change in structure, is that going to
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1 produce an improvement in function? Maybe some of

2 these innovations could occur, but they would not

3 occur at the level and with the sophistication that

4 they have already in the 9th Circuit which is

5 dealing with this in a very innovative way.

6 PROFESSOR MEADOR: No, maybe I

7 misunderstood you. I thought you said that if the

8 circuit were reconfigured into those three states,

9 the various good developments you've mentioned would

10 be dismantled.

11 MR. TRAYNOR: Well, they might be

12 dismantled.

13 PROFESSOR MEADOR: I don't understand

14 how they could be dismantled.

15 MR. TRAYNOR: Well, they exist currently

16 in the 9th Circuit as a coherent unit in the 9th

17 Circuit. We'd have to have a whole restructuring. 

18 You'd now have two different circuits trying to deal

19 with these procedures, different judges looking at

20 them with different ways. This proposal would also

21 probably require more judges than would be presently

22 existing in those three states. 
355

1 It would occur -- and particularly

2 importantly, this would occur without the unified

3 support of the judges throughout the circuit, the

4 lawyers as occurred in 1981 or so from the 5th

5 Circuit split, as well with the concurrence of the

6 Department of Justice. We would be shifting from

7 the relatively known institution into one of some

8 dubious predictability and without satisfying any

9 burden of showing that this change would produce

10 some good. 

11 Such an effort would also give renewed

12 hope that powerful politicians who think they can

13 deal with decisions they don't like a deconstructing

14 accord. It would prevent and disable an institution

15 that now speaks with one voice on very important

16 developing issues such as electronic commerce,

17 intellectual property. It's critical in the Pacific

18 rim to have a circuit that speaks with one voice,

19 and it would affect daily practice on such issues as

20 removal, forum selection clauses, 1404(a) transfers

21 and the like.

22 There's no good reason to split the 9th
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1 Circuit and no good way to do so. Given the obvious

2 facts --

3 COMMISSION MEMBER: What is the least

4 unsatisfactory way that Congress might go about

5 dividing the circuit? You say there's no good way,

6 no satisfactory way. Is there a least

7 unsatisfactory way?

8 MR. TRAYNOR: The least unsatisfactory

9 way would be to follow the concept of what is the

10 least drastic alternative. One of the most drastic

11 alternatives is a structural change of any kind. 

12 Before addressing a structural change of any kind,

13 suggestions such as those that have been made here

14 today and elsewhere about the jurisdiction of the

15 federal courts, some specialized areas of cases such

16 as maritime insurance, maritime law, that sort of

17 thing. 

18 But before any structural change is

19 attempted, less drastic measures should be examined,

20 I respectfully submit. I haven't seen a proposal

21 yet that works. I've been involved in this problem

22 since 1972 when as an officer of the Bar Association
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1 of San Francisco, we opposed the split.

2 COMMISSION MEMBER: What about this

3 proposal to have two or three units in the 9th

4 Circuit of seven or eight or nine judges each that

5 would be territorial units with a system of en bank

6 review where any divergence from precedent or

7 serious divergence could be reviewed and corrected,

8 but without dividing the circuit itself?

9 MR. TRAYNOR: This is a kin, I think, to

10 the Smetkoff Proposal. It's a kin to other

11 proposals that have been made in testimony before

12 you. I would react in two ways to that.

13 One, does it have the support within the

14 court itself, the 9th Circuit judges particularly? 

15 Is it supported? Is it an institution? Is it an

16 experiment that works? What's the empirical history

17 of that idea where it has been tested before earlier

18 in the 9th Circuit or in the old 5th Circuit? How,

19 in fact, has it worked? Do the judges support it? 

20 How would they implement it from concept? As we all

21 know, taking concept down to hard-working pragmatic

22 alternatives, how would it work? If the judges
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1 themselves looked at those alternatives, that would

2 be one thing.

3 The second part of my response is, and

4 probably the most important part of it, any outside

5 tinkering with the 9th Circuit, particularly from

6 Congress, any recommendations for tinkering is, in

7 my view, only going to lead to more efforts to take

8 political looks at the structure of our appellate

9 courts. This Commission is here as a result of a

10 six month battle that occurred over a rider to an

11 appropriations bill that would have divided the 9th

12 Circuit without a hearing.

13 COMMISSION MEMBER: Mr. Traynor, excuse

14 me, but let's assume we adopt your position, and I

15 appreciate the passion with which you endorse it. 

16 That is that the circuit should not be split, and if

17 it's split there's no good way to split it. That's

18 the second reason not to split it. Let's assume

19 that this Commission adopts those recommendations

20 and Congress is hell bent on splitting the circuit

21 nonetheless, which is within their constitutional

22 authority.
359

1 Don't you think we would be better off

2 or the circuit, you practitioners, proposing the

3 least offensive plan for a split if they are of the

4 mind that it's going to be split regardless of what

5 we say or you say? Shouldn't we suggest sort of a

6 (indiscernible) approach, I guess, the best possible

7 solution?

8 MR. TRAYNOR: There is, so far as I

9 know, no good solution; no solution that works. It

10 has been examined for the last 25 or 30 years.

11 What really is needed is more judges to

12 fill the vacancies so that this court can get on

13 with its job and do its job without the political

14 strife that these proposals have entailed. If there

15 was one thing this Commission could do that would be

16 of great constructive benefit would be to pick up on

17 the idea of harm and say this kind of tinkering,

18 this kind of structural decision making causes harm.

19 Thank you.

20 CHAIRMAN WHITE: Thank you. Thank you

21 very much.

22 Congratulations.
360

1 MR. WAGSTAFFE: Thank you. Thank you,

2 Your Honor. I am James Wagstaffe and I am the loser

3 of today's lottery, as is evident.

4 I am here to address a very narrow

5 point, and briefly, the idea that there is purported

6 inconsistency of decision within the circuit and

7 that the circuit's decisions are out of sync with

8 other circuits. Therefore, I am here today, as some

9 of you who know me, in one capacity as a civil

10 procedure nerd, no other capacity. Because in that

11 capacity as a civil procedure nerd, co-authoring a

12 national book on civil procedure with Justice

13 Swarzer -- that was a Freudian slip -- Judge Swarzer

14 and Judge Tishema. 

15 I engage in the enviable position of

16 reading the West Federal Digest, cover-to-cover each

17 year on all decisions on civil procedure and federal

18 practice. In that capacity, I have had not

19 anecdotal evidence -- which I think supports those

20 who criticize the size of the circuit as being the

21 cause of the supposed problem of being out of step

22 with other circuits and being out of step within
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1 itself -- and look at those actual decisions. Each

2 year when we update the book, we look specifically

3 for intra-circuit inconsistencies and for inter4 circuit conflicts.

5 In addition, I have the opportunity,

6 pleasantly, each year to address most of the

7 circuits in their annual workshops. I usually get

8 them at 8:00 in the morning, not at the 5:15 hour. 

9 They figure that jurisdiction and procedure are best

10 addressed at 8:00 in the morning. In that capacity

11 I, therefore, have had the opportunity to study

12 annually, cases in each circuit and see. 

13 Interestingly, and my view ironically, my experience

14 has been that in the smaller circuits is where you

15 have the greatest intra-circuit conflict. I don't

16 know if I have an explanation for that other than

17 maybe collegiality breeds contempt. I don't know if

18 that's true, but I've noticed that is the case. Or

19 maybe it's because the larger the circuit, the less

20 people care. I don't know. 

21 But I do know that in studying this, the

22 9th Circuit is remarkably free from intra-circuit
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1 conflict --

2 COMMISSION MEMBER: There's more intra3 circuit conflict in the 1st Circuit, which is the

4 smallest circuit -- there's six judges -- than there

5 is in the larger circuits, you're saying?

6 MR. WAGSTAFFE: Well, I can only say in

7 the field I've studied. It's only the field I've

8 studied which is federal practice and in particular,

9 federal jurisdiction and procedure.

10 CHAIRMAN WHITE: Well, you've studied

11 every circuit court?

12 MR. WAGSTAFFE: I have, Your Honor,

13 because I speak to each circuit workshop virtually

14 on an annual basis.

15 CHAIRMAN WHITE: Oh, I thought you had

16 said you had read this (indiscernible) in every

17 circuit.

18 MR. WAGSTAFFE: Well, no, I'm actually

19 saying that if there's a problem, the 9th Circuit is

20 certainly no different than others and therefore,

21 that I think rejects the notion that size alone

22 creates conflict. Second of all, I've noticed --
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1 and I can only say this by having given the

2 presentations -- there is intra-circuit conflicts of

3 some kind on some issues. There's no question about

4 that. They don't even know how to define the

5 issues, but I've not noticed in the 9th Circuit at

6 all.

7 COMMISSION MEMBER: Let me clarify what

8 sources -- are you saying that you read annually the

9 courts of appeals' opinions on procedural questions

10 in every circuit?

11 MR. WAGSTAFFE: I do, sir.

12 COMMISSION MEMBER: Everything in every

13 court of appeals on procedure (indiscernible).

14 MR. WAGSTAFFE: Every procedural opinion

15 that appears to be something other than a repetitive

16 case each year.

17 COMMISSION MEMBER: And you are finding

18 some intra-circuit conflicts?

19 MR. WAGSTAFFE: I am finding some intra20 circuit conflicts, yes.

21 COMMISSION MEMBER: On procedural

22 questions?
364

1 COMMISSION MEMBER: In some circuits?

2 MR. WAGSTAFFE: Yes. I suppose it

3 depends on how you define intra-circuit conflicts. 

4 Things that I would perceive to be inconsistent

5 opinions from one to the other. I think I see that. 

6 In addition to being a practicing lawyer, I'm a

7 professor. So, forgive me for the ability to be a

8 provocateur. But I do see within circuits, opinions

9 that seem to be somewhat at odds on issues of

10 jurisdiction. Preemption is a good example. 

11 Preemption is an area where I think within circuits,

12 there can be some differences of opinion and they

13 rationalize them.

14 But in any event, in this capacity, I

15 have seen at the 9th Circuit -- and I have

16 illustrations in the statement that's being provided

17 to you. But in diversity jurisdiction, the 9th

18 Circuit, I think, has established consistent rules. 

19 They are not out of step with other circuits in

20 arising under jurisdiction, in the questions of

21 federal preemption which is very complex, in the

22 ERISA preemption and LMRA preemption. I do not see
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1 within the 9th Circuit these chards of decision

2 making.

3 CHAIRMAN WHITE: I can see that you

4 might call yourself a nerd if you study the ERISA.

5 COMMISSION MEMBER: Especially ERISA

6 preemption.

7 MR. WAGSTAFFE: You're absolutely right,

8 Your Honor.

9 They give me an hour-and-a-half on ERISA

10 preemption and it's a fascinating hour. My wife

11 says with this book we wrote that whenever she has

12 trouble sleeping, she turns to the chapter on ERISA

13 preemption and she says she can not get from the top

14 of the page to the bottom of the page, and it is

15 better than drugs.

16 CHAIRMAN WHITE: Where do you teach?

17 MR. WAGSTAFFE: I teach at Hastings

18 College of the Law here in San Francisco.

19 CHAIRMAN WHITE: You aren't old enough

20 for that.

21 MR. WAGSTAFFE: Thank you, Your Honor. 

22 I agree with you. Yes, that's absolutely correct.
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1 So, let me say this. I think this holds

2 true in person jurisdiction, summary judgment venue,

3 these other areas we talked about. 

4 Let me end by saying if it's not broke,

5 I don't think it needs to be fixed and that's how I

6 view this. Let me completely end by saying I've

7 also been teaching speech at Stanford University for

8 the last 22 years, public speaking.

9 CHAIRMAN WHITE: Oh, public speaking --

10 MR. WAGSTAFFE: Public speaking.

11 CHAIRMAN WHITE: At Stanford?

12 MR. WAGSTAFFE: At Stanford.

13 I want to end with two things. One is,

14 the average attention span of an adult is seven

15 minutes. And I appreciate that you've been here

16 all day and you're paying attention to me. The

17 other is the most important rule of public speaking

18 that all public speakers should follow. It is to

19 end before they expect you to end. That's all I

20 have to say.

21 Thank you.

22 (Applause.)
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1 CHAIRMAN WHITE: The show is over. The

2 show is over. Thank you very much.

3 (Whereupon, the hearing was concluded.)

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