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COMMISSION ON STRUCTURAL ALTERNATIVES

FOR THE FEDERAL COURTS OF APPEALS

+ + + + +

SEATTLE, WASHINGTON

+ + + + +

PUBLIC HEARING

+ + + + +

WEDNESDAY,

MAY 27, 1998

This transcript produced from tapes provided by

the Administrative Office of the United States Courts.
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I-N-D-E-X

Page:

Opening and Welcome

 Chairman Justice Byron R. White . . . . . . . 4

TESTIMONY

 Senator Slade Gorton . . . . . . . . . . . . . 7

 Sanford Svetcov . . . . . . . . . . . . . . . 17

 President, American Academy of Appellate

 Lawyers, San Francisco

 Don Bivens . . . . . . . . . . . . . . . . . 28

 President, State Bar of Arizona, Phoenix

 Judge Sidney R. Thomas . . . . . . . . . . . 32

 U.S. Court of Appeals, 9th Cir., Billings

 Gary Locke, Governor of Washington . . . . . 48

 Christine O. Gregoire . . . . . . . . . . . . 54

 Attorney General of Washington

 Alan Lance, Attorney General of Idaho . . . . 69

 Barbara Ritchie, for Bruce Botehlo . . . . . 73

 Attorney General of Alaska

 Gerald Smith, Attorney, Phoenix . . . . . . . 86

 Rex Butler, Attorney, Anchorage . . . . . . . 98

 Judge Robert C. Broomfield . . . . . . . . . 104

 U.S. District Court, D., Arizona

 Judge Alfred T. Goodwin . . . . . . . . . . 116

 U.S. Court of Appeals, 9th Cir., Pasadena
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I-N-D-E-X (Continued)

 Judge Otto Skopil, Jr. . . . . . . . . . . . 122

 U.S. Court of Appeals, 9th Cir., Portland

 Judge Robert Boochever . . . . . . . . . . . 145

 U.S. Court of Appeals, 9th Cir., Pasadena

 Judge John Sheehy, (Retired) . . . . . . . . 155

 Montana Supreme Court, Helena

 Judge H. Russell Holland . . . . . . . . . . 172

 U.S. District Court, D. Alaska

 Judge James A. Redden . . . . . . . . . . . 180

 U.S. District Court, D. Oregon

 Judge Fred Van Sickle . . . . . . . . . . . 186

 U.S. District Court, E.D. Washington

 Judge Barbara Jacobs Rothstein . . . . . . . 194

 U.S. District Court, W.D. Washington

 Judge William L. Dwyer . . . . . . . . . . . 198

 U.S. District Court, W.D. Washington

 Todd True . . . . . . . . . . . . . . . . . 207

 Earthjustice Defense Fund, Seattle 

 Thomas W. Hillier, II, Federal Public

 Defender, W.D. Washington . . . . . . . . 216

 Howard M. Goodfriend, Attorney, Seattle . . 226

 Mike Brown . . . . . . . . . . . . . . . . . 232

 Attorney, Springfield, MO

 Eric Redman, Attorney, Seattle . . . . . . . 235

 Adjournment . . . . . . . . . . . . . . . . 248
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1 P-R-O-C-E-E-D-I-N-G-S

2 (9:00 a.m.)

3 CHAIRMAN WHITE: (I am the) Chairman of

4 this Commission, which was created by Congress to

5 report on certain aspects of the Federal Courts of

6 Appeals. The other Commissioner personally present is

7 Bill Browning, a former Chief Judge in Arizona. And

8 he is a very experienced District Court major.

9 We are fortunate to have a Circuit Judge

10 Pamela Ann Rymer to listen in on this hearing by a --

11 from her office via telephone hook-up. Good morning,

12 Pamela Ann.

13 JUDGE RYMER: Good morning, Judge White.

14 Thank you. I appreciate the opportunity of

15 participating electronically. 

16 CHAIRMAN WHITE: All right. And the most

17 important man in the room is our executive director,

18 Dan Meador, a famous professor of law at the

19 University of Virginia. 

20 And we do have some representatives of

21 both the administrative office and the federal

22 judicial center. Otherwise we would be without food,
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1 or hotels, (Laughter) or writing material, or anything

2 else, or the FJO says that if you want to know

3 something, ask us. 

4 Congress created the Commission late last

5 year, and charged it with studying the structure and

6 alignment of the Federal Appellate system, with

7 particular reference to the Ninth Circuit. In

8 December 1998, the Commission is to report to the

9 President and Congress any recommendations for changes

10 in the Circuit boundaries or structure consistent with

11 fair and due process. 

12 The Commission is interested in obtaining

13 views on whether each Federal Appellate Court renders

14 decisions that are reasonably timely, are consistent

15 among the litigants appearing before it, show due

16 consideration for nationwide uniformity in their

17 interpretations of Federal law, and are reached

18 through processes that afford appeals adequate

19 deliberative attention as judges. 

20 The Commission has held four public

21 hearings across the nation. And this hearing, and the

22 following hearing in San Francisco will conclude those
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1 hearings. Characteristically, interested persons are

2 asked to submit a statement in writing of their views.

3 The Commission has received an

4 extraordinarily large number of requests to testify at

5 this one-day public hearing. In order to afford an

6 opportunity for all interested persons to testify, it

7 has become necessary to organize witnesses into

8 panels, and to adhere to a rather tight time schedule.

9 If you want to know what a tight schedule

10 is, ask your Senator from -- he knows all about the

11 Supreme Court. Since the Commission members will have

12 copies of your statements which we will study

13 carefully, you need not plan to read them, but to

14 summarize your essential points within six to seven

15 minutes, with additional questions or discussion with

16 Commission members. 

17 The time keeper is sitting right there,

18 and so you can't fail to see him. And we will now

19 start the testimony. And Senator Slade Gorton will

20 start first. And Senator, you and I are not

21 strangers. 

22 You argued fourteen cases in the Supreme
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1 Court as a member of the Attorney General's staff, or

2 as Attorney General. And I was with you seven to

3 three, but the Court wasn't. (Laughter.) But I

4 think you broke even. I think -- but I was also

5 against you once. I think it was with some oil

6 company -- some oil company case. But anyway, you

7 look exactly like you did years ago at the podium, and

8 speaking well. You were a good Attorney General.

9 SENATOR GORTON: Justice White, I thank

10 you for those compliments. And this does remind me of

11 the most interesting aspect of my time as Attorney

12 General. You don't know it, but in not one of those

13 cases I argued it totally and completely to you, as it

14 seemed to me. 

15 CHAIRMAN WHITE: I could tell it, too.

16 (Laughter.)

17 SENATOR GORTON: You were absolutely key,

18 and I was persuasive enough so that you wrote the

19 opinion of the Court on my side on that particular

20 case. You were also, as I remember the toughest

21 questioner of the Members of the Supreme Court, or at

22 least so it seemed to me. 
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1 CHAIRMAN WHITE: And it never bothered

2 you, Senator. 

3 SENATOR GORTON: I hope that I will not

4 have such a difficult time today. You do have --

5 CHAIRMAN WHITE: I don't -- 

6 SENATOR GORTON: No comment on that.

7 (Laughter.)

8 CHAIRMAN WHITE: Yeah. All right. 

9 SENATOR GORTON: You do have my written

10 statement. 

11 CHAIRMAN WHITE: Yes, sir. 

12 SENATOR GORTON: And I will simply

13 summarize in three points -- first, the Ninth Circuit

14 should be divided, because it is simply too large. It

15 is now double the size that the -- Commission

16 recommended a quarter of a century ago as being as

17 large as a circuit court should be. It hears more

18 appeals than at least four of the circuits combined.

19 It is physically and extremely large court. 

20 More significantly to me, however, is the

21 lack of collegiality on a court with 28 authorized

22 judges. And therefore, simply, by simple arithmetic,
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1 an individual judge in a three judge panel has 3,276

2 possible combinations of judges. And therefore, even

3 a young man or woman appointed to the court is

4 unlikely to ever serve twice with exactly the same

5 three judge panel. 

6 You know, my friend and Ninth Circuit

7 Judge Bill O’Scannlain, on the Ninth Circuit, from

8 Portland, has spoken and written to you eloquently,

9 you know, on that subject of collegiality. One I feel

10 to be the most important of all the considerations in

11 connection with this proposed division. 

12 I had, or my office at least, had even

13 more experience, of course, with the Ninth Circuit

14 than we did with the Supreme Court, while I was

15 attorney general for the state. I argued only a

16 relatively small number of cases before the Ninth

17 Circuit, one of the privileges of my job -- the

18 arguments in the Supreme Court. 

19 But my assistants felt that lack of

20 collegiality. They never saw the same people twice,

21 or rarely did so, you know, as I did you and your

22 colleagues on the Supreme Court. 
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1 To me the more difficult question for you

2 to decide is, assuming that you agree that the Ninth

3 Circuit should be divided, the question is how should

4 it be divided? In what respect should it be divided?

5 I must admit to a parochial prejudice. 

6 I am primarily interested in a circuit

7 court of appeals in the Pacific Northwest, with the

8 inclusion of Hawaii, Guam, and the Trust Territories,

9 each of whom made that choice last year, when the

10 Senate passed a division of the Ninth Circuit. 

11 I much prefer the Northwest, plus Hawaii,

12 Guam, and the Trust Territories, to the proposal that

13 was passed by the Senate last year which, as you know,

14 had a non-contiguous circuit. It had it because the

15 Senators from Arizona felt as anxious for a divorce

16 from California as I did, you know, on behalf of the

17 State of Washington. 

18 But I don't think that an ideal division.

19 I believe an ideal division would divide the Ninth

20 Circuit into three circuits. And would therefore, you

21 know, solve the problem of size and collegiality for

22 an extended period of time. 
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1 But whether that would involve dividing

2 California, Northern California with Nevada, Southern

3 California with Arizona, whether it would involve

4 putting Arizona in an entirely different circuit, and

5 leaving a circuit with California and Nevada, I must

6 confess that I'm not certain as to which of those

7 choices is best. 

8 I do think, as I say, that probably a

9 division into three is preferable. And obviously

10 here, with my own experience on the Court, and as a

11 Senator from the State of Washington, to plead

12 primarily, at least, for a circuit court of the four

13 contiguous states in the Northwest, plus Alaska and

14 the other Pacific Ocean states and territories of the

15 United States. 

16 CHAIRMAN WHITE: I take it that you would

17 accept splitting the State of California, if that's as

18 well as you can do? 

19 SENATOR GORTON: Yes. I would. You know,

20 California, of course, is so much larger now in

21 population than the next largest state, New York, that

22 it might well be appropriate in dividing California
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1 into north and south. 

2 And you know, I guess a possible

3 combination, if you wanted to divide it only into two,

4 would be to have northern California with the Pacific

5 Northwest states. I certainly don't regard that as

6 ideal, but I do regard it as preferable.

7 JUDGE RYMER: Senator, this is Pam Rymer.

8 One of the arguments in support of leaving the circuit

9 as it is, is that there is a commercial commonality

10 between the states, along -- and among the states

11 along the coast, that it is important to protect by a

12 common body of law, particularly in areas such as

13 maritime and intellectual property. 

14 Do your constituents have a view on that

15 point? 

16 SENATOR GORTON: Well, I guess many of my

17 constituents would have to speak for themselves, you

18 know, on that subject. But I note that that -- that

19 a division of, say, New York and Massachusetts and

20 Pennsylvania into three separate circuits on the East

21 Coast does not seem to have inhibited commonality and

22 business interests that are perhaps more frequent and
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1 closer than those of Washington and California. And

2 how many circuits, I guess we may have five circuits

3 along the Atlantic, without it harming maritime --

4 consistency in maritime law. 

5 CHAIRMAN WHITE: Well, you would have to

6 count the number of maritime cases that the Supreme

7 Court had before you could say that, because all of

8 those states didn't decide those cases the same. 

9 SENATOR GORTON: That's true. And you

10 would know far better than I the burden of maritime in

11 the Supreme Court. But they're as likely to take

12 place between Pacific and Atlantic as they are -- down

13 the Pacific coast. 

14 CHAIRMAN WHITE: And what is -- how do you

15 define collegiality? 

16 SENATOR GORTON: I would define it as the

17 intimate, you know, personal knowledge and

18 relationships among members of any organization. A

19 court or any other organization, you know, a degree --

20 a relationship that is more than a relationship by

21 mail, and FAX, and E-mail. 

22 CHAIRMAN WHITE: But what -- what does
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1 that do with the judge's output? 

2 SENATOR GORTON: You, Justice White, are

3 better able to answer that question than I. But I

4 know, for example, in my own position, the fact that

5 I am together with a relatively small number of

6 members of committees and sub-committees constantly,

7 give me, and I think them, an understanding that is of

8 great assistance, and greatly facilitates our reaching

9 decisions. 

10 Now, at one level, of course, you know,

11 the law is an abstraction off in the sky somewhere in

12 many of the textbooks. But I suspect that the law is

13 greatly influenced by the relationships between the

14 judges who actually state it, who sit on panels like

15 this panel here. 

16 And an intimate knowledge of the strengths

17 and weaknesses, and foibles and attitudes of others

18 arguably facilitates not perhaps so much the substance

19 of the law in many cases, as it does perhaps the

20 efficiency with which judgments are rendered. 

21 CHAIRMAN WHITE: Senator, has there been

22 any organized effort at the practicing bar in this
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1 town -- ? 

2 SENATOR GORTON: Yeah. 

3 CHAIRMAN WHITE: -- to make a decision? 

4 SENATOR GORTON: Again, I think you will

5 have other witnesses here who can speak more for the

6 organized bar than I can. When I was attorney

7 general, you know, this was some time ago, and was

8 first interested in this subject, the governors of the

9 Washington State Bar Association voted by a narrow

10 margin in favor of a division. In fact, I think at

11 the time the president of the state bar was -- I was

12 presidential nominee for the Ninth Circuit. 

13 But I think it's probably safe to say the

14 bar here is divided on the issue. Many are happy, you

15 know, with the situation in which they find themselves

16 at the present time, you know? They are comfortable

17 with the status quo. Others agree with me that it

18 would be appropriate to have a division, you know,

19 largely for the reasons that I've outlined to you

20 already. 

21 CHAIRMAN WHITE: All right. 

22 COMMISSIONER: Senator, one of the
16

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1 comments we've heard, and I'm sure you have heard, is

2 that the Northwest is uncomfortable having judges who

3 are not from the Northwest participating in, or making

4 decisions that are of great importance and concern to

5 this area of the country. 

6 Is that a concern of yours, as well as

7 size on the number of panels? 

8 SENATOR GORTON: It is, though I think it

9 is subsidiary to the three rationales that I've

10 outlined at this point. I'd rather have judges from

11 Washington judging Washington State law, than to go to

12 the Supreme Court of Oregon, and ask the Supreme Court

13 of Oregon to make such judgments. 

14 And it is, I think, always at least a

15 modest advantage to have a mental picture of the

16 geography and the attitudes of the area in which one

17 is a judge. But I think that rationale can be greatly

18 over-stated. It's not the most important reason. 

19 CHAIRMAN WHITE: Thank you. And you're --

20 by the way, you're hitting two or three more judges

21 from these states, aren't you? 

22 SENATOR GORTON: Oh, yes, Mr. Justice
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1 White. I am quite active in that pursuit. 

2 CHAIRMAN WHITE: I read all about it.

3 (Laughter.) All right. Thank you, Senator. 

4 SENATOR GORTON: Thank you very much for

5 your attention. And I may tell you, Mr. Justice

6 White, how much I enjoyed our earlier associations

7 with one another. And it's been a pleasure --

8 (Unclear.)

9 CHAIRMAN WHITE: We will now hear from

10 Sanford Svetcov, president of the American Academy of

11 Appellate Lawyers. You practice in San Francisco? 

12 MR. SVETCOV: I do, Your Honor. 

13 CHAIRMAN WHITE: Yes. All right. 

14 MR. SVETCOV: And I happen to have

15 fourteen appearances before you, Justice White, but

16 you have a pint of my blood going back to 1977, when

17 I appeared before you. 

18 CHAIRMAN WHITE: Oh, yes, but you've

19 recovered. (Laughter.) 

20 MR. SVETCOV: I have. But I had help from

21 Justice Stewart. You asked me a question midway

22 through the argument, and Justice Stewart leaned over
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1 and said, "Son, you don't have to answer that

2 question. Justice White has gone too far."

3 (Laughter.) 

4 CHAIRMAN WHITE: That's what he thought.

5 (Laughter.) 

6 MR. SVETCOV: I think you wrote the

7 majority opinion in my favor, an eight-to-one

8 decision. So, I appreciate the -- 

9 CHAIRMAN WHITE: All right. What was the

10 case? 

11 MR. SVETCOV: Ropudier v. Navarette. 

12 CHAIRMAN WHITE: Oh, yes. 

13 MR. SVETCOV: It was a good faith case.

14 It wasn't a civil rights case. Although I'm president

15 of the American Academy of Appellate Lawyers, I do not

16 come here to speak on behalf of the Academy. We have

17 members all over the country, and we did not have time

18 to reach a consensus. And I don't think we would

19 have.

20 I really, I speak for myself. I've been

21 practicing in the Ninth Circuit for 33 years. They

22 have lots of pints of my blood. I was in the state
19

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1 attorney general's office. I was chief assistant

2 United States Attorney, chief of the strike force,

3 chief of the appellate section of the U.S. Attorney's

4 Office, and I've been in private practice, practicing

5 before the Ninth Circuit for the past ten years.

6 I come before you with just a suggestion.

7 It's kind of like a red light in Rome, if you've ever

8 travelled in Rome. A red light in Rome is just a

9 suggestion to the drivers of the car. (Laughter.)

10 You've heard lots of testimony from

11 Senator Gorton and others, and Judge O’Scannlain,

12 about splitting the Ninth Circuit, and you're going to

13 hear lots of testimony about keeping it status quo. 

14 I don't think any of the suggestions for

15 splitting the circuit are workable, because I don't

16 know of a viable way to split California. And I don't

17 think Judge O’Scannlain's approach is workable. 

18 Instead, I've attempted to come up with a

19 measure that would be somewhere in between those two

20 approaches. And that is to try to operate the circuit

21 in two discrete divisions, north and south, dividing

22 the case load approximately in half if possible, by
20

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1 having the five northwest states, the northern and

2 eastern districts of California in the north, Nevada,

3 Arizona, the southern district, and the central

4 district in the south, and figuring out whether

5 Hawaii, Guam, and the Mariana's should go north or

6 south, to come as close to a 50-50 split of the

7 caseload as possible. 

8 And I thought of that using the Fifth

9 Circuit's approach of having a complete split. Judges

10 from the north only on northern cases, and judges from

11 the south on southern cases. But I think that would

12 detract from the consistency, and collegiality, and

13 contact between the judges that you need in a single

14 circuit. 

15 So, my proposal is that for cases that

16 arise in the north, two judges from the north, and one

17 from the south. And vice versa for southern cases. 

18 CHAIRMAN WHITE: Well, what would be the

19 split? 

20 MR. SVETCOV: Excuse me? 

21 CHAIRMAN WHITE: What would be the split?

22 What would make up the -- ?
21

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1 MR. SVETCOV: The northern division would

2 be the five northwestern states, Oregon, Washington,

3 Alaska, Montana, Idaho, the northern and eastern

4 districts of California. 

5 CHAIRMAN WHITE: Uh-huh? 

6 MR. SVETCOV: And the southern division

7 would be Arizona, Nevada, the central district, and

8 the southern districts of California. And I don't

9 know how the population goes these days, whether

10 Hawaii, Guam and the Mariana's would tip it one way or

11 the other, but put those in whichever north or south

12 would come closest to a 50-50 split. 

13 CHAIRMAN WHITE: Now, what are the

14 advantages that -- ? 

15 MR. SVETCOV: Of this approach? 

16 CHAIRMAN WHITE: I'm not sure that what I

17 read in your statement that I understand. 

18 MR. SVETCOV: Okay. It would attempt to

19 address some of the concerns about having judges from

20 the region decide cases arising from the region, and

21 address the ancillary concern that there is California

22 dominance in too many of these cases. It would serve
22

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1 to some degree to reduce that. It wouldn't eliminate

2 that concern, but it would address it in some way.

3 CHAIRMAN WHITE: I understand that. 

4 MR. SVETCOV: It would also attempt to

5 reduce some of the flying time that is required for

6 judges, by having, if a cases arises in the north,

7 predominantly heard by judges from the north, it would

8 reduce somewhat, but not entirely, the flying time. 

9 CHAIRMAN WHITE: But so would the rest of

10 --

11 MR. SVETCOV: So would a split. 

12 CHAIRMAN WHITE: Yeah. 

13 MR. SVETCOV: Yes. But the problem with

14 a split, and the reason I think that it's -- that

15 Judge O’Scannlain's split doesn't work is, it would

16 mean two different circuits would be decided, both

17 state and federal law for California. 

18 CHAIRMAN WHITE: So would yours. 

19 MR. SVETCOV: Yes. But it would be within

20 a -- 

21 CHAIRMAN WHITE: So would yours. 

22 MR. SVETCOV: Oh, no. No. It would be
23

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1 one circuit, two divisions in one circuit, judge. 

2 CHAIRMAN WHITE: Well, I know. But there

3 would be two parts of California in both divisions. 

4 MR. SVETCOV: That is correct. 

5 CHAIRMAN WHITE: Well, just a minute.

6 Just a minute. Here is a federal question that is

7 before one of the divisions, and it decides, and the

8 other division decides it differently? 

9 MR. SVETCOV: Well, it could not. Because

10 the law of the circuit is that once a panel decides a

11 case, it is the law of the circuit. 

12 CHAIRMAN WHITE: You didn't say that. 

13 MR. SVETCOV: Pardon? 

14 CHAIRMAN WHITE: You didn't say that. 

15 MR. SVETCOV: Well, you know, I keep a few

16 tricks in my pocket, judge, in case of curve-ball

17 questions, judge -- 

18 CHAIRMAN WHITE: That's not a curve ball

19 question. 

20 MR. SVETCOV: But that is the law of the

21 circuit. Once a panel in the Ninth Circuit decides a

22 point of law, that is the law of the circuit. And
24

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1 remember, judge, there would be a judge from the south

2 on that panel. It would not be an exclusively

3 northern panel. 

4 CHAIRMAN WHITE: So, what -- let's assume

5 that is there any way to correct a -- 

6 MR. SVETCOV: A split? 

7 CHAIRMAN WHITE: No. No. Is there any

8 way to correct what everybody says is a wrong decision

9 by the first division that -- 

10 MR. SVETCOV: Absolutely. 

11 CHAIRMAN WHITE: What is it? 

12 MR. SVETCOV: En banc review. 

13 CHAIRMAN WHITE: How do you do that? 

14 MR. SVETCOV: At present we have a limited

15 en banc court drawn by lot from the entire circuit. 

16 CHAIRMAN WHITE: So, you don't mind this

17 limited en banc -- ?

18 MR. SVETCOV: I do not. I would modify it

19 slightly, if they're going to operating in two

20 divisions, to have five judges from each division

21 drawn for the en banc, instead of having eleven drawn

22 at large. 
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1 CHAIRMAN WHITE: But you don't mind that?

2 MR. SVETCOV: No. I think that seems to

3 be working well. Probably, it ought to be invoked

4 more often -- 

5 CHAIRMAN WHITE: And how many judges would

6 there be in each division? 

7 MR. SVETCOV: My proposal contemplates

8 than an effort be made to divide the case load in

9 half, and the number of judges in have. So, there

10 would be 14 judges in each division of the present

11 configuration of 28. 

12 JUDGE BROWNING: Let me ask you one

13 question, Mr. Svetcov, if I may. Your pairing of

14 Southern California with Arizona and Nevada, Arizona

15 is the second largest contributor to the workload of

16 this circuit. 

17 Wouldn't you be overloading that half of

18 the circuit? And when you also consider the

19 demographics of growth, wouldn't that be something

20 that would have to be dealt with ten, fifteen years

21 down the road as another overloaded circuit? 

22 MR. SVETCOV: Judge Browning, that may
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1 well be. And I am not wedded precisely to the

2 configuration. I think that the Commission ought to

3 look at that. And I just didn't have the time or the

4 resources to do that. 

5 But if there's a better configuration,

6 north and south, or even a three way configuration of

7 dividing -- I think you're looking for a solution of

8 how to deal with a large circuit's operations. And

9 one of those suggestions is to divide it into

10 divisions for operational purposes. And whether it's

11 two or three, or how the two are divided, I think an

12 effort should be made to find the best balance. 

13 CHAIRMAN WHITE: Let me ask that question

14 another way. Have you given any consideration, even

15 without empirical evidence, to the growth patterns of

16 the western United States, to the Ninth Circuit, and

17 what we're going to be looking at, or the nation's

18 going to be looking at in, say, 30 or 50 - 60 years,

19 when one of us are still here? 

20 MR. SVETCOV: Well, only in this sense,

21 Judge Browning, we have 28 judges now. The Court has

22 -- at four, eight, six or eight, or ten more judges
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1 already, that would bring the Court to 38. And you

2 could envision having it to 45 or 50 at some point. 

3 And yes, in that sense, you do have to

4 look at growth patterns, and what are we going to do

5 with a circuit of 50 judges? I'm afraid that I'm not

6 really prepared to answer that. I think future

7 generations are going to have to address that. 

8 In a sense, your work is a kind of an

9 exercise in creative delay. Of trying to address a

10 particular situation now with all of these

11 possibilities in the future, in terms of case growth

12 and demographics. I mean, let's face it, the case

13 load in the Federal Circuits has tripled, but the

14 number of judges hasn't tripled. 

15 We don't have enough Article Three judges

16 deciding our cases. We have staff attorneys doing it.

17 That's not the way it should be. We need more judges.

18 CHAIRMAN WHITE: Thank you. 

19 MR. SVETCOV: Thank you. 

20 CHAIRMAN WHITE: Mr. Bivens, I broke a

21 rule that we just passed before we went to the -- we

22 weren't supposed to question him until all of you at
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1 that table had talked. So, we will let you obey that

2 rule. 

3 MR. BIVENS: (Laughs.) Okay, Your Honor.

4 I do come today as the president-elect of the State

5 Bar of Arizona. I take office as president next month

6 at our convention in Tucson. 

7 The State Bar of Arizona has over 14,000

8 active members. And from our perspective, it's those

9 lawyers, on behalf of their clients, who have the best

10 perspective in our state on the use of the Ninth

11 Circuit, and its performance. 

12 I would point out that from Arizona's

13 perspective, we are the second largest contributor to

14 the case load. And as Judge Browning noted, we are

15 one of the areas of the country that has been

16 enjoying, and looks to continue to enjoy, explosive

17 growth over the next several decades. 

18 And we worry about that, in terms of

19 decisions to be made about the configuration of the

20 Ninth Circuit, not just today, but in 2010, and 2020,

21 and how that would affect Arizona. 

22 The opinions that I have provided you in
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1 my written materials, and then I'll try to summarize

2 today, I will tell you were the product of a unanimous

3 vote by the board of governors of the State Bar of

4 Arizona. That in itself is relatively rare. We are

5 an elected body that tries to be representative of all

6 of the geographic areas within the state. 

7 The Bar considers Arizona to be well

8 served by the Ninth Circuit in its existing

9 configuration. We enjoy the broad precedent and the

10 numbers, literally, of aces on which to draw for a

11 precedent. The en banc review functions well. From

12 our perspective, the administration functions well. 

13 Our only concern is the gaping judicial

14 vacancies that have been allowed to persist in the

15 Ninth Circuit for several years. From the Bar's

16 perspective, the chief result of those vacancies has

17 been the backlog in getting civil cases to oral

18 argument. Once cases get to oral argument, they move

19 relatively quickly. But there is a backlog in getting

20 civil cases to oral argument. 

21 And again, as we look at it, that's a

22 product of having 18 judges last year trying to do the
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1 work of 28, but I understand now we're up to about 21.

2 That's still not 28. And we think that before we try

3 to solve problems that may be perceived to exist in

4 the Ninth Circuit, we ought to first see if filling

5 those 28 vacancies would solve those problems. 

6 From Arizona's perspective, workload is

7 going to continue to increase as population continues

8 to increase. And a solution to that problem is not to

9 divide the judges into the workload, but to apply more

10 resources to that workload. 

11 And we would recommend that by achieve

12 continuities of scale, and investing money in

13 technology and communications, as we do in every other

14 aspect of America, from business and government, that

15 makes much more sense in terms of addressing growth

16 than dividing the workload. 

17 From a fiscal perspective, the Bar in

18 Arizona sees no need to construct new port facilities,

19 or invest in new port facilities, when we have ample

20 and comparatively new facilities that exist today. 

21 And for those reasons, and because we have

22 no posed solutions that I have seen that are better
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1 than the existing solution, the existing

2 configuration, we prefer to remain as-is. But let me

3 add as a footnote that if you do decide to do -- to

4 reconfigure in some way, the Bar in Arizona has a

5 preference to remain connected with an undivided

6 California. 

7 And that is for reasons I have articulated

8 in my paper. But one of them was alluded to by Judge

9 Browning a moment ago. There are more business

10 relationships between Arizona and California than any

11 other state in the Ninth Circuit. 

12 If you just look at the commercial airline

13 guides -- the flights in and out of Phoenix and Tucson

14 overwhelm the other patterns of travel. And that's

15 reflective, I think, of our business relationships,

16 our personal relationships. 

17 We're the only, California and Arizona

18 within the Ninth Circuit share that Mexican border,

19 and all of the challenges that come therefrom, in

20 terms of the immigration, in terms of the demographics

21 of our population. 

22 We're going to be enjoying a similar
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1 growth curve, as far as everyone can predict, to

2 California. And indeed, a fair number of our people

3 in Arizona come from California, and have remained

4 there. 

5 I think as Judge Browning can also attest,

6 in Arizona, being a comparatively small state, we have

7 grown up looking to California to fill the gaps where

8 we have not had precedents of our own -- we often look

9 to the re-statement or to California for guidance, and

10 have done so historically, as -- have members of the

11 Bar. 

12 So, as you have invested your time and

13 energy in this important task, we hope you take these

14 remarks from the organized Bar in Arizona to heart, in

15 arguing -- to keep us with an undivided California. 

16 ANNOUNCER WESTFELING: Thank you. Thank

17 you very much. And Judge Sidney R. Thomas of the

18 United States Court of Appeals for the Ninth Circuit.

19 And I just sat with this judge maybe a month ago, and

20 he -- he wouldn't think of moving to California. He

21 wants to stay in Montana. Good for you. (Laughter.)

22 JUDGE THOMAS: That is quite correct,
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1 Judge. This why, Members of the Commission, I

2 certainly appreciate the opportunity to testify. I am

3 Sid Thomas. I am a United States Circuit Judge of the

4 Ninth Circuit. 

5 I share -- and I want to compliment, I

6 guess, Senator Gorton, and the other Northwest

7 Senators, including Senators Bacchus and Byrnes from

8 Montana for their long attention to improving judicial

9 administration in the west. 

10 I think it is an important subject. The

11 Commission is a very valuable product of that concern,

12 and a -- (Unclear.) 

13 I share many of those concerns,

14 particularly about the -- on the bench. And so, I

15 join the court with a very open mind about circuit

16 division. However, having seen it from both sides,

17 from the bench and from the practitioner's side, after

18 serving on the executive committee, the long range

19 planning committee, and the automation committee of

20 the circuit, I oppose circuit division. 

21 I think that dividing the Ninth Circuit

22 would not solve or alleviate any of the problems that
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1 I have identified, and in fact would increase it. 

2 I must say in passing, although I didn't

3 make this part of my written remarks, that I was very

4 surprised when I tried the Ninth Circuit at the

5 strength of its collegiality. It's a very warm court.

6 A very cordial relationships, very strong

7 relationships there. 

8 And I really do believe that on a smaller

9 court, where you have strong personalities, you have

10 greater problems, of perhaps a -- lack of collegiality

11 than you do on a larger court. But I was surprised at

12 the strength of the court family. It's a very warm

13 court. And I was very proud to join it. I was

14 surprised at that aspect of it. 

15 I was also surprised when I -- looking at

16 problems, particularly for that of the Northwest, that

17 they are not going to be solved by dividing the

18 circuit. The Northwest attorneys are primarily

19 concerned about delay. But dividing the circuit will

20 not improve delay. 

21 And I say this for this reason, any

22 division of the circuit will involve duplicating
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1 unnecessarily clerical functions and those types of

2 function that -- which are critical. That means fewer

3 administrative resources. But the caseload is not

4 decreased. You're dividing the caseload, you're not

5 decreasing it. So, in any division, you're simply

6 allocating -- (Unclear.) 

7 I think the problems of dividing the

8 circuit geographically are demonstrated by the vast

9 number of proposals that we've had to split the

10 circuit. Six in the last several sessions of Congress

11 alone. 

12 There is the Northwest circuit that

13 Senator Gorton described, of Montana, Idaho,

14 Washington, Oregon, and Alaska. There is the what we

15 call the hopscotch circuit, which would be those

16 states, plus Arizona and Hawaii. The -- proposal,

17 which would divide California in half, and divide the

18 circuit north and south. 

19 The Pacific Rim proposal, which would put

20 Montana and Arizona in the Tenth Circuit, and leave

21 the Pacific Rim states alone. The string bean

22 circuit, which would be the Northwest circuits, plus
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1 Nevada and California. And finally, the horse collar,

2 or horseshoe circuit, which would be a California-only

3 circuit. 

4 I think the very number of proposals

5 indicates that there is simply no good way to divide

6 the present circuit. In analyzing this when I came on

7 the court, I thought really there ought to be five

8 factors or criteria that one ought to use in examining

9 whether or not a new circuit should be created. 

10 First, the circuit should have critical

11 mass. It should have a sufficient number of cases to

12 justify creation. There should be a critical mass to

13 allow administrative support. 

14 Second, any division ought to be

15 proportional. That is, the caseload ought to be

16 equally divided among the remaining circuits. 

17 Third, there ought to be geographic -- we

18 shouldn't have a circuit such as the hopscotch

19 circuit, which would put Arizona away from,

20 geographically away from any other circuit. 

21 Fourth, there ought to be jurisprudential

22 coherents. That is, there ought to be common laws,
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1 and common legal concerns.

2 And finally, it ought to increase judicial

3 efficiency. 

4 I won't analyze all the proposals, as I

5 have in my written statement. First, the Northwest,

6 which is appealing to many practitioners in the

7 Northwest. The difficulty with the Northwest circuit

8 is that it lacks critical mass. It will only take 18

9 percent of the caseload. 

10 Because budgets are divided by caseload

11 rather than by sheer number of circuits, that would

12 mean that we would only have 18 percent of the

13 resources. That would mean for practitioners in the

14 Northwest, they'd have the same number of cases per

15 judge, that something would have to be eliminated.

16 The Northwest would lose the bankruptcy

17 appellate panel, or it would lose the mediation unit,

18 which has resolved 500 cases plus a year. It would

19 lose the pro se unit, which has resolved thousands of

20 pro se cases a year, helped the circuit resolve those

21 cases. 

22 It might well lose the circuit executive's
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1 office, which has provided administrative strength.

2 And it would increase the administrative burdens on

3 the remaining judges. 

4 We have also lacked the capacity here in

5 the Northwest to engage in some of the video

6 technologies and computer technologies which will help

7 us in the future. 

8 So, I think the Northwest circuit would

9 lack the critical mass. Only the First Circuit and

10 the D.C. Circuit would be smaller. It would also lack

11 proportionality, only 18 percent of the cases. That

12 would leave the remaining Ninth Circuit with 20

13 judges, and 82 percent of the cases, which is hardly

14 a good division if you're concerned about the size of

15 the circuit. 

16 It would have jurisprudential coherence.

17 But it would also divide Montana from Arizona.

18 Montana and Arizona, particularly eastern Montana,

19 have many problems, in terms of Native American law,

20 in terms of water and mining, that are critical. 

21 It would divide Montana from California.

22 Montana's relationship with California law, is much as
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1 Don Bivens described as Arizona's relationship with

2 California law. 

3 So overall, it would not be an effective

4 use of resources. The Kruske Commission division

5 would divide California, and I agree with -- Sanny

6 Svetcov, that that's undesirable for California

7 practitioners. It's undesirable for the circuit, as

8 well.

9 Particularly when you look at initiatives,

10 which would be national attention and Congressional

11 concern. It would be a different -- potentially

12 different results in the northern division and

13 southern division of California, on the

14 constitutionality of initiatives, if the Kruske

15 Commission proposal were --

16 And therefore, even with a limited en banc

17 proposal, which would gear toward solving that

18 problem, some conflict would remain between north and

19 south. The Kruske Commission, though, is the only

20 proposal which divides the circuit proportionally.

21 Every other proposed division weights heavily in favor

22 of a California, whatever is left in California. 
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1 I won't go through the remaining versions

2 of the circuit, but I guess -- I hope the Commission

3 will take a look at a criteria by which we ought to

4 divide it. 

5 I see I'm just over my time, and I know

6 the importance of that, having been on the other side.

7 Let me just close by saying that I think the more

8 important solutions lie in terms of technology, by use

9 of video-conferencing, computers, we can bring the

10 circuit closer to practitioners. We're not there yet.

11 But I think with the use of that, we can decrease

12 delay, and if we put our resources there, we'll be

13 more efficient for it, more quickly -- 

14 CHAIRMAN WHITE: Thank you, Sidney. Are

15 there questions? Young man? 

16 JUDGE BROWNING: I guess that's me. Judge

17 Thomas, I think earlier you said as a given, how big

18 is too big? At what point have we reached the

19 critical mass you've talked about? 

20 JUDGE THOMAS: If you're talking about how

21 I was going to serve the growth?

22 JUDGE BROWNING: Yes. 
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1 JUDGE THOMAS: I'm not sure. In a way,

2 it's sort of like asking how long is a string. But I

3 think that we can't grow indefinitely. 

4 JUDGE BROWNING: But Congress has kind of

5 asked us how long is a piece of string.

6 JUDGE THOMAS: That's right. And we have

7 -- we have modified our request, and I think we're

8 only asking for 32 judges. I think we can operate

9 effectively for the foreseeable future with 28 or 32

10 judges. 

11 Beyond that, I think, although

12 administratively on a three judge panel, if things

13 continue to work, I think from an en banc perspective,

14 things start to break down. So, there is a point

15 where it's simply too large to manage effectively.

16 But I don't think the federal judiciary should

17 continue to grow. I think we need to find other

18 solutions, and keep the size relative as it is -- 

19 CHAIRMAN WHITE: Thank you. (Pause.) Any

20 other questions? 

21 PROFESSOR MEADOR: May I ask a question?

22 CHAIRMAN WHITE: Yes. 
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1 PROFESSOR MEADOR: I would like to ask

2 this question of both Mr. Bivens and Judge Thomas.

3 What would be your reaction to the suggestion that Mr.

4 Svetcov made that the circuit be retained intact as a

5 whole administratively, but there be divisions

6 created, either two or three divisions, which would

7 function with an overall circuit en banc available? 

8 MR. BIVENS: Professor -- this is Don

9 Bivens. I have only had the time to digest that

10 proposal this morning. It was certainly not

11 considered at the board of governors. From this

12 lawyer's perspective, I perceived no administrative

13 value to that particular suggestion, with all due

14 respect to my predecessor -- it seemed to me to be

15 adding two -- two layers of administration within the

16 circuit. 

17 I would need to understand how that made

18 things better before I could speak anything to it.

19 From the perspective of maintain Arizona's

20 relationship with California, and with the entire

21 circuit, which I understood it to preserve, I guess we

22 would have to favor that over some of the other
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1 divisions. But I personally did not find that to be

2 a compelling suggestion. 

3 JUDGE THOMAS: Professor -- I, too, find

4 the suggestion -- virtually unworkable and

5 undesirable. It's unworkable currently because we

6 don't have enough judges to go around. Currently 70

7 percent of our panels are comprised of visiting

8 judges, 90 percent comprised of seniors and visiting

9 judges. 

10 You cannot, under our current structure,

11 where there aren't sufficient judges to say you have

12 two judges from any particular division, coupled with

13 one from another, it would reduce the number of

14 panels, it would increase the -- (Unclear.) 

15 I think it's also undesirable for a couple

16 of reasons, even if we had enough judges. I don't it

17 solves anything, in terms of -- I think it reduces

18 collegiality. And in addition, if you, for example,

19 if you're talking about judges from the north and

20 south sitting -- being entire segregated, it reduces

21 the flexibility of the court to deal with problems. 

22 Currently, we have a large death penalty
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1 problem between the north and the south. About 90

2 percent of the death penalty cases are located in the

3 south, and about ten percent in the north. We're

4 going to need to devote judicial resources to that,

5 and Congress has mandated to do so. 

6 There is a strict division, and lack of

7 flexibility. I think we need -- (Unclear.) 

8 MR. SVETCOV: May I respond, if I may?

9 CHAIRMAN WHITE: Shortly. 

10 MR. SVETCOV: We currently have two

11 clerk's offices, one in Pasadena, and one in San

12 Francisco, predominantly San Francisco, to be sure.

13 But the divisions could be operated out of the two

14 existing clerk's offices, no additional facilities.

15 So, administratively, it's doable. 

16 Operationally, I'm not suggesting discrete

17 panels, strictly north and south. We could draw

18 judges, one judge from the south, senior judges and

19 district judges from the region count as part of the

20 -- the judges from whom you would draw. And I

21 specifically addressed the collegiality question by

22 not having strict panels. 
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1 So, maybe it's not a suggestion whose time

2 has not come, but all I have heard this morning are

3 the two extremes. Leave us alone and do nothing

4 and/or split it in some way that, none of which is

5 acceptable to anyone, including myself, who has tried

6 to figure out a way of dealing with the problem. 

7 My suggestion for operating divisions is

8 an experiment that was used in the Fifth Circuit as a

9 prelude to a split. I think there must be a fear that

10 it's a slippery slope. I don't see it that way. I

11 think it can operate long-term in the division. 

12 CHAIRMAN WHITE: It seems to me like you,

13 in your writing, feared to leave the status quo alone

14 because of what Congress would do. 

15 MR. SVETCOV: Well, we've already seen the

16 kinds of -- 

17 CHAIRMAN WHITE: Well, is that true? Is

18 that true? You're trying to head off a bad split of

19 the Ninth Circuit? 

20 MR. SVETCOV: Candidly, yes. 

21 CHAIRMAN WHITE: Okay. 

22 JUDGE RYMER: Mr. Svetcov, have you had
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1 any personal, professional experience with the, I

2 believe it's Division Two of the California Court of

3 Appeals, which in fact, in the greater Los Angeles

4 metropolitan area, as I understand it, operates on a

5 division principle. And I wondered whether you had

6 any notion of how that was received by the Bar?

7 MR. SVETCOV: Quite frankly, Judge Rymer,

8 the divisions there are divisions of three judges

9 each. 

10 JUDGE RYMER: I understand. But that is

11 just fortuitous. It could be divisions of three, six,

12 nine, twelve, fifteen, operating effectively,

13 contiguously throughout any given geographic area. 

14 MR. SVETCOV: Judge Rymer, in fact, that

15 is true in other divisions in California. For

16 example, in Sacramento, for the region that that

17 involved there, there are, I think, eight or nine

18 judges who sit randomly in panels of three, but

19 they're drawn from a group of nine. 

20 JUDGE RYMER: Yes. 

21 MR. SVETCOV: Similarly in San Jose.

22 Similarly in the Fresno Division. So, these divisions
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1 of about nine judges seem to operate effectively and

2 efficiently in California. Yes. That's true. 

3 JUDGE RYMER: Yes. What I am interested

4 in, the kernel of your idea, as much as I am in its

5 actual specifics. In other words, if I understand you

6 correctly, what you're really saying is that it would

7 be possible to have the circuit, the Court of Appeals,

8 administratively set up in divisions. Whether they

9 were floating up and down the circuit, or whether they

10 were geographically oriented, but serviced as a whole

11 by the circuit administrative structure. 

12 MR. SVETCOV: Correct. And by the

13 circuit's limited en banc structure. And I think that

14 I would leave it to the court -- the circuit itself to

15 decide the best way to operate the divisions, and do

16 it by internal rule of the court, which I think you

17 can do. 

18 JUDGE RYMER: Thank you. 

19 MR. SVETCOV: Thank you. 

20 CHAIRMAN WHITE: I think -- are we taking

21 a break? 

22 STAFF: One more panel. I think there's
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1 one more panel. 

2 (Whereupon, a recess was taken.) 

3 GOVERNOR LOCKE: Thank you very much, Mr.

4 Justice White, and the other distinguished members of

5 the Commission. I thank you very much for this

6 opportunity to appear before you on the structure and

7 the administration of the Federal Courts of Appeals.

8 First and foremost, I do not believe that

9 this is an issue that should be dealt with in

10 political terms. Nationally, the Federal Courts

11 should be structured and operated in a way that

12 results in a timely, efficient, and uniform justice.

13 Short term political issues should not be given

14 weight. And our Washington State attorney general

15 Christine Gregoire is in agreement with me on these

16 points. 

17 An important question being addressed by

18 the Commission is whether the Ninth Circuit should be

19 divided, so I'll focus my testimony on that particular

20 issue. Washington State has a strong interest in

21 maintaining the current unified structure of today's

22 Ninth Circuit. Our state is part of a geographical,
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1 economic, political, and historical fabric that is

2 woven from throughout the western and Pacific states

3 and territories. 

4 In looking back, it's evident to me that

5 we have benefitted from sharing the same Ninth Circuit

6 Court of Appeals. Looking forward to the future, I'm

7 even more convinced that single body of precedent

8 makes sense, and that splitting the circuit would be

9 a wrong move. 

10 Washington is tied to other states and

11 territories in the Ninth Circuit in a variety of ways.

12 Washington, Oregon, and California share a contiguous

13 coastline, and therefore share, and sometimes compete,

14 and conflict, on issues relating to coastal fish and

15 wildlife, commercial ports, and maritime law. 

16 These three states, plus Alaska, Hawaii,

17 and the Territories share the Pacific Ocean, and many

18 of the same concerns. Washington, Oregon, Idaho, and

19 Montana share the Columbia Snake River Basin, the

20 backbone of the Northwest, with its salmon, its hydro21 electric dams, its barges, and water for irrigation

22 and recreation. 
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1 Our electric system, including the Federal

2 Bonneville Power Administration, is part of an

3 electric power grid that quite literally binds the

4 entire western United States. 

5 Washington, Oregon, Montana, and Alaska,

6 share borders with Canada, along with California,

7 which borders Mexico. And so, we all share particular

8 concerns about immigration law and commerce along our

9 international borders. 

10 My point is this, if we were to split up

11 the Ninth Circuit, we could cut the cake in many ways.

12 But why cut the cake? Given the ties among the

13 states, the Ninth Circuit is a case where the whole is

14 greater than the sum of its parts could ever be. 

15 Arguments that the Ninth Circuit does not

16 function well are not compelling. And I'm convinced

17 by the ample rebuttal to those arguments made by

18 people intimately familiar with the courts that the

19 administrative problems can be remedied without

20 dividing the court. 

21 And I'm here to testify about concerns on

22 a different level. Washington and the Northwest are
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1 closely tied to California and the other western

2 states. Washington is home to many major

3 corporations, whose products, I'm willing to bet, we

4 have all used and enjoyed, even within the last few

5 days. 

6 How many people fly on a Boeing airplane?

7 How many people have sipped a Starbuck's latté?

8 Shopped for clothes or shoes at Nordstroms? Stayed in

9 a house or a hotel built with Weyerhauser lumber,

10 although you might not recognize it? Or even used

11 Microsoft software? 

12 We are proud of these businesses. But we

13 recognize that they are part of a national, and

14 indeed, a world economy. And as you know, if

15 California were a country, a separate nation, it would

16 be the ninth largest nation in the world, as measured

17 by gross national product. 

18 Those who see California as a liability,

19 in my belief, have too narrow a view. California is

20 an integral part of the western and Pacific states,

21 and is an important economic partner. All the more

22 reason for uniformity in the case law between
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1 Washington and California. 

2 It would not benefit Washington to see

3 California become part of another circuit, with

4 conflicting case opinions, and forum shopping, that

5 separate circuits would produce. I'm thinking of

6 cases relating to immigration law, labor law,

7 Endangered Species Act, the Bonneville Power

8 Administration, maritime law, and tribal treaty law.

9 The western states are not -- they are

10 tied together by geographic, natural resource,

11 economic, and legal issues. Issues that are

12 distinctive to the west. It is a virtue, not a vice,

13 that the Ninth Circuit is able to bring consistency

14 and coherence in all of these areas of law as they

15 apply to the states and the territories of the

16 circuit. 

17 If the circuit were divided, there would

18 be unnecessary, friction, forum shopping, competitive

19 advantages and disadvantages among states in different

20 circuits. There would be conflicts in the laws that

21 apply to fish, which know no boundaries, commerce that

22 is traded up and down the coast, and people who work,
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1 play, and emigrate throughout the Pacific Northwest.

2 It is a virtue, not a vice, that the Ninth

3 Circuit's judicial panels are drawn from large and

4 geographically diverse pool of judges, ensuring a

5 broad, not parochial approach to how federal law is

6 applied within our region. 

7 I think these virtues will become even

8 more evident in the future, especially as the United

9 States Supreme Court finds it increasingly difficult

10 to review and resolve all of the conflicting cases

11 from the various circuits. 

12 The twenty-first century will ties all of

13 us closer in many ways. Technology will increase our

14 communication. Multiple demands for limited natural

15 resources will force us to allocate them more wisely,

16 and in a cooperative fashion. And commerce will

17 become seamless across international borders. 

18 So, we should not be guided by short-term

19 political concerns. But rather, we should take the

20 long term look at the future. In that regard, we are

21 well served by a unified, integrated, well-run Ninth

22 Circuit Court of Appeals that we have. 
54

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1 Thank you very much. I want to thank you

2 for coming to Washington to hear our views. 

3 CHAIRMAN WHITE: Thank you, Your Honor.

4 You're -- I understand you are on a sort of a short

5 schedule. Would you care to withdraw? 

6 GOVERNOR LOCKE: Yes. I'm more than happy

7 to entertain any questions that you might have. But

8 again, I want to thank you for coming to our state,

9 and soliciting our views. 

10 CHAIRMAN WHITE: All right. Do you have

11 any questions? 

12 (Multiple voices.): No, sir. 

13 GOVERNOR LOCKE: And who is following you?

14 UNIDENTIFIED: I'm Governor's counsel.

15 I'm not going to speak.

16 CHAIRMAN WHITE: Oh, okay. 

17 GOVERNOR LOCKE: Thank you very much, sir.

18 CHAIRMAN WHITE: Thank you, sir. And good

19 luck to you. (Pause.) Boy, we're honored. 

20 MS. GREGOIRE: My pleasure to be here. I

21 had expected to be in Washington, D.C., and was

22 allowed to stay home, and so I came myself. 
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1 CHAIRMAN WHITE: Great. 

2 MS. GREGOIRE: Justice White and Members

3 of the Commission, I am Christine Gregoire, the

4 attorney general for the State of Washington. I have

5 been attorney general since 1993. And I have served

6 in the Washington state attorney's general office

7 since 1975. 

8 Let me say first, thank you very, very

9 much for holding this hearing, and for undertaking

10 this very important task. 

11 We are in challenging times today. Our

12 public's confidence in our justice system is low for

13 a number of reasons, but noticeably because of the

14 time and the cost involved in seeking justice. 

15 My purpose here today is not to urge you

16 in any way, shape or form to lend an ear to those who

17 politically want to divide the Ninth Circuit, to those

18 who want to philosophically divide the Ninth Circuit.

19 But my purpose here today is to say that we must

20 insure that we do everything we can to restore public

21 confidence in our federal appellate system to meet the

22 needs of our public here in the Ninth Circuit now, and
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1 into the future. 

2 The statistics are revealing with regard

3 to the Ninth Circuit. It includes nine states, and

4 two territories, larger than any other circuit.

5 Geographically, it covers 14 million square miles,

6 Alaska to Mexico, Montana to Hawaii. This is

7 comparable to all of western Europe. It consists of

8 45 million people, with the next largest circuit at

9 less than 29 million people. 

10 It is the fastest growing in terms of

11 population, with an expected 40 percent increase in

12 growth of our population over the next 15 years. At

13 28 authorized judge-ships, it is by far the largest,

14 well above the 12.6 average of all the other circuits.

15 The challenge with size is clear. There

16 is a challenge for those who are members of the Ninth

17 Circuit in terms of collegiality. The travel time,

18 and costs, involved with that geographics.

19 Familiarity with the state laws with the respect of

20 the nine states and the two territories. The ability

21 of the judges to stay on top of the circuit decisions.

22 The humongous workload, and it's a growing workload.
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1 En banc, and its ability to fulfill its

2 intended purpose. What is an en banc hearing in the

3 Ninth Circuit? The rates of review and reversal are

4 staggering. And domination by one state, 27 percent

5 of those heard in the Ninth Circuit are the Central

6 District of California. 

7 The Ninth Circuit should be applauded. It

8 has worked very hard to manage itself, and its growth,

9 and the volume of the workload. And under the

10 circumstances, it must be commended. All of these

11 issues have been exacerbated by the vacancies, and the

12 failure to timely fill and replace those judicial

13 vacancies in the Ninth Circuit.

14 This has been an untenable situation for

15 the citizens and the practitioners of the Ninth

16 Circuit. 

17 In no set of cases in my office is

18 timeliness a greater problem than that of capital

19 cases, and it is the one area I wish to bring to your

20 attention specifically. By way of example, it took

21 over six months from the bringing of the schedule to

22 the notice of appeal, six months elapsed. 
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1 In another case, a very notorious capital

2 case in Washington State, it took five years to

3 process a single decision. Out of frustration, my

4 office has asked the U.S. Supreme Court to urge the

5 Ninth Circuit to take a position, and make a decision

6 in that particular case. 

7 The attorneys general of the Northwest are

8 united in requesting your review, out of concern for

9 the future. While the Ninth Circuit has done a

10 commendable job with what it has to deal with today,

11 with that 40 percent growth projected over the next

12 fifteen years, that in and of itself I think is very

13 telling for the future of the Ninth Circuit. 

14 With an increasing population, and a

15 resulting caseload, we urge you to look at what the

16 ramifications will be to the Ninth Circuit over the

17 course of the next fifteen years. 

18 We ask for a thoughtful review of the

19 entire federal appellate system for uniformity.

20 Clearly, the Ninth Circuit is not consistent, or

21 uniform, in terms of size, or geography, or workload,

22 or judicial appointments. 
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1 We need to ensure the timely filing of

2 vacancies by the White House and the Congress. And we

3 would ask you as at least a footnote to urge that this

4 is ensured to occur in the future. Politics,

5 conservative and liberal, philosophically, those

6 issues we believe have no issue before you, no purpose

7 before you. 

8 We ask that you look at the timely and

9 affordable processing of justice to the citizens of

10 the Ninth Circuit, and to our nation. And what that

11 calls for is a look, not just today, as to whether the

12 Ninth Circuit is meeting the needs of those citizens,

13 but what the future holds, with that increased,

14 workload increased population. 

15 Again, thank you very, very much. For

16 your willingness to undertake this project is

17 extremely important to the public confidence of the

18 citizens of this state, and to the other states, and

19 the two territories of the Ninth Circuit. Thank you.

20 CHAIRMAN WHITE: Do you want to go ahead?

21 COMMISSIONER: General Gregoire, if the

22 tenor of your remarks that the Ninth Circuit is
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1 functioning well today, but is doomed to failure in

2 the future because of growth? 

3 MS. GREGOIRE: I have joined with my

4 colleagues, five colleagues, we issued a letter saying

5 we need to look at splitting up the Ninth Circuit. My

6 greatest concern today, in terms of timeliness, and

7 ability to process the issues lie in capital cases. 

8 The experience in my office with regard to

9 the civil cases is one that we don't think we're

10 particularly out of sync with the rest of the country.

11 So, today they have taken extra-ordinary efforts to

12 deal with their caseload. 

13 But we do not believe in any way shape or

14 form they will be able to do so with the projected

15 growth in the Ninth Circuit in the future. 

16 COMMISSIONER: So, if we were to wait for

17 the crisis to fully develop, what does your remark

18 mean? That we should look at the Ninth Circuit with

19 an eye towards restoring confidence in the federal

20 decision making process occurs? 

21 MS. GREGOIRE: Well, I would implore you

22 not to wait until the crisis occurs. I think the
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1 timing of this commission is absolutely perfect,

2 because we can project out, and see what the future

3 holds for us. 

4 So, I think the timing for you to make a

5 decision and a recommendation is now. It doesn't have

6 to happen tomorrow. But it does have to happen, and

7 we do have to put ourselves on a course, to make it a

8 thoughtful way, to process a division of the Ninth

9 Circuit, so that we can meet the needs of the public

10 at large in the Ninth Circuit. 

11 CHAIRMAN WHITE: So what is it -- so, what

12 is your suggestion that we do? 

13 MS. GREGOIRE: Well, I'm not into the,

14 should it be the Northwest states? Should it be

15 California, and the few territories, and Hawaii? I

16 don't have an opinion as to how the circuit should be

17 divided. But very clearly, to meet the needs of our

18 citizens, it must be divided, in my estimation, in a

19 thoughtful way for the future. 

20 How that division occurs, I remember the

21 -- commission in which it said no less than three

22 states. But again, that issue is for you to decide
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1 today, as to whether that is even an appropriate

2 course, in light of the humongous amount of cases that

3 are being sent to the Ninth Circuit by way of

4 California alone. But I would hate to see one circuit

5 for one state. I do believe there should be a joining

6 of the territories and at least a couple of states

7 with California, and potentially the rest of the

8 states being the separate circuit. 

9 CHAIRMAN WHITE: Could I ask you a

10 different question? Have you taken a stand as the

11 attorney general to oppose the Congressional effort to

12 expand the -- to expand the jurisdiction of the

13 federal courts into what usually has been state

14 business? 

15 MS. GREGOIRE: I have not. To be

16 perfectly honest with you, I believe, as an aside, I

17 have not taken a position at this point. But I

18 believe that the federal court system is that

19 sufficient, frankly, with which it must deal. And I'm

20 not talking alone to the Ninth Circuit. I'm talking

21 about all of the circuits. 

22 CHAIRMAN WHITE: But I don't think -- it
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1 seems to me that unless -- unless people who know what

2 they're talking about attempt to stop this trend,

3 we're in bad shape. And so, maybe you could get your

4 association to do something about it.

5 MS. GREGOIRE: I serve as president-elect.

6 I will be president the next two years. 

7 CHAIRMAN WHITE: (Laughs.) 

8 MS. GREGOIRE: And to be honest with you,

9 one of the major issues that I will be confronting, as

10 president of the National Association of Attorneys

11 General, my agenda will be, how do we insure

12 restoration of public confidence in the justice system

13 with a full view of what it is attorneys general

14 around the country need -- 

15 CHAIRMAN WHITE: Well, they're just taking

16 away -- they're invading your territory. 

17 MS. GREGOIRE: And obviously the National

18 Association would oppose such effort. But I will urge

19 my colleagues to get involved with this issue. 

20 JUDGE BROWNING: You came here to lobby

21 Justice White, and it appears he's lobbying you now.

22 (Laughter.) 
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1 MS. GREGOIRE: I see this. I see this.

2 (Laughs.) Effectively. 

3 COMMISSIONER: At previous public

4 hearings, the Commission has heard the point made that

5 there is, or should be, a distinction between the

6 circuit and the Court of Appeals. And we've had

7 several different proposals along the way to organize

8 the Court of Appeals into geographical divisions. And

9 we heard that again this morning earlier before you

10 got here. 

11 What would be your reaction to the

12 proposal of organizing the Court of Appeals into, say,

13 three divisions, a northern, central, southern

14 division, while retaining the circuit as an

15 administrative territorial unit intact? 

16 MS. GREGOIRE: You know, I -- I hadn't

17 heard that proposal before. I'd like the opportunity,

18 if I could, to review it, and think more about that

19 before I give you an opinion -- a position on that

20 today. If you would allow me to supplement my

21 remarks, I would be happy to think -- I want to do

22 that in a much more thoughtful way than just
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1 responding to you right now. 

2 CHAIRMAN WHITE: All right. You may

3 inform yourself -- Dan, isn't it the first speaker in

4 that line of -- ? 

5 PROFESSOR MEADOR: -- Svetcov? 

6 CHAIRMAN WHITE: Yeah. 

7 PROFESSOR MEADOR: Yes. As you may know,

8 the testimony, written testimony at all previous

9 public hearings is on the Commission's Web site. It's

10 available there. You can have access to that. Sandy

11 Svetcov this morning, he made this point in his

12 testimony this morning. 

13 MS. GREGOIRE: Okay. I will. Thank you.

14 COMMISSIONER: General Gregoire, may I ask

15 one other question. We all know that capital cases

16 receive intense and considerable scrutiny at every

17 level of the process, state and federal. 

18 Other than capital cases, is there any

19 under-current in your office, or do you have any

20 feeling about how the Ninth Circuit transacts its

21 business, and how effective it is? And whether, for

22 example, there are undue numbers of inter-circuit
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1 conflicts, or intra-circuit conflicts? 

2 Do your assistants bring those subjects to

3 your attention? And what is the general under4 current? 

5 MS. GREGOIRE: Right. We -- I have about

6 440 lawyers that practice in my office, and we have a

7 number of cases before the Ninth Circuit. I surveyed

8 all of my lawyers with respect to this issue, and I

9 got no issue with respect to the civil cases that are

10 paneled by the Ninth Circuit Court of Appeals. 

11 Very clearly, the dominant concern was

12 with respect to capital cases. And unfortunately,

13 there was a very notorious case that has occurred on

14 my watch as attorney general in which the Ninth

15 Circuit has held the case for five years, with no

16 issuance of any opinion. 

17 And there was a public outrage here about

18 that. That is one example. That is not the only

19 example. But with respect to the civil cases, with

20 all of the issues that you've just addressed, I've

21 gotten no complaints from my lawyers. We may be a

22 little bit out of sync, in terms of, say, three to six
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1 months longer than the other circuits in some cases.

2 We didn't think that that was a sufficient

3 concern to bring to your attention. And in

4 particular, because of our conference of western

5 attorneys general this past summer, we invited one of

6 the judges from the Ninth Circuit to come talk to us.

7 And we shared our concerns. And they've

8 taken action to try and address those concerns. So,

9 we've been pleased with their attempts to address it.

10 So, my position today is not that I have a problem

11 today. 

12 I can't imagine, with the increased

13 workload, increased population projected in those nine

14 states, the two territories, over the next fifteen

15 years, that the circuit can even remotely be able to

16 handle it, in terms of all of the issues that I

17 identified for you in terms of size. So, my concern

18 lies with the future. 

19 COMMISSIONER: Thank you. 

20 CHAIRMAN WHITE: Is the Ninth Circuit's

21 workload increasing very much? 

22 MS. GREGOIRE: Dramatically. 
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1 CHAIRMAN WHITE: Where? 

2 MS. GREGOIRE: Well, predominantly,

3 frankly, out of California. If you look at -- 

4 CHAIRMAN WHITE: In the south, I take it.

5 MS. GREGOIRE: Right. If you look at the

6 central district, it now has some 27 percent of the

7 total workload of the Ninth Circuit. 

8 CHAIRMAN WHITE: Yeah. And what about

9 your jurisdiction? 

10 MS. GREGOIRE: Ours is increasing. But it

11 is not -- it is not dramatic, like what you find -- 

12 CHAIRMAN WHITE: It's what, one or two

13 percent, or -- a year, maybe? Or -- ?

14 MS. GREGOIRE: Or probably more than that,

15 Your Honor. But -- but again, it is not dramatic,

16 like what you -- 

17 CHAIRMAN WHITE: Well, it isn't what it

18 used to be. (Pause.) Thank you very much. 

19 MS. GREGOIRE: Thank you very much.

20 Again, I appreciate the opportunity. 

21 CHAIRMAN WHITE: All right. (Pause.)

22 Who's -- ? 
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1 COMMISSIONER: I guess Mr. Lance, from the

2 attorney general of Idaho. 

3 CHAIRMAN WHITE: Mr. attorney general? 

4 MR. LANCE: Good morning, sir. Mr.

5 Justice White, distinguished members of the

6 Commission, I would like to thank you for the

7 opportunity for Idaho to speak here today. 

8 I will say at the commencement that I have

9 been authorized by my governor, Phillip E. Bath to

10 convey the remarks that I am about to convey. And he

11 and I are in total concert relative to the desire and

12 necessity of dividing the Ninth Circuit Court of

13 Appeals into additional circuits. 

14 Let me commence by saying that of course

15 the average case stays with the Ninth Circuit for

16 about 14.4 months. It's the longest of any circuit.

17 The Second Circuit has the least time average, at 8.5

18 months. And I think the parallel here is the Fifth

19 Circuit, which was divided a few years ago. And

20 presently, their workload is turned around at an

21 average of 9.9 months. 

22 In September of 1995, there were five of
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1 us attorneys general signing off on the concept of

2 dividing the Ninth Circuit. Attorney general Bothelo

3 of Alaska, attorney general Zurich of Montana, my

4 colleague Chris Gregoire appeared in the State of

5 Washington. The attorney general of Oregon, and

6 myself. 

7 Since September of 1995, I find no reason

8 to withdraw or retreat from that request that the

9 circuit be divided. I have prepared my written

10 statements, and I had a very speech prepared by my

11 staff. 

12 But listening to the inquiry of the panel

13 this morning to some of the previous speakers, one of

14 the questions that I detected was, how does one divide

15 up the Ninth Circuit in a fair, and equitable, or

16 reasonable manner? 

17 Senator Groton from Washington here, I

18 believe, had a proposal that would be consistent with

19 my thoughts on the matter. But I would like to point

20 out a couple of things. In Idaho, we are engaged in

21 the Snake River Basin adjudication, which is the

22 largest adjudication in the United States, to my
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1 knowledge. 

2 Presently, we have 185,000 claims pending.

3 And we are discerning -- determining the water rights

4 of all of the litigants, to all of the water in the

5 State of Idaho, to include the federal government, and

6 agencies of the federal government. 

7 We have common, too, of course, Oregon, as

8 well as Washington, and with interests in Montana, the

9 Columbia River Basin. And of course, the Columbia

10 River Basin is the subject of some discussion

11 recently, relative to dam breaching. Some discussion

12 relative to the recovery of salmon, steel-head runs,

13 and things of that nature. There is a commonality. 

14 One of your witnesses this morning was

15 speaking about the prospect of Canadian immigration,

16 and failed to mention the fact that we and Idaho also

17 have a common border, of course, with the country of

18 Canada. 

19 Some of the tribal issues that we

20 experienced in the northwest, Pacific Northwest,

21 dealing with our tribes, are very common, relative to

22 Washington, Montana, Idaho, and Oregon. We have
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1 before us the prospect of electrical de-regulation,

2 and the Bonneville Power Authority. And we believe

3 that there's a certain commonality of issues in

4 Montana, Idaho, Washington, and Oregon. 

5 And lastly, to say that we have federal

6 lands in Idaho that are presently under federal

7 management. Sixty-seven percent of our land mass is

8 under federal management, or federal agencies.

9 Alaska, I believe, has a number that is greater than

10 that. And of course, Nevada does, as well. And we

11 anticipate that there will be several issues in the

12 immediate future that deal with those issues. 

13 So, in short, my request of you is to, A,

14 divide the Ninth Circuit, to make it more efficient

15 and more wieldly, and do it now, rather than later.

16 B, precisely how you choose to do it, or how you

17 choose to recommend to do it is certainly your

18 prerogative. But I pointed out, I believe, some areas

19 where we have a commonality of interests in the

20 Pacific Northwest states. 

21 And with that, sir, I submit myself to

22 your comments. 
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1 CHAIRMAN WHITE: Well, I wish it were our

2 decision. But it's the Congress of the United States

3 that is going to make the decision. 

4 MR. LANCE: I'm sure they'll go along with

5 whatever you recommend. (Laughter.) 

6 CHAIRMAN WHITE: Go ahead. 

7 COMMISSIONER: I don't have any questions.

8 Thank you. 

9 COMMISSIONER: Thank you all very much. 

10 CHAIRMAN WHITE: Barbara Ritchie, the

11 deputy attorney general of Alaska.

12 MS. RITCHIE: Thank you. 

13 CHAIRMAN WHITE: You may proceed. 

14 MS. RITCHIE: My name is Barbara Ritchie.

15 I am the deputy attorney general for the State of

16 Alaska. And I want to thank you for the opportunity

17 to testify today, and present the views of the State

18 of Alaska. 

19 Attorney general Bruce Botehlo was

20 originally scheduled to testify today, and this issue

21 is very important to him. However, our governor

22 requires his presence at a special session of the
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1 Alaska legislature, which began yesterday afternoon,

2 to take up another very difficult and very decisive

3 issue, at least in our state, that of subsistence

4 hunting and fishing rights. 

5 As requested, I will summarize the

6 essential point of our written statement, why the

7 State of Alaska believes that the Ninth Circuit should

8 be split. 

9 CHAIRMAN WHITE: Would you say that again?

10 MS. RITCHIE: Excuse me. Why the State of

11 Alaska believes that the Ninth Circuit should be

12 split. We believe that the Ninth Circuit should be

13 split to create a new circuit that are composed of

14 states that are more alike in population, and social

15 and economic factors. The circuit is simply too big

16 to equitably and effectively resolve its cases in a

17 timely manner. 

18 The court's vast and diverse geographical

19 area, and the large and growing population of the nine

20 states and two territories it encompasses have made

21 the circuit too large in terms of the number of judges

22 and the number of cases it must handle. 
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1 Because of the relatively few number of

2 Alaska cases, and the many significant differences

3 between our state and the heavily populated states in

4 the circuit, the judges assigned to Alaskan cases are

5 often not familiar with Alaska's unique issues, its

6 people and culture, and the complex and specialized

7 matrix of laws that apply to Alaska. 

8 As the Commission members know, the Ninth

9 Circuit is the largest in the nation. It serves a

10 population of 45 million people, fifteen million more

11 than the next largest circuit. The Court's filings

12 are more numerous than any other circuit, and there

13 are also more judges in the Ninth Circuit, 28,

14 compared to seventeen in the next largest circuit. 

15 How does all this affect Alaska? Alaska's

16 impact on the Ninth Circuit caseload is truly dwarfed

17 by the more populated states in the circuit. Alaska,

18 with its population of six hundred and six thousand

19 generated only two percent of the Court's cases in

20 1997. 

21 Given the relatively few Alaska cases,

22 Alaskan litigants are far less likely than litigants
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1 in the heavily populated states to draw panels with

2 judges who are familiar with their state. 

3 Not only is Alaska remarkedly different

4 socially, economically, and geographically, from the

5 heavily populated states in the circuit, but Alaskan

6 cases often involve complex federal statutes that the

7 judges do no encounter in the other 98 percent of

8 their cases. 

9 Most notably the Alaska Native Claims

10 Settlement Act, which granted 44 million acres of

11 lands to corporations owned by Alaska natives, and the

12 Alaskan National Interest Lands Conservation Act,

13 which added over 104 million acres of lands to the

14 federal conservation -- units in Alaska. 

15 In order to reach just results, the Court

16 must have a good degree of understanding about its

17 constituency, so that it can appreciate the legally

18 relevant facts of the case. Many aspects of life in

19 Alaska are very different than any other western

20 states. But this may not be readily apparent to a

21 judge from California or Arizona reading a brief. 

22 To highlight just some of our differences,
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1 and to give you a little insight into Alaska's

2 geography and -- people, I have compiled for you some

3 Alaska facts that I have entitled, "Alaska: It's Hard

4 to Imagine". And I have left copies of these with the

5 clerk, that will be in your packets. 

6 Alaska, with an area of 586,400 square

7 miles, is more than one fifth the size of the

8 contiguous United States. Its coastline is longer

9 than all of the other 48 states combined. Yet Alaska

10 has only 12,200 miles of public roads, about the same

11 as the State of Vermont. 

12 Less than one third of our recognized

13 communities are connected to the road system. The

14 rest are accessible only by boat, plane, snow-shoeing,

15 or dog sled. Even the town I'm from, June, the state

16 capital, and with 30,000 people, the third largest

17 city in our state, is not accessible by road. 

18 And many of our communities are remote

19 native villages, with populations of under 300 people.

20 Thus, in Alaska, an easement or river might have the

21 significance given to a major highway in another

22 state. 
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1 Independent thinking, living off the land,

2 and overcoming challenges presented by isolation and

3 vast distances between communities are all central

4 elements of the collective identity and experience of

5 Alaskans. 

6 Regardless of how well attentioned the

7 judges may be, if their opinions reveal a lack of

8 depth of understanding about a people or a place, the

9 result -- patronizing or even offensive. 

10 I'd like to take a moment to explain one

11 aspect of a case that illustrates our point. The

12 Alaskan National Interests Lands Conservation Act

13 grants priority for hunting and fishing for

14 subsistence purposes to rural residents in Alaska. 

15 The case raised the issue of whether the

16 Keenai peninsula, an area on the road system in south

17 central Alaska, is rural. In Alaska, rural has a

18 definite and well understood meaning. Rural Alaska

19 means bush Alaska. Self-dependent, isolated

20 communities that are generally un-connected to

21 Alaska's roads or railways. 

22 The state defined the term to encompass
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1 these communities by excluding areas characterized by

2 -- (Unclear.) The Ninth Circuit rejected the state's

3 interpretation out of hand, calling it an exotic and

4 unusual. The judges cannot conceive that rural might

5 have a different meaning in Alaska than it does in the

6 realm of their experience. 

7 The Court remarked that the term rural is

8 not a term of art, but is, and I quote, "A standard

9 word in the English language commonly understood to

10 refer to areas of the country that are sparsely

11 populated, where the economy centers on agriculture or

12 farming." 

13 Rural simply does not have that meaning in

14 Alaska. Alaskans worked closely with their

15 Congressional delegation drafting this provision of

16 the federal act. The Ninth Circuit's failure to lend

17 any deference to the state's interpretation, and

18 instead to impose on Alaska its perceptions of the

19 word, changed the scope and impact of the statute.

20 Undoubtedly, the Court was more

21 intentioned, but its lack of understanding of Alaska

22 was so evident that regardless of the equity of the
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1 result, the decision made Alaskans feel alienated. 

2 In summary, in order to be well served by

3 a federal court of appeals, a state must be either

4 sufficiently populated to generate enough cases so

5 that each judge frequently hears one, or similar

6 enough to the more populated states, so that

7 infrequent contact by the judges is inconsequential.

8 Compared to the heavily populated states

9 of the Ninth Circuit, Alaskan are neither frequent,

10 nor similar. For these reasons, we urge that the

11 Commission recommend to the President and Congress

12 that the Ninth Circuit be split to combine the more

13 similarly situated states into a new circuit. 

14 This would enable speedier and more

15 consistent rulings by judges who would have a greater

16 familiar with the social, geographical, and economic

17 life of the region. 

18 Thank you for your time and attention

19 today. 

20 CHAIRMAN WHITE: Do you have suggestion

21 about how it should be split, other than that you

22 would like some judges that understand a little bit
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1 more about Alaska? 

2 MS. RITCHIE: Your Honor, like my

3 colleagues from Washington and the State of Idaho, I

4 didn't come today with a specific proposal. Our

5 attorney general, along with the other attorney

6 generals in the Pacific Northwest, has supported a

7 split -- Ninth Circuit, that would combine Washington,

8 Oregon -- Washington, Idaho, and Montana. 

9 Having done some reading on this issue

10 before coming down, I can perceive there have been

11 many, many various options for looking at re12 configuration of the Ninth Circuit proposed, all of

13 which have been -- 

14 CHAIRMAN WHITE: And there are some

15 problems about your suggestion. 

16 MS. RITCHIE: Right. I realize that. I

17 think, our main points are simply to try to come up

18 with an improvement configuration that would make the

19 residents of our state and states more similarly

20 situated to Alaska feel more in touch with the federal

21 court system that is serving their communities. 

22 CHAIRMAN WHITE: Does Alaska have a judge
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1 on the Court of Appeals? 

2 MS. RITCHIE: Yes. It does. 

3 CHAIRMAN WHITE: And who is that? 

4 MS. RITCHIE: We have Judge Kleinfeld, and

5 Senior Judge Bucheber. 

6 CHAIRMAN WHITE: And those two judges are

7 old enough to educate some friends? 

8 MS. RITCHIE: (Laughs.) Well, I'm sure

9 they're doing their best. 

10 CHAIRMAN WHITE: All right. 

11 COMMISSIONER: Ms. Ritchie, let me ask a

12 question. You talk about the interpretation of rural

13 in a Ninth Circuit opinion. Was that word used in a

14 federal or state statute? 

15 MS. RITCHIE: Your Honor, that was a

16 federal statute, the Alaska -- 

17 COMMISSIONER: Well, is regionalism

18 important when judges are interpreting federal law,

19 and announcing federal law? Our -- the Court of

20 Appeals judges I have known are unfortunately very

21 able to read federal law and decide what it means.

22 And if they are going to come to the wrong
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1 result, probably the oral argument process exposed

2 this line of thinking about what rural might have

3 been. And wouldn't you think that if it were that

4 distinctive and unique, it would be the lawyer's

5 responsibility to bring that to the Court's attention?

6 MS. RITCHIE: Your Honor -- 

7 COMMISSIONER: In a case like that? 

8 MS. RITCHIE: Certainly important is the

9 lawyer's obligation. I think our point is that to be

10 -- equitable and just result, however, it would

11 greatly benefit the Court if it were more familiar

12 with the entire context of a particular federal law.

13 Particularly in this instance, with some

14 -- both the Nopa and Ancsa, which are unique to

15 Alaska. And yet, of critical importance to our state,

16 and very carefully crafted. And you really need to

17 have some familiarity with the context of those

18 particular laws to properly interpret and apply them.

19 COMMISSIONER: Well, to understand your

20 argument fully, suppose this case had gone to the

21 United States Supreme Court with its present

22 composition. I'm walking on some tender ground here.
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1 I hope I get away with it. (Laughter.) 

2 CHAIRMAN WHITE: No. I have no ground

3 anymore. (Laughter.) 

4 COMMISSIONER: They probably know as

5 little about Alaska, its culture, and its social,

6 political, and economic conditions as I do, or as

7 whoever decided that Ninth Circuit case does. Yet,

8 they decide cases affecting the future of Alaska on a

9 monthly basis. 

10 Are -- do you think they are deficient in

11 assessing the peculiar needs of Alaska in those cases?

12 I don't mean that to put you on the spot. I mean,

13 answer it any way you want. I just mean, do you think

14 that's a problem? 

15 MS. RITCHIE: I would say -- we've had a

16 recent example of that -- situation, actually, with

17 the State of Alaska. The particular case I was

18 mentioning, we did -- we did -- and was denied. 

19 And I don't think Alaska or any other

20 state should have to be in a position of trying to get

21 cases to the U.S. Supreme Court to straighten out what

22 they think are incorrect interpretations of the law,
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1 as that apply -- that applies to their state. 

2 In addition, a recent example that you may

3 have noticed -- what's called the Venatai Indian

4 Country case, where the Ninth Circuit had reversed the

5 District Court in Alaska, and had interpreted the

6 Alaskan Native Claims Settlement Act to provide that,

7 what is called Ancsel lands, the appropriation lands,

8 could be indian country. 

9 We did successfully seek -- in that case,

10 and it was unanimously reversed by the United States

11 Supreme Court. In that case, we were trying to find

12 out what the proper interpretation is of Ancsa to

13 these lands -- to these lands in Alaska -- indian

14 country was applied to Ancsa lands. 

15 And in many people's view, the Ninth

16 Circuit essentially re-wrote Ancsa in that case. And

17 that's why we went ahead, and to it to the Supreme

18 Court. There, the Supreme Court accepted the state's

19 interpretation of that law, and reversed the Ninth

20 Circuit. So, obviously, you can get get these kinds

21 of things corrected. It's not without major effort.

22 COMMISSIONER: You say there are two
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1 judges from Alaska on the Court of Appeals. Do you

2 sense there is any effort on the part of the Court of

3 Appeals to have one of those Alaska judges sitting on

4 Alaska cases? 

5 MS. RITCHIE: Let's see, in answer to that

6 question, I would say no. I don't think there is.

7 The number of combinations of potential panels, I --

8 I could be wrong. I'm just not aware of anywhere

9 we've had panels that have had those two judges. But

10 -- 

11 COMMISSIONER: Well, specifically, was

12 there an Alaska judge on the panel that decided the

13 quote rural case you're talking about?

14 MS. RITCHIE: No. There was not. Nor on

15 the -- case. 

16 CHAIRMAN WHITE: Thank you very much.

17 (Pause.) No more questions? 

18 STAFF: If we could have this panel

19 excused, and if we could have the next panel? 

20 MR. SMITH: Good morning. 

21 CHAIRMAN WHITE: Good morning, Mr. Smith.

22 Welcome.
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1 MR. SMITH: Thank you very much, Justice

2 White. It is indeed a great pleasure to be here

3 before all of you, and to express a few views on

4 bankruptcy. I have a very, very narrow niche to

5 address, and I will try and stick within that niche.

6 The impact of a -- split of the circuit on bankruptcy

7 practice in the Ninth Circuit as we know it today. 

8 I have submitted a written statement. It

9 does give a little information on an ad hoc canvassing

10 of prominent Ninth Circuit bankruptcy lawyers, which

11 I must confess for the accuracy of the record, the

12 great majority of which are California residents. I

13 want to make that clear. But we did have some

14 recurrence from others. 

15 I will address their remarks only briefly,

16 in the sense that I believe with two exceptions, they

17 concur in what I am about to say. Those two

18 exceptions, one abstained, feeling that there was too

19 much delay in resolving bankruptcy appellate matters

20 at the Ninth Circuit level at this point in history.

21 And the other said he was not convinced that there

22 shouldn't be a split. 
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1 But out of all of those that I canvassed,

2 some seventy-some, not all returned, but the vast

3 majority of those that did shared my views. I have

4 submitted my statement to them. And I think it's fair

5 for me to make that statement for the record, although

6 I speak only on my own behalf, and not on behalf of

7 any organization of which I may be a member. 

8 Let me turn quickly to simply stating for

9 the cord that I have read carefully, and concur in

10 several of the statements that have been submitted,

11 insofar as they do impact on bankruptcy practice.

12 Those statements include Judge Huggs' statement, the

13 submission by Judge Meyer on behalf of the bankruptcy

14 and appellate panel for the Ninth Circuit, and the

15 statements of Judge Newsome. 

16 I will not go into those statements. I

17 just simply wanted to make that clear, that I do

18 concur with their statements. 

19 Let me turn to the question of the adverse

20 impact on the bankruptcy appellate panel if there is

21 a split. As you, I hope recall, back in the

22 seventies, there was a recommendation by the
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1 commission of which I participated in as the deputy

2 director, that there be a different approach to

3 bankruptcy appeals. 

4 Traditionally, it had simply gone to the

5 district court, and it didn't work out very well.

6 District judges didn't care much about bankruptcy.

7 There were intolerable delays, and no one was happy.

8 The Commission recommended that there be

9 a possible direct appeal to the circuit, but it had to

10 be with the consent of both parties. That wasn't

11 bought by Congress. But I mention it, because it has

12 been revived in the most current commission that just

13 concluded its work last year. 

14 It has recommended a direct appeal of

15 bankruptcy cases to the circuit -- just a second, I

16 think that would be a terrible idea. And I think it

17 would overwhelm the circuits. Because of the great

18 number of bankruptcy appeals, I also believe it would

19 unfairly prejudice litigants in the bankruptcy field,

20 because many cases simply can't afford the process of

21 going through the circuit, the expense of it. 

22 But let me address the fact, what
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1 happened, after the 1978 code was enacted is that the

2 Ninth Circuit took the lead in developing a bankruptcy

3 appellate panel system, and it has worked

4 extraordinarily well. It works today, and it works,

5 I believe, in large part because of the size of the

6 Ninth Circuit. 

7 Having as many bankruptcy judges as there

8 are in the circuit, and it's in excess of 70, and it's

9 my understanding it enables a bankruptcy appellate

10 panel to function, because you must have judges from

11 outside the district to sit on the panel, to resolve

12 an issue coming up from a particular district. 

13 The size of the Ninth Circuit makes that

14 possible. Now, in 1990, Congress recognized that the

15 Ninth Circuit had done a great job of this, and gave

16 the circuits encouragement to do this on a broader

17 basis. Several of them have done so, and we have a

18 number of bankruptcy appellate panels. 

19 CHAIRMAN WHITE: Well, how many -- oh,

20 sorry. You can go ahead. Go ahead. 

21 MR. SMITH: I don't mind being

22 interrupted, Your Honor. 
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1 CHAIRMAN WHITE: Well, they do.

2 (Laughter.) 

3 MR. SMITH: Well, in any event, a number

4 of circuits really haven't been able to, because

5 they're small, and they don't have the resources

6 within the circuit. There was a proposal for a joint

7 approach by two circuits that were small. But you can

8 readily see how difficult that would be, which circuit

9 law would you apply on an interpretation of the

10 bankruptcy code. It would be difficult, indeed. It

11 would take the intro-circuit panel dispute to its

12 logical extreme. 

13 In any event, we have something that

14 really works. And to the extent we reduce the

15 resources available, it will be less effective, and

16 perhaps not effective at all. 

17 One of the things that the bath has done

18 is to increase the ability and the stature of the

19 bankruptcy judge in the Ninth Circuit. And I think it

20 has been a very good thing for the bankruptcy

21 practice, generally. And I believe practitioners

22 generally concur in that statement. 
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1 Now, one problem we have, though, is their

2 decisions really don't bind anyone, except the

3 particular litigants. I think you must address this

4 issue. The recent commission tried to address it, and

5 recommended, well, let's just take everything to the

6 circuit. 

7 I have an alternate suggestion that I

8 submitted after I listened to Judge Browning in

9 Tucson, and realized that you were to do more than

10 simply resolve the dispute as to the split of the

11 circuit. And I think it would be very useful, and I'm

12 not reviving the idea of a national court of appeals.

13 That's dead and gone back in the early seventies. 

14 But I am suggesting that we have an inter15 circuit panel of Article III judges that could resolve

16 splits within the circuit without waiting until the

17 Supreme Court ultimately takes those up. Because

18 frankly, bankruptcy appeals really never should wend

19 their way to the Ninth Circuit, unless it's a truly

20 important -- the Supreme Court, unless it's a

21 significant constitutional issue. 

22 That's the only time, like Marathon, or a
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1 case of that nature. There are just statutory issues

2 of interpretation. If we know what the rule is, we

3 can live with it, and apply it, and we don't need to

4 have the Supreme Court spend its time resolving it.

5 We just need a clear statement of law. 

6 And the other thing that's important, if

7 we had binding precedent by statute by the bankruptcy

8 appellate panels, if you can structure that in, it

9 will reduce an enormous amount of litigation. I can't

10 tell you how many thousands of times a year the same

11 issue is litigated because we don't have a binding

12 issue -- or, a binding answer in the circuit. 

13 That's why it's also destructive to the

14 bankruptcy practice to split, or potentially split the

15 Ninth Circuit. Because we now have a large body of

16 bankruptcy precedent which is extremely valuable.

17 People dealing in commerce in the Ninth Circuit, the

18 Pacific rim, in these areas. 

19 We know what many of the issues are,

20 because they've been resolved. We have a large body

21 of precedent. To the extent you split the circuit,

22 you necessarily begin to erode that large body of
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1 precedent that's available, and uniformity. 

2 I realize you can handle it in part as the

3 split of the Fifth Circuit into the Fifth and Eleventh

4 -- they simply adopt it, existing precedent. That's

5 --

6 CHAIRMAN WHITE: Is your time up? 

7 MR. SMITH: I think it probably is. And

8 if I can just conclude with one statement. 

9 CHAIRMAN WHITE: All right. 

10 MR. SMITH: And that is, I think

11 bankruptcy is unique, in that you can best utilize

12 resources in a large geographic area, and with a large

13 workload, because you have economic diversity. And

14 you can therefore put resources where they are needed.

15 Some courts are light, some are heavier. I think it's

16 best done at the circuit level, not at the national

17 level. And that's another reason for a large circuit.

18 CHAIRMAN WHITE: What -- you said that

19 there is nothing that binds any precedent? 

20 MR. SMITH: From the bankruptcy appellate

21 panels, it is not binding on an Article III court.

22 And it, indeed, it is not binding on another
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1 bankruptcy court, except to the extent that they give

2 it deference. We need something to make that binding.

3 CHAIRMAN WHITE: Well, what if it were

4 binding on the bankruptcy court itself? 

5 MR. SMITH: Well, it just has not been

6 interpreted -- 

7 CHAIRMAN WHITE: Well, I know. But what

8 if? What if? Would that help? 

9 MR. SMITH: Yes. It would help very much.

10 CHAIRMAN WHITE: Well then, why not do it

11 that way? 

12 MR. SMITH: It may run into a marathon

13 issue. Because you'll have an Article I court,

14 assuming it's an Article I court. And that would be

15 a determinative decision on the litigants. 

16 Now, it's true that the way it's

17 structured, they have to choose the bankruptcy

18 appellate panel. And maybe that saves -- 

19 CHAIRMAN WHITE: Well, how do you get from

20 -- how do you get from your appellate court to the

21 circuit court? 

22 MR. SMITH: By appeal, Your Honor. And
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1 it's appeal as a matter of right, at this time, from

2 the bankruptcy appellate panel. 

3 CHAIRMAN WHITE: Um hm. And -- but going

4 up there, it isn't on a conflict, is it? 

5 MR. SMITH: No. It is not. So I think

6 you're right, it would probably solve the issue, the

7 marathon type issue. 

8 CHAIRMAN WHITE: Yeah. Yeah. 

9 MR. SMITH: So, it would be very helpful,

10 in my opinion. 

11 CHAIRMAN WHITE: Yeah. All right. All

12 right. So, you -- I was amazed, when I read that

13 report of the -- of your past, this newest report? 

14 MR. SMITH: Yes. 

15 CHAIRMAN WHITE: Just how many -- how many

16 direct appeals would that mean for just the Ninth

17 Circuit? 

18 MR. SMITH: I wish I had those statistics

19 at hand. But I'm sure it's in the hundreds, if not

20 thousands. 

21 CHAIRMAN WHITE: Yeah. 

22 MR. SMITH: Because generally, bankruptcy
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1 attorneys tend to appeal these matters. 

2 CHAIRMAN WHITE: You know -- the

3 bankruptcy court -- 

4 JUDGE BROWNING: I'm the district judge

5 that created the panel for it. They didn't want

6 anything to do with me. (Laughter.) So, I'm not a

7 good one to ask about that. 

8 CHAIRMAN WHITE: Well, I know. But would

9 it help if the -- if the bankruptcy review was binding

10 on you? 

11 JUDGE BROWNING: I think so. Sure. I

12 think it definitely would. And the parties being

13 there by option, I think you're right, would obviate

14 any Article III concern. 

15 MR. SMITH: (Unclear.) 

16 JUDGE BROWNING: I think Professor -- had

17 a question. 

18 PROFESSOR MEADOR: No. That's all right.

19 They passed. 

20 CHAIRMAN WHITE: Dan, there was some

21 suggestion, when we were at the federal circuit that

22 -- there was some suggestion to -- that bankruptcy
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1 ought to be given to the federal circuit. 

2 PROFESSOR MEADOR: Yes. That was in part

3 made. Do you have any views on -- in the appellate

4 realm of bankruptcy cases, routing appeals to the

5 federal circuit, either by petition for leaved appeal,

6 or as a matter of right? 

7 MR. SMITH: Well, I think it would be

8 useful if we could have some court, short of the

9 Supreme Court --

10 CHAIRMAN WHITE: Yeah. 

11 MR. SMITH: -- resolving conflicts, and

12 reaching out on a discretion basis to resolve

13 important issues, so that we can have a binding rule

14 of law. I think it would save a great deal of

15 litigation. Now, whether it's the federal circuit, or

16 an inter-circuit panel created by the existing

17 circuits I don't think is particularly important. I

18 think it -- 

19 CHAIRMAN WHITE: The numbers are just

20 unending, aren't they. 

21 MR. SMITH: Yes. They are. 

22 CHAIRMAN WHITE: Yeah. Well, tough duty.
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1 (Pause.) I screwed up the deal again. 

2 MR. SMITH: I'll sit down quickly. 

3 CHAIRMAN WHITE: (Pause.) Mr. Butler? 

4 MR. BUTLER: Good morning, and thank you

5 for this opportunity. I am an attorney out of

6 Anchorage, Alaska, and I practice in state and federal

7 courts there. 

8 Before coming here to speak to you this

9 morning, I did do some research among my colleagues to

10 try and determine if there was a general consensus.

11 And I did not find one, other than, it seemed to me

12 that one of the concerns practitioners in Alaska did

13 mention was that it took a certain period of time to

14 decisions back from the Ninth Circuit. 

15 And I asked some of them whether they felt

16 that if we in this circuit had our full complement of

17 circuit judges, would that have some impact on how

18 they felt, in terms of decisions coming back. And I

19 believe that that would be something that would assist

20 us in terms of getting decisions back in a timely

21 fashion. 

22 I think it's difficult to judge the
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1 circuit in terms of response time if the circuit does

2 not have its full complement of judges. I have heard

3 other criticisms. And of course, let me say from the

4 onset, I would like to see the Ninth Circuit remain

5 as-is. 

6 One of the things that bothers me

7 personally as a practitioner is, I've heard people

8 complain about some of the decisions that come out of

9 the Ninth Circuit, some of the decisions that the

10 United States Supreme Court, for example, may have

11 reversed. 

12 And while I am not an historian in terms

13 of those decisions, I would say that I think that it's

14 a -- notion for people to complain, in a way, about

15 certain decisions. I mean, when a decision comes down

16 from any appellate court, there's always going to be

17 a certain side that's not going to win. That's just

18 the way it goes. 

19 It happens, even with decisions coming out

20 of the United States Supreme Court. And I think when

21 we start openly criticizing -- in those decisions, I

22 think we tend to erode public confidence in what those
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1 courts are doing. 

2 And so, what I am saying to you is that,

3 certainly, I hope that the recommendation that comes

4 from this Commission will be strong, and will say that

5 the Ninth Circuit should remain as-is. 

6 I hope that this Commission will also

7 indicate that the Congress and the President need to

8 move as quickly as they can to give us our full

9 complement of certain judges. 

10 And I also think that we should make it

11 known that people need to tone down their criticisms

12 of the circuit opinions. If the United States Supreme

13 Court feels that an opinion that comes out of the

14 circuit should be reversed, that case comes before

15 them, they reverse it. Then that's -- what -- how our

16 system is designed to do. 

17 But I have heard too many people openly

18 criticize circuit decisions. And I'm sure there's

19 decisions everywhere that -- many circuits that could,

20 and maybe should be reversed by the United States

21 Supreme Court. 

22 But in terms of people of influence and
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1 power openly criticizing what happens, I feel there's

2 a problem with that, and I'm totally against it.

3 That's my primary concern, in terms of whatever

4 happens with the Ninth Circuit, that should be one of

5 the issues that ought to be toned down. Because there

6 are going to be differences of opinions among legal

7 minds. 

8 I think that -- I hope that the Ninth

9 Circuit remains as one, I guess in a way because I

10 practice here. I've been practicing within the Ninth

11 Circuit for twelve years or so, maybe -- maybe more.

12 And it certainly is easier among practitioners for us

13 to be able to respond in our work to precedents for

14 the circuit that we live in. 

15 It was my understanding that if the Ninth

16 Circuit is split, more likely than not, Alaska will

17 not be a part of it. And that means starting over

18 again, in terms of precedent, really. I mean,

19 certainly we would be able to cite Ninth Circuit case

20 law. But that doesn't mean that we have -- that

21 that's the precedent anymore. 

22 And this type of change involved policy as
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1 a practitioner, because I think it tends to put a lot

2 of -- create certain changes, at least for the states

3 that would be in a different circuit, probably more so

4 than many people realize. Because you have a new set

5 of circuit judges who certainly are going to make the

6 decisions as they see them, which is fine, without a

7 certain precedent other than what has been done in

8 other circuits. 

9 And so that throw, I think, our law for

10 the new circuit up for grabs, in terms of how we

11 approach our work. I think it's going to make it a

12 lot more difficult for those citizens and

13 practitioners who would be in -- a new circuit. And

14 I, for one, would hate to see us re-invent the wheel.

15 Aside from that, those are my views, and

16 that's the information that I wanted to bring. And I

17 certainly, as I had mentioned, I hope you understand,

18 I feel very strongly about some of the criticism of

19 the decisions. 

20 I don't always agree with Ninth Circuit

21 decisions, either. But this business of openly

22 criticizing, and I think back to the case out of New
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1 York, where there was a judge who suppressed some

2 evidence. And it seemed like the whole world came

3 down on that judge for his decision. And that also

4 bothered me deeply. 

5 And it just appears to me that there seems

6 to be more and more of that happening now. And I

7 think it's very, very important to our system of

8 justice is the independence of our judiciary. 

9 And I think even when sometimes

10 we hear people who -- out of Washington, talk about

11 Ninth Circuit opinions, and their disagreements with

12 them. Certainly we can disagree, and talk about

13 disagreements. But to talk about them in a way that

14 brings some disdain for them is a problem. 

15 If there is any questions, I'll -- 

16 CHAIRMAN WHITE: I'll cite to you -- we

17 will question you after this young man over there --

18 Judge Robert C. Broomfield, United States District

19 Court, District of Arizona. 

20 JUDGE BROOMFIELD: Mr. Chairman, members

21 of the Commission -- years ago, I made a major

22 mistake. I was presenting at a trial -- a case. And
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1 it was of some import, at least the plaintiff thought

2 it was some import, because the plaintiffs were after

3 over a billion dollars in damages. 

4 So, I decided that I would set over a

5 hundred motions for summary judgment and related

6 motions, at one time. So, for four and a half days,

7 I heard motions for summary judgment, nine to five.

8 There was a break at lunchtime. 

9 And about this time of the morning, I had

10 a terrible time staying awake. I suspect that's the

11 views that you all have right now, so I shall try to

12 be quick about my views, and not delay you long.

13 (Laughter.) 

14 There are several reasons I have put forth

15 in my statement. I have really three that I would

16 like to -- I characterize myself as a -- circuit

17 person. When I'm not talking about the Ninth Circuit,

18 I think there should be more circuits like the Ninth

19 Circuit -- 

20 The most important reason I believe is

21 that if Supreme Court is to ultimately interpret the

22 national laws, we need less courts of appeals rather
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1 than more courts of appeals. Congress is going to

2 continue to expand the role of federal courts. 

3 I wish it were otherwise. And if we had

4 the time, and I won't take the time, I could give you

5 a precise example with respect to a committee of the

6 United States judicial conference that I used to

7 chair. 

8 But that role has expanded, and is going

9 to continue to expand. Population will increase. The

10 case load of the federal court system is not going to

11 go down. It's not going to stay stable. It's going

12 to continue to rise. 

13 That being the case, since the Supreme

14 Court takes cases from fifty states, and currently

15 twelve or thirteen courts of appeals, depending on how

16 you look at the federal circuit. If you split the

17 Ninth Circuit, or other circuits, and it's inevitable

18 -- you will soon have fifteen, twenty, twenty-five. 

19 There is no limit. And at that point,

20 there is a real question whether we will have a

21 national law that the United States Supreme Court will

22 be able to interpret and pronounce. You will have a
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1 series of regional interpretations of national law

2 that won't get the attention of the Supreme Court that

3 it ought to. 

4 The second and third reasons that I note

5 in my statements are really variations of one another.

6 And they deal with commercial law, business law,

7 maritime law. Not maritime law as I heard referred to

8 this morning, as that discrete body of law. I'm

9 talking about the whole of commercial and business

10 interests of the United States as it interfaces with

11 the western world. 

12 I had a law professor -- Professor Edgar

13 at the University of Michigan. He used to come teach

14 at the University of Arizona in the spring semester.

15 And his view was that for commercial and business

16 interests, it was more important that the law had

17 certainty, that people knew and understood was the law

18 was, rather than a view of whether the law was correct

19 or not. 

20 That may be an over-statement. But he

21 believed very strongly in that certainty. As the

22 current situation on the eastern seaboard, there are
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1 five, or if you want to count the D.C. Court of

2 Appeals -- go over to the Caribbean seven circuits

3 that announce the law, or interpret the law, on the

4 eastern seaboard. 

5 Today, there is one circuit that announces

6 or interprets the law of the Pacific rim. And that's

7 a fundamental change that I think should not be toyed

8 with lightly. Right now, if you go to the port of New

9 York, or Savannah, or Miami, or anywhere on the

10 eastern seaboard, you might have different law to look

11 at, to make an determination as to how you will

12 interface with the rest of the world, and the rest of

13 the world with us. But not so in the Ninth Circuit.

14 The second and the third reason, variation

15 of that is what I call the NAFTA question. I realize

16 NAFTA is a national treaty, in dealing with Canada,

17 the United States, and Mexico. But much of it -- is

18 in the west. And there's going to be more and more,

19 because so much of the country is moving west. We're

20 expanding in the west. 

21 And it's tough enough with the different

22 procedural laws that exist, particularly with Mexico,
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1 not so much with the United States or Canada. We have

2 different interpretation of the law. With more than

3 one circuit on the west coast, it seems to me, does a

4 dis-service to the implementation of that treaty. 

5 I believe this country, and this

6 Commission, as a body to make recommendations to the

7 United States Congress, is really at a crossroads. I

8 think you have to bite the fundamental bullet. I

9 think you should be recommending more consolidation,

10 not proliferation of the United States courts of

11 appeals. 

12 If you have questions, I'd be happy to try

13 to answer them. 

14 COMMISSIONER: Yes. I have. You

15 mentioned consistency of law in the Ninth Circuit. I

16 assume you have to read a lot of Ninth Circuit

17 opinions in the course of your work. Are you saying

18 that you never encounter any inconsistencies in the

19 Ninth Circuit court of appeals opinions? 

20 JUDGE BROOMFIELD: ---- I am not. And you

21 also will notice from my statement that I believe that

22 the Ninth Circuit, indeed any circuit, should be
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1 taking more cases en banc, rather than less. 

2 I think the Ninth Circuit -- en banc

3 process is a very good process. It should be looked

4 at favorably in other circuits. And I think they

5 should take more cases en banc which would deal with

6 the problem of potential inconsistencies. 

7 I realize the impact, court of appeals

8 judges, and several of them -- probably all likely say

9 it. But I think that's important. If there is a

10 distinction that I make between the work of the courts

11 of appeals, it isn't discreetly between announcing the

12 law, and what I call the bulk of their work, of

13 correcting errors -- 

14 But the greater portion -- and if you take

15 cases en banc on the former, it seems to me it avoids

16 the problem of inconsistent law at the same time, if

17 they have much -- a number of -- a lesser number of

18 federal circuits, so the Supreme Court of the United

19 States can truly take on cases -- interpretation of

20 national law. 

21 CHAIRMAN WHITE: So, you would rather --

22 you would rather have vigorous circuits all around the
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1 country? 

2 JUDGE BROOMFIELD: Yes, sir. 

3 CHAIRMAN WHITE: And should -- are you

4 proposing that right now the Ninth Circuit should be

5 left as it is, but say, create some -- some other

6 larger circuits? 

7 JUDGE BROOMFIELD: It may be impolitic --

8 CHAIRMAN WHITE: Or recommend -- ? 

9 JUDGE BROOMFIELD: -- it may be impolitic

10 for me to say so, but as to the Ninth Circuit -- it

11 should not be. As to the latter, I realize there are

12 traditions that are involved, and I think -- the

13 question of consolidation. Because I think you truly

14 are at a crossroads. 

15 Whether we are going to start at --

16 continual splits of the circuits, and that's what's

17 going to happen, if we don't stop it sometime. 

18 COMMISSIONER: Well, does the -- is the

19 alternative to that simply to let every court of

20 appeals grow as large as it will grow in order to

21 accommodate the business? 

22 JUDGE BROOMFIELD: Professor Meador,
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1 that's a tough question. And I've seen statistics

2 that show that in some period of time in the future,

3 I don't know how many years it is, twenty, thirty,

4 that there will be 35,000 appeals out of the courts of

5 appeals. Fifty-thousand -- I don't know -- the

6 numbers. 

7 A whole lot more. And I'm not sure how

8 one deals with that in the future. But if you -- if

9 your only answer to the problem is to continue to

10 split, you are inevitably asking for another layer of

11 courts, or you are accepting regional law, instead of

12 national, federal law. 

13 I don't know how you -- at some point, I

14 suppose, the court can get too big. I don't know what

15 that number is right now. It darned sure isn't

16 twenty-eight -- the circuit, as it is now. 

17 CHAIRMAN WHITE: Could I ask, Mr. -- is it

18 Mr. Butler? Yeah. Do you have any remarks about

19 whether or not the Ninth Circuit ought to be split, in

20 order to provide some judges that knew more about

21 Alaska? 

22 MR. BUTLER: Well, my view on that, Your
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1 Honor is, first of all, I don't have a criticism of

2 the decisions that have come out that -- that some

3 people in Alaska have not liked, in particular, the

4 (Unclear.) -- decision. 

5 I haven't studied enough about Indian law

6 to really make a comment on that. But I think that if

7 we start talking about getting judges on the circuit

8 that know more about Alaska, then of course, you'll

9 have to do that for other states, as well, if those

10 states feel that they may be under-represented. 

11 And so, in that regard, I don't agree that

12 we need to do that. I think that when we -- judges of

13 the Ninth Circuit sit and make decisions, I trust that

14 they make those decisions wisely with thought, and

15 judgment. And the decisions that they make -- all --

16 (Unclear.) 

17 CHAIRMAN WHITE: And there -- there must

18 be some lawyers in Alaska that know quite a bit about

19 Alaska. 

20 MR. BUTLER: There are, Your Honor. 

21 CHAIRMAN WHITE: And it looks to me like

22 they are -- they ought to educate these green-horn
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1 judges. 

2 MR. BUTLER: I agree, judge. I think that

3 is our job to do that. 

4 CHAIRMAN WHITE: Yeah. 

5 MR. BUTLER: And maybe that's what we need

6 to put more focus on. 

7 CHAIRMAN WHITE: Yeah. Yeah. 

8 COMMISSIONER: As a practitioner, what

9 difference would it make to you in your work if the

10 circuit were divided? 

11 WITNESS: Well, Your Honor, I think in

12 terms of research, and providing our district court

13 judges with precedent, we certainly -- I don't think

14 that they would be required any more to follow Ninth

15 Circuit precedent if we were in a different circuit.

16 It's my understanding that if the circuit

17 were to split, we would be in the Twelfth Circuit.

18 And so, I think that certainly would create more call

19 for litigation -- would be required, then, I think to

20 research properly all of the circuits, to present to

21 our new circuit what we feel should be the precedent.

22 And realizing that the decisions that the
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1 district court judges in that new circuit would be

2 making would be forming at least a foundation for new

3 circuit precedent. So, it certainly would be

4 substantially more costly for clients to live in a new

5 circuit, and then have to, I think, start all over. 

6 If I didn't mention it, I am currently one

7 of the -- reps for the Ninth Circuit, and I've been

8 chairman this year. And I'll be giving that up in the

9 course of the next month. But it's been a good -- a

10 good month. 

11 CHAIRMAN WHITE: Well, thank you. 

12 MR. BUTLER: Thank you. 

13 CHAIRMAN WHITE: Any more questions? 

14 COMMISSIONER: Not from me, sir. 

15 CHAIRMAN WHITE: I think we are through

16 for the -- aren't we? Not for the day, but -- to go

17 to lunch. 

18 STAFF: This hearing is dismissed. And we

19 will take up again at 1:30 this afternoon. 

20 (Whereupon, a lunch recess was had.)

21

22
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1

2

3 A-F-T-E-R-N-O-O-N S-E-S-S-I-O-N

4 (1:30 p.m.)

5 JUDGE GOODWIN: (Recording begun in mid6 sentence.) -- distinguished members of this panel, I

7 just want to talk about a very few points. Because we

8 all heard some good speeches this morning, and much of

9 which I agree with. 

10 I want to mention a quality problem. We

11 are criticized in the circuit for being too big. And

12 one of the criticisms is that we have -- that size

13 creates delay. 

14 I disagree with that. I don't think size

15 has anything to do with delay, except possibly in the

16 Clerk's office, when we get a big backlog of civil

17 cases, we don't get them set down on calendars. And

18 right now, that delay, in that -- that pre-argument

19 delay is caused by not being up to strength on our --

20 assigned strength in judges. 

21 If we were at our assigned strength, we

22 would probably be pretty close to current. The other
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1 point is collegiality. I never had the privilege of

2 being on the Oregon football team. But they had about

3 42 people on the bus. And I don't think anybody who

4 was not a member of that team should have criticized

5 them for not being collegial. I thought they were

6 quite collegial. (Laughter.) 

7 On intra-circuit consistency, again, I

8 don't think size has anything to do with it. If we

9 made better use of our en banc apparatus, we could

10 maintain consistency of decisions. We are

11 inconsistent in a couple of areas, partly because they

12 don't seem to be important enough to cause the court

13 to want to go en banc over them. 

14 One problem is that we -- we dispose of a

15 lot of cases with unpublished memoranda. These

16 infiltrate into the reporting systems. These

17 unpublished memoranda create mischief, but they don't

18 get taken en banc, because they're not authoritative,

19 and they're not -- they're not precedent. 

20 UNIDENTIFIED: (Sound interruption.)

21 Pardon me. 

22 JUDGE GOODWIN: I'm sorry. I didn't
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1 realize that Judge Rymer -- my good friend, with whom

2 I love to sit on three-judge panels wasn't tuned in

3 yet. But I didn't say anything, Pam, that you missed.

4 JUDGE RYMER: That's okay. I think when

5 you said I wasn't tuned in, you've already said

6 enough. (Laughter.) 

7 JUDGE GOODWIN: I just want to say that if

8 we have a very good system, which has worked for

9 fifteen or -- more than fifteen years, since we

10 started the en banc -- reduced size en banc court. 

11 And Professor Helman, I've mentioned this

12 in my written material, and I'm not going into all the

13 detail. But Professor Helman wrote a very good piece

14 on this. And he discovered that there is very little

15 intra-circuit conflict that isn't taken care of by the

16 en banc court. 

17 In the areas of immigration and social

18 security, those cases don't get taken en banc, because

19 they don't attract enough attention. But those are

20 areas that are very fact-specific. And it's difficult

21 to find any explanation for the fact that different

22 panels sometimes see those in different ways. 
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1 The cultural dissonance between the urban

2 -- the urban centers of southern California, Arizona,

3 Las Vegas perhaps, and the rural, or more spread out

4 areas of Montana, and Alaska, and Oregon, I don't

5 think that's a cause of weakness in the circuit. I

6 think it's a cause of strength. 

7 It gives us a great deal of diversity.

8 And we have judges on our court from places like south

9 Montana, and Prineville, Oregon, and Beverly Hills,

10 and San Francisco. And Las Vegas, and Phoenix. 

11 And it gives us a tremendous amount of

12 diversity and strength. And I think we've mobilized

13 that diversity in dealing with about a fifth of the

14 federal litigation in the United States. With the

15 bankruptcy, I think even more than that. 

16 Finally, on the -- where we are headed.

17 We know where we've been. And we've come a long way.

18 The first time Judge -- Chief Judge -- wanted to split

19 the Ninth Circuit was in 1937. About thirty years

20 later, the Ruske Commission took a look at it. And

21 now, about another thirty years have gone by. We're

22 still talking about it. 
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1 But except for the problem that Judge

2 Kleinfeld mentioned in his paper about the judges not

3 being able to read all of each other's opinions, I

4 don't think size has anything to do with our problem.

5 I sat for nearly ten years on the Oregon Supreme

6 Court. Seven judges, we all read each other's

7 opinions before they were filed. 

8 And I don't think we're going to turn the

9 clock back to those good old days, where we can all

10 sit around, and read each other's opinions, not matter

11 how big -- or how small the circuit is. 

12 CHAIRMAN WHITE: And then forget them. 

13 JUDGE GOODWIN: (Laughs.) Yeah. And then

14 dis-regard. Except for the -- there is talk of

15 dividing up administratively, into regions. We tried

16 that in the 70's. And Judge Kilkenny, and Judge

17 Wright, and Judge Skopil, and I, sat in Seattle, and

18 Portland, and heard a lot of cases. 

19 And we found, within five months, we were

20 starting to decide cases differently than Walter Ely,

21 and Shirley Hofstaedler, and some of our dear friends

22 down in the south who are deciding the same kinds of
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1 cases. And we -- we've got -- we had a court meeting.

2 We were going to let this experiment run six months.

3 We had a court meeting in five months, and

4 called a halt to it, because our collegiality was

5 wearing out, and our consistency was becoming

6 threadbare. So, I -- we had a century -- the first

7 century in this republic when we had a two-tiered

8 system of courts. And then, the century, after 1891,

9 was three tiers. And now there's talk about possibly

10 four tiers. 

11 I'm bearish about that, because of the

12 expense. I mean, the expense now is pretty

13 substantial. And if we went to four tiers, judiciary,

14 I think it would be too much. 

15 The other -- another point that's been

16 raised is specialized courts. And the lawyers who

17 will still talk to me after I've been a judge for 43

18 years are all bearish about specialized courts. I

19 don't know whether it's their experience with

20 administrative agencies, or a combination of things.

21 But while I have great respect for the tax

22 court, and I think that is a successful specialized
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1 court, I don't know how, while that could be

2 duplicated in other areas of professional concern. At

3 least the lawyers that talk to me are not in favor of

4 much experimentation along that line. 

5 And in conclusion, I just strongly believe

6 that the burden of proof is on those who think that

7 the system can be improved by changing certain

8 boundaries. And I don't think they have demonstrated

9 proof. 

10 I'll be happy to answer questions after my

11 turn. 

12 CHAIRMAN WHITE: Thank you. 

13 JUDGE SKOPIL: Justice White, Judge Rymer,

14 Judge Browning, and Professor Meador, I am indeed

15 pleased that I've been invited to testify at this

16 Commission hearing. I deem it not only an honor, but

17 a privilege. 

18 I am hopeful that my experience of having

19 served on a long range planning committee for five

20 years, and the long range plan which was adopted by

21 the conference will be of some assistance to the

22 Commission in this awesome challenge that you have. 
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1 My remarks, strange as it may seem, will

2 be generally directed to the courts of appeal

3 throughout the country. And I will specifically

4 mention the Ninth Circuit only in that you have been

5 directed specifically to give it special treatment. 

6 And also because I sincerely believe that

7 the Ninth Circuit has been, and will continue to be,

8 if it is maintained in its present stature, as a great

9 contributing factor to the federal courts of appeal.

10 I -- for five years, I was involved as

11 chairman of the long range planning committee. And

12 during that time, we had outstanding assistance from

13 three consultants. Reese Rosenberg, during his

14 lifetime. Dean Tom Mengler, of the University of

15 Illinois. And Jeffrey Jackson, who was a former

16 judicial fellow, and now teaches at the Mississippi

17 Law School. 

18 In addition to that, we had great

19 assistance from our staff at the administrative

20 office, from the federal judicial center, under Russ

21 Wheeler's tutelage. And also, that we received great

22 assistance from people from the private sector, and
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1 long range planning futurists. 

2 We also received contributions from over

3 200 individuals, and 62 national associations, as well

4 as having had public hearings throughout the country,

5 as well as the numerous meetings with members of both

6 the state and the federal judiciary.

7 And that is why my experience, I feel,

8 hopefully will be of some help to this Commission. 

9 I intend to first offer my thoughts and

10 suggestions, and then I will outline the reason why I

11 make those -- I present those thoughts and suggestions

12 to you. 

13 First of all, I do oppose splitting the

14 Ninth Circuit. Secondly, I oppose any immediate re15 alignment of any of the circuits. And third, if re16 alignment is deemed necessary by this Commission, then

17 I suggest that larger circuits, rather than smaller

18 circuits, would be my preference. 

19 And fourth, I favor mechanisms which will

20 in some way control the number of appeals that are

21 coming into the circuit courts. 

22 Now, the reasons for my suggestion that
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1 the Ninth Circuit should be maintained in its present

2 status is really two-fold. First of all, I think it

3 will serve as a pilot, and as a guide to other

4 circuits, as they increase in size. Projections would

5 lead us to believe that they will increase in size. 

6 And also, by comparison, I think the Ninth

7 Circuit has performed far above any of the other

8 circuits in the country. I personally have never read

9 nor heard any valid reason for splitting the Ninth

10 Circuit. 

11 It seems logical to me, as the long range

12 planning committee suggested in its recommendation

13 seventeen, that re-structuring or re-alignment should

14 not occur unless there is reliable empirical evidence

15 that demonstrates a dysfunction either in the

16 adjudicative or the administrative process of the

17 court. Which would, in effect, prohibit or prevent

18 the circuit from administering a high quality of

19 justice, and coherent and consistent circuit court

20 law. 

21 That is hardly the situation as far as the

22 Ninth Circuit is concerned. As far as production is
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1 concerned, they rank third among all of the circuits

2 in the United States, as far as merit determinations

3 per judge, 518. Only the Fifth and the Eleventh

4 Circuit have exceeded that number in per judge

5 determinations. 

6 I think it's interesting to note that the

7 three largest circuits, as far as filings are

8 concerned, are the most productive circuits. The

9 administrative function of the Ninth Circuit is more

10 adequately presented, I think, in the Ninth Circuit

11 paper, which I just read this morning. 

12 But it seems to me that the Ninth Circuit

13 has really been a leader in the administrative -- in

14 the function of the courts. First of all, they are

15 the only ones to develop a long range plan. That long

16 range plan was actually developed before our long

17 range plan for the United States judicial conference

18 was created. 

19 The have originated and used bankruptcy

20 appellate panels, a process which I think now has been

21 recognized throughout the United States as a leader in

22 that type of appeal. They are -- we have used
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1 extensively alternate dispute resolution processes. 

2 We have originated a unique computerized

3 issue tracing system, which I think has been very,

4 very beneficial, and certainly one that I think will

5 be copied in the future by other circuits. 

6 And we have created, and are presently

7 using an appellate commission. I think, as I say,

8 many of the innovative procedures that have been

9 developed by the Ninth Circuit are more than

10 adequately presented in the paper presented to this

11 Commission by the Ninth Circuit judicial council, and

12 by the Ninth Circuit court. 

13 Re-alignment and restructuring, if we use

14 the -- the long range planning committee developed, in

15 its recommendation number seventeen, I can't see that

16 there is any dysfunction among any of the circuits in

17 the United States. 

18 And if the Commission concludes that some

19 re-alignment is necessary, I suggest larger, rather

20 than smaller circuits. Presently, I can only think of

21 two logical reasons why you would want to restructure

22 any of the circuits. 
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1 But one being that their workload among

2 the active circuit judges is very, very

3 disproportionate. The D.C. circuit last year had 214

4 merit decisions per judge, as compared to -- or, I

5 should say, that they had that -- that they filed that

6 many dispositions. 

7 While the Eleventh Circuit filed 792

8 dispositions per judge. A great contrast, and one

9 that would indicate that perhaps there has to be some

10 mechanism established to equalize the workload among

11 circuit judges. 

12 The other is that certainly a lesser

13 number of circuits would indicate to me, at least,

14 that there would be lesser number of conflicts between

15 the circuits, and a greater opportunity for the

16 Supreme Court to resolve those conflicts, knowing now

17 that they do not have sufficient time, actually, to

18 resolve all the conflicts between the circuits. 

19 If it's necessary to go ahead and re20 align, then I would think that the best standard to

21 apply would be based upon the filings in the circuit.

22 And it appears to me that you're going to be
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1 confronted with either the filings in the Fifth, the

2 Eleventh, or the Ninth Circuit. And those filings are

3 relatively close, as far as numbers are concerned. 

4 Controlling appeals, the number of

5 appeals, I think it's very apparent to all of us that

6 one of the main concerns that we have, and the reason

7 that we're here, is the tremendous increase in

8 caseload over the last -- well, since I've been on the

9 court, over the last 25 years. 

10 And certainly that substantial increase I

11 think has come about principally as a result of

12 Congressional acts. In the last twenty years, they

13 have enacted some 202 statutes which have a direct

14 affect upon the work of the courts of appeal. 

15 It seems to me that in determining what

16 the structure of the court should be that it would be

17 necessary to determine what the work of the courts

18 would be. I don't think you can divorce workload from

19 structure. I think you have to go ahead, and

20 determine what the workload is in order to go ahead,

21 and provide a competent structure, to go ahead and

22 take care of the workload. 
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1 I think there are many statistics.

2 Statistics are -- I think you're at risk if you rely

3 on statistics, as far as projections of the future are

4 concerned. But we certainly know that in 1940, I

5 think there were some 300 -- or, some 3,000 appellate

6 filings. And as compared to, what '94? I think

7 somewhere over 52,000 filings. 

8 If we based upon the last 55 years of our

9 experience, if we could rely on those as far as the

10 future is concerned, I think we would all be so

11 startled that it would be almost unbelievable to us.

12 Because if that happens, of course, we

13 could have -- I think the projections would say, as

14 many as over 500 appellate judges. I'm hopeful that

15 that does not happen. And as I say, I think we are at

16 risk if we rely on future projections. 

17 We do list future projections in our long

18 range planning situation. And the reason we do is not

19 so much to rely on the fact that there are going to be

20 that many cases filed, but the fact that we need

21 planning. We do have to plan for the future. And I

22 think those statistics and projections will indicate
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1 the reason for that. 

2 I suppose the whole problem in my mind

3 could be solved if we could go ahead and have

4 discretionary review in the courts of appeal. I

5 question whether that's going to happen, but that

6 would be a solution that certainly would -- many of

7 our concerns of today. 

8 If we cannot have the entire discretionary

9 review, then I think we should have some sort of a

10 limited review of appeals that raise only factual

11 errors. 

12 And third, that we should create and

13 expand the role of the appellate commissioner. Our

14 appellate commissioner has done an enormous amount of

15 work for us. Last year, he had -- somewhere around

16 2,000. Which of course then relieves the judges for

17 their main responsibility of resolving and deciding

18 conflicts. 

19 I would like to make specific reference to

20 the long range plan, and principally at pages fifteen

21 and sixteen, which goes into projections. Also,

22 chapter three, which deals with alternative -- with
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1 the alternative future. Chapter five, which deals

2 with structure. And chapter ten, which in effect is

3 confronting the alternate future. 

4 With that, I really am -- have nothing

5 more to say. I think we are all reluctant -- I think

6 human nature being what it is, we're reluctant to

7 accept change. I think the legal profession is

8 particularly wrong with that, and I think the

9 judiciary is even more -- with that. 

10 But regardless of our reluctance to accept

11 change, it's here. And we have to go ahead, I think,

12 the bar and the judiciary has to have sufficient

13 flexibility to go ahead, and cope with those changes.

14 Because I'm sure that we're not going to change -- 

15 With that, I really thank you for the

16 opportunity to appear here, and to have testified. I

17 said, having chaired that long range planning

18 committee, that I don't relish your responsibility.

19 But I think your decisions will determine largely what

20 the future courts of appeal will be to our nation. 

21 So, with that, I say thank you very much.

22 CHAIRMAN WHITE: Thank you. Should we
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1 question him first? 

2 UNIDENTIFIED: Sure. Either one. Do you

3 want to -- ? 

4 CHAIRMAN WHITE: Judge Skopil, has the

5 judicial conference got committees that you think will

6 keep planning? 

7 JUDGE SKOPIL: Well, I can answer that

8 with some hesitation. I think maybe -- I think maybe

9 Judge Browning was on the conference at the time this

10 whole matter came before the conference. I strongly

11 advocated that the long range planning committee work

12 continue. 

13 Because I don't think the plan itself is

14 as important as the planning concept. 

15 CHAIRMAN WHITE: Yeah. 

16 JUDGE SKOPIL: The conference decided not

17 to continue the long range planning committee, and

18 delegated that responsibility principally to the

19 conference committees, under the supervision of the

20 executive committee of the conference. 

21 CHAIRMAN WHITE: Hmm. 

22 JUDGE SKOPIL: So, they -- they are -- I
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1 don't know how effective it's been. But they are, in

2 effect, doing their future planning in that forum. 

3 CHAIRMAN WHITE: So, if you don't know, we

4 certainly don't know whether -- whether they are --

5 are doing what you would call planning for the future.

6 JUDGE SKOPIL: I do not know the answer to

7 that, Justice White. 

8 CHAIRMAN WHITE: As to --

9 JUDGE SKOPIL: I wish that I did, because

10 I feel strongly -- one lesson I learned, and I might

11 say, when I entered into that situation of long range

12 planning, I knew absolutely nothing. But the one

13 thing I did learn, from talking with the futurists,

14 and the long range planners from the private sector,

15 the plan isn't the important thing. It's the planning

16 concept that is the important thing. 

17 CHAIRMAN WHITE: Yeah. Dan? 

18 PROFESSOR MEADOR: Judge Skopil, we have

19 had suggestions along the way at previous hearings

20 that one way to go to relieve pressure on the courts

21 of appeal is to shift some of the reviewing function

22 to the district level, having what you might call
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1 district court appellate panels, somewhat by analogy

2 to the bankruptcy appellate panels, in which you would

3 have panels of either three district judges, or two

4 district judges and one circuit judge, sitting to

5 review certain categories of cases. 

6 Not necessarily everything, but diversity

7 cases was suggested as one, sentencing appeals was

8 suggested as another. And there could be other

9 categories. And once that panel had decided that

10 level of review, then review thereafter in the courts

11 of appeal or questions of law would be by petition for

12 leave to appeal, discretionary with the courts of

13 appeals. What is your general reaction to that idea?

14 JUDGE SKOPIL: That idea was discussed in

15 chapter ten of the long range plan for an absolute --

16 COMMISSIONER: What was -- 

17 JUDGE SKOPIL: Professor Meador was a

18 great contributor of that long range plan, as was

19 Judge Browning. 

20 COMMISSIONER: As I recall, you didn't

21 endorse the idea of those.

22 JUDGE SKOPIL: We did not endorse that.
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1 You're absolutely -- 

2 COMMISSIONER: And I'm wondering what your

3 view of it now would be. 

4 JUDGE SKOPIL: Well, you want to remember

5 that there were four district judges on that long

6 range planning committee. I think conceptually, the

7 idea is worth exploring. Because there are so many

8 cases that come before us, that really should not be

9 before the circuit. And you have outlined, I think,

10 some of the areas. 

11 One other area that I think is -- it's

12 almost criminal to me the amount of reviews that the

13 social security, disability cases get. They get more

14 reviews than the capital punishment cases. And all

15 we're reviewing is the factual matter, whether there's

16 substantial evidence to go ahead, and justify the

17 findings of the administrative judge, or the board. 

18 So, there are many areas that I think that

19 would be appropriate. Having been a district judge,

20 I am not too sure that they would necessarily agree

21 with that. I think their workload is sufficiently

22 heavy. Probably they don't want to take on any more.
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1 But again, as I said before, I think with

2 the changes we have, I think the judiciary, as well as

3 the bar, has to be more flexible in their approach to

4 these problems. 

5 CHAIRMAN WHITE: Dan, didn't we get a

6 request to meet with the judicial conference committee

7 on case management? 

8 PROFESSOR MEADOR: Two committees, a

9 federal state committee, and case management

10 committee. And we are meeting with them in June. 

11 JUDGE SKOPIL: The one disappointment --

12 I am speaking, and you haven't even asked me a

13 question, but this has been on my mind. The one

14 disappointment I think the long range planning

15 committee encountered was that I did initially contact

16 members of the Senate and House Judiciary Committees,

17 as well as the Executive branch, not only requesting,

18 but soliciting contributions from them. 

19 I am hesitant to say, but the truth is

20 that we received actually no assistance from either of

21 those two branches of government. We did -- Attorney

22 General Reno did appoint a liaison with the committee,
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1 who never attended a committee meeting. 

2 We were -- I was given the benefit of an

3 audience with Senator Hatch, Senator Heflin, and

4 Congressman Hughes. And I did have an appointment

5 with Senator Biden, who then chaired the Judiciary

6 Committee, but wound up talking to his staff. 

7 So, that was -- that was a disappointment

8 to me. Because -- 

9 CHAIRMAN WHITE: Yeah. 

10 JUDGE SKOPIL: -- the long range -- the

11 proposed long range plan, and the long range plan

12 itself, was circulated to every Member of Congress.

13 So, there were two separate -- two separate documents

14 that they received. And absolutely no response. 

15 It was amazing to me that Senator Gorton,

16 who never contributed anything, or never raised any

17 questions about the long range plan, now indicates his

18 desire in this situation. 

19 CHAIRMAN WHITE: Yeah. Go ahead. 

20 COMMISSIONER: Judge Skopil, as I

21 understand it, you think the Ninth Circuit's size is

22 no impediment to its positioned operation at the
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1 present time. And if there were going to be

2 alignments driven by case loads, you would prefer more

3 jumbo circuits, I don't use that pejoratively, rather

4 than fewer circuits. 

5 Is there a point at which a circuit can

6 too big? And if so, what is that point? 

7 JUDGE SKOPIL: You know, that's like ask

8 -- that's why I like relying on projections as to what

9 the future's going to be. I can't answer that. I do

10 know that based upon what we had before us at the long

11 range planning committee state, that we felt presently

12 there was no need to restructure or split the Ninth

13 Circuit. 

14 I still feel that's true. Strange as it

15 may seem, our projections have not proven to be true.

16 The projections of caseload have not been as rapid as

17 we anticipated. And I'm thankful for that. 

18 Somewhere along the line, and I was here

19 this morning when Justice White asked the question,

20 how do we keep Congress under control? I don't know

21 of any reason. (Laughter.) It just seems to me,

22 however, that if the citizens of our country knew that
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1 we have two judicial systems running along parallel

2 with one another in many areas, that they would be

3 very upset about it. 

4 They're paying taxes for two systems that

5 actually, in effect, are doing much the same thing.

6 Many of the remedies of those 202 acts of Congress are

7 already available in the state courts. But I don't

8 know. My response, when I visited with the members of

9 Congress was that if it was not politically acceptable

10 at home, well, they didn't really want to talk about

11 it. 

12 JUDGE RYMER: Judge Skopil, do you have

13 any thoughts about -- markers that might be used to

14 measure whether a court is so dysfunctional that it

15 isn't delivery quality justice? 

16 JUDGE SKOPIL: Well, I think I'd rely on

17 your judgment, Judge Rymer. I think that's very

18 easily ascertainable. I think just from what you

19 would view a circuit doing would reveal that. I don't

20 have any particular -- 

21 JUDGE RYMER: Well, we've heard from a

22 number of people who say, for example, that the
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1 decreasing availability of oral argument, or the

2 increasing incidence of dispositions that are quite

3 summary, or unreasoned, and the increased number of

4 unpublished dispositions which may tend to have -- or

5 suggest inconsistency in the law of the circuit, are

6 troubling to the bar, and to some judges elsewhere in

7 the country. 

8 And I'm not talking particularly about the

9 Ninth Circuit. I'm just saying in general. Certainly

10 those are trends that one could perceive going on

11 elsewhere, as well as in the Ninth Circuit. Should we

12 be troubled about those things? Is there a limit

13 beyond which circuits, or courts of appeals shouldn't

14 go, in those directions, and still -- still stay on

15 the correct side of dysfunction? 

16 JUDGE SKOPIL: Well, I'm going to answer

17 that from my own experience on the Ninth Circuit, and

18 as well as the knowledge that I have acquired from the

19 way that the Fifth and the Eleventh Circuits handle

20 their matters. 

21 I think it's very apparent that there are

22 many, many appeals that come before the circuits that
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1 really deserve little or no attention. And I think

2 that it's a waste of time to these circuit judges to

3 spend a lot of time on matters where there is case

4 precedent already. And thus ignore what -- the

5 responsibility of matters which are of great

6 importance to the economy of the country, and to the

7 individual rights of individuals. 

8 So, the -- from that standpoint, the

9 unpublished opinions do not bother me. The lack of

10 oral argument in certain cases does not bother me.

11 With reference to inconsistencies in -- decisions

12 within the circuit, I do not believe that's true. 

13 Judge Goodwin mentioned Arthur Hellman's

14 book, or actually, chapter of a book. And I think

15 that probably -- and I think Professor Meador

16 acknowledged that in the chapter that he wrote in that

17 same book. That probably has been the most thorough

18 study of inconsistencies or conflicts within circuit

19 decisions of any made. 

20 And he was very explicit in saying that

21 that was not a problem within the Ninth Circuit. So,

22 the inconsistencies do not bother me. The lack of
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1 time between filing and disposition has been answered,

2 I think, by Judge Goodwin. It's interesting to note

3 that the Ninth Circuit is not the last, as was

4 represented here this morning, between filing and

5 disposition. 

6 I think we're maybe third from the bottom

7 of that list. But we are either number one or number

8 two, according to my recollection, of the time from

9 argument to disposition. Which certainly indicates

10 that the big problem is that even though their case is

11 ready for argument, there aren't sufficient panels to

12 hear them. 

13 And that is largely attributable to the

14 vacancies that we've had on our court. We have sort

15 of computed in our own mind that, had all our

16 vacancies been filled, we would have had 100 more

17 panels each year, annually, to decide these cases.

18 And that certainly would make a big difference, as far

19 as the backlog from filing to argument. 

20 I don't know whether I've answered all

21 your questions or not, Judge Rymer, but I hope that I

22 have. 
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1 JUDGE RYMER: Thank you. Appreciate it.

2 COMMISSIONER: What do you think of two3 judge panels? 

4 JUDGE SKOPIL: What do I think of them? 

5 COMMISSIONER: Yes. 

6 JUDGE SKOPIL: I think there's certain

7 types of cases where two-judge panels would be

8 sufficient. I think in other types of cases, even

9 maybe a one-judge review would be sufficient. We're

10 talking about classification of cases, however. But

11 I do feel that that's an area to explore. And I think

12 -- I think at least from my experience, I think

13 there's certain cases that need no more than even a

14 two-judge or a one-judge review. 

15 CHAIRMAN WHITE: What, for example, would

16 you say a two-panel would be sufficient in your mind?

17 JUDGE SKOPIL: I think any question which

18 involves a factual issue does not need three-judge

19 decisions. 

20 CHAIRMAN WHITE: Yeah. Yeah, well -- 

21 JUDGE SKOPIL: And that -- that comes

22 principally, a lot, from administrative appeals. 
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1 CHAIRMAN WHITE: Yeah. Well, that's a lot

2 of cases. 

3 JUDGE SKOPIL: It's quite a few cases.

4 But on the other hand, in most situations, the

5 standard of review is very explicit. 

6 CHAIRMAN WHITE: Yeah. 

7 JUDGE SKOPIL: And if you apply that

8 standard of review, the outcome seems very obvious. 

9 CHAIRMAN WHITE: Yeah. Thank you. 

10 JUDGE SKOPIL: Thank you. 

11 CHAIRMAN WHITE: Thank you. (Pause.)

12 Judge Boochever? Welcome. 

13 JUDGE BOOCHEVER: Thank you, sir, Justice

14 White, members of this distinguished Commission. I

15 think it might be appropriate if I gave you a little

16 of my background before proceeding, because it does

17 give me somewhat of an insight, maybe a little

18 different from most of the other judges that have

19 appeared before you. 

20 When I got out of the service in January

21 1946, I went to Alaska as assistant U.S. attorney.

22 After that, I was in private practice in Alaska for 25
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1 years, mostly in trial work. And then, I went on to

2 be on the Alaska Supreme Court from 1972 to 1980.

3 And I served during part of that time as chief justice

4 in charge of the administration of that huge state. 

5 Then, I was appointed as the first Alaskan

6 on the Ninth Circuit Court of Appeals in 1980. So, I

7 do bring an Alaskan perspective, I guess, to my view

8 of the court. And when I first went on the court, I

9 had the idea it was too large, and that it should be

10 divided. 

11 But after serving on it, and seeing the

12 innovations that were made, and the different steps

13 that were taken, so that there would not be

14 inconsistency of opinions between the panels, I became

15 convinced that a large circuit, and particularly the

16 Ninth Circuit, did work, and worked well. 

17 I might say just as an aside, when we were

18 in -- I was in the territory, all of our appeals went

19 to the Ninth Circuit. And I argued numerous cases

20 before different panels. And I'm particularly

21 reminded of one cases I had, in which the panel was

22 not at all as attentive and kind as this panel is. 
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1 The case -- cases normally were assigned

2 to San Francisco. And we'd go down there to argue,

3 which was a long trip in those days, from Alaska. And

4 this one particular case I had was assigned to

5 Portland, instead of San Francisco. 

6 And I arrived, and was all ready to argue.

7 And my opposing had gotten into the habit of going to

8 San Francisco, and had gone to San Francisco. So, the

9 panel was kind enough to postpone the argument to the

10 following day. 

11 Well, the following day, we got there.

12 And opposing counsel, after having already been to San

13 Francisco, and now back at Portland, started his

14 argument. And one of the judges on the panel asked

15 him a question. And he responded. 

16 And the judge said, "If that's your

17 answer, that's all I want to hear." So, my opposing

18 counsel said, "Well, do you mind if I go on with my

19 argument?" The judge said, "You can if you want to."

20 The -- my opposing counsel proceeded to

21 argue. The judge took out a newspaper, and read it

22 for the entire time. I might say that that occurred
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1 when there were much fewer judges on the Ninth

2 Circuit. And I'm sure you wouldn't get that kind of

3 a situation today. 

4 In 1980, when I was appointed, there were

5 3,738 appeals filed. And at that time, we had already

6 reached the limit -- the limit that we have now, of

7 twenty-eight active judges, and all of them were

8 participating. In 1997, there were 8,649 appeals

9 filed, and we had only seventeen active judges most of

10 the year, during the vacancies. 

11 This was an increase of over three hundred

12 percent. And if we had a full complement of judges,

13 it would still be an increase of over two hundred

14 percent. I think that the circuit has coped with this

15 situation amazingly well because of various

16 innovations that they've made. 

17 Now, I know that different judges have

18 already spoken about these innovations. And I think

19 you've heard enough about them. And I'm not going to

20 go into them in detail. We do have three

21 administrative divisions, which help handle the

22 administration of the courts a great deal. 
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1 And we -- I think, with a limited en banc,

2 we have practically eliminated inconsistent decisions,

3 as far as published decisions are concerned. 

4 So, I don't think those are any good

5 arguments any more for breaking up the circuit.

6 Another argument that is made is in regard to

7 collegiality. I remember the warm welcome that I

8 received when I first went on the court, and

9 particularly from some of the judges who were

10 appointed by Presidents from a different party from

11 the one that appointed me. 

12 Among those, I can remember Judge Kennedy,

13 now Justice Kennedy, taking a good deal of his time to

14 explain the workings of the court. And various other

15 judges, likewise, who were very kind, and made me feel

16 very much at home. 

17 I think that the size of the circuit has

18 nothing to do with collegiality. Most of the

19 communications are made through E-mail now. And there

20 are full discussions of issues, particularly when

21 cases are coming up for en banc consideration. And

22 the memos go into very serious discussions, and also
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1 have a certain amount of jokes, and a certain amount

2 of good-natured jostling back and forth. 

3 So that you get that collegiality that you

4 might not get in a much smaller court. In fact, I

5 know that the United States Supreme Court has had

6 occasions where some of the justices wouldn't talk to

7 other justices. So, I don't think the size has much

8 to do with collegiality. I think it's more with the

9 personalities involved, and how they handle the types

10 of cases that they have. 

11 I believe that the main push for division

12 of the Ninth Circuit has arisen from certain

13 controversial cases that have been decided. These

14 cases usually involve economic interests, and strong

15 divisions of opinion. 

16 I can recall the spotted owl case

17 involving environmental considerations in Oregon.

18 This was a case that affected the timber industry.

19 And many people felt very strongly about it. Yet, one

20 of the judge who -- on the panel that decided it for

21 the Ninth Circuit was a former Supreme Court justice

22 of Oregon. 
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1 Similarly, in the State of Washington,

2 there were fishing rights cases. The case of

3 Washington against the Guinoic Tribe of Indians, and

4 other tribes. And that case was a very long,

5 protracted case. 

6 And the final decision was made, giving

7 certain rights to the Indian tribes to fish. And

8 this, again, raised a great storm of protest. 

9 Yet, the panel that decided that case that

10 two judges from Oregon on it, one a district judge

11 sitting by designation, and the other a circuit judge.

12 So, regionality, or the size of the circuit, was not

13 really of consideration. 

14 Now, I do believe there have been a few

15 cases in Alaska where there has certainly been

16 suggested among Alaskans that the judges were not

17 sufficiently acquainted with some of the peculiarities

18 of that huge state. 

19 One case involved an Alaska legislated

20 definition of rural. And the panel that decided the

21 case equated rural with what is rural in the lower

22 states, namely agriculture, and grazing land. And
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1 there were those in Alaska who perceived that this was

2 a mis-understanding of the local situation. 

3 Another case that brought a lot of

4 criticism was a recent case involving a decision as to

5 whether local Indian groups could be considered as

6 Indian country, having legislative powers over the

7 area involved. 

8 There were strong protests when the Ninth

9 Circuit panel held that there were Indian country.

10 And then, this was reversed by the United States

11 Supreme Court. And I understand that recently, there

12 have been Indian groups that have been strongly

13 protesting about the reversal. 

14 So, I think when you get highly

15 controversial cases, one is going to have people that

16 are strongly opposed to it, and that will use that as

17 an attack on the court that makes the decision. 

18 I think that the solution in those rare

19 cases is to have counsel adequately alert the panel to

20 any regional problems. In any event, a few

21 controversial decisions are not grounds for limiting

22 the size of the circuit. 
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1 If we were to consider a limit of, say,

2 fifteen judges on a circuit, any split of the present

3 Ninth Circuit could not do that without splitting the

4 State of California. And I think almost everyone

5 agrees that that's an undesirable result. 

6 I think that one problem is that as the

7 case load invariably increases, more judges are going

8 to be required. If we limit a circuit to fifteen

9 judges, we're shortly going to require many more

10 circuits. 

11 And if that occurs, you're going to have

12 a layer of court, or at least a court, between the

13 present circuit courts, and the Supreme Court, to

14 perform their function of seeing that there isn't

15 discrepancy in the decisions of the various circuits.

16 And I think it's the last thing we need,

17 is another layer of courts, with the additional

18 duration and expense of litigation. 

19 I think there is -- I was pleased to see

20 that this panel was considering the jurisdiction of

21 the circuit courts of appeal. It is not specifically

22 mentioned in your -- in the Act. But it's certainly,
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1 I think any discussion of the structure of the circuit

2 courts has to take into consideration their workload.

3 And I think that this is where there are

4 various things that could be done that would lessen

5 the workload, and thus lessen the need for more and

6 more judges. Otherwise, I see no solution other than

7 increasing the number of judges, and increasing the

8 size of the circuits. 

9 Now, I am not going to go into detail on

10 jurisdictional suggestions. Some of them have been

11 made to you already today. Certain ones, such as

12 certiorari of the court of appeal, and certain types

13 of appeals. 

14 There also could be considered

15 administrative courts, such as in the Federal

16 Employees Compensation Act, where the appeals are

17 taken to an appellate division, and that ends it.

18 That's the ending of the appellate procedure there.

19 And there are certain other types of cases, such as

20 Longshoremen and Harbor Workers Act, that might have

21 a similar appellate division that would end it, or at

22 least that would give just a certiorari right to go to
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1 the Ninth Circuit court of appeals. 

2 I think that another means of addressing

3 this problem is through alternate dispute resolution.

4 We have a fine mediation program in the Ninth Circuit

5 at the present time. And I was excited to hear that

6 there are many new steps being taken to increase, and

7 even through Congress, make more alternate dispute

8 resolution available to litigants. 

9 So, in conclusion, I'd like to say that I

10 see no reason to split the Ninth Circuit. I think

11 that it functions well, and is doing its job. And

12 that I do think that it would be wise to look into the

13 jurisdiction of the appellate courts in such a way

14 that it did not diminish the rights of those who are

15 in pecunius from having a right of appeal, and would

16 not limit what Article III judges should do. 

17 But at the same time, would have some of

18 the other functions that are not essential handled by

19 other bodies, or by certiorari. 

20 Thank you, Your Honor. 

21 CHAIRMAN WHITE: Thank you. Thank you,

22 Judge. (Pause.) Judge John Sheehy. 
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1 JUDGE SHEEHY: Members of the Commission,

2 my name is John Sheehy. I live now in Elden, Montana.

3 I served for thirteen years as a Montana Supreme Court

4 Justice. After 30 years of active trial and appellate

5 practice in Billings, Montana. 

6 On three separate occasions in that

7 period, I served as a lawyer-designate from the

8 Montana to the Judicial Conference of the Ninth

9 Circuit. 

10 I want to advise the Commission that U.S.

11 Circuit Judge Sydney Thomas, who submitted a statement

12 to you, and who spoke to you this morning, is my son13 in-law. (Laughter.) However, I practice law, or sat

14 on a court for 45 years --

15 CHAIRMAN WHITE: You're talking well.

16 (Laughter.) 

17 JUDGE SHEEHY: -- before he came into my

18 family. And the views I express are my own, as his

19 views are his own. I'm only happy that our views seem

20 to coincide. 

21 He comes before you, however, as an

22 insider judge, fully familiar with the internal
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1 working of the Ninth Circuit. I stand before you from

2 the limited viewpoint of a practicing lawyer, and a

3 state judge, within the geography of the Ninth

4 Circuit, for whatever value that might have to this

5 Commission. 

6 I have not discussed with my son-in-law

7 before hand our respective statements to you, for the

8 very good reason that we live 250 miles apart, and he

9 is too busy trying to be a diligent judge on this

10 circuit, on the short-handed circuit. 

11 By and large, the legal community of

12 Montana seems to be satisfied with the present

13 structural geography of the Ninth Circuit court of

14 appeals. Our organized state bar went on record in

15 1996 in opposition to then-pending legislation in

16 Congress designed to split Montana off from the Ninth

17 Circuit, and into a new circuit. 

18 Between our state courts, and the court of

19 appeals for the Ninth Circuit there is what I have

20 designated in my statement a mutual cordial respect.

21 Any attempt to cut Montana away from the Ninth Circuit

22 would have the unfortunate result of shutting us off
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1 from an important source of precedent. This is

2 because our code law came originally from California.

3 That state contributes a large number of

4 judges to the Ninth Circuit, who bring with them the

5 California experience. The contention that the Ninth

6 Circuit court is dominated by, quote, "liberal

7 California judges" unquote, is a political shibboleth,

8 for which there is no substance -- any substance to be

9 demonstrated. 

10 This argument is an outgrowth of a

11 perceived political thing that is called the federal

12 war on the west, that is pushed by some who think that

13 judicial decisions affecting the Northwest economies

14 should be based on regional considerations, rather

15 than on the need for a national, as opposed to a

16 regional law. 

17 Montana's state constitution has in it

18 several decisions that parallel the federal Bill of

19 Rights. While Montana cannot use its state provisions

20 to diminish a citizen's federal civil rights, under

21 the U.S. Constitution, Montana does not have to march

22 lockstep with the United States Supreme Court
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1 decisions respecting those rights, but can expand them

2 under our state constitution. 

3 In examining such questions, our state

4 Supreme Court has always looked respectfully at

5 decisions of the court of appeals of the Ninth Circuit

6 for precedents respecting those parallel rights. In

7 a new circuit, we would be starting over regarding

8 precedents. I realize that in itself, that is not a

9 major consideration, perhaps, for this Commission.

10 But it does demonstrate the sea of uncertainty that

11 would result in the states involved in a split of the

12 circuit. 

13 However, we have here a Commission that is

14 mandated by Congress to make recommendations. And I

15 have a fear that some of the recommendations might lie

16 on the desk, and not be acted upon in much the same

17 way that happens to the rest of the Commission. 

18 I think it should be really clear that a

19 split of the court of appeals of the Ninth Circuit is

20 not going to happen anytime soon. First of all, the

21 great weight of the arguments before this Commission,

22 before the Congress, before the various other bodies
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1 studying the matter, after the Horeske Commission, is

2 against carving the Ninth Circuit. 

3 The learned judges, the professors, the

4 experts I've met and challenged, and overcome all the

5 arguments conjured up by those who would advocate a

6 split. The configuration of -- circuit seems to have

7 the support of the legal community, a very important

8 factor. 

9 Senator Conrad Byrnes, too, a sponsor of

10 the Senate bills 853 and 956 -- a few legal scholars

11 advocate dividing the Ninth Circuit, but instead offer

12 innovative reform measures, like re-defining the

13 circuit boundaries, or re-structuring the federal

14 appellate court system said, quote, "However, all of

15 those articles ignore the political reality facing

16 each of these proposals. Congress is unlikely to

17 adopt any reform proposal which is opposed by the

18 legal community." 

19 I think that's an important factor. A

20 further reason why a split of the circuit will not

21 happen anytime soon, as no workable plan to divide the

22 circuit can be or has been conjured up. So far, every
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1 split either divides California, or creates a new

2 circuit or circuits with unfair and unworkable

3 caseload, distributions of caseload. 

4 And each new circuit would be under

5 staffed with judges available to undertake the

6 administrative work now being handled by the Ninth

7 Circuit. All of this is ably set out for you by

8 others who have made statements to the Commission. 

9 A third reason why the Ninth will not be

10 split anytime soon is purely political, and not within

11 the purview of the work of this Commission. Because

12 assumedly, this Commission will not make its report --

13 will make its report based on what is good for the

14 country with regard to the appellate future of the

15 federal judiciary, and without regard to the politics

16 of the matter. 

17 When politics enters in, we get ridiculous

18 results. For example, Senate Bill 956 passed the

19 Senate because the Judiciary Committee of the Senate

20 was by-passed, and the Senate Bill 956 was attached as

21 a rider to an appropriation bill in the Senate

22 Appropriations Committee. 
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1 Had Senate Bill 956 finally passed, we

2 would have had the absurdity of two legal clerk's

3 offices at opposite sides of the new circuit handling

4 only thirty percent of the work of the old Ninth

5 Circuit. 

6 Fortunately, this situation was avoided.

7 And the only good thing to come out of the political

8 process was the establishment of this Commission. But

9 if this Commission comes to the conclusion, as I hope

10 it will, that no workable and fair carving of the

11 Ninth Circuit can be recommended by it, there are

12 still the contentions of some that -- divisions of the

13 Ninth can be made that will in effect be creating new

14 districts. 

15 These proposals include such things as

16 assigning certain divisions within the circuit to hear

17 appeals from certain judges within the circuit.

18 Future appointments of appellate judges not to the

19 circuit, but to divisions within the circuit. And

20 dividing cases out of the four California districts

21 among the divisions. 

22 These suggestions are looking only to case
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1 volumes in dividing up the circuit. They ignore case

2 types, which require a different quanitification than

3 merely volume. For example, in death penalty cases --

4 a case management issue, plus -- the deployment of

5 district judges to panels, and many other innovative

6 procedures now in effect in the Ninth Circuit. 

7 The truth is that creating divisions by

8 law, I am not clear from what has been -- here,

9 whether the proposal to establish divisions is meant

10 by law, or by internal court rule. But creating it by

11 law would in effect carve up the circuit de facto.

12 The methods of handling the judicial

13 business of each circuit is better left to the judges

14 appointed to each circuit. They have the best feel

15 for the efficient administration of the judicial work,

16 and they all have a wide latitude of options for

17 innovation, as the Ninth Circuit has already

18 demonstrated. 

19 I have no idea at present what this

20 Commission is learning or has learned about the other

21 federal appellate circuits, nor how they relate to the

22 whole appellate system, or to the Ninth Circuit. I
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1 offer my comments only because the Congressional

2 mandate to this Commission included a special

3 reference to the Ninth Circuit. 

4 The continuing efforts over the last year

5 to divide the Ninth must be a terrible distraction to

6 the judges on that court, and a loss of work time that

7 could otherwise be devoted to true judicial work. 

8 Somewhere along the line, it is my hope

9 that some investigative body, and I hope this

10 Commission, or perhaps this Commission will tell the

11 world that the court of appeals for the Ninth Circuit

12 is presently doing its job in a manner that is

13 comparable to any other circuit, and -- is

14 commensurate with the demands of justice, as far as

15 can be expected. 

16 And it will surely do even a better job if

17 it is soon given its full complement of judges to

18 handle the important judicial business of the west. 

19 I respectfully submit that, Your Honor. 

20 CHAIRMAN WHITE: Thank you. Do you have

21 any questions? 

22 COMMISSIONER: I would like to ask --
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1 Judge Boochever -- Judge Boochever, I wonder if you

2 could provide a definition of collegiality in the

3 appellate court setting? 

4 JUDGE BOOCHEVER: (Pause.) That's a good

5 question. I think it comes in, in being able to

6 communicate with each other in a civil fashion, and

7 discuss cases, discuss issues. I think particularly

8 it comes in on three-judge panels when one gets a

9 draft of a decision from another judge, and spend as

10 much time on it as your own case, in trying to

11 strengthen different parts, or make suggested changes,

12 where you work together to get a collegial product

13 that is better than you would get otherwise. 

14 Now, there are social gatherings that are

15 fun. It's nice to be with other judges, and to joke

16 with them, and to go out with them. But I don't see

17 that as what is the real collegial function in an

18 appellate court. 

19 COMMISSIONER: Does it have anything to do

20 with how well you know the other judge, how often you

21 work with him, and so on? 

22 JUDGE BOOCHEVER: I really don't think it
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1 necessarily does. I know that you can have an

2 immediate collegial relationship with a new judge that

3 comes in, or with one that you're sitting with for the

4 first time. So that I don't think it's essential that

5 you have a long time working relationship. 

6 Now, long time working relationships

7 sometimes can be good, and sometimes can be bad.

8 Speaking quite frankly, there are certain judges that

9 are going to have more arguments with certain other

10 judges, and we've got some examples on our court of

11 that. 

12 But I don't think that overall, as a

13 matter of size, you could have them on one small

14 court, and they would still jostle back and forth.

15 And actually, the exchanges often give some good

16 insights into problems that you might not get if

17 everyone were just buddy buddy about it. 

18 COMMISSIONER: Judge, were you through

19 now? 

20 JUDGE BOOCHEVER: Yes. 

21 COMMISSIONER: Judge Boochever, I have

22 asked this question as I've asked several others not
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1 because I have any mindset in this regard, but because

2 people ask us that, and we ask one another that. 

3 One of your colleagues recommends doubling

4 the size of the Ninth Circuit, and says it can be done

5 without sacrificing any of the values of appellate

6 decision making. 

7 Another of your colleagues, Judge

8 O'Scannlain says that almost any increase would be too

9 much. I may be quoting him too drastically in that

10 regard. But certainly, he would not be able to live

11 with doubling the size of the circuit, according to

12 his remarks. 

13 Where do you come down in that argument?

14 And by what criteria do we -- should we look, to see

15 when a circuit reaches, or is likely to reach a size

16 that it becomes too large, or too cumbersome, or has

17 to compromise on too many traditional appellate values

18 to guarantee its product? 

19 JUDGE BOOCHEVER: I think that's a good

20 question. I really don't -- I think we can go a long

21 ways if we have to. I would -- I would prefer that

22 the jurisdictional aspect be looked into to keep the
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1 case load from constantly increasing. 

2 But I do think that as long as we set up

3 proper systems for resolving any conflicts, and

4 particularly now that we have computers that can

5 instantly draw any other case that has the same issue,

6 I don't think that increasing size is going to be a

7 tremendous problem. 

8 I can't say that at some point it may get

9 so big that it would be -- that we'd had a real

10 serious problem. One thing is that one has to be

11 willing to abide by a limited en banc, even though it

12 does not necessarily represent a majority of the

13 court. 

14 I think we can do that. I mean, we can

15 accept that their decision is going to decide which of

16 two possible conflicting views is going to be the view

17 of the circuit. And we can -- we can live with that.

18 If it's an important case, and the view is wrong, the

19 Supreme Court will correct this. 

20 COMMISSIONER: Do I understand you to be

21 saying, if you put what you just said there in

22 response to what you said a moment ago, it's
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1 irrelevant to the quality or consistency of appellate

2 decision work whether you deal with strangers, or

3 judges you know. 

4 In other words, if you -- or a panel you

5 sit on, you sit once every three or four years with

6 Judge A, it makes no difference, I take it, from what

7 you're saying, that you're dealing with strangers, as

8 distinguished from dealing with judges you really know

9 and work with regularly. 

10 JUDGE BOOCHEVER: I would say that it

11 probably makes little difference. It may make some

12 difference. But it would make little difference as

13 long as the stranger did the same preparation, and the

14 same careful looking at the case, as the judges on the

15 present court do. 

16 If we get a stranger from, say, another

17 circuit, and if he's more interested in a trip to

18 someplace than to really study the case, then you

19 aren't going to get the contribution and the exchanges

20 that are meaningful to a panel. 

21 But as long as one gets the type of judge

22 that I'm talking about, then I don't think -- I think
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1 it makes little difference that one is not familiar

2 with him, or her, I should say, too. 

3 COMMISSIONER: Judge Boochever, in answer

4 to my last question, I guess you think that by

5 increasing size, if a necessary concomitant of that is

6 reducing the number of oral arguments granted even

7 further, increasing memorandum decisions to an even

8 greater number would not compromise the quality of

9 justice that our citizens have a right to expect from

10 our courts of appeal. 

11 JUDGE BOOCHEVER: Well, --

12 COMMISSIONER: Is that a fair statement of

13 how you feel?

14 JUDGE BOOCHEVER: I don't think that is.

15 COMMISSIONER: Okay. Well, good. 

16 JUDGE BOOCHEVER: I think it's important

17 that the standards be kept up, and that it's

18 preferable to have more judges, and to be able to keep

19 up those standards, than to shunt off more and more

20 cases to memorandum decisions, particularly if one

21 starts sluffing at the standards, and doing memorandum

22 decisions when they're really tough issues involving
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1 new -- new facets of the law. 

2 Then I think we're compromising, and I

3 don't think that should be done. 

4 CHAIRMAN WHITE: Well, I think there are

5 some people who seek -- a solution to our old problem,

6 are -- are about five big circuits, or six big

7 circuits. And I wouldn't -- I wouldn't think that

8 right now it's -- that's much of a solution. But it

9 might be a solution for the Ninth Circuit.

10 If it got too big, that you would go ahead

11 and make another big circuit. 

12 JUDGE BOOCHEVER: You mean making the

13 Ninth Circuit into two big circuits? 

14 CHAIRMAN WHITE: No. No. No. No. Take

15 the -- take the Sixth Circuit, or the Tenth Circuit,

16 and make a big circuit out of it. 

17 JUDGE BOOCHEVER: I think the ones in that

18 judge are probably a little better able to speak to

19 that. But theoretically, I would see no objection to

20 that. 

21 CHAIRMAN WHITE: Yeah. Well, it's -- it's

22 probably better than taking all of the planned jumbo
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1 circuits, and doing it all at once. 

2 JUDGE BOOCHEVER: I don't -- I'm sorry.

3 I didn't follow that last one. 

4 CHAIRMAN WHITE: Well, if you have a

5 choice, right now, and under present circumstances, if

6 you have a choice of creating six big circuits, as

7 against just waiting until you need to have another

8 one, I would suppose you'd wait to have another one.

9 JUDGE BOOCHEVER: Well -- 

10 CHAIRMAN WHITE: Which would cure the

11 necessity to have more judges in the Eighths -- in the

12 Ninth Circuit. Well, anyway, don't worry. I'm just

13 dreaming. (Laughter.) 

14 JUDGE BOOCHEVER: Well, thank you, Your

15 Honor. 

16 CHAIRMAN WHITE: (Pause.) Do you want to

17 brief? Do we need to brief? All right. We will take

18 a five minute rest. 

19 (Whereupon, a recess was taken.) 

20 CHAIRMAN WHITE: Welcome. Welcome. 

21 JUDGE HOLLAND: Thank you, sir. Mr.

22 Justice White, members of the Commission, I am very
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1 pleased to be with you this afternoon. I want to tell

2 you first that I speak only for myself in appearing

3 before the Commission. 

4 Our court is one of those that is somewhat

5 divided on this issue of whether the circuit should or

6 should not be divided. Our senior judges tend toward

7 wishing to see a division. Our newest judge sees the

8 matter likewise. The chief judge and I are opposed to

9 a division of the Ninth Circuit. 

10 The second thing that I would say today is

11 that I believe that the reasons that have been

12 advanced to you by the circuit itself in favor of

13 retaining the present composition of the circuit are

14 numerous, and persuasive, and well reasoned. 

15 Third, if I may expand, or reiterate just

16 a bit what I have said in my written presentation, I

17 think a principle job that this Commission has, before

18 it is to do some analysis of the politics that lie

19 behind your charter to study alternatives for the

20 structure of courts of appeal. 

21 I believe that you face the very real

22 problem of having to tell Congress something which
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1 many of those who support the division of the Ninth

2 Circuit do not want to hear. Namely, that there is

3 not any serious fault in the structure of the U.S.

4 appellate courts generally, or the Ninth Circuit in

5 particular. 

6 I have seen no empirical evidence that

7 there is anything inherently or fundamentally wrong

8 with the appellate decision-making process as we now

9 know it. What we have out there is a problem. And

10 the problem, I suggest is that the media, and the

11 technology which supports the public media, have

12 expanded so greatly, and are able to spread so far and

13 wide their notions of what is and what is not right

14 and wrong with the courts, that those who are

15 listening are overwhelmed. 

16 Those who are listening I think

17 unfortunately do not have much of a frame of reference

18 within which to evaluate that which they are being

19 bombarded with. Those who ought to and need to know

20 better what is really going on, I fear, are

21 overwhelmed by the volume and the intensity of what

22 they are hearing. 
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1 I submit that they are by and large un2 informed as to the demands which they are considering

3 for change in the appellate process. Those who have

4 lost an important case before an appellate court

5 become the vanguard of those who think that there is

6 something inherently wrong with a large court, and

7 they vent their frustration over losing their

8 important case on the messenger of the bad tidings, a

9 court. 

10 Even if we could de-politicize the

11 judicial appointment process, judges will always

12 reflect their political, legal, and cultural

13 philosophies in their decision-making. Given their

14 different backgrounds, and given life tenure, judges

15 will always have different views of the law. The

16 honest views of any judge or panel of judges at any

17 given time may or may not comport with the dominant

18 view of Congress. 

19 Despite these diversities, tough cases

20 have to be decided, someone will prevail. And some

21 will lose. And the loser will complain to all who

22 will listen to him. Only the most extreme of changes
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1 in our judicial system could alter this. 

2 And I seriously doubt that Congress is

3 prepared to replace the advocacy system which we

4 presently employ with a decision-making process based

5 on conciliation and consensus. And only that kind of

6 fundamental change would, in my view, silence those

7 who would otherwise be the losers, some of the whom

8 would dis-member the messenger. 

9 I do not envy the Commission the task that

10 it has before it. You may be in a no-win situation.

11 You cannot change the views of sitting judges. You

12 cannot end their terms. You cannot make everyone

13 aware of his or her important case. 

14 So, what do you do? I urge you to

15 consider and propose some innovations in a number of

16 areas. I urge you consideration of the timeliness of

17 the appointment of judges as a primary problem which

18 must be addressed. If it were possible, we should de19 politicize to some degree the confirmation process.

20 That's probably a pipe dream. 

21 You might consider enhancing the

22 transportability of appellate judges, to smooth out
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1 the availability of judges between circuits. In the

2 area of decision-making, I urge you to consider the

3 improvement of en banc procedures for the

4 consideration for the consideration of difficult

5 cases. 

6 I urge you to reject the notion that a

7 court may be divided over its own objections, and for

8 the purpose of quieting those who have lost some

9 important cases or cases. A circuit division aimed at

10 isolating a judge or judges because of his, her or

11 their views of the law is wrong. Such action would

12 violate the independence of the judiciary. 

13 I believe that the courts of appeal

14 generally, and the Ninth Circuit in particular, have

15 performed well. I believe that with rural staffing,

16 the Ninth Circuit could prove the efficacy of a large

17 circuit court. I urge you to tell Congress that there

18 is currently no valid reason for dividing the Ninth

19 Circuit court of appeals. 

20 Now, if you will bear with me for just a

21 moment more, I feel some need to respond to the Alaska

22 situation. It came up this morning with the assistant
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1 attorney general, who was here in place of her boss

2 because of the meeting of the legislature. 

3 That legislature is currently addressing

4 one of the very cases which the assistant attorney

5 general mentioned. They're wrestling with the rural

6 residents problems of our subsistence law. It is

7 still not resolved.

8 Mention was also made of the Indian

9 Country case. I should perhaps tell you in fairness

10 that both the Canine Subsistence case, as regards

11 rural preferences, and the Indian Country case were

12 mine at the district level. 

13 The circuit reversed me on both of them.

14 And I say with a straight face, and there is a judge

15 behind me who will be my witness, if need be, that

16 despite this situation, my situation, I remain

17 convinced that while Alaska is different in many

18 respects, it is not really different when it comes to

19 federal law. 

20 Judge Browning, you got it exactly right.

21 The Indian Country case, the Rural Preference case,

22 and a whole laundry list of other land law cases, and
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1 things of that ilk, they are, in a sense, unique to

2 Alaska. All fundamentally turned on the

3 interpretation of federal law. We're talking about

4 figuring out what Congress meant. 

5 Not what the State of Alaska meant. Not

6 what the individual citizens of Alaska might wish.

7 We're talking about figuring out what Congress meant.

8 And lots of times, Congress doesn't speak very

9 clearly, at least not to me. 

10 My point is that the Indian Country case,

11 the Subsistence Law case, and a whole laundry list of

12 other cases, were legitimate, good faith disputes

13 between people who honestly believed their own point

14 of view. Who received at my hands a decision that one

15 side thought was favorable, and received a different

16 decision at the appellate level. 

17 That doesn't necessarily make me right,

18 and them wrong, or the reverse. It simply means there

19 are different views. There will always be different

20 views. And dividing circuits will not end that.

21 Thank you very much for the opportunity to

22 speak before the Commission this morning. 
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1 CHAIRMAN WHITE: Thank you, sir. Judge

2 Redden? 

3 JUDGE REDDEN: Thank you. Members --

4 Justice White, Members of the Commission, I am here

5 with three of my colleagues, and we do speak for a

6 majority of our district and magistrate judges in the

7 District of Oregon. All but one magistrate judge

8 favors a split. 

9 Judge Hogan, and -- I would say, disfavors

10 the California split, or a split involving a split of

11 the State of California. And wishes me to point out

12 that any split will be the long range solution to the

13 problems of the judiciary in this -- in this circuit,

14 or in the nation. And of course, we all must agree

15 with that. 

16 But we favor a division of the Ninth

17 Circuit, and appreciate the opportunity to briefly

18 explain our reasons, as well as our preference in the

19 manner in which it should be divided. Our reason, at

20 least in Oregon, and the reason with other judges I

21 have talked to, district judges favoring a split, is

22 that the circuit is just too big. 
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1 There are too many panels, and too many

2 possible combinations of judges on a given panel. We

3 don't desire a split for any liberal versus

4 conservative theory, which has been advanced,

5 unfortunately, by the political branches. Which is

6 pointless, and has been somewhat divisive in our

7 circuit. 

8 Neither do we seek our own little

9 Northwest corner of the world on the theory we can

10 better administer to the needs of the Northwest, or

11 that they are our constituency. We are not

12 administrators. We are independent judges. 

13 And we do have the greatest respect for

14 those who have led us in the 80's and 90's. Judges

15 Browning, Goodwin, Wallace, and now Hugg. They have

16 done a good job, and are doing a good job. Three of

17 them were here today, all of them friends and

18 colleagues. But there is just so much they can do. 

19 Judge Wilkinson pointed out to this panel

20 that as the court grew, so do the possible panel

21 combinations. And the law becomes fuzzier and less

22 distinct. I won't read this full quote. We've had it
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1 in several letters to you. I think that that is true.

2 I think it's inescapable. 

3 The real problem with a court as large as

4 the Ninth Circuit is, of course, there are too many

5 panels, and too many possible combinations of judges

6 on any given panel. And there was a question asked

7 about the meaning of collegiality. Collegiality to me

8 does not mean friendship, necessarily, or beer

9 drinking buddies, like you might perhaps on the

10 district court level. 

11 Collegiality, it seems to me on the

12 appellate level is that cooperation and association --

13 in working together. Someone told you earlier today,

14 I believe, that it might be three years before the

15 same judges will sit on the same three-judge panel in

16 a circuit as large as the Ninth Circuit. And I

17 suggest to you that that is a problem. 

18 Judge Parker has told you about the task

19 of maintaining coherence and uniformity when a court

20 has more than twelve active judges, though he was

21 seeking three more. 

22 Judge Hatchet recalls the old Fifth
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1 Circuit as a horror. I don't know the number of

2 possible combinations here. But in the Ninth Circuit,

3 or as it will be when there are ten more judges. And

4 when you consider the visiting judges, the district

5 judges that sit on the Ninth Circuit. 

6 But they had 3,500 when there were twenty7 six regulars and seniors in the draw in the Eleventh

8 Circuit. And I suggest that we are talking about

9 possibly 5,000 or more. He felt that that rendered

10 the law uncertain, and it is certainly so. Such a

11 court cannot keep up with their own opinions, and

12 neither can the district judges. 

13 We are told that isn't too important for

14 district judges, because the lawyers will cite the

15 cases. But the lawyers can't keep up with the number

16 of decisions. 

17 It is the uncertainty of the law which

18 encourages appeal, and contributes to more

19 uncertainty. As I said in my statement, lawyers have

20 advised us that they must advise their clients when

21 the question is, shall we appeal, or shall we settle

22 on appeal is yes, because -- yes, we should both
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1 appeal or settle, depending on the position, because

2 we cannot tell you what the position of any given

3 panel you may draw will be. 

4 And that may be just their perception.

5 But it is a real thing. And I think there is some

6 basis to it. There will be more judges added to this

7 circuit. It will be -- a split will be inevitable.

8 I think that the legislative branch has told us that

9 it's going to be inevitable. And I hope that this

10 Commission, even if you do not support the proposition

11 of a split, we'll discuss with -- in your report what

12 the best split will be. 

13 I think that either the Ruske panel, as

14 recommended by Judge O'Scannlain, or the three way

15 split, either one of those two are the best. A

16 combination of those others within the -- that have

17 been discussed by Judge O'Scannlain, might work. Put

18 you in sort of a position of a three-judge

19 Congressional re-apportionment panel. 

20 But I think at least two of them are

21 practical, even if one of them splits the State of

22 California. House Resolution 3654 of 1993 by
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1 Congressman Kopesky deals with the resolution

2 administered to conflicts by the creation of an inter3 circuit California en banc court, which is not as

4 complicated as it sounds. I've attached that bill to

5 my statement. 

6 We know that the division of the Ninth

7 Circuit is not going to solve all the problems,

8 because this is a structural committee, and not a

9 jurisdictional one. Perhaps the jurisdictional answer

10 would be better. Would they give -- grant -- to the

11 circuits, Congress? I don't think so. 

12 Would they do away with diversity? I

13 don't think so. And will they abandon federalization

14 of criminal and civil cases? I don't think so. I

15 think that a split of this circuit in an intelligent

16 fashion will be of great help to this circuit for the

17 next decade, and more. 

18 And when you compare it to what will

19 happen if we remain the same, and simply continue to

20 grow, I think you will arrive at that same conclusion.

21 I hope the Commission makes a positive contribution,

22 suggests the appropriate division of the circuit, even
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1 if you do not unanimously endorse the concept. 

2 Thank you. 

3 CHAIRMAN WHITE: Thank you. Judge Van

4 Sickle. You may approach the bench, or the podium, or

5 wherever you want to talk about. All right. 

6 JUDGE VAN SICKLE: Thank you, Mr. Justice

7 White, and members of the Commission. My name is Fred

8 Van Sickle. I am a United States District Court judge

9 from the Eastern District of Washington. I reside in

10 Spokane. 

11 I speak primarily for myself. But I also

12 speak in accordance with the general philosophy, as

13 well, of the chief judge in the Eastern District of

14 Washington, Judge William Nielsen. 

15 It's always difficult I think when a trial

16 judge is taking a position that is contrary to the

17 appellate system, to not make it appear as though it's

18 a personal criticism of that -- the personnel

19 involved. My comments and concerns are not at all,

20 and should not be understood to be a personal

21 criticism of any of the judges or the staff of the

22 Ninth Circuit whatsoever. They are not. 
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1 To give you some idea of my background, I

2 am a country trial judge. I started out in the state

3 system in the State of Washington, in eastern

4 Washington. And served fifteen-plus years as a state

5 trial judge, and have served just about seven years on

6 the federal bench. 

7 My concern with the situation involving

8 the Ninth Circuit is the extreme number of cases and

9 determinations that are required to be made by a

10 circuit of that size. When we are talking about a

11 caseload that is approaching almost 9,000 -- 8,600

12 cases to be considered by -- as indicated, as I

13 understand the numbers, the number of panels that are

14 involved in making those decisions. 

15 The risks and concerns with conflicts in

16 the cases, and the risks of uncertainty, are

17 significant. They create, I think, difficulties for

18 everyone. I think the judiciary, the trial bench, has

19 a difficult time keeping up with what the law is on a

20 day to day basis, in order to be able to make

21 decisions on cases, and on motions. 

22 And I would suggest that that also, that
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1 uncertainty, which is so important, I think, for the

2 general practitioners of law, and people practicing in

3 the federal courts, to know and understand what the

4 law is, or have a good idea of what to be able to

5 predict what the law is, to advise your clients,

6 becomes very important. 

7 I am convinced that this also results in

8 more litigation. And thus, we end up with more

9 litigation, and more uncertainty. And I -- I have not

10 yet had it happen, but I had a friend tell me on the

11 phone the other day, someone from outside any of the

12 districts that are here. But also as part of the

13 Ninth Circuit, commented that counsel in his court

14 said, judge, you can rule as you see fit, of course.

15 But we'll take it up, and see what panel we might get

16 in the Ninth Circuit to tell us what the law is.

17 I don't mean to be personally critical,

18 but it has reached the point, and it is a function

19 that is explained, as well, in that article that

20 submitted to The Wall Street Journal, but that then

21 was re-published in the publication of the Federal

22 Judges Association, the May issue of In Camera,
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1 published this article, re-print from The Wall Street

2 Journal, that was authored by Chief Judge Wilkinson of

3 the Fourth Circuit, talking about the size of

4 circuits, and talking about the size of the federal

5 judiciary, in general, his principle concern. But

6 addressing the concerns of the size of the district of

7 the appellate court system. 

8 I would say those things do apply. I know

9 you've heard them over and over, I suspect. And the

10 concerns expressed by the people who mentioned them to

11 you. And I think they're real. They are a concern.

12 And I think the question comes down to a very

13 difficult determination. 

14 And that is, should there be a split of

15 the Ninth Circuit? And should that happen? And is it

16 really, even more -- to say, is it the time now come?

17 I am convinced that the size of the circuit, not

18 geographically, but in terms of caseload, in terms of

19 the work and energy that has gone into, to do the

20 work? 

21 And I am mindful of the difficulties with

22 the vacancies, and the use of technology in an effort
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1 to deal with the problems that are there, that have

2 been done. But I would submit to you, and ask that

3 this Commission give very serious consideration to a

4 division of the circuit. Not because the people in

5 the circuit, whether the judges or the staff, are in

6 any way not doing their job. 

7 It's because of the difficulties of

8 uncertainty, the difficulties and problems with the

9 judiciary, the bar. And probably more importantly,

10 the litigants, who must then wonder what the federal

11 law is, and must litigate it. And must be involved

12 with the use of their resources to make the

13 determinations, as it relates to their litigation. 

14 Thank you very much for allowing me to

15 express my concerns in regard to these issues. Thank

16 you. 

17 CHAIRMAN WHITE: Very well. Do you have

18 any questions? 

19 COMMISSIONER: Well, let me ask Judge

20 Holland, you can answer from there if you keep your

21 voice up, Judge. Do you -- do attorneys in Alaska

22 share the perception that Judge Redden and Judge Van
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1 Sickle spoke of, that it depends on what panel you

2 get, as to whether the appeal will succeed or not? 

3 JUDGE HOLLAND: In all candor, sir, I have

4 said that myself. And I do hear that. 

5 COMMISSIONER: There appears to be a study

6 by -- 

7 JUDGE HOLLAND: I don't -- I'm sorry, sir.

8 COMMISSIONER: There's a study by

9 Professor Helman, which would indicate his examination

10 of empirical data, does not show that to be the case.

11 Now, he admits to some -- I don't know the right word.

12 Shortcomings, perhaps, in his research, or some

13 aspects that aren't completed. 

14 But if that were the case, you would think

15 it's still the perception in your district that that

16 is the case. 

17 JUDGE HOLLAND: I think there is a

18 perception that it makes a difference which panel you

19 get. And I suggest that that circumstance exists in

20 any circuit. And of course, the bigger it gets, the

21 more combinations there are. 

22 But I do not think that dividing this
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1 circuit or that circuit or the other circuit is going

2 to solve the problem for those who say, gee, if I get

3 a panel made up of Judge A, and Judge B, the case is

4 going to go one way. But if I get C and D, it's going

5 to go the other way. I think you can have that on a

6 five judge court. 

7 COMMISSIONER: One other observation,

8 there is nobody on this Commission, I believe, who can

9 predict where this Commission stands on any point

10 that's been discussed today. But I'll take the

11 liberty of predicting, we won't recommend to Congress

12 they de-politicize the selection of federal judges.

13 (Laughter.) 

14 And from where I sit, that's fine. But

15 were that true twenty years ago, we might have a lot

16 of new faces in this room. 

17 JUDGE HOLLAND: It sure is true. 

18 CHAIRMAN WHITE: I wonder if I might add,

19 Judge Holland, a question of, we've heard various

20 arguments about what I think for short is called

21 regionalism. That the whole federal judicial

22 structure is based more or less on a regional basis.
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1 Not exactly in every situation. But more or less

2 historically. You've got a New England circuit,

3 you've got a mid-Atlantic, you've got South-eastern,

4 et cetera. 

5 And the lower -- planning committee made

6 a point of saying that appellate courts, that the

7 litigants should have access to appellate courts with

8 judges drawn from their region. Now, and then we also

9 have heard that one cannot say that Arizona and Alaska

10 are in the same region. And you have a situation here

11 that is inconsistent with the concept of regionalism

12 historically, and currently. 

13 What would be your answer? Is

14 regionalism, in that sense, a legitimate factor to be

15 taken into account in designing circuits? 

16 JUDGE HOLLAND: Well, certainly from an

17 historical standpoint, I think one can say that has

18 been a factor. Now, I think one can look at the

19 Pacific Northwest, and say with a straight face that

20 Alaska, for example, has more of an affinity for that

21 which goes on in the Pacific Northwest than it does

22 for what goes on in Arizona. 
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1 That's true. I also think that it's true

2 that there is a high level of importance for the

3 entire Pacific coast that we have a unified law for

4 the entire Pacific coast. We in Alaska have

5 significant business dealings with the entire Pacific

6 coast. 

7 And in some meaningful sense, I suggest

8 that the Pacific coast is a legitimate, recognizable

9 region, when one speaks of having appellate courts

10 serve, in some sense, on a regional basis. 

11 If that's not too waffly an answer, yes,

12 I think it's a factor. But I'm not prepared to

13 concede that the Ninth Circuit fails in that regard.

14 CHAIRMAN WHITE: (Pause.) Thank you. 

15 COMMISSIONER: I have no other questions,

16 no. 

17 CHAIRMAN WHITE: Judge Barbara Jacobs

18 Rothstein, U.S. District Court, Western District of

19 Washington. 

20 JUDGE ROTHSTEIN: Good afternoon. I am

21 sure by now you've heard a lot of testimony from a lot

22 of different people. If I were sitting where you were
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1 sitting, I would probably rule that I am cumulative,

2 and dispense with me. But I do appreciate -- 

3 CHAIRMAN WHITE: Oh, I know. But

4 cumulation means sometimes convincing.

5 JUDGE ROTHSTEIN: I hope so. I appreciate

6 the opportunity to be able to speak to you. Many of

7 us judges haven't had a chance to argue a point for

8 many years, so this is a good occasion for us to do

9 that. 

10 CHAIRMAN WHITE: Uh-huh. 

11 JUDGE ROTHSTEIN: I'd like to address some

12 of the questions that you have asked concerning the

13 regionalism, and whether they're -- that should be a

14 factor that counts for or against the splitting of the

15 circuit. 

16 I would proffer that regionalism is a poor

17 idea in splitting the circuit. The idea that we could

18 have a Northwest circuit that, either through its

19 judges, or its considerations, is fitted to the needs

20 of a small section of the country, is something that

21 should not recommend itself to this panel. 

22 We on the West Coast, as Judge Holland
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1 pointed out, are increasingly facing a number of legal

2 matters that impact the region as a whole. It's not

3 just international law, and the fact that we as the

4 Pacific rim are constantly dealing in an area where

5 it's a great advantage to have a common body of law.

6 But there's admiralty law, where the trade

7 is going up and down the coast. And of course,

8 there's environmental law. As I pointed out in my

9 statement, migrating species have very little regard

10 for state lines, or circuit lines. And indeed, the

11 Commissions and administrative needs for dealing with

12 these have been on a broad geographical basis. 

13 The Fisheries Commission is a Pacific

14 Coast Fisheries Commission. It isn't divided in some

15 arbitrary manner between the Northwest and the

16 Southwest. 

17 Fragmenting the circuit runs counter to

18 these needs. Our Supreme Court is the ultimate

19 decision maker. It's already faced with countless

20 legal disputes among many circuits. And additional

21 conflicts, by putting in an additional circuit, is not

22 going to lessen those conflicts. Or, it's not going
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1 to make the law any more certain. 

2 The function of the federal courts, I

3 would submit, is to fashion a uniform national law.

4 And sectionalism is not an advantageous quality in

5 advancing that uniform body. Historically, the Ninth

6 Circuit has been a common geographic area. Its legal

7 tradition has developed with the entire picture of the

8 circuit. 

9 In some areas of the country, history and

10 geography have dictated the creation of smaller

11 circuits. And so be it, they have their smaller

12 circuits. But our legal history and tradition, and

13 that of the West, has shaped itself around a larger

14 circuit. 

15 I think it's a fine history, and I think

16 we should maintain. And I do think it's working well.

17 The idea that multiple panels creates an uncertain

18 body of law, I suppose multiple circuits, it's

19 inherent that there is going to be an uncertain body

20 of law, as long as it's not going to lessen it to have

21 an additional circuit. 

22 You're just going to have another
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1 possibility of a split between the circuits, and

2 create more law for the Supreme Court. Which I

3 suppose may be fine, but I don't think is going to --

4 uncertainty is part of the law, part of the

5 development of the law. 

6 I do not think that -- the fact that there

7 are so many panels has made that big a difference.

8 The circuit has made a concerted effort to keep track

9 of its decisions, to circulate those decisions among

10 its judges. And as technology increases, the facility

11 with which that can be done, I think that kind of

12 problem can be resolved within the circuit as it now

13 stands. 

14 Any questions? 

15 CHAIRMAN WHITE: Thank you. If we do

16 have, it will be after this young man. 

17 JUDGE ROTHSTEIN: Okay. 

18 UNIDENTIFIED: (Pause.) Do you want Judge

19 Dwyer to start? 

20 CHAIRMAN WHITE: Yes. 

21 JUDGE DWYER: May it please the

22 Commission. It's been a while since I've had a chance
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1 to utter a phrase like that. But I did have good

2 fortune to practice law as a trial lawyer in Seattle

3 for thirty years. And I've had the more recent good

4 fortune to serve as a district judge here in this

5 building for ten and a half years. 

6 Neither of these jobs automatically

7 influence admiration for the court of appeals, which

8 after all, can take away what you've won as a trial

9 lawyer, or reverse a judgment that you've labored over

10 as a trial judge. 

11 And yet, I do admire the Ninth Circuit,

12 and I believe for good reason. In my experience,

13 which includes sitting occasionally as a member of a

14 three-judge panel in the court of appeals, this court

15 of appeals functions very well. 

16 It's been mentioned today that there are

17 28 judges, or there would be 28 judges if the

18 vacancies were filled. I see that as a strength,

19 rather than a weakness. This group of judges, drawn

20 from all over the far West is a diverse, multi21 talented, and highly dedicated group. 

22 It's been asked, does it depend on what
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1 panel you get? I think, really in most cases, and

2 this was my observation as a trial lawyer, as well as

3 now, in most cases, it does not depend on what panel

4 you get. 

5 Occasionally, of course, that can make an

6 important difference. But that's true in almost every

7 court. Starting in the trial court, something may

8 depend on what trial judge you get. And in any

9 appellate court of any size at all, the outcome may

10 have something to do with who is on the panel. 

11 But I, for one, would rather be reversed

12 by a diverse court with an ample supply of judges from

13 various backgrounds and inclinations, than by a

14 smaller monolithic court. 

15 I think those who favor a small circuit

16 may be forgetting the ancient wisdom, be careful what

17 you ask for, because you might get it. These things

18 can change very rapidly. And those who expect a more

19 favorable result eventually from a smaller court could

20 easily find the tables turned very quickly. And that

21 kind of outcome is not going to fit anyway. 

22 It's been asked if this court is
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1 collegial. If by collegiality, we mean respect for

2 precedent, respect for each other's views, the answer,

3 by and large, in my experience, is yes. 

4 Does this circuit produce a coherent body

5 of law? Again, I say yes. Now, by no means can I

6 take full credit for this, since I am helped by law

7 clerks who are brilliant with computerized research,

8 which is beyond me. But I find it not difficult to

9 nail down the circuit's answer to a particular point

10 of law, as well as can be done with any other circuit.

11 Obviously, there are ambiguities and

12 difficulties. If there were no ambiguities or

13 difficulties, we would now be out of business, or at

14 least have very little to do. But coherence I think

15 is a value maintained very well with the Ninth

16 Circuit. 

17 There is the question of timeliness. I

18 think by national standards, and national comparisons,

19 the Ninth Circuit does well, particularly given its

20 short-handedness. But I do think also that all

21 circuits need to improve. I think lack of timeliness

22 is a chronic shortcoming in the entire federal
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1 appellate system. 

2 I seized upon one word in the Commission's

3 invitation to comments. It was the word processes.

4 The Commission invited comments on processes, as well

5 as structure. And seizing on that, I included in my

6 written submission a suggestion as to process. 

7 Which is very simple. It's that we take

8 a page from the British appellate book, and decide

9 some appeals where the outcome is clear, and simple,

10 and unanimous, from the bench, rather than retiring,

11 taking things under advisement, going home, drafting,

12 re-drafting, circulating, et cetera. Which is time

13 consuming, and in a non-precedential case, I think is

14 very unnecessary. 

15 I believe that kind of reform could make

16 a big improvement in our work, that is, in the court

17 of appeals work. And of course, that's just one

18 suggestion of many that could be made. 

19 In the future, it seems clear that all

20 circuits will grow in terms of the number of judges.

21 The supply and demand for justice will assure that no

22 matter how much any of us may wish for a small group
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1 of federal judges, limited either by a cap, or by some

2 other means, I simply don't think it's possible, given

3 the public demand for federal justice in this country.

4 And faced with that, we will not solve

5 anything by chopping up circuits. The states of the

6 far West have a great deal in common: history,

7 culture, economics, commerce. And in regard to five

8 of them, a sharing of the Pacific rim. 

9 These states need a unified body of

10 federal law. I'm speaking today only for myself. But

11 I do not believe that there is any widespread

12 sentiment among the public or the bar to split off the

13 Northwest from the rest of the circuit. 

14 Of course, I respect fully the views of my

15 colleagues and others who disagree. But in terms of

16 public opinion, and sentiment of the bar, I do not

17 think there is any strong movement, or even any

18 majority movement in that direction, nor should there

19 be. And I think what sentiment there is, at least as

20 expressed through Members of Congress, derives chiefly

21 from disagreement or dissatisfaction, with the very

22 small number of decisions, out of thousands recently
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1 decided by the Ninth Circuit. 

2 It's hard to imagine a poorer reason to

3 break up a judicial circuit. This brings to mind an

4 historic event of 60 years ago, when out of

5 dissatisfaction with some decisions of the Supreme

6 Court over measures of the New Deal, President

7 Roosevelt made a very determined effort to change the

8 structure of the Supreme Court. 

9 History has vindicated the judgment of the

10 majority who rejected that, and stayed with the

11 existing structure. And of course, time took care of

12 the problem. Just as it will take care of anyone's

13 dissatisfaction problem with particular decisions of

14 this circuit, or any other circuit. 

15 Every judge, every court of appeals judge,

16 every district judge, even every Supreme Court judge,

17 has only a brief lease on office. And time will soon

18 resolve these disputes or disagreements over

19 particular cases. 

20 And I think it's important to note that

21 that is all the more true in a large circuit. In a

22 small circuit, or in a one-judge county court, it is
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1 much easier to get stuck with a cast of characters

2 that breed widespread unhappiness. 

3 In a larger circuit, we have a better

4 chance, and I think we have a demonstrated record of

5 being able to improve any areas of judicial decision

6 making through the normal traditional appointment

7 process, the appointment and replacement process,

8 without trying to divide circuits. 

9 I do not believe we should divide circuits

10 at this point in history. Rather, we should try to

11 make them work better. And I'm convinced that we can

12 do that. 

13 Thank you very much, and I'd be glad to

14 respond to any questions. 

15 COMMISSIONER: I have no questions. 

16 PROFESSOR MEADOR: Do you -- Judge Holland

17 a while ago talked about the perception of lawyers,

18 and even himself, that the decision you get on appeal

19 depends on the panel you happen to draw. Does either

20 one of you sense that perception among the lawyers in

21 your districts? Among the judges on your district

22 courts? 
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1 JUDGE DWYER: I've heard that said,

2 Professor Meador. But it always collapses under cross

3 examination. 

4 PROFESSOR MEADOR: You mean the decision

5 does not depend on the panel you get? 

6 JUDGE DWYER: In most cases, I'm convinced

7 it does not. There are some cases, cases of

8 particular difficulty, or the cutting edge of the law

9 in some respect, where who is on the panel certainly

10 does make a difference. 

11 But I think that is an inherent condition

12 of life in any court where you have more than one

13 judge assigned to the case? 

14 PROFESSOR MEADOR: Well, does it follow

15 from that the lawyer -- the number of possible panels,

16 the greater the degree of uncertainty there will be

17 about outcomes? 

18 JUDGE DWYER: I don't think so. Because

19 there are so -- only so many basic judicial points of

20 view. Sometimes they're called conservative and

21 liberal. These are two terms of doubtful clarity, in

22 my opinion. But perhaps we all have a rough idea of
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1 what -- there are not 3,000 orientations. There are

2 not even 28 different fundamental orientations. There

3 are a very few. 

4 And the combinations of judges that we get

5 I think bring a richness, and a diversity to the

6 process. And a freshness to the process that easily

7 becomes lacking if a court becomes too small.

8 Something like the jury system, in a way, I am a great

9 fan of the jury system. And one reason I am is that

10 it brings freshness and newness to every case. 

11 Although a large court doesn't bring

12 newness to every case, but in a sense, it does bring

13 freshness. And I think that is a tremendous advantage

14 we have. And I think those who would prefer, say, a

15 five judge circuit, or a six judge circuit, to a 28

16 judge circuit, if they were to realize that goal,

17 would soon become very disappointed. 

18 CHAIRMAN WHITE: I think -- I think that

19 is all. 

20 JUDGE DWYER: I thank the Commission. 

21 CHAIRMAN WHITE: Thank you. And thank

22 you, Judge Rothstein. (Pause.) You may go ahead. 
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1 MR. TRUE: And I'm pleased to be here this

2 afternoon to speak with you for a few minutes about a

3 court that I spend a good deal of time working for. 

4 I am an attorney for the Earthjustice

5 Legal Defense Fund. We are a public interest law

6 firm. We practice in the area of environmental and

7 natural resources law. We have a number of offices

8 around the Ninth Circuit, four. And we have handled

9 cases that have arisen in just about all parts of the

10 circuit, from Guam to Alaska, Southern California, to

11 Montana, Arizona, and just about any point in between.

12 We have also followed the issue of re13 structuring the Ninth Circuit for at least the last

14 half dozen years. Because in the late 1980's and

15 early 1990's some of the environmental cases we were

16 involved in appeared to provoke a response in Congress

17 that the circuit should be divided, because one part

18 of the circuit didn't understand another part. 

19 So, it's an issue that I have some small

20 familiarity with, certainly not as deep as many of the

21 people that you've heard from today. And my

22 familiarity with the court, and with the issue of re-
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1 structuring the court, leads me to have three points

2 that I would like to offer you today. 

3 The first is, that the court, as it's

4 structured now, is working fine. That is the

5 perspective of a lawyer to writing briefs, filing

6 cases, filing motions, speaking with the clerk's

7 office, and dealing with the court on essentially a

8 weekly basis, sometimes more often. 

9 The motions we file get responded to. The

10 clerk's office is very helpful, it's very prompt.

11 Calendaring of matters is handled well. We are not --

12 we haven't experienced having cases lost, or things

13 disappear into that large Ninth Circuit. They are --

14 they know when things come in, and they respond to

15 them.

16 I think if there is any problem that I see

17 in the court today, it is that the current number of

18 vacancies on the court has somewhat delayed the time,

19 my perception is, has somewhat delayed the time

20 between completion of the hearing and calendaring of

21 argument. But I believe that the problem with

22 vacancies on the court lies somewhere else than with
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1 the structure of the court itself. 

2 The court has over the years done quite a

3 good job of taking advantage of technology to work

4 with and track the many appeals that are filed in

5 front of it. I can only recall one occasion in the

6 last ten years when on a point of law, under the

7 National Environmental Policy Act, two panels were

8 considering the same issue. 

9 Opinions that took a different position on

10 that issue initially came out, but that was

11 immediately recognized by the court. The two opinions

12 were withdrawn. The panels concurred. And a common

13 position on that particular point of law was adopted

14 by the circuit, and has worked fine ever since. 

15 I think where I come out on this point is

16 that just because it's big doesn't mean it needs to be

17 broken up. The court of appeals is not MicroSoft.

18 It's not a division of MicroSoft. It is an

19 institution that has served this region extremely well

20 for over 100 years. 

21 And its innovation, and management of its

22 diverse caseload should be allowed to continue. And
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1 it should be allowed to pioneer, essentially, the

2 future of large circuits. Because at some point, we

3 may want more of those, rather than fewer. 

4 The second point I think I would make is

5 that in the area where I work, there are actually

6 advantages of the current size of the Ninth Circuit.

7 In the natural resources area, we are often dealing

8 with large eco-systems, large geologic formations,

9 river systems that cover several states. 

10 And there are advantages to having one

11 court that announces a rule of law for that whole

12 system, rather than potentially two courts that would

13 go in different directions. There are some examples

14 of that that come to mind. Recently we have been

15 involved in cases of the protection of habitat for a

16 number of birds that have -- that live from San

17 Francisco to the Canadian border. 

18 We are involved now in litigation over the

19 protection of salmon which range up and down the West

20 Coast. Having those kinds of natural eco-systems

21 divided between two courts of appeals could raise

22 difficult issues for agencies and litigants to deal
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1 with. 

2 For example, right now, the Ninth Circuit

3 and the Tenth Circuit, have a different view on

4 whether an environmental impact statement is required

5 for the designation of critical habitat under the

6 Endangered Species Act. 

7 The current division, the current

8 geographic division between the Ninth and Tenth

9 Circuit, has not, to my knowledge, created a situation

10 where that difference of views has caused an agency to

11 wonder whether it should prepare an environmental

12 impact statement or not because part of the species

13 ranges in one circuit, and part in another. 

14 If you were to divide the Ninth Circuit,

15 you would have that problem immediately. Because the

16 salmon, for example, are listed from California to

17 Washington. And you have a question of whether the

18 designation of critical habitat for that species

19 requires an EIS. Perhaps it would in Washington, and

20 not in California. What does the agency that covers

21 both of those states do in that situation? 

22 Those problems certainly are not
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1 unsolvable. But it seems to me that there is no

2 reason to go out and buy that set of problems when you

3 have a court that is working perfectly well. 

4 There has been, at least in the past, some

5 suggestion that part of the court, as I mentioned

6 earlier, take different views on legal issues than

7 other parts. And that has been suggested in

8 particular in the environmental area, when the

9 division of the circuit was proposed in the early

10 90's. The suggestion was that some of the judges from

11 California didn't understand natural resource issues

12 in the Northwest, and were imposing their views. 

13 Twice we have looked at three or four year

14 sets of opinions of the court in the environmental

15 area. And we are unable to find that difference in

16 views, if it exists. We have looked at anywhere from

17 75 to 100 cases over those periods. And in cases

18 where there are two California judges on the panel, a

19 successful environmental ruling is just as likely to

20 be reversed as it is when there are not two California

21 judges on the panel. 

22 I don't think you can draw a conclusion
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1 that there are geographic prejudices within the court.

2 Certainly not in the environmental area. 

3 I guess I would add also a point that

4 Judge Dwyer made earlier. It seems to me that if that

5 restructuring a court to change the outcome and

6 opinions, to change the substantive outcome of

7 opinions, is a poor way to run a railroad. It is not

8 consistent with the kind of independent judiciary I

9 think we all enjoy in this country. 

10 And as Judge Dwyer pointed out, the first

11 experience with that, court packing, in the 30's was

12 rejected. And I think anything that even hints of

13 that approach should be questioned very, very closely.

14 It's -- court packing is not something that we need

15 in any form. 

16 I think the last point I would make is the

17 one that I ended up with in my written statement,

18 which is that there are important institutional, or

19 important issues of institutional, inter-institutional

20 respect, at issue in the question of whether to divide

21 the Ninth Circuit. 

22 The courts have been very careful of
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1 interfering in the internal self-regulation of the

2 Congress. The Congress has been very careful about

3 interfering in the internal self-regulation of the

4 courts. And I think that's reflected in prior

5 legislation that allowed courts to seek to split if

6 they wanted to, but didn't seek to command to that.

7 And it's reflected in a number of judicial opinions

8 regarding the legislature. 

9 I think it would take extraordinary

10 compelling evidence for one branch of the government

11 to go in, and re-structure another, over the

12 objections of the people serving in that branch. And

13 I think for that reason, almost alone, the views of

14 the judges of the Ninth Circuit of the attorneys that

15 practice before it, and those who work with the court,

16 should carry tremendous weight in the deliberations of

17 the Commission. 

18 And those views currently are in favor of

19 allowing the court to continue its good work, and its

20 experimentation with making a large circuit effective,

21 and responsive to the people in the region that it

22 serves. 
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1 Thank you. 

2 CHAIRMAN WHITE: Thank you very much. 

3 MR. TRUE: I'd be happy to respond to

4 questions, or wait. However you like. 

5 CHAIRMAN WHITE: Thomas Hillier? 

6 MR. HILLIER: Hillier. Thank you, Justice

7 White, and honorable Commission. 

8 CHAIRMAN WHITE: Hillier -- 

9 MR. HILLIER: The Irish in my family took

10 away that French flourish that might otherwise have

11 been there. So, Hillier it is. 

12 As I have listened to many of the

13 conversations this morning, and this afternoon, I am

14 probably going to have to struggle to say something

15 new. And stand here looking for the back door in case

16 I get too repetitive. 

17 So, to make sure there is something a

18 little new, let me begin by saying that I speak on

19 behalf of federal public defenders for the entire

20 Ninth Circuit, although you will hear from other

21 defenders in two days, down in San Francisco. 

22 I also speak as a third generation
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1 Washingtonian. I was born here in Spokane,

2 Washington. My great-great-uncle, John Earls, was the

3 first state senator from Bellingham, sat on the first

4 state legislature in this state in 1889. 

5 Thus, to use Senator Gorton's phrase, I

6 have parochial feelings, indeed, roots that run

7 generations deep. I have an affection for the State

8 of Washington and the Pacific Northwest that is truly

9 immeasurable. And I'm also a public defender. Which

10 is another way of saying, I lose in the Ninth Circuit

11 probably more often than the Ninth Circuit loses in

12 the Supreme Court. 

13 So, I should be afraid of the Ninth

14 Circuit, in favor of the split, given that pedigree.

15 The reality is, I strongly, as a personal matter, and

16 on behalf of defenders oppose the notion of dividing

17 the Ninth Circuit. 

18 I'm not anxious about California. I heard

19 that phrase earlier this morning. In fact, I don't

20 know what that phrase means. I don't understand it.

21 I don't get it. In fact, I would join what were truly

22 eloquent comments of Governor Locke earlier today, if
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1 I might. We share with California, and indeed, with

2 all the states that occupy this circuit, a common

3 cultural, commercial, and coastal identity. 

4 And for the purposes of my comments, I

5 will call it the Western Pacific identity. And a huge

6 part of that identity is the Ninth Circuit court of

7 appeals. And in trying to understand why the circuit

8 should be divided, what I did first in preparing for

9 this opportunity was, try to think about what the

10 Ninth Circuit is. 

11 And what I see is decades of tradition, an

12 illustrious and truly lively history. A rich, full13 bodied, cohesive stew of Western jurisprudence, a

14 whole bunch of dedicated judges, very helpful judges,

15 respectful and collegial judges. 

16 Thousands, literally, when you take into

17 consideration the entire circuit, and its judicial

18 infra-structure, thousands of staff. Institutions,

19 and courtrooms, and court houses, and literally dozens

20 of innovative and successful programs and initiatives

21 that were begun by the judges in this circuit, to make

22 it more efficient in its administration of justice. 
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1 So, when I think about what it is, I

2 wonder why it should be disassembled. But more

3 importantly, if it is going to be disassembled, what

4 standard judges such a huge decision? It's obviously

5 got to be a decision that's as large as the

6 institution we're talking about. 

7 In that regard, in the paper we submitted,

8 I quoted a phrase that judge -- Chief Judge Hugg put

9 in his statement to you. And it says, "Circuit

10 restructuring should occur only if compelling

11 empirical evidence demonstrates adjudicative or

12 administrative dysfunction in a court, so that it

13 cannot continue to delivery quality justice, and

14 coherent, consistent circuit law, in the face of an

15 increasing workload." 

16 And I agree with Judge Holland in that --

17 in that that such evidence simply does not exist.

18 There is not evidence that this circuit is

19 dysfunctional, that it is able to do what it is

20 charged to do. 

21 Indeed, Chief Judge Hugg, and his

22 predecessors, one of whom was here today, and two of
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1 whom you'll hear from later this week, offer very

2 persuasive empirical data, and a lot of statistics

3 that speak to the efficiency of the court of appeals,

4 and its favorable comparative status with the other

5 circuits of the country. 

6 I don't have a grasp of all that

7 information. It's not my stick. I do have a whole

8 lot of experience in the Ninth Circuit, however, as to

9 the other federal public defenders. We're not

10 occasional visitors. We're not outsiders looking in.

11 We have daily business in the Ninth Circuit. We

12 litigate literally hundreds of cases before the Ninth

13 Circuit on a yearly basis, as a group. 

14 And I speak for the other defenders in

15 saying that the service that we receive, the justice

16 that we see, is fast. And it's exceptionally

17 efficient. We see staff that is courteous, and

18 available, and personally acquainted with ourselves,

19 and the other litigants that come before it, and a

20 court which radiates, radiates respect for the

21 litigators and the litigants. 

22 And as a small example of that, in the
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1 submission that we provided for you, is the notion

2 that this circuit, unlike many, publishes virtually,

3 well, the vast majority of its opinions, and issues

4 written memoranda on those that are unpublished,

5 explaining to the litigants, the people who we

6 represent, why it is that the court has decided what

7 it has decided. 

8 And when we represent the people that we

9 do, that sort of show of respect for the litigants is

10 terribly important. It demonstrates to the people who

11 we represent that this court is concerned with the

12 notion of justice, and explaining what that justice

13 is.

14 I suppose that I should say that, sadly,

15 and often what we see is an all too coherent and

16 cohesive body of law coming from the Ninth Circuit.

17 We lose, and we lose regularly. And that's because

18 this circuit does see what the case law is. 

19 I don't agree at all with this notion that

20 because we have so many judges that we risk

21 inconsistency. I agree whole-heartedly with Judge

22 Dwyer, that risk is minimal. If I can find a case
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1 that supports the proposition I am presenting to the

2 Ninth Circuit court of appeals, I win. If my opponent

3 does, my opponent wins. 

4 It's only in those cases that are cutting

5 edge, or that are fact driven, that there might be

6 some indecision on the part -- or some room to wiggle.

7 I agree with somebody who spoke here earlier, I

8 believe it was Judge Dwyer, who said that he does not

9 find difficulty in identifying controlling Ninth

10 Circuit law. 

11 I work daily with the sentencing

12 guidelines, which are an exceptionally gray area of

13 the law, with a lot of complexity. I can read the

14 guidelines. I can read the cases. And I can predict

15 for my clients with a lot of success or a high degree

16 of probability. And where there is gray area, that's

17 going to be a fact -- fact driven sort of situation.

18 I'm not afraid of those facts. I'm -- in

19 fact, as you may note from the judges that have

20 appeared before you, I am delighted to appear before

21 this court, and argue to them information that I feel

22 should mitigate a particular sentence. 
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1 But it's not the sort of risk that

2 translates into a reality of indecision, or

3 incoherence, or anything that would shows an empirical

4 basis for dismantling the Ninth Circuit court of

5 appeals. 

6 That standard, I think, should judge the

7 recommendations that this Commission makes, whether or

8 not judges -- Congress' ultimate decision, we don't

9 know. But that -- but it does serve, hopefully, as --

10 to identify a hedge against the politics that many of

11 the speakers have talked about, that seems to be at

12 play here. 

13 And in that regard, I think a little look

14 at history is helpful. I've read a little bit about

15 the split of the Eleventh and the Fifth. And it seems

16 to me that, in reading that, the judges and litigators

17 wanted that split, because there were problems in the

18 Fifth Circuit at the time. And they needed the split.

19 So, the judges came forward, and said,

20 here are some problems. How can we address them? Can

21 we address them this way? In the Ninth Circuit, back

22 in the very late 40's and early 50's, there was a big
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1 time move to split the circuit, and that move was

2 prompted by the circuit judges, because they didn't

3 have enough judges to do the work efficiently. And

4 they didn't have the transportation and technology

5 then to do it efficiently. 

6 Congress was getting on top of that ride.

7 And there was a bill presented to Congress to split

8 the circuit. Shortly thereafter, more judges were

9 appointed. The court created some -- to deal with its

10 docket. And their efficiency went up. And the court

11 withdrew its request for a circuit split, and it was

12 done. 

13 So, I think it's important to listen to

14 who's asking for the split when making that decision,

15 and I hope the Congress will. 

16 Have I gone on too long? 

17 JUSTICE WHITE: I don't know if you've

18 gone on too long, but you're over your time.

19 (Laughter.) 

20 MR. HILLIER: Okay. Well, I -- if I -- I

21 wanted, if I could, just to talk for a second about

22 the collegiality that I see in the circuit. And you
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1 know, I guess everybody has a different definition of

2 that. 

3 But we met last week with Judge Syd Thomas

4 from Montana, and three other circuit judges, we, the

5 defenders from the Ninth Circuit, and the Montana

6 School of Law, and the Montana Bar Association, in

7 Missoula, Montana, where the court sat to answer some

8 questions of law presented from that district, in

9 front of people from that district, and students at

10 the Montana Law School. 

11 Thereafter, the judges sat at a CLE for a

12 day and a half with defenders, and kids from the law

13 school, and people from the bar association. They ate

14 with us, they talked with us, they argued with us.

15 They debated with us. 

16 I was sitting with people who I'm probably

17 an ideological opposite of, kept coming away loving

18 the person that I spoke with, and feeling good about

19 the conversations I had with them. Learning from

20 them. And I think it's that sort of mix, that

21 collegiality, that creates the diversity that so many

22 of the speakers have talked about, and is what being
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1 in the Ninth Circuit is all about. 

2 And I respectfully urge this committee to

3 stand behind the circuit when it comes time to make

4 its recommendations. 

5 CHAIRMAN WHITE: Thank you. Which one of

6 you is Howard Goodfriend? 

7 MR. GOODFRIEND: That's me, Your Honor. 

8 CHAIRMAN WHITE: All right. You may

9 proceed. 

10 MR. GOODFRIEND: Thank you, Your Honor.

11 May it please the Commission. I am Howard Goodfriend.

12 I am in private practice here in Seattle. My practice

13 concentrates in appellate practice, both in the

14 federal courts, specifically the Ninth Circuit, as

15 well as the state courts. 

16 And I really appreciate the opportunity to

17 present my views today. I appreciate your taking this

18 long day to listen to the variety of speakers who have

19 appeared before you. 

20 I don't really have a whole lot of new

21 things to add, so I'm going to make my remarks brief.

22 I also oppose splitting the Ninth Circuit. I believe
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1 the fundamental problem facing this circuit, as well

2 as other courts of appeals around the country, is

3 inadequate resources, inadequate staffing, to keep up

4 with burgeoning caseloads. 

5 I believe that splitting the Ninth Circuit

6 would not address these problems. And in fact, it

7 would create more problems than it would solve. 

8 I have been very active in professional

9 associations and committees that focus on the process

10 and the quality of appellate decision making. And I

11 believe that the focus of this Commission should be on

12 finding the means to improve the quality of the

13 administration of justice in the Ninth Circuit, as

14 well as other circuits. 

15 And to do this, it should focus really on

16 advocating the measures that would enhance the court's

17 legitimacy, and increase the efficiency of the court,

18 as well as the public perception that it is fair in

19 adherence, even handed, as well as efficient. 

20 In order to do that, the most important

21 factor that I think undermines the legitimacy of the

22 delivery of justice is delay. The delay from --
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1 particularly, the delay in filing, in considering a

2 case after the filing of a notice of appeal. 

3 And that is more a function of inadequate

4 resources, a function of not filling existing

5 vacancies. And if necessary, creating additional

6 judicial positions.

7 I think the Commission should also study

8 the issue of the use of visiting and district court

9 judges, which have been sitting by designation on

10 Ninth Circuit panels for some time now. And should

11 formalize the process, or study the issue of whether

12 this process should be formalized to add to the

13 resources of the federal courts of appeals. 

14 Visiting, and district court judges

15 sitting by designation have been used very effectively

16 to meet the crisis in this circuit that has been

17 caused by a 35 percent vacancy rate. I think it

18 should be further studied, even if those vacancies are

19 filled, in order to meet the future challenges of all

20 the federal courts of appeals. Much as Professor

21 Resnick has advocated in prior testimony before this

22 Commission. 
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1 It would enhance the legitimacy of the

2 court if litigants and counsel had the expectation

3 each time they appeared, that there would be a

4 district court judge sitting by designation on the

5 panel in virtually every case. 

6 And I think it would also help the

7 delivery of justice in the district courts by

8 formalizing their mixing with appellate court judges

9 on a regular basis. 

10 It would also help meeting the greatest

11 challenge in the court's legitimacy, if you will, and

12 that is granting oral argument in an even greater

13 number of cases. This circuit has -- I have submitted

14 my written materials, done extremely well, in

15 carefully screening cases for oral argument, given the

16 woeful lack of resources that it has faced over the

17 last decade. 

18 But to litigants, and to counsel, and to

19 the public at large, oral argument is far and away the

20 single most important event in the appellate process.

21 It is the only time that the public gets to see the

22 appellate process in action. And to the extent that
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1 it can be delivered, in more cases, that is a goal

2 that the court should strive for. 

3 Also, additional resources, and filling

4 vacancies, and allowing district court judges to sit

5 more frequently, would allow the court to issue more

6 detailed, and well-reasoned memoranda, and written

7 opinions. 

8 Again, the Ninth Circuit I think has done

9 an exceptionally good job, given the resources at

10 hand, in publishing the opinions that are in cases of

11 complex legal issues, or novel legal issues, and not

12 publishing the ones that don't meet those criteria. 

13 I don't believe that dividing the court in

14 two or three circuits will address any of these

15 problems. And as I have said, it's going to create a

16 host of others. By simply assigning existing judges

17 to a new circuit, without increasing the resources,

18 you in fact detract from the available resources at

19 hand. 

20 And other judges who have appeared today

21 have testified about the economies of scale, and the

22 duplication of administrative cost. I think Judge
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1 Thomas testified to that this morning. It will not

2 necessarily enhance collegiality. And I firmly

3 believe collegiality is also more a function of

4 attitude, than it is of size, as Judge Boochever so

5 well testified before. 

6 Further, it's going to reduce the

7 available pool of judges sitting on cases from this

8 state. And thus, reduce the diversity of views that

9 might be brought to bear on a particular issue. 

10 And I'm not just talking about diversity

11 for diversity's sake. I also believe that it is an

12 advantage to have a more diverse, large court. Not

13 just because it increases the variety of cultural,

14 political, and philosophical views, that more

15 accurately reflect the constituencies of an increasing

16 diverse Western Pacific region. 

17 But also because the heart and soul of the

18 appellate process is the intellectual debate, the

19 give-and-take that not only occurs between counsel and

20 the court in oral argument, but occurs among the

21 judges themselves. And a diversity of views among

22 panels I believe makes for better, well-reasoned
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1 judicial opinions, by honing debate, and focusing the

2 issues. 

3 Finally, I'm going to repeat the view that

4 adding more circuits will only burden the Supreme

5 Court further, increase the instability of the law.

6 And another important factor I think which hasn't been

7 mentioned is, basically lead to increasing

8 balkanization among appellate courts in this country.

9 And we've seen with each circuit vastly

10 different procedural rules, local rules being adopted.

11 That makes it harder and harder for practitioners in

12 an increasing national bar to move from circuit to

13 circuit. 

14 I think uniformity in those rules is

15 important. And to the extent that you increase the

16 number of circuits, you detract from that. 

17 Again, I want to thank the Commission for

18 its time today. And I'll wait -- further testimony,

19 to see if you have any questions. 

20 CHAIRMAN WHITE: All right. 

21 MR. GOODFRIEND: Thank you very much. 

22 CHAIRMAN WHITE: Mike Brown? 
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1 MR. BROWN: Thank you, Your Honor. Low

2 man on the totem pole, but that's okay, because it's

3 been educational. 

4 I'm not here about the circuit split. I'm

5 here about consistent decisions among the appellate

6 panels in the Ninth Circuit. And as Judge Broomfield

7 pointed out, it's important to law uncertainty.

8 Incidentally, most of what I'm doing extemporaneously

9 here is not from the paper that I prepared, it's from

10 what I learned here today. 

11 And one of the things that Professor --

12 pointed out, in addition to consistency, delivering

13 consistent ruling in a case that appears the same is

14 what defines a successful legal system. 

15 Now, when I was first here this morning,

16 I want to give a special thanks to Chief Judge --

17 because I told him some of what I observed about the

18 Ninth Circuit. And he said, "Stick around, you'll see

19 why." And I did. 

20 As the United States Senator who was here

21 pointed out, you have 28 appellate judges, or at least

22 openings for that many. Which means you 3,276
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1 combinations of personalities. And I'm not the only

2 one to notice the inconsistency in Ninth Circuit

3 appellate rulings. If you'll go to the second page of

4 the almanac of the federal judiciary, you'll see there

5 are quite a few lawyers in this circuit that basically

6 have the same complaint. 

7 And one of the reasons that there's a lot

8 of public confidence being eroded is simply because,

9 let's face it, the average person, no matter what his

10 Congressman does, he never finds it out. On the other

11 hand, he goes in front of a judge. And the first

12 thing he's done is saying, "Hey that guy shafted me,

13 but he did something different in another case." 

14 Now, the courts are what people come in

15 contact with, more than anything else. The fact is,

16 the average guy out there, you say, "When is the last

17 time your Representative, state or federal, did

18 anything to you, or for you?" He doesn't know. 

19 All right. When is the last time you had

20 a run-in with a judge, federal, state, or whatever?

21 You have to listen to the tirade. And what I'm saying

22 here, and I'm just about wound up, believe it or not.
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1 Because most of what I already pointed out, there are

2 specific examples of contradictory Ninth Circuit case

3 law, which I find kind of unusual. 

4 Because you have some federal judges who

5 spoke here today, who say there isn't any. And then,

6 you have other federal judges who said, well, yeah,

7 that is the perception. 

8 Well, the perception is right there in the work that

9 I did. 

10 Anyway, thank you for listening to me. 

11 CHAIRMAN WHITE: Yes. We haven't heard

12 you, Eric Redman. 

13 MR. REDMAN: Thank you very much. I'm

14 sorry to be late. I thought I was going to be early,

15 but you've been proceeding quickly. 

16 My name is Eric Redman. I am a lawyer

17 with the law firm of -- White and McCullough, here in

18 Seattle, and a lifelong resident of Seattle. I

19 testified before the United States Senate in

20 opposition to a bill to split the Ninth Circuit in

21 1990. And I have a copy of my testimony which I have

22 submitted to you. And I brought copies today. 
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1 This is really the only topic that I want

2 to address. And I'm looking back to the 1990

3 testimony, I'm afraid I can't really improve on it

4 very much, even today. I think what I said then is

5 what I still believe, and what the members of my firm

6 believe. 

7 I would just comment, or try to divide

8 this into two thoughts, or two perspectives. As a

9 practitioner in front of the Ninth Circuit, about

10 splitting the Ninth Circuit, and then as a

11 Northwesterner. 

12 First, I think that you'll find, and I'm

13 sure you have heard today, that the idea of splitting

14 the Ninth Circuit doesn't come primarily, or even in

15 any significant part, from the lawyers who actually

16 practice in front of the Ninth Circuit. 

17 I think those of us who do could come up

18 with a long list of things we'd like to see to improve

19 the Ninth Circuit, but splitting it isn't what we

20 would have thought of as very high on the list. The

21 idea comes from government officials, and political

22 leaders. And it's natural that people wish to support
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1 their political leaders in efforts like that. But I

2 don't think it comes from the practitioners. 

3 Secondly, it's not really responsive to

4 any of the problems the practitioners face, or the

5 judges face. And I haven't heard any of the testimony

6 today, but I'd be surprised if any of them said very

7 much different from that. 

8 The problems of congestion, of workload,

9 of overload on the court, aren't cured by splitting

10 it. I've heard people go down that road a while

11 without really thinking it through. And I've tried to

12 say, you know, our highways in Washington States are

13 also congested, and over-crowded. And splitting

14 Washington State into two states would not reduce the

15 congestion on our highways. The sources of those

16 problems can't be solved by more jurisdictions. 

17 I have also heard interesting academic

18 debates I think about the value of en banc opinion

19 from a circuit where you can't -- the en banc panel

20 can't represent a majority of the circuit. A starting

21 point I think is mathematically, just the logic of

22 that. You're going to create more and more circuits
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1 as the country grows, until we have just a huge number

2 of circuits, this will be the problem in circuits

3 generally, if you think of it as a problem. 

4 And in any event, in any circuit, the

5 majority opinion of the en banc panel may not

6 represent a majority of the circuit, either. This is

7 really an issue about respect for precedent, about --

8 and about abiding with an en banc decision, respecting

9 it. Not about the number of members of the court who

10 are on it. 

11 And similarly, I think if you go down a

12 list of supposed problems of the circuit that

13 splitting would address, you find that they go into

14 three categories. They either aren't problems that

15 the practitioners are concerned about, although

16 practitioners are concerned about plenty of other

17 problems. 

18 They don't result from the size of the

19 court, as opposed to its workload, or the number of

20 judges. Or, they really apply to every circuit, and

21 not just the Ninth Circuit. There's no general --

22 they're general arguments, not specific ones. 
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1 Others know a lot more about those points

2 than I do, and I'm sure you've heard from them. So,

3 I would move quickly to what I think is more

4 important. And that is, as a Northwesterner. I've

5 lived all my life in the Pacific Northwest. 

6 Almost exactly thirty years ago to the

7 day, I went to work one floor above us for Senator

8 Warren Magnuson, who is often cited as the father of

9 this idea to split the Ninth Circuit. I can tell you

10 that I worked for him for many years. I knew him very

11 closely in office, and in retirement, for the

12 remainder of his entire life. 

13 I can think of hundreds of topics that he

14 raised, and that were discussed. And I never once

15 heard quality -- brought up. I know that there are

16 quotes and efforts attributable to him. But I have to

17 tell you, I think I can say, and anyone who worked for

18 him, this was never near and dear to his heart. And

19 had it been I don't know what significance that should

20 have today, in any event. 

21 If it was an idea that he promoted, I

22 suspected it was because his good friends were on the
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1 Ninth Circuit from Seattle in those days, beginning in

2 the 1940's probably complained about the difficulty of

3 the travel that was imposed upon them. And he may

4 have thought that he was helping them out. I don't

5 know. Research might show that. 

6 But the problems that this circuit

7 splitting proposal is designed to address are really

8 not problems in the court. They're problems in our

9 region. They're problems about political issues in

10 our region, interpretations of statutes that are made,

11 and come to the courts, and have to be made by judges

12 in the region, by judges here. 

13 And the sort of -- the sort of theme is

14 that the Northwest should somehow have its own court,

15 its own federal court. And I think that is just plain

16 wrong for five basic reasons. 

17 The first of all is, it's a federal court.

18 We're talking about federal law. We're not talking

19 about state law. And we need uniform application of

20 the federal statutes. 

21 The second is, it's a ridiculous fallacy

22 to suggest that where people live determines how
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1 they're going to think, or how they're going to decide

2 cases. Geography is not philosophy. All of the

3 judges of the D.C. circuit live within a few miles of

4 one another, I suspect And yet we all know that the

5 D.C. circuit can be very sharply split. 

6 And you wouldn't say, "Well, maybe let's

7 take the Virginia ones, and keep them separate from

8 the Maryland ones." It doesn't make any sense. 

9 Finally, we have plenty of

10 environmentalist judges in the Pacific Northwest, or

11 judges with environmental meanings, if that's where

12 the concern is. The decisions that really caused the

13 firestorm that led to this proposal being revived were

14 made not at the Ninth Circuit level, but at the

15 district court level, by judges right in this

16 courthouse. 

17 I also believe for the interest of the

18 Northwest that having Northwest - Southwest issues

19 resolved in courts that are Northwest and Southwest

20 combined, gives us a lot of protection in the

21 Northwest. And we should be happy about it. It

22 legitimizes the outcome of these disputes. 
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1 The ones that are most important to me,

2 that I know most about, are electric power disputes.

3 And between the Northwest and the Southwest, these are

4 very fierce. They involve hundreds of millions of

5 dollars. 

6 And in the twenty years that we've been

7 litigating them, the Northwest interests have

8 prevailed in every single case in the Ninth Circuit

9 against Californians. And the California judges have

10 always been a majority of the panel. 

11 Now, the court has worked very well in

12 inter-regional disputes. It's worked out to the

13 benefit of the Northwest. I submit that if those

14 decisions had instead been made by Northwest judge in

15 Northwest court, by now they would have been

16 overturned in Congress very quickly, simply because

17 the Californians have so much more representation. 

18 So, to think that we are harmed by being

19 yoked with this populous state in a court system seems

20 to me very short sighted. And to select certain

21 issues, and not look at other ones, where we've been

22 tremendously protected by that. 
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1 And then there's the whole issue of the

2 West coast itself. I would think that the West coast

3 is an economic region. From Southern California to

4 the tip of Alaska, we've got a coastline twice as long

5 as the East coast of the United States. 

6 We have only four states. They are really

7 economically integrated in a way the East coast isn't,

8 couldn't be, for historical reasons. And there's a

9 big benefit to the less populous and more northerly of

10 the states of having that integration. 

11 We all face the Pacific rim. We're a part

12 of the Pacific rim. And when we go to the other side

13 of the ocean, look back, the idea that there's uniform

14 federal law up and down this coast is a tremendous

15 benefit, I think, to other parts of the coast and

16 California, who would like to attract foreign

17 investment and foreign confidence. 

18 So, I remember when I gave the testimony

19 in 1990, Judge Goodwin said that the splitting the

20 circuit was a time whose time had not come. I would

21 say it's an idea has passed -- it's not responsive to

22 any problems that have been faced. It's not in the
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1 interest of the Pacific Northwest. And I hope that it

2 will not be recommended. 

3 Thank you very much. 

4 CHAIRMAN WHITE: Thank you very much. Any

5 questions? 

6 COMMISSIONER: I have one I think I'd like

7 to ask. I have a question for Mr. Hillier. As I

8 understood you, you said you have no particular

9 problem with consistency and coherency in the

10 decisional law of the circuit. And then you went on

11 to say something that seemed on its face to be

12 inconsistent with that. 

13 And that is that you repeatedly and

14 frequently lose on appeal. If the law of the circuit

15 is predictable and consistent, why should that be the

16 case? Why are you taking appeals, and you can predict

17 you would lose? 

18 MR. HILLIER: Well, there's -- the main --

19 the main reason for the one mass record, well, I mean

20 there's a lot of reasons, some of which are more

21 philosophical, and not responsive to your question. 

22 But appeal is a matter of right, even --
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1 appeals in the federal court system. And the federal

2 sentencing -- and then, that's why a lot of cases go

3 forward that perhaps don't have the merit that I would

4 prefer when I took the case up on appeal. 

5 And you know, frankly, I was being a bit

6 facetious. We don't lose quite as often as I

7 suggested. But -- 

8 COMMISSIONER: When you lose, could you

9 reasonably predict that you would lose? 

10 MR. HILLIER: Yes. Yes. You know, I go

11 in optimistic on every one. By the time I've finished

12 oral argument I think I've won. But when I stand

13 back, and I look at the facts and the law, in certain

14 cases, I can see that I'm simply not going to win,

15 given that fact pattern, and given the law that

16 exists. 

17 I'm arguing a point that's usually, that

18 the court has abused its discretion in deciding on

19 these facts, that this particular sentencing

20 application -- 

21 COMMISSIONER: Why? 

22 MR. HILLIER: -- and as you know, those
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1 sorts of standards are very difficult to jump over and

2 win at the court of appeals level. 

3 COMMISSIONER: Mr. Hillier, Professor

4 Meador's question, criminal cases, of course, are

5 different than civil cases. And surely you have

6 clients who you advise don't go to trial before this

7 district judge, or any district judge; this case is a

8 terrible case to take to trial. 

9 And they look at the sentencing

10 consequences and say, "What have I got to lose? I

11 might get lucky in the district court." That same

12 client, if he loses in the district court, is, by law,

13 the district judge is required to advise him in some

14 detail about his right to appeal. And -- but it is an

15 absolute right that he can exercise it, whether his

16 lawyer thinks it's a good idea or not. 

17 Do you think in both of those cases, the

18 criminal case is different from the civil case, in

19 terms of why cases proceed to trial, or why cases go

20 up on appeal? Is my question clear? 

21 MR. HILLIER: Well, I think there are

22 probably huge, fundamental differences. And the
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1 nothing to lose phrase attaches to both. And I think

2 there's a lot to lose, probably, in the civil

3 litigation, if you take an appeal that's frivolous,

4 and you've got a bond that's developing interests, and

5 those sorts of --

6 I mean, I don't do that, Judge, and you

7 know better than I. But it would seem to me that

8 there are economic factors that militate against a

9 frivolous appeal. Whereas, when somebody is looking

10 at ten years, and they're going to be sitting there,

11 wondering, well, what if I -- you know, I don't like

12 what the judge said. 

13 The judge said, "I don't want to give this

14 sentence, it's unfair." I mean, that defendant is

15 going to want to appeal that. The judge said it was

16 unfair, you know? He said his hands were tied, and --

17 but he said it was unfair. And maybe the law will

18 change some day, so let's go forward. 

19 So, that motivates a lot of those appeals.

20 But the case law, you know, it's there, and we're

21 faced with it. And we try to -- 

22 COMMISSIONER: Same problem we district
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1 judges have. 

2 CHAIRMAN WHITE: Thank you very much. We

3 do appreciate all of your help to the Commission. And

4 we will see you down in -- what's the name of that

5 city? (Laughter.) 

6 UNIDENTIFIED: San Francisco. 

7 (Whereupon, the hearing was adjourned at

8 5:35 p.m.)

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1