Statement of

Procter Hug, Jr.

Chief Judge

United States Courts For the Ninth Circuit

708 Bruce Thompson United States Courthouse

400 S. Virginia Street

Reno, Nevada 89501

(775) 686-5949

Before the Subcommittee

On Courts and Intellectual Property

Of the House of Representatives

On Review of the Report by the

Commission on Structural Alternatives

For the Federal Courts of Appeals

July 22, 1999

Summary

The Commission on Structural Alternatives for the Federal Courts of Appeals concluded that the Ninth Circuit should not be split. The great majority of the judges and lawyers in the Ninth Circuit agree.

The Commission stated: "There is no persuasive evidence that the Ninth Circuit (or any other circuit, for that matter) is not working effectively." It also stressed that maintaining a consistent body of federal appellate law in the Western States and Pacific Rim is a strength of the circuit that should be maintained.

Yet, having indicated that the Ninth Circuit is working effectively and stressing the importance of continuing to maintain consistent law throughout the entire circuit, the Commission proposed legislation that would make a radical change in the structure of the Ninth Circuit Court of Appeals. This structural change would undermine, rather than enhance, the important goal stressed by the Commission of maintaining consistent federal law throughout the Western States and Island Territories composing the Ninth Circuit.

The proposed legislation would require a revised method of operation for the Ninth Circuit Court of Appeals through three semi-autonomous adjudicative divisions, with the State of California being split between two divisions. There would be an additional court of 13 judges selected from the divisions to resolve only direct conflicts between divisions. This structure has serious disadvantages.

• Neither the panel decisions nor the en banc decisions of any division would bind the other divisions. A circuit-wide en banc hearing for any purpose other than resolving direct conflicts would be abolished. The maintenance and development of consistent circuit law would be seriously hampered.

• The proposed Circuit Division would add an additional level of appeal before finality, resulting in additional expense and delay for litigants.



• The proposal would eliminate the present participation of all judges circuit-wide in resolving circuit law, and would impose serious practical problems in randomly assigning judges among the divisions for three-year terms.

• The likelihood of inconsistent interpretations of federal law would exist throughout the circuit and would not be adequately addressed by the proposed conflict resolution mechanism of the Circuit Division. Because California would be split between two divisions, there would be different interpretations and enforcement of the law in California.

My view that the disadvantages far outweigh any advantages of the proposed restructuring is shared by a great majority of the judges on the Ninth Circuit Court of Appeals, the Ninth Circuit Judicial Council, the Association of District Judges of the Ninth Circuit, and the United States Department of Justice. The Chief Judges of eight other circuits state that their courts oppose a divisional structure for their circuits.

Mr. Chairman, Members of the Subcommittee:

Thank you for the opportunity to discuss with you the Final Report by the Commission on Structural Alternatives for the Federal Courts of Appeals. My name is Procter Hug, and I am the Chief Judge of the United States Courts for the Ninth Circuit. I have been a member of the Ninth Circuit Court of Appeals for 21 years.

The Commission was created in the wake of a bill to split the Ninth Circuit into two circuits. Its mission was to study not only the Ninth Circuit but the entire intermediate appellate court structure between the trial courts and the Supreme Court. In undertaking its task, the Commission was concerned with how the circuit courts of appeals were operating, whether the Ninth Circuit or any circuit, should be split, and formulating recommendations for other possible structural changes.

I think that the Final Report the Commission rendered has made a valuable contribution to the understanding of the federal appellate court system. The research placed the current appellate court structure in historical perspective, and gathered important statistical information affecting the courts. It also compiled a thorough profile of the method of operation of each of the circuit courts of appeals, so that each of our circuit courts can benefit from the creative ideas from other circuits.

The Commission developed several important conclusions that have been reflected in its Final Report.

There is no persuasive evidence that the Ninth Circuit (or any other circuit, for that matter) is not working effectively, or that creating new circuits will improve the administration of justice in any circuit or overall. Furthermore, splitting the circuit would impose substantial costs of administrative disruption, not to mention the monetary costs of creating a new circuit. Accordingly, we do not recommend to Congress and the President that they consider legislation to split the circuit.

. . .

There is one principle that we regard as undebatable: It is wrong to realign circuits (or not realign them) and to restructure courts (or leave them alone) because of particular judicial decisions or particular judges. This rule must be faithfully honored, for the independence of the judiciary is of constitutional dimension and requires no less.

. . .

Maintaining the Court of Appeals for the Ninth Circuit as currently aligned, respects the character of the West as a distinct region. Having a single court interpret and apply federal law in the western United States, particularly the federal commercial and maritime laws that govern relations with the other nations on the Pacific Rim, is a strength of the circuit that should be maintained.

. . .

Any realignment of circuits would deprive the west coast of a mechanism for obtaining a consistent body of federal appellate law, and of the practical advantages of the Ninth Circuit administrative structure.

The Commission concluded that the Ninth Circuit not be split. That conclusion corresponds with the overwhelming opinion of the judges and lawyers in the Ninth Circuit, as well as statements of others concerned with this issue who submitted written statements or gave oral testimony before the Commission. Among those opposing the division of the Ninth Circuit were the following:

• 20 out of the 25 persons testifying at the Seattle Hearing of the Commission.



• 37 out of 38 of the persons testifying at the San Francisco Hearing of the Commission.



• The Governors of the States of Washington, Oregon, California, and Nevada.



• The American Bar Association.



• The Federal Bar Association.

• The United States Department of Justice and the United States Attorneys within the Ninth Circuit.



• All of the Public Defenders within the Ninth Circuit.



• Respected scholars: Charles Alan Wright, Arthur Hellman, Anthony Amsterdam, Erwin Chemerinsky, Judy Resnik, Jessie Choper, and Margaret Johns.



• The past Director of the Federal Judicial Center, Judge William Schwartzer.



• The chairman of Long-Range Planning for the U.S. Federal Courts, Judge Otto Skopil.



• A great majority of the judges and lawyers in the Ninth Circuit.

Having strongly opposed splitting the Ninth Circuit, the Commission proceeded further to recommend legislation for a revised method of operation for the Ninth Circuit Court of Appeals through intra-circuit adjudicative divisions that amounts to a de facto split of the court of appeals. The essential question then becomes whether the suggested revision of the operation of the court of appeals accomplishes the acknowledged goal of having a single court interpret and apply federal law in the nine Western United States and the Island Territories in an efficient and effective manner, better than its present method of operation. It clearly does not.

When a whole new concept of operation of the courts of appeals is proposed, the burden should be upon those proposing the change to show that a particular proposal will operate more efficiently, effectively, and better advance the cause of justice than the time-tested procedures that have been in operation for many years. "Circuit restructuring should occur only if compelling empirical evidence demonstrates adjudicative or administrative dysfunction in a court so that it cannot continue to deliver quality justice and coherent, consistent circuit law in the face of increasing workload." Long Range Plan of the Federal Courts (1995). That burden has not been carried.

The position of the Ninth Circuit expressed to the Commission is that it is working well and that a great majority of the judges and lawyers in the Ninth Circuit are satisfied with its current structure. This was confirmed by the survey of the Commission, in which over two-thirds of the judges in the Ninth Circuit expressed that opinion.

The Commission has proposed that the Ninth Circuit Court of Appeals be divided into three semi-autonomous adjudicative divisions, with the State of California being split into two separate divisions. Panel decisions decided in one division would not be binding precedent in either of the other divisions, and each division would have an independent en banc procedure that would have no precedential effect in the other two divisions. There would be an additional court of 13 judges selected from the divisions to resolve only direct conflicts between the divisions. The likelihood of inconsistent interpretations of federal law would exist throughout the circuit and would not be adequately addressed by the proposed conflicts resolution mechanism. Because California would be split into two divisions, there would also be a substantial risk of different interpretations and enforcement of the same state law in California.

In January of 1999, I prepared an Analysis of the Final Commission Report, in which I expressed wholehearted agreement with the Commission's major conclusion that the Ninth Circuit should not be split, but serious disagreement with the divisions recommended for the Ninth Circuit Court of Appeals. I submitted this Analysis to a meeting of our active and senior judges on January 11, 1999. Of the 35 active and senior judges voting, 25 judges voted to approve the Analysis, 4 judges voted to approve the Commission's recommendation of the creation of divisions for the court of appeals, 4 judges voted for a circuit split, and 2 judges abstained.

I am drawing my remarks today from the Analysis, and I am thus confident that I speak for the great majority of the judges of our circuit court. I have attached a copy of that Analysis to my written statement and it provides more detail than I am able to discuss in this oral presentation. On March 31, 1999, I sent a letter to each member of Congress, in which I enclosed a copy of the Analysis. With your extremely busy schedules, you may or may not have had an opportunity to review it. What I point out in the Analysis is that this is a major change in the operation of the circuit court of appeals, it is not justified by the findings of the Commission, and is a de facto split of the Ninth Circuit Court of Appeals. It frustrates the very important goal acknowledged by the Commission, to maintain a consistent body of law throughout the nine Western United States and the Island Territories.

In its draft report, the Commission recommended legislation to implement this divisional approach not only for the Ninth Circuit, but for the other circuits when the number of judges on their courts of appeals exceeded 17 active judges. I think it was most significant that the Chief Judges of the First, Second, Third, Fourth, Seventh, Eighth, and DC Circuits responded with a joint letter expressing strong opposition of their circuit courts to any such divisional restructuring. They said, "The whole concept of intra-circuit divisions, replete with two levels of en banc review, has far more drawbacks than benefits." The Chief Judge of the Fifth Circuit sent in a separate letter, expressing the concern and reservations that circuit has about the divisional approach. The Chief Judge of the Second Circuit sent in an additional separate letter, emphasizing the strong opposition of that court. Thus, all of the other circuits that responded to the Commission expressed their opposition to the divisional approach. This, no doubt, resulted in the Commission's modifying its draft report and proposed legislation to eliminate the mandatory requirement for the creation of divisions in the other circuits. The requirement became strictly optional for the other circuits, leaving the Ninth Circuit conscripted as the guinea pig to implement this untested drastic change that we believe is seriously flawed.

There were many others who responded opposing the divisional structure, as I have detailed in the Analysis. Some of these were by:

The United States Department of Justice

Senator Dianne Feinstein

Former California Governor Pete Wilson

(present California Governor, Gray Davis,

recently announced a similar view)

The Ninth Circuit Court of Appeals

The Ninth Circuit Judicial Council

The Association of District Judges of the Ninth Circuit

The Federal Bar Association

The Sierra Club Legal Defense Fund

The Los Angeles County Bar Association

The Chief Judges of the First, Second, Third, Fourth,

Fifth, Seventh, Eighth, and DC Circuits

The New York City Bar Association

The Federal Bar Council's Committee on the

Second Circuit Courts

The Chicago Council of Lawyers

The response of the United States Department of Justice, which participates in 40% of the litigation in the federal courts, bears particular note. It responded to the Commission, vigorously opposing the divisional restructuring of the Ninth Circuit or any circuit. It stated, "That proposal would have potentially adverse repercussions for the administration of justice in the Ninth Circuit and, ultimately, across all federal courts of appeals."

The Commission acknowledged that there is no persuasive evidence that the Ninth Circuit is not working effectively. It emphasized the importance of maintaining consistent circuit law throughout the nine Western United States and the Island Territories. Yet, it proposed structural changes that will impede that important objective, which neither the Ninth Circuit nor any other circuit wants to adopt. It is thus very important to examine the reasons why this radical change in structure was necessary or desirable for the Ninth Circuit.

The Commission stated that it had reviewed all of the available objective data routinely used in court administration and found that while there are differences among the courts of appeals, it is impossible to attribute them to any single factor, such as size. In considering the subjective data, the Commission noted that the district judges of the Ninth Circuit do not find the law any more unclear than the judges in other circuits. The Commission then noted that the lawyers of the Ninth Circuit found "somewhat" more difficulty in discerning circuit law and predicting outcomes of appeals than lawyers elsewhere. Thus, the Commission acknowledges that the conclusion of a need for a major structural change in the Ninth Circuit Court of Appeals is not based upon any objective findings. The subjective findings only identified rather minor differences expressed by the Ninth Circuit judges and lawyers, compared to the judges and lawyers of other circuits. This hardly justifies such a radical change.

It is not realistic to believe that consistent law can be maintained in the Ninth Circuit under the divisional structure when panel decisions are not binding throughout the circuit, and when there are three separate en banc courts with no participation of judges throughout the circuit in those decisions. The 13-judge Circuit Division that resolves only direct conflicts between divisions cannot maintain consistent circuit law. Under the present structure, panels are bound to follow the precedent of other panels, and they try their best to do so. Under the proposed system, there is no obligation to follow the precedent of the panels of the other two-thirds of the court. This is certain to develop greater inconsistency in panel decisions. The law of the divisions will inevitably drift apart with little hope of keeping the consistent circuit law that we now enjoy in the Ninth Circuit or restoring it if the legislation is enacted and found to be a serious mistake.

Under the present structure of the court of appeals, we have a viable mechanism that maintains the consistency of law throughout the entire circuit. Panel decisions of all of the judges are binding throughout the entire circuit. The limited en banc procedure provides a mechanism whereby all judges participate in the en banc process by the "stop clock" procedure, requests for en banc, memos circulated to the entire court arguing for and against en banc review, and by a vote of all of the active judges on whether to take a case en banc. There is full participation of all our judges in resolving circuit law.

When a case is taken en banc, the en banc court reviews the full case for purposes of clarifying the circuit law, resolving conflicts, or considering questions of exceptional importance to establish the law of the circuit. There is no additional level of appeal, as there would be with the divisional approach, and there is no litigation upon whether an opinion reflects a direct conflict between divisions or merely distinguishes cases involved, as there would be with the divisional approach.

Our circuit court has the advantage of the diversity and background, experience, and geographical identity of a large number of judges that provide important insights into the applications and development of the federal law throughout the nine Western United States and Island Territories. The stated advantages asserted for the divisional approach are heavily outweighed by the disadvantages.

The disadvantages may be summarized as follows:

• There is no participation of all judges circuit-wide in resolving the circuit law as at present. The only participation is within the division.



• Resident judges within a division that are assigned to another division would not participate in panels within the resident division for a three-year period and would, for that period, have no say in the en banc consideration of panel decisions within the division of their residence.



• The proposed Circuit Division court would be an additional level of appeal before finality, involving additional expense and delay.



• The resolution of conflicts by the Circuit Division court would be by 13 judges, not representative of the full court or proportionately representative of the divisions. The Circuit Division would create a category of what, in effect, would be Super Court Judges, for three-year terms with greater power in determining the law of the circuit.



• There would be no participation of judges throughout the circuit in the decisions of the Circuit Division, as to whether it should take a case or not take a case or let a panel decision stand.



• There are statutory problems lurking in the new procedure, two of which I identify in the Analysis but others in an untested procedure could well surface in the future.



• The practical operation of the divisional approach becomes administratively complex in the manner in which the judges are designated to be assigned among divisions, and the manner in which the Circuit Division is to operate, as I have shown in the Analysis.

It is gratifying that the Commission recommended that the Ninth Circuit not be split and recognized the importance of having a single court interpret and apply federal law in the Western United States. However, the evidence does not justify the recommended change to a divisional structure of the Ninth Circuit Court of Appeals. The disadvantages of such a structure far outweigh the claimed advantages and do not justify disrupting a court that the great majority of judges and lawyers within the circuit are convinced is operating efficiently and effectively. The Ninth Circuit has always been willing to re-evaluate itself, its performance, and to experiment with innovations that would lead to greater efficiency and effectiveness. The annual evaluation of the Ninth Circuit's long range plan is specifically designed to do so. Concerns that have surfaced in the Final Report of the Commission can be addressed with far less disruption than a whole new divisional structure. At the present, they are being addressed by a special Evaluation Committee that I appointed specifically for that purpose.

The Committee, chaired by Senior Circuit Judge David Thompson, is composed of Ninth Circuit judges from different regions of the circuit, as well as a representative from the district court bench, a prominent scholar of the federal appellate courts, and an experienced appellate practitioner. The Committee has met over the past several months on numerous occasions and has made a special effort to meet with representatives of the bench and bar throughout the Ninth Circuit in order to get a wide spectrum of participation in the evaluation process.

In conclusion, with the Commission having acknowledged, after extensive study, that there is no persuasive evidence that the Ninth Circuit is not working effectively. There is no justification for mandating this drastic change in structure that will impede, not enhance, the continued development of consistent circuit law throughout the nine Western United States and the Island Territories. The other circuits have all opposed the divisional structure and it has been made optional for them. The Ninth Circuit should be treated the same as the other circuits and should be given the same option.

Analysis attached.