STATEMENT OF CIRCUIT JUDGE ALEX KOZINSKI

TO THE HOUSE JUDICIARY SUBCOMMITTEE ON COURTS

October 21, 2003

Re: HR 2723

I appreciate the opportunity to appear before you today. My name is Alex Kozinski. I was appointed to the Ninth Circuit in 1985 by President Ronald Reagan, and I maintain my chambers in Pasadena, California. I am here today to speak in opposition to HR 2723, the Ninth Circuit Court of Appeals Judgeship and Reorganization Act of 2003.

The question before the subcommittee is how best to administer justice in the region covered by the Ninth Circuit, and whether HR 2723 achieves that purpose. I submit it does not. Dividing a circuit should not take place to make the lives of judges or lawyers easier or cozier, or to reduce travel burdens. It should only take place when there is demonstrated proof that a circuit is not operating effectively, and there is a consensus among the bench and bar and public that it serves that division is the appropriate remedy.

I plan to focus my remarks on three subjects which I believe demonstrate that this circuit functions effectively. The first is the systems our court has in place to maintain consistency of law; second, our en banc process; and third, the use of technology in managing a large appellate court. Not surprisingly, all three of these subjects are interconnected.

Consistency of law: One of the concerns expressed about a large circuit is its ability to achieve consistency in dispositions, and the ability of its judges to monitor opinions. The Court must be able to recognize potential or perceived conflicts early and address them directly and immediately. To that end, the Court established a system of inventorying cases to make sure that issues were identified in each case, placed in a database and monitored to make sure that panels were alerted as to all other pending cases in which the same issue was being raised. This system of identifying issues and grouping cases, which is unique among the circuits, allows for efficient resolution of scores of cases at a time once the central issue is decided by a panel. For example, after a final decision issued in Magana-Pizano v. INS, 200 F.3d 603 (9th Cir. 1999), which the Court had designated as the lead case raising immigration law issues regarding the retroactivity of a section of the Antiterrorism and Effective Death Penalty Act, one three-judge panel was able to resolve approximately ninety cases involving the same issues in a single sitting.

The Court=s Pro Se Unit efficiently processes more than one third of our cases each year, proposing resolutions in cases in which procedural problems dictate the result or when the decision is compelled by existing case law. In addition, the Court issues pre-publication reports circulated to members of the Court to advise them two days in advance of the filing of every published opinion, and to identify cases pending before the Court that might be affected by the opinion. The Court also implemented a website on which published opinions were available immediately upon filing to members of the Court and the public. The Court continues to refine its practice of grouping for oral argument cases involving similar issues, in order to promote consistency, and to advise the lawyers in those cases of such groupings so they can coordinate their oral arguments before the Court.

The Court adopted an experimental rule that allows parties to cite to unpublished decisions of the Court in a petition for rehearing or a request for publication. That rule has been in place for more than two years, and was recently extended. Very few requests are made, and to date neither requests for publication nor petitions for rehearing have identified a legitimate conflict among unpublished dispositions or published opinions.

Some judges complain about the difficulty in keeping up with reading the number of published opinions from our Circuit. That problem, if there is one, is not confined to our Circuit. Other circuits with fewer judges also have a high number of published opinions. For example, both the Seventh and Eighth Circuits issued more than 600 published opinions last year; our circuit published approximately 800. The sheer number of judges and law clerks examining our opinions makes it unlikely that any opinion will evade scrutiny for consistency and for legal soundness. More important, with the advances of computer aided legal research as well as the court=s internal issue tracking system, one can get up to the minute information on the state of the law in a given subject matter with the stroke of a few keys.

We must also bear in mind that it is healthy to have a large number of published opinions in a circuit. It provides binding guidance to district courts and prevents an issue from being litigated repeatedly. It provides for the uniform application of federal over a large geographic area. Circuit division means that same issue will be litigated twice, and will necessarily result in the repetitive, or conflicting, resolution of issues. Dividing the circuit will result in judges duplicating their legal work. In other words, the same legal issue has to be decided twice. Thus, judicial resources are wasted, as well. The fact that a large number of judges look at a decision to decide whether it should be taken en banc means that cases get a much more thorough review in a large circuit. The process often results in corrective amendments.

Although not directly related to the consistency of the court=s opinions, critics cite to a possibility of innumerable combinations of three judge panels in our circuit and the perceived problem in not sitting with other circuit judges on a regular basis, and how this might affect a consistent body of circuit law. I submit that is a non-problem. Our judges are well acquainted with one another and communicate constantly. It is a benefit to the development of the law of a circuit and the public it serves to have a diverse group of judges who approach the law from different perspectives and backgrounds. It is healthier than having the same three judges sit together for a year, who differ very little with one another, and who may feel some pressure to go along.

The En Banc Process: Members of the Court are extremely active in the en banc process, which is the ultimate mechanism for altering decisions of a three judge panel. Most split advocates point to our en banc procedures and how only eleven judges sit as the en banc court rather than the full court of 28 authorized judgeships. Here is what they almost never point out: every active Ninth Circuit judge participates in the decision whether to take a panel decision for en banc review. Extensive memoranda are exchanged and the commentary reflects the wide range of views on the subject matter of the appeal. The vote requirement is a statutory mandate B no matter the size of a circuit, a majority of the active judges must vote affirmatively for en banc review to occur. 28 U.S.C. ' 4(c). There have been proposals to lower that requirement, most recently by Senator Feinstein, and that seems a far less costly and divisive approach than circuit division.

And in the unlikely event that six judges might command a majority of an 11-judge en banc court and express a view inconsistent with the views of the other 21 active judges on the court, the circuit rules provide for review by the full court upon the request of any judge. This has never happened since the limited en banc rule was adopted by the Court in 1980. The Court accepts the decision of the en banc court as the law of the circuit.

Technological Advances: The advances in technology in the past quarter century have transformed the world, and that world includes the court system. The Ninth Circuit was the first circuit to institute an automated docketing system; we are now on the verge of an electronic web-based filing system. The use of instantaneous electronic mail has allowed circuit judges over wide geographic distances to communicate as if they were in the same courthouse. Videoconferencing for motion panels, and administrative meetings has become common place.

As noted earlier, the court=s ability to manage its caseload, and to track novel and potential precedential though the use of computer programs has allowed this court to function more efficiently today than it ever has. I believe that HR 2723 would impede much of the progress we have made in managing a large appellate court.

As Chief Judge Schroeder referred to in her remarks, our Court=s recent experience with the Recall case in California of Governor Gray Davis demonstrated how well and efficiently a large appellate court can work. The complaint in the case was filed in the district court in Los Angeles on August 7, 2003. The district judge denied the application for a temporary restraining order on August 20, 2003, and a notice of appeal and motion to expedite was filed on August 27, 2003. Following expedited briefing by the parties, oral argument took place before a three-judge panel in Pasadena on September 11, 2003. The three-judge panel issued its per curiam decision on September 15, 2003 reversing the district court and enjoining the October 7, 2003 election. During this time, all of the pleadings in the case along with the digital recording of the September 11 hearing were immediately made available on our court=s web page.

The three-judge panel stayed its opinion to allow the parties to pursue further appeals, through en banc review at the Ninth Circuit or through the Supreme Court of the United States. This Court voted to take the case en banc on Friday, September 19, 2003 and oral argument took place the following Monday, September 22, 2003 in San Francisco. All eleven members of the en banc court traveled to San Francisco for the argument. Oral argument was televised live on a number of television networks. The en banc court of eleven judges issued its unanimous per curiam opinion the next day, September 23, 2003, affirming the district court and allowing the election to proceed as scheduled. The parties did not file any further appeals with the Supreme Court of the United States. The election proceeded as scheduled on October 7, 2003.

The system worked and it worked exceedingly well.

Thank you for allowing me the opportunity to testify.