Statement of Senator Jon Kyl

Hearing before the House Judiciary Committee

Ninth Circuit Commission

Thursday -- 22 July 1999

I. Overview

I would like to thank Chairman Hyde for holding the hearing.

As a Senator from Arizona (the state which generates more appeals than any other Ninth Circuit state except California), a member of the Judiciary Committee, and as someone who practiced law in the Ninth Circuit for nearly 20 years, I have a keen interest in matters affecting the Ninth Circuit. It seems clear that the Ninth Circuit has problems. I agree with Justice White and the Commission that changes are warranted.

Indeed, in a letter to the Commission, Chief Justice Rehnquist noted, as an example, a case that the Supreme Court was about to hear: Hughes Aircraft v. Jacobson. The case was argued and submitted to the Ninth Circuit in November 1993. The Ninth Circuit opinion deciding the case was not filed until January 1997. The petition for rehearing was denied by the Ninth Circuit in October 1997 -- nearly four years after oral argument!

Additionally, in a letter to the Commission, Justice O'Connor -- who is the Circuit Justice for the Ninth Circuit -- stated that "the circuit is simply too large" and that "some division or restructuring of the Ninth Circuit seems appropriate and desirable." She pointed out that the Ninth Circuit resolved only eight out of 4,841 cases en banc in the twelve month period ending September 30, 1997. During that same period, the Supreme Court granted hearing on 25 Ninth Circuit cases, and summarily decided 20 more! As she wrote, "these numbers suggest that the present system in the Ninth Circuit is not meeting the goals of en banc review."

Perhaps the most telling are the statistics in Justice Scalia's letter. During a recent five-year period, the Ninth Circuit disposed of an average of 17.2 percent of all Circuit Court cases, but Ninth Circuit cases occupied an average of 25.3 percent of the Supreme Court's docket -- a share that is larger by almost half. Additionally, Justice Scalia noted that for a recent six-year period, the Ninth Circuit's reversal rate by the Supreme Court was 81 percent, and the average for all other courts was 57 percent.

II. Commission Report and the Ninth Circuit

At the outset, I would like to compliment the Commission for its thoughtful, constructive recommendations. I think that the Commission's report will be helpful to Congress. My principal concern is that, while the Commission's proposal of organizing the Ninth Circuit Court of Appeals into regional adjudicative divisions is good in concept, the proposed divisions are deficient because they provide at best a short-term solution.

Additionally, from the Commission's report, it is unclear why the Commission configured the divisions the way it did. Ultimately, the question of reconfiguration depends on what factors are assigned the highest value -- for example, caseload, population, contiguity, keeping California intact, geographic affinity, having no more than three divisions, etc. The Circuit could be divided or split many ways depending on which factors are the driving considerations.

III. Commission Proposal is a Short-term Solution

I would like to briefly discuss my concern that the Commission's proposal provides only a short-term solution. Under the Commission's proposal, the Southern Division -- which contains the Districts of Arizona and Central and Southern California -- has 47 percent of the Circuit's caseload and 46 percent of its population. The Southern Division would be bursting at the seams from day one -- and the situation would quickly grow worse.

Consider the following: Southern California is the Circuit's fastest growing region in terms of caseload. From 1987 to 1997, the appeals from the Southern District of California increased 143.8 percent and appeals from the Central District increased 74.5 percent. Further, Los Angeles, San Diego, and Phoenix are the Circuit's three most populous cities and are, respectively, the second, sixth, and seventh most populous cities in the nation. Also, Arizona and Nevada contain seven of the nation's 22 fastest growing cities. In short, putting Arizona and Southern California -- two of the most rapidly growing regions -- in the same division would seem to provide, at best, a temporary solution, and prove unworkable in the near future.

Very soon, these components of the proposed Southern Division wold have to be divided into two roughly equal parts. That seems impossible without a reconfiguration of all divisions.

IV. California

In any plan to restructure the Ninth Circuit, California is the key component. If it is important to keep California intact, then perhaps it would be best for California to constitute a separate division or a separate circuit. With more than 60 percent of the Ninth Circuit's caseload, California would still be one of the nation's largest circuits in terms of caseload and population -- and the remainder of the circuit would be a reasonable size.

Finally, I am aware of the oft-expressed view that a circuit should be comprised of at least three states to maintain a federalizing and regionalizing function. But it might be more prudent to have a state such as California its own circuit or division. Indeed, if California were its own circuit or division, it would have a larger caseload than seven of the remaining eleven circuits. Perhaps concerns about bifurcation should outweigh fealty to a "three-state" rule. Having one state comprise a circuit or a division seems reasonable considering that in many circuits one state dominates.

V. Arizona

I would like to conclude by discussing my home state of Arizona. Arizona is in a unique position. As I mentioned at the beginning of my remarks, the Commission noted that Arizona generates more appeals than any other Ninth Circuit state except California. Additionally, Arizona is in an interesting geographic position, as it borders California and the Tenth Circuit (as well as Mexico).

The Commission discussed three alternate proposals which had merit. In one of these, Arizona is moved to the Tenth Circuit. In a letter I sent to the Commission after its draft report was issued, I asked the Commission examine the feasibility of moving Arizona to the Tenth Circuit. Unfortunately, the Final Report contains the same two-sentence discussion that was in the draft report.

I would also like to discuss the possibility of a four-way division with Arizona and Nevada in the same division.

For a more enduring partition, this approach seems reasonable. No division would come close to the 47 percent caseload in the Commission's proposed Southern Division, and (given the rapid increase in population and caseload in Arizona and Nevada) the Western Division would soon have at least 21 percent of the Circuit's caseload -- a percentage that the Commission has deemed acceptable.

VI. Conclusion

In sum, I think that the division concept is good, but the specific plan which puts Arizona with Southern California is not workable because population and caseload statistics show that it is at best a short-term fix. Additionally, California should not be divided unless it is going to result in some permanently and roughly equal caseload distribution; the Commission's recommendation does not accomplish that.

As Justice Kennedy wrote in his letter to the Commission, "[a] court which seeks to retain its authority to bind nearly one fifth of the people of the United States by decisions of its three-judge panels, many of which include visiting Circuit or District Judges, must meet a heavy burden of persuasion." Clearly, the time is now for some change. We need to continue this discussion to come to some resolution for the future.