Office of the Attorney General

Alan G. Lance

Written Testimony for

The Congress of the United States

House of Representatives

Committee on the Judiciary

Subcommittee on Courts, the Internet, and Intellectual Property

July 23, 2002, 10:00 a.m.

Room 2141 Rayburn House Office Building

In support of

H.R. 1203, the Ninth Circuit Court of Appeals Reorganization Act of 2001

Chairman Coble and members of the Subcommittee on Courts, the Internet, and Intellectual Property:

My name is Alan G. Lance and I am the Attorney General of the State of Idaho. It is an honor to represent the legal interests of the State of Idaho in support of H.R. 1203, the Ninth Circuit Court of Appeals Reorganization Act of 2001.

The State of Idaho is one of nine states located within the Ninth Circuit. The people of Idaho count on the court to resolve legal disputes involving federal laws and issues arising under the Constitution of the United States. They expect the court to deliver timely and reliable justice.

Idahoans are also keenly aware of the problems associated with the Ninth Circuit’s sheer size. Those problems include delay in receiving final decisions from the court, an enormous backlog of cases awaiting action, and the inability to have confidence in the court’s decisions. Idahoans know the Ninth Circuit is too big to function effectively as an appellate court.

The State of Idaho stands solidly in support of H.R. 1203. In 1998, members of the Idaho State Bar voted overwhelmingly in favor of splitting the Ninth Circuit and creating a new Twelfth Circuit Court of Appeals. Former Governor Batt and current Governor Kempthorne have spoken out in favor of a split. Both of Idaho’s Ninth Circuit judges, Thomas G. Nelson and Stephen Trott, support a split. In 1995, shortly after I began my first term as Idaho’s Attorney General, I joined with the other four northwestern Attorneys General in urging Congress to split the Ninth Circuit and create a new Twelfth Circuit Court of Appeals.

The Ninth Circuit is simply too big, too slow, and too unreliable. The objective measures of justice provide all the evidence necessary to justify a split and creation of a new federal circuit court. The facts, as they currently exist, compel me to urge the Congress to take action this year by passing H.R. 1203.

          The Ninth Circuit issue has been discussed and studied for almost thirty years. In 1973, the Commission on the Revision of the Federal Court Appellate System, popularly known as the Hruska Commission, was empowered to study and make recommendations relative to the structure of the federal appellate courts. It recommended the Fifth and Ninth Circuits be split.

          In its report, the Hruska Commission noted the Ninth Circuit’s “striking” size, its “serious difficulties with backlog and delay,” and its “apparently inconsistent decisions by different panels of the large court.” Senator Conrad Burns, Dividing the Ninth Circuit Court of Appeals: A Proposition Long Overdue, 57 Mont. L.R. 245 (1996), citing 62 F.R.D. 223, 224 (1973). Accordingly, the Hruska Commission “concluded that the creation of two new circuits is essential to afford immediate relief.” Id.

          In an effort to address the serious problems identified by the Hruska Commission, the Congress in 1978 authorized large circuit courts to create “administrative units” to address size-related problems. The Fifth Circuit attempted this approach, but it proved unworkable. Ultimately, in 1980, Congress split the Fifth Circuit and created the Eleventh Circuit Court of Appeals.

          Meanwhile, the Ninth Circuit Court of Appeals continued to grow. In 1997, Congress created the Commission on Structural Alternatives for the Federal Courts of Appeals, popularly known as the White Commission, to once again study these issues. The White Commission recognized the Ninth Circuit’s size-related problems, but it recommended that Congress create three regionally based administrative units within the structure of the Ninth Circuit.

          The White Commission recommendation was basically a return to the approach that failed in the Fifth Circuit, with some additional bells and whistles. If adopted, there would have been another step of appellate review for litigants in the Ninth Circuit. There also would have not been a true en banc hearing. A new step called the “circuit panel” would have been empowered to correct conflicting opinions from the administrative units. The circuit panel could have exercised its power without briefing from the parties or a hearing. In short, it would have been a radical, experimental approach, causing further delay, additional costs, and even more confusion for all litigants in the Ninth Circuit. I believe Congress was absolutely correct in rejecting the White Commission recommendation.

          It is my belief that the problems in the Ninth Circuit Court of Appeals are directly related to and caused by its sheer size. Consider the following:

1.  The Ninth Circuit’s population is two and one-half times greater than the other circuits. Over 51 million people reside in the Ninth Circuit. The other circuits average 20 million people. Moreover, the Census Bureau projects that all nine of the states located within the Ninth Circuit will fall into the top twenty growth states over the next 23 years. By 2025, the Ninth Circuit’s population will be greater than 75 million.

2.  The Ninth Circuit encompasses almost 40% of the United States. It covers more than 1.3 million square miles. The other circuits average about 200,000 square miles.

3.  The Ninth Circuit represents nine states and two territories. The other circuits average about three and one-half.

In an effort to manage this sprawling judicial entity, the Congress has authorized twenty-eight circuit judgeships in the Ninth Circuit. The other circuits average about twelve and one-half. None of the other circuits have more than seventeen authorized circuit judges.

          The total number of circuit judges is a critical point, which goes straight to the heart of a circuit’s ability to manage its caseload. The White Commission report advised Congress on this point as follows:

The maximum number of judges for an effective appellate court functioning as a single decisional unit is somewhere between eleven and seventeen.

White Commission Report at 29.

          The sheer size of the Ninth Circuit has caused a number of problems for the litigants who depend on the court to deliver quality justice. The recently released annual report of the federal courts, entitled Judicial Business of the United States Courts 2001, shows the Ninth Circuit in last place in the critical and objective measures of justice. Consider the following:

1.  The Ninth Circuit has a huge backlog of appeals awaiting action by the court. Almost one-quarter (9,160 out of 40,303) of the nation’s pending appeals are in the Ninth Circuit.

2.  Since 1997, pending appeals nationwide have increased by only 1%. In the Ninth Circuit, pending appeals have increased by 20% since 1997.

3.  More and more appeals are being filed in the Ninth Circuit, at a rate more than double the national average. Nationally, the number of appeals increased by 5% last year. In the Ninth Circuit, appeals increased by 13%. Moreover, the Ninth Circuit accounted for 43% of the raw increase in appeals filed nationally.

4.  Litigants in the Ninth Circuit have to wait much longer to receive final decisions from the court. In the Ninth Circuit, it takes the court an average of almost sixteen months to reach a final decision after an appeal is filed. The other circuits average slightly more than ten months. The Ninth Circuit is in last place, 53% slower than the other circuits in deciding appeals.

5.  The Ninth Circuit accounts for 60% of all appeals which have been pending in the nation’s circuit courts for more than twelve months.

6.  The Ninth Circuit also accounts for one-third of all pending requests for review by the Supreme Court. Last year, a total of 3,110 requests were made for Supreme Court review of circuit court decisions. Ninth Circuit decisions accounted for 953 of those requests. Of course, the chance of a Ninth Circuit decision being reviewed by the Supreme Court is miniscule, because the Supreme Court accepts a very small percentage of such requests.

The Ninth Circuit has earned a national reputation as a frequently reversed court. This reputation has factual support. Consider the following:

1.  From 1990 to 1996, the Supreme Court struck down 73% of the Ninth Circuit decisions it reviewed. The other circuits averaged 46%. Jeff Bleich, The Reversed Circuit: The Supreme Court versus the Ninth Circuit, 57 Oregon State Bar Bulletin 17 (May 1997).

2.  In 1997, the Supreme Court reversed 27 out of 28 Ninth Circuit decisions.

3.  Since 1998, the Supreme Court has granted review in 103 Ninth Circuit cases, affirming only 13. Moreover, the Supreme Court has unanimously reversed or vacated 26 Ninth Circuit decisions since 1998.

The Ninth Circuit’s number and rate of reversals is troubling. The number of unanimous reversals is perhaps even more troubling. Make no mistake about this – the reputation, which is founded in fact, has caused serious erosion in confidence for our federal circuit court.

          The New York Times, generally considered to be the newspaper of record for the country, began its recent story on the pledge of allegiance decision with the following line: “Over the last 20 years, the Court of Appeals for the Ninth Circuit has developed a reputation for being wrong more often than any other federal appeals court.” Adam Liptak, Court that Ruled on Pledge often runs Afoul of Justices, N.Y. Times, July 1, 2002.

          In response to a question about the high number of unanimous reversals by the Supreme Court, Yale University law professor Akhil Amar bluntly stated: “When you’re not picking up the votes of anyone on the Court, something is screwy.” Id.

          In response to three former Chief Judges of the Ninth Circuit who denied that the Ninth Circuit has a poor track record in the Supreme Court, Justice Scalia said: “There is no doubt that the Ninth Circuit has a singularly (and, I had thought, notoriously) poor record on appeal. That this is unknown to its chief judges may be yet another sign of an unmanageably oversized circuit.” Id.

          The solution for the Ninth Circuit’s problems begins with the Congress passing legislation to split the Ninth Circuit and create a new Twelfth Circuit Court of Appeals. H.R. 1203 would do just that, by putting the five northwestern states, Hawaii and the two Pacific territories in the Twelfth Circuit, and leaving California, Nevada, and Arizona in the Ninth Circuit. Although I am not adamant about the precise makeup of the new circuit, the framework of H.R. 1203 is certainly logical with respect to geography, economies, and the Colorado and Columbia River Basins.

          I am aware that creation of a new circuit would require adequate funding. Congress should certainly explore this issue carefully, because a new circuit must be adequately funded. However, I note that the existing court buildings located in the nine states would serve the new circuits. I also understand that large federal buildings in Portland and Seattle are, or will shortly be, available for use. In his law review article, Senator Conrad Burns referred to a letter sent to Senator Orrin Hatch from the Congressional Budget Office, indicating a new circuit would require additional operating costs in the first year of approximately $5 million and increased annual operating costs of $2-3 million. Senator Conrad Burns, Dividing the Ninth Circuit Court of Appeals: A Proposition Long Overdue, 57 Mont. L.R. 245, 255 (1996), citing Letter from the Congressional Budget Office, to Sen. Orrin Hatch, Senate Judiciary Comm. (Dec. 9, 1995).

          If the Ninth Circuit is not split, then I have also suggested that Idaho be moved into one of our nearby federal circuits. The Eighth Circuit is separated from Idaho by Montana. Idaho is contiguous to the Tenth Circuit (Wyoming and Utah). In fact, a small portion of Idaho (West Yellowstone) is already assigned to the jurisdiction of the Tenth Circuit Court of Appeals. I would strongly prefer a split and creation of a new circuit, but if politics stands in the way, then I have suggested this as an option for Idaho.

          I believe a split of the Ninth Circuit and creation of a new Twelfth Circuit should happen immediately. I also believe that if Congress declines to do so by passing H.R. 1203, we will continue to suffer from delays, backlogs, and a lack of confidence in our federal circuit. Splitting the Ninth Circuit is inevitable. We can delay the inevitable, but we cannot stop the West from growing. I urge Congress to act now and pass H.R. 1203.

Thank you for your time and consideration of this issue – the most important law and justice issue in the West.