STATEMENT TO THE COMMISSION ON STRUCTURAL ALTERNATIVES
FOR THE FEDERAL COURTS OF APPEALS

Howard M. Goodfriend
Attorney at Law
Edwards, Sieh, Smith & Goodfriend
7170 Columbia Center
701 Fifth Avenue
Seattle, WA 98104
(206) 624-0974

I appreciate the opportunity to comment on the work of the Commission and to present my views concerning the structure of United States Court of Appeals for the Ninth Circuit.

I am an attorney admitted to practice in the state of Washington and the Ninth Circuit Court of Appeals since 1984. I work in a small firm whose practice is primarily appellate. I and other members of my firm are active in professional associations and committees that focus on appellate courts and we are dedicated to enhancing the process and quality of appellate decision making. I have appeared in over a dozen cases in the Ninth Circuit and my firm has appeared and consulted on appeals in the Ninth Circuit for the past thirty years. My clients have included insurance companies, injured railroad and maritime workers, private individuals and corporations. I have appeared in both criminal and civil cases. The diversity of my appellate practice gives me a perspective that is relatively free of the bias of practitioners who specialize in one substantive area of the law or represent one type of client.

I do not favor any of the current proposals to split the Ninth Circuit into two smaller circuit Courts of Appeals. The problems in the delivery of justice at the appellate level are not ones of structure, but of inadequate resources devoted to the judiciary. Further, the current focus on the size of a court or its docket, and on statistical analyses of the amount of time it takes for a court to resolve cases fails to provide a meaningful guide to the quality of appellate decision making. Finally, dividing the Ninth Circuit into two smaller circuits would not address the most serious deficiencies in the administration of justice at the appellate level and would create more problems than it would solve.

There can be little doubt that the federal courts of appeals face enormous challenges in the coming years. Pervasive federal regulation of subjects traditionally reserved for the states, increased population growth, and the recent unprecedented economic growth of the nation as a whole, and the Western states in particular, all have contributed to the burgeoning federal court dockets and the workload of appellate court judges. These problems are not limited to the Western states served by the Ninth Circuit, but attention has focussed on the Ninth Circuit more than others because of its sheer size, both in terms of caseload and the huge geographic area that it serves. The Commission has heard extensive testimony regarding the current caseload of the Ninth Circuit and projections of how that caseload will increase over the coming years.

I do not intend to repeat the statistics concerning caseload or the associated statistics regarding the delay from the filing of a notice of appeal until decision. Instead, I want to focus my comments and the Commission's energies on the quality of the administration of justice in the Ninth Circuit. This is a standard that does not lend itself to easy quantification. However, based on my discussions with other appellate counsel as well as clients, I believe that the appearance of fairness and due consideration in all cases must be the paramount concern in addressing the public's perception of the quality of the administration of justice in the appellate courts.

II. Reform Should Focus On Improving The Public's Perception Of the Court By Eliminating Delay And Enhancing The Legitimacy Of The Court 's Decision-Making Process.

The Ninth Circuit does an excellent job of managing and deciding the cases that are brought before it. This is especially true given the challenges that it has faced over the past decade. These include recovering from a major earthquake, moving its headquarters, and watching its caseload grow while the number of active judges on the court steadily declined. The court has succeeded in actually reducing its backlog and shortening the time from oral argument to decision though a number of very effective innovations.⁽¹⁾

I believe that the most severe problem with appellate courts and the Ninth Circuit in particular is delay. Delay undermines the legitimacy of the court and adversely affects the public's perception concerning quality of justice in the Ninth Circuit. In particular, appellate courts should strive to set cases for consideration within three months of the submission of the briefs. I believe that in the Ninth Circuit, the existing delay between the filing of a notice of appeal and consideration of the case is a simple matter of too few judges deciding too many cases. Had the Circuit been operating with all twenty-eight active judges, litigants would not have to wait more than six months from the conclusion of briefing to the setting of their case for consideration.

On the other hand, I do not believe that delay between oral argument and decision is a serious problem in the Ninth Circuit. Most of my clients have come to accept the fact that some delay is inherent in the appellate process. I believe that most litigants can accept delay if they otherwise believe that the court is taking seriously their arguments and spending its time deliberating toward the achievement of a just result. Most attorneys would probably agree that they would rather have a well reasoned and thoughtful opinion issued after six months, than a perfunctory memorandum decision issued after six weeks. Thus, I hope that the Commission focuses its efforts on advocating that appellate courts, including the Ninth Circuit, receive sufficient funds to hire more judges and staff to minimize the delay between the submission of briefs and the consideration of the case and to allow the court to issue more thorough and reasoned appellate decisions.

Providing additional judges will also alleviate another common practice that currently undermines the court's legitimacy - the widespread use of district court and visiting judges to fill panels. Most appellate attorneys do not believe that litigants are well served by having visiting judges from other circuits sit on panels to consider cases. This practice, although now quite common in the Ninth Circuit⁽²⁾ and elsewhere, creates the impression that the panel will not consist of three disinterested decision makers, each with the same interest in resolving issues of law in a manner that will settle important questions for district court judges, attorneys and parties in future cases within the circuit. Professor Resnick has suggested that this Commission study the question of whether this practice should be formalized, and whether the practice should be limited to visiting judges from within the circuit.⁽³⁾ I agree that absent sufficient resources to fully staff the needs of appellate courts, the use of visiting judges should become the subject of more established and predictable rules so that the parties and their counsel accept visiting judges as "real" appellate judges with the same interest in the case as the other members of the panel.

Another victim of the burgeoning caseload in the Ninth Circuit that undermines the legitimacy of the court is the right to appear and give oral argument. To the parties and their counsel, oral argument is perhaps the single most important event in the appellate process. It is the only occasion upon which the public can participate in the decision making process and view firsthand the work and the concerns of the judges. Without the opportunity to present argument, litigants view the promise of an appeal as a matter of right as a hollow one and the resulting decision of the Court does not carry with it the legitimacy it would otherwise command.

I believe that given its inadequate resources, the Ninth Circuit has done an outstanding job of carefully screening cases for oral argument. For the most part, the court has granted oral argument in cases that merit it and has dispensed with oral argument in those cases that do not present novel or close questions of law. With additional active judges, however, the court could allow argument in a greater number of cases and enhance the public's perception that their grievances are being heard and their arguments are being considered.

Thus, my principal criticisms of the decision making process in the appellate courts and the Ninth Circuit in particular - delay and the lack of legitimacy in the decision making process  - are primarily a function of the court's lack of adequate resources. Simply put, if the Court had more judges and if Congress and the President quickly filled existing vacancies, many of these problems would disappear. When the caseload increases and the number of active judges declines, the quality of justice will undoubtedly suffer. Increased funding of the judiciary to create new appellate judgeships is the simplest and most effective method of delivering the highest quality of justice to the citizenry.

III. Dividing The Ninth Circuit Would Not Enhance, But Would Undermine The Legitimacy Of Its Decision Making Process.

I do not believe that current proposals to split the Ninth Circuit will address any of the problems identified in the previous section and will, in fact, detract from the court's legitimacy in several important respects.

The proposal to limit the size of a circuit to a fixed number of cases or a fixed number of judges is arbitrary. Whatever limits are established will quickly fall by the wayside as caseloads continue to mount. The Hruska Commission recommendation that each circuit be limited to 15 active judges, though perhaps attainable in 1973, is unrealistic given current caseloads. Moreover, as Judge Wallace has pointed out, the arguments for such arbitrary limits on the size of a circuit are based on an idealistic and nostalgic preference for simpler days.⁽⁴⁾

The arguments in favor of restricting the number of judges per circuit do not withstand scrutiny. The criticism that a large bench results in greater internal inconsistency in its decision-making has been effectively rebutted by the empirical study of Arthur Hellman.⁽⁵⁾ The Ninth Circuit has effectively employed existing technology to keep track of issues and identify related pending and recent cases despite its burgeoning caseload. In my experience, it does a more effective job of issue tracking than much smaller state appellate courts.

The other argument frequently advanced in favor of a smaller bench is the need of collegiality. But collegiality is a function of attitude rather than size. There are many much smaller courts where collegiality is non-existent and many large courts that have institutionalized well attended colloquia, retreats and social activities. Moreover, a judiciary that has dramatically different political views, legal philosophies and life experiences provides a better reflection of the public it serves than does a homogenous court, whose members happen to get along. The likelihood that one panel member will see things much differently than another increases as the number of sitting judges increases. It is precisely this diversity of viewpoints that provides the intellectual give and take that hones the appellate decision making process.

Thus, I do not believe the citizens of Washington state would be well served by the creation of a "Northwest" circuit that contains only Alaska, Oregon Washington, Idaho, and Montana. These five northwest states contribute only a small minority of the cases currently heard by the Ninth Circuit, and as a result, such a circuit would probably receive only five or six judges to hear those cases. Any other proposal to equally divide the Ninth Circuit requires the division of California into two circuits, since that state alone contributes to 65% of the court's caseload. This proposal leads to the possibility that California citizens would be subjected to inconsistent interpretations of state and federal law affecting the state, a possibility that would require some type of "super-circuit" resolution mechanism.⁽⁶⁾

In the long run, the current proposal to split the Ninth Circuit would only set a precedent for the creation of additional circuits as caseloads continue to grow. The resulting balkanization of the federal Courts of Appeals would increase the pressures on the Supreme Court to resolve inconsistent adjudications and make it more difficult for practitioners in an increasingly mobile and national bar to familiarize themselves with the varying procedural rules that these circuits will inevitably adopt.⁽⁷⁾

IV. Conclusion.

I believe that the Ninth Circuit functions well, especially given the fact that it has not been working at 100% capacity for many years. The main challenges it faces - reducing delay and enhancing the public perception that cases are thoroughly and properly considered - are more a function of dedicating adequate resources to the court rather than restructuring the existing court. The current proposals to divide the Ninth Circuit into two circuits will likely undermine the court's legitimacy in the eyes of citizens of the northwest states by creating a court that is even less reflective of the diversities of our region.

1. See Statistics Division, Administrative Office of the Courts, Judicial Business of the United States Courts: 1997 Report of the Director, Table B-4 (1997).

2. In 1997, the Ninth Circuit made sixty assignments of visiting judges alone, not counting senior judges. Report to the Circuit Council, on file with the Office of the Circuit Executive.

3. Statement submitted by Judith Resnick, New York City hearing April 24, 1998.

4. J. Clifford Wallace, Developing the Mission of the Federal Courts -- A Method to Determine the Size of the Federal Judiciary, 27 Conn. L. Rev. 851, 856-57 (1995).

5. Arthur D. Hellman, Restructuring Justice 83-86 (Cornell Univ. Press 1990).

6. One such proposal is suggested by Sanford Svetcov in his testimony before the Commission.

7. See Professor Gregory C. Sisk's article, The Balkanization of Appellate Justice: The Proliferation of Local Rules in the Federal Circuits, 68 U. Colo. L. Rev. 1 (1997) and The Report and Recommendations on the Lawyer Advisory Committees to the U.S. Courts of Appeals, issued in February, 1997 by the American Academy of Appellate Lawyers.