TESTIMONY OF ATTORNEY GENERAL CHRISTINE O. GREGOIRE
TO THE COMMISSION ON STRUCTURAL ALTERNATIVES
FOR THE FEDERAL COURTS OF APPEALS

Presented by: Kathleen D. Mix, Chief Deputy Attorney General

U. S. Courthouse, 1010 Fifth Avenue, Room 815, Seattle

10:05 a.m.

May 27, 1998

The Commission has asked for views on several questions related to the federal appellate courts including whether decisions are reasonably timely; consistent among litigants appearing before the courts; nationally uniform in their interpretation of federal law; and reached through processes that afford adequate, deliberative attention of judges.

The Attorney General's Office of Washington wishes to address several of these questions, specifically, as they relate to cases before the Ninth Circuit Court of Appeals.

First, in the experience of this office, case processing and decisions out of the Ninth Circuit are not timely, particularly in certain types of cases.

• In one case (Lord v. Wood, No. 97-99025), it took over six months for a briefing schedule to be set after a notice of appeal. This is not atypical.
• In other cases, significant delays have occurred between briefing and argument.
• Although decisions appear to be issued more timely, the case of Campbell v. Wood, 18 F.3d 662 (9th Cir.1994) remains a visible and troubling example of delay, where it took the court five years to issue a decision in this death penalty case. The Ninth Circuit took a total of nine years to resolve the various Campbell habeas cases.
• Capital cases appear to suffer more from delays in processing and issuance of decisions than any other type of case before the Ninth Circuit. Given the growing number of prisoners under sentence of death, particularly in California, this problem is of great concern to states litigating these cases before the Ninth Circuit.
• The number of vacancies on the Ninth Circuit has undoubtedly exacerbated these case processing problems. However, the delays cannot be solely attributable to judicial vacancies--our concern has spanned a longer period of time.

As lawyers and judges, it is important that we give the public confidence in our judicial system. Decisions from our courts must be perceived as reasoned and thoughtful, regardless of the outcome. But equally important, the courts must act in timely and efficient ways that demonstrate to the public that justice is forthcoming. The delays, unwieldy size, and large workload of the Ninth Circuit have undermined public confidence in our judicial system and made it more difficult for lawyers to do their jobs on behalf of the clients--public and private.

The creation of a Northwest circuit would mitigate the problems of the unwieldy size of the Ninth Circuit. The Ninth Circuit has by far the most judges, the largest area served, and the most cases of any circuit court. Our states are directly affected by the resulting infrequency of en banc consideration, and potential for drawing panels with little familiarity with the laws and practices of our states. Judges serving a Northwest circuit would be more aware of issues pending before other panels, and more willing to hear matters important to our states en banc. Perhaps most importantly, the more manageable volume of cases will allow our states' citizens to have their cases heard and decided in a reasonable period of time.

The Ninth Circuit's caseload is steadily increasing with the greatest increase in cases coming from the Central District in California. In 1989, 22 percent of all Ninth Circuit cases were filed in the Central District of California; today, those cases constitute 27 percent. This trend will only aggravate our problems in the future if the Ninth Circuit is not divided.

I thank you for your time and consideration of issues important to the people of the State of Washington.