BEFORE THE COMMISSION ON STRUCTURAL ALTERNATIVES FOR THE FEDERAL COURTS OF APPEALS

Submitted by:

Justice (ret.) John C. Sheehy
825 North Rodney Street
Helena, Montana 59601
(406) 443-1398

MAY 18, 1998

My name is John C. Sheehy, residing in Helena, Montana. I am a retired Justice of the Montana Supreme Court. Before my 13 years on the state Supreme Court, I spent 30 years in Billings, Montana, as a trial lawyer. I enjoyed an extensive appellate practice, before both our state Supreme Court and the Ninth Circuit Court of Appeals. On three occasions I represented our state bar as a lawyer-participant at a Judicial Conference of the Court of Appeals for the Ninth Circuit.

These capacities provided me with great opportunities to observe and learn of the interfacing between the bench and the bar at all levels, and between the Montana state courts and the Montana U.S. District Court and the Court of Appeals for the Ninth Circuit.

I can vouch that there is mutual cordial respect between the Montana Supreme Court, the federal district Court and the Ninth Circuit Court of Appeals. Thus the federal district court judges sitting in Montana have opposed any splitting of the Ninth Circuit. The State Bar of Montana, the organization to which all lawyers practicing in Montana must belong, resolved in writing to oppose the recent Congressional attempts to split the Circuit. We are satisfied that the Ninth Circuit Court is doing its job as well as can be, hampered as it is by the lack of a full complement of its allotted judges.

Congress has mandated this Commission to report possible alternatives to the present structures of all the Courts of Appeal, particularly of the Ninth Circuit. It is a daunting task, for there may be as many alternatives as there are persons to suggest them. However, one structural plan that the Commission must examine and report on is no alternative at all: preserving the present structure of the Ninth Circuit.

Montana jurisprudence owes a legal debt of gratitude to the State of California. Montana, both as a Territory and when it entered statehood, adopted its codes largely from then-existing California code provisions. In consequence, through the years when our state supreme court could find no precedents in its own decisions bearing on legal questions, it looked often to the decisions of the state supreme court of California for precedential guidance. We have little patience therefore with the political argument that California judges are too "liberal" or that the Ninth Circuit is dominated by "liberal California Judges". We have a good deal of respect for the quality of the appellate decisions of the Ninth Circuit.

But the Ninth Circuit is far more than a California court. It draws in its decisions from a tremendous wealth of judicial sources because of its large territory and the number of states contributing to its jurisprudential body.

The pounding vigor of its component states, their economic, racial and ethnic complexities, the geography that ranges from ocean islands through seaboard, mountains, glaciers, plains and deserts, all give rise to major issues that put the Ninth Circuit on the leading edge of nearly every vital legal problem that the American judiciary faces today.

Necessarily therefore the decisions of the Ninth Circuit spring from a broad spectrum and deserve precedential respect, a respect that would be diminished substantially if the Ninth Circuit were split into lesser dominions.

There is little public comment, particularly in the states covered by the Ninth Circuit, about any perceived need to split or divide up the Ninth. Especially in law review publications emanating out of law schools in that circuit, one finds scarce mention of any pending congressional proposals to split the circuit. A notable exception is the Montana Law Review, (Vol. 57(2) 1996) in which a symposium on the proposal to split the Ninth Circuit reported the principal arguments pro and con.

Participants in the symposium included Senator Conrad Burns, (R. Mont), one of the sponsors of the Senate bill seeking to split the Ninth Circuit. Another was Hon. Diarmuid F. O'Scannlain, Judge, U.S. Court of Appeals for the Ninth Circuit, who professes to prefer an eventual split of the Circuit but opposed the Burns bill, S. 956. A third writer was Professor Arthur D. Hellman, the former Deputy Executive Director of the Hruska Commission, who drafted the Hruska Report recommending a split of the Ninth Circuit but who now thinks differently and opposes a split for reasons he fully sets out. The fourth participant was Hon. Proctor Hug, Jr., Chief Judge, U.S. Court of Appeals for the Ninth Circuit.

Thus the symposium fully covered the subject from both sides through persons of high interest or expertise prior to the establishment of this Commission, and, I submit, the Law Review article is mandatory reading for the members of this Commission.

It seems to me that the broad-ranging discussions of Chief Judge Hug and Professor Hellman of the reasons why the Ninth Circuit should not be divided have the far better force, and that the same arguments pertain with as great force today, two years after the symposium.

Here are some of the more important arguments why the present configuration of the Ninth Circuit should be continued:

• By and large, the present Ninth has the support of the judges and lawyers who work and practice in it.
  
  
• The arguments against splitting are strong, and splitting would create a sea of uncertainty about improvement.
  
  
• No workable plan splitting the Ninth Circuit has been nor can be conjured up. (For example, see proposed splits in Tables A through E, attached to Judge O'Scannlain's article, Mon. Law Review, Vol. 57 (2) pp. 320-322, (1996), which either have already failed Congress or would split California.)
  
  
• At present and in the predictable future, any splitting of the Ninth Circuit which involves splitting California or making California a single-state Circuit has no political chance of success in the Congress.
  
  

It might be argued that this Commission, in making its recommendations, should ignore any thought of political success, and act without regard to whether its proposals may be adopted. Yet there is no glory, much less benefit, in passing along recommendations which are likely not to be adopted by the Congress because of political considerations. That was the fate of the Hruska recommendation regarding splitting the Ninth Circuit.

Rather if the Commission determines that the Ninth Circuit compares favorably with other circuits, and that its innovative actions to improve the administration of justice in the Circuit are working and show a resolve to advance with the times, that too should be a part of this Commission's report.

The suggestion submitted to this Commission (April 24, 1998) regarding the Ninth Circuit by Hon. Joseph F. Weis, Jr., U.S. Circuit Judge, Court of Appeals for the Third Circuit, requires comment.

There are some who recognize the impracticality or impossibility of actually splitting the Ninth Circuit geographically. To get around these obstacles, they suggest bringing in the shears through the back door. Judge Weis' suggestion is one of those. His plan would divide the Ninth Circuit in substance, while retaining the cosmetic appearance of the present Ninth Circuit.

Under the Weis "unified" Court of Appeals, three "divisions" of the Circuit, of no more than nine active judges each, would have appellate jurisdiction of cases arising from territories within the Circuit designated to each division. Each division would have its own clerk and en banc procedure. Thus territorial division of the Circuit would be accomplished.

Future appointments of judges would be to a division of the Circuit, not to the whole Circuit.

The chief judge would appoint a "Central Division" consisting of judges that "would resolve divisional conflicts and review asserted aberrant decisions of the various divisions". There would be a circuit-wide en banc.

Thus though the judges would be equal, some would be more equal than others.

I trust the Commission will see through this plan as one that would effectively split the Ninth Circuit not once but three times. Its adoption would be an open invitation to regional rather than national law and a bow of recognition to those who used to argue (they have given it up lately) for a Court more amenable to their perceived political interests of the Northwest.

Other persons appearing before this Commission with particular expertise in their fields have expounded at length on the reasons why the Ninth Circuit should not be divided. There appears to be overwhelming opposition to any recommendation that would divide the present Ninth Circuit. I side with them and earnestly ask the Commission to so report, and to cite the innovations that have been adopted by the Court of Appeals for the Ninth Circuit that evince a thorough appreciation of the growth occurring here, and efficient handling of that growth for the future.

Respectfully submitted,

s/ John C. Sheehy
John C. Sheehy