Dear Justice White and Members of the Commission:

On October 22, 1998, the Ninth Circuit Court of Appeals met for several hours in San Francisco at a special court meeting for the specific purpose of discussing the Draft Report and developing a response. Twenty-two of our active and senior judges were present in person and four judges participated by telephone.

Prior to the Court Meeting, as Chief Judge, I submitted my written Analysis of the Commission's Draft Report, as a frame of reference for the court discussion, but emphasized that the meeting was intended to encourage a full and free discussion of everyone's views of the Draft Report.

After a thorough discussion, in which all of the judges were called upon to state their views, a motion was made to authorize the Chief Judge to respond to the Commission's Draft Report as outlined in his Analysis. That motion was amended to advise the Commission that if the proposed adjudicative Divisions were adopted without the changes recommended, the Southern and Central Divisions, which divide California, should be merged. The idea behind the amendment was that if the divisional operation were enacted as proposed it would have very serious, disruptive consequences for California and that having only the two divisions would be much less disruptive to the Ninth Circuit. The motion, as amended, was passed by a substantial majority of the Court.

In order to accurately represent the views of the majority of the Court, I am attaching the Analysis document. I will summarize it here.

Our Court recognizes and appreciates the difficult task undertaken by the Commission and the severe time constraints placed upon it. We are pleased that the Commission recommends that the Ninth Circuit not be split and strongly advises, as undebatable, that no circuit should be realigned because of particular judicial decisions or particular judges. The Commission also made some significant recommendations that could reduce the caseload burden on the courts of appeals nationally.

We believe it is particularly important, in discussing the Ninth Circuit, that the Commission stated:

A major problem that we have with the Commission's recommendation, however, is that the proposed operation of the divisional structure frustrates this goal.

I believe it is fair and accurate to say that a great majority of the judges of our Court are convinced that the case has not been made for any type of division of the Ninth Circuit and that the public, the litigants and the federal court system of the western United States are best served by having the Ninth Circuit continuing to operate as a fully united circuit. However, we recognize that it is within the power of Congress to require a change in the structure of our circuit and, thus, we wish to respond constructively to the recommendations of the Commission.

Although the Commission does not recommend a split of the Ninth Circuit for administrative purposes, the draft recommendation goes very far in splitting the more-vital adjudicative functions to be performed within the circuit. It creates three virtually autonomous divisions, each with its own independent en banc process, and with neither the panel decisions nor the divisional en banc decisions being binding elsewhere in the Ninth Circuit. The problems we see are that this not only frustrates the development of circuit law, but adds procedures that will create additional expense and delay for the litigants.

The particular objections are detailed in the Analysis, but may be summarized as follows:

1. The decisions of panels and the divisional en banc courts are not binding throughout the Ninth Circuit. There would be no uniform circuit law.
2. A decision of an en banc court of a Division that does not create a conflict with another division does not receive any further review in the circuit. It is reviewable only by certiorari in the United States Supreme Court. This would be a significant obstacle to accomplishing the objective of having the Ninth Circuit "interpret and apply the federal law in the western United States." It would create particularly troublesome problems in California, and for those persons and entities dependent upon the interpretation of federal law in California.
3. The proposed "Circuit Division," an additional court of seven judges with jurisdiction to resolve only conflicts between divisions of the circuit, creates an additional tier of review before finality, with the attendant delay and expense for litigants. A circuit-wide en banc process, available to review important decisions as well as conflicts, is essential to having the Ninth Circuit "interpret and apply the federal law in the western United States." Our current eleven-judge limited en banc court, which could be expanded to thirteen or fifteen judges, accomplishes this function, and is much more representative of the full court. It also avoids the extra tier of review.

1. The assignment of out-of-Division judges to Divisions for a year or more would create unnecessary problems and prevent judges so assigned from participating in the decisional process in cases originating in their regional area during that period.

1. The Commission recommendation imposes a detailed divisional structure on the Ninth Circuit that is not imposed on the other circuits of the nation. If the Ninth Circuit is to be an experimental model for large circuits, it should be allowed the flexibility to experiment so as to accomplish the objectives enumerated by the Commission, without the disadvantages of the currently proposed rigid statutory structure of virtually autonomous Divisions.

As noted in the Analysis, the principal objectives of the proposed divisional operation could be accomplished without the serious problems we enumerate by modifying the proposal as follows:

1. Decisions of panels would be binding throughout the circuit unless overruled by an en banc court.

1. Eliminate the Division en banc courts. They would impose an extra tier of review and inevitably lead to greater intra-circuit conflicts.

2. The existing circuit-wide limited en banc court should be retained, and available to rehear any case, not just cases involving conflicts, within the circuit. This en banc court could be expanded to thirteen or fifteen judges representative of the Division as determined by the Circuit Court.

1. The objective of having cases arising within a Division decided by a majority of the judges within the Division, but with out-of-Division judges involved, could best be accomplished by having the panels composed of a majority of resident judges with out-of-Division judges assigned to the panels.

We earnestly hope that the Commission will give these recommendations serious consideration.

Yours sincerely,

PROCTER HUG, JR.

Chief Judge

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Enclosures