RESOLUTION PRESENTED BY JUDICIAL ADVISORY COMMITTEE,
EASTERN DISTRICT OF CALIFORNIA, IN RESPONSE TO
OCTOBER 1998 TENTATIVE DRAFT REPORT,
COMMISSION ON STRUCTURAL ALTERNATIVES
FOR THE FEDERAL COURTS OF APPEALS
WHEREAS, the United States Court of Appeals for the Ninth Circuit has an authorized complement, at this time, of twenty-eight (28) judges;
AND WHEREAS, there are thirteen (13) federal judicial districts in the nine (9) states located within the area encompassed by the Ninth Circuit, plus two (2) federal judicial districts in territories (Guam and Northern Marianas) located within that area;
AND WHEREAS, this Judicial Advisory Committee has been established by the United States District Court, Eastern District of California, pursuant to its General Order No. 348, for the purpose of continuing, on an ongoing basis, the functions and activities of the Civil Justice Reform Act advisory group which was established in the Eastern District of California pursuant to 28 U.S.C. § 478, and which terminated as of December 1, 1997, pursuant to Section 103(b)(2)(A) of Public Law 101-650, as amended;
AND WHEREAS, pursuant to Section 307 of Public Law 105-119, Section 44(c) of Title 28 of the United States Code provides that "[i]n each circuit (other than the Federal judicial circuit) there shall be at least one circuit judge in regular active service appointed from the residents of each state in that circuit;"
AND WHEREAS, for many of the same reasons that resulted in the enactment of Section 307 of P.L. 105-119, it is desirable that, to the extent reasonably possible, a Court of Appeals judge should be resident in and immediately available to the district judges and to the practitioners within each federal judicial district;
AND WHEREAS, communications concerning issues of significance and immediacy between the Court of Appeals and district courts within the jurisdiction of the Ninth Circuit, both administrative and judicial in nature, would be assisted and given perspective by the existence of a resident Court of Appeals judge within each district and the attendance of that judge at district conferences, district judges' meetings and other local professional gatherings, both for the purpose of communicating views from the district to the circuit and for the purpose of communicating views from the circuit to the district;
AND WHEREAS, the handling of emergency matters such as writs, petitions, emergency stay requests, and the like, particularly in those districts in which the Court of Appeals does not sit and does not maintain a Clerk's Office, would be significantly ameliorated by the existence of a resident Court of Appeals judge within each district;
AND WHEREAS, the Commission on Structural Alternatives for the Federal Courts of Appeals ("Commission") has issued its Tentative Draft Report, dated October 1998, and has invited comment thereon;
AND WHEREAS, the Commission has proposed that the Ninth Circuit be organized into three regionally based adjudicative divisions, each to function as a semi-autonomous decisional unit, with a majority of judges serving on each division to be residents of the districts over which that division has jurisdiction, but with each division also to include some judges not residing within the division;
AND WHEREAS, the Commission has also proposed that a similar type of circuit organization be mandated for other circuits at such time as those other circuits reach authorized complements of seventeen (17) circuit judges in regular active status;
NOW THEREFORE, BE IT HEREBY RESOLVED by this Judicial Advisory Committee that the following comments be submitted to the Commission in response to the Tentative Draft Report:
1. That the Commission should augment its report by recommending that each adjudicative division within the Ninth Circuit be required to have at least one judge in active duty status resident within each of the federal judicial districts in each state located in that adjudicative division, before any non-resident judge from the Ninth Circuit is assigned to service in that adjudicative division;
2. That to implement the foregoing recommendation, the proposed Statute for Divisional Organization of the Court of Appeals for the Ninth Circuit, Appendix C of the Commission's Tentative Draft Report, should be amended by adding a second proviso, at the end of the second sentence of Section 2.b. thereof, reading as follows:
"provided, further, that no judge who is not a resident of a particular division shall be assigned to that division unless at least one active status judge from each federal judicial district in each state located in that division, who is a resident of that district, has previously been assigned to that division."
and by striking the word "Such" at the beginning of the third sentence of Section 2.b. and replacing it with the word "Nonresident."
3. That by making the foregoing comment this Committee intends neither to approve nor to disapprove the concept of splitting California between adjudicative divisions; and
4. That the Commission should augment its Tentative Draft Report by recommending that the last sentence of 28 U.S.C. §44(c) be amended to read as follows:
"In each circuit (other than the Federal judicial circuit) consisting of more than seventeen (17) circuit judges in regular active status, there shall be at least one circuit judge in regular active service appointed from the residents of, and residing in, each federal judicial district in each state within that circuit."
Passed and recorded this day of October, 1998.
JUDICIAL ADVISORY COMMITTEE
EASTERN DISTRICT OF CALIFORNIA
By Norman C. Hile, Chairman