Dear Justice White and Members of the Commission:

The Judicial Council of the Ninth Circuit met on October 26, 1998. The principal item on the agenda was a discussion of the Commission Draft Report. The Judicial Council is composed of four district judges, four circuit judges, and the chief judge, together with a representative from the bankruptcy judges, the magistrate judges, and the senior judges, who are non-voting members but are full participants in discussions.

The Judicial Council earlier this year strongly endorsed maintaining the circuit completely in tact, because it is functioning well as it is in serving the western United States. This would still be the preference of the Judicial Council. However, the discussion brought out the fact that there was considerable congressional pressure to divide the Ninth Circuit, and that the proposals of the Commission presented some alternatives that we should carefully consider and work with constructively.

The Analysis of the Chief Judge of the Ninth Circuit that had been furnished to the Judicial Council was discussed at the meeting and is attached hereto. A motion was passed, with one negative vote,^/ to respond to the Commission basically as suggested in the Analysis, and to emphasize that the following important modifications should be made to the Commission=s proposals for the Ninth Circuit.

1. That decisions within any of the proposed Divisions have stare decisis effect throughout the Ninth Circuit.
2. That a circuit-wide en banc court be retained with jurisdiction to review all cases, not solely conflicts between Divisions, and that it would be desirable for the circuit to increase the number of judges on the en banc court.
3. That the current composition of the Ninth Circuit Judicial Council be retained. The district judges on the Judicial Council stressed the importance of having the elected President of the Ninth Circuit District Judges Association on the Judicial Council, as well as the district judge elected to represent the district judges at the United States Judicial Conference. Thus, the proposed statutorily mandated composition of the Ninth Circuit Judicial Council should be eliminated. It was noted that such a mandate was not proposed for any other circuit.
4. That the Bankruptcy Appellate Panels (ABAP@) should operate circuit-wide because it would be infeasible to have Divisional BAPs.

1. That the District of Arizona be made a part of the Middle Division, rather than the Southern Division, in order to better equalize the caseload and the number of circuit judges.
2. That concern be expressed about the proposed detailed divisional structure with a sunset provision because it would appear to be a date for division of the circuit if the proposed divisional structure does not work well. A better approach is to allow the circuit more flexibility to accomplish the objectives identified by the Commission, with evolving changes, rather than a more rigid experiment, the failure of which would lead to a circuit split.

The Ninth Circuit Judicial Council expresses its gratitude for the hard work and careful study put in by the members of the Commission but sincerely hopes that the Commission will adopt the suggested modifications to their proposal for the Ninth Circuit.

Yours sincerely,

PROCTER HUG, JR.

Chief Judge

PH:ms

Enclosure