by

Margaret Z. Johns
University of California, Davis
School of Law

November 6, 1998

Over the years, I have been privileged to serve the Ninth Circuit in several capacities including Chair of the Ninth Circuit District Rules Review Committee (1994-1997), Lawyer Representative to the Ninth Circuit Judicial Conference (1992-1994), and Coordinator of the Ninth Circuit Pro Bono Project for the Eastern District of California (1994-present). I also serve as Director of the King Hall Civil Rights Clinic which frequently represents indigent plaintiffs in the Ninth Circuit. From this experience, I offer some comments on the Commission’s Draft Report.

First, I applaud the Report’s conclusions that the Ninth Circuit should not be split, that circuit realignment is not indicated, that no circuit should be realigned because of particular decisions or particular judges, and that "[h]aving a single court interpret and apply federal law in the western United States. . . is a strength of the circuit that should be maintained."

Second, from my experience in the Ninth Circuit, I entirely agree with the Report’s conclusion that "the administration of the Ninth Circuit is, at least, on a par with that of other circuits, and innovative in many respects." Specifically, the Circuit has developed many innovative approaches to administrative challenges including limited en banc review, efficient use of support staff, issue-tracking procedures, and implementation of a circuit-wide pro bono program. See Carl Tobias, Suggestions for Studying the Federal Appellate System, 49 Fla. L. Rev. 189 (1997); John B. Oakley, The Screening of Appeals: The Ninth’s Circuit’s Experience in the Eighties and Innovations for the Nineties, 1991 Brigham Young Univ. L. Rev. 859 (1991); and Arthur D. Hellman, Central Staff in Appellate Courts: The Experience of the Ninth Circuit, 68 Cal. L. Rev. 937 (1980). The enormous practical advantages of this administrative structure, as well as its value as a laboratory for innovation, support the Report’s conclusion that the Ninth Circuit should continue to function in tact for administrative purposes.

Third, in light of the consensus among appellate judges throughout the country that a court of appeals functions more effectively with fewer judges than are presently authorized for the Ninth Circuit, I believe that experimentation with smaller decisional units is appropriate. The Report’s proposal to create three divisions would serve the goals of establishing smaller decisional units and fostering collegiality. The plan would also serve a companion objective of having a greater territorial connection between the judges and the cases they decide. My concern with the Report’s proposal in this regard is that it mandates a specific and detailed approach for a seven-year period. In my view, especially in light of the Ninth Circuit’s historical willingness to innovate, the proposed experiment in smaller decisional units should permit more flexibility in its implementation as well as interim modifications as the experiment progresses.

Fourth, I am greatly concerned that the goal of achieving uniform federal law in the Ninth Circuit will be frustrated by the abandonment of the doctrine of stare decisis. The Report recommends that the three adjudicative divisions function as semi-autonomous decisional units. I have great difficulty understanding how this plan will increase the consistency of the law; rather, it seems to invite increased conflicts within the Ninth Circuit. To be sure, this plan may promote consistency within each division. But if the objective is to maintain circuit-wide consistency, then this proposal appears counter-productive. In short, my fear is that the plan will generate conflicts and inconsistencies, blessed as permissible under the banner of divisional autonomy.

My concern is based in part on practical realities. As a lawyer practicing in the Ninth Circuit

of my obligation to cite Ninth Circuit decisions to the district courts and the court of appeal. Given the courts’ page limits, I generally do not cite decisions from other circuits unless there is no Ninth Circuit authority on point. And the courts of the Ninth Circuit adhere to its precedents without necessarily considering or analyzing decisional law from other circuits. Within the proposed semi-autonomous divisions, I assume my obligation would be to research and cite precedents primarily from the relevant division. Because they would function semi-autonomously and because the workload would continue to tax judicial resources, the divisions would have no incentive to spend the resources to track and to harmonize decisions of other divisions.

Indeed, the Report anticipates that the judges "will find it easier to monitor the law in their respective divisions." But with the litigants citing only divisional precedent and with each division monitoring only its own cases, the divisions will develop increasingly divergent lines of authority without necessarily even realizing the intra-circuit conflicts they are creating. This approach is likely to result in substantially conflicting bodies of law which in seven years will be used to justify a three-way circuit split. This slow-motion circuit split will defeat the Report’s objective of achieving the consistent application of federal law in the western United States. In order to maintain the integrity of the Ninth Circuit as a single court, the decision of any division within the circuit must constitute the law of the circuit subject to rehearing en banc.

Finally, my concern about the abandonment of stare decisis is not allayed by the proposal for the creation of the Circuit Division. From a litigant’s perspective, the plan imposes an additional burden and ensures more protracted proceedings. The Report observes that the Circuit Division "would not create a new tier in the judiciary, as it would merely substitute the Division for the existing en banc process." While the Circuit Division may not create a new tier, it adds a new procedural hurdle to appellate review as the dissatisfied litigant must first seek divisional en banc review and then review by the Circuit Division. This hurdle will cost the litigants thousands of dollars in additional attorneys’ fees and guarantee months of delay in resolving disputes. In addition, the Circuit Division would be composed of only seven members rather than the eleven-judge panels which currently review cases under the court’s limited en banc procedures. The reduced panel proposal seems to run counter to the Report’s acknowledgment that limited en banc review "worked well in its early years, perhaps in part because the eleven-judge panels represented a larger proportion of the court’s judges." From this observation it would follow that a larger number would better serve to ensure more consistent circuit law. Moreover, the jurisdiction of the Circuit Division is entirely discretionary, even when the litigants have demonstrated not just an error but "square inter-divisional conflicts." Thus, the Circuit Division is not required to perform its critical function of resolving inter-division conflicts.

In short, while the Report’s proposed experiment in creating circuit divisions to function as smaller decisional units has much to recommend it, I suggest three modifications: