Dear Justice White:

Please accept this letter as the State of Idaho’s comment on the Commission’s tentative draft report relative to the recommendation on the future structure of the Ninth Circuit Court of Appeals. I previously indicated that the Governor and I support a split of the Ninth Circuit and creation of a new Twelfth Circuit. Idaho continues to support a split.

The tentative draft recommendation would result in more bureaucracy and, most likely, longer delays within a judicial entity already plagued by delay and inconsistency caused by its unwieldy size. It also creates more issues and problems than we currently face. In a nutshell, the recommendation urges Congress to establish an administrative experiment in the nation’s largest (by far) federal circuit. Idaho does not want to be part of an experiment that has already failed. Report at 20.

The recommendation to create divisions within a single circuit does not follow from the central premise of the tentative draft report. The report recognizes that the rule of law requires a court to "function effectively, rendering decisions promptly and consistently and through a process that accords to every case the deliberative attention of the judges." Report at vii. The report goes on to acknowledge that appellate judges agree that an effective court of appeals requires fewer judges than presently authorized for the Ninth Circuit. Report at 27. The recommendation to retain the Ninth Circuit structure, perhaps adding more judges, and creating another layer of appellate review cannot be reconciled with the premise of the report.

The recommendation, if implemented, would very likely cause further delay in appeals. For example, in a capital case arising from the Northern Division, a circuit panel would first hear a habeas petitioner. The petitioner would then most likely find a decision from the Southern or Central Division which might, arguably, be in conflict with the Northern Division opinion. He would then seek review by the division panel. Whether he loses or wins a petition for a division hearing, he would then seek review by the Circuit Division. The division panel and Circuit Division steps would add a layer of review to Ninth Circuit appeals – under current rule, the Ninth Circuit has "seldom been requested and the court has never voted to rehear a case as a full court." Report at 30. One to two years of additional delay could be very likely in this scenario. Idaho cannot accept further delay from its federal circuit.

The recommendation does not in any way address the en banc issue. Currently, the Ninth Circuit does not engage in en banc reviews. Instead, it empanels less than the full court and calls it an en banc review. With the recommendation, we would have two panels engage in reviews, neither of which is an en banc review. First, a minority of Ninth Circuit judges would sit as a divisional panel. Then, an even smaller minority of judges would sit as the Circuit Division. The select judges on the Circuit Division are given the ultimate circuit power of "conflict correction." Moreover, the seven judges on the Circuit Division would include four to five judges who are not assigned to the division from which the appeal arises. These four to five judges would not be familiar with the law of the originating circuit. In short, the recommendation takes a non-existent en banc review process, divides and then dilutes it, and allows fewer judges to make the final decision. Idaho urges that it is entitled to a true en banc process.

Thank you for the opportunity to comment on the report. Idaho again urges that your Commission recommend to Congress that the Ninth Circuit be split and a new Twelfth Circuit created.

Sincerely,

ALAN G. LANCE
Attorney General

AGL:tj

cc: Dirk Kempthorne, U.S. Senate
Larry E. Craig, U.S. Senate
Orrin G. Hatch, U.S. Senate
Michael D. Crapo, U.S. House of Representatives
Helen Chenoweth, U.S. House of Representatives
Henry J. Hyde, U.S. House of Representatives
Denton Darrington, Idaho State Senate
Clyde Boatwright, Idaho State Senate
Sheila Sorenson, Idaho State Senate
Hal Bunderson, Idaho State Senate
James E. Risch, Idaho State Senate
Robbi King, Idaho State Senate
Darrel Deide, Idaho State Senate
Jack Riggs, Idaho State Senate
Celia Gould, Idaho House of Representatives
Paul Kjellander, Idaho House of Representatives
Donna Jones, Idaho House of Representatives
John H. Tippets, Idaho House of Representatives
William T. Sali, Idaho House of Representatives
Debbie Field, Idaho House of Representatives
Lenore Barrett, Idaho House of Representatives
Frank C. Bruneel, Idaho House of Representatives
Twila Hornbeck, Idaho House of Representatives
Jim Clark, Idaho House of Representatives
Julie Ellsworth, Idaho House of Representatives
Christine O. Gregoire, Washington Attorney General
Hardy Myers, Oregon Attorney General
Bruce Botelho, Alaska Attorney General
Joseph P. Mazurek, Montana Attorney General
Daniel J. Meador