October 23, 1998

Writer’s Direct Dial Number
(213) 892-5804

By Fax (202) 208-5102

Justice Byron R. White
Commission on Structural Alternatives
for the Federal Courts of Appeals
Thurgood Marshall Federal Judiciary Building
1 Columbus Circle N.E.
Washington, D.C. 20544

Re: Comments on the Commission’s Tentative Draft Report

Dear Justice White and Members of the Commission:

The Commission is to be commended on the thoughtful and thorough discussion of the issues raised with respect to splitting or otherwise reorganizing the Ninth Circuit. Creating divisions within the Circuit is far better than splitting the Circuit into two or more Courts of Appeals.

With some significant modification, the divisional structure recommended could be effective in responding to the advocates for Circuit splitting. The principal modification is to merge the proposed Middle and Southern Divisions into one Division to avoid divisional severance of California.

Although the Commission recognizes that cutting California in two will raise concerns about forum shopping and diverging lines of federal authority in the State, the Commission has nevertheless recommended that separation in reliance upon stated assumptions that are seriously flawed.:

1. The Report states that "Californians" may thereby be subjected to differing views of federal authority. (Draft Report ["DR"] p. 41.) The unarticulated assumption is that only persons who are California citizens will be adversely affected. The assumption is incorrect. It is akin to stating that corporation law as pronounced by State courts of Delaware affects only Delaware residents or that Second Circuit decisions with respect to such issues as securities law and banking impact only New Yorkers. Federal law in California, especially in civil actions, directly affects non-California domiciliaries -- individuals and corporations that are transnational and multinational. The economy of the State of California is far larger than that of most countries in the world, and federal law affects all areas of that economy.

2. The Report states that divergence on legal issues of state law between the two proposed divisions in California would not be a serious problem because decisions on state law issues are not binding on state courts, and "[i]n any event, federal judges may certify important questions on which state law is not settled to the California Supreme Court." (Ibid.)

Decisions in the Ninth Circuit of state law issues in diversity cases are a relatively small part of the Ninth Circuit caseload, as compared with the impact of diversity jurisdiction in many other Circuits. However, such issues are very frequently before the Ninth Circuit as pendent claims alleged in federal district courts.

The conflict between decisions on state law issues creates difficult problems even though the federal decisions are only persuasive in state courts. The assumption that unsettled important questions of state law can be certified to the California Supreme Court by federal judges is true as a matter of federal law. However, the California Supreme Court has consistently refused to accept such certifications for many years, despite strong efforts by the Lawyers Advisory Committee to the Ninth Circuit to persuade the California Supreme Court to accept such certifications.

3. The Report assumes that the separation of California into two geographical divisions interpreting and applying federal law is analogous to the districts of California’s intermediate state appellate courts which, like the proposed Circuit divisions, are not compelled to follow one another’s decisions. Therefore, the Commission’s proposal "would not create a situation that does not already exist." (Ibid.)

The dockets of intermediate appellate courts in California and of the Ninth Circuit affecting California are not comparable. To be sure, both federal and state courts in criminal cases apply federal constitutional law because much of criminal procedure has been constitutionalized. However, California and federal law differs significantly in criminal cases in other respects because the applicable statutes are very different. On the civil side, the dockets of the two court systems are not similar. A large part of the dockets for California intermediate appellate courts concerns only the rights of the parties before the court; still other cases involve only issues arising from activities of city and county governments without statewide impact. In the Ninth Circuit, however, federal law issues impact the whole State. The Commission’s proposal would create a situation that has never existed in California or in any other federal appellate court.

4. The Commission assumes that the California State system is "well accommodated in state practice." (Ibid.)

The intermediate appellate court system in California has endured, but it is "not well accommodated." Conflicts between and among intermediate courts of appeal in California pose very real problems. The way they have been "resolved" is jurisprudentially unsound and has caused considerable mischief. Real conflicts between and among the Districts and Divisions of California’s intermediate appellate courts have far too frequently been buried by unpublished opinions, although the rules of court, as correctly applied, would often require publication. The difficulties are exacerbated because the California Supreme Court regularly "resolves" conflicts by ordering the later of two conflicting intermediate appellate court decisions, if published, to be "depublished," even though the remaining decision has not been approved by the Supreme Court.

Supreme Court Justices and members of the Bar are aware that depublication is an unjust and unsatisfactory way to resolve conflicts; however, the Justices have rationalized the practice as the only way in which it can manage its caseload.

5. "On federal law questions, conflicts can quickly be resolved by the Circuit Division and certiorari from ‘incorrect’ decisions or decisions that conflict with other Circuits can be sought in the United States Supreme Court." (Ibid.)

The Circuit Division is only supposed to "resolve square inter-divisional conflicts." (Id. at 42.) Head-on collisions are easy to spot unless they are buried in unpublished dispositions. Far more prevalent, however, are very serious sideswipes that are much harder to detect. Especially is this true when the opinion readers have not read the briefs and know little (if anything) about the pertinent parts of the record.

Neither petitions for hearing nor certiorari petitions are "swift." The description of "swiftness" can usually be applied only after counsel have filed such petitions (entailing both delay and significant expense) when the court to which the petitions are addressed denies them out of hand.

It is quite true that Circuit-splitting would not ameliorate the existing inconsistent interpretations of federal law in the federal system, but the proposed division of California exacerbates rather than improves the situation.

6. "[A] panel decision in one division asserted to conflict with the decision in another division could be reviewed by the Circuit Division only after the panel decision had been reviewed by the Division en banc or a divisional en banc had been sought and denied. . . . The Circuit Division would replace the circuit-wide en banc process, which would be abolished. This change would not create a new tier in the judiciary, as it would merely substitute the Circuit Division for the existing en banc process." (Id. at p. 42.)

It is difficult to understand how a new tier has not been created when the Circuit Division can only deal with a conflict after the panel decision had been reviewed by the Division en banc or divisional en banc has been sought and denied.

The proposed multiple en bancing procedures are inefficient, expensive and slow. The have been designed to avoid the very problems created by the proposed divisional structure. Most of those problems are created by dividing California that produces the lion’s share of the workload for the Circuit.

For these reasons the Commission’s stated reasons for the divisional arrangement, in my view, will not withstand meticulous scrutiny. Most of the criticisms that have been leveled at the present Ninth Circuit have been inspired by subjective concerns or political pressures. The Commission has recognized the former, and it has firmly disavowed restructuring to satisfy the latter.

Almost all of the legitimate concerns can be satisfied without splitting the Court at all. Dissatisfaction with the infrequency of en banc rehearings in the Ninth Circuit is well founded. However, the basis for that infrequency has not been judicial sloth, but rather the fact that the Ninth Circuit has been grievously shorthanded. Vacancies in federal judgeships in the Circuit have remained unfilled for months and even years. That intolerable problem cannot be resolved by reorganizing the Ninth Circuit because Circuit organization is not a part of its etiology.

The Report’s proposal to create the Middle and Southern Divisions rather than a single Southern Division creates more problems than it solves. The real problems can be addressed by the prompt filling of the judicial vacancies, by pressure within the Ninth Circuit to follow the Court’s own rules with respect to publication of opinions and to consider far more seriously requests for en banc consideration of cases that should require the attention of more than three judges of the Court.

The views I express are my own. Those views are based on more than thirty years of work in studying, writing, lecturing and teaching about the structure and functions of appellate court systems, on my service as Judge of the Los Angeles County Superior Court, the Appellate Department of the Los Angeles County Superior Court, the California Court of Appeal, and the Ninth Circuit. While a United States Circuit Judge, I also served on two of the Rules Committees of the United States Judicial Conference, and I designed the system for inventorying, weighing, and managing the Ninth Circuit caseload. In addition, I have practiced (and continue to practice) as an advocate before every level of the federal judicial system in multiple Circuits and before every level of the California judicial system for more than twenty-seven years.

Respectfully submitted,

Shirley M. Hufstedler

 

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