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

Re: Tentative Draft Report of the Commission

Honorable Members of the Commission:

This letter is in response to the Commission's request for comments on its tentative draft report. While I applaud what is clearly an earnest effort, I find myself in fundamental disagreement with both the approach and certain assumptions which apparently underlie the report. Although I expect that concerns other than those discussed below will ultimately drive Congressional response to the Commission's efforts, I nonetheless hope that if enough judges and others having an interest in the well-being of the federal judiciary express their concerns, Congress will at least hesitate.

I begin with what appears to me to be a fundamental error in the Commission's approach. As I read the report, the Commission concedes that there are no objective findings which justify tampering with the present structure of the Ninth Circuit, either as an administrative unit or a court of appeals. Thus, the recommendations are not premised upon delay demonstrably attributable to the size of the Circuit, nor demonstrable inconsistency in the Circuit's law, nor any other observable phenomena; rather, it appears to be premised on a felt belief in the difficulty in a circuit of the

Ninth's size of fostering or maintaining collegiality, which is asserted as a value of its own, rather than as a means to an end related to the performance of the specific duties of a court of appeals.

With the greatest of respect, collegiality as an independent value is simply an insufficient basis for the restructuring which the Commission proposes. While it is asserted that collegiality aids in insuring uniformity and limiting error by encouraging en banc proceedings, given that there is no demonstration of greater inconsistency in the law of the Ninth Circuit, nor evidence that en banc proceedings result in fewer reversals by the Supreme Court, the relationship between the restructure and cognizable concerns is, at best, strained. More to the point, perhaps, is that those who have the actual experience, the judges of the Ninth Circuit Court of Appeals, don't agree that there is an absence of collegiality, or in any event that their work is adversely effected by its absence, if indeed it is absent. I should think that to the extent subjective opinions on this matter are relevant, the opinion of those with experience should prevail over those who, by virtue of a lack of experience, simply are not qualified to express an opinion. The point of the above suggestion is that, as with so many questions the judiciary deals with, the first question is which side bears the burden of proof? Here, I should think that those who seek a restructuring should bear the burden, and if they do, they have failed to carry it.

Even more objectionable, however, than the lack of evidence on the issue of the effect of size qua size, is the lack of any evidence to support the truly radical suggestion that the law of California be split among two appellate courts which will have no precedential relationship. As best I can tell from the report, this suggestion derives from the huge workload produced by this state's litigation, and the undeniable inability to work a split which is equitable while keeping appeals from district courts sitting in California within a single court of appeals. Since, as noted above, there is no objective justification for the circuit court of appeals split, there is also no objective reason to support this radical departure from our historic practice.

Even more serious, however, is the Commission's failure to come to grips with the chaotic consequences of its proposed division. While acknowledging that diversions in precedent will occur, followed by forum shopping and resulting in unpredictable law, the Commission sanguinely notes the weakness of the doctrine of stare decisis under California's jurisprudence as a justification. That reliance is utterly misplaced. I have remarked elsewhere on the difficulty the state's lack of appellate uniformity makes for district courts sitting in California, see Froyd v. Cook, 681 F. Supp. 669, 672 n.9 (E.D. Cal. 1988); it is appalling to suggest that we import that confusion into federal courts addressing federal law. I have no doubt that despite the Commission's views on the satisfactory nature of the California system, the Commission would not suggest importing California's doctrine which permits panels of the same division to refuse to abide by decisions they regard as erroneous; if not, they should at least favor us with an explanation of the difference.

Moreover, from my experience as a California lawyer and trial judge, the notion that the endemic instability fostered by California's system is generally regarded as satisfactory is simply wrong. I acknowledge that some members of the California Court of Appeals are quite happy not to be bound by the opinions of their sister courts (or indeed other panels of the same court), and some litigators enjoy the freedom to argue undeterred by precedent. My impression, however, formed as a California practitioner and former California trial judge, is that most trial judges, and many lawyers, not to speak of clients who cannot get reasonably reliable advice, do not share that contentment. In any event, it seems inconsistent to me to argue that the solution to a felt belief in inconsistency is its institutionalization.

For all the above reasons, I urge the Commission to reconsider its recommendation, or at least inform Congress that it needs more time so that it can undertake a formal study of the California system and its effect before it is introduced into the federal system.

Yours truly,

LAWRENCE K. KARLTON
Chief Judge Emeritus
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enclosure


cc: Sen. Barbara Boxer
Sen. Dianne Feinstein
Rep. Robert Matsui
Hon. Proctor Hug Jr.
E.D. Cal. Judges