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

Dear Justice White:

As a Senator from Arizona (the state which generates more appeals than any other Ninth Circuit state except California),⁽¹⁾ a member of the Senate Judiciary Committee and the Courts Subcommittee, and as someone who practiced law in the Ninth Circuit for nearly 20 years, I have a keen interest in matters affecting the Ninth Circuit. I would like to accept the invitation of the Commission on Structural Alternatives to offer comments on the draft report.

Overall, I believe the draft report is responsive to Congress' request and will be helpful in our deliberation. I compliment the Commission for its thoughtful, constructive recommendations.

My principal concern is that, while the Commission's proposal of organizing the Ninth Circuit Court of Appeals into regional adjudicative divisions is good in concept, the Commission should evaluate other options for the proposed configurations. It would be most helpful to Congress if the Commission examined in detail a variety of alternatives and provided a thorough analysis of the reasons for and against the alternatives. From the Commission's draft report, it is unclear why the Commission configured the divisions the way it did; the report contains no explanation.

Ultimately, the question of reconfiguration depends on what factors are assigned the highest value -- caseload, population, contiguity, consistency of maritime law, keeping California intact, geographic affinity, having no more than three divisions, adhering to a "three-state" rule, etc. The Circuit could be divided or split many ways depending on which factors are the driving considerations. In short, the report would be much more helpful to

Congress if it discussed which factors should be given priority. I would like to illustrate the point of emphasizing different criteria by evaluating a three plausible options.

Possible Options

Keeping California Intact: Separate Division or Circuit for California

If it is important to keep California intact, then perhaps it would be best for California to constitute a separate division or a separate circuit. The Commission states that it would be "undesirable" to split California between circuits.⁽²⁾ But why not make California its own circuit? With 61.3 percent of the Circuit's caseload,⁽³⁾ a California circuit would still be one of the nation's largest circuits in terms of caseload and population -- and the remainder of the circuit would be a reasonable size.⁽⁴⁾

Moreover, if it is undesirable to split California between circuits, then perhaps California should not be split into divisions. Why not make California its own division? The caseload split would be approximately 60-40, which many people would consider reasonable.

I know that the Commission wants to maintain the court of appeals as presently aligned to respect the character of the West as a distinct region,⁽⁵⁾ but California is different enough from the other states that creating a California circuit or division would arguably not harm the West as a region.

Finally, I am aware of the oft-expressed view that a circuit should be comprised of at least three states to maintain a federalizing and regionalizing function. But it could be more prudent to have a state such as California its own circuit or division than to divide it into divisions containing other states. Indeed, if California were its own circuit or division, it would have a larger caseload than seven of the remaining eleven circuits.⁽⁶⁾ Perhaps concerns

about bifurcation should outweigh fealty to a "three-state" rule. Having one state comprise a circuit or a division seems reasonable considering that in many circuits one state dominates. For example, five circuits (the Second, Third, Fifth, Seventh, and Eleventh) have just three states. In each of these circuits, one state dominates: New York has 64 percent of the Second Circuit's caseload; Pennsylvania has 66.5 percent of the Third Circuit's caseload; Texas has 73.6 percent of the Fifth Circuit's caseload; Illinois has 57.8 of the Seventh Circuit's caseload; Florida has 57.3 percent of the Eleventh Circuit's caseload.⁽⁷⁾ It is unclear why some take the view that having three states in a circuit or a division (even though two of the states have only a small portion of the caseload) is so important that it precludes creating a separate circuit or division for a large state.

It would be helpful to Congress if the Commission discussed the idea of creating a separate division or circuit for California.

Caseload: Four-Way Division

If dividing California is not a problem -- and if caseload distribution is a priority -- then it makes sense to consider a four-way division. Under such a division, caseload (and population) is most equitably distributed. In fact, each division would contain a higher percentage of cases than the 21 percent comprising the Commission's proposed Northern Division; yet the highest percentage of cases (30.4 percent) would not come close to the 47 percent in the Commission's proposed Southern Division.

The Commission notes that "pressure continues, and there is little likelihood that caseloads and work burdens on the judges will lessen in the years ahead."⁽⁸⁾ This is particularly true in Arizona and Southern California. Southern California is the Circuit's fastest growing region in terms of caseload. From 1987 to 1997, the appeals from the Southern District of California increased 143.8 percent and from the Central District of California increased 74.5 percent.⁽⁹⁾ Based on these increases, the caseloads in the Southern and Central Districts of California are apt to be, respectively, the third and first largest in the Circuit in 2007 ⁽¹⁰⁾ -- comprising more than 43 percent of the Circuit's caseload.⁽¹¹⁾ Further, as I mentioned above,

the Commission states that "[n]ext to California, Arizona generates more appeals than any other state in the present Ninth Circuit";⁽¹²⁾ and Southern California (i.e., the Southern and Central Districts of California) produces the largest number of appeals in the Circuit -- 38 percent of the Circuit's appeals.⁽¹³⁾

Additionally, Los Angeles, San Diego, and Phoenix are the Circuit's three most populous cities and are, respectively, the second, sixth, and seventh most populous cities in the nation, according to recent figures of the U.S. Bureau of the Census provided by the Library of Congress.⁽¹⁴⁾ Also, Arizona and Nevada contain seven of the nation's 22 fastest growing cities: Chandler (2), Scottsdale (7), Glendale (14), Mesa (17), and Phoenix (22), Arizona; Henderson (1) and Las Vegas (6), Nevada.⁽¹⁵⁾

In short, putting Arizona and Southern California -- two of the most rapidly growing regions -- in the same division may provide, at best, a temporary solution, and prove unworkable in the near future. Very soon, these components of the proposed Southern Division may have to be divided into two roughly equal parts. That seems impossible without a reconfiguration of all of the divisions.

The Commission states that "[t]he concentration of appeals in the southern part of the circuit makes it impossible to divide the court's workload equally among the three

divisions. . ."⁽¹⁶⁾ Given this difficulty, and the problem of having to re-divide the Southern Division, it might be preferable to have four divisions, structured as follows:

4-Way Proposal	Caseload (17)	Population (18)
Western Division: Arizona, Nevada, and Southern California	22.0%	17.5%
Northern Division: Northwest, Hawaii, Guam, NMI	23.9%	25.1%
Middle Division: Northern and Eastern California	23.7%	25.6%
Southern Division: Central California	30.4%	31.8%

Under this scenario, the caseload (and population) distribution would be much less lopsided than under the Commission's tripartite division. Under the Commission's proposal (see chart below),the Northern Division would contain 21 percent of the Circuit's caseload, thereby apparently making 21 percent an acceptable threshold for caseload. Under the four-way proposal suggested above, every division would meet this threshold and no division would come close to the 47 percent caseload in the Commission's proposed Southern Division. Thus, if caseload distribution is of paramount importance, then for a more enduring partition, it might be reasonable to place Arizona, Nevada, and the Southern District of California in one division, the Northern and Eastern Districts of California in another division, the Central District of California in another division, and the Northwest and the Pacific Islands in the Northen Division.

Commission's Proposal

From the Commission's proposal, it is unclear which criteria were given priority -- perhaps geographic affinity dominated. Although the divisions may have geographic affinity, the caseload and populations are unevenly distributed:

Commission Proposal	Caseload (19)	Population (20)
Northern Division: Northwest	21.0%	22.4%
Middle Division: Northern & Eastern California, Hawaii, Guam, NMI, and Nevada	32.0%	31.5%
Southern Division: Central & Southern California and Arizona	47.0%	46.1%

Perhaps a factor other than geographic affinity was given priority; this seems likely in light of the recent recommendation that Arizona be placed in the Middle Division with Nevada and the Northern and Eastern Districts of California.⁽²¹⁾ Some have commented that there is a high volume of commercial dealings between Arizona and California and that Arizona relies on California caselaw. It is unclear (and would be helpful to know) to what extent such connections exist and how important such connections should be in determining division lines.

Furthermore, many people seem to assume that the northwest states (Alaska, Idaho, Nevada, Oregon, and Washington) must be grouped together, but if one starts with that premise, then options are limited and dividing the circuit becomes very difficult, especially if a four-way division is not considered. Given the current size and the continued growth (in both caseload and population) in the Central and Southern California Districts, as well as Arizona and Nevada, it seems as though there will always be a problem if there is a three-way division. Assuming that a four-way division is acceptable, it might be reasonable (in terms of caseload, population, geography, among other factors) to modify the Commission's recommendation by placing Arizona and Nevada in a separate division:

4-Way Proposal	Caseload	Population
Northern Division: Northwest, Hawaii, Guam, NMI	23.9%	25.1%
Middle Division: Northern & Eastern California	23.7%	25.6%
Southern Division: Central & Southern California	38.0%	37.0%
Western Division: Arizona and Nevada	14.4%	12.0%

Other Proposals

I have only discussed the Commission's proposal (as well as a modification of it) and two other plausible options. For the Commission's review, I am attaching several additional permutations, each with strengths and weaknesses in terms of caseload, population, geography, and other factors. (For ease of comparison, I am also including the charts contained in this letter.) It would be helpful to Congress to have the Commission's views on the relative strengths and weaknesses of various options.

Moving Arizona to the Tenth Circuit

I am also interested exploring in the idea of moving Arizona to the Tenth Circuit, an idea that seems to have significant merit because it is one of only three proposals recognized by the Commission as having geographic integrity, serving both the federalizing and regionalizing functions of federal courts, and being consistent with the principle of state contiguity in the lower 48 states.⁽²²⁾

The Commission states that disconnecting California from Arizona would be undesirable to the extent that "Arizona follows California law in several areas, and has significant commercial ties."⁽²³⁾ It may be more accurate to observe that, as some say, Arizona has more in common with the Rocky Mountain states than the Pacific coast states.⁽²⁴⁾ I would appreciate an examination of these two lines of thought and would appreciate a more thorough examination of the feasibility of moving Arizona to the Tenth Circuit.

Court of Appeals Sitting in Phoenix at Regular Intervals

No matter what Division that Arizona is placed in, I think that the Court of Appeals should sit in Phoenix at regular intervals.⁽²⁵⁾ This seems reasonable because, as noted above, Phoenix is the seventh most populous city in the nation and one of the Circuit's most populous cities,⁽²⁶⁾ as well as one of the nation's fastest growing cities.⁽²⁷⁾

Circuit Division

I am also concerned about the size of the proposed Circuit Division which will resolve "inter-divisional, intra-circuit inconsistencies."⁽²⁸⁾ I think that the Commission is right to note

that it "seem[s] paradoxical to respond to concerns about the present limited en banc by creating a conflict body that is even smaller."⁽²⁹⁾ The Commission concludes that the Circuit Division's composition will ensure that the views of the majority of the court's judges will predominate in that resolution."⁽³⁰⁾ But how will a body of seven judges (representing 28) do this? Currently, the limited en banc, which is comprised of 11 judges, is often criticized for not being representative of the circuit. I am concerned that a body of seven judges would similarly produce decisions that are unrepresentative of the entire court. I believe that the Circuit Division should be expanded to 13 or 15 members.

Structural Options for the Courts of Appeals and Discussion of Appellate Jurisdiction

Finally, I was interested in the proposals discussed in parts 3 and 4 of the report, such as authorizing the courts of appeals to decide selected cases with two-judge panels and authorizing the judicial council of any circuit to establish district court appellate panels to provide first-level review for designated categories of cases that involve error correction, with discretionary review by the courts of appeals.

I was particularly interested in the statement of Judge Merritt and Justice White on ways to reduce the caseload presented by diversity cases. I do not believe that their plan suggesting changes in federal jurisdiction exceeds the Commission's mandate. As Judge Merritt points out, his plan recommends restructuring diversity jurisdiction by Congress and is aimed at reducing circuit court caseload substantially. This certainly seems to meet the statutory command to make "recommendations for such changes in circuit boundaries or structure as may be appropriate for the expeditious and effective disposition of the caseload of the Federal Courts of Appeals." Congress can benefit from all of the Commission's recommendations. I hope that Judge Merritt's statement becomes part of the final report and that the Commission members consider including other proposals that will help with the "expeditious and effective disposition of the caseload of the Federal Courts of Appeals."

Conclusion

In closing, I would like to reiterate my appreciation for the Commission's diligent work and detailed draft report. I hope that my concerns can be addressed in the final report. The points I have raised are not meant to imply that reform should not move forward. In fact, lawyers frequently provide me with anecdotal evidence that it takes too long for cases reach conclusion in the Ninth Circuit, although statistics may show otherwise. I believe firmly that the reasons the Commission cites for division warrant speedy action.

Please do not hesitate to contact me if I can be of assistance. Thank you.

Sincerely,

JON KYL

United States Senator

30. Draft Report at 44.