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

To: Justice White and Members of the Commission
From: Ron Olson, Member of the California Bar⁽¹⁾
Re: Comments On The White Commission Draft Report

I am pleased to submit comments regarding the Tentative Draft Report. Because I already have submitted testimony regarding my views on the peril of splitting the Ninth Circuit, I will not reiterate those views here. But because the Commission proposes to "divide" rather than to "split" the circuit, I offer my observations about the problems that would arise if Congress implements this proposal. First, I will address problems that generally will result from the tripartite division. Then I will focus on the particular problems that dividing California will create.

The proposal will create some of very problems that the Commission set out to solve. For example:

• The Tentative Draft Report points to intracircuit conflicts in the case law as one reason for restructuring the Ninth Circuit. But under the proposed reordering of the Ninth Circuit into discrete subdivisions where decisions made in one division will not be binding on the other divisions in the Ninth Circuit, further intracircuit conflict seems assured. The proposed divisional structure will generate three formal strands of Ninth Circuit law.
• Also, the Tentative Draft Report cites the lack of collegiality among Ninth Circuit judges as a reason for segmenting the circuit into smaller, supposedly more intimate clusters of judges. But the geographical balkanization of the circuit and of the judges who preside therein likely will cause judges to think of themselves as Southern Division judges first, Ninth Circuit judges second. Thus, collegiality within the circuit will be weakened further.
• Finally, the Tentative Draft Report mentions the unwieldiness of the Ninth Circuit in its present form. But managing a circuit that has been segmented into three nearly autonomous subdivisions must entail far greater administrative costs to the Ninth Circuit, which, as I previously testified to the Commission, has been a pioneer of administrative efficiency among the circuits.

Even if the circuit is to be "divided," splitting California between divisions is a singularly bad idea. Several pitfalls of this approach are apparent to me:

• First, suspending California across two circuit divisions will foster intrastate forum shopping. The Commission's assurances to the contrary are of little comfort. As others already have observed, the Commissions' justifications for the segmentation of California into two divisions are premised on erroneous legal assumptions about the precedential value of decisions rendered in the California state appellate court system, and unrealistic practical assumptions about the feasibility of certifying questions to the California Supreme Court.
• Second, splitting California into two divisions will make state courts wary of the law of either division. In our federalist structure, of course, circuit decisions do not bind the states with respect to their interpretation of state law. However, much of the interpretation and development of California law takes place when, under their supplemental jurisdiction, the district and circuit courts of the Ninth Circuit flesh out the contours of state and federal causes of action by comparing them to one another. Because Middle Division and Southern Division case law could point the same state in two different directions, the unifying and predictive force of Ninth Circuit decisions will be diminished for California.
• Third, California citizens and industry in a state so divided may be subject to two different bodies of federal law, a legal problem that must affect personal and economic choices. And here, too, the proposal actually will perpetuate confusion among laymen and lawyers alike, a species of the very same legal uncertainty that occasioned the Commission's inquiry in the first place.

For these reasons, I conclude that the Commission's proposal delivers less progress than it predicts, and more uncertainty than it admits. Perhaps because the Commission sets out to fix a figuratively "broken" circuit by breaking it into three separate divisions, implementation of the proposal will create or exacerbate many of the same problems that the proponents of circuit reform seek to eradicate. The Commission promises to deliver harmony to the Ninth Circuit, but the heavy hand of cartography cannot secure that harmony. It will not be achieved through balkanizing the circuit as proposed. Despite its size, the Ninth Circuit is best left as it is.

DATED: November 6, 1998
Respectfully Submitted,

___________________________

Ronald L. Olson, Esq.


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