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Testimony

Daniel M. Kolkey
Legal Affairs Secretary to California Governor Pete Wilson

Before the Hearings of the Commission on Structural
Alternatives for the Federal Courts of Appeals

May 29, 1998
San Francisco, California

My name is Daniel Kolkey. I serve as Legal Affairs Secretary and Counsel to Governor Pete Wilson and speak to the Commission today on his behalf. Prior to serving in my present position, I was a partner with the law firm of Gibson, Dunn & Crutcher, where I specialized in civil litigation in both the federal and state courts.

Any recommendations by this Commission concerning the structure and alignment of the federal appellate system should be tested against the standard whether they promote two principal objectives, which are increasingly in tension with one another: The ability of the system to render (1) reasonably timely decisions and (2) analytically consistent and carefully considered decisions. In the face of an increasing federal caseload, generating timely decisions either requires more judges ­ which can adversely affect the uniformity and analytic consistency of the resulting decisions ­ or demands that less time be allotted to each case ­ which may affect the quality and thoroughness of the decisions.

Governor Wilson believes that these two, sometimes competing objectives cannot be achieved through a split of the Ninth Circuit or through a further increase in the number of judicial circuits. An increase in circuits will only lead to inter-circuit conflicts which previously arose within a single circuit and which were resolved through the circuit's en banc procedures. Hence, a split of the Ninth Circuit will not promote more uniform, consistent decisions within the area that the Ninth Circuit serves, but will simply generate new conflicts among appellate cases in the two resulting circuits. Nor will a split of the Ninth Circuit expedite the processing of cases ­ unless more judges are added, which, in turn, will affect the uniformity and analytic consistency of the decisions rendered by that larger number of judges. Accordingly, the Governor believes that effective reforms must instead directly address (1) the increasing caseload and (2) the means to promote analytically consistent decisions within a larger circuit.

I will discuss four topics: (1) the reasons that an increasing appellate caseload does not justify an increase in circuits, (2) reforms which can address the increasing caseload, (3) steps that can promote analytically consistent decisions within the existing circuits, and (4) the reasons why a division of the Ninth Circuit would not promote these objectives, but would instead adversely affect the cause of justice on the West Coast.

I. An Increasing Appellate Caseload Does Not Justify An Increase in Circuits

In 1995, the "Long Range Plan for the Federal Courts," approved by the Judicial Conference of the United States, projected that if civil and criminal jurisdiction were to expand at the same rate that they had over the preceding 53 years, by the year 2020 the federal courts of appeals would be overwhelmed with 334,800 appeals, or over 600% of their current number of filings. Of course, that projection assumes the continuation of the current rate of expansion ­ which can be reversed.

We submit that an increasing caseload does not itself justify further dividing the federal circuits. After all, despite an increasing caseload, the current structure of judicial circuits has endured since 1866, with only three modifications since that time.(1) Indeed, the current structure has endured, although in the last 35 years, appeals filed in the federal courts of appeals (excluding the Federal Circuit and its predecessors) dramatically rose from 3,899 in 1960 to 49,671 in 1995.(2) Increasing the number of circuits will not only fail to expedite the processing of cases (unless the number of judges is also increased), but will negatively affect the pursuit of justice for at least the following reasons:

1) The fragmentation of our currently defined circuits into an increased number of circuits reduces the geographic diversity of the judges in a circuit, increasing the risks of parochialism and reducing the objectivity that a broader perspective engenders.

2) Fragmentation can lead to the application of different case law to parties who work in a single geographic region, thereby undermining the predictability of the law.

3) An increase in circuits leads to additional inter-circuit conflicts, which places an additional burden on the U.S. Supreme Court.

4) Fragmentation of the federal appellate system into more circuits may speed the issuance of decisions if more judges are added to the system. But an increase in judges can result in less uniform and less analytically consistent decisions.

Accordingly, the Governor endorses the sensible statement contained in the 1995 Judicial Conference's Long Range Plan, which states:

Circuit restructuring should occur only if compelling empirical evidence demonstrates adjudicative or administrative dysfunction in a court so that it cannot continue to deliver quality justice and coherent, consistent circuit law in the face of increasing workload.(3)

This statement implicitly ­ and soundly ­ rejects the proposition that there ought to be a cap on a circuit's size so as to require a split of larger circuits.

II. Addressing the Increasing Caseload

There are a number of ways to address the increasing appellate caseload without splitting the existing circuits, the most obvious of which is to reduce the rate of increase of appeals. And significantly, that does not necessarily require a reduction in appeals, only a reduction in the number of appeals decided by the courts. There are several ways to accomplish this:

A. Appellate-Level Mediation Conducted by Senior Judges

In recent years, appellate courts have been experimenting with settlement conferences. (See Rule 33, Fed. R. App. Pro.) However, settlement efforts could be more effective if they applied the following ADR techniques: First, mediation, rather than settlement conferences, has increasingly proven itself to be a much more effective ADR tool and should be utilized more. Second, mediation will be more effective if the courts use senior judges or professional mediators, rather than attorneys. Third, the timing of the mediation is critical to its success. There are times in the life of a case when mediation has better prospects than others. Some circuits schedule their settlement conferences within two months of docketing the appeal,(4) but that is not the time when the parties are focused on their case, let alone the strengths and weaknesses of their case. The Governor suggests that mediation of certain classes of civil litigation be required or strongly encouraged immediately following the filing of the appellant's opening brief. This would have a number of advantages:

1) It is at this point that the appellant becomes intimately familiar with the strengths and weaknesses of his or her case, having just completed the opening brief.

2) It is at this point that the appellee has an incentive to settle: He or she can avoid the cost and the preparation of a full brief if the case is settled.

3) Settlement during briefing and before oral argument saves the greatest amount of judicial resources. Indeed, the Federal Judicial Center observed in 1993 that it may be more fruitful "to focus delay reduction efforts on the period between when an appeal is filed and when it is submitted to a three judge panel for decision."(5)

4) Parties may be more persuaded to voluntarily resolve their disputes when offered a candid assessment of their case by an Article III judge who has insights into how similar cases are decided by his or her colleagues.(6) The use of senior judges would in no way create judicial disqualification problems since simple measures could be taken to keep the mediating judge out of the pool of eligible judges for the assignment of the case and since senior judges do not participate in any subsequent vote concerning en banc review.

5) Even if the case does not settle, by beginning the mediation process after an appellant's opening brief has been filed, the mediation can help focus the parties' arguments for purposes of the preparation of appellee's brief and the appellant's reply, improving the quality of the arguments to the court.

B. Codifying And Clarifying Judicial Abstention Doctrines Can Reduce Resort To The Federal Courts

Another means of reducing the federal caseload ­ while simultaneously strengthening federalism and encouraging comity ­ is the clarification and codification (through statute or federal rules) of the various and occasionally misapplied judicial abstention doctrines.

All too often, multiple proceedings are brought in state and federal courts over the same matter. This was the case in the litigation arising out of California's Proposition 187, which was simultaneously brought in both state and federal courts and ultimately decided by the federal district court. See League of United Latin American Citizens v. Wilson, 1998 WL 141325 (C.D.Cal 1998) (on appeal). Consider, too, Arizonans for Official English v. Arizona, 520 U.S. 43 (1997), in which the U.S. Supreme Court ruled that the district and circuit courts had given insufficient consideration to requests for certification of a state law question concerning the scope of the state constitutional provision in issue. The Supreme Court warned against premature adjudication of constitutional questions arising out of the construction of a state law not yet reviewed by the State's highest court. Following reversal by the U.S. Supreme Court, the Arizona Supreme Court rendered a definitive ruling invalidating the state constitutional measure, with the result that the nine years of federal litigation turned out to be a nullity.(7) Again, recently, in Delta Dental Plan of California v. Mendoza, 1998 WL 136211 (9th Cir. 1998), the Ninth Circuit ruled that a district court had improperly exercised jurisdiction over a matter that was already the subject of state administrative proceedings and ordered the dismissal of the federal proceedings pursuant to the abstention doctrine under Younger v. Harris, 401 U.S. 37 (1971).

Federal resources would be conserved, and federalism and comity respected, by a codification and clarification of some or all of the abstention doctrines. Codification would provide clearer direction to the federal courts and encourage the application of these doctrines.

A brief overview should suffice to show how codification will clarify and encourage the proper application of these doctrines:

"Pullman abstention" is invoked where a state court clarification of an uncertain state law may render a federal law ruling unnecessary. Yet, the doctrine has given rise to uncertainty regarding the circumstances under which the doctrine may be properly invoked and regarding whether it is mandatory or discretionary.

"Younger abstention" applies to avoid federal judicial interference with ongoing state proceedings which implicate important state interests and which provide an adequate opportunity to raise federal questions. Codification might avoid confusion over the elements of the doctrine, such as whether, inter alia, the state proceedings must be ongoing at the time the federal suit is brought.(8)

"Burford abstention" ­ invoked in deference to complex state administrative proceedings ­ is an area in which "lower courts continue to disagree,"(9) according to one commentator, and could be brought into conformance by statutory codification.

"Colorado River abstention" ­ under which courts may in the interests of judicial administration dismiss federal proceedings owing to the presence of concurrent state proceedings ­ and "Thibodaux abstention" ­ which may be invoked in diversity cases involving important state interests that implicate the state government's sovereign prerogatives ­ have also yielded confusion among lower courts, again justifying a clarification through a codification of those circumstances under which these courts properly may abstain.(10)

And federal courts should be encouraged (through rule or otherwise) to seek certification of state law questions ­ presently available in 44 states(11) ­ which could avoid the unnecessary expenditure of federal court resources. This mechanism not only respects the sovereignty of state courts in determining the contours of their own state law, but discourages forum shopping by which attorneys deliberately choose to raise issues of state law construction in a federal forum.

Codification and clarification of these doctrines could result in their being properly applied more often, reducing resort to the federal courts. And the application of the abstention doctrine could be institutionalized by its express inclusion in the list of motions under Rule 12 of the Federal Rules of Civil Procedure.


C. Diversity Jurisdiction

In keeping with the view that the reduction in the rate of increase in the courts' caseload can be achieved through a combination of measured, smaller steps, rather than one giant, radical step, Governor Wilson also recommends that the Commission reexamine whether the $75,000 amount-in-controversy requirement for diversity cases should be increased to $100,000.

D. Standing

Another area where the Commission can address the increasing caseload is to review statutory standing requirements for various federal statutory programs. While such a review is beyond the scope of this testimony, it cannot be gainsaid that relaxed standing requirements have occasionally led to suits brought more for the lawyer than the client.

III. Promoting Consistency in Judicial Decisions Through a Modification of En Banc

Procedures

Analytic consistency of judicial decision-making is necessarily affected by the number of judges in a circuit. Simply put, more judges encourage more combinations of three-judge panels which can see the issues differently. Yet, a judge must speak for the court. En banc review, particularly in a large circuit, is a primary means to secure or maintain uniformity of decisions within a circuit.

However, at present, en banc review "is extraordinary, and is generally reserved for conflicting precedent within the circuit which makes application of the law by district courts unduly difficult, and egregious errors in important cases."(12) Federal Rule of Appellate Procedure 35 provides that en banc review may be appropriate "when consideration by the full court is necessary to secure or maintain uniformity of its decisions, or when the proceeding involves a question of exceptional performance." Moreover, Rule 35 makes clear that en banc hearings or rehearings are "not favored and ordinarily will not be ordered."

However, the realities of large circuits suggest that the en banc review process should be invoked more frequently and completed more expeditiously. En banc review can help ensure the quality and analytic consistency of the circuit's law and should be broadened to allow any erroneous rule of law to be grounds for a request for en banc review (which the court can always decline).

To mitigate against the effects of increased use of en banc review, en banc panels can be composed of less than the full court, such as is the case in the Ninth Circuit, which allows en banc review by the Chief Judge and 10 additional judges drawn by lot. (Circuit Rule 35-3.) Congress has already authorized the use of limited en banc panels.(13) (However, consideration should be given to whether any limited en banc court should comprise at least 50% of the active judges of the court; otherwise, an en banc majority decision could reflect the views of less than one-quarter of the judges in the circuit.)

As requests for en banc review become more frequent, it is also important that large circuit courts have a mechanism to promptly make their decision whether such review will be granted. Although some circuits' internal operating procedures provide that the decision whether to grant a suggestion for rehearing en banc will be made within a time certain,(14) those procedures are not always followed. Delayed consideration paralyzes the litigants from taking any action to implement the panel's ruling. This is a problem that circuits can and should readily avoid by setting an internal deadline by which circuit judges' affirmative vote for en banc review must be cast or deemed to be a denial.(15)

IV. The Wisdom of Continuing the Current Boundaries of the Ninth Circuit

As shown, there are means to address the problems associated with an increasing caseload without splitting the circuits, and particularly the Ninth Circuit. Moreover, as long as the same number of judges remain authorized for the two resulting circuits, splitting the Ninth Circuit will not expedite the processing of decisions.

Indeed, despite its geographic size, the Ninth Circuit has achieved certain efficiencies that other circuits have not, most notably achieving an average disposition time for appeals ­ as measured from hearing to disposition of the case ­ of only 1.6 months, though the circuit average is 25% longer.(16) Further, although the Circuit handles one-sixth of all federal appeals and has a number of judicial vacancies, the median time for the Ninth Circuit to decide appeals (14.3 months as of September 30, 1995) is less than the Eleventh Circuit (15.1 months) and only slightly higher than the Sixth, Seventh, and District of Columbia Circuits. And the Ninth Circuit is faster than all of the others in rendering decisions in non-argument cases.(17)

However, a split would adversely affect the quality of justice on the West Coast:

1) A split of the Ninth Circuit threatens inconsistent rulings along the West Coast in areas such as admiralty law, commercial law, and environmental law.

1) In light of the size of California, any "balanced" split of the Ninth Circuit would have to (i) split California, (ii) leave California in a circuit of its own, or (iii) place California in a circuit with only one other state. A one- or two-state circuit would lose the balance and objectivity that geographic diversity in a multistate circuit fosters. As the Hruska Commission found in 1973, "circuits should contain states with a diversity of population, legal business and socioeconomic interests." The Hruska Commission reached the considered conclusion that a judicial circuit must be "composed of at least three states."

2) A split of California would not only risk parochialism but would invite forum shopping of the rankest kind. California would face the unprecedented prospect of a "circuit split" on a question of law within the same state, which would invite lawyers to forum shop between the two resulting halves of the state, a particularly

disconcerting prospect as it relates to litigation against the state or state agencies.

3) By reason of the number of appeals in California and the number of circuit judges residing there, a split of the Ninth Circuit could dramatically increase the work load shouldered by the judges remaining in California. For instance, one congressional proposal that created a circuit comprised of only California and Nevada would have left 15 authorized judgeships in that diminished circuit, with an increased work load of more than 50%.

4) Finally, a split of the Ninth Circuit appears to be motivated by judicial gerrymandering so as to cordon off some judges from others. That can never be a legitimate basis for circuit realignment.

Conclusion

Splitting circuits will not further the twin goals of issuing reasonably timely appellate decisions and generating analytically consistent and uniform decisions in the face of an increasing caseload. To the contrary, splitting circuits to meet rising caseloads means more inter-circuit conflicts and less uniformity among decisions. In short, it leads to less predictability in the law.

The better answer is to squarely address the problem by restraining the rate of increase in appeals, rather than accommodating the problem. Without infringing upon litigants' rights, this can be achieved through a combination of measured steps, ranging from a new and effective mediation program to resolve appeals to clarification and codification of the abstention doctrines so as to defer, where appropriate, to the state courts. At the same time, en banc review procedures can be broadened to promote intra-circuit consistency. Indeed, unless we attack the root of the problem, a new commission will be established in thirty years to decide whether to split the Seventeenth Circuit.

 


1. The Eighth Circuit was divided, thereby creating the Tenth Circuit in 1929; the Fifth Circuit was divided, thereby creating the Eleventh Circuit in 1981; and the Federal Circuit was created in 1982. See "Long Range Plan for the Federal Courts," 1995 Judicial Conference of the United States, at p. 45 n.8.

2. Id. at 42.

3. Id. Recommendation 17, at 44.

4. See Advisory Committee Note (a) to Ninth Circuit Rule 33-1.

5. "Structural and Other Alternatives for the Federal Courts of Appeals: Report to the United States Congress and the Judicial Conference of the United States," Federal Judicial Center, 1993, at 12 n.34.

6. The Third Circuit appears to be alone among the federal circuits in institutionalizing the use of senior circuit judges as mediators. See Third Circuit Rules, App. VI, ¶ 1. Although the Ninth Circuit has instituted a "settlement program" by local rule, it is "staffed with experienced attorney mediators." Advisory Committee Note to Ninth Circuit Rule 33-1 (effective January 1, 1997). However, Ninth Circuit Rule 33-1, as well as the accompanying Advisory Committee Note (a), contemplate the possibility that a judge may become involved in the settlement program.

7. See Ruiz v. Hull, __ P.2d __, 1998 WL 203081 (Ariz. 1998).

8. See, e.g., Delta Dental Plan of California v. Mendoza, supra.

9. Chemerinsky, Federal Jurisdiction, § 12.2.3, at 706 (2d ed. 1994).

10. Chemerinsky, supra §14.2, at 765 (concerning "Colorado River abstention," referencing "confusion among the lower courts as to what constituted sufficiently exceptional circumstances as to justify deference to concurrent state court litigation"); § 12.2.2, at 701 (concerning Thibodaux abstention, noting that "[l]ower courts are substantially divided over when abstention is appropriate in diversity cases").

11. See Schneider, "But Answer Came There None": The Michigan Supreme Court and the Certified Question of State Law," 41 Wayne L. Rev. 273, 275 & n.1 (1995) (noting that 43 states, and the District of Columbia and Puerto Rico, had adopted state law certification procedures). Since then, California has also adopted a certification procedure.

12.U.S. v. Weitzenhoff, 35 F.3d 1275, 1293 (9th Cir. 1993) (Dissenting opinion of Kleinfeld, J., with whom Reinhardt, Kozinski, Trott, and T.G. Nelson, J.J., concurred).

13. See 28 U.S.C. § 46(c) (referencing Pub. L. No. 95-486, § 6, which authorizes the creation of limited en banc panels where a court of appeals has more than 15 active circuit judges); Ninth Circuit Rule 35-3 (implementing same).

14. See Ninth Circuit General Orders 5.4, 5.5 (determinations whether to grant rehearings en banc generally made within eight weeks).

15. The Ninth Circuit has implemented a system for en banc determinations in capital cases, in which a judge's failure to cast a vote is considered a vote favoring en banc review. In non-capital cases, the presumption should be that a judge's failure to vote will be considered a vote against en banc review.

16. Statistics Division, Administrative Office of the Courts, Judicial Business of the United States Courts: 1997 Report of the Director, Table S-3 (1997 statistics).

17. Id.