Comments of Seven Circuit Chief Judges (Edwards, Torruella, Winter, Becker, Wilkinson, Posner and Bowman)

Comments of Alan Lance Attorney General, Idaho

November 6, 1998

I agree with Attorney, Martin W. Schwartz's comments.

Furthermore, as a member of the increasing unrepresented parties that the report states (Page 16),I believe we must not be discriminated in not being heard by oral argument nor publication (Page 22)- Emphirical evidence of this can be found @ Dis. Ct #CV92-1291 Phx-Rgs: 9th CirCA95-16269.

Finally, let's use our electonic capabilities expanding access for greater review by the Supreme Court, while the circuit confusion and burden- some rules are simplied with district court review boards. Thank you.

ddbarker@mailexcite.com

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November 6, 1998

Dear Commission:

Thank you for this opportunity to comment on the draft report. Being apart of the growing number of unrepresented litigants in the Federal Court System (see p. 16, fourfold increase in four decades!) who share common pro- blems of simply not afforded the right to be heard and not considered wor- thy of oral argument nor publication (see p. 22), I offer emphirical evi- dence of these truths @ Dis. Case# CV92-1291-RGS ; 9th Cir CA95-16269.

Therefore, it is just and good to continue to "rethink" the Court System beyond the submitted ideas for reconfigeration and restructing to November 6, 1998

We growing number of unrepresented parties (p.16, fourfold increase in four decades!) share common problems in the present Federal Court System: NOT BEING HEARD; moreover, denied oral argument and publication /Emphirical Evidence of this @ Dis.Ct. #CV92-1291-Phx-Rgs; 9th Cir CA95-16269.

Let's continue to "rethink" the Courts! We desperately need to provide our citizens their Constitutional due process. The 21st Century has tremendous potential for electronic communications bringing us together for needed un- iformity of systems for justice. We need unity, not division. Controlling precedence should be a national mentality for which there lies reason and law. Bring the appellate review to the District Court as Review Boards, while the Supreme Court is expanded to dispense justice to far too many turned away from its review today. Thank you for your consideration.

Sincerely,
DD Barker, Citizen United States of America
ddbarker@mailexcite.com

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Steven H. Goldblatt, Professor of Law and Director of the Georgetown University Appellate Litigation Program

• Letter
• Comments to the Tentative Draft Report of the Commission on Structural Alternatives for the Federal Courts of Appeals

The proposed plan to subdivide the 9th Circuit is ludicrous. Creating multiple divisions whose rulings are non-binding on each other only further and unnecessarily complicates the law. It is bad enough that in the federal system the law so often changes from circuit to circuit, that nobody knows what the law really is on many important topics. Instead of subdividing circuits, you ought to think about asking the Congress to do away with the circuit courts of appeal, and replace them with a single, intermediate federal appellate court. Federal precedent ought to be more uniform throughout the United States and the Supreme Court should be freed to only handle matters within its original jurisdiction or which are so clearly important that they require a pronouncement from the apex of the judicial branch. Does it make any sense that a seizure of evidence by, for example, FBI special agents in Los Angeles, would be lawful there but under the same set of facts, unlawful in San Francisco? That is the havoc your plan will engender.

It is for good reason that the public has little confidence in our legal system and almost none in our lawyers. You should work to ameliorate that situation, not aggravate it.

Thank you.

Martin W. Schwartz, Esq.
Member, NY Bar
Admitted; SDNY, EDNY, USCA 2nd, USCA DC Circuit, US Supreme Court.

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Comments of Judge Avern Cohn

Comments of Chief Judge Procter Hug, Jr.

• Letter on behalf of US Court of Appeals for the 9th Circuit
• Letter on behalf of the Judicial Council of the 9th Circuit
• Analysis (Attachment for Both Letters)

Comments of Daniel J. Bussel, Professor of Law, University of California, Los Angeles

As someone who studies, and has written about, the Ninth Circuit, and about the federal appellate courts more generally, I found the report thorough and helpful. Most important is that the Commission effectively "knocks in the head" any proposal to divide the Ninth Circuit; the report should --if rhetoric does not overtake sober thinking-- lay to rest any such efforts, or at least I hope it would.

However, the proposal for units within the circuit and mechanisms for resolving any conflict among them is, I feel, at best strained. (1) An attempt is made to distinguish the commission's proposal from the Ninth Circuit's earlier sitting in geographical panels, but the attempt is not persuasive. The judges have tried the basic mechanism proposed by the commission, and it simply didn't work. To pass legislation forcing the Ninth Circuit to go through that again would not, I believe, be productive. (2) As an earlier comment has already indicated, the proposal is both ambiguous and complex, and would not seem workable. (3) Although a serious effort is made to deal with the problem of dividing California between two units, and the Commission is to be commended for trying to address this matter, the "two Californias" issue is at bottom a political matter -- which no one really wants to touch, and I think THAT is the reason that the Hruska Commission proposal failed, and that this part of the Commission's proposal would similarly come to grief.

Stephen L. Wasby
Professor of Political Science, University at Albany - SUNY
(518) 442-5375
e-mail: wasb@cnsibm.albany.edu

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10/26/98

Comments of Judicial Advisory Committee for the Eastern District of California.

• Letter
• Resolution

Justice White and Members of the Commission,

I am concerned that the Commission's recommendations, if implemented, will aggravate one major problem which they are designed to alleviate. At present, Ninth Circuit Court of Appeals panels, like panels in every other circuit, are bound by prior panel decisions, and decisional uniformity in the Ninth Circuit is hindered only because its judges are (understandably) overwhelmed by the volume of decisions released there. Under the Commission's plan, however, intra-circuit decisional variance may actually increase, as the Draft Report provides that judges in one of the Ninth Circuit's divisions will not be bound by decisions from another division and will only have to accord those decisions "substantial weight." We know from experience that the circuit Courts of Appeals, who also view each others' decisions as persuasive but not controlling, are not afraid of splitting from one another, and I know of no reason to suppose that the proposed divisions of the Ninth Circuit will act any differently.

The Draft Report does of course provide for a Circuit Division to resolve conflicts between the regional divisions, but this is solution is far from perfect. First, the Draft Report provides for discretionary Circuit Division jurisdiction, so intra-circuit conflicts - the number of which, remember, may increase - may remain unresolved. Mandatory jurisdiction would be an improvement. Second, the Circuit Division represents another round of review, and the Draft Report is heavy on rounds of review. Imagine the worst-case scenario: a District Court judge sentences a criminal defendant, and the sentence is then reviewed by a District Court Appellate Panel, a Court of Appeals panel, the Court of Appeals division en banc, the Circuit Division, and the Supreme Court. (Under recent Ninth Circuit practice there has been a maximum of three rounds of review.) How many years would this take, and how many criminal defendants can afford to finance such protracted litigation?

In addition to increasing the length of the appellate cycle, so many rounds of review may create a confusing body of precedent. Would District Court Appellate Panel decisions bind district judges in the Panel's division? Within one division, would all decisions from another division (whether from a District Court Appellate Panel, a two-judge or three-judge Court of Appeals panel, or a division en banc) be entitled to equal weight or to the same weight as a decision (whether from a District Court Appellate Panel, a two-judge or three-judge panel, or an en banc panel) from another circuit? These two questions, only examples, point out an underlying problem: with more rounds of review come more judicial opinions, and with more opinions comes increased research time (and therefore cost) to sort through them all. I am not convinced that overwhelming judges in this fashion is any better than overwhelming them the way we do now.

Thank you for your consideration.

Scott P. Glauberman
Law Clerk to Chief Judge Marvin E. Aspen
United States District Court for the Northern District of Illinois

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I oppose the Appellate Study Commission's draft report in two respects. I oppose the recommendation that Congress enact a statute authorizing each court of appeals to decide some types of selected cases using panels of two rather than three judges; and

that Congress enact a statute authorizing circuit judicial councils to establish district court appellate panels to provide appellate review in designated categories of cases with panels of two district judges and one circuit judge, with discretionary review available thereafter in the court of appeals.

Paul Brown
United States District Court
Eastern District of Texas

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I am an attorney licensed in Illinois. I have a few concerns about the proposal to divide the Ninth Circuit, but on the whole I support the plan. My concerns are as follows:

(1) It's not entirely clear to me how senior judges fit into this scheme. Do they count toward the number of "judgeships" required for various stages under the plan? Many of our senior judges remain leaders in the law, and it would be foolish to ignore their contributions and influence. Further, there's the question of how a senior judge would be allocated among the divisions of the Ninth Circuit. For example, let's assume--as is not unlikely, given the ages of the judges sitting on this date--that most of the next few changes to senior status are of judges in California. Does the Chief Judge then have the right to assign them to divisions away from California, or away from the part of California in which they reside?

(2) One significant issue arising from the particular division proposed is the question of challenges to the constitutionality of California law. Should all cases involving such a challenge then be heard in the Middle Division, since that is where the state government sits? Or should decisions regarding constitutionality of a state law when that state includes more than one division automatically be assigned ab initio to the Circuit Division? Or is another method necessary? It seems to me that Federal-State comity requires extra care when more than one appellate court potentially has jurisdiction over such an issue. We should be proactive in trying to avoid conflicts among the divisions of an appellate court, rather than simply hope we can resolve them later, when the issue involves constitutionality of state law.

(3) Until the Congress and the respective state governments take access to the courts seriously, I do not believe in any further restrictions on diversity jurisdiction. Inadequate funding, glacial confirmation proceedings, and insufficient judgeships at the Federal level certainly pressure the Federal system to get cases out of the Federal system. This disserves citizens, however, when the overloaded Federal system is better able to provide a hearing than even more overloaded state courts.

Thank you for taking the time to produce your thoughtful report.

Sincerely,

C.E. Petit

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Comments from Justice Sandra Day O'Connor, Supreme Court of the United States.

• PDF Format - 1.4 MB *Requires Adobe Acrobat Reader
• GIF Image - 12K

To Whom It May Concern:

I just wanted to send a brief comment on the recent suggestion to divide the 9th Circuit. I doubt the wisdom of an idea that appears on its face less of an efficiency measure and more of a punitive measure designed to realign the circuit which has been most-often criticized by the Supreme Court as being 'too liberal.' I believe that the proposed changes to the system are an effort to weaken the liberal tendencies of the circuit, and before such changes were implemented, I would simply like to know the commission's thoughts on whether or not a restructuring like the one proposed would have a tendency to deter decisions the Supreme Court disagrees with.

Dan Silverstein
dannys@acusd.edu
8529 Paradise Valley #162
Spring Valley, CA 91977

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To whom it may concern:

The October 8, 1998 edition of the San Francisco Daily Journal quoted your report as comparing the proposed plan to decisions of the California state appellate system, "which is organized into geographical districts and where the decisions of one appellate court 'have no binding precedential effect outside that court's jurisdiction.'"

This is a misstatement of California law. In California, "[d]ecisions of every division of the District Courts of Appeal [now the Courts of Appeal] are binding upon . . . all the superior courts of this state . . . ." Auto Equity Sales, Inc. v. Superior Court, 57 Cal. 2d 450, 455 20 Cal. Rptr. 321, 324 (1962).

Thus, in California, a trial court does not commit error if, in the case of a split among the districts, it chooses to ignore the precedent of the Court of Appeal district within which it sits in favor of that of another district. See, e.g., People v. Bullock, 26 Cal. App. 4th 985, 990, 31 Cal. Rptr. 2d 850, 854 (1994) (observing that "[c]learly the trial court was not following [the Court of Appeal's precedent], but it was not obligated to do so. Under California's system of appellate review, the opinions of the various district appellate courts are equally binding on all the courts of inferior jurisdiction in the state. The trial court was free to follow [another district of the Court of Appeal's] line of cases . . . ")

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Kazuhiko Sano
Jackson Tufts Cole & Black, L.L.P.
650 California Street San Francisco, California 94105
ksano@jtcb.com
(415) 433-1950

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