Oct. 21, 2003

By OCE Public Information Office

Leading off testimony to a House subcommittee, Chief Judge Mary M. Schroeder today said that the U.S. Ninth Circuit Court of Appeals is functioning well and that she sees no justification for a bill that would split the circuit.

Judge Schroeder along with fellow Ninth Circuit Judges Alex Kozinksi and Diarmuid F. O'Scannlain appeared before the House Subcommittee on Courts, the Internet and Intellectual Property to discuss HR 2723, introduced earlier this year by Rep. Mike Simpson of Idaho.  The bill would divide the Ninth Circuit into two circuits: California, Nevada and Arizona would remain in the Ninth Circuit, while Alaska, Guam, Hawaii, Idaho, Montana, Oregon, Washington and the Northern Mariana Islands would be grouped into a new Twelfth Circuit. 

"I have nothing but positive things to report on the Circuit’s conduct of its business since I appeared before you approximately 15 months ago," Judge Schroeder said, referring to testimony she gave to the committee in July 2002 on a similar circuit split bill introduced by Rep. Simpson.

"There was no reason to divide the Circuit then and absolutely none now," she said.

Judge Kozinski concurred, focusing his comments on procedural and administrative steps taken to ensure consistency of law within the circuit; the availability of en banc review; and technological advances that enable judges with chambers scattered across nine states to communicate "as if they were in the same courthouse."

Judge Kozinski said that innovations in caseload management, such as a system now in place to inventory and monitor the progress of possible precedential cases, have "allowed this court to function more efficiently today than it ever has. I believe that HR 2723 would impede much of the progress we have made in managing a large appellate court."

Splitting the circuit has long been opposed by the Judicial Council of the Ninth Circuit and the current bill is criticized as being unnecessary and resulting in the creation of two geographically, demographically and judicially unequal circuits.  Some individual judges have voiced support, including Judge O'Scannlain, who testified in support of HR 2723 and similar bills before it.

In addition to the judges, Professor Arthur D. Hellman of the University of Pittsburgh School of Law also testified, saying he anticipated some positive results from a circuit split.  However, when pressed for his position, Prof. Hellman said he did not believe Congres should act to split the circuit unless it was favored by a large majority of the judges of the court.

Prof. Hellman is a nationally known scholar of the federal courts, producing a series of empirical studies on the operation of precedent in the U.S. Supreme Court and the courts of appeals, and a study of intercircuit conflicts.

Opening statements given to the committee by the judges and Prof. Hellman are currently availably at the House Judiciary Committee website:  http://www.house.gov/judiciary/courts.htm.