Highlights of Proposed Legislation
The Commission on Structural Alternatives for the Federal Courts of Appeal concluded that there is no persuasive evidence that the Ninth Circuit is not working effectively, and strongly recommended against splitting the Ninth Circuit itself. However, S. 253, the Federal Ninth Circuit Reorganization Act of 1999, divides the Ninth Circuit Court of Appeals in the vital adjudicative functions it performs.
It creates three virtually autonomous divisions, each with its own independent en banc process. Neither the panel decisions nor the divisional en banc decisions would be binding elsewhere in the Ninth Circuit. This would not only frustrate the development of the law binding throughout the circuit, but add procedures that would create additional expense and delay for the litigants. It would create special problems for the State of California which would be divided between two separate divisions. The decisions of one division would not be binding on the other, resulting in inconsistent enforcement and interpretation of federal and state law within California. Senator Feinstein told the Commission this “could create chaos,” especially for businesses and enforcement agencies in California.
The divisional structure is proposed as a model for other courts to follow as their number of judges increases. The proposal is opposed, not only by an overwhelming majority of the judges of the Ninth Circuit, but also by the Chief Judges of the Courts of Appeals in the First, Second, Third, Fourth, Fifth, Seventh, Eighth and D.C. Circuits. The vast majority of individuals (judges, attorneys, professors, governors, and other public officials) and organizations (public agencies, bar associations, and courts) commenting on the Commission’s draft have been critical of these recommendations.
The Department of Justice, noting that it participated in over 40% of the cases heard in the federal courts of appeals, commented: “We agree with the draft report’s recommendation that the Ninth Circuit should not be split at this time, and we concur generally in its view that ‘[t]here is no persuasive evidence that the Ninth Circuit (or any other circuit, for that matter) is not working effectively, or that creating new circuits will improve the administration of justice in any circuit or overall.’ In our view, the lack of evidence supporting circuit splits also counsels against what we view as the principal recommendation contained in the draft report – the creation of divisions for the Ninth and other large circuits. That proposal would have potentially adverse repercussions for the administration of justice in the Ninth Circuit and ultimately across all federal courts of appeals.”
Most commentators believe that the proposal embodied in S. 253, to carve the Ninth Circuit Court of Appeals into three autonomous divisions, would adversely impact litigants in the form of additional delay and expense, create potential for conflict within the West and the Pacific Rim, without providing a speedy means of resolution, promote inconsistency in the law, and retard collegiality. The great majority of the judges and lawyers of the Ninth Circuit believe the concerns raised in the Commission Report can be addressed within the present structure of the court and with far less disruption than a whole new divisional structure.