Highlights of Study Commission/Split the Circuit Issue
•Efforts to divide the Ninth Circuit which failed in the 105th Congress in 1997 resulted in the compromise creation of the Commission on Structural Alternatives for the Federal Courts of Appeals to study the issue and make recommendations to Congress.
•Retired Supreme Court Justice Byron White chaired the five-member Commission which reviewed prior studies, conducted surveys and public hearings, and issued its final report and recommendations on December 18, 1998.
•Splitting the Ninth Circuit is impractical and unnecessary. Realignment into two or more circuits would deprive the courts of the administrative advantages of its configuration and would deprive the West and the Pacific seaboard of a means to maintain uniform federal law in the area.
•To improve consistency and coherence of the court’s decisions, Congress should restructure the adjudicative function of the court of appeals into three smaller, regionally-based divisions:
• Each division (Northern, Middle, Southern) would have from 7-11 active circuit judges, with the majority residing in the division and the others rotating in from other divisions for set terms.
• Each regional division would hear cases in panels of three, subject to en banc review by all of the judges in the division.
• Each regional division would function as a semi-autonomous decisional unit; decisions rendered by one division would not be binding on any other division, but would be binding upon all trial courts in that division.
• A special Circuit Division for conflict correction would have the limited purpose of resolving conflicting decisions between regional divisions (this would add a new layer of appellate review)–the circuit-wide limited en banc process would be eliminated.
•Congress should authorize any court of appeals with more than 15 judgeships to restructure themselves into smaller adjudicative divisions to avoid the costs and disruptions of circuit splitting.
Proposed New Legislation
•Senators Murkowski and Gorton, two proponents of circuit division, introduced S. 253, The Ninth Circuit Reorganization Act of 1999, on January 19, 1999. The act incorporated all the recommendations of the Commission–retention of the circuit as an administrative entity and mandatory creation of autonomous divisions in the court of appeals for hearing and deciding appeals.
•S. 253 has been sent to the Judiciary Committee for review.
Flaws in the Legislation
•Frustrates the development of binding circuit law: The bill 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 circuit.
•Creates a new layer of review with attendant delays and expenses: The bill creates a Circuit Division for conflict correction which may only be invoked where a direct conflict exists between divisions. Such review would incur additional delays and expenses for the litigants and would not establish law of circuit-wide applicability.
•Divides appeals in California between two divisions: The bill sends appeals from the district courts of N.D. California (San Francisco, San Jose) and E.D. California (Sacramento, Fresno) to the Middle Division of the court of appeals, and sends appeals from the district courts of C.D. California (Los Angeles) and S.D. California (San Diego) to the Southern Division of the court of appeals.
• In California, this could result in one interpretation of federal law for the northern part of California and a different interpretation for the southern part of California.
• No objective justification is given for splitting California between federal appellate divisions or for isolating California into its own division.
• Bisecting a state for purposes of federal appellate review is unprecedented and violates the principal of a commonality of rights and responsibilities within a single state.
• If only one division ruled on a law of state-wide applicability, the courts in the other half of California would be free to ignore the ruling.
• No quick or affordable mechanism for resolving conflicts and inconsistencies is provided in the statue, thus prejudicing California litigants more than those in other states.
• Law enforcement, prosecution, and the work of public agencies would all be adversely affected by the uncertainty and inconsistency resulting from the disjointed appellate review structure.
• Businesses might move from or decline to move to California to avoid facing the varying federal interpretations of the same state and federal laws, adversely affecting the state’s economy.
• Dividing California appeals would increase forum shopping in order to obtain favorable precedent or a preferred pool of judges.
•The Department of Justice, the court’s largest litigant, opposes the divisional structure: The Department of Justice, which participates in more than 40% of the court’s cases, objected that the divisional structure “would have potentially adverse repercussions for the administration of justice in the Ninth Circuit and ultimately across all federal courts of appeals.”
•The chief judges of all but two circuits oppose the divisional structure solution: The overwhelming majority of Ninth Circuit judges and the chief judges of the courts of appeals for the First, Second, Third, Fourth, Fifth, Seventh, Eighth, and D.C. Circuits (affecting 28 states) oppose the divisional structure as untested, unnecessary and unworkable.