CLEAR THE AIR.

Dear Editorial Staff:

APPELLATE STUDY PANEL ISSUES FINAL REPORT

Individuals and entities with concerns about public lands, the environment, and natural resources, as well as the federal judicial system in the western United States, have carefully followed the controversial debate over the possible division of the United States Court of Appeals for the Ninth Circuit.(1) This debate has been ongoing since 1995. The Ninth Circuit's bifurcation could significantly affect these resources and the federal courts. The latest phase of this continuing debate was Congress's decision to approve a study of the appellate system that would focus on the Ninth Circuit.

The Commission on Structural Alternatives for the Federal Courts of Appeals (Commission) issued its final report for the President and Congress on December 18, 1998.(2) The Commission was authorized by Congress in November 1997, and the commissioners were appointed by Chief Justice William Rehnquist a month later. The Commission had ten months to study the federal appellate system, "with particular reference to the Ninth Circuit."(3) It then had two months to write a report suggesting such modifications in circuit boundaries or structure as may be appropriate for the prompt and effective resolution of the appeals courts' caseload, consistent with fundamental concepts of fairness and due process.

Throughout 1998, the commissioners sought public input on many issues that implicated their statutory mandate. During the spring, the Commission held six one-day public hearings in Atlanta, Chicago, Dallas, New York, San Francisco, and Seattle. The commissioners also enlisted the assistance of the Federal Judicial Center (Center) and the Administrative Office of the U.S. Courts, the two major research arms of the federal courts. The Center helped the Commission develop surveys that the panel then circulated to federal judges and appellate practitioners seeking their views on the appeals courts. The Commission reviewed all of the relevant information that it had received and published a tentative draft report on October 7. The commissioners solicited public comment on that draft during a thirty-day period and issued a final report on December 18.(4)

The Commission determined that the courts "are operating under the pressure of caseload increases that have transformed them into different judicial entities from what they were at mid-century ... [while] pressures continue, and there is little likelihood that caseloads and work burdens on the judges will lessen in the years ahead."(5) The commissioners found "no persuasive evidence [that any circuit] is not working effectively, or that creating new circuits will improve the administration of justice in any circuit or overall."(6) The Commission considered Ninth Circuit administration "innovative in many respects" and concluded that there was "no good reason to split the circuit solely out of concern for its size or administration ... [or] to solve problems [of] consistency, predictability and coherence of circuit law."(7) The Commission concomitantly stated that dividing the court would eliminate the administrative benefits offered by the current circuit configuration and deprive the Pacific seaboard and the West of a means to maintain consistent federal law in this region. The commissioners rejected circuit splitting, unless there was no other way of treating perceived difficulties in the court of appeals. It proffered the concept of adjudicative divisions as an efficacious alternative for the Ninth Circuit, which should be available to all of the appellate courts as they increase in size.

The Commission specifically suggested that the Ninth Circuit remain intact but operate with three regionally based adjudicative divisions. The commissioners proposed that "each division with a majority of its judges resident in its region" have exclusive jurisdiction over appeals arising from district courts in those areas.(8) The Commission correspondingly recommended that a Circuit Division resolve conflicts that develop between regional divisions. The commissioners asserted that their "plan would increase the consistency and coherence of the law, maximize the likelihood of genuine collegiality, establish an effective procedure for maintaining uniform decisional law within the circuit, and relate the appellate forum more closely to the region it serves."(9)

Realizing that Congress might reject the recommendation for adjudicative divisions, the Commission stated that the "challenge of finding a workable solution is daunting."(10) The commissioners evaluated more than a dozen possibilities and "found each without merit."(11) Nonetheless, the Commission described the "only plans that are even arguable" but characterized all three as "flawed and [chose to] endorse none."(12)

The Commission honored its statutory mandate by submitting several recommendations for change in the federal appellate system. First, the commissioners developed the idea of divisional organization both for the immediate Ninth Circuit situation and as an alternative to circuit splitting for the remaining regional appeals courts as they grow. The commissioners, therefore, suggested a statute that would afford individual courts considerable flexibility in devising a divisional plan, emphasizing that the Ninth Circuit proposal was only one model.

Recognizing that these twelve courts vary in terms of their size, dockets, judicial resources, and growth rates, the Commission urged that Congress "equip those courts to cope with future, unforeseen conditions by according them a flexibility they do not now have."(13) The commissioners specifically recommended that Congress authorize each court of appeals to decide with panels of two judges, rather than three, cases that do not involve questions of public importance, pose special difficulty, or have precedential value. The Commission also suggested that Congress authorize circuits to create district court appellate panels consisting of two district judges and one circuit judge to review designated categories of appeals, with discretionary review available in the court of appeals. The commissioners contended that these measures collectively "should equip the courts of appeals with an ability, structurally and procedurally, to accommodate continued caseload growth into the indefinite future, while maintaining the quality of the appellate process and delivering consistent decisions--assuming, of course, that the system has the necessary number of judges and other resources."(14)

The Commission's suggestions, particularly those related to the divisional arrangement, received considerable criticism during the thirty-day comment period. Members of Congress and attorneys from California voiced concern that the state's four federal districts would be split between the Middle and Southern Divisions, thereby raising the spectre of different legal interpretations within California. Numerous senators from the Pacific Northwest claimed that the reasons proffered by the Commission for the divisional proposal also supported circuit splitting. Seven active and senior appellate judges of the Ninth Circuit correspondingly took the unprecedented step of calling for the court's bifurcation. However, virtually all of the remaining appellate judges sharply criticized the practicality of the divisional idea, contending, for instance, that the Circuit Division would impose another layer of appeal and, thus, increase expense and delay. Despite this criticism, the Commission made only minor changes in the final report.

The debate over the future of the federal appellate courts and the Ninth Circuit now returns to Congress. Some senators and representatives will probably introduce bills that embody the proposed legislation developed by the commissioners. Members of Congress who disagree with the Commission's recommendations may offer measures that modify those suggestions or that would split the Ninth Circuit. People and organizations who are concerned about natural resources and the federal courts in the West and the nation should convey their views to Congress.

Sincerely,

Carl Tobias
Professor of Law
William S. Boyd School of Law
University of Nevada, Las Vegas

(1) For an in-depth discussion of the debate regarding natural resources and the potential Ninth Circuit split, see Carl Tobias, Natural Resources and the Ninth Circuit Split, 28 ENVTL. L. 411 (1998).

(2) The full text of the Commission's final report may be viewed on the Internet. Commission on Structural Alternatives for the Federal Courts of Appeals, Final Report (visited May 25, 1999) <http://app.comm.uscourts.gov/final/appstruc.pdf>.

(3) The Third Branch (visited May 25, 1999) <http://www.uscourts.gov/ttb/dec98ttb/ december1998.html>.

(4) Commission on Structural Alternatives for the Federal Courts of Appeals, Final Report (visited May 25, 1999) <http://app.comm.uscourts.gov/final/appstruc.pdf>.

(5) Id.

(6) Id.

(7) Id.

(8) Id.

(9) Id.

(10) Id.

(11) Id.

(12) Id.

(13) Id.

(14) Id.