WASHINGTON REPORT: Remedy of Last Resort: ABA opposes plan to restructure 9th CircuitCourt of AppealsAuthor(s): ELIZABETH ROGERSSource: ABA Journal, Vol. 85, No. 11 (NOVEMBER 1999), p. 101Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/27841292 .

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YOUR ABA / WASHINGTON REPORT

Remedy of Last Resort ABA opposes plan to restructure 9th Circuit Court of Appeals BY ELIZABETH ROGERS

The aba is opposing legislation in Congress to restructure the 9th

U.S. Circuit Court of Appeals on

grounds that there is no compelling reason for taking such a drastic step.

In August, the aba's policy making House of Delegates adopted a resolution opposing a proposal to restructure the 9th Circuit into di visions. The resolution cited "the ab sence of compelling empirical evi dence to demonstrate adjudica tive dysfunction" in the circuit.

The proposal to restruc ture the 9th Circuit originat ed last year with the Com mission on Structural Al ternatives for the Federal Courts of Appeals, creat ed by Congress in 1997 to study the structure of the appellate courts.

Jurisdictions! Overreach? The San Francisco

based 9th Circuit is the larg est of the 13 federal circuits. The circuit's size, caseload and reversal rate in the Supreme Court have put it at the center of intense debate over court organization.

Proponents of restructuring maintain that the 9th Circuit is simply too big, with 28 authorized judgeships (11 more than any other circuit) serving a population of

more than 45 million (60 percent more than the next largest circuit) and growing. The U.S. Census Bu reau estimates that the circuit's population will grow to more than 63 million by 2010.

In its report, the congressional study group?known as the White Commission for its chair, retired Su preme Court Justice Byron R. White

?rejected the idea of splitting the 9th Circuit. Aba past President N. Lee Cooper of Birmingham, Ala., served as vice chair of the commis sion, and professor Daniel J. Mead or of the University of Virginia School of Law in Charlottesville

Elizabeth Rogers is a legislative assistant in the aba Governmental Affairs Office in Washington, Z).C. She edits Washington Summary, published by the gao.

was the group's executive director. The White Commission did rec

ommend, however, that Congress restructure the 9th Circuit into

three adjudicative divisions. Each would consist of between seven and 11 judges.

Each division would have ex clusive jurisdiction over appeals from District Courts within its boundaries and would perform en banc functions as if it were a court of appeals. Conflicting decisions be tween regional divisions would be resolved by a circuit division com

posed of 13 active judges, including the chief judge of the entire circuit.

The commission based its rec ommendation on a belief that smal ler decisional units would reinforce the predictability and consistency of the 9th Circuit's case law and its limited en banc procedures. In fact, the commission proposed that all federal circuits with more than 15 judges be authorized to adopt div isional arrangements. Currently,

the Fifth Circuit, based in New Or leans, and the Cincinnati-based 6th Circuit fall into that category.

The recommendations of the White Commission are incorpo rated in a bill introduced in the Senate by Frank H. Murkowski, R-Alaska, and Slade Gorton, R Wash. The measure, S. 253, was the subject of hearings during the summer in both the Senate

I and the House.

Start-up Problems Inherent The aba maintains that cir

cuit restructuring should be a remedy of last resort implement ed only if a court cannot deliver high-quality justice and coher ent, consistent circuit law in the face of increasing workload. The association believes circuit re

structuring would bring its own set of problems, including sub stantial start-up expenses for new construction or renovation of existing facilities, and for relo cation of personnel and tangible property.

Other potential problems, - according to the association, in

^ elude administrative disruption and unpredictability of case law in circuits whose boundaries are

moved. The aba is urging Con gress to first try to ameliorate any identified problems with the appellate courts by promptly fill

ing judicial vacancies. The Justice Department also

favors seeking other solutions be fore dividing circuits. Eleanor D. Acheson, assistant attorney gener al for the Justice Department's Of fice of Policy Development, testified to Congress that the White Com

mission's recommendations would "risk creating greater inconsisten cies in the law, greater delay in the resolution of cases, and greater chal lenges to the representativeness and legitimacy of the courts of appeals."

Though it is unlikely further action will be taken, the issue is expected to persist. "There is no doubt," said the report, "that scruti ny of the federal appellate courts will intensify over the next decade, and that calls for circuit restructur ing again will surface if caseload growth continues unchecked."

GRAPHIC BY JEFF DIONISE ABA JOURNAL / NOVEMBER 1999 101

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