Clear the Air

Article excerpt

Dear Editorial Staff:


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. …