Heavy Workload Concerns Judges : U.S. 9th Circuit Studies Way to Improve Court’s Efficiency

Federal appeals courts in the West face a staggering increase in their caseloads over the next five years, prompting calls from some of the region’s top judges for specialized panels to hear complex cases and for a new system of appellate magistrates.

The proposals for managing an expected 50% increase in the workload of the U.S. 9th Circuit Court of Appeals come at a time of increasing doubt among trial judges and lawyers in the court’s ability to make timely decisions and establish consistent federal law.

Although the 9th circuit has made dramatic advances in recent years in reducing court congestion and delay, reports unveiled at the court’s annual conference last week reveal that the circuit’s case backlog, virtually eliminated three years ago, is back on the rise--and a virtual flood of new appeals is in view.

Already the largest and busiest intermediate federal appeals court in the nation, the 9th circuit’s caseload is now expected to exceed 7,000 appeals a year by 1992, up from the 5,041 cases filed last year.

Moreover, new federal sentencing laws scheduled to take effect in the next 18 months will for the first time open the appellate courts to thousands of federal convicts seeking review of their sentences.

The growing caseload reflects a trend throughout the nation that is transforming the judges of the close-knit, highly collegial appellate courts into managers of burgeoning judicial bureaucracies. But nowhere has the shift been more apparent than in the giant 9th circuit, where 28 active judges spanning nine states conduct court business by committee and engage in legal debate by computer.

The court has earned high marks for managing a caseload that is nearly twice that of most other federal appeals courts, but a new survey released last week shows growing concern among the court’s users about its ability to effectively conduct legal procedures.

Although the survey of the circuit’s 79 active district court judges and nearly 1,750 lawyers was largely positive, reflecting widespread confidence in the court and its operations, Chief Judge James R. Browning said he was “troubled” by an apparent perception that there are inconsistencies in opinions handed down by the court.

More than 68% of the judges and 59% of the attorneys surveyed this year found inconsistent rulings in the circuit to be a concern.

Because the 9th circuit’s rulings are the law of the land in the Western United States unless reversed by the U.S. Supreme Court, rulings that conflict with one another may leave large areas of the law open to doubt and, in the words of one attorney who responded to the survey, “injure the prestige of the court by weakening the persuasiveness of its opinions.”

Predictable Conflicts

Conflicting rulings, where they have occurred, are viewed by some as a by-product of the court’s judges, many of them new conservative appointees seeking to flex their muscles on the court. The judges themselves tend to downplay that view, however. Political and philosophical differences, they say, play a role in less than a fourth of the cases they decide.

Perhaps a more important factor may be a caseload so heavy that judges must handle a large number and wide variety of complex cases, making it impossible for them to review all the opinions handed down by their peers.

Although few judges and attorneys were able to point to specific cases, there has been what appeared to be conflicts in the court’s rulings in recent years on draft cases, standards of proof in employment discrimination, grounds for political asylum and the law governing business monopolies, said Arthur D. Hellman, professor of law at the University of Pittsburgh and coordinator of an upcoming study on the court’s attempts to manage its growing size.

May Be Imaginary

But judges of the court say the conflicts may be more imaginary than real, and their importance overplayed.

“It is my own perception that we do remarkably well in avoiding panel conflicts,” Browning said. “Nonetheless, the very existence of a perception that decisions of different panels of the court are not consistent is a very serious matter, whether or not the perception reflects the fact, and you may be sure the court will not take it lightly.”

Cases are decided by three-member court panels that are required by principles of law to follow precedents.

When more than one case concerning a particular issue is pending, all are assigned to the same panel. Staff attorneys examine new opinions to determine whether they conflict with past decisions.

And when conflicts appear, there is a procedure in which a panel of 11 judges can hear the case en banc to resolve the conflict and establish law for the court.

Can Change Directions

At the same time, panel judges faced with a previous ruling in a similar case are free to move in a new direction when the facts of a case seem to form a new frame of reference and distinguish the case from its predecessor--and it is from that kind of ruling that most controversy springs.

“All judges confronted with prior precedent, if they don’t like it, will try to find a way to distinguish it,” Browning conceded. “But my feeling is, that’s the way the law grows. You move a little bit here, then a little bit there, and bit by bit, you move the law along--like building a coral reef.”

Browning noted that the court heard only five cases en banc last year, and of those, only one was heard to resolve a genuine conflict.

But several judges said last week that five en banc hearings, less than half the number the court hears in most years and well below the rate of other circuit courts, may be far too low for a court the size of the 9th circuit.

Could Use It More

“I think we haven’t used the en banc process as much as we should, and I think recently it’s being used more where there are disagreements with the outcome (of a panel decision), rather than where there are perceived conflicts,” said Judge Stephen Reinhardt of Los Angeles.

Most of the trial judges and lawyers surveyed this year concluded that the average of 14.1 months it takes the court to reach a decision is “reasonable.” (The national average is 10.3 months.)

But more than 19% of the judges and 16% of the lawyers strongly disagreed with that conclusion, and more than 70% felt that the court was too slow in acting on emergency motions.

“There have been some absolutely miserable failures in several cases,” U.S. District Judge James M. Burns of Oregon said in a group discussion of the survey’s findings.

Charged With Contempt

In one case, he said, he had jailed a woman on contempt charges for refusing to testify, sentencing her to the maximum six-month sentence.

“I called ‘em up (the appeals court) and said, ‘Maybe I’m wrong!’ ” Burns recalled. “But she’d been out three months before they ever even got around to it. Now, she was no good as a person. She was absolutely miserable as a person, but the fact of the matter is, she had a right to have my decision reversed if it wasn’t right.”

Said U.S. District Judge William B. Enright of San Diego: “Don’t we give justice a black eye when we have these cases that reverberate two, two and a half years down the line?”

To help deal with some of the concerns raised in the survey and to handle the expected growth in appeals, the court’s long-range planning committee has suggested a wide range of options to enable the court’s 28 judges to cope with the workload.

Feasibility Study

The first, adopted by the court’s governing council last week, calls for a feasibility study on the use on a limited basis of specialized panels considering cases in a given area, such as tax law.

“The premise underlying this suggestion is that assignment of all appeals relating to a particular subject matter to the same small group of judges will lead to more efficient and better-informed decision-making and a more consistent body of circuit law,” Browning said.

The committee also recommended new legislation creating appellate magistrates, similar to those now employed in the federal trial courts, to take on some of the less complex jobs now handled by circuit judges.

Court officials estimate that it would take at least four additional judges to handle the volume of appeals expected over the next five years at present work levels, not counting work required to process the expected flood of sentencing appeals.

Ironically, although the the court had more than 5,700 cases pending at the end of last year, several judges had to cancel hearings because no cases were ready to be heard--an indication that some court delays may be due to slow attorneys, not slow judges.

New court rules adopted in June impose stricter deadlines for filing legal briefs and fines on those lawyers who fail to meet them, measures which Browning said should again eliminate the court’s backlog by the end of this year.