Legal caseload limits
By WILLIAM GLABERSON of The New York Times
FORT MYERS Fla.—A crushing load of cases is forcing a reshaping of the federal appeals courts, creating a two-level justice system in which tens of thousands of appeals receive limited reviews, judges and legal scholars say.
Some judges say the changes are necessary for the appeals courts which are second in importance only to the Supreme Court to cope with the growing number of Cases without increasing the time people must wait for rulings.
It has meant that fewer than half of all federal appeals cases are argued before judges and only a fourth of all decisions are rendered in full published opinions—many decisions consist of a single word, like "affirmed," upholding a lower court.
Critics say people's legal rights are often being damaged.
Instead of reviewing every case before them, as federal law requires, the critics say, the appeals courts are becoming more like the Supreme Court, which has the power to decide which cases it will hear.
Complex civil-rights and antitrust cases that appeals judges deem important get the same detailed consideration as always. But some judges
and scholars say entire classes of appeals deemed routine, such as inmate petitions and Social Security disability claims, get abbreviated attention as staff lawyers sort out cases to recommend for full hearings.
"It is a two-track system, and the tracks basically get allocated by non-judges," said Patricia Wald, a judge on the District of Columbia U.S. Court of Appeals.
The Country's 12 regional federal circuit courts began introducing shortcuts in the 1980s to help judges cope with the number of cases, which grew to 53,805 last year from 33,360 in 1985.
In one controversial change, they created staff lawyer positions with the authority to screen and, some critics say, to effectively decide cases by giving judges summaries of recommended decisions.
Now the question of whether the shortcuts are fair is before one of the reviews of appeals architects of the abbreviated procedures, the 11th U.S. Circuit Court of Appeals in Atlanta, in an appeal of a Florida political corruption case.
Lawyers for a former county commissioner convicted of depriving constituents of her "honest services" are trying to challenge a one-word ruling upholding the conviction — "affirmed"—by a three judge panel. Her lawyers say it is not even possible for them to tell why her appeal was denied, much less to try to appeal to the Supreme Court.
The lawyers have asked the full 12-member court to review the decision as well as the court's streamlined appeals procedures.
One measure of the abbreviated treatment given to many cases, some judges and scholars say, is a sharp decline in the number of decisions that federal appeals courts publish in law books. Unpublished decisions do not establish precedents.
In studies of unpublished decisions, two law professors, William Reynolds of the University of Maryland and William Richman of the University of Toledo, say the rulings are usually so succinct that it is impossible to discern the facts of a case or the reasons for the judges' ruling.
They have suggested that sketchy rulings may sometimes be used by judges who want to reach a certain legal result but are not eager to have their decisions scrutinized.
"IT is SORT of a formula for irresponsibility," said Richard Posner, the chief judge of the 7th U.S. Circuit Court of Appeals in Chicago. "most judges, myself included, are not nearly as careful in dealing with unpublished decisions."
Some federal appeals judges say many cases are given abbreviated reviews because they are frivolous. No one, they say, is being denied careful appellate review.
"The federal courts," said Harvie Wilkinson III, chief judge of the 4th U.S. Circuit Court of Appeals in Richmond, Va., "have developed sophisticated management techniques that differentiate between cases that are genuinely difficult and challenging and those which are straightforward."
Some judges say the new methods are necessary because many federal appeals judges have fought efforts to increase their number.
They have said the quality and collegiality of the federal bench would be diluted if too many new judges were added. The number of judges on the circuit courts has increased to only 167 from 156 in 1985. ========= As a further note a Louisville based 6th Circuit Judge wrote in 60 Ohio ST LJ 177, 1999 on this topic. 7th Circuit Posner wrote also in "The Federal Courts Challenge and Reform 171 (1996). More nots will follow.