02/05/1996 01:03 PM House JUD

 HJR 52 - CIRCUIT COURT OF APPEALS FOR 12TH CIRCUIT                           
                                                                              
 Number 768                                                                    
                                                                               
 CHAIRMAN PORTER introduced HJR 52 as sponsor.  This resolution                
 would be sent to the U.S. Congress in support of legislation there            
 which seeks to divide the current 9th Court of Appeals into two               
 courts.  The federal level 9th Court of Appeals has jurisdiction              
 over Alaska.  Chairman Porter added that the 9th circuit is one of            
 11 circuits and it was established in 1911.  It is comprised of               
 virtually the entire western part of the United States and it has             
 become unwieldy in size.  The ability to run a consistent decision            
 making body of a court of appeals has become compromised.                     
                                                                               
 CHAIRMAN PORTER continued to say that there have been concerns                
 about the 9th Circuit's size and considerations for dividing it               
 into two have been around for a while.  In 1970 there was a federal           
 study done on the 9th and 5th circuit.  The 5th circuit, as a                 
 result of this study, was divided and the 11th Circuit Court of               
 Appeals was established.  The 9th circuit was kept intact, but                
 instead of all of the judges hearing the respective cases, groups             
 of judges within the 9th circuit hear them instead, which results             
 in inconsistent decisions being handed down.  This makes it                   
 difficult and expensive for those states which it serves to do                
 business, let alone to interpret what the law really says.                    
                                                                               
 CHAIRMAN PORTER added that the seat of the 9th Circuit Court is in            
 California.  The administrator lives in San Francisco, most of the            
 judges in Los Angeles.  Since these judgeships are lifetime                   
 appointments, they spend a lot of time in these areas.  He offered            
 an anecdote as an illustration about this alienation from Alaska.             
 In recent discussions in the 9th Circuit regarding many Alaska                
 cases now before the court, in trying to define rural as applied to           
 Alaska, they sought help to define it by referring to the Milepost            
 Magazine.  They proclaimed that everyone knows that a rural                   
 district is one where there is not a lot of population and it's got           
 a lot of agriculture and ranches.  This is the extent to which how            
 out of touch the 9th Circuit is with the state of Alaska.                     
                                                                               
 CHAIRMAN PORTER summed up by saying that Alaska, Washington,                  
 Oregon, Idaho and Montana would become the 12th Circuit Court of              
 Appeals.                                                                      
                                                                               
 Number 1045                                                                   
                                                                               
 BRUCE BOTELHO, Attorney General, Department of Law, stated that the           
 administration fully supports HJR 52.  He said that there were two            
 problems with the existing 9th Circuit Court from their                       
 perspective.  First, the 9th circuit is the largest in the country            
 and secondly, it is the most back logged circuit in the country,              
 since it is dominated by California.  There are currently 28 judges           
 on the court, 19 of them are California based judges.  This is                
 pertinent, not necessarily because Alaska has anything directly               
 against California, but it is a recognition that it should be a               
 reasonable expectation that judges should share common experiences            
 with the people over whom they are passing judgment.  Mr. Botelho             
 cited the case used by Chairman Porter concerning the definition of           
 rural in the Kenaitze case.                                                   
                                                                               
 MR. BOTELHO went into greater detail regarding this case.  He                 
 referenced part of the language to help illustrate this problem.              
 The state of Alaska in adopting regulations on the concept of rural           
 in the context of ANILCA, everyone understood rural to mean bush              
 Alaska.  In implementing this interpretation the Alaska Board of              
 Fish and Game interpreted rural to exclude areas where the                    
 predominate economic characteristic was a non-cash economy.  The              
 consequence of this was that the Kenai peninsula was ruled not to             
 be a rural area.  This matter was then taken to court.  U.S.                  
 District Court being very familiar with Alaska and also familiar              
 with the history of ANILCA ruled in the state's favor.  They felt             
 this was a reasonable interpretation, hence an appeal was                     
 undertaken to the 9th Circuit Court.                                          
                                                                               
 MR. BOTELHO quoted the actual language from part of the 9th Circuit           
 Court's opinion in the context of Alaska being unusual if not,                
 exotic.  "The state's definition would exclude practically all                
 areas of the United States that we think of as rural, including               
 virtually the entirety of such farming and ranching states as Iowa            
 and Wyoming.  The term rural is not difficult to understand.  It is           
 not a term of art.  It is a standard word in the English language             
 commonly understood to refer to areas of the country that are                 
 sparsely populated, where the economy centers on agriculture or               
 ranching."                                                                    
                                                                               
 MR. BOTELHO stated again that the panel was constituted primarily             
 of California judges, was a three member panel, which rendered this           
 opinion.  In fact most of the panels are constituted of judges from           
 California and who are removed from the rural experience, certainly           
 the Alaskan and Northwestern experience.   This is one problem.               
 The second problem is simply the delay.  He noted that one tends to           
 focus and put priority on those issues they are most familiar with            
 and those closest to home.  Those Alaskan cases which are of utter            
 importance don't appear to have the same type of priority as those            
 arising out of the chief contributor to the court's docket,                   
 California.                                                                   
                                                                               
 MR. BOTELHO thought the best case in point was the Katie John case.           
 All of us have an interest in having a case decided quickly, no               
 matter what side someone is on.  Even after expedited consideration           
 was granted in this case, it took 13 months after everything the              
 lawyers could have done, had been done and this information had               
 been submitted for a decision resolution.  It took another nine               
 months for the panel to make a clarification on reconsideration.              
 The 9th Circuit has been notoriously the circuit with the most                
 delay.  The focus of the federal court has been to figure out                 
 innovative ways to expedite consideration in the 9th circuit.  They           
 have made some improvements so that the average case supposedly               
 takes 15 months after it's been submitted.  It is still woefully              
 slower than the other circuits.  As a sovereign state Alaska has              
 the right to have it's issues decided much more expeditiously than            
 the current makeup which of the 9th circuit would permit.                     
                                                                               
 MR. BOTELHO stated that there had been some developments which                
 suggests modifications to the resolution.  When the bill reached              
 the Judiciary Committee in the U.S. Senate there were other states            
 who were enthused about getting out of the 9th circuit.  On                   
 December 7, 1995 on the floor, both Arizona and Nevada requested to           
 abandon the 9th circuit as well.  As part of the price to get this            
 bill out of committee, Phoenix had been identified as the new                 
 center for this new 12th circuit.  He suggested that the resolution           
 before the Alaska Judiciary be modified to express Alaska's desire            
 that the headquarters be located in the Northwest as was originally           
 contemplated.                                                                 
                                                                               
 MR. BOTELHO continued that on Thursday of this last week, HR 2935             
 was introduced by Congressman Don Young as a companion bill                   
 promoting the 12th circuit and it's in the original form.  This               
 would constitute the five northwestern states which were originally           
 intended to be part of the Senate 956 and would allow that the 9th            
 Circuit Court be headquartered in Portland.  He stated, "thus again           
 events have overtaken the resolution not in concept, but in terms             
 of very specific events which should be tailored to modifying HJR
."                                                                          
                                                                               
 MR. BOTELHO stated that he had made contact with his colleges in              
 the other northwestern states and while half of them are Republican           
 and the other Democrat, they unanimously supported the division of            
 the circuit.  This is not a partisan issue.                                   
                                                                               
 Number 1493                                                                   
                                                                               
 REPRESENTATIVE CON BUNDE asked what steps these states have taken             
 to pursue the establishment of this 12th Circuit Court.                       
                                                                               
 MR. BOTELHO answered that virtually every state has signed on to              
 the senate bill, but in terms of the house bill he hadn't yet                 
 reviewed it to see who else has signed on.  Senator Gordon of                 
 Washington state is the primary sponsor of S956 and both of                   
 Alaska's senator have signed on, as have at least one senator of              
 the other states involved.                                                    
                                                                               
 Number 1532                                                                   
                                                                               
 REPRESENTATIVE CYNTHIA TOOHEY asked if the bill language for HJR 52           
 would be rewritten to just include northwestern states.                       
                                                                               
 CHAIRMAN PORTER said that he would ask the committee to                       
 conceptually change this bill now and have the bill drafter put in            
 this conceptual amendment before it is moved out of committee.                
                                                                               
 Number 1570                                                                   
                                                                               
 REPRESENTATIVE BETTYE DAVIS made a motion to conceptually change              
 HJR 52 as outlined, which would allow that the headquarters of 12th           
 circuit be in the Pacific Northwest and it would state that the               
 Judiciary Committee supports the federal companion bill HR 2935 as            
 proposed.  Hearing no objection HJR 52 was so amended.                        
                                                                               
 Number 1697                                                                   
                                                                               
 REPRESENTATIVE AL VEZEY made a motion to move HJR 52 from the                 
 Judiciary Committee with individual recommendations as amended.               
 Hearing no objection it was so moved.