Legislature(2003 - 2004)
05/02/2003 04:10 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
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+ teleconferenced
= bill was previously heard/scheduled
SJR 8 - DIVISION OF 9TH CIRCUIT CT OF APPEALS Number 0307 CHAIR McGUIRE announced that the next order of business would be SENATE JOINT RESOLUTION NO. 8, Relating to the division of the Ninth Circuit Court of Appeals. Number 0334 BRIAN HOVE, Staff to Senator Ralph Seekins, Alaska State Legislature, said on behalf of Senator Seekins, sponsor, that SJR 8 respectfully calls upon Congress to divide the Ninth Circuit Court of Appeals. This action is necessitated for a variety of reasons, he opined, not the least of which includes the vast geographical and philosophical distance separating Alaska from the San Francisco-based court. The Ninth Circuit Court of Appeals adjudicates a caseload far beyond that which is reasonably manageable. In total, there are 11 circuit courts of appeal throughout the country, yet the Ninth Circuit Court of Appeals oversees nearly 20 percent of the U.S. population. In other words, he surmised, the Ninth Circuit Court of Appeals is twice the ideal size. MR. HOVE offered that this size disparity is cited as the principal reason for the relatively high reversal record of the Ninth Circuit Court of Appeals in cases heard by the U.S. Supreme Court. Senate Joint Resolution 8 endorses legislation previously introduced in Congress by Senator Ted Stevens and then-Senator Frank Murkowski. This legislation would reconfigure the Ninth Circuit Court of Appeals to encompass Arizona, California, and Nevada. A new Twelfth Circuit Court of Appeals would take in Alaska, Hawaii, Idaho, Montana, Oregon, and Washington. He noted that similar legislation was recently introduced in Congress by Senator Lisa Murkowski. MR. HOVE said that SJR 8 simply seeks to accomplish two goals: one, correct a considerable imbalance in the caseload of the Ninth Circuit Court of Appeals; and, two, provide the disparate regions falling within the current purview of the Ninth Circuit Court of Appeals with a better-informed panel of judges. These objectives, he opined, are best accomplished by splitting the Ninth Circuit Court of Appeals. REPRESENTATIVE GRUENBERG, noting that language in SJR 8 purports that four justices of the U.S. Supreme Court have endorsed splitting the Ninth Circuit Court of Appeals, asked who those four justices are. MR. HOVE said he could not recall who they were. REPRESENTATIVE OGG remarked that he applauded "this" effort. Number 0487 REPRESENTATIVE GARA said that while he does not have a problem with the resolution, he does not want to say anything [via the resolution] that could be construed as insulting, at all, to the people on the Ninth Circuit Court of Appeals, whom he doesn't know. He said he didn't think anything in the resolution was intended to do that. But, turning attention to page 2, lines 12-14, he indicated that he would like the committee to consider taking out the language that says the Ninth Circuit Court of Appeals produces so many opinions that it is virtually impossible for each judge to thoroughly review each opinion. He pointed out that in no federal circuit court does any judge read all the other judges' opinions. "They just don't, unless the issue comes up," he added; therefore, the resolution is accusing the judges in Ninth Circuit Court of Appeals of [failing to do] something that judges in the other circuit [courts] don't do. MR. HOVE, in response, offered that the situation is exacerbated in the Ninth Circuit Court of Appeals by the caseload. REPRESENTATIVE GARA said he agrees with most of the other points in the resolution and with the point that the Ninth Circuit Court of Appeals has too big a caseload. He added, however, that he didn't feel it is appropriate for him to be criticizing Ninth Circuit Court of Appeals' judges for behavior that is consistent with judges' behavior in the other circuit courts. He reiterated, "They just don't read all of each other's opinions, in any circuit, unless the issue comes up before them." "I don't know why I would slap at them for doing that," he added. REPRESENTATIVE SAMUELS said he didn't view that language as a "slap," but added that perhaps all circuit courts should be looked at regarding that issue. REPRESENTATIVE HOLM offered his belief that had each judge in the Ninth Circuit Court of Appeals read all of the other judges' opinions, perhaps that court would not have such a high rate of reversals in the U.S. Supreme Court. CHAIR McGUIRE said she thinks SJR 8 is good resolution, but added that she is not sure just how many justices will actually be reading it. Number 0671 REPRESENTATIVE GARA noted that although the issue before them is just a resolution and therefore not binding, he did not want to have a resolution say things that he does not want to say. He acknowledged that SJR 8 is intended to send a message that needs to be sent. However, regardless of whether the Ninth Circuit Court of Appeals is doing a good job or a bad job, he said his point in disagreeing with the clause that says it is impossible for each judge in the Ninth Circuit Court of Appeals to read every other judges' opinion is that no judge in any circuit court reads every opinion from that circuit court. Therefore, he remarked, he did not know what the point is of including that language, although he does agree that the Ninth Circuit Court of Appeals has too much work. REPRESENTATIVE GARA then turned attention to page 3, lines 19- 21, and asked the committee to consider taking out that language. He said: I don't know that I know for a fact that the [Ninth Circuit Court of Appeals] was so unfamiliar with this Village of Venetie case that that's what caused them to issue the decision they issued. I assumed they issued the decision they issued because they believed that they were right, and that they analyzed the case law pretty thoroughly. But if you have information that they really didn't do any work on that case or they didn't do enough work on that case, I guess I'd like to hear it, but otherwise I see that as a slap. MR. HOVE said he did not have any information on that issue. He opined, however, that it is not a stretch to suggest that a three-judge panel that might see an Alaskan case only once every three years probably wouldn't be up to speed on everything it needs to know. He remarked that Alaska law is very complex with regard to Native claims issues, and concluded that the language on page 3, lines 19-21, is not out of the realm of possibility. REPRESENTATIVE GARA replied: In reality, in no circuit [court] does any judge see a particular issue from a particular state so often that he/she becomes an expert in that state's issue. CHAIR McGUIRE asked whether the language on page 3, lines 19-21, is in Senator Lisa Murkowski's legislation. MR. HOVE said he could not recall. He mentioned, however, that Senator Lisa Murkowski's legislation proposes to divide the court in a slightly different manner than is suggested in SJR 8. Number 0867 REPRESENTATIVE GARA made a motion to adopt Amendment 1, to delete lines 12-14 from page 2, and delete lines 19-21 from page 3. Number 0895 CHAIR McGUIRE objected for discussion purposes. She suggested that the motion be bifurcated. Number 0937 REPRESENTATIVE GARA withdrew Amendment 1 as previously stated. He then made a motion to adopt a new Amendment 1, to delete lines 19-21 from page 3. CHAIR McGUIRE objected. After noting that she did not necessarily like the language on page 2, line 14, she said that she'd written her "comment" on the Village of Venetie case - referred to on page 3, lines 19-21; had dissected both courts' opinions; and was surprised to see how much larger the Ninth Circuit Court of Appeals' opinion was. REPRESENTATIVE OGG said he has read both [opinions], since American Indian law is a part of his legal background, and is of the belief that "there's a difference of opinion, and how you tip that scale, one way or the other, is such a slight thing, and it's really reasonable for a court [regardless of its makeup] to go one way or the other." He opined that the courts' decisions were well written in both instances, and it is simply that the U.S. Supreme Court went a different way. He surmised that any case dealing with "Alaska Native law" is going to create great turmoil. So, although the statement on page 3, lines 19-21, may be a fair statement, he remarked, it may cast unfair aspersions on the Ninth Circuit Court of Appeals that it does not deserve regarding that particular instance. He said he would support the removal of that language. CHAIR McGUIRE agreed. REPRESENTATIVE SAMUELS offered that the language on page 3, lines 19-21, ties into the language in the two preceding paragraphs; all three paragraphs together make a point regarding familiarity. REPRESENTATIVE HOLM suggested that removing "great" from line 20 on page 3 might allay members concerns about casting aspersions. Number 1160 REPRESENTATIVE OGG [made a motion to amend] Amendment 1, to remove the specific example used on page 3, lines 19-21. He opined that the Ninth Circuit Court of Appeals was not at all unfamiliar with the issues in the Village of Venetie case. REPRESENTATIVE GARA said he considered that to be a friendly amendment to Amendment 1, and would accept it. Number 1259 CHAIR McGUIRE stated that the amendment to Amendment 1 would result in lines 19-21, page 3, reading: "Whereas this unfamiliarity has resulted in decisions which have caused great political turmoil in Alaska;". There being no objection, Amendment 1 was amended. Number 1292 CHAIR McGUIRE asked whether there were any objections to Amendment 1, as amended. There being none, Amendment 1, as amended, was adopted. Number 1294 REPRESENTATIVE SAMUELS moved to report SJR 8, as amended, out of committee with individual recommendations and the accompanying zero fiscal note. Number 1303 REPRESENTATIVE GRUENBERG objected and then withdrew his objection. Number 1329 CHAIR McGUIRE asked whether there were any further objections. There being none, HCS SJR 8(JUD) was reported from the House Judiciary Standing Committee.
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