Legislature(1995 - 1996)
01/30/1996 08:00 AM House STA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HJR 52 - CIRCUIT COURT OF APPEALS FOR 12TH CIRCUIT The first order of business to come before the House State Affairs Committee was HJR 52. CHAIR JEANNETTE JAMES called on Representative Brian Porter, sponsor of HJR 52. Number 0088 REPRESENTATIVE BRIAN PORTER said HJR 52 was a resolution that would put Alaska on record with the United States Congress which supports splitting the Court of Appeals for the Ninth Circuit into two circuits. He referred the committee members to the map in the bill file titled "The Thirteen Federal Judicial Circuits." He explained at the federal level the district court was akin to Alaska's superior court. He also explained there were two levels of appeal in the federal system - the circuit court and the Supreme Court. He further explained the circuit courts were established decades ago based on population. The population had increased, and as far back as 1973 a federal commission recommended splitting the Court of Appeals for the Fifth and Ninth Circuits. Consequently, the Court of Appeals for the Fifth Circuit was split creating the Court of Appeals for the Eleventh Circuit. The commission recommended administrative changes for the Court of Appeals for the Ninth Circuit which he alleged were not working. He further explained in the Court of Appeals for the Ninth Circuit there were 27 judges, 17 judges in the Court of Appeals for the Fifth Circuit, and as few as 6 judges in the Court of Appeals for the First Circuit. The judges in the Court of Appeals for the Ninth Circuit were divided into panels, he explained, hearing cases by specialty. However, this created inconsistent decisions on the same points of law. Consequently, it was very expensive and difficult to practice law in Alaska. The five states that comprised the proposed Court of Appeals for the Twelfth Circuit were Alaska, Washington, Oregon, Idaho, and Montana. In conclusion he announced all five attorneys general from the states supported the notion. Number 0470 CHAIR JAMES announced the presence of Representatives Ogan and Robinson. Number 0488 REPRESENTATIVE CAREN ROBINSON asked the status of the corresponding legislation in Congress. Number 0509 REPRESENTATIVE PORTER said HJR 52 supported S.956. S.956 divided the Court of Appeals for the Ninth Circuit creating the Court of Appeals for the Twelfth Circuit. He stated, California, Arizona, Hawaii, Nevada, the Mariana Islands, and Guam would remain in the Court of Appeals for the Ninth Circuit. Number 0562 REPRESENTATIVE ROBINSON asked how the circuit judges would be divided and if the division would be dictated by legislation. Number 0576 REPRESENTATIVE PORTER responded it would be decided based on case load. He stated it was best if they split the court for groups of judges instead of all of them. He cited the 27 judges in the Court of Appeals for the Ninth Circuit lived in the Los Angeles area. He alluded no matter where the judges originally came from, after living in Los Angeles they became "Californians." He further asserted it was affecting the laws. Number 0635 REPRESENTATIVE ROBINSON asked if the judges would reside in one of the states that comprised the proposed Court of Appeals for the Twelfth Circuit. Number 0640 REPRESENTATIVE PORTER replied the state of Washington would probably be the seat for the proposed Court of Appeals for the Twelfth Circuit was a lot closer than California. REPRESENTATIVE ROBINSON alleged judges residing in Washington would have a better understanding of Alaska. Number 0673 REPRESENTATIVE ED WILLIS asked if the judges had to live in a particular district to be appointed. Number 0684 REPRESENTATIVE PORTER replied they looked at applicants from the general area and circuit. Number 0706 REPRESENTATIVE WILLIS asked if an Alaskan had ever been appointed to a seat in the Court of Appeals for the Ninth Circuit. Number 0708 REPRESENTATIVE PORTER said he did not know, but Charlie Cole, Attorney at Law, would be able to answer the question. He also announced Jim Baldwin, Assistant Attorney General, was here in place of Bruce Botelho, Attorney General to testify on HJR 52. Number 0744 JIM BALDWIN, Assistant Attorney General, Government Affairs Section, Civil Division, Government Affairs Section, Department of Law, said the Attorney General wanted to be here himself but was detained in Seattle. He stated the Department of Law supported HJR 52. Mr. Baldwin alleged a locally oriented court of appeals would benefit Alaska. He said it was important the appellate courts reflected the socioeconomic attitudes of the different regions. The attitudes, he stated, shaped the development of laws. He further said the attention of the Court of Appeals for the Ninth Circuit focused on the more populace western states and needed to be broken into a smaller unit to reflect the case load. He cited 22 percent of the cases now pending before the Court of Appeals for the Ninth Circuit were from Alaska, California, Washington, Oregon and Montana. In conclusion, he reiterated, the department supported HJR 52 and would support the committee in any way possible. Number 0935 CHARLES E. COLE, Attorney at Law, Law Offices of Charles E. Cole, said he supported the geographic dismantle proposed in HJR 52 of the Court of Appeals for the Ninth Circuit. He referred to his written statement to the U.S. Senate Judiciary Committee and asked it be part of the record. He further stated the Court of Appeals for the Ninth Circuit was the largest district and expanded from Tucson to Point Barrow. He asserted there was no particular reason why Congress could not split the Court of Appeals for the Ninth Circuit based on geography alone as it had done so before in the past. He further stated the decisions from California, for example, dealing with Alaska and the northwest were interpreted in a bizarre fashion. He alleged there was not a subjective "pulse" of the various considerations of the statutes. He cited the Kenaitze panel referenced The Milepost to define the term "rural." He said it was defined as, "the vast areas of the U.S. where agriculture and ranching predominate." He stated this definition did not reflect to Alaska except maybe for the area near Palmer. He also cited the Totemoff decision whereby the Alaska court reached the opposite opinion. Mr. Cole said he was not criticizing the results of the decisions, but rather the judicial craftsmanship. In conclusion, he stated, the judges in the Court of Appeals for the Ninth Circuit lacked a collegiality. He also mentioned Alaskan Robert Boochever who served on the Court of Appeals for the Ninth Circuit did not support HJR 52. Number 1370 REPRESENTATIVE JOE GREEN asked how many cases resided and were resolved at the court of appeals level, or was it just an avenue to the Supreme Court. Number 1390 MR. COLE replied it was the final repository for most decisions and rarely did cases go to the Supreme Court. He, therefore, alleged the final authority resided with the Court of Appeals for the Ninth Circuit. Number 1440 REPRESENTATIVE IVAN IVAN referred to previous testimony regarding the definition of "rural" by the Court of Appeals for the Ninth Circuit, and asked what rural Native Alaskans could expect if HJR 52 was passed. Number 1488 MR. COLE replied the rural constituencies could expect decisions emanated from a greater familiarity of issues such as subsistence compared to decisions emanated from judges residing in Los Angeles. Number 1560 REPRESENTATIVE ROBINSON asked Mr. Cole if he knew where S.956 was in the legislative process. She also asked if there was a way to be sure judges appointed to the proposed Court of Appeals for the Twelfth Circuit would understand Alaska. Number 1580 MR. COLE replied he did not know where S.956 was in the process. He also suggest Arizona should shift to the same circuit district as California. Mr. Cole further replied the appointment of the judges were left to the Alaskan Congressional delegates as they were appointed at the federal level. Number 1640 REPRESENTATIVE PORTER stated S.956 just passed out of the U.S. Senate Judiciary Committee. He further announced the population in the Court of Appeals for the Ninth Circuit was 45 million, and suggested by population alone the argument was strong enough to create a new one. Number 1680 REPRESENTATIVE GREEN moved that HJR 52 move from the committee with zero fiscal note and individual recommendations. Hearing no objection, HJR 52 was moved out of the House State Affairs Committee.
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