HJR 13: Urging the United States Congress to divide the United States Court of Appeals for the Ninth Circuit.

00 HOUSE JOINT RESOLUTION NO. 13 01 Urging the United States Congress to divide the United States Court of Appeals for the 02 Ninth Circuit. 03 BE IT RESOLVED BY THE LEGISLATURE OF THE STATE OF ALASKA: 04 WHEREAS the United States Court of Appeals for the Ninth Circuit encompasses the 05 states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and 06 Washington, as well as the Commonwealth of the Northern Mariana Islands and Guam; and 07 WHEREAS, of the 12 regional circuits in operation today, the Ninth Circuit includes 08 one-fifth of the population of the entire United States and is 85 percent larger than the next 09 largest circuit court; and 10 WHEREAS the Ninth Circuit consistently dispenses justice more slowly than any 11 other circuit court in the nation, and had an average case-processing time over the last five 12 years that is a number of months slower than the next slowest circuit court; and 13 WHEREAS a distinguished commission appointed by the United States Congress and 14 chaired by the Honorable Byron R. White, former Associate Justice of the United States 15 Supreme Court, recommended that the Ninth Circuit as an adjudicative entity be divided; and 16 WHEREAS, when that distinguished panel solicited the opinions of the Justices of

01 the United States Supreme Court, four out of the five who responded endorsed splitting the 02 Ninth Circuit; and 03 WHEREAS the size of the Ninth Circuit requires that en banc decisions be heard in 04 panels of 11 judges, less than half of the 29-judge court, resulting in majority decisions of 05 only six judges that are cited to reflect the judgment of the circuit as a whole; and 06 WHEREAS, in order for a court to produce a thorough and coherent body of law, the 07 judges on that court must each be familiar with all the opinions published by that court; and 08 WHEREAS the Ninth Circuit produced 557 published opinions and 5,994 09 unpublished opinions in 2015 alone and regularly produces a quantity of written opinions that 10 make it impossible for each judge to be sufficiently familiar with each opinion; and 11 WHEREAS the White Commission said "[t]he volume of opinions produced by the 12 Ninth Circuit's Court of Appeals and the judges' overall workload combine to make it 13 impossible for all the court's judges to read all the court's published opinions when they are 14 issued"; and 15 WHEREAS this inability to read the corpus of published law in the circuit makes the 16 production of consistent, coherent decisions impractical and results in frequent errors by the 17 court, as demonstrated by its consistently having a higher-than-average rate of reversal by the 18 United States Supreme Court; and 19 WHEREAS a statistical survey conducted by the Honorable Richard A. Posner, a 20 judge on the United States Court of Appeals for the Seventh Circuit, demonstrated a 21 statistically significant correlation between an increase in the number of judgeships on a court 22 and the rate at which that court was reversed on review; and 23 WHEREAS, in 2015, the most recent year for which data is available, the Ninth 24 Circuit had 22.5 percent of all new appeals nationally, a workload considerably higher than 25 that of any other circuit court; and 26 WHEREAS cases involving crucial federal legislation affecting Alaska exclusively, 27 such as the Alaska Native Claims Settlement Act and the Alaska National Interest Lands 28 Conservation Act, require great familiarity with the legislation to properly adjudicate because 29 of the great complexity of the legislation; and 30 WHEREAS a Ninth Circuit judge cannot attain the necessary familiarity with federal 31 legislation affecting Alaska because a Ninth Circuit judge may only sit on a panel in Alaska

01 once every 10 years, as a result of the extraordinary size of the court; and 02 WHEREAS this unfamiliarity has resulted in decisions that have deprived Alaskans 03 of their rights under the United States Constitution and federal law, as demonstrated in the 04 recent U.S. Supreme Court Case Sturgeon v. Frost, in which the U.S. Supreme Court, in a 05 unanimous decision, rejected the decision of the Ninth Circuit; and 06 WHEREAS such cases often involve lengthy and expensive litigation, and even with 07 the recent victory at the Supreme Court, Sturgeon v. Frost remains locked in the court system, 08 now 10 years since the incident that gave rise to it; and 09 WHEREAS, in the current fiscal environment, the state lacks sufficient legal 10 resources to successfully appeal every error made by the Ninth Circuit; and 11 WHEREAS the issue of splitting the Ninth Circuit has arisen repeatedly, consuming 12 vital judicial and legislative resources; a drain on judges' and legislators' time that will 13 continue until the Ninth Circuit is split; and 14 WHEREAS Alaska Senators Lisa Murkowski and Dan Sullivan have each sponsored 15 or cosponsored current legislation in the form of S. 295, Circuit Court of Appeals 16 Restructuring and Modernization Act, and S. 296, Federal Courts of Appeals Modernization 17 Act, endorsing a division of the current Ninth Circuit into two circuits, the Ninth and the 18 Twelfth, with the resulting Twelfth Circuit encompassing the states of Alaska, Arizona, 19 Idaho, Montana, Nevada, Oregon, and Washington, which would be a welcome solution to 20 the current problem and beneficial to Alaska; and 21 WHEREAS, even with this division, the newly created Twelfth Circuit would still 22 encompass as many states as the most numerous of any circuit court; and 23 WHEREAS, when the former Eighth Circuit grew too large, the United States 24 Congress recognized the problems caused by its size and successfully split the court into the 25 Eighth and Tenth Circuits; and 26 WHEREAS, when the Fifth Circuit grew too large, the United States Congress 27 recognized the problems caused by its size and, in 1981, successfully split the court into the 28 Fifth and Eleventh Circuits; 29 BE IT RESOLVED that the Alaska State Legislature respectfully requests that the 30 United States Congress divide the United States Court of Appeals for the Ninth Circuit into 31 two circuit courts in order to resolve the problems caused by its current size.

01 COPIES of this resolution shall be sent to the Honorable Michael R. Pence, Vice 02 President of the United States and President of the U.S. Senate; the Honorable Orrin Hatch, 03 President pro tempore of the U.S. Senate; the Honorable Paul D. Ryan, Speaker of the U.S. 04 House of Representatives; the Honorable Mitch McConnell, Majority Leader of the U.S. 05 Senate; the Honorable Kevin McCarthy, Majority Leader of the U.S. House of 06 Representatives; the Honorable Charles E. Schumer, Minority Leader of the U.S. Senate; the 07 Honorable Nancy Pelosi, Minority Leader of the U.S. House of Representatives; the 08 Honorable Chuck Grassley, Chair of the U.S. Senate Committee on the Judiciary; the 09 Honorable Bob Goodlatte, Chair of the U.S. House Committee on the Judiciary; and the 10 Honorable Lisa Murkowski and the Honorable Dan Sullivan, U.S. Senators, and the 11 Honorable Don Young, U.S. Representative, members of the Alaska delegation in Congress.