Legislature(1999 - 2000)
03/24/1999 01:06 PM House JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HJR 29 - ENDORSE FED. CT. OF APP. FOR 12TH CIRCUIT CHAIRMAN KOTT announced the first order of business is HJR 29, Relating to the division of the Ninth Circuit Court of Appeals. CHAIRMAN KOTT called on Cory Winchell to explain the resolution. Number 0140 CORY WINCHELL, Administrative Assistant to Representative Pete Kott, Alaska State Legislature, stated the joint resolution proposes Senator Murkowski's bill, S.253. That bill would split the Ninth Circuit Court of Appeals into three divisions: the Northern Division, the Middle Division and the Southern Division. They would be comprised of the following: Northern Division - Alaska, Idaho, Montana, Oregon, Eastern Washington and Western Washington; Middle Division - Eastern California, Northern California, Guam, Hawaii, Nevada and the Northern Mariana Islands; and Southern Division - Arizona, Central California and Southern California. MR. WINCHELL further noted that district judges would appeal their cases to their respective divisions. The judges would sit in panels, and appeals from the divisions would go to the Circuit Division. The intent is to make it more representative or indicative of some of the other areas in the Ninth Circuit Court of Appeals. There is a powerhouse in Southern California of legal opinions that contradict some of the tenor in other parts of the circuit. In addition, 82 percent of the appeals to the U.S. Supreme Court from the Ninth Circuit Court of Appeals are overturned. That is well known in jurisprudence. Number 0352 CHAIRMAN KOTT asked Mr. Winchell whether the district courts would appeal their cases to their particular division. MR. WINCHELL replied yes. CHAIRMAN KOTT asked Mr. Winchell whether the judges would sit in panels of three within their division, of which two could come from that particular division. MR. WINCHELL replied yes. He read from S.253, "(3) ASSIGNMENT OF JUDGES - Each regional division shall include from 7 to 11 judges of the court of appeals in active status. A majority of the judges assigned to each division shall reside within the judicial districts that are within the division's jurisdiction as specified in paragraph (2)...". Number 0435 CHAIRMAN KOTT asked Mr. Winchell whether the Circuit Division consists of 13 judges - 1 chief judge and 12 circuit judges - of which equal numbers would come from the various divisions. MR. WINCHELL replied yes. Number 0464 REPRESENTATIVE GREEN asked Mr. Winchell whether a favorable ruling that has been appealed to the Northern Division would have to go back to the full Ninth Circuit Court of Appeals. MR. WINCHELL replied yes. The district court in Alaska would appeal to the Northern Division, and from there appeal to the Circuit Division. It would only appeal those issues that are divided between the three divisions and any others that are necessary, such as constitutional issues that need to go to the appeal level quickly. Number 0556 REPRESENTATIVE GREEN asked Mr. Winchell whether there would be more judges in the three divisions than the total judges in the Circuit Division. MR. WINCHELL replied yes. Each regional division would include from 7 to 11 judges of the court of appeals, and there would be a total of 13 judges in the Circuit Division. Number 0602 REPRESENTATIVE GREEN asked what has Alaska gained with an appeal to the Circuit Division other than one more hearing. MR. WINCHELL replied the Circuit Division would be comprised of judges in equal amounts from each division. The decision making power would be fractured. He doesn't know whether they would be all of the same mind, however. There would be friction if the decision of the majority runs counter to the Supreme Court. In addition, there would be a judicial council to overview some of the decisions made. That council would recommend changes to Congress and to some of the committees as time goes on. There would be a close eye on the Ninth Circuit Court of Appeals. Number 0688 CHAIRMAN KOTT asked Mr. Winchell whether or not each decision made within the divisions would be automatically forwarded to the Circuit Division. MR. WINCHELL replied he's not exactly sure. There shouldn't be an appeal to the Circuit Division, if all three divisions are in line, unless it's right to turn the law over again. Number 0744 CHAIRMAN KOTT stated an appeal from a district court to the division wouldn't end up in the Circuit Division, unless there is disparity among the various divisions or other extenuating circumstances. MR. WINCHELL replied ideally yes. It creates a new strata, a new appeals system, within the Ninth Circuit Court of Appeals. Number 0778 REPRESENTATIVE CROFT stated the en banc proceedings do not apply to the court of appeals as a whole, but only to the divisions. The division would, therefore, act as a circuit. If three judges from the Northern Division rule against or for Alaska, the procedure would be to ask for that whole division to hear it, not the whole circuit. He asked where is the part that authorizes the entire circuit to review differences in en banc proceedings. MR. WINCHELL replied the Circuit Division is empowered to answer differences among the three divisions. It oversees contending points of law or extenuating circumstances, such as constitutional issues. Number 0875 REPRESENTATIVE CROFT stated the Northern Division would hear an issue such as ANILCA (Alaska National Interest Lands Conservation Act), and if there is an en banc it would be heard within that division. It is very unlikely that another portion of the circuit would rule on ANILCA since it applies to only Alaska. That is an advantage to Alaska. Only general issues would it go to the next level. It is an efficiency because the Northern Division would almost always be the last word before the U.S. Supreme Court. MR. WINCHELL stated it does regionalize some issues on en ban proceedings. REPRESENTATIVE CROFT said it regionalizes everything, but the broad, constitutional ideas. It is a significant change. Number 0975 CHAIRMAN KOTT stated Representative Croft is right on track. Alaska would take its cases to the Northern Division and unless there were extenuating circumstances the Circuit Division would not even take them up. REPRESENTATIVE CROFT noted the last recourse is the U.S. Supreme Court, not the Ninth Circuit Court of Appeals as a whole. It divides up California which has always been the rub in some of these. MR. WINCHELL explained there were several bills on this issue. Some wanted to split the circuit and start a new one, but that was too contentious. REPRESENTATIVE CROFT asked Mr. Winchell whether the divisions are based on population. MR. WINCHELL replied they are based on districts. He's not entirely sure, however. Number 1072 CHAIRMAN KOTT asked Mr. Winchell, as it presently stands, whether there are 28 judges in the Ninth Circuit Court of Appeals. MR. WINCHELL replied yes. CHAIRMAN KOTT asked Mr. Winchell whether it is true that 18 of those 28 judges come from California and only 1 comes from Alaska. MR. WINCHELL replied yes. There is a disparity. CHAIRMAN KOTT asked Mr. Winchell whether it is true that 82 percent of the Ninth Circuit Court of Appeals' decisions were overturned by the U.S. Supreme Court during the 1994-1995 session. MR. WINCHELL replied yes. It is the most overturned circuit within the United States Court of Appeals. Number 1137 CHAIRMAN KOTT stated it is his understanding that the Ninth Circuit Court of Appeals is overwhelmed compared to the other circuits. It has 2,000 more cases on its docket. MR. WINCHELL said it is very cumbersome to bring an appeal to the Ninth Circuit Court of Appeals. Number 1189 JOANNE GRACE, Assistant Attorney General, Natural Resources Section, Civil Division, Department of Law, testified via teleconference from Anchorage. The Administration strongly supports S.253. At any given time, the Department of Law has several cases pending in the circuit. On average, the Department of Law has been a party or amicus from 5 to 10 cases that the court decides every year. The department believes that the court has grown too large in terms of judges and cases that it handles, and that it should be split into these divisions. The Ninth Circuit Court of Appeals is the largest in the circuit in terms of territory and population. It spans nine states and two territories. It serves a population of 45 million. It covers a land area larger in size than Western Europe. It serves 15 million more people than the next largest circuit and about 20 million more than the average of the other courts of appeal. Since 1973, its annual case load has grown from 2,300 to 8,000. It is too large to efficiently and effortlessly resolve cases in a timely manner. This situation will only grow worse in the future. The population that the court serves is expected to increase to 63 million by the year 2010, and adding judges to serve the increase would only exacerbate the problems already caused by its size. With 28 judges and 3 serving on any given panel, over 3,276 combinations of panels are possible, but in reality since the court uses visiting or senior judges the number of combinations is much higher and will increase with the addition of each new judge. This problem inevitably contributes to conflicting opinions, reduced communication among judges, and inconsistency with court decisions. The problems are magnified for the state who's dwarfed by the heavily populated states within the circuit. Alaskan cases constitute only 2 percent of the court's case load. Only 12 circuit judges were assigned to all of the Alaskan cases published in 1997. Given the relatively few Alaskan cases compared to the whole, Alaskan litigants are far less likely to draw panels of judges who are familiar with the state. This is aggravated by the fact that Alaskan cases involve complex federal statutes that the judges don't encounter in the other 98 percent of the case loads. She cited ANCSA (Alaska Native Claims Settlement Act) and ANILCA as examples. The issues that they have generated have varied tremendously from the interpretation of revenue sharing to the question of Indian country. Regardless of the well intentions of judges, their opinions reveal a lack of understanding of the people and places and can seem offensive to the people affected. The present wait for an oral argument is one year after a briefing is complete. This delay is even longer for Alaska and according to the court clerk some are held longer in order to schedule a hearing during the summer. She has a case pending before the court that was docketed in October of 1996. There was an oral argument in December of 1997, and there still hasn't been a decision rendered. The judges readily admit that they don't read all the decisions that other judges issue because there are too many. In summary, this type of legislation is sorely needed and would greatly benefit Alaska. The Governor has suggested a few changes to Senator Murkowski's bill. The state would prefer that the Circuit Division was eliminated. It is not helpful to Alaska because it would still allow decisions to be made by a majority of judges who are not from the Northern Division. The state would also prefer that all the judges live within the division that they are serving. Number 1680 CHAIRMAN KOTT stated that he could agree with both recommendations. He asked Ms. Grace to forward her comments in writing to the committee. Number 1692 REPRESENTATIVE CROFT asked Ms. Grace whether taking out the Circuit Division would allow the three divisions to operate separately. MS. GRACE replied the state would prefer a separate circuit. The state would prefer that the Northern Division only hears Alaskan cases. The state isn't concerned about the administration of the three divisions as one circuit, however. Number 1737 REPRESENTATIVE CROFT stated legally they could be three separate circuits, but administratively they could keep their offices in one place to keep track of staff, for example. MS. GRACE stated that is the way it is set up now, except for the Circuit Division. She thinks it was a compromise to try to deal with the concerns of those who didn't want to split the circuit and the concerns of the Northern states who felt that the circuit was not serving them. CHAIRMAN KOTT closed the meeting to public testimony. Number 1800 REPRESENTATIVE CROFT stated the two changes mentioned by Ms. Grace are positive. It would make the circuit a harder, separate division. It would also remove that last step. CHAIRMAN KOTT stated that requiring three out of three judges to reside in their particular division would be even better. Number 1980 REPRESENTATIVE CROFT referred to page 2, lines 14-16, "WHEREAS members of the Court of Appeals for the Ninth Circuit have shown a surprising lack of understanding of Alaska's people and geography that has resulted in decisions that have often caused the people of Alaska unnecessary hardship;". It is more of an attack on individual decisions. It is correct the way it is written, but it might get the state into a fight that isn't necessary. He suggested eliminating the phrase, "that has resulted in decisions that have often caused the people of Alaska unnecessary hardship". CHAIRMAN KOTT concurs with the suggestion. It is the harshest "whereas" clause in the joint resolution. He entertained the suggestion as a friendly amendment. There being no objection, it was so adopted. CHAIRMAN KOTT indicated that he would not object to the suggestions made by the attorney general's office. REPRESENTATIVE JAMES said they are good ideas. Number 2039 REPRESENTATIVE MURKOWSKI asked Ms. Grace whether there has been any feedback from Senator Murkowski's office regarding the suggested changes. MS. GRACE replied she doesn't know. If there was, it didn't come down to her. REPRESENTATIVE MURKOWSKI asked Mr. Grace when the suggestions were sent to Senator Murkowski's office. MS. GRACE replied at about the same time that he introduced the bill. Number 2090 REPRESENTATIVE MURKOWSKI said she is wondering whether he had those suggestions when the bill was introduced and whether he chose not to incorporate them for whatever reason. She is curious about the ensuing couple of months and whether there has been anything done with them. MS. GRACE said it is her understanding that Senator Murkowski did not have the suggestions when he introduced the bill, and it was thought that they would be considered in committee. REPRESENTATIVE CROFT suggested placing the suggestions in another "be it resolved" section of the joint resolution. CHAIRMAN KOTT asked whether there is any objection. There being none, it was so adopted. The language will be left up to the bill drafter. At the same time, he will have his staff contact Senator Murkowski's office to determine whether they will jeopardize his bargaining power. If they do, they will be removed at a later date. Number 2206 REPRESENTATIVE CROFT made a motion to move HJR 29, as amended, from the committee with individual recommendations and the attached fiscal note(s). There being no objection, CSHJR 29(JUD) was so moved from the House Judiciary Standing Committee.
| Document Name | Date/Time | Subjects |
|---|