Legislature(1997 - 1998)
04/09/1997 01:10 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HJR 30 - ENDORSE FED. CT. OF APP. FOR 12TH CIRCUIT Number 089 CHAIRMAN JOE GREEN announced that members would first consider HJR 30, relating to the creation of a new United States Court of Appeals for the Twelfth Circuit. JEFF LOGAN, Legislative Assistant to Representative Joe Green, advised members that Representative Green, as the Chairman of the House Judiciary Committee, had introduced HJR 30. He pointed out that in member's bill packets they could find a letter dated September 8, 1995 from Governor Tony Knowles, to U.S. Senator Orrin Hatch, Chair of the U.S. Senate Committee on the Judiciary. Mr. Logan advised members that he had contacted the governor's legislative office and was assured that the governor was still in favor of the creation of a new Twelfth Circuit United States Court of Appeals, even though the letter was somewhat dated. MR. LOGAN stated that additionally, members should have a letter dated September 12, 1995, from Alaska State Attorney General, Bruce Botelho. Mr. Logan spoke with Attorney General Botelho the previous evening who had assured him that HJR 30 embodied his position on the creation of the new Twelfth Circuit, and the other five attorneys general, of the five states that would be included in the Twelfth Circuit, were also still supportive of the creation of the Twelfth Circuit U.S. Court of Appeals. Mr. Logan pointed out that would explain why the old letters had been included in member's bill packets. MR. LOGAN directed members' attention to another document in their bill packets entitled A BILL, which was a draft of S. 431, the bill introduced by Senators Murkowski and Stevens and four other Senators from western states. He noted that the final version was not available in the Juneau Congressional Office; however, the language in the document members had access to was the language that the HJR spoke to. Mr. Logan advised members that S. 431 had been referred to, and was still in the U.S. Senate Committee on the Judiciary. MR. LOGAN pointed out that the U.S. Senate Committee on the Judiciary believed that HJR 30 deserved the support of the House Judiciary Committee because the Ninth Circuit Court of Appeals was too large to meet Alaska's needs, and was too backlogged to address them in a timely fashion. MR. LOGAN advised members that the first "WHEREAS" of HJR 30 stated that Alaska was within jurisdiction of the Ninth Circuit; the second "WHEREAS" provided the names of the states and federal territories included in the Ninth Circuit Court of Appeals; the third "WHEREAS" provided the names of U.S. Senators who had introduced S. 431; and the fourth "WHEREAS" stipulated that Portland, Oregon, and Seattle, Washington, would be the headquarters for the new Twelfth Circuit Court of Appeals. Mr. Logan pointed out that that language had been included in the Resolution because two years ago, with respect to the old legislation that Senator Hatch introduced, two additional states at that time agreed that they would like to be included in the new Twelfth Circuit Court of Appeals, and in exchange for their support of the bill, they wanted Phoenix, Arizona to be the headquarters for the new Twelfth Circuit, so that was the reason why HJR 30 specified that headquarters would be located in Portland, Oregon, and Seattle, Washington. MR. LOGAN referred to page 2 of HJR 30 which again reflected that there would be five states within the new Twelfth Circuit Court of Appeals. The Resolution pointed out that the Ninth Circuit Court of Appeals was California heavy, of which 19 of the 28 Judges within the Ninth Circuit had duty stations in the state of California, with most of them living in San Francisco and Los Angeles, California. Number 385 REPRESENTATIVE ERIC CROFT advised members that he had clerked for a federal judge in the U.S. District Court of Alaska, and they had a running debate on the issue, although it always seemed like a good idea to him. Representative Croft pointed out that the concern of that federal judge was that to some extent, Alaska was a medium, or small size fish in a big pond. He believed that Alaska was part of a powerful circuit, and through that power Alaska could assure itself more of a voice. Representative Croft noted that it would not be fair to Judge Fitzgerald to not ask for the committee's response on his views. MR. LOGAN stated that what Representative Croft had just brought attention to was the exact reason why HJR 30 had been introduced, and why Senators' Stevens and Murkowski had introduced the bill in Congress. He stated that Alaska was a small fish in a big pond, and because of that the state did not get the necessary attention. REPRESENTATIVE CROFT expressed the possibility that if the state moved to a smaller pond, the pond would then not get noticed. He stated that the Ninth Circuit, because of its power, got a fair amount of attention, and asked if what was being said was that Alaska did not get enough attention being within the Ninth Circuit Court of Appeals. CHAIRMAN GREEN advised members that when the majority of the backlog resided in the state where the court was headquartered, Alaska was way far removed. He stated that to be heard more often in a smaller district certainly bided better for the state of Alaska. Number 574 REPRESENTATIVE NORMAN ROKEBERG stated that he would say that the decisions rendered by circuit courts and the weight of authority they carried nationally, depended on the quality of their decisions, not their locale or size. REPRESENTATIVE JEANNETTE JAMES stated that aside from the fact that the Ninth Circuit Court of Appeals was backlogged, it covered a huge area and dealt with many, many cases. She was somewhat embarrassed to state the following; however, Representative James advised members that she lacked faith in the judicial system, and the reason she pointed that out was because in evaluating cases, she had found that a lot of decisions were based on things other than the law, and on public attitudes and where things were in a society. Representative James stated that when they see decisions coming out of a case where most of the judges are in California, that she found very little in common with that state. REPRESENTATIVE JAMES stated that if those judges rendered decisions and were influenced, whatsoever, by the area in which they lived and the news they heard everyday as to what was happening society, she felt left out. Representative James felt that if a Court of Appeals were moved close to Alaska and included states that Alaska had more in common with, that Alaska would have a chance to be recognized more fairly and according to the law. Representative James believed that HJR 30 expressed the best interest for the state of Alaska. REPRESENTATIVE JAMES pointed out that the backlog issue was another deterrent to the state for realizing prompt service from the Ninth Circuit Court of Appeals. REPRESENTATIVE BRIAN PORTER expressed to members that the same resolution had been before the legislature the previous session, and it passed unanimously. He stated that some of the decisions that had come out of the Ninth Circuit made it plainly obvious that they knew nothing about the state of Alaska, cared nothing about the state of Alaska, and thought perhaps Alaska was analogous to Iowa in 1850, or something really ridiculous. REPRESENTATIVE PORTER pointed out the Ninth Circuit Court of Appeals had been reversed more than any other Circuit, and that was not the team he wanted to be on. Number 760 REPRESENTATIVE ETHAN BERKOWITZ expressed that having grown up in the shadow of the Ninth Circuit, literally, he did not think they knew much about frozen ponds. REPRESENTATIVE CROFT asked why Hawaii was not listed among the states to be included in the proposed Twelfth Circuit Court of Appeals. MR. LOGAN expressed that the original idea was to have, in essence, a Northwest court because there were so many social, cultural and economic similarities, along with geographical similarities between the five states listed. REPRESENTATIVE BERKOWITZ noted that he had lived in other parts of the country, and the complaint was not particular to Alaska that the Ninth Circuit was too large. He felt a lot of the Circuits were far too large when considering the District of Columbia had two Circuits all by itself, and their population was roughly equivalent to the state of Alaska. Number 925 JOANNE GRACE, Assistant Attorney General, Natural Resources Section, Department of Law, advised members she was testifying on behalf of Attorney General Botelho who supported the Ninth Circuit Court of Appeals Reorganization Act. MS. GRACE advised members that the Ninth Circuit, by far, had the most judges and the largest area served than any circuit court. She stated that those facts did not serve the state of Alaska well. Ms. Grace explained that it was a large court with judges so far away that they could not adequately understand and appreciate the issues unique to Alaska. MS. GRACE advised members that in 1996, 60 percent of the cases the court heard were California cases, with approximately 2 percent being Alaska cases. She stated that of the judges currently serving on the Ninth Circuit, 64 percent were from California, with only one judge from the state of Alaska. MS. GRACE pointed out that a new Circuit, comprised of Alaska, Montana, Idaho, Oregon and Washington would eliminate the dominance of California judges over those states. Ms. Grace stated that proponents of splitting the Circuit had complained that Californians, and other Southwestern judges, failed to appreciate the effect of their environmental decisions on the economies of states dependant on natural resource development, rather than on high-tech industry. She stated with respect to Alaska, the lack of understanding extended far beyond economics. Ms. Grace pointed out that most judges on the Ninth Circuit Court of Appeals had different sensibilities and perceptions of social, geographical, political and economic matters. MS. GRACE provided an example of the Ninth Circuit's interpretation of the word "rural", as applied to the state of Alaska. She explained that the Ninth Circuit panel, which consisted of three judges from Pasadena, San Francisco and San Diego, California, obviously applied a non-Alaskan understanding of its meaning. Ms. Grace advised members that the issue in Kenaitze Indian Tribe v. State of Alaska, 860 F.2d at 312 (9th Cir. 1988), was whether ANILCA's rural subsistence priority applied to the Kenai Peninsula. Ms. Grace advised members that the state regulation at issue defined "rural" as it was generally understood in Alaska to mean the "bush". It did so by excluding the areas characterized primarily by a cash economy, which then excluded the Kenai Peninsula. MS. GRACE advised members that the Ninth Circuit vehemently rejected that interpretation, calling it "unusual" and "exotic". The court said: "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...." MS. GRACE pointed out that the court completely rejected the possibility that "rural" might mean something different in the state of Alaska, the only place where ANILCA applied, than it did in the Midwest or West. MS. GRACE advised members that another concern of the Attorney General was the untimeliness of decisions that come from the Ninth Circuit Court of Appeals. She stated that it was due, in part, to the volume of cases the court heard, but was also escalated in Alaska's case because of the court's oral argument calendar. Ms. Grace stated that in general, the court heard argument each year, 12 times in San Francisco; 12 times in Pasadena; 12 times in Seattle; six times in Portland; two times in Honolulu; and one time in Anchorage. She advised members that a panel of three judges travel to Anchorage each year in July or August to hear Alaska cases. She pointed out that as a result, the Ninth Circuit saved Alaska cases for its annual trip. Ms. Grace stated that while a case in California may be set a month or two after briefing was complete, Alaska cases were generally set for argument in July or August, even if briefing was complete in January of February, which created an unnecessary delay for Alaskan cases. MS. GRACE further stated that Alaska, and the other states included, would benefit from the creation of a Twelfth Circuit Court of Appeals comprised of Northwestern states because the Twelfth Circuit Court judges would not bring a foreign perspective to their decisions. CHAIRMAN GREEN asked if Ms. Grace would fax a copy of her testimony to the House Judiciary Committee. MS. GRACE responded in the affirmative. Number 1156 REPRESENTATIVE ROKEBERG advised members that he was pleased to hear the testimony of Ms. Grace because it corroborated his understanding of the fact that, while he did attend a law school in the state of California, and clearly, the understanding of the California ethos, as related to the law, did not serve the purposes of the state of Alaska well. He advised members that he strongly supported HJR 30. REPRESENTATIVE CON BUNDE moved to report HJR 30 out of committee with individual recommendations and a zero fiscal note. There being no objection, HJR 30 was reported out of the House Judiciary Committee. CHAIRMAN GREEN announced that the House Judiciary Committee would go into recess for the purpose of attending the funeral of former State Representative Bob Ward. The committee would recess at 2:15 p.m., and reconvene at 5:30 p.m. Chairman Green pointed out that because of that, he would take testimony from two people on HB 207, and they would then revert back to SB 41 when the committee reconvened at 5:30 p.m.