Legislature(1997 - 1998)

04/09/1997 01:10 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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           
 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                 
 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                
 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                    
 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                
 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            
 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.                                                       

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