HJR 52 - CIRCUIT COURT OF APPEALS FOR 12TH CIRCUIT  Number 768 CHAIRMAN PORTER introduced HJR 52 as sponsor. This resolution would be sent to the U.S. Congress in support of legislation there which seeks to divide the current 9th Court of Appeals into two courts. The federal level 9th Court of Appeals has jurisdiction over Alaska. Chairman Porter added that the 9th circuit is one of 11 circuits and it was established in 1911. It is comprised of virtually the entire western part of the United States and it has become unwieldy in size. The ability to run a consistent decision making body of a court of appeals has become compromised. CHAIRMAN PORTER continued to say that there have been concerns about the 9th Circuit's size and considerations for dividing it into two have been around for a while. In 1970 there was a federal study done on the 9th and 5th circuit. The 5th circuit, as a result of this study, was divided and the 11th Circuit Court of Appeals was established. The 9th circuit was kept intact, but instead of all of the judges hearing the respective cases, groups of judges within the 9th circuit hear them instead, which results in inconsistent decisions being handed down. This makes it difficult and expensive for those states which it serves to do business, let alone to interpret what the law really says. CHAIRMAN PORTER added that the seat of the 9th Circuit Court is in California. The administrator lives in San Francisco, most of the judges in Los Angeles. Since these judgeships are lifetime appointments, they spend a lot of time in these areas. He offered an anecdote as an illustration about this alienation from Alaska. In recent discussions in the 9th Circuit regarding many Alaska cases now before the court, in trying to define rural as applied to Alaska, they sought help to define it by referring to the Milepost Magazine. They proclaimed that everyone knows that a rural district is one where there is not a lot of population and it's got a lot of agriculture and ranches. This is the extent to which how out of touch the 9th Circuit is with the state of Alaska. CHAIRMAN PORTER summed up by saying that Alaska, Washington, Oregon, Idaho and Montana would become the 12th Circuit Court of Appeals. Number 1045 BRUCE BOTELHO, Attorney General, Department of Law, stated that the administration fully supports HJR 52. He said that there were two problems with the existing 9th Circuit Court from their perspective. First, the 9th circuit is the largest in the country and secondly, it is the most back logged circuit in the country, since it is dominated by California. There are currently 28 judges on the court, 19 of them are California based judges. This is pertinent, not necessarily because Alaska has anything directly against California, but it is a recognition that it should be a reasonable expectation that judges should share common experiences with the people over whom they are passing judgment. Mr. Botelho cited the case used by Chairman Porter concerning the definition of rural in the Kenaitze case. MR. BOTELHO went into greater detail regarding this case. He referenced part of the language to help illustrate this problem. The state of Alaska in adopting regulations on the concept of rural in the context of ANILCA, everyone understood rural to mean bush Alaska. In implementing this interpretation the Alaska Board of Fish and Game interpreted rural to exclude areas where the predominate economic characteristic was a non-cash economy. The consequence of this was that the Kenai peninsula was ruled not to be a rural area. This matter was then taken to court. U.S. District Court being very familiar with Alaska and also familiar with the history of ANILCA ruled in the state's favor. They felt this was a reasonable interpretation, hence an appeal was undertaken to the 9th Circuit Court. MR. BOTELHO quoted the actual language from part of the 9th Circuit Court's opinion in the context of Alaska being unusual if not, exotic. "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." MR. BOTELHO stated again that the panel was constituted primarily of California judges, was a three member panel, which rendered this opinion. In fact most of the panels are constituted of judges from California and who are removed from the rural experience, certainly the Alaskan and Northwestern experience. This is one problem. The second problem is simply the delay. He noted that one tends to focus and put priority on those issues they are most familiar with and those closest to home. Those Alaskan cases which are of utter importance don't appear to have the same type of priority as those arising out of the chief contributor to the court's docket, California. MR. BOTELHO thought the best case in point was the Katie John case. All of us have an interest in having a case decided quickly, no matter what side someone is on. Even after expedited consideration was granted in this case, it took 13 months after everything the lawyers could have done, had been done and this information had been submitted for a decision resolution. It took another nine months for the panel to make a clarification on reconsideration. The 9th Circuit has been notoriously the circuit with the most delay. The focus of the federal court has been to figure out innovative ways to expedite consideration in the 9th circuit. They have made some improvements so that the average case supposedly takes 15 months after it's been submitted. It is still woefully slower than the other circuits. As a sovereign state Alaska has the right to have it's issues decided much more expeditiously than the current makeup which of the 9th circuit would permit. MR. BOTELHO stated that there had been some developments which suggests modifications to the resolution. When the bill reached the Judiciary Committee in the U.S. Senate there were other states who were enthused about getting out of the 9th circuit. On December 7, 1995 on the floor, both Arizona and Nevada requested to abandon the 9th circuit as well. As part of the price to get this bill out of committee, Phoenix had been identified as the new center for this new 12th circuit. He suggested that the resolution before the Alaska Judiciary be modified to express Alaska's desire that the headquarters be located in the Northwest as was originally contemplated. MR. BOTELHO continued that on Thursday of this last week, HR 2935 was introduced by Congressman Don Young as a companion bill promoting the 12th circuit and it's in the original form. This would constitute the five northwestern states which were originally intended to be part of the Senate 956 and would allow that the 9th Circuit Court be headquartered in Portland. He stated, "thus again events have overtaken the resolution not in concept, but in terms of very specific events which should be tailored to modifying HJR 52." MR. BOTELHO stated that he had made contact with his colleges in the other northwestern states and while half of them are Republican and the other Democrat, they unanimously supported the division of the circuit. This is not a partisan issue. Number 1493 REPRESENTATIVE CON BUNDE asked what steps these states have taken to pursue the establishment of this 12th Circuit Court. MR. BOTELHO answered that virtually every state has signed on to the senate bill, but in terms of the house bill he hadn't yet reviewed it to see who else has signed on. Senator Gordon of Washington state is the primary sponsor of S956 and both of Alaska's senator have signed on, as have at least one senator of the other states involved. Number 1532 REPRESENTATIVE CYNTHIA TOOHEY asked if the bill language for HJR 52 would be rewritten to just include northwestern states. CHAIRMAN PORTER said that he would ask the committee to conceptually change this bill now and have the bill drafter put in this conceptual amendment before it is moved out of committee. Number 1570 REPRESENTATIVE BETTYE DAVIS made a motion to conceptually change HJR 52 as outlined, which would allow that the headquarters of 12th circuit be in the Pacific Northwest and it would state that the Judiciary Committee supports the federal companion bill HR 2935 as proposed. Hearing no objection HJR 52 was so amended. Number 1697 REPRESENTATIVE AL VEZEY made a motion to move HJR 52 from the Judiciary Committee with individual recommendations as amended. Hearing no objection it was so moved.