SJR 8: Relating to the division of the Ninth Circuit Court of Appeals.

00 SENATE JOINT RESOLUTION NO. 8 01 Relating to the division of the Ninth Circuit Court of Appeals. 02 BE IT RESOLVED BY THE LEGISLATURE OF THE STATE OF ALASKA: 03 WHEREAS the United States Court of Appeals for the Ninth Circuit encompasses the 04 States of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and 05 Washington, as well as the Commonwealth of the Northern Marianas Islands and Guam; and 06 WHEREAS the United States Court of Appeals for the Ninth Circuit oversees nearly 07 one-fifth of the population of the United States, and has nearly twice as many judges as the 08 next largest circuit court; and 09 WHEREAS a distinguished commission appointed by the United States Congress and 10 chaired by the Honorable Byron R. White, Associate Justice of the United States Supreme 11 Court, recommended that the Ninth Circuit as an adjudicative entity be divided; and 12 WHEREAS, when that distinguished panel solicited the opinions of the Justices of 13 the United States Supreme Court, four out of the five who responded endorsed splitting the 14 Ninth Circuit; and 15 WHEREAS the White Commission further noted that "in our opinion, apparently 16 shared by more than two-thirds of all federal, appellate judges, the maximum number of

01 judges for an effective appellate court functioning as a single decisional unit is somewhere 02 between eleven and seventeen"; and 03 WHEREAS the Ninth Circuit has 28 seats for active judges and a total of 45 active 04 and senior judges currently active on the court, a size far larger that the maximum 05 recommended by the White Commission; and 06 WHEREAS the size of the Ninth Circuit requires that en banc decisions be heard in 07 panels of 11 judges, less than half of the 28-judge court, resulting in majority decisions of 08 only six judges, less than one-fourth of the 28-judge court, that are cited to reflect the 09 judgment of the circuit as a whole; and 10 WHEREAS, in order for a court to produce a thorough and coherent body of law, the 11 judges on that court must each be familiar with all the opinions published by that court; and 12 WHEREAS the Ninth Circuit produced 504 published opinions and 3,744 13 unpublished opinions in 2002 and regularly produces a quantity of written opinions that 14 makes it virtually impossible for each judge to thoroughly review each opinion; and 15 WHEREAS the White Commission said "[t]he volume of opinions produced by the 16 Ninth Circuit's Court of Appeals and the judges' overall workload combine to make it 17 impossible for all the court's judges to read all the court's published opinions when they are 18 issued"; and 19 WHEREAS this inability to read the corpus of published law in the circuit makes the 20 production of consistent, coherent decisions impractical and results in frequent errors by the 21 court, as demonstrated by its having the highest rate of reversal by the United States Supreme 22 Court of any appellate court in the nation; and 23 WHEREAS the Ninth Circuit was reversed five of the first six times it was reviewed 24 in the October 2002 term, including three unanimous and per curiam reversals; and 25 WHEREAS a 2002 statistical survey conducted by the Honorable Richard A. Posner, 26 a judge on the United States Court of Appeals for the Seventh Circuit, demonstrated a 27 statistically significant correlation between an increase in the number of judgeships on a court 28 and the rate at which that court was reversed on review; and 29 WHEREAS the Chief Justice of the United States Supreme Court's 2002 Year-End 30 Report on the Federal Judiciary states that appellate filings in the Ninth Circuit have increased 31 by more than 115 percent since new judgeships were last established, an increase in workload

01 considerably higher than that of any other circuit court; and 02 WHEREAS appeals filed in the Ninth Circuit increased by over 10 percent in the year 03 2002 alone, a year in which filings in the appellate courts nationwide increased by only 0.2 04 percent; and 05 WHEREAS the Ninth Circuit received nearly 20 percent of all pro se filings in the 06 federal appellate courts last year; and 07 WHEREAS the Ninth Circuit, which handles more than 50 percent of the nation's 08 immigration cases, has, as a result of new requirements that the Immigration and 09 Naturalization Service clear out their backlog of cases by March 25, 2003, begun receiving an 10 average of 150 petitions for review a week, a nearly 500 percent increase over past years; the 11 Ninth Circuit's immigration case load is likely to increase even more in the coming years; and 12 WHEREAS cases involving crucial federal legislation affecting Alaska exclusively, 13 such as the Alaska Native Claims Settlement Act and the Alaska National Interest Land 14 Conservation Act, require great familiarity with the legislation to properly adjudicate, due to 15 the great complexity of the legislation; and 16 WHEREAS a Ninth Circuit judge cannot attain the necessary familiarity with federal 17 legislation affecting Alaska because a Ninth Circuit judge may only sit on a panel in Alaska 18 once every 10 years, as a result of the extraordinary size of the court; and 19 WHEREAS this unfamiliarity has resulted in decisions such as the 1996 Ninth Circuit 20 decision in Alaska v. Village of Venetie, which caused great political turmoil in Alaska before 21 being unanimously reversed by the United States Supreme Court; and 22 WHEREAS the issue of splitting the Ninth Circuit has arisen repeatedly, consuming 23 vital judicial and legislative resources, a drain on judges' and legislators' time that will 24 continue until the Ninth Circuit is split; and 25 WHEREAS Alaska Senators Ted Stevens and Frank Murkowski, along with other 26 United States Senators, cosponsored S. 2184 in 2000 and S. 346 in 2001, endorsing a division 27 of the current Ninth Circuit into two circuits, the Ninth and the Twelfth, with the resulting 28 Ninth Circuit encompassing only Arizona, Nevada, and California, and the Twelfth Circuit 29 encompassing the rest, which would be an excellent solution to the current problem and 30 beneficial to Alaska; 31 WHEREAS Idaho Congressman Mike Simpson introduced H.R. 1203 in 2001, a

01 companion bill that would divide the Ninth Circuit in the same way; and 02 WHEREAS, when the former Fifth Circuit grew too large, both the judges of the 03 court and members of Congress recognized the problems caused by its size and, in 1980, split 04 the court successfully into the Fifth and Eleventh Circuits; 05 BE IT RESOLVED that the Alaska State Legislature respectfully requests the United 06 States Congress to divide the United States Court of Appeals for the Ninth Circuit into two 07 more circuit courts in order to resolve the problems caused by its size. 08 COPIES of this resolution shall be sent to the Honorable Richard B. Cheney, Vice- 09 President of the United States and President of the U.S. Senate; the Honorable Ted Stevens, 10 President Pro Tempore of the U.S. Senate and member of the Alaska delegation in Congress; 11 the Honorable J. Dennis Hastert, Speaker of the U.S. House of Representatives; the Honorable 12 Bill Frist, Majority Leader of the U.S. Senate; the Honorable Tom DeLay, Majority Leader of 13 the U.S. House of Representatives; the Honorable Thomas Daschle, Minority Leader of the 14 U.S. Senate; the Honorable Nancy Pelosi, Minority Leader of the U.S. House of 15 Representatives; the Honorable Orrin B. Hatch, Chair of the U.S. Senate Committee on the 16 Judiciary; the Honorable F. James Sensenbrenner, Jr., Chair of the U.S. House Committee on 17 the Judiciary; and to the Honorable Lisa Murkowski, U.S. Senator, and the Honorable Don 18 Young, U.S. Representative, members of the Alaska delegation in Congress.