Legislature(2003 - 2004)

03/12/2003 01:31 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
          SJR  8-DIVISION OF 9TH CIRCUIT CT OF APPEALS                                                                      
MR. BRIAN  HOVE, staff  for Chair  Seekins, explained  that  SJR 8                                                              
relates  to  splitting the  9th  Circuit  Court.   He  noted  that                                                              
twelve  days  ago  the  9th Circuit  Court  of  Appeals  upheld  a                                                              
controversial decision,  which essentially declared  the Pledge of                                                              
Allegiance  unconstitutional.   This  ruling clearly  demonstrates                                                              
the disconnect  the  court has with  Alaska.   SJR 8  respectfully                                                              
calls  upon  Congress to  divide  the  9th  Circuit Court.    This                                                              
action is necessitated  for a variety of reasons not  the least of                                                              
which includes  the vast  geographical and philosophical  distance                                                              
separating Alaska from the San Francisco based court.                                                                           
The  9th Circuit  Court  adjudicates a  caseload  far beyond  that                                                              
which  is reasonably  manageable.    In  total, there  are  eleven                                                              
Circuit  Courts of  Appeal  throughout the  country,  yet the  9th                                                              
Circuit Court oversees  nearly 20 percent of the  U.S. population.                                                              
In other  words, the 9th  Circuit Court  is twice the  ideal size.                                                              
This size  disparity is cited  as the primary  reason for  the 9th                                                              
Circuit Court's  relatively  high reversal  record in cases  heard                                                              
before the U.S. Supreme Court.                                                                                                  
SJR 8  endorses legislation previously  introduced in  Congress by                                                              
Senators  Ted  Stevens  and Frank  Murkowski.    This  legislation                                                              
would  reconfigure the  9th Circuit  Court  to encompass  Arizona,                                                              
California  and  Nevada.   The  proposed  new 12th  Circuit  Court                                                              
would  take  in   Alaska,  Hawaii,  Idaho,  Montana,   Oregon  and                                                              
Washington.   Senator Lisa  Murkowski recently introduced  similar                                                              
legislation in Congress.                                                                                                        
SJR 8  simply seeks to accomplish  two objectives: (1)  to correct                                                              
a  considerable imbalance  in the  9th  Circuit Court's  caseload,                                                              
and;  (2) provide  the disparate  regions falling  within the  9th                                                              
Circuit Court's  current purview with  a better informed  panel of                                                              
judges.  These  objectives are best accomplished  by splitting the                                                              
9th Circuit Court.                                                                                                              
MR. HOVE welcomed questions.                                                                                                    
2:47 p.m.                                                                                                                       
SENATOR OGAN  said splitting  the court  is not necessarily  going                                                              
to make  the judges better  because they are  there for life.   He                                                              
pointed to  the "one nation under  God" portion for the  Pledge of                                                              
Allegiance and said  he was always perplexed why a  lot of judges,                                                              
especially  the 9th  Circuit Court  judges,  seem to  look at  the                                                              
establishment  clause  of the  1st  Amendment that  disallows  the                                                              
establishment of  religion, but seem to totally  ignore the second                                                              
part  that says  "nor prohibit  the  free exercise  thereof."   He                                                              
said it  seems that  this resolution  is not  about the  Pledge of                                                              
Allegiance  ruling, but  that might  be some  of the catalyst  for                                                              
the  resolution.   Although  he wished  that  splitting the  court                                                              
would get  rid of some of  those judges, attrition  would probably                                                              
have to take  care of that.   He opined that it is  fortunate that                                                              
the  U.S. Supreme  Court  would  overturn  the 9th  Circuit  Court                                                              
decision once again.                                                                                                            
SENATOR OGAN  asked Mr. Hove if  he knew the running tally  of 9th                                                              
circuit cases  overturned by  the U.S.  Supreme Court  because the                                                              
last  time he  counted,  approximately  29 out  of  31 cases  were                                                              
MR. HOVE said he didn't know the precise number.                                                                                
SENATOR OGAN  said it  is extremely high  and splitting  the court                                                              
is not going to get rid of those judges.                                                                                        
MR. HOVE  said splitting  the court might  give an opportunity  to                                                              
play a larger role in the process.                                                                                              
SENATOR OGAN agreed.                                                                                                            
MR. HOVE  added that  whatever the  Legislature  could do  to that                                                              
extent would certainly be a benefit.                                                                                            
SENATOR OGAN informed  committee members he attended  a hearing at                                                              
the 9th  Circuit Court  a couple  of years  earlier involving  the                                                              
Katie John  case and found it  fascinating. [Katie John  et al vs.                                                              
United States of America No. 93-35295]                                                                                          
CHAIR SEEKINS  read from page 2,  line 23.  The 9th  Circuit Court                                                              
was reversed  five of the first  six times it was reviewed  in the                                                              
October  2002 term.   He  said one  of  the things  they are  very                                                              
concerned about  and one of  the reasons SJR  8 was proposed  is a                                                              
9th  Circuit  Judge  cannot  attain   necessary  familiarity  with                                                              
federal legislation  affecting Alaska because a 9th  Circuit Court                                                              
judge may only  sit on the panel  of Alaska once every  ten years.                                                              
It is hard  to get any continuity  for a little state  like Alaska                                                              
with that  number of cases and  that number of justices.   Because                                                              
of  Alaska's extraordinary  size,  no  one ever  has  a chance  to                                                              
build up any  familiarity with federal laws that  affect the State                                                              
of Alaska.                                                                                                                      
SENATOR ELLIS asked  how many judgeships were currently  vacant on                                                              
the 9th Circuit Court.                                                                                                          
MR. HOVE said  he didn't have that information,  but could provide                                                              
it if desired.                                                                                                                  
SENATOR ELLIS said he would like that information provided.                                                                     
SENATOR  THERRIAULT moved  SJR 8  from  committee with  individual                                                              
recommendations. There being no objection, it was so ordered.                                                                   

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