Opinion: Circuit court split helps Alaskans, not idealogues

Posted: Thursday, November 03, 2005

BENJAMIN BROWN

The Alaska Observer

The judiciary is not a big worry for most of people in Juneau, unless they're called into court for jury service or for some legal matter affecting them or a family member. But courts are a very important part of our governmental system, and we should take the time to think about what is good about the way they're set up, and what might be improved. As an attorney, I imagine I pay a little more attention than the average person, but the judicial system matters to all of us. Whether it's a criminal case, where society metes out punishment for breaking the laws designed to protect us all and provide for civic order, or a civil matter where someone seeks compensation for a wrong allegedly suffered, legal decisions have a real effect on life.

There are two court systems for Alaskans; the state and the federal. One can be brought up on criminal charges in either court; similarly one can bring a civil action in either court. The U.S. Court for Alaska is where a person goes if the claim involves federal law, or parties from different states. It's where cases involving the Forest Service and the Army Corps of Engineers are heard. Once a decision is reached in U.S. District Court, it's possible to appeal that judgment to a higher level, to the Court of Appeals.

Federal appellate courts are organized into circuits that include several states. Alaska has the misfortune of being in the largest of the 11 circuits in the nation, which creates real problems, not just for Alaska, but for the 11 states and territories that are part of the current 9th Circuit. The members of this far-flung circuit are Alaska, Arizona, California, Guam, Hawai'i, Idaho, Montana, Nevada, the Northern Marianas, Oregon, and Washington. By any estimation, that's a lot of territory, a lot of people, and a huge caseload.

Why does it matter that the 9th Circuit is so huge, and does it make sense to want to break it up? It matters because it is simply too large to work effectively. Some say that the judges tend to be California liberals, but that is a silly argument when considered alongside the raw numbers. As a matter of geography, the 9th Circuit spans most of the western half of our country, from Barrow to the Mexican border, and from various islands in the middle of the Pacific Ocean to the Rocky Mountains. There are 58 million people in the 9th Circuit, and there'll be over 5 million more by the end of the decade. It is a ridiculous situation because these geographic expanses and massive numbers of people dictate the volume of cases appealed from the various federal district courts to the 9th Circuit Court of Appeals, which take way too long.

The average time it takes for an appeal to the 9th Circuit to be heard and a decision to issue is fully five months longer than the national average. Think about what that would mean to you as a party to a case - the old saying is that justice delayed is justice denied - exactly what happens with the current composition of the 9th Circuit.

What's the solution? Sen. Lisa Murkowski has introduced legislation to split the 9th Circuit into two separate new circuits, creating a 12th Circuit Court of Appeals. I disclose right now that I worked on Lisa's campaign for over a year to help her get elected, but that has nothing to do with my opinion about her bill (called CARMA, for the Court of Appeals Restructuring & Modernization Act) which has had unsuccessful predecessors, and which really and truly needs to pass as soon as possible. You do the math, and the numbers speak for themselves. Alaskans, and all of the good people of the western half of our country, deserve better judicial treatment than they're getting right now from their federal courts, and CARMA is the best way to make it happen.

Beyond the vast numbers of people, and the slow timeframe for hearing and resolving cases, one argument I haven't yet heard raised in support of Sen. Murkowski's legislation is the disadvantage the status quo imposes on Alaska federal District Court judges in rising to the appellate bench. The president appoints federal judges, and it's common for those who have served on the District Court to move up to the Circuit Court. But with so many Californians and others crowding the field, not too many Alaskans have had the privilege and honor of moving up to the circuit. Splitting the 9th Circuit in two makes it far likelier that Alaskan judges will have the opportunity to do so. This is good not because said Alaskans will subscribe to any particular judicial philosophy, but because Alaskans deserve their place on bench as much as anyone else.

At the end of the day, opponents of CARMA may try to paint it as an ideologically motivated power grab, but these naysayers will be more full of it than the 9th Circuit's case docket. It is a plain, simple, and unarguable statistical reality that the current 9th Circuit is far too large and unwieldy. CARMA should become law, and the judicial system will improve for the benefit of all Americans.

• Benjamin Brown is a lifelong Alaskan who lives in Juneau.



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