Parker v. McCarrey, 16499.
Decision Date | 16 June 1959 |
Docket Number | No. 16499.,16499. |
Citation | 268 F.2d 907 |
Parties | Leonard Wesley PARKER, Petitioner, v. Honorable J. L. McCARREY, Jr., District Judge of the District Court for the Territory of Alaska, Third Division, Respondent. |
Court | U.S. Court of Appeals — Ninth Circuit |
Wendell P. Kay, Buell A. Nesbett, James J. Delaney, Arthur D. Talbot, Russell E. Arnett, Anchorage, Alaska, for appellant.
Malcolm R. Wilkey, Asst. Atty. Gen., Robert S. Erdahl, Donald H. Green, Herman Marcuse, Daniel Ohlbaum, Carl H. Imlay, Attys., Dept. of Justice, Washington, D. C., William T. Plummer, U. S. Atty., Anchorage, Alaska, John L. Rader, Atty. Gen., State of Alaska, amici curiae.
Before CHAMBERS, BARNES and JERTBERG, Circuit Judges.
Alaska became the 49th state of the United States and ceased to be a territory by virtue of the President's proclamation on January 3, 1959.1 Under the Alaska Enabling Act,2 the existing territorial court with its four divisions3 was continued upon an interim basis for an indefinite time, but not to exceed three years.4 Thus, the act contemplated some delay on the part of the new state in establishing its own state court system.
On October 24, 1958, Parker was indicted by the grand jury of the Third Division of the United States District Court for the Territory of Alaska, which charged him with theft of United States government property. Having to no avail attacked (since January 3, 1959) the "territorial" court's jurisdiction in that court and being under the threat of impending trial there, Parker asks us to issue a writ of prohibition or a writ of mandamus to stop the proceedings there. Petition to file the petition heretofore lodged is granted and the petition is dismissed for lack of jurisdiction in this court.
It seems clear that the effect of the Enabling Act is to generally restrict this court's jurisdiction on decisions or judgments rendered in Alaska after January 3, 1959, to those coming up from the newly created U. S. District Court for the District of Alaska. It is possible that the "District Court for the District of Alaska" is in existence now and is just not staffed, or it may be that it comes into existence when the President appoints the federal district judge therefor. That is a question we do not decide. No one has suggested that the "territorial court" which continues to act is the new United States District Court for the District of Alaska. And, such a suggestion could have no sensible basis.
It would appear that the amendments to Titles 18 and 28 made by Section 12 of the Enabling Act would automatically restrict our Alaska jurisdiction on "new business" to the United States District Court for the District of Alaska. Further, we think that is the net express effect of Sections 13, 14, 15, 16, 17 and 18, when read together.
The subject of this petition presents a very practical problem for all Alaska. This court is asked to ascertain and define the nature of the continued interim United States District Court (with its four divisions) for the Territory of Alaska and to base its decision herein upon that determination. In our view it would be unwise to accept the invitation. We believe that having said the interim court is not the United States District Court for the District of Alaska we cannot speak authoritatively beyond that point.
We are urged by Parker to issue a writ to protect our eventual jurisdiction when Parker's problems come to us through the United States District Court for the District of Alaska. We can predict that there will be life in the United States District Court for the District of Alaska, but that Parker would have some cause for appeal or that he would even be prosecuted there is too speculative for us to issue an extraordinary writ.
In the spirit of helpfulness we might give our views on the current Alaska court situation, but if we cannot speak with the authority of a pronouncement that is required for decision, we deem it unwise to speculate as to the nature of the interim court. Thus, we must leave it on the basis of that which it is not, rather than on that which it is.
APPENDIX
Sections 12-18, Alaska Enabling Act. Public Law 85-508, 72 Stat. 339.
To continue reading
Request your trial-
Island Airlines, Inc., In re
...to the case first cited, it would seem that the federal status of the entity--the interim court--is not clear. See, further, Parker v. McCarrey, 9 Cir., 268 F.2d 907, and cases following at pages 912-913, concerning appellate jurisdiction over the interim court; United States v. Egelak, D.C......
-
Castner v. First National Bank of Anchorage
...of Alaska as a State, shall be prosecuted to final determination as though this Act had not been passed * * * " See Parker v. McCarrey, 9 Cir., 1959, 268 F.2d 907. 2 The controlling sections of the statute are as § 36-6-6, A.C.L.A. (1949). "Annual corporation tax: Penalty for nonpayment. Ev......
-
Woodring v. United States
...we do point out that here was a case where the solution was easily at hand on February 20, 1960. Although the opinion in Parker v. McCarrey, 9 Cir., 268 F.2d 907, did not reach in any way the Woodring problem, still trouble was forecast in the briefs presented in that case. The obvious cour......
-
Dixie Bedding Manufacturing Co. v. NLRB
... ... N. L. R. B. v. McGough Bakeries Corp., 5 Cir., 1946, 153 F.2d 420; N. L. R. B. v. Parker Bros. & Co., Inc., 5 Cir., 1954, 209 F.2d 278; N. L. R. B. v. Braswell Motor Freight Lines, 5 Cir., ... ...