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The Honolulu Advertiser
Posted on: Saturday, April 12, 2003

Lingle asks legal community to keep eye on justices

By Lynda Arakawa
Advertiser Capitol Bureau

In blunt public comments criticizing the Hawai'i Supreme Court, Gov. Linda Lingle yesterday called on the legal community to watch over the judiciary, which she said many have called "dysfunctional."

In her keynote speech before 80 people — including federal judges, magistrates and lawyers — at the U.S. District Court conference luncheon, Lingle said she has heard concerns from many attorneys about the Hawai'i Supreme Court, including complaints about inconsistent rulings, a backlog of cases and a lack of collegiality among justices.

"We are counting on the courts to be fair and to be honest, but again in a real practical sense, only those of you in the legal community can do anything about policing the judiciary," Lingle said during her speech at the Halekulani hotel. "So don't let us down, we're counting on you."

Lingle, Hawai'i's the first Republican governor in 40 years, was speaking about a judiciary headed by Supreme Court justices and other judges appointed by Democratic governors and approved by a Democratic-controlled Senate.

She has made it clear on previous occasions that she wants a judiciary that interprets the law rather than shaping law, which is counter to the reputation of the state high court. Its past decisions include interpreting the state constitution to expand the rights of criminal suspects to ensure a fair trial and Native Hawaiians to go onto private property to engage in traditional Hawaiian religious, cultural and food gathering practices.

One of the most controversial was the court's 1993 decision that paved the way for legalizing same-sex marriages in Hawai'i until the state constitution was amended in 1998 to prohibit such unions.

Lingle said yesterday she began hearing concerns about the Supreme Court while she was also getting input from the legal community about the six judicial nominees for the high court, which she made public two weeks ago. She is set to appoint a replacement this month for Associate Justice Mario R. Ramil, who retired in December.

State judiciary spokeswoman Marsha Kitagawa yesterday did not address most of Lingle's critical remarks but issued a statement saying the judiciary hopes Lingle will support its request to the Legislature for two additional judgeships for the state Intermediate Court of Appeals.

She also said the court hopes Lingle will appoint a justice who is "a real workhorse and able to engage in the collegial discourse necessary to appellate adjudication."

The governor said yesterday that lawyers cited a backlog of cases at the Supreme Court and that a judge from another court informed her the high court has about 790 pending cases.

"That kind of backlog obviously is where the expression 'justice delayed is justice denied' comes from," she said.

Kitagawa said the judiciary's most recently available statistics show that 381 cases are briefed and awaiting disposition at the court and that another 251 are briefed and awaiting disposition at the Intermediate Court of Appeals.

Lingle also said lawyers have expressed concerns about a lack of oral arguments before the five-member high court and that they complained rulings are not consistent. The governor did not mention specific cases, but she said a lack of consistency is a problem "because when you don't have consistency in opinions it means there are other things at work that are motivating a decision other than just the law."

Another concern in the legal community is what appears to be a lack of collegiality and professional manner among the state Supreme Court justices, Lingle said. She said she has heard that even written opinions have comments "that are made in a personal way rather than disagreeing on the law as they should be doing."

"It was distressing; it was hard for me to hear person after person talk about our state Supreme Court in this fashion," she said. "And to the extent that this is true, and I can tell from your body language that it is true; you are the only ones who can do something about it. You in the legal community."

Lingle also cited an April 1 ruling by a substitute panel of the state Supreme Court to punish a Supreme Court staff attorney with public censure and community service rather than suspending his license as recommended by the state Office of Disciplinary Counsel.

In that case, Supreme Court Justice Paula Nakayama testified during the disciplinary committee hearing in defense of Alvin Sasaki after she was subpoenaed, although the high court's revised code of judicial conduct discourages judges from testifying as character witnesses even when subpoenaed to appear.

Lingle said that a news story about the ruling "outlined the favoritism that was shown for the staff attorney of the Supreme Court" and that she was pleased the Office of Disciplinary Counsel this week requested the high court reconsider the sanctions imposed on the staff attorney.

"Finally, someone willing to stand up in public and say, 'Wait a minute,'" she said.

The high court's current four members were all appointed by Democratic governors. Chief Justice Ronald Moon, the only member with a Republican background, and Associate Justices Steven Levinson and Nakayama were appointed by former Gov. John Waihee, who had also appointed the now-retired Ramil. Associate Justice Simeon Acoba was appointed by former Gov. Ben Cayetano.

Reach Lynda Arakawa at larakawa@honoluluadvertiser.com or at 525-8070.

Correction: Alvin Sasaki is staff attorney for the state Supreme Court. His full name was not given in a previous version of this story.