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The Honolulu Advertiser
Posted on: Saturday, December 20, 2003

Appeals courts failing their mission, panel says

By Lynda Arakawa
Advertiser Capitol Bureau

The Hawai'i Supreme Court and the state appeals court are failing to achieve their mission of deciding cases in a timely fashion, a committee of lawyers said in a report this week highly critical of the state appellate court system.

LINGLE

MOON
A special committee of the Hawai'i State Bar Association outlined numerous concerns about the Supreme Court and the Intermediate Court of Appeals, specifically the high case backlog, unpublished decisions, a reduction in oral arguments and what it said is a lack of clear internal guidelines.

Bar Association President Douglas Crosier created the special committee in May after Gov. Linda Lingle criticized the high court in a speech before federal judges and lawyers and said she heard it was "dysfunctional." The committee, made up of nine attorneys and one government watchdog advocate, is the first of its kind in Hawai'i as lawyers typically avoid publicly criticizing the high court.

The committee largely focused on the case backlog of the appellate system, which has grown from the mid-1990s to more than 1,000 as of Aug. 31 despite a decline in appeals.

"When the backlog has persisted for five years, and has in fact grown in that time despite a decline in incoming cases and elimination of oral argument, the committee is compelled to conclude that the Supreme Court is not using its existing resources efficiently nor managing its internal processes so as to achieve its core mission," the committee wrote.

Chief Justice Ronald Moon yesterday said in a statement: "I have reviewed the draft report and appreciate the work of the committee members. I understand the Hawaii State Bar Association Board has not reviewed and approved the report. I will await the final recommendation by the HSBA Board and will consider any suggestions as we continue our work."

Judiciary spokeswoman Marsha Kitagawa also said that Moon is "considering a number of new initiatives designed to address the appellate backlog, including introducing new legislation and changing internal operating processes."

James Burns, chief judge of the Intermediate Court of Appeals, could not be reached for comment.

The five-member Hawai'i Supreme Court is the state's highest court and the final authority on cases here. The Supreme Court receives all appeals and assigns cases to the Intermediate Court of Appeals or handles them itself.

In the 83-page report made public Thursday, the committee cited a finding from the National Center on State Courts that showed the "clearance rate" of Hawai'i appellate courts in fiscal years 2000 to 2002 is, by the center's criteria, a "cause for concern." The rate is based on the number of decisions and the number of new filings.

Bar Association recommendations

The Hawai'i State Bar Association's Special Committee on Appellate Issues made more than 30 recommendations to the appellate courts, the bar association, lawyers and others. Among the recommendations:

• Create internal court deadlines to comply with American Bar Association guidelines that 50 percent of appeals be decided within nine months of the notice of appeal and 90 percent of appeals be decided within a year.

• Adopt monthly and annual quotas for productivity by each high court justice.

• Reduce the length of opinions by imposing a per judge, per year page limit.

• Improve procedures for when justices and judges retire and are replaced so new justices and judges can be productive immediately.

• Improve communication between the Hawai'i Supreme Court and the Intermediate Court of Appeals to address caseload management, how cases are assigned, and the allocation of resources.

• Prioritize civil case appeals.

• Publish a decision whenever two of the high court's five justices want it published.

• Increase the number of oral arguments in cases of public importance and where justices have questions for lawyers.

• The bar association should determine whether it can absorb any of the court's administrative functions to free up judicial resources for decisions.

• Lawyers should "take a more active and less timid role in speaking out constructively and thoughtfully on appellate issues."

• The Legislature should ensure Judiciary financing includes resources for the latest computer technology.

• The Legislature, governor and the Judicial Selection Commission should work together to eliminate the lag time between the retirement and replacement of judges and justices.

The committee also found that the time it takes for the Supreme Court to decide an appeal falls short of American Bar Association guidelines, which recommends that 50 percent of all appeals be decided within 270 days from the notice of appeal.

Hawai'i's median age of cases decided in fiscal year 2003 was 420 days.

All justices have also been writing longer opinions in the past 10 years, the committee determined. It also reported that it appears the appellate courts have failed to consistently make addressing the backlog a priority. The courts have produced an extraordinary number of opinions in the late '90s as part of a "backlog reduction project" but since then its productivity has fallen.

Bar association president-elect Dale Lee said some board members did not agree with some parts of the report or said they didn't have access to enough information to agree or disagree with some findings. He said the board will likely talk more about the report at its next meeting in January and that it has yet to decide whether to approve or make changes to it.

Crosier, a member of the committee, said he has invited Moon and Burns to call upon the board and the committee so they can work together in improving the appellate process. He said he has not yet heard from them.

James Bickerton, Honolulu attorney and committee chairman, said the report was to educate the bar about the problems the courts face, as well as help the court with an outside perspective on the problems. He said he hopes it will broaden and deepen the dialogue that is going on in the courts and stimulate more discussion about how to solve problems in the appellate system.

The committee did support Moon's statements that productivity was lower in years where justices died or retired and noted that Moon is widely known as an extremely hard worker who has received numerous awards and public recognition.

But it also said Moon must "lead the way decisively" in the matter of deciding cases in a timely fashion and that the other justices "must commit to follow that lead."

It said the high court has not established any standards that specify the length of time to decide cases nor does it set any quotas for the minimum number of decisions written by each of the justices.

The committee noted the case backlog erodes public confidence because of other measures that are taken to address the problem, such as drastically reducing oral arguments — hearings before the court.

"While (virtually abolishing oral arguments) does not appear to have increased the disposition rate, it has served to make the courts appear less accessible and more remote," the committee said.

It also took issue with unpublished decisions, which are not binding on other courts and cannot be cited except in limited circumstances. The committee said lawyers say important decisions that aren't published are of little use to the public because they cannot be cited. At the same time, some published opinions have been "devoted to the interpretation of statutes that have been repealed or cases that are unlikely to recur."

The committee also found a lack of open discussion between the Supreme Court and the Intermediate Court of Appeals, and recommended they meet regularly to discuss ways to manage caseloads, how cases are being assigned and the efficient allocation of resources.

The committee members are attorneys Bickerton, Crosier, Mark Bernstein, Ellen Godbey Carson, Beatrice Dawson, Samuel King Jr., Peter Lenhart, Howard Luke, Scott Saiki, and Jean Aoki, a member of the League of Women Voters.

To read the report, visit www.hsba.org.

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