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The Honolulu Advertiser
Posted on: Sunday, November 23, 2003

Supreme Court struggles as cases, criticism pile up

 •  Justices must juggle reviews, administrative tasks
 •  Top jurists represent diverse backgrounds
 • Chart: Tracking appeals in Hawai'i's court system

By Lynda Arakawa
Advertiser Capitol Bureau

The Honorable Ronald T.Y. Moon, center, is chief justice of the Hawai'i Supreme Court and the head of the state's court system. Other members of the Supreme Court are, from left, Simeon R. Acoba Jr., Steven H. Levinson, Paula A. Nakayama and James E. Duffy Jr.
The Hawai'i Supreme Court, the final authority on disputes that affect the lives of every resident, faces a growing backlog of cases that has nearly quadrupled since the late 1990s, forcing some people to wait years for a decision.

Even though the number of appeals filed each year has been dropping, the high court has a backlog of 375 cases, including more than 20 that have been awaiting a ruling for more than four years and cover a wide range of issues, from labor law to criminal procedures.

"I understand you gotta stand in line, but how long is that?" says Charles Rapoza, a Big Island resident who has been waiting for more than four years for a decision in his appeal of a 1998 ruling about who was responsible for his son's electrocution at a construction site in 1994.

"I'm stuck in limbo here for the past nine years. And I would sure love to have some kind of closure in my life."

The backlog isn't unique to Hawai'i, nor is it a new problem for the court, which has been grappling with the issue for decades. But it contributes to an undercurrent of disenchantment among some in the legal community about the work of the court under Chief Justice Ronald T.Y. Moon.

Concern about the backlog is part of a lingering perception that the court is slow to act, isolated from the public and distracted by animosity among some of the five justices.

Some of these criticisms were given currency by Gov. Linda Lingle in a speech to lawyers and judges in April when she called the high court "dysfunctional."

About this series

A four-part Advertiser report on the state's highest court.

• TODAY — Challenges facing the Hawai'i Supreme Court today

• TOMORROW — Lives are on hold as the court tries to tackle its backlog of cases.

• TUESDAY — Lawyers want more guidance from the court. Plus, a look at tension on the bench.

• WEDNESDAY — What's next for the court?

While not every lawyer agreed with Lingle's assessment, shortly afterward the Hawai'i State Bar Association launched an unprecedented inquiry into how well the appeals process works, including a look at the Supreme Court. It is an extraordinary move, given that lawyers rarely question or criticize judges in public.

Moon and some lawyers say the court has done the best it can to tackle increasingly complex cases with limited staff and financial resources.

But others, including one of the court's associate justices, say the court doesn't provide the kind of legal guidance that the system needs to function.

"The backlog is used as an excuse, really, to mask some fundamental things I think we should be concerned about," said Associate Justice Simeon R. Acoba Jr.

During the past five months, The Advertiser has reviewed statistics and cases, and conducted interviews with dozens of judges, attorneys, elected officials, legal experts and litigants to assess the performance of the court.

Among The Advertiser's findings:

• The Supreme Court's productivity has declined significantly since the late 1990s. As of Aug. 1, the most recent data available, about 30 cases had been pending for more than four years.

• While the backlog of cases has been largely blamed on a lack of resources, the budget for the Supreme Court has grown slightly and its staff positions have been stable. The number of appeals coming before the court has declined from more than 800 in 1999 to 660 in 2003.

• The Supreme Court holds fewer oral arguments — public hearings on appeals — than it did in the early 1990s and under previous justices. Critics say this reduces dialogue between justices and the parties and gives the public fewer chances to observe and understand the process. Moon said the court cut oral arguments to deal with the case backlog, but statistics do not indicate a connection between the court's productivity and the number of oral arguments scheduled.

• Roughly two-thirds or more of the high court's decisions are issued via so-called memorandum opinions and summary disposition orders. These rulings are not published in law books and do not create precedent that provides guidance for lawyers and lower court judges on how to handle similar cases. The number of published decisions has grown in the past few years, although lawyers say they need more guidance from the court.

• Infighting among some of the justices raises questions about their ability to work together and has gone so far as to boil over into some of the court's decisions. Most notable are opinions by Acoba that bluntly criticize the court's direction in cutting down on oral arguments and published opinions, and an infamous 2002 decision in which Acoba's opinion was described as "puerile" in the majority opinion written by his colleagues.

• A series of questionable actions has led some in the legal community to question the court's credibility. Among the most notable are the court's release of a controversial decision a day after the Sept. 11 attacks to its handling of a disciplinary case involving its staff attorney earlier this year.

It is the backlog that is most troubling to many members of the legal community and to the people whose lives are affected by the court's decisions.

Hawai'i Supreme Court decisions

Some of the major rulings by the Hawai'i Supreme Court under Chief Justice Ronald Moon:

Same-sex marriage

May 1993. Perhaps the most controversial. By a 3-2 decision, the court rules that state laws banning same-sex marriages are unconstitutional unless the state can justify the ban. Voters nullified that ruling five years later by amending the state constitution to allow the Legislature to define marriages as between men and women.

Ceded lands

September 2001. The court strikes down a 1990 state law, known as Act 304, which set up a detailed mechanism for calculating the state's debt to the Office of Hawaiian Affairs for its use of ceded lands once controlled by the Hawaiian kingdom. The court said the law was in conflict with a federal law, affirmed the state's constitutional obligation to compensate Native Hawaiians for their historic losses and suggested that the state Legislature find ways to meet that obligation. The decision was issued the day after the Sept. 11 terrorist attacks.

Gathering rights

September 1995. In the latest of a line of decisions, the court reaffirms Native Hawaiians' rights to go onto private property for traditional gathering, cultural and religious purposes. The court said governmental agencies must try to protect those rights when approving future developments in Hawai'i. The court declared that the Western concept of private property where the owner can exclude anyone is "not universally applicable in Hawai'i" and that Native Hawaiians may have access to not only undeveloped lands but partially developed property.

Waiahole Ditch

August 2000. The court rejects part of the state water commission's landmark decision that divided Waiahole Ditch water between Windward and Leeward O'ahu. Reaffirms the state's commitment to the public trust doctrine, "to protect, control and regulate the use of Hawai'i's water resources for the benefit of its people."

Bad faith

June 1996. The court rules that people and businesses can recover damages from their insurance companies if the companies acted in "bad faith" for delaying payment of claims. The court also said a "bad faith" claim enables a person to recover all damages suffered as a result of the delay in payment.

Megan's Law

November 2001. The court strikes down part of the state's "Megan's Law" that provides the public a listing of convicted sex offenders and their addresses. The court said the law violated sex offenders' state constitutional rights by not giving them a chance to explain why they should be excluded from the public listing. The state Legislature later passed a law designed to give sex offenders that chance.

"I think the bigger concern is the fact that the court has so much work that it's not able to process appeals as quickly as anyone would like," said Paul Alston, the Hawai'i State Bar Association president in 1990-91 and among those who believe the court needs more resources. "When you have to tell a client that it may take two, three, four, five years to get a case decided, it is very hard for anyone to understand."

Moon acknowledged that the backlog is a problem.

"We are working as fast as we can with the resources we have," he said. "Certainly we would like to get to those cases as soon as possible."

Moon said the court will listen to the bar association's concerns, but he emphasized the court has asked the Legislature for more judges and resources for a decade.

"We are working with the bar committee that's looking at these issues by providing various information if requested," he said. "We look forward to receiving their comments and thoughts as well as their support of the judiciary's requests which may help the situation."

Moon, 63, who oversees the statewide judiciary with an annual general fund budget of about $111 million, was retained this year for a second 10-year term and plans to remain on the court until he turns 70, the age limit for justices.

Lingle's appointment of James E. Duffy Jr. to the court this year likely will be her last in her current term unless one of the justices unexpectedly leaves. If she is elected to a second term in 2006, Lingle may be able to appoint replacements for Acoba, whose term expires in May 2010, and Moon, who turns 70 in September 2010.

Lingle, the first Republican governor in 40 years, has two critics of the high court among her advisers. Mark Bennett, who has criticized the court for what he saw as decisions consistently favorable to criminal defendants, is her attorney general. Randall Roth, a University of Hawai'i law school professor, former Hawai'i State Bar Association president and longtime critic of the Hawai'i courts, is Lingle's adviser on education issues.

So while Lingle is essentially powerless to influence the direction of the court in the short term, she has demonstrated that she is not afraid to use her bully pulpit to scrutinize and criticize the decisions of the court.

Source of friction

In addition to being a source of consternation to the people awaiting decisions, the Supreme Court's backlog is one of the most acute points of friction on the court. Interviews with Moon, Acoba and Associate Justice Steven H. Levinson suggest there is a strong undercurrent of disagreement over how to address the backlog, though none of the justices would talk specifically about it.

Associate justices Paula A. Nakayama and Duffy did not want to be interviewed for this series of articles.

Court statistics show that in addition to the case backlog, the high court has been taking longer to decide appeals than it did in the late 1990s.

The average length of time was as high as 657 days for appeals disposed of in fiscal year 1997 to as low as 241 days in 1999. Since then it has grown, and the median age of appeals decided in the past fiscal year was 415 days.

Some court observers have attributed part of the backlog to the increase in dissenting and concurring opinions since Acoba joined the court in 2000, saying that such exchanges take more time.

Moon would not talk about whether the work of any of the justices contributed to the backlog.

"We are obviously not being as productive as we need to be and there are probably many reasons for that," Moon said. "I do not think it would benefit the court for me to opine as to particular reasons and will merely note that in 1998 we were all focused on reducing the backlog and had reached a consensus on processes for doing so."

When asked why the case backlog has increased, Levinson said the justices don't agree on how to deal with the problem.

"We're not all on the same page now," he said, but would not elaborate.

But the court's productivity had begun to fall before Acoba was sworn in, although that could be attributed to the decrease in the backlog at the time. And while the dissents and concurrences increased, the number of opinions produced by the court also increased slightly.

Acoba, however, has affected the court in other ways, particularly through his written opinions criticizing the court's lack of oral arguments and its reliance on unpublished opinions.

Moon cut down on oral arguments and published decisions in the mid-1990s in what he called "emergency procedures" to help reduce the backlog.

While some lawyers have supported Moon's decision to cut back on formal oral arguments and published opinions, others say the lack of oral arguments virtually closes the judicial process and that the legal community needs more legal guidance from the court. Among the most passionate critics of the reduction in oral arguments is Acoba.

"When we don't have oral argument, it's like we're an absentee court," Acoba said.

Moon said he sees the value in oral arguments, but that it's a question of balancing how the court uses its time.

"It seemed to me no question that we had to sacrifice the oral arguments so that people who have been waiting for their decision are able to get their issues resolved," he said.

However, statistics do not show a connection between the number of opinions issued and the number of oral arguments held.

For example, in fiscal 1997, the court heard oral arguments in four appeals and issued 473 opinions. The court heard oral arguments in four appeals in the 2001 fiscal year as well but issued 165 opinions.

Moon said cutting oral arguments alone will not reduce the backlog, but it will help keep the backlog from worsening.

Still, those familiar with the process say oral arguments require preparation that takes up justices' time.

"If you have 900 appeals in a year, you cannot have oral argument in 900 cases because you'd spend so much time on the bench you wouldn't be able to write an opinion," said former Associate Justice Robert Klein.

But perhaps the opinion that bred the strongest suggestion of antagonism among the justices was last year's State v. Yamada decision, in which the majority called Acoba's concurring opinion "puerile" in a footnote to the written decision. Levinson wrote the majority opinion, which was joined by Moon and Nakayama.

Moon said that the use of the word was a mistake. He, Levinson and Acoba would not discuss whether there are personal differences or infighting among the justices.

Controversies cited

Aside from its decisions, the Moon court also became embroiled in several controversies that spilled into the realm of politics.

Members of the legal community were buzzing about the highly unusual case in April involving the court's staff attorney, Alvin T. Sasaki, who admitted to numerous acts of misconduct in the 1980s and early 1990s when he was in private practice. To avoid a conflict of interest, the court deferred to a substitute panel to decide the case.

Most disciplinary cases involving recommendations for suspension or disbarment of attorneys average two to three months to be decided, but the case involving Sasaki took three years, with a decision hurriedly issued only after an Advertiser reporter began making inquiries about it. Despite recommendations by a disciplinary committee that Sasaki be suspended from practicing law, he received a public censure and 300 hours of community service.

Attorneys also were surprised that Associate Justice Nakayama testified during the disciplinary committee hearing in defense of Sasaki, praising his "stellar performance and reliability." Though Nakayama was subpoenaed to testify, the high court's revised code of judicial conduct discourages judges from testifying as character witnesses even when subpoenaed to appear.

After the decision, former Hawai'i Supreme Court Justice Frank Padgett called the delay in deciding the case "unconscionable." Honolulu attorney Gilbert Butson, who chaired the disciplinary committee that recommended Sasaki be banned from practicing law for three years, said he was "profoundly disappointed."

Moon later said in an Advertiser interview that he cannot comment on the case "except to say that I was not involved in that case and the substitute justices had the facts before them and they did rule in accordance with what they had in terms of the facts."

The court was also criticized for the timing of its decision on the controversial issue of ceded lands and the process by which the state pays for use of lands once held by the Hawaiian monarchy. The Supreme Court overturned a lower court decision, angering Native Hawaiians and delivering a blow to the Office of Hawaiian Affairs.

The decision was issued the day after the Sept. 11 attacks, barely registering in the minds of a community reeling from the terrorist attacks.

At the time, Moon, who wrote the unanimous ruling, responded to the criticism by saying that by deciding to "hold court" despite the attacks, he was "inspired by the resolve of many Americans, as expressed by President Bush, not to be defeated by these acts of terrorism."

He noted that other courts nationwide also issued decisions that day.

Critics said the timing of the case was an attempt to divert attention from a decision that would be unpopular in the Native Hawaiian community.

But the most explosive controversy surrounded the scathing 1997 "Broken Trust" essay that criticized the more than century-old practice of Supreme Court justices selecting trustees of the multi-billion dollar Bishop Estate, now known as Kamehameha Schools. The court responded with an extraordinary statement defending the practice, but voted 4-1 later that year to turn the appointments over to a probate judge.

"It was the right thing to do, and we did it," Moon said, adding that he didn't believe the controversy reflected poorly on the court.

Klein, the former associate justice, voted against relinquishing the court's role in picking trustees and said it was a difficult and distracting issue for the justices.

"We did discuss it. And it was, it was like somebody picked a scab and we started bleeding a little bit," he said. "But I think in the end we became a lot closer as a court as a result of that."

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

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