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The Honolulu Advertiser
Posted on: Monday, November 24, 2003

Justice moves slowly, painfully

 •  Liberal or conservative? Court defies easy labels
 •  Relationship with Lingle thaws after a deep freeze

Charts (open in new windows):
 •  The caseload: Appeals awaiting action
 •  The dispositions: Cases cleared

Second in a series

By Lynda Arakawa
Advertiser Capitol Bureau

The morning after his only son was killed in a construction accident, Charles Rapoza looked in the mirror and promised that justice would be done.

Charles Rapoza holds a picture of his son Charles, who was killed in 1994 in a construction accident. Rapoza has waited four years for the Hawai'i Supreme Court to decide on an appeal of the dismissal of a wrongful-death lawsuit he filed.

Tim Wright • Special to The Advertiser

"Little did I know that what I said at that time would be so difficult," Rapoza said.

Rapoza made that promise nine years ago. His appeal of decisions in Circuit Court concerning the wrongful death lawsuit he filed has been pending at the Hawai'i Supreme Court for four years. During that time, a witness died and the defendants' insurance company went out of business.

"Why can't this case come to a close and go away already?" Rapoza said. "It's in the Supreme Court's hands, they've got the ball in their field. I don't know what's taking them four years to read that case."

Rapoza's 20-year-old son, also named Charles, was electrocuted in 1994 while working at the Kalaoa View Estates subdivision in Kona. His family filed a lawsuit against the developer, the general contractor and the president of the company he worked for, alleging that he died because of dangerous working conditions.

A Big Island judge dismissed the case against the president, and a jury sided with the rest of the defendants in 1998. The judge also ordered Rapoza to pay approximately $200,000 in legal costs, although the defendants have not made an effort to collect. If Rapoza's appeal succeeds, he wouldn't have to pay.

Rapoza's case is one of more than 20 appeals that have remained unresolved at the Supreme Court for more than four years. It's an extreme example of the backlog that has increased since 1999, even though the filing of appeals has declined. As of Oct. 31, the latest period for which statistics were available, there were 375 appeals briefed and awaiting a decision by the high court.

About this series

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

Yesterday — Challenges facing the Hawai'i Supreme Court today

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

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

Wednesday — What's next for the court?

Chief Justice Ronald T.Y. Moon said he believes the Hawai'i Supreme Court stands up "reasonably well in terms of productivity," but acknowledged that the backlog is a problem.

"I am very sorry and understand how frustrating it is, and I feel the same frustration," Moon said about cases such as Rapoza's. "However, we are working as fast as we can with the resources that we have."

He said the court has requested more money and more staff. The court has received slightly more money in the past few years, and last session the Legislature provided money for two more Intermediate Court of Appeals judges.

With the increase in the backlog, the court has also been taking longer to decide appeals, according to court statistics. The median age of appeals — which is counted 60 days after the court is notified that an appeal will be filed — has fluctuated during Moon's tenure.

It 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 disposed of during the 2003 fiscal year was 415 days.

Roger Hanson, a consultant for the National Center for State Courts on appellate court issues, said many state supreme courts are troubled by case backlogs and struggle to minimize it.

He said it appears the Hawai'i Supreme Court's average length of time to dispose of a case is a little higher than average.

The Hawai'i Supreme Court's median age of appeals puts the high court "among the lesser expeditious courts," Hanson said. "I think the median time in most state supreme courts is going to be probably 365 days or less, so they're a tad over."

Currently, there is no independent law or court rule that specifies the total length of time for the Hawai'i high court to issue a decision on an appeal. The state Constitution requires the courts to "establish time limits for disposition of cases," but leaves it to the courts to develop rules on implementing that mandate.

The high court has adopted rules, but leaves out one segment of the appellate process and also allows for flexibility. Supreme Court Rule 9 says the high court should issue a decision "within 12 months after oral argument of a case or matter or ... within 12 months of the date oral argument would have been scheduled," but it adds, "insofar as practicable."

The rule, however, doesn't cover the period from the time a case is assigned to the high court or the Intermediate Court of Appeals to the time the court either sets oral argument for the case or decides it doesn't require one.

Charles Rapoza at the grave of his son, Charles. Rapoza's case is one of more than 20 appeals that have remained unresolved for more than four years in the Hawai'i Supreme Court.

Tim Wright • Special to The Advertiser

That length of time varies and is not bound by any limits.

Across the country, each state supreme court operates under different systems, rules and laws, so comparisons may not provide conclusions, but the number of opinions churned out by the Hawai'i Supreme Court lies in the middle of what is produced by a handful of five-member state supreme courts, according to statistics in a 2001 report by the National Center for State Courts, which collects and analyzes court information nationwide.

For example, in 2001 the Rhode Island Supreme Court issued 273 opinions and unpublished decisions. Utah's high court issued 157 and New Mexico issued 60.

In comparison, the Hawai'i Supreme Court issued 165 published and unpublished decisions in 2001.

But most of Hawai'i's decisions were shorter, so-called unpublished opinions, which apply only to the specific case, cannot be cited as legal precedent except in certain circumstances and are not published in law books. The majority of decisions in Utah and New Mexico were full opinions that do establish precedent.

Since The Advertiser began reviewing the backlog last summer, the Supreme Court has issued opinions in several of the cases older than four years. Those opinions include overturning the manslaughter conviction and ordering a retrial of Thomas Schillaci, who was charged in the 1996 shooting death of big-wave surfer William Simpson Jr. on Maui. Schillaci is still in prison for firearms convictions.

The high court also recently upheld a Circuit Court ruling that the University of Hawai'i must pay $30,000 to basketball fan Eric White for a racial slur uttered by one of the UH student managers during a 1995 game.

Although the Moon court has made inroads in reducing its pending cases in the late 1990s, the backlog has been steadily growing.

It's not a new problem. Chief Justice William Richardson, who served from 1966 to 1982, faced a huge backlog. At one point during Richardson's tenure, the number of pending appeals before the court rose from 121 to 778.

Richardson's successor, Herman Lum, who served as chief justice from 1983 to 1993, turned to expedient "memorandum" opinions, also known as unpublished opinions, to whittle away the number of pending cases before his court.

To deal with its backlog, the Moon court enacted "emergency" procedures: cutting back on oral arguments and issuing so-called summary disposition orders, one-paragraph or one-word decisions, which also are not published and do not create precedent.

The summary dispositions began in 1996, when there were more than 1,300 appeals pending, including 413 that were more than 2 years old and 33 more than 4 years old. The court also informally agreed to new internal rules on timeliness and other procedural protocols to decide cases more quickly.

In each of the next two years, the high court pumped out an extraordinary 470-plus opinions, and the total appellate backlog shrank in 1999 to 592 pending appeals, the lowest it has been during Moon's tenure. The court nearly wiped out its backlog that year, with fewer than 100 cases awaiting a decision.

But since then, the total case backlog for the supreme and appeals courts has grown to more than 1,000 as of the end of August. As of Oct. 31, there were 375 pending appeals ready for a decision by the Supreme Court.

The pending appeals ready for disposition by the Intermediate Court of Appeals have also increased since the late 1990s.

Moon noted that the court went through a transition in 2000, when Robert Klein resigned and left a vacancy for several months. Associate Justice Simeon R. Acoba Jr. replaced Klein in May 2000.

Moon and some lawyers also said the growing complexity of cases has an effect and that the appellate system needs more resources to deal with the backlog. Moon said the court has asked for more Intermediate Court of Appeals judges since 1992.

But while the case backlog has increased in Hawai'i, the number of appeals filed with the court has decreased since 1999 and the court's budget and staffing have been stable.

Moon said he wants to get all the justices to agree to the same internal procedures that existed in the late 1990s under the court's backlog reduction project and hopes to begin them in January.

He said since 2000 not all of the justices have approved of such procedures but would not say who has disagreed.

"Realistically, and candidly, if we can get the majority of judges to agree, then it may be implemented in that way," he said.

Some attorneys and other observers of the court attribute part of the problem to the increase in dissenting and concurring opinions since Acoba joined the court. They said the dissents and concurrences — many of which were by Acoba, with other justices occasionally joining him — take more time.

The number of opinions issued by the high court began to decrease in 1999, before Acoba joined the court, but that could also be because the number of pending cases at the time had also decreased.

The court issued 476 published and unpublished opinions in the 1998 fiscal year, an all-time high for the Moon court. That dropped to 357 opinions in the 1999 fiscal year.

In 2001, the court issued 165 opinions. It has increased slightly since then, even though the dissents and concurrences also increased.

Hanson said the number of opinions produced by the Hawai'i Supreme Court doesn't appear to be unreasonably low compared with other states, most of which are facing tighter budgets and growing caseloads.

He said many factors could throw off the productivity of a Supreme Court as small as Hawai'i's. A handful of "big blockbuster" cases, a growing length of opinions, and more dissenting and concurring opinions can slow the process, he said.

"In a group that small, a few tough cases can really throw a monkey wrench at them," Hanson said. "And then ... you start to disagree over them, then that's a double whammy."

For those who question the Hawai'i court's productivity, he said: "I would say just step back, things could be a lot worse. And when you look at the numbers for other states, then Hawai'i doesn't look so odd."

Some lawyers say one way justices could help whittle the backlog is to issue shorter opinions. While the Lum court at the time was criticized for its brief decisions, lawyers recognize that tactic helped to cut through the backlog.

David Callies, a University of Hawai'i law professor, said he doesn't see addressing the backlog and writing shorter opinions to be a "major goal of this court.

"I think its goal is to take an active role in a lot of things and if that takes a 30-, 40-, 50-page opinion, then the person who's supposed to write it will write a 30-, 40-, 50-page opinion," he said. "I guess on balance, if I were a practicing lawyer, I'd like fewer longer opinions and more opinions and stuff getting out a little faster."

Former associate justice Klein said the court just doesn't have "sufficient manpower."

"As a court, you're just overwhelmed with work," he said. "It's really actually surprising that the court can turn out so many opinions."

David Louie, former Hawai'i State Bar Association president, said it's difficult to judge a Supreme Court by the number of opinions it issues.

"It's not a cookie-cutter operation," he said. "You can't say, well, if you got out 10 opinions, that's twice as good as getting out five opinions. Because these are sometimes very complex matters, very complicated matters, not everything is the same. I don't think you can easily evaluate it in those terms."

The high court sets priorities for which appeals are handled first. The court's first priority is criminal appeals in which the defendant could be released from prison. Also getting top priority are child custody matters related to terminating parental rights.

Those are followed by appeals classified as priority by statutes, including cases relating to the Hawai'i Tourism Authority and the Hawai'i Community Development Authority as well as temporary court orders involving labor disputes.

All other civil cases and criminal cases in which the defendant is not in prison fall under the last priority.

While the bar association is reviewing the court's operations, it is clear that not every lawyer is troubled by the pace of its decisions.

"My feeling about the Supreme Court is that they work very hard," said Honolulu attorney Howard Luke. "I think if we look at the body of work produced by the Supreme Court, one cannot say anything other than ... there's a lot of penetrating legal analysis."

Labor attorney Herb Takahashi, whose appeals on behalf of public employees questioning the legality of privatizing public services have been pending for more than four years, said he doesn't think the wait has been unreasonable.

"I don't consider the delay to be inordinate, given the complexity of some of the issues and the fact that they're not major policy" questions, Takahashi said. He also said the high court has done a good job in prioritizing cases and is sensitive to the cases that raise urgent matters.

As an example, Takahashi noted Honolulu Mayor Jeremy Harris' resign-to-run legal dispute last year, in which the high court overturned a Circuit Court decision that found that Harris should have resigned when he filed campaign organizational papers to run for governor. The Supreme Court issued the ruling less than two months after the Circuit Court decision.

But that means little to Big Island resident Charles Rapoza, who is still waiting for the Supreme Court to resolve his case.

"I just want this thing over with," he said. "The initial part that my son is dead — that's a shock and I'm dealing with that. But to have this thing dragged out. It's like somebody dragging you through a wringer."

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

[Posted on November 24, 2003 at 11:55 am HST]
Lynda has the grace to probe with a laser beam focus, garner essential bulky data & breaking it down to digestable comprehensive parts. Truly magnificent talent of journalistic writing at its finest.
Quinn Nii
Hawaii Kai