High court keeps low profile

By Lynda Arakawa
Advertiser Capitol Bureau

The rarity of the Hawai'i Supreme Court's open sessions and its reliance on unpublished opinions are easily among the greatest concerns of Hawai'i lawyers.

Associate Justice Simeon R. Acoba Jr. has been a critic of the court's policies on published cases, writing in 2002 that "unpublished opinions too easily hide hidden agendas or a lack of reasoning behind an opinion." Rebecca Breyer • The Honolulu Advertiser

Oral arguments, in which lawyers representing both sides in a dispute have 30 minutes to make their case and answer questions from the Supreme Court justices, have become a rarity in Hawai'i. At one time, the Supreme Court heard an average of 15 oral arguments a month, but in the past four years, the court has heard oral arguments a total of 12 times.

Lawyers and others say oral arguments in hearings are valuable because they allow the court and lawyers to have a dialogue that is open to the public. They also say written opinions that are published in law books are important because they give the legal community and other judges legal guidance.

Supreme Court Chief Justice Ronald T.Y. Moon and others agree that oral arguments and written opinions are important, but Moon said he has been trying to balance their value against the need to review more cases and get them decided faster.

Acoba, who joined the court in 2000, surprised lawyers when he began criticizing the high court's policies on oral arguments and unpublished opinions in his written decisions.

Moon cut down on oral arguments and published opinions in the late 1990s in what he called "emergency procedures" to help whittle the growing case backlog.

Some lawyers concede that it is unrealistic for the high court to hold more oral arguments and publish more decisions while trying to keep the number of cases from clogging the system. But others, including Acoba, argue that the Supreme Court's "emergency procedures" hurt the judicial process.

Though the number of oral arguments has declined significantly, the court began hearing "expedited" oral arguments — which are half as long — for single-issue, less complex cases. The court held expedited arguments in 42 cases in fiscal 2003.

"That is sort of like a pilot program to try to see if we could resolve more cases faster," Moon said. "We're going to be discussing that to see how it's been working."

Lawyers and others say it's an important element that increases the communication between attorneys and justices.

"That interaction, I think, would result in a deeper understanding between the lawyer and the judges," said University of Hawai'i general counsel Walter Kirimitsu, a former Intermediate Court of Appeals judge. "From my personal experience, when I go through oral arguments and listen to the questions and answers, it influenced me to look at the case in a different way."

Acoba said it's important for the public to see the court at work. The sessions are held on the second floor of Ali'iolani Hale, makai of the Kamehameha statue on King Street.

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

Statistics do not appear to show a connection between the number of opinions issued and the number of oral arguments that are 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 won't reduce the backlog but that it will keep the problem from worsening. And those familiar with the process say it takes more time for justices to prepare for oral argument.

Chief Justice Ronald T.Y. Moon, third from left, cut down on oral arguments and published opinions in the late '90s to help reduce a case backlog. Rebecca Breyer • The Honolulu Advertiser

"Oral arguments are exciting. I think it would be nice to have more of it. I also know that if (lawyers) are complaining about the backlog, more oral argument is not going to help because the amount of time and work that goes into preparing for an oral argument is just awesome."

Acoba said lawyers involved in expedited oral arguments thanked the justices for the opportunity to argue their cases before the court, even though they had less time than in more complex cases.

"It put us in touch with cases you never really pay much attention to ... because they're involved in the day-to-day legal problems; they're not involved in the big issue cases," Acoba said.

There is also controversy over the Supreme Court's use of summary disposition orders, which are one-paragraph or one-word decisions, and memorandum opinions. Both are not published in law books, are not binding on lower courts and cannot be cited in cases except in certain limited circumstances.

Herman Lum, chief justice from 1983 to 1993, instituted issuing unpublished memorandum opinions to deal with the case backlog. Moon started summary disposition orders in 1996, also to cut down the backlog. Both the Intermediate Court of Appeals and the Hawai'i Supreme Court issue the majority of their rulings via memo opinions and summary disposition orders.

"Unpublished opinions are frustrating because we operate by way of precedents — that's the way our system works," said University of Hawai'i law professor Jon Van Dyke. "We teach our law students from previous cases, and we assume that every case should have relevance to other similar cases."

Former Hawai'i State Bar Association president Paul Alston said issuing summary disposition orders is fine for certain cases where there's nothing noteworthy or significant.

But he added: "I think it's a big mistake to have unpublished memorandum opinions in a place as small as Hawai'i because we have so little case law to guide people that anything the court writes that explains how the law applies in a new fact pattern will be helpful to the bar, to understand where the court's going."

Acoba said not publishing decisions is a way to duck or not decide the hard questions because it's not binding in the future. "To me, in a democratic society, we should be a lot more accountable for the decisions that we make. ... We should put the issues out there for people to see and so people can debate about it."

But Moon said the high court has published every decision that warranted publication.

"I am aware that some members of the bar disagree, but I am satisfied that our assessments of cases, proposed dispositions and determinations about publication have been appropriate," he said. "Individually, we each might have wanted some other dispositions published, but I am convinced we have made appropriate decisions about publication. Of course, we could fill the books by simply publishing everything we write, but if we are saying the same thing over and over, that would not contribute to anyone's understanding of the law."

Roger Hanson, a consultant to the National Center on State Courts on appellate court issues, said the number of published opinions by the Hawai'i Supreme Court "is a sign of judiciousness."

While still less than in the mid- to late-1990s, the court has been issuing more published decisions in the past few years. It issued 67 published opinions in fiscal 2003, representing about 34 percent of all opinions that year.

Hanson said he wouldn't expect more than 100 published, fully reasoned opinions by a five-member supreme court in a year.

"I think that what you have seen over the last 150 years is that the number has always been going down; it hasn't been going up," Hanson said, referring to a national trend. "The courts are choosing their cases much more carefully."

Former Hawai'i State Bar Association president James Kawachika was also sympathetic to the backlog.

"In an ideal world, I guess as practitioners we would all want to have oral argument, we'd all want lengthy published opinions in our cases, and we want our appeals to be disposed of in the shortest time possible," Kawachika said. "But as a practical matter, the cruel reality is that you can't have all of those."

Kawachika was among a committee of lawyers, judges and former judges who suggested, among other things, that attorneys be allowed to cite unpublished decisions in any actions or proceedings, with the understanding that those decisions will not be binding. The Hawai'i Chapter of the American Judicature Society's committee also recommended that the court allow any party or interested person to apply for publication of an unpublished opinion.

"The committee felt that you have this whole body of unpublished opinions out there that in some instances may have some relevance to the case that you're handling and yet the practitioners are precluded from bringing that to the attention of, say, a circuit court judge," Kawachika said. "Under our present rules no lawyer can do that without being sanctioned."

The committee's report, which was completed last year, noted the legal community has a problem particularly with "the inability to cite memorandum opinions despite the fact that these opinions appear to be of substantial length and content and often cite other case law as precedent for the conclusions."

The proposal was referred to the Hawai'i Supreme Court's appellate rules committee — composed of judges and lawyers — which recommended that it not be adopted. The Supreme Court is accepting written public comment on the proposal no later than Dec. 29.

Acoba said that effort from the American Judicature Society Hawai'i Chapter shows "how desperate the lawyers have become" and is evidence that the court is not providing enough legal guidance.

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

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