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The Honolulu Advertiser
Posted on: Tuesday, November 25, 2003

Justices' tense relationship 'needs some work'

 •  High court keeps low profile

By Lynda Arakawa
Advertiser Capitol Bureau

Associate Justice Simeon R. Acoba, Jr.'s blunt written opinions that criticize the high court's policies on oral arguments and published cases are often cited by lawyers when they talk about tensions among the Hawai'i Supreme Court's justices.

Chief Justice Ronald T.Y. Moon says justices strive to be civil, but concedes discussion "does sometimes get emotional."

Eugene Tanner • The Honolulu Advertiser

Some believe that Acoba's pointed written remarks may have been the catalyst for occasional public sniping among some of the five justices.

But Chief Justice Ronald T.Y. Moon and some lawyers said while justices have disagreements, those can be expected in any court and in any work environment. He said the high court continues to function well.

The issue of collegiality among the justices isn't new. Former associate justices Frank Padgett, who served from 1982 to 1992, and Edward Nakamura, who served from 1980 to 1989, were considered staunch adversaries.

The current tension appears to have started when Acoba came on the bench three years ago.

Lawyers noticed more dissenting and concurring opinions after Acoba's arrival, a departure from the high rates of unanimous opinions the Moon court had produced. Concurring opinions agree with the majority opinion's conclusion, but the reasoning differs.

Court statistics show 93 percent of the Supreme Court's opinions were unanimous in the fiscal year ending June 2000. Unanimous opinions rose to 98 percent the following year and dropped to 67 percent in fiscal 2002.

But the language in the decisions, including Acoba's criticism of the court, is what raised eyebrows in the legal community.

"Acoba was very vocal on it as soon as he came on the court," said state Public Defender John Tonaki. "It wasn't surprising, but for a new justice to take that strong of a stance, it was an eye opener."

In two consecutive cases in 2002, Acoba attached to his opinions virtually identical appendices that argue the court should be publishing more decisions. Former Justice Mario Ramil, who served from 1993 to 2002 and often shared Acoba's views, joined in those opinions. The appendices also criticize the court's practice of not publishing opinions unless the majority of justices agree to do so.

"Long-term dangers lurk in the silencing of discourse and debate," Acoba wrote in the appendix. "It has been found that unpublished opinions too easily hide hidden agendas or a lack of reasoning behind an opinion."

Some lawyers were pleased by Acoba's opinions and found it admirable that a justice was finally airing concerns attorneys privately shared. Others felt his language was a caustic personal criticism of Moon's administration, and some even speculated that Acoba's comments in the two consecutive cases were strategically timed to block Moon's retention, which was being considered at the time by the Judicial Selection Commission.

Acoba said about that speculation: "I can answer that as absolutely not.

"I think it's clear that in any court, no one is going to ... write something like this unless there has been considerable discussion about it," Acoba said. "In the sense of collegiality, we should always try to resolve things first.

"And ultimately though, each individual justice has an obligation to follow through on the responsibility that he has to do what he or she thinks should be done in terms of the process."

Moon said he doesn't have any hard feelings about Acoba's opinions, and that justices have a right to write what they want.

Still, some lawyers who observe the court closely say some opinions hint of personal and professional differences and that a rift appears to exist with Acoba on one side and Moon and associate justices Steven H. Levinson and Paula A. Nakayama on the other. Associate Justice James E. Duffy Jr. only recently joined the court.

"You don't have to go and talk in the hallways and gossip with the justices to find out they're not getting along," said Peter Esser, a lawyer who specializes in appeals. "You can go to the published opinions. ... There is a lot of aggressive, impolite language, especially on the function of the court itself."

Honolulu Prosecutor Peter Carlisle, who has publicly criticized the court's decisions in some criminal cases, agreed.

"If you read the decisions you're left even more so with a feeling that it's personal beliefs rather than legal precedent that is ruling the day," he said.

Former Gov. Ben Cayetano, who appointed Acoba to the high court and considers him a friend, supported Acoba's views and talked about the value of oral arguments and published opinions.

"I think Justice Acoba believes the court's prohibition on oral argument and its reliance on memorandum opinions are a disservice to the parties who seek justice from the Supreme Court," said Cayetano, who is an attorney. "In this context, those who criticize Justice Acoba for disrupting the court's 'collegiality' have their priorities mixed up."

An opinion now legendary in Hawai'i legal circles is last year's State v. Yamada decision, in which the majority called Acoba's concurring opinion "puerile" in a footnote. One dictionary defines puerile as "childish, silly, immature."

Levinson wrote the majority opinion, which was joined by Moon and Nakayama.

"That's really not called for," said Padgett, who was known for his abrasive style. "You don't need to do that sort of thing. There are bound to be disagreements, and you may have all sorts of thoughts about why ... this person isn't agreeing with you, but you should stick to the law."

In a remarkable admission for an appellate judge, Moon said the use of the word was a mistake. Both he and Levinson said it won't happen again.

Levinson said he was commenting on Acoba asserting that the majority opinion had stolen Acoba's idea.

"And I wrote with the concurrence of the members of the majority that that assertion — the assertion, not the person — was childish," Levinson said. "I think 'puerile' is a nice word, so I used it. Given what I think is the exaggerated consternation that the use of that word caused, I've made the decision that I'm not going to do that again."

Acoba said the use of the word was "regrettable."

"I think that ... it's important to keep our differences on a professional level and I hope to work with everyone in a collegial way on the court. ... I guess what's regrettable is the effect that the comment has had with respect to how the court is viewed," he said.

Moon defines collegiality as "you will respect the other's work."

"That you are able to civilly discuss issues and matters, and we try our best to do that, we strive for it," he said. "But sometimes there are emotions because of the position that they believe in to such a great extent and it does sometimes get emotional."

Intermediate Court of Appeals Chief Judge James Burns said of the court's collegiality: "It needs some work.

"They're all smart. They're very hardworking, they really are," he said. "They're really interested and dedicated. Any of their failings is not because they don't care. We just wish they'd get it together or do it a little better. ... And find a better way to resolve their differences."

Still, some lawyers, such as University of Hawai'i law professor Jon Van Dyke, say the issue of the court's collegiality is overblown and that justices are expected to have heated disagreements. They point out that it's nothing compared to the barbs exchanged in U.S. Supreme Court opinions.

"This is part of the judicial process," Van Dyke said. "And if Justice Levinson thinks that Justice Acoba's reasoning is puerile he should say that. ... And to the extent that Justice Acoba thinks that the court has been mishandling unpublished opinions or hasn't had enough oral arguments, he's new on the court so it's appropriate that he comes up with new ideas, and obviously there's going to be resistance because the other group has been together for awhile.

"So this sort of tension is normal and it's useful. It's good to have new blood and new justices challenging the old ways."

Jeffrey Portnoy, an attorney who has represented media organizations including The Advertiser on First Amendment issues, said allegations about justices not getting along is "interesting but of no significance."

"I don't think they're so caught up in personal animosity that they can't do their jobs," he said.

Esser, however, has some concerns.

"Is the Hawai'i Supreme Court still publishing brilliant, insightful decisions? Yeah," he said. "But if 'puerile' is in a footnote, and that's my case, am I concerned that maybe the court is distracted? Yeah, a little bit."