REPORT OF HAWAII STATE BAR ASSOCIATION

SPECIAL COMMITTEE ON APPELLATE ISSUES

December 2003

Members: James J. Bickerton, Chairperson Jean Aoki Mark D. Bernstein Ellen Godbey Carson Douglas A. Crosier Beatrice (Beadic) L.K. Dawson Samuel P. King, Jr. Petcr J. Lenhart Howard K.K. Lukc Scott K. Saiki TABLE Of' CONTENTS

I. HISTORY & SCOPE OF THE SPECIAL COMMITTEE ON APPELLATE ISSUES 1 A. History 1 B. Scope and Purpose 2 C. Membership ofthe Committee 4 II. THE COMMITTEE'S WORK 5 III. SUMMARY OF RESPONSES FROM THE BAR 8 IV. THE PROBLEM OF APPELLATE CASE BACKLOG AND DELAY 11 A. The Scope & History of the Problem 11 B. Source of the Backlog Problem 13 C. Consequences of An Inconsistent Clearance Rate .....•...... 20 D. Excessive Backlog Equals Justice Delayed 21 E. Causes ofthe Clearance Rate Problem 23 1. Non-Case Workload 23 2. Problems of Efficiency 24 3. Opinions are Getting Longer 27 4. Additional Factors ...... •...... 28 F. Areas Where the System May Be Improved 29 1. Timeliness Standards 30 2. Specific Numeric Targets for Decisions By Justices 30 3. Limitations on Published Pages 31 4. Leadership and Teamwork 31 5. Commitment to Backlog Elimination nt'th'nl In a ~uefiIned ~.lime P"enou . 34 V. BAR MEMBER CONCERNS REGARDING MATTERS OTHER THAN APPELLATE BACKLOG AND DELAY ....•..... 36 A. The Perception ofLack of Collegiality in the Supreme Court 36 B. The Need for Adequate Explication of the Law 38 C. The Need for Transparency in Certain Internal Procedures 42 1. Selection of Substitute Justices 42 2. Assignment of Cases to ICA and for Oral Argument ...... •...... 43 a. Selection for Oral Argument ....•...... 43 b. Assignment to ICA 45 3. Public Availability of Case Information and Statistics ...... •...... ••.•...... 48 VI. PUBLIC CONFIDENCE IN THE APPELLATE COVRTS .•.•.... 52 VII. THE IISBA'S RELATIONSHIP WITH THE COURTS ...... •. 55 VIII. RECOMMENDAnONS 57 A. Recommendations for our Appellate Courts 57 B. Recommendations for our Hawaii State Bar Association 61 C. Recommendations for Bar Members ...... •...... 61 D. Recommendations for Other Bodies ...... •...... •.... 62 APPENDIX A APPENDIXB

ii I. HISTORY & SCOPE OF THE SPECIAL COMMITTEE ON APPELLATE ISSUES A. History Seven months ago, in May 2003, the Hawaii State Bar Association ("HSBA") Standing Committee on Judicial Administration, at the request ofthe HSBA's President, authorized the creation of a Special Committee on Appellate Issues to provide an independent review and perspective on the performance ofthe appellate courts in Hawaii and, where appropriate, to make recommendations for improving that performance. The fonnation ofthe Special Committee on Appellate Issues ("the Committee") followed several years ofrising levels ofconcern among HSBA members on such issues as appellate delay, the absence oforal argument, the publication or non-publication ofdecisions, the lack oftransparency and predictability ofthe processes involved in selecting who will decide a case, and perceptions ahout whether the memhers ofthe appellate courts are working effectively as a team despite personal and philosophical differences. This discussion became more public and spread outside the Bar earlier this year when the Governor commented on the debate that had been simmering within the Bar and expressed the view that lawyers, as the citizens most familiar with the workings ofthe appellate system, have a duty to help safeguard the system. With the public's eye now on the Bar, members could no longer afford to merely debate or speculate on the issues; some serious investigation and recommendations were required. Against this backdrop, the HSBA President called upon the Bar Association's Standing Committee on Judicial Administration to authorize the formation ofthe Committee which would investigate and address the concerns expressed by HSBA members and their clients. Over the last seven months, the Committee met on a weekly basis to gather information from various institutional sources and interview knowledgeable members ofthe legal community. Those with whom the Committee spoke included past and current members and staffofthe appellate courts, as well as knowledgeable practitioners with appellate experience. Statistical data on caseload and disposition rates covering the last decade was obtained from the Hawaii Supreme Court and other sources. The Supreme Court provided written responses to some written questions about the process. The Committee studied aspects ofthe appellate process in other states and gained knowledge about national standards for the performance ofappellate courts. The Committee contemplates that this report is merely a beginning for the long range goal of improving the performance ofthe appellate courts, a goal the Committee shares with the appellate courts, the Bar and the public as a whole. Although its conclusions and recommendations are presented to the Hawaii State Bar Association for its consideration and action, the Committee's report should also be of use to the appellate courts in providing an independent perspective on the problems that they contend with and to the public at large in providing a more detailed understanding ofthe appellate process. The Committee believes that the need for a Committee like this one will arise from time to time. Moreover, while the situation may not call for a permanent standing committee on appellate issues, there is more work to be done. Accordingly, fhture Bar Presidents and Boards should not hesitate to establish special committees like this one when they detect rising levels ofconcern among Bar members over appellate issues or, alternatively, make the subject ofthe appellate system a permanent part ofthe Judicial Administration Committee's work. It is the Committee's hope that other HSBA members will be willing to serve in the future to build upon the work done in 2003. B. Scope and Purpose Thc Committcc hcld its first meeting on May 21, 2003 and defined its "scope and purpose" as follows: The Committee's purpose is to address concerns expressed by the Bar and the public regarding the impact that various aspects ofthe appellate process are having on the public's perception ofthe Courts. These conccrns include delays in rendering decisions, and the limited number oforal arguments and published opinions. The Committee recognizes that these long-standing concerns

2 require approaches and resolutions that will continue beyond any particular administration and will provide the Bar and the public with enhanced confidence in the appellate system for many years to come.

Accordingly, the Committee seeks to determine the concerns ofthe Bar's members and their clients, ascertain whether those concerns are matters offact or perception, and determine whether there are any actions within the authority ofthe HSBA that can be taken to resolve those concerns, and, as necessary, to repair negative perceptions. The focus ofthe Committee will not be on criticism or blame, but rather on improving the system so as to obviate criticism. To this end, the Committee's objective will be to make concrete and practical proposals and suggestions for ways in which the administration ofthe appellate process and the public's perception of it can be improved, whether by rule changes, legislation, improvements in resources and funding, or otherwise. The Conunittec recognized early on that the issues the appellate courts face are pressing and of long standing. They need careful study but at the same time need early answers. With this in mind, the Committee resolved to complete its report by the end ofthe year. The Committee focused the majority of its study and review on the case backlog and delay in rendering appellate decisions because its preliminary conclusion was that many ofthe other concerns raised by Bar members are integrally related to this issue (e.g., the absence oforal argument and the use of different types ofnon-published decisions). The Committee has sought to adhere to its self-imposed "scope and purpose" by presenting empirical information, making judgments on the data only when thcrc was broad consensus, and making forward-looking recommendations to improve the perfonnance ofthe appellate court system. In addition to its self-imposed time limits, the Committee also

3 considered the proper role ofBar members in relation to the courts (of which they are all officers) and, in particular, to the Supreme Court, which sits above all in the field ofIaw. The Committee was particularly mindful ofthe paramount need to maintain the independence and integrity ofthe appellate courts, even while studying their problems. Accordingly, there were certain matters that the Committee deemed to be outside its purview even though they may be of concern to Bar members, such as the quality ofthe courts' decisions, comment or criticism on individual cases, questions ofjudicial philosophy, and the personal relationships between particular Justices and Judges. C. Membership of the Committee Members ofthe Special Committee on Appellate Issues were appointed by Hawaii State Bar Association President Douglas A. Crosier with the concurrence ofBeatrice (Bcadie) L.K. Dawson, the Co-chair ofthe Bar Association's Standing Committee on Judicial Administration. The Special Committee was comprised often individuals: nine lawyers ami a community representative. These individuals represented a cross section ofareas ofpractice, with wide experience in the criminal, civil and family law fields, as well as experience working with the Courts, the Legislature, the Bar and the community on issues ofpublic importance. Chairperson James J Bickerton has twenty-one years ofexperience emphasizing eivillitigation, including appellate litigation, is a partner in the law firm ofBickerton Saunders & Dang and fonnerly served as a Director ofthe Hawaii State Bar Association, a Governor ofthe Consumer Lawyers of Hawaii and a member ofthe ChiefJustice's Committee on the Adoption ofthe Model Rules of Professional Responsibility; Jean Aoki is a member and past president ofthe League ofWomen Voters of Hawai i, and co-chaired the League's recent study and report on the independence ofHawaii's judiciary; J\4ark D. Bernstein is a sole practitioner who has practiced law for more than twenty-three years in commercial litigation and appellate work, and is known for his experience in cases involving issues of intellectual property;

4 Ellen Godbey Carson is a director ofAlston Hunt Floyd & lng, has practiced in Hawaii since 1987 in a broad range ofcivil litigation, and is a past president of the Hawaii State Bar Association; Douglas A. Crosier has twenty-five years of litigation experience, is a partner in the law firm ofRush Moore Craven Sutton Morry & Beh and a Director ofthe Disciplinary Board ofthc Hawaii Supreme Court, and is the current Hawaii State Bar Association president; Beatrice (Beadie) L.K Dawson is the current Co-Chair ofthe Hawaii State Bar Association's Standing Committee on Judicial Administration, of counsel to Dwyer SchraffMeyer Jossem & Bushnell, President ofthe Friends of the William S. Richardson School of Law, and a longtime community activist and successful businesswoman; Samuel P. King. Jr. has twenty-nine years ofcriminal and family law experience and is a past President ofthe Hawaii Association ofCriminal Defense Lawyers; Peter 1. [,enhart has eighteen years ofcorporate and real property practice, and is currently the Chair of the Business Section ofthe Hawaii State Bar Association and an instructor in the Masters ofBusiness Administration Program at the University of [-Iawai'i Manoa Campus; Howard KK Luke has twenty-six years of legal experience, is a prominent criminal defense lawyer, and is currently a Director ofthe Hawaii State Bar Association; Scott K Saiki has over a decade of legal practice, is ofcounsel to the law firm ofBickerton Saunders & Dang, and currently serves as the Majority Leader ofthe House ofRepresentative 0 rthe State ofHawaii. II. THE COMMITTEE'S WORK Facing a self-imposed deadline ofreporting to the Bar and the public by the end of 2003, the Committee has met weekly since May 2003, gathering infomlation from a broad range of sources and seeking to be as inclusive as possible. Efforts were made to obtain information from interested and affected parties including the Hawaii Supreme Court, the Hawaii Intermediate Court of

5 Appeals ("ICA"), present and former Justices and Judges, administrative staff of the Hawaii Supreme Court, the Center For Alternative Dispute Resolution, as well as all active HSBA members including former HSBA Presidents. A delegation from the Committee held an introductory meeting with the current Justices ofthe Hawaii Supreme Court to explain the Committee's scope and purpose and to extend an invitation to each sitting member ofthe Court to meet with the Committee to provide infonnation. While none ofthe current members ofthe Hawaii Supreme Court accepted the Committee's invitation to meet with the Committee, the Court did agree to provide responses to written questions. It is regrettable that the Committee was not able to have a more open dialog with the Court in preparing this report because the Justices are, after all, the ones most familiar with the problems the Court faces. The Committee hopes that some ground rules and protocols can be established in the future to permit greater communication. Dialog and openness, ifhandled with due regard, will serve to strengthen the appellate system and the public's confidence in it. Committee members were able to speak with other infonned sources, including retired Justices, other appellate judges, appellate practitioners, and former law clerks. To facilitate a frank and candid discussion with those it interviewed, the Committee decided not to create a record ofits interviews or deliberations and to keep the identity of interviewees confidential. The Committee recognized that keeping the Committee's sources confidential can be challenged because it potentially allows unfounded criticism and makes it more difficult to judge the reliability ofthe Committee's conclusions. However, the Committee concluded on balance that the benefits ofthe approach outweighed the drawbacks. As an additional safeguard, the Committee sought to ensure that the views ofthose it interviewed were supported by other data. The Committee composed a questionnaire containing five general questions. In early June 2003, this questionnaire was e-mailed to all members of the Hawaii State Bar Association with listed e-mail addresses for response. The questionnaire was also posted on the HSBA website with an opportunity for

6 members to respond. Seventy-seven (77) members ofthe Bar provided confidential responses to this questionnaire. These results were tabulated and the responses are summarizcd and discussed in Section III ofthis Report. The Hawaii Supreme Court assisted the Committee by preparing written responses to specific written questions about the appellate system and answering written follow-up questions. This method had serious limitations, particularly in helping the Committee gain an understanding ofthe administrative and other non-case workload that individual Justices face. Nevertheless, it was helpful to have this information which could not have been obtained without the Court's cooperation. Finally, the Committee studied the wide hody ofpublicly available information about the appellate process both here and nationally. These included the Hawaii Supremc Court's published statistics on case management, the Court's case records, twenty years ofpublished decisions, publications on national standards for appcllate courts, and published reports on appellate systems ofsister states. While the Committee gathered enough information to prepare a useful report by year end, it was unable to answer some ofthe questions it posed for itself, such as a detailed picture ofthe "aging" ofappellate cases and a more detailed picture ofthe performance ofindividual Justices with respect to non­ published decisions. This failure was primarily the result of difficulty in accessing the data from the outdated computer system our appellate courts are constrained to use due to budgetary reasons. Nevertheless, the Committee believes that the data can be extracted manuaIIy from the courts' records and has undertaken the task of doing so. Consequently, the Conunittee plans to publish a briefsupplemental report in the first halfof2004, when it completes the collection and analysis of that additional data. The Committee recognized that the concerns it was addressing arise from a combination of factors and will correspondingly require a combination of solutions. As one example, the Committee studied the appellate mediation system to see whether it could be given the capability to increase the case disposition rate

7 and perhaps provide a vehicle for Bar members to volunteer practical assistance to the appellate courts (e.g., as mediators, coordinators, or researchers). After gathering information, the Committee spent considerable time discussing it, identifying problem areas, and, more importantly, considering solutions and improvements for the appellate system. In this task, the Committee looked to the "Appellate Court Performance Standards And Measures" published by the National Center for State Courts ("NCSC"). This report was drafted by the "Appellate Court Performance Standards Commission" which was charged by the NCSC with articulating, organizing, and disseminating performance standards for the nation's state appellate courts. The NCSC has articulated the need for appellate courts to be cognizant of, and sensitive to, their responsibilities to serve the publie trust. The NCSC has stated: A court does differ from a business in that it is a public institution in a democratic system. The court belongs to the people just as the legislature does or executive agencies do. All three branches ofgovernment have laced the issue ofbuilding and retaining the public's trust and confidence in its institutions. One significant way to make public institutions accessible is to demystifY their processes and procedures. A court should provide information concerning its administrative processes and assist its constituents in building appropriate expectations as to how long it takes a case to be processed, how a case is assigned to a justice in the majority for the rendering ofthe court's decision, and how that decision is processed for publication. NCSC, Operational Review ofthe New Hampshire Supreme Court, page 4. With this as guidance for its work, the Committee undertook its examination ofthe Hawaii appellate courts. III. SUMMARY OF RESPONSES FROM THE BAR To detennine whether the issues identified by the Committee were of current concern to the Bar membership and to determine whether there were other

8 perceived problems that the Committee had not identified, the Committee asked the HSBA President to send a brief questionnaire to Bar members bye-mail. The e-mail asked for responses to the following questions: I) Do you bclieve there is an unreasonable backlog ofcases on appeal?; 2) Are you satisfied or dissatisfied about the length oftime for the disposition ofcases you have had on appeal? Please explain; 3) Are you satisfied with the methods utilized to dispose ofcases on appeal? E.g., memorandum opinions and summary disposition order. Please explain; 4) Is the Hawaii Supreme Court effectively administering the court and legal system? Please explain; and 5) Ifyou have any other concerns or comments, please explain. The Committee received 77 responses in 94 pages. The Committee heard from a broad spectrum ofBar members, including prosecutors, criminal defense attorneys, civil attorneys, attorneys of all ages and experience, neighbor island attorneys, and people who have worked in the appellate COUltS in some capacity. Some ofthe most interesting comments came from the people who have worked most closely with the appellate courts, such as law clerks and attorneys with substantial appellate experience. Only two ofthe respondents had no complaints about any aspect of the appellate process. All other substantive responses were critical about one issue or another. Of course, this sampling ofthe Bar was not a random or "scientific" sample. However, even with this caution, the survey suggests many members ofthe Bar have serious concerns about the appellate process. The breakdown of issues discussed in the responses is as follows: Topic Problem Problem Yes No 1. Delays in disposition/backlog 40 4 2. Overuse ofnon-published decisions 21 3 3. Lack oforal argument 8 1

9 4. Case re discipline of Staffattorney 8 1 5. Length ofOpinions 7 6. Court isolated from Bar 4 7. Bishop Estate trustee appointments 4 8. Political nature ofdecisions 4 9. Administration ofcourts 4 2 10. Collegiality among Justices 3 3 11. Inconsistency ofopinions 2-3 2-3 12. Interaction between Sup. Ct. and ICA 3-4 13. Perception ofa risk ofretaliation against those who raise concerns 2-4 14. Slow payment/low rates for court-appointed attorneys - Criminal & Family Court 3 15. Appointments to district judgeships 3 (Some of the above numbers are expressed as ranges because the concern was not mentioned as a separate concern but was an issue mentioned in connection with another expressed concern). Other issues mentioned by individual writers are set out in Appendix A. Bar members did not merely offer critical comments, but also gave comments and suggestions on possible solutions. The e-mail responses included the following suggestions to alleviate problems: 1. Aspirational time and page limits to get opinions out; 2. More judges at the lCA level; 3. All cases go through ICA first; 4. Greater use ofmediation on appeal; 5. Better appellate practice by appellate attorneys; and 6. Begin using oral argument again. As will be seen further in this Report, many orthe themes discussed in the Bar members' responses came very much to the fore in the Committee's subsequent work.

10 IV. THE PROBLEM OF APPELLATE CASE BACKLOG AND DELAY A. The Scope & History of the Problem The Judiciary ofthe State of Hawaii has declared that the strategic mission ofthe Hawaii Courts ofAppeal is the "timely disposition 0/cases including resolution o/particular dispute.5 and explication ofapplicable law. "I (Emphasis ours). The available statistics show that the Hawaii appellate courts are failing to achieve this critical mission. Over the past three years, the appellate courts have disposed of417 cases/ewer than the number ofcases filed during that same three-year period. 2 This has added an average of 139 cases per year to the 592 cases which remained for disposition as ofJune 30, 1999. Thus, the case backlog now stands at approximately 1000 cases, a 69% increase since FY 1999. Although the backlog is the highest it has been for the past seven years, the period of FY 1994-1996 also saw high backlogs of 1000 cases or more, with a peak of 1337 in FY 1995-1996. The problem ofthe 69% backlog increase over the past three years does not result [rom an increase in the number o[ filed appeals. The annual number ofappeals generally remained fiat from 1993 to 2000 and has actually declined in the 2000-2003 period. Looking at the overall ten-year period from 1993 to 2003, for the first five years ofthat period, there was an average of 800 appeals filed each year.' 10 the second five years, the average number was 797, with 766 in FY 2001 and 757 in FY 2002. 1n FY 2003, the number declined to 660. The Committee also looked in some more detail at the figures for FY

IThe Judiciary, State ofHawaii, 2002 Annual Report.

2Memorandum dated September 26,2003, from Supreme Court to HSI3A Special Subcommittee on Appellate Issues.

3 These figures do not include "original cases," such as writs ofmandamus or disciplinary proceedings, that technically are not "appeals." Such cases generally range from 30-60 per year.

11 2000,2001, and 2002 to detcnnine how many ofthe appeals filed in those years were cases that were being reopened (e.g., following an earlier procedural dismissal and re-filing). It appears that about 5% were "re-opened" cases. Thus, the actual number of"new" appeals in those three years averaged only 739 per year. Furthennore, the last decade marked the introduction of a coordinated appellate mediation program. Although only 5 to 10% ofcases are put into the program, it has demonstrated a good resolution rate with the cases assigned. Approximately 50% ofthe cases assigned to the program are successfully resolved by the mediators and the parties. In raw numbers, this only translates to 15 to 30 settlements per year, but it has served to reduce the impact ofthe caseload increase and demonstrates that, with more resources for the program, more could be done. The figures show that the number ofannual appeals filed has not increased over time and, when measured on a "per Justice/Judge" basis, has declined. In FY 1989 to FY 1992, the appellate courts received an average ofonly 665 appeals per year. At that time there were a total ofeight appellate Judges and Justices (five on the Supreme Court and three on the ICA), so the case to judge ratio was about 83: I. Starting in 1994, there were nine appellate Judges and Justices (one more position was added to the ICA in 1993), so that even though the annual number ofnew cases rose to an average of 800 per year in the 1990s, the case to judge ratio only rose to 89: I (a less than 10% increase). Now, with the annual number ofappeals down to 660 in 2003, and the number ofJustices and Judges still at nine, the case to judge ratio is approximately 74: I, about 10% less than it was in FY 1989 to FY 1992. There is no doubt that the rise in the case load in the 1990s from below 700 new cases per year at the beginning ofthe decade to 800 cases per year by the middle ofthe decade created some problems for the Court, particularly as it coincided with the arrival ofnew and thus less experienced Justices and Judges on both courts. The legacy ofthis period continues to be problematic, with oral arguments still rare and summary dispositions orders ("SDOs") still being frequently used. However, events that took place ten years ago lose their

12 explanatory power as time passes and do not account for the current problem that the backlog has grown over the past three years even as the courts have had relatively low turnover in Justices and Judges and an annual easeload below 800. On the positive side, the Committee believes that with the recent addition oftwo new ICAjudge positions, the case to judge ratio will obviously decline further. Ifappeals in the coming fiscal years remain at the current rate of below 700 per year, the case to judge ratio will be below 64: I, a ratio that the appellate courts have not seen for two decades. Even ifthe number ofappeals returns to its peaks ofthe 800+ per year as in the mid- to late 1990's, the case to judge ratio will be 73:1, still lower than the ratio fourteen years ago in 1989. It can thus be seen that the recent creation ofthe two new ICA positions will have a substantial impact on the appellate court's workload distribution and should go a long way towards resolving the backlog problem ifthese new resources are managed effectively. In summary, the current caseload has held steady over the past decade and in the past few years has actually shown a decline from the rates in the 1990's. The current caseload is only slightly higher than it was in the late 1980's and early 1990's and, on a "per judge" basis is actually lower. Thus, the statistics demonstrate the fallacy of the common assumption that there has been a significant increase in the appellate caseload in recent years. B. Source of the Backlog Problem With fewer appeals being tiled, the natural question is: why is the backlog and its attendant delay once again increasing? The immediate answer, although it does not resolve the problem, is that the appellate courts' rate of disposing cases has declined even more significantly than the number ofnew appcals. Statcd simply, the courts are falling behind even though their workload, as measured by number ofnew cases, has not increased. A look at some additional statistics gives a clearer picture of the problem. The National Centcr for State Court ("NCSC") has developed a statistical tool for identirying and measuring case backlog and delay problems known as the "clearance rate." This is the number ofdispositions divided by the

13 number ofnew filings multiplied by 100. In short, it gives a percentage that reflects whether the court is keeping pace with new filings or falling behind. The NCSC literature recommends taking a three year average and gives the following criteria for judging the results: "[O]ne way to judge courts is to consider rates of I00% or more as excellent, rates of95 to 99% as good, rates of90 to 94% as fair and rates of89% or smaller as cause for concern." Hanson, NCSC Final Report on the Louisiana Circuit Courts o(Appeal, (June 2002) at 48. Table I sets out filing and disposition data for the Hawaii appellate courts in an easily readable form [rom FY 1991 to FY 2002. (All Tables are printed at the end ofthe Report). Table 1 shows that the clearance rate for the Hawaii appellate courts (combined) [or the years FY 2000 to FY 2002 was as follows: FY 2000 - 81.8% FY 2001 -78.5% FY 2002 - 86.7% Under the NCSC criteria, these statistics are a "cause [or concern." To determine whether this problem was ofrecent or longstanding vintagc, the Committee reviewed the size ofthe backlog since 1991 and took a more detailed look at the COUltS' clearance rates over that period. Table 2 shows the annual backlog at the end of each fiscal year since FY 1990, while Table 3 sets out the number ofappeals filed in each ofthe years FY 1989 to 2003, and shows the number ofincoming appeals first rose, then fell, during the past decade. Following Table 3 is a graph (Fig. I) that illustrates how the appeal rate, clearance rate and backlog have changed with respect to each other over the past thirteen years. The combined backlog for both courts was at only 336 in June 1990. It crept up over the next two years to 507 by June 1992, in large part because, as noted below, the ICA was without one o[its three judges between June 1991 and May 1992 following the departure ofJudge Tanaka. The backlog took a dramatic jump in FY 1993 following the death ofJustice Wakatsuki in Fall 1992 and tbe retirement of ChiefJustice Lum in Spring 1993, who were replaced by Justices

14 Ramil and Nakayama respectively in Spring 1993 after Justice Moon took over the ChiefJustice position. Ofnote and concern is that the replacement ofJustice Wakatsuki took approximately eight months. Thus, by June 1993, the Supreme Court's own backlog (i.e. not including rCA backlog) had increased in one year from 369 to 645. The dislocation resulting from the change in the composition ofthe Court undoubtedly caused some ofthe increase, but the backlog continued to increase the following fiscal year, FY 1994 (Justices Ramil's and Nakayama's first full year on the Court), increasing to 784 by year-end. Meanwhile, the rCA showed a significant increase in its own backlog from 138 as ofJune 1992 to 485 by June 1994 as the number ofcases assigned to it by the Supreme Court rose steeply in those two years. As ofFY 1991, the Supreme Court was assigning less than 140 cases per year to the rCA and this corresponded roughly to the rCA's annual disposition rate at the time with three judges who had all been on the Court for nearly a decade. The rCA had only two judges in FY 1992 following the departure of Judge Tanaka in June 1991, who was not replaced by Judge Watanabe until May 1992, 11 months later. (Appendix B shows the dates when various Justices and Judges left their respective positions and were replaced). Thus, the lCA's disposition rate plunged in FY 1992, putting further pressure on a Supreme Court that was starting its own transition that year with new Justices Levinson and Klein. rn 1993, a fourth position was created on the ICA, increasing its theoretical capacity by 33% for FY 1994. This did not, however, translate into an immediate increase in the rCA's disposition rates. The rCA continued to dispose ofonly 120 to 150 cases per year in FY 1994-1996. Like the Supreme Court, its disposition rates soared during the "backlog reduction" project of FY 1997 and FY 1998 (discussed further below). Since then, the rCA has settled down to a steady 200 cases per year for the past four years. The Committee concludes that with the addition of two new positions this year, after the initial dislocation caused by the arrival ofnew Judges, the leA should be able to dispose of270-300 cases per year. This works out to approximately 45-50 cases per judge per year. These

15 numbers are lower than the per Justice per year disposition figures for the Supreme Court primarily because the Supreme Court Justices have more staffresources and the Supreme Court retains a significant number ofsimple cases that can be disposed ofwith relative ease. Table I also shows the number ofdispositions each year since FY 1991 by each court, together with the number ofcases assigned over to the ICA by the Supreme Court. In an apparent response to its own low clearance rate in FY 1993 and 1994, the Supreme Court assigned 257 cases to the ICA in FY 1993, nearly double the ICA's usual load, and in FY 1994 the Supreme Court assigned 311 cases to the ICA. Thus, in a two year period, the Supreme Court assigned nearly 300 more cases than usual to the ICA, or more than four years worth of work. This assignment ofadditional t:ases to the leA occurred during a two­ year period when the Supreme Court's own backlog ofcases it retained rose by 415. Thus, ifthe Supreme Court had not assigned these additional 300 cases to the ICA, its own backlog would have risen by more than 700 cases in those two years. It should be noted that those two years, fY 1993 and FY 1994, saw an increase in the number ofappeals filed. The previous four years, FY 1989­ 1992, had seen an average of665 appeals filed per year. In fY 1993, there were 838 appeals filed (173 more than the average for the prior three years) and in FY 1994 there were 822 appeals tiled (157 more than the prior average). The details ofthese figures are set out in Table 3. It was unfortunate that this 25% increase in filings (which subsided somewhat later in the decade) coincided with major turnover in the Supreme Court. Both Justices Klein and Levinson had joined the Court towards the end of FY 1992 (replacing Justices Hayashi and Padgett), and Justices Ramil and Nakayama had joined towards the end of FY 1993. However, the additional 330 cases above the average that were filed in FY 1993 and FY 1994 does not account for the fact that the Supreme Court fell behind by more than 700 cases. The Supreme Court in earlier years had typically disposed of 550+ cases per year (e.g.

16 545 in FY 1991 and 591 in FY 1992), but in FY 1993 it only disposed of251 and in FY 1994 it only disposed of389. The story ofthe last decade has been the problem ofdealing with that sudden increase in the backlog, the effects ofwhich are still being felt today. The data on the clearance rate for the past decade set out in Table I shows that the clearance rate was below 65% in FY 1993 (45.7%) and FY 1994 (62.7%), which produced the rapid explosion in the case backlog. The clearance rate was closc to 100% in the next two years, which prevented the backlog from growing but failed to reduce the existing backlog produced by the first two years. The clearance rate soared in FY 1997 and FY 1998 (156.2% and 139.4% respectively). This was the direct result ofa concerted "backlog reduction project" by both courts. This effort involved the extcnsive use ofsummary disposition orders (SDOs) (a topic discussed further below), but resulted in the backlog being once again under 600 cases (about 8-10 months supply) by FY 1999. UnfOliunately, this period of intense activity was followed by the last three years in whieh the Supreme Court's clearance rate slipped significantly. The ICA has also shown a similar inconsistency in its clearance ratc, although it must be noted that the number of incoming cases at the rCA is controlled by the Supreme Court. The combined clearance rate ofthe appellate courts was as follows: 90.9% in FY 1991 86.0% in FY 1992 45.7% in FY 1993 62.7% in FY 1994 93.1 % in FY 1995 93.1 % in FY 1996 156.3% in FY 1997 139.4% in FY 1998 (backlog down to < one yr. supply ofcases) 100.7% in FY 1999 81.8% in FY 2000

17 78.5% in FY 2001 86.7% in FY 2002 It should be observed that the number ofcases assigned by the Supreme Court to the ICA between FY 1995 and FY 1999 averaged 179 per year, while the average from FY 2000 to FY 2002 was 241 assigned cases per year· a 33% increase. This means that the Supreme Court's own backlog has increased in the face ofa declining number ofnotices ofappeals over the past three years despite assigning an additional sixty (60) cases per year to the ICA. It appears that, as in FY 1993 and 1994, the Supreme Court's response to a decline in its own clearance rate is to increase the number ofcases assigned to the ICA. This, however, merely rearranges the basic problem and does not solve it. The decision to significantly increase the ICA's workload in FY 2000 cannot be readily explained by the fact that the ICA went from three judges to four, inasmuch that change occurred in 1993. Overall, the Committee found the lack of open discussion between the two courts to he a cause for concern, because effective problem-solving requires good communication between the members of a team and the courts must work as a team if the hacklog is to be reduced. The Committee recommends that there be instituted regular meetings between the two courts to discuss assignment criteria, caseload management tools and techniques and the efficient allocation ofavailable resources. With clearance rates declining even in the face ofdeclining numbers of appeals, some observers have raised the question whether some modem cases are ofgreater complexity than cases from two decades ago, thus slowing down the courts' rate ofproduction. The complexity ofany individual ease is a relatively subjective question, and difficult to judge. The Committee was comprised of members with more than two decades' legal experience, so it had some sense of the issue. The Committee's view is that complex cases have always accounted for only a fraction ofthe caseload, and the majority of cases involve the same types of disputes and issues that have confronted the courts for years. Thus, even though there have been some highly complex cases in recent years, they are not so great in number that they would have a significant impact on the overall workload.

18 Moreover, each court stands on the shoulders ofits predecessors. Thus, rises in the levels of complexity that may occur as a society becomes more sophisticated are offset by the growth in the body ofprecedent -- there are now more published decisions on a wider number oftopics available to guide the current courts than there were ten or twenty years ago. Other observers have questioned whether the current composition of the Hawaii Supreme Court has produced inefficiency because ofinability of members to work together. However, as noted above, the period FY 1993 to FY 1994 was also marked by very low clearance rates, and the Court had a different composition then (only three ofthe current Justices were on the Court in those years). Moreover, the current marked decline in disposition rates began in FY 2000, which ended in June 2000. The only new Justices to have joined the Supreme Court since 1993 joined in May 2000 (Justice Acoba) and May 2003 (Justice Duffy). Thus, the addition ofthese new Justices would not explain why FY 2000 produced only 469 dispositions by the Supreme Court when a year earlier it had made 658 dispositions. One point that the ChiefJustice has made in public statements was corroborated by the Committee. In years where Justices died or retired and were replaced by other Justices, clearance rates were even lower than in other years. Part ofthe reason is the delay that occurs between the departure of one judge and the arrival ofhis or her replacement. It thus appears that the use of substitute Justices in these "gap" periods is not as effective as having pernlanent full-time Justices working on the cases. The Committee recommends that the Judicial Section Commission, the Governor and the Legislature work closely together to make sure that this "gap" is as short as possible and preferably non-existent. Gaps such as the eight month gap in replacing Justice Wakatsuki or the eleven month delay in replacing Judge Tanaka simply calmot be tolerated. The appellate courts too must recognize the disruptive effect ofthese transitions and better plan for them. New Justices and ICA Judges cannot be given a "honeymoon" period, but must be prepared to hit the ground running. From the first day, they should understand what is expected ofthem in terms of

19 numbers ofdecisions per month and should be prepared to keep up with the existing members ofthe court in terms of production. The public cannot afford "on the job" training. The Judicial Selection Commission should be familiar with the workload the Justices and Judges face, including the number ofdecisions each must complete per year for the appellate courts to stay current. The ability of applicants to work at this pace should be very high on the Judicial Selection Commission's criteria. C. Consequences ofAn Inconsistent Clearance Rate Leaving aside the question ofhow many cases the Supreme Court assigns to itself and how many to the ICA, a core problem for both courts appears to be a failure to consistent(v maintain their clearance rate at an effective level. The courts go through periods with high disposition rates in which the backlog is somewhat reduced, alternating with periods oflow disposition rates in which the backlog grows. The system is currently in one ofthe latter phases. This inconsistent pattern ofalternating high and low disposition rates presents additional concerns about the quality ofjustice in times when the courts are playing "catch up." The frequent complaint by Bar members about the over­ usc of SDOs dates from the period ofthe backlog reduction project (FY 1997 and FY 1998), when SDOs were the primary tool ofbacklog reduction and were heavily used. Even though there are fewer SDOs today than in that period, the dissatisfaction with their use remains. Ideally, a court should stay as close as possible to the 100% mark, year in and year out, to ensure that all litigants in each year obtain the same quality ofjustice and delay is minimized. The waxing and waning of the clearance rate also leads to an erosion in confidence in the Court because the pendulum nevcr comes to rest at a happy medium. One retired Justice pointed out a "damned ifyou do, damned ifyou don't" problem that the appellate courts face: when the disposition rate is increased in the "catch up" phase by issuing more summary disposition orders that can be produced quickly but which fail to explain rulings, litigants and lawyers complain that the courts arc not giving the parties adequate attention or the legal

20 community the required guidance. When the courts take the time to write longer opinions at the expense oftimely dispositions, people complain about the delay. D. Excessive Backlog Equals Justice Delayed The total number ofcases in the backlog - whether it is 500 or 1000 is a figure that may not mean much to the average litigant ifthe clearance rate remains at 100% and the time to disposition is reasonable. However, when the backlog translates into unreasonable delay, litigants suffer. The harm ofappellate delay goes beyond the parties themselves. As the Massachusetts Visiting Committee on Management in the Courts ("VCMC") found in its report on the Massachusetts courts, "Businesses avoid a state that has slow and uncertain courts. Families struggle when courts take too long to resolve cases, and taxpayers suffer when the courts are not efficient. The ConU110nwealth as a whole suffers." VCMC, Report to ChiefJustice Margaret Marshall (March 2003), at 4. Appellate delay also erodes public confidence because ofthe other measures that must be implemented to address the problem. We have already noted the immediate consequences ofthe ups and downs in the clearance rate. A secondary effect is the isolation that the courts impose on themselves in order to deal with the backlog and the resulting delay. The virtual abolition of oral argument between 1994 and 2002 is an example ofone such response to the backlog problem. While it does not appear to have increased the disposition rate, it has served to make the courts appear less accessible and more remote. Bar members' consensus was that the "face to face" aspect oforal argument promotes a needed cohesion among the appellate courts, the bar and community. Justices and Judges see the human faces ofthe lawyers and their clients and vice versa. The sense that all members ofthe court are engaged in the case at the same time along with the lawyers increases the perception ofa "hands-on" court that is doing the people's business. Moreover, the mounting backlog and its attendant stresses may adversely affect the Justices' ability to maintain a high level of involvement with the legal community and the public; committee work and public speaking may be reduced because ofthe backlog's demands. Thus, the backlog and its attendant

21 delay hamper the appellate courts both directly and indirectly in their efforts to build public confidence in the appellate system. At current disposition rates of660 cases per year, the backlog is now more than 150% of an entire year's worth ofdispositions. Because cases with similar priority are typically dealt with in the order in which they arrivc, this means that on average 1.5 years will pass before a new case can reach the stage where it is ready to be considered for disposition. Moreover, some cases - such as criminal cases where the defendant is in custody or child custody disputes -­ are extremely time sensitive and understandably take priority. Thus, these figures mean that for the typical civil case -- which is understandably given a lower priority than the foregoing types of cases -- it will be more than two years on average before the Court will start actively to review and dispose ofthe case. The Supreme Court has informed the Committee that as of August 31, 2003, there were 225 pending cases that are more than two years old, but did not indicate how many ofthese were three or four years old. A number of practitioners have reported that they currently have cases that are now 3, 4 and even 5 years post-appeal without decision, and recent press reports confinn the existence ofat least 20 cases that are more than four years old. This situation falls well short ofthe guidelines that the ABA recommends for the timely disposition ofcases. According to ABA guidelines, 50% ofappeals should be decided within 270 days (9 months) or less from the notice ofappeal, and 90% ofappeals should be decided within 365 days (1 year) or less from the notice ofappeal. See NCSC, Timeliness in Five State Supreme Courts, 2002. In Hawaii, as ofFY 2002, the median age of cases at termination (i.e., the age by which 50% had been decided) was 406 days (1.1 years). In FY 2003, this has increased to 420 days. The 90'h percentile figures were not calculated by the Committee. The Committee notes that as long as the problem ofdelay remains (and it is believed that it can and should be resolved within three years ofthe appointment ofthe two new ICA judges), ways must be found to minimize its impact. The Committee recognizes the value ofthe Court's system ofgiving

22 priority to cases where criminal defendants are in custody and the status or custody ofminors is in issue. This priority system, however, could go further. Currently, civil cases are grouped together in priority, which can lead to dissatisfaction and other problems for some litigants who plainly have a more pressing need for a decision than others. The Committee recommends that the Supreme Court consider prioritizing among civil cases. Factors which it may wish to consider include whether the case involves a death or life-altering injury, whether any party's' situation is such that the outcome ofthe case will affect that party's financial viability (a case where a judgment threatens to put a company out of business should be heard sooner than a case involving a judgment that does not threaten anyone's financial survival). Similarly, cases where summary judgment has been granted may need to take precedence over cases where there has been a trial because, in the former case, witnesses have not yet been tested through a trial and may be lost in the intervening time ofappeal, while in cases where there has been a trial, a more or lcss complete record ofthe evidence has been crcated and the parties have at least had a trial, however imperfect. E. Causes of the Clearance Rate Problem Because the annual number ofappeals has not increased over the past ten years, the problem ofan inadequate clearance rates cannot be attributed to an increase in the case workload. Yet, from all credible accounts, the JlIstices and Judges ofthe appellate courts arc working as hard as cver, putting in the same hours, with the same staff resources. These facts lcd the Committec to consider the possibilities that (1) the non-case workload ofthe courts has increased and (2) that the management ofthe caseload has become less effective or productive over time. 1. Non-Case Workload Most ofthe non-case workload falls on the Supreme Court, which has oversight and administrative responsibility for such disparate areas as the Judiciary's budget, the lower courts, the Board ofBar Examiners, the Office of Disciplinary counseL the development ofcourt rules for all courts, and numerous

23 bench and bar committees, to name just a few. The Committee therefore sought to meet with the individual Justices ofthe Supreme Court to learn first-hand what non-case tasks they face and how much oftheir time these tasks consume. Unfortunately, none ofthe Justices responded to the Committee's requests for a meeting prior to the preparation ofthis report. In discussing the question ofnon-case workload with retired Justices and clcrks, the Committee determined that the non-case workload is a substantial portion ofeach Justice's and Judge's workload. However, the Committee was unable to identifY any significant increase in the non-case workload in recent years. In fact, the unification ofthe Bar and the development ofthe Office ofthe Administrator ofthe Courts have served in some respects to relieve the courts of part ofthat workload. Thus, while it appears that non-case workload takes up a substantial portion of the Justices' and Judges' time, it does not appear that this portion is significantly greater than it was in years when efTective clearance rates were maintained. Ifin fact there has been an increase in non-case workload, the Committee strongly recommends that the appellate courts take immediate steps to reduce that workload by eliminating it or reassigning it to other parts ofthe Judiciary or the Bar. The core mission ofthe appellate courts, "the timely disposition ofcases including resolution ofparticular disputes and explication of applicable law," must come first. 2. Problems of Efficiency By the process ofelimination, the Committee has concluded that the decline in the clearance rate in the face of a declining caseload is most likely the result of an inefficient application of existing resources. These resources include the time and effort ofthc individual Justices and Judges, the number of law clerks and their time and effort, and the legal research and writing tools available (which are certainly bettcr now than ten years ago). Those resources have historically been sufficient to keep up with a cascload that was, in terms of case to judge ratio, comparable to the current caseload that the appellate courts face. Because the internal case management processes ofthe appellate

24 courts are not directly open to the Committee's investigation, it is difficult to determine at which precise points the resources are being inefficiently applied. However, certain facts about the numbers ofpublished and non-published decisions allow some general conclusions. The following discussions sets out the background infonnation. To decide 700 plus cases a year, the appellate courts must issue a number ofpublished opinions, a number ofmemorandum opinions and a number ofSDOs. Contrary to common perception, the number ofpublished decisions has always represented only a small minority of dispositions, typically less than 20% ofthe cases decided on the merits (i.e., appeals not dismissed on procedural or jurisdictional grounds, settled or abandoned). Thus, non-published decisions (memorandum opinions in the 1980s and earlier, and memorandum opinions and SDOs in the 1990s and the present decade) have been the mai nstay ofthe decisional process as far back as the Committee looked. While in an ideal world virtually every case would result in a published decision, it would be physically impossible to do the detailed work required to create a published opinion in each ofthe 500 to 650 substantive "merits" decisions that the appellate courts make each year. From looking at the work ofpast courts as well as courts in other jurisdictions, the Committee concluded that it would be unrealistic to expect that, even with more staffand equipment resources, the Supreme Court could prepare publishable decisions in more than 10-15% of filed appeals. The existence ofnon-published decisions, whether in memorandum opinions or SDO form, will always be a fact of life. The real question is how much etIort and time to devote to published decisions versus non-published decisions, and what is the proper ratio ofmemorandum opinions to SDOs. With respect to published opinions, in the ten years between 1983 and 1992, the Supreme Court issued an average of 57 published opinions per year. The remainder ofthe Supreme Court's cases were decided by memorandum opinions (SDOs were not commonly used at that time). Thus, less than 10% of appeals resulted in published opinions during the 1980s. In the ten-year period from 1993 to 2002, the annual number of published opinions by the Supreme Court increased, although not dramatically, to an average of63 per year. This is still less than 10% ofthe caseload. To give a general idea ofhow the overall caseload is disposed ofeach year, figures for recent years show that about 10% offilcd appeals are withdrawn, about 30% are transferred to the ICA, and about J6% are resolved by dismissals on jurisdictional or "other" procedural grounds. Thus, about 44% ofthe filed appeals remain for a substantive disposition on the merits by the Supreme Court. Combined with the approximately 30% assigned for decision to the ICA, this means that roughly three-quarters ofthe caseload is subject to substantive disposition on thc merits (i. e, not withdrawn or dismissed). Ofthe 44% retained by the Supreme Court for substantive disposition on the merits, approximately 20% are decided by SOOs, about 8% are decided with a published opinion, and about 16% by unpublished memorandum opinion. In summary, less than halfofall appeals end up being resolved by the Supreme Court through a decision on the merits, be it published opinion, unpublished memorandum opinion or SOD, with the current ratio ofthese decisional methods being roughly 2:4:5 respectively. Signiticantly, because the Supreme Court's production ofpublished opinions has not declined in recent years, and procedural dismissals (such as Jenkins dismissals) on jurisdictional and other grounds have in fact increased, the decline in dispositions on the merits and the fall-off in the clearance rate is almost exclusively among the cases decided by memorandum opinions and SOOs. Stated simply, the Supreme Court has continued to produce the same number of published opinions as before, but fewer non-published decisions. lfwe assume (as some knowledgeable observers havc informed us) that the Justices are working just as hard as ever and putting in the same (or even more) hours ofwork, the conclusion follows that the Justices are devoting more oftheir time and eHart to cases that result in published opinions and correspondingly less oftheir time and effort to cases that result in non-published decisions.

26 3. Opinions are Getting Longer The Committee conducted a comprehensive review and page count of every published opinion by the Supreme Court since 1983, and determined the average annual page count per calendar year, as well as per Justice. The number ofpages in an opinion is not necessarily an exact indicator ofthe amount oftime spent on the opinion since it takes time and effort to distill ideas into a short opinion. Nevertheless, page count undoubtedly tells us something about use of resources, because each page must be read by the other Justices, proof-read by clerical staffand cite-checked by law clerks. The page count study results are set out in Tables 4 and 5. Table 4 contains in both graphic and tabular form the infom1ation for the Supreme Court as a whole. Table 5 contains more detail, reflecting the published opinions by each individual Justice. The survey revealed that in 1989, the median number ofpages in the Supreme Court's published opinions was 8.3, the mean was 6.9. These figures had remained relatively constant during the 1983-1992 period. However, page numbers increased significantly in 1993 and have remained substantially higher during the 10 years from 1993 to 2002. The mean number of pages per published opinion over the last 10 years is 22, the median is 19.7. Thus, opinions are three times longer than before. Another way to look at this statistic is that the Supreme Court in 1983-1992 averaged 475 pages per year ofpublished opinions (spread over an average of 57 cases per year), while the 1993-2002 court has averaged 1411 pages per year (spread over an average of63 cases per year). These figures are large enough to suggest that the focus on published opinions and the length thereofhas cut into the judicial resources that were formerly available to decide the non­ published cases, with the predictable result that the Court's production in the latter area (which comprises the substantial majority ofdecided cases) has declined and the overall backlog and delay have accordingly increased. While there is a perception within the Bar that the long opinions are the work ofonly one or two Justices, the statistics show that all ofthe Justices have been writing longer opinions over the past ten years. Table 5 shows the

27 production ofeach Justice over the relevant periods. The fact that the increases are across the board among all Justices suggests that each Justice feels the need to "keep up" wi th the others in terms ofopinion length. In thi sway, the culture of writing longer opinions becomes self-reinforcing and difficult to reverse. The Committee recognizes that the needs ofeach case are unique, and that there will always be individual cases that require lengthy explication. Nor should Justices be muzzled in expressing their views by hard and fast page limits. Nevertheless, just as litigants are forced by Court rule to limit the length oftheir submissions, it is appropriate that the Justices and Judges ofthe appellate courts face some limits to ensure that they spend their resources efficiently and do not expend an excess ofeffort on the small minority ofappeals that result in published decisions. The precise nature ofthese limits is discussed further below in Section IV.F.3. 4. Additional Factors Long opinions are one factor, but not the only one. Another factor appears to be a failure by the appellate courts to consistently give the backlog and delay problem the priority that it needs to be given ifthe courts are to meet their primary mission ofthe "timely disposition ofcases." When a backlog has persisted for live years, and has in fact grown in that time despite a decline in incoming cases and elimination oforal 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. One symptom ofthis problem is that over the past decade there appears to have been no regular or effective communication between the two appellate courts on how best to coordinate the backlog reduction efforts ofthe two courts. Another is that the Supreme Court could not provide the Committee with evidence that it has set clear targets and production quotas for individual Justices. The Committee also gave consideration to the question of whether the declines in clearance rates result from an increase in dissenting opinions or to changes in the composition ofthe Court in the last tour years. After reviewing statistics from the early 1990s, however. these possibilities were discounted. The

28 Supreme Court suffered from a low clearance rate in 1993-1996 when there were fewer dissents and the composition ofthe Court was different. Significantly, however, 1993 was the year ofa marked increase in the length ofpublished opinions. The Committee also noted that the newest Justices have written for the Court or at least a majority ofthe Court in a significant percentage ofopinions. For example, between 200 I and 2003, no Justice wrote more ofthe published opinions than Justice Acoba, and Justice Duff)', after just five months on the Court, has already published a number ofopinions. F. Areas Where the System May Be Improved After consideration ofall ofthe data availablc, the Committee has concluded that the problem ofthc clearance rate and the consequential increase in the backlog and appellate delay is ultimately more ofa managcment problem than a resource problem or a problem of increasing caseload. To the extent that it has been a resource problem, the Committee bclieves that the two new lCA positions will be adequate to address the current caseload, even if it rises to levels seen in the 1990s of 800+ cases per year from its current 660. A consensus emerged among those to whom the Committee spoke that the problem can be solved with existing resources by making the requisitc commitment to solving it. A concerted effort in FY 1997 and FY 1998 produced a significant reduction in the backlog. At the conclusion ofthis report are a number of concrete steps that the Committee recommends be taken to address this problem, but a commitment to change from within the appellate courts must come first and must underlie the specific steps taken. As with any problem, the solution lies first in understanding it, second in setting goals or standards that, ifmet, will resolve the problem, and third in developing tools to ensure that the goals and standards are met. Progress towards solving the problem can then be measured and the course adjusted accordingly. The backlog/delay problem is now relatively well understood, but the apparent abscnce of specific goals and standards remains a concern, as docs the apparent lack oftools, commitment or cohesiveness to ensure that such goals and standards arc met.

29 1. Timeliness Standards The Supreme Court has not publicly identified its actual standard of "timeliness." Supreme Court Rule 9 purports to set out a "one-year" standard: Within 12 months after oral argument ofa case or matter or ifit has been submitted on the briefs, within 12 months ofthe date oral argument would have been scheduled, the supreme court, insofar as practicable, shall issue an opinion or order disposing ofthe case or matter. However, this rule is effectively abrogated by (a) the near-abolition of oral argument and (b) thc "insofar as practicable" clause. Moreover, even iforal argument is instituted again at former levels, Rule 9 would only control the delay in the post-oral argument phase and there would be no standard controlling pre­ oral argument delay. The current timeliness standards appear to be inadequate as written and are ineffectively enforced. A publicly stated commitment by the Supreme Court to some clear and specific time standard, such as the ABA guidelines discussed above, is something that the Committee recommends. Even if the standard is not met in the beginning, progress towards meeting it can be objectively measured and the public will be able to see that progress as the actual time for disposition on appeal begins to approach the standard. By the same token, it will be more readily apparent when the Court is falling behind, and early steps can be taken to bring the system back on course. As discussed in Section V.C.3 below, such a system will also require publication ofcaseload "aging" statistics that will allow the courts' performance to be measured against the timeliness standards they set. 2. Specific Numeric Targets for Decisions By Justices The Supremc Court has not established any internal numeric targets for decisions or dispositions by individual Justices (e.g., so many decisions per month, so many per ycar). The ICA in contrast sets weekly and monthly targets for its Judgcs. One result ofregular mcetings between the two courts would be to enable the Supreme Court to have a closer look at how such a system can work. While it may not bc necessary to publish the precise numbers required

30 ofeach Justice, it would be reassuring if there were some internal requirements. The Committee strongly recommends that the Supreme Court adopt a system that imposes specific quotas and targets on each Justice with respect to the numbers of published and non-published decisions each must write, as well as a system to ensure that those quotas and targets are consistently met. Ifthis is not done, Hawaii's Legislature may well have to consider adoption ofa system like the one followed in several western states, including California, which by law mandate the disposition ofcases within specific time periods and provide for the withholding ofjudges' compensation ifthe time periods are not met. 3. Limitations on Published Pages The Committee recommends theat the ChiefJustice and the Chief Judge ofthe ICA place an annual limit or "cap" on the total number ofpages that each Justice or ICA Judge may publish. By limiting the overall number but not the number for any speeitic case, the Justices will still be free to write longer opinions where appropriate, but will have to offset that by writing shorter ones on other cases. This will force some careful thought about which cases truly deserve a long opinion and will also curtail any tendency towards competition among the Justices and Judges on opinion length. The Committee does not recommend a specific number, but recommends that the courts consider a per Justice and per Judge "cap" that is only 10% to 20% higher than actual production ofthe Supreme Court Justices in the decade prior to 1993. This would translate into approximately 110 pages per Justice and Judge per year, instead ofthe current 280 pages per Justice. 4. Leadership and Teamwork The Committee is left with the distinct impression that without clear quotas for production and procedures for enforcement ofthose quotas, the Court has difficulty in restraining some ofthe less productive impulses ofits members. Ifone Justice consumes more than his/her share ofresources by publishing overly lengthy decisions that all the others must read and comment on, what mechanism exists to restrain him or her? Ifanother refuses to engage in open dialog about decisions and requires discussions to be put into writing with concomitant

31 expenditure oftime spent in drafting, editing and reading, how is that Justice encouraged to participate in a more collegial and cost-effective manner? if one Justice publishes far fewer opinions than the others, what tool exists for encouraging more production? it appears that not enough is being done in this regard. The ahsence ofsuch standards and the tools to enforce them cannot be laid at anyone person's door. Cultures and relationships develop over time, often without any conscious direction on the part ofthose involved. All members ofthe appellate courts are intelligent, high-achieving, goal-oriented people with considerable professional skills, each ofwhom is ultimately responsible for his or her own performance. Yet even people ofsuch high caliber require leadership when they engage in an enterprise that requires them to work towards a common goal. And, to be successful, they must allow themselves to be led. Article VI, Section 6 ofthe Hawaii constitution provides that the ChiefJusticc "shall be the administrative head ofthe courts." This certainly makes the ChiefJustice the head ofthe lower courts, but leaves it unclear as to precisely how far his powers extend in administering the Supreme Court itself. In fact, the same constitutional provision states that the ChiefJustice's appointment ofthe Administrative Director must be made "with the approval ofthe Supreme Court." Leaving aside the uncertainty over the powers that the ChiefJustice may exercise in managing the work ofthe other Justices, the role ofthe Chief Justice as the first among equals is obviously important in developing and enforcing the standards needed to conquer the backlog. However, there does not appear to be any nationally accepted standard or recommendation on what a Chief Justice should do to discharge his or her leadership role. One standard that is helpful in understanding the role ofa Chief Justice is the Deskbookfor ChiefJudges ufUs. District Courts. Like a Chief Justice, a ChiefJudge ofa United States District Court must manage a disparate group ofintelligent, independent judges with varying interests and experience and a large caseload. The Deskbook makes clear that the ChiefJudge must playa

32 leading role in tracking dO'WTI the problems that create a backlog and must take a hands-on approach getting the requisite performance out ofthe members ofhis or her team: Whether case delay is pervasive throughout the court or limited to certain judges, the first step in reducing it is to identify the extent and causes ofdelay. This begins with analysis ofthe case management data, but more is required than simply perusing statistical reports. It is important to discuss and analyze the reports at judges' meetings or in other forums and to plan a court-wide effort to reduce delay.

When case delay is a problem ofa specific judge, you (or your designee) can meet informally with that judge to try to understand the cause and determine what help might be needed. The circuit judicial council can assist you. A letter or telephone call from the chief circuit judge requesting an inquiry about a judge's delinquent cases can provide you with an opportunity to raise the issue with that judge. One possible remedy in this situation is to shift cases from the judge with the backlog to otber judges, although that may penalize judges who manage their caseloads more efficiently. ld atp. 112 (http://www.jjcgov/public/pd(nsfllookup/Deskbookpdfl$jile/ DeskbookpdjJ. The current ChiefJustice is widely known as an extremely hard worker and has carried more than his sbarc oftbe case load in addition to the non­ caseload responsibilities (which are very significant) that tall on the ChiefJustice position. He has received numerous awards and widespread public recognition for his considerable achievements, not least ofwhich was the NCSC's 2003 Distinguished Service Award. As the NCSC noted: "ChiefJustice Moon has made signitleant contributions to Hawaii's judiciary by steadfastly focusing on three basic goals: enhancing the administration ofjustice, increasing access to the courts, and preserving the independence ofthe third branch ofgovernment." NCSC News Release, January 6, 2003. As one observer commented to the Committee, "Ifwe could have five Justices like the CJ, we wouldn't have a backlog problem." But the paramount role ofthe ChiefJustice in achieving the "timely disposition ofcases" must be to ensure that the diversity and differences among the Justices are channeled and harnessed through effective case management. A team that has all members pulling equally hard in the same direction - the timely disposition ofcases and the explication ofthe law- will undoubtedly be more effective than one that does not. In this one area, the Chief Justice has to lead the way decisively and the other Justices must commit to follow that lead. To establish the 130% or greater clearance rate that is needed to catch up on the backlog over a three-year period, as well as thereafter to maintain a 100% clearance rate, it will not be enough merely to establish clcar timeliness standards, set individual monthly and annual production quotas for decisions and impose page limits. These standards, quotas and limits will have to be strictly enforced and adhered to by the court members themselves. Ifachieving enforcement ofthese standards and quotas requires the ChiefJustice to sit down and have heart to heart talks with individual Justices, this must be done; personal differences must be put aside for the public good. Ifit requires the publication of statistics on individual Justices' performance, this must be done; individual sensitivities must give way to the public good. If it requires taking away privileges or plum assignments, this must be done; individual Justices' understandable desires to be recognized for writing historic or important decisions must give way to the public good. The Committee suspects that such measures will not ultimately be needed ifthere is a clear perception that they will be used ifneccssary. 5. Commitment to Backlog Elimination Within a Defined Time Period Above aIL the task ofresolving the backlog and delay problem requires a clear and unwavering commitment to making it happen within a defined time frame. The attitude should bc that backlog is a manageable problem that can

34 and must be cured in two to three years at most without further recurrences, not a pennanent condition with which we must learn to live. The Committee recognizes that a commitment to make backlog elearance the number one priority is not enough ifthe Court members cannot agree among themselves on the best methods ofachieving the needed clearance rate. In any backlog reduction project, there will inevitably have to be an increase in the use of procedures that the Bar and the public find problematic - more memorandum opinions and SDOs, and perhaps a temporary increase in the ratio of SDOs to memorandum opinions. At least one current Justice has published dissents noting his principled objections to such dispositions in certain cases. The Committee believes that objections to some ofthe negative aspects ofa short-tenn backlog reduction project would be reduced ifcritics were satisfied that the project would be a one-time affair oflimited duration and that rules, targets, goals, quotas and standards would be installed and effectively enforced to ensure that there is never again a need for a "backlog reduction" project. The failure ofthe abolition oforal argument to reduce the backlog while nevertheless increasing public dissatisfaction with the appellate system is a good example of why "temporary" measures should not be taken without several corollary steps being taken: (I) A time limit on the "temporary" measure; (2) objective goals, quotas and criteria for ensuring that "backlog reduction" actually occurs during the temporary measure; (3) publication of standards against which the success ofthe temporary measure as a backlog reduction tool can be measured; (4) steps to mitigate the hann caused to substantive rights of individual litigants by the temporary measure; and (5) a mechanism (e.g., through HSBA committees) ofgauging public satisfaction with the temporary measure. Because the abolition of oral argument and the increase in use of SDOs during "backlog reduction" phase were not subjected to the above conditions, they have done as much hann as good in the eyes ofmany.

35 In conclusion, to the extent that there is tension between the twin missions ofthe Supreme Court -- the timely disposition of cases and the explication ofthe law -- the immediate and pressing state ofthe backlog and concomitant appellate delay requires that the timely disposition mission temporarily be given precedence over the explication mission. But the Committee stresses that in the long run, both missions are equally vital and important to the quality ofjustice and continued public confidence in the legal system. Thus, the only principled way for the Court to achieve consensus on how to solve its problems is make sure that those who press for more explication are assured by published and enforced internal standards that the backlog will be permanently reduced and that, once the problem is resolved, explication ofthe law will be given its full due. V. BAR MEMBER CONCERNS REGARDING MATTERS OTHER THAN APPELL~TE BACKLOG AND DELAY A. The Perception of Lack of Collegiality in the Supreme Court Members ofthe Bar and the public share a perception that the decision-making process ofthe Supreme Court suffers from a lack ofcollegiality and operates in an atmosphere ofunnecessary and unhealthy divisiveness. The sources ofthis perception appear to be published comments by Justices regarding each other's opinions, as well as private comments that Justices have apparently made that have been repeated by others. The Committee detennined that it would be beyond its power and abilities to make a factual detennination as to whether this perception reflects reality. The Committee is also cognizant that a spirited debate in a court's opinions is not alone evidence ofa problem ofdivisiveness and indeed, that an absence ofsuch debate would be potentially hannful to both the appellate process and the people ofthis state. However, the Committee is also aware that divisiveness and a lack ofcongeniality, if present, reduce the efficiency ofthe Courts' decision-making process and thus lengthen that process. The troubling perception ofa lack ofcollegiality might be dismissed as irrelevant to the public were the Coul1 fulfilling its mission ofthe "timely

36 disposition ofcases including resolution of particular disputes." However, given the statistics discussed in Section TV above, it cannot be said that the Court's principal mission is being fulfilled. As noted in Section IV, the Committee has thus been compelled to raise the question ofwhether the Supreme Court's work is being managed in a manner that is designed to result in the "timely disposition of cases including resolution of particular disputes." Implicit in this question is the question ofwhether management is being hampered because ofa lack of collegiality and concomitant poor relations and communications between the individual Justices. There is no ready answer to this question, as interpersonal relationships and their effect on efficiency are not easily susceptible to objective measurement or analysis. Moreover, the Committee did not find that Justices or court personnel were eager to discuss this sensitive topic. Ultimately, this is a question that the Justices must pose to themselves. In answering that question, the Supreme Court should recognize that the problems ofmanagement are difficult but not intractable. The Committee repeatedly heard from informed people that the appellate courts can, with their existing resources, timely dispose ofcases at the rate appeals are currently being filed and at the same time steadily reduce thc existing backlog. Those who communicated with the Committee either have worked, or currently work, in the appe!late courts and have personallc'lowledge ofthe workings ofthe appellate courts. Their statements are based on years ofpersonal experience and cannot be ignored. While it is difficult for the Legislature to legislate effective management techniques or for the rules ofcourt to compel them, the people ofI Iawaii have a right to expect that their appellate courts will manage the workload so that their cases will be disposed of in a timely fashion with appropriate explication. The management ofthe work performed by our appellate courts is challenging because our appellate courts are staffed with men and women of different judicial, legal and political philosophies and temperaments. With the sharp, incisive minds that Justices bring, often come strong egos that have helped drive thcir accomplishments.

37 Nonetheless, when discharging their principal mission oftimely disposing ofthe people's appeals, they all have the duty to "paddle together" to achieve that goal. The Committee has concluded that, ifthere are personal frictions and differences on the Court that are preventing the Court from achieving the needed clearance rate, then those are differences that the public cannot afford. Ultimately, thc test ofwhether there is a real problem ofa lack of collegiality will be whether the backlog and delay problem are brought under control and the appellate courts can thereafter maintain a consistently effective clearance while giving oral argument and the explication of law their due. B. The Need for Adequate Explication of the Law The strategic mission ofthe Supreme Court ofthe State ofHawaii is "to provide timely disposition ofcases, including resolution of particular disputes and tlte explication ofapplicable law." (Emphasis ours). To explicate the applicable law requires that the appellate courts publish the applicable law, clearly and explicitly. Laws that have bcen clariiied and made explicit by published appellate decisions provide the public the opportunity to know in advance what conduct is expected ofthem to meet their legal obligations, and the impact oftheir conduct on their legal obligations. Every day members ofthe public seek legal advice about their legal rights and discuss how to legally achieve their commercial or social aims. Their attorneys look to the statutes and the appellate courts' explication ofthose statutes and the common law to answer those questions. The adverse impact on commerce and society from lack ofadequate decisional authority cannot be underestimated. We can be law abiding citizens only when we know what the law is. Hawaii is a young and relatively small state, yet has forged its own unique legal system and constitution. Thesc factors crcate a high demand for published decisional authority to explicate the various laws to the public. It is in this light that the Committee viewed the concerns expressed by the Bar about the nature ofappellate decisions issued by our appellate courts. The appellate courts decide appeals on their merits in three different ways. First, the appellate courts may issue a summary disposition order in which the courts

38 summarily disposes ofthe appeal through a simple affirmance or reversal without any explication ofapplicable law. Second, the appellate courts may issue a memorandum decision which is not published and is intended to explicate applicable law only to the parties to that particular appeal. Under current rules, a memorandum opinion provides no authority, persuasive or otherwise, to the public or lower courts. At most, they provide a guidepost, not always reliable, ofhow the court would be likely to rule ifa similar case came up on appeal. Finally, the published decision is the only explication oflaw upon which the public can expressly rely in understanding the legal implications oftheir conduct or applicable rules of law. It is thus the most important method by which the appellate courts dispose ofappeals on the merits. Published decisions are of the greatest importance to the public and are the subject ofgreatest public interest and scrutiny. The Committee received complaints that the appellate courts publish too many opinions, at the same time that it received a plethora ofcomplaints concerning the lack of published opinions by the appellate courts. At first blush, this appeared to be an irreconcilable conflict. However, the complaints about too many published opinions were targeted at published opinions that simply reiterated existing established law with very little or no new law. Thus, for example, a common complaint was that there are dozens ofcases for the people's lawyers to rely on in determining the applicable standard of review for a particular appeal, or the standard for the grant, or denial ofa motion for summary judgment, but there are fewer answers to the numerous recurring substantive questions of law ofpressing importance. The Committee found that there are no transparent standards that govern whether or not a case should be resolved by SDO, memorandum decision, or published opinion. Yet, the comments received from Bar members support the conclusion that there are important memorandum decisions explicating previously un-explicated law, which are effectively of little use to the public because they cannot be cited as precedent in other cases. (The Committee notes that the latter

39 issue is being addressed by other committees ofthe Bar and takes no position on the question ofwhether memorandum opinions should have precedential value). At the same time, the Committee heard examples ofpublished opinions that have been devoted to the interpretation ofstatutes that have been repealed or cases that arc unlikely to recur. The concern about the lack ofadequate authority cannot overlook the evidence that the length ofthe Supreme Court's published opinions is growing. In 1990, the mean page length and median page length of Supreme Court decisions were both below 7 pages. By the year 2000, those numbers had grown to 20.9 and 19.7 pages, respectively. It undoubtedly takes more time and more resources to write a forty­ page decision that it does to write a ten-page decision. In any given time period, longer decisions means fewer decisions and hence less decisional authority. At a time when the number ofundecided cases has risen even in the face ofa decline in the number ofappeals, the increased length ofopinions is troubling and must be addressed, because it is adversely impacting the amount of useful decisional authority in Hawaii. On the question ofwhether and when to publish an opinion and whether a decision should have at least the explication ofa memorandum opinion instead ofthe brevity ofa one-word SDO, the Committee could not ignore the public writings ofJustices who have dissented from the decision to proceed by way ofmemorandum opinion or SDO in particular cases. See, e.g., State v. Sisneros, 2002 Haw. LEXIS 844, Appeal No. 22345 (Dec. 24, 2002) (Acoba, J. and Rami!, J. dissenting); Torres v. Torres, 100 Haw. 397, 60 P.3d 798 (Hawaii 2002)(Appendix A) (Acoba, J., dissenting, joined by Rami!, J.). The Committee has concluded that SDOs are not appropriate for non­ unanimous decisions and recommends that they be used only when all Justices are in agreement on the required outcome oCthe case. Use oCSDOs when there is a dissent leaves the litigants and the public unable to judge whether the case was correctly decided, because the majority's view is not explicated, yet the public knows that there are two sides. If there is dissent, the majority should be required,

40 at a minimum, to issue a brief memorandum explaining its reasoning and rationale. Moreover, the Committee recommends that decisions not to publish, in addition to being made pursuant to clearly articulated and consistently applied published criteria, should have the concurrence ofat least four ofthe five Justices. Permitting a mere majority, rather than a super-majority offour, to make the decision will result in the non-publication of some decisions that deserve publication. Iffour Justices must agree not to publish, the public can have more confidence that the right cases are being published. The decision to publish is not a decision about the merits, which for obvious reasons ofpracticality must be made by a simple majority. The existence ofdissent as a mechanism serves as a check on the tact that cases can be decided on their merits by threc Justices. But decisions on whether to publish are a different matter, because they do not decide the outcome ofthe case but instead serve to control the public's window into the courts' work. Ultimately, the ability and willingness of the Court to withstand public scrutiny of its decisions are more critical to the long term maintenance ofpublic confidence in the judicial system than the substantive decision in any particular individual case, no matter how important or controversial that case may be. Given that transparency ofthe system is ultimately a more important matter than the merits ofany particular individual case, it is appropriate that decisions on whether to publish require more consensus than individual decisions on the merits. In summary, reduction in the length ofopinions (i. e. greater conciseness), less repetition ofpoints of law already well-settled, a consistent effort to publish in diverse areas ofthe law that are detennined to be lacking in existing decisional authority, and refraining from addressing at length those cases that are unlikely to be repeated, will all serve to better meet the Court's mission of "explication ofthe law" and reduce the perception that the Court is not meeting that goal. For non-published decisions, memorandum opinions should be used wherever the court is not unanimous and SDOs should be limited to cases that do not involve any novel question and there is no dissent. Decisions on whether to publish or not should have the concurrence ofat least four out offive Justices.

41 C. The Need for Transparency in Certain Internal Procedures. The Committee observed that a lack ofknowledge on the part ofBar members about some ofthe Supreme Court's internal procedures can lead members to distrust the process and sometimes draw enoneous conclusions about the Court's work. Enoneous conclusions can, in tum, further undermine confidence in the Court. 1. Selection of Substitute Justices i\ case in point is the method used by the Supreme Court to select replacement Justices in cases where all five original Justices are recused. Naturally, such cases are rare and are by nature usually quite political. Some observers remarked on the fact that the same live Circuit Judges replaced the Supreme Court in two different unrelated cases (one involving Kamehameha Schools/Bishop Estate and the other involving discipline ofa Supreme Court staff attorney). This circumstance led some observers to conclude that the substitution process was not random. At the same time, however, there is no published rule, order or criteria, that sets out a procedure for selecting substitute Justices. While the ChiefJustice undoubtedly applies a system that he considers fair and balanced, the public does not know this and cannot make its own judgment. As a result, the Committee frequently heard speculation that replacements were appointed based on factors other than experience, seniority or random selection. As it turns out, the same set of substitute Justices appeared in both cases because the ChiefJustice (who under HRS § 602-10 selects the replacements) was using the same criteria eaeh time: assigning substitutes on the basis of the circuit judge's position (e.g, senior judge from each Neighbor Island Circuit; head ofTrial Judges Association, etc.). However, the criteria or rule that the ChiefJustice applied is not published or otherwise communicated to the Bar or to the public. This opacity raised unnecessary doubts about the fairness ofthe substitution system, whereas dissemination ofthis selection method could help show an objectively fair systcm. While the matter ofselecting rcplacement Justices lies within the

42 ChiefJustice's discretion, the Committee's view is that the selections would likely be seen as more fair and objective ifthe procedures and standards that govern that discretion were publicly disseminated. Thus, improvement in this area would be for the Court to publish whatever internal rules it follows in such situations and to consistently apply those rules. This would obviate speculation and give assurance to the public that the process is, in fact, rule-based. Justice must not merely be done, but must also be seen to be done. 2. Assignment of Cases to ICA and for Oral Argument Publication ofprocedures is not a panacea, however. The Committee noted that there are areas where the rules governing a process are known, but Bar members conclude that the rules are not generally followed, or are observed only in the breach. Primmy examples ofthis phenomenon are (I) Supreme Court Rule 9 on the timing ofdisposition of cases (discussed in Section IV.F.1 above), (2) the holding oforal arguments, and (3) the decision on whether a case is assigned to the ICA or retained by the Supreme Court. a. Selection for Oral Argument In the case ororal argument, the applicable statute provides that oral arguments shall be held in each case unless the Court in its discretion orders otherwise: "Parties shall be entitled to bring an appeal before a full court. Oral argument shall be before a full court; provided that in an appropriate case the court in its discretion may dispense with oral argument." IIRS § 602-10. Consonant with this statute, HRAP Rule 34 provides that: "Oral argument shall be had in all cases except those in which the appellate court before which the case is pending enters an order providing for consideration ofthe case without oral argument." Commencing in September 1994, in order to try to address the case backlog, the Supreme Court undertook the extraordinary policy that no oral argument be had in virtually all cases. In 1994, the Court heard 77 oral arguments; between 1995 and 2002, it heard a total of30 arguments, an average of less than four per year. (The ICA did not follow the policy to that extent and continued to hold oral arguments). Regrettably, available statistics indicate that the extraordinary measure ofelimination oforal argument has not reduced the

43 backlog or the problem ofappellate delay. However, the Committee could not rule out the possibility that the backlog might have become even worse iforal arguments had continued at the old rate. Given that the statute and rule provide for oral argument and allow the Court to make exceptions to the general rule, it appears that this is a classic case ofthe exception swallowing the rule. While the virtual abolition oforal argument was undertaken as a temporary emergency measure, it has become a semi-permanent condition, despite the fact that state law and court rule expressly provide for oral argument. The Supreme Court was in compliance with the letter of state law insofar as it "ordered" that there be no oral arguments in each case. Ilowever, the Court's blanket long-term virtual prohibition oforal argument was viewed by a substantial number of people who communicated with the Committee as violating the spirit ofthe statute and related rule. The highest court, however, should be seen to uphold the law both in letter and spirit. The Supreme Court has in the past year begun holding oral arguments with greater frequency (42 in the past 10 months compared to an average ofless than 4 per year over the prior eight years). This development, though welcome, has brought its own transparency problem. The Court has not published any rule or criteria for selecting which cases receive oral argument and which do not (although according to recent newspaper reports, reporters have been informed that the process is being used as a "pilot program" on simple, single issue cases that do not require extensive preparation for oral argument). However, even with the recent resumption oforal arguments. only a fraction ofthe cases arc granted oral argument and, unless journalists press the issue, the public and the Bar have no clear way ofdiscerning how or why the decision to hold oral argument in a particular case is made. The criteria that arc being used to decide whether a case gets oral argument cannot be discerned from the nature ofthe cases selected for oral argument, nor can any guiding principle be divined. Cases ofrelatively low public importance have been selected for oral argument, while cases ofhigh public interest have not. Similarly, cases that do not present novel questions have been

44 scheduled for oral argument. As examples, the appeal ofthe person convicted of Hawaii's largest mass murder and sentenced to life without parole did not receive oral argument, while DUI and harassment cases without novel issues have been granted oral argument. The Committee recommends that, at a minimum, oral arguments be held in cases where preliminary internal court discussions indicate the likelihood of a non-unanimous decision. Such cases are by definition close cases on which reasonable minds can differ. The possibility ofthe decision later being viewed as "wrong" is higher where only three Justices support it than where five Justices agree. Any available tool or mechanism for making sure the correct outcome is produced should be brought to bear in such cases. Oral argument is such a tool, because the open debate permits positions to sharpened and clarified and minds to be changed. In summary, the Court should establish and publish its fonnal criteria on what cases receive oral argument. Without some formal publication of criteria, the Bar and the public arc left to speculate or rely on newspaper reports, with potentially negative consequences. As with the selection ofsubstitute Justices, the solution lies in having clear standards that are published and then adhered to, with deviations from the rule kept to a minimum and explained when they occur. b. Assignment to lCA Under HRS § 602-5(8), cases are selected for assignment to the ICA by the ChiefJustice or the ChiefJustice's designee within 20 days after the last briefis filed. The Committee notes that the Court has been able to consistently meet this deadline. However, it is less clear that the Court is complying with the statutory criteria for such assignment. HRS § 602-6 provides that: In assigning a case to the appropriate court ofappeal under section 602-5(8), the chiefjustice or the chief justice's designee may consider the following among other relevant matters and their substantiality in determining whether the case involves a question of such importance that it should be assigned to the supreme court:

45 (I) Whether the case involves a question offirst impression or presents a novel legal question; or

(2) Whether the case involves a question of state or federal constitutional interpretation; or

(3) Whether the case raises a question of law regarding the validity ofa state statute, county ordinance, or agency regulation; or

(4) Whether the case involves issues upon which there is an inconsistency in the decisions ofthe intermediate appellate court or ofthe supreme court; or

(5) Whether the sentence in the case is life imprisonment without possibility ofparole.

The Committee determined that these criteria are not being systematically applied. The ICA receives a substantial number ofcases that one would expect to go to the Supreme Court (e.g., cases involving a sentence oflife without parole or questions of first impression), while the Supreme Court retains a significant number of routine cases that present no novel question. This distribution ofcases may actually be the most efficient but, ifso, it should be codified and the existing statute should be amended. At present, there is no way to determine objectively and quantitatively whether there is some systematic approach to ICA assignment, as opposed to an ad hoc approach. Moreover, if some system other than the statutory one is being used, there is no way to measure whether it is in fact a better system than the one called for by the statute. Indeed, by one ofthe few objective measures available -- the increase or decrease in the case backlog -- one could conclude that the system being used to detennine assignments to the leA is not working. In any event, operating for any long period oftime under a system that is inconsistent with the published statute breeds disrespect for the rule of law

46 and cynicism about the courts' commitment to the rule of law. Whatever criteria are being used, it appears that the rCA is being assigned cases of first impression and signiticant public importance. One consequencc ofthis may be the apparently high rate ofcertiorari petitions being granted, which result in both appeals courts hearing the same case on its merits. This is not to suggest that the quality ofthe rCA's work is not up to the task, but may be a reflection ofthe fact that the Supreme Court feels compelled to take a second look at these cases precisely because they are of public importance or contain issues oftirst impression. Examples of such cases include a case challenging the applicability ofthe City & County's leasehold condominium conversion statute and a case involving the shooting ofa police officer where the defendant had been sentenced to life without parole. rn these cases, the lCA conducted a review and issued an opinion, and the cases were then reopened by the Supreme Court on certiorari. The Committee has concluded that ifthe rCA were only being assigned cases that met the statutory criteria, there would likely be less frequent cause for the Supreme Court to grant certiorari review, and thus Illore efficient use ofjudicial resources. Certiorari petitions directly impact the case backlog. Where the Supreme Court grants the petition, it is ruling that the appellate system will take a second look at the same case. However, ifone case gets two looks, this means that another case will have its rcview delaycd or perhaps curtailed. Statistics are not readily available on whether the granting of certiorari petitions has increased in recent years and, ifso, by how much. The Committee has undertaken its own study ofthe matter to detennine to what extent there is a trend. This data may be published in its follow-up report when the study is completed. In sununary, publishing the rules or criteria by which substitutions, dispositions and various types ofassignments (to the ICA or for oral argument) are made, and then adhering to those rules and criteria, will have a salutary effect on public perception ofthe Court and public confidence in the system. It may also improve the efficiency ofthe system but, even if it does not, the baseline ofcause

47 and effect will be known and measurable. Improvements in case statistics (discussed in the next section) will enable the impact ofchanges to rules and criteria to be measured. In this way constructive changes to rules and criteria can be retained and unhelpful changes discarded. Such an empirical approach should help the appellate courts in reaching the goal of backlog reduction and ensuring that the courts' resources are most efficiently allocated. 3. Public Availability of Case Information and Statistics Basic case information about individual appeals cases is not available on-linc, nor is it available electronically upon an in-person visit to the appeals courts. For example, a person wishing to review an electronic version of a case docket (i.e. a list of all the papers filed in the case) cannot do so. Likewise, when the Committee sought to detennine the docket numbers ofthe first and last case filed in each ofseveral fiscal years, this intormation could not be gleaned from any publicly available sources. Part ofthe difficulty lies in the fact that the Court is still using a 20­ year old Wang computer system. This is undoubtedly the result oflimited budgets, and the Supreme Court is not the master ofits own destiny in that regard. The Legislature is the funding authority and needs to make sure that the Court's electronic infrastrudure is properly funded. The Supreme Court, which has supervisor; authority over the District Courts and Circuit Courts, has ensured that the lower courts' computer systems (which are more mission-critical given the significantly larger size oftheir easeload) are up-to-date. The Committee has heard much praise ofthe ease with which cases can be followed and data retrieved from the lower courts. There is a definite need, however, for these solutions to be applied at the appellate level as well. Given the relatively low cost ofcomputer technology in the current environment and the fact that the appellate system does not involve the sheer volume ofdata found in the lower courts, a much improved system could be devised and installcd at a reasonable cost. This should be a priority for the courts and the Legislature. The Committee conducted a survey ofother states and determined

48 that certain amenities are now widely available through the Internet. Other states (and federal courts) enable the public to access data about specific cases (names of parties, date ofappeal) and some permit on-line access to the docket sheets that show what has been filed in the case and what stage the case has reached in the appellate process. Such information would be helpful to the public and litigants because it would allow them to see the status ofappeal cases, but is not presently available in Hawaii's appellate court system. The Hawaii Supreme Court annually publishes some statistics about its overall caseload and posts them on-line at its website. The Committee found the information provided to be helpful, but only up to a point. First, the published statistics generally only compare the current year with the prior year and a single year five years earlier. This tends to obscure trends that develop over time. If graphs and charts showed an entire five or ten-year period, it would be easier for readers to detennine any trends (e.g., is the backlog getting better or worse; is the rate of increase accelerating; is the percentage ofdispositions by memorandum higher than three years ago, and so on). There is also no reason why the reports for past years cannot be posted on-line as well (presently they can be accessed in­ person at the Hawaii Supreme COUl1 Library). Second, the data presented in the Supreme Court's published figures can be confusing. As one example, lhe Supreme Court reports that it handles severa] thousand "secondary cases" each year. This is certainly commendable but it takes some further reading ofthe statistics to determine that "secondary cases" simply refers to the motions filed in each "primary case." Thus, a routine and unopposed motion to extend time to file a briefin the Smith v. Jones "primary case" would qualify as a "secondary case" and contribute to the impression that the Supreme Court handles thousands of"cases" per year rather than hundreds. While it is important to know how many motions the Court is handling to get an idea ofthe overall workload, simply providing the overall absolute number is not that helpful, particularly when they are labeled as "cases." It would be more useful to also know (1) the average number ofmotions filed in each case, (2) the percentage that are opposed, (3) the percentage that are routine

49 enough to be granted by a clerk or by one Justice without the involvement ofthe other Justices, and (4) whether these numbers are changing over time. One problem mentioned by a number of attorney were so-called Jenkins dismissals, wherein the appeal is dismissed without prejudice, subject to being re-filed, because of a defect in the form ofthe judgment bclow in failing to recite with sufficient clarity and detail that all claims have been disposed of. The Committee's study showed that there are as significant number of such dismissal s. This can skew the statistics and end up affecting the number ofappeals. Some appeals may be counted twice, once when they are first filed and once when they return following correction ofthe form ofjudgment below. Moreover, high numbers ofsuch dismissals may give the appearance ofa higher disposition rate, but the case has not been truly disposed ofas it is likely to return in a few months. (The fact that there continue to bc high numbers ofJenkins dismissals suggest either that the Court is being too rigorous in its requirements or that Bar members have not properly educated themselves about the requirements ofJenkins.) Several other important statistics are unavailable in the Supreme Court's annual report. First and foremost, there is no clear "aging" report. Virtually every large institution that must process cases or claims keeps a tally of how long the cases or claims have been pending. From the public's point of view, these aging figures are far more important than the sheer size ufthe backlog. The Committee was able to ask specific questions ofthe Court and learn about the aging ofcases, but this information should be more widely and publicly available. Median figures alone would not tell the story; there is a need for figures showing the number ofcases that are one year old, two years old, three years old and so on. To help readers understand the source ofthe aging problem, the statistics should show not only the time from notice ofappeal (which is also affected by the parties' delays or extensions in preparing the record and filing the briefs), but also the time from completion ofbriefing (which is exclusively within the Court's control). As with other statistics, aging statistics would be most useful if presented along with the same figures for other years so that comparisons could be

50 made and trends discerned. The argument could be made that ifthese statistics were widely available, trends that have developed over the past five to ten years would have become apparent to the public at an earlier date. With the galvanizing effect of such public knowledge resulting in early action, there might never have been such a prolonged backlog and a call for the Committee to be formed. Other statistics that could not be found in the official statistics included a clear statement ofthe number ofcases decided by SOO versus memorandum opinion versus published opinions. The official statistics do not clearly differentiate between SOO and memorandum opinions. This is significant, inasmuch as a major complaint the Committee heard was the frequent use of SOOs. Without readily available statistics, the Committee could not determine whether use ofSOOs has increased or decreased over recent years, if so by how much, and whether any change in the use of SOOs has impacted the number of memorandum opinions. As a result, the Committee is currently conducting its own survey and analysis ofthese issues. The Committee found a widespread perception that the Supreme Court is issuing fewer but longer published opinions and more SOOs. Careful review ofthe statistics reveals that the Court actually writes more published opinions per year than it did ten years ago. Given this, it may well be that the public perception that SDDs are more common than they were five years ago is also wrong. The Conmliltee's further investigation should answer this question, but in an improved system it would not be necessary to do an independent survey and analysis; the data should already be available. The available statistics also provide virtually no information about the productivity of individual Justices. Thus, ifone Justice is writing only halfas many opinions as another, the public has no easy way to know that. The Committee did not have access to any productivity statistics for individual Justices, but conducted its own survey ofall published opinions over thc past 20 years. From that, it was determined that there are significant differences in the number ofpublished decisiuns written by each Justice. There is currently no way to know whether low production in published opinions by one Justice was offset

51 by high production in SDOs and memorandum opinions or non-caseload work. The Committee considered thc pros and cons of publishing statistics that would show the producti vity ofindividual Justices and Judges in different areas. The conclusion was that the public would be better served by more information that would enable comparison ofthe Justices and Judges. First, their mere willingness to be subjected to such scrutiny would itselfhave a reassuring effect on a public which wonders whether every Justice and Judge is pulling his or her weight. Second, the information would be ofassistance to other entities that must make decisions that impact the Court, such as the Judicial Selection Commission considering retention or the Legislature considering additional funding. Third, the knowledge that the public was "keeping score" would likely stimulate the produetivity ofany Justice who happened to fall behind his or her peers. The drawbacks of publishing individual statistics are that it may promote strife and disunity on the Court, that poor performance by one individual can negatively impact the image ofthe entire Court and that, given the intangibles ofmany aspects ofthe Justices' work, comparisons may not be easy or fair. However, the Committee must assume that the Justices themselves are provided with some individual statistics showing where they stand. (Ifthey are not, then the Court should give consideration to this effective management tool). If so, the additional step of publishing some ofthose statistics should not cause the first or last ofthese problems. In summary, the Committee concluded that published statistics are displayed in a manner that makes the appellate courts' caseload appear higher than it really is and makes it more difficult to discern negative trends, such as the increase in the case backlog over time or the increase in the median age of cases. A revised approach to published statistics -- with a "warts and all" attitude that enables clear comparisons over time and plainly reveals the nature and extent of problems -- is needed. VI. PUBLIC CONFIDENCE IN THE APPELLATE COURTS While the Committee is primarily composed ofpracticing attorneys, it

52 included one non-attorney and endeavored to understand the lay perception ofthe appellate courts as well as the effect that various issues may have on the public. While the general public has some knowledge ofthe work ofthe lower courts, if not through direct experience as a party, at least through representations in the media (both factual and fictional), it has little ifany knowledge about the appellate courts. The public knows that from time to time an important decision is rendered that impacts their lives or resolves a public controversy, but the processes by which these decisions are made remain pretty much a mystery. Moreover, the media give the public little information about the appellate process. Thus, unlike the lower courts, public perception ofthe appellate courts rests to a greater degree on "word ofmouth," i.e. reports from friends and acquaintances who may have had an appellate experience or discussion with an attorney who may be handling an appellate matter. For this reason, the appellate courts need to consistently deliver satisfaction to the litigants in order to maintain public confidence in the system. To deliver that satisfaction, the courts need above all to make sure that the individual litigant believes that the process is fair. Every case has a winner and a loser, and one will undoubtedly have warmer feelings about the system than the olher, but both must feel that they had a full and fair hearing. Anything less leads, over the long term, to an erosion in the public's confidence, which is an essential requirement ofany successful legal system. Delay works against the feeling that a litigant is getting a full and fair hearing. Having a case remain undecided for years leads litigants to feel as if the system has forgotten them, as ifthey do not count or their case is not important. Although backlog and delay problems cannot be cured overnight, the public perception problem could be partly mitigated by increasing the amount of information that litigants are given about their case and where it is in the pipeline. Periodic updates (or the ability to check on-line) on the progress of one's case would reassure clients that their cases are not forgotten and are being attended to. The ability for litigants to see how many cases are ahead oftheirs in the line or to

53 reccivc an "estimatcd decision date" notification would be helpful in this regard. The Committee is mindful that the Supreme Court's physical resources are limitcd and that such initiatives will require computer resources the Court does not currently have. On the other hand, it is virtually certain that the old Wang system will soon bc replaced. Any such replacement should include a system that makes available to the parties the greatest possible amount of infonnation about the status and progress oftheir case. The problem oflong opinions referred to in earlier sections ofthis report creates its own difficulty for lay people. The longer the opinion, the more difficult it will be for the lay party to fully read and comprehend the opinion and detennine precisely why he/she won or lost. With respect to memorandum opinions, because they are not useable by non-parties as precedent, thcy are really written for the benetit ofthe litigants themselves. With that in mind, they should not only be short, but also in plain English understandable to a lay person. The feeling that a full and fair hearing was had is enhanced when the litigant can clearly understand the reasoning behind the court's ruling. By the same token, lay persons would be aided ifeven SDOs set out a one or two paragraph summary of the basis for the ruling. The Committee heard from some practitioners a belief that the number of appeals has declined because litigants are discouraged by the excessive delays in the appellate process. The Committee notes, however, that there is a close correlation between the number ofappeals and the number ofcases tenninated in the Circuit Court and that this relationship has remained constant. In the past three years, there has bccn a dccline both in filings and terminations in Circuit Courts and this has had the expected effect on the number ofappeals. Thus, the Committee could not conclude that the public is so discouraged by the appellate system that it is reducing its use ofthe system. The problem of insufficient useable decisional authority affects the litigants in their pocket books. Attorneys' tees are typically the largest part ofan appellant's cost in pursuing an appeal. These are increased where there is a lack ofdecisional authority for the lawyers to rely on in advising their clients. Without

54 decisional authority, lawyers must go outside of Hawaii for cases with answers, and even then the outcome is unpredictable. This expense and unccrtainty lcad to frustration and disappointment with the appellate system. It must be pointed out the Supreme Court and the ChiefJustice in particular have an admirable track record on communicating with the public through articles and speeches about the work ofthe courts, and these types of actions are vital in building and maintaining public confidence in the integrity and independence ofthc courts. Thus, while the Committee recommends various measures the appellate courts can take to address the problems they currently face, these steps should not be at the expense ofthe time and effort needed for continuing to reach out and communicate with the public through media and community forums. In summary. an independent, adequately financed, and respected judiciary is vital to our democracy. The Judiciary needs the support ofthe puhlic to maintain its independence and be given the financial support needed to function as it should, and that support can only come when the public feels that it is being well-served. VII. THE HSBA'S RELATIONSHIP WITH THE COURTS Because attorneys appear regularly before the various courts, the assumption held by most observers is that there is a healthy relationship and mutual understanding between lawyers and judges, regardless ofwhether the lawyers' clients are on the winning or losing side ofthe Judge or Justice's decision. To some extent, this assumption is correct when decisions in the lower courts are timely made and explained. ln the appellate courts, as this report reveals, the attorney-court relationship is quite different. Attorney frustration often arises because ofthe time taken by the appellate courts to reach a decision, or because the Justices have not published sufficient interpretations ofcritical laws. thus forcing attorneys to search other jurisdictions for out-of-state precedents for in-state issues. How can Bar members improve their relationship with the courts? How can the judiciary improve its relationship with the Bar? These are questions

55 that have driven the efforts ofvarious Bar Committees to find the problem areas and suggest solutions. Over the years, numerous attempts have been made by members of the Bar to find ways to improve the court system and resolve the issues ofbetter attorney participation in judicial evaluations. One catalyst for the Bar's current efforts and actions was the spirited discussion which dominated the Bar Retreat in January 2003, where attorneys clearly expressed their hesitance, at best, and fears, at the worst, to participate in judicial assessments. Together with the responses from the HSBA president's June email questionnaire described above, the Committee concluded that the reluctance of Bar members to openly give their candid and honest opinions about the courts or the performance of its judges was due primarily to the attorneys' fear ofretaliation or retribution that might occur from the very Judges or Justices whose performance the attorneys were attempting to help. A number ofattorneys have expressed concern that in any critique of judges or courts, the identities ofthe attorneys would somehow be discovered. Whether this concern is well-founded or baseless is difficult to quantify beyond the anecdotal input ofthose attorneys who are confident enough to speak out, albeit under assurances ofconfidentiality. IIowever, a problem exists whether fears of retaliation are empirically justified or merely perceived. What is of major importance is the harm that this fear does to the relationships between and among attorneys, Judges and Justices as well as to public confidence in the judiciary in general. At present, Bar members do not have an effective forum for constructive criticism ofthe appellate process. The Rule 19 Committee, which prepares judicial evaluations, focuses primarily on the lower courts and, in any event, its thirteen members arc appointed by the ChiefJustice. Despite the high qualifications ofthe Rule 19 Committee's members, it is perceived as being closely aligned with the Supreme Court and thus not the place offirst choice [0 debate criticism or change in the appellate system. The Court would go a long way towards creating a healthier

56 relationship with the Bar ifit took steps to eliminate the perception that those who speak out about the appellate courts will face some fonn of sanction. This can and should be done even ifthe perception ofa retaliatory environment is without basis in fact. It can only be done ifthe Court takes the lead, in word and deed, to repeatedly and publicly reassure attorneys and lower court judges that opposition to Supreme Court initiatives or public comment or criticism on Supreme Court actions will have no effect on the speaker's relationship with the Court, his or her career prospects, or any other aspect ofhis or her work. For its own part, the Bar should do more to communicate its members views on the subject ofthe appellate courts. Bar members have a duty to speak and write when they believe mistakes have been made or reforms are needed. As an institution, the HSBA has not actively worked to create the necessary forum and conditions for such debate and more should be done. For example, a regular feature in the Bar Journal in which practitioners professionally critique recent decisions by the Court and examine their potential impact (moderated by an editorial board to avoid mere "sour grapes" complaints) would be a positive development. The Bar Journal within the past year has taken steps in this direction, publishing a scholarly article on the need for oral arguments, but more can be done. Ifthe Bar members could give public voice to their concerns in a timely manner, instead ofcomplaining privately to each other for years, problems could be addressed early on, when they are first perceived, before they become more entrenched and harder to solve. VIII. RECOMMENDATIONS A. Recommendations for our Appellate Courts: 1. Assure prompt disposition ofappeals by creating internal court deadlines oftimeliness in compliance with ABA guidelines (i.e., 50% ofappeals should be decided within 270 days (9 months) and 90% decided within 365 days (l year) or less from the notice ofappeal, subject to such extensions oftime as may be sought by the parties and granted by the Court (e.g. to permit transcripts to be prepared,

57 supplementation ofthe record, or extensions ofbriefing). In order to provide time to eliminate the backlog, these guidelines should be phased in in annual increments such that the appellate courts are fully meeting them by three years from the date when the two new positions on the Intermediate Court ofAppeals ("ICA") are filled. To achieve this, the current size ofthe backlog must be reduced by 200 to 250 cases per year. 2. To achieve the ADA guidelines recommended above, adopt specific monthly and annual quotas for productivity by individual1ustices with respect to case dispositions, including numbers of published opinions, unpublished memorandum opinions and summary disposition orders ("Snos"), and the Chief1ustice should take steps to enforce those quotas. 3. Substantially rcduce the length ofall opinions (including majority, concurring and disscnting opinions). This can be enforced by imposing a "perjudge per year" page limit rather than attempting to limit the length ofany particular opinion 4. Implement improved procedures for transitional periods when Justices and Judges retire and are replaced, so that new Justices and Judges can be productive immediately. Help new Justices understand what is required ofthem in terms ofnumber ofdecisions per month and per year and the need to meet these targets immediately, without a "warm-up" period (see also Recommendation 0.2 below). 5. Diminish the number ofcivil appeals dismissed due to Jenkins violations, by amending court rules and the appendix of forms and periodically reminding District and Circuit Court judges ofJenkins compliance rules. 6. Enhance communication between the Supreme Court and ICA to address caseload management, assignment criteria, efficient allocation ofresources and means to decrease the number ofcases where the Supreme Court grants certiorari review oflCA decisions.

58 7. Ifthe appellate courts believe that there has been an increase in Judges' and Justices' "non-case workload" over the past ten years, the Supreme Court should take immediate steps to reduce that workload by eliminating it or reassigning it to other parts ofthe judiciary or the Bar. 8. Prioritize appeals within the group ofcases that are currently experiencing the longest delays (civil cases) so that cases where delay has the potential to cause more harm (e.g., emotional trauma in death or serious injury case, risk ofbusiness survival in commercial cases, loss ofwitnesses in cases without a fully developed record) are given priority over civil cases where delay would not present these risks. 9. Increase use ofthe court's appellate mediation program by seeking funding for one-half ofa full-time person to assist in this program (estimated to double the number ofcases successfully resolved each year ti'om the currcnt range of 15-20 to 30-40). 10. Ensure that any "tcmporary" or other backlog reduction methods are (a) published, (b) ofa truly temporary nature, and (c) subject to measurement and analysis oftheir efficacy and their impact on substantive rights. 11. Decrease the !lumber ofpublished opinions on issues of law that have been resolved in prior published cases or that concern repealed statutes, unless an important clarification is needed regarding circumstances that will likely recur. 12. Provide increased decisional authority that the public and bar can rely upon by increasing the range and diversity ofopinions which are published, with highest priority on issues not currently resolved in any published cases. 13. Refrain from using SDO method ofdisposition in cases where there is a dissent. 14. Publish a decision whenever two Justices believe it should be published.

59 15. Increase the number of oral arguments by, inter alia, holding oral arguments in cases likely to have split decisions, increase the number oforal arguments held in cases ofpublic importance and where the Justices have questions for counsel, and seek amendment ofHawaii law to allow exemption from oral argument when specified criteria are not met in individual cases so that the Court is not viewed as evading the law when it fails to hold oral arguments. 16. Enhance the Judiciary's website by adopting standardized means of keeping statistics that are useful for the courts, Bar and public in evaluating such issues as the aging ofcases, the number ofJenkins dismissals, changes in the clearance rate, performance measured against established standards, including compliance with ABA timeliness guidelines (see Recommendation A.I above), and trends that develop over time. Allow public online access to appellate docket sheets and more information about the status and progress of individual cases. 17. Include the data referenced in Recommendation No. 16 in the annual reports issued by the Judiciary. 18. Publish the criteria, standards and deadlines that the Court or Chief Justice use in (a) assigning substitute Justices, (b) declining to hold oral argument, (c) assigning cases to the ICA and (d) determining whether cases are resolved with published opinions, memorandum opinions or SDOs, and ensure adherence to those criteria and/or explication ofthe reasons tor deviating from them. 19. Dispel the atmosphere ofjudicial intimidation, retaliation and favoritism by leadership actions that assure both an appearance and reality offaimess; solicit reports regarding any improper judicial conduct, adopt and disseminate fair rules for conferring benefits of travel, training, court assignments, substitution ofJustices, assignments of special masters, commissioners, mediators and other positions for all courts, and enforce those rules evenly.

6D 20. Use a professional facilitator (such as the National Conference for State Courts) to help the Justices and Judges to work together to establish common goals, procedures, standards for measuring perfonnance, and means to make these goals and the above recommendations a reality.

B. Recommendations for our Hawaii State Bar Association: 1. Provide periodic appellate advocacy workshops and written reminders to memhers regarding compliance with appellate rules, including the Jenkins rule. 2. Assist in recognizing and recruiting the types ofvolunteer mediators that make the appellate mediation program a success. 3. Encourage attorneys to provide scholarly and thoughtful criticism of appellate decisions and case management procedures in Bar Journal, seminars and other moderated settings. 4. Appoint special committees like the present one when there are rising levels ofconcern among Bar members over appellate issues. or make the suhject ofthe appellate system a pennanent part ofthe work ofthe Bar's Judicial Administration Committee. Work with the Supreme Court to establish protocols and procedures by which any such committee can effcctivc!y communicate with the Supreme Court about members' concerns regarding the appellate process. 5. Ascet1ain whether there are administrative functions that currently take up court members' time that the appellate courts could delegate to the Bar in order to free up judicial resources for needed decisional work. 6. Encourage the Legislature to consider the items set out in Section D below.

C. Recommendations for Bar Members: 1. Review all appeals filings for applicable appellate rules, including

61 Jenkins standard, before filing, and calendar appropriate deadlines to complete appellate work on a timely basis. 2. Refrain from filing procedural motions or oppositions to such motions unless substantive rights ofclients are prejudiced. 3. Make concise arguments and provide relevant caselaw and record citations to assist the cault in understanding and locating relevant infonnation. 4. In cases where mediation has not been mandated by the Court, assist the appellate mediation program by participating in mediation where one party requests it, unless substantive rights ofclient are prejudiced. 5. Take a more active and less timid role in speaking out constructively and thoughtfully on appellate issues, including scholarly and thoughtful criticism ofappellate decisions and case management.

D. Recummendations for Other Bodies: I. The Legislature should ensure that Judiciary funding includes resources for the latest computer technology. 2. In evaluating the need to add additional judicial positions, the Legislature should be guided by the annual number ofappellate filings, rather than the size ofthe current backlog. 3. The Legislature should increase funding for the appellate mediation program to add at least one-halfofa full time position to pennit an increase in the number ofcases assigned to this program 4. The Legislature, Governor and Judicial Selection Commission must work together to ensure there is no lag time between retirement and replacement ofJustices and Judges. 5. The Judicial Selection Commission should (a) become more familiar with the pace at which Judges and Justices must work to meet current caseloads and (b) ensure that the ability to work productively and collaboratively at that pace is given the highest consideration as a

62 candidate qualification.

Respectfully submitted this 12th Day ofDecember, 2003,

I

£k~ £-u.a bflc- f:k~ , BEATRICE (BEADlE) L.K. DAWSON

63 -- SAMUEL P. KING, JR.

~~ HOWARD K.K. LUKE

SCOlT K. SAIKI

64 APPENDIX A Section III ofthe Report lists concerns mentioned by Bar members in thcir responses to the President's e-mail questionnaire are listed. The list in Section III only includes concerns that were mentioned by multiple respondents. For the sake ofcompleteness, the following is a list ofadditional concerns that were mentioned by various individual survey respondents but not repeated by others. I. Criminal defendants remain incarcerated during appellate delay; 2. Victims ofcrimes and torts must wait too long for resolution; difficult to take up case again after long delays; 3. Certiorari is granted too frequently and Supreme Court opinions are unnecessarily critical of ICA; 4. Process for selecting substitute Justices; 5. Supreme Court is unduly sensitive to public criticism; 6. Positive comments regarding courtesy ofstaff at Supreme Court Clerk's Office; 7. Office of Disciplinary Counsel is not sufficiently regulated; 8. Lack of facilities on the Big Island; 9. Need for more ICA judges, better pay for judges, and more funding for Judiciary; 10. Appellate judges are trying hard and want to be "right," often researching beyond what parties did; 1I. Undue reliance on appellate clerks to write opinions; 12. Too much finding ofharmless error.

65 APPENDIXB TURNOVER OF JUSTICES AND JUDGES IN THE APPELLATE COURTS SINCE 1982

MEMBERS OF lIAWAIl SUPREME COURT 4/18/80 (Date ICA created) to present

4/18/80-12/31/81 Richardson, CJ Ogata Menor Lum Nakamura

12/31/81-3/30/82 Richardson, CJ Lum Nakamura

3/30/82-12/30/82 Richardson, CJ Lum Nakamura Padgett Hayashi

12/30/82-4/26/83 Lum Nakamura Padgett Hayashi

66 4/26/83-9/7/83 Lum, CJ Nakamura Padgett Hayashi

9/7/83-12/3/89 Lum, CJ Nakamura Padgett Hayashi Wakatsuki

12/3/89-3/9/90 Lum,CJ Padgett Hayashi Wakatsuki 3/9/90-3/31/92 Lum, CJ Padgett Hayashi Wakatsuki Moon

3/31/92-9/22/92 Lum, CJ Wakatsuki Moon Klein Levinson

67 9/22/92-3/31/93 Lum,CJ Moon Klein Levinson

3/31/93-4/22/93 Moon, CJ Klein Levinson

4/22/93-5/13/93 Moon, CJ Klein Levinson Nakayama

5/13/93-2/4/00 Moon, CJ Klein Levinson Nakayama Ramil

2/4/00-5/19/00 Moon, CJ Levinson Nakayama Ramil

5/19/00-12/31/02

68 Moon, CJ Levinson Nakayama Ramil Acoba

12/31/02-6/27/03 Moon, CJ Levinson Nakayama Acoba

6/27/03-present Moon, CJ Levinson Nakayama Acoba Duffy

69 MEMBERS OF HAWAII INTERMEDIATE COURT OF APPEALS 4/18/80 (Date ICA created) to present

4/18/80-3/30/82 Hayashi, CJ Padgett Burns

3/30/82-5/14/82 Burns

5/14/82-6/24/82 Burns, CJ Heen

6/24/82-6/24/91 Burns, CJ Heen Tanaka

6/24/91-5/11/92 Burns, CJ Heen

5/11192-5/26/94 Burns, CJ Been Watanabe

5/26/94-10/31/94 Burns, CJ

70 Heen Watanabe Acoba

10/3 1/94-6/30/95 Burns, CJ Watanabe Acoba

6/30/95-1/28/99 Burns, CJ Watanabe Aeoba Kirimitsu 1/28/99-6/1/99 Burns, CJ Watanabe Acoba

6/1/99-5/19/00 Burns, CJ Watanabe Acoba Lim

5/19/00-10/2/00 Burns, CJ Watanabe Lim

10/2/00-present

71 Bums, CJ Watanabe Lim foley

72 Appellate Court Clearance Rates

350.0%

300.0% •,

2500%

200.0% • ---+--SCI. ... - ICA -A.-Combined Courts 1500% ..... f ...... ~,' 'f

, 50.0% .. " .... • • 0.0% '------1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 ---+--SCI. 883% 97.4% 432% 76.1 % 1071 92.9% 1237 123.0 106.1 81.3% 74.7% 90.4% .. ------_.._.. _------_. - .. - ICA : 1022 30.1% 51.4% 40.5% 54.5% 93.8% 306.1 210.0 86.2% 83.0% 87.6% 79.4% -- - --.----_..- -.-Combined Courts 90.9% 86.0% 45.7% 62.7% 93.1% 93.1% 156.3 i394-io07-it~8%' 78.5% 86.7%· Year # of Appeals 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 Total 755 730 838 822 822 778 739 794 852 818 766 757 transferred to ICA 138 123 257 311 220 162 132 150 232 241 225 257 Remaining with SCt. 617 607 581 511 602 616 607 644 620 577 541 500

# of Dispositions S.Ct. 545 591 251 389 645 572 751 792 658 469 404 452 ICA 141 37 132 126 120 152 404 315 200 200 197 204 Combined 686 628 383 515 1'65 724 1155 1107 858 669 601 656

Clearance Rates S.Ct 86.3% 97.4% 432% 76.1% 107.1% 92.9% 123.7% 123.0% 106.1% 81.3% 74.7% 90.4% ICA 102.2% 30.1% 51.4% 405% 54.5% 93.8% 3061% 210.0% 86.2% 83.0% 87.6% 79.4% Combined 90.9% 86.0% 457% 627% 931% 93.1% 1563% 139.4% 100.7% 818% 78.5% 86.7% Backlog by fiscal year

1600

1400

1200 c .,o ~ C­ 1000 .!!! 't:l .g~ - -+- SCt. Cl 800 .... -IGA .E c "; * Combined E .,..l!! 600 ~ o 400 •• •• 200 . .' ... .' .... I.···· .• .. . .. - .. a 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 - -+- S.Ct. 281 353 369 645 784 779 785 652 506 471 581 719 764 -- --- _u ____ - ..•. ·ICA 55 52 138 317 485 547 552 259 92 121 162 189 245 - * Combined 336 405 507 962 1269 1326 1337 911 598 592 743 908 1009 Appeals: :~ I 700

600 +--"""~-T

<') I-+-Appeals: ' ~ f-< ------

100 - --_.------_._....-

0 1989 1990 I 1991 1992 1993 ! 1994 I 1995 1996 1997T1998 I 1999 I 2000 2001 2002 I I-+-Appeals: i 609 567 I 755 730 838 I 822 I 822 778 739 I~ 852 I 818 766 757 trend lines

• - Total appeals -+--Combined backlog' . .• --Clearance rate (all)_J

1600 i 180.00%

1400 16000%

140.00% 1200 -

120.00% 1000

:.. 100.00% .' . 800 ... . • .-' ... - ... • • • • • .-, • •• • -,6 • 80.00% ~ :l ell 600 ~ 60.00%

400 4000%

200 20.00%

o 0.00% 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 ------

• Total appeal~u . 755 730 838 822 822 778 739 794 852______.LI 818 766 757 -+--Combined backlog 336 405 507 962 1269 1326 1337 911 598 59.LJ !43 908 1009 ...... -Clearance rate (all) 90.3% 86.0% 45.7% 62.7% 93.1% 93.1% 1563% 139.4% 100.7% 81.8% 78.5% 86.7% Trend of Increasing Pages

- -llI- Mean Pg (wghted avg. all Justices) ~ Total Pgs

35.0 ,..------, 2500

300 2000

25.0

1500 g: 20.0 I J'lJi co CI .. OJ .... co co <1J Q. Q. c :D co fti Ol 0 f0-'" :;; 150 f-- 1000

100 I I l!<. 500 50 I

00'------o 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 Total Published Opinions 49 58 62 53 51 41 66 63 49 74 Max Pg (avg. all Justices) 19.8 17.0 138 132 18.8 14A 200 12.0 17.0 25.0 Max Pg (absolute) 25 26 20 17 25 21 27 16 31 38 Mean Pg (wghted avg. all Justices) 8.7 80 7A 7A 9.9 8.3 83 6A 7.6 11A Median Pg (wghted avg. all Justices) 8.9 7.2 6.9 65 8A 8.2 6.9 6.9 6.7 9.6 Total Pgs 425 473 460 392 504 341 548 401 374 841

1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 Total Published Opinions 32 75 80 92 43 67 75 46 52 69 Max Pg (avg. all Justices) 31.33 37.6 40.2 54A 59.8 56.2 386 44A 51.6 67.2 Max Pg (absolute) 52 49 61 80 91 115 60 57 88 87 Mean Pg (wghted avg. all Justices) 18.28 18.94 20.12 2417 2667 1984 2262 20.97 23.78 2908 Median Pg (wghted avg all Justices) 15.33 16.7 18A 23 23.3 15.1 21.8 197 201 23.7 Total Pgs 585 1382 1609 2221 1146 1329 1699 903 1237 2005

Lum Court Moen Court total P9 avg 475 1412 mean pg avg 8 22 total opinions 566 631 :.Justice ·Yeaf .. 1tiopiniOns M

Hayashi 1983 6 24 12.8 10 77 Lum 1983 8 17 10.0 11 80 Nakamura 1983 15 25 11.5 11 173 Padgett 1983 20 13 4.8 4 95 Wakatsuki 1983 0 nfa nfa nfa Totals and Averages 49 19.75 8.7 9 425

Hayashi 1984 10 21 9.9 8 99 Lum 1984 8 15 5.9 5 47 Nakamura 1984 12 26 14.1 14 169 Padgett 1984 19 10 49 3 93 Wakatsukl 1984 9 13 7.2 7 65 Totals and Averages 58 17 8.2 7 473

Hayashi 1985 12 14 7.2 7 86 Lum 1985 13 20 9.0 7 117 Nakamura 1985 14 20 108 11 151 on Padgett 1985 12 43 5 51 7 {l'" Wakatsuki 1985 11 8 5.0 5 55 t- Totals and Averages 62 13.8 7.4 7 460

Hayashi 1986 6 15 75 6 45 Lum 1986 14 10 6.1 6 86 Nakamura 1986 14 17 11 1 11 155 Padgett 1986 12 16 60 6 72 Wakatsuki 1986 7 8 49 4 34 Totals and Averages 53 13.2 7.4 7 392

Hayashi 1987 6 25 133 12 80 Lum 1987 14 16 8.4 7 118 Nakamura 1987 15 24 13.8 14 207 Padgett 1987 9 13 5.8 4 52 Wakatsuki 1987 7 16 6.7 5 47 Totals and Averages 51 18.8 9.9 8 504 JUStice. ,Year:: .i#fOpilllb,.,s MaxF'age MeanPl!ge MecflanPage Total;P

Hayashi 1989 9 16 10.1 9 91 Lum 1989 18 27 8.1 6 146 Nakamura 1989 14 22 11.2 10 157 Padgett 1989 14 18 56 4 78 Wakatsuki 1989 11 17 69 6 76 Totals and Averages 66 20 8.3 7 548

Hayashi 1990 12 11 6.8 6 81 Lum 1990 16 11 56 5 89 Moon 1990 3 16 12.3 12 37 Padgett 1990 18 12 6.4 7 115 Wakatsuki 1990 14 10 56 5 79 Totals and Averages 63 12 6.4 7 401

Hayashi 1991 3 7 5.7 6 17 Lum 1991 16 31 7.1 5 114 Moon 1991 11 22 11.1 10 122 Padgett 1991 13 13 5.5 4 71 Wakatsuki 1991 6 12 8.3 9 50 Totals and Averages 49 17 7.6 7 374

Hayashi 1992 2 5 5.0 5 10 Klein 1992 10 38 13.5 12 135 Levinson 1992 9 34 17.2 16 155 Lum 1992 17 34 9.0 7 153 Moon 1992 19 24 14.3 14 271 Padgett 1992 7 17 6.6 5 46 Wakatsuki 1992 10 16 7.1 6 71 Totals and Averages 74 25 11.4 10 841 ·Justice.· ;,¥~r .' #IOI>illiO!lS 'Mal< Page" Mean Page , MedianPa\le. ,. Total Pages

Klein 1993 9 34 17.8 15 160 Levinson 1993 8 52 25.5 20 204 Lum 1993 2 14 11.0 11 22 Moon 1993 13 28 15.3 15 199 Nakayama 1993 0 nla nla nla Ramil 1993 0 nla nla nla Totals and Averages 32 31.33 18.3 15 585

Klein 1994 12 24 15.2 13 182 Levinson 1994 10 49 30.5 28 305 Moon 1994 23 42 20.0 18 460 Nakayama 1994 15 33 13.9 13 209 Ramil 1994 15 40 15.1 12 226 Totals and Averages 75 37.6 18.9 17 1382

Klein 1995 22 51 21.3 17 469 Levinson 1995 11 61 31.1 36 342 Moon 1995 22 36 19.3 17 424 Nakayama 1995 12 30 15.5 11 186 Ramil 1995 13 23 14.5 12 188 Totals and Averages 80 40.2 20.1 19 1609

Klein 1996 17 39 205 20 348 Levinson 1996 10 80 36.2 32 362 Moon 1996 42 53 223 20 935 Nakayama 1996 11 68 27.3 21 300 Ramil 1996 12 32 23.0 25 276 Totals and Averages 92 54.4 24.1 23 2221

Klein 1997 6 22 17.2 19 103 Levinson 1997 10 91 378 36 378 Moon 1997 13 54 210 19 273 Nakayama 1997 9 72 266 21 239 Ramil 1997 5 60 306 27 153 Totals and Averages 43 59.8 26.7 24 1146 Justice '?tilar . #/Opinions .Max Page , MaanPage .MedianPage," TCllaI Pages

Klein 1998 8 24 16.8 15 134 Levinson 1998 17 92 25.6 16 436 Moon 1998 14 26 14.9 13 209 Nakayama 1998 18 24 14.8 15 267 Ramil 1998 10 115 28.3 17 283 Totals and Averages 67 56.2 19.8 15 1329

Klein 1999 8 26 203 22 162 Levinson 1999 26 45 22.6 23 588 Moon 1999 11 32 19.9 20 219 Nakayama 1999 10 30 195 19 195 Rami! 1999 20 60 268 26 535 Totals and Averages 75 38.6 22.7 22 1699

Acoba 2000 4 20 15.5 16 62 Klein 2000 5 47 244 16 122 Levinson 2000 15 57 24.1 23 362 Moon 2000 13 29 154 15 200 Nakayama 2000 6 50 230 20 138 Ramil 2000 3 39 270 25 81 Totals and Averages 46 44.4 21.0 20 903

Acoba 2001 16 88 255 20 408 Levinson 2001 13 47 26.5 28 345 Moon 2001 11 48 24.0 23 264 Nakayama 2001 5 23 15.2 15 76 Ramil 2001 7 52 20.6 15 144 Totals and Averages 52 51.6 23.8 20 1237

Acoba 2002 13 69 27.8 23 361 Levinson 2002 14 87 374 30 523 Moon 2002 22 71 28.7 23 631 Nakayama 2002 8 62 29.9 27 239 Ramil 2002 12 47 20.9 17 251 Totals and Averages 69 67.2 29.1 24 2005