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