Lingle says The state Supreme Court is dysfunctional, and it's up to Hawaii's legal community to fix it, says Gov. Linda Lingle.
high court is
in disarray
The governor claims judges
attack each other instead of casesBy Richard Borreca
rborreca@starbulletin.comIn a speech yesterday, Lingle said since she made public the names of the six candidates for a Supreme Court nomination, she has been flooded with complaints about the state's highest court.
"I would say in many instances, that almost across the board, people say the Supreme Court is dysfunctional," Lingle said at the annual Federal District Court Conference luncheon at the Halekulani Hotel.
The problems, according to Lingle, are that the court is dramatically backlogged; the five justices do not get along and use their legal opinions to snipe at each other; the court lacks a legal consistency; and it rarely permits oral arguments.
Lingle's Supreme replacements
Gov. Linda Lingle has named six potential nominees to the vacant state Supreme Court seat. She has until mid-April to make her selection, which must be confirmed by the state Senate. The candidates are two prominent attorneys, James Duffy and Lowell Chun-Hoon, and four Circuit Court judges -- Eden E. Hifo, Sabrina McKenna, Richard Perkins and Richard Pollack.
Lingle said one judge told her the court had 790 cases pending.
Court observers who asked not to be identified, acknowledged that the justices -- Chief Justice Ronald Moon and associate justices, Simeon Acoba, Steven Levinson and Paula Nakayama -- are divided.
One observer pointed to a case in which Levinson described Acoba's argument as "puerile."
"The court needs a mediator or a counselor to get itself together," another court source said.
Lingle agreed, saying that she is taking the reported court problems into consideration when she picks her nominee to replace Justice Mario Ramil, who resigned.
"Knowing what I know now, this lack of collegiality, the backlog of cases, it is a consideration," Lingle said.
Moon, according to his office, was traveling on the mainland and unavailable for comment. Judiciary spokeswoman Marsha Kitagawa, in a written response, said so far 381 cases are briefed and awaiting disposition at the Supreme Court.
"Another 251 are briefed and awaiting disposition at the intermediate court of appeals. We hope the governor will support the Judiciary's request to the Legislature to fund two additional judgeships at the intermediate court of appeals," Kitagawa said.
She added that the court hoped Lingle "will appoint a justice to the Supreme Court who is a real workhorse and able to engage in collegial discourse necessary to appellate adjudication."
In her speech, Lingle said the public's confidence in the court system is shaken when the court has no consistent legal view.
"We depend on the courts to be fair and consistent. When you don't have consistency in opinions, it means there are other things at work that are motivating the decisions, other than the law. Something else is being taken into consideration, otherwise you would have some level of consistency," Lingle said.
She added that court critics have told her that the justice's legal opinions include personal comments "instead of disagreeing on the law, as they should be doing."
Hawaii Bar Association President Doug Crosier, speaking for himself and not on behalf of the bar association or its board, said he also had heard of problems on the court.
"I have heard that there is a serious situation of disharmony within the court, it is disturbing that the management of the court is in that condition," Crosier said.
"The Supreme Court should be a body that represents a respect for each others' views without unnecessary personal attacks among themselves," he added.
Jeff Portnoy, an attorney who attended Lingle's speech, said that "to the extent that the governor is repeating what she has been hearing from lawyers and judges, it has to be taken seriously."
"These people are suggesting systemic problems, there is no question from reviewing decisions there appears to be some significant personality issues," Portnoy said.
But it is difficult to have the matter brought up for public discussion.
As Portnoy said, "My colleagues were all wide-eyed and impressed that the governor took this opportunity to express what she has learned about the court."
Attorney Ted Baker added that there appears to be disagreement over the issue of oral arguments.
"Strongly worded opinions have been exchanged about the lack of oral argument in cases over the past five or six years, especially in cases of great public importance such as the 'resign-to-run' case involving Mayor (Jeremy) Harris or the (Byran) Uyesugi murder case," Baker said.
"Some feel that litigants are being denied their final day in court and that the public is being deprived of its only real opportunity to see the Court in operation," Baker said.
Lingle admitted that attorneys will find it difficult to challenge the state's highest court.
"We are counting on the courts to be fair and honest, but in a real practical sense, only those of you in the legal community can do anything about policing the judiciary, so don't let us down," Lingle said.
This is not the first time Lingle has tangled with the Supreme Court. After giving her State of the State address, she issued an apology for misstating a Supreme Court ruling regarding state labor law, and in his own state of the judiciary speech, Moon mentioned that Lingle had incorrectly cited the court opinion.
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