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POSTED: Sunday, November 16, 2008

A voter initiative that proposed halting the steel-rail transit system couldn't get on the November general election ballot.

               

     

 

 

INTERMEDIATE COURT OF APPEALS         The decisions by the six-member Hawaii Intermediate Court of Appeals are made by panels of three judges. The three are selected at random by the court clerk's office.         Chief Appeals Judge Mark Recktenwald designates the chief judge for each panel based on factors that include the judges' caseload and their expertise on the particular issues.         The losing side can ask the Hawaii Supreme Court to review the appeals court decisions. Like the U.S. Supreme Court, the state high court is not obligated to hear the appeal.         Some appeals must be transferred from the appeals court to the Hawaii Supreme Court upon request by the parties. These include:         » Court decisions involving “;a question of imperative or fundamental public importance.”; One such case involves a constitutional challenge to the state law that allows the Superferry to sail even though an environmental study on its impact has not been completed.         » Court decisions that declare a state law, county ordinance or agency rule violates the state or U.S. constitutions.         » Sentences of life in prison without possibility of parole.         Some cases may be transferred upon request if it involves:         » A legal issue that arises for the first time here or involves a “;novel legal question.”;         » Issues involving inconsistent prior decisions of the state appeals court or supreme court.

A state law approved last year that allows prosecutors to try to retroactively preserve harsher sentences is valid.

And $2 million that the Hawaii Insurers Council paid to a state-run insurance fund was an unconstitutional tax, which means more than $1 billion of state special funds could be in jeopardy.

The Hawaii Intermediate Court of Appeals issued those rulings this year, signaling the increasing prominence of the second highest state court which is not widely known outside the legal community.

It's the result of major changes in the way appeals are handled by the state's appellate courts - the Hawaii Supreme Court and the intermediate appeals court.

Previously, the state Supreme Court received all appeals and sent the more routine cases to the intermediate appeals court, which was considered the “;overflow”; court to help deal with the backlog of appeals.

But two years ago, a state law revamped the appellate system and now requires all appeals - except for a very limited number - to go directly to the intermediate appeals court.

Now, the intermediate appeals court hears most of the appeals from civil and criminal cases.

The losing side can ask the Hawaii Supreme Court to review the intermediate appeals court's rulings, but the high court is not obligated to accept them.

In nearly all cases the intermediate appeals court decisions stand and become binding on the state's lower circuit and district courts.

The result is that more decisions with widespread community impact and interest are coming from the intermediate appeals court. For example, the court heard arguments last month and will decide Shane Mark's appeal of his conviction for the murder of police officer Glen Gaspar at the Kapolei Shopping Center in 2003.

The new way of handling appeals could lead to a shift in Hawaii's jurisprudence.

Four of the six appeals court judges are appointees of Republican Gov. Linda Lingle, while four of the five state Supreme Court justices were appointed by her Democratic predecessors.

Some lawyers say it's still too early to detect any trends, but others privately say that the appeals court appears to be siding more with the prosecution compared to when it was considered more liberal, with all its judges picked by Democratic governors.

Three of four Lingle appointees to the appeals court have law enforcement backgrounds.

“;I don't think there are any particular patterns that one could point to that suggests anything other than the judges are doing their best to apply the law as they see it,”; said Chief Appeals Judge Mark Recktenwald, one of the Lingle appointees with a law enforcement background.

City Deputy Prosecutor Loren Thomas, who heads the office's appeal unit, said she doesn't believe the court is biased just because the appeals judges have prosecutorial backgrounds.

“;Their decisions do not bear that out, in my opinion,”; she said.

And Ronette Kawakami, head of the state Public Defender's appeals division, noted that “;it's too soon to say there's a trend.”;

A creation of the 1978 state Constitutional Convention, the appeals court initially had three judges to help the backlog of appeals and generally were assigned by the high court the so-called “;run-of-the-mill”; cases.

That changed when a law backed by the state Judiciary took effect two years ago that calls for appeals to go directly to the intermediate appeals court.

“;It was a fundamental change in the structure of the appellate courts in Hawaii,”; Recktenwald said.

Of the cases decided by the appeals court, 90 percent or more of them are not appealed to the high court or are upheld by the high court, according to Recktenwald and Chief Justice Ronald Moon of the Hawaii Supreme Court.

The goals of the new law included helping the courts deal with the backlog of cases, providing the Supreme Court more time to issue comprehensive opinions and allowing the courts to hold more hearings on the appeals open to the legal community and the public to view the judges and justices deal with legal issues.

Both Moon and Recktenwald believe the new system is working, with Recktenwald crediting his predecessor James Burns with doing a “;phenomenal job”; in handling the transition. Recktenwald replaced Burns, who retired last year because of the mandatory retirement law at age 70 for state judges.

Moon said the appeals court is now the “;workhorse.”;

“;Without the crushing backlog, there is more time (for the high court) to analyze these cases from various aspects,”; Moon said. “;I think this is very positive.”;

Among the lengthy, wide-ranging opinions by the high court was a 30-page decision updating the measure of when corporal punishment becomes abuse under state law, and a 93-page decision that at least temporarily bars the state from transferring lands that once belonged to the Hawaii monarchy.

Recktenwald said the appeals court now holds arguments on appeals the second Wednesday of each month. The Hawaii Supreme Court also hears arguments on major cases.

The law mandating the change is scheduled to end on June 30, 2010, but before the legislative session that year, the Judiciary must submit a report detailing how the new system is working.

If it is repealed, the high court again will get all the appeals first.

Some lawyers who initially were apprehensive believe the new system is working. Kawakami said the high court is now free to concentrate on major cases.

“;It's been better for everyone around,”; she said.

APPEALS COURT JUDGES

Mark Recktenwald, 53:

Born in Detroit, graduated from the University of Chicago and Harvard Law School. Worked at United Press International's Honolulu bureau, 1981-1983. Clerked for late U.S. District Judge Harold Fong, 1986-1987. Assistant U.S. attorney, 1991-1997, 1999-2003. Partner at Marr Hipp Jones & Pepper, 1997-1999. Director of Department of Commerce and Consumer Affairs under Gov. Linda Lingle, 2003-2007. Appointed by Lingle last year. Term ends April 30, 2017.

Daniel Foley, 61:

Born in San Francisco, graduated from the University of San Francisco and University of San Francisco Law School. Legal director for American Civil Liberties Union in Hawaii, 1984-1987. Partner in Partington & Foley, 1989-2000, and adjunct professor of civil rights at the University of Hawaii law school. Lawyer for three couples in landmark 1993 Hawaii Supreme Court ruling that paved the way for legalization of same-sex marriage until 1998 constitutional amendment negated the decision. Appointed by Gov. Ben Cayetano in 2000. Term ends Oct. 1, 2010.

Alexa Fujise, 54:

Born in Honolulu, graduated from Waipahu High School, University of Hawaii and University of Hawaii Law School. Law clerk for then Associate Justice Herman Lum of Hawaii Supreme Court. Assistant disciplinary counsel for Office of Disciplinary Counsel, 1981-1984. City deputy prosecutor and branch chief of the appeals division for Honolulu prosecutors, 1984-2004. Appointed by Gov. Lingle in 2004. Term ends June 9, 2014.

Katherine Leonard, 49:

Born in Fond du Lac, Wisc., graduated from University of Wisconsin and University of Hawaii Law School, editor in chief of law review. Clerked for then Associate Justice Robert Klein of the Hawaii Supreme Court. Joined Carlsmith Ball in 1992 and was a partner for more than 10 years, where practice included complex commercial, financial, real estate, environmental, trust and business law litigation and dispute resolution. Appointed by Gov. Lingle this year. Term ends Jan. 29, 2018.

Craig Nakamura, 52:

Born in Honolulu, graduated from Iolani School, University of Hawaii and Harvard Law School. Clerked for Judge Herbert Choy of U.S. 9th Circuit Court of Appeals. Associate with Goodsill, Anderson, Quinn & Stifle; assistant U.S. attorney, 1986 to 2004. Appointed by Gov. Lingle in 2004. Term ends April 7, 2014.

Corinne Watanabe, 58:

Born in Honolulu, graduated from Leilehua High School, University of Hawaii and Baylor University Law School. Worked at Attorney General's Office starting in 1974, serving as attorney general, 1985-1987, first deputy attorney general, 1984-1985 and 1987-1992. Appointed by Gov. John Waihee in 1992. Term ends May 10, 2012.