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From: Lanny Sinkin <email@example.com>
Date: Oct 25, 2007 5:30 PM
Subject: The temperature is rising
Judiciary faults ferry for late ruling
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Photo gallery: Hawaii Superferry hearing
By Christie Wilson
Advertiser Neighbor Island Editor
A Judiciary official yesterday said actions by Hawaii Superferry officials were the reason a pivotal Hawai'i Supreme Court ruling was delivered less than a week before the service's launch.
Responding to criticism by Gov. Linda Lingle, Administrative Director of Courts Thomas Keller issued a statement saying, "The implication that the Hawai'i Supreme Court deliberately timed its decision to occur 'two days before' the Superferry was scheduled to start is wrong and does a disservice to the people of Hawai'i by undermining their trust in the justice system."
Legal sources said it is unusual for the judicial and executive branches to spar publicly, although perhaps not surprising considering the high-stakes nature of the Superferry case.
An appeal to the Supreme Court led to an Aug. 23 ruling that said the state Department of Transportation erred in granting $40 million in ferry-related harbor improvements an exemption from environmental review. A subsequent Maui Circuit Court ruling prohibited the ferry from using Kahului Harbor until the assessment was completed.
Lingle said Oct. 12 that she bore no responsibility for the Superferry crisis. "I think we made a decision based on the law at the time. The Supreme Court, for whatever their reason was, decided to wait over a year and a half to reach a decision and to do it two days before this service was set to begin," she said.
Keller pointed out that when the Supreme Court first notified the parties that oral arguments would be held Aug. 15, the Superferry was accepting reservations for travel beginning Sept. 5. On Aug. 11, the company moved up its launch date to Aug. 28.
After the Aug. 23 ruling, the company rescheduled its first voyages even earlier, to Aug. 26 with special $5 fares.
"The Superferry officials — and not the Supreme Court — shortened the time frame to the two days between the Supreme Court's decision and the commencement of service by advancing the start date," Keller said.
REQUEST FOR DELAY
Furthermore, Keller said, oral arguments and, hence, a decision were delayed at the request of Superferry attorneys.
Court records show that company attorney Lisa Munger filed a motion June 27 seeking a delay until Aug. 27 because of her previously scheduled Mainland vacation from Aug. 3 to 13. The motion also noted that Munger's co-counsel, Lisa Bail, had planned a Mainland vacation for Aug. 3 to 21.
Isaac Hall, attorney for the Sierra Club, Maui Tomorrow and the Kahului Harbor Coalition, objected to the delay because of news accounts that Superferry officials hoped to start service in late August.
The Supreme Court agreed to reschedule oral arguments for Aug. 23, issuing its ruling that same day in what observers say was unusual expediency.
Lingle also has criticized the length of time it took the high court to resolve a July 2005 appeal of a Maui court decision that favored the state and the Hawaii Superferry.
Judiciary spokeswoman Marsha Kitagawa earlier responded to those concerns, explaining the Supreme Court decided more than 300 other appeals during that period, with priority given to cases involving the fate of children and prisoners in state custody. The five justices also handled 90 original proceedings, 150 applications to review decisions of the Intermediate Court of Appeals, and 1,300 motions during that time.
The Lingle administration said it wanted to clarify the concerns expressed in Keller's statement before commenting.
Lingle has taken the high court to task before. The panel's case backlog was one concern cited by the governor when she lambasted the court as "dysfunctional" during a public speech in April 2003. Lingle also complained of what she said were inconsistent rulings and a tendency by the Supreme Court to shape state law rather than interpret it.
Keller would not comment on whether he had been directed by the Supreme Court justices to respond to the governor's criticism. The administrative director of the courts is appointed by the chief justice with the approval of the Supreme Court.
Four of the five justices — Chief Justice Ronald Moon and Associate Justices Steven Levinson, Paula Nakayama and Simeon Acoba Jr. — were appointed by Democratic governors. Associate Justice James Duffy Jr. was appointed by the Republican Lingle in 2003.
Duffy authored the 104-page opinion released Aug. 31 that explained the court's Aug. 23 ruling.
Retired Supreme Court justice Robert Klein said yesterday he could not recall a previous occasion when the court responded publicly to criticism over litigation.
However, the court did go public in 1997 after attacks on the long-held practice of Supreme Court justices selecting Kamehameha Schools trustees. In what was considered an extraordinary statement, the court defended the practice and its integrity, but voted later that year to turn the appointments over to a probate judge.
"It is pretty unusual, but the Supreme Court has come under criticism by the governor before," said Klein, referring to Lingle's 2003 remarks. "I guess they couldn't restrain themselves this time because the issue is so public."
Klein, a frequent supporter of Democrats when he was not on the bench, said it is not considered appropriate or ethical for judges to comment on their rulings outside of court.
However, Klein said, the court may have felt it was OK to speak out "to set the record straight." In this instance, the court is addressing the appeal process and not the actual decision, he said.
"In this situation, they are probably thinking the public needs to be educated about the process. It's fair to comment on the process, especially if the criticism threatens to undermine the court's authority and prestige."
Klein, who served on the court from 1992 to 2000, said he feels criticism from the state's top elected leader could affect public confidence in the courts.
"It does have some effect when you have a separate co-equal branch of government criticize another separate co-equal branch that really can't respond," he said.
He dismissed Lingle's suggestion that the court purposely timed the Superferry decision to create havoc.
"Any time you can get rid of a case in front of you is a good time. With so many cases (pending), timing is never, ever a determination," he said.
Frank Padgett, who served on the Hawai'i Supreme Court from 1982 to 1992, said he recalled routine assaults on the Judiciary by the late Honolulu prosecutor Charles Marsland, but doesn't remember mixing it up with the executive branch.
"After all, the bottom line is if you don't agree with the court ruling, that's what legislatures are for," Padgett said.
"It's unusual for the court to engage in a name-calling contest with the administration. When I was on the court, frankly, if we had gotten criticism in that manner we wouldn't have said anything."
But Padgett also said, "I didn't think there was any excuse for the two-year delay" in the Superferry appeal.
Attorney Hall said the importance of the issue may have prompted the Judiciary to speak out.
"With the administration and the Legislature contemplating overruling the Judiciary, you have the three branches of government engaged in a fairly momentous struggle right now," Hall said.
Jon Van Dyke, a constitutional law professor at the University of Hawai'i, said criticism by another branch of government puts judges in an "awkward position" because they aren't free to defend themselves. In this case, he said, the criticism is "a little unseemly" because Lingle's own appointee on the high court authored the Superferry opinion.
"The Supreme Court is handling a lot of cases and going through a transition, so (the time elapsed for the Superferry appeal) was not unusual. Appeals are complicated," he said.
Van Dyke advised Democratic Sen. Ron Menor last year on drafting a compromise bill that would have allowed the Superferry to begin service while an environmental review was done. The proposal was rejected by House leaders.
Van Dyke said recent restructuring of the appeals system is addressing the Supreme Court backlog and speeding cases.
The new process, which went into effect July 1, 2006, directs appeals from trial courts and state agencies to the Intermediate Court of Appeals, where six justices hear cases in panels of three. Appeals in important cases are eligible for transfer to the Supreme Court, and other cases can be sent directly to the higher court.
The number of appeals court judges was increased from four to six, and Van Dyke said he and others would like to see that number increased to nine to further expedite appeals.
An agenda item for the current special session includes confirmation of Lingle appointee Randal Lee to fill a vacancy on the intermediate panel.
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STATEMENT ISSUED BY HAWAI'I SUPREME COURT
Thomas R. Keller, administrative director of the state courts, issued this statement yesterday:
Reach Christie Wilson at firstname.lastname@example.org .
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