Change in law gives panel new influence

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

Dennis Oda / doda@starbulletin.com

The state Intermediate Court of Appeals heard an appeal last month of Shane Mark’s conviction for shooting a police officer at the Kapolei Shopping Center. Defense attorney Dwight Lum addressed Judges Craig Nakamura, Mark Recktenwald and Katherine Leonard as bailiff John Parker held a sign indicating that Lum had five minutes left to complete his statements. City Deputy Prosecutor Donn Fudo is at left.

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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:

Daniel Foley, 61:

Alexa Fujise, 54:

Katherine Leonard, 49:

Craig Nakamura, 52:

Corinne Watanabe, 58: