By Rebecca A.

Copeland The February 2012 edition of the Hawaii Bar Journal provided a roundup of the 2011 statistics for the Hawaii appellate courts.1 This article considers the statistics for 2012. Were there any changes in the time it took the courts to dispose of appeals in 2012? Did the Hawaii Supreme Court and the Intermediate Court of Appeals release more opinions? Fewer? What other differences between 2011 and 2012 can be gleaned? Before providing the specific year in review breakdowns, several factors that influence the statistics should be noted:

2012 In Review
tiated by the filing of the notice of appeal,2 there are a number of factors thereafter that may effect when a case reaches final appellate disposition. Examples of factors influencing the time to disposition include: (1) when the clerks record and transcripts from the lower court proceedings are filed;3 (2) whether a party seeks a stay in the proceedings; and (3) whether one or more of the parties obtains an extension of time to file an appellate brief.4 Generally, the effect that these events have on the time a case is pending is beyond the appellate courts control. In addition, the following rules have been applied to the calculation of the statistics: The statistics are compiled using the information provided on the Hawaii Judiciarys website (and as first published

Hawaii Appellate Statistics

on a monthly basis on the authors blog).5

Other than in providing the overall total disposition statistics, amended opinions are not included in the opinion, memorandum opinion, or summary disposition order tracking for each individual courts statistics. Overall Appellate Court Statistics The appellate courts disposed of 961 appellate filings between January 1, 2012 and December 31, 2012. The courts combined issued 386 opinions, memorandum opinions, and summary disposition orders. Of the total 961 filings, 575 ended through some kind of order other than an opinion. Examples of such orders include the denial of reconsideration, dismissal orders, and the grant or denial of mandamus. The Hawaii Supreme Court disposed of 314 nonopinion filings. The Intermediate Court of Appeals disposed of 261 non-opinion

For practitioners, a client is typically concerned with how long an appeal takes from the date the notice of appeal is filed. The filing of the notice of appeal signifies the start of what can sometimes be a long appellate journey for the parties to the appeal. Although an appellate case is ini-

4 March 2013

HAWAII BAR JOURNAL

filings. Overall, the Hawaii Supreme Court issued 38 percent (or 363) of the total appellate dispositions, and the Intermediate Court of Appeals issued 62 percent (or 598) of the total dispositions (see Chart 1).

date at which time substituChart 3. Comparison of ICA Dispositions. tions of judges may have occurred.7 Opinions In 2012, the 31 Intermediate Court of SDOs Memo Ops 2011 Appeals issued published 239 67 opinions in 31 cases. Of those Chart 1. Total 2012 Appellate Dispositions. Opinions 32 cases, the averMemo SDOs age disposition 2012 Ops 247 42 time from the assignment of 0% 20% 40% 60% 80% the merit panel HAWSCT ranged from 38% three months to 46 months, with In compiling the statistics in Chart 3, an average time of 23 ICA it is noteworthy that in July there were no months. The average dispo62% published opinions by the Intermediate sition time was also 688 days Court of Appeals. or 99 weeks. The times are understandably longer when Hawaii Supreme Court Statistics calculated from the date the Generally, appeals are heard by the notice of appeal is filed with Hawaii Supreme Court on a discreCompared to 2011, the overall peraverage times of 33 months, 139 weeks, tionary basis either through the filing of centage of total dispositions was up slightand 973 days. Although the court cannot an application for transfer or an applicaly for the Hawaii Supreme Court and control much of the delay that occurs tion for writ of certiorari.8 After the down slightly for the Intermediate Court prior to the merit panel assignment, havcourt accepts review, there is typically no of Appeals. In 2011, the Hawaii ing some knowledge of the longer times further briefing or other procedural landSupreme Court issued 30 percent and the and how long an appeal will really take marks that must be met.9 However, if the Intermediate Court of Appeals issued 70 is important to attorneys and their clients. court requests additional briefing, this percent. The Intermediate Court of Appeals also may have an effect on the time it takes to issued 67 memorandum opinions and dispose of an appeal.10 Whether the Intermediate Court of Appeals 239 summary disposition orders in 2012. Hawaii Supreme Court decides to hear Statistics The percentages of opinions, memooral argument may also effect the Two disposition times are providtime to disposition.11 For Hawaii ed for opinions issued by the Chart 2. ICA Opinions. Supreme Court opinions, the time to Intermediate Court of Appeals: (1) disposition is tracked from the date from the date the notice of appeal is the application for certiorari or transOpinions filed, and (2) from the date the merit fer is filed. 9% panel is assigned. For those unfamilIn 2012, the Hawaii Supreme Court iar with appeals, the merit panel is the issued 41 published opinions. Of panel of judges assigned by the appelMemo Ops those cases, the average disposition 20% late court clerk to consider the case. time ranged from one month to 26 Under Hawaii Rules of Appellate SDOs months, with an average time of Procedure, Rule 45(f), the appellate 71% eight months. The average disposiclerk assigns the merit panel randomtion time was also 227 days or 33 ly upon the receipt of the last reply weeks. Compared to 2011, the brief (or, if no reply brief is filed, then Hawaii Supreme Courts average disfrom the date of a notice that no reply position time increased by two brief will be filed or the expiration of months from six to eight months. the time in which such brief could 6 In compiling these statistics, it is noteworhave been filed). The merit panel randum opinions, and summary disposithy that in June and September, there tion orders as compared to 2011 remained assignment is significant because it is at were no published opinions issued by the very close. In 2012, 71% of the courts that point that the court may consider the Hawaii Supreme Court. decisions were summary disposition case although other factors may play During 2012, the Hawaii Supreme orders compared to 77% in 2011; 20% into when consideration occurs (for Court also disposed of 106 applications were memorandum opinions compared to example, stays or recusals and reassignfor certiorari. Of those, the court accept13% in 2011; and 9% were published ments). In calculating the courts statised certiorari in 41 cases, rejected certioopinions compared to 10% in 2011 (see tics, original panel assignments govern the rari in 57 cases, and dismissed the certioChart 2). calculated disposition time not any later
6 March 2013
HAWAII BAR JOURNAL

Chart 4. Cert Disposition.

Dismisssed 7%

Accept 39%

Reject 54%

rari applications in 8 cases (see Chart 4). Although the rate of certiorari acceptance is below fifty percent, it is still high enough that parties may consider filing an application worth the time, effort, and expense. According to fellow local appellate practitioner Peter V .N. Esser: The high percentage of certs accepted by the supreme court last year, often accompanied by oral argument and published results, suggests that court has not only created a new and powerful remedy for appellate practitioners wishing to challenge the Intermediate Court of Appeals, but also contributed to the development of Hawaii common law expressed in detailed, well-reasoned opinions.12 Separate Opinions For the first time in 2012, the separate opinions issued by the appellate court justices and judges were tracked on a monthly basis and are compiled for the year here. The statistics tallied here include both opinions (whether published or not) and orders. If a judge issued both a concurrence and a dissent in the same case, the separate opinion received a tally in each column. A judge also received a tally if he or she joined in a dissent or concurrence issued by a fellow judge. Finally, separate opinions of circuit court judges are not separately tallied, but two were issued: one by Circuit Court Judge Kim and one by Circuit Court Judge Wilson. In the Intermediate Court of Appeals, Chief Judge Nakamura issued two concurring opinions and one dissent; Judge Foley issued one concurring opinion; Judge Fujise issued no separate opinions; Judge Leonard issued one concurrence and one dissent; Judge Reifurth issued one concurring opinion and two dissents; and Judge Ginoza issued two dissents. In the Hawaii Supreme Court, Chief Justice Recktenwald issued five

Your Local Bond Specialist providing License, Notary, and Bail bonds in Hawaii for more than 30 years. See how easy the process Meeting and Beating Mainland Firms Prices can be. Download the Same Day Service application from our web Same Day Answers site and apply for a new Same Day Issue bond now. Just fill out Same Day Delivery the form and fax!

Same Day Pick Up

808.522.1960 | toll free 800.701.2245 | www.808bond.com 550 Halekauwila St., Suite 303, Honolulu, Hawaii 96813

James Waldron Lindblad, CBA | Bonding Agent

March 2013

HAWAII BAR JOURNAL

concurring opinions and nine dissents; Justice Nakayama issued five concurrences and eight dissents; Justice Acoba issued 17 concurring opinions and 20 dissents; Justice McKenna issued two concurrences and two dissents; Justice Duffy issued one dissent; and Justice Pollack issued no separate opinions (see Chart 5). Conclusion Knowing how long an appeal may take whether in the Intermediate Court of Appeals or in the Hawaii Supreme Court is an important factor that attorneys and their clients should consider in
Chart 5. 25

In Review, 16 Haw. B. J. 4 (Feb. 2012). 2 Haw. R. App. P. 4(a)(1) (When a civil appeal is permitted by law, the notice of appeal shall be filed within 30 days after entry of the judgment or appealable order.); Haw. R. App. P. 4(b)(1) (In a criminal case, the notice of appeal shall be filed within 30 days after entry of the judgment or order appealed from.). 3 The Clerks Record is filed 60 days after the notice of appeal is filed, unless the complete record cannot be transmitted by then and the clerk obtains an extension. Haw. R. App. P. 11(b)(1). The transcript is filed between 45 days and 60 days after the notice of appeal is filed, unless the court reporter obtains an extension of time. Haw. R. App. P. 10(b)(1)(E). 4 Haw. R. App. P. 26(b) (The Hawaii appellate courts, or any judge or justice thereof, for

Acoba

20

15 Recktenwald

Recktenwald

10

Nakayama

Nakayama

Acoba McKenna McKenna

Pollack

Concur

Dissent
good cause shown upon motion may extend the time prescribed by these rules for doing any act, or may permit an act to be done after the expiration of such time.); Haw. R. App. P. 29(a) (Upon timely (1) oral request, or (2) written motion, or (3) letter request by a party, the appellate clerk shall grant one extension of time for no more than 30 days for the filing of an opening or answering brief and no more than 10 days for the filing of a reply brief.); Haw. R. App. P. 29(b) (Motions for further extensions of time to file briefs will be approved by a judge or justice only upon good cause shown.). 5 http://www.courts.state.hi.us; www.recordonappeal.com. 6 Haw. R. App. P. 45(f)(1) (If no reply brief is filed, then the merit panel is assigned upon receipt of a notice that the last reply brief will not be filed, or upon expiration of the time when the last reply brief could have been filed.) For consolidated appeals, the merit panel assigned to the oldest related appeal is used, or if there was no prior merit panel assignment, the clerk follows the same procedure as described above. Haw. R. App. P. 45(f)(2). 7 See Haw. Rev. Stat. 602-55 (Supp. 2011)
March 2013
HAWAII BAR JOURNAL

evaluating whether to seek review by a higher court. An appeal that may take between six months and several years may be expensive, time-consuming, and can inflict an emotional toll on the parties. There are other factors attorneys and their clients should consider, including whether an appeal will be successful, the importance of the appeal, and the potential outcome. Whether the time to disposition ranks higher or lower on the scale of issues to consider may only be answered on a client-by-client basis. Nevertheless, when comparing the 2011 and 2012 statistics there is one constant the Hawaii appellate courts continue to maintain a large caseload and that caseload will impact the time it takes to dispose of your appeal. __________________
1 Copeland, Hawaii Appellate Statistics 2011

Pollack

Duffy

Duffy

Mediation

&Arbitration

Believe and act as if it were impossible to fail. - Charles Kettering, Inventor

Dan Bent

Mediator & Arbitrator

Dispute Prevention and Resolution, Inc.

1003 Bishop Street Pauahi Tower Suite 1155 Honolulu, HI 96813

overwhelming you?
We've been there. Stress can turn to depression. Stress and Depression can accelerate self-medicating in about 15-18% of lawyers, and that can lead to disaster. We are here as a safe place you can turn to. Let us help you back to a brighter future. The services are free and strictly confidential, and communications are privileged. Call

Pressures of the law

531-2880 Neighbor Islands, call 800-273-8775 www.hawaiiaap.net sdixon@interpac.net

(governing panels and substitute judges for the Intermediate Court of Appeals) and 602-10 (Supp. 2011) (governing full court, oral argument, and substitute justices for the Hawaii Supreme Court). 8 Haw. R. App. P. 40.1 (certiorari); Haw. R. App. P. 40.2 (transfer); accord Haw. Rev. Stat. 602-58 (Supp. 2011) (governing applications for transfer) and 602-59 (Supp. 2011) (governing applications for writ of certiorari). 9 Haw. R. App. P. 40.1(i) (If the supreme court accepts the application for a writ of certiorari, the case shall be decided on the record and briefs previously filed.). For cases heard by the Hawaii Supreme Court by transfer from the Intermediate Court of Appeals, the same filing and briefing requirements apply. See Haw. R. App. P. 40.2(a); and Haw. R. App. P. 40.2(g) (Unless otherwise ordered by the supreme court while an application for transfer is pending, the submission and processing of an application for transfer shall not stay the time in which a party much act under any provision of these rules.). 10 Haw. Rev. Stat. 602-59(d) (Supp. 2011) (Supplemental briefs shall be accepted from parties only upon the request of the supreme court.). For transfer cases, the parties go through the same procedural milestones and filings as cases heard by the Intermediate Court of Appeals. See Haw. R. App. P. 40.2(a)(2) (An application . . . for an appeal may be submitted no earlier than 10 days after the filing of the record on appeal and no later than 20 days after the last brief is filed or could have been filed.); Haw. R. App. P. 40.2(g) ([T]he submission and processing of an application for transfer shall not stay the time in which a party must act under any provision of these rules.). 11 Haw. R. App. P. 40.1(i) (The supreme court may limit the question on review, may request supplemental briefs, and may set the case for oral argument.): Haw. R. App. P. 40.2(e) (There shall be no oral argument on an application for transfer unless ordered by the supreme court.); Haw. R. App. P. 40.1(f) (There shall be no oral argument on an application for a writ of certiorari unless requested by the court.). 12 The quotation is taken from an email sent by Mr. Esser to the author.

For over 20 years, we have achieved record results in all upscale neighborhoods! For a complimentary market analysis, call Patricia Case today at 526-CASE!

Rebecca A. Copeland is a solo appellate practitioner who concentrates her practice in the areas of appeals and appellate litigation. She maintains an active blog devoted to appeals at www.recordonappeal.com, where she compiles the statistics used for this article. Every month she rounds of the appellate courts statistics, including the time to disposition for Hawaii appeals. She is also the Founder and 2012-2013 Chair of the Hawaii State Bar Associations Appellate Section, a Member of the City and County of Honolulus Zoning Board of Appeals, and an Adjunct Professor at the University of Hawaiis William S. Richardson School of Law teaching first year law students in the art of appellate advocacy.

10 March 2013

HAWAII BAR JOURNAL