▪ 2006 Land Use in Review: New Appellate Track

The most recent case involving the long-standing controversy over the Waiahole Ditch, In re Water Use Permit Applications, ___ Haw. ___, 147 P.3 836 (Nov. 29, 2006) was not the usual blockbuster opinion or the latest in water rights, interim instream flow standards, and the public trust doctrine.  Indeed, it was an unsigned per curiam decision.  But I have included it within 2006's highlights simply because it illustrates the new appellate procedures in Hawaii state courts. 

Until the new procedures which became effective in July 2006, Hawaii state court cases had a unique appellate track.  After a trial court entered judgment, all appeals were made to the Supreme Court of Hawaii, which then assigned cases to the Intermediate Court of Appeals.  If a litigant was not satisfied with the decision from the ICA, she could seek review in the Supreme Court by way of an application for a discretionary writ of certiorari.  Most cases, however, were not assigned from the Supreme Court to the ICA, and the high court routinely disposed of most appeals.  The "up-then-down" procedure was unwieldy and an anachronism, a leftover from the days before the legislature created the ICA, and all appeals were straight to the Supreme Court.  The procedure also was a factor in creating a backlog of appeals on the Supreme Court's docket.

In July 2006, however, new jurisdictional statutes became effective, resulting in the ICA having primary appellate jurisdiction over all appeals, with the Supreme Court retaining discretionary certiorari review. 

Apparently, however, the drafters at the legislature did not catch all of the language regarding appellate jurisdiction scattered throughout the Hawaii Revised Statutes.  For example, the Water Code still states that appeals from contested case decisions by the Commission on Water Resource Management are made "directly to the supreme court."

After CWRM issued (yet another) order in the contest over the water in the Waiahole Ditch in July 2006, a party noticed its appeal on August 11, 2006 with the Supreme Court, even though the new appellate structure had become effective the month before.  Understandable, for considering the plain language of the Water Code, what else should the litigant have done?

The Supreme Court ordered the case transferred to the ICA, holding that the legislature's failure to amend the Water Code language was merely an oversight since it amended fifth-three other sections in the statute books relating to appellate jurisdiction, and that the legislature no doubt intended to amend the Water Code as well.  Lesson?  File all appeals with the ICA. 

It will be helpful after a few years under this system to see if the Supreme Court as a purely discretionary body experiences a shrinking of its docket, and a speedier process from filing to disposition.  It would be helpful to those of us who practice appellate law, for example, to establish criteria for when a decision by the ICA is "certworthy" and likely to be reviewed by the Supreme Court.  Hawaii has only one ICA, so there are no circuit or district "splits."  If the Supreme Court is simply to be yet another level of appellate review for dissatisfied litigants without clear standards for when it would be worthwhile to seek review, why does anyone think this will significantly decrease the court's workload?