New Appellate Law May Shortcut "Death By A Thousand Days"

by Robert Thomas, Inverse Condemnation, May 15, 2016 

The Honolulu Star-Advertiser today ran a story by Timothy Hurley about a new bill adopted by the Hawaii legislature which puts certain cases on the appellate fast-track, "New law could speed process for Thirty Meter Telescope."

The bill mandates that in certain cases, any administrative appeals skip the usual first two steps (circuit court, Intermediate Court of Appeals), and go straight from the agency to the Hawaii Supreme Court.

We were interviewed for the story, and although the impact on the rebooted contested case about the Thirty Meter Telescope is pretty obvious, we're of the opinion that this measure wasn't designed to address only that case:

Robert H. Thomas, a veteran Honolulu land use and appellate lawyer, said he sees the new law shaving off a year or more of legal sparring on the way to the state’s highest court.

“Our state gets rapped frequently for our levels of process and regulation, and how they negatively impact projects such as TMT and economic growth generally,” he said. “The expense and timing of legal process is a large part of that.”

A series of recent projects seem to have died a “death by a thousand days” while tied up in agency process and court appeals, he said, and while he doesn’t think TMT was exclusively targeted by the law, it may have been the tipping point that prompted lawmakers to give it a try.

“This appears to be an effort to see if a more direct approach works, since it does seem that the Supreme Court of Hawaii is the final word on any big project anyway. Why not just send it straight to the justices, if they are going to decide it eventually?” Thomas said. “It certainly would cut down on the expenses by taking the case straight to resolution by the high court.”

The bill doesn't impact the substantive standard of review (the usual rules for admin appeals still apply), only the procedure. The big question regarding timing is whether the situation predicted by the Judiciary’s testimony will come to pass: that any time benefit saved by bypassing the circuit court and ICA would get lost when the Supreme Court has to grind through 175 potential additional matters on its docket, all of which the court would have no discretion to decline to review.

Presently, the court’s docket is nearly 100% discretionary, and the justices exercise that discretion to turn down a majority of cases that are presented to them. The Judiciary’s testimony predicted a “substantial backlog,” but the bill also gives the court the discretion to expedite cases that are of statewide importance, and consider those first. We assume a case like TMT would qualify. And is there any question that the Supreme Court would eventually be asked to review the TMT contested case, even if this bill had not been adopted?

PDF: HB 1581 HD2 SD2 CD1