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A Needs Analysis of an Intermediate Appellate Court Laurence C William Mitchell Law Review Volume 7 | Issue 1 Article 7 1981 A Needs Analysis of an Intermediate Appellate Court Laurence C. Harmon Gregory A. Lang Follow this and additional works at: http://open.mitchellhamline.edu/wmlr Recommended Citation Harmon, Laurence C. and Lang, Gregory A. (1981) "A Needs Analysis of an Intermediate Appellate Court," William Mitchell Law Review: Vol. 7: Iss. 1, Article 7. Available at: http://open.mitchellhamline.edu/wmlr/vol7/iss1/7 This Article is brought to you for free and open access by the Law Reviews and Journals at Mitchell Hamline Open Access. It has been accepted for inclusion in William Mitchell Law Review by an authorized administrator of Mitchell Hamline Open Access. For more information, please contact [email protected]. © Mitchell Hamline School of Law Harmon and Lang: A Needs Analysis of an Intermediate Appellate Court A NEEDS ANALYSIS OF AN INTERMEDIATE APPELLATE COURT LAURENCE C. HARMONt & Gregory A. Lang St The increased workload of the Minnesota Supreme Court, with its con- comitant backlog and delay, has resulted in various ameliorativepropos- als, one of which is the creation of an intermediate court of appeals. In this Article, Mr. Harmon and Mr. Lang review the histog of the current problem and critically assess the various alternative proposals. They con- clude that the only adequate solution is the creation of an intermediate court of appeals. I. INTRODUCTION ........................................... 52 II. HISTORICAL PERSPECTIVE ............................... 53 III. ALTERNATIVES TO THE CREATION OF AN INTERMEDIATE APPELLATE COURT ...................... 55 A. Additionaljudgeships .............................. 56 B. IncreasingJudicial Eteng ........................ 58 1 Restricting Oral Arguments ...................... 61 2. Limiting Briefs ................................. 63 3. Reducing the Number of Witten Opinions ......... 64 . Increased Use of Staff ........................... 68 5 Use ofjud'ctl Panels .......................... 70 C Limiting the Number of Appeals ..................... 71 t Mr. Harmon, who is a graduate of Stanford College of Law, is the Minnesota State Court Administrator, a position he has held since 1976. Mr. Harmon is a member of the California, Minnesota, Oregon, and American Bar Associations. * Mr. Lang is the Director of the Minnesota Supreme Court Judicial Planning Committee. He is a graduate of the Hamline University School of Law, and is a member of the Minnesota and American Bar Associations. f The authors wish to thank those who assisted and advised them in preparing this Article. Particular thanks go to the Judicial Planning Committee, especially Judge Clinton W. Wyant, William Cooper, F. Kelton Gage, Dennis E. Howard, Thomas L. Johnson, C. Paul Jones, Judge Gerald W. Kalina, Judge Harold G. Krieger, Professor Fred L. Morrison, and Senator Robert J. Tennessen. The authors are also indebted to Janet Marshall, Staff Associate, Judicial Planning Committee, for gathering and analyzing the data set forth in this Article; Kyle Aiken, Staff Attorney, Judicial Planning Committee, for her editorial advice; and Michael Johnson, Joanne Friend, and JoAnne Wodash for their assistance. Published by Mitchell Hamline Open Access, 1981 1 William Mitchell Law Review, Vol. 7, Iss. 1 [1981], Art. 7 WILLIAM MITCHELL LAW REVIEW [Vol. 6 IV. CREATION OF AN INTERMEDIATE APPELLATE COURT ....... ,.......... .......... ....... ............ .......... 78 V . CONCLUSION .......................................... 84 I. INTRODUCTION Courts are chronically overworked. There never seems to be enough judges or staff. Funds are tight. There is not enough space, file cabinets, typewriters, or any of the usual supplies and support services that enable an enterprise to exist-let alone flour- ish. But the central and inescapable problem is that there is too much work, and there are not enough people to get it done. The result is precisely what happens when any enterprise is flooded with business: the work piles up and remains undone, delays de- velop, and the frustrated workers search for solutions. In the court environment, the problem is compounded because the number of workers cannot be expanded as the workload' grows, and the workload itself cannot be controlled. Courts, indeed, stand alone among institutions: business is always too good, and as the econ- omy gets worse, business gets better. Overwork in the judiciary is so pervasive that it may be said to be both characteristic and endemic. As new courts are created and new judgeships authorized, these courts and judges are immedi- ately overwhelmed with work; the situation never seems to im- prove. Overwork is prevalent and the judiciary is accustomed to it; nevertheless, some questions must be asked. How much work can judges handle and still do justice? What shortcuts can courts take to relieve their burdens and yet deliver a high-quality system of appellate review? Finally, at what point may we conclude that courts deserve some relief? The purpose of this Article is to explore these questions as they relate to the Minnesota Supreme Court. This Article will examine the frequently proposed alternatives to the creation of an interme- diate appellate court and analyze the advantages and disadvan- tages of these alternatives as they relate to the solution of the Minnesota Supreme Court's workload problems. 2 This Article also discusses the creation of an intermediate appellate court and 1. For the purposes of this Article "court workload" means the number of cases filed and the number of written opinions, and "delay" means the time period between the notice of appeal and the decision. 2. See notes 21-114 thfra and accompanying text. http://open.mitchellhamline.edu/wmlr/vol7/iss1/7 2 Harmon and Lang: A Needs Analysis of an Intermediate Appellate Court 1981] INTERMEDIATE .4PPELLATE COURT SYMPOSIUM attempts to illustrate the superiority of such an approach. 3 II. HISTORICAL PERSPECTIVE Since at least the mid- 1960's, there have been sporadic attempts on the part of various study groups and commissions to propose methods to enable the court to dispose of its workload and gener- ally improve the appellate process. In September of 1966, for ex- ample, the Minnesota Citizens' Conference to Improve the Administration of Justice proposed a unified court structure that 4 included a supreme court and an intermediate court of appeals. In March 1968 the State Judicial Council 5 undertook a study of the supreme court's "excessive case load."'6 The following Decem- ber, the Council adopted a subcommittee report 7 calling for the enactment of legislation to increase the membership of the Minne- sota Supreme Court to nine justices and two commissioners. 8 The subcommittee report also called for an amendment to article VI, section 1 of the Minnesota Constitution permitting the legislature to create an intermediate court of appeals. 9 The subcommittee considered and rejected the alternatives of expanding the appel- late jurisdiction of the district courts, noting that such an appellate division of the district court would provide only insubstantial relief to the supreme court. 10 Concluding that a constitutional amend- 3. See notes 115-29 infra and accompanying text. 4. See Minnesota Conference on Courts, The Consenus of the Minnesota Citizens' Confer- ence To Improve The Administration Ofustice, BENCH & B. MINN., June 1967, at 10, 11. 5. The State Judicial Council was "created for the continuous study of the organiza- tion, rules and methods of procedure and practice of the judicial system of the state, and of all matters relating to the administration of said system and its several departments." MINN. STAT. § 483.01 (1980). 6. Minnesota Judicial Council Minutes (Mar. 29, 1968). 7. The report was prepared by the Sub-Committee on Excessive Appellate Caseload. 8. See THE JUDICIAL COUNCIL OF THE STATE OF MINNESOTA, BIENNIAL REPORT 18, 21 app. (1968) [hereinafter cited as BIENNIAL REPORT]. 9. See id. The Judicial Council's subcommittee, and 18-member group composed of attorneys and judges, was persuaded by statistics revealing that the volume of cases before the supreme court had increased by more than 100% during the preceding decade, result- ing in a delay of 16 months in processing appeals. The subcommittee found that the court was issuing more than 300 written opinions annually by 1967, or an average of more than 40 opinions per justice. See id at 19. In addition, they discovered that the number of cases considered by the court had increased from 192 to 277 between 1965 and 1967. See id. 10. See id at 21-22. The subcommittee noted: Expansion of the appellate jurisdiction of the District Courts. .involves a constitutional problem. Article VI, Section 1 of the Constitution provides: "The judicial power of the state is hereby vested in a supreme court, a dis- trict court, . and such other courts, ... withjuritsdiction inferior to the dis- /n'a court as the legislature may establish." Published by Mitchell Hamline Open Access, 1981 3 William Mitchell Law Review, Vol. 7, Iss. 1 [1981], Art. 7 WILLIAM MITCHELL LAW REVIEW [Vol. 6 ment would be necessary to create an intermediate court, the sub- committee recommended that "immediate action should be taken to give the legislature the power to establish an intermediate ap- pellate court whenever necessary."" In 1968, the Governor's Commission on Law Enforcement, Ad- ministration of Justice and Corrections concluded that the estab- lishment of an intermediate appellate court
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