CRISIS in the SUPREME COURT Hugh J. Rosellini*

CRISIS IN THE SUPREME COURT Hugh J. Rosellini*

If a remedy is not found for the congestion in the Supreme Court of Washington, it will almost inevitably become necessary to "ration" justice. By 1985, the backlog will be so great that if cases are heard in order of their filing, it will mean that more than ten years will elapse between the filing and the adjudication. The Washington constitution and statutes give priority to certain classes of cases. The constitution grants to the defendant charged with a crime priority on the trial calendar. By statute, condemnation cases and juvenile court cases are given priority. Election law cases and suits affecting state officials or the operation of governmental agencies have priority by force of practical necessity. The legislature may create other priorities. Sound public policy requires that such cases also be given priority in the supreme court. Soon the cases having priority for hearing may preempt the supreme court calendar. This would mean that there would be no room on the calendar for other cases, and a law-abiding, taxpaying litigant could not be at all sure that his appeal would ever be heard. Under such circumstances, what could the court do but ration the type and number of cases to be heard? Thus not only would justice be uncon- scionably delayed by the backlog in the supreme court, but, in some cases, would be denied outright. When the 1967 legislature passed Senate Joint Resolution No. 6, proposing a constitutional amendment to provide for a court of appeals, an important step was taken toward the achievement of a reform which is not only needed but imperative in this state. It was not the first step by any means, but it was one toward which the ef- forts of many concerned citizens have been directed for a number of years and one which is indispensable if the law's delay is to be cured. Without a constitutional amendment, there is very little that can be done to avert disaster to the administration of justice in Washington. The phenomenon of court delay is not new. In the year 1215 in the Magna Charta, it was stated: "We will deny justice to none or delay it."

* LL.B., University of Washington, 1933. Judge, Washington State Supreme Court. CRISIS IN THE SUPREME COURT

Charles Dickens, in "Bleak House," describes an instance, which, though it may not be attributable to a backlog in the court, nevertheless portrays a common image of the law's delay:

Jarndyce and Jarndyce drones on. This scarecrow of a suit has, in the course of time, become so complicated, that no man alive knows what it means. The parties to it understand it least; but it has been observed that no two Chancery lawyers can talk about it for five minutes, without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce, without knowing how or why; whole families have inherited legendary hatreds with the suit. The little plaintiff or defendant, who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled, has grown up, pos- sessed himself of a real horse, and trotted away into the other world. Fair wards of court have faded into mothers and grandmothers; a long procession of Chancellors has come in and gone out; the legion of bills in the suit have been transformed into mere bills of mortality; there are not three Jarndyces left upon the earth perhaps, since old Tom Jarndyce in despair blew his brains out at a coffeehouse in Chancery Lane; but Jarndyce and Jarndyce still drags its dreary length before the Court, perennially hopeless ...

Delay of justice is in itself an injustice. An act of delay compro- mises the rights of a litigant and imperceptibly corrodes the founda- tions of government. Although Washintgon has a simplified and good court system, it is nevertheless beset with problems of delay. To understand the cause of supreme court congestion, it is necessary to examine that court's structure. The judicial article of the state constitution, article 4, provides in section 1 that the judicial power of the state shall be vested in a supreme court, superior courts, justices of the peace, and such infe- rior courts as the legislature may provide. In section 2, it provides that the supreme court shall consist of five judges, a majority of whom shall be necessary to form a quorum, that the decisions of the court shall be in writing and shall state the grounds therefor, and that the number of judges may be increased by the legislature, which is also given the power to provide that the court shall sit in departments. It thus can be seen that the constitution provides for only one appellate court. The size of the court may be increased, but it can only function as a supreme court composed of five judges. Its jurisdiction cannot be contracted nor can any of that jurisdiction be dele- gated to another court. GONZAGA LAW REVIEW [Vol. 3

In 1889, when Washington became a state, the supreme court consisted of five judges and eleven judicial districts, with eleven superior court (trial) judges. The population of the state at that time was 239,544. In 1909, the legislature increased the number of judges of the supreme court to nine. At that time there were thirty- seven trial judges in twenty-three judicial districts. In 1910, the federal census showed the population in the state to be 1,141,000. In 1963, when the legislature provided for the appointment of pro tern judges to aid the court, our population stood at 3,050,000. Thus it can be seen that our population had increased approximately 190 percent. Today it stands at 3,203,218. To accommodate this growth, the number of trial judges (superior court) has been increased to eighty sitting in twenty-seven judicial districts; yet the manpower of the supreme court up to 1963 remained the same-nine supreme court judges.

It is predicted that, by 1985, the population of this state will be as high as 5,477,100. [See Charts Nos. 1 & 2] The projections of the population growth are from three sources: the Schmid report, the United States Bureau of the Census, and the report of the Wash- ington State Department of Commerce and Economic Development.

Calvin E. Schmid is executive secretary of the Washington State Census Board and is required by statute (Chapter 175, Laws of 1967) to determine the population of every city and town in the

CHART No. 1 Spring, 19681 CRISIS IN THE SUPREME COURT

CHART No. 2 state for the purpose of distributing funds from the state treasurer. The Schmid report was prepared prior to Boeing's accelerated expansion program, and it is now generally agreed that its estimate of population growth is too conservative. The United States Census Bureau's projection shows a more rapid population growth for the state of Washington than does the Schmid report, but it likewise is probably too conservative. I have chosen to base my predictions upon the report of the Washington State Department of Commerce and Economic Devel- opment, which seems to be a more correct estimate than the other two, since it utilizes known factors of growth between 1965 and 1968 and since its projections for 1967 coincided with the actual growth experience.' To visualize the impact that this increase will have, consider the fact that this projected population figure means that 2,273,882 more persons will be living in this state seventeen years from now. This means twelve new cities the size of Spokane; more than forty- nine cities the size of Yakima; more than twelve cities the size of Tacoma; more than sixty-one cities the size of Bellingham; and almost four cities the size of Seattle. It is also necessary to envision the fact that these people will, of course, be engaging in all the

1 The Backlog Projection charts, pp. 15 and 27, however, are based upon the Schmid report. GONZAGA LAW REVIEW [ Vol. 3

activities which are presently engaged in and receiving all the services which are presently rendered in these cities. In other words, using Spokane as the measuring factor, it means that there will be twelve additional police departments the size of that which now serves Spokane, twelve additional fire departments, twelve additional garbage collection facilities, twelve additional school systems to accommodate the number of students now taught in Spokane, twelve additional park departments, twelve additional utility services comparable to those now serving that city, plus twelve each of all the industries, businesses, cultural facilities, sports accommodations, buildings, homes, streets, and welfare services. This list is by no means exhaustive, but it gives a picture of the degree of expansion which we face in a very few years. The increase in the number of persons living within the bor- ders of the state does not account entirely for the tremendous expansion of court business. It is the increasing complexity of life which has accompanied this population growth, enhanced by tech- nological developments and industrialization. In 1909, the automobile was a curiosity; the aerospace in- dustry existed, if at all, in fantasy, and, needless to say, the con- cept of nuclear energy had not entered even that realm. The simple relationships which characterized the society of 1909 quite naturally produced a great deal less complicated litigation than do the intri- cate involvements of people in a highly industrialized society. Transportation alone, and particularly the automobile, pro- duces a mass of litigation. Other areas of litigation which have expanded with the expanding industrial society include labor relations, eminent domain, the activities of administrative bodies, municipal corporations, business corporations, taxation and con- struction contracts. Also, the fact cannot be overlooked that a complex society is a setting in which criminal activity does not tend to diminish but rather to increase, and the rights of defendants in criminal cases, as recognized by the United States Supreme Court, particularly in recent years, demand the attention of appellate courts. Since 1962, when indigent defendants were held entitled to free counsel and free transcripts for appeal, indigent appeals in criminal cases have increased more than 100 percent.2

2 The records of the clerk of the supreme court show the following numbers of criminal appeals filed in the supreme court and the percentages of indigent appeals for the following years: Spring, 1968] CRISIS IN THE SUPREME COURT

It would appear that increased population growth creates a greater incidence of lawsuits.' From 1956 through 1961 (except for 1960 when it rose to one lawsuit filed per 47.8 persons, lawsuits per population unit remained quite consistent with one lawsuit filed for every 48 persons. However, in 1962 the ratio was one filing for every 47.1 persons; in 1963 one filing for every 46.2 persons; in 1964 one filing for every 44.1 persons; in 1965 one filing for every 43.2 persons and in 1966 one filing for every 43.2 persons.4 Based upon the experience of the last six years, the predicted new filings and backlog in the next 17 years will be astronomical. [See Chart No. 3] The supreme court, working at full capacity

Total Percentage* Criminal Indigent Increase- Year Appeals Appeals Decrease 1962 75 32 42% 1963 75 35 46 1964 101 49 48 1965 136 64 47 1966 164 79 48 1967** 203 121 59 * Percentage indigent of total appeals ** For 11 months, January 1 through November 30, 1967. 3 That social abrasions accompany overcrowding is a biological fact, according to Desmond Morris, author of The Naked Ape (McGraw-Hill, 1968). Discussing the characteristics of children, the author says on page 126: "Under crowded conditions the friendly social interactions between members of a group become reduced, and the destructive and aggressive patterns show a marked rise in frequency and intensity. This is significant when one remembers that in other animals fighting is used not only to sort out dominance disputes, but also to increase the spacing out of the members of a species." In the chapter on Fighting, the author says, page 177: "We already know that if our populations go on increasing at their present terrifying rate, uncontrollable aggressiveness will become dramatically increased. This has been proved conclusively with laboratory experiments. Gross over-crowding will produce social stresses and tensions that will shatter our community organizations long before it starves us to death." Another contemporary writer, 15-year-old Steven Levine, describes his childhood in an article in Esquire Magazine, March 1968, at page 107. He tells how he and his fellows formed groups in order to insure their identity in a crowded society. Here he describes the characteristics of the group: "Though we had power struggles as ruthless and violent as those of the Kremlin, the group was all important. Those who endangered it were expelled like lepers. Those who betrayed it to the two establishments, teen-age and adult, who ratted, were invariably ostracized and often physically attacked. Anyone outside the group was an enemy . . . Every group had two or three sub-peer-groups and a host of smaller changing alliances . . . We opposed each other with almost the vehemence reserved for the adult and teen-age world . . . We were alienated from the younger children by snobbery, each other by suspicion, and other older teen-agers by mutual fear. It was a difficult age. Like Sicilians, our only protection was a kind of Mafia." The author's reference to the Mafia indicates his realization that this kind of struggling and grappling is not confined to childhood. 4 Tenth Annual Report, Administrator for the Courts, State of Washington, (1966). GONZAGA LAW REVIEW [Vol. 3 and with the aid of pro tern judges, can dispose of an average of 650 cases per year. Recognizing that some remedial action was necessary to fight the backlog, the court and other interested groups sponsored a constitutional amendment which was passed by the voters in 1962' and implemented by the legislature in 1963.' It provided for the appointment and compensation of pro tempore judges to aid the court. It was hoped at that time that this procedure would relieve the backlog. However, in the four years since the program was instituted, the population has increased by 153,218. As a result of this and other factors, it has proved only a stop-gap remedy rather than a cure. Why is it that the use of pro tem judges does not solve the court's problems? First, it must be realized that the number of cases filed has been steadily increasing every year. In 1963, there were 546 cases filed; in 1964, 614 cases were filed; in 1965, 630 cases were filed; in 1966, 680 cases were filed; and in 1967, 706 cases were filed. Thus it is obvious that pro tem time is not spent entirely in reducing the backlog. There is also a limit to the amount of time which the court can sit with pro tem judges. Only one pro tern may sit with each department. When a pro tern sits, of course, a regular judge does not sit. Additional hearing days have been added. Experience has shown there is a maximum amount of time which any judge can spend in hearing cases and still have sufficient time to write opinions assigned to him and pass upon the opinions written by other judges. There is also a question of whether a judge who serves for only a short period of time will produce an opinion the quality of which will not be affected by his lack of experience on the court. Doubt engendered by such opinions has made it necessary for the court to

5 Article 4 was amended by adding the following section: Sec. 2(a) When necessary for the prompt and orderly administration of justice a majority of the Supreme Court is empowered to authorize judges or retired judges of courts of record of this state, to perform, temporarily, judicial duties in the Supreme Court, and to authorize any superior court judge to perform judicial duties in any superior court of this state. Amendment 38, approved November 1962. 0 WASH. REv. CODE 2.04.240 (1963) (1) Declaration of policy. Whenever necessary for the prompt and orderly administration of justice, as authorized and empowered by Article IV, Section 2(a), Amendment 38 of the state Constitution, a majority [under Rule 20, Rules Peculiar to the Business of the Supreme Court, unani- mous assent is required] of the supreme court may appoint any regularly elected and qualified judge of the superior court or any retired judge of a court of record in this state to serve as judge pro tempore of the supreme court. (2)Before entering upon his duties as judge pro tempore of the supreme court, the appointee shall take and subscribe an oath of office as provided for in Article IV, Section 28 of the state Constitution. Spring, 1968] CRISIS IN THE SUPREME COURT

CHART No. 3

rehear some pro tern opinions en banc, with the result that more of the court's time has been consumed and the rendering of the final decision has been delayed further. The addition of pro tern judges, while increasing the number of opinions which can be written, also increases the amount of time which regular judges must spend examining the opinions written by their colleagues. In this regard the court is already performing at the limit of its capacity. The point of diminishing returns has been reached. The addition of more pro tern judges would intensify this GONZAGA LAW REVIEW [Vol. 3

problem. This is not to suggest that the pro tern judges' program has failed. The pro tern judges have performed splendidly and the congestion would have been appreciably greater without their services. But the program has not been an adequate solution to the problem of the backlog.

Other procedures have been suggested as solutions. For example, in an article in 4 WASH. L. REV. 1, Possible Methods of Relieving the Supreme Court of the State of Washington, Mr. Alfred J. Schweppe, then dean of the law school at the University of Washington, suggested that the number of judges could be increased, and that the court could sit in several departments of five judges each, with a separate appellate division sitting in Olympia.

While supposedly this method would not require a constitutional revision, in effect it would amount to a reconstituting of the court as an intermediate appellate and a reviewing court, since under the proposal the judges who would sit en banc would not be the same judges who would sit in departments. It is considered doubtful that this arrangement could be utilized under the present constitutional provisions. It also lacks the advantage of the system proposed in SJR 6, in that the only function of the "en banc" section of the court would be to review decisions of the departments, whereas the supreme court, under SJR 6, would decide important cases in the first instance, without the wasted motion of a hearing and decision in the court of appeals.

The court and others interested in seeking a solution to its problems have given serious consideration to the possibility of increasing the number of departments. This would mean, of course, that each time the population increase and other factors resulted in an increased caseload which could not be handled, the court would have to be enlarged by adding five members. That is to say, it would be necessary to create a new department to hear cases, and the constitution requires that not less than five judges shall hear 7 a case. If there were three or more departments, it would be physically impossible for the chief justice to sit with each of them and still perform all of his other duties; thus the necessity of appointing five new judges to constitute a new department. I will not mention the administrative costs that would attend this system, inasmuch as they would probably be no greater than

7 WASH. CONST., art. 4, § 2. Spring, 1968] CRISIS IN THE SUPREME COURT

those which would accompany the establishment of a court of appeals. The principal problem would be in the area of maintaining uniformity in the law. Three or mote appellate departments would present greater opportunities for divergencies in holdings, and inasmuch as there would be no separate court available to review the departmental decisions, all of the judges would have to study all of the opinions written, and presumably all would have to sit en banc, since there is no constitutional provision which would authorize a lesser number to sit in that capacity. Assuming that a lesser number could sit, there would be the problem of deciding who should sit en banc in a particular case; and since different judges would perform this reviewing function at different times, another threat to consistency appears. In addition, the fact that each judge would have the responsibility of critically examining all opinions written means that the workload of each judge would be greater than it is now; conse- quently, it is reasonable to suppose that the number of opinions which each judge would have time to write would be correspondingly decreased. In contrast to this cumbersome state of affairs, the system proposed under SJR 6 would divide the responsibilities of the judges so that each judge in a division of the appellate court would be re- sponsible only for the decisions written in his division, and the members of the supreme court would all pass upon those decisions which were questioned on petition for certiorari, and, of course, those over which it exercised original jurisdiction. The fact that decisions of the appellate court would be subject to review by a single body of judges where a conflict or apparent error occurred, would be much more conducive to uniformity in the law. A system whereunder the membership of the court was increased by five members whenever the press of business required it might well result, before long, in justice administered by an "Achean assembly." That large courts are not considered efficient or desirable is evidenced by the fact that no state has a court composed of more than nine judges, and many have fewer than nine. Another suggestion made in Mr. Schweppe's article was that the legislature or the court, by rule, might remove the right of appeal in civil cases and substitute discretionary review by certiorari. Under this system, the court would function as the United States Supreme Court does in most cases, passing on petitions for writs of certiorari and granting or denying them as it sees fit. The writer of the article may have been correct in his conclusion that the constitution does not give an absolute right of appeal GONZAGA LAW REVIEW [Vol. 3 in civil cases,' however, for at least two reasons, it was the conclusion of those studying the problem that this approach should not be adopted by the court. In the first place, the court has construed the constitution as guaranteeing this right since its inception-that is to say, it has acted as though the right were guaranteed-and this interpretation has not been challenged by the people or by the legislature. In other words, no amendment limiting the right of appeal in civil cases has been proposed or enacted. We must assume, therefore, that this interpretation accords with the will of the people and therefore with the true intent of the constitution. It has also been the consensus, I believe, that while due process as it is judicially conceived does not require a right of appeal, such a right is a beneficent one and necessary in order to assure justice in as many cases as possible.

In 1964, the Law School of the University of Washington undertook a study for the court, wherein it examined all of the cases ap- pearing in the Washington Reports from 53 2d to 61 2d, with a view to making recommendations for the restriction of appeals by rule of court.9 It was found that of 904 appeals, 223 involved review of sufficiency of the evidence and 108 additional cases involved a review of facts. It was suggested that discretionary review of fact cases might cut the workload considerably. Other areas were also suggested in which discretionary review might be adequate. Following receipt of this report, the court undertook an experiment to ascertain what benefits might be derived from this method of review. It did not, of course, refuse any appeals but it made an examination of the cases which were ready for hearing and determined from this examination those which were frivolous, or of little merit. These cases were all set for hearing in one term, and the court engaged in a "crash" program to dispose of them. It was agreed that, if possible, each case would be disposed of by per curiam opinion. It found that, in some instances, cases which were thought frivolous from an examination of the briefs, proved to have real merit when the oral arguments were heard. Of course, this was partly because the briefs did not adequately present the problems

8 The theory is that the constitution guarantees a right of appeal in criminal cases (amendment 10) but only limits the jurisdiction of the court in civil cases. The court can only review civil cases in which the amount involved is $200 or more (with certain exceptions) but there is no express provision that it must hear appeals in such cases. Thus the theory is that the court could exercise its discretion in deciding whether to entertain appeals in civil cases. 9 This study was conducted under the direction of Dean George Neff Stevens, and Professors Robert Meisenholder and Philip A. Trautman. Spring, 1968] CRISIS IN THE SUPREME COURT

involved. It was also found that some judges were reluctant to write per curiam opinions. The conclusion reached after this experiment was that the advantage to be gained by screening cases in advance and eliminating those patently of little merit were outweighed by the disad- vantages-in short, that the saving, if any, in court time was not of sufficient importance to justify the risk of denying justice in a number of cases. Those studying the problems of the court concluded that justice requires that a litigant be given at least one right of appeal. The federal system gives this right. Although the United States Supreme Court exercises its discretion in reviewing cases, the litigant in district court is given the right to appeal to the circuit court. A study made in 1958 by Judge Matthew W. Hill of the State Supreme Court, showed reversals in 36.8 percent of 1,000 cases decided. While this may indicate that the court is being overfastidi- ous in its reviewing of cases, it also indicates that there is a con- siderable incidence of error in the trial court. This is not surprising when it is borne in mind that the trial courts also are operating under a very heavy caseload. The trial courts try approximately 7,000 cases a year. Many are difficult and complicated cases. It is inevitable that error should occur, and it is the function of the reviewing court, which is supposedly endowed with the necessary time, to ascertain the applicable rule of law and apply it where justice requires it. A fair trial can be guaranteed if at least one appeal is available to every litigant. The right of one appeal guards against the possibility of courts becoming arbitrary and capricious and discourages a personal brand of justice. The supreme court has not been alone in its concern about the backlog. The Superior Court Judges' Association and the Washington Judicial Conference, a body composed of all superior and supreme court judges and concerned with the improvement of the administration of justice, recognized the urgency of the problem of congestion in 1965 and began to search for a solution. They were joined by a special committee of the Washington State Bar Association and by the Legislative Council. Their purpose was to study all of the judicial articles of the 50 states, and determine, if they could, how Washington's judicial article should be modernized. After careful study, these groups found that the most pressing need was to alleviate the congestion in the supreme court. They recommended that the constitution be amended to provide for a court of appeals which would have jurisdiction over most appeals and whose decisions would be subject to review by the supreme court in certain instances. GONZAGA LAW REVIEW [ Vol. 3

In 1966, a Citizens' Conference on Washington Courts was organized to study the problem of judicial reform." One hundred forty leading citizens of the state attended this conference and as a result of it a consensus statement was prepared in which the conference recognized the need for immediate action for the establishment of a court of appeals. Out of this conference there was also formed a Citizens' Committee on Washington Courts1 which continues to function and which worked actively during the legislative session for the passage of SJR 6. This was the first time in the history of the state that a body of laymen actually influenced the legislature for the improvement of the judiciary. This is one of the most significant developments in the battle for the modernization of the courts. These concerned citizens bring a fresh and new viewpoint to the problems of the courts. They are

10 The American Judicature Society provided a service of inestimable value in furnishing personnel and the results of their research for use at this conference. 11 Board of Directors and Advisory Committee of the Citizens' Committee on Washington Courts: Norman Allen, Chairman, Special Consultant to the Vice President Industrial and Public Relations of the Boeing Company, Seattle; Mrs. Frederick Lemere, Vice Chairman, Board Member, Municipal League, Seattle; Mal- colm McBeath, Vice Chairman, McBeath Glass & Paint Co., Bellingham; John McClelland, Jr., Vice Chairman, Editor, Daily News, Longview; Mrs. Zelma Morrison Vice Chairman, Spokane Civic Leader; Wilfred R. Woods, Vice Chairman, Editor, Wenatchee Daily World, Wenatchee; Anthony I. Eyring, Treasurer, President, Washington Mutual Savings Bank, Seattle; Miss Maryan Reynolds, Secretary, Washington State Librarian, Olympia; Ken Billington, Public Relations, Executive Director, Washington Public Utility Districts Ass'n, Seattle; Walter Blade, Blade Chevrolet Co., Mount Vernon; Thomas C. Bostic, President, KIMA, Cascade Net- work, Yakima; Mrs. Ronnie Cannon, Mt. Baker Recreation Co., Bellingham; Henry Dahl, Vice President, Seattle-lst Nat'l Bank, Everett; Baker Ferguson, President, Baker-Boyer Nat'l Bank, Walla Walla; William Hulbert, Jr., PUD No. 1 Snohomish County, Everett; Rogan Jones, KGMI, Bellingham; Mrs. William V. Long, Civic Leader, Anacortes; Richard McCurdy, Port Townsend; Wayne McDaniels, President, Lewis County Savings & Loan, Chehalis; Lars Nelson, Master, Washington State Grange, Seattle; Mrs. Betty Parkany, American Ass'n of University Women, Tacoma; Irvine Rabel, President, Star Machinery Co., Seattle; Marcus S. Raichle, President, Aberdeen Fed'l Savings & Loan, Aberdeen; Walt Reese, Washington State Farm Bureau, Kennewick; Kenneth Rystrom, Editor, The Columbian, Vancouver; Ben H. Sefrit, Gen'l Manager, Bellingham Herald, Bellingham; Thomas C. Sias, Promotion Manager, American Plywood Ass'n, Tacoma; Harold J. Stadshaug, Title Guaranty Co., Moses Lake; James T. Sullivan, Secretary (Retired), Seattle Building Trades Council, Seattle; Mrs. Paul Suzuki, Seattle; Ned Thomas, Associate Publisher and Editor, Port Angeles Evening News, Port Angeles; W. L. Thrailkill, Vice President (Retired), Washington Water Power Co., Spokane; Jonathan B. Ward, Manager, Sales Administration, Hooker Chemical Corp., Tacoma; Mrs. Richard Young, League of Women Voters of Washington, Seattle; Jerry Zubrod, Manager, Washington Newspapers Publishers Ass'n, Seattle; Robert W. Graham, Bogle, Gates, Dobrin, Wakefield & Long, Seattle; Judge Robert M. Elston, Washing- ton State Magistrates Ass'n, Seattle; Judge Robert C. Finley, Chief Justice of Supreme Court, Olympia; Judge Frank D. James, Washington State Superior Court Judges Ass'n, Seattle; Dean Leo O'Brien, Gonzaga University School of Law, Spokane; Luvern V. Rieke, Executive Secretary, Judicial Council, Seattle; Lloyd W. Bever, Washington State Bar Ass'n, Seattle; Dean Lehan Tunks, University of Washington School of Law, Seattle. Spring, 1968] CRISIS IN THE SUPREME COURT not burdened by outmoded traditions which affect the operation of the courts. Their only interest is to achieve a system of justice that meets the needs of a dynamic and expanding society. It has been the lay citizens working in conjunction with the lawyers and judges who have achieved reform and modernization of the administration of justice. Their concern springs from the feeling that, as Daniel Webster said, justice is the great interest of man. The appellate court was supported, not only by this group of informed laymen, but, as previously said, by the Legislative Coun- cil, the Washington State Bar Association, the Superior Court Judges' Association, and the Washington Judicial Conference. The establishing of a court of appeals is also in harmony with the Ameri- can Bar Association Model Judicial Article. Thus it can be seen that SJR 6 was not a hastily contrived proposal for the solution of a complex problem, but was the product of serious and protracted deliberation on the part of those persons in the best position to know the nature of the problem and to anticipate the consequences, both good and bad, of any remedy effected. The resolution reads:

BE IT RESOLVED, BY THE SENATE AND HOUSE OF REP- RESENTATIVES OF THE STATE OF WASHINGTON IN LEG- ISLATIVE SESSION ASSEMBLED: THAT, At the next general election to be held in this state, there shall be submitted to the qualified electors of this state, for their approval and ratification, or rejection, a proposal to amend Article IV of the Constitution of the state of Washington by adding thereto a new section to read as follows: NEW SECTION. Article IV, section 29. COURT OF APPEALS (1) AUTHORIZATION. In addition to the courts authorized in section 1 of this article, judicial power is vested in a court of appeals, which shall be established by statute.

(2) JURISDICTION. The jurisdiction of the court of appeals shall be as provided by statute or by rules authorized by statute. (3) REVIEW OF SUPERIOR COURT. Superior court actions may be reviewed by the court of appeals or by the supreme court as provided by statute or by rule authorized by statute.

(4) JUDGES. The number, manner of election, compensation, terms of office, removal and retirement of judges of the court of appeals shall be as provided by statute.

(5) ADMINISTRATION AND PROCEDURE. The administration and procedures of the court of appeals shall be as provided by rules issued by the supreme court.

(6) CONFLICTS. The provisions of this section shall supersede any conflicting provisions in prior sections of this article. GONZAGA LAW REVIEW [Vol. 3

It will be seen that the proposed amendment would authorize the legislature to establish a court of appeals.' 2 The structure and jurisdiction of this court is to be determined by statute. This is a great advantage, in that it allows flexibility to meet changing conditions without the necessity of further constitutional amendments. The disadvantage of providing for the structure and jurisdiction of a court in the constitution is demonstrated by the situation which confronts the courts and the people of this state today in regard to the need for judicial reform. The difficulty lies in the amount of time which is required to effect an amendment. Urgently needed improvements and changes cannot be made quickly. The seriousness of the emergency confronting the courts was first generally recognized in 1965. Studies were made, discussions were held, and a consensus was reached in time to secure legislative action in the 1967 session. The resolution passed by the 1967 legislature will be submitted to the voters in November of this year. If it is approved, implementing legislation can be enacted in 1969. Thus four years will have passed before the needed changes can be made and this with the process moving as expeditiously as is possible. If the amendment fails, another four years will elapse before any other constitutional remedy may be effected. In the meantime, the problem of the backlog has not been alleviated but has grown progressively more serious. When provision is made for the establishment of the court of appeals, as it is hoped it will be, that provision will naturally be in accordance with the needs which are apparent when the legislation is enacted. After the new court has been in existence for awhile, it may become evident that a different structure or a different jurisdiction would be more efficient. The changes needed can be effected by the legislature in two years rather than in four, and valuable time will be saved. What are the advantages of a new court of appeals? In the first place, such a court would absorb a large part of the backlog, thus resulting in a faster and earlier termination of appeals. It is hoped that delay and congestion in the supreme court will never again be a problem. Under this system the litigation which accompanies the population explosion can be handled through adequate appellate procedures. Under it, the legislature has the authority, as it now has in creating new trial judgeships whenever needed, to increase the manpower of the appellate court.

12 This is not a new and untried method of alleviating the problem. Eighteen states now have intermediate appellate courts. See MARTINDALE-HUBBELL LAW DIREC- TORY, Vol. 5 (1968), 3475 et seq. Spring, 1968] CRISIS IN THE SUPREME COURT

This system would permit the supreme court to function in the manner prescribed in the constitution as contemplated by the fram- ers-as a court which has ultimate power to define and interpret the law, devoting its time to matters of orderly development, stability, and consistency in the law. If the court of appeals proves as effective as its supporters believe that it will, and as the experience in other states indicates that it will, it should then be possible to reduce the number of judges on the supreme court to seven. This can be done by attrition, that is, by eliminating two positions when they become vacant, and thus it would not be necessary to deprive any supreme court judge of his office. Also the use of pro tern judges could be confined to occasions when a regular judge is absent on account of illness or is disqualified. Not only will the litigant be given speedier justice, but, as experience has shown, expediting his case will result in financial savings for him. Judge Hill's 1961 study disclosed that the average time elapsing between the rendering of a judgment in the trial court and a decision in the supreme court (in the one hundred recent cases studied) was seventeen months. At least seven months of this delay is attributable to the mechanics of perfecting records for appeal. The problem of seven months' delay is not pertinent to this discussion, except that since many judgments bear interest at six percent per annum, it is expensive to the losing litigant. The additional delay due to congestion is even more expensive. In recent years we have had many money judgments in the amounts ranging between $50,000 and $200,000. Thus the delay may cost the litigant, in interest alone, from $4,500 to $24,000. How will the new appellate court be constituted? Under the constitutional amendment, the legislature is given unlimited power to create the appellate court as it sees fit. If it follows some other states, it will create a court that will sit in panels of three judges each, two of whom must agree on a decision. As many panels as are necessary may be established to meet the press of business. If the legislature were to be guided by the information in the chart [See Chart No. 4] showing where the appeals originate, there would be panels for Seattle, Spokane, and probably one or two other cities. The panels would be flexible in that a panel in an area where business is slack could be called upon to sit in another city where the caseload is heavy. Individual judges may be asked to sit as substitutes where a judge is ill or otherwise incapacitated. The panels would render written opinions and be courts of record. GONZAGA LAW REVIEW [ Vol. 3

CHART No. 4

Another question concerns the method of determining which appeals shall be heard first by the appellate court and which shall be heard in the supreme court in the first instance. In many jurisdictions having appellate courts, the procedure is to channel all appeals to intermediate courts except those which lie to the supreme court as a matter of right, such as appeals in cases involving a substantial constitutional question, revenue cases, capital cases, cases of first impression, and questions of great public concern. In Illinois, which follows this system, there is an appeal to the supreme court as a matter of right, upon certification by a division of that court from a decision of an appellate court, where a constitutional question arises for the first time in the appellate court, and where a division of the appellate court certifies that a case decided by it involves a question of such importance that it should be decided by the supreme court. Subject to rules, appeals to the supreme court from the appellate court in all other cases are by leave of the supreme court. It has been suggested, and it is my personal preference, that Spring, 1968] CRISIS IN THE SUPREME COURT

all appeals should be filed directly in the supreme court. The supreme court would examine them and refer to the appellate court all cases not involving capital punishment, constitutional questions, the interpretation of statutes not previously construed, revenue measures, and such other cases as the supreme court should determine are of sufficient public importance that a decision by that court should be had in the first instance. Under this procedure the court would exercise its discretion in a manner similar to its exercise of discretion in deciding whether to grant a writ of certiorari. I do not believe this would impose a substantial administrative burden on the supreme court. Our experience in 1964, in examining appeals filed to determine which should be dealt with by per curiam decision, showed that such examination could be effected with relative speed and efficiency by utilizing conference discussions by judges. Also the matter could be simplified by the adoption of a rule providing that each litigant outline by a letter or on the first page of his brief the reason he believes the supreme court has original jurisdiction. Those cases which the supreme court determined should be decided in the appellate court would be transferred to that court for determination. If the work were done properly and carefully, it would obviate the necessity of any further appeal. Decisions of the court of appeals would be reviewable by the supreme court on certiorari (that is, in the discretion of that court) and the court's discretion should be exercised according to certain formulated criteria. The philosophy should be one of restricting such review to cases where justice demands it. In other words, the rule should be that there is but one appeal, and a second appeal should be the exception, granted only in extraordinary cases. If the decisions of the court of appeals are final in most instances, not only is the problem of delay avoided, but respect for the court is enhanced. A fear has been expressed that the appellate court system would result in two appeals in a great number of cases. The experience in other jurisdictions having such courts does not show that such a fear is justified. In 1967 only five percent of cases appealed to the appellate court were eventually reviewed by the Illinois supreme court. A similar experience was had in a number of other jurisdictions-although some of them have reviewed as high as ten percent of the cases. It is our hope that, with proper procedures and rules, the number of cases reviewed could be held to three percent. But even if five percent of the cases were reviewed on a second appeal, it is unlikely that the delay from the time of decision in the trial court to the time of final decision by the supreme court would be as GONZAGA LAW REVIEW [ Vol. 3 great as the delay in all cases will be by 1985 (a delay of more than ten years) if the current predictions are accurate and if the appellate court system is not adopted. [See Chart No. 5] It is contemplated that whatever system the legislature finally adopts, the rules for appeal, whether to the appellate or supreme court, will be substantially the same, thus obviating the necessity of having two sets of rules on appeal with which to compli- cate the work of the practitioner. There are, of course, critics of the court of appeals as a solution to the problem of the backlog. They say, for example, that separation of the appellate function breeds confusion in the rules 13 and procedure, and makes uniformity of the law impossible. If the system of channeling all appeals first to the supreme court is adopted, there should be a minimum of confusion in the rules. Also, if the supreme court sits in review of conflicting decisions in the court of appeals, the law should be no less uniform than it is under the present system whereby the supreme court sits in departments and departmental conflicts are, ideally at least, brought before the court sitting en banc. Another objection to the idea of a court of appeals is that, where cases involve multiple issues, no clear-cut distinction can be made between those which should be heard by the appellate court and those which should be heard by the supreme court in the first instance. I do not see this as a great problem if the system I have advocated is adopted. A similar situation confronts the supreme court when it determines which cases should be heard originally en banc, and the fact that there may be issues of little importance in a case does not prevent its assignment en banc if there are issues involved which merit the attention of the full court. In short, these objections would have some validity if the statute or rule provided that an appeal should be taken in the first instance to one or the other court, depending on the type of issues involved. Then it would be the responsibility of the appellant in each case to decide which court would be likely to accept his appeal, and it is certainly conceivable that extensive litigation on questions of jurisdiction would follow. But if all appeals are directed to the supreme court, and the decision is made in that court whether to

13 This argument and other arguments pro and con can be found in an American Judicature Society Information Sheet published in August 1967, entitled Intermediate Appellate Courts, prepared and researched by Byron W. Daynes. See also Inter- mediate Appellate Courts, Institute of Judicial Administration, 40 Wash. Square South, New York, N.Y. (May 11, 1954); Comments on Proposal for Consolidation of Appellate Courts, 19 TENN. L. REV. 783 (Feb., 1947); Comment on Solutions for the Backlog of the Supreme Court of Colorado, 36 U. CoLo. L. REV. 545 (1964). Spring, 1968] CRISIS IN THE SUPREME COURT

CHART No. 5 retain jurisdiction or refer the case to the court of appeals, these complications should not arise. Furthermore, the likelihood of the supreme court's entertaining a second appeal is not as great if it has previously determined that the case is one which should be decided by the court of appeals. Another objection to the establishment of a court of appeals which is sometimes voiced is that it would be too expensive.1 4 In other words, the affluent society cannot afford a court system that will provide speedy justice. I find this argument hard to accept. In the first place, it has not been demonstrated, insofar as I can ascertain, that the expense is appreciably greater where there are courts of appeal, than it would be where more judgeships are created in the supreme court, which is the alternative solution suggested by these critics in many instances. There are those who will argue that the problems of congestion can be solved without setting up a new court-that efficiency alone is a sufficient answer. These critics suggest such devices as calendar reform, simplified procedures, pre-trials, the right to use judicial manpower where needed, court administrators (managers who relieve judges of all administrative duties in order that all their time

14 The per capita cost of all supreme court expenditures including indigent appeals totaled 19.34 cents for 1966. 1967 costs are not available. Court Administrator Report 1967. GONZAGA LAW REVIEW can be used in adjudicating) and the use of extended court sessions. These devices are commendable and lend themselves to efficiency and the expediting of cases, but they are not the answer to court congestion. The only answer is sufficient manpower to do the work. Court congestion exists where there are too few judges in relation to population. A study made by the court administrator shows that the ratio of one trial judge to 40,000 population will erase trial court delay and congestion. The Florida constitution provides for auto- matic creation of new judgeships in any judicial district where the population ratio is 50,000 to one judge.' 5 There is no court congestion or delay with such a practice. The caseload spawned by the population and law explosions cannot be handled by a supreme court which has the same manpower as the court had in 1909. To suggest such a possibility is akin to asking the University of Washington to teach the 27,000 student enrollment of today with the faculty of 1909. The resulting chaos can be imagined, yet this is what is asked of the Supreme Court of Washington. We must remember the administration of justice is a necessity and not a luxury. It is a necessity which a great nation can afford. The problem can be solved by providing sufficient judges based on a reasonable ratio of judges to population, as well as supporting a professionally staffed judicial administration system. It is my opinion, and also the opinion of those who have given a great deal of time and thought to the problem and who sponsored SJR 6, that the proposal for a new and flexible court of appeals presents the best device to solve the problem of the delay in the appellate process.

15 FLA. CONST. art. 5, § 6.