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CRISIS in the SUPREME COURT Hugh J. Rosellini*

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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 cer- tain 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 neces- sity. 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 num- ber 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 juris- diction 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 in- creased 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 ex- pansion 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.
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