There have been times when the First Department has had serious problems with excessive delays in the issuance of decisions.1 It may be a good time for the court to take affirmative steps to prevent the problem from recurring.

These delays have been caused by justices who failed, for months, to complete their assigned writing of an opinion or dissent. When even a few of our justices hold up decisions in this manner, the resulting backlog in the court's output can quickly become a systemic problem. Yet, the only procedure by which such delays are challenged is through informal conferences called by the presiding justice for each appeal remaining open for an excessive period, a procedure pioneered by then-Presiding Justice Jonathan Lippman. That approach has had success in the past,2 but in my view, it is not enough.

Rather than relying on pressure exerted by the presiding justice on tardy justices, we should adopt across-the-board time limits with which the justices are required to comply. In a 1992 Law Journal article discussing a court that was experiencing systemic delays in the issuance of decisions,3 the author, a retired judge who had spent time sitting on both Maryland's intermediate appellate court and on its highest court, observed that Maryland's Court of Appeals (its highest court) was taking too long to decide appeals, while the state's Court of Special Appeals worked more efficiently. In his view, the "judicial culture" at the Maryland Court of Appeals at that time "seem[ed] to be comfortable with the concept that the rate of opinion preparation is a matter to be left to each individual judge," while the judicial culture of Maryland's Court of Special Appeals encompassed a "strong collegial sense of the importance of moving the caseload," and a "commitment to filing opinions in a reasonable time while maintaining the highest appellate standards feasible." The author suggested that the "judicial culture" of a court could be altered by the will of the judges of that court.

In my experience, it does not take much for a court to become "comfortable with the concept that the rate of opinion preparation is a matter to be left to each individual judge." In the recent past, such a judicial culture has certainly contributed to periods in which the First Department had a large backlog of excessively delayed appeals.

Although we are not currently experiencing a crisis of excessive delays, experience tells us that as the bench and workload change, new backlog crises may emerge. Before that occurs, now would be a good time for the justices to consider adopting time standards within which writings ought to be prepared and circulated.

The imposition of absolute deadlines is more complicated in appellate courts than at the trial court level, where a decision is issued by a single judge. Arriving at a decision in a form that the entire bench will sign off on, or preparing competing writings from which the bench must choose, involves many more steps and will often take far longer.

Nevertheless, around the country, many appellate courts have time standards; some are informal, internally agreed-upon, some are set by court rule, some by statute, and a few by constitutional provision. For instance, Florida court rules covering appellate courts require a decision within 180 days of oral argument or submission.4

The Maryland Constitution provides: "[i]n every case an opinion, in writing, shall be filed within three months after the argument, or submission of the cause."5 New Mexico sets a definite six-month time limit for issuance of appellate court decisions.6 Alaska law requires that matters be decided within six months,7 and the California Constitution uses a 90-day limit.8 Of course, a three- or six-month overall time limit for appellate decisions necessitates a far shorter deadline for the initial and follow-up circulation of proposed writings.

Yet, of all the standards I have seen, only the ABA standards recognize the need to set separate time limits for multiple writings. The ABA's Standards for Appellate Courts require memorandum decisions to be prepared within 30 days of argument or submission, and signed opinions within 55 days, although cases of "extraordinary complexity" are given 90 days; dissents are to be filed within 30 days of receipt of the proposed opinion.9 The ABA standards may therefore serve as our most useful starting point for discussion. I would suggest that it is reasonable to require the initial circulation of signed writings, whether opinions or dissents, to take place within 60 days of argument or submission, unless it is an extraordinarily complex matter. In general, the preparation of a writing in the form of a memorandum decision should not need more than 30 days, initially. Responsive writings should be manageable within 30 days of receipt of the original writing.

Assuming we can agree on an appropriate set of time guidelines, we may also want to consider the possibility of adopting some enforcement mechanism. While many of the states that impose clear time limits have no enforcement mechanisms, and two contain provisions for a monetary sanction to be levied directly on judges who fail to comply,10 I suggest that the most appropriate mechanism to employ initially is a variant of the procedure imposed by New York's Rules of the Chief Judge §4.1(a).

Under that court rule, which is currently applied to the trial courts, judges are required to provide the chief administrator of the courts with reports "indicating the matters which have been pending undecided before such judge or justice for a period of 60 days after final submissions, and the reasons therefor."11 Interestingly, Florida has a similar rule, that requires reports to the chief justice of all pending cases exceeding the time standards, to be listed in a quarterly report.12 A similar reporting requirement in the New Mexico Rules of Appellate Procedure was eliminated in 2005.13

Finally, if the self-imposed pressures of a reporting system failed to improve a backlog, then resort could be had to an option of giving the presiding justice the authority to reassign appeals outright, if the assigned judge failed to produce a timely writing. Imposing these time limits and reporting requirements would ensure that our justices are answerable for their delays, and might even prompt speedier issuance of writings, thereby helping prevent excessive delays in issuance of appellate decisions in the future.

David B. Saxe is an associate justice at the Appellate Division, First Department.

Endnotes:

1. Wise, "First Department Sharply Cuts Decision Delays and Backlog," NYLJ, Sept. 25, 2008; Wise, "'Significant' Efficiency Gains Slash Appellate Term Backlog," NYLJ, Oct. 17, 2006 at 1, col 3; Wise, "Buckley Staying in Post, Stalling McGuire's Progress," NYLJ, Sept. 27, 2006 at 1 col 3.

2. Wise, "First Department Sharply Cuts Decision Delays and Backlog," NYLJ, 9/25/08.

3. See Adkins, Essay: Could He Go Faster Than He Could Go? Ruminations on the Time Lapse From Oral Argument to Opinion Filing in the Court of Appeals of Maryland, 51 Md L Rev 205, 214-216 [1992].

4. Fla R Jud Admin 2.250[a][2].

5. Md Const art. IV, §15.

6. New Mexico Rules of Appellate Procedure 12-406.

7. Alaska Stat §22.05.140[b].

8. Cal Const art VI §19.

9. ABA Standards for Appellate Courts §3.55 [1994].

10. Alaska law provides for holding the salary of a justice who has any matters undecided for more than six months (see Alaska Stat §22.05.140(b)[1990]). The California Constitution provides that "A judge of a court of record may not receive the salary for the judicial office held by the judge while any cause before the judge remains pending and undetermined for 90 days after it has been submitted for decision" (see Cal Const art VI §19), although according to Administrative Presiding Justice Carl West Anderson in 1992, the California appeals courts have gotten around this punitive measure by a practice known as "front-loading" by which the opinion is drafted, conferenced and tentatively voted upon prior to oral argument (see Anderson, Are the American Bar Association's Time Standards Relevant for California's Courts of Appeal?, 27 USF L Rev 301, 342 [1992-1993]).

11. Rules of the Chief Judge [22 NYCRR] §4.1 [the rule also imposes a time limit of 30 days for pendente lite support motions].

12. Fla R Jud Admin 2.250[b].

13. See Committee Commentary to N.M. Rules of Appellate Procedure 12-406.