It’s no secret that the District of Columbia Court of Appeals, Washington’s highest local court, has a backlog problem. Chief Judge Eric Washington acknowledged it when he came up for reappointment last year, saying he had only “modest success” fulfilling a pledge to reduce the court’s inventory of undecided cases.
In 2009 alone, the judges ruled on more than a dozen cases that had been argued at least two years earlier. At least three of those cases had been sitting for more than three years since argument.
Delays of that magnitude can wreak havoc on civil cases. Witnesses drift off, business ventures stagnate and lives stall while the court sorts itself out.
Although the D.C. appeals court is up-front about the overall delay, it declines to discuss the performance of individual judges. To find out who are the fastest and slowest when it comes to producing opinions, The National Law Journal surveyed the past four years’ worth of opinions published on the court’s Web site, breaking them down by judge and then calculating the length of time between oral argument and decision. The review covered all 530 signed majority opinions that the court’s nine current active judges issued from Jan. 1, 2006, through Dec. 31, 2009.
The court’s internal operating procedures, adopted in 2007, suggest that all concurrences, dissents and revisions to majority opinions be completed within roughly 255 days. As a group, the judges came close to that standard, taking an average of 298 days from when a case was argued or fully submitted to the court until a written decision was issued.
Between the judges, however, there were vast differences. The slowest was Judge Vanessa Ruiz, whom the D.C. Commission on Judicial Disabilities and Tenure criticized this past summer for having the largest backlog on the court, even as the commission recommended that the White House appoint her for another 15-year term.
Ruiz averaged 564 days to issue each of the 69 opinions she completed during the survey’s four-year window. Her longest-delayed opinion, which mostly affirmed a lower court decision in a complicated criminal case over a shooting that killed one victim and injured four, took 1,339 days, or roughly three years and eight months. Although the wait time for the 24-page decision in Brown v. U.S., released in 2007, may have been stretched out by additional briefing after oral arguments, it was not an isolated example. Ruiz’s 2009 opinion in an appeal of a kidnapping conviction, Benn v. U.S., took 1,337 days.
Next slowest on the list was Judge Stephen Glickman, whose 70 signed opinions took an average of 366 days to produce. The quickest producer was Judge Phyllis Thompson, who completed 66 opinions in an average of 110 days each.
Judge Inez Smith Reid fell in the middle of the pack with an average of 246 days per opinion. Her longest delayed decision, like Ruiz’s, took 1,339 days to issue; the 2006 ruling in In re Estate of Francis Walker involved competing heirs to a deceased woman’s bank account. But Reid was still the court’s most prolific judge, issuing 85 opinions in four years.
As for the chief judge, Washington’s 44 opinions averaged 305 days apiece.
Washington declined to comment for this story, as did the other judges on the court. Court spokeswoman Leah Gurowitz issued a statement calling the length of time it takes to issue opinions a “potentially misleading measure of individual judicial performance.” She said judges cannot always control when their opinions are published. She also noted that, in his efforts to combat backlog, Washington has enforced a “first-in, first-out” policy, meaning a “disproportionate” number of older opinions have been released during the past four years.
“That policy change has had a greater impact on the judges who have served longer on the court than it has had on judges who have been appointed to the bench during Chief Judge Washington’s tenure,” Gurowitz wrote.
Signed published opinions are arguably the judges’ most important acts because they set the law. However, they also represent a fraction of the court’s activity. In 2008, the court managed 1,724 dispositions, including per curiam opinions, orders, and unpublished memorandum opinions and judgments. Current active judges wrote 128 signed opinions that year.
A 2007 study by the National Center for State Courts that included per curiam and signed opinions, as well as orders and memorandums, found that D.C. appeals judges were fairly prolific compared to jurists in the 10 other two-tiered state court systems. At 34 opinions per judge, they had the second-highest average, following only the Montana Supreme Court, which managed 50 per judge.
Efficiency in deciding cases is not simply a way to compare courts and judges; it has real-world consequences. Consider the now-empty Watergate Hotel. Monument Realty purchased the Washington landmark in 2004 and submitted a plan to convert it to high-end co-op apartments. After the plan was approved by the D.C. Zoning Commission, a group of residents in the neighboring Watergate East sued to stop the project. The challenge went directly to the D.C. Court of Appeals, where the judges heard the case two years later in February 2006. On July 24, 2008 — 883 days and one crashed real estate market later — Judge John Fisher wrote the majority opinion affirming the zoning commission’s decision.
For Fisher, who averaged just 228 days per opinion in the survey, it was an unusually slow performance. For Monument Realty, which eventually defaulted on its financing for the hotel, it was a disaster.
“The biggest problem with the hearing process, not only getting to the hearing but getting the decision afterwards, is you don’t know when it’s going to happen,” said Monument principal Michael Darby. “It completely destroyed the business plan that we had.”
Short of complete destruction, the time lag can leave a case severely frayed. Mindy Farber of Bethesda, Md.’s Farber Legal represented former bank clerk Juan Esteños in a national-origins discrimination case. Ruiz took 1,024 days to write an opinion allowing the suit to go to trial. Farber said that witnesses died or disappeared during the wait. One lawyer on the suit left the firm for a new venture. For a while, the firm even lost track of its plaintiff.
The suit presented an issue of first impression for the appeals court, but Farber still saw the wait as excessive. “As the years drag on, I think a lot of these people just think they’ve been forgotten…by the court,” she said.
Backlog in state-level appellate courts is not, of course, a new phenomenon. Fifty years ago, an article published in the Annals of the American Academy of Political and Social Science, titled “Delay in State Appellate Courts of Last Appeal,” offered an array of policy prescriptions for easing “today’s increased case-loads.”
But only lately have researchers begun the massive job of compiling comprehensive data on the problem at the state level. In a 2002 study, the National Center for State Courts looked at whether the supreme courts in five states met the American Bar Association’s suggested time frame for clearing cases — 290 days from filing to disposition for 50% of cases, and no longer than 365 days for 90% of cases. In instances where courts granted petitions to hear the case, the top state courts in Georgia, Minnesota and Virginia beat or came close to the ABA standard, while those in Florida and Ohio trailed well behind it.
By the ABA’s standard, Washington’s high court too is playing catch-up. According to its statistics, cases decided in 2008 spent an average of 544 days on appeal from filing to disposition. That was down from the year before, when the average hit 645 days.
The D.C. Court of Appeals suffers from one important handicap: It has no intermediate appeals court. In two-tier court systems, the top court can’t pick and choose its cases and must handle every appeal from trial, resulting in a larger workload. In his letter to the Judicial Nomination Commission, Washington noted that some state supreme courts handle dockets 15% to 20% the size of the District’s.
Rice University professor Paul Brace, who studies state courts, said that the District’s judicial system is set up more like those of small states even though it faces the legal demands of a demographically and economically diverse city. “They don’t have the resources that allow some of these [larger] states to dispense with a significant portion of their docket,” Brace said.
Systemic problems aside, the judges themselves do play a role, as the Commission on Judicial Disabilities and Tenure acknowledged in its report on Ruiz. The commission went so far as to say it would monitor the judge’s progress working through her backlog.
“The public’s confidence in the court is eroded,” the report said, “when litigants must wait multiple years for decisions to be rendered.”
Jordan Weissmann can be contacted at email@example.com.