The Utah Court of Appeals – Twenty Years Later
by Judge Gregory K. Orme
In his book, An Unfinished Life – John F. Kennedy, author Robert Dallek quotes Kennedy as saying he felt like he had always been president. I thought that was odd. After all, Kennedy was president for just under three years. Reading this passage, however, did prompt me to muse that I feel like I have always been a Court of Appeals judge. Really. And if I may say so, this seems inherently less incredible. After all, I have been a Court of Appeals judge about seven times longer than Kennedy was president. I have been an appellate judge twice as long as I was a practicing attorney. I have been on the court for two-thirds of my adult life. At the first out-of-state judicial conference I went to, somebody asked me if I was there with my dad; at the last one I went to, somebody asked me when I plan to retire. So I guess I shouldn’t be surprised – much less shocked – to remember that this year marks the twenty-year anniversary of the Utah Court of Appeals.
Three other original appointees to the Court – Russ Bench, Judy Billings, and Pam Greenwood – also continue to serve on the court. Each of us has contributed a personal “side bar” in the pages that follow. Only Chief Justice Durham and a handful of other Utah judges have more seniority than we do. In contrast, consider the turnover in the position first occupied by our former colleague Dick Davidson. He was replaced by Leonard Russon, who left us to join the Supreme Court and has since retired; and Russon was replaced by Mike Wilkins, who left us to join the Supreme Court; and Wilkins was replaced by Bill Thorne, who, given this history, probably wishes that Wilkins was older. The two other original appointees, Reg Garff and Norm Jackson, retired in 1993 and 2005, respectively, and were replaced by our colleagues Jim Davis and Carolyn McHugh.
We do our work pretty much in the same way we did twenty years ago. We read briefs and hear arguments and “conference” on the cases (often after hearing arguments) and write opinions. But there have been a lot of changes, too.
We started our institutional existence in the Midtown Plaza, 230 South 500 East. There wasn’t room for us in a real courthouse. It was a brand new office building, and the owner simply finished the space per our specifications, with a courtroom and library to go along with offices for the judges and staff. There was an aerobics studio and optical shop on the first floor, and a dentist on the fifth floor. Dunn & Dunn was across the lobby from us on the fourth floor. The Administrative Office of the Courts was on the third floor. Security was basically some “dummy” surveillance cameras, the last one out remembering to lock the door, and a “No Soliciting” sign on the front door. Still, kids selling candy bars and “college students” selling magazine subscriptions would occasionally turn up in my office unannounced – having scooted past the receptionist when she had her back turned. On Tuesdays, I think it was, “the Bagel Lady” would turn up. She was not regarded as an intruder but rather as a most welcome visitor. She carried a Goldilocks-like basket brimming with bagels and brownies and donuts and such, which she sold at reasonable prices. And if you didn’t have any cash, you could just pay her next time. It was a sad day when she suddenly quit coming – some rigamarole over a business license and food handler’s permit, we were told – and I still owe her $1.50, if anybody knows how to get a hold of her.
Now we’re in the Matheson Courthouse with lots of other court people. Solicitors couldn’t possibly get past the deputies that secure our entrances; the Bagel Lady has been replaced with lots of vending machines and The Courthouse Café; and I have to drive to the dentist and the optical shop.
We used to just have one law clerk each; now we have two. We used to have two central staff attorneys; now we have four. I used to have this great law library with tons of books just outside my door, but now I have the State Law Library a short elevator ride away and my clerks mostly use their computers for research anyway. (A few years ago, my clerks wondered if they could go home because the computers were “down” so they weren’t able to do anything, they said. We took a field trip to the library and learned all about digests and ALR and Shepard’s and pocket parts and treatises and the like. The whole time, they had these looks on their faces like I had proposed starting a campfire with two rocks and some dry leaves.) I used to have a typewriter at the side of my desk; now I have a laptop. Seven judges used to share a printer, which sounded like an old dishwasher as it printed line by line, and now we each have our own printer – quiet gizmos that spit out 30 pages in the time it takes me to get up from my desk and walk the twenty feet from my desk to my printer. I still have my same robe, but the taxpayers were kind enough to have it refurbished this past summer.
The one constant in the twenty-year history of the court has been an obsession with delay reduction and avoidance. Some of my colleagues may prefer I couch this in terms of a mission or goal, but that understates it. It has been an obsession – an understandable obsession, given our origins, but an obsession nonetheless.
The genesis of the Court of Appeals was interminable delay in civil cases pending before the Supreme Court. A single appellate court had served Utah since before statehood, but by the ‘80s, if not earlier, a single state appellate court was no longer feasible. It was not uncommon for five years or more to pass between the filing of a notice of appeal in a civil case and receipt of an opinion from the Utah Supreme Court. The resulting inefficiency compounded itself, as the justices had to read the briefs and otherwise prepare twice in every case – once for oral argument and again several years later, having long since forgotten the case, when an opinion was finally circulated. So along came the Utah Court of Appeals, as the centerpiece – along with creation of the Utah Judicial Council as we now know it – of a comprehensive revision of the judicial article (Article VIII) of the Utah Constitution. See generally William C. Vickrey & Timothy M. Shea, House Bill 100 and the Utah Court of Appeals: A Blueprint for Judicial Reform, Utah Bar Journal (Fall-Winter 1985).
When we took office, the Supreme Court’s entire backlog of unargued civil cases was loaded into Geoff Butler’s pickup truck and delivered to us. It was several hundred cases. Plus we had an immediate and constant stream of new appellate filings in cases within our original jurisdiction: most criminal cases, all family law cases, all appeals from Circuit Court (remember the Circuit Court?), and appeals from all but a few of the administrative agencies. We knew it would be a challenge to dig out from the backlog, and we knew we didn’t want success in that regard to be a one-time deal, only then to lapse into a slow slide of increasing delay. So from the get-go we institutionalized measures with that object in mind, and we have constantly sought to devise additional such measures. (As a result, although earlier projections called for us to be up to about 10 judges by now, we’re still at seven, and will remain so for the foreseeable future.) In the remaining pages of this article, I want to concentrate on this defining aspect of the court’s history.
We started out with an ambitious, ultimately unsustainable, pace of hearing cases. For the first several months, although it meant lots of weekend and evening work, we heard and wrote cases at a rate that had most of us reading briefs and hearing arguments in 18 cases a month and writing opinions in six of those. These weren’t easy slam dunk cases, mind you; these were all but exclusively cases newly moved from the Supreme Court’s backlog. That pace could not be sustained for long without burning ourselves and our law clerks out, but we stuck with it long enough to put a real dent in the backlog in a very short time.
From the very beginning, we enshrined our expectations in internal operating procedures that we have rather strictly adhered to. Bi-weekly (now monthly) reports show us who’s responsible for which cases, how long they’ve been pending, who has any action outstanding, etc. Nothing gets lost in the shuffle, and judges are regularly reminded of any older cases under advisement needing immediate attention. Judges are expected to circulate proposed opinions within 90 days (while some occasionally take longer, our collective average is well below 90 days), and to act on proposed opinions within a week. Separate opinions, like dissents, don’t circulate in the by-and-by, but are due within a month of when the principal opinion first circulated. We have managed to keep the average time between notice of appeal and issuance of opinion to just over the one-year mark called for in ABA standards. Much of that time is somewhat beyond our control, but we have encouraged the accountability of other key players in the system and helped keep such potential sources of delay under check by being rather parsimonious in considering extension requests, whether from attorneys or court reporters.
It didn’t take us long to realize that not every case really needs the “Cadillac” treatment – full briefing, oral argument, and an elaborate written opinion. Some cases just are, well, Fords and Volkswagens. That’s not to say they aren’t important cases that merit attention; only that the level of attention needed to decide some cases appropriately may be less than in some other cases. We have constantly been about the business of developing and refining a rather wide range of these alternatives. We have tried to resolve cases early and summarily, under Utah R. App. P. 10, when it is clear there is no jurisdiction or no substantial question for review or when the case is moot. This is often done in the context of inviting the submission of short memos rather than briefs to aid our decision. Even cases that are fully briefed can sometimes be appropriately decided without an in-depth judge-authored decision. The use of “per curiam” opinions, reviewed by three judges but with the research and drafting done by one of our central staff attorneys, has always been a significant part of our total output.
Saving judicial time on the back end rather than the front end, i.e., hearing arguments but then disposing of the case almost immediately with a one-sentence order, proved singularly unpopular with the Bar, and that practice has been essentially abandoned. The idea was that the dialogue at oral argument would serve as an adequate vehicle for imparting the court’s view of the case, but practitioners didn’t like it. I think it may have been as simple as this: Even if the comments at oral argument fully informed counsel of the rationale for the one-line order, typically an affirmance, there was nothing to mail the client that contained the court’s analysis. In retrospect, I can fully sympathize with an aversion to having to send a letter to client, enclosing a one-line order, in which counsel has to set out her best guess about what the court was thinking. Thus, although the practice once did help us concentrate our writing energies on the Cadillacs we inherited from the Supreme Court, we no longer make use of Utah R. App. P. 31 and 30(d).
We have, over the last few years, institutionalized the frequent use of memorandum decisions, usually in cases that have not been scheduled for oral argument and which usually are not designated for official publication. Unlike per curiam opinions, these are decisions for which an authoring judge is responsible, with the research and drafting assistance of a law clerk rather than a staff attorney, and which are considered by a panel of three judges as part of our regular calendar. There is admittedly variety among the judges, but I tell my clerks we are writing memorandum decisions for the parties, their attorneys, and the trial judge – not for posterity – so it doesn’t matter if a stranger to the case couldn’t figure out what was going on, so long as our small target audience understood completely. Accordingly, issues might be referred to in a shorthand way, the facts are not set out in any detail, and the analysis is truncated. Regular use of memorandum decisions is probably the single most important reason we have not had to add judges.
Adding appellate judges is expensive. Each comes with a robe and two law clerks, and all three need a package of benefits appropriate to the position, furniture, computers, law books, telephone, secretarial support, etc. etc. If in lieu of adding a judge, other staff can be added to help increase output, the taxpayers are better off. (And so is the court. By all accounts, a smaller court is a more collegial court.) With this in mind, over the years we have added law-trained staff instead of judges whenever the opportunity has arisen. Thus, fairly early on in the court’s history, we went from one law clerk per judge to two. We have gone from two central staff attorneys to first three and then four. We even tried an experiment in adding a judge “on the cheap.” For a couple of early years when we were in the throes of that initial inherited backlog, we utilized a rotation of senior judges to help us hear – and, after adding a temporary law clerk assigned exclusively to them, to write – opinions in fully briefed cases scheduled for argument.
Working with judges like Dean Conder, Robert Newey, and Bob Bullock was a pleasure, but the need to rotate judges who were retired and mostly wanted to keep it that way was inefficient. As soon as one had his sea legs, he was replaced by the next volunteer.
Another experiment proved much more successful. A few years ago, we opened the Appellate Mediation Office, annexed to the Court of Appeals. Staffed by a lawyer paid less than a judge, with the assistance of one secretary rather than two law clerks, the mediator accounts for as many resolutions in the average year as does the average judge. As importantly, the parties in those successfully mediated cases leave the system much happier, typically spared the expense of briefing and with both sides feeling that they won, or at least didn’t lose.
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As an exercise in backlog elimination and appellate delay reduction, the Utah Court of Appeals has been an unqualified success. We like to think we have also made a contribution in other ways, perhaps most importantly in making a significant contribution to the development of the common law of Utah in areas which had been unintentionally, but necessarily, somewhat neglected by the Utah Supreme Court as it tried to do everything by itself. But we know why the Court of Appeals was created, what our core mission was. And as to that mission, those who had the foresight to establish the court, those who have worked here over the years in one capacity or another, and the practitioners who help us figure out how best to resolve each case are able to join me in saying: “Mission accomplished!”