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The Illinois Appellate Court The wheels of justice grind exceeding slow

By JANEEN BURKHOLDER

It takes an average of 649 days to get a case through the First District Appellate Court, plus another 113 days between announcing the court decision and issuing orders. What is the reason for this sluggishness? The National Center for State Courts cites an increasing case load and poor organization and administration.

THE NUMBER of cases filed in the Illinois Appellate Court has almost quintupled since 1964 when 1,211 cases were filed with the new state appellate court; in 1979 an astounding 5,641 new filings were made. The problem is reaching the critical level. The appellate backlog and delay is no longer spoken of in terms of days, but rather in months and years, according to the National Center for State Courts.

The state appellate court rarely finds itself the attention of the media or law journals. Perhaps the reason is that the appellate court is usually the "middle court." The news was made by the circuit court when a case was originally decided and, if it is a controversial decision, the state Supreme Court will usually make the final ruling.

The appellate court does find itself in the middle of the court system's problem of adjudicating cases within a reasonable time period. It does have a large caseload, partly because it is the court of first review for appeals from the circuit courts, and it is sometimes the court of last resort for others, since the Supreme Court is not mandated to hear all cases.

The problem of delay in the court system is ultimately a problem of "justice." Illinois Supreme Court Justice Walter V. Schaefer has said, "It's important not only that justice be done, but that justice be seen to be done." Whether applied to trials in the circuit court or review in the appellate court, the appearance of justice being done includes the element of time.

Is justice being served well in the appellate court? With its huge backlog and endless delay, the appellate court has trouble giving the appearance of serving justice, because often for the litigants involved, justice equals speed.

At the same time, recent trends show a tendency toward encouraging litigants to appeal. The Illinois Appellate Court is now hearing cases that previously went directly to the Supreme Court as well as cases from new areas of jurisdiction on administrative actions, such as appeals from the Illinois Environmental Protection Agency. There also is a great increase in the appeals cases from the traditional areas of appellate jurisdiction.

Much of the increase in new cases filed each year may be attributed to specific substantive developments now making the judiciary more amenable to certain kinds of claims, such as civil rights. Part of the increase may also be attributed to a corresponding increase in the availability of legal services to those convicted of crimes.

There is an increasing trend toward litigation as a means of resolving disputes, and the end result has been not only an increase in the number of new cases filed, but also an increase in the complexity of those cases. The workload is understated by the mere number of cases filed.

Litigation explosion

Fourth District Appellate Judge James C. Craven has said he is not overly concerned about this ' 'litigation explosion" because it indicates that the courts are doing their jobs well. "I think it is a compliment to the court system that now [people] think they'll get a fair shake." He called the influx of new cases "healthy" but he admitted, "the unhealthy thing is that we're getting snowed."

It is not surprising that a district the size and population of Cook County would have a poor track record; the backlog and the length of time before disposition of cases continues to increase. Compared to downstate districts, the first district is slower in disposing cases and has a higher rate of Supreme Court reversal. But while other districts are somewhat more speedy, the problems of Cook County may indicate the problems that will develop downstate.

A study begun in 1978 and released in 1980 by the National Center for State Courts examined the Illinois First District Appellate Court and 10 other states' appellate courts. Using this study, the center will offer technical assistance to states in an effort to reduce delays in state appellate courts across the nation.

The center isolated two main causes of delay: (1) The appellate courts "simply do not have the personnel or resources to keep up with increasing case volumes," and (2) the courts are "poorly organized and inadequately administered."

On the specific study of the Illinois first district in Cook County, the report stated, "The first district could not effectively meet the demands imposed, by a relatively modest case volume." The report showed that total case processing time averaged 649 days, a length greater than any of the other 10 courts examined under the center's time lapse study. Also, the number of filings per judge in the first district was lower than those of most judges in the other 10 courts studied.

It was found that the biggest delay occurs at the pre-decision stage and with transcript preparation. However, the number of cases ready to be heard exceeded the number of cases the court was able to hear. Thus there appear to be a reluctance on the part of the court to strictly enforce the time limits specified in its own rules. And if those waiting to be heard do not believe the court will meet its own schedule, the circle gets vicious. The report states, "Attorneys, court reporters, and trial court clerks might be reluctant to prepare and file promptly necessary materials due to their perception that the case would not be heard immediately." If the papers are not filed on time because of scheduling procedures, this in turn causes even more scheduling difficulties.

The study found that an average of 3.53 time extensions were requested per appeal in the first district, and that rate was substantially higher than in the 10 other states studied.

16/March 1981/Illinois Issues


The center also found that cases ready for oral argument are not being heard immediately, but instead are added to the backlog. To further compound the delay, the time lapse between announcing the decision of the court and issuing orders is an average of 113 days.

In addition to case scheduling and assignment problems, the center's study also cited judges' work habits as contributing to a "general climate of uncertainty concerning when cases will betaken under submission."

The Chicago Council of Lawyer's publication, Chicago Lawyer, reports that the first district is not well served by the system of electing judges. Several judges have served as ward and township committeemen, precinct captains, aldermen or party officials, indicating that politics has more to do with judgeships than "high quality in legal knowledge, experience, judicial temperament, political independence and character."

Case scheduling, assignment problems and judges' work habits have all been cited as contributing to the delay

Judge Craven said, "The problem isn't the productivity of judges. If we assume that 500 cases are filed, you have 500 cases to decide, and you do them under this time schedule without reference to how many. If two cases are filed, you do them under the same schedule. So you do as much as there is to be done." Craven does concede, however, that judges can be criticized for their often old and sometimes slow ways.

In an effort to reduce the time in disposition, one unfortunate response is to rely more heavily on written arguments than oral arguments. This trend is indicated by the foreshortening of time allowed to attorneys. Whereas the courts previously allowed as much as an hour to both sides for oral argument, the norm now is to allow only 45 minutes, and sometimes as little as 20 minutes.

This response is regrettable, because oral argument serves to enhance the quality of the decision, and even speeds the judges' ability to assimilate ideas. However the hearing procedure is a bottleneck, and courts often invite waiver of oral arguments when written briefs will suffice and oral argument may be redundant.

Good, bad shortcuts

Judges also may shorten the conference time to speed cases if the judges have sufficiently discussed the case during argument and substantially agree. And judges may issue "memorandum decisions" rather than write lengthy opinions if a decision does no more than affirm a sentence in a criminal case or if no new rule of law is being articulated.

While memorandum decisions have allowed more cases to be decided each year, fewer written opinions are being produced in proportion to the growing number of cases filed each year. Supreme Court Judge Robert Underwood said in 1973: "Some Appellate Court judges are not producing as many opinions as they could. It is the opinion of the Supreme Court that each judge of the Appellate Court could produce a minimum of 60 opinions per year." The average number of opinions per judge is nearing that figure annually, but again not as fast as the rates of new cases filed.

Some court watchers believe that increased case volume is the primary cause of delay. They argue that solutions should emphasize devices to reduce the workload and include such suggestions as increasing the number of judges and other personnel to assist the court; establishing separate appellate courts for criminal and civil cases; increasing court control of caseload by implementing selective review; reducing the length of opinions and briefs; and issuing memorandum opinions and oral decisions instead of written opinions.

March 1981/Illinois Issues/17

Others believe that the delay is the result of poor court administration and believe courts should concentrate on such efforts as employing central staff review procedures; developing computerized record keeping systems; developing screening systems and alternate dockets for separating error-correcting cases from cases dealing with fundamental legal questions; and implementng systems of centralized court administration.

Clearly there is no single answer to the growing number of cases being filed annually, but the National Center for State Courts has developed several suggestions for improving procedures. The center recommends assigning cases according to backlog, specifying time limits for written opinions, developing reassignment procedures and sanctions for delinquent cases, and eliminating scheduling policies that limit the number of cases heard.

The center's comparison of state appellate courts indicated courts with "formal control of the appellate caseload at all phases of the appellate process exhibited substantially faster case processing time averages than courts which did not have formal control." The center has urged adoption of scheduling policies which do not artificially limit the number of oral arguments heard monthly, implementation of rules specifying when materials under the control of attorneys, court clerks and reporters must be filed, and specification of the length of time between oral argument and submission of written opinion.

The Illinois Appellate Court does not currently have an effective system for tracking cases, and that deficiency makes periodic evaluations difficult. The center recommends keeping careful records of dates to help identify cases long overdue and to allow for a more systematic study of the appellate court's sluggish nature.

"The problem isn't trying to figure out what to get out of the court system, the problem is to try to figure out how to handle what's in it," Judge Craven said. "I don't worry about the volume. The court system can handle the volume. It's a question of having the resources, the physical facilities to handle it."

Janeen Burkholder is the Public Affairs Reporting intern for United Press International in the Statehouse during the 1981 legislative session. She has been a reporter for each of the newspapers in DeWitt County.

March 1981/Illinois Issues/18


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