September 16, 2015

Unwritten opinions hard to erase at the Oregon Court of Appeals

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We all know what it means to be AWOL — absent without leave — from active duty. That’s perhaps the best way to explain that AWOL has a cousin in the Oregon Court of Appeals. It’s called an AWOP.

If you deal with the higher courts at all, you already know it — Oregon’s Court of Appeals has a high frequency of AWOPs, or decisions affirmed without opinion. It’s the fancy way of saying that more than half the cases reviewed by the state’s second-to-highest court end up unchanged, with no written explanation for why the court didn’t tinker with them. This is the only Court of Appeals in the country that produces such a significant amount of its opinions without a written decision.

The reason? The court’s top judge says there aren’t enough people to write them.

“We’re not happy about AWOPs. No one feels good about it,” said Rick Haselton, the chief judge for the Oregon Court of Appeals. He pegs the court’s current AWOP rate at about 65 percent of all business.

That’s a big number when you consider that the Oregon Court of Appeals decides all criminal and civil appeals from the state’s circuit courts. The main fare includes civil court matters, domestic disputes, and criminal and juvenile cases. The Court of Appeals also handles judicial reviews of administrative agency cases — in other words, direct appeals from the likes of Oregon’s Land Use Board of Appeals and the Workers’ Compensation Board. Per capita, it has been at times the busiest Court of Appeals in America. When it isn’t, it’s still pretty busy. The present-day caseload clocks in at about 2,600 cases a year.

How high is that? Consider it compared to the Oregon Supreme Court, which, with a little more than half the number of judges, hears a rough 120 cases a year, all at the judges’ discretion, save for ballot measure issues and death penalty cases.

The point? This is a transparency issue. And while it’s been flagged as such, again and again, mostly by lawyers but even by the court’s own judges, it ought to be a bigger deal to everybody.

An ideal appellate court case would look like the case of Bandon Pacific, a seafood company that recently appealed more than $200,000 in fines for four years of fish-gut dumping in the Coquille River. In August, the Court of Appeals kicked that one back to the lower courts, explaining in a nine-page opinion that the Department of Environmental Quality had failed to offer a complete explanation for the fine, and also failed to show DEQ weighed all available information.

That same day, the court issued 13 other opinions of this length, all available online, where they will live for at least some years to give Oregonians a sense of what their next-to-highest court is up to, and how those decisions are shaping state law. But on the same day, the Court of Appeals also issued 14 AWOPs.

Not even judges like that number.

“We’ve been conscious of it for a long, long time,” said Haselton. In fact, when he joined the Court of Appeals 22 years ago, reducing the rate of AWOPs was a goal. He told the governor as much in interviews. He told the Oregon State Bar, too. In the intervening years, there have been experiments. Former chief judge Mary Dietz tried a multiple choice form in the late 90s, he said, asking judges to pick from a handful of the most common reasons for AWOPs. For instance, you can’t argue a point that wasn’t brought up in the lower courts, something lawyers try to do all the time. Automatic AWOP. And there are cases where the legal principles are well established and there’s nothing new. That’s an AWOP, too. Sometimes, there’s just shoddy briefing — it’s not at all clear what’s being challenged. AWOP. But multiple choice proved quick but unhelpful — the information it yielded was barely an improvement on an AWOP. Right now one panel of Court of Appeals judges is trying to pick one would-be AWOP per docket and write it up — an effort Haselton predicts won’t make much of a dent in the problem.

As a conundrum, “it’s just really durable,” Haselton said. And the answer appears to be a matter of dollars and cents.

According to a 2010 study of the caseload at the Oregon Court of Appeals by the National Center for State Courts, high numbers of AWOPs were the result of both staffing shortage and an uptick in cases, and in their complexity. The study found that while caseloads increased and the law became more tangled, requiring longer opinions, the percentage of cases resolved with an AWOP increased. Staffing didn’t. The result was that AWOPs ranged from 66 to 84 percent, depending on case type. Aiming to reduce that to at least 50 percent, the NCSC predicted the court would need a total of 27 judges, plus an infusion of judicial assistants, staff attorneys and law clerks. That figure doesn’t include a temporary staff the NCSC recommended the court employ to resolve a backlog.

The court has had 10 judges since 1977. After a massive legislative push for better court resources, it got three more in 2014.

Attorneys say AWOPs mean judges in the lower courts lack direction and so do attorneys, particularly in family law, an area in which AWOPs abound. Rose Hubbard, a family law attorney, said the Court of Appeals and Supreme Court combined used to release about 30 or 40 family-law decisions a year. Now they combine for about five opinions a year. Haselton attributes the reluctance to rule on family law to the knowledge that, when the court is slammed, acting faster means less stress on children and families. Unfortunately, Hubbard said, it also means that children and families end up feeling, “like they do not have assurance that there are checks and balances on the trial court.” And the Court of Appeals also seems to be sending the message its judges would rather not hear family law cases at all.

There are some bright spots: Part of the reason why the court isn’t faster is that it doesn’t have a culture of bench memos — as in, an army of lawyer minions to digest the legal briefs. Instead, the judges read the briefs themselves. Also extremely unusual is that the court gives attorneys in any case the option to argue orally before the court if they want to. Many do. And here we have a kind of correction on the AWOP, if you will, because a lack of persuasiveness can be pretty clear to an attorney being grilled by a panel of judges. Haselton said the court tries not to AWOP anything that makes new law or affects people other than the ones in the room when the cases was argued.

With the new panel of judges appointed in 2014 chipping away at a court backlog that grew out of recession-induced staffing shortages, the rate of AWOPs has nevertheless remained unabated.[1]

Haselton now thinks AWOP abundance might be resolved with a new pool of staff attorneys to write opinions on cases that are affirmed, rather than a new set of judges. After all, not everything needs nine pages of analysis by a judge. After years of experiments in trying to provide even basic summaries to the public, the Court of Appeals appears to need at least some additional resources if there’s hope for transparency in cases that do require analysis.

What’s telling about this whole transparency issue? I couldn’t even find a non-lawyer to take on the pro-transparency side. And I think that’s concerning. Because lawyers, after all, are not supposed to be in court worrying over these issues because they matter to lawyers. They’re supposed to worry over these issues because they matter to everybody. Decision-making in our next-to-highest court need not be so opaque — it’s an important piece of a healthy, thriving democracy, a thing a little sunshine never hurt.

[1] Haselton rightly points out many other courts are scraping by with far less. The court does, after all, still have 13 judges, 12 of them assigned to 4 legal panels, each with two staff attorneys and a law clerk or two. Haselton, the court overseer, gets a couple staff attorneys and a law clerk, too.

One thought on “Unwritten opinions hard to erase at the Oregon Court of Appeals

  1. Hi Lee,

    Another great Redacted. You struck a still sensitive nerve with this topic. In the past decade or so, I’ve acted as a pro se lawyer and filed five or six appeals to this court [sic]. These were not “shoddy briefs” but well researched with cited authorities and supportive case law–and at least as professional as the reply briefs filed by opposing counsel; nevertheless, every case was AWOP–including those that addressed “issues of first impression” which as you know are challenges to laws which have not yet been tested. These should ALWAYS receive an opinion so as to clarify the laws we all must follow. “Haselton said the court tries not to AWOP anything that makes new law or affects people other than the ones in the room when the cases was argued.”

    My cases included a challenge to the entirely subjective violation of “Following Too Close” which makes it technically impossible to pass on a two lane highway since one must get somewhat close in order to safely pass a much slower vehicle. This violation is a fall back for cops running speed traps when there is no actual speed violation. I was cited after the guy in front of me slowed down when he saw the cop on the side of the freeway–putting me closer to him but not dangerously close–so that the proximity to the other vehicle was all that was needed to cite and convict, not the cause of the proximity, so that I was not intentionally following too close.

    Another challenge was to the statute addressing Improper Use of 911. I called 911 to ask for state police help as deputies were breaking into my home at night and without a warrant (as required by the SCOTUS). When the DA learned that they should have had a warrant and that there was no actual crime committed (I was accused of criminal trespass because my neighbor didn’t know where his property line was), I was instead charged with Improper Use of 911. Even though I had no prior criminal convictions, I was offered no plea agreement and forced to endure a full day jury trial by a special prosecutor who lied to the court to obtain a conviction. Clatsop County DA Marquis told the court that the trespass charge was being dropped because the “victim” had left the state–when there was no trespass at all! But despite that and the fact that the deputies were committing state and federal crimes by breaking into my house at night without a warrant–as well as the fact that there are thousands of non emergency calls to 911 each year which aren’t prosecuted, my appeal was AWOP. (I was hoping the court would rule that a single call to 911–with no malicious intent would not constitute a crime. Especially considering that, according to the language of the statute, reporting the finding of a dead body could be prosecuted as a crime since there would be no need for “an immediate response to prevent loss of human life or property.”)

    Of course, the court still collected the filing fees even though they don’t perform a service. Perhaps a reform to be considered would be to have cases reviewed by a diverse panel of attorneys and then, if accepted for appeal, they could be filed with the COA (after which the filing fee would be paid). My experience has left me extremely discouraged with the quality of justice in Oregon, and I would never file another appeal. I would also try to avoid the state courts in civil matters since I know there would be little hope in filing an appeal to a circuit court decision.

    Another factor which I feel obligated to mention is that the quality of the judges also does not inspire confidence. In 2009, I filed a Petition for a Writ of Mandamus asking the Supreme Court to force OSU to rescind an Exclusion Notice issued without cause and without due process. The DOJ attorney who represented OSU was none other than Erin Lagesen, who submitted outright lies as material facts–issues which could be disproven by readily available documents. My objections to her lies were ignored by the court and my petition was dismissed (so that I, an OSU alum, am effectively banned from campus for life), and Erin Lagesen the shameless liar is now a justice [sic] on the Court Of Appeals–which makes me wonder how she can make “just” decisions knowing that attorneys are free to flagrantly lie to the court as she did.

    I strongly encourage you to follow-up this story–and maybe you could dig a bit deeper to see if pro se cases receive a higher rate of AWOP–especially considering that my pro se issues of first impression were AWOP.

    Also, may I suggest that you post a link to the Advance Sheets that are issued every Wednesday so that people can see just how bad this problem is? (http://www.publications.ojd.state.or.us/Pages/OpinionsCOA2015.aspx)

    Your Fan,

    Dave