Editorial Advisory Board: Md. high court decisions too long in coming

Like the mills of the gods, the wheels of justice at Maryland’s highest court grind “exceeding slow.” In many instances, too slow for justice.

Legal Affairs Writer Steve Lash of this paper reported last week that the average period of time between oral argument and decision has risen dramatically over the past two years, from 105 days in fiscal 2008 to a whopping 178 days in 2010, the last year for which statistics are available. This, despite a state constitutional provision saying that the Court of Appeals “shall” file an opinion in every case within 90 days of argument.

More than a century ago, the Court itself applied a more flexible interpretation of “shall” than it would decades later when that word appeared in certain statutes and Court Rules. Still, the framers of the Maryland Constitution must have had some idea that three months was a reasonable period of time for the state’s highest judicial body to decide a case, one to which judges should adhere.

Admittedly, the problem is not a new one. Our history has a few shameful examples of cases languishing in Annapolis for a decade between argument and decision.

Maryland’s Court of Appeals may actually be more punctual in rendering decisions than many other courts of last resort in the country. According to a nationwide 2007 sampling of civil cases by the National Center for State Courts, the median time between argument and decision was 203 days. This study, if it fairly represents what’s happening across the country, shows that the problem of a ponderous appellate system is not Maryland’s alone and indeed that the delays in Maryland are not as bad as the delays in most of the other state appellate courts of last resort. That other high state courts are even less attentive to the obligation to render justice in a timely fashion, however, does not relieve the Maryland Court of Appeals of its responsibilities.

Are issues before our high court really so complex that litigants must wait nearly six months on average, and in some cases several years, for decisions in their cases to emerge from the Maryland Court of Appeals?

For one thing, many issues have been clearly identified and arguments developed and briefed by the time the judges hear opposing lawyers make their final, oral pleas for their positions. That the Court agreed to exercise its discretion to consider the case required some familiarity with the issues. In other words, substantial groundwork is done before oral argument and even before merit briefs have been submitted, giving judges a head start on the sophisticated legal crafting that lies ahead.

Then, immediately after a day of oral argument, the Court of Appeals judges retire to their conference room, where they vote on what the result should be and which judges should write which opinions. What’s left is applying the law along the lines tentatively agreed to by those judges who have already declared their positions.

Is the court’s workload too heavy for the judges to get their opinions written within a range of time that is not radically longer than the three-month window set out in Maryland’s Constitution? Hardly. First, most of the sitting Court of Appeals judges produce their opinions in five months or less. Secondly, for the most part the Court of Appeals chooses only the cases it wants to hear, so unlike lower courts it has control over the size of its docket. Indeed, in many cases, the Court of Appeals sifts through briefs filed in the Court of Special Appeals in search of additional cases that it might want to take over before the intermediate court decides them.

What’s to be done? According to Lash’s report, only two sitting judges and two retired judges are taking more than five months to issue their opinions. Perhaps the court should consider reducing their workload and giving them fewer assignments until their timeliness comes more into conformity with our state’s constitutional directive.

Secondly, perhaps there are other capable retired jurists whom the Court could call on to assist in the workload. Thirdly, the Court should make prompt decisions a priority and should aspire to an average three-month, and certainly no more than an average four-month, turnaround time.

Finally, the value of public scrutiny should not be underestimated. Federal courts also have their laggards, but their number has diminished dramatically since the Administrative Office has kept statistics on court delays. Federal trial judges want a clean docket, a development largely driven by peer pressure, i.e., other federal judges who see the statistics as they are released. The article by Mr. Lash is a first step. We urge this newspaper and other news outlets to periodically publish statistics by cases pending and cases decided.

The public’s faith in our legal system is not enhanced when cases linger in Annapolis for months, even years, after all issues have been presented to the body charged with making decisions that affect us all.

Editorial Advisory Board members Laurel Albin, Dawna Cobb, Neil Duke, Frederic Smalkin and Donna Hill Staton did not participate in this opinion.