March 12, 2013
Last week the news broke about a bill introduced in the Texas legislature that would require the Texas Supreme Court to adopt rules to ensure that appellate courts (including the Supreme Court itself) will decide appeals within a year.
This is not a terrible idea. Texas lawyers can attest to the fact that some appeals can linger, undecided, for too long. I currently represent clients in two appeals pending before the Texas Supreme Court, for example, that have been pending for nearly two years.
But the proposed legislation contains a provision that would require courts to affirm the lower court’s decision, if the appeal is not decided within the allotted time. Obviously, it makes sense to impose some sort of consequence, to give the one-year requirement some teeth. But automatically affirming the lower court’s decision?
That is a terrible idea.
It’s terrible for the reasons already mentioned in the article I’ve linked to above. But it’s also terrible for another, more troubling reason.
Imagine you’re a judge on a court of appeals. You get an appeal from the district court, and after reading the briefs you’re convinced that you’re going to affirm the lower court’s decision. Your fellow panel members agree. But to affirm, someone will have to write a lengthy opinion explaining why you affirm. And then, of course, the appellant will still be able to file a motion for reconsideration, or a motion for rehearing—and the appellant will still be able to challenge your ruling by petitioning the Supreme Court for review. And you might eventually get reversed.
But wait! There’s this new rule that says the lower court will be affirmed automatically if you don’t decide the appeal within a year! Why go to all the trouble of writing a long opinion explaining your reasons for affirming—and why risk being challenged by motion or by petition for review—if you can just let the clock run out and achieve the same result?
In other words, the proposed legislation, as is, threatens to create a perverse incentive for appellate courts to decide fewer cases in a timely manner—exactly the opposite of what the bill intends. If the court knows it’s going to affirm the lower court anyway, why go to the trouble of writing an opinion? Why not just set the case aside and turn your attention to the tougher cases?
I support the general idea that we should somehow encourage appellate courts to decide cases in a timely manner—and within a year seems reasonable. But this isn’t the way to do it.
If I recall correctly, California requires its appellate courts to make timely decisions or the judges’ paycheck will be delayed. That sounds like a pretty good idea. I’d love to hear from California lawyers about how that’s working.