State intermediate appellate courts are a most important part of our legal system. They enable the state's highest court to concentrate on a few cases; they guide the trial courts; and they often point the way to needed changes in the law. But they are overworked, with resulting delays and dissatisfaction. To improve their performance, and to increase their usefulness to the highest court and the trial courts, the following should be done: their decisions should be made final, subject to review only in the discretion of the state's highest court; they should not be divided into regional divisions or into specialized courts; they should in every case file a written opinion; their judges should be nominated on merit and confirmed by the legislature; and their staffs should be reorganized. Given modern caseloads, this would involve delegating some judicial responsibility to staff. But on balance, the gain would be greater than the loss, for the judges would be enabled to spend more of their time deciding cases.
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References
1.
1. Pennsylvania's Appellate Courts: A Report of the American Judicature Society to the Supreme Court of Pennsylvania (Chicago: American Judicature Society, 1978), p. 15 (hereafter cited as Report on Pennsylvania Courts).
2.
2. Shirley M. Hufstedler, “Constitutional Revision and Appellate Court Decongestants,”Washington Law Review, 44:577, 586 (Spring 1969).
3.
3. See Marlin O. Osthus, State Intermediate Appellate Courts, 2d. ed. revised by Mayo H. Stiegler (Chicago: American Judicature Society, 1980) (hereafter cited as Appellate Courts).
4.
4. The jurisdiction of Pennsylvania appellate courts is established by chapter 7 of the Judicial Code, 42 Pa.C.S.A. §§701-764.
7. American Bar Association Commission on Standards of Judicial Administration, Standards Relating to Appellate Courts§3.52 (Approved Draft 1977).
8.
8. States with intermediate appellate courts as of December 1981 are: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Missouri, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Tennessee, Texas, Washington, and Wisconsin. See Osthus, Appellate Courts, p. 17, n. 4, Appendices A and B.
9.
9. Ibid., Appendix B.
10.
10. James Strazzella, “The Binding Nature of Pennsylvania Appellate Opinions: Some Problems After the Appellate Reorganization,”Pennsylvania Law Journal-Reporter, 4(26):1 (6 Jul. 1981), citing the “sizable body of literature about their value and soundness,” including the ABA Standards Relating to Appellate Courts (Approved Draft 1977).
11.
11. James D. Hopkins, “The Role of an Intermediate Appellate Court,”Brooklyn Law Review, 41:459, 473 (1975).
12.
12. See, for example, Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), reversing 232 Pa. Superior Ct. 32, 332 A.2d 521 (1974); Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976), reversing 226 Pa. Superior Ct. 181, 313 A.2d 264 (1973) (criminal sentencing cases); Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512 (1980), reversing 257 Pa. Superior Ct. 219, 390 A.2d 791 (1978), but adopting the rule of In re Hernandez, 249 Pa. Superior Ct. 274, 376 A.2d 648 (1977) (child custody procedure).
13.
13. The four states are Alabama, Oklahoma, Tennessee, and Texas. See Osthus, Appellate Courts, Appendix B.
14.
14. The jurisdiction of the Commonwealth Court is established by sections 761-764 of the Judicial Code, 42 Pa.C.S.A. §§761-764.
15.
15. Report on Pennsylvania Courts, pp. iv, 32-33.
16.
16. Larry Eichel, the Philadelphia Inquirer, 8 Nov. 1981. Section G, p. 4, col. 2.
17.
17. Report on Pennsylvania Courts, pp. iv, 56, 58.
18.
18. I have expressed my views on the selection of judges more fully elsewhere. Edmund B. Spaeth, Jr., “Reflections on a Judicial Campaign: Should Judges Ride a Political Bandwagon?,”Judicature, 60:10 (Jun.-Jul. 1976).
19.
19. The phrase is from Wade H. McCree, Jr., “Bureaucratic Justice: An Early Warning,”University of Pennsylvania Law Review, 129:777 (Apr. 1981). In his article, Judge McCree cites other commentators who have expressed similar concerns.
20.
20. The best discussion I have found of this issue is by Arthur D. Hellman, “Central Staff in Appellate Courts: The Experience of the Ninth Circuit,”California Law Review, 68:937 (Sept. 1980).
21.
The American Judicature Society made a similar finding in its study of the Pennsylvania Superior Court. See Report on Pennsylvania Courts, pp. 15-16.
22.
Philip M. Saeta , “Letting a Little Sunshine into Appellate Decision Making,”Judges' Journal, 20(3):20 (Summer 1981).
23.
23. The settlement judge is the Honorable J. Sydney Hoffman. Preliminary data comparing a group of approximately 500 cases referred to the conference program with a similar number of control cases show that settlements were achieved in substantially more of the conferenced cases.
24.
24. Some states come close, for example, Massashusetts. The model I have urged conforms, except regarding the method of selecting judges, to that urged by the American Judicature Society. See Osthus, Appellate Courts, p. 16 and Appendices A and B.
