ORE-IDA FOODS v. INDIAN HEAD

PETERSON, J.

Affirmed.

Denecke, C.J., and Tongue and Tanzer, JJ., filed separate concurring opinions.

DENECKE, C.J., concurring.

I concur in the majority opinion. I write specially to state another reason for concurring.

In the last 35 years, as the legislatures and the courts provided for recovery for more persons who were injured and the amount of recoveries increased, those required to pay these more frequent and larger recoveries increasingly sought reimbursement for their losses. The already recognized remedy of indemnity was tried as a reimbursement device. It worked. The decision in Ryan Stevedoring Co. v. Pan-Atlantic SS. Corp., 360 U.S. 124, 76 S Ct 232, 100 L Ed 133 (1956), caused an all out exploitation of indemnity which clogged the dockets of the federal courts. See S Rep No 1125, 92d Cong, 2d Sess 9 (1972). The popularity of indemnity spread rapidly from the Ryan context of shipowner versus stevedore to other areas such as products liability.

In the maritime area, the havoc created by indemnity litigation was brought to the attention of Congress. In 1972 it amended the Longshoremen's and Harbor Workers' Act. 33 USCA § 905. One purpose of the amendments was to curtail the indemnity litigation between shipowner and stevedore. Gorman, The Longshoremen's and Harbor Workers' Compensation Act — After the 1972 Amendments, 6 Journal of Maritime Law and Commerce, 1, 22 (1974).

In the maritime area most of the would-be indemnitors and indemnitees are liability insurance companies. I have no statistics; however, experience causes me to believe that in other areas in which indemnity is commonly sought, the real parties in interest are insurers or other kinds of persons who have a large base from which to secure reimbursement for their losses; that is, insurance premium payers, customers, etc.

At this time of extreme court congestion I am of the opinion that courts should not seek to extend the scope of indemnity in order to allocate losses between parties who can otherwise widely distribute their losses.

Forty years ago Fleming James wrote criticizing the movement to abolish or limit the rule prohibiting contribution among joint tortfeasors. Contribution Among Joint Tortfeasors, 54 Harv L Rev 1156 (1941). He stated:

"* * * Of course, insurance companies and self-insurers are fully as much entitled to be shielded from the hardships of injustice as individuals are, but the actual operation of the present rule is very different in its effect upon them because each company of this kind is a constant litigant. As among these perennial defendants it is inevitable that claims for contribution will cancel out in the long run. * * *." 54 Harv L Rev at 1168.

Similarily, the insurers and self-insurers who are would-be indemnitors or indemnitees are perennial litigants and their claims for indemnity and efforts to avoid indemnity "will cancel out in the long run" and the time and expense of the courts should not be used to allot losses between them.

TONGUE, J., specially concurring.

I concur in the opinion by the majority. This has been a difficult decision, for reasons stated by the majority. I would point out, however, that not only was this case submitted to this court for decision after oral argument on June 26, 1980, over ten months ago, but that this was one of the nine cases upon which a proposed opinion had not been written for more than 90 days as of December 31, 1980.

In other words, the long delay in the decision of this case has not been so much the result of the deliberative process in which all members of the court participate in discussion, analysis and criticism of proposed opinions — a necessary process to assure correct and well-reasoned opinions by this court. This is a process which may extend over a period of several weekly court conferences. Instead, the principal cause of the long delay in the decision of this case has been that no proposed opinion was written for more than 90 days — more than six months in this case — so as to provide a basis for the beginning of that deliberative process.

This is the principal cause for the long delays in many decisions by this court and is a problem which in recent months has become even more serious, as demonstrated by the fact that as of April 10, 1981, the date of the latest statistical tabulation, of 47 cases still "under advisement" and undecided after oral argument, 18 of such cases had been "assigned but unwritten" for more than 90 days, compared with 9 cases "under advisement" and "assigned but unwritten" for over 90 days as of December 31, 1980. Also, the latest statistics available show that during the first three months of 1981 the average elapsed time from oral argument to decision increased to 123 days, compared with an average of 101 days during the first three months of 1980, in spite of the fact that the number of cases heard on oral argument during the same period declined from 44 in 1980 to 39 in 1981.

It has been previously proposed that because this court is now a court of review, with control over the number of cases to be heard and decided by it, it would be reasonable to require by statute or rule of court that members of this court prepare proposed opinions on all cases assigned to them within 90 days. In response, it has been said that members of the court should not be required by statute or rule of court to write proposed opinions within 90 days for two reasons: (1) In the preparation of an opinion for a difficult case it is better to take the time required to prepare a "good opinion," rather than a poor, hastily prepared opinion, and (2) different members of the court have different "priorities," some members considering that the writing of opinions is of no more importance than the study of proposed opinions by other members of the court for possible errors, and some members considering that the participation in other law and court-related programs is also of comparable importance.

The need for "good opinions" is of obvious importance. The reason why most, if not all, proposed opinions are not prepared within 90 days, however, has not been that the cases have been so complicated as to require 90 days for the preparation of a "good opinion." Instead, the primary reasons have been that judges have allowed their "backlog" of "assigned but unwritten" cases to build up until several of such cases are over "90 days old" and that meanwhile other "priorities" have been considered to be of more importance.

As for "priorities," the need for each judge to carefully scrutinize proposed opinions by other judges is also of obvious importance, as is the need for judges to participate in at least some law and court-related programs. In my opinion, however, both the need for "good opinions" and the matter of such "priorities" must be "balanced" against the importance of deciding cases with reasonable promptness.

It has been stated that one of the principal causes of public dissatisfaction with the courts is that litigation takes too long and that "justice delayed is justice denied." In my opinion, the "standard" for appellate courts adopted by the American Bar Association for "timely disposition" of an average of 60 days from oral argument to decision, with a maximum of 90 days except in cases of "extraordinary complexity," represents a reasonable and proper "balancing" of these competing needs and "priorities." For the same reasons, it is my opinion that a "standard" by statute or court rule requiring that members of this court at least prepare proposed opinions within 90 days in all cases assigned to them would not only be a reasonable rule, but one representing a proper "balancing" of these competing needs and priorities.

With reference to the concurring opinion by Tanzer, J., I respect the views expressed, despite some of its strong language to which I will not respond in kind.

First, Justice Tanzer views my concurring opinion as a "reflection upon the diligence of the author of the majority opinion." No such reflection is intended. Although I may disagree with the "priorities" of the author of that opinion, he is a diligent member of this court for whom I have great respect. What I write is intended, however, as a reflection upon the failure of this court to come to grips with the increasingly serious problem of delay in its decision of cases. The delay in the decision of this case is only symptomatic of that problem. But for the increasingly serious nature of that problem I would not have written this concurring opinion.

Next, Justice Tanzer repeats the contention that the present role of this court as a court of "discretionary review" is one which calls for "thoughtfulness, not speed"; that "[j]udicial dispatch is preferable to quick and dirty judicial work to meet deadlines," and that "the court has deliberated responsibly in this case." I do not disagree. With all due respect, however, I believe that the suggestion that a member of this court should be able to write a proposed opinion in a case assigned to him within 90 days — three full months — is hardly a demand for "quick and dirty judicial work to meet deadlines." As previously stated, the problem is one of balancing the need for thorough and "thoughtful" opinions, arrived at after proper deliberation by the entire court, against the equally important need that cases be decided with reasonable promptness. This problem is not one which arises from a conflict in personalities among members of the court, as has also been suggested, but is one involving a difference in "priorities" and a proper balance of such priorities.

Finally, Justice Tanzer protests what he regards as a "misuse" and "abuse" of the pages of these reports by my concurring opinion in this case, which he regards as the use of a "subscriber-subsidized soapbox" for a "broadcast of personal opinions unrelated to caselaw." He suggests that a more proper vehicle by a judge for such criticism would be "in the press, in the law reviews, before the legislature, in political discussion at election time." Again, with all due respect, it is my view that it would be improper for a member of this court to express criticism of this court by going to the press or to the legislature, or by engaging in "political discussion," and I have deliberately refrained from doing so.

What I have undertaken to do in this case and in other cases is not a pleasant task for a member of a collegial court who has both affection and respect for all of his brethren. I first did so in State v. Classen, 285 Or. 221, 238, 590 P.2d 1198 (1979), a criminal case in which a wrongful conviction that should have been set aside was not reversed by this court for more than eight months after oral argument. I still believe that it was proper for a member of this court, in concurring in that decision, to protest that long delay. Indeed, not to protest would have given the impression of acquiescence in that long delay. In Haynes v. Burks, 290 Or. 75, 91, 619 P.2d 632 (1980), involving petition for a writ of habeas corpus for denial of a speedy trial and which was not decided for over four months, contrary to the tradition that habeas corpus proceedings should be decided in a matter of hours or days, not weeks or months, I again protested the delay in that decision in a concurring opinion and believe that it was not improper to do so. More recently, in State v. Quinn, 290 Or. 383, 407, 623 P.2d 630 (1981), and in Sterling v. Cupp, 290 Or. 611, 633, 625 P.2d 123 (1981), I have continued to protest, rather than acquiesce, not only the delays in the decisions of those cases, but the increasingly serious problem of delays on appeals to this court in terms of the increasing number of cases which have been "assigned but unwritten" by members of this court for more than 90 days, despite the fact that each year since 1976 this court has decided fewer and fewer cases — from an average of 41 opinions per judge in 1976 to an average of 17.6 opinions per judge in 1980. As previously noted, this same trend has continued during the first three months of this year.

As stated in State v. Quinn, supra, at 417, "I find myself both frustrated and saddened by the failure of this court to take effective action toward a solution of what has become a problem of such a magnitude as to result in what I believe to be a partial paralysis of the effective functioning of this court as a court of justice in the sense that `justice delayed is justice denied.'" Having entered this arena, however, I do not intend to withdraw until this court takes some such effective action, at which time I shall be only too glad to do so.

TANZER, J., concurring.

I write separately because I do not wish the concurring opinion of my colleague, Justice Tongue, to be taken as a credible reflection upon the diligence of the author of the majority opinion or of the court. The majority opinion in this case is like the tip of an iceberg: it describes our decision not to modify established principles of negligence and indemnity, but it does not begin to reflect the enormous amount of investigation, analysis, rumination and collegial interplay that preceded its issuance. That the resulting opinion is no milestone in legal history does not mean that the author dawdled or that the court spun its wheels.

Oregon's appellate judicial system has been fundamentally altered since the publication of Tongue, Delays on Appeal to the Oregon Supreme Court, 36 Or L Rev 253 (1957). The underlying assumptions of that criticism were valid under the conditions of that day but they are no longer valid under the changed conditions of a generation later. The Supreme Court is now a court of discretionary review. Speedy action on petitions for review is desirable because litigants are best served by a prompt decision and the decision of the Court of Appeals should not be unduly delayed. We should intervene only where the reason to review is sufficient to justify delaying the effect of the Court of Appeals decision. Where review is allowed, however, there is usually an issue of broader significance. The court may be called upon to formulate law which will influence the future conduct of countless lawyers and clients and the decision of pending and future cases. Thus, review is a time for thoughtfulness, not speed; for deliberation, not haste. Judicial dispatch is preferable to quick and dirty judicial work to meet deadlines. Today, the Supreme Court should be evaluated on the quality of its opinions, not the quantity or the swiftness of their preparation. Every judge has his or her own speed and his or her own sense of responsibility of office. Moreover, one-judge opinions are to be avoided, but collegial participation takes time and does not show up statistically. Unless the judge has delayed irresponsibly, there is no reason to scold him. The court has deliberated responsibly in this case and the fact that it was not done fast enough to satisfy one of our members does not detract from that conclusion.

The most important reason for this separate opinion, however, is to protest what I regard as the misuse of the pages of these reports. Judicial opinions should reflect the legal reasoning of the court with the objective of clarifying the law for the assistance of the bench, bar and public. Access to the Oregon Reports for publication of our opinions is a privilege of appellate judicial office. To use that privilege for the publication of one's non-legal opinions having nothing whatever to do with the rationale of the case before the court is, in my opinion, an improper use of that privilege, however well intended. Criticism of the performance of the court is a healthy sign of a free society and judges have the same right of free speech as others, but the place for judges to do so is in the same places as non-judges may do so: in the press, in the law reviews, before the legislature, in political discussion at election time or any other appropriate private or public forum. The place is not the Oregon Reports, however, because they are for our legal opinions. They are not our subscriber-subsidized soapbox. To use the Oregon Reports as a vehicle for the broadcast of personal opinions unrelated to caselaw is an abuse of our official privilege. Having thus violated the principle I have stated, I shall attempt to continue to abide by it in the future.