State v. Classen

*243 LENT, J.,

specially concurring.

I concur completely in the majority opinion of the court authored by Mr. Justice Linde. I write only to answer some questions that will necessarily arise in the mind of the reader of Mr. Justice Tongue’s special concurring opinion.

It is true, as stated by my brother, Tongue, that this case could have been "decided” without the necessity of the court through my brother, Linde, devoting the extensive time to research and writing which went into the final version of the majority opinion. I do not perceive the role of this court to be that of "merely” deciding a case when that case comes to us by way of allowing a petition for review as distinguished from direct appeal. I have addressed this before in my dissenting opinion in State v. Garza, 283 Or 1 , 580 P2d 1030 (1978), and I take the liberty of quoting again *244 from the work of Robert Leflar, professor, scholar and formerly Justice of the Supreme Court of Arkansas:

"It is almost axiomatic that every losing litigant in a one-judge court ought to have a right of appeal to a multijudge court. Most do not appeal, but the right is a protection against error, prejudice, and human failings in general. This relates to the appellate function of rectifying trial court errors, of seeing to it that litigants receive justice according to law. It is assumed correctly that a collegial body, removed from local pressures, sitting calmly in a quiet atmosphere with each judge thinking independently, is best able to catch mistakes and remedy them. The ideal of impartial justice can thus be approached.

"It is almost equally axiomatic that one appeal is enough to insure justice between parties. Perfect justice, especially from the point of view of the losing party, may not ensue from any appellate decision. A second appeal carries with it no assurance that justice will be more nearly approximated by mere repetition of collegial processes. The basic advantage of the appellate process, insofar as it increases the probability of fair treatment of the parties under known law, has been exhausted in the one appeal. Any justification for further appeal must be in some other function of the judicial process.

* * * *

"A fair measure of agreement has come to exist among jurists that the principal function of the top court in a three-tier judicial system is to keep the law in proper order. * * *” (footnote omitted and emphasis added) R. Leflar, Internal Operating Procedures of Appellate Courts, p. 4.

With the transfer by the legislature to the Court of Appeals of almost all direct appeal jurisdiction, the Court of Appeals satisfies the collegial error correcting process of the appellate court system in this state. Chief Judge Herbert M. Schwab (the only person to serve in that capacity since the creation of the Court of Appeals in 1969) has made it clear from the inception that the Court of Appeals views its function as that of "deciding cases” rather than "to keep the law in proper order,” leaving that function to this court.

*245 Insofar as my brother, Tongue, speaks to the backlog of "assigned but unwritten” cases, I wish only to note that while I share his concern for the plight of the litigants resulting from the backlog, the comparative statistics do not tell the full tale. Moreover, since December 31, 1978, I think it is fair to say that the situation has improved, and there is every reason to believe that it will be completely remedied within a reasonable time.