My last blog entry got me thinking about the general question of justice delayed due to judicial action or inaction.
First, I’d like to send a shout out to the Law Court for its concern about delay in Gilbert, discussed in the previous blog, and its overall promptness in practice. Generally speaking, and compared to a lot of other courts, the Maine SJC issues decisions pretty promptly after argument. The time from filing an appeal to argument is also not huge when compared to other appellate courts, and if you need to expedite things, it’s been my experience that the Law Court can and will do it. So our appellate court is generally pretty prompt in addressing what you put before it.
Conversely, if you were wondering whether a court has ever found that a delay in issuing a decision in a civil case could amount to a due process violation or the constitutional right to access to courts, what a surprise, the answer appears to be no. In Keller v. U.S., 38 F.3d 16 (1st Cir. 1994), for example, the First Circuit found District Court Judge Devine’s eight-year lag between a bench trial and entry of a final judgment wasn’t unconstitutional. Twelve years between trial and judgment wasn’t deemed problematic by the Fifth Circuit in Hollis v. United States, 323 F.3d 330 (5th Cir. 2003).
Inevitably, courts reason that delay per se isn’t a problem (the Law Court said that in Gilbert, too). Then they say that there must be a show of prejudice, and some say there must be some effort by the complainant to get things moving. The Seventh Circuit says you should file a writ of mandamus – Petrilli v. Drechsel, 94 F.3d 325 (7th Cir. 1996).
Obviously, there are practical problems if appellate courts took a more embracing view of delay complaints. Criminal cases constitutionally have to go first, and when budgets get cut, delay inevitably ensues. In the federal world, there isn’t much you can do to get a life tenured trial judge to get a move on, and one pokey judge could create widespread havoc under a per se rule. In Keller, the First Circuit, in rejecting a per se rule, noted, among other things, that “it is highly doubtful that direct appellate review affords ‘an effective means of enforcing district court timeliness’” – “what can we do?” logic. So it’s not exactly a news flash that courts are not leaping up and down to criticize themselves or their brothers and sisters.
That said, to minimize the impact of delay ignores reality. Development projects can’t go through because they can’t get financing without repose. But that’s the kind of delay difficult if not impossible to explain and prove to a court. The longer a matter drags on at the trial level before resolution, inevitably the more litigation expenses are incurred by the parties (and the more those parties seek settlement and an arbitration clause the next time around if possible). While a suit is in limbo, life goes on – bankruptcy cases (and others) can go moot; parties cannot live in suspended animation.
Keller involved a longshoreman’s claim for damages for injuries in a fall on a vessel owned by the U.S. Eventually, the longshoreman lost and the First Circuit affirmed. So on one level, you could ask what was the harm of the delay? The longshoreman wasn’t deprived of money, because he ultimately didn’t get any. And the U.S. didn’t likely sustain any harm from the case pending for eight years. If you look at the merits of the case, it also didn’t exactly look like a miscarriage of justice. (Among other things, the plaintiff had a blood alcohol level of .14.)
But let’s look at another First Circuit decision, Irving v. U.S., 49 F.3d 830 (1st Cir. 1995). That was a federal tort claims act claim, for injuries caused by the alleged negligence of OSHA inspectors in failing to notice the dangerous condition of an unguarded rotating shaft of a die-out machine. The case was before Judge Devine, ruling for the government, and this was the third time his decision went up and was vacated. The accident occurred in 1979, and sixteen years later, there was no end in sight. The proceedings included a three-year lag by Judge Devine between a trial and his order dismissing the suit (without reaching the merits), and another four-year lapse during which he didn’t respond to the second remand.
Because the First Circuit ruled for appellant plaintiff in the third appeal, it said it did not have to address the appellant’s argument that these delays were so substantial that it deprived the plaintiff of her constitutional rights (although notably, the First Circuit also said the “nine and one-third-year delay between trial and the finding significantly undercuts the reason for presuming that the trial court was in a superior position to judge the demeanor and credibility of the relevant witnesses.”)
On one level, this case shows, as the First Circuit noted in Keller, the limited tools the appellate court can have when addressing these issues. What relief would the plaintiff have been entitled to had the Court of Appeals not found in her favor on the appeal? The delay can’t be attributed to the defendant, so you can’t punish it. As the First Circuit basically said in Keller, what can we do? If you read the decision, littered with strong language about the trial court’s “patent” errors and disregard of the First Court’s mandates, you see the appellate court’s frustration. Notably, for the fourth go-around, the Court of Appeals sent the matter to another judge – pretty unheard of in this Circuit – hopefully to act promptly.
But this case also provides context for thinking about the harm in these kinds of delays generally – harms that wouldn’t meet any prejudice standard set by a court in an individual case. What if the machine claimed to be dangerous was a general danger to other workers, or the public? What if the purportedly negligent OSHA inspectors shouldn’t have been retained – how many other purportedly negligent inspections did they engage in, and what harm came from them during these delay periods? If the plaintiff eventually prevailed, what harm did she suffer from not receiving compensation earlier? I don’t know if any of these adverse impacts in fact occurred, either to this plaintiff, or the public, but you can see the possibilities.
There’s a reason for the adage that justice delayed is justice denied, and it’s gratifying that the Law Court seems to get this as a practical matter.