specially concurring.
I concur in the majority opinion. I believe, however, that the result reached by the majority would be better understood and accepted by the people of Oregon, who enacted the Oregon Death Penalty Act (ORS 163.116), if stated somewhat differently.
The rule that a person accused of murder is entitled to a jury trial on all of the facts necessary to prove guilt, including the required "culpable mental state,” was *408not an invention of the Oregon courts. The Supreme Court of the United States has also held that no person shall be convicted of any crime without a trial by a jury in which the jury has found beyond a reasonable doubt the existence of every fact necessary to prove that crime.1
In addition, the Supreme Court of the United States, in a series of decisions, has held some state death penalty statutes to be unconstitutional2 and has held that other state death penalty statutes satisfy requirements of the Constitution of the United States.3 In doing so that Court has stated requirements which must be satisfied by state death penalty statutes.4 These requirements, as stated by that court, are binding upon all state courts, including this court.
The Oregon Death Penalty Act is not a product of the Oregon Legislature. Instead, it is the product of an initiative measure submitted directly to the Oregon voters for approval. Those who drafted it for some reason chose to use as a model only a portion of the Texas state death penalty statute, which had been approved by the United States Supreme Court, but omitted other portions which that cotut found to be essential to its constitutionality.5 For *409some reason, they also chose not to propose the measure as an amendment to the Oregon Constitution, which would have resolved any doubts as to its validity under the requirements of that constitution. Instead, the drafters of this measure prepared a measure which, in my opinion, clearly fails to satisfy requirements of the Constitution of the United States as stated by the Supreme Court of the United States.
For these reasons, I believe that the primary basis for the holding by the majority in this court that the Oregon Death Penalty Act is invalid should have been that it simply fails to satisfy requirements as stated by the Supreme Court of the United States and which are binding upon this court.
It does not follow from the decision by the majority in this case, however, that the voters of Oregon cannot adopt a death penalty statute, if they desire to do so, using as a model a state death penalty statute which has been approved by the United States Supreme Court, and if adopted as an amendment to the Oregon Constitution.
More disturbing to me has been the long delay by the majority of this court in arriving at its decision in this case — a delay which is symptomatic of the increasingly serious problem of delays by this court in its handling of appeals during the past four years. The seriousness of this problem is perhaps best exemplified by the- fact that although the Chief Justice of this court announced to the press that a decision of this case was a matter of "top priority” with the court, it has been seven months since the petition was filed in this court for review of the decision by the Court of Appeals in this case and over three months since the case was heard on oral argument in this court.
The Oregon Death Penalty Act (ORS 163.116) provides:
"(5) The judgment of conviction and sentence of death shall be subject to automatic review by the Supreme Court within 60 days after certification of the entire record by *410the sentencing court, unless an additional period not exceeding 30 days is extended by the Supreme Court for good cause. The review by the Supreme Court shall have priority over all other cases, and shall be heard in accordance with rules promulgated by the Supreme Court.”
The death sentence of Quinn was entered by the Circuit Court for Multnomah County on November 21, 1979. On December 19,1979, a notice of appeal was filed by Quinn in the Court of Appeals. On June 4,1980, appeal was denied by it for lack of jurisdiction, based upon its decision in State v. Warren that the Court of Appeals had no jurisdiction to hear appeals under the Oregon Death Penalty Act, but that such appeals must be made directly to this court. State v. Warren, 46 Or App 253, 611 P2d 342 (1980).
On June 23, 1980, a petition for review of that decision was filed in this court and was allowed on July 1, 1980. On September 4, 1980, oral argument was heard in this court on the question whether the Court of Appeals was correct in its holding that it had no jurisdiction to consider appeals under the Oregon Death Penalty Act, but that such appeals must go directly to this court. On October 15, 1980, this court affirmed that decision by the Court of Appeals.
On October 16, 1980, this court heard oral arguments on the merits of this case, including arguments on the question whether the Oregon Death Penalty Act is invalid as unconstitutional. On the same day the case was assigned to a member of the court to write a proposed opinion. It has taken an additional period of over 3 months from the date of the oral argument on October 16,1980, for this court to decide this "top priority” case.6
*411The Standards Relating to Appellate Courts, as adopted by the American Bar Association Commission on Standards of Judicial Administration (1977), provide for Standards of Timely Disposition, including § 3.52(b)(4), which provides as follows:
"Decision. For a court sitting in panels of three judges, the average time for rendering decision should not exceed 30 days; the maximum time for any case, except one of extraordinary complexity, should not exceed 60 days. For a court sitting in larger panels, the average time should not exceed 60 days; the maximum time, eoccept in cases of extraordinary complexity, should not eocceed 90 days.” (Emphasis added)
The various questions raised relating to the validity of the Oregon Death Penalty Act may or may not be such as to qualify this case as one of "extraordinary complexity.”7 It is my opinion, however, that when the people of Oregon command this court to give "priority over all other cases” to appeals under the Oregon Death Penalty Act, this court should have been able to make a decision in this case in far less than 90 days, particularly in view of the fact that members of the court are unanimous in the view that the statute is invalid. In my opinion, the people of Oregon were entitled to a more expeditious handling of this case. The defendant in this case, sitting in "death row,” as well as the defendants in other cases, facing each day with the concern that they may be put to death, were also entitled to a more expeditious handling of this case.
In spite of these facts, I would not have written this opinion if this case were an isolated instance of delay in decisions by this court. The unfortunate fact is, however, that this is but one of many such cases during the past four years. Indeed, the production by this court in terms of the average number of opinions per "regular” justice has steadily declined during the past four years from 41 opinions per "regular justice” in 1976, to 37 in 1977, to 32 in 1978, to 27.6 in 1979 and now to 17.6 opinions per "regular justice” in 1980.8
*412At the same time, and despite the fact that this court has written far fewer opinions during 1980 than in previous recent years, it still has been unable to satisfy the American Bar Association standard of 60 days as the "average time” for disposition of cases after oral argument, much less the ABA "maximum” of 90 days, except in cases of "extraordinary complexity.”
Thus, during 1980 the average "elapsed days” from "argument to decision” was 113 days.9 As of December 31, 1980, there were 9 cases which had been assigned to members of the court for more than 90 days for which no proposed opinions had yet been written, 2 of which had remained "unwritten” by the justice to whom they had been assigned for more than six months. Also, as of December 31, 1980, there were 18 cases which were still "under advisement” pending final decisions after more than 90 days (including the 9 "assigned but unwritten” cases) and 7 of these cases were still awaiting decisions after more than six months from the date of oral arguments.
Indeed, the operation of the court during the past four years appears to be an example of the operation of "Parkinson’s Law” to the effect that the less work a bureaucratic agency has to do the more time will be required to do that work. This raises the question why this court has been unable in 1980 to decide cases more promptly now that this court is completely a court of review and can control the number of cases to be heard on oral argument requiring written opinions by controlling the number of petitions allowed or denied by it for review of decisions by the Court of Appeals.10 In other words, an appellate court which has no control over the number of cases on which it must hear oral argument and decide by written opinion may have a good excuse for delays in decisions resulting from an increase in the volume of appeals over which it has no control. But a state supreme court which is a court of review of decisions by an intermediate appellate court and which can control the number of cases which it *413may choose to hear on oral argument and decide by written opinion has no good excuse for not being able to decide promptly those cases which it chooses to hear and decide.
It is true that cold statistics comparing the number of cases decided in 1980 and in previous years may be misleading and that cases accepted for decision on petitions for review are often difficult cases. On the other hand, while perhaps equally misleading, is the fact that all cases, on assignment by the Chief Justice, are rated by him as (1) "Easy,” (2) "Average,” (3) "Difficult,” and (4) "Super-difficult.” Of the 123 cases decided in 1980 by written opinions, 9 were rated as "Easy,” 89 as "Average,” 24 as "Difficult,” and only one as "Super-difficult.”
It is also true that this court worked under some handicaps in 1980. Four of its members spent time in hospitals and in subsequent recovery and one member faced a contested election. Nevertheless, of the only two members who wrote more than twenty opinions during 1980, one retired after serving for eleven months and the other was incapacitated for five weeks as the result of surgery.
The record of this court during 1980 is reminiscent of its performance 25 years ago. In 1955 this court produced 147 opinions, for an average of 21 opinions per justice. Only three members of the court wrote over 20 opinions. Four members wrote from 13 to 17 opinions each.11 In addition, the problem of delays on appeals to the Oregon Supreme Court had become so serious that the Committee on Judicial Administration of the Oregon State Bar made an investigation of the problem and published a report which included a table listing the number of opinions written by each member of the court each year.12 A Legislative Interim Committee on Judicial Administration also made an investigation of the problem.13 Legislation was then enacted which, among other things, extended the term of the *414Chief Justice from two to six years14 and provided for appointment of retired justices and justices pro tem for use in an effort by the court to catch up with its backlog and become current in its work.15
By dint of hard work under the leadership of a strong Chief Justice and with the help of retired justices and justices pro tem, this court then did catch up with its backlog and became relatively current in its work, so as to become recognized as one of the most hard-working, efficient and productive of all state supreme courts. This was an enviable achievement, and one which the court was able to maintain for several years.
By 1968 it had become apparent that the volume of appeals each year was increasing at such a rapid rate as to threaten to seriously overload the capacity of the court and thus to again substantially increase the period of delay in its disposition of appeals. In response to that problem, the Court of Appeals was established on July 1, 1969.
It is of significance to note, however, that in 1968, this court’s last year as a court of direct appeal, prior to the establishment in 1969 of the Court of Appeals, this court was able to decide 271 cases by written opinions by the seven regular members of the court (plus 74 opinions by pro tem judges), or an average of 38.7 opinions per regular member of the court.
In 1976, seven years after the establishment of the Court of Appeals, with jurisdiction over approximately one-half of all direct appeals, this court received 467 petitions for review. In spite of the added burden of considering and acting upon these petitions for review, this court heard 299 cases on oral argument and was able in 1976 to decide 305 cases by written opinions, including 288 by regular members of the court, plus 17 opinions by pro tem judges, and including both opinions in cases arising on petitions for review and in cases on direct appeal, for an average of 41 written opinions by each regular member of the court. By way of contrast, in 1980, after the Court of Appeals had *415been granted jurisdiction over the remaining one-half of all direct appeals (with some exceptions), this court received 628 petitions for review. In 1980, however, this court heard only 155 cases on oral argument and decided only 123 cases by written opinion, including both opinions in cases arising on petitions for review and in other cases, or an average of 17.6 per member of the court.16
It should be noted, however, that since 1976 the personnel of this court has undergone an almost complete "turnover” and only two members of the 1976 court still remain. Members of the 1976 court were also considerably older than members of the 1980 court.17
Nearly two years ago, in State v. Classen, 285 Or 221, 590 P2d 1198 (1979), I wrote a specially concurring opinion in a criminal case in which a conviction which should have been set aside was not reversed for more than 8 months, despite the fact that it was not a case of "extraordinary complexity” and that the court was unanimous in reversing the conviction. At that time statistics were set forth which demonstrated both the decline in the average number of opinions written per "regular justice” for the years 1977 and 1978 and also the increase in the number of cases "under advisement,” including "assigned but unwritten” cases as of December 31, 1978.18
*416In addition to expressing concern over such delays, attention was called by that concurring opinion to the fact that all Oregon trial judges are required by statute (ORS 1.050) to sign a "Certificate of Compliance” as a condition for payment of their salaries that they have no cases under advisement or undecided for more than three months "unless prevented by sickness or unavoidable casualty, or the time is extended by stipulation in writing * * *.” It was noted that although the requirement of such a "Certificate of Compliance” for appellate judges would not insure action by the entire court on cases within 90 days, such a statutory requirement could require individual appellate judges to at least write proposed opinions on cases assigned to them within 90 days. At the time of that concurring opinion in State v. Classen, supra, it was proposed to the court that it voluntarily adopt by rule of court a requirement for such a "Certificate of Compliance.” That proposal was rejected by the court.
In June 1980 attention was again called by dissenting opinion in State v. Beason, 289 Or 215, 221-222, 611 P2d 1150 (1980), to the fact that as of that date the court had made little progress toward facing and solving this problem during 1979 and during the first five months of 1980, citing statistics for that period. Further attention was called to this problem later during 1980 by special concurring opinion in Haynes v. Burks, 290 Or 75, 619 P2d 632 (1980), a case involving a petition for a writ of habeas corpus for denial of a speedy trial, which was not decided for over four months despite the fact that by tradition "the great writ” for the protection of the rights of persons held unlawfully in jails is to be expedited by all courts so as to grant or deny such writs in a matter of hours or days, rather than weeks or months. See also dissenting opinion in McPherson v. Employment Division, 285 Or 541, 558, 591 P2d 1381 (1979).
It is a distinctly unpleasant task for a member of an appellate court who has both respect and affection for each of his brethren to write such dissenting and concurring opinions. Nevertheless, as stated in Classen (285 Or at 242), as one who has long been concerned with the problem *417of delays on appeal to the Oregon Supreme Court,19 I believe that my primary duty is to this court as an institution dedicated to the prompt, as well as the proper, administration of justice, in recognition of the trite, but true, proposition that "justice delayed is justice denied.” Indeed, a comprehensive national survey of public attitude toward courts by the National Center for State Courts found that the public’s most serious indictment is that litigation not only costs too much, but takes too long.20
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.” Despite comments to the effect that in 1979 the court was "in a period of transition”21 and predictions by other members of the court in 1979 that it was making progress in becoming current in its work,22 the record of the court in 1980, as previously set forth, speaks for itself.23
For all of these reasons, I have reluctantly come to the conclusion that the only effective means of making it clear to members of this court that the people of Oregon expect it to adopt and pursue a sense of real urgency in the disposition of its work is for the Oregon Legislature to enact a statute requiring appellate judges, as well as trial court judges, to sign "Certificates of Compliance” as a condition of payment of their monthly salary, to the effect *418that each appellate judge has had no case assigned to him for more than 90 days upon which he has not written and submitted to the court a proposed opinion.24
It may be that the adoption of such a statute would not of itself provide a complete solution to the problem and would not of itself have provided a solution to the problem of the delay in the decision of this case. It is also true that such a requirement will not insure that all cases will be decided by the court within 90 days, so as to satisfy the "standard” of the American Bar Association. This is because even after the preparation and submission by a member of the court of a proposed opinion, there may in some cases be a prolonged period of disagreement among members of the court during which dissenting or concurring opinions may be written.25
The problem, however, is of such a nature as to be reminiscent of the story of the farmer with a team of stubborn mules who, at the beginning of each day of work, hit each mule on the head with a club. When asked whether that did any good, his response was that "it got their attention.” In other words, the mules then knew that the farmer "meant business” in his orders to them in the performance of their work each day on his farm.
The task of solving the problem of delays on appeals to the Oregon Supreme Court is not one which is subject to simple solutions. The ultimate solution will *419require, among other things, a change in the priorities, work habits and attitudes of members of the court. It may be said by other members of the court, and in complete good faith, that because this court is now a "law announcing” court, rather than a "case deciding” court, it would be "impossible” for them to either write many more "law making” opinions of high quality each year and equally "impossible” to do so within 90 days.
This is again reminiscent of the problems of delay on appeals to this court in the 1950’s when most members of this court wrote less than 20 opinions per year, including many lengthy and elaborate opinions, and when this court was far behind in its docket. Yet during the 1960’s members of this court were able to change their work habits in such a manner and to such a degree as to make it possible for this court to substantially increase the number of opinions written by members of the court each year and so as also to make it possible for the court to achieve and maintain a reasonably current docket.
One of the incentives for that drastic change was a report of the Legislative Interim Committee on Judicial Administration. Included in that report was the following comment about work habits and lengthy opinions:
"Methods of work and habits of mind once established are difficult for anyone to change, harder still for those whose efficiency of action is not subject to constant review by clients, judges, partners, colleagues or employers. Evidence of this fact can, in the final analysis, come only from the court, but the fact itself is widely believed by observers among the Bar and elsewhere.
* * * *
"The function of the court is drawn in question by another frequently voiced criticism, that of the length of the court’s opinions. * * * The matter is one on which there is an honest, reasonable and important difference of opinion. But in the light of the present docket problems, the view that elaborate opinions are a proper and desirable function of the court must yield to the more pressing need to decide cases as rapidly as possible. The primary function of the court is to decide cases. The function of exploring *420and synthesizing the law, while at times helpful, is, in the final analysis, an incidental one.”26
Also, as previously noted, of the 123 cases decided by this court in 1980, only 24 of such cases were rated as "Difficult” and only 1 as "Super-difficult,” while 89 cases were rated as "Average” and 9 as "Easy.” These statistics may be somewhat misleading, as also previously noted. Nevertheless, I am of the firm opinion that while the function of "exploring and synthesizing the law” is now a more important function of the court, the need for "elaborate” or "scholarly” opinions to "explore and synthesize the law” must at least be balanced against the need for the court to decide with reasonable promptness those cases which it chooses to accept for decision if this court is to discharge what I believe to be its duty to the people of Oregon.
In effect, at least, the ABA "standard” for appellate courts of an average of 60 days from oral argument to decision, with a maximum of 90 days except in cases of "extraordinary complexity,” represents such a "balance.” As previously noted, the average number of days from oral arguments to decisions by this court during 1980 was 113 days.27 Based upon my experience as a member of this court for over eleven years, I am convinced that the members of this court have the ability to achieve that "standard.” I am also convinced, based upon my experience, that it would impose no undue hardship upon the members of this court to require that they at least write proposed opinions in all cases within 90 days after oral argument on such cases.
*421The old adage that "justice delayed is justice denied” is more than trite rhetoric. These words have graphic meaning to every person who, whether willingly or unwillingly, becomes a litigant in a case on appeal to this court. These include not only persons who appeal from convictions of crimes and injured persons who have been successful in obtaining money judgments to pay for lost wages, doctor and hospital bills, and who must wait for payment until appeals are exhausted by defendants, but all persons, corporations, cities, counties and agencies of state government whose rights and ability to act have become subject to litigation and to delays on appeals to this court.
Repeated writing of dissenting and concurring opinions by a lone member of this court, calling this problem to the attention of members of the court over a period of two years, has produced no substantial results. If, however, the people of Oregon, through their legislature, adopt a statute requiring "Certificates of Compliance” by appellate judges, as well as by trial judges, as a condition of the payment of their monthly salaries, the adoption of such a statute should be sufficient, in my opinion, to "get their attention.” The adoption of such a statute should also be sufficient to "get the message” to the members of this court that the people of Oregon agree with the people of other states in their indictment of the courts for the operation of a system of justice that takes too long, and that they expect *422this court to "get moving again” to regain its previous and hard-won, but easily lost, reputation as one of the most efficient and productive of all state supreme courts, in keeping with Oregon’s long tradition of leadership in matters of government.
See, e.g., Re Winship, 397 US 358, 363-64, 90 S Ct 1068, 25 LEd 2d 368 (1970). See also Jackson v. Virginia, 443 US 307, 315-16, 99 S Ct 2781, 61 LEd 2d 560 (1979).
Beck v. Alabama, 447 US 625, 100 S Ct 2382, 65 LEd 2d 392 (1980); Godfrey v. Georgia, 446 US 420, 100 S Ct 1759, 64 LEd 2d 398 (1980); Lockett v. Ohio, 438 US 586, 98 S Ct 2954, 57 LEd 2d 973 (1978); Coker v. Georgia, 433 US 584, 97 S Ct 2861, 53 LEd 2d 982 (1977); (Harry) Roberts v. Louisiana, 431 US 633, 97 S Ct 1993, 52 LEd 2d 637 (1977); (Stanislaus) Roberts v. Louisiana, 428 US 325, 96 S Ct 3001, 49 LEd 2d 974 (1976); Woodson v. North Carolina, 428 US 280, 96 S Ct 2978, 49 LEd 2d 944 (1976); Furman v. Georgia, 408 US 238, 92 S Ct 2726, 33 LEd 2d 346 (1972).
Jurek v. Texas, 428 US 262, 96 S Ct 2950, 49 LEd 2d 929 (1976); Proffitt v. Florida, 428 US 242, 96 S Ct 2960, 49 LEd 2d 913 (1976); Gregg v. Georgia, 428 US 153, 96 S Ct 2909, 49 LEd 2d 859 (1976).
See, e.g., Jurek v. Texas, supra note 3, at 271; Gregg v. Georgia, supra note 3, at 166-68; Lockett v. Ohio, supra note 2, at 604; Woodson v. North Carolina, supra note 2, at 303-05.
In Jurek v. Texas, supra note 3, the Supreme Court emphasized that the Texas statute, by narrowing the categories of murders for which the death sentence may be imposed, had essentially set out aggravating circumstances of the type necessary to uphold the validity of the death penalty statutes in Gregg v. *409Georgia, supra note 3, and Proffitt v. Florida, supra note 3. See 428 US at 270-71. No such list of aggravating circumstances or narrowing the categories of murder is found in the Oregon statute.
It may be pointed out that this member of the court, the author of the opinion by the majority, then underwent surgery and was incapacitated for some time. In spite of that fact, however, and also despite the express provisions of ORS 163.116(5), requiring that such cases "shall have priority over all other cases,” that member of the court then proceeded to complete opinions in two cases previously heard by the court, Springfield Ed. Assn. v. Springfield School Dist., 290 Or 217, 621 P2d 547 (1980), and Adams v. Psychiatric Sec. Rev. Bd., 290 Or 273, 621 P2d 572 (1980), and to write opinions in two cases heard subsequently by the court, Miller v. Employment Div., 290 Or 285, 620 P2d 1377 (1980), and Mangus v. Progress Quarries, Inc., 290 Or 377, 622 P2d 319 (1981), before completing a proposed opinion in this case.
When cases are assigned by the Chief Justice to members of the court for the writing of opinions, they are rated by him as follows: (1) "Easy,” (2) "Average,” (3) "Difficult,” and (4) "Super-difficult.” This case was rated as "(3),” i.e., "Difficult,” but not "Super-difficult.”
See note 18 for comparative statistics.
No comparable statistics are available for previous years.
See concurring opinion, State v. Classen, 285 Or 221, 242-43, n. 12, 590 P2d 1198 (1979).
See Appendix B-2, Report of Committee on Judicial Administration, Oregon State Bar, 1956.
Id.
See Report of Legislative Interim Committee on Judicial Administration (1958).
Or L 1959, ch 38-1, now ORS 2.045.
Or L 1959, ch 44.
For comparative statistics, see note 18.
The average age of members of the 1976 court was approximately 65 years. The average age of the 1980 court was under 60 years.
Those comparative statistics, extended to include 1979 and 1980, are as follows:
Comparative Statistics 1976 1977 1978 1979 1980
552 628 Petitions for review received 467 311 408
556 635 Petitions acted upon 456 273 363
136 155 Oral arguments heard 299 344 275
Cases decided by written opinion 305 322* 259 193 123
Average number of opinions per "regular” justice 41 37 32 27.6 17.6
Cases "under advisement” as of December 31 44 74 78 27 48
Cases under advisement "assigned and unwritten” as of December 31 32 64 74 21 35
*This included 63 opinions by pro tern justices.
See Tongue, Delays on Appeal to the Oregon Supreme Court, 36 Or L Rev 253 (1957).
O’Neill, Judges Journal, Winter 1979, Vol 18, No 1, p 7.
See 1979 Annual Reports, Oregon State Bar, Report of Committee on Judicial Administration, p 37.
See statements by Denecke, C.J., as reported in Oregon Statesman March 19, 1979, and concurring opinion by Lent, J., in State v. Classen, supra n. 10 at 245.
See comparative statistics, note 18.
Such a statute should include the same exception in cases of sickness or other casualty as presently provided for trial judges. The statute should become effective after some reasonable period of time to enable members of the court to write opinions on cases assigned to them for more than 90 days. The statute should also require that all cases heard on oral argument be then immediately assigned to members of the court for the writing of opinions, so as to obviate its avoidance by methods such as those used by the California Supreme Court to avoid the operation of a similar statute by not formally accepting a case until the day it is decided. Work, Calif. Probe Shows How Court Makes Rulings, Nat. L.J., July 23, 1979. Finally, although such a statute should logically extend to all Oregon appellate judges, including the Court of Appeals as well as this court, the Court of Appeals would appear to be already sufficiently current in its work so that the adoption of such a statute would impose no undue hardship upon its members.
See, e.g., State v. Tourtillott, 289 Or 835, 618 P2d 423 (1980), and City of Klamath Falls v. Winters, 289 Or 747, 619 P2d 217 (1980).
See Report, supra note 13, at 19-21.
A request was made to the National Center for State Courts for a survey of all state supreme courts in states with intermediate courts for comparative statistics which would show, among other things, the number of cases decided by written opinions each year, with the average number of opinions written per judge each year, and the average elapsed time between oral argument and the final decision of cases.
Unfortunately, many of the courts, including the Oregon court, did not provide all of the requested statistics. Eleven of the twenty-one courts responding, however, decided more than 30 cases per judge by written opinions other than per curiam opinions for the year 1978-1979 (Alaska, Arizona, Colorado, Connecticut, Indiana, Kansas, Kentucky, Louisiana, Massachusetts, New Mexico, and Pennsylvania.) Four of such courts decided between 20 and 30 cases per judge by such written opinions (Illinois (28); Iowa (29); New York (26); and North Carolina (23)). Six of such courts decided less than 20 cases per judge by such written opinions *421(California (18, but with 2,970 petitions for review); Maryland (16); Michigan (18, but with 1,381 petitions for review); New Jersey (13, but with 975 petitions for review); Texas (10, but with 822 petitions for review); and Washington (17)). The Oregon Supreme Court -wrote an average of 17.6 opinions per judge during 1980, with 625 petitions for review.
The comparative statistics from that survey on the average elapsed time from oral argument to decision was more fragmentary. Only six of such courts submitted statistics on that subject: Alaska (237 days); Kentucky (oral arguments every three weeks, opinions "usually ready by next sitting for oral argument”); Maryland (85 days); Massachusetts (90.7 days); New Jersey (108 days median); New Mexico (74.8 days from "submission to decision”); and New York ("4-6 weeks for 90-95% of cases”). It has been said that for the Supreme Court of the United States for the year ending December 31, 1979, the average length of time from oral argument to decision was 98 days, despite its gigantic load of petitions for certiorari and the fact that most of the cases heard by that court are cases of both importance and difficulty. See Work, supra note 24.
Compare 1956 statistics from other state courts as set forth in Tongue, Delays on Appeal to the Oregon Supreme Court, 36 Or L Rev 253, 268 (1957).