specialty 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.
*924It 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.1 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 *925takes too long and that "justice delayed is justice denied.”2 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.3
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 "[¿judicial 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— *926three 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 P2d 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 P2d 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 *927improper to do so. More recently, in State v. Quinn, 290 Or 383, 407, 623 P2d 630 (1981), and in Sterling v. Cupp, 290 Or 611, 633, 625 P2d 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.
See concurring opinion in State v. Quinn, 290 Or 383, 411-422, 623 P2d 630 (1981). See also concurring opinion in State v. Classen, 285 Or 221, 242, 590 P2d 1198 (1979).
See concurring opinion in State v. Quinn, supra, at 417.
For a statement of further reasons in support of such a rule, see concurring opinion in State v. Quinn, supra, at 411-422.