specially concurring.
The Standards Relating to Appellate Courts, as written 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:
"(4) 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, except in cases of extraordinary complexity, should not exceed 90 days. ” (Emphasis added)
The crime for which defendant was indicted was committed on May 15, 1975. Defendant was tried and convicted on September 16, 1976. His appeal to the Court of Appeals was argued before that court on September 23, 1977. It affirmed his conviction on November 15, 1977.
*239On December 15, 1977, defendant filed a petition for review in this court. This court did not act upon that petition until April 11,1978, when it was allowed. The case was then set for oral argument and was argued on June 5, 1978. Now, on February 12, 1979, over two years and four months after defendant’s improper conviction, 14 months after the filing of defendant’s petition for review, and eight months after the case was argued, this court finally has decided the case.
This is not a case of "extraordinary complexity.” Defendant’s conviction was based upon inherently untrustworthy "identification” evidence and the decisive issue was a relatively uncomplicated question of fact. The majority opinion of the Court of Appeals reached a clearly wrong result in affirming the conviction, for reasons stated by Chief Judge Schwab in his dissent. That opinion could well have been reversed by this court for the same reasons. In any event, it should, not have taken so long for the court to decide this case, particularly in view of the supposed preference to be given to the expedition of decisions in criminal cases and the fact that meanwhile the defendant may still be in jail for a crime for which he was improperly convicted.
That the decision of a case on petition for review to this court should be so long delayed — and in an "expedited” criminal case — demands some explanation. Indeed, the long delay in the issuance of the majority opinion is symptomatic of the problem of increasing delays in the disposition of appeals to this court during the past two years. This problem is of particular concern at this time. The appellate jurisdiction of the Court of Appeals has recently been expanded, with the result that direct appeals to this court in most civil cases have been replaced by direct appeals to the Court of Appeals and by petitions for review to this court. As a result, there has been a corresponding extension of that "second layer”in the *240appellate process in Oregon, with its attendant potential for additional delays.1
The problem of which this case is symptomatic is best understood by reference to the following facts. During 1976 this court received 467 petitions for review and acted on 456 petitions, allowing 43 and denying 413. As of December 31, 1976, this court had pending a backlog of 48 petitions for review, of which only one had been pending for over 90 days. In addition, during 1976 this court heard oral arguments on 299 cases and decided 305 cases by written opinion,2 for an average of 41 opinions per "regular” justice.3 As of December 31, 1976, there were 44 cases "under advisement,” including 32 "assigned and unwritten” cases,4 of which only one case had been argued prior to the summer "break” in August 1976.5
*241By way of contrast, during 1978 this court received 408 petitions for review and acted on 387 petitions, allowing 45 and denying 342. As of December 31, 1978, this court had pending a backlog of 106 petitions for review, of which 43 had been pending for over 90 days, including 10 pending for between five and six months.6 In addition, during 1978 this court heard oral arguments on 275 cases and decided 259 cases by written opinion,7 for an average of 32 opinions per "regular” justice.8 As of December 31, 1978, there were 79 cases "under advisement,” including 74 "assigned and unwritten” cases, of which 17 (including this and four other criminal cases on petitions for review) had been argued before the summer "break” in August 1978. The significance of these facts is more easily understood by reference to a table of comparative statistics.9
*242It is obvious from these facts that during the past two years the problem of delays on appeals to this court has become increasingly serious, to say the least. Such delays cannot be justified when, as in this case, a defendant improperly convicted of a crime may be required to wait two years and five months to have that conviction reversed. Such delays are equally onerous in civil cases. They also serve to encourage appeals by losing litigants.
It may not be appropriate in a concurring opinion to propose possible remedies for this problem.10 Because of my high regard for each of my brethren it is also difficult for me to be critical of the operation of this court. Nevertheless, as one who has long been concerned with the problem of delays on appeals to the Oregon Supreme Court,11 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 Oregon. It is trite but true, as again demonstrated by this case, that "justice delayed is justice denied.”12
Prior to January 1, 1978, the appellate jurisdiction of the Court of Appeals was limited to criminal, probate, guardianship, adoption, juvenile and domestic relations cases and to appeals from state or local agencies. This constituted approximately one-half of the scope of appellate jurisdiction. As of that date, however, the appellate jurisdiction of the Court of Appeals was extended to tort, contract and equity cases, among other civil cases, so as to include the remaining one-half of appellate jurisdiction.
As a result, beginning on January 1,1978, all notices of appeal in such cases were filed with the Court of Appeals. Due, however, to the "time lag” resulting from the preparation of transcripts of testimony and briefs, the setting of such cases for oral argument, and the preparation of opinions in such cases by the Court of Appeals, few petitions for review in such civil cases reached this court during 1978. By reason of that same "time lag,” many civil cases in which notices of appeal were filed in this court prior to January 1,1978, were not "at issue” on their briefs and ready for argument until after that date. Such cases provided the bulk of the work of this court during 1978. Indeed, some of these cases have not yet been argued, much less decided.
Some cases decided in 1976 were argued in 1975.
288 opinions were written by "regular” justices and 17 by justices pro tern.
"Assigned and unwritten” cases are cases assigned to justices for the writing of proposed opinions. Cases "under advisement” are all cases argued and not decided, including, but not limited to "assigned and unwritten” cases.
The court does not take a vacation in August, but hears no oral argument in August. Many members use this time to write opinions on cases previously assigned to them.
It is possible that despite some reduction in the number of petitions for review filed in 1978, the nature of such petitions resulted in a larger number of more difficult cases.
When this court no longer hears direct appeals and becomes exclusively a "court of review” it is to be expected that the cases heard on petitions for review will be more difficult than many of the cases previously heard on direct appeal. As a result, both the total number of opinions per year and the average number of opinions per judge will then be considerably lower.
225 opinions were written by "regular” justices and 34 by justices pro tern.
Comparative Statistics 1976 1977 1978
Petitions for review received.......................................... 467 311 408
Petitions acted upon ....................................................... 456 273 387
Petitions pending as of December 31 ............................. 48 85 106
Petitions pending over 90 days as of December 31................................................................. 1 7 43
Oral arguments heard .................................................... 299 344 275
Cases decided by written opinion ................................... 305 322* 259
Average number of opinions per "regular”
justice .......................................................................... 41 37 32
Cases "under advisement” as of
December 31 ................................................................ 44 74 78
Cases under advisement "assigned and
unwritten” as of December 31 ..................................... 32 64 74
Cases "assigned and unwritten” as of December 31 argued prior to preceding
August ......................................................................... 1 3 17
* This included 63 opinions by pro tern justices.
Possible remedies which have been suggested include the voluntary adoption by the court of a rule comparable to the "Certificate of Compliance” required by statute (OBS 1.050) for trial judges, under which they must certify 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 * * *.”
Although the requirement of such a "Certificate of Compliance” for appellate judges would not insure action by the entire court on petitions for review or other cases within 90 days, it could require individual justices to prepare and submit recommendations on petitions for review within 90 days and also to write proposed opinions on cases assigned to them within 90 days, or some other appropriate period.
See Tongue, Delays on Appeals to the Oregon Supreme Court, 36 Or L Bev 253 (1957).
Justice Lent, in a thoughtful concurring opinion, quite properly calls attention to the fact that as this court becomes a court of review its primary function will be "to keep the law in proper order,” rather than "deciding cases.” In my view, however, that fact alone can neither excuse nor explain the long delay in its decision of this case and the large number of "assigned and unwritten” cases at the end of 1978, during which the court heard few more cases on petitions for review than in 1976 and 1977.
*243Hope is expressed by Justice Lent that progress is being made by the court in alleviating the problems of delay. I join in that hope. Indeed, when this court decides its last cases on direct appeal and becomes exclusively a court of review it could then control its "intake” so as easily to be able to decide all cases accepted on petitions for review with far less delay, and with no more effort than exerted by it during 1978.
An equally serious and related problem could then arise, however. The majority of the court appears to be of the view that petitions for review should be allowed only in cases of public importance. See 1000Friends of Oregon v. Bd. of Co. Comm., 284 Or 41, 584 P2d 1371 (1978). Such a view, depending upon its application, may be contrary to the view that although such cases should take precedence, the court should also, to the extent of its capacity, make every effort to allow petitions for review in cases in which there were substantial and prejudicial errors in trials or in adminitrative proceedings not corrected by the Court of Appeals, or in which that court misapplies the law in cases not of great public importance, particularly when substantial injustice has been the result. (See Tongue, J., concurring opinion, 284 Or at 47.) This latter function is of great importance, in my opinion, in the light of the staggering caseload of the Court of Appeals.
Thus, when this court becomes exclusively a court of review in 1979 the problem will be not only whether the court can then decide without unreasonable delay the cases arising from petitions for review allowed by it, but also whether the court can do so without unduly restricting its "intake” by the denial of petitions for review in cases which could and should be decided by it if this court is able to work to the full extent of its capacity.