specially concurring.
I concur in the opinion by the majority, but wish to make it clear that by my concurrence I do not acquiesce in the long delay of over 10 months after oral argument in the preparation of a proposed opinion for submission to this court for approval, not to speak of the delay of 12 months after oral argument in the final decision of this case.
At the recent annual meeting of the Oregon State Bar, Chief Justice Denecke, in his annual report as Chief Justice, stated that all members of this court are “concerned” about the length of the period between oral argument of cases in this court and the decision of such cases. He did not, however, offer any hope of reducing this period of delay, much less any program or proposals to accomplish that purpose.
I have previously protested similar long delays in the preparation by members of this court of proposed opinions for consideration by the court. See State v. Classen, 285 Or 221, 238, 590 P2d 1198 (1979); Haynes v. Burks, 290 Or 75, 91, 619 P2d 632 (1980); State v. Quinn, 290 Or 383, 407, 623 P2d 630 (1981); Sterling v. Cupp, 290 Or 611, 633, 625 P2d 123 (1981); and Ore-Ida Foods, Inc. v. Indian Head Cattle Co., 290 Or 909, 923, 627 P2d 469 (1981). Despite these protests, the average period of time from oral argument of cases to their decision by this court has increased during the past year. As of August 31, 1980, the average time from oral argument to decision was 97 days. As of December 31, 1980, that period of delay had increased to 113 days. As of April 30, 1981, it had increased further to 124 days, and as of August 31, 1981 (the latest available statistics), this average period of delay had increased further to 128 days.
The American Bar Association, in its “Standards Relating to Appellate Courts” prepared by its Commission on Standards of Judicial Administration in 1977, called for an average of 60 days from oral argument to decision, with a maximum of 90 days, except for cases of “extraordinary complexity.”1 Indeed, a more recent report by the ABA *761Action Commission to Reduce Court Costs and Delay appears to regard a delay of 30 days by appellate courts in deciding cases as excessive and recommends, among other things, that decisions by appellate courts be made within 7 days of oral arguments in cases deemed suitable for “expedited handling,” i.e., single issue or “straightforward” appeals. (The Judges’ Journal, Spring 1981, Vol. 20, No. 2, pp. 50,54. See also p. 59.)
In other words, at a time when responsible advocates of reform injudicial administration call upon appellate courts to substantially reduce the period of delay between oral argument and the decision of cases, this court has permitted that period of delay to substantially increase to an average of more than twice even the 1977 ABA Standards for Appellate Courts, to say nothing of the reform called for by the more recent ABA Commission.
This would not be good, according to ABA standards, even for an appellate court under a heavy caseload and one required to hear all appeals. It is far worse for an appellate court such as this, which is a court of review and which, by declining review, can control its caseload.2 Delays for an average of 128 days after oral argument by such a court in deciding cases in a “second layer” of appeals become particularly intolerable when added to the time required for the Court of Appeals to previously hear and decide such cases and the time required to process petitions for review in such cases.
The principal cause for this increase in delay in the decision of cases, in my opinion, is the failure of members of this court to prepare proposed opinions for consideration by this court within 90 days of oral argument. (See discussion in Ore-Ida Foods, Inc. v. Indian Head Cattle Co., supra, at 923.) I have previously suggested that for the purpose of preparing proposed opinions in cases assigned to them, appellate judges should be subject to the same rule *762which required trial judges to file “certificates of compliance” as a condition of payment of their monthly salaries to the effect that they have no cases “under advisement or undecided” for more than 90 days unless prevented by sickness or unavoidable casualty, or the time is extended by stipulation in writing (ORS 1.050). See State v. Classen, supra, 242, n. 10; and State v. Quinn, supra, at 416. A request was then made for an opinion by the Attorney General of the State of Oregon whether ORS 1.050 was a valid statute.
In response to that request, the Attorney General issued an opinion to the effect that ORS 1.050 is unconstitutional, in part upon the ground that the statute gave no consideration to the problem of a judge assigned a case of great difficulty. In so ruling, the Attorney General undertook to distinguish the decision of this court in Nendel v. Myers, 162 Or 661, 94 P2d 680 (1939), in which this court held that the legislature could properly require trial judges to rule on motions for new trials within 55 days, as a statute “enacted to expedite court business.” The Attorney General suggested, however, that “* * * The Supreme Court may have power, by rule, to impose such a limitation upon the trial judges of the state * * *.” (1981 A.G. Op. No. 8006, March 5,1981, p. 9.)
It is of interest to note that since that opinion by the Attorney General, and despite the fact that this court has said that “we are not bound” by such opinions (Alexander v. Gladden, 205 Or 375, 383, 288 P2d 219 (1955)), this court has not considered either the validity of that opinion or the suggestion that such a requirement be adopted by court rule for either trial judges or appellate judges. ORS 1.050 has not been repealed by the legislature. Trial judges have been informed by the Court Administrator, however, that they need no longer file such “certificates of compliance.”
As a result, trial judges are now free to take more than 90 days to decide cases and other matters submitted to them for decision for the first time since the adoption of what is now ORS 1.050, presumably to stop such abuses by some trial judges. In my view, this has been a further “step *763backwards” by this court on the vital subject of delays in litigation on which the public is extremely critical of the courts. (See State v. Quinn, supra, at 417, referring to a survey of public attitude toward courts by the National Center for State Courts.)
It may be that a rigid “90-day or no pay” rule for appellate judges would be unreasonable and that some “flexibility” should be allowed for preparation of proposed opinions by appellate judges who are assigned cases of “extreme complexity” (cf. ABA Standard for Appellate Courts). In my view, however, it would be both reasonable and practicable for this court to adopt a “90-day or no pay” rule for both trial judges and appellate judges, subject to the qualification that the period of 90 days may be extended by the Chief Justice upon a showing of good cause in writing in cases of “extreme complexity.” At the least, in my opinion, this court should face up to the problem of what I believe to be an excessive period of delay between oral argument and the decision of cases by this court, and take some positive action, by court rule or otherwise, in an affirmative effort to alleviate this problem.
Expressions of “concern” about the problem by members of this court and its Chief Justice are futile unless transformed into a program for affirmative action. As stated in State v. Quinn, supra, at 419, if members of the court have the will to do so, they can find a way to accomplish that purpose, just as this court, beginning in 1957, overcame a similar problem of delays on appeals, under the leadership of a strong Chief Justice.
Indeed, the recent decision by this court in the “legislative reapportionment case” (McCall v. Legislative Assembly, and related cases) decided September 24,1981, after oral argument on September 14,1981, is proof that even in a case involving problems as difficult and complex as those presented in that case, a well-reasoned and somewhat lengthy opinion, with two specially concurring opinions, could be prepared by members of this court within 10 days after oral argument, and well within the time limit of October 1, 1981, as mandated by Article IV, Section 6(2)(c) *764of the Oregon Constitution, when the members of this court are required to do so.3
This may be a case of “extraordinary complexity.” That fact does not, in my opinion, justify a delay of over 10 months in the preparation of the proposed opinion in this case for submission to the court for approval.
As noted in the concurring opinion in State v. Quinn, 290 Or 383, 623 P2d 630 (1981), since this court became a full court of review, the average number of opinions per “regular” member of this court has steadily declined from an average of 41 for the year 1976 to 17.6 for the year 1980.
There is no reason to believe that in the absence of that constitutional requirement the period of time between oral argument and decision of these cases would not have been as long as in other cases of comparable or even less difficulty during the past year beginning September 1, 1980, and which were not decided for more than six months after oral argument. See, e.g., The Kashmir Corporation v. Patterson, 289 Or 589, 616 P2d 468 (1980), Blanton v. Union Pacific Railroad Co., 289 Or 617, 616 P2d 477 (1980); City of Klamath Falls v. Winters, 289 Or 757, 619 P2d 217 (1980); State v. Knowles, 289 Or 813, 618 P2d 1245 (1980); State v. Tourtillott, 289 Or 845, 618 P2d 423 (1980); Stevenson v. State of Oregon, 290 Or 3, 619 P2d 247 (1980); Hall v. State, 290 Or 19, 619 P2d 256 (1980); State ex rel Young v. Crookham, 290 Or 61, 618 P2d 1268 (1980); Frasure v. Agripac, 290 Or 99, 619 P2d 274 (1980); State v. Bruno, 290 Or 159, 619 P2d 648 (1980); State v. Odam, 290 Or 160, 619 P2d 647 (1980); Springfield Education Assn. v. School Dist., 290 Or 217, 621 P2d 547 (1980); James v. SAIF, 290 Or 343, 624 P2d 565 (1981); Castro v. SAIF, 290 Or 353, 624 P2d 564 (1981); Maddox v. SAIF, 290 Or 357, 624 P2d 570 (1981); Mitchell v. SAIF, 290 Or 361, 624 P2d 571 (1981); Paresi v. SAIF, 290 Or 365, 624 P2d 572 (1981); Sterling v. Cupp, 290 Or 611, 625 P2d 123 (1981); Smith v. Smith, 290 Or 675, 626 P2d 342 (1981); Wash. Squ. v. First Lady Beauty Salons, 290 Or 753, 625 P2d 1311 (1981); Ore-Ida Foods v. Indian Head, 290 Or 909, 627 P2d 469 (1981); Smith v. Pernoll, 291 Or 67, 628 P2d 729 (1981); Mehrer v. INA Life Ins., 291 Or 115, 628 P2d 397 (1981); State v. Curran, 291 Or 119, 628 P2d 1198 (1981); State v. Shumway, 291 Or 153, 630 P2d 796 (1981); U.S. National Bank v. Fought, 291 Or 201, 630 P2d 337 (1981); State v. Clark, 291 Or 231, 630 P2d 810 (1981); State v. Edmonson, 291 Or 251, 630 P2d 822 (1981); State v. Blocker, 291 Or 255, 630 P2d 824 (1981); State v. Ogle, 291 Or 364, 630 P2d 865 (1981); U.S. Nat’l Bank v. Homeland, 291 Or 374, 631 P2d 761 (1981); Grable v. Weyerhaeuser Company, 291 Or 387, 631 P2d 768 (1981); Hitchcock v. McMinnville City Council, 291 Or 404, 631 P2d 777 (1981); Fed. of Seafood Hrvstrs v. Fish & Wildlife Comm., 291 Or 452, 632 P2d 777 (1981).