specially concurring.
When I came to work on the morning of January 14, 1982, a draft opinion in this case was on my desk. The case had been argued three days earlier, on January 11, 1982. We had received the defendants’ brief on January 4, 1982, and on the day of the argument we received the answering brief of the plaintiff and the defendants’ reply brief. Accompanying the draft opinion was a memorandum from its author concluding with this clause: “Goal: To have opinion issued before close of Thursday [January 14, 1982].”
At the conference of the court following oral argument, I had stated my concerns relative to the constitutionality of the statute involved in this case, but I had by no means thoroughly studied the applicable law.
The fact that the opinion was on my desk compelled me to do one of three things. First, I could join in the opinion without further research or further real consideration of the issues. Second, I could do research. Or *364third, I could express tentative disagreement with the opinion and ask for time to prepare a separate opinion. I was unwilling to join in the opinion, and after rereading it, I told its author that I would probably write separately.
I have other opinions to write. Some people might say that other cases that have been assigned to me for opinion have as much or more importance or significance than this one. In any event, I put those cases aside, and began to work on this case, which was largely completed on the following day, January 15, 1982.1 I will return to this aspect of the case later in this opinion.
The statute involved in this case requires that the appeal must be “* * * heard and determined [by the Court of Appeals] within three months from the time of taking such appeal.” The general issue is whether the statute is unconstitutional under the separation of powers doctrine, Or Const. Art III, § 1, and Art VII, § 1. The specific question is whether a statute which requires the hearing and decision of a case within three months of the time of taking an appeal “* * * unduly burdens or unduly interferes with the judicial department in the exercise of its judicial functions.” Ramstead v. Morgan, 219 Or 383, 399, 347 P2d 594, 601 (1959). Accord, Sadler v. Oregon State Bar, 275 Or 279, 550 P2d 1218 (1976); State ex rel Bushman v. Vandenberg, 203 Or 326, 276 P2d 432, 280 P2d 344 (1955).
The chronology in this case is as follows:
January 19, 1981 Complaint filed in trial court
February 17, 1981 Election
August 6, 7, 1981 Emerald People’s Utility District (Emerald) filed motions for summary judgment
September 24, 1981 Trial court granted summary judgment motions
September 25, 1981 Entry of judgment in trial court
October 22, 1981 Notice of appeal filed
*365November 2, 1981 Emerald filed motion for accelerated hearing, briefing and decision
November 27, 1981 Court of Appeals denied motion
December 1, 1981 Emerald filed motion for reconsideration
December 4, 1981 Court of Appeals denied motion for reconsideration
December 9, 1981 Transcript deemed settled (ORS 19.078(4)
December 17, 1981 Emerald filed petition for alternative writ
December 29, 1981 January 4, 1982 Alternative writ issued Defendants’ opening brief filed
January 11, 1982 Answering brief filed. Reply brief filed. Court heard oral argument.
The legislature has imposed, by statute, procedures applicable to the appeal of cases (including the cases in the Court of Appeals) as follows:
Transcript should be filed within 30 days after the filing of notice of appeal. ORS 19.078(1).
Within 15 days after the transcript is filed, any party may move to correct the transcript. ORS 19.078(3).
After the court acts upon the motion to correct the transcript, the trial court shall enter an order settling the transcript. In the absence of a motion to correct or add to the transcript, the transcript is deemed automatically settled 15 days after it is filed. ORS 19.078(4).
The normal appeal procedures permit 30 days after filing the notice of appeal for preparation of the transcript, and up to 30 days thereafter for settlement of the transcript.2 The transcript in this case was settled on December *3669, 1981, 48 days after the notice of appeal was filed, and three months from October 22, 1981, would end on January 25, 1982.3 In this case, then, from the time the transcript was deemed settled until the time that the case must be “heard and determined” under ORS 261.615 would be between six and seven weeks.
The fact that it is possible for the appeal to be “heard and determined” within three months is by no means dispositive of the constitutionality of ORS 261.615. In fact, the possibility of hearing and decision within such a period is, to my way of thinking, largely irrelevant in considering whether the statute is constitutional.
The principle of separation of powers is well established. It exists under the constitution of the United States and under the constitution of each of the 50 states. The principle prohibits the legislature not only from exercising judicial functions, but also from unduly burdening or interfering with the judicial department in its exercise of judicial functions.4 The majority make reference to this rule on page 361 of its opinion.
The majority conclude that the “* * * legislative command to the Court of Appeals to hear and determine the case within three months from the time of taking the appeal does not on its face necessarily ‘unduly burden or unduly interfere with the judiciary in the exercise of its judicial functions.’ * * largely because it is possible for the case to be heard and determined within three months. The majority apparently rely largely upon Nendel v. Meyers, 162 Or 661, 94 P2d 680 (1939). I will discuss that case below.
I am persuaded that, even though the Court of Appeals could possibly hear and determine the appeal in this case within the statutorily prescribed time, the intrusion by the legislative branch into affairs which are peculiarly the responsibility of the judicial department violates *367the separation of powers clauses of the Oregon Constitution. The Court of Appeals has had outstanding success in its handling of one of the heaviest caseloads-per-judge of any intermediate appellate court in the United States.5 It controls the time the cases shall be set for hearing, the manner of hearing, and the manner of disposition of cases coming to it. I believe that legislative intrusion into this uniquely judicial function is prohibited by the Oregon Constitution.
*368I have found, no case from any other state reaching the conclusion that the majority reaches in this case.6 In fact, virtually every court which has considered this problem holds that such legislative action is prohibited. The appendix to this opinion lists most of the courts which have considered this problem. Without exception, they have reached a contrary conclusion.
Of course, on the issue involved in this case, this court is not bound by the decisions of the courts of any other state. Indeed, on this question, this court is not bound by the Supreme Court of the United States, for the construction of the Oregon Constitution is the responsibility of Oregon courts, not federal courts. Even so, as any reader of our reports knows, we often refer to the decisions of other courts for guidance and direction, and I, for one, believe that the decisions of other courts which have considered the identical issue should be looked to.
More to the point, however, if we have an Oregon precedent which has decided the identical issue now presented, we must follow that precedent unless we now decide to overrule it. The majority’s principal reliance is upon the case of Nendel v. Meyers, supra. That case involved the application of a statute which provided that a trial court must determine a motion for a new trial within 55 days after entry of judgment, and that if the motion was not “heard and determined within said time, the said motion shall conclusively be taken and deemed as denied.”7 The court held that an order setting aside a judgment more than 55 days after the entry of judgment was “null and void,” because the trial court had no jurisdiction over the matter. On the constitutional issue, the court held:
“* * * It is only by virtue of the statute that a party litigant had the right to move for a new trial. Certainly it is within the province of the legislature to prescribe the procedure for the hearing and determination of such motions. ***”
*369The provision in the statute in Nendel provided that the motion would be deemed denied 55 days after the entry of judgment. The effect of that provision is similar to the provision in ORS 19.078(4), providing that the transcript is deemed settled if no objections are filed within 15 days after the transcript is filed. The purpose of such statutes is to prevent a losing litigant from indefinitely postponing the ability of the winning party to obtain the benefits of a victory.
The legislature can give, and the legislature can take away. That is the basis for the decision in Nendel v. Meyers, supra. But the legislature cannot take away a power that it did not give. State ex rel Oregon State Bar v. Lenske, 243 Or 477, 492-493, 405 P2d 510, 407 P2d 250 (1966). Perhaps the legislature could pass a statute providing that no appeal would exist in cases such as the case at bar.8 But having provided for an appeal, the disposition of the case by the judicial department is largely a matter for the judicial department, once the procedural steps provided for by the legislature have been met.
I am sensitive to and agree with the statement that because courts have the last word as to when there has been a transgression upon their domain, the power should be exercised with extreme caution and only when there has been a plain and palpable abridgement of the powers of one department by another. U’Ren v. Bagley, 118 Or 77, 81, 245 P 1074, 46 ALR 1173 (1926). I disclaim any “knee-jerk” reaction to the statute in this case and aim to suppress judicial arrogance. But the doctrine of the separation of powers is more than a theoretical, philosophical concept. It is a practical, workaday principle. Although each of the three departments do not exist in watertight compartments, a line must be drawn to separate judicial functions from legislative functions. I would draw that line in favor of the decision of the Court of Appeals.9
I concede that the Court of Appeals was created by the legislature; it could be abolished by the legislature. But having established the Court of Appeals, the legislature cannot unduly interfere with purely judicial functions.
*370“* * * [T]here is a third realm of judicial activity, neither substantive nor adjective law, a realm of ‘proceedings which are so vital to the efficient functioning of a court as to be beyond legislative power.’ This is the area of minimum functional integrity of the courts, ‘what is essential to the existence, dignity and functions of the court as a constitutional tribunal and from the very fact that it is a court.’ Any statute which moves so far into this realm of judicial affairs as to dictate to a judge how he shall judge or how he shall comport himself in judging or which seeks to surround the act of judging with hampering conditions clearly offends the constitutional scheme of the separation of powers and will be held invalid.” L. Levin & A. Amsterdam, Legislative Control Over Judicial Rulemaking: A Problem in Constitutional Revision, 107 U Pa L Rev 1, 31-32 (1958). (Citations omitted.)
The institutional independence of the judicial branches has been preserved as the doctrine of separation of powers and has consistently caused courts to declare void legislation which insisted on judicial action with a set period of time.
“No one will deny that the legislative arm of the government has the power to alter and regulate the procedure in both law and equity matters, but for it to attempt to compel the courts to give a hearing to a particular litigant at a particular time, to the absolute exclusion of others who may have an equal claim upon its attention, strikes a blow at the very foundation of constitutional government. The right to control its order of business and to so conduct the same that the rights of all litigants may properly be safeguarded has always been recognized as inherent in courts, and to strip them of that authority would necessarily render them so impotent and useless as to leave little excuse for their existence and place in the hands of the legislative branch of the state, power and control never contemplated by the Constitution.” Atchison, Topeka & Santa Fe Railway Company v. Long, 122 Okla 86, 251 P 486, 489 (1926).
I concede that it is possible for the Court of Appeals to decide this case within three months. Considering its outstanding record in the disposition of cases that come before it, perhaps it could even be said that the Court of Appeals could decide this case within three months without substantial difficulty. But, as I have set aside other important work to work on this case, so the consideration *371of the cases in the Court of Appeals will require them to set aside other important cases. Normally, courts decide how and when cases should be heard and determined. This is historically true. Permitting the legislature to tell us when and how to hear and determine cases will impermissibly affect judicial functions — the manner in which cases are prepared, argued, considered and determined.
Considering all of the aspects of the problem, although the question is a close one, I would follow the lead of other courts that have considered the issue, and hold that the statute is unconstitutional. For as this opinion may reflect, opinions spurred by a sense of urgency, with adrenalin flowing, the banner of advocacy waving, and the opportunity for detached consideration lacking, often result in passionate statements of position reflective of advocacy more than reason.
APPENDIX
State ex rel Kostas v. Johnson, 224 Ind 540, 69 NE2d 592, 168 ALR 1118 (1946). (Statute provided that if judge (in trials on questions of fact) fails to determine, within 90 days, any issue of law or fact taken under advisement, the submission of the issue will be withdrawn and the judge will be disqualifed); Resolute Ins. Co. v. Seventh Jud. Dist. Ct. of Okl. Co., Okl., 336 F Supp 497 (WD Okla 1971) (Statutory provision required judge to act within 30 days on motion to set aside order of forfeiture of bail); Sands v. Albert Pike Motor Hotel, 245 Ark 755, 434 SW2d 288 (1968) (Statute required affirmance of Worker’s Comp order in Circuit Court within 60 days, or order deemed affirmed); In re Estate of Barker, 24 Ill App 3d 959, 321 NE2d 709 (1974); Siskoy v. Walsh, 22 Wis 2d 127, 125 NW2d 574 (1963) (Statute required that court hear motion within 20 days); State v. Merialdo, 70 Nev 322, 268 P2d 922 (1954) (Statute requiring judges to file affidavit of “no cases over 90 days” as condition of getting paycheck); United States v. Brainer, 515 F Supp 627 (DC Md 1981); Schario v. State, 105 Oh St 535, 138 NE 63 (1922) (Statute required that petition in error must be heard by reviewing court within 30 days of the filing of the petition); Atchison, T & S. F. Ry Co. v. Long, 122 Okla 86, 251 P 486 (1926) (Statute provided that court shall try certain cases within 10 days *372after answer); Holliman v. State, 175 Ga 232, 165 SE 11 (1932) (Statute imposed time limit in which Supreme Court could act on petition for certiorari); Riglander v. Star Co., 98 App Div 101, 90 NYS 772, 794 (1904), aff'd 181 NY 531, 73 NE 1131 (1905) (Declaring unconstitutional a statute requiring court to set certain cases for trial on certain day, to the preference of other cases). See annotation in 168 ALR 1125.
As my secretary typed this opinion I was rushing to complete a rewrite of one opinion and to complete a third opinion.
In practice, the time can be longer, because the statute, ORS 19.078(4) does not require that the trial judge set the hearing on objections to the transcript within 15 days after the objections to the transcript are filed.
To calculate the period of “three months,” see ORS 174.120.
Sadler v. Oregon State Bar, 275 Or 279, 287, 550 P2d 1218, 1222-223 (1976); Ramstead v. Morgan, 219 Or 383, 399, 347 P2d 594, 601 (1959); State ex rel Bushman v. Vandenberg, 203 Or 326, 276 P2d 432, 280 P2d 344 (1955). See discussion in H. Rottschaefer, American Constitutional Law 52 (1939).
The statutes are largely silent upon the procedures to be followed in the appellate courts of Oregon. The Supreme Court and Court of Appeals have promulgated rules which provide, in part, as follows:
“The appellant’s brief shall be served and filed within 60 days after the transcript is settled or deemed settled under ORS 19.078(4). Rule 7.45
The respondent’s brief shall be served and filed within 60 days after the filing of the appellant’s brief. Rule 7.45.
The appellant’s reply brief must be served and filed within 30 days after the filing of the respondent’s brief. Rule 7.45.”
The monthly statistical reports issued by the Court of Appeals and Supreme Court reveal the following time intervals:
Court of Appeals
1980 Criminal Other
Time lapse
Filing to at issue 136 days 154 days
At issue to argument 37 days 37 days
Argument to decision 22 days 52 days
Period ending 11-30-1981
Filing to at issue 128 days 155 days
At issue to argument 29 days 43 days
Argument to decision 52 days 75 days
The mean yearly rate of increase in appeals in Oregon between 1971 and 1978 was 18 percent. No state has had a higher annual increase. In 1978, the filings per judge on the Court of Appeals in Oregon were 311, fourth in the nation among states having intermediate appellate courts. In cases decided, the Oregon Court of Appeals ranked third. Marvell and Kuykendall, Appellate Courts — Facts and Figures 9 et seq., Spring 1980, State Court Journal. The Summer 1980 issue of the State Court Journal, at page 9 et seq, reveals that the Oregon Court of Appeals, during the period described in the article, (1) had the shortest period between court judgment and submission of any intermediate appellate court, (2) had the shortest elapsed time between the time when the case was “at issue” and oral argument of any intermediate appellate court, and (3) had the shortest time between oral argument and decision of any intermediate appellate court.
There are, however, cases which reject the claim that speedy trial statutes in criminal cases violate the separation of powers doctrine. They turn upon the constitutional guarantee of a speedy trial. See, e.g., State v. Pachay, 65 Ohio St 2d 218, 416 NE2d 589, 591-592 (1980), and State v. Warren, 224 Kan 454, 580 P2d 1336, 1339 (1978). Contra, United States v. Brainer, 515 F Supp 627 (DC Md 1981).
ORCP 64F is still to that effect.
See Klamath Falls v. Winters, 289 Or 757, 762, 619 P2d 217 (1980).
See A. Vanderbilt, The Doctrine of the Separation of Powers 50-51 (1963).