December 2007

THE CASE FOR AN INTERMEDIATE COURT OF APPEALS IN NEVADA*

NANCY ALLF, PRESIDENT, STATE BAR OF NEVADA

 

The solidity of a state is very largely bound up with its judicial decisions.

Marcus Tullius Cicero (106-43 BC)    

 

 

It is time for Nevada to have an intermediate court of appeals.  Nevada's increasing population and the rising caseloads in our trial courts and the Supreme Court mandate the establishment of the Nevada Court of Appeals.  Although members of the judicial branch have (over the past 30 years) proposed legislation required for the creation of an intermediate appellate court in Nevada, and the Nevada State Legislature has approved and passed seven joint resolutions toward the goal of establishing the new appellate court, voters failed to pass ballot initiatives to create an intermediary appellate court in both 1980 and 1992.  Both initiatives failed at the ballot box by only a few percentage points.

 

Over the last 19 years, Nevada has experienced tremendous population growth, which has resulted in a tremendous increase in the number of court cases filed and in appeals from decisions of the lower courts.  Current trends are expected to continue. The current state population is estimated to be 2.5 million, with steady growth predicted over the next decade.  The Supreme Court's caseload has also grown steadily over the past 40 years.  The total cases filed during fiscal year 2006 was 2,086, and by 2013 the number of cases filed in the Supreme Court is forecast to be 2,900.

 

The optimum relative workload for Supreme Court justices is 100 per justice.  Since our court is composed of seven justices, the current caseload well exceeds the optimum.  Continuing efforts to establish an intermediate court of appeals is the only responsible approach.  Without relief, our appellate court system will not continue to function at an acceptable level.  The time necessary for disposition of cases will become longer and longer, and it is possible that the quality of the decisions rendered may suffer if there is insufficient time available to devote to each case.

 

Presently, 39 states have intermediate courts of appeals.  Nevada ranked 35th in the nation in population as of July 1, 2006.  Five states that have lower population and growth rates than Nevada have intermediate appellate courts of appeal, namely New Mexico, Nebraska, Idaho, Hawaii and Alaska.  Utah, ranked at 34, also has an intermediate appellate court.  Utah's appeals court has seven judges who sit in panels of three.  New Mexico, ranked 36th in population, has one Court of Appeals with ten judges who sit in panels of three.  Nebraska, ranked 38th, has a Court of Appeals with six judges.  Idaho, ranked 39th, is the third fastest-growing state in the nation and has a Court of Appeals with three judges.  Alaska has the lowest population of the states with an intermediate appellate court and is ranked 47th in population.  Its Court of Appeals has three judges. Hawaii ranks 42nd in population and has an Intermediate Court of Appeals with six judges.

 

 

Presently there are ten other states, including the District of Columbia, that do not have an intermediate appellate court.  Using a "disposition per justice" ratio, it appears that in 2004 members of the Nevada Supreme Court handled the highest number of cases annually, at 278 cases each, compared to the other similar states.  Of those states, the number of cases handled per justice was:  West Virginia 233, District of Columbia 195, New Hampshire 144, Delaware 117, Vermont 115, Montana 114, Maine 96, South Dakota 91, North Dakota 79, Rhode Island 77, and Wyoming 60. By June 30, 2006, the Nevada Supreme Court's "disposition per justice" ratio had increased to 289.

 

Comparing the "disposition per justice" ratio in the states comparable to Nevada in population but which have intermediate courts of appeal, the "disposition per justice" numbers for their Supreme Courts are:  Utah 123.2, New Mexico 125.6, Nebraska 36.7, Idaho 149, Hawaii 190.4, and Alaska 79.

 

Under the provisions of the previous ballot initiatives, it is anticipated that the Nevada Court of Appeals would assume the primary duty of "error correction," so that the Supreme Court can focus primarily on the function of developing the common law of the state by interpreting and developing case law. The Nevada Court of Appeals would be modeled in great extent after the New Mexico appellate court.  The Nevada Supreme Court would retain exclusive jurisdiction in all criminal cases where the penalty is either death or a life sentence.  Appeals that raise constitutional claims would also be decided by the Supreme Court, as would original petitions for all extraordinary writs necessary in the exercise of the Supreme Court’s jurisdiction and issues of first impression.

 

The Nevada Court of Appeals would be empowered to hear most civil and criminal appeals, including post conviction relief actions (which don't involve death sentences or life sentences), and would be given jurisdiction to consider original petitions for writs necessary in the exercise of its jurisdiction.  Rules would be adopted to transfer cases as appropriate, from the Court of Appeals to the Supreme Court and vice-versa. The types of cases appropriately assigned to the court of appeals would include appeals from petitions for judicial review from administrative agency decisions and original proceedings challenging a ruling in a criminal case.

 

The Court of Appeals would be staffed by three judges, who would serve six-year terms.  To be eligible, candidates for the appellate court would be at least 25 years of age, licensed to practice law for at least 15 years and a resident of the state for at least two years. Salaries would be proposed to be less than Supreme Court justices but more than District Court judges.  The Nevada Court of Appeals would be staffed with two law clerks and one judicial secretary for each justice.  The fiscal impact for the salaries of the new judges, law clerks and staff is estimated to be less than $1.2 million.

 

In order to get on the ballot, a joint resolution for the court of appeals must pass twice in the state legislature.  A joint resolution has passed in the state legislature and will come up again in 2009.  At this time, the earliest the measure can appear on a statewide ballot is 2010, after which the legislature would provide by law for the creation of the new court in 2011.

 

Establishing the Nevada Court of Appeals will require time, money and the concerted efforts of the members of all three branches of government, but will, over time, have an overall positive effect on our entire state’s court system and the judicial process. The creation of an appellate court in Nevada is essential to the successful growth and development of our system of justice.

 

Attorneys are persons who influence public opinion, whether we are willing to admit it or not.  Roman lawyer and statesman Cicero said that the quality of judicial opinion is important to the quality of the state.  If that is true, then we, individually, should encourage our legislators and voters to approve the establishment of the Nevada Court of Appeals.

 

 

*The Complete Report to the 74th Regular Session of the Nevada State Legislature 2007, Regarding the Creation of the Nevada Court of Appeals, submitted by the Supreme Court of Nevada and dated March 2007 is available at www.nvsupremecourt.us.