New court in Nevada has some appeal

A view of the construction site for the Nevada Court of Appeals building on Clark Avenue between Fourth Street and Las Vegas Boulevard in downtown Las Vegas, Sunday Dec. 13, 2015. The Federal Justice Tower, an 11-story office building under construction, is shone in the background.

Which cases go to the Court of Appeals??

The complete list, from the Nevada Rules of Appellate Procedure, Rule 17, includes the following cases assigned to the Supreme Court:

• Criminal conviction appeals, besides death penalty and category A felonies

• Family law matters, besides abuse, neglect and termination

• Administrative appeals, other than tax, water or public utilities

• Torts of $250,000 or less

• Appeals challenging venue

• Appeals challenging injunctive relief

• Pretrial writ proceedings regarding discovery or motions in limine

• Trust and estate matters less than $5,430,000

• Foreclosure mediation appeals

Which cases go to the Supreme Court??

The complete list, from the Nevada Rules of Appellate Procedure, Rule 17, includes the following cases assigned to the Supreme Court:

• Death penalty cases

• Business court cases

• Child abuse, neglect, and termination of parental rights cases

• Administrative appeals from tax, water or public utilities commissions

• Cases principally involving unresolved questions of law

• Cases involving the legal system itself (including lawyers, courts and elections)

• Appeals from orders denying motions to compel arbitration

In 2015, Nevada implemented a long overdue judicial reform it had been trying to put in place for more than 40 years: the intermediate Court of Appeals.

Voters had previously rejected proposals for a Court of Appeals four times since 1972. This meant all appeals went directly to the Nevada Supreme Court, which was forced to grow to accommodate the increasing caseload from its original three justices to seven justices by 1997. The court also implemented a series of changes to speed up the processing of cases, including fast-track procedures and splitting the court into two three-justice panels to hear the majority of cases. But by 2014, that still wasn’t enough, and the court had a backlog of 1,985 pending cases, more than any other state supreme court, and its annual influx of cases was more than three times the American Bar Association’s recommended amount for a court of its size.

The problem was so bad that even former opponents of creating an intermediate court grudgingly supported the idea. So in unanimous votes in the state Senate and Assembly, the Legislature passed the constitutional amendment to create a court of appeals, and even preapproved funding for the court in the hopes that voters would approve the measure.

In November 2014, voters did just that. The next month, Gov. Brian Sandoval announced the first three judges for the new court — Jerome “Jerry” Tao and Abbi Silver from Las Vegas, and Michael Patrick Gibbons from Reno — and by January 2015, they were sworn in and processing cases. Last year, the new court was assigned 816 cases and disposed of 712, which helped reduce the backlog of appellate cases to 1,543, its lowest level since 2011.

However, if the number of cases in Nevada continues to increase — and there’s every reason to believe it will — Nevada’s new Court of Appeals is only the first of a series of changes the Nevada judiciary could see over the next few decades.

Part of the reason the Court of Appeals was able to hear and process so many cases so quickly is that it receives cases using what is called a deflective, or “push-down,” method. All cases are still appealed directly to the Nevada Supreme Court, which then deflects some to the Court of Appeals. This differs from traditional appellate systems, such as the federal system, in which cases are appealed directly to the appellate courts, and only some progress beyond that to the Supreme Court. The deflective system is easier to implement and changes the appeals process very little, but creates more administrative overhead for the Supreme Court, which adopts the additional responsibility of looking at every case to figure out which court will hear it, then looking again at the cases it decides to keep in order to finally get to the merits. Three other states use a similar model to Nevada’s: Idaho, Iowa and Mississippi (Oklahoma uses a deflective system for civil cases only). Hawaii and South Carolina previously used deflective systems, but both later switched to more traditional models as their appellate caseloads grew to the point where a deflective system was no longer efficient.

A representative from the Hawaii courts described the old system as needing “a considerable amount of wholly unproductive procedural work as staff and justices must spend time researching and writing about whether a case should be assigned to the (intermediate court) or the Supreme Court, rather than researching and writing about the issues raised by the parties.”

This suggests that while the deflective system may work for a while in Nevada, the state will likely eventually outgrow it.

For now, the only change most Nevada attorneys will notice is a new routing statement they must include with each Supreme Court appeal, describing why the case should be heard by the Supreme Court or the Court of Appeals. Also, in theory, after the Court of Appeals hears a case, the losing party may file a petition for another review by the Supreme Court. But this offers little advantage in practice, as the review is discretionary, and of the 13 petitions filed in the first half of 2015, all were denied.

Creating the Court of Appeals had some other interesting side effects, such as reducing the number of Supreme Court justices back to five. This reduction won’t take effect until the terms of the justices serving in those seats end in January 2019, and it might not take effect at all if the law is changed before then. If the number does decrease, though, that would leave the Supreme Court with too few justices to split into two three-justice panels, and cancel much of the benefit provided by the new Court of Appeals. To prevent this, the Legislature could either change the law to allow the Supreme Court to stay at its current size or increase the size of the Court of Appeals.

The trend in other states has been to allow the Supreme Court to shrink after adding an intermediate appellate court, and instead increase the number of judges at the intermediate level (California, for example, has 105 appellate judges).

In the long run, the most important consequence of creating the Nevada Court of Appeals will likely not be the three-judge court but the larger court it will be able to grow into in the future. Creating the Court of Appeals only took as long as it did because doing so required a constitutional amendment that had to be approved by voters in a ballot measure. However, future changes to the size and even the structure of the Court of Appeals can be done either by the Supreme Court or the Legislature, without the need for another ballot measure.

And if the court does get bigger, finding room for the additional judges won’t be a problem. Construction has begun on an opulent 26,100-square-foot courthouse in downtown Las Vegas that is scheduled to open in December.