Creating more appelate courts just leads to more appeals

By Thomas Mitchell

Once again members of the Nevada Supreme Court are pressing for the creation of an appeals court to reduce their workload.

At the urging of the justices, the 2013 Nevada Legislature passed SJR14, which in November again puts before the voters an initiative to create an appeals court between the 171 judges and the seven-member Supreme Court, though the voters just rejected such a proposal in 2010 and earlier in 1992. But a survey conducted for the Retail Association of Nevada earlier this year found 48 percent favored creating a court of appeals compared to 42 percent opposed.

The Annual Report of the Nevada Judiciary, which came out earlier this month, indeed shows the state’s courts carrying huge caseloads. Of the 10 states that do not have an appellate court, the report showed Nevada had the highest caseload by far — 2,333 cases compared to the second highest of 1,524 in West Virginia and 910 in third highest New Hampshire. That caseload means there are 333 cases for each justice, also the highest.

This has created a growing backlog of cases and has caused some cases to languish before the court for years.

The Nevada Supreme Court handles everything from appeals for driver’s license revocations to appeals in family law, foreclosure mediation, business, and death penalty cases.

“Justice delayed is justice denied,” the annual report editorializes. “This is true regardless of case type — all cases, from child custody disputes to challenges of proposed ballot initiatives to civil monetary judgments to criminal convictions — are urgent to the parties involved.”

To keep up with this caseload, the court has often chosen to dispose of cases with nonprecedent-setting memoranda. These are quicker to write but can’t be cited in later cases, leading to the same issues being argued repeatedly and unresolved. Actual opinions have fallen to between 3 and 4 percent of all cases.

In an introductory comment to the report, Chief Justice Kris Pickering said, “The Supreme Court numbers show the unrelenting demand for court services in Nevada. Despite limited resources and declines in staffing, Nevada’s courts have continued to meet the needs of Nevada businesses and citizens.”

The annual report relates: “In fiscal year 2013, litigants filed 2,333 cases with the Supreme Court, a slight dip from the record 2,500 new cases filed in fiscal year 2012. With just seven Supreme Court Justices, that equates to 333 cases per justice per year in 2013. Since the Court sits in panels of three or seven justices, in reality, that number is at least three times higher, working out to about three cases per justice per day every day of the year. This ratio is one of the highest caseloads of mandatory-review cases per justice in the country.” (Bold-faced text for emphasis.)

Please note the key phrase: mandatory-review cases.

You see, Nevada is one of the few states that allow high court review of darned near any case for any reason or no reason — other than one party not liking the outcome at the lower court level. Most states, like the U.S. Supreme Court, allow discretionary review. Only cases deemed worthy for some stated reason are taken up by the highest state court.

If you look at the stats from 2012, you’ll find the Nevada Supreme Court handled 2,248 appeals. Out of all those cases, the high court reversed only 10 cases and reversed/remanded only 95 cases. The vast majority were affirmed, denied or dismissed.
So, does the state of Nevada need to amend its Constitution to add another court at a cost of $1.5 million — When has any government cost estimate ever been reliable? — or should it amend the Constitution to make appeals discretionary?

Besides, a study conducted 30 years ago found that when states created appellate courts it seemed to encourage more appeals. It turned out that in only a couple of years the number of opinions written by the state court of last resort was nearly the same as before the creation of the appeals court. Supply more courts and you just get more demand.

A survey of Clark County lawyers two years ago by the local newspaper found more than three-quarters support creating an appeals court. Do you think that might be because an appeals court would lead to more billable hours?

Taxpayers and litigants just end up paying more.

Thomas Mitchell is a longtime Nevada newspaper columnist. You may email him at thomasmnv@yahoo.com. Read additional musings on his blog at http://4thst8.wordpress.com/.

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