Judging the Judges: Nevada high court justices again ask for appeals court

CARSON CITY -- Just more than a year ago -- in the November 2010 election -- 53 percent of Nevada voters rejected a Supreme Court-sought ballot question to create a state intermediate appeals court.

Rather than take no for an answer, justices already have moved a resolution through one session of the Legislature to bring back the issue to voters in 2014.

And in their drive to create the intermediate court, their biggest allies are lawyers, who seemingly might best know the consequences of Nevada not having such a court. Only 11 states lack one.

A whopping 78.2 percent of the 872 Clark County lawyers polled recently by the Review-Journal in the 2011 Judicial Performance Evaluation say they favor establishing an appeals court. Just 15.9 percent said no, while 6.1 percent were not sure or didn't answer.

That's some kind of landslide.

As proposed, the intermediate court would be a three-judge panel between the district courts and the Nevada Supreme Court. It would hear some appeals of District Court decisions, rather than all appeals going to the state Supreme Court.

The cost of the new court has been estimated at $1.6 million a year. Its judges would use existing state Supreme Court buildings and staff in Carson City and Las Vegas.

"Give us the additional hands and hopefully we will speed up the overall resolution of cases," said Justice Michael Douglas, who led the move in the last Legislature to put the issue back before voters. "We are mindful that anyone whose liberty is at stake deserves speedy justice."

If justices can convince legislators to approve the same resolution during the 2013 session, voters again will be asked to support an appeals court.

Not everyone is happy, however, with the court's persistence.

"I believe people are becoming non-voices," said Lynn Chapman, a Reno resident who lobbies for conservative causes and spoke against voting again on an issue people opposed. "How many times do we have to say no? They are not listening, and that is insulting to people."

Besides the 2010 defeat, voters in 1992 rejected a similar ballot question, by almost the same margin.

Chapman said she voted for the new court in 2010, but got mad when justices went back to the Legislature last spring to request another vote. They should have waited longer, she said.

But Douglas pointed out that if the ballot question were approved by voters in 2014, the appeals court would not be created before 2016. By then, the backlog of cases not yet considered by the court will be even larger, he said.

As of July 1, the court had a backlog of 1,689 cases. In a typical year, justices can complete about 2,200 cases. Without an appeals court, Douglas figures the backlog never would reduce to a manageable level.

That means people with civil and minor criminal appeals of District Court decisions must wait for hearing dates.

The state Supreme Court tries to prioritize major criminal and election law cases, but less important cases wait, some for years. If those cases can be assigned to the appeals court, then justices believe everyone wins.

Could the new court add another bottleneck, however, if too many losing parties appeal its decisions to the state Supreme Court?

Based on what happens in other states, Chief Justice Nancy Saitta said a bottleneck would not be created in Nevada. Even if an intermediate court decision were appealed to the state Supreme Court, Saitta said justices likely could dispose of the case quickly, since the legal arguments already would have been discussed by appellate judges.

Justice Michael Cherry said not having an appeals court makes no sense. He noted there are 82 district judges in Nevada and all make decisions that some losing parties will appeal to the state Supreme Court.

"We can only read so many briefs," he said. "It is a tough battle staying up with the workload."

Cherry noted that Nevada is the largest state without an intermediate court. Utah, New Mexico and other states about Nevada's size all have them, he said.

Justice James Hardesty is more blunt: "Do the voters want us to handle drivers' license revocations or resolve the 60-plus pending death penalty cases?"

All aggrieved people are entitled to appeal district court decisions, he added, asking, "But does it have to be decided by the highest court in the state, or can it be an appeals court?"

With their workload reduced by the appeals court, justices could concentrate more on writing opinions, outlining the legal reasons for their decisions in important cases, rather than just issuing one-paragraph orders, Hardesty said.

Written opinions are important because they guide judges, lawyers and residents about how the Supreme Court has applied state laws and the constitution. A written opinion can help someone decide whether to appeal a different case.

But no matter how strong the justices' desire to establish a new court, Douglas conceded that's one decision the people themselves will make.

Again.

Contact reporter Ed Vogel at
evogel@reviewjournal.com or 775-687-3901.