Nevada appeals court creation forces cut in number of Supreme Court justices

The creation of Nevada’s new Court of Appeals comes with a little-known consequence: Under existing law, the state stands to lose two Supreme Court justices in 2019.

“We’re now in a very strange situation as a court,” said Michael Douglas, one of the outgoing justices.

Unless the law is changed, the seats of Douglas and Justice Nancy Saitta will be eliminated at the end of their terms. Their seats were the two most recently added to the Supreme Court.

Chief Justice James Hardesty said the high court’s seven justices advocated the establishment of an intermediate appellate court, even though it likely means two of them will lose their jobs.

“We didn’t use that as a reason to support the Court of Appeals,” Hardesty said.

In fact, the Supreme Court did not raise the issue at all, although Hardesty remembered answering questions about it from voters who were familiar with the law.

Voters approved the Court of Appeals in November by passing Question 1, a constitutional amendment, to help clear a large backlog of cases. It was the fifth time such a measure had appeared on the ballot, with similar questions failing in 1972, 1980, 1992 and 2010.

Gov. Brian Sandoval appointed the new court’s three judges — Michael Gibbons, Jerome Tao and Abbi Silver — and they were sworn in on Jan. 5.

But the 1997 law that increased the size of the Supreme Court from five to seven justices also included a provision that returns it to a five-member court “on the date on which the voters approve a constitutional amendment establishing an intermediate court of appeals.”

According to a separate provision, however, “The additional justices whose positions are abolished by the establishment of an intermediate court of appeals must be permitted to serve the remainder of the terms to which they were elected. At the end of those terms, the positions of the additional justices must be abolished, along with the positions of any staff hired directly to support the additional justices.”

Hardesty said that means the seats held by Douglas and Saitta will expire in January 2019, unless the Legislature takes action before then.

“I think only a handful of voters actually understood that, because it wasn’t talked about,” Douglas said.

The 1997 law also authorized the Supreme Court to decide cases with three-justice panels. Hardesty said the court’s caseload has increased dramatically since then.

Douglas, who joined the court in 2004, said he thinks it does a better job with seven people.

When more people review the types of novel legal issues that come before the court, he said, “You get a better analysis of the problem.”

With more justices, the court also has a better cross section of people, he said.

Hardesty did not give his opinion on the matter, calling it “a policy question for the Legislature.”

“Certainly, I think many people believe that the court should remain at seven,” the chief justice said.

Nevada was the 41st state to implement an intermediate appellate court.

Anne Traum, a law professor at UNLV’s Boyd Law School, said only a few states have a “push-down model” such as Nevada’s. Under such a model, all appeals are filed with the state Supreme Court, but they are then screened to determine which cases should be reassigned to the intermediate court.

Traum said the trend in states with similar systems has been for the intermediate court to grow, “at least a little.”

For instance, she said, a similar system in Iowa led to a reduction in the size of the Supreme Court from nine to seven members and an increase in the size of the appellate court from five to nine members.

Traum views Nevada’s Court of Appeals as a “baby institution” that will mature in the future, as the state’s backlog of cases is winnowed.

“I think over time, new seats will be added,” the professor said. “It will make sense to add them, because they have a lot to do.”

Hardesty said Nevada’s constitutional amendment allows expansion of the Court of Appeals, but there is no immediate plan to do so.

Traum said the Supreme Court was “strategic” to start with an intermediate appeals court that has a small fiscal impact.

“So by design, they have had a net gain of only one judge,” she said.

The three judges on the Court of Appeals receive annual salaries that range from about $178,000 to about $201,000, while Douglas and Saitta each are paid $207,400 a year.

Douglas, 66, does not know whether he will be ready to retire in 2019. He said he is in good health and still enjoys his work, so “life is kind of open.”

Saitta could not be reached for comment.

Contact Carri Geer Thevenot at cgeer@reviewjournal.com or 702-384-8710. Find her on Twitter: @CarriGeer.