How the new Nevada appeals court will work

Without any doubt, I knew the first three judges on the new Nevada Court of Appeals would consist of a minority, a woman and one white male. One would be from Northern Nevada, two from Las Vegas. All would be well-qualified. It would be the politically astute thing for Gov. Brian Sandoval to do. He wouldn’t pick anyone not capable of performing well because it would reflect badly on him.

For once, I’m correct.

The three appellate judges sworn in Monday were all sitting District Court judges:

■ Department 1: Jerome Tao, 46, an Asian-American, a Democrat and former speechwriter for U.S. Sen. Harry Reid. In this department, the screening panel had also recommended Washoe County District Judge David Hardy and Las Vegas attorney Kirby Smith.

■ Department 2: Michael Gibbons, 58, a Republican and a Douglas County district judge for 20 years. He’s also brother to Nevada Supreme Court Justice Mark Gibbons. His competitors were Las Vegas attorney Thomas Beatty and Clark County District Judge Susan Johnson.

■ Department 3: Abbi Silver, 49, a Republican who has won election to three different courts. Her rivals for the spot were retiring District Judge Allan Earl, who wanted to top off his career by serving two years on this historic first court, and Northern Nevada attorney Joan Wright.

The Commission on Judicial Selection started with a list of 36 people vying for three seats. Each had to file for a specific department. The seven-member panel recommended their top three choices in each department, and those were the only options Sandoval had. He interviewed each of the nine personally before making his choices.

With nine qualified candidates, Sandoval, a former federal judge himself with experience about the qualities of a good judge, had to make political choices as well.

Tao was appointed to the District Court by Sandoval in 2011, so he had already been vetted by the GOP governor. Plus he received a strong retention rating of 86 percent in the Review-Journal’s 2013 Judging the Judges survey. He has been a prosecutor, public defender, civil trial attorney and Reid’s speechwriter. Reid considered him for a federal judgeship in 2009, and in 2004 Tao failed as a candidate when he tried to unseat then-County Commissioner Chip Maxfield.

As a minority and a Democrat, he’s a two-fer.

Michael Gibbons was the only Northern Nevada judge competing in Department 2, which put him in the catbird’s seat because the plan all along was for the three judges to be sworn in Jan. 5 and get right to work. (As I was interviewing Chief Justice James Hardesty for the column, the three were being trained on their new computers in Carson City). A District Court judge for 20 years, Gibbons was named the chief judge on the Court of Appeals. His community activism helped.

The only downside with Gibbons is that he and his brother look much alike, and it’s inevitable that photos of them will mistake one for the other.

So if he’s the white, male judge from Northern Nevada, that fills that single slot. So what female from Southern Nevada is left?

Silver is the last woman standing that fits that description in her group. She has a 65 percent retention rating from attorneys participating in Judging the Judges. As a prosecutor, she convicted the stalkers of Reid, Steve Wynn, comic Jerry Lewis, former Sheriff Jerry Keller and former Sen. John Ensign. She was elected to the Las Vegas Municipal Court in 2003, the Las Vegas Justice Court in 2005 and to the District Court in 2009 and 2014.

All three will have to run again in two years. This court is considered a possible steppingstone to the Nevada Supreme Court.

Speed was a priority in the selection. Both Hardesty and Sandoval wanted judges who could get to work quickly. That wish seemed to eliminate some attorneys who might need time to wind down a law practice and favor incumbent judges.

Fifty-four percent of the voters approved the new court on Nov. 4, and the screening panel had the nine names forwarded to Sandoval by Dec. 4. He announced his choices Dec. 17, and in just two months, the court has become a reality.

“What we’ve accomplished is pretty remarkable,” said Justice Hardesty, one of the leading advocates for the appeals court. “I believe we are not only being very thrifty with what we decided to do, but believe we’re being very consistent with what we told voters in proposal.”

Voters were told the new court would mean faster decisions in court cases. The three judges will be under the spotlight to make sure that actually happens.

While the overall operating cost is estimated to be $1.5 million a year, that will come out of the existing Supreme Court budget.

The appeals judges will have offices in the Regional Justice Center as well as in the Supreme Court Building in Carson City because they will be hearing cases from all over the state. The existing courtroom on the 17th floor in Las Vegas will be used, and there will be some remodeling, about $450,000 worth, to provide offices for the judges, their executive assistants and two law clerks each.

Hardesty said there is existing space for the new judges and their staffs in both Las Vegas and Carson City. “It requires us to move a few walls.” The court already budgeted $70,000 for office furniture in Las Vegas and less than $21,000 for additional computers.

By May 1, he hopes to have everyone situated north and south.

Hardesty has already assigned 167 cases to be decided by the Court of Appeals. The intent is for the appeals court cases to never end up in the Supreme Court, unless for some reason they are assigned there first. So there won’t be two appeal stages, just one.

The appellate court cases will include post-conviction appeals except in death penalty cases, appeals of a judgment where the sums are $250,000 or less in a tort case, family law matter appeals other than termination of parental rights and appeals in trust and estate matters with a value of less than $5.43 million.The appeals court is expected to hear about one-third of all the cases filed.

Sandoval now will be able to choose three more District Court judges to replace the three he chose, using the same process of a screening panel forwarding him three names for each seat. Because I favor merit selection and retention elections over election of judges, I’m fine with that.

But I’m not so innocent that I don’t know that when the final decisions are made, politics will play a role. And I’m fine with that, too.

Only Sandoval knows what went on in his decision-making. But trust me, politics and a commitment to diversity on the bench played a role. That’s the reality of today’s world. And yesterday’s.

Jane Ann Morrison’s column appears Thursdays. Email her at or leave a message at 702-383-0275. Find her on Twitter @janeannmorrison.

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