Between now and the November election you likely will hear this phrase repeated frequently: “Justice delayed is justice denied.”
This pithy little aphorism is usually attributed to 19th century British Prime Minister William Gladstone and argues that legal redress not delivered in a timely fashion is tantamount to no redress at all — such as some court cases here in Nevada that are still pending, though most of the original parties have long since died.
It is the favorite argument proffered by advocates for setting up an appeals court in Nevada, even though voters rejected similar proposals in 2010 and 1992.
Actually, that is not the strongest argument for ballot Question No. 1. You see, in order to keep up with its truly monumental caseload, the Nevada Supreme Court has over the past years resorted to disposing of most cases with non-precedential memorandum, or what are called unpublished opinion, since these can be prepared quicker and more easily than a full blown opinion. The case is settled but the ruling sets no precedent for similar cases, and thus offers no guidance for the courts, attorneys and parties. The same legal ground gets plowed over and over, wasting time and money for litigants and taxpayers.
“The published opinions that establish guidance on unsettled questions of Nevada law, as a percentage of the number of total dispositions, has declined over the years to where it now hovers between 3 and 4 percent,” the court reported in its fiscal year 2013 annual report.
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.
At the urging of the justices, the 2013 Nevada Legislature passed SJR14, which would, if approved, create the Court of Appeals. But it would not be just another layer of judicial bureaucracy between the 171 district court judges and the seven-member Supreme Court. It would be a push-down court.
All appeals would go straight to the Supreme Court, but about a third of all cases, estimated to be about 700 a year, would be sent to the three-justice appeals court — such as timely cases involving child custody and criminal convictions.
The Nevada Constitution requires mandatory review of all cases, but the appellate court would allow discretionary review. The few cases anticipated to be appealed from the intermediate court would have been thoroughly reviewed and the high court could make short work of those cases.
The 2013 Annual Report of the Nevada Judiciary indeed shows the state’s high court carrying a huge caseload. 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 of the seven Nevada justices. The American Bar Association recommends no more than 100 cases.
In a comment to the 2013 Legislature, Chief Justice Kris Pickering said, “In 2012, filings exceeded the dispositions and will likely continue to do so. Delayed dispositions and lack of precedent by which citizens can predict outcomes and regulate themselves are the result. This hurts not only citizens whose cases are delayed but Nevada’s nascent economic recovery as well.”
The cost of implementing the Court of Appeals is estimated to be $1.5 million a year to pay for the three judicial positions as well as staff — one executive legal assistant and two law clerks per judge. Since the Supreme Court is expected to spend less due to this intermediate court the total increased cost to taxpayers should be less than $1.5 million.
Nevadans are not getting the timely justice they deserve and are having to spin their wheels making the same legal arguments time and again. This time we believe the justices and lawyers supporting this measure have made a better case for an appellate court.
On the other hand, it might be cheaper to just change the state constitution so that the Supreme Court would hear only the most significant cases — discretionary review.
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 or should it amend the Constitution to make appeals discretionary? The justices argue the appeals would essentially be a discretionary review process.
A study conducted 30 years ago found that in only a couple of years after creating appeals courts the number of opinions written by the state court of last resort was nearly the same as before the creation of the appeals court.
The voters have only the option of yes or no to an appeals court.
(Thomas Mitchell is a longtime newspaper columnist and editorial. His blog is 4TH ST8.)
Featured image from Shutterstock.com
Tags: discretionary review, Kris Pickering, mandatory review, Nevada Court of Appeals,Nevada Supreme Court, Question 1, William Gladston
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