Appeal

A couple of decades ago—I think it was 1989—I arrived at work as a reporter one day at the Nevada Legislature and wandered into the Assembly hall about 20 minutes before the house was supposed to go into session. About a dozen members were seated at their desks doing paperwork. Another half-dozen members were on their feet, flitting from member to member. One was kneeling next to one of his seated colleagues, whispering anxiously in his ear. Standing on the east side of the hall, I wondered what the heck was happening. I hadn’t seen anything quite like this before.

Walking around to the press desk, I asked another reporter what this scene meant. He smirked and pointed out that all the assemblymembers who were moving around the hall were lawyers. “The court of appeals resolution got voted down yesterday,” he said.

So several prospective judges were on the floor feverishly lobbying their colleagues—something actual lobbyists were not permitted to do on the floor—to change their votes and approve a reconsideration motion during the morning session to bring back to life a constitutional amendment that, if approved by voters, would create a Nevada court of appeals. As more and more assemblymembers entered the hall, I shot footage of the lawyer/lawmakers scurrying from member to member and ran it on the air that night in Reno. It illustrated far more effectively than any narrative I could have composed how determined the state’s legal community was to get a state court of appeals.

Their lobbying worked. In a second vote, the measure was approved. Not that it mattered. In 1992, voters shot it down, 54.2 to 45.8 percent.

But the legal community remained convinced that a court of appeals was needed. Over the years, I learned that some attorneys were either indifferent or hostile to the idea, but they kept silent because there was enormous professional pressure to go along. A court of appeals is regarded in legal circles as a form of judicial “reform,” and most of those who support the notion also seem to oppose Nevada’s system of electing instead of appointing judges.

In this election year of 2014, the court of appeals is back. The 2011 and 2013 sessions of the Legislature again approved the measure and put it back on the ballot. The way it was drafted may not have been helpful to advocates of a court of appeals in getting voters to approve it this time.

Because the Nevada Supreme Court is the state's only appeals court, every case that is appealed from lower courts must be heard by the Supreme Court. Where the U.S. Supreme Court can turn down cases, the Nevada court cannot. Creation of an appeals court would cull some of those appeals from the Supreme Court workload.

At the 2013 Nevada Legislature, Nevada Supreme Court Justice Kris Pickering told the Assembly Judiciary Committee, “You are familiar with the United States Supreme Court and how excited people get when they … take a case, look at it, hear arguments, and decide it. … We have no luxury of choice. Whatever gets filed in terms of an appeal from a district court comes straight to us and can range all the way from a driver’s license revocation to a death penalty case.”

A recent report by the Supreme Court reads in part, “It [the court of appeals] would consist of three judges sitting in the Regional Justice Center in Las Vegas, while also hearing cases in Carson City. The plan is to use a ’push down’ model. All appeals would continue to be filed with the Supreme Court clerk’s office. By rule, approximately one-third of the cases currently heard by the Supreme Court would be assigned to the court of appeals. This proposed structure avoids additional judicial bureaucracy. Most of the expected 700 cases per year assigned to the Nevada Court of Appeals would end there, as appeals from the Court of Appeals to the Supreme Court would become discretionary rather than mandatory. This model would also utilize existing clerical and legal staff. …

“If approved by voters, the projected [cost] of implementing the Court of Appeals is $1,497,000. This would pay for the three judicial positions as well as chambers staff, to consist of one executive legal assistant and two law clerks per judge. Based on budget savings by the Nevada Supreme Court, the actual new cost should be much less.”

The ballot measure, if approved, would also enhance the dominance of the Nevada Supreme Court over the state judicial system. The Nevada Supreme Court chief justice would appoint the chief judge of the court of appeals. (On the Supreme Court, the title of chief justice is passed around by rotation.) And the Supreme Court will set up a system of the appeals court judges doing time hearing cases in state district courts.

There are also other political machinations involved in the measure.

Significantly, the public will not be able to elect the first members of the proposed court. The first three judges will be appointed by the governor from choices nominated by the Judicial Selection Commission and will then go into the first election with the advantage of incumbency. The language of the ballot measure goes to considerable length to assure that this will happen. Even if a governor wanted to leave the choice to the voters and declined to appoint, that governor’s appointment power would then be suspended. He or she would be unable to make any appointments to any other public posts until first filling the appeals court seats. And to guarantee the incumbency advantage, if any governor tried to appoint anyone on the condition that the appointee not run in the subsequent election, the ballot measure overrides that—“an initial judge may succeed himself.”

The number of judges on the court of appeals must number at least three. After that the legislature is empowered to create as many additional seats as it chooses.

Winning over the public in the 2014 election, said political scientist Fred Lokken, is “a large undertaking, but it’s a public education element that’s needed to get it passed. I would guess that 90 percent do not understand the issue. In public discussions we never focus on the judiciary. Most people’s view of the judiciary is formed by the federal model, and at the state level it varies from state to state. On creating a court of appeals, they probably have no opinion or just want to know why.”

He said there may be one advantage for the advocates of a court of appeals.

“Since most people come to Nevada from other states, if they know anything about the judicial structure at all, because they come from states with appeals courts, there’s a good chance they would assume that Nevada needs one.”

The Nevada legal community will have to pay for the campaign, he said. Many ballot measures attract money from out of state, but “marijuana got more funding from out of state than this measure ever would.” This is not a measure that many contributors other than lawyers would invest in.

The details of the ballot measure and the structure of the proposed court will be only one aspect of voters' consideration of the ballot measure. The public image of the judiciary is another. Whether merited or not, bad publicity for Nevada's court system will reflect on the ballot measure.

Six years ago, in announcing rules opening civil case court records to the public, Nevada Chief Justice William Maupin said in a prepared statement, “This year the Nevada Supreme Court has undertaken a number of important initiatives designed to improve the state’s judicial system. This particular initiative underscores the Court’s belief in open government and our commitment to preserve the public nature of the business of the judicial branch, including its records.”

But late this year, at a time when the state’s legal establishment was looking at gearing up for the 2014 campaign to win voter approval of the appeals court, the Court closed off public access to the records of a mediation program for foreclosure victims that it runs, and the Center for Public Integrity (CPI) in D.C. gave Nevada’s court system an F grade for its financial disclosure system.

“After the Los Angeles Times ran a damning three-part series in 2006 that found multiple cases in which Nevada judges awarded lucrative judgments to friends and former clients, the state formed a commission to reform the judiciary,” CPI reported. “But today the financial disclosures are less thorough than they were three years ago.”

CPI also named some specific instances of activities by the justices it considers questionable. For example, “In 2012, Justice Ron Parraguirre reported receiving a $250 gift from Be-Be Adams related to a Juvenile Diabetes Research gala,” CPI noted. “Adams is a registered lobbyist for Barrick Gold of North America. Less than two months later, the court received a case that is still pending, involving one of the company’s mines.”

CPI quoted Parraguirre aide Roxanne Doyle, who said, “That information was disclosed pursuant to the rules. It has no effect on his rulings.”

Of course, short of crawling inside Parraguirre’s brain, Doyle has no way of knowing what did or did not have an impact on his rulings. Moreover, the public is put in the position of taking Parraguirre’s word for it, something voters may want to decide for themselves.

In addition, when Nevada justices do take themselves off cases, they do not necessarily explain the reasons. No law requires them to, but nothing prevents them from going further than the law requires, either, especially given the language approved by the Court itself in the state’s code of judicial conduct. It calls upon judges to “aspire at all times to conduct that ensures the greatest possible public confidence in their independence, impartiality, integrity, and competence.”

In the case of the mediation records, the Nevada Legislature created the mediation program to help homeowners facing foreclosure. For some reason, the lawmakers chose to put the program under the Supreme Court, though the executive branch handles similar programs in other fields all the time. The Court then ran the program through its administrative office, which raises the question of whether the Court should ever have heard the appeal of the public records case. The Nevada Supreme Court, after all, was ruling on a lawsuit against a program the Nevada Supreme Court operates, suggesting a plain conflict of interest. A petition for rehearing has been filed, and will be decided by—the Nevada Supreme Court. (The court ruled against disclosure of the documents sought on the grounds that they are not public records within the meaning of state records statutes.)

Lokken said that the court ruling in a case against itself and the CPI concerns may not be a problem in the campaign because the Nevada public tolerates shoddy practices. “Even a lot of Nevada voters don’t see the wrongness of these things. They defend these practices, the buddy system that rules,” he said.

Besides, he said, it’s not just the judiciary.

“We can talk about how it is for the judiciary, but it’s across the board—Nevada has the worse ethics laws in the country. In this state, we defend connections—’Why shouldn’t we use connections?’ And we don’t see the public defending the stronger rules in other states.”

In discussing a campaign plan, Justice Pickering said, “There has been a PAC [political action committee] formed and it is composed of both Republicans and Democrats.” She said the campaign to support the ballot measure is already underway, that supporters have not waited for any benchmark like the first of the year to get efforts underway.

She described private polling that has been done as “heartening” and said the backers of the measure will raise the needed money for educating the public.

“I’ll speak to any group,” she said of her own role, and said her colleagues on the court are taking similar roles. “Every one of them has been out and spoken to different groups,” she said.

Listing a long line of divisions that operate in politics today, Pickering said, “None of those fissures are operating in the legal community or among its supporters. They’re all pulling together.”

A few days after the CPI report, that administrative office issued a report that argues that every Nevada Supreme Court justice handled an average of 333 cases during the last fiscal year. (This is a newer figure. A figure of 357 cases was used several months earlier at the 2013 Nevada Legislature.)

Even those kinds of statistics do not fully convey the work involved, Justice Pickering told state legislators a year ago.

“Nevada is at the head of the class with 357 cases per justice per year,” she said. “I submit that this number is misleading because we do not work singly. The Supreme Court cannot decide a case with fewer than three justices with some very narrow exceptions. That means, if each one of us is going to give the parties their due, at least three of us on every case are going to look at it, read the briefs, look at the record, read the critical case law and statutes, and give our opinions. We do not always agree. Sometimes we write dissents or concurrences separately. We do not necessarily agree with one another, and have a robust debate among the justices, which is how the Constitution sets it up. That work has to be done. So in reality, the 357 cases per justice is closer to roughly 3 cases per day, per justice, per year, every day, day in and day out, with Christmas off. It is daunting when you consider the depth of the caseloads.”

But those familiar with the Supreme Court say that while those figures may be misleading in the way Pickering describes, they are also misleading in another way. Each justice may handle more than 300 cases a year, they say, but that makes it sound like a more onerous burden than it actually is because many of those cases receive merely pro forma or perfunctory consideration. “A lot of these appeals deal with issues that have been adjudicated before this court dozens of times before,” said one attorney. “They can be handled quickly. Well, they are handled quickly.”

In addition, the Nevada Supreme Court has been enlarged from three to five and then to seven justices over the years to help keep up with the workload, and is now allowed to work in panels to further ease the burden.

There’s no question that the court carries a substantial workload. Voters will have to decide whether the merits require change, and few voters are familiar with judicial affairs. The 1992 margin of defeat of the court of appeals—more than 8 percent—was a pretty healthy margin, and it was cast in a time when public affairs was not as polarized and angry as it is now, so the Court and the legal community have a considerable education campaign ahead of them.

“Justice delayed is justice denied in many instances,” Justice Pickering said last year. “With this daunting caseload that we have, we still are doing the best we can to deal with the cases as they come in.”