Nevada: Court data uniformity? Bill would require all courts report data to Supreme Court same way

One of the aspects many find surprising about state court systems is the level of decentralization. In many states, local limited jurisdiction courts are effectively creatures of locality and administered as such. One area this comes up is in reporting of case level data: how many cases were filed and disposed in the State of X in year Y? Tennessee in the last legislative session, for example, had to amend the existing law as to how a “case” is counted and defined for court statistical purposes to make things more uniform. It now appears Nevada may try a similar approach.

The Nevada Assembly Committee on Judiciary,  on behalf of the Nevada Supreme Court, has now prefiled AB 69, a bill that revises two dozen parts of the law related to the judicial branch. One particular aspect that has a great bearing on court administration is in uniformity of case reporting and data.

From the synopsis

Existing law requires district courts, justice courts and municipal courts to submit to the Court Administrator a report of statistical information concerning the workload of those courts. (NRS 3.243, 4.175, 5.045) Existing law further requires the clerk of a district court to obtain and file certain information concerning the nature of each criminal and civil case filed with the court. (NRS 3.275)

Sections 3, 4, 8 and 10 of this bill amend these provisions to require district courts, justice courts and municipal courts to submit a report of statistical information to the Court Administrator pursuant to the uniform system for collecting and compiling statistical information concerning the State Court System which is prescribed by the Supreme Court.

AB 69 has been prefiled in the Assembly Committee on Judiciary.

Election 2014 winners and what they (could) mean for 2015 legislation

A look at the winners in last night’s election may help in predicting what will come out of the 2015 legislative sessions

Alabama Amendment 1 bans state courts from using international or foreign law. This is the 10th such ban in states, however the total number of efforts and their advancement in committee in the 2013 and 2014 sessions have diminished. It is unclear even if any similar bans are introduced whether they’ll make it out of committee in 2015.

Alabama Shelby County Local Amendment 1 requires the Judge of the Probate Court for the county must be an attorney. While similar bills have been proposed to require particular counties or all the judges in a state be attorneys (most states allow for at least some non-attorney judges) they often come to the problem that in many more rural counties there simply aren’t enough attorneys in the county to allow for such a requirement to work.

Arkansas Issue 3 provides (among other things) for the creation of salary commission to determine judicial and other salaries in the state. This commission stands alone among all others in the nation in that its determinations are not only binding (i.e. there is no need for additional legislative approval) they are unable to be overridden by the legislature as well. When similar proposals were introduced in Connecticut and New York, the legislatures balked at giving complete control over elected officials salaries without the legislature itself somehow being involved in either implementation/appropriation or even simply allowing them to override.

Hawaii Amendment 1 requires the state’s judicial selection commission release the names submitted to the governor or chief justice (for District Court seats) for selection to judicial office. Of the 18 states with such systems, now only 3 keep those names a secret after submission: Connecticut, South Dakota, and Vermont. It is unclear whether there will be any effort in these three states to move in Hawaii’s direction.

Nevada Question 1 authorizes the creation of intermediate appellate court (court of appeals). The implementing legislation has already previously been approved so the court will come into existence come January 1, 2015. The focus now turns to the 9 states without an intermediate appellate court, in particular West Virginia whose legislature has debated the creation of such a court for the better part of two decades.

New Mexico Amendment 3 now allows the legislature to set the deadline for judges to file paperwork seeking reelection as something other than the date for primary candidates. As I noted, New Mexico was the only state that required judges seeking retention to file so long prior to the date of election. Since this doesn’t apply to any other state, it isn’t clear this will have any impact in 2015.

Oregon Measure 87 now allows state judges to teach part time at public colleges/universities without running afoul of the state constitution’s no-dual-office or no-dual-salary provisions. Several other states have similar items, and there was a similar but not identical effort in Iowa several years ago (HB 2482 of 2010), but it isn’t clear if this approval will have an impact.

Tennessee Amendment 2 creates an appoint-confirm-retention election method for state’s appellate judges. This, coupled with a similar move away from merit selection/commission based appointments for the Kansas Court of Appeals in 2013 and pressure in other states to end these systems in favor of giving governors and legislators some/more/complete power with respect to judicial appointments is almost certain to reappear in the coming years.

Election 2014 Final Results: The winners and losers

The votes are in and the results from last night’s elections are below. Analysis of the results to follow later today.

Winners

  • Alabama Amendment 1 (72%): Prohibit state courts from using international or foreign law; prohibit state courts from giving full faith and credit to decisions from other states that reference international or foreign law
  • Alabama Shelby County Local Amendment 1 (79%): Judge of the Probate Court must be an attorney
  • Arkansas Issue 3 (53%): Creation of salary commission to determine judicial and other salaries
  • Hawaii Amendment 1 (82%): Require names submitted to governor for selection to judicial office be released
  • Nevada Question 1 (54%): Creation of intermediate appellate court (court of appeals)
  • New Mexico Amendment 3 (62%): Allow legislature to set deadline for judges to file paperwork seeking reelection
  • Oregon Measure 87 (57%) : Allow state judges to teach part time at public colleges/universities
  • Tennessee Amendment 2 (66%): Appoint-confirm-retention election method for state’s appellate judges

Losers

  • Florida Amendment 3 (48%): Allow governor to prospectively appoint judges to appellate courts — when the judge’s term is about to expire — before the vacancy occurs
  • Hawaii Amendment 3 (22%): Increase mandatory judicial retirement age from 70 to 80
  • Louisiana Amendment 5 (42%): Eliminate mandatory judicial retirement age

Nevada Question 1: Arguments in favor

Nevada’s official voters guide provides proponents and opponents of the creation of an intermediate appellate court for Nevada space for their arguments. Today I’ll be providing the official arguments in favor, tomorrow those opposed.

Details below the fold.

Continue reading Nevada Question 1: Arguments in favor

Nevada Question 1: Who sets the jurisdiction of the court of appeals?

I mentioned previously that this is the fourth time Nevada voters will decide on whether to create an intermediate appellate court/court of appeals. The prior instances, however, differed from the 2014 version in a particular way.

Question 7 of 1980 and Question 6 of 1992 both specified that the jurisdiction of the Court of Appeals (i.e. the cases it would hear) would be set by the legislature.

Question 7 of 1980: The legislature shall apportion this jurisdiction between them by law, and shall provide for the review by the supreme court, where appropriate, of appeals decided by the court of appeals.

Question 6 of 1992: The legislature shall fix the jurisdiction of the court of appeals and provide for the review, where appropriate, of appeals decided by the court of appeals.

Question 2 of 2010 and this year’s Question 1 both allow the Supreme Court the discretion to decide on the Court of Appeal’s jurisdiction.

Question 2 of 2010: If the Legislature establishes a court of appeals, the Supreme Court shall fix the jurisdiction of the court of appeals and provide for the review, where appropriate, of appeals decided by the court of appeals.

Question 1 of 2014: The Supreme Court shall fix by rule the jurisdiction of the court of appeals and shall provide for the review, where appropriate, of appeals decided by the court of appeals

The practice of providing the court of last resort/supreme court the power to set the jurisdiction of the intermediate appellate court/court of appeals is not unheard of. Idaho, for example, uses what is referred to as a “deflector system” or a “pour over” system. Appeals are filed with the Idaho Supreme Court who may take them up, dismiss them, or “deflect” or “pour” them down for review by the Court of Appeals (Idaho Code 1-2406). Hawaii’s Intermediate Court of Appeals used this method from 1980 until 2006 when it switched to a system where the cases were filed directly with that court. A counterpoint would be Indiana’s Tax Court, an intermediate appellate court with a very limited jurisdiction (tax cases) entirely set by statute (Ind. Code Ann. § 33-26-1-1).

Nevada Question 1: Why Nevada needs a constitutional amendment to get a court of appeals (and almost no other state does)

I noted in the data in this post that some intermediate appellate courts (IACs) derived their authority and existence from their state constitutions, while others rely on legislation alone. This boils down to a question of terminology in the state constitutions themselves. Thanks to what amounts to quirk in the text of the Nevada constitution, this means that it (and maybe South Dakota) stand alone in the need for a full blown constitutional amendment to get an IAC.

In the 40 out of 50 states that have an IAC, the authorizing/creating language in the state constitution takes on three forms:

1) IAC explicitly called for or created by the constitution

California’s intermediate appellate court(s) date back to Amendment 2 of 1904 creating 3 “district courts of appeal” in the state.

The Supreme Court, the District Courts of Appeal, the Superior Courts, and such other courts as the Legislature shall prescribe, shall be courts of record.

Today’s constitutional provision reads similarly.

The judicial power of this State is vested in the Supreme Court, courts of appeal, and superior courts, all of which are courts of record.

2) IAC creation specifically authorized by constitution, but legislature can decide to create

Arizona’s 1960 Proposition 101, also known as the “Modern Courts Amendment”, rewrote the state’s judicial article and included a provision for the possible creation of an IAC without the need by the legislature to resort to a new constitutional amendment.

The judicial power shall be vested in an integrated judicial department consisting of a supreme court, such intermediate appellate courts as may be provided by law, a superior court, such courts inferior to the superior court as may be provided by law, and justice courts.

In 1964 the legislature in fact created the court sitting as two divisions that began operating in 1965.

3) Legislature may create courts “inferior” to supreme court/court of last resort

Since gaining admission as a state in 1959 the Alaska constitution provided the authority to the legislature to create an IAC and assign its jurisdiction.

The judicial power of the State is vested in a supreme court, a superior court, and the courts established by the legislature. The jurisdiction of courts shall be prescribed by law.

It wasn’t until 1980, however, that the legislature passed a law to create that state’s Court of Appeals.

States with no IAC at present

As for the 10 states with no IAC, in 8 the legislature could if it wished make use of language similar to items 2) or 3) above to create such a court. This was done most recently in the creation in 1993 of Mississippi’s Court of Appeals (Art. 6, § 172 “The Legislature shall, from time to time, establish such other inferior courts as may be necessary, and abolish the same whenever deemed expedient.”)

Nevada and South Dakota stand alone in not having similar provisions allowing for the legislative creation of an IAC, necessitating a constitutional amendment in Nevada. There doesn’t appear to have been any effort in South Dakota to put forth a similar effort.

State by state breakdowns for the 10 states without an IAC below the fold.

Continue reading Nevada Question 1: Why Nevada needs a constitutional amendment to get a court of appeals (and almost no other state does)

Nevada Question 1: State will vote for fourth time on creation of intermediate appellate court – a look at prior efforts

Nevada’s Question 1 of 2014 marks the fourth time voters will be asked to amend the state’s constitution to create an intermediate appellate court/court of appeals.

In 1980 and 1992 voters rejected efforts to amend the constitution to create an intermediate appellate court (“The Judicial power of this State shall be is vested in a court system, comprising a Supreme Court, a Court of Appeals, District Courts…”)

The third attempt in 2010 (Question 2) would  have allowed but not required the creation of the court (“The Judicial power of this State shall be is vested in a court system, comprising a Supreme Court, a court of appeals, if established by the Legislature, District Courts…”)

The 2014 version returns back to the language in which the court of appeals is created (“The Judicial power of this State shall be is vested in a court system, comprising a Supreme Court, a court of appeals, District Courts…”)

All three efforts have failed roughly 47-53 (1980: 106,131 to 118,933; 1992: 213,407 to 252,950; 2010: 356,357 to 313,769).

All three elections effectively had the same arguments for and against. Proponents argued that the creation of the court would alleviate backlog in the Supreme Court and allow for faster disposition of appeals. Opponents argued a new court would cost taxpayers and add costs to litigation.

Nevada Question 1: What is an intermediate appellate court and what states have them?

State courts have, since the time of the American Revolution, always consisted of at least two forms of court. The first were trial courts, courts where lawsuits were generally filed and criminal cases prosecuted. The second were appellate courts, courts whose primary (or exclusive) function was to hear appeals from the trial courts. These were often called “courts of last resort” because, as the name implied, there was no higher state court to hear an appeal. That changed however particularly in the late 1800s as states began to see that their appellate judicial systems were unable to keep up with demand. One way to alleviate the burden was to give some trial courts the ability to hear appeals from lower courts; for example allowing a general jurisdiction court District Court to hear appeals from a limited jurisdiction City Court. Another way to cope was through the creation of intermediate appellate courts, usually called a “court of appeals.” This becomes confusing, given that states like Maryland and New York called their court of last resort the Court of Appeals, therefore the term intermediate appellate court or IAC is typically used in describing these courts

Presently 40 out of 50 states have an intermediate appellate court, with some states have multiple court types. For example, in Alabama there is a Court of Criminal Appeals and a Court of Civil Appeals. Moreover, many states geographically divide their IAC. In Missouri for example is divided into Western, Eastern, and Southern Divisions. In addition these courts may reflect their historical ties to the trial courts. For example in New Jersey judges are appointed to serve on the trial court (Superior Court) and then elevated to sit as the Appellate Division of the Superior Court.

Details derived from the National Center for State Court’s State Court Organization below the fold.
Continue reading Nevada Question 1: What is an intermediate appellate court and what states have them?

Nevada Question 1: Creation of an intermediate appellate court/Court of Appeals

This year for the fourth time Nevada voters will decide on whether or not to create an intermediate appellate court (IAC) called the Court of Appeals. This week I’ll be examining several aspects of what was known as SJR 14 and is now called Question 1 including IACs in general and Nevada’s effort(s) in particular.