2013 State of the Judiciary Message

I.  Introduction

Governor Sandoval, Madam Speaker, Mr. President, distinguished members of the Legislature, constitutional officers, honored guests.

Thank you for giving me this opportunity to speak to you on behalf of the Nevada judiciary.

First, let me introduce my colleagues on the Supreme Court: Associate Chief Justice Mark Gibbons, Justice James Hardesty, Justice Michael Douglas, and Justice Nancy Saitta.  Justice Parraguirre is in Las Vegas attending to a family medical emergency; and Justice Cherry is in San Francisco participating in an indigent defense panel.  They asked that I send their regards, and regrets that they could not be here in person.

I would also like to introduce the Clerk of the Supreme Court, Tracie Lindeman; and the Director of the Administrative Office of the Courts, Robin Sweet.

I count myself privileged to speak on their behalf.  I am also privileged to speak on behalf of the 82 district court judges, 67 justices of the peace, 30 municipal court judges and the nearly 2,000 judicial branch employees who make up our Nevada court system.  Together, the judicial branch officers and employees work to provide a fair and safe place for resolving family, criminal, civil, and juvenile disputes according to the rule of law.  Every day, we strive to fulfill our constitutional obligation to provide timely access to justice; to resolve disputes fairly, impartially, efficiently, and as quickly as budgets and caseloads permit; and to preserve community welfare and safety.  I am proud to serve with these dedicated public servants and I thank them for their commitment to the administration of justice in Nevada.

II.  Overview

My task today is to report on the work of Nevada’s courts over the past biennium.  In doing so, I hope to lay the groundwork for a productive dialogue with you concerning the funding and legislation needed to continue to deliver adequate judicial services to the citizens we mutually serve.

I will discuss the work of the trial courts and then turn to that of the Supreme Court.  Finally, I will comment on SJR 14, its importance to Nevada, and outline the work it will take to make a court of appeals a reality in Nevada.

III.  Framing the Discussion: 2011 American Bar Association Task Force Report on Preservation of the Justice System and Related Resolutions

On August 8 and 9, 2011, the American Bar Association House of Delegates met to consider the report of the ABA Task Force on Preservation of the Justice System. Led by former solicitor general Theodore Olson and attorney David Boies, the Task Force reports that:

    . . . over the last few years, the courts of virtually every state have been forced into debilitating combinations of hiring freezes, pay cuts, . . . furloughs, staff layoffs, . . . and outright closures.  These reductions in court staff and related resources come at the very time when the demand for the judicial resolution of economic claims has increased dramatically. . . .

Since judicial budgets consist almost entirely of personnel costs, the courts do not have the ability simply to postpone expensive items to a more robust economic time; and thus reductions in court funding directly and immediately curtail meaningful access to the justice system.

When that happens, the costs to society are great.  The undue delay or outright denial of effective judicial action results not only in further harm to those who need prompt and fair resolution of their disputes, but also, in many instances, to more overcrowded prisons, threats to public safety, and harm to those, such as broken families, in greatest need of legal support.

These are the direct costs.  But there are indirect costs, too.  Indirect costs include the economic loss that follows when businesses and citizens are stymied by delays in resolving civil and family disputes.  With their assets tied up in litigation and their financial future uncertain, they cannot invest, hire, or put toward their resources to other, more productive uses.  Using the Los Angeles Superior Court system as an example, the report makes the point that court budget cuts and the consequent reduction in court services involve direct and indirect costs that far exceed the savings the cuts achieve– that they can be penny-wise and pound-foolish, in other words.

In response, the American Bar Association adopted resolutions that call for action on three fronts.  First, state and local legislative bodies must establish a stable, predictable and adequate funding system for their courts.  Second, tradition is not an excuse for waste; today’s courts must work smarter to ensure efficient delivery of court services and financial accountability.  Third, those who use, fund and serve the court system must seek out ways to better communicate to political decision-makers and the public what the court system does and why it matters. I hope by these remarks to contribute to that goal.

The ABA Task Force Report I am referring to is entitled “Crisis in the Courts.”  It is only 20 pages, yet is arguably the most significant study of our nation’s courts in years.  I commend it to you.

IV.  The Work of Nevada’s Courts

Broadly, the courts’ job is to resolve disputes.  What that means and why it matters enough to qualify the judiciary as one of the three, coequal branches of government is less clear.  Quoting former solicitor general Olson again, here is how he sums it up:

Every day, thousands and thousands of judges—jurists whose names we never hear, from our highest court to our most local tribunal—resolve controversies, render justice, and help keep the peace by providing a safe, reliable, efficient and honest dispute resolution process.  The pay is modest, the work is frequently quite challenging, and the outcome often controversial.  For every winner in these cases, there is a loser.  Many disputes are close calls, and the judge’s decision is bound to be unpopular with someone.

But in this country we accept the decisions of judges, even when we disagree on the merits, because the process itself is vastly more important than any individual decision.  Our courts are essential to an orderly, lawful society.  And a robust and productive economy depends upon a consistent, predictable, evenhanded, and respected rule of law.

A.  Our Nevada Trial Courts

Our judiciary in Nevada is small in relation to the number of cases filed annually and the population, both resident and visitor, that we serve.

Nevada has 82 district court judges.  These judges sit in 10 judicial districts throughout the state and decide civil, criminal, family, and juvenile disputes.  They also review arbitration awards, administrative law rulings, and petitions for judicial review arising out of Nevada’s foreclosure mediation program.

We have, in addition, 67 justice courts and 30 municipal courts. The justice courts determine whether felony and gross misdemeanor cases have enough evidence to be bound over to district court for trial.  They also hear civil cases involving up to $10,000, small claims, summary evictions, requests for temporary protective orders, and many traffic matters.  The municipal courts hear matters that involve violation of city ordinances, including traffic violations within the municipality.

Nine individuals serve as both justices of the peace and municipal court judges.  Thus, Nevada has 88 justice and municipal court judges.  Added to our 82 district judges and 7 supreme court justices, we have 177 judges, total, trial and appellate, statewide.

The chief judges of Nevada’s two biggest judicial districts, Judge Jennifer Togliatti of the Eighth Judicial District Court (Clark County) and Judge David Hardy of the Second Judicial District Court (Washoe County) are here today, and I would ask that they stand and be recognized.  They, and we, appreciate the 2009 Legislature’s support in passing AB 64, which added 9 district judges in Clark County and 1 in Washoe County.  Elected in November 2010, the new judges took office in January 2011.  Their addition enabled the Eighth Judicial District Court in fiscal year 2012 to clear more cases (104,363) than were filed (94,740), reversing recent years’ trend backlogging trend.  In numerical terms, Clark County’s 104,000+ dispositions in FY 2012 amount to almost 20,000 more case dispositions than in FY 2011.

Statewide, in fiscal year 2012, Nevada’s district, justice, and municipal court judges disposed of almost 365,000 non-traffic matters.  This works out to 1000 non-traffic dispositions per calendar day, an extraordinary number given the small number of judicial officers and judicial branch employees we have.

I am not telling you something new when I say Nevada has been hit hard by the recession.  Demand for court services does not slacken in hard economic times; it intensifies.  The changing composition of our trial courts’ caseloads shows this clearly.  In recent years, increasing numbers of Nevadans have turned to the courts for help with family relationships ruined by unemployment, foreclosures, and substance abuse; with landlord-tenant disputes; and with business disputes made the more urgent by financial need.  As an example, the number of family-related cases has steadily increased in the past 5 years.  In fiscal year 2012, family-related cases made up more than half—fully 55%—of the statewide district court docket.

Adding to the trial courts’ challenges, many citizens who need judicial services today cannot afford a lawyer.  At the same time, rising demand and cuts in legal service provider budgets have reduced the availability of free legal help.  This leaves citizens to forego access to the courts or to proceed on a pro se, or self-represented, basis.  When parties represent themselves, judges and their staffs must devote additional time to provide the additional guidance a lawyer would--to the extent they can without compromising their role as unbiased decision-makers.

Our trial courts are funded both locally and at the state level.  Decreased funding, reduced workforces, mandatory furloughs, and the changing composition of our trial courts’ caseload has forced our trial courts to do more with less than ever before.

Our Nevada trial courts have risen to these challenges through resilience, innovation, and openness to change.  This was brought home to me by an exchange I had with the Nevada District Judges Association President, Chief Judge Hardy, whom I introduced a moment ago.  He submits that the financial challenges of recent years have created opportunities for improvement.  In his words:

We who serve in the trenches of justice are constantly innovating to realize better results for the citizens we serve.  We are experimenting with calendar efficiencies, technological enhancements, specialized dockets, and alternative dispute resolution.  [Nevada’s trial court] judges are responding to the changing times by changing the way we do business.

Let me share a few, among many, examples:

• In Clark County, a telecourt program has been put in place so mental health court proceedings can be conducted remotely by video link.  Two hospitals in Clark County now have virtual courtrooms, allowing the proceeding to take place by audio-visual transmission rather than face-to-face court appearance.  In many cases, this eliminates the need to transport mental health patients, which can be logistically challenging, costly, and potentially dangerous.
• Another example: Nevada’s specialty courts.  Throughout the state, Nevada’s trial courts have been pioneers in the effective use of specialty courts.  These courts focus on the root causes of certain kinds of crime—drug and alcohol addiction and mental illness—and work to rehabilitate, rather than incarcerate, chronic offenders.  Often, these programs involve multi-agency collaboration.  Not all participants succeed, but for those who do succeed, a miracle occurs, by which they come to claim their place as productive members of society.
• Take the case of Adam A.  He came into the Clark County DUI Court’s serious offender program in October of 2009.  He had to relocate from Ohio to participate to receive the benefit of his plea bargain.  He came to Las Vegas with the clothes on his back and a wallet with a few dollars in it.  He found a place to live in a sober living house.  Days later, his wallet was stolen.  He started the program nonetheless and was able to get a job as food server.  He earned enough to pay his living expenses and for public transportation to get to counseling, support group meetings, and court appearances.  Adam worked hard in treatment and within a year and a half, he got a job in sales, where he flourished.  He became one of the top salesmen in his company, earning an income of more than six figures a year.  District Judge Linda Bell who worked with Adam A. writes, “Today Adam has successfully completed the program and is happy, healthy, and sober.  He is a productive member of society and . . . grateful for the program, the discipline it takes to adhere to the requirements, and the opportunity to truly invest in his life and learn from his wrong choices.”
• If you have not attended a drug, youthful offender, or habitual offender court graduation ceremony, I urge you to do so—the hard work, joy and pride of accomplishment are radiant and overwhelming.  And these programs do not just benefit the participants and their families; they benefit the counties and taxpayers by reducing the prison population and decreasing recidivism rates.
• There have been an unusually high number of trial court vacancies the past biennium owing to death or mid-term retirements.  We have kept the dockets moving thanks to the 22 senior or retired judges who have stepped up to help.  In 2012 the senior judges provided the equivalent coverage of 8 full time district judges, expediting cases that otherwise would have languished.  Our senior judges have also done a yeoman’s job covering the rural specialty courts and conducting settlement conferences.  As an example, in December of 2011 senior judges engaged in a marathon settlement conference at the Family Court in Clark County.  Of the 94 cases heard, 71 were settled, a 75% success rate.

B.  The Supreme Court

Now I would like to talk to you about the Nevada Supreme Court.  As you know, the Nevada Constitution provides for a single appellate court: the Supreme Court.  Because parties have a right to appellate review, the Supreme Court must—is constitutionally obligated to—hear and decide all direct appeals from all civil and criminal judgments entered by our 82 district court judges.  We also consider writs, both original and appellate; administer the Nevada judicial system through the Administrative Office of the Courts (AOC); supervise the Supreme Court Law Library, one of only 3 significant law libraries in the state; oversee the licensure and discipline of lawyers; provide appellate review of judicial discipline; and discharge statutorily mandated obligations—a recent example: writing the rules for the foreclosure mediation program, and setting up FMP operations under the AOC’s auspices, as directed by the 2009 Legislature.

Historically, it took a trip to the courthouse to review a court record or hear an oral argument.  Information technology has changed that, resulting in much greater public access and visibility.  Oral arguments are webcast live on the Supreme Court’s website, so anyone with access to a computer can see and hear them in real time, as they occur.  The podcasts are stored on the website so they can be reviewed later, conveniently, or copied to DVD.

The court has gone to electronic filing.  Each justice and staff member has immediate access to the briefs and appellate record through the Court’s CTRACK system.  We also have a public portal, through which the public can access the briefs, motions, orders, and opinions in any given case.  No longer do copies of these materials have to be obtained at $1 a page from the clerk of the court, who in turn had to devote staff to copying.  They are available on line, and can be downloaded and printed for free.

While technology has facilitated the work of the court, it has not changed it, fundamentally.  Our court, as Nevada’s only appellate court, hears and decides three main types of cases.  These case types are the same as those Justice Cardozo wrote about in 1921, describing his work on the New York Court of Appeals.    First, there are the pure error correction cases; appeals that, in Cardozo’s words, “could not, with semblance of reason, be decided in any way but one.  The law and its application are plain.”  Second, also a type of error-correction case, are those in which, “the rule of law is certain and the application alone doubtful.” In these cases, the “record must be dissected, the narratives of witnesses, more or less incoherent and unintelligible, must be analyzed. . . .  Often these cases . . . provoke differences of opinion among judges.  Jurisprudence remains untouched, however, regardless of the outcome.”  Finally there are those cases “where a decision one way or the other, will count for the future, will advance or retard, sometimes much, sometimes little, the development of the law.”  It is this third category of cases that is the most demanding, where the matter calls for us to interpret unsettled issues of constitutional and statutory law and add to the body of decisional law with published dispositions.  These dispositions resolve the individual case but they also create precedent by which future disputes will be decided or avoided altogether.

The subject matter of our published dispositions is varied and often complex.  Consider, as examples, in the last biennium we have published opinions on water rights, tort law, gun rights under the Nevada Constitution and Second Amendment, state taxation, government finance, corporate governance, criminal law in both capital and non-capital cases, evidence, procedure, and election and ballot initiatives.

The Supreme Court’s caseload has increased year after year.  It took 112 years—from statehood on October 31, 1864, until August 12, 1977—for the first 10,000 cases to be filed in the Nevada Supreme Court.  Over the next 30 years, 40,000 more cases were filed, 10,000 of which were filed between 2002-2007.  The 60,000th case was filed on January 9, 2012.

In 2012 alone, 2,500 cases were filed in our court.  This works out to almost 365 cases per justice per year; since we sit in panels of 3 or 7, in reality that number is at least 3 times higher than that, working out to three cases per justice per day every day of the year. This is one of the highest, perhaps the highest, caseloads of mandatory-review cases per justice in the country.

The court is doing what it can to manage its caseload.  We have a mandatory settlement program for most civil appeals.  In many error correction cases, we utilize staff attorneys to present recommended dispositions to three-justice panels.  Despite these measures, the number of published dispositions, as a percentage of the total docket, has fallen steadily.  It is quicker to write a memorandum disposition briefly explaining to the parties why one side lost and one side won than to author a published opinion.  And yet, the backlog grows.  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.  In 2012 the U.S. Chamber of Commerce reported that more than two-thirds (70%) of the counsel and senior executives surveyed said that the quality of a state’s judicial system is an important factor in the fundamental decision of where to locate and do business.

Which brings me to SJR 14: If passed by you this session and approved by the voters in 2014, SJR 14 would amend the Nevada Constitution to provide for a court of appeals.  My colleague, Justice Hardesty, and I took great heart in the Senate Judiciary Committee unanimously approving this measure as its first order of business.  We thank the Committee and the Governor, whose office attended the Senate Judiciary hearing to express his wholehearted support.

The principal, perhaps only, argument I have heard against SJR 14 is that a similar ballot measure did not pass statewide in 2010.  To this criticism, however, I offer three responses.  First, regardless of criticism, it would be irresponsible for us not to report just how serious a problem the court’s growing caseload and backlog pose to individual litigants, small and large businesses, and the State as a whole.  Second, Nevada’s demographics are changing, as the poll released earlier this week by the Retail Association of Nevada shows.  Conducted by Glen Bolger, this poll shows that today’s Nevadans, by a margin of 48% to 42% favor amending the Constitution to provide for a court of appeals—in other words, that attitudes have changed.  Third, we can and must do a better job explaining the court of appeals to the voters—that it would speed up dispositions, not delay them, because the error-correction cases assigned to the court of appeals will stop there. And also, we need to acquaint voters with the push-down model the court of appeals would follow.  Under this model, cases would be filed centrally and either kept in the Supreme Court or pushed down to the court of appeals, depending on category.  As a result, there are no added personnel costs beyond the 3 court of appeals judges and their chambers staff.  Just as adding District Court judges helped expedite case resolution in Clark County, adding appellate judges will help expedite the appeals process.

As the Chair of the Senate Judiciary Committee said, the key to SJR 14’s success is “for us to get behind it once it is on the ballot and make sure there is a united voice explaining to the citizens of Nevada that this matter is critical.  Nevada is at a turning point where voters are starting to realize that we are no longer that little State we all grew up in.  We have to move into the 21st century, and SJR 14 will be a major part of that.”

V.  Conclusion

Standing before you this morning, with Lincoln’s portrait at my back, it is impossible not to feel the press of history, to imagine the footfalls of those who came before and who will come after us.  Next year marks Nevada’s 150th birthday, its sesquicentennial.  To put time in perspective, our Constitution was adopted, and Nevada’s judiciary established, just months before Lincoln was killed.  History will not long remember most, or perhaps even any, of us.  But it will judge us by the legacy we leave.  We in the judiciary appreciate the cooperation we enjoy with our legislative and executive branch partners and hope that, together, we make positive, lasting contributions to Nevada’s future.

Thank you and God speed.