In July 2019, eight state Senate Republicans filed a lawsuit against the Legislature challenging bills that they claimed were unconstitutionally passed without a two-thirds majority.
More than a year and a half later, those same state senators are preparing to return to the 2021 Legislature with the case still pending before the Nevada Supreme Court.
It’s a high-profile example of the roughly 1,500 to 2,000 cases pending at any given time in the high court’s backlog of unresolved cases, a product of Nevada’s universal right to appeal (meaning the court has to consider appeals from murder convictions to driver license revocations) and a gradual trend of more appeals each year.
But through the 2020 fiscal year, the court has taken significant steps to cut down its substantial and well-documented backlog of pending cases. According to the Nevada Judiciary’s 2020 annual report, the court’s backlog of cases fell to 1,688 at the end of the fiscal year, the lowest level in the last five years and down from the more than 2,000 pending cases reported at the end of the 2019 fiscal year.
The 17 percent backlog reduction was aided in part by fewer cases being filed — 2,474 in the 2020 fiscal year, down from 2,982 filed in 2019. But Supreme Court Chief Justice Kristina Pickering said in an interview that the seven members of the high court and three members of the Court of Appeals had combined to dispose (meaning resolve through opinion or order) more than 2,800 cases throughout the fiscal year, likely the second-highest total ever in a single year.
“Trying to rewrite rules and orders, and adapt existing rules and orders for this new environment that has taken probably some case processing time,” she said. “That's part of why I am so proud of my colleagues and our staff with the 2,824 dispositions. That's an incredibly strong number given the demands and challenges we face.”
Of those 2,824 resolved cases, the seven-member court disposed of 1,740 cases, while the three-member Court of Appeals disposed of 1,084 cases. The Court of Appeals was created through a ballot question approved in 2014, in part because of arguments that it would help alleviate the backlog of cases facing Supreme Court Justices. The appeals court operates on a “push-down” model, where all cases are first screened by the Supreme Court and then transferred to the appellate court if warranted.
Nevada’s Supreme Court has grown in tandem with the state’s population growth over the past century; the court originally had three justices, but increased to five in 1967 and to seven in 1999. But the court’s number of filed cases also has increased exponentially; it took 113 years for the first 10,000 cases to be filed with the court (1864 to 1977), another 30 years to reach 40,000 cases (2007) and it hit a milestone of 80,000 cases by 2019.
Pickering said that creation of the Court of Appeals had been a “lifesaver” and “absolutely essential” to helping deal with the backlog, and had freed up the Supreme Court to have more time to devote to complex litigation.
“Not all cases are created equal, some are less weighty than others,” she said. “Some can be weighty, but they all don't have equal lifespans. Having the Court of Appeals take a significant share of the case numerically, I think gives the Supreme Court more time to devote to harder, or more time consuming cases.”
The seven-member court has implemented several policies designed to cut down wait times between initial appeals and decisions. Justices split into a pair of three-member panels (a practice that began in 1999) to dispose of cases more rapidly, and have more recently decided cases through orders, not written opinions (which are typically longer and deal with cases setting legal precedent).
Pickering said that the high court also has more recently adopted a change setting a 30-day maximum time limit for cases in the screening process (essentially a corralling process where the cases have been briefed but the court needs to decide whether to assign them to a three-justice panel or the full court, or kick it down to the Court of Appeals).
“That’s dead time in the case,” she said of long screening times. “If the case is fully briefed and it's in screening, we want to get it through to the court that's going to decide it, or the panel is going to decide it, as quickly as you can, because nothing's happening when it's sitting in screening.”
As with most government institutions, the state Supreme Court has been affected by the COVID-19 pandemic. Pickering said that the entirety of the state’s judicial system faced a “down month of two” during the first weeks and months of the pandemic, and that some of the time that would have gone to deciding cases was instead devoted to the administrative challenges of shifting court operations online.
She said the seven justices — who are split between Carson City and Las Vegas — had largely shifted to videoconferencing discussions and deliberations in their normal day-to-day work.
“The casual conversation in the hallway, the face to face meeting with all seven present doesn't happen,” she said. “But I have to say that everybody has been really adaptable and worked as hard as they can.”
Pickering said that the full effect of the COVID-19 pandemic on the volume of court filings won’t be seen until next year’s annual report on the judiciary, given that reports cover fiscal years and thus only include the first few months of the pandemic (the court’s fiscal year ends in June). Nevada is tied with Alaska and North Dakota for the smallest number of justices (3) of any of the 41 states with intermediate appellate courts.
Outgoing Supreme Court Justice Mark Gibbons said in an interview last year that the court was considering asking the Legislature for the funding to expand the Court of Appeals, but Pickering said that request was off the table given the state’s ongoing financial difficulties in the midst of the COVID-19 pandemic.