One of the most common questions I am asked as an appellate attorney is “which judge or justice is going to hear my appeal?” The only answer that question is “I don’t know.” This post takes a look at how the Nevada Supreme Court and the Ninth Circuit operate internally in choosing the panels of judges or justices who are going to hear your case.
COURT COMPOSITIONS IN GENERAL
In both Nevada and the Ninth Circuit, the decisions are written by one judge or justice, but are actually determined by at least three judges or justices.
The Nevada Supreme Court consists of 7 justices. The Ninth Circuit currently has 49 judges, 29 of whom are active. Both the Nevada Supreme Court and the Ninth Circuit work on a panel system. In a panel system, the majority of cases are assigned to a panel consisting of three justices (Nevada) or judges (Ninth Circuit). One of those judges or justices will ultimately be responsible for writing the order or opinion, but all three will decide how the case should be resolved.
PANEL VERSUS EN BANC
In Nevada, a hearing before the en banc court means that all seven justices participate in the decision of the case. A case is automatically sent to the entire en banc court if it raises substantial precedential, constitutional or public policy issues. Cases are also sent to the en banc court if en banc consideration is necessary to secure or maintain uniformity of the court’s decisions. A case may also reach the en banc court through a request for en banc reconsideration under NRAP 40A.
In contrast, a case is assigned to a panel where the legal issues have either limited precedential value, or will not impact any others beyond the litigants.
In the Ninth Circuit, there are 29 active judges. An en banc hearing in the Ninth Circuit only consists of 11 judges, one of whom must be the chief judge, and ten of whom must be active judges.
En banc determinations are not favored in the Ninth Circuit. FRAP 35(a). Cases only proceed to an en banc court if they, as in Nevada, involve “a question of exceptional importance” or “en banc consideration is necessary to secure or maintain uniformity of the court’s decisions.” Id. Otherwise, the case is presumptively assigned to a panel.
HOW THE JUDGES AND JUSTICES ARE CHOSEN IN PANEL CASES
Technically, the selection of who resolves your case is random. Seasoned appellate practitioners, however, will tell you that the selection of who ultimately determines your case is not as random as it seems. Whether that is true is not something any court has ever confirmed.
In Nevada, the Chief Justice does not reside on any panel. Instead, the remaining six justices are divided to sit on the panels, and the Chief Justice will only reside on a panel if another justice is disqualified or recuses themselves. There are two panels – a Southern panel for cases originating from Clark County, and a Northern Panel for cases originating from anywhere else in the state. The appointment of a particular justice to a panel is random, and switches every 12 months. Each new panel cannot mirror the prior panel’s compositions, meaning that each justice has to eventually sit on a panel with every other justice. If a justice is repeatedly assigned to the same panel (North or South) for more than four years, the justice can choose to be on the other panel.
Panel membership rotates on January 1 every year. This does not, however, mean that your case will bounce around a bunch of justices. If your case has reached a dispositional phase, meaning that the justices have heard oral argument, have deliberated or have otherwise considered the merits of your case, those three justices will be the three justices who ultimately determine your case even if they are no longer serving on a panel together. If your case is in its infancy come January 1, there is a possibility that your panel will change.
In the Ninth Circuit, your case is assigned to three judges who are randomly chosen. Like Nevada’s panel system, the three judge panels are not supposed to mirror prior panels, so that each judge eventually sits on a panel with every other judge. Unlike Nevada’s panel system, the three judge panels are chosen for limited time periods, meaning your case will be heard by a panel sitting in one location on “XYZ dates” only. The next week, those judges may be on different panels. Once your case is assigned to a panel, that is the panel which will determine your case.
HOW TO GET THE BEST OUTCOME FOR YOUR CLIENT
Although lawyers would like to, we cannot cheat the panel system. Do not place the outcome of your client’s case on who you think might decide the case. The only way to guarantee the best outcome for your client is to do good work. Write a good brief. Be prepared for your argument. Protect your record, and know what is and is not present in that record. And, above all, follow the rules of practice of the court in front of which you are appearing.