A typical appellate court system has three courts: a lower court (district court), a court of appeals (the Nevada Court of Appeals or, in federal court, the Ninth Circuit Court of Appeals), and a supreme court (the Nevada Supreme Court or the United States Supreme Court). In a typical system, your appeal would go to the next court. If you appeal from district court, you go to the intermediate appellate court. If you appeal from the intermediate appellate court, you go to the supreme court and hope it accepts your appeal.
Nevada is not a typical appellate court system. To understand which court will hear your appeal, you need to know the following:
THE HISTORY OF NEVADA’S APPELLATE COURTS
Nevada did not get an intermediate court of appeals until January 2015. Prior to 2015, all appeals went directly to the Nevada Supreme Court. Because that was the only appellate court in Nevada, the Nevada Supreme Court heard every appeal. And because Nevadans were spoiled by having their supreme court hear all of their appeals, they were reluctant to vote for the creation of an intermediate appellate court.
As a result, the Nevada Supreme Court was buried in appeals with a massive back log of cases, and litigants were constantly complaining about how long an appeal took to process.
The solution was to create an intermediate appellate court that did not automatically hear every appeal, but that could hear those appeals which are inherently time sensitive. Thus, the Nevada Court of Appeals was born.
Despite the creation of the Court of Appeals, every appeal is still filed with the Nevada Supreme Court. The Supreme Court then “pushes down” certain categories of appeals to the Court of Appeals.
CASES THAT ARE PRESUMPTIVELY HEARD BY THE NEVADA COURT OF APPEALS:
Under NRAP 17(b), the categories of appeals that are presumptively assigned to the Court of Appeals are:
- Criminal appeals in criminal cases that do not involve the death penalty, or conviction of a category A or B felony unless the challenge is to the sufficiency of the evidence or the length of the sentence.
- Appeals from judgments in torts cases where the amount of the judgment is less than $250,000 (this does not include attorney fees and costs);
- Appeals from judgments in contract cases where the amount at issue is less than $75,000;
- Appeals from “postjudgment” orders in civil cases (i.e., attorney fees, new trials, motions to amend the judgment, etc.)
- Appeals from cases involving statutory liens under NRS Chapter 108 (i.e., mechanics’ liens and other similar liens);
- Appeals from administrative agency decisions, excluding decisions by Nevada’s taxing and water agencies, and/or the public utilities commission.
- Family law appeals, except for proceedings for termination of parental rights or proceedings under NRS Chapter 432B;
- Interlocutory appeals on motions for change of venue;
- Interlocutory appeals from the grant or denial of an injunction;
- Writ petitions challenging discovery orders or motions in limine;
- Appeals from probate court (trust and estate litigation) if the estate or trust has less than $5,430,000 in value; and
- Appeals from the foreclosure mediation program.
There are certain benefits to having a case presumptively assigned to the Court of Appeals. For example, the Court of Appeals’ case load is slightly less than the Nevada Supreme Court’s, which means that your appeal may be resolved faster.
Furthermore, assignment to the Court of Appeals will not unduly delay the litigation. An assignment to the Court of Appeals does not mean that you or your opposing party automatically gets a second appeal to the Nevada Supreme Court. Any appeal to the Nevada Supreme Court from the Court of Appeals will only be accepted on a petition filed under NRAP 40B, and the acceptance of these appeals is purely discretionary with the Nevada Supreme Court.
WHAT CASES ARE PRESUMPTIVELY HEARD BY THE NEVADA SUPREME COURT
Under NRAP 17(a), the Nevada Supreme Court presumptively hears the following cases:
- Cases involving the death penalty;
- Cases governing ballot or election questions;
- Cases involving judicial discipline.
- Cases involving attorney admission and discipline;
- Cases involving approval of prepaid legal service plans;
- Questions of law certified by a federal court under NRAP 5;
- Appeals from Nevada’s tax and water agencies, and the public utilities commission;
- Family law appeals involving termination of parental rights or that arise under NRS Chapter 432B;
- Appeals that raise an issue of first impression (and particularly, those raising issues of first impression regarding a constitutional question)
- Appeals that raise an issue of statement public importance;
- Appeals that raise an issue in which there is a split of authority between published decisions coming out of two courts (i.e., state and federal), or the Court of Appeals and the Nevada Supreme Court.
The Nevada Supreme Court may also retain cases which are not presumptively assigned to the Court of Appeals, even if these appeals are not presumptively retained by the Nevada Supreme Court. Did that confuse you? If your appeal doesn’t fall within any of the categories contained in NRAP 17(a)-(b), there is a chance it will remain with the Nevada Supreme Court. Remember, however, that the assignment of cases is discretionary and that discretion rests with the Nevada Supreme Court. Once the Nevada Supreme Court assigns a case to the Court of Appeals, you cannot seek re-assignment to the Nevada Supreme Court. NRAP 17(d).
When you file your brief or writ petition, you must include a NRAP 17(d) routing statement that identifies the court you believe should hear the appeal. In the statement, you must include whether the appeal falls within cases presumptively assigned to either court under NRAP 17(a)-(b). If your case involves an issue of first impression, an issue of statewide public importance, or seeks a resolution to a split of authority, you should identify that in your NRAP 17 routing statement. The Nevada Supreme Court is not omniscient. They cannot be expected to know the full landscape of the law if litigants do not inform them of the need for a decision on certain issues.
Remember, as well, that even if your case is presumptively retained by the Nevada Supreme Court, you can always request assignment to the Court of Appeals in your NRAP 17 routing statement.
If your case has been assigned to the Court of Appeals, you will receive notification from the Nevada Supreme Court under NRAP 17(e).
If all this confuses you, just remember this one thing: Your appeal will go up, and someone in a robe is probably going to decide it.