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What Court Will Hear Your Appeal? An Overview of Nevada’s Appellate System

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).

ROUTING STATEMENTS

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.

The Costs of an Appeal: What You Have To Pay to Play

You probably know you have a right to an appeal, but do you know what that right costs?  Here’s a breakdown of the filing fees associated with appeals:

FEE TO APPEAL

To file an appeal, you have to pay a fee in the district court.  For appeals and cross-appeals to Nevada appellate courts, that fee is $250.  NRS 2.250.  For Ninth Circuit Appeals, the fee is $505.

If you wish to file an appeal with the United States Supreme Court, the fee to appeal is paid directly to the United States Supreme Court.  The cost to file a petition for a writ of certiorari, jurisdictional statement, or original action is $300. Sup. Ct. R. 38.

FEES FOR OTHER PROCEEDINGS

Remember, an appeal is not the only way that you can seek appellate review.  To file a petition for an extraordinary writ to the Nevada Supreme Court and/or Nevada Court of Appeals, you must pay a fee of $250 to the district court.  NRS 2.250.  However, there is no fee for criminal proceedings and habeas corpus petitions.

To file a petition for review or a petition for a writ of mandamus in the Ninth Circuit, you must pay a fee of $500.

To file an original action in the United States Supreme Court, you must pay a fee of $300.

PETITIONS FOR REHEARING OR EN BANC RECONSIDERATION 

In Nevada, following a decision by the appellate court, you can  seek  rehearing or en banc reconsideration.  The cost to file a petition for rehearing is $150.  NRS 2.250.

You can also file a petition for rehearing or a motion for leave to seek rehearing in the United States Supreme Court.  The costs for these rehearing petitions and/or motions is $200. Sup. Ct. R. 38.

MISCELLANEOUS COSTS 

There are miscellaneous costs which the appellate court may charge you of which you should be aware.  These include (1) copies, (2) certified copies, (3) duplication of audio files (i.e., oral argument), and (4) transcript examination fees.  These costs are generally minimal.  (For example, copies in both Nevada and the Ninth Circuit are 50 cents per page).

Both the Ninth Circuit and the United States Supreme Court will also charge you fees for returned checks, so make sure your bank account is current.

WHEN COSTS ARE WAIVED 

In certain types of appeals, costs are waived.  For example, the United States Supreme Court does not charge the above costs for appeals in: (1) Veteran’s re-employment cases; (2) seamen’s cases; and (3) cases initiated by persons who have been accused by the Court of Appeals for the Armed Forces.  Sup. Ct. R. 40.1; Sup. Ct. R. 40.2; and Sup. Ct. R. 40.3.

The most common appeals in which costs are not charged are those in which the appellant is granted leave to proceed in forma pauperis.  An appellant will granted leave to proceed in forma pauperis upon a finding that they cannot afford to pay the appellate fees.  NRAP 24; FRAP 24; Sup. Ct. R. 39.  In both Nevada and the Ninth Circuit, the appellant must first file a motion in the district court that sets forth their inability to pay the costs on appeal.  NRAP 24(1); FRAP 24(1).  The motion must (a) show financial inability to pay appeal fees, (b) demonstrate that the appellant is entitled to some form of relief, and (c) state the issues on appeal.  Id.  If, and only if, the motion is denied by the district court, may the appellant  file a motion with either the Nevada appellate courts or the Ninth Circuit again seeking leave to proceed in forma pauperis. NRAP 24(5); FRAP 24(5).

In the United States Supreme Court, the party seeking leave to proceed in forma pauperis must file a motion with the Supreme Court which complies with the Ninth Circuit’s requirements (i.e., it must (a) show financial inability to pay appeal fees, (b) demonstrate that the appellant is entitled to some form of relief, and (c) state the issues on appeal).  Sup. Ct. R. 38(1).

Although these fees may seem steep, they are a necessary evil for the orderly operation and administration of appellate courts.  If you are contemplating an appeal, or have a client contemplating an appeal, always be aware of what you have to pay to play.

Congratulations, You Lost: a Basic Explanation of How the Appellate Process Works

There are three outcomes to litigation:  you win, you lose or you settle.  If you’ve settled, this is not the site for you.  If you’ve lost, congratulations on being a big, fat loser!  You get to appeal.  If you’ve won, please accept my condolences because the other side will most likely challenge that win on appeal.

Now that I have either ruined or made your day, let me give you a brief explanation of how the appellate system works.

HOW THE APPELLATE SYSTEM WORKS

When a case ends before the district court (the lower court), either party has the right to an appeal.  The appeal process is started by filing a notice of appeal to the next highest court.  Generally, court systems are structured like a staircase.  First, you must litigate in the lower court (step 1).  Then, you may appeal that decision to an intermediate appellate court (step 2).  After the intermediate appellate court decides your case, you can proceed to the highest, or the “supreme” court (step 3).  Seems pretty simple, right?  Unfortunately, the appellate process is a little more complicated than that.  Here’s a breakdown.

Nevada 

In Nevada, the appellate system looks more like an elevator and less like a traditional staircase.  Once you have lost in the district court, you file your appeal directly with the Nevada Supreme Court.  The Nevada Supreme Court is the highest court in the state.  The Nevada Supreme Court then decides whether your case will be sent back down to be heard by the Nevada Court of Appeals, the intermediate appellate court, or whether it will bypass the Court of Appeals and go straight to the Nevada Supreme Court.

If your case is assigned to the Nevada Court of Appeals, and you lose again, you can petition for review of that decision by the Nevada Supreme Court.  For cases assigned to the Court of Appeals, you are not automatically granted the right to have the Nevada Supreme Court hear your appeal.  If The Nevada Supreme Court declines to hear your appeal, your case is over.

If your appeal bypasses the Nevada Court of Appeals, and is heard by the Nevada Supreme Court, and you lose, you can petition the United States Supreme Court to hear your case.  Again, you are not automatically granted the right to have the United States Supreme Court hear your appeal.  If the United States Supreme Court declines to hear your appeal, your case is over.  If it grants your petition, your case is over once the United States Supreme Court hears the appeal.  The United States Supreme Court is the highest court in the country.  Except for maybe God, there is no one else who is going to hear your case after their decision.   

Federal

The federal system resembles a traditional staircase.  Once you have lost in federal district court, you file an appeal with the intermediate federal appellate court for that “circuit,” i.e., area of the country.  In Nevada, your federal appeal would go to the Ninth Circuit Court of Appeals.

If you lose in the Ninth Circuit, you may petition the United States Supreme Court for review.  Again, the United States Supreme Court gets to decide what cases it wants to hear.  If it declines to hear your appeal, your case is over.

If the United States Supreme Court accepts your appeal, your case is over once the Court issues a decision resolving your case.

This is a very simple overview of an uncomplicated appeal.  There are many legal nuances that may apply to your appeal which will affect where, when and how it is heard.

WHAT HAPPENS ON APPEAL

Unfortunately, suffering through litigation long enough to make it to the appellate process will not prepare you for what is in store.  The appellate process is nothing like the litigation process.  The case that you take up on appeal is the case that you lost (or won), below.  You cannot add new evidence, argument, claims or facts.  The appellate courts are limited to reviewing the decisions of the lower courts to determine whether those decisions are correct given the evidence, facts, argument and law before the court at the time that the lower court decided your case.

The appellate process is largely a written process.  Generally, the party who appealed (the “appellant”), will file an opening brief stating why they think the lower court screwed up.   The opposing party (in state court, the “respondent” and in federal court, the “appellee”), then gets the opportunity to file a responding brief in which they argue why the lower court was right.  The appellant can then file a brief which replies to the responding brief.   

The appellate court has discretion whether to grant oral argument on the appeal.  Oral argument is exactly what it sounds like.  Your attorney goes, stands before the Judges or Justices, and orally argues your case.  The Judges or Justices get to ask your attorney questions.  There are no witnesses.  There is no evidence.  You do not get to stand up and testify before the appellate court.  The argument is purely legal argument and the questioning by the Judges or Justices can be pretty brutal.   Adding insult to injury, your case may be determined without oral argument, if the court does not believe that argument is necessary.

The appellate court will then issue a decision on your case.

That’s the appellate process in a nutshell.  Again, most appeals are much more complicated than this.  You may have to participate in mandatory settlement conferences.  Your attorney likely will have to file procedural motions and briefs in addition to your opening, responding or reply brief.  But as a litigant preparing themselves for an appeal, you should at least expect the above process.