In spite of a higher number of resolved cases, the Nevada Supreme Court and Court of Appeals still have a backlog of more than 2,000 unresolved cases — the second-highest total of this decade.

According to the Nevada Judiciary’s 2019 annual report, which was released Thursday, the state’s two highest courts had 2,042 appealed cases pending at the end of the 2019 fiscal year — a slight decrease from last year’s record-high backlog of 2,201 pending cases.

Supreme Court Chief Justice Mark Gibbons said that although the court has increased its clearance rate — more than 3,100 cases disposed of through orders, opinions and denials in 2019 — the growing number of appealed cases may make it necessary to request an increase in size to the three-member Court of Appeals in the 2021 legislative session.

“By the number of cases we have, we are the busiest appellate court in the United States,” he said. “Iowa was a state we modeled our Court of Appeals after, they have (9) Court of Appeals judges. We have three. So the workload per appellate judge is massive.”

Voters in 2014 approved the addition of a statewide Court of Appeals in the Constitution, in part because of arguments that it would help alleviate the then-overwhelming backlog of cases facing the seven state 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. 

Although the appellate court helped drop the number of pending cases from 1,985 in 2014 to a little more than 1,600 in 2016, the backlog has continued to creep up — sitting at 1,822 in the Supreme Court and 220 cases in the Court of Appeals for a total of 2,201 unresolved cases at the end of the 2019 fiscal year.

Although the three-member appellate court has taken on a substantial part of the court’s workload (nearly 1,100 cases were assigned to the court in 2019), the backlog of unresolved cases has continued to rise, in part because of a growing number of cases filed.

In 2019, more than 2,980 cases were filed before the Supreme Court, including more than 1,200 civil appeals, roughly 1,100 criminal appeals and hundreds of other proceedings, bar matters and other petitions for review. The 2,982 cases filed in the 2019 fiscal year was slightly higher than the mark set last year, 2,935, and remains hundreds of cases larger than the totals filed in 2016 and earlier years.

As Gibbons said in an interview last year, the backlog was a combination of structural issues including the state’s universal right to appeal, a growing population and more cases being appealed from lower courts. He said it was unlikely that the transition of two new members of the appeals court (Justices Elissa Cadish and Abbi Silver) to the high court had contributed to the backlog, given that both had extensive past judicial experience.

Although the backlog remains high, the courts actually saw an increase in the total number of cleared cases: “disposed” cases dealt with by order or opinion rose to more than 3,150 in 2019, or nearly more than 460 cases cleared than in the previous fiscal year.

That jump is largely because of the court filing a larger number of orders, which are shorter, typically authored by three-judge panels and typically don’t set the kind of legal precedent of longer opinions, which tend to be decided by all seven members of the court. Between the Supreme Court and Court of Appeals, close to 3,000 cases were decided by order in the 2019 fiscal year, compared to just 81 cases decided by written opinion.

Gibbons said the reason the court is relying more heavily on orders as opposed to written opinions is twofold: a change made several years ago allowing Supreme Court orders, not just opinions, to be cited as precedent in lower court cases, and a desire to quickly resolve sensitive cases dealing with custody or other time-sensitive matters.

“The sooner we get it out, it's better, so that parties can get along with their life and deal with that,” he said.

He emphasized that the state’s universal right to appeal meant that the court didn’t have much say in what cases it ended up before it, so the number of “opinion-worthy” cases can ebb and flow every year.

“We get whatever comes in here, then we have to decide (between) opinions versus unpublished orders that are citable but aren't published,” he said. “And it changes year to year. Next year, maybe those double. I don't know. We'll just see what happens.”

Gibbons said he didn’t foresee the Legislature increasing the size of the seven-member Supreme Court, but was still weighing whether to ask for the funding and creation of additional members to Nevada’s Court of Appeals. 

Although 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, Gibbons said any request to expand the Court of Appeals would depend on the status of the pending case backlog at the end of the 2020 fiscal year and on whether funding for a new position was available in the consistently cash-hungry state budget.

“The money's limited,” he said. “It's available for expansion of the court and for different issues. So we have to weigh what's the fiscal situation as a state, what are the priorities?”