On November 4, 2014, Nevada voters approved a constitutional amendment establishing the state’s first intermediate appellate court. The new court operates under an unusual “push down” model, in which all appeals are filed with the Supreme Court and then may be assigned to the three-judge Court of Appeals based on the types of issues presented. Recently, new rules went into effect implementing this change. Under the new rules, the Supreme Court shall hear and decide fourteen types of cases. All other case categories will be “presumptively assigned to the Court of Appeals.” The fourteen case categories retained by the Supreme Court are as follows:
- Proceedings that invoke the original jurisdiction of the Supreme Court, other than discovery related matters;
- Death penalty cases;
- Cases involving ballot or election questions;
- Cases involving judicial discipline;
- Cases involving attorney admission, suspension, discipline, disability, reinstatement and resignation;
- Cases involving the approval of prepaid legal service plans;
- Questions of law certified by a federal court;
- Disputes between branches of government or local governments;
- Administrative agency appeals involving tax, water or public utilities commission determinations;
- Cases originating in business court;
- Appeals from orders denying motions to compel arbitration;
- Cases involving the termination of parental rights or NRS Chapter 432B (protection of children from abuse and neglect);
- Matters raising as a principal issue a question of first impression involving the United States or Nevada constitution or common law; and
- Matters raising as a principal issue a question of statewide public importance or an issue upon which there is an inconsistency in the published decisions of the Court of Appeals or of the Supreme Court or a conflict between published decisions of the two courts.
A litigant who wants his case to be heard by the Supreme Court has only one opportunity to argue that the issues presented in his appeal fall into at least one of the above-listed categories. This opportunity comes in the form of the routing statement now required in every appellate brief by NRAP 28(a)(5). The routing statement must set forth whether the matter is retained by the Supreme Court or assigned to the Court of Appeals under NRAP 17. Parties may argue, however, that the Supreme Court should retain jurisdiction over the case “despite its presumptive assignment to the Court of Appeals, based on a principal issue raised in the matter…” NRAP 17(d), NRAP 28(a)(5). This argument must be accompanied by a clear statement of the relevant issue, citations to the record where the issue was raised and an explanation of the importance of the issue. Id.
Once a case is assigned to the Court of Appeals, a litigant may not move for reassignment. Instead, an aggrieved party may file a petition for Supreme Court review after final disposition of the case by the Court of Appeals. NRAP 40B(a). The petition must state the question presented for review and why the review is warranted. Parties must remember, however, that Supreme Court review “is not a matter of right but of judicial discretion.” Id. If an appeal failed to meet the requirements of NRAP 17(a) when it was assigned to the Court of Appeals, it is just as unlikely to meet the standard for Supreme Court review of a Court of Appeals decision under NRAP 40B(a). For these reasons, a well drafted routing statement plays a crucial role in whether a litigant’s appeal will be heard by the Supreme Court or “pushed down” to the Court of Appeals.
Appeals filed in construction matters must be evaluated on case by case basis. If an appeal presents a question of first impression, matters of statewide importance, or involves an order denying a motion to compel arbitration, it will likely be heard by the Supreme Court. However, appeals from judgments of $250,000 or less (exclusive of interest and attorneys’ fees) or appeals challenging discovery orders or orders resolving motions in limine will be pushed down to the Court of Appeals. Lawyers who handle appeals in Nevada should carefully review the amended rules of appellate procedure to ensure the best strategy and advocacy for their clients.