The Supreme Court’s Decision-Making Process

Attorneys and litigants alike often wonder how their case makes its way through the Supreme Court.  You file a notice of appeal and docketing statement and then brief the case according to the Court’s scheduling order.  But what is happening behind the scenes?  Who decides the case, and what does the decisional process look like?  An abridged description follows.  This information comes from the Supreme Court’s Internal Operating Procedures, which can be found on the Court’s website.

Jurisdictional Check

One of the first things that happens once an appeal is docketed is screening by Supreme Court staff to ensure that appellate jurisdiction exists.  The appellant assists with this jurisdictional check by accurately responding to the docketing statement questions regarding timeliness of the notice of appeal and substantive appealability.  If the Court has concerns regarding its jurisdiction, it will issue an order to show cause why the case should not be dismissed.  Generally, in civil appeals, even if the respondent files a motion to dismiss for lack of jurisdiction, the Court will wait until after the settlement process is completed before making a decision regarding its jurisdiction.

Assignment to the Court of Appeals

The docketing statement also helps the Supreme Court determine which cases should be assigned to the Court of Appeals. The Supreme Court presumptively assigns certain types of cases according to NRAP 17(b).

Decisional Tracks

For appeals that the Supreme Court decides to retain, cases are assigned to one of four decisional tracks in order to tailor the decision-making process to the needs of each case.  These tracks are:  (1) en banc chambers track; (2) panel chambers track; (3) en bank staff track; and (4) panel staff track.  Some cases are automatically designated as en banc cases soon after the case is docketed.  These include cases that involve ballot or election questions; judicial or attorney discipline; the death penalty; approval of pre-paid legal service plans; questions of law certified by a federal court; disputes between branches of government; the administration of the judicial system; or that raise as a principal issue a question of first impression involving the Nevada Constitution.

The Writ, Appellate Briefs

June 2017, Vol.39, No. 6 (Pages 8 & 9)

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