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Bar News - January 3, 2003 A Modest Proposal: An Intermediate Appeals Court for NH By: Eric R. Cioffi Excerpt of Online Bar Journal Article By Eric R. CioffiEditor's Note: The following are excerpts from a NH Bar Journal article that will be published online at www.nhbar.org. Due to the number of worthy submissions, the limited number of pages and the specific themes of certain issues of Bar Journal, Bar News will be publishing selected articles of a timely nature in excerpted form. The entire versions, including footnotes, will be published at www.nhbar.org under Publications. These articles will also be included in the Bar Journal archives, which will be posted on and searchable through the New Hampshire Bar Association Casemaker Web Library. This article addresses an issue that has plagued court systems across the nation for decades: the ever-expanding appellate caseload and its effect upon meaningful judicial review. I contend that without the creation of an intermediate appellate court system (IAC), the increasing caseload will eventually undermine the New Hampshire Supreme Court's ability to render consistent, thorough and fully deliberated opinions. Accordingly, despite the rising tide of judicial reform and financial cutbacks, I modestly propose the creation of an IAC. The New Hampshire Supreme Court was created as the state's sole appellate tribunal in 1901. For decades, the Court's caseload remained steady and easily manageable. However, the number of appellate filings, in New Hampshire and nationally, began to rise dramatically in the early 1970s. "By 1979, the volume of appeals had passed 400," and presently, 800 to 850 appeals are filed each year. In response to the rise in its caseload, the Court eliminated appeals as a matter of right and instituted a system of discretionary review. With the exception of capital murder cases, the Court could now "in its discretion, decline to accept an appeal, or any question raised therein...." Without the adoption of discretionary review, the Court would have quickly become overrun with cases, resulting in an enormous backlog that would never be overcome. Thus, the one-tier discretionary review scheme took form. This scheme, although found constitutional, "is virtually without precedent." Part 2 - Discretionary Review: Friend or Foe of Appellate Justice? The implementation of discretionary review has, to some extent, controlled the steady flow of appellate filings. However, control has come at a cost. By the mid-1980s, the Court was declining a little more than one-half of appellate filings. In 1997, "almost two thirds of the litigants taking an appeal from an adverse result at trial or before an administrative tribunal were denied an opportunity for full appellate review." According to the final report of the Appellate System Reform Commission, published in November 2001, "[a]t present, the acceptance rate of cases filed with the Supreme Court hovers in the range of 40 percent - two cases out of every five filed with the court." The above statistics lead to the unavoidable conclusion that the majority of litigants are denied some form of appellate review. This "severe erosion of meaningful access to appellate review for New Hampshire litigants" is unacceptable. Further, in all likelihood, some meritorious appeals fall through the cracks of discretionary review and are never heard. This violates one of the primary goals of an appellate court: "to review individual cases to assure that substantial justice has been rendered." Another potential consequence of continued discretionary review is that the Court's development of the common law may be in jeopardy. The percentage of accepted cases resolved by published opinions, which litigants and practitioners rely upon as precedent, has steadily declined since the early 1970s. From 1994 to 1998, published opinions only once exceeded 20 percent of the total number of cases accepted for review. One conclusion that may be drawn from this statistic is that the common law is not developing as it should. It is not entirely uncommon for the leading case, in a given area of the law, to predate the 1970s. Such antiquated precedence can leave lower courts and litigants without much guidance as to how an issue should be resolved in the twenty-first century. The common law should keep pace with legal trends and be developed and refined accordingly. Given the size of the current caseload, the limited resources of the Court, and the lack of an IAC, it is doubtful the court can continue to "dispose of its appellate caseload without compromising the fundamental quality of appellate justice." Consider the following: Assuming a work year of no more than 2,000 hours (50 weeks/40 hours a week), a caseload over 800 cases allows less than 2.5 hours per judge per case, assuming that the judges do nothing other than work on cases during all of their working hours. That is 2.5 hours per case for all judicial functions, including reading the briefs and reply briefs, assigning and reading law clerk bench memos and other work product, hearing oral argument, deliberating jointly in conference, writing, reading, and editing opinions - not to think of reading precedent, discussing cases informally among the judges, or just plain thinking. In part 3 of the article, the author evaluates the feasibility of two possible solutions: the 3JX expedited appeals process and procedural modifications. Although the 3JX process results in prompt dispositions for litigants, the orders are uncitable, thus limiting the development of common law precedent. Further, 3JX does nothing to relieve the burdens of the screening process on the justices. Procedural modifications could be made to re-route some cases to the superior court or use these judges on a rotating basis. However, these remedies may simply create overloads in the superior court docket, and, more importantly, will undermine one of the hallmarks of the appellate court system - providing "a means of ensuring that the law is interpreted and applied correctly and uniformly." In part 4, the author proposes in detail two variations for an intermediate appeals court - a subject-matter court with jurisdiction limited by types of cases and subject to the Supreme Court, or a "trickle-down" appellate court. Such a court would hear appeals for cases that were declined by the Supreme Court during its screening process. The author suggests that an IAC consisting of seven judges, seven law clerks and three secretaries would cost roughly $1,079,235 annually in salaries, an amount comparable to that now spent on the Family Division, but excluding any provision for office space, and assuming that the Supreme Court's courtroom facility would be utilized by the IAC. The author then enumerates the benefits of an IAC aside from providing a meaningful appeal right to all litigants, which are condensed below: • Checking and Balancing the Trial Courts The Court's current system of discretionary review virtually ensures that some errors of law escape appellate scrutiny, resulting in a lack of error correction and the routine assessment of whether the law is being applied uniformly below. • Distilling the Review of Issues of Law The creation of an IAC provides an intermediate "filter" that would allow the Supreme Court to focus upon more significant or pressing cases. Further, this intermediate level will reduce appeals to the Supreme Court, thereby buying back precious time, which the Supreme Court can reinvest in its deliberative and opinion drafting process. And those cases that travel through two levels of appellate review will be finely distilled into concise and clear issues of law by the time they reach the Supreme Court. • Creating a Pool of Prospective Appellate Justices The creation of an IAC will aid in making sure qualified, publicly scrutinized candidates are available for appointment to the Supreme Court. The IAC could provide a fertile training ground for future Supreme Court appointees, and affording the public the ability to review the candidates' performance as an appellate judge. • Increasing Public Understanding of the Appellate Process The creation of an IAC would bolster the legitimacy, understanding and acceptance of the appellate process. Having one's case declined by the Supreme Court does nothing to ease the litigants' belief that the case was unfairly decided. If the appellate court affirms the judgment, the parties and the public have additional assurance that the proceeding was lawfully and properly conducted and that it was not the result of a single judge's arbitrary or idiosyncratic action. Conclusion The citizens of New Hampshire need a more meaningful appellate process. At the very least, every citizen should be afforded one full and complete appeal as of right. In New Hampshire, the current trend of judicial reform seeks to control and curtail the functions of the judicial branch, not expand it. Therefore, the concept of creating an IAC is currently outweighed by the cry for judicial branch budget cuts and legislative action to counter recent Supreme Court decisions. Unfortunately, what is lost amidst the mayhem is the fundamental notion that the citizens of New Hampshire deserve due process and unhindered access to the court system. This includes an appeal as of right to an appellate court - a right that is best fulfilled by creating an intermediate appeals court. Eric Cioffi is a former New Hampshire Supreme Court law clerk. Prior to his clerkship, he was an associate at a New Hampshire law firm. He has written several articles on appellate advocacy for Bar News.
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