State of Iowa Supreme Court Organizational Assessment and Workflow Review Final Report

STATE OF IOWA SUPREME COURT

ORGANIZATIONAL ASSESSMENT AND WORKFLOW REVIEW

FINAL REPORT

April 2008

John P. Doerner, NCSC Project Director Roger A. Hanson, Consultant

Daniel J. Hall, Vice President Court Consulting Services 707 Seventeenth Street, Suite 2900 Denver, Colorado 80202

TABLE OF CONTENTS

PAGE

Executive Summary...... 1

I. Introduction...... 3 A. Overview of the Iowa Supreme Court...... 3 B. Re-organizational Plans ...... 5 C. Scope of Workflow Project ...... 6 D. Comparative Appellate Systems ...... 7

II. Central Staff Attorneys – Screening Unit...... 15 A. Functional Responsibilities...... 15 B. Staffing ...... 16

III. Workflow and Management Issues ...... 17 A. Procedures for Review and Decisions on Motions ...... 19 B. Procedures for Preparation of Case Statements and Routing Cases .....23 C. Management of the Adjudicative Workflow ...... 27 D. Organizational Structure ...... 30

IV. Conclusion ...... 36

State of Iowa Supreme Court Organizational Assessment and Workflow Review Final Report

Executive Summary

The Iowa Supreme Court is in the midst of a reorganization process designed to accomplish several objectives. These objectives include consolidation of bar regulatory functions, establishing improved efficiencies in related operations between the Central Staff Attorney Screening Unit and the Clerk’s Office, and aligning the staff attorneys’ work efforts more closely with the Court’s fundamental values of timely processing of motions and preparation of case statements.

In accordance with these objectives, the Iowa Supreme Court and the State Court Administrator’s Office contracted with the National Center for State Courts for a review of the Court’s reorganization plan and analyze related workflow processes to help achieve the full efficiency potential. It is anticipated that the results of this workflow study will provide the Iowa Supreme Court with information and appropriate alternatives for completing its planned reorganization, establishing sound structural managerial relationships and modifying various aspects of the adjudicative process to improve timeliness in the resolution of motions and decisions on the retention of cases or transfer to the Court of Appeals.

Iowa’s appellate process utilizes a “deflective” system in which all cases are initially filed in the Supreme Court. Once the parties have competed briefing, the Central Staff Attorney screening Unit reviews the case, prepares “case statements” which include a case routing recommendation. A three-justice panel reviews the case statements and makes a decision regarding retention of the case or transfer to the Court of Appeals. Aside from Iowa, only the states of Idaho and Mississippi currently utilize a deflective system.

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The NCSC project team conducted interviews with the Chief Justice, several associate justices, the Clerk of the Supreme Court and several of his staff, and the central staff attorneys comprising the Screening Unit. Information regarding the adjudicative functions conducted by the Screening Unit was reviewed and studied in light of the needs expressed by the members of the Court. In addition, statistical and procedural information was gathered from Idaho and Mississippi, as well as Hawaii and South Carolina which previously used a deflective system, for comparative purposes.

The NCSC project team developed alternative approaches they considered suitable and relevant to enhance the performance of the Court’s administrative and adjudicative functions. The proposed alternatives are designed to improve efficiency in the Court’s operations and, ultimately, to achieve more timely decision making. These procedures were in the following process areas:

• Review and Decisions on Motions • Preparation of Case Statements and Routing Cases • Workflow Related to Adjudicative Functions • Organizational Structure

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I. Introduction

A. Overview of the Iowa Supreme Court

During the decade of the 1970’s, many state judicial systems initiated significant revision and modernization of their appellate court systems. This change occurred through the creation of an intermediate court of appeals and implementation of the two-tiered process of appellate review. In 1976, the Iowa Supreme Court and the Iowa State Legislature developed and created the six-member Iowa Court of Appeals.

However, Iowa is relatively unique among the current 39 state judicial systems that include an intermediate court of appeals. The Iowa appellate process, commonly referred to as a deflective or diversionary process, is similar to Idaho, Mississippi and formerly South Carolina and Hawaii,1 in that all cases are originally filed in the Supreme Court. Once the briefing is completed, a case is screened and a panel of three justices makes a determination as to whether the case should be retained by the Supreme Court or transferred to the Iowa Court of Appeals for a decision on the merits. The authority guiding the Court’s discretion regarding the transfer of cases is Iowa Rules of Appellate Procedure 6.401 (2) and (3):

6.401(2) The supreme court shall ordinarily retain the following types of cases:

II. Cases involving substantial constitutional questions as to the validity of a statute, ordinance or court or administrative rule. III. Cases involving substantial issues in which there is or is claimed to be a conflict with a published decision of the court of appeals or supreme court. IV. Cases involving substantial issues of first impression. V. Cases involving fundamental and urgent issues of broad public importance requiring prompt or ultimate determination by the supreme court. VI. Cases involving lawyer discipline. VII. Cases appropriate for summary disposition.

1 The diversionary appellate process was disbanded by the State of South Carolina in 1995 and by the State of Hawaii in 2006.

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6.401(3) Other cases shall ordinarily be retained by the supreme court or be transferred to the court of appeals as follows:

a. Cases which involve substantial questions of enunciating or changing legal principles shall be retained. b. Cases which involve questions of applying existing legal principles shall be transferred.

The deflection process contrasts with the process in a majority of state judicial systems where first-level review of most appeals is conducted in the intermediate appellate court. However, in both the “deflective” and the more common processes, either party may file a application for further review in the Supreme Court upon a final decision by the intermediate court of appeals.

In 1998-1999, because of continued backlog in the appellate courts, the Iowa Court of Appeals was increased in size from six to nine judges, and concomitantly, the size of the Iowa Supreme Court was reduced from nine to seven justices. The number of justices in the Minnesota Supreme Court was similarly reduced when that state established an intermediate court of appeals in 1983.

The Iowa Supreme Court, as a seven member body reviewing its cases en banc, conducts its adjudicative function similarly to most other state supreme courts with the exception of the additional work inherent to the deflective appellate process. Hence, the Iowa Supreme Court has a substantial amount of work to do: handling all cases, along with all motions filed, prior to the completion of briefing; making the decision regarding retention or transfer of fully briefed cases to the Court of Appeals; completing appellate review on all retained cases; and considering applications for further review in cases that were initially decided by the Court of Appeals. The Supreme Court also handles multiple types of original proceedings, attorney disciplinary matters, certified questions of law from the federal courts, and requests for advisory opinions. In addition, as the

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constitutional head of the Iowa Judicial Branch, the seven-member Iowa Supreme Court oversees the admission and regulation of attorneys in the state, promulgates rules of procedure and practice used throughout the state courts, and has supervisory and administrative control over the judicial branch, judicial officers and all court employees.

Thus, the organization of the Supreme Court and the degree to which its operations are efficiently managed, are perennial subjects for systematic review, enquiry and policy considerations to enhance optimal institutional performance.

B. Re-organizational Plans

One opportunity the Iowa Supreme Court has identified to improve its organization and performance includes restructuring the Central Staff Attorneys Screening Unit. A critical element of the reorganization plan is the reassignment of the Director of Appellate Screening to the office overseeing bar admissions. This move will include assumption of responsibility for management and supervision of the state bar examination, which is currently handled by the Clerk of the Supreme Court. In addition, the Clerk of the Supreme Court will assume organizational responsibility for managing the Central Staff Screening Unit. The primary objectives of this reconfiguration is to consolidate bar regulatory functions, help establish improved efficiencies in related operations between the Screening Unit and the Clerk’s Office, align the staff attorneys’ work efforts more closely with the Court’s fundamental values of timely processing of motions and preparation of case statements, and enhanced monitoring of work assignments within the Screening Unit. The Central Staff Attorney Screening Unit is expected to retain the existing responsibilities of screening cases and handling motions, although the manner in which the workflow is structured may be revised. A primary consideration in the restructuring is coordinating workflow in a way to maximize effective use of the professional skills and abilities of the contingent of staff attorneys as well as the staff of the Clerk of the Supreme Court and, ultimately, to

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provide the greatest degree of assistance to the justices in making timely adjudicative decisions on motions and the appropriate retention or transfer of appellate cases.

In addition, the Supreme Court is considering the addition of a staff attorney position, reporting directly to the Court. If implemented, the individual occupying this position may receive direct supervision from the General Counsel to the Chief Justice and also may assume responsibilities such as, operational support, legal research and analyses for the various rules committees, intra-branch development efforts, and other special projects. If structured in this manner, this additional position can be expected to relieve the attorneys in the Screening Unit of many these responsibilities and allow them to focus more completely on supporting the Court’s adjudicative function.

C. Scope of Workflow Project

The Iowa Supreme Court and the State Court Administrator contracted with the National Center for State Courts Consulting Services Division to conduct a review of the Court’s reorganization plan and analyze related workflow processes to help achieve the full efficiency potential. The NCSC workflow analysis considered the short-term and longer-term implications for the processes by which the Court operates, optimizing the efficiency, timeliness, and the quality with which such work is completed. Of particular concern was the average length of time from the filing of motions to the subsequent ruling; recently, this process has taken from one to eight months to complete. In addition, this study involved reviewing the impending managerial relationship between the Clerk of the Supreme Court and the Central Staff Attorney Screening Unit. Finally, to assure that the work of the Screening Unit continues to provide effective assistance to the Supreme Court in fulfilling its adjudicative responsibilities, this study evaluated the congruence of the collective needs of the justices with the form and substance of the staff attorney’s work products and the manner in which such assistance is generally provided.

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It is anticipated that the results of this workflow study will provide the Iowa Supreme Court with information and appropriate alternatives for completing its planned reorganization, establishing sound structural managerial relationships and modifying various aspects of the adjudicative process to improve timeliness in the resolution of motions and decisions on the retention of cases or transfer to the Court of Appeals.

D. Comparative Appellate Systems

Gaining an understanding of Iowa’s appellate process is increased by comparing and contrasting it to the processes in other states that also utilize a deflective system. Iowa is one of a small number of states with an intermediate appellate court in which all appeals are filed directly with the Supreme Court which subsequently decides whether to retain or transfer each case. Since Iowa began operating with a deflective system in 1976, it has been joined by South Carolina, Hawaii, Idaho, and Mississippi, although South Carolina and Hawaii discontinued the deflective process in 1995 and 2006, respectively. The processes in all of these states have generally included three important characteristics:

1. The Supreme Court makes its decision to retain or transfer the case upon the close of briefing by the parties. 2. A central staff attorney prepares and submits recommendations on whether to retain or transfer to the Supreme Court. 3. A party dissatisfied by an order transferring a case to the intermediate appellate court may file a motion to reconsider that decision. However, Iowa appellate rules provide no explicit authority for such a pleading.

The manner in which these procedures are applied varies depending on the practices followed in each state. Reviewing the commonalities, as well as the differences in these

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procedures allows us to evaluate the Iowa process and provides a basis for considering feasible alternative methods for getting the job done.

To that end, this portion of the report describes how deflective systems operate in the other states and how Iowa compares to those systems in terms of number of justices and court staff members, the number of cases resolved and decided on the merits, and the volume of motions activity. Because South Carolina altered its appellate structure over 12 years ago, its system will be described in operational terms but case load and related figures are not included in the table below. Such data from 1995 are not sufficiently comparable with the more recent figures from the other states. With that qualification, a synopsis of the various deflective systems indicates several striking patterns among the comparison states:

• First, the work of central staff attorneys in the comparison states is directed at identifying whether any of the issues raised in the briefs meet well- established criteria for the retention of cases by the Supreme Court. The work products forwarded to the Supreme Court involve only short analyses and limited clarification of detailed facets of legal issues. It is unusual for the central staff attorneys to prepare anything longer than a single page report. Instead, the process and the work products reflect the working knowledge that the central staff attorneys have gained through ongoing communication and feedback from their respective supreme courts regarding what the courts expect, find instrumental and consider in making their case routing decisions.

• Second, the focused attention given by central staff attorneys on what to provide to the supreme courts is paralleled by focused attention by the Court in making its decisions. Generally, a single justice of the Supreme Court receives the recommendations from the central staff attorney and authoritatively decides whether a case shall be retained or transferred.

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Court-wide or three member panel participation is not the common pattern, with the exception of Mississippi. However, even in Mississippi, a single justice makes the initial decision whether to retain or transfer a case, which is then ratified or modified by the full bench.

• Third, the work of central staff attorneys in preparing recommendations is done by an individual staff member without close scrutiny or supervisory review by the head of the central staff unit.

• Fourth, the comparison states rely on the parties, as well as the intermediate appellate courts, to monitor decisions on transferring cases and to signal to the Supreme Court whether they believe a case was incorrectly transferred or the case’s novelty, complexity, difficulty or public importance may have been overlooked. This quality control mechanism is reinforced by the Supreme Court’s subsequent ability to grant an application for further review in the event that a case’s suitability for Supreme Court review was determined only after a decision by the intermediate appellate court.

• Fifth, the commonalities in the processes followed in the comparison states exist despite variations in the size of the states and in the case load levels. As a result, procedural differences between the comparison states and Iowa do not appear to result from variation in caseload volume. Rather, the Supreme Courts in other states have made conscious decisions regarding what information they need or do not need from the staff attorneys in making their decisions on whether to retain cases. This delineation of what constitutes valuable information enables the Supreme Courts to conserve their limited time and resources in making judicial decisions on whether to retain cases.

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These observations are based on interviews with clerks of court and central staff attorneys in the comparison Supreme Courts as well as an examination of case load and other contextual factors. Case load figures are presented below in Table 1.

Table 1

Comparisons of Deflective Appellate Court Systems

HAWAII IDAHO MISSISSIPPI IOWA

FY 2006 2006 2006 2006

Number of Supreme Court Justices 5 5 9 7 Cases Decided by Supreme Court 193 140 258 132 Cases Resolved by Supreme Court 454 345 489 584 Number of Motions/Petitions 2,770 3,311 3,695 7,493 Number of Central Staff Attorneys 5 1 8 6.5 Number of Cases Transferred 318 349 689 1,092 Number of Court of Appeals Judges 5 3 10 9 Cases Resolved by COA 307 633 689 1,072 Cases Decided by COA 298 632 620 1,052

Note: The figures for the number of cases decided include decisions on the merits, whether by published or unpublished opinion, or order. The figures for the number of cases resolved include cases decided as well as cases disposed of by abandonment, withdrawal, dismissal (e.g., lack of jurisdiction, failure to comply with court rules) or rulings on dispositive motions.

South Carolina. 2 The deflection decision was made after an initial determination by the five-member South Carolina Supreme Court on whether oral argument would be required. If oral argument was deemed appropriate, the Supreme Court retained the case. This decision was made with the benefit of Central Staff Attorney input. If a Central Staff Attorney concluded that a case should be decided without argument, he or she prepared a recommendation and memorandum to that effect. If the Supreme Court, upon deliberation, unanimously agreed that oral argument was appropriate, the Court would issue an order to retain the case.

2 The deflective system was discontinued in 1995.

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Cases lacking unanimous agreement to conduct oral argument, regardless of whether the case might have been recommended for oral argument by a central staff attorney, were then reviewed again by a central staff attorney to determine whether they should be retained or transferred to the Court of Appeals. Retention depended on whether a case met at least one of eight statutory criteria, (e.g., novelty, significant public importance.) The recommendations consisted of one line statements which the Chief Staff Attorney submitted to the Chief Justice, who entered an order either retaining or transferring the cases.

Hawaii.3 Upon completion of briefing, cases were assigned to one of the central staff attorneys. The attorney prepared a memorandum noting the basic facts of the case, the course of the proceedings, the issues raised in the briefs, and whether one or more of the issues met one or more of five specified criteria for retention of a case. The specified criteria were

• Legal question of first impression. • Issue requiring state or federal constitutional interpretation. • Issue of law regarding the validity of a state statute, county ordinance or agency regulation. • Issue raising a potential inconsistency in the decisions of the Hawaii Court of Appeals. • Issue involving a life sentence without the possibility of parole.

The memorandum might also note whether there are record or briefing deficiencies, but it did not provide a description of facts, analysis of the issues or recommendations about final disposition.

3 The deflective system was discontinued in 2006.

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Memoranda were submitted to a single assignment justice, who was designated by the Chief Justice to decide whether the five-member Supreme Court should retain a case or transfer it to the five-member Court of Appeals. The Supreme Court did not conduct a review of the assignment justice’s decision.

Idaho. The deflective system in Idaho is put into motion when, after the close of briefing, the Clerk of Court sends a case file and a Case Statement Form ( See the Attachment to this Section) to the single staff attorney. Only the name of the case has been provided by the Clerk’s Office on the Case Statement Form. The form includes eight boxes which correspond to the formally established criteria for retention (e.g., case is one of first impression). The staff attorney will check the boxes, if appropriate, as part of the screening process.

In addition, the staff attorney will write a three to four sentence summary of the case. If one or more of the boxes is checked, the staff attorney will highlight the issue(s) which correspond to checkmarks, although in practice not all issues are necessarily summarized. The form is then submitted to a single assignment justice designated by the Chief Justice. The assignment justice concurs or rejects the recommendation by the staff attorney and issues an order assigning the case to either the five-member Supreme Court or the three-member Court of Appeals. The full Supreme Court does not review the assignment justice’s decisions.

It should be noted that the staff attorney has served the Idaho Supreme Court for over ten years. She utilizes the work experience and knowledge she has gained so as not to rely solely upon the formal criteria for retention. For instance, a particular case may not meet any of the formal criteria for retention, but the staff attorney knows the Supreme Court is unlikely to take criminal cases, unless an Appellate Public Defender states clearly in the initial section of the appellant’s brief that they are seeking a reversal. In

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addition, because the Court of Appeals has a very large case load, the Supreme Court frequently retains complex civil cases with multiple issues. This working knowledge, built over several years of experience, plays a role in the staff attorney’s recommendations.

Finally, the efficiency of the staff attorney appears to be enhanced by the rules regarding briefing. In Idaho, appellate counsel is required to describe “The Nature of the Case” in a half a page or so at the start of their brief. This section is expected to focus on the question of why the Supreme Court should take the case. In reviewing briefs, the staff attorney relies initially on that portion of the brief.

Mississippi. Upon the completion of briefing, central legal staff prepares a two page summary of the case with a description of the issues and comments on the perceived merits of the issues, along with a recommendation on whether to retain or to transfer the case to the ten-member Court of Appeals. After this memorandum is prepared, it is reviewed by the head of central legal staff who then forwards a number of these memoranda to a single associate justice of the nine-member Supreme Court. The associate justice makes a decision whether to accept or reject the recommendations and then submits that decision to the full Court. A majority decision subsequently determines whether the case will be retained or transferred.

National Center for State Courts 13 ATTACHMENT – Idaho Supreme Court Order of Assignment form

ORDER OF ASSIGNMENT

______Supreme Court No. vs. ______Term ______Date at Issue ______

_____ THIS APPEAL TO BE RETAINED BY SUPREME COURT BECAUSE IT IS: _____ Death Penalty _____ IPUC ___ _ Ind. Comm. _____ Bar/Judicial Council _____THIS APPEAL REQUIRES REVIEW FOR ASSIGNMENT _____RECOMMEND THIS APPEAL BE RETAINED BY SUPREME COURT BECAUSE: State Constitutional Question Law Clarification Federal Constitutional Question Supreme Court Finality First Impression Inconsistent Decisions Validity of Statute Substantial Public Interest

_____RECOMMEND ASSIGNMENT TO THE COURT OF APPEALS Recommend on the Briefs (___Sentence Review___ Post-Conviction ___Pro Se ___Other) _____RECOMMEND REVIEW BY ASSIGNMENT JUSTICE FOR ASSIGNMENT

STAFF ATTORNEY COMMENTS:

______Date Staff Attorney ------ASSIGNMENT JUSTICE COMMENT:

NOW, THEREFORE, IT IS HEREBY ORDERED THAT: _____ This Appeal is Retained by the Supreme Court _____ This Appeal is Assigned to the Court of Appeals _____ On The Briefs

______Date Assignment Justice

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II. Central Staff Attorneys – Screening Unit

A. Functional Responsibilities

The primary duties of the screening unit consist of • Reviewing and evaluating cases in which briefing has been completed, and developing written case statements that include recommendations in respect to whether the case should be retained in the Supreme Court or transferred to the Iowa Court of Appeals. • Reviewing and evaluating complex procedural and substantive motions, and preparing written recommendations regarding the appropriate resolution of the motion. • Reviewing and evaluating motions filed under Iowa R. App. P. 6.104, which pertain to criminal appeals lacking an adequate basis in fact or law according to the court appointed attorneys, and developing written analysis and recommendations regarding the resolution of the motion and/or disposition of the case. • Providing operational support or legal research and analysis to various rules committees or intra-branch development efforts and other special projects, on an as-needed basis.

The staff attorneys employed in the Screening Unit do not assist the Supreme Court in reviewing the issues or drafting opinions in cases which have been retained or transferred to the Court of Appeals.

The Supreme Court has implemented a number of policy and procedural changes over the years affecting the work of the staff attorneys. For example, the policy on routing cases was revised to automatically transfer to the Court of Appeals all Child in Need of Assistance (CINA) cases, Termination of Parental Rights (TPR) cases, family law and appeals of criminal sentences or appeals of conviction and sentence based on a guilty plea. In addition, the staff attorneys were relieved of most tasks pertaining to reviewing cases in which an Application for Further Review was filed after issuance of a decision by the Court of Appeals. These tasks are now conducted by the justices and their staff.

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The current estimated average monthly workload for the central staff attorneys screening unit consists of approximately 15 - 20 case statements, 80 - 90 complex procedural and substantive motions, 7 – 9 motions pursuant to Iowa R. App. P. 6.104, and legal research and support.

B. Staffing

The number of staff attorneys assigned to the Screening Unit was reduced by three positions in the early 2000s. Because the Court of Appeals was expected to handle a greater share of the overall appellate workload, those staff attorney positions were reassigned to the intermediate appellate court. In addition, one staff attorney was voluntarily reduced to a half-time position and one additional FTE was added in 2005.

The Iowa Supreme Court is served currently by seven individual attorneys (one attorney is half-time for a total of 6.5 FTE), including the Director of Appellate Screening. The screening unit is assisted with clerical tasks by a single administrative secretary. As described in the Supreme Court’s planned reorganization, the Director of Appellate Screening will be reassigned to duties pertaining to the Iowa State Bar Examination, which have been performed by the Clerk of the Supreme Court, and related regulatory responsibilities. The remaining legal staff, 5.5 FTE, will be organizationally reassigned to the Clerk of the Supreme Court. The staff attorneys are well experienced with the Court, with length or service ranging from approximately two to 30 years; the median length of service is approximately ten years. Each staff attorney is expected to be proficient in the completion of all functional responsibilities and to receive an equivalent amount of work assignments, although individual strengths have been identified and work assignments are frequently made on the basis of those abilities.

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There is a significant amount of interaction and dependencies between the Clerk’s Office and the central staff attorney Screening Unit in the form of initial screening of cases and motions, physical transfer of case files and data entry to ACP, the court’s case management system.

III. Workflow and Management Issues

As a part of this project, the NCSC team conducted both formal and informal interviews with staff screening attorneys, the Clerk of the Supreme Court and several staff persons in the Clerk’s Office, two judicial secretaries, the State Court Administrator, the General Counsel to the Chief Justice, the Chief Judge of the Court of Appeals as well as three Associate Justices and the Chief Justice. The focus of these discussions was to investigate and evaluate current issues relating to managing the Court’s workflow and the potential effects of the reorganization strategies discussed previously. In light of these interviews, the NCSC team developed alternative approaches it considered suitable and relevant to enhance performance of the Court’s administrative and adjudicative functions. The alternatives are designed to enhance efficiency in the Court’s operations and, ultimately, to achieve more timely decision making.

However, the NCSC’S proposed alternatives, even if deemed appropriate and promising by the Court, require broad scale discussion among all personnel to be implemented successfully and to promote long-term effectiveness. Organizational changes often present difficult and stressful challenges for justices, managers and staff members in adjusting to new roles, expectations and tasks. As a result, it is important that lines of communication remain open to ensure that all court personnel understand the new organizational structure and appropriately channel their views and questions on how to refine new procedures. The Justices, representing the leadership of the

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Supreme Court, should direct the communication process and establish an ongoing, suitable and orderly protocol with staff members.

This section is sub-divided into several areas pertaining to managing the functional workflow and administrative structure of the Supreme Court.

These areas are: • Procedures for Review and Decisions on Motions • Procedures for Preparation of Case Statements and Routing Cases • Management of Workflow Related to Adjudicative Functions • Organizational Structure

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A. Procedures for Review and Decisions on Motions

The Deputy Clerk screens every motion after filing in accordance with Iowa R. App. P. 21.34. Virtually all procedural motions are subsequently decided and processed by the Clerk’s Office. Complex procedural motions and all substantive motions are placed on the Motion Calendar and referred to the staff attorney Screening Unit. Once per week, the case files corresponding to the motions listed on the Motion Calendar are delivered to the Senior Screening Attorney assigned motions screening responsibility.

A Senior Screening Attorney screens the motions received and assigns each one to a particular staff attorney based on that individual’s expertise or prior involvement with the same case and/or the same party(s). In addition, the Senior Screening Attorney’s procedures include:

• Reviewing the pleadings listed for each case included on the Motion Calendar and comparing that listing with the case file, as well as reviewing the record on appeal, to ensure that all relevant papers are included. Missing pleadings or portions of the record are generally requested from the Clerk’s Office. • Determining whether decision on a motion is appropriate for one associate justice or a three-justice panel. Typically, most motions can be ruled on by a single associate justice unless they are likely to resolve the case. • Assigning a motion to a particular associate justice or creating a three-justice panel and assigning the motion to them. Unique panels are created for every individual motion so assigned. This task includes data entry to the ACP system, which is generally considered to be unnecessarily time consuming.

The case file, along with the motion and any related papers, is then delivered to the assigned staff attorney where it will remain until the motion is reviewed. A motion memorandum, including a written analysis and recommendations and/or a proposed order is then prepared by the staff attorney for submission to the single associate justice or three panel members. The Senior Screening Attorney performs a separate edit and review of the motion memoranda prepared by several of the staff attorneys. The NCSC

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team evaluated a sampling of motion memoranda, which were presented as representative of these documents, and supplied by several of the staff attorneys.

Generally, the Supreme Court has no established time frames with regard to reviewing motions and preparation of corresponding memoranda. However, the other major aspects of their workload, cases screening statements and support to rules committees or other judicial organizations, do have such deadlines in the form of procedural time- lines, scheduled meetings, and so forth. As a result, motions review and preparation of memoranda are frequently set aside to deal with the urgency of other types of work assignments.

Once the staff attorney’s review is completed, the motion and related documents, as well as memoranda, are copied, scanned, or converted to a PDF file for distribution to the assigned justice(s). Because of the elongated time frame in which the motion memoranda are completed, there are numerous instances in which one or more of the assigned justices are unavailable to rule on the motion promptly. When this situation occurs, ruling time on the motion is further extended. In some instances, the Senior Screening Attorney might reassign the motion to another associate justice.

Recommended Procedural Alternatives:

i. Consider Assigning Full Motions Responsibility to Specified Staff Attorney(s) – To increase the efficiency and ensure appropriate goal setting, the responsibility for reviewing and making recommendations on motions should be assigned to one or more central staff attorneys, as needed, rather than the current practice of dividing them equally among the entire staff. If desired, full responsibility for motions can be assigned on a rotational basis for a particular period of time (e.g., four months, six months, and so forth.) This practice would eliminate requiring the Senior Screening Attorney to review and make decisions on staff attorney assignments for every motion

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received. In addition, the particular central staff attorney(s) would have a dedicated priority to motions work, without interruption due to case statements or other related responsibilities (e.g., special projects or committee staffing assistance). The specific number of central staff attorneys devoted to motions review would depend upon an analysis of the corresponding workload. In addition, consideration as to whether motions filed under Iowa R. App. P. 6.104, which are particularly time consuming, are to be included as part of the motions responsibility will impact the number of full-time equivalent positions required for reviewing motions.

ii. Revise Initial Motions Screening Process – After motions are docketed by the court clerks, an initial review is conducted by the Deputy Clerk to determine whether each motion can be ruled on and processed by staff in the Clerk’s Office or must proceed through the full process. Typically, straight- forward procedural motions (e.g., extensions of time) are processed by the Deputy Clerk review by central staff attorneys or the justices. The screening procedure should be revised so that the docketing clerks direct these types of procedural motions to the Deputy Clerk and all others to the designated central staff attorney(s) handling substantive motions. The Court may also choose to investigate whether some of the procedural motions, particularly extensions of time, can be processed by another staff member besides the Deputy Clerk, subject to Court-approved guidelines. The Court should review Iowa R. App. P. 21.34 (1) and (2), and any other related rules, to determine whether revision is necessary to provide for delegation of these tasks to appropriate staff members.

In addition, each court clerk who dockets motions should be fully informed and aware of the types of motions that should be directed either to the Deputy Clerk or to the central staff motions attorneys. In this way, the

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amount of screening time and effort, among both the Deputy Clerk and the Screening Unit, would be correspondingly reduced.

iii. Consider Restructuring the Motions Review and Decision Process – The Senior Screening Attorney constructs a unique motion panel and assigns particular justice(s) for each individual motion. This assignment is done at the time a motion is assigned to a central staff attorney and is frequently modified due to the passage of time and changing schedules. Currently, a two to four page Motion Memorandum and/or a proposed order, typically including a recitation of the facts of the case and detailed analysis and recommendations, is prepared by the assigned central staff attorney. Approximately one-half of these motions are subsequently reviewed and edited by the Senior Screening Attorney for both grammatical and substantive purposes. The memorandum and case documents are copied as necessary and submitted to the assigned justice(s).

An overall restructuring of this process can provide alternatives for reducing the efforts necessary for assignment (and subsequent reassignments) of motions to associate justices as well as the time consumed in the preparation of extensive written memoranda for motions. One alternative is to establish a regular day and time each week in which a central staff motions attorney orally presents recommended rulings and background justification followed by brief discussion among the justices deciding each motion. The assignment of justices to the “motions panel” can operate on a rotational system, permitting adjustments, to take into account the composition of the panel and the possible inclusion of a senior justice. Each panel may operate for an established length, e.g., four months. In some instances, a panel might require additional information or research and defer the decision until the

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following week. Holding a regularly scheduled conference provides a structured time frame for the designated motions attorney to prepare recommendations and a definite time period for the justices to discuss and resolve 3-justice motions. A similar procedure for single justice motions can be also be scheduled at a separate time, with the single justice assignment rotating among the motions panel members.

Such a restructuring, in conjunction with the assignment of a designated “motions attorney” should result in greater prioritization and focus on motions, reducing the overall elapsed time from filing to ruling. In addition, case files will not be moving throughout the building for extended periods of time, but will be located primarily in either the file room or the motion attorney’s office.

B. Procedures for Preparation of Case Statements and Routing Cases

The central staff attorneys currently have responsibility for screening all cases that have been fully briefed (except those described on page 13 which are automatically transferred) and making recommendations concerning whether the case should be retained by the Supreme Court or transferred to the Court of Appeals. The product of this process is a written “Case Statement” which provides several key pieces of information (trial court location, trial judge, attorney names, a general statement of the case, and so forth) as well as an extended discussion of the facts and the issues raised, as well as the staff attorney’s recommendation on case retention or transfer. The format for case statements is established by Iowa R. App. P. 21.41 – Form 1. Case statements and recommendations are considered by a panel of three justices at a screening conference once per month, which includes participation by the Director of Appellate Screening. The analysis and preparation of case statements comprise a fairly significant

National Center for State Courts 23 State of Iowa Supreme Court Organizational Assessment and Workflow Review Final Report portion of the responsibility and workload of the central staff attorneys. During the visits to the court, the NCSC project team discussed the content and format of the case statements with the staff attorneys and obtained sample, representative documents from them. The Supreme Court justices were subsequently asked to provide their consensus on what format and content would be most helpful to them when making case routing decisions. The appropriate content for the court to make an appropriate decision is generally considered to be:

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Case information:

Trial judge and court (e.g., magistrate, juvenile, probate) Attorneys names (both trial and appellate) Parties County Brief characterization of nature of case to provide the context within which the issues arise (e.g., summary judgment for defendant sued for age discrimination; appeal of criminal conviction for forgery) Dates of lower court decision(s)—but only if this information can be obtained automatically through ACP without requiring staff attorney data input Whether the case involves:

Substantial constitutional question as to the validity of a statute, ordinance, or court or administrative rule Substantial issue in which there is or is claimed to be a conflict with a published decision of the Court of Appeals or Supreme Court Substantial issue of first impression Fundamental and urgent issue of broad public importance requiring prompt or ultimate determination by the Supreme Court Brief statement of the issue(s) meeting one of above criteria.

Are there any impediments that would prevent the court from addressing the merits of this issue, including:

Inadequate record Limited standard of review Error preservation problem

Recommended Procedural Alternative:

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i. Streamline the Case Statement Format to Meet the Court’s Needs and Reduce Staff Attorney Time and Effort

Developing a revised format for case statements that provides the information identified above, without a detailed discussion of the issues contained in the case, should offer the justices with a sufficient understanding of the case and enable the Court to make an appropriate decision.

This revision can be accomplished by use of a standard form such as the one currently used by the Idaho Supreme Court. An example, provided as an Attachment to Section I. D., can be modified as necessary and desirable to fit the needs identified within the Iowa Supreme Court.

Once a revised format is approved, the Court should consider elimination or revision of Iowa R. App. P. 21.41 – Form 1.

ii. Case Screening Decision Process The other State Supreme Courts that have a “deflective” system are Idaho and Mississippi; Hawaii’s deflective process was discontinued in 2006 and South Carolina discontinued its use of this system in 1995. With the exception of Mississippi, each of these Supreme Courts uses (or used) a single justice to make a decision regarding retention or transfer of appeals. In the case of Mississippi, a single justice makes a recommendation which is then ratified or revised by the full court. Designation as the “screening” justice generally rotates among the associate justices on a regular schedule, with the exception of South Carolina, where such decisions were made by the Chief Justice upon a recommendation from the Chief Staff Attorney. These states generally provide an avenue for parties to file a motion to reconsider the decision regarding case retention or transfer.

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In Iowa, the Supreme Court establishes a three-member panel, including one senior judge, to make screening decisions. Membership on the panel rotates among the associate justices. In addition, based upon discussions with several staff attorneys and associate justices, and a review of screening statistics, it appears that the vast majority of routing decisions are in agreement with the staff recommendation. The Court should consider revising the screening process to allow for case routing decisions to be made by a single justice. While Iowa R. App. P. 21.21 (2) provides authority for the Chief Justice to order a change to the current practice of using a three- member panel, the Court should also consider any possible statutory restrictions.

Another option might be to add a senior judge and utilize a two member panel. Lack of agreement on a two-member screening panel can be resolved by the chief justice or a third designated associate justice.

C. Management of the Adjudicative Workflow

The adjudicative workflow of the Supreme Court consists, as it relates to the scope of this project, of the rulings on motions and the routing decisions on cases. The effective management of workflow related to these adjudicative processes is essential to the timely and effective disposition of motions and routing decisions. The current procedures provide for cases listed on the Motion Calendar and cases in which briefing has been completed (unless automatically transferred to the Court of Appeals) to be assigned to a staff attorney. Case screening conferences are scheduled once per month, ten months per year, and case statements are completed prior to the scheduled conference. These arrangements create an inherent expectation for the completion of cases statements and the staff attorneys work diligently to meet that deadline. Although the Supreme Court is dedicated to the “timely” resolution of motions, no such

National Center for State Courts 27 State of Iowa Supreme Court Organizational Assessment and Workflow Review Final Report explicit time expectation or deadlines control the review of motions by the staff attorneys. The status of assigned motions is not monitored or systematically reviewed on a consistent, periodic basis. In addition, availability of the staff attorneys has been reduced in recent years as they have been assigned to non-adjudicative matters. These assignments include providing support to various committees and special projects within the Judicial Branch. As a result, the processing of motions has been delayed both because of reduced staff attorney resources and the lack of established time lines without a consistent monitoring of the workflow progress.

In addition, staff members in the Clerk’s Office prepare and issue notifications to parties in two particular instances which do not appear to be necessary. These instances are; tentative decisions to submit a case without oral argument, and when motions are set after the expiration of time allowed for a resistance to be filed. In cases without oral argument, the notification process is done pursuant to Iowa R. App. P. 21.24(3) which states: If the supreme court or the court of appeals tentatively decides to submit a case without oral argument, the chief justice or chief judge shall notify the parties of the possibility of nonoral submission and offer them the opportunity to file statements of reasons oral argument is needed and should be granted.

The notifications related to setting motions after expiration of the time allowed fro filing a resistance appears to be loosely based upon Iowa R. App. P. 6.22 (9) which establishes the authority of the Clerk of the Supreme Court to set motions for hearing or nonoral consideration. The rule does not require this notification, which appears to be unnecessary because the other parties will have been served with a copy of the motion filed and should be responsible for understanding the requirements and time period for filing a resistance which is specified in the appellate rules. No clear explanation of the rationale for this practice was provided; however, it does present a fairly significant expenditure of time and effort of court staff and operational expense.

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i. Develop Expectations for Motions Assignments and a Practice of Ongoing Work Status Review

The reorganization plans outlined by the Supreme Court include assigning supervision of the central staff attorney screening unit to the Clerk of the Supreme Court. Managerial responsibility should include the establishment of performance expectations for the analysis of motions preparation of recommendations by the staff attorneys and a practice of ongoing review of the status of motions assigned.

The Supreme Court should consider developing such performance expectations for the staff attorneys concerning work on motions. To be implemented successfully, expectations should provide a proportionate amount of time to complete the work, given the volume of motions and the number of staff attorneys available. In addition, the performance expectations should acknowledge variation in the complexity of the matters and the time required for review of different types of motions. For example, a possible format for such performance expectations might be as follows:

1. 80% of assigned motions memoranda should be completed within 21 days of assignment. 2. 90% of assigned motions memoranda should be completed within 30 days of assignment. 3. 100% of assigned motions memoranda should be completed within 45 days of assignment. 4. The assigned staff attorney shall advise a supervisor as soon as possible if a particular motion includes a degree of complexity or other circumstances requiring additional time to complete.

The percentages and time frames listed above are illustrative and should conform to the particular and changing workload demands and objectives of the Supreme Court. An ongoing practice by the Clerk of the Supreme Court

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of reviewing the status of assigned motions should also be instituted to ensure the completion of staff-related tasks surrounding motions receives appropriate priority and that further assignments are adjusted among the staff members when particularly difficult or complex cases are encountered.

ii. Review the Iowa Appellate Rules and Clerk’s Procedures to Clarify or Remove Unnecessary Notification Requirements

The Supreme Court should review the Clerk’s procedures and requirement detailed in Iowa R. App. P. 21.21(3) to clarify or eliminate unnecessary notification requirements.

D. Organizational Structure

The realignment of the central staff attorney screening unit under the organizational authority of the Clerk of the Supreme Court will occur effective April 1, 2008. In addition, the Clerk of the Supreme Court is scheduled to retire from office within the next twelve months. These changes require that the organizational structure and reporting relationships within the Clerk’s Office facilitate a smooth transition of personnel and the effective management of both Case Management/Processing and the adjudicative functions.

To ensure that the Supreme Court’s operational goals and objectives, particularly in respect to the adjudicative work of the central staff attorneys, are clearly and regularly communicated between the justices and the Screening Unit, the Clerk of the Supreme Court should establish a practice of conducting a regularly scheduled staff meeting to discuss: • The overall performance of the Screening Unit • Particular issues of either concern or praise

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• Observations and proposed revisions regarding the various procedural and organizational changes that have occurred • Communications of issues from the members of the Court

In consultation with the staff attorneys, the Clerk of the Supreme Court should determine the frequency with which such meetings are regularly held. A reasonable and feasible schedule is one in which meetings are held bi-monthly, with perhaps more frequency in the early stages of the reorganization. The meeting format should allow for occasional invitations from the Clerk of the Supreme Court to one or more of the justices to attend these meetings and communicate the Court’s goals directly to the staff attorneys.

The NCSC project team has developed three organizational reporting structures that, while very similar in appearance, differ in the extent to which the Clerk of the Court is directly involved in the ongoing oversight of the staff attorneys. The third alternative organizational structure reallocates the deputy clerk position from the Case Management Team to the Screening Unit. Implementation of this alternative would necessitate direct involvement of the Clerk of the Supreme Court in the ongoing supervision of both components of the staff.

The three alternative structures are described on the following pages.

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Organizational Structure Alternative 1 –

Clerk of the Supreme Court

Deputy Clerk Senior Staff Attorney

Court Clerk Staff Attorney

Court Clerk Staff Attorney Court Clerk

Staff Attorney Court Clerk

Court Clerk Staff Attorney

Case Management Team Screening Unit

Alternative 1 places ongoing reliance upon a senior central staff attorney to oversee the case and motion assignments to the other staff attorneys. This arrangement is similar to the present structure, with the Clerk of the Supreme Court simply assuming the indirect supervisory role of the Director of Appellate Screening. However, under the present arrangement and press of the workload, management of the staff attorneys’ case assignments has not included a routine review of the status of assigned work. Much of the assigned work, particularly motions, has not been completed as expeditiously as the Court desires. In addition, communications between the Screening Unit and the Court has not been sufficient to provide the staff attorneys with a common understanding of the Court’s needs regarding case statements and motion memoranda. The case statements and motion memoranda presently appear to include a restatement of facts and related discussion of issues that is more extensive than needed by the court. As a result, the time and effort devoted to these tasks are greater than necessary.

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Organizational Structure Alternative 2 –

Clerk of the Supreme Court

Deputy Clerk

Court Clerk Staff Attorney

Court Clerk

Staff Attorney Court Clerk

Staff Attorney

Court Clerk

Staff Attorney

Court Clerk

Staff Attorney

Case Management Team Screening Unit

Alternative 2 clearly provides for the involvement of the Clerk of the Supreme Court in fulfilling the responsibilities for ongoing supervision of the staff attorneys. The rationale for this second alternative is to help establish a process for reviewing and coordinating the status of assigned work, as previously discussed, to maintain regular communication and consistency with the staff attorneys and continue to meet the justices’ immediate needs as well as any evolving organizational priorities. In addition, the efforts of the senior staff attorney could then be applied to adjudicative rather than administrative functions. The central staff screening unit represents an integral part of the adjudicative process and its priorities and responsiveness to the court’s needs are essential to the timely and effective resolution of motions and routing of cases.

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Organizational Structure Alternative 3 –

Clerk of the Supreme Court

S taff A ttorney Court Clerk

S taff A ttorney

Case Management Team Screening Unit

Organizational Alternative 3 envisions the Clerk of the Supreme Court fulfilling the ongoing supervisory responsibilities pertaining to the Screening Unit in the same manner as Alternative 2. A defining characteristic of this structure is the reallocation of the Deputy Clerk position to the Screening Unit. The Deputy Clerk is an attorney and, having practical experience working with motions and case screening, can provide an immediate boost to the productive capacity of the Screening Unit.4 However, this alternative also requires the Clerk of the Supreme Court to absorb the direct supervision of all the court clerks and the reassignment of duties pertaining to procedural motions, which are currently performed by the Deputy Clerk. (As discussed on page 21, the Court should consider whether Iowa R. App. P. 21.34 (1) and (2), and any other related rules, should be revised to provide for delegation of the tasks related to procedural motions to an appropriate staff member.) In addition, the Court should evaluate this alternative in terms of the increased supervisory demands it would place on the Clerk of the Supreme Court

4 This workflow study did not include an assessment of staffing levels in the Screening Unit in terms of the appropriate balance of the number of staff attorneys relative to the volume of adjudicative work assignments.

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relative to the benefits of increasing capacity of the Screening Unit. This evaluation should also weigh these impacts in light of the current Clerk’s planned retirement and the desired qualifications of his replacement.

While all of the alternative organizational structures depicted above provide, in varying degrees, for management supervision and coordination of adjudicative assignments within the Screening Unit, Alternatives 2 and 3 appear to align more closely with the Court’s goals and incorporate a process for staff accountability. The selection between these alternatives should be made after careful consideration of the respective net benefits and related effects.

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IV. Conclusion

In the development of procedural changes, the implementation of new operational practices and the adjustments necessitated by organizational reallocations, it is essential to approach the tasks with a realization that some adjustments and mid-course corrections may be necessary.

The analysis and recommendations included in this report represent the professional judgments of the NCSC project team based upon their multiple discussions with members of the bench, court management and various staff members, as well as their observations and information on parallel processes in similar state supreme courts. Implementation of the reorganization plans, including associated procedural changes and operational practices, will highlight the value of conducting regular assessments and developing mid-course adjustments. The Court should evaluate its experiences and observe the operational impacts after working with these changes to determine whether the desired results are obtained or to make any mid-course adjustments as quickly as possible. Experience is a great and wonderful teacher.

The cooperation of and enthusiastic participation in this study by the justices and staff is very much appreciated and contributed greatly to its effectiveness. It has been a privilege for the National Center for State Courts project team to work with the Chief Justice, Associate Justices, the State Court Administrator, the Clerk of the Supreme Court and the many staff members of the Iowa Supreme Court.

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