Court of Appeals of New Mexico

Calendaring & Process Reengineering

June 2019

Final Report

John Doerner, Project Director Larry Royster, Project Consultant Daniel J. Hall, Vice President Court Consulting Services 707 Seventeenth Street, Suite 2900 Denver, CO 80202-3429 (303) 293-3063

© 2019 National Center for State Courts

This report was prepared for the New Mexico Court of Appeals and was funded by a technical assistance grant from the State Justice Institute (“SJI”), a federal program dedicated to improving the quality of justice in state courts and fostering innovative, efficient solutions to common issues faced by all courts. Consulting services were provided by the National Center for State Courts (NCSC). The NCSC is an independent, private nonprofit corporation, chartered in 1971, targeting the betterment of courts nationwide and around the world. This study assesses the organization and operations of the Court of Appeals in light of procedural and performance issues contributing to delay, systemic inefficiencies and productivity. The report contains recommendations designed to improve overall efficiencies with respect to the Court’s organizational structure, leadership and governance and the appellate process. The points of view and opinions expressed in this report are those of the authors as agents of the National Center, and do not necessarily represent the official position or policies of SJI, the New Mexico Judicial Branch, the judges and staff of the Court of Appeals, or the Supreme Court of New Mexico.

TABLE OF CONTENTS

A. Introduction ...... 1 B. Index of Recommendations ...... 2 C. Comparative Data ...... 5 D. Caseflow – Inventory and Backlog ...... 8 Forecast of the General Calendar Backlog: ...... 11 E. Judges of the Court of Appeals ...... 14 New Judge Onboarding: ...... 17 F. Role of the Chief Judge ...... 18 G. Office of the Clerk of Court ...... 20 H. Division of Appellate Court Attorneys ...... 21 I. Summary Calendar Process on Criminal Appeals ...... 24 J. Appellate Mediation Program ...... 28 K. Reporter of Decisions ...... 29

New Mexico Court of Appeals Calendaring and Process Reengineering Final Report

A. Introduction

The New Mexico Court of Appeals (NM COA) has experienced a growing backlog of cases in recent years. In order to address the persistent and expanding backlog and evaluate its operations, the NM COA applied for and was awarded a grant by the State Justice Institute (SJI). With the funding secured, the Court contracted with the National Center for State Courts (NCSC) to conduct this study. The NCSC was also charged with gathering comparative information from similarly sized state appellate courts, making recommendations to reduce the backlog and addressing process inefficiencies or opportunities for organizational restructuring. The NM COA was created by a constitutional amendment approved by the electorate in a special election held on September 28, 1965. The Court began operations in 1966 under original enabling legislation that established a court consisting of four judges. The Court was expanded to five judges in 1972, seven judges in 1978 and was expanded again to its current size of ten judges in 1991.1 The NM COA has two locations: Santa Fe and Albuquerque. NMSA 1978, Section 34-5-7 requires that “(t)he headquarters of the court and the clerk's office shall be located at the seat of government”, necessitating the Santa Fe location although the majority of judges and staff are based in the Albuquerque facility. Table 1 - New Filings Total New Fiscal Year The Court has jurisdiction to hear appeals in most case types Filings from the New Mexico District Courts and certain state government 2007 976 agencies, with a few exceptions. These exceptions are criminal cases in 2008 932 which life imprisonment is sought, appeals from the Public Regulation 2009 928 Commission, and cases involving the writ of habeas corpus. These 2010 881 types of appeals bypass the Court of Appeals and are filed directly in 2011 834 2012 878 the New Mexico Supreme Court. 2013 734 2014 891 The NM COA routinely receives between 800 and 900 new 2015 939 filings each fiscal year. The table below shows the total new filings by 2016 864 fiscal year, from 2007 through 2018. The average annual number of 2017 826 new case filings over this twelve-year time period was 883.5. 2018 919 This report is organized in discrete sections based on various organizational divisions of the NM COA as well as several that focus on specific topics, such as the backlog and comparative appellate court data. As a natural occurrence, there is some inherent overlap and related concepts between the various sections.

1 Donnelly & Minzner, History of the Court of Appeals, 22 N.M. L. Rev. 595, 597 (1992), available at http://digitalrepository.unm.edu/nmlr/vol22/iss3/2/

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B. Index of Recommendations

Description Section Page No. Recommendation 1 – When it is determined that a memo opinion is appropriate for disposition of an appeal, the NM COA should refrain from drafting a lengthy opinion Caseflow – Inventory and that includes unnecessary discussion of the facts and Backlog 8-11 applicable law. NMRA 12-405 details the circumstances under which a memo opinion or non-precedential order may be used. Recommendation 2 – In accordance with the New Mexico Supreme Court’s Order No. 19-8500-004, the NM COA must prepare a plan for elimination of the current general calendar backlog. To accomplish this, the NM COA should Caseflow – Inventory and determine a target date by which it intends to eliminate Backlog Forecast of the the backlog. The forecasts above demonstrate that the 11-14 General Calendar Backlog average number of general calendar dispositions per month must be increased. The backlog elimination plan must also recognize and account for the specific time requirements listed in Order No. 19-8500-004 as well as in legislative performance standards reporting. Recommendation 3 – The NM COA should continue the suspension of the standard practice of not assigning general calendar cases to the calendar judge. During this period of focus and attention on elimination of the general calendar backlog, all judges must be fully involved in drafting opinions. Recommendation 4 – The NM COA should make all efforts, recognizing that budgetary limitations will come Judges of the Court of 14-17 into play, to make appropriate educational opportunities Appeals available to judges and legal staff. These educational offerings should prioritize critical topics such as drafting opinions efficiently and appellate court collegiality. Recommendation 5 – The NM COA should establish guidelines that set forth the various opinion writing rules and preferences to ensure consistency in style, structure, format, and quoting and citing of legal authority. Recommendation 6 – The NM COA should establish an effective new judge onboarding protocol including sessions and materials on court culture, explanations of court policies and procedures, case processing standards, Judges of the Court of the organization of the court and its various divisions, etc. Appeals 17-18 In addition, an experienced judge should be assigned for New Judge Onboarding each new judge to serve as a resource in helping them to better understand and navigate the sometimes complicated or unexplained processes. Given that 5 of

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the 10 judges have been with the Court for under six months, some aspects of this recommendation could be applicable for them. Recommendation 7 – Consider the use of senior judges as described above to serve a dual purpose of new judge mentorship as well as increased opinion production. Recommendation 8 – The NM COA should refine and revise its overall governance structure. Specific recommended changes include changes in the chief judge election process; establishment of an executive F. Role of the Chief Judge 18-19 committee; designating liaison judges to work with the various court divisions and/or specific project areas; and increased delegation and reliance on the clerk of court to also serve as a court administrator. Recommendation 9 – Recognizing that this may be a long-term option, the NM COA should explore the feasibility moving all clerk of court staff and functions to the Albuquerque location. Recommendation 10 – NM COA should consider adding an attorney position to either the Clerk’s Office or in the Division of Appellate Court Attorneys to perform G. Office of the Clerk of preliminary jurisdictional functions and address 20-21 Court substantive motions. Recommendation 11 – The NM COA should initiate discussions with the New Mexico Supreme Court to explore the feasibility of appointing a single financial manager to oversee the relevant duties for both courts, potentially making an FTE available for assignment of other responsibilities. Recommendation 12 – Upon addressing the relevant budgetary issues, the NM COA should make the current interim chief staff attorney and supervisor positions permanent; recruit and appoint new staff attorneys; H. Division of Appellate 21-24 consider requesting a compensation study regarding staff Court Attorneys attorney duties and salary levels; and investigate technological options for conversion of staff attorney files to MS Word. Recommendation 13 – Because the summary process is time intensive, particularly in criminal appeals, the NM COA should consider an alternative process. To minimize disruption and ensure that rights of appellants are upheld I Summary Calendar while efficiency is improved, implementation could be Process on Criminal 24-28 done as a pilot project covering appeals from selected Appeals districts before going statewide. A pilot project would also allow adjustments in the particular steps to be made in a timely fashion, as appropriate. The alternative process described in this report would require working

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with the trial courts, the New Mexico Public Defender’s Office and the New Mexico Attorney General’s Office to ensure that all stakeholders are engaged. Recommendation 14 – The NM COA should consider J. Appellate Mediation establishing an appellate mediation program operated 28-29 Program externally. Recommendation 15 – Given the need to address the backlog, funding for the reporter of decisions is better used to increase staffing in the DACA. The paralegals, now being overseen by the chief judge, should continue to K. Reporter of Decisions 29-30 perform technical reviews on opinions. At the same time, efforts should be made to provide training as necessary to ensure that chambers begin preparing camera-ready opinions.

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C. Comparative Data

The NCSC consultants identified six similarly-sized state appellate courts from which to gather comparative data. The determination was made on the basis of the number of sitting judges and the number of new case filings in the most recently reported year. Comparative data can provide insight about procedures, staffing and resource allocations, relative workload and other attributes of an appellate court. However, such comparisons must always be taken with a “healthy dose of salt”. Across states, similar courts frequently exhibit a great deal of variability in jurisdiction, rules of procedure, staffing allocations and funding, operational practices and culture. Culture includes the institutional norms and expectations with respect to how an individual court conducts its business. These comparative courts are:

 California Court of Appeal, 5th District  Connecticut Appellate Court  Texas 1st District Court of Appeals  Texas 14th District Court of Appeals  Utah Court of Appeals  Washington Court of Appeals, Division 1

Table 2 New California Connecticut Texas Texas Utah Washington COMPARATIVE APPELLATE Mexico Court of Appellate 1st 14th Court of Court of COURTS – JUDGES, CASE Court of Appeal, Court District District Appeals Appeals, Div FILINGS & OPINIONS Appeals 5th Court Court 1 District Full-time Appellate Judges 10 10 9 9 9 7 10 Annual Total Case Filings 919 1,189 1,360 1,063 1,073 836 1,439 (Most recent) Petitions/Discretionary Cases N/A N/A 55 0 0 0 N/A (Inc. in total) FILINGS PER JUDGE 92 119 151 118 119 119 144 Annual Total Opinions Issued 552 841 480 1,083 1,049 890 644 Memo or Short Form Opinions 325 n/a 90 527 517 650 N/A (inc. in total) OPINIONS PER JUDGE 55 84 53 120 117 127 64

NOTES: The Washington Court of Appeals has Commissioners who are given limited judicial authorities. This includes ruling on motions and issuing show cause orders. Show cause orders will sometimes include a hearing to resolve; commissioners will preside over these hearings and make a ruling. However, all commissioner rulings are

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subject to review by a judge. Commissioners also review certain types of cases and prepare draft opinions for a judicial panel. Among these appellate courts, New Mexico has the lowest number of case filings per judge. Some of the comparable courts also use the services of senior, or retired, judges more extensively than the NM COA, although that data was not captured. New Mexico also shows the lowest number of opinions per judge; however, many courts use differing terminology to describe the various formal opinions, memo opinions, orders and dispositions. The NM COA issued 232 other dispositions, including orders, denials, NMRA 12-204 decisions, etc. If these other dispositions are included, NM COA had 78 total dispositions per judge.

Table 3 New California Connecticut Texas Texas Utah Washington COMPARATIVE APPELLATE Mexico Court of Appellate 1st 14th Court of Court of COURTS - STAFFING Court of Appeal, Court District District Appeals Appeals, Div Appeals 5th Court Court 1 District Full-time Chambers Law 20 20 26 18 18 14 20 Clerks - Total Long-term/Permanent Law 3 10 16 18 Clerks (inc. in total) Short-term Law Clerks (inc. 17 16 2 0 in total) IN-CHAMBERS LAW CLERKS 2.0 2.0 2.9 2.0 2.0 2.0 2.0 PER JUDGE Central Staff Attorneys 12 9 6 5 5 4 5 CENTRAL STAFF ATTORNEYS 1.2 0.9 0.7 0.6 0.6 0.6 0.5 PER JUDGE Clerk's Office Staff 7 25 17 6 5 13 Reporter of Decisions Staff 1 SCT 14 (inc. 0 0 Supreme Supreme Court Court) Position

NOTES: The New Mexico Court of Appeals level of legal staffing is relatively good with respect to the comparative courts. Five of the six comparative courts have 2 chambers law clerks per judge, as New Mexico does (although this is a very new development for the New Mexico court). Only the Connecticut Appellate Court has more, with an average 2.9 chambers law clerk per judge. All of the comparable courts have fewer central staff attorneys per judge than New Mexico does. The other courts range from 0.5/judge to 0.9/judge; New Mexico has 1.2/judge and historically had 1.6/judge (although that number occurred at a time when the judges had only a single chambers clerk).

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Table 4 New California Connecticut Texas 1st Texas Utah Washington COMPARATIVE APPELLATE Mexico Court of Appellate District 14th Court of Court of COURTS – CHIEF JUDGE Court of Appeal, Court Court District Appeals Appeals, Div Appeals 5th Court 1 District Chief Judge - Selected by Bench Chief Chief General General Bench Rotate on Vote Justice of Justice of Election Election Vote Seniority Supreme Supreme Court Court Chief Judge - Term 2 yr. Indefinite Indefinite 6 yr. 6 yr. 2 yr. 2 yr. Chief Judge - Active Role in No Yes Yes Yes Yes Yes No Caseflow Management

NOTES: The Utah Court of Appeals is the only one of the comparative courts that selects its chief judge by bench vote, as New Mexico does. In New Mexico, the judge with the greatest seniority, who has not already served as chief judge, has always been elected by the bench to serve as chief judge, on a rotational basis. This is similar to the Washington Court of Appeals, Division 1, although that court dispenses with conducting a bench vote . The position of chief judge in the Texas courts is a specific seat which is decided by general election. The Chief Judges for the California Court of Appeals, 5th District and the Connecticut Appellate Court are appointed by the chief justice of the supreme court for indefinite terms. Those states that provide for chief justice appointment of the chief judge typically stipulate that selection should be based on attributes such as management experience, administrative skills and leadership qualities rather than seniority.

Table 5 New California Connecticut Texas 1st Texas Utah Washington COMPARATIVE Mexico Court of Appellate District 14th Court of Court of APPELLATE COURTS – Court of Appeal, Court Court District Appeals Appeals, Div MEDIATION Appeals 5th Court 1 District ADR/Mediation Program Yes* Yes Yes Yes Yes Yes Rare Court-operated or External Court Court External External Court N/A External

NOTES: Five of the six comparative courts have some form of appellate mediation program. Like New Mexico has had, the California Court of Appeal 5th District, the Connecticut Appellate Court and the Utah Court of Appeals have a court-operated program. The Washington Court of Appeals, Division 1 does not have a formal mediation program, although on rare occasions a court commissioner will facilitate settlement discussions if the parties request it. The Texas courts utilize external mediation services.

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*The NM COA had an active Court-operated mediation program until recently. Several months ago the mediator left her position with the Court so the Court is now exploring the use of outside mediators. At the time of this report, the outside mediation program has not been implemented.

Table 6 New California Connecticut Texas 1st Texas Utah Washington COMPARATIVE Mexico Court of Appellate District 14th Court of Court of APPELLATE COURTS – Court of Appeal, Court Court District Appeals Appeals, Div BACKLOG Appeals 5th Court 1 District Current Backlog Yes Yes No No No Yes No 361 13 24 Extent of Backlog cases2 Months N/A N/A N/A cases N/A

NOTES: Like New Mexico, the California Court of Appeal, 5th District and the Utah Court of Appeals currently have a case backlog, based on each courts unique definition of what constitutes a backlog. These courts, and some of those that indicated they did not have a current backlog, reported that their approach has been to increase the rate of case assignments until the backlog is eliminated and the inventory reduced to an acceptable level.

D. Caseflow – Inventory and Backlog

The NCSC consultants had initial discussions with Court leadership by telephone in November 2018. The Court reported that it had a backlog of 376 cases at June 30, 2018 that were either submitted to panels of judges for decisions (172 cases) or awaiting submission to panels (204 cases). More recent information from the NM COA reports the total backlog at 361 cases (123 submitted and 238 awaiting submission) as of May 31, 2019. The New Mexico Supreme Court became so concerned with the Court of Appeals’ backlog that it assigned a senior justice to exercise oversight of the Court in July 2018. Due to the Court of Appeals’ perceived lack of progress in reducing the backlog, the Supreme Court issued a case management order on December 21, 2018, exercising superintending control over the Court of Appeals because of what it deemed “a persistent and historically large backlog of undecided cases.” Case Management Order No. 18-8500-018, p 1. Among other things, the order directed that opinions in all submitted cases be filed by January 30, 2019 and that, going forward, the Court of Appeals judges are to file at least four opinions per month within two

2 As of May 31, 2019. These represent general calendar cases only.

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months of the authorship assignments. This case management order was amended and replaced on April 9, 2019 by Order No. 19-8500-004. This subsequent order provided that:

 … that the regular submission of ready cases shall proceed in the Court of Appeals normal policies and procedures …  … after the assignment of any existing or future case to a judge for authorship, each Court of Appeals judge shall circulate such case no later than three (3) months and file such case no later than six (6) months after the case was assigned for authorship.  … by May 31, 2019, the Court shall file all submitted cases that are six months old or greater pursuant to any process or reassignment as the Court of Appeals deems appropriate.  … the Court of Appeals disposition rate for General Calendar Cases shall exceed one hundred percent (100%) annually.  … all Court of Appeals judges shall devote as much time as is necessary to meet the case processing deadlines and requirements in this order, which shall include working evenings, weekends, and holidays.  … the Chief Judge of the Court of Appeals, in consultation with the judges of the Court of Appeals, shall formulate and present … no later than June 30, 2019, a comprehensive, court-wide plan to comply with mandatory performance measures required by the Legislative Finance Committee and to address the Court’s caseload backlog. The plan shall include tracking the time to disposition for General Calendar cases from the date the case is placed on the Ready List to the date of filing and reducing the caseload backlog by no fewer than thirty (30) cases per month.  … the Chief Judge of the Court of Appeals shall present … its progress related to the mandatory performance measures and the Plan quarterly, beginning September 30, 2019.  … the Chief Judge of the Court of Appeals, in consultation with the judges of the Court of Appeals, shall formulate a plan for all judges of the Court of Appeals who assumed office on or after 2018 to receive additional judicial training and education.

There are multiple stages to the ‘active’ or pending caseload in any court. In appellate courts, these stages include: 1. cases that have recently been filed and are in the record preparation stage; 2. cases in which parties are in the process of preparing briefs; 3. those in which briefing has been completed; 4. cases that are awaiting submission or ‘assignment’ to a panel; and 5. those that have been submitted to a panel but not yet decided.

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The NM COA has traditionally used the term ‘backlog’ to describe all of those cases assigned to the general calendar that are in the fourth and fifth stages listed above. More commonly, the pejorative term of backlog is used in courts to denote cases that have aged beyond the expected volume or length of time within which it should be moved to the next stage or decided. Those pending cases that are within expectations are referred to as the inventory. The Court has recognized that there is some intrinsic number of cases that will naturally reside in the fourth or fifth stages but not be unduly delayed. The 361 cases reported by the NM COA as comprising the May 2019 backlog consist both of those that are within the natural inventory as well as those beyond the accepted volume of 210. Through the remainder of this report, we will use the term backlog to describe cases that have exceeded the Court’s accepted volume of inventory. In our discussions with the NM COA judges, they indicated that a target inventory of 120 submitted cases and 90 cases awaiting submission represents an appropriate level of inventory and the point at which the backlog would be considered to be eliminated. The target number of submitted cases equates to 12 cases per judge. This represents general calendar assignments for the prior two-and-a-half to three months at a rate of 4 case assignments per month, or three-and-one-third to four months at the Court’s typical rate of 3 case assignments per month. Multiple factors have contributed to the existence and extent of the current case backlog. Because of budget cuts in Fiscal Year 2015-2016, the Court requested that the judges appointed or elected delay their start date in order to realize budgetary savings that could be used for other essential needs. In addition, some staff attorney positions were left unfunded or unfilled during the economic recession and have remained below historical staffing levels ever since. The reduction in staff attorneys resulted in the discontinuation of ‘General Calendar Projects’ in which staff attorneys previously reviewed certain general calendar cases and prepared draft opinions for consideration by a judicial panel. Dispositions also declined substantially beginning in 2015 to mid-2018 as a number of then-sitting judges were preparing for retirement or campaigning.3 Finally, the number of dispositions may be further attributed, at least in part, as a result of memorandum opinions becoming longer, and including longer and more detailed discussions of the facts and the law, in recent years. Lengthier memo opinions consume more time to draft and can result in fewer opinions being written. At one time, the NM COA memo opinions were viewed as “letters to the parties,” with minimal factual statements (because the parties were already well aware of the facts of their case) and with just enough legal analysis and citations to authorities to explain the reasons for the Court’s decision. Lately, memo opinions have included lengthy factual statements and full legal analyses such that many are indistinguishable from formal opinions. Several judges and staff members opined to the NCSC team that the current iteration of memo opinions is unnecessary

3 As in many appellate courts, the NM COA does not make case authorship assignments to judges in their final months prior to an announced retirement to ensure that the judge has sufficient time to finalize and issue opinions on the previously assigned cases.

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and that dispositions could increase if there is a return to the former practice of shorter, more conclusory memo opinions. Because memo opinions have no jurisprudential significance and are binding only on the parties, this is a valid point. Short, non-precedential appellate opinions are common practice in many intermediate appellate courts and they run a range from a simple statement of judgment affirmed to a more typical 2 to 5 pages. NMSA 34-5-11 requires that only “decisions of the court shall be in writing with the grounds stated …” allowing the use of short-form memo opinions as described above. Recommendation 1 – When it is determined that a memo opinion is appropriate for disposition of an appeal, the NM COA should refrain from drafting a lengthy opinion that includes unnecessary discussion of the facts and applicable law. NMRA 12-405 details the circumstances under which a memo opinion or non-precedential order may be used.

 Forecast of the General Calendar Backlog:

The following analysis shows various scenarios, differing with respect to the expected number of opinions filed per month, that could result in elimination of the backlogged, general calendar cases. In this analysis, the average number of cases assigned to the general calendar is assumed to remain level. The anticipated volume of general calendar opinions will vary among the scenarios. Elimination of the backlogged general calendar cases would be achieved when the remaining inventory of general calendar cases falls below the target of 210. In reality, the NM COA must carefully monitor the number of cases assigned to the general calendar, as it will inevitably vary from the average and impact this forecast. In addition, the NM COA should review the target inventory of 210 cases that are either awaiting judicial assignment or have been assigned and awaiting decision to ensure that this volume is consistent with the case processing timelines specified in the Supreme Court’s case management order and the upcoming mandatory performance measures.

Table 7: General Calendar Opinions Filed Fiscal Year GC Opinions Average Average per Filed per Mo. Mo. Per Judge 2008 315 26.3 2.6 2009 258 21.5 2.2 2010 255 21.3 2.1 2011 311 25.9 2.6

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Table 7, continued: General Calendar Opinions Filed Fiscal Year GC Opinions Average Average per Filed per Mo. Mo. Per Judge 2012 313 26.1 2.6 2013 290 24.2 2.4 2014 284 23.7 2.4 2015 243 20.3 2.0 2016 240 20.0 2.0 2017 240 20.0 2.0 2018 227 18.9 1.9 11-Yr. Avg. 270.5 22.5 2.3 Last 5Yr. Avg. 246.8 20.6 2.1

Scenario 1 – This scenario assumes continued resolution of general calendar cases at the most recent 5-year average rate of 20.6 decisions per month.

Table 8 Scenario 1 - Forecast FY2020 FY2021 FY2022 Forecast Inventory/Backlog at 5-Yr Inventory/Backlog Average of 20.6 GC Decisions per FY Beginning Total 361 405 449 Month Average New General 291 291 291 600 449 493 Calendar Assignments 405 General Calendar Cases 247 247 247 400 Decided (2014-18 Avg of 200 20.6/mo.) Projected FY Ending GC 405 449 493 0 Inventory/Backlog FY2020 FY2021 FY 2022

Under scenario 1, which anticipates resolution of general calendar cases to continue at the average rate of the period from Fiscal Year 2014 through 2018, the number of combined inventory/backlog cases would continue rapid growth. By the end of FY2022, the inventory/backlog is forecast to be 493, exceeding the target goal of 210 by 283 cases.

Scenario 2 – This scenario assumes continued resolution of general calendar cases at the most recent 11-year average rate of 22.5 decisions per month.

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Table 9 Scenario 2 - Forecast FY2020 FY2021 FY2022 Forecast Inventory/Backlog at Rate Inventory/Backlog of 20.6 GC Decisions per Month FY Beginning Total 361 382 403 600 Average New General 291 291 291 500 382 403 424 Calendar Assignments 400 General Calendar Cases 270 270 270 300 Decided (2008-18 Avg of 200 22.5/mo.) 100 Projected FY Ending GC 382 403 424 0 FY2020 FY2021 FY 2022 Inventory/Backlog

Under scenario 2, which anticipates resolution of general calendar cases to continue at the average rate during the period from Fiscal Year 2008 through 2018, the number of combined inventory/backlog cases would experience a slow rate growth. By the end of FY2022, the inventory/backlog is forecast to be 436; exceeding the target goal of 210 by 226 cases.

Scenario 3 – This scenario assumes an increased rate resolution of general calendar cases at 30 decisions per month.

Table 10 Scenario 3 - Forecast FY2020 FY2021 FY2022 Forecast Inventory/Backlog at Rate of Inventory/Backlog 305 GC Decisions per Month FY Beginning Total 361 292 223 600 Average New General 291 291 291 Calendar Assignments 400 292 223 General Calendar Cases 360 360 360 200 154 Decided (30.0/mo.) Projected FY Ending GC 292 223 154 0 Inventory/Backlog FY2020 FY2021 FY 2022

Under scenario 3, anticipating resolution of general calendar cases at an increased rate of 30 per month, the number of combined inventory/backlog cases would decline quickly. The total would reach the target goal around August/September of 2021. By the end of FY2022, the inventory/backlog is forecast to be 154; under the target goal of 210 by 56 cases. This forecast analysis of the NMCOA’s inventory/backlog demonstrates that the delay in resolution of general calendar cases is not only the result of recent circumstances but has been

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a long-time in the making. Rather, the rate of resolution has been too low to maintain the Court’s accepted inventory level since at least 2008 but has become even more problematic in the past 5 years. During the first 8 months of FY 2019, the NM COA has increased its resolution of general calendar cases to a rate of 23.9 per month. This has been done despite a lower rate in the early months of the fiscal year when case assignments were halted for several judges and 4 new judges were inducted in January of 2019. However, this rate must increase further; an average of 24.25 cases per month must be resolved simply to achieve parity with the expected number of general calendar assignments of 291 cases per year. Reducing the total inventory/backlog will require more resolutions; as demonstrated in scenario 3, in order to bring the inventory/backlog number to the target of 210 by late summer of 2021 will require a rate of 30 general calendar resolutions per month.

Recommendation 2 – In accordance with the New Mexico Supreme Court’s Order No. 19-8500-004, the NM COA must prepare a plan for elimination of the current general calendar backlog. To accomplish this, the NM COA should determine a target date by which it intends to eliminate the backlog. The forecasts above demonstrate that the average number of general calendar dispositions per month must be increased. The backlog elimination plan must also recognize and account for the specific time requirements listed in Order No. 19-8500-004 as well as in legislative performance standards reporting.

E. Judges of the Court of Appeals

The New Mexico Court of Appeals is comprised of ten judges who are assigned chambers in either Santa Fe or Albuquerque. The bench has undergone a significant degree of recent turnover. Since 2015, twenty-one judges have served on the ten-member court, with only three of the judges from 2015 still on the bench today. Six judges have joined the Court this year. The most senior judge has served on the Court for approximately eleven years, while the remaining four judges have been in their positions for seven years, six-and-a-half years, two years, and fifteen months. One of the Court’s ten judges served on a rotating assignment as the “Calendar Judge” while the other nine received general calendar case assignments. The standard practice has been that the calendar judge does not receive general calendar case assignments; that practice has recently been suspended in response to the growth of the general calendar backlog.

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Until recently, each judge employed one paralegal and one law clerk. In 2018, the Court changed its model for staffing the judges’ chambers so that each judge now has two law clerks, but no individually assigned paralegal. Under the former single-clerk system, law clerks typically served for one or two years before leaving the Court for employment elsewhere. Now with two law clerks, the judges may retain one of them for a longer, perhaps indefinite, period of time. As a condition of the change to a two-clerk model, judges are expected to have all opinions be considered “camera-ready” before sending them on for technical review. This is because the paralegal positions will not be replaced as those employees retire or resign. While some budgetary issues will need to be addressed, having a permanent law clerk would bring stability to the judge’s chambers by minimizing dips in productivity when the other clerk has an extended absence or during the transition period of hiring a new clerk. The long- term clerk would also be able to train and supervise the rotating clerks, and perhaps student externs from the nearby University of New Mexico School of Law—a burden that might otherwise fall squarely on the judge. Offering judicial externships can be an excellent way to identify and recruit future law clerks for chambers, if not also increase productivity at little or no cost to the Court. During the NCSC team’s initial visit, several judges commented on the scarcity of educational opportunities available to them, particularly with regard to appellate opinion writing. Clearly, education and training are essential for all judges and their staffs. For the NM COA, it is especially critical given that half the bench assumed office since January of this year and that all ten judges recently added a second law clerk to their chambers. Judicial education not only enhances professionalism and promotes the rule of law but, on a practical level, it can ease the uncertainty and stress of a new judge and hasten his or her transition to full productivity and competence. In the past, the New Mexico Supreme Court and Court of Appeals held joint retreats every two years that included training components. Apparently, there has not been a retreat for several years. To the extent that budget and time will permit, the Court of Appeals, whether jointly with the Supreme Court or not, should resume having off- site retreats because they provide a unique opportunity to not only receive education and training, but also establish Court policies and build comradery. For courts with tight budgets, like the NM COA, judicial education may be considered an unaffordable luxury. However, affordable educational opportunities exist both inside and outside the Court. For example, the New Mexico Judicial Education Center,4 which is associated with the UNM Law School and is located next door to the Court’s Albuquerque office, may be willing and able to provide some appellate-specific educational sessions, such as opinion writing (especially proficiency in writing short memo opinions), and standards of review, even though it primarily caters to district court judges and staff. In addition, the National Judicial College in

4 The Judicial Education Center’s website (http://jec.unm.edu/) contains information about its conferences and events, as well as links for accessing numerous manuals, online training sessions, and other legal resources.

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Reno, Nevada offers on-site and online courses5 and there are many books and articles on appellate judging, maintaining collegiality and opinion writing.6 Perhaps the most relevant training sessions would be those conducted by the Court’s senior judges, clerk of the court, and staff attorneys given their institutional knowledge of the policies and procedures of their specific departments. In conjunction, the Court’s Policies and Procedures manual should be reviewed and updated.7 It can then serve as a “new judge orientation manual,” providing new judges with essential information about the Court and the requirements and expectations of being a judge. The NM COA should establish guidelines that set forth the various opinion writing rules and preferences to ensure consistency in style, structure, format, and quoting and citing of legal authority.8 These guidelines could form the basis for internal educational sessions on legal writing for the judges and staff.

Recommendation 3 – The NM COA should continue the suspension of the standard practice of not assigning general calendar cases to the calendar judge. During this period of focus and attention on elimination of the general calendar backlog, all judges must be fully involved in drafting opinions. Recommendation 4 – The NM COA should make all efforts, recognizing that budgetary limitations will come into play, to make appropriate educational opportunities available to judges and legal staff. These educational offerings should prioritize critical topics such as drafting opinions efficiently and appellate court collegiality.

5 As an example, the National Judicial College is offering an online training session from July 29 through August 30, 2019, for new judges entitled Taking the Bench: An Interactive, Online Course for New Judges. The course has a tuition fee of $299 but scholarships are available. 6 See e.g., J. E. Cote, A Practical Guide to Appellate Judging, 16 The Journal of Appellate Practice & Process15 (2015) (available at http://lawrepository.ualr.edu/appellatepracticeprocess/vol16/iss1/2); Sarah M.R. Cravens, Involved Appellate Judging, 88 Marquette Law Review 251 (2004) (available at http://scholarship.law.marquette.edu/mulr/vol88/iss2/2); George, Joyce J., Judicial Opinion Writing Handbook, 5th ed (available for purchase on Amazon.com); Ruggero J. Aldisert, Opinion Writing, 3rd ed (available for purchase on Amazon.com); Judicial Writing Manual: A Pocket Guide for Judges, 2nd ed, Federal Judicial Center (2013) (available at https://www.fjc.gov/sites/default/files/2014/Judicial-Writing-Manual-2D-FJC-2013.pdf); S. I. Strong, Writing Reasoned Decisions and Opinions: A Guide for Novice, Experienced, and Foreign Judges, Journal of Dispute Resolution (2015) (available at https://scholarship.law.missouri.edu/jdr/vol2015/iss1/7); Sheppard, Jennifer, The "Write" Way: A Judicial Clerk's Guide to Writing for the Court, University of Baltimore Law Review: Vol 38: Issue 1, Article 9 (Fall 2008) (available at http://scholarworks.law.ubalt.edu/ublr/vol38/iss1/9); 7 The Policy and Procedures manual that is posted on the Court’s website was adopted on July 25, 2017, and apparently has not been updated since. 8 An example of a comprehensive opinion writing manual is available to download from the Michigan Supreme Court’s website at https://courts.michigan.gov/Courts/MichiganSupremeCourt/Documents/MiAppOpManual.pdf.

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Recommendation 5 – The NM COA should establish guidelines that set forth the various opinion writing rules and preferences to ensure consistency in style, structure, format, and quoting and citing of legal authority.

 New Judge Onboarding:

This is a critical issue at the present time due to the high degree of turnover among court of appeals judges over the past several years. However, it is an important topic even when judicial turnover returns to more regular levels. Onboarding can be defined as “the process of integrating a new judge or employee with the court and its culture, as well as providing them with the tools and information needed to become a productive member of the team.”9 Currently, the Court does not have a consistent and effective program for new judges. In many appellate courts, an experienced judge will take on the role of mentor for a new judge as they take the bench. The mentor judge gives guidance to the new judge with respect to court policies, procedures and understanding of its culture. The mentor also serves as a trusted source of information and advice on which the new judge can comfortably rely. This can occur through regular, planned brief meetings or ad hoc inquiries. Because the panels are composed of three judges, the remaining judge every month may not receive general calendar assignments because that judge also serves as the summary calendar judge. The five judges who joined the bench in 2019 are not being assigned to the summary calendar at present. However, beginning in January 2020, all ten judges will be placed in the summary calendar rotation. Removing the summary calendar judge from all general calendar assignments potentially results in the lost productivity of up to 48 general calendar opinions per year (i.e., four cases a month for 12 months). The Court could increase the number of monthly panels to four by utilizing two retired Court of Appeals judges, each of whom could sit on a panel with two current judges. The NCSC team discussed this idea with Court leadership in February 2019 after it was learned that several retired judges were volunteering their services to prepare opinions in a handful of cases for the Court. If the retired judges sit on panels with two newer judges, without being given their own opinion-writing assignments, they can focus on serving as mentors to those judges, helping them to understand the opinion writing process and manage their workloads. It would also be beneficial for the retired judges to sit with the same new judges for several consecutive months to ensure cohesiveness and completeness in their training and to allow the newer judges sufficient time

9 The definition of onboarding is adapted from Roy Maurer, Society for Human Resources Management (SHRM) to refer specifically to courts. The article ‘New Employee Onboarding Guide’ can be found at; https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/new-employee-onboarding- guide.aspx

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to acclimate to their new duties before assuming a full monthly workload (i.e., new judges on panels with a retired judge would be responsible for reviewing only four opinions of one colleague, not eight opinions of two colleagues).

Recommendation 6 – The NM COA should establish an effective new judge onboarding protocol including sessions and materials on court culture, explanations of court policies and procedures, case processing standards, the organization of the court and its various divisions, etc. In addition, an experienced judge should be assigned for each new judge to serve as a resource in helping them to better understand and navigate the sometimes complicated or unexplained processes. Given that 5 of the 10 judges have been with the Court for under six months, some aspects of this recommendation could be applicable for them. Recommendation 7 – Consider the use of senior judges as described above to serve a dual purpose of new judge mentorship as well as increased opinion production.

F. Role of the Chief Judge

In accordance with New Mexico law, NMSA 34-5-2, the Chief Judge for the Court of Appeals is elected upon majority vote of the sitting judges for a term of two years and, if reelected, may serve one succeeding term. In actuality, the NM COA chief judges are simply elected on a rotational basis according to seniority so that every judge has an opportunity to serve as chief judge before the selection process repeats itself.

The New Mexico Rules Annotated (NMRA) include specific provisions for the selection, duties and responsibilities of chief judges in the judicial districts and the metropolitan court. No rule, policy statement or governing document currently exists that prescribes responsibilities for the chief judge of the Court of Appeals. Administration of the Court has generally been managed by the bench as a whole, with guidance by the chief judge, to the extent the chief judge chooses to provide it. Across the country, appellate courts commonly designate certain judges to serve as administrative liaisons to the various divisions or on a judicial committee dealing with discrete topics such as budget, relations with the bar/public outreach, etc. These designated judges then report to the chief judge and the full bench regarding operations and issues within their specified areas. Until recently, the NM COA judges’ cumulative experience level, measured by length of service, was greater than it is presently, and the bench included multiple former chief judges. Given the recent degree of judicial turnover, growth in the backlog of cases along with pending mandated performance

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measures, and likely increases in jurisdiction, the governance structure of the NM COA should be better defined.

At a minimum, Rule 23-109 NMRA should be modified to include the Court of Appeals. Legislative revision of NMSA 34-5-2 would have to be enacted to allow for a three-year term as is included in the rule; as an alternative, the NM COA could establish a practice of electing a chief judge for two years with an expectation of re-election for at least one additional term, unless a majority of the bench votes for a change in leadership. A longer period of consistency in leadership will minimize potential shifting of priorities and better ensure attainment of the Court’s strategic objectives. In addition, consideration should be given to selecting the next chief judge not solely on the basis of seniority but also on functional attributes such as management experience, administrative skills and leadership qualities.

The NM COA should also establish a governance structure that designates judges as liaisons to the various divisions, i.e. clerk’s office, central staff, reporter of decisions, etc. These judges would then report back regularly to the full bench regarding their designated area at court administrative conferences.

Finally, the clerk of court should be given increased authority and responsibility with respect to court administration. This was reportedly how the NM COA operated under a previous clerk but such reliance on a staff administrative head was lost when that clerk left office. The chief judge and the clerk of court should be expected to function as a cohesive administrative team that oversees all aspects of the NM COA operations including budget and financial, human resources, facilities, performance measurement, information services, etc. The clerk/administrator should participate and contribute to all discussions on administrative matters that occur in the regular bench meetings. To ensure that this administrative structure and capacity is not lost due to turnover in the future, the NM COA should ensure that it is incorporated into the clerk of court job description and communicated to all judges and court staff.

Recommendation 8 – The NM COA should refine and revise its overall governance structure. Specific recommended changes include changes in the chief judge election process; establishment of an executive committee; designating liaison judges to work with the various court divisions and/or specific project areas; and increased delegation and reliance on the clerk of court to also serve as a court administrator.

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G. Office of the Clerk of Court

The Office of the Court Clerk operates in Court’s two locations, Santa Fe and Albuquerque. The Santa Fe location also houses the New Mexico Supreme Court, although the courts maintain entirely separate operations with no sharing of responsibilities among the two clerk’s offices. At present, 3 FTE clerks in the Santa Fe office process all pleadings and related documents in criminal and children’s code cases, while 3 FTE (2 clerks and the Court Manager) in the Albuquerque office process all pleadings and related documents in civil , domestic and other case types. In August 2017, the Court of Appeals adopted mandatory electronic filing and service for all attorneys in new and pending cases. Pro se litigants must continue filing paper copies with the Clerk’s Office which are scanned by staff and linked to the corresponding case record in Odyssey. Because payment of the docket fee cannot be made electronically at this time, litigants must mail or deliver checks to the Clerk’s Office within five days of the case being accepted for filing. The Chief Clerk is the only attorney in the Clerk’s Office. Besides supervising a staff of approximately seven employees in the two locations, the Chief Clerk and his staff are also responsible for the case assignment process that includes designating author judge and 1st and 2nd participant judges; managing IT, e-filing and CMS related issues; oversight of financial and human resources matters; customer service duties; final processing and issuance of court opinions; and other administrative matters. Currently, there are 2 FTE vacant positions that are assigned to the Clerk’s Office. Nationally, many appellate clerk’s offices have hired attorneys to handle duties such as immediately reviewing new cases for proper jurisdiction as they are filed, preparing and issuing show cause orders, processing and ruling on certain ministerial or procedural motions and similar tasks where legal training would be beneficial. Such a position would be a helpful addition to the NM COA but, based on the volume and expected complexity of these types of duties, such a position may not require a full-time position. If that is the case, there may be an opportunity for additional tasks and/or supervisory responsibilities to be assigned. It is also fairly common that this type of position be a part of the central staff attorneys. The NM COA should consider adding an attorney position either in the Clerk’s Office or in the Division of Appellate Court Attorneys to perform jurisdictional screening, substantive motions, and other related tasks. There are also opportunities to improve efficiencies in the use of Clerk’s Office staff. Ideally, the staff would all be housed in a single location. However, NMSA 34-5-7 requires that the “… headquarters of the court and the clerk's office shall be located at the seat of government” which is Santa Fe, while the primary facility is actually located in Albuquerque. A

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single location would utilize resources more efficiently while simplifying supervision, minimizing travel between the two locations and better enabling cross-training, backup when vacancies occur and reassignment of duties when staff members are behind in their work. The Court of Appeals now uses electronic files for all cases which has significantly reduced the amount of ‘face-to-face’ customer service. Most attorneys and litigants receive assistance from the Clerk’s Office by telephone, email or through the electronic filing system. While this may not be an immediate option, the Court should explore the viability of eventually assigning all clerk’s staff to the Albuquerque location. This could either be done by seeking a legislative revision of the statute or, in cooperation with the New Mexico Supreme Court, designating one or more of the Supreme Court clerks to accept any hard copy filings that are delivered to Santa Fe and serving as an information resource to any attorneys or litigants who appear in person. In addition, both the Court of Appeals and the Supreme Court presently have a full-time position for a financial manager. These individuals are responsible for managing the respective courts’ budgets, paying invoices, and related duties. During our conversations with the Clerk of the Court of Appeals and the Clerk of the Supreme Court, the possibility of having a single financial manager perform these tasks for both courts was discussed. The courts should pursue the feasibility of this idea. If deemed to be practical based on workload, establishment of a combined financial manager position could free up one FTE for assignment of other responsibilities.

Recommendation 9 – Recognizing that this may be a long-term option, the NM COA should explore the feasibility moving all clerk of court staff and functions to the Albuquerque location. Recommendation 10 – NM COA should consider adding an attorney position to either the Clerk’s Office or in the Division of Appellate Court Attorneys to perform preliminary jurisdictional functions and address substantive motions. Recommendation 11 – The NM COA should initiate discussions with the New Mexico Supreme Court to explore the feasibility of appointing a single financial manager to oversee the relevant duties for both courts, potentially making an FTE available for assignment of other responsibilities.

H. Division of Appellate Court Attorneys

The Division of Appellate Court Attorneys (DACA) is housed in two locations, Santa Fe and Albuquerque, and is currently comprised of fulltime staff attorneys who are permanent, professional staff of the Court of Appeals. The staff attorneys review all cases filed with the

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Court—direct appeals, interlocutory appeals, petitions for writs of certiorari, and motions— before submitting written recommendations and opinions to the calendar judge for appropriate calendaring assignments or dispositions. Thanks to effective leadership and a dedicated staff of attorneys, DACA has been a positive, stabilizing presence at the Court. But its continued effectiveness is threatened by several internal and external pressures. First, the number of staff attorneys in the DACA is below its normal historical levels; while total case filings also went through a period of decline, they have returned to more normal levels while staff attorney positions have remained low and average longevity has declined. In 2007 DACA was comprised of seventeen attorneys—one chief staff attorney, two senior staff attorneys, twelve associate staff attorneys, and two assistant staff attorneys. Budget cuts in the late 2000s and the recent addition of second law clerks in judicial chambers have resulted in a reduction to the number of staff attorneys. Combined with budgetary pressures, the division’s hierarchical structure in in question. Specifically, the chief staff and senior/supervising staff positions are currently occupied on an interim basis through the end of fiscal year 2019, the number of associate attorneys has been reduced by three, and the positions of assistant staff attorney are no longer utilized because of the low compensation level. To a large degree, the Court attributes these problems to the fact that its budgets have continued at the reduced recessionary level and to the below-market rate compensation for its staff attorneys. The uncertainty of continued employment, even if unfounded, invariably leads to avoidable departures and low morale. The Court should make the interim positions permanent and, to the extent possible, ensure that staff attorney compensation is competitive with market rates and commensurate with the responsibilities required. During the NCSC consultants’ return visit in May, the judges and Clerk of Court made clear their commitment to adding additional staff attorneys to DACA and to increasing the compensation levels of the attorneys. The current plan is to hire two or three new staff attorneys in July 2019 by shifting 1.5 FTE positions in the Clerk’s Office and not hiring a new appellate case mediator. Adding additional staff to DACA will be critical given that case filings will likely increase in FY 2020 due to legislation that shifts jurisdiction for Metropolitan Court appeals10 from the district court to the Court of Appeals. It is unclear whether the NM COA will receive the 1 FTE attorney position for these on-record appeals. Even if the Court receives the position, there is no accompanying funding for it. Any new staff attorneys added will allow more senior staff to review new case filings for jurisdiction, prepare and issue orders on show cause matters and procedural motions, and resume taking on general calendar projects. Additionally, the Court plans on requesting an increase in attorney compensation when the new fiscal year starts in July 2020. Second, DACA has experienced a relatively high turnover of staff in recent years. Since 2014, twelve attorneys have left DACA, including five who accepted higher paying positions

10 Estimated volume of these appeals for FY 2020 is 112 cases.

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with the New Mexico Supreme Court, Attorney General’s Office, and District Court. Adequate compensation for the staff attorneys is a systemic problem for the Court, especially as it relates to the interim chief staff and supervising attorney positions and as compared to the salaries of District Court staff attorneys, which are higher. The rapid turnover of staff attorneys has resulted in lower productivity in the division overall due to the time spent recruiting, interviewing, and training new attorneys and the lower productivity of the new hires initially. The production drop has been mitigated by the “triaging” of cases assigned to less experienced attorneys and changes in practice allowing less detailed general calendar reports and inappropriate referrals to the summary calendar (see infra). Up to this point, DACA has been able to attract sufficient numbers of qualified applicants although the pool has shrunk over time, presumably because of the lower compensation rate. To limit further departures and continue attracting qualified applicants for future vacancies, the Court must address the comparative low salaries of the staff attorneys. The rationale for NM COA staff attorney compensation being set lower than district court staff attorneys is that staff attorneys are classified employees, who are ostensibly entitled to greater employment and disciplinary protections than the district court clerks, who serve at will. It has been a long-standing policy with the New Mexico judiciary to pay classified employees at a slightly lower level than unclassified employees who perform the same or similar duties. Short of determining whether that policy should be preserved, the NM COA might consider requesting a compensation study to determine whether duties performed by DACA staff attorneys should be recognized as being at a higher level than those of their district court counterparts. Third, in years’ past, the staff attorneys have been responsible for three primary types of work: summary calendaring and general calendar projects (preparing opinions in cases on the general calendar) and other tasks such as mentoring law clerks, conducting training sessions for judges and staff, etc. Currently, staff attorneys are required to work almost exclusively on the summary calendar because of staffing issues and DACA’s excessive caseloads. This is fast- paced, stressful work because it involves shepherding an average of 8 to 10.5 cases, plus “subsequents,” per month through the appellate process to disposition. Summary calendaring also requires a thorough understanding of the Court’s practices as well as extensive experience in identifying cases that are appropriate for this track and resolving them most efficaciously. It is estimated to take about three to five years of experience before a staff attorney becomes truly comfortable and fully proficient in handling the summary calendar. Given that several staff attorneys were only recently hired to replace out-going veterans, the summary calendaring assignment has become more problematic for DACA. Working on general calendar projects in the past allowed the staff attorneys to focus on any languishing summary calendar cases (i.e., “subsequents”) and to delve into more substantive or challenging legal issues, which made the work environment more enjoyable and rewarding. Some recent practice changes have helped improve the staff attorneys’ work environment: (1) The attorneys need not provide as much detail as they had previously when recommending cases for the general

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calendar, and (2) the judges no longer direct the attorneys to place difficult cases on the summary calendar in the hope of resolving them summarily. Fourth, in the past decade or so, the Court’s jurisdiction has expanded to include additional case types, such as appeals of DNA evidence, abuse and neglect, oil and gas, and on- record cases from the metropolitan court (starting in mid-June 2019). There is some expectation that it may expand further to include appeals of administrative matters. There has also been a marked increase in the number of expedited appeals, most significantly in motions regarding pretrial detention, and in the number of appeals from self-represented litigants. These changes have resulted in an increased workload that requires additional research and training, new processes, and re-prioritizing of assignments. All this has further stressed an under-staffed research division. Finally, as with the other divisions of the Court, there is a general lack of IT support for DACA. As an example, the reports and notices of the staff attorneys have, for many years, been created using Corel WordPerfect. Most attorneys have therefore amassed a bank of reports that can be searched using Boolean queries to locate earlier analyses of issues that are raised in current cases. Although the judges and other staff have switched to Microsoft Word to gain additional functionality (e.g., the Track Changes feature), staff attorneys continue to use WordPerfect to avoid losing the ability to search their old files. However, there are technological solutions to convert the WordPerfect files to .docx format or to search the files using a third-party document search engine. DACA’s efficiency has also been hampered by the inability to search the shared network drive by which the attorneys can collaborate on assignments and access the files, and thus the research and analysis, of their colleagues.

Recommendation 12 – Upon addressing the relevant budgetary issues, the NM COA should make the current interim chief staff attorney and supervisor positions permanent; recruit and appoint new staff attorneys; consider requesting a compensation study regarding staff attorney duties and salary levels; and investigate technological options for conversion of staff attorney files to MS Word.

I. Summary Calendar Process on Criminal Appeals

Appellate procedures in New Mexico differ markedly from the common practices employed by the vast majority of appellate courts in other states, primarily due to the summary calendar process. The summary calendar process has historically been quite effective in resolving appeals. Approximately 60 – 65% of appeals resolved by the Court each year are resolved on the summary calendar. However, it has become exceedingly more difficult to

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resolve cases, particularly criminal appeals, in a timely manner for several reasons. This is partly due to reduced number of staff attorneys in the DACA, but also to the rules requiring that the calendar assignment be made based on the record proper and the docketing statement prepared by trial counsel. According to the staff attorneys, the quality and effectiveness of docketing statements has declined significantly in recent years. As a result, there are many more Memorandums in Opposition that contain Motions to Amend the Docketing Statement filed once a lawyer from the Appellate Division of the Public Defender is assigned to the case. In some cases, there are multiple instances of notices and motions filed before a final calendar assignment is made. In addition to the additional staff attorney time that goes into the review of poorly written docketing statements, the ‘back and forth’ process greatly increases a staff attorney’s subsequent workload.

The NCSC consultants developed a potential variation of this process that could be initially implemented as a pilot project in criminal appeals. This alternative process would:

1. Ensure that all appeals are assigned to an appellate public defender quickly; 2. Require the prompt filing of a Notice of Appeal and eliminate the filing of docketing statements. The Notice of Appeal would include sufficient information to enable the staff attorneys to review the matter for jurisdiction and, if jurisdiction is proper, create the official case caption and handle any pre-brief motions; 3. Record proper and any designated transcripts prepared upon receipt of the Notice of Appeal; 4. Appellate counsel would file an opening brief (appellate public defender should be appointed expeditiously); 5. Staff attorneys review record proper and opening brief to determine calendar assignment; a. If the staff attorney determines that summary affirmance is appropriate and that a responsive brief is not necessary, the attorney will prepare a short opinion that is to be placed on the summary calendar and issued upon approval by the judges without requiring a response from the Attorney General. Unlike the current practice, a Notice of Proposed Disposition will not be issued so there would be no opportunity for the appellant to file a Memorandum in Opposition. b. If the staff attorney believes that (1) summary affirmance may be appropriate but that a responsive brief would be beneficial before making that determination, or (2) summary reversal or some other type of relief may be appropriate, the attorney will prepare an order for the responsive brief and specify the date on which it is to be filed. When the brief is filed, the case will be returned to the same attorney to determine if the case can be summarily decided or if a general calendar assignment is warranted. c. If summary affirmance is clearly inappropriate (e.g., cases that raise issue(s) of first impression or a large number of issues, cases that are factually intensive and

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require an in-depth review of a lengthy record), the staff attorney will prepare a general calendar notice, which will include an order for a responsive brief.

This alternative process of replacing the docketing statement with an opening brief prepared by appellate counsel would provide for a full presentation of all material facts in the case with citations to the record where the facts can be found and a well-briefed legal argument with respect to the issues raised and the request for relief. If conducted as a pilot project, any issues or concerns that are identified can be corrected before a wider implementation is commenced. Once sufficient experience with this alternative process is gained, the Court can assess whether it may also be appropriate for application to certain civil or administrative appeals. Table 11 below provides a comparison of the steps included in the NM COA’s current process, the common model for appellate procedures and the alternative process proposed here.

Table 11

New Mexico Court of Appeals Current New Mexico Court of Appeals Criminal Common Appellate Procedure Process Appeals Proposed Process

1. Notice of Appeal, prepared by trial 1. Notice of Appeal, prepared by 1. Notice of Appeal, prepared by appellate counsel, filed in the District Court appellate counsel, filed in the counsel, filed in the NM COA within 30 -40 within 30 days after judgment is filed, appellate court within 30 -40 days days after judgment is filed, with service on with service on the Court of Appeals. after judgment is filed, with service the district court. NM COA initiates a case Court of Appeals does not initiate a on the trial court. Court of Appeals filing at this point. case filing at this point. initiates a case filing at this point. 2. Docketing Statement, prepared by trial counsel, filed in the Court of 2. No docketing statement required. Appeals within 30 days after the 2. Docketing statement, if any is Contents of the current docketing Notice of Appeal was filed, with required, may be filed jointly with statement required by 12-208 D would be service on the District Court. The the opening brief. included in the Notice of Appeal and/or the Court of Appeals does initiate case Brief in Chief. filing at this point. 3. The record, and any transcripts 3. The record proper, and any transcripts 3. The record proper is filed in the designated, are filed in the required, are filed in the NM COA by the Court of Appeals by the District Court. appellate court by the trial court. district court. Briefing schedule is initiated. Briefing schedule is initiated. 4. Calendar Review by staff attorneys to make decision on assignment to 4. Briefing schedule is initiated by 4. Briefing schedule is initiated by filing of summary or general calendar. If filing of the record and transcripts, the record and transcripts, if transcripts are assigned to general calendar, skip if transcripts are designated. designated. steps 5 through 5.c.

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5.a. If assigned to summary calendar, staff attorneys prepare a Notice of Proposed Summary Disposition for 5. Opening Brief must be filed by submission to the summary calendar 5. Brief in Chief must be filed by appellant. appellant. judge. The summary calendar judge may approve, not approve or require revisions.

5.b.1. Once approved by the summary calendar judge, either party 6. Answer Brief may be filed by 6.a. Staff attorney will review record may file a Memorandum in Opposition appellee. proper, transcripts if any, and Brief in Chief. or in Support.

5.b.2. If a Memorandum in 6.b. If appeal has no merit, or current law 7. Staff attorney, law clerk and Opposition is filed, the party may also can resolve the appeal, staff attorney judge(s) review record, transcripts if file a Motion to Amend Docketing prepares a draft opinion for assignment to any, and brief(s). Statement. a panel. 5.c. Memorandums in Opposition and Motions to Amend Docketing 8. Staff attorney, law clerk and Statement are reviewed by staff author judge draft an opinion. (This attorneys who can either agree and step may vary based on whether change case assignment to the the appeal will be orally argued. In 6.c. If appeal has merit, notice of setting to general calendar or affirm the some appellate courts, a bench general calendar is issued. Attorney summary calendar assignment. If the memo is circulated among the General may file an Answer Brief. summary calendar is affirmed, go back panel if the case will be argued. The to step 5.a., or prepare a draft opinion bench memo typically does not for review by the assigned summary include a recommended judgment.) judge.

6. If the draft opinion is approved by 7. Staff attorney or judge & law clerk will the summary calendar judge, 2 N/A review record proper, transcripts if any, participating judges are assigned to and brief(s) then draft an opinion. form a panel and decide the case. 7. If the appeal is assigned to the general calendar, briefing Schedule is initiated upon filing of transcripts or a N/A N/A Notice of Non-designation of Transcripts. 8. Brief in Chief must be filed by N/A N/A appellant. 9. Answer Brief may be filed by N/A N/A appellee. N/A TBD 10. Reply Brief

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Recommendation 13 – Because the summary process is time intensive, particularly in criminal appeals, the NM COA should consider an alternative process. To minimize disruption and ensure that rights of appellants are upheld while efficiency is improved, implementation could be done as a pilot project covering appeals from selected districts before going statewide. A pilot project would also allow adjustments in the particular steps to be made in a timely fashion, as appropriate. The alternative process described in this report would require working with the trial courts, the New Mexico Public Defender’s Office and the New Mexico Attorney General’s Office to ensure that all stakeholders are engaged.

J. Appellate Mediation Program

The NM COA mediation program, which began in 1998,11 has currently been discontinued because the director left the Court’s employment. Even when the program was operating, some Court leaders doubted whether the cost of the program justified its continued operation in light of the relatively few cases that were successfully mediated. Most intermediate appellate courts with a mediation program do acknowledge its benefits. Effective mediation of appeals can reduce the number of cases the court must decide by opinion or order, or it can streamline appeals by resolving some of the issues. Mediation, if successful, ends the litigation so there are fewer remands and subsequent appeals, and results in greater satisfaction for the parties and enhanced goodwill for the court. However, court- operated appellate mediation programs can be expensive in terms of personnel and facility costs. A mediator, by necessity, must be an attorney because mediation requires an understanding of the controlling law. Typically, the attorney-mediator is someone with many years of experience and an outstanding reputation within the state’s legal community — meaning that person can command a higher salary. A court-operated mediation office usually also requires an administrative assistant, either part-time or full-time, to handle the paperwork and schedule conferences and phone calls. Mediation conferences may require at least two dedicated meeting rooms so that the parties and their attorneys can be onsite at the same time yet meet separately with the mediator. For courts with tight budgets, like the NM COA, the cost of operating a mediation program might be better spent elsewhere, such as on additional personnel in the clerk’s office or the staff attorney division, especially since the mediation program has not resulted in very many dispositions of late. Under the former mediator, only about 10 cases had even been scheduled for mediation conferences in the first five weeks of the year. Because the success of

11 Richard Becker, Mediation in the New Mexico Court of Appeals, 1 Journal of Appellate Practice & Process 367 (1999) (available at http://lawrepository.ualr.edu/appellatepracticeprocess/vol1/iss2/9).

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a mediation program partially depends on the mediator’s reputation for being competent and impartial, it may take months, or even years, for a new mediator to establish that reputation and reach the point at which the program disposes of enough cases to justify its cost. For that reason, the Court may wish to delay replacing the mediator for the time being and use the money to hire additional staff who will have a greater immediate impact in reducing the Court’s backlog. As an alternative to a court-operated mediation program, the NM COA is presently exploring the use of several outside mediators who would receive referrals from the Court or requests from the parties directly, and who would be paid for their services directly by the parties. In most states that have this type of mediation program, the mediators utilize a graduated rate to make the process more affordable for parties with limited financial resources. The task of identifying appropriate cases could be assigned to a staff attorney in DACA or to the jurisdiction/motion attorney in the Clerk’s Office, assuming the Court creates such a position (see supra). Another mediation option is to have a judge of the Court, particularly a former district court judge or private practitioner with a background in alternative dispute resolution, serve as the mediator, using existing space in the Albuquerque building. The downside to that alternative is that the judge would be disqualified from having any further association with the case if it was unable to settle.

Recommendation 14 – The NM COA should consider establishing an appellate mediation program operated externally.

K. Reporter of Decisions

The reporter of decisions is a position that was newly created in the NM COA in late 2018. At the time of the NCSC team’s initial visit to the Court, the newly-hired reporter had been in his position for only a few weeks. The reporter’s primary responsibilities were to edit formal opinions and supervise the office’s four paralegals, who create the case captions and perform technical reviews of opinions. Beyond that, the scope of his responsibilities and authority were unclear to him. In May 2019, the NCSC team learned that the reporter resigned and has accepted a senior staff attorney position with the New Mexico Supreme Court. The paralegals continue to perform the technical reviews of opinions prior to release and operate under the supervision of the chief judge. As mentioned previously, judges and law clerks must make all efforts to ensure that the opinions they prepare approach a camera-ready state prior to sending them on for this technical review.

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Recommendation 15 – Given the need to address the backlog, funding for the reporter of decisions is better used to increase staffing in the DACA. The paralegals, now being overseen by the chief judge, should continue to perform technical reviews on opinions. At the same time, efforts should be made to provide training as necessary to ensure that chambers begin preparing camera-ready opinions.

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