Volume 3 • Number 1 CASELOAD HIGHLIGHTS EXAMINING THE WORK OF THE STATE COURTS

A Taxonomy of Appellate Court Organization

Much has been written about Increasing the Size of more petitioners at least one en banc. En banc decisions how trial court structures 1 the Court of Last Resort opportunity to appeal, but are made practical in the have adapted to demo- also create the possibility of higher courts because inter- graphic, economic, and po- Perhaps taking a cue from a second appeal to the court mediate appellate courts are litical conditions in the the U.S. Supreme Court, no of last resort. According to available to decide the ma- states. For example, some state court of last resort has Professor Leflar “It is almost jority of the cases. Cases states use a single trial court more than nine judges.ii axiomatic that every losing that are further appealed to of general jurisdiction to Since 1950, increasing the litigant in a one-judge court the court of last resort are decide all cases, whereas size of the court of last re- ought to have a right of appeal likely to be more complex, other states employ a multi- sort has not been a typical to a multi-judge court.” iv The and to have broader policy tiered system composed of response to increasing ap- taxonomy presented below implications beyond the general, limited, or special peals. Standard 1.13 (4) of shows the variety of ways interests of the parties. jurisdiction courts. Courts the ABA Standards Relating intermediate appellate courts These second appeals are of special jurisdiction, such to Court Organization sug- are used in the states. In 11 likely to require more time as specialized courts to gests that collegial decision states, the intermediate ap- and attention than first ap- handle drug offenses, are in making is best promoted by pellate court is essentially peals. Intermediate appel- vogue now, but follow in the having seven members of the another appellate court, simi- late courts typically hear tradition of the specialized highest court, but no more lar in size to the court of last appeals of right, but some courts designed to meet than nine members under any resort. In 29 states, the inter- also have discretionary ju- specific state needs, such as circumstances. Although mediate appellate courts have risdiction for certain types the Water Court in Colorado achieving some economies of more than 9 members and as of cases. or the Land Court in Hawaii. scale, increasing the number many as 88 authorized mem- of justices does not propor- bers serving on panels in geo- The variety of ways in which tionately increase decision graphically-based districts. 4 Using Panels appellate courts have changed making capacity. Whether Geographically-based divi- to accommodate increasing the highest court has five or sions provide more conve- Justices on larger courts of caseloads has not been as nine members, all justices nient access for counsel and last resort can increase their systematically studied.i An must do the basic work of court clients, but do create capacity to decide appeals understanding of variations in appellate justices: read the the possibility of “doctrinal by sitting in panels, rather organizational responses is briefs, hear oral arguments, divergence and caseload im- than en banc. Indeed, for necessary to assist those inter- prepare and critique draft balance between divisions.” v large intermediate appellate ested in appellate courts to opinions, and discuss issues courts, panels are a practical communicate meaningfully in conference.iii necessity. This adaptation, with each other, and to ensure Establishing Discre- however, creates the possi- that cross jurisdictional com- 3 tionary Jurisdiction bility of inconsistency in parisons are made fairly. Creating Intermediate decision making among States have used all of the 2 Appellate Courts or More Creation of an intermediate panels, and generates the Geographic Divisions approaches described below, appellate court permits the need to reconcile differ- but in various combinations, The most common state establishment of discretion- ences among panels. Tech- to meet their appellate re- response to increasing ap- ary jurisdiction in the court niques, such as confer- sponsibilities. This report peals is the creation of an of last resort.vi Also, with encing the opinion drafts uses four common organiza- intermediate court of ap- the advent of discretionary en banc, can be used to tional changes to construct a peals. Intermediate appel- jurisdiction, the courts of last minimize inconsistent taxonomy of appellate courts. late courts permit many resort are more likely to sit decisions among panels.

National Center for State Courts • Williamsburg, VA Brian J. Ostrom, Project Director • Victor E. Flango, Carol R. Flango, Authors July 1997 Patterns of Response

These four structural re- ■ Pattern I 10 states ■ Pattern II 2 states ■ Pattern III 5 states sponses can be combined States with comparatively The second pattern is a single Five states use the pattern of to construct at least seven small volumes of appeals may appellate court that has dis- having appeals filed in the distinct patterns of appellate be able to handle their case- cretionary jurisdiction. New court of last resort, which caseflow. The patterns loads without the need for ei- Hampshire and West Virginia then retains some and trans- ther an intermediate appellate are states that fit here. Both fers others to the intermedi- themselves are arranged court or discretionary jurisdic- supreme courts are composed ate appellate court. Of the according to degree of flex- tion. Delaware, Nevada, of five justices who sit en courts following this pattern, North Dakota, Rhode Island, banc. New Hampshire uses three (Hawaii, Idaho, and ibility, from least to most South Dakota, Vermont, and a refereed appellate panel, South Carolina) have five flexible. Theoretically, the Wyoming are states in which composed of three retired members and two (Iowa and a five-justice supreme court judges, as an additional re- Mississippi) have nine mem- pattern with the least flex- with mandatory jurisdiction source. At nearly 2,700 bers. None of the five mem- ibility is the single, five- handle the volume of appeals. appeals, West Virginia has ber courts sit in panels, but Maine and Montana also fit a high proportion of filings both of the larger courts do. justice appellate court with this basic pattern, but have per judge; 48 percent of these The Iowa Supreme Court mandatory jurisdiction that seven justices on their su- appeals are from administra- decides cases using two pan- preme courts. The District of tive agencies, particularly els with one justice, on a decides all appeals en banc Columbia, has a nine-justice the Workers’ Compensation rotating basis, sitting on both (Pattern I). At the other Court of Appeals which often Appeal Board. panels each month. The sits in panels of three.vii The courts of last resort in these extreme is the nine-justice Delaware Supreme Court five states have mostly man- court of last resort with may also sit in panels of three; datory jurisdiction. the Montana Supreme Court COURT of LAST RESORT mostly discretionary juris- can sit in panels of five, and Discretionary diction that hears cases in Maine’s Supreme Court sits in panels, but only for sen- Q➛ panels of three. It sits in a COURT of LAST RESORT tence review hearings. Theo- Trial Mandatory structure over a large inter- retically, the five-member, Court ➛ North Dakota Supreme Court q ➛ Q mediate appellate court, NH, WV can transfer cases to an inter- Intermediate Appellate also sitting in panels by mediate appellate court, but Court ➛ they have not done so since geographic district, and that Trial February of 1994, and so are Ï Court has some discretion over classified here. The North q Dakota Court of Appeals is a HI, ID, IA, MS, SC the cases it hears. This last “temporary court of appeals” combination does not occur composed of active or retired trial court judges, retired jus- in the United States, be- tices of the supreme court, and cause states with very large lawyers assigned to the court on a case-by-case basis. intermediate appellate courts (e.g., California,

Florida, Illinois, New York, COURT of LAST RESORT and Ohio) usually have Mandatory seven-member courts of Q➛ last resort. Trial qCourt DE, DC, ME, MT, ND, NV, RI, SD, VT, WY ■ Pattern IV 25 states ■ Pattern V 2 states ■ Pattern VI 5 states ■ Pattern VII 2 states

This is the most common The distinguishing feature This pattern of appellate Texas and Oklahoma have pattern, one court of last of this pattern is that both caseflow is similar to the most one intermediate appellate resort with discretionary the court of last resort and common pattern explained in court, but two courts of last jurisdiction over an interme- the intermediate appellate Pattern IV except that these resort with different subject diate appellate court with courts have discretionary states have two intermediate matter jurisdiction. Each mostly mandatory jurisdic- jurisdiction over the majority courts of appeal rather than state has a supreme court tion. In 21 states, the court of their caseload. Virginia one. Jurisdiction of the inter- with largely civil jurisdiction of last resort has seven mem- has seven justices on its su- mediate appellate courts are and a specialized court of last bers and in most of these, the preme court and Louisiana separated by subject matter ju- resort for criminal appeals. high court sits en banc.viii has eight, seven elected and risdiction. The supreme courts All of these courts sit en Three other states following one assigned from the Louisi- of Indiana and Tennessee are banc. The intermediate ap- this pattern have five-justice ana Courts of Appeal. Dis- composed of five justices; the pellate court in Texas has courts. Washington state is cretionary appeals comprise high courts of New York and both civil and criminal juris- the only nine-justice court 58 percent of the intermedi- Pennsylvania have seven. The diction, the intermediate in this set, and its supreme ate appellate court caseload Alabama Supreme Court has appellate court in Oklahoma court sometimes sits in pan- in Louisiana and 75 percent nine justices, but they can sit has civil jurisdiction only. els. All of the intermediate of the caseload in Virginia. in panels. The intermediate appellate courts in Pattern IV, To be equivalent to interme- appellate courts in Alabama except for Alaska, sit in pan- diate appellate courts with and Tennessee are essentially COURT of COURT of els. Intermediate courts mandatory jurisdiction one divided into civil and criminal LAST RESORT LAST RESORT range in size from 3 to 88 would expect a high propor- courts. Indiana uses a Court Q➛ Q➛ members, with most (20 of tion of the petitions would of Appeals for most appeals Intermediate 24) having more members be granted. This is not the as well as a specialized Tax Appellate Court than their respective courts case. In 1995, the Louisiana Court. In Pennsylvania the of last resort. Courts of Appeal granted 29 Commonwealth Court hears

Civil Criminal Ï Trial percent of the discretionary civil cases involving state gov- petitions and the Virginia ernment entities or agencies, Court

Court of Appeals granted 16 and the Pennsylvania Superior qOK* percent of the discretionary Court reviews all other ap- COURT of LAST RESORT petitions filed. peals, both civil and criminal.

Mostly Discretionary New York has intermediate appellate courts at two differ- COURT of COURT of Q➛ LAST RESORT LAST RESORT ent levels. So appeals can go Intermediate Appellate ➛ Intermediate ➛ Court COURT of LAST RESORT through three levels of courts: QAppellate Q Court Mostly Mandatory (1) the lower level, comprised ➛

➛ of the Appellate Terms of the ➛ Ï Q ÏTrial Supreme Court in the First and Trial Intermediate Appellate Court Court Court Second Judicial Departments Mostly Discretionary and the County Courts in the q q TX* AK, AZ*, AR, CA*, CO, CT, Third and Fourth Departments; Ï ➛ FL*, GA, IL*, KS, KY, MD, (2) the Appellate Division, the MA, MI, MN, MO*, NE, NJ, Trial NM, NC, OH*, OR, UT, Court primary intermediate appellate WA,* WI* court, and (3) the highest court, q called the Court of Appeals.ix LA*, VA

COURT of LAST RESORT

➛ ➛ Intermediate Intermediate AppellateQAppellate Court Court

Trial Ï Court Ï * Denotes intermediate appellate court that sits in geographical divisions. AL,q IN, NY, PA, TN* Conclusions

This issue of the Highlights appeals, and consequently to tern IV), but occasionally load by creating multiple series is an attempt to cata- workload (dispositions).x with discretionary jurisdiction courts of last resort (Pattern log the various state re- (Pattern V). Finally, some VII) or multiple intermediate sponses to increases in ap- In states with the smallest states have adapted to case- appellate courts (Pattern VI). pellate caseloads. Four com- populations, one appellate mon state responses to in- court with mandatory juris- The authors would like to express their gratitude to several chief justices who reviewed an earlier draft of creasing appeals were used diction appears to be suffi- this manuscript: Chief Justice David A. Brock, New Hampshire; Chief Justice Arthur A. McGiverin, Iowa; Chief Justice Thomas R. Phillips, Texas, and Chief Justice Gerald W. VandeWalle, North Dakota. We are also to construct a taxonomy of cient to handle the workload. grateful for the critical reviews by members of the Court Statistics Project Advisory Committee and staff, as seven patterns. The useful- As size of population, and well as for comments from Roger Hanson and data runs by Pam Petrakis. ness of the taxonomy can be number of appeals, increase i This overview is intended to cover the appellate workload of courts of appeal. Many of these courts have jurisdiction over original proceedings, but these are a comparatively small part of their workloads and are not used to construct this determined by comparing some states adapt by using taxonomy. ii Most state courts of last resort have seven members, 18 have five justices, and only 7 have nine-justice courts. A history appellate outcomes by pat- discretionary jurisdiction of the number of state supreme court justices in 34 states can be found in E. Curran and E. Sunderland, The Organization and Operation of Courts of Review, Third Report of the Judicial Council of Michigan 52, 61-62 (1933). Only New tern, although a systematic (Pattern II), experiment with Jersey and Virginia have ever had more than nine judges. The Virginia Supreme Court had 11 judges from 1779 to 1788, but served also as a trial court. The New Jersey Supreme Court had 15 or 16 justices from 1844 until 1948. See Harison, comparison is beyond the intermediate appellate New Jersey’s New Court System, 2 Rutgers L. Rev.60, 65 (1948). iii scope of this article. Never- courts, or establish an inter- J. Dethmers, Delay in State Appellate Courts of Last Resort, 328 Annals 153, 1158 (1960). iv R. Leflar, Internal Operating Procedures of Appellate Courts (Chicago: American Bar Foundation, 1976). theless, as a start it should be mediate appellate court to v Wasby, Appellate Delay: An Examinatin of Possible Remedies, 6 JUST. SYS. J. 329 (1981). vi See Pattern II, New Hampshire’s and West Virginia’s supreme courts have discretionary jurisdiction even though an noted that the patterns are which cases are transferred intermediate appellate court has not been created in those states. Virginia had the same structure for many years until the related to state populations. from the court of last resort intermediate appellate court was established in 1985. vii Information on panels is from State Court Organization, 1993, (US Dept. of Justice, Bureau of Justice Statistics, This is an important connec- (Pattern III). The next stage 1995), Table 25 tion because population is are courts of last resort and viii Exceptions are: Connecticut, Massachusetts, and Nebraska. ix See R. MacCrate, J.D. Hopkins, and M. Rosenberg, Appellate Justice in New York (Chicago: American Judicature directly related to number of a full-fledged intermediate Society, 1982). Appellate Terms are classified as intermediate appellate courts. Appeals to County Courts, used in the Third and Fourth Departments, are the equivalent of appeals from a court of limited jurisdiction to a general jurisdiction trial court filings which in appellate court, usually with court in other states. x For a more complete discussion of appellate court caseloads and dispositions, see Examining the Work of State Courts, turn are related to number of mandatory jurisdiction (Pat- 1995 (National Center for State Courts, 1997).

Non Profit Org. U. S. Postage CASELOAD HIGHLIGHTS PAID Richmond, VA Permit No. 750 NCSC President NCSC Vice President National Center for State Courts Roger K. Warren Research Division Victor E. Flango 300 Newport Avenue (Zip 23185) P.O. Box 8798 Court Statistics Project Staff Williamsburg, VA 23187-8798 Brian Ostrom Neal Kauder Director Consultant, VisualResearch 804/253-2000 FAX 804/220-0449

Carol R. Flango Robert C. LaFountain Senior Research Analyst Research Analyst

Karen Gillions Way Margaret Fonner Research Analyst Senior Administrative Secretary

Points of view expressed herein are those of the authors and do not neces- sarily represent the official position or policies of the State Justice Institute or the Bureau of Justice Statistics.

State Justice SJI Institute