Appellate Patience is a Virtue

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So, when do you think we’ll hear back from the court? This dreaded client question follows oral argument as day follows night. Last month, about seven seconds after walking out of my first oral argument since returning to private practice, and there it was. The wonderful adrenaline high of satisfaction in completing the argument came crashing back to the reality of appellate timelines, and the need to manage client expectations in such time frames.

Before my return to private practice, I enjoyed a unique experience in appellate work as disciplinary counsel for the Arizona Commission on Judicial Conduct. All of my formal cases went straight from the commission to the Arizona Supreme Court. And, unlike the typical civil appeal, my cases received relatively quick and decisive attention. On average, during my time with the commission, the court generally issued its rulings within a matter of weeks. Such a turnaround is perfectly understandable in cases that so clearly impact the public broadly.

For example, in summer 2014, I prosecuted and the commission considered a case involving a judge charged with massive systemic failures in his administrative oversight duties coupled with disturbing allegations of problematic on-bench conduct. The commission recommended that the court remove the judge and the court issued its order adopting that recommendation in about two weeks.

My experience in the disciplinary arena underscores the need for appellate litigators to bear in mind the many important hats that our Supreme Court Justices wear. In addition to exercising discretionary review over your pending petition, they are also charged with other significant duties, including: Automatic review of all cases in which the superior court imposed the death penalty;

  • Consideration of all special action petitions and original jurisdiction cases (such as habeas corpus petitions and writs of mandamus);
  • Reviewing and considering petitions related to the various rules of procedure for all courts in Arizona;
  • Regulation of State Bar of Arizona activities, including overseeing the admission of new attorneys;
  • Reviewing charges of misconduct against attorneys with the authority to suspend or disbar them; and, of course,
  • Serving as the final arbiter of disciplinary actions against state judges that originate with recommendations made by the Commission on Judicial Conduct.

These varied duties have a practical impact on the court’s schedule. In late August and early September each year, extra court time will be taken up by its rulemaking duties as it considers the many pending petitions for changes. Around that same time, the justices are also welcoming and training new law clerks to aid in the preparation of opinions. Presumably, this results in a predictable and appropriate delay in the issuance of opinions already in progress.

Beyond this specific timeframe of particular duties, throughout the year the court must more urgently address the death penalty, habeas and disciplinary matters. Then there are those special cases that pop up in an election cycle and demand immediate attention with very real and very broad public consequences should the justices tarry.

In 1964, the Arizona Legislature created the Court of Appeals specifically to address and reduce the workload of the Supreme Court. There are currently 16 judges who sit in Division One in Phoenix, with another six judges sitting in Division Two in Tucson. Both divisions have non-discretionary review of all matters appealed from superior court. Additionally, Division One also hears all appeals from the Industrial Commission, unemployment compensation rulings from the Department of Economic Security, and rulings by the Tax Court.

In fiscal year 2013, the Supreme Court issued more than 1,100 dispositions, and the Court of Appeals issued almost 4,000 dispositions. Our appellate courts are obviously quite busy with their case-related duties. But in addition to those duties, many of our appellate judges also serve in additional and necessary capacities off the bench.

Lex Reception

For example, the Commission on Judicial Conduct discussed earlier is comprised of 11 members, six of whom are judges and two of those judges must be seated on the Court of Appeals. The commission disposes of approximately 350 complaints against judges annually, every one of which is reviewed by the members themselves.

Every client in every appellate case has an issue of the utmost importance … to the client. But in managing the client’s expectations (and perhaps your own as counsel) as to the appellate time frame in your case, it is important to remember these varied hats our judges wear and maintain your patience in waiting out that opinion. Jennifer Perkins

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