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Introduction
The seven founding judges of the new Utah Court of Appeals took their oaths of office on January 17, 1987. Utah became the thirty-seventh state to organize a court
of appeals. The first was Ohio in 1851 and the last was Mississippi in 1995.2 In 2004, Nevadans will vote on the formation of a state appellate court.3 Our initial judges and limited staff were required to expend enormous effort to simultaneously set up the court, begin processing one-half of the Supreme Court's one-thousand case backlog and take on new filings. In order to survive and succeed, the judges adopted the motto, "We Are Driven."
To date, the judges of the Utah Court of Appeals have disposed of 11,000 appeals. During 2001, 753 appeals were filed. The flow of cases in the pipeline has produced constant pressure on
judges and staff. It has been said that "necessity is the mother of invention." Indeed, the court has been required to be innovative to meet Utahns' demands for justice on
appeal. The court was designed to absorb all increases in appellate filings by the appointment of additional judges while the number of Supreme Court justices would remain at five.4 However, due to creative solutions, the court's caseload continues to be managed with seven judges. Still, the court maintains a reputation for high quality opinions and the expeditious disposition of cases.5 Recently, Utah Supreme Court Justice Michael J. Wilkins echoed this appraisal:
The Court of Appeals has established itself as an able and efficient supplier of appellate finality in all but the most unique cases. The Supreme Court backlog has evaporated, with the
Court informally restricting itself to between 100 and 120 opinions each year. Cases at issue (ready to be calendared for argument and decision by the court) in both the Supreme Court and
the Court of Appeals wait little more than 30 days to be scheduled for decision.6
Utah's Appellate Court System
At the end of the tenth anniversary article, see Endnote 1, I stated that collocation at the Matheson Courthouse at 450 S. State Street would
present new opportunities to fine-tune Utah's appellate system. In the spring of 1998, the Supreme Court came down from the State Capitol Building and the Court of Appeals moved over from
the Mid-town Plaza. The fifth floor of the new courthouse was designed to accommodate both courts. The Supreme Court occupies the south wing and the Court of Appeals occupies the north
wing. In between, administrative staff is housed and courtrooms are located. Filings for both courts are received at the same counter.
In anticipation of the move, the new position of Appellate Courts Administrator was created on January 1, 1997. Marilyn (Matty) Branch was appointed and continues in that position to the
present. She supervises operations of Utah's appellate courts with the assistance of Pat H. Bartholomew, clerk of the Supreme Court, and Paulette Stagg, clerk of the Court of Appeals.
At the Matheson Courthouse, the Board of Appellate Judges can quickly and conveniently convene as needed. The Board consists of all twelve appellate judges and justices. Further, when
justices need to recuse themselves from Supreme Court cases, Court of Appeals judges rotate to fill most of those slots. Since moving to the Matheson courthouse, Court of Appeals judges
have sat for justices ninety-eight times. Currently, two former Court of Appeals judges, Justice Leonard H. Russon and Justice Michael J. Wilkins, sit on the Supreme Court, enhancing the
cooperative working relationship between the two courts.
From the inception of the court, annual workshops have been held to examine court operations, do long-range planning, and encourage collegiality. Later, both courts began conferencing
together annually for the same purposes.
Often, after rigorous debate, the judges on a Court of Appeals panel agree to write opposing opinions for consideration by the Supreme Court and to invite review of first impression
issues. Thus, substantial groundwork is laid for the Supreme Court to build upon. The statute that created the system anticipated that interplay of this kind would take place.7
Outreach
Prior to interviews with Governor Norman H. Bangerter in 1986, each Court of Appeals judge applicant received a stack of papers regarding proposed court operations. One
task force recommendation was entitled "Oral Argument in Remote Areas." "Remote" was defined in a way that excluded only Salt Lake County. When I interviewed with
Governor Bangerter, I said that in my mind Escalante and Enterprise were remote locations, not Odgen and Provo. He said some people think West Valley (his residence) is remote. In any
event, because the court has statewide jurisdiction, the judges agreed with the concept of taking the court to the people who live outside Salt Lake County.
Each year we have three "travel calendars." Oral arguments are calendared away from our Salt Lake City courtroom. Our first "circuit" was in Richfield on June 26, 1987.
We have conducted sessions in the following cities, some more than once: Brigham City, Cedar City, Coalville, Fillmore, Logan, Manti, Monticello, Ogden, Price, Provo, Richfield, and St.
George. Our next session is scheduled at St. George on March 21, 2002. Typically, we arrange a luncheon meeting with the local bar association, including open discussion of the appellate
courts. Further, an invitation is extended to local criminal justice students and others to attend court. Afterward, a question and answer session is held in the courtroom or on local
campuses.
Creation of Appellate Mediation Office
Before the 1998 move to the Matheson Courthouse, the Appellate Board approved creation of a mediation office at the Utah Court of Appeals.
In the 1980's, mediation was viewed narrowly as an acceptable tool to reduce appellate case backlog. However, the judges of the court agreed early on that mediation was an effective means
of disposing of cases in the regular course of business.
We surveyed state and federal mediation programs and found different but successful models nearby at the Idaho Supreme Court and the Tenth Circuit Court of Appeals. Robert E. Bakes, former
Chief Justice of the Idaho Supreme Court and David Aemmer, Chief Circuit Mediator for the Tenth Circuit Court of Appeals, were invited to meet with us in 1994. After their presentations,
we adopted the Tenth Circuit model as better suited to Utah's needs. Moreover, some Utah lawyers were familiar with that program, having participated in it, and they were supportive of
appellate mediation. Further, legislators encouraged us and provided funding to proceed.
In January 1998,8 we converted one of our vacant judge's chambers into the appellate mediation office, and the court began referring cases to mediation.9 While it is an official arm of the Utah Court of Appeals, the mediation office operates independently of the court. This is done to preserve confidentiality of the process. Karin S. Hobbs, then a central staff attorney, was appointed as the Chief Appellate Mediator. Michele Mattsson, also a central staff attorney, succeeded her in August, 2001. Presently, Jan Muir serves as administrative assistant.
After docketing statements are filed, some appeals are randomly selected for mediation. Most mediations are conducted at the Appellate Mediation Office; others by phone or at outlying
locations. Participation in the first mediation conference is mandatory, but settlement is voluntary. The mediator acts as a neutral in assisting the parties to design their own mutually
agreeable solutions. Parties are encouraged to work "outside the box," to mend relationships, to vent, to reduce tension, to come to an understanding and to set a future course
of action.
Our statistical analysis reveals that our mediators have enjoyed unqualified success. Each year of operation, they have received about a hundred appeals and settled over fifty percent.10 Accordingly, when compared to judge-authored dispositions, our mediator disposes of about the same number of cases at about half the cost.
Caseload Management and Statistics
Diagram 1, Utah Court of Appeals Case Management, illustrates how cases flow through the Court of Appeals on different tracks to final
disposition. Cases can be (1) concluded by summary action, (2) settled through mediation, (3) decided by the law and motion panel, (4) decided by the per curiam panel or (5) decided by a
regular judicial panel. Each panel consists of three judges. Judges continuously rotate on and off of all of the panels. However, the screening function - selection of cases for the
court's oral argument calendar - is performed by a single judge in concert with our central staff attorneys. This process enables every judge to be involved in every function on a regular
schedule, thus providing consistency and continuity in treatment of cases.
The court's caseload continues to be maintained in "current" status. Current means that when appellate counsel have filed their briefs, thus placing the appeal "at
issue," their case will be placed on the court's calendar for final action in about two months. Backlog is defined as those cases that wait longer than this to appear on our
calendar. Accordingly, we have no backlog at present.
In 2001, attorneys used 270 days (median number of days) between filing their notices of appeal and completion of briefing. In 2001, the average days used by judges between submission for
decision and issuance of decision was seventy-two days for published opinions and twenty-eight days for memorandum decisions.
A few cases will, at any time, be waiting for the calendared argument/conference date or under advisement waiting for decisions to be written and issued. However, there is no accumulation
of cases awaiting disposition by judge-authored opinion or memorandum decision. Occasionally, disposition time will exceed normal limits. This most often occurs when judges on a panel
disagree. Then, a variety of scenarios can develop that require additional time, including change in authorship of the main opinion and preparation of separate opinions.
In the fiscal year ending June 30, 2001, attorneys filed ninety-two petitions for writs of certiorari. During the same year, the Supreme Court granted eighteen petitions. These figures are
consistent with past practice. Further, statistics for the last five years reveal that the Supreme Court has reversed the Court of Appeals in twenty-four cases. This reversal rate is
consistent with the Supreme Court's fifteen-year average of 5.5 reversals per year. Thus, Court of Appeals decisions stand as final about ninety-five percent of the time. Accordingly, the
Court of Appeals is the court of last resort in the vast majority of cases.
Court Personnel
I would like to include the names and terms of service for all judges, clerks of court, and central staff attorneys and mediators who have served on the court.
Each has made a unique and positive contribution to the court's mission.
Judges of the Court of Appeals and Terms of Service
Russell W. Bench: 1987- present; Judith M. Billings: 1987 - present; Richard C. Davidson: 1987 - 1990; Regnal W. Garff: 1987 -
1993; Pamela T. Greenwood: 1987 - present; Norman H. Jackson: 1987 - present; Gregory K. Orme: 1987 - present; Leonard H. Russon: 1990 - 1994; James Z. Davis: 1993 - present; Michael J.
Wilkins: 1994 - 2000; William A. Thorne, Jr.: 2000 - present.
Each of the judges has had the opportunity to serve as associate presiding judge and as presiding judge, except our newest member, Judge Thorne.
Clerks of the Court and Their Terms
Former Court of Appeals clerks include: Tim Shea 1987 - 1988; Mary Noonan 1988 - 1994; Marilyn Branch 1994 - 1997; Julia D'alesandro 1997 -
1999. Current clerk of the court, Paulette Stagg, has served since 1999.
Central Staff Attorneys and Their Terms
Karen S. Thompson: 1987 - present; Clark R. Nielsen: 1987 - 1995; Karin S. Hobbs: 1989 - 1994, 1995 - 1999; Julia C. Attwood: 1992 -
1997; Michele Mattsson: 1995 - 2001; Kristin Clayton: 1997 - 1998; Michele Engle-Boyd: 1998 - 2000; Catherine Johnson: 2000 - 2001; Lori Lewis: 2001 - present; Susan Denhardt: 2001 -
present.
Further, I note the valued service of Lead Legal Secretary, Kathy Vass, who joined our staff in August 1987 and remains on board. At present, our staff also includes Legal Secretaries
Cathie Montes and Deborah Hernandez; and Deputy Clerks Holly Martak, Tashaw Haws, Janet Alexander and Jennifer Walker.
Looking to the Future
As we anticipate the future of Utah's appellate system, various refinements will continue to be considered. Perhaps, at some point, it may be prudent to
adopt a pure certiorari system patterned after the federal system.11 As population burgeons statewide, it may be advisable to divide the state geographically into court of appeals divisions as has been done in many states. A nearly comparable example of this is Arizona, with north and south divisions located in Phoenix and Tuscon, respectively. Nearer at hand could be restoration of the ability of panels of the Court of Appeals to render a decision in conflict with a decision of another panel of the court, as provided in Rule 46 of the Utah Rules of Appellate Procedure. The rationale for this provision was that robust debate and conflict between panels would provide the Supreme Court with superior analysis to consider on certiorari review. However, State v. Thurman12 and
its progeny placed a prohibition on this practice that could be reconsidered. This restraint on Court of Appeals panels placed development of our appellate system in an unnecessary box.
As Pieter Deyl has said: "History is a drama without a denouement; every decision glides over into a resumption of the plot."13
Footnotes
1.
See also Norman H. Jackson, The Fifth Anniversary of the Utah Court of Appeals, 5 Utah Bar J. 18, 18-19 (1992); Norman H. Jackson, Tenth Anniversary of the Utah Court of Appeals, 10 Utah Bar J. 19, 19-22 (1997). I acknowledge the able assistance of my law clerks, Mark Lehnardt and Kelly Peterson, and BYU Law School extern, Ryan Tenney. This article is my own product and should not be viewed as expressing any position of the Court of Appeals.
2. See The Council of Chief Judges of the Courts of Appeal, Directory of Judges of State Courts of Appeal 150, 209 (West 2001).
3. Courting Disaster?, Las Vegas Review-Journal, Dec. 27, 2001, at 6B.
4.
In 1984, an appellate courts task force recommended the addition of two judges to the Court of Appeals. The Matheson Courthouse was designed with chambers for ten Court of Appeals judges and their clerks.
5. Brian Maffly, Appellate Courts: Second Chances at Justice for Utah Citizens, The Salt Lake Tribune, Oct. 25, 1998, at J7.
6. Justice Michael J. Wilkins, Strengthening the Utah Judiciary: The 1984 Revision of Article VIII of the Utah Constitution (May 22, 2001) (unpulished manuscript, on file with author).
7. See Utah Code Ann. ¤¤ 78-2a-1 to 78-2a-5 (1986).
8.
Justice Michael J. Wilkins and Karin S. Hobbs, Utah's Appellate Mediation Office Opens January, 1998-A New Option for Case Resolution at the Utah Court of Appeals, 10 Utah Bar J. 25 (1997).
9. See Utah R. App. P. 28A.
10. In the start up year the settlement rate was about 40%. Last year, the mediator position was vacant from April to August, due to a hiring freeze. Thus, the number of appeals
referred was lower but the settlement rate remained constant.
11. A substantial step could be taken by simply amending the jurisdiction of the two appellate courts. Currently, the Supreme Court receives and sifts all civil appeals, except
domestic and juvenile. A small number are retained and the rest transferred ("poured over") to the Court of Appeals. This process results in some duplication of work and delay
in final dispositions.
12. 846 P.2d 1256, 1268-70 (Utah 1993).
13. As quoted in The Oxford Book of Aphorisms 325 (John Gross ed., Oxford University Press, 1983).
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