New Hampshire's Three-Judge Expedited Docket
Nadeau, Joseph P., Journal of Appellate Practice and Process
Today's appellate courts are being called upon to carry out their responsibilities with fewer and fewer resources. To attack their backlogs and still maintain the quality of published decisions, courts have adopted expedited dockets and other fast-track procedures.
Until December 2000, the New Hampshire Supreme Court had no expedited docket. Litigants in New Hampshire appeal to the state supreme court by certiorari, not by right. (1) The five justices, however, review each case individually before they meet to determine whether the case will be accepted for briefing and further review or whether the trial court decision should stand. Regular screening meetings are scheduled each month at which justices discuss the cases. Any justice disqualified leaves the room while that case is discussed. All felony convictions are accepted for full briefing, and most are scheduled for full oral argument. Except by unanimous vote of the justices screening the case with at least three justices participating, no other case is declined. A case is accepted if one judge believes it should be. No case is declined for lack of resources or lack of time to consider the issues presented.
II. THE 3JX DOCKET
In December 2000, the supreme court instituted a three-judge expedited docket, referred to as the "3JX" docket. (2) The three-judge panels alternate from month to month, and the judges on each panel are not disclosed until oral argument, to eliminate the temptation to judge shop. Cases for the first 3JX dockets were initially selected from pending cases, but the court now identifies, at the time of screening, cases appropriate for future expedited dockets. In 2001, 358 of the 766 cases appealed were accepted by the court for full briefing and oral argument. Ninety-seven of those cases were decided by three-justice panels following argument on the 3JX docket.
Even though the docket is expedited, the three justices read all the briefs and conduct the usual conference following the oral argument. Decisions must be unanimous, and a written decision is issued in each case. (3) In addition, the court has established a goal of issuing decisions in these cases within two to three weeks of argument. This goal is realistic because it is not necessary to put each order through the formal process that a full decision requires. Finally, 3JX decisions are not published and do not carry precedential value.
If the three justices cannot reach a unanimous decision on all the issues, they may order the parties to file additional briefs. Alternatively, they may decide some issues and order reargument before the full court of other issues or the entire case.
While it might be ideal for the supreme court to write a full decision in every case accepted for argument, there are many cases which lend themselves to decision by this expedited procedure. By court rule, with consent of the parties, the three-judge panel may recommend to the full court that a published opinion be issued in the case. (4) If the court accepts the referral, the two justices not on the panel may participate in the opinion by reading the briefs and listening to the tapes of oral argument. (5)
The rule establishes criteria for selection of cases for the 3JX docket, including but not limited to appeals:
* involving claims of error in the application of settled law;
* claiming an unsustainable exercise of discretion where the law governing that discretion is settled; [or]
* claiming insufficient evidence or a result against the weight of the evidence. (6)
The court rule also provides several significant features. Counsel are limited to five minutes of uninterrupted oral argument, supplemented by whatever time is necessary for counsel to answer questions from the justices, rather than the usual fifteen minutes. (7) This change allows the court to schedule up to twelve cases on a single day. …