One of the peculiarities of being an appellate judge in Georgia is a strict deadline system for deciding cases.
Judges can’t change the rule; it’s set by the state Constitution. But they can change how they manage their work to comply with that rule, and some of the newer members of the state Court of Appeals are speaking out about how the court may do things differently.
In public remarks and written opinions, the new judges are lifting the curtain on how the court struggles with competing concerns of getting decisions right, reaching unanimous decisions when possible and keeping up with a relentless caseload.
One judge appointed to the court in 2010, Stephen Dillard, has lamented in recent opinions the constraints imposed by the constitutional deadline, which requires the state appellate courts to resolve cases within two of the courts’ three annual terms of court.
Last week, several judges appointed to the court even more recently discussed the issue during an event at an Atlanta law firm. Judge William Ray II suggested the judges, who generally decide cases in panels of three unless they cannot agree on the outcome, should meet with their panels to discuss cases more often. The court’s newest judge, Carla Wong McMillian, said judges should flag the more difficult cases for earlier treatment.
At the May 21 event at Kilpatrick Townsend & Stockton, organized by the Atlanta lawyers’ chapter of the Federalist Society, former chapter president and current Georgia Supreme Court Justice Keith Blackwell posed questions to four judges who must face the voters next year to keep their seats: Ray, McMillian, Court of Appeals Judge Elizabeth Branch and Supreme Court Justice P. Harris Hines.
In an early discussion about the types of opinions the judges may issue, Blackwell noted that Dillard once wrote an unusual opinion in which he concurred "dubitante in judgment only." "Dubitante" means a judge has some doubts, while "in judgment only" means the judge agrees with the result but not the reasoning of the panel’s main opinion. On the Court of Appeals, concurring "in judgment only" to the decision of a three-judge panel means it cannot be considered court precedent.
Blackwell was referring to a November opinion issued by Dillard in a trusts and estates matter that was decided at the end of the court’s term. The main decision was authored by Chief Judge John Ellington and joined by Judge Herbert Phipps. Dillard said that the two-term rule precluded him "from engaging in the type of extended study necessary to achieve a high degree of confidence that my experienced, able colleagues are right."
In April, Dillard wrote a dissent in an criminal case decided by all 12 members of the court at the end of the court’s term. Again he suggested the two-term rule hindered the court’s mission, arguing that "the limited amount of time that many members of the Court had to consider the complex issues presented by this appeal" was a reason to send the case back to the trial judge to re-examine.
Ray indicated at last week’s event that the ability to reach a unanimous decision is sometimes a casualty of the deadline.
Achieving unanimity becomes more difficult as the end of the term approaches, he explained. Earlier in the term, he said, "it’s a lot easier to go back and forth with each other." Later, he said, a judge simply might concur in judgment only and hope the parties file a motion for reconsideration, giving the judges more time to examine the case.
Blackwell said he found "distress day"—what court insiders call the final day of the term, when any remaining cases must be decided—an "interesting experience." He explained that he always was concerned that the harder cases would be taken down to the wire. What, he asked the panelists, could the Court of Appeals do to ensure time for deliberation on such hard cases?
Ray said he would like to see the Court of Appeals judges formally meet with their panels to discuss their cases as the end of the term approaches. "We do it informally already," he said.
McMillian said she agreed the judges should conference more. "Each chambers can also have some discipline," she added, explaining that her law clerks summarize all of her cases so that more difficult cases can be flagged and tackled sooner rather than later.
In a discussion about the value of oral argument, which is not routine in cases handled by the Court of Appeals, Branch noted that lawyers may get earlier attention to their cases if they request oral argument. If a request is granted, the judges will talk about the case much earlier in the appeals process, she explained.
Hines called the two-term rule "a double-edged sword." But he said there was a way around it: The court can extend the term so it has extra time to decide a particular case.
The state Supreme Court did that in 2011, when the justices issued a late decision in a fight over the state’s approval of charter schools.
But even if the high court can employ this tactic, there’s at least some doubt about whether the Court of Appeals can. In Dillard’s April dissent discussing the two-term rule, he said that although the Supreme Court has the authority to extend the term so that a party may file a motion for reconsideration, and his court has in the past claimed to have such authority, he strongly disagreed that his court actually had that power.