Justice Keith Blackwell noted that among states with similar populations, Georgia has the fewest intermediate appellate court judges per person. (Rebecca Breyer)
Asked to paint a picture of Georgia’s appellate courts 50 years down the road, a panel of lawyers and judges predicted major changes will occur as the court system copes with a growing caseload.
Shifting jurisdiction between the state’s appellate courts, subdividing the Court of Appeals by geography or subject matter and adding judges and staff were among the possibilities discussed at a Friday lunch at the mid-year meeting of the State Bar. Organizers of the event, sponsored by the bar’s appellate practice section, asked for the forward look by panelists in light of the bar’s 50-year anniversary.
The discussion began with a conversation about whether some of the Georgia Supreme Court’s work might be shifted to the Court of Appeals, with moderator Brandon Bullard, an appellate attorney with the Georgia Public Defender Standards Council, asking what would happen if the state Supreme Court were converted to a court that heard cases only on certiorari, plucking individual cases to review at its discretion. But the discussion shifted toward what the Court of Appeals might do to cope with the caseload it has under its current jurisdiction, a work load that likely will grow with the state’s population.
Although predicting population trends is an imperfect business, Friday’s conversation was based on the premise that Georgia would see significant population growth in 50 years.
Justice Keith Blackwell, who noted at the outset that neither he nor the panel’s other judge, state Court of Appeals Judge Stephen Dillard, were speaking for their respective courts or endorsing any particular change, brushed aside the idea that the state Supreme Court would be converted to a court that heard only certiorari cases. That’s essentially the sort of jurisdiction the U.S. Supreme Court has, but Blackwell said such a change would require constitutional amendments, and he didn’t think anyone had proposed that before.
Blackwell said there had been a proposal to move so-called “murder-life” cases, in which the death penalty hasn’t been imposed, to the Court of Appeals. But, noting 54 percent of the court’s opinions last year were in murder cases, he said that would impose a large burden on the Court of Appeals, possibly requiring the additional of several three-judge panels’ worth of judges. (“We could take the summer off like the U.S. Supreme Court,” quipped Justice David Nahmias, an attendee at the lunch who once wrote a dissenting opinion that questioned the court’s jurisdiction in hundreds of murder appeals over the years.)
Addressing what he said was a more likely change, Blackwell said that at the time of the 1983 redrafting of the state constitution a State Bar commission had proposed sending to the Court of Appeals what he called “civil appeals,” cases such as those over wills or title to land that currently skip the Court of Appeals and go directly to the Supreme Court. That would not require a constitutional amendment, he said, but would necessitate more resources for the Court of Appeals. Those cases produced 21 percent of the Supreme Court’s opinions last year, he noted. Such a change would give the justices more time to focus on certiorari cases, he said, predicting the court’s rate of granting certiorari petitions might increase from about 8 to 9 percent to about 12 to 13 percent.
Panelist Jeffrey Swart, an Alston & Bird partner who, like Blackwell and Dillard, has clerked for a federal court judge, said the Court of Appeals’ caseload means the court is “not really susceptible of being a collaborative court.” Three minds are better than one, said Swart, but “since we’re all friends here, what you really get in my impression is you get one mind that’s fully engaged and you have two minds that act as sort of a sanity check.” Swart suggested that in those cases in which the court decides to hear oral argument, assignment of the case to a particular judge could be delayed until after argument so that all three judges would be fully engaged at argument.
Dillard said he didn’t agree that the “full weight of the opinion” falls on only one judge, although he acknowledged the judge who authors a panel opinion may spend more time working on the case than the other judges on a panel. “We do have informal conferencing,” he said. “Some of it’s memo-driven. But there is conferencing and discussions that are going on between judges, between staff.”
He added that all of the Court of Appeals’ practices have to be viewed through the lens of the constitutional rule that mandates the state’s appellate courts resolve cases within two of the court’s three annual terms.
“We have a problem enough as it is dealing with the cases that we have,” Dillard added. “And what I would like is see is have us have the staffing … where we’re not triaging cases that shouldn’t be triaged.” He said adding more cases in a jurisdictional shift might require adding a new panel of three judges. Dillard, who joined the Court of Appeals long after it added three more judges to reach its current size of 12 in 1999, said he heard the court had lost some “collegiality” with that expansion.
“One of the things that I think is crucial for an appellate court is to have that level of collegiality between the judges … because when you have those disagreements it’s nice to have that relationship knowing that the person who’s disagreeing with you is not doing so in bad faith,” said Dillard.
Others suggested more judges may be in the cards. Among states with populations of 5 million or more, Blackwell said, Georgia has the fewest intermediate appellate court judges per person. He pointed to states with similar populations, New Jersey and Ohio, with many more intermediate appellate court judges.
Swart summed it up: “No [other] state that has a population this large … does it this way.”
Anna Green Cross, a deputy chief ADA in DeKalb County, noted some states divide their appellate courts by subject matter, such as where some judges handle only civil cases and others handle only criminal. “There is an efficiency to that idea,” said Cross.
A geographic division of the court is another idea, said Cross. “Knowing who the judges I am writing for and advocating to are makes a tremendous difference in how I approach a case,” she said. “So certainty in that regard is always better than uncertainty.”
James Bonner Jr., senior consulting attorney for the appellate division of the public defender standards council, said he thought there might be advantages to having such regional courts. “But one of the problems we’ve got is that our population is so skewed to the Atlanta area,” he said.
Looking 50 years ahead, Blackwell said he thought lawyers would see a much larger and perhaps restructured intermediate appellate court, such as a geographic or subject matter division, or a substantial increase in the number of appeals in which a party must file a request for discretionary review. He added that the latter was no panacea for managing a burgeoning case load, referencing an unnamed state Supreme Court case in which a 50-page memo prepared by a justice’s chambers lay behind a one-sentence order denying review.
Chiming in again, Nahmias predicted “radical” change for the courts, joking about technology that would allow him to hear oral arguments in his pajamas.
Some of the changes being discussed are the sort of things that happen only every half-century, he noted. “We have to really think about where are we going,” said Nahmias, suggesting a look at the U.S. Court of Appeals for the Eleventh Circuit, with its large central staff and practice of publishing few of its opinions.
“It needs to start now,” agreed Dillard, noting the reforms discussed take a lot of planning. “Unfortunately, human nature is you wait ’til the breaking point to actually address a problem.”