Judge Chris McFadden: Add staff to delay expanding the court.
Judge Chris McFadden: Add staff to delay expanding the court. (File photo)

A panel of Georgia appellate court judges and practitioners on Friday discussed possible changes to how the state appellate courts handle cases, including shifting jurisdiction between the two courts and adding more judges.

The remarks came at a Georgia State University Law Review Symposium held at Alston & Bird’s offices in Atlanta. Moderated by Bondurant Mixson & Elmore partner Michael Terry, the discussion focused on how the state Court of Appeals handles its cases and strategies for managing that court’s relatively high caseload.

The Court of Appeals judges on the panel, Christopher McFadden and Carla Wong McMillian, described a decision-making process that McFadden referred to as “serial deliberation.” He said one judge drafts an opinion and others consider the case in order of seniority, and she explained that judges don’t have formal meetings to discuss their cases.

McFadden said the system works well most of the time but can cause problems when a difficult case remains unresolved as the constitutionally imposed deadline for deciding the case approaches. (Under that rule, known as the two-term rule, the state’s appellate courts must decide a case within two of the courts’ three annual terms.)

The two practitioners on the panel, Alston & Bird partner Kyle Wallace and Robert Marcovitch of Weinberg Wheeler Hudgins Gunn & Dial, described a court whose judges are relatively quiet during the few oral arguments the court hears. They surmised the few questions from the bench may be a result of the court’s practice of assigning which judge will write the opinion as a case is docketed. Marcovitch said he had been “unnerved” to learn of that assignment practice, saying he was worried that an individual case doesn’t receive equal attention from all three judges assigned to consider it.

McFadden said there had been what he called a “bloodletting” in 2008, when the court lost about 10 staffers, including staff attorneys that serve the entire court, due to budget constraints. And McMillian said the court faces pressures driven by the two-term rule, with each of her three staff attorneys having to draft about 1½ rulings per week.

McFadden said one possible consequence of the court’s decision-making process and the two-term rule is that sometimes not every judge assigned to review a case has a “fair time” to consider it, as they wait for other assigned judges to consider the matter one-by-one. McFadden noted that his colleague Stephen Dillard in 2012 concurred “dubitante in judgment only” with an opinion in a trusts and estates matter that was decided at the end of the court’s term. “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.

Dillard said in his concurrence 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.” McFadden quipped that it was a “concurrence Dillardtante,” adding, “if he didn’t pull an all-nighter before he did that, it was pretty darn close.”

Marcovitch said that one positive aspect of the two-term rule was being able to answer clients’ inquiries as to when the court will decide their cases. No panelist proposed doing away with a deadline altogether.

But there were some modifications suggested. Wallace suggested a three-term rule might be better, acknowledging, “it may not change anything.”

McMillian noted that the Georgia Supreme Court by statute gets to set the terms of court and has on occasion, such as in the 2011 case of a challenge to the state’s charter schools commission, extended a term for the purpose of completing a decision in one case. She and McFadden wondered whether there might be a mechanism, such as an application with the state Supreme Court, for the appeals court to get more time in an exceptional case, such as one in which the number of judges deciding the case is expanded to seven or 12 judges. Under the court’s procedures, the slate of judges hearing a case expands from three to seven if the assigned three-judge panel cannot agree on the result, and to all 12 judges if one of the judges advocates that a precedent be overturned.

McFadden said that as a result of the pressures on the court, he had seen increased usage of unpublished opinions and affirmances under court Rule 36, in which the court affirms the trial court without issuing an opinion.

McFadden said there was a “pretty good argument” to publish fewer opinions. He said he applies the “20-minutes-of-my-life-I’m-never-going-to-get-back rule,” explaining that if that’s his reaction to reading an opinion, perhaps the opinion should not be published. But he said it was “regrettable” for the court to use those tools, particularly Rule 36, in reaction to time pressures. “It’s something that I regret that happens to lawyers sometimes,” said McFadden.

“The clients also can’t stand it,” added Marcovitch.

McMillian replied that she was sympathetic to practitioners who didn’t know what to tell their client about a Rule 36 opinion. But she said even when the court affirms under Rule 36, there are “significant memos” being exchanged behind the scenes. “It’s not like we haven’t worked on your case,” she said.

McMillian called use of unpublished decisions “an important tool,” noting that when she was a trial judge in Fayette County State Court, a search on an issue in a slip-and-fall case would turn up a thousand decisions. “There are cases where it’s just the same issue that we see over and over,” she said.

Ultimately, the discussion turned to what additional resources would best allow the court to tackle its work.

McMillian noted that Chief Judge Herbert Phipps has asked the Legislature for funding for more staff attorneys, saying she hoped that request would be granted. She also said she would like the court to have the ability to receive trial court records electronically, something she said she expected the court would begin testing in the next couple of months.

McMillian said it was “above my pay grade” to say whether it were politically possible to add a new panel of three judges. McFadden said that increasing the size of the court was a matter of “not if, but when.” But he added expansion of the court’s bench would come with negative consequences and therefore should be postponed by giving the judges more staff attorneys.

He said that when he was in private practice, his reaction to judges who talked about collegiality was, “Get over yourself; just do the job.” As a judge, he said, he has come to see the importance of cooperation among the judges.

Discussing other proposals, he said he did not like the prospect of dividing the court by geography or subject matter. He said a geographic division would create “the law of Atlanta and the law of the rest of the state.” If the court were divided by subject, he said, elections for the criminal division would be decided by who promised most loudly to be “tough on crime.”

Asked what he would change about the appellate courts, Marcovitch said that he would like a way for a party to initiate review of a case by a greater number of the state Court of Appeals’ judges. Unlike at the U.S. Court of Appeals for the Eleventh Circuit, a party before the state appeals court cannot ask the full court to reconsider a three-judge panel decision.

Wallace, who is co-authoring a law review article on the Georgia appellate courts’ caseload and jurisdictional allocation, advocated shifting some of the state Supreme Court’s work, such as cases over title to land, to the Court of Appeals, then adding a panel of three judges to the appeals court. Under the current rules, he said, the Supreme Court handles many relatively unimportant cases, and the two courts waste resources trying to determine which court should hear a case.