Justice Keith Blackwell, the newest member of the Georgia Supreme Court, arrived with something most of his colleagues didn’t have: an appellate track record.
The last four appointees to the state’s highest court came from government service or the trial bench, so court-watchers could only guess at how they’d go about deciding appeals. But with Blackwell, who joined the court last month, observers can look at the 20 months he spent on the Georgia Court of Appeals.
A Daily Report analysis of that record indicates that Blackwell was more likely to side with prosecutors than criminal defendants in cases that divided the court. There were only a handful of personal injury cases that divided the judges, but Blackwell’s votes may give civil defendants and their insurers some comfort.
Perhaps more interestingly, Blackwell’s opinions reveal a distinctive writing style, one in which the now-37-year-old is willing to question decades of precedent on his court. Reminiscent of Justice David Nahmias, who in his first days on the high court probed whether it had a hole in its jurisdiction over some murder cases, Blackwell has not been shy when he thought precedent was wrong.
Appointed in 2010 by Governor Sonny Perdue to the Court of Appeals, Blackwell had been president of the Atlanta lawyers’ chapter of the Federalist Society and active in Republican politics. He also had a scholarly résumé, having graduated first in his law school and undergraduate classes at the University of Georgia. He secured a clerkship with Judge J.L. Edmondson of the U.S. Court of Appeals for the Eleventh Circuit before starting a 10-year litigation career that included stints at Alston & Bird and Parker, Hudson, Rainer & Dobbs and as an assistant district attorney in Cobb County.
“He will probably be ideologically aligned with Justice Nahmias, and probably Justice Melton,” says Philip Savrin, a civil defense litigator at Freeman Mathis & Gary in Atlanta. The three most junior justices, Harold Melton, Nahmias and Blackwell are the only members of the court who were appointed by Republican governors. “I think that could be a common bloc of votes,” said Savrin.
Blackwell declined to be interviewed for this story, relaying through a law clerk that he thought he should let his record speak for itself. The Daily Report examined all of the published Court of Appeals decisions in which Blackwell participated and in which the judges disagreed on the correct outcome. Those were cases handled by seven-judge panels, as is required when the usual three-judge panel cannot reach a unanimous decision, plus one split decision issued by a 12-judge panel, which is convened when the court is considering overturning its precedent.
To be sure, those cases represent only a sliver of the court’s decisions, as most are routine matters decided by a three-judge panel. Prosecutors and plaintiffs win some, while defendants win others, and the cases in which Blackwell participated were no exception. But the cases in which the court divided provide a window into how Blackwell’s voting record stacked up against those of his colleagues.
Among 13 such split decisions in criminal cases, Blackwell sided with the prosecution 12 times.
In December 2010, only about a month into his new gig, Blackwell wrote for a 5-2 majority in Hawkins v. State, 307 Ga. App. 253. That decision allowed the admission of evidence obtained when police searched an arrestee’s cellphone for text messages. The state Supreme Court unanimously affirmed that ruling, finding the search of the cellphone was allowed under the general rule that allows police to search containers found in the passenger compartment of an arrestee’s vehicle.
Blackwell would go on to pen several dissents to pro-criminal defendant rulings by his colleagues. Last summer, in Keaton v. State, 311 Ga. App. 14, Blackwell was the lone holdout against six judges who tossed an aggravated stalking conviction. He called his colleagues’ interpretation of the stalking statute a “judicial rewrite,” invoking Nahmias’ writings about the dangers of trying to discern legislative intent.
In Hodges v. State, 311 Ga. App. 46, Blackwell wrote a dissent to a 4-3 ruling in which the majority sided with a defendant over his attempts to prove he was acting in self-defense when he shot the victim. Blackwell said the majority’s approach conflicted with case law from the state Supreme Court. Notably, the high court validated Blackwell by reversing the appeals court ruling earlier this summer.
In Boyd v. State, 315 Ga. App. 256, decided a few months ago, Blackwell authored a lone dissent from the court’s decision to suppress a statement made by the defendant when he was 15 based on a variety of factors including the defendant’s youth and the interrogating officer’s urging him to “straighten out” what happened.
Among those split decisions, Blackwell favored the defense only in a 2011 child molestation case in which he joined a partial dissent that protested the prosecutor’s use of evidence that at the age of 11 or 12, the defendant had molested a much younger cousin. The dissent in Ledford v. State, 313 Ga. App. 389, said the prosecution had failed to show a connection between the alleged earlier incident and the acts for which he was being tried, including presenting evidence that the defendant had understood the nature of the acts he allegedly committed against his cousin.
Ocmulgee Circuit District Attorney Fredric Bright, who chairs the Prosecuting Attorneys’ Council of Georgia, said he hadn’t met or appeared before Blackwell. “But from everything that I’ve read or heard,” Bright said, “he appears to be exceptionally bright and will make a good jurist for the citizens of Georgia.”
Decatur attorney J. Scott Key, who chairs the amicus committee of the Georgia Association of Criminal Defense Lawyers, said he hasn’t heard his colleagues in the criminal defense bar complain about Blackwell’s decisions.
“I think he can be persuaded,” says Key, “and to me I like judges who can be persuaded by an argument.” He pointed to remarks he said Blackwell had made at public functions on the value of not publishing all opinions, lest a passing remark be taken as creating new law. That “suggests a careful approach to deciding cases with thoughtfulness about the impact of what he writes,” said Key.
He was also impressed by Blackwell’s willingness to revisit the logic behind past decisions. Some of the prime examples of Blackwell’s questioning precedent involved prior case law helpful to prosecutors.
Last year, for instance, Blackwell wrote a panel decision in Harrison v. State, 309 Ga. App. 454, in which he said “a reasoned analysis of the words of the statute appears nowhere” in state-friendly Court of Appeals case law on the elements of the state’s drug trafficking statute. Blackwell ruled for the state, anyway, saying even if the defendant were right about the statute, he wasn’t entitled to win his appeal given the evidence in the case.
Also last year, Blackwell concurred with a panel opinion that upheld a shoplifting conviction, Dixson v. State, 313 Ga. App. 379. But in his concurrence, Blackwell questioned the soundness of Court of Appeals precedent that says that an indictment’s allegation that a given statute was violated is the same as alleging every element of a violation of that statute.
Those opinions suggest Blackwell may turn out to be a more low-key version of Nahmias, who has raised eyebrows with both his written opinions and his tendency to dominate oral arguments. Shortly after he joined the court in mid-2009, Nahmias began questioning the court’s jurisdiction over certain cases, including murder cases in which the death penalty is not at issue. In at least one instance, Nahmias wrote a decision that summoned a court majority to overturn precedent.
The process for overturning precedent at the Court of Appeals is a little more complicated, requiring a case to be sent to all 12 judges of the court. A March 2011 decision in a slip-and-fall case illustrates how Blackwell questioned a decision of his court yet stopped short of advocating the precedent’s demise.
In Benefield v. Tominich, 308 Ga. App. 605, Blackwell agreed with the panel’s decision to side with the plaintiff. But he wrote separately to express doubts in Court of Appeals precedent that said a plaintiff does not need to show how long a foreign substance had been on the floor to survive summary judgment, unless the defendant has established that reasonable inspection procedures were in place and followed at the time of the incident. Noting the precedent, from 1998, had been set by the full court sitting together, Blackwell cited an Eleventh Circuit concurrence by Edmondson noting the costs of convening an en banc court.
Blackwell’s questioning of pro-plaintiff precedent is in line with his approach to personal injury cases in which the judges disagreed, but it may be too soon to draw conclusions given there are so few such cases.
In one case, Kane v. Landscape Structures, 309 Ga. App. 14 (2011), Blackwell wrote for a 5-2 majority that rejected a claim by a child injured when he fell from the top of a playground structure meant for much younger children to explore on the ground. Although a dissent noted the structure didn’t look dangerous, Blackwell wrote that playground equipment “need not look like a deathtrap to suggest to a nine-year-old child that climbing it is a bad idea.”
Blackwell dissented from a 5-2 majority in Great West Casualty Co. v. Bloomfield, 313 Ga. App. 180, which upheld a judge’s refusal to award fees to defendants who won a wrongful death case at trial — despite the plaintiffs’ rejection of a $25,000 pretrial settlement offer made under a controversial fee-shifting statute.
In another personal injury case decided 5-2 by the appeals court, Georgia Farm Bureau Mutual Insurance Co. v. North, 311 Ga. App. 281, Blackwell wrote a dissent, siding with an insurance company in its coverage dispute with an injured insured. Blackwell wrote that the majority had sought “to rewrite the clear and unambiguous terms” of a state insurance statute.
Although not a personal injury case, Blackwell further cemented his standing as part of the conservative wing of the appeals court in one of his last opinions there, a dissent from a major 4-3 ruling over home foreclosures, Reese v. Provident Funding Associates, No. A12A0619. The majority decided that a Georgia statute requires a foreclosure notice to properly identify a secured creditor. Blackwell said the majority opinion — and a federal district court opinion on which it was based — amounted to a “judicial rewriting” of the statute.
Atlanta plaintiff’s lawyer J. Marcus “Marc” Howard, who’s on the executive committee of the Georgia Trial Lawyers Association, said it’s too early to assess Blackwell’s approach. “I think the general consensus is that he is an extraordinarily intelligent person, and he comes from a good background,” said Howard. “[Although] he might have a different judicial philosophy than many plaintiff’s lawyers, I think it’s just too early to tell.”
Savrin, the civil litigator who is vice chairman of the appellate committee for the Georgia Defense Lawyers Association, said he thinks Blackwell will be good for his clients. “I think that he’ll be less inclined to broaden the law to create new causes of action, things of that sort,” said Savrin. “I think he’ll be more inclined to leave those types of decisions to the Legislature or [apply] precedent.”
Savrin added that he thought, given his background, Blackwell will bring what Savrin called an intellectual approach. Savrin pointed to Blackwell’s early opinion in the cellphone search case: “I thought that read like a federal judge’s opinion,” said Savrin. “He was able to synthesize some pretty complex issues in a way that, whether you agree with him or not, you understand.”