Division of Labor: the Modernization of the Supreme Court of Georgia and Concomitant Workload Reduction Measures in the Court of Appeals

• Publication year: 2014

Division of Labor: The Modernization of the Supreme Court of Georgia and Concomitant Workload Reduction Measures in the Court of Appeals

Kyle G.A. Wallace
Alston & Bird LLP, kyle.wallace@alston.com

Andrew J. Tuck
Alston & Bird LLP, andy.tuck@alston.com

Max Marks
Alston & Bird LLP, max.marks@alston.com

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DIVISION OF LABOR: THE MODERNIZATION OF THE SUPREME COURT OF GEORGIA AND CONCOMITANT WORKLOAD REDUCTION MEASURES IN THE COURT OF APPEALS

Kyle G.A. Wallace, Andrew J. Tuck, and Max Marks, Alston & Bird LLP^*

Abstract

This article addresses two distinct yet interrelated topics: the arcane and unnecessarily complex jurisdictional division between the Georgia Supreme Court and Georgia Court of Appeals, and the excessive caseload at the Georgia Court of Appeals. The topics relate to one another because, as will be seen, any attempt to clarify the jurisdictional division of labor between these courts, and convert the Supreme Court into more exclusively a court of last resort, will necessarily increase the caseload at the already-overworked Court of Appeals. Consequently, any amendment to appellate jurisdiction in Georgia requires concomitant measures to reduce the per judge caseload at the Court of Appeals. In Part I.A., this article discusses Georgia's appellate system—its history, the jurisdictional division that arose, the confusion the current jurisdictional framework creates, and the limitations and burdens it places on Georgia's highest court. In Part I.B., the article discusses the current caseload at the Court of Appeals and the burden any jurisdictional reforms would have on the Court of Appeals. In Part II, the article presents a new clear jurisdictional framework for the Georgia Supreme Court and Georgia Court of Appeals, and at the same time, offers cost-effective solutions to ease the burden at the Court of Appeals, so that these jurisdictional changes can be implemented.

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Table of Contents

I. Background......................................................................927

A. Georgia's Appellate System.......................................927

1. Brief History.........................................................927
2. Structure and Jurisdictional Division..................930

B. Georgia's Overworked Court of Appeals..................933

1. 1996 Report of the Commission on the Appellate Courts of Georgia.................................................933
2. 2001 Report of the Supreme Court of Georgia Blue Ribbon Commission on the Judiciary...................935

II. Analysis and Proposal..................................................938

A. Problems From 1996 Still Exist.................................938

1. The Georgia Court of Appeals Continues to be one of the Busiest Intermediate Appellate Courts in the Nation...................................................................938
2. The Jurisdictional Division Between the Supreme Court and the Court of Appeals Continues to Create Tension and Confusion.........................................942

B. Time for a New Look at Structural Change...............947

1. Recommendations for Comprehensive Reform of Georgia's Appellate System That Should Occur Now.......................................................................948

a. Converting the Supreme Court of Georgia Into a True Certiorari Court of Last Resort.............949
b. The Size of the Court of Appeals Should be Increased to Address Historical Shortfalls and to Compensate for the Court's Expanded Direct Appellate Jurisdiction.....................................949

2. Additional Caseload-Easing Proposals That Should be Considered.......................................................953

a. Amending O.C.G.A. § 15-3-1(g) to Allow Use of Current Superior Court Judges to "Sit by Designation" on Panels of the Court of Appeals...........................................................954
b. Allowing Dissents in Three-Judge Panels......958
c. Appellate Mediation.......................................959
d. Subject Matter and Regional Courts of Appeal.............................................................960

Conclusion............................................................................962

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I. Background

A. Georgia's Appellate System

1. Brief History

Georgia's early history is marked by "apparent hostility . . . toward appellate courts in general."¹ For its first seventy years of existence, Georgia did not have any appellate courts at all, and Georgia's courts have grown slowly since that time.² In 1845, after extensive legislative debate about the unchecked power of superior court judges, the Supreme Court of Georgia was created and staffed with three Justices, making Georgia the last state then in existence to create an appellate court system.³ As the only appellate court in the state, the Supreme Court's primary role was "the correction of errors in judgments rendered in the superior courts of this state."⁴ Because the Supreme Court had jurisdiction over all appeals, as Georgia steadily grew, the court's workload increased.⁵ By 1894, "the workload of the court became so heavy that Chief Justice Logan Bleckley resigned . . . because he was physically exhausted."⁶

The Georgia legislature addressed the Supreme Court's overload in two ways. First, the legislature voted to expand the Supreme Court from three Justices to six in 1895 (the court would reach its current size of seven in 1945).⁷ Second, the legislature created a three member Court of Appeals in 1907 "[t]o further relieve the increasing workload of the Supreme Court."⁸ As originally conceived, the Court of Appeals was "designated a court of final jurisdiction."⁹ Though the Court of

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Appeals could itself certify questions to the Supreme Court, the Supreme Court did not have certiorari jurisdiction.¹⁰ Consequently, the Supreme Court could not review any decisions of the Court of Appeals and could only decide cases that fell within the Court of Appeals' direct appellate jurisdiction if the Court of Appeals asked for guidance by certifying a question to the Supreme Court.¹¹ For practical purposes, during this time the Supreme Court and Court of Appeals were parallel courts of last resort depending on which court had jurisdiction over the appeal.¹²

In 1916, the Georgia legislature doubled the size of the Court of Appeals to six, and Georgia's Constitution was amended to redistribute jurisdiction between the Court of Appeals and Supreme Court in two ways.¹³ First, the direct appellate jurisdiction of each court was modified to be based on the subject matter of the case rather than the lower court from which the case was appealed.¹⁴ The subject matter-based jurisdictional division in the 1916 Constitution is essentially the same as the jurisdictional split under today's Constitution.¹⁵ Second, the 1916 Constitution gave the Supreme Court certiorari jurisdiction over all cases within the Court of Appeals' direct appellate jurisdiction, making the Supreme Court a true court of last resort sitting in review of decisions of the Court of Appeals, while at the same time retaining considerable direct review jurisdiction.¹⁶

As Georgia continued to grow, the Court of Appeals—bearing a majority of the direct appeal jurisdiction with only six judges—began to experience strain.¹⁷ The Georgia legislature dealt with this problem primarily by increasing the number of judges.¹⁸ In the early 1960s, the Court of Appeals grew to seven in 1960 and then to nine in 1961.¹⁹ In

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the late 1990s, the Court of Appeals expanded again, first growing to ten in 1996, then reaching its present size of twelve in 1999.²⁰ This history of "intermittent increases in judgeships" on the Court of Appeals from its creation with three judges in 1907 to the increase to nine judges in 1961 roughly kept pace with Georgia's population growth.²¹ As shown by the table below, Georgia's population has more than doubled since 1961, yet the State has added only three judges to the Court of Appeals.

Table 1—Population and Judges Over Time

Date	Ga. S.Ct. Justices	Ga. App. Judges	Total Appellate Judges	Population*	Population/Appellate Judge
1835	0	0	0	604,108	N/A
1845	3	0	3	798,789	266,263
1895	6	0	6	2,026,842	337,807
1907	6	3	9	2,505,000	278,333
1916	6	6	12	2,856,000	238,000
1945	7	6	13	3,119,000	239,932
1960	7	7	14	3,949,000	282,071
1961	7	9	16	4,015,000	250,937
1996	7	10	17	7,501,000	441,235
1999	7	12	19	8,046,000	423,474
2012	7	12	19	9,920,000	522,105

* Population figures are approximate based on census data. For instance, the figure for 1895 is the average of 1890 and 1900 census data. Data for years after 1900—also based on census data—was pulled from https://www.google.com/publicdata/explore?ds=kf7tgg1uo9ude_&ctype=l&strail=false&bcs=d&nselm=h&met_y=population&scale_y=lin&ind_y=false&rdim=country&idim=state:13000&ifdim=country&hl=en&dl=en&ind=false.

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2. Structure and Jurisdictional Division

Under Georgia's Constitution, the Supreme Court has a dual role. First, the Supreme Court retains its historical role as an error-correcting court by exercising direct appellate jurisdiction over certain classes of cases.²² Second, the court has the familiar modern role as a court of last resort and carries the "ultimate responsibility for maintaining uniformity and coherence in [Georgia's] legal doctrine."²³ The court acts as a single body in presiding over its cases. The Georgia Constitution requires a majority of Justices present to hear each case.²⁴ While the maximum number of Justices is capped at nine by the Constitution, there has been no substantial push to increase the size of the Supreme Court beyond seven.²⁵

The Supreme Court's direct appellate jurisdiction covers...