Historical Antecedents of Challenges Facing the Georgia Appellate Courts
| Publication year | 2014 |
Historical Antecedents of Challenges Facing the Georgia Appellate Courts
Michael B. Terry
Bondurant Mixson & Elmore LLP, terry@bmelaw.com
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The Georgia appellate courts face challenges common to many courts in these days of reduced governmental resources.1 At the same time, the Georgia appellate courts face unusual challenges that can be traced to their historical antecedents and one unique constitutional provision: the "Two-Term Rule."2
Just as "[t]he law embodies the story of a nation's development through many centuries,"3 the current rules and practices of both the Supreme Court of Georgia and the Court of Appeals of Georgia embody the story of the development of those courts since their founding. Several aspects of the history of the courts directly impact the challenges facing those courts today.4
Three important aspects of the history of Georgia's appellate courts are (i) legislative resistance to the creation and expansion of the appellate courts; (ii) the constitutional "Two-Term Rule";5 and (iii) attempts by the executive and legislative branches to deprive the courts of necessary funding. To this day, the Georgia appellate courts have too few judges, are understaffed and under-funded for the number of
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cases they must handle, and are subject to a unique constitutional mandate that cases be decided on a strict time schedule.6 This confluence of issues has led to the adoption of rules, procedures, and customs designed to move cases quickly and efficiently through the system with minimal resources. Such measures have alleviated but not eliminated the problem.
By 1845, Georgia was the only state with no appellate court.7 The original Georgia Constitution of 1777 provided for superior courts, which in Georgia are trial courts.8 There was no right of appeal.9 The only redress for improper outcomes were a demand for new trial (as of right)10 before a different jury in civil cases, a reprieve from the Governor and/or pardon by the Assembly in criminal cases,11 and an appeal to the Continental Congress in cases involving "captures" or prizes of war.12 In 1789, a new trial became no longer available upon
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demand but was vested in the discretion of superior court judges.13 This was still the only avenue of "appeal" from a civil judgment.14
In the 1798 Constitution, the superior courts were authorized to hear appeals from the inferior courts on writs of certiorari.15 However, the Constitution forbade any appeal being brought to a court outside the county where it was tried.16 Thus, probate court cases could be reviewed on certiorari by a trial court of general jurisdiction in the same county.17 There were still no true appellate courts in the state.
In the absence of an appellate court to resolve divergent lines of cases, the superior court judges sought to achieve uniformity through coordinated approaches to cases and controversies.18 The judges were repeatedly halted in their efforts by a legislature determined to curtail judicial power and, in particular, to avoid the power of judicial review. For example, from 1799 until 1801, the superior court judges met annually to set rules and discuss points of law that had been reserved until the annual meeting for argument.19 The purpose was to provide for consistent opinions. The legislature in 1801 forbade this procedure, and required "[t]hat all points reserved for argument, and now waiting a decision . . . be and the same are hereby directed to be sent back to the respective counties from whence they have been sent, and there decided by the presiding Judge."20 Legislative hostility to a powerful or coordinated judiciary was hallmark of early Georgia, with repeated interventions by the legislature into efforts of the judiciary to organize and coordinate.21
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A. The Creation of the Supreme Court of Georgia
Georgia's Constitution was finally amended in 1835 to authorize a Supreme Court "for the Correction of Errors."22 The Supreme Court consisted of three judges, elected by the legislature.23 There was no Chief Judge or Justice.24 The Supreme Court had no original jurisdiction, but was solely "a court alone for the trial and correction of errors in law and equity from the Superior Courts of the several circuits."25 The initial constitutional amendment creating the Supreme Court also contained the first version of the "Two-Term Rule."26 The Two-Term Rule has had a major and lasting impact upon the rules and decision-making processes of the Georgia courts, as discussed in greater detail below.
Despite constitutional authorization in 1835, the General Assembly did not implement and fund the creation of the Supreme Court until 1845 (effective in 1846).27 In 1863, the position of Chief Justice was created. The first Chief Justice was Joseph Henry Lumpkin.28
The Supreme Court's workload in the early years was staggering. The long hours worked by the Justices drew the attention and support of the organized Bar.29 Only after years of lobbying by the Court and organized Bar, the Constitution was amended in 1896 (effective 1897) to provide for the addition of three Justices to the Court, for a total of
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six.30 This amendment also provided that Justices and the Chief Justice would be elected by the people.31
Forty-nine years later, the Constitution of 1945 provided for the addition of a seventh Justice.32 Since that time, the number of Justices on the Supreme Court has remained at seven.33 Although the Constitution of 1983 authorized the General Assembly to increase the size of the Supreme Court to nine Justices,34 the General Assembly has not acted upon this authorization. As the population and commerce of the State of Georgia have continued to grow, the number of appellate judges has consistently fallen behind.35 Each increase in the number of Justices has taken years to accomplish after the need became obvious, with the result that the Court has functioned for essentially its entire history with fewer Justices than its caseload justified.
B. The Creation of the Court of Appeals of Georgia
In 1895, after a constitutional amendment to increase the Justices of the Supreme Court from three to five failed to pass, the organized Bar proposed the creation of an intermediate appellate court as an alternative to the unpopular expansion of the Supreme Court.36 Although the proposal was to create a single intermediate appellate court, there was an alternative proposal included to create five geographical districts with each district having its own intermediate appellate court.37
The Bar's proposal was not acted upon by the legislature, but in 1897, the Supreme Court was finally increased to six Justices.38 However, as the population and commerce of the state continued to grow, the appellate caseload remained unmanageable for a single
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appellate court consisting of a single panel.39 In effect, every appellate judge in the state had to act on every single appeal in the state.
In 1902, the Bar again called for the creation of an intermediate appellate court.40 A bill to amend the Constitution was submitted in 1902, but was not acted upon by the legislature.41 Once again, in 1903 the Bar called for the creation of a Court of Appeals.42 The proposed Court of Appeals would have a Presiding Judge and four Associate Judges.43 But until 1906, the legislature refused to act.44
After twelve years of lobbying by the Bar, in 1906, a bill to submit to the electorate an amendment to the Constitution "to provide for the establishment of a Court of Appeals and to define its powers and jurisdiction" was approved by the legislature.45 The amendment was ratified that year, creating the Court of Appeals.46 The first three judges of the Court of Appeals were elected in November 1906.47 The court convened in early January 1907, and heard arguments and issued its first opinions by January 11, 1907.48
During the first ten years of its existence, there was no review of the Court of Appeals' decisions by the Supreme Court of Georgia.49 The unavailability of such review allowed direct petitions for certiorari to the United States Supreme Court from decisions of the Georgia Court of Appeals.50
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The existence of two courts of last resort in the state created conflicts. In 1916, a constitutional amendment limited Supreme Court jurisdiction and enlarged the Court of Appeals' jurisdiction.51 The General Assembly the same year added three judges to the Court of Appeals and provided for them to sit in two divisions of three.52 All criminal cases were to be assigned to one division, which would also handle some civil cases.53 The other division handled only civil appeals.54 To balance the workload, the court decided that two criminal cases would equal one civil case.55
In 1960, the Court of Appeals was enlarged to seven judges56 and in 1961 to nine.57 The Court of Appeals then sat in three divisions of three judges each.58 In 1996, the legislature added a tenth judge, rejecting efforts by the Bar and Governor to increase the number to 12.59 However, the eleventh and twelfth judges were added to the Court of Appeals in 1999, and the court then comprised four divisions of three judges each.60
The growth of the court has not kept up with the population growth of the state, the economic growth of the state, nor the appellate caseload. The Court of Appeals of Georgia has been, for many years, one of the busiest intermediate appellate courts in the country.61 It has more cases per judge than most other courts.62
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The Court of Appeals has statewide appellate jurisdiction of all cases except those involving constitutional questions, land title disputes, the construction of wills, murder, election contests, habeas corpus, extraordinary...
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