Demystifying the Inner Working and Culture of the Georgia

Special Contribution Open Chambers Revisited: Demystifying the Inner Workings and Culture of the Georgia Court of Appeals by Stephen Louis A. Dillard* I was sitting in my cluttered but comfortable office, preparing for what would ultimately be my last hearing as a lawyer, when the phone rang. On the other end of the line was Governor Sonny Perdue's executive assistant: "Mr. Dillard, do you have time to speak with the governor?" I did, of course. And less than two weeks after that brief but life-changing conversation with Governor Perdue, I was one of Georgia's two newly- appointed appellate judges (and the seventy-third judge to serve on the court of appeals since 1906).1 * Vice Chief and Presiding Judge, Georgia Court of Appeals. Samford University (B.A., 1992); Mississippi College School of Law (J.D., cum laude, 1996). Member, State Bar of Georgia. I am grateful to my friends and colleagues Justice Keith Blackwell, Chief Judge Sara Doyle, and Judges Michael Boggs, Lisa Branch, Christopher McFadden, Carla McMillian, Billy Ray, and Nels Peterson for their thoughtful comments on earlier drafts of this essay. I am also indebted to my staff attorneys, P. Robert Elzey, Mary C. Davis, and Tiffany D. Gardner, as well as Michael B. Terry and Benjamin R. Dinges, for their invaluable feedback and helpful suggestions. I also offer my sincere gratitude to Lydia Cook, my administrative assistant, for her encouragement and support throughout this process and for everything she does to make my chambers run as smoothly as possible. Finally, I am eternally grateful for the patience and loving support of my wife (Krista) and children (Jackson, Lindley, and Mary Margaret) in this endeavor, as well as in everything I do in my capacity as a judge. 1. The other judge appointed that day was my dear friend and colleague, Justice Keith R. Blackwell, who was later appointed by Governor Nathan Deal to the Georgia Supreme 1 2 MERCER LAW REVIEW [Vol. 68 Over six years have passed now, and during that time a great deal has changed at the court of appeals. Indeed, after spending less than two months as the junior judge, five additional judges were either elected or appointed to the court in just over two years. 2 Then, in April 2015, the Georgia General Assembly enacted legislation (House Bill 279)3 expand- ing the court of appeals from twelve to fifteen judges (as of January 1, 2016),4 which Governor Deal signed into law just a few weeks later.5 In other words, more than half of the court of appeals turned over in a very short period of time; and this has undeniably impacted the nature and personality of the court in a number of ways. But one constant remains: Much of what we do as appellate judges on the court of appeals is shrouded in mystery. I am not entirely certain why this is the case. It could be that (until recently) the culture of the court over the years has been for the judges to be fairly tight-lipped about our internal operating procedures. It may also have something to do with the practice of Geor- gia's appellate courts hiring permanent staff attorneys. Thus, unlike the federal judiciary, we do not send a wave of law clerks out into the work- force every year with "insider knowledge." But regardless of the reasons for its enigmatic character, my hope is that this Article will continue the process of demystifying some of the inner workings of Georgia's intermediate appellate court. This Article, then, is distinctly personal in nature. Suffice it to say, my perspective of the internal operations of the court of appeals is just that: mine and mine alone. And while I am certainly hopeful that the insights and observations I offer prove to be of some use to the bench and bar, they should in no way be understood as being universally accepted or endorsed by my distinguished colleagues. The reader should also under- stand that this Article is not intended to be academic or comprehensive Court on June 25, 2012. GEORGIA SUPREME COURT, http://www.gasupreme us/court-infor- mation/biographies/justice-keith-r-blackwell/ (last visited Sept. 9, 2016). 2. Judge Christopher J. McFadden was elected to the Georgia Court of Appeals in November 2010 for a term beginning on January 1, 2011. Governor Nathan Deal then appointed Judge Michael P. Boggs (Jan. 6, 2012), Judge William M. Ray (July 30, 2012), Judge Elizabeth "Lisa" L. Branch (Sept. 4, 2012), and Judge Carla Wong McMillian (Jan. 24, 2013) to the court of appeals. See generally GEORGIA COURT OF APPEALS, http:/www. gaappeals.us (last visited Sept. 28, 2016). 3. Ga. H.R. Bill 279, Reg. Sess., 2015 Ga. Laws 919. 4. Governor Nathan Deal appointed Judges Brian M. Rickman, Amanda H. Mercier, and Nels S.D. Peterson to the court of appeals in order to fill the vacancies created by House Bill 279 (effective Jan. 1, 2016). See generally GEORGIA COURT OF APPEALS, http://www. gaappeals.us (last visited Sept. 28, 2016). 5. See Clark v. Deal, 298 Ga. 893, 893, 785 S.E.2d 524, 525 (2016) (upholding the legality of Governor Deal's appointments). 2016] OPEN CHAMBERS REVISITED 3 in nature. It is meant to give practical advice to lawyers who regularly appear before the court of appeals on unique aspects of the court's internal operations, or, at the very least, provide practitioners with a useful perspective on certain practices from the viewpoint of a sitting appellate judge. I. THE COURT OF APPEALS CASELOAD, THE Two-TERM RULE, AND "DISTRESS" It has been said before, but it bears repeating: The Georgia Court of Appeals is one of the busiest intermediate appellate courts in the United States, 6 and the court's considerable caseload7 is only exacerbated by the two-term rule mandated by the Georgia Constitution, which requires that "[t]he Supreme Court and the Court of Appeals shall dispose of every case at the term for which it is entered on the court's docket for hearing or at the next term."8 This constitutional rule "imposes strict and (almost) immutable deadlines upon the merits decisions of [Georgia's appellate courts]," and the draconian remedy for the failure to abide by this rule 10 is "the affirmance of the lower court's judgment by operation of law" (something that has never occurred in the history of Georgia's appellate courts). It should come as no surprise, then, that many of the court's operations are reflected to some degree by the pressure placed upon the 6. See CHRISTOPHER J. McFADDEN ET AL., GEORGIA APPELLATE PRACTICE WITH FORMS 25-26 (2013-14) ("The record makes clear that both Georgia appellate courts regularly re- main in the top four state supreme and intermediate appellate courts in opinion load .... "); MICHAEL B. TERRY, GEORGIA APPEALS: PRACTICE AND PROCEDURE WITH FORMS 12 (2016) ("The Court of Appeals of Georgia has been for years and remains the busiest intermediate appellate court in the country, with more cases per judge than any other."); J.D. SMITH, How TO WIN/LOSE YOUR CASE IN THE GEORGIA COURT OF APPEALS: KNOWING HOW THE COURT DOES ITS WORK CAN MAKE THE DIFFERENCE 4 (11th Annual General Practice & Trial Institute, Mar. 15-17, 2012) (noting that the court of appeals caseload, "by many measures, is the largest of any appellate court in the country, and in terms of published opinions per judge, it is unquestionably the largest"). And while the addition of three new judges to the court of appeals in January 2016 has undoubtedly provided some degree of relief, the court continues to be one of the busiest intermediate appellate courts in the na- tion. Moreover, as discussed in greater detail infra, recently enacted legislation has shifted the jurisdiction of several categories of cases from the Georgia Supreme Court to the Geor- gia Court of Appeals, which will increase the workload of the court of appeals significantly. 7. In 2014, each of the court of appeals (then) twelve judges handled 263 filings, the bulk of which were direct appeals. See COURT OF APPEALS OF GEORGIA, http://www.gaapp eals.us/stats/index.php (last visited Sept. 9, 2016). 8. GA. CONST. art. VI, § 9, para. 2. 9. See TERRY, GEORGIA APPEALS, supra note 6, at 33. 10. In re Singh, 276 Ga. 288, 290 n.3, 576 S.E.2d 899, 901 n.3 (2003). 4 MERCER LAW REVIEW [Vol. 68 judges and staff by an extremely large caseload and the two-term rule." For example: o Unlike many appellate courts, the court of appeals randomly and immediately assigns each case docketed to a judge for the purpose of au- thoring the opinion. o There is currently no formal conferencing between the judges, 12 regardless of whether a case is scheduled for oral argument. o Oral argument is entirely discretionary, 13 is only granted in about one-third of the cases in which it is actually requested by the parties, will rarely be rescheduled due to personal or professional conflicts,1 4 and is not permitted for "applications or motions."15 o There are strict time limits for oral argument, strict page limits for appellate briefs,1 6 and strict deadlines for filing motions for reconsidera- tion, interlocutory applications and responses, and responses to discretionary applications.1 7 11. Michael B. Terry, HistoricalAntecedents of Challenges Facingthe Georgia Appel- late Courts, 30 GA. ST. U. L. REV. 965, 976 (2014) ('This constitutional rule imposes strict deadlines on the merits decisions of the Georgia Supreme Court and Court of Appeals ..

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