In Rodriguez v. State, S13G1167 (June 30, 2014), the Georgia Supreme Court unanimously held that the Court of Appeals, where six judges voted to affirm and six to reverse or vacate, should have transmitted the case to the Supreme Court rather than rendering a decision. Article VI, Section V, Paragraph V of the Georgia Constitution states, “In the event of an equal division of the Judges [of the Court of Appeals] when sitting as a body, the case shall be immediately transmitted to the Supreme Court.” Although the opinions of the judges of the Court of Appeals were fractured (two joining a per curiam opinion, two concurring in part and in the judgment, two concurring in the judgment only, and six dissenting in three different categories), the Supreme Court reasoned that their equal division as to the ultimate result required transmittal under the Constitution.
Perhaps the best reason for the Supreme Court’s decision is found in footnote 5 of Justice Blackwell’s opinion (slip op. at 7): The trial court could not have known what to do on remand had the Court of Appeals’ decision in Rodriguez remained in effect. In some other courts, including the Georgia Supreme Court, the decision of an equally divided court is treated as an affirmance. See, e.g., OCGA § 15-2-16(a) (“If the Justices are evenly divided, the judgment of the court below shall stand affirmed.”). However, this arrangement is “not universal” and “[i]n order to determine the effect of a tie vote by any body acting in an appellate capacity, one must examine the laws and rules governing that particular body.” Cobb County v. Jones, 179 Ga. App. 240, 241 (345 SE2d 917) (1986) (holding, under rules governing civil service board, that tie vote “render[ed] no decision affirming or disaffirming”). But see Boeing Co. v. Gelman, 10 P.3d 475, 478 n.8 (Wash. App. 2000) (citing Cobb County v. Jones as an outlier, among decisions from other states holding tie votes equivalent to decisions even absent statutory authority). There is no counterpart to OCGA § 15-2-16 for the Court of Appeals. Rather than putting the trial court in the “untenable position” of trying to determine whether the order at issue had been affirmed or reversed, the Court of Appeals should have transmitted the case to the Supreme Court. Rodriguez, slip op. at 7 n.5.
The Court’s decision in Rodriguez leaves unanswered the question of what the trial court should have done had the Supreme Court not granted certiorari. Given the availability of certiorari, and the somewhat unusual nature of evenly divided decisions, that situation may rarely arise. As Judge Dillard’s dissent pointed out, 321 Ga. App. 619, 627 n.6 (746 SE2d 366), the Court of Appeals decided Rodriguez during distress on April 12, 2013, the last day of the court’s January 2013 term. The “limited amount of time that many members of the Court had to consider the complex issues presented by this appeal,” id., may have impacted the judges’ ability to clarify their decision. The Daily Report’s story on the case reports thatthe Court of Appeals’ decision was revised after it was sent to the parties, further suggesting that this was an unusual case not likely to be repeated. But was it even necessary or proper for Rodriguez rather than the State to petition for certiorari? As many votes in the Court of Appeals had been on her side as on the State’s.
The Supreme Court also concluded that “the Court of Appeals never should have rendered any decision in this case.” Slip op. at 2. See also slip op. at 7 (“the Court of Appeals ought not have rendered any decision”). Specifically, what the Court seems to mean is that the Court of Appeals should not have issued the per curiam opinion as if it resolved the outcome of the case. The Supreme Court does not seem to have any problem with the Court of Appeals issuing opinions in equally divided cases, as long as the cases are then correctly transferred. See Rai v. Reid, 294 Ga. 270, S13A1073, slip op. at 5 (Ga. Nov. 25, 2013) (discussing two opinions issued by equally divided Court of Appeals, and “agree[ing] with much of the position advocated in the writing of Judge McMillian”); Smith v. Ellis, 291 Ga. 566 (731 SE2d 731) (2012) (discussing two opinions issued by equally divided Court of Appeals, without suggesting they were improper). Although it is true that, for example, the United States Supreme Court has a practice of not issuing any opinions when it is equally divided, see, e.g., Warner-Lambert Co. v. Kent, 552 U.S. 440 (2008) (“The judgment is affirmed by an equally divided Court.”), it would be difficult for the Georgia Supreme Court to determine whether the Court of Appeals was in fact equally divided (and therefore whether the case was properly transmitted under the Constitution) if the lower court judges did not issue opinions at all.