Potential Realignment of the Georgia Appellate Courts’ Jurisdiction

Following close on the expansion of the Georgia Court of Appeals from 12 judges to 15, Governor Deal has appointed a commission to study potential reallocation of the caseloads of the Court of Appeals and the Georgia Supreme Court. This comes amid news that Deal would like to expand the Supreme Court from seven justices to nine.

The likely shape of this realignment is fairly clear. See generally Kyle G.A. Wallace, Andrew J. Tuck, and Max Marks, Division of Labor: The Modernization of the Supreme Court of Georgia and Concomitant Workload Reduction Measures in the Court of Appeals, 30 Ga. St. U. L. Rev. 925 (2014). Direct appeals in equity cases and cases involving title to land, wills, habeas corpus, extraordinary remedies, divorce, and alimony would start going to the Court of Appeals rather than the Supreme Court as they do now. The Supreme Court would not take any new categories of cases, but would have the time to take more cases by certiorari. The Georgia Supreme Court would still be less of a pure certiorari court than the U.S. Supreme Court. Appeals would still go to the Supreme Court without certiorari in cases involving constitutional construction, election contests, or equal division of the Court of Appeals.

The trickiest question is probably what to do with murder cases. The Supreme Court currently takes all murder appeals under State v. Thornton, 253 Ga. 524 (1984). They make up a large part of the Supreme Court’s caseload, and Wallace et al. recommended reallocating such cases to the Court of Appeals. I have doubts. If the Supreme Court didn’t want to take all murder cases, it surely could have found a way to interpret “cases in which a sentence of death was imposed or could be imposed” more narrowly than it has. Ga. Const. Art. VI Sec. VI Para. III(8). After all, the Court has interpreted the other subparts of Paragraph III fairly narrowly. So there seems to be some institutional support for keeping murder appeals in the Supreme Court as a policy matter. Justice Nahmias, who is on Deal’s reallocation commission, mentioned this issue in his June 24 remarks to the State Bar’s Appellate Practice Section. I didn’t take notes and don’t want to misquote him, but I got the impression that he thought at least some murder appeals would continue going directly to the Supreme Court.

The main obstacle to realignment is inertia, which is what seems to have prevented similar reforms for many, many years. But we have seen significant criminal justice reform and the Court of Appeals expansion under Deal already, so maybe this will be the time that realignment finally happens. I think it’s pretty clear that realignment would be a good thing, so rather than belaboring that point I’ll make some others.

Realignment makes tough-but-winnable appeals more winnable. Let’s say you have a case where 60% of judges would hold for A, and 40% of judges would hold for B. With majority rule, and a panel of a hundred judges, B’s chances of success would be vanishingly small. But with smaller panels, B’s chances of winning increase, and with a single judge, they go all the way up to 40%.

What I’m trying to convey politely is that small panels are more likely to produce, let’s say, “odd” results. Some might define results as “wrong” if most judges would disagree with them. But it’s just a matter of math, and has nothing to do with the quality of the judges. With many direct appeals moving from the Supreme Court to the Court of Appeals, and from seven-justice to three-judge panels, we’ll see more odd results. From the point of view of a lawyer representing A, this is a bad thing, but from the point of view of a lawyer representing B, it’s an opportunity. All else being equal, clients with reasonable but weak arguments would rather take their chances with a small panel. To some degree, this effect will be offset by the increased availability of certiorari.

There will be a transitional period after any realignment. Realignment will have some short term effects. One is because the Court of Appeals, institutionally, does not have much experience with the subject matters that have been exclusively reserved to the Supreme Court. It will take some time for the folks around the Court of Appeals to get up to speed on the interpretation of wills, for example.

Also in the short term, the Supreme Court’s grants of certiorari will probably be affected. For decades, the Supreme Court has been deciding far more title to land cases, for example, than it probably wants or needs to decide. I’d expect for a few years that the Court will be unusually reluctant to grant certiorari in the types of cases it has long been hearing exclusively. So if realignment happens in 2016, good luck getting cert in a divorce case in 2017.

Put those two things together and I wonder if we’ll be seeing some bad law made over the next few years. The Court of Appeals, with relatively little experience in divorce cases, may soon be deciding all divorce cases, and those decisions will be left standing by a Supreme Court that’s had its fill of divorce law. But maybe I’m overthinking it.

I’m also curious to see how the transition date is handled. For example, notices of appeal filed up to a certain date might be decided under the current alignment rules, while notices of appeal filed after that date would be decided under the new rules. Lawyers who have a choice will need to think about which rules will be better for their clients.

No more bouncing between courts. A big benefit to the judicial system will be that it spends far fewer resources deciding which court has jurisdiction. For parties, that means some cases will get to the briefing stage faster, for better or worse. Far fewer cases will be transferred from the Court of Appeals to the Supreme Court and then back again. But the average time to resolve an appeal may actually go up, because a party that wants to drag out a land title case for a few more months now gets to drag it through two appellate courts instead of just one.

Realignment might affect the collegiality of the Supreme Court. I imagine the justices would downplay this suggestion, but realignment might make the Supreme Court less collegial, in appearance if not in reality. Many of the Court’s decisions today are frankly pretty easy and are before the Court only because the appellant has a right to an appeal. That makes for a lot of unanimous opinions and a spirit of agreement. When those cases are replaced with certiorari cases, we’ll see more dissents. By no means am I saying this will be a bad thing. But we can expect the Court to start showing a little more politicization and clearer ideological divides. In other words, more like the U.S. Supreme Court.

The Court of Appeals still needs expansion more than the Supreme Court. I don’t have an opinion one way or the other on expansion of the Supreme Court, as an independent matter. I will say that further Court of Appeals expansion would be more useful than Supreme Court expansion.

Expansion of the Court of Appeals from 12 to 15 judges just brings it from woefully understaffed to slightly less woefully understaffed. Although states track appellate statistics (see here and here), it’s hard to make precise state-to-state workload comparisons when each state has different appellate procedures. But New Jersey, for example, has a population and appellate caseload somewhat similar to Georgia’s. New Jersey has 32 judges on its intermediate appellate court.

In contrast, very few state supreme courts have so many as nine justices. According to Wikipedia, only five do. The federal system has nine Supreme Court justices, but it has 179 (approximately) intermediate appellate judges.

Adding justices to the Supreme Court doesn’t provide the same workload reduction benefits as adding judges to the Court of Appeals. Every justice still has to decide every case. If there’s money available for more Georgia appellate judges, it should be spent to increase the size of the Court of Appeals, again, rather than the Supreme Court.

It isn’t clear that realignment must be done legislatively. One final point. The Supreme Court, and some observers, seem to have taken for granted that, unless the legislature provides otherwise, the Supreme Court must exercise direct appellate jurisdiction over the categories of cases listed in Article VI, Section VI, Paragraph III. See, e.g., Neal v. State, 290 Ga. 563, 572 (2012) (Hunstein, C.J., concurring) (“Any efforts, however, to change our appellate jurisdiction in life-imprisonment murder cases under the 1983 Constitution should be directed to the legislature.”). The constitutional language is: “Unless otherwise provided by law, the Supreme Court shall have appellate jurisdiction of the following classes of cases: ….”

This text could also be interpreted to mean that the Supreme Court can hear such cases, but is not required to do so. Paragraph III has to be read in context with Paragraph II, the exclusive appellate jurisdiction clause. Paragraph II says the Supreme Court “shall exercise” exclusive appellate jurisdiction over constitutional and election contest cases; Paragraph III says the Court “shall have” appellate jurisdiction over title to land cases and so forth. See also Ga. Const. Art. VI, Sec. V, Para. III (“The Court of Appeals … shall exercise appellate … jurisdiction in all cases not reserved to the Supreme Court or conferred on other courts by law.”). “Whether or not it is desirable, it is at least textually possible that both courts have concurrent appellate jurisdiction over the cases within the Supreme Court’s non-exclusive general jurisdiction.” McFadden, Brewer & Sheppard, Georgia Appellate Practice, § 12:3 (2013-14.) It might be that the Supreme Court could realign the appellate courts’ jurisdictions itself without waiting for legislative action.

Politically, of course, that may be a non-starter, and I don’t expect the Supreme Court to carry out realignment on its own. But if the Supreme Court were facing a workload crisis, I think it could, consistently with the Constitution, start transferring Paragraph III cases to the Court of Appeals without waiting for the legislature.