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Bar Panelists Speculate on Future of State's Appellate Courts

Larger caseload might lead courts to shift jurisdictions or subdivide by geography or subject matter, they suggest

, Daily Report

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Justice Keith Blackwell noted that among states with similar populations, Georgia has the fewest intermediate appellate court judges per person.
Justice Keith Blackwell noted that among states with similar populations, Georgia has the fewest intermediate appellate court judges per person.

Asked to paint a picture of Georgia's appellate courts 50 years down the road, a panel of lawyers and judges predicted major changes will occur as the court system copes with a growing caseload.

Shifting jurisdiction between the state's appellate courts, subdividing the Court of Appeals by geography or subject matter and adding judges and staff were among the possibilities discussed at a Friday lunch at the mid-year meeting of the State Bar. Organizers of the event, sponsored by the bar's appellate practice section, asked for the forward look by panelists in light of the bar's 50-year anniversary.

The discussion began with a conversation about whether some of the Georgia Supreme Court's work might be shifted to the Court of Appeals, with moderator Brandon Bullard, an appellate attorney with the Georgia Public Defender Standards Council, asking what would happen if the state Supreme Court were converted to a court that heard cases only on certiorari, plucking individual cases to review at its discretion. But the discussion shifted toward what the Court of Appeals might do to cope with the caseload it has under its current jurisdiction, a work load that likely will grow with the state's population.

Although predicting population trends is an imperfect business, Friday's conversation was based on the premise that Georgia would see significant population growth in 50 years.

Justice Keith Blackwell, who noted at the outset that neither he nor the panel's other judge, state Court of Appeals Judge Stephen Dillard, were speaking for their respective courts or endorsing any particular change, brushed aside the idea that the state Supreme Court would be converted to a court that heard only certiorari cases. That's essentially the sort of jurisdiction the U.S. Supreme Court has, but Blackwell said such a change would require constitutional amendments, and he didn't think anyone had proposed that before.

Blackwell said there had been a proposal to move so-called "murder-life" cases, in which the death penalty hasn't been imposed, to the Court of Appeals. But, noting 54 percent of the court's opinions last year were in murder cases, he said that would impose a large burden on the Court of Appeals, possibly requiring the additional of several three-judge panels' worth of judges. ("We could take the summer off like the U.S. Supreme Court," quipped Justice David Nahmias, an attendee at the lunch who once wrote a dissenting opinion that questioned the court's jurisdiction in hundreds of murder appeals over the years.)

Addressing what he said was a more likely change, Blackwell said that at the time of the 1983 redrafting of the state constitution a State Bar commission had proposed sending to the Court of Appeals what he called "civil appeals," cases such as those over wills or title to land that currently skip the Court of Appeals and go directly to the Supreme Court. That would not require a constitutional amendment, he said, but would necessitate more resources for the Court of Appeals. Those cases produced 21 percent of the Supreme Court's opinions last year, he noted. Such a change would give the justices more time to focus on certiorari cases, he said, predicting the court's rate of granting certiorari petitions might increase from about 8 to 9 percent to about 12 to 13 percent.

Panelist Jeffrey Swart, an Alston & Bird partner who, like Blackwell and Dillard, has clerked for a federal court judge, said the Court of Appeals' caseload means the court is "not really susceptible of being a collaborative court." Three minds are better than one, said Swart, but "since we're all friends here, what you really get in my impression is you get one mind that's fully engaged and you have two minds that act as sort of a sanity check." Swart suggested that in those cases in which the court decides to hear oral argument, assignment of the case to a particular judge could be delayed until after argument so that all three judges would be fully engaged at argument.

Dillard said he didn't agree that the "full weight of the opinion" falls on only one judge, although he acknowledged the judge who authors a panel opinion may spend more time working on the case than the other judges on a panel. "We do have informal conferencing," he said. "Some of it's memo-driven. But there is conferencing and discussions that are going on between judges, between staff."

He added that all of the Court of Appeals' practices have to be viewed through the lens of the constitutional rule that mandates the state's appellate courts resolve cases within two of the court's three annual terms.

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