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A Wrinkle in Litigation Planning: 2016 “Appellate Jurisdiction” Bill Could Affect Appellate Strategy

By Andrew MurdisonAndrew_A_Murdison

From the outset of any lawsuit, a sophisticated litigation strategy should include positioning the case for appeal, so that parties may be maximally protected from errors in the trial court.

The eventual appellate strategy may depend upon a variety of factors — the facts of the case, the state of the law (e.g., whether it is well-developed or uncertain territory), opposing parties and counsel, and so on. But before engaging in detailed strategizing, parties and their lawyers must ask a fundamental question: who (that is, what court) will hear our appeal?

A 2016 Georgia Bill, HB 927, tracks the report of a governor-appointed review commission (the “Commission”) and might soon change the answer in many cases.

The division of appellate labor in Georgia has been a work in progress from the beginning, and continues to develop as this State’s needs shift. In 1845, the Georgia Supreme Court was created by the legislature to correct “errors in judgments rendered in the superior courts of this state.” Cent. Of Ga. Ry. Co. v. Yesbik, 91 S.E. 873 (Ga. 1917). Over the ensuing decades, the justices of the Supreme Court (three at first, then six in 1895) became increasingly overworked. In 1906, the legislature created the Court of Appeals “as a court of final jurisdiction” in certain types of cases, while the Supreme Court retained jurisdiction over other cases.

As developed through the Georgia Constitution of 1983, appellate cases and the judicial labor associated with them have historically been distributed as follows:
1. Supreme Court
a. Cases involving title to land, equity, wills, habeas corpus, extraordinary remedies, divorce and alimony, and murder cases;
b. Cases taken voluntarily under writs of certiorari, cases in which the Court of Appeals is equally divided, and cases certified to it by a federal court; and
c. Cases involving a treaty, the construction of the State or Federal Constitutions, or an election contest.
2. Court of Appeals – essentially and with some exceptions, all other cases.
Accordingly, both courts often – and by design – function as courts of both first and last resort.

Even though they often perform a similar judicial function albeit in different types of cases, judicial resources are not equally spread between the two courts. The Court of Appeals now has 15 judges (as of January 2016, up from the 12 in place since 1999), while the Supreme Court has just 7. Making the comparison more stark, the Court of Appeals most often decides cases in panels of 3, whereas each of the seven Supreme Court justices hears every case. This is to say nothing of the administrative responsibilities that belong to the Supreme Court (regulation of lawyers, for example), over and above the disposition of appellate cases.

Enter HB 927, which would make the following notable changes:
1. A new statute, O.C.G.A. § 15-3-3.1, would be created, giving original appellate jurisdiction to the Court of Appeals in most of the cases listed in 1.a, above (title to land, equity, wills, extraordinary remedies, divorce and alimony), but not murder or death penalty cases; and
2. O.C.G.A. § 15-2-10 would be revised to create two additional Supreme Court justiceships, bringing the total to nine.

If HB 927 is passed, how will these changes affect case positioning and strategy? Probably in ways too numerous to describe or predict, but here are two suggestions. First, the Court of Appeals will need to adapt to the new areas of law in which it has not previously had to render decisions. While surely within the vast capabilities of the excellent jurists that make up the Court, this acclimation may yet take some time and yield inconsistent or legally incorrect results. Accordingly, counsel at the trial level may wish to either avoid unsettled issues in those realms, or attack such issues full-force – uncertainty may breed either opportunism or conservatism, depending on whether one prefers to change or maintain the status quo.

Second, another type of uncertainty may be introduced to the general jurisdiction cases. Where they were once decided by a majority of seven justices, these cases may soon be settled by the votes of just two out of three panel judges. Such cases may, therefore, turn on the happenstance of which three judges are assigned and how they view the facts or the law. Again, inconsistent results may occur.

HB 927 has passed the House and been recommitted to the judiciary committee by the Senate. As the shape of Georgia’s judiciary continues to develop, the attorneys at Fulcher Hagler LLP will remain keen, ready to help our clients position their cases for the best possible appellate outcomes.

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