CHAPTER 4

AN EVOLVING AND DIVERSE COURT

1980-2006

BY ROBERT G. TANNER

ATTORNEY, WEINBERG, WHEELER, HUDGINS, GUNN & DIAL, LLC

The final quarter of its first century was for the Court of Appeals of Georgia a time of marked growth and change. This was perhaps inevitable because between 1980 and 2005, Georgia and its people also experienced considerable growth and change. The state population rose from approximately 5.5 million in 1980 to almost 9 million in 2006, making Georgia the tenth most populous State of the Union. 1 The number of attorneys licensed to practice in the State rose dramatically during this period from just over 13,000 in 1980 to more than 36,000 in 2006. 2 The State's economy accelerated and became broadly diversified. Georgia businesses expanded beyond American shores, and the world came to Georgia for the 1996 Olympics. Change was a hallmark of Georgia in these years.

A New Leadership Model

The change in the role of the Chief Judge is an example of the evolution of the Court in this era. The Chief Judge selects presiding judges and assigns the nine judges to the three-judge panels into which the Court is organized and in which its basic work is done. The Chief Judge is the spokesperson for the Court and is given, by custom, general administrative supervision of the Court. Judge George H. Carley (now Justice Carley) complimented Chief Judge John W. Sognier for his administrative skills in the tribute made at his retirement (Photo Carley & Sognier), noting that he "acts expeditiously, but fairly. And that is quite an accomplishment for a leader when his followers consist of eight other prima donnas." 3

Traditionally, the Court's judges elected the Chief Judge, who continued in that role at the pleasure of the other judges. Therefore, there were long periods without a change; only seven Judges held the office of Chief Judge during the Court's first seventy years. Some Chief Judges, such as John Sammons Bell, served the average length of time, a decade, while others served only a few years. (Photos Bell) [Coordinate with earlier Chapters]

By the late 1970's, however, a new approach resulted in the position being rotated, typically for a term of two years based upon the tenure of the judges with the Court. Braswell D. Deen, Jr., held the post from 1979 through 1980, (Photo Deen) and thereafter, the post was filled by a new individual every two years with the exception of the tenure of Judges Arnold Shulman and William Leroy McMurray, Jr. as Chief Judge. Both these men served only one year as Chief Judge. Judge McMurray knew that if he served for two years, Judge Shulman would be unable to serve as Chief Judge since he would reach the mandatory retirement age. As a courtesy to Judge Shulman, Judge McMurray served only one year as Chief Judge so that Judge Shulman would have a chance to be the Chief Judge before retirement. 4 (Photo Judge McMurray and Shulman)

Between 1980 and 2005, the Court was served by twice the number of Chief Judges it had from 1907 to 1979. In the centennial year, the Court was headed by Chief Judge John H. Ruffin, Jr., (photo) who assumed his duties on January 1, 2005. In addition to his many other duties, Judge John Ruffin was a leading force in the organization of the events observing the Centennial.

The background of those who served as Chief Judge was changing as well. Of the first seven Chief Judges, all save the last, John Sammons Bell, were born in the Nineteenth Century. Judge Bell was born in 1914. Each of the first seven Chief Judges were educated in Georgia undergraduate institutions and had their legal training in Georgia. In the last quarter century of the Court's history, several Chief Judges of the Court obtained their law degree at schools outside the state, including Judge John W. Sognier (Catholic University), Judge Harold R. Banke (George Washington), Judge Dorothy Toth Beasley (American University), Judge Edward H. Johnson (Vanderbilt University) and Judge John H. Ruffin, Jr. (Howard University). Six judges currently on the Court have also obtained a L.L.M. in Judicial Process from the University of Virginia School of Law. 5

Changes in the Legal Staff

Diversity in the educational institutions the Court of Appeals staff attorneys have attended has also become the norm. By specific statutory authority, O.C.G.A. § 15-3-
9(a), Court of Appeals judges are authorized to appoint "law assistants." These "clerkships" traditionally had been positions filled by recent law school graduates. These young lawyers were hired by a particular judge and worked primarily as research and writing assistants for that specific judge. The tenure of these appointments was generally one or two years, with the result that by the time the "clerk" had become very familiar with the Court's work, he or she would often move to other employment.

This early model has been transformed. Because of the caseload of the court, each judge now has three attorney assistants, whose title has changed to staff attorney. Many of the staff attorneys are not recent law school graduates but, rather, experienced attorneys. The educational background of this group has included notable law schools outside Georgia. Moreover, the Court as a whole now employs a central core of staff attorneys. These attorneys perform valuable work checking newly filed cases for compliance with applicable rules and procedures, a jurisdictional review and also draft memoranda for applications filed with the Court. (Photo of Central Staff attorney at work)

The National Center for State Courts, a nonprofit organization seeking to improve the justice system by regularly gathering data on state courts, has observed: "No modern appellate court exists without the input and advice from some combination of clerks of court, law clerks or central staff attorneys." 6 The Court of Appeals of Georgia was a part of this trend, and by 2006 the Court has in excess of 50 experienced lawyers working as staff attorneys.

Diversity and Women

In 1980, the Court of Appeals consisted of nine judges, all Caucasian males, but the years that followed saw the bench become more diverse. Dorothy Toth Beasley became the first female member of the Court when she was appointed by Governor Joe Frank Harris in 1984. Judge Dorothy Beasley had previously been employed as a Assistant Attorney General and served as a State Court Judge of Fulton County. One interesting fact about her is that she argued before the U.S. Supreme Court in the companion Georgia case, Doe v. Bolton, 410 U.S. 179 (1973), to Roe v. Wade, 410 U.S. 113 (1973), which set abortion rights parameters.7(Photo of Beasley) Judge Beasley was also the first female appellate judge in Georgia history. Since Judge Beasley served on the Court, there have been three other women Court of Appeals Judges, Judge Anne Elizabeth Barnes, Judge M. Yvette Miller, and Debra Bernes who all are still serving. (Photo of Barnes, Miller and Bernes)
An obvious sign of the Court's recognition of women as state citizens, one literally set in stone, is the motto inscribed in marble on the upper front center of the courtroom of the Court of Appeals of Georgia. The credo created by Chief Judge Jule W. Felton for the new Judicial Building in 1956, which is centered directly above the Court bench, originally read: "Upon the integrity, wisdom and independence of the judiciary depend the sacred rights of free men." Many generations of Georgia lawyers have faced those words as they argued their cases. In 1992 at the suggestion of Judge Beasley and with the permission of Jule Felton, Jr.,the motto was expanded by inserting the words "and women" in the end of the inscription. In an interview in 2006, Judge Beasley stated that after the change was approved by the Court and someone was hired to change the motto, "I was scared to death because its one big piece of marble and I knew that if it got cracked, there would go my whole salary for about five years.... But it didn't, of course, and so there it was." 8 [Coordinate with Chapter 3

Diversity and African Americans

The Court's first African-American judge, Robert Benham, a practicing attorney from Cartersville was also appointed by Governor Harris and assumed his duties in 1989. He was the first African American to serve on an appellate court in Georgia and later served as Chief Justice of the Supreme Court of Georgia. (Photo of Benham) Judge Benham would be the first Court of Appeals Judge to hire an African-American staff attorney, Denise Majette,9 who later served as a State Court Judge in DeKalb County and was elected to the U.S. Congress. Other African-American Judges have since served the Court, Judge Clarence Cooper and three current judges: Chief Judge John H. Ruffin, Jr., Judge M. Yvette Miller, and Judge Herbert E. Phipps. (Photos of all four)

It is worth noting that these changes in the Court did not result from any one policy or directive. No one person or commission determined that any given percent of staff attorneys or judges should have an educational degree from out-of-state institutions or should reflect a specific sex, race or ethnicity. Instead, the diversification of the Court of Appeals of Georgia came about as a reflection of and, indeed, as part of changes in the State Bar of Georgia, as increasingly graduating law students had more varied backgrounds and experiences. The Court changed as Georgia changed, and the result was that as it entered its second century the Court could draw upon a broad spectrum of legal talent nurtured in many legal venues and reflecting different backgrounds and life experiences.

Notable Service

While all members of the Court of Appeals are noteworthy, several individuals serving on the Court after 1980 had special distinctions. In 1984 Judge J. Kelly Quillian retired after 18 years of service. In this service he had eclipsed the record of his father, who was a member of the Court from 1953 to 1960. This is the only father and son team to have both served on the Court. (Coordinate with Chapter 3, Photo of the two Quillians) Two judges, were appointed to the Supreme Court of Georgia: George H. Carley in 1979 and Robert Benham in 1989. Judge Clarence Cooper was appointed by President Clinton to the bench of the United States District Court for the Northern District of Georgia in 1994, where he joined former Court of Appeals of Georgia Judge Robert H. Hall. Judge Gary B. Andrews, (Photo Andrews) who took office with the Court on January 1, 1991, brought the unique perspective of having been a member (1987 to 1989) and Chairman of the Georgia Public Service Commission. Judge Edward H. Johnson, Chief Judge from 1977-1980, served in the state legislature. (Photo Johnson)

There were several judges whose tenure on the Court came close to the longevity record of Judge Jule Felton, who served for 32 years. They were: Judge Braswell T. Deen, Jr. (who retired from the Court in 1990 with the second lengthiest service of 25 years) and Judge William L. McMurray, Jr. (who retired with 24 years of service in 2000). (Photo of Deen and McMurray) At that time, it was noted that Judge McMurray was the principal author of approximately 4,238 opinions and had authored another 350 opinions including dissents and separate concurrences. In his 24 years on the bench, Judge McMurray either had written or participated in approximately 13,500 opinions, establishing a record that may never be surpassed.10

Humor in the Halls of Justice

Although the Court of Appeals is foremost a place for legal scholarship, it is, as well, an institution in which humor can be found. Judge Marion T. Pope, Jr., who retired in 2002, is a well-known raconteur. (Photo of Pope) Another jurist with a pronounced sense of humor was the Honorable George Carley, who, at a 1992 retirement tribute to Chief Judge John Sognier, recalled a Grand Canyon vacation taken by Judge Sognier, himself, and their wives. The four vacationers decided to ride down to the canyon floor and were soon on their way atop four mules who were reported to know the narrow trail extremely well. As the journey progressed, the mules came closer and closer to the edge of the trail. Judge Carley recalled how Judge Sognier, who was riding behind him on a mule named Jolene, became more and more upset with the animal as it seemed to stray closer to the precipice. Judge Sognier finally was heard to blurt out: "Look here, mule, I am Chief Judge of the Court of Appeals of Georgia, and I order you not to walk so close to the edge of the trail." Jolene, unimpressed, looked around, and Judge Carley recalled: "…promptly proceeded to do what mules are want to do in the middle of the trail. I guess that mule knew that [Judge Sognier] was out of his jurisdiction." 11

In terms of judicial humor, it would be difficult to match the story offered by Judge Deen at a retirement tribute to him as he left the Court in 1990. Judge Deen, after listening to many praises of his long service, had a chance to respond, which he did with his typical wit. He began by commenting that he could now understand how the famous character Quasimodo, hero of Victor Hugo's novel, felt after he retired following 25 years of duty as a bell ringer at the great cathedral of Notre Dame in Paris. Judge Deen explained:

"Upon his retirement, the church committee considered new applicants for this position. Forty to fifty persons were interviewed. One man had arthritis in both arms and could not use them. The committee inquired, 'Are you sure you can ring the bell?' He said, 'Oh, yes, I can use my head.' He took a flying leap and hit the bell, and it rang – so he was hired. Every day the bell rang, but one day he missed the bell, went out through the third-story window, and landed on the stone courtyard. The sheriff walked up and asked, 'Who is that man?' A bystander said, 'I don't know his name but his face sure does ring a bell.' The church had to interview more applicants. Another man with arthritis in each arm showed up to apply. The priest said, 'You look awfully familiar.' The man said, 'My twin brother used to be your bell-ringer. I can use my head and also ring the bell.' The priest agreed to hire him. He rang the bell every day until he missed the bell, went through the third-story window, and landed on the stone courtyard. The sheriff asked the priest, 'Who is this man?' The priest replied, 'I don't know his name but he's a dead-
ringer for his brother!" 12

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A Varied Caseload

The ultimate purpose of the Court of Appeals of Georgia, as it is of any court, is the resolution of disputes among parties via the interpretation of law. The Court of Appeals decided cases in large numbers in this period. Georgia's economic and population surge brought with it a growing amount of civil litigation; at the same time, district attorneys vigorously prosecuted criminal activity around the State. Also, in the new 1983 state Constitution the jurisdictional split between the Court of Appeals and Supreme Court was changed to give the Court of Appeals jurisdiction of cases involving state revenue. 13 The result of these changes was a steady increase in the number of appeals coming to the Court from across the state.

This trend had been developing for many years. As early as 1984, at ceremonies for retiring Judge J. Kelly Quillian, a Court of Appeals resolution of appreciation of Judge Quillian noted that during his 18 years on the Court "Judge Quillian has seen each judge's caseload increase from fewer than 100 cases per year to more than 300 cases per year." 14

The heavy caseload persisted into the Twenty-First Century. Among other case types, there was an increase in malpractice, illegal drug activity, and child related appeals such as molestation, deprivation and terminations of parental rights.15 Examination of Court filings from the years 2000 to 2004 reflect that in each year total filings exceeded 3,000. [Graphs illustrating the workload of the Court].

The heavy caseload of the Court of Appeals of Georgia was the result not only of a growing corps of lawyers representing an ever increasing population of Georgians, but the last decades of the Twentieth Century saw an upsurge in the scope and complexity of Georgia laws, many of which would eventually come before the Court of Appeals in the form of an appeal from a decision of a lower court ruling which had interpreted the new laws.	Some laws required minimal interpretation, whereas others, even ones which might seem straightforward, required seemingly endless judicial review. For example, in 1987, the General Assembly enacted O.C.G.A. § 9-11-9.1 to establish the requirement that when a plaintiff files a suit alleging "professional malpractice" the suit must include an affidavit of an expert witness which explains at least one negligent act or omission claimed to exist on the part of the defendant. A saving provision allowed for an extension or grace period of 45 days to file the affidavit if the lawsuit was filed within ten days of the running of the statute of limitations.

This seemingly straightforward requirement proved more difficult in day to day application than the drafters of the law probably anticipated, and there followed a flood of appellate activity in which every conceivable aspect of the statute was brought to the attention of the Court of Appeals. Litigants tested the discretion of the trial court in granting extensions. Whether the affiant had sufficient expertise to testify against the defendant professional was repeatedly examined. Other questions reviewed were: Was an orthopedic surgeon able under the statute to testify against a physical therapist? Could a nurse provide an affidavit against a physician, or a physician against a nurse? Were affidavits invalid where the oath was administered by a notary over the telephone? Was the failure to attach an affidavit to the original complaint an amendable defect, and, if so, under what circumstances? These and myriad other questions from one relatively concise statute reflected the array of appellate issues which often arose from new laws.

Other cases which came to the Court in this period also illustrate the growth in both the economy and population of the state. For example, in the 1980s the construction of the Metropolitan Rapid Transit system in Atlanta spawned a number of appeals from condemnation actions for the land on which the system was built. (Collins v. MARTA, 163 Ga. App. 168 (1982) and Fountain v. DeKalb Co., 154 Ga. App. 302 (1980). The expansion of the Atlanta airport in 2003 also generated litigation which reached the Court of Appeals, City of Atlanta v. Yusen Air & Sea Service Holdings, Inc., 263 Ga. App. 82 (2003) and Whigham v. City of Atlanta, 262 Ga. App. 742 (2003). Even a few well known entertainers, Kenny Rogers, of country music fame (Rogers v. Butler and Threatt et al. v. Rogers, 269 Ga. App. 402 (2004), and Terry Bollea, known as Hulk Hogan among followers of televised wrestling, (Bollea v. World Championship Wrestling, Inc., 271 Ga. App. 555 (2005) came to the Court for resolution of contract matters.

In several cases in this period, nationally known corporations were involved in large verdict cases: Time Warner Entertainment Co., L. P. v. Six Flags Over Georgia, LLC (254 Ga. App. 598, 2002) and General Motors Corp. v. Moseley (213 Ga. App. 875, 1994). The Time Warner case involved an award of $197 million in compensatory damages and $257 million in punitive damages arising from the partnership relationship of Time Warner Entertainment Co., a communications conglomerate, and Six Flags over Georgia, a theme park. The appeal was affirmed at 245 Ga. App. 334 (2004), but was remanded to the Court of Appeals for review by the U. S. Supreme Court for consideration in light of a new decision from the Supreme Court in Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 801 (2001). The Court of Appeals was directed to determine Leatherman's application to allegations of excessive punitive damages. The Court again affirmed the award stating that under the state standard the award did not constitute an abuse of discretion. Furthermore, although reasoning that the appellants had abandoned any claim under the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution (the claim in Leatherman), the Court held that the award was not excessive even under the guideposts adopted by the U.S. Supreme Court.

Moseley involved a collision of a GMC pickup truck in which the gas fuel tank ruptured. The jury awarded the parents of the deceased driver in the wrongful death case over $4 million dollars and $101 million dollars in punitive damages. In the first appeal from the case, the Georgia Supreme Court had upheld the Constitutionality of O.C.G.A. §51-12-5.1 which required payment of a portion of the punitive damages to the State of Georgia. The Court of Appeals case arose from the trial court's denial of motions for a new trial.

In 1996 the summer Olympics brought world attention to Georgia, but unfortunately, the event was marred by a bombing at the Centennial Olympic Park. This tragic incident resulted in several suits which eventually brought appeals to the Court. Appeals from the defamation action of Richard Jewell, a security guard at the event who was once considered a suspect but later cleared, and an action to determine the liability of the Atlanta Committee for the Olympic Games were both docketed in the Court of Appeals. Atlanta Journal-Constitution v. Jewell and Jewell v. Cox Enterprises, 251 Ga. App. 808 (2001) and Anderson v. the Atlanta Committee for the Olympic Games, Inc., 261 Ga. App. 895 (2003) .

In the field of criminal law, the legislature increased mandatory sentences in this period, so the Court dealt with appeals arising from the application of those revised statutes, for example Rucks v. State, 201 Ga. App. 142, (1991), which concerned a mandatory life imprisonment sentence for a second sale of certain controlled substances, (in this instance, cocaine) and Genarlow Wilson v. State, 279 Ga. App. 459, (2006), which involved application of a mandatory 10 year sentence without parol to a 17 year-
old boy convicted of aggravated child molestation of a 15 year-old girl.

Examples of other important criminal cases are: Mincey v. State ,180 Ga. App. 263 (1986), which applied the decision of the U.S. Supreme Court in Batson v. Kentucky, 476 U.S.79 (1986), protecting defendants from bias in the use of peremptory challenges and Georgia v. Randolph, (547 U.S. 103, 2006) in which the U.S. Supreme Court upheld the decision of the Court of Appeals in State v. Randolph, (264 Ga. App. 396, 2003). This case addressed whether police officers have the authority to conduct a warrantless search of a marital residence when, after one spouse refuses, the other spouse grants consent to search the home.

Prelude to Expansion

These varied appeals just give a taste of the many types of issues arising from the increasingly diverse population and the economic development of the state. Given the foregoing, it was to be expected that, by the 1990's, the Georgia Court of Appeals was among the busiest appellate bodies in the nation. Had the Court continued into the Twenty-First Century with only the nine members, each of the nine would have needed to write an opinion approximately every day and a half. Of course such schedule does not contemplate time for oral arguments, motions for reconsideration, or general administrative duties.

As the end of the Twentieth Century approached, it was obvious to many people that the workload of the Court must be lightened, yet the solution was not simple. In 1981, the Court obtained an appropriation to fund a second staff attorney for each judge.16 In 1987, the General Assembly passed a law authorizing appointment of Senior Appellate Judges. 17 Any judge of the Court of Appeals who retired could, at that individual's option, be appointed by the Governor to the newly created post of "Senior Appellate Court Judge." The Governor's appointment would run for life and would remove eligibility of the appointed individual to hold any other non-judicial public office of Georgia or practice law. The authority of the individual so appointed would be to exercise judicial power "upon the request and the consent of a majority of the judges of the requesting court." The law, which allowed utilizing talents of retired Court of Appeals judges on at least an emergency basis, was used from time to time, but did not provide the needed workload relief.

Another idea to reduce the Court's workload did not prove effective either. In 1988, the Court of Appeals was authorized by the General Assembly to establish a voluntary pre-appeal settlement conference procedure in civil cases. 18 The Court could employ senior appellate court judges and senior superior court judges to hold settlement conferences. The rules adopted by the Court declared the conference process was "intended to afford a realistic consideration of the possibility of settlement of the case or alternatively the simplification of issues on appeal." Basically, the settlement conference was a form of mediation. The hope was that prior to a lengthy and expensive appeal, parties in some cases might find that a candid discussion guided by an experienced judge could avoid the appeal, thus aiding "the speedy and fast disposition of cases." Unfortunately, the procedure was not widely appreciated by the Bar, and very few litigants chose to avail themselves of pre-appeal settlement conferences. In the meantime, the Court's workload continued to escalate and the experiment ended.

Expansion of the Bench

In the 1990s the Court made two changes to the Rules concerning oral argument in order to conserve the judges' time. In 1980, all cases were permitted to be argued, and arguments were 20 minutes per side. Two problems with this procedure grew as the Court's schedule became busier. The first problem was unpredictability. On oral argument day, each case would be called one by one, yet the Court would not know if anyone was going to show up to argue. 19 Secondly, oral arguments on so many cases resulted in judges sitting on the bench for hours and hours. As Judge Pope noted about a day of oral arguments in the 1980s, "Then I would sit up here in this courtroom from 10:00 a.m. till 7:00, probably as late as 8:00 p.m. hearing oral argument. Well about 3:00...you're dead in two places, your head and where you sit."20 A change to the rules in 1993 reduced oral argument to 15 minutes per side, and in 1995, oral argument was limited to cases in which a party requested argument and it was granted by the Court. (Photo crowded courtroom in 1980s? Copy of a 1980s calendar?)

In the mid-1990s, Chief Judge Beasley and the Court began to seek support for increasing the number of judges on the Court. 21 In 1996, Governor Zell Miller proposed a solution with a legislative package that would increase the number of judges by a total of four, thus making a seated total of thirteen. There would be four divisions, with the Chief Judge functioning as administrative head of Court and assisting the divisions as appropriate. This sweeping reorganization was not enacted, but in 1996 the legislature did authorize a tenth judge. On July 16, 1996, Judge Frank M. Eldridge formerly of the Superior Court of Fulton County was sworn in as the tenth judge of the Court of Appeals of Georgia. He was the 63rd judge in the Court's history. (Photo Eldridge) As well as serving on the Court of Appeals, Judge Eldridge authored numerous legal treatises and journal articles and served as an adjunct professor at the Emory Law School and the National Judicial College. 22

The same legislation which brought Judge Frank Eldridge to the Court also changed the process by which cases were decided when a dissent was written. 23 Prior to this time, a dissent in a case heard by one panel of three judges would result in the case being referred to the entire court. Following 1996, cases triggering a dissent were referred to a panel of seven judges, including the division to which the matter was initially heard, the next division in succession and a seventh judge. The 1996 law also provided that a decision of a three-judge division overruling a prior decision must be referred to seven judges for decision. Finally, the General Assembly gave the Court authority to determine, upon a unanimous basis, when its business might require temporary assistance. Should the Court unanimously make such determination, the Court was authorized to request assistance of the senior appellate judges.

As welcome as were these legislative efforts, they did not solve the problem of the prodigious workload faced by the Court. Indeed, having a tenth judge actually created a problem which impacted adversely on administration. Court panels are arranged in multiples of three judges, leaving the tenth judge without a permanent division. The Chief Judge was taken off a permanent division, but assigned to every tenth case, with the result that this Judge would often hear a number of cases during oral argument with one division, then have to leave the bench when an argument was scheduled for an appeal for which that judge was not a member of the assigned trio. The end result was awkward. As a result, the Chief Judge was called to hear oral argument on more days of the month than would have resulted under the prior rotation.

Legislative efforts to bring more judges to the bench of the Court of Appeals were unsuccessful until 1999, at which time Senate Bill 99 passed and was signed by Governor Roy Barnes. The new act increased the number of judges from 10 to 12, organizing the members into four divisions of three judges each. The retirement of Judge Dorothy Beasley, plus the newly created positions, created three vacancies at one time. Rarely in Georgia history has a Governor had an opportunity to appoint at one time as many appellate judges as did Governor Barnes in 1999 when he appointed M. Yvette Miller, a former State Court Judge of Fulton County, John J. Ellington, former State Court Judge of Treutlen County, and Herbert E. Phipps, former Superior Court Judge in the Dougherty Judicial Circuit, as the judges to fill these posts. (Photo Miller, Ellington, Phipps) Twelve judges remain the authorized strength of the Court to the present.[ Maybe add to this paragraph either a copy of the act or maybe Governor Barnes photo swearing in one of these judges?]

Despite these efforts, the caseload of the Court of Appeals has remained a heavy one as the Court enters its second century. As recently as 2002, at a retirement tribute for Judge Marion T. Pope, the retiring Judge reflected on 21 years of service. He noted that since 1981 he had seen the Court's caseload almost double. Even with three new judges, the addition of one staff attorney per judge (bringing the total to three per judge) and even with the addition of central staff attorneys, Judge Pope predicted "more changes for the Court in the future as it works to manage the ever increasing caseload." 24

Economy of Operation

The Court of Appeals has managed its considerable output of cases in an economical fashion. The Court of Appeals consumes considerably less than one tenth of 1% of the State budget. That the Court of Appeals runs economically reflects careful attention to administrative details by its members and support staff, particularly, the Clerks of the Court. The current Clerk of the Court of Appeals, William L. Martin, III (1994 to date), (Photo Martin at work) as well as his predecessors Victoria McLaughlin (1987-1993), and Alton Hawk (1981-1986), (Photos of McLaughlin and Hawk] were all diligent in their duty of helping to ensure that the Court ran in as economical a fashion as possible. But, efforts to contain costs also had a lighter side from time to time. The story is told of Judge Harold R. Banke, who retired from the Court in 1991. He once returned from the post office carrying a bag packed with stamps. He announced to several judges that he had bought $100 worth of stamps because the cost of postage was going to rise two cents the next day. It is recalled humorously that he blushed and hurriedly left the room when someone reminded him that the Court would still have to pay the extra two cents the next day to use the mails. 25

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[Box - Title -Workflow of a Direct Appeal 1980- 2006 by Robert G. Tanner, Partner, Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC]

When a party or an attorney decided to appeal, he or she filed a Notice of Appeal with Clerk of the trial court which had decided the matter. The trial court clerk then prepared a record of the pertinent documents from the case file for transmittal to the Court of Appeals. Various pleadings, depositions, transcripts and other documents designated by the parties would be assembled into the "record on appeal."

In the Court of Appeals, the documents are delivered to the offices of the Clerk of the Court of Appeals, where files are created; the Notice of Appeal is entered into the Court's docket; and the case is assigned to a panel of judges. As soon as the appeal is docketed, the Clerk's office would mail written notice to the parties that the matter has been docketed and that briefs in support of their positions would be due by certain dates.

Attorneys for the parties in the appeal would then begin to marshal cases and arguments in support of their respective positions. Books flew off shelves and piled on library tables as lawyers compared and contrasted prior cases with their own case's legal issues. Photocopy machines hummed as reproductions of significant decisions were made for future reference and incorporation into briefs. Eager hands clutched dictating machines, into which flowed initial thoughts. Typists positioned earpieces and began to type out the dictation tapes on which legal arguments had been recorded. Drafts of briefs spilled out across the pages, to be reworked by attorneys, retyped, and reworked again. In the end, a final document was prepared and multiple copies of briefs were made for delivery to the Court of Appeals.

Not infrequently, the brief was finished on the day it was due, and worried glances were directed at the clock, it being necessary to have a brief delivered before close of business on the due date. More than a few times a last minute race occurred, complicated by the fact that parking was often difficult near the Court of Appeals. Rather than have a single individual drive to downtown Atlanta, park a vehicle, and then dash to deliver a brief to the Court of Appeals, lawyers working on short deadlines sometimes raced the final product to the Court by a team. One individual would drive and pause briefly at the front entrance of the Court while another alighted with the precious cargo and sprinted in to, hopefully, achieve a timely filing. Such efforts were known in this writer's law firm as "drive by filings."

Newly arrived briefs were dutifully stamped by Court personnel. Records were made in the Court's docket as to what had been received, and the process of distribution began. Stacks of briefs were distributed to judges of the division to which the case had been assigned and to their clerks. A new wave of library consultation then occurred. Judges and their clerks pulled down volume after volume of law books to ponder citations offered in the briefs. Legal tomes piled up on library tables as decision-makers compared a case appearing in one bound volume with a case in another. Photocopying machines again hummed. Once the division had agreed upon the law and the ruling of the case, the judge assigned to the matter and his or her clerk would begin to craft a written opinion. Dictating machines again were switched to "on," and soon another cadre of typists would position their earpieces to type the emerging decision. The initial draft, once presented to the writing judge, would be corrected, retyped, and re-corrected until the finished product satisfied the division. During this process, stacks of papers surged from one desk to another. (One is reminded of the epic fictional case of Jarndyce v. Jarndyce, as related in the Charles Dickens' novel Bleak House; Dickens described how, whenever the case was brought to the court of the Lord Chancellor, there was a "bringing in of great heaps, and piles and bags and bags full of paper." 26

Once a final draft of an opinion had been approved by the judges, copies were mailed to the attorneys for the parties, the trial court and the office of the official court reporter.

The same official served as reporter both for the Supreme Court and Court of Appeals. The reporter's duties required him or her to attend in person, or by assistant, all sessions of the Supreme Court and Court of Appeals, and to publish the decisions of those courts. The court reporter was responsible for overseeing a contract with a publisher and for ensuring that the publisher ultimately produced and distributed an accurate copy of the Court's opinions. The reporters diligently proofread copies of all decisions going to the publisher to ensure that the draft was an accurate version of what the Court had ruled. During the decades in question, the equipment used to do this work also changed from word processors to personal computers and opinions could be electronically transmitted to the publisher rather than mailed or picked up. This work was ably supervised and carried out first by Scott Henwood, and more recently by Jean Ruskell and their respective staffs. (Photo of Henwood and Ruskell) The publisher generally distributed weekly a booklet, containing the decisions from 30 to 50 cases. These "advance sheets" typically arrived on the desks of lawyers two to three months following the actual decision.

Yet, even with the opinions of the Court of Appeals safely in the hands of judges and lawyers across the state, the process was not at an end. Small hillocks of paper still required attention. The copy of the record prepared by the initial trial court, as well as the briefs and motions of both sides in each case, and the orders of the Court had been accumulating. When the time for any motions for reconsideration or appeal to the Supreme Court had passed, these often voluminous piles of papers still had to be housed. For many years, they were then sent to the State Archives, a division of the Office of the Secretary of State. There they were stored for future reference in the event legal scholars might want to know the precise arguments offered to the Court in any given case.

As the years went by, these records began to present storage problems, and by the 1990's, the State Archives had determined to no longer accept case files and records from the Court of Appeals for storage. Accordingly, the Court began to microfilm the pertinent pleadings from the appellate process. These in turn were stored. The microfilm, of course, took up less space than the original documents, but as time progressed, even the storage of microfilm records of paperwork in thousands of cases began to swell.

The process by which an opinion of the Court of Appeals came into being may strike some as antiquated, if not Dickension, yet this was in fact the routine followed by virtually all appellate courts in the Twentieth Century. Now these old ways have begun to be swept away by the revolution in information processing. New technologies have provided a means to simplify greatly the process of legal research, writing and editing, and the Court of Appeals of Georgia was among the first in the Nation to exploit this new technology to facilitate its workflow. [End of Box]

New Technology for the Court

In the early 1980s, new technology was applied to legal research and writing. One of the early proponents was Justice Charles Weltner of the Georgia Supreme Court; Justice Weltner was instrumental in leading the Supreme Court and the Court of Appeals to purchase jointly a mainframe computer in 1982. Its purpose was to automate docketing, to streamline the process of keeping track of appeals and reduce hand recording of case data. Mr. Bud Tirey, formerly of the Georgia Department of Administrative Services, became the Chief Technology Assistant with the Court to provide the Court in-house information technology expertise. The Court is now served by an Information Technology staff of three: John Ruggeri, Bob McAteer, and Brett Muller. (Photo IT staff at work including Bud?)

By the late 1980s, personal computers began to replace the large mainframe computers. The main frame unit was abandoned by the Court in favor of a server-based platform permitting a local area network. The system was also changed to rely on fiber optic cables, which gave it greater flexibility and adaptability. As a result, the full Court, the judges and all court employees, had access to an automated docketing system. By the year 2000, all written opinions of the Court of Appeals and the Supreme Court were in a searchable database. Additionally, the Court negotiated agreements with LEXIS and Westlaw for on-line legal research. The connections were initially achieved via telephone lines and were later upgraded to high speed, internet access. Legal research and word processing was then available 24 hours a day. The end result was to improve the way and speed that cases are docketed and researched and opinions drafted. [Box with quote from Robert Benham interview date____here. "I engineered the [personal] computers for the Court, but that shows something else in that I was probably the most least likely candidate who wanted to have computers. I made a statement early on that I was a yellow-pad lawyer and I would be a yellow-pad judge, and it would be a cold day in another region of the country before I agreed to computers. Now that sounds nonsensical now, but at the time few lawyers, if any, had computers. Now I was a lawyer who had a computer when I practiced, I had a computer-typewriter, but the driving force for me was that I had small children, and my children had computers and until then [I] had thought of computers as just toys. But I saw what they could do, how they could increase the amount of work and the speed with which work could be done."]

The Court modernized its courtroom in 2005 to include a system so that the attorneys presenting oral arguments could use documents or photographs from a document camera platform, from their personal computer, or from an audio or video disk which displayed on computers at the judges' bench, the attorney tables, the clerk's station and on a screen for the audience. (Photo modern courtroom with screen, etc.)

As the Court of Appeals of Georgia enters its second century, the foundations already laid should allow for significant further improvements in the application of information technology to the judicial decision-making process. The Court is currently working on a system to accept documents electronically from attorneys' offices, to automatically update the Court docket, and to distribute documents in an electronic form to the appropriate judicial offices, which should result in substantial savings of time and resources for both the Court and the parties. "Drive by filings" are soon to be a thing of the past.

Community Service and Leadership

By introducing electronic processing to the appellate court work, the Court was, among other things, making itself more accessible to citizens of the State. In fact, judges of the Court between 1980 and 2006 took a number of innovative steps to accommodate Georgians. Not surprisingly, many judges were individually involved in various aspects of community service, and by the same token judges often provided leadership in efforts to improve the judicial system as a whole. For example, Judge A. Harris Adams served as a member of the Supreme Court of Georgia Chief Justice's Commission on Indigent Defense; he was also a member of the advisory board of the Georgia Indigent Counsel. Similarly, Judge Edward H. Johnson served as Chairman of the Board of Trustees of the Institute of Continuing Judicial Education, a position previously held by Judge John H. Ruffin, Jr. and A. W. Birdsong, Jr., and Judge Alan G. Blackburn served on the Chief Justice's Commission on Professionalism. Judge John Ruffin served as a Chairperson of the Chief Justice's Commission on Racial and Ethnic Bias. Judges J. D. Smith and Charles B. Mikell, Jr., who currently sit on the Court, both have been active in local community projects. Judge J.D. Smith, a former Superior Court Judge of the Northeastern Judicial Circuit, has been a director of the Gainesville Kiwanis Club and a director of the Lanier Education Foundation while Judge Charles Mikell, a former Superior Court Judge in the Eastern Judicial Circuit, has been president of the Neighbor to Neighbor Justice Center, and served on the boards of both the United Way and Boy Scouts in the Chatham County area. (Photos of these Judges)

Court Accessibility

The Court as an institution has sought to become more accessible to Georgians through the establishment of a website. This was developed on a cost-effective, in-house basis without the employment of paid outside consultants. The website, www.gaappeals.us, offers numerous features. A viewer can review the rules and calendar, perform a docket or case search of an individual matter, retrieve Court opinions, and learn other information concerning the function of the Court. There is even a specific link by which a viewer can e-mail a question to the Clerk of Court. (Snapshot of web home page.)

The Court also continued its service through hearing oral arguments in different areas of the State. In 1996, the General Assembly specifically legislated that the Court of Appeals could hear oral argument at locations other than at the seat of state government. 27 Rather than hearing all cases in the central Atlanta courtroom, divisions of the Court heard oral argument from time-to-time in law schools and other community forums around Georgia. The impact has been to increase the visibility of the work of the Court to citizens of Georgia. (Photo of oral argument at one of the law schools well attended.)

Not all cases brought to the Court are filed by attorneys. Indeed, a not inconsiderable number of matters are filed in the Court of Appeals without the benefit of counsel, and this fact provided an opportunity for the Court to be helpful in yet another way. In 2000, Mr. William L. Martin, III, the Clerk and Court Administrator of the Court, attended the National Conference of Appellate Court Clerks where he studied a number of written guides from other States designed to explain appellate practice to laypersons. As a result of little guidance, many Georgians filing or defending appeals, pro se, (parties without legal counsel) filed defective pleadings which consumed valuable judicial and administrative time. Mr. Martin addressed the problem through a informative pamphlet entitled "A Citizen's Guide to Filing Appeals in the Court of Appeals of Georgia." The original booklet of December 2000 provided an overview of the appeals process and its update is now available on the Court website. (Scan of cover of Pro Se Pamphlet)

Recent Election Contests

The year 2004 was significant in the history of the Court of Appeals of Georgia for yet another reason: a prolonged and very expensive election season. To be sure, there had been contested elections involving a seat on the Court of Appeals in the past. In 1992, Judge G. Alan Blackburn, then a practicing attorney, ran against incumbent Chief Judge John Sognier for the latter's seat on the Court of Appeals. (Photo of Judge Sognier and Blackburn) In 1998, a practicing attorney from Atlanta, Anne Elizabeth Barnes, ran for an open seat on the Court. Two other contenders vied for the position, but Anne Barnes won in the primary without a runoff, becoming the first woman to be elected to a statewide judicial position in Georgia without having first been appointed to the bench by the Governor. (Photo of Barnes at swearing in by Gov.)

The Barnes race of 1998 would, however, be overshadowed by the contest of 2004. In that year, Judge Frank Eldridge announced his retirement from the Court of Appeals, making the effective date of his departure the end of his term. Thus, the upcoming vacancy would have to be filled through election. Six candidates, Debra Bernes, William A. Hawkins, Howard Mead, Thomas E. Rawlings, Mike Sheffield, and Elizabeth Lee Tarte Wallace, campaigned actively for the position.

On the evening of July 9, 2004 a debate among all candidates was televised from the studios of Station WAGA, the Georgia Public Broadcasting affiliate in Atlanta. A debate of this size had not occurred before in Georgia judicial history on the television screen.

The non-partisan primary election was rapidly approaching when it was discovered that in Laurens County, Georgia, there had been a misprint on absentee ballots. The error resulted in the name of one of the candidates, Howard Mead, being incorrectly listed as "Thomas Mead." The problem was corrected prior to the primary with regard to ballots to be used that day at the polling places, but absentee ballots had already been mailed with the incorrect name. This relatively minor mistake from a small rural county was to have disproportionately large consequences.

The primary election was held on July 20, 2004 and candidate Debra Bernes, a Cobb County prosecutor, was top vote-getter. She exceeded her closest rival, Mike Sheffield, by more than 100,000 votes. Mike Sheffield in turn stood ahead of Howard Mead with a 382 vote margin. Under election rules, Mike Sheffield won the right to a run-off election with Debra Bernes, and the two candidates began preparations to continue their quest for the judgeship.

In the meantime, the Mead campaign examined vote totals and believed that there was a sufficient problem with the incorrectly printed absentee ballots in Laurens County to put the entire primary in doubt. Accordingly, the Mead campaign filed a lawsuit to overturn the election.	On August 6, a hearing was held in the Cobb County Superior Court to determine whether the irregularities in the Laurens County vote were sufficient to overturn the entire election. On the evening of the same day, Debra Bernes and Mike Sheffield took part in another televised debate. Even while the candidates were debating, their lawyers were puzzling through the decision of the Superior Court upholding the primary election. The Mead campaign then appealed that decision to the Supreme Court of Georgia.

Just three days later, on August 9th, the Supreme Court halted the Court of Appeals run-off election due to take place the next day. The campaigns of the candidates were instructed to prepare briefs addressing the questions of whether the misprinting of ballots from Laurens County was sufficient to set aside the entire primary. A decision to overturn the initial primary could invalidate all the results of the primary election. However, in a generous gesture, the candidates finishing in the bottom half of the slate agreed they would not run again in the primary regardless of the Supreme Court decision.

On September 2, 2004, a closely divided Supreme Court ruled. 28 The majority consisted of Justices Norman Fletcher, George Carley, and Harris Hines, with Justice Carol Hunstein specially concurring. Justice Leah Sears had not participated, being replaced by Judge Neal J. Dickert, who dissented along with Justices Robert Benham and Hugh Thompson. Thus, by only a one vote margin was the case decided, with two former Court of Appeals Judges (Justices George Carley and Robert Benham) on opposite sides of the result.

The Supreme Court majority found that the incorrect listing of candidate Howard Mead meant that the Laurens County absentee ballots did not comply with Georgia law which required the names of all qualified candidates be listed on the ballots. The Supreme Court did not see this as an insignificant problem because some individuals who voted for other candidates might have voted for Mead if his name appeared correctly; likewise, it was possible that some who did not vote in the contested race would have voted for candidate Howard Mead but chose not to vote for anyone when his true name could not be found on the ballot. The Court also noted that the number of misprinted ballots exceeded the difference in the number of votes between Mike Sheffield and Howard Mead. The Court ruled that the result of the election had been sufficiently cast in doubt so that the runoff between Debra Bernes and Mike Sheffield could not go forward.

The Supreme Court ordered a new primary election to take place on the same day as the general election, November 2, 2004. Campaigning resumed by candidates Debra Bernes, Mike Sheffield, and Howard Mead and continued through the fall. On the day of the general election, voters again placed Debra Bernes in the lead, but the second and third finishers switched place. Howard Mead finished second on the November ballot ahead of Mike Sheffield, and thus won the right to meet Debra Bernes in a runoff.

The ensuing weeks saw unprecedented campaigning, which included substantial expenditure by both sides. Howard Mead, a former aide to Governors Zell Miller and Roy Barnes, is reported to have raised in excess of $3,000,000 to fund his race. Candidate Debra Bernes reported contributions of more than $600,000.00. The total funds raised by all candidates vying for this one judgeship would be a sum well in excess of $4,000,000.00, an amount many times the salary of the seat (which paid approximately $150,000 annually at the time).

The campaign was notable not only as the most expensive in Georgia judicial history, but also for its sophisticated use of technology. Both the Bernes and Mead campaigns used modern electioneering methods including extensive use of the internet, electronic telephone messages, and use of radio and televison interviews and advertising.

The longest and most dramatic judicial election in the history of Georgia ended when voters went to the polls for a special runoff election on November 23, 2004. The turnout was light, the election coming two days before Thanksgiving. However, voters who participated gave a resounding victory to candidate Debra Bernes, the first Jewish Georgian to win a statewide election in Georgia history.29 Governor Sonny Perdue, administered the oath of office to Judge Debra Bernes on December 7, 2004 in the House Chamber at the Capitol. (Photo Bernes being sworn in by Gov.) On January 1, 2006, Judge Bernes became the 70th member of the Court, and put the rigors of the campaign behind her. "I do not want my election to be the defining experience of my professional life," Judge Bernes has said, "I want it to be my service." 30 An election cycle requiring three elections and involving fund raising in the millions would have been inconceivable to those persons who supported the creation of the Court of Appeals in 1906.

Members of the Georgia General Assembly watched the 2004 election, and it figured in legislative discussions and proposals in the 2005 session. The 2005 General Assembly enacted O.C.G.A. § 45-12-61, making any person ineligible for an appointment to fill a vacancy on the Supreme Court, the Court of Appeals, or other state courts who had made "contribution to or expenditure on behalf of the governor or the governor's campaign committee either (1) in the 30 day period preceding the vacancy…or (2) on or after the date the vacancy occurs." The legislation did have a saving provision which allowed a person to be appointed who had made a contribution within 30 days preceding the vacancy.

Perhaps also reflecting concern over the course of the 2004 election, a bill was introduced to create a taxpayer funded mechanism for financing judicial elections. This proposal sought to ensure "fairness of democratic elections in Georgia and to protect the constitutional rights of voters and candidates from the detrimental effects of increasingly large amounts of money being raised and spent to influence the outcome of elections, these effects being especially problematic in elections of the judiciary since impartiality is uniquely important to the integrity and credibility of the Courts." 31 The act did not pass. In the aftermath of the Bernes election, there were also discussions about changing judicial races from non-partisan to partisan races. Whether these two changes for judicial elections will become reality remains to be seen. What does seem certain is that as the Court enters its second century, this issue will be one which attracts continuing debate.

Conclusion

The final years of its first century saw unprecedented growth and change in the Court. In 1980, the Court consisted of nine Georgia males who held their seats without significant election activity. Twenty-five years later, a larger, more diverse and very technologically sophisticated Court was handling one of the busiest and varied caseloads of any appellate court in the nation, and the potential existed that joining its ranks in future could become a more hotly contested and certainly more expensive process.

Yet, for all the change, the Court ended its first century much as it began, as a body dedicated to the interpretation of law. This spirit was perhaps best summarized by Judge Marion T. Pope ( Photo Pope) upon his retirement from the Court in 2002. The words he spoke can serve as a tribute to the history of the Court of Appeals of Georgia, as well as a guideline for the future: "For 21 years, I have had daily interaction with the best and brightest this State offers. The cases and the issues we consider continue to challenge and to fascinate me. … I think the law is alive. I think the law lives, and it was intended to adapt and grow as the culture and society evolved. This job allows you to be part of that evolution." 32