Supreme Court of Georgia

I was at the Georgia Supreme Court for argument on a habeas case today. This was my first appellate argument of 2019. I’ll be at the Georgia Court of Appeal on February 12. You’ll find a link to the recording here. I won’t comment on a pending matter except to say that this is a pro bono case I’m handling through The Habeas Project, a pro bono law school clinic at Mercer University law school. My special thanks to Meagan Hurley and Addison Gant, two third-year law students who did the bulk of the research and writing on this case.

I also ran into Leighton Moore after he finished his argument on an interesting first amendment matter.

A great part of a SCOG argument is when I power up my phone afterward and find a deluge of commentary from colleagues and friends who watched online. Today was no different — a fantastic start to a new year.

Last weekend, I chaired a two-day seminar on appellate and habeas practice. GACDL hosted the seminar at my alma mater, the Georgia State University College of Law. I’m jealous of their new building. We didn’t exactly have it tough at the old Urban Life Building, but the new kids are lucky to be in such a cool space. As for the seminar, I took good notes and plan to steal from our speakers for the next several posts.

The theft starts right now with this incredible one-liner from Justice Nels Peterson from the Supreme Court of Georgia. Here’s what he said about the difference between an appeal and a cert petition:

“The appeal is for your client. The cert. petition is for the public.” To quote Rule 40, “a petition for the writ will be granted only in cases of great concern, gravity, or importance to the public.”

This pithy statement has been the subject of many a discussion with lawyers who have reached out for advice on how to do a cert. petition. It is not much of a stretch to say to lawyers that the Court doesn’t particularly care about their client. When it comes to cert, the law is all that matters. The pitch on cert. is to the potential precedent not the client’s sense of injustice.

 

Flickr CC Qalander
Flickr CC Qalander

Jim Galloway, in the Atlanta Journal’s Political Insider Blog, reports that the Governor is formulating a push in next year’s session of the legislature to increase Georgia’s seven-member Supreme Court by two justices.

Mr. Galloway opines that the governor’s move could expand his influence beyond his eight year tenure and compares a potential Franklin Roosevelt’s push, during the depression, to “pack” the court with like-minded Supreme Court justices. Such is an interesting take on the Gov.’s move. However, I don’t know that the comparison is necessarily apt. A presidential appointment certainly has the potential to expand a president’s influence beyond his own term. After all, United States Supreme Court justices have lifetime appointments. Also, the United States Supreme Court hears issues, in the aggregate, that are likely to shape the direction of public policy. While there are certain cases like that before the Georgia Supreme Court, that court also takes on its fair share of routine criminal and civil matters. Again, it’s an interesting theory. But I have never thought of George’s appellate courts as an extension of the governors who appointed the justices that sit on it. Perhaps I haven’t thought of it enough.

While the governor may have some hand in creating these new judgeships, his appointment would not extend for life. Georgia Supreme Court justices seek reelection at the end of their term. Though incumbency has its benefits, particularly in judicial elections. Interestingly, the Court of Appeals was expanded by three judges in the most recent legislative term. From an initial field of nominees of approximately 200, approximately 100 applicants remain.

Mr. Galloway reports that two “inducements” are on the table to increase the number of Supreme Court justices by two. There is a promise to build a new judicial building as well as talk of reducing the jurisdiction of the state Supreme Court. That jurisdiction is already significantly narrow. And it seems strange that the Supreme Court would undergo a historic expansion as part of a package deal to reduce the court workload. Also, it is difficult to imagine that either court would like such a proposal. For the Supreme Court, loss of jurisdiciton is a loss of power.

For the Court of Appeals, increased jurisdiction brings with it an increased caseload. It also seems odd that there would be a push to potentially increase the workload of the Court of Appeals. The Georgia Court of Appeals is known as one of the busiest if not the busiest intermediate appellate courts in the nation. The Georgia Court of Appeals hears on average about 3200 cases per year over the last five years. That workload means that each judge has a caseload of approximately 280. The addition of three Court of Appeals judges will significantly decrease the workload of each judge and probably increase the quality of opinions being authored as judges will have more time to spend on each case. By contrast, the seven justices on the Supreme Court here fewer direct appeals and have a good bit of discretion over their caseload where petitions come before them. I’m certainly not in the loop for any of this, but I wonder what category of cases would be taken away from the Supreme Court.

I will be interested to see how this all falls out and what the debate is about these two new additions. From a lawyer’s perspective, a move to increase the resources of either court is welcome. A better staffed court is can only help the litigants before it.

Yesterday, I assisted with an oral argument at the Supreme Court of Georgia. I was on the 2pm calendar (The Court usually sits in two sessions). As I often do when I have an afternoon calendar, I watched the 10am session online. I’ve written before about the value of watching other cases  on the calendar when you have court. It’s a good way to get oriented if you’ve never been to the court before or to take the temperature of things even if you have. You can do that virtually at the Supreme Court before you leave your office.

Today, I opened a window on my computer and watched some oral arguments from today’s sessions. There’s a link on the Supreme Court’s homepage, and this one may work, too. The Court also keeps an archive of the current term’s arguments online. Don’t have time or a way to read the briefs that go with the argument? The Court has this covered with well-written summaries. Want to find out how it all turned out? The opinions are also available online.

Lawyers 100 years ago or even 10 years ago couldn’t have imagined that such a resource as this would be around and would have loved to have something like this. All of the better lawyers I know read the Opinions Weekly from the Fulton Daily Report or some form of advance sheets. It’s a good practice but a monotonous one as you search for the criminal cases of significance (most aren’t particularly significant in the criminal realm). A practice of regularly watching argument at the Supreme Court is similarly worthwhile

Looking for a good way to figure out which cases are most worth watching? Cases where the Court has granted cert. to review a Court of Appeals case or where the Court has granted a habeas petitioner’s Application for Certificate of Probable Cause to Appeal tend to be more exciting. Look for a (G) in the case number for cert. cases or an (H) for habeas cases. The website is a good place for non-lawyers to learn how the Court decides cases, for lawyers to keep up with developments in the law, and for lawyers to prepare for oral argument (by seeing what to do and what not to do). Murder appeals and family law appeals tend not to draw questions from the justices.

HB 349 has been the subject of much discussion for its sentencing innovations. However, nestled within it are some significant changes to the appellate code. This post will familiarize you with the appellate provisions of HB 349 and provide some tips to get around them.

Pre-HB 349

Under the soon to be old law, any party in a criminal case who wants to appeal must do so by following a two-step process:

  1. Get a certificate of immediate review from the trial court within 10 days of the ruling that the party wants to appeal.
  2. File a discretionary appeal application with the appellate court.

New Law

Under Section 1 of HB 349, O.C.G.A. Section 5–7–1 (5) has been created, which provides that:

An appeal may be taken by and on behalf of the State of Georgia from the superior courts, state courts, and juvenile courts and from such other courts from which a direct appeal is authorized to the Court of Appeals and the Supreme Court of Georgia in criminal cases and adjudication of delinquency cases in the following instances

From an Order, decision, or judgment excluding any other evidence to be used by the state at trial or on any motion filed by the state or defendant at least 30 days prior to trial and ruled on prior to the impaneling of a jury or the defendant being out in jeopardy, whichever occurs first if:
(A) Notwithstanding the provisions of Code Section 5–6–38, the Notice of appeal filed pursuant to this paragraph is filed within two days of such order, decision, or judgment; and
(B) The prosecuting attorney certifies to the trial court that such appeal is not taken for purpose of delay and that the evidence is a substantial proof of a material fact in the proceeding

In plain English, the new law provides

  • the State may directly appeal a pre-trial order excluding its evidence or on any motion filed at least 30 days before trial
  • if it is ruled on before jeopardy attaches or the jury is impaneled
  • if the state files a notice of appeal at least 2 days before trial, and
  • the State certifies that the appeal is not for purpose of delay and is material

Ways Around It

  1. Avoid filing motions in limine when you can. There are certain motions that must be filed within 10 days of arraignment. The rest may be filed at any time, even during trial. Where possible, hold those motions until after the jury is impaneled. As soon as the jury is sworn, file your motions and ask for a hearing.
  2. Defer rulings, when you can. If the hearing on your motion to suppress or on the State’s motion appears to be going well, ask the court to defer its ruling until jeopardy attaches.
  3. Get a “tip” instead of a ruling. Then request that the Court not formally enter its ruling until it’s too late for the State to appeal. At the conclusion of the motions hearing, move to hold the ruling until the matter is proceeding is beyond the reach of the new law. Ask the Court, not to rule, but whether the Court is inclined to rule your way.

Conclusion

The new appellate provisions in HB 349 are about as hole-laden as Swiss cheese. Unfortunately, they encourage a sense of trial by ambush as important matters are deferred until juries are sworn or jeopardy has attached. It also encourages litigation by nods, winks, and guesses in an effort to fix something that was never broken.

Alas, here are a few ways around the new law. Let me know if you have other ideas.

This won’t end well. Anthony Peters, the former Catoosa County assistant Magistrate Judge has filed a civil rights suit against the his former boss as well as the Sheriff of Catoosa County. When I read Joy Lukachick’s article (hat tip to her) in the Chattanooga Times Free Press about the lawsuit, I had to pull the Complaint off of PACER, the same way rubberneckers have to slow down to watch the traffic disaster in the oncoming freeway.

And, to my fellow rubberneckers, I offer this Complaint for your entertainment. Take a gander, and sleep well in the assurance that there is some lawyer out there who will file your lawsuit for you. No matter how many lawyers have turned you away, don’t be deterred. You will meet the right lawyer one day:  Peters Complaint (PDF).

Continue Reading Ex-Magistrate’s Lawsuit Blackens Eye of Ga. Judiciary

This week, I received an email from Don Roch at Bowers & Roch in Canton, Georgia, in response to a post on a CLE talk I gave on typography.

He took issue with my claim that, in Georgia appellate courts, you are stuck with Courier New 12 or Times New Roman 14. Don did a “double take” because he has been using fonts other than those. He goes on to point out that you can go beyond those two suggested fonts and not run afoul of Georgia Court of Appeals Rule 1 or Georgia Supreme Court Rule 16. Technically, he is right. Both rules are concerned with type size. The former calls for type no smaller than “10 characters per inch.” The rule says that Times New Roman 14 is fine. While the latter calls for type no smaller than Times New Roman 14 or Courier New 12, meaning that you are safe if you use those.

Don is absolutely right.

Thanks for the “catch” Don. I did misstate the rules as being more restrictive than they are. The better way to have said it is that you know you are safe if you go with those fonts. You may choose different ones as long as your font size is otherwise in compliance.

Please, if you do, make sure that you are otherwise in compliance. Get the ruler out before you submit your filing.

If you read this blog regularly, it is no secret that I am a recent convert and evangelist for Matthew Butterick’s Typography for Lawyers. I have a long way to go in my legal writing before I reach a point of mastery, but I am happy to be paying attention. One of the chairs for the Spring Seminar of the Georgia Association of Criminal Defense Lawyers is also an acolyte, and I was invited to speak on typography for an hour. It turns out that I spoke on a little more than typography — subtopics included the need to provide a succinct summary of the desired result, the issues on appeal, and the reasons the court should grant relief, and the need to limit the number of issues on appeal as much as possible. Most cases, after all, are about just one thing.

I was the next to last speaker on the last day. And, as passionate as I am on the topic, I feared that the topic was a bit nerdy and perhaps boring for some. I hedged my bets by putting some serious work into my presentation and the Keynote slides. Writing materials for a talk on typography is also an intimidating task. The project invites a more critical look than others might. And I put as much planning as I could into making the topic engaging.

It turns out that I was wrong to be afraid. Lawyers, even criminal defense lawyers, are a conservative lot and sometimes not good with suggestions about the need for change. And so it came to pass that I was the only speaker of the entire conference to get heckled. That’s right, in a talk on fonts and the structure of appellate briefs, given on the last day of a three day seminar in Savannah, Georgia, I had a heckler. The guy who spoke on abortion, contraception, and the right to privacy sailed right through without as much as a sigh.

I’ll add that I was thrilled to be heckled on this topic. It is heartwarming that anybody is passionate about typography to such an extent that she told me that an example brief I put on the screen “looked like [shiitake]” because I didn’t turn on full justify and that I was off my rocker for criticizing Times New Roman and Courier. I like passion, even when such passion is misplaced. I am thankful that the reception was so intense, and I also want to take a few lines to say more about these three things — justification (in a graphic design sense not in a theological sense, though I will strive to be graceful), the Courier font, and the Times New Roman font.

Full Justification is a Matter of Personal Preference

The audience member was a serious proponent of full justification, noting by way of simile, that my decision to left-align the text rendered an excrementitious product. The opinion was as wrong as it was hyperbolic. As to the hyperbole: at no point during the presentation did green flies begin to buzz about the screen where my Keynote was being projected. As to the heckler being wrong, I’ll respond here.

Butterick writes (and I defer to him because he wrote the book and because he is credentialed in this area) that “compared to left-aligned text, justification gives text a cleaner, more formal look.” He also notes that justification “alters the ideal spacing of the font, but in paragraphs of reasonable width it’s usually not distracting.”

In the end, he notes that “[j]ustification is a matter of personal preference. It is not a signifier of professional typography.” He cites as an example the fact that many newspapers mix it up.

I will add that I never endorsed either way. I just used a previous brief of mine, one where the text was left-aligned, as an example. The audience member has a strong preference for justification. She’s not wrong to have it but was wrong in the extent of her criticism of left alignment.

A Defense of Courier, Really?

I took some heat for my criticism of Courier. And I was actually quite surprised that anybody but a prosecutor or bureaucrat would feel so strongly about this font. This font served its purpose in 1955 when it was invented. The font was created for the “golfball” typing head that IBM was developing and would later premier in its 1961 Selectric Typewriter. The font, and other monospaced fonts, was created to deal with mechanical issues with the typewriter. To quote Mr. Butterick, “[monospaced fonts] were not invented to win beauty contests.”

To quote an article from Slate, “its design principles are little more than phantom limbs: Like any other typeface, it is whisked from the digital ether without regard for its original use. … What is most remarkable of all, of course, is that a typewriter font is still being used at all in the post-typewriter age.”

With the exception of Robert Caro, I do not know of anybody who still uses a typewriter. So, it really isn’t necessary to use a monospaced font.

When you use monospaced fonts, you get fewer words per page, and the font is hard to read when compared to proportional fonts. There really is no reason to use Courier unless a court rule requires it.

In 2004, Courier fell out of favor with the State Department. The preferred font is now Times New Roman 14.

It’s Time for the Decline and Fall of the (Times New) Roman Empire

The heckler also has a special place in her heart for TNR. It’s an okay font. Though its problem is its ubiquity. Using TNR is essentially not choosing a font at all. According to Mr. Butterick, the problem is the blah factor:

When Times New Roman appears in a book, a document, or advertisement, it connotes apathy. It says, “I submitted to the font of least resistance.” Times New Roman is not a font choice so much as the absence of a font choice, like the blackness of deep space is not a color. To look at Times New Roman is to gaze into the void.”

Finally, he advises, “if you have a choice about using Times New Roman, please stop. Use something else.” A person can choose Times New Roman and be passionate about it (I know one person who does and is). But that choice conveys apathy.

A Final Word

If you are in the Georgia Supreme Court or the Georgia Court of Appeals, you have little choice about your font selection. You can go with Courier New 12 and look like a prosecutor, or you can go with Times New Roman 14. At either of those courts, TNR conveys that you don’t want your appeal dismissed and that you don’t want to be sanctioned. It does not convey apathy. In client letters and in filings in other courts, you can and should (in the name of all that is holy) choose other fonts.