Form for Letters and Emails

Here is a form for letters and emails in support of my candidacy.  Please feel free to modify it.  

In the November 30 runoff election for an open seat on the Court of Appeals, I urge you to vote for Chris McFadden.  He is by far the best qualified candidate.

• Chris wrote the book on Georgia appeals. Literally. He is the first author of McFadden, Brewer & Sheppard’s Georgia Appellate Practice.
• When the state bar polled its members, asking us to state whether the candidates for statewide judicial office of whom we had direct knowledge were well qualified, qualified, or not qualified, Chris received - by a substantial margin - the greatest number of rankings as qualified and well qualified.  The full results are at gabar.org. His practice has focused on appeals for 20 of the 25 years Chris been a lawyer. It is now limited to appeals. He has handled a wide variety of appeals: criminal, civil and domestic.
• Chris has 85 published opinions from the Georgia appellate courts and more experience practicing before the Georgia appellate courts than the other five general-election candidates combined. Support for this is at mcfaddenforappealscourt.com.
• He wrote a part of the Appellate Practice Act, a reform that saves a number of cases each year from being dismissed because of a procedural mistake.
• Chris is a founding past chair of the Appellate Practice Section of the State Bar.
• Through the section and other organizations, Chris has been involved in numerous other efforts to improve Georgia appellate practice. Those efforts include a constitutional amendment that expands the authority of our Supreme Court to answer questions from federal courts about Georgia law. 
• Earlier this summer, Chris drafted the rule that resolved a crisis that arose when the legislature increased the fee for copying appellate records from $1.50 to $10 – per page. That fee increase raised the administrative court costs of routine appeals to tens of thousands of dollars. Working with a coalition of bar leaders, he drafted a proposed rule creating an alternative procedure. The president of the state bar submitted the proposal to the appellate courts, which adapted and adopted it.
• Chris helped the Innocence Project secure the exoneration of Robert Clark, who spent 23 years in prison for a crime he did not commit. 

As to why all of that matters, voters should consider two things: preparation and perspective. As to preparation, Chris has been reading and writing and responding to appellate briefs for twenty years.

But the perspective he would bring to the court is what really distinguishes him. Appellate expertise is plentiful on the Court of Appeals. But most of that expertise was gained from inside a necessarily insular institution. Chris's expertise has been gained over twenty years from the outside, practicing before the court, providing guidance to others practicing before it, and working to make it more accessible.

More Experience Than the Other Five Candidates Combined

We’ve run the numbers.  And thanks to an acknowledgment last week from one of my opponents, I can state that I have more experience practicing before the Georgia appellate courts than my five opponents combined.

The claim is based on three metrics: published opinions, filings in the Supreme Court, and filings in the Court of Appeals.  By each of those standards, my experience exceeds that of all of my opponents combined.

The acknowledgment is from Stan Gunter, whose name has been on every criminal appeal out of his circuit since he became district attorney.  Last week, at a candidate forum at state bar headquarters, he acknowledged that in most of those appeals, he played a limited, supervisory role – not an active role.  So it is appropriate – indeed conservative – to assume that he played an active role in no more than half of them.

 Published opinions 

There are a number of commercial databases in which published opinions can be searched.  We did a Westlaw search for participating attorneys in Georgia opinions.  These are the results:

• Chris McFadden, 85 reported cases, the most recent in 2010.
• Stan Gunter, 3 reported cases prior to becoming district attorney, listed in 70 reported cases as district attorney, the most recent in 2010.  As explained above we assume, for present purposes, that he has played an active role in no more than 35, for a total of 38. 
• Antoinette “Toni” Davis, 15 reported cases, the most recent in 2009.
• David N. Schaeffer, 11 reported cases, the most recent in 1999. 
• Adrienne Hunter-Strothers, no reported cases.
• James Babalola, no reported cases.

Filings in the Georgia Supreme Court

The Supreme Court’s docket for the past three years is on line and can be searched by attorneys’ names.  We did so.  These are the results:

• Chris McFadden, 16 cases, the most recent in 2010. 
• Stan Gunter, 3 cases, the most recent in 2010. 
• Adrienne Hunter-Strothers, 3 cases, the most recent in 2010. 
• Antoinette “Toni” Davis, 2 cases, the most recent in 2009.
• David N. Schaeffer, no cases.
• James Babalola, no cases.

Filings in the Georgia Court of Appeals

The docket of the Court of Appeals is on line back to 2000, but it cannot be searched by attorneys’ names.  So Charles Cork, my campaign treasurer, devised a computer program that examined every docket entry.  He has prepared a report describing his methodology.  These are his results:

• Chris McFadden, 73 cases, the most recent docketed to 2011.  (The appellate courts normally docket cases to the next term of court.)
• Stan Gunter, 88 cases, the most recent docketed to 2010.  As explained above, we assume, for present purposes, that he has played an active role in no more than 44. 
• David N. Schaeffer, 6 cases, the most recent docketed to 2004.
• Antoinette “Toni” Davis, 3 cases, the most recent docketed to 2009.
• Adrienne Hunter-Strothers, 1 case, docketed to 2009.
• James Babalola, no cases. 

Breadth of experience 

Quantity is not the only difference.  At last week’s forum we were asked to describe the breakdown of our appellate-practice experience.  Each of my opponents acknowledged that their appellate-practice experience is mostly or entirely limited to a single area – civil, criminal or domestic.  I reported that all three of those areas represent a substantial part of my practice.  Of my 85 reported appellate cases, 59 are civil, 10 are criminal, and 16 are domestic.

Right now, in the midst of the campaign, the appeals on my docket include: an action to partition land, a burglary case (pending at the motion-for-new-trial stage), two divorce cases, a will contest (recently resolved at the motion-for-new-trial stage), a dispute arising out of the termination of a corporation’s president by a majority of the other stockholders, a claim against an attorney for malpractice and fraud, a securities fraud claim, a receivership action initiated by a district attorney, and a construction contract dispute arising out of improvements at the Atlanta airport.

Bar Poll Results

The State Bar released its poll results today. By large margins, I received the most “well qualified” and “qualified” responses in the Court of Appeals race.

Candidate	Well Qualified	Qualified	Not Qualified	Don't Know
James Babalola	32	106	189	2,369
Antoinette “Toni” Davis	324	259	168	2,016
Stan Gunter	250	288	151	2,061
Adrienne Hunter-Strothers	111	218	345	2,046
Chris McFadden	1,132	639	113	1,036
David N. Schaeffer	859	540	108	1,319

Judicial Elections and the Rule of Law

The tension between democracy and the rule of law was elegantly described for National Public Radio’s This I Believe series by University of Arkansas law professor Michael Mullane. “The law,” he said, “is wonderfully strong and terribly fragile.”

He argued that the rule of law is subject to “the Tinkerbell effect.” It exists only so long as we believe in it.

The rule of law is the promise symbolized by the blindfold and the scales.  It is the promise of decisions made in the open on the merits, not in backrooms.  It is the promise John Adams made, in the language of the 18th century, of government of laws and not of men.

The tension between democracy and the rule of law is the tension between holding judges accountable, and granting them sufficient independence to follow the law when doing so is politically unpopular.

Judges of Georgia’s higher state courts will be elected in nonpartisan elections in November.  In the context of judicial elections, the balance between democracy and the rule of law was maintained, until 2002, by enforceable ethics rules that constrained judicial candidates from promising to decide cases in on the basis of political platforms or personal predispositions.

In 2002 the U.S. Supreme Court decided Minnesota v. White and struck down such constraints on First Amendment grounds.  But contrary to some advocates of politicized judicial elections, White does not require judicial candidates to disavow the rule of law. The right to speak is not the duty to speak.  White holds that candidates for judicial office have a First Amendment right to demonstrate that they are unfit to be judges.

It is obvious that judicial candidates who promise particular results in particulars case are unfit.  The same is true of judicial candidates who promise predictable results in particular types of cases.

There are judicial candidates who say, or imply, that plaintiffs or defendants should always, or almost always, win in personal injury cases, or that the prosecution should always win in criminal cases.  (No one promises to rule in favor of criminal defendants.)

But the promise of the rule of law is the promise not to prejudge. It is essential to the rule of law is that each case be fairly decided on its own merits.  So campaign promises are not a proper way to hold judges accountable.

What about party affiliation?  Voters have a difficult time learning about judicial candidates. Partisan elections would provide voters some basis for making their decisions.

But partisan judicial elections are antithetical to the rule of law in much the same way campaign promises are antithetical to the rule of law.  A party platform is a series of promises.

The same problem arises as to judicial philosophy.  Judicial candidates who promise to be originalists – just like Justice Scalia – often mean simply that they will favor the defense in personal injury cases and the prosecution in criminal cases.  That, the justice has explained, is not what originalism is supposed to mean.

Most working judges do not have a judicial philosophy.  And, aside from the U.S. Supreme Court, which is a unique institution, that is as it should be.

The proper end of judicial philosophy, as of philosophy generally, is mindfulness.  We can see the world through no eyes but our own.  All judges – no matter how dedicated to the ideals of fairness and impartiality – are influenced by their predispositions.

It is one thing for a judge to be influenced by predispositions.  It is quite another for a judicial candidate to campaign on those predispositions. In the post-White era, it is all too easy for political platforms to supplant the rule of law.

The proper approach is not to attempt to turn off one’s perspectives.  That is impossible.  Rather a judge should be mindful and skeptical of them.  Judges should make use of their insights and experience, but should be mindful of the limitations of their perspective. Ultimately the problem is that there is no easy way to measure the qualities most essential to a good judge: fairness and impartiality.

The best approach is a conservative – “conservative” in the sense of old-fashioned and boring.  Old-fashioned, boring judicial candidates, who campaign on their qualifications and their commitment to fairness and impartiality are to be preferred.

Evenhandedness and impartiality are not exciting.  Fools sometimes confuse them with lack of principle.  But those qualities are essential to the rule of law.  Those qualities are the essence of what justice is.

Record Appendices in the Appellate Courts – Update

As promised, the Court of Appeals has posted a Guide to Preparing a Record Appendix, as well as a Record Appendix Filing Form.

The Honorable Debra Halpern Bernes, Rest in Peace

Judge Bernes died today after a long battle with cancer.  She was only 54.

I had one case against Debra, ten or fifteen years ago, when she was the appellate lawyer in the Cobb DA’s office.  I was seeking post-conviction relief for a man I firmly believe to have been wrongfully convicted of a grave offense.   The case was an odyssey.  I pursued it for more than seven years before seven different courts and against nearly that many prosecutors.  Of all the judges and all the prosecutors I faced, she was only one who really listened when I argued that a terrible injustice had been done.

She was a good lawyer, a good judge, and a good person.

Georgia Justice Project: Supreme Court Should Overturn Wrongful Murder Conviction

Last week I benched a moot court for the Georgia Justice Project.  That is, I played the part of a Georgia Supreme Court justice in a rehearsal for an oral argument.  Making the argument were Doug Ammar, the executive director of the project, and Tracey Ledbetter, of the Sutherland law firm.

Their client, Kareem Allen, is appealing a murder conviction.  The murder arose out of a crowded teenagers’ party.  Mr. Allen was one of four defendants charged with the murder.  The facts were confusing; there was a great deal of evidence.  But as to Mr. Allen,  the evidence boils down to not much.  Doug and Tracey are convinced of his innocence.

The argument was today.  They did a fine job.