Proposal to Expand the Georgia Appellate Courts

The chair of the senate judiciary committee, Senator Preston Smith, has introduced Senate Bill 429, which would increase the size of Georgia’s appellate courts. It would increase the Supreme Court from seven justices to nine and the Court of Appeals from twelve judges to fifteen.

The bill would also generate revenue. It would impose an additional $100 filing fee in most civil actions. The proceeds of that additional fee “may be appropriated for the purposes of funding salaries of judges and the operational needs of the judicial system in this state.”

The revenue-enhancing proposal is not surprising. But the proposal to expand the appellate courts is surprising in light of the state’s severe budget difficulties. Earlier this year, those budget difficulties required the appellate courts to lay off staff.

Budget concerns aside, as a matter of policy generally, the proposal to expand the appellate courts is a mixed bag. The proposal to expand the Supreme Court is not a bad idea. Supreme Courts around the country come in three sizes: five, seven, and nine members. Seven and nine are about equally popular. But neither is expanding the Supreme Court a good idea. Expanding of the Court of Appeals, on the other hand, is overdue.

Expanding the Georgia Supreme Court would do little good, because the Supreme Court makes its decisions as a whole court. It is not at all clear that two additional justices would increase the court’s judging power. There would be two more justices to draft majority opinions, but there would also be two more justices to draft dissenting opinions and to be consulted in efforts to reach a consensus.

Nor does our Supreme Court need more judging power. There are no indications that it is having difficulty managing its caseload or that its caseload is excessive in comparison to other state supreme courts.

The Court of Appeals is another matter entirely. Like most state intermediate appellate courts, the Georgia Court of Appeals is the workhorse of our appellate system. The Court of Appeals handles about 85% of the appellate caseload. Comparison to other states would justify tripling the size of the Court of Appeals. Florida has 62 appeals court judges. The District Court of Appeals for the single county in Ohio containing Cleveland has the same number of judges as Georgia’s statewide Court of Appeals.

The Court of Appeals was expanded from 9 judges to 12 in 1999. But since then the trial court bench has continued to expand with the population. So the Court of Appeals has lost most of the ground it gained in 1999 and can once again make a credible claim to the highest caseload per judge of any state appellate court in the country.

Expansion of the Court of Appeals would address real caseload pressures. The Court of Appeals has never missed the constitutional deadline by which it must decide its cases. It has responded to caseload pressures by becoming more and more efficient.

But that efficiency comes at a cost. The cost is that more and more of the responsibility for each case devolves onto the assigned judge – and within each judge’s chambers to the assigned staff attorney. The pressure of getting their own opinions written undermines the judges’ the ability to serve as checks and balances upon one another.

Checks and balances are at the heart of the role of the Court of Appeals. Its role is to serve as a check on the broad powers entrusted to our trial courts. Undermining the internal checks and balances within the Court of Appeals undermines its ability to play its role. So expanding the Court of Appeals would strengthen the rule of law throughout Georgia.

That is not to say, of course, that such an expansion is the justice system's most pressing need this year.



Chris McFadden