Supreme Court Rule Restores Access to Appellate Courts; Court of Appeals Yet to Act

The Georgia Supreme Court has now adopted a rule that provides at least a meaningful short-term solution to the fee increase that threatens access to the Georgia appellate courts. Although the rule as adopted is different from the one I initially drafted, I’m gratified by the extent to which the new rule is based on my work.

Unfortunately the Court of Appeals has yet to act. According to Chief Judge Yvette Miller, who is quoted in today’s Daily Report, some members of that court are reluctant to implement a similar rule out of concern that doing so would be contrary to their duty to "follow the law."

But by adopting its rule, the Supreme Court has necessarily determined that the appellate courts do have the lawful authority – and therefore the responsibility – to implement a solution. As an academic matter, that determination is subject to dispute. But the Court of Appeals is an inferior appellate court; it cannot legitimately dispute the Supreme Court's determination. The Court of Appeals can only discharge or fail of its responsibility.