Committee to Elect Chris McFadden Judge, Georgia Court of Appeals

Form for Letters and Emails

2010-11-09T08:49:00.000-08:00

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

2010-09-19T21:25:00.000-07:00

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

2010-09-13T12:33:00.000-07:00

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

2010-09-08T19:40:00.000-07:00

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

2010-07-29T18:12:00.000-07:00

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

2010-07-20T16:30:00.001-07:00

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

2010-07-05T18:09:00.000-07:00

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.

Record Appendices in the Appellate Courts – Guide to the New Three-Step Procedure

2010-06-28T14:30:00.000-07:00

Background

When a case is appealed, the appellate court must have access to the trial court’s record. There are a variety of ways of making that happen, and technology is creating additional options. For many years, the procedure in Georgia had been that the trial-court clerks were charged with copying and certifying the record. That procedure is set out in the Appellate Practice Act at O.C.G.A. § 5-6-43. The clerks are authorized to charge a statutory fee for that service. For many years that fee had been $1.50 per page. O.C.G.A § 15-6-77 (g) (12).

While $1.50 was a lot for a single photocopy, it represented a relatively small part of the total cost of an appeal. Things changed at the end of the last legislative session. A bill that updated the various fees charged by the state increased the appellate records fee to $10 per page. O.C.G.A § 15-6-77 (g) (12). The effect would have been to roughly double the already-considerable cost of an appeal, effectively cutting off access to the appellate courts.

Recognizing that the situation was an emergency, the Supreme Court and the Court of Appeals adopted rules (adapted from a proposal I drafted), that offer an alternative. The alternative is party-created record appendices. The procedure for party-created appendices is set out at Supreme Court Rules 67 and 69. Court of Appeals Rule 17 simply incorporates the Supreme Court rules by reference. (“Notwithstanding anything to the contrary in these rules, this Court will accept for consideration on the merits of any appeal any record or substitute therefor which the Supreme Court of Georgia accepts under its rules.”)

Supreme Court Rules 67 and 69 had been addressed to the clerks of the trial courts. Now the former rules have been designated subparts one, and new subparts two have been added. The new subparts authorize party-created appendices and specify the procedures for submitting them.

Procedure

While the procedure set out at Rules 67 and 69 is in many respects an improvement, it imposes additional responsibilities on appellants. Those responsibilities must be discharged early in the appellate process – along with, and very soon after, the filing of the notice of appeal.

Those responsibilities must be taken seriously. Existing law subjects an appeal to dismissal if an appellant is found responsible for inexcusable and unreasonable delay in transmittal of an appellate record. O.C.G.A. § 5-6-48 (c). So appellants should be at pains to exercise a high level of diligence and to avoid becoming party to a test case as to any ambiguities in the new rules.

The Supreme Court has posted frequently asked questions, forms, sample materials and timelines. The Court of Appeals has announced its intent to post “on its website soon an explanation of how these rules should be applied in the Court of Appeals and guidelines for preparing the record appendix.” So a party preparing an appendix should check the appellate court’s website. Court of Appeals Rule 17 suggests, at least for now, that the Supreme Court’s guidelines can be relied upon in the Court of Appeals.

The new rules set out a three-step procedure.

Step One – Notice of Appeal. The notice of appeal – or if necessary amended notice of appeal – should provide, “The clerk will please omit from the record on appeal everything except this notice of appeal (or the notice of appeal and this amended notice of appeal).” Note that the appellant will be responsible for timely payment of the $10 per page charge for the notice of appeal, as well as the new $35 per transcript charge for filing the transcript. O.C.G.A § 15-6-77 (g) (12).

One of the established functions of a notice of appeal is to tell the clerk of the trial court whether to wait for transcripts. That function is even more important under this new procedure. The appellate record will now be coming to the appellate courts from two different places. This creates potential for confusion. The notice of appeal should specifically identify any and all transcripts to be included in the appellate record. If any of those transcripts have already been filed, the notice of appeal should point that out.

Step Two – Designation. The rules contemplate a single record appendix, prepared after consultation between the parties. Along with the service copy of the notice of appeal, the appellant is to serve the appellee with a designation of the parts of the record to be included in the record appendix. The appellee then has 15 days to serve a designation of additional parts.

The rules go on to admonish parties not to “engage in unnecessary designation of parts of the record.” And there is an existing procedure for shifting costs to an appellee who designates unnecessary parts. Jacques v. Murray, 290 Ga.App. 334 (2), 336, 659 S.E.2d 643, 645 (2008). But as those costs will now be competitive commercial rates, it will rarely make sense to invoke that procedure.

Any disputes as to correctness of the record must be resolved by the trial court. Again there is an existing procedure. O.C.G.A. § 5-6-41 (f).

Step Three – Appendix. The appendix itself must be “transmitted” to the clerk of the appellate court within 5 days after the transcript is filed with the trial-court clerk. The Supreme Court has announced that, for this purpose, “transmitted” is synonymous with “filed” as the latter term is defined in Supreme Court Rule 13. If no transcript is filed, the appendix must be transmitted to the appellate court within 30 days after the notice of appeal is filed. Note that there is no provision granting appellants the longer of the two periods: a prompt court reporter will compel an appellant to act promptly. Similarly, if the transcript was filed before the notice of appeal, the appellant should comply with the five-day deadline.

These rules have been adapted from the existing statutory deadlines for records prepared by trial-court clerks. O.C.G.A. § 5-6-43 (b). Of course for the trial-court clerks, those deadlines have been largely toothless.

Rule 69 specifies the contents of the appendix and the sequence in which those materials are to appear. The Supreme Court has announced that all documents should be file-stamped. As service copies are often not file stamped, this is a significant logistical challenge.

First, Rule 69 (a) requires an index. The index is to include page references and dates of filing. The Supreme Court has posted a sample index.In order to supply the required page references, it is necessary to Bates-stamp the pages of the appendix. A Bates stamp is a mechanical device that stamps out consecutive numbers. Its function can be duplicated by features available within Adobe Acrobat and similar software and by professional printers. As to dates of filing, note that there will often be logistical challenges, as service copies are often not file-stamped.

Rule 69 (b) provides that the first item after the index is to be the notice of appeal.

Subpart (c) requires other items in chronological order. It would be wise to include everything that would have been designated for inclusion in a traditional appellate record. Note that, in the context of the applications for discretionary appeal, where file-stamped copies are not generally required, the appellate courts do require file-stamped copies of the order to be appealed. Supreme Court Rule 33; Court of Appeals 31 (e).

Subpart (d) requires a statement of correctness in specified language:

I, the undersigned attorney of record in the above-styled case, a member of the State Bar of Georgia and the Supreme Court of Georgia in good standing, do make this certificate as required by the Rules of the Supreme Court of Georgia. I hereby certify that I am familiar with the trial court record in this case, and that this appendix contains only parts of the record on file in the trial court.
This the _____ day of ___________, 20__.
(signature and Bar number)

The statement of correctness is a substitute for the clerk’s certification of the record. The specified language affirms only that that the appendix “contains only parts of the record on file in the trial court.” But an attorney signing such a certificate should understand that is an invocation of the duty of candor to the courts. A pro se party’s statement must be under oath.

An additional statement of correctness is required for each volume of the appendix. Each volume should be approximately 250 to 300 pages, small enough that it is not necessary to disassemble the document in order to read the top line of any page. For the same reason, the rules of the Supreme Court prohibit metal fasteners, such as binder clips and Acco fasteners “which cover the top center” of the document. Supreme Court Rule 68. The Court of Appeals prefers round-head fasteners. The fasteners should be long enough to assure that the appendix will not fall apart while being read.

Crisis Averted: Court of Appeals Acts to Restore Access to Appellate Courts

2010-06-09T09:24:00.000-07:00

The Court of Appeals has now incorporated into its rules the Supreme Court rule that circumvents the $10/page charge. The Supreme Court rule, which is adapted from a bar proposal I drafted, allows party-created records. The rule adopted by the Court of Appeals is even more important than the one adopted by the Supreme Court, because most appeals go first to the Court of Appeals.

The rule adopted by the Court of Appeals provides, “Notwithstanding anything to the contrary in these rules, this Court will accept for consideration on the merits of any appeal any record or substitute therefor which the Supreme Court of Georgia accepts under its rules.”

The Court of Appeals acted in the nick of time. The first cost bills under the new statute are coming due now.

These rules are not defiance of the legislature. On the contrary, several leaders of the General Assembly, acknowledging their mistake in passing the $10/page fee, urged the appellate courts to adopt such rules. According to the AJC, Rep. Wendell Willard (R-Sandy Springs), chair of the house Judiciary Committee, acknowledged the legislature’s mistake and described the Supreme Court rule as “a great solution” that “could be a permanent one.”

The Proper Role of Judicial Philosophy

2010-06-07T10:44:00.000-07:00

There is a good discussion of the proper role of judicial philosophy in Cornell Law Professor Michael Dorf’s online column for Findlaw. Professor Dorf focuses on legislative history, defending it against the charge that it "is uniquely subject to abuse, and thus categorically irrelevant." He argues that "any interpretive methodology can be abused" and that, while some judges may use legislative history self-servingly, it is at least possible that some will use it "in an honest effort to figure out what Congress was attempting to accomplish."

I agree. The duty of a judge faced with a question of statutory interpretation is to make an honest effort to figure out what the legislature was trying to accomplish. A judge determined to make that honest effort may find interpretive methodologies helpful and may derive useful insights from judicial philosophy. But a judge not disposed to self restraint will be able to find in those things justification for preferred outcomes.

(Professor Dorf concludes with a few paragraphs of speculation about the underlying motives of "liberal" and "conservative" judges. While that speculation is interesting, I do not endorse it.)

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

2010-06-03T10:20:00.000-07:00

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.

Clerk and Court Administrator of Court of Appeals Announces Retirement

2010-06-02T13:34:00.000-07:00

The Clerk and Court Administrator of the Court of Appeals, Bill Martin, has announced his retirement effective August 1st. I’ve known Bill since he came to the court 16 years ago, and I am sorry he is leaving.

He has done a magnificent job. Whatever other advice I’ve given over those 16 years when consulted about unusual problems in practice before the Court of Appeals, I’ve always suggested calling Bill. Without fail, he has been courteous, knowledgeable and energetically helpful.

Even in retirement, Bill appears to have put the Court’s interests ahead of his own. The Court faces additional steep budget cuts in the next fiscal year. The press release announcing his retirement notes that, apart from the judges, Bill is the court’s highest paid employee. His retirement will make absorbing those cuts easier, but other things more difficult.

Court Rule May Restore Access to Appellate Courts

2010-05-26T07:29:00.000-07:00

I’ve spent much of the past ten days working on a solution to the fee increase that threatens access to the Georgia appellate courts. At the end of this year’s session, the legislature passed bill that increased many of the fees charged by state entities. Among the fees increased was the charge for preparation of appellate records. That fee went from $1.50/page to $10/page. That's $10 for photocopying a single sheet of paper. Appellate record are often hundreds of pages long, sometimes thousands. At $1.50 the fee was already a tax; at $10 it would often be an insurmountable barrier.

In my last post, I argued that the appellate courts could implement a meaningful short-term solution through their rule-making power. Since then I’ve been heading up a team that drafted a proposed rule. State Bar President Bryan Cavan presented the proposed rule to the appellate courts earlier this week. I am hopeful that the crisis will shortly be averted.

Legislature’s Mistake Cuts Off Access to Appellate Courts

2010-05-13T11:11:00.000-07:00

Access to the Georgia appellate courts became a great deal more difficult yesterday when the governor signed House Bill 1055. The bill's purpose was to modernized the various fees charged by the state. Many of those fees had not been updated in decades. Some had become less than the cost of the service, amounting to an unwarranted taxpayer subsidy.

But one of those fee increases was a grave mistake. The cost of preparing an appellate record increased from $1.50 per page to $10 per page. Appellate records can easily contain hundreds, sometimes thousands of pages.

The former $1.50 per page charge did not amount to a subsidy. It was already a tax. The charge was $1.50 for photocopying a single piece of paper. Private businesses charging competitive rates would charge much less.

And at $1.50 it was an unfair tax. Individuals and small businesses who feel compelled to appeal are often already facing financial catastrophe. The prospective clients I counsel often face the prospect of liquidating retirement accounts or re-mortgaging a home. But at $1.50 a page, the additional cost of the record, while substantial, was still small relative to the total cost of the appeal. Now the cost of the record will often be crushing, if not prohibitive.

I do not, of course, have any idea who inserted the $10 per page fee or why. But it is safe to say that it was a mistake on the part of the responsible legislators and lobbyists who let it slip through. The trouble with a legislature that can meet for only 40 days a year is that it is easy for such things to slip in on the 40th day and extraordinarily difficult for such things to be remedied until the following year.

The difficulty with finding an interim solution is that Georgia’s Appellate Practice Act is pretty specific as to preparation of the appellate record. The authorized alternatives to photocopies prepared by the trial-court clerk require consent of the opposing party or the active participation of the trial judge.

The appellate courts clearly have some ability to mitigate the harm that will be done by this excessive fee. They can and should pull back on some of the holdings that push appellants to err on the side of inclusion. But that would be an improvement at the margins.

Ultimately this is a short-term problem. Technology will eventually solve it. More and more trial-court clerks are scanning documents as they receive them. Campaigning around the state, I have spoken to a number of them who look forward to transmitting appellate records with the push of a button.

But it is a severe short-term problem. It is analogous to a problem the doctor’s lobby created a number of years ago. Overreaching in the perennial turf battle among the medical professions, they pushed through a bill that forbade nurses from giving injections. The bill was not unconstitutional, just stupid. But the interested parties all went to court and jointly asked that it be held unconstitutional. The legislation was fixed at the next session

The appellate courts have the raw power to implement a meaningful short-term solution through their rule making power. There are a variety of things they could do. For example, they could adapt the application-for-discretionary-appeal procedure, in which the appellant copies and transmits the relevant parts of the record. But the courts are appropriately reluctant to implement rules that invade the province of the legislature.

So it is up to the members of the General Assembly to address that reluctance. The legislature is not scheduled to meet again until 2011. But in the interim individual legislators can and should publicly acknowledge that this was a mistake and encourage the courts to exercise their rule-making authority more aggressively than would otherwise be appropriate.

UPDATE: May 14, 2010

Majority Whip Ed Lindsey’s proposed solution

Rep. Ed Lindsey addressed the new $10/page fee for appellate records at this morning’s meeting of the Litigation Section of the Atlanta Bar Association. He explained that the legislation contemplates that the parties will be able avoid the $10/page fee by preparing their own record. He said that the courts should use their rule-making authority to implement such a procedure. When I asked whether the statute is really susceptible to that interpretation or whether the language he relies upon was intended to refer to transcripts only, he asserted that the statute at least allows sufficient “wiggle room” to authorized such a rule.

It says here that Rep. Lindsey’s legal analysis is entirely persuasive. The courts should move immediately to implement such rules and the bar should encourage them to do so.

Proposal to Expand the Georgia Appellate Courts

2010-02-23T16:36:00.000-08:00

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

Remembering Judge Ruffin

2010-02-10T21:49:00.000-08:00

The Honorable John H. “Jack” Ruffin, former chief judge of the Georgia Court of Appeals, died on Friday. He was 75. It was too soon. He declined to seek reelection in 2008 since Georgia law compelled him to retire before his 75th birthday. The last time I saw him, he said he was thinking about running again in 2010. He was only half joking. Judge Ruffin was remarkably unpretentious and good humored. Once, I published a letter to the editor criticizing one of his decisions. The next time he saw me, he smiled graciously and made a self-deprecating remark.

As a practicing lawyer, he was an activist, a genuine hero of the civil rights movement. But as an appellate judge, he had no discernible agenda, except to follow the law faithfully.

Before the funeral the following morning, we attended his wake at the Tabernacle Baptist Church in Augusta. In lieu of flowers, Judge Ruffin's family asks for contributions to Morehouse College or to any other charity of the giver's choice.

I have known the judge since 1994, shortly after his appointment to the Court of Appeals. In 2002, he wrote the introduction to the second edition of the Georgia appellate practice book I authored. I knew him as a good and impartial appellate judge, with a penchant for deadpan humor. And I knew that he had played a role in desegregating the Augusta school system.

I had not fully appreciated the size of the shoes I sought to fill when I ran to succeed him in 2008 after he announced his retirement. The realization was humbling. Stacey Eidson of the Augusta Metro Spirit has written the best description I’ve seen of his contribution to the civil rights movement."Courage. That’s what defines a man. Courage to stand up against something that is unjust. This week Augusta lost a great man of courage."

It always takes courage to right wrongs in this world. Judge Ruffing did so unfailingly and set an example for the rest of us.

--
Christopher J. McFadden

Candidate for Judge, Court of Appeals of Georgia in 2010
...he wrote the book on Georgia appeals!

UPDATED: Judge John Ruffin, Jr. Dies | WJBF

2010-02-10T21:33:00.000-08:00

UPDATED: Judge John Ruffin, Jr. Dies | WJBF

People all across the region are mourning the death of a pioneering judge. Late Friday night, around 10:30 p.m., retired Judge John Ruffin Jr. passed away. We’re told he was at his home in Atlanta when he fell. Fulton County investigators say he was alert when EMS arrived, but later died at Piedmont Hospital. Judge Ruffin was 75-years-old and a leader to many. WJBF News Channel 6’s Barclay Bishop talked with a few who remember him for all that he did while serving on the bench. UPDATE: WJBF News Channel 6 has learned that autopsy reults showed that Judge ruffin died of heart disease, not a heart attack. The Fulton County investigators tell us that Judge ruffin’s fall had nothing to do with his death. The fall and his death just coincidentally happened at the same time.

By BARCLAY BISHOP | WJBF News Channel 6 Anchor/Reporter
Published: January 31, 2010

***3:50 p.m. Update January 31***

WJBF News Channel 6 has learned that autopsy reults showed that Judge ruffin died of heart disease, not a heart attack. The Fulton County investigators tell us that Judge ruffin’s fall had nothing to do with his death. The fall and his death just coincidentally happened at the same time.

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Augusta, GA—Ed Tarver, U.S. Attorney: “Jack Ruffin was extremely important to this community, that was one of the things that came to mind. And, I was shocked to hear that we had lost him. And, it was certainly unexpected.“

Judge John Ruffin Jr., known as Jack, to his friends, was a pioneer. He was Augusta’s first black Superior Court judge, the first black Court of Appeals judge, and the first black member of the Augusta Bar Association.

Tarver: “The issue that I think that would describe Judge Ruffin is that he fought for fairness and everyone to be treated the same. Without regard to how they looked, to who their parents were, to what color their skin was, and that’s a huge mission for someone who was born and raised in Burke County, Georgia.“

Ed Tarver, who just took over as the new US Attorney for the Southern District of Georgia, says Judge Ruffin played an instrumental part in his professional career.

Tarver: “He was always there for me to give me guidance and to help me through some of the tough issues I encountered. And, to tell me when I was going in the wrong direction, so I appreciated him and look to him more as a parental figure than a friend.“

Last year, after back and forth debate…Augusta Commissioners decided to name the new judicial center after Judge Ruffin. Commissioner Joe Bowles was the swing vote:

Joe Bowles, District 3 Commissioner: “He called me the next day and said, ‘I never would have dreamt this in my life.‘ And I’m just honored and thrilled that we took action that day.“

Judge Ruffin will be sorely missed by many in the CSRA. He spent much of his life fighting for equality, and the legacy he leaves behind proves it.

Bowles: “Besides all of the harsh treatment he received, he never once retaliated, and he was nothing but an honorable, and reputable man.“

Tarver: “We want to celebrate what he meant to us, and make sure that we are going to do everything that we can to continue his legacy.“

We’re still waiting on autopsy results, but we’re told he didn’t have any sort of health problems. Until the day of his death, Judge Ruffin has been a visiting professor for Morehouse College. The funeral is tentatively set for Saturday, February 6th. at Tabernacle Baptist Church.

Press Release: Court of Appeals Candidate Advocates Ballot Order Rotation

2010-01-14T17:13:00.000-08:00

Press Release: Court of Appeals Candidate Advocates Ballot Order Rotation

For Immediate Release.

ATLANTA, January 9, 2010 – Chris McFadden, a candidate for an open seat on the Court of Appeals of Georgia, argued yesterday in support of proposed legislation that would change the way candidates are listed on Georgia ballots. The proposed legislation, which McFadden drafted, would rotate the order in which candidates are listed on electronic voting machines. Under current law, they are listed alphabetically.

"Almost every day, and usually several times a day," reported McFadden, "I’m told I should change my name to Adams or Aardvark."

McFadden, who resides in Griffin, was speaking at the midyear meeting of the State Bar of Georgia to its Committee on the Judiciary, of which he is a long-time member.

State Representative Mary Margaret Oliver (D-Decatur), also a member of the bar committee, spoke in support of the proposed legislation and announced that that she will introduce it.

"Dozens of people have recounted to me the story of a race for an open seat on the Supreme Court in the 1980s," reported McFadden. "The candidate generally agreed to be least qualified was first alphabetically and first on the ballot. While the other candidates campaigned vigorously, he went on vacation. And he won." McFadden provided the committee with summaries of numerous studies confirming that the ballot position advantage is real.

McFadden has been an appellate lawyer for more than twenty years and is first author of Georgia Appellate Practice, a reference book published by the West Group, the nation’s leading law book publisher. In 2008 McFadden placed fourth in a field of seven candidates vying to succeed retiring Judge Jack Ruffin on the Georgia Court of Appeals.

"After the 2008 election, a lawyer I hardly knew, who wishes to remain anonymous, approached me and offered his analysis of the election results," reported McFadden. "His written report argues that the deciding factors in the 2008 Court of Appeals election were ballot position and perceived race."

According to the report, an advantage of approximately 20 percentage points was divided between the first two candidates on the ballot: the eventual winner, now-Judge Sara Doyle, and Tamela Adkins, who placed third, directly ahead of McFadden. Adkins, who is white, performed best in counties with large African-American populations. (The candidate who placed second, Mike Sheffield, had run in 2004 and was backed by religious conservative interest groups.) Adkins, who had never argued in the Georgia appellate courts prior to the 2008 election, "used to hire me when she had appellate matters," said McFadden. "She told me last month that she plans to run again in 2010, this time using her middle name, Lynn."

The ideal way to construct ballots, McFadden explained, would be to randomly determine the order in which candidates are listed on each ballot. But even on electronic voting machines, randomizing the order turns out to be technically impractical. The proposed legislation would accommodate that technical impracticality by adopting the less-perfect solution of rotating the order from ballot to ballot. The proposal would accommodate the financial impracticality of rotating printed ballots by adopting the even less-perfect solution of rotating only the electronic ballots. The proposal would mitigate that second compromise by selecting the order in which candidates are listed by lot, rather than listing them alphabetically.

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For more information, please contact

The Committee to Elect Chris McFadden, Judge, Georgia Court of Appeals

Suite 800, Commerce Plaza
755 Commerce Drive
Decatur, Georgia 30030
404/601-4121
(fax) 404/601-4133