Georgia Court of Appeals - Scott Key & Associates

Two Georgia Appeals Seats Headed to a Runoff

November 3, 2010/by J. Scott Key

There will be two run-offs for Georgia appellate seats. Justice David Nahmias, who was appointed to finish the term of Justice Leah Sears, won 48.2% of the votes. He will be in a run-off against Tammy Lynn Adkins, who achieved 35.2% of the vote in spite of the fact that she did not run a campaign. Justice Nahmias’s more vocal opponent, Matt Wilson, was able to eek out only 16.6% of the votes. Mr. Wilson ran an aggressive campaign, where he attempted to cast Justice Nahmias as a bureaucrat and Washington insider with little regard for individual rights. It will be interesting to see if Ms. Adkins begins campaigning in the upcoming run-off election or if not running a campaign will continue to pay-off

Campaigning has had an impact in the race for the Georgia Court of Appeals, also headed for a runoff. Antoinette “Toni” Davis garnered 25.5 percent of the votes to Chris McFadden’s 22.6%. Election results are available on the Georgia Secretary of State’s website. Mr. McFadden was endorsed as most qualified by Georgia lawyers polled by the State Bar of Georgia. Ms. Davis picked up key endorsements by two Georgia newspapers and several prominent judges and other office holders in Georgia.

Why Appellate Judges Should be Appointed and Not Elected

September 10, 2010/by J. Scott Key

at the New York Times website is disturbing. She cites a recent Pew Research Center poll where people were asked the current chief justice of the United States. To make the result even more disquiting, the test was multiple choice. And here were the choices:

John Roberts
Thurgood Marshall
John Paul Stevens
Harry Reid

53% of those polled had no idea. 28% chose John Roberts. Thurgood Marshall came in second. That is the result from a poll where the alternatives to Roberts were fairly ridiculous. What’s more, that is the result of a poll involving the United States Supreme Court, which is ever in the public eye.

Now, let’s think about the current election for the Georgia Court of Appeals. Unless you work in the legal profession, have a case where an appeal is pending or is likely, or are a total news hound, you don’t hear much about the Court of Appeals. Yet, when you vote in November, you will have your choice of six possible candidates. The average voter will know as much about those candidates as I know about the choices for public service commission (I vote against anyone, by the way, who has a nickname that makes it onto the ballot in quotation marks. If you go by “buddy” or “skeeter” on the ballot, I’m not voting for you. The PSC race seems to attract people with nicknames)

Often, friends and family will ask me whom I would recommend for appellate seats and choices for other contested judicial elections. Perhaps others in Georgia ask lawyer friends to recommend a choice. But many will not.

Yet, the office of judge is such an important one and hopefully will continue to be in Georgia. Here is the point where I could switch to Public Service Announcement mode and talk about the need for voters to refrain from voting in races where they do not understand who the candidates are. But, instead, I am going to sound undemocratic and maybe snobby. People aren’t going to suddenly start researching judicial candidates.

Which is why I don’t think these decisions should be made by voters. At least initially. I believe an appointment system for open seats and perhaps either a retention election or an election against an incumbent after terms of 10-15 years would be best.

The current system is, at best, a crap shoot and at worst, favors people who have the good fortune of having a name beginning with the letter “A.” That person appears at the top of the ballot and has a big advantage in an election with multiple candidates.

A few years ago, John Grisham wrote a novel about a contested appellate judicial election where some powerful interests group chose a candidate for office. The groups then poured money into the election and ran it the way a candidacy for a higher profile office would be run. They got their guy elected easily.

That fictional story could easily become reality with candidates making “pledges” about what they will do when they get on the bench. Incumbent judges who follow the Constitution into unpopular places could also potentially come under fire.

That is, if the electorate pays attention.

E-filing in the Georgia Court of Appeals versus the Supreme Court

August 26, 2010/by J. Scott Key

I have been E-filing in the Georgia Court of Appeals and the Georgia Supreme Court since both courts started offering it. I can’t tell you enough about how great it is to be able to upload a pdf rather than do all of the other archaic stuff that is involved in paper filing a brief. I’m still pretty amazed that so much of the practice of law involves printing out stuff on bond paper, making a blue million copies, physically taking it to the courthouse to get a stamp on it, then transmitting physical copies of the paper to people. I like Atticus Finch, but I’m not all about filing things the way he did when he filed motions in limine in Mississippi v. Tom Robinson.

In fact, there is one Georgia courthouse that is so anti-technology that even lawyers can’t bring laptops or smartphones into the courthouse. They have big ugly yellow signs at all the entrances warning you not to bring “that kinna stuff in heah.” When I leave there, I always think that the world is going to turn black and white, and I start craving a malted at the drug store soda counter.

So, I am really not whining about the fact that the Supreme Court does it better than the Court of Appeals. I’m just glad that they’re doing it at all.

So, a few weeks in for the Supreme Court and a few monhs in for the Court of Appeals is a good time to compare the two systems.

Instructions — The Supreme Court gets the nod here. Their website includes instructional videos. Granted, they are all in a NOAA weather radio voice. Still, very informative. Over at the Court of Appeals, there aren’t any instructional videos. Sometimes you find out you messed up when you get an email telling you that you messed up.
Range of Stuff You Can File — Again, the Supreme Court gets the nod. You can file things in the Supreme Court that do not have a pre-existing case number. For instance, you can file an interlocutory application or a petition for certiorari. In the Court of Appeals, interlocutory applications still have to be filed in the way they were in the 50s
Integration into Your Practice — Docketing notices and the like are all still snail-mailed to you from the Court of Appeals. In the Supreme Court, once you sign up, you start living in the e-filing world. Docketing notices, orders, notices that opposing counsel has filed something, etc. will start coming to you by email. The Supreme Court has clearly gone all-in on the electronic thing
Filing Fees — Big nod to the Supreme Court. You can mail in your check, thereby bypassing the whole “convenience charge” deal that you get over in the Court of Appeals. Ironically, this part of the Surpeme Court is still old school. But it’s old school in a way that saves you money.

Not complaining about either one. It’s great that e-filing is an option. Just interesting to point out that the Supreme Court wins the e-filing smackdown.

Georgia Court of Appeals to Tack on “Convenience Fee” for E-filing

August 24, 2010/by J. Scott Key

Yesterday, I E-filed two briefs in the Georgia Court of Appeals. At the log in screen I was greeted by a message from the clerk’s office indicating that they are going to tack on a $15.00 “convenience fee” for every case you e-file in the Georgia Court of Appeals, effective September 6.

The explanation offered is that the increase in the filing fee from $80 to $300 in 2009 has resulted in an increase in the “cost of processing the transaction charged by the credit card companies.” They go on to explain that the cost is still cheaper than paying a courier or shipping overnight. I love the honest acknowledgement that lawyers who practice before the Georgia Court of Appeals wait until the last minute.

I’m not mad at the Court (and it really wouldn’t matter if I were.). Submitting something the old fashioned way is a pain in the briefs. The old fashioned way entails buying those backings that you only see when you are sending off a brief or on Law and Order when Jack McCoy gets served with a motion to suppress by this week’s guest actor filling in as this the slimy clueless defense attorney.You don’t have to buy those things anymore, and Law and Order can have the rest of them as far as I am concerned.

Filing the old fashioned way also means spreading a bunch of copies out all over the place and having the staple jam as you try to staple the little packets together. Then you have to use the right ninja force to try to get the next staple to go through while covering up the old staple hole. So, $15 is worth the “convenience.”

When you e-file, you only have to print out the copy for the DA because those guys largely don’t e-file or even email for that matter. But still, e-filing makes things easier.

But I can’t help but notice that criminal appellate attorneys are bearing the burden for the civil bar’s fee increase. Our filings fees are still $80. Why are we paying an increased convenience fee? Also, aren’t we subsidizing the Court’s convenience also. After all, the Court does not have to administer the handling of so much paper as the files are maintained and moved around from judge to judge.

The sad part of all of this is that the judiciary could never explain to the legislature that it should finance e-filing because the amount of money spent in increased credit card fees is more than saved in administrative costs. Such conversation would be lost on the party in power in Georgia, most of whom would like Georgia to have only two branches of government anyway.

Still, it’s $15 worth paying to help yourself and the Court to go paperless, but not with a smile.

Kemp Investigating Qualifications of Georgia Court of Appeals Candidate

August 17, 2010/by J. Scott Key

According to a post by Alyson Palmer at ATLAW Blog, the Secretary of State’s Office is picking up where Atlanta Lawyer Justin Chaney left off. A month ago, Mr. Chaney challenged Adrienne Hunter-Strothers’s candidacy arguing that she had not been a member of the State Bar of Georgia long enough to be a candidate for the Georgia Court of Appeals. Ms. Hunter-Strothers was admitted to the New York Bar in 2002 and to the Georgia Bar in 2005.

At issue is the language in Article VI, Section VII, Paragraph II (a) of the Georgia Constitution that provides, “[a]ppellate … judges shall have been admitted to practice law for seven years.”

Mr. Chaney’s challenge was initially dismissed because it was filed 100 minutes too late, but the Secretary of State is picking up the ball to contemplate running with it.

The controversy turns on an argument that “admitted to practice of law for seven years” includes, by implication, a requirement that the candidate be admitted to practice law in Georgia for seven years.

Stories like this are always interesting because one wonders what the back story is.

The other interesting part of this story is that there does not appear to be an issue. “Admitted to practice of law,” means what it says. From what I see on TV, there are lawyers outside Georgia. The candidate was admitted to practice law over seven years ago. The Constitution does not say admitted to practice law “in Georgia.” She appears to be otherwise qualified.

Unless the Secretary of State adds some language into the Constitution with a Sharpie, this one should be filed in the same category as the Obama is not a U.S. Citizen challenge that people keep forwarding to my email.

Ceremony for Clerk of Georgia Court of Appeals Offers Glimpse into Political Climate

July 29, 2010/by J. Scott Key

These have been difficult days for the judiciary and for the Court of Appeals in particular. There are three openings on the Court and two branches of government that seem to view the court system as an inconvenient hurdle standing in the way of law enforcement. Add to the mix the fact that yesterday was the retirement ceremony for William L. Martin, III, the Clerk and Court Administrator of the Georgia Court of Appeals for almost 20 years. While the ceremony was about the excellent work of Mr. Martin, remarks judges made at his retirement demonstrate that these have been difficult days at the Court.

Yvette Miller, currently the Chief Judge, battled back tears at several points during her presentation. She and several speakers mentioned that there have never been as many open seats on the Court as there are right now.

The governor is about to appoint two judges, and there is an open election for a third. Speaking of the governor, he appeared to be a silent character in yesterday’s events.

In describing Mr. Martin’s contributions to the Court over his tenure, Chief Judge Miller mentioned in particular his contributions over the past year. More particularly, she mentioned their trips together “across the street” to the state capitol where they had to meet with the legislative leadership to try to deal with sharp budget cut. She spoke of how she and Mr. Martin huddled up at her desk to find a way to keep the staff of the Court employed and to ensure the the work of the Court was done in spite of the fact that the House was gutting its budget (“gutting” is my word, not hers). Finally, when she presented Mr. Martin with the gift from the judges, she said in tears, “we all wanted you to have this, including Judge Bernes.”

His most recent great accomplishment was E-filing in the court, which has greatly streamlined the appellate process in that court and has benefitted my practice considerably.

On a more general note, Judge Ellington spoke of how difficult the job of Court of Appeals clerk is. First, the Clerk is the one real point of contact most parties before the Court will have. For the advocate who has a case before the court occasionally and who might not regularly appear for Appellate Section events or Oral Argument, there may never be contact at all with the judges. The Clerk is the public face of the institution.

Judge Ellington went on to discuss the diverse array of difficult people the Clerk must work with, including lawyers, county court clerks, many of whom are hostile to the appellate process, and judges.

Speaking from experience, I found Mr. Martin to be very helpful to me in my early years practicing before Court. He was always quick to return my phone calls, eager to offer advice, and a cheerful voice at the end of the phone when I was knee deep with a brief due. It turns out that he was that person to hundreds of other people who called him about their cases.

At the same time, he was meeting with hostile legislators and a governor who has done more, perhaps to set back the idea of an independent judiciary than anyone in the history of that office.

Justice Carley of the Supreme Court of Georgia presented a gift to Mr. Martin — the decision to give it was the first action that the Court has taken in a while that wasn’t decided by a 4-3 vote.

It was a touching ceremony. It was also a telling ceremony.

Honorable Debra Bernes Dies at 54

July 20, 2010/by J. Scott Key

The Honorable Debra Bernes has died of cancer at the age of 54. Bill Rankin at the Atlanta Journal Constitution has posted an article on her passing and her career. Judge Bernes will be remembered for many things including her illustrious, albeit too short career on the Georgia Court of Appeals.

Before beginning her service on the Georgia Court of Appeals, Judge Bernes was a long time appellate attorney with the Cobb County District Attorney’s Office. After a brief stint in private practice as an appellate lawyer, she ran for an open seat on the Georgia Court of Appeals.

Judge Bernes was elected to her seat after defeating Howard Mead, a candidate who greatly outspent her. Judge Bernes ran a grassroots campaign and won through a recount and a blitz of advertising by her opponent. Most importantly, she ran a clean and ethical campaign for judge. She showed that the high road actually works in statewide elections.

I appeared in front of her for argument many times and wrote many more briefs where she was either on the panel or where she wrote the opinion. She was everything an advocate could ever want in a judge, particularly on the appellate bench. She was intelligent, hard-working, and she had a sense of compassion for the people who appeared in front of her. Above all, she treated you like a professional

Judge Bernes ruled against me much more often and she ruled for me, but every opinion was soundly reasoned, thoroughly researched, and reflected her best effort to apply the law as she believed it to be to the facts of the case. In a year of misconduct in Georgia that has given the judicial branch a black eye, she was a shining example of who a judge could and should be.

Aly Palmer with the Fulton Daily report has also posted an obituary.