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Articles Posted in Appellate Law

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We received some sad news this Thanksgiving weekend about a dear friend.  Justice George Carley had died.

Many tributes are now coming in about Justice Carley. One, from Judge William Ray, (U.S.D.C.,Northern District of Georgia) touched me and let me know we had similar relationships with Justice Carley. The Georgia Supreme Court, from which he retired, also paid tribute to him and I urge you to watch it.  These tributes reminded me of my relationship with Justice Carley that I now share with you in memory of him.

Justice Carley was a proud “Double Dawg,” meaning he graduated from both undergraduate school and law school at The University of Georgia, often referred to as just “The University,” as if there were no others.  He is the only person to have served as both Presiding Judge and Chief Judge of the Georgia Court of Appeals, and the Presiding Judge and Chief Judge of the Supreme Court of Georgia.

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Friends:

I am happy to share with you that I have recently begun co-hosting a podcast called “See You In Court.” “See You In Court” is a podcast sponsored by the Georgia Civil Justice Foundation, on which I sit as a Board Member.  My co-host is Lester Tate, partner and owner of the law firm Akin & Tate in Cartersville, Georgia.  Lester is also, as I am, a Past President of the State Bar of Georgia and is also a Board Member of the Georgia Civil Justice Foundation.

“See You In Court” podcast is a joint project of the Georgia Civil Justice Foundation and the Georgia Institute of Technology School of Literature, Media and Communication. The Georgia Civil Justice System is a nonprofit foundation whose mission is to educate the public about the Georgia Civil Justice System and its value to the public in enforcing rights and holding negligent actors accountable for injuries they have caused.  The Georgia Institute of Technology School of  Literature, Media and Communication defines new models of intellectual inquiry and practice that bring diverse humanistic perspectives to bear on technological invention and innovation.  The School’s mission is to lead the region, the nation, and the world in researching and teaching the ways the humanities shape and are shaped by science and technology. Understanding technologies in their cultural contexts is fundamental to invention and innovation. The School’s diverse faculty and students assess and inform technological and scientific change by creating, analyzing, and critiquing a broad range of media forms and cultural practices.

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I am struck today by the decision of the Wisconsin Supreme Court yesterday to rule that the Governor and the head of its Public Health Department did not have the authority to issue stay-at-home mandates during the Covid-19 pandemic. As the Governor of Wisconsin said, Wisconsin is now the “wild, wild west.” Chaos has already ensued in the less than 24 hours since the ruling, as predicted by Governor Tony Evers. Bars were packed last night in Wisconsin, with absolutely no social distancing (from the photos it looks like no distancing at all) and no masks being worn. World-leading scientists and epidemiologists predict this will necessarily cause a spike in Covid-19 cases and unnecessary suffering and deaths.

The first thing to note of this decision is that the case was brought by Republican Wisconsin Legislators against the Governor, so that essentially the Legislators were suing saying a bill they had passed was unconstitutional. Wait. What? How is that possible? They passed it. Surely, they can’t now file suit claiming the very thing they wrote, voted on and passed was actually unconstitutional from the get go. This turns the legislative process on its head.

The second thing to note is that this was a decision that ran along party lines in a very politicized state supreme court. The Wisconsin Supreme Court’s conservative-backed majority split in the 4-3 decision, with Chief Justice Patience Roggensack, Justice Daniel Kelly, who recently lost his bid for election, Justice Annette Ziegler, and Justice Rebecca Bradley voting to overturn Palm’s order. Conservative-backed Justice Brian Hagedorn joined the court’s two liberal-backed members, Justice Ann Walsh Bradley and Justice Rebecca Dallet, in dissent.  You may remember that Justice Kelly, a Republican, recently ran for reelection as a Republican and even had the President of the United States come to Wisconsin and campaign for him in a unabashed political statement. Justice Kelly lost to a Democrat, Jill Karofsky but, alas, that Democrat hasn’t taken her seat on the bench yet. Otherwise, there is no question this decision would have come out the other way given the fact that even one Conservative justice sided with the dissenters. This recent election, you may recall, was another politicized decision by the Wisconsin Supreme Court as it ruled that the election in April, during the height of the Coronvirus crisis, had to proceed as originally scheduled and that Wisconsin citizens had to vote in person. Undoubtedly, the Republican members of the Supreme Court thought this would hold voting down as surely folks wouldn’t want to risk their lives voting, of all things But surprise! It didn’t work, and the Liberal Democratic candidate beat the Republican candidate who POTUS personally endorsed. Karofsky credited her win to voters rising up and rejecting Republican efforts to suppress turnout. “People were willing to do that because they wanted their voices to be heard in this election,” she said. “A lot of times on election day we’re wringing our hands because we’re so upset about voter apathy. That wasn’t the problem on Tuesday. People wanted their voices heard.”

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Friends:

To say we are experiencing unprecedented times with the global pandemic of Coronavirus-COVID-19 would be a massive understatement. I hope you and your family are well, staying safe and healthy and weathering this storm. I am continuing working on all of my cases to the maximum extent I can at my home. With remote work capability, super high-speed internet and my case management system “in the Cloud,” I can work on any case from any location. I want to let you know how our Georgia Civil and Criminal Justice Systems are adapting to this season we find ourselves in and keep you up to date on all things legal in Georgia right now.

First, the Chief Justice of the Georgia Supreme Court Harold Melton has issued a Statewide Judicial Emergency Order through 11:59 a.m April 13, 2020.  I believe Chief Justice Melton has shown great leadership with the issuance of this Order and through it, is doing the Court’s part in not spreading the virus in our courtrooms and alleviating much anxiety among litigants and lawyers.

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Today marked the last day on the job for Justice Robert Benham. That “job” being no less than serving on the state’s highest court, the Supreme Court of Georgia. A true pioneer, he was the second African-American graduate of UGA law school and the first to serve on the Georgia Supreme Court. He is retiring after 36 years on the appellate Courts (5 on Georgia Court of Appeals and 31 on Supreme Court). Appointed by Gov. Joe Frank Harris in December 1989, he was the first African-American ever appointed to the Supreme Court in its more than 140 years.  He  served in the United States Army Reserve attaining the rank of captain, and served as a trial attorney with Atlanta Legal Aid among many other professional accomplishments.  A lifelong resident of Georgia, Justice Benham was born to Jesse Knox Benham and Clarence Benham in Cartersville, Georgia. He obtained a B.S. in Political Science from Tuskegee University in 1967 and also attended Harvard University. In 1970 he obtained his Juris Doctor from the University of Georgia, Lumpkin School of Law. He obtained Master of Laws degree from the University of Virginia in 1989.

As a tribute to Justice Benham, I am sharing my remarks from the 2013 Justice Robert Benham Community Service Awards.  Prompted by concerns about the decreasing number of lawyers in leadership positions in public and community service, then Chief Justice Robert Benham in 1996 created a Community Service Task Force under the auspices of the Commission on Professionalism.  Composed of leaders of the bench and bar in Georgia, the Task Force determined to encourage, support, and recognize within the profession the tradition that all lawyers perform community service and measure their success in ways other than just financial gain.  To accomplish its purpose, the Task Force created the Justice Robert Benham Annual Awards for Community Service in partnership with the State Bar to honor lawyers and judges from the ten judicial districts of Georgia who have made outstanding contributions in the area of community service.  Since 1998, the Commission has coordinated the selection and presentation of these Awards.

Justice Benham, to say you will be missed on the bench is an understatement. I will always think of you with great love and admiration.  You are the ultimate role model for any lawyer.  The hallmarks of your career and life are integrity, kindness, compassion for others and  wisdom. You deserve only the best in your retirement. Godspeed!

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I was struck this week with an opinion of the Georgia Court of Appeals in what is probably a very rare scenario:  where the defendant has already served his entire sentence but the Court exercises jurisdiction to hear the appeal anyway. I would be curious to know how often that happens. My guess is almost never. So the scenario grabbed my attention since it is probably so rare.  And you might be asking “What’s the point?” if the defendant is already out of prison anyway. Well, the Court answers “what’s the point” succinctly by saying Justice is the point. Justice is the point.

The case I am talking about is Denson v. State, A19A2307, 2020 WL 255433 (Ga. Ct. App. Jan. 17, 2020), authored by Judge Yvette Miller and concurred by Judge Rickman and Judge Reese.  I commend it to your reading. It is a doozy.  In this criminal appeal, the trial court did not hear the convicted defendant’s motion for new trial (that had ben timely filed in 2007) until 9 years after it had been filed, and the Georgia Court of Appeals did not resolve the defendant’s direct appeal until 13 years after the original conviction of defendant and after the defendant had served his entire sentence.  Wait. What?

That’s right. And the Georgia Court of Appeals made it clear it would ignore the mootness of the their review, since the Defendant had already served his unjustly imposed sentence, to issue a warning to Georgia trial courts of the grave injusctice they may be doing to otherwise innocent criminal defendants.  Whew.  Like I said, it’s a doozy.

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Recently, there have been a couple of criminal cases heard by the Georgia Supreme Court which have involved the trial judge’s inherent duty to be the final arbiter of fairness and justice in the courtroom. Sometime this is referred to as the “13th Juror,” because the trial judge sometimes must base her or his ultimate decision on the facts, testimony and documentary evidence presented at trial…things an appellate court would not be in a position to know.  A recent  discussion about the notion of the trial judge as 13th juror came in an appeal of a criminal case, State v. Hamilton, 832 S.E.2d 836  (Ga. Sup. Ct. September 3, 2019) in which the Georgia Supreme Court heard oral argument on the issue of whether the trial judge was authorized to  toss out three counts of assault when that the jury had convicted the defendant on, in the judge’s opinion, there was no way factually or legally for those three counts to be proven beyond a reasonable doubt.  The Court affirmed the trial court’s granting of a new trial.  “Having reviewed the entire record, and considering that the trial court was authorized, as the thirteenth juror, to discount Taylor’s and Hewatt’s testimony and to credit Hamilton’s story, and bearing in mind the standard of review set forth in OCGA § 5-5-50, we cannot say that the trial court’s conclusion was an abuse of its substantial discretion to grant Hamilton a new trial. See Hamilton, 299 Ga. at 670-671, 791 S.E.2d 51 (“An appellate court will not disturb the first grant of a new trial based on the general grounds unless the trial court abused its discretion in granting it and the law and the facts demand the verdict rendered.”).”

In another case recently argued before the Georgia Supreme Court, the Court told the Fulton County D.A., who was appealing a trial judge’s granting of a new trial, that the D.A. was “wasting the Court’s time” with such an appeal when the trial judge clearly has the power, right and, arguably, the duty, to grant a new trial. In that case, State v. Beard, NO. S19A0535 (Ga. Sup. Ct. October 31, 2019) quoted below, the Supreme Court’s opinion called the D.A.’s position “bizarre.”  “Contrary to the State’s bizarre argument, the jury’s verdict was not demanded by the “great physical laws of the universe.” (“An appellate court will not disturb the first grant of a new trial based on the general grounds unless the trial court abused its discretion in granting it and the law and the facts demand the verdict rendered.”).’

State v. Beard, S19A0535, 2019 WL 5656338, at 4 (Ga. Oct. 31, 2019). Since then, the Fulton County D.A.  dismissed its appeal and has vowed to take his argument to the Georgia Legislature in an attempt to get legislation passed that will eliminate this inherent duty and power of the trial judge.

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There have been two  recent appellate decisions in Georgia that address the morass that is apportionment:  FDIC v. Loudermilk, No. S18Q1233 (Ga. S. Ct. March 13, 2019) and Trabue v. Atlanta  Women’s Specialists, LLC, No. A18A1508 (Ga. Ct. App. March 7, 2019).   Since the Georgia Legislature passed a new scheme of how a plaintiff receives justice in our Civil Justice System some 14 years ago, called “apportionment,” there have been 1,328 Georgia appellate opinions that mention apportionment. This suggests that the law as passed was anything but a model of clarity.
The Georgia Supreme Court’s opinion in FDIC v. Loudermilk reminds me of Mark Twain’s quotation:  “The rumors of my death have been greatly exaggerated.” I believe the rumors of the death of joint and several liability have been greatly exaggerated, ever since its passage in 2005.  Loudermilk makes it clear that joint and several liability is alive and kicking and coexists peacefully right next to apportionment.  Loudermilk, authored by Justice Sarah Warren,  involved a claim against a group of bank directors alleging that the former directors and officers were negligent and grossly negligent under Georgia law for their approval of ten commercial real-estate loans.  This case was tried to a jury in the Northern District of Georgia and the jury rendered a $5 Million verdict against the individual former bank officers. The bank officers appealed the verdict to the 11th Circuit Court of Appeals, which certified the question of whether the Georgia law of apportionment applied to this scenario to the Georgia Supreme Court. The Georgia Supreme Court answered no, that the statute did not end joint and several liability for co-defendants determined to have acted “in concert.”  The Court held “Georgia historically has recognized this principle: “[i]t has always been true that where concert of action appears, a joint tortfeasor relation is presented and all joint tortfeasors are jointly and severally liable for the full amount of plaintiff’s damage.” Gilson v. Mitchell, 131 Ga. App. 321, 324, 205 S.E.2d 421 (1974), aff’d, 233 Ga. 453, 454, 211 S.E.2d 744 (1975) (“We conclude that the opinion of the Court of Appeals correctly states the law of Georgia on this subject and we adopt [its] opinion.”). Cf. City of Atlanta v. Cherry, 84 Ga. App. 728, 731-733, (67 S.E.2d 317) (1951) (rejecting joint-tortfeasor status although plaintiff alleged that defendants acted in concert because plaintiff failed to allege adequately that there was “concerted action in operating [an airport runway] in such a way as to injure plaintiff”).”  Fed. Deposit Ins. Corp. v. Loudermilk, S18Q1233, 2019 WL 1303652, at *8 (Ga. Mar. 13, 2019).
This rule supports what many plaintiff’s lawyers have been saying since 2005, i.e., that there is no apportionment until a jury says there is apportionment. Thus, not only apportionment but also joint and several liability charges must be given to a jury and counsel must be allowed to argue joint and several liability.

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Some recent headlines about trial judges behaving badly and a recent bad experience I personally experienced at trial last week have me thinking about this:  what should you expect from a trial judge?  Competency?  Fairness?  Mercy?  Understanding? Knowledge of the rules of evidence? Impartiality? Experience? Ability to stay awake during the trial? Maybe all of the above?

I only half-jokingly included in the desired traits list above the ability to stay awake on the bench.  Just this week an Illinois appellate court ruled that the fact that the trial judge slept through some of a murder trial did not automatically result in a reversal of the conviction or warrant a new trial.  That sleeping jurist claimed he had not actually fallen asleep but was simply resting his eyes. “If I was not looking at the video, that does not mean that I was not listening and hearing everything that was being said,” said O’Connor, who called the motion “disgusting,” according to a transcript cited in the appellate ruling.  So Justice may be blind but it doesn’t have to be awake?

The question of what should we expect in a trial judge also has been hotly debated this week when the Senate Judiciary Committee approved a judicial appointee of POTUS for a Federal trial bench opening in Alabama. The reason for the outrage among lawyers about the judicial nominee is the fact that he is only 36 years old, has never tried a case and has practiced law for only 3 years. Many have called him “clearly unqualified” to take the trial bench and that his appointment is “laughable”. He has literally never tried a case!  Can’t we all agree that to be able to preside competently over a trial by jury, make life-changing decisions of what evidence gets in and what evidence doesn’t, decide whether a litigant receives a constitutionally protected fair trial, that the trial judge should at least have tried a case before?

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