Governor Deal’s legacy to the Georgia judicial system
It appears that by time he leaves office at the beginning of 2019, Governor Nathan Deal will have:
- Vastly reformed our criminal justice system;
- Expanded the Supreme Court and Court of Appeals;
- Appointed a majority of the Supreme Court and Court of Appeals;
- Appointed a substantial portion of the state’s Superior Court and State Court trial judges;
- Launched construction of a new landmark Judicial Building near the Capitol building; and
- Facilitated creation of a statewide electronic court filing system.
Fortunately, he will have done all that without harming the civil justice system. Some conservative politicians condemn trial lawyers and are drawn to “tort reform” like moths to a flame, always looking for new ways to rub salt in the wounds of people who have been hurt.
Gov. Deal doesn’t go there. I have been at events where it would have been a cheap applause line to condemn trial lawyers and call for draconian tort reform. He talked about education, economic development, criminal justice reform, transportation infrastructure, etc., never the cheap political drug of “tort reform.” In the spring of 2012, I made a trip to Washington as State Bar president to attend two events honoring Georgia lawyers. Gov. Deal spoke at a Republican National Lawyers Association program at which my friend Randy Evans was presented an award as the “National Republican Lawyer of the Year.” Before a group that included a number of Fox News commentators, Gov. Deal talked with conviction reflecting his own life experience about “the wisdom of a small town trial lawyer.”
The first time I met Nathan Deal about 30 years ago when he was that “small town trial lawyer.” We were at a doctor’s deposition in Habersham County. I was a young insurance defense lawyer and he was representing a plaintiff in a personal injury case. He was cordial, professional and competent in representing his client. Much of his Gainesville law practice involved defense work for insurance companies, as did mine in those days. But like many small town lawyers, he also did other things, including service as Juvenile Court judge. He served as State Senator from the Gainesville area and as Majority Leader before his election to the U.S. House of Representatives.
Nathan and Sandra Deal did a good job raising their children. Their son, Jason Deal, graduated from Furman, my alma mater, and then from UGA Law School. Jason in due course was elected District Attorney and later Superior Court judge in their hometown. As judge, Jason became a leader in the development of Drug Court programs to salvage lives of folks caught up in addiction.
- Criminal Justice Reform.
When Nathan Deal was elected Governor, one of his first priorities was criminal justice reform. At that point I was president-elect of the State Bar of Georgia. Shortly after he was sworn in, my predecessor and I went to meet with him about support for the new Evidence Code that a State Bar task force had developed. Gov. Deal responded positively, then quickly turned the conversation to his plans for a Criminal Justice Reform Council. I told him I had planned to appoint a bar committee on this, but maybe now it wouldn’t be necessary. He responded that I should appoint a strong bar committee on criminal justice reform to complement the work of his Criminal Justice Reform Council.
A couple of months later, his executive counsel called to ask me to serve on that Criminal Justice Reform Council. I told him that I hadn’t handled criminal cases myself since the indictments were written on parchment with a quill pen, but that didn’t matter. I was proud to serve two years on the council as we helped develop legislation that supported drug, DUI and veterans’ court programs, sentencing and probation improvements, chipped away at some of the problems with excessive rates of incarceration and sought to improve the juvenile justice system.
From several close encounters, I can attest that the Governor’s heart and soul have been deeply invested in salvaging lives of nonviolent offenders who are caught up in addiction and mental health problems. He has pursued a methodical, step by step project each year of his tenure, winning consensus for each incremental proposal. I expect the best is yet to come.
- Expansion of Court of Appeals from 12 to 15 judges.
Four years ago, during my year as State Bar president, I had conversations with Gov. Deal’s executive counsel about a lot of things, including his idea of expanding the notoriously overworked Court of Appeals once budget problems growing out of the recession were eased. The state constitution already allowed for up to 15 seats on the Court of Appeals, but only 12 seats had been funded and filled.
In a number of those meetings, the executive counsel repeatedly encouraged me to think about applying for a Court of Appeals seat. In July 2012, the month after I complete my term as bar president, the Judicial Nominating Commission put me on the “short list” for two vacant seats on that court. It was clear that one of those seats had to go to a woman and one to a Superior Court judge, and the only female Superior Court judge on the list withdrew from consideration. In my interview with Gov. Deal, he was most warm and gracious, pointed out that there would be another opening in December due to an upcoming retirement, that I was his kind of guy and I should keep my “powder dry” for the next appointment. Based on that, I deferred my search for new office space and staff. I still believe he was totally sincere in that conversation.
In that brief interval from July to November 2012, I actually believed I would be donning the black robes of an appellate judge. I was working with the Governor’s team in day-long Criminal Justice Reform Council meetings every couple of weeks. When my mom died that fall, they treated me like family.
But in November 2012, Romney lost to Obama and Republican political strategists gained a new interest in diversity. In some campaigns for governors’ offices in other states, they had seen Democratic ads compiling photos of a Republican governor’s appointees who were overwhelming white males.
Within a week after that election, I noticed a subtle change in my interaction with a young lawyer on the Governor’s staff who been quite encouraging to me for months. When the next Court of Appeals appointment came in December 2012, it went to Carla Wong McMillian, a very bright Asian-American woman who was born the month I graduated from college. No political challenger would be able to run that composite photo ad, including me as one of the old white male appointees, against Gov. Deal in 2014.
I like Judge McMillian and think she does a fine job, but I admit that I did have a few adult beverages the night after I got that news. Then I pulled up my socks and started looking for new office space for my law practice. In retrospect, I recognize that when you complete a term as State Bar president at 61, you don’t have much runway left for pursuing judicial aspirations.
While I briefly looked at the possibility of running for the court in 2014 if there had been an open seat, that did not happen. When I determined that there would not be an open seat, I texted my wife, “Good news, bad news. No opportunity on the court but we’re going to France in May.” Her immediate response was, “So what’s the bad news?”
Late in the 2015 legislative session, Gov. Deal added to the budget three new judgeships on the Court of Appeals, posts which were authorized but had never been funded. The legislature easily went along with expanding the court from 12 to 15. The new posts were to be effective January 1, 2016.
Again, I briefly considered seeking one of those appointments. But I recognized that the Governor would likely appoint people young enough to serve several decades — and young enough to be my children if I had started a family in my early twenties — while I would only be able to serve one decade before the quasi-mandatory retirement age. Moreover, I knew that if I got on the “short list” again as a courtesy, I would have to interrupt a planned vacation in Italy to fly home for a perfunctory interview.
Sure enough, when we were in Rome when I read online that Gov. Deal had appointed Judge Amanda Mercier (40), Judge Nels Peterson (38) and Judge Brian Rickman (36). All are brilliant young conservatives who will serve with distinction. All were born after I started law school, and one was born when I was prosecuting felonies. Like several other young appellate judges, all are members of the conservative Federalist Society. All are bright, well qualified and young enough to serve until approximately 2050 (Mercier), 2052 (Peterson) or 2054 (Rickman) before reaching mandatory retirement age. The torch has been passed to a new generation.
- Expansion of Supreme Court from 7 to 9 justices.
In the 2016 legislative session, Governor Deal is close to gaining legislative approval for expanding the Supreme Court. The state constitution authorizes up to 9 seats on the Supreme Court but only 7 have been funded and filled. On February 18th, the Georgia House of Representatives approved the court expansion. It appears likely that the Senate will also approve it.
The enlarged size of the Supreme Court would enable it to hear some cases in panels of three which would recommend decisions to the full court. The same legislation would make jurisdictional changes, shifting cases involving land titles, equity, wills, extraordinary remedies and divorce and alimony from the Supreme Court to the recently expanded Georgia Court of Appeals. According to Chief Justice Hugh Thompson, the intent is to free up the state’s highest court to devote more time and energy to the most complex and the most difficult cases that have the greatest implications for the law and society at large.
- Appointment of majority of both Supreme Court and Court of Appeals.
By the time he leaves office in January 2019, Governor Deal will have appointed at least 5 of 9 justices on the state Supreme Court and at least 8 of the 15 judges on the Court of Appeals.
On the Supreme Court, he appointed Justice Keith Blackwell in 2012, promoting him from the Court of Appeals in his mid-thirties. By the end of 2016, it appears that he will be able to appoint two new members of the Supreme Court to fill the newly created posts. By 2018, he will appoint two additional Supreme Court justices due to retirements.
The two retirements from the Supreme Court will be due to the forced retirement age of 75. In Georgia, an appellate judge must retire on or before the day he or she reaches the age of 75, or on the last day of the term in which she or he reaches 70, whichever is later. Any appellate judge who fails to resign then receives no retirement benefits. Due to this effectively mandatory retirement rule, Chief Justice Hugh Thompson (whose wry wit is unfortunately kept under wraps in public because too few people who don’t know him well would be sharp enough to get his jokes) will need to retire by July 2018 and Presiding Justice P. Harris Hines will retire by September 2018. My hunch is that Chief Justice Thompson step aside as Chief Justice by 2017, to allow Justice Hines to take a turn as Chief Justice before his retirement.
If a Republican is elected President in 2016, it would not be surprising to see Justice David Nahmias appointed to the U.S. Eleventh Circuit Court of Appeals or perhaps even a vacancy on the U.S. Supreme Court. He was on Harvard Law Review with President Obama, clerked for the late Justice Scalia on the U. S. Supreme Court, served in the U.S. Justice Department in the second Bush administration and was U.S. Attorney in Atlanta toward the end of the Bush years. His move to a federal court would give Gov. Deal yet another opportunity to appoint a Supreme Court justice.
The Governor may fill at least one – and maybe more — of those Supreme Court openings with a promotion of young conservatives from the Court of Appeals. The Court of Appeals judges who are in that category include Judges Steve Dillard (appointed by Gov. Perdue), Mike Boggs (who chaired Criminal Justice Reform Council and was blocked in federal court nomination by liberal opposition in Washington), Elizabeth Branch (who served in the U.S. Department of Homeland Security in the second Bush administration), Carla Wong McMillian, Brian Rickman, Amanda Mercier and Nels Peterson (who was executive counsel to Governor Sonny Perdue and state Solicitor General under Attorney General Sam Olens).
I will be surprised if the Governor does not give the last of his Supreme Court appointments to his loyal executive counsel, Ryan Teague, now in his mid-thirties, allowing him to join on the bench the young Federalist Society peers in whose judicial appointments he has been instrumental. I like Ryan and enjoyed working with him when I was State Bar president.
Each promotion from the Court of Appeals to the Supreme Court will give the Governor a “twofer,” the opportunity to make another appointment to the Court of Appeals, probably other young members of the conservative Federalist Society. Looking at the “short list” from last fall’s Court of Appeals selection process, and excluding candidates over 50 years old who may have been included mostly as a courtesy, that leaves Georgia Solicitor General Britt Grant, 37. She was an aide in Nathan Deal’s congressional staff in Washington and at the Bush White House before graduating from Stanford Law School in 2007. There is also a long list of young Superior Court and State Court judges who might be considered. Each pomotion of a trial court judge to the Court of Appeals to replace a judge promoted to the Supreme Court would give the Governor a “three-fer,” an opportunity to appoint three judges in a chain reaction.
In addition, the highly respected Presiding Judge Herb Phipps will have to retire from the Court of Appeals by his 75th birthday before Gov. Deal’s term ends. Because Judge Phipps is African American, there will be sentiment in favor of replacing him with by another African American. The pool of young, conservative African American Federalist Society members in Georgia is small. I will refrain from speculation about who might be chosen.
- New Judicial Building.
Another topic discussed during my term as State Bar president was the potential to build a new Judicial Building. Currently both appellate courts and the Attorney General’s staff are shoehorned into the old judiciary building across from the capitol, with offices scattered through adjoining buildings. While it is not publicized, I have heard privately for years that some of these leaky buildings have some sort of “sick building syndrome.” Whether due to mold, chemicals, poor ventilation or something else, I understand it is a chronic problem.
Last year, the State Financing and Investment Commission shifted $7.5 million in bond funds to begin the process of designing a new judicial complex to be built on the site of Archives Building that has been vacant (except for movie productions) several years due to structural problems.
Preliminary design images have leaked into the media. Designed to house Georgia’s highest courts for at least the next century, it will stand above the intersection of I-20 and I-75/85 near the capitol building. While this is still a work in progress, I expect construction will begin before Gov. Deal leaves office.
- Electronic court filing.
One of my pet projects as State Bar president was to promote creation of a statewide e-filing system in superior and state court. The biggest obstacle was the Council of Superior Court Clerks whose concept of e-filing was contrary to what most lawyers and judges seemed to want. We wanted a system in which we could use a single statewide log-in to access filing in all participating counties, and in which we could view and download documents in our case as well as submitting documents electronically.
When I mentioned this to Gov. Deal, he immediately understood and supported what we were trying to do. Last year, he included in the budget funds for development of the system. I am now serving on the Judicial Council Standing Committee on Technology, which has contracted with the National Council of State Courts for development of the statewide e-filing portal. Already a variety of e-filing systems are proliferating through the state. I am hopeful that a statewide e-filing portal will be operational by the time Gov. Deal leaves office.
In summary, by the time he leaves office in January 2019, the small town lawyer I met at a doctor’s deposition long ago will have stamped his legacy on the Georgia judicial system with expanded appellate courts, a new generation of young conservative judges who can serve to the middle of the 21st century, a reformed criminal justice system, new judicial building, new evidence code and statewide electronic court filing system.
Ken Shigley is a former president of the State Bar of Georgia (2011-12), chair of the American Association for Justice Motor Vehicle Collision, Highway and Premises Liability Section (2015-16) and a board certified civil trial attorney of the National Board of Trial Advocacy.