The Georgia Court of Appeals is known for its heavy workload and quick-turnaround deadlines. As the second-highest court in the state, it also largely flies under the radar.
Now it is taking on what will likely be the highest-profile appeal in its history, involving the presumptive Republican nominee for president, one of the most high-profile prosecutors in the country and salacious allegations about her personal life.
The court on Monday selected a three-judge panel to hear an appeal of whether District Attorney Fani Willis should be removed from the Fulton County election interference case and tentatively set oral arguments on Oct. 4, though a court official later said that date would be rescheduled. That timeline, if it holds, essentially guarantees that the racketeering case won’t go to trial before voters head to the polls this fall.
That is already attracting criticism from many progressives who would like to see former President Donald Trump on trial before November for his actions to overturn the 2020 election results in Georgia and other swing states.
Trump and eight other defendants have argued that Willis has a conflict of interest that merits her disqualification from the election case, pointing to a romantic relationship she once had with Nathan Wade, who until recently served as the case’s top prosecutor. Fulton Superior Court Judge Scott McAfee ruled that Willis could stay if Wade stepped aside, which he did in March — but that has not satiated defendants.
Even though the 15-member appeals court is not particularly well known, it is among the busiest appellate benches in the country. Nearly 2,500 cases were filed there last year, according to the court.
Credit: Combined photos
Credit: Combined photos
The judges are elected to staggered, six-year terms in statewide, non-partisan elections, but more than two-thirds of them were first appointed to their positions by Georgia governors, who for the last 22 years have been Republican.
But the factor that shapes the character of the court perhaps more than any other is the strict constitutional requirement that the judges decide cases within two terms of court. That rule, which is designed to keep the court from falling behind, serves as a severe time constraint that forces the jurists to keep churning through their caseload.
The average case before the Court of Appeals takes roughly eight-and-a-half months from when it is docketed — or officially accepted — to when it is decided, according to legal observers who closely follow the court.
“I know that it sounds slow to people who aren’t involved in the legal system, but that sort of timeline when you’re talking about getting briefs in, having oral argument and then having the judges prepare a decision is really not slow,” said Atlanta attorney Leigh Ann Webster. “That’s, in my experience, a very quick turnaround.”
When the court agreed last month to take up the disqualification matter, it opened the door for the parties to appeal other decisions made by McAfee in the election case. Among the additional issues the judges will consider: the six criminal charges McAfee dropped from the indictment because they lacked sufficient detail.
With the Willis disqualification motion docketed this week, judges would be required to issue a decision by mid-March under the two-term rule. Whatever they decide, the losing side is expected to appeal to the Georgia Supreme Court, which means a resolution is not expected anytime soon.
Oral arguments and group consideration possible
The appeals court won’t be collecting new evidence against Willis or doing any fact-finding. It will instead determine whether McAfee arrived at the correct legal conclusions when he ruled in March that while Willis did not have a disqualifying conflict of interest, there was an appearance of a conflict.
The appeals court considers most of its cases — upwards of 80 percent, according to observers — without oral argument and only through written legal briefs.
There is no hard rule governing which cases receive arguments, which are livestreamed on the court’s website. In a 2016 Mercer Law Review article, Judge Stephen Dillard said he’s more likely to approve one if a case involves conflicting lines of jurisprudence, statewide implications or an area of law without much precedent or in need of clarification.
McAfee’s 23-page order on the disqualification challenge appears to meet one of Dillard’s criteria. McAfee noted he was “unmoored from precedent” because he could find few appellate decisions to guide him. Because of that, many legal observers believe the judges will sign off on an oral argument for the Trump case.
“It’s such a big case, I would think this is the kind of case where you would grant oral argument,” said Madison-based attorney Scott Key, who specializes in appeals.
But not everyone is in agreement. Atlanta attorney Andrew Fleischman said he would not be surprised if the judges declined a request for oral argument because they might not want to be put under a national spotlight in such a closely-followed case, especially when many public officials are facing threats to their safety.
For the cases that are allotted oral arguments, the judges typically budget just 15 minutes for each side. And the judges are known for cutting into attorneys’ presentations and peppering them with questions.
Webster said oral argument before the appeals court is a very different experience from arguing before a trial court judge.
“When you get up and you start talking, you have no idea what they are thinking about your case, where they think the weaknesses are, where they think the strengths are or what facts could get them to rule in your favor until they start asking you questions,” she said. “Then you sort of have to be equipped to respond to any question that they have on the fly.”
Credit: TNS
Credit: TNS
All three of the appeals judges who will hear the case, Trenton Brown, Benjamin Land and Todd Markle, have experience as trial court judges and have honed reputations for being conservative yet fair-minded.
It is unclear how the panel will tackle the side issues that have or could be appealed, including the six dropped charges from the indictment. Will they be heard together with the disqualification matter or at another time? Will judges ask for oral arguments for both sets of issues, one or none?
On rare occasions, maybe once a year, all 15 judges on the court will hear a case. But unlike the federal 11th Circuit Court of Appeals, litigants don’t request so-called “en banc” consideration. Instead, if there is a significant disagreement among the original three judges on the panel they may invite all of their colleagues to weigh in — but all of that happens behind-the-scenes.
Sometimes “you get a decision as a litigant, and then all of a sudden you realize a bunch of judges weighed in on it,” said Laurie Webb Daniel, an Atlanta appellate attorney.
It’s not clear if the court will choose to consider the appeal in that all-hands-on-deck manner. But attorneys who frequently work before the court say it likely isn’t lost on the judges just how weighty the matter is.
“They’ve got to be aware of the significance of this case,” Daniel said.
