Effective December 4, 2017, the Georgia Court of Appeals enacted significant changes to its rules governing the issuance of decisions and the method in which prior cases are overruled. These rule changes were authorized through the Georgia General Assembly's amendment to O.C.G.A. § 15-3-1 in 2016 as part of the “Appellate Jurisdiction Reform Act of 2016.”
The Court of Appeals is the intermediate appellate court in Georgia, hearing most appeals of civil cases including personal injury and wrongful death matters from decisions of trial courts (state and superior courts). Through expanded jurisdiction under legislation that went into effect at the beginning of 2017, the Court of Appeals also now has jurisdiction over domestic cases and land dispute cases that were previously reserved to the Georgia Supreme Court. The Supreme Court continues to hear appeals from the Georgia Court of Appeals on petitions for certiorari, and certain categories of cases, including serious criminal cases where the death penalty could be involved, are appealed directly to the Supreme Court.
Cases before the Georgia Court of Appeals are assigned to 3-judge panels to decide the case. The court has 15 judges currently, and therefore consists of 5 panels. For many years, the Court of Appeals did not allow a panel decision where one of the three judges dissented from the outcome. Instead, if a dissent was involved, the case was decided by 9 judges, consisting of the original panel and two additional panels of judges. As a result, judges were sometimes under pressure to quickly review a decision that had to be decided by 9 judges, particularly at the end of the term when the Court of Appeals is constitutionally required to decide a case. Under the Georgia Constitution, the Court of Appeals is required to decide cases no later than the end of the term of court following the one into which it was docketed, or else the case would be affirmed by operation of law (the “two-term rule”).
Georgia was unusual in disallowing dissents from 3-judge panels. Most states, as well as the federal appellate courts, permit dissents, so that the judgment of 2 of the 3 judges would determine the outcome of the case. The Georgia Court of Appeals permits judges to “concur in judgment only,” meaning that the concurring judge agrees with the outcome of the case but not necessarily in the reasoning. These concurrences in judgment only resulted in the case being “physical precedent,” which means that the case is only persuasive, and not binding, authority, under Court of Appeals Rule 33 (Rule 33.2 under the revised rules).
The new rules dramatically change court procedure. Dissents are now allowed in 3-judge panel decisions, although they are deemed “physical precedent only” under Court of Appeals Rule 33.2, along with any decisions of 3 judge panels in which all the judges do not concur fully in the decision. The provision for 9-judge panels has been eliminated, and therefore all decisions are now ruled upon by either a 3-judge panel or by an en banc decision of the entire 15-judge court (subject to any judges who recuse or are otherwise disqualified from ruling on a particular case). Where an en banc decision includes dissents or concurrences in judgment only or specially, the case is physical precedent only as to any issue in which a majority of judges deciding the case to not fully concur in the decision.
Under the version of O.C.G.A. § 15-3-1 (effective until January 1, 2017), a prior decision of the Court of Appeals could only be overruled by a panel of 7 judges (such panels being changed to 9 judges in the past year), and a whole-court en banc decision could only be overruled by the whole court. Now, any decision of the Court of Appeals can be overruled by a 3-judge panel under Court of Appeals Rule 33.3. Such decisions must be unanimous (meaning no dissents are allowed in this situation) and the panel issuing the decision must consult with the other judges on the court before doing so. A party may seek reconsideration by the whole court from decisions that overrule prior cases.
The new rules became effective as to all cases pending before the court on December 4, 2017. The changes amended Court of Appeals Rules 33, 34, 35, and 36, and added Rules 33.1, 33.2, and 33.3. The Court of Appeals Rules can be found in their entirety on the court's web site.