Herbert Phipps will be sworn in as the next chief judge of the state Court of Appeals next month, the court announced today.

Phipps’ ascension to the position of chief had been expected. The court’s judges select their own chief but follow a tradition of transferring the chief judge spot by seniority. Phipps was next in line after the current chief, John Ellington. A press release issued by the court today said Phipps’ election to the chief post was unanimous.

Governor Roy Barnes appointed Phipps, Ellington and M. Yvette Miller to the appeals court on the same day in 1999, but by random selection, Phipps was deemed to follow the other two in seniority. Phipps previously had been a judge on magistrate, juvenile, state and superior courts in Dougherty County.

Phipps will be sworn into the new position in a ceremony in the Court of Appeals courtroom on June 25 and will officially take over the job on July 1, the court’s release said. Two years ago,  Phipps swore in Ellington as chief in an unusually low-key investiture held in the court’s banc room.

One day after the Georgia Supreme Court rejected his latest appeal, a judge has set a new execution date for Warren Lee Hill.

The office of Attorney General Sam Olens announced the Feb. 19 execution date, explaining that a Superior Court judge earlier in the day had set a seven-day window from that day for the execution.

Hill was convicted by a Lee County jury for the 1990 murder of fellow inmate Joseph Handspike. Hill had been serving a life sentence for the murder of his girlfriend.

In federal and state habeas proceedings, Hill challenged Georgia’s requirement that an inmate provide proof of mental retardation beyond a reasonable doubt if he wants to avoid execution under a 2002 U.S. Supreme Court rule that bars execution of the mentally retarded.

A state court judge who found Hill mildly mentally retarded said the Georgia standard was unconstitutional, and some state and federal appeals court judges agreed, but the full U.S Court of Appeals for the Eleventh Circuit in 2011 voted 7-4 to uphold it.

Hill was scheduled to be executed last summer, but the state Supreme Court gave him a reprieve so it could consider his argument that the state’s reduction of the number of drugs used in lethal injection from three to one was the sort of change that triggered certain administrative requirements, such as a public notice and comment period. A unanimous court rejected that argument yesterday.

UPDATE: The AG’s office announced a second execution date later this afternoon. Andrew Allen Cook, convicted of the 1995 murders of two Mercer University students, is scheduled to be executed on Feb. 21. A spokeswoman for Olens said yesterday that Cook, whose appeal was rejected by the U.S. Supreme Court just two weeks ago, was the only Georgia death row inmate who completed his appeals during the time since the Georgia Supreme Court stayed Hill’s execution.

Friday’s court decision blocking President Barack Obama’s January 2012 appointments to the National Labor Relations Board stands in contrast to what the U.S. Court of Appeals for the Eleventh Circuit had to say in 2004 about the recess appointment of Judge William Pryor Jr.

As explained by Slate’s Emily Bazelon, the D.C. Circuit on Friday invalidated three of Obama’s appointments to the NLRB, leaving everything the board has done in the last year up for constitutional challenge. The issue is the timing of the appointments: the Constitution says the president has the power to fill, at least temporarily, “all Vacancies that may happen during the Recess of the Senate.” Obama made the NLRB appointments when the Senate was on a 20-day break, but the Senate claimed it was not in recess, and the D.C. Circuit panel said the appointments were unconstitutional. The Obama administration could ask the full D.C. Circuit to review the matter or bypass that in favor of a petition to the Supreme Court.

The wide-ranging implications of the matter may be enough to get the Supreme Court’s attention, but the high court also is interested in issues that have divided the circuit courts of appeals, and that’s where the Eleventh Circuit comes in. As Bazelon notes, the Eleventh Circuit took a different view of recess appointments when it considered the appointment of Pryor, who had been Alabama’s attorney general. The court’s majority found no constitutional violation in President George W. Bush appointment of Pryor to the Eleventh Circuit during a 10-day break for President’s Day, saying  the president could make valid recess appointments during breaks taken in the middle of a session of Congress.

That decision was 10-2, with Judges Rosemary Barkett and Charles Wilson dissenting. Barkett took issue with both the majority’s interpretation of the law of recess appointments and its decision to hear the case of a new colleague on the merits. Wilson made only the latter point, agreeing with Barkett that the issue should have gone directly to the Supreme Court. The high court later declined to take up the case, and in June 2005 the Senate voted 53-45 to make Pryor’s appointment permanent. Pryor, whose nomination had been blocked by Democrats who said they objected to his vocal opposition to the high court’s decision granting abortion rights, among other conservative leanings, remains on the court today.

The D.C. Circuit’s explanation of why it finds the Eleventh Circuit majority’s analysis unconvincing begins on page 26 of the panel opinion. Bazelon notes that the Second and Ninth Circuits also have said recess appointments made in the middle of a Senate session are OK.

Chief Judge Joel Dubina of the U.S Court of Appeals for the Eleventh Circuit will step down as chief on August 1, Dubina told the Daily Report this week.

Dubina, who maintains his primary chambers in Montgomery, Ala., has been chief judge since mid-2009. He said the next chief judge will be Edward Carnes, a Montgomery-based judge who is next in line by seniority.

Court rules allow chief judges to serve up to seven years. “It has been the highlight of my judicial career,” Dubina said of his time as chief. “But there comes a time when you need to turn the reins over to someone else, and I believe that time has come for me.”

Dubina said he was leaning towards taking senior status—a form of semi-retirement in which judges can work a lighter caseload—in August, as well, but he didn’t commit to doing so. “I have not sent a letter to the president yet about senior status, and I have not definitively made up my mind about that,” he said.

The judge became eligible for senior status in October, when he turned 65. But he has said he promised his colleagues he would stay on as chief through this year’s judicial conference, set for May in Savannah. Senior judges cannot be chief.

Taking senior status would create another vacancy on the court for the president to fill. The court already has two vacancies, and Dubina said the pace of filling those vacancies is a factor he is considering in deciding when to take senior status. President Barack Obama recently renominated Atlanta lawyer Jill Pryor for one of the court’s vacancies, created in 2010 by the retirement of Judge Stanley Birch Jr. Obama has yet to name a nominee for the other Georgia-based vacancy, that created when Judge J.L. Edmondson took senior status in July.

Introduced at a luncheon today as one of the state Court of Appeals’ two newest judges, Judge Billy Ray said he had to check his phone to make sure that was still true.  “We’re expecting a new judge to be named just about any day,” Ray said.

The court and those who practice before it still are waiting for Governor Nathan Deal to announce his pick to replace Judge Harris Adams, who retired at year’s end. Deal’s Judicial Nominating Commission last month gave him a short list of three: Dougherty County Superior Court Judge Stephen Goss, Fayette County State Court Judge Carla Wong McMillian and Tift County State Court Judge Larry Mims.

Meanwhile, Ray and the other new appeals court judge, Lisa Branch, shared their perspective on the court with a few dozen who sat down for a lunch sponsored by the State Bar’s appellate practice section at the bar’s mid-year meeting.

Ray said he didn’t think he was revealing any secrets when he said the court’s staff attorneys do a “lion’s share” of the court’s work, prompting Judge Sara Doyle to exclaim, “Oh, no,” in mock horror, to laughter from the group. “But ultimately the judge has to be involved,” he added.

Both he and Branch indicated they largely don’t ask their staff attorneys to weigh in on cases where another judge writes the decision. With “fairly routine cases” in which opinion-writing duties are assigned to him, said Ray, he may not have any input until one of his staff attorneys drafts an opinion. “But if there are cases that are controversial, I’m going to be involved on the front end of that,” said Ray.

Ray said he’ll miss being on the same panel as Branch at the end of the court’s term, known as the “distress” period. Because she started on the court after him, he wasn’t the most junior member of his panel. That person, he said, can be in a difficult spot when another judge’s opinion is circulated for approval as the end-of-term deadline looms. “The part that makes distress so fun and also worrisome is that when we do have a dispute, perhaps leading into the last week, and we’re trying to figure out how to handle that dispute … maybe the judge who is last on the totem pole hasn’t seen that case until Tuesday or Wednesday, and distress is Friday.”

President Barack Obama today renominated Atlanta litigator Jill Pryor for a vacancy on the U.S. Court of Appeals for the Eleventh Circuit, along with 32 others whose nominations to federal judgeships had expired when the 112th Congress adjourned.

An American Bar Association committee was unanimous in giving Pryor, who graduated from Yale Law School and clerked for Eleventh Circuit Judge J.L. Edmondson, a “well qualified” rating. But Georgia’s Republican senators, Saxby Chambliss and Johnny Isakson, stopped her nomination from proceeding, having told the White House early last year that they preferred Pryor and U.S. Magistrate Judge Linda Walker for district court spots and Troutman Sanders partner Mark Cohen for the circuit opening created by the 2010 retirement of Stanley Birch Jr.

Edmondson took senior status in July, creating yet another Georgia-based circuit court opening.

There still are no nominees for the vacancies in the Northern District of Georgia. In January 2011, Obama nominated Walker and Natasha Perdew Silas, an attorney with the Federal Defender Program in Atlanta, to fill the posts but withdrew both nominations at the end of 2011 after Chambliss and Isakson refused to lend their support to Silas.

Eight years on the Fulton County Juvenile Court bench were enough for Belinda Edwards, the county’s superior court judges have decided.

Fulton Superior Court Chief Judge Cynthia Wright confirmed she and her colleagues had decided not to reappoint Edwards to another four-year term. Edwards, who had been serving as her court’s chief judge, is a former general counsel for Morris Brown  College first tapped for the juvenile court bench in November 2004.

Wright declined to divulge the tally of the superior court judges’ Dec. 6 vote on Edwards’ reappointment and was close-mouthed about the reasons Edwards’ term was not renewed. “The superior court judges just felt like it was time to move in a different direction,” said Wright, explaining there will be a separate process to fill the vacancy on the court.  “I can’t speak to why anyone cast their vote in any particular manner, but it was a  decision that the bench made.”

In the wake of the judges’ decision not to renew her term, Edwards purported to fire juvenile court administrator Omotayo Alli, according to Wright. Wright said she put a stop to that in a Dec. 21 order. “I just thought that was a decision that should not be made by someone with hours left in her administration,” Wright said.

Attempts to reach Edwards have been unsuccessful.

Given yet another chance to shape the state’s appellate courts, Governor Nathan Deal has three resumes on his desk: those of Dougherty County Superior Court Judge Stephen Goss, Fayette County State Court Judge Carla Wong McMillian and Tift County State Court Judge Larry Mims. That’s the shortlist Deal’s Judicial Nominating Commission gave him last week for filling a vacancy on the state Court of Appeals.

Want to handicap Deal’s choices?  Or perhaps weigh in yourself with some unsolicited opinions? Here’s some more information, found in the application packets the candidates submitted to the JNC, with a few personal details redacted by the Daily Report:

• Goss says the Dougherty Superior Court mental health and substance abuse treatment program that he founded and presides over was the first felony mental health court program in Georgia. He presided over a murder case tried twice in 2003; the first trial resulted in a hung jury, and the second, covered in its entirety by Court TV, resulted in an acquittal.

• McMillian was once valedictorian at the Westminster Schools of Augusta. She says that as a state appeals court judge she would advocate the use of unpublished opinions “to decide routine appeals and resolve cases without the danger of inadvertently creating unintended precedent.”

• Prior to becoming a prosecutor and then a judge, Mims represented indigent criminal defendants under a contract with Tift County. A two-time unsuccessful candidate for county school board in the 1980s, Mims also was associate counsel and lead plaintiff in a federal lawsuit challenging at-large election procedures in the county. The settlement of that case resulted in the county adopting single-member districts for county commission and school board posts.

Decatur criminal lawyer and blogger J. Scott Key has written up an interesting death penalty decision issued by the Georgia Supreme Court last month.

The unanimous decision reversed a death sentence handed down in DeKalb County in 2008. The court said a DeKalb judge was wrong to forbid lawyers for defendant Clayton Jerrod Ellington, on trial for the murder of his wife and their twin two-year-old sons, from asking all prospective jurors whether they could consider a life sentence in a case involving the murder of young children. Prosecutors said that impartiality questions relating to facts not set forth in the indictment were improper, but the Supreme Court said that as soon as the jury was empaneled and the trial began, the age of the victims became a focus of the state’s argument that Ellington should be sentenced to death.

The takeaway, says Key, who filed an amicus brief in the case on behalf of the Georgia Public Defender Standards Council, is to look beyond the indictment in preparing to try a case.

As you prepare for voir dire, consider what things about your case could be a problem for certain jurors. Then craft questions designed to find out who those jurors are. Anticipate that opposing counsel will object and say that you are asking jurors to prejudge facts. Prepare your response using the language in Ellington. And keep in mind that a case is often about much more than the language contained in the indictment.

Governor Nathan Deal’s Judicial Nominating Commission has forwarded the names of three finalists to fill a vacancy on the Court of Appeals of Georgia. They are, according to the governor’s office: Stephen Goss, a Dougherty County Superior Court judge;  Carla Wong McMillian, a Fayette County State Court judge; and Larry B. Mims, a Tift County State Court judge.

We will have a full story on our website later this afternoon and in our print edition tomorrow.