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.

The Eleventh Circuit Court of Appeals has upheld a lower court ruling that the Metro Atlanta Task Force for the Homeless must pay the city of Atlanta for water service at its homeless shelter at the corner of Peachtree and Pine streets.

The unpublished order issued Tuesday affirms a 2011 summary judgment order issued by U.S. District Judge Thomas Thrash that the shelter’s claims that its constitutional rights had been violated by the city were unfounded, and that the Task Force must make good on unpaid bills totaling $147,288 at the time.

The dispute began in 2008, when the city told the Task Force that it was cutting off the water to the shelter, which houses hundreds of homeless men on any given night. The Task Force sued, alleging breach of contract and other claims charging the city with violating its due process and equal protection guarantees.

In 2011 Thrash ruled against the shelter, concluding among other things that the city was protected from suit by sovereign immunity and that the Task Force had not proved that it was treated differently from other, similar entities.

The appellate panel, comprised of Judges Rosemary Barkett, Adalberto Jordan and William T. Hodges of Florida’s Middle District, sitting by designation, concurred. The three-page ruling concluded that the Task Force had not properly pleaded its First Amendment claim, and had not demonstrated that it was denied equal protection or that it had a constitutionally guaranteed property right to grants controlled by the city.

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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.

Governor Nathan Deal has chosen Fayette County State Court Judge Carla Wong McMillian to be the newest judge on the state Court of Appeals.

McMillian, 39, is the first Asian-American judge on the appellate bench. She was appointed to the state court by Governor Sonny Perdue in 2010 and won re-election in July in a contested race.
Deal selected McMillian from a short list of candidates recommended by his Judicial Nominating Commission that also included  Dougherty County Superior Court Judge Stephen Goss and Tift County
State Court Judge Larry Mims.  More than 75 people were nominated for the seat, 33 applied and 16 were interviewed.

Today’s appointment is Deal’s fifth on the appellate bench in two years. Three of his previous four came from lower courts as opposed to the practicing bar.

Prior to her appointment to the state court bench, McMillian was a partner at Sutherland Asbill & Brennan, where she represented auto and motorcycle manufacturers in the areas of franchise and dealer litigation and defended accountants against malpractice actions.

McMillian earned her law degree from the University of Georgia and clerked for U.S. District Judge William C. O’Kelley in Atlanta. She also is on the Board of Advisors of the Atlanta Lawyers Chapter of the Federalist Society.

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.”

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.

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.

After receiving a record 75 nominations for the upcoming Georgia Court of Appeals vacancy, the governor’s Judicial Nominating Commission received applications from fewer than half the nominees.

The JNC said 42 nominees either withdrew from consideration or did not submit applications to the JNC by its Nov. 19 deadline.

JNC co-chairman Randy Evans said a subcommittee including himself, DeKalb County District Attorney Robert James and Augusta District Attorney Ashley Wright, will pare the list of applicants down to “a more manageable” 15 to 20 candidates prior to interviews on Dec. 12.

The appellate appointment will be Governor Nathan Deal’s fifth since he took office in January 2011.

The remaining 33 applicants, according to the JNC, are: Read more »

Get ready for some fast and furious questioning—and, one hopes, some good lawyering.

Tomorrow the judges of the U.S. Court of Appeals for the Eleventh Circuit will sit as a group, something they do only a few times a year.  On the docket are rehearings in three cases: an antitrust suit out of the Northern District of Georgia and two death penalty cases out of Florida. The session begins at 9 a.m.

The three-judge panel opinions in the cases can be found here, here and here.

Georgia Court of Appeals Judge Michael Boggs told the Atlanta Bar Association’s Litigation Section this morning that the governor’s expanded criminal justice reform council is now focusing on lowering recidivism among youth offenders and should have a report of suggested policy changes ready by December.

This summer, Governor Nathan Deal renewed the council’s charter and increased  its membership from 13 to 21. He also directed the council to study juvenile justice reforms.

Boggs, co-chairman of the reform council and  a former Waycross Circuit Superior Court judge, said among the strategies being considered by the council are establishing ways to incorporate youth offenders back into their communities, revising the designated felony act to give judges more sentencing options and studying school referrals of delinquent youth into the juvenile court system.

“The earlier in the continuum that we can address criminal justice reform to keep people out of the adult criminal justice system, I think the better off this state will be,” Boggs said.
Housing youth offenders in youth detention centers costs the state roughly $91,000 a year per offender, Boggs said. The bulk of the cost is due to mandate on the juvenile justice system to provide a certified education to juveniles in custody.

The state currently has 619 offenders in youth detention centers, he said.

“By the time they get out, 65 percent will be back within three years,” said Boggs. “They don’t graduate from high school, but they sure do from juvenile court to superior court.”

Last year, the council recommended policy changes aimed at adult offenders which led to omnibus overhaul legislation known as House Bill 1176, which included establishing a statewide system of accountability courts, increasing some non-violent felony thresholds and lowering the penalties for some non-violent, drug-related crimes.

Boggs also said one of his goals is to build consensus among the 21-member panel, which includes judges, lawyers and lawmakers, for the restoration of judicial discretion in sentencing. The council last year failed to reach unanimous agreement on the issue. Some reduced minimum sentences were suggested to the state Legislature, but not all were included in the omnibus overhaul legislation known as House Bill 1176.

“Mandatory minimums take away discretion from that very judge who is in the courtroom who can see witnesses and who can judge the evidence and who can determine best aggravating and mitigating circumstances and who can decide best in that setting what is an appropriate sentence,” Boggs said.