Justice Unmasked: Excessive Court docket Highlights From Georgia’s Supreme Court docket

When he assumed the role of Georgia’s top jurist in 2018, now-former Chief Justice Harold Melton surely had no idea of the tumultuous tenure awaiting him as he shepherded Georgia’s courts through COVID-19 closures, mask mandates and varied vaccine rollouts. 

Small wonder, then, that the indefatigable Melton—repeatedly driven by a relentless virus to reissue emergency orders postponing trials, deadlines and in-person procedures—decided to exit the court in July, accompanied by accolades for his handling of the pandemic and the courts’ ability to continue functioning.

Chief Justice Harold D. Melton of the Georgia Supreme Court. Photo: Jeffrey Etheridge/Auburn University

Melton’s departure allowed Court of Appeals Judge Verda Colvin to be elevated to the state’s highest bench as its second Black woman, the first being former Chief Justice Leah Ward Sears, who retired in 2009. 

Stepping into Melton’s place, current Chief Justice David Nahmias must have breathed a sigh of relief when it appeared things were getting back to a semblance of normalcy after the court gingerly resumed in-person, mask-optional arguments.

Then along came Omicron, a new COVID-19 variant that might or might not be as harmful as its cousin Delta but is apparently even more virulent.

Through it all, the justices managed to churn through a hefty pile of cases, delivering a commensurately impressive tranche of rulings.

Chief Justice David Nahmias, Supreme Court of Georgia. Photo: John Disney/ALM Chief Justice David Nahmias, Supreme Court of Georgia. Photo: John Disney/ALM

The conservative court—all appointed to the bench by Republican governors, including several with sterling Federalist Society bona fides—issued a number of rulings applauded by prosecutors and the civil defense bar, keeping in place Georgia’s extremely high hurdle for capital defendants pleading mental incompetence, shielding landlords from Gang Act claims for crimes committed on their properties and tossing a $54 million verdict against a car rental company for injuries suffered by two women hurt when an employee stole a car and hit them.

Even decked out in pearls, they opted for an understated single strand, accented with black-and-taupe chapeaux. Classic elegance.

So it must have come as a shock when the American Tort Reform Association deemed the Georgia Supreme Court a “Judicial Hellhole.”

Coming in at Number 3 on ATRA’s list of eight infernal realms—and one of three individual courts singled out for the dubious distinction—the annual report accused the justices of overseeing a “rotting civil justice system.”

Wow. Hope those robes are fireproof. 

So what has the court been up to this year? Let’s review a few highlights.

Party of One

Swearing-In Ceremony for Supreme Court of Georgia Justice Verda M. Colvin on July 29, 2021 at the Georgia State Capitol. Image via video Swearing-In Ceremony for Supreme Court of Georgia Justice Verda M. Colvin on July 29, 2021 at the Georgia State Capitol. Image via video

The decision that most irked ATRA was an August ruling in a legal malpractice case against Alston & Bird in which a jury award included nearly $700,000 in compensatory damages but allocated 60% of the fault to a nonparty and 8% to the plaintiffs. 

The trial judge said defendant Alston & Bird was responsible for only 32% of the damage award, but the Supreme Court agreed with the Court of Appeals that Georgia’s apportionment statute does not allow damages to be levied against a nonparty in a single-defendant case, leaving A&B on the hook for the bulk of the award.

“There is no grant of authority in the apportionment statute to reduce damages according to the percentage of fault allocated to a nonparty in a case with only one named defendant,” wrote Justice Nels Peterson for the unanimous court in Hatcher v. Alston & Bird.  

Rental Car Reversal

The defense bar hailed a decision holding that a jury ran off the road in awarding $54 million against Avis Car Rentals for injuries suffered by two women who were sitting on a wall, when they were hit by a car stolen by a man hired to wash cars at the rental center but instead decided to steal one.

While Avis may have been remiss in screening its employees, wrote Melton, “the salient question in both cases is not about Avis’s alleged negligence, but about whether its alleged negligence was the proximate cause of the plaintiffs’ injuries.” 

Justice John Ellington dissented, writing that “questions regarding proximate cause are undeniably a jury question and may only be determined by the courts in plain and undisputed cases.”

State Your Objection

Judge Shawn LaGrua. Photo: John Disney/ALM Judge Shawn LaGrua. Photo: John Disney/ALM

After a jury awarded $18 million to a man gravely injured when his tractor was rear-ended by a dump truck defense lawyers appealed, challenging among other things a closing remark by the plaintiffs lawyers that an award insufficient to provide round-the-clock home care would be “signing his death warrant.”

The defense didn’t object at the time the statement was made, but the Court of Appeals deemed it inflammatory and in violation of motion in limine the trial court had entered. 

The Supreme Court reversed, with Justice Carla Wong McMillian writing that an objection must be made “at the time an alleged violation of a ruled-upon motion in limine occurs at trial.”  

Justice Charles Bethel took the opportunity to pen a concurrence urging lawyers to refrain from filing “broad boilerplate” motions in limine.

Due Process Here and Abroad

Ruling in a case involving a woman who claimed to have suffered years of sexual abuse by her parents, the high court refused to declare Georgia’s Hidden Predator Act unconstitutional, and allowed the case—which included claims that some of the abuse occurred in Canada—to move forward.

The parents also argued that the 2015 act, which provided a “window” for victims of long-ago abuse to bring suit, violated Georgia’s constitutional ban on retroactive laws and the due process and equal protection clauses of the state and federal constitutions.

A unanimous opinion authored by Peterson disagreed.

The statute’s “definition of childhood sexual abuse is broad enough to cover acts that occurred outside of Georgia, and such a result does not violate [the parents’] due process or equal protection rights.”

Ignorance of the Law(suit) Is No Excuse

Justice Charles Bethel, Supreme Court of Georgia. Photo: John Disney/ ALM Justice Charles Bethel, Supreme Court of Georgia. Photo: John Disney/ ALM

Answering a question from the Eleventh Circuit Court of Appeals, the justices again offended ATRA’s sensibilities by ruling that an insurer that claims to have no notice of a pending lawsuit can still face a bad-faith suit.

The case involved a woman in a borrowed truck who hit a bicyclist, whose lawyer sent a demand letter seeking Geico’s $30,000 policy limits. The insurer later said it couldn’t reach the lawyer to discuss the matter, and the injured cyclist sued the defendant driver.

When served, the unimpressed defendant “wadded it up, threw it away and said, ‘To hell with this shit,’” according to court documents. (An unorthodox bit of motion practice, to be sure.)   

The plaintiff successfully sought default judgment and Geico ultimately ended up on the hook for a $2.1 million federal jury award.

Geico said it was “blindsided” by the suit, but the state justices told their appellate colleagues that, under Georgia law, Geico’s “unreasonable rejection” of the settlement demand and failure to foresee its consequences left it vulnerable to a bad faith, failure to settle claim. 

Landlords & Gangsters: Know the Difference 

Lawyers for property owners and management companies rejoiced when the unanimous court ruled that landlords sued over criminal activity on their property are not liable for treble damages under Georgia’s Street Gang Terrorism and Prevention Act.

The law allows anyone injured by gang-related activity to pursue three times their compensatory damages from “actors who proximately caused the plaintiff’s injuries by reason of their criminal gang activity.”

In one of several similar pending cases, a judge allowed such claims by a man shot at an apartment complex during a robbery to proceed.

The Court of Appeals—albeit reluctantly—allowed the claims to survive. 

Melton’s order reversing that decision said the law was meant to target “members and associates of criminal street gangs who proximately cause a plaintiff’s injury” and not otherwise innocent property owners, who may still be sued for nuisance and other civil claims.  

Sane Enough to Die

Judges are often said to “struggle” with a particular case, but the justices were clearly troubled when ruling that Georgia law and precedent left them no choice in upholding the death penalty for a man guilty of a savage murder despite evidence of his mental disability. 

Alone among the 50 states, Georgia requires a defendant raising claims of mental illness to a capital sentence to prove that disability beyond a reasonable doubt.

During oral arguments Melton termed Georgia’s burden of proof an “outlier,” but three justices joined him in concluding Rodney Young had been afforded all the protections the law allowed before being sentenced to death for killing his girlfriend’s son in 2008.

“We are not called upon here to make a pronouncement on the wisdom of Georgia’s burden of proof from a policy perspective, and to do so would be beyond this court’s constitutional power,” Melton wrote.

Nahmias—joined by Justices Nels Peterson and Michal Boggs—issued a concurring opinion expressing unease with Georgia’s “unique statute” under the Constitution’s Eighth Amendment guaranteeing against cruel and unusual punishment.

Justice Charles Bethel dissented, writing that adhering to the beyond a reasonable doubt standard created an “unacceptable risk that an intellectually disabled person will be executed.”

It’s a Gift Horse—At Least Feed It 

When the volunteer lawyers for the defendant in a high-profile murder case asked the Georgia Public Defender Council for money to hire an investigator and expert, it would seem like a good deal for the agency to cough up some money, since they were getting legal services for free. 

But a trial judge and the GPDC said defendant Ryan Duke’s defense wasn’t their worry—he had private lawyers and could arrange for his his own experts.

The Supreme Court scratched its collective head and in a 8-to-1 decision said the state, having been relieved of Duke’s legal fees, should at least shoulder some of the expense for a constitutionally sound defense.

Peterson, in a separate concurrence, termed the state’s position “a bit mystifying.” 

“The State’s position would seem to discourage lawyers from taking on the cases of indigent criminal defendants pro bono, shifting additional defense representation costs onto the State,” Peterson wrote. 

The GPDC “would be most unwise to decline to contract with Duke’s counsel on remand,” he said.     

We Have Enough Jailhouse Lawyers, Thanks 

Thanks to COVID-19, disbarred Ball Ground lawyer Gregory Bartko—sentenced to 22 years in federal prison in 2014 and ordered to pay $885,000 in restitution for charges including conspiracy, mail fraud and selling unregistered securities to “members of rural Baptist churches and others”—was granted temporary home-confinement. 

Bartko voluntarily surrendered his law license, but as he remained confined at home last year he decided to see if he could persuade the state Bar’s Fitness Board to waive its policy of rejecting applications from currently incarcerated individuals so he could reapply for his law license. 

Uh, no, said the board. The Supreme Court agreed.

“In his application, Bartko acknowledged that he has approximately ten years remaining of his original prison sentence,” the per curiam opinion said. “The record also shows that he has paid virtually none of the restitution.”

“Permitting someone to practice law while serving a prison sentence would undermine the public’s trust in the legal profession,” it concluded.

Yes, maybe a little bit.    

Boot Loot? Scoot 

Just in time for Christmas, a unanimous Supreme Court vindicated the parking public’s general disdain for the ubiquitous “parking boot”—that cast-iron contraption used to leverage random removal fees ranging from costly to extortionate from motorists unfortunate enough to run afoul of “the Booting Guy,” invariably lurking nearby and ready to pounce at a moment’s notice. 

Ruling in a putative class action initially filed by a trucker forced to pay $650 to free his rig from the mechanical claw at a Decatur shopping center, the justices agreed with a trial judge and Court of Appeals that—absent enabling legislation—there “appears to be no legal authority recognizing a common-law right to immobilize unauthorized vehicles located on private property and hold them against the owner’s will until payment is received.” 

Some jurisdictions do have such legislation—which usually limits fines and mandates strict signage—but Georgia drivers may want to print that opinion out and carry it in their glove compartments. (And take an extra copy for “the Booting Guy.”)