Open Chambers: Concurrences and Dissents

By Hon. Stephen Dillard

(This is a three-part series of excerpts from Open Chambers: Demystifying the Inner Workings and Culture of the Georgia Court of Appeals by Judge Stephen Louis A. Dillard. The article was a special contribution to the Summer 2014 Mercer Law Review Journal. Please note that the endnotes do not correspond with those in the original article, which may be read in its entirety at: 65 Mercer L. Rev. 831. The Appellate Practice Section thanks Judge Dillard for granting permission to share these excerpts with its members. NOTE: Since the original publication of this article in 2014, the Court of Appeals has expanded to 15 judges and the rules regarding decisions by more than a three judge panel have changed. See Eric Marlett’s articles in this issue, The Life Cycle of Precedent in the Court of Appeals: Part I, and Rule Changes in the Court of Appeals: An Update, for further discussion of these changes.)

In addition to the approximately 150 opinions I am assigned to author or dispose of every year, I am also required to carefully examine and consider the merits of approximately 300 opinions or orders drafted by my colleagues on the panel, as well as those that “roll over” to my division as a result of a dissent or are considered en banc. To be sure, most of the opinions issued by our court are not particularly controversial and result in unanimous decisions with full concurrences from the other judges.1 But occasionally, we do disagree with one another. And when that happens, a judge who takes issue with the proposed opinion has numerous options.

If a judge agrees with the judgment line in a proposed opinion, but not all of the reasoning contained therein, he or she can (1) draft a memorandum to the authoring judge outlining the problems or concerns with the opinion, and identifying any language that needs to be added or omitted in order to obtain the full concurrence of that judge;2 (2) draft a special concurrence that includes a full concurrence, but which provides additional reasoning for or commentary concerning the court’s decision; (3) draft a special concurrence that does not include a full concurrence (thus making the opinion or any disputed division of the opinion of no precedential value), but outlines entirely separate reasoning for concurring in the judgment line; (4) draft a concurrence dubitante, which is a full concurrence, but one that is done so doubtfully; or (5) simply concur in judgment only with or without a separate opinion, which also renders the opinion of no precedential value.3 If a judge on the original panel joins the special concurrence of another judge, the case is then reassigned to the author of the special concurrence and that concurrence becomes the majority opinion.

If a judge disagrees with the judgment line, he or she may author a dissenting opinion, which will then cause  the case to transition to a seven-judge “whole court,” consisting of the original panel members, a backup panel of judges, and the presiding judge of the next division.4 For example, if a judge on the First Division dissents from an opinion authored by one of the other panel members, the case will then be voted on by all three judges of the First Division, all three judges of the Second Division, and the presiding judge of the Third Division.5 A majority opinion or dissent will only trigger the consideration of the entire (twelve-judge) court when it seeks to overrule a prior precedent, or when the majority of the original panel of judges or those of a seven-judge “whole court” conclude that the case is of such importance that it warrants en banc consideration (something that rarely happens).6 If the court sitting en banc considers a case and is “evenly divided” at six-six, the case is then transferred to the Georgia Supreme Court (without the opinion being published).7

Unlike the majority opinions I author, I typically draft concurrences and dissents with very little assistance from my staff attorneys. To be sure, I have asked my staff attorneys for their assistance in drafting concurrences and dissents on occasion, and I always confer with one or more of them before any opinion leaves my chambers, but I generally do not confer with my staff attorneys about other judges’ opinions. My intent is to handle as much of the “other judge” work as possible, which allows my staff attorneys to primarily focus on assisting me with the opinions I author.

With all of that said, practitioners should understand that even when the court issues a unanimous decision, the other judges on the panel are always fully engaged in the opinion-writing process. Indeed, there is often a great deal of informal conferencing, exchanging of back- and-forth memoranda, and substantial revisions to the proposed opinion, all of which the parties never see. There are even cases in which the proposed opinion triggers a dissent, is circulated as a seven or twelve-judge decision, and then, after numerous concurrences and dissents are drafted, returns to the original three-judge panel and is issued as a unanimous decision. Those who regularly practice before our court should not assume that the only time the other panel members are fully engaged in another judge’s case (that is, one they are not assigned to author) is when they publish either a concurrence or dissent. I spend a considerable amount of time each term working on opinions authored by my colleagues, and they do likewise.

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Stephen Louis Armstrong Dillard (born November 13, 1969 in Nashville, Tennessee) is an appellate court judge and lecturer. In 2010, he was appointed to fill a vacant judgeship on the Georgia Court of Appeals. In 2012, he was elected to a full six-year term, which runs through the end of 2018.

Endnotes

1 Alston & Bird, LLP, supra note 8, at 142-43 (“The Court of Appeals is divided into ‘rotating’ three-judge ‘panels’ ordivisions.’ These three-judge panels ordinarily render the decisions of the Court of Appeals … The Court of Appeals decides cases with panels of more than three judges only in limited circumstances.”).

2 Occasionally, a judge will simply pen a brief handwritten note to the authoring judge, outlining any areas of concern. These notes are treated no differently than a more formal memorandum and they are circulated along with the file for the other judge or judges’ consideration.

3 There is even one extraordinary occasion in which I published an opinion “concurring dubitante in judgment only,” which means that I had serious doubts in that case about not only the reasoning of the majority opinion but also the judgment line. See Nalley v. Langdale, 319 App. 354, 372-73, 734 S.E.2d 908, 922 (2012) (Dillard, J., concurring dubitante in judgment only). This type of concurrence has only been used once in the history of the court of appeals and is affectionately referred to by one of my colleagues as “concurring Dillardtante.” See Alyson M. Palmer, Judges, Lawyers Mull Possible Changes to State Appeals Court, Fulton County Daily Rep., Feb. 13, 2014 (“Dillard said in his concurrence that the two-term rule precluded him ‘from engaging in the type of extended study necessary to achieve a high degree of confidence that my experienced, able colleagues are right.’ McFadden quipped that it was a ‘concurrence Dillardtante,’ adding, ‘if he didn’t pull an all-nighter before he did that, it was pretty darn close.”’).

4 See O.C.G.A. § 15-3-1(c)(1) (“Each division shall hear and determine, independently of the others, the cases assigned to it, except that the division next in line in rotation and a seventh Judge shall participate in the determination of each case in which there is a dissent in the division to which the case was originally assigned.”).

5 The chief judge of the court of appeals, currently the Honorable Herbert E. Phipps, appoints the presiding judges and assigns the remaining judges to serve on one of the court’s four divisions. See O.C.G.A. § 15-3-1(b) (“The court shall sit in divisions composed of three Judges in each division. Two Judges shall constitute a quorum of a division. The assignment of Judges to each division shall be made by the Chief Judge, and the personnel of the divisions shall from time to time be changed in accordance with rules prescribed by the court. The Chief Judge shall designate the Presiding Judges of the divisions and shall, under rules prescribed by the court, distribute the cases among the divisions in such manner as to equalize their work as far
as practicable.”).

6 See O.C.G.A. § 15-3-1(c)(2) (“In all cases which involve one or more questions which, in the opinion of the majority of the Judges of the division or of the two divisions plus a seventh Judge to which a case is assigned, should be passed upon by all the members of the court, the questions may be presented to all the members of the court; and if a majority of all the members of the court decide that the question or questions involved should, in their judgment and discretion, be decided by all the members of the court, the case shall be passed upon by all the members of the court, provided that a majority of the Judges passing upon the case concur in the judgment.”).

7 See Ga. Const. art. VI, § 5, para. 5; see also Ga. art. VI, § 5, para. 4 (authorizing the court of appeals to certify questions to the Georgia Supreme Court to aid its decisional process).