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Law360 (January 3, 2021, 12:02 PM EST) -- Georgia's controversial election process and the pandemic's impact on businesses and the legal community are likely to dominate the Peach State's 2021 legislative session, with lawmakers also set to consider modernizing the courts.
Another issue expected to be raised is whether to change the statutory requirement that both parties must consent before having a case decided by Georgia's new statewide business court.
The regular legislative session is scheduled to begin on Jan. 11 and end on April 2.
A key item on the agenda for Georgia lawmakers will be drawing new boundaries for congressional and state legislative districts in 2021 that reflect the 2020 census results. That likely contentious process could push to the background proposed judicial amendments like the new judgeships requested by state courts or allowing digital court reporting.
Here, Law360 highlights the legislative action Georgia attorneys should be watching in 2021.
New Election Law Would Give Challengers More Teeth
Georgia's election process has long been the subject of litigation in its state and federal courts, but a fresh wave of criticism over the state's Nov. 3 presidential election prompted officials to declare immediate changes for 2021.
Secretary of State Brad Raffensperger announced he is working with Gov. Brian Kemp and Georgia lawmakers on legislation that would make it easier to mount legal challenges to voter eligibility. Raffensperger is also drafting a new requirement for photo identification for mail-in ballots and permissions for the state to intervene if a county fails to properly conduct elections.
"We need to have strict controls that allow for challenges to voters who are suspected of not living where they are registered to vote," Raffensperger said at a press conference. "A simple tightening of the law would give teeth to these challenges and would prevent people from voting illegally."
Raffensperger's office wouldn't elaborate on what the proposed legislation will look like and it is not among the bills that have been prefiled in the Georgia General Assembly. The secretary said Georgia dealt well with the rapid increase of mail-in ballots as a result of the coronavirus pandemic but that the drastic change had raised concerns about election integrity.
Georgia state, federal and appellate judges dismissed several post-election lawsuits against Kemp, Raffensperger and other state election officials, which sought to invalidate Democratic President-elect Joe Biden's 12,000-vote win in Georgia over Republican incumbent Donald Trump.
A request in a Savannah state court by the Georgia Republican Party and Trump's campaign to discount some absentee ballots was also immediately tossed. That lawsuit then sparked conflict of interest claims against their attorneys from Taylor English Duma LLP and Robbins Ross Alloy Belinfante Littlefield LLC, which are defending state election officials in a yearslong case challenging most aspects of Georgia's election system.
Businesses Can Expect Continued COVID-19 Protections
Georgia legislators are expected to extend in 2021 current protections against COVID-19 liability claims for businesses and health facilities that are due to expire in July.
Kemp signed into law in August the Georgia COVID-19 Pandemic Business Safety Act, or Senate Bill 359, which gives businesses and health facilities immunity from coronavirus-related liability claims unless plaintiffs can show gross negligence, willful and wanton misconduct, or reckless or intentional infliction of harm.
Charles F. "Chuck" Palmer and Alexandra S. Peurach of Troutman Pepper Hamilton Sanders LLP, both partners in the firm's Atlanta office who deal with government and regulatory matters, told Law360 there "absolutely" will be legislation introduced in 2021 to keep businesses shielded from pandemic-related litigation.
Palmer and Peurach said there had been about 400 contract claims filed nationwide as a direct result of the pandemic, and in Georgia very few decisions had come from judges in such cases to provide guidance on the state's "fairly undeveloped" common law contractual defenses.
"We think it's a great opportunity for Georgia law, for the common law contractual defense doctrine to be further developed as a result of the pandemic," Peurach said.
Atlanta insurance attorney Austin Bersinger of Bersinger Law told Law360 the state could use the pandemic to drive reform of its claim-handling statute that he said "doesn't have any teeth."
"There's no better time than now given the COVID-19 business interruption claims and given the general need to have effective risk management through insurance coverage policies," Bersinger said.
Some Want It Easier To Move Cases To Statewide Business Court
Since the Georgia State-wide Business Court opened in August, it has had to reject six of 16 cases brought before it solely because one party opposed the venue. That elicited a challenge to the statutory requirement for mutual consent, which critics say unsustainably limits the cases the court can hear.
The court is designed to take complex corporate disputes involving more than $500,000. But it can't accept cases in which a party objects to its jurisdiction unless the statute governing it is changed.
Cases rejected for lack of mutual consent include a software licensing complaint filed in the business court in August by Atlanta-based media giant Cox Communications Inc. that ended up going to Fulton County Superior Court at the defendant's bidding. A three-year fee fight between mortgage lenders and borrowers over $51 million in federally guaranteed loans for housing complexes was also kicked back to Muscogee County state court against the lenders' transfer request and upon the borrowers' opposition.
"This issue has now come to the forefront rather quickly and so what we're seeing now sort of immediately is how few of the cases are garnering the consent from both sides that is required," Peurach of Troutman Pepper told Law360. "I think the business community will do what it can to have legislation proposed as soon as possible, because there was a lot of excitement from the business community about this court."
The business court was also expected to ease the growing backlog of cases in state courts arising from the pandemic, and Peurach said if there was ever a good time for parties to consent to the business court in order to have their cases heard quickly, now would be it.
She said lawmakers could get creative in easing the concerns of those who want the mutual consent rule to prevent unwilling parties being dragged into the business court, by narrowing its subject jurisdiction.
"I personally would support having the two-party consent rule abolished but I understand that there are other attorneys, who practice in different fields than I do, who have concern over the removal of the consent requirement because of the broad jurisdiction of the court," she said. "So I think we might see other mechanisms to protect some of the parties who have concern."
Kamal Ghali of Bondurant Mixson & Elmore LLP was part of a defense team that tried to move an ownership dispute between partners of a hotel company from Lowndes County Superior Court to the business court. Their transfer petition failed on the plaintiff's opposition.
"It does seem like [the mutual consent rule] has really gutted the jurisdiction of the business court," Ghali told Law360. "It's very unclear what the numbers of cases will look like if one party can always take steps to avoid the jurisdiction of the court."
Rocco E. Testani of Eversheds Sutherland (US) LLP, who helped write the court's enabling legislation and is on its rules commission, said he hoped the issue is addressed in the coming legislative session "because what we're left with would be a court that is unlikely to have many cases."
Changes Pushed by Georgia Judges May Take Back Seat
The Georgia Judicial Council wants eight new state superior court judgeships and is pushing for digital court reporting, to simplify the process of appealing to state or superior courts and for lawmakers to adopt the Uniform Mediation Act in Georgia.
Georgia Supreme Court Presiding Justice David E. Nahmias, of the council's legislation committee, said those items are likely to be a "heavy lift" for the Legislature in 2021, since they are highly technical and of little importance to many state lawmakers.
The state's 46-year-old court reporting act was last significantly amended in 1993. Justice Nahmias said during a judicial council meeting that Georgia suffers from an ongoing, accelerating shortage of qualified stenographic court reporters, 70% of whom are over the age of 50.
Attorneys, litigants and court personnel have told the Board of Court Reporting they're having problems getting transcripts from court reporters who retired, got sick or died and have records in unusable formats, according to a report from the council.
"Further, in our current system, court reporters often retain the original evidence from trials, which can lead to incredible difficulties on retrial as reporters retire and move away and original physical evidence becomes lost," the report said.
The council wants the law changed to give judges the choice of when and how to use a digital recording system, to assist rather than replace stenographers.
Council members are also backing changes to what Justice Nahmias called a "very complicated and confusing" process in Georgia for appealing cases from municipal, probate and magistrate courts to state or superior courts. He said the current notice of appeal and certiorari process would be replaced with a single petition for review.
"This will be a heavy lift in the legislative process because it's one of those very technical things that not many legislators care very deeply about, but it really would be a useful change in our system," Justice Nahmias said.
Georgia Court of Appeals Chief Judge Christopher J. McFadden said during the same council meeting that he had worked on the legislative change for several years. The proposal is aimed at bringing the law that governs appellate jurisdictions of the superior courts "into the mid-twentieth century," by adopting parts of appellate process and civil practice laws introduced in the 1960s, he said.
Council members also endorsed the enactment in Georgia of the Uniform Mediation Act and approved eight new judgeships for consideration by the Legislature in 2021.
Judges Want More Time to Clear COVID-19 Backlog Of Criminal Cases
Georgia Supreme Court Chief Justice Harold D. Melton said in his capacity as chair of the Georgia Judicial Council that he will work with legislators in 2021 to address a state law imposing deadlines on criminal cases, given the backlog in courts as a result of the pandemic.
Justice Melton lifted in October a suspension on jury trials that he imposed in March, and is gearing up to release a suspension of Georgia's rule that requires anyone initially refused bond upon arrest to be granted an indictment or bond hearing within 90 days. But he said that rule should not be enforced at the risk of court safety during the pandemic and therefore some leeway is likely needed.
"It's going to take some data gathering to make sure we measure rightly," he said at a council meeting. "There's backlogs that have been built up and we're trying to make sure that we strike the right balance between making sure that these cases are presented in a timely manner but we want to make sure that the courts can actually get to it as well."
Justice Melton said he was also working with lawmakers to change certain in-person requirements for court procedures, such as taking an oath, so they could happen remotely through digital technology during the health crisis.
--Additional reporting by Y. Peter Kang. Editing by Bruce Goldman.
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