Crane, In re, 41234

• Court: Supreme Court of Georgia
• Writing for the Court: MARSHALL; All the Justices concur, except SMITH
• Citation: 324 S.E.2d 443,253 Ga. 667
• Parties: In re CRANE.
• Docket Number: No. 41234,41234
• Decision Date: 07 January 1985

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324 S.E.2d 443 253 Ga. 667 In re CRANE. No. 41234. Supreme Court of Georgia. Jan. 7, 1985.

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[253 Ga. 670] Phillip J. Walsh, Maddox & Walsh, P.C., Atlanta, for Robert crane.

George P. Dillard, Dillard & Wolfe, P.C., Decatur, Ralph T. Bowden, Jr., Sol., Linda Finley, Asst. Sol., Joan F. Roach, Albert Sidney Johnson, Decatur, for respondent.

[253 Ga. 667] MARSHALL, Presiding Justice.

Robert Crane was found guilty of contempt of the State Court of DeKalb County, and sentenced to 20 days in jail and a $200 fine. There was evidence that Crane made a series of telephone calls to the secretary of the judge of that court and to the deputy clerk of the court, using vulgar and insulting language to the women, because the judge would not speak to him about a default judgment which had been entered against him in that court. The Court of Appeals affirmed the conviction. In re Crane, 171 Ga.App. 31, 318 S.E.2d 709 (1984).

We granted Crane's application for the writ of certiorari to consider whether the judge should have disqualified himself in the trial of this case, and whether this court should reexamine the standard of proof necessary to hold a person in criminal contempt.

1. The ABA Standards, Special Functions of Trial Judge, Standard[253 Ga. 668] 6-4.5, Referral to another judge (1980), provides that a judge in a contempt proceeding should disqualify himself when he "was so integrated with the contempt so as to have contributed to it or was otherwise involved ... [so that] his objectivity could reasonably be questioned." Except in the case of a direct contempt (i.e., committed in the presence of the court), which must be summarily dealt with, a contempt matter should be referred to another judge and handled by him. Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971); Daniel, Ga.Crim.Trial Practice (2d ed.) § 27-4, p. 682; Spruell v. State, 148 Ga.App. 99(1), 250 S.E.2d 807 (1978). "Judges should disqualify themselves in proceedings in which their impartiality might reasonably be questioned, including but not limited to instances where: (a) the judge has a personal bias or prejudice concerning a party or a party's lawyer; ... (d) the judge ...: (iv) is to the judge's knowledge

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likely to be a material witness in the proceeding." Georgia Code of Judicial Conduct, Canon 3, C(1), 251 Ga. 900. A judge may not try a criminal case where he drew the indictment or otherwise participated in the case. Faulkner v. Walker, 36 Ga.App. 636, 137 S.E. 909 (1927). Even in a case involving direct criminal contempt, where the contumacious conduct of an attorney during a trial was directed toward the judge and thereafter the judge became involved in the controversy, it was held that due process required that the attorney's contempt hearing be conducted by another judge. Dowdy v. Palmour, 251 Ga. 135, 304 S.E.2d 52 (1983). "The Federal Constitution, which is of course binding on the states, thus provides a minimum standard, but the state may be more restrictive under its own constitution. Oregon v. Hass, 420 U.S. 714, 719, n. 4 (95 S.Ct. 1215) (1975)." Pope v. City of Atlanta, 240 Ga. 177, 178, n. 1, 240 S.E.2d 241 (1977).

In the case at bar, the judge had been present in the office of his executive secretary of five years when, or after, Mrs. Crane had come in and demanded to see the judge. At the contempt hearing, it is apparent that the judge had had communication, either directly or indirectly, with the contemner and his wife, as well as with the judge's executive secretary, and it is apparent from the record that he felt that the contemner had done the contumacious acts with which he was charged. The judge's participation in the matter went beyond his mere exercise of discretion to ask questions of a witness. See Williams v. State, 250 Ga. 664(2), 300 S.E.2d 685 (1983); Jarrard v. State, 163 Ga.App. 99, 101(3), 292 S.E.2d 488 (1982); OCGA §§ 9-10-7, 17-8-55. His impartiality might reasonably be questioned by reason of his knowledge that he was likely to be a material witness in the proceeding (which, in fact, he was), the fact that the contumacious conduct was directed toward the judge, and the fact that he was so involved in the controversy and integrated with the contempt so as to have contributed[253 Ga. 669] to it or was otherwise involved so that his objectivity could reasonably be questioned. Accordingly, the judge should have disqualified himself in the trial of the contempt proceeding.

2. With regard to the standard of proof necessary to hold a person in criminal contempt, our courts have heretofore held: " '(T)he matter is not, strictly speaking, a criminal case, but is only quasi-criminal. It is tried under the rules of civil procedure, rather than under the rules of criminal procedure, and a preponderance of evidence is...