Crane, In re
Decision Date | 07 January 1985 |
Docket Number | No. 41234,41234 |
Citation | 324 S.E.2d 443,253 Ga. 667 |
Parties | In re CRANE. |
Court | Georgia Supreme Court |
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.
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 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 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). 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 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: " (Emphases supplied.) Farmer v. Holton, 146 Ga.App. 102, 108(3), 245 S.E.2d 457 (1978), cert. den. 440 U.S. 958, 99 S.Ct. 1499, 59 L.Ed.2d 771 (1979).
Thirty-four states and the District of Columbia require proof beyond a reasonable doubt in criminal contempt cases. 1 The remaining states require higher standards of proof than that required in Georgia. 2 Given that the result of a criminal-contempt conviction is to deny the contemner his liberty and the levy of a penal fine, it is a denial of a defendant's right to due process of law under the 14th Amendment of the U.S. Constitution, the Georgia Constitution, and OCGA § 24-4-5, to fail to require proof beyond a reasonable doubt in a criminal-contempt prosecution. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 444, 31 S.Ct. 492, 55 L.Ed. 797 (1911).
After a consideration of the majority view as set forth in the above authorities, we have concluded that the standard of proof in criminal-contempt cases is the beyond-reasonable-doubt standard, and that the preponderance-of-evidence (civil) standard will no longer be followed in this state. Pedigo v. Celanese Corp. of America, 205 Ga. 392, 54 S.E.2d 252, supra (3), and other cases holding to the contrary are hereby overruled.
Accordingly, the judgment of contempt is reversed and the case is remanded to the trial court for a retrial in accordance with this opinion.
Judgment reversed, case remanded.
All the Justices concur, except SMITH, J., not participating.
1 See e.g., Continental Ins. Cos. v. Bayless & Roberts, Inc., 548 P.2d 398, 407 (Alas.1976); State v. Cohen, 15 Ariz.App. 436, 489 P.2d 283, 287 (1971); Howell v. State, 257 Ark. 134, 514 S.W.2d 723, 724 (1974); In re Coleman, 12 Cal.3d 568, 116 Cal.Rptr. 381, 384, 526 P.2d 533, 536 (1974); In re Pechnick, 128 Colo. 177, 261 P.2d 504, 507-8 (1953); City of Wilmington v. General Teamsters Local Union 326, 321 A.2d 123, 126 (Del.1974); Matter of Carter, 373 A.2d 907, 909 (D.C.1977); Turner v. State, 283 So.2d 157, 160 (Fla.App.1973); Hawaii Public Employment Relations Bd. v. Hawaii State Teachers Assn., 55 Hawaii 386, 520 P.2d 422, 426 (1974); Kay v. Kay, 22 Ill.App.3d 530, 318 N.E.2d 9, 10 (1974); Alster v. Allen, 174 Kan. 489, 77 P.2d 960, 966 (1938); Brannon v. Commonwealth, 162 Ky. 350, 172 S.W. 703, 706 (1915); State v. Roll, 267 Md. 714, 298 A.2d 867, 876 (1973); Shaw v. Commonwealth, 354 Mass. 583, 238 N.E.2d 876, 878 (1968); Fraternal Order of Police v. Kalamazoo County, 82 Mich.App. 312, 266 N.W.2d 805, 807 (1978), accord: see Jaikins v. Jaikins, 12 Mich.App. 115, 162 N.W.2d 325, 329 (1968). But see Detroit Bd. of Educ. v. Detroit Fed. of Teachers, 55 Mich.App. 499, 223 N.W.2d 23 (1974); People v. Kurz, 35 Mich.App. 643, 192 N.W.2d 594 (1971); State v. Binder, 190 Minn. 305, 251 N.W. 665, 668 (1933); Prestwood v. Hambrick, 308 So.2d 82, 84 (Miss.1975); State ex rel. Wendt v. Journey, 492 S.W.2d 861, 864 (Mo.App.1973); State ex rel. Tague v. Dist. Ct., 100 Mont. 383, 47 P.2d 649, 651 (1935); Paasch v. Brown, 199 Neb. 683, 260 N.W.2d 612, 615 (1977); Kellar v. Eighth Judicial Dist. Ct., 86 Nev. 445, 470 P.2d 434, 436-7 (1970); State v. Blaisdell, 118 N.H. 5, 381 A.2d 1201, 1201-2 (1978); Matter of Buehrer, 50 N.J. 601, 236 A.2d 592, 600 (1967); Internatl. Minerals & Chemical Corp. v. Local 177, United Stone & Allied Products Workers, 74 N.M. 195, 392 P.2d 343, 346 (1964); State University of N.Y. v. Denton, 35 A.D.2d 176, 316 N.Y.S.2d 297, 302 (1970); State v. Sherow, 101 Ohio App. 169, 138 N.E.2d 444, 447 (1956); Matter of Johnson, 467 Pa. 552, 359 A.2d 739, 742 (1976); State v. Bowers, 270 S.C. 124, 241 S.E.2d 409, 412 (S.C.1978); Burdick v. Marshall, 8 S.D. 308, 66 N.W. 462, 464 (1896); ...
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9 Contempt
...116 SE2d 288 (1980)]. E. Judge must not personally react or inject self in controversy [Taylor v. Hayes, 418 US 488 (1974); In re Crane, 253 Ga. 667, 324 SE2d 443 (1985)]. NOTE - If judge not able to remain impersonal, appoint another judge to hear evidence in later full hearing. F. Order m......
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9 Contempt
...116 SE2d 288 (1980)]. E. Judge must not personally react or inject self in controversy [Taylor v. Hayes, 418 US 488 (1974); In re Crane, 253 Ga. 667, 324 SE2d 443 (1985)]. NOTE - If judge not able to remain impersonal, appoint another judge to hear evidence in later full hearing. F. Order m......
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9 Contempt
...116 SE2d 288 (1980)]. E. Judge must not personally react or inject self in controversy [Taylor v. Hayes, 418 US 488 (1974); In re Crane, 253 Ga. 667, 324 SE2d 443 (1985)]. NOTE - If judge not able to remain impersonal, appoint another judge to hear evidence in later full hearing. F. Order m......
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9 Contempt
...116 SE2d 288 (1980)]. E. Judge must not personally react or inject self in controversy [Taylor v. Hayes, 418 US 488 (1974); In re Crane, 253 Ga. 667, 324 SE2d 443 (1985)]. NOTE - If judge not able to remain impersonal, appoint another judge to hear evidence in later full hearing. F. Order m......