Garland v. State

Decision Date09 January 1985
Docket NumberNo. 41422,41422
Citation325 S.E.2d 131,253 Ga. 789
PartiesGARLAND v. The STATE.
CourtGeorgia Supreme Court

Albert M. Pearson III, Athens, Bobby Lee Cook, Cook, Cook & Palmour, Summerville, Steven H. Sadow, Garland, Nuckolls & Catts, Atlanta, for Edward T.M. Garland.

William U. Norwood, III, Thomasville, for the State.

Martin & Young. John R. Martin, amicus curiae.

PER CURIAM.

Appellant Garland, an attorney, was convicted of criminal contempt in the Superior Court of Baker County and fined $500. The conviction was affirmed by the Court of Appeals. Garland v. State, 171 Ga.App. 519, 320 S.E.2d 548 (1984). We granted cert to answer two questions: (1) Whether the preponderance of the evidence standard of proof may be constitutionally applied in cases of criminal contempt; and (2) whether the out-of-court statements made in this case constituted criminal contempt.

Garland was retained as counsel for Stephen Brown, a defendant in a cocaine trafficking case in Baker County. On August 5, 1983, Judge Wallace Cato ordered that Brown be transferred to a jail in another county. An associate of Garland obtained a letter from a physician who had examined the prisoner nearly three weeks earlier indicating that the transfer would be harmful to his health. Although addressed to the court, the letter was delivered to the sheriff's office. On August 10, 1983, the prisoner was freed from the jail by armed intruders. Following a hearing August 18 and 19, 1983, as to whether the sheriff should be held in contempt for failing to transfer the prisoner, Judge Cato found that the propriety of the conduct of appellant and his associate had been "reasonably called into question." Neither attorney was present at this hearing. Before a scheduled pretrial motion in the Brown case on September 2, 1983, Judge Cato asked that both attorneys be sworn and questioned them extensively as to their possible involvement in the escape. The judge then announced that "the propriety of the conduct of both creates some grave questions in this court's mind which we judge inappropriate to ... pursue at this time." Appellant was not given an opportunity to be heard. The judge then recused himself from the Brown case, ordering a continuance of the pretrial motion hearing.

A short time after the hearing was continued appellant was introduced to a reporter from the Albany Herald at the office of another attorney. He made the following remarks to this reporter about the hearing and the actions of Judge Cato: "That the trial court had conducted 'a sham proceeding'; that the trial court's 'conducting an inquisition was unlawful and improper'; that '[t]his is a political effort to turn a tragedy into political hay for' the trial judge and that 'it stinks'; that the trial court's actions had 'violated the canons of judicial ethics, constitutes slander of the rankest order....'; that the trial court had 'not one fact to back up his scandalous accusations....'; that when he 'cool[ed] down, [he was] going to decide whether to file a complaint with the State Judicial Commission about the [judge's] conduct'; that the trial court had required him and his associate to attend the scheduled hearing on the pre-trial motions 'knowing full well [the judge] would disqualify' himself in the case; that he was 'mad and ... resent[ed] it'; that there was 'no misconduct. There is absolutely no evidence of impropriety by any attorney in this case to [his] knowledge....' " Garland v. State, supra at 520-21, 320 S.E.2d 548.

After these remarks were published in the newspaper appellant was ordered to show cause why he should not be held in contempt. He was held in contempt following a hearing conducted by another judge. In affirming that order the Court of Appeals held his comments impugned the judgment and integrity of the trial court with regard to the investigation into appellant's conduct. The Court of Appeals indicated that comments impugning the trial court's integrity in regard to an act taken in its official capacity are beyond the bounds of constitutionally protected speech because they constitute "a contumacious interference with or an obstruction of the administration of justice." Id. at 523, 320 S.E.2d 548. The Court of Appeals also concluded that under Pedigo v. Celanese Corp., 205 Ga. 392, 54 S.E.2d 252 (1949), application of the preponderance-of-the-evidence standard rather than the beyond-a-reasonable-doubt standard was applicable to the evidence in a contempt case.

1. At the outset we note that the evidence in any criminal contempt case must show that the defendant is guilty beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). See also In re Crane, 253 Ga. 667, 324 S.E.2d 443 (1985). "Criminal contempt is a crime in the ordinary sense; it is a violation of the law, a public wrong which is punishable by fine or imprisonment or both." Bloom v. Illinois, 391 U.S. 194, 201, 88 S.Ct. 1477, 1481, 20 L.Ed.2d 522 (1968); Pedigo v. Celanese Corp. of America, 205 Ga. 392, 54 S.E.2d 252 (1949), is in conflict with these principles. We hereby overrule that case and hold that in all criminal contempt cases the evidence of the contempt must be beyond a reasonable doubt.

2. We turn now to a question of whether Garland was guilty of contempt beyond a reasonable doubt. Statements made in the presence of the court or outside of the presence of the court are protected by the guarantee of freedom of speech of the First and Fourteenth Amendments of the United States Constitution and by the Georgia Constitution (Art. I, Sec. I, Para. V). Contemptuous statements are not so protected. The test applied to determine whether a statement is contemptuous is whether there is a clear and present danger to orderly administration of justice. Wood v. Georgia, 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962). "[N]either 'inherent tendency' nor 'reasonable tendency' is enough to justify a restriction of free expression." Bridges v. California, 314 U.S. 252, 273, 62 S.Ct. 190, 198, 86 L.Ed.2d 192 (1941).

The identification of a statement as constituting clear and present danger to the orderly administration of justice can be made only after taking into account the setting in which the statement is made. The possible settings are numerous, but four broad ones come to mind immediately: statements made in court, statements made out of the court but while a judicial proceeding is pending, statements made out of the court during the pendency of a judicial proceeding but concerning a judge who is no longer involved in the proceeding, and statements made out of the court...

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27 cases
  • Lafferty v. Jones
    • United States
    • Connecticut Supreme Court
    • 23 Julio 2020
    ...Ed. 1295 (1946) (publishers of editorials and cartoon critical of judges did not pose clear and present danger); Garland v. State , 253 Ga. 789, 789, 791, 325 S.E.2d 131 (1985) (reversing contempt conviction of attorney whose remarks criticizing judge for violating judicial ethics and condu......
  • In re Jefferson
    • United States
    • Georgia Court of Appeals
    • 30 Marzo 2007
    ...is whether [the statement represents] a clear and present danger to [the] orderly administration of justice." Garland v. State, 253 Ga. 789, 790(2), 325 S.E.2d 131 (1985). Jefferson accused the judge of (a) "gross interference" with her efforts to represent her client and (b) being "biased"......
  • Irvin, In re
    • United States
    • Georgia Supreme Court
    • 4 Abril 1985
    ...court held "that the standard of proof in criminal-contempt cases is the beyond-reasonable-doubt standard." See, Garland v. State, 253 Ga. 789, 790, 325 S.E.2d 131 (1985). We now hold that on appeal of a criminal contempt conviction the appropriate standard of appellate review is "whether a......
  • In re Jefferson
    • United States
    • Georgia Supreme Court
    • 25 Febrero 2008
    ...of contempt power is well recognized and must be preserved if the courts are to perform their public duty." Garland v. State of Georgia, 253 Ga. 789, 791(2), 325 S.E.2d 131 (1985).1 We have previously held that statements by counsel may be found contemptuous where they pose a "clear and pre......
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8 books & journal articles
  • 9 Contempt
    • United States
    • State Bar of Georgia Georgia Benchbook 2018 edition
    • Invalid date
    ...with the court's administration of justice must actually result or be imminently threatened [Wood v. Ga., 370 U.S. 375 (1962); Garland, 253 Ga. 789, 325 SE2d 131 (1985)]. C. Courtroom Advocacy Test: "[A]ttorney may be held in contempt for statements made during courtroom proceedings only af......
  • 9 Contempt
    • United States
    • State Bar of Georgia Georgia Benchbook 2017 edition
    • Invalid date
    ...with the court's administration of justice must actually result or be imminently threatened [Wood v. Ga., 370 U.S. 375 (1962); Garland, 253 Ga. 789, 325 SE2d 131 (1985)]. C. Courtroom Advocacy Test: "[A]ttorney may be held in contempt for statements made during courtroom proceedings only af......
  • Criticizing Judges: a Lawyer's Professional Responsibility
    • United States
    • University of Georgia School of Law Georgia Law Review (FC Access) No. 56-1, 2021
    • Invalid date
    ...before the court may be sanctioned only if they pose a clear and present danger to the administration of justice."); Garland v. State, 325 S.E.2d 131, 133 (Ga. 1985) (finding that contemptuous statements are not protected by the U.S. Constitution, nor by the Georgia Constitution, and that "......
  • Legal Ethics - Patrick Emery Longan
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 59-1, September 2007
    • Invalid date
    ...at 351 (brackets in original). 302. Id. 303. Id. 304. Id. at 879-80, 645 S.E.2d at 352 (brackets in original) (quoting Garland v. State, 253 Ga. 789, 790, 325 S.E.2d 131, 133 (1985)). 305. Id. at 881, 645 S.E.2d at 353 (Bernes, J., concurring in part & dissenting in part). 306. Id. at 885, ......
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