Mann v. State, 59340
| Decision Date | 02 July 1980 |
| Docket Number | No. 59340,59340 |
| Parties | MANN v. The STATE. |
| Court | Georgia Court of Appeals |
James N. Finkelstein, Albany, for appellant.
William S. Lee, Dist. Atty., Hobart M. Hind, Asst. Dist. Atty., for appellee.
Appellant pled guilty to a charge of making terroristic threats and on July 21, 1978, received a five-year sentence to be served on probation, conditioned upon payment of a fine and regular monthly reporting to his probation officer. On October 17, 1979, appellant was served with a petition for revocation of probation in which his probation officer alleged that "(appellant) has not reported since the date of his sentence, July 21, 1978, and has never made a payment of his fine." On October 23, 1979, a hearing was held. On that date the trial court ordered that appellant's original sentence of probation be modified to include as condition thereof that he "take the PSE (Psychological Stress Evaluator) test every two (2) months." Also, the trial court ordered that appellant's probation be revoked and that he serve one year of his five-year sentence in jail. Appellant appeals.
1. Several enumerations of error relate to appellant's motion to disqualify the trial judge from presiding at the revocation hearing. The motion was denied. The stated ground for the motion was the trial judge's alleged bias and prejudice against appellant's counsel which would prevent the judge from being impartial towards his client. This is not a ground for judicial disqualification. "Under Canon 3 C. (1)(a) of (the Georgia Code of Judicial Conduct), a judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where he has a personal bias or prejudice concerning a party. . . . consequently, where bias or prejudice of a judge has been shown concerning a party, it is error for the judge to hear and decide the case." (Emphasis supplied.) Savage v. Savage, 234 Ga. 853, 856, 218 S.E.2d 568, 571 (1975). Any alleged prejudice or bias against the party's attorney rather than the party himself is not, per se, grounds for disqualification. If it were, an attorney who felt himself to be the object of such bias would be the living embodiment of a limitation on the trial judge's power and responsibility to hear cases within the jurisdiction of the judge's court. If the attorney and his relationship with the judge is determinative of whether or not that trial judge is "qualified" to hear cases which are otherwise within his court's jurisdiction, that attorney, depending upon whether or not he moved to disqualify on these grounds, would have the ultimate power to confer upon or deny to the judge this jurisdictional power and authority. If this were so, in some circumstances it could be in the attorney's "interest" to cultivate the judge's prejudice so as to avoid appearance before him. Such an attorney could offer clients not only legal advice and representation but also their "choice" of judges. Obviously this form of "judge shopping" is not a power which the bar can exercise over the bench of this state. The solution to such a problem is that an attorney who fears that his client may suffer because of the judge's prejudice against counsel should decline the employment or should withdraw from the representation as being in the best interest of the client. We note that during oral argument in this court, appellant's counsel stated that he was employed by appellant-not appointed by the court; and at the time of his employment appellant's attorney harbored the same beliefs concerning the trial court's "prejudice" as those which were the basis for the motion that the trial judge disqualify himself.
The recent Supreme Court decision in State v. Fleming, 245 Ga. 700, 267 S.E.2d 207 (1980), does not, in our opinion, require a different result. In Fleming, it was held that "when a trial judge in a case pending in that court is presented with a motion to recuse accompanied by an affidavit, the judge's duty will be limited to passing upon the legal sufficiency of the affidavit, and if, assuming all the facts alleged in the affidavit to be true, recusal would be warranted, then another judge must be assigned to hear the motion to recuse." Fleming, supra, 702, 267 S.E.2d 209.
However, in the instant case, assuming the truth of all facts alleged by the appellant, the grounds urged as a basis for disqualification-unlike those advanced in Fleming -are legally insufficient. Therefore, the Fleming requirement that the motion be heard by another judge was not activated. The district attorney's affidavit in Fleming submitted in support of the motion to disqualify contained some twenty-nine allegations of prejudicial actions taken by the trial judge against the district attorney in the pending case. Under such circumstances, judicial prejudice against counsel, who is acting as the legal representative of a party, could vicariously result in judicial prejudice against that represented party and his case. In such a case the judge's impartiality might reasonably be questioned. Here, however, appellant's motion to disqualify (which was unsupported by an affidavit) merely alleged prejudice based upon circumstances which had nothing whatsoever to do with actions taken by the trial judge against appellant's counsel during the judge's consideration of the pending revocation petition. All allegations of judicial prejudice against appellant's counsel were based upon circumstances and events which had absolutely no connection at all with counsel's representation of appellant at the revocation hearing. For such circumstances to amount to grounds for disqualification it would have to be presumed that judicial prejudice against counsel will automatically result in prejudice to the party and to his pending case. We do not find such allegations sufficient reason to reasonably question the judge's impartiality toward the party and his case.
We do not believe Fleming stands for the proposition that allegations of judicial prejudice against counsel based upon events or circumstances occurring outside the ambit of the then pending action are sufficient grounds for disqualification of the judge. To hold that such allegations of judicial prejudice against counsel based upon circumstances of no relevance to the pending case is a sufficient ground for disqualification would mean, in effect, that an attorney, who represents numerous clients in various civil and criminal matters, can transfer this "prejudice" from client to client so as to disqualify the judge from hearing the cases of parties against whom no bias is shown but who merely happen to be represented by this counsel. This could, we fear, result in an unfortunate potential "judge shopping" situation, seriously undercutting the administration of justice in this state. We, therefore, decline...
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