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IN RE CRANE

41234.

253 Ga. 667 (1985)

324 S.E.2d 443

IN RE CRANE.

Supreme Court of Georgia.

Decided January 7, 1985.

Attorney(s) appearing for the Case

Maddox & Walsh, Phillip J. Walsh, for appellant.

Dillard & Wolfe, George P. Dillard, Ralph T. Bowden, Jr., Solicitor, Linda Finley, Assistant Solicitor, Joan F. Roach, Albert Sidney Johnson, for appellee.

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 re-examine 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.C. 499, 27 LE2d 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 SE 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.C. 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 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 quasicriminal. It is tried under the rules of civil procedure, rather than under the rules of criminal procedure, and a preponderance of evidence is sufficient to convict the defendant, as against the requirement of removal of any reasonable doubt which prevails in criminal cases.' Hill v. Bartlett, 124 Ga.App. 56 [(183 S.E.2d 80) (1971)]; Renfroe v. State, 104 Ga.App. 362, 365 (121 S.E.2d 811) (1961); Pedigo v. Celanese Corp. of America, 205 Ga. 392 (54 S.E.2d 252) (1949), cert. den. 338 U.S. 937 (70 S.C. 346, 94 LE 578). If there is any substantial evidence authorizing a finding that the party so charged was guilty of contempt, and that is the trial judge's conclusion, his judgment must be affirmed insofar as the sufficiency of the evidence is concerned. Nylen v. Tidwell, 141 Ga.App. 256 (233 S.E.2d 245) (1977)." (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.C. 1499, 59 LE2d 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.C. 1068, 25 LE2d 368) (1970); Gompers v. Bucks Stove &c. Co., 221 U.S. 418, 444 (31 S.C. 492, 55 LE 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, 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.

FootNotes


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, 514 S.W.2d 723, 724 (Ark. 1974); In re Coleman, 12 Cal.3d 568, 116 Cal.Rptr. 381 (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 S2d 157, 160 (Fla. App. 1973); Hawaii Public Employment Relations Bd. v. Hawaii State Teachers Assn., 55 Haw. 386 (520 P.2d 422, 426) (1974); Kay v. Kay, 22 III. 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 SW 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 NW 665, 668) (1933); Prestwood v. Hambrick, 308 S2d 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, 381 A.2d 1201, 1201-2 (N. H. 1978); Matter of Buehrer. 50 N.J. 601 (236 A.2d 592, 600) (1967); Intl. Minerals &c. Corp. v. Local 177, United Stone &c. 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, 241 S.E.2d 409, 412 (S. C. 1978); Burdick v. Marshall, 8 S.D. 308 (66 NW 462, 464) (1896); Strunk v. Lewis Coal Co., 547 S.W.2d 252, 253 (Tenn. Crim. App. 1976); Ex parte Cragg, 133 Tex. Crim. Rep. 118 (109 S.W.2d 479, 481) (1937); State ex rel. Dorrien v. Hazeltine, 82 Wn. 81 (143 P 436, 440) (1914); State v. Bittner, 102 W.Va. 677 (136 SE 202, 206) (1926); State v. Meese, 200 Wisc. 454 (229 NW 31) (1930).
2. E.g., Crary v. Curtis, 199 N.W.2d 319, 322 (Iowa 1972) ("clear, satisfactory and convincing" evidence); Raszler v. Raszler, 80 N.W.2d 535, 539 (N. D. 1956) ("clear and satisfactory" evidence); Whillock v. Whillock, 550 P.2d 558, 560 (Okla. 1976) ("clear and convincing" evidence); State ex rel. Chrisman v. Small, 49 Or. 595 (90 P 1110, 1113) (1907) ("clear and conclusive" evidence); Thomas v. Thomas, 569 P.2d 1119, 1121 (Utah 1977) ("clear and convincing" evidence). Indeed, the courts of these latter states frequently emphasize that a "mere preponderance" of the evidence is inadequate to support a conviction for criminal contempt. See, e.g., Stein v. Municipal Court of Sioux City, 46 N.W.2d 721, 724 (Iowa 1951); "[A] mere preponderance of the evidence in a contempt proceeding is not sufficient, as [the proof] must be of a clear, convincing and satisfactory nature." "It is well settled that each element of a criminal contempt, including the requisite mental state, must be proved beyond a reasonable doubt." Kuhns, The Summary Contempt Power: A Critique and a New Perspective, 88 Yale L. J. 39, 48 (1978).

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