In Re Herring
In Re Herring
Concurring Opinion
concurring specially.
I agree with the result reached by the majority. However, I am compelled to write separately to remind trial judges of the importance of making their findings in cases such as this on the record during the hearing or proceedings, particularly when those findings pertain to nonverbal matters such as tone and demeanor. This allows the contemnor an opportunity to respond on the record, and allows this court to make a proper review of what transpired below. Without the necessary record having been made, I, unlike the majority, cannot defer to the trial court’s after-the-fact findings which appear nowhere in the record other than the trial court’s contempt order. But I do
Opinion of the Court
Attorney Timothy T. Herring appeals from an order of the Superior Court of Gwinnett County finding him summarily in criminal contempt of court for contumacious behavior in the presence of the court and fining him $250. In addition, Herring has filed a motion to strike “the appearance and brief’ of the superior court judge, who made a qualified appearance before this Court requesting clarification as to his duties in a contempt appeal and also filed a “Brief of Appellee” in order to forestall the wrongful discharge of his potential appellate obligations prior to receipt of such clarification. We find as follows.
1. Contumacious conduct occurring directly in front of the judge is punishable as direct criminal contempt of court.
2. Contempt of court, in its broad sense, means disregard for or disobedience of the order or command of the court; this also includes the interruption of court proceedings.
In this case, the evidence of record viewed to support the conclusions below shows that Herring failed to appear at the 9:15 a.m. call of his client’s case in Gwinnett Superior Court; he failed to file a conflict letter with regard thereto; he failed to notify the court of his unavailability; he failed to notify his client that he would not be in court; after being haled into court to explain his conduct, he failed to acknowledge to the court that he had not complied with Uniform Superior Court Rule 17.1 (B) regarding notification of conflicts and had, thus, inconvenienced both the court and his client; and, lastly, he argued to the court that, under Rule 17.1 (B), he did not have to file a conflict letter, because his court cases scheduled in Walton, Gwinnett, and Fulton Counties were set for 8:30 a.m., 9:15 a.m., and 10:00 a.m., respectively, and “[t]he Rule says if you have court at the same time, you have a conflict.”
We defer to the court’s conclusion that Herring’s tone and demeanor when arguing that no conflict existed under Rule 17.1 (B) were sufficiently disrespectful and insincere so as to entail contumacious conduct, since a determination of credibility is the sole responsibility of the trier of fact. Certainly, as to the substance of Herring’s argument, the impossibility of making court appearances in Walton County, Gwinnett County, and Fulton County within an hour and a half time span would militate in favor of the trial court’s conclusion. And, as for our part, we note that Rule 17.1 (B) was amended years ago to remove the “at the same time” language. Under Rule 17.1 (B), an attorney must give a prompt conflict notice when scheduled on a date certain “to appear in two or more courts,”
In addition, we disagree with Herring’s characterization that his colloquy with the court prior to the finding of contempt reflected the judge’s “personal” involvement. This was not an instance where “the announcement of punishment is delayed, and where the contumacious conduct was directed toward the judge or where the judge reacted to the contumacious conduct in such a manner as to become involved in the controversy.”
Judgment affirmed.
In re Shook, 254 Ga. App. 706 (563 SE2d 435) (2002).
See In re Irvin, 254 Ga. 251, 254, 256 (2) (328 SE2d 215) (1985).
In re Bergin, 178 Ga. App. 454, 455 (343 SE2d 743) (1986).
OCGA § 15-1-3 (1).
(Emphasis supplied.)
Rule 17.1 (B). See In re Holt, 262 Ga. App. 730, 732 (1) (a) (586 SE2d 414) (2003).
In re Bergin, supra; accord In re Omole, 258 Ga. App. 725, 727 (1) (574 SE2d 912) (2002); In re Brant, 230 Ga. App. 283, 284 (1) (496 SE2d 321) (1998).
(Citation and footnote omitted.) In re Burgar, 264 Ga. App. 92,94 (589 SE2d 679) (2003).
In re Willis, 259 Ga. App. 5, 7 (2) (576 SE2d 22) (2002).
Reference
- Full Case Name
- In Re HERRING
- Cited By
- 9 cases
- Status
- Published