Petition — Friedman v. Harbold

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

79-902

Naan nE

HIRSCH FRIEDMAN,

Petitioner,

Vs.

MARY ELLEN HARBOLD,

Respondent.

WRIT OF CERTIORARI

TO THE

GEORGIA COURT OF APPEALS

SPENCER J. Krupp, Attorney

HirscH FRIEDMAN, P.C.

3179 Maple Drive, N.E.

Atlanta, GA 30305

Attorney for Petitioner

i ta Na, mmm

INDEX

TABLE OF CONTENTS

Page

es kaa pan cease en 1

ES, 1

QUESTIONS PRESENTED..................... 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED.................... 4

STATEMENT OF THE CASE................... 4

REASONS FOR GRANTING THE WRIT:

I. THE FAILURE TO AFFORD PETITIONER

A NON-SUMMARY HEARING BEFORE

A JUDGE OTHER THAN THE JUDGE

ISSUING THE CONTEMPT CITATION

DENIED PETITIONER DUE PROCESS

Data Sp ae eran as ere 7

II. THE TRIAL COURT’S ATTEMPT TO

HOLD PETITIONER TO A HIGHER

STANDARD OF CULPABILITY THAN

ANY OTHER WITNESS DENIED HIM

EQUAL PROTECTION OF THE LAW6S.... 8,9

Ill. THE CONTEMPT CONVICTION, PRED-

ICATED UPON AN ISOLATED

STATEMENT NOT POSING A CLEAR

AND PRESENT DANGER OF INTER-

FERING WITH THE ORDERLY

ADMINISTRATION OF JUSTICE

DENIED PETITIONER HIS RIGHTS

TO FREEDOM OF SPEECH AND

eee is sec hucdes causes. 10

TABLE OF CONTENTS (Continued)

Page

IV. THE TRIAL COURT'S FAILURE TO

ISSUE FINDINGS OF FACT AND

CONCLUSIONS OF LAW VIOLATED

PETITIONER’S RIGHT TO DUE PROCESS

er GG 4G he hiv ewre keels eV ee 14

I ee aU 5 Wk u's hp 9 40 bods Red nye 16

CERTIFICATE OF SERVICE................... 17

INDEX TO APPENDICES

EE a iio REN LEWC CEP EWN og 0% aes A. 1

os nied bb Ke eV v ede seas cee peep es A. 4

PO 8 3 Gk MARRS Saenger rane rere ike eRe WAS A. 5

I UN Sik wird x bins eis ain 4 OO Kaya pe ee es A. 6

isk pane poke MRA ES oy ea serene A. 13

I CN ro EN ee va bee se Sev e's oy A. 14

il

TABLE OF CITATIONS

Page

Bridges v. California, 314 U.S. 252................. 14

Brown v. Hames, 131 Ga. App. 148,

5k By Ry |. alsa nee ie ee ep 15

Cabot v. Yarbourough, 27 Ga. 476. ...........00005- 7

Carson v. Georgia, 146 Ga. 726(6)...............05. 15

Carter v. State, 129 Ga. App. 536, 537,

ee as eee siecs ceabeaw en’ 15

Crate #.. ria; SEE UID. BBE 6 coe ie ns ce cee cse 14

Farmer v. Holton, 146 Ga. App. 102, 245 S.E.

A Ah, wires cach evo e Res ee 0a 8

Garland v. State, 99 Ga. App. 826,

SPU tres Kanes 15

Harrell et al. v. Word, et al., 54 Ga. 650........... 12, 13

itt Be: meee, BP OB TSR.. ok i eo ve ce esi 7

Mayberry v. Pennsylvania, 400 U.S. 455. ........... 7,8

Offutt v. United States, 348 U.S. 11................ 7,8

Penneamp v. Florida, 328 U.S. 331................ 14

Townsend v. United States, 54 Ga. App. 627,

oS & RR aS Secor ee Pere ee eee 9

Wood v. Georgie, S70 U.S. S76... 6. ee ewe. 12, 14

CONSTITUTIONAL PROVISIONS

United States Constitution:

PAE e PRITAM «0s nck s vewavncacces 3, 4, 10

FOURTEENTH AMENDMENT......... 2, 3, 4, 9

iii

STATUTORY PROVISIONS

Page

Georgia Code Sections:

IN iis isscec 5s oak ee 2, 3, 4

Bs WARK Haine Se ae ben b ewes dees. eee 3, 4, 10

re Tee er Met ee 2, 3,4, 9

DG iK.si4 wns s ox eieke cebeael ae .2, 4, 9, 13

WA... .. ee ee 3, 4, 14

iv

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

SOPs osciiasinie

HIRSCH FRIEDMAN,

Petitioner,

VS.

MARY ELLEN HARBOLD,

Respondent.

WRIT OF CERTIORARI

TO THE

GEORGIA COURT OF APPEALS

Petitioner respectfully prays that a Writ of Certiorari

issue to review the opinion and judgment of the Georgia

Court of Appeals entered in the above case on May 29,

1979.

OPINION BELOW

The opinion of the Court of Appeals is reported at 150

Ga. App. 482. ,

JURISDICTION

" The judgment of the Georgia Court of Appeals (Appen-

dix A, infra, page A. 1) was entered on May 29, 1979. A

timely Petition for Rehearing was denied on June 28,

1979 (Appendix B, infra, page A. 5). The judgment of the

1

2

Supreme Court of Georgia denying Petitioner’s Applica-

tion For A Writ Of Certiorari (Appendix C, infra, page

A. 6), was entered on September 4, 1979. The transcript

of the contempt hearing is attached hereto (Appendix D,

infra, page A. 6). The jurisdiction of this court is invoked

under 28 United States Code Section 1257(3).

QUESTIONS PRESENTED

An individual subject to a non-summary hearing on a

contempt charge has the right to have the hearing before

a Judge other than tue one issuing the citation. The trial

court’s failure to afford Petitioner a neutral forum denied

him his right to due process of the law as guaranteed by

the 14th Amendment of the United States Constitution

and Section 2-101 of the Georgia Code. Further, the Peti-

tioner should never have been treated any differently be-

cause he was an attorney since at the time of the alleged

contemptuous conduct, he was merely a defendant/wit-

ness, and while he may have retained his role as an officer

of the court, he was not acting as such in an “‘official trans-

action” so as to fall within the purview of the contempt

statute. Georgia Code Section 24-105. This disparate

treatment constituted a violation of Petitioner’s right to

equal protection of the laws under the guarantees of the

United States Constitution’s 14th Amendment and

Section 2-203 of the Georgia Code. Further, the Peti-

tioner’s constitutional guarantees of freedom of speech

and expression were violated when he was cited for con-

tempt emanating from an isolated statement made during

the course of an otherwise orderly trial. Finally, the trial

court violated Petitioner’s rights to due process of the

law by failing to place its findings in writing so the appel-

late courts would have an adequate standard of review

3

under Georgia Code Section 81A-152. Consequently, the

questions presented herein are:

1.

Has the Petitioner been denied due process of the law

under the Fourteenth Amendment to the United States

Cunstitution and Section 2-101 of the Georgia Code, as a

result of his non-summary contempt hearing being heard

before the same Judge issuing the citation?

2.

Has the Petitioner been denied equal protection of the

laws under the Fourteenth Amendment of the United

States Constitution and Section 2-203 of the Georgia

Code when he was held to a higher standard of culpability

than any other witness under the same or similar cir-

cumstances?

3.

Has the Petitioner been denied his Constitutional guar-

antees of free speech and expression under the First

Amendment to the United States Constitution and

Georgia Code Section 2-104, when he was punished for an

isolated statement made during the course of an other- |

wise orderly trial and where it was shown that his in-

court statement was largely the result of an ongoing illness

compounded by Respondent’s harrassment and where

this conduct posed no clear and present danger to the

orderly administration of justice?

4,

Has the Petitioner been denied due process of the law

guaranteed by both the Federal and State Constitutions,

when the trial court failed to specifically find facts and

4

conclude issues of law so as to make the judgment so

vague and ambiguous as to be void.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The constitutional provisions involved herein are the

pertinent portions of the due process and equal protec-

tion clauses of the Fourteenth Amendment to the United

States Constitution and the guarantees of free speech and

expression guaranteed under the First Amendment to

said Constitution, as well as the corresponding sections

of the Georgia State Constitution as expressed in Sec-

tions 2-101, 2-104, 2-203 of the Georgia Code, respectively.

Other statutory provisions involved herein are Georgia

Code Sections 24-105 and 81A-152. These provisions are

printed in Appendix F, attached hereto.

STATEMENT OF THE CASE

The decision and judgment of the Georgia Court of

Appeals herein complained of, arises out of the following

factual situation:

The original lawsuit was one for damages allegedly

caused by a dog bite sustained by Respondent on the 15th

day of November, 1976. Defendant DEBORAH L.

BLACKMAN owned the dog, filed no defense to the case

and was unrepresented by counsel; but appeared upon

being subpoenaed as a witness for Respondent. Said De-

fendant cared for the home and children of Petitioner

HIRSCH FRIEDMAN, and lived in the premises owned

by Petitioner.

Petitioner was represented by counsel provided by

State Farm Insurance Company in behalf of a home-

5

owner’s policy issued to him. Defendant DEBORAH L.

BLACKMAN without counsel admitted to the jury her

liability, but stated she did not have the money to pay

for any damages. Petitioner alleged that he had directed

Defendant DEBORAH L. BLACKMAN to remove her

dog from the premises prior to the alleged incident.

Petitioner by profession is a practicing attorney and a

member in good standing of the State Bar of Georgia.

Although same has no bearing upon the main action,

same does have relevance to the instant Petition for the

holding of said Petitioner in contempt of court.

During the trial as to the issue of whether or not

Petitioner would be liable because the dog was present

on the premises owned by him, Respondent, MARY

ELLEN HARBOLD during the questioning of Petitioner

‘‘, . was making faces . . .”’ at Petitioner while he was on

the witness stand (T-4). Additionally, Petitioner stated

during the hearing on the contempt charge that iie was

diagnosed as suffering from an illness called hypoglycema

(T-5), and a thyroid dysfunction (T-5), and that these

illnesses affected him emotionally as a result of his being

placed on a special diet (T-5). Nothing to the contrary

was stated to the court, and the trial judge accepted

same, stating that he gave consideration to Petitioner’s

statement and was sympathetic to the situation, and not-

withstanding same found Petitioner guilty of contempt

of court (T-8) based upon the fact that during the time

Petitioner was being questioned and during the same

time that Respondent was making faces at Petitioner the

following colloquy between Respondent’s counsel and

Petitioner occurred:

“MR. BURNETT: Okay. And, it’s still your testi-

mony that you are the only person here today that

6

has spoken the complete truth, that you have heard?

MR. FRIEDMAN: Sir, every one of your witnesses

have lied through their teeth.

MR. BURNETT: That includes Mrs. Webb?

MR. FRIEDMAN: That includes you, sir.”’

(T-2,3) The trial court stated in its opinion that this

response by Petitioner was contemptuous, and at the end

of the trial on the 8th day of June, 1978, instructed Peti-

tioner to come before the court on the 16th day of June,

1978 “... to consider a Contempt Action against...”

Petitioner for said response. Petitioner at said hearing on

the 16th day of June, 1978 advised the court that imme-

diately upon responding to the Respondent’s attorney’s

question, he apologized (T-3), and that he never intended

to be disrespectful to the court or Respondent’s attorney

(T-4), and that if said statement was found to be con-

temptuous not only was it not intended to be such, but

that as a defense Petitioner showed the court that during

said questioning Respondent was making faces at Peti-

tioner, that such dog bite cases were “‘. . . pent up with

emotion in the first place.”’ (T-4) and that Petitioner was

presently affected by illnesses diagnosed as hypoglycemia

and thyroid dysfunction.

Finding that the Petitioner was guilty of contempt and

immediately subsequent to the sentence of the court, a

timely appeal was filed.

7

REASONS FOR GRANTING THE WRIT

I

THE FAILURE TO AFFORD PETITIONER A

NON-SUMMARY HEARING BEFORE A JUDGE

OTHER THAN THE JUDGE ISSUING THE CON-

TEMPT CITATION DENIED PETITIONER

DUE PROCESS OF THE LAW

The decision of the Georgia Court of Appeals should

be reviewed by this Honorable Court because it fails to

properly address the significant issue of whether Peti-

tioner’s constitutional right to due process of the law was

violated when the trial judge served as both accuser and

trier of fact at the non-summary contempt hearing.

The Court of Appeals recognized that the Federal

Courts take a contrary view to its decision, but because

they could not find a Georgia case in point, they were

bound to follow the dictates of Cabot v. Yarbourough, 27

Ga. 476, a case decided in the infancy of American juris-

prudence.

The decision of the Court of Appeals was without ques-

tion erroneous in its interpretation of the rule of law laid

down in Offutt v. United States, 348 U.S. 11; In Re: Mur-

chison, 349 U.S. 133 and Mayberry v. Pennsylvania, 400

U.S. 455.

This Court has definitively ruled that the due process

clause of the 14th Amendment entitles one charged with

contempt to have the merits of the contempt trial heard

before a different judge than the one issuing the citation.

In Mayberry v. Pennsylvania, supra, this Court specifically

noted that the state courts are to be governed by the notion

of due process and when a non-summary hearing is sched-

uled, a different judge is required:

“(Whether the trial be federal or state, the concern of due

8

“ process 18 with the fair administration of justice. At

times a judge has not been the image of “‘the imper-

sonal authority of law’ (Offutt v. United States, 348

US 11, 17, 99 L Ed 11, 17, 75 S Ct 11) but has be-

come so ‘personally embroiled’ with a lawyer in the

trial as to make the judge unfit to sit in judgment

on the contempt charge.

“The vital point is that in sitting in judgment on

such a misbehaving lawyer the judge should not him-

self give bent to personal grievance. These are subtle

matters, for they concern the ingredients of what con-

stitutes justice. Therefore, justice must satisfy the

appearance of justice.” Id., at 14, 99 L ed at 16.

(Emphasis supplied)

The Court of Appeals’ statement that no Georgia au-

thority exists was likewise in error. Indeed, the Mayberry

rationale was explored and adopted by inference in Farmer

v. Holton, 146 Ga. App. 102, 245 SE2d 457.

In Farmer, the rule stated was that a court of record

held the inherent power to summarily punish alleged con-

tumacious conduct and that if summary punishment were

chosen, due process considerations expressed in Mayberry

need not be followed, ostensibly due to the need to react

quickly and decisively. Conversely then, if the trial court

opted to wait (as did the court in the case sub judice)

then the proper procedure would be to allow another

judge to hear the merits. See: Farmer v. Holton, 146 Ga.

App. at 103, 4 (note 2). No other procedure would com-

port with due process requirements under both Federal

and Georgia law.

IT.

THE TRIAL COURT’S ATTEMPT TO HOLD

PETITIONER TO A HIGHER STANDARD OF

CULPABILITY THAN ANY OTHER WITNESS

. ES ET

a eT a an Ta aa a ee LOTT EL CE cana

ee OT ee ee ee ee

9

DENIED HIM EQUAL PROTECTION OF THE

LAWS

The decision by the Georgia Court of Appeals also

denied Petitioner equal protection of the laws as guaran-

teed by the Fourteenth Amendment to the United States

Constitution and Georgia Code Section 2-203.

The gravamen of Petitioner’s complaint on the above

concerns the court’s obvious feeling that as an attorney,

MR. FRIEDMAN never shed his duties as an officer of

the court. Petitioner asserts this view is only correct in-

sofar as the first prong of the two prong test of Georgia

Code Section 24-105 is concerned. That is, not only must

it be shown that Petitioner was an officer of the court,

but the conduct complained of in such a status must have

transpired as he was carrying out an “‘official transaction’.

Simply put, there must be a joining of both status and

conduct.

The instant case only shows the former and a contempt

citation was in error in absence of the latter. Petitioner,

although an attorney and officer of the court, was not

before the court pursuant to an “official transaction’’.

Petitioner was merely a defendant/witness in a dog bite

case.

“While attorneys as officers of the court are under

a duty to maintain the integrity and dignity of the

Court and respect for its authority for acts com-

mitted ...as an officer of the Court in an official

transaction ... , attorneys are no more amenable to

attachment and summary punishment for contempt

of Court than are other persons.” Townsend vs. U.S.,

54 Ga. App. 627, 188 S.E. 560.

In the instant matter, the court below stated “I con-

sider the matter much more grave due to the fact that you

ee ee ee a

10

are a practicing attorney .. . .” The words of the Georgia

Code as to the powers of the court to punish for contempt,

Title 24, Sec. 105, provides as to attorneys (being officers

of the court) that the misbehavior must be as officers of

the court in their official transactions. To allow a layman

not to be held in contempt in a case where the statutory

prerequisites are met, and on the other hand and on the

same gr~unds, to hold an attorney guilty of contempt for

acts not constituting a function within his capacity as an

officer of court, is to deny attorneys equal protection of

the law, and to single out attorneys as a separate class

of persons to be prosecuted for contempt for the same

conduct that a layman would not be prosecuted for. Ac-

cordingly, unless it be shown that the conduct complained

of was such that a layman under the same circumstances

would have been held in contempt of court, the judgment

finding Petitioner guilty of contempt must be reversed.

IIT.

THE CONTEMPT CONVICTION, PREDICAT-

ED UPON AN ISOLATED STATEMENT NOT

POSING A CLEAR AND PRESENT DANGER

OF INTERFERING WITH THE ORDERLY AD-

MINISTRATION OF JUSTICE DENIED PE-

TITIONER HIS RIGHTS TO FREEDOM OF

SPEECH AND EXPRESSION

The decision by the Georgia Court of Appeals further

denied Petitioner of his rights to freedom of speech and

expression as guaranteed fundamental rights by both the

United States and Georgia Constitutions (First Amend-

ment, United States Constitution; Georgia Code Section

2-104).

No one disputes the fact that the trial was an orderly

one and that Petitioner was charged with contempt for

11

an isolated statement which he believes was not disruptive

when viewed under the totality of the circumstances and

which was clearly an abuse of discretion on the part of

the trial court. The entire episode was compounded by

Petitioner’s ongoing illness and that Respondent was har-

rassing Petitioner. The culmination of all these competing

forces produced the following colloquy between Respon-

dent’s counsel and Petitioner:

“MR. BURNETT: Okay. And, it’s still your tes-

timony that you are the only person here today that

has spoken the complete truth, that you have heard?

MR. FRIEDMAN: Sir, every one of your witnesses

have lied through their teeth.

MR. BURNETT: That includes Mrs. Webb?

MR. FRIEDMAN: That includes you, sir.”’

(T-2,3) The trial court stated in its opinion that the

above response by Petitioner was contemptuous, and at

the end of the trial on the 8th day of June, 1978, instruct-

ed Petitioner to come before the court on the 16th day of

June, 1978 “. .. to consider a Contempt Action against

...” Petitioner for said response. Petitioner at said hear-

ing on the 16th day of June, 1978 advised the court that

immediately upon responding to Respondent’s attorney’s

question, he apologized (T-3), and that he never intended

to be disrespectful to the court or Respondent’s attorney

(T-4), and that if said statement was found to be con-

temptuous not only was it not intended to be such, but

that as a defense Petitioner showed the court that during

said questioning Respondent was making faces at Peti-

tioner and that same was compounded by a physical ill-

ness diagnosed as hypoglycemia (T-5).

Petitioner urges this court to recognize that a serious

question is raised by the trial court’s invasion of his con-

stitutionally protected right of free speech and expression.

ii ia i

12

The developing case authority in this area demonstrates

a delicate balance is struck when First Amendment guar-

antees compete against the contempt powers of the state

courts. Such was the case in Wood v. Georgia, 370 U.S.

375, where it was held that out-of-court utterances must

pose an imminent, and not merely a like or probable,

threat to the orderly administration of justice. Since the

prerequisites of the ‘clear and present danger’ rule were

held not to have been shown, the Wood conviction was

reversed.

The paramount issue thus becomes whether Petitioner’s

in-court utterances should be judged by the same stan-

dards applied by this court to the out-of-court utterances

presented in Wood v. Georgia, supra. It is thus whether

the “clear and present danger” formula is applicable to

both situations; a notion which Petitioner suggests is in-

deed the proper view.

To determine whether the “clear and present danger”

rule is applicable, it is important to understand the Geor-

gia Code Sections relevant to the contempt powers of the

state courts of Georgia. As was explained in Harrell, et al.

v. Word, et al., 54 Ga. 650, the extent of the court to

punish for contempt and its limitations are defined:

‘‘. .. The power of the courts to punish for contempt

in Georgia, is limited. The constitution declares that

it shall be limited, and requires legislation to pre-

scribe the limits: Code, section 5009. The legislature

of the state has prescribed those limits: Code, sec-

tion 4711. That section confines the power to cases

in the presence of the courts, or so near thereto as

to obstruct the administration of justice, the mis-

behavior of any of the officers of said courts in their

official transactions, and the disobedience or resistance

by any officer, party, juror, witness, or other person,

13

to any lawful writ, process, order, rule, decree or

command of said courts...” 54 Ga. at 652. (Em-

phasis supplied)

The Georgia Code Section as it existed in 1875 when

Harrell, supra, was decided is for the most part the same

as it exists today in Title 24, Section 105 of the Georgia

Code:

“24-105. (4643) Powers of the courts to punish

for contempt.— The powers of the several courts to

issue attachments and inflict summary punishment

for contempt of court shall extend only to cases of

misbehavior of any person or persons in the presence

of said courts or so near thereto as to obstruct the

administration of justice, the misbehavior of any of

the officers of said courts in their official transactions,

and the disobedience or resistance by any officer of

said court, party, juror, witness, or other person or

persons to any lawful writ, process, order, rule, de-

cree or command of the said courts:”’

Petitioner was an officer of the court, but as a defen-

dant, he was not an officer of the court involved in an

official transaction, a concept more fully explored in Part

II of this Petition. Further, there is absolutely no proof

that Petitioner disobeyed or resisted any court officer,

party, juror, witness, or other person or persons to any

lawful writ, process, order, rule, decree, or command of

the court. Interestingly enough, the above Code Section

could arguably apply only to summary proceedings; and

where, as here, Petitioner was subject to a non-summary

proceeding, the court would seemingly have no authority

to hold him in contempt in the first instance under Har-

rell, supra.

Thus, to be lawfully found in contempt of court, Peti-

tioner must have misbehaved so as to have affected the

14

administration of justice by presenting a clear and present

danger to that effect. Such was the rule of law forwarded

in Wood vs. Georgia, supra, and should be applied to

Petitioner’s case.

In the instant matter, however, the record does not

show anything that would permit any such imminent or

clear and present danger of obstructing the administra-

tion of justice. ‘“The danger must not be remote or even

probable; it must immediately peril.’”” Wood, supra, 370

US. at 385. In accord: Bridges vs. California, 314 U.S.

252; Pennekamp vs. Florida, 328 U.S. 331, Craig vs.

Harney, 331 U.S. 367.

An application of the Wood, supra, rationale is com-

pelled by the instant factual setting to require that a clear

and present danger be demonstrated to legitimize an

allegedly contemptuous in-court statement ruled upon at

a non-summary hearing. Such is the Federal view and by

implication, the law in Georgia, when First Amendment

freedoms are brought into conflict with the contempt

powers of the state courts.

IV.

THE TRIAL COURT’S FAILURE TO ISSUE

FINDINGS OF FACT AND CONCLUSIONS OF

LAW VIOLATED PETITIONER’S RIGHT TO

DUE PROCESS OF THE LAW

Petitioner’s final attack on the opinion by the Georgia

Court of Appeals concerns due process violations with

respect to the trial court’s failure to abide by the Georgia

Code by neglecting to document its findings of fact and

conclusions of law. See: Georgia Code Section 81A-152

reproduced in Appendix E, infra, page A. 13.

15

In Brown vs. Hames, 131 Ga. App. 148, 205 8.E.2d 716

(1974), the Court of Appeals reversed a contempt con-

viction where the trial court failed to specially find facts

and conclusions of law upon and in support of the convic-

tion. See also: Carson vs. Georgia, 146 Ga. 726(6); Carter

vs. State, 129 Ga. App. 536, 537, 199 S.E.2d 925; Garland

vs. State, 99 Ga. App. 826, 110 S.E.2d 143.

Accordingly, the judgment of the trial court was so

vague and indefinite so as to be void and must therefore

be reversed.

16

CONCLUSION

For the foregoing reasons, a Writ of Certiorari should

issue to review the judgment and opinion of the Georgia

Court of Appeals.

Respectfully submitted,

Hirscu Frrepman, P.C.

Attorneys for Petitioner

By: /s/ Spencer J. Krupp

SPENCER J. Krupp

3179 Maple Drive, N.E.

Atlanta, Georgia 30305

Phone: (404) 231-2025

2

17

CERTIFICATE OF SERVICE

I, Spencer J. Krupp, hereby certify that I have served

a copy of the foregoing Petition on LAWRENCE S.

BURNAT, at 127 Peachtree Street, N .E., Atlanta, GA

30303.

This 30th day of November, 1979

/s/ Spencer J. Krupp

SPENCER J. Krupp

Attorney for Petitioner

APPENDIX A

Jan. Call

MAY 29 1979

57048. FRIEDMAN v. HARBOLD McM-11

McMURRAY, Presiding Judge.

Defendant Friedman, an attorney and witness in his

own behalf as a party defendant in a dog bite case, was

adjudged in contempt for disrespectful, rude and insult-

ing behavior in the trial after he was given a hearing at

the conclusion of the dig bite case. The contumacious

conduct found by the trial court arose out of a portion of

the trial proceeding in which defendant Friedman was

being cross-examined as follows: “Q. Okay. And, it’s still

your testimony that you are the only person here today

that has spoken the complete truth, that you have heard?

A. Sir, everyone of your witnesses have lied through their

teeth. Q. That includes Mrs. Webb? A. That includes you,

sir.” Defendant appeals, traversing the findings of fact.

Held:

1. While our federal judiciary does not approve of the

trial judge in the court in which the offense allegedly oc-

curred serving as the accuser as well as the trial judge,

hearing the charges preferred by him; nevertheless, we

know of no decision preventing same in this state or a

decision holding such a hearing in state courts to be viola-

tive of the due process clause of the 14th Amendment. See

Cabot v. Yarborough, 27 Ga. 476. There is no merit in the

complaint that such trial violates the due process clause

of the 14th Amendment.

Further, this question was raised for the first time on

appeal and was not raised in the trial court. See Cowart v.

A.l

A.2

Georgia Hospital Service Association, Inc., 135 Ga. App.

45 (1, 2, 3) (217 SE2d 379); Garland v. State of Georgia,

101 Ga. App. 395, 396 (2), 400 (114 SE2d 176).

2. Defendant admits that he, as a witness in the trial

court, in the heat of battle, lost his head and in answering

& question as to whether he thought another witness had

not spoken the truth, he replied to counsel “{t]hat includes

you, sir.” While there have been many cases in which

many instances of more flagrant contumacious remarks

were made, nevertheless, the trial court did not err in

holding it was contumacious in considering the facts and

particularly so since the defendant was an officer of the

court. See In re Fite, 11 Ga. App. 665 (2) (76 SE 397)

Garland v. State of Georgia, 101 Ga. App. 395, supra ;

Cochran v. Sosebee, 120 Ga. App. 115 (169 SE2d 624).

3. In consideration of all the evidence the trail court

did consider the evidence as to the defendant’s illness, as

weil as other facts presented in mitigation, but, while

sympathetic to the situation, the trial court refused to

excuse or overlook the contumacious conduct. This case

differs on its facts from White v. State of Georgia, 218 Ga.

290 (127 SE2d 668), which reversed White v. State of

Georgia, 105 Ga. App. 616 (125 SE 239), affirming a judg-

ment of contempt of the trial court. In the case sub judice

the evidence supported the finding of contempt notwith-

standing the claims of illness and loss of temper, as an

excuse for the defendant’s conduct. .

4. The case of Townsend v. State of Georgia, 54 Ga. App.

627 (188 SE2d 560), involves conduct outside of a court

and is not controlling here. Here, as an attorney and officer

of the court, defendant did not shed these duties when he

became a witness in his own behalf. As such he was

charged with knowledge other witnesses did not neces-

A. 3

sarily have in a court of law. See Cohran v. Sosebee, 120

Ga. App. 115, supra.

5. The findings of fact and conclusions of law conform

to the requirements of Code Ann. § 81A-152 (CPA § 52;

Ga.L. 1969, pp. 645, 646; 1970, pp. 170, 171). There is no

merit in this complaint.

Judgment affirmed. Deen, C.J., and Birdsong, J., concur.

Shulman, J., not participating.

APPENDIX B

Court of Appeals of the State of Georgia

ATLANTA, June 28, 1979

The Honorable Court of Appeals met pursuant to ad-

journment.

The following order was passed :

57048. Hirsch Friedman v. Mary E. Harbold

Upon consideration of the motion for a rehearing filed

in this case, it is ordered that it be hereby denied.

Court of Appeals of the State of Georgia

Clerk’s Office, Atlanta, June 28, 1979

I certify that the above is a true extract from the

minutes of the Court of Appeals of Georgia.

Witness my signature and the seal of said court hereto

affixed the day and year last above written.

/s/ MorGan Tuomas, Clerk

A. 4

APPENDIX C

35404

SUPREME COURT OF GEORGIA

Atlanta, September 4, 1979

The Honorable Supreme Court met pursuant to ad-

journment. The following judgment was rendered:

HIRSCH FRIEDMAN V. MARY E. HARBOLD

Upon consideration of the application for certiorari

filed to review the judgment of the Court of Appeals in

this case, it is ordered that the writ be hereby denied.

All the Justices concur. ;

SUPREME COURT OF THE STATE OF GEORGIA

Clerk’s Office, Atlanta, September 20, 1979

I certify that the above is a true extract from the min-

utes of the Supreme Court of Georgia.

Witness my signature and the seal of said court hereto

affixed the day and year last above written.

/s/ JOLINE B, Wriu1aMs, Clerk.

Case No. 57048

Court of Appeals of Georyia

Remittitur from Supreme Court

Filed in office

Clerk Court of Appeals of Georgia.

A. 5

a na

APPENDIX D

IN THE SUPERIOR COURT OF DEKALB COUNTY

STATE OF GEORGIA

MARY ELLEN HARBOLD, ) NON-JURY HEARIN G

Plaintiff,

VS.

HIRSCH FRIEDMAN and

DEBORAH L. BLACKMAN -

Defendants. }

- NO. 77-716

Transcript of proceedings before THE HON ORABLE

WM. T. DEAN on June 16, 1978 at Decatur, Georgia.

APPEARANCES OF COUNSEL:

For the Plaintiff: LAWRENCE S. Burnat

Attorney at law

For the Defendant

Hirscu FRIEDMAN: PRO SE

Patsy Inuick

Official Certified Court Reporter

306 DeKalb County Courthouse

Decatur, Georgia 30030

A.7

THE COURT: Come around to the front, if you will,

Mr. Friedman. Have a seat there, Mr. Friedman. Come

up here, Mr. Burnat.

Mr. Friedman, you were notified to be here before this

Court this morning to consider a Contempt Action against

you for your conduct during the trial of the case of Har-

bold versus Friedman, et al. Do you have counsel, sir?

MR. FRIEDMAN: No, sir.

THE COURT: Do you desire to represent yourself?

MR. FRIEDMAN: With all due respect, yes, sir.

THE COURT: All right, sir. The Court has indicated

to you the Court’s feeling about the matter and that the

Court is of the opinion that there was a contempt com-

mitted in the presence of this Court due to your conduct

in making answers to certain questions asked by Mr.

Burnat, attorney for the plaintiff, and I want the record

at this time to show that the questions propounded you

by counsel for the plaintiff, near the conclusion of trial,

were as follows:

“MR. BURNAT: Okay. And, it’s still your testimony

that you are the only person here today that has spoken

the complete truth, that you have heard?

MR. FRIEDMAN: Sir, everyone of your witnesses

have lied through their teeth.

MR. BURNAT: That includes Mrs. Webb?

MR. FRIEDMAN: That includes you, sir.”

Now this Court is of the opinion that the action on

your part is subject to action by the Court, and on the

basis of this citation of a contempt, have you any defense

or witnesses or statements you wish to make for the

record?

A. 8

MR. FRIEDMAN: Yes, Your Honor, I would.

Your Honor, prior to giving a legal argument on the

matter, and as the Court recalls, as Mr. Burnat recalls,

I immediately apologized to the Court and to Mr. Bur-

nat. I have been practicing in Atlanta now, this is my

third year, just had my second anniversary. Never in

those two years, Your Honor, those which I have previ-

ously experienced with the courts as a police officer; my

experience as a businessman with the courts, have I ever

allowed myself under any circumstances to get so per-

sonally involved as to lose my temper or to say some-

thing improper. And I will state to the Court most whole-

heartedly, as I attempted to state at the last date, and

Mr. Burnat will recall that when we walked out of the

courtroom I said, “Larry, I’m sorry, I don’t know what

came over me.’’ And I do apologize again to the Court

and to Mr. Burnat.

In my defense, Your Honor, I would state the follow-

ing, although I am an attorney at law and I hold myself in

great esteem, numerous colleagues and numerous friends

who are members of the Bench I considered asking to call

Your Honor in my behalf, and I thought it would not be

proper to do so under those circumstances. If I am ulti-

mately found to have done something that grossly im-

proper, and an individual is responsible for his Own ac-

tions, and if I have done that, I am totally wrong and I

am wholeheartedly sorry, Your Honor. N ever in my wild-

est imagination have I ever intended to be disrespectful

to this Court or even to Mr. Burnat.

The circumstances, as the Court recalls, was I was

named as a party defendant in a dog-bite case. Dog-bite

cases, unfortunately, are always pent up with emotion in

the first place.

A. 9

If the Court noticed, and as Mr. Klosik, my attorney

at that time from State Farm, mentioned to the jury, and

as one of the jury members downstairs when we were

talking to them affirmed, Mrs. Harbold was making faces

at me. I am more professional than that, Your Honor, it

shouldn’t have bothered me, but the entire contact, the

context of the entire thing, coupled with one other thing

which the Court, of course, would not be knowledgeable

of or aware of, and which is partially my fault and pri-

marily my fault. A number of years ago, Your Honor, I

was diagnosed as having hypoglycemia which is low blood-

sugar, and for it I am prescribed a medication called

DBI T.D. or else I take Cytomil for a thyroid disfunc-

tion. That’s the reason I have gained a number of pounds,

many pounds, about 80 pounds over the past few years.

I have recently, or had recently gone on a starvation

diet. I have taken off about 20 or 25 pounds, but hypo-

glycemia, and the reason I found it a number of years

ago, is it gave me flashes of emotion and getting me upset

and saying something, and two seconds later not knowing

why. I have not taken the medication for the past year

and a half, Your Honor, because as long as I am eating

a proper diet the low blood-sugar doesn’t effect me in

anyway whatsoever. I was not eating the proper diet. In

fact, I was close to starvation to knock off the weight I

did. It’s the only reason I could see why I lost my temper

that time and said something very discourteous to Mr.

Burnat, which I have never done before in my life. Never,

under any circumstances, would I deem to insult the

Court, which I didn’t mean to do, or Mr. Burnat.

With regard to a legal argument, Your Honor, with all

due respect, and I know it is a funny position to repre-

sent myself, I sent my associate to handle the case I had

A. 10

this morning at 10— Title 24, Section 105 sets forth the

powers of the court to hold me in contempt and the rea-

sons therefor. I respectfully believe, Your Honor, and I

looked at it for the first time last night. I think, although

what I stated to Mr. Burnat was insulting to Mr. Burnat,

and I wholeheartedly apologize again to him now and to

the Court, I do not respectfully believe, however, that

under the laws of the State of Georgia it is something

from which an individual can be held in contempt by the

way 24-105 is written. There are some cases that say that

the courts of the State of Georgia do not have the old

common law power to hold in contempt, but they are

strictly restricted to the statutory provisions. In that

area, Your Honor, as a legal defense I will state that I

do not believe I am technically in contempt; notwith-

standing that, however, I was grossly wrong in insulting

Mr. Burnat. It was not intentional and I wholeheartedly

ask the Court to take that in consideration.

If the Court wishes, contact almost any judge on the

Fulton County Superior Court bench where I do my pri-

mary practice. I am a criminal attorney. I have had sev-

eral heated cases. I never once have ever said anything

disrespectful to anyone. I handle my cases in the most

professional way. As a party defendant, Your Honor,

emotions run wild and it is the only excuse for saying

what I said to Mr. Burnat. It was wrong, and again I

respectfully apologize. That is all I can say, Your Honor.

THE COURT: Mr. Burnat, any statements you wish

to make for the record, sir?

MR. BURNAT: Your Honor, all I can say is I believe

Mr. Friedman’s actions spoke for themselves at the time,

and I don’t think there is anything I can add one way or

the other.

egy

i |

A. 11

THE COURT: Thank you, gentlemen, for both of your

views in the matter. The Court has given this matter

considerable thought, and as far as the legal situation,

Mr. Friedman, is concerned I think we have absolute

right to inflict summary punishment for contempt of

court as demonstrated by your action in this matter. I

consider the matter much more grave due to the fact that

you are a practicing attorney and should know that the

Court at all times demands respect. We respect you and

expect you to respect others that come before the Court

and as they are required to give their utmost respect,

also, to all parties.

Based on the record, gentlemen, and giving considera-

tion to your statement, the Court is sympathetic to your

situation, but I cannot overlook it. The Court finds you,

Mr. Hirsch Friedman, guilty of contempt of court. I sen-

tence you to a term of 20 days in DeKalb County jail

and payment of fine of $200. Upon payment of fine of

$200, 18 days of the sentence of 20 days will be served

on probation by the defendant. It is so ordered.

In the event that you file an appeal and wish to file

an appeal from the Court’s Order, you have that right.

The Court will not enforce the sentence for a period of

five days. That is the sentence of the Court.

MR. FRIEDMAN: Thank you, Your Honor.

**e KK *

A. 12

STATE OF GEORGIA:

COUNTY OF DEKALB:

CERTIFICATE

The foregoing transcript of the proceedings was taken

before me as official court reporter for the Superior Court

of DeKalb County, and reduced to typewriting, and I

certify that it is a true and correct transcript of the

proceedings.

This 12th day of September, 1978.

/s/ Patsy Inuick

Patsy ILuick

Official Certified Court Reporter

for the Stone Mountain Judicial Circuit

Certificate No. B-354.

i: a ai

| APPENDIX E

| CONSTITUTIONAL PROVISIONS INVOLVED

(A) FIRST AMENDMENT:

“Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise thereof;

or abridging the freedom of speech, or of the press; or the

right of the people peaceably to assemble, and to petition

the Government for a redress of grievances.”

(B) FOURTEENTH AMEN DMENT:

“All persons born or naturalized in the United States,

and subject to the jurisdiction thereof; are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law, nor deny

to any person within its jurisdiction the equal protection

of the laws.”

A. 13

APPENDIX F

STATUTORY PROVISIONS INVOLVED

“2-101 (Art. I, Sec. I) Par. I. Life, liberty, and prop-

erty. No person shall be deprived of life, liberty, or prop-

erty, except by due process of law.”

‘2-104 (Art. I, Sec. I) Par. IV. Liberty of speech or

of the press guaranteed. No law shall ever be passed to

curtail, or restrain the liberty of speech, or of the press;

any person may speak, write and publish his sentiments,

on all subjects, being responsible for the abuse of that

liberty.”

‘2-203 (Art. I, Sec. II) Par. III. Protection the duty

of government. Protection to person and property is the

paramount duty of government, and shall be impartial

and complete.”

“24-105, (4643) Powers of courts to punish for con-

tempt. The powers of the several courts to issue attach-

ments and inflict summary punishment for contempt of

court shall extend only to cases of misbehaviour of any

person or persons in the presence of said courts or so near

thereto as to obstruct the administration of justice, the

misbehaviour of any of the officers of said courts in their

official transactions, and the disobedience or resistance by

any officer of said court, party, juror, witness, or other

person or persons to any lawful writ, process, order, rule,

decree, or command of the said courts”... ”

“81A-152 (CPA Sec. 52) Finds by the Court (a)

Effect In all actions in superior court tried upon the

facts without a jury, except actions involving only un-

contested divorce, alimony and custody of minors, the

court shall find the facts specially and state separately

A. 14

A. 15

its conclusions of law thereon and judgment shall be en-

tered pursuant to Sec. 81A-158; and in granting or refus-

ing interlocutory injunctions the court shall similarly set

forth the findings of fact and conclusions of law which

constitute the grounds of its action. Request for findings

are not necessary for purposes of review. Findings of fact

shall not be set aside unless clearly erroneous, and due

regard shall be given to the opportunity of the trial court

to judge of the credibility of the witness. If an opinion

or memorandum of decision is filed, it will be sufficient if

the findings of fact and conclusions of law appear therein.

Findings of fact and conclusions of law are necessary on

decisions of motions under Sec. 81A-112 or 81A-156 or

any other motion except as provided in sec. 81A-141 (b).

The requirements of this subsection may be waived in

writing by the parties: Provided, all verdicts and judg-

ments heretofore rendered in any uncontested divorce,

alimony or custody case without findings of fact and con-

clusions of law are hereby declared to be legal and bind-

ing and of the same effect as if such cases had been ren-

dered with findings of fact and conclusions of law. (b)

Amendment Upon motion of a party made not later

than 10 days after entry of judgment, the court may

amend its findings or make additional findings and may

amend the judgment accordingly. The motion may be

made with a motion for a new trial, but if so made, both

motions shall be made within 10 days after the entry of

judgment. When findings of fact are made in actions tried

by the court without a jury, the question of the sufficiency

of the evidence to support the findings may thereafter be

raised whether or not the party raising the question has

made in the trial court an objection to such findings or

has made a motion to amend them or a motion for judg-

ment. (Acts 1969, pp. 645, 656; 1970, pp. 170, i738."