Lawyers who have a hard time keeping a poker face when they don't like a judge's ruling can take heart in a decision issued last week by the Georgia Court of Appeals.
A three-judge panel has tossed a ruling by a veteran Henry County Juvenile Court judge that found a lawyer in contempt for making what the judge called a "sarcastic" face at him. Chief Judge A.J. "Buddy" Welch Jr. had ordered Ella A. S. Hughes to jail for the offense, but on Tuesday an appeals panel reversed, in part on the grounds that the judge didn't give the lawyer an opportunity to fight a possible contempt finding.
When Welch had Hughes taken into custody last year, Hughes was in court representing a mother, Robyn Pressley Harris, facing jail time for her own contempt citation arising out of a deprivation case. Hughes, an Atlanta-area solo practitioner, had been a member of the Georgia Bar for less than a year. Welch, a former president of the Council of Superior Court Judges of Georgia, has been a juvenile court judge for more than three decades and is a senior partner at Smith, Welch & Brittain.
According to a separate Court of Appeals opinion issued Thursday in Harris' case, at the July 10, 2008, hearing, Welch expressed dissatisfaction with the level of cooperation Harris had provided the state Division of Family and Children Services. When Harris said she didn't have with her a contact number for the father of one of her children, Welch promptly found Harris in contempt and ordered her taken into custody for 20 days, saying she could get out of jail if she provided all of the requested information.
The proceedings then turned to the question of who would take care of Harris' children while she was in jail.
According to the Court of Appeals opinion in Hughes' contempt case, Hughes suggested her client's children be placed with their fathers, rather than the state.
According to the transcript set forth in the Court of Appeals opinion, Welch next asked whether the fathers were present in court that day. "No," responded Hughes.
"Then the only ones that I can place the children with is with DFCS," interrupted Welch, "and then the -- that expression, ma'am, just cost you $100. You are removed from the court approved list."
When Hughes tried to speak up, Welch told her not to interrupt. "Your sarcastic looks and your sarcastic attitude is unacceptable to this court," he said. "You are removed from the appointed list. You can reapply at some other time. You can stay on the cases that you presently have but if I ever see that action from you again I can assure you that appropriate actions will be taken. Do you understand that, ma'am?"
"Yes, sir," responded Hughes.
"You may not like my rulings but you can surely appeal them," added Welch.
"If I may, Your Honor, the only thing I did was bow my head to write down what you were saying," Hughes explained.
"No, ma'am. You did not," countered Welch. "Now you have tested the court's patience. I find you in willful contempt of this court. You are fined $1,000 and you are given 10 days in jail. Take her into custody. I want the record to reflect that the attorney I just had to hold in contempt was not just bowing her head but she was giving sarcastic, unprofessional looks, body action that showed her disgust for the court's ruling and disrespect for the court in its entirety."
Hughes said she was escorted into lockup. She was there only a few minutes, she said, before she was called to handle another case.
Hughes paid the fine, enabling her to avoid the jail time. The state attorney general's office argued that made her appeal moot, but the Court of Appeals panel disagreed. The opinion written by Judge Anne Elizabeth Barnes and joined by Chief Judge M. Yvette Miller and Presiding Judge Gary B. Andrews cited a 2008 opinion of the court that says the potential damage to a lawyer's reputation can keep alive a challenge to a contempt sanction.
Barnes' opinion also cited a separate 2008 Georgia Supreme Court decision that vacated a contempt finding by a Glynn County juvenile court judge against an assistant public defender. In that opinion, wrote Barnes, the Supreme Court "stated that in 'adjudicating a case of possible contempt, doubts should be resolved in favor of vigorous advocacy' and reminded trial judges that they 'must be on guard against confusing offenses to their sensibilities with obstruction of the administration of justice.'"
"Here," continued Barnes, "we find that the trial court erred by immediately imposing punishment and not providing Hughes the opportunity to speak in her own behalf. Indeed, when Hughes did attempt to explain her actions, the trial court increased her fine ten-fold." Barnes also wrote that while the information that DFCS wanted was not that important to the case as a whole, the potential consequences to Hughes' client -- being thrown in jail and losing custody of her children -- were grave.
"[T]he court had obviously lost its patience with Ms. Hughes and her client and imposed sanctions for contempt when other actions might have achieved the same result without the disruption to the underlying case that these contempt citations have caused," wrote Barnes, noting the appeal of Welch's finding that Harris' children were deprived was dismissed by the Court of Appeals because Hughes didn't file enumerations of error and a brief. (Hughes said she doesn't think the contempt citations led her to not file the brief, noting she did file a notice of appeal. She said she thought she filed the brief in the deprivation case but allowed it's possible that she didn't.)
The Court of Appeals was not as understanding of Hughes' client, voting 5-2 to uphold the contempt finding against Harris. In an opinion written by Andrews and joined by Miller, Presiding Judge G. Alan Blackburn and Judges John J. Ellington and Charles B. Mikell Jr., the majority said that Welch hadn't abused his discretion by holding Harris in contempt. In a dissent joined by Presiding Judge Edward H. Johnson, Barnes disagreed, saying Welch's prior order was ambiguous at best when it came to specifics.
Russ Willard, spokesman for Attorney General Thurbert E. Baker, said the state would not appeal the ruling in favor of Hughes, noting the panel had rejected challenges to the deprivation order that Hughes made in appealing the contempt finding against Harris.
Hughes said she likely would not seek a further appeal of the contempt finding against Harris, saying she didn't think her court appointment extended that far. But she shrieked with delight on Thursday when learning of her success on her own appeal, noting she had long assumed she had lost the case because she had received a dismissal notice (presumably in the deprivation case) from the court.
"It's just a great thing to be able to practice law and to represent people who are really underrepresented," said Hughes, adding that if a lawyer has a passion for that type of law she shouldn't be punished for doing so zealously.
"An attorney should not allow a judge to intimidate them," she said. "You have to be respectful of the court, and I think in that instance I was extremely respectful to the court." But, she added, "our obligations are to our clients. That's the oath that we took."
Hughes, who said she has been allowed to take new court-appointed cases in Henry County prior to the Court of Appeals ruling and even appeared before Welch just last week, said she thinks the Court of Appeals ruling entitles her to get back the $1,000 fine she paid. "This is new to me," Hughes acknowledged. "I'm surely going to try."
