City of Overland Park v. Estell, s. 50189

• Decision Date: 31 March 1979
• Docket Number: 50190,Nos. 50189,s. 50189
• Citation: 592 P.2d 909,225 Kan. 599
• Parties: CITY OF OVERLAND PARK, Kansas, Appellant, v. Reginald ESTELL, and Cynthia Ann McDiffett, Appellees.
• Court: Kansas Supreme Court

Page 909

592 P.2d 909

225 Kan. 599

CITY OF OVERLAND PARK, Kansas, Appellant, v. Reginald ESTELL, and Cynthia Ann McDiffett, Appellees.

Nos. 50189, 50190.

Supreme Court of Kansas.

March 31, 1979.

Syllabus by the Court

In consolidated cases involving a district judge's dismissals with prejudice of complaints in appealed municipal court convictions, the sole basis for the dismissals being the refusal of the municipal court to appoint and compensate counsel for the indigent defendants on their appeals to the district court, the record is examined and it is Held : The district judge erred in dismissing the complaints as more fully set forth in the opinion.

Neil Shortlidge, Asst. City Atty., for the City of Overland Park, argued the cause, and Michael D. Mance, Asst. City Atty., was on the brief for the appellant.

No appearance by the appellees.

Lyndus A. Henry, County Counselor, Overland Park, was on the brief for the Johnson County Board of County Commissioners, amicus curiae.

McFARLAND, Justice:

These unrelated cases involve appeals by the City of Overland Park from orders of the district court dismissing the complaints against the defendants. The cases were consolidated on appeal as they involve identical issues.

In the municipal court of the City of Overland Park both defendants were convicted of violations of ordinances of that city, were fined, and were sentenced to terms in the city jail. Each was found indigent in the municipal court and was represented in the proceedings by court appointed counsel. Each defendant appealed the municipal court conviction to the district court. When the cases were called for arraignment on April 12, 1978, before the district court, each defendant was accompanied by counsel appointed by the municipal court. Each defendant advised the court that the condition of indigency still existed and requested appointment of counsel. The district court judge suggested each defendant return to the municipal court for appointment of counsel and took their requests for counsel under advisement.

The municipal court denied both defendants' motions for appointment of counsel on the basis that the municipal court no longer had jurisdiction of the cases as they were on appeal, and further noted the cases were to be tried de novo in the district court. On May 10, 1978, both defendants again appeared in district court. What transpired at that hearing is set forth in the following excerpt from the identical journal entries filed in both cases:

"Prior to proceeding with the arraignment, the Court notes that a Journal Entry has been filed reflecting a decision of Judge Jerry Hess of the Overland Park Municipal Court that said Municipal Court has no jurisdiction to appoint an attorney to represent the above-named defendant on this appeal. The Court further finds that a previously submitted affidavit of indigency by said defendant shows that the defendant is, in fact, indigent and entitled to an appointed attorney.

"The Court finds that under K.S.A. 12-4405 the Municipal Court of Overland Park is required to appoint attorneys for those people found indigent both at the Municipal Court and the District Court level. Therefore, the Court finds that the refusal on the part of the Municipal Court to appoint an attorney to represent the defendant in the above-captioned case requires that the complaint filed herein against the defendant should be, and is hereby, dismissed with prejudice. The Court further orders that the costs of this appeal shall be assessed against the plaintiff.

"The plaintiff then states to the Court that it takes exception to the ruling of the Court and expresses its intention of appealing said ruling dismissing this complaint to the Supreme Court of the State of Kansas. The Court then orders that if the plaintiff does appeal this case to the Appellate Courts of Kansas, the plaintiff shall appoint an attorney to represent the defendant on such appeal. The plaintiff, at that time, again takes exception to the ruling of the Court and notes to the Court its intention of appealing that order also.

"The Court notes the exceptions taken by the plaintiff and notes its intention of filing an appeal and, there being nothing further, the orders of the Court are entered."

Appellant City of Overland Park raises the following two issues on appeal:

1. Whether the district court erred in ruling that the municipal court judge had jurisdiction to appoint counsel for de novo appeals of municipal court convictions to the district court and in dismissing the complaints for failure of the municipal court judge to appoint counsel.

2. Whether the district court erred in ordering the municipal court judge to appoint and bear the costs of counsel to represent the defendants on an appeal by the plaintiff/appellant to the Supreme Court of the district court's orders dismissing the complaints as set forth in Issue No. 1.

In Algersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), the United States Supreme Court ruled that no accused could be deprived of his liberty as the result of any criminal prosecution, whether felony or misdemeanor, in which he was denied the assistance of counsel. The 1973 Kansas legislature enacted K.S.A. 12-4405, relating to municipal courts:

"If the municipal judge has reason to believe that if found guilty, the accused person might be deprived of his or her liberty and is not financially able to employ counsel, the judge shall appoint an attorney to represent the accused person.

"Financial inability to employ counsel shall be determined by the methods provided in K.S.A. 22-4504."

It should be noted that the right to counsel of each of the defendants herein is not disputed.

The statutes relative to appeals from the municipal court are as follows:

K.S.A. 12-4601. Appeals; stay of proceedings.

"An appeal may be taken to the district court in the county in which said municipal court is located:

"(A ) By the accused person in all cases; and

"(B ) By the city upon questions of law.

"The appeal shall stay all further proceedings upon the judgment appealed from."

K.S.A. 12-4602. Same; procedure.

"An appeal to the district court may be taken as provided in K.S.A.1975 Supp. 22-3609. The appearance bond may continue in effect throughout the appeal; however, the municipal judge may require a separate appeal bond. Hearing and judgment on appeal shall be as provided in K.S.A. 22-3610 and 22-3611."

K.S.A.1978 Supp. 22-3609. Appeals from municipal courts.

"(1) The defendant shall have the right to appeal to the district court of the county from any judgment of a municipal court which adjudges the defendant guilty of a violation of the ordinances of any municipality of Kansas or which imposes a sentence of fine or confinement or both. Such appeal shall be assigned by the administrative judge to a district judge or associate district judge. The appeal shall stay all further proceedings upon the judgment appealed from.

"(2) An appeal to the district court shall be taken by filing a notice of appeal in the court where the judgment appealed from was rendered. No appeal shall be taken more than ten (10) days after the date of the judgment appealed from.

"(3) The judge whose judgment is appealed from, or the clerk of such court, if there be one shall certify the complaint, warrant and any appearance bond to the district court of the county on or before the next court day of such district court occurring more than ten (10) days after the appeal.

"(4) No advance payment of docket fee shall be required when the appeal is taken.

"(5) Hearing on the appeal shall be to the court unless a jury trial is requested in writing by the defendant."

K.S.A. 22-3610. Hearing on appeal.

"When a case is appealed to the district court, such court shall hear and determine the cause on the original complaint, unless the complaint shall be found defective, in which case the court may order a new complaint to be filed and the case shall proceed as if the original complaint had not been set aside. The case shall be tried De novo in the district court."

K.S.A. 22-3611. Judgment on appeal.

"If upon appeal to the district court the defendant is convicted, the district court shall impose sentence upon him and render judgment against him for all costs in the case, both in the district court and in the court appealed from."

Nowhere in any of the aforecited statutes is there any reference to who pays the cost of appointed counsel for appeals from the municipal court to the district court. K.S.A. 12-4405, previously cited, provides that financial inability to employ counsel shall be determined by the methods provided by K.S.A. 22-4504. The reference to K.S.A. 22-4504 simply directs the municipal court how to determine indigency and does not assist in resolving the issues before us.

The brief of the City of Overland Park and the amicus curiae brief of the Board of County Commissioners of Johnson County offer no authority in support of their respective positions as to who pays the attorneys' fees (the defendants having filed no briefs herein). We have, likewise, found no authority directly on point.

In resolving this issue we must look to the nature of such appeals to the district court.

This court has frequently said that a district court, upon hearing an appeal from police court, Sits as the police judge. Dodge City v. Day, 195 Kan. 303, 305, 403 P.2d 1004 (1965); City of Fort Scott v. Arbuckle, 165 Kan. 374, 388, 196 P.2d 217 (1948); In re Sanford, 117 Kan. 750, 752, 232 P. 1053 (1925). In Arbuckle, 165 Kan. at 388, 196 P.2d at 226, we said:

"From its inception a prosecution for violation of a city ordinance is in the hands of the city authorities. The prosecuting attorney is the city attorney. The action is carried on in the name of the city against the defendant, the sentence to confinement is in the city jail. The penalty is fixed by the ordinance. The fine goes to the city treasury and...