State v. Jenkins

• Decision Date: 12 December 1997
• Docket Number: No. 77549,77549
• Citation: 263 Kan. 351,950 P.2d 1338
• Parties: STATE of Kansas, Appellee, v. Deryck JENKINS, Defendant. Joseph D. Johnson, Respondent in Contempt Proceedings, Appellant.
• Court: Kansas Supreme Court

Page 1338

950 P.2d 1338

263 Kan. 351

STATE of Kansas, Appellee, v. Deryck JENKINS, Defendant.

Joseph D. Johnson, Respondent in Contempt Proceedings, Appellant.

No. 77549.

Supreme Court of Kansas.

Dec. 12, 1997.

Syllabus by the Court

1. Although a district court has the inherent power to control an attorney who is either a "no-show," tardy, or both, and to impose sanctions for contempt of court, the statutory procedure, K.S.A. 20-1201 et seq., regulates the contempt power. No inherent power to punish for contempt exists independent of K.S.A. 20-1201 et seq.

2. A contempt of court action is unique; thus, an appellate court has a dual standard of review. De novo review is applied to determine whether the alleged conduct is contemptuous. An abuse of discretion standard of review applies in reviewing the sanctions.

3. The record is reviewed in a case involving an attorney whose absence from a scheduled preliminary hearing and late arrival for the rescheduled hearing is punished by a fine imposed under what the district court characterized as its inherent power, and it is held: (a) The actions of the attorney contemner are a direct contempt under the hybrid rationale of In re Yengo, 84 N.J. 111, 417 A.2d 533 (1980), cert. denied 449 U.S. 1124, 101 S.Ct. 941, 67 L.Ed.2d 110 (1981), adopted herein; (b) a contemner is not required to be told in advance the ceiling amount of any fine; (c) any sanction for contempt must be imposed under K.S.A. 20-1201 et seq.; (d) the power to include attorney fees in a direct contempt sanction is inferred under the district court's general punishment powers in K.S.A. 20-1203; however, the contemner must have notice that any sanction may include attorney fees; (e) the actions sanctioned are contemptuous; and (f) the monetary sanction is reduced to $350.

Daniel E. Monnat, of Monnat & Spurrier, Chartered, Wichita, argued the cause and was on the brief, for appellant.

Eliehue Brunson, Assistant Attorney General, argued the cause, and Christopher F. Burger and Hsingkan Chiang, Assistant Attorneys General, and Carla J. Stovall, Attorney General, were on the brief, for appellee.

SIX, Justice:

This is a first impression attorney contempt of court action. Joseph D. Johnson appeals his fine of $550 imposed by the district court. Johnson was sanctioned for (1) his failure to appear at a previously scheduled preliminary hearing, (2) his failure to give notice to other counsel or the court that he would not be present, and (3) his tardy appearance at the re-scheduled hearing.

We exercised our jurisdiction by transferring the case from the Court of Appeals under K.S.A. 20-3018(c).

Johnson's sanctions were entered under what the district court characterized as its inherent power, not under K.S.A. 20-1201 et seq., the statutory contempt procedure. Our question is whether the orders of the district court should be affirmed, modified, or reversed.

A district court has the inherent power to control an attorney who is either a "no-show," tardy, or both. If the district court imposes sanctions for contempt of court, the procedure under K.S.A. 20-1201 et seq. regulates that power. No inherent power to punish for contempt exists independent of K.S.A. 20-1201 et seq. We hold that Johnson's actions were contemptuous and that his contempt was direct. We reverse the attorney fees assessment; thus, the monetary sanction is reduced to $350. Johnson had no notice he would be subject to an assessment for attorney fees.

FACTS

A multi-count criminal complaint was filed against Deryck J. Jenkins and a codefendant. Jenkins was released on bond. Johnson, as Jenkins' retained attorney, entered his appearance. The codefendant had separate counsel appointed from the public defender's office. Jenkins' preliminary hearing was scheduled for May 2, 1996. At the request of defense counsel, both preliminary hearings were rescheduled for June 24, 1996. Although Johnson appeared for the hearing, his client did not. Jenkins' bond was forfeited and an arrest warrant issued. However, Jenkins appeared later that day, and the warrant was recalled. Both Johnson and Johnson's office, when contacted, advised the court that he was attending a hearing on another case before Judge Nancy E. Parrish (Division 14). Everyone waited for Johnson to appear for Jenkins' preliminary hearing. At 11:45 a.m., according to Judge Buchele, an administrative assistant gave notice to Johnson at Division 14 that Jenkins' preliminary hearing would begin at 1:30 p.m. Although everyone else appeared at 1:30 p.m., Johnson did not arrive until 1:50 p.m. The hearing commenced when Johnson arrived. After the hearing, an on-the-record exchange between Judge Buchele and Johnson concerning Johnson's conduct took place.

Jenkins were advised that the preliminary hearing for both defendants was reset for July 2, 1996, at 10:30 a.m. before Judge James P. Buchele. Jenkins, the [263 Kan. 353] codefendant, her counsel, the assistant district attorney, and the subpoenaed witnesses (seven police officers) appeared for the preliminary hearing at the appointed time. Johnson did not. Johnson had not informed the judge, his client, or other counsel either that he would be absent or where he would be.

On July 19, 1996, Judge Buchele filed an order imposing sanctions. Johnson was required to pay the clerk of the district court $550 as compensation for the 2 hours the police officers and attorneys spent waiting for him on July 2 (seven police officer witnesses, each at $25 per hour, and an assistant district attorney and a public defender, each at $50 per hour). The distribution was $350 to the City of Topeka, $100 to Shawnee County, and $100 to the State Board of Indigents' Defense Services.

The order recited the events of July 2, 1996, and reflected that Judge Buchele had verified: (1) on July 1, 1996, Johnson had requested the date and time for the conflicting hearing before Judge Parrish; (2) Johnson did not advise Judge Parrish of the conflict; (3) the hearing before Judge Parrish at 10:30 a.m. lasted only 15 to 20 minutes; (4) by 11 a.m., Johnson had been told that everyone was waiting on him for the preliminary hearing; and (5) after being told that the preliminary hearing would begin at 1:30 p.m., Johnson left Topeka shortly before noon to attend a meeting in Lawrence. He did not tell anyone connected with Jenkins' case that he would be late for the rescheduled 1:30 p.m. preliminary hearing.

Johnson moved for a due process hearing or, alternatively, that the sanctions be set aside as invalid. Judge Buchele denied the motion. The order noted that Johnson had requested a hearing instanter, which he received, and that he had waived any further due process rights at the district court level.

DISCUSSION

In addressing Johnson's claims that the district court orders violated his K.S.A. 20-1201 et seq. statutory and constitutional due process rights, we will reference: (a) the nature of this proceeding (including standard of review); (b) applicable statutory requirements; (c) civil or criminal contempt; (d) due process requirements; (e) direct or indirect contempt; (f) jurisdiction; (g) waiver of statutory or due process requirements; (h) recusal; (i) sufficiency of the evidence; (j) propriety of the attorney fees assessment; and (k) abuse of discretion.

Nature of the Proceeding

Johnson argues that this matter should be analyzed as a contempt of court proceeding. We agree. He contends that "the sanction involved here was not possible under the provisions of K.S.A. 20-1201 et seq." We disagree. Neither the district court's order imposing sanctions (first order) nor the follow-up order denying Johnson's motion to set aside sanctions (second order) contains any express finding that Johnson was in contempt of court. However, those orders fined Johnson for his tardiness, his earlier failure to appear at the originally scheduled time, and his failure to advise the court of his whereabouts or of his conflicting hearing in another case. The district court's second order said in part: "The sanctions imposed were not made pursuant to K.S.A. 20-1201, but were based upon the inherent power of the Court to uphold the integrity of the Court['s] scheduling order and the judicial process." (Emphasis added). Therein lies the crux of our issue. Initially, we must decide how to treat the district court's rejection of K.S.A. 20-1201 et seq. in processing Johnson's actions.

Despite the characterization of its order, a district judge's description of his or her own action does not control the classification of the action. State v. Whorton, 225 Kan. 251, 254, 589 P.2d 610 (1979). Judge Buchele sanctioned Johnson for behavior the judge believed to be "disruptive and disrespectful to the Court and disrespectful to everyone else involved," constituting an "intentional, arrogant, and flagrant disregard of the Court's schedule." The absence of the word "contempt" from the order does not change the nature of the action, if the facts call for contempt.

Codification of contempt of court procedures occurred early in this state's history. Johnson v. Johnson, 11 Kan.App.2d 317, 319, 721 P.2d 290 (1986); see, e.g., L. 1897, ch. 106, § 1, now K.S.A. 20-1201. We have acknowledged the codification in resolving earlier cases. See State v. McPherson, 208 Kan. 511, 517, 493 P.2d 228 (1972) ("Under the provisions of K.S.A. 20-1201 all classes of contempts of court must be proceeded against only as prescribed in K.S.A. Chap. 20, Art. 12. Informalities in procedure are not permissible.").

Does a district judge have the inherent power to punish for contempt of court as an alternative to K.S.A. 20-1201 et seq.? The consistency of our cases over time, emphasizing legislative regulation of contempt, signals the answer. The power to punish for contempt of court does not arise from legislative action, but is inherent in the court itself. Cyr v. Cyr, 249 Kan. 94, 99, 815 P.2d 97 (1991). However, the...