State v. Williams

• Decision Date: 23 November 1994
• Docket Number: No. 71771,71771
• Citation: 884 P.2d 755,20 Kan.App.2d 185
• Parties: STATE of Kansas, Appellee, v. David L. WILLIAMS, Defendant. Jillian T. Waesche and Georgina Adami, Respondents in Contempt Proceedings/Appellants.
• Court: Kansas Court of Appeals

Page 755

884 P.2d 755

20 Kan.App.2d 185

STATE of Kansas, Appellee, v. David L. WILLIAMS, Defendant Jillian T. Waesche and Georgina Adami, Respondents in Contempt Proceedings/Appellants.

No. 71771.

Court of Appeals of Kansas.

Nov. 23, 1994.

Syllabus by the Court

1. The standard of review for an order of contempt is abuse of discretion. The appellate court reviews the record to determine if the district court's exercise of discretion constituted reversible error. Appellate review focuses on whether the facts of the case show conduct that constitutes contempt.

2. Whether a particular act or omission is contemptuous depends upon the nature of the act or omission as well as all surrounding circumstances, including the intent and good faith of the party charged with contempt.

3. Contemptuous conduct is that which obstructs or tends to obstruct the administration of justice. Direct contempt occurs in the presence of the judge or during the sitting of the court. Generally, if the contempt in question is a violation of an order made for the benefit or advantage of another party, the contempt will be considered civil.

4. Generally, the appropriate method for challenging the validity of a court order is to challenge the order by moving the court to set it aside.

5. Under the facts shown, appellants' refusal to comply with the district court's order was based on a good faith belief that the district court's erroneous order would violate constitutional protections guaranteed a criminal defendant. Consequently, the appellants' claimed contemptuous actions are excusable.

Judith E. Reed, Asst. Public Defender, for appellants.

Doyle Baker, Asst. Dist. Atty., Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before ELLIOTT, P.J., RULON, J., and DAVID F. BREWSTER, District Judge, Assigned.

RULON, Judge:

Jillian T. Waesche and Georgina Adami appeal from a contempt citation. We reverse and remand with directions.

The facts are essentially undisputed and are as follows:

On July 27, 1993, the State charged defendant, David Williams, with numerous offenses, including first-degree murder and rape. Acting Chief Public Defender Jillian T. Waesche and Assistant Public Defender Georgina Adami, appellants, represented Williams. On February 14, 1994, the defense filed a notice of intent to use an insanity plea. The public defender's office scheduled and paid for a psychiatric examination of defendant. The State filed a motion to compel discovery of the report from the psychiatric examination. The State claims K.S.A.1993 Supp. 22-3219 required the release of this psychiatric report.

Appellants refused to release the report to the State because the district court had not ordered the examination. Appellants also claimed the State's request was premature because the defense had not decided whether to raise an insanity defense. The district court ordered the defense to make the report available by May 4, 1994.

Ultimately, the defense withdrew its notice of intent to use the insanity plea. On May 4, 1994, appellants notified the district court that an insanity defense would not be presented. Defense counsel requested that the court vacate its order to produce the psychiatric report. A hearing was held, and the district court ordered the report produced "whether it's going to be used to not." Appellants refused to comply.

During an off-the-record discussion, the district court and the State agreed the order to produce would be satisfied if appellants turned the report over to the court. Appellants refused to produce the report. The court found each appellant guilty of direct contempt and ordered the public defender's office to pay $25 per day per attorney until the report was produced.

STANDARD OF REVIEW

Appellants argue this contempt finding should be set aside because the underlying court order to produce the report was erroneous. Specifically, appellants contend that a general discovery provision, K.S.A.1993 Supp. 22-3212(c), applied after the insanity defense was withdrawn.

The standard of review for an order of contempt is abuse of discretion. In re Conservatorship of McRoy, 19 Kan.App.2d 31, 33, 861 P.2d 1378 (1993). The appellate court reviews the record to determine if the district court's exercise of discretion constituted reversible error. Edmiston v. First Nat'l Bank of Holcomb, 242 Kan. 13, 15, 744 P.2d 829 (1987); Electronic Realty Assocs., Inc. v. Gomez, 18 Kan.App.2d 122, Syl. p 1, 848 P.2d 458 (1993). Appellate review focuses on whether the facts of the case show conduct that constitutes contempt. State v. Pondexter, 225 Kan. 425, 429, 590 P.2d 1074 (1979). Transcripts from contempt hearings should be preserved in order to facilitate comprehensive review of the circumstances surrounding a contempt order. See Johnson v. Johnson, 11 Kan.App.2d 317, 320-21, 721 P.2d 290 (1986).

"Whether a particular act or omission is contemptuous depends upon the nature of the act or omission as well as all surrounding circumstances, including the intent and good faith of the party charged with contempt." (Emphasis added.) 19 Kan.App.2d at 33, 861 P.2d 1378 (citing Threadgill v. Beard, 225 Kan. 296, 304, 590 P.2d 1021 [1979].

VALIDITY OF PRODUCTION ORDER

Contemptuous conduct is that which obstructs or tends to obstruct the administration of justice. 225 Kan. at 429, 590 P.2d 1074 (citing In re Sanborn, 208 Kan. 4, 14-15, 490 P.2d 598 [1971]. Direct contempt occurs in the presence of the judge or during the sitting of the court. See K.S.A 20-1202. Generally, if the contempt in question is a violation of an order made for the benefit or advantage of another party, the contempt will be considered civil. Electronic Realty Assocs., Inc. v. Gomez, 18 Kan.App.2d at 125, 848 P.2d 458. Here, appellants refused to follow an order to produce made by the trial judge in open court.

The actions of appellants are not disputed. The question is whether the refusal to comply with the district court order can be excused by the circumstances surrounding the order to produce the report. Appellants' primary argument is that the district court's order to produce was erroneous. Our Supreme Court, however, has held a valid contempt order can be based upon failure to obey an erroneous order:

"Even if a court issues an erroneous order, the parties to the litigation must obey the order when it was within the court's jurisdiction, and, for the sake of orderly administration of justice, any disobedience with that order may be punished as contempt." Koch Engineering Co. v. Faulconer, 227 Kan. 813, 329-30, 610 P.2d 1094 (1980) (citing Small v. Small, 195 Kan. 531, 534, 407 P.2d 491 [1965].

Generally, the appropriate method for challenging the validity of a court order is to challenge the order by moving the court to set it aside. See, e.g., State, ex rel., v. Engler, 181 Kan. 1040, Syl. p 2, 317 P.2d 432 (1957).

Despite the above-noted general rule, our Supreme Court has indicated a willingness to review the merits of an order to produce underlying a contempt citation. See In re Pennington, 224 Kan. 573, 581 P.2d 812 (1978), cert. denied 440 U.S. 929, 99 S.Ct. 1265, 59 L.Ed.2d 485 (1979). In Pennington, a newspaper reporter refused to disclose the identity of a confidential source who provided information relevant to the defense in a first-degree murder trial. The district court found the reporter in contempt because the information was not protected by any interpretation of constitutional privilege. Pennington appealed and argued that the district court's order should be reversed and the contempt citation vacated. 224 Kan. at 574, 581 P.2d 812.

In Pennington, this court and our Supreme Court reviewed the district court's ruling on a claim of constitutional privilege. Our Supreme Court discussed and specifically affirmed the lower court's ruling as to the relevance of the information ordered to be produced. 224 Kan. at 577, 581 P.2d 812; see In re Pennington, 1 Kan.App.2d 682, 573 P.2d 1099 (1977) (summarily affirming the trial court's order). Our Supreme Court indicated the contempt citation was valid because Pennington voluntarily refused to comply with a district court order. 224 Kan. at 578, 581 P.2d 812.

The United States Supreme Court has recognized the general validity of a contempt citation based upon an erroneous order. See Maness v. Meyers, 419 U.S. 449, 459, 95 S.Ct. 584, 591, 42 L.Ed.2d 574 (1975). The Maness Court however, created an exception to the stated general rule. In Maness, an attorney advised his client not to comply with an order to produce documents in a civil case. The attorney believed, in good faith, that the materials (pornographic magazines) would incriminate his client. 419 U.S. at 458, 95 S.Ct. at 590-91. The trial judge found both the attorney and client guilty of contempt. The Court held it was necessary to evaluate the underlying discovery order because the Fifth Amendment's protection against self-incrimination was involved. 419 U.S. at 461, 95 S.Ct. at 592.

The Maness Court decided that pre-compliance review was appropriate because adherence to the challenged order could have caused "irreparable injury because appellate courts cannot always 'unring the bell' once the information has been released." 419 U.S. at 460, 95 S.Ct. at 592. The Maness Court reversed the challenged contempt citation, stating:

"[I]t appears that there was no avenue other than assertion of the privilege, with the risk of contempt, that would have provided assurance of appellate review in advance of surrendering the magazines. We are satisfied that petitioner properly performed his duties as an advocate here, and he cannot suffer any penalty for performing such duties in good faith." 419 U.S. at 470, 95 S.Ct. at 597.

The exception crafted in Maness has been expanded by the Illinois state courts to create a clear rule for evaluating contempt citations arising from discovery orders. Consequently, in...