In re McDaniel ( 2017 )

No. 115,614
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In re TERRA L. MCDANIEL.
SYLLABUS BY THE COURT
1.
While the timely filing of a notice of appeal is jurisdictional based on the statutory
deadline, most of the subsequent steps in prosecuting an appeal are generally provided by
appellate rule and are enforceable as this court deems appropriate in its discretion.
2.
An appellate court applies a dual standard of review from a finding of contempt by
the district court. The court exercises unlimited review over the question of whether
conduct is contemptuous and applies an abuse of discretion standard when reviewing the
sanctions imposed.
3.
There are two classes of contempt: direct contempt and indirect contempt.
Conduct is classified as direct contempt when the underlying contemptuous acts are
committed in open court in the presence of the judge. The accused is entitled to fewer
statutory and constitutional procedural safeguards in direct contempt proceedings because
the court has personal knowledge of the misconduct.
4.
In cases of direct contempt, the district court may impose summary punishment
without written accusation as long as the court enters a written judgment that specifies the
conduct constituting direct contempt, identifies the statement of the defense offered by
the accused, and designates the sentence imposed.
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5.
If the judge needs to rely on statements and testimony from others regarding what
they know about the contemptuous acts, the misconduct constitutes indirect contempt.
The accused is entitled to greater constitutional procedural safeguards in proceedings for
indirect contempt because the judge has no personal knowledge of the misconduct.
Kansas provides a detailed statutory procedure that must be followed in cases of indirect
contempt.
6.
In addition to the statutory classifications of direct contempt and indirect
contempt, Kansas courts make a distinction between contemptuous conduct that is civil in
nature and that which is criminal in nature. Conduct giving rise to sanctions for criminal
contempt is directed against the dignity and authority of a court or a judge acting
judicially; the essence of criminal contempt is that the conduct obstructs or tends to
obstruct the administration of justice. Criminal contempt punishes a party for a past
violation of an order with a fixed fine or jail sentence as a punitive sanction.
7.
Civil contempt is a remedial or corrective action meant to coerce a party into
abiding by the terms of a court order going forward. Upon a finding of civil contempt, a
court may jail a particularly recalcitrant party for an indefinite period until he or she
agrees to comply with the order. The party in civil contempt must be permitted to "unlock
the door of the jail" by doing what the party previously failed to do.
8.
The failure of a prospective juror to appear for jury duty is governed by K.S.A. 43-
165, which states that each judicial district may make rules governing jury service and
enforcement, but unexcused, nonattendance of a person summoned unless reasonable
cause for such nonattendance be shown to the satisfaction of the court shall be punished
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by the imposition of a fine not exceeding $100 for each day of unexcused absence. As a
matter of public policy, then, the legislature has provided a punitive statutory alternative
to criminal contempt proceedings when a person is summoned for jury duty and the court
ultimately finds that a failure to appear was without reasonable cause.
9.
Pursuant to K.S.A. 20-1203, a direct contempt may be punished summarily,
without written accusation against the person arraigned, but if the court or judge in
chambers shall adjudge him or her guilty thereof a judgment shall be entered of record, in
which shall be specified the conduct constituting such contempt, with a statement of
whatever defense or extenuation the accused offered thereto, and the sentence of the court
thereon. Because failure to comply with this statute is jurisdictional, direct contempt
orders that do not meet the requirement set forth in the statute are void.
Appeal from Sedgwick District Court; CHRISTOPHER M. MAGANA, judge. Opinion filed June 9,
2017. Reversed and remanded with directions.
Jess W. Hoeme, of Joseph, Hollander & Craft LLC, of Wichita, for appellant.
Kristafer R. Ailslieger, deputy solicitor general, and Derek Schmidt, attorney general, for
appellee.
Before GREEN, P.J., STANDRIDGE and GARDNER, JJ.
STANDRIDGE, J.: Terra L. McDaniel appeals her conviction for direct criminal
contempt, arguing that appearing late for her second day of jury duty is insufficient to
support a conviction for direct criminal contempt of court under the facts presented. The
State claims we lack jurisdiction to hear this appeal and, even if we had jurisdiction, the
district court did not err in finding McDaniel guilty of direct criminal contempt. For the
reasons stated below, we reverse McDaniel's conviction.
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FACTS
McDaniel was summoned for jury duty with instructions to appear on Monday,
December 7, 2015. She timely appeared and reported to the jury clerk on that day. The
jury clerk assigned a panel of over 30 jurors, including McDaniel, to District Judge
Christopher M. Magana's division for a criminal jury trial. McDaniel was not in the initial
group of 24 jurors seated in the jury box for questioning but instead was seated in the last
row of the courtroom gallery with a group of excess jurors available in the event the
initial group depleted due to excused or dismissed jurors. Judge Magana released the jury
panel on Monday afternoon at 4:40 and advised them to return at 8:45 the next morning
to resume jury selection.
McDaniel contacted the district court around 8:30 the next morning, Tuesday,
December 8, 2015, to advise the jury clerk that she was unable to obtain child care for her
young son and would not be able to report for jury duty until she dropped her child off at
the afternoon pre-kindergarten class in which he was enrolled. McDaniel advised the jury
clerk that, alternatively, she could bring her young son in with her to the courthouse until
his afternoon class started. The jury clerk told McDaniel that she needed to report to jury
duty in the morning but could not bring her son when doing so. In response, McDaniel
reiterated she could only report in the morning if she could bring her young son since she
could not leave him at home alone. Without addressing McDaniel's dilemma, the jury
clerk insisted that McDaniel was required to report in the morning but could not bring her
son. As McDaniel continued to restate her dilemma and the jury clerk continued to restate
the court's position, it appears the line of communication between the two individuals
eventually deteriorated and the jury clerk ultimately claimed McDaniel was "extremely
rude and yelling." Although there was no transcript of the phone call, McDaniel said she
asked the jury clerk at some point whether the court was going to put her in jail based on
her inability to obtain daycare for her son that morning. McDaniel also said she asked to
speak to a supervisor but instead of granting the request, the jury clerk responded that the
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jury clerk would speak with the supervisor and get back to McDaniel, which apparently
never happened.
McDaniel reported to the jury clerk at approximately 2:15 p.m., after dropping her
child off at his afternoon pre-kindergarten class. The jury clerk left to inform Judge
Magana that McDaniel had arrived. Upon return, the jury clerk informed McDaniel to
appear at a hearing scheduled for Friday, December 18, 2015, at 3 p.m. to explain to the
court why McDaniel failed to report to jury duty that morning in a timely manner.
Although Judge Magana later told McDaniel that he instructed the jury clerk to advise
McDaniel that the hearing was one for direct criminal contempt, McDaniel argues in her
brief that she was told only that she should be prepared to explain to Judge Magana why
she was tardy in reporting to jury duty on Tuesday, December 8, 2015.
McDaniel appeared as directed on December 18, 2015, ready to explain her child
care dilemma. For purposes of context, we have provided a copy of the transcript from
this hearing below.
"THE COURT: We're on the record in the matter of Terra McDaniel with regard
to a proceeding for direct criminal contempt.
"Ma'am, you are Miss McDaniel, is that correct?
"MS. MCDANIEL: Yes.
"THE COURT: And you were given notice to appear today both in person by the
jury clerk for today's hearing and through at least two letters that were mailed to you,
correct?
"MS. MCDANIEL: Yes.
"THE COURT: And you are aware of what the proceeding is about today?
"MS. MCDANIEL: Yes.
"THE COURT: You have been directed to appear today to determine whether
you are in direct contempt of court for failing to follow the court's order when you
appeared last week for jury duty.
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"For the record, Miss McDaniel was summoned to jury duty and appeared on
Monday, December 7th, 2015, on a jury panel in the matter of State versus Dung Tran, 15
CR 1399. Miss McDaniel was one of a jury panel in excess of 30 people that was brought
up in the afternoon on December 7th for jury selection or voir dire. And following jury
selection for that day the jury panel was released at 4:40 p.m. on December 7th and the
entire jury panel was advised to return back at 8:45 the following morning to continue
with jury selection which was an order of the court.
"On the morning of December 8th, 2015, the court was contacted approximately
8:30 a.m. give or take by the jury clerk's office who advised that jury panelist Terra
McDaniel had called in that morning to indicate she was not returning to jury service that
day. And in the course of her conversation with the jury clerk she yelled at the jury clerk
over the phone repeatedly and was asked on at least two occasions to stop yelling, but
would not. And stated that she did not have day care and couldn't come in and that she
was refusing to come in and stated, 'What were we going to do? Put her in jail?'
"At that time I noted the information from the jury clerk and proceeded with our
jury selection after obtaining additional jury panelists from the jury room to fill out our
panel at that time.
"For the record, Miss McDaniel was in the group of jurors that had not been
seated for questioning with the initial 24 jurors that we were examining. She was in a
group of approximately six to eight jury panelists in the last row of our gallery in the
courtroom that we were using to replace jury panelists who were either excused or
dismissed during the course of jury selection.
"The court was later advised on December 8th that Miss McDaniel had appeared
at approximately 2:15 that day in the jury clerk's office seeking her certificate to be
signed by the jury clerk indicating to her employer that she had, in fact, been at jury
service and at that time the jury clerk advised me of Miss McDaniel's appearance and I
directed them to tell her to appear for the contempt hearing today on December 18th at 3
p.m.
"Miss McDaniel, today you are here for determination of whether or not you
were in direct contempt of court for failing to follow my order on December 7th to return
the next day.
"Do you wish do make any statement with regard to that accusation of contempt
at this time?
"MS. MCDANIEL: That was partial lies and partial truth.
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"THE COURT: What are you talking about?
"MS. MCDANIEL: I asked to speak to a supervisor after I spoke with the jury
clerk. I explained to her that I did not have day care. That I could come in after I dropped
my son off to Pre-K in the afternoon. Otherwise, I would have to bring him.
"She said, 'No, you cannot bring your son.' I asked for a supervisor. She
continued to talk. I told her, 'If I don't have day care then what do I do? You guys put me
in jail for not having day care for kids? I can't leave him alone by himself.'
"She continued to say, 'Well, you can't bring your son.' So that's when I asked to
speak to a supervisor. She would speak with her supervisor and she would speak with me
and they would get back with me. They never got back with me.
"So after I dropped my son off I came up here to see if I could continue like I had
asked earlier with the jury selection. That's when she said she could fill out the card for
me. I did need it for the 7th. Then she—my mom asked her if she could come up here and
ask where I go from here because she didn't have an answer at that time. She just gave me
my card. I was going to leave with just that. I didn't have an answer for anything.
"And so that question got brought up if we could see what your decision was.
That's when she came up here. Came down and told me that I was in contempt of court.
"To my knowledge there was another juror that was also late. That same person
said I was yelling at her and that she was passed through. She could come up here. So, I
came late, too, because I didn't have a child—I could have brought him. I said I'm a
single parent.
"THE COURT: Do you consider 2:15 in the afternoon to be late when you were
told to be here at 8:45?
"MS. MCDANIEL: Yes, it's late.
"THE COURT: Anything further, Miss McDaniel?
"MS. MCDANIEL: No.
"THE COURT: I will also note for the record, Miss McDaniel, that I have your
juror questionnaire card in front of me that was provided along with the group of the
other jury panelists on December 7th. And you stated on the line if you believe you
should be excluded please state your reason. 'I am a single parent of two. I also work full-
time and help take care of my uncle before I go to work on my lunch break and after
work.' At the bottom you wrote, 'The judicial system is against my religious beliefs. I feel
I am really the wrong candidate to be a juror.'
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"Miss McDaniel, I will advise you that of the jury panel that we had that day
there were a great many of them who had scheduling issues and problems with being
present for jury service. Those were relayed to us both through their juror cards and
statements they had put on them and also through responses to questions and statements
during their questioning by the attorneys.
"I will tell you that a number of them were the sole providers of income for their
families. There were several that were self-employed and who indicated by their presence
for jury service they were not making any income that day and it was a hardship for them
to be present for jury service, much less to serve on a jury.
"There were a number that had various medical issues, including an individual
who had significant incontinence issues that made sitting for jury selection even difficult.
"Individuals with hip issues, back issues. Some who indicated they were single
parents and serving would be problematic. And finally an individual who he had a
doctor's appointment that they had taken two months to obtain. And if they appeared for
jury service the next day, December 8th, they would have to miss that doctor
appointment.
"Miss McDaniel, all of those individuals with the exception of you showed up at
8:45 on December 8th. All of them, despite the inconvenience to both those individuals
and everyone else on the panel, returned pursuant to my court order and made themselves
available for jury recollection.
"Explain to me why you should be allowed to get a pass for that behavior when
you refused to come in and all of those other individuals did come in?
"MS. MCDANIEL: I was willing to bring my son with me. I don't have anybody
else. It's just me. My dad is sick. My mom was my plan. Monday night my dad went to
third shift he went on emergency FMLS. My mom says I have to take your dad to the
hospital. I can't watch your son. That's why I called can I bring him because that's my
only option. My mom is all I have. I don't have a dad. I don't have anybody else.
"THE COURT: I expect that there were numerous problems caused to those
individuals by having to come in the next day, too, similar to the ones you have just
described and they did not contact our jury clerk and yell at the personnel and refused to
come in.
"Miss McDaniel, it's my understanding you are no stranger to the court system, is
that correct?
"MS. MCDANIEL: No, sir.
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"THE COURT: It would appear from reviewing the court records that you have
both filed and had filed against you a protection from abuse order, is that correct?
"MS. MCDANIEL: Correct.
"THE COURT: And it's my understanding you have recently or still have
proceeding against you in municipal court some sort of domestic violence matter, is that
correct?
"MS. MCDANIEL: No, sir.
"THE COURT: And what's the status of that?
"MS. MCDANIEL: To my knowledge I don't have any.
"THE COURT: You don't have any what?
"MS. MCDANIEL: To my knowledge there's no opening on anything.
"THE COURT: Were you arrested for that?
"MS. MCDANIEL: Arrested for what?
"THE COURT: Some sort of—
"MS. MCDANIEL: I've been arrested twice for DV. Yes. Over six years ago.
Over six years ago, I believe.
"THE COURT: And what is your employment situation right now?
"MS. MCDANIEL: I am a CNA. After this happened I put in my two weeks. I
was hoping you guys could give me another chance to be on jury duty, but it will be less
hectic. I will have one job. Hopefully, I can come up with somebody to watch my son.
"First off, they had told me I could just come in.
"THE COURT: I just wanted to know what your employment situation is.
"MS. MCDANIEL: I put my two weeks in that week so this is my last day.
"THE COURT: So you do not have employment?
"MS. MCDANIEL: I have my first shift job. I work with my uncle in the
morning. I'm letting my second shift job go as of today.
"THE COURT: You work for your uncle doing what?
"MS. MCDANIEL: HHA.
"THE COURT: What is that?
"THE COURT: Home Health Aide. Home health care.
"THE COURT: And you say you gave your two weeks' notice at your CNA job
for what reason?
"MS. MCDANIEL: Because it's hectic. My life is jammed. I don't have any
openings so something like this happened.
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"THE COURT: Something like what?
"MS. MCDANIEL: Like jury duty. Something pops up out of nowhere.
"THE COURT: You are telling me you have quit your certified nursing assistant
job so you can be available for the possibility of jury service popping up? Something like
that, is that what you are saying?
"MS. MCDANIEL: Yes. Yes, sir.
"THE COURT: Miss McDaniel, I am finding you in violation of direct
contempt. That is direct criminal contempt of court for failing to follow my order to
return on December 8th.
"I do not find your explanation to be satisfactory to the point that it excuses your
conduct. You chose to disregard and ignore that court order. That was not an option and
the fact that that particular jury panel had so many individuals with conflicts and
problems and concerns with serving on a potential jury, but they still made the successful
effort to appear as directed on December 8th. And the fact that despite your version of
events what I was related by the jury clerk, Miss Karen Spencer and her staff, is not the
apparent mild discussion you indicated took place between you, but they indicated you
were extremely rude and yelling during that conversation.
"Those two facts: That being the jurors who did return and your behavior in the
aftermath of disregarding my court order highlight your conduct as not only
contemptuous, but also inconsiderate of those involved in that case.
"That conduct cannot go without consequences. As such, under K.S.A. 20-1203
for direct criminal contempt of court I'm imposing a six month controlling jail sentence. I
am ordering that you serve 30 days in jail beginning today. I am authorizing work release
on that sentence.
"MS. MCDANIEL: My kids are in school. I will lose them. I'm going to lose my
kids. Your Honor—
"THE COURT: Yes, Miss McDaniel.
"MS. MCDANIEL: Can I please—I was supposed to return back to work. This
is my last—
"THE COURT: I made my ruling, Miss McDaniel. You will need to wait here in
the courtroom until a deputy arrives. If you fail to serve the 30 days or return to work
release as directed during that 30 day imposed sentence then you will be subject to the
full six months in jail which is your controlling sentence.
"We are in recess."
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Although we cannot determine from the transcript what time the hearing ended,
we do know that McDaniel was transported from the courtroom to the jail at some point
in the late afternoon on Friday, December 18, 2015. At 4:41 that afternoon, a journal
entry memorializing the contempt proceedings was filed and docketed in the case of "In
re Terra L. McDaniel, B/F; D.O.B: XX/XX/1988," case number 15 MR 1061. The
journal entry was filed in the Criminal Department of the Eighteenth Judicial District,
Sedgwick County, Kansas, and stated as follows:
"JOURNAL ENTRY OF JUDGMENT RE DIRECT CRIMINAL CONTEMPT
"NOW ON THIS 18th day of December, 2015, thc Court finds the above named
person (hereafter TLM) in direct criminal contempt of court pursuant to K.S.A. 20-1202
and 20-1203, based on TLM's statements to the court during the sitting of the court.
"Pursuant to K.S.A. 20-1203, the court incorporates by reference herein the
extensive record made on this day which:
"1. specifies '. . . the conduct constituting such contempt. . . .'; and
"2. contains '. . . a statement of whatever defense or extenuation [CAJ] [sic] offered . . . .'
"The court sentenced TLM to six (6) months controlling sentence in the county
jail and imposed 30 days in jail forthwith with work release authorized.
"All proceedings involving this contempt hearing were on-the-record in open
court.
"IT IS SO ORDERED.
"CHRISTOPHER MAGANA, JUDGE"
The facts we have recited so far were obtained from the record in this matter,
which consists of only 26 pages—17 of which are the transcript and journal entry of
judgment set forth above. Out of the remaining nine pages in the record, only one is
substantive and that is the journal entry dated December 23, 2015, which commuted
McDaniel's 6-month jail sentence imposed to time served. The following facts, which
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summarize attempts made by counsel to help McDaniel, were obtained from the appellate
brief filed by McDaniel's attorney. These facts are not dispositive of whether there is
sufficient evidence to support McDaniel's conviction for direct criminal contempt.
Instead, these facts fill in the bits and pieces of information necessary that may be helpful
in providing some level of context for the criminal contempt proceedings.
On Monday, December 21, 2015, the first business day after McDaniel was jailed,
McDaniel's mother contacted attorney Jess Hoeme by telephone to represent her
daughter. At this point, McDaniel already had spent 3 days in the Sedgwick County Jail.
Hoeme was out of town for another hearing on Monday, so he attempted to review the
district court's docket information online. Hoeme, however, was unable to find any
information about McDaniel or the case in the electronic case system. Hoeme contacted
the jail, and a jail employee advised Hoeme that the case had an "MR" designation.
Hoeme followed up with a call to the Sedgwick County District Court clerk's office. A
court clerk advised Hoeme that "MR" stood for "miscellaneous record" and meant the
case file was sealed by the court and not open for examination. The court clerk further
advised that because the case about which Hoeme was inquiring was designated as an
"MR" case by Judge Magana, the only judge who could enter an order permitting review
of the case file was Judge Magana.
Because Hoeme was out of town, he asked another attorney from his law firm to
meet with Judge Magana in his chambers as soon as possible to get more information
about the claims being made by McDaniel's mother. The colleague did as instructed,
advising Judge Magana that his firm had been retained to assist McDaniel and was
requesting permission to review the sealed case file. Judge Magana denied the request.
Later that day (Monday, December 21, 2015), Hoeme attempted to electronically file an
entry of appearance in the matter without success, likely due to the closed nature of the
proceeding.
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At some point prior to 9 a.m. on Tuesday, December 22, 2015, Judge Magana
contacted the jail staff and ordered that McDaniel be brought to his courtroom for a
hearing early Tuesday morning. There was no notice of this hearing provided to
McDaniel or her attorneys. At this hearing, Judge Magana commuted McDaniel's
sentence to time served and released her from custody. Hoeme, who now was back in
town, arrived at the courthouse at 9 a.m. on Tuesday, December 22, 2015. By the time he
arrived, however, McDaniel's hearing was over, her sentence had been commuted to time
served, and she had been released.
ANALYSIS
McDaniel makes several arguments on appeal in an attempt to reverse her
contempt conviction. First, she argues that her conduct was not directly contemptuous
because it did not occur in the presence of the district judge. McDaniel also argues that,
in summarily punishing her, Judge Magana violated her due process rights in several
instances, alleging she should have had the right to the representation of counsel, to
confront witnesses against her, to call witnesses on her behalf, to refrain from being a
witness against herself, and to exclude inadmissible character evidence. Finally,
McDaniel argues that even if she was properly convicted of direct contempt, Judge
Magana failed to properly journalize the entry of judgment.
Jurisdiction
As an initial matter, the State argues this court lacks jurisdiction to hear
McDaniel's appeal because the case was dismissed by the district court for lack of
prosecution and McDaniel failed to properly reinstate it. The existence of appellate
jurisdiction is a question of law over which appellate courts exercise unlimited review.
State v. Looney, 299 Kan. 903, 906, 327 P.3d 425 (2014).
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McDaniel was convicted on December 18, 2015, and timely filed her notice of
appeal on December 30, 2015. McDaniel failed, however, to timely docket her appeal
under Supreme Court Rule 2.04 (2017 Kan. S. Ct. R. 15) and failed to request an
extension of time to do so before the deadline expired. As a result, the district court
dismissed the appeal on March 30, 2016, pursuant to Supreme Court Rule 5.051 (2017
Kan. S. Ct. R. 32). On April 13, 2016, McDaniel filed a motion to docket out of time
which this court granted.
After McDaniel filed her appellate brief in this case, the State filed a motion in the
Court of Appeals to dismiss the appeal. The State argued that after an appeal is
dismissed, the proper procedural vehicle to revive the appeal is a motion for
reinstatement under Rule 5.051(b), not a motion to docket out of time like the one filed
by McDaniel in this case. Because McDaniel failed to file the proper motion to reinstate
the appeal, the State argues we have no jurisdiction to consider it.
Hoeme responded to the State's motion, acknowledging that he did not strictly
comply with Rule 5.051(b). Hoeme contended that good cause existed for denying the
State's motion because dismissing the appeal would create a manifest injustice for
McDaniel, who was not at fault for the failure to timely docket the case. The Court of
Appeals motions panel ordered Hoeme to file a written response indicating whether
counsel had actual knowledge of the district court's dismissal of the case prior to
docketing and why this court should not consider the appeal dismissed. Hoeme filed the
written response as directed, detailing his process to docket the appeal and again
emphasizing that the mistake was counsel's, not McDaniel's.
The motions panel denied the State's motion for dismissal, stating: "Although it is
clear that Appellant's attorney did not follow the proper procedure for reinstating an
appeal that has been dismissed by the district court, it appears that Appellant herself had
no knowledge of the attorney's failure to do so." The panel also stated that the appellate
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court's rules governing procedure and time limits are not jurisdictional, citing Adams v.
St. Francis Regional Med. Center, 264 Kan. 144, 151, 955 P.2d 1169 (1998).
The State claims the motions panel was in error and asks us to reverse that
decision. In support of its claim, the State reiterates the argument it made to the motions
panel: McDaniel's failure to file a motion to docket appeal out of time within 30 days as
set forth in Rule 5.051(b) deprives our court of jurisdiction to hear McDaniel's appeal.
We are not persuaded by the State's argument. Pursuant to K.S.A. 2016 Supp. 22-
3608(c), McDaniel had 14 days after the judgment of the district court to file her direct
appeal. While McDaniel filed her notice of appeal within 14 days as required, she failed
to properly docket it with this court. Under Rule 5.051(a) (2017 Kan. S. Ct. R. 32-33),
when "an appellant has filed a notice of appeal in the district court, but has failed to
docket [it] in compliance with Rule 2.04, the appeal is presumed abandoned and the
district court may enter an order dismissing the appeal." The order of dismissal is final
unless the appellant submits an application for reinstatement for good cause shown to the
clerk of the appellate courts within 30 days. Rule 5.051(b). McDaniel failed to request
reinstatement within the 30-day time period as required by Rule 5.051(b).
While the timely filing of a notice of appeal is jurisdictional based on the statutory
deadline, "most of the subsequent steps in prosecuting an appeal are generally provided
by appellate rule and are enforceable as this court deems appropriate in its discretion."
Fowler v. State, 37 Kan. App. 2d 477, 480-81, 154 P.3d 550 (2007); see Adams, 264 Kan.
at 151. Thus, an appellant's failure to take the proper steps to secure appellate review
does not affect this court's jurisdiction to entertain the appeal so long as the initial notice
of appeal was timely filed as required by K.S.A. 2016 Supp. 22-3608(c), which McDaniel
did here. 37 Kan. App. 2d at 480-81. Given the facts presented in this particular case, we
find jurisdiction is proper and move on to address the merits of McDaniel's appeal.
15
Direct contempt
McDaniel argues Judge Magana erred in finding her in direct contempt for being
tardy on the second day of jury duty because her conduct (tardiness) occurred outside the
presence of the court. On appeal from a finding of contempt, this court applies a dual
standard of review: we exercise unlimited review over the question of whether conduct is
contemptuous and apply an abuse of discretion standard when reviewing the sanctions
imposed. In re M.R., 272 Kan. 1335, 1342, 38 P.3d 694 (2002).
In Kansas, there are two classes of contempt: direct contempt and indirect
contempt. K.S.A. 20-1201. Pursuant to K.S.A. 20-1202, conduct is classified as direct
contempt when the underlying contemptuous acts are committed in open court in the
presence of the judge "where all of the essential elements of the misconduct are under the
eye of the court [and] are actually observed by the court." In re Oliver, 333 U.S. 257,
275, 68 S. Ct. 499, 92 L. Ed. 682 (1948). The accused is entitled to fewer statutory and
constitutional procedural safeguards in direct contempt proceedings because the court has
personal knowledge of the misconduct. Specifically, the district court may impose
summary punishment without written accusation as long as the court enters a written
judgment that specifies the conduct constituting direct contempt, identifies the statement
of the defense offered by the accused, and designates the sentence imposed. K.S.A. 20-
1203; 333 U.S. at 275.
If the judge needs to rely on statements and testimony from others regarding what
they know about the contemptuous acts, however, the misconduct is no longer direct
contempt but instead is indirect contempt. 333 U.S. at 275-76. The accused is entitled to
greater constitutional procedural safeguards in proceedings for indirect contempt because
the judge has no personal knowledge of the misconduct. "[K]nowledge acquired from the
testimony of others, or even from the confession of the accused, would not justify
conviction" unless the accused was provided with a trial and an opportunity to defend
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against the charges. 333 U.S. at 275. By statute, Kansas provides a detailed procedure
that must be followed in cases of indirect contempt. In particular, the district court on its
own motion must file an order to appear and show cause, and this motion must be
accompanied by an affidavit specifically setting forth facts supporting the allegation of
contempt. K.S.A. 2016 Supp. 20-1204a(a), (d). Thus, unless the contempt is "committed
in open court," the law requires that "one charged with contempt of court be advised of
the charges against him, have a reasonable opportunity to meet them by way of defense
or explanation, have the right to be represented by counsel, and have a chance to testify
and call other witnesses in his behalf, either by way of defense or explanation." In re
Oliver, 333 U.S. at 274-75; see K.S.A. 20-1201 et seq.
In support of her claim that the contemptible conduct in this case did not constitute
direct contempt, McDaniel relies on State v. Williams, 28 Kan. App. 2d 97, 100-01, 11
P.3d 1187 (2000). In Williams, a panel of this court held that a prospective juror's
conduct was not subject to summary sanction as direct criminal contempt where that
conduct was not directly observed by the district judge and court proceedings were not
significantly disrupted. In that case, Riggs was a prospective juror. During voir dire, the
judge asked the panel of prospective jurors to stand, raise their right hands, and be
affirmed or take the oath to serve as jurors in the courtroom. Riggs did not stand; it is
unclear whether she took her oath sitting down. The district judge found her to be in
contempt of court for failing to take the oath as instructed, set a sentencing date, and
asked if Riggs wanted an attorney. 28 Kan. App. 2d at 98. At the hearing, Riggs' counsel
explained that Riggs was not feeling well at voir dire because she had not taken her
medication for her carpal tunnel syndrome. Riggs and her attorney both stated that Riggs
did not intend to act in a disrespectful manner. The court nevertheless found Riggs in
contempt, fined her $200, sentenced her to a controlling jail term of 30 days, and placed
her on nonreporting probation. 28 Kan. App. 2d at 98-99. Riggs appealed, arguing in part
that her conduct was not contemptuous. 28 Kan. App. 2d at 100.
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On review, this court agreed that Riggs' conduct was not subject to summary
sanction as a direct contempt. The panel noted that the district judge stated on the record
during voir dire that he did not directly observe Riggs' conduct, and he relied on after-
the-fact conversations with other jurors to determine that the conduct was contemptuous.
The Williams court also found the conduct at issue did not constitute criminal contempt
because "Riggs caused no significant disruption in the trial; voir dire was able to proceed
to completion as soon as the judge told her to take a different seat." 28 Kan. App. 2d at
100-01. As opposed to civil contempt, conduct giving rise to sanctions for criminal
contempt is "'directed against the dignity and authority of a court or a judge acting
judicially, with punitive judgment to be imposed in vindication; its essence is that the
conduct obstructs or tends to obstruct the administration of justice.'" State v. Jenkins, 263
Kan. 351, 358, 950 P.2d 1338 (1997). Criminal contempt punishes a party for a past
violation of an order with a fixed fine or jail sentence as a punitive sanction. See In re
Marriage of Shelhamer, 50 Kan. App. 2d 152, 155-56, 323 P.3d 184 (2014) (discussing
direct and indirect contempt and civil and criminal remedies).
Civil contempt, on the other hand, is a remedial or corrective action meant to
coerce a party into abiding by the terms of a court order going forward. Upon a finding of
civil contempt, a court may jail a particularly recalcitrant party for an indefinite period
until he or she agrees to comply with the order. The court may impose a periodic fine—
daily or weekly, for example—or some other coercive sanction until the party complies.
50 Kan. App. 2d at 155-56. The party in civil contempt must be permitted to "unlock the
door of the jail" by doing what the party previously failed to do. In re J.T.R., 47 Kan.
App. 2d 91, Syl. ¶ 6, 271 P.3d 1262 (2012).
Like the district judge in Williams, Judge Magana stated during the contempt
hearing that he learned about McDaniel's tardiness in appearing for jury duty from the
jury clerk; McDaniel did not interact with Judge Magana at all on Tuesday, December 8,
2015, the day of the alleged contemptuous conduct. And there is no evidence McDaniel
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caused an interruption in the court proceedings by arriving late for the second day of jury
duty. Thus, although labeled as such by the district court, it appears McDaniel's conduct
does not qualify as direct contempt or criminal contempt.
But the State contends that the analysis in Williams is inapplicable given that
Kansas Supreme Court precedent construed the failure to appear in court as a direct
contempt under Jenkins, 263 Kan. 351. In Jenkins, an attorney failed to appear at his
client's preliminary hearing and was late for the rescheduled hearing later that day. The
district judge filed an order imposing contempt sanctions, and the attorney appealed. 263
Kan. at 352-53. In analyzing an attorney's conduct as contemptuous, the Kansas Supreme
Court adopted a "hybrid contempt approach," under which the characterization of an
attorney's failure to appear as direct or indirect is deferred until after the contemnor has
an opportunity to explain his or her actions leading to the contempt charge. If the
contemnor provides an adequate explanation for his or her absence, then the inquiry ends.
But, if the contemnor refuses to explain his conduct or provides an insulting or
inadequate explanation, the district court may treat the offense as direct contempt because
both the conduct leading to the charge and the inadequate explanation occurred in the
presence of the court. 263 Kan. at 363. The Supreme Court upheld the attorney's direct
contempt conviction in Jenkins because the unsatisfactory explanation for the absence
was in the court's presence and that the attorney's absence caused a loss of valuable time
to the court, the parties, other attorneys, and the witnesses who had to wait several hours
for the attorney to appear for the hearing. 263 Kan. at 358, 363-64.
The State argues that under Jenkins' hybrid contempt approach, both McDaniel's
absence from jury duty and her unsatisfactory explanation occurred in the presence of the
court. We are not persuaded by the State's argument. First, and definitively distinct from
the facts in Jenkins, McDaniel was not an attorney or a witness in the proceedings before
the court but instead a prospective juror in an excess pool of panelists. The failure of a
prospective juror to appear for jury duty is governed by K.S.A. 43-165, which states that
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each judicial district may make rules governing jury service and enforcement, but
"[u]nexcused, nonattendance of a person summoned unless reasonable cause for such
nonattendance be shown to the satisfaction of the court shall be punished by the
imposition of a fine not exceeding one hundred dollars ($100) for each day of unexcused
absence." As a matter of public policy, then, the legislature has provided a punitive
statutory alternative to criminal contempt proceedings when a person is summoned for
jury duty and the court ultimately finds that a failure to appear was without reasonable
cause. This is the exact breach of the law for which the court found McDaniel guilty, so
the district court could not impose other sanctions.
Moreover, and again definitely distinct from the facts in Jenkins, there is no
evidence that McDaniel's late arrival as a prospective juror in an excess pool of panelists
obstructed or tended to obstruct the administration of justice. Jenkins, 263 Kan. at 358. In
fact, Judge Magana stated that after he was informed by the jury clerk that McDaniel did
not appear at 8:45 a.m. on Tuesday, December 8, he "noted the information from the jury
clerk and proceeded with our jury selection after obtaining additional jury panelists from
the jury room to fill out our panel at that time." In other words, jury selection was able to
proceed without interruption to the court's proceedings.
For all of the reasons stated above, we find McDaniel's failure to appear the
morning of her second day of jury duty did not constitute a direct criminal contempt but
instead indirect criminal contempt, if contempt at all. As explained above, the accused is
entitled to greater constitutional procedural safeguards in proceedings for indirect
contempt because the judge has no personal knowledge of the misconduct. Those
safeguards are entrenched in accepted principles of constitutional due process and are
codified in K.S.A. 2016 Supp. 20-1204a(a). In Kansas, the court must file an order to
appear and show cause why a judgment of indirect contempt should not be entered. The
court must file an affidavit with this order that specifically sets forth the facts supporting
the allegation of indirect contempt. K.S.A. 2016 Supp. 20-1204a(a), (d). The accused
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must have a reasonable opportunity to meet the charges of indirect contempt by way of
defense or explanation, which includes the right to be represented by counsel, the right to
testify, and the right to call and cross-examine witnesses. In re Oliver, 333 U.S. at 274-
75.
Applied here, McDaniel was deprived, at a minimum, of the following rights: (1)
the right to be fully informed of the charges against her, including the nature and scope of
punishment she was facing if found guilty; (2) the right to confront the jury clerk, whose
statements were used against her; (3) the right to call witnesses on her behalf; (4) the
right to refrain from being a witness against herself; (5) the right to the protection of the
rules of evidence, for example by excluding inadmissible character evidence; and (6) the
right to have counsel to represent her at the contempt hearing and commutation of
sentence hearing.
Judge Magana erred in deeming McDaniel's morning absence from jury duty as
direct criminal contempt and by summarily punishing McDaniel, the result of which
deprived her of the procedural due process rights to which she was entitled in order to
defend against the charge of direct criminal contempt lodged against her.
Journal entry
Even if Judge Magana's decision to file a charge of direct criminal contempt
against McDaniel was proper, we necessarily find the conviction void based on Judge
Magana's failure to comply with the strict requirements set forth in K.S.A. 20-1203 in
journalizing the judgment of direct contempt:
"That a direct contempt may be punished summarily, without written accusation
against the person arraigned, but if the court or judge in chambers shall adjudge him
guilty thereof a judgment shall be entered of record, in which shall be specified the
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conduct constituting such contempt, with a statement of whatever defense or extenuation
the accused offered thereto, and the sentence of the court thereon."
K.S.A. 20-1203 is jurisdictional. Harsch v. Miller, 288 Kan. 280, 295, 200 P.3d
467 (2009). Whether jurisdiction exists is a question of law over which this court's review
is de novo. Williams, 28 Kan. App. 2d at 100. Direct contempt orders that do not specify
the conduct constituting the contempt or state the defense offered by the accused are
void. Harsch, 288 Kan. at 295; In re Gambrell, 160 Kan. 620, 623, 164 P.2d 122 (1945).
Here, the journal entry did not comply with K.S.A. 20-1203. The district court
stated:
"Pursuant to K.S.A. 20-1203, the court incorporates by reference herein the
extensive record made on this day which:
"1. specifies '. . . the conduct constituting such contempt. . . .'; and
"2. contains '. . . a statement of whatever defense or extenuation [CAJ] [sic] offered. . . .'"
The resolution of this issue requires this court to construe language of the statute.
Statutory interpretation involves a question of law over which appellate review is
unlimited. State v. McCurry, 279 Kan. 118, 121, 105 P.3d 1247 (2005). Ordinary words
are to be given their ordinary meanings and technical words their technical meaning.
When a statute is plain and unambiguous, an appellate court must give effect to the
legislature's intent as expressed rather than determining what the law should or should not
be. State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006).
There is no authoritative case directly addressing a journal entry that does not
include the statements of conduct and defense directly as required by the plain language
of the statute but rather incorporates a hearing transcript in full by reference. However,
direct contempt orders have been held to a strict standard and deemed void for either
failure to specify the conduct constituting contempt or failure to state any defense or
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extenuation offered by the accused. See, e.g., Williams, 28 Kan. App. 2d at 102 (journal
entry did not include statement of defenses Riggs relied upon and "[t]he fact that we have
access to a transcript of Riggs' sentencing hearing does not excuse the district court's
obligations under K.S.A. 20-1203"); State v. Flanagan, 19 Kan. App. 2d 528, 533, 873
P.2d 195 (1994) (perfunctory journal entry did not specify grounds or set forth any
defense offered).
First, the statute requires the district court to "specify" the conduct that constitutes
contempt and to make a "statement" of any defense offered. In the Webster New
Collegiate Dictionary, "specify" means "to name or state explicitly or in detail." Webster
New Collegiate Dictionary 1116 (1973). Additionally, the relevant definition of
"statement" is "a report of facts or opinions." Webster New Collegiate Dictionary 1136
(1973). A general reference to the hearing transcript without more does not meet statutory
direction to state explicitly or in detail the conduct constituting the offense or to report
the facts of the contemnor's defense. Moreover, the journal entry at issue states that CAJ
offered a statement of defenses at the hearing—there is no explanation regarding who
CAJ refers to, but it is not a reference to McDaniel (who was referred to as TLM in the
journal entry). Thus, even with this reference to the hearing transcript, the journal entry
does not purport to offer a statement of McDaniel's defense. The journal entry does not
meet the requirements as set out in K.S.A. 20-1203 and, therefore, is void.
McDaniel's contempt conviction is reversed and the district court is directed to
vacate that conviction. Reversed and remanded.
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