In re Terra L. McDaniel.
BY THE COURT
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.
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.
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.
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
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.
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.
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.
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 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.
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
from Sedgwick District Court; Christopher M. Magana, judge.
Reversed and remanded with directions.
W. Hoeme, of Joseph, Hollander & Craft LLC, of Wichita,
Kristafer R. Ailslieger, deputy solicitor general, and Derek
Schmidt, attorney general, for appellee.
Green, P.J., Standridge and Gardner, JJ.
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
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
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 jury clerk would speak with the
supervisor and get back to McDaniel, which apparently never
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.
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
"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,
"MS. MCDANIEL: Yes.
"THE COURT: And you are aware of what the proceeding is
"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.
"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
"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.
"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
"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 ...