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In re McDaniel

Court of Appeals of Kansas

June 9, 2017

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.

         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 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. 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.

         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 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.
"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.
"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 ...

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