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STATE v. JENKINS12/12/1997
The opinion of the court was delivered by
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 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
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.
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.
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
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