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STATE v. JENKINS12/12/1997
ic defender.
Johnson reasons that the sanction is an unauthorized order to pay attorney fees. He points to the American Rule (attorney fees are not recoverable absent statutory authority) followed in Kansas. See Leslie, Recovery of Attorney Fees — An Historical Perspective, 53 J.K.B.A. 154 (1984).
The State contends that the district court has the authority to assess attorney fees under the "bad faith" exception to the American Rule. Johnson counters that the bad faith exception only applies to federal courts>. The State reasons that the bad faith exception also applies to state courts>, but he does not cite any supporting Kansas authority. The State relies on Barten v. Turkey Creek Watershed Joint District No. 32, 200 Kan. 489, 438 P.2d 732 (1968). However, Barten involved an award of attorney fees authorized by K.S.A. 60-802(c) as damages in a mandamus proceeding. The other Kansas cases cited by the State also involved mandamus actions.
We have held that, in the context of a violation of a restraining order or injunction, the court's authority to punish for contempt encompasses attorney fees. See, e.g., Edmiston, 242 Kan. 13; UARCO, Inc. v. Osborne, 224 Kan. 163, 578 P.2d 266 (1978); and State, ex rel., v. Bissing, 210 Kan. 389, 502 P.2d 630 (1972). In Bissing, we cited what is now K.S.A. 22-3904(4), which provides for the inclusion of attorney fees in judgments entered in statutory nuisance abatement proceedings. We held that 22-3904(4) also applied to the contempt proceeding.
Here, the situation is atypical; the aggrieved party did not request an award of attorney fees. The district court assessed the fees sua sponte as part of the punishment. We hold the power to impose attorney fees in the sanction for direct contempt is included under the district court's general punishment powers as described in K.S.A. 20-1203 ("a direct contempt may be punished summarily"). However, the contemner must be informed that any sanction may include attorney fees. Our conclusion is predicated on the idea that Johnson is entitled to fair warning. Judge Buchele did not inform
Johnson at the time Johnson demanded the hearing instanter that attorney fees could be part of the fine.
Abuse of Discretion
The record does not show that Johnson had been previously warned or sanctioned for similar conduct. However, Johnson's conduct supports a fine. The size of the fine was related to the contemptuous conduct (based on the hourly rate of the persons inconvenienced by Johnson).
We sever the $200 for attorney fees from the sanction, in view of Johnson's lack of notice that the fine could include attorney fees. We find no abuse of discretion and affirm the district court in all other respects.
Affirmed as modified.
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