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STATE v. JENKINS12/12/1997
, 1996, and reflected that Judge Buchele had verified: (1) on July 1, 1996, Johnson had requested the date and time for the conflicting hearing before Judge Parrish; (2) Johnson did not advise Judge Parrish of the conflict; (3) the hearing before Judge Parrish at 10:30 a.m. lasted only 15 to 20 minutes; (4) by 11 a.m., Johnson had been told that everyone was waiting on him for the preliminary hearing; and (5) after being told that the preliminary hearing would begin at 1:30 p.m., Johnson left Topeka shortly before noon to attend a meeting in Lawrence. He did not tell anyone connected with Jenkins' case that he would be late for the rescheduled 1:30 p.m. preliminary hearing.
Johnson moved for a due process hearing or, alternatively, that the sanctions be set aside as invalid. Judge Buchele denied the motion. The order noted that Johnson had requested a hearing
instanter, which he received, and that he had waived any further due process rights at the district court level.
DISCUSSION
In addressing Johnson's claims that the district court orders violated his K.S.A. 20-1201 et seq. statutory and constitutional due process rights, we will reference: (a) the nature of this proceeding (including standard of review); (b) applicable statutory requirements; (c) civil or criminal contempt; (d) due process requirements; (e) direct or indirect contempt; (f) jurisdiction; (g) waiver of statutory or due process requirements; (h) recusal; (i) sufficiency of the evidence; (j) propriety of the attorney fees assessment; and (k) abuse of discretion.
Nature of the Proceeding
Johnson argues that this matter should be analyzed as a contempt of court proceeding. We agree. He contends that "the sanction involved here was not possible under the provisions of K.S.A. 20-1201 et seq. We disagree. Neither the district court's order imposing sanctions (first order) nor the follow-up order denying Johnson's motion to set aside sanctions (second order) contains any express finding that Johnson was in contempt of court. However, those orders fined Johnson for his tardiness, his earlier failure to appear at the originally scheduled time, and his failure to advise the court of his whereabouts or of his conflicting hearing in another case. The district court's second order said in part: "The sanctions imposed were not made pursuant to K.S.A. 20-1201, but were based upon the inherent power of the Court to uphold the integrity of the Court['s] scheduling order and the judicial process." (Emphasis added). Therein lies the crux of our issue. Initially, we must decide how to treat the district court's rejection of K.S.A. 20-1201 et seq. in processing Johnson's actions.
Despite the characterization of its order, a district judge's description of his or her own action does not control the classification of the action. State v. Whorton, 225 Kan. 251, 254, 589 P.2d 610 (1979). Judge Buchele sanctioned Johnson for behavior the judge believed to be "disruptive and disrespectful to the Court and disrespectful to everyone else involved," constituting an "intentional,
arrogant, and flagrant disregard of the Court's schedule." The absence of the word "contempt" from the order does not change the nature of the action, if the facts call for contempt.
Codification of contempt of court procedures occurred early in this state's history. Johnson v. Johnson, 11 Kan. App. 2d 317, 319, 721 P.2d 290 (1986); see, e.g., L. 1897, ch. 106, § 1, now K.S.A. 20-1201. We have acknowledged the codification in resolving earlier cases. See State v. McPherson, 208 Kan. 511, 517, 493 P.2d 228 (1972) ("Under the provisions of K.S.A. 20-1201 all classes of contempts
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