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STATE v. JENKINS12/12/1997
in progress." 225 Kan. at 429.
We said:
" here direct criminal contempt occurs when the contemner is either a party or an attorney for a party in a criminal trial proceeding any disruptive, recalcitrant
and disagreeable act should be punished summarily to forestall additional contemptuous conduct." 225 Kan. at 433.
Different statutory procedures apply, depending on whether the contempt is direct or indirect. If Johnson's alleged conduct is treated as a direct contempt, then K.S.A. 20-1203 applies. K.S.A. 20-1203 provides for summary punishment, but requires that a written judgment be entered, specifying the contemptuous conduct, defense or extenuating circumstances, and the sentence imposed. Failure to comply with 20-1203 is jurisdictional. See In re Gambrell, 160 Kan. 620, 623, 164 P.2d 122 (1945), reh. denied 161 Kan. 4, 165 P.2d 760 (1946). The first order entered by Judge Buchele describes Johnson's conduct, the defenses he offered, and the fine imposed.
Direct contempt orders have been held void for either failure to specify the conduct constituting the contempt or to state any defense or extenuation offered by the accused. See, e.g., State v. Flanagan, 19 Kan. App. 2d 528, 533, 873 P.2d 195 (1994).
If we were to characterize Johnson's alleged conduct as an indirect contempt, then K.S.A. 1996 Supp. 20-1204a would apply. "The procedure for holding a party in indirect contempt . . . is set forth by statute and must be strictly construed against the movant." Cyr, 249 Kan. 94, Syl. 5. Under K.S.A. 1996 Supp. 20-1204a(a), a motion requesting an order to appear and show cause why the contemner should not be held in contempt, accompanied by an affidavit setting forth the facts constituting the alleged violation, must be filed. The sheriff must serve the order on the alleged contemner, along with a copy of the affidavit. The order must state the time and place of the hearing. K.S.A. 1996 Supp. 20-1204a(b). Johnson's contempt was not indirect.
K.S.A. 20-1205 provides for appeals of judgments of conviction of contempt and requires that "testimony taken on the trial of any accusation of contempt shall be preserved." See McPherson, 208 Kan. at 518 ("Under the provisions of K.S.A. 20-1205 the taking of testimony and the preservation thereof is mandatory and a requisite of jurisdiction."). The record contains the transcript of the verbal exchange between Judge Buchele and Johnson. We consider
this verbal exchange an instanter contempt hearing, which Johnson requested.
Civil vs. Criminal Contempt
The distinctions between civil and criminal contempt have been addressed by both Kansas appellate courts>.
"`Civil contempt is the failure to do something ordered by the court for the benefit or advantage of another party to the proceeding.' [Citation omitted.] Criminal contempt, by contrast, is `conduct directed against the dignity and authority of a court or a judge acting judicially, with punitive judgment to be imposed in vindication; its essence is that the conduct obstructs or tends to obstruct the administration of justice.' [Citation omitted.]" Krogen v. Collins, 21 Kan. App. 2d 723, 726, 907 P.2d 909 (1995).
Civil contempt is a remedial or corrective action meant to coerce a party into action. The party in contempt can be confined until the court-ordered action is performed. Goetz v. Goetz, 181 Kan. 128, 137, 309 P.2d 655 (1957); see State v. Davenport, 22 Kan. App. 2d 683, 920 P.2d 475, rev. denied 260 Kan. 933 (1996) (defendant held in civil contempt for refusing to testify under a plea agreement and ordered imprisoned until he agreed to testify).
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