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STATE v. JENKINS12/12/1997
er, 333 U.S. 257, 273, 92 L.Ed. 682, 68 S.Ct. 499 (1948), Oliver was jailed for contempt of court in a secret proceeding on a charge of giving false and evasive testimony before a one judge-grand jury. The issue was whether an accused can be tried and convicted of contempt in secret. Oliver filed a habeas corpus action, and it was held such summary commitment constituted a denial of due process. In Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 444, 55 L.Ed. 797, 31 S.Ct. 492 (1911), Gompers was held in contempt and imprisoned in jail for 12 months for publicizing the union's side of a labor dispute in violation of a preliminary injunction; the judgment was reversed. Johnson argues that under Oliver and Gompers, he was denied due process because Judge Buchele subjected him to a summary proceeding without any advance notice. Neither Oliver, a star chamber case, nor Gompers, involving indirect contempt, are factually similar to Johnson's situation.
Johnson also complains that he was punished after the judge conducted an ex parte investigation. He reasons that had he been afforded the proper due process he could have: (1) been adequately prepared to show the circumstances surrounding his absence and tardiness; (2) had the opportunity to confront the evidence gathered in Judge Buchele's ex parte investigation; (3) exercised his right against self-incrimination; (4) exercised his right to counsel; (5) presented oral or written argument; and (6) been adjudged under the "beyond a reasonable doubt" standard of proof.
Johnson's due process contentions are analyzed against the factual background as reflected in the record. Judge Buchele was already aware that at 2 p.m. on July 1, 1996, Johnson had scheduled the conflicting hearing before Judge Parrish. Judge Buchele also knew that Johnson had not told the assignment judge (Judge Marla Luckert) about the conflicting hearing. Judge Buchele confronted Johnson at the contempt hearing with the results of his investigation.
Johnson was given the opportunity, which he took, to respond to the results of that investigation. He insisted on and was given the opportunity to explain and offer any extenuating circumstances. See Arthur, 62 Cal. 2d at 409:
"Where counsel fails to appear, however, the offensive conduct, to wit, the absence, occurs in the presence of the court. Thus, when an absent attorney reappears in the courtroom, due process should be satisfied if the judge confronts him with the charge and offers him a reasonable opportunity to explain."
Johnson was not denied due process.
Direct vs. Indirect Contempt
In Anders, 64 Kan. at 746, we held that a witness' failure to appear at trial under a subpoena was in the nature of an indirect contempt, in that the disobedience to attend was not committed in the presence of the court. Johnson argues that his alleged conduct should be characterized as an indirect contempt, in that his absence and tardiness did not occur in the court's presence. Johnson also asserts that there was no need for immediate punishment or a summary disposition.
Jurisdictions are divided as to the classification label to place on an attorney's absence or tardiness. Three contempt classifications have evolved — indirect, direct, and hybrid. The majority position seems to support indirect contempt. See, e.g., In re Davis, 77 Ohio App.3d 257, 265-67, 602 N.E.2d 270 (1991).
The following authorities favor either direct or hybrid classifications:
Direct Contempt: See, e.g., In re Contempt of Potter, 207 Neb. 769, 775, 301 N.W.2d 560 (1981) ("Where the attorney, although notified by the court to appear at a specific time, fai
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