Friday, March 02, 2012

Criminal contempt sentence vacated

Roger Batt won in In re J.T.R., No. 105,505 (Kan. App. Feb. 24, 2012), vacating a jail term imposed as a sanction against a mother who violated a no-contact order in a Sedgwick County child-in-need-of-care action.  The case presents a nice primer on the difference between criminal and civil contempt and the rights that attach to each:
Our statute, K.S.A. 20-1202, sets out two major classes of contempt, direct or indirect contempt. Direct contempt is committed during the sitting of the court or before a judge at chambers. All other contempts are indirect. K.S.A. 20-1202(2). Clearly, in this case, we deal with indirect contempt, as V.R.'s conduct did not occur in the presence of the judge.
Next, it is important to note two additional categories of contempt. They are denominated as civil and criminal contempt. They are distinguished by the intent of the penalty imposed and not necessarily the nature of the underlying legal or equitable action that the court is dealing with. In other words, a civil contempt proceeding may arise in a criminal case and a criminal contempt proceeding may arise in a civil case. Two questions are useful in making the distinction. Is the court seeking the enforcement of its orders? Is the court seeking to punish someone for disrespect or disobedience? If the former is true, then the answer is usually civil contempt; if it is the latter, then the contempt action is criminal.
The COA held that the contempt proceeding in this case started as a civil contempt proceeding, the but sanction imposed--a five day jail sentence--was not proper for such a contempt finding:
A punitive jail sentence as punishment for violation of the district court's order is available only for criminal contempt, not for indirect civil contempt. The 5-day jail sentence imposed here did not permit V.R. to purge her contempt. Nor did it, in any fashion, allow her to lessen her sentence through her conduct and unlock the door of the county jail.
The state apparently tried to argue on appeal that the contempt was criminal and therefore the jail sentence appropriate. The COA held that, if it was criminal, mother's Due Process rights were violated:
We acknowledge that a district court has the authority to find someone in indirect contempt of court and assess a criminal penalty. This is called indirect criminal contempt. But procedural safeguards must be observed. Even if we were to hold there was sufficient notice to V.R., the trial of V.R. was defective because the court forced V.R. to testify against herself.
Finally, the COA outlined the rights attaching to a criminal contempt proceeding:
Sentences for civil contempt must give contemnors a way through their conduct by which they can secure their release from jail. On the other hand, if the court simply wants to punish a contemnor, then the due process rights that attend any criminal charge should apply. These rights include: 
  • notice of charge and possible penalty; 
  • court-appointed counsel if indigent; 
  • right to trial; 
  • privilege against self-incrimination; 
  • right to confront witnesses and to compel testimony.
Because the COA concluded the proceeding was for indirect civil contempt, it vacated the jail sentence.
[Update: the state did not file a PR and the mandate issued on March 29, 2012.]

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