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IN THE SUPREME COURT OF THE STATE OF KANSAS No. 101,472 S.M., Petitioner, v. JOSEPH D. JOHNSON, SHAWNEE COUNTY DISTRICT JUDGE,
AND STATE OF KANSAS,

Respondents.

SYLLABUS BY THE COURT 1. To detain a juvenile in a juvenile detention facility for more than 48 hours, exclusive of Saturdays, Sundays, and legal holidays, for a violation of a condition of preadjudication supervision, the court must conduct a detention hearing pursuant to K.S.A. 2008 Supp. 38-2343, and must make an initial finding, based on substantial and competent evidence, that the juvenile is dangerous to self or others or that the juvenile is not likely to appear for further proceedings.

2.

Any waiver of a detention hearing must be in writing, signed by the juvenile and the juvenile's attorney, and must be approved by the court.

3.

Whenever a district court orders that a juvenile is to be detained in a juvenile detention facility, the court must make a record of the specific findings of fact upon which the order is based.

Original action in mandamus. Opinion filed December 24, 2009. Petition for writ of mandamus granted in part.

Marc A. Schultz, of Topeka, argued the cause and was on the brief for the petitioner.

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Natalie A. Chalmers, assistant district attorney, argued the cause, and Chadwick J. Taylor, district attorney, and Steve Phillips, assistant attorney general, were with her on the brief for the respondents.

The opinion of the court was delivered by

JOHNSON, J.: S.M. originally presented this matter to the court as a petition for writ of mandamus, requesting an order releasing her from juvenile detention. In addition, the petition sought an order directing the Honorable Joseph D. Johnson to follow the contempt procedure mandated by K.S.A. 20-1201 et seq., as a condition precedent to enforcing the judge's "school rule," whereby a juvenile is ordered to serve 5 days in detention for each unexcused absence from school. Petitioner's request for release from detention is now moot. However, the district court is directed to conform the implementation of any school attendance rule with the provisions of K.S.A. 2008 Supp. 38-2343, including the procedural requirements governing notice and hearing and the mandates governing the requisite findings for detaining a juvenile in a juvenile detention facility.

FACTUAL AND PROCEDURAL OVERVIEW S.M., a juvenile, was charged with multiple violations in two juvenile offender cases in the Shawnee County District Court; Judge Johnson presides over such cases. Following her first appearance on November 4, 2008, Judge Johnson released S.M. on pretrial supervision, which included an order to attend school with no unexcused absences or tardies as a condition of that release. S.M. subsequently pled nolo contendere to certain counts in return for the dismissal of the remaining counts in the two cases.

At the sentencing hearing, the court services officer (CSO) told Judge Johnson that S.M. had violated the school rule by accumulating three unexcused absences. In addition to sentencing S.M. on the pleas, Judge Johnson entered an order which stated: "[S.M.] must report to the Juvenile Detention Center on 11/25/2008 for school violation on pretrial supervision (15 days)." The detention was to be served during breaks, when school was not in session. 2

On November 26, 2008, S.M. filed this original mandamus action requesting her release from detention and seeking an order directing that Judge Johnson follow the contempt procedure set forth in K.S.A. 20-1201 et seq. S.M. argued that detaining her without a hearing violated her right to due process. The petition was subsequently amended to substitute the State of Kansas as a respondent, in lieu of the district attorney.

Pursuant to Supreme Court Rule 9.01(c) (2009 Kan. Ct. R. Annot. 73), this court directed each of the respondents to file an answer to the petition. After additional orders from this court directing a response, Judge Johnson filed an answer asserting that the matter was moot because S.M. was no longer detained. Alternatively, the judge argued that his actions were authorized by K.S.A. 2008 Supp. 38-2361(f)(2), which provides for a sanctions house placement for a verifiable probation violation.

Subsequently, this court issued an order which acknowledged that the request for release from detention was then moot, but finding that the question of whether Judge Johnson had complied with due process in implementing the school rule was unresolved and capable of repetition. Consequently, this court requested that the parties submit additional briefing which specifically addressed the following questions:

"1. For what purpose and upon what authority was the juvenile ordered taken into custody and detained in the Juvenile Detention Center, e.g. as part of the original sentence upon adjudication; or as a sanction for probation violation; or as a sanction for violating the conditions of release prior to adjudication; or for some other purpose? "2. What statutory procedures are mandated as a condition precedent to detaining the juvenile for the purpose identified in the first question? "3. What process is constitutionally due the juvenile prior to ordering the detention for the identified purpose? "4. What statutory procedures are mandated during the term of the Detention? See e.g. K.S.A. 38-2361(f)(1) (seven day review) and K.S.A. 38-2361(f)(2) (hearing within 48 hours)."

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JURISDICTION AND STANDARD OF REVIEW This court possesses jurisdiction for mandamus proceedings under Kan. Const. art. 3,

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