Judge: Little Rock attorney learns, or city loses

Little Rock City Attorney Tom Carpenter stands in the hall outside Judge Tim Fox's courtroom following a hearing Monday about why a $10,000 sanction against the city of Little Rock was not paid on time.
Little Rock City Attorney Tom Carpenter stands in the hall outside Judge Tim Fox's courtroom following a hearing Monday about why a $10,000 sanction against the city of Little Rock was not paid on time.

Little Rock is in contempt of court because of its late payment of a $10,000 sanction and faces a default judgment against the city if City Attorney Tom Carpenter doesn't go to continuing-education classes, a judge ruled Friday.

Circuit Judge Tim Fox issued the ruling four days after holding a contempt hearing in which he questioned Little Rock City Manager Bruce Moore on why the city didn't pay the penalty before the deadline Fox had set in a prior order.

The city must send Carpenter to six hours of continuing legal education by January or be faced with a default judgment against it in the case of Tiffany Malone v. the City of Little Rock, in which a former police officer is alleging discrimination.

Reached by phone Friday, Carpenter said the city will appeal the sanction and finding of contempt "to a court of competent jurisdiction."

"In the way the judge wrote the order, I think he has bias because he seems to think that ... a woman who kicks a one-legged man down and pepper-sprays him while he's handcuffed is appropriate police conduct. The city terminated [Malone] for that.," Carpenter said. "So if [Fox] thinks there's some risk that the city is going to lose [the trial] on that fact, it really makes us wonder about where that [default] judgment [would] come from."

Fox has been admonishing the city in written orders and from the bench for weeks over the way former Assistant City Attorney Latonya Austin handled the defense in the Malone case.

Austin resigned from the city April 25, the day Fox issued the $10,000 sanction. She said she was given the choice to resign or be fired.

Fox wrote in his orders that Austin stated she had never previously handled any case involving the legal issues presented in the Malone lawsuit and that she had not "properly or professionally prepared the case for trial."

Austin admits that she did not issue discovery or take any dispositions for the case, blaming her failure to meet deadlines on unexpected medical problems. She had surgeries to remove a mass found during a mammogram in November and March. The Malone case was originally set to go to a three-day jury trial May 4.

The scheduling order signed by the city and Malone's attorney stated the deadlines for mediation, discovery, a pretrial hearing and the trial dates. The order states that failure to comply with the deadlines "may result in dismissal of claims; striking of affirmative defenses, or the prohibition of the introduction of certain testimony and/or exhibits."

"The court considered striking the defendant Little Rock's answer [to the lawsuit] or prohibiting it from calling any witnesses, for its gross violations of the Scheduling Order," Fox wrote in his order Friday. "The court also considered whether it should simply allow the trial to proceed as scheduled with the defendant Little Rock's attorney having admitted on the record that the defendants were unprepared for the trial of the case."

"The court also considered awarding fees and costs to the plaintiff under Rule 11 because of the defendant Little Rock's repetitive motions and failure to comply with the Scheduling Order. However, the plaintiff had also failed to initiate the ordered mediation within the time period set forth in the Scheduling Order. All parties were equally admonished at the pre-trial hearing for that specific violation," Fox wrote.

Ultimately, he decided to impose the $10,000 penalty and order it be paid within 10 days.

Carpenter filed a motion after the April 25 sanction order asking Fox to reconsider the penalty and postpone the payment deadline, citing the Rules of Civil Procedure and state law to back up his assertion that Fox hadn't properly followed law by issuing the penalty against Little Rock.

Fox didn't respond to those motions before the deadline to pay the sanction had passed. After the deadline, he denied Carpenter's motion without explanation and then issued a seven-day notice for Monday's contempt hearing.

Carpenter argues that both the $10,000 penalty and the contempt hearing required 14-day notice under law and that Fox didn't follow other guidelines, such as detailing how he came to the fine amount.

Fox explained how he decided the $10,000 amount for the first time in Friday's ruling.

Fox said Little Rock cost Pulaski County taxpayers money by "wasting three days of scheduled courtroom time." He decided Little Rock should pay between $3,000 to $5,000 per day, and ended up choosing the lower end of the spectrum.

Carpenter said in Friday's phone interview that he'd found it hard to believe that employees in Fox's court were paid to not work the three days the trial had been scheduled.

Fox also wrote in his order that Little Rock is the largest city in the state and that "whatever fine was levied needed to be sufficient to encourage the defendant to comply with future court orders."

Friday's order said Fox found the city's failure to pay the fine was intentional, that it was willful disobedience of the court's order, that the city committed contempt and that the city did so based on the legal advice of Carpenter.

"Such advice fell below professional standards of competence and was in direct violation of established case law," Fox wrote.

Carpenter disagrees. He said the case law Fox cited in his order concerns a situation in which an attorney told his client publicly in court to disobey a judge's order. Carpenter didn't do that.

Fox said Little Rock can "cure" it's contempt of court by requiring Carpenter to complete five hours of continuing legal education on case management or docketing and control and one hour on ethics.

Carpenter must do this before the new pretrial hearing scheduled in the Malone case, which is Jan. 13. A new trial date has been set for Feb. 15.

If Carpenter doesn't do so, Fox said, he will strike the city's response to the Malone complaint and issue a default judgment in Malone's favor, holding the city liable for the allegations she has made against it.

"The court is making a finding about me without any basis in fact for what's going on," Carpenter said. "The Arkansas Supreme Court -- not any circuit court -- is in control of the requirements for continuing legal education, which I meet and exceed every year."

Fox has a history of holding attorneys in contempt of court. In 2003, he held prominent Little Rock attorney Sam Perroni in criminal contempt and fined him $1,000. Perroni was double-booked in Fox's courtroom and for a jury trial in federal court.

Perroni appealed, but the Supreme Court upheld Fox's decision.

In 2006, another double- booking landed attorney Ronald Carey Nichols with a contempt charge from Fox. The judge ordered that Nichols pay $840 for missing trial, an amount that would pay for the potential jury pool that showed up that day.

The city has successfully appealed sanctions against it before.

In 2013, the Arkansas Court of Appeals overturned a sanction imposed on the city by Circuit Judge Wendell Griffin.

In that case, the city was accused of "unnecessary delay and harassing conduct" after it refused to sign a joint order informing the court that a hotel that had been closed for repair had come into compliance with all city codes.

The city admitted the property had come into compliance but told the court it didn't sign the joint petition to reopen the property filed by its owner because the city's attorney "had some trouble getting the authority to do so," according to the appeals court ruling.

Griffin ordered the city to pay about $2,400 to the plaintiff in the case. The state Court of Appeals overturned that ruling after a successful appeal by Carpenter, though the court said it disagreed with the "thrust" of Carpenter's argument.

A Section on 05/21/2016

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