The city of Little Rock has filed a notice of appeal of the $10,000 sanction and contempt-of-court citation issued against it by Pulaski County Circuit Judge Tim Fox.

The notice was a formality that comes before City Attorney Tom Carpenter will file an official appeal with the Arkansas Supreme Court that will include briefs detailing his legal argument.

Carpenter said by phone Wednesday that his argument will be the same as when he petitioned Fox to reconsider the sanction and argued against the judge holding the city in contempt.

"The appeal is about whether proper procedures and notice were provided. All the city has asked is that the court follow the rules. So, we are asking the Arkansas Supreme Court to determine whether the written rules should be followed, or whether they can be ignored," Carpenter said Wednesday.

Fox issued the $10,000 sanction on April 25 after approving a third motion for additional time for the city to prepare for trial in the case of Tiffany Malone v. City of Little Rock.

Malone, a former Little Rock police officer, is alleging gender discrimination and retaliation in her lawsuit against the city. The case was originally set to go to trial in May.

Fox expressed frustration that the trial had to be postponed, and said the city attorney handling the case -- LaTonya Austin -- wasn't prepared. Austin resigned the day of the fine under threats that she would be fired if she did not resign, she said.

Austin "made numerous statements on the record indicating she had not properly or professionally prepared the case for trial and that she had failed and refused to comply with the court's Scheduling Order," Fox wrote when issuing the fine.

Carpenter argued in court filings at the time that the city was prepared for trial and that the sanction was improper under Arkansas law.

He said the rule Fox cited when he issued the sanction -- Rule 11 of the Arkansas Rules of Civil Procedure -- is to punish an attorney, not a defendant. The city is the defendant in the case and was the entity Fox sanctioned.

In the event a judge does sanction a party to a lawsuit, certain procedures must be followed and Fox did not follow those guidelines, Carpenter said.

"The Arkansas Rules of Civil Procedure provide limited grounds for the entry of a sanction against a party represented by counsel, and both of these instances mandate notice and an opportunity to respond within 14 days of such notice," Carpenter wrote.

He also said the rule requires the court to issue a show cause order and give notice so that the party has an opportunity to respond to the charges levied against it, which Fox didn't do.

Carpenter added that Rule 11 "does not extend to failure to comply with a court's orders," which is what Fox alleged the city's attorney did by not following the scheduling order that set trial for early May.

After Carpenter filed his motion for Fox to reconsider the sanction, he subsequently filed a motion to stay the payment of the fine until Fox had ruled on the reconsideration request.

Fox's April 25 order told the city to pay the fine within 10 days. That deadline came and went without the city paying and without Fox responding to Carpenter's motions.

After the deadline had passed, Fox declined both motions without comment and ordered City Manager Bruce Moore to appear in a contempt hearing to explain why the fine wasn't paid on time.

At that hearing, a back-and-forth exchange with Carpenter and Fox ensued, with Fox interrupting Carpenter several times. A few days after the hearing, Fox issued a written order finding the city in contempt for failure to pay the fine on time.

"The defendant Little Rock's failure to pay the fine as ordered was based, in whole or in part, on advice of legal counsel from its city attorney," Fox wrote. "Such advice fell below professional standards of competence and was in direct violation of established case law. The Arkansas Supreme Court has previously held that acting on advice of counsel is not a defense to a charge of contempt of court but that such reliance does lessen the seriousness of the offense."

The city had already paid the fine before the contempt hearing and argued that the hearing was moot and had asked Fox to cancel it, but Fox didn't.

"This is a civil contempt; the city did not willfully disobey the order of the court, but instead pointed out that the order was not entered in accordance with Arkansas law and sought appropriate relief," Carpenter wrote in his request. "Civil contempt can be cured by the alleged contemnor by performing the necessary action, i.e., the payment of the sanction."

"... the Arkansas Supreme Court has clearly stated that a finding of criminal contempt for the failure to pay Rule 11 sanctions constitutes 'a plain, manifest, and gross abuse of discretion' that cannot be upheld. Ivy v. Keith, 351 Ark. at 285," Carpenter cited.

Fox said in order for the city to cancel out its contempt, Carpenter must go to six hours of continuing legal education on case management and ethics by January or be faced with a default judgment against the city in the Malone case.

Carpenter said at the time that Fox's finding wasn't based on fact.

"The Arkansas Supreme Court -- not any circuit court -- in control of the requirements for continuing legal education, which I meet and exceed every year," he said.

A Section on 06/09/2016