As Little Rock lofts objections, judge knocks all down

Circuit Judge Tim Fox overruled all of Little Rock City Attorney Tom Carpenter's objections and occasionally cut him off during a hearing Monday to decide whether to hold the city in contempt of court after its failure to pay a $10,000 penalty on time.

Carpenter objected at least nine times to the judge's questioning of City Manager Bruce Moore in the 25-minute session. At times, Fox smiled as he interrupted Carpenter -- once denying an objection before Carpenter had even made it.

The judge hadn't decided whether to hold the city in contempt of court by the close of business Monday.

He issued the $10,000 penalty against the city April 25. In that order, Fox described his frustration with Latonya Austin, the city attorney handling defense in the case of a former police officer suing over alleged discrimination.

Fox said Austin admitted to not being prepared for trial and didn't follow his scheduling order. Fox then ordered the penalty paid within 10 days, which would have been by May 5. The city didn't pay until a week later.

Austin resigned the day of the order under threats of being fired, she said in an interview Monday. She disagreed with Fox's conclusions on her preparedness and explained she had unexpected surgeries that resulted in her asking for continuances in some of her cases.

Carpenter acknowledges the office's staff is overworked. However, he said Fox is the first judge to question the quality of the office's work.

CONTEMPT OF COURT

In the current case before Fox -- Malone vs. the City of Little Rock -- Carpenter had filed motions asking Fox to reconsider the penalty and to postpone the deadline to pay until he had reconsidered, citing several statutes as to why the city believed the fine to be excessive and improper under state law.

The deadline to pay the $10,000 came and went without Fox answering Carpenter's request and without the city submitting payment. On May 9, Fox set Monday's hearing for Moore to explain why the city hadn't paid and why Fox shouldn't hold the city in contempt of court.

Moore authorized payment Thursday, and Carpenter asked that day that Monday's hearing be canceled. Fox never responded to the motion, and the 10:15 a.m. hearing proceeded.

"Can you tell me why Little Rock didn't issue a check within 10 days?" Fox asked Moore on the stand.

"Under the advice of counsel," Moore said.

"So, Mr. Moore, you're telling me that your legal counsel directed you not to comply with the order?"

Moore said no, rather Carpenter alerted him there would be an appeal, and so Moore held off on payment.

Later in the hearing Fox questioned that logic, comparing it to code violation cases. At times, a city will ask a court to approve an emergency closure of an apartment complex because of safety hazards. Fox asked Moore if it would be OK for the complex owner to ignore the judge's ruling in that instance because the owner planned to object in court filings.

Carpenter objected to the question, saying Moore wasn't qualified to give a legal opinion. He also objected to Fox asking questions about the complaint and scheduling orders in the Malone case.

"We are here on a sanction issue. We had no notice of anything else. Therefore, we object," Carpenter said.

Fox continued to overrule and ignore Carpenter's objections. At one point, the judge brought up another case in which Austin represented the city and which wasn't able to go on appeal before the state Supreme Court because of what the court said was a deadline not being met. The city has called that case unusual and disagrees with the Supreme Court's finding.

"Objection," Carpenter stood up and said: "Cause for information outside scope of court's motives. We are not prepared to address those today."

Fox continued anyway, and a minute later Carpenter stood up again: "Objection, your honor. We are here today on a sanction ..."

Fox cut Carpenter off. "You may sit down. I'm going through what's relevant."

Carpenter told the judge he planned to object to everything he felt was improper because the city will appeal this sanction to the Supreme Court.

Later, Fox asked Moore, "Is it OK with you that the plaintiff was deprived of her day in court because the city of Little Rock was not prepared that day?"

Before Moore could respond, Carpenter said there is no evidence that the city wasn't prepared for trial.

Fox alleged the city didn't present a list of witnesses on time and said "there was a really good chance on that day the city was not going to have any witnesses."

Carpenter attempted to object, but before he could Fox said, "I overrule your objection. You may be seated."

"Obviously more time was spent since you all weren't ready for trial than was ever spent on this case getting ready for trial as you should have," Fox said.

"No, your honor," Carpenter interjected. Fox smiled and said, "Well, it's pretty apparent from the pleadings."

A few minutes of back-and-forth between the two passed before Fox ended the hearing without ruling on the issue of contempt. He hadn't submitted an order in the online court filing system by the end of business hours Monday.

In an interview after the hearing, Carpenter said Fox isn't following due process, is acting contrary to law and confirmed his plans to appeal the $10,000 fine once Fox issues a ruling on the contempt of court hearing.

"[Fox] didn't ask about the sanction. The question of sanction is, is it paid? Once it's paid, there's no contempt. The law is quite clear on that," Carpenter said.

LATONYA AUSTIN

Austin sat in the audience for Monday's hearing and talked to the Arkansas Democrat-Gazette afterward. She said the list of witnesses for the Malone case was sent to the court's trial clerk the same day and in the same email chain as the plaintiff's list of witnesses.

She had asked for a continuance in the case three times, the most recent being a week before trial. The first two requests were denied, and the last was granted. The first requests were because of a sudden medical situation, Austin said.

She learned in August after a mammogram that she had a mass that needed to be removed. She had surgery in November, but it didn't go as planned and had to have a second surgery in March. Despite that surgery, Fox had denied her request for a continuance at that time. Trial in the Malone case was set for May.

In addition to surgeries, an concern regarding the number of witnesses the plaintiff's counsel indicated might be called prompted the last continuance request, Austin said.

"The plaintiff's witness list included a general statement about any and all individuals identified in four different cases, two of which I was not the attorney on. That would include more preparation than would have been reasonably expected. Mind you, this case alone was going to be about 25 witnesses," Austin said.

Malone's attorney, Lucien Gillham, declined to comment after Monday's hearing.

Austin said she didn't understand why Fox publicly chastised the city for not attending mediation in the Malone case on time, when the plaintiff's counsel also didn't attend on time. Mediation eventually occurred between the two parties, but not by the date on the scheduling order.

"There's been no discipline or public scolding for them. No petty comments from the bench -- nothing," Austin said.

She maintains she did nothing improper in the Malone case or in the other case Fox brought up Monday in which the Supreme Court turned down a request to hear the city's appeal because of a trial transcript not being fully paid for.

She only resigned after Fox's penalty because she was given the option to do that or be fired, she said. Her salary was $77,154.

While Carpenter maintained before the judge that Austin would have been prepared for trial, he wrote in a memorandum to the Little Rock Board of Directors on the day the fine was issued that "this should have never happened. From the personnel standpoint, the situation is being addressed already."

In Fox's order of the $10,000 fine, he said the city attorney's office should have put more than one attorney on the Malone case, which he called "complex." After Austin resigned, two city attorneys were added to the case.

This isn't the first time court filings have indicated that Little Rock's attorneys might be overworked.

OTHER CASES

In a case filed in federal court against the city in March of 2014, Assistant City Attorney Clifford Sward didn't respond to the complaint on time, resulting in a default judgment against the city.

In a motion to set aside the judgment, which was ultimately granted, Sward wrote that he "maintains a very heavy litigation schedule, and through simple oversight, incorrectly calculated the response time."

In another federal case in which Austin was representing the city, she wrote in an April 20 email to the plaintiff's attorney that she was "completely overwhelmed at the current moment." The plaintiff's attorney in that case had filed a significant amount of paperwork to be reviewed.

Several of Austin's cases have been reassigned to Deputy City Attorney Alexander Betton, whose first day on the job was March 14.

"I think we've been overworked for some time," Carpenter said by phone Monday when questioned about the instances.

"I'm [in the office] almost every weekend. [Deputy City Attorney] Bill Mann is down here almost every weekend. ... I just think there's an incredible amount of work for this office to do and we do it as best we can."

When questioned about management of the city attorney's office, Austin said she wasn't qualified to comment.

"I will say that the city attorney's office was very busy. There are public records that indicate that all of the attorneys in the litigation department were busy and were not just twiddling their thumbs. We worked hard, and we diligently attempted to handle each case with as much professionalism and preparation as we could and as we knew how," Austin said.

"I can't comment on the management because, to me, that gets into budgetary issues and whether or not there was money allocated for more attorneys."

There are 12 attorneys working in the city attorney's office, according to Moore. A request to add an attorney to focus on lien foreclosures was added to the budget in 2014 and there have not been any additional requests to add positions, Moore said.

Information for this article was contributed by Linda Satter of the Arkansas Democrat-Gazette.

A Section on 05/17/2016