Judge: Little Rock attorney learns, or city loses

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 hearing in which he questioned Little Rock City Manager Bruce Moore on why the city didn’t pay the penalty before the deadline Fox set.

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.

Carpenter said Friday 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 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 Austin stated she never previously handled any case involving the legal issues presented in the Malone lawsuit and she hadn’t “properly or professionally prepared the case for trial.”

Austin admit she didn’t issue discovery or take any dispositions, 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 or - der signed by the city and Malone’s attorney stated the deadlines for mediation, discovery, a pretrial hearing and the trial dates. The order states 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 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 both the $10,000 penalty and the contempt hearing required 14-day notice under law and 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 Frida he’d found it hard to believe employees in Fox’s court were paid to not work the three days the trial had been scheduled.

Fox also wrote in his order Little Rock is the largest city in the state and “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 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’ll 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.

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