Valley v. Pulaski County Circuit Court, Third Division , 2014 Ark. LEXIS 166 ( 2014 )

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SUPREME COURT OF ARKANSAS
No. CV-13-450
JAMES FITZGERALD VALLEY Opinion Delivered March 13, 2014
APPELLANT
APPEAL FROM THE PULASKI
V. COUNTY CIRCUIT COURT,
THIRD DIVISION
[NO. 60CV-12-5140]
PULASKI COUNTY CIRCUIT
COURT, THIRD DIVISION HONORABLE JAY MOODY, JUDGE
APPELLEE
AFFIRMED.
CLIFF HOOFMAN, Associate Justice
Appellant appeals from the Pulaski County Circuit Court’s January 24, 2013 order
finding him in criminal contempt and issuing a $250 fine for failing to appear and answer a
valid legislative subpoena. The Arkansas Court of Appeals certified this case to us, stating that
it involves issues of first impression and of substantial public interest; issues needing
clarification or development of the law; and substantial questions of law concerning the
validity, construction, or interpretation of an act of the General Assembly. Therefore,
jurisdiction is properly in this court pursuant to Arkansas Supreme Court Rule 1-2(b) and (d)
(2013). On appeal, appellant contends that (1) the circuit court erred in denying his motion
to dismiss for lack of service pursuant to Ark. R. Civ. P. 4 (2012); (2) the circuit court erred
in ruling that the subpoena issued by the legislative audit committee was a valid subpoena; and
(3) the circuit court erred in finding appellant in criminal contempt. We affirm.
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This case arose after appellant had failed to appear and testify during a meeting of the
Legislative Joint Auditing Committee’s Standing Committee on Counties and Municipalities
after he had been subpoenaed to do so by the Legislative Auditor, Mr. Roger A. Norman.
The subpoena specifically stated that appellant would be compensated as a witness after his
appearance and included an authorization form to complete and return for reimbursement
pursuant to Ark. Code Ann. § 10-4-421 (Repl. 2012). The subpoena also specifically quoted
Ark. Code Ann. § 10-4-421(d)(1), which provides,
If any person subpoenaed to appear by the Legislative Auditor fails to appear or to
produce books, documents, or records subpoenaed, the fact shall be certified to the
circuit court of the county in which the hearing is held, and the circuit court shall
punish the person for contempt in the same manner as punishment for contempt is
imposed for failure to respond to a subpoena or directive of the circuit court.
After appellant had failed to appear as subpoenaed, Mr. Norman filed a petition for
adjudication of contempt in the Pulaski County Circuit Court. In the petition, Ark. Code
Ann. § 10-4-421(d)(1) and Ark. Code Ann. § 16-10-108(a)(3) (Repl. 2010) were cited and
quoted as the statutory bases for further proceedings. Additionally, Mr. Norman, through
counsel, requested the circuit court to determine that a prima facie showing of criminal
contempt had been shown, to issue an order to show cause, to direct the service of the order
to show cause with the petition to appellant, to find appellant guilty of criminal contempt
after a hearing, and to punish appellant pursuant to Ark. Code Ann. § 16-10-108. On
November 2, 2012, the circuit court issued an order to appear and show cause, citing Ark.
Code Ann. §§ 10-4-421(d)(1) and 16-10-108(c), and ordered Mr. Norman to serve the order
on appellant by any means provided for under Ark. R. Civ. P. 4. An affidavit that appellant
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was served by process server with the order to appear and show cause, the petition for
adjudication of contempt, exhibit A, and the subpoena were filed on November 28, 2012.
On December 5, 2012, a hearing was held with Mr. Larry Jegley, the Pulaski County
Prosecuting Attorney, and Mr. D. Franklin Arey, III, counsel on behalf of Mr. Norman,
present. At the hearing, there was a brief discussion as to whether the proceedings against
appellant were for civil or criminal contempt. Mr. Arey contended that the proceedings
needed to continue as a matter of criminal contempt, and Mr. Jegley requested that he be
appointed to proceed on behalf of the State in the case. Subsequently, an order was filed on
January 3, 2013, appointing Mr. Jegley to represent the State of Arkansas in these proceedings
and relieving Mr. Arey of any further responsibilities in this matter.
Appellant filed a motion to dismiss on December 10, 2012, alleging that the case
should have been dismissed against him as he was never served a summons in compliance with
Ark. R. Civ. P. 4. On January 8, 2013, the circuit court held a pretrial hearing on the
motion to dismiss. It was undisputed that a summons was never served. However, the State
argued that the criminal contempt-statute did not require a summons but only required that
appellant have notice of the accusations, and the circuit court denied the motion to dismiss.
A trial was held immediately after the court denied the motion to dismiss. Mr.
Norman testified that a state trooper had served appellant with a subpoena to attend a
legislative committee meeting on October 11, 2012, at 1:30 in the State Capitol. He further
testified, without objection, that Mr. Arey, legal counsel, had received a voicemail from
appellant on the afternoon of October 10, 2012, informing him that appellant would not
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appear at the meeting. On cross-examination, Mr. Norman testified that a witness-fee check
had not been submitted with the subpoena and that there is no mechanism or person at the
legislative audit division to hear motions to quash subpoenas.
After the State presented its evidence, appellant moved to dismiss the petition, alleging
that there was no testimony of willful disobedience of a court order and that appellant should
not be held in contempt of an invalid subpoena, since it was not accompanied by a witness
fee pursuant to Ark. R. Civ. P. 45(d) (2012). After the State argued that Ark. R. Civ. P. 45
was inapplicable, the circuit court denied appellant’s motion to dismiss.
Appellant testified that he appeared on behalf of his clients in Phillips County District
Court on October 11, 2012, and did not finish until 12:30 that afternoon. He further testified
that he had not received a witness fee with the subpoena. He spoke with Mr. Arey after
receiving the subpoena but did not inform him that he had a conflict. Instead, appellant left
Mr. Arey a voicemail on October 10, 2012, that he was not going to appear, despite the fact
that he knew that he was scheduled to be in court prior to that day.
On rebuttal, Mr. Arey testified that the legislative audit division does not send witness
fee checks with the subpoenas. Rather, the division sends a form with the subpoena to
inform a person that they will be compensated after they appear and testify. At the conclusion
of the rebuttal testimony, the State rested its case, and appellant’s counsel responded to the
court’s inquiry that he had nothing further. The circuit court announced that it would take
the case under advisement and explained that it would wait to make its ruling until after
appellant had an opportunity to present any case law for its consideration.
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Both the State and appellant filed posthearing briefs, and appellant’s brief requested that
the circuit court dismiss his case because the subpoena failed to comply with Ark. R. Civ. P.
45. However, the circuit court filed an order on January 24, 2013, finding that the subpoena
was valid. The circuit court held that Ark. Code Ann. § 10-4-421 did not require
compliance with Rule 45. Furthermore, the circuit court made the following findings of fact
in holding appellant guilty of criminal contempt:
The undisputed testimony at trial established that Mr. Valley had two
communications with Frank Arey, counsel for the audit committee, following his
receipt of the subpoena. These were the only communications Valley had with the
Committee. The first was shortly after receipt of the subpoena to inquire as to the
nature of the hearing. The second communication was made the day before the
hearing and consisted of Mr. Valley leaving a voice message that he did not plan to
attend the hearing the following day. Mr. Valley testified at the hearing that the
reason he did not appear was because he had other court business in Helena. The
Court finds that Mr. Valley’s reasons for failing to answer the subpoena do not amount
to good cause. The Court further finds that Mr. Valley is guilty of criminal contempt
for failing to appear and answer a valid legislative subpoena. Mr. Valley is fined $250
for his contempt of the Arkansas General Assembly.
This appeal followed. In addition to the parties filing their briefs on appeal, the
Arkansas Court of Appeals also granted the Arkansas Legislative Council, President Pro
Tempore of the Senate, and the Speaker of the House of Representatives’ motion to file an
amicus curiae brief in support of the appellee on November 13, 2013.
Appellant contends in his first point on appeal that the circuit court erred in denying
his motion to dismiss for lack of service pursuant to Ark. R. Civ. P. 4. Specifically, he alleges
that the State served him a petition for adjudication of contempt along with an order to show
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cause but failed to include a summons as required by the Rule.1 However, appellant is
mistaken. This court specifically held in Arkansas Department of Human Services v. R.P., 333
Ark. 516, 970 S.W.2d 225 (1998), that the rules of civil procedure do not apply in a criminal
contempt proceeding. Furthermore, this court rejected that a criminal summons was
necessary under Ark. R. Crim. P. 6.3. Id. Instead, this court held that
the governing provision is Ark. Code Ann. § 16-10-108, which sets forth the court’s
power to punish for criminal contempt and provides in part that “the party charged
shall be notified of the accusation and shall have a reasonable time to make his
defense.” Moreover, the Due Process Clause requires that an alleged contemnor be
given notice of the charge of contempt pending against him and be informed of the
specific nature of the charge.
Id. at 539–40, 970 S.W.2d at 237 (citing Fitzhugh v. State, 296 Ark. 137, 752 S.W.2d 275
(1988)). The petition and order to show cause sufficiently provided appellant with notice that
1
Additionally, appellant states that many additional rules were not followed if this court
“is persuaded to accept this matter as a criminal matter,” including Arkansas Rules of Criminal
Procedure, Arkansas Rules of Professional Conduct, and Arkansas Rules of Judicial Conduct.
Specifically, he mentions (1) that an ex parte hearing took place on December 5, 2012, after
he had already been served with a petition of adjudication of contempt and order to show
cause; (2) that his case was initially improperly styled “In the Circuit Court of Pulaski County,
Arkansas, James Valley, Third Division, Case No. 60 CV-12-5140” instead of in the name
of the State of Arkansas as required by Ark. R. Crim. P. 1.5; (3) that a citation was never
issued as required by Ark. R. Crim. P. 5.4; (4) that no information was filed or summons
issued pursuant to Ark. R. Crim. P. 6.1; and (5) that the State failed to comply with Ark. R.
Crim. P. 7.2 and 7.3. However, appellant failed to raise any of these allegations other than
the failure to comply with Ark. R. Civ. P. 4 in his motion to dismiss before the circuit court.
Furthermore, appellant failed to cite any convincing argument or legal authority, other than
merely quoting the rules themselves at times in his brief. This court has held on numerous
occasions that it will not consider the merits of an argument, even a constitutional one, if the
appellant fails to cite any convincing legal authority in support of the argument, and it is
otherwise not apparent without further research that the argument is well taken. Hollis v.
State, 346 Ark. 175, 55 S.W.3d 756 (2001); Omni Holding & Dev. Corp. v. S.A., Inc., 356 Ark.
440, 156 S.W.3d 228 (2004).
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he was accused of criminal contempt for failing to appear in compliance with the subpoena,
and the circuit court did not err in failing to grant appellant’s motion to dismiss. Therefore,
we affirm on this point on appeal.
Appellant contends in his second point on appeal that the circuit court erred in ruling
that the subpoena issued by the legislative audit committee was valid. Specifically, appellant
alleges that the subpoena was invalid because it was not accompanied by a witness fee
calculated at the rate of thirty dollars per day for attendance and twenty-five cents per mile
for travel from the witness’s residence to the place of the hearing in compliance with Ark.
Code Ann. § 10-4-421(c) and Ark. R. Civ. P. 45(d). Therefore, appellant alleges that he
could not be held in criminal contempt for not complying with an invalid subpoena.
This court reviews issues of statutory interpretation de novo and is not bound by the
circuit court’s determination. Nolan v. Little, 359 Ark. 161, 196 S.W.3d 1 (2004). This
court’s rules regarding statutory construction are clear and well established. The basic rule of
statutory construction is to give effect to the intent of the legislature. Calaway v. Practice
Mgmt. Servs., Inc., 2010 Ark. 432. Where the language of a statute is plain and unambiguous,
this court determines legislative intent from the ordinary meaning of the language used. Id.
In considering the meaning of a statute, this court construes it just as it reads, giving the words
their ordinary and usually accepted meaning in common language. Id. This court construes
the statute so that no word is left void, superfluous or insignificant, and this court gives
meaning and effect to every word in the statute, if possible. Id. If the language of a statute
is clear and unambiguous and conveys a clear and definite meaning, it is unnecessary to resort
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to the rules of statutory interpretation. Williams v. Little Rock Sch. Dist., 347 Ark. 637, 66
S.W.3d 590 (2002).
A statute is considered ambiguous if it is open to more than one construction. Pulaski
Cnty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007). When a statute
is ambiguous, this court must interpret it according to legislative intent and our review
becomes an examination of the whole act. Helena-W. Helena Sch. Dist. v. Fluker, 371 Ark.
574, 580, 268 S.W.3d 879, 884 (2007). In reviewing the act in its entirety, this court will
reconcile provisions to make them consistent, harmonious, and sensible in an effort to give
effect to every part. Williams, supra. In addition, this court must look at the legislative
history, the language, and the subject matter involved. Id. However, when a statute is clear,
it is given its plain meaning and this court will not search for legislative intent. Cave City
Nursing Home, Inc. v. Ark. Dep’t of Human Servs., 351 Ark. 13, 89 S.W.3d 884 (2002). This
court is very hesitant to interpret a legislative act in a manner that is contrary to its express
language, unless it is clear that a drafting error or omission has circumvented legislative intent.
Id.
Arkansas Code Annotated § 10-4-421 empowers the Legislative Auditor with
subpoena powers. Subsection (c) provides that “[a]ny person summoned to appear before the
Legislative Auditor . . . as required in this section shall receive the same compensation as is
received by persons serving as witnesses in circuit courts of this state.” Furthermore,
subsection (d) provides that “[i]f any person subpoenaed to appear by the Legislative Auditor
fails to appear . . . the fact shall be certified to the circuit court of the county in which the
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hearing is held, and the circuit court shall punish the person for contempt in the same manner
as punishment for contempt is imposed for failure to respond to a subpoena or directive of the
circuit court.”
Appellant alleges that the legislature in subsection (c) is making a reference to Ark. R.
Civ. P. 45(d), which provides that a “subpoena must be accompanied by a tender of a witness
fee calculated at the rate of $30.00 per day for attendance and $0.25 per mile for travel from
the witness’[s] residence to the place of the trial or hearing[,]” and argues that both the
amount and procedural manner provided under Ark. R. Civ. P. 45(d) should apply to
subpoenas issued by the Legislative Auditor. However, the plain language of Ark. Code Ann.
§ 10-4-421(c) only references the fact that a person “shall receive the same compensation”
and does not reference the time or manner in which the same amount of compensation
should be tendered. Furthermore, the subsection does not reference any other applicable
procedural rules. Therefore, appellant’s interpretation would have this court read a
requirement into the statute that the legislature has not intended. See Cave City Nursing
Home, Inc., supra. As such, the circuit court did not err in finding the subpoena valid, and we
affirm on this point on appeal.
Appellant contends in his last point on appeal that the circuit court erred in finding
him in criminal contempt and appears to be challenging the sufficiency of the evidence.2
2
Appellant again mentions several other alleged deficiencies that he alleges require his
case to be reversed and dismissed, including (1) a witness fee and mileage check was not
attached to the subpoena; (2) a criminal summons should have been issued to him; (3) his due
process was violated when his case became one of criminal contempt in an ex-parte hearing
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However, the State contends that appellant failed to preserve a sufficiency-of-the-evidence
claim because appellant failed to move for dismissal at the close of evidence in compliance
with Arkansas Rule of Criminal Procedure 33.1(b) as stated in Etoch v. State, 343 Ark. 361,
37 S.W.3d 186 (2001). We agree with the State. In Etoch, this court held that Ark. R. Crim.
P. 33.1 applied in criminal-contempt proceedings and that because Mr. Etoch failed to make
a timely motion for directed verdict, Mr. Etoch waived his challenge to the sufficiency of the
evidence. Id.
Affirmed.
James F. Valley, E. Dion Wilson, and Don R. Etherly, for appellant.
Dustin McDaniel, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee.
without any notice provided to him and, therefore, failed to apprise him of the issues, burden
of proof, and potential penalty; (4) the subpoena only quoted Ark. Code Ann. § 10-4-421 and
failed to contain any specific language in the subpoena to apprise him that his failure to attend
could result in a Class C Misdemeanor charge; and (5) there was no procedure in place to
reschedule “the general assembly meeting” or “process in place for quashing a subpoena.”
Statements (1) and (2) have already been addressed in points one and two on appeal. As this
court indicated in footnote one, appellant failed to raise any of the other allegations to the
circuit court. Furthermore, appellant failed to cite any convincing argument or legal
authority, other than to merely quote the rules themselves at times in his brief. This court has
held on numerous occasions that it will not consider the merits of an argument, even a
constitutional one, if the appellant fails to cite any convincing legal authority in support of the
argument, and it is otherwise not apparent without further research that the argument is well
taken. Hollis v. State, 346 Ark. 175, 55 S.W.3d 756 (2001); Omni Holding & Dev. Corp. v.
S.A., Inc., 356 Ark. 440, 156 S.W.3d 228 (2004).
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