*1 211 for a this section took the requests recovery under position their claims were not baseless. the circumstances in Considering we cannot in Act entirety conclude was error. provision 709 notice in an intent to sue raises requiring sixty days writing of significant due While and is harsh. manifestly questions it, Ozment, have Jackson 671S.W.2d 283 upheld 736 (1984), we have noted our Dawson v. also reservations. Gerritsen, it supra. juncture Suffice at this say are not appellants to be further penalized attempting escape from an obvious of which exist equal hardship, elsewhere in the law.
AFFIRMED.
Jack Diana YARBROUGH YARBROUGH 87-141 Court of
Supreme Arkansas delivered Opinion April *2 Clouette, for James P. appellant.
No brief filed for appellee. Justice. case emanates from a divorce Glaze, This
Tom action in ordered make monthly which the had Leen to appellant child support Appellant allegedly delinquent became payments. in his the trial a court order for payments, and issued him and why show cause he should not held in appear Ball, During Doyne to serve this attempt server, was attacked and beaten actions by appellant. Appellant’s resulted in trial court’s determine if setting that in criminal of court. At the end of appellant was hearing, the court found the and sentenced him guilty $100.00. to six We affirm. months and a fine we view the reviewing of criminal contempt, decision and record most favorable to the trial light judge’s that Rowell sustain decision if substantial evidence. supported Dennison v. (1983); S.W.2d 596 Chancellor, Mobley, and
The record reflects that the attacked fact, Mr. assaulted Mr. Ball. In Sims was an Larry eyewitness assault, testified that he observed appellant pursue and strike Ball. testified he arrived moments police A officer after bleeding the incident to find Ball appearing disheveled appel- serve “some attempting type subpoena” Ball, Although lant. he he appellant does not struck dispute he argues that was not in his action did not because that, constitute disobedience of further claims process. Appellant even if he were in limits applicable statutory contempt, *3 the sentence that can be in jail to a maximum ten imposed days $50.00. and a fine relies
Appellant Ark. Code Ann. 16-10-108 upon (1987) § which sets forth the powers court in criminal punishing He refers which (a)(3) to subsection particularly the provides punish “willful disobedience process it,” or order issued or made lawfully to subsection by (b)(1) which provides for a maximum of days ten $50.00. and a fine court, however,
This
has interpreted
foregoing
statutory
and has held
on the
provisions
are not
limitation
they
power of the court to inflict
punishment
disobedience of
Roberts,
process.
822,
Morrow v.
250 Ark.
467
Judge,
terms,
court,
7,
393 (1971). Stated
citing
mother
Article
26§
Constitution,
of the Arkansas
Legislature
held the
cannot
abridge the
power
the courts to
in
punish
disobedience
their
process;
Constitution
reserved
specially
courts,
this inherent
in
when
delegating authority
the Legislature to
v.
regulate punishments for contempts. Spight
State,
26,
155
State,
Ark.
Here, resisted could him, conduct that did so by trial court’s order in nature. willful, as criminal but also as only characterized not the court’s in willful disobedience acted Because the appellant to well-established according the trial process 16-10-1 law, penalties prescribed not limited to those § 08.1 imposed that the sentence contends
Finally, appellant That unusual punishment. cruel and the trial court constitutes therefore, and, we are below, however, was not raised argument, See, e.g., time on appeal. it for the first unable to consider Dawkins, Boatman J., dissents.
Purtle, never ceases Justice, This court dissenting. Purtle, I. John it has me, Now chancery. in matters of to amaze especially chancellors. jurisdiction try conferred statute is ineffective out that a state it points court. At and this of chancellors restricting contempt powers the United States ignores the same time the and double concerning due process Constitutional provisions jeopardy. that the violated
Without doubt the record reveals *4 is most probably Ball and Doyne a criminal law when he attacked However, will be tried on he has been or damages. liable for civil That damages. and or not be sued charges may may action may as disgusting is to the victim. As appellant’s up of protection to due and process equal he is still entitled appear, the law. General is matter for the
Punishment for indirect a of of the Constitution to define. Article Section Assembly Arkansas states: regulate by have
The General shall Assembly power not committed pres- the of punishments contempts contempt proceeding jury person trial in a criminal We note that a demand Hayes, Taylor imprisonment may 418 U.S. possible exceed six months. when the Jameson, (1984). (1974); Edwards v. 677 S.W.2d courts, or of ence of the or in disobedience hearing process. The legislation General has enacted Assembly presently codified at Ark. Ann. This section of Code 16-10-108 § code the defines which is within the inherent discretion The constituting contempt courts. statute also defines acts committed outside and of court and in presence hearing the the of disobedience of to Article Section 26 the process. Pursuant granted Constitution the General is such Assembly authority. The provisions various 16-10-108 stand alone and are clearly § Therefore, severable. we are bound to effect to those sections give which were enacted. committed outside the lawfully Contempts or presence which do not its or interrupt impair its respect, are limited the Constitution to punishment established by law. In this case has been limited punishment $50 legislature the to a fine no more than and no more than ten (10) days.
Punishment for committed in “presence hearing” of court is inherent is reserved to the specifically However, the General is authorized Assembly specifically by Constitution regulate punishment contempt commit- ted outside presence hearing of the courts and in disobedience process.
The assault on Mr. Ball was not in the presence Therefore, the court. it is a matter which the General has the Assembly law. The regulate by offensiveconduct here arose out of an server to serve attempt by process an order of the trial court The chancellor appellant. found appellant guilty with “interfering authorized to serve person orders and papers, by attacking the court and beating Doyne Ball who had served serving or was an order the court making return service thereon.”
The Ball “process” an serving was order at appear a “show cause” hearing. as appeared Therefore, ordered. he was disobedience of this order nor *5 was he in violation any other order revealed the record. He enraged became he apparently when was served and assaulted the server. The assault occurred nowhere near the court. His
action constituted a violation subjected of criminal him to civil The additional liability. punishment by the chancellor constitutional violates the fine time and a jail
form of offense. the same for against multiple punishments prohibition not tolerated is simply identical act for the Two punishments under the Constitution. of its opinion. in support cites several cases Roberts, v. Morrow
However,
In
find none of them point.
I
held
the trial court
822, 467
(1971),
S.W.2d 393
250 Ark.
Judge,
to
appear,
failing
obey subpoena
for
to
Morrow in contempt
court affirmed
hair cut. This
get
failure to
separately
get
for refusal to
conviction
but reversed his
failure to obey
was a refusal
the subpoena
failure to obey
hair cut. Morrow’s
State,
S.W.
155Ark.
v.
Spight
of the court.
the order
obey
grand jury
citation
contempt
involved a
(1922),
to serve him
was trying
when the sheriff
hiding
against Spight
State,
v.
Bryan
grand jury.
before the
testify
with a subpoena
based
163,
upon
also was
(1911),
No reference
State, 188 Ark.
v.
Freeman
concerning contempt.
reviewed prior
this court
(1934),
extensively
Similarly relating in matters reviewed our decisions (1987), thoroughly motion II the filed a of court. In Clark motion was baseless the trial court to recuse. The requesting was not judge The trial accused the of criminal misconduct. filed until some time aware motion had been that the scurrilous not be he should why later when he ordered Clark to show cause *6 criminal contempt held in The court convicted Clark of contempt. recused. that should have ground judge we reversed found Upon again retrial before another Clark judge, of the first filing accusing for the motion guilty contempt of the facts of the being again a crook. We reversed because case were insufficient to the basis for a conviction. form in Clark II was that the motion was not The thrust of our holding in as to be before presented “disruptive a manner the court or in a as to or disrespect such incite way disruption Therefore, the court such did by others.” acts not constitute contempt. Clark II cited with language
The from In approval Little, Larry Re (1972), U.S. 553 as follows: indication, There is no argue, and the State does not that petitioner’s statements were uttered in boisterous tone or wise any actually disrupted the court proceeding. Therefore, “the language vehemence used is not alone the measure of the power punish The fires which it kindles an must constitute imminent not merely likely, threat to the administration justice. danger must not be probable; remote even it must . . . immediately . law of is not imperil [T]he made for the protection judges who be sensitive to winds public opinion. are to be Judges men supposed fortitude, able to thrive in a Craig climate.” hardy Harney, U.S. “Trial . .must be on guard against confusing offenses their sensibilities with obstruction to the justice.” administration of Brown v. States, United 356 U.S. 153 (1958).
The reversal of this conviction is necessarily required
under our
in Holt v.
holding
Virginia,
“It is boisterously, acted loudly, valid court talked *7 officer or other or attempted prevent Their his duties. from court court carrying allegations nothing rest on whatever except convictions of venue and change disqualifica- made in motions bias on alleged tion because Judge Holladay at 136 at Id. U.S. part.” [404 555-556] all our carefully examining prior after Clark //opinion, States decisions of United cases on many Court, constituting justices concluded even those Supreme there majority any disruption would have affirmed “had been degrading accompanying insult or comment whatsoever open filing the motion.” a step It is that the in this case takes my to a knee-jerk backward is a reaction and that decision criminal assault which no manner disrupted Such should or reflected on the of the court. matters integrity and civil left to the and the criminal discretion victim Further, Constitu- terms of the Arkansas express tion, regulate it is the that has Assembly General hearing of the committed outside the contempts presence is in this case not courts. It has done so. The conduct of appellant in violation of the statute.
I would reverse and dismiss. Arkansas v. STATE of Sanders McDaniel CARTER 87-209 748 S.W.2d CR Arkansas Court of Supreme delivered Opinion April