{ "id": 1158959, "name": "Dan IVY v. The Honorable Tom J. KEITH, Judge", "name_abbreviation": "Ivy v. Keith", "decision_date": "2002-12-12", "docket_number": "02-283", "first_page": "269", "last_page": "289", "citations": [ { "type": "official", "cite": "351 Ark. 269" }, { "type": "parallel", "cite": "92 S.W.3d 671" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "306 Ark. 146", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1900965 ], "weight": 2, "year": 1991, "pin_cites": [ { "parenthetical": "holding that a trial judge was not required to believe a contemnor's testimony that she was without funds to pay an IRS debt, and upholding a finding of contempt." }, { "parenthetical": "holding that a trial judge was not required to believe a contemnor's testimony that she was without funds to pay an IRS debt, and upholding a finding of contempt." } ], "opinion_index": 0, "case_paths": [ "/ark/306/0146-01" ] }, { "cite": "225 Ark. 487", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1642940 ], "weight": 4, "year": 1955, "pin_cites": [ { "page": "490" }, { "page": "491" }, { "page": "342" } ], "opinion_index": 0, "case_paths": [ "/ark/225/0487-01" ] }, { "cite": "676 F. Supp. 823", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3965886 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/f-supp/676/0823-01" ] }, { "cite": "826 F. Supp. 632", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3830670 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/f-supp/826/0632-01" ] }, { "cite": "956 S.W.2d 849", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 298638 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/330/0458-01" ] }, { "cite": "300 Ark. 458", "category": "reporters:state", "reporter": "Ark.", "year": 1997, "opinion_index": 0 }, { "cite": "326 Ark. 182", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 12021454 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/326/0182-01" ] }, { "cite": "252 Ark. 659", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1630009 ], "weight": 4, "year": 1972, "pin_cites": [ { "page": "670" }, { "page": "930" } ], "opinion_index": 0, "case_paths": [ "/ark/252/0659-01" ] }, { "cite": "340 Ark. 583", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1365278 ], "weight": 3, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/340/0583-01" ] }, { "cite": "117 F. 448", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 3702381 ], "year": 1902, "pin_cites": [ { "page": "461" } ], "opinion_index": 0, "case_paths": [ "/f/117/0448-01" ] }, { "cite": "330 U.S. 585", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 353745 ], "year": 1947, "pin_cites": [ { "page": "593", "parenthetical": "quoting In re Nevitt, 117 F. 448, 461 (8th Cir. 1902)" } ], "opinion_index": 0, "case_paths": [ "/us/330/0585-01" ] }, { "cite": "296 Ark. 137", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1892741 ], "weight": 8, "year": 1988, "pin_cites": [ { "page": "138" }, { "page": "276" }, { "page": "139" }, { "page": "276" }, { "page": "140" }, { "page": "277" }, { "page": "139" }, { "page": "276-277" } ], "opinion_index": 0, "case_paths": [ "/ark/296/0137-01" ] }, { "cite": "15 Ark. App. 113", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139000 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "116", "parenthetical": "\"[Criminal contempt punishes while civil contempt coerces.\" (emphasis in original)" }, { "page": "364", "parenthetical": "\"[Criminal contempt punishes while civil contempt coerces.\" (emphasis in original)" } ], "opinion_index": 0, "case_paths": [ "/ark-app/15/0113-01" ] }, { "cite": "496 U.S. 384", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12123482 ], "year": 1990, "pin_cites": [ { "parenthetical": "noting that contempt, Rule 11 sanctions, and award of attorneys' fees are all actions separate and apart from the underlying proceeding and that all three actions concern the integrity of the court and judicial process, not the merits of the underlying claim" } ], "opinion_index": 0, "case_paths": [ "/us/496/0384-01" ] }, { "cite": "228 Ark. 46", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8717469 ], "weight": 2, "year": 1957, "opinion_index": 0, "case_paths": [ "/ark/228/0046-01" ] }, { "cite": "299 Ark. 103", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1888426 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/299/0103-01" ] }, { "cite": "264 Ark. 697", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1669073 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "710", "parenthetical": "\"[T]he disobedience of any valid judgment, order or decree of a court having jurisdiction to enter it is such an interference with the administration of justice as to constitute contempt.\"" }, { "page": "666", "parenthetical": "\"[T]he disobedience of any valid judgment, order or decree of a court having jurisdiction to enter it is such an interference with the administration of justice as to constitute contempt.\"" } ], "opinion_index": 0, "case_paths": [ "/ark/264/0697-01" ] }, { "cite": "268 Ark. 532", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1715450 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "534", "parenthetical": "\"Disobedience of any valid judgment, order, or decree of a court having jurisdiction to enter it may constitute contempt.\"" }, { "page": "597", "parenthetical": "\"Disobedience of any valid judgment, order, or decree of a court having jurisdiction to enter it may constitute contempt.\"" } ], "opinion_index": 0, "case_paths": [ "/ark/268/0532-01" ] }, { "cite": "295 Ark. 211", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893719 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/295/0211-01" ] }, { "cite": "311 Ark. 477", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1897011 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/311/0477-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-10-108", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 5, "year": 1999, "pin_cites": [ { "parenthetical": "a" }, { "page": "(c)" }, { "page": "(c)" } ], "opinion_index": 0 }, { "cite": "318 Ark. 764", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1455960 ], "weight": 3, "year": 1994, "pin_cites": [ { "parenthetical": "holding that when contemnor had to remain in jail pending a show-cause hearing, appeal remedy was useless" }, { "parenthetical": "holding that when contemnor had to remain in jail pending a show-cause hearing, appeal remedy was useless" } ], "opinion_index": 0, "case_paths": [ "/ark/318/0764-01" ] }, { "cite": "341 Ark. 771", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1257705 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/341/0771-01" ] }, { "cite": "343 Ark. 186", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 226550 ], "weight": 15, "year": 2000, "pin_cites": [ { "page": "195-196" }, { "page": "498", "parenthetical": "holding that when contemnors were jailed indefinitely by the trial judge, an appeal to dispute the jail sentence is useless" }, { "page": "197" }, { "page": "499" }, { "page": "197" }, { "page": "499" }, { "page": "202" }, { "page": "502" } ], "opinion_index": 0, "case_paths": [ "/ark/343/0186-01" ] }, { "cite": "257 Ark. 216", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718827 ], "weight": 2, "year": 1974, "opinion_index": 1, "case_paths": [ "/ark/257/0216-01" ] }, { "cite": "309 Ark. 336", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1906100 ], "weight": 2, "year": 1992, "opinion_index": 1, "case_paths": [ "/ark/309/0336-01" ] }, { "cite": "252 Ark. 950", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1630113 ], "weight": 2, "year": 1972, "opinion_index": 1, "case_paths": [ "/ark/252/0950-01" ] }, { "cite": "339 Ark. 621", "category": "reporters:state", "reporter": "Ark.", "year": 1960, "opinion_index": 1 }, { "cite": "232 Ark. 688", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1694073 ], "year": 1960, "opinion_index": 1, "case_paths": [ "/ark/232/0688-01" ] }, { "cite": "228 Ark. 46", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8717469 ], "weight": 2, "year": 1957, "opinion_index": 1, "case_paths": [ "/ark/228/0046-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-10-108", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1999, "pin_cites": [ { "page": "(c)" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 1403, "char_count": 36613, "ocr_confidence": 0.732, "pagerank": { "raw": 5.425660071033707e-07, "percentile": 0.9448236171298018 }, "sha256": "47742bd75e43e7c9adef762cdb69a619b5aed143e3a348f8e7cd36f9f9b71209", "simhash": "1:7b98cbb17c66e3be", "word_count": 6410 }, "last_updated": "2023-07-14T20:20:47.503009+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Arnold, C.J., not participating.", "Glaze and Imber, JJ., concurring in part and dissenting in part.", "Imber, J., joins this opinion.", "Arnold, C.J., not participating." ], "parties": [ "Dan IVY v. The Honorable Tom J. KEITH, Judge" ], "opinions": [ { "text": "Robert L. Brown, Justice.\nPetitioner Dan Ivy petitions this court for a writ of certiorari that respondent, Honorable Tom J. Keith, circuit judge, has exceeded his authority in sentencing Mr. Ivy to jail for thirty-six days for contempt of court. In the alternative, Mr. Ivy appeals Judge Keith\u2019s order that he serve this sentence for contempt. The respondent, Judge Keith, found the petitioner in contempt of court after he failed to pay Rule 11 sanctions in connection with a civil case tried in his court. Judge Keith sentenced Mr. Ivy to thirty-six days in jail. He also orally ordered a payment schedule of $1,000 a month to begin sixty days after release from jail. On March 27, 2002, this court stayed Judge Keith\u2019s order and granted Mr. Ivy\u2019s motion for expedited appeal. Judge Keith has requested that the Attorney General not file a brief on his behalf. We are, therefore, limited in our review to Mr. Ivy\u2019s brief in support of the petition.\nThe facts leading up to the Rule 11 sanctions are taken from Judge Keith\u2019s Order for Rule 11 Sanctions. On March 2, 2001, Mr. Ivy filed a civil lawsuit on behalf of Jerry Otis for damages arising from a car accident between Otis and Helen R. Walton. In his complaint, Mr. Ivy prayed for punitive damages on the basis that Mrs. Walton was intoxicated at the time of the accident and the Bentonville Police Department \u201cknowingly protected her reputation.\u201d On November 16, 2001, Judge Keith granted partial summary judgment in favor of Mrs. Walton on the punitive damages issue, finding that there was \u201cnot even a scintilla of evidence\u201d supporting Mr. Ivy\u2019s allegations made on behalf of Otis.\nMr. Ivy refused to retract his claim on behalf of Otis, however, and subsequently, according to Judge Keith, \u201ccompounded the seriousness of the [Rule 11] violation by restating the allegation in an amended complaint and various other pleadings filed with the Court.\u201d On December 7, 2001, Judge Keith found that Mr. Ivy\u2019s allegations on behalf of Otis \u201cwere not made in good faith, but rather were imposed for an improper purpose\u201d and, thus, violated Rule 11 of the Arkansas Rules of Civil Procedure. Judge Keith\u2019s order for Rule 11 sanctions imposed a $12,085.27 fine on Mr. Ivy which amount corresponded to opposing counsel\u2019s attorneys\u2019 fees and costs. The sanction was to be paid within thirty days. The Rule 11 order also stated: \u201cThe failure to pay this sanction within 30 days of the entry of this Order shall constitute contempt of court.\u201d\nOn January 25, 2002, during a pretrial hearing on the Otis case, Mr. Ivy told Judge Keith that he had been served with an order for Rule 11 sanctions. Mr. Ivy questioned the judge about whether the contempt threat was standard practice in his court. The judge replied, \u201cThat\u2019s \u2014 that\u2019s the Court\u2019s order, Mr. Ivy.\u201d Mr. Ivy then asked whether, if he was unable to pay the sanction, should he submit himself to go to jail. Judge Keith responded, \u201cIf you want \u2014\u2022 if you want to admit contempt of Court and go to jail, that\u2019s up to you.\u201d\nOn February 11, 2002, in an effort to settle with Mrs. Walton, Mr. Ivy sent a letter to Mrs. Walton\u2019s counsel and offered to pay the Rule 11 sanctions at a rate of $500.00 per month, beginning on March 1, 2002. The next day, Mrs. Walton\u2019s counsel alerted Judge Keith that Mr. Ivy had made no payments on his fine and of Mr. Ivy\u2019s settlement offer, which counsel maintained he had no power to accept because it would violate the Judge\u2019s order.\nOn February 20, 2002, Judge Keith issued a summons for Mr. Ivy to appear in court on March 7, 2002, and show cause why he should not be held in contempt for violating the judge\u2019s Rule 11 order.\nOn March 7, 2002, Judge Keith conducted the contempt hearing, at which time Mr. Ivy told Judge Keith that the reason he had not complied with the order was he did not have enough money to pay the Rule 11 sanctions. The judge asked Mr. Ivy if he had any evidence in support of his claim of inability to pay. Mr. Ivy replied that he was under oath as an attorney to tell the truth, and then related a litany of financial problems: he stated that he owed $300,000 to the IRS as the result of a divorce, that he had lost all of his office assets to satisfy a judgment against him and that his mother had bought them at auction, and that he owned no assets beyond clothing and personal possessions. Mr. Ivy recounted previous times that he had been ordered to pay money to the other side and reminded the court that he had always paid his fines on those occasions. Mr. Ivy related that the nature of his practice was such that he had an uneven cash flow from one day to the next.\nThe following colloquy then occurred:\nMr. Ivy: It would be difficult for me to come up with $500 today, in fact I couldn\u2019t, but tomorrow I could have $20,000 in my pocket. ... I have taken a vow of poverty when I became a minister \u2014\nThe Court: I don\u2019t want to hear that. I agree with that old sage who says religion and patriotism become the last refuge of scoundrels. And I don\u2019t want to hear that. This is a civil courtroom and I don\u2019t want to hear that.\nMr. Ivy: Then I wish to object, your Honor.\nThe Court: Well, I don\u2019t care if you object.\nMr. Ivy: And I wish to proffer.\nThe Court: I \u2014 I don\u2019t care. You\u2019re \u2014 what your religious leanings or practices are is your business but it\u2019s not a part of this proceeding.\nMr. Ivy: Then God has no place in your courtroom, Your Honor?\nThe Court: What your religious practices are, Mr. Ivy, do not have any part in this proceeding. Now, you may continue, but \u2014 but I don\u2019t want \u2014 what you do in your religious practice is your business, it\u2019s not a part of this proceeding.\nMr. Ivy: Your Honor, if \u2014\u2022\nThe Court: Did I understand you to say that you agree that \u2014 that the appropriate step for the Court to take at this time is to incarcerate you?\nMr. Ivy: Your Honor, yes, Your Honor. I see no alternative to it. I have \u2014 I have no way to pay the Court. The other side, the richest woman in the world has the money \u2014\nThe Court: I don\u2019t want \u2014 I don\u2019t want you engaging in that kind of language in this court. I\u2019m sick and tired of you using this inflammatory language. You\u2019re no Robin Hood, you\u2019re no Friar Tuck and I don\u2019t want to \u2014 I don\u2019t want you playing the role in this courtroom.\nMr. Ivy: Your Honor, I consider myself to be a Robin Hood.\nThe Court: Well, you\u2019re no Robin Hood and you\u2019re certainly no Friar Tuck. Anything else you wish to say?\nMr. Ivy: . . . Your honor has the right to put me in jail for whatever time, five years if you want to. Of course, at that point some \u2014 certain rights might kick in, might become criminal. But when an attorney tries to stand up for truth and justice \u2014\nThe Court: That doesn\u2019t have anything to do with this. We\u2019ve already addressed that issue. The Court has already found that all these allegations that you\u2019ve made were \u2014 were without foundation, were frivolous, without merit. If you want to take that up on appeal \u2014 but that argument is closed.\nMr. Ivy: It\u2019s not closed pending new evidence I assume, Your Honor.\nThe Court: It\u2019s closed until \u2014 until \u2014 until some higher court says it\u2019s not closed. I\u2019ve already ruled on that, we\u2019re not going to revisit it.\nMr. Ivy: I am prepared to submit myself to the will of the Court for whatever they wish to do. I am without the funds to pay the contempt charge and that \u2014 I guess that\u2019s all a person can say.\nYou know, it is difficult for me to stand here and look around this courtroom when I realize that this courtroom \u2014 well, the renovations that the courthouse was paid for by Mrs. Walton. I mean $600,000.\nThe Court: Mr. Mr. Ivy, I am \u2014 I\u2019m going to remand (sic) you. You better start addressing the issues. . . .\nNow you can address the issue or you can sit down but I don\u2019t want to hear all this stuff\u2014 this Robin Hood stuff that you like to preach. That\u2019s not the issue.\nMr. Ivy: Yes, Your Honor. The issue is I am without funds to pay it, I do not have no way (sic) to raise it. I have attempted to negotiate \u2014\nThe Court: Have you got any evidence to offer in support of your position?\nMr. Ivy: No, sir, Your Honor.\nAfter a brief recess, Judge Keith issued his ruling from the bench:\nThe Court: . . . The court finds that you [Mr. Ivy] have willfully disobeyed the Court\u2019s order and orders the following: That you will be incarcerated in the Benton County Jail for a period of 36 days and that you pay the balance, what you owe, the 12,000 that the Court has ordered at the rate of $1,000 per month beginning 60 days after your release. You\u2019ll be remanded to the custody of the sheriff.\nOn that same day, Judge Keith signed a County Jail Order, sentencing Ivy to thirty-six days in jail. There was no reference in the County Jail Order to payment of the $12,085.27 Rule 11 sanctions. On March 13, 2002, Mr. Ivy filed his notice of appeal from the County Jail Order. On March 25, 2002, Mr. Ivy petitioned this court for a writ of certiorari on the basis that the trial court had exceeded its authority in sentencing him to jail and moved to stay Judge Keith\u2019s order. The motion to stay was granted by this court on March 25, 2002, and the matter was expedited.\nI. Due Process\nThe first basis for Mr. Ivy\u2019s certiorari petition is an asserted violation of his right to due process of law, as afforded under the Arkansas and United States Constitutions.\nA writ of certiorari is appropriate when the face of the record shows that no other remedy is available to correct a plain, manifest, and gross abuse of discretion by the trial judge. E.g., Johnson v. Johnson, 343 Ark. 186, 33 S.W.3d 492 (2000). See also Arkansas Democrat-Gazette v. Zimmerman, 341 Ark. 771, 20 S.W.3d 301 (2000). Certiorari proceedings are governed by the normal appellate rules unless the normal appellate review process would be useless, such as when the contemnor has to remain in jail during the course of the appeal. See Johnson, 343 Ark. at 195-196, 33 S.W.3d at 498 (holding that when contemnors were jailed indefinitely by the trial judge, an appeal to dispute the jail sentence is useless); Bates v. McNeil, 318 Ark. 764, 888 S.W.2d 642 (1994) (holding that when contemnor had to remain in jail pending a show-cause hearing, appeal remedy was useless). The situation here is on point with Johnson and Bates, because the thirty-six day jail-time would run but for this court\u2019s stay and expedited appeal. Mr. Ivy is correct in pursuing a writ of certiorari.\na. Contempt Generally.\nIn order to evaluate Mr. Ivy\u2019s due process claims, it is initially necessary to identify precisely what action by Mr. Ivy was deemed to be contemptuous and what type of contempt Judge Keith invoked.\nThe Arkansas Constitution addresses the contempt power of the courts and the power of the General Assembly to regulate con-tempts not committed in front of the judge:\n\u00a7 26. Punishment of indirect contempt provided for by law.\nThe General Assembly shall have power to regulate the punishment of contempts not committed in the presence or hearing of the courts, or in disobedience of process.\nArk. Const, art. 7 \u00a7 26.\nState law then sets out the contempt power of the courts and the appropriate penalties, with the exception of contempts committed in the immediate view and presence of the court:\n(a) Every court of record shall have power to punish, as for criminal contempt, persons guilty of the following acts, and no others:\n(1) Disorderly, contemptuous, or insolent behavior committed during the court\u2019s sitting in-its immediate view and presence, and directly tending to interrupt its proceedings or to impair the respect due to its authority;\n(2) Any breach of the peace, noise, or disturbance directly tending to interrupt its proceedings;\n(3) Willful disobedience of any process or order lawfully issued or made by it;\n(4) Resistance, willfully offered, by any person to the lawful order or process of the court; and\n(5) The contumacious and unlawful refusal of any person to be sworn as a witness and, when so sworn, a similar refusal to answer any legal and proper interrogatory.\n(b) (1) Punishments for contempt may be by fine or imprisonment in the jail of the county where the court may be sitting, or both, in the discretion of the court. However, the fines shall in no case exceed the sum of fifty dollars ($50.00) nor the imprisonment ten (10) days.\n(2) Courts shall always have power to imprison until their adjournment.\n(b) (3) When any person is committed to prison for the nonpayment of any such fine, he shall be discharged at the expiration of thirty (30) days.\n(c) Contempts committed in the immediate view and presence of the court may be punished summarily. In other cases, the party charged shall be notified of the accusation and shall have a reasonable time to make his defense.\n(d) (1) Whenever any person is committed for a contempt under the provisions of this section, the substance of his offense shall be set forth in the order or warrant of commitment.\nArk. Code Ann. \u00a7 16-10-108 (Repl. 1999).\nOur constitution and caselaw make it clear that the courts of this state have inherent power to punish a contemnor for contempts committed in the presence of the court or in disobedience of process. Ark. Const. art. 7, \u00a7 26. See also Johnson v. Johnson, supra; Carle v. Burnett, 311 Ark. 477, 845 S.W.2d 7 (1993); Yarbrough v. Yarbrough, 295 Ark. 211, 748 S.W.2d 123 (1988). This inherent power goes beyond the statutory authority provided by \u00a7 16-10-108. There is no question that willful disobedience of a valid order of a court is contemptuous behavior. Ark. Code Ann. \u00a7 16-10-108 (a) (3) (Repl. 1999). See also Hilton Hilltop v. Riviere, 268 Ark. 532, 534, 597 S.W.2d 596, 597 (1980) (\u201cDisobedience of any valid judgment, order, or decree of a court having jurisdiction to enter it may constitute contempt.\u201d); Henderson v. Dudley, 264 Ark. 697, 710, 574 S.W.2d 658, 666 (1978) (\u201c[T]he disobedience of any valid judgment, order or decree of a court having jurisdiction to enter it is such an interference with the administration of justice as to constitute contempt.\u201d). Before a person can be held in contempt for violating a court order, the order must be definite in its terms, clear as to what duties it imposes, and express in its commands. E.g., Lilly v. Earl, 299 Ark. 103, 771 S.W.2d 277 (1989).\nWe have observed in the past that contempt ,is a matter between the judge and the litigant, and not between the two opposing litigants. See Hickinbotham v. Williams, 228 Ark. 46, 305 S.W.2d 841 (1957). Cf. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990) (noting that contempt, Rule 11 sanctions, and award of attorneys\u2019 fees are all actions separate and apart from the underlying proceeding and that all three actions concern the integrity of the court and judicial process, not the merits of the underlying claim).\nWe next examine what category of contempt is involved.\nb. Criminal and Civil Contempt\nContempt is divided into criminal contempt and civil contempt. Johnson, 343 Ark. at 197, 33 S.W.3d at 499. Criminal contempt preserves the power of the court, vindicates its dignity, and punishes those who disobey its orders. Johnson, 343 Ark. at 197, 33 S.W.3d at 499. Civil contempt, on the other hand, protects the rights of private parties by compelling compliance with orders of the court made for the benefit of private parties. Id. This court has often noted that the line between civil and criminal contempt may blur at times. Id. Our Court of Appeals has given a concise description of the difference between civil and criminal contempt. See Baggett v. State, 15 Ark. App. 113, 116, 690 S.W.2d 362, 364 (1985) (\u201c[Criminal contempt punishes while civil contempt coerces.\u201d (emphasis in original)).\nIn determining whether a particular action by a judge constitutes criminal or civil contempt, the focus is on the character of relief rather than the nature of the proceeding. Fitzhugh v. State, 296 Ark. 137, 138, 752 S.W.2d 275, 276 (1988). Because civil contempt is designed to coerce compliance with the court\u2019s order, the civil contemnor may free himself or herself by complying with the order. See Id. at 139, 752 S.W.2d at 276. This is the source of the familiar saying that civil contemnors \u201ccarry the keys of their prison in their own pockets.\u201d Id. at 140, 752 S.W.2d at 277 (quoting Penfield Co. v. S.E.C., 330 U.S. 585, 593 (1947) (quoting In re Nevitt, 117 F. 448, 461 (8th Cir. 1902)). Criminal contempt, by contrast, carries an unconditional penalty, and the contempt cannot be purged. Fitzhugh, 296 Ark. at 139, 752 S.W.2d at 276-277.\nIn the instant case, Judge Keith ruled from the bench that Mr. Ivy was to serve a fixed term of thirty-six days in jail, followed by a payment of $1,000 per month to start sixty days after the jail term ended. The County Jail Order referred only to the thirty-six days to serve. By the terms of that order, Mr. Ivy could not purge himself of the jail sentence by paying the Rule 11 sanctions. We conclude that the jail sentence was intended as a punishment, not as an inducement to pay. Flence, Mr. Ivy was clearly held in criminal contempt.\nc. Direct and Indirect Contempt\nBoth the Arkansas Constitution and the governing state statute distinguish between direct and indirect contempt. See Ark. Const., art. 7, \u00a7 26; Ark. Code Ann. \u00a7 16-10-108 (Repl. 1999). See also Allison v. DuFresne, 340 Ark. 583, 12 S.W.3d 216 (2000); Davis v. Meritt, 252 Ark. 659, 480 S.W.2d 924 (1972). Direct contempt is a contemptuous act \u201ccommitted within the immediate presence of the Court ...\u201d Meritt, 252 Ark. at 670, 480 S.W.2d at 930. Indirect contempt is contemptuous behavior committed outside the presence of the judge. An obvious example of direct contempt, besides open misconduct in the courtroom, is a party coming to court drunk. See Burradell v. State, 326 Ark. 182, 931 S.W.2d 100 (1996). Examples ofindirect contempt include an attorney\u2019s failure to appear in court before receiving permission to withdraw as counsel (Allison v. DuFresne, supra), and failure to pay court costs (Bates v. McNeil, supra).\nIn a recent case, this court upheld a trial judge\u2019s finding that two prosecutors were in direct criminal contempt when they did not comply with a scheduling order and proceed to trial on the trial date. See Johnson v. Johnson, 343 Ark. 186, 33 S.W.3d 492 (2000). After the trial judge held the two prosecutors in contempt for violating his scheduling order and remanded them to the sheriff the prosecutors petitioned this court for a writ of certiorari. In denying the writ, we said:\nThe issue was one of proceeding to trial which the prosecutors refused to do in direct contravention of the judge\u2019s scheduling order. This occurred in front of the judge and under our statutes and under the judge\u2019s inherent authority punishment could be summarily meted out.\nJohnson, 343 Ark. at 202, 33 S.W.3d at 502.\nThe Johnson opinion uses the language associated with direct contempt. If the failure to comply with the judge\u2019s order had been considered indirect contempt, that is, outside of the trial judge\u2019s presence, then the prosecutors would have been entitled to the due process protections of notification of the accusation and a reasonable time to make a defense. See Ark. Code Ann. \u00a7 16-10-108(c) (Repl. 1999).\nMr. Ivy\u2019s arguments in support of his writ all rest on the central assumption that he was held in indirect criminal contempt by Judge Keith. According to Mr. Ivy, because he was held in indirect contempt rather than direct contempt, due process rights, such as the right to have his guilt proven beyond a reasonable doubt, the right to counsel, and the right to trial by jury, attached, and the trial judge violated those rights.\nWe agree that Judge Keith held Mr. Ivy in indirect contempt for willfully disobeying a prior order. When that is the case, the contemnor, as just mentioned, is entitled to notice of the accusation and a reasonable time to make a defense. Ark. Code Ann. \u00a7 16-10-108(c) (Repl. 1999). Mr. Ivy did little to invoke his due process rights before the trial court. As best we can determine, he merely made the following statement: \u201cYour honor has the right to put me in jail for whatever time, five years if you want to. Of course, at that point \u2014 some certain rights might kick in, might become criminal. . . .\u201d\nOn appeal, however, he raises specific due process deprivations for the first time \u2014 shifting the burden of proof, right to counsel, and right to a jury trial. We decline to address these specific points, because it is elementary that an issue, even a constitutional issue, must first be raised before the trial court. E.g., Green v. State, 300 Ark. 458, 956 S.W.2d 849 (1997). Here, that was not done. Even where the requested relief is certiorari. for a gross abuse of the trial judge\u2019s discretion, the trial court must first be presented with those rights the defendant contends were not afforded to him.\n' The statutory rights under \u00a7 16-10-108 (c) of (1) notice of the accusation, and (2) a reasonable time to make a defense are a different matter. Mr. Ivy is an attorney. He knew of the contempt contingency as early as the Rule 11 order on January 8, 2002. He then questioned Judge Keith about possible contempt on January 25, 2002. He was then served with a notice of noncompliance with the Rule 11 order, which was mailed on February 12, 2002. He next received an Order of Summons for a show-cause hearing related to failure to comply with the Rule 11 order, which was filed on February 20, 2002. The show-cause hearing then took place on March 7, 2002. Clearly, Mr. Ivy was afforded ample notice of the accusation and reasonable time to make a defense. Moreover, he never argued to Judge Keith that he was prejudiced by the shortness of notice or time to prepare. We hold that Mr. Ivy was not deprived of his statutory protections.\nII. Substantial Evidence\nFor his next argument, Mr. Ivy argues that there was insufficient evidence presented to show that his nonpayment of the Rule 11 sanction was \u201cwillful disobedience.\u201d He argues that, to the contrary, the record indicates that he tried to resolve his financial dilemma by offering to pay at a reduced rate of $500 a month. He also maintains that he advised the judge that he could not pay. Mr. Ivy asserts that Judge Keith simply concluded that he willfully disobeyed the Rule 11 order without sufficient evidence to support this finding. He also claims that the record supports the fact that the real reason he was found in contempt had to do with the merits of the underlying case. Specifically, he contends: \u201cthe trial judge was evidently frustrated with the Petitioner because of the behavior which had triggered the trial court\u2019s original decision to impose a sanction. However, the purpose of this contempt proceeding was to determine whether the Petitioner had willfully and inexcusably failed to comply with the sanction order \u2014 not to review the reasons for imposing the sanction in the first place.\u201d\nWhat was in Judge Keith\u2019s mind, of course, is speculation on Mr. Ivy\u2019s part. Mr. Ivy, however, is correct that criminal contempt is not appropriate as a penalty for violating Rule 11. Indeed, our research has only disclosed the use of civil contempt to coerce payment of Rule 11 sanctions. See, e.g., Verone v. Taconic Tel. Corp., 826 F. Supp. 632 (N.D. N.Y. 1993); Cannon v. Loyola University of Chicago, 676 F. Supp. 823 (E.D. Ill. 1987). The rule itself lists as \u201cappropriate sanction[s]\u201d reasonable expenses incurred by the litigation, including attorney\u2019s fees. See Ark. R. Civ. P. 11. Manifestly, the trial judge should not be allowed to do indirectly with the criminal contempt power what he could not do directly under Rule 11. We hold that Judge Keith plainly, manifestly, and grossly abused his discretion in using criminal contempt as a penalty for failure to pay the Rule 11 sanctions.\nMr. Ivy also raises the specter of a party being jailed essentially for inability to pay a debt. The practice of imprisoning people for debts was abolished by the Debtor\u2019s Act of 1869. See Black\u2019s Law Dictionary 412 (7th Ed. 1999) (defining \u201cDebtor\u2019s Act of 1869\u201d). Moreover, our own constitution provides: \u201cNo person shall be imprisoned for debt in any civil action, or mense or final process, unless in cases of fraud.\u201d Ark. Const. art. 2, \u00a7 16. This court has said, in the civil contempt context, that \u201clack of ability to pay is a complete defense against enforcing payment from the defendant by imprisonment.\u201d Griffith v. Griffith, 225 Ark. 487, 490, 283 S.W.2d 340 (1955). The Griffith court further said: \u201c[t)he court is empowered to punish the defendant by imprisonment for willful obstinancy where it shall appear that he had the means with which to comply with the decree, but it should not imprison him where he shows that he has not the pecuniary ability to comply with the decree and is in such ill health that he cannot earn enough money to do so.\u201d Id. at 491, 283 S.W.2d at 342.\nBearing this fundamental principle in mind, we are convinced, however, that Mr. Ivy received his day in court on his defense of inability to pay, albeit for criminal comtempt. As already noted in this opinion, he had ample notice of the show-cause hearing. Yet, he came to the hearing armed only with his contention that he could not pay the Rule 11 sanctions at that time. It is clear that Judge Keith gave Mr. Ivy every opportunity to put on evidence. At the start of the hearing on March 7, 2002, the trial court asked Mr. Ivy: \u201cDo you have any evidence \u2014 are you prepared to offer evidence in support of your position?\u201d Mr. Ivy responded with a long answer in which he stated \u201cunder penalty of perjury, [because] an attorney has an obligation to tell the truth in court\u201d that (1) he had no assets except for clothes and a few personal possessions; (2) he owes the IRS about $300,000; (3) he had considered filing bankruptcy; (4) he offered, beginning March 1, to pay off the sanction at $500 a month, which he said he could afford; (5) that-he could have $20,000 to $30,000 in his pocket tomorrow because of the way his income is; (6) his mother purchased all his office assets at a sale following execution on a judgment; (7) that he understood jail is the proper remedy for nonpayment; (8) that he previously had made court ordered payments for smaller amounts; (9) that he had taken a vow of poverty when he became a minister.\nDuring the course of the hearing, the trial judge continued to request evidence from Mr. Ivy: \u201cAnything else you wish to say?\u201d jnd \u201cNow, you can address the issue. . . . \u201c Just before adjourning to' make his decision, the trial judge asked Mr. Ivy a final time: \u201cHave you got any evidence to offer in support of your position?\u201d To this, Mr. Ivy answered simply, \u201cNo, sir, Your Honor.\u201d\nAccording to Mr. Ivy, Judge Keith should have made inquiries into whether he was indeed indigent. Yet, we see indigency as a defense to contempt and one that should have been mounted by Mr. Ivy as part of his effort to show cause why he should not be held in contempt. It was Mr. Ivy\u2019s obligation and responsibility to present evidence of his allegedly dire financial condition on March 7, 2002. He failed to do so.\nFurthermore, Judge Keith, sitting as fact-finder, was still entitled to judge the credibility of this witness. In short, as the trial judge, he was not required to believe Mr. Ivy\u2019s bare assertion that he could not pay. See Gatlin v. Gatlin, 306 Ark. 146, 811 S.W.2d 761 (1991) (holding that a trial judge was not required to believe a contemnor\u2019s testimony that she was without funds to pay an IRS debt, and upholding a finding of contempt.)\nNevertheless, finding Mr. Ivy in criminal contempt for not paying the Rule 11 sanctions constituted a plain, manifest, and gross abuse of discretion, and we grant the writ of certiorari. .We void the sentence of thirty-six days in jail and remand the matter for further proceedings, which may include proceedings for civil contempt if deemed appropriate by the trial court in this case. We direct that should the trial court wish to pursue civil contempt against Mr. Ivy for failure to pay the Rule 11 sanctions that a new notice and reasonable time to make a defense be afforded him under Ark. Code Ann \u00a7 16-10-108(c). At first blush, it would appear that there is little to be gained from holding still another show-cause hearing on Mr. Ivy\u2019s financial status in connection with civil contempt. By the same token, we can conceive of how clear notice of what type of contempt Mr. Ivy might be facing under the circumstances by not paying the sanctions and the potential sentence following a finding of contempt would be important to him in fashioning his defense of inability to pay. Of course, if Mr. Ivy is indeed unable to pay the sanctions, placing him in jail to coerce him to pay as part of civil contempt would equate to holding him in criminal contempt. Because we grant the writ of certiorari, it is unnecessary to address Mr. Ivy\u2019s identical arguments as a direct appeal.\nPetition for writ of certiorari granted.\nRemanded.\nArnold, C.J., not participating.\nGlaze and Imber, JJ., concurring in part and dissenting in part.\nMr. Ivy\u2019s brief shows \u201cState of Arkansas, Benton County Circuit Court \u2014 Div. \u00cd, and Benton County Sheriff Andy Lee\u201d as respondents. We conclude that Hon. Tom J. Keith, as shown on the record of this case, is the more appropriate party for a certiorari petition.\nIn response to the concurrence in part and dissent in part, it is undisputed from the record that at the time of appeal, Mr. Ivy had not paid the Rule 11 sanctions in violation of Judge Keith\u2019s order. Under these circumstances, it is proper for Judge Keith to proceed with a show-cause order for civil contempt, should he choose to do so. If Mr. Ivy has now paid the sanctions, he can so advise Judge Keith. If not, he must show cause why he should not be held in contempt.", "type": "majority", "author": "Robert L. Brown, Justice." }, { "text": "Tom Glaze, Justice,\nconcurring in part and dissenting in part. I agree that Judge Keith abused his discretion in using criminal contempt as a penalty for Mr. Ivy\u2019s failure to pay Ms. Helen Walton\u2019s attorney\u2019s fees and costs as Rule 11 sanctions. However, the majority court is simply wrong in concluding that \u201cMr. Ivy received his day in court on his defense of inability to pay [the sanctions].\u201d Ivy did have an abbreviated hearing on criminal contempt, but, as acknowledged in the majority opinion, the judge erred in this respect because criminal contempt is not an available remedy to enforce Rule 11 sanctions.\nThe majority opinion then directs that this case be remanded for further proceedings which may include civil contempt. If the majority opinion merely ended at this point, by remanding this case for further proceedings, I could agree with that part of this court\u2019s ruling, too, since it would be in accord with this court\u2019s long-established law. In other words, because this court agrees that the circuit judge erred, the general rule is to remand common law cases for a new trial unless the case has been fully litigated and should be dismissed. Hinton v. Bryant, 232 Ark. 688, 339 Ark. 621 (1960). As indicated in Hinton, owing to the error indicated, the case must be retried, and upon a new trial, any deficiency of proof must be supplied. Follett v. Jones, 252 Ark. 950, 481 S.W.2d 713 (1972).\nHowever, I seriously disagree with the majority when it decides that it is the trial court\u2019s duty to serve Mr. Ivy with a new notice, giving him a reasonable time to make a defense under Ark. Code Ann. \u00a7 16-10-108(c) (Repl. 1999). In making this statement, the majority agrees with Ms. Helen Walton\u2019s position at the prior contempt hearing that, after she filed a \u201cNotice of NonCompliance,\u201d alleging Mr. Ivy had failed to reimburse her, Ms. Walton had no further duty or burden in this matter. In short, the majority submits that, on remand for a civil contempt hearing, it is the trial court\u2019s obligation to \u201cnotice\u201d Mr. Ivy, giving him reasonable time to prepare a defense.\nFirst, it is all too clear that Ms. Walton may not merely file a pleading (notice or motion), alleging Mr. Ivy to be in civil contempt and claiming he has failed to reimburse her attorney\u2019s fees and costs without then requiring her later to present proof to support her claims. Stated differently, it is elementary that Ms. Walton must offer proof of Mr. Ivy\u2019s failure to pay; after doing so, Mr. Ivy must then show his inability to pay.\nThe majority court cites the case of Hickinbotham v. Williams, 228 Ark. 46, 305 S.W.2d 841 (1957), for the proposition that \u201ccontempt is a matter between the judge and the litigant, and not between the two opposing litigants.\u201d The Williams court, however, made this statement merely to recognize that \u201cthird parties\u201d who were not the original plaintiffs, had been prejudiced by the defendant\u2019s (Hickinbotham\u2019s) violation of the court\u2019s injunction, and that those parties could enforce the court\u2019s order, and not just the original plaintiffs. Even in Williams, the \u201cthird parties,\u201d who were not the original plaintiffs, petitioned the trial court for a show cause order requiring the defendant Hickinbotham to appear and show why he should not be held in contempt; at the hearing, those moving parties then presented testimony that Hickinbotham had violated the trial court\u2019s injunction.\nOf course, in this case, no third parties or other litigants are involved. Instead, it is only Ms. Walton who charged that Mr. Ivy had not reimbursed her attorney\u2019s fees and costs as previously ordered, and it is her initial burden to prove this charge. In a proceeding for indirect contempt, like the one here, it is not proper for the trial judge to initiate his own investigation, or act on the presumption that a party (Ivy) has violated a court order and then notify the party to appear to show cause why he should not be held in civil contempt. To condone such a procedure would be nothing short of adopting an inquisitorial system whereby the judge conducts the trial, determines what questions to ask, and defines the scope and the extent of the inquiry. That is not our system.\nBecause this case is civil in nature and the action is brought to assure Ms. Walton\u2019s attorney\u2019s fees and costs are reimbursed, she clearly has the burden to show that she has not been paid. Once Ms. Walton offers this proof and is subject to cross examination on this issue, Mr. Ivy must show his inability to pay. The proof required in a civil action for contempt is a preponderance of the evidence. See Henry v. Eberhard, 309 Ark. 336, 832 S.W.2d 467 (1992); Dennison v. Mobley, 257 Ark. 216, 515 S.W.2d 215 (1974).\nIn conclusion, I believe it is necessary to point out that some of Mr. Ivy\u2019s remarks at the scheduled hearing on March 7, 2002, bordered on contempt when he and the trial judge entered into an exchange of comments, some of which are set out in the majority opinion. If the trial judge had found Mr. Ivy in direct contempt based on disrespectful or insolent behavior, I likely would have affirmed such a finding. By the same token, it appears that some of the unfortunate and unnecessary colloquy between the court and Mr. Ivy could have been avoided if the court had held a formal hearing by swearing in the witnesses, taking testimony, and allowing the litigants to make their arguments. Here, no witnesses were sworn, nor did they testify. Instead, the hearing was reduced to unfounded and witty remarks which resulted in a test of wills between the judge and Mr. Ivy. While this court remands this case for further proceedings, hopefully, the rules of procedure, evidence, and the law will govern and bring needed structure to a very serious matter.\nFor the above reasons, I concur in part and dissent in part.\nImber, J., joins this opinion.\nArnold, C.J., not participating.\nIn response to my opinion, the majority has added a footnote suggesting it is undisputed from the record that, at the time of the appeal, Mr. Ivy had not paid Rule 11 sanctions. Of course, no formal hearing was conducted to establish this fact, but even if such fact was true, this case on remand involves civil contempt, which is a different proceeding, and, at this time, no one knows or has alleged that Mr. Ivy has not paid any or part of Ms. Walton\u2019s attorneys fee\u2019s and costs. Again, it is not the judge\u2019s role or burden to sua sponte issue orders alleging noncompliance and to assume the role of a party litigant in these matters.", "type": "concurring-in-part-and-dissenting-in-part", "author": "Tom Glaze, Justice," } ], "attorneys": [ "Doug Norwood and Susan Lusby, for petitioner.", "No response." ], "corrections": "", "head_matter": "Dan IVY v. The Honorable Tom J. KEITH, Judge\n02-283\n92 S.W.3d 671\nSupreme Court of Arkansas\nOpinion delivered December 12, 2002\nDoug Norwood and Susan Lusby, for petitioner.\nNo response." }, "file_name": "0269-01", "first_page_order": 295, "last_page_order": 315 }