Fitzhugh v. State

• Decision Date: 05 July 1988
• Docket Number: No. 88-41,88-41
• Citation: 296 Ark. 137,752 S.W.2d 275
• Parties: B. Dewey FITZHUGH, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 275

752 S.W.2d 275

296 Ark. 137

B. Dewey FITZHUGH, Appellant, v. STATE of Arkansas, Appellee.

No. 88-41.

Supreme Court of Arkansas.

July 5, 1988.

B. Dewey Fitzhugh, Richard Adkisson, Little Rock, for appellant.

Steve Clark, Atty. Gen., Little Rock, for appellee.

DUDLEY, Justice.

The issue in this appeal is whether the trial court violated appellant's right to due process in a contempt proceeding. We hold the conviction for contempt violated the Due Process Clause of the Fourteenth Amendment.

Since the sufficiency of the evidence is not questioned, we will state the facts in an abbreviated form. Appellant Fitzhugh, an attorney, represented his client in a complicated lawsuit and in some subsequent garnishment proceedings. Weeks later, one of the parties asked for a hearing on a motion to require appellant's client to pay some money into the registry of the court. The appellant went to court for a hearing on that petition. At the end of the hearing the trial judge announced that some of the appellant's earlier actions had been unethical and constituted a fraud on the court. He found appellant guilty of contempt and assessed a fine of $500.00. The appellant had never received notice that he was charged with contempt.

The first issue is whether the contempt proceeding was a criminal proceeding or a civil proceeding. The critical features which determine the nature of the proceeding are (1) the substance of the proceeding and (2) the character of the relief.

The purpose of a criminal contempt proceeding is that it is brought to preserve the power and vindicate the dignity of the court and to punish for disobedience of its order. A civil contempt proceeding is instituted to preserve and enforce the rights of private parties to suits and to compel obedience to orders and decrees made for the benefit of those parties. Dennison v. Mobley, 257 Ark. 216, 515 S.W.2d 215 (1974); see also Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797 (1911). However, the substantive difference between civil and criminal contempt often becomes blurred. The character of the relief, rather than the trial court's characterization of the substantive proceeding, becomes the critical factor in determining the nature of the proceeding for due process purposes. The Supreme Court of the United States has clearly set out the distinction between the types of relief:

"If it is for civil contempt the punishment is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court." Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441 [31 S.Ct. 492, 498, 55 L.Ed. 797] (1911). The character of the relief imposed is thus ascertainable by applying a few straightforward rules. If the relief provided is a sentence of imprisonment, it is remedial if "the defendant stands committed unless and until he performs the affirmative act required by the court's order," and is punitive if "the sentence is limited to imprisonment for a definite period." Id., at 442 . If the relief provided is a fine, it is remedial when it is paid to the complainant, and punitive when it is paid to the court, though a fine that would be payable to the court is also remedial when the defendant can avoid paying the fine simply by performing the affirmative act required by the court's order.

* * *

The distinction between relief that is civil in nature and relief that is criminal in nature has been repeated and followed in many cases. An unconditional penalty is criminal in nature because it is "solely and exclusively punitive in character." Penfield Co. v. SEC, 330 U.S. 585, 593 [67 S.Ct. 918, 922, 91 L.Ed. 1117] (1947). A conditional penalty, by contrast, is civil because it is specifically designed to compel the doing of some act. "One who is fined, unless by a day certain he [does the act ordered], has it in his power to avoid any penalty. And those who are imprisoned until they obey the order, 'carry the keys of their prison in their own pockets.' " Id., at 590 , quoting In re Nevitt, 117 F. 448, 461 (CA8 1902).

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