Ivy v. Keith

• Decision Date: 12 December 2002
• Docket Number: No. 02-283.,02-283.
• Parties: Dan IVY v. The Honorable Tom J. KEITH, Judge.
• Court: Arkansas Supreme Court

Page 671

92 S.W.3d 671

351 Ark. 269

Dan IVY v. The Honorable Tom J. KEITH, Judge.

No. 02-283.

Supreme Court of Arkansas.

December 12, 2002.

COPYRIGHT MATERIAL OMITTED

Doug Norwood and Susan Lusby, Rogers, for petitioner.

No response.

ROBERT L. BROWN, Justice.

Petitioner 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.¹ In the alternative, Mr. Ivy appeals Judge Keith's 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's order and granted Mr. Ivy's 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's brief in support of the petition.

The facts leading up to the Rule 11 sanctions are taken from Judge Keith's 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 "knowingly protected her reputation." On November 16, 2001, Judge Keith granted partial summary judgment in favor of Mrs. Walton on the punitive damages issue, finding that there was "not even a scintilla of evidence" supporting Mr. Ivy's allegations made on behalf of Otis.

Mr. Ivy refused to retract his claim on behalf of Otis, however, and subsequently, according to Judge Keith, "compounded the seriousness of the [Rule 11] violation by restating the allegation in an amended complaint and various other pleadings filed with the Court." On December 7, 2001, Judge Keith found that Mr. Ivy's allegations on behalf of Otis "were not made in good faith, but rather were imposed for an improper purpose" and, thus, violated Rule 11 of the Arkansas Rules of Civil Procedure. Judge Keith's order for Rule 11 sanctions imposed a $12,085.27 fine on Mr. Ivy which amount corresponded to opposing counsel's attorneys' fees and costs. The sanction was to be paid within thirty days. The Rule 11 order also stated: "The failure to pay this sanction within 30 days of the entry of this Order shall constitute contempt of court."

On 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, "That's — that's the Court's order, Mr. Ivy." Mr. Ivy then asked whether, if he was unable to pay the sanction, should he submit himself to go to jail. Judge Keith responded, "If you want — if you want to admit contempt of Court and go to jail, that's up to you."

On February 11, 2002, in an effort to settle with Mrs. Walton, Mr. Ivy sent a letter to Mrs. Walton's 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's counsel alerted Judge Keith that Mr. Ivy had made no payments on his fine and of Mr. Ivy's settlement offer, which counsel maintained he had no power to accept because it would violate the Judge's order.

On 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's Rule 11 order.

On 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.

The following colloquy then occurred: MR. IVY: It would be difficult for me to come up with $500 today, in fact I couldn't, but tomorrow I could have $20,000 in my pocket ... I have taken a vow of poverty when I became a minister —

THE COURT: I don't want to hear that. I agree with that old sage who says religion and patriotism become the last refuge of scoundrels. And I don't want to hear that. This is a civil courtroom and I don't want to hear that.

MR. IVY: Then I wish to object, your Honor.

THE COURT: Well, I don't care if you object.

MR. IVY: And I wish to proffer.

THE COURT: I — I don't care. You're — what your religious leanings or practices are is your business but it's not a part of this proceeding.

MR. IVY: Then God has no place in your courtroom, Your Honor?

THE COURT: What your religious practices are, Mr. Ivy, do not have any part in this proceeding. Now, you may continue, but — but I don't want — what you do in your religious practice is your business, it's not a part of this proceeding.

MR. IVY: Your Honor, if

THE COURT: Did I understand you to say that you agree that — that the appropriate step for the Court to take at this time is to incarcerate you?

MR. IVY: Your Honor, yes, Your Honor. I see no alternative to it. I have — I have no way to pay the Court. The other side, the richest woman in the world has the money —

THE COURT: I don't want — I don't want you engaging in that kind of language in this court. I'm sick and tired of you using this inflammatory language. You're no Robin Hood, you're no Friar Tuck and I don't want to — I don't want you playing the role in this courtroom.

MR. IVY: Your Honor, I consider myself to be a Robin Hood.

THE COURT: Well, you're no Robin Hood and you're certainly no Friar Tuck. Anything else you wish to say?

. . . .

MR. 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 — certain rights might kick in, might become criminal. But when an attorney tries to stand up for truth and justice —

THE COURT: That doesn't have anything to do with this. We've already addressed that issue. The Court has already found that all these allegations that you've made were — were without foundation, were frivolous, without merit. If you want to take that up on appeal — but that argument is closed.

MR. IVY: It's not closed pending new evidence I assume, Your Honor.

THE COURT: It's closed until — until — until some higher court says it's not closed. I've already ruled on that, we're not going to revisit it.

MR. 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 — I guess that's all a person can say.

You know, it is difficult for me to stand here and look around this courtroom when I realize that this courtroom — well, the renovations that the courthouse was paid for by Mrs. Walton. I mean $600,000.

THE COURT: Mr. Mr. Ivy, I am — I'm going to remand (sic) you. You better start addressing the issues ....

Now you can address the issue or you can sit down but I don't want to hear all this stuff — this Robin Hood stuff that you like to preach. That's not the issue.

MR. 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

THE COURT: Have you got any evidence to offer in support of your position?

MR. IVY: No, sir, Your Honor.

After a brief recess, Judge Keith issued his ruling from the bench:

THE COURT: ... The court finds that you [Mr. Ivy] have willfully disobeyed the Court's 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'll be remanded to the custody of the sheriff.

On 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's order. The motion to stay was granted by this court on March 25, 2002, and the matter was expedited.

I. Due Process

The first basis for Mr. Ivy's certiorari petition is an asserted violation of his right to due process of law, as afforded under the Arkansas and United States Constitutions.

A 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...