Bruce Earl Ward v. State of Arkansas

Cecil POYNER v. ARKANSAS CONTRACTORS LICENSING BOARD;

Bruce Earl WARD v. STATE of Arkansas

98-952; CR 98-657 ___ S.W.2d ___

Supreme Court of Arkansas

Opinion delivered January 14, 1999

1. Appeal & error -- matter remanded to allow trial court to settle record. -- Based upon the inability of a substitute court reporter to submit the record of the relevant hearing in a civil case, and based upon the representations by the reporter and the attorney for appellee licensing board that the hearing was limited to argument by counsel, the supreme court remanded the matter to allow counsel to prepare a statement of the evidence or proceedings and to allow the trial court to settle the record, pursuant to Ark. R. App. P.--Civ. 6(d) and (e).

2. Contempt -- order issued. -- Based upon the circumstances, the supreme court held that the substitute court reporter was in contempt for failing to comply in a timely manner with the command of the writs of certiorari issued in the civil and criminal cases at issue and for failure to appear before the supreme court as previously scheduled; the court sentenced the reporter to four days in jail, with credit for four days already served, and ordered her to file the transcript in the criminal case by a specified date.

Contempt Order issued.

Lyon, Emerson & Cone, for appellant Cecil Poyner.

No response.

Deborah R. Sallings, for appellant Bruce Earl Ward.

No response.

Per Curiam.

The procedural background in these matters is set forth in our per curiam orders issued on November 19, 1998. Poyner v. Arkansas Contractors Licensing Bd., 335 Ark. 260, ___ S.W.2d ___ (1998); Ward v. State, 335 Ark. 265, ___ S.W.2d ___ (1998). On December 11, 1998, a bench warrant was issued because Ms. Lené Collins-Sontag failed to appear before this court on December 10, 1998, as ordered by the per curiam orders issued on November 19, 1998. Poyner v. Arkansas Contractors Licensing Bd. & Ward v. State, 335 Ark. 379, ___ S.W.2d ___ (1998). Pursuant to the bench warrant issued on December 11, 1998, the State Police took custody of Ms. Collins-Sontag on December 17, 1998, and delivered her to the Pulaski County Detention Facility, where she was held until she appeared before this court on December 21, 1998, at 9:00 a.m. As a result of said appearance, Ms. Collins-Sontag was ordered to appear before this court on Wednesday, January 6, 1999, at 9:00 a.m., and the Pulaski County Sheriff's Department was directed to release Ms. Collins-Sontag upon the posting of a $500.00 bond.

Ms. Collins-Sontag, substitute court reporter for the Third and Seventh Divisions of Pulaski County Circuit Court, appeared with her counsel, Kenneth G. Fuchs, for the hearing before this court on January 6, 1999, to show cause why she should not be held in contempt for her failure to comply in a timely manner with the command of the writs of certiorari issued in both cases and for her failure to appear before this court as scheduled on December 10, 1998. Also present at the January 6 hearing was Ms. Vicki Pickering, attorney for the Arkansas Contractors Licensing Board.

During the hearing, Ms. Collins-Sontag entered pleas of guilty for her failure to comply with the writs of certiorari issued in both cases and for her failure to appear as previously scheduled. We accepted Ms. Collins-Sontag's guilty pleas. In mitigation of her contempt, Ms. Collins-Sontag advised the court that she failed to timely prepare and file the transcripts in the Poyner and Ward cases because of recent domestic problems. Specifically, she stated that due to her separation from her husband, she does not have access to her computer and has been unable to locate the original tape recording of the hearing in the Poyner case. Ms. Collins-Sontag also admitted that she was drinking alcohol excessively during the past several months. She represented to the court that she has been sober since her arrest on December 17, 1998. She further stated that she has no income at this time and that she and her teenage son are living with friends.

According to Ms. Collins-Sontag, the back-up tape recording of the hearing in the Poyner case is not audible. Both she and her attorney do not believe that audio enhancement of the tape recording is a viable option under the circumstances. Ms. Collins-Sontag represented to the court that no witnesses testified at the Poyner hearing. Ms. Pickering, attorney for the Arkansas Contractors Licensing Board, confirmed that no testimony was taken during the Poyner hearing and that the hearing was limited to argument by counsel regarding summary judgment. Ms. Pickering further stated that affidavits were submitted after the hearing.

With regard to the Ward case, Ms. Collins-Sontag assured the court that she had the disk containing the record of the relevant hearing, and that she could arrange for access to a computer in order to print the transcript and file it with the Supreme Court Clerk no later than Friday, January 8, 1999.

Based upon the inability of Ms. Collins-Sontag to submit the record of the relevant hearing in the Poyner case and based upon the representations by Ms. Pickering and Ms. Collins-Sontag that the hearing was limited to argument by counsel, we hereby remand this matter to the Pulaski County Circuit Court, Third Division, to allow counsel to prepare a statement of the evidence or proceedings and to allow the trial court to settle the record, pursuant to Ark. R. App. P.--Civ. 6(d) &(e).

Based upon the foregoing, we hold that Ms. Collins-Sontag is in contempt for failing to comply in a timely manner with thecommand of the writs of certiorari issued in the Ward and Poyner cases and for failure to appear before this court as scheduled on December 10, 1998. We sentence Ms. Collins-Sontag to four days in the Pulaski County jail, with credit for four days having already been served by her. We further order her to file the transcript in the Ward case with the Supreme Court Clerk no later than Monday, January 11, 1999.

The clerk is also directed to forward a copy of this per curiam order to the Board of Certified Court Reporter Examiners for any action it might deem necessary under its rules.