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JAY MOODY

Circuit Judge
Third Division Sixth Judicial Circuit Kirby Miraglia Case Coordinator Kacie Glenn Trial Court Assistant Tammie Foreman Court Reporter 401 W Markham Suite 240 Little Rock, AR 72201 (501) 340-8426 Fax (501) 340-6038 D. Alan Watson Bailiff Deborah Bliss Law Clerk dbliss@pulaskimail.net

January 16, 2013 Mr. Larry Jegley 224 Spring Street Little Rock, AR 72201 Mr. E. Dion Wilson 423 Rightor Street Helena, AR 72342 Re: State of Arkansas v. James Valley; No. 60CV-12-5140 Dear Counselors: Before the Court is Petitioner Roger Norman’s request for a finding of contempt against James Valley for failing to appear and answer a subpoena issued by the Legislative Audit Committee. A hearing was held on January 8, 2013 where the parties called witnesses, gave arguments and were permitted to submit case law to the Court. Based on the evidence, arguments and law, this Court finds as follows: The validity of the subpoena The power of the Legislature to subpoena a witness to appear before it is a power established by statute and not a rule of the courts. Likewise, so is the procedure for reimbursing a witness for answering a subpoena from the Legislature. This authority is codified in Ark. Code Ann. §10-4-421, and it gives the Legislature the authority to subpoena Mr. Valley to appear and testify before it. The provision of this statute that provides for compensation to a witness for answering a subpoena is located in sub-section (c). It is undisputed that the subpoena served on Valley was not accompanied by a check for the daily witness fee and mileage but instead was accompanied by a form which was enclosed for the purpose of applying for payment after an appearance. Ark. Code Ann. §10-4-421 (c) provides, in part, that persons summoned to appear before the Legislature will “receive the same compensation as is received by persons serving as witnesses in

Letter to Larry Jegley and E. Dion Wilson January 16, 2013 Page two circuit courts of this state.” Rule 45 of the Arkansas Rules of Civil Procedure requires that “the subpoena must be accompanied by a tender of a witness fee and mileage.” The threshold question for this Court to determine is whether Ark. Code Ann. §104-421 (c) requires that a legislative subpoena comply with all of the requirements of Rule 45 or if the statute only requires that the amount of the compensation be equal to that set forth in Rule 45 and can be paid to a witness after his appearance. In other words, this Court must determine whether the failure of the Legislature to send a check with its subpoena invalidates the subpoena. The rules of statutory interpretation require me to read statutes according to their plain language. I am, therefore, compelled to find that the failure of the Legislature to prepay Mr. Valley a witness fee and mileage is not fatal to the subpoena’s validity. Had the Legislature chosen to impose the same requirements contained in Rule 45 on legislative subpoenas, they could have simply written the statute to say “the same compensation and payment in the same manner…” or “in accordance with Rule 45” or any similar language. Since the Legislature did not include such language in the statute, the rules of interpretation require me to assume that they meant to omit it. I, therefore, find the subpoena in question to be valid. Question of contempt The undisputed testimony at trial established that Mr. Valley had two communications with Frank Arey, counsel for the audit committee, following his receipt of the subpoena. These were the only communications Valley had with the Committee. The first was shortly after receipt of the subpoena to inquire as to the nature of the hearing. The second communication was made the day before the hearing and consisted of Mr. Valley leaving a voice message that he did not plan to attend the hearing the following day. Mr. Valley testified at the hearing that the reason he did not appear was because he had other court business in Helena. The Court finds that Mr. Valley’s reasons for failing to answer the subpoena do not amount to good cause. The Court further finds that Mr. Valley is guilty of criminal contempt for failing to appear and answer a valid legislative subpoena. Mr. Valley is fined $250 for his contempt. Mr. Jegley, please prepare the order.

Cordially,

Judge Jay Moody