FROM THE PULASKI COUNTY CIRCUIT COURT, FIFTH DIVISION [NO.
60CV-17-442] HONORABLE WENDELL GRIFFEN, JUDGE.
Sterling and Richard Rosen, Office of Chief Counsel, for
De Liban, Legal Aid of Arkansas, for appellees.
A. WOMACK, Associate Justice.
Arkansas Department of Human Services (DHS) appeals the
circuit court's order holding the agency in contempt and
the temporary restraining order enjoining its emergency rule.
The primary question before us is whether the agency violated
the express terms of the circuit court's preliminary
injunction order by promulgating the emergency rule. We hold
that it did not and therefore reverse the order of contempt.
We further dismiss DHS's appeal of the temporary
restraining order as moot.
recitation of the factual history underlying this appeal can
be found in our first review of the case. See Ark.
Dep't of Human Servs. v. Ledgerwood, 2017 Ark. 308,
530 S.W.3d 336 (Ledgerwood I). In Ledgerwood
I, we upheld the circuit court's temporary
restraining order enjoining the 2015 ARChoices Medicaid
waiver rule as applied to the named Plaintiffs-Appellees. On
remand, the circuit court entered a permanent injunction
against the program in its entirety. DHS was permanently
enjoined from using the methodology embraced by that rule
"unless or until it was properly promulgated." Days
after the circuit court entered that order, DHS promulgated
an emergency rule utilizing the same methodology. The circuit
court entered a temporary restraining order against the rule
and held DHS in contempt of its permanent injunction order.
The primary basis for both orders was DHS's failure to
provide notice and an opportunity for public comment during
the adoption of the emergency rule. This appeal ensued.
contends it did not violate the express terms of the
permanent injunction order when adopting the emergency rule.
It therefore seeks reversal of the circuit court's order
holding the agency in contempt. Because we conclude the rule
was properly promulgated under the Administrative Procedure
Act's (APA) emergency rulemaking provision, we find DHS
did not violate the express terms of the circuit court's
order. We reverse the order of contempt.
threshold matter, we must first determine the character of
the contempt order. Contempt may be criminal or civil in
nature. See Johnson v. Johnson, 343 Ark. 186, 197,
33 S.W.3d 492, 499 (2000). Criminal contempt seeks to
preserve the power of the court, vindicate its dignity, and
punish those who disobey its orders. Id. Civil
contempt, on the other hand, is designed to protect the
rights of private parties by compelling compliance with
orders of the court made for the benefit of those parties.
See Ivy v. Keith, 351 Ark. 269, 280, 92 S.W.3d 671,
the line between civil and criminal contempt may blur at
times, the critical distinction lies in the character of
relief ordered by the court: "[C]riminal contempt
punishes while civil contempt
coerces." Id. (internal quotation
omitted) (emphasis in original). In other words, civil
contempt seeks only "to coerce compliance with the
court's order." Id., 92 S.W.3d at 678. It
carries with it a conditional penalty that may be purged once
the civil contemnor complies with the underlying order.
Id. Criminal contempt, by contrast, carries an
unconditional penalty that is punitive in nature and cannot
be purged. Id.
circuit court did not state whether it was holding DHS in
civil or criminal contempt. The record, however, reveals that
the circuit court sought to punish DHS's "willful
defiance" of its permanent injunction order by imposing
a number of sanctions upon the agency. The contempt order
required DHS to publish monthly updates relating to
assessments of beneficiaries under the ARChoices program. The
agency has been required to provide this information on its
website and to opposing counsel. It has also been required to
provide opposing counsel with monthly updates revealing the
identities of persons who have not been reassessed under the
program. DHS was not provided any avenue to purge itself of
these sanctions; instead, they were to continue indefinitely
until the circuit court ordered otherwise. Moreover, the
circuit court referred DHS's counsel of record, as well
as an agency attorney involved with the emergency rulemaking,
to the Committee for Professional Conduct. The unconditional,
unpurgeable penalties indicate that DHS was held in criminal
standard of review in a case of criminal contempt is well
settled: we view the record in the light most favorable to
the circuit court's decision and sustain that decision if
it is supported by substantial evidence. See James v.
Pulaski County Circuit Court, 2014 Ark. 305, at 4, 439
S.W.3d 19, 23. Substantial evidence is that of sufficient
force and character to compel a conclusion one way or
another, forcing the mind to pass beyond suspicion or
conjecture. Id. Where one is held in contempt for
failure or refusal to abide by the circuit court's order,
we will not look behind the order to determine its validity.
is no question that willful disobedience of a valid court
order is contumacious conduct. See, e.g.,
Johnson, 343 Ark. at 198, 33 S.W.3d at 499. But
before one can be held in contempt for violating a court
order, the order must be definite in its terms, clear as to
the duties it imposes, and its commands must be express
rather than implied. Id. When a party does all that
is expressly required under an order, it is error to hold it
in contempt. Id.
underlying permanent injunction order expressly barred DHS
"from using RUGs methodology unless or until it is
properly promulgated." DHS subsequently adopted an
emergency rule that utilized the methodology under the
process established by the APA. The circuit court held DHS in
contempt for violating its permanent injunction order because
the agency did not provide prior notice and opportunity for
public comment. The question is therefore whether the
emergency rulemaking violated the express orders of the
circuit court's permanent injunction.
promulgation process for agency rulemaking generally
requires, inter alia, a thirty-day notice period and
opportunity for comment prior to adopting a new rule.
See Ark. Code Ann. § 25-15-204 (Repl. 2017).
But that provision also contemplates emergent situations
requiring swift agency response; specifically, where the
agency finds that imminent peril to the public health,
safety, or welfare or compliance with a federal law or
regulation requires adoption of a rule upon less than thirty
days' notice. Ark. Code Ann. § 25-15-204(c). The
agency must provide a written statement providing the reasons
for that finding. Id. It may then proceed without