Can an Arkansas district judge issue a no-contact order at a bond hearing before the defendant is arraigned, and what penalty applies if it's violated?

Plain-English summary

Benton County Prosecutor Nathan Smith asked the AG about bond hearings held before charges are filed or a plea is entered. A district court may issue a no-contact order at such a hearing if justified. Smith asked whether that order falls under Ark. Code Ann. § 16-85-714 and what penalty applies to a violation before arraignment.

The AG split the question into three answers:

1. Section 16-85-714(a) orders must be issued at or after arraignment. The statute defines a no-contact order as "an order issued by a court to a defendant at or after arraignment on charges" prohibiting contact with a person or restricting proximity to the person's home or workplace. "Arraignment" is the formal reading of charges and entry of a plea (Ark. Code Ann. § 16-85-701). A judge cannot issue a Section 16-85-714(a) order before the defendant has been formally charged.

2. A pre-arraignment violation is criminal contempt, not a Class A misdemeanor. Section 16-85-714(d) applies only to violations of orders "issued under this section." Because the section defines its own scope as post-arraignment, pre-arraignment orders fall outside it. Pre-arraignment orders are enforceable as criminal contempt under Ark. Code Ann. § 16-10-108(a)(3), punishable as a Class C misdemeanor (up to 30 days under the opinion's discussion).

3. A pre-arraignment no-contact order is not an "other condition of release." Section 16-85-714(b)(1) says the court may "issue a no contact order under this section in addition to any other condition of release from custody." That language treats the no-contact order as separate from the "other conditions." It does not reclassify a pre-arraignment order as a Section 16-85-714(a) order.

The practical workaround. Pre-arraignment no-contact orders are independently authorized by other rules, particularly Ark. R. Crim. P. 9.3 (governing release-condition orders to prevent witness intimidation, dangerous-weapon possession, or unlawful interference with the administration of justice) and Ark. Sup. Ct. Admin. Order 18 § 6(b)(5)(A)(iv) (state district courts conducting pretrial-release inquiries). So courts can keep doing what Smith described. The orders just carry contempt penalties rather than the heavier statutory misdemeanor penalty until the defendant is arraigned. After arraignment, the court can issue a separate Section 16-85-714(a) order, which is then enforceable as a Class A misdemeanor.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Section 16-85-714(a) (no-contact orders):

[A] "no contact order" is an order issued by a court to a defendant at or after arraignment on charges that prohibits the defendant from contacting directly or indirectly a person in any manner or from being within a certain distance of the person's home or place of employment.

Section 16-85-714(b)(1):

A court may issue a no contact order under this section in addition to any other condition of release from custody that is imposed by the court....

Section 16-85-714(d):

Upon conviction, violation of a no contact order issued under this section is a Class A misdemeanor.

§ 16-85-701 (arraignment):

Arraignment is "the reading of the indictment to the defendant and the asking of him or her if he or she pleads guilty or not guilty to the indictment."

§ 16-85-401 (indictment):

Indictment is "an accusation in writing, found and presented by a grand jury to the court in which they are impaneled, charging a person with the commission of a public offense."

Pre-arraignment no-contact authority. Ark. Sup. Ct. Admin. Order 18 § 6(b)(5)(A)(iv) gives state district courts authority to "[c]onduct a first appearance ... ; conduct a pretrial release inquiry ... ; or release a defendant from custody." Ark. R. Crim. P. 9.3 lets the court enter an order at this stage prohibiting:

• approaching or communicating with particular persons;
• going to certain geographic areas or premises;
• possessing a dangerous weapon, engaging in described activities, or using intoxicants;
• requiring regular reporting to a court officer.

Criminal contempt. § 16-10-108(a)(3) authorizes courts to "punish, as for criminal contempt, persons guilty of ... [w]illful disobedience of any process or order lawfully issued or made by it." Under § 16-10-108(b)(1), criminal contempt is a Class C misdemeanor, which the opinion says carries up to 30 days.

The AG's reasoning

Plain statutory text. Smith's question turned on construing § 16-85-714(a)'s phrase "at or after arraignment on charges." The AG applied the cardinal rule of statutory construction: read the statute "just as it reads" (Brock v. Townsell, 2009 Ark. 224). Each word must be given meaning. "Arraignment on charges" requires charges to exist. Charges exist only after the prosecutor has filed an indictment, information, or other charging instrument. So a Section 16-85-714(a) order cannot precede that filing.

Why "context otherwise requires" still produces the same answer. § 16-85-401 defines indictment as a grand-jury document. The AG treated this as a context where § 16-85-401's "context otherwise requires" clause permits a broader reading of "indictment" as "an accusation in writing ... presented ... to the court ... charging a person with the commission of a public offense." Even with this broader reading, an arraignment requires that an accusation in writing exist, which means the defendant must be formally charged. Pre-arraignment bond hearings do not satisfy that condition.

The "issued under this section" phrase carries the load. Section 16-85-714(d) penalizes violations of orders "issued under this section." The AG used the cardinal rule again: every word must have effect (Sykes v. Williams, 373 Ark. 236 (2008)). The phrase "issued under this section" would be "void, superfluous, or insignificant" if it covered all orders, regardless of when issued. The AG read it as a deliberate limitation: only post-arraignment Section 16-85-714(a) orders carry the Class A misdemeanor penalty.

Criminal contempt fills the gap. A pre-arraignment no-contact order issued under Rule 9.3 or Admin. Order 18 is "a valid order of [the] court" that the defendant has notice of. Willful violation triggers § 16-10-108(a)(3) contempt power. Kilman v. Kennard, 2011 Ark. App. 454 (2011), confirms that criminal contempt protects "the power of the court ... and punishes those who disobey its orders." The penalty is a Class C misdemeanor, rather than the Class A misdemeanor for violating an order issued under § 16-85-714.

Reading subsection (b)(1) coherently. Subsection (b)(1) lets the court issue a Section 16-85-714 order "in addition to any other condition of release from custody." The AG read the "in addition to" language as treating no-contact orders separately from generic release conditions, rather than reclassifying every release condition as a Section 16-85-714 order. So a pre-arraignment no-contact order remains a release condition under Rule 9.3, not a Section 16-85-714 order, and carries the contempt penalty rather than the misdemeanor penalty.

The practical conclusion. Smith was effectively told: keep issuing pre-arraignment no-contact orders. They are valid and enforceable. Just understand that until arraignment, the only enforcement penalty is contempt. Once the defendant is arraigned, the court can issue a separate Section 16-85-714(a) order with the heavier Class A misdemeanor penalty.

Common questions

Can a district court issue a no-contact order before arraignment? Yes. The AG said other court rules and orders authorize pre-arraignment orders. Such an order is outside § 16-85-714(a), which requires an order issued at or after arraignment.

What happens if a defendant violates the earlier order? The AG said a willful violation of a valid pre-arraignment order can be punished as criminal contempt, a Class C misdemeanor. She said the Class A misdemeanor under § 16-85-714(d) does not apply to that earlier order.

Does § 16-85-714(b)(1) make a pre-arraignment order an "other condition of release" under the statute? No. The AG read that subsection as allowing an order under § 16-85-714 in addition to other release conditions. It did not bring a pre-arraignment order within the section.

Can the court issue a new order after arraignment?
Yes. The AG said nothing prevented a court from issuing a separate order under § 16-85-714(a) at or after arraignment. A violation of such an order falls under the section's Class A misdemeanor provision.

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STAT E O F ARKAN SAS
ATTO RN EY G EN ER.AL
LES LI E RUTL EDGE

Opinion No. 2017-064

August 9, 2017

The Honorable Nathan Smith
Prosecuting Attorney
Nineteenth Judicial District West
Benton County Courthouse
100 Northeast "A" Street
Bentonville, AR 72712

Dear Mr. Smith:

I am writing in response to your request for an opinion regarding no-contact orders issued under Ark. Code Ann.§ 16-85-714. You explain that defendants in Benton County routinely appear for bond hearings within 48 hours of arrest. At these hearings, the district court 1 will set the amount of bond if a defendant is to be released, and will issue a no-contact order if one is justified. The bond hearings do not involve the filing of charges or the entry of a plea. Rather, the court sets a subsequent date for each defendant's arraignment.

Your questions, which I have slightly paraphrased, are as follows:

1. Does Ark. Code Ann. § 16-85-714(a) allow a no-contact order to be issued before the defendant is arraigned, or must such an order be issued "at or after" arraignment?

2. If Ark. Code Ann. § 16-85-714(a) requires that a no-contact order be issued at or after arraignment, may a defendant who violates a no-contact order issued prior to arraignment be convicted under Ark. Code Ann. § 16-85-714( d) of a Class A misdemeanor, or would contempt of court be the proper penalty?

1
It is my understanding that your request focuses on preliminary appearances of criminal defendants in district court. Therefore, my analysis is limited to the authority of Arkansas district couits under those circumstances.

323 CENTE R STREE T . SU ITE 200 · LI TTLE ROCK. ARKAN SAS 7220 1 TELEP HONE (501) 682-2007 · FAX (501) 682-8084 ARKAN SAS AG .GOV

The Honorable Nathan Smith
Pros. Att'y, 19th Judicial Dist. West
Opinion No. 2017-064
Page 2

3. If Ark. Code Ann. § 16-85-714(a) requires that a no-contact order be issued at or after arraignment, can the court, before the defendant is arraigned, issue a no-contact order under Ark. Code Ann. § 16-85-714(b)(l) as an "other condition of release from custody"?

RESPONSE

It is my opinion, in response to your first question, that no-contact orders must be issued "at or after arraignment" if they are intended to come under the ambit of Ark. Code Ann. § 16-85-714(a). 2 Thus, in response to your second question, violating a no-contact order that was issued prior to arraignment would not result in a Class A misdemeanor. 3 Instead, such a violation would be punishable as contempt of court, a Class C misdemeanor. 4

With regard to your third question, I do not believe a no-contact order issued prior to arraignment qualifies as an "other condition of release. " 5 There is nevertheless ample authority for pre-arraignment no-contact orders. 6 And if a district court were to issue a pre-arraignment order, not only would it be enforceable as a Class C misdemeanor, but nothing would prevent the court from issuing a separate no- contact order at or after arraignment, punishable as a Class A misdemeanor.

2
See Ark. Code Ann. §§ 16-85-701 (Rep!. 2005) (defining arraignment as "the reading of the indictment to the defendant and the asking of him or her if he or she pleads guilty or not guilty."), 16-85-714(a) (Supp. 2015) (defining no-contact order as "an order issued by a court to a defendant at or after arraignment on charges."). 3 See Ark. Code Ann. § 16-85-714(d) (Supp. 2015) ("Upon conviction, violation of a no contact order issued under this section is a Class A misdemeanor."). 4 Ark. Code Ann. § 16-10-108(b)(1) (Rep!. 2010) ("Punishment for contempt is a Class C misdemeanor."). 5 Ark. Code Ann. § 16-85-714(b)(1) ("A court may issue a no contact order under this section in addition to any other condition of release from custody that is imposed by the court .... "). 6 See, e.g., Ark. Sup. Ct. Adm in. Order 18 § 6(b)(5)(A)(iv) (stating that district courts are empowered to "[c]onduct a first appearance ... ; conduct a pretrial release inquiry ... ; or release a defendant from custody.").

The Honorable Nathan Smith
Pros. Att'y, 19th Judicial Dist. West
Opinion No. 2017-064
Page 3

DISCUSSION

Question 1: Does Ark. Code Ann.§ 16-85-714(a) allow a no-contact order to be issued before the defendant is arraigned, or must such an order be issued "at or after" arraignment? In my opinion, a court that intends to issue a no-contact order under Ark. Code Ann. § 16-85-714(a) must do so either at or after the defendant's arraignment. A no-contact order issued prior to arraignment is still enforceable, but violation of such an order would result in a Class C misdemeanor as opposed to a Class A misdemeanor.

Your question is essentially one of statutory interpretation, so the primary task is to "give effect to the intent of the General Assembly" by construing section 16-85- 714( a) "just as it reads." 7 And section 16-85-714(a) must be read in the context of similar laws governing pre-trial appearances in district court. 8 To the extent the statute "conveys a clear and definite meaning, there is no need to resort to the rules of statutory construction." 9

Section 16-85-714(a) provides that:
[A] 'no contact order' is an order issued by a court to a defendant at or after arraignment on charges that prohibits the defendant from contacting directly or indirectly a person in any manner or from being within a certain distance of the person's home or place of employment. 10

The statutory definition of a no-contact order as a directive issued "at or after arraignment" indicates that a court cannot issue an order under section 16-85-

7
Brock v. Townsell, 2009 Ark. 224, 9, 309 S.W.3d 179, 185-86 (2009) (internal citations omitted). 8 Green v. Mills, 339 Ark. 200, 205, 4 S.W.3d 493, 496 (1999) (internal citations omitted); accord Op. Att'y Gen. 2016-040 (noting that it is "well established that statutes must be read in context."). 9 Brock, 2009 Ark. at 9, 309 S.W.3d at 186 (noting that a court must "construe[] the statute so that no word is left void, superfluous, or insignificant," such that if possible, "meaning and effect are given to every word."). 10 Ark. Code Ann.§ 16-85-714(a) (emphasis added).

The Honorable Nathan Smith
Pros. Att'y, 19th Judicial Dist. West
Opinion No. 2017-064
Page 4

714(a) until the defendant has been formally charged. Closely related sections of the Arkansas Code confirm that arraignment-understood as recitation of the charges and receipt of the defendant's plea-is a prerequisite to issuance of a section 16-85-714(a) no-contact order. "[U]nless the context otherwise requires," an arraignment is "the reading of the indictment to the defendant and the asking of him or her if he or she pleads guilty or not guilty to the indictment." 11 "Indictment" is defined, "unless the context otherwise requires," as "an accusation in writing, found and presented by a grand jury to the court in which they are impaneled, charging a person with the commission of a public offense." 12

Because the preliminary bond hearings you reference do not involve a grand jury, I believe that defining an indictment simply as a written instrument apprising the court of a defendant's charges is apfropriate. That is, for purposes of section 16- 85-714(a), "context . .. requires" 1 an interpretation of "indictment" as "an accusation in writing, ... presented ... to the court ... , charging a person with the commission of a public offense." 14

Given that arraignment is coextensive with the "reading of the indictment ... and the asking of [the defendant] if he or she pleads guilty or not guilty to the indictment," 15 it necessarily follows that arraignment has not taken place until a court has read the indictment and heard the defendant's plea. Section 16-85- 714(a) itself describes arraignment as a proceeding "on charges," which further supports the conclusion that a no-contact order under the statute would be improper, or at least premature, if issued before the defendant is charged with a crime. Assigning the relevant statutes their plain and ordinary meaning, it is clear that a no-contact order under Ark. Code Ann. § 16-85-714(a) may only be issued "at or after" the defendant has been arraigned on charges.

Question 2: If Ark. Code Ann.§ 16-85-714(a) requires that a no-contact order be issued at or after arraignment, may a defendant who violates a no-contact order issued prior to arraignment be convicted under Ark. Code Ann. § 16-85-

11
Id at§ 16-85-701.
12
Ark. Code Ann.§ 16-85-401(Rep!.2015).

13 Id.

14 Id.

15
Ark. Code Ann.§ 16-85-701.

The Honorable Nathan Smith
Pros. Att'y, 19th Judicial Dist. West
Opinion No. 2017-064
Page 5

714(d) of a Class A misdemeanor, or would contempt of court be the proper penalty? In my opinion, the Class-A misdemeanor penalty at Ark. Code Ann. § 16-85- 714( d) applies only to violations of no-contact orders issued under Ark. Code Ann.
§ 16-85-714(a). And because a district court cannot issue a section 16-85-714(a) order until the defendant has been arraigned, I believe a defendant in violation of a no-contact order issued prior to arraignment would instead face contempt of court.

Along with reading each word according to its ordinary meaning, a cardinal rule of statutory interpretation is that "meaning and effect [be] given to every word in the statute if possible." 16 The statute pertinent to your second question states that "[ u]pon conviction, violation of a no contact order issued under this section is a Class A misdemeanor." 17 I have opined that a no-contact order under section 16- 85-714 cannot be issued until the defendant has entered his or her plea to formal charges. Considering every word of the subsection quoted here, I do not believe the Class-A misdemeanor penalty applies to no-contact orders issued prior to arraignment. To conclude otherwise would needlessly leave "void, superfluous, or insignificant" 18 the statutory phrase "issued under this section." 19 The General Assembly included this language in section 16-85-714( d) presumably to limit (not to make generally available) the Class-A misdemeanor penalty for violating no- contact orders.

If a defendant were to violate a no-contact order issued prior to arraignment, that defendant could be penalized for criminal contempt. Contempt results from a party's "willful disobedience of a valid order of a court."20 So long as the order is "clear as to what duties it imposes, and express in its commands," the issuing court can punish a party for failure to comply with its terms. 21 Thus, courts are 16 Sykes v. Williams, 373 Ark. 236, 240, 283 S.W.3d 209, 213 (2008) (internal citation omitted).
17
Ark. Code Ann.§ 16-85-714(d) (emphasis added).
18
Sykes, 373 Ark. at 240, 283 S.W.3d at 213.
19
Ark. Code Ann.§ 16-85-714(d).
2
°Kilman v. Kennard, 2011 Ark. App. 454, 7, 384 S.W.3d 647, 651 (2011). 21 Id. at 7, 384 S.W.3d at 652 (distinguishing between civil contempt, which "protects the rights of private parties by compelling compliance with orders of the court," and criminal contempt, which "preserves the power of the court ... and punishes those who disobey its orders.").

The Honorable Nathan Smith
Pros. Att'y, 19th Judicial Dist. West
Opinion No. 2017-064
Page 6

authorized by statute to "punish, as for criminal contempt, persons guilty of ...
[w ]illful disobedience of any process or order lawfully issued or made by it."22 Criminal contempt is punishable as a Class C misdemeanor, 23 which carries a sentence of up to 30 days. 24 A no-contact order issued by a district court before the defendant is arraigned likely would contain terms sufficiently "definite . . . , clear . . . , and express"25 to trigger criminal contempt for non-compliance. But because such an order could not be characterized as one issued "at or after arraignment on charges,"26 I do not believe non-compliance could be punished as a Class A misdemeanor under Ark. Code Ann. § 16-85-714( d).

I must caution that my response to your second question is limited to a discussion of the applicable legal principles. Assessing a penalty for violation of a no-contact order (and deciding whether the order was violated in the first place) are fact- intensive matters appropriate for the issuing court, the prosecution, and defense counsel. They are beyond the scope of my office's authority in responding to an opinion request. 27

Question 3: If Ark. Code Ann.§ 16-85-714(a) requires that a no-contact order be issued at or after arraignment, can the court, before the defendant is arraigned, issue a no-contact order under Ark. Code Ann. § 16-85-714(b)(l) as an "other condition of release from custody"? In my opinion, a no-contact order issued before arraignment is not an "other condition of release" under Ark. Code Ann. § 16-85-714(b )(1 ). Section 16-85- 714(b )( 1) states that the court may "issue a no contact order under this section in addition to any other condition of release from custody that is imposed by the court .... " 28 Reading the emphasized phrase in the context of the surrounding

22
Ark. Code Ann.§ 16-I0-108(a)(3).
23
Id. at§ 16-10-108(b)(l).
24
Ark. Code Ann.§ 5-4-40l(b)(3) (Rep!. 2013).
25
Kilman, 2011 Ark. App. at *7, 384 S.W.3d at 652. See also text accompanying note 34, infra.
26
Ark. Code Ann.§ 16-85-714(a).
27
Op. Att'y Gen. 2015-010 (stating that "factual inquiries ... are outside the scope of an opinion from this office."). 28 Ark. Code Ann. § l 6-85-7 l 4(b)(I) (emphasis added).

The Honorable Nathan Smith
Pros. Att'y, 19th Judicial Dist. West
Opinion No. 2017-064
Page 7

language, I believe the section is intended to authorize ( 1) issuance of a no-contact order "under this section," i.e., at or after the defendant's arraignment, and (2) imposition of "any other condition of release" that circumstances may justify. By describing "other conditions of release" as constraints imposed "in addition," section 16-85-714(b )( 1) treats a generic release "condition" separately from the more targeted no-contact order that a court may issue. 29 Given this distinction in terms, it would be illogical to construe section 16-85-714(b )(1) as allowing the court to impose a no-contact order as if it were an "other condition of release. " 30 I believe instead that the statute allows the court to issue a no-contact order "in addition to" (and regardless of) whatever "condition of release" may otherwise have been imposed on the defendant. In all events, the no-contact order in question would have to be one "under this section." And the court lacks authority under section 16-85-714(b)(l) to issue such an order before arraignment on charges.

I would note, however, that district courts have authority outside of Ark. Code Ann. § 16-85-701 et seq. to issue no-contact orders. In criminal matters, district courts may "conduct a pretrial release inquiry . . . or release a defendant from custody" 31 pending another appearance. A "pretrial release inquiry" can include the bond hearing you described by way of background. 32 At this proceeding, the district court may decide if "there exists a danger that the defendant will commit a serious crime or will seek to intimidate witnesses, or will otherwise unlawfully interfere with the orderly administration of justice" when the defendant is released

29
See id. at § 16-85-714(b)(3) (stating that a no-contact order may contain prohibitions "against the defendant's approaching or communicating with a particular person or class of persons, either through a third party or by telephone, electronic communication, or in writing; . . . against the defendant's going to certain described geographical areas or premises, ... against the defendant's possessing a dangerous weapon or engaging in certain described activities, including the ingestion of alcohol or certain drugs .... "). 30 See Sykes, 373 Ark. at 240, 283 S.W.3d at 213 (noting that courts will avoid statutory interpretations "lead[ing] to absurd consequences that are contrary to legislative intent."). 31 Ark. Sup. Ct. Admin. Order 18 § 6(b)(5)(A)(iv) ("In addition to the powers and duties of a district court under this administrative order, a state district court shall exercise additional power and authority as set out in this section."). 32 See Ark. R. Crim. P. 8.5(c)(ii) (During pretrial release inquiries, "[t]he prosecuting attorney should make recommendations to the judicial officer concerning . . . the amount and type of bail bond."); 9.2 ("Release on Money Bail").

The Honorable Nathan Smith
Pros. Att'y, 19th Judicial Dist. West
Opinion No. 2017-064
Page 8

on bond. 33 A court satisfied that the defendant is likely to engage in such behavior may:

[E]nter an order . . . prohibiting the defendant from approaching or communicating with particular persons or classes of persons . . . ; prohibiting the defendant from going to certain described geographical areas or premises; prohibiting the defendant from possessing any dangerous weapon, or engaging in certain described activities or indulging in intoxicating liquors or in certain drugs; requiring the defendant to report regularly to and remain under the supervision of an officer of the court. 34

Put differently, the district court is authorized to issue a no-contact order at a defendant's bond hearing-before arraignment on charges. Violation of a pre- arraignment order would result in a Class C misdemeanor. 35 But once charges are filed and the defendant has pied, nothing would preclude the court from entering a subsequent no-contact order under section 16-85-714(a), punishable as a Class A misdemeanor. 36

Sincerely,

~'~
Attorney General

33
Ark. R. Crim. P. 9.3 ("Prohibition of Wrongful Acts Pending Trial"); see also id. at 8.5(b)(viii) (authorizing the court to weigh "any facts indicating the possibility of violations of law if the defendant is released without restrictions."). 34 Id. at 9.3(a)-(d); accord Op. Att'y Gen. 95-357 (noting the requirement that "no contact orders
... be consistent with Rules 9.3 and 9.4 of the Arkansas Rules of Criminal Procedure .... "). 35 See text accompanying notes 20-26, supra.
36
Ark. Code Ann . § 16-85-714( d).