Right Back "In Facie Curiae"-A Statistical Analysis of Appellate Affirmance Rates in Court-Initiated Attorney-Contempt Proceedings

University of Memphis Law Review, The, Fall 2007 by Fox, Timothy Davis

ABSTRACT

I ran smack into the intricacies of the court's inherent contempt power during my first several months on the bench. A wellknown attorney in Arkansas double-booked himself for trial and simply did not show up in my court for a four-day criminal jury trial. I initiated contempt proceedings and, despite earnest efforts to learn and follow appropriate contempt procedure, the Arkansas Supreme Court only affirmed my contempt decision 4-3. It was not until I conducted the study research for this article, that I learned that court-initiated attorney-contempt cases in Arkansas have only an 18% affirmance rate.

The affirmance rate for the general appellate case population is in excess of 70%. The affirmance rate of the 932 court-initiated attorney-contempt cases included in this study is only about 32%. This article analyzes the difference in affirmance rates between jurisdictions, decades, types of punishment, and events underlying the contempt proceedings. The conclusion offers possible explanations for the extremely low court-initiated attorney-contempt affirmance rate for the study cases as compared to the general appellate case population.

I. INTRODUCTION

The inherent contempt power is an anomaly, absent from the quotidian judicial equation. There are, however, many legal principles and rules rarely encountered, but which the bench and bar are professionally trained and educated to address if necessary. The results of the contempt case study conducted in connection with this article establish that the appellate affirmance rate of court-initiated attorney-contempt cases is substantially lower tiian the general appellate case affirmance rate. The main purpose of this article is to analyze the study results. Secondary to the study analysis is a discussion of several possible explanations for the affirmance discrepancy. The reason for the dichotomy may simply be that inherent power does not endow inherent knowledge.

Anyone conducting more than a cursory review of contempt law will quickly realize that contempt cases present a maze composed of nuance and inflection, sometimes in form, and other times in substance. The issues generally addressed in contempt cases include: (1) deciding whether the contempt is direct, indirect, or hybrid; (2) deciding whether the contempt is civil, criminal, or sui generis; (3) and deciding whether a hearing is required or if a summary proceeding is acceptable. Contempt cases invoke many issues. For example, are summary proceedings defined the same in all jurisdictions? Does the use of the contempt power violate the constitutional rights guaranteed for all persons alleged to have committed criminal acts? And just how many hats can, or should, a judge wear in a single judicial proceeding?

My initial experience with the issues relevant to attorney-contempt proceedings occurred within the first few months of being elected to the bench.1 After researching cases at that time involving attorneys and contempt, I discovered that appellate courts make adjustments-some substantial and some small-in a very high percentage of attorney-contempt cases.

Substantial literature addresses the utilization of the contempt power against attorneys. The article titles indicate a generally negative tenor concerning both the existence and the application of the contempt power, with numerous recommendations in the articles for the abolition or curtailment of the power.2 Even with all of the verbiage to date, an important discussion has rarely been parsed. The absent discussion in the arena of contempt law is not how, nor when, but why. If use of the court's inherent power does not consistently accomplish the intended purpose, then why use the power? The two reasons most consistently advanced for employment of the contempt power, at least of the summary contempt power, are to preserve order in the courtroom and to prevent waste of administrative resources.3 Although explanations for the existence of the attorney-contempt affirmance rate discrepancy are discussed, the principal purpose of this article is to quantify and to compare the general appellate affirmance rates with the specific appellate affirmance rates of attorney-contempt appeals.

Following a review of the historical basis of the contempt power in Section II, Section III outlines the research methodology utilized in the attorney-contempt case study. Then Section IV explains how the data obtained for the study is broken into different categories to check for possible affirmance rate differences between the categories. Section V compares the study results to odier studies that reviewed general appellate affirmance rates. Section VI gives the reader some information concerning a few of the attorneys appearing more than once in the study cases. Finally, Section VII concludes by examining several possible explanations for the sizeable affirmance rate differential between all appellate cases and court-initiated attorney-contempt cases.

II. HISTORY OF THE INHERENT POWER