Arkansas Department of Human Services v. Dowdy/Dissent Womack
SHAWN A. WOMACK, Justice, dissenting. Courts in Arkansas possess a broad contempt power to facilitate the enforcement of orders, maintenance of dignity, and preservation of authority. While statutes offer guidance in defining offending acts and outlining appropriate punishments, the contempt power is ultimately inherent to the court. It is precisely because of the contempt power's broad scope, however, that this court must take seriously its duty to police whether contempt penalties imposed are "supported by substantial evidence and reasonable inferences therefrom." See, e.g., Perroni v. State, 358 Ark. 17, 25, 186 S.W.3d 206, 211 (2004). The majority's expansive view of contempt power here, however, opens the door for courts to use that power outside of its traditional role. Instead of maintaining the authority and dignity of the court, the power could be used to micromanage case presentation decisions that have historically been made by the parties and their attorneys. While I support a broad interpretation of the contempt power, I am concerned that this new expansion may lead to abuse. In finding contempt in this case, the circuit court made unreasonable inferences based on thin evidence; this court should reverse. I therefore must respectfully dissent.
At the most basic level, the alleged contemptuous act here is that Tony Huffman, an attorney with the Arkansas Department of Human Services (DHS), and Erica Eneks, a DHS caseworker, "colluded"—to use the loaded language of the circuit court—to have Eneks absent from the courtroom during a hearing in a dependency-neglect case. No one contends that Eneks's presence was required by law or by court order, nor had she been subpoenaed by any party. The majority also concedes that Eneks's presence was not required by court rule (choosing to disregard some ill-founded comments by the circuit court indicating that the court below believed the contrary). No one disputes that Lisa Jenson, DHS's planned witness for the initial hearing, was present and prepared to testify about DHS's ultimate recommendation in the case. It is further undisputed that when asked about Eneks's absence in the initial hearing, Mr. Huffman admitted that he had arranged for Eneks to leave. Stripped to the objective facts available at the end of the initial hearing, then, the circuit court was left with the bare observations that Huffman and Eneks conspired to do something they were allowed to do and then Huffman had the audacity to tell the truth about it. It was on this basis that the circuit court notified Huffman that he and Eneks would be subject to a later contempt hearing. Notably, even at this initial hearing, the circuit court had apparently already decided that "collusive" conduct indicative of "some sort of deceit" had occurred and that it was "obvious that what [Huffman] did was improper."
At the contempt hearing, the circuit court introduced into evidence security-camera footage that did nothing more than corroborate that Huffman had dismissed Eneks from the courtroom for a hearing in which she was not slated to testify. This is, of course, the action to which Huffman had already admitted. The closest any of the testimony at the contempt hearing came to confirming the circuit court's suspicion of ill intent was Jenson's affirmative response to the circuit court's question about whether Eneks "might have had a different opinion" than the agency's ultimate recommendation at some stage in the case. Even this equivocal support was undercut by Eneks's own unequivocal testimony that she had "not recommended anything that contradicted the opinion of the Department in this case."
I am mindful of the fact that circuit courts are better positioned than this court to assess the litigants and facts before them; that is why this court’s standards of review on most discretionary issues—applying the rules of contempt among them—are quite deferential. If our review is to have any teeth, however, I cannot conclude that the circuit court's actions in this case were based on substantial evidence or reasonable inferences. For evidence to be substantial, it must "pass beyond suspicion or conjecture." Thompson v. State, 2016 Ark. 383, at 6, 503 S.W.3d 62, 66. The majority concludes that the circuit court satisfied this standard, seemingly crediting the leap of logic expressed by the circuit court at the close of the contempt hearing, that "Ms. Eneks had an opinion either currently or in the past that was opposite to that taken by Mr. Huffman or the department as to placement." Simply put, the evidence supporting that conclusion is thin, Eneks's own testimony contradicts it, and even assuming it were true, there is no law, rule, or norm that would support the idea that criminal contempt is the proper tool with which circuit courts should regulate the presence or absence of uncalled potential witnesses.
I respectfully dissent.