Comment: The Collateral Bar Rule and Rule 26 Protective Orders: Overprotection of Judicial Discretion
Fall, 2003
35 Ariz. St. L.J. 1029
Author
Sean P. McBride+
Excerpt
I. Introduction
The role of an independent and efficacious judiciary is essential to our constitutional system of government. For the judiciary to be an effective and significant branch of government, judges must have the power to enforce court orders. Without such power, the judiciary would be merely an advisory body. It would fail in its essential purpose. As it exists today, the judiciary does indeed have great power to enforce its orders by holding parties in contempt when those orders are ignored or otherwise violated.
The judiciary's contempt power has become so essential to the proper and orderly administration of justice in our system that parties are prohibited from violating even unconstitutional orders.n1 Disobedience to an unconstitutional order is not excused by the fact that the order was invalid. This principle is known as the collateral bar rule. This rule prevents a party who has violated an injunction or other court order from asserting the invalidity of that order as a defense to contempt of court. n2 While this rule may seem extreme, courts have justified it as necessary for our "system of orderly and efficient adjudication."n3 The concern is that, without the rule, an individual who thinks an order is invalid might violate the order and bypass the appropriate appellate process.
A judge's contempt authority is extremely broad. When a judge finds an individual to be in contempt, he "combines the roles of grand jury, prosecutor, and judge."n4 He is acting at the height ...
