Can I ignore or disobey a court order?
That, I thought, was a rhetorical question. A question for which the answer was self-evident. Perhaps it’s a question for which the right answer is self-evident and the wrong answer will get you in some serious trouble. Like, Honey, don’t you think this dress makes me look fat?
Apparently, after nearly 40 years of practicing law and time as a circuit court judge, I was mistaken. According to the Attorney General’s report on violations of the John Doe secrecy orders, some senior state and county officials, often themselves lawyers, treated the unequivocal State Supreme Court direction and prior circuit court orders to halt investigations, halt use of documents, to collect and file materials and to notify all affected parties as mere “suggestions.” Those individuals, according to the Attorney General’s recent report, not only failed to comply with the Supreme Court’s explicit directive and the prior directives of other courts, they openly defied it.
Perhaps in the hyper-political cloud now enveloping the Capitol the sight-lines from the former GAB to the Wisconsin Supreme Court were obscured. But, such behavior would never, and in mean NEVER, be allowed to go unpunished in any court before which I appeared.
Indeed, my recent comments to even the most liberal Madison lawyer, “Can you imagine what Judge Shabaz would have done to these folks?” resulted in peals of laughter. They would be facing personal fines, potential jail time and more. Respect for a court is not optional.
All this is made even worse by other facts disclosed by the Attorney General’s investigation. According to the report, the parties failed to tell the courts that there were more records, from even more people, related to the investigation than those disclosed to the Wisconsin Supreme Court. State Senator Leah Vukmir’s private communications with her daughter were a highlight, but apparently there were even more (and more likely not disclosed in the report).
So, here’s the problem that non-lawyers may not recognize. When the other side in litigation asks you for documents or asks for an answer to a question in discovery, the attorney often hems and haws, parses words and generally tries to avoid providing what is asked for. It’s semantic gymnastic gamesmanship. Courts admonish the lawyers to cut it out, but a certain amount of pushing and shoving, as on the basketball court, is allowed.
BUT, when the court asks for something or when the court demands something by way of an order, the games END. And here again, I mean END! Wow-be to the lawyer who fails to give the court the respect its order demands. If the order is not clear, every lawyer knows to ask the court to clarify. You do not assume the reading most favorable to your client. Or, if you do make that assumption, and you are caught, the consequences for you as a lawyer are that the court will never again trust you. The consequences for your clients (the one then before that court and later clients as well) are, once the court distrusts you, dire.
The Supreme Court of Wisconsin, and other courts as well, have been disrespected on a level never before seen. The Supreme Court and every other court involved must now act decisively and unequivocally with all their powers against any and every individual involved. Anything less would be a travesty.
Why do I call this a “travesty?” Is the use of the term hyperbole? No, it is an understatement.
Every day, in every court in this state, judges make orders and demand compliance. From small claims cases to murder trials, and every case in between, those orders must be followed. If, in the John Doe probe, a gross failure of compliance by state officials and employees is excused (and failure to punish severely is the same as “excused”) then why should anyone comply with court orders? Do we have two separate systems of justice? If you are powerful enough you are excused? If the publicity is enough, the act is forgiven? If the case has gone on for a long time we just look the other way?
As is often said when things in a courtroom are obvious, “This is not a close case.” This is a case of gross failure to comply with a Supreme Court order and a gross failure to comply with other court orders as well. This is a case of gross failure to disclose essential matters to the court by attorneys and by the parties.
We shall see if the sordid tale of this ‘weaponization’ of government agencies goes unpunished. Many are watching to see if the behavior that would not be tolerated by any court before now is now excused. We shall see.