Attorney-at-Law

“IT’S AN ORDER, NOT A SUGGESTION”

In Uncategorized on 11/20/2020 at 14:57

No, I didn’t hear that in the Army; the phrase was accompanied neither by colorful metaphor nor deleted expletive. It was in a courtroom in Southern District Bankruptcy Court twenty-plus years ago, and fortunately not directed at me. The late Adlai Stevenson Hardin, BJ, thus admonished my co-counsel, for what dereliction I recall not, but such a rebuke from a courtly jurist sent a shockwave that must have been felt on Quarropas Street. I saw our case settling gently in the water, and looked around for a lifeboat.

But Ch J Maurice B. (“Mighty Mo’) Foley is much gentler than the late BJ Hardin. If a litigant is unhappy with his adversary’s proposed order, even without stating grounds sufficient to be mentioned in denying the order, Ch J Mighty Mo will withhold Tax Court’s mighty hand and outstretched arm.

Here’s Atm Shafiqul Khalid, Docket No. 13967-19W, filed 11/20/20.

IRS wanted the standard Rule 103 protective order a year ago, but Atm opposed it. Back in February, “…respondent proposed certain revisions to the protective order to address petitioner’s concerns. By Reply to Order… petitioner indicated that he still does not agree with the proposed protective order.” Order, at p. 1.

As I don’t know why Atm objects, I can’t comment. The standard Rule 103 has issued without objection in some hundreds of cases, with no ill effects. The last outright denial I can recall is Judge Laro nixing a couple pizzaristi (hi, Judge Holmes) six-plus years ago; see my blogpost “Do You Want to Know a Secret?” 5/1/14. But in that case, at least, there was an articulable and legally-sufficient reason.

But Atm don’t need no articulable and legally-sufficient reason, or at least not one worthy of mention.  

“As petitioner has not agreed to abide by the proposed protective order and his agreement is essential to assure his compliance with any protective order entered in this case, we will deny respondent’s motion.” Order, at p. 1.

Perhaps I’m growing old, or the legal system in which I’ve practiced these last fifty-three (count ’em, fifty-three; and, trust me, I have counted them) years has changed beyond my poor power to add or detract, or even comprehend.

But I thought a duly-designated judge of a court of competent jurisdiction had the power to issue an order in a case or controversy properly before him or her that was an enforceable mandate to all persons with notice thereof, whether any or all of such persons liked or didn’t like it. And that there existed something called “contempt” for those who, whether liking or disliking said order, didn’t obey it.

Perhaps Dawson’s Creek is submerging more than a website.

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