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Comments on Court Orders

Comments on Court Orders
April 10, 2017

Returning to my theme of seemingly obvious legal advice that bears mentioning, I want to emphasize the need to comply with court orders. When a court orders you to do something or not to do something, about 99.9% of the time you must comply. Again, this seems very obvious, perhaps insultingly obvious—yet people continue to run afoul of basic court orders.

In Maine recently, two different stories related to disregarded court orders hit the news. In one, a judge issued a gag order, essentially an order not to speak or write about a subject, at a hearing in Portland. The exact subject matter is not relevant here, but, importantly, media members were present because it was a criminal case in which the defendant was a lawyer. The court instructed everyone at the hearing, in open court, not to divulge any information from the day’s proceedings while it decided a legal argument about potential prejudice to the defendant’s interests. Granted, this was a blatant case of something called prior restraint on the press, and as soon as the order became public knowledge critics howled about its unconstitutional nature. (Well-established Supreme Court precedents would apply to make that court order a violation of the First Amendment.) The judge rescinded the order the next day and apologized for his error. However, a reporter from the Portland Press Herald had already disregarded the gag order, reporting on the forbidden content and thereby placing himself in contempt of court in a very public manner. The court never found the reporter in contempt or charged him with anything, but he could have found himself in serious trouble. He was lucky, because (as first-year law students learn), the proper way to deal with an allegedly unconstitutional court order is to challenge it in court—to do otherwise on the assumption that you will have a good defense later is extremely risky, and often goes badly for the person who has violated the order. The Rev. Martin Luther King and other protesters once defied an injunction by participating in a civil rights march in Alabama, ended up in jail, and after four years and a 5-4 vote in the U.S. Supreme Court found they could not get forgiveness for defying the state court’s order—so, even if you are participating in a civil rights march in the South during Jim Crow, you may have no legal defense for failure to comply with a court order, no matter how unjust it seems.

Ironically, the same person who was the defendant in that Maine criminal case violated a court order himself shortly after this incident (according to news reports). Aware that he had been ordered not to contact his children, he allegedly went to their elementary school (of which your humble author is an alumnus) to see them and found himself in handcuffs. This is a lawyer, mind you, and, thus, he really knew better. The same principle applies to child support orders, fines, stays of sentences, probation conditions, subpoenas, summonses, driver’s license suspensions, and so on—disobey at your own risk and understand that you probably have no legal defense if you are caught, because a legal doctrine called the collateral bar rule applies.

I have seen numerous defendants in jail for violating bail conditions, numerous convicted criminals in jail for failing to abide by probation conditions, and a client who was hours away from a jail sentence for failing to appear at her alternative sentencing program. Each of these individuals was in clear violation of a court order, and all of them had to deal with negative consequences. To paraphrase the Supreme Court’s decision in the case involving the Rev. King, one cannot “bypass orderly judicial review” of a contested court order and expect to achieve forgiveness later.

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