A scene that regularly plays out in my kitchen recently took center stage in a Dane County courtroom.
Parents who have survived the terrible twos (and threes, I hear) will know this act all too well: Your child refuses to do something, so you make an idle threat to see if you can bluff them into complying. It rarely, if ever, works, so you end up looking like a chump when your little one laughs, knowing full well mommy or daddy won’t really “give all their toys away” or “turn off the iPad forever.”
But such toothless threats are excusable from parents exhausted by their toddlers’ whining and refusal to eat anything other than mac ’n’ cheese.
Such failures to follow through are not tolerable, however, from judges.
That is what happened last month, when Dane County Circuit Judge John Markson failed to follow through on his threat of jail time for two pro se litigants who, along with a third plaintiff, have established a pattern of lawsuits and racked up more than $390,000 in judgments, sanctions and attorneys’ fees, most of which remain unpaid.
Four attorneys defending against the litigious duo of Rodney Rigsby and Quincy Neri asked Markson to break the cycle in a case that has continued even though the judge declared it over in April. In his frustrated plea to the judge at a Sept. 8 hearing, Timothy Barber, an attorney with Axley Brynelson LLP, Madison, and a defendant in the case, made it clear he did not take his request for jail time lightly.
“I have never asked for this before, but I really do not think this behavior is going to stop unless the court does so,” Barber said. “If we leave here today without that, I anticipate there’s going to be another motion filed in this case, and we’ll be right back here a third time.”
But Markson refused, even though he had threatened to impose jail time if Rigsby and Neri did not stop litigating the case, and, at a July 14 hearing said, “I have never seen anything approaching this level of continued harassment, abuse of the system and just general mischief in support of no reasonable goal.”
Expressing reservations about sending the pair to jail, Markson said he hoped a second contempt finding would be enough to dissuade them from continuing their tactics.
But why would it be? Orders to pay hundreds of thousands of dollars have not been enough to stop them, nor have previous contempt hearings during which the judge and defending attorneys railed against the duo.
After declining to impose the jail time, Markson said, “I hope we will not be back here again.”
That’s like a father saying “I hope tonight you’ll eat your vegetables,” while a toddler laughs, comfortable in the knowledge that dad will let her eat whatever she wants.
Just like many fathers, Markson needs to be the bad guy. He’ll be doing a favor for many people, including the four attorneys who still are fighting a case that should be over.
When she’s not chasing a 2-year-old, Caley Clinton is associate editor of Wisconsin Law Journal.