COUNTY OF FULTON, FULTON COUNTY BOARD OF ELECTIONS, STUART L. ULSH, IN HIS OFFICIAL CAPACITY AS COUNTY COMMISSIONER OF FULTON COUNTY AND IN HIS CAPACITY AS A RESIDENT, TAXPAYER AND ELECTOR IN FULTON COUNTY, AND RANDY H. BUNCH, IN HIS OFFICIAL CAPACITY AS COUNTY COMMISSIONER OF FULTON COUNTY AND IN HIS CAPACITY AS A RESIDENT, TAXPAYER AND ELECTOR OF FULTON COUNTY, Appellees v. SECRETARY OF THE COMMONWEALTH, Appellant
No. 3 MAP 2022
IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT
April 19, 2023
[J-46-2022]
TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.
SUBMITTED: October 21, 2022
OPINION
JUSTICE WECHT
DECIDED: April 19, 2023
During the pleading stage, the Secretary learned that Fulton County intended to allow another entity, Envoy Sage, LLC, to inspect the allegedly compromised equipment. The Secretary sought a protective order from the Commonwealth Court barring that inspection and any other third-party inspection during the litigation. The court denied relief. The Secretary appealed
After our preliminary review of the Secretary‘s application for sanctions, this Court appointed President Judge Renee Cohn Jubelirer of the Commonwealth Court as Special Master to make an evidentiary record and to provide proposed findings of fact, conclusions of law, and sanctions (if warranted) to aid in this Court‘s resolution of the allegations at issue. Notwithstanding a convoluted case, an expedited schedule, and the remarkable obstinacy of Fulton County and its counsel, the Special Master performed her task admirably. In her timely, painstaking “Report Containing Proposed Findings of Fact and Recommendations” (“Special Master‘s Report” or “SMR“), President Judge Cohn Jubelirer recommended that this Court impose several sanctions upon Fulton County, but did not impose sanctions upon the other Petitioner-Appellees or Thomas Carroll, the attorney who represented them during the relevant period.
There can be no orderly and effective administration of justice if parties to litigation do not comply with court orders. Our close review makes clear that Fulton County willfully violated an order of this Court. As well, we find that Fulton County and its various attorneys have engaged in a sustained, deliberate pattern of dilatory, obdurate, and vexatious conduct and have acted in bad faith throughout these sanction proceedings. Taken as a whole, this behavior prompts us to sanction both the County and Attorney Carroll. The details follow.
I. The Original Action and Interlocutory Appeal to This Court3
A. Wake TSI‘s Inspection of Fulton County‘s Dominion Voting Equipment and the Secretary‘s Consequent Decertification
Fulton County formerly utilized Dominion‘s Democracy Suite 5.5A Election Management System (“EMS“).4 The County leased the EMS from Dominion in April 2019. The County used it for the first time in that year‘s municipal elections and used it again in the 2020 primary and general elections.
Wake TSI claimed to have identified “five issues of note,” including a ballot scanning error rate of 0.005%, which exceeded the error rate set by the federal government (.0004%),8 and Dominion‘s installation on the EMS server of what Wake TSI described as a “software toolbox [that] allows any user with access to change and manipulate the EMS databases without logging (recording) to the Database, EMS or OS logfiles.”9 Wake TSI asserted that this software “makes the system certification invalid.”10 Wake TSI also opined “that the [2020] election [in Fulton County] was well run, was conducted in a diligent and effective manner[,] and followed the directions of the Commonwealth.”11
On July 8, 2021, having learned that Fulton County had provided third-party access to the County‘s voting equipment and that other counties had considered retaining outside parties to review and digitally copy their voting systems, the Secretary issued “Directive 1,” invoking the Secretary‘s authority under the Pennsylvania Election Code.12
The Secretary determined that third-party access to election-related electronic infrastructure “undermines chain of custody requirements and strict access limitations necessary to prevent both intentional and inadvertent tampering“; “jeopardizes the security and integrity of those systems“; and “negate[s] the ability of electronic voting system vendors to affirmatively state that such systems continue to meet Commonwealth Security standards, are validated as not posing security risks, and are able to be certified to perform as designed by” the vendor.13
Directive 1 limits third-party access to “Electronic Voting Systems” as follows:
a. County Boards of Elections shall not provide physical, electronic, or internal access to third parties seeking to copy and/or conduct an examination of state-certified electronic voting systems, or any components of such systems . . . . b. If access described in Paragraph 3.a. occurs, those pieces of voting equipment will be considered no longer secure or reliable to use in subsequent elections. As a result, the Department of State will withdraw the certification or use authority for those pieces of the county voting system. . . .
c. The Commonwealth of Pennsylvania will not reimburse any cost of replacement voting equipment for which certification or use authority has been withdrawn pursuant to this directive.14
Directive 1 also requires boards of elections to “notify the Secretary immediately upon receipt of any written or verbal request for third-party access to an electronic voting system, or any component thereof,” and directs both elections boards and “voting system vendors . . . to notify the Secretary immediately of any breach or attempted breach in the chain of custody of its voting system components.”15
According to the Secretary, Fulton County election officials “confirmed” that the County had “allowed Wake TSI . . . access to certain key components,” including the “election database, results files, and Windows system logs,” and had also allowed the company to use a “system imaging tool to take complete hard drive images of [certain election-related] computers’ and ‘complete images of two USB thumb drives’ used to transfer results files from their voting system computers to the computers used to upload results to the state‘s voter registration and election results reporting system.”16 The Secretary determined that the County‘s system had been “compromised” and that “neither Fulton County; [Dominion]; nor the [Secretary] can verify that the impacted components of Fulton County‘s leased voting system are safe to use in future elections.”17 Accordingly, the Secretary decertified the voting equipment that Fulton County used in the November 2020 election.18
B. Fulton County‘s Petition for Review Challenging the Secretary‘s Exercise of Decertification Authority
On August 18, 2021, Fulton County; the Fulton County Board of Elections; and Stuart L. Ulsh and Randy H. Bunch—individually and in their official capacities as County Commissioners—filed a Petition for Review against the Secretary in the Commonwealth Court‘s original jurisdiction. The County challenged the Secretary‘s authority to promulgate Directive 1 and sought vacatur or reversal of the Secretary‘s decertification of the County‘s voting equipment and/or its denial of Fulton County‘s access to state funds to cover the costs of replacing the decertified equipment.
The County asserted in Count I that the decertification was “arbitrary, capricious, and legally improper, and an error of law, as [the Secretary] failed to comply with the mandates of
In Count II, the County sought a declaratory judgment that the County has authority to allow a third-party vendor to examine and analyze its EMS.21 The County contended that, by “forbid[ding] any use of third-party vendors to conduct an examination of various components of” its EMS and doing so six months after the County “engaged Wake TSI to assist [the County] in conducting its ‘analysis,‘” the Secretary contradicted the Secretary‘s own 2016 and 2020 guidance documents.22 These documents, the County argued, generally anticipated counties’ use of third-party vendors, and the County asserted that the “analysis and investigation of [the EMS] with the assistance of Wake TSI was conducted in accordance with the requirements of the [Code] as well as the [Secretary‘s] then-current Guidance.”23
Count II concluded with the following prayer for relief:
Petitioners respectfully request that this Honorable Court enter an Order declaring that Petitioners . . . complied with the requirements of the Election Code and the Guidance issued by [the Secretary] in retaining and utilizing [Wake TSI] to assist [them] in conducting an analysis of Fulton County‘s Election System, and further declaring that any finding to the contrary by [the Secretary] should be stricken[,] and further declaring the July 20, 2021 decertification by the Secretary null and void and of no effect. . . .24
This aspect of the pleading dovetailed with Fulton County‘s claim that, had the Secretary inspected the voting equipment before decertifying it, the Secretary would have found that it continued to meet the Election Code‘s requirements for certification. In both regards, the County made assertions whose veracity might ultimately hinge upon disputed factual claims pertaining to the voting equipment‘s condition after Wake TSI‘s inspection.
In Count III, the County sought declaratory judgment to the effect that, in issuing Directive 1, the Secretary usurped the County‘s Board of Elections’ “power . . . to conduct a systematic and thorough inspection” of its elections with the assistance of third-party entities.25 In Count IV, the County sought a declaration that the Secretary lacks authority to withhold funds from the County to purchase replacement machines.26 In Count V, the County sought
The Secretary filed Preliminary Objections demurring only to Count III. The Secretary emphasized that the General Assembly delegated to the Secretary the authority to examine, approve, and reexamine voting systems and to issue directives or instructions for electronic voting procedures. The Secretary also noted that the General Assembly tasked the Secretary with determining whether a county‘s EMS “can be safely used by voters at elections as provided” in the Election Code.28
C. The Secretary Seeks to Prevent a Third-Party Inspection During the Litigation of the Petition for Review
On November 29, 2021, the Secretary discovered “a meeting agenda posted online” indicating that the Fulton County Board of Commissioners would vote on a motion the next day to allow the Senate Intergovernmental Operations Committee (“Senate Committee“) to examine the County‘s voting equipment.29 When contacted by the Secretary‘s counsel, Attorney Michele D. Hangley, counsel for the County, Attorney Thomas W. King, III, explained that the vote was not going forward and that the County had not received a request from the Senate Committee.30 Attorney King indicated that the County intended to return its voting equipment to Dominion, but was considering first making it available to another third-party for additional inspection.31 Attorney Hangley responded “that such an ‘inspection’ threatened to spoliate evidence central to Petitioners’ claims,” and reminded Attorney King that the Secretary had “requested that the Department of State be given plenty of notice of any vote on or scheduling of any inspection.”32
On December 10, Senator Cris Dush, who had replaced Senator Doug Mastriano as Chair of the Senate Committee, wrote the County seeking “[p]ermission to collect the digital data from the election computers and hardware used by [the County] in the November 2020 election” as part of the Senate Committee‘s investigation of the Commonwealth‘s election system.33 On December 14, the Secretary learned—again from the County‘s website rather than from direct notice—that Fulton County‘s Commissioners had voted the same day to permit the inspection to go forward the
On December 17, 2021, concerned that the County would disregard the Secretary‘s request that it refrain from turning its voting equipment over to Envoy Sage, the Secretary filed an Application for Emergency Relief. The Secretary‘s Application sought to “enjoin [the County‘s] planned ‘inspection’ and require them to preserve voting equipment and data.”38 Attached to the application was the affidavit of the Secretary‘s expert, Ryan Macias. Mr. Macias is a voting technology consultant with more than sixteen years’ experience in “election technology, security, and policy,” who previously served as the Acting Director of the United States Election Assistance Commission, which assesses the security, accuracy, and accessibility of voting systems nationwide.39 There, Mr. Macias “managed multiple voting system applications and testing campaigns including the Dominion [system] used in Fulton County.”40
Mr. Macias attested that he reviewed the County‘s plan to grant Envoy Sage access to its voting equipment, and “took part in a limited inspection of” that equipment on October 13, 2021, “as part of a preliminary effort to determine whether any of the compromised machines could potentially be ‘sanitized’ in a way that would allow their reuse.”41 Mr. Macias observed that “[t]he Envoy Sage Protocol is highly irregular and does not conform to any type of industry standard for such a document.”42 He found the absence of proper protocols “particularly alarming” because “the equipment in question includes electronic data which can be easily altered—intentionally or unintentionally—without ever dismantling any hardware or even touching a keyboard.”43 “[O]nce such data [are] altered, it may be difficult, if not impossible, to trace things back to determine the status quo ante, i.e., to see what data, if any, was altered, and how.”44 Mr. Macias concluded that the Envoy Sage inspection “could irrevocably undermine the ability to review, examine, or analyze the condition of the equipment and data as it existed prior to Envoy Sage‘s activities.”45
In support of the Emergency Application, the Secretary cited our decision in Pyeritz v. Commonwealth, 32 A.3d 687, 694 (Pa. 2011), wherein this Court observed that “parties to pending and prospective suits, upon an appropriate showing, may be able to obtain injunctive relief to preserve evidence,” and pointed to several “factors for obtaining such relief” drawn from the United States District Court‘s decision in Capricorn Power Co. v. Siemens Westinghouse Power Corp., 220 F.R.D. 429, 433-34 (W.D. Pa. 2004):
(1) the level of concern the court has for the continuing existence and maintenance of the integrity of the evidence in question in the absence of an order directing preservation of the evidence;
(2) any irreparable harm likely to result to the party seeking the preservation of evidence absent an order directing preservation; and
(3) the capability of an individual, entity, or party to maintain the evidence sought to be preserved, not only as to the evidence‘s original form, condition or contents, but also the physical, spatial and financial burdens created by ordering evidence preservation.47
After analyzing each factor, the Secretary requested an order preventing the County “from providing any third party (other than [Dominion]) with access to the electronic voting machines in Fulton County‘s possession . . . including but not limited to allowing the inspection by Envoy Sage currently scheduled for December 22, 2021,” and requiring Petitioners to “take all necessary steps . . . to preserve those machines, and any data stored thereon, in a secured and unaltered state pending further order of the Court.”48
In its response, Fulton County asserted that “[t]he electronically stored information at issue is the primary evidence in this case” and that the voting equipment had “already been inspected by third-party representatives of the [Secretary], who is now trying to prohibit the Petitioners from conducting their own inspection of the evidence in this case.”49 Thus, Petitioners implied that they did not reap sufficient evidence from Wake TSI‘s investigation to pursue this litigation, but rather required a second inspection specifically to obtain such evidence.
After the parties presented argument before the Commonwealth Court, President Judge Emerita Mary Hannah Leavitt postponed the planned inspection to January 10, 2022, “by which time,” the court optimistically suggested, “the parties will have negotiated protocols for said inspection.”50 The parties did not meet the court‘s expectations, and a continuing pattern of failed negotiations and court-ordered delays followed. On January 11, the
In the Renewed Application, the Secretary again sought to bar the Envoy Sage inspection, citing various irregularities and uncertainties in the inspection proposed as well as concerns about Envoy Sage itself. The Secretary noted the Secretary‘s own inability to participate in the inspection sufficiently to protect its interests and to monitor whether and to what extent the equipment and data are compromised. The Secretary observed that it had “no reasonable assurance that the inspection will not spoliate key evidence in this case.”53 The Secretary further proposed that, “[t]o the extent any inspection is allowed to proceed, it should be required to take place as party discovery in this case, subject to a strict protective order prohibiting disclosure to any third parties.”54 The Secretary‘s argument and Mr. Macias‘s supporting affidavit relied upon the global proposition that any further inspection of the EMS risked irrevocably compromising the evidentiary value of the voting equipment to the resolution of any of the County‘s claims that might be affected by questions of fact informed by measurable aspects of the machines.55
In opposing the Renewed Application, Fulton County abandoned its former assertion that the Envoy Sage inspection was critical to developing the factual record in furtherance of the County‘s own Petition for Review, disclaiming for the first time any interest in the condition or recertification of its voting equipment—or, strikingly, any data obtained from the Envoy Sage search that it was fighting to enable. Now, the County framed its challenge solely as a question of law testing the authority that the Election Code confers upon the Secretary to decertify the County‘s voting equipment, to take other remedial actions, and more generally to issue Directive 1 or similar orders in the future.56
Shortly after 10:00 a.m. on Friday, January 14—hours before the scheduled inspection—the Commonwealth Court denied the Secretary‘s Renewed Application and refused
D. The Secretary‘s Appeal to this Court and its Emergency Application for a Stay
That same day, immediately before the 1:00 p.m. inspection was to begin, the Secretary filed an appeal to this Court together with an Emergency Application for a Stay (“Stay Application“), which this author granted on a temporary basis in order to preserve the status quo pending review by the full Court. On January 27, 2022, the full Court extended that stay pending final resolution of the Secretary‘s appeal—which does not concern the underlying challenge to the Secretary‘s authority, but only the Secretary‘s effort, denied by the Commonwealth Court, to secure Fulton County‘s voting equipment from further inspections while that underlying challenge is litigated in full.
It is important to the reasoning that follows to review critical highlights of the Stay Application. In providing a brief, pointed account of the foregoing history of this case, the Secretary expressed incredulity:
[D]espite the consequences of [the County‘s] earlier decision to allow third-party access to Fulton County‘s electronic voting equipment, and despite the fact that this equipment—in particular, its status and condition following Wake TSI‘s “examination“—is essential evidence in this case, [the County] decided to allow yet another third party to access that equipment and manipulate its data. And, once again, [the County] made this decision without providing advance notice to the Secretary, who is not only Pennsylvania‘s “chief election official,” charged with the statutory responsibility to protect the security of electronic voting equipment, . . . but is also a litigant with discovery rights that [the County is] obligated to respect, see, e.g., [Pennsylvania Rule of Professional Conduct] 3.4 (requiring “[f]airness to [o]pposing [p]arty and [c]ounsel” and prohibiting the “unlawful[] alter[ation], destr[uction] or conceal[ment of] a document or other material having potential evidentiary value“).60
Because our consequent orders granting the Secretary temporary relief lie at the heart of the County‘s defense to the Sanctions Application, we reproduce them in full. First, on January 14, 2022, this author issued a single-Justice temporary order pending review by the full Court.
AND NOW, this 14th day of January, 2022, [the Secretary‘s] “Emergency Application to Stay Third-Party Inspection of Electronic Voting System Scheduled
to Begin at 1:00 p.m. on January 14, 2022” is GRANTED, on a temporary basis, pending consideration of the request by the full Court. IT IS FURTHER ORDERED that the inspection of Fulton County‘s electronic voting equipment that is currently scheduled to begin at 1:00 p.m. on January 14, 2022, is hereby STAYED and ENJOINED pending further Order of the Court.
On January 27, the full Court extended the stay until we could resolve the Secretary‘s appeal:
AND NOW, this 27th day of January, 2022, Respondent-Appellant‘s “Emergency Application to Stay Third-Party Inspection of Electronic Voting System Scheduled to Begin at 1:00 p.m. on January 14, 2022” is GRANTED. The single-Justice Order entered on January 14, 2022, staying the lower court‘s ruling and enjoining the proposed third-party inspection of Fulton County‘s electronic voting equipment, shall remain in effect pending the disposition of the above-captioned appeal.
Thus, our January 27 Order adopted and extended the effect of the January 14 Order‘s throughout the pendency of the Secretary‘s interlocutory appeal.
The proceedings challenging the Secretary‘s decertification authority continued while the January 27 Order remained in effect and this Court considered the pending appeal. Meanwhile, on April 12, 2022, at a public meeting, the Fulton County Commissioners voted unanimously to terminate the engagement of the attorneys who had represented the Commissioners to that date in the instant litigation. As well, a majority of the Fulton County Commissioners—Commissioner Paula J. Shives voting “nay“—voted to appoint Pennsylvania Attorney Thomas Carroll and Michigan Attorney Stefanie Lambert to represent the County moving forward.61 At noon on that same day, Commissioner Ulsh signed out a key to the locked room in which the voting equipment at issue was stored.62
On May 17, 2022, this Court issued an order scheduling oral argument on the appeal for our September session in Philadelphia. In addition to reproducing the Secretary‘s issues as stated, we “further directed [the parties] to provide supplemental
briefing and argument concerning whether this Court has jurisdiction to entertain the instant interlocutory appeal under
In the wake of our May 17, 2022 Order, Fulton County‘s (and its attorneys‘) pattern of neglect and non-compliance emerged. The Secretary timely filed and served a supplemental brief concerning this Court‘s appellate jurisdiction on June 16, 2022, which established July 18, 2022 as the due date for Fulton County‘s responsive brief.65 On June 28, 2022, while the appeal was pending, and while Fulton County to all reasonable appearances was precluded from permitting a third-party inspection of the County‘s voting equipment, Attorney Carroll entered his appearance in the underlying litigation in the Commonwealth Court. Attorney Carroll did not move for the admission pro hac vice of Attorney Lambert, who had been appointed with him.
The Commonwealth Court having denied the Secretary‘s preliminary objection to Count III of the Petition for Review on May 23, 2022, the Secretary had filed her Answer and New Matter to Fulton County‘s Petition for Review on June 22, 2022. Consequently, by rule, Fulton County‘s responsive pleading in the Commonwealth Court was due on or before July 12. Despite the fact that Attorney Carroll entered his appearance on June 28, 2022, he waited until 5:27 p.m. on the date of the July 12 deadline to file a motion seeking to extend the time for a response until July 18. Therein, Attorney Carroll noted his June 28 entry of appearance and cited his status as “a solo practitioner ... newly undertaking representation of Petitioners.”66 He did not mention that he had been appointed co-special counsel for the County in a public meeting over three months earlier. He also offered no explanation for failing to seek an extension earlier in the two weeks between his entry of appearance and the deadline for Fulton County‘s responsive pleading. The Commonwealth Court granted the motion, later extending the deadline until July 26, 2022.
On July 5, 2022, this Court‘s Prothonotary sent correspondence to the most recent counsel of record for Fulton County, James M. Stein, James M. Stein, Jr., and
On July 20, 2022, our Prothonotary sent another letter to Attorneys Stein68 and Steinhardt. The letter referred to our May 17, 2022 order scheduling argument and directing submission of a supplemental brief, and it noted that Fulton County‘s jurisdictional brief was overdue. The letter directed the County to “file for an extension of time Nunc Pro Tunc together with [its] brief on or before July 25, 2022.”
On July 25, this Court sent additional notices to Attorneys Stein and Steinhardt, again soliciting their acknowledgment of the argument notice. This was followed on July 26 by still more correspondence “remind[ing]” counsel of their obligation to respond to this Court‘s Orders and notices and directing counsel‘s attention to the aforesaid July 5 and July 25 notices.
At 7:10 p.m. on July 26, 2022, Attorney Carroll belatedly entered his appearance in this Court. At 7:51 p.m. on that date, he filed a “Motion Nunc Pro Tunc for Leave to File Appellees’ Supplemental Brief.” Not only was this motion filed after the July 25 deadline we prescribed, but it also did not include the supplemental brief that this Court directed the County to include with the motion. By way of an explanation for Fulton County‘s continuing noncompliance, Attorney Carroll offered only this: “Undersigned counsel, having just appeared in this case, for good cause, hereby moves the Court to allow for an extension of the filing of [the County‘s] supplemental brief to Monday, August 8, 2022.” August 8 was fourteen days after our already-extended deadline for the filing. Attorney Carroll offered nothing to substantiate “good cause” and did not qualify his “just having appeared” comment with an acknowledgment of his April 12 appointment as special counsel specifically for this litigation—or, for that matter, his appearance and active participation in the underlying litigation in the Commonwealth Court approximately a month before entering his appearance in this Court.
On July 27, 2022, this Court sent another argument notice and request for acknowledgment,
Oral argument was scheduled for Wednesday September 14, 2022. On the morning of Monday, September 12, 2022, Attorney Carroll a “Motion to Adjourn Oral Argument,” asserting emergent personal reasons that allegedly prevented him from “prepar[ing] for oral argument . . . and/or associat[ing] other counsel as a substitute this close to the time for the presentation of oral argument.”69 Attorney Carroll‘s Motion to Adjourn Oral Argument was not verified, as this Court‘s argument notice expressly requires of those seeking a continuance. Attorney Carroll averred that the Secretary did not accede to the request, preferring that this Court decide the collateral appeal on the parties’ briefs. Failing that, the Secretary asked that argument be rescheduled for this Court‘s November session in Harrisburg. This Court granted the extension in a September 13 Order and directed that the case be heard in Philadelphia during our October session. We noted: “Counsel SHALL appear for that scheduled argument, and no further continuance requests will be entertained.”70 Our Prothonotary scheduled argument for October 26, 2022.
II. The Speckin Forensics Inspection of the Voting Equipment and the Secretary‘s Application for Contempt and Sanctions
Shortly before the rescheduled argument, the Secretary redirected our focus to a pressing matter. On October 18, 2022, the Secretary filed the Sanctions Application before us. The Secretary informed this Court that, on July 13 and 14, 2022, Fulton County allowed Speckin to inspect the voting equipment at issue in this litigation, in alleged defiance of our pending stay order.
Neither the Commissioners’ intent, nor the fact, nature, and scope of this inspection, were addressed in a public proceeding by the Fulton County Commission or Election Board, nor was the inspection approved by a formal vote of either body. The County also did not notify the Secretary or Dominion, both of whom previously had claimed the right to notice of any inspection—the Secretary, as a function of her authority over the administration of
So closely held was the news of the planned inspection that it only came to public light (indirectly) when Fulton County filed a separate breach of contract action against Dominion in the Court of Common Pleas of Fulton County on September 21, 2022, just seven days after the September 14, 2022 oral argument that Attorney Carroll averred he could not attend.71 Fulton County‘s complaint relied principally upon Speckin‘s September 15, 2022 report of its findings from the inspection, which the County attached. The County explained that the Speckin report was based upon analyses “performed on six hard drives in Fulton County” in July of 2022.72 Speckin described a highly intrusive examination of the County‘s voting equipment, which the County does not dispute.
Two events followed the filing of the Secretary‘s Sanctions Application. First, this Court entered an order appointing Commonwealth Court President Judge Cohn Jubelirer as Special Master to conduct the evidentiary proceedings necessary to develop a record sufficient to address the Secretary‘s allegations and the relief the Secretary sought. We directed the Master to provide a report proposing findings of fact and conclusions of law on or before November 18, 2022. In that October 21, 2022 Order, this Court directed the Special Master (1) to determine whether the Secretary‘s application sounded in civil or criminal contempt; (2) to “afford the parties such process as is due in connection with that determination“; and (3) to make separate determinations as to each form of relief the Secretary seeks, including the imposition of sanctions, the award of counsel fees, and dismissal of Fulton County‘s underlying and ongoing challenge to the Secretary‘s authority to decertify Fulton County‘s voting machines.
In a second Order issued the same day, this Court directed that this Court would not hear oral argument on the pending appeal of the Commonwealth Court‘s denial of a protective order as scheduled. Instead, we would rule on the appeal based upon the parties’ briefs.
III. The Special Master Proceedings
A. Discovery
On October 24, 2022, the Special Master issued an initial order (1) directing Fulton County to file an Answer to the Secretary‘s Sanctions Application, (2) directing the parties to file memoranda of law concerning the sanctions sought by the Secretary, and (3) scheduling a status conference for October 27.73 At the October 27
The Secretary proposed “targeted” discovery including depositions of County Commissioners Ulsh, Bunch, and Shives, and the disclosure of communications and documents in which the parties discussed the Speckin inspection and this Court‘s protective order. The Secretary explained that it sought these items so that it could determine who instigated and decided to conduct the inspection, who engaged and paid Speckin, and assess the relevant individuals’ understandings of and intentions regarding our order.
The County opposed the Secretary‘s proposal categorically. Attorney Carroll maintained that no discovery could occur until the Special Master ruled upon the scope of this Court‘s protective order, because Fulton County contended that its conduct fell entirely outside our protective order‘s scope, rendering Speckin‘s inspection permissible.75 Consequently, the County asserted, contempt would not lie as a matter of law. Fulton County also maintained that any discovery would impair its litigation interests in the County‘s pending breach of contract action against Dominion as well as its RTKL appeal.
The Special Master rejected Fulton County‘s arguments and ruled that discovery would proceed. In her October 27, 2022 Order, the Special Master directed the parties to provide a joint scheduling order suggesting deadlines for discovery—or, if no agreement could be reached, separate proposed orders—by noon on October 28, 2022. The Special Master added that no continuance would be granted and no late submission would be considered.
The parties failed to reach an agreement. After receiving the parties’ proposals, the Special Master issued an order on October 28, 2022, which functioned both as a rule to show cause under
The balance of the order directed the parties to serve written discovery requests by noon on October 31, and to respond, produce, or object no later than noon on November 2. The order further specified that all privilege-based objections must be accompanied by a detailed privilege log and cautioned that any untimely objections would be waived and disregarded. Accommodating Attorney Carroll‘s scheduled vacation the week beginning on October 30, and without objection by the parties, the Special Master scheduled the evidentiary hearing for November 9 and 10.
Importantly, the Special Master admonished the parties as follows: “Given the existing time constraints in this matter, no extensions or continuances shall be granted and no late submissions will be considered by the Court. In the event counsel for any party cannot meet the deadlines set forth above, the Court expects the parties to retain other counsel.”77
As the hearings approached, the County repeatedly confounded the Special Master‘s efforts to conduct these proceedings in an orderly and efficient manner with serial interruptions, delays, and even what can only be described as defiance. The Secretary timely served discovery requests on October 31. But at approximately 10:30 p.m. on November 1—four days after the Master issued her rule and scheduling order, and approximately four business hours before responses and objections were due—Fulton County filed directly to this Court (rather than the Special Master) an “Emergency Application for a Preliminary Injunction to Enjoin Discovery in Special Master Proceedings and to Compel Legal Rulings Preceding Said Discovery” (“First Application to Enjoin“). Therein, Fulton County contended that there was no genuine dispute of a material fact requiring discovery because the County conceded that the Speckin inspection had occurred. This argument wholly disregarded the fact that the Secretary‘s contempt allegations and other stated bases for the imposition of sanctions entail state-of-mind determinations that are not informed by concessions of the occurrence or non-occurrence of events alone. The County has never really acknowledged, much less offered a discernible defense regarding, these critical state-of-mind factors.
Second, Fulton County argued at great length that discovery before resolution of the much-belabored “predicate legal rulings” would prejudice the County by forcing it to disclose information that might not serve its interests in the parallel breach of contract and RTKL actions against Dominion. Relatedly, the County vaguely invoked various RTKL protections without explaining what principle or authority dictated that RTKL protections may serve as a discovery bar in substantially unrelated litigation.78 Finally, Fulton
Conspicuous by its absence from the First Application to Enjoin was any developed argument as to why these various objections could not have been raised individually to the Secretary‘s detailed proposed deposition questions, interrogatories, and requests for admission and production as directed by the Special Master. This omission has persisted throughout these proceedings. The County does not maintain that the time afforded was insufficient. The County does not argue that the Secretary‘s requests contradicted the Special Master‘s order, which bore the hallmarks and expectations of traditional discovery practice but for the compressed schedule. Reading the County‘s First Application to Enjoin in isolation, one might think that the County was afforded no opportunity to protect its interests. In fact, it was denied none of the protections enjoyed by any litigant subject to discovery. But rather than crafting privilege-based objections to specific requests and questions and providing a privilege log as directed by the Special Master, the County wagered its limited time on a long-winded cri de coeur insisting that this Court excuse it from the fact-finding process that this Court itself had prescribed.
We denied relief in a November 2, 2022 Order, referring the question to the Special Master. We underscored that our order had no prejudicial effect on “Petitioner-Appellee‘s rights to seek discovery-related relief before the Special Master in due course and in full conformity with any prior or future orders or directives issued by the Special Master.”80 The County‘s last-minute application and our consideration of same inevitably had scuppered the Special Master‘s carefully crafted schedule. But rather than hold Fulton County to the losing side of its own gamble, we extended the deadlines for responses and objections by twenty-four hours—an extension to which the Special Master added eight hours of grace time in a subsequent order. Still, the County again declined its renewed opportunity to engage in good-faith discovery.
On November 3, 2022, the Secretary filed an “Emergency Application to Compel the Depositions of Ulsh, Bunch, and Shives on November 4 and 5, 2022.” The Secretary asserted that, on October 31, it served upon Attorney Carroll proposed deposition questions and notices of remote video depositions for Ulsh, Bunch, and Shives for specific times on November 4 and 5, 2022. The Secretary maintained that its application was necessary because the County had engaged in a pattern of obstruction that invited skepticism about its intent to comply. On November 4, in an “Application for Discovery Sanctions and Incorporated Memorandum of Law,” the Secretary informed the Master that, although the County had served responses and objections to the Secretary‘s timely served discovery requests, the responses comprised an eleven-page standard objection asserting the now-familiar generic privileges and objections followed by responses to virtually all specific requests with another form response that asserted
Rather than compel the depositions, the Special Master deferred ruling and again extended the deadline for the County to respond and/or object to the proposed deposition questions until 8:00 p.m. on November 3. The Master also scheduled a status conference for November 4. Again the Master rejected the County‘s contention that it was entitled to a threshold ruling on the scope of this Court‘s stay order before discovery could proceed. On November 4, before the time appointed for the status conference, the Secretary filed a new “Application for Discovery Sanctions” asserting the same unrectified deficiencies in the County‘s responses. The Secretary proposed that the court deem admitted any unresponded-to requests for admission and grant the Secretary certain findings of fact.82
Meanwhile, the County filed its pre-conference “Motion for Predicate Legal Rulings and to Exclude Certain Discovery Requested by the Secretary,” the title signaling its redundant substance. Undeterred by the Special Master‘s three prior rejections of the argument as well as this Court‘s refusal to consider the matter, the County again insisted that discovery could not proceed until the Master determined the scope of the stay order. And in case the Master again was unpersuaded, the County asked the Master to allow discovery subject to her “categorical determination as to Fulton County‘s rights given that there remains underlying litigation, additional litigation by and between Fulton County and Dominion, and Fulton County‘s general rights and privileges under law, including the RTKL.” This “alternative” simply dressed the same old argument in slightly different garb. Here again the County insisted upon a “predicate” ruling.83
The November 4 status conference proceeded as scheduled. Again, the Master denied the County‘s redundant objections for familiar reasons. Reminding the County that a party objecting to discovery bears the burden of establishing non-discoverability,84
At the November 4 conference, Attorney Carroll asserted for the first time that Commissioner Ulsh would be unable to attend the evidentiary hearing on November 9 and 10 because he had a previously scheduled (and previously undisclosed) vacation requiring him to depart on Election Day, November 8, 2022, immediately after the election ended.86 During the hearing, the Master reminded Attorney Carroll that the hearing was scheduled to accommodate his scheduled vacation per the October 27 hearing, and in the order that followed, the Master “caution[ed] that [the Master] expects all Commissioners to comply with properly served notices to attend.”87
The Secretary again served Attorney Carroll with the deposition notices, but the effort proved futile. At 7:54 a.m. on November 7, shortly before the first scheduled deposition at 9:30 a.m., Fulton County filed directly to the Justices of this Court a sixty-page “Emergency Application for a Preliminary Injunction to Enjoin Depositions Scheduled for November 7, 2022 and to Have Special Master Rule on Fulton County‘s Legal Issues Raised in Its Motion Objecting to Discovery.” With one modest exception, the Application was materially indistinguishable88 from its November 1 request to this Court to block discovery.
The lone new contention appeared only in the first paragraph of the Introduction, where the County now asserted that no Commissioners could appear for their depositions that day because the preceding Friday (November 4) the Secretary “ha[d]
The Secretary appended to its response to the County‘s Application a declaration under penalties for unsworn falsifications90 by Jonathan Marks, the Deputy Secretary for Elections and Commissions at the Department of State. Deputy Secretary Marks averred that the outage occurred at 1:00 p.m. on Friday, November 4, but that it did not affect the County‘s ability “to record returned ballots and process applications.”91 He acknowledged that the outage impeded the County‘s “ability to generate certain reports and poll books,” but asserted that all issues were resolved by 7:20 a.m. on Saturday, November 5.92 He also noted that, “[a]fter initial communications as to when the outage would be resolved, Fulton County printed its poll books on November 5,” and the Department received no further communications from the County.93 Thus, the problem that Attorney Carroll cited to support extraordinary relief he had previously sought by other means fully was resolved well within twenty-four hours of its occurrence—and County elections officials had utilized the briefly disabled functionality two days before Attorney Carroll filed a document citing the issue to relieve his clients of their obligations to appear.
Later the same day—but after the time the first deposition was scheduled to begin—this Court denied the County‘s Application per curiam without comment.
At 8:05 a.m., ten minutes after filing the aforesaid Application with this Court, Attorney Carroll informed counsel for the Secretary that his clients would not appear for the noticed depositions or for the evidentiary hearing scheduled for November 9. The Secretary immediately requested that the Master hold Fulton County in contempt and direct the arrest of Commissioners Ulsh and Bunch to ensure their appearances at the November 9 hearing. The Special Master again held the Secretary‘s request for sanctions in abeyance but made clear that all parties who had been noticed must appear.
Attorney Carroll remained undeterred. He responded by filing a “Motion and/or Reply to Secretary‘s Motion and to Suspend Proceedings Against County Commissioners During Election Under Pennsylvania Law and to Stay Pending Application for Injunction in the Supreme Court.”94 Attorney Carroll now contended that the Commissioners could
This position was nothing short of astounding. First, of course, Attorney Carroll already had agreed to the November 9 hearing, scheduled then for his benefit, and presumably when he was well aware that the election fell on November 8 and was more or less aware of the Commissioners’ obligations as members of the Board of Elections. Second, he had informed the Court on November 4 that Commissioner Ulsh could not attend the November 9 hearing because he had scheduled a vacation that would begin on Election Day immediately after the election was completed. In effect, Attorney Carroll maintained that the November 9 hearing would interfere with duties on November 9, but Commissioner Ulsh could discharge those same duties both on Election Day itself and on the day of the hearing from his vacation. Finally, in between these brackets, Attorney Carroll sought to relieve the Commissioners from their obligations to appear for their depositions, citing a problem that no longer existed.
The Special Master denied relief on November 8 and (again) directed all noticed parties to appear for the next day‘s hearing. But by then, it was too late to depose the witnesses. Attorney Carroll had achieved his clear objective to deny the Secretary the opportunity to depose his clients by any means, no matter how spurious.
B. The Hearings and the Parties’ Proposed Findings of Fact and Conclusions of Law
Around 1:00 a.m. on the morning of the November 9 hearing, Attorney Carroll for the first time filed a motion seeking pro hac vice admission of Attorney Lambert, who, like Attorney Carroll, had represented the County since April 12, 2022. The Special Master denied the motion, citing Attorney Carroll‘s failure to file it three days before Attorney Lambert‘s intended appearance as required by the Bar Admission Rules,95 and because the motion lacked the mandatory payment certification from the IOLTA Board.96
While these deficiencies alone supported the Special Master‘s rejection of the motion, the Secretary identified additional problems that Attorneys Carroll and Lambert have never disputed or fully rectified. For example, Attorney Lambert failed to disclose the pendency of disciplinary proceedings in Michigan arising from litigation conduct in a Michigan federal case that also led to a sanctions order making her jointly and severally liable with co-counsel for over $170,000 in counsel fees in 2020 election-related litigation deemed frivolous and vexatious.97 The court in that case also referred Attorney Lambert and co-counsel to the Michigan Attorney Grievance Commission and the disciplinary authority for any other jurisdictions where counsel was admitted “for investigation and possible suspension or disbarment and ordered [counsel] to complete at least twelve (12) hours of continuing legal education in the subjects of pleading standards . . . and election law.”98 Attorney Lambert eventually provided proof of good standing in the Michigan bar, but never
The Special Master nonetheless allowed Attorney Lambert to remain in the courtroom as the County‘s chosen counsel, explaining that, “although [Attorney Lambert] wouldn‘t be able to question witnesses or speak to the court, [she] could assist Attorney Carroll, confer with him and assist him.”101 Attorney Lambert never was, and never has been, admitted pro hac vice in this proceeding or the underlying litigation.102
The November 9 hearing comprised the testimony of Commissioners Ulsh and Shives. The entirety of November 10 was spent on Mr. Macias’ testimony as to the materially undisputed potentially spoliative effects of the third-party inspections of the County‘s voting equipment. Commissioner Bunch ultimately testified remotely on November 14 after an asserted emergency rendered him unavailable to appear sooner.
The testimony of Commissioners Ulsh and Bunch need hardly be reviewed. While Attorney Robert A. Wiygul for the Secretary methodically questioned both of them regarding every potentially relevant communication, decision, and event (official and unofficial) that pertained to their knowledge and understanding of our stay order and the Speckin inspection, each of these two commissioners invoked his Fifth Amendment right against self-incrimination, sometimes to the point of absurdity.103 The Special Master repeatedly cautioned that, because these proceedings were civil in nature, the fact-finder could draw adverse inferences from these invocations.104
Of necessity, then, Commissioner Shives, who testified without invoking any privileges, provided much of the relevant probative evidence that Commissioners Ulsh and Bunch neither admitted nor denied.
It also emerged that her failure to appear at her scheduled deposition was not a function of her deliberate non-compliance, as it evidently was for Commissioners Ulsh and Bunch, but rather because Attorney Carroll had failed to forward to her the notice of her deposition that the Secretary timely served upon him. Attorney Carroll waved away the omission as an oversight, but his oversight appears only to have affected Commissioner Shives, who, it turns out, had refused to support all or most of the efforts to interrogate the conduct of the 2020 election that led us to this pass and who was unlikely to invoke the Fifth Amendment. Commissioners Ulsh and Bunch, conversely, evidently were informed of the notices.105
The Special Master‘s findings of fact necessarily derived from the testimony of Commissioner Shives and Mr. Macias. But the Master consistently appended to citations of those witnesses’ testimony instances when Commissioners Ulsh and Bunch invoked the Fifth Amendment rather than address the same topic. This effectively embodied the Master‘s decision to draw adverse inferences as corroborative rather than direct evidence, as well-established law allows and the evidence in this case unequivocally justifies.106 Notably, Commissioner Shives and Mr. Macias testified either to matters that the County has acknowledged at least by necessary implication (e.g., the potentially spoliative effect of Speckin‘s inspection107) or that circumstances
The parties and the Master agreed early in these proceedings that, after the hearings concluded, the parties would each submit proposed findings of fact and conclusions of law. Even though that agreement was confirmed on the record at the conclusion of the November 14 hearing—including as to the filing‘s form, i.e., laid out with the customary numbered paragraphs with references to the record—the County declined to employ that format, or for that matter to submit any proposed findings of fact pertinent to the allegations of contempt. Instead, the County submitted a strikingly brief, minimally sourced document that rehashed its principal argument regarding the scope of this Court‘s protective order.108 Conversely, the Secretary provided a nearly ninety-page narrative, painstakingly sourced, in the prescribed form.
The County also argued that sanctions could not be imposed because, on its account, “[t]he Pennsylvania General Assembly has delegated exclusive authority to county election boards to perform several functions relating to purchasing, maintenance, inspection and investigation of voting equipment.”109 Because this obligation required the provision of “functional election equipment,” the County continued, it “cannot be held in contempt for its good faith efforts to protect the constitutionally guaranteed rights of its citizens.”110 Closing
The conclusory nature of the County‘s arguments can best be illustrated by the following excerpt from its submission:
The issues in the underlying suit are purely concerning the legal question of who, among the Secretary and the County Board of Elections had authority to perform the acts of having the Dominion machines inspected in the first place.112 The actual integrity of the machines, and the extent to which they were inspected and/or compromised by the Wake TSI Report is not at issue in the underlying litigation.113 Therefore, in addition to not being within the scope of the Supreme Court‘s January Orders, and even if it was, the Conty [sic] had a right to do it, and even if it did not, the act in itself did ont [sic] violate the spirit of the January Orders, because no contemptuous act occurred by Fulton County have [sic] the defunct machines inspected.114
In sum, Fulton County has raised only one intelligible defense: the claim that our stay orders barred only the specified inspection at the specified date and time that was referred to in those orders.
IV. The Special Master‘s Recommendations and Our Analysis
A. Fulton County‘s Alleged Violation of this Court‘s Order and the Special Master‘s Recommendation That We Hold the County in Contempt
“There can be no question that courts have inherent power to enforce compliance with their lawful orders through civil contempt,” which “has long been recognized as the appropriate means by which a court may compel compliance with its orders.”115 This inherent power dates back centuries, and it is embodied in our Judicial Code.116
Among the matters we directed the Special Master to determine was whether the Secretary‘s allegation of contempt and the sanctions sought were civil or criminal in nature. What distinguishes civil from criminal contempt are the ends to be
With regard to the ends to be achieved, the distinction depends upon whether the sanctions’ “dominant purpose is to punish for the violation of a court order [criminal contempt] or to coerce into compliance with the order [civil contempt].”118 Civil contempt also enables the court to award the complainant expenses incurred as a consequence of the contemnor‘s violation.119 In imposing sanctions for coercive purposes, “the court must exercise the least possible power to the end proposed.”120
As noted above, notwithstanding Fulton County‘s occasional post hoc suggestion to the contrary, the Special Master and the parties agreed that this proceeding sounds in civil rather than criminal contempt. The Secretary primarily seeks compliance with this Court‘s temporary stay as well as compensation for the costs of obtaining and, belatedly, enforcing that stay when the County subverted that order in fact. We agree that the sanctions here at issue are to be resolved according to the rules of civil rather than criminal contempt.
“[I]n civil contempt proceedings the burden is on the complaining party to prove noncompliance by a preponderance of the evidence.”121 “The corollary of this proposition is that the order which is said to have been violated must be specific and definite.”122
Mere noncompliance with a court order is not by itself sufficient to prove contempt; rather, the complaining party must prove:
(1) That the contemnor had notice of the specific order or decree which he is alleged to have disobeyed;
(2) That the act constituting the contemnor‘s violation was volitional; and
(3) That the contemnor acted with wrongful intent.123
The County lashes its defense entirely to the question of clarity; it argues that our stay orders pending appeal refer by their terms only to the then-emergent Envoy
There is no shortage in Pennsylvania case law of boilerplate language to support this general proposition, but the County cites precious little of it. Primarily, it relies upon Stahl v. Redcay. There, consistent with the Third Circuit decision in Rubin, the Superior Court explained:
Because the order forming the basis for civil contempt must be strictly construed, any ambiguities or omissions in the order must be construed in favor of the defendant. In such cases, a contradictory order or an order whose specific terms have not been violated will not serve as the basis for a finding of contempt. . . A person may not be held in contempt of court for failing to obey an order that is too vague or that cannot be enforced.124
But the County offers nothing about Stahl‘s context. In Stahl, the Superior Court reversed sanctions imposed when counsel made a factual assertion during his opening argument that the court allegedly had precluded in a pre-trial ruling. But neither the opposing party nor the sanctioning trial court had cited any order imposing precisely the evidentiary constraint that the defendant allegedly violated, and the record disclosed none. The Stahl court nowhere suggested that violating the circumstantially clear intention of a court as embodied in a duly issued order of record is immunized simply by virtue of a claim of ambiguity that depends upon isolating the order from the circumstances of its issuance, including the stated reasoning of the party seeking the order and the logical intent of the Court in awarding it.125
Were the rigid proposition for which Fulton County cites Stahl consistent with the broader run of Pennsylvania law, that case‘s distinguishing features would be of little moment. But the law on this subject is not so doctrinaire. Like other jurisdictions we have surveyed, Pennsylvania law provides for far more sensitivity to circumstance than Stahl‘s language suggests or its peculiar facts would require. Common sense dictates that a more rigid approach inevitably would tempt those prepared to play fast and loose with court orders.
We find particular guidance in United States v. Christie Industries,126 which we cited favorably in our thoroughly sourced decision in Commonwealth v. Garrison.127 In Christie, the United States Court of Appeals for the Third Circuit rejected a defense to contempt that relied upon an excruciatingly literal reading of an order. The order in question was a preliminary injunction that barred the defendants “from preparing, packaging, promoting, selling, distributing, introducing and causing to be introduced and delivering and causing to be delivered for introduction
Citing the necessity of clarity, the defendants raised several highly technical arguments that parsed the order so as to exclude the allegedly contemptuous conduct. The court rejected nearly all of these arguments, including in particular the claim that the order was not violated (a) by the shipment in a single package of components that made up the “kit,” because the components were sold separately and were not advertised or sold as a “kit“; or (b) by substituting components such as non-cylindrical casings (“cylindrical” casings being the only sort described in the order); or (c) by shipping all components of an above-described kit but for the fuse coil.
The court rejected this last argument not because it was proscribed expressly or even implicitly, but because the court found that it violated the spirit and intent of the injunction to protect children during the pendency of litigation instantiated to do precisely that.131 The court observed that omitting the coil did not vitiate the essential non-compliance of the work-around, because a reasonably curious child could be expected to devise substitute fuses.
Similarly, the court found that the defendant violated the order when it added a warning in its catalog that only people of legal age should purchase the fireworks kits (or their equivalent) and that the buyer must sign a statement attesting that the buyer is of legal age. Again engaging common sense rather than parsing syntax in a vacuum, the court observed that some children foreseeably would order the kits (or their equivalent) notwithstanding the warning and would have no scruple about signing the form dishonestly.132
The Christie court acknowledged “that a person will not be held in contempt of an order unless the order has given him fair warning that his acts were forbidden,” and that “[t]he longstanding, salutary rule in contempt cases is that ambiguities and omissions in orders redound to the benefit of the person charged with contempt.”133 But it added a critical caveat:
[T]his is not to say that where an injunction does give fair warning of the acts that it forbids, it can be avoided on merely technical grounds.
The language of an injunction must be read in the light of the circumstances surrounding its entry: the relief sought by the moving party, the evidence produced at the hearing on the injunction, and the mischief that the injunction seeks to prevent.134
To similar effect is a long list of cases, including a Second Circuit case in which the court rejected a defense based upon a dubiously literal interpretation of an order: “In deciding whether an injunction has been violated it is proper to observe the objects for which the relief was granted and to find a breach of the decree in a violation of the spirit of the injunction, even though its strict letter may not have been disregarded.”135
Writing for the Court in McComb v. Jacksonville Paper Co.,136 Justice Douglas aptly anticipated the perils of literalist interpretations that exclude reasonable inferences about what any reasonable party would have understood was at issue in the run-up to the issuance of a contested injunctive order. In that case, Justice Douglas wrote:
It does not lie in their mouths to say that they have an immunity from civil contempt because the plan or scheme which they adopted was not specifically enjoined. Such a rule would give tremendous impetus to the program of experimentation with disobedience of the law which we condemned in Maggio v. Zeitz137. The instant case is an excellent
illustration of how it could operate to prevent accountability for persistent contumacy. Civil contempt is avoided today by showing that the specific plan adopted by respondents was not enjoined. Hence a new decree is entered enjoining that particular plan. Thereafter the defendants work out a plan that was not specifically enjoined. Immunity is once more obtained because the new plan was not specifically enjoined. And so a whole series of wrongs is perpetrated and a decree of enforcement goes for naught.138
The McComb Court also proposed an obvious good-faith alternative to gambling on a blinkered, self-serving reading of an order and hoping for the best: “Respondents could have petitioned the District Court for a modification, clarification or construction of the order. But [they] did not take that course . . . . They undertook to make their own determination of what the decree meant. They knew they acted at their peril.”139 The County might have elected some variation on this approach out of caution if it felt that the Speckin inspection could not wait.
In light of the circumstances in which the Secretary sought the protective order and the substance of the Petition for Review against which the Secretary sought to defend, and in the similar light cast by the relief the Secretary sought, the arguments the Secretary made in support in its several related applications here and below, and the arguments the County made in opposition, it would beggar credulity to accept Fulton County‘s suggestion that its agents were not aware that the Speckin inspection contravened the concern for spoliation that alone underlay this Court‘s decision to grant the Secretary the protective order it sought.
To similar effect, the Special Master observed:
Because the applications that elicited the Injunction Order clearly related to the collateral discovery issue on appeal, there was no need for any party to speculate or guess about the purpose of the Injunction Order . . . . The Supreme Court obviously intended to preserve its ability to render an appellate decision that was meaningful. . . . And any subsequent inspection of the Dominion Voting Equipment would moot out that appeal and prevent a meaningful resolution of the issues on appeal. Those issues were Dominion‘s right to protect its property and the Secretary‘s right to preserve evidence for her defense, which both depended entirely upon preventing further inspection of the Dominion Voting Equipment.140
Perhaps tellingly, the County does not openly test our credulity by proclaiming actual ignorance on the part of its agents. Although the County implies and surely
The Master also explained the patent absurdity of the County‘s reading: (1) that our first order, because it referred expressly to the Envoy Sage inspection and referred to the date and time for which it was scheduled, would have left the County free to reschedule the very same Envoy Sage inspection by a day or even an hour; (2) that our second order was issued, nonsensically, for the exclusive purpose of barring a particular inspection at a particular moment that passed nearly two weeks earlier; or, at best, (3) that we sought to stop only Envoy Sage from inspecting the machines, leaving literally any other individual or entity free to do anything to the voting equipment the County wanted.142
The Special Master concluded:
Put simply, . . . no reasonable interpretation of the Injunction Order would render it inapplicable to the Speckin Inspection. That inspection directly implicated the ground on which the Injunction Order was sought—avoiding spoliation143 of the evidence. Equally telling, the interpretation the County now attempts to give the Injunction Order . . . is unsupported by any of the grounds offered to the Supreme Court in support of the Secretary‘s application for the injunction. Indeed, if anything, these grounds supported prohibition of the [Speckin] Inspection to an even
greater degree than they supported prohibition of the Proposed Envoy Sage inspection.144
We agree. A court assessing compliance with its order may and indeed should view the words of the order in light of the terms and reasoning of the party seeking it and the procedural and real-world circumstances amid which it was issued.145 That we require clarity as to the conduct proscribed to ensure that the contempt sanction is not imposed when the alleged contemnor in good faith may not have understood the order‘s scope does not warrant venerating form to a degree that makes a mockery of substance. That our case law requires us to interpret ambiguous language in favor of the alleged contemnor does not require us to treat as reasonable an interpretation of our order that would render it incompatible with the clear impetus for its issuance and, in case of the January 27, 2022 order, without any discernible effect.
We can reaffirm our authority to proscribe conduct temporarily in the interests of justice or we can reward parties who play dumb to circumvent the proscription. But we cannot do both. We choose the former. We agree with the Special Master that the County deliberately, willfully, and wrongfully violated this Court‘s temporary order when it allowed Speckin to inspect the voting equipment, the condition of which is material to the underlying litigation. Accordingly, we adopt the Special Master‘s recommendation that this Court hold Fulton County in contempt of this Court.
B. The Sanctions Proposed by the Special Master
The Special Master recommends that this Court impose several sanctions upon Fulton County specifically for contempt.
Because we grant counsel fees to compensate the aggrieved party whose interests the violated order was intended to protect, December 17 is the proper trigger date, because it is then that the Secretary endeavored—ultimately successfully—to gain a degree of temporary protection for evidence that it believed might be relevant to its defense. Given what happened in the year to come, that is also precisely when the Secretary began throwing money in a well, for all the good it ultimately did. When the County violated our order in July, it necessarily compromised the evidentiary value of the
equipment for assessing its condition immediately after the Wake TSI inspection, precisely what the Secretary sought to preserve. The Secretary‘s first filing in furtherance of that goal was the December 17, 2021 Application. Later, our temporary order provisionally validated the Secretary‘s concern and preserved the status quo while we deliberated over whether the protective order should have been granted by the Commonwealth Court in the first place. The July inspection not only led to the instant sanction proceedings, it also rendered nugatory every dime the Secretary spent to protect those machines in the preceding eight months. Accordingly, we agree that Fulton County must reimburse all of the fees and costs the Secretary incurred in securing the protections that it has now lost irretrievably due to the County‘s flagrant violation of our stay order.147
The Special Master also proposes to ensure that Fulton County cannot again compromise the integrity of the machines. While it appears undisputed that the horse left the barn as soon as Speckin tapped into the voting equipment, we know what we do not know, and this Court will give the Secretary the benefit of our uncertainty. We will not assume that there is no scenario in which the present condition of the voting equipment may prove relevant to one or more of the County‘s claims, and at this point the County has given us no reason to trust that it will honor a mere reiteration of the same order it disregarded before. The Special Master proposes that we direct the County to transfer the voting equipment to “the custody and control of a neutral escrow agent pursuant to an agreement between the County, Dominion, and the escrow agent. The escrow agent would hold the Dominion Voting Equipment in trust until further order of court.”148 The Special Master further specified that the County would bear the expense of the impoundment.
Taking the County at its word, it is unclear what prejudice impoundment would cause. The County insists, with increasing volume as this case has evolved, that it has no interest in the equipment that it now identifies as “defunct.” Further, it disclaims any intention to use the equipment again. And the County provides no specific reason why the equipment would have any value to assessing the
Whether or how discovery required by these sanction proceedings affects the County‘s interests in another lawsuit does not affect the Secretary‘s entitlement to a full accounting of non-privileged evidence that is discoverable under the circumstances of this proceeding. And even if we were receptive to the argument, the County has never explained how its litigation interests in any other case are disserved, nor has the County availed itself of several opportunities to do so in appropriate detail. Moreover, any party, including Fulton County, is free to seek a continuance or other relief from any court in which it is actively litigating based upon the unfortunate situation it has brought upon itself here. But we do observe that the pending litigation requires us to clarify what court may release or allow access to the impounded equipment. We will entrust exclusive authority to end or modify the impoundment to the judge presiding over the underlying Petition for Review after the impoundment is completed under the supervision of the Special Master. That court shall consider any such requests in light of our discussion in this Opinion. The Commonwealth Court‘s exclusive authority naturally will pertain to requests associated with the County‘s Petition for Review. To ensure subsequent continuity in the chain of custody and the protection of such evidentiary value as the voting equipment may retain, the Commonwealth Court‘s authority must also encompass requests associated with any other pending proceeding, including the County‘s contract action against Dominion. As always, any party that is aggrieved by an impoundment-related order may seek emergency relief in this Court.
As noted earlier, the Special Master does not recommend that this Court grant the Secretary‘s requested sanction of directing dismissal of the County‘s underlying Petition for Review.149 We agree. To grant that sanction would cross the line between a coercive and punitive sanction, which lies outside the bounds of a civil contempt proceeding. Moreover, notwithstanding the presence of potentially fact-dependent claims, the County‘s Petition for Review includes pure questions of law pertaining to the Secretary‘s authority that may be resolved without recourse to the compromised evidence. Settling these legal questions will serve not only the parties but the Commonwealth generally. While we must hold the County to account for flouting our order, we will not deny its day in court on its duly raised, purely legal claims concerning the complex balance of state and local power over elections and the equipment used in election administration.
Instead, the Special Master recommended that this Court order that, “to the extent any fact relating to the effect of any inspection on the Dominion Voting Equipment is or becomes relevant in the underlying litigation, that fact will be conclusively established in the Secretary‘s favor.”150 The Master elaborated that this was strictly compensatory in nature, granting the Secretary the benefit of every potentially favorable inference that the County‘s malfeasance made impossible for the Secretary to establish by conventional proof.
While we do not disagree with the Special Master‘s reasoning or the essential fairness of the proposal, we decline to grant this sanction. First, the undisputed
C. The Special Master‘s Alternative Bases for the Imposition of Monetary Sanctions and Their Application to Attorney Carroll
The Special Master finds additional support for the sanctions she recommends in rules that do not require a finding of contempt. First, she reviews and relies upon the
Separately, the Special Master found a basis to sanction the County in
The Special Master offered the following analysis, which we adopt:
42. The Commonwealth Court recently described the meaning of [the terms dilatory, obdurate, and vexatious], for purposes of fee awards under the Judicial Code, as follows:
”Vexatious conduct is ‘without reasonable or probable cause or excuse; harassing; annoying.‘” According to the Pennsylvania Superior Court, generally speaking, ’obdurate’ conduct may be defined in this context as ‘stubbornly persistent in wrongdoing.’ Webster‘s Ninth New Collegiate Dictionary 815 (1987). Conduct is ’dilatory’ where the record demonstrates that counsel displayed a lack of diligence that delayed proceedings unnecessarily and caused additional legal work. In re Est. of Burger, 852 A.2d 385, 391 (Pa. Super. 2004) (emphasis added), aff‘d, 898 A.2d 547 (Pa. 2006).
MFW Wine Co., LLC v. Pa. LCB, 276 A.3d 1225, 1240 (Pa. Cmwlth. 2022) (cleaned up).
43. Additionally,
Section 2503(9) of the Judicial Code allows imposition of fees and costs for conduct that is “otherwise . . . in bad faith.” “The term ‘bad faith’ used inSection 2503(9) of the Judicial Code means ‘fraud, dishonesty or corruption.‘” MFW Wine, 276 A.3d at 1240.153
The Special Master found that the County acted vexatiously in allowing the Speckin inspection because it had no reasonable excuse and compromised the Secretary‘s interests in preserving the evidence. It acted obdurately insofar as Commissioners Ulsh and Bunch acted with wrongful intent in violating the order. And bad faith was evident in the secrecy Commissioners Ulsh and Bunch preserved around their actions, making every effort to avoid the scrutiny of anyone who might question or object to their actions, including their fellow Commissioner Shives.154
Regarding
As a function of its defense strategy, the County offers no material argument against any of those rules’ application except the above-rejected categorical defense to the charge that its conduct violated the protective order at all. With specific regard to the County, we adopt as our
Although we will not impute the County‘s contempt, as such, to Attorney Carroll directly, we do not overlook the fact that the County‘s violation occurred squarely during his watch—indeed, months after his appointment by the County and weeks after he had entered his appearance in the Commonwealth Court in the underlying litigation. It is difficult to believe that Attorney Carroll was ignorant of the events preceding and culminating in the Speckin inspection. Certainly, the inspection came to his attention by September 2022, when he filed the County‘s contract claims against Dominion, which relied heavily on the Speckin report. Aware as Attorney Carroll was (by then at least) of the underlying appeal in this litigation as well as the Secretary‘s and Dominion‘s claims of entitlement to advance notice of any inspection, we find notable that he determined that the inspection warranted no action relative to this appeal, such as the belated provision of notice to the Secretary, Dominion, or, for that matter, the courts engaged in aspects of this litigation. Similarly suggestive is the fact that, immediately after terminating the representation of prior counsel and appointing Attorneys Carroll and Lambert as special counsel in this matter on April 12, 2022, Commissioner Ulsh signed out the key to the locked room where the voting equipment was stored, a key which he did not return until shortly after the Speckin inspection.
Perhaps more importantly, once informed of these events, the Secretary filed the instant Sanctions Application, the detail, rigor, and potential merit of which revealed to Attorney Carroll (if he didn‘t know already) the gravity of the County‘s behavior as well as his own potential exposure. Despite being given every opportunity to participate in good faith in the proceeding, Attorney Carroll incessantly transgressed the bounds of zealous but ethical advocacy. He serially raised the same arguments before both the Special Master and directly to this Court, long after it was clear that neither would grant the relief he sought.
We never foreclosed the County‘s right to raise appropriate, particularized objections to the Secretary‘s discovery requests as specified by Special Master. This Court and the Master granted multiple extensions to facilitate the County‘s exercise of this right. Instead of adhering to these parameters, Attorney Carroll repeatedly tied up the Special Master, this Court, and the parties with prosaic eleventh-hour filings that drew resources and attention away from these and other proceedings.
Then there are Attorney Carroll‘s transparent efforts to delay the hearing itself. First, he insisted that it be delayed until November 9 to make room for his own vacation. Then, on the eve of that hearing, he contended that Commissioner Ulsh would be unable to attend the hearings due to his departure for vacation on November 8, which was Election Day. Meanwhile, as the November 7 and 8 depositions of the Commissioners approached—depositions that, themselves had already been delayed by Attorney Carroll‘s refusal to honor the Special Master‘s orders on their own terms—Attorney Carroll again attempted to subvert them. First, early on the morning of November 7, he filed a lengthy, but by then cookie-cutter brief again contending that all discovery was improper until the Special Master or the full Court ruled on his categorical defense
Even more significantly, Attorney Carroll also argued that correspondence from the Secretary issued the preceding Friday, November 4, concerning a temporary breakdown in the statewide SURE system required the Commissioners’ attention during the time scheduled for their depositions. But it quickly emerged that, not only had the system been restored in full early on the morning of Saturday, November 5, but also that Fulton County itself had printed out its poll books utilizing the system later that same Saturday. By the time Attorney Carroll claimed that the Secretary‘s letter precluded his clients’ depositions on Monday, the problem the letter identified had been solved for days. Attorney Carroll either failed to figure this out for himself or knowingly used a specious claim as a pretext to further jam up these proceedings. The same morning, Attorney Carroll asserted that Commissioner Ulsh could not appear at the hearing on November 9 because of his general election duties. But just three days earlier Attorney Carroll had told the Special Master that the same commissioner could not appear on November 9 because he was scheduled to depart for vacation on Election Day.
Moreover, while Attorney Carroll apparently timely informed Commissioners Ulsh and Bunch of their obligations to appear for their depositions and the hearing per timely deposition notices served by the Secretary upon Attorney Carroll for his clients, he did not timely convey notice of these obligations to Commissioner Shives, who was no less subject to sanctions for failing to appear than her fellow commissioners. Attorney Carroll offered no satisfactory answer for the oversight, and we would be naive to overlook the fact that what distinguished Commissioner Shives from her co-commissioners was her persistent refusal to go along with the County‘s efforts to investigate the 2020 general election as well as her willingness to testify fully to various matters as to which Commissioners Ulsh and Bunch ultimately invoked their Fifth Amendment rights against self-incrimination. Still, Attorney Carroll got what he wanted. His relentless efforts to delay the proceedings, his clients’ failures to be available at the time and place specified in their notices of deposition (Commissioner Shives for reasons outside her control but within Attorney Carroll‘s), and the time constraints we imposed upon the Special Master‘s proceedings made it impossible to conduct the depositions in a way that preserved the Master‘s schedule, with the result that the evidentiary hearings took considerably longer to complete than they might have taken. Attorney Carroll‘s conduct did not much improve during the hearings themselves, which proceeded as scheduled despite his best efforts. Although the Special Master declined to dwell on this in her Report, our review of the record reveals that Attorney Carroll frequently derailed and delayed the proceedings through a combination of dubious objections, lines of questioning on irrelevant subjects, and legal digressions and conspiratorial hypotheses with little discernible bearing upon the matter at hand.156 To their credit, the Special Master
There are credible assertions that Attorney Carroll was taking dictation from Attorney Lambert for substantial periods of the hearing. And this appears to have been an ad hoc work-around to avoid the intended limiting effect of the Special Master‘s denial of pro hac vice admission to Attorney Lambert because Attorney Carroll filed motions to admit her that manifestly failed to conform to the applicable rules—twice. Neither motion acknowledged the sanctions imposed upon Attorney Lambert in the Michigan King litigation or the disciplinary grievance registered by the judge in that case, despite the fact that the governing rule arguably requires the first and unequivocally requires the second. And when repeatedly challenged on these omissions, Attorneys Carroll and Lambert both attempted to gloss over the omissions by noting Attorney Lambert‘s present good standing with the Michigan bar.157
Having said all of the above, it hardly matters that we could find further sanctionable conduct under
In sum, we find that Attorney Carroll, both in tandem with and also independently of his clients, is guilty of relentlessly dilatory, obdurate, vexatious, and bad-faith conduct before this Court and the Special Master, especially, but not exclusively, during these sanction proceedings. Consequently, it would be inequitable that the County alone should bear the Secretary‘s costs. Attorney Carroll, too, should be sanctioned in the form of joint and several responsibility for the Secretary‘s counsel fees during the period for which he shares responsibility for the misconduct.
We will not mark Attorney Carroll‘s liability from the December 17, 2021 inception of the protective order litigation before he assumed the mantle of special counsel. But the County‘s contumacious conduct occurred during Attorney Carroll‘s tenure. Accordingly, we find Attorney Carroll jointly and severally liable with Fulton County for all costs and fees assessed in favor of the Secretary and Dominion from April 13, 2022, the first full day after his and Attorney Lambert‘s appointment as special counsel for the County, through the conclusion of these sanction proceedings, including proceedings necessary to determine the reasonable fees to which the Secretary is entitled.159
As well, we refer Attorney Carroll to the Pennsylvania Attorney Disciplinary Board for further examination of his conduct throughout the litigation of the appeal of our stay order and throughout these sanction proceedings. We neither urge nor assume any particular disciplinary outcome. We opine simply that Attorney Carroll‘s conduct warrants the independent review of his fellow practitioners.
D. Regarding Attorney Stefanie Lambert
Attorney Lambert may be every bit as culpable as Attorney Carroll, at least in the pattern of non-compliance that has led us to impose upon him joint and several responsibility with the County. That said, perhaps ironically, we must conclude that the failure by the two lawyers to convince the Special Master that Attorney Lambert should be admitted pro hac vice precisely because she failed to satisfy the requirements for applying for that status protects
V. Intervenor Dominion‘s Application for Costs and Fees
Shortly after the Special Master submitted her Report to this Court, Dominion as intervenor filed an application to recover its own costs associated with the litigation of the protective order and all that has followed. Dominion argues that it is entitled to recoup its costs because the County‘s initial retention of Wake TSI to inspect the Dominion election equipment violated its contractual rights, and because the County‘s later effort to enable an additional inspection by Envoy Sage, as well as the ultimate inspection conducted by Speckin in violation of this Court‘s stay burdened its own interests and necessitated costly litigation, ultimately for naught. Although Dominion‘s interest lay in proprietary concerns rather than election integrity, its own objectives somewhat aligned with the Secretary‘s, and so Dominion benefitted equally from this Court‘s protective order. Consequently it, too, was prejudiced by the County‘s violation of the protective order.161
Fulton County filed a no-answer letter, offering no rebuttal of Dominion‘s claims. It is not our job to make such arguments in the County‘s stead, and we can think of no distinction between the Secretary‘s and Dominion‘s overarching interests in the County‘s compliance with our order.
Accordingly, we find that Dominion‘s posture and entitlement to sanctions is materially identical to the Secretary‘s, so Dominion also is entitled to recover its counsel fees subject to the terms and limitations described above. It, too, may recover its reasonable counsel fees associated with the protection of the voting equipment incurred since December 17, 2021, through the conclusion of the instant sanction proceedings. And it may seek to recover fees from April 13, 2021 forward from the County and Attorney Carroll jointly and severally.
VI. The Effect of This Court‘s Sanctions Ruling Upon the Pending Appeal
Because we direct the impoundment of the voting equipment implicated by the County‘s Petition for Review, effectuating the same result the Secretary sought when it first asked the Commonwealth Court for a protective order, the interlocutory appeal of the Commonwealth Court‘s denial of the protective order is moot. Thus, neither the jurisdictional question it presented nor the merits of the Secretary‘s
VII. Conclusion
As an independent and coequal branch of the Commonwealth‘s government, the judiciary is as entitled to strict adherence to its mandates as the General Assembly or the executive branch. When an individual or a private or public entity deliberately violates a court order, such violation constitutes a clear and present danger to the effective function of the judiciary, the orderly administration of justice, and the rule of law. When such a violation passes without consequences equal to its gravity, we can anticipate violations of increasing frequency.
Furthermore, such violations not only threaten the authority of the court, but also impose hardships and prejudice upon the party or parties the court intended to protect. This case illustrates the fact that the risk of such harm is neither hypothetical nor abstract. The County‘s persistent efforts to surrender its machines to third parties of dubious qualifications for audits of unclear scope and intent impair resolution of the very legal question the County sought to litigate in the first place—potentially adversely to the Secretary‘s ability to mount a defense against the County‘s allegations. Furthermore, the extensive ancillary litigation these actions forced the Secretary to undertake—beginning with the initial efforts to protect the machines against such incursions and continuing through these sanction proceedings—were necessitated only by such efforts.
No remedy can undo the harm that the County‘s contempt caused its counterparties, nor can any sanction un-compromise the ongoing litigation of the County‘s Petition for Review. The sanctions we impose, informed by the thorough, thoughtful, and persuasive analysis of the Special Master, simply are the next best thing. They will make the parties and their attorneys whole for what proved to be time wasted on securing a protective order that the County ultimately flouted in categorical derogation of the order‘s animating goal. And we can hope that the sanctions will underscore for the County, Attorney Carroll, and other observers that they trifle with judicial orders and time-honored rules and norms in litigation at their peril.
* * * *
In summary, we dismiss the underlying appeal because we find that the impoundment of the machines to follow constructively grants the relief the Secretary sought in that appeal. Regarding impoundment, we direct the parties to confer and agree on a neutral third-party escrow agent to take and retain possession of the voting equipment until further order of court, and we direct the Special Master to see that this task is completed—and to appoint a neutral agent if the parties cannot agree on one. The County is responsible for all costs associated with the impoundment. Any effort to seek access to, or release of, the voting equipment must be directed to the Commonwealth Court, specifically whoever is then presiding over the County‘s underlying Petition for Review against the Secretary.
Finally, Fulton County shall compensate the Secretary for all protective-order and sanctions-related counsel fees in the Commonwealth Court and this Court from December 17, 2021, forward. Attorney Carroll shall be jointly and severally responsible for those fees from April 13, 2022, forward.
Assessing legal fees and the costs of litigation requires a fact-intensive inquiry assisted by the Secretary of State‘s and
The need for expedition in the calculation of fees is perhaps not on par with what the sanctions review itself called for. We trust that the Special Master will fashion a schedule for all necessary proceedings that is compatible with the needs of this case and her other duties.162
Chief Justice Todd and Justices Donohue and Dougherty join the opinion.
Justice Dougherty files a concurring opinion.
Justice Mundy concurs in the result.
Justice Brobson files a concurring and dissenting opinion.
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Notes
Commonwealth v. Stewart, 690 A.2d 195, 197 (Pa. 1997) (cleaned up). This principle will not countenance, and does not allow, the County‘s steadfast refusal to cooperate with discovery requests and its persistent invocation of inapplicable privileges.Exceptions to the demand for every man‘s evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth. Thus, courts should accept testimonial privileges only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth.
See generally N.T., 11/9/2022, at 217-29 (documenting an extensive, contentious colloquy reflecting suggestions of conflict, related unequal treatment of Commissioner Shives relative to Commissioners Ulsh and Bunch, and the degree to which Shives might be prejudiced as the lone Commissioner willing freely to testify at the hearing). When Attorneys Carroll and Lambert were selected by a majority vote of the Commission, Commissioner Shives had no choice but to accept the representation. But Attorney Carroll‘s failure to notify her of her mandatory obligation to attend a duly noticed deposition (and, for that matter, to attend the November 9, 2022 hearing, which she learned about the preceding evening), exposed her to sanctions and even arrest. See id. at 214-15 (regarding the lack of notice).
Relatedly, Attorney Carroll‘s continuing representation of all named Petitioners in these sanction proceedings, in which the Secretary has sought sanctions against the County, Petitioners Ulsh and Bunch individually, and Attorney Carroll, presents an obvious risk of a conflict between Attorney Carroll and his clients. Neither the parties nor Attorney Carroll have defended themselves at each other‘s expense, but that is not to say there were not defenses available to each that could prejudice another‘s interests. We will not take up this question sua sponte, but Attorney Carroll would be wise in future endeavors to address potential conflicts with his client in conformity with his ethical obligations.
Id. at 12 (citing, in the pages that followed,