(dissenting).
I would sustain the writ on the ground the underlying “consent decree” is void for gross violation of public policy and Iowa law. Therefore, in my view, trial court had no jurisdiction to impose punishment for violation of its terms, nor award attorney fees to enforce it.
However much we may empathize with trial court’s understandable reluctance to referee an exotic and lengthy trial, the court permitted the parties to implicate it in a bizarre and overt scheme to violate our long-standing rules relating to judgments, a result that should not be condoned by enforcing some of the provisions of the instrument while ignoring others.
The “consent decree” was nothing more than a paper signed by the parties to the initial dispute, made a “decree” by the signature of the judge beneath a one-line endorsement. Obviously, the instrument was never intended to be filed and entered of record by the clerk of court as provided by Iowa Rules of Civil Procedure 226 and 227. “An entry in either or both the judgment index or combination docket which refers to a judgment is not sufficient to comply with the requirement that a judgment be entered of record.” Moreno v. Vietor, 261 Iowa 806, 811, 156 N.W.2d 305, 308 (1968).
Mr. Goldstein, one of the attorneys for defendants in the underlying action, brought the “decree” to the clerk on July 22, 1983, and asked that it be stamped “filed” and returned to him without entering it of record.1 The clerk testified without challenge that on the same day the court also told her it was not to be filed of record. Months later Mr. Goldstein brought the paper back and requested that it be filed. No judge ever ordered the document filed or countermanded the court’s July 22, 1983, instruction.
Article X of the “decree” provides further proof of the parties’ intent. In relevant part it states:
X. Non-Disclosure
Any ... consent judgments ... shall not be publicized or used by any party and others for legal, nonlegal, or extralegal purposes anywhere in the world.
I suggest a “decree” that the parties, and apparently the court, contemplated would be hidden from public view in violation of rules that have the force and effect of statutes, Kutrules v. Suchomel, 258 Iowa *1811206, 1210, 141 N.W.2d 593, 596 (1966), and was in fact so hidden until one of the parties found it advantageous to produce it, should be declared void and of no effect as a matter of public policy, see Scieszinski v. City of Wilton, 270 N.W.2d 450, 452-53 (Iowa 1978) (Petition filed with clerk but sealed under ex parte court order intentionally bypassing the requirement the original notice be contemporaneously delivered to clerk with directions for service will not serve to toll the statute of limitations.). Unfortunately the message of the majority opinion is that one of the parties should be rewarded. This result of course invites future litigants to pursue the same course.
HARRIS, McGIVERIN, and LAVORATO, JJ., join this dissent.
. It is more than anomalous that today the court condones the deliberate withholding of a decree from the record, an act for which we have disciplined lawyers. Thus in Committee on Professional Ethics & Conduct v. McGrevey, 395 N.W.2d 894 (Iowa 1986), we wrote:
We agree with the commission’s conclusion that McGrevey violated DR7-102(A)(3). Once signed by the district court, the order "was no longer a private paper and became a court document in the public domain." Committee on Professional Ethics and Conduct v. Hurd, 325 N.W.2d 386, 390 (Iowa 1982). The court entrusted McGrevey to file the order. Id. By his delay in filing it, he "concealed or knowingly failed to disclose that which he was required by law to reveal." Iowa Code Prof. Resp. DR7-102(A)(3).
Id. at 896.