Eleven attorneys at major LGBTQ rights groups and law firms engaged in impermissible judge shopping to lead litigation away from a conservative judge over Alabama’s ban on gender-affirming health care for transgender youth, a three-judge panel has concluded in a new unsealed report.
U.S. District Judge Liles Burke, a Republican appointed by former President Donald Trump in Montgomery, unsealed the report Tuesday and ordered a group of attorneys and plaintiffs involved in the lawsuit to explain why he should not sanction them.
The 50 page report Burke had concerns that lawyers had dropped two separate cases of the Republican-led state law after being assigned to it, but announced plans to challenge it again.
The panel’s report, which commissioned three judges from each of Alabama’s district courts to investigate the matter, concluded that attorneys “purposefully attempted to circumvent the random case assignment procedures” for the U.S. District Courts for the Northern and Middle Districts of Alabama.
They did so because they saw conservative Judge Burke as a “bad draw” who would likely rule against them. However, he did not and ordered the execution of the lawalthough the 11th US Circuit Court of Appeals restored in August.
Attorneys include LGBTQ rights advocates such as Carl Charles, who recently left Lambda Legal to join the U.S. Department of Justice; James Essex of the American Civil Liberties Union; Jennifer Levy of GLAD; and Shannon Minter and Assef Orr of the National Center for Lesbian Rights.
The others worked for three law firms that litigated pro bono: Melody Eagan and Jeffrey Doss of Lightfoot, Franklin & White; Michael Shortnacy, who was at King & Spalding and is now with Shook, Hardy & Bacon; and Kathleen Hartnett of Cooley LLP.
These attorneys face potential sanctions in the Northern and Middle Districts of Alabama, ranging from disbarment to monetary sanctions. Burke ordered Lawyers will attend hearings in May to resolve the issue.
He said their illegal conduct included prohibitions against “attempts to manipulate or circumvent the random appointment of judges” in courts, and that the court could punish lawyers for malicious conduct that “abuses the judicial process.”
In a statement, the ACLU said it was “deeply concerned about the chilling effect this order could have on future attempts to litigate civil rights claims in Alabama and beyond.”
The National Center for Lesbian Rights said it held itself to the “highest ethical standards,” and GLAD said it was “extremely proud of our attorneys and the critical work they do.” Jennifer Pizer, Lambda Legal’s chief operating officer, said she disagreed with the panel’s characterization of the events and stood by her attorneys.
Lightfoot said he was “confident that our attorneys acted in good faith and without intent to violate any statute, rule, or established case law,” and Cooley said his attorneys “discharged their responsibilities appropriately and acted in good faith in this matter.”
Other attorneys did not respond to requests for comment.
Burke released the report a week after the Judicial Conference of the United States accepted a new onea discretionary policy aimed at preventing judge shopping by assigning cases challenging state or federal law to an entire district, rather than just within a smaller division or courthouse.
According to the report, on April 8, 2022, plaintiffs represented by the National Center for Lesbian Rights, GLAD and other groups filed a lawsuit in the Northern District to challenge Republican Governor Kay Ivey’s ban. signed into law that month.
A separate lawsuit was filed April 11 in the Middle District of Alabama by attorneys for the ACLU and other groups.
The ACLU sought to assign the case to U.S. District Judge Myron Thompson, an appointee of Democratic former President Jimmy Carter, listing it as “related” to a closed 2018 case in which he ruled in favor of transgender rights.
Instead, the case was assigned to another judge, who, with the parties’ final agreement, transferred the case to the Northern District, where the case was first assigned to U.S. District Judge Annemarie Axon.
Both cases were later transferred to Burke by U.S. District Judges W. Keith Watkins, R. David Proctor and Jeffrey Biverstock, appointed by Republican presidents, causing consternation and “panic” among the plaintiffs’ lawyers.
Both legal teams voluntarily terminated their cases. NCLR, GLAD, and interlocutor then filed a new suit with new plaintiffs in the Middle District to avoid the appearance of judge shopping and to avoid Burke.
Instead, the case was reassigned to Burke at the direction of U.S. District Judge R. Austin Huffaker.
The case is Boe v. Marshall, U.S. District Court for the Middle District of Alabama, No. 22-cv-184.