Procedural dispute dominates hearing over alleged judge shopping

The Frank M. Johnson Jr. Federal Building and United States Courthouse in Montgomery, Alabama, seen on January 24, 2023. (Brian Lyman/Alabama Reflector)

A federal judge and an attorney for lawyers accused of judge shopping in a gender-affirming care lawsuit argued at length Thursday over whether the lawyers could withdraw an original filing in the case.

The crux of the allegations involve the attorneys moving to dismiss their original suit, which sought to overturn Alabama’s ban on gender-affirming medical care for transgender youth under the age of 19. The dismissal came after the case was assigned to U.S. District Judge Liles C. Burke, who has suggested the lawyers’ actions amounted to judge shopping, which he says is improper in the U.S. 11th Circuit Court of Appeals.

Speaking to Burke on Thursday, attorney Barry Ragsdale, representing some of the accused attorneys, or respondents, said that they had the “absolute, unconditional, unfettered” right to dismiss the case under Rule 41 of the Federal Rules of Civil Procedure.

The rule says that “the plaintiff may dismiss an action without a court order by filing: (i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or (ii) a stipulation of dismissal signed by all parties who have appeared,” according to the Legal Information Institute.

Burke, in a back and forth with Ragsdale, expressed his disagreement and said at one point that the rule applied to plaintiffs, not their attorneys.

“Is this just a public policy argument?” asked Burke.

Ragsdale said it wasn’t but it might be a judicial policy one. Burke said that the situation is where they are.

Gov. Kay Ivey signed a law in 2022 that made it a felony, punishable by up to 10 years in prison, for a physician to prescribe puberty blockers and hormones in gender-affirming care for  youth under the age of 19. Shortly after the legislation was signed into law, two lawsuits, known as Walker and Ladinsky, were filed.

In the coming days, the cases were linked and assigned to Burke, after a series of reassignments. The plaintiffs eventually dismissed both lawsuits. The Walker attorneys, many of whom are represented by Ragsdale, did not refile. The Ladinsky attorneys refiled a new case titled Eknes-Tucker. That case, which was also assigned to Burke, is listed in court filings as Boe et al.

Burke, a Trump appointee, blocked the state ban on puberty blockers and hormones in May 2022, ruling that the law violated parents’ rights to make decisions for their children and that the state had failed to show the drugs did harm. In 2023, a three-judge panel of the 11th Circuit overturned Burke’s ruling, saying there was no fundamental right to gender-affirming care.

The plaintiffs in the case and the U.S. Department of Justice, which intervened on their behalf, are currently seeking a stay in light of the Supreme Court agreeing to take up a case challenging a similar ban in Tennessee.

Burke alleges that the first round of cases were dismissed because they were assigned to him. A three-judge panel compiled a report in October that said that “testimony and evidence convince the Panel that Walker , Ladinsky , and Eknes-Tucker counsel intentionally attempted to direct their cases to a judge they considered favorable and, in particular, to avoid Judge Burke.”

In the hearing Thursday, the parties also discussed a 2003 case in the 11th Circuit, U.S. 11th Circuit Court of Appeals Case, a three-judge panel denied a writ of mandamus to petitioners after they were ordered to remove an attorney due to his connection to U.S. District Judge U.W. Clemon.

“ In these consolidated cases, we are called upon to consider the appropriate course of action where a party is accused of contriving to engineer the recusal of a district judge by hiring a close relative of the judge as counsel,” wrote U.S. Circuit Judge Robert Lanier Anderson.

In Re BellSouth Corp. , petitioners sought a writ of mandamus compelling the district court to remove its order to remove an attorney, a nephew of Clemon, and his law firm from representing a company in a putative class-action race discrimination suit. The three-judge panel did not find they met the burden of writ of mandamus.

“[United States District Judge C. Lynwood Smith] began by recognizing that, while the Due Process Clause guarantees a defendant in a civil case the right to legal representation, there is no absolute constitutional guarantee of the attorney of one’s choice,” Anderson wrote. “Among the restraints on a party’s choice of counsel, he recognized, is that an attorney may not be hired as a device to manipulate the orderly administration of justice. Although a court normally must find ‘compelling reason’ to override a party’s choice of counsel, the court found that a sham hiring for the purpose of forcing the judge’s recusal is a sufficiently compelling reason.”

Ragsdale said that the case had three different opinions and was a 2-1 decision but formed the basis for Burke’s language. He also said that his clients did not re-file, which Burke acknowledged.

Ragsdale said that no one has denied that Burke was a factor of dismissal, but noted that the attorneys have cited other reasons for moving for the dismissal.

Earlier in the hearing, attorneys representing some of the respondents submitted the docket carried by U.S. District Judge Annemarie Axon, also a Trump appointee, at the time the lawsuit was filed in April 2022. Axon had been one of the previous assignments of the Ladinsky case.

According to the report, Axon transferred the case to Burke because she was four days into a jury trial expected to take longer than two weeks, and the pending transgender cases were time sensitive.

Christian King, an attorney for Jeffrey Doss and Melody Eagan, said the reasoning for the transfer was not clear because at the time, the jury looked like it was coming back in a timeframe that would have worked.

Burke said he went through the whole filing and found jury instructions, along with other documents, that indicated that Axon could have been out for much longer. Burke said that filing the docket looked like an attempt to “smear” the court.

“I have a lot of questions about what the intent of this was,” he said.

He said that pointing to only some of the parts of the docket that supported their interpretation of the case was misleading. He had to go through the docket to find other relevant pieces of information that he said did not support their narrative.

Burke also questioned several more of the respondent attorneys directly, telling two of them that they are unlikely to be sanctioned, as of the start of the questioning on Thursday.

Burke acknowledged that some of the attorneys had apologized to him, and he thanked them.

Attorney respondent Scott McCoy said that he regretted language implying that Burke reached out for the case, due to his understanding of Burke as conservative.

“Do you know how much I regret drawing this case?” said Burke.

The hearing is expected to continue on Friday.

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