LGBTQ advocates fight sanctions threat in wake of federal judges' slanted report
Part 2: An October 2023 report finding "misconduct" by 11 lawyers who challenged an anti-transgender law is now back in front of the judge who prompted the investigation.
This is Part 2 of a two-part report. Part 1 was published Tuesday.
A little more than a year and a half after Republican Alabama Gov. Kay Ivey signed the state’s ban on gender-affirming medical care into law, a three-judge panel investigating allegations of judge shopping by several lawyers who brought the three cases challenging the law issued its “Final Report of Inquiry.”
During the time between when the panel — made up of three Republican appointees — convened and issued its final report, much had happened out in the world.
Days after the panel told the lawyers of the existence of the inquiry, Judge Liles Burke — a Trump appointee whose actions prompted the inquiry and who is overseeing the still-pending challenge to the ban — issued a preliminary injunction, blocking the state from enforcing the ban as to its provisions addressing puberty blockers and hormone therapy. The provisions remained blocked the entire time the panel was investigation the lawyers. On August 21, 2023, however, the U.S. Court of Appeals for the Eleventh Circuit issued its opinion reversing the injunction. Because the lawyers continued pressing their appeal, the injunction was not ultimately stayed — allowing the ban to go fully into effect while the litigation continues — until January 11 of this year.
In that time, meanwhile, many states had followed suit, passing similar anti-transgender laws in 2023 to the one signed the year before by Ivey and an earlier ban passed in Arkansas. And, challenges proliferated — many brought by the lawyers involved in the Alabama cases and a part of the mostly hidden investigation into their actions in the Alabama cases.
In the midst of that, on October 3, 2023, the three-judge panel of three Republican appointees to Alabama’s federal courts found that 11 of the lawyers being investigated — including some of the nation’s leading LGBTQ civil rights lawyers — had “purposefully attempted to circumvent the random case assignment procedures of the United States District Courts for the Northern District of Alabama and the Middle District of Alabama” with their actions voluntarily dismissing the first two challenges to the law and filing the third challenge.
All 11 of those lawyers have vigorously disputed the findings, the panel’s failure to cite the proper legal standards to justify their findings, and the lack of due process involved in the investigation in their court filings. None of the attorneys — or the lawyers they have retained to represent them in the investigation — responded to requests for comment on Tuesday.
A month after the “Final Report of Inquiry” was issued, the inquiry was reassigned to Burke. First, there was a flurry of litigation over whether the report and supporting documents should be kept sealed at least until final decisions were made about the consequences of the report and whether the lawyers would face any sanctions. He rejected that request, ordering the report and a number of other documents to be unsealed in March.
Ultimately, he also ordered the 11 attorneys, essentially, to tell him why they should not face sanctions for the conclusions reached by the panel. That show cause order led to questions, as it continued to provide vague descriptions of what rules exactly the lawyers were being accused of violating. Eventually, Burke issued individual orders as to all 11 lawyers.
The lawyers filed their responses in mid-May, arguing their many reasons why sanctions are unjustified and inappropriate here, and it appeared the next step would be hearings currently scheduled for the last week of June.
And yet, on May 17, Burke issued an order that four of those 11 lawyers, as well as another lawyer from the original group of 39 lawyers involved in the investigation, turn over a Q&A document to him — which the lawyers have never turned over because they argued to the panel that it is protected by attorney-client privilege — by the end of the next business day.
In this order, Burke also threatened the attorneys with being taken into custody if they did not comply, prompting a briefly filed and later withdrawn mandamus petition at the U.S. Court of Appeals for the Eleventh Circuit — and the first report on this matter at Law Dork.
When Burke, at least temporarily, backed off on that request, the lawyers withdrew their appellate request. Since then, the docket has been fairly quiet since a May 28 hearing that Burke held about the Q&A document.
Later this month, though, Burke is scheduled to consider whether to sanction some of the leading LGBTQ civil rights lawyers in the country for actions that they say are allowed, as a result of a report that they argue was written by a panel applying the wrong legal standards and following an investigation that violated the lawyers’ due process rights.
The show cause hearing where Burke is set to consider those sanctions is currently set to end on June 28 — the 55th anniversary of the beginning of the riots at the Stonewall Inn.
The report
In the course of its investigation, the three-judge panel of all Republican appointees dismissed 29 lawyers from the investigation, finding “no evidence” against them, and leaving 11 lawyers whose actions were addressed in the final report:
Regarding the three lawsuits — Ladinsky, filed April 8, 2022, in the Northern District of Alabama; Walker, filed April 11, 2022, in the Middle District of Alabama; and Eknes-Tucker, filed April 19, 2022, in the Middle District of Alabama — the panel ultimately focused on six aspects of the lawyers’ actions:
the lawyers’ decision to mark Walker as being related to an earlier case that had been heard by Judge Myron Thompson. The earlier case was marked closed, but remained pending on appeal, and any remand would return the case to Thompson.
a call placed by a lawyer on the Walker team to Thompson’s chambers about the forthcoming motions in the case, which counsel believed at the time would be heard by Thompson.
a call between the Walker and Ladinsky teams on April 13, 2022, about the potential for the cases being consolidated.
calls between the lawyers on April 15, 2022, after Walker was transferred to the Northern District and assigned to Burke earlier in the day and particularly after Judge Annemarie Axon, who had been assigned Ladinsky, transferred it to Burke late on a Friday afternoon of a holiday weekend.
the lawyers’ responses to the transfer, including questions raised by the lawyers on calls about why it happened and the ultimate decisions to dismiss both Walker and Ladinsky.
the filing of the third lawsuit, Eknes-Tucker, including its having been filed in the Middle District. Despite that, it was quickly transferred to Burke.
Based on the panel’s interpretations of these actions, it concluded that the lawyers “made plans and took steps in an attempt to manipulate the assignment of these cases.” This resulted in a finding “without hesitation” that the 11 lawyers “purposefully attempted to circumvent the random case assignment procedures of the United States District Courts for the Northern District of Alabama and the Middle District of Alabama.”
The panel delineated 10 specific areas where it found “misconduct” by the lawyers — including marking Walker as related to the earlier case, “engaging in numerous and wide-ranging discussions about how judges were favorable or unfavorable in the context of deciding whether to dismiss and refile” the cases, “suddenly” dismissing the two cases after conference calls where Burke being a “bad draw” was discussed, “abruptly stopping their pursuit of emergency relief” by dismissing the original cases, and “claiming” that dismissing the first cases was “because” Burke set the in-person status conference in Walker and Axon transferred Ladinsky.
Throughout the report, however, the panel took its fully informed view of the situation and practices in the state’s federal courts from the judge’s vantage-point as obvious fact and also examined many of the questions the lawyers had — questions that explain most, if not all, of their actions — through the benefit of hindsight.
Examples of this litter the report, but nowhere is the potential error that these elements infuse into the report more clear than in the section about Axon’s transfer of Ladinsky.
From the report: “The Panel explained at the May 20 hearing that Judge Axon transferred Ladinsky because she was then ‘on day four of what was scheduled to be a two-plus-week criminal trial, an 18-defendant case with four defendants at trial, and quite a lot of moving parts in that criminal case.’”
It then acknowledged: “Every attorney who testified on the matter stated that they were not aware of Judge Axon’s criminal trial on April 15 or that the trial was a reason for transferring the case to Judge Burke.”
And yet, two pages later, the panel nonetheless concluded that section as such:
Not everything is so obviously slanted, but even aspects of the report that look worse for the lawyers fade away once reviewed in the broader context — and in light of the lawyers’ responses to the claims made by and conclusions drawn by the panel.
The judge
The report itself was, as I noted in Part 1, just the beginning of another phase.
After Burke was given the report and allowed to proceed as he wished, on February 21, he announced in an order that the 11 lawyers were to “show cause” why they should not face sanctions because of the actions found in the report.
Shannon Minter, James Esseks, and Jennifer Levi are among the most senior lawyers in the LGBTQ legal advocacy movement. Kathleen Hartnett is a former Obama White House lawyer who is a partner at a major law firm, and Michael Shortnacy was and is a partner at a major firm as well. Scott McKoy, LaTisha Faulks, Asaf Orr, and Carl Charles worked for some of the key organizations fighting the anti-trans law. Melody Eagan and Jeffrey Doss were two of the Alabama lawyers providing essential insights into the legal system where this anti-trans law had just been passed.
And yet, with the lopsided, hindsight-is-20/20 report from the panel in his hands, Burke appeared ready to sanction the lawyers.
“The three-judge panel put the Respondents continually on notice that it was investigating purposeful attempts to manipulate the random case assignment system in the Northern and Middle Districts of Alabama,” Burke wrote, ordering all of the lawyers to show why they shouldn’t face sanctions for “attempting to manipulate the random case assignment procedures” and “misrepresenting or otherwise failing to disclose key facts during the panel’s inquiry.” Additionally, Charles was ordered to “show cause why he should not be sanctioned for deliberately misleading the three-judge panel” for failing to initially recall the call to Thompson’s chambers. Finally, Charles, Esseks, and Faulks were ordered to explain why they should not face sanctions for “failing to seek or secure their clients’ consent … before dismissing Walker.“
That initial show cause order led to requests for clarification and objections.
In the meantime, however, and before he actually ruled on the sanctions — or the motions to clarify the show cause order — Burke decided to open the report up to the public — before the lawyers were able to file their responses. He did so in an order on March 29, in which he concluded that “the Court now finds that the public’s right to view the Final Report of Inquiry outweighs the Respondents’ private interests in keeping it sealed.”
With that, a few news stories appeared, but I held back — knowing that I wanted a complete report and knowing that the lawyers were only going to speak through their filings in the case, at least while sanctions are on the table. So, I read the report, marked it up, and awaited the responses.
The responses
After making the report public, the next week, on April 5, Burke begrudgingly granted the request for clarification — and later issued independent show cause orders (that still included vague sections) for each of the 11 lawyers. Burke filed the individual show cause orders on May 1, and the lawyers filed their responses between May 10 and May 13.
Combined, the responses take up nearly 400 pages. I read them all in recent weeks, and as I noted at the start of this saga, the key matter is this: The past two years of investigation have been over the filing of Rule 41 notices that allow voluntary dismissal of cases for any reason at all.
As Minter and Levi’s response noted:
The law in the Eleventh Circuit, as elsewhere, is that “Rule 41(a)(1) means precisely what it says” and grants “an unconditional right to dismiss” “by notice and without order of the court at any time prior to the defendant’s service of an answer or motion for summary judgment.”
In the case cited by the panel to justify an investigation into Rule 41 dismissals — in a situation arguably much more extreme than this — the U.S. Court of Appeals for the Second Circuit reversed the district court that meted out sanctions.
In that case, the court there held, “inherent-power sanctions are appropriate only if there is clear evidence that the conduct at issue is (1) entirely without color and (2) motivated by improper purposes.” Being without “color,” the court noted, means “it lacks any legal or factual basis; it is colorable when it has some legal and factual support, considered in light of the reasonable beliefs of the attorney whose conduct is at issue.”
As Shortnacy’s response noted bluntly, “[N]either the Panel nor this Court has addressed the dispositive impact of Rule 41 on these proceedings.”
In short, this should not be happening. At all.
More than that, in the responses, the lawyers explain — in context and in light of the facts as they understood them at the time — how what they did wasn’t judge shopping; how, even if it was judge shopping as described, that is not against any rule; and, finally, how, even if it was judge shopping and against any rules, sanctions are not appropriate in this instance. (No, that’s not weird; it’s just good lawyering.)
Each lawyer also responded to the show cause question raised by Burke about “misrepresenting or otherwise failing to disclose key facts” during the inquiry — itself a step beyond the panel’s actual misconduct findings and the cause of another source of due process concerns.
For example, as Harnett’s response put it, “Due process requires that the Court provide fair notice to Kathleen of what conduct may give rise to sanctions. Neither Paragraph III(b) nor the Report provide reasonable notice of a purported misrepresentation or nondisclosure by Kathleen.” Addressing the language in the individual show cause order directed at her, her response added, “Respectfully, Kathleen is left to guess at what the Court may consider to be ‘matters impacting her credibility’ or ‘discrepancies’ between her testimony and that of other Respondents.” (Nonetheless, her response, like the others, attempts to do so.)
The response from Charles, Esseks, and Faulks also fully responded to the question about their dismissal decision:
“The Supplemental Orders appear to be premised on the assumption that the professional conduct rules required Respondents to expressly discuss dismissal with their clients before dismissing Walker without prejudice. They do not, as there is no rule that an attorney must obtain client consent prior to dismissing a complaint without prejudice. To the contrary, attorneys are impliedly authorized to take actions consistent with their client’s objectives, including a voluntary dismissal that does not prejudice their client’s ability to pursue their claims further.“
Charles’s separate response extensively addresses his answers during the panel’s investigation, as well as the larger picture of his full answers — which immediately look very different than the panel’s claim that he “deliberately misled” them. Additionally, his response applies his conduct to the rules in explaining why sanctions are not appropriate. It is a stark example of an interaction for which the panel excises all context in a way that — far from considering the lawyer’s perception of the situation — appears to be seeking to find fault.
As with the report, though, I cannot delve into all of the responses or arguments here. I do want to highlight a response’s handing of Axon’s transfer of Ladinsky to show in one concise example how the panel’s approach tilted reality and made it all but impossible for the panel not to “find” misconduct repeatedly.
From Eagan and Doss’s response:
Ms. Eagan’s and Mr. Doss’s concerns about the direct assignment of Ladinsky to this Court were objectively reasonable. The panel attempts to downplay Ms. Eagan’s and Mr. Doss’s worries, but both lawyers—Ms. Eagan having been practicing in the Northern District since 1994 and Mr. Doss having been practicing in the Northern District since 2009, including a clerkship in the Northern District—do not recall seeing a case directly assigned, without a motion and outside the random assignment process, like Ladinsky was. A review of the Northern District’s records confirms this.
As Eagan and Doss’s response put it, “In determining that the only ‘logical conclusion’ was that Your Honor’s identity was the sole reason for the dismissal, the panel simply chose to disregard or disbelieve the testimony of all witnesses who testified on the topic.”
And yet. The panel did so, and, from what he has done thus far, Burke has behaved the same way.
Now, though, Burke has the benefit of the clear arguments made against sanctions as put forth in the responses. The responses detail the due process questions raised throughout the investigation, the panel’s failure to enunciate let alone meet the appropriate legal standards for issuing its misconduct findings here, the appropriate standards for Burke in reviewing the report and drawing conclusions from it, voluminous factual disputes, and much more.
Where does that leave us?
I came into this with what I thought were legitimate questions about what happened with the cases here. After reading through everything that is available, however, I am convinced these lawyers have faced a substantial injustice — and all LGBTQ people have faced even further burdens unknowingly over these past two years because some of our brightest, most dedicated lawyers have been forced to deal with this investigation.
As Eagan and Doss’s response stated, “This record does not show bad faith. But ‘[t]he key to unlocking a court’s inherent power is a finding of bad faith.’”
As such, they argue, this all should end here.
Burke could, and should, step back from this before he inappropriately subjects these lawyers to even more difficulty.
We will see what Burke does — and where that leads — in the coming weeks. As the matter is ongoing, this is not the final report on this. But, I wanted to make sure that someone spent the time and energy laying it all out now, and I am glad that I was able to do so here.
Regardless of what happens next, though, what has already happened is instructive for all of us — especially lawyers.
At the end of the day, there is virtually nothing stopping federal judges, if enough of them are aligned in their purpose, from “unlocking” a multiyear, secretive investigation into dozens of lawyers — gagging them while it is ongoing — by citing their “inherent power” as federal judges to do so.
That should greatly concern us all.
This is Part 2 of a two-part report. Part 1 was published Tuesday.
Excellent again, Chris. I thank you for the very thorough backstory and journey up to where we are now. Superb and clear as a bell. Many thanks!
"From Eagan and Ross’s response:" and "As Eagan and Ross’s response put it"
Should be Doss not Ross.