Missouri's appointed attorney general sued over anti-trans "emergency" rule

Without court action, the rule severely restricting gender-affirming medical care would go into effect Thursday. [Update: A hearing is set for Wednesday.] Also: SCOTUS news — and Law Dork in the news.

Republican Missouri Attorney General Andrew Bailey was sued in Missouri court on Monday to halt his emergency rule that severely restricts gender-affirming medical care for people of all ages before it is scheduled to go into effect on Thursday.

Arguably the most extreme ban on transgender health care issued in the country thus far, the rule also stands out for its having been proposed by an official never elected to his job — or any job — and having been issued through reliance on a consumer fraud law.

A hearing on a request to stop the rule from going into effect is set for Wednesday afternoon.

“Never before has an Attorney General sought to regulate the practice of medicine, let alone in this way, in Missouri,” the lawsuit claimed. “Yet, usurping authority and powers outside those of his office, [Bailey] claims expansive authority under the [Missouri Merchandising Practices Act] to regulate the practice of medicine.”

Bailey was appointed to the job of attorney general last fall by Republican Gov. Mike Parson, for whom Bailey had worked as general counsel. He took office in January.

The ACLU of Missouri, Lambda Legal, and lawyers with Bryan Cave Leighton Paisner sued Bailey on Monday on behalf of a medical practice, therapist, trans teenagers and their parents, and a trans adult. The lawsuit aims, ultimately, to stop his anti-transgender “emergency” rule.

They argue that the provision does not meet the requirements for an emergency rule, that Bailey acted in conflict with state law, and that the rule is “arbitrary and capricious.”

First, however, they are seeking a temporary restraining order (TRO) to keep the rule from going into effect this week.

In their arguments for the TRO, the lawyers argue:

The Attorney General’s action violates Missouri’s constitutionally established separation of powers and is an attempt to legislate behind closed doors through Missouri’s limited emergency rulemaking procedures set forth in RSMo § 536.025, without any input from the Missourians the Rule will affect most.

And, as to those effects, they wrote later:

It places draconian restrictions on the ability of, and, in many circumstances categorically prohibits Missourians from receiving necessary, effective and safe gender-affirming medical care. These restrictions are entirely divorced from and in contravention of the expert opinions of learned medical providers and the treatment protocols for gender dysphoria recognized by the leading medical associations in the United States.

On Tuesday, St. Louis Circuit Judge Kristine Kerr scheduled an in-person hearing on the temporary restraining order request for 1:30 p.m. CT Wednesday.

Law Dork will monitor future developments.

This story has been expanded and updated since initial publication, with the final update at 1:30 p.m. ET Tuesday.

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Monday at SCOTUS

The Supreme Court, in its Monday orders, announced that it will be hearing a pair of cases next term addressing the question about whether a public official can block people from social media accounts on which the official communicates about public matters.

As I noted this morning, John Elwood, a partner at Arnold & Porter who previously worked in both the Solicitor General’s Office and the Office of Legal Counsel at the Justice Department, had written about this pair of cases before the court took them up — arguing that it was likely the court would take one or both cases to address this issue because there is a circuit split (even between the two grants) and “the issue unquestionably recurs frequently.”

In fact, this case almost came before the justices regarding former president Donald Trump’s blocking habit, but the court ultimately tossed that case once Trump was out of office — and vacated the lower court’s ruling against Trump.

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The court also announced on Monday that the justice will not be taking up the death penalty case of Kevin Burns out of Tennessee. Justice Sonia Sotomayor dissented, joined by Justices Elena Kagan and Ketanji Brown Jackson.

Burns was convicted of felony murder — meaning he was convicted of having committed a felony that led to someone getting killed, not necessarily of having killed someone himself — for his role in a robbery. During the sentencing phase, however, the state presented two witnesses to advance a narrative that Burns had actually killed one of the two people killed during the robbery. Burns’s counsel did not challenge this, even though, as Sotomayor wrote on Monday, “Burns, in state postconviction proceedings, demonstrated that counsel could have done so by offering powerful impeachment evidence of the two eyewitnesses and introducing evidence that Burns did not shoot Dawson.”

In short, Sotomayor laid out a story of horrible lawyering at trial, insufficient state court review, and — as Sotomayor put it — “indefensible” legal reasoning at the U.S. Court of Appeals for the Sixth Circuit. “The error in the Sixth Circuit’s decision leaps off the page,” she wrote, detailing how “two fundamental errors of law” formed the basis for the appeals court’s decision against Burns.

Nonetheless, the court refused to vacate the decision below or take up the case — or explain why not. Instead, the three Democratic appointees were left arguing into the wind. As Sotomayor concluded:

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Out of court, there was some news Monday on the “Justice Clarence Thomas’s growing ethics scandals” front.

Thomas had previously issued a statement that he “was advised that this sort of personal hospitality from close personal friends, who did not have business before the Court, was not reportable,” as part of his explanation for his lack of disclosure regarding billionaire Harlan Crow’s “hospitality” to the justice and his wife.

Bloomberg’s Zoe Tillman reported on Monday, however, that that claim that Crow “did not have business before the Court” posed a problem.

“[I]n at least one case, Crow did.”

As Tillman, my old BuzzFeed News colleague and friend, wrote:

In January 2005, though, the court declined to hear an appeal from an architecture firm that wanted more than $25 million from Trammell Crow Residential Co. for allegedly misusing copyrighted building designs. When the court issued a one-sentence order denying the petition, there were no noted recusals — indicating that Thomas participated — and no noted dissents. 

Thomas did not comment to Bloomberg on the story.

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Law Dork in the media

Over the weekend, there was, of course, lots of talk about the Supreme Court’s Friday evening mifepristone decision.

I was on MSNBC on Saturday evening, joining Alicia Menendez’s American Voices to discuss what happened and what comes now, joined by MSNBC’s Lisa Rubin.