Two courts, two justice systems

Shock! The U.S. Chamber of Commerce is treated substantially differently by today's federal court system than families with trans kids.

Just before the close of business Tuesday, items appeared on two court dockets with which Law Dork readers are all too familiar that showed how far removed reality is from the ideal of “equal justice under law” engraved above the U.S. Supreme Court’s doors.

The items show — in shocking if predictable contrast — that the U.S. Court of Appeals for the Fifth Circuit is continuing to aggressively and explicitly encourage and protect forum-shopping for the right while federal courts in Alabama are continuing to aggressively investigate judicial concerns about alleged forum-shopping in LGBTQ civil rights litigation.

First on Tuesday, two Trump appointees issued a ruling ordering, yet again, that a conservative ideological challenge to a Biden administration rule must remain within their ultraconservative circuit.

Moments later, LGBTQ civil rights lawyers filed a notice that they had complied with the invasive order from another Trump appointee that he be allowed to review a document that they maintain is protected by attorney-client privilege as part of a two-year judge-shopping investigation.

This issue is not new — I wrote about this issue more generally on June 10 — but Tuesday’s news developments are particularly stark examples of the differences in result that are the consequences of these differences in treatment.

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Heads, the Chamber wins

For conservative forces — here, the Chamber of Commerce fighting the Consumer Financial Protection Bureau’s credit card late fee rule — Judges Don Willett of the U.S. Court of Appeals for the Fifth Circuit has twice issued writs of mandamus to stop U.S. District Judge Mark Pittman, a fellow Trump appointee, from transferring the challenge to the federal court in D.C. Pittman, after the first go-round, harshly criticized the “landmines” laid by the Fifth Circuit.

In Tuesday’s order, Willett’s libertarianism was supported by Judge Kyle Duncan’s Christian nationalism to … protect business interests.

“We again exhort our district court colleagues throughout the circuit to stay venue-transfer orders for a brief time to avoid the frenzy of unnecessarily rushed mandamus proceedings,“ Willett wrote for himself and Duncan.

Judge Catharina Haynes, a George W. Bush appointee, “concur[red] in the judgment,” meaning she was OK with the mandamus order but did not join the Trump-a-palooza.

So I see Don Willett is a Law Dork reader, albeit unrepentant.

Willett, on behalf of him and Duncan, goes on to analyze the venue transfer law and precedent, ultimately holding that Pittman abused his discretion in ordering the transfer.

In part, Willett wrote that he was using the occasion to create new precedent in the circuit — precedent that makes transfer more difficult going forward. As to consideration of “the local interest in having localized interests decided at home,“ he wrote, “we further clarify how to determine whether there are localized interests.”

Specifically, he held, “Localized interests are present when ‘the citizens of the forum have a sufficient interest in the controversy to justify burdening them with jury duty’” — quoting a patent decision source.

So, the Chamber of Commerce of the United States — with its 100-year-old building on the north end of Lafayette Park looking across the park at the White House — is challenging the CFPB’s credit card late fee rule in Fort Worth, Texas, because it listed the Fort Worth Chamber of Commerce as a plaintiff.

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Tails, LGBTQ civil rights lawyers lose

A little more than a 10-hour drive across the South away — across Texas, Louisiana, and Mississippi and up Alabama — lawyers submitted a document to U.S. District Judge Liles Burke that they insist is protected by attorney-client privilege but that he has now twice ordered the LGBTQ civil rights lawyers to turn over more than two years into a judge-shopping investigation.

Burke himself prompted the investigation by questioning in a court order whether parties’ dismissal of two cases challenging the state’s new ban on gender-affirming care for minors and lawyers’ discussion that another challenge would be brought constituted judge-shopping.

The lawyers have noted repeatedly that parties have an unconditional right under Rule 41 to dismiss a case voluntarily — meaning, they could refile it — so long as the defendants took no significant steps not at issue here. What’s more, the third case that was filed was filed on behalf of different plaintiffs altogether.

That has not stopped the federal judges of Alabama to harassing LGBTQ civil rights lawyers for the past two years under threat of sanctions because Burke thought there might be some judge-shopping.

The investigation — which has involved judges from all three district courts in Alabama, many interviews with dozens of attorneys (who were under a gag order not to discuss the investigation), and an extensive “final report of inquiry” by the investigatory three-judge panel — is now back in Burke’s hands to decide what to do with it. He is currently considering whether to sanction any or all of the 11 attorneys who the panel found engaged in misconduct — and appears ready to do so. All of the attorneys, meanwhile, have responded to the allegations — disputing them vigorously on factual and legal grounds, as well as on due process grounds.

In addition to all of that, however, Burke had gone a step further — ordering the attorneys to turn over a Q&A document that some of the lawyers had prepared at the advice of the attorney they hired to represent them before the three-judge panel in its initial hearing on May 20, 2022. Earlier, Burke had gone so far as to threaten the lawyers with jail if they didn’t turn it over.

In a June 14 order, which followed him putting the initial order on hold, Burke found that there was a “prima facie case” that the document could provide evidence that the crime-fraud exception to attorney-client privilege applies to the document. That, he wrote, justified his ordered review of the document. This was, he claimed, solely for the purpose of assessing whether the crime-fraud exception applies. The lawyers, he said, could challenge that decision before he would use the document in his sanction “show cause” hearings scheduled for the end of the month.

As such, the four lawyers subject to the order — Carl Charles, James Esseks, LaTisha Faulks, and Kathleen Hartnett — filed a notice on Tuesday before the close of business, Burke’s deadline, that they had complied.

In the brief filing, they highlighted their continued opposition to Burke’s order and the premise for it, as well as their continued position that they could “seek relief from the Eleventh Circuit Court of Appeals if the Court’s review of the Q&A Document does not confirm—as will be readily apparent—that there has been no crime and no fraud, but rather good-faith preparation for a court hearing.”

Essentially, though, they gave in without going back to the Eleventh Circuit now, they wrote, “to resolve this collateral issue as promptly as possible, and to dispense with the reputationally harmful allegations that they sought legal advice in furtherance of a crime or fraud.”

Additionally, Esseks, Charles, and Faulks filed an objection to Burke’s June 14 order — highlighting some issues raised at Law Dork over the weekend and making a few additional points as well.

So, some of the leading lawyers fighting for LGBTQ rights in the nation — in the face of a national wave of anti-trans and broader anti-LGBTQ legislation — are giving into unreasoned and unreasonable demands that run roughshod over their rights because they are finding it to be the path of least resistance to protecting their reputations.

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A final point

Throughout the Fifth Circuit opinion, Willett and Duncan express overwhelming concern for “parties” and “plaintiffs” and their apparently sacrosanct right to forum-shop — when the Chamber wants to bring a case in Fort Worth fighting a consumer protection rule.

That concern for “parties” and “plaintiffs” is unsurprisingly yet completely absent from any of the Alabama judges’ writings — in the panel report or in any of Burke’s orders thus far — when we’re talking about trans kids and their families fighting anti-trans laws.

That, at the end of the day, might be the most disheartening aspect of all of this.