MONTGOMERY — Eleven attorneys suing the state of Alabama over its Vulnerable Child and Compassion Act (VCAP) engaged in "judge shopping" to try to move the case to a more sympathetic judge, according to a report unsealed this week.
In April 2022, Gov. Kay Ivey signed VCAP (SB184) into law, which prohibits doctors in Alabama from performing transgender operations or prescribing cross-sex hormones and puberty blockers to individuals under 19.
VCAP went into effect on May 8, 2022, but was blocked by U.S. District Judge Liles Burke a few days later.
The 11th Circuit Court of Appeals struck down the injunction in January.
United States District Judges W. Keith Watkins, R. David Proctor, and Jeffrey Beaverstock said in a report unsealed this week that the plaintiffs' attorneys attempted to manipulate which judge heard the VCAP lawsuit. Burke was nominated to his seat by former President Donald Trump and confirmed by the Senate in 2018.
"The Panel is not naïve. Lawyers sometimes consider potential judicial assignments in determining where to file a case, and there may be reasons why in certain cases some judges may be considered more favorable draws than others. So, the Panel does not condemn the lawyers for fretting about their chances of success before a particular judge. Of course, the irony here is that counsel ultimately succeeded before Judge Burke. But in this case, counsel did more than fret. They made plans and took steps in an attempt to manipulate the assignment of these cases," Watkins, Proctor, and Beaverstock said in the report.
Judge Shopping Report by Caleb Taylor on Scribd
Burke set a hearing in May to consider the possible sanctions.
"In the spring of 2022, the chief judges of the United States District Courts for the Northern, Middle, and Southern Districts of Alabama convened a three-judge panel to investigate a series of court filing activity and public statements that gave the appearance of impermissible judge-shopping. The investigation concerned thirty-nine lawyers from three related cases and lasted nearly a year and a half. In its Final Report of Inquiry, the panel unanimously found "without hesitation" that eleven of the lawyers ("the Respondents") had "purposefully attempted to circumvent the random case assignment procedures" for the U.S. District Courts for the Northern and Middle Districts of Alabama—they had, indeed, impermissibly judge-shopped—and directed that its report be served on this Court to "proceed as appropriate."
The Court has reviewed the panel's Final Report of Inquiry, the evidentiary record and sworn testimony before the panel, the Respondents' arguments before the undersigned at the hearings of November 2 and 21, 2023, the Respondents' briefing, and the relevant authorities," Burke said in a filing unsealed this week. "Having considered the foregoing, the Court finds it appropriate to proceed as to all Respondents and hereby orders Melody Eagan, Jeffrey Doss, Scott McCoy, Jennifer Levi, Shannon Minter, James Esseks, Kathleen Hartnett, Michael Shortnacy, LaTisha Faulks, Asaf Orr, and Carl Charles to show cause why they should not be sanctioned for the misconduct outlined in the Final Report of Inquiry and detailed further below."
Left-wing groups the attorneys represent include the Southern Poverty Law Center, GLBTQ Legal Advocates & Defenders, National Center for Lesbian Rights, and the American Civil Liberties Union.
Possible sanctions include suspension from practice in the Northern and Middle Districts of Alabama, censure, public or private reprimand, disqualification, ineligibility for appointment as court-appointed counsel, ineligibility to appear pro hac vice or on behalf of the United States in the Northern and Middle Districts of Alabama, and monetary sanctions.
"Each Respondent is ordered to show cause why he or she should not be sanctioned for attempting to manipulate the random case assignment procedures for the U.S. District Courts for the Northern and Middle Districts of Alabama in violation of controlling precedent, Rule 11 of the Federal Rules of Civil Procedure, and the rules of professional conduct applicable in the Northern and Middle Districts of Alabama," Burkes said in a show cause order.
Judge Shopping by Caleb Taylor on Scribd
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