A few months ago, I discussed the effort by plaintiffs’ lawyers to block disclosure of a three-judge panel’s report on their improper judge-shopping in several cases in which they challenged an Alabama law that bars providing puberty blockers or cross-sex hormones to minors as treatment for gender dysphoria. The panel’s report has now been unsealed.
It’s easy to see why plaintiffs’ lawyers were so eager to block disclosure of the report. The exhaustive 53-page report “concludes without reservation” that various lawyers for the plaintiffs “purposefully attempted to circumvent the random case assignment procedures” of the federal courts in Alabama. Of the 39 plaintiffs’ lawyers involved in the cases, the report determines that eleven lawyers committed various acts of “misconduct” as they “intentionally attempted to direct their cases to a judge they considered favorable and, in particular, to avoid Judge Burke.” In the order in which the report lists them, these lawyers are:
Melody Eagan, Lightfoot, Franklin & White
Jeffrey Doss, Lightfoot, Franklin & White
Scott McCoy, Southern Poverty Law Center
Jennifer Levi, GLBTQ Legal Advocates & Defenders
Shannon Minter, legal director for the National Center for Lesbian Rights
James Esseks, ACLU Foundation
Kathleen Hartnett, Cooley LLP
Michael Shortnacy, King & Spalding
LaTisha Faulks, ACLU of Alabama Foundation
Asaf Orr, National Center for Lesbian Rights
Carl Charles, Lambda Legal
The report reserves special condemnation for Carl Charles, who recently moved from Lambda Legal to … the U.S. Department of Justice, but whose continued employment at DOJ ought now to be in serious jeopardy:
The Panel asked Charles multiple questions about his phone call to Judge Thompson’s chambers. He unequivocally and repeatedly testified that he did not call judge’s chambers. At the May 20 hearing, Charles initially denied several times that he called Judge Thompson’s chambers. (May 20 Hearing Tr. at 178-79, 184-85, 187, 190-91). Initially, the Panel first inquired of Charles generally if he made any phone call to the Middle District. (Id. at 178). Next, the Panel asked if he “call[ed] anyone’s chambers about the assignment of the case.” (Id. at 179). Then the Panel specifically asked him three times whether he spoke to any law clerk of any judge in the Middle District about assignment of Walker to that judge or the potential for a motion for temporary restraining order being filed in Walker. (Id. at 184-85, 187, 190-91). Each time, Charles responded that he never made any phone call and testified that he “was incredibly certain” he would have remembered if he did. (Id. at 191). But, shortly after the Panel read his cell phone number to him, Charles asked if he could correct his earlier answers and admitted that he did call Judge Thompson’s chambers. (Id. at 191-92). Charles’s testimony is even more troubling given that he made this statement while being questioned about his call to Judge Thompson’s chambers: “My pause is only because I am endeavoring to be as candid as possible. I do not recall ever calling any chambers with this request, Your Honor, at any point.” (Id. at 179)….
The only reasonable reading of Charles’s testimony is that, initially, he deliberately misled this Panel about the phone call to Judge Thompson’s chambers – and continued to do so up until the moment in his testimony that it became clear to him that the Panel was fully aware of his call. It is inconceivable that, in light of all the circumstances surrounding the call, Charles genuinely forgot about the phone call to Judge Thompson’s chambers.
The report also states that “Walker counsel’s candor on the whole is concerning” and gives as an example testimony by Esseks that “strains credulity.” (Walker counsel included attorneys from the ACLU of Alabama Foundation, the ACLU Foundation, Lambda Legal, Cooley LLP, and the Transgender Law Center.)
To reiterate what I stated in my initial post: Every plaintiff seeks the best forum for its case, but there are proper and improper ways of pursuing that goal.