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Commentary

Judge Drills Deeper in Judge Shopping Investigation

June 19, 2024

When athletes fight the referee, they can expect to be penalized. Lawyers who fight their judge should expect nothing less. Yet the left-wing lawyers under scrutiny for improper judge shopping continue to stonewall the court’s fact-finding efforts, provoking the presiding judge to press even deeper on the spot that hurts. Most recently, the judge ordered — for a third time — that the lawyers turn over a “Q&A Document” that may suggest the lawyers improperly colluded to mislead the court.

The apparent judge shopping occurred in May 2022, when a who’s-who of pro-LGBT legal groups challenged Alabama’s recently passed law to protect minors from the harmful effects of gender transition procedures. When the case was randomly assigned to Judge Liles Burke, a Trump appointee in the Northern District of Alabama, the litigators first filed a second case in the Middle District of Alabama, then dropped their lawsuits and immediately refiled a new one, vainly hoping to score a judge they believed would be more favorable to their argument.

The federal courts reassigned the case to Judge Burke, however, and he recommended an investigation into whether the lawyers had improperly tried to subvert the court’s random case assignment system through judge shopping. After six months of testimony, questions, and collecting evidence, a panel of three judges from the Northern, Middle, and Southern Districts of Alabama (which did not include Burke) released their final report in October 2023, although it remained sealed until March. The panel concluded “without hesitation” that 11 lawyers involved in the three cases, including Southern Poverty Law Center (SPLC) Deputy Legal Director Scott McCoy, had engaged in improper judge shopping, and they returned the matter to Judge Burke to decide appropriate penalties.

Nearly a year later, Burke is still trying to do just that. In particular, he wants to review a “Q&A document” that may show that the attorneys colluded before their first testimony to the panel. Based on the testimony and evidence already presented, Judge Burke concluded that “a reasonable person could believe in good faith that the Q&A document was the [litigation] team’s effort to get their story straight before anyone appeared in court, and that their story was less than the truth, the whole truth, and nothing but the truth.”

That is perfectly consistent with the panel’s conclusions. The panel concluded that the testimony of all the attorneys could not be believed and was inconsistent. They even caught one attorney in an outright lie. If that turns out to be the case, the document could land the progressive attorneys in even bigger trouble than they are already. Given the likelihood of this possibility, said Burke, “it would be wrong for the Court not to consider it” before delivering the final verdict.

What caught Burke’s attention were certain suspicious circumstances that suggested the lawyers were trying to hide this document from the court. Upon reviewing the record, he discovered that this document had never been turned over to the panel, even though they had asked for it, and the lawyers had fought to keep it hidden.

Only one attorney even mentioned the document in the first round of questioning. Milo Inglehart (a trans-identifying biological female) described a Q&A document “that was circulated … that kind of walked through, like, things they think might come up … just to sort of prep folks.” Only three years out of law school, Inglehart was a junior attorney on the case and was not among the 11 lawyers cited for judge shopping.

When the panel directed other attorneys to disclose their knowledge of this document, they “sought a protective order” to “[prevent] the disclosure of any information … protected by the attorney-client privilege and the attorney work product doctrine” and complained the panel’s investigative role created “an irreconcilable conflict.”

The panel denied the motion, noting that the panel was “comprised of judges, not party-opponents.” They stipulated that the document was only for the judges’ “in camera” review (a Latin legal term meaning the judges would privately review the document in their chambers, without making it part of the public record). While attorney-client privilege can protect certain documents from being presented in a courtroom trial, it does not protect them from the judge viewing them privately. In fact, the judge’s private review is often required for him to declare such documents inadmissible.

However, the attorneys still refused to hand over the document “at the ‘advice and direction of counsel,’ Barry Ragsdale.” In a footnote, Burke noted that the “fairest way to characterize the exchange” would be that “Mr. Ragsdale unilaterally decided that Mr. Inglehart could avoid producing the Q&A Document anyway — even though the Panel had just rejected counsel’s arguments that the attorney-client privilege or the work-product doctrine shielded it from disclosure.”

After two months of non-compliance, the panel excused the attorneys from the obligation to disclose the Q&A document. Soon afterward, they released a 53-page report in which they “unanimously found ‘without hesitation’” that 11 of the attorneys had “purposefully attempted” to engage in improper judge shopping. Evidently, the panel felt no need to obtain the Q&A document to reach this conclusion.

Attached to the motion for a protection order was the declaration of another attorney under investigation, James Esseks, a longtime ACLU attorney involved in a number of culture-changing cases. He claimed the Q&A document was created to assist Ragsdale and senior attorneys prepare for testimony by generating “a list of potential questions and answers based on their collective knowledge of the events” (emphasis in Burke’s order), after which they “shared it with junior members of the team.” Yet Burke found this to contradict Inglehart, who “discussed the Q&A document in response to questions about how he prepared himself (not Mr. Ragsdale or senior Walker lawyers) for the Panel hearing.”

When Burke learned of the Q&A document from the panel’s records, he made his own request for the document, which the progressive attorneys again refused to provide him. “Even though the Supreme Court has long ‘approved the practice of requiring parties who seek to avoid disclosure of documents to make the documents available for in camera inspection,’ and even though that ‘practice is well established in the federal courts,’” they still asserted that attorney-client privilege protected them from showing them to the judge in a private setting. To this end, they appealed to the 11th Circuit, after which “the Court stayed its order, granted the Respondents leave to submit briefs, and heard argument.”

The attorneys argued that they didn’t have to produce the document, since “the Q&A document was a mere discussion of past events.” But, Burke retorted, “in the current posture of this case, the Court cannot be expected to take them at their word …. The Panel has now unanimously discredited these Respondents’ testimony about those past events, and it has found that one of those Respondents intentionally lied, all in testimony about whether there was intentional judge-shopping.”

The attorneys argued “attorney-client privilege and work-product doctrine shield the Q&A Document even from in camera review.” But Burke sought to conduct an in camera review to determine whether the document met the standard for attorney-client privilege, or whether it lost that privilege under the “crime-fraud exception.” This argument presumed the judge’s authority and treated the judge as an adversarial party to the case.

The attorneys argued that “any in camera review of the Q&A Document should be conducted by a special master because they cannot depend on this Court (or any federal district judge in the State of Alabama) to conduct a fair and impartial in camera review.” In fact, district courts “are vested with the ‘sound discretion’ to review

privileged documents in camera and routinely do so,” Burke responded. “A core assumption of our Anglo-American system of justice is that district courts sitting as factfinders are never prejudiced by inadmissible evidence — a point the Supreme Court has been making for at least 175 years.” He added, “ultimately, the Respondents cite no law contradicting this Court’s ability to review evidence without being prejudiced by it, because none exists.”

The attorneys argued that Burke himself is “‘manifestly not’ a neutral arbiter” and “is uniquely susceptible to prejudice” because they tried to steer the case to a different judge. “The allegations in this case are unavoidably personal,” they said, since “there is no dispute that Respondents at times had concerns about Judge Burke.” This is practically an admission of judge shopping, as well as a demand that the federal court system bow to their whims to replace the judge.

When asked, the attorneys could cite no circumstances which undermine “a federal district court’s neutrality or transform it into an adversary,” said Burke. Rather, they were forced to acknowledge that “this Court honors its oath to

‘administer justice without respect to persons, and do equal right to the poor and to the rich, and [to] faithfully and impartially discharge and perform all the duties incumbent upon [him] as [judge] under the Constitution and laws of the United States,’” Burke noted. And he reminded them that, despite their prejudice against him, he “granted the relief they’d sought in the first place” and issued a preliminary injunction against Alabama’s law, which was later vacated by the 11th Circuit.

In other words, the attorneys could only make ridiculous, petty, even personal arguments against disclosing the Q&A document to the judge. After being caught red-handed, these progressive attorneys have showed not one ounce of remorse or repentance but have only sought to further mislead and manipulate the federal court system, treating the judge as their adversary.

But instead of helping their cause, this legal tantrum has only served to drag their misconduct into the open time and again. “The record establishes a factual basis adequate to support a good faith belief by a reasonable person that the crime-fraud exception applies to the Q&A Document on at least two independent grounds,” Burke declared. “The Panel’s disbelief of the … [attorneys’] testimony” further suggests that they “used that document to coordinate materially misleading testimony … for the purpose of frustrating the inquiry into whether those Respondents intentionally tried to subvert the administration of justice by judge-shopping.”

“This is not an ordinary civil case,” Burke added.

“Here, a three-judge panel was investigating whether lawyers intentionally attempted to subvert the administration of justice by judge-shopping, unanimously found that they did, unanimously disbelieved their explanations that they did not, unanimously expressed concern about their candor, and unanimously found that one lawyer lied outright. If this is not enough to open the door for an in camera review of the Q&A document, it is difficult to imagine what would suffice.”

Although “Respondents have fought submission of the Q&A Document at every step,” their time is finally up. Burke ordered them on Friday to turn in the document by Tuesday at 5 p.m., so that he can review it before the final hearings which are set for June 24.

Burke ended with a note of exhaustion. “It is important for the parties and the Court alike that these disciplinary proceedings — which have spanned two years and involved four federal judges, dozens of lawyers, and hundreds of filings — come to rest,” he said. “For that reason, the Court declines to stay the … deadline any further.”

After two years of trying to resist turning over the evidence, the progressive attorneys have only succeeded in annoying the judge who will decide their sentencing. And they must turn over the evidence. Surely by now many of them are regretting the decision to go judge shopping in the first place.

Joshua Arnold is a senior writer at The Washington Stand.