“Do you know how much I regret drawing this case?”

“Do you know how much I regret drawing this case?”
“Do you know how much I regret drawing this case?”

A federal judge and an attorney for lawyers accused of “judge shopping” in a gender-affirming care lawsuit argued at length Thursday over whether the attorneys could withdraw an original motion in the case.

The crux of the allegations is that the lawyers sought to dismiss their original lawsuit, which sought to overturn Alabama’s ban on gender-affirming medical care for transgender youth under 19. The dismissal came after the case was assigned to U.S. District Judge Liles C. Burke, who suggested that the lawyers’ actions amounted to judge shopping, which he said is impermissible in the U.S. Court of Appeals for the 11th Circuit.

In a conversation with Burke on Thursday, attorney Barry Ragsdale, who represents some of the defendants, said they had an “absolute, unconditional and unrestricted” right to dismiss the case under Section 41 of the Federal Rules of Civil Procedure.

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According to the Legal Information Institute, the rule states: “The plaintiff may dismiss a lawsuit without a court order by (i) filing a notice of dismissal before the opposing party files either an answer or a motion for summary judgment; or (ii) a dismissal agreement signed by all parties who appear.”

Burke expressed his disagreement in an exchange with Ragsdale, saying at one point that the rule applied to plaintiffs, not their lawyers.

“Is this just a political argument?” asked Burke.

Ragsdale said that is not the case, but it could be a legal policy issue. Burke said the situation is what it is.

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Governor Kay Ivey signed a law in 2022 that made it a crime punishable by up to 10 years in prison for a doctor to prescribe puberty blockers and hormones as part of gender reassignment treatment for youth under 19. Shortly after the law went into effect, two lawsuits were filed, known as Walker and Ladinsky.

In the days that followed, the cases were linked together and, after a series of reassignments, assigned to Burke. The plaintiffs eventually withdrew both lawsuits. Walker’s lawyers, many of whom are represented by Ragsdale, did not file new lawsuits. Ladinsky’s lawyers filed a new case titled Eknes-Tucker. That case, also assigned to Burke, is listed in court records as Boe et al.

Burke, a Trump-appointed judge, blocked the state’s ban on puberty blockers and hormones in May 2022, arguing that the law violated parents’ rights to make decisions for their children and that the state had not shown that the drugs caused harm. In 2023, a three-judge panel of the 11th Circuit overturned Burke’s ruling, saying there was no fundamental right to gender-affirming treatment.

The plaintiffs in that case and the U.S. Department of Justice, which intervened on their behalf, are currently seeking a stay of proceedings because the Supreme Court has agreed to take up a case against a similar ban in Tennessee.

Burke claims the first round of cases were dismissed because they were assigned to him. A three-judge panel issued a report in October that said, “Testimony and evidence convince the panel that attorneys for Walker, Ladinsky and Eknes-Tucker intentionally sought to assign their cases to a judge they believed was favorable, and specifically to avoid Judge Burke.”

At Thursday’s hearing, the parties also discussed a 2003 case before the 11th U.S. Circuit Court of Appeals. A three-judge panel had denied the plaintiffs an administrative order after they were ordered to fire an attorney because of his connection to U.S. District Judge UW Clemon.

“In these consolidated cases, we are called upon to consider the appropriate course of action when a party is alleged to have caused the recusal of a district judge by engaging a close relative of the judge as counsel,” wrote U.S. District Judge Robert Lanier Anderson.

In Re BellSouth Corp., the plaintiffs sought a preliminary injunction compelling the district court to vacate its order disqualifying an attorney, a nephew of Clemon, and his law firm from representing a company in a putative racial discrimination class action lawsuit. The three-judge panel found that they had failed to meet the duty to grant a preliminary injunction.

“(U.S. District Judge C. Lynwood Smith) first noted that while the Due Process Clause guarantees a defendant in a civil case the right to legal representation, there is no absolute constitutional guarantee of counsel of one’s own choosing,” Anderson wrote. “Among the limitations on a party’s choice of counsel is that counsel may not be engaged as a means of manipulating the due administration of justice, he recognized. Although a court must ordinarily find ‘compelling reasons’ to overturn a party’s choice of counsel, the court found that sham hiring for the purpose of forcing the judge’s recusal is a sufficiently compelling reason.”

Ragsdale said there were three dissenting opinions in the case and a 2-1 decision, but that was the basis for Burke’s wording. He also said his clients have not filed a new lawsuit, which Burke admitted.

Ragsdale said no one disputed that Burke was responsible for the dismissal, but noted that attorneys cited other reasons for their motion to dismiss.

At the start of the hearing, lawyers representing some of the defendants presented the files that U.S. District Judge Annemarie Axon, also a Trump appointee, had with her at the time the lawsuit was filed in April 2022. Axon was one of the previous appointees in the Ladinsky case.

According to the report, Axon assigned the case to Burke because she was already in the fourth day of a jury trial that was expected to last longer than two weeks and because the pending transgender cases were time-sensitive.

Christian King, an attorney for Jeffrey Doss and Melody Eagan, said the reason for the postponement was not clear because it seemed at the time that the jury would reconvene within a feasible timeframe.

Burke said he went through the entire file and found jury instructions and other documents that suggested Axon could have been out much longer. Burke said the filing of the file looked like an attempt to “smear” the court.

“I have a lot of questions about what the intention behind this was,” he said.

He said it was misleading to refer only to some parts of the file that supported their interpretation of the case. He had to go through the file to find other relevant information that he felt did not support their account.

Burke also questioned several other lawyers for the defendants directly, telling two of them early in the questioning Thursday that it was unlikely they would face sanctions.

Burke acknowledged that some lawyers had apologized to him and thanked them.

Defendant attorney Scott McCoy said he regretted the wording that suggested Burke took on the case because he viewed Burke as conservative.

“Do you know how much I regret taking this case?” Burke said.

The hearing is expected to continue on Friday.

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