On Friday, U.S. District Judge Liles Burke reiterated his order for certain prominent LGBTQ civil rights lawyers to produce a confidential document, warning of potential sanctions if they fail to comply.
Earlier, Burke had directed 11 lawyers, who were a part of a legal case against Alabama’s law that criminalizes gender-affirming care, to create a confidential “Q&A document.” This document was meant to aid the attorneys in defending themselves against accusations of impropriety related to judge-shopping.
The attorneys were under immense pressure from Burke as he demanded the document to be handed over within a single business day. The defense was not given any chance to respond, and the consequences for not complying included the possibility of being detained by the U.S. Marshals.
Upon receiving the order to produce the document, the attorneys quickly filed a motion for mandamus relief with the 11th circuit. However, they later withdrew the motion after Burke postponed the deadline and permitted the defense to present its arguments against producing the document.
According to Burke, the court could use the “crime fraud exception” to disregard privilege. However, the attorneys are adamant that the document in question was not created with the intention of deceiving the court. This document has been in the court’s possession for years, and in the past, a panel of district judges ordered one defendant to produce it during an investigation into allegations of judge-shopping. Despite the court’s respect for the defendants’ privilege claim, they refused to provide the document, and the matter was not pursued any further.
According to Burke, the court has the authority to examine the document privately (in camera). It will not be considered as evidence unless the court determines that the crime fraud exception is relevant. If it is deemed irrelevant, Burke has stated that he will dismiss it.
According to the attorneys, if Burke reviews the document in camera, it would be impossible to undo the impact it may have on his decision-making. They argue that Burke is the ultimate fact-finder in the case and once he sees the document, it cannot be unseen.
According to a nonfinal report issued by a three-judge panel, it was found that the 11 attorneys engaged in improper judge-shopping. However, the lawyers have denied any wrongdoing and claim to have acted within the bounds of the law.
The accusation of judge-shopping stems from the convoluted filing history of the case, which is referred to as “Boe v. Marshall”. In the beginning, the legal team filed several lawsuits in both the middle and Northern districts of Alabama. They designated one of the suits as a related case to another one under Myron Thompson, which had the potential to resurface during an appeal.
Burke, a Trump-appointed judge, was assigned the case due to a series of atypical events. Lawyers were wary of this assignment as they believed Burke was not the ideal choice for the case. The reason behind the assignment was the original judge’s unavailability, as stated in court documents. However, the attorneys were unaware of this fact at the time and found the assignment to be suspicious as it was made without any motion from either party.
Attorneys assert that they have the authority to dismiss a lawsuit at any time and for any reason under Rule 41. Therefore, they did not act inappropriately when they withdrew the suit assigned to Burke and refiled it. Despite this, the case still ended up with Burke, as it was related to other cases that had been assigned to him for only a day before the attorneys withdrew them.
The ban on gender-affirming care in the state was challenged by the plaintiffs, and Burke concluded that they had a strong chance of success. However, the 11th Circuit later overturned this decision, which resulted in the law being implemented.
