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Judge Liles Burke is trying to force the lawyers to reveal what they argue is attorney-client privileged information.
A Donald Trump-appointed federal judge in Alabama has threatened to jail several prominent LGBTQ+ civil rights lawyers involved in a long-running forum-shopping dispute.
U.S. District Judge Liles Burke, who oversees Boe v. Marshall, a case challenging Alabama’s ban on gender-affirming care for minors, issued an unexpected order Friday, Chris Geidner of Law Dorkreports. Burke demanded that several lawyers turn over a Q&A document that the lawyers argue is protected by attorney-client privilege by 5 p.m. Central on Monday or face monetary sanctions and potential imprisonment. Burke justified his order by suggesting that the document might fall under the crime-fraud exception.
The Q&A document is a prepared set of questions and answers created by the attorneys in an earlier case against the ban, Walker v. Marshall, at the request of Barry Ragsdale, their counsel, to help prepare for a hearing before a three-judge panel investigating allegations of judge-shopping. This document was intended to outline potential questions that might be asked during the inquiry and to provide suggested responses, assisting the attorneys in their testimony.
“Even if the document otherwise enjoyed the protections of attorney-client privilege or the work-product doctrine, the document loses those protections if the crime-fraud exception applies,” Burke wrote in the order. He added that reviewing the document is necessary to determine its relevance to the case.
In response, lawyers sought emergency relief from the 11th Circuit Court of Appeals. The petition, led by Donald Verrilli Jr., who was solicitor general under President Barack Obama, argued that the district court’s actions were an abuse of judicial power, .Geidner reports.
The plaintiffs’ legal team responded to Burke’s order by filing an emergency motion to stay and a petition for writ of mandamus with the 11th Circuit Monday. A writ of mandamus is an extraordinary remedy, typically reserved for situations where a lower court has made a clear error or abused its discretion, and there are no other adequate means to address the issue. By seeking this relief, the legal team underscores the severity of the situation and their belief that Burke’s order represents a significant overreach.
In March, Reuters reported that a three-judge panel concluded that 11 attorneys at major LGBTQ+ rights groups and law firms engaged in impermissible judge-shopping to steer litigation challenging Alabama’s ban on gender-affirming medical care for transgender youth away from a conservative judge. The panel’s report, unsealed by Burke, found that the lawyers “purposefully attempted to circumvent the random case assignment procedures” for the U.S. District Courts for the Northern and Middle Districts of Alabama. The court found that the lawyers viewed Burke, a conservative judge, as a “bad draw” who likely would rule against them. Burke, however, did enjoin the law’s enforcement, though the 11th Circuit reinstated it in August.
In January, the U.S. 11th Circuit Court of Appeals allowed Alabama’s ban on gender-affirming care for minors to go into effect. The court lifted a lower court injunction against the 2022 law, which makes it a felony for physicians to prescribe hormones or puberty blockers to individuals under 19, according to the Alabama Reflector. Those convicted under the law could face up to 10 years in prison. The law also bans genital surgeries on minors, though physicians have said these surgeries do not happen in Alabama.
Burke initially issued the injunction in 2022, ruling that the law unconstitutionally interfered with parents’ abilities to make decisions for their children and that the state had failed to prove the treatments were harmful. However, a three-judge panel of the 11th Circuit cited the U.S. Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, which overturned Roe V. Wade and ended federal abortion protections, in deciding that there was no “fundamental right” to gender-affirming care.
Supporters of the ban argue that it is necessary to protect minors from making irreversible medical decisions at a young age, while opponents contend that the ban violates the constitutional rights of transgender youth and prevents them from receiving medically necessary care.
