Every plaintiff seeks the best forum for its case, but there are proper and improper ways of pursuing that goal.
In the spring of 2022, plaintiffs in Alabama filed several cases challenging a newly enacted Alabama law that bars providing puberty blockers or cross-sex hormones to minors as treatment for gender dysphoria. In an order back then, federal district judge Liles C. Burke of the Northern District of Alabama observed that, “[a]t the risk of stating the obvious, Plaintiffs’ course of conduct could give the appearance of judge shopping.”
In brief: Plaintiffs filed one lawsuit in the Northern District of Alabama and then another in the Middle District. They moved to have the Middle District case reassigned to a very liberal judge who had ruled on behalf of transgender plaintiffs on a very different matter. When the judge instead inquired why the case shouldn’t be transferred to the Northern District, where the first case had been filed, plaintiffs agreed to the transfer. But they then voluntarily dismissed both cases within nine minutes of each other—and then announced to the media that they planned to refile.
Over the next 18 months, a three-judge panel explored whether the plaintiffs had engaged in improper judge-shopping. On October 3, the panel issued a sealed final report. Plaintiffs’ lawyers have moved for the report to be kept confidential while they challenge it on appeal. It’s evident from their filings (as well, of course, from the very fact that they are challenging the report on appeal) that the panel concluded that they did indeed engage in improper judge-shopping.
There is nothing in the plaintiffs’ filings that suggests any disagreement with the panel’s factual findings. Indeed, one set of plaintiffs’ attorneys flatly acknowledges that they “do not dispute the factual account of their actions detailed in the Report.” They instead evidently contest the panel’s legal conclusions. At least one set of plaintiffs’ attorneys contends that they have “strong privacy and reputational interests that would be harmed if the Report were unsealed at this stage.” But if their legal claims are vindicated on appeal, it is difficult to see how disclosure in the interim of factual findings that they do not contest would do them any significant harm.
As Alabama spells out, there is an ordinary presumption in favor of public access to court rulings. Remarkably, one set of plaintiffs’ lawyers has the temerity to argue that the public interest in transparency doesn’t exist here because “no member of the public has yet even asserted an interest in viewing the Report.” But the report remains sealed, and any interested person would have to wade through various pleadings on the federal court’s electronic-records system (as I have done) in order even to discern that the panel ruled that attorneys engaged in misconduct. Plus, there is no evident vehicle for a member of the public to “assert[] an interest in viewing the Report.” So it would hardly be surprising if no one has. But please count this blog post as a strong statement of interest by one member of the public.
By the way, the Eleventh Circuit in August rejected plaintiffs’ challenge to the Alabama law.