MONTGOMERY, Ala. (CN) — There was a moment early in attorney Michael Shortnacy’s testimony Monday when U.S. District Judge Liles C. Burke offered a little reassurance.
“It is very unlikely you are going to walk away from this with a sanction,” Burke told Shortnacy, who was defending himself against accusations that he partook in a judge-shopping scheme. “I have been reminded many times that judges should not consider collective responsibility or collective punishment.”
Shortnacy was the first of 11 prominent civil rights attorneys who were ordered to appear at show cause hearings this week to explain why they suddenly sought to dismiss a case challenging Alabama’s Vulnerable Child Compassion and Protection Act, a 2022 law prohibiting the use of hormone therapy or surgery for minors with gender dysphoria.
Within hours of the law’s passage, Shortnacy and other attorneys filed two lawsuits in the Northern District of Alabama. The suits were consolidated and assigned to Burke, an appointee of President Donald Trump and a known conservative. The attorneys withdrew the two early lawsuits then found new plaintiffs for a third, which was filed the following week in the Middle District of Alabama.
When the new case was transferred back to Burke in the Northern District, the attorneys again sought to dismiss it. Their opponents then accused them of judge-shopping, and in May 2022, a three-judge panel was convened to investigate all 39 attorneys who represented plaintiffs in cases challenging the state law.
Some 17 months later, in October 2023, the panel released a final report of the inquiry concluding that 11 attorneys in the litigation engaged in part or all of a scheme to attempt to steer the litigation toward a left-leaning judge, or one more receptive to LGBTQ rights.
Due to scheduling conflicts, both Shortnacy and attorney Kathleen Hartnett appeared before Burke on Monday. The others are scheduled for hearings June 27-28.
For his part, Shortnacy said, he was at arm’s length from most of the initial filing and scheduling decisions of the case — but he admitted he did participate in one or more phone conferences where Burke’s conservatism was noted as a concern.
He pointed a finger at attorney Melody Eagan for leading the discussion, which included a remark that the judge once had a portrait of Confederate president Jefferson Davis in his chambers while he served on Alabama Court of Criminal Appeals.
Burke acknowledged the portrait in court Monday, but explained the Alabama Supreme Court building “is like a museum” where historical artwork is frequently rotated around rooms and chambers. The judge said he also had portraits of Booker T. Washington and Alabama’s first female appellate judge, Annie Lola Price, on the walls of his chamber, but the plaintiffs’ attorneys never mentioned those.
Shortnacy also disclosed that the attorneys believed a female judge may be more receptive to their arguments, since “a mother would be more likely to be concerned with the medical care of children.”
Burke pushed back on that notion, saying he was a father and asking if the attorneys considered him a parent.
Shortnacy deflected, arguing the parties were too conflicted, confused and disorganized to concoct a conspiracy.
“We really just felt like we needed to pause and regroup,” he said of the motion to dismiss the case after it was assigned to Burke. Shortnacy admitted it had the appearance of judge-shopping, but “that’s not what we did,” he said.
Another who was ordered to show cause on Monday, Kathleen Hartnett, said the case at hand her first in Alabama, making her unfamiliar with local districts, divisions, judges and procedure.
“I believe I acted in good faith" Hartnett testified Monday, adding she was "horrified" the court found her conduct questionable.
Attorney Brandon Buck, who represents Hartnett, said a sanction requires “subjective bad faith” and Hartnett’s actions do not meet the bar. “Instead, she acted with professional judgment, advocacy and expediency,” he said.
The final report of the three-judge panel, published in October 2023 but not unsealed until March 2024, also implicates Melody Eagan, Jeffrey Doss, Scott McCoy, Jennifer Levi, Shannon Minter, James Esseks, LaTisha Faulks, Asaf Orr and Carl Charles. They are scheduled to appear before Burke Thursday and Friday.
If probable cause is found that any of them engaged in judge shopping or attempted to mislead the investigation, possible sanctions include suspension and disbarment. But Judge Burke said he will not punish all for the actions of a few.
“I have no intent of taking action against someone for something they were not a part of,” he reiterated.
In regard to the law at issue, Burke did go on to uphold language prohibiting surgery for minors with gender dysphoria and grant an injunction against the portion regarding hormones and medication. In August 2023, however, the 11th Circuit Court of Appeals reversed his injunction and upheld the law.
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