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3. Citing ‘anti-democratic takeover’ by ‘activist’…

Civil Procedure

Citing ‘anti-democratic takeover’ by ‘activist’ plaintiffs, Trump seeks money bond for injunction requests

By Debra Cassens Weiss

March 13, 2025, 3:38 pm CDT

President Donald Trump is directing federal agencies to seek a money bond when plaintiffs file federal lawsuits against the administration that seek temporary restraining orders or preliminary injunctions.

“In recent weeks,” Trump said in a March 11 memo, “activist organizations fueled by hundreds of millions of dollars in donations and sometimes even government grants have obtained sweeping injunctions” that meddle in executive policymaking.

“This anti-democratic takeover is orchestrated by forum-shopping organizations that repeatedly bring meritless suits, used for fundraising and political grandstanding, without any repercussions when they fail,” the memo said.

To deter frivolous litigation, Trump said, parties seeking injunctions against the federal government should be required under Rule 65(c) of the Federal Rules of Civil Procedure to post security that would cover potential costs and damages from a wrongly issued injunction.

A White House fact sheet said injunctions “can cost taxpayers millions or even billions of dollars, especially when they mandate continued funding.”

Several judges have denied bond requests, including U.S. District Judge Adam B. Abelson of the District of Maryland, according to Bloomberg Law and Law & Crime.

Courts have frequently waived bond requirements “where a fundamental constitutional right is at stake,” Abelson wrote.

U.S. District Judge Loren L. AliKhan of the District of Columbia also denied bond in a challenge to a Trump administration funding freeze, according to Bloomberg Law, Reuters and Law & Crime.

“In a case where the government is alleged to have unlawfully withheld trillions of dollars of previously committed funds to countless recipients, it would defy logic—and contravene the very basis of this opinion—to hold plaintiffs hostage for the resulting harm,” AliKhan said in granting a preliminary injunction to the plaintiffs.

U.S. District Judge Brendan A. Hurson of the District of Maryland also refused to require a bond in a challenge to anti-LGBTQ executive orders, Law.com reports.

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3. BigLaw firm tones down diversity references…

Diversity

BigLaw firm tones down diversity references on website, citing ‘fluctuating internal and external expectations’

By Debra Cassens Weiss

February 13, 2025, 10:13 am CST

Updated: K&L Gates has removed references to “diversity” from its website and rebranded its Diversity and Inclusion Committee.

Above the Law noted the changes after monitoring BigLaw websites since President Donald Trump took office last month.

According to Above the Law, K&L Gates has removed or changed these references:

  • The link to “Our Commitment to Diversity” on the homepage has been removed.

  • “Diversity and Inclusion” is changed to “Opportunity and Inclusion” on the “About” page.

  • The renamed “Opportunity and Inclusion” page no longer includes diversity percentages for leadership positions.

  • The law firm has removed a sentence reading, “We pledge to follow the Mansfield Rule,” which requires firms seeking certification to commit to certain percentages of diverse candidates for leadership positions.

  • The Diversity and Inclusion Committee has been renamed the Opportunity and Inclusion Committee.

K&L Gates explained the changes in a firmwide email obtained by Above the Law.

The email said K&L Gates is not diminishing its commitment to opportunity and inclusion.

“We are embracing the terminology opportunity and inclusion to more comprehensively express our commitment to fostering a culture that supports and empowers a broad range of individuals with diverse backgrounds and different life experiences,” the email said.

“The website changes are reflective of guidance being received by many clients and others, as entities understandably are taking a hard look at how to preserve their values amid fluctuating internal and external expectations and to ensure they remain compliant with shifting laws and regulations,” the email said.

“To date, the changes on our website have been implemented and led by a cross-section of stakeholders at our firm, including importantly by members of our opportunity and inclusion team. The team is still in the process of making updates to the website—and we can assure you that the feedback we receive will be factored in.”

K&L Gates made similar points in this statement forwarded to the ABA Journal: “Consistent with our long-held values, K&L Gates is committed to advancing opportunity and inclusion across all facets of the firm. Revisions to our website have been implemented and led by a cross-section of stakeholders at our firm, including importantly by members of our Opportunity and Inclusion Committee, and we are and will continue to be in close communication with our entire global team about these changes. Not only do we place great value on our team members’ unique backgrounds, talents and skills, but we also benefit as a firm from the diversity of their lived and learned experiences. We are dedicated to ensuring that every person at K&L Gates feels respected, heard, valued and supported. We have not diminished in any way our long-standing commitment to foster an inclusive, talented team, as we know this enables us to provide the best possible service to our clients and empowers our workforce to thrive.”

Updated Feb. 13 at 11:09 a.m. to include the statement from K&L Gates.

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3. Top Montana court allows gender-affirming…

Privacy Law

Top Montana court allows gender-affirming care for trans minors during litigation, citing privacy protections

By Debra Cassens Weiss

December 12, 2024, 11:52 am CST

The Montana Supreme Court on Wednesday cited state constitutional privacy protections when it upheld a judge’s decision to block a law that bans gender-affirming care for transgender minors.

The state supreme court upheld a state judge’s determination that a privacy challenge to the 2023 law blocking the care was likely to succeed on the merits, and that challengers were likely to suffer irreparable harm absent an injunction.

The Montana Supreme Court’s Dec. 11 decision leaves in place a preliminary injunction that blocks the ban on gender-affirming care pending a trial in the case.

The state supreme court cited the Montana Constitution, which provides: “The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.”

The law should be evaluated using strict scrutiny, the state supreme court said.

“The statute at issue here prevents a wide range of treatment even when such treatment is determined, in the judgment of a medical professional working with their patients, to be in the patients’ best interest and given with informed consent,” the Montana Supreme Court said. “The district court reasonably concluded that the balance of the equities tips toward preliminary relief pending full consideration of the merits.”

Two concurring justices said the state supreme court also should have addressed the plaintiffs’ claim that the law violates the state constitution’s equal protection clause.

“Gender-affirming care is currently being litigated on equal protection grounds around the country, and the United States Supreme Court is poised to take up the issue this term,” the concurrence said. “These cases are instructive in certain ways, but they cannot answer what this court is being asked: how sex/gender discrimination and suspect class discrimination should be handled under the unique equal protection provision of the Montana Constitution.”

A partial dissenter would have allowed the law’s ban on Medicaid funding for gender-affirming care to take effect.

Hat tip to the American Civil Liberties Union, which issued a Dec. 11 press release.

How Appealing linked to coverage by the Flathead Beacon and Courthouse News Service.

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3. Chief Justice Roberts steered rulings benefiting…

U.S. Supreme Court

Chief Justice Roberts steered rulings benefiting Trump, report says, citing internal information

By Debra Cassens Weiss

September 16, 2024, 3:52 pm CDT

A confidential memo and disclosures about internal deliberations show how Chief Justice John Roberts took an active role in three U.S. Supreme Court decisions that benefited former President Donald Trump, according to a story by the New York Times.

In the confidential memo, Roberts urged Supreme Court justices to consider whether presidents have immunity from prosecution and offered “a startling preview of how the high court would later rule,” the New York Times reports.

Roberts wrote the memo after Trump sought to end his trial for allegedly seeking to overturn the 2020 election based on immunity. Roberts’ memo said he thought that the justices would see the case in a different light than the federal appeals court that ruled for prosecutors.

The immunity decision is one of three in which Roberts used his authority “to steer” the high court to benefit Trump, the New York Times says. Its story “draws on details from the justices’ private memos, documentation of the proceedings and interviews with court insiders, both conservative and liberal, who spoke on the condition of anonymity because deliberations are supposed to be kept secret,” the newspaper reports.

Roberts wrote the high court’s opinion in all three cases. They are:

  • Trump v. United States, the July decision holding that presidents have absolute immunity when exercising core constitutional powers and at least presumptive immunity for acts “within the outer perimeter” of their official responsibilities.

  • Trump v. Anderson, an unsigned March decision holding that Colorado can’t kick Trump off the primary ballot because it is up to Congress, not the states, to enforce the constitutional ban on insurrectionists holding office.

  • Fischer v. United States, a June decision holding that Jan. 6, 2021, U.S. Capitol rioters can’t be charged with obstruction because they didn’t impair the availability or the integrity of documents in an official proceeding. The decision affected Trump because he had also been charged with obstructing the certification of the 2020 election.

In Trump v. United States, Roberts’ confidential February memo sided with the three liberal justices who didn’t want to delay hearing the immunity case until next term and then “froze them out,” the article reports. Besides recommending that the Supreme Court hear the case, Roberts addressed how it should be decided. The memo “tore into the appellate court opinion green-lighting Mr. Trump’s [election-interference] trial, calling it inadequate and poorly reasoned,” the New York Times says, citing sources who had seen the document.

Justice Sonia Sotomayor had signaled that she was willing to agree on some points in hopes of producing a more moderate opinion in the immunity case, but Roberts did not respond, sources told the New York Times.

Justice Brett Kavanaugh and Justice Neil Gorsuch, on the other hand, praised an initial draft of Roberts’ opinion and thanked him for “exceptional” and “remarkable” work.

In Trump v. Anderson, Roberts had indicated that he wanted the decision to be unanimous. But he sided with four conservative justices who wanted to rule not only that Colorado couldn’t remove Trump from the ballot but also that it was up to Congress to decide whether insurrectionists should be on the ballot. That led four concurring justices to argue that the high court should not have reached the issue of Congress’ role.

In Fischer v. United States, Justice Samuel Alito was initially assigned to write the decision on the reach of the obstruction statute. But Roberts decided to assign the opinion to himself after news stories surfaced about an upside-down flag flown at Alito’s home after the 2021 Capitol riot.

Justice Ketanji Brown Jackson agreed that the obstruction statute was being applied too broadly and offered to join the majority if the justices remanded the case, rather than tossing charges against the rioters. Conservative justices agreed to the offer, according to the New York Times.

Roberts assigned himself seven majority opinions this term, and five of them were in “blockbuster cases,” the New York Times says. Some wondered whether Roberts had overextended himself.

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3. Judiciary ‘has no power to unimpeach,’ federal…

Judiciary

Judiciary ‘has no power to unimpeach,’ federal judge says while citing Dr. Seuss

By Debra Cassens Weiss

March 26, 2024, 8:57 am CDT

A federal judge has tossed former Democratic Illinois Gov. Rod Blagojevich’s pro se lawsuit seeking the right to run for political office, despite his impeachment and conviction, saying the complaint is “riddled with problems” and is an “Issue-Spotting Wonderland.”

U.S. District Judge Steven C. Seeger of the Northern District of Illinois said Blagojevich made several mistakes when he claimed that the Illinois Senate violated the First Amendment, the Sixth Amendment and the 14th Amendment by disqualifying him from future office in the state, in violation of Section 1983 of the Civil Rights Act.

Among the problems cited by Seeger: Blagojevich wrongly sued the state of Illinois and the Illinois General Assembly, rather than naming a person as a defendant under Section 1983; he cites the Sixth Amendment, but it applies to criminal cases and not impeachment proceedings; he lacks standing to assert First Amendment voting rights of voters; and he has said he is unsure whether he even wants to run for office, which could mean that his claim isn’t ripe for adjudication.

The bigger problem, Seeger said in his March 21 opinion, is that a federal court can’t get involved in impeachment decisions.

“The bottom line is that the judiciary has no power to unimpeach, unconvict and unremove a public official,” Seeger wrote. “The legislature taketh away, and the judiciary cannot giveth back.”

The Chicago Tribune, the Associated Press and Law360 are among the publications with coverage.

In 2011, Blagojevich was sentenced to 14 years in prison for political corruption, but he served only eight years before then-President Donald Trump commuted the sentence in February 2020. Blagojevich was a lawyer before his May 2020 disbarment, according to the Chicago Tribune.

Seeger is known for his opinions pillorying lawyers. He said a food labeling lawyer’s “warehouse of complaints” are “not fit for public consumption,” a Chicago lawyer’s motion was littered with “unnecessary potshots and hyperbole,” and lawyers in a trademark suit should be aware that “‘judge shopping’ ain’t a thing here.”

In the hyperbole case, Seeger declared that “searching for over-the-top sentences in the motion is like shooting fish in a barrel.”

Seeger returned to the analogy in Blagojevich’s case.

“The complaint is riddled with problems,” he wrote. “If the problems are fish in a barrel, the complaint contains an entire school of tuna. It is a target-rich environment. The complaint is an Issue-Spotting Wonderland.”

Seeger noted that the case began with “great fanfare” as Blagojevich announced with “a gaggle of press in tow” that he might want to return to public life.

“The case started with a megaphone, but it ends with a whimper,” Seeger wrote. “Sometimes cases in the federal courthouse attract publicity. But the courthouse is no place for a publicity stunt.”

Seeger quoted from the 1972 Dr. Seuss book Marvin K. Mooney Will You Please Go Now!

“The time has come. The time has come. The time is now. Just Go. Go. Go! I don’t care how. You can go by foot. You can go by cow. Marvin K. Mooney, will you please go now!”

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3. Longtime prosecutor resigns after judge tosses…

Prosecutors

Longtime prosecutor resigns after judge tosses him from case, citing Perry Mason-type revelations

By Debra Cassens Weiss

March 14, 2024, 10:09 am CDT

Longtime Miami-Dade County, Florida, prosecutor Michael Von Zamft has resigned after a judge disqualified him and a colleague from the resentencing of an alleged gang leader convicted of four murders.

Judge Andrea Ricker Wolfson of the 11th Judicial Circuit Court of Florida in Miami-Dade County said newly discovered evidence suggested that witness testimony had been manipulated in the prosecution of gang leader Corey Smith, and that jailed witnesses had been granted favors, including conjugal visits, for their cooperation.

Wolfson also cited a recorded phone call between Von Zamft and a jailed witness that could be viewed as a “cryptic message” about eliminating an unreliable witness, although the judge did not accept that interpretation.

The Associated Press, the Miami Herald, Local10.com and Law.com have coverage of Wolfson’s March 6 decision.

“On television, Perry Mason, defense attorney extraordinaire, always managed to find the smoking gun at the end of every episode,” Wolfson wrote. “In real life, this happens very rarely. It happened here.”

Wolfson tossed Von Zamft from the case, saying he had a “prosecutorial philosophy of winning at all costs.” She also disqualified a second prosecutor who “emphatically argued” that no unethical conduct had happened, she wrote. But she rejected a request to disqualify the entire Miami-Dade state attorney’s office.

Smith was being resentenced because he was sentenced to death in two of the murders based on less-than-unanimous juror votes, a practice that was banned in a 2017 Florida law.

Wolfson cited evidence supporting disqualification presented in a multiple day hearing “regarding over 20 years of allegations of misconduct” in the case.

Wolfson said the state’s treatment of discovery in the case “has been questionable throughout the litigation process.” Multiple representations by Von Zamft regarding discovery “can best be described as the continuous movement of the goal line away from the defense team,” she said.

She also cited evidence of witness coordination.

Three cooperating witnesses had testified that they had been taken to the Miami Police Department’s homicide unit to coordinate testimony in the Smith case. One of those witnesses had first made the claim in a January 2023 affidavit, but he changed his story after meeting with two prosecution investigators allegedly sent by Von Zamft.

Further evidence included a recorded August 2022 phone call between Von Zamft and a co-defendant, Latravis Gallashaw, who became a cooperating witness. During the call, they discussed problems with witnesses in the Smith case.

Gallashaw asked whether Von Zamft had considered “rehabilitating” an inmate named Jones. Von Zamft said there had been a problem with Jones’ contradictory statements. Von Zamft said he was trying to arrange a prison courtyard meeting between Gallashaw, Jones and an inmate who was a witness in another case, but his request was turned down.

“But the gun did not stop smoking there,” Wolfson said, carrying on her Perry Mason reference.

In the call, Von Zamft complained that Tricia Geter, a cooperating witness and Smith’s former girlfriend, was unpredictable. She gave full and complete testimony in the prior trial, however, he said.

“If I call her and she refuses, then I will find a way to make her unavailable, and then I can read her whole testimony,” Von Zamft said.

“You would want to do that?” Gallashaw asked.

Von Zamft replied that he didn’t want to do it.

“I’d rather she testified and did a good job. But can I count on it? No,” Von Zamft said.

Wolfson said the phone call “totally and completely corroborates Ms. Geter’s testimony that she got mad at Mr. Von Zamft in 2023 after he told her that if she was dead, he would simply read her prior testimony into the record.”

“It is important to reiterate the context of the interaction between Mr. Von Zamft and Mr. Gallashaw,” Wolfson wrote. “Mr. Gallashaw is a convicted murderer in a case that involves witness elimination. Mr. Von Zamft, a highly trained lawyer, knew who he was talking to. At best, Mr. Von Zamft’s use of the words ‘make her unavailable’ is reckless considering the audience.

“To be clear, this court does not believe that Mr. Von Zamft was sending a cryptic message to Mr. Gallashaw to eliminate Ms. Geter. However, reasonable minds may reach a different conclusion based on the totality of circumstances in this case.”

Geter told the Miami Herald that she fears for her life because of threatening messages that she has received. She learned of the phone call about making her unavailable about two weeks ago.

“Why would you tell him you don’t want me available?” Geter asked in a newspaper interview with the Miami Herald. “It’s unethical that this officer of the state attorney’s office would be conspiring with a known killer.”

Wolfson sent a copy of her opinion to the Florida Bar. Von Zamft told the ABA Journal that because the matter has been referred to the bar, his attorney has instructed him not to comment.