Supreme Manipulation

In two cases this term, Little v. Hecox and West Virginia v. B.P.J., the Supreme Court will consider whether schools can offer separate boys’ and girls’ sports teams based on biological sex, or instead must let boys who identify as girls play with biological girls. In a late-breaking development, though, the plaintiff in Hecox (a biological male) has suddenly disclaimed any interest in playing collegiate sports and tried to dismiss the case as moot. This comes after years of litigation in which the plaintiff had repeatedly claimed enough of an ongoing interest in sports to avoid mootness — and prevailed on the merits. This apparent effort to escape Supreme Court review of critical constitutional questions deserves scrutiny.

On Tuesday, the district court rejected Hecox’s purported voluntary dismissal of the case, explaining that seeking to dismiss the case during a stay agreed to by Hecox “flaunts principles of equity and fairness and is, thus, void.” The court noted Hecox’s mootness argument but found that “this mootness argument is . . . somewhat manipulative to avoid Supreme Court review and should not be endorsed,” since Hecox’s interest in playing sports “could still change” (again). The court also noted Idaho’s defense of its law “for years,” explaining that “it would be fundamentally unfair to abandon the issue now on the eve of a final resolution.” Strategy, the court said, “should not overshadow impartiality and justice.”

But the plaintiff in Hecox has also asked the Supreme Court to dismiss as moot. Given the district court’s findings that Hecox has acted in a “somewhat manipulative” way contrary to “equity,” it is worth noting that another district court found that Hecox’s counsel misused strategic dismissals to manipulate judicial review of another gender-related challenge.

In particular, Kathleen Hartnett (Hecox’s Supreme Court counsel of record) and James Esseks (another of Hecox’s lawyers) were involved in challenges to Alabama’s Vulnerable Child Compassion and Protection Act, a law that generally prohibited medical transitioning of children. (Disclosure: I was counsel to Alabama, but this post is not in my capacity as the state’s counsel, and I filed amicus briefs in Hecox and B.P.J.) After the Alabama law was enacted, two sets of plaintiffs quickly filed suits in separate federal districts. After the complaint filed by Hartnett and Esseks was assigned to a judge that some evidently perceived as unfavorable, they voluntarily dismissed, without even obtaining their clients’ consent. Counsel in the other case, which had been assigned to the same judge, simultaneously dismissed but told the press, “We do plan to refile imminently.”

Given this apparent effort at judge-shopping, the Alabama federal courts conducted an investigation that included six months of testimony and briefing and eleven months of deliberations. In the process of that investigation, a panel of district judges found that “the facts support a good faith belief by a reasonable person that Esseks . . . and Hartnett committed fraud on the court by coordinating testimony to mislead the Panel.” Eventually, the panel determined “without reservation” that Hartnett and Esseks (among others) “purposefully attempted to circumvent the random case assignment procedures” of the courts and thus threatened “the orderly administration of justice.”

The district court declined to formally sanction Hartnett and Esseks because they apologized for this conduct and promised not to engage in similar misconduct. The court noted, however, that Hartnett’s testimony about why she voluntarily dismissed was “difficult to credit.” And the court emphasized that the overall conduct “was not just a strategic litigation decision; it was a calculated effort to subvert the rule of law.”

This background provides even more reason to doubt Hecox’s last-minute dismissal ploy. Of course, the possibility that Hecox could have another change of heart about sports should be sufficient to avoid mootness under Supreme Court precedent. But the Court’s stated “interest in preventing litigants from attempting to manipulate the Court’s jurisdiction to insulate a favorable decision from review further counsels against a finding of mootness” — especially given the history of Hecox’s lawyers.