Here is some lawyer porn for the shysters out there. As reported earlier this week, the Fifth Circuit Court of Appeals spanked U.S. District Judge Henry Wingate for his misuse of AI in a case.
Posted below are the audio recording and transcript of the oral arguments at the Fifth Circuit that were held on August 31. Anthony Shultz represents the state of Mississippi while Robert McDuff represents the plaintiffs.
Anthony Schultz: May it please the court, Anthony Schultz on behalf of the state. The district court in this case granted a universal injunction blocking key parts of a Mississippi law that protects public school students and employees from discrimination. That injunction should be vacated. As we've explained in our briefs, the district court ignored the analysis that is required for facial claims like those brought by plaintiffs here, misconstrued the state's law and applied incorrect legal principles, and issued expansive relief that exceeds its equitable authority under cases like Casa from the Supreme Court. That is one of the errors, yes. Also we submit that the court applied strict scrutiny which has no application when it comes to regulating inside public schools. And finally the court issued expansive relief that exceeds its equitable authority under cases like Casa from the Supreme Court. I hope to address all those points, but first we'd like to address this court's recent order about possible reassigning of the district judge. The state believes that reassigning this case to a different judge on remand would be appropriate. The district court's AI-infected, error-plagued TRO raises significant concerns about the court's deliberative process, and those concerns were only heightened by the court's actions after that when it removed the TRO from the public docket, stealthily replaced that order with a backdated amended version that still appears to contain at least one AI-related hallucination.
Judge: So one thing I'm gonna ask both sides is we need for both sides to confer and agree and give us a copy of whatever it was that was removed from the docket because we don't have that of course because it was not part of the...
Anthony Schultz: I believe actually it is in the record on appeal your honor because when the state filed a motion to clarify in response to the court's order it attached as an exhibit the original order. Yes. It is not on the public docket but it is on the ROA because it's an attachment to a state's motion
Judge: Okay.
Anthony Schultz: Um and as I mentioned that order even the corrected one still appears to include at least one AI-related hallucination as well as false statements about the act, for example it says it does not define certain terms when in fact it does define those terms. And on top of that the court refused to explain...
Judge: So there was in the original order there was some testimony by a person that doesn't exist and testimony doesn't exist?
Anthony Schultz: There was quotes or putative quotes to declarations that do not appear in the record. There was quotes to the statute that do not exist. There were parties identified as plaintiffs and defendants who are not parties to the case and never have been. So there was clearly errors and I think the court admitted that. The problem was it referred to those errors as merely clerical and did not give any explanation in response to the state's motions requesting I believe legitimately an explanation. And then what is the AI item that is still in the amended order? There is a citation to a case I believe it is Cousins it's a fourth circuit case that we were not able to find and public reporting suggests that it does not actually exist. And on top of that, the legal analysis in the TRO even the corrected TRO we submit is still incorrect, it rests on things like strict scrutiny which have no application here. But in the PI order, the court didn't disclaim the TRO, it actually embraced it and relied on the legal reasoning in the flawed TRO which we think is very concerning. And therefore we believe that the court's actions will lead any reasonable observer to question whether it has the ability to afford this case due care and accuracy going forward and reassignment would be appropriate.
Judge: I mean it seems to me that one thing we could do if we were to agree with you on that point and I'm not suggesting we will or we won't, but we raised the issue and you have addressed it. One possible thing that we could do would be not to address any of the substantive issues but simply require that the chief judge of the district see to it that the case is assigned to another district judge. That in a sense would send you back to the beginning but at least it would be a clean slate.
Anthony Schultz: I think that would depend your honor on what the clean slate means. Does that mean that the PI as ordered would remain in effect? I think that...
Judge: Well no my suggestion would be that it would be vacated but then a new district judge could do whatever he or she thought would be appropriate after whatever hearings would need to be held.
Anthony Schultz: I think the state believes that vacating the PI is the bare minimum your honor and that would be satisfactory for us. We think that the court could go further and give some instructions to whoever the district judge might be about how it needs to do a proper Moody analysis in this case. The court so far has not approached the required analysis under Moody versus NetChoice, which as this court knows requires a significant rigorous two-step inquiry. First you have to assess the challenged provisions to consider how they apply in all applications, you have to determine what the First Amendment principles that apply in those contexts, who the law applies to and what it actually governs.
Judge: Counsel to be clear, you're not asking us to do the Moody analysis, your prayer is that the case be remanded for the application of the correct analysis.
Anthony Schultz: Yes. I don't believe the record is sufficient for this court to do it on appeal nor do I think that's appropriate to do.
Judge Haynes: One thing I'm wondering along those lines is have you sat down with the opposite side and tried to talk about whether there could be any slight change in the bill 1193 that might clear everything up that they're concerned about?
Anthony Schultz: I'm not aware of conversations along that line your honor. I think if you read the parties' briefings I think we're pretty far apart in what we think this law actually does and is intended to do.
Judge Haynes: Right. But to me there could be some discussion that might help trickle in some things that you could speak to your congress and see whether that might resolve some of the problems. To me I'm not saying that the 1193 is terrible. I'm not saying it's great. But what I'm saying is when there are these issues sometimes a very small trickle can really correct whatever people are concerned about. But y'all haven't talked about that?
Anthony Schultz: I'm not personally aware of conversations to that effect. I can't speak to the legislature itself considering ways to change the law if it even wants to at all. I do think that there is a significant divide between the state and the plaintiffs in this case about whether the state has the right to regulate in-class instruction for example at all. They seem to suggest that it is unconstitutional viewpoint discrimination under strict scrutiny to tell a kindergarten teacher that they cannot endorse the view that certain races are inferior to others. And I think that is a completely untenable position as a matter of fact and as a matter of law.
Judge: Can you speak to the district court's all or nothing statement?
Anthony Schultz: Yes your honor that was one of the more confusing aspects of the district court's approach because if you start reading the district court on the scope of the remedy it referenced Casa, it cited and quoted from Casa and then did exactly what Casa says you cannot do, which is a universal injunction that binds parties that are not before the court. Now both the plaintiffs and the district court in this case have cited the concept of complete relief as the justification for universal relief that applies statewide. If you actually read what Casa says, it says that complete relief does not mean universal relief. It is a different concept that means complete relief between the parties. And that is not even then it is not a guarantee that narrower relief may be appropriate in certain cases depending on the context. And so Casa directly said at page 852 of the opinion that it is wrong to characterize universal injunctions as an application of the complete relief principle. So Casa on its terms countermands exactly what the district court said here. You cannot give universal injunctive relief to parties that are not before the court. Now there is one exception to that rule that's not really an exception but it is class actions. A properly certified class under Rule 23 can give relief to parties that are not actually named plaintiffs but are represented by the named plaintiffs. However there is no class in this case. The plaintiffs did raise class claims, they raised a classification motion, that motion has never been decided. And the state as we've expressed in our opposition to that motion believes that classification is not appropriate in this context because of the conflicts and different interests that apply within the purported classes that the plaintiffs seek to represent. So there is no basis for universal relief in this case under Casa. My friends on the other side and the district court have invoked this AARP versus Trump case which is a pre-Casa decision from the Supreme Court which says that in specific extreme cases courts maybe can give temporary class-wide or putative class-wide relief before certification where there are exigent circumstances. For example in that case the class of plaintiffs was due to be deported within 24 hours and to preserve its jurisdiction the Supreme Court said okay we can put a temporary pause on that class-wide basis. It did not say that you can have universal class-wide relief before certification for over a year which is what we've had in this case now. So your honor I think you're exactly right the relief the court ordered at the very least has to be vacated because it's overbroad and violates the court's equitable authority.
Judge: But if we I'm not saying we will vacate or we won't vacate, but let's take a minute and talk about vacating.What if we vacated and focused on the thing you just talked about earlier, that it is a universal injunction. If you can specifically say it's cubbyholed so that no school district tries to impose the vision that would require classes to be taught and class discussions to be conducted in a way very different from the way they've been doing it for years. If you make it clear that the school districts cannot do that, then that would be fine. Well what we would be doing in that respect it seems to me though would be rewriting the injunction. What we normally do when we review an injunction and decide that it's fatally flawed is that we send it back to the district court to refashion the injunction based on whatever instructions or observations we might have.
Anthony Schultz: I think that's true and I think you certainly are obviously this is a very different case than most because of the considerations we're talking about now. But I think you can do that in a way to say the district court whether it's reassigned or not reassigned needs to address this promptly and you could set a deadline even. But in the meantime the schools could not enforce these contested provisions or at least could only enforce them in a narrow way pending further review.
Judge: Is it your contention that the current order by the district court is sustainable in every respect that we should not find that there are any flaws at all in the order and therefore that it should be affirmed across the board?
Rob McDuff: I think it should be affirmed. It's a preliminary injunction not a final decision on the merits and I think you could tell the district court it needs to conduct a facial analysis on vagueness or on the First Amendment or both.The vagueness is a much easier that maybe means it's clear this is facially vague and because we're in a preliminary injunction where you're looking not retrospectively but prospectively there is a likelihood of success on the merits and that alone would be sufficient to sustain the injunction pending further review by the district court. The district court could either on the merits or in further review of the preliminary injunction if the state moves to lift it can address these issues at that time. But at this point it's clear there's a likelihood of success on the merits at least on those issues and therefore the preliminary injunction should be affirmed or narrowed but clarified as you suggest Judge Haynes.
Judge: Counsel you mentioned vagueness and I want to go back to my question about vagueness versus overbreadth in your 28j you cite the recent case from this court Marriott versus City of Bossier City but the quoted language that it seems you're relying on pertains to the overbreadth analysis can you explain that?
Rob McDuff: Yes. I mean the overbreadth test is very similar it's actually very similar to the Moody test. But the point we were trying to focus on in Marriott was its description of the facial vagueness test based on the case of Roy versus City of Monroe which is very different than the Moody test and very different from the state's claim that it's a vague in all applications standard. That's just not correct. And you actually quoted that description from Roy in your Woodlands Pride case when you sent it back for further review. Now that case of course is a final judgment and so there you're looking at whether the record sustains the relief that was ordered. Here we're looking prospectively. Is there a likelihood that when the proper analysis is done that we're going to prove that it's facially vague. And I think it's clear we will. I mean this is something where you can just look at the text of the statute and see that. And the other problem is the irreparable harm. The amicus brief a former university of Mississippi chancellor Dan Jones who's also a school board member talks about the absolute chaos that's going to result if this statute is enforced as it appears to be suggested by the language. So we've got a lot of issues to unpack here but if you're affirming the preliminary injunction you are just affirming it based on the likelihood of success on the merits on one of these issues and then the merits can be addressed by the court whether it's an existing judge or a new judge.
Judge: Yes your time has expired and you've saved time for rebuttal Mr. Schultz.
Anthony Schultz: Thank you.
Judge: Mr. McDuff.
Rob McDuff: Good morning your honor may it please the court Rob McDuff for the plaintiffs appellees in this case. I want to talk about where we are and about some practical things you all raised. I was really struck when reading the attorney general's reply brief after we filed our brief. And the extent to which this office said that students are not covered by the statute and that the statute does not interfere with the content of classes in history literature biology so forth and so on. And they pointed out that the purpose of the statute was to eliminate discrimination not to interfere with class content. And I thought they made some very good points and it really goes to what you said Judge Haynes about have we talked. Because the practical impact if you look at the language it seems quite sweeping. But the interpretation of the state's chief legal officer is that it is more narrow. And I think we certainly could talk we haven't but we could talk about whether there is an interpretation that could be reached by their clients the statewide defendants in these cases or maybe by the legislature that would narrow it in a way that it would be constitutionally permissible.
Judge Haynes: Yeah to me talking can be really helpful to try to figure things out. Right just fighting is not that helpful. Talking can be helpful. And so I think maybe as y'all are heading out to Mississippi maybe before that y'all should just get together maybe have lunch and talk.
Rob McDuff: Because I do think the statewide boards of education the board of institutions for higher learning the state board of education realize what a disaster it would be to try to impose this statute in the sweeping way that might be suggested by the language. I mean we have real vagueness issues here that have been raised by their brief. What does engagement mean? Does it really mean that you cannot discuss issues related to race sex color gender identity sexual orientation and national origin even though some of those issues have been part of classes for years some for decades. And this also goes to your point Judge Smith about what if this case is reassigned. I mean we don't think that this is one of those rare and extraordinary cases for reassignment but if you disagree then the case will have to be reassigned. But we earnestly request that you not vacate the preliminary injunction in the meantime because it would be chaos for the 136 school districts in Mississippi and the faculties and the leadership of the various universities and community colleges to try to enforce this extremely vague and potentially far reaching statute these particular provisions until it's clarified.
Judge: How do we not vacate if the Moody analysis was not properly applied by the court?
Rob McDuff: Well because we're here on a preliminary injunction the issue is not strictly limited to what's in the record thus far it focuses on likelihood of success on the merits in the future. We know there's irreparable harm if you try to impose it. We know the public interest will be impacted. So the only issue about this is likelihood of success on the merits on either the First Amendment claim which involves a Moody analysis or the vagueness claim which involves a different type of facial analysis. And I think it's clear particularly on the vagueness claim but I believe on both that there is a likelihood of success on the merits and that alone would be sufficient to sustain the injunction pending further review by the district court. The district court could either on the merits or in further review of the preliminary injunction if the state moves to lift it can address these issues at that time. But at this point it's clear there's a likelihood of success on the merits at least on those issues and therefore the preliminary injunction should be affirmed or narrowed but clarified as you suggest Judge Haynes.
Judge: Thank you Mr. McDuff. Your time has expired. Thank you Mr. Schultz for rebuttal.
Anthony Schultz: Thank you your honor. I'll try to go through a few points. First just to clear up, does this law mean that you cannot discuss race in schools? No, it doesn't. It bars endorsing or promoting certain invidious conceptions of race, for example that one race is inherently inferior to another. It does not bar teaching history. It does not bar discussing the civil rights movement. It just says you can't teach a student that they are lesser because of their race.Second, on the vagueness claim, they say we meet the standard for facial vagueness, but they haven't shown that it's vague in all of its applications. You just look at the statute. Is it vague to say you can't teach a student that their race makes them inferior? No. It's perfectly clear. And if it's clear in at least one application, it's not facially vague. That's the law. So they haven't met the standard. Third, on the preliminary injunction standard, you have to show a likelihood of success on the merits. They haven't done that because they haven't done the Moody analysis. You can't just skip the analysis and say, 'well, we'll probably win anyway.' You have to actually do the work. The district court didn't do the work. And therefore, the injunction must be vacated. Finally, on reassignment, I want to reiterate that this is an extraordinary case. The district court didn't just make a mistake. It relied on AI hallucinations, it issued an order with fake cases and fake testimony, and then it tried to cover it up by stealthily replacing the order on the docket. That is not normal judicial conduct. And it justifies reassignment to ensure that the parties get a fair hearing on remand.
Judge: Thank you Mr. Schultz. Your case is under submission. Next case Atkinson versus Pistilnik.
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