5th Circuit withdraws opinion in which Trump appointee criticized lawyer for appeal to gay bias

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Judge James Ho

Judge James Ho. Photo from the 5th U.S. Circuit Court of Appeals.

An appeals court has withdrawn an opinion in which a Trump judicial appointee added a footnote criticizing a Mississippi lawyer for appearing to appeal to gay prejudice.

The 5th U.S. Circuit Court of Appeals at New Orleans said in a new opinion Feb. 18 that the lawyer had apologized, and the prior opinion is withdrawn.

The new unpublished decision consisted of a paragraph noting the apology and affirming the district court’s dismissal of the case. Law.com has coverage.

Although lawyer Abby Robinson’s Feb. 13 petition for a rehearing en banc included the apology, it also expressed bewilderment at the criticism by Judge James Ho.

“Appellant-plaintiff apologizes to this honorable court for offending, but to this date, appellant-plaintiff still has no [idea] of what prejudice has been shown by counsel,” she wrote.

Ho had added the footnote, which wasn’t joined by other panel judges, in a Feb. 7 published decision. The decision had tossed Robinson’s appeal alleging that a youth’s Fourth Amendment rights were violated when a school official searched his pockets.

The Hinds County, Mississippi, school official searched the 12-year-old boy’s pockets after he was caught selling contraband candy.

On appeal, Ho said in the footnote, Robinson had argued in her briefs that the official was “touching around” in the student’s pocket, leading the student to think that the school official was gay.

The student thought that the official was gay, “making the touch of the minor’s privacy area that more offensive,” the lawyer’s brief said.

Ho said the lawyer’s logic was circular. “And the demonstrable failure of counsel’s logic makes one wonder why counsel bothers to bring up sexual orientation at all,” Ho wrote in the footnote. “It should go without saying that members of the bar are expected to engage in legal argument—not prejudice.”

Ho also criticized the lawyer for briefs containing “countless misspellings and grammatical errors.”

Robinson said in her petition for rehearing that Ho’s footnotes “began a tormenting censure of appellants-plaintiffs’ lawyer for bring[ing] the suit and calling the arrival of the suit as frivolous.”

Robinson said in the petition that the assertions in her briefs were not statements of her own sentiments but rather a summary of the youth’s feelings about being searched in such a manner by an official thought to be gay by children at the school.

She also said Ho’s assertion of circular logic was based on “inaccurate facts.”

“The minor stated that he was uncomfortable being touched in his penis area by the adult,” she wrote. “The child is entitled to state and answer the deposition question regarding his belief that the assistant principal might be motivated by acts of homosexuality as an opportunity to feel around the boy’s penis area.”

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