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Litigator of the Week: Michael Kimberly of Mayer Brown

25 August 2016
The AmLaw Litigation Daily

For most litigators, a win at the U.S. Supreme Court is a career highlight. And so it was for Mayer Brown partner Michael Kimberly, who in December won a unanimous ruling that revived a lawsuit accusing Maryland officials of partisan gerrymandering.

But Kimberly said that his latest win in the lower court after the justices sent the case back was actually more exciting. The Supreme Court had held that Kimberly’s clients were entitled to have their claims that state redistricting plans violated the First Amendment heard by a three-judge panel. On Aug. 24, that panel said in a 2-1 decision that the case could survive a motion to dismiss brought by the state.

“Here we worked really hard I think to put forward the strongest version of the argument, and to have a panel actually endorse it … was deeply gratifying,” Kimberly said.

A group of Maryland residents filed the case pro se in 2013. They argued that Democratic officials ran afoul of the First Amendment when they redrew the state’s electoral map to turn a once-stalwart Republican district blue. The plaintiffs, who are Republican, said that they were being retaliated against for their political beliefs.

The plaintiffs asked to have the case heard by a three-judge panel, as is typically required under federal law in cases that challenge the constitutionality of congressional redistricting. A federal district judge denied that request and dismissed the case, finding that the new electoral map didn’t restrict the plaintiffs from participating in the political process.

The U.S. Court of Appeals for the Fourth Circuit upheld the judge’s decision. At that point, Kimberly said, one of the lead plaintiffs, Stephen Shapiro, a law student at American University Washington College of Law, was shopping for a law firm interested in taking the case to the Supreme Court.

“As I think is typical when you’re talking about a pro se plaintiff and a short per curiam affirmance from the Fourth Circuit, I think most firms didn’t take the request especially seriously and didn’t spend a lot of time looking into it,” Kimberly said.

But Kimberly did. A member of the firm’s appellate practice, he was looking for his next case to take to the high court, and he had experience with First Amendment retaliation claims. It was a match. Working pro bono, he filed a petition with the Supreme Court, and it was granted. He argued the case in November—his first time ever arguing before the justices.

The First Amendment retaliation theory as it relates to redistricting appeared in a concurrence that Justice Anthony Kennedy wrote in a 2004 case. In that opinion, Kennedy mused that if “a state did impose burdens and restrictions on groups or persons by reason of their views, there would likely be a First Amendment violation, unless the state shows some compelling interest.”

Kimberly said it was rare to see what was essentially an invitation from a justice make a particular argument. And critically, that invitation came from Kennedy—“the justice who is often a deciding vote,” Kimberly  said.

After the case was sent back, Kimberly worked with the plaintiffs to craft an amended complaint that honed in on the First Amendment argument. He also brought on more plaintiffs with standing to sue.

The three-judge panel consisted of Fourth Circuit Judge Paul Niemeyer and Maryland federal district judges James Bredar and George Russell III. Niemeyer, joined by Russell, wrote in the Aug. 24 decision denying the state’s motion to dismiss that the complaint “adequately employs First Amendment jurisprudence to state a plausible claim for relief.” Bredar, the original judge assigned to the case, dissented.

When the decision came down, Kimberly’s celebration options were easy: he was already on vacation in Disney World.

As the case proceeds, he’ll remain involved, but Mayer Brown lawyers with more trial experience will join the team. A final decision by the three-judge panel would be appealable directly to the Supreme Court, so a second round before the justices could be in his future.

Contact Zoe Tillman at .

Reprinted with permission from the August 25, 2016 edition of The AmLaw Litigation Daily © 2016 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.

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