Case 1:25-cv-00173-SDN Document 9 Filed 04/24/25 Page 1 of 11 PageID #: 44
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
UNITED STATES OF AMERICA, )
)
Plaintiff, )
) Case No. 1:25-cv-00173-SDN
v. )
)
MAINE DEPARTMENT OF EDUCATION,)
)
Defendant. )
MOTION TO APPOINT SPECIAL COUNSEL TO INVESTIGATE AND PROSECUTE,
AS NECESSARY, FORMAL DISCIPLINARY PROCEEDINGS AGAINST MATTHEW
J. DONNELLY, ESQ. FOR PROFESSIONAL MISCONDUCT
AND REQUEST FOR ORAL ARGUMENT
NOW COMES Randy J. Creswell, Esq., an attorney-at-law in good standing and admitted
to practice before the United States District Court for the District of Maine since 2000
(“Movant”), 1 pursuant to Federal Rules of Civil Procedure 1, 7(b), and 83, D. Me. Local Rules 1,
7(a) and (e), 83.1(c)(2)(A) and (B), (d), and 83.3(a), (b), (d)(1), and (e), and Maine Rule of
Professional Conduct 8.4(a), (d), and (g), and hereby moves for the appointment of special counsel
to investigate and prosecute, as necessary, formal disciplinary proceedings against Matthew J.
Donnelly, Esq.
Attorney Donnelly has committed, and is committing, professional misconduct by
engaging in conduct and communication related to the practice of law and for which Attorney
Donnelly knows or should know constitutes discrimination on the basis of gender identity, all in
violation of Maine Rule of Professional Conduct 8.4(a), (d), and (g), made applicable here pursuant
to D. Me. Local Rule 83.3(a).
In support of this Motion, Movant states as follows.
1
Movant is also a member in good standing of the bar of the State of Maine since 1999.
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I. Facts
On April 16, 2025, Plaintiff, United States of America, filed a Complaint in the above-
captioned action against Defendant, Maine Department of Education (“MDOE”), alleging
violations of Title IX (20 U.S.C. §§ 1681 – 1689) because of the State of Maine’s recognition and
protection of gender identity as a civil right. See generally Complaint (ECF No. 1), preamble and
¶¶ 37 – 39.
The Complaint is signed by Attorney Donnelly, an attorney employed by the United States
Department of Justice in Washington, D.C. Attorney Donnelly represents Plaintiff in this
proceeding. Attorney Donnelly is not a member of the bar of the State of Maine. Because,
however, he is a government attorney, he is granted leave to appear and practice before this Court.
D. Me. Local Rule 83.1(c)(2)(A)(i), (ii), (iii).
In its Complaint, Plaintiff alleges, inter alia, that Title IX and its implementing regulations
(34 C.F.R. §§ 106.1 – 106.82) “use of the term ‘sex’ means biological sex; the term ‘sex’ does not
mean gender identity.” Complaint ¶ 22. That is false. 2
From that false predicate, Plaintiff, through Attorney Donnelly’s representation, conduct,
and communication in this proceeding, intentionally seeks to discriminate against persons – who
2
See, e.g., L.B. & M.B., individually & on behalf of their minor child A.B.; C.M. & A.H., individually & on behalf of
their minor child J.M.; & on behalf of others similarly situated, Plaintiffs, v. PREMERA BLUE CROSS, Defendant.,
2025 WL 1149630, at *6 (W.D. Wash. Apr. 18, 2025) (“Courts have reached conflicting conclusions concerning how
‘sex’ should be defined” under Title IX.”); cf. Bostock v. Clayton Cnty., 590 U.S. 644, 651–52 (2020) (“An employer
who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have
questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what
Title VII forbids.”); Roe by & through Roe v. Critchfield, 131 F.4th 975, 990 (9th Cir. 2025) (“Neither Title IX nor
its implementing regulations defines the term.”).
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are adolescents and fellow human beings – on the basis of gender identity. See Complaint ¶¶ 70,
81 – 84, 90 – 93, 100, 3 102, 103 – 108, 110, 4 – 113, 121, 123, 5 125. 6
In particular, Attorney Donnelly, in furtherance of his representation of Plaintiff, alleges in
the Complaint that, “[a]fter Executive Orders 14168 and 14201, which confirmed Title IX’s term
‘sex’ means biological sex, MPA’s executive director stated that the Executive Orders and Maine’s
Human Rights Act are in conflict and that the MPA would continue to follow the state’s law when
it comes to gender identity.” Complaint ¶ 136. Attorney Donnelly goes on to allege that, “[o]n
February 21, 2025, in response to Executive Orders 14168 and 14201, Maine Governor Mills
stated that Maine was going to continue to allow boys to compete in girls’ sports and that the
federal executive branch would need to file a lawsuit to attempt to secure compliance with Title
IX, and at one point stating: ‘We’ll see you in court.’” Complaint ¶ 137. 7
Count I of Plaintiff’s Complaint, signed by Attorney Donnelly as its counsel, alleges that
MDOE is in violation of “Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et
seq. and its implementing regulations” due to its recognition and protection of gender identity as
a civil right, and that “[u]nless restrained by this Court, Defendant will continue to violate Title
IX.” Complaint ¶¶ 157, 159. See also Count II of Complaint.
In its Prayer for Relief, advocated by Attorney Donnelly, Plaintiff seeks, inter alia:
(1) a declaratory judgment that MDOE’s recognition and protection of gender identity
as a civil right violates Title IX;
3
“Student A is a boy currently and recently competing as [sic] on the girls’ track and field team ....” Complaint ¶ 100.
4
“Student B is a boy currently and recently competing in girls’ skiing ….” Complaint ¶ 110.
5
“Student C is a boy recently competing on the . . . girls’ basketball team.” Complaint ¶ 123.
6
“Beyond Students A, B, and C, other boy athletes have competed in, and will continue to compete in, athletic sports
and competitions designated for girls ....” Complaint ¶ 125.
7
Governor Mills’ full statement was, “I am complying with State and federal laws,” and came in response to Donald
Trump’s statement that “I am, we are, the federal law.” Trump is a convicted felon for Falsifying Business Records
in the First Degree. See The People of the State of New York v. Donald J. Trump, Indictment No. 71543-23 (Supreme
Court of the State of New York, County of New York: Part 9). He is the individual currently vested with the “executive
Power” of the United States of America. See U.S. Const. art II, § 1, cl. 1. He is not “the federal law.” See U.S. Const.
art. I, II, and III.
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(2) a permanent injunction barring MDOE from recognizing and protecting gender
identity as a civil right, thereby directly, intentionally, and specifically
discriminating against persons solely on the basis of gender identity; and
(3) a permanent injunction ordering and requiring MDOE to, in fact, discriminate
against persons solely on the basis of gender identity, and which permanent
injunction would also order and require MDOE to direct “all Maine schools” to
discriminate against persons solely on the basis of gender identity.
See Complaint, Prayer for Relief, pp. 29, 30.
II. Discussion
While discrimination against other human beings on the basis of, for example, ethnicity,
national origin, or, in this instance, gender identity, is ugly, repugnant, and contrary to this
country’s professed beliefs in equality for all persons, private actors and citizens are nevertheless
currently free to hold those repellent personal prejudices. Attorneys engaged in the practice of law
on behalf of clients before this Court, however, have professional and ethical obligations and duties
separate and apart from their clients to refrain from engaging in such ugly discrimination against
other human beings, including all persons on the basis of gender identity.
We take this opportunity to remind Maine’s attorneys of their ethical obligations as
members of the legal profession. Attorneys, unlike their clients, are subject to the
Maine Rules of Professional Conduct. See M.R. Prof. Conduct 8.4 cmt. 1
(“Lawyers are subject to discipline when they violate or attempt to violate the Rules
of Professional Conduct ....”). Attorneys are bound by the contents of the briefs
they sign. See M.R. Prof. Conduct 3.3 cmt. 3 (“An advocate is responsible for
pleadings and other documents prepared for litigation....”). Therefore, when a
client who is represented by counsel insists on presenting any argument or assertion
that is not endorsed by the attorney – particularly one that, if made by the attorney,
might violate the Maine Rules of Professional Conduct, see M.R. Prof. Conduct 1.2
cmt. 13 – such argument or assertion should not be incorporated into the brief
drafted and submitted by the attorney. Rather, it is incumbent upon the attorney to
advise the client to obtain leave of the Court to independently present the argument
or assertion in a separate brief or writing signed by the client only.
State v. Williams, 2020 ME 17, ¶ 27, 225 A.3d 751, 760 (emphasis in original).
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Unfortunately here, as is plain from the allegations of the Complaint, Attorney Donnelly is
violating his professional and ethical obligations and duties to this Court. Attorney Donnelly is
actively and knowingly engaging in conduct and communication in this proceeding, through his
representation of Plaintiff, that is – specifically and intentionally – discriminatory against Students
A, B, C, and all other similarly-situated persons in Maine, on the precise and sole basis of gender
identity.
That is professional misconduct on Attorney Donnelly’s part pursuant to this Court’s Local
Rules 83.3(a) and (b) and Maine Rule of Professional Conduct 8.4(a), (d), and (g).
A. D. Me. LBR 83.1
Attorney Donnelly, as a government attorney for Plaintiff, is granted leave to appear and
practice before this Court pursuant to D. Me. Local Rule 83.1(c)(2)(A)(i), (ii), (iii), and (iv). 8 And,
having been permitted to appear before this Court, Attorney Donnelly has also conferred
disciplinary jurisdiction on this Court with respect to his violations of his professional and ethical
obligations for his discrimination against persons, including Students A, B, and C, on the basis of
gender identity. See D. Me. Local Rule 83.3(a) (“Any attorney . . . who is permitted to appear and
practice before this Court confers disciplinary jurisdiction on the Court for any alleged misconduct
of that attorney.”).
B. D. Me. LBR 83.3
D. Me. Local Rule 83.3(a) provides that this Court has adopted as its own the Maine Rules
of Professional Conduct. Id. (“Standards of Professional Conduct. This Court adopts as its
standard for professional conduct the Maine Rules of Professional Conduct adopted by the
Supreme Judicial Court of Maine, as amended from time to time by that Court.”).
8
D. Me. Local Rule 83.1(c)(2)(B) requires that Attorney Donnelly “read and comply with” this Court’s Local Rules.
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C. Maine Rule of Professional Conduct 8.4
In turn, Maine Rule of Professional Conduct 8.4 provides (in relevant part) as follows:
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate any provision of either the Maine Rules of
Professional Conduct or the Maine Bar Rules, or knowingly assist or induce
another to do so, or do so through the acts of another; . . .
(d) engage in conduct that is prejudicial to the administration of justice; . . . or
(g) engage in conduct or communication related to the practice of law that the
lawyer knows or reasonably should know is harassment or discrimination on
the basis of . . . gender identity.
(1) “Discrimination” on the basis of . . . gender identity as used in this
section means conduct or communication that a lawyer knows or
reasonably should know manifests an intention: to treat a person as
inferior based on one or more of the characteristics listed in this
paragraph; to disregard relevant considerations of individual
characteristics or merit because of one or more of the listed
characteristics; or to cause or attempt to cause interference with the
fair administration of justice based on one or more of the listed
characteristics. . .
(3) “Related to the practice of law” as used in the section means occurring
in the course of representing clients; interacting with witnesses,
coworkers, court personnel, lawyers, and others while engaged in the
practice of law . . . .
M.R. Prof. Conduct 8.4.
The foundational basis for Plaintiff’s Complaint and its claims for relief against MDOE, as
communicated by Attorney Donnelly in his conduct and representation of Plaintiff before this
Court, is literally the intentional discrimination against persons, including Students A, B, and C,
on the basis of gender identity, all of which violates M.R. Prof. Conduct 8.4(a) and (g) in particular.
See also Bd. of Overseers of the Bar v. Brown, 2023 ME 58, ¶ 12 n.6, 301 A.3d 793, 798 (“‘It is
professional misconduct for a lawyer to: (a) violate or attempt to violate any provision of either
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the Maine Rules of Professional Conduct or the Maine Bar Rules, or knowingly assist or induce
another to do so, or do so through the acts of another.’ M.R. Prof. Conduct 8.4(a).”).
Under this Court’s Local Rules and adopted Maine Rules of Professional Conduct, this
Court should appoint a special counsel to investigate and prosecute, as necessary, formal
disciplinary proceedings against Attorney Donnelly for his and that professional misconduct. See
D. Me. Local Rule 83.1(d) and 83.3(d)(1) and (e).
Finally, with respect to Me. R. Prof. Conduct 8.4(g), Attorney Donnelly’s professional
misconduct does not fall under either advocacy exception set forth in 8.4(g)(4). As expressly set
forth in the Complaint, he is neither advocating Plaintiff’s “policy position” nor for a “change[s]
in the law” with respect to Plaintiff’s intentional discrimination against persons based upon gender
identity.
Nothing in the Complaint alleges, claims, asserts or remotely suggests that it is simply
Plaintiff’s “policy position” that MDOE is violating Title IX. To the contrary, everything alleged
in the Complaint by Attorney Donnelly directly and affirmatively alleges, states, and claims that
MDOE is in direct violation of Title IX itself, as federal law, and not simply Plaintiff’s policy
position concerning that federal law. See, e.g., Complaint, preamble (“The State of Maine, through
its Department of Education, is openly and defiantly flouting federal anti-discrimination law . . .
.”) (emphasis added); Id. ¶ 1 (“The United States brings this action to enforce Title IX of the
Education Amendments of 1972, 20 U.S.C. § 1681 et seq. and the implementing regulations of the
United States Department of Education, 34 C.F.R. Part 106, and Department [sic] Health and
Human Services, 45 C.F.R. Part 86.”); Id. ¶ 6 (“Defendant continues to violate federal law. Despite
Title IX’s equal opportunity mandate….”); Id. ¶ 8 (“The United States accordingly seeks a
judgment . . . for Defendant’s violations of Title IX….”); see also Complaint ¶¶ 17 – 21, 24 – 30,
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87, 132 – 135, 140, 145 – 147, 151, 156 (Count I – Violation of Title IX), 157 (same), 161 (Count
II – Violation of Title IX Contractual Assurances), 162 (same), and Prayer for Relief ¶¶ (a), (b),
(c) (emphasis added).
If undersigned counsel has that wrong, and it is, in fact, just Plaintiff’s “policy position”
that MDOE is out of compliance with Title IX, as opposed to actually being in violation of that
federal law (notwithstanding every allegation to the contrary), whether due to the Orwellian named
and drafted Executive Orders 14168 and 14201 or otherwise, then this Motion can be denied
without further consideration. At that point, Plaintiff’s Complaint should also be dismissed. It
would also then be fair to question whether Attorney Donnelly satisfied his filing obligations with
respect to the Complaint in the first instance under Federal Rule of Civil Procedure 11(b).
MDOE is obviously not bound by any mere policy position of the Executive Branch of the
federal government. In that regard, MDOE is only bound by the United States Constitution and
actual federal law. 9 Nor is any state, university, college, law firm, organization, or person bound
by unconstitutional or unenforceable Executive Orders. See, e.g., Doe v. Trump, 2025 WL 485070,
at *16 (D. Mass. Feb. 13, 2025) (“What the Constitution has conferred neither the Congress, nor
the Executive, nor the Judiciary, nor all three in concert, may strip away.” Nishikawa, 356 U.S. at
138, 78 S. Ct. 612 (Black, J., concurring). Here, the Constitution confers birthright citizenship
broadly, including to persons within the categories described in the [Executive Order].”); see also
CASA, Inc. v. Trump, 2025 WL 408636, at *4 (D. Md. Feb. 5, 2025) (“The plaintiffs claim the
Executive Order violates the Fourteenth Amendment's Citizenship Clause. There is no question
that the Court may review the constitutionality of the Executive Order and grant injunctive relief.
The Supreme Court consistently has “sustain[ed] the jurisdiction of federal courts to issue
9
See, e.g., State of Maine v. United States Department of Agriculture, et al., Case No. 1:25-cv-00131-JAW.
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injunctions to protect rights safeguarded by the Constitution.” See Bell v. Hood, 327 U.S. 678,
684, 66 S.Ct. 773, 90 L.Ed. 939 (1946); see also Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74,
122 S.Ct. 515, 151 L.Ed.2d 456 (2001) (“[I]njunctive relief has long been recognized as the proper
means for preventing entities from acting unconstitutionally.”). The Supreme Court has affirmed
that “the President's actions may … be reviewed for constitutionality.” See Franklin v.
Massachusetts, 505 U.S. 788, 801, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992); see also Dalton v.
Specter, 511 U.S. 462, 473–74, 114 S.Ct. 1719, 128 L.Ed.2d 497 (1994).”).
Nor is Attorney Donnelly advocating for a “change[s] in the law” of Title IX. The version
of Title IX that existed on January 19, 2025 is the same as the version of Title IX that existed
sixteen days later on February 6, 2025, after the issuance of Executive Orders 14168 (January 20)
and 14201 (February 5). See Complaint ¶¶ 1, 6, 8, 17 – 21, 24 – 30, 87, 132 – 135, 140, 145 –
147, 151, 156, 157, 161, 162. Attorney Donnelly and his client are not advocating for a “change”
of Title IX. They are seeking to “enforce” it by intentionally discriminating against human beings
on the basis of gender identity.
D. Attorney Donnelly is Entitled – As With All Persons – to Due Process
As set forth above, it is Movant’s view that Attorney Donnelly has and is engaging in
professional misconduct under Me. Rule. Prof. Conduct 8.4(a), (d), and (g). Whether that is true,
however, is for this Court to decide. But before the Court can make that determination, Attorney
Donnelly is – as he should be, given this Country’s centuries-long commitment to the fundamental
rights of due process and an opportunity to be heard – entitled to a fair opportunity to file any
response or other opposition he deems appropriate to this Motion. See D. Me. Local Rule 7(b).
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Then, once the facts, issues, and legal arguments have all been briefed and submitted to the
Court for consideration, the Court will have an opportunity to review the filings, consider the
arguments and law, and render its findings of fact and conclusions of law.
Moreover, even if the Court does conclude at the end of that preliminary process that there
are “allegations of misconduct . . . which, if substantiated, would warrant discipline or other
corrective action,” then the Court may take the next step and appoint a special counsel to
investigate the matter further, which process itself will introduce more and additional safeguards
of due process, notice, and an opportunity to be heard (see D. Me. LBR 83.3(d)(2)). In other
words, Attorney Donnelly, as with all persons, is – and should be – entitled to due process.
E. Standing
Under First Circuit authority, having become aware of Attorney Donnelly’s professional
misconduct before this Court through his intentional and discriminatory advocacy on behalf of his
client against persons based solely upon gender identity, Movant was obligated to bring Attorney
Donnelly’s professional misconduct to the Court’s attention.
[W]e should not be misinterpreted as discouraging district courts from conducting
inquiry into suspected unethical behavior when the particular circumstances appear
to warrant it. Nor do we intend to silence parties or counsel who encounter
impropriety on the part of an opponent. On the contrary, “(w)hen an attorney
discovers a possible ethical violation concerning a matter before a court, he is not
only authorized but is in fact obligated to bring the problem to the court’s attention”,
In re Gopman, 531 F.2d 262, 265 (5th Cir. 1976). . . . Having done so, however,
the role of a party or counsel is at an end. It remains for the court to vindicate its
authority, if it so chooses….
Ramos Colon v. U.S. Atty. for Dist. of Puerto Rico, 576 F.2d 1, 8–9 (1st Cir. 1978) (Coffin, C.J.)
III. Conclusion
WHEREFORE, for all these reasons, Randy J. Creswell, Esq., an attorney-at-law in good
standing and admitted to practice before this Court, pursuant to District Court Local Rules
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83.1(c)(2)(A) and (B), and (d) and 83.3(a), (b), (d)(1), and (e) and Maine Rule of Professional
Conduct 8.4(a), (d), and (g), hereby requests that this Court:
(i) appoint special counsel to investigate and prosecute, as necessary, formal
disciplinary proceedings against Matthew J. Donnelly, Esq., arising from his
professional misconduct and engagement in conduct and communication related to
the practice of law that he knows or should know is discrimination on the basis of
gender identity;
(ii) grant and schedule, in the strong public interests of: (a) rejecting discrimination in
all its forms, including specifically gender identity; (b) vindicating and enforcing
the Court’s adopted rules of professional conduct for attorneys appearing and
practicing before it; and (c) maintaining the confidence of the public at large, as
well as all the members of this federal bar, in the judiciary’s independence as a co-
equal branch of the federal government, oral argument on this Motion; and
(iii) grant Movant such other and further relief as may be just and equitable under the
circumstances.
Dated at Portland, Maine this 24th day of April, 2025.
/s/ Randy J. Creswell
Randy J. Creswell, Esq.
CRESWELLLAW
PO Box 7340
Portland, ME 04112
207.358.1010
rcreswell@creswelllaw.com
CERTIFICATE OF SERVICE
I hereby certify that, pursuant to Federal Rule of Civil Procedure 5 and District Court Local
Rule 5(c), I have served on this day the above Motion for Appointment of Special Counsel and
this Certificate of Service upon each of the parties listed on the Notice of Electronic Filing via the
Court’s Administrative Procedures Governing the Filing and Service by Electronic Means.
Dated at Portland, Maine this 24th day of April, 2025.
/s/ Randy J. Creswell
Randy J. Creswell, Esq.
CRESWELLLAW
PO Box 7340
Portland, ME 04112
207.358.1010
rcreswell@creswelllaw.com
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