Houston Backs Down On Subpoenas Directed At Pastors Opposing Gay Rights Law
A not surprising outcome to a move that have had motives entirely unconnected to litigation.
I noted yesterday that attorneys for the City of Houston were seeking to subpoena copies of sermons on a wide array of topics from Pastors who were involved in an effort to repeal an ordinance banning discrimination based on sexual orientation, a move that received widespread criticism in the conservative blogosphere as well as from legal bloggers such as Eugene Volokh. Even before the day was over yesterday, though, the city was backing away from the subpoenas and it seems apparent that the request will be withdrawn:
Amid outrage from religious groups, Mayor Annise Parker and City Attorney David Feldman on Wednesday appeared to back off a subpoena request for the sermons of certain ministers opposed to the city’s equal rights ordinance, with Parker calling it overly broad.
The subpoenas, handed down to five pastors and religious leaders last month, came to light this weekwhen attorneys for the group of pastors filed a motion to quash the request. Though Feldman stood behind the subpoena in an interview Tuesday, he and Parker said during the Mayor’s weekly press conference Wednesday that the wording was problematic.
Feldman is monitoring the case, he said, but had not seen the subpoena written by outside counsel working pro-bono for the city until this week. Parker said she also did not know about the request until this week.
“There’s no question the wording was overly broad,” she said. “But I also think there was some misinterpretation on the other side.”
The intent, Feldman said, was simply to get all communications between pastors about the signature gathering instructions, a key part of a lawsuit opponents have brought against the city. Critics filed suit after Feldman announced they had failed to gather enough valid signatures to force a repeal referendum, claiming the city attorney illegally inserted himself in the signature verification process.
Feldman said the city would clarify what it is looking for in its response to the pastors’ motion.
As I noted in my initial post yesterday, there are circumstances in which it would be appropriate to subpoena a Pastor’s sermons, but the problem with the request that the city’s attorneys are making in their initial pleadings is that it was far too broad. Rather than being limited solely to the issues surrounding the signature drive, which is the subject matter of the lawsuit, it was seeking virtually every communication the Pastors had had with their members on the issue of homosexuality, same-sex marriage, and a whole host of related issues. Even leaving aside the First Amendment issues, this would seem to me to be an overly broad discovery request under the applicable Federal Rules of Civil Procedure, which generally limit the scope of discovery to “any matter relevant to the subject matter involved in the action.” The broad subpoena at issue here clearly does not fall within those guidelines, and it seems probable that the city would lose if it chose to pursue the matter and fully defend the subpoenas against the Motion to Quash that was filed. Instead of doing that, though, it appears that they have recognized the error of their ways and will scale back their request. Assuming that they do so appropriately, I don’t see any reason why a discovery request that is limited solely to the issue of the signature drives wouldn’t be allowed to go forward.
Leaving aside the fact that the right thing will apparently be done here, there are still concerns that were raised here that ought not to be dismissed. Neither the Mayor nor the City Attorney claimed to be aware of what was going on in this case, but one has to wonder just how plausible that explanation actually is. This ordinance was very important to the Mayor, and the City Attorney took the lead in initiating the litigation now before a Federal Court in Houston. The idea that one or both of them would not be aware of the status of the case, and unaware that the outside counsel they hired was planning on issuing subpoenas to the people behind the opposition to the ordinance to begin with seems implausible, albeit I suppose its possible. If they were aware and allowed the subpoena to go forward, then it lends credence to the allegation that the move was meant as much as a form of intimidation as anything else, something that would not be uncommon in civil litigation. Even if they were unaware, the outside counsel handling the case would assuredly have been aware of the political message a subpoena like this would send. The fact that they went forward with it anyway suggests that they probably knew it would never stand up in Court, but that they intended it to be some kind of shot across the bow. If so, it seems clear that they lost the public relations war on this one.