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.

church-state-street-signs

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was over yesterday, though, the city was backing away from the subpoenas and it seems apparent that the request will be withdrawn: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.

FILED UNDER: Law and the Courts, Religion
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. C. Clavin says:
  2. al-Ameda says:

    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.

    The old “the dog ate my court filing” excuse.

  3. gVOR08 says:

    @al-Ameda: Reading lawyers’ comments, sounds like routine business counsel might not have briefed them on, although counsel should have recognized the potential for a PR hit. In any case, part of what they’re paying counsel for is to take the hit.

  4. JKB says:

    I’m in favor of what on blogger, a former preacher, suggested. The pastors ought to go down to the front of city hall, set up a soap box and give those sermons within earshot of the mayor and city attorney.

  5. Pinky says:

    I’ve got to say, I’m stunned that this story seems to be true. It sounded so totalitarian that I assumed it was someone spinning a normal political act into an outrageous story. I don’t know what to make of it.

  6. Modulo Myself says:

    @JKB:

    Right, so everybody knows the thought processes of a bunch of bigoted morons who think they should be able to discriminate against gay people.

  7. pylon says:

    @Pinky: Lawyers routinely ask for broader discovery than that to which they are entitled. I don’t think this was anything more than “ask and maybe we’ll get it”.

  8. Pinky says:

    @pylon: Why would a lawyer want to ask and maybe get that, though? I mean, maybe if they asked, they could have gotten wire-taps on political adversaries, or restraining orders against Jews – but how messed up would you have to be to see those things as (a) constitutional, and (b) valuable?

  9. Paul L. says:

    @Pinky:
    Media Matters defended it

    Now progressives will call for the Republicans and their noise/outrage machine allies to back down from the witch hunt subpoenas that undermine Free Speech and privacy against the saintly DOJ, BATF and IRS. 😉

    Before the DOJ has to Release the Fast and Furious Documents List.

  10. Pinky says:

    @Paul L.:

    Media Matters defended it

    …as did many of the regular commenters on this site. I assume that they didn’t understand it – to be honest, I assumed it couldn’t be what it sounded like, also. The difference is, none of us are credible. Media Matters is supposed to be.

  11. JKB says:

    @Modulo Myself:

    If that is what you think would happen, why would you not support it?

  12. al-Ameda says:

    @JKB:

    The pastors ought to go down to the front of city hall, set up a soap box and give those sermons within earshot of the mayor and city attorney.

    Of course it would then be okay if others came down and played ACDC’s “Highway to Hell” within earshot of those pastors, right?

  13. Modulo Myself says:

    @JKB:

    I totally support it. The Christian message is either toxic or dumb, take your pick. I think it’s amusing that these Christians are so isolated that they really believe there is persecution going on in a simple action for a lawsuit undertaken by said Christians, or that by channeling the Word to explain why businesses should be able to discriminate against gay people or transgenders is going to move anybody worth moving.

  14. Modulo Myself says:

    @al-Ameda:

    They would probably all cry about the intolerance being displayed.

  15. humanoid.panda says:

    @al-Ameda: Silly you. Only sluts who want to get abortions are to be approached at will by people who want to scream at them. Godly people have the First Amendment and Religious Freedom defending them.

  16. humanoid.panda says:

    @Pinky: Media Matters, and many posters on this side were absolutely correct: this is something that is often done in litigation, and not a sign of any persecution of Christians. Now, in a political context, this is a bad PR move, but that is something different altogether.

  17. grumpy realist says:

    @Pinky: I suggest you go to law school and take a few classes in a) evidence, b) civil procedure, and c) litigation.

    How many times do those of us with a legal background have to tell you that this was a bog-standard ordinary request, equivalent to a lot of what we’ve seen already? We’re mildly surprised that the City of Houston attorneys were so aggressive, in light of the First Amendment issues, but that’s a tactical question, not a legal question.

    So the churches, after bringing the lawsuit, were able to make enough of a stink about First Amendment issues that the Houston attorneys have backed down, for now. Now we’ll see if they try something less aggressive and narrow the scope of their request….

    Just because you’re a church doesn’t mean you’re immune to requests of material in discovery.

  18. HarvardLaw92 says:

    @grumpy realist:

    It’s a tactical measure, agreed. While I don’t litigate nearly as much as I used to, one of the first tactics that you learn once you graduate from the world of paper law into the world of real law is that the quickest way to motivate a settlement is to bury the other side in paper that they do not have the resources to respond to.

  19. humanoid.panda says:

    @humanoid.panda: And of course, I am only half kidding. Under the RFRA, pastors who are talking on the side-walk, and women screaming at women seeking abortion, engage in religious activity. If I were to scream at them in return, I would not be not engaged in religious activity and therefore not protected by the RFRA. Ergo, they enjoy freedoms I,as a secular person, lack.

  20. HarvardLaw92 says:

    @Pinky:

    Because that is how discovery works. Why wouldn’t anyone, when involved in litigation, invoke every tool at their disposal which might give them an advantage?

    I mean, we’re talking about litigation, not some sort of delightful ongoing bake sale. It’s SUPPOSED to be nasty and adversarial.

  21. SKI says:

    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.

    Most likely: they were aware subpoenas were being issued but hadn’t read them to realize just how over-broad they were drafted as.

  22. grumpy realist says:

    @HarvardLaw92: Hell, we talked about it in our Patent Litigation class. AND in our Civil Procedure Class. AND in our Evidence class. AND in our Professional Responsibility class…

    I have to say, most of my professors were of the “here’s what the law says. This is what really happens” viewpoint. Particularly funny in my Business Entities class. A lot of it was common business horse sense stuff, then the prof would stop and say: “now here’s the black letter law you need to remember”, and quote it. A lot of the class were aggrieved that they didn’t spend all the time briefing cases. Sometimes I think law students WANT to be masochists!

  23. al-Ameda says:

    @grumpy realist:

    A lot of the class were aggrieved that they didn’t spend all the time briefing cases. Sometimes I think law students WANT to be masochists!

    LOL!
    I can’t tell you how many people I’ve met – in upper management positions in finance and development, in housing, planning, in many other professions – who have started a conversation by saying, “I’m a recovering lawyer.’ They got their law degrees, went to work, and changed careers after a while. Their background in study and practice of the law served them well in other fields.

    I read a quote by a modern legal philosopher (Raphael Morris Cohen?) who said something like, “study of the law sharpens the mind by narrowing it.”

  24. pylon says:

    @Pinky: If I’m seeking discovery of documents, I don’t concern myself much with constitutional questions. Use of such documents at a public trial isn’t being questioned at that time. Further, this is not a constitutional question. If a pastor’s sermon is relevant to the lawsuit, I should be able to get a transcript, if it exists. This doesn’t impinge at all as to the right of free speech.

    And the request here wasn’t that farfetched. If pastors had said something which impacted the propriety of the signatures on the petitions, the statemetns are relevant and probably admissible.

    This was indeed a fishing expedition. However, fishing expeditions are permitted if there is reason to believe there are fish there. Here there was not such evidence, I think.

  25. Barry says:

    @al-Ameda: “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. ”

    Well, for whom were those two ‘pro bono’ attorneys working for?

  26. Barry says:

    @JKB: “I’m in favor of what on blogger, a former preacher, suggested. The pastors ought to go down to the front of city hall, set up a soap box and give those sermons within earshot of the mayor and city attorney.”

    So am I. Then they should print up copies of all sermons, and blizzard City Hall with them.
    Then file a suit for barratry.