Houston's 'sermon-gate' and the abuse of subpoenas

Houston Mayor Annise Parker (AP)

Author's note: Friday, the City of Houston filed a revised subpoena removing the word “sermons” among the documents being demanded, but leaving the word “speeches.”  Legally, this changes nothing.  It is a distinction without a difference. City Attorney Feldman apparently didn’t bother to check a dictionary (any dictionary will do) which describes “sermons” as “religious discourse or speech.” Pastors are therefore still required to turn over to the city their sermons. Feldman is fooling no one.        

“Mr. Jarrett… did you bring your toothbrush?” Those were the words of the Honorable Ira Brown as the imperious “law and motion” judge stared down at me from his bench. I was shaking in my discount loafers. You see, I was being taken to task for issuing a subpoena for documents which I likely had no right to have. That’s when I started groveling.

“Upon reflection, Your Honor, I realize now that I have overstepped my authority and would like to withdraw my subpoena duces tecum. With Your Honor’s permission, of course… uh, respectfully, sir.” My voice was cracking, and opposing counsel was quietly cracking up with laughter.

It was 1980 and I was fresh out of law school. I didn’t know any better. But my humiliation was a lesson well learned. Do not, under any circumstances, exceed the bounds of your power as an attorney to issue subpoenas. After a painful scolding on the responsibilities of a lawyer, Judge Brown allowed me to crawl out of his San Francisco courtroom without holding me in contempt of court and tossing me in the hoosegow overnight.

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If the late Judge Brown were presiding over the current litigation involving Houston’s new non-discrimination ordinance (Woodfill v. Parker), the city attorney would be well advised to bring his toothbrush. And a lot of toothpaste. In my view, he has blatantly abused his power and discretion.

How? By issuing subpoenas to a group of pastors demanding they cough up the contents of their sermons. On subjects like gender identity, homosexuality or Houston’s openly lesbian mayor. But here’s the problem: whatever was preached from a pulpit has nothing whatsoever to do with a lawsuit challenging the city’s decision to invalidate a referendum petition. The sermons are not even tangential to whether signatures are valid. To argue otherwise is inane.

Let’s begin with the basics. Lawyers have the power, granted by court process, to issue subpoenas involving civil cases in which they represent one or more of the parties. They do not have to go running to a judge or court clerk every time they want to force someone to turn over documents and appear for deposition or in court.

However, there is an important caveat. The subpoena may only seek information that is reasonably calculated to lead to the discovery of admissible evidence. In other words, you can’t just demand anything and everything. The information you seek has to be directly relevant to the case. Something that would lead to acceptable evidence at trial. So-called “fishing expeditions” are strictly prohibited.

The case which gives the Houston lawyers subpoena power is a lawsuit that, put simply, claims Houston’s mayor and city attorney were wrong in declaring petition signatures invalid. So the question before the court is whether the petitioners met the terms, conditions and requirements under the city charter.

All the political posturing and war of words from pulpits to street corners is utterly irrelevant. It would never be admissible as evidence in court.

If some pastors have voiced an opinion on the city’s new law which the referendum seeks to overturn, so what? Their words are legally unrelated and immaterial to the case. Moreover, their speech is protected by the First Amendment.

Thus, when the city attorney started demanding the content of sermons he overstepped the bounds of his authority. Some of these pastors are not even parties to the litigation. This is a serious abuse of power.

When a lawyer abuses the court’s process by the misuse of subpoenas, the punishment can be a finding of contempt of court. What then? It’s up to the judge. Usually it is a fine or the paying of the other side’s attorney’s fees. In extreme cases, a lawyer may find himself behind bars.

I wonder what the city attorney and mayor are trying to do with their erroneous subpoenas. Silence critics? Intimidate or “chill” dissent? Deprive people of their free speech rights? That’s the stuff of bullies. But using the court process is against the law.

Mayor Annise Parker now claims she knew nothing about the subpoena. The City Attorney, David Feldman, is blaming outside counsel for writing it.

Really? Good luck with that one. We’ll see if the judge presiding over the case is buying any of this nonsense.

One thing is certain: Feldman is lucky it’s not Judge Ira Brown up there on the bench peering down. Trust me, Mr. City Attorney, you’d be shaking in your loafers and packing a toothbrush.