City of Houston revises subpoena but not enough, ADF says

By Bonnie Pritchett
October 17, 2014
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HOUSTON – On Friday City Attorney Dave Feldman struck the word “sermons” from a subpoena ordering five local pastors turn over their sermons, speeches, and communications with church members as part of an ongoing legal dispute with the city. But attorneys for the pastors said the move is not enough and nothing short of a complete withdrawal of the documents will suffice.

“The city of Houston still doesn’t get it. It thinks that by changing nothing in its subpoenas other than to remove the word ‘sermons’ that it has solved the problem,” Alliance Defending Freedom wrote in response to the city’s actions.

The revision was a preliminary response to ADF’s brief calling on the Harris County 152nd District Court to quash the subpoenas. It followed days of national criticism aimed at the city for what critics called an abuse of power. In his brief Feldman tried to justify the original demand calling the requested material “relevant” because of the pastor’s involvement in the referendum process that is at the heart of the lawsuit.

The petition to repeal a controversial ordinance granting civil rights protections to homosexuals and transgender individuals was thrown out by Feldman claiming the signatory process flawed. The coalition of pastors responsible for the petition sued. The subpoenaed pastors are not part of the lawsuit.

“As we have stated many times, the problem is the subpoenas themselves; they must be rescinded entirely,” the ADF press release stated. “The city must respect the First Amendment and abandon its illegitimate mission to invade the private communications of pastors for the purpose of strong-arming them into silence in a lawsuit that concerns nothing more than the authenticity of citizen petitions.”

From the court revision:

“Request No. 12 originally read:

All speeches, presentations, or sermons related to HERO, the Petition, Mayor Annise Parker, homosexuals, or gender identity prepared by, delivered by, revised by, or approved by you or in your possession.

Defendants hereby revise Request No. 12 as follows:

All speeches or presentations related to HERO or the Petition prepared by, delivered by, revised by, or approved by you or in your possession.”

But the revision still leaves in place demands for “all communications with members of your congregation regarding HERO or the Petition.”

In an attempt to clarify the reasoning for the subpoenas, Feldman stated in the revision, “The non-party recipients of these subpoenas assisted in organizing the referendum petition drive and are believed to have made presentations to circulators and petition signers concerning how to complete the petition forms or other relevant representations concerning the HERO ordinance or petitions. That information is discoverable and not privileged.”

In an interview earlier this week, Erik Stanley, an ADF attorney for the pastors said the circulators followed city charter requirements in performing their duties and any attempt to determine motivating factors for signing a petition violates First Amendment rights as determined by a previous U.S. Supreme Court ruling.