Houston Did Not Need A “HERO”
The Legal Wilderness
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Houston Did Not Need A “HERO”
Not long ago, in Houston, Texas we had a problem. Perhaps you have seen or heard about then Mayor Parker of Houston, the City Council of Houston, an in house attorney for the City of Houston, a few ordained, Christian ministers, and some 50,000 of the City of Houston’s citizens having a dispute amongst themselves. It was all over the news and even made Fox News when it first happened.
It seems the City Council, at the strong urging of the Mayor, passed an ordinance (the “HERO” ordinance) allowing individuals to choose whichever bathroom facility they wish, Mens or Womens, wherever in the City they might be and whether they were men or women, irrespective of how that might offend, frighten, impose upon, or disgust other citizens of the city.
Within a fairly short period of time, a petition was presented to the City, seeking a vote to be on a ballot referendum in Houston on whether the ordinance should be rejected. That is a specific option (or remedy if you chose) provided under City of Houston ordinances and Texas law, for removing an ordinance. The petition, in order to be allowed, had to have a minimum of 17,000 citizen signatures. This particular petition had over 50,000 citizen signatures.
Now bad things began to come about. The City of Houston, no doubt upon the urging of the Mayor and especially no doubt, based upon the advice of the in house counsel for the City, chose to reject the petition, citing unspecified, and rather dubious claims of discrepancies in the signatures. Really? Out of 50,000 signatures gathered in accordance with the procedures for such petitions, 17,000 good signatures could not be found? Ask yourselves, does that “smell right”? No. I am sure if it were a petition for something the Mayor and City Council wanted, another result would have been achieved.
Now, fellow Texans, ask yourself what you would or can do if over 50,000 of you signed a petition seeking a referendum on a City ordinance, which Texas law clearly states you can do, and the Mayor of the city “flips you off”? You read it correctly, “FLIPS YOU OFF”. Doesn’t just ignore you, like politicians are want to do, but tells you directly you have no rights, you cannot exercise those rights, shut up and sit down. The answer is pretty clear, you file a lawsuit…or you start a revolution. After all, 50,000 Texas citizens are a lot of people. Hell, Santa Ana only had 20,000 and none of them were Texas citizens! They got their collective butts kicked by Sam Houston who had a lot fewer people helping him.
Well, cooler heads prevailed and representatives of those 50,000 Texans filed a lawsuit against the City of Houston, the Mayor and the City Council seeking to have restored to them what the Mayor had taken away from them; their right to petition government for grievances, the right to insist upon a referendum on the City Ordinance so that all Houstonians could vote on it. The lawsuit was pretty straightforward, seeking to compel the City Council and the Mayor to set up a special referendum vote regarding the ordinance that is the subject of the petition. In effect saying, “Please make the politicians stop trampling on the rights of citizens and re-enfranchise those 50,000 citizens who exercised their God given rights as outlined in various Federal, State, and local laws and documents and at least one document preceding the existence of the US government” (The Declaration of Independence).
So now, really bad things began to happen. The City of Houston, acting through a law firm and at the direction of an “in house” lawyer in the City Legal Department, decided to issue subpoenas to a group of ministers of local Houston churches including several predominantly black churches, none of whom were parties to the lawsuit, demanding they produce copies of their sermons, especially those that referred to the Mayor, the ordinance, or those who supported the ordinance being passed.
Let me very briefly explain something about subpoenas in Texas. They are a discovery device that, under the power of a court, are an order that, if refused, can result in an order of the court to comply. Subpoenas are backed up by the power of the court to hold someone refusing to comply in “contempt of the court”. That can lead to a jail sentence and other punitive sanctions. They are not to be issued or dealt with “lightly”, meaning they are serious and their use must be appropriate and only for appropriate purposes. There are many, many ways for a party to a lawsuit to get information, documents, or data from a non-party to the lawsuit without using a subpoena. Let me tell you now something in plain Western Kansan you will hear again, shortly: “There are 1,001 ways to get the information sought by the subpoenas in this case WITHOUT RESORTING TO A SUBPOENA”.
Subpoenas, if abused or mis-used, can become a device that abuses, intimidates, frightens, or angers ordinary citizens. Therefore, courts and especially judges, are very, very careful to oversee the use of subpoenas. So careful, that not just anyone can cause a subpoena to be issued. It is restricted to attorneys who are members of the Texas Bar or admitted on a special order to practice before the court. They are charged, as “Officers of the Court” to use the subpoena power correctly, and appropriately. Judges rely on attorneys to handle that very important, and powerful process. Failure to properly exercise this power is a very serious and inappropriate offense. This offence is called “Abuse of Process” and is a separate right of action under Texas law against someone who commits the offense.
Apparently, the local and national media got wind of the subpoenas and contacted the in house counsel for the City, a member of the City of Houston “Legal Department”, who was responsible for having the subpoenas issued. He decided to talk with these reporters, knowing they were reporters. He is purported by such reporters to have said he had “nothing against” any of the pastors but was just trying to “defend against a law suit”. When asked if the Mayor knew of the subpoenas being issued, he indicated “not until you guys (the reporters) put them all over the media”, or words closely to that effect. The Mayor did not know that the subpoenas had been issued?! Well, the Mayor is a “client” to this in house attorney. Attorneys are supposed to represent their client and ensure they are informed of major issues and decisions in lawsuits in which the client is a named party. Further, the Mayor is entitled to confidentiality as to not only communications with the attorney but also to such things as what the Mayor did and did not know, when and similar types of information. Did the Mayor authorize the attorney to talk with national media? Did the attorney really not tell the Mayor about the subpoenas? All this is confusing to an old attorney such as myself but it would seem the attorney acted without direction of the client or the client, directly or indirectly, authorized the attorney to take the action. And, by the way, did the client authorize the attorney to talk with the national media and disclose the confidential and privileged information about what the Mayor knew or didn’t know? All interesting questions that a client should seek the answers to from the attorney.
Fast forward a bit. All Hell begins breaking out about the subpoena of Heavenly inspired words, documents, and information! The in house attorney for the City of Houston begins to feel uncomfortable about all that has gone before, and, according to media representatives, tells them that he didn’t really prepare or issue the subpoenas, he had outside attorneys, working in a law firm, draft the subpoenas, advise him to authorize the filing of the subpoenas and it was really the outside counsel’s fault for coming up with the idea and actually filing the subpoenas. Then the in house attorney announces that the subpoenas will be amended to drop the word “sermon” but the subpoenas would stand otherwise as to the ministers. Finally…… on Halloween, October 31st, the national media, even those who are “chummy” with the Mayor and City Council, report that the Mayor has withdrawn the subpoenas, saying “religious freedom” issues should not be involved in this case. How about that! Victory, right!? Wrong!
The Mayor and the City Council reiterated they would not agree to accept the petition signed by 50,000 Houstonians seeking a referendum on the ordinance. The lawsuit was to continue on, presumably being defended by the in house attorney and his outside counsel “fellow travelers” unabated.
A very wise Houston attorney told me recently that government must govern and conduct itself responsibly and appropriately, if it wishes to continue to govern! That is government’s duty. You must recognize and protect and acknowledge the rights of people with whom you do not necessarily agree. The Mayor, the City Council and their attorneys, in house and outside counsel, were abusing fundamental rights of 50,000 Texas citizens. It makes no sense at all for politicians, and it is outrageous for attorneys to be involved in acts that ignore the fundamental constitutional rights of 50,000 citizens. The Mayor and City Council should have immediately accepted the petition and had the election. They should have “Let Freedom and Democracy ring” in Houston again.
The biggest issue I see in this entire mess is that The Mayor and the City Council either lost control of their legal counsel or used them to conduct an inappropriate and possibly illegal action, which was to use the power of a court subpoena to attempt to intimidate citizens, to beat them into submission, to frighten them. This is unacceptable. Either the Mayor and the City Council are victims of substandard legal service, or they have improperly used such legal service, in which case, the lawyers involved should have advised against the activity.
If a party to a lawsuit really thinks they need information from non-parties remember, there are 1,001 ways to get that information BEFORE using a subpoena. Call them, write them, seek a discovery conference at which such information is discussed. Ask the court to oversee the need for information and listen to all parties on such issues. Those are just a few ways. One more; perhaps the Mayor and City Council members should have attended those churches and listened for themselves to what their constituents were saying about the Houston government…..but that was their choice as a citizen of Texas, and members of government.
This story has an interesting ending, so let me tell you “the rest of the story”. The legal struggle, without subpoenas to church preachers, workers or attendees, continued through a ruling at the trial court level that there were not sufficient names on the petition. Remember, there only needed to be 17,000 such signatures and over 50,000 were submitted. It smelled then, and it smells worse now. The Texas Supreme Court took up the matter and ruled, in July, 2015 that the City much either repeal the ordinance or place it on a ballot. The Council voted 12-5 to place the ordinance on a ballot. In an election in November, 2015, the ordinance was defeated, or crushed, by a 61% to 39% margin. Not even close. The ordinance was removed from City laws by action of the citizens of the City of Houston.
The Mayor and supporters of the ordinance were quoted in the Houston Chronicle as bemoaning that they did not get their message across to “their” voters and specifically mentioned the black voters of the City of Houston. Well, first, the Mayor and the apparent majority of the City Council do not “own” any voters, any voting block, or any ethnic group of voters. Period. But more importantly, let us all be clear about something. When the Mayor and the City Council responded to a list containing 50,000 citizens’ signatures asking for a vote, by disqualifying them out of hand; then they delivered subpoenas’, in violation of the First Amendment of the US Constitution, to churches, including several predominantly black churches, seeking to intimidate their preachers from speaking to their members about the ordinance, they sent an unmistakable message to all citizens of Houston. They behaved as thugs and criminals, seeking to use the court system to intimidate church goers into silence and inaction. The election was over the day that it was scheduled. Democracy prevailed. Democracy was placed into action as it was intended to be by the US and Texas Constitutions. The Mayor is now a former mayor, having left office. The City Council remains, but somewhat differently constructed and, perhaps chastened. But I doubt it. The in house counsel left his position and is in the private practice of law in the Houston area. The outside counsel? They are out there doing what they do, for other clients.
Who mourns for Adonis? No One.
The problem Houston had in this situation is Lawyers and the Legal Profession. Lawyers have mismanaged the profession. I remind you of the incredible power they have to issue subpoenas demanding information and threatening jail and penalties if their targets do not acquiesce to their demands.
When lawyers use their power to intimidate or bully, they abuse it. We live in a culture of intimidation and acquiescence in this country. Lawyers have created much of that culture and the legal profession must disassemble that culture.
The story above is re-enacted and recreated every day all across this country in abusive litigation and litigation tactics from local, state and federal district courts to bankruptcy courts at the behest of governments, such as the City of Houston, and including governmental agencies such as the IRS and EPA. All of this abusive, overreaching, improper activity is directed, managed, urged, empowered or allowed by lawyers.
President Carter said the following while addressing the American Bar Association, “..... America is over lawyered and under represented.” This story is a clear example of what the former President meant by his remark.
If you are free and able to enjoy fully exercising your rights as set forth in the US Constitution, and the Declaration of Independence, (to name a few fundamental documents that protect us), then my friends, at least as to today, it might be inspite of attorneys and not because of them.
There are many good, decent attorneys all across this country. They need to help the citizens of this country remake our dysfunctional legal culture. Many true patriots in 1776 were attorneys but I believe that between then and now, our profession has lost its way.
HOUSTON…. WE DO HAVE A PROBLEM and now you know what it is. We all have this problem.