9th Circuit reverses sanctions against 'anti-gay' church

, The National Law Journal

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A federal appeals court has thrown out sanctions leveled against what it described as an anti-gay church in Michigan over discovery demands the church made in a lawsuit against protestors who disrupted services four years ago.

The U.S. Court of Appeals for the Ninth Circuit on November 26 reversed a lower court ruling that had imposed about $28,000 in sanctions against Mount Hope Church in Lansing, Mich. The appeals panel rejected the lower court's finding that the church's discovery demands made against Riseup Networks, a Seattle-based email account provider for activists, were overly burdensome.

The church had demanded the information through a so-called subpoena duces tecum, a request made under civil procedure law requiring the holder of the information to appear with documents in court.

Noting a scarcity of case law on what defines overly burdensome requests of this type, the Ninth Circuit ruled that the sanctions, which covered Riseup Network's attorney fees and costs, were inappropriate for three reasons.

"Holding that [the civil procedure rule] cannot properly support a sanction where the cost of complying with the subpoena is minimal and there is no showing that the subpoena was facially defective or issued in bad faith, we reverse," wrote Judge Ronald Gould, for the panel. Other panel members were Judge Mary Schroeder and Judge Jed Rakoff of the Southern District of New York, sitting by designation. The appeal came from a July 2011 decision by Judge Richard Jones of the Western District of Washington.

The November 26 ruling stems from a protest held by a group called Bash Back! at Mount Hope Church, which the appeals court described in its decision as "promoting anti-gay beliefs."

More than 30 people participated in the November 2008 demonstration, composed mostly of gay, lesbian, bisexual and transgender activists. Some of the individuals protested in front of the church while others, according to the decision, snuck inside the church through the back door. Participants chanted phrases such as "It's OK to be gay" and "Jesus was a homo," while flinging pamphlets, glitter and condoms into the air, according to the decision.

Following the demonstration, Mount Hope Church sued Bash Back! under common law trespass and under the federal Freedom of Access to Clinic Entrances Act, seeking an injunction to prevent the group from protesting services in the future. Riseup Networks was not a defendant in the action.

The lawsuit identified 14 individuals by name and several "John Doe" defendants. After the case was filed, the church sought to obtain the identities of the Doe defendants through the subpoena duces tecum against Riseup Networks. The church believed that the defendants had used the email account service to organize the protest. The appeals court noted that the church did not request the content of the emails.

Riseup Networks and one of the email account customers objected to the discovery request and filed a motion to quash. The district court granted the motion to quash and denied the church's motion to compel after finding that First Amendment balancing favored protection.

Following that decision, Riseup Networks and the account holder filed a motion for attorney fees and costs, alleging that they had suffered an undue burden in fighting the "baseless" subpoena. The district court agreed and last year ordered Mount Hope to pay a total of $28,181.10 in sanctions to Riseup and the individual account holder. Bash Back! and the church settled their dispute last year. The decision that the church appealed to the Ninth Circuit was whether the sanction that the lower court imposed in favor of Riseup Networks was appropriate.

In reversing, the appeals court determined that sanctioning a party for filing a subpoena duces tecum, without a finding of bad faith or financial hardship on the opposing party, would impede the legal process. "The scope of permissible sanctions under [the civil procedure rule] should not be so broad as to chill or deter the vigorous advocacy on which our civil justice system depends," Gould wrote.

Devin Theriot-Orr, the attorney for Riseup, said that he disagreed with the panel's interpretation of the rule. "The Ninth Circuit took a position that we frankly thought was unsupported by text of the rule," said Theriot-Orr, an attorney at Gibbs Houston Pauw in Seattle.

Representing Mount Hope Church on appeal was Brian Raum at the Alliance Defense Fund in Scottsdale, Ariz., now known as Alliance Defending Freedom. A spokesman for the legal group did not immediately respond to a request for comment.

Leigh Jones can be contacted at ljones@alm.com.

 

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