also referendum petition that some houston citizens presented to the city of houston although it was valid it was wrongfully denied a court battle ensued three different lawsuits and ultimately my clients prevailed in the state court system d o election occurred and the ordinance that people objected to was thrown out by a vote of sixty nine percent to thirty one percent the law the ordinance that was the subject of the referendum this has an acronym it's called hero which stands for houston equal rights ordinance my clients who are pastors related to four hundred churches had a problem with it because it could be interpreted to allow men biological person let's start with f in the williams pastor williams has standing for the following reasons number one registered voter number two he signed the referendum petition  on the document not just as of addition signer but it's called a circulator under texas law not only can you sign the petition if you live in the city of houston you're registered voter and want this on the ballot but you can also get other people to sign and if you do that you have to sign the document under oath saying that you personally were in the presence of those who signed it except or up and pastor williams did that he signed it not only as a petition er but as a circulator and staying with pastor williams for a quick moment your honor he made it through three state court battles without his standing ever being thrown out we fall to man damis petitions of the first was to force the mayor to comply with her ministerial obligations when the referendum petition has been validated by the city secretary and i'm going to that in a minute that went all the way to the supreme court  her a second time got another unanimous supreme court victory pastor williams was my client there and his well there are ahead syria doing that again on the standing so that it's good segue because given given that that williams won in state court where is a redress ability here in here in federal court here what the case law says is that although you don't have in the first instance constitutionally protected federal right to initiative a referendum if the state chooses to give it to the citizens then it has to be protected constitutionally and so because a city if used in its charter gives a referendum power to the citizens we have that power where the greed just ability comes in is that we should have never had to have filed any of the three lawsuits because there was a ministerial obligation to comply with the referendum except although it is true for purposes of argument that there has to be redress ability now in federal court passed away i'm sure perhaps the others have to be able to achieve redress in federal court now and i don't see how that can lie given all of the things that that have to have happened spinners have been withdrawn you want to state court all that's over right on the answer to your question is money for pastor williams in particular it's probably only nominal damages which were applied for in the case below because he didn't personally come out of pocket he spent a lot of time energy and talent but he didn't actually spend money so he would be entitled to the nominal damages on the others  they also were a petition organizer there a nonprofit corporation and they managed the entire petition so their petitioners just like the other four now the organization can't vote so the assertion they're making here is that their right to petition for perceived redress of grievances under the federal constitution was violated and they funded everything all of the petition drives all of the activities all of the absolutely everything and so that's really where the redress ability in the money part comes in a judge smith is the others are probably nominal damages but h a p c would be significant damages quickly i want to talk about what hundred eighty three you would say that you would if if we were to agree with you i'm not at all suggesting we will or we won't but if we were that you would go back to judge gilmore with a request for nominal damages and attorney space is that right or nominal damages and attorneys fees for the four individuals but compensatory actual damages and attorney's fees for ha p c which is a much larger number yes and here's why court has already settled that they said that when anna russell the city secretary's certified there were a number an a sufficient number of signatures on the petition then it's ministerial from that point forward you have to do three things the first thing you have to do is accept petition is valid and they didn't do that the second thing they didn't do is they didn't reconsider whether hero should be repealed at the political level that is the houston city council level that is required under the houston city charter when you have a valid referendum petition and they didn't do that third they refused to call the election what the charter requires ministerial late is that look  ordinance is immediately suspended if you want to repeal it in its entirety you can but if you don't then you got to put it on the ballot the mayor would allow it on the ballots that's the third violation but that was decided you pursued that successfully and in state court absolutely absolutely no how can you come into federal court to get damages for for that same violation well it's the answer that i gave previously  buckley cases cited in our brief stand for is that the right to petition government for redress is a core protected first amendment right and that right was violated here and we should have never had to move forced the mayor to do what her courts are confident to entertain little cause of action so that that could have been handled in state court here's why that's not correct these are man damis proceedings in state court these aren't money damages claims in state court what we were trying to do is ensure that this got on the ballot it's a right to vote on the referendum itself so we're not going to court saying give us money we're upset now we're going to court to say made the mayor put this on the ballot but that was under state law which you pursued are that's right but which you could also have said put it on the ballot because it's a violation of federal law federal constitution but you you didn't pursue that  respect as part of the mandamus that could that could have been brought respectively disagree and here's why the nut of the core of what we were trying to accomplish whether we were in federal court or in state court was to get this on the ballot that is a man down is proceeding it doesn't provide the collection attorneys fees and doesn't provide declaratory judgment of attorneys fees it's not allowed in the state law and trying to get  by lation that i didn't get to our number for these subpoenas so all of these three individuals got subpoenas for their sermons and for their text messages and for their voice mails and for their writings  anything that they'd shared with their parishioners were unconstitutional it was a they were getting spanked if you will because they dared to challenge the mare on this issue and then lastly the ballot language was flipped which i missed me quickly before all five of those reasons a give rise to nine hundred eighty three liability what reason if any did mayor parker give for it as far as this record is reflects for issuing  subpoena us i'm not asking you whether the reason was valid i'm asking what were these and was given right when when she first did it it's not really clear from the record if she knew that this was going to be done by  lawyers but after it was done and we objected to it she doubled down and ratified it in the pleading and in this record she said that when pastors in gauging politics their sermons are fair game that's a quote essentially also her city attorney david goldman had a press conference with the mayor standing next to him and said that when pastors are engaged in this type of activity then we have a right to look to see what it is they're saying to their parishioners that was their justification us absolutely violent is of our freedom of religion freedom of expression freedom of socialization right to vote and the right to petition government all of those rights were trampled by those unconstitutional subpoenas now when we get to the question of of the munity and she tries to say you know on immune from all of this immunity doesn't apply to a ministerial obligation it's not a discretionary act here she was forced because our city secretary anna russell said we have enough signatures on the petition to validate it the man was forced then to do with the three things required in the city charter number one you've got to say mediately that this ordinance and that now been challenge is not enforceable right now it's on ice didn't do that you got it in reconsider it at the political level didn't do that and if you don't reconsider it and repeal it in in its entirety at the political level you got to put it on the ballot she didn't do that all of those things are mandatory obligations and she was close it was state authority stood up and said i'm just not going to do that and therefore those are not actions for which she would be immune to more quick points as i'm about to run out of time i want to make sure that when we get into this question north carolina versus crest street u s supreme court case in eighty six specifically said that if you file in one thousand nine hundred three case and before you file it you had administrator proceedings where you spent lawyer fees you can get  it makes the general point that at the pleading stage you indulge in in preference in presumptions that are favorable to our pleading and they said that there that litigation costs alone than aren't connected to the defendants wrongful conduct are cost of just self inflicted injuries and you can't get those that's not this case we didn't just gratuitously file these lawsuits we had to file these lawsuits because of the defendants wrongful actions they wouldn't do their ministerial obligations so we had to file a second point why this case helps us doesn't hurt us even in the acorn case the panel here found that acorn did have standing with respect to there's one factual point i'd like to make clear just so that everything's in perspective there were two pieces of litigation that council referenced the two mandamus petitions there was also state court litigation regarding the in as as has been admitted in the pleadings the pastors were involved in organizing the petition drives and they were in instruction there were videos that came forward in during the stake president and where the pastor were giving instructions to their to the people that were going to go around and collect the petitions about what had to be done in the collection of the petitions so what instructions they were giving and the fact that it that it was the word sermons was in the discovery of us was it was a list of requests basically asking for it where they were giving instructions about how to fill out the petition so if it was in a sermon that was later withdrawn as you said the whole the whole subpoena to the pastors was later list was withdrawn but any case the subpoenas were issued because it was relevant what instructions were being given to the people because one of the the questions completely were completely withdrawn but that there was a relevance if you agree that it was improper to include the word some if the illegally i'm not sure that i don't believe that it may have necessarily sermon i don't know that that's on its own illegal so i think it was reprehensible is absolutely reprehensible to include even assuming that it was proper to try to get other information about instructions that were given for collection of the of the petitions to throw the word sermon in there is it was well that's outside usual yes i think it's counsel reference the mayor wasn't aware of that at the time that it happened and we were but the mayor did withdraw those but there was a relevance and that was the reason for the subpoenas to begin with was because of the underlying jury trial which the jury did find that a number of the signatures and pages were not valid so that's the second that was the other piece of litigation that was happening at the same time as i understand it and russell the city secretary stopped counting because the number of signatures was so much in excess of the of the amount needed kryten if i'm wrong i'm just trying to understand the record right yes i think i think that fact is correct  problem that this that the city that came up during the litigation regarding whether the the pages were valid had to do with the way in part the way the signatures were validated by the  the petition collectors at the end whether they were properly bear by the person who acting this is the petition and again i believe all of this is probably outside of our record but there were in the trial there were  allegations that some of the petitions are there i think that the jury found as i said that some of the petitions had not accidental defects signatures that some may be rigidly headed up i wasn't involved in the trial but that was when in fact the jury verified and these other issues that were developed at the trial but i think judgments you even hit on the and one of the main points and i'd like to touch on today i mean there's there's three there's the sanding back and recover fees in a prior proceeding such as an administrative proceeding or in this case isn't this say court litigation that's not recoverable in one thousand nine hundred three case and i think that's exactly what the  individuals neither mr williams a pastor williams or any of the other pastors incurred attorney's fees so they certainly don't have standing even if even if attorney's fees were recoverable as a as a part of this cause of action that they're not so we don't have there's no standing here because at least with respect to the attorney's fees for ha p c t or any of the other individuals so there's no injury in fact that will be redress by the favorable decision if this court ruled that way now with respect to the idea of the that the constitutional violations there is there are no there under section under nine hundred eighty three there has to be an allegation factual allegations to support that there was a deprivation of a constitutional right and also i disagree with counsel on this point a referendum is not it has been found not to be a constitutional right it is a all his basic you're you're not disagreeing we did say they said that there's no us but our state texas has no state wide initiative or referendum but that's it's not a federally good excuse and yet then i misunderstood not a federally guaranteed right now it is true that when there is a referee the courts upheld that when the right is given and then it there must be the state cannot impose restrictions on them that are that are not reasonable but here but it's not a fundamental right and so what's necessary with respect to the restrictions on any kind of a petition is that they be up and have a rational relationship reasonably related to the purpose of the ministering affair initiative procedure and here to the extent that it's that it's relevant but again it goes back to why this issue came up about whether the procedures were enforce a referendum because of these kind of in the lack of verification on signatures one was the kendall case from the fourth circuit kendall b ball says that and the court found there was no violation of freedom sociate petition or to vote in a in that case because the restrictions the referendum petition were content neutral nondiscriminatory and rational there was a rational relationship between the restrictions the requirements for verification so forth and the us in the states need to be sure that the referendum petitions  initially happened here due to statutory deficiencies and the court found that there was not any constitutional violation there because the that the  the irregularities and the and the regulation was was nondiscriminatory content neutral and reasonable related to the purpose of administering the  the petition i'd also like to put up with respect to the other constitutional rights freedom of religion i think we've we've talked about that to the extent that's pled not totally clear but again that there was no there there is no absolute right for a religion not to respond to a church or not to respond to a discovery request so that's i think the united states v holmes is a case out of the out of this court there was no burden on religion if they even though those that obviously they were withdrawn as we talked about so there was a ultimately no harm but the the requests made were reasonably related to them and doing litigation they were relevant and in no way burdened or interfered with the the religious  activities of the of the individuals no one speech was interfere with obviously that all of these issues were played out in the state court litigation there was no denial of the right to vote the only citizen who had a you don't you don't think that there was an overall chilling effect where the city attorney of the fourth largest city in the country issues these blanket an overly broad  but those subpoenas were for activity in the past there was the well but there's the message there that you better not engage in this kind of thing in the future that's what i've that's what child actors all about well that chilling sort of traffic violation of six officers coming after him with a with guns on it that but there's a chilling effect here there's certainly no factual allegation to support that any of any rights for any individual was chilled from pursuing future activities which i mean obviously the facts are to the contrary because they did continue with the litigation and moved to quash the improper subpoenas in the in the city that's they withdrew them so there's really no facts alleged at all that would support that there was any childe of a constitutional right and with respect to the subpoenas finally a deal or make one other point with the subpoenas and that and that has to do with the  litigation privilege which in texas is an absolute immunity for act for actions taken during the course of litigation and this court recognize allied signal is a complete immunity from suit it's not a defense to lie belittling so that there's at there's a privilege communication take in the course of litigation or an action in the course of after the city secretary looked at them that's it was part of the legislative process that was part of an ordinance that was being challenged and the whole process of the process of taking that ordinance through the referendum process that's legislative and that also falls within an absolute immunity which the legislative immunity so even even with all of the other issues those two and the unities protect both of the actions that are alleged here and again you know there's a lot of conclusory statements and a understand that there's you know issues that people feel strongly about but the two the two acts that are alleged here that where the violation of the rights are with respect to the analysis of the referendums and then those pinas and both of those are protected by immunities to touch a couple of points first going back to your question about redress ability of the first things you ask me it's important to remember that those sides pastor williams who was a litigant in the state court cases the others were not they didn't file any lawsuits they weren't involved the three pastors that received these subpoenas were foisted into the state court proceeding but it wasn't anything they initiated they were trying to defend themselves so when you look at what the trial judge did below in finding number four she knocked me out on claim  preclusion she said that the one nine hundred eighty three action to recover attorney's fees is barred by claim preclusion will how can you be precluded from asserting a climb in federal court when you were not a party in the state court proceedings the only argument that trial court finding would have any merit or relevance to you is to pastor williams because pastor williams was involved and so i want to make it clear all redress ability four of the five  pellants here were involved below and when you look at pastor williams he did follow man down his actions you can't collect fees already said that he did alongside that have to file a state court case in trial court and that is linked to the defendant's wrongful conduct that trial court lawsuit should never have been required to have been filed because had the mayor followed the constitution at the city level the city charter and obeyed the ministerial obligations that she in the city council had then this would have been put on the ballot and we would have never had to follow that trial court case but your with your response to counsel options argument that on the attorney fees issues s the precursor for this litigation he says that's what the holdings of those that is so what are you saying let me give you three cases and i'll quickly answer the first cases north carolina d o t versus crest and then under one thousand nine hundred eighty you've got a link to the past cost with the defendant's behavior if you do that you can collect and so in north carolina they said all the time and expense and lawyer fees and court costs on administrative proceed proceedings both for the ninety three case was filed are recoverable as long as you make that connection here what i just said is because they wouldn't do their ministerial duty we had to follow got to show that all of these actions you were taking in the past were trying to vindicate the federal rights that they weren't respecting that's exactly what happened here they wouldn't put it on the ballot so all of the litigation whether it's man dam it says or whether it's the truck court case on the there you feel you're fully energized on standing is each one of the glad to stand before absolutely and here's why the first amendment core protected activity is the petition process you don't have to be living in the city of houston to engage in the petition process you can sign as a circulator and not be a registered voter not live there you can ask people hey do you want to have a vote in houston on this or not even though you don't live there my folks lived in harris county but they didn't live in the city so they couldn't sign the petition but they organized and they could jolt and they tried to advocate for the petition that's speech bloom versus we mere class b smith texas cases say that that's protected standing but so one question on what you just said understand your your red light is on so the core protected activity has the right to petition you you stated that are taking that as a  given there must be limits on the extent to which one could go to federal court to argue about the failure to follow all of them a new shot of a state or local petition ordinance or or or statute and how how would we how would we express that that test what's what's the threshold here's how i'd answer the question your honor we would have been go through the world series the umpire at the plain the only person in that building that can call a ball or a strike similarly here under the city charter the only person who can say if this petition was valid or not was the city secretary and russell and she said it was valid a manager or a player or a fan may not agree but they don't have the legal right to decide not we're not going to do it and so in this circumstance when you have a ministerial constitutional obligation to let the people vote and  refused to do it that is something that one thousand nine hundred three was designed to prevent and remedy ok on that that may or may not be but i don't think you answered mark my question what it what is the test for the extent to which you know in a hypothetical case that the federal courts can intrude and and and and give rate redress on the failure to follow every single detail of an ordinance or a statute that that grants the right to petition a referendum well i think the new one case supreme court case sets out the three elements you have to demonstrate to have standing  hundred three you've got to prove that there is somebody acting under color of state authority this mare as mare stood up and said we're not going to respect the city secretary's decision so she was under color of state law when she said that refused to do what she was required to do then you have to demonstrate under lou hahn that there is some connection here to harm me really harmed as a just hypothetical this in a hypothetical case here we had to file the lawsuits to achieve legal victory to force the mayor to do what she should have done in the first place so i would answer your question strictly by limiting it to these facts and that is where you have a non discretionary state charter constitutional obligation to call a vote and you just say no then you cannot avoid being reviewed by a federal court under one thousand nine hundred three because our first amendment rights were implicated and those rights were not respected and that's what one nine hundred three is for