Update: City submits bill for $8,334.25.
A federal judge today dismissed a demand to make now Mayor Wu submit to a deposition in a suit by the Satanic Temple of Salem over City Council invocations, ruling the group's lawyer engaged in "impermissible antics and abusive tactics" to try to mess with Wu, antics she says means the group will now have to reimburse Boston for the time city lawyers spent fighting the effort.
The Satanic Temple sued the City Council last year over the way it picks members of the local clergy to start its Wednesday meetings with an invocation. The group charged the fact that it could not get on the schedule proved the council is violating the First Amendment "establishment" ban on government religious preferences.
In October, the group's lawyer filed a demand that Wu, then a city councilor and a candidate for mayor, show up at the Temple offices on Election Day for a deposition in the case, to answer questions on how the council makes its invocation choices. The group did not demand that Councilor Annisa Essaibi George, also running for mayor, or any other councilors join Wu on a trip to Witch City.
Based on a request from the city, US District Court Judge Angel Kelley ruled Wu would not have to spend several hours in Salem on Election Day, but left it up to the group and the city to fight it out on whether she would have to appear at some future point.
But in a ruling today, Kelley put an end to that. She judicially slapped Temple attorney Matthew Kezhaya for his legal actions in the case, specifically the way she said he disregarded court rules that attempt to limit major inconveniences on potential witnesses, such as trying to make a mayoral candidate miss much of Election Day, and what she concluded was his attempt to go after Wu even after the city offered up numerous other people who could answer questions about how the council decides whom to invite for invocations.
Kelley noted Kezhaya didn't call any of those people - or any other councilors - for depositions in the case, and that Kezhaya acknowledged in one filing that, yes, he was trying to embarrass Wu in particular.
He concluded this was just good lawyering; Kelley, however, concluded it was just proof he needs to read up on how lawyers should comport themselves:
Independent of a potential deponent's profession or media exposure, it is in exceptionally bad faith to intentionally notice a deposition for a date and time when a party knows the deponent will be unavailable or greatly inconvenienced. In his explanatory letter to the Court, Plaintiff's counsel states that he, as an attorney, has "a sworn duty to do anything short of breaking the law to see to it that my client's goals are recognized." Yet this is not the case. Rules such as the Massachusetts Rules of Professional Conduct (and other states' equivalents), various ethics rules and guidelines, and the Rules of Civil Procedure govern attorney and litigant conduct in all sorts of ways that reach beyond conduct that is simply illegal - and they do so precisely to prevent the type of abuse of process Plaintiff's counsel has employed here.
Kelley continued that awarding the city legal fees was well warranted by Kezhaya's actions:
Despite Plaintiff's counsel's claim that the City "reneged" on a deal to produce Mayor Wu for a deposition on a different date, what the record actually appears to show is that the City sought to avoid filing their motion on an emergency basis, and reached out to Plaintiff's counsel to request Mayor Wu's deposition be noticed for a date further in the future so as to accomplish this. The City was entitled to take issue with both the timing of the noticed deposition and the fact Mayor Wu was noticed at all—and Plaintiff's attempts to conflate these issues and to portray the City as having “reneged” are disingenuous and distracting. The awarding of costs and fees to Defendant is well warranted here.
She also rejected Kezhaya's argument that lawyers who work for a municipality cannot be reimbursed for bad lawyering by the other side:
In addition, Plaintiff's assertion that the City cannot be entitled to attorneys' fees due to the fact Defendant's attorneys "are public employees who are paid a salary... [and] not charging an hourly rate to bring the motion" is nothing short of absurd. That a party's attorneys are paid from public coffers does not mean their time, efforts, and resources are therefore to be subject to unfettered abuse of process. The argument put forth by Plaintiff's counsel here would incentivize private attorneys and those charging the highest rates to engage in abusive discovery practices and file frivolous motions for the sole purpose of billing their clients and draining opponents' resources. Moreover, the Court is persuaded by Defendant's assertion that allowing depositions under circumstances where counsel has acknowledged impermissible motives would create perverse incentives for potential litigants, encouraging legal action merely to harass or gain access to government officials or candidates. [Def.'s Mem. Supp. Mot. at 6]. This, along with Plaintiff's counsel's abovementioned failure to acknowledge any of the myriad rules intended to guide and govern his conduct as an attorney, supports the awarding of costs and fees to Defendant on this motion. Pending submissions by Defendant and adjudication of the amount to be awarded, the parties are expected to continue diligently engaging in discovery, with the hope that Plaintiff will dispense with impermissible antics and abusive tactics.
Kelley wrote that she would let city attorneys submit a bill at the conclusion of the process of pre-trial discovery in the case. But she added that Hezkaya did not serve his clients well in a case that raises some novel constitutional questions in the federal court district that includes Massachusetts:
Distracting from the significance of that challenge with tactics Plaintiff's counsel facially admitted to employing in order to get the attention of the public and the City’s now highest-ranking government official does a disservice to the gravity of the constitutional claims at issue.