The first motion is Steve Ortega objecting to the subpoena for oral deposition scheduled for December. In it, Steve Ortega objects to the “request because it is overbroad, seeks confidential information/private property interests protected by the Texas and United States Constitutions, and because the phrase ‘or other forms of written communication regarding any matter of public business of the City of El Paso’ is vague, ambiguous and undefined”. His objection is to “E-mails (including emails written using personal email accounts), letters. memoranda, notes, or other forms of written communication regarding any matter of public business of the City of El Paso from You [Steve Ortega] to (or copied to, or blind copied to) any council representatives(s) or the Mayor or the City Manager from January 1, 2012 to October 5, 2012. This request includes all such written communication of whether other persons also were sent the communication.”
I realize that the business of lawyering in the United States is based on interpreting legalese for the benefit of one party over another. In this case Steve is arguing that the request is “overbroad [and] seeks confidential/private property interests”.
As a non-lawyer I find it difficult to understand how a request for any material that is a “matter of public business of the City of El Paso” would be “overbroad”, or “seeks confidential/private property interests”.
Ortega adds that he also objects to the request because “it constitutes an impermissible fishing expedition in violation of The Texas Rules of Civil Procedure”. Since I do not know what the rules of civil procedure are I will refrain from commenting on that issue.
Likewise Steve Ortega writes that he objects to the request for “E-mails, letters, memoranda, notes, or other forms of written communications regarding public business of the City of El Paso” from Steve Ortega to Paul L. Foster, Scott D. Weaver, Joshua W. Hunt, H.L. Hunt, MountainStar Sports Group, LLC, or any representative or attorney thereof”. This request also includes Franklin Mountain Sports Group, LLC and Hunt Holding Sports Group, LLC and their respective representatives or attorneys.
Again, I’m not sure how Steve Ortega argues that communications involving “public business” between the city and parties conducting business with the city would be “overbroad” or “seeks” confidential information. However that is what he is arguing.
In the second motion, Steve asks that the oral deposition scheduled for him be “quashed” and a “protective order” be issued to keep him from having to answer questions under oath.
In that filing, Steve Ortega argues that he “is no longer in office and is a bonafide private citizen”. He also argues that the documents and that Stephanie Townsend Allala seeks do “not constitute public information as defined by Texas Government Code section 552.002 when prepared”.
Notice the two words; “when prepared”?
Steve is arguing that although the state legislature clarified this year that emails and other communications belong to the community, the clarification was not in effect at the time the documents he has in his possession were created and according to his reasoning are not subject to the updated law.
Basically he is saying, yes the law changed but it doesn’t apply to me.
Most of you already know that personally I feel that the legislature’s clarification was just that a clarification and not an acknowledgement that previous emails and text messages related to city business did not belong in the public realm. However, I grudgingly accept that jurisprudence in the United States is interpreting the law rather than accepting it for what it is. So let’s accept for the moment that Steve can argue that the new law does not apply to him.
He goes on to ask the court for a “protective order because the purpose of Ms. Allala’s Subpoena is to harass a private citizen”.
And then he gets into the crux of his reasoning for keeping public information secret.
First, Steve Ortega argues that the Texas Public Information Act does not consider emails not in the possession of the government to be public information. He cites a City of Dallas v. Dallas Morning News, LP as the precedent to defining that an “individual is not a ‘government body’ for purposes of the Act”. As I know that the court will eventually address this I will withhold my comment for the moment. However it is important to note the basis of Steve’s argument and that he did not consider himself part of the government body when the records were compiled.
Steve goes on to argue that the although the law was updated in 2013 he is not subject to it because at the time the documents were created the law hadn’t been clarified and thus a new law cannot be applied retroactively. He cites the “Ex Post Facto” application of the law. To be clear that is his argument and my lack of comment on it at this moment should not be construed that I somehow believe he might be right. He is completely wrong from a layman’s point of view but for now I’ll leave it alone.
Steve Ortega goes on to cite the 4th Amendment to the US Constitution as another reason he should not be compelled to release the records. He argues that he maintains “an expectation of privacy”, under both the US and the Texas constitutions.
Steve then goes on to again ask for a “protective order” because he feels that he is being “harassed”.
As you know these latest legal maneuverings are arguments that a court, or courts will eventually settle. Some of you would argue that since I am not an attorney I really do not understand the nuances of the filings and that I may be interpreting them wrongly. That may be correct.
However, why do Ortega’s actions drive me crazy? Why is it hypocritical?
You will remember that in late 2004 and early 2005 there were rumblings within the community about a FBI investigation into public corruption. Initially the public corruption investigations seem to center around Anthony Cobos and Luther Jones and then it exploded across the County with people in the community playing “who’s next” each Friday looking to see who was indicted, mentioned or arrested the Thursday before. All politicians became very conscious about being stigmatized or possibly named in the next “information” that were periodically released by the investigators. Susie Byrd, Veronica Escobar, Steve Ortega and Beto O’Rourke, among others went around the community proclaiming how they were not part of the corruption.
On Saturday, June 23, 2007 at Tom Lea Park, a “Contract with El Paso for Ethical Government” was signed by some local politicos. Among what the signers, of the contract “vowed to establish” was a “blue-ribbon commission on ethical government with the authority to investigate and advocate best practices”, establish a “hotline” to take reports on “misconduct” and a “way to make all public meetings accessible to the public” through the Internet and public television. The signers also sought to create a website that makes “available financial disclosure reports filed by all El Paso elected officials” and to set up nonpartisan voter initiatives. The “commission” proposed to setup a mechanism with which to report “misconduct to proper law enforcement”.
Those who signed the “contract” were: Susie Byrd, Eliot Shapleigh, Presi Ortega, Beto O’Rourke, Ann Morgan Lilly, Lisa Colquitt-Muñoz and Steve Ortega.
On June 24, 2007, a guest editorial titled; “Officials vow more ethical government” was published in the local paper. The editorial references the “historic public corruption scandal” and the need “to rebuild the public trust”. The signers agreed to “ensure that candidates and future office holders agree” to the “Contract with El Paso”.
They go on to write that as they “work in public office” they expect the community to “demand the highest level of ethical, honest and principled conduct in local governance”. They added; “For government to function at its best, officials must actively promote and honor principals of good government, and ferociously combat conduct that impedes good government”.
Among 14 signers to the “pledge to El Pasoans” was none other than Steve Ortega.
Therefore the only question I have now and the only question anyone should be asking themselves is: where in Steve Ortega’s motion and actions does “good government” fit in?
Click here to read the actual court filings.
“Steve goes on to argue that the although the law was updated in 2013 he is not subject to it because at the time the documents were created the law hadn’t been clarified and thus a new law cannot be applied retroactively. He cites the “Ex Post Facto” application of the law.” Actually, ex post facto applies when a law is passed for a previous act, making it criminal. This was a clarification of an existent law so I’m pretty sure Stevo is grasping at straws.
Sorry meant to post here (new PC with OS that sucks) Mr. Paredes, the point everyone is missing here is, the deposition subpoena that was served on Mr. Ortega has no power. Before, I stated this, I did look to see if an ancillary proceeding was filed here in El Paso County, which would give a District Count in El Paso, subpoena power over Mr. Ortega. No such proceeding was filed. Probably because it cost money, it requires a Court Order from a District Court Judge in El Paso and the Intervenor, in this particular set of circumstances, does not have legal standing to file such a procedure. So, I do not understand why Mr. Ortega did not file a response to Intervenor’s (invalid subpoena) subject to this Court’s jurisdiction. Maybe he wanted to show us how smart he is and informed on State and Federal Constitutional law or maybe he wanted to get this on the record in this case which is heading for appeal if the judge does not follow the law. Maybe he figured, that this jurisdictional issue is so rudimentary he does not need to even mention it (although he does state in his motion that he is a private citizen). The jurisdictional issue should have been the first point he made, second to all of his analysis of constitutional law. No matter, he was served with a deposition subpoena of questionable value on Oct. 8, and he filed a motion to quash on Oct 11. Per Texas Rules of Civil Procedure, his deposition is automatically quashed so Steve is not coming out to play and this Court and Intervenor and her lawyer can’t do much about it, except keep spending money to issue worthless subpoenas for a deposition that Mr. Ortega, will quash. The Judge can order that intervenor can take all the depositions she wants, getting that accomplished however, is easier said than done. ks).
I can understand SO doing this, its normal….if criminal activity was being inferred then demanding court order for the emails is to be expected.
And I think Austin court has jurisdiction…TPIA says both El Paso county and Travis County have jurisdiction.
Re JW and SO
I was prepared to file below link last Friday but stopped by the county attorney office first and asked them [and city] to write the AG about issues raised in lieu of filing…the offer may be in this afternoons city and county agenda posting, or next weeks….if no response by then then i intend to file draft…thanks for any suggestions.
http://pastebin.com/JaRVee6R
The public information act, under the Government Code, grants a District Court in Travis
County jurisdiction over a “governmental body” in a case like this, i.e., the City did not like the AG’s opinion so they have to bring what’s called a declaratory action in Travis county. That is the only place the City could file. The District Court Judge in this case has a very limited role. Please show me the exact Section of the Gov Code or other authority that this gives a Travis Country District Court jurisdiction over a private citizen in El Paso. I have been looking for it.
I have not really researched issue albeit I found below which is getting close, I know on the City 1205 case, the code read Travis County or any other county where litigants resided and I thought TPIA reads same…The El Paso DA and CA have co-authority with AG to enforce TPIA….also at least it used to be one could file a TPIA suit in any county including Travis asking for public info EVEN before formally requesting it from gov entity.
I am aware of a 150 mile rule re subpenas….I think re STA case those involved have consented by now…
And I also wonder how any court in Texas has jurisdiction on any non-gov private suits…going by above post….in other words, its not a federal diversity issue…..going by above poster in all non gov civil suits you could only hope to sue when both plaintiff and defendant live in same county without facing same old alleged jurisdiction issue at least counties outside 150 miles anyways.
DAN MORALES v. JOHN H. ELLEN (07/22/92)
COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO
As a threshold matter, the Attorney General argues that the trial court lacked jurisdiction to hear this case, as Mr. Ellen did not exhaust administrative remedies and, as a private individual, lacks standing to raise the exceptions from disclosure relied upon by the trial court. We disagree.
John Ellen filed his petition for declaratory judgment in Ector County, following the City’s decision to abide by the Attorney General’s decision and release all the investigative records requested. Under the TORA, the legislature gave Ellen the option of participating in the proceedings before the attorney general, but did not require that he do so:
A person whose interests may be implicated or any other person may submit in writing to the attorney general the person’s reasons for withholding or releasing the information. Section 7(c). [Emphasis added].
This language, clearly permissive, does not obligate the individuals with a privacy interest to seek relief from the attorney general before claiming a privacy interest in the courts. See City of Amarillo v. Hancock, 150 Tex. 231, 239 S.W.2d 788, 790 (1951); McFadden v. Gideon, 639 S.W.2d 43, 44 (Tex.App.–El Paso 1982, writ ref’d n.r.e.). The trial court, thus, had jurisdiction to hear Mr. Ellen’s suit raising violation of constitutional rights. Although the Act requires that a governmental body seeking to avoid disclosure must file a suit for declaratory judgment or mandamus action in Travis County, there is no such requirement imposed upon a private citizen seeking review of an attorney general’s decision. We find that the Ector County District Court had jurisdiction to decide the declaratory judgment filed by Mr. Ellen raising constitutional privacy issues. We also find he had standing to raise privacy issues. We thus reach the merits of the trial court’s decision.
Wow – Mr. Starr, what this case is saying is that Susie Byrd and Steve Ortega (as private citizens in El Paso) could possibly file an action here in El Paso County raising violations of their constitutional rights in re: the City v AG (and Allala as Intervenor). This is an old case, so I wonder if it still applies. If it does, Mr. Ortega and Ms. Byrd should thank you if they didn’t know about it. Did you shepardize this case? I don’t see how it applies to the Allala case, however. The City filed in Travis as required under the Code against the AG and Allala intervened. In the Ellen case, (you don’t note who Ellen was–a past city official, maybe)Mr. Ellen did not agree with the city’s decision to go ahead and turn over information based on the AG’s decision and was worried about his privacy issues, so he brought suit in the County where he resided, which the appellate court determined he had every right to do. That is by the way a jurisdiction issue in favor of a private citizen. Note Ellen was not required to participate in the proceedings going on in Austin and the Court determined that as a private citizen, he had a right to file suit in his jurisdiction. So, it’s quite different from the Allala case in facts, but similar in terms of jurisdictional issues and where private citizens reside.
No I did not shep it ….but law for all, ive always researched pro and con….so as to know whatever side may do…and ive always thought i could find case law to support any view in any matter…if not at least mitigate….
I will shep it in day or two….see if any later cases cite it.