Ballot Language Draws Second Lawsuit

HomeCity of AustinBallot Language Draws Second Lawsuit

Story update: As reported August 17, 2018, a request for a writ of manadamus was filed with the Texas Supreme Court August 17, 2018, to challenge the council-approved ballot language for the CodeNEXT petition ordinance. This update provides a link to the City of Austin’s response filed August 23, 2018. Attorney Bill Aleshire, who filed the request for a writ of mandamus, said in email August 23, 2018, “I have informed the Supreme Court clerk that I will not be filing a reply. I would not be surprised to see a decision from the court tomorrow.”

Also: City of Austin responds to efficiency audit lawsuit with a 176-page brief filed late Thursday

Updated 10:20pm Friday August 17, 2018 to clarify that the new petition has been filed and is linked in the story.
Updated Thursday August 23, 2018 at 6:55pm to include the story update and link to the City’s response

Bill Aleshire at a 2012 press conference to support the 10-1 plan for geographic representation on the City Council.
Bill Aleshire at a 2012 press conference to support the 10-1 plan for geographic representation on the City Council.

First came a legal challenge to how the City Council worded the ballot language for the efficiency audit petition ordinance.

Now comes a second challenge on how council worded the ballot language for the CodeNEXT petition ordinance.

As foreshadowed in our August 11, 2018, coverage of the lawsuit challenging the ballot language approved by the Austin City Council for the efficiency audit petition ordinance, a similar petition will be filed today to challenge the council-approved ballot language for the CodeNEXT petition ordinance.

Austin attorney Bill Aleshire of Aleshire Law PC told provided a copy of the new Original Emergency Petition for Writ of Mandamus to The Austin Bulldog late this afternoon. He filed it directly with the Texas Supreme Court, just as he did August 13, 2018, for the efficiency audit petition ordinance. Jumping over the lower courts is required because the ballot language must be set by August 20 and any final changes made by September 4. (A copy of the new petition is linked at the bottom of this story.)

“The Austin City Attorney and City Council continue to ignore the fact that the City Charter reserves to the people the right to petition,” Aleshire said in a phone interview. “The Charter requires that the ballot must include the caption of the proposed ordinance.

“They don’t have the right or the authority to write their own ballot language,” Aleshire said. “They took the words ‘CodeNEXT’ out of the ballot language, a phrase that Mayor Steve Adler thought dangerous to himself and tried to erase.

“He made a huge political mistake and now is trying to erase it from public view. He doesn’t want it on the November ballot—that’s why they changed the ballot language.”

Steve Adler
Steve Adler

The Austin Bulldog sent an email to Mayor Steve Adler last night to request his response to Aleshire’s remarks.

At mid-morning today his office said the mayor was at events most of this morning.

No further response was received in time for this report but will be inserted as an update if the mayor provides a statement.

CodeNEXT Political dynamite in mayoral election

Laura Morrison
Laura Morrison

Mayor Adler, who took office in January 2015, faces a potentially strong challenge to his reelection bid from former two-term Council Member Laura Morrison.

She was first elected in a June 14, 2008, runoff, when she defeated Cid Galindo 65-35 percent for the Place 4 seat on the at-large council that was vacated by Council Member Betty Dunkerley. In 2011 Morrison easily won another three-year term with 73 percent of the votes.

Morrison was term-limited and ineligible to run for City Council in 2014. Despite urging from some groups, such as the Save Barton Springs Association, where she received a standing ovation at its annual party, Morrison chose not to run for mayor in 2014, as did two other term-limited council members: Mike Martinez and Sheryl Cole. Martinez, who had served on the council since 2006 and made it into the mayoral runoff against Adler, was crushed 67-33 percent in December 2014—the largest landslide margin ever in a mayoral runoff.

Adler has a distinct financial advantage in seeking a second term. His July 16, 2018, campaign finance report indicates he had more than $236,000 in cash on hand.

Morrison had just $76,000 in cash on hand according to her July 16, 2018, campaign finance report.

In his 2014 mayoral bid Adler personally loaned his campaign more than $387,000 and he currently has a loan balance of more than $449,000. But his personal wealth earned as an attorney, combined with his past political history, shows he will spend whatever he raises and as much of his own money as needed to win at any cost.

Although Morrison never had to dip into her personal finances to run competitively in a city council race, more than likely she has the resources to do so. The Austin Bulldog’s analysis of the city’s elected officials in 2013 (Austin Governed By the Well-to-Do) showed she and her husband Philip Morrison reported owning 27 stocks, six bonds, and shares in 31 mutual funds. They were living in a West Austin home valued at $1.9 million, drew dividends of more than $35,000 and a like amount of rental income. So far, however, her report indicates she’s only invested $28,000 in her mayoral campaign through June 30, 2018.

Adler was the chief proponent of CodeNEXT, a sweeping revision of the land development code that would permit vastly more density in residential neighborhoods. Politically that was an Achilles’ heel that made him a big target for Morrison’s criticism.

In addition, the CodeNEXT petition gathered more than 33,000 signatures. Even after the petition was validated the City Council voted not to put it on the ballot. That forced a court battle to overturn the council’s action and get the CodeNEXT petition ordinance on the November ballot. The petitioners won that fight.

Still, the council-approved wording of ballot language for the efficiency audit petition ordinance drew a legal challenge that’s pending before the Texas Supreme Court.

Flush CodeNEXT, hope for calm

Adler defused the political issue to some degree by suddenly abandoning CodeNEXT. With his surrender, the council followed suit and voted to quit it, despite having spent more than $8 million and years of intense work by city staff, city commissions, and citizenry.

Fred Lewis
Fred Lewis

Removing “CodeNEXT” from the ballot language ripped away the term so loathsome to Community Not Commodity, the organization leading the resistance. Fred Lewis, leader of Community Not Commodity, in fact drafted the CodeNEXT petition. And, along with co-counsel Bill Bunch of the Save Our Springs Alliance, won a court decision to put the proposition on the ballot.

The council watered down the ballot language so as to seem innocuous, wording it:

Proposition J:  Shall a City ordinance be adopted to require both a waiting period and subsequent voter approval period, a total of up to three years, before future comprehensive revisions of the City’s land development code become effective?

Lewis said the council’s chosen wording isn’t just innocuous. “It’s incomprehensible. To get away from the CodeNEXT reference, they made it gobbledygook. I think it’s intended to confuse people. They identified with a certain term—CodeNEXT—for six years and then put on the ballot this bureaucratic nonsense.”

This litigation being filed today will seek to word the ballot to read:

Proposition J: Shall a city ordinance be adopted to require a waiting period and voter approval before CodeNEXT or subsequent comprehensive land development revisions become effective?

Litigaiton aside, Morrison isn’t letting go of the issue she hopes will hang like an anchor around Adler’s neck and sink his reelection.

At a Community Not Commodity event last October, Morrison said, “CodeNEXT will be fueling the demolition of structures and the devastation of our communities.”

She said when the council approved the Imagine Austin plan in 2012 it knew the land development code would be rewritten, but the process had gotten off track from where it was meant to go. The intent was for families to be able to stay in their homes and for neighborhood plans to be respected. “None of that happened,” said Morrison, who was president of the Austin Neighborhoods Council before being elected to the council.

Even when Adler pulled the plug on CodeNEXT, Morrison continued trying to pin the tail on his donkey. In an August 3, 2018, press release she called his “signature achievement” a failure and noted that he tried to deflect criticism by blaming the Austin community for its failure by spreading “hyperbole, fear-mongering, and divisive rhetoric.”

Political veteran’s assessment

Peck Young
Peck Young

Peck Young’s days as a political consultant stretch back nearly a half-century. He quit guiding candidate campaigns years ago, after working on campaigns for winning mayoral candidates from Jeff Friedman to Bruce Todd, and many other candidates running various offices. Still, he was instrumental in guiding to victory the 10-1 petition campaign that voters approved in November 2012 to change the City Charter to require geographic representation in council elections.

Of CodeNEXT, Young said, “I think it was the deal in this election until the mayor had the good sense to get rid of it.”

He said he thought polling done by the mayor showed the issue was so unpopular it not only made Morrison’s campaign viable but endangered reelection of other council members who supported CodeNEXT. Which accounted for the council supporters change of heart.

“All of a sudden the people in favor of it were for killing it.” He figures the mayor’s advisors said, “You have to kill that snake.”

“Even the bad blood from that dead snake is substantial,” Young said. And, with the CodeNEXT petition ordinance on the ballot it will keep the divisive issue alive.

“Land speculators are hysterical they will lose council members who can pass CodeNEXT’s little brother,” he said. “This is about money. That snake was a boa constrictor that would strangle all black people out of town, and people who had houses where land speculators want to build condos.”

Plaintiff’s point of view

Allan McMurtry
Allan McMurtry

Aleshire’s client in the CodeNEXT lawsuit is Allan McMurtry (in legal lingo the relator). McMurtry sought out Aleshire after seeing news reports about his challenge on behalf of the efficiency audit petition. McMurtry owns the AMC Company located off Burnet Road in north Austin. The company, which opened for business in 1984, provides a wide range of tools and services for jewelers.

“The City Charter says the ballot language should be the same as the petition ordinance—and the petition identified CodeNEXT,” McMurtry told The Austin Bulldog in a phone interview this morning. “I felt that it was important for voters to be able to link this petition ballot to CodeNEXT.

“The city needs to start following its own laws,” he said. “This (litigation) is what we have to do to get the city to act legally and ethically.”

McMurtry, a cousin of novelist Larry McMurtry, author of Lonesome Dove, The Last Picture Show, and Terms of Endearment—all made into major motion pictures—said, “I wish Austin would wake up and come into the 21st Century with more than high-tech. The city has obligations to the rule of law and this bothers me immensely. It should bother us all.

“I hope we’re successful. It’s important win.”

City responds to litigation on efficiency audit

The City filed its response at 10:51pm last night to refute the Writ of Mandamus that seeks to force a change in the ballot language for the efficiency audit petition ordinance.

The response just obtained by The Austin Bulldog argues, “The ballot language for Proposition K does not violate any directive in the Austin city charter” because the charter requires the ballot to cite the caption of the ordinance.

The response states, “The efficiency study ordinance proffered by supporters of the initiative lacked a caption. A review of the ordinance confirms this assertion, and it is undisputed by Mr. (Ed) English (on whose behalf the petition was filed). He quotes the charter’s Section 5 instruction, then immediately admits that ‘the Efficiency Audit ordinance does not have a designated ‘caption.’”

“Without a captioned ordinance, the council was faced with a situation in which the only charter provision directing this choice of language was inapplicable. This took the council’s actions outside the purview of the city charter and triggered the provision in Texas election law which provides that, ‘[e]xcept as otherwise provided by law, the authority ordering the election shall prescribe the wording of a proposition that is to appear on the ballot,” citing Texas Election Code Section 52.072(a).

In response to that, Aleshire told The Austin Bulldog, “Both of the proposed ordinances have first sentences that explain the purpose of the ordinances.”

“The caption is part of the certification requirement so if the City Clerk certified the efficiency audit petition, it must have a caption.”

Bottom line is that with regard to the efficiency audit petition ordinance, it will be up to the Texas Supreme Court to weigh merits of the competing briefs filed on behalf of relator Ed English and respondent City of Austin.

With respect to the Original Emergency Petition for Writ of Mandamus for the CodeNEXT petition being filed today: attorney Lewis noted that the city, in citing the specific charter requirement to use a petition ordinance’s caption to describe its ballot language, undermined it’s ability to refute a challenge to the council-approved ballot language for the CodeNEXT petition ordinance.

Because it has a caption.

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Austin Efficiency Audit Petition including Proposed Efficiency Study Ordinance  (2 pages)

Citizens for an Accountable Austin, Specific Purpose Committee Campaign Finance Report July 16, 2018 (16 pages)

City Attorney Anne Morgan’s August 8, 2018, memo to Mayor and Council, Ballot Language for Citizen-Initiated Ordinances on November 6, 2018 ballot (2 pages)

City Attorney letter hiring Bickerstaff Heath for legal advice on CodeNEXT petition validity (12 pages)

City Defendants’ Trial Brief on the Merits, June 22, 2018  (89 pages)

City of Austin’s Response in Opposition to Original Emergency Petition for Writ of Mandamus, August 16, 2018 (176 pages) concerning the efficiency audit petition ordinance

City of Austin’s Response in Opposition to Original Emergency Petition for Writ of Mandamus, August 23, 2018 (156 pages) concerning the CodeNEXT petition ordinance

Legal advice on CodeNEXT petition provided by Bickerstaff Heath, February 28, 2018

Original Emergency Petition for Writ of Mandamus, August 17, 2018 (113 pages)

Original Emergency Petition for Writ of Mandamus, August 13, 2018  (58 pages)

Relators’ Original Verified Petition for Writ of Mandamus, June 1, 2018 (6 pages)

Relators’ Trial Brief in Support of Their Petition for Writ of Mandamus, June 20, 2018  (34 pages)

Relators’ Rebuttal Brief in Support of Their Petition for Writ of Mandamus, June 29, 2018  (19 pages)

Texas Supreme Court Request for City of Austin to Respond, August 13, 2018 (1 page)

The Austin Civic Fund formed December 4, 2017, and terminated March 22, 2018  (8 pages)

The Austin Civic Fund formed April 12, 2018, and renamed Austin Civic Fund Action May 22, 2018  (5 pages)

The Austin Civic Fund formed May 25, 2018 (6 pages)

Related Bulldog coverage:

Council’s Ballot Language Triggers Lawsuit(s): Petition to be filed directly with the Texas Supreme Court to challenge City Council’s wording for a ballot proposition, August 11, 2018

Good Idea or Trojan Horse? More than $137,000 in ‘dark money’ spent to put Austin efficiency audit on the ballot, July 27, 2018

Efficiency Audit Headed to Ballot: Citizens for an Accountable Austin PAC claims more than 21,000 signatures were validated, July 12, 2018

Attorneys Argue CodeNEXT Petition: CodeNEXT petition backers seek court order to force City of Austin to put petition on the November 6 ballot, July 2, 2018

Petitioning ‘Problem’ a City Invention: Austin Library Department has no evidence of problems with signature gathering until CodeNEXT crackdown, June 25, 2018

Petition Seeks Austin Efficiency Audit: People are already hustling signatures to get this measure on the November 6 ballot, May 25, 2018

Library Commission May Protect Petition Rights: But competing draft rules pushed by city staff would restrict signature gathering to designated spaces, May 21, 2018

Library Director Misled Library Commission: ‘Austin Monitor’ reported Roosevelt Weeks said petitioning banned by ‘majority of urban libraries,’ April 12, 2018

IndyAustin Nears Petition Goal: Plans to continue petitioning at city library facilities despite having been barred before, March 6, 2018

Library Commission Debates Petitioning Rights: Petitioners appeal for access to library properties, library director and attorney adamantly opposed, March 2, 2018

IndyAustin Petitioners Barred from Libraries: One IndyAustin petitioner issued a trespass notice to prohibit setting foot on Spicewood Library property, February 19, 2018

IndyAustin Pushing Three Petitions: Grassroots group organizing to get measures on the May 5, 2018 ballot, September 12, 2017

Trust indicators:

Ken Martin has been covering local government and politics in the Austin area since 1981. See more on Ken on the About page. Email [email protected].

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