City files response to Save Austin Now lawsuit

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Litigation over Prop B ballot language centers on whether City Charter provision applies literally or the City Council has authority to word the proposition

Late last night the City of Austin’s outside attorney filed a response to the plaintiffs’ (called relators in legal terms) request for a writ of mandamus to force the City Council to amend ballot language for Proposition B.

Proposition B will be on the May 1 ballot as a result of Save Austin Now’s petition drive. If voters approved, the resulting ordinance would ban:

Camping in a public areas not designated as a camping area by the City’s Parks and Recreation Department;

Soliciting in designated areas including ATMs, banks, check cashing businesses; and

Sitting or lying down on public sidewalks in the Downtown Austin Community Court area, defined by this map, which includes downtown, East Austin, and west campus of the University of Texas (but not within the campus itself).

City responds

Renea Hicks

The 54-page petition filed by attorney Renea Hicks on behalf of the City argues, “The ballot language adopted by Austin’s city council for Proposition B is within its legal discretion and consistent with Austin’s city charter and applicable common law requirements. The Court should deny the emergency petition for writ of mandamus.”

In responding to case law in the Boise decision, the filing states, “Austin’s city council revisited its existing city code provisions that spoke most directly to criminalization of aspects of homelessness” and amended three sections of the City Code. (Martin v. City of Boise, 920 F.3d 584 (9th Circuit), certiorari denied, 140 S.Ct 674 (2019).

“Provisions establishing criminal offenses in three categories—generally speaking, public area camping, aggressive confrontations, and obstruction in a designated area—were included, but with care to avoid criminalizing mere status as opposed to conduct and with provisions about the conditions attaching to citation for such conduct,” the filing states.

The response argues that the Save Austin Now initiative ordinance “would criminalize conduct not directly criminalized in the council’s revisions and add further restrictions on activities by those experiencing homelessness.”

Thus, when adopting ballot language for the initiative ordinance, the council adopted one of the two options provided by the City Attorney—which three times mentions creation of a criminal offense.

“Shall an ordinance be adopted that would create a criminal offense and a penalty for anyone sitting or lying down on a public sidewalk or sleeping outdoors in and near the Downtown area and the area around the University of Texas campus; create a criminal offense and penalty for solicitation, defined as requesting money or another thing of value, at specific hours and locations or for solicitation in a public area that is deemed aggressive in manner; create a criminal offense and penalty for anyone camping in any public area not designated by the Parks and Recreation Department?”

The filing states, “Unaddressed anywhere in the initiated ordinance is that, in addition to eliminating provisions for warnings and opportunities to correct the offending conduct, Part 2 would also eliminate existing provisions that require material endangerment as an element of the offense and also eliminates heightened mens rea components,” meaning the person must have intent to justify criminal prosecution.

The city’s response argues the relators claim is flawed where it insists the City Council must adopt verbatim the caption used to circulate a petitioned ordinance.

“[T]he caption is not the ordinance, the filing states. “The caption is the proposition that briefly lays out the measure (or initiated ordinance) that itself is on the ballot for the voters to read when they vote. State law—specifically Texas Election Code Section 52.072(a)—places the duty for ‘wording of the proposition’ on the council, not the circulators of an initiative petition.”

Save Austin Now counters

Bill Aleshire
Bill Aleshire

Attorney Bill Aleshire, who represents the Relators along with Donna Garcia Davidson, filed a 13-page reply this morning.

Aleshire said, “This case has become simple:  The Austin City Charter requires the Council to use the caption from the petitioned camping ordinance as the ballot language.  We’ve asked the Third Court of Appeals to order the City Council to comply with the City Charter.”

(Disclosure: Aleshire represented The Austin Bulldog in two public information lawsuits in 2011. He currently serves as volunteer attorney for the Bulldog’s public information requests.)

The filing states the City’s argument provides no basis for ignoring Austin City Charter Article IV, Section 5, that requires the ballot used in voting on a petition-initiated ordinance to “state the caption of the ordinance,” and “adoption of the City’s argument would make Charter Article IV, Section 5 a nullity.”

The Relators’ filing asserts the City’s statement of facts are erroneous in claiming the initiated ordinance would eliminate provisions for warnings and opportunities to correct the offending conduct; that it would eliminate existing provisions that require material endangerment as part of the offense; and also eliminates “heightened mens rea components.”

The filing states the “warning first” and “material endangerment” provision are retained in the City Code.

The reply filing again asserts that the “caption of the ordinance” must be stated on the ballot because that provision in the Charter protects “the power of the people to initiate ordinances from being thwarted by a City Council intent on ignoring the Charter and making up its own ballot language to discourage passage of citizen-initiated ordinances.

“The City argues that if the Council has to use the caption of the petitioned ordinance as the ballot language, ‘then the city council would be the captive of petition circulators, no matter how misleading or pernicious the language of the caption of their petition.’

“The City  is making an argument to ignore its own City Charter because the Council doesn’t like what it says. But the City’s list of examples of the horrible things that could happen are purely hypothetical and make no actual complaint about the wording of the Petitioned Ordinance’s caption. Perhaps that is because the Petitioned Ordinance’s caption is the same wording as the caption of the City Council’s Ordinance No. 20190620-185 on the same topics.”

Looming deadline to finalize ballot language

The City claims the Relators’ arguments for mandatory relief are not valid, but assuming they were, the city council would have to change the ballot language for Proposition B. Further, Austin’s boundaries extend into Hays, Travis and Williamson counties. Each will have to administer the May 1 election.

Election officials have informed Austin about when they must have final ballot language. The earliest deadline is Travis County’s on March 3, according to the City’s response.

The item is on the City Council’s agenda tomorrow, March 25. A City of Austin spokesperson, in response to The Austin Bulldog’s query, said via email, “This agenda item concerns the ballot language for one item on the May 1, 2021, election. The petitioners filed suit in the court of appeals last week challenging the language to appear on the proposition.

“The City believes the ballot language correctly identifies the chief features of the proposed ordinance. However, because of a possible adverse ruling of the Court, and the approaching deadline for printing the ballots, we posted the item so Council could act quickly if it was necessary.”

Photo of Ken MartinTrust indicators: Ken Martin has been doing investigative reporting in the three-county Austin metro area since 1981. His aggressive reporting twice garnered first-place national awards for investigative reporting from the National Newspaper Association. Both of those projects resulted in successful felony criminal prosecutions, one for a Williamson County commissioner, the other for a con man based in Austin. You can read more about Ken on the About page.

Links to related documents:

City of Austin’s response in opposition to Original Emergency Petition for Writ of Mandamus, February 23, 2021 (54 pages) 20210223 City

Relators’ reply to City of Austin’s response to Relators’ Original Emergency Petition for Writ of Mandamus, February 24, 2021 (13 pages) 20210224 Reply

Links to related Bulldog coverage:

Save Austin Now petitioners file suit challenging ballot language, February 21, 2021

Council’s ballot language triggers lawsuit(s), August 11, 2018

Ballot language draws second lawsuit, August 17, 2018