Council’s Ballot Language Triggers Lawsuit(s)

HomeCity of AustinCouncil’s Ballot Language Triggers Lawsuit(s)

Story update 1: As reported August 11, 2018, attorney Bill Aleshire followed through and on Monday, August 13, 2018, at 1:03pm did file an Original Emergency Petition for Writ of Mandamus with the Texas Supreme Court. A copy of that 58-page document is now linked at the bottom of this story.

Story update 2: The Supreme Court of Texas on August 13, 2018, requested the City of Austin to e-file a response to the Writ of Mandamus by no later than midnight Thursday August 16, 2018. A copy of that one-page request is linked at the bottom of this story.

Petition to be filed directly with the Texas Supreme Court to challenge City Council’s wording for a ballot proposition

Updated Sunday August  12, 2018 2:59pm (to correct information attributed to Council Member Leslie Pool)
Updated Monday August 13, 2018 at 2:40pm to include a link to the Writ of Mandamus filed today
Updated Monday, August 13, 2018 at 3:50pm to include a link to the Texas Supreme Court’s request

A lawsuit will be filed with the Texas Supreme Court on Monday to challenge the ballot language adopted by the Austin City Council to describe an efficiency audit petition ordinance that was brought by an initiative petition.

In addition, other petitioners who had to get a district judge’s court order to force the City to put their CodeNEXT petition ordinance on the ballot say that they also may file a lawsuit over that petition’s ballot language approved by the Austin City Council.

Bill Aleshire
Bill Aleshire

Austin attorney Bill Aleshire of Aleshire Law PC is representing Ed English in the efficiency audit litigation. English is a board member of Accountable Austin Action. That organization is a 501(c)(4) nonprofit that raised $137,000 from undisclosed donors to gather the petition signatures.

Aleshire sent a legal shot across the bow Thursday before noon in a letter to warn City Attorney Anne Morgan he would sue if the council adopted any language other than a neutral presentation of the petitioned ordinance, as follows:

Ed English
Ed English

“Shall a city ordinance be adopted requiring a comprehensive, independent third-party efficiency audit of all city operations and budget?”

Aleshire’s letter was a direct response to Morgan’s August 8 memo (copy linked below) to the City Council that—in response to a request from council members—proposed ballot-language options for both petition ordinances.

Ultimately the council adopted language for the efficiency audit that was not either one of the two options provided in Morgan’s recommendations, voting 6-5 to approve:

Proposition K: Without using the existing internal City Auditor or existing independent external auditor, shall the City Code be amended to require an efficiency study of the City’s operational and fiscal performance performed by a third-party audit consultant, at an estimated cost of $1 million – $5 million?”

If effect, the council waved a red cape in front of a high-profile litigator who usually provides gentle nudging for the City to take action in the only way he believes to be legal. Or else he’ll sue.

Now it’s or else.

(Disclosure: Aleshire has represented The Austin Bulldog in two public information lawsuits against the City of Austin and won both cases.)

Harsh words for city’s action

“This Mayor and Council majority has now established a rock-solid record of disrespect for citizen’s right to petition,” Aleshire said in an email to The Austin Bulldog.

“The Charter does not permit the Council to provide improper commentary in the ballot proposition to make voters think the efficiency audit is not needed (because the City has an internal auditor and external auditor) or that the audit will have a net cost—it’s just as possible the efficiency audit could more than pay for itself, resulting in no net cost to the city taxpayers and result in more or improved services.

“There is no reason there would be any duplication of effort between the independent Efficiency Auditor and the City Auditor,” Aleshire wrote. “The City Auditor has never shown an audit plan or even done such a comprehensive audit as it called for in the proposition. The City’s independent external auditor merely prepares a certification of the City’s Annual Financial Statement and does not conduct efficiency studies or evaluate the city budget.”

Aleshire said he will file his pleadings with the Texas Supreme Court Monday, August 13, 2018. Bypassing district and appeals court is permissible in this instance, he said, because August 20, 2018, is the City’s deadline to provide language changes for the ballot to Travis County Clerk Dana DeBeauvoir.

The legal issue is whether the particular ballot language the City Council approved fulfilled its ministerial duty to submit an ordinance to a popular vote in accordance with the City Charter.

DeBeauvoir provided a schedule that allows for final ballot language changes to be made no later than September 4.

Aleshire said the Supreme Court can make its decision in this matter based on legal briefs and need not hear oral arguments.

CodeNEXT petitioners may also sue

While the efficiency audit petition sailed through the City’s review process, was found sufficient, and the City Council voted without hesitation to put it on the November 6 ballot, the CodeNEXT petition took a more tortured route.

First the City, in an unprecedented crackdown, harassed and intimidated petitioners who were gathering signatures for the CodeNEXT proposition at Austin public libraries. Two petitioners were issued criminal trespass notices. The City finally retreated from that tactic, rescinded the trespass notices, and assigned to the Library Commission the job of rewriting library rules concerning petitioning, a process that is still ongoing. The Austin Bulldog’s investigation, published June 25, 2018, showed the City could not document a single problem with petitioners gathering signatures at public libraries going all the way back to 2006.

Then, after the CodeNEXT petition was filed with the City Clerk and found sufficient, the City Council voted 6-4 not to put it on the ballot.

A second ballot-language lawsuit possible

Fred Lewis
Fred Lewis
Bill Bunch
Bill Bunch

Refusal to put the CodeNEXT petition ordinance on the ballot brought a lawsuit from Attorney Fred Lewis, who drafted the CodeNEXT petition. Lewis and co-counsel Bill Bunch of the Save Our Springs Alliance successfully argued for a court order to put the measure on the ballot, after the City Council voted not to do so.

Even after all those maneuvers to frustrate and delay getting the CodeNEXT petition on the ballot, the City Council took a parting shot at the initiative by choosing to adopt ballot language that the petitioners view as pejorative.

Lewis told The Austin Bulldog he is considering a lawsuit over the council-adopted language, which is as follows:

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?

The language Lewis preferred, and was listed as Option 1 in City Attorney Anne Morgan’s memo, is:

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?

Leslie Pool
Leslie Pool

Council Member Leslie Pool in a phone interview today said that the request for the city attorney to provide ballot-language options was made in an executive session. Pool provided an email she sent to the city attorney March  July 23, which contains the ballot language for CodeNEXT that she and Council Member Alison Alter recommended. That language is the same as Morgan’s Option 1, cited above.

“The language comes directly from the petition’s headline. CM Alter and I trust that the city (will) choose straightforward language for the ballot,” Pool wrote in the email to Morgan.

Nevertheless, the City Council’s adopted ballot language doesn’t even mention CodeNEXT, which is what triggered the petition drive in the first place.

“The City’s language on our voter approval petition initiative is misleading, unfair and illegal,” Lewis said in an email. “The City Charter, Article IV, Section 5, requires the City to use the initiated ordinance’s caption, which the City has failed to do.”

That provision in the City Charter states:

“The ballot used in voting upon an initiated or referred ordinance shall state the caption of the ordinance and below the caption shall set forth on separate lines the words, ‘For the Ordinance’ and ‘Against the Ordinance.’ ” (Emphasis added.)

Bunch said in an email: “They are violating the charter and Texas case law providing that the ‘caption’ of the ordinance should be placed on the ballot, not a council argument against the petitioned ordinance.”

“So much for the Mayor ‘restoring trust to the community,’” Bunch said. “More like electioneering on the ballot.”

Lewis wrote, “The proper language was proposed by Council Member Leslie Pool and supported by Mayor Pro Tem Kathie Tovo and Council Members Allison Alter, Ellen Troxclair, and Ora Houston. We thank them for doing the right thing.

“We are weighing our options this weekend and will decide whether to sue on the petition initiative ASAP.”

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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)

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

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:

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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