Litigation seeks emergency writ of mandamus to force City of Austin to revise ballot language for Proposition B on May 1, 2021 ballot
Three registered voters—Linda Durnin, Eric Krohn, and Michael Lovins—who signed the Save Austin Now petition are lead plaintiffs (called relators in legal terms) in identical lawsuits filed with both the Third Court of Appeals and the Texas Supreme Court.
The Original Emergency Petition for Writ of Mandamus filed with the Third Court of Appeals (Case No. 03-21-00075-CV) filed February 16, 2021, asks the court to issue an immediate writ of mandamus that would compel the Austin City Council to adopt the caption contained in the petition as the ballot language. Either that or adopt alternative ballot language that more accurately reflects the primary purpose of the petition.
In addition the petition asks the court to order the City Council to hold a special called meeting to put accurate language on the May 1, 2021 ballot.
Finally the litigation asks the court to order the City to pay all costs of the lawsuit.
The Save Austin Now petition asserts that since the City Council loosened restrictions on June 20, 2019, camping and sleeping outdoors, sitting or lying down on public sidewalks, and solicitation during evening and nighttime hours have expanded dramatically. The result is disturbing to residents and businesses and contributes to loss of access to and enjoyment of public places.
If enacted the petition ordinance would ban these activities:
Camping in a public area not designated as a camping areas 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 the west campus of the University of Texas (but not within the campus itself).
Current ordinance, petition caption and ballot language
The lawsuit’s chief contention is that the council-adopted ballot language does not comply with the Austin City Charter and is biased in such as way as to dissuade people from voting for it.
The lawsuit points out that the caption in the Save Austin Now petition is nearly identical to the caption in the City’s current Ordinance No. 20190620-185:
Current ordinance caption—“An ordinance amending City Code Sections 9-4-11 related to prohibiting camping in public areas, 9-4-13 relating to prohibiting solicitation, and 9-4-14 relating to prohibiting sitting or lying down on public sidewalks or sleeping outdoors in the downtown Austin Community Court area; and creating offenses.”
Petition caption language—“A petitioned ordinance amending City Code Section 9-4-11 related to prohibiting camping in public areas, Section 9-4-13 relating to prohibiting solicitation, and Section 9-4-14 relating to prohibiting sitting or lying down on public sidewalks or sleeping outdoors in the downtown Austin Community Court area; and creating offenses.”
The council’s adopted language is far different: “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 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 lawsuit claims the City Council’s ballot language violates the 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 below the caption “shall set forth on separate lines the words, ‘For the Ordinance’ and ‘Against the Ordinance.’”
In the alternative, the City Council’s ballot language fails the common-law test established in Dacus v. Parker “as it will mislead voters about the purpose, character, and chief features of the petitioned ordinance.”
Attorneys representing the parties
The City of Austin is being represented by attorney Renea Hicks. Reached Sunday afternoon by telephone, Hicks said he still had not closely read the petition and has until midnight Tuesday February 23 to respond to the Third Court of Appeals.
“Typically the court moves quickly,” said Hicks, a 1976 graduate of the University of Texas School of Law. “I don’t know what effect the weather and the pandemic may have.”
Donna García Davidson and Bill Aleshire are attorneys representing the relators.
“The City Council has the responsibility to provide for the safety of people living in Austin, and they are not doing that,” Davidson said, in a press release issued by Save Austin Now. “The safety of both the homeless and neighborhood residents is imperative. The Austin City Council has a responsibility to ensure the integrity of this election, so the voice of all Austinites can be heard.”
Davidson, a 1992 graduate of the University of Texas at Austin’s law school, was a Republican candidate for Place 6 on the Third Court of Appeals in 2018, according to Ballotpedia. She lost the GOP primary to Michael Toth, who in the general election was defeated by Democrat Gisela Triana.
In the same press release, Aleshire said, “I joined this lawsuit to, once again, teach the Austin City Council that they cannot violate the law and the City Charter.” Aleshire, a former Travis County Judge and a Democrat, added, “The Council can’t make up their own ballot language, especially when it’s biased, unfair, deceitful, and directly violates the City Charter. I detest it when the Adler Council tricks Austin voters and tries to interfere in the people’s right of petition. I don’t want to see that happen on Proposition B.”
In a separate email Aleshire told the Bulldog, “I have not been involved in the stop-camping petition at all.”
“For me, this is not political. The people’s power to initiate law is a core democratic process and must be protected. Someone has to stand up to Republicans and Democrats and even Socialist-Democrats when they violate their oath of office.
“I should not have to sue my beloved City of Austin for violating the City Charter, the Open Meetings Act, or the Texas Public Information Act but, by God, I have and I will continue to do so.”
(Disclosure: Aleshire, a 2001 graduate of the University of Texas School of Law, represented The Austin Bulldog in two public information lawsuits in 2011. He currently serves as volunteer attorney for the Bulldog’s public information requests.)
In an email this morning, Aleshire said after Hicks files a response, “I’d expect a decision very quickly.”
“We also filed the same lawsuit with the Supreme Court because of concerns about timing of the deadline to finalize ballot language,” Aleshire added. (Case No. 21-0170).
Not the first ballot-language challenge
Aleshire filed two lawsuits against the City of Austin to challenge the council’s chosen ballot language for petition ordinances in 2018. Both failed to gain court approval to get ballot language more in line with the petitioners’ preferences.
Efficiency audit—As reported by the Bulldog August 11, 2018, Aleshire filed an Original Emergency Petition for Writ of Mandamus to challenge ballot language adopted by the City Council to describe an efficiency audit petition ordinance. Before filing that suit, Aleshire sent a legal shot across the bow in the form of a letter to City Attorney Anne Morgan he would sue if the council adopted other than a neutral presentation of the petitioned ordinance: “Shall a city ordinance be adopted requiring a comprehensive, independent third-party efficiency audit of all city operations and budget?”
Instead on a 6-5 vote the council approved:
“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 consultant, at an estimated cost of $1 million – $5 million?”
As the Bulldog reported August 11, 2018, The lawsuit seeking to overturn the ballot language was filed with the Texas Supreme Court (Case No. 18-769). The Supreme Court denied the petition.
Proposition K got 129,355 yes votes but the no votes totaled 175,920, more than 57 percent.
The other ballot language challenge was over a petition ordinance in opposition to a citywide rezoning ordinance that was intended to be enacted without giving property owners a right to protest rezoning of their property.
CodeNEXT—Opposition to CodeNEXT was massive. Community Not Commodity, represented by attorneys Fred Lewis, who drafted the petition ordinance, and Bill Bunch had to win a court fight just to get it on the ballot.
Then they fought the City over the ballot language, which they sought to word as follows:
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?
But instead the City Council worded the ballot like this:
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?
As the Bulldog reported August 17, 2018, The lawsuit seeking to overturn the ballot language was filed with the Texas Supreme Court (Case No. 18-749). The Supreme Court denied the petition for writ of mandamus.
Proposition J netted 166,647 yes votes but the no voters totaled 179,690, almost 52 percent.
Although Aleshire lost both of the 2018 cases, he said there is an important distinction regarding the new case for the Save Austin Now petition. The current petition contained a caption. Neither of the two 2018 initiative petitions did so. The caption is important as it is entitled to protection under the Austin City Charter, he said.
Trust 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 from the National Newspaper Association for investigative reporting. 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:
Dacus v. Annise Parker and City of Houston (Case No. 13-0047) June 12, 2015 (14 pages)
Ordinance No. 20190620-185, enacted by the Austin City Council June 20, 2019 (8 pages)
Original Emergency Petition for Writ of Mandamus (Case No. 03-21-00075-CV) in re: Linda Durnin, Eric Krohn, and Michael Lovins, February 16, 2021 (102 pages)
Save Austin Now’s petition (3 pages)
Links to related Bulldog coverage:
Council’s ballot language triggers lawsuit(s), August 11, 2018
Ballot language draws second lawsuit, August 17, 2018