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Curtis files suit against Goodman, but incumbents likely to be on ballot

Monday, April 1, 2002 by

District Judge Suzanne Covington is expected to rule today on whether Council Member Daryl Slusher’s opponent, Kirk Mitchell, may continue his lawsuit against the incumbent; but whatever the outcome of that ruling it seems unlikely that Mitchell will succeed in having Slusher’s name removed from the ballot. On Friday, Covington dismissed City Clerk Shirley Brown from the suit, agreeing with Assistant City Attorney David Smith that Brown must place Slusher’s name on the ballot under the Texas Election Code. Attorneys for Slusher and Mitchell are hoping to get written arguments to the judge early so she will have time to consider them and make a decision today.

Mitchell contends that Slusher is ineligible because he received a contribution of voters’ signatures from the Committee for Voter Choice, a political action committee started by former Mayor Bruce Todd. Mitchell’s lawsuit says those signatures are worth at least $1,850 and constitute an illegal campaign contribution under a Charter amendment approved by voters in 1997. That amendment was placed on the ballot as the result of signatures gathered by Linda Curtis, who is making similar allegations against Mayor Pro Tem Jackie Goodman. Covington denied Curtis’ motion to intervene in Mitchell’s suit, but Curtis filed her own suit against Goodman and the City Clerk Friday afternoon, with similar allegations.

Brad Rockwell, Mitchell’s attorney, said Sunday that he would be making the same arguments in his brief as he made orally on Friday—that Slusher’s receipt of the signatures “results in his forfeiture of eligibility.” The Charter amendment says that the penalty for violation is forfeiture of office, not ineligibility; but Rockwell said, “One of the corollaries of being unable to serve is being ineligible to be on the ballot.” The statutory deadline for removing a name from the ballot was Friday, before a final decision on the legal wrangling. But Rockwell said he may ask the judge to reconsider his request for an injunction to remove Slusher’s name from the ballot.

Attorneys Doug Ray and Buck Wood represent Slusher. They argued that removing Slusher’s name from the ballot would be an improper remedy, one not prescribed by law, even if Slusher did violate the campaign finance law. That argument was the same one being argued by the city in asking for Brown’s release from the suit. In addition, they argued that an ineligible Council member may only be removed from office by the City Council itself or via a lawsuit filed by the Attorney General, the District Attorney or the County Attorney.

Judge Jeanne Meurer will hear similar arguments from Linda Curtis’ attorney Tuesday concerning Council Member Jackie Goodman. Ann del Llano represents Curtis. Meurer has been a district judge since 1988, when she beat Margaret Moore, now a County Commissioner. Meurer has personal experience with election contests, since she filed one after the Democratic Party declared her ineligible for the office. The ruling was made after her name had already been placed on the ballot, and Meurer won the race with 67 percent of the vote. The ineligibility determination, based on the fact that Meurer lived on the Travis-Bastrop County line, was overturned in court on evidence that Meurer paid taxes and voted in Travis County and intended to be a resident.

Curtis has argued that not only did Goodman illegally receive signatures from Todd’s PAC, but that the city miscounted the Mayor Pro Tem’s signatures. Rockwell said Mitchell may also amend his pleadings to say that Slusher’s signatures are insufficient or invalid. “We have some validation work being done and have hired a statistician to help us,” Rockwell said.

Attorney Jim Cousar will be filing an amicus brief for Todd. He said the plaintiff’s attorney is asking the judge to read something into the Charter that simply is not there. While a judge may respond to such arguments when there is a clear legislative history that shows the Legislature’s intent to come up with a specific remedy, that is not the case here, Cousar explained. He noted that a federal judge has already ruled that two of the 12 provisions of the amendment were unconstitutional. “The whole ’97 amendment is too flawed to enforce.” Because the Charter provision came through the initiative process, through signatures petitioning the City Council to put the measure on the ballot, the amendment did not go through the usual argument and scrutiny it would have if the Council had brought up the measure, held hearings, asked lawyers to make suggestions, etc.

Cousar agreed that the same lack of scrutiny applies to the current Clean Campaigns amendment that will be on the May 4 ballot. If that measure passes, it will replace the current Charter language and create a complex public financing provision. The City Council has also placed repeal of the current Charter section regarding campaign finance regulations on the ballot. If both pass, repeal of the old rules would be irrelevant. To see the ballot language for all the charter amendments, go to http://www.ci.austin.tx.us/news/02/elec_charter.htm

The Council has also placed an item on the ballot that, if approved, would repeal the current term limits provision. And it is that term limits section, with its accompanying provision that a two-term incumbent bring in 5 percent of registered voters’ signatures, that started the argument. Council Member Beverly Griffith, the third two-term incumbent, does not face any court challenge. Nor does Linda Curtis, who organized Griffith’s signature-gathering drive. American-Statesman columnist Susan Smith chastised Curtis for being inconsistent on Saturday, since she accepted more than $2,700 from Griffith between Nov. and Dec. 31. Read more at http://www.austin360.com/aas/metro/smith/

In addition to Curtis, Goodman faces Billy Sifuentes and fellow environmentalist Robin Stallings on the ballot. Stallings has said he supports Goodman and would withdraw as soon as it became clear that Goodman would remain on the ballot. Slusher faces Mitchell, Vincent Aldridge, Jennifer Gale and Craig Barrett. (See In Fact Daily, March 26, 2002, March 6, 2002 .)

Planning Commission not anxious to take sides

After studying the proposed ordinance to prohibit people from parking vehicles in their front yards, the Planning Commission adopted a carefully worded resolution that avoided taking a position on the divisive issue. Instead, the commission’s recommendation to the City Council will include a list of provisions to consider should the Council decide to adopt the ordinance.

The issue had been debated for several months among neighborhood groups, police officials and Council members before winding up in the Comprehensive Plan Subcommittee of the Planning Commission. The most carefully scrutinized aspect of the ordinance was the opt in or opt out feature, since the practice of front-yard parking is embraced by some neighborhoods as both a right and necessity while being condemned in others as an eyesore and a drain on property values. (See In Fact Daily, March 18th, 2002 .)

The subcommittee’s recommendation outlines a process by which both neighborhood association boundaries and neighborhood planning area boundaries could be used in deciding to opt in or out of the ordinance. Supporters of using neighborhood association boundaries pointed out that those organizations were generally more stable and more compact, which would make it easier to get a high level of informed citizen participation. Those who favored using neighborhood planning boundaries, which cover a much larger area, pointed to the ease of creating a new neighborhood association (of ten people or more) with the express goal of skirting the will of the existing neighborhood association in regards to the parking issue.

The compromise reached by the subcommittee calls for making the question of front-yard parking part of the neighborhood planning process. The neighborhood planning team would be authorized to recommend which areas within their area would be covered by the ordinance and which would not. Areas with existing plans could amend the plan to incorporate the issue.

In areas without a neighborhood plan, neighborhood association boundaries would apply. In the case of two overlapping neighborhood associations that choose different options, the subcommittee recommended allowing yard parking.

The committee also included a list of suggested exemptions. Parking should be allowed: in front yards screened by a privacy fence, during holidays, for specified activities such as unloading or washing a vehicle, and for homes that face a street on which parking is prohibited.

The commission took some public comment before voting on its recommendation.Northwest Austin resident Kirk Lawrence told commissioners that parking on his street, Macmora Road, was not feasible because of the width and condition of the street. “When I first heard about this, I thought it was stupid,” he said. “You just need to throw it all out. It’s ridiculous.” Jeff Jack, representing the Zilker Neighborhood Association in south Austin, offered a more detailed critique concerning the specifics of the recommendation. “Neighborhood associations that are created for one issue. once that issue is resolved, they go away. Now we’ve got on the books a whole bunch of little neighborhood associations that don’t have any active members,” he said. Although Zilker had officially voted to opt out, Jack said, “We have a problem in that other neighborhood associations could be created within our boundaries that want to have the ordinance.”

Dawson neighborhood resident Ricky Bird lent the proceedings a literary air by applying poetry to his presentation. He adapted lines from a play by author Hughes Mearns to tell commissioners that despite their best efforts, the ordinance wasn’t ready. “While I was going to the fair, I met an ordinance that wasn’t there. It’s still not there today . . . I want you all to make it go away,” Bird said. He asked for proof that front-yard parking lowered property values, and predicted the ordinance—even with the suggested amendments—would be rejected as insufficient and incomplete. “I don’t think this thing passes muster, and I guarantee you all of the Bubbas in South Austin don’t think this qualifies.”

The commission voted to send the subcommittee’s recommendations to the full Council, without specifically taking a position on whether the ordinance should be adopted. “In places where people know that there’s no other parts of the city code that can help them with serious problems, we have a tool,” Commission Chair Ben Heimsath said in urging commissioners to forward the report. “But we also know that the misapplication of that tool can be very serious.” Commissioner Dave Sullivan, who helped draft the subcommittee report, actually voted against sending it along to the Council, since he still believed there were other options for addressing the perceived harm of front-yard parking. “I do support keeping Austin weird in the sense that Austin is a unique place,” Sullivan said. “Just because San Antonio does it doesn’t mean we need it in Austin.” The Council is tentatively scheduled to take additional comment at a series of public hearings in April.,

Friday.

New map . . . City demographer Ryan Robinson said Sunday he has completed a new map for the single-member districts that voters will be considering on May 4. The revised map, Robinson said, puts the near south neighborhoods of Travis Heights, Bouldin Creek, Zilker and Barton Hills, together with Clarksville and Hyde Park . Some Council Members wanted all of the 78704 zip code to be together, but that was too difficult, given the other constraints demographers had to work with, Robinson said. He noted that the new map only splits three Neighborhood Planning areas, as opposed to the prior version, which split 12 such areas. He said the Law Department is happier with the new map because there is less overall variance in the number of voters per district. We expect to have a graphic of the map or a link to the city web site in a day or two . . . Hearings on single-member districts start tonight . . . The city will hold two public hearings on dividing the city into eight districts for the election of Council members. One of tonight’s hearings is at the Joe C. Thompson Conference Center, Room 1.110, from 6:30 to 8:00pm. The other is at the Murchison Middle School Cafeteria, 3700 North Hills, from 7 to 8:30pm. The city’s web site carefully refrains from calling these events City Council meetings, noting instead that “a quorum of the City Council may be present.” Other hearings are scheduled for Tuesday night from 6:30 to 8pm at the Spicewood Springs Branch Library, 8637 Spicewood Springs Road and Wednesday from 7 to 8:30pm at Bowie High School, 4103 Slaughter Lane, with similar notations about the presence of the City Council. City spokesman David Matustik said there will also be four more hearings on the single-member district map held next week. The City Council plans to vote on the map at its April 11 meeting. Early voting starts on April 17. The election is May 4 . . . Hispanic scholarship available . . . The Fiesta de Independencia Foundation has announced that it will be awarding 10 scholarships of $1,000 each to Austin area 2002 high school graduates entering college this fall. For more information, or for an application, call Veronica Briseño at 974-2264.

© 2002 In Fact News, Inc. All rights reserved.

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