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Judge dismisses lawsuit against Slusher

Wednesday, April 3, 2002 by

The names of Council Members Daryl Slusher and Jackie Goodman will appear on the May 4 ballot as a result of a ruling yesterday from Judge Suzanne Covington. The judge dismissed a lawsuit by Slusher’s opponent Kirk Mitchell, declaring that the candidate did not have standing to seek Slusher’s removal from the ballot. “Implicit in that decision is a finding that as a matter of law the signatures themselves . . . do not constitute a campaign contribution,” Covington said. The signatures, of course, are those 1,850 gathered by former Mayor Bruce Todd and his Citizens for Voter Choice. “I’m making no decision about whether the money paid to the petition gatherers is a campaign contribution,” Covington said.

Goodman, Slusher and Council Member Beverly Griffith each engaged in a long campaign to obtain the more than 18,000 signatures needed to run under the City Charter’ s term limits provision.

Covington had already denied Goodman’s opponent, Linda Curtis, a chance to join the lawsuit and the judge’s ruling dampened Curtis’ hopes of knocking the three-term incumbent off the ballot. However, Curtis and her attorney, Ann del Llano, proceeded to Judge Jeanne Meurer’s court for an additional hearing, which did not include whether Curtis has standing to sue Goodman. Todd gathered signatures for Goodman as well.

When del Llano told Meurer that there would be factual as well as legal issues to decide, Goodman’s attorney, Jim McClendon of Hilgers Watkins, said his client would be requesting a jury trial. Del Llano asked Meurer not to hear the case after the judge explained that she herself had been the subject of an election contest. (See In Fact Daily, April 2, 2002. ) The earliest the trial could take place would be May 20. It is likely that McClendon will file a motion to have Curtis' lawsuit dismissed long before that date, however.

Goodman has 18,856 signatures, according to calculations by the City Clerk Shirley Brown. That is about 600 more than the bare minimum of 5% of the city’s registered voters. “I am pleased that the voices of all those who signed my petitions will be counted. This will happen in spite of Linda Curtis’ undemocratic efforts to silence them,” Goodman said.

Curtis said she was disappointed by the outcome. She accused Goodman’s lawyer of asking for a jury trial in order to delay the proceedings, saying that she would really prefer that the City Clerk check all of Goodman’s signatures—as opposed to the 25 percent sample that has been done.

Slusher said, “I’m glad the judge determined the 20,000 people who exercised their First Amendment rights will have their signatures counted. Kirk Mitchell just put the whole city through all this noise over the campaign finance law. . . the reason he’s so strong for that is he’s got a trust fund he’s going to use to finance his campaign. That’s one of the things that’s wrong with the charter amendment—with the $100 dollar limit for contributions; and a wealthy candidate can finance his own campaign. I challenge him to abide by the $100 limit law.” Mitchell said he does not have a trust fund, but noted that his parents are both wealthy and generous. He is the son of George Mitchell, founder of Mitchell Energy of Houston.

Mitchell noted that he has done good things with money received from his family, as well as his own investments. He said he signed a $90,000 loan guarantee for the Save Our Springs Alliance to fund two lawsuits that resulted in the listing of the Barton Springs salamander as an endangered species.

The Place One challenger had not decided yesterday whether to appeal Covington’s ruling to the 3rd Court of Appeals. He said he would probably be filing a complaint in another venue, such as the Texas Ethics Commission.

Mitchell and Curtis have said that the signatures gathered by Todd’s group were paid for through what they contend would be an illegal campaign contribution. The filing deadline for contributions received during the past three months is 5 pm Thursday. So, it seems likely that Mitchell and Curtis might be filing complaints after looking at those reports. Karen Lundquist, general counsel to the State Ethics Commission, said the commission would have jurisdiction over failure to report a contribution. “Candidates are required to report contributions and a contribution is a thing of value that is given to a candidate to assist in a campaign.” She noted that what might start out as an independent expenditure could become a contribution. Violation of the state law, Lundquist noted, is a class C misdemeanor, punishable by a fine only. The commission also has discretion to impose a civil penalty of up to $5000 or three times the amount at issue, she said.

Alfred Stanley, Goodman’s finance director, said he has looked carefully at rulings from the Ethics Commission, but has found none that address signatures. “A signature is an expression of the will of the voters and as such has no inherent monetary value,” he said. “It’s like a ballot. Everybody who signed said we want Jackie or Daryl or Beverly’s name to be on the ballot. By its very nature, it is something special.”

“We’re very pleased today with what happened in both lawsuits,” said Assistant City Attorney David Smith. “The city is candidate-neutral in these lawsuits. All we want is to not have interference with the election process. We want to be able to get the ballots to the printer, get the ballots distributed, and give the voters their chance on Election Day to vote on their candidates. From the city’s perspective, that was pretty much the outcome in both cases today, so we’re very pleased.” Absentee voting begins two weeks from today.

Two citizen committees will review portions of proposed ordinance

Yesterday’s Commissioners Court session began what promises to be a lengthy and difficult process to craft a waste-siting ordinance that can please both sides of the contentious issue. The speakers were familiar to county commissioners: individuals who protested the recent BFI expansion off Old Kimbro Lane, fought long and hard for better controls on the Northeast Landfill and who can’t abide another business that looks like it’s about to become a salvage yard. None of them favored landfills, at least not along the lines of those run by BFI or Waste Management Inc.

Harris Branch resident Steve Sibrel was representative of many of the speakers. Sibrel said he was no longer proud of his Harris Branch home due to the sight and stench of the Giles Road landfill. “‘Don’t Mess with Texas’ obviously does not apply to landfills,” Sibrel told the court, stressing that the ordinance the court adopted needed to be both effective and enforceable.

Sibrel also pointed out that the draft ordinance—which should be posted on the county’s website by Friday—does not address chemical or hazardous waste. Many speakers agreed that they wanted Travis County to step up and enforce what they say the Texas Natural Resource Conservation Commission failed to enforce. What County Commissioners did was set a process and timeline, which should place the solid waste-siting ordinance on the Commissioner's agenda for approval on June 4. Next week two subcommittees will be appointed to review two sections of the ordinance.

According to a memo from County Judge Sam Biscoe, one section will address those problems of particular concern to the northeast quadrant of the county and a second will address those in the southeast. Each subcommittee will be made up of between 8 and 12 individuals from both the neighborhood and the landfill companies. Biscoe and Commissioner Ron Davis will meet with the northeast quadrant group. Biscoe and Commissioner Margaret Gomez will meet with the southeast quadrant group. Specifics from each group will be presented to the full Commissioners Court by April 23.

At that point, the reconciled ordinance will be posted for public comment. That will require a 30-day notice in the newspaper. Commissioners estimate a vote on the ordinance should happen at the first court meeting in June. Those who are interested in the ordinance can be updated regularly by e-mail by calling Scheleen Walker at 854-9430.

The City Council is also scheduled to hear an update on odor complaints around landfills in Northeast Austin today.

Recommendation Highlights of the Solid Waste Working Group:

• A new landfill in Travis County, as a matter of public policy, is acceptable with proper regulation and enforcement.

• A new ordinance can legally limit the lateral expansion of existing landfills beyond the metes and bounds of their permits. However, there is legal disagreement over whether it can legally limit expansion within those metes and bounds. There is also a legal disagreement over whether a new ordinance can limit vertical expansion of existing landfills. The group was not able to resolve these disagreements.

• No existing solid waste facilities should be grandfathered or exempted from a new ordinance. BFI and Waste Management have argued that their expansion vertically or inside existing metes and bounds cannot by law be restricted by the new ordinance; TNRCC has jurisdiction over that.

• Setbacks for facilities should increase with the potential adverse impact of the facility.

• Variances should be allowed only when appropriate criteria are met. Final authority on variances should rest with Commissioners and only for operators with good compliance/operating histories.

• There should be effective local public notice and public hearings added to the process for siting any kind of solid waste facility in the county.

• Travis County should establish an effective enforcement regime.,

Friday.

Today’s work session . . . The City Council may take up the issue of single-member districts and the wording for the ballot items on campaign finance laws. It is possible that more people will start paying attention to these issues with all the publicity surrounding the lawsuits against Slusher and Goodman, but it’s hard to tell at this point. The Council has already voted to put an item on the ballot that would repeal the current campaign finance regulations even if the citizen-sponsored initiative does not win voter approval. Voters will also be able to repeal the term limits amendment, or reaffirm their faith in it . . . Heavy weight help for NUNA . . . State Senator Gonzalo Barrientos has written to the City Council criticizing a proposed zoning change request for the Villas on Guadalupe. In his letter, Barrientos complains that citizens have been treated less fairly than the developer, noting several postponements of consideration. The Senator says “It strikes me as unlikely that any development with ‘villas’ in the name would be characterized as affordable housing. Also, I fear that the primary benefit from this project would go to a transient population—students—at the expense of the permanent Austin residents living nearby.” He also notes that the project will create “significant traffic and parking ramifications in an area already under siege from University-related automobile traffic.” It is unusual for the Senator to intervene in zoning cases, but this is a hot one, and Barrientos is facing a Republican opponent in November. The Council is expected to make a final decision on the matter Thursday . . . Rally for Palestinian Rights today . . . Richard Fawal of Grassroots Solutions is making a personal request to friends to attend a rally at 5 pm today at the State Capitol “to call for an end to this illegal, immoral and unjust situation,” in his hometown of Ramallah. Fawal notes that his family and friends in Ramallah are “trapped in their homes, many without electricity or water.” The rally is cosponsored by the Campus Coalition for Peace and Justice and the American-Arab Anti-Discrimination Committee . . . New map approved . . . Travis County Commissioners have approved a revised flood plain map for Travis County that will go into effect on April 15. The only major changes to the FEMA map are to areas within Precinct 3. The revisions to the maps are the result of better topographical information, Joe Gieselman, executive director of Transportation and Natural Resources, told commissioners.

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