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Zimmerman, Troxclair file brief against city

Monday, March 14, 2016 by Jo Clifton

In its response to a lawsuit seeking to change ballot language for the May 7 election on regulations for transportation network companies, the city of Austin is arguing that the Uber supporter who filed the writ of mandamus last Wednesday at the Texas Supreme Court was seeking the wrong remedy and had failed to file the lawsuit on time.

At the same time, City Council members Ellen Troxclair and Don Zimmerman – who lost an argument with their colleagues last month about the language for the May 7 ballot – have now filed an amicus brief in support of the lawsuit against the city.

Local Republican leader Roger Borgelt filed the brief on behalf of Troxclair and Zimmerman. Like the writ of mandamus filed last week, the amicus brief complains that the ballot language does not present the question clearly enough to ensure voters are not misled.

Zimmerman rarely agrees with city staff, but in this instance, he said, the City Attorney’s Office originally presented language very similar to language he had proposed on the City Council Message Board. However, Council ultimately voted for different language. He said that if the adopted language is not changed, he believes that whoever loses the election – for example, taxi companies – could challenge the results in court because of the wording.

The person whose name appears on the writ is Samantha Phelps, an Uber supporter who signed the petition seeking the election.

Zimmerman and Troxclair voted against the language that was proposed by Council Member Ann Kitchen and adopted 9-2.

They now argue that “voters under the adopted formulation of language will not know whether they are establishing or repealing the 1 percent fee on transportation network companies. The City Council discussed the absence of the fee in open session and there was no clarity as to whether the ballot language would reflect changes to the fees to the voters.”

The ordinance adopted by Council would impose a 2 percent fee and require drivers to undergo fingerprint-based background checks, the major point of disagreement.

However, attorneys for both Phelps and for Zimmerman and Troxclair are stressing the failure to include language on the ballot about the fees. That’s because the major case on the topic, Dacus v. Parker (Texas Supreme Court, 2015) hinged on a failure by the city of Houston to specify that if voters approved a ballot item about drainage and streets, it would result in drainage charges to most property owners.

The court could therefore find the case similar enough to that one to force the city to change the ballot language.

The Austin Monitor asked Peck Young, former political consultant and director of the Center for Public Policy and Political Studies at Austin Community College, whether he could recall another instance in which a Council member opposed the action of his or her colleagues in court.

Young said he could remember only one time, in 1984, when Council Member Mark Spaeth filed a brief in federal court opposing a settlement with the Mexican American Legal Defense and Education Fund over single-member districts.

Young testified at that time as an expert witness that the at-large system discriminated against minorities.

Council had voted 6-1 to settle the lawsuit and set up districts. But Spaeth argued that the at-large system did not discriminate against minorities and should remain, Young said. Federal Judge James Nowlin sided with Spaeth and refused to sign the agreed judgment.

“The judge took Spaeth’s position, and Austin became, thanks to that Council member, the only major city in the U.S. not to have single-member districts,” Young said.

Young opined that it might be “inappropriate, but it’s not illegal” for Council members to oppose their city’s position in court if those Council members did not vote for that position when the matter was put to them.

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