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City facing two suits over ballot wording

Monday, August 20, 2018 by Jo Clifton

On Friday afternoon, attorney Bill Aleshire filed suit on behalf of a voter against the city of Austin over language City Council adopted to describe the proposition on the November ballot related to CodeNEXT or any other rewrite of the city’s Land Development Code.

The suit was filed with the Texas Supreme Court for Allan McMurtry, a voter who signed the CodeNEXT petition. McMurtry is asking the Supreme Court to invalidate the ballot language the Council adopted and force it to use “CodeNEXT” in the ballot language.

Aleshire said via email, “First, the Adler Council refused to respect the voters’ right to have their proposition placed on the ballot at all. A court ordered them to follow the Charter; so then, they fiddled with the wording to discourage interest and support in the proposition. We’ve now asked the Supreme Court to order the Council to follow the Charter and fix the unlawful ballot language the Council adopted.”

City spokesperson Andy Tate told Community Impact, “The ballot language conforms to the legal requirements and represents the key features of the proposed process for handling comprehensive revisions of the City’s land development code.” He added, “We look forward to the Supreme Court review.”

This is the second lawsuit the city is facing over language adopted to describe propositions put on the ballot by citizens’ petitions.

The first suit, which Aleshire filed last week on behalf of Ed English, asks the Supreme Court to invalidate language Council adopted to describe a citizens’ request for an efficiency audit.

In both instances, the deadline for a decision is coming quickly. The city must give County Clerk Dana DeBeauvoir the final language by Sept. 4, according to the litigation.

Decisions in both cases could hinge on language in Austin’s city charter. According to that language, the ballot must state “the caption of the ordinance,” with lines below to indicate the voter is voting for or against the proposition. The CodeNEXT petition had a clearly labeled caption, but the petition for the efficiency audit did not – at least that is what the city will argue in the latter case.

Attorney Renea Hicks is representing the city in the litigation over the audit proposal. Hicks points out in the city’s response to English’s request for a writ of mandamus that the proposed ordinance did not have a caption, although it was labeled “Austin Efficiency Audit Petition.”

The city’s response says,”The ordinance has no timeline for completing the study – or for that matter, initiating it. It does not include any funding provision or mechanism to pay the ‘independent third-party entity’ or its work producing the ultimate blueprint and it has no cost provision. Finally, it contains no implementation requirements, directives or instructions and requires no city action in response to the blueprint, whenever it is finished and published.”

Sponsors of the audit petition object to the ballot language, arguing that the language labeled “mission” on the petition is in fact the same as a caption. In addition, they object to the ballot language that states that the cost of the audit would be $1 million to $5 million.

The city’s response is that the city reached out to “the treasurer of the group pushing to put the initiated ordinance on the ballot,” and he said that “he had contacted two firms about the possible cost range and their estimate was ‘one to two million dollars.’ Also in response to an inquiry from the Mayor, Austin’s city manager told the Council that his finance staff had reviewed costs for these kinds of surveys. When asked whether the cost range that the Council was considering putting into the ballot language – that is $1 million-$5 million ‘accurately reflected’ the city finance staff’s estimate, the City Manager answered, ‘It does.’”

English argues that the wording that Council added to the ballot language, including references to the estimated cost, the city auditor and an external auditor, are inappropriate and were added to make the proposition less attractive to voters. That language was not in the proposition and should be stricken, English says.

The Supreme Court could rule on the lawsuit related to the audit proposition sometime this week. However, the court has given the city until Thursday to respond to the lawsuit about the CodeNEXT language, so it seems unlikely that there will be a decision on that issue before next week.

Photo by John Flynn.

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