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Council changes camping ban ballot language

Wednesday, March 3, 2021 by Jo Clifton

The Texas Supreme Court ruled Tuesday that City Council must change the language it used to describe Save Austin Now’s ballot proposition reinstating the ban on homeless camping and the prohibition on panhandling after dark. Council, which was meeting in work session when the ruling came down, complied with the court’s order by making a small change to the ballot language. Council was required to act quickly because Wednesday is the final day to submit ballot changes to Travis County Clerk Dana DeBeauvoir.

The plaintiffs –  Linda Durnin, Eric Krohn and Michael Lovins – argued that Council was required to use the language from the caption on the proposed ordinance, which they said was required by the city charter. However, the court concluded that the plaintiffs “have not made the clear showing required for emergency mandamus relief on this issue.”

However, the court did agree with Durnin, Krohn and Lovins that Council had used the word “anyone” in a misleading manner.

The court majority concluded that the plaintiffs “have clearly established their entitlement to mandamus relief in one respect. The Council’s ballot language says the proposed ordinance ‘create[s] a criminal offense and a penalty for anyone sitting or lying down on a public sidewalk or sleeping outdoors [in or near downtown]’ and for ‘anyone camping in a public area not designated by the Parks and Recreation Department.’ The ordinance itself, however, does not apply to anyone who engages in the listed activities. To the contrary, the ordinance contains several exceptions covering a variety of common uses of the sidewalk that the ordinance does not criminalize. Thus, only a subset of those who engage in the covered behavior – not just anyone – can be penalized under the ordinance.

“Although ‘anyone’ is just one word, it is quite an important word in this context. Including it on the ballot as directed by the Council would suggest to voters that the ordinance criminalizes and penalizes a much wider swath of conduct than it actually does. In this regard, the word ‘anyone’ in the Council’s ballot language threatens to ‘mislead the voters’ by ‘misrepresent[ing] the measure’s character and purpose or its chief features.’ Dacus v. Parker, 466 S.W.3d 820, 826 (Tex. 2015). The defect can be remedied with minimal judicial interference by striking the word ‘anyone’ in the two places it appears.”

By failing to mention any exceptions to the law regarding people being arrested for sitting or lying on the sidewalk, the court said, “Council’s proposition suggests that the ordinance’s prohibition on certain uses of the sidewalk sweeps much more broadly than it truly does. The proposition’s misleading use of ‘anyone,’ without qualification, affirmatively misrepresents the measure’s character and purpose or its chief features. … At a minimum, the word ‘anyone’ must be struck from the proposition so that voters are not misled about what their vote for or against the ordinance means.”

After hearing from City Attorney Anne Morgan, Council voted unanimously to remove the word ‘anyone’ from the ballot language. The new language reads:

Proposition B: Shall an ordinance be adopted that would create a criminal offense and a penalty for sitting or lying down on a public sidewalk or sleeping outdoors in and near the Downtown area and the 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 camping in any public area not designated by the Parks and Recreation Department?

Bill Aleshire, one of the attorneys working for Save Austin Now, was not satisfied with the result. He told the Austin Monitor, “The opinion and dissenting opinion can both be read as a strong warning to the Council: If the Council does not adopt the ballot language as required by the City Charter and Prop B fails, then an election challenge is likely to be successful.”

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Photo made available through a Creative Commons license.

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