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 Top Gun to Defend City Charter

City of Austin has hired attorney Renea Hicks to
defeat Council Member Zimmerman’s challenge

by Ken Martin
© The Austin Bulldog 2015
Posted Thursday August 27, 2015 2:35pm

Anne MorganAnne MorganRenea HicksRenea HicksInterim City Attorney Anne Morgan has hired veteran attorney Max Renea Hicks, a sole practitioner based in Austin, to defend the city in the federal lawsuit brought by District 6 Council Member Don Zimmerman. Via a letter dated August 13, 2015, the City has agreed to pay him $350 an hour and a total amount not to exceed $55,000.

As previously reported by The Austin Bulldog (see links to stories, below) Zimmerman’s lawsuit seeks to overturn numerous provisions of Article III, Section 8 of the Austin City Charter to allow him to immediately start raising money for his reelection bid in 2016 and accept money from anywhere in the country. The Charter allows money to be solicited or accepted only within 180 days of the election and limits the amounts that may be accepted from sources outside the City of Austin.

The lawsuit also challenges limits on individual campaign contributions, currently $350, and would if successful allow incumbents to raise money year-round and build unlimited campaign war chests—in essence, giving the mayor and council members the same kind of incumbent protection enjoyed by state and federal lawmakers.

Hiring Hicks is somewhat ironic because in 1997 he defended the City of Austin in a federal suit brought by the group that won voter approval for the very restrictions that Zimmerman is challenging.

Activists happy Hicks will defend charter

Austinites for a Little Less Corruption delivered petitions to the office of then-City Clerk Elden Aldridge for review. After a month of work in which his employees reviewed the petition signatures primarily by leafing through bulky printouts of registered voters, Aldridge ruled there were not enough valid signatures to require an election to be called. The group sued in federal court, and won. The City earned a scathing opinion from U.S. District Judge Sam Sparks, who ripped the laborious, inefficient, and ultimately wrong procedure used to invalidate the petitions.

Once on the ballot and with 61,382 votes cast, the proposition to change the City Charter and enact reforms was approved 72-28 percent.

Linda CurtisLinda CurtisLinda Curtis, who led the petition drive for Austinites for a Little Less Corruption” and was seen all over the city gathering signatures, said of Hicks’ defense of the city’s position, “He has to pay penance” by defending the campaign finance restrictions.

But Curtis bears no grudge for Hicks’ part in representing the city then. “He had such a bad case, it wasn’t his fault he lost that case. He had to do a job but it was not a good case.”

“He was exactly my choice” to defend the City against Zimmerman’s challenge, she said of Hicks. “Seriously, he’s probably the best in town.”

Fred LewisFred LewisAttorney Fred Lewis, who helped draft the campaign finance restrictions that Zimmerman is now challenging, and who previously told The Austin Bulldog he feared the city might not strongly defend those restrictions, was heartened to hear that Hicks has been hired to represent the city.

“Renea is a very fine lawyer,” said Lewis, who was an assistant attorney general when Hicks was the state solicitor, a position also within the attorney general’s office. (Later the one-man job was renamed solicitor general and given an expanded staff and responsibility to supervise all appellate litigation on behalf of the attorney general.)

“We worked a couple of cases together years ago and he will do a good job. He vetted appellate cases and I tried a couple of them. I would argue on appeal and he would help. He is a very professional lawyer,”

Andy MartinAndy MartinAttorney Andrew “Andy” Martin was Austin City Attorney when the 1997 petition lawsuit was filed and he hired Hicks to defend the city.

As to concerns some expressed about whether the City would put up a strong defense of City Charter restrictions on campaign finance, Martin said, “Hiring Renea is a good sign. He is probably very well aligned with the laws he’s been hired to defend.

“He’s a very, very good lawyer.”

Hicks deep in experience

The Terms of Engagement, set forth in 10-page letter through which Hicks was hired, require that all media inquiries about this case must be referred to Morgan, who acts as managing attorney in the case.

Morgan, an Austin native who started as a division chief in the City’s Law Department in 2004, was promoted to deputy city attorney in November 2011, and then made interim city attorney in December 2014. Of Hicks, she said, “I think he’s a great lawyer and I'm looking forward to working together with him.”

She said she was pleased with the work Hicks did in representing the city before the Texas Supreme Court in the long-running—and only recently settled—lawsuit involving the City’s condemnation of the block owned by attorney Harry Whittington, where the City built the Convention Center Parking Garage at 5th and Red River.

Although the city attorney must seek City Council approval if the Zimmerman case will require spending more than $58,000 for Hicks’ work (the maximum amount authorized for the City Attorney) Morgan said, “My hope is this case will not exceed $55,000.” (At $350 an hour,  $55,000 would pay for 157 of legal work on the case, except that expenses will also come out of that amount.) The agreement specifies that the city may only be billed for legal work that Hicks personally performs and no others. (See link to letter, below.)

Since October 2008 the City has paid Hicks $391,160 for legal services, which is as far back as the Austin Finance Online site shows records for him. But he has been doing legal work for the City since the 1990s, when he was with George Donaldson & Ford.

Hicks, 68, graduated from the University of Texas with a law degree in July 1976, according to records maintained by the State Bar of Texas (and confirmed by the University’s Diploma Services office, because online records don’t go back that far).

He worked in the attorney general’s office from 1977 to 1980 and again from 1984 to 1993, according to Martindale.com. He was a named a partner in the Austin firm George Donaldson & Ford in 1996, according to the Austin American-Statesman, and stayed with the firm through 1999, according to Martindale.

Hicks established his solo practice in 1999, and also taught for the next four years as adjunct professor in the University of Texas School of Law.

Works to protect environment

Press accounts of the legal work done by Hicks show that he has been at the forefront of a number of high-profile cases, and indicate the kind of clients he prefers.

Hicks often has represented environmental organizations. In 1996 he represented the Sierra Club in seeking a court-ordered water conservation plan in San Antonio aimed to protect the endangered snail darter, which depends on the spring flows from the southern portion of the Edwards Aquifer, the Austin American-Statesman reported.

In 1999 he represented the City of Austin, Lower Colorado River Authority, Barton Springs/Edwards Aquifer Conservation Authority, and eight Hill Country ranchers in a federal lawsuit against the Longhorn Pipeline and plans to reactivate the long-dormant facility to transport petroleum products from Houston to El Paso. He continued to monitor and oppose operation of the pipeline. After six years of legal wrangling, and while the plaintiffs’ appeal was pending before the Texas Supreme Court, Hicks lamented the fact that the pipeline would start flowing in August 2004, the Statesman reported.

In 2000, The Austin Chronicle reported that Hicks was one of the contract lawyers who worked to get SB 1017 overturned and won the case at the Texas Supreme Court. The FM Properties Water Quality Zone Bill would have allowed landowners with more than 1,000 acres to create zones exempt from Austin's annexation and water quality protection zones.

In 2006, the Statesman reported that Hicks represented the Save Our Springs Alliance and its executive director, Bill Bunch, and overturned a $5,000 sanction against Bunch for filing a frivolous lawsuit. But the $300,000 judgment for attorneys fees was upheld for its lawsuit against the Lazy 9 Municipal Utility District in the Sweetwater Ranch development.

In 2007 Hicks was the appellate attorney for SOS in the same case. The Austin Chronicle reported Hicks’ comments: “It is not easy to pick out the worst thing about what’s happened in this case, but I’d nominate the court decision forcing a nonprofit group, which has been instrumental in protecting the Hill Country and Austin from the ravages of money-driven private development, to fork over three hundred thousand dollars to cover the attorney fees of the MUD’s developers.”

He battles for Democrats

Sometimes Hicks has represented Democrats in the heat of an election campaign, such as in 2008, when he defended, and won, the right of State Representative Dawnna Dukes to continue airing TV commercials that criticized her opponent, Brian Thompson, for never having voted in a Democratic Primary, the Statesman reported.

For decades Hicks has been at the center of Democratic Party efforts to oppose gerrymandering enacted by a Texas Legislature controlled by Republicans. His clients were not only lawmakers but also Travis County and the City of Austin. In fact, Morgan said he represents the City in the latest—and still-ongoing—redistricting case.

He defended the state senators, Democrats all, who decamped to New Mexico during the 2003 legislative session to deny the senate a quorum to enact redistricting legislation. He was able to defeat the request of Governor Rick Perry and Lieutenant Governor David Dewhurst to obtain sanctions against those senators.

But Hicks was not always on the side of those who challenged redistricting.

Steve BickerstaffSteve BickerstaffWhile still with the attorney general’s office, Hicks represented the state in redistricting cases. In that capacity Hicks crossed swords with attorney Steve Bickerstaff, founder of the Bickerstaff Heath & Smiley law firm.

Bickerstaff, now retired, is one of the foremost experts on redistricting and author of Lines in the Sand, which covers the history of the 2003 Texas congressional redistricting masterminded by U.S. Representative Tom DeLay and its aftermath. Bickerstaff also adopted the California model to draft what became, with revisions by Fred Lewis at the request of Austinites for Geographic Representation, Austin’s new 10-1 system to implement geographic representation.

“He won,” Bickerstaff said of Hicks’ work in those contested redistricting cases.

Regarding Hicks ability to represent the City of Austin against Council Member Zimmerman’s challenge to campaign finance restrictions, Bickerstaff said, “He is a competent lawyer and will do a good job.”

This report was made possible by contributions to The Austin Bulldog, which operates as a 501(c)(3) nonprofit to provide investigative reporting in the public interest. You can help sustain The Austin Bulldog’s reporting by making a tax-deductible contribution.

Links:

City of Austin Letter to Hire Attorney Renea Hicks in Don Zimmerman v. City of Austin  August 13, 2015 (10 pages)

Citizens United v. Federal Election Commission  (183 pages)

Donald Zimmerman v. City of Austin, Texas (30 pages)

Greater Austin Chamber of Commerce, et al v. The City of Austin  (11 pages, including four pages of articles from the In Fact newsletter about the case)

Katz v. City of Austin, Texas  (65 pages)

Plaintiff’s Memorandum in Support of Motion for Preliminary Injunction (40 pages)

Memorandum Opinion and Order in Gordon v. City of Houston et al (42 pages)

Related Bulldog coverage:

Zimmerman Lawsuit Not First Challenge: City has a mixed record of defending attacks on City Charter’s restrictions on campaign finance, August 14, 2015

Council Member Zimmerman Sues City: Wants to overturn campaign finance restrictions and could gain himself a personal benefit, July 29, 2015

Zimmerman Lawsuit a Costly Boondoggle: First council candidate in decades, if ever, to sue the media in effort to suppress coverage, January 20, 2015

Zimmerman Lawsuit Dismissed and Sanctioned: The Austin Bulldog’s anti-SLAPP motion approved after second hearing, damages and cost assessed, January 7, 2015

Bulldog Defends Zimmerman Lawsuit, November 25, 2014

Zimmerman Sues Bulldog, Claims Defamation: District 6 candidate Don Zimmerman claims ‘The Austin Bulldog’ report made false accusations, October 16, 2014

Candidate Lost Custody Over Abuse: District 6 Council candidate Don Zimmerman injured, alienated daughter, court records state, October 9, 2014

Other coverage (access may involve paywalls):

New CM Zimmerman Loses to Bulldog: Sanctioned for lawsuit against publication, The Austin Chronicle January 9, 2015

Zimmerman libel suit against Bulldog dismissed, Austin Monitor January 8, 2015

Judge dismisses defamation lawsuit, orders Don Zimmerman to pay up, Austin American-Statesman January 7, 2015

Zimmerman Suit Not Yet “Bygone”: Judge will hear motion that could mean sanctions, The Austin Chronicle December 26, 2014

Zimmerman drops lawsuit, but case goes forward, Austin Monitor December 19, 2014

Zimmerman v. Bulldog case going to court today, December 18, 2014

Zimmerman’s Latest Lawsuit: Is D6 candidate trying to silence coverage of custody case? The Austin Chronicle December 12, 2014

After years of fighting government, Don Zimmerman angles to join it, Austin American-Statesman November 25, 2014

Zimmerman threatens lawsuit over abuse stories, Austin Monitor October 15, 2014

 

 

Comments   

 
0 #1 Dylan Tynan 2015-09-09 18:54
The city's response filing can be downloaded at https://assets.documentcloud.org/documents/2347832/city-of-austins-response-to-preliminary-injunction.pdf

I'm currently on page 17. So far, the city makes a good case, though I think the standing arguments aren't going to hold. In my non-attorney opinion, Zimmerman's filing makes a number of facial challenges on first amendment grounds, which I believe gets a much more lenient definition of standing -- he can include others (like other candidates & donors) even if they haven't suffered direct harm (see overbreadth and chilling effect concepts).

From what I've read, the city is going to have to get much closer to proving why a restriction on speech prevents quid pro quo corruption (or appearance of), rather than just asserting that it does. I still don't see how that's really possible, but we'll see.

On the blackout period, the city makes a good argument. The weakness I see there is that for the 6 months prior to the election, Council officeholders accept contributions & some of those may come from donors who have business before Council. That happens. That is also the defense the city is using for the 6 month limitation. One could argue that donations PRIOR to the 6 month window are actually less susceptible to quid pro quo corruption or the appearance thereof, because citizens will have longer to scrutinize donations prior to the election. In other words, if I donate $350 a year before the election, then everyone has months to review it on a campaign finance report. But if I donate 3 weeks before an election, then it will only be visible for a few days. Thus, the blackout restricts speech (donations) that is less associated with corruption then the speech it doesn't restrict. Confusing, yes, but I think it's a valid point.

Of course, given the Supreme Court's willingness to overlook and/or overturn decades of precedence in campaign finance rules, it's difficult to say how any of this shakes out, regardless of argument.

ps - there's a typo on p17 - should be "present" not "prevent", 2nd to last paragraph.
 
 
0 #2 Aaron 2015-11-17 14:39
Houston's blackout period got tossed, so I would expect the same will happen here. Council Members are put at a structural disadvantage since PACs and non-profits can fund raise continually and then spend whatever they want to affect elections. Additionally winners can't fund raise to pay off their debt while losers can. I expect most of it to get tossed by the court, there are just too many inconsistencies and absurdities in the existing ordinance.
 

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