Attorneys Argue CodeNEXT Petition
CodeNEXT petition backers seek court order to force
City of Austin to put petition on November 6 ballot
By Ken Martin
© The Austin Bulldog 2018
Posted Monday July 2, 2018 7:51pm
Judge Orlinda NaranjoWhether the City of Austin must put the CodeNEXT petition on the November 6 ballot is still up in the air. After a hearing in which attorneys argued for nearly three hours, District Judge Orlinda Naranjo said she would take the matter under advisement and issue a decision as soon as possible.
Before the hearing the parties filed a combined 148 pages of legal arguments as to why the CodeNEXT petition should or should not be placed on the November 6 ballot. (These documents are linked at the bottom of this story. Cause No. D-1-GN-18-002688)
Fred LewisBill BunchThe petitioners, represented by Austin attorneys Fred Lewis and Bill Bunch, emphasized that the City Charter gives the City Council only two options after the City Clerk validates an initiative petition: either adopt the petition as-is, or place it on the ballot.
Instead, at two separate meetings, the City Council voted 6-4 not to adopt the petition ordinance and, by the same margin, voted not to place the matter on the ballot. In doing so, the City Council relied upon legal advice from Bickerstaff Heath Acosta and Delgado. That advice cites cases in which courts have ruled that zoning may not be subjected to an initiative petition.
The City Council’s rejection prompted the filing of a request for a writ of mandamus. In effect, the writ seeks a court order to put CodeNEXT petition ordinance on the ballot. For the purposes of the writ of mandamus, in legal terms the petitioners are called “relators,” the people who are beneficially interested and on whose behalf the writ was sought.
Lewis and Bunch claimed the cases cited in Bickerstaff Health’s advice to the City are not applicable because they involved zoning for specific tracts of land and the CodeNEXT petition does not do that. Instead, if voters approve the petition ordinance, it would provide for adopting a general zoning ordinance involving a waiting period and subsequent voter approval before CodeNEXT or any other comprehensive land development code could go into effect.
Jane WebreCasey DobsonTo defend the City and convince the judge to reject the writ of mandamus, the City of Austin hired attorneys from the law firm Scott Douglass & McConnico LLP. The case was argued this morning solely by attorney and partner Jane Webre. Her fellow attorney and also a firm partner, Casey Dobson, sat at the same table but did not address the court.
Arguments for the relators
Lewis and Bunch presented their case first.
Lewis drafted the CodeNEXT petition and had it reviewed by several other attorneys before unveiling at an IndyAustin meeting last September, as reported by The Austin Bulldog September 12, 2017. He was in court this morning to push it onto the ballot.
Lewis told the court the petition initiative is a “government accountability ordinance—not a zoning ordinance.”
Whether the petition ordinance is a zoning ordinance is a key issue because if it is, the City contends that it “has been withdrawn” from the field of matters for which an initiative is permissible.
Lewis said the City is asking for an “impermissible advisory opinion from the court” that “interferes with the constitutional right of people, to prevent people from voting.”
By definition, he said, city council’s do not like initiative and referendum petitions because they involve things the council has not enacted or opposes. “But they are in Austin’s Charter,” he added. “Initiative and referendum are the law.”
“Tens of thousands of Austin citizens are concerned with CodeNEXT because it will displace poor people and destroy their community,” Lewis said. “They have a right to try to control their destiny. This case is not about CodeNEXT—it’s about democracy.”
Lewis argued that the people’s power of initiative must be “liberally construed” and there must be “clear and compelling grounds” to find that the subject of an initiative petition is impermissible.
Lewis cited a news article in which Mayor Steve Adler stated that only about 10 percent of CodeNEXT involves zoning. Lewis said the statutes barring initiatives involving zoning pertain only to specific zoning cases and not a completely new code.
Bunch said that attempts to overturn a city’s zoning of a specific tract of land must be appealed in a court of law, not through the initiative process.
As for the argument that CodeNEXT is too complicated to be put before voters, Bunch cited the Texas Supreme Court’s decision involving the Save Our Springs Ordinance: “no topic is too complicated to be adopted by voters.” For the courts to rule otherwise, he said, “would be a slippery slope for judicial standards.”
Bunch ended his argument by saying, “The court should insist the City put the petition initiative on the ballot because the City cannot show, much less clearly and compellingly,” why it should not.
Arguments for the City
Attorney Webre said that zoning involves almost 45 percent of CodeNEXT and, further, that the “tentacles of zoning are pervasive throughout” the entire document.
She said that the latest version of CodeNEXT, Draft 3, consists of 1,565 pages, of which 695 pages pertain to zoning.
Of the CodeNEXT petition, Webre said, “It’s not right to challenge something that does not exist,” referring to the fact that CodeNEXT, while under consideration, has not been adopted by the City Council.
Webre said the CodeNEXT petition ordinance is in fact not an initiative but a referendum on CodeNEXT under City Charter Article IV Section 2. “This walks like a duck and quacks like a duck—it’s a referendum,” she said. (An initiative enacts; a referendum repeals.)
Webre argued that there are two rules for withdrawing a topic from the initiative process: (1) authority has been given to a particular body or (2) there are mandatory procedures that cannot be decided in an election. She said that zoning “had been withdrawn categorically from the field and not just for specific cases.”
Austin may zone only within the parameters of Local Government Code Chapter 211, Webre said. It cannot zone in violation of Chapter 211.
She agreed with Bunch that complexity is not a reason to withdraw a topic from initiative, but “complexity of zoning is why it is regulated by state law.”
“It’s not appropriate to just put the CodeNEXT petition ordinance on the ballot and let the people decide,” Webre said. “If it’s withdrawn from the field, “it doesn’t belong on the ballot.”
Webre spent a fair amount of her opening argument outlining theoretical scenarios about what might happen if the CodeNEXT petition were put on the ballot and voters approved it, none of them good.
She closed her presentation by noting that the City has an August 20 deadline to place anything on the November 6 ballot.
Again noting the City can do anything not prohibited by state law, Lewis said that Chapter 211 is the base law but does it not include everything the city is allowed to do. For example, there are no density bonuses in Chapter 211, he said, but the city uses them. Further, there’s a state law on campaign finance, he said, but there’s no conflict if the City requires something additional.
Lewis said any prohibition against putting the petition on the ballot “has to be stated with unmistakable clarity.”
He cited a Houston case in which the city secretary refused to certify a petition because it conflicted with state law. In that case, the court ruled that voters could vote and then the court could decide the validity. “The court didn’t want to get involved in keeping people from voting,” Lewis said.
Noting that each version of CodeNEXT drafts are radically different, he said what will be in a final version is unknown.
“We don’t know what’s in CodeNEXT. We could speculate but that’s not what you do in a courtroom to interfere with the people’s right to legislate,” Lewis said.
Bunch said the next City Council has an opportunity to enact or amend CodeNEXT but it doesn’t have to do anything at all.
“A lot of people believe that CodeNEXT is the latest effort in decades of events that displaced people,” Bunch said. “We will get more density and it will be expensive.”
“Our hope is with this on the ballot we give the City Council incredible pressure to adopt a CodeNEXT that people will accept,” Bunch said.
Webre summed up the City’s position succinctly, saying, “Chapter 211 grants zoning authority to the city. The election itself would violate the law because the subject matter has been withdrawn. We urge the court to deny the request for a writ of mandamus.”
City Attorney letter hiring Bickerstaff Heath for legal advice on CodeNEXT petition validity (12 pages)
City Defendants' Trial Brief on the Merits, June 22, 2018 (89 pages)
Legal advice on CodeNEXT petition provided by Bickerstaff Heath, February 28, 2018
Relators' Original Verified Petition for Writ of Mandamus, June 1, 2018 (6 pages)
Relators' Trial Brief in Support of Their Petition for Writ of Mandamus, June 20, 2018 (34 pages)
Relators' Rebuttal Brief in Support of Their Petition for Writ of Mandamus, June 29, 2018 (19 pages)
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Related Bulldog coverage:
Petitioning ‘Problem’ a City Invention: Austin Library Department has no evidence of problems with signature gathering until CodeNEXT crackdown, June 25, 2018
Library Commission May Protect Petition Rights: But competing draft rules pushed by city staff would restrict signature gathering to designated spaces, May 21, 2018
Library Director Misled Library Commission: ‘Austin Monitor’ reported Roosevelt Weeks said petitioning banned by ‘majority of urban libraries,’ April 12, 2018
IndyAustin Nears Petition Goal: Plans to continue petitioning at city library facilities despite having been barred before, March 6, 2018
Library Commission Debates Petitioning Rights: Petitioners appeal for access to library properties, library director and attorney adamantly opposed, March 2, 2018
IndyAustin Petitioners Barred from Libraries: One IndyAustin petitioner issued a trespass notice to prohibit setting foot on Spicewood Library property, February 19, 2018
IndyAustin Pushing Three Petitions: Grassroots group organizing to get measures on the May 5, 2018 ballot, September 12, 2017
Ken Martin has been covering local government and politics in the Austin area since 1981. See more on Ken on the About page. Email
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