Texas Cases March 02, 2021: In re Durnin

Case Description

Max Renea Hicks, Anne L. Morgan, Austin, Meghan L. Riley, for Real Party in Interest Austin City Council, Austin City Council.

Joseph Abraham, Austin, Amicus Curiae, for Amicus Curiae The National Homelessness Law Center.

Donna Garcia Davidson, Bill Aleshire, Austin, for Relator Lovins, Michael, Durnin, Linda, Krohn, Eric.

Justice Blacklock delivered the opinion of the Court, in which Chief Justice Hecht, Justice Guzman, Justice Lehrmann, Justice Bland, and Justice Huddle joined.

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Voters in the City of Austin will soon decide whether to adopt a citizen-initiated ordinance regarding camping in public spaces, sitting and lying down on public sidewalks, and the aggressive solicitation of money. The Austin City Council recently approved a description of the proposed ordinance for placement on the ballot. In response, several voters who signed the petition supporting the ordinance brought this mandamus proceeding seeking changes to the Council's ballot language.

We conclude the relators 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. As explained below, the petition for writ of mandamus is conditionally granted in part, and the City Council is directed to delete both uses of the word "anyone" from the proposition before placing it on the ballot.

I. Background

Relators Linda Durnin, Eric Krohn, and Michael Lovins, along with many others, signed a petition seeking a voter-initiated city ordinance regarding camping, sitting or lying down on public sidewalks, sleeping outdoors, and the aggressive solicitation of money. The ordinance would amend sections 9-4-11, 9-4-13, and 9-4-14 of the City Code. The petition was submitted to the Austin City Clerk on January 19, 2021, who certified it for a vote at the City's May 1, 2021 election. The City Council was then put to a choice of agreeing to the proposed ordinance or submitting it to the voters. AUSTIN CHARTER art. iv, § 4. The City Council decided to submit the ordinance to the voters. On February 9, the Council approved the following language for use on the May ballot:

Shall an ordinance be adopted that would create a criminal offense and a

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penalty for anyone 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 anyone camping in a public area not designated by the Parks and Recreation Department?

Upon approval of this ballot language, relators on February 16 simultaneously sought mandamus relief in the Third Court of Appeals and the Supreme Court. They lodge three primary objections to the ballot language. First, they argue that it violates the Austin City Charter, which they contend requires the ballot language to come from the ordinance's caption provided by the petition's proponents. Second, they argue the ballot language is misleading because it over-emphasizes the ordinance's criminal aspects. Third, they argue the ballot language's use of the word "anyone" is misleading because the ordinance contains several exceptions and therefore does not penalize "anyone" who engages in the listed activities.

The court of appeals denied relief without opinion. The City filed a response to the mandamus petition in this Court, which we have considered along with the parties' court of appeals filings.

II. Discussion

This Court has jurisdiction to "issue a writ of mandamus to compel the performance of any duty imposed by law in connection with the holding of an election." TEX. ELEC. CODE § 273.061. As always, mandamus relief is appropriate if the relator establishes a clear abuse of discretion for which there is no adequate appellate remedy. In re AutoNation, Inc. , 228 S.W.3d 663, 667 (Tex. 2007) (orig. proceeding). Signers of an initiative petition have standing to seek mandamus relief against their city council if they can establish the elements for such relief. In re Williams , 470 S.W.3d 819, 822 (Tex. 2015) (orig. proceeding) (per curiam). If a ballot can be corrected prior to the election, a post-election contest is an inadequate remedy for mandamus purposes. Id. at 823.

The City of Austin's charter provides a mechanism by which voters may amend the city's ordinances. Voters may submit a signed petition to the City Council proposing a new ordinance. AUSTIN CHARTER art. iv, § 1. After the City Clerk certifies that the petition contains at least the minimum required number of signatures, the Council must either adopt the proposed ordinance itself or order an election whereby the voters decide whether to adopt the ordinance. Id. § 4. In this case, 20,000 signatures were required. Id. § 1; TEX. LOC. GOV'T CODE § 9.004(a).

Under the Election Code, a "measure" is "a question or proposal submitted in an election for an expression of the voters' will." TEX. ELEC. CODE § 1.005(12). Here, the measure is the proposed amendment to the City Code submitted by voters via their petition. A "proposition" is "the wording appearing on a ballot to identify the measure." Id. § 1.005(15). The Election Code grants the City Council, as "the authority ordering the election," the responsibility to "prescribe the wording of a proposition" unless "otherwise provided by law." Id. § 52.072(a); see also Dacus , 466 S.W.3d at 823.

The relators contend that the Austin City Charter removes the Council's statutory authority to select ballot proposition language. The charter provides: "The ballot used in voting upon an initiated or

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referred ordinance shall state the caption of the ordinance and below the caption shall set forth on separate lines the words, ‘For the Ordinance’ and ‘Against the Ordinance.’ " AUSTIN CHARTER art. iv, § 5. The City disagrees about the charter's effect on the Council's authority. Without resolving the merits of this dispute, we conclude that in this expedited proceeding the relators have not made the clear showing required for emergency mandamus relief on this issue.

Relators also contend the Council's ballot language violates the common-law standards governing the accuracy of ballot propositions, which this Court most recently articulated in Dacus v. Parker , 466 S.W.3d 820 (Tex. 2015). In Dacus , we held that ballot propositions must "be submitted [to the voters] with such definiteness and certainty that voters are not misled." Id. at 822. Although "the ballot need not reproduce the text of the amendment or mention every detail, it must substantially identify the amendment's purpose, character, and chief features." Id. A ballot proposition may mislead the voters "in either of two ways. First, it may affirmatively misrepresent the measure's character and purpose or its chief features. Second, it may mislead the voters by omitting certain chief features that reflect its character and purpose." Id. at 826.

In Dacus , the proposed amendment to the City of Houston Charter created a fund for drainage and streets. The source of the funding was to come in part from charges imposed on property owners. This Court held that the ballot language violated the common-law standard because it described the new fund but did not disclose that property owners would be subjected to new charges. Id. at 824, 826. We concluded that omitting any mention of the new charges amounted to a failure to disclose "a chief feature" of the measure, thus rendering the proposition misleading to the voters. Id. at 828. Despite ordering changes to the proposition, Dacus emphasized that "municipalities generally have broad discretion in wording propositions." Id. at 826. Ballot language "must capture the measure's essence," but "neither the entire measure nor its every detail need be on the ballot." Id. at 825.

Relators make two separate challenges to the Council's ballot language under the common-law standard. First, they argue the ballot language is misleading because it places undue emphasis on the extent to which the proposed ordinance creates criminal offenses and penalties. Relators do not deny, however, that the ordinance adds to the crimes and penalties currently contained in the City Code. Relators contend the ballot language should emphasize other features of the ordinance, but the Council generally has "broad discretion in wording propositions." Id. at 826. The proposition correctly states that the ordinance creates criminal offenses and penalties. Relators would prefer that this aspect of the ordinance appear less prominently in the proposition, but it is not the courts' job to micromanage the sentence structure of ballot propositions. Our job is to ensure voters are not misled by inaccuracies or material omissions in the proposition while preserving the governing body's discretion to select ballot language.

We agree with relators, however, that the Council's proposition is inaccurate and misleading in one important respect. The proposition states that the ordinance creates a criminal offense and a penalty "for anyone sitting or lying down on a public sidewalk" in the downtown or UT-Austin area. Although the ordinance does criminalize some instances of sitting or lying down on a sidewalk, by using the word "anyone," the proposition gives the impression that the ordinance criminalizes

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all instances of sitting or lying down on a sidewalk. That is not true.

The proposed ordinance creates an offense under subsection E of section 9-4-14 of the Code if a person sits or lies down in certain designated areas, but subsection F simultaneously creates six exceptions. Excepted from the ordinance's criminal penalties is anyone who "sits or lies down because of a medical emergency"; "operates or patronizes a commercial establishment that conducts business on the sidewalk"; "participates in or views a parade, festival, performance, rally, demonstration, or similar event"; sits on a chair or bench supplied by an agency or abutting private property owner; sits at a bus stop; or waits in line for goods, services, or a public event. These exceptions include a wide array of familiar uses of sidewalks that will not be criminalized under the proposed ordinance. Further, even a person whose use of the sidewalk does not fall under an exception commits the offense only if the person does so "after having been notified by a law enforcement officer that the conduct" is illegal. Still further, a person has an affirmative defense if he sits or lies down because of a disability.

By failing to mention these exceptions and instead stating that the ordinance penalizes anyone who sits or lies down on the sidewalk, the 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 misrepresent[s] the measure's character and purpose or its chief features." Dacus , 466 S.W.3d at 826. 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.

Similarly, the proposition states that the ordinance creates criminal liability "for anyone camping in any public area not designated by the Parks and Recreation Department." Again, the use of the word "anyone" is misleadingly broad. The proposed ordinance reimposes a previous city ban on camping under section 9-4-11 of the Code, but that section retains a significant exception. The exception prohibits a law enforcement officer from citing a person for illegal camping before making a reasonable effort to "(1) advise the person of a lawful alternative place to camp; (2) advise the person, to the best of the law enforcement officer's knowledge, of available shelter or housing; and (3) contact, if reasonable and appropriate, a city designee who has the authority to offer to transport the person or provide the person with services." Thus, not "anyone" who camps in a public area not expressly designated for camping is subject to a penalty. The City Council must omit the second use of the word "anyone" from the proposition to avoid misleading the voters.

The City argues that the proposition's use of "anyone" is accurate because, despite the ordinance's many exceptions, anyone who sits or lies down on a sidewalk or impermissibly camps "remains criminally exposed" and "[i]t would be up to those charged to invoke the exception." We are not convinced. Subsection F states that the prohibition on sitting or lying down on the sidewalk "does not apply" in the six circumstances provided. Unlike subsection G, which expressly recognizes "an affirmative defense" for a person with a disability, subsection F does not suggest that it would be up to those charged to invoke its exceptions. In any event, whether or not the ordinance's many exceptions are characterized as affirmative defenses as a matter of criminal procedure, it is not accurate to say the "character and purpose" of the proposed ordinance is to penalize conduct

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that falls within an exception. Quite the opposite. The "character and purpose" of the ordinance is to criminalize prohibited conduct that does not fall under an exception and to avoid criminalizing conduct that does fall under an exception. The proposition's use, in both instances, of the word "anyone" serves no constructive purpose and creates a false impression that the proposed ordinance sweeps more broadly than it truly does. Including the word "anyone" as directed by the Council results in a proposition that fails to "capture the measure's essence." Dacus , 466 S.W.3d at 825. The word must be deleted, in both instances, so that the proposition does not impermissibly mislead voters.

III. Conclusion

For the foregoing reasons, and without hearing oral argument, see TEX. R. APP. P. 52.8(c), we conditionally grant mandamus relief directing the City Council to delete from the ballot proposition both uses of the word "anyone." We are confident the City Council will comply, and the writ will issue only if it does not.

Justice Boyd filed a dissenting opinion, in which Justice Devine and Justice Busby joined.

Justice Boyd, joined by Justice Devine and Justice Busby, dissenting.

Relators have filed an emergency petition for writ of mandamus challenging proposition language for a voter-initiated city ordinance that the City of Austin plans to place on the ballot for an upcoming election. Relators argue that (1) the city's charter divests the city council of any authority to select the language placed on a ballot for a voter-initiated ordinance and instead requires the council to use the ordinance's caption as set forth in the voters' petition, and (2) even if the city council had authority to select the ballot language, the city council's proposed language impermissibly misleads voters in various ways, in violation of common-law prohibitions.

"Without resolving the merits of" the relators' first argument, the Court nevertheless concludes that they have not "made the clear showing required for emergency mandamus relief on this issue." Ante at 253. I conclude the city charter makes the required "clear showing" for them. Although I agree that the city council's language is misleading for the reasons the Court explains, I would not reach that issue and instead would grant relief requiring the city council to place the voter-initiated language on the ballot, instead of the language the council proposes. Because the Court does not, I respectfully dissent.

I.

Background

"The people of the city" of Austin have expressly reserved for themselves the "power of direct legislation by initiative," under which the people may submit voter-initiated ordinances to the city clerk by a petition signed by a sufficient number of qualified voters. Austin Charter art. IV, § 1. Under the circumstances of this case, state law required at least 20,000 signatures. See TEX. LOC. GOV'T CODE § 9.004(a). Upon the clerk's certification that the petition is compliant and signed by at least 20,000 qualified voters, the city council must either pass and adopt the voter-initiated ordinance exactly as submitted or submit it to all of the city's voters for

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rejection or approval. Austin Charter art. IV, § 4.

On February 3, 2021, the city clerk certified that a petition entitled "Petition to Save Austin Now by Restoring Safety and Sanity to Our City Streets" met the requirements to appear on the ballot at a May 1, 2021 special election. The petition, which included the signatures of more than 26,000 qualified voters, began with the following caption:

We, the undersigned registered voters of the City of Austin, petition the adoption of the following citizen-initiated ordinance:

A PETITIONED ORDINANCE AMENDING CITY CODE SECTION 9-4-11 RELATING TO PROHIBITING CAMPING IN PUBLIC AREAS, SECTION 9-4-13 RELATING TO PROHIBITING SOLICITATION, AND SECTION 9-4-14 RELATING TO PROHIBITING SITTING OR LYING DOWN ON PUBLIC SIDEWALKS OR SLEEPING OUTDOORS IN THE DOWNTOWN AUSTIN COMMUNITY COURT AREA; AND CREATING OFFENSES.

Following this caption, the petition proposed repealing and replacing part of section 9-4-11 and all of sections 9-4-13 and 9-4-14 of the current Austin City Code.

On February 8, 2021, the city attorney submitted a memo to the city council stating that it "is the responsibility of Council to determine" the language that will appear on the ballot, and proposing two "ballot language options" for the voter-initiated ordinance:

Option 1

"Shall an ordinance be adopted that creates a criminal offense and a penalty to camp in public areas without a permit; solicit aggressively, or solicit in specified areas, or solicit during certain times in all public areas; or to sit, lie, or sleep outdoors in certain public areas even if not obstructing the right-of-way?"

Option 2

"Shall an ordinance be adopted that would create a criminal offense and a penalty for anyone 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 anyone camping in any public area not designated by the Parks and Recreation Department?"

The city council approved the language of Option 2.

Relators filed petitions for writ of mandamus simultaneously in this Court and the court of appeals, arguing that (1) the city charter requires the city council to use the caption contained within the voters' petition as the language on the ballot, and (2) alternatively, the city council's approved

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ballot language is misleading and violates common-law requirements.

II.

Voter-Initiated Ordinances

A "measure" is "a question or proposal submitted in an election for an expression of the voters' will." TEX. ELEC. CODE § 1.005(12). Voters record their votes in an election through an "official ballot." Id. § 52.001(a). The ballot need not recite the wording of the measure. Dacus v. Parker , 466 S.W.3d 820, 825 (Tex. 2015). Instead, the ballot must contain a "proposition" for the measure, which is "the wording appearing on a ballot to identify a measure." TEX. ELEC. CODE § 1.005(15).

"Except as otherwise provided by law, the authority ordering [an] election shall prescribe the wording of a proposition that is to appear on the ballot." Id. § 52.072(a). In this case, the city council is the authority ordering the election. The council therefore has the power to prescribe the wording of the proposition identifying the proposed ordinance, "[e]xcept as otherwise provided by law." Id. Relators assert, and the city agrees, that the city charter is "law" that may provide otherwise. See id. § 1.005(10) (" ‘Law’ means a constitution, statute, city charter , or city ordinance.") (emphasis added).

Austin's city charter states: "The ballot used in voting upon an initiated or referred ordinance shall state the caption of the ordinance and below the caption shall set forth on separate lines the words, ‘For the Ordinance’ and ‘Against the Ordinance.’ " Austin Charter art. IV, § 5 (emphasis added). The "caption" of an ordinance is an introductory statement that gives notice of the ordinance's purpose. Sw. Bell Tel. Co. v. Hous. Indep. Sch. Dist. , 397 S.W.2d 419, 421–22 (Tex. 1965). The Election Code never uses or mentions any form of the word "caption." But by requiring the ballot to state "the caption of the ordinance" and to call for votes "for" or "against" the ordinance, Austin Charter art. IV, § 5, the city charter requires the "caption of the ordinance" to serve as the "proposition"—that is, the wording on the ballot that identifies the measure—for initiated or referred ordinances.

The city charter thus requires that when a sufficient number of qualified voters join together to initiate an ordinance, and the city council elects to submit the voter-initiated ordinance to a vote of the people rather than pass the ordinance itself, the ballot submitted to the people must "state the caption of the ordinance." Austin Charter, art. IV, § 5 (emphases added). The definitive article "the" refers to a particular, identifiable item. See The , MERRIAM WEBSTER'S COLLEGIATE DICTIONARY (10th ed. 1996) 1221 ("used as a function word to indicate that a following noun ... is definite or has been previously specified by context [or] is a unique or particular member of its class"); The, DICTIONARY.COM , https://www.dictionary.com/browse/the?s=t (last visited Mar. 1, 2021) ("used, especially before a noun, with a specifying or particularizing effect, as opposed to the indefinite or generalizing force of the indefinite article a or an "). In the city charter, the phrase " the ordinance" refers to the "initiated or referred ordinance" specified in the same sentence: "The ballot used in voting upon an initiated or referred ordinance shall state the caption of the ordinance ..." Austin Charter art. IV, § 5 (emphases added). And the phrase " the caption" refers to the caption of that ordinance.

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The only caption and the only ordinance to which the charter's requirement can possibly refer are the caption and the ordinance stated within the petition. The charter does not say that the council shall "draft a proposition" or "prepare a caption" to be used on the ballot, and no other relevant caption or ordinance exists. By referring to "the caption," as opposed to "the proposition," the charter necessarily refers to the introductory statement that describes the ordinance's purpose, and it requires the city to use that caption as the ballot proposition. The sentence cannot mean anything other than that the ballot must use "the caption" provided with "the ordinance" in the voters' petition.

Here, the initiated ordinance signed by over 26,000 eligible voters provided "the caption" the city charter requires the ballot to state:

A PETITIONED ORDINANCE AMENDING CITY CODE SECTION 9-4-11 RELATING TO PROHIBITING CAMPING IN PUBLIC AREAS, SECTION 9-4-13 RELATING TO PROHIBITING SOLICITATION, AND SECTION 9-4-14 RELATING TO PROHIBITING SITTING OR LYING DOWN ON PUBLIC SIDEWALKS OR SLEEPING OUTDOORS IN THE DOWNTOWN AUSTIN COMMUNITY COURT AREA; AND CREATING OFFENSES.

The city council had no discretion to create its own proposition or even its own caption when the law—in the form of the city's own charter—requires it to use the caption of the initiated ordinance, as provided in the certified petition.

The city argues that requiring the ballot to contain the caption submitted in a petition would make the city council "the captive of petition circulators, no matter how misleading or pernicious the language of the caption of their petition." The city does not contend that the caption at issue in this case is "misleading or pernicious," but fears that captions submitted in future petitions could be. But the city's own charter resolves that concern by expressly providing that voters may only initiate ordinances that are "not in conflict with this Charter, the state constitution, or the state laws." Austin Charter art. IV, § 1. Such "state laws" require that a ballot proposition must "identify the measure by its chief features, showing its character and purpose," and must do so "with such definiteness and certainty that the voters are not misled." Dacus , 466 S.W.3d at 825, 830. These legal requirements apply to all ballot propositions, regardless of who drafts or proposes it. So if a certified petition were to include a caption that is "misleading or pernicious," the petition would conflict with state laws, and the city charter would deprive the voters of the authority to initiate the proposed ordinance.

III.

Conclusion

Based on the plain language of the City of Austin's charter, I would grant relators relief by requiring the city to state the caption contained in the voters' certified petition as the proposition on the ballot. Because the Court does not, I respectfully dissent.