The news is out,
All over town. . .
What can I do?
You win again.
Hank Williams, You Win Again; or maybe Mayor Kirk Watson to Bill Bunch and Bill Aleshire after the City’s latest loss in court
Yes, the Bills — Bunch and Aleshire — have once again teamed up to defeat Mayor Kirk Watson and the Austin City Council in court. Bunch and Aleshire were joined in this particular lawsuit by another legendary Austin figure, attorney and longtime environmentalist Joe Riddell. Riddell was co-plaintiff with Bunch in the suit.
Just like the suit Bunch won a few months ago, this one was about the Mayor and Council failing to comply with the Texas Open Meetings Act (TOMA). The result is that 13 proposed City Charter amendments that the majority of the Council wanted on the November ballot will not be there. This is a consequential defeat. It’s not something that the Council can immediately fix by calling a meeting and taking the same action in a legal way. They will have to wait until a new election date to hold a Charter amendment election. (Under state law, elections can be held on either the first Saturday in May or the first Tuesday after the first Monday in November.)
Additionally, the Council may have hoisted themselves on their own petard with one of their proposed amendments. As we will explore further in Part 2, one of their proposed Charter amendments would require all elections resulting from citizen initiative petitions to be held in November of even numbered years, regardless of whether those petitions are turned in during an even or odd numbered year. An argument could thus be made that the Council should go by the rules they want to establish for citizens, and wait until 2026 to put their own proposals on the ballot.
The City Charter, by the way, is the governing document of the City, the City’s equivalent to the United States Constitution.
The absence of the Charter amendments from the November ballot is more of a loss for the Council Members than for the citizenry. What I mean is that several of the proposed amendments would, if approved, increase the powers and authority of Austin City Council Members. A corollary is that the powers of citizens, especially groups of citizens, would be lessened. At the same time other proposed amendments would simply make the gilded perches of the Mayor and Council Members a little bit more secure, like increasing the number of signatures required to force a recall election. The Council majority is proposing to do that even though (according to the City Clerk’s Office) no Austin Mayor or Council Member has ever been forced into a recall election, ever.
The substance of the proposed amendments hasn’t gotten much attention because the media focus has understandably been on the City losing still another lawsuit. We will do a rundown of all the proposed Charter amendments, but that will have to wait until the soon to follow Part 2.
In this installment we will examine the City’s latest loss in court. Let’s begin with a quick review of the City’s legal won-loss record in recent years. The losses began when the Council was led by then Mayor Steve Adler or — depending on how realistically one wants to look at it — when the Council was run by then Council Member, now Congressman, Greg Casar. Surprisingly, at least to me, current Mayor Kirk Watson appears to have picked up where Casar and Adler left off. In fact Watson has lost more lawsuits early in his term than Adler did.
The list of losses is too long for a thorough review here. For that see this previous article. In short, Bunch won a court ruling against Watson and the City in a dispute earlier this summer over the Open Meetings Act. Aleshire won a series of suits against the Councils on which Steve Adler was Mayor. One of those was the suit against the Tax Increment Reinvestment Zone (TIRZ) at 305 South Congress PUD (Planned Unit Development), at the old site of the Austin American-Statesman; lakefront property near Congress and Riverside. Bunch and Aleshire teamed up on that one as well. Several other attorneys won major victories against the City in the Casar-Adler years as well.
Bill Aleshire speaks to the press at a June 2024 hearing on a different case – Screenshot from video by Daryl Slusher – Photo of City Hall at top is from City website
Alluding to that history, Aleshire began the latest lawsuit with this line, ‘“Chalk this case up to the category, ‘Some People Just Never Learn.”’ Aleshire also called the new suit a “sequel” to the Open Meetings Act lawsuit that Bunch won against the City earlier this summer.
Aleshire began the latest lawsuit with this line, ‘“Chalk this case up to the category, ‘Some People Just Never Learn.”’
In a statement accompanying the filing, Aleshire added, “The Austin City Council is becoming lawless, and this lawsuit is another example of their arrogant disdain for transparency. Mayor Watson and the Council majority are undermining democracy with violations of the Texas Open Meetings Act.”
Referring again to the immediately previous lawsuit, Aleshire argued in his filing, “the Watson Council’s latest tactic is to lump 13 individual and legally distinct Charter Amendments into a single-numbered agenda item.” Aleshire maintained that this approach “violates the same TOMA right-to-speak provision” as the earlier case that the City lost.
Attorney and longtime Austin environmentalist Joe Riddell, a plaintiff in the suit that knocked the proposed City Charter amendments off the November ballot — photo courtesy of Joe Riddell
The other major prong of the suit concerned inadequate posting of the meeting. The City titled the agenda “Budget Adoption Reading of the Austin City Council” even though the same agenda also included the setting of the ballot.
The ballot setting was also listed for “emergency” passage, although that did not figure into the Judge’s order.
Judge Maya Guerra Gamble ruled that allowing the charter election to go forward would mean doing so “without Defendants having strictly complied with the Texas Open Meetings Act.” Guerra Gamble added that she specifically meant violation of two parts of TOMA:
- the section headed “NOTICE OF MEETING REQUIRED [all caps as in the statute]
- and the section which requires a governmental body “to allow for public testimony on such agenda items of special interest to the public and to provide sufficient notice of the subjects of any meetings pertaining thereto.”
After Guerra Gamble’s ruling, the City decided not to appeal or make any other attempt to get the items legally on the ballot.
An added humiliation for the City is that Bunch warned the City in July that another suit was coming; and told them how to prevent it. That happened at a July 18 public hearing where the Council let citizens speak about the proposed Charter amendments. Speakers were required, however, to limit their remarks to three minutes for all the proposed amendments combined, regardless of how many they wanted to comment on. Bunch began his remarks on July 18 by raising a “point of order” that citizens should be allowed to comment on each Charter item individually, in two or three minute segments, rather than having all the proposed amendments lumped into one speech. Watson denied that point of order.
At the end of his remarks, Watson told Bunch his time was up. Bunch replied, “All right. I have to see you in the court again. Thank
you.”
In other words the legendary plaintiffs attorney Watson is not only losing to Bunch and Aleshire in court, he is also making Bunch look like Clint Eastwood in Dirty Harry. “Go ahead. Make my day.”
*** As noted in the opening quote from a Hank Williams song, “the news” about the latest Mayor and Council legal loss is “out all over town.” That included a thoughtful September 2 column in the Austin American-Statesman by Bridget Grumet.
Grumet began by sympathizing with the dilemma faced by Judge Guerra Gamble. Grumet described that dilemma like this, “One way or another, it seemed, the public would lose.”
“Should the court block those items from going on the ballot — even though elections are the ultimate moment for people to be heard — because the public wasn’t properly notified about the meeting where the ballot was finalized?
Or should the court tolerate a clear violation of the Texas Open Meetings Act — the essential law that allows people ‘to be in the room where it happens,’ as plaintiffs’ attorney Bill Aleshire put it — because the action in question put issues into the hands of voters?”
Grumet also acknowledged that Bunch, Aleshire and Riddell doubtlessly “elicited some here we go again eyerolls from those who see these activists as obstructionists.”
She concluded, “The issues they raise are not obscure technicalities. They go to the heart of whether the public can participate in the business being done in their community with their tax dollars. I would love to see City Council meetings handled in a way that leaves Aleshire and Bunch with no credible grounds for a lawsuit.” Amen
_________________
Folks: Local, independent journalism is very poorly funded. That is definitely the case with The Austin Independent. So please consider subscribing and/or donating. Click here. Funds we receive will be used primarily to try to increase our readership base.
To receive notification when the Austin Independent posts stories, to subscribe, or to write to the editor please send us an email under Contact on the home page,or click here.
The Austin Independent, a publication of The Austin Independent, LLC
All Rights Reserved
____________________