Texas Supreme Court holds ordinance initiative ballot language is misleading because it did not account for exceptions

 

In Re: Linda Durnin, et. al, 21-0170 (Tex. March 2, 2021)

This is an original proceeding mandamus action where the Texas Supreme Court held petitioners were entitled to mandamus to make sure the City Council’s ballot language properly complied with the intent of the citizen-initiated petition to adopt an ordinance.

Petitioners brought an initiative petition requiring the City Council place on the ballot for the May 2021 election an ordinance regarding camping in public places (including sidewalks) and aggressive solicitation for money. The City Council called the election for the initiative.  When the Council approved the ballot language, it stated the ordinance creates a criminal offense and penalty for anyone sitting or lying down on a public sidewalk or sleeping outdoors.  Petitioners sued for mandamus asserting, among other things, that the ballot language inaccurately reflects the ordinance to be voted upon.

The Texas Supreme Court held the wording of the proposed ordinance does not apply to just anyone. The ordinance contains certain exceptions for common uses of the sidewalk. Thus, only a subset of those who engage in the covered behavior—not just anyone—can be penalized under the ordinance. In this regard, the word “anyone” in the Council’s ballot language threatens to “mislead the voters” by misrepresenting the measure’s character and purpose or its chief features. The court issued mandamus to strike the word “anyone” for two locations in the ballot. However, the Court disagreed with the Petitioners noting that they did not meet the burden necessary for an emergency mandamus action to hold the City Council lacked the ability to select the language. The proposition correctly states that the ordinance creates criminal offenses and penalties. The Court held “Relators would prefer that this aspect of the ordinance appear less prominently in the proposition, but it is not [the court’s] job to micromanage the sentence structure of ballot propositions. [It’s] job is to ensure voters are not misled…”  The only defect the Court believed needed adjusting was the word “anyone” as it does not account for exceptions.

The dissent agreed the language was misleading, but would not have reached that issue. It believed the Petitioners clearly established the charter prevents the City Council from deciding the ballot language.  Instead, the City should be required to cite the caption language contained in the proposed ordinance.

If you would like to read this opinion click here. Justice Blacklock delivered the opinion of the court. Justice Boyd dissented (found here)  and was joined by Justice Devine and Justice Busby.