in Re Linda Durnin, Eric Krohn, & Michael Lovins

• Court: Texas Supreme Court
• Decided: March 2, 2021
• Docket: 21-0170
• Status: Published

Opinion

IN THE SUPREME COURT OF TEXAS ══════════ No. 21-0170 ══════════

IN RE LINDA DURNIN, ERIC KROHN, AND MICHAEL LOVINS, RELATORS ══════════════════════════════════════════ ON PETITION FOR WRIT OF MANDAMUS ══════════════════════════════════════════

JUSTICE BLACKLOCK delivered the opinion of the Court, in which CHIEF JUSTICE HECHT, JUSTICE GUZMAN, JUSTICE LEHRMANN, JUSTICE BLAND, and JUSTICE HUDDLE joined.

JUSTICE BOYD filed a dissenting opinion, in which JUSTICE DEVINE and JUSTICE BUSBY joined.

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

2 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 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

3 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 referred ordinance shall state the caption of the ordinance and below the caption shall

4 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

5 826. 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 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

6 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

7 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 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

8 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.

__________________________________ James D. Blacklock Justice

OPINION DELIVERED: March 2, 2021