Fluoride Action Network

Clock ticking as San Marcos fights vote to ban fluoride in water supply

Source: Watchdog Arena | August 6th, 2015 | By Lou Ann Anderson
Location: United States, Texas

The countdown to an Aug. 24 ballot placement deadline is on as the city of San Marcos continues action to disqualify a citizen-led petition effort seeking a spot on the Nov. 3 election ballot. At issue is if voters will be allowed to weigh in on a proposed charter amendment to ban fluoride use in the city’s water supply. A recent Texas Supreme Court ruling against the city of Houston on its equal rights ordinance affirmed the importance of petitioners’ rights, but will other cities heed that call?

Water petition

Both the city and defendants in a city-filed lawsuit against petition organizers are looking for state Judicial District Court Judge Bruce Boyer to take the next steps in determining if voters will have opportunity for their voices to be heard on this issue.

On April 2, more than 2,000 signatures were submitted for an effort the city said required only 1,090. Sam Brannon, one of the petition organizers for Communities for Thriving Water Fluoride-Free San Marcos, says not once has the city disputed the validity of the signatures.

In early May, City Clerk Jamie Lee Pettijohn deemed the petition “invalid” because “none of the petition papers contains an oath or affirmation that each signature was the genuine signature of the person who signed it and that each signature was placed thereon in the presence of a person making such oath or affirmation.”

A May 18 letter sent by attorney Brad Rockwell reminded the city “There is no legitimate legal basis for any failure by the City Council to submit this charter amendment to the voters. There are many rights and precedents under the law protecting the right of your San Marcos citizens to have their fluoride measure on the ballot.”

With no response, a demand letter was sent on June 16 reminding Pettijohn of her the “nondiscretionary duty to certify the petition as containing sufficient number of signatures pursuant to Section 12.11 of the San Marcos City Charter, Texas Election Code sections 277.002, 277.0024 and Texas Local Government Code section 9.004(a)…”

It further stated how continued refusal “to comply with your duties and deprive the people of San Marcos the opportunity to vote on the question as to whether their public water supply should be fluoride-free will leave my client only with the unpleasant option of filing a lawsuit.”

On June 17, the city instead filed a taxpayer-funded lawsuit against the association known as Communities for Thriving Water Fluoride-Free San Marcos and its key organizers including Brannon.

At a Wednesday hearing, San Marcos City Attorney Michael Consentino contended how thousand-paged defendant filings submitted the day prior made arguing the case problematic. Defense lawyer Brad Rockwell responded that the filings, largely comprising city-provided documents and contracts, contained few new content pages.

While Consentino additionally argued having received no “proper” hearing notification from the court, he appeared to largely concur with defense counsel that awareness of the desire for today’s hearing was known to all involved.

Though the city attorney noted his belief the hearing was primarily to address scheduling, he used the procedure to also discuss how the petition submission was not accompanied by an ordinance calling for a special election.

The city has cited Section 6.03, a San Marcos City Charter section dealing with petition forms for initiatives, referendums and recalls, as one basis for its petition disqualification. The charter amendment petitions being neither in the form of an ordinance nor containing the affirmations as the section dictates were the specific city-cited grounds stated.

The defendants, on the other hand, argue Section 12.11, a separate city charter section entitled “Amending the Charter” is the appropriate and logical directive for a city charter amendment effort. This section defers to state law for specific requirements.

Section 277.002 of the Texas Election Code discusses petition signature validity making no mention of requirements for ordinance form or affirmations.

The city further claims petitioners violated two sub-sections – (d) and (e) – of Texas Local Government Code Section 9.004. The city appears to purport a violation of sub-section (d) that states a proposed amendment can contain no more than one subject. Sub-section (e) says “the ballot shall be prepared so that a voter may approve or disapprove any one or more amendments without having to approve or disapprove all of the amendments.”

Consentino additionally used the scheduling hearing to challenge the current district court assignment as incorrect being that, in his view, it has no jurisdiction to compel performance (of the city). He further expressed that any decision offering defendants the immediate relief sought had to come from a Court of Appeals or the Texas Supreme Court.

Boyer made no rulings at the hearing, but with apparent sensitivity to the Aug. 24 ballot placement deadline, scheduled a hearing for case arguments on Aug. 12.

“People need to understand that we started this effort to address what we consider a public health hazard – the injection of neurotoxins into our water supply,” Brannon said. “Now, the city has turned it into more of a voting rights case.”

Discussing the city’s dismissal of a measure widely supported by citizens and businesses, he said, “The message seems ‘not only do we not care, but we’re willing to sue to keep your voice from being heard.’”

While many issues remain unresolved, two are undeniable. The city of San Marcos is indeed willing to sue. And, it’s willing to sue at taxpayer expense.

This article was written by a contributor of Watchdog Arena, Franklin Center’s network of writers, bloggers, and citizen journalists.