City of San Marcos voters are closer to weighing in on a charter amendment seeking to ban the city’s fluoridation of its water supply. Despite the city’s apparent commitment to disqualify a petition effort seeking this change, state Judicial District Court Judge Bruce Boyer late Friday ordered the city to review the petition signatures and, if found in compliance, include the measure on the Nov. 3 election ballot.
In his ruling, Boyer noted “the Court also takes note of the principle that the citizens’ right to exercise their reserved legislative power should be liberally construed in favor of that power.”
Ruling for the petitioners on all points raised, the judge issued the following order:
“the Court will require the City of San Marcos, through its appropriate official, to review the submitted petition to ascertain if it contains the original signatures of the percentage of qualified voters required by Section 9.004 (a) of the Local Government Code. The Codes do not require or prescribe a particular form of verification or affirmation, only that the signatures not be copies or reproductions.
Boyer continued that if the petition qualifies, “the City of San Marcos shall be required to follow the ministerial duty of calling for an election on the issues.”
In this case of the city v. the people, timing has been key as an Aug. 24 ballot placement deadline loomed over the citizen-led petition effort. And as this taxpayer-funded court battle has ensued, a troubling theme has emerged on whether this pursuit is truly a case of maintaining election integrity or a poorly disguised attempt of voting rights suppression.
Recent court proceedings centered on a city-filed lawsuit against the three individuals who helped organize the petition drive – Sam Brannon, Kathleen O’Connell and Morgan Knecht – and an unincorporated association known as Communities for Thriving Water Fluoride-Free San Marcos. The defendants also subsequently filed their own counterclaim in the case.
At a June 12 hearing, San Marcos City Attorney Michael Consentino continued jurisdictional arguments introduced in an earlier hearing. Reiterating his view that Boyer has no authority to compel action by the city, specifically issuance of an order for the city to place the charter amendment on the ballot, Consentino maintained that any decision offering defendants the relief sought had to come from a Court of Appeals or the Texas Supreme Court.
He additionally argued that action could not be mandated as only the city of San Marcos was included in the defendants’ countersuit, not specific public officials.
Consentino again used 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 affirmations as the section dictates were the specific grounds cited.
The defendants instead argued 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.
Per Consentino, putting any item on the ballot requires an ordinance and despite the charter addressing them in separate sections with separate instruction, the city attorney claimed there is “no substantive difference between referendums, initiatives and city charter amendments.”
Consentino insisted there also is “no evidence any of the signatures are in the original handwriting of people who signed them” and that petitioners had responsibility for affirming the signatures as well as preparing the ordinance.
At the hearing, the city attorney termed the two separate charter sections as not mutually exclusive. “They should be harmonized,” he said.
“It’s not as complicated as it might seem,” attorney Brad Rockwell countered. “It’s about looking at the city charter.”
Rockwell argued that it comes down to what the charter says, not what the city claims it implies. He further termed the city’s interpretation as “strained.”
“This case offers no evidence of any wrongdoing, no evidence of irregularity or fraud,” Rockwell reminded. “The city seeks to put an onerous burden on petitioners.”
He discussed how within the city charter and state law, certain duties are imposed on citizens, certain duties on cities. With a charter amendment, the responsibility to effectuate an ordinance lies with the city, not the petitioners.
Per Rockwell, it’s evidence that petitioners were being treated as working under charter amendment rules, not ordinance rules, when the city used a five percent threshold for signature gathering.
The San Marcos charter specifically lists that initiatives (Section 6.01), referendums (Section 6.02) and recalls (Section 6.06) require the filing of a petition “signed by at least ten per cent of the qualified voters of the city.”
Section 6.03 specifies the language required for initiative and referendum petitions. The words “charter” and “amendment” do not appear in this section, but are addressed in the separate “Amending the Charter” section that states “Amendments to this Charter may be framed and submitted to the voters of the city in the manner provided by state law.”
It is state law, specifically Texas Local Government Code Section 9.004, that sets charter amendment petition signatures required at five percent.
With additional regard to Section 9.004, the city claimed petitioners violated two sub-sections – (d) and (e). The city purported the petition language violated 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.”
Rockwell charged the city is seeking “nonsensical obligations” that would prevent people from exercising their Constitutional rights.
“The city has been strategic in trying to keep this off the ballot,” Rockwell stated. “It did nothing to move this along and then filed a lawsuit trying to stonewall and cause a deadline to be missed.”
At the hearing’s conclusion, Boyer reminded the 40+ court spectators in attendance that any determination would not be made with regard to the validity of fluoride, but with regard to the election process and correct application of both the charter and state law.