On Thursday May 24th a narrow City Council majority voted to refuse to place the citizen petitioned CodeNext review ordinance on the ballot.Those of us who circulated, signed, and support the initiated ordinance extend our thanks to Councilmembers Ora Houston, Leslie Pool, Alison Alter, and Mayor Pro Tem Kathie Tovo for standing firm in support of our right to vote on the petitioned ordinance.

A law suit will be filed soon seeking an order that the Council call the election.

It’s unfortunate that it has come to this. But not unexpected. By definition, the initiative process is invoked when elected officials refuse to act. More often than not, city councils look for every possible excuse to keep citizen initiatives off the ballot. They hate it when citizens infringe on their powers. And they fear being on the losing end of a popular vote.

So it was when a similarly narrow majority of the Austin City Council sought to keep the Save Our Springs initiative ordinance off the ballot in 1992. Here’s a short version of the applicable law, which remains the same from that time.

The council has a “ministerial duty” to call the election. While the council majority may honestly believe that a small part of the initiated ordinance that touches on zoning is in conflict with state law, that legal question is irrelevant at this time. Court review of the validity of the ordinance only comes later, if and when the petitioned ordinance is approved by the voters and becomes law.

In the 1980 landmark case of Coalson v. City Council of Victoria, then Chief Justice Jack Pope wrote:

“The election may result in the disapproval of the proposed amendment. District courts, under our Constitution, do not give advice nor decide cases upon speculative, hypothetical, or contingent situations. [ ] The election will determine whether there is a justiciable issue, at which time the [City Council’s] complaints against the validity of the initiatory process . . . may be determined by the trial court.”

“The initiative process . . . affords direct popular participation in lawmaking. The system has its historical roots in the people's dissatisfaction with officialdom's refusal to enact laws. 1 Bryce, The American Commonwealth (1st ed. 1888). It is an implementation of the basic principle of Article I, Section 2, of the Texas Bill of Rights: "All political power is inherent in the people ...." This court stated in Taxpayers' Ass'n of Harris County v. City of Houston, (1937), that "the power of initiative and referendum ... is the exercise by the people of a power reserved to them, and not the exercise of a right granted," and that "in order to protect the people of the city in the exercise of this reserved legislative power, such charter provisions should be liberally construed in favor of the power reserved." [ ] The City Council's duty is clear, and its compliance with the law is ministerial in nature. The City Council's refusal to submit the proposed amendments to the vote of the people thwarts not only the legislature's mandate but the will of the public.”

This legal analysis was again cited by the Texas Supreme Court in a 2015 case where the Court ordered the City of Houston to place a citizen initiative on the ballot.

We don’t look forward to suing our own city council. But, at this point, we have no choice. CodeNext is simply too important to leave to a narrow majority of city council.