Anyone?

Originally published by David Coale.

The supreme court granted mandamus relief in In re: Durnin, No. 21-0170 (March 2, 2021), which challenged the ballot language about an Austin ordinance related to “camping in public spaces, sitting and lying down on public sidewalks, and the aggressive solicitation of money.”

In a majority opinion by Justice Blacklock, the Court observed: “[I]t 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.” That said, it found that the 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.”

Justice Boyd, joined by Justices Devine and Busby, would go further and dissented: “Based on the plain language of the City of Austin’s charter, I would grant relators relief by requiring the city to state the caption contained in the voters’ certified petition as the proposition on the ballot.”

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