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Beside the Point: Sue Sue Sue-Dio

While City Hall slumbers, the law in its majesty marches on

By Michael King, Fri., July 8, 2011

As the holiday weekend began July 1, Council Member Laura Morrison (aka, "LauraatCityHall") tweeted: "City Hall is VERY quiet today. Nice to have some time to power down." City Hall may be on screen saver – and City Council on summer hiatus until July 28 – but the wheels of justice inexorably turn. With the Hustle out of town for a few days celebrating the birth of freedom – while the rest of us remain shackled to our desks – Beside the Point pinch-hits on a few City Hall items nearly forgotten in the recent Formula 1 frenzy: specifically, three lawsuits with city government connections.

1) F1/Comptroller: Friday afternoon, Travis County District Judge Rhonda Hurley, without comment, declined to issue a temporary restraining order to stop Comptroller Susan Combs from issuing a $25 million payment to the owners of Circuit of the Americas, the F1 racetrack southeast of Austin (the much-debated $25 million state subsidy intended for the F1 franchise fee for the first race next year). Three Austinites – CPA Richard Viktorin, teacher Ewa Siwak, and Del Valle School District board member Richard Franklin – sued Combs, calling the F1 arrangement an "unlawful plunder of public funds" and arguing that the legal conditions required for issuing the payment from the state Major Events Trust Fund have not been met.

The plaintiffs had argued that before the money could be transferred, an official race date must be confirmed, a "highly competitive selection process" must have determined the race site, and a "site selection organization" must receive the funds – three elements that were arguably not precisely present. Apparently, Hurley disagreed.

Plaintiffs' attorney Bill Aleshire said his team sought the restraining order when the comptroller declined to cooperate on discovery and scheduling, but the state money is apparently on its way. "Since the lawsuit is based on preventing Combs from spending the money," Aleshire said via email, "we will likely drop the lawsuit at this point."

2) Historic Zoning: In April, three Austinites – conservative activist Dominic Chavez, Democratic consultant Alfred Stanley, and the indescribable Mike Levy – sued the city and council over the historic zoning program, which designates historic properties for property-tax abatements (and effectively acts as the designator for abatements from Austin ISD and Travis County). The plaintiffs charged that the program violates the tax code by failing to demonstrate an actual need for the abatements in promoting historic preservation and discriminates against other property owners. They called the practice "frivolous, arbitrary, and excessive."

Council had already requested city staff to draft revisions to the embattled program. On Friday, both the plaintiffs' lawyer and the city's outside legal counsel said that the parties were moving toward a tentative settlement, pending council action. A hearing scheduled for this week was postponed until August, after council's late July meeting. Plaintiffs' lawyer Jim George said that council's proposed revisions address his clients' primary objection – that under state law, the preservation need for abatements must be consistently justified. "The proof is in the pudding," said George, saying he'll wait for council action before deciding whether to pursue the suit. The city's attorney on the matter, Beverly Reeves, said that the parties are "discussing options" but that any final resolution would be contingent on council action.

3) Open Records: Also pending in state district court is the Austin Bulldog's lawsuit against the city and council members, alleging violations of the Texas Public Information Act and the Local Government Records Act. (Bulldog Publisher Ken Martin's initial open-records requests resulted in a series of releases of internal council emails.) In March, when the city was slow to respond with all the various email accounts, the Bulldog sued, charging that some records were being concealed or withheld and asking the court to force release of the records and sanction the city.

Later, more emails were discovered and released, and the city responded in April with "pleas to the jurisdiction" (arguing that state law provides no mechanism for private enforcement of the relevant open records laws and that council members are not liable as individuals). The city's brief also argues that all the relevant records have in fact been released (or would be so shortly). According to attorney Jim Cousar, representing the city, that's where the matter stands as of this week. "We don't think either the Texas Public Information Act or the Local Government Records Act is enforceable by a civil suit from a third party," Cousar said.

Bulldog attorney Bill Aleshire said there remains disagreement whether all relevant emails (and others more recently requested) have in fact been released. "We will likely amend the lawsuit to incorporate this dispute," said Aleshire, "and let a judge decide whether a public official can pick and choose which 'public records' will be disclosed." (Meanwhile, Travis County Attorney David Escamilla is investigating whether the emails or the previously routine two- or three-member council discussions constituted illegal "walking quorums" under the state Open Meetings Act.)

Aleshire commented: "These are not easy cases. The day that attorneys decline to take the hard cases or to challenge powerful interests is the day our courts cease to be important sources of justice."

City Hall Hustle will return in two weeks.

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