The fuller version of the Chron story addresses the question about whether the petition drive was lawful or not according to the city’s charter.
“It is your absolute sworn duty to place this on the ballot,” [Mayor Annise] Parker told council.
Several camera supporters on council disagreed, saying the proposal was “illegal” because it circumvented rules in the city charter that dictate that efforts to overturn city ordinances through referendum must be concluded within 30 days of a law taking effect. Since the red light camera ordinance was passed in 2004, some council members said, the petition was too late.
“Items like this don’t belong in the city charter,” said Councilwoman Anne Clutterbuck, who led the fight against the amendment. “Otherwise, we would be like California. … Anything we vote on at this table could be overturned by petition.”
[City Attorney David] Feldman, who forcefully argued that it was council members’ “mandatory ministerial duty” to put the amendment on the November ballot, acknowledged that the city charter does hold referendum proponents to the 30-day time limit. State law, however, has no such provision. He argued that state law would trump the charter in this case.
Clearly, that will be one of the issues for a judge to rule on, if and when someone files suit to stop the referendum. I want to also call your attention to this comment by JJMB from my previous entry that clarifies things further:
The City Charter itself has both a “referendum” section and an “initiative” section. The Kuboshes have avoided both of those procedures. “Initiative and referendum” are the way that voters have reacted to specific laws for hundreds of years. The hurdles are higher — react within 30 days and get 10% the highest Mayor election turnout in the last 3 years for referendum, or no time limit but 15% for an initiative. Notwithstanding the news reports, I believe that the initiative route has also been suggested as the way this should go — maybe not by KHS, but by some council members and lawyers.
I believe one could be a stickler and say that the 30 day process is the only way to go to rescind an ordinance that the representative body already put in place. But I read Kuffner’s prior post, and I’m willing to let the Kuboshes proceed with the initiative process, even though literally — and for 200 years — that is used to put a new ordinance in place without the representative body.
But it seems that the Kuboshes don’t want to go either of the way that the City voters — who put the City Charter in place — have established as the correct path.
Instead, the Kuboshes use state law to amend the charter itself. So along with “governance” type sections about whether the Mayor is strong or weak, how many councilmembers, term limits, voting procedures, etc., they want to add a specific red light camera rule. This is not the historical use of “referendum.”
But the 15% path is what … 40,000 signatures? So the Kuboshes took the easier 20,000 signature route.
Actually, by my calculation based on 181,000 votes cast in the last Mayoral election, it’s a bit more than 27,000 signatures. I’m unsure as a result of checking that figure where the 21,000-and-change figure for getting on the ballot this year came from, but if that was the standard, then a 15% threshold would be 31,500. Either one is more than the total that the Kuboshes submitted.
Anyway, JJMB’s comment clears up my confusion from that earlier post. I only quoted from section 3 of the city charter, entitled “Referendum”. I had skipped over section 2, entitled “Initiative”, because of this language:
The initiative shall be exercised in the following manner:
(a) Petition. A petition signed and verified in the manner and form required for recall petition in Article VI-a by qualified electors equal to fifteen per cent. of the total vote cast at the Democratic Primary for the nomination of Mayor and Commissioners, next preceding the filing of said petition, accompanied by the proposed legislation or measure in the form of a proposed ordinance or resolution, and requesting that such ordinance or resolution be submitted to a vote of the people, if not passed by the Council, shall be filed with the Secretary.
I saw the word “recall” and assumed it was specifically about recall elections, so I didn’t read this all the way through. Given that this mechanism exists, I take back my comments about the 30-day window being too restrictive. If this is the requirement for an effort outside of that time frame, then it’s clear that the Kuboshes have fallen short of the signature total needed, and it would seem that a state judge would be likely to toss this off the ballot. But again, until someone actually sues and a judge actually rules, it’s on.
One more thing:
Councilwoman Jolanda Jones questioned why council members did not put up a similar fight against another charter amendment proposal backed by powerful engineers that asks voters to tax themselves for an $8 billion program to shore up the city’s infrastructure and fix flooding problems.
“I just want us to be consistent,” Jones said.
The difference here is that the Kubosh effort is aiming at overturning an existing Council-enacted law, while the Renew Houston effort is not. At least, that’s how I perceive it. But I take CM Jones’ point.
You and I are probably being ridiculously esoteric here and no one with strong pro or anti camera views gives a hoot. But at least you and I are having fun thinking this through!
Re Jones’s comment, I would go further than “overturn existing” vs “add new law.” I see the infrastructure/flooding thing as a bigger, almost philosophical, “governance” issue. I think there is a new dedicated fund but the full City finances back it up, separate budget, City Council can’t monkey with it too much, etc. So it has the feel of a new aspect of city government — hence “worthy” of being a charter amendment. By contrast, it isn’t something like a move to reduce the city restaurant license fee in the relevant ordinance from $1,000 to $10, which seems like an initiative/referendum to me. How would a fixed $10 fee look appearing in the City Charter? Red-light cameras are somewhere in the middle, but they seem much more like an ordinance to me, not a game-changing governance revision. So I don’t buy her consistency argument.
From what I understand there were a total of about 50,000 signatures turned in with about 30,000 that would count as registered voters. The 20k number that has been quoted in the paper is just the threshold for the minimum for the council to accept it. that doesn’t mean that was what was turned in. Once the clerk gets to the minimum amount they stop counting. So, if it goes to a judge and he says that it should have been an initiative instead of a charter amendment it might be a moot point since the clerk could go back and verify more signatures of it were to be ruled as such. There would more than likely be more than the 27k needed for an initiative as well. It would be an interesting point though and one that will probably get sorted out in the court.
Charles, I can’t make citizens sign the petition. They sign the petition because they want to. Trust the people to do the right thing at the ballot box. If we lose then as far as Red Light Cameras are concerned I am done becuase it is what the people wanted. Most of City Council was afraid of losing the money that is why they hard such a hard time doing what the law required them to do. Andy Taylors comments about protecting the Charter was laughable in light of his past battles over Charter Amendments. He even worried about minority voter dilution. I will quote my brother “Since when has a Republican been worried about minority voter dilution”. Council Members Jones comments were about the people questioning my “motives”. They never questioned the motives of renew Houston. I don’t always read your posts but did you make any comment about whether or not the renew houston people live in houston?
Which Renew Houston people are you asking about? Council Member Costello? Yes, he lives in Houston. Anyone else you want me to check?
Kuff – Great update. This really explains some of the decisions and legal moves behind the scenes. Kubosh has probably received more business from this fight than any marketing campaign in the history of Houston. I support the cameras, think they reduce collisions while raising necessary funds but a hat tip to Kubosh for thinking up this marketing campaign. Even he has said that this has been good for business.
This was a lot more interesting when we were talking about the nuts and bolts of the petition. I really enjoyed the expertise of Charles and JJMB. Personally, I don’t know enough about renew Houston to have input, and I don’t really care about the residency issue one way or the other. There are a lot of people in Baytown that are upset they won’t be able to vote on the issue in November because, even though they have a Baytown address and drive under the cameras every day, they aren’t in the city limits. Charles and JJMB, I would like to hear your input on how the fact that we don’t know how many valid signatures were submitted since the clerk stopped counting affect what you have been discussing?
Since I think we should stick to representative democracy, I am a stickler for the technicalities. I think the City’s initiative and referendum sections should be used and not the charter amendment State law. And I don’t want them used very often, so I like the high hurdles. In fact, with 2+million people I would prefer something like 50-75,000 signatures.
And so I think the Kuboshes should have cited the initiative section (although I am on the fence about whether that is for new laws, and perhaps repealing an ordinance should only go through the referendum section) in their filing. It is too late now, so whether they really had enough signatures under the initiative section is not relevant to me. I would have been fine with them filing under BOTH initiative and charter amendment to cover themselves. But they chose their path.
On the substance side, I too support the cameras. But I will be here to make the same argument when it comes time for the the historic preservation ordinance to be attacked, and it the form likely to pass I am against that one. And in fact I will push the anti-preservation people to comply with the referendum section, get their signatures in 30 days, etc.
By the way, I have talked to a couple “little people” behind the planning, proposing, etc. of the program, and I am convinced that they are all purely motivated by safety, and they reported to me that they participated in dozens of meetings with politicians, all of whom focused on safety. Obviously the camera company just wants money — I will not defend a single one of their arguments as anything but profit motivated (I agree with some of their arguments, but I acknowledge the motive). But to impugn the integrity of 100s of people involved and to say that government is just looking for a cash cow is offensive to me. I think the Kuboshes lack character and civility for making such an argument. They also lack proof.
While I am at it, I also disagree with those who impugn the Kuboshes. Sorry, Steve. I don’t think they are trying to avoid losing business. I don’t think that is their motive. I just think they are so focussed on objecting to government and the enforcement of laws, trying to get obviously guilty people “out” of their tickets, etc, that they think any increase in government power in this area is a threat to liberty and freedom and challenging your accuser in court. I disagree with the Kuboshes on all that, but I wish they would stick to that argument and not wrongly impugn the pro red light people like they do.
I largely agree with JJMB, though I favor the preservation ordinance. The Kubosh folks took the path they took, which included getting their petitions in very late – my understanding is that the City Secretary’s office worked all weekend to finish the task of certifying them, which to my mind qualifies as “above and beyond” – and if that path is ultimately deemed to have been inappropriate, I say it’s their own fault. As such, the actual number of sigs they turned in, even if it would have been enough to clear the 15% threshold, isn’t relevant. Of course, even if they get rejected, that doesn’t mean they can’t try again in the future. They may get delayed, but the won’t be denied.
As I’ve said, I don’t have a quarrel with the Kuboshes working in their own financial interest. There’s nothing untoward or unusual about that. I’m bugged by them not living in Houston, but maybe that’s just me. I can understand the argument about them being affected by Houston’s red light cameras because they work here, but so what? What other Houston laws, passed by duly elected Houston City Council members, do they want to repeal because they don’t like them? Like I said, maybe it’s just me, but that does annoy me.
Thanks for responding, I appreciate your insight, as a newbie to the more in depth political arena I am still learning and this is one of the most complicated areas one can step into. I just wanted to point out the 2 points I made which were, it was assumed it actually is a referendum when that hasn’t been established and doesn’t fit in the typical definition of a referendum and that we can’t make any claims about the number of signatures submitted because they weren’t all counted but there are certainly more than what was reported. JJMB, I have also worked closely with members of the city staff in Baytown and several council members, and I posted a few weeks back on what I meant when I say it is all about revenue. Namely that it was about revenue for the city when they didn’t spend the money to do a proper engineering study to determine if there were better solutions than cameras, they rushed into a contract about a week before the new law went into effect so they could avoid the new restrictions that the legislature wanted to implement to protect citizens, like a restriction on paying a vendor a bounty on every ticket collected so the camera company would install the cameras for free at no cost to the city, and Baytown did profit from dangerously short yellow lights, to this day they still have refused to give that money back. I can’t speak for what the Houston guys mean but I have tried to make those points clear when I say it has more to do with revenue than safety.
Wow Charles – you’ve got the “heavyweights” on this issue.
At this point, does it really matter what Mr. Kubosh’s motivations were in getting this on the ballot? He didn’t clone himself 40,000 times or force folks to sign the petition at gun point.
I’m rather with him on the trusting the voters. At least now we’ll have at least some measure of what the will of the people is on this issue.
It makes me very skeptical when people want to try to deny the people the right to vote on the issue or to try to overturn their vote.
So Ron, if there are legitimate questions about the legality of the referendum effort, then we should just ignore them because it’s better to let the people vote? I don’t agree with that position. If the Kuboshes had fallen short of the required signature total, or if Anna Russell’s people had been unable to certify them all in time, should we have ignored those laws, too? The game has rules, and the rules should be followed. I don’t see what’s so sinister about that.
No Charles – that’s not it at all. Are you saying that Dave Feldman doesn’t believe in following the law? Questions of legality can be resolved at the legislative level or the judicial level.
If Feldman had done an objective legal analysis and said they should keep the issue off the ballot, then I’d be as critical of people who sued to get it on the ballot. The fact is that Feldman is the city attorney and has a duty to try to persuade the city to follow what he deems is the “law.”
You have a guy who (disclaimer – I know Feldman) has been a lawyer representing governmental agencies for somewhere close to 30 years. I certainly don’t then he’s telling council they have a “ministerial duty” to put this on the ballot unless he thought it was the “legal” thing to do.
The point is that the people we have entrusted to make certain the city follows the law say the issue needs to be on the ballot. It appears it’s going to be on the ballot and be voted on by the people. Once that’s done (whatever the result) anyone who the drags the city into litigation over the issue is simply in my mind doing a disservice to the taxpayers of the City of Houston.
Kubosh has just publicly said that after the vote he’s done. My sincere hope is that folks on the other side of the issue will follow a similar wisdom.
Yes, Dave Feldman’s opinion was that the referendum was legal. But his opinion isn’t binding, just as an Attorney General opinion isn’t binding, nor is it unanimous as CM Clutterbuck made clear. His opinion was sufficient to overcome the objections of Council members who didn’t think they should be voting to put the referendum on the ballot, but surely it’s not a bar to someone who wants to challenge it in court. Whether it’s advisable or not, whether you like the politics or not, whether you like their motives or not, Keep Houston Safe or whoever has the right to litigate this matter.
Paul Kubosh is correct… Renew Houston will not reveal their true membership because half of them don’t even live in Houston! Same goes for why they won’t disclose who raised the $1million to get their referendum on the ballot! At least Kubosh & friends frely admit who they are & aren’t ashamed of it!
@Charles
I agree they have a right to litigate it. The point is that in many ways we have the right to be whiny petulant children. What I’m saying is that if they make that choice their credibility has went to 0% for this person.
its a good point Ron, do they risk alienating voters by fighting it and risk loosing anyway because of that or do they want to keep it off the ballot so much because they aren’t confident in the outcome so it doesn’t matter and they will take that chance anyway. I think a pre election lawsuit would be an indication of how they think the vote would go. If they file one they think they have a really good chance of loosing and don’t care if they alienate voters because they think they might loose anyway. Typically, judges will give all benefit of the doubt to the voters and council. A judge would most likely say that he defers to the wisdom of the council by putting it on the ballot. How likely is it that an elected judge would block a controversial issue from going to the ballot? Think about it, if they were really confident in the poll they commissioned why would they fight it going to the ballot? Wouldn’t a positive vote for the cameras in Houston be a huge blow to the efforts around the state and the country and wouldn’t it send a message to the legislature next session when they are supposed to take up the issue then? Honestly, I can’t imagine that an Arizona corporation cares that much about the definition of a referendum here or about the Houston election process. They are going to act in their best financial interests. The most effective time for them to litigate this is to contest the election after it is done. Who knows? they might win. But in that case if the people vote the cameras out but a election contest suit goes their way the city will most likely get rid of the cameras anyway and they would have lost their ultimate goal of keeping the cameras up. This is what happened in College Station, they argued that the petition was an untimely referrendum and in mediation the city decided not to adopt the ordinance on the books but still said the people made it clear that the cameras should come down and the council got rid of the cameras. Which do you think they would have rather had?
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