by BRAD ROLLINS
Handing a procedural victory to proponents of a proposed city charter amendment that would prohibit artificial fluoridation of the municipal water supply, a state judge ruled on Friday that San Marcos officials misinterpreted the city charter in refusing to validate a grassroots petition calling for a popular election on the issue.
Invoking “the principle that the citizens’ right to exercise their reserve legislative power should be liberally construed in favor of that power,” 22nd State District Judge Bruce Boyer said that he “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 the Texas Local Government Code].”
“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,” Boyer concluded.
Acting on unambiguous advice from the city attorney, City Clerk Jamie Lee Pettijohn on May 5 said she would not attempt to verify more than 2,000 signatures on the petition, which would obligate the city to place a proposed charter amendment on the Nov. 3 general election ballot that states, in part, “The city of San Marcos … shall not fluoridate the public water supply or accept any fluoridated water for use in the San Marcos water system.” Anti-fluoridation activists say they have verified 1,634 of the signatures as belonging to registered San Marcos voters eligible to sign the petition.
In a lawsuit filed June 17 against Communities For Thriving Water – Fluoride Free San Marcos and three anti-fluoridation activists, City Attorney Michael Cosentino asked a judge to declare the petition invalid because each of its 572 pages is not accompanied by “an oath or affirmation that … each signature to the paper appended is the genuine signature of the person whose name purports to be signed.” The oath requirement is codified under a section of the charter titled “Initiative, Referendum and Recall.”
In a countersuit filed July 17 on behalf of Communities For Thriving Water and defendants Kathleen O’Connell, Sam Brannon and Morgan Knecht, attorney Brad Rockwell scoffs at Cosentino’s “hysterical and punitive” lawsuit and argues that the only applicable portion of the city charter — a section titled “Amending The Charter” — makes no mention of oaths, affirmation or any requirement beyond those established in the Texas Election Code.
Boyer ruled against Cosentino on three of four substantial issues on which the city based its lawsuit, finding that the petition does comply with state and municipal law; that the petition is not void because of the lack of an accompanying oath; and that the city is legally required to put the amendment on the ballot assuming the petitioners gathered enough valid signatures.
Because he determined that the “Initiative, Referendum and Recall” portion of the charter does not apply to the charter amendment under consideration, Boyer declined to rule on the constitutionality of the “oath or affirmation” requirement for petitions, the city’s fourth request.
Boyer heard arguments on Aug. 6 and Aug. 12 from Cosentino on behalf of the city and from Rockwell and attorney Lynn Peach on behalf of Communities For Thriving Water, O’Connell, Brannon and Knecht.
This is a developing story.