The opinion
ACCEPTED
03-15-00518-CV
7743778
THIRD COURT OF APPEALS
AUSTIN, TEXAS
11/9/2015 2:18:30 PM
November 19, 2015 JEFFREY D. KYLE
CLERK
CASE NO. 03-15-00518-CV
IN THE THIRD COURT OF APPEALS RECEIVED IN
AUSTIN, TEXAS 3rd COURT OF APPEALS
AUSTIN, TEXAS
_______________________________________________________
11/9/2015 2:18:30 PM
JEFFREY D. KYLE
CITY OF SAN MARCOS, TEXAS Clerk
Appellant
v.
SAM BRANNON, COMMUNITIES FOR TEXAS THRIVING
WATER FLUORIDE-FREE SAN MARCOS, MORGAN KNECHT AND
KATHLEEN O’CONNELL
Appellee
________________________________________________________
On Appeal from the 274th Judicial District Court of Hays County, Texas
Honorable R. Bruce Boyer, Judge Presiding
Trial Court Cause Number 15-1266
_________________________________________________________________
APPELLANT’S REPLY BRIEF
__________________________________________________________________
MCKAMIE KRUEGER, LLP
941 Proton Rd.
San Antonio, Texas 78258
210.546.2122
210.546.2130 (Fax)
William M. McKamie
State Bar No. 13686800
mick@mckamiekrueger.com
CITY ATTORNEY
CITY OF SAN MARCOS, TEXAS
512.393.8153
Fax 512.393.3983
ORAL ARGUMENT REQUESTED
Michael J. Cosentino
State Bar No. 04849600
mcosentino@sanmarcostx.gov
ATTORNEYS FOR APPELLANT
ii
TABLE OF CONTENTS
INDEX OF AUTHORITIES.....................................................................................iv
STATEMENT OF THE CASE .................................................................................. 2
REPLY POINTS ........................................................................................................2
Reply Point 1: Appellees’ claim for writ of mandamus is moot .................... 2
Reply Point 2: Appellees’ claim for declaratory relief is also moot, as there
remains no underlying controversy. ............................................................... 2
ARGUMENT & AUTHORITIES ............................................................................. 2
Reply Point 1 ...................................................................................................2
Reply Point 2 ...................................................................................................2
PRAYER ....................................................................................................................3
CERTIFICATE OF COMPLIANCE ......................................................................... 4
CERTIFICATE OF SERVICE ..................................................................................5
APPENDIX ................................................................................................................6
iii
INDEX OF AUTHORITIES
Cases
City of El Paso v. Heinrich, 284 S.W.3d 366, 373 n. 6 (Tex. 2009) .........................3
City of Houston v. Williams, 216 S.W.3d 827, 828-29 (Tex. 2007) (per curiam) .....3
IT-Davy, 74 S.W.3d at 855 ........................................................................................3
Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993) .........3
Tex. Natural Res. Conservation Comm’n v. IT–Davy, 74 S.W.3d 849, 855 (Tex.
2002) .......................................................................................................................3
iv
CASE NO. 03-15-00518-CV
IN THE THIRD COURT OF APPEALS
AUSTIN, TEXAS
_______________________________________________________
CITY OF SAN MARCOS, TEXAS
Appellant
v.
SAM BRANNON, COMMUNITIES FOR TEXAS THRIVING
WATER FLUORIDE-FREE SAN MARCOS, MORGAN KNECHT AND
KATHLEEN O’CONNELL
Appellee
________________________________________________________
On Appeal from the 274th Judicial District Court of Hays County, Texas
Honorable R. Bruce Boyer, Judge Presiding
Trial Court Cause Number 15-1266
_________________________________________________________________
APPELLANT’S REPLY BRIEF
__________________________________________________________________
TO THE HONORABLE THIRD COURT OF APPEALS:
NOW COMES Appellant, CITY OF SAN MARCOS, TEXAS (“City”), and
submits this brief in reply to Appellees’ Brief. For clarity, unless otherwise noted,
the Appellant shall be referred to as the “City,” the Appellees shall retain that
reference.
1
STATEMENT OF THE CASE
REPLY POINTS
Reply Point 1: Appellees’ claim for writ of mandamus is moot.
Reply Point 2: Appellees’ claim for declaratory relief is also moot, as
there remains no underlying controversy.
ARGUMENT AND AUTHORITIES
Reply Point 1: Appellees’ claim for writ of mandamus is moot.
This case concerns a dispute regarding the validity of a petition filed with
the City of San Marcos City Clerk on April 2, 2015 to place a proposed
amendment to the City Charter on the ballot in a special election on November 3,
2015. Appellees’ pleadings in the trial court restrict the request to a charter
amendment election to be held on that date (Appendix A, B, C). Because that
specific date has now passed and the objective of petitioners cannot be met, the
claim for writ of mandamus is moot. In fact, Appellees’ acknowledge mootness:
“The statutory deadline for the City of San Marcos to order a special election on
the charter amendment that was the subject of Appellees’ petition was August 24,
2015.” Response Brief of Appellees, p. 4.
Appellees’ claims for mandamus relief are moot.
Reply Point 2: Appellees’ claim for declaratory relief is also moot, as
there remains no underlying controversy.
In the Counterclaim, Appellees seek declaratory relief.
2
“A litigant’s couching its requested relief in terms of declaratory relief does
not alter the underlying nature of the suit. City of El Paso v. Heinrich, 284 S.W.3d
366, 373 n. 6 (Tex. 2009). Here, the sole objective of Appellees’ Counterclaims
was clearly and unambiguously an order for a special election to be conducted on
November 3, 2015.
Generally, the Declaratory Judgment Act does not alter a trial court's
jurisdiction. Tex. Natural Res. Conservation Comm’n v. IT–Davy, 74 S.W.3d 849,
855 (Tex. 2002), but is "merely a procedural device for deciding cases already
within a court's jurisdiction." Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852
S.W.2d 440, 444 (Tex. 1993). And a litigant's couching its requested relief in terms
of declaratory relief does not alter the underlying nature of the suit. Heinrich, 284
S.W.3d at 370-71; IT-Davy, 74 S.W.3d at 855.
Because jurisdiction is lacking over the claim for writ of mandamus, there is
no right to relief under the Declaratory Judgment Act. See City of Houston v.
Williams, 216 S.W.3d 827, 828-29 (Tex. 2007) (per curiam).
The Court lacks jurisdiction.
PRAYER
The City prays this Honorable Court reverse and render in favor of the City
and against Appellees, and dismiss all of Appellees’ counterclaims, including
claims for writ of mandamus and for declaratory relief, for lack of jurisdiction.
3
Respectfully submitted,
MCKAMIE KRUEGER, LLP
941 Proton Rd.
San Antonio, Texas 78258
210.546.2122
210.546.2130 (Fax)
/s/: William M. McKamie
WILLIAM M. McKAMIE
State Bar No. 13686800
mick@mckamiekrueger.com
and
CITY ATTORNEY
CITY OF SAN MARCOS, TEXAS
512.393.8153
Fax 512.393.3983
/s/: Michael J. Cosentino
Michael J. Cosentino
State Bar No. 04849600
mcosentino@sanmarcostx.gov
ATTORNEYS FOR DEFENDANT
CITY OF SAN MARCOS, TEXAS
CERTIFICATE OF COMPLIANCE
I certify that this document is in compliance with Tex. R. App. P. 9.4 (e) and (i). It
contains 1,168 words excluding the exempted parts of the document. The body text
is in 14 point font, and the footnote text is in 12 point font.
/s/ William M. McKamie______________
WILLIAM M. McKAMIE
4
CERTIFICATE OF SERVICE
I certify that a copy of Appellant’s Reply Brief was served in accordance
with the Texas Rules of Appellate Procedure as indicated below on November 6.
2015 addressed to:
Craig F. Young
108 E. San Antonio
San Marcos, Texas 78666
512.847.7809
512.393.1212 (Fax)
cyoung@lawyer.com
Attorney for Morgan Knecht
Lynn Peach
147 S. Guadalupe, Suite 101
San Marcos, Texas 78666
512.393.9991
888.428.0468 (Fax)
lynn@lynnpeachlaw.com
Attorney for Sam Brannon
Brad Rockwell
707 Rio Grande, Ste. 200
Austin, Texas 78701
SBN 17129600
brad@LF-lawfirm.com
512-469-6000
512-482-9346 (fax)
Attorney for Kathleen O'Connell and
Communities for Thriving Water-Fluoride
Free San Marcos
/s/ William M. McKamie____
WILLIAM M. McKAMIE
5
CASE NO. 03-15-00518-CV
IN THE THIRD COURT OF APPEALS
AUSTIN, TEXAS
_______________________________________________________
CITY OF SAN MARCOS, TEXAS
Appellant
v.
SAM BRANNON, COMMUNITIES FOR TEXAS THRIVING
WATER FLUORIDE-FREE SAN MARCOS, MORGAN KNECHT AND
KATHLEEN O’CONNELL
Appellee
________________________________________________________
On Appeal from the 274th Judicial District Court of Hays County, Texas
Honorable R. Bruce Boyer, Judge Presiding
Trial Court Cause Number 15-1266
__________________________________________________________________
APPELLANT’S APPENDIX
__________________________________________________________________
A. Counterclaims of Communities for Thriving Water-Fluoride Free San
Marcos, and Kathleen O’Connell filed July 17, 2015(CR: 20)
B. Counterclaims filed on behalf of Sam Brannon, filed July 17, 2015 (CR: 35)
C. First Amended Counterclaims of Communities for Thriving Water-Fluoride
Free San Marcos, and Kathleen O’Connell, filed August 4, 2015 (CR: 56)
6
FILED
7/17/2015 4:30:22 PM
Beverly Crumley
District Clerk
Hays County, Texas
CASE NO. 15-1266
CITY OF SAN MARCOS, TEXAS, §
Plaintiff and Counter-Defendant, §
§ IN THE DISTRICT COURT
v. §
§
COMMUNITIES FOR THRIVING §
WATER-FLUORIDE FREE SAN §
MARCOS, AND KATHLEEN § OF HAYS COUNTY, TEXAS
O’CONNELL §
Defendants and Counter-claimants, §
§
and §
§ 274TH JUDICIAL DISTRICT
SAM BRANNON and MORGAN §
KNECHT, §
Defendants. §
COUNTERCLAIMS
OF COMMUNITIES FOR THRIVING WATER-
FLUORIDE FREE SAN MARCOS, AND KATHLEEN O’CONNELL
EXPEDITED CONSIDERATION IS REQUESTED.
TO THE HONORABLE JUDGE OF THE COURT:
COME NOW Communities for Thriving Water Fluoride-Free San Marcos
(“Communities”), and Kathleen O’Connell (collectively “Defendants” or
“Counterclaimants”), and file these Counterclaims against Plaintiff and Counter-
Defendant City of San Marcos, and in support therewith, respectfully offer the following:
Appendix - A
000020
I.
NATURE OF THE CASE AND DISCOVERY CONTROL PLAN
1. Counterclaimants intend that discovery be conducted under Level 3, Texas
Rule of Civil Procedure 190.4.
2. Communities and Kathleen O’Connell submitted to Plaintiff and Counter-
Defendant City of San Marcos a Petition for an amendment to the Charter of
the City of San Marcos to bar the addition of fluoride to the San Marcos public
water supply (“Petition”) on April 1, 2015. Substantially more than 5% of the
voters within the City of San Marcos signed this Petition. The City of San
Marcos, however, has refused to submit the proposed charter amendment to the
voters as required by section 9.004(a) of the Texas Local Government Code.
3. The San Marcos City Clerk has refused to even count the signatures for the
Petition, taking the position that all the signatures are “invalid” because “none
of the petition papers contains an oath or affirmation.” As a matter of Texas
statute and the San Marcos City Charter, there is no requirement that petitions
for a City Charter amendment contain an oath or affirmation. Such a
requirement in this situation would be a violation of Article I, Section 2 and
Article XI Section 5 of the Texas Constitution as well as a violation of the First
and Fourteenth Amendments of the United States Constitution.
4. The City of San Marcos has filed a hysterical and punitive lawsuit against the
Defendants, and made allegations that are known to the City to be false. San
2
000021
Marcos has asked the Court to award it attorney’s fees for the costs San
Marcos has incurred filing suit against Defendants.
5. Communities and Kathleen O’Connell as Counterclaimants seek a writ of
mandamus and injunction ordering the Counter-Defendant to place the charter
amendment on the ballot for the November 3, 2015 election. They also seek
related declaratory relief.
6. Under the authority of §37.008 of the Texas Civil Practice and Remedies Code,
Counterclaim Plaintiffs hereby sue to recover their costs and reasonable and
necessary attorney’s fees in both the trial of this case and in connection with
any subsequent appeal.
7. Counterclaimants seek monetary relief of $100,000 or less and nonmonetary
injunctive, declaratory and mandamus relief.
8. The Texas Election Code requires general elections to be ordered not later than
the 78th day before Election Day. Applied here, the deadline for San Marcos to
order an election for the proposed Charter amendments is August 17, 2015, one
month from today.
9. For this reason, expedited consideration is requested.
II.
PARTIES
10. Counterclaimant Communities for Thriving Waters Fluoride-Free San Marcos
is an association created to cause Counter-Defendant San Marcos to stop
adding fluoride to its public water supply. Communities submitted the Petition
3
000022
to amend the San Marcos charter to prohibit fluoridation. Most of
Communities members are residents of San Marcos, registered and qualified
voters, and have signed the Petition. Most of the members of Communities
wish to vote for the Charter amendment in an election. Most of the members
are customers of San Marcos’ public water system. San Marcos initiated the
instant lawsuit by filing suit against Communities.
11. Counterclaimant Kathleen O’Connell is a member of Communities and has
submitted the Petition to San Marcos and she has been sued by San Marcos for
doing so. San Marcos initiated the instant lawsuit by filing suit against
Kathleen O’Connell.
12. Counter-Defendant City of San Marcos is a home rule Texas City and is
represented by the City Attorney in this lawsuit. San Marcos is the initial
Plaintiff in this lawsuit, having sued its citizens for submitting a City Charter
Amendment petition and asking the Court to judge these citizens liable for the
attorney’s fees resulting from the City’s lawsuit.
III.
JURISDICTION AND VENUE
13. This Court has subject matter jurisdiction pursuant to Texas Civil Practice and
Remedies Code section 32.003, Texas Government Code section 24.008, and
Article V, section 8 of the Texas Constitution.
14. Venue is proper in Hays County, Texas, under Sections 15.002 and 15.004 of
the Texas Civil Practice and Remedies Code.
4
000023
IV.
FACTS
15. Counterclaimants are aware of scientific research indicating that fluoridation of
the public water supply is detrimental to human health. Hundreds of cities
agree and have decided to stop adding fluoride to their public drinking water.
Among the Texas cities that have stopped adding fluoride to their waters are:
College Station, Alamo Heights, Elgin, and Lago Vista. Other cities who no
longer fluoridate their public water supply include Albuquerque, New Mexico;
Honolulu, Hawaii; Colorado Springs, Colorado; Spokane, Olympia, and
Bellingham, Washington; Davis, Redding, Santa Barbara, and Santa Cruz,
California; Portland, Oregon; Fairbanks and Juneau, Alaska; and Quebec City,
Windsor, and Calgary, Canada.
16. The City of College Station estimated a savings to its taxpayers of about
$40,000 attributable to the discontinuation of fluoridation.
17. Counterclaimants began discussions with San Marcos city officials in the year
2013 in an attempt to convince them to discontinue fluoridation of San Marcos
water.
18. On August 13, 2013, the San Marcos Executive Director of Public Services,
Tom Taggart, sent a memo to the San Marcos Mayor, City Council, and City
Clerk summarizing the requests being made by Counterclaimants. Among
other things, the Mayor, City Council, and City Clerk were informed by their
staff that Counterclaimant O’Connell’s and Communities’ goal was to “cease
5
000024
fluoridation of the drinking water supply in San Marcos” and to stop “the
addition of fluoride to the Public Drinking water supply.” Mr. Taggart also
informed the Mayor, City Council and City Clerk that Counterclaimants
wished to see the “Fluoride feed equipment.”
19. On August 13, 2013, the San Marcos Executive Director of Public Services
also informed the Mayor, City Council, and City Clerk that “a policy change
could result in the discontinuation of the treatment at any time” and that the
effect on the budget would be a savings in the annual cost to San Marcos of
fluoridation which amounted to $14,000.
20. Counterclaimants have never asked San Marcos to remove naturally-occurring
fluoride in the drinking water.
21. On April 12, 2015, Counterclaimants submitted to San Marcos a Petition with
over 2,000 signatures for a Charter Amendment to be placed on the ballot for
the consideration of voters. Counterclaimants pre-verified that at least 1,634 of
these signatures were of valid San Marcos voters. This number of voters
significantly exceeds 5% of the number of San Marcos registered voters.
22. If approved by the voters, the Charter Amendment would preclude San Marcos
from adding fluoride to its public water supply. The Petition was titled a
“PETITION to BAN FLOURIDATION in CITY OF SAN MARCOS
WATER.” The Charter language proposed by the Petition read:
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, including but not limited to the addition of
6
000025
Hydrofluorosilicic Acid, Hexafluorosilicic Acid, Sodium
Silicofluoride, or any other fluoride derivative. The City of San
Marcos shall not purchase, install, or allow the installation of
fluoridation equipment to be used in relation to the San Marcos
municipal water supply or its distribution system.
23. Nowhere in the Petition was there any request or requirement that San Marcos
remove naturally-occurring fluoride that sometimes is found in its source of
water.
24. On April 7, 2015, Counterclaimant O’Connell and Defendant Brannon met
with San Marcos City Manager Jared Miller. Mr. Miller asked multiple
questions about removing naturally-occurring fluoride. O’Connell and
Brannon responded to each of his questions, explaining carefully that neither
they nor Communities, nor the Petition ever mentioned or requested that
naturally-occurring fluoride be removed from San Marcos water.
25. The San Marcos City Clerk refused to even count the signatures on the Petition
submitted to her. On May 6, she announced that “none of the petition papers
contains an oath or affirmation [and therefore] none of the signatures may be
counted.”
26. On May 18, Communities and O’Connell sent a letter to the Mayor and City
Council of San Marcos asking them to place the Charter amendment measure
on the ballot as required by section 9.004(a) of the Texas Local Government
Code.
27. This request was again made on June 16, 2015.
7
000026
28. Counterclaimants made demand on the City of San Marcos to submit the
proposed charter amendment to the voters as required by section 9.004(a) of
the Texas Local Government Code. But the City of San Marcos has refused.
29. On or about June 18, 2015, the City of San Marcos filed suit against
Counterclaimants, Sam Brannon, and Morgan Knecht seeking declaratory
relief and a judgment asking Kathleen O’Connell, Sam Brannon, Morgan
Knecht, and Communities for Thriving Waters – Fluoride Free San Marcos to
pay the City’s attorney’s fees.
30. The City seeks a declaration validating the position it took with regard to the
alleged oath or affidavit requirement for City charter petitions.
31. The City also alleged that the Petitioned charter amendment
would prohibit the City of San Marcos from accepting …
naturally fluoridated surface water and groundwater … forcing
the City to find, finance and develop a new raw water supply or to
design and install equipment at its surface water treatment plant
and ground water wells in an attempt to remove all fluoride
derivatives….
San Marcos further alleged that the cost to the City of doing this would exceed
$97 million.
32. As a result of the filing of this lawsuit, these knowingly false allegations have
been repeated by the news media as if they were true.
33. The effect of these legally and factually baseless claims has been to cast the
Counterclaimants and their work in a false light, harm their reputations, and
8
000027
falsely prejudice the voters of San Marcos against this proposed Charter
amendment.
V.
MANDAMUS
34. Counterclaimants submitted to Counterdefendant City of San Marcos a Petition
for a Charter amendment containing more than 1,634 valid signatures of
qualified voters of the City of San Marcos, pursuant to section 277.002(a) of
the Texas Election Code and section 9.004(a) of the Texas Local Government
Code.
35. The number of these qualified signatures exceeded the requirements of section
9.004(a). Five percent of the number of qualified San Marcos voters is
approximately 964.
36. “When the requisite number of qualified signatures sign such a petition, the
municipal authority must put the measure to a popular vote.” Blume v. Lanier,
997 S.W.2d 259, 262 (Tex. 1999).
37. The City of San Marcos had a non-discretionary ministerial duty to put the
Charter amendment requested by the Petition on the ballot.
38. By refusing to place the Charter amendment on the ballot, San Marcos abused
its discretion.
39. Counterclaimants are entitled to immediate mandamus relief. Without the
issuance of a mandamus, Counterclaimants may not have a remedy at law.
9
000028
VI.
INJUNCTION AGAINST VIOLATIONS
OF ART. I, § 2 AND ART. IX, § 5 OF THE TEXAS CONSTITUTION
40. The city charter petition process implements Article I, section 2 of the Texas
Bill of Rights, which states that “All political power is inherent in the people.”
Green v. City of Lubbock, 627 S.w.2d 868, 871 (Tex. App. – Amarillo 1982,
writ ref’d n.r.e.).
41. The system of petitioning for a charter amendment “has its historical roots in
the people’s dissatisfaction with officialdom’s refusal to enact laws.” Green,
627 S.W.2d at 871. It is “the exercise by the people of a power reserved to
them.” Taxpayers’ Ass’n of Harris County v. City of Houston, 105 S.W.2d
655, 657 (Tex. 1937).
42. As a matter of constitutional law, all rights relating to submitting petitions for a
vote on a charter amendment should be liberally construed in favor of the
power reserved to the people. Taxpayers’ Ass’n, 105 S.W.2d at 657.
43. The law has long been that city charter requirements for amending a charter by
petition are different than the requirements for passing ordinances by initiative
and referendum. See Edwards v. Murphy, 256 S.W.2d 470 (Tex. Civ. App. –
Fort Worth 1953, dism’d).
44. The San Marcos City Charter has only one section, 12.11, expressly defining
the process for amending the City Charter. It is titled “Amending the City
Charter” and reads in its entirety:
10
000029
Amendments to this Charter may be framed and submitted to the
voters of the City in the manner provided by state law.
(emphasis supplied).
45. This section 12.11 Charter provision is consistent with Art. XI § 5 of the
Texas Constitution which says the “amendment of charters is subject to such
limitations as may be prescribed by the Legislature.”
46. San Marcos has transgressed this constitutional provision by imposing
signature validation requirements that are more onerous than what is
specifically prescribed by the Legislature – e.g. which are more restrictive than
and not consistent with Election Code section 277.002(a).
47. With respect to the Counterclaimants’ fluoridation petition, San Marcos has
taken the position that the criteria for establishing the validity of Charter
amendment petitions is not found in state law, but rather in a section of the San
Marcos Charter, section 6.03, which is not even mentioned by the Charter
section 12.11 entitled “Amending the City Charter.” Section 6.03 references
petitions for ordinances rather than Charter amendments.
48. Because the submission of signatures verified under oath is required to place a
citizen-initiated ordinance on the ballot, San Marcos takes the position that a
similar oath or verification is required for a petition to amend the Charter.
49. By adding this onerous requirement that State statutes do not prescribe, San
Marcos violates Art. XI, § 5 of the Texas Constitution. By imposing onerous
oath and verification requirements for signatures on petitions to amend the City
11
000030
Charter, San Marcos is diminishing the powers reserved to the people in
violation of Article I, section 2 of the Texas Constitution.
50. Counterclaimants ask that San Marcos be enjoined from denying their
Constitutional right to seek amendment of the Charter by petition and that San
Marcos be ordered to place Counterclaimants’ Charter amendment regarding
fluoride on the ballot. See Andrade v. NAACP of Austin, 345 S.W.3d 1 (Tex.
2011).
VII.
DECLARATORY RELIEF
51. Pleading in the alternative, if as San Marcos contends, City Charter section
6.03 and/or Texas Election Code section 277.004 are correctly interpreted to
require Counterclaimants to submit charter petitions that are affirmed under
oath in order to establish the right to get a proposed charter amendment on the
ballot, Counterclaimants seek a declaration pursuant to Chapter 37 of the Texas
Civil Practice and Remedies Code that section 6.03 and section 277.004 as
applied to Counterclaimants are invalid as inconsistent with the First and
Fourteenth Amendments to the United States Constitution.
52. There is no indication of fraud or invalidity of the 1,634 already-verified
signatures that were submitted. In this context, to require these signatures to
be submitted under oath would serve no rational purpose. A requirement for
an oath or affirmation is not narrowly tailored to advance a compelling state
interest.
12
000031
53. Counterclaimants in addition seek a declaration that an ordinance putting the
anti-fluoride charter amendment on the ballot would be valid.
54. Counterclaimants in addition seek recovery from San Marcos of attorney’s fees
and costs incurred before this Court and any appellate court pursuant to
Chapter 37 of the Texas Civil Practice and Remedies Code.
PRAYER
For the reasons given above, Counterclaimants Communities for Thriving Waters
– Fluoride-Free San Marcos and Kathleen O’Connell respectfully ask the Court to grant
them the following: a writ of mandamus and injunction ordering Counter-Defendant City
of San Marcos to place Counterclaimants’ proposed Charter amendment on the
November 2015 election ballot. Additionally, but only in the event that the Court agrees
with San Marcos’ contention that City Charter section 6.03 and Texas Election Code
section 277.004 require Charter Petition signatures to be verified under oath,
Counterclaimants seek a declaration that Charter section 6.03 and Texas Election Code
section 277.004 are invalid as applied to Counterclaimants’ petition; attorney’s fees under
Texas Civil Practice and Remedies Code section 37.008; and any other relief to which
they may be entitled.
Respectfully submitted,
/s/ Brad Rockwell
Brad Rockwell
SBT No. 17129600
FREDERICK, PERALES,
13
000032
ALLMON & ROCKWELL, P.C.
707 Rio Grande St., Ste. 200
Austin, Texas 78701
(512) 469-6000
(512) 482-9346 facsimile
brad@LF-lawfirm.com
ATTORNEYS FOR KATHLEEN
O’CONNELL AND
COMMUNITIES FOR
THRIVING WATER –
FLOURIDE FREE SAN
MARCOS
14
000033
CERTIFICATE OF SERVICE
By my signature, below, I certify that on July 17, 2015, a true and correct copy of the
foregoing document was served upon the City of San Marcos via e-mail, as indicated, and
by deposit in the U.S. mail, in accordance with the Texas Rules of Civil Procedure, on the
other parties.
/s/ Brad Rockwell
Brad Rockwell
FOR THE CITY OF SAN MARCOS:
Michael J. Cosentino
San Marcos City Attorney
630 East Hopkins
San Marcos, Texas 78666
(512) 393- 8151
(855) 759- 2846 fascimile
mcosentino@sanmarcostx.gov
FOR SAM BRANNON:
Lynn Peach
174 S. Guadalupe Street, No. 101
(512) 393-9991
(888) 428-0468 facsimile
lynn@lynnpeachlaw.com
FOR MORGAN KNECHT:
Morgan Knecht
235 Craddock Avenue
Unit B
San Marcos, Texas 78666
15
000034
FILED
7/17/2015 3:35:28 PM
Beverly Crumley
District Clerk
Hays County, Texas
Appendix - B
000035
000036
000037
000038
000039
000040
000041
000042
000043
000044
000045
000046
000047
000048
FILED
8/4/2015 5:21:59 PM
Beverly Crumley
District Clerk
Hays County, Texas
CASE NO. 15-1266
CITY OF SAN MARCOS, TEXAS, §
Plaintiff and Counter-Defendant, §
§ IN THE DISTRICT COURT
v. §
§
COMMUNITIES FOR THRIVING §
WATER-FLUORIDE FREE SAN §
MARCOS, AND KATHLEEN § OF HAYS COUNTY, TEXAS
O’CONNELL §
Defendants and Counter-claimants, §
§
and §
§ 274TH JUDICIAL DISTRICT
SAM BRANNON and MORGAN §
KNECHT, §
Defendants. §
FIRST AMENDED COUNTERCLAIMS
OF COMMUNITIES FOR THRIVING WATER-
FLUORIDE FREE SAN MARCOS, AND KATHLEEN O’CONNELL
EXPEDITED CONSIDERATION IS REQUESTED.
TO THE HONORABLE JUDGE OF THE COURT:
COME NOW Communities for Thriving Water Fluoride-Free San Marcos
(“Communities”), and Kathleen O’Connell (collectively “Defendants” or
“Counterclaimants”), and file these First Amended Counterclaims against Plaintiff and
Counter-Defendant City of San Marcos, and in support therewith, respectfully offer the
following:
Appendix - C
000056
I.
NATURE OF THE CASE AND DISCOVERY CONTROL PLAN
1. Counterclaimants intend that discovery be conducted under Level 3, Texas
Rule of Civil Procedure 190.4.
2. Communities and Kathleen O’Connell submitted to Plaintiff and Counter-
Defendant City of San Marcos a Petition for an amendment to the Charter of
the City of San Marcos to bar the addition of fluoride to the San Marcos public
water supply (“Petition”) on April 1, 2015. Substantially more than 5% of the
voters within the City of San Marcos signed this Petition. The City of San
Marcos, however, has refused to submit the proposed charter amendment to the
voters as required by section 9.004(a) of the Texas Local Government Code.
3. The San Marcos City Clerk has refused to even count the signatures for the
Petition, taking the position that all the signatures are “invalid” because “none
of the petition papers contains an oath or affirmation.” As a matter of Texas
statute and the San Marcos City Charter, there is no requirement that petitions
for a City Charter amendment contain an oath or affirmation. Such a
requirement in this situation would be a violation of Article I, Section 2 and
Article XI Section 5 of the Texas Constitution as well as a violation of the First
and Fourteenth Amendments of the United States Constitution.
4. The City of San Marcos has filed a hysterical and punitive lawsuit against the
Defendants, and made allegations that are known to the City to be false. San
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Marcos has asked the Court to award it attorney’s fees for the costs San
Marcos has incurred filing suit against Defendants.
5. Communities and Kathleen O’Connell as Counterclaimants seek a writ of
mandamus and injunction ordering the Counter-Defendant to place the charter
amendment on the ballot for the November 3, 2015 election. They also seek
related declaratory relief.
6. Under the authority of §37.008 of the Texas Civil Practice and Remedies Code,
Counterclaim Plaintiffs hereby sue to recover their costs and reasonable and
necessary attorney’s fees in both the trial of this case and in connection with
any subsequent appeal.
7. Counterclaimants seek monetary relief of $100,000 or less and nonmonetary
injunctive, declaratory and mandamus relief.
8. The Texas Election Code requires general elections to be ordered not later than
the 71st day before Election Day. Applied here, the deadline for San Marcos
to order an election for the proposed Charter amendments is August 24, 2015.
9. For this reason, expedited consideration is requested.
II.
PARTIES
10. Counterclaimant Communities for Thriving Waters Fluoride-Free San Marcos
is an association created to cause Counter-Defendant San Marcos to stop
adding fluoride to its public water supply. Communities submitted the Petition
to amend the San Marcos charter to prohibit fluoridation. Most of
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Communities members are residents of San Marcos, registered and qualified
voters, and have signed the Petition. Most of the members of Communities
wish to vote for the Charter amendment in an election. Most of the members
are customers of San Marcos’ public water system. San Marcos initiated the
instant lawsuit by filing suit against Communities.
11. Counterclaimant Kathleen O’Connell is a member of Communities and has
submitted the Petition to San Marcos and she has been sued by San Marcos for
doing so. San Marcos initiated the instant lawsuit by filing suit against
Kathleen O’Connell.
12. Counter-Defendant City of San Marcos is a home rule Texas City and is
represented by the City Attorney in this lawsuit. San Marcos is the initial
Plaintiff in this lawsuit, having sued its citizens for submitting a City Charter
Amendment petition and asking the Court to judge these citizens liable for the
attorney’s fees resulting from the City’s lawsuit.
III.
JURISDICTION AND VENUE
13. This Court has subject matter jurisdiction pursuant to Texas Civil Practice and
Remedies Code section 32.003, Texas Government Code section 24.008, and
Article V, section 8 of the Texas Constitution.
14. Venue is proper in Hays County, Texas, under Sections 15.002 and 15.004 of
the Texas Civil Practice and Remedies Code.
IV.
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FACTS
15. Counterclaimants are aware of scientific research indicating that fluoridation of
the public water supply is detrimental to human health. Hundreds of cities
agree and have decided to stop adding fluoride to their public drinking water.
Among the Texas cities that have stopped adding fluoride to their waters are:
College Station, Alamo Heights, Elgin, and Lago Vista. Other cities who no
longer fluoridate their public water supply include Albuquerque, New Mexico;
Honolulu, Hawaii; Colorado Springs, Colorado; Spokane, Olympia, and
Bellingham, Washington; Davis, Redding, Santa Barbara, and Santa Cruz,
California; Portland, Oregon; Fairbanks and Juneau, Alaska; and Quebec City,
Windsor, and Calgary, Canada.
16. The City of College Station estimated a savings to its taxpayers of about
$40,000 attributable to the discontinuation of fluoridation.
17. Counterclaimants began discussions with San Marcos city officials in the year
2013 in an attempt to convince them to discontinue fluoridation of San Marcos
water.
18. On August 13, 2013, the San Marcos Executive Director of Public Services,
Tom Taggart, sent a memo to the San Marcos Mayor, City Council, and City
Clerk summarizing the requests being made by Counterclaimants. Among
other things, the Mayor, City Council, and City Clerk were informed by their
staff that Counterclaimant O’Connell’s and Communities’ goal was to “cease
fluoridation of the drinking water supply in San Marcos” and to stop “the
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addition of fluoride to the Public Drinking water supply.” Mr. Taggart also
informed the Mayor, City Council and City Clerk that Counterclaimants
wished to see the “Fluoride feed equipment.”
19. On August 13, 2013, the San Marcos Executive Director of Public Services
also informed the Mayor, City Council, and City Clerk that “a policy change
could result in the discontinuation of the treatment at any time” and that the
effect on the budget would be a savings in the annual cost to San Marcos of
fluoridation which amounted to $14,000.
20. Counterclaimants have never asked San Marcos to remove naturally-occurring
fluoride in the drinking water.
21. On April 2, 2015, Counterclaimants submitted to San Marcos a Petition with
over 2,000 signatures for a Charter Amendment to be placed on the ballot for
the consideration of voters. Counterclaimants pre-verified that at least 1,634 of
these signatures were of valid San Marcos voters. This number of voters
significantly exceeds 5% of the number of San Marcos registered voters.
22. If approved by the voters, the Charter Amendment would preclude San Marcos
from adding fluoride to its public water supply. The Petition was titled a
“PETITION to BAN FLUORIDATION in CITY OF SAN MARCOS
WATER.” The Charter language proposed by the Petition read:
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, including but not limited to the addition of
Hydrofluorosilicic Acid, Hexafluorosilicic Acid, Sodium
Silicofluoride, or any other fluoride derivative. The City of San
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Marcos shall not purchase, install, or allow the installation of
fluoridation equipment to be used in relation to the San Marcos
municipal water supply or its distribution system.
23. Nowhere in the Petition was there any request or requirement that San Marcos
remove naturally-occurring fluoride that sometimes is found in its source of
water.
24. On April 7, 2015, Counterclaimant O’Connell and Defendant Brannon met
with San Marcos City Manager Jared Miller. Mr. Miller asked multiple
questions about removing naturally-occurring fluoride. O’Connell and
Brannon responded to each of his questions, explaining carefully that neither
they nor Communities, nor the Petition ever mentioned or requested that
naturally-occurring fluoride be removed from San Marcos water.
25. The San Marcos City Clerk refused to even count the signatures on the Petition
submitted to her. On May 6, she announced that “none of the petition papers
contains an oath or affirmation [and therefore] none of the signatures may be
counted.”
26. On May 18, Communities and O’Connell sent a letter to the Mayor and City
Council of San Marcos asking them to place the Charter amendment measure
on the ballot as required by section 9.004(a) of the Texas Local Government
Code.
27. This request was again made on June 16, 2015.
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28. Counterclaimants made demand on the City of San Marcos to submit the
proposed charter amendment to the voters as required by section 9.004(a) of
the Texas Local Government Code. But the City of San Marcos has refused.
29. On or about June 18, 2015, the City of San Marcos filed suit against
Counterclaimants, Sam Brannon, and Morgan Knecht seeking declaratory
relief and a judgment asking Kathleen O’Connell, Sam Brannon, Morgan
Knecht, and Communities for Thriving Waters – Fluoride Free San Marcos to
pay the City’s attorney’s fees.
30. The City seeks a declaration validating the position it took with regard to the
alleged oath or affidavit requirement for City charter petitions.
31. The City also alleged that the Petitioned charter amendment
would prohibit the City of San Marcos from accepting …
naturally fluoridated surface water and groundwater … forcing
the City to find, finance and develop a new raw water supply or to
design and install equipment at its surface water treatment plant
and ground water wells in an attempt to remove all fluoride
derivatives….
San Marcos further alleged that the cost to the City of doing this would exceed
$97 million.
32. As a result of the filing of this lawsuit, these knowingly false allegations have
been repeated by the news media as if they were true.
33. The effect of these legally and factually baseless claims has been to cast the
Counterclaimants and their work in a false light, harm their reputations, and
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falsely prejudice the voters of San Marcos against this proposed Charter
amendment.
V.
MANDAMUS
34. Counterclaimants submitted to Counterdefendant City of San Marcos a Petition
for a Charter amendment containing more than 1,634 valid signatures of
qualified voters of the City of San Marcos, pursuant to section 277.002(a) of
the Texas Election Code and section 9.004(a) of the Texas Local Government
Code.
35. The number of these qualified signatures exceeded the requirements of section
9.004(a). Five percent of the number of qualified San Marcos voters is
approximately 964.
36. “When the requisite number of qualified signatures sign such a petition, the
municipal authority must put the measure to a popular vote.” Blume v. Lanier,
997 S.W.2d 259, 262 (Tex. 1999).
37. The City of San Marcos had a non-discretionary ministerial duty to put the
Charter amendment requested by the Petition on the ballot.
38. By refusing to place the Charter amendment on the ballot, San Marcos abused
its discretion.
39. Counterclaimants are entitled to immediate mandamus relief. Without the
issuance of a mandamus, Counterclaimants may not have a remedy at law.
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VI.
INJUNCTION AGAINST VIOLATIONS
OF ART. I, § 2 AND ART. IX, § 5 OF THE TEXAS CONSTITUTION
40. The city charter petition process implements Article I, section 2 of the Texas
Bill of Rights, which states that “All political power is inherent in the people.”
Green v. City of Lubbock, 627 S.w.2d 868, 871 (Tex. App. – Amarillo 1982,
writ ref’d n.r.e.).
41. The system of petitioning for a charter amendment “has its historical roots in
the people’s dissatisfaction with officialdom’s refusal to enact laws.” Green,
627 S.W.2d at 871. It is “the exercise by the people of a power reserved to
them.” Taxpayers’ Ass’n of Harris County v. City of Houston, 105 S.W.2d
655, 657 (Tex. 1937).
42. As a matter of constitutional law, all rights relating to submitting petitions for a
vote on a charter amendment should be liberally construed in favor of the
power reserved to the people. Taxpayers’ Ass’n, 105 S.W.2d at 657.
43. The law has long been that city charter requirements for amending a charter by
petition are different than the requirements for passing ordinances by initiative
and referendum. See Edwards v. Murphy, 256 S.W.2d 470 (Tex. Civ. App. –
Fort Worth 1953, dism’d).
44. The San Marcos City Charter has only one section, 12.11, expressly defining
the process for amending the City Charter. It is titled “Amending the City
Charter” and reads in its entirety:
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Amendments to this Charter may be framed and submitted to the
voters of the City in the manner provided by state law.
(emphasis supplied).
45. This section 12.11 Charter provision is consistent with Art. XI § 5 of the
Texas Constitution which says the “amendment of charters is subject to such
limitations as may be prescribed by the Legislature.”
46. San Marcos has transgressed this constitutional provision by imposing
signature validation requirements that are more onerous than what is
specifically prescribed by the Legislature – e.g. which are more restrictive than
and not consistent with Election Code section 277.002(a).
47. With respect to the Counterclaimants’ fluoridation petition, San Marcos has
taken the position that the criteria for establishing the validity of Charter
amendment petitions is not found in state law, but rather in a section of the San
Marcos Charter, section 6.03, which is not even mentioned by the Charter
section 12.11 entitled “Amending the City Charter.” Section 6.03 references
petitions for ordinances rather than Charter amendments.
48. Because the submission of signatures verified under oath is required to place a
citizen-initiated ordinance on the ballot, San Marcos takes the position that a
similar oath or verification is required for a petition to amend the Charter.
49. By adding this onerous requirement that State statutes do not prescribe, San
Marcos violates Art. XI, § 5 of the Texas Constitution. By imposing onerous
oath and verification requirements for signatures on petitions to amend the City
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Charter, San Marcos is diminishing the powers reserved to the people in
violation of Article I, section 2 of the Texas Constitution.
50. San Marcos has violated Counterclaimants’ constitutional rights by failing and
refusing to count the signatures on the submitted P for tition, and by failing and
refusing to place Counterclaimants’ petitioned Charter Amendment on the
November 3, 2015 election ballot.
51. The City’s failure to count the signatures on the Petition and its failure to place
the Charter Amendment on the ballot before August 24, 2014 tends to render
any other judgment for declaratory relief ineffectual.
52. Counterclaimants are entitled to injunction under principles of equity and the
law of Texas relating to injunctions.
53. Without injunctive relief, Counterclaimants will suffer irreparable injury by:
losing their right to vote on a Charter Amendment on November 3, 2015;
losing their rights to associate with others for the purpose of securing passage
of the proposed charter amendment on November 3, 2015; and all value of
their petition which was created, circulated and secured at great dedication of
irreplaceable time and significant cost.
54. Counterclaimants’ losses cannot be recovered in damages against San Marcos
because: a) San Marcos retains sovereign immunity from suits for damages;
and b) these losses cannot be fully measured by any certain pecuniary standard.
55. Counterclaimants ask that San Marcos be enjoined from denying their
Constitutional right to seek amendment of the Charter by petition and that San
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Marcos be ordered to place Counterclaimants’ Charter amendment regarding
fluoride on the ballot. See Andrade v. NAACP of Austin, 345 S.W.3d 1 (Tex.
2011).
VII.
DECLARATORY RELIEF
56. Pleading in the alternative, if as San Marcos contends, City Charter section
6.03 and/or Texas Election Code section 277.004 are correctly interpreted to
require Counterclaimants to submit charter petitions that are affirmed under
oath in order to establish the right to get a proposed charter amendment on the
ballot, Counterclaimants seek a declaration pursuant to Chapter 37 of the Texas
Civil Practice and Remedies Code that section 6.03 and section 277.004 as
applied to Counterclaimants are invalid as inconsistent with the First and
Fourteenth Amendments to the United States Constitution.
57. There is no indication of fraud or invalidity of the 1,634 already-verified
signatures that were submitted. In this context, to require these signatures to
be submitted under oath would serve no rational purpose. A requirement for
an oath or affirmation is not narrowly tailored to advance a compelling state
interest.
58. Counterclaimants in addition seek a declaration that an ordinance putting the
anti-fluoride charter amendment on the ballot would be valid.
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59. Counterclaimants in addition seek recovery from San Marcos of attorney’s fees
and costs incurred before this Court and any appellate court pursuant to
Chapter 37 of the Texas Civil Practice and Remedies Code.
PRAYER
For the reasons given above, Counterclaimants Communities for Thriving Waters
– Fluoride-Free San Marcos and Kathleen O’Connell respectfully ask the Court to grant
them the following: a writ of mandamus and injunction ordering Counter-Defendant City
of San Marcos to place Counterclaimants’ proposed Charter amendment on the
November 3, 2015 election ballot. Additionally, but only in the event that the Court
agrees with San Marcos’ contention that City Charter section 6.03 and Texas Election
Code section 277.004 require Charter Petition signatures to be verified under oath,
Counterclaimants seek a declaration that Charter section 6.03 and Texas Election Code
section 277.004 are invalid as applied to Counterclaimants’ petition; attorney’s fees under
Texas Civil Practice and Remedies Code section 37.008; and any other relief to which
they may be entitled.
Respectfully submitted,
/s/ Brad Rockwell
Brad Rockwell
SBT No. 17129600
FREDERICK, PERALES,
ALLMON & ROCKWELL, P.C.
707 Rio Grande St., Ste. 200
Austin, Texas 78701
(512) 469-6000
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(512) 482-9346 facsimile
brad@LF-lawfirm.com
ATTORNEYS FOR KATHLEEN
O’CONNELL AND
COMMUNITIES FOR
THRIVING WATER –
FLUORIDE FREE SAN
MARCOS
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CERTIFICATE OF SERVICE
By my signature, below, I certify that on August 4, 2015, a true and correct copy of the
foregoing document was served upon counsel to all parties City of San Marcos via e-
service e-mail in accordance with the Texas Rules of Civil Procedure
/s/ Brad Rockwell
Brad Rockwell
FOR THE CITY OF SAN MARCOS:
Michael J. Cosentino
San Marcos City Attorney
630 East Hopkins
San Marcos, Texas 78666
(512) 393- 8151
(855) 759- 2846 facsimile
mcosentino@sanmarcostx.gov
FOR SAM BRANNON:
Lynn Peach
174 S. Guadalupe Street, No. 101
(512) 393-9991
(888) 428-0468 facsimile
lynn@lynnpeachlaw.com
FOR MORGAN KNECHT:
Craig Young
108 E. San Antonio St.
San Marcos, Texas 78666
(512) 847-7809
(512) 353-1219 facsimile
cyoung@lawyer.com
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