Early last week, in the latest chapter of what is
becoming a sprawling San Antonio epic, we visited New Orleans to see
how the International Women's Day March and Coalition would fare
against the City of San Antonio in their fight to the death over the repeal of parade
ordinance fees, an argument taken up last Tuesday by the Fifth Circuit Court of Appeals, headquartered in the Big Easy.
These pivotal discussions, acted out live in a 40 minute oral argument in front of a three judge panel, sought to determine whether to remand back to district court the lawsuit alleging the City violated San Antonians' First and 14th amendment rights by charging would-be parade holders for the use of public streets. To the plaintiffs, the argument is a Dickensian classic about the rich and powerful maneuvering the levers of government at the expense of the poor and weak. To the defendants, it's an unsubstantiated yarn meant to further the unrealistic goal of allowing unfettered parading and demonstrating on the City's strained tab. Either way, don't be surprised if there's a few more pages left before the conclusion.
The International Women's Day and Coalition supporters arrived in New Orleans the Sunday prior to oral arguments via a cushy charter bus, ostensibly to drum up community support for their plight. That wasn't too difficult since among the wounds plaguing post-Katrina New Orleans was a surprising leap in "escort fees" charged by New Orleans Police Department to that city's beloved Second Line processions. Between 2005 and 2006, the police presence fees assessed to these public parades shot up from $1,200 to $3,790, claimed the ultimately successful ACLU lawsuit brought against the City of New Orleans in late 2006. Three years ago, almost to the day of this oral argument, a federal judge found in favor of the ACLU, and reduced the fee to just above its 2005 level. "That's a parallel," said Wendy O'Neill, a New Orleans resident and social justice activist with the Safe Streets, Strong Communities. O'Neill's organization and several others joined with the International Women's Day March for a community talk and press conference.
With that morale boost, attorney Amy Kastely, a St. Mary's University Law professor recruited by the plaintiffs, made her first presentation before the Fifth Circuit Court of Appeals. Devoted court watchers noted that the plaintiffs scored a coup with Clinton-appointee Judge Fortunato Benavides leading the panel, who has previously opined in favor of the little guy in well-known cases Texas Democratic Party v. Benkiser and Burdine v. Johnson. Indeed, the Hidalgo County native further excited the plaintiffs, represented not only by Kastely but also at least 25 well-wishers from San Antonio and New Orleans in the audience, by honing in on one of their least favorite characters, Judge Fred Biery. As close readers will remember, San Antonio district judge Biery dissolved the preliminary injunction halting the City's ordinance and new fees, originally put in place by Judge Xavier Rodriguez, who later recused himself. Biery also granted the City's motion for summary judgment, effectively throwing out the International Women's Day March's lawsuit. On March 31, 2009, Biery wrote of the preliminary injunction, "the Court has thoroughly reviewed the record before it and finds the constitutional defects that lead to the issuance of the preliminary injunction in this case no longer exist," on the basis that the City had amended its original parade ordinance to attempt to check the discretion given to the San Antonio Police Department regarding how much to charge parade and demonstration organizers for traffic control and clean-up costs. On June 30, 2009, in a scant three pages, Biery dismissed the lawsuit entirely, with a jaunty "plaintiffs are advised to apply for permits early in order to avoid last minute egg beater pleadings." In both, he referred extensively to Rodriguez's initial grant of the injunction and the City's remedial efforts, but stopped short of addressing the original complaint.
Were Biery's orders conclusive enough to drop the Free Speech issues at hand? That's what Benavides wondered: "We don’t have an opinion from the district judge," said Benavides, baffled. "We have kind of an interesting order where [Biery] grants the summary judgment based on the arguments that were presented before him. Does that mean that he’s found all the arguments that the city made persuasive?" A summary judgment can only be issued if the judge determines there is no "genuine issue of material fact," according to the federal rules of civil procedure. Benavides and his fellow panel judges, Leslie Southwick, appointed by George W. Bush, and Carl Stewart, another of the three Clinton appointees to that court, seemed skeptical Biery's motion satisfied that requirement. "It might have been burdensome for both sides to defend or attack a judgment that I'm not too sure why it occurred," said Benavides before also pondering how one can use an order granting a preliminary injunction to justify a motion dissolving the injunction.
Should the case get remanded based on this procedural gripe alone, the City may find itself defending the government speech argument that has been its primary reasoning behind why waiving fees for popular events the Martin Luther King Day March, Dies y Seiz parade and Veteran's Day parade, but implementing them for most other "first amendment events," is not content-based discrimination. The City's argument, consistently and succinctly put forth by City attorney Deborah Klein, claims that a government entity can "engage in and support speech of its own without triggering a requirement to fund other speech." However, all three of the panel judges questioned the appropriateness of applying that reasoning to events which are only supported by the City insofar as it waives parade fees. "Those three events have cultural and historical significance to us, that is clearly governmet speech," said Klein. "It's a government-approved parade, but how is that actual speech?" asked Benavides, noting that generally government speech cases involve a measure of government control. "You may support the idea, but you're not controlling that message. You have a whole bunch of voices in that. You don't control the signs they can wave, there's not a common slogan that the City tells them how to do," Benavides said, with Southwick and Stewart echoing his line of questions.
That doesn't mean the writing is on the wall for the parade ordinance, however. When Benavides abruptly asked Klein, "Let's assume this court has a dim view of the government speech argument, how do you defend this case notwithstanding that?" Klein delivered her zinger: "there's no evidence of an event being barred." It's true, there's not a case of a group applying for a parade permit and being rejected, partially because the injunction motion to hold up the ordinance was filed just a day after the ordinance was crafted. Klein also maintains that the changes the injunction order originally recommended helped the City to develop a standard operating procedure encouraging the police department to work with event holders in getting their fees down to a manageable sum and refraining from invoicing an organizing group until after their event is held. After the oral arguments, responding to a question from a La Voz de Esperanza reporter, Klein even seemed to suggest there would be no punitive action if a parade ordinance fee was never paid. "A speech event can occur and not a dime be paid," Klein told the panel judges. Marisa Gonzalez, a longtime participant in the International Women's Day March, remained skeptical. First, she says, their marching route is chosen based on what they believe will be the most visible to pedestrians, so alternative, cheaper routes may not achieve that goal, as she claimed the alternatives presented to 2010's International Women's Day planning committee did not (they wanted to march the wrong way down a one-way street, requiring more police traffic control). Secondly, if it's not totally necessary to pay for a parade ordinance, why charge at all? "Putting a price on something, that essentially tells me that it is not free," she said.
At this point, QueQue can see both sides of the argument and expect to hear more of them, if not at district court, then through a Supreme Court appeal. Naturally, we dislike chilling effects, but what the First Amendment guarantees is speech that's free as in freedom, not free as in no-cost. Just think what would happen with the Second Amendment if the no-cost logic was applied.
Matt Ahern has been installing gardens around San Antonio on a pay-per-lot basis for years as the founder of Garden Start. He's also roped dozens of businesses into his “green” company directory with EchoTown a for-profit effort intended to make smart ecological decisions pay off for local companies and himself.
Now, in what he hopes will be his first non-profit venture, he's hoping to put A Garden in Every Home. Through gardening workshops, homeowner consulting, and an easy replicable program, Ahern hopes to give home gardening a kick in the overalls in San Antonio.
“To teach a man to garden would be to give them the ability to have the most economical and healthy food at the same time without assistance from the outside other than to get seeds,” he said shortly before hosting his first training workshop last Sunday.
It's a good time to push home gardens. A report by the National Gardening Association last year found home gardens were expected to grow by 20 percent nationally that year. Better taste, lower cost, and health benefits were the most-cited reasons given by homeowners breaking ground for the first time.
While only a a handful of interested residents showed up to hoe a row at Ahern's urban plot as Fiesta burned to a close, at least one of those was anxious to get her skills up.
“With this knowledge I plan to actually grow my own garden at home and start producing the fruit at home,” said Elizabeth Rodriguez, a student at Our Lady of the Lake University. “It's all new information.”
Nick Keel, another experienced local gardener, led the workshop.
With the Roots of Change Community Garden entering spring flower in the back lot, activists and organizers inside the Southwest Workers Union Commerce Street office are deep at work melding the worlds of urban gardens with their long-standing press for environmental justice.
At a Saturday afternoon workshop at the Collins Garden Library, a handful of residents batted about notions of “food justice” with two SWU organizers and how it relates to hunger, health, and personal wholeness. Ideas gathered into the inevitable question of what drives our continued reliance on industrially produced foods that are at the heart of San Antonio's inequitable struggle with diabetes and obesity.
"If the Earth is sick, then we're sick," said Marisol Cortez, SWU's climate justice organizer. "Who is making these choices for us?"
Breaking into two groups, the 10 attendees shared their personal observations about the difficulty of finding healthy foods in the urban core along with concerns over the remote, large-scale production of food, in general.
After 20 minutes or so it became clear that even something as innocuous as a garden can become a sign of the struggle.
SWU food justice organizer Diana Lopez described those who engage in gardening this way: "They're sort of taking power, putting it in the earth, and back into themselves. … You don't have to go to Central Market to buy more expensive foods then what you have right in your neighborhoods."
One participant waxed poetic about notions of labor and the mind-altering experience to be had by engaging the land. "You think of work as having a job, clocking in, getting a paycheck,” said Donnie. “Whenever you're working with nature, nature goes at its own pace. It feels more gratifying. Everything just slows down and you're more in touch."
Gardens are one thing in bucolic suburban settings, but they become something else flowering in the face of decades of concrete and asphalt intended to lock them out.
That resistance gets even more radical when it threatens to transcend boundaries of land ownership. Cue the seed bombs.
Just a few moments ago, at the Mexican-American Legislative Caucus hearings on the Texas State Board of Education, Dr. Michael Soto managed to shock a group of people who thought they'd heard it all when it comes to the SBOE's ridiculous overreach into Texas public education. Soto, a Trinity University professor and the Democratic candidate for SBOE district 3 (that's most of us in SA, and much of the Valley to the South), claims one of the TEKS social studies standards the SBOE is considering is plagiarized from a UCLA Graduate School of Education web site and wikipedia.com. Of course, this isn't just any boring old TEKS, this happens to be about American exceptionalism, a standard submitted by outgoing SBOE member and former chairman Don McLeroy, a dentist from Bryan and one of the most active ultra-conservatives on the Board. The concept as presented by McLeroy would be taught in U.S. History since 1877, offered during high school, and focuses mainly on American values compared to those of other nations (no comment in the standards as to what those other values may be) and how U.S. citizens abroad represent these values abroad (perhaps during a military campaign for other peoples' hearts and minds?). What initially caught Soto's eye was the assertion that these values are described by Alexis de Tocqueville, which didn't sound right to the English professor and self-proclaimed cultural historian (backed up by his extensive writings on American modernism). He claims to not have found three of the five values listed by McLeroy anywhere in Tocqueville's Democracy In America. His digging to find the sources attributing the values of "laissez-faire," "egalitarianism" and "populism" brought him to the obscure UCLA web page which also draws on American Exceptionalism: A Double-Edged Sword by Seymour Martin Lipset, leading him to notice word-for-word lifting from that website, and more embarrassingly, from wikipedia.com.
Specifically in the High School Social Studies TEKS draft, standard 22 reads:
(B) describe U.S. citizens as people from numerous places throughout the world who hold a common bond in standing for certain self-evident truths;
(C) discuss Alexis de Tocqueville's five values crucial to America's success as a constitutional republic: liberty, egalitarianism, individualism, populism, and laissez-faire.
(ed. note: see wikipedia page between citations 17 and 18, see UCLA American Exceptionalism page, see item 2)
Granted, the entire standard is 69 words long, so we're not talking about a lawsuit. It's just, as Soto said, "shoddy scholarship," for which most Texas students would be swiftly punished.
As we round out the time of Fools and Fiesta, we thought we'd end on a
more serious note: The National Sexual Violence Resource center has
named April Sexual Assault Awareness month. The Sex Crimes Unit of San
Antonio Police Department is more than aware of sexual assault, and has
recently taken steps to attempt to alleviate one of the more pernicious
outcomes of sexual violence, the sexual assault cold case. According to
supporting documents City Council used last month to authorize SAPD to
pursue a National Institute of Justice grant to fund DNA analysis on
cold cases, San Antonio currently has 5,200 sexual assault cold cases.
That's 5,200 cases in which someone complained of a sexual assault,
cooperated with investigators and saw the case closed, after 45 days,
because the Sex Crimes Unit had "exhausted all investigative leads"
according to a spokesman for the San Antonio Police Department. That's
not at all uncommon for this type of crime, says Tory Camp of the Texas Association Against Sexual Assault. Camp says
there are two types of sexual assault, that where the attacker is known
and that where the identity is unknown. Situation A, the much more
common one, can go cold because the alleged atacker claims it didn't
happen or claims the sexual contact was consensual and there's little
evidence to support the victim's side of the story. In Situation B,
investigators simply fail to find the attacker whatsoever. Camp says in
both situations witnesses are rare and receiving a Sexual Assault Nurses
Evaluation (the SANE test) withing 96 hours is crucial. Many sexual
assault allegations don't make it to the prosecution stage, handled here
through the Bexar County District Attorney's office, says Camp, and
only 20 percent of rapes are ever reported to law enforcement
The National Institute of Justice, part of the federal Department of Justice, believes investing in DNA analysis can help solve not only homicides (of which San Antonio has 1,200 on their books), but also violent sexual assaults. The NIJ writes in their grant solicitation, "Experience has shown that cold case programs can solve a substantial number of violent crime cold cases, including homicides and sexual assaults. Advances in DNA technologies have substantially increased the successful DNA analysis of aged, degraded, limited, or otherwise compromised biological evidence." Nothing puts the he said/she said argument to rest like a conclusive DNA sample. The SAPD would use the $800,000 grant to fund overtime for detectives analyzing and investigating the cold case backlog, forensics experts to assist both Homicide and Sex Crimes investigators and DNA testing fees. As it stands, homicide has two full-time detectives dedicated to cold cases, while Sex Crimes assigns cold cases to its 38 detectives "on an available basis" according to the City Council document. The same document estimated each detective works on 15 felony sexual assault cases per month, leaving QueQue to infer the detectives log few idle hours to devote to cold cases. We asked if the many cold cases in Sex Crimes could mean the department was understaffed, but SAPD asked to defer that answer until a commissioned staffing study was completed. The department will learn if they've received the grant later in the year, likely in June when the NIJ archives the grant solicitation (applications closed March 12).
Meanwhile, don't hesitate to get help if you think you're the victim of rape or sexual assault. Call the local Rape Crisis Center hotline at 210-349-7273 or the National Sexual Assault Hotline at 1-800-656-HOPE. As evidenced by the sad sexual assault cold case numbers, in these investigations, time is of the essence.
The first voter registration drive by a local organization inside Bexar County Jail wrapped up last week, ensuring that several hundred absentee ballots will be headed into the jail become November.
“We wanted to make it possible that inmates serving misdemeanor sentences and those that haven’t gone to court yet are able to exercise their Constitutional rights,” said Antonio Diaz, of the Texas Indigenous Council, who led the effort.
Diaz hopes to return closer to the general election in November and later expand the effort to other county jails around the state to make sure the poor are not wrongly penalized by being denied a chance to vote. “If you’re too poor, you cannot bail out, so you’re serving over a year’s time waiting for court,” Diaz said.
Meanwhile, the Bexar County Medical Examiner’s office has ruled a January in-custody death at the jail was the result of natural causes.
43-year-old Ricardo Guzman died two days after turning himself in for a drug-related offense. He was detoxing off of heroin, according to jail records released to the Current today through an Open Records request.
The Bexar County District Attorney’s office had attempted to withhold an inch-high stack of documents related to Guzman, but was ordered to release them by the Texas Attorney General’s office.
I wrote in January:
Unprecedented raids in Arizona coupled with a failure of the Obama Administration to spell out its stance on immigration reform are fueling unease in Latino communities around the county. In San Antonio, those twin forces of intimidation and uncertainty will likely inspire more than a few of the marchers expected to gather at Milam Park (also known as Plaza del Zacate) on May 1 for International Worker’s Day.
Jaime Martinez, national treasurer for the League of United Latin American Citizens, compared the climate in Arizona today to that of the early Nazi regime in Germany.
“I’m seeing a move to militarization of the Mexican border. I’m seeing a move to violate the Constitution, and human, and civil rights of the immigrant families,” Martinez said.
Last week, U.S. Immigration and Customs Enforcement agents swept into four Arizona communities in a coordinated raid as part of “Operation in Plain Sight.” It was billed as the largest dragnet operation in ICE’s history and involving more than 800 agents from a variety of agencies.
Though it targeted shuttle-van operators thought to be a key element in illegal human trafficking operations in the region, several human-rights groups complained the raids created ripples of fear throughout the migrant community — especially as it came after passage of an Arizona law that would allow police in the state to use “reasonable suspicion” as cause to request proof of citizenship.
“I’m calling all the organizations — LULAC, labor, civil rights — to write to President Obama to sign an executive order to stop the deportations, to stop the raids, to stop the separation of families,” Martinez said. “Sooner or later, they’ll be knocking on my front door and asking for my papers. We can not get into that environment in America.”
In a prepared release, Christian Ramirez of the American Friends Service Committee said “entire communities were terrified by the war-type operations they suffered in their neighborhoods. … If the Administration is serious about getting to the root of the immigration dilemma, Obama should change U.S. trade policies.”
This year’s May Day March in San Antonio is being called a “Day of National Unity for Immigration Reform NOW!” Plead your case by gathering at Milam Park at noon on May 1. The march is scheduled for 2 p.m.
For more information, call the Cesar E. Chavez Legacy Educational Foundation at 226.2301.
I don’t know if any of you have noticed, but every once in a while we print something here at the Current that gets some of our more rigid residents all bent out of shape.
Such was apparently the case after we first wrote about Lucky the Asian elephant, held captive at the San Antonio Zoo. Since filing that report, in which we sided with those advocating Lucky be released to a sanctuary, SAZ Director Steve “The Tusk” McCusker has refused to speak with us.
One of our reporter’s was recently denied an interview at the zoo, and no one bothered to even return our inquiry about a new elephant coming to Alamo City yesterday.
In cases such as this, what are we to do but rob and pillage the intrepid reporting of the daily's staff?
After you have read our last post about Queenie/Boo being surrendered to the zoo, and understand the terms of that exchange, consider the following comments from the Express:
Please pardon a moment of third-person bragging; now and then we like to remind the (totally lovely Irish-Catholic progressive) suits who sign our checks why they pay us.
The San Antonio Current took home first-place honors in two categories April 16 at the SPJ Fort Worth First Amendment Awards. Staff writer Greg Harman’s three-part series Nukes of Hazard was tapped for Investigative Reporting in the 50,000-and-under circulation category.
“The winner in a very competitive category,” said the judges. “Exhaustively researched and well written, ‘Nukes of Hazzard’ explored a topic that requires such depth.”
Harman’s in-depth examination of San Antonio's proposed nuclear-plant expansion has also been recognized by the Natural Resources Defense Council journal On Earth, and the Lone Star Sierra Club named him environmental reporter of the year. Last year, he took home the top prizes in Fort Worth for Investigative Reporting and Defending the Disadvantaged.
Current Editor Elaine
Wolff was recognized a second year in a row in the First Amendment Awards' Opinion and Commentary category for “well-researched
work [that] gives the residents of a disadvantaged community a voice they
otherwise would not have had” for her set of columns about last year’s proposed
Healy-Murphy Park sale. Her story about a City cover-up of jail-abuse complaints
that was discovered and then buried by the Hearst-owned daily was a finalist in
the Investigative Reporting category.
All right: back to work!
Few things compel me to write in the first person, but go ahead and
google 'police and sexual assault.' Below the entries relating to police
units that deal with sexual assault, there should be about five
entries on the first page alone concerning police officers who were
charged and/or convicted of committing sexual assault. Just
today, USA Today reported an alleged sexual attack by a supervisor of a sex
crimes investigation unit in Pennsylvania on a 23 year-old woman
with whom he was volunteering at an Emergency Medical Services center.
Oh the sick, sick irony.
Today I also learned more about San Antonio Police Department's Officer Gabriel Villarreal, who I have nicknamed "Creepy Cop." I first heard of Creepy Cop when the Express-News reported that he was accused of improperly pursuing a woman by staging a response to a 911 call that the woman claimed she never made. Turns out he had met her the day before while he was shopping at La Cantera with his wife and daughter. The woman sold him some shaving products, and then there he was the next day on her doorstep at 8:30 a.m., asking if she had a husband and making her uncomfortable. Initially it was almost humorous, some desperate cop stupidly abusing his authority and getting called out on it by the woman, who smartly reported the sketchy incident to SAPD internal affairs. Today's follow-up story however, paints a much more disturbing picture. Not only had Creepy Cop definitely used police department resources to freak out the salesgirl of his dreams, he repeatedly used police information from cell phone records to vehicle registration to cull personal details about seven different women, from their home addresses to their father's names, during a three-month period last year.
Thus far, Villarreal stands accused only of using SAPD resources to be a really creepy guy, which is more than enough reason for his department to can him, which they've already done. But his actions throw into question SAPD's tolerance of such blatantly sexist behavior among members in its force. Along with Villarreal, two other officers have been disciplined for discussing Villarreal's pursuit of two of these women and making sleazy comments with him about other women. Immediately, the story reminded me of an even more disturbing case I reported on a couple of years ago. I covered the trial of Jimmy Fennell, Jr., a Georgetown, Tex. police officer who was eventually convicted of kidnapping and improper sexual activity with a person in custody for allegedly raping a woman involved in a domestic dispute call he answered. Fennell is now in prison, but serving a much lighter sentence than he might have had Georgetown Police Department not bungled the investigation. There were even allegations that Fennell tampered with evidence after he was alerted to being under internal investigation.
The Villarreal story reminded me of Fennell because during the trial, it came to light that Fennell had offered to waive a traffic ticket of a woman if she would give him a lap dance. She filed a complaint with the Travis County Sheriff's Office in 2004. Yet in 2007, Fennell was still working, feeling confident enough to demand sexual favors from the woman involved in the domestic dispute. In fact, she had called the police department to report the rape immediately after it occurred and was then shocked to find Fennell respond to that call as well. As a woman, I wondered when Eli Roth would mine this story for his next horror film, because I can imagine few things more terrifying than being in a domestic dispute, calling the cops, getting raped by the cop who said he would help me, calling the cops again, and discovering the one sent to "serve and protect" me is none other than the same rapist. Villarreal's story is a little less frightening, but only because it (hopefully) ends with his sad semi-stalking. No woman, let alone no citizen, should ever have "rape" or "stalking" included in possible outcomes of their interactions with a government department created to make them feel safe.
Little things, like officers feeling free to discuss their civilian sexual fantasies or proclivities while on duty, also allow officers to feel free to use their on-duty resources to further those fantasies' fulfillment, like demand a lap dance during a traffic stop, or visit a hottie's house on trumped-up official business. These bad officers, who drag the truly good officers through the mud during these scandals, feel comfortable enough sharing their antics with fellow officers, as Villarreal did, or asking them to cover for them when shit goes down, as Fennell did, to falsely believe that they are above the law they are sworn to uphold. Kudos to the San Antonio Police Department for making an example of Creepy Cop and his cohorts, but I hope they go a few steps further in eradicating any signs of the permissive professional culture that allows any officer to think for one second that they can use their power to abuse citizens' rights for their own illicit gain.
I contacted the SAPD about their policies concerning behavior like Villarreal's, asking for specific code of conduct or training that relates to using police equipment for personal reasons and their policy toward the several inappropriate sexual remarks made by Villarreal turned up by their own internal investigation, and whether they plan to review these policies in light of the Villarreal investigation. I await their specific answers and hope to update soon.
UPDATE: Thus far, the SAPD's answers have not been as specific as I'd hoped, but they are working on getting several documents I requested. SAPD Public Information Officer Matt Porter did call to make sure "we're on the same page" when talking about Villarreal's conduct and the department's response. Via e-mail, I asked several questions directly about the way SAPD officers are trained about sexual harassment (specifically what they call "external," meaning of civilians, not of other officers), can report sexual harassment or related questionable behavior, are punished if found to be engaging in improper sexual behavior on or off work. What I gleaned from Porter during our call is that this matter is not officially one of sexual harassment. His department stated "Police terminals are to be used for police related matters only and not for personal use," in explanation of their measures to prevent actions like Villarreal's from occurring. So, thus far, Villarreal's punishment seems to stem not from the reported "crude, suggestive, disparaging" remarks (h/t Express-News) Villarreal engaged in with his co-workers via electronic communication on their terminals (laptops in laymen's terms), but the fact that he discussed any non-police business on the official equipment at all.
District 7 Councilman Justin Rodriguez wants to close most of the remaining loopholes in the City's 2003 smoking ban, making it illegal to smoke in bars and restaurants that are currently exempted by the code. He told the QueQue Tuesday that the Mayor had committed to the project and he could have a five-signature memo filed as early as tomorrow. We'll have details for you asap.
"It's a public-health issue," Rodriguez said, citing both the "additional adverse effects" of smoking while drinking, and the long-term consequences for employees who work in smoking establishments. As for the argument that those workers can choose to earn their wages somewhere else: "Well, sometimes that's just not the reality; sometimes those are the only jobs people can get, especially right now."
Rodriguez said he hadn't yet spoken with representatives of the restaurant industry, but he had heard they would be amenable to tightening the regulations if Council is flexible about continuing to allow outdoor designated areas. He expects the biggest resistance to come from bars, and mentioned the possibility of continuing to exempt cigar bars.
Rodriguez cited cities such as New York and Houston that have instituted broad bans as evidence that it won't kill the local food-and-drink industry. "I think the gut reaction is, we're going down the tubes," he said, "but that was part of the sky is falling argument in 2003.
"I don't think we're going to see ultra lounges opening in Schertz because you can't smoke in San Antonio."
Yolanda Arellano, executive metro director for the San Antonio Restaurant Association, disagrees. "Everybody has to be on the same plane," she said, listing some of SA's many embedded and adjacent incorporated townships. To that end, she says, SARA has been working with the organization's Texas parent chapter to lobby for a statewide ban.
"If you're going to do it at the city level, at least help us out and not give other cities the advantage," she added. "Are they talking to [nearby cities], or are they just talking to San Antonio?" (She doesn't know offhand which of our many sibling cities has smoking bans, if any.)
Arellano says she's meeting with Rodriguez on April 27. Among the worries it sounds like she'll be conveying: It's a tough time for an industry that runs on 3-4 percent margins and is still suffering through the lingering effects of the recession.
"It's not like we're not concerned," she said. "Of course we want healthy customers."
A settlement between the USDA, an East Texas elephant exhibitor, and the San Antonio Zoo last week suggests our zoo’s sole remaining elephant isn’t going anywhere anytime soon. Efforts to pressure the San Antonio Zoo into releasing Lucky to a sanctuary have dragged on ever since her half-acre exhibit-mate Alport died in 2007.
Last Friday, Wilbur Davenport of Maximus “Tons of Fun” LLC signed away his last remaining elephant to the San Antonio Zoo to stave off federal charges of Animal Welfare Act violations and cut a $100,000 fine down to $15,000.
While it’s nice “Queenie” will soon be receiving experienced medical care away from the roadside-circus circuit, here’s the rub: Queenie was a stroke away from being sent to a elephant sanctuary to live out the rest of her life away from prying eyes and access to hundreds, if not thousands, of wild acres before the zoo pounced.
It was Monday, April 12, that San Antonio resident Kerrie Kern of the Zimbabwe Conservation Task Force was negotiating a deal with Davenport to ship Queenie to one of two U.S.-based sanctuaries. One of Davenport’s stipulations during that phone conference was for visitation rights, Kern said.
“He wanted visitation, a couple other different things. I told him, ‘Let me work on it.’”
By the time she bagged the needed concessions from both the Performing Animal Welfare Society and The Elephant Sanctuary in Hohenwald, Tennessee, and called him back, he was apparently entertaining other offers.
“I called him Tuesday morning to tell him, ‘Hey, we got everything that you asked for. It’s set in motion, pick your place,’” Kern said. “Wednesday, he was supposed to talk to an attorney out in D.C. and he was supposed to call me back. He never called me back. Then I got word the settlement was signed on Wednesday afternoon.”
The consent decision was approved by an USDA administrative law judge on Friday.
While Davenport and San Antonio Zoo Director Steve McCusker failed to return calls for comment today, McCusker told the Current way back in 2007 that Asian elephants like Lucky and Queenie don’t figure into the long-term plans of the Zoo with the "Africa Wild" expansions underway. [And that’s only one of the things riling local protestors.]
If the San Anto zoo is a "less bad" outcome for the East Texas sideshow super star, a better less-bad improvement would be to reunite her with her two former colleagues, Tina and Jewel. They were seized by the USDA from Mr. Maximus last summer and shipped to the San Diego Zoo.
Even back then McCusker was prowling. “The zoo made an offer when the other two were confiscated,” Kern said. “They offered him ten grand.”
The current USDA settlement does not state if Davenport is receiving compensation for “Queenie,” so it is possible the San Antonio Zoo just picked up Davenport's USDA tab. Darn nice of 'em, if true.
Meanwhile, an online petition has been launched on Change.org and calls are rolling up to the USDA. So far, San Antonio Mayor Julián Castro’s office has been spared, according to one employee there, but it’s likely the Free Lucky contingent will be working around the clock to put him and other local leaders in the glare of the spotlight soon enough.
“This is a highly unacceptable exhibit for one elephant,” Kern said. “It’s unconscionable to bring in another one.”
You can read the consent decree below:
From the files of Obscure Safety Ordinances With Expensive Fines comes a
one unanimously passed by City Council on April 8. (If by 'new,' we
mean 'something that has been a part of the
Texas Transportation Code since 1995,' but that's our edgy city
council for you). The ordinance in question amends the city code to
"require the proper use of bicycle lighting equipment when operating a
bicycle at nighttime by incorporating language contained in the Texas
State Transportation Code into the City Code." What the Texas
Transportation Code considers proper is a white light on the front
visible from 500 feet, or the length of 1.5 football fields, plus a red
lamp/reflector on the back visible from 50-300 feet. Nighttime means 30
minutes after sundown or before sunrise. Failure to outfit your bike
with the appropriate light/reflector combo could result in a fine of up
to $200 under the penal code's punishment for Class C Misdemeanors.
That's on top of the shame of being pulled over for bad bike behavior
AND the threat of unpunished death/serious injury when Bubba in his
doolie truck rams into your cruiser at night and gets away scot-free
because your dumb ass didn't already have a light.
Lighting up your bike is a pleasantly cheap and easy process. Bike World has smart little LED lights with 2,000 feet visibility for about $13 which affixes to handlebars via an elastic strap. Bicycle Heaven in Stone Oak says they have moved more of their slightly fancier lights (with colored straps!) for $15 since news of the City Ordinance. The hipsters over at The Blue Star Bike Shop recommend the very cool Knog Frog bike lights at $20 a pop for front or back. Or you could spring for a $500 600 LED version by Niterider. Whatever spins your wheels.
If the price of a matinee movie and popcorn is too much to spend on your bodily safety, perhaps Texas Bicycle Coalition can help. As major proponents of bike safety, the non-profit lobbying group has applied for a TXDOT grant to provide 5,000 lights for free to "non-discretionary" riders around Texas says TBC's Robin Stallings. They won't know until June whether they'll be awarded the grant. Assuming it goes through, people who must commute by bike because they have no other public or personal transportation options will be eligible to receive safety lights for free. Stallings said this could particularly help bikers in the service industry since they most frequently commute after dark. District 9 Council Chief of Policy Thomas Marks, who helped council member Elisa Chan usher in the ordinance, said his office hoped SAPD would dole out the free bike lights instead of tickets to first-time offenders.
You may as well spring for the lights ASAP since enforcement of the ordinance is already in full effect under the state's transportation code says Julia Diana, in charge of San Antonio Bikes for the City's Office of Environmental Policy. "The [police department] can write you a traffic ticket...if they can see you," she says, though Marks said enforcement prior to the city ordinance was limited. San Antonio Bikes and District 9 introduced as a way to garner media attention (success!) and educate bikers about safety gear, much like the Safe Passage ordinance passed in February educated drivers about safe ways to pass those who chose to move without the help of a motor and four wheels. Both ordinances fit into San Antonio Bikes' Bicycle Master Plan, which you can learn more about next month during the San Antonio-Bexar County Metropolitan Planning Organization's Walk and Roll Fest at Hemisfair Park on May 15.
Now that we have you savvy cyclists' attention, note that The Current is accepting submissions for a new monthly column about life on two (feet-powered) wheels. Per our Arts associate editor Sarah Fisch, we're looking for essays about all aspects of bicycle life: urban cycling, group rides, bicycle maintenance, funny/scary/interesting personal experiences, the City's changing bike landscape, etc. Send submissions to email@example.com.
Leaks of radioactive fluids at yet another nuke plant (this time Vermont, the only state with standing reservations to dump its glowing trash in West Texas), coupled with the Obama Administration’s commitment to raising a new generation of nukes with tens of billions of federal loan guarantees, beg the question what health risks — if any — nuke plants pose in the U.S.
After all, relatively non-leaky plants like the South Texas Project complex outside Bay City, represent risk, since even well-functioning plants are designed to routinely vent radioactive gases and discharge liquid wastes.
For years, the U.S. Nuclear Regulatory Commission has used a questionable study by the National Institutes of Health, Cancer in Populations Living Near Nuclear Facilities, to suggest the risk to the public was nil. Problems with the study, however, have dogged them ever since.
I explored the range of scientific literature last year as part of my Nukes of Hazard series and was left with questions when it came to STP.
Writing in "Risky Business":
If you went to city council meeting today expecting to hear a lively debate on the Brooks City Base kennel plan we blogged about earlier this week, we're sorry. We learned early this morning it had been pulled from the agenda. Animal Care Services director Gary Hendel said the plan, which could expand ACS' cramped kennel space by about 50 percent, needs a finalized lease in order to be presented to the City Council. He adds that Brooks is not the only option his department has batted around, but that at this point it's "the front runner." Hendel writes, "In order for that particular location to work for us we're
going to need to do some major clean up and a few renovations. The
buildings are old but we can make them safe, clean, and healthy."
Without any additional space, achieving the city's No Kill goal will be impossible, admits Hendel, but he's optimistic that the plan will reappear on next month's city council agenda, making No Kill, "tough, but doable."
Two years ago, this reporter attended a Texas State Board of Education meeting as an intern for an Austin-based publication. She, the unpaid intern, was one of three journalists sitting in the press box, one of whom (not her) spent the majority of the two-day meeting napping in his chair. Now that many across the state and country are rightfully sitting up and taking notice of the same hard-headed, culture war-crusading, ultra-conservative 7 member bloc of the 15-member board that time and again pushed their personal beliefs on everything from basic biology lessons to Thomas Jefferson, concerned citizens must grapple with the difficult question of how they can curtail powers they view as misused at the expense of a generation of Texas schoolchildren.
Obviously, voting is one way to make a preference known. San Antonians have two possibilities to vote come Nov. 2. To the north, one-term conservative SBOE representative Ken Mercer is up against a Democratic opponent, Texas State professor Rebecca Bell-Metereau. To the south, the elusive Rick Agosto slips out of his seat, to be filled by one of two career educators: Michael Soto, a Trinity professor from the Valley with a Harvard education or Joanie Muenzler, a proud Tea Party candidate with Masters degrees in Theology and Political Science.
The problem with the Nov. 2 elections? They’re in November. Meanwhile, on May 19-21, the SBOE votes on the social studies curriculum standards that has alarmed so many here and nationally. The actions taken at that meeting could affect textbook and testing subject matter for the next decade.
Locally, State Representative Mike Villarreal, District 123, is circulating a petition calling on the board to “place the education of Texas students above your own agenda.” Gubernatorial candidate Bill White has a similar web campaign urging his opponent Gov. Rick Perry to ask the SBOE to delay their May meeting until the original curriculum review team can evaluate the more than 100 amendments the SBOE made to their original suggestions. A new local group, the National Alliance for Education, comprised of members of the GI Forum and the NAACP, are trying to arrange meetings with legislators to voice their disapproval of what they see as a “whitewashing” of state and national history, removing Hispanic historical figures like Tejano Alamo defenders and Cesar Chavez and recommending “the unintended consequences” of the Civil Rights movement be discussed. “We’re not asking history to change, we’re asking for it to be taught accurately,” said Joe Flores at an April 5 meeting of NAFE. That sentiment was expressed almost verbatim by both Rep. Villareal and Christina Gomez, of the Mexican American Legislative Caucus. The Caucus recently announced it would hold a hearing on the State Board of Education on April 28 at Capitol extension building 2.012, beginning at 9 a.m. Gomez said the hearing, which will also include African-American legislators like our own Ruth Jones McClendon, will hear from people who have not been able to speak in front of the State Board of Education.
From there, sufficiently concerned legislators could attempt to strip the Board of some of its powers. “I believe that there is a role that the legislature can play in response to this overreach,” said Rep. Villarreal by phone on Monday. He mentioned two buzzed-about bills, one introduced last session by Rep. Donna Howard (D-Austin) to limit the board’s constitutionally-provided oversight of the Permanent School Fund and one State Senator Juan “Chuy” Hinojosa (D-20) is expected to introduce next session abolishing the State Board of Education entirely. Many legislators believe they have the power to suspend the May vote until a sunset review of the SBOE has been completed or after the Nov. 2 elections. While the Lege attempts to sort through the messy politics, Rep. Villareal said school districts have been authorized to purchase e-books that meet TEKS standards but don’t necessarily conform to all the SBOE textbook requirements. Which is great, assuming every child in Texas has equal access to e-books.
A pair of Vermont consultants blasted an unfunded Texas commission this week for preparing legal language to govern the expansion of a two-state low-level radioactive waste dump in West Texas out of fear it may impact Vermont’s ability to dispose of its only nuclear reactor.
“We are gravely concerned that this rulemaking is occurring in a rushed and ill-advised manner,” wrote Margaret Gundersen, a consultant to the Joint Fiscal Committee of the Vermont State Legislature, and Arnie Gundersen, an appointed member of the public oversight committee advising on operations at the troubled Vermont Yankee nuclear power plant. The Entergy-owned plant, recently found to be leaking radioactive tritium into area groundwater and ordered closed by the Vermont Legislature, is to be disposed of at the West Texas dump.
In a letter to the Texas Low-Level Radioactive Waste Disposal Compact Commissioners, the Gundersen’s expressed concern that if the Texas-Vermont compact is expanded to other states Vermont may end up losing the space needed for the Vermont Yankee and its growing waste stream. Texas has approved 2.31 million cubic feet for compact wastes from Texas and Vermont, though Vermont expects its one reactor to require at least 1 million cubic feet.
“The 2006 assessment does not include the recently uncovered leaking buried pipes and subsequent soil contamination by tritium, cesium, manganese, zinc, and cobalt,” the pair wrote. “In light of these recent findings, it is critical that 1 million cubic feet of space contractually reserved for Vermont’s low-level radioactive waste must be reserved in the import rule for use beginning in 2012 not at some abstract time in the distant future.”
Arnie Gundersen told the Current today that he is preparing a report for the Vermont Legislature now that will advocate pushing for a delay of the proposed import rule. Vermont members represent two seats on the eight-member TLLRWDC Commission.
As currently worded, the proposed rule states that room for Texas and Vermont will not be “reduced,” but sets no specific volume level. Texas has four operating reactors that will require at least 2.7 million cubic feet of space at WCS. Applications are pending with the U.S. Nuclear Regulatory Commission for four more reactors.
A representative of the TLLRWDCC was not immediately available for comment, but Commissioner John Ford told the Current six months ago that they were "not going to get ahead of where our decision-makers, legislators, and Governor want to go on" the potential import of additional waste streams.
Another reason Vermont was be getting heartburn over the move is that it also would potentially penalize the state if it chose to export Vermont Yankee waste to a state other than Texas.
A three-state compact to dispose of low-level radioactive wastes from Texas, Maine, and Vermont in Texas was approved by Congress in 1998, though Maine later dropped out over frustrations with delays getting a site open in Texas. Though WCS convinced Andrews County taxpayers last year to float the $75-million bond to pay for the compact dump’s construction, a legal challenge pending in El Paso has held up construction ever since.
Further complicating matters, the TLLRWDC Commission has not been funded by the Texas Legislature. Wrote the Gundersen’s: “Since the Texas Compact Commission has no staff and no counsel of its own, there has not been a thorough legal review of this process. We urge the Commission to not pass this language without adequate review by the State of Vermont, its Legislative Legal Counsel, and its Attorney General.”
Meanwhile, railroad cars of DOE depleted-uranium waste that Utah Governor Gary Herbert refused entry to his state may be rerouted to WCS, according to a DOE Inspector General report.
Currently, Waste Control Specialists in Andrews County have licenses to dispose of federal Department of Energy waste and “compact” wastes from Vermont and Texas. But WCS has begun to threaten it may go bankrupt if it can’t get the compact site expanded to accept radioactive trash from other states, as well. A call to the company’s press officer in Andrews was forwarded to McDonald Public Relations in Austin, where Chuck McDonald was not immediately available.
WCS is owned by Harold Simmons, a Dallas-based billionaire and prominent Republican Party donor.
Note: this post essentially replaces this post, with a humorous story of a little more government overreaching thrown in.
Tweaking the press
Is journalism solicitation? We’ve always thought of ourselves as a Constitutional initiative, with no pay-to-play options available (apologies to our kids, who’ll be funding their own college educations.) So, we were a bit nonplussed when the Dangerous Structures Determination Board called us out during its Monday meeting, by name, to warn us that soliciting business in council chambers is “unlawful.” “This is a first warning,” they said. We’d been talking to two individuals with a case before the DSDB while the board was in executive session, and we gave them our business card, both as credentials and as an easy way for them to exercise their First Amendment rights by speaking to the press.
The City’s Ethics Code, which notes that “‘Solicitation’ of subsequent employment or business opportunities includes all forms of proposals and negotiations relating thereto,” didn’t seem to apply. Nor did the City ordinance on “aggressive solicitation” (we’re not especially physically intimidating despite our spinach regimen). What gives? City Attorney Michael Bernard, who was not at the meeting, says he isn’t sure what happened, but he assured us that the rule is intended to deter, e.g., foundation-repair people from hitting up desperate homeowners, not to prevent journos from doing their job. Phew.
The QueQue was attending the DSDB hearing for our followup to last week’s story, “Kangaroo court,” which looked at the City’s increasing use of the DSDB to address drugs and other crime — but without the protections afforded defendants by the criminal-justice system. As we noted, a local lawsuit mentioned in that story, Slavin v. City of San Antonio, is not the only legal challenge to dangerous-structures law in the state. In City of Dallas v. Heather Stewart, attorney Julius Staev argues that citizens have the right to bring a separate takings claim against the government, even when a reviewing court has affirmed the ruling of a dangerous-structures board. His opponents in the Big D insist that when the legislature amended the state’s dangerous-structures statute in 1993 to allow only limited review of the boards’ decisions, they meant to make that avenue of appeal final. San Antonio and Houston agree, and have submitted an amicus brief to the court.
But Staev says that conclusion is logically repugnant.
“Whatever legislative intent was thrown around, nothing says anything about getting rid of Constitutional protections,” he says. “If [lawmakers] inadvertently or indirectly amended the [Texas] Constitution,’ it would have to be voted on as a Constitutional amendment.”
In the Fifth District Court of Appeals opinion that Dallas is challenging, Justice Joseph Morris wrote that the city’s nuisance process didn’t bar Stewart’s takings claim in part because the Constitutional exception that lets government take private property without compensation requires that her structure was “a nuisance on the day it was demolished.” [Emphasis the court’s.] Dallas and its likeminded friends say that if the ruling stands, aggrieved property owners could drag out dangerous-structures demolitions interminably, and municipalities would have to reexamine properties already declared nuisances once any appeals were finished, a burden too hard and expensive to bear.
Another way to read it might be that the only guaranteed Constitutional way to abate a nuisance is if it poses imminent harm, but in their amicus brief, San Antonio and Houston argue that “The threat of money damages for lawful demolitions of public nuisances would serve as too strong a deterrent for most cities in these troubled economic times to continue abating dangerous structures.”
Slavin attorney Eddie Bravenec suggests that it would in fact encourage our DSDB to act with appropriate caution. “The City would only do it if it was really an emergency,” he said. “If the City gets to demolish [private property] without facing punitive damages, well, they’re going to demolish a whole bunch of other properties — and that’s what they’ve been doing.”
Part two in our DSDB series will appear April
28, and yes, dear readers, will also include stories of some of DART's good work -- e.g. addressing slumlords.
Today and tomorrow you can catch the last of the public meetings
arranged by Animal Care Services. These meetings
give citizens an opportunity to speak their mind on spay/neuter options,
pet licensing, tethering and animal sales before revisions to the
Chapter 5 ordinance covering animal issues are proposed to the City. We
attended a meeting last week for District 2 residents and found Animal
Care Services Director Gary Hendel's honesty refreshing, and disturbing.
As with most other departments, the City slashed Animal Care Services'
budget last year, removing $750,000 and 14 positions from Animal Care
Services' annual budget. The bulk of the removed funding would have gone
to the City's Spay and Neuter budget, a crucial component of the No
Kill roadmap. The loss of trained Animal Care Services officers meant a
damaging blow to an already feeble force. Currently, Hendel says the
City of Dallas, population 1,232,940 (in 2007), has 60 officers in the
field. San Antonio, population 1,328,984, has 28. Think on that next
time you call repeatedly to report stray animals in your 'hood. To help
manage the 88,000 calls for service in the past year alone, Hendel said
311 and Animal Care Services developed a system to quantify calls. A
Priority 1 call means an animal is currently attacking. Priority 2 is an
animal chasing a human or acting in a seriously aggressive manner.
Priority 5 (3 and 4 don't exist, yet) are calls about any other sort of
stray animal. If your call is a Priority 5, "we don't care," said Hendel
bluntly. "I care. My officers care. But we don't have time." Moreover, Current
staff hopes to get more information on faulty communications
between 311 operators and Animal Care Services that Hendel said resulted
in a number of higher priority calls getting classified as Priority 5.
Hendel, who came to San Antonio from Portland's Animal Control Division
10 months ago, says that another reason so many strays don't meet the
dog/cat catcher in a timely manner is the swanky $12 million Animal Care
Services campus opened in 2007, which, despite covering 38,000 square
feet managed to reduce the number of kennels from 334 to 193. "We've
handcuffed [our officers]," said Handel. "We've said, 'stop doing what
you're good at, we don't have space.'"
Those are internal problems, and the QueQue reckons they won't truly be resolved without additional big bucks for more kennels, subsidized spay/neuter procedures and more officers dedicated to enforcement. What you, the average SA animal lover (or hater), can do is give your two cents on some specific areas of the ordinance Hendel and his staff are revising and hoping to present to City Council come mid-May.
1) Spay/neuter. For whatever reason, San Antonians seem to like their pets intact, meaning balls swinging and bitches in heat. Animal Care Services still hasn't figured out the best way to STRONGLY encourage pet owners to spay and neuter their animals. Up for discussion is a mandatory spay/neuter policy, excluding police dogs, purebred breeders and show animals.
2) Tethering. It might seem like an easy option for owners without a fence in their yard, but not only can tethering dogs outside expose them to harsh elements, it can leave unspayed females open to gang bangs by unneutered male dogs, with no means of escape. Hendel notes these females act as bait luring packs of the City's most aggressive animals right to the tetherer's doorstep.
3)Puppy sales. QueQue's favorite pun of the evening was "impounding puppies," a term Hendel came up with to address the fact that when slapped with a fine, illegal puppy sellers pay it, then turn around and sell another puppy to make up the debt. Hendel proposed "confiscating" illegal puppy litters for sale and imposing steep fines.
4) Female pets in heat. Keep them inside, 'nuff said.
5) Fowl/livestock. New marketing slogan: Keep your cocks out of COSA. Laying hens are acceptable, but Animal Care Services is deliberating on whether a restriction should be placed on how many one owner can house within city limits and whether their coops should be subject to regulation.
QueQue hopes concerned citizens involve themselves in the No Kill initiative and not leave it up to the City to do all the hard work. It's no secret that San Antonio won't make their No Kill 2012 goal. "There's no way on God's green earth," said Hendel. Not with the current budget and department size at least. "I believe San Antonio could be No Kill in 10 years," he said. Assistant City Manager T.C. Broadnax, Hendel's boss, has a rosier outlook. "We're not ready to say 'uncle' so to speak" he said regarding the feasibility of meeting the 2012 No Kill Goal. The City's definition of No Kill means that 70 percent of healthy, adoptable animals that come into the shelter are adopted out. Right now, Hendel says San Antonio is at 35 percent, a commendable increase from 12.5 percent four years ago, but nowhere near the city's goal, just one and a half years away.
If you're interested in hearing firsthand what Hendel and his Animal Care Services team have to say, hustle down to Igo Branch Library today from 6-7:30 p.m. or OLLU's Library Communications room tomorrow between 6-8 p.m. Those who can't attend in person can still provide input to Animal Care Services' Chapter 5 ordinance revisions via this handy-dandy survey.
I hoped to have more for you on this case today, readers, but I'm still awaiting return calls. Check next week's QueQue for a more in-depth discussion of this angle. If you're interested in this (and you should be), you can read the court filings, and watch oral arguments before the Texas Supreme Court.
Slavin v. City of San Antonio, one subject of this week’s news story about the worrisome intersection of our Dangerous Structures Determination Board and the Dangerous Assessment Response Team, isn’t the only Constitutional challenge to these unelected, largely unsupervised boards. In City of Dallas v. Heather Stewart, attorney Julius Staev argues that citizens have the right to bring a separate takings claim against the government, even when a reviewing court has affirmed the ruling of a dangerous-structures board.
The City of Dallas (and San Antonio and Houston in an amici brief) insists that when the legislature amended the statute in 1993 to allow only limited review of the boards’ decisions, they meant to make that avenue of appeal final. But Staev says that conclusion is logically repugnant.
“Whatever legislative intent was thrown around, nothing says anything about getting rid of Constitutional protections,” he says. “If [lawmakers] inadvertently or indirectly amended the [Texas] Constitution,’ it would have to be voted on as a Constitutional amendment.”
Staev is also alarmed by the argument, made in Stewart and as part of Patel v. City of Everman yet another case before the Texas Supreme Court, that once a property has been ruled a nuisance, the owner loses control of it and cannot make any improvements that could be used to subsequently challenge the board’s finding.
“If the cities were to have their way,” Staev says, “it would literally change the landscape.”
Yes, court cases take time, but if a building really presents an
emergency, governments have a recourse, says San Antonio attorney Eddie
Bravenec: Tear down the building. If the owner sues and wins, pay the damages.
If the City was right most of the time, it might not be much more expensive than the present system: During the last fiscal year, the City billed more than $620,000 for 89 demolitions, $492,000 of which is still outstanding. The City’s recourse in those cases is to file a lien, which runs with the property until it is sold.
Without the built-in safety net of the current system, which makes it nearly impossible to challenge the DSDB’s decisions, “the City would only do it if it was really an emergency,” Bravenec says. “If the City gets to demolish [private property] without facing punitive damages, well, they’re going to demolish a whole bunch of other properties — and that’s what they’ve been doing.”
Last month, the San Antonio Free
Speech Coalition learned oral arguments in their case against the
city and its revised parade ordinance would be heard by the U.S. Fifth Circuit Court of Appeals, located in
New Orleans. I squeezed into the group's serious meeting on April Fool's
Day to see how the exhaustively active group would handle the April 27
one-hour-plus hearing. It couldn't have been a better meeting for a
neophyte like me to get briefed (albeit one-sidedly) on the history of
the contentious parade ordinance and its implications for free speech.
The Esperanza Peace and Justice Center, the primary soldiers in this particular battle, hosted the event and provided the bulk of the 30 or so attendees. Others included the proud octogenarian member of the Communist Party to my left and his friend, Susan Ives, the leader of the local Peace Center to my right. Amy Kastely, the lead attorney for the Free Speech Coalition, launched into her clients' grievances with a Star Wars-like beginning: "The long saga of this challenge that we're bringing begins many years ago ... "
The updated, quick-and-dirty version is as follows: The City of San Antonio has long charged fees for parades and assemblies held on its streets and requiring some sort of traffic blockage, police presence and clean-up. Kastely and the Free Speech Coalition claimed that after massive immigration rights marches in 2006, a new parade ordinance quickly appeared applying a different fee schedule for First Amendment and non-First Amendment events. And who decides what event constitutes "First Amendment" and thus lowered fees? Why, the San Antonio Police Department, of course. Law enforcement has an awesome record with those sorts of determinations. Moreover, some proven, popular events like the Diez y Seis Parade and the Martin Luther King Day March would be exempted. Giving the police the broad power to decide who marches, revels or protests and how much they should pay seemed a tad unconstitutional to U.S. District Judge Xavier Rodriguez, who issued an injunction halting enforcement of the ordinance on February 21, 2008.
Assistant City Attorney Debi Klein says parade ordinances vary nationwide, with some cities enforcing much more stringent permit requirements than San Antonio.
“We’ve given every opportunity to allow people to have those [First Amendment] events at no cost,” Klein said, pointing out that the City picks up the first $3,000, and will make arrangements for expenses above that amount in some cases. She also notes that applicants can indicate whether they believe their event qualifies for First Amendment status when they apply for a permit, and the police department consults with the City Attorney’s office. “We err on the side of caution and presume it’s a First Amendment event.”
Klein said she expects the loser at the Fifth to appeal to the United States Supreme Court.
San Antonio Express-News Editor Bob Rivard is one of the most recognizable San Antonians there are. Barrels of CMYK ink will do that for a guy. His news resume showcases decades of determination and talent ladled over with the sorts of awards working writers gnash their teeth after. He’s been a force for free speech and press not only here at home, but also into Latin America as a board member of the InterAmerican Press Association.
However, as the daily’s editor, he’s also been criticized for squelching in-house investigative journalism and strolling out on some truly tortured limbs in his regular column offerings (new nukes AND billion-dollar ocean desalination?).
Today, Rivard has a one-in-three chance (give or take some UT faculty prejudices) of slipping from us entirely.
On Monday and Tuesday, Rivard was meeting with faculty at the University of Texas as one of three candidates being considered for the position of director of the School of Journalism. The interim director, Tracy Dahlby, didn’t return our calls, but word is he is anxious to get back to teaching journalism after more than a year immersed in the management end of it. (“He’s a great teacher and he wants to go back to teaching and writing,” one source told us.)
Rivard also was mum on the topic, failing to return calls immediately today.
The other candidates for the post include Glenn Frankel, a nearly 30-years Washington Post veteran and Pulitzer Prize winner, and Linda Steiner, an academic from the University of Maryland’s College of Journalism, who also held positions at Rutgers and something called Governors State University.
Contact @sacurrent on Twitter for details about our betting pool in this three-way. And best of luck, Bob.
Seriously, guys: Check your facts
The mainstream media and Trinity’s ‘diploma controversy’
Internet news hubs such as Huffington Post and Fox News have gotten ahold of a religion-related debate going on at Trinity University and have distorted the story to an amazing degree. The story first hit the San Antonio Express-News on Monday: Some students at Trinity University have requested the option to remove the phrase “in the year of our Lord” from the school’s diplomas. The issue currently stands before the Board of Trustees, who will vote on the removal of the phrase in May. National news carriers and blogs, smelling controversy, leapt on the story and have turned our local liberal-arts college into an ideological battleground through sloppy reporting.
The problems with these stories are myriad. First and foremost, virtually all of them on the national level dance around the fact that Trinity is not a Christian university, and has not been for almost half a century. Fox News mentions that the school is “Christian rooted,” which is true. What they neglect to tell you is that (quoting from the Trinity website) “in 1969 … Trinity University entered into a covenant agreement … that affirmed historical connections, but transformed Trinity University into a private, independent university.” So while the Presbyterian Church and Trinity are still friends, Trinity is fundamentally a nonreligious institution and it is billed as secular, tolerant, and diverse.
Another glaring omission made by most national news carriers is that this is a nuanced debate with a diverse range of students involved on both sides. The issue originally emerged when the Trinity Diversity Council requesting the option to have the phrasing removed for students who felt strongly about it. Only after the University refused to make custom diplomas did the debate switch to the merits of the phrasing itself. Since then, campus discussion has been ongoing, culminating in an open forum in February which allowed students and faculty to voice their opinions directly to the Association of Student Representatives. A number of students from Muslim, Christian, and other backgrounds came out in support of the phrase’s removal, and after much deliberation, ASR agreed and sent the proposal on to the Board of Trustees.
A quick reading of the hits on Google News will gives you a different impression. What you will hear from outlets such as “The Right Perspective,” a conservative blog that bills itself, quite accurately, as giving “opinions as subtle as an iceberg in a shipping lane,” is this: “A group of Muslim students at Trinity University in Texas are arguing their diplomas should have the words ‘our Lord’ dropped to reflect the ‘diversity’ of college life.”
Or, from the Blogger News Network: “Naturally it would be a Muslim student who considers it right and proper to even ask that the words be removed from the diploma all because ‘not everyone believes in Jesus.’”
That’s right, ladies and gentlemen. It’s Muslims vs. Jesus, winner take America! This frankly ignorant analysis (Gina Burgess at BNN even admitted she didn’t know the gender of Sidra Qureshi, president of TDC) owes everything to the misleading way the initial reports were written — on the one hand, they quote two Muslim students, Sidra Qureshi and Isaac Medina, and on the other they quote Brendan McNamara, president of TU’s chapter of the College Republicans. No offense to McNamara, but to anyone looking to stir controversy, the story reads like two angry Muslims are crusading against the white Christian majority to force their opinions down everyone’s throats.
The immature and vitriolic dialogue that’s embroiling comment threads on Fox News and BNN reflects nothing that has happened at Trinity University since the start of this controversy-that-isn’t. Dean of Students David Tuttle said it best: “A university is exactly the place for students to learn about others, stand up for their own viewpoints, and critically develop nuance and complexity in formulating and expressing opinions — all while respecting the rights of others to do so.” This news explosion is endemic to the ridiculous polarization of public discourse in this country, and is a perfect example of the sloppy, biased reporting that fuels it. Trinity University was having a civil, open discussion about diversity and religious identity, until the mainstream media showed up. Nice job, guys.
Jacob Muncy is a student at Trinity University, and a Spring 2010 Current intern.
The spring monarch migration has been a bust. Only a lucky few have caught sight of more than a couple of the iconic insects currently on their northward jaunt through Texas.
Mainstream news reports have cited key culprits of the population collapse of this most recognizable of the flitter-bys. Soggy weather and illegal logging have both indisputably blitzed the butterflies at their Mexican over-wintering grounds. Less widely reported is the on-going loss of habitat in the United States, as well as our widespread use of toxic herbicides, pesticides, and use of genetically modified corn, many varieties of which are known to be damaging to the insects.
“Their breeding ground is being ‘cleansed,’ as it were, of milkweed. People are using Roundup Ready crops, herbicide-ready crops,” said Mike Quinn, a former Texas Parks & Wildlife entomologist and current president of the Austin Butterfly Forum.
Monarch Watch estimates current agricultural practices — including the war on primary food source, milkweed — have eliminated more than 80 million acres of monarch habitat in recent years.
When the butterflies reach their breeding ground around the Great Lakes region, they’ll be met with sprawling stands of soy and corn crops — herbicide-tolerant crops that have led to an increase in the amount of toxic spraying that has such a negative impact on monarchs.
And some of those Bt-corn varieties aren’t helping, either.
Researchers first began to spotlight the potential risk a decade ago. John Losey, associate professor of entomology at Cornell University, was one of the first to publish findings that showed that monarch larvae fed milkweed leaves dusted with Bt-corn pollen ate less, developed more slowly, and died more frequently than those fed milkweed untainted by the transgenic pollen.
More recent research suggests that fewer than one percent of monarchs are threatened by exposure to Bt-corn pollen. While the total impact may sound small, Losey said it should be considered along with all the other environmental threats impacting monarch populations across the Americas. “People say, ‘Well, there’s these other threats that are large,’ and they are, but the more the populations get squeezed by these other things, that just sort of magnifies whatever mortality could be happening from the Bt corn,” he told the Current.
That’s not to downplay last winter’s soggy weather or its impact on the already vulnerable population. In 2009, the species limped into central Mexico at its lowest numbers since researchers began doing population counts in the 1970s.
Previous crashes in 2002 and 2004 occurred when the populations were above average, Quinn said. “This year the population was at an all time low and then there was the crash that halved that low number. Another, a back-to-back crash would be particularly devastating.”
And while Mexico’s butterfly reserves and Midwest breeding grounds may feel far from us in South Texas, there’s a lot local residents can do to help. Texas is a “springboard” for the northward migration, the site of the monarchs’ first rush of egg laying. “So the conditions here in Texas play a big role in the success of future monarch generations going north,” said Quinn, who also maintains the Texas Monarch Watch website.
Quinn will be joining a list of presenters at Cibolo Nature Center next Friday and Saturday to train local citizen scientists to lend a hand.
From the CNC website:
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