For the last two months, the city of Dallas has been pumping about $4,000 a day into a case that outside observers and many members of the City Council view as an obvious loser — the city's fraught attempt to ban the Exxxotica adult expo from using the Kay Bailey Hutchison Convention Center. Wednesday, the city manager came to the council, hat in hand, asking it to throw another $145,000 at defending the ban, bringing the city's running tab with the two law firms representing the city in the case to $245,000.
The council approved spending the money — the seven council members who voted with Dallas Mayor Mike Rawlings to create the ban have a fair amount of political skin in the game — but not without council members Philip Kingston and Scott Griggs getting a few shots in about the amount of cash they say is being wasted and the potentially harmful strategy the lawyers on the receiving end of all that money are undertaking.
"Right now our cost of litigating this lawsuit is well over $100,000 a month. I have concerns about the legal position that we've taken and how much of it is frivolous and just a waste of taxpayers' money," Griggs said. "Have no doubt about it. All of this is taxpayers' money. We may say here that this is coming from an enterprise fund, but the bottom line is that all of this is co-mingled money and this is taxpayer money. Certainly, this money could've been used for something else."
When the Observer talked to Rawlings about the lawsuit earlier this month, he was quick to point out that Dallas residents weren't on the hook for the lawsuit because, in his words, the city was self-insured for this sort of thing.
"We've got insurance on this, we self-insure, so we're not taking money away from the streets or poor hungry children. This is why we put an insurance package together over [at the convention center] for that enterprise fund and we'll let the judges make the call and we'll move on down the road," Rawlings said.
Just moving, and paying, on down the road might not be as simple as the mayor suggests if Kingston is right about the implications of the strategy Dallas' attorneys in the case — Tom Brandt and Scott Bergthold — are pursuing.
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Brandt and Bergthold were hired by the city after City Attorney Warren Ernst was conflicted out of the case because he said he believed the ban wasn't constitutional at a February City Council meeting. Their argument has basically been twofold: that Exxxotica's parent company Three Expo events operated the convention, they say, in violation of the city's Sexually Oriented Business ordinance and that illegal, lewd acts were performed by attendees and vendors at the show.
Kingston believes the first part of the strategy has endangered the city's longstanding sexually oriented business regulations. (Ernst has said that the city ordinance does not apply to temporary uses of city-owned public spaces, like the convention center.)
"We have now given the judge a chance to to whack the SOB ordinance, an ordinance that was crafted over many years and that has been tested by courts in the past in its previous application," Kingston said. "Our own lawyers' defense strategy placed the ordinance at issue in the case and now gives the judge a chance to whack it. He's right to do so because we are taking a previously constitutional ordinance and applying it in an unconstitutional way."
Kingston was cut off by ban supporter Rickey Callahan, who said his colleague was out of line for discussing strategy outside of a private, executive session. Rawlings agreed with Callahan, and the payments to Brandt and Bergthold were put to a vote.