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09/20/91 RICHARD ATKINSON v. DISTRICT COLUMBIA

September 20, 1991

RICHARD ATKINSON, APPELLANT
v.
DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, APPELLEE; REV. ALBERT GALLMON, JR. & COMMITTEE FOR STRICT LIABILITY, INTERVENORS



Appeal from the Superior Court of the District of Columbia; Hon. Peter H. Wolf, Trial Judge.

Ferren and Steadman, Associate Judges, and Gallagher, Senior Judge.

The opinion of the court was delivered by: Steadman

Before us for expedited decision is a challenge to a proposed referendum measure to be submitted in November to the voters of the District of Columbia relating to potential liability of manufacturers, importers, and dealers of assault weapons for injury or death caused by the use of such a weapon in the District. Its Disposition involves consideration of a unique feature of the legislative process in the District; namely, that a legislative act of the Council of the District of Columbia, with certain exceptions, may not take effect until at least thirty calendar days after the act has been formally transmitted to Congress, within which period Congress may, by joint resolution, disapprove the Act. D.C. Code § 1-233(c)(1) (1987). *fn1 We affirm the decision of the trial court dismissing appellant's challenge to the referendum and its proposed wording on the ballot.

I

On December 17, 1990, then Mayor Marion Barry, Jr., approved, pursuant to D.C. Code § 1-227(e), Act 8-289 (the "1990 Act") of the Council of the District of Columbia, entitled the "Assault Weapon Manufacturing Strict Liability Act of 1990." *fn2 On January 11, 1991, the act was submitted to Congress pursuant to D.C. Code § 1-233(c)(1). By appellant's own calculation, the 30-calendar-day congressional layover period would, in the normal course of events, expire on or about March 6, and the act then "take effect."

However, on February 5, 1991, the newly elected Council, following a recommendation by newly elected Mayor Sharon Pratt Dixon, took the first of three steps to repeal the 1990 Act by unanimous passage, pursuant to its power to enact emergency legislation under D.C. Code § 1-229(a), *fn3 of Act 9-1, the "Assault Weapon Manufacturing Strict Liability Act of 1990 Emergency Repealer Act of 1991." Mayor Dixon approved this emergency legislation on February 15, 1991, and it went into immediate effect "for no longer than 90 days." *fn4

Secondly, on March 5, 1991, the Council passed Act 9-8, the "Assault Weapon Manufacturing Strict Liability Act of 1990 Temporary Repealer Act of 1991," which repealed the 1990 Act "on a temporary basis" for another 225 days. *fn5 The Mayor signed Act 9-8 on March 15, 1991, and it was transmitted to Congress pursuant to D.C. Code § 233(c)(1) on March 19, 1991. The congressional layover period having expired, the Temporary Repealer Act took effect on May 15, 1991.

Finally, the Council passed permanent legislation, repealing the 1990 Act, denominated as Act 9-32 and entitled the "Assault Weapon Manufacturing Strict Liability Act of 1990 Repealer Act of 1991." Approved by the Mayor on May 17, Act 9-32 was transmitted to Congress on May 23, 1991.

On that same day, action began under another aspect of the District's legislative process; namely, the voters' right to a referendum. *fn6 Intervenor-appellee Gallmon submitted a proposed referendum measure with the District of Columbia Board of Elections and Ethics (the "Board"). The proposed referendum measure would put to the voters the question whether Act 9-32, the permanent repeal of the 1990 Act, should be adopted or disapproved. On May 28, 1991, the Board determined that the proposal met the standards for a referendum, adopted a short title and summary statement, and designated it as "Referendum Measure No. 006." The Board approved the petition form on June 11, 1991, *fn7 and the solicitation of the necessary elector signatures (five per cent of all registered electors, D.C. Code § 1-282(a)) began in an effort to place the referendum measure on the ballot. On July 12, 1991, a referendum petition with the requisite number of signatures was presented to the Board, and on August 6, 1991, the Board certified the referendum measure for inclusion on a November 5 special election ballot. A further consequence of these actions was to halt the congressional layover process for Act 9-32 (the permanent repealer), pursuant to D.C. Code § 1-282(b)(1). *fn8

Meanwhile, shortly following the Board's acceptance of the referendum proposal on May 28, 1991, appellant filed a petition with the Superior Court challenging both the acceptance of the proposal as a referendum and the language of the summary statement. *fn9 The trial court rejected appellant's challenges and dismissed the petition. This appeal followed.

II

Appellant's first argument is that the referendum proposal is fatally defective because it is in fact an initiative. His argument rests upon the proposition that by the enactment of the emergency repealer act, Act 9-1, the Council "nullified" the 1990 Act which was still pending before Congress. *fn10 He argues that "logic and common sense, as well as the purpose of the Home Rule Act," dictate such an interpretation. He asserts that an act passed by the Council, while still pending before Congress, does not have permanent duration, since it will eventually either come into law (that is, take effect) or be disapproved. Because acts do not have permanent duration, he says, it does not take a permanent law to repeal them permanently, but only a temporary law, such as an emergency act. In substance, he argues that the Council has the power to withdraw its own acts before the congressional layover period has passed and has exercised that power by enacting the emergency repealer act.

We find nothing in either the straightforward and clear provisions of the legislative processes established by the Home Rule Act or the steps taken by the Council to deal with the 1990 Act which would warrant a holding that by passage of the emergency repealer act, the Council permanently and without more deprived the 1990 Act of legal effect.

The Home Rule Act vests the legislative power granted to the District in the Council, to be exercised in accordance with the Act. In general, within the District government, this legislative power is exercised in a manner similar to that common in the states. The Council passes legislation and submits it to the Mayor. The Mayor has 10 days within which to approve or disapprove the act, ...


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