September 20, 1991
RICHARD ATKINSON, APPELLANT
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.
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passed Act 9-8, the "Assault Weapon Manufacturing Strict Liability Act of 1990 Temporary Repealer Act of 1991," which repealed the 1990 Act "on a temporary basis" for another 225 days.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.
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, and if disapproved, the Council may by a two-thirds vote override the veto. D.C. Code § 1-227(e).
As indicated above, however, District legislation is, with certain exceptions, subject to the further requirement that it shall be "transmitted" to Congress. However, this is not a transmittal for any affirmative action by Congress. On the contrary, unless Congress within the designated period "disapproves" the act by joint resolution (which requires the President's signature), *fn11 the act "shall take effect" upon the expiration of the designated period or upon the effective date prescribed by the act, whichever is later. In short, once the act has been transmitted to Congress, the legislative process of the District insofar as the Council and Mayor are concerned is at an end. Under the statutory provisions, the only circumstances that can prevent the act from becoming law are the passage of a joint resolution by Congress under D.C. Code § 1-233(c)(1) or the filing of a valid referendum petition under D.C. Code § 1-282(b)(1). *fn12
Furthermore, even if the Council has the power to prevent the processes of D.C. Code § 1-233(c)(1) from continuing in accordance with its terms, either by withdrawing the act from further congressional consideration, with or without the consent of Congress, *fn13 or by other means, the Council's actions here indicate not an attempt to withdraw its previous act but to repeal it. The actions all reflect a faithful adherence to the express statutory provisions in which the enactment of the 1990 Act is treated as a discrete event. The subsequent three measures enacted in 1991 all speak in terms of "repeal."
It would seem a tortured distortion of ordinary language to construe an emergency repeal act, which by its own terms is effective for only 90 days, to have the effect of nullifying on a permanent basis a Council act itself intended to be permanent. Cf. In re O.M., 565 A.2d 573 (D.C. 1989), cert. denied, 110 S. Ct. 1824 (1990) (emergency legislation intended to amend interstate compact or restrict its enforcement expires at end of ninety days and has no effect on compact terms thereafter). Furthermore, no provision is made in the statutory scheme for any formal notification to Congress of the passage of emergency legislation, which takes effect without a congressional layover. Where action subsequent to the submission of an act to Congress is intended to affect a Council act pending before Congress, as with the filing of a referendum petition, see supra note 8, the statutory scheme makes specific provision for such notification. If emergency legislation repealing a pending act were intended permanently to nullify a Council act pending before Congress, orderly process would anticipate a similar legislative provision for notifying Congress. *fn14
We conclude that Act 9-1, the emergency repealer act, did not nullify the 1990 Act, and thus that Act 9-32, the "Assault Weapon Manufacturing Strict Liability Act of 1990 Repealer Act of 1991," is, as the Board and trial court found, a proper matter for referendum. *fn15
Appellant's second argument is that even if the proposed referendum is proper in principle, the "summary statement" contained in the proposed submission to the voters "contains false and misleading language as to its effect." We turn to this issue.
Pursuant to D.C. Code § 1-1320(c)(1), when the Board of Elections and Ethics accepts a referendum measure, it shall "prepare a true and impartial summary statement, not to exceed 100 words . . . expressing the purpose of the measure. Such statement shall not intentionally create prejudice for or against the measure." The summary statement proposed by the Board reads in its entirety as follows:
In 1990, the Council enacted the Assault Weapons Manufacturing Strict Liability Act ("Strict Liability Act"), to hold manufacturers, importers, and dealers of certain assault weapons strictly liable for injuries caused by those weapons.
In 1991, the Council passed a repeal of this law.
Referendum #006, if approved, would preserve the "Strict Liability Act" as originally passed and reject this repeal.
Vote "FOR" Referendum #006 to keep the "Strict Liability Act" in effect (and reject the repeal).
Vote "AGAINST" Referendum #006 to permit the repeal to become law.
Appellant's argument is that the Strict Liability Act has yet to complete the congressional layover period, on the theory, in effect, that the 1991 emergency act and its two successors have "tolled" the running of the mandatory thirty-day period. Hence, he asserts, the summary misleads voters into believing that the Strict Liability Act already is "law" and that they can vote "to keep" it "in effect"; that is, it implies that a successful vote to reject the permanent repealer (a majority of "FOR" votes) will ipso facto render the 1990 Act an operative law. The contrary argument is made, however, that the summary statement makes no such assertion, but to the contrary simply avers that a FOR vote will keep the "Act" in effect with whatever force it will then have absent the permanent repealer statute. *fn16
We see no basis for taking issue with the Board's formulation of the summary statement or the trial court's Conclusion that the language was "sufficiently accurate and informative" fairly to inform the voters of the "purpose of the measure." D.C. Code § 1-1320(c)(1) The Board was faced with no small task in encompassing, within the statutory limit of 100 words, an impartial presentation of the relevant information to readers not necessarily schooled in the subtleties of the District of Columbia legislative process. *fn17 As the Board's counsel told the trial court: "What we try to do as an impartial agency is to formulate language that is going to be friendly to the electorate as a whole. And so what we attempt to do is eliminate as much legalese as possible." The statute places upon the Board the responsibility of carrying out the mission of preparing an appropriate summary statement, and we affirm its product here.
The most fundamental difficulty with appellant's argument, however, is that it is based on a faulty premise: that the 1991 repealer acts have legally affected the process of congressional layover for the 1990 Act. Appellant offers no statutory or case foundation for this assertion, and we find none in the statutory scheme. As described above, the 1990 Act and the three 1991 repealer acts have operated on different tracks. The 1990 Act was submitted to Congress under a provision that unless disapproved by joint resolution, the act "shall" become law after the designated layover period had expired. D.C. Code § 1-233(c)(1). Only a referendum petition could halt this process. Moreover, even if a "withdrawal" of the 1990 Act could be effected by the Council, it did not purport to do so. *fn18
The Council did, however, pass the emergency repealer. If followed that act with the 225-day temporary repealer, which took effect at the end of the congressional layover period of May 15, 1991. By all accounts, the temporary repealer will remain in effect until well after the results of the referendum election become clear. In the event that the referendum succeeds in negating the permanent repealer, the referendum result will be subject to the temporary repealer until it expires.
It this posture, we think the trial court was quite correct in its Conclusion that "the Strict Liability Act is in effect but for the repealer. The Congressional review period has passed." *fn19 [Tr. 39] Hence, even under appellant's reading of the purport of the language of the summary statement, it is "true and impartial." D.C. Code § 1-1320(c)(1).
The trial court's order dismissing appellant's petition is, accordingly,