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10/27/92 JAY HESSEY v. VALERIE K. BURDEN

October 27, 1992

JAY HESSEY, APPELLANT
v.
VALERIE K. BURDEN, CHAIRPERSON, DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, ET AL., APPELLEES, JAMES DURHAM, ET AL., INTERVENORS; KENNETH PRICE, ET AL., APPELLANTS V. DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, APPELLEE, JAY HESSEY, INTERVENOR



Appeal from the Superior Court of the District of Columbia; (Hon. Richard A. Levie, Trial Judge)

Before Terry, Farrell, and Wagner, Associate Judges.

The opinion of the court was delivered by: Terry

TERRY, Associate Judge:

This case comes before this court for a second time on the question of whether the proposed Taxpayers' Right to Know Act qualifies as a "proper subject of initiative" under D.C. Code § 1-1320 (b) (1992). In Hessey v. Burden, 584 A.2d 1 (D.C. 1990) ("Hessey I") we considered two challenges to the proposed initiative -- the only two that were before us - and reversed a trial court decision sustaining those challenges. Now, after further proceedings, the case is here once again. On this second appeal we must first untangle the procedural knots in which the parties, including the Board, have ensnared this case. We then turn to questions of standing and ripeness. Finally, after considering the merits, we hold that the trial court erred in ruling that the proposed Taxpayers' Right to Know Act is not a proper subject of initiative. We therefore reverse in part the trial court's decision in No. 92-126, and we remand No. 92-172 to the trial court for an evaluation of whether the Board of Elections' summary statement, short title, and legislative form are proper.

I. FACTUAL BACKGROUND

If enacted, the proposed Taxpayers' Right to Know Act ("the Taxpayers' Act") would create a new Office of Public Advocate for Assessments and Taxation (OPA). The OPA would have the authority to appear and advocate on behalf of the public interest in tax assessment proceedings before the Board of Equalization and Review (BER) and in challenges to BER determinations before the Superior Court and this court. The initiative would also require that all meetings of the BER, including individual appeals of property tax assessments, be open to the public, and it would guarantee public access to all documents presented at such meetings. In addition, the initiative would provide:

Any taxpayer may, on behalf of the general public of the District, appeal to the the assessment of any real property except Class 1 property, Class 2 property, or Class 3 property, or may intervene in any appeal brought by the owner of that property.

Mr. Hessey filed his initiative proposal *fn1 with the Board of Elections and Ethics ("the Board") on January 22, 1990. Several individual commercial property owners, the Apartment and Office Building Association of Metropolitan Washington, and the Washington Association of Realtors (collectively "the opponents") promptly filed objections to the proposed Taxpayers' Act, arguing that it was not a "proper subject of initiative" under D.C. Code § 1-1320 (b)(1). *fn2 The opponents advanced seven grounds before the Board for rejecting the initiative. The Board held a hearing, and on March 7, 1990, it ruled that the Taxpayers' Act was not a proper subject. In its order the Board relied on two of the grounds presented by the opponents, *fn3 but it expressly refused to rule on the other five.

Mr. Hessey then filed this action in the Superior Court, seeking a writ in the nature of mandamus to compel the Board to accept the proposed Taxpayers' Act. *fn4 The opponents filed a motion to intervene in the Superior court proceedings, which was granted. Mr. Hessey then filed a motion for summary judgment, and the Board filed a cross-motion for summary judgment, in which the opponents joined. After a hearing, the court granted the Board's motion and denied Mr. Hessey's motion.

Mr. Hessey appealed, and in Hessey I this court reversed the decision of the Superior Court, holding that the two grounds relied upon by the Board and the trial court in rejecting the initiative were insufficient to make the proposed measure an improper subject under D.C. Code § 1-1320 (b)(1). Our opinion stated simply that the judgment of the trial court was "reversed." Hessey I, supra, 584 A.2d at 8. The opponents filed a timely petition for rehearing en banc, thereby staying issuance of our mandate. See D.C. Ct. App. R. 41 (a).

Shortly after the opinion in Hessey I was issued, the Board, without waiting for a ruling on the petition for rehearing en banc, prepared a short title and summary statement of the proposed initiative pursuant to D.C. Code § 1-1320 (c). The opponents then filed in the Superior Court a separate action against the Board challenging the short title and summary statement, in accordance with D.C. Code § 1-1320 (e). *fn5 In their complaint, filed under the name of Price v. Board of Elections, the opponents sought "review" of the Board's latest action, as well as "injunctive, declaratory, and other relief." They argued that the Board had acted ultra vires in issuing the short title and summary statement because this court's mandate had been automatically stayed by the pending petition for rehearing en banc. See D.C. Ct. App. R. 41 (a). The opponents also asserted that the Board should have rejected the initiative because it violated the constitutional guarantees of due process and equal protection, because it would result in an unconstitutional taking of private property, because it proposed a regulation rather than a "law," because it authorized unlawful discrimination in violation of the District of Columbia Human Rights Act, and because it would negate or limit a budget act of the Council. These were the same five grounds which they had previously argued before the Board, but which the Board had expressly declined to consider when it had first ruled on the proposed initiative. Finally, the opponents alleged that the summary statement was inaccurate and biased. The Board filed an answer to the complaint in Price, and Mr. Hessey, after being granted leave to intervene, filed a motion to dismiss the complaint, or in the alternative for summary judgment.

If any registered qualified elector of the District of Columbia objects to the summary statement, short title, or legislative form of the initiative measure formulated by the Board pursuant to subsection (c) of this section, that person may seek review in the Superior Court of the District of Columbia within 10 calendar days from the date the Board publishes the summary statement, short title, and legislative form in the District of Columbia Register and in a newspaper of general circulation . . . .

The trial court then stayed further proceedings in Price because this court had not yet ruled on the petition for rehearing en banc in Hessey I Mr. Hessey thereupon filed with this court an emergency motion in Hessey I for issuance of the mandate. On October 15, 1991, this court granted Mr. Hessey's motion, denied the petition for rehearing en banc, and issued the mandate.

Two weeks later, on October 29, the opponents filed in the trial court a "Motion for Further Proceedings on Plaintiff Hessey's Motion for Summary Judgment And On Intervenor Defendants' Further Bases for Rejecting Mr. Hessey's Initiative in Hessey v. Burden." They asserted that this court in Hessey I had ruled on only the two grounds upon which the Board had rejected the proposed initiative, and that there had never been a ruling on any of the other five challenges which they had originally presented to the Board. The Board opposed this motion on the ground that the opponents had no standing to reopen the case for additional findings. Mr. Hessey also opposed the opponents' motion to reopen, arguing that this court's ruling in Hessey I that the proposed initiative represented a proper subject was the law of the case. He also maintained that there was no longer any controversy between the Board and himself which would justify the reopening of the original case (Hessey v. Burden).

The trial court consolidated the two cases and, after a hearing, entered an order on November 21, 1991, concluding that further proceedings in Hessey v. Burden were necessary under D.C. Code § 1-1320 (b)(3) because this court in Hessey I had decided only the two issues presented to it. After further briefing and argument, the court issued a memorandum opinion on January 28, 1992, holding that the section of the proposed initiative which would allow any taxpayer to appeal the assessment of any Class 4 or Class 5 property (but not the assessment of any Class 1, 2, or 3 property) was impermissible under D.C. Code § 1-1320 (b)(1) because, if enacted, it would result in a denial of equal protection of the laws. *fn6 The court rejected the opponents' other arguments. Mr. Hessey and the opponents both appeal from the January 28 order. 7

II. PROCEDURAL ISSUES

A. The proper application of D.C. Code § 1-1320 (b)

Buried deep in the turgid prose of D.C. Code § 1-1320 are both the standard by which the Board of Elections determines a proposed initiative measure to be a proper subject and the statutory grant of standing to the proponents of a Board-rejected initiative to seek judicial review of the Board's decision. The Board, as the body that takes the first step in the process by which initiatives are reviewed, must apply both the procedural and substantive provisions of section 1-1320 (b). Our first task here is to give the Board, and future proponents and opponents of initiatives, some guidance on the procedural requirements of this densely written statute.

A review of what happened in the instant case illustrates well the inefficiency with which section 1-1320 (b) has thus far been applied. Although the Board was faced in the earliest stages of this protracted dispute with seven challenges to the proposed initiative, it considered only two of those challenges when it ruled that the Taxpayers' Act was not a "proper subject" under section 1-1320 (b). As a result of this partial ruling, the other five challenges made by the opponents were left in limbo while the Board's grounds for rejection of the initiative were considered by the Superior Court and then by this court in Hessey, I. The opponents' motion to reopen the proceedings finally brought back from limbo the issues left unresolved by the Board (and consequently by the courts). The trial court was thus faced with a choice between (a) refusing to allow the opponents to assert potentially valid objections to the proposed initiative and (b) reopening a case which had already been through the courts once and was ready for the next step, whatever that might be. The trial court correctly chose option (b), but that choice prolonged the procedural odyssey on which this initiative has been forced to travel.

D.C. Code § 1-1320 (b)(3) empowers the Superior Court, after the Board has rejected a proposed initiative measure, to decide whether that measure is a "proper subject of initiative . . . under the terms of title IV of the District of Columbia Self-Government and Governmental Reorganization Act . . . ." *fn8 It further provides that "if the determines that the issue presented by the measure is a proper subject of initiative . . . it shall issue an order requiring the Board to accept the measure." We read this language as giving to the Superior Court the power to conduct its own independent, de novo examination of a proposed initiative once it has acquired jurisdiction of the case. The court is not limited to a mere review of the factors considered by the Board, although it may, and in most cases should, take those factors into account in making its decision. *fn9

Since the Superior Court is thus empowered to determine independently whether a proposed initiative is a proper subject, it certainly could have reached all seven of the challenges to the Taxpayers' Act when it first considered that initiative. It appears from the record that the court was aware of at least some of them. *fn10 But no party really had any incentive to raise the unadjudicated claims before the court after the Board had made its ruling. The opponents had achieved their goal of persuading the Board that the proposed initiative was not a proper subject. They had successfully defeated the initiative with only two arrows; they were understandably content to leave the other five in their quiver for later use. It was likewise against Mr. Hessey's interest to call attention to the five remaining challenges, because to do so would invite the court to consider whether there were any other reasons why his initiative might not be a proper subject.

D.C. Code $1-1320 sets up a procedure whereby the two principal actors in the drama, the Board and the Superior Court, perform their roles in sequence. Given this statutory scheme, we hold that the Board, in deciding whether to accept or reject a proposed initiative under D.C. Code $1-1320 (b)(1), must consider and rule on all challenges to the initiative when they are raised, regardless of the merits of any one. As the only neutral party in the debate over whether this particular initiative was a proper subject, the Board should have ensured that the court would consider all seven challenges at once. The Board could have accomplished that result by itself addressing all seven when the opponents first raised their challenges to the proposed initiative. We direct the Board to follow such a course in the future, and to consider all the challenges to a proposed initiative when they are first presented so that the court, faced with a mandamus application under D.C. Code § 1-1320 (b)(3), may have the benefit of the Board's thinking on each issue. In this case, had the Board considered the opponents' seven challenges at the outset rather than just two, the protracted, tortuous litigation which has kept this initiative tied in knots for more than two years could have been avoided. *fn11

B. The Board's misreading of Hessey I

This case was also needlessly complicated by the Board's premature preparation of the summary statement, short title, and legislative form of the proposed initiative before all challenges to that initiative had been finally resolved. The Board erroneously read this court's opinion in Hessey I as holding conclusively that the proposed initiative was a "proper subject" under D.C. Code § 1-1320 (b); as a result, it went on to formulate the summary statement, short title, and legislative form of the initiative in accordance with D.C. Code § 1-1320 (c). *fn12 This interpretation of Hessey I simply ignored the fact that there were five more substantive challenges to the initiative which had not yet been adjudicated by the Board or by any court. Further court proceedings were surely foreseeable after our decision in Hessey I and the Board's attempt to move the process along to the next step was unwarranted.

In Hessey I we reversed the Superior Court's determination that the initiative was not a proper subject on the two grounds asserted. That reversal, however, did not terminate the case. After an appellate reversal of its ruling, a trial court may take any affirmative action so long as that action is not inconsistent with the appellate decision. We made this clear more than forty years ago in Pyramid National Van Lines, Inc. v. Goetze, 66 A.2d 693 (D.C. 1949):

Where a judgment previously entered for a defendant is reversed without further order, the mandate to that effect does not preclude any other affirmative action unless specifically directed by the appellate court. . . . The general rule is that the lower court is free to make any order or direction in further progress of the case not inconsistent with the appellate decision as to any question not presented or decided by such decision.

Id. at 694 (citation omitted); see also Mutual Life Insurance Co. v. Hill, 193 U.S. 551, 553-554, 24 S.Ct. 538,48 L.Ed. 788 (1904) ("the rule is that a judgment of reversal is not necessarily an adjudication by the appellate court of any other than the questions in terms discussed and decided"); 5B C.J.S. Appeal ...


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