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TURNER v. DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS

September 17, 1999

WAYNE TURNER, ET AL., PLAINTIFFS
v.
DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, DEFENDANT AND UNITED STATES OF AMERICA, INTERVENOR.



The opinion of the court was delivered by: Roberts, District Judge.

MEMORANDUM OPINION

Plaintiffs, five registered District of Columbia voters and a committee of such voters, and the defendant, the District of Columbia Board of Elections and Ethics ("the Board"), seek a declaratory judgment that § 171 of Congress's 1998 District of Columbia Appropriations Act (the "Barr Amendment") is unconstitutional if it bars the Board from counting, releasing, and certifying the results of the November 3, 1998 D.C. referendum known as Initiative 59. The United States intervened defending the constitutionality of the Barr Amendment, claiming that it bars certifying but not counting and announcing the election results. The Court held a consolidated hearing on the merits of plaintiffs' motion for a preliminary injunction and on the parties' cross motions for summary judgment. Because the Court holds that the Barr Amendment does not preclude the Board from counting, announcing or certifying the results of the referendum on Initiative 59, the Board may release and certify them and the Court need not reach the constitutional question.

Factual Background

On September 17, 1998, the Board certified a ballot initiative entitled Initiative 59 as proper for placement on the ballot for the November 1998 District of Columbia elections after the measure garnered the requisite support through signatures. (Def.'s Mem. Summ. J., Attmts. Ex. 2, Miller Decl. at 4 ("Miller Decl.").) Initiative 59, known as the Medical Marijuana Initiative, was designed, in part, to allow chronically ill individuals to use marijuana without violating criminal provisions of the D.C.Code. (Def.'s Mem. Supp. Summ. J. at 2-3 ("Def.'s Mem.").) Initiative 59 states in part:

  Sec. 1 All seriously ill individuals have the right to obtain
  and use marijuana for medical purposes when a licensed physician
  has found the use of marijuana to be medically necessary. . . .
  Sec. 2 Medical patients who use, and their primary caregivers
  who obtain for such patients, marijuana for medical purposes
  upon the recommendation of a licensed physician do no[t] violate
  the District of Columbia Uniform Controlled Substances Act of
  1981. . . .

(Def.'s Mem., Attmts., Ex. 3.)

On October 21, 1998, Congress enacted the Barr Amendment as part of the District of Columbia Appropriations Act. Omnibus Consolidated Appropriations Bill of 1998, Pub.L. No. 105-277, 112 Stat. 2681-150 (1998). The Barr Amendment provides that:

    None of the funds contained in [the District of Columbia
  Appropriations Act] may be used to conduct any ballot initiative
  which seeks to legalize or otherwise reduce penalties associated
  with the possession, use, or distribution of any schedule I
  substance under the Controlled Substances Act . . . or any
  tetrahydrocannabinols derivative.

Id. Because Initiative 59 attempts to reduce penalties for some use and possession of marijuana, it falls under the purview of the Barr Amendment.

On November 3, 1998, residents of the District of Columbia voted on Initiative 59 since it had been printed on the ballots prior to passage of the Barr Amendment. (Def.'s Mem. at 8.) The Board has not released the results of the vote on Initiative 59, however, for fear of violating the Barr Amendment.

I

Interpreting the Barr Amendment

The text of the Barr Amendment prevents the Board from using funds to "conduct any ballot initiative" regarding any measure designed to lessen penalties for drug possession, use, or distribution. The question, then, is whether counting, releasing, and certifying the results of the election is part of conducting a ballot initiative.

The plaintiffs argue in their motion for summary judgment that the Amendment should apply to the activity that takes place only up to and including election day but not any of the duties required of the Board after election day. (Pls.' Mem. Supp. Summ. J. at 18 ("Pls.' Mem.").) This election, they argue, was conducted and concluded on November 3, 1998. According to the plaintiffs, the plain language of the Barr Amendment should not prevent release and certification of the election results because those activities are not part of the conduct of a ballot initiative. (Id.)


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