The opinion of the court was delivered by: Emmet G. Sullivan, United States District Judge
Plaintiffs in this matter are proponents of a ballot initiative
entitled the Medical Marijuana Initiative of 2002 ("Initiative"). The
District of Columbia Board of Elections and Ethics ("Board") has refused
to certify plaintiffs' proposed ballot initiative because the Board is of
the opinion that to do so would violate the Barr Amendment, Pub. L.
107-96, § 127, 115 Stat. 923 (2001). Plaintiffs claim that the Barr
Amendment, which prohibits the District of Columbia from expending any
monies to enact a law that would decrease the penalties for use or
distribution of a Schedule I controlled substance, is unconstitutional as
applied to their ballot initiative. They commence this action against the
Board and the United States*fn1 and seek injunctive relief.
The Constitution of the United States mandates that the United States
Congress shall act as the legislature for the District of Columbia. U.S.
Const., Art. I, § 8, cl. 17. Acting in its legislative capacity,
Congress, with the approval of the President, has enacted a Home Rule Act
that gives the District's citizens some measure of democratic
governance. District of Columbia Self-Government and Governmental
Reorganization Act ("Home Rule Act"), Pub. L. No. 93-198, 87 Stat. 774
(1973), codified at D.C. Code § 1-201 et seq. (as amended)
Consequently, although District citizens do not have the right to vote in
Congressional elections, Adams v. Clinton, 90 F. Supp.2d 35, 70 (D.D.C.
2000), aff'd, 531 U.S. 941, S.Ct. 336 (2000), they are able to vote for a
non-voting delegate to the House of Representatives, for D.C. City
Council members, and for initiatives placed on the ballot by the
When Congress enacted the Barr Amendment, which constitutes
the subject of this lawsuit, it prohibited the District from using any
federally appropriated funds to permit the citizens to vote on a ballot
initiative that would decrease penalties associated with a Schedule I
controlled substance. In short, Congress removed a specific viewpoint
from the realm of permissible initiatives on which District citizens may
vote to enact legislation.
While Congress has a unique relationship to the District, it is
duty-bound to legislate within the limits of the Constitution. The
Constitution does not allow Congress to preclear acceptable viewpoints
for public debate and expression:
[T]he people in our democracy are entrusted with the
responsibility for judging and evaluating the relative
merits of conflicting arguments. They may consider, in
making their judgment, the source and credibility of
the advocate. But if there be any danger that the
people cannot evaluate the information and arguments
advanced . . ., it is a danger contemplated by the
Framers of the First Amendment.
First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 791-92 (1978).
Constitutional precedent of long-standing persuades the Court that the
Barr Amendment is a viewpoint discriminatory restriction on plaintiffs'
political speech and is consequently unconstitutional. Upon careful
consideration of the motions for summary judgment, the responses and
replies thereto, oral argument by counsel on February 25, 2002, and the
relevant statutory and case law, the Court grants plaintiffs' motion for
summary judgment and denies defendant's motion for summary judgment. The
enforcement of the Barr Amendment with respect to the plaintiffs and
their proposed ballot initiative is permanently enjoined.
Plaintiffs seek Board approval of a proposed ballot initiative, Medical
Marijuana Initiative of 2002, so that they may gather signatures to
support the inclusion of the initiative on the ballot at the next general
election. Plaintiffs' efforts to promote the Medical Marijuana Initiative
implicate issues concerning federal controlled substance law, the
District of Columbia's Home Rule Act and the relationship between
Congress and the District of Columbia.
In the 1998 general election, District of Columbia voters cast ballots
for an initiative similar to the one at issue here. The initiative was
entitled Medical Marijuana Initiative of 1998 ("Initiative 59") and would
have permitted chronically ill individuals to use marijuana without
violating the D.C. Code. On September 17, 1998, the Board certified
Initiative 59 as a proper subject for the November 3, 1998 election
Congress responded to the Board's approval of the ballot initiative by
enacting what has come to he known as the Barr Amendment, named after its
sponsor, Representative Bob Barr. On October 11, 1998, Congress enacted
the initial version of the Amendment as part of the District of Columbia
Appropriations Act, 1999, Pub. L. No. 105-277, § 171, 112 Stat. 2681
(1998). As originally enacted, the Amendment provided:
None of the funds contained in tithe District of
Columbia Appropriations Act] may be used to conduct
any ballot initiative which seeks to legalize or
otherwise reduce the penalties associated with the
possession, use or distribution of any schedule I
substance under the Controlled
Substances Act . . . or any tetrahydrocannabinols
The Board permitted D.C. residents to vote on Initiative 59 because the
ballots had been printed prior to the enactment of the Barr Amendment.
However, the Board refused to release the election results, fearing that
to do so would violate the Barr Amendment
In Turner v. District of Columbia Board of Elections & Ethics,
plaintiffs sought a declaration that the Barr Amendment as applied to
Initiative 59 was unconstitutional. 77 F. Supp.2d 25, 26 (D.D.C. 1999)
(Roberts, J.). The United States intervened to assert the
constitutionality of the amendment. Id. Relying on the plain meaning of
the statute, the court avoided the constitutional question, and ruled as
a matter of statutory interpretation that the Barr Amendment did not
preclude the Board from counting, announcing or certifying the results of
that election. Id. at 26-28. Nevertheless, the court expressed serious
doubts that the amendment would survive constitutional scrutiny if it
were construed to prevent the certification of vote results. Id. at
28-34. Accordingly, the Turner court ordered the Board to announce the
results of Initiative 59, which disclosed that 69 percent of District
voters had supported the ballot initiative.
While the Turner litigation was pending, Representative Bob Barr
introduced a revised version of his amendment to be included in the
District of Columbia Appropriations Act for the 2000 fiscal year. The
revised version was voted out of committee on July 22, 1999, see H.R.
Rep. No. 106-249, at 94 (1999), and was the subject of a debate on the
House floor a week later, see 145 Cong. Rec. H6638-42 (July 29, 1999).
President Clinton vetoed the original version of the D.C. Appropriations
Act for fiscal year 2001, in part due to the inclusion of the revised
Barr Amendment. 145 Cong. Rec. H8941-42, H. Doc. No. 106-153 (September
28, 1999) (veto message of Pres. Clinton). The D.C. Appropriations Act
was returned to the House, where there was once again debate on the House
floor with respect to the scope and purpose of the Barr Amendment. See,
e.g., 145 Cong. Rec. H10086 (October 14, 1999) (Rep. Barr stated "We sure
as heck are not going to make it legal to do drugs in the District of
Columbia. That, Mr. Speaker, is precisely what the District of Columbia
wants to do.")
A revised version of the Barr Amendment was included in the final
District appropriations law for fiscal year 2000. As enacted, it stated:
(a) None of the funds contained in this Act may be
used to enact or carry out any law, rule, or
regulation 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
(b) The Legalization of Marijuana for Medical
Treatment Initiative of 1998, also known as
Initiative 59, approved by the electors of the
District of Columbia on November 3, 1998, shall
not take effect.
Pub. L. 106-113, § 167, 113 Stat. 1530 (1999) (emphasis added)
Identical language was included in both the District of Columbia
Appropriations Act for fiscal year 2001, see Pub. L. 106-522, § 143,
114 Stat. 2471 (2000), and fiscal year 2002, see Pub. L. 107-96, §
127, 115 Stat. 923 (2001). The Barr Amendment for fiscal year 2002 is
presently in effect.
The processing of Medical Marijuana Initiative of 2002 would require
the Board to use funds contained in the D.C. Appropriations Act to enact
or carry out any law to legalize or otherwise reduce penalties associated
with the possession, use, or distribution of marijuana, a Schedule I
substance under the Controlled Substances Act. On December 14, 2001, the
Board issued a memorandum opinion stating that to process plaintiffs'
initiative for placement on the ballot would constitute a violation of
the Barr Amendment because it would necessarily expend federally
appropriated funds in reviewing the initiative. Consequently, the Board
refused to process the initiative.
On December 18, 2001, plaintiffs filed the instant lawsuit. On January
3, 2002, they moved for a temporary restraining order and preliminary
injunction. Following a status hearing on January 8, 2002 and pursuant to
Fed.R.Civ.P. 65(a)(2), the Court consolidated plaintiffs' motion for
a temporary restraining order and for injunctive relief with the merits
proceeding. Plaintiffs and defendant United States filed cross-motions for
summary judgment. The Board filed a short explanatory memorandum
outlining the procedures for reviewing a ballot initiative and placing it
on the ballot.
C. The Controlled Substances Act
Plaintiffs' initiative would modify penalties for marijuana use,
possession and distribution set out in the D.C. Code. Current District of
Columbia criminal law prohibits the possession and distribution of
marijuana. See D.C. Code § 48-901.02, et seq. However, federal law
also regulates the use, possession and distribution of marijuana in the
District of Columbia.
The Controlled Substances Act, 21 U.S.C. § 801, et seq.,
establishes a comprehensive federal regulatory scheme that places drugs
into one of five "Schedules." Marijuana is classified as a Schedule I
substance, which means that Congress found that it has a "high potential
for abuse," that it has "no currently accepted medical use in treatment
in the United States," and that there is a "lack of accepted safety for
use of the drug or other substance under medical supervision."
21 U.S.C. § 812 (b)(1). As a result of these findings, Congress
mandated that marijuana and other substances in Schedule I be subject to
the most stringent regulation. In particular, no physician may dispense
marijuana to any patient outside of a strictly controlled research
project. See 21 U.S.C. § 823 (g); United States v. Oakland Cannabis
Buyers' Coop., 532 U.S. 483, 492, 121 S.Ct. 1711, 1718 (2001); accord
Alliance for Cannabis Therapeutics v. Drug Enforcement Agency,
15 F.3d 1131, 1137 (D.C. Cir. 1994) (holding that DEA decision not to
reclassify marijuana from Schedule I to Schedule II was not arbitrary).
While plaintiffs and the United States disagree as to the significance
of the District of Columbia's limited self-government for the instant
matter, it is clearly a factor in the Court's analysis.
The United States Constitution expressly grants Congress the power to
"exercise exclusive Legislation in all Cases whatsoever, over such
District (not exceeding ten Miles square), as may, by Cession of
particular States, and the Acceptances of Congress, become the Seat of
Government of the United States." U.S. Const., Art. I, § 8, cl. 17.
In 1973, Congress provided the District with a limited form of
self-government, or "home rule." See Home Rule Act, codified at D.C. Code
§ 1-201 et seq. (as amended). Title IV of the Home Rule Act creates a
tripartite form of government for the District, with a popularly elected
Council and Mayor and a judicial system established by Congress. See
Hessey v. District of Columbia Bd. of Elects. & Ethics, 601 A.2d 3, 14
(D.C. 1991) (en banc). The Home Rule Act reserves to Congress the
"right, at any time, to exercise its constitutional authority as
legislature for the District on any subject . . . including legislation
to amend or repeal any law in force in the District prior to or after
enactment of this chapter and any act passed by the Council." D.C. Code
§ 1-216.01. The Home Rule Act provides that the District of Columbia
government may expend monies only to the extent that such expenditures
are provided for by an Act of Congress. § 1-204.46.
The D.C. Council has authority over "all rightful subjects of
legislation." § 1-203.02. This authority is subject to limitations
mandated by Congress. For example, the D.C. Council may not enact
legislation with respect to the local judiciary, § 1-206.02(a)(4),
with respect to the Commission on Mental Health, § 1-206.02(a)(7),
or impose income taxes on individuals not residing in the District,
§ 1-206.02(a)(5). Before measures approved by the Council can have
the force of law, they must be transmitted to Congress for its
consideration. § 1-206.02(c)(1). Only if Congress does not pass a
joint resolution disapproving of the measure within 30 days does it take
In 1978, the Home Rule Act was amended to grant District residents the
right to enact laws directly through the ballot initiative process. See
Initiative, Referendum and Recall Charter Amendments Act of 1977, D.C.
Law 2-46, codified at D.C. Code § 1-204 et seq. A ballot initiative
is defined as "the process by which the electors of the District of
Columbia may propose laws (except laws appropriating funds) and present
such proposed laws directly" to the voters. § 1-204.101(a).
The District of Columbia Board of Elections and Ethics ("Board") is an
independence agency responsible for overseeing the ballot initiative
process. The Board ensures that any proposed initiative is a "proper
subject" for a ballot initiative. § 1-1001.16(b). A "proper subject"
for an initiative is one that does not conflict with title IV of the Home
Rule Act, Hessey v. District of Columbia Bd. of Elecs. & Ethics,
601 A.2d 3, 14 (D.C. 1991) (en banc); does not propose a law
appropriating funds; § 1-1001.16(b)(1)(D); and does not violate the
District's anti-discrimination statute, § 1-1001.16(b)(1)(C). The
Board may also keep a measure off the ballot if it would be patently
unconstitutional if enacted. See Comm. for Voluntary Prayer v. Wimberly,
704 A.2d 1199 (D.C. 1997).