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MARIJUANA POLICY PROJECT v. D.C. BOARD OF ELEC. AND ETH.

March 28, 2002

MARIJUANA POLICY PROJECT, ET AL., PLAINTIFFS,
V.
DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Emmet G. Sullivan, United States District Judge

  MEMORANDUM OPINION

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 citizenry. 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.

I. BACKGROUND

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.

A. The Barr Amendment

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 ballot.

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 derivative.

Id.

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 tetrahydrocannabinols derivative.
(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.

B. Procedural History

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).

D. Home Rule

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 effect. Id.

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).


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