Appeals from the Superior Court of the District of Columbia (CA-8229-02). (Hon. Jeanette J. Clark, Trial Judge).
Before Wagner, Chief Judge, Reid, Associate Judge, and Steadman, Senior Judge.*fn2
The opinion of the court was delivered by: Steadman, Senior Judge
In November 2002, the voters of the District of Columbia approved and adopted the "Treatment Instead of Jail for Certain Non-Violent Drug Offenders Initiative of 2002," which provided for substance abuse treatment as an alternative to incarceration for certain drug offenses. The District of Columbia brought suit to invalidate the initiative on the ground that it fell within the exclusion from the initiative process of "laws appropriating funds." D.C. Code § 1-204.101(a) (2001); see also D.C. Code § 1-1001.16(b)(1). The trial court granted summary judgment in favor of the District. The parties agree that there are no genuine issues of material fact in dispute. Thus, the sole legal question before us is whether the Treatment Instead of Jail Initiative is a "law appropriating funds" and therefore was not lawfully adopted through the initiative process. We affirm.
On February 14, 2002, the District of Columbia Campaign for Treatment ("the Campaign") presented to the District of Columbia Board of Elections and Ethics ("the Board") the "Treatment Instead of Jail for Certain Non-Violent Drug Offenders Initiative." The original initiative included a section providing for the establishment of "a Substance Abuse Treatment Fund" for the purposes of carrying out the Act and to be "comprised of general revenue funds appropriated by a line item in the budget." The section also directed how such funds were to be spent. In response to a request by the Board, both the District of Columbia Council and the District of Columbia Office of Corporation Counsel ("Corporation Counsel") opined that the original initiative interfered with the Council's "appropriation power to identify revenues and allocate them" and therefore violated "the appropriation limitation on initiatives" under D.C. Code § 1.204.101(a). On March 8, 2002, the Board rejected the original initiative, determining that it was a law appropriating funds.
Subsequently, the Campaign made four major revisions to the initiative, including: (1) the removal of the Substance Abuse Treatment Fund; (2) the addition of subsection 5(f), which provided that no one eligible for treatment under the initiative could be incarcerated unless that person had been provided an opportunity for treatment and either had refused or had been removed from the program; (3) the alteration of the effective date to the next fiscal year; and (4) the addition of language subjecting narcotics replacement therapy in subsection 6(d) to the appropriation of funds.
The Board again sought the advice of the District of Columbia Council and Corporation Counsel as to whether the revised Treatment Instead of Jail Initiative was a proper subject for the initiative process. On April 3, 2002, the Board accepted the initiative. On April 5, 2002, Corporation Counsel opined that the revised initiative would force the Council to "seek appropriations to pay for treatment" and "'intrude upon the discretion of Council to allocate the District government revenues in the budget process.'" Quoting Hessey v. District of Columbia Bd. of Elections & Ethics, 601 A.2d 3, 20 (D.C. 1991) (en banc).] Corporation Counsel interpreted the initiative to require that substance abuse treatment be provided to eligible offenders and asserted that the initiative's repeated use of the term "shall" created a duty upon the District to carry out its provisions.
On July 8, 2002, the Campaign submitted to the Board a petition supporting the revised initiative with 45,801 signatures. The Board certified the initiative for the ballot. On September 20, 2002, the District filed a complaint for declaratory and injunctive relief against the Board, alleging the Board erred in accepting the initiative because it is a law appropriating funds. On October 10, 2002, the trial court granted the Campaign's request to intervene in the action before the court. On election day, November 5, 2002, the initiative was presented to the voters, with a summary statement reading:
This initiative, if passed, will:
* Provide substance abuse treatment instead of conviction or imprisonment to eligible non-violent, first-or second-time defendants charged with illegal possession or use of drugs, except those classified as Schedule I drugs under the federal Controlled Substances Act (including marijuana);
* Provide a plan for rehabilitation to individuals accepted for substance abuse treatment;
* Provide for dismissal of legal proceedings for defendants upon successful completion ...