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Jackson v. District of Columbia Board of Elections and Ethics

July 15, 2010

HARRY R. JACKSON, JR., ET AL., APPELLANTS,
v.
DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, APPELLEE, AND DISTRICT OF COLUMBIA, INTERVENOR-APPELLEE.



Appeal from the Superior Court of the District of Columbia (CAB-8613-09) (Hon. Judith N. Macaluso, Trial Judge).

The opinion of the court was delivered by: Thompson, Associate Judge

Argued en banc May 4, 2010

Before WASHINGTON, Chief Judge, and RUIZ, REID, GLICKMAN, KRAMER, FISHER, BLACKBURNE-RIGSBY, THOMPSON and OBERLY, Associate Judges.

Opinion for the courtby Associate Judge THOMPSON, joined by RUIZ, REID, KRAMER and BLACKBURNE-RIGSBY, Associate Judges.

Dissenting opinion by Associate Judge FISHER, joined by WASHINGTON, Chief Judge, and GLICKMAN and OBERLY, Associate Judges, at page 53.

The specific issue before us in this appeal is whether the District of Columbia Board of Elections and Ethics (the "Board") acted lawfully when it rejected appellants' proposed initiative measure on the ground that the measure would authorize, or have the effect of authorizing, discrimination prohibited by the Human Rights Act, and therefore was not a proper subject of initiative. As will be seen, however, the underlying issues are much broader and more fundamental. They concern (1) the allocation of the power to enact laws governing the District of Columbia, within the framework of the District of Columbia Home Rule Act; (2) the broad legislative authority that Congress conferred on the Council of the District of Columbia ("the Council" or "the Home Rule Council"), subject to specific enumerated limitations; (3) the deference this court owes to the Council with respect to the meaning of the law that the Council passed to enable the people of the District of Columbia to share in the Council's legislative power through an amendment to the Home Rule Charter, (and, in particular, the deference we owe to the Council's interpretation of the Charter amendments, as reflected in the nearly contemporaneous implementing legislation that the Council passed); (4) the right of the people of the District to legislate through the initiative process, a right that Congress affirmatively approved when it voted to accept the Charter amendment; and (5) the unique importance of the Human Rights Act, the District's comprehensive anti-discrimination law, which the people of the District of Columbia, speaking through their elected representatives, have long intended to have the "highest priority." Thus, once again, we are called upon "to interpret a unique and complex governmental structure" that is the District of Columbia under Home Rule. Convention Ctr. Referendum Comm. v. District of Columbia Bd. of Elections & Ethics, 441 A.2d 889, 916 (D.C. 1981) (en banc) ("Convention Ctr. III").

Appellants' challenge focuses on the validity of Council legislation that requires the Board to refuse to accept any proposed initiative that would authorize, or have the effect of authorizing, discrimination prohibited by the Human Rights Act (a requirement that we refer to herein as the "Human Rights Act safeguard"). Specifically, appellants contend that, in establishing that requirement, the Council overstepped its authority and acted in contravention of the District of Columbia Charter. Alternatively, appellants contend that the proposed initiative would not authorize or have the effect of authorizing prohibited discrimination. We disagree with both contentions, and we therefore affirm the Superior Court's rulings that the Council acted lawfully in imposing the Human Rights Act safeguard and that the Board correctly determined that the safeguard required it to reject the proposed initiative. As we go on to explain, we reach this result because (1) resolution of this appeal turns on what legislative authority the Council intended to share with the people of the District of Columbia when it passed the Charter Amendments Act (the "CAA"); (2) the Human Rights Act safeguard is not inconsistent with the Council's intent as conveyed by the language of the CAA; (3) this court owes substantial deference to the Council's legislative interpretation that the Human Rights Act safeguard carries out the intent of the CAA; (4) the relevant history convinces us that the Council could not have intended to authorize, as a proper subject of initiative, any initiative that would have the effect of authorizing discrimination prohibited by the Human Rights Act; (5) the Home Rule Act gave the Council authority to direct the Board, through the legislation that the Council passed to implement the CAA, to refuse to accept an initiative that would authorize prohibited discrimination; and (6) the Board correctly determined that the proposed initiative would have the effect of authorizing such discrimination. On the last of these points, our court is unanimous.

I. Factual and Procedural Background

On May 5, 2009, the Council passed the Jury and Marriage Amendment Act of 2009 ("JAMA"). D.C. Act 18-70, 56 D.C. Reg. 3797 (May 15, 2009). JAMA amended the District's marriage laws to provide that the District will recognize lawful, same-sex marriages entered into in other jurisdictions. See D.C. Code § 46-405.01 (2009 Supp.).*fn1 JAMA became law on July 7, 2009, after Congress did not disapprove it.

On September 1, 2009, appellants-Harry Jackson, Jr., Robert King, Walter Fauntroy, James Silver, Anthony Evans, Dale Wafer, Melvin Dupree, and Howard Butler-filed with the Board their proposed "Marriage Initiative of 2009," which is the subject of this appeal. Through the proposed initiative, appellants sought to undo JAMA by amending Title 46, Subtitle I, Chapter 4 of the D.C. Code to state: "Only marriage between a man and a woman is valid or recognized in the District of Columbia." After a public hearing on October 26, 2009, the Board rejected the proposed initiative, finding that it would "authorize[], or . . . have the effect of authorizing, discrimination" prohibited under the Human Rights Act and therefore was "not a proper subject of initiative." D.C. Code § 1-1001.16 (b)(1)(C) (2006).*fn2 Appellants sought a writ of mandamus, asking the Superior Court to order the Board to take the necessary steps to certify the initiative to allow it to be placed on the ballot. Appellants also moved for summary judgment. The District of Columbia intervened in support of the Board and moved to dismiss the complaint or, in the alternative, for summary judgment.

In the meantime, the Council adopted the Religious Freedom and Civil Marriage Equality Amendment Act of 2009 (the "Marriage Equality Act") upon its second reading on December 15, 2009. D.C. Act 18-248, 57 D.C. Reg. 27 (Jan. 1, 2010). This legislation, which became effective as D.C. Law 18-110 on March 3, 2010, see 57 D.C. Reg. 1833 (Mar. 5, 2010), expanded the definition of marriage in the District to include same-sex couples: "Any person may enter into a marriage in the District of Columbia with another person, regardless of gender, unless the marriage is expressly prohibited by" District law. D.C. Code § 46-401 (a) (Supp. 2010); 57 D.C. Reg. 27 (Jan. 1, 2010). Thus, the Marriage Equality Act makes civil marriage available to same-sex couples, just as it does to opposite-sex couples. It also provides that judges of record, the Clerk of the Superior Court of the District of Columbia or such deputy clerks as the Clerk may designate, and "every minister of any religious society approved or ordained according to the ceremonies of his religious society" may celebrate marriages in the District. Id. § 46-406 (b). However, it does not require a minister of any religion to celebrate any marriage. Rather, the Council expressed in the preamble to D.C. Act 18-248 its intent to "ensure that no minister of any religious society . . . shall be required to solemnize or celebrate any marriage." 57 D.C. Reg. 27.*fn3 The Mayor signed the Marriage Equality Act, it was transmitted to Congress on January 5, 2010, see 57 D.C. Reg. 1833, and it became law on March 3, 2010.*fn4 Id.

By the effective date of the Marriage Equality Act, the Superior Court had ruled on the cross-motions for summary judgment in this litigation. On January 14, 2010, the court granted the District's motion for summary judgment, rejecting appellants' argument that the Human Rights Act safeguard provision is an invalid restriction on the right of initiative and agreeing with the Board that appellants' proposed initiative would authorize discrimination. This appeal followed. We ordered that the appeal be heard en banc and granted motions by amici to file briefs.

II. Legal Framework

An understanding of the powers of the Council under the Home Rule Act, of the District Charter amendment that created the rights of initiative and referendum, and of the nearly contemporaneous legislation that the Council passed, is critical to our resolution of this appeal. Accordingly, we describe these matters in some detail.

A. The Home Rule Act

The Constitution vests Congress with the authority "[t]o exercise exclusive Legislation" over the District. U.S. Const. art. I, § 8, cl. 17. In 1973, Congress passed the District of Columbia Self-Government and Government Reorganization Act, Pub. L. No. 93-198, 87 Stat. 777, commonly known as the "Home Rule Act." Title IV of the Home Rule Act sets out the District of Columbia Charter, which establishes the organizational structure of the District government. D.C. Code §§ 1-204.01--1-204.115(2006). The Charter became effective when ratified by the citizens of the District of Columbia through a Charter referendum vote. See Home Rule Act, §§ 701, 704 (codified at D.C. Code §§ 1-207.01, 1-207.04 (2006)). The Charter created a tripartite form of government within the District and vested in the Council the broad legislative power granted to the District. D.C. Code § 1-204.04; Wilson v. Kelly, 615 A.2d 229, 231--32 (D.C. 1992). Section 302 of Title III of the Home Rule Act describes that legislative power in broad terms: "Except as provided in sections 601, 602, and 603 [of the Home Rule Act, codified at D.C. Code §§ 1-206.01 to 1-206.03], the legislative power of the District shall extend to all rightful subjects of legislation within the District consistent with the Constitution of the United States and the provisions of this chapter subject to all the restrictions and limitations imposed upon the states by the 10th section of the 1st article of the Constitution of the United States." D.C. Code § 1-203.02 (2006).*fn5

Under the Home Rule Act, the Council is empowered to pass legislation by a majority vote after two readings, at least thirteen days apart. See D.C. Code § 1-204.12 (a). In general, if the Mayor does not veto an act of the Council within ten days (or if the Council overrides a veto by a two-thirds vote), Council-passed legislation becomes effective after a thirty-legislative-day layover in Congress, unless disapproved by concurrent resolution. D.C. Code § 1-206.02 (c)(1) (2006).

Part E of Title VII of the Home Rule Act set forth amendments to the District of Columbia Election Act, D.C. Code §§ 1-1101--1-1115 (1973), and also contained a provision, section 752, entitled "District Council Authority Over Elections." Section 771 (e) of the Home Rule Act provided that "Part E of Title VII shall take effect on the date on which title IV is accepted by a majority of the registered qualified electors in the District voting on the charter issue in the charter referendum." Thus, section 752 (codified as D.C. Code § 1-207.52 (2006)), became effective upon ratification of the Charter. Section 752 provides that "[n]otwithstanding any other provision of this Act or of any other law, the Council shall have authority to enact any act or resolution with respect to matters involving or relating to elections in the District." Id.

B. The Charter Amendment Act

The legislative history of the Home Rule Act shows that Congress considered including in the Act a provision that would have directly conferred on the people of the District the power to propose and enact legislation through an initiative process. See Home Rule Legislation: Hearing Before the Comm. on the Dist. of Columbia on S. 1603 and S. 1626, 92d Cong. 161 (1971) (hereinafter, "Hearing on S. 1603 and S. 1626 "). As finally enacted, however, the Home Rule Act did not provide for the power of initiative (or of referendum). Section 303 of the Act did, however, provide that the Charter may be amended "by an act passed by the Council and ratified by a majority of the registered qualified electors of the District voting in the referendum held for such ratification."

D.C. Code § 1-203.03 (a) (2006).*fn6 On May 17, 1977, the Council exercised its authority under section 303 to pass the Initiative, Referendum, and Recall Charter Amendment Act of 1977 (the "CAA"). 24 D.C. Reg. 199 (July 8, 1977); see also 25 D.C. Reg. 244 (July 14, 1978). The Council amended the CAA on November 1, 1977, making technical changes to the legislation before it was presented to the voters. H.R. Rep. No. 95-891, at 24 (1978). The District's electorate ratified the CAA on November 7, 1977, each House of Congress affirmatively approved it, and the CAA (and, thus, an amended Charter providing for the right of initiative) became effective on March 10, 1978. Hessey v. District of Columbia Bd. of Elections & Ethics, 601 A.2d 3, 12 (D.C. 1991) (en banc); Convention Ctr. Referendum Comm. v. District of Columbia Bd. of Elections & Ethics, 399 A.2d 550, 551 (D.C. 1979) ("Convention Ctr. I"); 25 D.C. Reg. 244 (July 14, 1978).

The CAA, codified at D.C. Code §§ 1-204.101--1-204.115, provides in its definitional section that "[t]he term 'initiative' means 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 registered qualified electors of the District of Columbia for their approval or disapproval." Id. § 1-204.101 (a).*fn7 The CAA provided a "very broad" right for the District's electorate to utilize the initiative and referendum process.*fn8 Hessey, 601 A.2d at 12. However, the initiative and referendum provisions were not self-executing and did not include particulars about how the initiative or referendum process would be implemented. Convention Ctr. I, 399 A.2d at 552--53. Instead, the CAA affirmatively required the Council to "adopt such acts as are necessary to carry out the purpose of [the Act] within 180 days of the effective date of [the Act]." D.C. Code § 1-204.107.

C. The Initiative Procedures Act

On April 10, 1978, a month after the CAA became effective, the Council introduced implementing legislation as Bill 2-317. D.C. Council, Comm. on Gov't Operations,Report No. 1 onBill 2-317 at 1 (May 3, 1978) (hereinafter, "IPA Report"). Many of those who testified before the Council on the bill expressed support for a human rights safeguard in the implementing legislation, and the Committee Report notes that, subsequent to the public hearings on the bill, the Council received "myriad telephone calls" in support. IPA Report, at 4--6. Bill 2-317 was reintroduced as Bill 3-2 in January 1979. Convention Ctr. I, 399 A.2d at 553; D.C. Council, Comm. on Gov't Operations,Report on Bill 3-2 at 1 (Jan. 31, 1979). The Council approved Bill 3-2, including the Human Rights Act safeguard, as the Initiative, Referendum, and Recall Procedures Act of 1979 (the "IPA"), which became law on June 7, 1979. D.C. Law 3-1, 1979 & 1980 D.C. Stat 7.*fn9

D. The Human Rights Act

In 1973, the pre-Home Rule District of Columbia Council promulgated Title 34 of the District of Columbia Rules and Regulations, known as the "Human Rights Law" (34 DCRR §§ 1.1--35.3 (1973)). Reg. No. 73-22, 20 D.C. Reg. 345 (Nov. 17, 1973). Through the Human Rights Law, the pre-Home Rule Council declared that "[e]very individual shall have an equal opportunity to participate . . . in all aspects of life," 34 DCRR § 9.1, and it announced an intent "to secure an end . . . to discrimination for any reason other than that of individual merit, including, but not limited to discrimination by reason of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, matriculation, political affiliation, physical handicap, source of income, and place of residence or business." Id. § 1.1. The pre-Home Rule Council declared that it was using its "prerogative to legislate broadly," and that the Human Rights Law was intended to be "far-reaching." D.C. Council, Econ. Dev., Labor & Manpower Comm., Report on Title 34 at 2 (August 7, 1973) (hereinafter, "Human Rights Law Report"). The pre-Home Rule Council was explicit that it adopted the Human Rights Law pursuant to its police powers, explaining that Title 34 "shall be deemed an exercise of the police power of the District of Columbia, necessary for the protection of lives, limbs, health, comfort and quiet of all persons and the protection of all property in the District of Columbia." 34 DCRR § 1.3.*fn10

"Concerned that [the Title 34] police power regulations might not have the same force and effect as a statute, the post-Home Rule Council of the District of Columbia re-enacted the [Human Rights Law] regulations as The Human Rights Act of 1977." Blodgett v. Univ. Club, 930 A.2d 210, 217 (D.C. 2007). The bill (Bill 2-179) that became the Human Rights Act was introduced on June 16, 1977, within a month after the Council passed the original version of the CAA.*fn11 D.C. Council, Comm. on Pub. Servs. and Consumer Affairs, Report on Bill 2-179 at 1 (July 5, 1977) (hereinafter, the "Human Rights Act Report"). In reporting the bill, the Committee on Public Services and Consumer Affairs Council explained that, in doing so, it made "no substantive changes," but acted with "the sole effect [of] . . . enact[ing] that law as a statute and thus mak[ing] it a permanent part of the District of Columbia Code." Id. The Council intended to "reinforce[] . . . [its] view that the Human Rights Act is among our most important laws and is to be vigorously enforced by all agencies and officials of the District Government." Id. It also sought to "underscore the Council's intent that the elimination of discrimination within the District of Columbia should have the highest priority . . . and that the Human Rights Act should therefore be read in harmony with and as supplementing other laws of the District." Id. at 3.The Council understood that the District's Human Rights Lawwas "widely hailed as the most comprehensive of its kind in the nation" and sought to put it on "firm legal footing" by re-enacting it as a statute. Id. at 2.

The Human Rights Act, which the Council adopted on July 26, 1977, "has remained substantially unchanged since 1977, having been amended only to add new classes to the list of those already protected by the Act." Blodgett, 930 A.2d at 218 n.4. The Act continues to provide that "[e]very individual shall have an equal opportunity to participate . . . in all aspects of life, including, but not limited to" those aspects specifically described. D.C. Code § 2-1402.01 (2007). This court has noted that "[t]he Council undoubtedly intended the Human Rights Act to be a powerful, flexible, and far-reaching prohibition against discrimination of many kinds." Executive Sandwich Shoppe, Inc. v. Carr Realty Corp., 749 A.2d 724, 732 (D.C. 2000).

III. The Parties' Contentions

Appellants contend that by refusing to accept their proposed initiative, the Board denied the citizens of the District their "guaranteed right under the District of Columbia Charter to be heard" on the issue of the definition of marriage.*fn12 In ratifying the CAA, appellants argue, voters conferred upon themselves and all citizens of the District a right to utilize the initiative process with only one limitation-that the initiative process is not available to propose laws appropriating funds (something the parties agree the Marriage Initiative of 2009 does not purport to do). According to appellants, when voters approved the CAA, including its provision requiring the Council to "adopt such acts as are necessary to carry out the purpose of this subpart within 180 days of the effective date of this subpart," D.C. Code § 1-204.107, they authorized the Council only to provide "procedural" rules to facilitate the people's exercise of the right to initiative (and to do so "within 180 days," id.). Section 1-204.107 did not, appellants contend, authorize the Council to "impose additional substantive limitations on the people's right of initiative." Thus, appellants say, when the Council enacted the IPA and added the Human Rights Act safeguard, the Council exceeded the authority conferred to it by the CAA. Noting that the Charter Amendments are "in the nature of constitutional provisions," Convention Ctr. III,441 A.2d at 915,appellants emphasize that the CAA "cannot be amended or contravened by ordinary legislation [of the D.C. Council.]" Id. ("As implementing legislation, the Initiative Procedures Act is valid, of course, only insofar as it conforms to the underlying Charter Amendments"). Appellants urge us to hold that the Human Rights Act safeguard of the IPA conflicts with the broad right of initiative created by the CAA, and therefore "cannot be used as a basis for disapproving the Marriage Initiative of 2009."*fn13

In contrast, the District contends that the CAA "gave the Council the authority to determine what acts were necessary to carry out its purpose, with no provision for review of that determination by this court or any other body." The District argues that, by giving the Council this authority without defining the purpose and without including words of limitation on the types of acts that the Council could enact to carry out that purpose, the CAA "gave the Council authority broader than that necessary to ensure merely that mechanical procedures exist for initiatives to proceed," and established no "judicially manageable standards for determining whether the Council has properly exercised its discretion." As a result, the District asserts, whether the Human Rights Act safeguard is necessary to the purpose of the CAA is a "non-justiciable political question." The District emphasizes that the Council itself passed the CAA in the same Council session in which it devised the IPA, suggesting that the Council well understood the CAA's purpose as it carried out its mandate to enact necessary implementing law. Thus, the District urges, even if this case is justiciable, under well-established principles of statutory interpretation, this court should presume that the Council acted in conformity with that purpose when it enacted the Human Rights Act safeguard of the IPA. Therefore, the District maintains, any review of the Council's action "should be highly deferential." The District also stresses that section 752 of the Home Rule Act gave the Council broad "authority to enact any act or resolution with respect to matters involving or relating to elections in the District." D.C. Code § 1-207.52.

IV. Analysis

A. The Human Rights Act Safeguard Is Consistent with the Intent of the CAA

We begin our analysis with the observation that, although District citizens' right of initiative is "very broad," Hessey, 601 A.2d at 12, it can be no broader than the Council intended when it initiated legislation to share its direct legislative authority with the electorate. This is an important point, which reflects the fact that the people's right of initiative in the District is quite different from the right of initiative in other jurisdictions.*fn14 In other jurisdictions, it is the people who, through state constitutions, have conferred rights on the legislature, but have reserved general legislative power to themselves as well.*fn15 By contrast, in the District, through section 303 of the Home Rule Act, Congress gave a broad grant of legislative power to the Council alone (subject to specified restrictions set out in Title VI, including Congress's power to disapprove Council legislation). In passing the CAA, the Council had to decide the extent of the legislative power it would share with the people.*fn16 Thus, to resolve the issue that is before us, the Council's intent when it passed the CAA is paramount.*fn17 Cf. Stevenson v. District of Columbia Bd. of Elections & Ethics, 683 A.2d 1371, 1376 (D.C. 1996) (reasoning that ambiguous language in the CAA must be read in a way that expresses the Council's intent and rejecting the "premise that the bill as enacted meant something different from the bill the Council intended").

1. The Human Rights Act Safeguard Is Not Inconsistent with the Relevant Language of the CAA, Which is Ambiguous

a. The Definition of "Initiative"

The words used in a statute "are the primary, and ordinarily the most reliable, source of interpreting the meaning" of the statute. Pub. Citizen v. U.S. Dep't of Justice, 491 U.S. 440, 454-- 55 (1989); Brizill, 911 A.2d at 1216 n.8 ("The primary and general rule of statutory construction is that the intent of the lawmaker is to be found in the language that he has used"). Thus, in our effort to determine the Council's intent, we turn first to the language of the CAA. As already described, the definitional section of the CAA defines the term "initiative" 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 registered qualified electors of the District of Columbia for their approval or disapproval." Id. § 1-204.101 (a). This is the language on which appellants focus primarily, arguing that the "except laws appropriating funds" phrase is "the exclusive substantive limitation" on the right to initiate legislation.

Although on its face this language may appear to denote that there is but one limit on use of the initiative process, the context shows that this is not the case. The Charter amendment that established the right to initiative must be read in conjunction with the Home Rule Act, which, although conferring on the Council broad legislative authority, makes clear that the legislative authority is subject to limits implied by the United States Constitution and to the enumerated limits on that legislative authority that Congress set out in Title VI of the Home Rule Act. See D.C. Code §§ 1-203.02, 1-206.02; Convention Ctr. III, 441 A.2d at 918 (explaining that voters' power to legislate by initiative can be no broader than the Council's legislative power). Since section 1-204.101 (a) obviously could not and did not remove those limits, it cannot be read as expressing the entire scope of restrictions on the initiative right. Rather, section 1-204.101-which Congress recognized as merely "defin[ing] the operative terms" of the CAA*fn18 -does not purport to address, and is ambiguous as to, whether there are other limitations on the right to initiative (and referendum).*fn19 The Human Rights Act safeguard is not inconsistent with that ambiguous language.*fn20

b. The Council's Authority to "adopt acts as are necessary to carry out the purpose" of the CAA

The other relevant language of the CAA is section 1-204.107, the CAA provision that directed the Council to "adopt such acts as are necessary to carry out the purpose of this subpart within 180 days."*fn21 This language is in marked contrast to the counterpart language used in the bill that Councilmember Hobson introduced on January 3, 1977 (Bill 2-2, which, as amended, became the CAA). Bill 2-2 directed that "[t]he Council of the District of Columbia shall provide the manner in which petitions shall be circulated, presented and certified and measures submitted to the electors." See D.C. Council, Comm. on Gov't Operations, Report No. 1 on Bill 2-2 at Attachment A 4 (March 16, 1977) (hereinafter, "CAA Report"). The CAA "necessary to carry out the purpose" language also is in stark contrast to the language used in the bills that were introduced in Congress (bills that culminated in passage of the Home Rule Act) that would have created a right to initiative and mandated the Board (not the elected Council) to "prescribe such regulations as may be necessary or appropriate (1) with respect to the form, filing, examination, amendment, and certification of initiative petitions, and (2) with respect to the conduct of any election during which any such petition is considered." Hearing on S. 1603 and S. 1626, 92d Cong.163. Similarly, the CAA language contrasts with the language used in section 303 (c) of the Home Rule Act, which also afforded the Council a model it might have used to declare its authority to enact merely procedural rules governing the initiative and referendum process. See D.C. Code § 1-203.03 (c) (2006) ("The Board of Elections and Ethics shall prescribe such rules as are necessary with respect to the distribution and signing of petitions and the holding of elections for ratifying amendments to subchapter IV of this chapter according to the procedures specified in subsection (a) of this section"). By comparison to all of those formulations, the "necessary to carry out the purpose" language that the Council used in section 1-204.107 appears to be purposefully undefined.*fn22 Notably, in other contexts, virtually identical language has been used to authorize the adoption not only of procedural rules, but also of substantive requirements. See, e.g., District of Columbia Ins. Placement Facility v. Washington, 269 A.2d 45, 48--49 (D.C. 1970) (noting that statute that directed the Superintendent of Insurance to promulgate such regulations as "he shall deem necessary to carry out the purposes" of the statute authorized the Superintendent to direct that insurance placement facilities issue crime insurance).*fn23

The fact that section 1-204.107 placed no express limit mandating that the CAA-implementing legislation must be procedural only may be taken as "a convincing indication that none [i.e., no such limit] was intended." Myers, 272 U.S. at 128.*fn24 At the very least, section 1-204.107 is ambiguous as to whether it authorized the Council to adopt additional restrictions or limitations on use of the initiative process. That being the case, the additional "restriction" that the Council imposed through the Human Rights Act safeguard is not manifestly contrary to the "acts as are necessary to carry out the purpose" language of section 1-204.107.

Focusing more particularly on the word "purpose" in the "necessary to carry out the purpose" clause of section 1-204.107, appellants argue that the sole purpose of the CAA was to establish the right of initiative and referendum and that, by authorizing the Council to enact legislation to carry out that purpose, the CAA must be understood to have authorized the Council to do no more than to adopt rules to facilitate citizens' use of the new power. However, they cite no support for their view that the CAA referred only to this mechanical purpose rather than to the concerns and objectives that motivated the Council to pass the act that became the CAA.*fn25 We deem it significant that the CAA Report refers to the initiative, referendum, and recall processes as "legacies of the Progressive Era in American politics" that are designed "to provide direct and continual accountability of public officials to the electorate." CAA Report, at 2; see also H.R. Rep. No. 95-890, at 8 (containing the same explanation).*fn26 If this is the broad purpose of the CAA, the Council could reasonably have thought, for example, that it was necessary to that purpose-i.e., the purpose of helping to ensure that the Council was accountable to the entire electorate-for the Council to disallow use of the initiative or referendum process to enact legislation that would have the effect of discriminating against sectors of the electorate who might need protection from the "major forms of discrimination currently encountered by citizens."*fn27 Human Rights Law Report, at 1 (describing the target of the Human Rights Law).

That said, we agree with the District that our role is not to second-guess the Council's judgment and to decide whether there is a sufficiently strong connection between the purpose of the CAA and the Human Rights Act safeguard. The "degree of [the safeguard's] necessity, the extent to which [it] conduce[s] to the end, the closeness of the relationship between the means adopted and the end to be attained, [were] matters for [the legislature's] determination alone." Comstock, 130 S.Ct. at 1957. To be "necessary to carry out the purpose" of the CAA, it was not required that the Human Rights Act safeguard be absolutely necessary to enable the initiative and referenda processes to be launched.*fn28 To conclude that the Human Rights Act safeguard is not inconsistent with the CAA, it is enough that we can conclude (as we do) that, on its face, the Human Rights Act safeguard is not manifestly contrary to the "purpose" of the CAA.

In short, analysis of the text of the CAA does not enable us to agree with appellants that the Council contravened the express language of the CAA in enacting the Human Rights Act safeguard. And, quite the contrary, other factors persuade us that the Council acted in a manner consistent with its intent when it passed the CAA.

2. The Council's Interpretation of the CAA, Which is Reflected in the IPA Human Rights Act Safeguard, Is ...


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