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Zukerberg v. District of Columbia Board of Elections and Ethics

United States District Court, District Circuit

November 15, 2013

PAUL ZUKERBERG, Plaintiff,
v.
DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS and COUNCIL OF THE DISTRICT OF COLUMBIA, Defendants.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge.

When District of Columbia voters went to the polls on November 2, 2010, they encountered a litany of typical state- and local-government fare: elections for Mayor, City Council, and Delegate to the U.S. House of Representatives, among other positions. In the rightmost column of the one-page ballot, though, voters found a three-paragraph summary of “Proposed Charter Amendment IV: The Elected Attorney General Amendment.” See District of Columbia Board of Elections, November 2, 2010 General Election Sample Ballot, http://www.dcboee.org/popup.asp?url=/pdffiles/nr597.pdf. This 2010 Charter Amendment proposed to establish the District’s Attorney General as an elected, rather than an appointed, office. The question printed on the ballot said that D.C. voters “would begin voting for Attorney General in 2014.” See id. The language of the underlying statute the voters were being asked to approve – not included on the ballot – was more ambiguous: the text stated that an election for Attorney General would be held “after January 1, 2014.” Presented with only the unequivocal language on the actual ballot, an overwhelming majority – 76 percent of those who cast a ballot – voted “Yes.” Some three years later, and just eight months before the first scheduled primary election for Attorney General, the City Council voted to postpone the election until at least 2018. See Opp., Exh. A (Elected Attorney General Implementation and Legal Services Establishment Amendment Act of 2013) at 10. The Mayor declined to veto that law, and on October 24, 2013, it went to Congress for that body’s mandatory 30-legislative-day review of ordinary D.C. legislation. This is where it remains today.

In response to this 2013 Act, Plaintiff Paul Zukerberg brought this suit alleging that, even prior to its formal passage, the Act infringes his rights as a voter and as a potential candidate for Attorney General under the First and Fifth Amendments and the newly amended D.C. Charter. Soon thereafter, he moved for a preliminary injunction, hoping to prevent the District from enforcing the 2013 Act while candidates begin to collect the signatures and raise the money necessary to run in the scheduled 2014 primary. While Zukerberg raises an interesting challenge, the Court has no power to rule on that question today, as none of his claims is ripe for review. His Motion for Preliminary Injunction, consequently, must be denied without prejudice.

I. Background

Most of the facts in this case are not in dispute. To begin with, in the District, ordinary legislation takes effect only after three prerequisites are met: First, the City Council must pass the legislation; second, the Mayor must sign it (or, as he did in this case, fail to veto it); and, third, it must survive Congress’s mandatory 30-legislative-day review. See D.C. Code § 1-206.02(c)(1). If Congress does not pass a joint resolution disapproving of the legislation within that time limit, the Council’s bill becomes law. See id. The Mayor declined to veto the 2013 Act, effectively approving it on October 24, 2013, but, due to the peculiarities of the 113th Congress’s schedule, the 30-day review period will not come to an end until sometime after December 20, see Opp., Exh. C (Legislative Information Management System printout), and perhaps as late as the first week of January 2014. See Opp. at 4.

In the meantime, Plaintiff has challenged the 2013 Act on the ground that it conflicts with the 2010 Amendment and thus violates his rights under the First and Fifth Amendments to the U.S. Constitution, as well as the D.C. Charter. See Am. Compl., ¶ 15. In his Motion for Preliminary Injunction, he argues that D.C. voters and potential candidates for Attorney General – himself included, see Am. Compl., ¶¶ 2, 10 – will suffer irreparable harm if the Court does not take immediate action.

Based on its interpretation of current law – that is, the 2010 Charter Amendment, not the pending 2013 Act – the D.C. Board of Elections has scheduled the Attorney General election for 2014. Although Plaintiff filed his Complaint and Motion for Preliminary Injunction based on his fear that the District would remove the Attorney General position from the 2014 ballot as early as October 22, 2013, see Mot. at 5, that has not come to pass. Instead, pursuant to its authority, the Board made official nominating petitions available on November 8, 2013 – 144 days prior to the April 1, 2014, primary for Attorney General that it had scheduled. See Mot. at 12. To gain access to the ballot, a candidate for Attorney General must collect 2, 000 signatures by January 2, 2014. See id. While Congress is considering the law, Plaintiff argues, the uncertainty surrounding the 2013 Act and the scheduled election has created and will continue to create a “chilling effect, ” discouraging potential candidates from filing to run and spending money to collect the necessary signatures and dissuading potential donors from contributing. See id. at 11; Reply at 7-8 (“With the 2013 Act hanging over the 2014 election like the sword of Damocles, there is a substantial disincentive for any candidate to declare, raise funds, and engage voters.”).

Defendants respond that the plain language of the 2010 Amendment allows the Council to act as it has, but that, in any case, the controversy is not ripe. Opp. at 3. Because Congress has not yet approved the 2013 Act, they argue, there is nothing for the Court to enjoin. Id. Plaintiff, furthermore, does not dispute that the Council and the Board of Elections have continued to act as though the election will go forward. Not only did the BOE distribute petitions on November 8, but its website also currently lists Attorney General as one of the positions that will be contested in the April 1, 2014, primary. See Reply at 7. On the other hand, the BOE has placed “asterisks” next to the position on its website and includes a note stating that the election may not proceed. See id. at 8.

The parties submitted preliminary-injunction briefs on an expedited timetable, and the Court held a hearing on the Motion on November 7, 2013.

II. Legal Standard

A preliminary injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. NRDC, Inc., 555 U.S. 7, 9 (2008). “A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Id. at 20.

Before the Court may consider these factors, it must first determine whether it has jurisdiction to hear the case because “Article III jurisdiction is always an antecedent question.” Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 101 (1998). A court may not, therefore, “resolve contested questions of law when its jurisdiction is in doubt.” Id. at 101. Alternatively, perhaps, as one court in this Circuit has observed, the Court could conclude that Article III jurisdiction is “[t]he first component of the likelihood of success on the merits prong” of the preliminary-injunction analysis. Barton v. District of Columbia, 131 F.Supp.2d 236, 243 n.6 (D.D.C. 2001) (citing Steel Co., 523 U.S. at 101).

It is the plaintiff who bears the burden of proving that the court has subject-matter jurisdiction to hear his claims. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); U.S. Ecology, Inc. v. U.S. Dep’t of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000). A court has an “affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority.” Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C. 2001). For this reason, although the Court must “treat the complaint’s factual allegations as true . . . and must grant plaintiff ‘the benefit of all inferences that can be derived from the facts alleged, ’” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)) (citation omitted), “‘the [p]laintiff’s factual allegations in the complaint . . . will bear closer scrutiny in resolving [jurisdictional issues]’ than [merits questions].” Grand Lodge, 185 F.Supp.2d at 13–14 (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1987)).

Additionally, a court “may consider materials outside the pleadings in deciding [questions] of jurisdiction. . . .” Jerome Stevens Pharms., Inc. v. F.D.A., 402 F.3d 1249, 1253 (D.C. Cir. 2005); cf. also Venetian Casino Resort, LLC. v. E.E.O.C., 409 F.3d 359, 366 (D.C. Cir. 2005) (“given the present posture of this case – a dismissal under Rule 12(b)(1) on ripeness grounds – the court may consider ...


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