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| IN THE SUPERIOR COURT
OF THE DISTRICT OF COLUMBIA Civil Division DINO JOSEPH DRUDI, Plaintiff, v. MOTION FOR PRELIMINARY INJUNCTION COMES NOW the Plaintiff, Dino Joseph Drudi, by and through his attorneys, Kenneth H. Rosenau, Rosenau & Rosenau, and moves this Honorable Court for a preliminary injunction prohibiting the District of Columbia Board of Elections and Ethics ("Board") from holding a ratifying referendum regarding the School Governance Charter Amendment Act of 2000, Act #13-295, or in the alternative, from tallying the ballots and reporting the results of any such referendum, until a trial on the merits of this case. In support of his motion Plaintiff states as follows: 1. This case arises from the passage, by the Council of the District of Columbia ("Council"), of Bill 13-469, now known as the School Governance Charter Amendment Act, Act #13-295 ("Act").1 The Council passed the Act without having read the Act "twice in substantially the same form," in violation of D.C. Code § 1-229. 2. The District of Columbia Board of Elections and Ethics ("Board") has scheduled, on an emergency basis, a referendum for June 27, 2000. Under § 1-229, a referendum is necessary to ratify the Act. Applicable Law 3. A preliminary injunction should be granted when "the moving party has clearly demonstrated (1) that there is a substantial likelihood he will prevail on the merits; (2) that he is in danger of suffering irreparable harm during the pendency of the action; (3) that more harm will result to him from the denial of the injunction than will result to the defendant from its grant; and in appropriate cases, (4) that the public interest will not be disserved by the issuance of the requested order." Wieck v. Sternbuch, 350 A.2d 384, 387 (D.C. 1976). Substantial Likelihood of Prevailing on the Merits 4. Paragraphs 1-3 are incorporated herein as if repeated verbatim. 5. The relevant provision § 1-229 has yet to be interpreted in any published opinion. Whatever the limits of "substantially in the same form," though, the phrase certainly cannot be held to encompass this case. 6. Three proposed acts bearing the same title and number were read before the Act was passed. The first two acts could arguably be called "versions" of the same act, and could arguably be said to have been in substantially the same form as each other. However, the Act passed, after one reading in that form, differed from the two acts read earlier in at least two substantial ways. 7. The first act read would reduce the number of members of the Board of Education from eleven to seven. All seven members would be elected, four of them elected by school district and three elected at large. 8. The second act would provide the voters in the referendum to choose between two possible compositions for the Board of Education. One option would be an nine-member, entirely elected Board in which eight members would be elected by ward and the ninth, the president, would be elected at large. The other option would be a five member, entirely appointed board. 9. The Act as passed provides for a nine-member Board. Four members will be appointed by the Mayor. Five members will be elected, four elected by school district and one (the president) elected at large. 10. If the Act as passed contained only these revisions, the Act could arguably be said to have been read in substantially the same form as one or both of the earlier readings - all of these clauses relate only to the composition of the Board of Education and the method of selection of its members. However, there were at least two substantial additional clauses in the Act as passed. 11. The most substantial difference in the Act as passed is §2(b). That section of the Act provides that the provisions of the Act establishing the composition of the Board will expire after four years, and that after four years the composition of the Board and the selection of its members will be determined by the City Council, without ratification by referendum. In effect, then, the Act will take control of the composition and selection of the Board from the public and give it to the Council. 12. The second substantial difference in the Act as passed is §2(c), which empowers the Council to create a "state education agency" with various powers over public, chartered, and private schools within the District of Columbia. 13. If the Act as passed differed from the previously read acts in no way other that in its provisions regarding the composition of the Board and selection of its members, the Court might still find that the Act had not been read twice in substantially the same form. Each act read differed in the degree to which the Board would be elected, and in the manner in which the members would be elected. Such a limitation or expansion of the power to elect representatives could well be said to be a substantial change. 14. However, the Act as passed differs in far more substantial ways from the earlier read acts. The earlier acts were changes in the composition of the Board and the method of selection of its members. The Act as passed did this, but also took direct control of an important public body from the hands of the voting public. 15. Given the substantial differences between the Act as passed and the earlier acts, there is a substantial likelihood that the Plaintiff will be able to prove that the Act was not read twice in substantially the same form, and therefore will prevail on the merits of his case. Public Interest 16. Paragraphs 1-14 are incorporated herein as if repeated verbatim. 17. The public interest overwhelming favors this Court granting the preliminary injunction. If the special referendum is held, and the results then voided by the Court in a later hearing regarding the legality of the Act, a second referendum will likely be held soon. 18. The cost of holding the special referendum is approximately $300,000 of taxpayer funds. The cost of holding another referendum will likewise be charged to the taxpayers. Considering the history of wasted taxpayer money in the District, this Court should grant the a preliminary injunction so that the Court can determine the legality of the Act before the city has spent, and likely wasted, this money. 19. The holding of two referenda on similar issues will confuse and alienate the voters and thereby undermine the political process. The public interest is far better served if the Court grants a preliminary injunction so that the legality of the Act, and therefore the validity of the referendum, is determined before the voters are drawn to the polls. Irreparable Harm 20. Paragraphs 1-18 are incorporated herein as if repeated verbatim. 21. In addition to the harm to the public, of which the Plaintiff is a member, the Plaintiff obviously cannot prevent the referendum, or the tallying and publishing of the results, after those events have occurred, and so will thus suffer the irreparable harm of the loss of his claim. 22. The special referendum is being held to ratify an act of the Council that changes the District's Charter. The Plaintiffs goal is to prevent the passage of an act when the Council has failed to follow the proper procedures for submitting the act for popular ratification. If the special election is held and the votes counted, the Act has been ratified and the Plaintiffs remedy is gone forever. Balancing of the Harms. 23. Paragraphs 1-21 are incorporated herein as if repeated verbatim. 24. "[B]efore awarding injunctive relief the trial court must determine that more harm will result to the movant from the denial of the injunction than will result to the nonmoving parties from its grant." District of Columbia v. Group Insurance Administration, 633 A. 2d 2, 23 (D. C. 1993). 25. As addressed above, the Plaintiff will harmed by a denial of a preliminary injunction such that his entire interest in this case will expire. The Defendants, in contrast, will suffer little or no harm from the granting of the order. 26. In this case, the interests of the Plaintiff, the Defendants, and the public largely coincide. The Defendants do not want the taxpayer's money wasted, or the voters' faith in the process undermined, any more than does the Plaintiff. It is in the Defendants' interest to have the legality of the Act resolved before it is ratified. 27. To the degree that the Defendants can claim any injury to their interests, they have only themselves to blame. The Plaintiff raised these objections regarding the Council's illegal behavior directly to the Council immediately after they passed the Act, by letter of February 28, 2000. He then timely requested and received a hearing before the Board on the issue, but the Board's decision was not issued until May 11, 2000. Because the Defendants chose to conduct a special election for the ratification referendum, by use of an emergency regulation, the Plaintiff has had little over one month to find counsel, at his own expense, and research the legitimacy of his claim before bringing it to the Court. The Plaintiff submits that, as this motion is decided on equitable principles, these additional facts are fairly considered by the Court. WHEREFORE, the Plaintiff respectfully requests that this Honorable Court issue a preliminary injunction against the District of Columbia Board of Elections and Ethics, prohibiting them from holding a ratification referendum regarding the School Governance Charter Amendment Act of 2000, or in the alternative, from tallying and reporting the results of such a referendum, until a trial is held on the merits of the Plaintiff s claim. Respectfully submitted, IN THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA DINO JOSEPH DRUDI, Plaintiff, v. MEMORANDUM OF POINTS AND AUTHORITIES 1. D.C. Code §§1-229, 2. School Governance Charter Amendment Act of 2000, Bill #13-469, Act #13-295. 3. Exhibits A through H to the Motion for Temporary Restraining Order. The Plaintiff will be available at the hearing to authenticate documents. Respectfully submitted, 1. Relevant documents are attached as exhibits to the Plaintiff's Motion for Temporary Restraining Order, filed herewith. |
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