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Emergency Motion of Appellants for Summary Reversal and Request for Expedition and Oral Argument
June 23, 2000

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Appellants--the District of Columbia Board of Elections and Ethics (the Board), the District of Columbia, and the Council of the District of Columbia-move this Court to summarily reverse the temporary restraining order (TRO) entered by the Superior Court (Haywood, J.) yesterday, June 22, 2000, at about 3:30 pm, which immediately enjoined the Board from tallying and reporting the results of the votes at the special election scheduled for Tuesday, June 27, 2000 on the referendum on the School Governance Charter Amendment Act of 2000, Act 13295, 47 D.C.Reg. 2212 (Appendix A). Since the special election will be held in only four days (two business days) from today, appellants also request that the Court expedite its consideration of this motion and render a decision as soon as possible. The trial court's order is plainly erroneous since none of the prerequisites for emergency injunctive relief were met. Immediate relief from this Court is requested because the order, if allowed to stand, would discourage voters from coming to the polls on Tuesday since the referendum is the only item on the ballot and the trial court's order declares that Act 13-295 is probably invalid. Moreover, even a temporary delay in releasing the results of the ballot would burden core political speech. The resultant chilling of first amendment rights would cause grave and irreparable harm to the citizens of the District.

Because every day that the trial court's order is allowed to stand will discourage voter turnout on Tuesday, we request that this Court hold oral argument on this motion this afternoon, Friday, June 23, 2000, and rule as soon as possible thereafter.1

It is clear that the order causes irreparable harm to appellants and the citizens of the District because the order chills the exercise of the right to vote. In contrast, there is no irreparable harm to plaintiff from the tallying and reporting of the vote. Plaintiff has not even articulated how he would suffer irreparable harm if the ballots were tallied and reported and the legality of the measure were determined later. Plaintiff's core legal contention that Act 13-295 was not passed in two readings "in substantially the same form" fails to recognize the governing criteria for assessing the same measure fails to recognize the governing criterion in this context. The criterion is only that the electorate be put on notice of the specific subject to be addressed by the legislation and not to straight jacket the process so that amendments that alter the means of addressing that same subject cannot be offered. Here from the outset there was notice that the specific subject to be addressed was the number and manner of selection of the members of the Board of Education. While a number of amendment were proposed as to how this was to be addressed, no one was misled as to the nature of the legislation.


Under the Home Rule Act, the District's Charter may be amended if (1) the Council enacts an act to this effect, (2) the act is ratified by a majority of the voters at a special election, and (3) Congress does not enact a joint resolution disapproving the act within 35 legislative days. D.C. Code § 1-205. Acts of the Council, other than budget and emergency acts, must "be read twice in substantially the same form with at least 13 days intervening between each reading." D.C. Code §1-229, and be presented to the Mayor for approval. D.C. Code §1-227(e).

In the present case, the Council read Bill 13-469, the "School Governance Charter Amendment Act of 2000," at three legislative sessions. As introduced, Bill 13-469 provided for seven elected school board members, three at large and four from special school districts. (Appendix B). The first reading was held January 18, 2000. After the second reading, held February 1, 2000, the bill was changed to provide the voters with two options: either (1) a nine-member elected board, with eight from the wards and the president at large, or (2) a five-member Board appointed by the Mayor. (Appendix C). The third reading, held February 17, 2000, resulted in the final, hybrid proposal, in which five members were elected (four from special school districts, and the president at large) and four appointed by the Mayor. Act 13295, § 2(a) (Appendix A) The final proposal also contained a sunset provision to take effect in four years, after which the Council would assume the power to determine the composition and manner of selection of the Board. Id. § 2(b). The act was signed by the Mayor on March 1, 2000.

Meanwhile, Congress, in order to expedite the process, took the extraordinary step of passing legislation (introduced by Representative Norton and cosponsored by Representative Davis) waiving the congressional review period for Act 13-295 and providing that it "shall take effect upon the date such Act is ratified by a majority of the registered qualified electors of the District of Columbia voting in a referendum held to ratify such Act." H.R. 4387, 106th Cong., 2nd Sess. (2000), 146 CONG.REC. H. 4193 (June 12, 2000) (Appendix D), presented to the President on June 19, 2000, 146 CONG.REc. H. 4672 (June 19, 2000). The legislative history shows that the purpose of H.R. 4387 was to ensure that the Charter Amendment, if ratified by the voters, would take effect in time for the November 7, 2000 election of the Board of Education.2 146 CONG.REC. H. 4193 (remarks of Reps. Davis and Norton) (Appendix E).

The Board of Elections and Ethics also adopted emergency regulations to permit the holding of a special election solely on the question of a Charter Amendment. The Board held a special meeting for this purpose on May 2, 2000. Transcript of Board Meeting (Appendix F). The plaintiff, who challenged the process both on the ground that the two-reading requirement was not met and that the summary statement was not accurate3--attended the meeting and was heard at length. Id. 34-43; 47-56. The Board set the election date for June 27, 2000. Id. at 78-79.

Yesterday, on June 22, 2000--51 days after the Board's meeting--plaintiff filed a motion for a TRO. (Appendix G). At about 3:15 pm, the trial court granted the TRO. (Appendix H). Although the trial court did not enjoin the holding of the election, it enjoined the tallying and reporting of the election results.

Appellants filed an emergency appeal with this Court yesterday at 4:00 pm, 45 minutes after the decision, and file this motion this morning about 8:30 am this morning.



As we shall show in Part II, infra, plaintiff has met none of the perquisites for the extraordinary relief that was granted. However, since our immediate concern is to . obtain summary reversal on an expedited basis, we first address our grounds for this relief.
The right to vote is one of the most fundamental individual liberties protected by the first amendment. Williams v. Rhodes, 393 U.S. 23, 31 (1968). The first amendment also protects core political speech, which includes the voters' right "to send a particularized message" reflected in the results of their vote. See Turner v. D. C. Board of Elections and Ethics, 77 F.Supp.2d. 25, 31 (D.C.C. 1999). Moreover, "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 374 (1975). Although the trial court's order does not entirely deny the right of the citizens of the District to vote in the special election scheduled for Tuesday, it places two heavy burdens on this right.

First, the order has a grave and immediate impact in that it discourages voters from going to the polls. The referendum on Act 13-295 is the only matter on the election next Tuesday. The trial court's order, however, declares that the act is likely to be declared invalid. This clearly would have an adverse impact on voter turnout, and thereby undermine the electoral process unless the order is quickly reversed.

Indeed, an article this morning in the Washington Post contains statements from advocates of both sides of the issue bemoaning the trial court's order because of its adverse impact on the vote. "D.C. Can't Tally, Vote Judge Rules," Washington Post, June 23, 2000, Metro Section, Page B l, B8 (Appendix 1)

Mayor Anthony Williams (D) said last night through a spokeswoman that the judge's decision "could do irreparable harm to the citizens and the children of the District of Columbia."

"This is the worst of all possible worlds," said Larry A. Gray, legislative chairman for the D.C. Congress of PTA's, which opposes the measure. "Voters need to rise up and turn out heavily and not be discouraged by the misuse of our election process."

"Once again, citizens in the District of Columbia have been disenfranchised," Council Chairman Linda W. Cropp (D) said. "The citizens will be harmed . . . by feeling that their votes won't count."

Second, the trial court's injunction against the tallying and reporting of the election results, even on a temporary basis, is in itself a serious burden on first amendment rights. The same issue was addressed in Turner, which dealt with the question of whether Congress's restriction on the use of the District's funds for holding an election on an initiative to legalize the use of marijuana for medical purposes could, consistent with the Constitution, be construed to prevent the tallying, reporting, and certification of these results. The Court held that "denying D.C. citizens access to the outcome of the election held on November 3, 1998 burdens core political speech." Id. 77 F.2d at 32. Thus, the Court held that the restriction did not apply to these post-election actions because to do so would render the restrictions unconstitutional under the first amendment. Id. at 34.

The trial court's order in the present case suffers from precisely the same infirmity as the congressional restriction in Turner. Denying the voters access to the results of the election for some undefined period while the judicial process is completed constitutes a burden on core political speech--the right "to send a particularized message." Id. at 31. The fact that it may not be a permanent deprivation of access to these results does not lessen the character of the burden as irreparable harm. See Elrod v. Burns, supra, 427 U.S. at 374.

The combination of these burdens on the first amendment rights of the citizens of the District constitutes grave and irreparable harm, which will increase each day the trial court's order is allowed to stand.

The fact that the voters are in a situation requiring immediate relief is the result plaintiff's decision to wait until a few days before the scheduled special election even though the record is clear that he was at the special meeting of the Board on May 2 when the Board set the election for June 27. See Transcript of Board of Elections hearing at 78-79. (Appendix F) Either plaintiff has slept on his rights or has made a tactical decision to cause the maximum disruption to the electoral process. In either case, he should not benefit.


A TRO is extraordinary relief, and should be granted only:

. . . where 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.

Weick v. Sterenbuch, 350 A.2d 384, 287-288 (D.C. 1976). Accord, Barry v. Washington Post Company, 529 A.2d 319, 321 (D.C. 1987); In. re Antioch University, 418 A.2d 105, 109 (D.C. 1980); Virginia Petroleum Jobbers Association v. Federal Power Commission, 259 F.2d 921, 925 (D.C. Cir. 1958). Plaintiff has met none of the prerequisites for extraordinary relief.

1.. Plaintiff does not have a substantial likelihood of prevailing on the merits.

Plaintiffs sole argument on the merits is that Act 13-295 violated the requirement that it "be read twice in substantially the same form." D.C. Code §1-229. The purpose of the two-reading requirement is "to give notice of a pending proposal so that `the public and interested parties can discuss this legislation' before passage." District of Columbia v. Washington Home Ownership Council, Inc., 415 A.2d 1349, 1352 (1980) (en banc), quoting STAFF OF THE HOUSE COMM. ON THE DISTRICT OF COLUMBIA, 93d Cong., 2d Sess, HOME RULE FOR THE DISTRICT OF COLUMBIA 1973-1974 at 1042 (Comm. Print 1974) ("HOME RULE HISTORY"). The quoted passage is from Congressman Rees, who introduced the two-reading requirement. He explained the need for it as follows:

What this merely does is set up a technique which is merely followed in most legislative bodies in the Country. This would be so the City Council or members of the City Council can't bring up a bill all in one session and pass it. It says that except in an emergency, each act shall be adopted twice in substantially the same form . . .

It is merely a parliamentary procedure that is followed in most legislative bodies in the country. Most bodies have three readings of the bill. This requires two readings and the first reading, it would be one week between the first reading and the second reading and during this period, of course the public and interested parties can discuss this legislation.


Thus, the primary purpose of the two-reading requirement is to give the public notice. There is nothing in the text or legislative history of the Home Rule Act to indicate that it precludes substantive amendments, even major ones, without sending the act to a third reading, or more. Decisions of a number of appellate courts of other states interpreting similar requirements have held that amendments between readings are permitted as long as they do not change the basic character of the bill. See, e.g., Boitnott v. Mayor and City of Baltimore, 738 A.2d 881, 889 (Md. 1999); Ajamian v. Montgomery County, Maryland, 639 A.2d 157, 166 (Md.App. 1994); Jeferson v. City of Anchorage, 513 P.2d 1099, 1101-1102 (Alaska 1973); Biltmore Hotel Court v. City of Berry Hill, 390 S.W.2d 223 (Tenn. 1965); Wollen v. Fort Lee, 142 A.2d 883 (ICJ. 1958); Klaw v. Pan-Mar Construction Co.,, 135 A.2d 123 (Del. 1957); Community Home Buildings v. Town Council of North Kingstown, 117 A.2d 544 (R.I. 1955); Farnesly v. Henderson, 240 S.W.2d 83, 84 (Ky. App. 1951).

In the present case, each of the versions of the bill dealt with the same question--the number and method of selection of the Board of Education. The first version provided a seven-member elected Board. The second version gave the voters the option of either a nine-member elected Board or a five-member appointed Board. The change was considered significant enough to require a third reading. The final version was a hybrid of the first two versions: a nine-member Board of which five members were elected and four appointed. This version also included a sunset provision to take effect in four years, after which the Council would assume the power to determine the composition and manner of selection of the Board.

Although the final version was different from either of the first two versions, it was "in substantially the same form" within the meaning of D.C. Code § 1-229. This is because the essential purpose of the requirement was met--i. e. , "to give notice of a pending proposal so that `the public and interested parties can discuss this legislation' before passage." Moreover, the basic character of the bill did not change. To adopt plaintiff's interpretation of this provision would place a procedural straight jacket on the Council that would be not serve any of the stated purposes of this provision.

2. Plaintiff will not suffer any irreparable harm.

It is difficult to see how plaintiff would be irreparably harmed by permitting the votes to be tallied and reported. If the Act were declared violative of the Home Rule Act, it could be invalidated at that point. Indeed, should the voters decline to ratify the act, plaintiff would suffer no irreparable harm at all.

Moreover, plaintiff's chief complaint about the final version seems to be its sunset provision four years hence, at which the Council would assume the power to establish the manner of selection and terms of the members of the Board. See TRO Motion at 3, 1 11 (Appendix G). However, since this provision will not take effect for four years, there is clearly no irreparable harm. Plaintiff would have ample time to litigate the validity of this provision.

3. Appellants would suffer severe irreparable harm.

In sharp contrast, appellants would suffer irreparable harm. As shown in Part I, supra, the citizens of the District would suffer grave and immediate harm by the loss of their first amendment rights resulting from the burdens placed on core political speech. In addition, the Board would certainly incur additional costs in securing and storing ballots until the issue is resolved judicially. Therefore, the balance of the equities--especially in view of the irreparable damages to first amendment rights--weights heavily in favor of the appellants.

4. The trial court's order is contrary to the public interest

For similar reasons, the public interest weighs heavily in support of the free and full exercise of first amendment rights by the citizens of the District. The trial court's order frustrates those rights. We ask this Court to preserve those rights.


The decision of the trial court should be summarily reversed.

Respectfully submitted,
Corporation Counsel

Deputy Corporation Counsel
Appellate Division

Assistant Corporation Counsel
Attorneys for the District of Columbia
Office of the Corporation Counsel
Appellate Division
441 Fourth St., N.W., 6th floor
Washington, DC 20001


I hereby certify that a copy of the foregoing was severed by hand-delivery this 23rd day of June at approximately 9:15 am to counsel for plaintiff:

Kenneth H. Rosenau, Esq.
1424 16th Street, NW, S. 502
Washington, DC 20036

Assistant Corporation Counsel, D.C.

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1. The undersigned counsel notified appellee's counsel, Kenneth H. Rosenau, Esq., yesterday afternoon that appellants would request consideration on this expedited schedule. Moreover, counsel spoke to Mr. Rosenau this morning at 7:45 am and made arrangements to hand-deliver this motion and appendices to him as soon as he arrives in his office (about 9:15 am to 9:30 am). To the extent that D.C.APP.R. 27 applies to this motion, the undersigned counsel reports that appellant's counsel opposes such expedition.

2. See D.C. Code § 1--1314(a)(5).

3. 'The Board resolved this complaint by amending the summary statement. This is not an issue in this case.

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