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| IN THE DISTRICT OF COLUMBIA COURT OF APPEALS Docket No. 00-CV778 DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, et. al., Appellants, No. 00-CV-778 v. DINO JOSEPH DRUDI, Appellee APPELLEE’S PETITION FOR REHEARING EN BANCCOMES NOW, Appellee/Petitioner Dino Joseph Drudi, by and through undersigned counsel, and pursuant to D.C.App. R. 40 and respectfully requests a rehearing before this Honorable Court en banc. On June 24, 2000 a three-judge panel of this Court issued a Judgment vacating the temporary restraining order (TRO) issued by Judge Haywood which prohibited the D.C. Board of Election from counting, publicizing or certifying the results of the Special Election regarding the School Governance Act of 2000 to be held June 27, 2000. The panel found that the Court had jurisdiction to vacate the trial court’s TRO “where for all practical purposes the rights of the appellants will be irretrievably lost absent review.” See Judgment, dated June 24, 2000, exhibit 1. The panel vacated the TRO because the Appellee failed to show there is a substantial likelihood of prevailing on the merits and because the balance of the harms favored the Appellants. The Appellee/Petitioner requests that the full panel of this Court reexamine the issues in this case. FACTUAL BACKGROUNDThe facts in this case are not in dispute. For the purposes of this Petition for Rehearing, the Appellee/Petitioner is willing to adopt the Facts as stated by appellants in their Emergency Motion for Summary Reversal and Request for Expedition and Oral Argument. Emergency Motion at 3-4. I. THIS COURT LACKED JURISDICTION TO REVIEW THE TRIAL COURT’S ISSUANCE OF A TEMPORARY RESTRAINING ORDER.The panel found that it had jurisdiction to review the grant or denial of a TRO when “the rights of appellants will be irretrievably lost absent review.” The panel cited Uricolo v. Washington, 305 A.2d 252 (D.C. 1973) for this proposition. However the only rights of the Appellants that could be “irretrievably lost” were stated in section one of their Emergency Motion for Review, attached as exhibit 4. The Appellants proposed, and the panel accepted, that if the TRO was not vacated the voters would be discouraged from voting in the Special Election. See Appellants’ Motion at 5. The proposition is groundless. The only evidence cited by the Appellants are press quotes from people who have a substantial interest in the outcome of the election. Id. at 6. In addition, the Appellee indicated to the trial court, the panel, and the press that he will challenge the Council’s actions on the merits irrespective of whether the TRO is upheld. If, according to the Appellants, the voters will be discouraged from voting because the validity of their votes is in doubt, then the Appellee’s challenge to the referendum would also discourage citizens from voting. This Court has jurisdiction to hear appeals from an order of the Superior Court pursuant to D.C. Code §11-721. The Section does not provide the Appellants the right to appeal temporary restraining orders granted by the Superior Court, under D.C. Code §11-721. This Court would have jurisdiction to review a preliminary injunction, but not a temporary restraining order (TRO). The panel cited Urciolo v. Washington, 305 A.2d 252 (D.C. 1973), as the basis for jurisdiction. Initially, Urciolo does not stand for the proposition for which the panel cites it. Rather the West headnote and not any holding made by the Court was quoted almost verbatim in the panel’s decision. To the extent Urciolo implies that proposition, it was explicitly overturned ten years later in Network Technical Services, Inc v. D.C. Data Co., 464 A.2d 133, 136 (D.C. 1983). As this Court held in Network Technical Services, Inc v. D.C. Data Co., “[temporary restraining] orders are not appealable because they are of short duration, terminate with the ruling on the preliminary injunction, and are issued either ex parte or without a full scale adversary and evidentiary hearing.” Network Technical Services, 464 A.2d 133, 136 (D.C. 1983). In the instant case, the temporary restraining order was only in effect “pending further Order of the Court or 10 days, which occurs first.” See Trial Court Order granting the TRO, dated June 22, 2000 at 5:00 p.m., exhibit 3. A status hearing on Plaintiff’s Motion for a Preliminary Injunction in this matter is already scheduled for June 20, 2000, before Judge Bailey, prior to the expiration of the TRO. Furthermore, the Appellants’ failed to provide proper Notice of Appeal. The Appellant’s filed Notice of Appeal on June 22, 2000, at 4:00 p.m. See Emergency Motion at 4. The Judge did not sign the Order granting the temporary restraining order until 5:00 p.m. According to D.C. App. R. 4(a) a Notice of Appeal cannot be filed until “after entry of the judgment or order.” (Emphasis added). This Court cannot have jurisdiction over this matter if the Notice of Appeal is not properly filed. This Court has dismissed appeals when notice was not timely filed. See Smith v. Canada, 305 A.2d 521 (D.C. 1973). Dismissal was warranted is this case. II. THE PANEL IMPROPERLY VACATED THE TEMPORARY RESTRAINING ORDER.The Judgment issued by the panel made five separate points: 1) Appellee failed to show a substantial likelihood of prevailing on the merits; 2) the purpose of the two reading requirement is “to give notice of a pending proposal so that ‘the public and interested parties can discuss [the] legislation’ before passage.” Judgment (quoting District of Columbia v. Washington Home Ownership Council, Inc., 415 A.2d 1349, 1352 (1980)(en banc); 3) there are unique requirements for amending the District of Columbia Charter, specifically, an act passed by the council must be ratified by the citizens; 4) there was no allegation that the public did not have adequate notice of the subject of the referendum; and 5) the balancing of the harms favors the appellants, and requires “removing any possible cloud on the voters’ expression.” The panel was required to review the TRO on the following grounds: (1) that there is a substantial likelihood the Appellee 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 the Appellee from the denial of the injunction than will result to the appellant 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). As discussed below, the panel inadequately addressed the first and third prongs. The panel failed to address the second and fourth prongs. In holding that the Appellee did not have a substantial likelihood of prevailing on the merits, the panel failed to properly apply the statutes governing amendments to the D.C. Charter by ignoring the second reading requirement in D.C. Code §1-229. D.C. Code §1-205 is not ambiguous about the procedures required for amendments to the Charter. The Code states that the D.C. 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 §1-205(a) (emphasis added). The process for passing acts is equally clear and unambiguous, as governed by D.C. Code §1-229: “Each proposed act . . . shall be read twice in substantially the same form, with at least 13 days intervening between each reading.” (Emphasis added). In its Judgment the panel used the following language: “Given the unique requirements of the District of Columbia Charter amendment procedures, a proposed amendment by the Council must be ratified by District of Columbia citizens before it becomes law . . . There is no allegation that there was a failure to adequately publicize the proposal that is the subject of the referendum as required by law.” The panel misapprehended the law. D.C. Code §1-229 does not state that public notice is sufficient; §1-229 requires two readings. Neither §1-229 nor §1-205 excepts Charter amendment acts from the two reading requirement. Furthermore, the Council itself has reaffirmed §1-229 applies to Charter amendment acts. In January 2000, the Council proposed the “Referendum Amendment Emergency Resolution of 2000.” 47 D.C. Reg. 1473 (2000). Attached. In the resolution the Council voted on whether to reduce the number of days required before a Charter amendment could be put on the ballot. Id. Thus, the Council has already taken the position that the referendum does not count as a second reading. The Council explicitly proposed the resolution to: “Reduce the time period before a Charter amendment may be placed on the ballot [to] allow for 2 readings [of the amendment] by the Council[.]” Id. As the panel stated in its Judgment and this Court ruled in D.C. v. Washington Home Ownership Council, Inc., the purpose of the two reading requirement is, “to give notice of a pending proposal so ‘the public and interested parties can discuss [the] legislation.’” Washington Home Ownership Council, 415 A.2d 1349, 1352, (D.C. 1980). The panel apparently ignored the second-half of the rationale in the case. The purpose of the two-reading requirement is to provide notice and give the public and interested parties the opportunity to discuss the legislation. Implicit in the opportunity to discuss proposed legislation is the concept that the public can lobby the Council to change the language of the legislation that will appear on the ballot. Therefore, the public and interested parties cannot “discuss” the proposed legislation if the second reading is the referendum. Regarding the third prong of the TRO standard, the panel did not truly address the issue but merely stated that the balance of the harms favored the appellants. Furthermore, it appears that the panel may have conflated the issues of the likelihood of success and the balance of harms. After stating its holdings about the likelihood of success on the merits, the panel concluded with: “Accordingly . . . the balance of harms . . . favors [the appellants].” (Emphasis added). WHEREFORE, the above stated reasons this Honorable Court should reverse the decision of the panel, thereby reinstating the TRO. Respectfully submitted, CERTIFICATE OF SERVICEThe above petition was hand-delivered to the following parties on June 25, 2000: James McKay Charlotte Brookins-Hudson Kenneth H. Rosenau |
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