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| SUPERIOR COURT OF THE DISTRICT OF COLUMBIA CIVIL DIVISION DINO JOSEPH DRUDI, Plaintiff v. DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, et al., Defendants Civil Action No.00-4716 Judge Bayly ORDER Before the Court are plaintiff's motion for summary judgment, the motion of the District of Columbia Board of Elections and Ethics and of the District of Columbia for summary judgment, and the motion of the Council of the District of Columbia for summary judgment and its opposition, in the alternative, to plaintiff's motion for summary judgment. Also before the Court are plaintiff's reply to the motion for summary judgment of defendants District of Columbia Board of Elections and Ethics and the District of Columbia, the supplemental exhibit to memorandum of points and authorities in support of the motion for summary judgment of defendants District of Columbia Board of Elections and Ethics and the District of Columbia, and plaintiff's supplemental reply to the motion of the Council of the District of Columbia for summary judgment. This case presents plaintiff's challenge to passage of the School Governance Charter Amendment Act of 2000 by the Council of the District of Columbia. The legislation, Bill 13-469, was passed by the Council on February 17, 2000, and was thereafter signed by the Mayor of the District of Columbia on March 1 as Act 13-295. Still later, on June 27, after the District of Columbia Court of Appeals had reversed an Order of the Superior Court and had declined to restrain a scheduled referendum, the Act was submitted for ratification .by the registered voters of the District of Columbia. On July 7 the District of Columbia Board of Elections and Ethics held a meeting at which it tabulated ballots, both absentee and challenged or special, and certified that the voters had ratified the Act. 1 D.C. Code § 205(a). Tabulation by the Board of Elections and Ethics affirmed that fifty-one percent of the votes cast, viz., 20,511, favored the Act while forty-nine percent of the votes cast, viz., 19,668, opposed it. Supplemental exhibit [8A] to memorandum of points and authorities in support of motion for summary judgment of defendants District of Columbia Board of Election and Ethics and the District of Columbia. Indicating that the facts are not in dispute, plaintiff contends that "[t]he only question this Court need address is whether the Act as passed was 'in substantially the same form' as one or both of the earlier two acts." Memorandum of points and authorities in support of plaintiff's motion for summary judgment at [1]. Plaintiff argues that defendants violated 1 D.C. Code §229(a) because "the Act as passed differed from the proposed acts previously read in significant ways." Memorandum of points and authorities in support of plaintiff's motion for summary judgment, supra, at [2] . Also asserting that no material fact is genuinely at issue, defendants District of Columbia Board of Elections and Ethics and the District of Columbia challenge plaintiff's standing to seek declaratory relief and, in any event, defend the lawfulness of the two reading procedure followed by the Council in considering and passing the Act. Joining defendants District of Columbia Board of Elections and Ethics and the District of Columbia, defendant Council of the District of Columbia rejects plaintiff's allegations of procedural irregularity in adopting the Act and urges that the Council provided the public with ample notice of the proposed change in governance of the Public Schools of the District of Columbia (PSDC) and so observed both the letter and the purpose of 1 D.C. Code § 299(a). The School Governance Charter Amendment Act of 2000, Bill 13469, was, under varying configurations, considered by the Council of the District of Columbia at three legislative sessions. The first session was held on January 18, 2000, the second on February 1, 2000, and the third on February 17, 2000. Earlier, on November 3, 1999, the Bill had been introduced by Council Members Allen, Ambrose, Catania, Chavis, Cropp, Evans, Graham, Mendelson, and Schwartz, and had been co-sponsored by Council Member Jarvis. At its first reading on January 18 Bill 13-469 provided for seven elected schoolboard members. Three of them were to be elected at large and four of them were to be elected from special school districts. At its second reading the Bill was amended to provide voters with two alternatives. One alternative was an elected board composed of nine members. Eight of the nine members were to be elected from the eight election wards, one member from each ward. The ninth member, the president of the Board, was to be elected at large. The other alternative was an appointed board of five members, each of whom was to be appointed by the Mayor. After its third reading the proposed legislation provided for a hybrid Board composed of four members appointed by the Mayor and confirmed by the Council along with five members elected by the voters. Four of the elected members were to be chosen by voters in the four school districts1 while the remaining elected member, who was to serve as president of the Board, was to be chosen by the voters at large. As finally proposed, the legislation also provided that four years after the Act first became effective, composition of the Board was to terminate and the Board was then to "be composed of and selected in such manner and for such terms as shall be provided by District law enacted pursuant to this title." Finally, both the proposed legislation and the manner of selection of the Board would create a "state education agency" charged with issuing rules to set requirements for credit for study, to set minimal hours of instruction, and to set basic standards to assess performance by public school students. Meanwhile, Congress, in legislation signed on June 27, 2000, by the President, waived for the proposed new law the review period required by 1 D.C. Code § 205(a) and (b).2 At the outset, defendants District of Columbia Board of Elections and Ethics and District of Columbia (District of Columbia) urge that plaintiff, who recites in his complaint, 9f only that he is a resident and registered voter of the District Columbia, has supplied no standing on which to base his action. Defendants District of Columbia rely on, e.g., Community Credit Union Services, Inc. v. Federal Express Services Corp., 534 A.2d 331 (D.C. 1981) and Dimond v. District of Columbia, 253 U.S. App. D.C. 111, 792 F.2d 179 (1986). While the Courts of the District of Columbia are not governed by standing requirements set forth under Article III of the United States Constitution, they nonetheless "look to federal jurisprudence to define the limits of '[c]ases and controversies' that [their] enabling statute empowers [them] to hear." Community Credit Union Services, Inc. v. Federal Express Services Corp., supra, 534 A.2d at 333, quoting 11 D.C. Code § 705 (b) (citations omitted). Federal case law, in turn, indicates that "to meet the minimum requirements of a 'case and controversy', a plaintiff must show that it has "'suffered some actual or threatened injury as. a result of the putatively illegal conduct of the defendant," . . . that the injury "fairly can be traced to the challenged action[,]" and [that it] "is likely to be redressed by a favorable decision. . . ."' Community Federal Union Services, Inc. v. Federal Express Services Corp., supra, 534 A.2d at 333, quoting Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982) (citations omitted). While plaintiff here complains of irregularity in the Council's legislative procedures, "the failure to follow proper procedures does not by itself amount to an `injury in fact"' and plaintiff may therefore "challenge such a failure where he or she has sustained some additional injury and that additional injury independently satisfies the requirements of standing doctrine." Dimond v. District of Columbia, supra, 253 U.S. App. D.C. at 123, 792 F.2d at 190-91 (citations omitted). Because the only additional injury plaintiff identifies is that a new educational entity may be erected by the Council, and that four years hence the composition of the School Board and the mode of selecting its members "will be determined by the City Council without ratification," memorandum of points and authorities in support of plaintiff's motion for summary judgment at [9], "and that as a result of the proposed Act voters like him are to be deprived of 'a referendum veto on any change in the composition and method of selection of the Board,"' id., plaintiff does not appear to present a palpable injury that he suffers or is about to suffer. What the Council may do under its authority "to create . . . any office, any agency, department or instrumentality of the Government of the District," D.C. Code § 227 (b), see, infra, at __-12, and what otherwise may occur in four years is, of course, unknown. Whether Board selection and composition revert to the status quo ante, or whether an entirely different configuration replaces the recently introduced scheme, is problematical. All that is certain is that the Council may create a new educational entity without a referendum and that plaintiff will not be deprived of a vote ,for the next four years. In fine, then, plaintiff's "'generalized 'grievance,"' Community Credit Union Services, Inc. v. Federal Express Services Corp., supra, 534 A.2d at 333, quoting Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., supra, 454 U.S. at 475, is too remote in time and in consequence to confer on plaintiff the sort of standing recognized in the case law. What plaintiff needs but lacks is a more certain, a more immediate, and a more palpable injury than the spectre of a new supervisory educational office or a school board seated, in whole or in part, through appointment by executive or legislative officials.3 Moreover, quite apart from whether plaintiff has presented a viable case or controversy, plaintiff has not submitted facts sufficient to sustain his contention that the legislature's procedures contravened the law. If, as appears undisputed, the purposes of the second-reading requirement is "to give notice of a pending proposal so that "the public and interested parties can discuss [the] legislation before passage," District of Columbia v. Washington Home Ownership Council, Inc., supra, 415 A.2d at 1352, citing "Staff of the House Committee on the District of Columbia, 98d Cong., 2d Sess., Home Rule for the District of Columbia 1973-1974 at 1042 (Comm. Print 1974). . . (Statement of Rep. Thomas M. Rees)" (footnote omitted), that purpose was here accomplished when Bill 13-469 was subsequently read "in substantially the same form, with at least 13 days intervening between each reading." 1 D.C. Code § 229. Comparison of the Bill as introduced on November 3, 1999, with the Bill as read on January 18, 2000, and again on February 1, 2000, and finally on February 17, 2000, reveals that although it passed through various formulations, the fundamental character and intent of the proposed legislation did not alter. Varying provisions for constituting a Board of Education and for providing governance for DCPS never so reconstituted the Bill or so recast its purpose as to amend or alter its basic character. Plaintiff is therefore deprived of his argument that what was read last diverged so radically from what had been previously proposed as no longer to be substantially the same proposal. Local legislative practice has, of course, long sanctioned amendment of legislation upon successive readings. See, e.g., memorandum of points and authorities in support of the Council of the District of Columbia's opposition to plaintiff's motion for summary judgment and cross-action for summary judgment at' 17 to 19. So too does established legislative practice permit legislators to propose amendments which are germane to the matter under consideration. What is not prohibited, then, is alteration or amendment of the language of pending legislation following discussion or debate. What is proscribed is only such radical change of the character or the content of a proposed bill that what is read for the second time is not "substantially the same" as what was read the first time. 1 D.C. Code § 29. Whether examined more narrowly by comparing only the successive versions of Bill 13-469, or more broadly by adverting to all the legislative initiatives proposed in 1999 and 2000 to alter the size, the responsibilities, and the composition of the Board4, (and to the public hearings held at that time to address governance of the public schools), the legislation here referred for referendum cannot be said to have altered its essence or to have concealed its purpose and to have misled plaintiff. Though plaintiff urges that the Council's actions were misleading, see memorandum of points and authorities in support of plaintiff's motion for summary judgment at [101], reports of the proceedings are manifestly to the contrary. Significantly, the second reading of the Bill on February 1 resulted in discussion and parliamentary procedures that lasted about four hours, from about 5:45 p.m. until about 9:45 p.m. Among issues debated and acted on was a four-year sunset provision like that ultimately included in the governance legislation.5 Inclusion of such a temporal limitation in the final proposal can scarcely be deemed supposititious or startling. Furthermore, the statutory provision which would authorize the Council to establish a supervisory education agency simply reflects the Council's clear power to create such an agency or instrumentality, 1 D.C. Code § 227(b), and has to some degree been superseded by Bill 13-416, the State Education Office Establishment Act of 2000, which was to have been read for a second time on July 11, 2000. See, Exhibit 16 to the memorandum of points and authorities in support of defendant Council of the District of Columbia's opposition to plaintiff's motion for summary judgment and cross-motion for summary judgment. As the Council emphasizes, Bill 13-416 is "not dependent on the existence of District of Columbia Act 13-295, but rather on the Council's exercise of its power under Section 404 (b) of the District Charter." Memorandum of points and authorities in support of defendant Council of the District of Columbia's opposition to plaintiff's motion for summary judgment and cross-motion for summary judgment at 23. Besides, the provision plaintiff challenges may be severed from the Act pursuant to 49 D.C. Code 601(x) without compromising the validity of the provisions of the Act. Comity, finally, as well as common sense, cautions the Court not to enter rashly into the legislature's province. Indisputably, of course, the Courts may, as plaintiff points out, "determine whether the Council ha[s] exceeded its authority, District of Columbia v. Washington Home Ownership Council, Inc., 415 A.2d 1134x, 1351-1552 (D.C. 1980)." Memorandum of points and authorities in support of plaintiff's motion for summary judgment at [2] (remaining citations omitted). Still, the Court should not refuse all deference to the legislature's competence or to its conduct of legislative affairs. See, e.g., Hornstein v. Barry, 560 A.2d 530, 533-34 (D.C. 1989) (en banc). While the Court is to interpret the statutory provision here disputed by reference to Congressional intent, United States v. Alston, 580 A.2d 587, 597 (D.C. 1990); District of Columbia v. Washington Home Ownership Council, Inc., supra, 415 A.2d at 1351, the Court's interpretation should be informed by established legislative practice as well as by precedent and hermeneutics more generally. Consuetudo est optimus interpres legum. Adverting to such legislative practice, as well as to the Congressional intent and the statutory and decisional law, the Court concludes that passage of the Act offends no constitutional or statutory provision and that plaintiff's assault, albeit for fully presented, must fail. WHEREFORE, the Court this XIII day of July, 2000, ORDERS that plaintiff's motion for summary judgment be, and it hereby is denied; and FURTHER ORDERS that the motion for summary judgment of defendants District of Columbia Board of Elections and Ethics and the District of Columbia be, and it hereby is, granted; and FURTHER ORDERS that the opposition of defendant Council of the District of Columbia to plaintiff's motion for summary judgment and; in the alternative, motion for summary judgment, be, and it hereby is, granted insofar as defendant Council of the District of Columbia seeks summary judgment in its favor; and FURTHER ORDERS that judgment be entered in favor of defendants and against plaintiff; and FURTHER ORDERS that plaintiff's prayer for declaratory judgment and for a prohibitory injunction be, and it hereby is, denied. John H. Bayly, Jr. Copies to: Charlotte Brookins-Hudson, Esq. Office of the Corporation Counsel 1. School District I comprises Wards 1 and 2; District II, Wards 3 and 4; District III, Wards 5 and 6; and District IV, Wards 7 and 8. 2. Recent action taken by the District of Columbia Financial Responsibility and Management Assistance Authority in respect of the School Board is synopsized in the memorandum of points and authorities in support of the Council of the District of Columbia's opposition to plaintiffs motion for summary junction and cross-motion for summary judgment at 3-7. 3. Plaintiff also contends that he has been harmed by "loss of the ability to petition the [Council]; and the creation of a 'state education agency."' Plaintiff's reply to defendants' motion for summary judgment at 5. Yet plaintiff does not explain (or even plead) how the Council's procedures here thwarted "the purpose of permitting [him] to participate in the legislative process." District of Columbia v. Washington Home Ownership Council, Inc., 415 A.2d 1349, 1352 n. 8 (D.C. 1980) (en banc). Nor does plaintiff specify how he lost his "right to petition the Council regarding his views." Plaintiff's reply to defendants' motion for summary judgment, supra, at 7. Besides advancing no injury in fact, plaintiff demonstrates no causal connection between the injury he claims and the legislative conduct he assails. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Similarly, plaintiff's dismay with what he characterizes as "an entirely new bureaucracy of undefined scope, powers which [are] unelected, ill-defined and powerful," plaintiff's reply to defendants' motion for summary judgment, supra, at 7, can in no wise constitute standing. What plaintiff asserts in this last respect is "only a generally available grievance about government" and what he seeks is relief that "no more directly or tangibly benefits him than it does the public at large." Lujan v. Defenders of Wildlife, supra, 504 U.S. at 574. His contentions of harm are pro tanto unavailing. 4. Nine Bills introduced for consideration by the Council in 1999 and 2000 are set forth and summarized in the memorandum of points and authorities in support of defendant Council of the District of Columbia's opposition to plaintiff's motion for summary judgment and cross-motion for summary judgment at 8-10. 5. References to transcript segments of pertinent proceedings of the Council are set forth with particularity in defendant Council of the District of Columbia's memorandum of points and authorities in"support of defendant Council of the District of Columbia's opposition to plaintiff's motion for summary judgment and cross-motion for summary judgment at 14. |
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