arcnav.gif (3459 bytes)

Back to Initiative 62 main page

Initiative Measure 62
District of Columbia Office of the Corporation Counsel
Motion for a Temporary Restraining Order to Enjoin the Board of Elections and Ethics from Certifying Measure

November 13, 2002

DC Watch Home

Council Period 12

Council Period 13

Council Period 14

Council Period 15

Election 1998

Election 2000

Election 2002

themail

Search DCWatch

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
CIVIL DIVISION

DISTRICT OF COLUMBIA, Plaintiff 
v. 
DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, Defendant 
C.A. No. 8229-02
J. Terrell - Calendar 5
TRO Hearing 11/13/02

NOTICE OF HEARING

The District of Columbia has filed a motion for a temporary restraining order and preliminary injunction to enjoin the District of Columbia Board of Elections and Ethics from certifying that the Treatment Instead of Jail for Certain Non-Violent Drug Offenders Initiative of 2002 (Initiative Measure No. 62) has been approved by a majority of the electors pursuant to D.C. Official Code § 1-1001.16 (r)(1) (2001) until the District of Columbia's complaint for permanent injunction has been resolved on the merits. A copy of the District of Columbia's pleadings and proposed orders are attached to this notice. 

A hearing upon plaintiffs request for a temporary restraining order is scheduled for November 13, 2002, at 12:00 p.m. before the Honorable Judge Mary A. Terrell, in the Superior Court of the District of Columbia, 500 Indiana Avenue, N.W., Washington, D.C. 20001.

Respectfully submitted,
ARABELLA W. TEAL
Interim Corporation Counsel

CHARLOTTE W. PARKER (#186205)
Deputy Corporation Counsel
Civil Division

BENNETT RUSHKOFF (#386925) 
Senior Counsel 
ARTHUR PARKER (#376054) 
Assistant Corporation Counsel 
Office of the Corporation Counsel 
441 4th Street, N.W., Suite 450-N 
Washington, D.C. 20001 
(202) 727-3500

Attorneys for the Plaintiff

Back to top of page


SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
CIVIL DIVISION

DISTRICT OF COLUMBIA, Plaintiff 
v. 
DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, Defendant 
C.A. No. 8229-02
J. Terrell - Calendar 5
TRO Hearing 11/13/02

DISTRICT OF COLUMBIA'S MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

The plaintiff, District of Columbia, respectfully requests that the Court issue an order pursuant to Super. Ct. Civ. R. 65 (a) enjoining the District of Columbia Board of Elections and Ethics from certifying that the Treatment Instead of Jail for Certain Non-Violent Drug Offenders Initiative of 2002 (Initiative Measure No. 62) has been approved by a majority of the electors pursuant to D.C. Official Code § 1-1001.16 (r)(1) (2001) until the District of Columbia's complaint for permanent injunction has been resolved on the merits.

In support of this motion plaintiff respectfully refers the Court to the accompanying memorandum of points and authorities and exhibits attached thereto. 

Respectfully submitted,
ARABELLA W. TEAL
Interim Corporation Counsel
CHARLOTTE W. PARKER (#186205)
Deputy Corporation Counsel
Civil Division

BENNETT RUSHKOFF (#386925)
Senior Counsel
ARTHUR PARKER (#376054)
Assistant Corporation Counsel
Office of the Corporation Counsel
441 4th Street, N.W., Suite 450-N
Washington, D.C. 20001
(202) 727-3500
Attorneys for the Plaintiff

CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing District of Columbia's Motion for Temporary Restraining Order and Preliminary Injunction, Memorandum of Points and Authorities in support thereof, Notice of Hearing, proposed Temporary Restraining Order, and proposed Order Entering Preliminary Injunction was delivered by hand on this day of November, 2002 to Terry Stroud, Office of the General Counsel, District of Columbia Board of Elections and Ethics, 441 4th Street, N.W., Suite 250-N Washington, D.C. 20001, and Julie M. Carpenter, Jenner & Block, 601 13th Street, N.W., Washington, D.C. 20005, counsel for the DC Campaign for Treatment.

Arthur J. Park
Assistant Corporation Counsel

Back to top of page


SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
CIVIL DIVISION

DISTRICT OF COLUMBIA, Plaintiff 
v. 
DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, Defendant 
C.A. No. 8229-02
J. Terrell - Calendar 5
TRO Hearing 11/13/02

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DISTRICT OF COLUMBIA'S MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

The District of Columbia seeks interim orders enjoining the District of Columbia Board of Elections and Ethics (the "Board"), during the pendency of this case, from certifying that Initiative Measure No. 62 (the "Initiative") (Attachment A) has been ratified by D.C. voters. The Initiative proposes a law "appropriating funds" within the meaning of D.C. Official Code § 1-204.101 (a) (2001). Because such a law is not a "proper subject" for an initiative measure, the Initiative should never have been accepted by the Board or placed on the ballot. D.C. Official Code § 1-1001.16(b) (2001). Nevertheless, the Initiative was placed on the November 5, 2002 ballot, and it was reportedly approved by a large majority of the votes cast. D.C. Board of Elections and Ethics, Nov. 5, 2002 Unofficial Election Results (excerpt) (Attachment B).

If the Board were to "certify" that the Initiative has been ratified by the voters, the Initiative would become District of Columbia law unless, within a 30-day congressional review period, it were disapproved by both Houses of Congress. And if the Initiative became law, it would require the District's Mayor and Council to allocate significant government revenues to pay for substance abuse treatment plans to be adopted by judges of the Superior Court. The resulting interference with efforts by the District's elected officials to provide the District with sound financial management would threaten irreparable harm to the District and its residents. 

I. THE PARTIES

In bringing this case on behalf of the plaintiff District of Columbia, the Corporation Counsel is representing the Executive branch of the District of Columbia Government. The executive power of the District is vested in its Mayor. The Mayor's statutory duties include preparing, and submitting to the Council of the District of Columbia (the "Council"), annual budgets for the District Government. D.C. Official Code §§ 1-204.22 and 1-204.42 (2001). The Mayor and the members of the Council are the elected officials of the District with responsibility, subject to authority reserved by Congress, for allocating the District's government revenues through the budget process.

The defendant Board is a three-member body created by statute. D.C. Official Code § 1-1001.3 (2001). The Board's duties include conducting elections for the District and other election-related duties. D.C. Official Code § 1-1001.05(a) (2001). Except as provided in the District of Columbia Government Comprehensive Merit Personnel Act of 1978, D.C. Official Code § 1-601.01 (2001) et seq., the Board, in the performance of its duties, is not "subject to the direction of any nonjudicial officer of the District," including the Mayor. D.C. Official Code § 1-1001.06(a) (2001).

The intervenor-defendant DC Campaign for Treatment describes itself as "an organization of registered voters in the District of Columbia" and "the original proponent of Initiative 62." Memorandum of Law in Support of the Consent Motion of DC Campaign for Treatment To Intervene as a Party-Defendant, Oct. 10, 2002, at 1-2. 

II. THE INITIATIVE PROCESS IN THE DISTRICT OF COLUMBIA

Under the District of Columbia Home Rule Act, the initiative process allows voters of the District to propose laws, other than "laws appropriating funds," directly to the electorate of the District for their approval or disapproval. D.C. Official Code. § 1204.1 01 (2001).

Proposed initiatives are to be filed with the Board, which "shall refuse to accept the measure if the Board finds that it is not a proper subject of initiative . . . ." If it accepts a proposed initiative, the Board is responsible for preparing a summary statement and short title for the initiative, as well as preparing a version of the initiative itself that is "in the proper legislative form." The summary statement, short title, and legislative form are to be adopted by the Board at a public meeting. D.C. Official Code §§ 11001.16(b)(1), (c), and (d) (2001).

In order for the initiative to be placed on the ballot, the proposer has 180 days to obtain supporting signatures from 5% of the registered voters in the District of Columbia, including 5% of the registered voters in each of at least five wards. It is up to the Board to determine whether "the number and validity of signatures on the initiative" qualifies the initiative to appear on the ballot. D.C. Official Code §1-1001.16(i), (j), (p)(1) (2001). "The Board shall conduct an election on an initiative measure at the next primary, general, or city-wide election held at least 90 days after the date on which the measure has been certified as qualified to appear on the ballot." D.C. Official Code § 11001.16(p)(1) (2001).

Following an election on an initiative measure, if the Board certifies that the measure has been ratified by a majority of those voting on the measure, "the Chairman of the Council shall forthwith transmit the measure to the Speaker of the House of Representatives and to the President of the Senate." Then, after the 30-day period (excluding Saturdays, Sundays, holidays, and certain other days on which neither House is in session) following such transmittal, the measure will automatically "take effect" unless "during such 30-day period both Houses of Congress [have] adopt[ed] a concurrent resolution disapproving such initiated act." D.C. Official Code § 11001.16(r)(1) (2001). 

III. INITIATIVE MEASURE NO. 62

The short title of the Initiative is "Treatment Instead of Jail for Certain NonViolent Drug Offenders Initiative of 2002." Following adoption of its short title, summary statement, and legislative text on April 16, 2002, the Initiative was published in the District of Columbia Register (Vol. 49, No. 17, at 3987-4002) on April 26, 2002. (Attachment A) The Initiative appeared on the November 7, 2002 ballot, and the (uncertified) vote on the Initiative, prior to the counting of absentee and special/challenged ballots, was approximately 78% "FOR" and 22% "AGAINST." D.C. Board of Elections and Ethics, Nov. S, 2002 Unofficial Election Results (excerpt) (Attachment B). The Board has not yet certified the Initiative as having been ratified by a majority of those voting on it.

The Initiative seeks to "[p]rovide substance abuse treatment instead of conviction or imprisonment to eligible non-violent, first- or second-time defendants charged with illegal possession or use of drugs," excluding those drugs listed on Schedule I of the federal law known as the "Controlled Substances Act." (Initiative, "Summary Statement") Therefore, the Initiative would make treatment available to defendants charged with illegal possession or use of "Schedule II" drugs, like cocaine, but not to defendants charged with illegal possession or use of "Schedule I" drugs, like heroin or marijuana. 21 U U.S.C. § 812 (2000) (Schedule I - (b)(10), (c)(10); Schedule II - (a)(4)) (Attachment C); 21 C.F.R. Ch. II §§ 1308.11-1308.15 (4-102 Ed.) (Schedule I(c)(11), (d)(19); Schedule II-(b)(4)) (Attachment D).

If the Initiative becomes law, the Superior Court of the District of Columbia will be required to adopt a drug treatment plan for any eligible offender requesting treatment. Under the Initiative, first- or second-time offenders who request treatment, and whom the Court finds to be "eligible under this act for treatment," shall be assessed by a "qualified treatment professional." (Initiative § 5(b) and (e)) The qualified treatment professional is to submit a proposed treatment plan to the Court, along with a "list of treatment providers capable of administering the proposed treatment program or programs." (Initiative § 7(a)) If the Court "finds that the plan complies with this act," the Court shall "adopt the treatment plan as submitted." (Initiative § 7(b)) In addition, the Court shall "designate an appropriate treatment provider or providers to administer the treatment plan adopted by the court from the list of treatment providers included in the qualified treatment professional's treatment plan." (Initiative § 7(c))

The Initiative makes clear that "eligible" offenders cannot be sentenced to jail until after they have either refused treatment or been (properly) removed from treatment:

No person eligible for treatment in lieu of prosecution or incarceration under this act may be sentenced to a term of incarceration after the [effective date of the act], unless such person has first been provided an opportunity for treatment under the terms of this section and such person has elected not to receive treatment, or such person has been removed from treatment under guidelines established by this act.

(Initiative § S(f)) 

To comply with the Initiative's treatment requirement, the District would have to allocate significant government revenues to cover the cost of whatever drug treatment plans the Court might adopt for eligible offenders. The Initiative states that the Court may require the offender to pay for all or part of the cost of the treatment plan, but only to the extent that the offender can "reasonably" afford to do so:

The court may require an offender who is reasonably able to do so to pay all or a portion of the cost of the offender's participation in a treatment plan. However, such payment requirement shall not be so burdensome as to make participation in a treatment plan inaccessible, nor shall such payment requirement be excessive or punitive in nature. 

(Initiative § 7(e)) Therefore, the cost to the District of the financial obligations imposed by the Initiative would depend largely on factors outside the District's control: the number of "eligible" offenders, the cost of the particular treatment plans adopted by the Court, and the ability of individual offenders to pay for the cost of their treatment plans. In addition, the District would be obligated to create within its Department of Health an "Office of the Ombudsman" for the purpose of "help[ing] offenders mediate and resolve complaints, problems, or disputes regarding the suitability or adequacy of the treatment being provided under a treatment plan." (Initiative § 8(a))

The inclusion of cocaine among the drugs covered by the Initiative ensures that numerous first- and second-time offenders will be "eligible" for treatment, at significant cost to the District:

Treatment admissions indicate that cocaine is the drug most commonly abused in D.C. The District had more drug treatment admissions to publicly funded facilities for cocaine abuse than for any other drug from 1994 through 1999, and that number increased approximately 510 percent from 363 in 1996 to 2,225 in 1999 . . . .

Cocaine was the drug most frequently detected among adult male arrestees who were tested for drug abuse se in D.C. in 1999. Approximately 38 percent of adult male arrestees who were tested for drug abuse in D.C. tested positive for cocaine abuse in 1999 . . . . Over 60 percent of arrestees over 36 years of age who were tested for drug abuse tested positively for cocaine abuse. 

"District of Columbia Drug Threat Assessment," National Drug Intelligence Center, U.S. Dept. of Justice (Jan. 2002) at 4-5 (Attachment E). 

Drug treatment programs, as well as other drug abuse-related services, are already expensive for the District:

A significant percentage of the District's budget is used for drug treatment programs. The National Center on Addiction and Substance Abuse at Columbia University reported that D.C. spent $777 per person in 1998 on substance abuse-related services, more than any state in the nation. The District government spent approximately 15 percent of its 1998 budget on substance abuse-related programs that focused on justice, education, health, child/family assistance, mental health/developmental disabilities, employment, and public safety issues. D.C. was fifth in the nation in the percentage spent, following New York, Massachusetts, Minnesota, and California. 

Id. at 3 (Attachment E). 

The Initiative's express language confirms that a "necessary" consequence of the proposed law would be the imposition of another fiscal burden on the District. The Initiative's "Purposes and Intents" section clarifies that the District ; s not to cover the cost of treatment "made necessary" by the Initiative simply by diverting funding from existing drug treatment programs. One of the stated "purposes and intents" is

[t]o maintain existing efforts in the District of Columbia to prevent drug use and to provide treatment and rehabilitation to substance users and abusers, whether or not they are involved in the criminal justice system, without reducing funding for such efforts in order to pay for treatment and rehabilitation programs made necessary by this act. 

(Initiative § 3(6) (emphasis supplied)) The Initiative attempts to deflect any fiscal concerns by noting that increased spending on drug treatment has the potential to reduce the overall societal costs of drug abuse:

The financial costs associated with substance abuse are enormous. arguably exceeding $1 billion in the District of Columbia for health care expenditures, premature death, impaired productivity, motor vehicle crashes, crime, and social welfare cases due to alcohol and drug abuse. For every $1 spent on substance abuse treatment an average of $7 is saved in costs associated with criminal justice, health care and social services. 

(Initiative § 2(2) (emphasis supplied)) But before any of the contemplated savings could be realized, the District would first have to allocate funds to cover the cost of the courtordered drug treatment plans required by the Initiative. 

IV. ARGUMENT 

The Initiative should never have been accepted by the Board and placed on the ballot because it proposes a law that is not a proper subject of an initiative. A preliminary injunction that prevents the Board from certifying that voters have ratified the Initiative is needed in order to stop this law from taking effect. Absent injunctive relief, the Initiative threatens to cause irreparable harm by interfering with the District's budget process. 

No security is required of the District of Columbia as a condition to issuance of a temporary restraining order or preliminary injunction. Super. Ct. Civ. P. Rule 65(c).

A. Initiative Measure No. 62 should not have been accepted by the Board because the measure is not a proper subject of an initiative.

The Initiative proposes a law that, regardless of the level of funding otherwise appropriated for substance abuse treatment services, would require the District's elected officials to allocate significant District government revenues to pay for whatever substance abuse treatment plans are adopted by the Court. Such a proposed law is not a proper subject of an initiative measure because, under D.C. Official Code § 1-204.101(a) (2001), "laws appropriating funds" are expressly excluded from the initiative process. Therefore, by accepting the Initiative and proceeding to give it a short title, summary statement, and legislative text, the Board violated its statutory obligation to "refuse to accept [a proposed initiative] measure if the Board finds that it is not a proper subject of initiative." D.C. Official Code § 1-1001.16(b)(1) (2001).

In Hessey v. District of Columbia Board of Elections and Ethics, 601 A.2d 3 (D.C. 1991) (en banc), the Court of Appeals construed the "laws appropriating funds" exception broadly so as to exclude "acts allocating funds" from the initiative process:

    [The Court of Appeals'] interpretation equates "laws appropriating funds" with "acts allocating funds" in recognition of the nature of the [D.C.] Council's role in the budget process and its financial responsibilities under the [District of Columbia's] Charter. It thereby balances the right of initiative with the Charter's provisions for sound financial management by the District government's elected officials .... The initiative right must conform to the structure of government established by Congress in the Charter. This means that a measure which would intrude upon the discretion of the Council to allocate District government revenues in the budget process is not a proper subject for initiative. This is true whether or not the initiatives would raise new revenues.

Failure to extend the limitations on the initiative right to the full measure of the Council's role in the District's budget process is incompatible with the Council's financial responsibilities under the Charter. Therefore, the right of initiative cannot extend to the Council's discretion to allocate revenues. . . . 

Id. at 19-20 (emphasis supplied). 

The Court of Appeals' en banc decision in Hessey expressly overruled its earlier holding in District of Columbia Board of Elections and Ethics v. District of Columbia, 520 A.2d 671 (D.C. 1986), that "an initiative which created an entitlement, enforceable by a private right of action, did not run afoul of the 'laws appropriating funds' or other limitations on the right of initiative." Hessey, 601 A.2d at 20 n.34. As explained in Hessey, an enforceable entitlement does implicate the "laws appropriating funds" limitation:

The interference with the Council's allocation power results from the fact that by obtaining a money judgment against the District government, a litigant would force the Council to allocate funds to pay the judgment. Cf. [District of Columbia Board of Elections and Ethics v.] Jones, [ ] 481 A.2d. [456,] 460 (automatic increase in unemployment benefits would "compel a prohibited interference with the management of fiscal affairs of the District"). 

Id. 

Similarly, if the Initiative were to take effect and make certain defendants eligible for court-ordered drug treatment, the Council would be forced to allocate funds to pay for the required treatment. As in Hessey,

[t]he effect of the initiative would be to delay or condition the Council's allocation authority, forcing the Council to use . . . funds in accordance with the initiative rather than in the discretion of the Council to meet District government needs. [footnote omitted] The electorate, rather than the District government's elected officials, would direct the allocation of District revenues. 

Id. at 20. For this reason, the Initiative would constitute an improper intrusion upon the discretion of the Mayor and the Council to allocate the amount of funding for drug treatment that they determine can be provided within the fiscal limitations facing the District.

B. The District meets the standard for obtaining preliminary injunctive relief.

The District easily satisfies the standard for obtaining preliminary injunctive relief, as articulated in District of Columbia v. Group Insurance Admin., 633 A.2d 2, 21 (D.C. 1993) (quoting Wieck v. Sterenbuch, 350 A.2d 384, 387 (D.C. 1976)) (brackets in original):

A proper exercise of discretion requires the trial court to consider whether the moving party has clearly demonstrated (1) that there is a substantial likelihood he [or she] will prevail on the merits; (2) that he [or she] is in danger of suffering irreparable harm during the pendency of the action; (3) that more harm will result to him [or her] 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.

As demonstrated in the preceding section, there is a substantial likelihood of the District prevailing on the merits in this case. The Court of Appeals' decision in Hessey clarified that the initiative process cannot be used to force District officials to allocate revenues to particular purposes, such as the cost of drug treatment plans to be ordered by the Superior Court. Because the Initiative proposes a measure that "is not a proper subject of initiative," it never should have been accepted by the Board or placed on the ballot. D.C. Official Code § 1-1001.16(b)(1) (2001). Therefore, the District is likely to obtain the declaratory and injunctive relief required to prevent the Initiative from becoming law or taking effect. The District is in danger of suffering irreparable harm during the pendency of this case. If the Board were to certify that the Initiative has been ratified, thereby causing the Initiative to be transmitted to Congress, the Initiative would automatically take effect unless it were disapproved by both Houses of Congress. D.C. Official Code § 11001.16(r)(1) (2001). After the Initiative were transmitted to Congress, the Board could not "take it back" even if ordered to do so by this Court. Moreover, the Board would seem to have no interest in the Initiative once it were transmitted to Congress and would have little incentive to continue defending this action. As a result, the District might not be able to obtain a judicial ruling on the validity of the Initiative until the Court began adopting drug treatment plans for "eligible" defendants who could not afford to pay for their own treatment.

But the District's Mayor and Council would have to begin budgeting now for the additional financial obligations the District would face when the Initiative went into effect on October 1, 2003. (Initiative § 13 ("Effective Date")) If such interference in "the discretionary process by which revenues are identified and allocated among competing programs and activities" were allowed, then "the improved financial management envisioned by the financial policies in the [District of Columbia's] Charter would be jeopardized." Hessey v. District of Columbia Board of Elections and Ethics, 601 A.2d 3, 19 (D.C. 1991). Any resulting disruption to the District's budget process could not be remedied by subsequent judicial relief and would therefore constitute "irreparable harm."

In addition, the District would clearly suffer more harm if the request for interim injunctive relief were denied than the Board or intervenor would suffer if the request were granted. If the TRO and preliminary injunction were denied, the Initiative would be transmitted to Congress and, unless disapproved, would become law irrespective of how this Court ultimately rules on the merits. If, on the other hand, the TRO and preliminary injunction were granted, the Court could require the parties to adhere to an accelerated schedule that would allow the Court to enter a final judgment months before October 1, 2003, the earliest possible "Effective Date." (Initiative § 13)

Finally, the public interest would not be disserved by issuance of a TRO and preliminary injunction. The interim injunctive relief would preserve the Court's ability to prevent the Initiative from being transmitted to the Congress in the event the Court determines that it was "not a proper subject of initiative." And it would not prevent the Board, if successful on the merits, from forwarding the Initiative to Congress in plenty of time for the measure to take effect on the October 1, 2003 "Effective Date."

CONCLUSION

For the reasons stated above, the District of Columbia respectfully requests that the Court issue the requested Temporary Restraining Order and Preliminary Injunction.

Respectfully submitted,
ARABELLA W. TEAL
Interim Corporation Counsel

CHARLOTTE W. PARKER (#186205)
Deputy Corporation Counsel
Civil Division

BENNETT RUSHKOFF (#386925_
Senior Counsel
ARTHUR PARKER (#376054)
Assistant Corporation Counsel
Office of the Corporation Counsel
441 4th Street, N.W., Suite 450-N
Washington, D.C. 20001
(202) 727-3500

Attorneys for Plaintiff District of Columbia
Dated: November 8, 2002

Back to top of page


SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
CIVIL DIVISION

DISTRICT OF COLUMBIA, Plaintiff
v.
DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, Defendant
C.A. No. 8229-02
J. Terrell - Calendar 5
TRO Hearing 11/13/02

TEMPORARY RESTRAINING ORDER

Upon consideration of plaintiffs Motion for Temporary Restraining Order and Preliminary Injunction, the memorandum of points and authorities with supporting documents attached thereto, the allegations in the complaint, any opposition thereto, representations by all the parties at a hearing on this matter, and it appearing that sufficient reasons have been given therefor, it is, by the Court, this _____ day of _____, 2002,

ORDERED: That plaintiffs motion for a temporary restraining order be, and the same is, hereby GRANTED; and it is

FURTHER ORDERED: That defendant is enjoined from certifying that the Treatment Instead of Jail for Certain Non-Violent Drug Offenders Initiative of 2002 (Initiative Measure No. 62) has been approved by a majority of the electors pursuant to D.C. Official Code § 1-1001.16 (r)(1) (2001) until after the District of Columbia's motion for preliminary injunction has been resolved; and it is

FURTHER ORDERED: That the parties shall appear before this Court at _____ A.M./P.M. on the _____ day of _____, 2002, for a hearing on the plaintiff's motion for preliminary injunction.

Mary A. Terrell
Judge, Superior Court of the District of Columbia

Copies to:

Bennett Rushkoff
Arthur Parker
Office of the Corporation Counsel
441 4th Street, N.W., Suite 450-N
Washington, D.C. 20001

Kenneth J. McGhie
General Counsel
District of Columbia Board of Elections and Ethics
441 4th Street, N.W., Suite 250-N
Washington, D.C. 20001

Julie M. Carpenter
Jenner & Block
601 13th Street, N.W.
Washington, D.C. 20005

Back to top of page


SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
CIVIL DIVISION

DISTRICT OF COLUMBIA, Plaintiff
v.
DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, Defendant
C.A. No. 8229-02
J. Terrell - Calendar 5
TRO Hearing 11/13/02

ORDER ENTERING PRELIMINARY INJUNCTION

On November 8, 2002, the District of Columbia ("District") filed a motion for temporary restraining order and preliminary injunction to enjoin the District of Columbia Board of Elections and Ethics ("Board") from certifying that the Treatment Instead of Jail for Certain Non-Violent Drug Offenders Initiative of 2002 (Initiative No. 62) has been approved by a majority of the electors pursuant to D.C. Official Code §1-1001.16(r)(1)(2001) until the District of Columbia's complaint for permanent injunction has been resolved on the merits. On the _____ day of _____, 2002, this Court issued a Temporary Restraining Order enjoining the Board from certifying the voters' approval of Initiative No. 62 until after the conclusion of a hearing on the District's motion for preliminary injunction.

On the _____ day of _____, 2002, this Court considered the evidence presented at a hearing on the District's motion for preliminary injunction, along with all the pleadings, and determined that:

1. this Court has subject matter jurisdiction of this case pursuant to D.C. Official Code § 11-921, and personal jurisdiction over the Board;

2. the District has established a likelihood of success on the merits of their complaint because Initiative No. 62 proposes a law that appears to require the District's elected officials to allocate significant District government revenues to pay for treatment for eligible defendants charged with illegal possession or use of drugs; such proposed laws are not proper subjects of initiative measures because a they would constitute "laws appropriating funds" within the meaning of D.C. Official Code § 1204.101(a) (2001);

3. the District of Columbia is in danger of suffering irreparable harm if the Court does not grant its motion and order a preliminary injunction; without an injunction to maintain the status quo during the pendency of this case, the District will likely not be able to obtain a judicial ruling on the validity of Initiative No. 62 without first having to budget funds for the additional financial obligations imposed by Initiative No. 62;

4. the harm to the District of Columbia outweighs the harm to the other parties if the status quo is not maintained until the conclusion of a trial on the merits of the District's complaint because Initiative No. 62 would be transmitted to Congress and, unless disapproved, would become law irrespective of how this Court rules on the merits, while resolution of this matter on the merits is likely to occur well before October 1, 2003, the earliest possible effective date for Initiative No. 62.; and

5. the public interest weighs in favor of the District because Initiative No. 62, if allowed to become law, would threaten to interfere with efforts by the District's elected officials to provide the District with sound financial management.

Accordingly, it is this , day of , 2002,

ORDERED: That the plaintiffs motion for a preliminary injunction be, and the same is, hereby GRANTED; and it is

FURTHER ORDERED: That defendant is enjoined from certifying that the Treatment Instead of Jail for Certain Non-Violent Drug Offenders Initiative of 2002 (Initiative Measure No. 62) has been approved by a majority of the electors pursuant to D.C. Official Code § 1-1001.16 (r)(1) (2001) until after the District of Columbia's complaint for a permanent injunction has been resolved.

Mary A. Terrell
Judge, Superior Court of the District of Columbia

Copies to:

Bennett Rushkoff
Arthur Parker
Office of the Corporation Counsel
441 4th Street, N.W., Suite 450-N
Washington, D.C. 20001

Kenneth J. McGhie General Counsel
District of Columbia Board of Elections and Ethics
441 4th Street, N.W., Suite 250-N
Washington, D.C. 20001

Julie M. Carpenter
Jenner & Block
601 13th Street, N.W.
Washington, D.C. 20005

Back to top of page


Send mail with questions or comments to webmaster@dcwatch.com
Web site copyright ©DCWatch (ISSN 1546-4296)