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IN THE
SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
|
| 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 |
In February of 2002, the DC Campaign for Treatment presented to the Board a measure entitled, "Treatment Instead of Jail for Certain Non-Violent Drug Offenders Initiative of 2002" ("Original Measure"). The Board sent copies of the Original Measure, and notice of a proper subject hearing concerning the same, to both the Office of the Corporation Counsel and the Office of the General Counsel for the D.C. Council on February 14, 2002. The Board received responses from the Office of the Corporation Counsel and the Office of the General Counsel for the D.C. Council on March 6, 2002 and February 21, 2002, respectively. Each of these correspondences revealed that both entities believed that the Original Measure violated the "laws appropriating funds" exception to the right of initiative. Both letters cited the Original Measure's "Funding For Treatment" section (Attachment A), which contained, inter alia, the following provisions:
Original Measure, Section 1(3)-(4), "Funding For Treatment."There is established the Substance Abuse Treatment Fund ("Fund") for carrying out the purposes of this act. The Fund shall be comprised of general revenue funds appropriated by a line item in the budget submitted pursuant to § 1-204.46 of the District of Columbia Code, and authorized by Congress in an appropriations act for the purpose of this act. The Mayor shall, subject to authorization by Congress in an appropriations act, deposit in the Fund any and all other funds received on behalf of the Fund for the purpose of this act.
The District of Columbia shall maintain its prior efforts to provide substance abuse treatment and rehabilitation during at least the first six fiscal years following passage of this act. Funds appropriated to pay for treatment programs under this act shall supplement, and not supplant, funding for substance abuse prevention and treatment programs and other rehabilitation programs operating prior to the enactment of this act.
The Board, acting on the advice of its General Counsel, as well as the counsel provided in the aforementioned letters, rejected the Original Measure on the grounds that these provisions rendered the Original Measure a "law appropriating funds" in violation of laws governing the right of initiative.
In March of 2002, DC Campaign submitted a revised version of the proposed measure ("Initiative 62") to the Board. This updated version differed from the Original Measure in one major respect: the entire "Funding For Treatment" section was omitted.
Once again, in March, 2002, the Board sent copies of Initiative 62, and notice of a proper subject hearing concerning the same, to both the Office of the Corporation Counsel and the Office of the General Counsel for the D.C. Council. The proper subject hearing took place on April 3, 2002. The Board accepted Initiative 62 on that date. On April 5, 2002, the Board received correspondence from the Corporation Counsel indicating that, in spite of the revisions, "it is possible - if not likely - that the courts would conclude that [the measure] [is] not [a] proper subject matter [under the "law appropriating funds" exception to the initiative right.]" Letter from Daryl G. Gorman, Senior Deputy Corporation Counsel, to Kenneth J. McGhie, Board General Counsel, of 4/5/02, at 3. The Board received no response from the D.C. Council.
On July 8, 2002, Initiative 62's proponent submitted to the Board a supporting petition containing 20,299 signatures. On August 7, 2002, the Board certified Initiative 62 for ballot access. The preliminary results of the November 5, 2002 General Election contest concerning Initiative 62 indicated that the vote was approximately 78% "FOR" and 22% "AGAINST" the measure. On September 20, 2002, the Office of Corporation Counsel filed this action against the Board, claiming that it erred when it accepted Initiative 62 because it proposes a law appropriating funds in violation of District law.
This jurisdiction has had several opportunities to consider the impact of the "laws appropriating funds" exception to the District's initiative right. In the first case involving this issue, the D.C. Court of Appeals noted that the Council adopted the exception out of a concern that "the electorate not use the initiative to launch the appropriations process." Convention Center, 441 A.2d, 889, 912 (D.C. 1981). The court fully recognized that the Council intended that the initiative right be used as a means by which the electorate could authorize substantive programs, but that it did not intend for it to also confer the authority to require the Council to seek funding for such programs. Accordingly, that court concluded that the exception serves to prohibit "the electorate from using the initiative to: 1) adopt a budget request act or make some other affirmative effort to appropriate funds[.]" Id. at 913-914(emphasis added). The court also concluded, however, that the exception was not intended to bar "initiatives that would authorize (but not fund) a new project, ... or prohibit future budget requests," id. at 893, and that it did "not appear to proscribe initiatives with a prospective fiscal effect only." Id. at 915.
In Hessey v. Board of Elections and Ethics, 601 A. 2d 3 (D.C. 1991)("Hessey II"), the same court undertook to clarify the limitation on the electorate's right to propose measures. After an exhaustive review of what that court called D.C.'s "unique" budgetary process and financial management policies, it held that a law which appropriates funds is one which allocates revenues. See id. at 19. In so doing, the court recognized that, to the extent that the District's elected officials engage in the appropriations process, they are engaging in "the discretionary process by which revenues are identified and allocated among competing programs and activities[.]" Id. Concluding that it was this process that the drafters of the exception sought to exclude the electorate from, the court held 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 of initiative." Id. at 20. The question that this Court would be deciding, then, is whether or not the proposed initiative affirmatively seeks to interfere with or limit the authority of the District's elected officials to identify and allocate revenues, and otherwise act as the guarantors of responsible fiscal management in the District. The Defendant Board argues that it does not.
An examination of the cases in which the court reviewed initiatives and ruled on the issue of whether they sought to appropriate fiends indicates that Initiative 62 meets the proper subject requirements set forth in District law. First, Initiative 62 is clearly not a measure which would stop the expenditure of funds which have already been appropriated. See Convention Center, 441 A.2d, 889, 915 (D.C. 1989)(stating that the initiative at issue was "beyond the scope of the initiative power [because it] would interdict the expenditure of currently appropriated funds.")
Second, Initiative 62 is not a measure, like the one at issue in District of Columbia Board of Elections and Ethics v. Jones, 481 A.2d 456 (D.C. 1984), which by its very terms would actually spend money and set the appropriations process in motion, such that the Council would have no discretion with regard to the level of funding designated for the program. The measure at issue in Jones instructed the Office of Unemployment Compensation ("OUC") to automatically increase employment benefits to unemployed persons in the District. Such benefits were paid out of a Benefits Account maintained by the U.S. Treasury, and OUC requisitioned loans from the U.S. Treasury to cover shortfalls in the account. The Jones initiative would have required OUC to pay out greater benefits than the account could have sustained, thus requiring it to borrow from the U.S. Treasury. Thus, the measure was self-actuating and automatic, and would have forced the Council to request appropriations after expenditures had already been made, leaving it with absolutely no funding discretion concerning the measure whatsoever. Initiative 62, by contrast, would leave the Council with discretion with regard to the level of funding afforded Initiative 62. The Council could arguably even decide not to fund Initiative 62 at all. Because the Council retains this range of discretion, Initiative 62 does not violate the "law appropriating funds" exception.
Finally, Initiative 62 does not contain any provision which creates a judicially enforceable entitlement, and thereby forces the District's elected officials to allocate monies to fund the program, or else. Such a provision appeared in the Right to Overnight Shelter measure at issue in District of Columbia Bd. Of Elections v. District of Columbia, 520 A.2d 671, (D.C. 1986), and provided that "[a]ny person aggrieved by a failure of the District of Columbia to provide the overnight shelter declared to be a right by this chapter, or by an action that is likely to lead to such a failure, may sue for relief in any court of competent jurisdiction. The court may grant such relief as it deems appropriate." Id. at 675 (citing "D.C. Right to Overnight Shelter Initiative of 1984").
While the 1986 court held that the inclusion of this provision did not render the measure a law appropriating funds, an en banc court in Hessey II wrote that this earlier ruling was flawed, positing that "[t]he 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." Hessey II, 601 A.2d 3, 20 n.34 (D.C. 1991). While the Hessey II court focused on the fact that monies would have to be allocated to pay any judgments that resulted from the failure to provide shelter, members of the court in the 1986 case recognized that the provision was problematic primarily because it "include[d] the mechanism of court judgments to obtain funding to carry out its purposes." District of Columbia Bd. Of Elections v. District of Columbia, 520 A.2d 671, 677 (D.C. 1986)(Nebeker, J., writing separate opinion in favor of granting petition for rehearing en banc). The inclusion of this provision, then, was viewed as a means by which to force the Council to appropriate funds for the program at issue.
Initiative 62 merely seeks to establish a substantive program whereby eligible participants would be afforded substance abuse treatment instead of conviction or imprisonment, and it does so in a manner consistent with the right of initiative. The proponents of the measure, rather than attempting to interfere with the elected officials' budgetary responsibilities, are permissibly attempting to influence its legislative priorities. This is a phenomenon that was surely contemplated when the right of initiative was granted to the electorate; as a dissenting Judge in Convention Center noted, "[I]nitiatives are by their nature intended to interfere with elected officials on specific public issues. The right to do so was reserved to the people precisely for the reason that they might on occasion conflict with decisions taken (or not taken) by government." Convention Center, 441 A.2d 889, 922-23 (D.C. 1981)(Gallagher, J., dissenting). It was also contemplated that the right of initiative "might at times complicate [the Council's] budgetary decisions." Id. at 926. However, as long as an initiative does not attempt to usurp the Council's ultimate responsibility for the District's fiscal welfare, it should not be deemed to violate the "laws appropriating funds" exception to the right of initiative.
Initiative 62 may certainly require future funding, but it does not make any effort, affirmative or otherwise, to fund itself. Indeed, the primary evidence that the initiative does not represent an affirmative effort to appropriate funds is the action taken by the measure's proponent upon learning that the measure, as originally written, likely violated the "laws appropriating funds" exception: the deletion of the offensive provisions, namely the entire "Funding For Treatment" section of the original measure, which the Plaintiff had indicated violated the "laws appropriating funds" exception to the initiative right.
In fact, because Initiative 62's proponents removed the "Funding For Treatment" section, the Plaintiff's reliance on Hessey II is wholly inapposite. In Hessey II, the court ruled that the measure at issue there was invalid because it would have created a trust fund for the deposit of new revenues which could only be used to increase the supply of housing for low and moderate income families. Therefore, the Council, pursuant to the terms of the initiative, would have been "forc[ed] . . . to use [funds in the trust fund] in accordance with the initiative rather than in the discretion of the Council to meet District government needs." Hessey II, 601 A.2d 3, 20(D.C. 1991). As was discussed above, Initiative 62 was amended by its proponents to omit a provision which would have established a similar fund, revenues in which would have been used for the sole purpose of funding the program.
While Initiative 62 can be said to create an entitlement, that entitlement is not made judicially enforceable by the measure, and while there may certainly be a fiscal impact, such impact is wholly prospective and not barred by the "law appropriating funds" exception to the initiative right.
The Plaintiff will suffer no irreparable harm if the Board certifies that Initiative 62 was ratified by the District's electorate. The Board's certification of the election results is merely a ministerial : act, one minor step in the process of enactment which began eight months ago when the proposed measure which became Initiative 62 was submitted to the Board. And while it is correct that the Board could not "take [the initiative] back," once it was transmitted to Congress, the fact remains that, if enacted, Initiative 62, like every other D.C. statute, may be amended by vote of the Council and approval of the Mayor. Indeed, it is within the power of the Mayor and the Council to repeal the whole of the measure. A law enacted by voter initiative is, in this respect, no different from any other law adopted through the legislative process. There is precedent for revision of initiative measures that have been enacted in the District. In fact, Initiative 3, a measure on the question of statehood, was amended by the Council after enactment and before any appropriations in 1981. D.C. Law 3-171 (1981). Most recently, the Council amended a 1994 initiative which set term limits for certain elected officials. See D.C. Law 14-026 (2001)(amending the "Term Limits Initiative of 1994"). Consequently, there would be no bar whatsoever to the Plaintiff's amending Initiative 62, if enacted, to include a clause which would serve to clarify that the measure is subject to the Council's discretion to allocate funds. Such clause, in fact, would be consistent with the intent of the measure's proponents.
Moreover, the Plaintiff's own actions, or, more appropriately, inaction, belies its claim that it will suffer irreparable harm if the temporary restraining order is not granted. Any harm that could have conceivably befallen the Plaintiff with respect to Initiative 62 occurred when the Board accepted the measure as a proper subject on April 3, 2002. Yet, aside from a letter submitted to the Board two days after the proper subject hearing expressing qualms about the measure, the Plaintiff took no action with respect to Initiative 62 until over five months later. There was nothing that prevented the Plaintiff from asserting its present claim so that this Court could have addressed the "proper subject" question and resolved it conclusively before the Board formulated and approved the measure's short title, summary statement, and legislative form; before the Board issued to the initiative's proponents a petition form for the purpose of collecting the requisite amount of signatures for the measure to be placed on the ballot; before the proponents collected and submitted over 20,000 signatures in their successful effort to achieve ballot access, and; before the Board certified the measure for ballot access.2 Yet, the Plaintiff did not. Such inactivity does not support a claim of irreparable harm.
Respectfully Submitted,
Kenneth J. McGhie, D.C. Bar No. 385313
General Counsel
Terri D. Stroud, D.C. Bar No. 465884
Staff Attorney
D.C. Board of Elections and Ethics
441 4th Street, #270N
Washington, D.C. 20001
Telephone (202) 727-2194
Bennett Rushkoff, Esq.
Senior Counsel
Office of the Corporation Counsel
441 4th Street, NW, Suite 450N
Washington, DC 20001
Julie M. Carpenter, Esq.
Jenner & Block
601 13th Street, NW
Washington, DC 20005
Terri D. Stroud
COUNCIL SCHEDULES HEARINGS ON FY 2003 BUDGET REQUEST FOR VARIOUS AGENCIES
BOARD OF ELECTIONS AND ETHICS SCHEDULES HEARING TO REVIEW INITIATIVE MEASURES
OFFICE OF DEPUTY MAYOR FOR PUBLIC SAFETY AND JUSTICE GIVES NOTICE OF FUNDING AVAILABILITY
BOARD OF ELECTIONS AND ETHICS CERTIFIES ANC/SMD VACANCIES AND FILLING A VACANCY IN ADVISORY NEIGHBORHOOD COMMISSION
OFFICE OF DOCUMENTS AND ADMINISTRATIVE ISSUANCES PUBLISHES CUMULATIVE LIST OF AMENDMENTS TO D. C. MUNICIPAL REGULATIONS THROUGH FEBRUARY 28, 2002
NOTICE OF PUBLIC HEARING
RECEIPT AND INTENT TO REVIEW INITIATIVE MEASURE
The Board of Elections and Ethics shall consider in a public hearing whether the proposed "Treatment Instead of Jail for Certain Non-Violent Drag Offenders Initiative" is a proper subject matter for initiative, at the regular Board meeting on Friday March 8, 2002 at 10:30 a.m., One Judiciary Square, 441 4h Street, N.W., Suite 280, Washington, D.C.
The Board requests that written memoranda be submitted for the record no later than 4:00 p.m., Monday March 4, 2002 to the Board of Elections and Ethics, General Counsel's Office, One Judiciary Square, 441 4th Street, N.W., Suite 270. Washington, D.C. 20002.
Each individual or representative of an organization who wishes to present testimony at the public hearing is requested to furnish his or her name, address, telephone number and name of the organization represented (if any) by calling the General Counsel's office on 727-2194 no later than Monday, March 4,, 2002.
The Short Title, Summary Statement and Legislative Text of the proposed initiative reads as follows:
SHORT TITLE
Treatment Instead of Jail for Certain Non-Violent Drug Offenders Initiative
SUMMARY STATEMENT
This initiative, if passed, will reduce wasteful spending on incarceration and ensure that eligible, nonviolent, first- or second-time drug possession defendants and other drug-addicted defendants shall, upon request, receive treatment instead of conviction or incarceration. Defendants accepted for treatment shall receive treatment plans and, upon successful completion of treatment, dismissal of any stayed proceedings. The initiative establishes a Department of Health ombudsman's office to help modify treatment plates if necessary, and creates the "Substance Abuse Treatment Fund." 's initiative does not reduce penalties associated with any criminal offense, specifically federal schedule I offenses.
LEGISLATIVE TEXT
Be it enacted by the Electors of the District of Columbia. that this act
may be cited as the "Treatment Instead of Jail for Certain
Non-Violent Drug Offenders Initiative."
(I) FUNDING FOR TREATMENT.
(1) Within 60 days of enactment of this act, the Mayor shall designate the Department of Health or its successor agency to direct implementation of the programs required by this act.
(2) The Council of the District of Columbia shall enact legislation and the Department of Health shall promulgate regulations for the implementation of this act consistent with its purposes and intent. The Department of Health shall ensure the provision of a diversity of treatment programs to ensure the availability of a continuum of services from low-threshold to residential drug treatment, including narcotic replacement therapies, as well as services designed for the special needs of women and parents, youth, the mentally ill, people with HIV or AIDS and other co-occurring health problems, pregnant women, and other culturally and linguistically diverse populations. These services shall be sited throughout the District in manner designed to adequately address the needs of the eligble offender population. The Department of Health may also develop other treatment options.
(3) There is established the Substance Abuse Treatment Fund ("Fund") for carrying out the purposes of this act. The Fund shall be comprised of general revenue funds appropriated by a line item in the budget submitted pursuant to §1-204.46 of the District of Columbia Code, and authorized by Congress in an appropriations act for the purpose of this act. The Mayor shall, subject to authorization by Congress in an appropriations act, deposit in the Fund any and all other funds received on behalf of the Fund for the purpose of this act.
(4) The District of Columbia shall maintain its prior efforts to provide substance abuse treatment and rehabilitation during at least the first six fiscal years following passage of this act. Funds appropriated to pay for treatment programs under this act shall supplement, and not supplant, funding for substance abuse prevention and treatment programs and other rehabilitation programs operating prior to the enactment of this act.
(5) Except as otherwise provided herein, the director of the Department of Health shall distribute annually all monies appropriated to the Substance Abuse Treatment Fund to the Department of Health's affiliated agencies or bodies to pay for the costs of providing treatment programs for offenders eligible under this act and for offenders placed in treatment under other intervention-in-lieu-of incarceration programs.
(6) The director of the Department of Health shall determine the allocation of the monies from the Substance Abuse Treatment Fund. The Department of Health may also reserve up to five percent of the funds available in the Substance Abuse Treatment Fund to pay for the its administrative costs associated with implementing this act, and may reserve up to an additional one percent of the funds available to pay for a long-term evaluation of the offender populations and treatment programs affected by this act. At least 85 percent of the distributed funds shall be spent on the provision of community-based treatment and rehabilitation services to offenders eligible under this act, persons placed in treatment under other intervention-in-lieu-of-incarceration programs, or persons who commit drug-related violations of the terms of supervised release from prison. No more than 15 percent of the distributed funds shall be devoted to drug testing or non-treatment expenses made necessary by the provisions of this act, including, but not limited to, case management and administration costs for treatment providers, transportation for offenders to treatment, additional probation department costs and court costs. The director of the Department of Health may stipulate permissible uses of such non-treatment funds.
(7) Each agency or body receiving funds shall be required to submit to the Department of Health annual reports or more frequent reports, subject to annual audits by the District of Columbia Auditor, detailing the use of funds provided under this act.(8) The Department of Health shall annually collect and publish data to evaluate the effectiveness and financial impact of the treatment programs implemented under this act. The study shall include, but not be limited to, a review of the implementation process; any changes in overall drug-related costs of probation, incarceration, and supervised release; changes in recidivism rates for non-violent drug offenders; changes in crime; changes in prison and jail construction; changes in health outcomes for drug users; changes in welfare costs; changes in employability of persons completing treatment elected under this act; comparisons of treatment modalities; adequacy of funds appropriated; and other impacts or issues identified by the department. The Department of Health shall also collect data on the race, gender and age of drug offenders, demographic information on types, numbers and locations of controlled substances arrests, prosecutions, diversions to treatment under this act and otherwise, and completion of treatment. The Department of Health shall also evaluate funding and funding sources to ensure that funds appropriated to pay for treatment programs under this act supplement, rather than supplant, funding for substance abuse prevention and treatment programs and other rehabilitation programs operating prior to the enactment of this act.
(J) LIMITED SCOPE OF TREATMENT RIGHT. Nothing in this act prohibits the Council of the District of Columbia from authorizing treatment or treatment in lieu of incarceration or other penalties.
(K) DEFINITIONS. As used in this act,
(2) "Controlled substance" means a drug, substance, or immediate precursor, as defined in §48-901.02(4) of the District of Columbia Code, but does not include
| 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 |
Upon consideration of Plaintiffs Motion for a Temporary Restraining Order and Preliminary Injunction, it is, by this Court this _____ day of _____, 2002,
ORDERED that the Plaintiff's Motion for a Temporary Restraining Order and Preliminary Injunction be, and the same is hereby, DENIED.
Judge Mary A. Terrell
Superior Court of the District of Columbia
Copies to:
Bennett Rushkoff
Arthur Parker
Office of the Corporation Counsel
441 4th
Street, NW, Suite 450N
Washington, DC 20001
Kenneth J. McGhie
Terri D. Stroud
District of Columbia Board of Elections
and Ethics
441 4th Street, NW, Suite 250N
Washington, DC 20001
Julie M. Carpenter
Jenner & Block
601 13th Street, NW
Washington, DC 20005
1. This exception reflects the view that the District's elected officials, and not the electorate, should be responsible for the District's financial management, and determine how revenues are allocated among competing programs and activities.
2. Indeed, it was the D.C. Council's intention that such questions be resolved before the petition circulation process. Prior to 1981, the D.C. Election Code provided that the Board's determination of whether or not a measure met the "proper subject" requirements would take place after the circulation of petitions. In a report dated October 21, 1981, William R. Spaulding, then-Chair of the D.C. Council's Committee on Government Operations, explained to the Council the rationale for the bill which set the proper subject review before the petition circulation process:
[Proper] [s]ubject determination would be made prior to circulation of petitions. Such action would prevent measures which are specious in nature from being circulated and would safeguard a proponent from expending unnecessary monies and human resources on [a] measure which would ultimately be rejected.
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