Initiative 62
American Civil Liberties Union
Amicus Brief
November 13, 2002

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IN THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
CIVIL DIVISION

CONSENT MOTION OF THE AMERICAN CIVIL LIBERTIES UNION OF THE NATIONAL CAPITAL AREA FOR LEAVE TO FILE BRIEF AS AMICUS CURIAE

Respectfully submittal,
Arthur B. Spitzer D.C. Bar No. 235960
American Civil Liberties Union of the National Capital Area 
1400 20th Street, N.W. #119 
Washington, D.C. 20036 
Tel. (202) 457-0800 
Fax. (202) 452-1868

Points and Authorities

In particular, the ACLU has been active in this court, in the D.C. Court of Appeals, and in the federal courts in the District of Columbia in cases involving the meaning of the initiative process established by the D.C. Home Rule Charter. See, e.g., Turner v. D.C. Board of Elections and Ethics, 77 F.Supp.2d 25 (D.D.C. 1999); Wimberly v. D.C. Board of Elections and Ethics, 704 A.2d 1199 (D.C. 1997); Hessey v. Burden, 615 A.2d 562 (D.C. 1992) (amicus); Convention Center Referendum Committee v. D.C. Bd. of Elections and Ethics, 441 A.2d 889 (D.C. 1981) (en banc) (amicus).

In this case, the District of Columbia asks this Court to enjoin the Board of Elections from certifying the results of the vote on Initiative Measure 62 that was on the ballot last week. Absent certification of the results, the election might as well not have happened; the ballots cast by the registered voters of the District of Columbia might as well have been dumped down the sewer. The attached amicus brief explains why this Court should not grant the relief sought by the Complaint in this case, regardless of whether Initiative Measure 62 is or is not a proper initiative under District of Columbia law.

Wherefore, the motion for leave to file an amicus brief should be granted.

November 12, 2002

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IN THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
CIVIL DIVISION

BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION OF THE NATIONAL CAPITAL AREA AS AMICUS CURIAE

INTEREST OF AMICUS

The American Civil Liberties Union of the National Capital Area is the Washington area affiliate of the American Civil Liberties Union ("ACLU"), a nationwide, nonprofit; nonpartisan membership organization with nearly 300,000 members that since 1920 has been dedicated to preserving and expanding for all Americans the principles of civil liberties and civil rights embodied in the United States Constitution. In pursuit of those goals, the ACLU regularly represents clients and files amicus briefs in cases presenting civil liberties issues.

In this case, the District of Columbia asks this Court to enjoin the Board of Elections from certifying the results of the vote on Initiative Measure 62 that was on the ballot last week. Absent certification of the results, the election might as well not have happened; the ballots cast by the registered voters of the District of Columbia might as well-have been dumped down the sewer. The attached amicus brief explains why this Court should not grant the relief sought by the Complaint in this case, regardless of whether Initiative Measure 62 is or is not a proper initiative under District of Columbia law.

ARGUMENT

This is so for three reasons: First; the relevant statute provides a specific time and manner for challenging the Board of Elections' determination that a proposed initiative is a proper subject of initiative, and the plaintiff here chose not to avail itself of that available avenue. Second, there is no threat of irreparable harm. And third, enjoining the Board of Elections from certifying the vote would violate the First Amendment rights of District of Columbia voters. We explain below.

I. This is Not the Appropriate Time or Manner in Which to Challenge the Propriety of Initiative Measure No. 62.

D.C. Code § 1-1001.16(e)(1)(a) (2001) provides that if the Board of Elections accepts a proposed initiative, any registered voter may, within 10 calendar days from the Board's publication of the proposed initiative in the D.C. Register, "seek review in the superior Court." The court is directed to expedite the matter. Id. While the statute on its face refers only to challenges of the "summary statement, short title, and legislative form," the Court of Appeals has read the law - including the general civil jurisdiction provision, D.C. Code § 11-921 (2001) - as allowing substantive challenges to the propriety of the initiative. See Hessey v. Burden, 615 A.2d 562 (D.C. 1992) (considering whether proposed. initiative was a proper subject of initiative); Committee For Voluntary Prayer v. Wimberly, 704 A.2d 1199 (D.C. 1997) (considering constitutionality of proposed. initiative). Considering substantive challenges at that time sensibly allows such purely legal issues to be resolved before the proponent spends a great deal of time and money on collecting signatures, and before the proponent and the opponents spend a great deal of time and money on an election campaign.

If the District of Columbia was of the view that the Board of Elections erred in accepting Initiative 62 as a proper subject of initiative, it (or the Mayor as a registered voter) could and should have filed suit when the text was published. 49 D.C. Register 3987 (April 26, 2002). While there may be some room for doubt about whether the statute contemplates that avenue of challenge, there can be no doubt that the statute does not contemplate any
challenge between the casting of ballots and the certification of the vote. The "Board [of Elections] shall ... [c]ertify the results of elections." D.C. Code §1-1001.05(a)(11) (2001) (emphasis added). See Davies v. D.C. Bd. of Elections and Ethics, 596 A.2d 992, 994 (D.C. 1991) ("'Plaintiff can show no right to challenge the placement of an initiative on the ballot other than the right established by statute"') (quoting Citizens Against Legalized Gambling v. D.C. Bd. of Elections & Ethics, 501 F. Supp. 786,789 (D.D.C. 1980)).

Having foregone its opportunity to challenge the Board's acceptance of proposed initiative before it was placed on the ballot, plaintiff should not now be permitted to inject its challenge in between the casting of ballots and the certification of votes. This Court should "hold that [plaintiff's] failure to mount [its] challenge to the initiative within the time frame provided by the statute bars review of the challenge by [the] court." Davies v. D.C. Bd. of
Elections and Ethics, 596 A.2d at 996.

II. Emergency Relief. Should Not be Granted Because There is No Thrat of Irreparable Harm.

The plaintiff here can show no threat of irreparable harm. It asserts (a) that "the District might not be able to obtain a judicial ruling on the validity of the Initiative" before the law became effective. because "the Board [of Elections] would seem to have no interest in the Initiative once it were transmitted to Congress." Plaintiff's Memorandum at 12 (emphasis added), and (b) that the "Mayor and Council would have to begin budgeting now" for the potential expenses created by the law. Id. (emphasis added).

There are four separate flaws with these arguments.

First, even if the Board of Elections would have no interest in this litigation after transmittal to Congress, the proponent of the Initiative, which has intervened as a defendant, plainly has a continuing interest and can be
relied upon to defend the validity of the measure.² Thus there is no reason to believe that the courts cannot address the merits before the expiration of the 60-legislative day congressional review period, probably sometime in March or April 2003.

Second, the fact that the Mayor and Council must "begin budgeting" now (assuming that is a fact³) hardly qualifies as an irreparable harm. The budgeting process is a flexible, ongoing dialogue among the Mayor and the heads of District agencies; between the Mayor and the Council; between the Mayor and Council and the Office of Management and Budget and the White House; between the Mayor and Council and the congressional District and Appropriations committees; and between the OMB and the White House and the congressional committees and leadership. The process runs until - and often beyond - the beginning, of the new fiscal year in October. Changes are constantly being made as the process moves along. The plaintiff never even attempts to explain why it would be irreparable if the Mayor and-the Council had to start thinking about the possibility that funds for this measure might have to be included in the f/y 2004 budget. To the contrary, it is obvious on the face of the matter that thinking and planning is not the stuff of irreparable harm.⁴ A draft budget can always be-and constantly is being-redrafted. Yet this is the entire ground for emergency relief asserted by the plaintiff.

Third and perhaps most important, the only thing that will happen when the Board of Elections certifies the results of the vote on Initiative 62 is that the initiative becomes "an act of the [D.C.] Council," D.C. Code § 1-204.105 (2001), and the "Chairman of the Council" then "transmit[s) the measure to the Speaker of the House of Representatives and to the President of the Senate" for congressional review, just as she would transmit any bill enacted by the Council. D.C. Code § 1-1001.16(r)(1) (2001).⁵ Like any other act of the Council, the initiative may only become law "subject to the provisions of § 1 206.02(c)." D.C. Code § 1-204.105 (2001) (emphasis added). Section 1-206.02(c) provides, in turn, that the measure must remain before Congress for a 30-legislative day period (or 60 legislative-day period if the measure would be codified in Tides 22, 23 or 24 of the Code, as Initiative 62 would appear to be) before taking effect, unless vetoed. A "legislative day" is not a calendar day, and the 30- or 60-legislative-day layover required by the Charter typically takes considerably longer than 30 or 60 calendar days.⁶

Indeed, these facts show that the real harm feared by the plaintiff is political harm--the political heat that the Mayor and Council might have to take if they exercised their authority to amend an initiative recently enacted by the voters. But it is not the proper role of this Court to shield the elected representatives of the people from political heat. That is what they were elected to take. And political heat is not irreparable harm for purposes of invoking this Court's power to order emergency equitable relief.⁷

Fourth, there is no need for emergency relief here because, assuming Initiative 62 is beyond the power of the voters to adopt as law, as plaintiff believes, it can be struck down by the courts after enactment, the same as any other ultra vires legislation enacted by the D.C. Council.

There are many limitations upon the Council's power to legislate. For example, the Council may not impose a "commuter tax" on non-residents, D.C. Code,§ 1-206(a)(5) (2001), or permit the construction of a 20-story building, D.C. Code § 1-206(a)(6) (2001). Yet if such a bill were adopted by the Council, sent to Congress, and not vetoed by Congress, it would become a law - just as Initiative 62 would become a law if transmitted to Congress and not vetoed. But in both cases any person with standing could file a lawsuit challenging the validity of the law and the courts would determine whether the law was invalid on ultra vires grounds.

However, if a resident of Virginia or the neighbor of a planned skyscraper filed suit after the Council voted on the bill and before it was transmitted to Congress, seeking an injunction against transmission, that lawsuit surely would be dismissed, for it would not be ripe, no law having yet been enacted. The situation here is the same.

For each of these reasons, plaintiff has not shown the necessary likelihood of irreparable harm.

III. Enjoining the Board of Elections from Certifying the Results of a Vote Would Violate the First Amendment Rights of D.C. Voters.

Thus, in many cases, the Supreme Court has applied First Amendment scrutiny to laws restricting ballot initiatives. See, e.g., McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995) (First Amendment right to distribute anonymous campaign literature in opposition to state referendum); Citizens Against Rent Control v. Berkeley, 454 U. S. 290 (1981) (First Amendment right of individuals to contribute to ballet initiative campaigns); First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765 (1978) (First Amendment right of corporation to contribute to ballot initiative campaign). Of particular relevance here, the Court in Meyer v. Grant, 486 U.S. 414 (1988), overturned a state prohibition against paying persons to gather signatures for a petition to place an initiative on the ballot. The Court recognized that the process of gathering signatures involved verbal interactions. between a petition circulator and a prospective signatory, thus implicating the First Amendment. But the Court also acknowledged a crucial, additional dimension of First Amendment protection: by forbidding payment to petition circulators, the state "makes it less likely that [proponents] will garner the number of signatures necessary to place the matter on the ballot, thus limiting their ability to make the matter the focus of statewide discussion." Id. at 423.

In even more drastic ways than occurred in Meyer, the plaintiff here seeks to thwart the proponent's ability to make the issue of drug treatment versus incarceration a focus of both local and national public discussion, as it will be if the measure is transmitted to Congress for review. If the indirect, procedural hurdle to conducting a ballot initiative in Meyer invited First Amendment scrutiny, surely plaintiff's effort to forestall public debate by "deep-sixing" the vote count on Initiative 62 is all the more unsustainable.

Another analogy can be found in the case law considering the First Amendment rights of legislators in casting votes upon legislation See Clarke v. United States. 886 F F.2d 404, 413 (D.C. Cir. 1989) (votes of members of D.C. Council "constitute 'speech' protected by the First Amendment"), vacated as moot, 915 F.2d 699 (D.C. Cir. 1990).⁸ In Clarke, the court expressly found that legislators' votes are "an individual and collective expression of opinion by the Council members on an issue of importance to the District as a political community." 886 F.2d at 413. By the same logic, the votes of the D.C. electorate upon a ballot initiative comprise protected speech. Indeed, the Supreme Court has described ballot initiatives as the government "'an exercise by the voters of their traditional right through direct legislation to override the views of their elected representatives as to what serves the public interest."' City of Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668, 677 (1976) (quoting Southern Alameda Spanish Speaking Organization v. Union City, 424 F.2d 291, 294 (9th Cir. 1970)). See also Convention Ctr. Referendum Comm. v. D.C. Bd. of Elections & Ethics, 441 A.2d 889, 897 (D.C. 1981) ("The initiative power . . . is a power of direct legislation by the electorate.").

It is neither necessary nor advisable, however, for this Court to rule on constitutional issues at this time. Rather, the "'deeply rooted doctrine [is] that a constitutional issue is to be avoided if possible.'" International Union of Electrical, Salaried, Machine, and Furniture Workers, AFL-CIO v. Taylor, 669 A.2d 699, 700 (D.C. 1995 (quoting Gay Rights Coalition v. Georgetown University, 536 A.2d 1, 16 (D.C. 1987) (en banc)). It is therefore "'well settled that if a case may be decided on either statutory or constitutional grounds, [the courts], for sound jurisprudential reasons, will inquire first into the statutory 'question.'" Id. (quoting Harris v. McRae, 448 U.S. 297, 306-307 (1980)) (brackets by the Court).

But the constitutional issues remain highly relevant, for whenever possible, "we construe a statute so as to avoid a constitutional confrontation." s In re Johnson, 699 A.2d 362, 369 (D.C. 1997). This Court should follow that path here, being that the relevant status do not permit the challenge plaintiff has brought, and that even if they did plaintiff has not demonstrated the likelihood of irreparable injury necessary to justify emergency injunctive relief. See, e.g., Turner v. D.C. Bd. of Elections and Ethics, 77 F.Supp.2d 25 (D.D.C. 1999) (interpreting "Barr Amendment" not to prohibit certification of vote count on Initiative 59 in order to avoid First Amendment questions that would otherwise - be presented) .

CONCLUSION

For the reasons given above, plaintiff's motion for a temporary restraining order and a preliminary injunction should be denied.

Respectfully submitted,
Arthur B. Spitzer
D.C. Bar No. 235960
American Civil Liberties Union
of the National Capital Area
1400 20th Street, N.W. #119
Washington, D.C. 20036
Tel. (202) 457-0800
Fax. (202) 452-1868

CERTIFICATE OF SERVICE

Kenneth J. McGhie, Esq.
Terry Stroud, Esq.
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

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

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

Arthur B. Spitzer

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IN THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
CIVIL DIVISION

Order

Upon consideration of the Consent Motion of the American -Civil Liberties Union of the National Capital Area for Leave to File Brief as Amicus Curiae, it is hereby

Dated: November _____, 2002

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

Kenneth J. McGhie, Esq.
Terry Stroud, Esq.
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

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

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

Arthur B. Spitzer, Esq. 
American Civil Liberties Union of the National Capital Area 
1400 20th Street, N.W. 
Washington, D.C. 20036

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IN THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
CIVIL DIVISION

NOTICE OF APPEARANCE

The Clerk will please note the appearance of the undersigned as counsel for the American Civil Liberties Union of the National Capital Area, Amicus Curiae.

November 12,.2002

CERTIFICATE OF SERVICE

Kenneth J. McGhie, Esq.
Terry Stroud, Esq.
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

Bennett Rushkoff, Esq.
Arthur Parker, Esq.
Office of the Corporation Counsel, D.C.
4414th Street, N.W. - Suite 450-N
Washington, D.C. 20001

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

Arthur B. Spitzer

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2. The proponent is fully able to carry on the litigation even if the Board drops out. See, e.g., Committee for Voluntary Prayer v. Wimberly, 704 A.2d 1199, 1200 n. l (D.C. 1987).

4. One can easily imagine the label that the Corporation Counsel would apply to a lawsuit filed by a government contractor, seeking a preliminary injunction against enactment of a law by the D.C. Council, and alleging that the plaintiff would suffer irreparable harm because it would have to "begin budgeting now" for the potential financial impact of the law upon its business. (The label would begin with the letter "f.")

5. Curiously, plaintiff appears to accept that the Council Chair's statutory duty to transmit an approved initiative to Congress is immutable, yet asserts that the Board of Election's statutory duty to certify. the result of the election, D.C. Code § 1-1001.05(a)(11) (2001), should be set aside. Plaintiff does not explain why it views the Board's duty as disposable.

7. To the extent that the plaintiff (the Executive Branch) may be worried that the Council will not agree with its views about whether or in what manner to amend the Initiative, it is surely not the job of this Court to solve that political problem by issuing injunctive relief.

8. Although the Clarke decision was vacated, such decisions remain "on the books," their reasoning available to future courts. Nat'l Black Police Assn v. District of Columbia, 108 F.3d 346, 353 (D.C. Cir. 1997).