Initiative 62
DC Campaign for Treatment 
Opposition to Motion to Enjoin the Board of Elections from Certifying Election Results
November 13, 2002

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SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
CIVIL DIVISION

OPPOSITION OF INTERVENOR THE DC CAMPAIGN FOR TREATMENT TO PLAINTIFF'S MOTION FOR A TEMPORARY RESTRAINING ORDER AND A PRELIMINARY INJUNCTION

Seventy-eight percent of District of Columbia voters voted for Initiative Measure 62, the "Treatment Instead of Jail for Certain Non-Violent Drug Offenders Initiative of 2002." The District of Columbia now asks this Court to prohibit the District of Columbia Board of Elections and Ethics from certifying that Measure 62 has been approved by the voters.

This Court should deny this motion because the Board's certification of the vote will not irreparably harm the District. Board certification is not the trigger for the Measure to take effect - indeed, as the District concedes, the "earliest possible effective date" is October 1, 2003.

Moreover, the Measure may never take effect because Congress may disapprove and repeal it, thus making this case moot. And finally, the District's complaint that it must begin to budget now in the absence of a preliminary injunction simply does not rise to the level of irreparable injury. Because there is no irreparable harm, this Court can deny the motion on this ground - it need go no further.

BACKGROUND

In February, 2002, the DC Campaign for Treatment filed an initiative proposing drug treatment instead of incarceration for non-violent drug offenders charged with use or possession offenses. The original initiative included a provision setting up a Treatment Fund into which the D.C. Council could put monies that would be used to carry out the program authorized in the initiative. The D.C. Board of Elections rejected that first initiative on the ground that creating a fund constituted an appropriation of funds in violation of the initiative statute. Accordingly, the DC Campaign removed the funding provision, and resubmitted the initiative. The Board approved that initiative, which became Measure 62.

Measure 62 provides people an opportunity to request drug treatment instead of incarceration if they have been charged with or convicted of certain non-violent drug possession or use offenses.¹ If a court finds an offender eligible for treatment as outline:: inn the Measure, the criminal proceedings against the offender are stayed, the offender is assessed by a treatment professional, and a treatment plan is developed, to be administered under court supervision. If offenders successfully complete treatment, they can avoid conviction and/or sentencing. If, however, offenders violate their treatment plans, they may be removed from treatment, and the criminal proceedings against them may then proceed as if a request for treatment had not been made. The Measure does not require the District to allocate any funds to treatment. Nor does it include any entitlement provision for a cause of action by an offender based on the denial of treatment. The decision whether to fund Measure 62 is left entirely to the Council's discretion.

DISCUSSION

A. The District Will Not Suffer Irreparable Harm If the Board Certifies the Vote.

The District asserts that a "preliminary injunction that prevents the Board from certifying that voters have ratified the Initiative is needed to stop this law from taking effect." Pl. Mot. at 8. But Measure 62 will not take effect when the Board certifies the vote. First, the D.C. Council must send the initiative to Congress. Second, the initiative must survive the 30-day period of congressional review. If Congress disapproves of Measure 62, the matter is at an end, and this court's resources on this issue will have been wasted.

Finally, even if Measure 62 survives the 30-day period of congressional review, the Measure still does not "automatically take effect" as the District argues. Pl. Mot. at 11. As provided in Section 13 of Measure 62, the act does not take effect until the first day of the fiscal year after the fiscal year in which the act is enacted - October 1, 2003. See D.C. Code § 1206.02(c)(1) (an initiated act takes effect upon the expiration of the 30-day period "or upon the date prescribed by such act, whichever is later"). Thus there is no immediate effect triggered by Board certification at all, and certainly not an effect that causes irreparable injury. In short, the District appears to confuse its concern for an expedited schedule with its desire for an injunction, but the former does not require the latter. Without an injunction, the court can still "require the parties to adhere to an accelerated schedule that would allow the court to enter a final judgment months before Oct. 1, 2003, the earliest possible `Effective Date."' Pl. Mot. at 12-13.

The District also fails to demonstrate that certification will cause it any injury. It claims that it must "begin budgeting now" causing "disruption of the District's budget process," see Pl. Mot. at 8, 12, and that such disruption is irreparable harm. Not surprisingly, it offers no factual or legal support whatsoever for this novel argument, since courts find irreparable harm only where movants show that they will suffer severe injury without injunctive relief . See. e.g., District of Columbia v. Eastern Trans-Waste of Maryland, 758 A.2d 1, 15 (D.C. 2000) (upholding Superior Court's finding of irreparable harm based on violation of constitutional rights and threat to movant's "continued existence without an injunction"); District of Columbia v. Grow, 633 A.2d 2, 23 (D.C. 1993) (stating that even loss in profits and being forced to lay off employees does not establish irreparable harm unless the "loss threatens the very existence of the movant's business") (internal quotations and citations omitted).

Even if the Measure required the District to appropriate or allocate or budget funds -- and it does not -- it is difficult to see how beginning to plan or gathering information about how much treatment programs cost could ever constitute irreparable harm.² Moreover, since the Council has complete authority over whether and how much money to allocate, the District may choose not to budget any money. There is simply no evidence that the District must make any changes in its position at all - detrimental or otherwise - resulting from the Board's certification of voting results that would justify the extraordinary relief the District seeks.

This lack of irreparable injury has justified denying injunctive relief in a similar case. In a proper purpose challenge to an initiative relating to shelter, the D.C. Superior Court denied the District's request for an injunction. District of Columbia Board of Elections v. District of Columbia, 520 A.2d 671 (D.C. 1986), overruled on other grounds, 601 A.2d 3 (1991). There, like here, the District sought a declaratory judgment that the initiative was an improper appropriation of funds. And there, like here, the District also sought a preliminary injunction (although there the District brought the action prior to the election). There, the court denied the preliminary injunction because it found no irreparable harm to the District if the initiative continued on through the initiative process. After the initiative was passed, both parties moved for summary judgment on the merits while the initiative was certified to the Board, transmitted to Congress, and allowed to become law by Congressional inaction. a, at 672 n.3. The trial court then ruled on the merits. The same procedure can be followed here, with no harm whatsoever to the District.

Finally, the District's suggestion that unless an injunction is entered, the Board and Intervenors will have little interest in defending the action, and therefore, the District will have a hard time "obtain[ing] a judicial ruling", Pl. Mot. at 12, is simply nonsensical. The Board and the Intervenor are already parties in this action. Certification by the Board does not moot their interest in whether Measure 62 is a proper subject for initiative.

The District has not shown any irreparable injury as a result of the Board fulfilling its statutory duty of certifying the results of an election to the D.C. Council. Because there is no irreparable injury, this court need go no further, and can simply deny the motion for a TRO or a preliminary injunction on this ground alone. See id.

B. Granting Injunctive Relief Will Cause Irreparable Harm To The Protected First Amendment Right to Vote, And Is Not In The Public Interest.

The right to vote "ensures our nation's ability to function as a democracy." Id. By exercising the right to vote, a citizen "intends to send a message in support of or in opposition to the candidate or ballot measure at issue." Id. at 31 (citing Illinois State Bd, of Elections Y. Socialist Work, 440 U.S. 173 184 (1979)). It is well-settled that this message is symbolic speech protected by the First Amendment. So id. at 30-31 (stating that "the results of votes properly cast in a properly conducted ballot referendum are due some level of First Amendment protection"). `Because voters in properly conducted elections intend to send a particularized message which is received by those who act on the results of the elections, voting results can be categorized as protected symbolic speech . . . ." at 30. For these reasons, the Turner court rejected the U.S. government's invitation to interpret a federal statute to prohibit the Board of Elections and Ethics from certifying the results of the votes on an initiative. It held that prohibiting the certification of the votes would violate the First Amendment, and the court was constrained to interpret the statute in a way that did not violate the Constitution. Id. at 34-35.

Here, the vote on Measure 62 was plainly intended "to convey a particularized message" - that the voters support treatment for certain non-violent drug offenders. Id. at 30-31 (citing Texas v. Johnson, 491 U.S. 397, 404 (1989)). Enjoining the Board from certifying the results of the vote on Measure 62 would impermissibly burden the political speech of the voters by denying the vote the full measure of validity that is required under D.C. law. See. e.g., id. at 33, 34 (stating that if results of vote on initiative were not released and certified, "the vote would be a muzzled expression and a meaningless right"). This interference with the right to political speech would cause the voters irreparable harm. See Elrod v. Burns, 427 U.S. 347, 373 (1976 ("The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury."). Thus, the injunction is emphatically not in the public interest, and the District does not seriously argue otherwise. 

C. The Balance of Harms Weighs Against the Injunction.

The District has not shown that the balance of harms favors the injunction. Indeed, the District has shown no harm save the possible need, should it choose to, to start pricing treatment programs. On the other hand, the defendant Board and the DC Campaign for Treatment have invested substantial time and resources in the process leading to the election victory. The Board has an institutional interest in complying with its statutory duties, and in ensuring that the appropriate procedures for initiatives are followed. The DC Campaign has a substantial interest in seeing that its efforts in proposing the Initiative, sponsoring the petition drives which gathered nearly 40,000 voter signatures, conducting public education about the Measure, and encouraging voter participation in the initiative process are not lightly tossed aside, but rather result in the processes of certification and transmittal to Congress contemplated by the initiative law. When weighed against the "harm" that the District claims, the balance of harms strongly favors denying the injunction. 

D. The District Has Not Shown a Substantial Likelihood of Success.

1. Measure 62 Is Not A Law Appropriating Funds.

By contrast, Measure 62 does not allocate funds or limit the Council's discretion to do so. It creates no new revenues or funds, does not make a budget request, and does not dictate how any revenues must be spent. Indeed, it does not require the Council to allocate any funds for any purpose at all. Convention Center Referendum Comm. v. District of Columbia Board of Elections. 441 A.2d 889, 913-14 (D.C. 1989) (en banc). The decision of whether to allocate any funds for treatment remains solely within the Council's discretion. Thus, the District is simply incorrect when it suggests that "the District would have to allocate significant government revenues" to cover the costs of Measure 62. Pl. Mot. at 6. If the Council does not want to allocate any funds in its budget for Measure 62, nothing in Measure 62 requires it to do so. See also Hazel v. U.S., 516 A.2d 944 (D.C. App. 1986) (initiative establishing mandatory minimum sentences was not a law appropriating funds despite fact that it called for more money to be spent because reading it to constitute appropriations would "effectively write the initiative process out of existence."); cf. D.C. Board of Elections v. Joins, 481 A.2d 456 (D.C. App. 1984) (where initiative automatically increased unemployment benefits, initiative did allocate funds since Council had no discretion whether to fund or at what level).

2. Measure 62 Does Not Allocate Funds By Authorizing Judicial Review With Money Judgments.

In sharp contrast, Measure 62 does not include any enforcement provision for a private right of action for treatment, and it does not authorize money damages if someone is denied treatment. Indeed, the only express right it creates is the right not to be incarcerated unless one has been offered and declined treatment or been removed from treatment. Measure 62, §5(f). That right does not constitute an allocation of funds - even if the District does not allocate one penny to treatment, defendants denied treatment are simply entitled not to be incarcerated rather than to a money judgment.

And even if Measure 62 created some right to treatment, it would not constitute an appropriation of funds. It is well-settled that courts are "without power to compel the appropriation of funds." National Association of Regional Councils v. Costle. 184 F.2d 583, 590 (1977) ("unless a court can rely on a statutory authorization, it simply lacks the power to order the obligation of public funds, regardless of how appropriate a remedy that order would be"). Indeed, as the Supreme Court has noted: "Funds may be paid out only on the basis of a judgment based on a substantive right to compensation based on the express terms of a specific statute." Office of Person" Management v. Richmond, 496 U.S. 414, 432 (1990). Since Measure 62 does not authorize such a judgment, a court could not enter such a judgment, and could not thereby appropriate funds.

Treatment under Measure 62 is entirely contingent upon the Council exercising its discretion to allocate funds for treatment in the budget, and upon Congressional approval of the District's budget. Measure 62 therefore does not relate to or interfere with the Council's discretion to allocate funds.

The legislative history of the "laws appropriating funds" language requires this conclusion. Council Chairman Dixon, who introduced the provision, explained that "[t]he electorate can initiate a tax if they want to, but they cannot appropriate that money. They can initiate any measure they want to initiate but they cannot initiate the spending of that money." See Hessey, 601 A.2d at 12. The staff director of the Government Operations Committee agreed that the right of initiative should be construed expansively, so long as an initiative did not purport to allocate funds: "I do believe that an initiative would be appropriate, for example, to call for the construction of an expanded subway system, a school, etc. Funding would then, of course, be dependent upon other legislative routes." Id, at 13 n.23. As the court in Convention Center explained the intent of the Council members who adopted the "laws appropriating funds" language, they distinguished "between the power to authorize a substantive program, which the initiative right would confer on citizens, and the power to authorize expenditures, which the amendment explicitly reserved to the Council and Congress." 441 A.2d at 912, 933. Measure 62 comports with this limitation. It authorizes a treatment program, but does not allocate funds or authorize expenditures for the program. The decision to allocate funds to the treatment measure remains squarely within the Council's discretion.

3. Measure 62 Does Not Allocate Funds by Creating an Office.

Like that initiative, Measure 62 creates an office but does not allocate funds for it. If the Council does not want to allocate funds to the Office of the Ombudsman, it can simply choose not to include it as a budget item. The legislative history of the "law appropriating funds" language fully supports this view. See Hessey, 601 A.2d at 12 (observing that "Councilmember Barry stated that the citizens by initiative could create an Office of Latino Affairs, but could not also fund it"); id. at 13 ("Councilmember Barry's remarks also indicate that he viewed the initiative right compatible with funds being identified in an initiative so long as the final decision about allocating funds was the Council's. . ." The colloquy makes clear that the proponent of the 'laws appropriating funds' limitation contemplated that new sources of revenue could be identified by initiative, but that only the Council could decide how those revenues would be allocated.").

Finally, even if this court were to construe a particular part of Measure 62 as a law appropriating funds, that conclusion need not invalidate the initiative in its entirety. Section 12 of Measure 62 makes all of its provisions severable. Thus, to the extent Court were to find on the merits that part of Measure 62 allocated funds, it is entirely likely that some part of the Measure would still survive.

In short, the District has not carried its burden of demonstrating a substantial likelihood of success on the merits. Measure 62 does not, on its face, allocate or appropriate any funds, or require the District to do so. It does not create or designate funds for monies raised by the Measure, nor does it generate new revenues to fund the program the Measure authorizes. Nor does it create a judicially enforceable right to receive money damages if a person is denied treatment. Rather, the person has the right to not be incarcerated in that circumstance. And finally, creating an office does not allocate funds. For these reasons, Measure 62 does not allocate funds, and it is a proper subject for initiative, so the District's claim will not succeed. 

CONCLUSION

The District of Columbia has not shown and cannot show that allowing the Board to certify the fact that 78% of D.C. voters approved Measure 62 will cause it any harm at all. It certainly has not shown and cannot show the necessary irreparable harm. On that basis alone, this Court can deny the requested relief. In addition, granting the injunction is not in the public interest because it will irreparably harm the First Amendment rights of D.C. voters. The balance of the harms weighs against the injunction, and the District is not substantially likely to prevail on the merits. Thus, the Court should deny the District's motion for preliminary injunctive relief.

THE D.C. CAMPAIGN FOR TREATMENT
BY: Its attorney
Julie M. Carpenter
D.C. Bar # 418768
Jared Freedman
D.C. Bar # 469679
JENNER & BLOCK
601 13th Street, N.W.
Washington, DC 20005
(202) 639-6000
Dated: November 12, 2002

CERTIFICATE OF SERVICE

Bennett Rushkoff
Arthur Parker
Office of the Corporation Counsel
441 4th Street, NW
Suite 450-N
Washington, DC 20001
Fax: (202) 727-6546

Kenneth J. McGhie
Terry Stroud
Office of the General Counsel
DC Board of Elections and Ethics
441 4th Street, NW
Suite 250-N
Washington, DC 20001.
Fax: (202) 628-5952

Julie M. Carpenter

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SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
CIVIL DIVISION

ORDER DENYING PLAINTIFF'S MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

On November 13, 2002, this Court held a hearing on the District's motion. This Court has considered the pleadings of .the .parties and supporting documents attached thereto, and the representations by all parties at the November 13, 2002 hearing on this matter.

1. This Court has subject matter jurisdiction of this case pursuant to D.C. Code § 11921, and personal jurisdiction over the defendant Board.

2. The District has failed to establish that it will suffer any irreparable harm if the Board is allowed to certify the results of the vote on Measure 62, because Measure 62 will not take effect when the vote is certified, and because Measure 62 may never even become effective as law if Congress - exercises.its right. to. disapprove Measure 62. In addition, the District's alleged harm - disruption of its budget process - is not the kind of harm that this Court requires to justify injunctive relief. Because the District has failed to establish irreparable harm, the District's motion must be denied, and this Court need go no further in reaching its decision.

4. In addition, the District has failed to show a likelihood of success on the merits of its case. Because Measure 62 neither allocates funds nor interferes with the Council's discretion to allocate funds, it is not a law appropriating funds in violation of D. C. Code § 1-204.101(a), and therefore is a proper subject for an initiative.

ORDERED: That plaintiff's motion for a temporary restraining order and preliminary injunction is DENIED.

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

Copies to:

Julie M. Carpenter
Jenner & Block
601 13th Street, NW
Suite 1200
Washington, DC 20005

Bennett Rushkoff
Arthur Parker
Office of the Corporation Counsel
441 4th Street, NW
Suite 450-N
Washington, DC 20001

Kenneth J. McGhie
Terry Stroud
Office of the General Counsel
DC Board of Elections and Ethics
441 4th Street, NW
Suite 250-N
Washington, DC 20001

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SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
CIVIL DIVISION

ORDER DENYING PLAINTIFF'S MOTION FOR A TEMPORARY RESTRAINING ORDER

ORDERED: That plaintiff's motion for a temporary restraining order is DENIED; 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 a preliminary injunction.

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

Julie M. Carpenter
Jenner & Block
601 13th Street, NW
Suite 1200
Washington, DC 20005

Bennett Rushkoff
Arthur Parker
Office of the Corporation Counsel
441 4th Street, NW
Suite 450-N 
Washington, DC 20001

Kenneth J. McGhie 
Terry Stroud
Office of the General Counsel
DC Board of Elections and Ethics
441 4th Street, NW
Suite 250-N
Washington, DC 20001

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1. Because a rider to the federal appropriations bill for the District forbade the D.C. government from using any funds to "conduct any ballot initiative which seeks to legalize or otherwise reduce the penalties associated with the possession, use, or distribution of any schedule I substance under the Controlled Substances Act," District of Columbia Appropriations Act, 1999, Publ. L. No. 105-277 §171, 112 State. 2681(1998), and has continued to do so each year in substantially identical language, Measure 62 excludes Schedule I substances from its coverage to insure that it did not run afoul of federal law.

2. Indeed, as the District has pointed out, it already budgets money for drug treatment programs, so it will not have to look far.

3. Although the Council may feel political pressure to fund an initiative passed by nearly 80% of the electorate, that political pressure cannot be said to "force" the Council to allocate funds.

4. Notably, the Taxpayers' Act was ultimately resubmitted as Initiative Measure 51, "The Real Property Assessment and Tax Amendments Act," which the voters approved in November 1996. The initiative became law and created the office of Public Advocate for Assessments and Taxation. No court has ever determined Initiative 51 to be an improper "law appropriating funds."