Charlotte Brookins-Hudson, memorandum against term limits, March 26, 2001

OFFICE OF THE GENERAL COUNSEL
COUNCIL OF THE DISTRICT OF COLUMBIA
1350 Pennsylvania Avenue, N.W.
Washington, D.C. 20004

TO: The Honorable Vincent B. Orange, Sr.
Chairman, Committee on Government Operations

QUESTION:

This is in response to your memorandum dated March 12, 2001, in which you asked for a legal opinion on the following questions concerning the Term Limits Initiative of 1995:

SHORT ANSWER:

Sections 402 and 421(c) of the District Charter contain the exclusive qualifications for holding the office of Member of the Council, Chairman of the Council, and Mayor, respectively. The plain language of sections 402 and 421 of the District charter, legislative history of the Home Rule Act, general rules of statutory construction, and a leading U.S. Supreme Court case support the interpretation that limiting the number of consecutive terms which a Member of the Council, Chairman of the Council, or Mayor may serve is a qualification to hold office ("nonincumbency"). Consequently, a charter change would be required to implement this directive. The Council cannot directly amend the Charter except through the Charter referendum process in which a majority of the registered qualified electors ratify a Council act, or an act of Congress ratifying the Council act. HRA §§102 and 303. Because Initiative 49 was not preceded by an act of the Council and a charter referendum, nor has there been an act of Congress on this subject, in my opinion, it was not the proper subject for an initiative. Furthermore, even if it were the proper subject of an initiative, D.C. Law 10-254 is drafted so poorly that it makes enforcement difficult, if not impossible. Therefore, D.C. Law 10254, the Term Limits Initiative of 1995, is not valid to impose limits on the number of consecutive terms served by the Mayor, Council Chairman, or Members of the Council.

With respect to the Board of Education, since the Charter does not establish the qualifications for members of the Board of Education, changes to the qualifications for that office do not require a Charter amendment and may be accomplished by D.C. Law 10-254.

I. BACKGROUND

A. The Council initiated a charter amendment to delegate some of its legislative authority to grant the right of initiative to the people.

Section 601 of the Home Rule Act, approved December 24, 1973 (87 Stat. 813; D.C. Code §1-206) ("HRA") gives Congress the ultimate legislative authority over the District.¹ HRA §302 does, however, vest in the Council broad legislative powers over "all rightful subjects of legislation within the District." D.C. Code § 1-204. This grant of authority is not absolute. In order for the Council to amend the District Charter it is required to follow the procedure set forth in §303 of the Home Rule Act.² Under that procedure an act must be passed by the Council and ratified by a majority of the registered qualified electors of the District and submitted for approval by the Congress, similar to the procedure to amend most state's constitutions. Because the legislative power in the District is established by the Charter, when the Council wanted to grant the right of initiative to the people, it could not merely adopt an act of the Council through the regular legislative process. As a result, the right of initiative was established through the initiation of the first charter amendment referendum authored by the Council.³ The Council adopted Bill 2-2, the "Initiative, Referendum, and Recall Chatter Amendments Act of 1977" on first, amended first, and second readings April 5, 1977, May 3, 1977, and May 17, 1977, respectively. The purpose of the act was to allow the voters of the District of Columbia to enact laws (except laws appropriating funds) directly without legislative action by the Council of the District of Columbia.⁴ Following the signature of the Mayor on June 14, 1977, this legislation was assigned D.C. Act No. 2-46 and submitted to the voters for ratification. After ratification by the voters and approval by the Congress, the legislation became effective on March 10, 1978 as D.C. Law 2-46.

The initiative process allows the electors of the District of Columbia to propose laws (except laws appropriating funds) and present such proposed laws directly to the registered qualified electors of the District of Columbia for their approval or disapproval (D.C. Law 2-46; D.C. Code § 1-281(a)) ("Initiative Act").

B. Initiative 49 Purports to Limit the Mayor, the Chairman of the Council and Members of the Council to two consecutive terms.

Pursuant to the Initiative Act, the District of Columbia Term Limits Initiative ("Initiative 49") was placed on the ballot of the November 8, 1994, General Election. On November 23, 1994, the Board of Elections and Ethics certified that Initiative 49 was approved by the District's registered qualified electors (83,865 in favor and 52,116 opposed). After its approval, the measure was assigned D.C. Act No. 10-402, and subsequently took effect on March 23, 1995, as D.C. Law 10-254.

Due to the means of enactment, there is no real legislative history for the measure. The legislative intent of this particular initiative appears limited to the language on the document's face. Consequently, we must look at the words used in the Initiative to determine the legislative intent. The Initiative's legislative text states its purpose as follows:

Section 3 of the Initiative is the "Statement of law." That section amends the portion of the District of Columbia election law which prescribes the qualifications of candidates to elected offices, other than the office of Mayor, Council Chairman, or Member of the Council.⁵ The proponents of Initiative 49 amended D.C. Code §1-1312(b)(1) [section 8(b)(1) of the Election Code of 1955] to designate the existing text as subparagraph (A) and added two new subparagraphs (B) and (C). The new subparagraph (B) states, in relevant part as follows:

The summary statement of the Initiative provides that "these term limits would apply to terms served after this act takes effect." Based on the current composition of the Council, D.C. Law 10-254, if valid, would prohibit several Councilmembers from seeking reelection in 2004.

C. The Charter establishes the qualifications for the Office of Mayor, Council Chairman, and Member of the Council.

Title IV of the District of Columbia Home Rule Act contains the District's Charter provisions.⁶ Section 421 of the Charter defines the qualifications for any candidate seeking to run for Mayor.⁷ Similarly, the qualifications for Chairman of the Council and Councilmembers are laid out in §402 of the Charter.⁸ These provisions contain the exclusive criteria for these elected offices.

Section 421 (c) also provides that the Mayor shall forfeit his office upon failure to maintain the qualifications required in that subsection. The Council Chairman forfeits that office by failing to maintain the qualifications listed in §403(c) of the Charter. Members of the Council forfeit the office of Councilmember by failing to maintain the qualifications listed in 402 of the Charter. However, these Charter provisions do not bar a person from serving as Mayor, Chairman and member of the Council after that person has served two consecutive terms. Therefore, D.C. Law 10-254, if effective, would add "non-incumbency" as a new qualification for holding the office of the Mayor, Chairman and member of the Council.

The qualifications for members of the Board of Education are established in section 2 of An Act To fix and regulate the salaries of teachers, school officers, and other employees of the Board of Education of the District of Columbia, approved June 20, 1906 (D.C. Code §31-101(b)). That section limits members of the Board of Education to two consecutive terms.

D. The Council has the authority over elections in the District under HRA §752.

Presumably, the proponents of Initiative 49 and the Board of Elections and Ethics construed HRA §752 in a way that permits the Council to alter the qualifications of the office of the Mayor, Council Chairman, and Councilmember, without following the Charter amending process. Because section 752 has never been interpreted by a court, and because there are differing interpretations as to what it means, particularly in relationship to other provisions in the Home Rule Act, this provision is arguably unclear.

Generally, if the language of legislative text is found to be ambiguous, then extrinsic aids to interpretation, such as legislative history and case law may be examined. Blum v. Stenson, 465 U.S. 886, 896 (1984); Singer, 2A Sutherland Statutes and Statutory Construction, §48 .01 at 278 (4th ed. 1984). Assuming arguendo that HRA §752 is ambiguous, its legislative history will be examined.

E. The legislative history of the Home Rule Act provides support that HRA §752 gives the Council power to regulate things that affect the way elections are conducted in the District in ways that do not conflict with the District Charter provisions governing the size and qualifications to hold the office of Mayor, Council Chairman, and Member of the Council.

The legislative history of the Home Rule Act sheds light on the type of power that Congress intended when it gave the Council "authority to enact any act or resolution with respect to matters involving or relating to elections" in HRA § 752. First, Congress included a definition of "election" in the Home Rule Act. Section 103(11) of the Home Rule Act defines "election" as "unless the context otherwise provides, means an election held pursuant to the provisions of this Act [Home Rule Act]". HRA §103 (11); D.C. Code §1-202(11). The dictionary defines "election" as a noun which means "an act or process of electing." Merriam-Webster's Collegiate Dictionary (10th ed. 1998) at 271. This appears to mean the ability to regulate things such as the time, place, manner of the holding of the election itself, not to the eligibility of persons to run in an election. I can find no support for an interpretation that HRA §752 allows the Council to legislate eligibility criteria for persons to run for the office of Council Chairman. Member of the Council, or Mayor in ways that conflict with specific provisions set forth in the District Charter.

This interpretation is supported by the legislative history of the Home Rule Act. Throughout the legislative history, members of both Houses contended that changes in Council membership, including size and qualifications and changes in the qualifications for Mayor should not be amendable by the Council. To the extent that the language in section 752 which authorizes the Council to enact legislation pertaining to elections in the District is considered ambiguous with respect to the ability of the Council to unilaterally expand the qualifications to hold elected office in the District, the legislative history clarifies this ambiguity.

(Emphasis added). Thus, the above cited portions of the legislative history of the Home Rule Act clearly indicates that it was not the intent of Congress to allow the Council to change the size and qualifications for the office of Council or the qualifications for the office of Mayor through regular legislation, which would include initiatives. Consequently, if Congress did not intend to allow the Council to enact legislation to alter the qualifications of the Mayor and councilmembers, as the legislative history indicates, then term limits would not be the proper subject for an initiative, and Initiative 49 may be a violation of the Home Rule Act.¹⁰

II. DISCUSSION

THE QUALIFICATIONS FOR THE MAYOR, COUNCIL CHAIRMAN, AND MEMBER OF THE COUNCIL SET FORTH IN THE CHARTER CANNOT BE AMENDED EXCEPT THROUGH A CHARTER REFERENDUM INITIATED BY ACT OF THE COUNCIL OR AN ACT OF CONGRESS

It is well-established in the District of Columbia that the power of initiative is co-existent with the power of the legislative branch. See note 22 infra. The threshold question then in analyzing whether Initiative 49 was a proper subject matter for an initiative is whether the contents of that initiative could have been enacted by an act of the Council. While the answer to this question may vary, I believe that the better interpretation, based on the plain language of HRA §§103(11), 402, 421, and 752; the legislative history of the Home Rule Act; well established principles of statutory construction; and case law is that the Council could not have adopted term limits for members of the Council and the Mayor as regular legislation.

In order to construe the meaning of a statute, one must first "read and examine the text of the act" itself. Singer, supra, §47.01 at 118. When construing the text of a statute, a statute must be read as a whole and "each part or section should be construed in connection with every other part . . . . " Id. at §46.05, 90. Furthermore, the words of a statute are to be given their plain meaning. Id. at §46.01, 73.¹³ Where the meaning of a statute is plain on its face, resort to the legislative history or other extrinsic aids to assist in its interpretation is not necessary. George Lennon v. United States, 736 A.2d 208, 210 (D.C. 1999) citing to United States v. Young, 376 A.2d 809, 913 (D.C. 1977); see Burgess v. United States, 681 A.2d 1090, 1095 (D.C. 1996); Citizens v. Association of Georgetown v. District of Columbia Board of Zoning Adjustment, 642 A.2d 125, 128 (D.C. 1995) (citations omitted). I believe that the language of HRA §§103(11), 402, 421, and 752 is plain enough to find that Congress intended that qualifications to hold office would be Charter provisions, not subject to change by a regular act of the Council, or by an initiative.

The plain language of HRA §103(11) defines election to mean "an election held pursuant to the provisions of this Act." The plain language of HRA §752 gives the Council "authority to enact any act or resolution with respect to matters involving or relating to elections in the District."

While the local courts have never interpreted HRA §752, given the plain language of section 752, it is not difficult to see that it applies to the process of electing individuals for public office and is not a grant of authority to alter the qualifications of individuals seeking elective office.

This provision may also be interpreted similarly to the grant of authority granted to the states by the Constitution in the Elections Clause.¹⁴ Relevant portions of this provision states:

In United States Term Limits Inc. v. Thornton, 514 U.S. 779, 131 L.Ed. 2d 881, 115 S.Ct. 1842 (1995), an attempt was made to construe this provision broadly to justify term limits which the state of Arkansas attempted to impose on Members of Congress. The Court determined that the intent of the clause was "to grant states authority to create procedural regulations, not to provide states with license to exclude classes of candidates from federal office."¹⁵

If HRA §752 was so interpreted by a court it would mean that the Council can amend the District's election laws, including the laws pertaining to the officers effected by D.C. Law 10254, at any time without the need for a Charter change.

Such an interpretation would also conflict with the plain language of sections 402 and 421 of the District Charter. Those sections specifically state that they contain "qualifications" for holding the office of Council Chairman, Member of the Council, and the Mayor. The heading for section 402 of the District Charter is entitled "Qualifications for Holding Office." It states that:

No person shall hold the office of member of the Council, including the Office of Chairman, unless he (a) is a qualified elector; (b) is domiciled in the District and if he is nominated for election from a particular ward, resides in the ward from which he is nominated; (c) has resided and been domiciled in the District for one year immediately preceding the day on which the general or special election for such office is to be held; and (d) holds no public office (other than his employment in and position as a member of the Council), for which he is compensated in an amount in excess of his actual expenses in connection therewith . . . .A member of the Council shall forfeit his office upon failure to maintain the qualifications required by this section . . . ."

As set forth above, in Subpart I-E, the legislative history of the Home Rule Act clarifies that Congress did not intend to allow the Council to enact regular legislation to alter the qualifications of the Mayor, Council Chairman, and Councilmembers, without following the Charter amending procedure. Since the power of initiative is co-existent with the legislative power of the Council, then the qualified registered electors would not be able to accomplish by initiative what the Council has no legislative authority to do.¹⁶

To interpret HRA §752 broadly to authorize legislative enactments to alter qualifications for persons seeking elective office, would violate several long standing principles of statutory construction. There is a rule of statutory construction that "statutory provisions must be construed together with related provisions and not in isolation." In re Bicksler, 501 A.2d 1, 6 (D.C. 1985). Also, provisions must be read so that no part is inoperative or superfluous, void, or insignificant. Singer, §46.06 at 104; District of Columbia v. Thompson, 592 A.2d 621, 638 (D.C. 1991); District of Columbia v. Acme Reporting Co.., 530 A.2d 708, 713 (D.C. 1987). Moreover, under established canons of statutory construction, absent contrary legislative intent a general statutory provision will not take precedence over a controlling specific statutory provision. See Graham v. Berstein, 527 A.2d 736, 739 (D.C. 1983).

Interpreting HRA §752 to allow amendments to the qualifications to hold office would render the language in §303 of the Home Rule Act (charter amending procedure) meaningless with respect to any provisions in the charter relating to elected officials. What would be the point of having a charter amending procedure if section 752 allows charter changes by regular legislation with respect to elections? If this were the case, Congress would have included an exception to HRA §303 for matters relating to elections.

This broad interpretation would also render section 402 and 421 meaningless. Those sections set out specific criteria for persons to meet in order to be eligible to hold the office of Council Chairman, Member of the Council, or Mayor. An act should never be interpreted to produce such an absurd result. Singer, §46.06 at 104; District of Columbia v. Thompson, 592 A.2d 621, 638 (D.C. 1991); District of Columbia v. Acme Reporting Co., 530 A.2d 708, 713 (D.C. 1987).

In the Home Rule Act, Congress included a specific provision dealing with qualifications to hold office. Section 402 is entitled "Qualifications for Holding Office" and section 421 is entitled "Election, Qualifications, Vacancy and Compensation" for the Mayor. The provisions in HRA §752 may be considered a general provision concerning the holding of elections in the District. As the Court stated in District of Columbia v. Linda Pollin Mem. Hous. Corp., 313 A.2d 579, 583 (D.C. 1974), "[g]eneral and special provisions in a statute should stand together, if possible, and be read together and, if possible, harmonized with a view to giving effect to a consistent legislative policy. Where, however, general provisions, terms, or expressions in one part of a statute are inconsistent with more specific or particular provisions in another part, the particular provisions must govern or control, as a clearer and more definite expression of the legislative will .. . . " Accordingly, applying this principle of statutory construction, HRA § 752 would allow the Council to adopt legislation pertaining to the holding of elections, not the holding of the elected offices at issue. The latter would be governed solely by sections 402 and 421 of the District Charter, which are amendable only through following the charter amending procedures set forth in HRA §303.

Sections 402, 421, and 752 must be read together and read harmoniously to give full effect to each provision. I believe that, after applying the rules of statutory interpretation, the better interpretation is that the qualifications to hold office of Council Chairman, Member of the Council, and Mayor cannot be altered except through a Charter amendment.

A limitation upon the right of one who has held public office to again seek office is typically viewed in two aspects: First, as it bears upon the right of the class of people who have occupied a particular office and, second, as it affects the qualifications of candidates for the office sought.¹⁷ Hence, the issue of term limitations is typically premised on whether or not a legislature may add to the qualifications for office of the elected official in question.

Two of the most recent cases in a line of court decisions which illustrates this principle are United States Term Limits Inc. v. Thornton, 514 U.S. 779, 131 L.Ed. 2d 881, 115 S.Ct. 1842 (1995) and Gerberding v. Munro, 134 Wash.2d 188, 949 P.2d 1366 (1998). The Supreme Court in Thornton invalidated an amendment to the Arkansas constitution which, among other things, prevented any person elected to three or more terms as a member of the United States House of representatives from placing their name on the ballot for election to the United States House of representatives from Arkansas. In declaring the statute unconstitutional, the Court held that the states may not alter or add the qualifications for representatives enumerated in the Constitution. The Court also noted that the Constitution sets forth qualifications for Members of the Senate and the House of Representatives, and neither the Senate, the House nor the states possess the power to add to or alter these qualifications, absent an amendment to the Constitution.

Munro involved the constitutionality of Initiative 573 which prevented individuals who had held state legislative seats or certain state constitutional offices for a prescribed time period from filing a declaration of candidacy and appearing on the ballot for those offices. In holding the statute unconstitutional, the court found that: (1) term limits added "non-incumbency" as a new qualification, which went beyond qualifications set forth in the state constitution; (2) the exclusive list of qualifications in the constitution could only be altered by constitutional amendment; and (3) a statute, whether adopted by the legislature or the people could not add qualifications for state constitutional officers where the state constitution set those qualifications. Applying these holdings to D.C. Law 10-254, in my legal opinion, additional qualifications may not be added to the office of Mayor, Council Chairman, and member of the Council, without following the Charter amending process set forth in § 303 of the Home Rule Act. However, since the qualifications for members of the Board of Education are not established within the Charter, D.C. Law 10-254 may be applied to limit terms of members of the Board of Education.²⁰

The drafting of Initiative 49 is so fatally flawed as to make enforcement of the act impossible. First, the initiative amends the wrong act. To affect the qualifications to hold office of the Mayor and Council, the amendment has to be made to sections 402 and 421 (c) of the District Charter. As explained more fully above, this type of change cannot, as a matter of law, be accomplished through an initiative act.

Secondly, the qualifications to hold office set forth in the local election act that was amended by Initiative 49, is limited to the eligibility to hold elected office other than the Mayor, Council Chairman, and Member of the Council. See note 5, supra. This misplacement of the two consecutive term provision and the lack of legislative history as to the reason for the selection of this law, at best makes the provision ambiguous as to its application, and when considered with the "pursuant to this section" language of that local law, makes it unenforceable. This section of the District of Columbia Elections Code of 1955 (section 8) has nothing to do with the ability to hold office of Mayor or member of the Council.

It is interesting to note that the language of Initiative 49 follows the language in D.C. Code §11312(b)(1)(A) which states that "No person shall hold elected office pursuant to this section unless he or she has been a bona fide resident of the District of Columbia continuously since the beginning of the 90-day period ending on the date of the next election. . ." If members of the Council were considered persons who hold office "pursuant to this section [section 8 of the District of Columbia Elections Code of 1955]" then the election code would directly conflict with the plain language "No person shall hold the office of member of the Council, including the Office of Chairman" and the "No person shall hold the Office of Mayor" as well as the residency requirement set forth in sections 402 and 421 of the District Charter for the Council and the Mayor, respectively.

In my opinion, even, assuming arguendo, that the term limit provisions could have been done through an initiative, before the Board of Elections and Ethics could apply this initiative to any incumbents, a court would have to clarify the meaning of "hold elected office pursuant to this section" contained in Initiative 49.

That D.C. Law 10-254 amends the District's elections law rather than the Charter does not change its basic character, which is an alteration to the qualifications for holding public office.

The court In Re Opinion of The Justices, Del. Supr., 276 A.2d 736(1971), dealt with a bill adopted by a simple majority of both houses of the legislature which established a debt limit for cities with population in excess of 50,000. The Justices first determined that a municipal charter consists of the charter itself plus any statute properly passed after establishment of the charter, even if the charter has not been labeled as a charter amendment. The Justices found that the' original charter, with two subsequent amendments, all of which had received a concurrence of two-thirds of the members of the legislature, resulted in a debt limit being specifically built into the charter. The Justices held, that the latest bill was an attempt to change the charter and as such required a tow-thirds majority vote. Having received only a simple majority vote it was held invalid.²¹

In the instant case, D.C. Law 10-254 amended section 8 of the District of Columbia Election Code of 1955, rather than the qualification provision in the Charter. As such this measure may be viewed as a de facto amendment to the Charter.

While the power of initiative is a great one, it is not limitless. It is well established in the District of Columbia that the power of initiative is co-existent with the power of the legislative branch to enact legislative acts.²²If the Council cannot directly or indirectly amend the Charter, neither can an initiative.

CONCLUSION:

Courts have viewed limits placed on the number of terms which elected officials may serve as qualifications for that elected office. The majority view taken by courts is where the constitution creates an office and sets forth the qualifications of the office, a legislature has no power to vary those qualifications, absent an explicit or implied grant of authority. The District's Charter is the District's constitution. Absent a charter change to the qualifications provisions of section 402 and 421(c), the Council may not by act, nor may the people by initiative provide for additional qualifications for elected offices. Therefore, D.C. Law 10254 is not valid to impose limits on the number of consecutive terms served by the Mayor, Chairman or members of the Council.²³

1. This is based on Article I, § 8, clause 16 of the U.S. Constitution which provides that: "The Congress shall have power . . . . To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular Statutes, and the Acceptance of Congress, become the Seat of Government of the United States. . . ."

2. §1-205. Charter amending procedure.
Statute text
(a) The charter set forth in title IV (including any provision of law amended by such title), except § § 1-221 (a) and 1-241(a), and part C of such title, may be amended by an act passed by the Council and ratified by a majority of the registered qualified electors of the District voting in the referendum held for such ratification. The Chairman of the Council shall submit all such acts to the Speaker of the House of Representatives and the President of the Senate on the day the Board of Elections and Ethics certifies that such act was ratified by a majority of the registered qualified electors voting thereon in such referendum.
(b) An amendment to the charter ratified by the registered electors shall take effect upon the expiration of the 35-calendar-day period (excluding Saturdays, Sundays, holidays, and days on which either House of Congress is not in session) following the date such amendment was submitted to the Congress, or upon the date prescribed by such amendment, whichever is later, unless during such 35-day period, there has been enacted into law a joint resolution, in accordance with the procedures specified in § 1-207, disapproving such amendment. In any case in which any such joint resolution disapproving such an amendment has, within such case in which any such joint resolution disapproving such an amendment has, within such 35-day period, passed both Houses of Congress and has been transmitted to the President, such resolution, upon becoming law subsequent to the expiration of such 35-day period, shall be deemed to have repealed such amendment, as of the date such resolution becomes law. (c) The Board of Elections and Ethics shall prescribe such rules as are necessary with respect to the distribution and signing of petitions and the holding of elections for ratifying amendments to title IV of this Act according to the procedures specified in subsection (a) of this section. (d) The amending procedure provided in this section may not be used to enact any law or affect any law with respect to which the Council may not enact any act, resolution, or rule under the limitations specified in §§ 1-206, 1-233, and 47-313.

3. Last year the Council initiated its second charter referendum amendment - the School Governance Charter Amendment Act of 2000 (Bill 13-469). This charter referendum amendment was ratified by a majority of the electorate - 20,511 in favor and 19,668 opposed.

4. 'The "laws appropriating funds" exception was placed into the initiative statute by the Council to prevent unbudgeted costs from being incurred by the District government as a result of the enactment of an initiative.

5. Those offices are the "office of national committeeman or alternative, or national committeewoman or alternate, and for election as a member of official designated for election at large under paragraph (4) of § 1-1301 [members and officials of local committees of political parties]."

6. Title IV of the Home Rule Act is the District Charter, consequently to distinguish charter provisions this opinion when referring to matters in Title IV of the Home Rule Act will use the phrase "District Charter," but when referring to other matters in the Home Rule Act this opinion will use the phrase "Home Rule Act" or "HRA."

9. Home Rule for the District of Columbia 1973-1974, House Committee on the District of Columbia, 93rd Cong. 2d Sess., Serial No. S-4, December 24, 1973, 2916, 2919.

10. I use the phrase "may be a violation of the Home Rule Act" because only a court can conclusively determine whether the Term Limits Act violates the Home Rule Act. As stated earlier, whether section 752 allows the Council or the people through an initiative to expand the qualifications to hold office of member of the Council or Mayor is an issue of first impression in the District.

11. See, District of Columbia Board of Education Law, approved June 20, 1906 (34 Stat. 316; D.C. Code § 31-101) as amended by the District of Columbia Elected Board of Education Act, approved April 22, 1968 (82 Stat. 102; D.C. Code § 31-101).

12. H.R. Rep. No. 93-482, 93rd Cong., 1st Sess. 35 (1973), Home Rule for the District of Columbia, 1130-1131.

13. A basic tenet of statutory interpretation is that "there is no safer nor better settled canon of interpretation than that when language is clear and unambiguous it must mean what it plainly expresses." Singer, supra, § 46.01, at 73.

18. Buckingham v. State, 42. Del. 405, 35 A.2d 903 (1944); In re Opinion of the Justices, 276 A.2d 646 (Del. 1972).

19. See, McCollum v. Bass, 201 Ga. 537, 40 S.E.2d 650 (1946); Estes v. Jones, 203 Ga. 686, 48 S.E.2d 99 (1948).

2 0. The Council can amend congressional legislation which applies exclusively to the District of Columbia. D.C v. Greater Washington Central Labor Council, AFL-CIO, 442 A.2d I 10, cert. denied, 460 U.S. 1016 (1983). Since the act which prescribes the qualifications to hold office of member of the Board of Education is a congressional act which applies exclusively to the District of Columbia, the Council and thus the people through initiative can amend that act.

21. "Statutes may be amendatory to a city charter by necessary implication, despite the absence any express reference to the Charter therein. The force and effect of a statute determines its nature and character, not labels or the lack thereof." Id. at 741

22. See, Convention Center Referendum Commission v. District of Columbia Board of Elections & Ethics, 441 A.2d 871, 876 (D.C. 1980), aff'd on rehearing, 441 A.2d 889, 907 (D.C. 1981). Hessey v. District of Columbia Board o f Elections & Ethics, 601 A.2d 3, 16 n.27 (D.C. 1991).

23. I understand from the Board of Elections and Ethics that its action in accepting this initiative was based, in part, on an opinion issued by the General Counsel to the D.C. Council. That opinion was occasioned by the Council's consideration of bills in Council Periods 7 and 8 that would have imposed consecutive term limits on the Office of the Mayor. It should be noted that the opinions of the General Counsel, unlike court opinions, have no precedential value and the Council rules provide that they are advisory, and have no binding effect on the Council. Council Rule 263. They are based on the law as it exists at the time of the issuance of the opinion and the facts as presented to the General Counsel. In this case, many years have passed since the issuance of the earlier opinion of the General Counsel. At the time of the issuance of the earlier opinion, case law was nonexistent on the issue of term limits. In the interim, however, case law has evolved on the issue of terms limits, especially on the question of whether consecutive terms are qualifications to hold office. Applying those cases to Initiative 49 has resulted in my reaching a different opinion than the one authored by my predecessor.

Charlotte Brookins-Hudson, General Counsel to the City Council Memorandum on DC Law 10-254, Term Limits Initiative of 1995 March 26, 2001