JACKSON v. BD. OF ELEC. AND

iative . . . under the terms of title IV of the District of Columbia Home Rule Act [the District Charter]. . . ." D.C. Code § 1-1001.16(b)(1). These were genuine implementing steps. But the Council went further and inserted a restriction on the subject matter an initiative could address-a limitation not found in the Charter or in the Home Rule Act.

For example, the supporters of an initiative "shall file with the Board 5 printed or typewritten copies of the full text of the measure, a summary statement of not more than 100 words, and a short title of the [proposed initiative]. . . ." D.C. Code § 1-1001.16(a)(1). If the Board accepts the initiative or referendum measure, "[w]ithin 20 calendar days, of [such acceptance]," it must, among other things, "[p]repare, in the proper legislative form, the proposed [measure]." D.C. Code § 1-1001.16(c)(3). "After preparation, the Board shall adopt the summary statement, short title, and legislative form at a public meeting and shall within 5 days, notify the proposer of the measure of the exact language. In addition, the Board, within 5 days of adoption, shall submit the [same information] to the District of Columbia Register for publication." D.C. Code § 1-1001.16(d).

Reacting to understandable concerns that the rights of initiative and referendum could be misused by the majority to discriminate against minorities, the Council instructed the Board (in the IPA) to refuse to accept a measure if it "authorizes, or would have the effect of authorizing, discrimination prohibited under Chapter of Title 2 [the Human Rights Act.]" D.C. Code § 1-1001.16(b)(1)(C). But the legitimacy of this concern does not mean that the Council had the authority to restrict a right established in the Charter. In light of the current litigation, it is striking that, while the IPA was under consideration, both the Corporation Counsel and the legislature's own General Counsel warned that the Council did not have the power to impose this limitation on the right of initiative. The Office of Corporation Counsel explained, for example, that

Both the Office of Corporation Counsel and the General Counsel of the Council of the District of Columbia issued cautionary advice on more than one occasion while the IPA was under consideration. For example, commenting in the spring of 1978, Corporation Counsel stated: "Additional restrictions in the subjects subject to initiative which are not in the Charter Amendment could not be made pursuant to an act of the Council, but only through the Charter Amendment procedure." Memorandum from Louis P. Robbins, Principal Deputy Corporation Counsel, to Judith W. Rogers, Special Assistant for Legislation, 6 H 2 (May 2, 1978); 3 Op. C.C.D.C. 60, 65 (1978). The General Counsel stated that in contrast to all the other limitations on the right of initiative, which were "procedural in quality" and provided for a "ministerial review process . . . consistent with the function of an implementing act[,]" the antidiscrimination provision "engrafts . . . a new requirement not in the Charter amendment. . . ." Memorandum from Edward B. Webb, Jr., General Counsel, to Council Members, 2 (June 7, 1978) (attaching the supplemental memorandum from Corporation Counsel). The General Counsel opined that "[c]learly, this is an indirect attempt to further amend the Charter and is, therefore, legally without effect." Id.

[t]he merits of the policy embodied by this restriction on the voters' rights is beside the point. Any substantive restrictions on the rights of the voters granted by Charter Amendment No. 1 are contrary to that Amendment and, hence, are void and of no effect. Such legislation may only be accomplished by the Charter Amending Procedure or by Act of Congress.

Supplemental Memorandum from Louis P. Robbins, Principal Deputy Corporation Counsel, Office of the Corporation Counsel, to Judith W. Rogers, Special Assistant for Legislation, 2 (June 2, 1978); 3 Op. C.C.D.C. 102, 103 (1978).^fn14

The majority brushes aside these "doubts expressed by lawyers," emphasizing that "the elected representatives of the people — the Council and the Mayor — thought otherwise." (Majority Opinion at 31, 32) But this is a question of legal or "constitutional" authority, not a matter of political judgment.

We perceive no principled basis for deferring to the Council's interpretation of the Home Rule Act, apart from the merits of the Council's argument. Although "the interpretation of its powers by any branch is due great respect from the others[,] . . . `[i]t is emphatically the province and duty of the judicial department to say what the law is.'" United States v. Nixon, 418 U.S. 683, 703, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) (quoting Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1803)).

District of Columbia v. Washington Home Ownership Council, Inc., 415 A.2d at 1351 n. 5.

The Corporation Counsel gave sound advice in 1978. The rights of initiative, referendum, and recall had become part of the Charter, which cannot be amended except by Act of Congress or by going through the Charter Amendment process. The "necessary to carry out" language in the Charter Amendments Act did not give the Council power to enact legislation inconsistent with the Charter Amendments. Price v. District of Columbia Board of Elections and Ethics, 645 A.2d 594, 598-99 (D.C. 1994) (citing Convention Center HI, 441 A.2d at 915). "[Legislation implementing the Charter Amendments is valid only if it does not conflict with the Charter Amendments." Id. "Nor could the Council amend the Charter Amendments by enacting the IPA since, as the Self-Government Act clearly provides, the Charter may be amended only as provided in D.C. Code § l-205(a) (1992) [now codified as D.C. Code § l-203.03(a) (2001)]." Price, 645 A.2d at 599.

VI. Appellees' Arguments A. Should We Abstain?

Invoking the Supreme Court's decision in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), the District urges us to abstain from deciding this case. It argues, among other things, that the Council's inclusion of anti-discrimination provisions in the Initiative, Referendum and Recall Procedures Act of 1979 has "functioned successfully" over the past decades and now forms part of a statutory scheme upon which the government and the public rely. This argument surely overstates the case. Although the Human Rights Act limitation on the right of initiative has existed for more than thirty years, this is the first challenge to its validity. More importantly, Baker makes plain that "[t]he courts cannot reject as `no law suit' a bona fide controversy as to whether some action denominated `political' exceeds constitutional authority[,]" 369 U.S. at 217, 82 S.Ct. 691, which is precisely what is at issue here.

In Hessey III we held that a proposed initiative would not violate the HRA. Hessey v. Burden, 615 A.2d 562, 579 (D.C. 1992) ( Hessey III). Apparently none of the parties challenged the validity of the HRA limitation on the right of initiative. In Committee for Voluntary Prayer v. Wimberly, 704 A.2d 1199 (D.C. 1997), opponents of a voluntary prayer initiative argued that it violated the HRA as well as the constitution. We did not consider whether the initiative violated the HRA because we affirmed the trial court's holding that the initiative was "patently, obviously, and unquestionably unconstitutional." Id. at 1201, 1203. More importantly, there is no indication that either party challenged the validity of the HRA limitation. "When instances which actually involve the question are rare, or have not in fact occurred, the weight of the mere presence of acts on the statute book for a considerable time, as showing general acquiescence in the legislative assertion of a questioned power, is minimized." Myers v. United States, 272 U.S. 52, 171, 47 S.Ct. 21, 71 L.Ed. 160 (1926).

By conducting this review of the Council's action, we are not, as the District of Columbia asserts, expressing a lack of the respect due a coordinate branch of government. To the contrary, we proceed cautiously, recognizing "the need to `balance deference to the legislative authority of the Council, with our own duty to oversee Council action which might exceed congressionally delegated authority.'" Atchison v. District of Columbia, 585 A.2d 150, 156 (D.C. 1991) (quoting American Federation of Government Employees v. Barry, 459 A.2d 1045, 1050 (D.C. 1983)).

We frequently have had to decide the scope of the Council's authority under the Home Rule Act. Compare Washington Home, 415 A.2d 1349 (Council had no authority to pass another substantially identical emergency act in response to same emergency) with United States v. Alston, 580 A.2d 587 (D.C. 1990) (after period of congressional review was doubled for certain types of legislation, Council had authority to pass successive, substantially identical emergency acts to preserve the status quo while identical legislation enacted by the Council after two readings was pending before Congress for review); see also Umana v. Swidler Berlin, Chartered, 669 A.2d 717, 724 n. 15 (D.C. 1995) (Home Rule Act does not "limit the Council's authority to enact or to alter the substantive law to be applied by the courts"); Capitol Hill Restoration Society, Inc. v. Moore, 410 A.2d 184 (D.C. 1979) (Council's grant of appellate court jurisdiction in certain noncontested cases impermissibly altered this court's jurisdiction.). Furthermore, we have often considered the proper scope of the right of initiative, and we have rejected an "argument that adoption of the initiative right by the Council, Mayor, and electorate violated the District's Charter." Stevenson v. District of Columbia Board of Elections and Ethics, 683 A.2d 1371, 1375 (D.C. 1996). We also have addressed the validity of a separate portion of the IPA. See Price, 645 A.2d at 600 (concluding that a portion of the IPA conflicted with the Charter Amendments). The District does not satisfactorily explain why this case is so different that we must, or even may, abstain from deciding it.

B. Unique Insight?

The District also points out that most of the same Councilmembers who passed the Charter Amendments Act approved the Initiative, Referendum and Recall Procedures Act of 1979. It argues that, "although the second Council could not change the Charter through ordinary legislation, its unique insight into what the CAA meant gave its interpretation through the IPA presumptive validity." However, the cases on which the District relies do not support this proposition. Moreover, we have seen no indication that the Councilmembers who enacted the IPA (thereby imposing the Human Rights Act limitation on the right of initiative) thought they were interpreting the CAA or purported to rely on insiders' knowledge of its purpose. Nor did they profess unique understanding of what the "necessary to carry out" language meant.

The District and the majority focus single-mindedly on the supposed intent of the Council in drafting and "interpreting" the CAA. See, e.g., ante at 160 ("what the Council did in enacting the IPA provides an authoritative interpretation of the intent and meaning of the CAA"). Tellingly, however, they point to no evidence that the voters of the District or members of Congress (all indispensable partners in amending the Charter) thought they were delegating to the Council an undefined power to limit the right of initiative in any way the Council thought necessary.

"Since amendments to the Charter required Congressional approval when the initiative right was approved by Congress, D.C. Code § 1-1320 (1991 Repl.), the court must consider Congressional intent in approving the amendment. Because the Charter amendment is in the form of an act passed by the Council, and because the Charter Amendment on the right of initiative included authority for the Council to adopt implementing legislation, the court must address the intent of the Council." Hessey II, 601 A.2d at 7.

The District misplaces its reliance on Eldred v. Ashcroft, 537 U.S. 186, 123 S.Ct. 769, 154 L.Ed.2d 683 (2003), where the Supreme Court noted that it "has repeatedly laid down the principle that a contemporaneous legislative exposition of the Constitution when the founders of our Government and framers of our Constitution were actively participating in public affairs, acquiesced in for a long term of years, fixes the construction to be given [the Constitution's] provisions." Id. at 213, 123 S.Ct. 769 (quoting Myers v. United States, 272 U.S. 52, 175, 47 S.Ct. 21, 71 L.Ed. 160 (1926)). This case is not comparable to Eldred, where the Court relied upon "Congress' unbroken practice since the founding generation. . . ." 537 U.S. at 213-14, 123 S.Ct. 769. "History reveal[ed] an unbroken congressional practice of granting to authors of works with existing copyrights the benefit of term extensions so that all under copyright protection will be governed evenhandedly under the same regime." Id. at 200, 123 S.Ct. 769. The Court explained: "Such consistent congressional practice is entitled to very great weight, and when it is remembered that the rights thus established have not been disputed during a period of [over two] centur[ies], it is almost conclusive." Id. at 213, 123 S.Ct. 769 (internal quotations and citation omitted).

By contrast to Eldred, the provision at issue here has been in existence for about thirty years (as opposed to over two hundred). More importantly, the District has not pointed us to, nor can we find, any "routine application" or "consistent legislative practice" that has been followed by the Council or approved by the voters or Congress. The most that can be said is that the Human Rights Act limitation has gone unchallenged for more than thirty years. The Myers decision, on which Eldred relied, makes clear that the legislature may not unilaterally determine the extent of its authority:

No inference of approval may fairly be drawn from the failure of Congress to disapprove the IPA, which contained the Human Rights Act limitation on the right of initiative. See Springer v. Government of the Philippine Islands, 277 U.S. 189, 209, 48 S.Ct. 480, 72 L.Ed. 845 (1928) ("The inference of an approval by Congress from its mere failure to act at best rests upon a weak foundation. And we think, where the inference is sought to be applied, as here, to a case where the legislation is clearly void as in contravention of the Organic Act, it cannot reasonably be indulged."); Clayton v. People of the Territory of Utah, 132 U.S. 632, 642, 10 S.Ct. 190, 33 L.Ed. 455 (1890) ("At all events, it can hardly be admitted, as a general proposition, that, under the power of congress reserved in the organic acts of the territories to annul the acts of their legislatures, the absence of any action by congress is to be construed to be a recognition of the power of the legislature to pass laws in conflict with the act of congress under which they were created."). But see majority opinion at note 45.

In the use of Congressional legislation to support or change a particular construction of the Constitution by acquiescence, its weight for the purpose must depend not only upon the nature of the question, but also upon the attitude of the executive and judicial branches of the Government, as well as upon the number of instances in the execution of the law in which opportunity for objection in the courts or elsewhere is afforded. When instances which actually involve the question are rare, or have not in fact occurred, the weight of the mere presence of acts on the statute book for a considerable time, as showing general acquiescence . . ., is minimized.

272 U.S. at 170-71, 47 S.Ct. 21. It was a crucial factor in Myers that "the decision of the First Congress on a question of primary importance in the organization of the government . . . was soon accepted as a final decision of the question by all branches of the government." Id. at 136, 47 S.Ct. 21. Nothing comparable has happened here, and we therefore are not persuaded by the District's argument relying on Eldred and Myers.

C. The Council's Rationale

When one focuses on the subject matter restriction imposed by the IPA, an obvious question arises: Why didn't the Council simply add the Human Rights Act limitation to its draft of the Charter Amendments Act? No satisfactory answer has emerged from the legislative history of the CAA. However, the history of the IPA strongly suggests that the "Human Rights Act limitation" was an afterthought, a concern brought to the Council's attention after the Charter had been amended. D.C. Council, Report on Bul No. 2-317 at 5 (May 3, 1978) ("Subsequent to the public hearing [on the IPA], the Committee staff received myriad telephone calls in support of an amendment to the enabling legislation which would restrict consideration of initiative measures which foster discrimination. Such an amendment was adopted by the Committee in reporting this measure."). When imposing this limitation on subject matter, the members of the Council did not suggest that the CAA had empowered them to do so. Rather, they invoked authority outside the CAA-the Supreme Court's decision in Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967), and the Council's own statutory authority over elections. D.C. Council, Report on Bill No. 2-317 at 11 (May 3, 1978). Neither rationale gave the Council authority to amend the Charter.

The Council approved the original version of the Charter Amendments Act before it passed the Human Rights Act. The Mayor signed the Human Rights Act on September 28, 1977. 24 D.C.Reg. 6038 (Jan. 27, 1978). However, the Council amended the Charter Amendments Act four weeks later, before it was presented to the voters on November 8, 1977. H.R. Rep. No. 95-890, at 2.

1. Reitman v. Mulkey

Reitman considered a provision of the California Constitution that had been initiated by the voters, but the Supreme Court's holding is no more a check on the right of initiative than it is on acts passed by a legislature. So far as the decision discloses, it was irrelevant that the provision was adopted by initiative.

According to the California Supreme Court, that initiative (Proposition 14) was designed "to overturn state laws that bore on the right of private sellers and lessors to discriminate" and "to forestall future state action that might circumscribe this right." 387 U.S. at 374, 87 S.Ct. 1627. When enacted, it became Art. I, § 26, of the California Constitution, but the state Supreme Court held that it "was invalid as denying the equal protection of the laws guaranteed by the Fourteenth Amendment." Id. at 373, 87 S.Ct. 1627. Affirming, the Supreme Court of the United States accepted the California court's conclusion "that § 26 would and did have wider impact than a mere repeal of existing statutes. . . . The right to discriminate, including the right to discriminate on racial grounds, was now embodied in the State's basic charter, immune from legislative, executive, or judicial regulation at any level of the state government." Id. at 376-77, 87 S.Ct. 1627. "The California Supreme Court believes that the section will significantly encourage and involve the State in private discriminations[,]" and the Supreme Court of the United States concluded that it had "been presented with no persuasive considerations indicating that these judgments should be overturned." Id. at 381, 87 S.Ct. 1627.

Art. I, § 26, provided:

Neither the State nor any subdivision or agency thereof shall deny, limit or abridge, directly or indirectly, the right of any person, who is willing or desires to sell, lease or rent any part or all of his real property, to decline to sell, lease or rent such property to such person or persons as he, in his absolute discretion, chooses.

387 U.S. at 371, 87 S.Ct. 1627. The real property covered by § 26 was limited to residential property. Id. The section did not apply to state-owned real estate. Id.

Of especial interest here, the Supreme Court of California had rejected an effort to keep the proposition off the ballot, reasoning "that it would be more appropriate to pass on those questions after the election . . . than to interfere with the power of the people to propose laws and amendments to the Constitution and to adopt or reject the same at the polls." Mulkey v. Reitman 64 Cal.2d 529, 50 Cal.Rptr. 881, 413 P.2d 825, 829 (1966) (quoting the court's previous order). Moreover, the provision was struck down because it violated the federal Constitution, not because it was deemed inconsistent with a state law. Reitman clearly does not stand for the proposition that one act of the Council (here, the IP A) can place another act of the Council (even one prohibiting discrimination) off-limits to the initiative process.

2. Section 752

The Council also invoked, and appellees now rely upon, D.C. Code § 1-207.52 (2006) ("Section 752" of the Home Rule Act), which grants the Council "authority to enact any act or resolution with respect to matters involving or relating to elections in the District." We emphasize, however, what we have said before — "nothing in Section 752 . . . grants the Council authority to amend the Charter" Price, 645 A.2d at 599.

At the time Section 752 was enacted, the right of initiative did not exist. It therefore is far from clear that Congress would have thought that the phrase "matters involving or relating to elections in the District" encompassed initiatives. More fundamentally, given that Section 752 predates by five years the creation of the right of initiative, it is implausible that Congress intended Section 752 to confer upon the Council power to exclude whole subject areas from consideration by the electorate.

In any event, if Section 752 is as broad as appellees assert, why was the Charter Amendments Act necessary? Why didn't the Council simply use its power over elections to create the rights of initiative, referendum, and recall? One obvious answer is that, even if an initiative is an election, it is much more — it is an exercise of legislative power. The Charter provided that "the legislative power granted to the District by [the Home Rule Act] is vested in and shall be exercised by the Council in accordance with this chapter." D.C. Code § 1-204.04. Allowing the voters to exercise legislative power amounted to a further delegation of Congress's authority. Creating that right thus required a Charter Amendment.

If a Charter amendment was necessary to create the right of initiative, an amendment is equally necessary to limit that right. See Price, 645 A.2d at 599. And by restricting the subject matter which an initiative may address, the Human Rights Act limitation unmistakably alters (and reduces) the right of initiative. The Council's authority relating to elections, found in Section 752, did not (and cannot) authorize a restriction amounting to an amendment of the Charter.

If the logic of the majority's argument were followed, one wonders if the Council, using its power under Section 752, could instruct the Board of Elections to refuse to accept petitions from certain classes of candidates running for election to the Council — even though they met the qualifications for holding office established in the District Charter?

Finally, appellees have offered no satisfactory answer to the following question: If the Council's powers are as broad as they assert, what is to preclude the Council from imposing additional subject matter limitations on the right of initiative or, indeed, from extinguishing that right altogether? It appears that a candid answer to that question would be "nothing." Yet, under our "constitutional" principles, a Charter right may not be limited or extinguished by ordinary legislation. That may be done only by going through the intentionally-cumbersome process of amending the Charter.

D. Inappropriate for Direct Democracy?

The District also argues that it is a mistake to read the CAA literally, as establishing a right of initiative "coextensive" with the legislative power of the Council except for one express limitation — "laws appropriating funds." It asserts that "the most reasonable conclusion is that the CAA was intended to authorize the electorate to vote on topics generally, but not those inappropriate for direct democracy." We have found no support whatsoever for this proposition in the CAA's text or its legislative history.

Although the District concludes that the "Human Rights Act limitation" was wisely imposed, "consistently with our fundamental political traditions[,]" it offers little guidance on how one determines which topics are "inappropriate for direct democracy." If this is to be the standard, it is impossible to predict how large this newly hypothesized exception to the right of initiative may grow in the future.

Even if we assume that the people at large are more likely to discriminate against minorities than are their elected representatives, appellees forget that there are numerous checks and balances in place here to protect against the tyranny of the majority. Appellants' proposal may be defeated at the polls. If the initiative passes, Congress may disapprove it. See D.C. Code § 1-204.105 (2006). Moreover, the Council will have the opportunity to amend or repeal the measure if it becomes law. See Atchison v. District of Columbia, 585 A.2d at 155 ("[T]he plenary legislative power given the Council includes the authority to repeal existing legislation, whether or not derived from an initiative."). And the courts will strike down any measure that is unconstitutional. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803). In short, in the District of Columbia, the right of initiative is not an example of unchecked democracy. It exists, rather, in conjunction with a republican form of government based on the principle of separation of powers.

* * *

It should be clear that no one on this court doubts the importance of the Human Rights Act. Non-discrimination, tolerance, acceptance, and inclusion are all fundamental values to be fostered in a pluralistic society. But these aspirations are best achieved through a system of laws, and it is vital that the institutions of the District government observe the limits placed upon them by the Home Rule Act and the Charter. It is "our . . . duty to oversee Council action which might exceed congressionally delegated authority.'" Atchison, 585 A.2d at 156. The Council of the District of Columbia exceeded its authority when it imposed the "Human Rights Act limitation" on the right of initiative. We respectfully dissent.