Convention Center Etc. v. Board of Elections

• Decision Date: 28 February 1979
• Docket Number: No. 79-140.,79-140.
• Citation: 399 A.2d 550
• Parties: CONVENTION CENTER REFERENDUM COMMITTEE et al., Appellants, v. BOARD OF ELECTIONS AND ETHICS et al., Appellees.
• Court: D.C. Court of Appeals

Page 550

399 A.2d 550

CONVENTION CENTER REFERENDUM COMMITTEE et al., Appellants, v. BOARD OF ELECTIONS AND ETHICS et al., Appellees.

No. 79-140.

District of Columbia Court of Appeals.

Argued February 16, 1979.

Decided February 28, 1979.

William B. Schultz, Washington, D.C., for appellants.

Cecily E. Collier, Washington, D.C., for appellee Bd. of Elections and Ethics.

James C. McKay, Jr., Asst. Corp. Counsel, Washington, D.C., with whom Louis P. Robbins, Acting Corp. Counsel, and Richard A. Barton, Deputy Corp. Counsel, Washington, D.C., were on the pleadings, for appellee District of Columbia.

Before GALLAGHER, HARRIS and FERREN, Associate Judges.

GALLAGHER, Associate Judge:

Appellants sought a preliminary injunction to order the Board of Elections and Ethics (the Board) to receive initiative petitions which they had circulated concerning construction of a convention center. The trial court denied the injunction, and while appeal was pending we provisionally ordered the Board to receive the petitions in order to permit appellants to comply with the Charter Amendments' requirement that petitions be received by the Board ninety days before the election in which the initiative is sought to be presented. We here affirm the denial of the preliminary injunction and on this record conclude that the Charter Amendments are not self-executing.¹

The "Initiative, Referendum, and Recall Charter Amendments Act of 1977," D.C. Law 2-46, 24 D.C.Reg. 199 (the Charter Amendments), became effective March 10, 1978.² Section 7 of the Act, as amended by Pub.L. 95-526, § 1(3); 92 Stat. 2023 (1978), provides:

The Council of the District of Columbia shall adopt such acts as are necessary to carry out the purpose of this Amendment within one hundred and eighty (180) days of the effective date of this Amendment. Neither a petition initiating an initiative nor a referendum may be presented to the District of Columbia Board of Elections and Ethics prior to October 1, 1978.

On September 6, 1978, the 180-day period expired without the passage of any such enabling legislation.

In October 1978, appellants, John J. Phelan and the Convention Center Referendum Committee (CCRC), informed the Board of their intention to circulate an initiative proposal that would prevent the Mayor and the City Council from expending any funds for the construction of a convention center. Because the City Council failed to enact enabling legislation, appellants sought the Board's guidance on the form and mode of circulation of the petitions, and requested the Board to promulgate rules to implement the Charter Amendments.

The Board treated the CCRC's request for guidance as a Request for an Advisory Opinion,³ published it in the D.C. Register and invited public comment thereon. On December 15, 1978, the Board adopted its General Counsel's legal opinion that it had no authority to accept initiative petitions in light of the failure of the City Council to enact enabling legislation.

Appellants invoked the Superior Court's jurisdiction under D.C.Code 1978 Supp., § 1-1156(c), to review the Board's advisory opinion. In addition to their request for a preliminary injunction, they sought an order declaring the Charter Amendments to be self-executing and directing the Board to take all steps necessary to place the initiative on the May 1979 ballot. Upon the denial of their request for a preliminary injunction, they appealed to this court, requesting us to reach the merits of the substantive question presented.

Appellants have offered authority for the proposition that constitutional amendments (to which the Charter Amendments are functionally equivalent) are presumptively self-executing. They argue that the detailed nature of the Amendments supports that proposition, and contend that the legislative history indicates the Act's framers were chiefly concerned that the initiative process be available to the electorate by October 1, 1978. To conclude that the Amendments are not self-executing, say appellants, invites the City Council to nullify by inaction the important political rights there conferred.

The Board agrees that, in general, constitutional provisions are presumed to be self-executing, but contends that this has been rebutted by the inclusion in the Charter Amendments of the 180-day requirement for passing further legislation, and by the repeated statements of City Council members, reported in the legislative history, that they intended to pass implementing legislation. Moreover, the Board stresses the potential for fraud, abuse, and confusion caused by the absence of enabling legislation as strong arguments for awaiting the City Council's passage of the "Initiative, Referendum, and Recall Procedures Act of 1979," D.C. Bill 3-2 rather than ordering an initiative election in May 1979.⁴

The trial court did not abuse its discretion by denying the preliminary injunction as, among other things, appellants failed to demonstrate a substantial likelihood that they would succeed on the merits (Wieck v. Sterenbuch, D.C.App., 350 A.2d 384, 387 (1976)).⁵ We will not limit our review to the denial of the injunction, however, because of the unusually strong public interest in the expeditious resolution of this controversy. Since this issue has been fully briefed by the parties, we conclude that no genuine purpose would be served in this exceptional case by awaiting the trial court's judgment on the merits of the complaint there pending. Accordingly, we now turn to the fundamental question of whether the Charter Amendments should be deemed self-executing.

In determining whether constitutional (charter) provisions are self-executing, courts have usually looked to "whether the constitutional intent is to provide a presently effective rule, by means of which the right given may be enjoyed and protected and the duties imposed may be enforced without supplementary legislation." Student Government Association v. Board of Supervisors, 262 La. 849, 264 So.2d 916, 919 (1972). See also Wolverine Golf Club v. Hare, 24 Mich.App. 711, 180 N.W.2d 820, 826 (1970), aff'd, 384 Mich. 461, 185 N.W.2d 392 (1971); Rockefeller v. Hogue, 244 Ark. 1029, 429 S.W.2d 85, 88 (1968); State v. Mills, 91 Ariz. 206, 370 P.2d 946, 947 (1962). Most courts have sought to construe such provisions in accordance with the intent of their framers, Wolverine v. Hare, supra; Maddox v. Hunt, 183 Okl. 465, 83 P.2d 553, 556 (1938).

The text of an enactment is the primary source for determining its drafters' intent. Some courts have found it useful to inquire whether the language of the provision is addressed to the legislature or to the judiciary, Rockefeller v. Hogue, supra; State v. Hall, 35 N.D. 34, 159 N.W. 281, 284 (1916). If directed to the legislature, the provision is not self-executing, as its primary function is to require the legislature to make further law. Because Section 7 of the Charter Amendments speaks in mandatory terms to the City Council concerning enabling legislation, this analysis supports an inference that the Charter Amendments were not intended to be self-executing.

Courts have also examined the amount of detail contained in a constitutional provision for an indication of whether the provision was meant to be operative in the absence of further legislation, Wolverine Golf Club v. Hare, supra; State v. Hall, supra. As expressed in Cooley on Constitutional Limitations 121 (7th ed.):

A constitutional provision may be said to be self-executing if it supplies a sufficient rule, by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced, and it is not self-executing when it merely indicates principles, without laying down rules by means of which those principles may be given the force of law. [Emphasis added.]

While the Charter Amendments⁶ contain some detail, we believe they do not provide sufficient safeguards to insure the integrity of an initiative election.

Our conclusion that the text of the Charter Amendments manifests the drafters' intent to pass further implementing legislation finds support in the legislative history. On March 16, 1977, the City Council's Committee on Government Operations issued its "Committee Report # 1," which recommended the adoption of D.C. Bill 2-2, the Charter Amendments. At page 3, the Report states that "The Board sought a general grant of rule-making authority to carry out the processes if approved by the voters." Since no general grant of rule-making authority is included in the amendments, it is evident that the Council intended to reserve to itself authority over the specific procedures. The Committee Report explains that the bill

allows no initiatives or referenda to be presented until after October 1, 1978, in order to have implementing legislation adopted and funds appropriated for the District of Columbia Board of Elections and Ethics to manage the elections. [Report at 17; emphasis added.]

After the City Council passed the Amendments, Arrington Dixon, then Chairman of the Government Operations Committee, testified before the House Subcommittee on Fiscal and Government Affairs that "the Council[,] pursuant to the language of both amendments . . . must adopt appropriate implementing acts," before the October 1 effective date.⁷

As these excerpts from the legislative history demonstrate, the drafters chose the October 1 date on the assumption that the necessary preparations for administering an initiative election — the passage of implementing legislation and the allocation of monies to the Board — would be completed. That the legislators apparently miscalculated the task of designing implementing procedures, and so failed to pass legislation by September 6, 1978, is no present justification for this court to impose, or to order the Board to develop, initiative procedures.

Had the City Council ignored its legislative mandate under the Charter Amendments, our decision might be different. But...