Convention Etc. v. D.C. Bd. of Elec., Etc., 79-857

• Decision Date: 03 September 1980
• Docket Number: No. 79-858,No. 79-885.,No. 79-857,79-857,79-858,79-885.
• Citation: 441 A.2d 871
• Parties: CONVENTION CENTER REFERENDUM COMMITTEE, et al., Appellants, v. DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, et al., Appellees.
• Court: D.C. Court of Appeals

Page 871

441 A.2d 871

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

No. 79-857

No. 79-858

No. 79-885.

District of Columbia Court of Appeals.

Argued November 28, 1979.

Decided September 3, 1980.

William B. Schultz, Washington, D.C., with whom Diane B. Cohn and Alan B. Morrison, Washington, D.C., were on the brief, for appellants.

William Lewis, Gen. Counsel, Washington, D.C., with whom Cecily Collier, Acting Gen. Counsel at the time the briefs were filed, Washington, D.C., was on the briefs, for appellee Dist. of Columbia Bd. of Elections and Ethics.

James C. McKay, Jr., Asst. Corp. Counsel, Washington, D.C., with whom Judith W. Rogers, Corp. Counsel, Richard A. Barton, Deputy Corp. Counsel at the time the briefs were filed, and David P. Sutton, Acting Deputy Corp. Counsel, Washington, D.C., were on the briefs, for appellee Dist. of Columbia.

James H. Heller, Washington, D.C., with whom Arthur B. Spitzer, Washington, D.C., was on the brief, for amicus curiae Hilda Mason.

Stephen Truitt, Washington, D.C., with whom Deborah A. Calloway, Washington, D.C., was on the brief, for amicus curiae Betty Ann Kane.

Jerry A. Moore, III, Washington, D.C., with whom J. Kirkwood White, Washington, D.C., was on the brief, for amicus curiae Greater Washington Bd. of Trade, et al.

Before NEWMAN, Chief Judge, and GALLAGHER and PRYOR, Associate Judges.

NEWMAN, Chief Judge:

Appellants sought to have an initiative placed on the ballot, pursuant to the Initiative, Referendum and Recall Charter Amendments Act of 1977, D.C. Law 2-46, codified at D.C. Code 1979 Supp., §§ 1-181 to -195 (hereinafter, the Charter Amendments Act), which would prohibit the Mayor and the District of Columbia Council (the Council) from providing any further public funds or incurring any debt for the completion of the Washington Convention Center.¹ The Board of Elections and Ethics (the Board) refused to place the proposed initiative on the ballot on two separate occasions, stating that it was an inappropriate subject for the initiative. Appellants challenged both decisions of the Board in the Superior Court, where summary judgment was awarded in favor of the appellees. Appellants' motions for summary judgment and a preliminary injunction were denied.

Appellants bring these consolidated appeals. While numerous issues have been presented for our consideration, we need only decide whether the petition here in question presents on the one hand, a legislative matter, or on the other hand, an executive or administrative matter; and, if an executive or administrative matter is presented, whether this is a "proper subject for initiative . . . under the terms of title IV of the District of Columbia Self-Government and Governmental Reorganization Act (Pub.L.No. 93-198), as amended . . .", Initiative, Referendum and Recall Procedures Act of 1979, D.C. Act 3-18, 25 D.C. Reg. 9454, 9467 (April 20, 1979), D.C. Law 3-1, 25 D.C. Reg. 10874 (June 22, 1979), amending D.C. Code 1973 and 1978 Supp., §§ 1-1102 et seq. (hereinafter, the Initiative Procedures Act).

In Part I of this opinion we set forth a detailed recitation of the facts and history of these proceedings. In Part II, we discuss the general rule that initiative and referendum provisions are only applicable to acts which are legislative in character, and not to those dealing with executive or administrative matters. In Part III, we analyze the structure of the District government as consisting of three separate, and equal, coordinate branches, each of which has been vested with certain exclusive powers by Act of Congress; find that the power of the electorate through the initiative is coextensive with the legislative, or lawmaking power of the Council; and examine the particularized meaning of the language of the proposed initiative. We conclude that the Board properly rejected appellants' petition as being an improper subject for the initiative, since it presents a matter exclusively of an executive/administrative nature, which under the Charter is the exclusive province of the Mayor. We affirm.

I

The Charter Amendments Act became law on March 10, 1978. The right of initiative, however, was not to be made available until the Council adopted implementing legislation; the Council was directed to complete such legislation by September 6, 1978.

The Council failed to meet the statutory deadline and, when implementing legislation still had not been adopted by October of 1978, the proposed initiative here in question was circulated to the voters in petition form by appellants, the Convention Center Referendum Committee (CCRC); Appellants filed suit in the Superior Court in December 1978, seeking a declaration that the Charter Amendments were self-executing. On February 28, 1979, this court, in Convention Center Referendum Committee v. Board of Elections and Ethics, D.C.App., 399 A.2d 550 (1979), held that the Charter Amendments were not self-executing.

Shortly thereafter, the Council adopted the requisite implementing legislation and, on June 7, 1979, the Initiative Procedures Act came into effect. Three amendments had been made to the original language of the bill. The amendment of particular concern in the case sub judice, the so-called "Dixon" Amendment, provided that the Board must refuse to accept any petition that was not a "proper subject for initiative . . . under title IV of the District of Columbia Self-Government and Governmental Reorganization Act (Pub.L.No. 93-198, 87 Stat. 774 (1973)), codified at D.C. Code 1978 Supp., §§ 1-121 to -171 [the Self-Government, or Home Rule, Act]" or that would "negate or limit an act of the Council . . . pursuant to § 446 of [the Self-Government Act],"² Initiative Procedures Act, § 16(k)(7), at 25 D.C. Reg. 9467, 9468 (April 20, 1979), codified at D.C. Code 1980 Supp., § 1-1116(k)(7).

Appellants submitted their proposed Convention Center Initiative to the Board on June 13, 1979. On July 11, 1979, the Board rejected the petition on the grounds that was an improper subject for the initiative within the terms of the Initiative Procedures Act, § 16(k). Appellants brought suit challenging the decision of the Board. The primary argument concerned the validity of the "Dixon" Amendment. They recognized that Congress had previously appropriated the first $27 million for the Convention Center. D.C. Appropriations Act for FY 1978, Pub.L. 95-288, 92 Stat. 281 (1978), and that the proposed initiative, which sought to prohibit the District from using those funds, was prohibited by the "Dixon" Amendment. However, appellants argued that the "Dixon" Amendment, being mere ordinary legislation, had improperly abrogated rights granted by the Charter Amendments Act. In particular, they contended that, whereas the Charter Amendments withheld use of the initiative with respect to the positive act of "appropriating" funds, it granted the right of initiative with respect to proposals that would bar or limit the expenditure of previously appropriated funds. Appellees, on the other hand, contended that § 16(k)(7) was simply a proper clarification of the meaning of the Charter Amendment.

On July 31, 1979, the trial court, after hearing oral argument rendered its opinion in Convention Center Referendum Committee v. The Board of Elections and Ethics and The District of Columbia, D.C.Super.Ct. (Civ. No. 8368-79, July 31, 1979) (Ugast, J.). Judge Ugast granted appellees' motion for summary judgment, while rejecting appellants' contention that the "Dixon" Amendment was invalid. He noted that, while the definition of "initiative" in the Charter Amendment itself did not explicitly preclude proposals seeking to prohibit the expenditure of funds presently appropriated for capital projects, such an exception was implicit in the structure of the Charter Amendments as a whole. The court stated that the initial Convention Center appropriation request could have been blocked earlier through use of the referendum, which would have suspended the District's budget request before Congress had appropriated the money. Once Congress had acted by authorizing the first installment of funds, the court reasoned, the electorate could no longer use the initiative to stop the District from spending the appropriated monies. The court did suggest, in dictum, that an initiative which sought to prevent the Council from making future appropriations requests might be valid.

Relying on this dictum, appellants made a third submission to the Board, in which they asked that their initiative petition be construed so as only to bar the Council from making future appropriations requests for the Convention Center. On August 3, 1979, the CCRC filed a third suit in the Superior Court, seeking a declaration that their new submission was a proper subject for the initiative, and also seeking a preliminary injunction ordering the Board to immediately begin verifying their petition in order to qualify for the November 6 election. The Board, on August 6, rejected appellants' request that their petition, in its slightly revised form, be interpreted in a manner consistent with the dictum contained in the July 31 opinion of Judge Ugast.

The trial court held a hearing that same afternoon, and rejected the request for a preliminary injunction in Convention Center Referendum v. Board of Elections and Ethics, D.C.Super.Ct. (Civ.No. 9875-79, August 6, 1979) (Ugast, J.) holding that the petition, on its face, sought to prohibit the city from further expending or in any way obligating funds for the Convention Center and that such a broad initiative conflicted with the Charter Amendments Act. These appeals followed.

II

"Although initiative and referendum provisions widely differ in their terminology, it is the general rule that they are applicable only to acts which are legislative in character, and not to those dealing with administrative or executive...