Convention, Etc. v. Dist. of Columbia, Etc.
| Decision Date | 08 October 1981 |
| Docket Number | No. 79-858,No. 79-885.,No. 79-857,79-857,79-858,79-885. |
| Citation | 441 A.2d 889 |
| 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 |
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.
ON REHEARING
Before NEWMAN, Chief Judge, and KELLY, KERN, NEBEKER, HARRIS, MACK, FERREN, and PRYOR, Associate Judges, and GALLAGHER,* Associate Judge, Retired.
This case presents questions of exceptional importance concerning both the legislative powers of the District of Columbia Council and the related right of the electorate to adopt legislation by initiative. We conclude that the initiative submitted to the Board of Elections and Ethics (the Board) by the Convention Center Referendum Committee (CCRC) to bar construction and operation of a convention center meets the threshold requirement of the Charter Amendments, D.C.Code 1980 Supp., § 1-181(a), that an initiative propose a "law." The right of initiative, however, does not extend to all legislation the Council could enact. We further conclude that the CCRC initiative is barred by the Charter Amendments exception precluding initiatives for "laws appropriating funds," id. — an exception reflected in the "Dixon Amendment," id. § 1-1116(k)(7), to the Initiative, Referendum, and Recall Procedures Act, id. §§ 1-1116 to -1119.3 (Initiative Procedures Act). Accordingly, we must affirm.
For guidance, we offer a summary of our analysis. Part II, History of the Case, describes CCRC's efforts to use the recently authorized right of initiative to halt the Convention Center project. In Part III, we address the question whether the CCRC initiative proposes a "law" and thus lies within the general scope of the initiative right granted by the Charter Amendments, D.C.Code 1980 Supp., § 1-181(a).
In particular, in Part III.A., The Scope of the Initiative Power, we confirm the principle that, unless the statute defining the initiative right provides otherwise, the power of the electorate to enact a "law" by "initiative" is congruent with the right of the legislature (here, the Council) to adopt "legislative" measures. Next, in Part III.B., The Scope of the CCRC Initiative — as a prerequisite to determining whether the initiative here is wholly legislative in character — we analyze specifically what the electorate would accomplish. We conclude that the initiative would (1) repeal the substantive authorization for construction and operation of the Convention Center, see D.C.Code 1973, § 9-220(a); id. 1980 Supp., §§ 9-601 to -610, and (2) prohibit the expenditure of funds appropriated for construction and operation of the Center, as well as bar future budget requests for such appropriations. In Part III.C., The Powers of the Council, we conclude that in accordance with its powers under the Home Rule Act1 (), the Council could adopt legislation having the same effect as the CCRC initiative. Finally, in Part III.D., A Legislative Act — in response to a central argument by the District of Columbia and the concurring opinion of Chief Judge NEWMAN — we explain why such action by the Council is a legislative act and would not impinge on executive functions. Accordingly, because the District Council properly could adopt legislation with the same effect as the CCRC initiative and would not thereby infringe upon the executive functions of the Mayor, we conclude in Part III that The CCRC Initiative Proposes a "Law."
In contrast with the Council, however, the electorate, by way of initiative, cannot enact every kind of law. In Part IV we conclude that the Charter Amendments exception to the initiative right precluding "laws appropriating funds," D.C.Code 1980 Supp., § 1-181(a), bars the CCRC initiative. Specifically, in Part IV.A., "Laws Appropriating Funds," we conclude that this exception prohibits initiatives that either would fund a project or — as is true of CCRC's initiative — would bar the expenditure of funds already requested or appropriated for a project. Concomitantly, the exception does not bar initiatives that would authorize (but not fund) a new project, repeal authorization for a project (but not rescind its current funding), or prohibit future budget requests. In Part IV.B., The "Dixon Amendment," we conclude that the Initiative Procedures Act properly reflects the "laws appropriating funds" exception to the initiative right, and thus properly requires the Board and the courts to withhold from the ballot an initiative, such as CCRC's, that proposes such a law.
In summary, because the CCRC initiative would not merely have a prospective effect, but would stop the expenditure of appropriated funds, it is beyond the scope of the initiative right. It cannot reach the ballot.
The Convention Center project first reached official status when the Mayor proposed, and the Council included in a budget amendment act for Fiscal Year 1978, a request to Congress for an initial capital outlay of $27 million for an estimated $98.7 million project.2 The Council had not passed, in support of this request, a substantive law specifically authorizing construction of the Convention Center; it apparently had relied solely on the general authorization for capital construction in D.C.Code 1973, § 9-220(a).3 Congress appropriated the $27 million in June 1978.4
In the meantime, the Charter Amendments Act granting District electors the rights of initiative, referendum, and recall had become effective on March 10, 1978. See D.C.Code 1980 Supp., §§ 1-181 to -195.5 That Act required the Council to pass implementing legislation by September 6, 1978. See id. § 1-187. The Council failed to meet this deadline. Convention Center Referendum Committee v. Board of Elections & Ethics, D.C.App., 399 A.2d 550, 551 (1979) (Convention Center I).
Nonetheless, in an effort to halt the movement toward a Convention Center, CCRC submitted its first initiative to the Board of Elections and Ethics in October 1978. See id. The Board refused to accept the bill in the absence of implementing legislation. Id. CCRC filed suit in Superior Court in December 1978, seeking a declaration that the Charter Amendments are self-executing. Id. On February 28, 1979, this court held that they are not. See id. at 552-53.
On June 7, 1979, the Council's implementing legislation, the Initiative Procedures Act, went into effect. That Act exempted CCRC from certain procedural requirements, in order to allow CCRC to proceed without having to collect new signatures in support of its initiative. See D.C.Code 1980 Supp., § 1-1119.2. The Act also included the "Dixon Amendment," which provided that the Board must refuse to accept any measure that is not a "proper subject for initiative" because (among other reasons) "the petition...
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