Dankman v. Dist. of Col. Bd. of Elections, 81-977.

• Decision Date: 13 October 1981
• Docket Number: No. 81-977.,No. 81-978.,81-977.,81-978.
• Parties: Scott DANKMAN, Petitioner, v. DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, Respondent, Arrington Dixon, et al., Intervenors. Arrington DIXON, et al., Petitioners, v. DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, Respondent, Scott Dankman, Intervenor.
• Court: D.C. Court of Appeals

Page 507

443 A.2d 507

Scott DANKMAN, Petitioner, v. DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, Respondent, Arrington Dixon, et al., Intervenors.

Arrington DIXON, et al., Petitioners, v. DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, Respondent, Scott Dankman, Intervenor.

No. 81-977.

No. 81-978.

District of Columbia Court of Appeals.

Argued En Banc October 13, 1981.

Decided October 13, 1981.

H. Richard Mayberry, Jr., Washington, D. C., for petitioner in No. 81-977 and intervenor in No. 81-978.

Matthew S. Watson, Washington, D. C., with whom Barry R. Lenoir and William P. Lightfoot, Landover, Md., were on the briefs, for intervenors in No. 81-977 and petitioners in No. 81-978.

William H. Lewis, Gen. Counsel of the District of Columbia Bd. of Elections and Ethics, Washington, D. C., for respondent.

Judith W. Rogers, Corp. Counsel, Charles L. Reischel, Deputy Corp. Counsel, and David P. Sutton and Elizabeth J. Doverman, Asst. Corp. Counsel, Washington, D. C., were on the brief for the District of Columbia as amicus curiae.

Before NEWMAN, Chief Judge, and KELLY, KERN, NEBEKER, HARRIS, MACK, FERREN, PRYOR, and BELSON, Associate Judges.

PER CURIAM:

On October 13, 1981, we ordered "that the order of the Board [of Elections and Ethics] hereby is set aside and the cause is remanded to the Board with directions to certify, nunc pro tune as of August 3, 1981, Initiative Seven for inclusion on the November 3, 1981, ballot." The order noted that Chief Judge NEWMAN and Associate Judges MACK and PRYOR dissented, and that "[o]pinions will be filed as promptly as the business of the court permits."

The opinion of Associate Judge HARRIS is joined by Associate Judges KELLY, KERN, and NEBEKER, Chief Judge NEWMAN and Associate Judges MACK, FERREN, and PRYOR join in Part II, and Associate Judge BELSON joins in Parts I, II, and III, of Associate Judge HARRIS' opinion.

Chief Judge NEWMAN and Associate Judges MACK, PRYOR, and BELSON join in Part III of the opinion of Associate Judge FERREN. Associate Judge BELSON also joins in Parts II, IV, and V of Associate Judge FERREN's opinion.

The dissenting opinion of Associate Judge MACK is joined by Chief Judge NEWMAN and Associate Judge PRYOR.

HARRIS, Associate Judge:

Before us in these consolidated cases are petitions for review of a decision of the Board of Elections and Ethics ("Board") which rejected certain petitions in support of an initiative for certification on the November 1981 ballot.¹ The initiative which was proposed, entitled the "District of Columbia Greater Educational Opportunities Through Tax Incentives Initiative of 1981" and known in abbreviated fashion as "Initiative Seven," concerned potential tax credits for tuition payments by District of Columbia taxpayers. Petitioner Dankman, the proponent of Initiative Seven, sought reversal of the Board's decision, contending primarily that the Board erroneously interpreted one of its regulations. Intervenors Dixon, et al., were the challengers to Dankman's initiative petitions before the Board.² They advocated affirmance of the Board's order, both for the reason assigned by the Board and on additional grounds which explicitly were rejected by the Board. By our order dated September 18, 1981, a division of the court set aside the Board's order and directed that the Board certify Initiative Seven for inclusion on the November 1981 ballot. On October 5, 1981, the court granted respondent's petition for rehearing en banc and vacated the September 18 order. Immediately following the en banc argument on October 13, we issued another order directing the Board to certify the initiative for placement on the ballot. The initiative was defeated decisively in the November 3 election. This opinion sets forth the reasons for our decision that the electorate was entitled to vote on the issue.

I

A brief overview of the procedure for an initiative is appropriate. The Initiative, Referendum, and Recall Procedures Act of 1979³ ("Initiative Act" or "Act") was enacted to allow the electors of the District of Columbia to propose laws and to present those proposals directly to the voters for approval or disapproval. See D.C.Code 1981, § 1-1302(10). The sponsor of an initiative, known as the proponent, first must submit his proposal to the Board of Elections and Ethics. Upon receipt of the proposed initiative measure, the Board assigns a number to it, prepares a short title and an impartial summary of its purpose, places it in proper legislative form, and certifies that the petition is in final form.⁴ The proponent then has 180 days within which to secure the requisite number of valid signatures to enable the initiative to be placed on the ballot. The petition must be signed by at least five percent of the registered voters in the District of Columbia, and the total signatures submitted must include five percent of the registered voters in at least five of the city's eight wards.

After a signed petition has been submitted, the Board may refuse to accept the petition if it finds that the measure is not a proper subject for an initiative or referendum or that the petition contains any of the irregularities outlined in D.C.Code 1980 Supp., § 1-1116(k)(1)-(7). If the Board accepts the petition, it has 30 days in which to certify whether the number of valid signatures on the petition meets the qualifying distribution and percentage requirements.⁵ The Board must post the petitions for public inspection for ten days, beginning on the third day after the petitions are filed. Within this time period, any voter may challenge the validity of any petition.

Petitioner Dankman was the proponent of Initiative Seven. On February 27, 1981, the proposed measure was submitted to the Board. On March 4, 1981, the Board adopted its short title, summary statement, and legislative form, and certified that the proposed petition was in compliance with the requirements of D.C.Code 1980, Supp., § 1-1116(h) [now D.C.Code 1981, § 1-1320(h)]. The relevant portion of that section provides that:

(1) Before circulating the petition, the proposer shall submit the petition to the Board of Elections and Ethics, for verification that the form of the petition is in compliance with the provisions of this section. * * *

(2) Each petition sheet or sheets for an initiative . . . shall have attached . . . a statement made under penalties of perjury . . . which contains the following:

(A) The printed name of the circulator;

(B) The residence address of the circulator, giving the street and number;

* * * * * *

(E) That the circulator of such initiative or referendum petition sheet is a qualified registered elector of the District of Columbia; and

(F) The dates between which the signatures to the petition were obtained.⁶

The Board-approved initiative then was circulated among District of Columbia citizens by some 19 to 24 circulators. On June 29, 1981, petitioner presented a petition for filing containing 1,711 petition sheets and 27,415 signatures in support of the initiative.⁷ The Board conducted a public hearing on the question of whether the measure presented was a proper subject for initiative. On July 6, the Board advised petitioner that it had, at a special meeting, approved the subject matter of Initiative Seven.⁸ On that date, the Board also accepted the petitions for filing, finding that the petitions complied with the requirements of regularity outlined in D.C.Code 1980 Supp., § 1-1116(k).

The Board then had 30 days within which to ascertain the validity of the submitted signatures and, if their validity were established, to certify the initiative for placement on the ballot. This time period was interrupted, however, by the July 18 filing of two challenges to the petitions.⁹ Intervenor Dixon — joined by Mayor Marion Barry and 34 others — lodged the following objections to the proponent's petitions: (1) the summary statement and the legislative text of the initiative were inconsistent and, therefore, the statement was misleading; (2) the notary public to the petitions, JoAnn Willis, had such an interest in Initiative Seven as to vitiate the signatures of the electors (see note 9, supra); (3) the circulators of the petitions induced citizens to sign the petitions by false and misleading statements; (4) the proposer of Initiative Seven had failed to file a verified statement of contributions pursuant to § 1-1116(k)(1); and (5) some of the circulators were not qualified electors when they circulated the petitions, in violation of § 1-1116(h)(2)(E). Mayor Barry filed a separate challenge to the petitions which the Board later dismissed "because of the failure of any person to appear on his behalf to prosecute the challenge." See note 2, supra.

Following a hearing and the submission of briefs, on August 3 the Board sustained one of intervenors' challenges to the petitions. The Board overruled allegations of other defects assigned by intervenors, but found that the 22,624 signatures obtained by seven of the circulators working on petitioner's behalf were to be rejected because those circulators were not residents of the District of Columbia and, therefore, they could not be qualified electors. See D.C. Code 1980 Supp., § 1-1116(h)(2)(E). The Board concluded that "[t]heir lacking legal status to circulate the petition so tainted this Initiative # 7 and the electoral process that all of the signatures they obtained are rejected." The effect of sustaining intervenors' challenge — which meant the invalidation of the signatures of 22,624 voters — was to block Initiative Seven from appearing on the ballot. Notwithstanding its rejection of the collected signatures (and noting that "the Court could reverse the Board's decision"), on August 5 the Board announced the results of the random statistical sampling which verified the signatures submitted in favor of the initiative. Five of the eight wards met the required number of signatures with greater than 99...