Hessey v. Burden
| Decision Date | 27 October 1992 |
| Docket Number | 92-CV-172.,No. 92-CV-126,92-CV-126 |
| Citation | 615 A.2d 562 |
| Parties | Jay HESSEY, Appellant, v. Valerie K. BURDEN, Chairperson, District of Columbia Board of Elections and Ethics, et al., Appellees, James Durham, et al., Intervenors. Kenneth PRICE, et al., Appellants, v. DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, Appellee, Jay Hessey, Intervenor. |
| Court | D.C. Court of Appeals |
Carol R. Golubock, with whom Katherine A. Meyer, Washington, D.C., was on the brief, for appellant in No. 92-126 and intervenor in No. 92-172.
Vincent Mark J. Policy, Washington, D.C., for intervenors in No. 92-126 and appellants in No. 92-172.
William H. Lewis, with whom Alice P. Miller, Washington, D.C., was on the brief, for appellees.
Before TERRY, FARRELL and WAGNER, Associate Judges.
This case comes before this court for a second time on the question of whether the proposed Taxpayers' Right to Know Act qualifies as a "proper subject of initiative" under D.C.Code § 1-1320(b) (1992). In Hessey v. Burden, 584 A.2d 1 (D.C.1990) ("Hessey I"), we considered two challenges to the proposed initiative—the only two that were before us—and reversed a trial court decision sustaining those challenges. Now, after further proceedings, the case is here once again. On this second appeal we must first untangle the procedural knots in which the parties, including the Board, have ensnared this case. We then turn to questions of standing and ripeness. Finally, after considering the merits, we hold that the trial court erred in ruling that the proposed Taxpayers' Right to Know Act is not a proper subject of initiative. We therefore reverse in part the trial court's decision in No. 92-126, and we remand No. 92-172 to the trial court for an evaluation of whether the Board of Elections' summary statement, short title, and legislative form are proper.
If enacted, the proposed Taxpayers' Right to Know Act ("the Taxpayers' Act") would create a new Office of Public Advocate for Assessments and Taxation (OPA). The OPA would have the authority to appear and advocate on behalf of the public interest in tax assessment proceedings before the Board of Equalization and Review (BER) and in challenges to BER determinations before the Superior Court and this court. The initiative would also require that all meetings of the BER, including individual appeals of property tax assessments, be open to the public, and it would guarantee public access to all documents presented at such meetings. In addition, the initiative would provide:
Any taxpayer may, on behalf of the general public of the District, appeal to the BER the assessment of any real property except Class 1 property, Class 2 property, or Class 3 property, or may intervene in any appeal brought by the owner of that property.
Mr. Hessey filed his initiative proposal1 with the Board of Elections and Ethics ("the Board") on January 22, 1990. Several individual commercial property owners, the Apartment and Office Building Association of Metropolitan Washington, and the Washington Association of Realtors (collectively "the opponents") promptly filed objections to the proposed Taxpayers' Act, arguing that it was not a "proper subject of initiative" under D.C.Code § 1-1320(b)(1).2 The opponents advanced seven grounds before the Board for rejecting the initiative. The Board held a hearing, and on March 7, 1990, it ruled that the Taxpayers' Act was not a proper subject. In its order the Board relied on two of the grounds presented by the opponents,3 but it expressly refused to rule on the other five.
Mr. Hessey then brought an action in the Superior Court, seeking a writ in the nature of mandamus to compel the Board to accept the proposed Taxpayers' Act.4 The opponents filed a motion to intervene in the Superior Court proceedings, which was granted. Mr. Hessey then filed a motion for summary judgment, and the Board filed a cross-motion for summary judgment, in which the opponents joined. After a hearing, the court granted the Board's motion and denied Mr. Hessey's motion.
Mr. Hessey appealed, and in Hessey I this court reversed the decision of the Superior Court, holding that the two grounds relied upon by the Board and the trial court in rejecting the initiative were insufficient to make the proposed measure an improper subject under D.C.Code § 1-1320(b)(1). Our opinion stated simply that the judgment of the trial court was "reversed." Hessey I, supra, 584 A.2d at 8. The opponents filed a timely petition for rehearing en banc, thereby staying issuance of our mandate. See D.C.Ct.App.R. 41(a).
Shortly after the opinion in Hessey I was issued, the Board, without waiting for a ruling on the petition for rehearing en banc, prepared a short title and summary statement of the proposed initiative pursuant to D.C.Code § 1-1320(c). The opponents then filed in the Superior Court a separate action against the Board challenging the short title and summary statement, in accordance with D.C.Code § 1-1320(e).5 In their complaint, filed under the name of Price v. Board of Elections, the opponents sought "review" of the Board's latest action, as well as "injunctive, declaratory, and other relief." They argued that the Board had acted ultra vires in issuing the short title and summary statement because this court's mandate had been automatically stayed by the pending petition for rehearing en banc. See D.C.Ct.App.R. 41(a). The opponents also asserted that the Board should have rejected the initiative because it violated the constitutional guarantees of due process and equal protection, because it would result in an unconstitutional taking of private property, because it proposed a regulation rather than a "law," because it authorized unlawful discrimination in violation of the District of Columbia Human Rights Act, and because it would negate or limit a budget act of the Council. These were the same five grounds which they had previously argued before the Board, but which the Board had expressly declined to consider when it had first ruled on the proposed initiative. Finally, the opponents alleged that the summary statement was inaccurate and biased. The Board filed an answer to the complaint in Price, and Mr. Hessey, after being granted leave to intervene, filed a motion to dismiss the complaint, or in the alternative for summary judgment.
The trial court then stayed further proceedings in Price because this court had not yet ruled on the petition for rehearing en banc in Hessey I. Mr. Hessey thereupon filed with this court an emergency motion in Hessey I for issuance of the mandate. On October 15, 1991, this court granted Mr. Hessey's motion, denied the petition for rehearing en banc, and issued the mandate.
Two weeks later, on October 29, the opponents filed in the trial court a "Motion for Further Proceedings on Plaintiff Hessey's Motion for Summary Judgment And On Intervenor Defendants' Further Bases for Rejecting Mr. Hessey's Initiative in Hessey v. Burden." They asserted that this court in Hessey I had ruled on only the two grounds upon which the Board had rejected the proposed initiative, and that there had never been a ruling on any of the other five challenges which they had originally presented to the Board. The Board opposed this motion on the ground that the opponents had no standing to reopen the case for additional findings. Mr. Hessey also opposed the opponents' motion to reopen, arguing that this court's ruling in Hessey I that the proposed initiative represented a proper subject was the law of the case. He also maintained that there was no longer any controversy between the Board and himself which would justify the reopening of the original case (Hessey v. Burden).
The trial court consolidated the two cases and, after a hearing, entered an order on November 21, 1991, concluding that further proceedings in Hessey v. Burden were necessary under D.C.Code § 1-1320(b)(3) because this court in Hessey I had decided only the two issues presented to it. After further briefing and argument, the court issued a memorandum opinion on January 28, 1992, holding that the section of the proposed initiative which would allow any taxpayer to appeal the assessment of any Class 4 or Class 5 property (but not the assessment of any Class 1, 2, or 3 property) was impermissible under D.C.Code § 1-1320(b)(1) because, if enacted, it would result in a denial of equal protection of the laws.6 The court rejected the opponents' other arguments. Mr. Hessey and the opponents both appeal from the January 28 order.7
Buried deep in the turgid prose of D.C.Code § 1-1320 are both the standard by which the Board of Elections determines a proposed initiative measure to be a proper subject and the statutory grant of standing to the proponents of a Board-rejected initiative to seek judicial review of the Board's decision. The Board, as the body that takes the first step in the process by which initiatives are reviewed, must apply both the procedural and substantive provisions of section 1-1320(b). Our first task here is to give the Board, and future proponents and opponents of initiatives, some guidance on the procedural requirements of this densely written statute.
A review of what happened in the instant case illustrates well the inefficiency with which section 1-1320(b) has thus far been applied. Although the Board was faced in the earliest stages of this protracted dispute with seven challenges to the proposed initiative, it considered only two of those challenges when it ruled that the Taxpayers' Act was not a "proper subject" under section 1-1320(b). As a result of this partial ruling, the other five challenges made by the opponents were left in limbo while the Board's grounds for rejection of the initiative were considered by the Superior Court and...
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Hessey v. Burden, 92-CV-126
...615 A.2d 562Jay HESSEY, Appellant, v.Valerie K. BURDEN, Chairperson, District of ColumbiaBoard of Elections and Ethics, et al., Appellees, James Durham, et al., Intervenors.Kenneth PRICE, et al., Appellants, v.DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, Appellee, Jay Hessey, Interve......