Hessey v. Burden, 90-679.

• Decision Date: 08 November 1990
• Docket Number: No. 90-679.,90-679.
• Citation: 584 A.2d 1
• Parties: Jay HESSEY, Appellant, v. Valerie K. BURDEN, and District of Columbia Board of Elections and Ethics, Appellees, James Durham, Kenneth Price, The Apartment and Office Building Association of Washington, D.C., and The Washington, D.C. Association of Realtors, Inc., Intervenors.
• Court: D.C. Court of Appeals

584 A.2d 1

Jay HESSEY, Appellant, v. Valerie K. BURDEN, and District of Columbia Board of Elections and Ethics, Appellees James Durham, Kenneth Price, The Apartment and Office Building Association of Washington, D.C., and The Washington, D.C. Association of Realtors, Inc., Intervenors.

No. 90-679.

District of Columbia Court of Appeals.

Argued September 13, 1990.

Decided November 8, 1990.

Katherine A. Meyer, with whom Carol R. Golubock, Washington, D.C., was on the brief, for appellant.

William H. Lewis, with whom Alice P. McCrory, Washington, D.C., was on the brief, for appellee District of Columbia Bd. of Elections and Ethics.

Vincent Mark J. Policy, Washington, D.C., for intervenor-appellees James Durham, Kenneth Price, the Apartment and Office Building Ass'n of Washington, D.C., and the Washington, D.C. Ass'n of Realtors, Inc.

Before ROGERS, Chief Judge, and BELSON and FARRELL, Associate Judges.

FARRELL, Associate Judge:

D.C.Code § 1-1320(b)(1) (1987) provides that upon receipt of a proposed initiative for submission to the electors, the District of Columbia Board of Elections and Ethics (the Board) "shall refuse to accept the measure if the Board finds that it is not a proper subject of initiative ... under the terms of title IV of the District of Columbia Self-Government and Governmental Reorganization Act...."¹ In this case the Board refused to accept a proposed initiative that, in relevant part, would create an Office of Public Advocate for Assessments and Taxation (OPA) with authority to appear and advocate "on behalf of the interest of the public and the taxpayers in general of the District" in administrative tax assessment proceedings before the Board of Equalization and Review (BER), and to appeal tax assessments by the Mayor to the Superior Court and this court, either on its own or by intervention in appeals by others.

The Board concluded that the proposed initiative violated title IV of the Home Rule Act in two respects. First, creation of the OPA with the specified powers would contravene the Mayor's authority under § 448(5) of title IV, D.C.Code § 47-310(a)(5) (1990), which provides that the Mayor shall "supervise and be responsible for the assessment of all property subject to assessment and special assessments within the corporate limits of the District for taxation...." Second, investing the OPA with power to appeal assessments by the Mayor would expand the jurisdiction of the Tax Division of the Superior Court and of this court, in violation of § 602(a)(4) of title IV, D.C.Code § 1-233(a)(4); that section prohibits the Council of the District of Columbia —and thereby the electorate through the initiative² —from "enacting any act, resolution, or rule with respect to any provision of title 11 of the District of Columbia Code (relating to organization and jurisdiction of the District of Columbia courts)." For both of these reasons, the Board determined that the proposed measure was not "a proper subject of initiative ... under the terms of title IV...." Appellant sought relief in Superior Court, D.C.Code § 1-1320(b)(3), and that court sustained the Board's decision apparently on both grounds (the court issued no opinion).

Unpersuaded by either reason for refusing to place the initiative before the electorate, we reverse.

I.

As described above, the proposed initiative would create the OPA and invest it with, among other things, the authority:

To appear before or to intervene in proceedings before the Board of Equalization and Review, the Superior Court and the Court of Appeals on behalf of the interest of the public and the taxpayers in general of the District and to demand a hearing pursuant to section 47-825(e) and/or (i) or under any other provision of law in any matter or proceeding in which the public advocate may deem the public interest involved, including but not limited to proceedings with respect to:

(i) The valuation, assessment, or classification of any property, or

(ii) The appeal of an assessment of property and/or the tax pertaining thereto.

In rejecting the initiative on the basis of this provision,³ the Board reasoned that the Mayor's authority under the Charter to "supervise or be responsible for" the assessment of property subject to taxation "cannot be exercised if a subordinate to the Mayor may institute litigation before the BER and the courts." Contrary to the Mayor's authority, "this proposed measure would require the Mayor to submit to the demands of the OPA (a subordinate) at the administrative level and permit that same subordinate to challenge the Mayor's final assessment in the courts." In the Board's view, "the functions contemplated by the OPA could be created, but only through the charter amending process.⁴ Not even the Council of the District of Columbia, under our system of government, would have the authority by legislation to superimpose the OPA function on the Mayor."

We hold that the trial court erred in agreeing with the Board that the measure impermissibly infringes on the Mayor's responsibility for assessment of taxable property. We are required to construe the right of initiative liberally, Convention Center, supra note 2, 441 A.2d at 913, and may impose on the right "only those limitations expressed in the law or `clearly and compellingly' implied." Id. (quoting the "well-considered" opinion of the Texas Supreme Court in Glass v. Smith, 150 Tex. 632, 244 S.W.2d 645 (1951)); see also id. at 924 (Gallagher, J., dissenting) (the "charter grants of authority for the exercise of the initiative and referendum are to be liberally construed"; "being reservations of the power to the people, the court should strive to effectuate ... their purpose"). Examination of the proposed measure in relation to the Mayor's statutory responsibility for tax assessments leads us to conclude that the initiative would not contravene that authority.

Under existing law, the Mayor's powers in regard to taxation are broad but not unlimited. As stated earlier, the Charter directs the Mayor broadly to "supervise and be responsible for the assessment of all property subject to assessment and special assessments...." With respect to real property, this authority was given specific content by the District of Columbia Real Property Tax Revision Act of 1974⁵ in which, as this court explained in District of Columbia v. Catholic Univ. of America, 397 A.2d 915, 919 (D.C.1979), "Congress placed broad powers of assessment, notification, rate establishment and collection with the Mayor and the Council" (emphasis added). In keeping with the Charter, the Act provided that the Mayor "shall assess all real property ... and administer and collect the real property tax within the District." D.C.Code § 47-821(a).⁶ Property assessments are to be made by assessors appointed by the Mayor, subject to "regulations concerning the assessment and reassessment of real property" adopted by the Council. §§ 47-821(b),-820(c). The assessed value of real property means "the estimated market value of such property" as determined by objective factors enumerated (non-exclusively) in § 47-820(a). The Act further established the BER, whose members are appointed by the Mayor with the advice and consent of the Council. § 47-825(a).

On or before March 1 of each year, the Mayor compiles the "preliminary assessment roll" containing a list of all real property and the estimated market value of each such property. § 47-823(a). After taxpayers are notified of the assessed value of their property, the preliminary assessment roll is submitted to the BER which, "pursuant to applicable provisions of law, regulations adopted by the Council, or orders of the Mayor, ... shall attempt to assure that all real property is assessed at the estimated market value." § 47-825(f). Taxpayers may challenge proposed assessments before the BER, and "based on the record of complaints or of other information available to or solicited by the Board, the Board shall raise or lower the estimated market value of any real property" on specified conditions, "and shall revise the assessment roll accordingly." Id. The revised assessment is then presented to the Mayor, who "shall make such further revisions to the assessment roll as are required under other applicable provisions of law, and shall approve such assessment roll...." § 47-825(g) (emphasis added). The approved assessment roll "shall constitute the basis of assessment for the forthcoming fiscal year," subject to the right of "persons aggrieved by any assessment, classification, equalization, or valuation" to seek judicial review. §§ 47-825(g), (i).

From this description, it is evident that the Mayor's authority over tax assessments is broad but circumscribed. Through his or her delegate, the Mayor conducts the preliminary assessments in conformity with regulations adopted by the Council and the statutory definition of assessed value. The preliminary assessment roll is submitted to the BER which, again in keeping with applicable laws and regulations and guided by the basic aim "to assure that all real property is assessed at the estimated market value," prepares the revised assessment roll which the Mayor "shall approve," subject to further revisions required by law. The Board emphasized the BER's role as "an executive agency under the Mayor which, together with the Department of Finance and Revenue, assists the Mayor in the final determination of the assessment roll." While that is so, it is also apparent that the Mayor's authority is restrained by the semi-independent role of the BER in the assessment process, as well as by the Council's authority to regulate that process. And the outcome is subject to an aggrieved person's additional right of judicial review.

It is against this background that the proposed role of the OPA must be examined to decide whether it impermissibly limits the Mayor's authority. As appellant correctly points out, the OPA would have no role to play...