Jackson v. Dist. Of D.C. Bd. Of Elections And Ethics, No. 10-CV-20.

Decision Date15 July 2010
Docket NumberNo. 10-CV-20.
Citation999 A.2d 89
PartiesHarry R. JACKSON, Jr., et al., Appellants,v.DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, Appellee, and District of Columbia, Intervenor-Appellee.
CourtD.C. Court of Appeals

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Austin R. Nimocks, Biloxi, MS, with whom Timothy J. Tracey and Cleta Mitchell, Washington, DC, were on the brief, for appellants.

Rudolph McGann filed a brief for appellee.

Todd S. Kim, Solicitor General for the District of Columbia, with whom Peter J. Nickles, Attorney General for the District of Columbia, Donna M. Murasky, Deputy Solicitor General, and Stacy L. Anderson, Assistant Attorney General, were on the brief, for intervenor-appellee.

D. Jean Veta, Thomas S. Williamson, Jr., Paul A. Ainsworth, Anne Y. Lee, Washington, DC, Richard Anthony Lopez and Jonathan Herczeg, Washington, DC, filed an amicus curiae brief for Trevor S. Blake, II, Jeff Krehely, Amy Hinze-Pifer, Rebecca Hinze-Pifer, Thomas F. Metzger, Vincent N. Micone, III, Reginald Stanley, Rocky Galloway, D.C. Clergy United, Lambda Legal Defense and Education Fund, Inc., and the Campaign for All DC Families, in support of appellees.

Miriam R. Nemetz and Jasmin Sethi, Washington, DC, filed an amicus curiae brief for the American Psychoanalytic Association, the National Association of Social Workers, the National Association of Social Workers, Virginia Chapter, the National Association of Social Workers, District of Columbia Chapter and the National Association of Social Workers, Maryland Chapter, supporting appellees.

Before WASHINGTON, Chief Judge, and RUIZ, REID, GLICKMAN, KRAMER, FISHER, BLACKBURNE-RIGSBY, THOMPSON and OBERLY, Associate Judges.

THOMPSON, Associate Judge:

The specific issue before us in this appeal is whether the District of Columbia Board of Elections and Ethics (the Board) acted lawfully when it rejected appellants' proposed initiative measure on the ground that the measure would authorize, or have the effect of authorizing, discrimination prohibited by the Human Rights Act, and therefore was not a proper subject of initiative. As will be seen, however, the underlying issues are much broader and more fundamental. They concern (1) the allocation of the power to enact laws governing the District of Columbia, within the framework of the District of Columbia Home Rule Act; (2) the broad legislative authority that Congress conferred on the Council of the District of Columbia (“the Council” or “the Home Rule Council), subject to specific enumerated limitations; (3) the deference this court owes to the Council with respect to the meaning of the law that the Council passed to enable the people of the District of Columbia to share in the Council's legislative power through an amendment to the Home Rule Charter, (and, in particular, the deference we owe to the Council's interpretation of the Charter amendments, as reflected in the nearly contemporaneous implementing legislation that the Council passed); (4) the right of the people of the District to legislate through the initiative process, a right that Congress affirmatively approved when it voted to accept the Charter amendment; and (5) the unique importance of the Human Rights Act, the District's comprehensive anti-discrimination law, which the people of the District of Columbia, speaking through their elected representatives, have long intended to have the “highest priority.” Thus, once again, we are called upon “to interpret a unique and complex governmental structure” that is the District of Columbia under Home Rule. Convention Ctr. Referendum Comm. v. District of Columbia Bd. of Elections & Ethics, 441 A.2d 889, 916 (D.C.1981) (en banc) (“ Convention Ctr. III ”).

Appellants' challenge focuses on the validity of Council legislation that requires the Board to refuse to accept any proposed initiative that would authorize, or have the effect of authorizing, discrimination prohibited by the Human Rights Act (a requirement that we refer to herein as the “Human Rights Act safeguard”). Specifically, appellants contend that, in establishing that requirement, the Council overstepped its authority and acted in contravention of the District of Columbia Charter. Alternatively, appellants contend that the proposed initiative would not authorize or have the effect of authorizing prohibited discrimination. We disagree with both contentions, and we therefore affirm the Superior Court's rulings that the Council acted lawfully in imposing the Human Rights Act safeguard and that the Board correctly determined that the safeguard required it to reject the proposed initiative. As we go on to explain, we reach this result because (1) resolution of this appeal turns on what legislative authority the Council intended to share with the people of the District of Columbia when it passed the Charter Amendments Act (the “CAA”); (2) the Human Rights Act safeguard is not inconsistent with the Council's intent as conveyed by the language of the CAA; (3) this court owes substantial deference to the Council's legislative interpretation that the Human Rights Act safeguard carries out the intent of the CAA; (4) the relevant history convinces us that the Council could not have intended to authorize, as a proper subject of initiative, any initiative that would have the effect of authorizing discrimination prohibited by the Human Rights Act; (5) the Home Rule Act gave the Council authority to direct the Board, through the legislation that the Council passed to implement the CAA, to refuse to accept an initiative that would authorize prohibited discrimination; and (6) the Board correctly determined that the proposed initiative would have the effect of authorizing such discrimination. On the last of these points, our court is unanimous.

I. Factual and Procedural Background

On May 5, 2009, the Council passed the Jury and Marriage Amendment Act of 2009 (“JAMA”). D.C. Act 18-70, 56 D.C.Reg. 3797 (May 15, 2009). JAMA amended the District's marriage laws to provide that the District will recognize lawful, same-sex marriages entered into in other jurisdictions. See D.C.Code § 46-405.01 (2009 Supp.).1 JAMA became law on July 7, 2009, after Congress did not disapprove it.

On September 1, 2009, appellants-Harry Jackson, Jr., Robert King, Walter Fauntroy, James Silver, Anthony Evans, Dale Wafer, Melvin Dupree, and Howard Butler-filed with the Board their proposed “Marriage Initiative of 2009,” which is the subject of this appeal. Through the proposed initiative, appellants sought to undo JAMA by amending Title 46, Subtitle I, Chapter 4 of the D.C.Code to state: “Only marriage between a man and a woman is valid or recognized in the District of Columbia.” After a public hearing on October 26, 2009, the Board rejected the proposed initiative, finding that it would “authorize[ ], or ... have the effect of authorizing, discrimination” prohibited under the Human Rights Act and therefore was “not a proper subject of initiative.” D.C.Code § 1-1001.16(b)(1)(C) (2006).2 Appellants sought a writ of mandamus, asking the Superior Court to order the Board to take the necessary steps to certify the initiative to allow it to be placed on the ballot. Appellants also moved for summary judgment. The District of Columbia intervened in support of the Board and moved to dismiss the complaint or, in the alternative, for summary judgment.

In the meantime, the Council adopted the Religious Freedom and Civil Marriage Equality Amendment Act of 2009 (the “Marriage Equality Act) upon its second reading on December 15, 2009. D.C. Act 18-248, 57 D.C.Reg. 27 (Jan. 1, 2010). This legislation, which became effective as D.C. Law 18-110 on March 3, 2010 see 57 D.C.Reg. 1833 (Mar. 5, 2010), expanded the definition of marriage in the District to include same-sex couples: “Any person may enter into a marriage in the District of Columbia with another person, regardless of gender, unless the marriage is expressly prohibited by” District law. D.C.Code § 46-401(a) (Supp.2010); 57 D.C.Reg. 27 (Jan. 1, 2010). Thus, the Marriage Equality Act makes civil marriage available to same-sex couples, just as it does to opposite-sex couples. It also provides that judges of record, the Clerk of the Superior Court of the District of Columbia or such deputy clerks as the Clerk may designate, and “every minister of any religious society approved or ordained according to the ceremonies of his religious society” may celebrate marriages in the District. Id. § 46-406(b). However, it does not require a minister of any religion to celebrate any marriage. Rather, the Council expressed in the preamble to D.C. Act 18-248 its intent to “ensure that no minister of any religious society ... shall be required to solemnize or celebrate any marriage.” 57 D.C.Reg. 27.3 The Mayor signed the Marriage Equality Act, it was transmitted to Congress on January 5, 2010 see 57 D.C.Reg. 1833, and it became law on March 3, 2010.4Id.

By the effective date of the Marriage Equality Act, the Superior Court had ruled on the cross-motions for summary judgment in this litigation. On January 14, 2010, the court granted the District's motion for summary judgment, rejecting appellants' argument that the Human Rights Act safeguard provision is an invalid restriction on the right of initiative and agreeing with the Board that appellants' proposed initiative would authorize discrimination. This appeal followed. We ordered that the appeal be heard en banc and granted motions by amici to file briefs.

II. Legal Framework

An understanding of the powers of the Council under the Home Rule Act, of the District Charter amendment that created the rights of initiative and referendum, and of the nearly contemporaneous legislation that the Council passed, is critical to our resolution of this appeal. Accordingly, we describe these matters in some detail.

A. The Home Rule Act

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