Marijuana Policy Project v. D.C. Board of Elec. and Eth., Civil Action No. 01-2595 (EGS) (D. D.C. 3/28/2002)

Decision Date28 March 2002
Docket NumberCivil Action No. 01-2595 (EGS).
PartiesMARIJUANA POLICY PROJECT, et al., Plaintiffs, v. DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, et al., Defendants.
CourtU.S. District Court — District of Columbia
MEMORANDUM OPINION

EMMET G. SULLIVAN, District Judge.

Plaintiffs in this matter are proponents of a ballot initiative entitled the Medical Marijuana Initiative of 2002 ("Initiative"). The District of Columbia Board of Elections and Ethics ("Board") has refused to certify plaintiffs' proposed ballot initiative because the Board is of the opinion that to do so would violate the Barr Amendment, Pub. L. 107-96, § 127, 115 Stat. 923 (2001). Plaintiffs claim that the Barr Amendment, which prohibits the District of Columbia from expending any monies to enact a law that would decrease the penalties for use or distribution of a Schedule I controlled substance, is unconstitutional as applied to their ballot initiative. They commence this action against the Board and the United States1 and seek injunctive relief.

The Constitution of the United States mandates that the United States Congress shall act as the legislature for the District of Columbia. U.S. Const., Art. I, § 8, cl. 17. Acting in its legislative capacity, Congress, with the approval of the President, has enacted a Home Rule Act that gives the District's citizens some measure of democratic governance. District of Columbia Self-Government and Governmental Reorganization Act ("Home Rule Act"), Pub. L. No. 93-198, 87 Stat. 774 (1973), codified at D.C. Code § 1-201 et seq. (as amended) Consequently, although District citizens do not have the right to vote in Congressional elections, Adams v. Clinton, 90 F. Supp.2d 35, 70 (D.D.C. 2000), aff'd, 531 U.S. 941, S.Ct. 336 (2000), they are able to vote for a non-voting delegate to the House of Representatives, for D.C. City Council members, and for initiatives placed on the ballot by the citizenry. When Congress enacted the Barr Amendment, which constitutes the subject of this lawsuit, it prohibited the District from using any federally appropriated funds to permit the citizens to vote on a ballot initiative that would decrease penalties associated with a Schedule I controlled substance. In short, Congress removed a specific viewpoint from the realm of permissible initiatives on which District citizens may vote to enact legislation.

While Congress has a unique relationship to the District, it is duty-bound to legislate within the limits of the Constitution. The Constitution does not allow Congress to preclear acceptable viewpoints for public debate and expression:

[T]he people in our democracy are entrusted with the responsibility for judging and evaluating the relative merits of conflicting arguments. They may consider, in making their judgment, the source and credibility of the advocate. But if there be any danger that the people cannot evaluate the information and arguments advanced . . ., it is a danger contemplated by the Framers of the First Amendment.

First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 791-92 (1978).

Constitutional precedent of long-standing persuades the Court that the Barr Amendment is a viewpoint discriminatory restriction on plaintiffs' political speech and is consequently unconstitutional. Upon careful consideration of the motions for summary judgment, the responses and replies thereto, oral argument by counsel on February 25, 2002, and the relevant statutory and case law, the Court grants plaintiffs' motion for summary judgment and denies defendant's motion for summary judgment. The enforcement of the Barr Amendment with respect to the plaintiffs and their proposed ballot initiative is permanently enjoined.

I. BACKGROUND

Plaintiffs seek Board approval of a proposed ballot initiative, Medical Marijuana Initiative of 2002, so that they may gather signatures to support the inclusion of the initiative on the ballot at the next general election. Plaintiffs' efforts to promote the Medical Marijuana Initiative implicate issues concerning federal controlled substance law, the District of Columbia's Home Rule Act and the relationship between Congress and the District of Columbia.

A. The Barr Amendment

In the 1998 general election, District of Columbia voters cast ballots for an initiative similar to the one at issue here. The initiative was entitled Medical Marijuana Initiative of 1998 ("Initiative 59") and would have permitted chronically ill individuals to use marijuana without violating the D.C. Code. On September 17, 1998, the Board certified Initiative 59 as a proper subject for the November 3, 1998 election ballot.

Congress responded to the Board's approval of the ballot initiative by enacting what has come to he known as the Barr Amendment, named after its sponsor, Representative Bob Barr. On October 11, 1998, Congress enacted the initial version of the Amendment as part of the District of Columbia Appropriations Act, 1999, Pub. L. No. 105-277, § 171, 112 Stat. 2681 (1998). As originally enacted, the Amendment provided:

None of the funds contained in tithe District of Columbia Appropriations Act] may be used to conduct any ballot initiative which seeks to legalize or otherwise reduce the penalties associated with the possession, use or distribution of any schedule I substance under the Controlled Substances Act . . . or any tetrahydrocannabinols derivative.

Id.

The Board permitted D.C. residents to vote on Initiative 59 because the ballots had been printed prior to the enactment of the Barr Amendment. However, the Board refused to release the election results, fearing that to do so would violate the Barr Amendment

In Turner v. District of Columbia Board of Elections & Ethics, plaintiffs sought a declaration that the Barr Amendment as applied to Initiative 59 was unconstitutional. 77 F. Supp.2d 25, 26 (D.D.C. 1999) (Roberts, J.). The United States intervened to assert the constitutionality of the amendment. Id. Relying on the plain meaning of the statute, the court avoided the constitutional question, and ruled as a matter of statutory interpretation that the Barr Amendment did not preclude the Board from counting, announcing or certifying the results of that election. Id. at 26-28. Nevertheless, the court expressed serious doubts that the amendment would survive constitutional scrutiny if it were construed to prevent the certification of vote results. Id. at 28-34. Accordingly, the Turner court ordered the Board to announce the results of Initiative 59, which disclosed that 69 percent of District voters had supported the ballot initiative.

While the Turner litigation was pending, Representative Bob Barr introduced a revised version of his amendment to be included in the District of Columbia Appropriations Act for the 2000 fiscal year. The revised version was voted out of committee on July 22, 1999, see H.R. Rep. No. 106-249, at 94 (1999), and was the subject of a debate on the House floor a week later, see 145 Cong. Rec. H6638-42 (July 29, 1999). President Clinton vetoed the original version of the D.C. Appropriations Act for fiscal year 2001, in part due to the inclusion of the revised Barr Amendment. 145 Cong. Rec. H8941-42, H. Doc. No. 106-153 (September 28, 1999) (veto message of Pres. Clinton). The D.C. Appropriations Act was returned to the House, where there was once again debate on the House floor with respect to the scope and purpose of the Barr Amendment. See, e.g., 145 Cong. Rec. H10086 (October 14, 1999) (Rep. Barr stated "We sure as heck are not going to make it legal to do drugs in the District of Columbia. That, Mr. Speaker, is precisely what the District of Columbia wants to do.")

A revised version of the Barr Amendment was included in the final District appropriations law for fiscal year 2000. As enacted, it stated:

(a) None of the funds contained in this Act may be used to enact or carry out any law, rule, or regulation to legalize or otherwise reduce penalties associated with the possession, use, or distribution of any schedule I substance under the Controlled Substances Act . . . or any tetrahydrocannabinols derivative.

(b) The Legalization of Marijuana for Medical Treatment Initiative of 1998, also known as Initiative 59, approved by the electors of the District of Columbia on November 3, 1998, shall not take effect.

Pub. L. 106-113, § 167, 113 Stat. 1530 (1999) (emphasis added) Identical language was included in both the District of Columbia Appropriations Act for fiscal year 2001, see Pub. L. 106-522, § 143, 114 Stat. 2471 (2000), and fiscal year 2002, see Pub. L. 107-96, § 127, 115 Stat. 923 (2001). The Barr Amendment for fiscal year 2002 is presently in effect.

B. Procedural History

On July 25, 2001, the Marijuana Policy Project filed forms with the District of Columbia Board of Elections and Ethics ("Board") in order to commence a ballot initiative entitled "Medical Marijuana Initiative of 2002." The proposed initiative would amend District of Columbia law to allow individuals suffering from "debilitating medical conditions" to obtain and use marijuana for medical purposes if they have the "approval" of a licensed physician and adhere to the "limitations and safeguards" established by the measure. Under the proposed initiative, doctors could not be punished pursuant to District of Columbia law for recommending the use of marijuana for medical purposes. Medical patients and their primary caregivers would similarly be excluded from the enforcement of District laws punishing the use of marijuana if they obtained marijuana for medical purposes upon the recommendation of a doctor. The proposed initiative does not purport to modify existing federal criminal law governing controlled substances.

The processing of Medical Marijuana Initiative of 2002 would require the Board to use funds contained in the D.C. Appropriations Act to enact or carry out any law to legalize or otherwise reduce penalties associated with the...

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