Dankman v. District of Columbia Board of Elections & Ethics

Petitioner, DANKMAN, Scott

v. BOARD OF

DISTRICT OF COLUMBIA ETHICS, AND

ELECTIONS

Respondent,

Arrington Dixon, al., et Intervenors. Petitioners, DIXON,

Arrington

DISTRICT BOARD OF OF COLUMBIA ETHICS, AND

ELECTIONS

Respondent, Dankman, Intervenor.

Scott 81-977,

Nos. 81-978. Appeals. Court of Columbia En

Argued Banc Oct. 13, 1981.

Decided Oct. D. Jr., Washington, Mayberry,

H. Richard and interve- C., 81-977 petitioner for No. nor in No. 81-978. C., Washington, D. Watson,

Matthew S. P. William R. and Barry Lenoir with whom Landover, Md., were on Lightfoot, and briefs, in No. for intervenors 81-978. in No. petitioners Lewis, Counsel Gen. William H. and of Elections Bd. of Columbia District C., respondent. Ethics, D. Washington, Counsel, Corp. Charles Rogers, Judith W. Counsel, Corp. Reischel, Deputy L. J. Dover- and Elizabeth P. David Sutton Counsel, D. Washington, man, Corp. Asst. C., the brief were on amicus curiae. Columbia NEWMAN, Judge, Chief Before NEBEKER, HARRIS, KERN, KELLY, PRYOR, BELSON, FERREN, MACK, Judges. Associate PER CURIAM: “that 13,1981, we ordered October On of the Board Elections Ethics] order [of hereby proponent Seven, set aside of Initiative sought cause remand- ed certify, decision, to the Board with directions to reversal of contending pro August 3, nunc tunc as Initia- primarily that the Board erroneously inter- tive Seven inclusion on the November preted regulations. one Intervenors order ballot.” The noted that Chief Dixon, challengers to Dank- Judge Judges and NEWMAN Associate petitions man’s initiative before the Board.2 dissented, MACK and and PRYOR that They advocated affirmance of “[o]pinions will be promptly filed as as the order, both for the assigned by reason permits.” business court grounds Board and on ex- additional which

plicitly rejected by By Board. our September order dated a division opinion The of Associate Judge HARRIS of the court set aside the Board’s order and joined by KELLY, Associate Judges directed certify Initiative KERN, NEBEKER, and Judge Chief NEW- Seven for inclusion on the November 1981 MACK, MAN Judges and Associate FER- 5,1981, grant- ballot. On October the court REN, join II, and PRYOR in Part ed respondent’s petition rehearing for en Judge Associate joins I, BELSON Parts banc September and vacated the 18 order. II, III, of Associate Judge HARRIS’ Immediately following the en argu- banc opinion. ment on October we issued another or- Judge Chief NEWMAN and Associate der directing the Board to certify the initia- MACK, PRYOR, Judges join and BELSON tive placement for on the ballot. ini- The in Part III of opinion of Associate tiative decisively was defeated in the No- Judge Judge FERREN. Associate BEL- vember 3 election. opinion This forth sets joins II, SON IV, also in Parts and V of for reasons our decision Judge Associate FERREN’s opinion. electorate was vote entitled to on the issue. dissenting The opinion Associate joined MACK is Chief by Judge NEWMAN

and Associate Judge PRYOR. A procedure brief overview of the for an Initiative, initiative appropriate.

HARRIS, Judge: Associate Referendum, and Recall Procedures Act 3(“Initiative “Act”) Before us in Act” or enact- these consolidated cases are was ed to allow the petitions for electors of the review a decision of the District propose Columbia to (“Board”) present Elections and Ethics laws those proposals rejected directly certain voters approval or disapproval. of an initiative for certification on the No- 1981, 1-1302(10). sponsor vember 1981 of an ini- ballot.1 The initiative which tiative, known as the must proposed, proponent, entitled the first “District Co- proposal submit his Elec- lumbia Greater to the Board of Opportunities Educational pro- tions and Ethics. Through Upon receipt Tax Incentives Initiative of 1981” posed measure, assigns and known in as “Ini- initiative the Board abbreviated fashion it, Seven,” prepares tiative concerned tax number to short title and an potential impartial summary purpose, credits for tuition payments by places Dankman, form, taxpayers. proper Columbia Petitioner legislative certifies originally reviewing petitions, Mayor Barry 1. Because we are two the Board. Marion petition lodged proponent’s convenience we refer Dankman as initiative er, intervenors, petitions, and to the but the Board dismissed it for want of respondent. (Members prosecution. Board as of the Board are nomi- Mayor nated confirmed Arrington 2. Council Chairman and sev- Dixon Council.) among eral other members of the Council were persons challenged before 1-1320. 3. D.C.Code provisions compliance with the of this petition The propo- in final form.4 * * * nent then has days within which to section. requisite signa- secure number of valid Each sheet or sheets tures to enable placed the initiative to be initiative ... shall have attached ... a signed ballot. The petition must be penalties statement under of perju- made percent registered least five voters ry following: ... which contains the Columbia, District and the total circulator; (A) printed name of the signatures submitted must five per- include (B) The residence address of the circu- registered cent of the in at least voters five lator, giving number; the street and eight city’s wards. After signed has been sub ^[******] mitted, accept refuse to (E) That the of such circulator initia- petition if it finds that the measure is not a or referendum tive sheet ais proper subject an for initiative referen registered qualified the elector of District any dum that the petition contains Columbia; of and irregularities outlined D.C.Code 1980 (F) The sig dates between which the Supp., l-1116(k)(1)-(7). If the Board ac § obtained.[6] to petition natures the cepts petition, days the it has which to initiative then Board-approved was signa whether the number of valid certify among circulated Columbia citi- tures petition qualifying on the meets the some 19 to 24 circulators. On June zens requirements.5 distribution and percentage petition petitioner presented a for petitions must for post pub the 1,711 petition sheets and filing containing lic inspection days, beginning for ten on the 27,415 support of the signatures in initia- third day petitions after the are filed. public conducted a hear- tive.7 The Board period, may Within this voter any time the question of whether measure on the challenge the of validity any petition. subject initia- presented proper was a proponent Petitioner Dankman was the petition- July the Board advised tive. On February Initiative Seven. On ap- had, special meeting, at a er that the was proposed measure submitted to the matter Initiative Sev- proved subject the 4, 1981, Board adopt- Board. On March the accepted date, the Board also en.8 On title, statement, summary ed its short finding that the filing, the petitions form, the legislative pro- and certified that requirements with the petitions complied the posed petition compliance was with Supp., regularity outlined D.C.Code requirements Supp., of D.C.Code 1116(k). § 1— 1116(h) D.C.Code 1- § § [now 1— within which days had The Board then 1320(h)]. portion of that sec- relevant validity of the submitted tion provides that: to ascertain the validity were and, estab- signatures if their (1) circulating petition, Before the the for place- initiative lished, the certify to proposer petition shall submit the period This time was Ethics, the ballot. ment on Elections for verifi- however, by July filing the interrupted, cation that the form of is in the peti- to proponent objects the attached the 4. If ac on statement the of these eluded Board, tions as taken the he seek re tion. Superior view in the See Court. 1981, 1-1320(e)(1). testimony presented According to before the 272,000 registered vot- there are about accept If the Board refuses to the Columbia, 14,000 the District ers in stage, proponent may apply the place signatures are needed to an initiative Superior writ in the nature of a Court for a ballot. accept compel mandamus the Board 1981, 1-1320(1). petition. See D.C.Code us, argument Board reiter- before 8. At oral proper position proposal was a ated its petitions not then been cir- 6. Because had subject initiative. voters, in- was not culated this information sion”), two challenges petitions.9 August 5 the Board Inter- announced joined venor Mayor Marion Bar the results random statistical sam- Dixon— ry and 34 lodged following ob pling signatures verified sub- others— jections to proponent’s petitions: (1) the mitted in favor of initiative. Five of summary legislative statement text eight required wards met the number and, initiative were inconsistent greater percent than 99 therefore, misleading; statement was confidence; no decision reached as to (2) notary public the petitions, JoAnn the other three wards because requisite Willis, had such an interest in Initiative five wards been already accepted. had as to Seven vitiate the id., 1116(i). § 1— (see electors note supra); circula- petitions tors sign induced citizens to II petitions by misleading false and state Dankman contended the Dixon ments; (4) the proposer Initiative Seven to the Initiative Seven had failed to file a verified statement of was filed beyond period specified the time pursuant contributions 1-1116(k)(1); Act, in the Initiative D.C.Code1980 some of the circulators were not 1-1116(o), rendering thus electors when circulated the jurisdiction without over the challenge. petitions, in l-1116(h)(2)(E). violation of § disagree. We Mayor Barry separate filed a challenge to After accepted the Board has which the Board later dis for filing, days it has 30 in which to deter- missed “because of the failure of any person mine whether of certification the initiative appear on prosecute his behalf to the for the ballot appropriate. See D.C.Code challenge.” 2, supra. note time, 1116(o). During this § 1— Following a hearing and the submission the Board ascertains whether the number briefs, of August on the3 Board sustained validity of on the initiative one of challenges intervenors’ peti- petition qualification meet the Act’s stan- tions. The Board allegations overruled of post petitions dards. The Board must the other intervenors, defects assigned by but public for inspection 22,624 signatures found that the obtained for days, including Saturdays, ten by seven of the working peti- circulators on Sundays, holidays, beginning on the tioner’s rejected behalf were be because petitions third day after the are filed. those circulators residents of the Any qualified may, within elector such and, therefore, Columbia challenge validity ten the day period, could electors. See D.C. of petition, written statement 1980 Supp., 1116(h)(2)(E). Code The § 1— duly signed by challenger the and filed Board “[tjheir concluded lacking legal Board, with the the specifying concisely status to petition circulate the so tainted alleged petition. defects in such [Ibid.] this Initiative # 7 process electoral that all of signatures they language obtained are Petitioner urged that “after rejected.” The sustaining effect of petitions interve- are filed” means that the chal challenge nors’ (commencing meant the three lenge period days invalida- after —which 22,624 tion of the signatures filing running days) of voters—was and then for ten block Initiative from appearing triggered pe Seven on when a submits his proponent the ballot. Notwithstanding rejection filing securing of tition to the Board for after (and collected of noting appropriate signatures. number valid Id., Having “the Court 1-1116(j)(1). could reverse Board’s deci- submitted his notary July Willis, 9. On intervenor Dixon had re- JoAnn a District Columbia quested Seven, investigate that the Board the notariza- and a violated the backer of Initiative petitions. (We provisions tion of the note that the statute 1-501. The require petitions.) Board, does not concurring notarization the recommendation alleged petitions Counsel, rejected He that the notarization of the its General that contention. petitions filing for June insufficiencies within first peti- on tioner argued challenge that the Dixon the 30-day period (by using days July came after specified time 10-day span opponents, full allotted fol- period lapsed. had lowing period prior the initial 3-day posting), well provid- section of affect Board’s the Initiative Act challenges electors, for by qualified carefully the petition decision to how 1116(o), speaks the procedure for [Id., will be verified. at 789-90.] 1— the Board to acceptance follow “[a]fter recognized time court two an initiative petition.” referendum that, periods concurrently. run It follows Thus, operation of that section is period since the Board’s time starts premised on the having accepted acceptance petitions after its petitions. Petitioner's submission filing, period then likewise the petitions proce- alone cannot set begin acceptance peti- must with the dures 1116(o) outlined into motion. § 1— tions. Once Board accepts peti- submitted tions, accepted the initiative 30-day the Board’s peri- certification od and the challenge period begin ten-day run. on and the July interpretation Such an 1116(o) began three period challenging them § 1— with a regulation validly promul- consistent later, days Accordingly, July July 9. gated by provides timely, the Board had challenge was initiative shall be available for jurisdiction to hear it.

public inspection days for ten “beginning (3rd)

the third day after the has Ill accepted been filing.”- 3 D.C.M.R. Petitioner Dankman maintained 1010.1. disregarded one of its improperly points Petitioner language Citizens that the status regulations finding own Against Legalized Gambling v. Board of appar circulators some Ethics, Elections and 501 F.Supp. non-qualified invalidated the ently electors (D.D.C.), per curiam, aff’d No. 80-2251 signatures which admittedly otherwise valid (D.C.Cir., 28, 1980), appears Oct. which to circulating the had obtained. Before they running indicate that the clock starts on the it, togeth had petition, Dankman submitted ten-day posting period days from “[t]hree quali of er with the circulators’ statements However, after petition a a is submitted.” 1981, fication, February 27, to the Board on reading passage of that in isolation mis- that form for determination the the Board’s leading because the District Court—at least statutory re petition complied with implicitly l-1116(o) providing §—read Supp., 1980 quirements. qualified that opportunity for electors 1-1116(h). such is that requirement One § to exists after per penalties “a under statement made accepted Board has for declaring the petition attached to jury” be filing. The District Court stated: the circulator such initiative “that independent The Board to duty has reg qualified sheet is a referendum sufficiency. 10-day period assure The of Columbia.” elector of the District istered opponents cannot be viewed in isolation Id., 1116(h)(2)(E). Board certified 30-day period during from the 1— in on that the initiative was March must all work. It is complete Board its re compliance in with the opponents to if final form and reasonable conclude that 1-1116(h)(2).10 to strong quirements an initiative evidence of set forth present Attorney provides United Because statute that circu- circulators States penalties possible prosecution for lators’ statements are made under perjury, violation D.C.Code 1-1114, governing making criminal sanctions are available for 1980 Indeed, corrupt practices comply. other those who do false statements and Board process. challenged referred the statements of seven the initiative

513 387, Nevertheless, 402, App.D.C. 1120, 613 hearing at the interve- F.2d 1135 (1979), denied, 889, cert. 449 challenge, nors’ the Board ruled that seven U.S. 101 S.Ct. 247, (an 66 L.Ed.2d 115 working petitioner agency the circulators should not “have authority play Dankman’s fast behalf were not regulations”); loose with its own United electors because were not residents Lines, States Inc. v. Federal Maritime Com 20, However, the District. See note infra. mission, 361, n.20, U.S.App.D.C. 189 368 & regulation specifically provides 519, (1978); F.2d 526 n.20 584 & Zotos In failure of a circulator ternational, F.Supp. Inc. Kennedy, v. registered qualified elector does invali- 268, (D.D.C.1978) (“It is axiomatic date the signatures persons reg- who are agency regula once an commits itself its istered qualified electors. Board Rule adhering principles tions to certain 1607.9, 64, 3 D.C.M.R. Despite 1008.9.11 them.”). procedures, cannot violate regulation, the Board ordered that the Moreover, regulation has the force and 22,624 signatures collected those seven Lines, Transport effect of law. Atwood’s rejected circulators be the sole basis —on States, F.Supp. Inc. v. United circulators’ concluding status — mem., (D.D.C.1962), aff’d U.S. both Initiative Seven and the proc- electoral (“Rules S.Ct. 10 L.Ed.2d 420 ess had been “tainted.” regulations promulgated by Govern No for review was directed pursuant mental establishments statuto regulation, which had been in effect for ry authority the force and effect well over year. the only instance in law, concededly subject the same which the regulation has challenged, been statutes.”). then, tests as like its validity upheld. was Against Citizens every agency, required administrative Legalized Gambling, supra. Because the regulation. to adhere v. own Vitarelli United States Appeals Court of “it found Seaton, 535, 539-40, 79 359 U.S. S.Ct. unnecessary upon to rule validity of 972-973, (1959); 3 L.Ed.2d 1012 Service Board Rule 1607.9 in affirm- [Rule 1008.9]” Dulles, 363, 388-89, 354 U.S. 77 S.Ct. ing the judgment (by that case an unpub- 1165, 1 (1957); L.Ed.2d 1403 Accardi v. order), lished determination the Dis- Shaughnessy, U.S. 74 S.Ct. regulation trict Court that valid L.Ed. unimpaired. Board, the During hearing before the As validly promulgated and un Chairman indicated the first time that challenged regulation, Rule 1008.9 is bind 1008.9, dealing Rule effect ing upon the Board. National Conservative of a circulator’s status on the otherwise Political Action Committee v. Federal Elec collects, apparently valid he Commission, tion U.S.App.D.C. 200 given plain would not its mean- facially 953, 626 (1980) (per curiam); F.2d 959 Pan subsequent fal- ing. Presaging the Board’s handle Pipe Eastern Line v. Co. Federal application lacious regulation, Energy Commission, Regulatory 198 U.S. Chairman announced: represented hearing promulgate regulations General Counsel at the on statute to rules and that, Id., intervenors’ implementation the direction of the Initiative Act. Board, prior filing even to the actual adopted To 1-1324. that end the Board hearing, and the he had taken the unequivocally: rule which states copies reg- circulators’ names and of their mail failure the circulator an initiative applications istration United States At- registered referendum to be torney. signa- qualified will not invalidate the elector registered qualified ture of otherwise an independent agency 11. The an 1607.9; 64, elector. Rule D.C.M.R. [Board government District of Columbia charged 1008.9.] administering city’s election published Register That rule was the D.C. laws. See D.C.Code § 1-1306. As not- July 16, ed, June and became law on appointed by Mayor, its members are (1980). D.C.Reg. with the advice and consent of the Council. id., empowered by § 1-1303. The Board is Review, Appeals D.C.App., 342 A.2d say beginning I would like to at the Columbia, objections your legal (1975); that we have all of v. District of Sellers mind, in our Mr. Mayberry (1958); D.C.Mun.App., 143 A.2d [counsel Dankman], hope you I that petitioner but Paine, U.S.App.D.C. Wright v. allegations appreciative are that serious review of 289 F.2d Our have been made. gov- application regulations of its Board’s put you on notice Board wants to of reasonableness. erned standard place great too you should not apply its attempts “[W]hen 1008.9 of our reliance on Section our regulations, own we cannot substitute saying your argu- rules. We are not is rea- application if the Board’s judgment particular point ment on that does v. Board of Elections sonable.” Pendleton it, passed have merit. We have not 1102, 1105 Ethics, 433 A.2d D.C.App., want to understand certainly you but Haworth, curiam), In re citing (per could be possible that it is rule (1969); 258 A.2d 447 see D.C.Code D.C.App., apply considered to to a situation differ- 1108(p)(2). § 1— ent from this one. So, purpose preparing your for the regu plain meaning Here the relied on response, you I understand applicability the whimsical prohibits lation law, it as a matter of but I think we facts of this by the Board to the given it it dan- ought you to warn that would be it Board Rule means what case.12 1008.9 gerous too much reliance on that put status does says: in the circulator’s a defect as a matter of law. gath has signatures he not invalidate the admonitions, the circulator possible ered. The sins of Consistent with those fact, acknowledged electors findings upon its not to be visited 1008.9, but stated that faith. good the existence of Rule sheets signed petition intended to it the rule was not does not regulation phrasing clear “believe[d]” seven presented by cover the situation for inadvert single qualifier contain a —not challenged circulators. The Board conclud- cir- ence, about a not for reasonable belief Board Rule 1008.9is ed the intent of status, quantity of not for the “[t]hat culator’s in which the circu- to cover those instances Accord question.13 called into signatures due to his or registered lator failed to be ingly, we cannot conclude register, her or a candidate inadvertence reasonable. its rule was interpretation of circu- reasonably believes the proponent interpretation— find that the Board’s We elector, and the number lator is a into oblivi the rule qualify which served to was de minimis.” involved and restricted plainly erroneous on—was purpose the basic implemented rather than erroneous, agen plainly Unless in the purpose, That the Initiative Act. will of regulation of its own cy’s interpretation the electorate permit Board of is to analysis, be accorded deference. final Snider argument of the three redefining that one render 13. The Board’s its Rule 1008.9 so as to 1008.9was intended applicable in which Rule circumscribed situa- instances three tions, operate provided explanation “the number was when no particularly spoke only de minimis” seems involved was unpersuasive action. It of its belief about already given replace has that the Board intent of the rule. Mere belief cannot analysis disposal which covers of its rules type at its another administrative of reasoned provides Rule 1010.5 properly accompanies agency’s that situation. Board inter- which an regulation. pretation failed to that: The Board of its depar- explanation “provide for [its] a rational motion, may, dismiss a its own The Board petition challenge regulation. National Conserva- ture” from its the total moot where Elec- tive Action v. Federal Political Comm. challenged signatures would not number of Comm’n, U.S.App.D.C. supra, at tions signatures sub reduce the total number explication lack of 626 F.2d at 959. total required by proposer(s) below mitted statutory convinces of its novel view of the rule further 27 D.C. D.C.M.R. amount. [3 looking beyond us that erred in the Board (1980).] Reg. meaning. plain rule’s IV vote on issues. D.C.Code appropriate 1-1324; (1979); 25 D.C.Reg. 9454 § challengers only not inter- The Dixon Gambling, Legalized cf. Citizens Against review, for petition in Dankman’s vened supra, (initiative legisla- at 789 filed their for review F.Supp. but also own determination, asking of the Board’s that liberally construed). tion to be for reasons we affirm Board’s order We note our view of rule is that upon those which the Board other than consistent with overall tenor of the They urged that the Board erred in relied. prevents Initiative Act which er “harmless premising rejection its initiative ror” in the from signature process collection grounds (1) on the that petitions additional See, vitiating validity petitions. summary misleading; was statement e.g., (if “the same (2) improperly; were notarized petitions person has same signed for the proponents to file a veri- failed initiative or referendum measure more than fied statement of contributions before the once, shall one count [the Board] petitions accepted. signature person”; signs of such if a person assert to advance Intervenors a petition but indicates ward as wrong arguments Supp., such under D.C.Code1978 residence, his person “such shall be counted l-1108(p)(2), provides from determining the correct ward in three announcement [wjithin days after whether or not an initiative or referendum determination of the Board with of the ballot.”). qualifies measure for the validity nominating respect paramount concern must be with validi challenger petition, any per either the ty of on the for petitions, in the challenged son named deny the these persons signed who “[t]o may apply nominee signa the chance to have those Court of for a review Appeals Columbia solely tures because of misconduct such determina the reasonableness of count— by others on the that does not cast doubt expedite tion. court shall considera this themselves—would force tion the matter and the decision of appeala-ble Court to shall stand form rather than sub such court be final and .[15] Against stance.” Gam Legalized Citizens 790; bling, supra, F.Supp. Pendle cf. however, alone, cannot provision That Ethics, ton supra, v. Board of Elections and standing to party clothe a with automatic (“Our purpose A.2d at 1104 in review agency. rulings by unfavorable merely elections that no to insure Appeals in Lee Board of As we stated

voter through improper Review, was disenfranchised A.2d D.C.App., 423 only petitions interpretation Board.”).14 (1980), “we entertain intervene, policy right light in- it reflects of our treatment of the Board’s 1008.9, by sponsors terpretation equal of Rule we need not reach to this court access petitioner’s p. grounds [Post, D.C. challengers petitions.” reversal. 523] other asserted for Supp., 1-1108(p)(2), does not deal Code 1978 Code, remotely, expressly, in the with interven This section of the contained much less provisions challenging petitions tion, Judge parlays nomi yet lan FERREN Education, nees to made part governing guage statute —into —as applicable challenges “aggrieved” require to initiative to circumvent license 1-1116(o). Be allowing D.C.Code 1980 standing. By intervenors ment for provision incorporated cause the relates to the [post, p. legal arguments” available raise “all Education, applied language, Board of when by refusing to limit role to 525] procedure, imprecise initiative order, Judge FERREN supporting the Board’s parties does found not mesh with or terms rights peti all the intervenors with cloaks Nonetheless, elsewhere in the Initiative Act. sidestepping quite unpersuasively tioners — provides linchpin that obscure statute appeal requirement those bedrock analysis. He con FERREN’S tortuous injured the admin must show “Although cludes: [Board Education] tribunal’s action. istrative scope expressly statute does not deal with the 516 (1944) (per curiam) (successful below party legal a

brought by ‘any person suffering wrong, adversely aggrieved, is in standing appeal affected to because “he lacks an or an Mayor order of decision of complain aggrieved that he is position no to ’ agency in a ease .. .. D.C.Code contested success”); Ad- his own 73 C.J.S. Public group 1978 The Dixon 1-1510.” 176 Bodies and Procedure ministrative has failed to show that it was affected (“As (1951) general a rule an administrative can it adversely by the Board’s order. Nor in prejudice result ruling or decision must Because point any injury. to person may before he rights to the of a proponent’s sustained their thereof.”); Full- judicial cf. secure a review Dixon petitions, group, petitioner unlike Commission, 520 County Road er v. Branch Dankman, to have cannot be considered curiam) 307, (6th 1975) (per Cir. F.2d 309 Dixon, al, et been the order. aggrieved who has been to consent decree (party standing appeal thus to the Board’s lack agreed he to not con- accorded the relief Forge Valley order favor. See appeal from aggrieved may sidered College Americans Christian v. United Accordingly, dismissing complaint). order Inc., - State, Separation of Church and to review we would dismiss -, 752, 757, -, 70 U.S. 102 S.Ct. No. 81-978.16 (1982); Na Deposit Guaranty L.Ed.2d 700 proceeding 326, 333, 100 parties to the Obviously, as Roper, tional Bank v. 445 U.S. 1166, 1171, (1980); inter- below, Dixon, L.Ed.2d 427 be heard as may S.Ct. 63 et Finn, Fire 341 Casualty American & Co. v. for review. venors Dankman’s 6, 534, n.17, n.17, 95 U.S. 18 71 542 S.Ct. governing 15(g). rule D.C.App.R. Our (1951); L.Ed. 702 Public Commis Service intervention, grants Rule automatic 15(g), Lines, Inc., sion v. Brashear 306 Freight was a anyone to who intervention status 480, 481, 204, 206, L.Ed. 608 U.S. 59 83 S.Ct. agency. before the proceeding party curiam) success (per (Commission, as Dixon, et disputes member of the court No below, appeal ful party has no peti- intervene in Dankman’s right al.’s Service, decree); lower court’s Sea-Land Rather, question permissi- is the tion. Asso Longshoremen's Inc. v. International conclude that scope intervention. We ble ciation, (5th 1980); 38, F.2d Cir. may not broaden Dixon intervenors Inc., Recreation, Burleson v. Coastal only but rather scope of contested issues 1978) 509, (5th (“Ordinarily F.2d Cir. assigned by the reasons may party below litigant decision. judgment who is or order aggrieved by the upon the intervenors’ The limitations FTC, Inc. Pepsico, v. appeal.”); ap- the nature of emanate from function denied, 414 179, 186 (2d 1972), F.2d Cir. cert. In a agency from determinations. peals 876, 94 38 L.Ed.2d 122 U.S. S.Ct. admin- review of an order an petition for (“The before an being ‘party’ notion losing petitioning proceeding, istrative or is a agency automatically either confers aspect some no more than attack party does right judicial necessary condition of order, leaving the lower tribunal’s v. of longer valid].”); review no Koehne [is By to defend its actions. itself Harvey, D.C.Mun.App., 39 A.2d tribunal conclusion, certify bal- inclusion on the note Seven for we Initiative 16. Consistent with that action, entirely proper. agency Intervenors’ that permitted we are lot was simply when we review uphold agency’s for failure unless not be entertained order could “aggrieved” requirement grounds agency satisfy upon relied basic upon standing; reach the merits which its action can we need not the same ones thus Chenery Corp. (II), arguments re- 332 U.S. raise. sustained. SEC the additional judicial nothing 91 L.Ed. review 67 S.Ct. “to cut off mand did Corp. (I), [Post, (1947); 95, Chenery rights guaranteed by p. U.S. SEC v. statute.” 87 L.Ed. 626 merely 63 S.Ct. it had the Board that It informed n.15.] committed it to and directed an error of law expectation would that we Because impedi- was the sole error—which correct the petition, our October dismiss al.’s placing on the ballot. the initiative ment Board with directions remand procedural design, independent the from either the Board’s agency wholly carries the burden of supporting its occu expansive decision and Such an petitioner’s position. a pies permit defensive role. To an interve- contrary role for an intervenor would run nor not to lend its voice in rule, the which to the intent of intervention the Board’s action but to also assert addi unavoid- simply seeks to assure that issues grounds tional rejected which had by been are resolved ably by addressed the court not the would agency afford an intervenor the representation. of proper the absence power effectively to agency convert chal Dixon, al., inject Here, attempt to issues et lenges litigation private into between the phase litigation appellate into the parties agency proceeding.17 See 9 nor saw petitioner that neither the Board (2d Moore’s Federal Practice 215.07 ed. fit to contest.18 1980); Shapiro, Thoughts Some on Inter court, unquestionably A the majority of Courts, vention Before Agencies, Arbi by swayed the fact that this is an election trators, 81 Harv.L.Rev. (1968) case time in which the constraints of (“When one is granted intervention, either narrow, label of concludes that mere right as of or in discretion, exercise permit party “intervenor” should a to such does not necessarily follow that he must be a to all issues with which it is granted all the case raise rights of a party at the trial * * * concerned, appellate notwithstanding positions levels. Yet it should not follow from right by respondent to intervene on a and the petitioner taken given issue that the intervenor all obtains justification for agency. purported Their rights party of a respect to every such the interve- holding is threefold: issue.”); cf. Credits Commutation Co. v. prevailing party put nors’ position as States, United 311, 315-16, 177U.S. 20 S.Ct. losing party when the files jeopardy 636, 638, 44 782 (1900) (denial L.Ed. review;19 (2) the Initiative petition for Act motion to intervene appropriate where (only, to provides for access the courts equal questions raised by intervenors would be note, by losing party); we in an handled in separate suit). better case, the essence. We election time totally grant power unpersuasive. such find these reasons unintended showing would enable an argument intervenor to come into a The first falls short of review proceeding point “aggrieved” assert of view how re- satisfy intervenors litigation beyond original 17. The “expand concurrence’s on reliance International Union, Aerospace Agri United petitioner Automobile 525], & [post, p. scope” because Implement culture field, Workers of America Sco appeal respondent frame issues 382 U.S. 86 S.Ct. L.Ed.2d meaningful before the intervenor becomes a (1965) (Scofield), opposite to reach the conclu party. misplaced. all, Supreme sion is First of expressly holding Court limited its Labor “elementary 19. Judge FERREN refers to the proceedings. Board review Id. at 86 S.Ct. Dixon, al., proposition” would not have et at 377. Scofield holds that both the successful standing review if Dankman had charged party charging par and the successful [Post, p. had not done first. For n.10.] so ty right ap have a intervene a court of FERREN, mystically Judge situation different peals proceeding 10(f) review under filed a for review. arose once Dankman Act, National Labor Relations which does is, analy Judge according to FERREN’S That explicitly provide appel for intervention at the sis, by jeopardy contingent faced late court level. That outcome tracks our own retroactively with them somehow clothes 15(g) by allowing parties Rule those who were by “aggrieved” parties who were appeal. Assuredly below intervene Sco agency originally having prevailed at the purport field open does the door argument basis in law level. This lacks replay agency pro intervenors the entire question ceeding Was appellate remains: at the reason. relevant level. Such a result by every question party aggrieved order? would mean that resolved an agency virtually entry subsequent would receive de of the Board’s novo review Events court, appellate order, filing peti absurd result of a in this Dankman’s case unquestionably Congress. was not review, intended to that tion cannot alter answer basic, “elementary,” question. indeed Contrary assertion, FERREN’S introduction of additional does serve to issues the circula- exception, that failure of quirement enable them “[t]he referendum arguments other those tor of an initiative or advance than raised original elector will not by parties appeal. registered qualified to be a statutory argument similarly unavailing, of an otherwise signature invalidate the as relevant provision simply Code as- elector.” Board Rule registered qualified 1607.9; sures that Board’s decision is reviewable I believe 3 D.C.M.R. 1008.9. losing any valid, party. 1607.9is and that Board that Rule event, justification there no sound rejected petitions violated this rule when reading according the statute as intervenors 22,624 Accordingly, containing signatures. and, rights petitioner, thereby, all the of a certify Ini- I that the Board must conclude requirements standing. to eviscerate # 7 for the November ballot. tiative Valley Forge College See Christian Separation Americans United for of Church I. - - State, Inc., supra, at U.S. conclu- supports The record n.24, 102 n.24. for the third S.Ct. at 766 As petitions support- sion that “circulators justification, certainly time is of the while 22,624 sig- ing # who obtained Initiative essence, that truism not be invoked to not (82.52%),were residents natures precedent governing overturn established ”.. Board Conclu- of Columbia .. District power. exercise of judicial none could Law 8. It follows that sion of intervenors, proscribed role In their as registered elector qualified be “a al, them, Dixon, we limit ef would Columbia,” required a status argue up that the Board’s order should be peti- who an initiative everyone circulates challenge was (1) held because: intervenors’ 1— Supp., D.C.Code tion. correctly construed timely; 1116(h)(2)(E). Despite require- this clear 1008.9; the circulators were Rule however, law, circula- ment of the these required electors as qualified registered a local committee of sponsored by tors— 1-1116(h)(2)(B), Supp., D.C.Code 1980 a vir- Taxpayers National Union—directed (E).20 We have already disposed of interve- the District tual blitz ante, arguments. first two at II nors’ with the agree Columbia electorate. holding regarding our III. Because of dissenting colleagues, my and with of Board Rule appropriate construction manipulation reflects “a that the evidence 1008.9, we reach intervenors’ last need not in direct violation process of the initiative of the Board’s support contention order. ” Board Order statutory direction .... Even if we conclude that the were to Board at 14. found that seven of the circulators properly however, is not con- “manipulation,” This electors, registered qualified were not Rule here, three for the record establishes clusive prevents pos 1008.9 that circumstance from important other facts: petitions. defect to the a fatal First, signa- questions no one FERREN, Associate Judge, concurring filed in tures on the result:1 27,415 au- # 7—a total Initiative —are registered “qualified of Elections and Ethics has thentic Supp., 1- a rule adopted expressly providing, §§ without electors.” D.C.Code noted, right voting Supp., 20. As we residence or vote claim is, Territory; (B) 1116(h)(2)(E), who or will be provides State or § 1 that each election, eighteen day next on the shall have a statement attached to it “that the old; (C) mentally in- years who is not peti- circulator of initiative such or referendum compe- adjudged competent a court of registered tion sheet is a elector of jurisdiction. I'-§ [Id., tent “qualified District of Columbia.” The term 02(2).] ll elector” is defined (A) a citizen of the United who resides States judgment and in of reversal 1. I concur in the does domiciled District and opinion. HARRIS’ II of Part -1116(i). 1116(g)(1), -1116(h)(2)(D), warrant decision signatures through Board verified the ran- shall not reach the ballot? initiative dom statistical sampling. Accordingly, this

is not a case where the failure of the circu- II. lators’ qualifications questions raised about genuineness relevant, petitioners’ signa- possibly Initially, we confront tures.2 determinative, rule:

Second, of an ini- although failure of the circulator alleged intervenors that misleading “unnamed circulators and be a petition made or to tiative referendum deceptive potential signato- statements to will not inval- registered qualified elector ries petition,” supports the record the regis- the of an otherwise signature idate that finding presented the evidence Rule qualified elector. tered [Board allegations to substantiate those “was mea- 1607.9; 64, 3 D.C.M.R. § 1008.9.] ger Finding and inconclusive.” of Board adopted to pursuant The Board Rule 1607.9 Fact No. 6.3 authority its to “issue rules and statutory Third, regard legal poli- without or Initiative, the regulations” implement of cy merits the tax credit proposal, Referendum, Act and Recall Procedures of 1, meeting July Board concluded at its 1979, (Ini- Supp., 1980 1-1119.1 § 1981, subject” proposal “proper is Act). tiative Procedures for a citizens initiative. D.C.Code 1980 argument, A. At oral intervenors Supp., l-1116(k). challenges No one that § aL, position took that Rule 1607.9 is conclusion.4 void; had no contended Board Consequently, we a question confront authority adopt the rule because the court, my no other knowledge, has statute, construed, dis- properly mandates had to consider: When Board has ac- qualification by dis- collected cepted petitions containing subject proper qualified disagree. circulators. initiative, for an verified that a sufficient requires the Board to “refuse The statute qualified number of registered electors have to accept” signed petitions they embody if them, signed and concluded evi- typical- one or more defects which specified dence fails to allegations that the ly circulators are visible when the made misleading deceptive and statements, 1- presented. Supp., does the fact D.C.Code 1980 disqualified, See statute, nonresident however, circulators 1116(k).5 solicited 82.52% of does not v, Moore, Ethics, 2. Cf. Whitman shall refuse to Ariz. and Elections 445, (1942) (absence P.2d accept of circulator’s if the finds that the “requires subject certificate stricken proper names should be presented not a measure referendum, absence of affirmative applica- evidence or whichever is initiative signing qualified electors.”), that those ble, terms of title IV the District of under the overruled, part, grounds, on other Renck v. Columbia Self-Government Reorganization Governmental Superior Maricopa County, Court Ariz. amended, Act, upon or 320, (1947). 187 P.2d 656 following grounds: (1) the verified statement contributions See, Hall, e.g., Reynolds 3. v. 222 Ark. pursuant to 1- not been filed sections has (1953) (sustained 261 S.W.2d demur- 1-1136; alleged conspiracy liquor rer to dealers to proper (2) not in the form signatures, through representa- solicit tions, false section; (g) of this established subsection oppose for referendum increased li- quor taxes). (3) in sub- limitation established the time Compare Referendum Convention Center (j) which the this section within section Committee v. tions and Bd. Elec- District of Columbia petition may and submitted circulated Ethics, D.C.App., 441 A.2d 889 expired; or the Board has clearly bears an face signatures; or number of insufficient 1116(k) Supp., provides: D.C.Code 1980 1— Upon submission an initiative or referen- petition by proposer dum the Board of Hutchinson, Cir., 28, 1980); Edwards Oct. what be done when the specify should 35 P.2d accept after 178 Wash. irregularity Board detects id.; signatures by unlaw filing. (solicitation signed fully paid does workers The thirty-day “invalidate[ ] 1010.1. 3 D.C.M.R. voter”; in legal legislature signature of a during which the Board to count period safe the sole provisions as ten-day “penal validate includes a tended law, operation of proper public inspect guards for the chal for the period specifically provided except it has petitions, wherein lenge see D.C.Code 1-1116(o); safeguards”). other Supp., yet statute irregularities to establish fails remedies Initia- adopting specifically, More during scrutiny when very period found Act, required tive Procedures Council circumstances, is invited. Under these registered must be that circulators interpret Board has the statute authority greatest electors, “to in order insure adopting regula rules and reasonable solicita- signature in the degree integrity 1119.1; D.C.Code 1980 tions. § 1— Report, District process.” tion Committee see District of Columbia v. Catholic Univer Oper- on Governmental Council Committee America, 915, A.2d sity D.C.App., 919 ations, Presumably this Jan. 4. to minimize means the Council wanted that initiative corruption of the potential It is the statute for the the for consistent with assuring Board, circumstances, goals ultimate in such to limit sanc with the process, sign registered electors qualified that only tions for unlawful solicitation the crimi signatures that Supp., petitions nal process. See D.C.Code 1980 informa- and accurate 1-1114(b), -1116(h)(2).6 complete Absent based on a statu §§ 1607.9, the Board Rule contrary, adopting the tion. tory provision the In have goals that when these required clearly to keep proper not an otherwise indicated invali- achieved, not the Board need Against initiative off Citizens been the ballot. because proper signatures Legalized Gambling v. Board of Elections date otherwise circula- Ethics, by disqualified F.Supp. (D.D.C. were collected circulation implied that 1980) by the circulator tors. The Board (“noncompliance se, not, consti- per a voters did non-registered need not—as matter of law—invalidate process.7 of the electoral signature corruption so the sanc tute a long as criminal pre- Board’s is within the pursued”) (footnote omitted), judgment tions are aff’d That U.S.App.D.C.R.13(c), (D.C. rogative. No. 80-2251 per (5) petition attached the the sheets do not have at- that circulator’s statement the perjury.” petition “penalties tached to them the statements of the circula- made under provided (h) in tors subsection of this section; or persuasively argue that if a voter 7. One can authorizes, (6) petition the or have would particular was a nonresi- knew a circulator that authorizing, pro- the effect of discrimination very might lobbyist, fact dent this influence Rights hibited under Human the Act of sign petition. would the voter It whether the (D.C.Code, seq.); et or sec. 6-2201 might a solicitation in which this follow petition presented negate the would inherently misleading, fact is not disclosed act of the limit an the Council of District “integrity” purpose behind pursuant section Columbia 47-224. residency requirement for circulators could not petition, accept In the case of refusal reject the Board be met unless all Board shall endorse words by disqualified signatures solicited circulators. date, accepted submitted but and the however, compelled is not to take appeal. pending retain If none of Compare it did not. this view —and Direct exists, grounds refusal Board shall McBrayer, Sellers Association 109 Ariz. accept petition. 951, 953-54, vacating Ariz.App. 503 P.2d 1-1114(b) Supp., provides (interpreting D.C.Code 492 P.2d statute up year prison up to one provided and/or to a expressly that solicitations $10,000 penalty fine as a for false statements or persons than electors shall other initiative, corrupt practices other in the refer- determining legal counted void and not endum, addition, process. or recall In petition). sufficiency 1116(h)(2) provides was “meager

B. tive statements and inconclu- considering When Initiative # however, sive”; changed policy. the Board De- one questions and no Board’s spite unequivocal of its rule language proposal conclusion that tax credit is a 22,624 rejected though valid for a proper subject citizens initiative. The illegally signatures, stating obtained registered signed voters who these necessary preserve integri- was “to faith, presumably good believing so did ty process.” Board Conclu- initiative functioning prop- process initiative sion of Law 8. The Board that Rule stated provides, 1607.9 without erly. Board Rule 1607.9 “was cover intended to situa- disqualifi- exception, that circulator’s own tions in inadvertently circulator cation shall invalidate the signature was not registered at the time question, qualified registered voters. The collection or circumstances in which a candi- then, that rule be inter- is whether should date or of an reason- proponent initiative (or voided) deny those who preted so as to ably registered, believed a circulator was present signed petitions opportunity finally situations in which small number voters, the sole rea- an initiative of signatures is Board Order at involved.” son for most responsible that the circulators outside the came from District. I conclude not. problem is that Rule 1607.9 does not specify these unimpressed limitations. am that, argument interpret III. unqualified rule, its own the Board can al, peti- No. 81— redefine it retroactively per to mean what tioned for review of the contentions three haps it say could but not. plainly does See they summary lost before the Board: the Nixon, United v. States 418 U.S. 695- statement of the initiative bill was mislead- 3090, 3100-3101, 94 S.Ct. 41 L.Ed.2d ing, the petitions improperly were nota- (1974); Davis, K. 2 Administrative rized, proponents and the failed file a Law (1979); Treatise 7:21 Junghans cf. v. timely verified statement of contributors. Department Resources, Human D.C. We petition consolidated this with Dank- App., (1972) (“failure A.2d 25 n.13 review, 81-977, petition man’s for No. in government body to conform its own al., Dixon, which support et intervened to procedural rules render action in ruling. the Board’s valid”). I believe the integrity of the demo process

cratic depends opinion Judge on the Board’s faith Part IV of HARRIS’ fully Dixon, rule, al., its own applying clear whether et question ill-advised raises me, arguments not. in therefore, For have to advance the standing this case turns on the rule. If the the Board. they Board this court that lost before modify wants it, the has they standing, Board do have and authority pro to do conclude that so— spectively. raised are that have questions review, scope within our but C. In summary, the record reflects that rejected arguments on properly on the petitions accepted by the merits. genuinely of qualified those registered electors; acknowledges that properly Judge A. HARRIS found Dixon, right sup- al., may the evidence introduced to intervene as of et port ruling. charge support were col- the Board’s No. 81-977 to lected on misleading the basis of see International Un- decep- D.C.App.R. 15(g);8 necessity D.C.App.R. 15(g) provides: 8. deemed an intervenor without party Any filing who other a motion. party proceeding INTERVENTION. A a motion con- shall file agency desires to intervene before the who desires intervene taining interests of parties statement of the upon this a concise court shall serve all grounds upon party proceeding moving and the file with clerk of this copy sought. notice of is court one intervene of a notice intention to intervention whereupon party to intervene motion for leave said shall be intention or would have vailing, now-aggrieved party Automobile, Aerospace Agri ion, & United Id. America, judicial review. round Implement Workers start second cultural Scofield, 211-12, at 377-378. at 86 S.Ct. AFL-CIO, Local 283 382 U.S. 210-11, 15 L.Ed.2d 86 S.Ct. case, if Dix example, for present In the (Scofield ).9 In order to evaluate al., et on, to intervene permitted not (i.e., the of intervention proper scope review, this petition for in Dankman’s intervenor is al arguments an

range Board, after as soon as the would mean that under important is make), lowed to 7 for the remand, # certified Initiative had stand, first, per itself is intervention why al, et ballot, Dixon, would have mitted. “challengers” alleging a statu this court “review of the reasona tory right to seek prevails before A challenging party Board’s determination. bleness” aggrieved no is once agency longer (made 1-1108(p)(2) Supp., § A for issues its order.10 agency 1— D.C.Code 1980 applicable by review, however, jeopardy, once puts U16(o )).11 interests that very rights again, sought pro- had newly-prevailing party unfair to two-stage review would be Such success before who now challenger’s party, If the initially-prevailing tect. meeting kind eliminate the extra burden of agency were deemed to would have an res stare decisis if ap- required arguments for intervention about of interest Scofield, supra at judicata. hearing if peal, and the court —after moreover, approach, at 379. Such petitioner agency from the S.Ct. —were time order, energy once-pre- would waste the agency’s to reverse case, petitioned days thirty if Dankman had not be filed of the date shall within al., review, Dixon, obviously et would unless which the for review filed standing so either. HARRIS order of the court to do such time extended 515-516, good cases, this ele- shown. cause cites ante argument mentary proposition to his jurispru- leading 9.Scofield case on the Dixon, also lack once et pro- dence of in administrative intervention petitioned has to invalidate Dankman Board’s order Moore, ceedings. See Federal Practice 3B J. favor. al.’s (2d 1980). The 24.06 244-111 n.6 ed. [3.-1] at ¶ Supreme charged and Court held that both Supp., 1-1116(o) provides 1980 D.C.Code charging parties prevail at the N.L.R.B. part: in right 10(f) have a bor Relations appeals of the National La- under § may, Any qualified elector within such ten in to intervene a court of Act period, challenge day validity any of proceeding. review petition, by duly signed a written statement Judge Sco- HARRIS attacks our reliance on challenger and filed with the field, standing argument support but his concisely specifying alleged defects in cases, only two of deal he cites eleven provisions petition. The such 1- of section adjudica with court review of administrative applicable 1108(p)(2) shall be to such chal- tion. Ante Lee v. Board at 515-517. Review, lenge. [Emphasis .. . added.] 210, Appeals D.C.App., and 423 A.2d Supp., l-1108(p)(2) provides D.C.Code 1978 (1980), Judge with HARRIS’ 215 own inconsistent part: argument that, a to determine whether The Board shall receive evidence in standing party sufficiently injured to have opposition and in review, must look to the Board the court validity challenged shall determine Lee, Judge order alone. Ante at 517 n.19. In nominating petition days .... permitted Within three HARRIS an event external to (restoration after announcement of the utilities a third determination of Board order respect party) deprive validity the Board with to seek tenants nominating petition, granting challenger that review of an permitted variance either order person As challenged to cut off utilities. named in the landlord F.T.C., Pepsico, (2d may apply 472 F.2d 179 Cir. Inc. v. denied, nominee to the District of 1972), 414 U.S. Appeals cert. S.Ct. Columbia Court for a review of (1973), quotes HARRIS L.Ed.2d the reasonableness of such determination. stating party status not as expedite sentence sure or that does shall court consideration of the preclude judicial is irrele review. This decision of matter such court shall be al., Dixon, may et intervene vant here because appealable. [Emphasis final and added.] 15(g). right D.C.App.R. as of under court, Scofield, supra ceeding. which would have to hear the See same U.S. at again. 212-13, case 377; id. at at See S.Ct. Brotherhood of 86 S.Ct. Rail- 378-379. In summary: v. Baltimore road Trainmen & Ohio Rail-

If the party Co., 519, 529-31, successful before the Board road 331 U.S. 67 S.Ct. is not allowed to intervene in the court of 1392-1393, (1947) (statute 91 L.Ed. 1646 appeals and if the court of appeals revers- grants right absolute to intervene in both es the Board and returns the case to it for judicial forums); administrative 3B J. further proceedings, probable then it is Moore, Moore, ¶ supra 24.06[3.-l]; 9 J. su- that the party who was not allowed to pra (2d 1980).12 Thus, ¶215.07 ed. while it intervene in the first appeal will himself may be true that an intervenor in support right have the bring appeal. a second agency of an order normally is limited to judicial In the interests of efficiency and arguments position track the agency’s intervenor, fairness to the would-be court, yields before limitation Supreme highly Court considered it desir- when the governing suggests statute able to have the court appeals hear all comprehensive more intervenor’s role. the parties in one proceeding. present case, In the the Initiative Proce- Hodgson v. United Mine Workers of Ameri- Act, dures Supp., ca, (D.D.C.1970) (sum- F.R.D. 1116(o), adopts appeal speci- rights § 1— Scofield), marizing rev’d on grounds, other fied in 1108(p)(2). D.C.Code 1978 Workers, Trbovich v. United Mine 1— 404 U.S. note 11 supra. Although this statute 92 S.Ct. 30 L.Ed.2d 686 expressly does not scope deal with the Indeed, policy favoring intervention by right intervene, policy it reflects a the prevailing party in jurisdiction is so equal access to this strong D.C.App.R. by sponsors court 15(g) permits a “party to the proceeding before agency” challengers petitions. Scofield, supra Cf. to intervene on appeal as of right, in con- (charged charging parties alike who trast the corresponding federal rule prevail at N.L.R.B. right to intervene provides only for permissive interven- in court appeals review proceeding). tion in the absence of “an applicable stat- More specifically, 1108(p)(2)provides that ute.” Fed.R.App.P. 15(d). “either the challenger any person named B. I turn now scope of interven- challenged petition” may apply for tion: As prevailing party-intervenors, addition, review. the brief statutory are supporting limited to timetable challenges, for election coupled position, or, addition, they with the requirement that this court must arguments advance rejected? (2) “expedite consideration,” id., manifests a If permitted present the addi- legislative intention that all election issues arguments, tional does it matter whether promptly, piecemeal be resolved without re- they make them as “intervenors” in No. aspects view. These two of the statute 81-977 or as “petitioners” in No. 81-978? compel losing- a conclusion that both the petitioner prevailing-party and the party

1. The scope right to inter appeal free on to make ev- intervenors are vene in proceedings administrative is deter before, on, by mined reference raised and ruled statutory ery argument to the scheme governing particular agency pro- by the Board.13 Scofield, Co., supra, Supreme 12. In 358 F.2d stated v. Cir.) Electric Court 13. N.L.R.B. General 292, considering curiam) (upon propriety (2d (per that “in remand in of interven- 294 Scofield, appeals, Appeals light supra, tion in the courts of limited to Labor Board review our discussion is Court peti- proceedings. a union’s concluded that it could dismiss agencies fungibles Federal are not Labor Relations for interven- tion for review of a National purposes Congress permit- tion “will be has treated the mat- Board order because the union — particular statutory ter with attention issues raise all relevant ted as intervenor to 210, brought agency.” upon by scheme and cases” Id. 382 at the other two U.S. 86 review of Electric) (emphasis S.Ct. at 377. the Board and General As arguments. of Dankman’s basis prevailing-party If intervenors did and the as the case was remanded soon equal, right this not have unfettered the initiative for prepared certify review, very justifying reasons inter al. Dixon, et ballot, try could obtain economy— judicial vention —fairness and, they if reconsideration the Board place, would be undermined. In the first lost, again- court once come to this —this al., et Dixon, win penalized would be petitioners, not intervenors —to time one, none, argu instead of of their ning ruling grounds lost on agency; they ments to the for if had See by the first court review. resolved petition thus grounds all had become —and 1108(p)(2); note D.C.Code 1978 § 1— court have entertained each ers —the would al., Dixon, supra. Thus, if et were not supra; cf. See Sco error. note 11 alleged review to advance in the first permitted field, supra at at U.S. S.Ct. arguments all proceeding 380.14 statutory policy rejected, however, more is the follow- telling, Even court, expedited this on an equal access to present in the Suppose illustration. rea basis, ignored, very and the would be al., could not advance in case, Dixon, et the first intervention justifying sons See Part III.A. before subverted. arguments they place this court lost would be supra.15 Board, we were to reverse and that “aggrieved” require- satisfy denied, basic added), ure to 385 U.S. S.Ct. cert. standing; thus we need not reach ment L.Ed.2d 130 arguments merits of all the additional the they Scofield, supra at In 382 U.S. at 86 S.Ct. nothing raise. The remand did “to cut Supreme Court reasoned: judicial rights guaranteed off review stat- charged party When the loses before p. merely ute.” Post at 525 n.15. It in- Board, statutory right to he is accorded formed the Board that it had committed an oppose seek or immediate review and error of law and directed it to correct If the case. this he nial review of Court’s ultimate impediment error—which placing was the sole however, level, prevails agency de- at the the initiative on the ballot. [Ante rights deprives him of of intervention 516 n.16.] though losing party, the is- even accorded a sue before the saying This statement is fallacious. reviewing is identical— court certify Initiative court could direct the Board to been should have whether a remedial order Seven Board’s invalid for the ballot because the charged party. against These entered interpretation im- “was the sole of Rule 1607.9 assumption that us to the considerations lead Congress pediment lot”, placing on the bal- the initiative intend, clearly without would added), (emphasis ante at 516 contrary, expressing that a a view al., Dixon, et HARRIS leaves no room for party his own success before should suffer argu- for Board reconsideration agency. thereafter, Board, or, they ments lost before the grounds not resolved to seek court review on by According to our en banc order of October consequence, 13, 1981, review. As a the first court was “remanded this case to the Board Dixon, al., saying et certify, he is precluded in effect that pro with directions to nunc tunc as of they judicial review of issues August from Initiative Seven for inclusion court, permitted even Ordinarily, were never though, they to advance on the November in should ballot.” end, they aggrieved reversing agency are still as rulings, in the administrative we merely before the when first went declare the law and remand for of our decision. applies agency proceed Accordingly, Judge light Board. HARRIS justify Liquors, judicata against See Jameson’s res bar Inc. v. District of Co Board, Beverage directly ordering lumbia Alcoholic Initiative Seven this court’s Control D.C. ballot, App., (1978); despite A.2d the fact that traditional- Hill v. Dis onto the Unemployment ly judicata applicable Compensation trict if an issue has D.C. res J., App., (1973) (Harris, presented. A.2d con been—or could have been— curring Inc., part Bros., D.C.App., dissenting part). 439 v. Snider Henderson banc). (1981) (en Judge at A.2d HARRIS states: summary, properly expectation In this court could Because of the would that we ballot if Dixon, onto the have ordered Initiative Seven we petition, dismiss our et al.’s October argu- all the the merits of had not reached remand to the Board with directions only Dixon, al., certify make. If we to et cared to Initiative for inclusion on the ments were Seven arguments entirely peti- going 81- proper. ballot No. Intervenor’s to reach the advocates, simply simply Judge we tion for fail- could not be entertained as HARRIS Judge party-intervenors, appeal may HARRIS asserts that advance on analysis this “would afford an power arguments rejected, intervenor the the board as well ef fectively accepted. to convert as agency challenges into litigation renewed between the private par whether question 2. The next ties to the agency proceeding.” Ante at Dixon, al, prejudiced et have their review mean That is an assertion without rights by docketing separately in No. 81— As ing. clear, Dixon, the statute makes et arguments they 978 the lost before al., are party to. the litigation just as much Board, than all their ar presenting rather Board, as Dankman or the in contrast with guments they duly in No. 81-977 in which persons of lesser interest who must seek not, intervened. I conclude for we have leave of court to intervene under D.C. consolidated the two cases and one “ App.R. 15(g). Furthermore, Dixon, as et order is at Although issue. ‘there al., were prevailing parties before the are two proceedings, separately carried on Board, very right their ap to intervene on docket, they one essentially so far peal reflects an interest potential inju any question legality as to the ” ry sufficient for standing to protect their Scofield, Board’s order was concerned.’ position in the exceptional context of an n.6, supra 382 at 213 U.S. 86 S.Ct. at 379 n.6 election case by using all legal available Board, (quoting Ford Motor Co. Labor arguments. They aggrieved are no less be 83 L.Ed. U.S. S.Ct. fore the court than they were before the (1939)). Board.16 rule, gen Under the as is Scofield Finally, prevailing party-intervenors erally proceedings, true of administrative are not in position expand to the litigation order, or the party supporting “the a Board beyond its original scope. They are limited intervene, party challenged, may while a to arguments presented to, and ruled party opposing portion a Board order or a upon Board; by, the they cannot raise a review.” N.L.R.B. v. may petition of it new question for the first appeal. time on Oil, and Atomic Workers Interna Chemical DeLevay v. District of Columbia Rental Ac- Union, (1st tional 476 F.2d Cir. Commission, commodations D.C.App., 411 1973). Dixon, al., con may et have been A.2d cerned that this court would characterize their effort for review of contentions the In summary, petition because a for re- rejected as an opposition portion view of a Board ruling puts the prevailing of the Board’s “order”. In that See id. party’s interests in jeopardy again, once case, require the court would file they because D.C.Code 1978 Supp., 1-§ a separate petition for review. 1108(p)(2) reflects legislative intent provide equal, expedited access to this court it, however, Dixon, As I see none of et for parties affected the Board’s ruling, I arguments al.’s in No. 81-978 reflects an Dixon, conclude al., prevailing et the Board “order” or a oppose effort law, reversed, they pre- should 15(g), App.R. declared the as to issues on which Board, leaving Dixon, supra, remanded to the al, it to et vailed before the they surely see Part III.A. pursuant injury this court for review re- have no less l-1108(p)(2) D.C.Code 1978 they if view of determinations lost before Board determined on remand that the initiative for re- Board. the threat of a Given supra. was valid. See note 11 view, This court can- equal presenting have an interest in reverse, properly remand, and order Initia- position. argument preserve ballot, thereby preclud- tive Seven onto the analysis ques- limiting his knowingly precluding Dixon, et order, aggrievement —indeed see — tion of n al., presented from review of the issues in No. n.19, aggrieve- ante in contrast suggesting otherwise, Judge 81-978. In HAR- to the Board ment and Dankman’s submission permit RIS in effect would court cut off court, HARRIS judicial rights guaranteed by review statute. injury away defines man’s the fundamental —Dank- judicial review is all threat —that about injury 16. If have a threatened here. right, sufficient for intervention of see D.C. a1., Dixon, were et Thus, claim portion separate of it.17 a was superfluous; intervention would have assert that They improperly. notarized sufficed. See N.L.R.B. v. Electric General 22,624 disquali- obtained Co., supra at 294. The fact et Dixon, that rejected be because fied should circulators al, separately arguments they docketed Willis, Director Trea- Executive Jo Ann Board, lost however, before the rather than Improved Committee surer the D.C. 81-977, adding them to No. no conse is of Initiative Seven —in Education to Promote quence. long As recog as court has notarizing the circulators’ —con- nized the unity proceeding by consoli represent spired with the circulators dating review, both petitions for it would be resi- bona fide public that et Dixon, al.’s, say precaution unfair that They allege also dents of the District. in filing a separate petition, rely instead of proviso in D.C. following Willis violated intervention, ing solely prejudice could public notary “no shall 1-501: Code rights.18 their review acknowledgments, ad- be authorized take or oaths, certify papers, perform minister IV. with connection matters official acts in any aL, may et Having Dixon, concluded that counsel, as attor- employed in which he is arguments rejected by raise any he be in in which ney, agent, or or nonetheless perceive any no Board error on depart- any of way interested before these, the grounds alleged. One how- ever, ments aforesaid.”20 requires discussion.19 Dixon, al.’s, ground previ- they may 17. its order on et concern be would reaffirm challenging portion ously rejected, it had misconceived of an since order in No. 81-978 understandable, ruling, always is whether, for its and the of the bases for it is clear law to one decision was analysis. legal, contention, expert, challenging rejected premised on prevailing party attacking agency’s is order merely rejected, advocating or is alternative arguments legal to the 19. I merit find no agrees. basis for an order with which he or she summary misleading, bill initiative statement Scofield, supra, Supreme I understand the proponents failed to or Court to mean that one does not timely statement contributors. file a verified is, sought “order” unless the he relief to some extent, withheld: provides: hybrid A situation occurs the Board when of the District of Co- The Commissioner portions complaint dismisses certain appoint power to such shall have lumbia number of notaries District, and issues an order on to that others. As public, residents of said portion in a which results remedial order place of or sole business whose or him, against charged party aggrieved; District, employment as, said within is located likewise, charging party aggrieved discretion, business of the Dis- his respect portion of the decision dismiss- Provided, ap- may require: trict pointment lic, such, under, That the complaint. “party” one in a Each is a notary pub- any person as such appeal, invariably consolidated granted and has been acceptance his or commission regard leave to intervene with performance of his duties there- or the portion of the order on the Board prevent disqualify or such shall not found in his favor. U.S. [Id. any person representing clients before from (footnote omitted).] S.Ct. at 377 departments States United District of Columbia or If the court holds that the erred in its Government elsewhere: Provided son so further, decision, per- That such basis for the but the court concludes that notary public appointed rejecting as a Board also erred in one or more arguments appears represent practice court clients be- advanced affirming department should is not remand the case rather fore such otherwise than engaged employ, the Board’s order on one grounds. and shall of these other Government departments Exchange of such See Securities Chenery Com admitted to the heads practice Corp., mission v. in accordance with the U.S. therein (1947) (Chenery regulations prescribed S.Ct. 91 L.Ed. 1995 rules for other );II Exchange persons attorneys Securities and who are admitted to Commission 80, 87-88, Chenery Corp., practice 318 U.S. 63 S.Ct. therein: I). provided further, notary public (1943) [Chenery L.Ed. It And shall That no however, acknowledg- likely, to take be authorized after remand I no other errone- concluded, perceive however, Board’s order. “that justify there was no evidence in the record show to law that would of interpretation ous a Jo Ann conspiracy between Willis Although Rule Board reconsideration. misrepresent legal others to the status of for ille- available the remedies 1607.9limits signatories peti the circulators to the is circulation, process avail- the criminal gal sup tions.” Board at 9. The Order record partici- illegally who pursue anyone able to ports Furthermore, if that conclusion. even po- signatures. The in of pated solicitation id, a violation of 1-501 would create the to inform process is available litical the by violation of Initiative Procedures Act the employed by about the tactics electorate re circumventing the circulators’ affidavit ad- And the sponsors. circulators and quirement, agree I do not with to those is available process ministrative Ms. ac proviso applies the to Willis’ rule for change the propose who would tions the before Board. the future. statute, proviso, by As I read the its aforesaid,” departments reference to “the dissenting: MACK, Judge, Associate governs only of de- actions notaries before partments of the United States Govern- I. ment, departments not actions before opinion au- (i.e., the opinion The lead supra. District of Columbia. note Congress Harris) is for governments significant indicated these by thored separate by purposes 1-501 by say. Conspicuous what does referring in separately, para- the second finding of the basic a discussion absence is graph statute, to both the United Ethics that of Elections and States Government the District of Co- such us indicates before “the evidence Moreover, lumbia Government. in the one di- process in of the initiative manipulation 1-501, case analyzing clearly the court direction, statutory rect violation proviso understood to mean that ... must signatures [challenged] ... was to protect against statute conflicts integri- preserve rejected in order practice depart- interest federal before ... petition process ty ensure] [and Herring-Hall- ments. See Hall’s Safe Co. v. followed.” statutory mandate be (1), Marvin Co. App.D.C. Safe 14- Ethics at Order Board Elections (holds applies statute to non-District as well also supplied). Conspicuous (emphasis notaries). according- District facts is a discussion by its absence ly, did not err in concluding that surrounding gathering events inapplicable here. of Initiative Sev- on the ballot.1 placement en’s

V. Taxpayer’s National Early year last Because the Board misapplied its own 1607.9, Union, organization, formed Rule concur a national in reversal of exempted ments, oaths, notary public certify from the papers, administer perform any The Commis- payment official acts in connection with the license fee. counsel, employed refund, hereby matters which he is attorney, any way sioner is authorized agent, may refunding or in which he be in prescribed law manner any depart- interested before taxes, any erroneously paid amount of ments aforesaid. erroneously paid under or collected fee notary public obtaining Each before his section. commission, thereof, and for each renewal hereby The District Columbia Council pay shall Collector of Taxes of regu- prescribe such rules authorized $10: District of Columbia a license fee of necessary carry out as it deem lations Provided, That no license fee shall be collect- chapter. purposes of this any notary public ed from the United States Government or the District in the service of opin- lead agree with the conclusion of Columbia Government whose notarial of Initia- ion solely duties are ficial no of- confined to Government timely filed so as vest tive Seven business; further, That provided And jurisdiction. notary fee shall be time collected 1,711 submitted On June Willis committee entitled the D.C. Committee 22,624 containing Initiative Improved promote Education to of each the Board. the back On Seven, an initiative similar to the one NTU that the circulator of signed by was an oath previously unsuccessfully promoted had the facts to which each petition. Among This committee was political California. “qualified a one swore was that he was registered pursuant February to a of the District of Colum- registered elector Willis, filing by Virginia Jo Ann a resident were nota- signatures All of these bia.” NTU, who, being employee as well as an of a Jo Ann Willis who had become by rized served as Executive Director and Treasurer on her 1981 and had noted notary May was newly-formed committee. She to do so applying she was application only person authorized to disburse mon- eligible sign petitions in order to be ey days for the committee. Ten after the of Initiative Sev- by circulated the backers filing, personally Willis submitted the Ini- en.2 approval by tiative for the D.C. Board Elections and Ethics. II. hired seven committee thereafter foregoing amply facts was a ma- the Board that there finding

non-Distriet residents to circulate grave so process the initiative nipulation of on the No- placed to have Initiative Seven and threat- statutory mandate as to violate circulators arrived vember ballot. These process. integrity of the electoral en Florida, Massachusetts, from such areas as process, administrative review of the our Michigan shortly North before and Carolina ac- agency’s affirm an required we are in a March 10. The seven were housed “(A) find it to be finding unless we tion or which, single the Board family dwelling discretion, an abuse arbitrary, capricious, found, purposes only. was used for transient with the in accordance otherwise not or arrival, supplied After their Jo Ann Willis law; (E) by substantial unsupported ... forms in registration them with mail voter 1-1510. evidence.” electors they qualify order that could accept Clearly, required we are 1-1102(2). Supp., under D.C.Code 1978 prov- here. It is not findings the circulators had collected Meanwhile judg- to substitute ince of courts 5,879signatures (i.e., before the forms some chosen a ministerial officer ment for that of executed). the circu- At least four of were fact. Citizens a certain to determine to vote in previously registered lators had of Elec- Rizzo v. Board to Recall Committee one, days six after jurisdictions other tions, Pa. 367 A.2d registration his voter by conduct of the artful The evidence political new signed petition organize Initiative Seven proponents which party in North Carolina. 22,000 is not here some obtained 22,624 collected These seven circulators ques- not opinion lead does disputed. 27,415 signatures given on behalf conduct; it does gravity tion They had left Initiative Seven delib- proponents [82.52%]. the fact that question the District June 11. On June knowingly hired circulators erately now-depart- picked up registered Willis electors personally qualified were not Columbia, re- which cards at registration ed circulators’ voter statute,3 that the actions by to be quired the Board. 1-1116(h)(2)(E)pro- notary appli- 3. D.C.Code 2. Facts as to the content of Willis’ part: pertinent vides in alleged by challengers in their cation were initia- sheets for an refuted Each sheet or brief before the Board and were not shall have at- They measure proponents tive or referendum of the Initiative. it, of submission at the time tached alleged by cross-petitioner also before Ethics, a statement of Elections Board made determined court and were not refuted. perjury, penalties in a form under signed circu- the Board “fatal”). for the here was not It chooses to focus proponents stage set the violation provisions of numerous (Rule on a narrowly regulation of Code requiring legitimacy of information “the failure of” 1008.9) provides representations registration qualified registered to be a circulator Moreover, process.4 does signature will not elector invalidate question the jurisdictions, fact that other It rejects elector. otherwise having when found evidence of “wholesale” explanation regulation the Board’s deception comprising “pattern definite so the isolated situ- promulgated to cover and clear” as “to make a mockery where, inadvertence, a few ations due to Law,” Election null declared [i.e., might be de minimis] Lebowitz, and void. In re Misc.2d circulators. unregistered obtained (1961), N.Y.S.2d cited in Citizens Against Gambling v. Dis- Legalized Citizens Against Legalized Gambling v. District of Columbia of Elections and trict of Ethics, Columbia of Elections and Ethics, supra. opinion The lead holds that 501 F.Supp. (D.D.C.), per cu aff’d interpretation is unreasonable Board’s (No. 80-2251, D.C.Cir., riam October law, and as a matter of and uses erroneous 1980). Thus, the Supreme Court reversing that error as a crutch for Pennsylvania noted in In has re Nomination decision. Cianfrani, Petition of 467 Pa. 359 A.2d 383 (1976), provisions fallacy position “the of the lead is that it of the election The relating laws nominating ignores requires form of the statute. statute petitions and the accompanying affidavits qualified that circulators be electors. The are not mere technicalities neces but are regulation promulgate Board could not sary prevent measures pre fraud and to specific requirements with the conflict serve the integrity the election process.” I find it distress- why the statute. That is See also Citizens Committee Rizzo to Recall opinion speak the lead can so cava- ing that Elections, v. Board of A.2d at supra 367 and unchal- lierly “validly promulgated 241—42. upon the regulation binding ... lenged extent, To I do not see the Board.” instead, lead opinion, chooses court in the ruling the federal district up (about throw “standing” barrier Gambling (as validity which case say later) I will more essentially (or avoiding the to be to the lead regulation) helpful most basic issue before court, suggest court (except deception Ferren’s) that the That in the position. v. H.J.B., (1943). E.g., lator of that the fol- District of Columbia contains lowing D.C.App., . .. 359 A.2d (E) that the circulator of such initiative or 1-1114(b)(3)(D) pro- Supp., D.C.Code qualified regis- referendum sheet is a vides: tered elector .... Columbia qualified The term elector is D.C. defined Any person who: Supp., 1-1102(2) Code 1977 (D) any as: makes statement false (A) citizen of [A] the United States who re- concerning any Board initiative, Elections and Ethics sides or is domiciled in the District who petition, recall or referendum or voting right does not claim residence or appended thereto shall be any is, Territory; (B) vote in State or $10,000 imprisoned or be not more than fined day election, eigh- will be on the of the next (1) year, or both. more than one not years old; (C) mentally teen 1-1107(b) provides: who is not Supp., D.C.Code incompetent adjudged by of com- a court registered person shall be unless— No petent jurisdiction. elector; .... he or she is a Clearly qual- none of seven 1-1114(a) provides: circulators were ified register, electors as none of them Any person resided . .. under who shall any District. A chapter “residence” must be a “fixed provisions and make of this permanent being qualifi- ... representations abode the time his or her false as to locality temporary holding voting a mere of existence ... elective of- or for cations fice, place sojourn- upon must be more than a of mere be ... shall conviction thereof $10,000 visiting.” imprisoned or transient D’Elia Marks Co. or be & fined not more than Lyon, D.C.Mun.App., years, than five both. A.2d not more case, requirements necessary those to as- culate circumstances of did find part process.” “wholesale” on the It would deception probity sure the which, has us to do so. concededly, foolhardy circulators been validity found to doubts as to the “[raise] III. F.Supp. at signatures themselves.” 501 Thus, in the in- this situation opinion attempts lead to avoid the [where fractions were “de minimis” and where by holding raised in this court basic issues suggestion (intervenors below) there was no of fraudulent be- challengers here, the court “noncompli- found that cross-petitioners have no havior] ance the circulator need not—as a mat- they prevailed raise issues because be long ter of signature Leaving law—invalidate the so aside for the moment the low. as criminal pursued.” proponents sanctions are Id. fact that the of the initiative (emphasis added). reasoning This circula argued in this court that the tracks the inter- reasoning of the Board’s tors were residents of the District of Co pretation lumbia, petition regulation. Indeed it is the the fact that the cases (if reasonable any) cross-petitioners construction which ers and were consolidated could validity regulation.5 purposes,” save the of its of this court “for all by order inter played petitioner The conclusions that the Board has fact that each has and the Harris) case (Judge party respondent “fast and loose” as a in the vened “[un]faithfully” (Judge Ferren) other, reasoning with the brought by here regulation challengers are are more- supported opinion the lead over of the the Board’s order “aggrieved” by irrelevant. action not been course, “whimsical,” no elector grasp. matter how cannot be used is difficult to Of Moreover, to process. improperly subvert the electoral if the Board has aggrieved ate is the proponents rejected of Initiative could not' contentions that the notarizations Seven executed, good regula- faith have upon improperly relied were tion initia summary since chose the devious route of or that a statement of the misrepresenting the status of the circula- tive or statements made circulators which, course, ag tors in pattern my misleading. of conduct Of the electorate view, this ignore. grieved court cannot afford to if this court reverses As in so do Supreme Pennsylvania violating regulation Court of has its own —and Cianfrani, (in 384), very noted conduct supra, ing gives imprimatur 359 A.2d at “the of stat policy reading challenged of the liberal and found to be violative v. Election emas- Cf. Lee District of Co- utory Code cannot be distorted to mandate.6 150, Organizations, Camp, 90 principle legal interpreta Inc. v. 397 U.S. It ais cardinal pre 827, (1970). tion that laws are to be construed as to In order to 25 L.Ed.2d 184 S.Ct. validity. Armstrong agency serve Paint & Varnish review of an decision: seek 315, Corp., 332- Works v. Nu-Enamel 305 U.S. fact; allege injury 1) petitioner must 33, 191, 199-200, (1938), 59 195 S.Ct. 83 L.Ed. 2) petitioner arguably within the must be 356, denied, 675, rehearing 83 305 U.S. 59 S.Ct. regulat- protected; or zone of interests to be (1939). L.Ed. 437 I do not see the Board’s question; and the statute in ed interpretation as war to be so unreasonable legislative 3) intent there must be no clear departure affording rant our from the rule of judicial review .... withhold agency’s interpretation. deference to an See clearly prongs ful- are The second and third Ethics, D.C. Pendleton v. Board Elections & petitioners, filled here. (1981); App., Snider v. District 433 A.2d 1102 electors, to be the zone of interests are within Review, Appeals of Columbia Board of voting regulations en- protected rules and 50, (1975); D.C.App., In re Ha 342 A.2d 51 integrity acted, greatest degree to insure worth, (1969); D.C.App., 447 Sellers 258 A.2d process. signature See Com- solicitation in the Columbia, D.C.Mun.App., 143 v. District of Report, on D.C. Council Committee mittee Paine, 96, (1958); Wright A.2d 98 110 U.S. 31, January Operations, 1979. As Government (1961); App.D.C. 768 289 F.2d third, Supp. 1-1510 1978 D.C.Code 1-1108(p)(2). D.C.Code 1978 provides appeals to this court of “an order agency in a contested standing of ... an three-pronged or decision 6. The test was enunci- Processing case....” ated in Association of Data Service

531 However, I). as the (1943) (Chenery Review, & D.C. Appeals lumbia Board of Chenery and as J., realized in Court (1980) (Ferren, App., 423 A.2d cases, recent “if recognized has court [an dissenting).7 upon action based determina agency’s] Moreover, illogical say that it is as if may ... not stand tion of law an order on appealing from challengers estopped the law.” agency has misconceived any bases the Board found because 462; I, Chenery supra at S.Ct. be a “suc deny them below as it would Department Thomas v. District of Columbia plaintiff right personal injury cessful” Labor, 164, 169 409 A.2d D.C.App., damages appeal insufficient award Un v. District of Columbia (1979); Gordon A simply he had “won” below. because Board, D.C. Compensation employment plaintiff not, reply when successful should (1979). A.2d App., below, be opponent of his appeal Fed Aktiengesellschaft v. Volkswagenwerk adverse to standing appeal rulings denied Commission, 390 Maritime U.S. eral him, when, opponent should his especially 19 L.Ed.2d 88 S.Ct. prevail on he would left without appeal, Telephone Asso legal recourse.8 Cf. Users that, regard note even if In this I would Commission, ciation v. D.C. Public Service adequate a “more basis” we needed denied, 415 App., (1973), cert. A.2d (which to sustain the Board’s order 933-34, 1448, 1449, 39 L.Ed.2d U.S. 94 S.Ct. not), the do have petitioners we do (C Telephone Company P had & interpretation of challenge the Board’s standing to was an appeal what asserted bearing and its increase).9 insufficient rate challenged peti- Willis’ notarization solely legal It on a tions.10 rested determi- IV. and, therefore, nation we that, The lead also even if opinion rules holding on that issue reverse standing is this af- granted, court cannot may also affirm the Board’s order but substituting firm the action by Board’s of especially light true in that basis. This is adequate what it considers to be more Rule not a Board the fact that 1—501 is § basis for Ex- that action. Securities & such, general provision. As notary but a change Corp., Commission v. 332 Chenery inter- less to the Board’s we owe deference 194, 196, 91 L.Ed. U.S. 67 S.Ct. it would a Board of than we to pretation II); Ex- (Chenery & proce- Securities rules and interpretation of its own Society change Corp., Capitol Commission v. Restoration Chenery dures. See Hill the of 87-88, Zoning 87 L.Ed. Commission of District U.S. 63 S.Ct. v. III regard as set in Part agree issue forth sis I would the dissent with Appeals opinion. in Lee v. of District of Columbia Board of that Review, supra. & case a Board The involved ruling pro- obligated to landlords were decisions of this court of the other standing 9. Neither vide services to their tenants. essential ruling appeal Dis regarding of a to majority (the judges of this court same appo agency administrative or board trict here) comprised original majority the division v. a case like Basiliko here. This is not site petitioners’ standing appeal denied the to Columbia, of D.C. of the District Government had, after decision because District nonparty App., (1971), to where a 283 A.2d 816 to, discretion, decision, pro- in its elected stay sought to an order of action below those vide services itself. The court reasoned Condemnation, analogous nor is of petitioners “injury in had suffered no Association, supra, Telephone where Users fact,” This the same barrier advanced here. phone entity service not subscribe which did petitioners any left against recourse without appeal sought to a rate increase. legally only party which could (Fer- provide bound to the services. Id. at 219 determinations, re- those Two other Board ren, J., dissenting). summary misleading garding of nature made the circula- and statements statement disagree view of IV of 8. While I with Ferren’s and, such, factually we as based tors al.’s, the merits in Part of claims give them. due must deference analy- agree concurring opinion, I his his with housed, registered organized circu- Columbia, (1977), D.C.App., A.2d lators, grounds, they Associ- but after returned on other Citizens overruled her as to their to Willis swore to Georgetown Zoning Commission ation of Thus, was Columbia, elector status. she di- D.C.App., qualified the District of of creating the facts about rectly involved A.2d swore thereafter circulators a circulator 1003.4(e)requires Rule her. state- sign, penalties perjury, under rejected 1- petitioner’s § he is a elector The Board ment that Willis, law, a matter end, ruling, as To that Jo Ann 501 contention District. department sub- not a May 1981, was Notary as of notarized government purposes 1,711 each of the United States mitted contrary of D.C. 1-501. This conclusion pertinent language Board. surrounding reads, history purposes follows: 1-501 Code therefore, and, I would adoption Commissioner ruling. the Board’s reverse appoint power shall have Columbia public, number of notaries residents such passed by 1-501 was place District, sole whose of said or changed in Congress in and has not within employment or is located business time of its way material At the any since. as, discretion, District, said in his in ac- governed the District was passage require: business of the District Act of Organic cordance Provided, any appointment That the Act, the District was 102. Under the Stat. ac- public, as such or the person notary board, two by a governed three-member such, or his ceptance of commission President, appointed by the whom were thereunder, performance the duties Senate, and the with the consent of the per- such disqualify prevent shall not officer of the of whom was an active third any clients before representing son from Congress had Corps Engineers. Army departments of the United States legislate complete authority sole of Columbia Government the District matters, municipal “the District further, provided or elsewhere.... And mere admin- confined to government [was] public notary that no shall be authorized v. Dis- Railroad Metropolitan istration.” to take administer acknowledgments, Columbia, 1, 7, 10 S.Ct. trict of 132 U.S. oaths, certify papers, perform offi- pro- (1889). There was no 33 L.Ed. 231 acts in with matters in cial connection franchise; all taxes made for the vision counsel, attor- which he is as employed deposited were collected District may be in ney, agent, or in which he and all claims Treasury States the United any of the any way interested before to be submitted to the District were against [Emphasis add- departments aforesaid. for pay- the Treasurer the United States ed.] District, effect, then, the ment. department. was not in was a federal proviso The last § original There in the bill. cluded (District Home Rule the advent of With however, bill, strong opposition and Govern- of Columbia Self-Government to act permitting notaries many feared Act, No. 93- Reorganization Pub.L. mental be en also they might in matters where at D.C. codified (1973), 87 Stat. “open the doors attorneys would gaged -171), Con- 1-121 to §§ Code Co. v. fraud and Hall’s Safe deceit.” to exclude intended gress could App. (I), 31 Herring-Hall-Marvin Co Safe provi- from of Columbia the District Thus, proviso the last D.C. the limited granting 1-501. In sions was added. delineat- clearly self-government, right of which would control areas of federal rendered ed the Clearly, the of Ms. Willis actions not have intended extant. It could remain party agent her an and/or an interested insures provision hired, abrogate 1-501. purposes She integrity of public processes, electoral otherwise, not be tainted a less shall abusing notary public than disinterested applicable; the

trust. Therefore 1-501 is illegal

notarizations and the

void. Riz See Citizens Committee Recall

zo, supra 242 — 43. ruling would affirm the of the Board

rejecting and would reverse

the Board’s ruling that D.C.Code 1-501 is to this case. inapplicable Ethel D. STARR.

In re ESTATE of

Appeal Joyce H. SARGENT.

No. 80-1144. of Appeals. Columbia Court

Argued March

Decided Feb.

Case Details

Case Name: Dankman v. District of Columbia Board of Elections & Ethics

Court Name: District of Columbia Court of Appeals

Date Published: Oct 13, 1981

Citation: 443 A.2d 507

Docket Number: 81-977, 81-978

Court Abbreviation: D.C.