Harry R. JACKSON, Jr., et al., Appellants, v. DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, Appellee, and District of Columbia, Intervenor-Appellee.
No. 10-CV-20.
District of Columbia Court of Appeals.
Argued en banc May 4, 2010. Decided July 15, 2010.
One can have no doubt, after reading the transcript, that T.C.‘s parents were profoundly disappointed by the outcome of their son‘s case, and that they believed that the system did not work fairly for T.C. For the reasons stated in the opinion of the court, I agree that the evidence was sufficient to support the judgment and that there is no legal basis for reversal. For the reasons stated in this concurring opinion, however, I can appreciate the parents’ concerns, and I find them understandable. There are no perfect trials, but this one could have been better.
Rudolph McGann filed a brief for appellee.
Todd S. Kim, Solicitor General for the District of Columbia, with whom Peter J. Nickles, Attorney General for the District of Columbia, Donna M. Murasky, Deputy Solicitor General, and Stacy L. Anderson, Assistant Attorney General, were on the brief, for intervenor-appellee.
D. Jean Veta, Thomas S. Williamson, Jr., Paul A. Ainsworth, Anne Y. Lee, Washington, DC, Richard Anthony Lopez and Jonathan Herczeg, Washington, DC, filed an amicus curiae brief for Trevor S. Blake, II, Jeff Krehely, Amy Hinze-Pifer, Rebecca Hinze-Pifer, Thomas F. Metzger, Vincent N. Micone, III, Reginald Stanley, Rocky Galloway, D.C. Clergy United, Lambda Legal Defense and Education Fund, Inc., and the Campaign for All DC Families, in support of appellees.
Miriam R. Nemetz and Jasmin Sethi, Washington, DC, filed an amicus curiae brief for the American Psychoanalytic Association, the National Association of Social Workers, the National Association of Social Workers, Virginia Chapter, the National Association of Social Workers, District of Columbia Chapter and the National Association of Social Workers, Maryland Chapter, supporting appellees.
Before WASHINGTON, Chief Judge, and RUIZ, REID, GLICKMAN, KRAMER, FISHER, BLACKBURNE-RIGSBY, THOMPSON and OBERLY, Associate Judges.
THOMPSON, Associate Judge:
The specific issue before us in this appeal is whether the District of Columbia Board of Elections and Ethics (the “Board“) acted lawfully when it rejected appellants’ proposed initiative measure on the ground that the measure would authorize, or have the effect of authorizing, dis
Appellants’ challenge focuses on the validity of Council legislation that requires the Board to refuse to accept any proposed initiative that would authorize, or have the effect of authorizing, discrimination prohibited by the Human Rights Act (a requirement that we refer to herein as the “Human Rights Act safeguard“). Specifically, appellants contend that, in establishing that requirement, the Council overstepped its authority and acted in contravention of the District of Columbia Charter. Alternatively, appellants contend that the proposed initiative would not authorize or have the effect of authorizing prohibited discrimination. We disagree with both contentions, and we therefore affirm the Superior Court‘s rulings that the Council acted lawfully in imposing the Human Rights Act safeguard and that the Board correctly determined that the safeguard required it to reject the proposed initiative. As we go on to explain, we reach this result because (1) resolution of this appeal turns on what legislative authority the Council intended to share with the people of the District of Columbia when it passed the Charter Amendments Act (the “CAA“); (2) the Human Rights Act safeguard is not inconsistent with the Council‘s intent as conveyed by the language of the CAA; (3) this court owes substantial deference to the Council‘s legislative interpretation that the Human Rights Act safeguard carries out the intent of the CAA; (4) the relevant history convinces us that the Council could not have intended to authorize, as a proper subject of initiative, any initiative that would have the effect of authorizing discrimination prohibited by the Human Rights Act; (5) the Home Rule Act gave the Council authority to direct the Board, through the legislation that the Council passed to implement the CAA, to refuse to accept an initiative that would authorize prohibited discrimination; and (6) the Board correctly determined that the proposed initiative would have the effect of authorizing such discrimination. On the
I. Factual and Procedural Background
On May 5, 2009, the Council passed the Jury and Marriage Amendment Act of 2009 (“JAMA“). D.C. Act 18-70, 56 D.C.Reg. 3797 (May 15, 2009). JAMA amended the District‘s marriage laws to provide that the District will recognize lawful, same-sex marriages entered into in other jurisdictions. See
On September 1, 2009, appellants—Harry Jackson, Jr., Robert King, Walter Fauntroy, James Silver, Anthony Evans, Dale Wafer, Melvin Dupree, and Howard Butler—filed with the Board their proposed “Marriage Initiative of 2009,” which is the subject of this appeal. Through the proposed initiative, appellants sought to undo JAMA by amending Title 46, Subtitle I, Chapter 4 of the
In the meantime, the Council adopted the Religious Freedom and Civil Marriage Equality Amendment Act of 2009 (the “Marriage Equality Act“) upon its second reading on December 15, 2009. D.C. Act 18-248, 57 D.C.Reg. 27 (Jan. 1, 2010). This legislation, which became effective as D.C. Law 18-110 on March 3, 2010, see 57 D.C.Reg. 1833 (Mar. 5, 2010), expanded the definition of marriage in the District to include same-sex couples: “Any person may enter into a marriage in the District of Columbia with another person, regardless of gender, unless the marriage is expressly prohibited by” District law.
By the effective date of the Marriage Equality Act, the Superior Court had ruled on the cross-motions for summary judgment in this litigation. On January 14, 2010, the court granted the District‘s motion for summary judgment, rejecting appellants’ argument that the Human Rights Act safeguard provision is an invalid restriction on the right of initiative and agreeing with the Board that appellants’ proposed initiative would authorize discrimination. This appeal followed. We ordered that the appeal be heard en banc and granted motions by amici to file briefs.
II. Legal Framework
An understanding of the powers of the Council under the Home Rule Act, of the District Charter amendment that created the rights of initiative and referendum, and of the nearly contemporaneous legislation that the Council passed, is critical to our resolution of this appeal. Accordingly, we describe these matters in some detail.
A. The Home Rule Act
The Constitution vests Congress with the authority “[t]o exercise exclusive Legislation” over the District.
Under the Home Rule Act, the Council is empowered to pass legislation by a majority vote after two readings, at least thirteen days apart. See
Part E of Title VII of the Home Rule Act set forth amendments to the District of Columbia Election Act,
B. The Charter Amendment Act
The legislative history of the Home Rule Act shows that Congress considered including in the Act a provision that would have directly conferred on the people of the District the power to propose and enact legislation through an initiative process. See Home Rule Legislation: Hearing Before the Comm. on the Dist. of Columbia on S. 1603 and S. 1626, 92d Cong. 161 (1971) (hereinafter, “Hearing on S. 1603 and S. 1626“). As finally enacted, however, the Home Rule Act did not provide for the power of initiative (or of referendum). Section 303 of the Act did, however, provide that the Charter may be amended “by an act passed by the Council and ratified by a majority of the registered qualified electors of the District voting in the referendum held for such ratification.”
The CAA, codified at
C. The Initiative Procedures Act
On April 10, 1978, a month after the CAA became effective, the Council introduced implementing legislation as Bill 2-317. D.C. Council, Comm. on Gov‘t Operations, Report No. 1 on Bill 2-317 at 1 (May 3, 1978) (hereinafter, “IPA Report“). Many of those who testified before the Council on the bill expressed support for a human rights safeguard in the implementing legislation, and the Committee Report notes that, subsequent to the public hearings on the bill, the Council received “myriad telephone calls” in support. IPA Report, at 4-6. Bill 2-317 was reintroduced as Bill 3-2 in January 1979. Convention Ctr. I, 399 A.2d at 553; D.C. Council, Comm. on Gov‘t Operations, Report on Bill 3-2 at 1 (Jan. 31, 1979). The Council approved Bill 3-2, including the Human Rights Act safeguard, as the Initiative, Referendum, and Recall Procedures Act of 1979 (the “IPA“), which became law on June 7, 1979. D.C. Law 3-1, 1979 & 1980 D.C. Stat 7.9
D. The Human Rights Act
In 1973, the pre-Home Rule District of Columbia Council promulgated Title 34 of the District of Columbia Rules and Regulations, known as the “Human Rights Law” (34 DCRR §§ 1.1-35.3 (1973)). Reg. No. 73-22, 20 D.C.Reg. 345 (Nov. 17, 1973). Through the Human Rights Law, the pre-Home Rule Council declared that “[e]very individual shall have an equal opportunity to participate ... in all aspects of life,” 34 DCRR § 9.1, and it announced an intent “to secure an end ... to discrimination for any reason other than that of individual merit, including, but not limited to discrimination by reason of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, matriculation, political affiliation, physical handicap, source of income, and place of residence or business.” Id. § 1.1. The pre-Home Rule Council declared that it was using its “prerogative to legislate broadly,” and that the Human Rights Law was intended to be “far-reaching.” D.C. Council, Econ. Dev., Labor & Manpower Comm., Report on Title 34 at 2 (August 7, 1973) (hereinafter, “Human Rights Law Report“). The pre-Home Rule Council was explicit that it adopted the Human Rights Law pursuant to its police powers, explaining that Title 34 “shall be deemed an exercise of the police power of the District of Columbia, necessary for the protection of lives, limbs, health, comfort and quiet of all persons and the protection of all property in the District of Columbia.” 34 DCRR § 1.3.10
The Human Rights Act, which the Council adopted on July 26, 1977, “has remained substantially unchanged since 1977, having been amended only to add new classes to the list of those already protected by the Act.” Blodgett, 930 A.2d at 218 n. 4. The Act continues to provide that “[e]very individual shall have an equal opportunity to participate ... in all aspects of life, including, but not limited to” those aspects specifically described.
III. The Parties’ Contentions
Appellants contend that by refusing to accept their proposed initiative, the
IV. Analysis
A. The Human Rights Act Safeguard Is Consistent with the Intent of the CAA.
We begin our analysis with the observation that, although District citizens’ right of initiative is “very broad,” Hessey, 601 A.2d at 12, it can be no broader than the Council intended when it initiated legislation to share its direct legislative authority with the electorate. This is an important point, which reflects the fact that the people‘s right of initiative in the District is quite different from the right of initiative in other jurisdictions.14 In other jurisdictions, it is the people who, through state constitutions, have conferred rights on the legislature, but have reserved general legislative power to themselves as well.15 By contrast, in the District, through section 303 of the Home Rule Act, Congress gave a broad grant of legislative power to the Council alone (subject to specified restrictions set out in Title VI,
1. The Human Rights Act Safeguard Is Not Inconsistent with the Relevant Language of the CAA, Which is Ambiguous.
a. The Definition of “Initiative”
The words used in a statute “are the primary, and ordinarily the most reliable, source of interpreting the meaning” of the statute. Pub. Citizen v. U.S. Dep‘t of Justice, 491 U.S. 440, 454-55, 109 S. Ct. 2558, 105 L. Ed. 2d 377 (1989); Brizill, 911 A.2d at 1216 n. 8 (“The primary and general rule of statutory construction is that the intent of the lawmaker is to be found in the language that he has used“). Thus, in our effort to determine the Council‘s intent, we turn first to the language of the CAA. As already described, the definitional section of the CAA defines the term “initiative” as “the process by which the electors of the District of Columbia may propose laws (except laws appropriating funds) and present such proposed laws directly to the registered qualified electors of the District of Columbia for their approval or disapproval.” Id. § 1-204.101(a). This is the language on which appellants focus primarily, arguing that the “except laws appropriating funds” phrase is “the exclusive substantive limitation” on the right to initiate legislation.
Although on its face this language may appear to denote that there is but one limit on use of the initiative process, the context shows that this is not the case. The Charter amendment that established the right to initiative must be read in conjunction with the Home Rule Act, which, although conferring on the Council broad legislative authority, makes clear that the legislative authority is subject to limits implied by the United States Constitution and to the enumerated limits on that legislative authority that Congress set out in Title VI of the Home Rule Act. See
b. The Council‘s Authority to “adopt acts as are necessary to carry out the purpose” of the CAA
The other relevant language of the CAA is section 1-204.107, the CAA provision that directed the Council to “adopt such acts as are necessary to carry out the purpose of this subpart within 180 days.”21 This language is in marked contrast to the counterpart language used in the bill that Councilmember Hobson introduced on January 3, 1977 (Bill 2-2, which, as amended, became the CAA). Bill 2-2 directed that “[t]he Council of the District of Columbia shall provide the manner in which petitions shall be circulated, presented and certified and measures submitted to the electors.” See D.C. Council, Comm. on Gov‘t Operations, Report No. 1 on Bill 2-2 at Attachment A 4 (March 16, 1977) (hereinafter, “CAA Report“). The CAA “necessary to carry out the purpose” language also is in stark contrast to the language used in the bills that were introduced in Congress (bills that culminated in passage of the Home Rule Act) that would have created a right to initiative and mandated the Board (not the elected Council)
That being the case, the additional “restriction” that the Council imposed through the Human Rights Act safeguard is not manifestly contrary to the “acts as are necessary to carry out the purpose” language of section 1-204.107.
Focusing more particularly on the word “purpose” in the “necessary to carry out the purpose” clause of section 1-204.107, appellants argue that the sole purpose of the CAA was to establish the right of initiative and referendum and that, by authorizing the Council to enact legislation to carry out that purpose, the CAA must be understood to have authorized the Council to do no more than to adopt rules to facilitate citizens’ use of the new power. However, they cite no support for their view that the CAA referred only to this mechanical purpose rather than to the concerns and objectives that motivated the Council to pass the act that became the CAA.25 We deem it significant that the
That said, we agree with the District that our role is not to second-guess the Council‘s judgment and to decide whether there is a sufficiently strong connection between the purpose of the CAA and the Human Rights Act safeguard. The “degree of [the safeguard‘s] necessity, the extent to which [it] conduce[s] to the end, the closeness of the relationship between the means adopted and the end to be attained, [were] matters for [the legislature‘s] determination alone.” Comstock, 130 S. Ct. at 1957. To be “necessary to carry out the purpose” of the CAA, it was not required that the Human Rights Act safeguard be absolutely necessary to enable the initiative and referenda processes to be launched.28 To conclude that the Human Rights Act safeguard is not inconsistent with the CAA, it is enough that we can conclude (as we do) that, on its face, the Human Rights Act safeguard is not manifestly contrary to the “purpose” of the CAA.
In short, analysis of the text of the CAA does not enable us to agree with appellants that the Council contravened the express language of the CAA in enacting the Human Rights Act safeguard. And, quite the contrary, other factors persuade us that the Council acted in a manner consistent with its intent when it passed the CAA.
Although the language of the CAA does not tell us whether the Council intended that the CAA-implementing legislation could set out additional limitations on the right to initiative, what the Council did in enacting the IPA provides an authoritative interpretation of the intent and meaning of the CAA. This follows from the principle that “a contemporaneous legislative exposition of the Constitution [or, by analogy, the Charter Amendments] when the ... framers ... were actively participating in public affairs, acquiesced in for a long term of years, fixes the construction to be given [the Constitution‘s] provisions.” Eldred v. Ashcroft, 537 U.S. 186, 213, 123 S. Ct. 769, 154 L. Ed. 2d 683 (2003) (quoting Myers, 272 U.S. at 175); see also Printz v. United States, 521 U.S. 898, 905, 117 S. Ct. 2365, 138 L. Ed. 2d 914 (1997) (“[E]arly congressional enactments provide contemporaneous and weighty evidence of the Constitution‘s meaning[.]“) (citations and internal quotation marks omitted). The principle that the Supreme Court re-affirmed in Eldred is squarely applicable here, because the Council that authored and, in April 1978, began consideration of the bill that became the IPA was largely the same Council that passed the CAA in May 1977.29 We agree with the
That is not to say that we must accept any provision that the Council enacted as part of the IPA; we have not hesitated to strike down a provision of the IPA where it squarely conflicted with a provision of the CAA. See Price v. District of Columbia Bd. of Elections & Ethics, 645 A.2d 594, 596-99 (D.C. 1994) (striking down IPA provision that required the Board to use the November 1989 voter registration roll to calculate the number of signatures required for an initiative or referendum petition where the specific terms of the CAA required use of the December 1988 voter registration roll, because “to the extent any IPA provision is inconsistent with the Charter Amendments, the latter controls“); see also INS v. Chadha, 462 U.S. 919, 944, 103 S. Ct. 2764, 77 L. Ed. 2d 317 (1983) (explaining that longstanding acceptance will not “save [a practice] if it is contrary to the Constitution“). But where, as here, the relevant CAA provisions admit of more than one meaning, the Council‘s legislative construction of those provisions when it drafted the IPA less than a year after it passed the CAA is entitled to substantial weight. Myers, 272 U.S. at 113, 174-75.32 Thus, we must begin with a presumption that the Human Rights Act safeguard that the Council enacted as part of the IPA is consistent with the CAA.
That there was more than one possible interpretation of the relevant provisions of the CAA was made evident at the outset, when, during the debate on the IPA, both the Corporation Counsel and the General Counsel to the Council advised that the Council did not have the power to impose the Human Rights Act safeguard.33 But
3. We Accept the Council‘s Interpretation of the CAA As Reflected in the IPA Because It Is Consistent with the Concerns and Objectives That the Council Contemporaneously Emphasized as Having the “Highest Priority.”
The District of Columbia Charter is a “constitutional analog.” Wash. Home Ownership Council, 415 A.2d at 1367 (Gallagher, J., concurring) (internal quotation marks omitted). As the Supreme Court reasoned long ago in Myers, in determining ultimately whether to accept the legislature‘s near-contemporaneous construction of an ambiguous constitutional provision, it is important to understand the context in which the framers did their work and the concerns that animated them.35 Accordingly, we look to the con
Almost immediately after passage of the original version of the CAA in May 1977, the Council turned its efforts toward introducing and passing (on July 26, 1977) a bill that re-enacted the Human Rights Law as the Human Rights Act of 1977.36 As described above, the Council explained that it intended the re-enactment to “forcefully convey to the executive and administrative agencies of the District Government the importance which the Council places on vigorous enforcement of its provisions” and to reinforce and underscore the Council‘s intent that the District‘s human rights law be given the “highest priority” and “be read in harmony with and as supplementing other laws of the District.” Human Rights Act Report, at 3. The Council emphasized, inter alia, its objective to reinforce the principle that the Human Rights Law was intended as a supplement to every District licensing and benefit scheme—to make it “unequivocally clear, for example, that a licensed establishment which has been found to discriminate in violation of the Act, could have its license suspended, revoked, or otherwise restricted for that reason.” Id.37 The Council explained,
because there was no strong Executive; rather, Congress was given the power of appointing certain executive officers and also exercised the power of removal. See 272 U.S. at 110, 116, 47 S.Ct. 21. “The debates in the Constitutional Convention indicated an intention to create a strong Executive” and to specify “many of his important functions so as to avoid the humiliating weakness of the Congress during the Revolution and under the Articles of Confederation.” Id. at 116-17, 47 S.Ct. 21 (citation omitted). Nevertheless, the Constitution does not specify that the President may act alone to remove officials whose terms are not specified. The First Congress, however, passed laws that reflected its “legislative construction” that the President does have the power of removal of officers appointed with the advice and consent of the Senate. Id. at 113, 153, 47 S.Ct. 21. The Court‘s opinion makes clear that it accepted that legislative construction, by members of the First Congress who were among the framers of the Constitution, because the interpretation was consistent with the concerns and objectives that guided the framers. Id. at 115-37, 164, 47 S.Ct. 21 (setting out various statements by members of the First Congress, and concurring in the interpretation that carried the day, because “to hold otherwise would make it impossible for the President, in case of political or other differences with the Senate or Congress,” to act as a strong Executive).
We believe it is reasonable to assume that the Council did not come by these strong views only in June 1977 (when the bill that became the Human Rights Act was introduced), and that Council members held these views as they passed the original version of the CAA the previous month, in May 1977. And, in any event, the Council had forcefully articulated these views before it passed the amended version of the CAA (on November 1, 1977) that was presented to voters. This history and the strong language that the Council used when it re-enacted the District‘s human rights law (and when it included the Human Rights Act safeguard in the bill that the Council Committee on Government Operations reported to implement the CAA) inform our analysis. In light of them, we find it inconceivable that the Council would have intended to permit individuals to use the initiative process to circumvent the human rights law, which the Council had just affirmed had the “highest priority,” Human Rights Act Report, at 3, and which, we have recognized, “was enacted to aid ... the public at large.” JBG Props., Inc. v. District of Columbia Office of Human Rights, 364 A.2d 1183, 1185 (D.C.1976).39 For this reason, we are persuaded that the Council would have understood the human rights law as “supplementing” the CAA, Human Rights Act Report, at 3, and as an implied
Our recognition of this implied Human Rights Act safeguard does not portend a dilution of the important right of the electorate to propose laws. In the thirty-plus years since passage of the IPA, the Council has never attempted to impose any further legislative limitation on the right to initiative or referendum. The fact that it has not done so weighs heavily against the possibility that any further restrictions on the right of initiative are implied in the CAA.42
The legislative history of the IPA reflects that when the Council set about crafting provisions to carry out the purposes of the CAA, it focused on the Supreme Court‘s opinion in Reitman, which the Committee on Government Operations Report discussed in some detail. IPA Report, at 9-11. In Reitman, the Supreme Court affirmed a ruling of the Supreme Court of California striking down, as violative of the Equal Protection Clause of the
Having studied Reitman, the Council Committee on Government Operations came to the view that for the Board to accept an initiative or referendum that would have the effect of discriminating, would involve the District government in condoning and assisting with discrimination.43 The Council cited the language in Reitman that “the initiative process may not be used to place the Government in the posture of affirmatively condoning discrimination” and that “when the Government‘s official position of neutrality toward protected minority classifications (such as those identified in the Human Rights Act of 1977) is removed and a policy of discrimination is imposed, such measures will fail.” IPA Report, at 9. Accordingly, the Committee recommended including in the IPA a mandate that the Board not accept any initiative or referendum that would authorize discrimination or have the effect of authorizing discrimination prohibited by the Human Rights Act.44
The Council‘s acceptance of the Committee‘s recommendation was consistent with the “highest priority” objective that the Council expressed during the same time period when it crafted the CAA. Because the Human Rights Act safeguard is consistent with that objective, we accept the Council‘s legislative interpretation, reflected in the IPA, that the safeguard im
B. Section 752 Gave the Council Authority to Direct the Board to Refuse to Accept Initiative and Referendum Measures That Would Authorize or Have the Effect of Authorizing Discrimination.
We further conclude that the Council was not obliged to allow initiatives that would have the effect of authorizing discrimination prohibited by the Human Rights Act to be put to voters, and then to repeal them, or to wait for them to be challenged as having been improper subjects of initiative, should they be approved by voters. Rather, the Council could legislate, as it did through the IPA, that the Board must refuse to accept initiatives and referenda that would authorize prohibited discrimination. We reach this conclusion because the CAA did not provide the Council its exclusive grant of authority to enact laws on matters relating to the initiative and referendum process. Rather, as already described, section 752 of the Home Rule Act conferred on the Council, “[n]otwithstanding any other provision of this [Act] or of any other law, ... authority to enact any act or resolution with respect to matters involving or relating to elections in the District.”
As a provision of the Home Rule Act not subject to amendment by the Council or by the voters of the District, section 752 remains one of the provisions governing District affairs. See
At the same time, “a statute generally should be read to give effect, if possible, to every clause,” Heckler v. Chaney, 470 U.S. 821, 829, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) (citation and internal quotation marks omitted), and it is a “basic axiom ... that courts should construe all legislative enactments to give them some meaning[.]” Rosado v. Wyman, 397 U.S. 397, 415, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970). Adhering to these basic rules of construction, we decline to interpret the Council‘s authority under section 752 of the Home Rule Act in a way that effectively would mean that the initiative right, conferred through the Charter-amending procedures also set out in the Home Rule Act, could be rendered meaningless, or in a way that would so diminish the initiative right as virtually to nullify it. This “basic axiom” articulated in Rosado is especially applicable here since the right of initiative is “a right that Congress affirmatively approved.” See Stevenson, 683 A.2d at 1375 (“[I]t is not without significance that Congress affirmatively approved the Charter Amendments Act after passage by the Council.“). Accordingly, we must, if we can, harmonize section 752 and the CAA. We can do so, as follows.
At the time the Home Rule Act was passed, the Election Act mandated that the Board would be an independent agency. Specifically, the Election Act provided (and still provides, see
For all the foregoing reasons, we are unpersuaded by appellants’ contention that the Council either overstepped its authority or acted in contravention of the CAA when it imposed the Human Rights Act safeguard of the IPA.51
C. The Proposed Initiative Would Authorize or Have the Effect of Authorizing Discrimination Prohibited by the Human Rights Act.
Appellants further contend that even if the Human Rights Act safeguard is valid, their proposed “Marriage Initiative of 2009” does not run afoul of the restriction. They assert that this court‘s decision in Dean v. District of Columbia, 653 A.2d 307 (D.C.1995), establishes “conclusively” that the Human Rights Act “does not reach the marital relationship.”
The Board urges us to uphold its determination, arguing in its brief that the proposed initiative (providing that “[o]nly marriage between a man and a woman is valid or recognized in the District of Columbia“) would render not only JAMA but also the Marriage Equality Act “null and void and would consequently strip all same sex married couples of their attendant rights and responsibilities of marriage in the District of Columbia” based solely on the “gender and/or sexual orientation of the spouses.” In its November 17, 2009 Memorandum Opinion and Order, the Board distinguished Dean and reasoned as follows:
While neither the HRA [i.e., the Human Rights Act] nor its legislative history explicitly mentions same-sex marriage, it is without question that the HRA must “be read broadly to eliminate the many proscribed forms of discrimination in the District.” Since JAMA‘s enactment, the District recognizes same-sex marriages that have been properly entered into, performed, and recognized by other jurisdictions. This did not exist when Dean was decided. Consequently, couples who fall within JAMA‘s purview are entitled to the same benefits of marriage that are afforded heterosexual married couples, and the denial of these benefits to married couples on the basis of the sexual orientation of the individuals who comprise the couples now constitutes a “proscribed form of discrimination.” It is clear that this result is the intent of the Council, which voted 12-1 to pass JAMA. The Initiative seeks to deny recognition to JAMA marriages on the basis of the sexual orientation of the individuals who comprise the couples. As a result, the Board finds, and both the District‘s Attorney General and General Counsel for the Council agree, that the Initiative authorizes or would authorize discrimination proscribed by the HRA and is therefore not a proper subject for initiative.
Id. at 11.
We agree with the Board‘s interpretation of Dean, its view that the Human Rights Act analysis in Dean has limited continuing significance, and its conclusion that the proposed initiative would have the effect of authorizing discrimination on the basis of sexual orientation.52 In Dean, a
Turning to the Human Rights Act claim, the Dean court noted that the version of the Human Rights Act in effect at the time made it “an unlawful discriminatory practice” for one to “deny, directly or indirectly, any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodations,” if the denial is “wholly or partially for a discriminatory reason based on the ... sex [or] sexual orientation ... of any individual.” Id. at 318-19. The court acknowledged the appellants’ argument that “when the Marriage License Bureau, a place of public accommodation under the Clerk of the Superior Court, refuses to issue marriage licenses to same-sex couples, gays and lesbians are unlawfully denied an ‘equal opportunity’ to participate in marriage, an important ‘aspect of life.‘” Id. at 318. The court assumed, “without formally deciding,” that the Marriage License Bureau is a “place of public accommodation” (in which discrimination was specifically prohibited under the Human Rights Act). Id. at 319.53 The court further acknowledged that “[t]he Council un-
doubtedly intended the Human Rights Act to be a powerful, flexible, and far-reaching prohibition against discrimination of many kinds, including sex and sexual orientation.” Id. The court reasoned, however, that the Council “did not intend the Act to prohibit every discriminatory practice,” id., and went on to hold:
[W]e cannot conclude that the Council ever intended to change the ordinary meaning of the word “marriage” simply by enacting the Human Rights Act. Had the Council intended to effect such a major definitional change, counter to common understanding, we would expect some mention of it in the Human Rights Act or at least in its legislative history.... There is none.... [A]s we have seen ... “marriage” requires persons of opposite sexes; there cannot be discrimination against a same-sex marriage if, by independent statutory definition extended to the Human Rights Act, there can be no such thing.
While the Dean court unambiguously concluded that the Marriage Bureau‘s implementation of the District‘s longstanding marriage statutes, and the definition of marriage reflected therein, did not amount to discrimination prohibited by the Human Rights Act, there is no dispute that the landscape has changed dramatically. Through JAMA and the Marriage Equality Act, the Council has both acknowledged and endorsed an expanded definition of marriage to include same-sex unions. As the briefs inform us, several other jurisdictions, too, currently authorize same-sex marriage. The question now is whether an initiative measure that would deny recognition to individuals who have entered or wish to enter into same-sex marriages in the District or elsewhere, and would deprive them of the benefits and obligations that come along with such recognition, would authorize or have the effect of authorizing discrimination on a basis prohibited by the Human Rights Act. We have no difficulty concluding that the proposed initiative would do so.54 The proposed initiative would require District government agencies and of-
fices that provide or administer an array of services, programs, and benefits otherwise available to married persons, to deny certain of those services, programs, or benefits to individuals who are partners to a same-sex rather than opposite-sex union.55 The initiative thus would take away from those individuals a civil right that the Council has seen fit to recognize and expressly allow, and its effect would be to authorize discrimination on the basis of sexual orientation. Although, theoretically, it is possible that heterosexuals of the same gender would enter into a same-sex marriage, there can be no dispute that the impact of District agencies’ refusal to recognize same sex-marriage would fall most heavily on gay and lesbian residents,56 denying them the ability to participate fully in an important aspect of life in the District.
We must address, however, the question of whether the Human Rights Act safeguard of the IPA required the Board to evaluate a proposed initiative under the Human Rights Act of 1977—the legislation specified in the IPA—rather than under the version of the Human Rights Act at the time of the Board‘s determination. As the District‘s brief acknowledges, under general rules of statutory construction, a statute that specifically refers to another statute “incorporates the provisions referred to as of the time of adoption without subsequent amendments, unless the legislature has expressly or by strong implication shown its intention to incorporate subsequent amendments.” 2B Norman J. Singer, Sutherland Statutes and Statutory Construction § 51.08 (7th ed. 2008) (italics added). We are satisfied that the italicized exception rather than that general rule, is applicable here. The legislative history of the IPA guides our interpretation. As reported by the Committee on Government Operations, Bill 2-317 prohibited initiatives that discriminated “by reason of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, matriculation, political affiliation, physical handicap, source of income, and place of residence or business.” Memorandum from Louis P. Robbins, Principal Deputy Corporation Counsel, to Judith W. Rogers, Special Assistant for Legislation, regarding Supplemental comments on Bill 2-317, the “Initiative, Referendum, and Recall Procedures Act of 1978,” at 1 (June 2, 1978) (quoting Amendment to § 212 of Bill No. 2-317). As explained to members of the Committee in a memorandum from the Legislative Assistant to the Chairman, the amendment to the bill when it was re-introduced as Bill 3-2, stating that “the Board of Elections [and] Ethics cannot accept any petitions which authorize discrimination prohibited under the Human Rights Act of 1977,” was
In light of that documentation, we regard the IPA‘s reference to the Human Rights Act of 1977 as a shorthand indication that the Council meant to require the Board to perform its gatekeeper function by determining whether a proposed initiative would authorize discrimination of the type currently prohibited by the District‘s human rights law, not by looking only to that law as it existed in 1977. We see no evidence that the Council “intended by such specific reference[] [to the Human Rights Act of 1977 and to its D.C.Code citation] any limitation on subsequent amendments which ameliorated the remedial scheme.” EEOC v. Chrysler Corp., 546 F.Supp. 54, 74 (E.D.Mich.1982). Moreover, in enacting the Human Rights Act, the Council re-enacted prior law (the Human Rights Law) that explicitly was intended to “provide a regulation of sufficient scope and flexibility to be responsive to future needs for the protection of civil and human rights,” since “there may be contexts and reasons for discrimination tomorrow that we do not anticipate today.” Human Rights Law Report, at 2. We believe it would contravene the legislative intent to require the Board to apply a dated version of the Human Rights Act that may not be, as the pre-Home Rule Council described and as the Home Rule Council implicitly echoed, adequate to answer the “future needs and circumstances of modern life.” Id.
V. Conclusion
The Council acted within its authority under the CAA and the Home Rule Act in enacting the Human Rights safeguard of the IPA and in directing the Board not to accept initiatives that contravene that safeguard. Because appellants’ proposed initiative would authorize, or have the effect of authorizing, discrimination on a basis prohibited by the Human Rights Act, it was not a proper subject of initiative. Therefore, the Board acted lawfully in refusing to accept the initiative on that basis. Accordingly, the judgment of the Superior Court upholding the Board‘s determination is
Affirmed.
FISHER, Associate Judge, with whom WASHINGTON, Chief Judge, and GLICKMAN and OBERLY, Associate Judges, join, dissenting:
This appeal is about legislative authority—that vested in the Council of the District of Columbia and that granted to the voters at large. In 1978, five years after the Home Rule Act transformed governance in the District of Columbia, the Council, the voters, and the Congress of the United States, acting in collaboration, amended the District Charter (Title IV of the Home Rule Act) for the first time, creating the right of initiative so that the voters themselves could propose and approve legislation.1
The following year, the Council enacted implementing legislation known as the Initiative, Referendum and Recall Procedures Act of 1979 (the “IPA“). In addition to establishing procedures for submitting, processing, and voting on an initiative petition, the IPA placed a limit on the subject matter that could be addressed by an initiative. The Council instructed the Board of Elections and Ethics not to accept a measure if it “authorizes, or would have the effect of authorizing, discrimination prohibited under” the District of Columbia Human Rights Act. This subject matter limitation on the right of initiative is not found in the Charter, which created that right, or in the more comprehensive Home Rule Act, which places certain limits on the legislative power of the District.
In 2009, appellants2 proposed that the voters exercise their right of initiative and declare that “[o]nly marriage between a man and a woman is valid or recognized in the District of Columbia.” The Board refused to accept the measure, holding that the proposal was not a “proper subject of initiative” because it would authorize, or have the effect of authorizing, discrimination prohibited by the Human Rights Act. This court must decide, as a matter of first impression, whether the IPA‘s “Human Rights Act limitation” is a valid restriction on the right of initiative. For the reasons which follow, we would hold that it is not.
Had our view prevailed, we would not have reached the question whether the Board properly refused to accept the proposed initiative. In light of the majority‘s holding, however, and in light of recent legislation recognizing and authorizing same-sex marriages in the District of Columbia, we agree with the majority‘s conclusion that the proposed initiative would authorize, or have the effect of authorizing, discrimination prohibited by the Human Rights Act, as amended in 2002.
I. The Factual and Procedural Background
On two occasions (in 2009 and 2010), appellant Jackson and others presented referendum3 petitions to the Board, seeking to suspend two acts of the Council relating to same-sex marriage, but their efforts were unsuccessful. The Board rejected the proposed referenda, citing the Human Rights Act (“HRA“), litigation ensued, and the acts became law.4 “No act is subject to referendum if it has become law according to the provisions of
The Jury and Marriage Amendment Act of 2009, which became law on July 7, 2009,
Meanwhile, on September 1, 2009, appellants submitted the Marriage Initiative of 2009. The Board refused to accept the initiative, reasoning that, “[i]f passed, [it] would, in contravention of the HRA, strip same-sex couples of the rights and responsibilities of marriages currently recognized in the District.... Because the Initiative would authorize discrimination prohibited by the HRA, it is not a proper subject for initiative, and may not be accepted by the Board.” Appellants petitioned for review by the Superior Court, and for a writ of mandamus. The trial court allowed the District of Columbia to intervene and later granted summary judgment to the Board and the District. This appeal followed.5
II. The “Constitutional” Framework
The Constitution of the United States of America vests in Congress the power to legislate for the District of Columbia “in all Cases whatsoever.”
Nevertheless, the Home Rule Act contains several limitations on the legislative power of the District.6 For example, the Council has no authority to “[i]mpose any tax on property of the United States,” to enact a “commuter tax” on the income of persons who do not reside in the District, to alter the organization and jurisdiction of the District of Columbia courts, or to “amend or repeal any Act of Congress ...
The Home Rule Act is now found in Chapter 2 of Title 1 of the D.C.Code, and Subchapter IV of Chapter 2, the District Charter, “establish[es] the means of governance of the District....”
The Home Rule Act includes a process for amending the Charter which requires collaboration among the Council, the voters of the District of Columbia, and Congress. With certain exceptions not relevant here, the Charter “may be amended by an act passed by the Council and ratified by a majority of the registered qualified electors of the District voting in the referendum held for such ratification.”
III. The Right of Initiative and Its Limits
The rights of initiative, referendum, and recall were added to our form of government in 1978 by the Charter Amendments Act (“CAA“) and thereby became part of the District‘s Charter. D.C. Law 2-46, 24 D.C.Reg. 199 (1977) (as approved by H.R. Con. Res. 464 & 471, 95th Cong. (1978)) (codified at
As amended, the Charter includes one express limitation on the subject matter of an initiative—the voters may not propose “laws appropriating funds.”8 Other ex-
IV. The Human Rights Act
In 1973, the District of Columbia Council (the predecessor of the current Council of the District of Columbia) adopted Title 34 of the District of Columbia Rules and Regulations, known as the “Human Rights Law” (34 DCRR § 3.1). “In enacting Title 34, the City Council looked beyond the Civil Rights Act of 1964, including Title VII, to other civil rights legislation enacted by Congress more than 100 years ago [referring to an 1866 law now codified, as amended, at
tion, police regulations, and Commissioners’ Orders dating back to 1869 that prohibited various types of discrimination in the District of Columbia.9
Concerned that the police power regulations in Title 34 might not have the same force and effect as a statute, the (post Home Rule) Council of the District of Columbia re-enacted the regulations as The Human Rights Act of 1977. Blodgett v. University Club, 930 A.2d 210, 217 (D.C.2007). The first section of the Human Rights Act explains that the legislature intended “to secure an end in the District of Columbia to discrimination for any reason other than that of individual merit....” The substantive provisions which existed in 1977 prohibited discrimination in public accommodations, employment, educational institutions, and housing and commercial space based upon many characteristics, including sex and sexual orientation.
“In amending the [Human Rights Act] in 1997, the legislature emphasized its ‘broad scope’ and the fact that its coverage is wider than Title VII:
The District‘s human rights law has long been praised for its broad scope. The law bans discrimination in employment, housing, public accommodations, and education. It protects people from discrimination based on characteristics covered in federal civil rights law—race, color, sex, religion, age, national origin, and disability—as well as other characteristics not covered under federal law, such as sexual orientation, marital status, and family responsibilities.”
Lively v. Flexible Packaging Ass‘n, 830 A.2d 874, 887 (D.C.2003) (en banc) (quoting D.C. Council, Committee on Government Operations, Report on Bill 12-34, “The Human Rights Amendment Act of 1997,” at 2 (May 29, 1997)).
We have described the Human Rights Act as “a powerful, flexible, and far-reaching prohibition against discrimination of many kinds,” Executive Sandwich Shoppe, Inc. v. Carr Realty Corp., 749 A.2d 724, 732 (D.C.2000) (citation and internal quotation marks omitted), and its reach has expanded significantly since 1977.10 “Among the statute‘s basic purposes is reinforcement of the Council‘s view that the Human Rights Act is among our most important laws and is to be vigorously enforced by all agencies and officials of the District Government....” Gay Rights Coalition of Georgetown University Law Center v. Georgetown University, 536 A.2d 1, 33 (D.C.1987) (en banc) (internal quotation marks and citation omitted). Nevertheless, by contrast to the Charter, the Human Rights Act is not part of our local “constitution.” The Council may amend the Human Rights Act by ordinary legislation, and frequently has done so. See supra note 10.
In light of this community‘s longstanding commitment to securing an end to discrimination, it is entirely understandable that citizen groups and the Council would recognize the possibility that “a proposed initiative measure [might seek to] authorize discrimination as a policy for this community.” D.C. Council, Report on Bill 2-317 at 11 (May 3, 1978). These concerns emerged when the Council turned to the task of implementing the newly created rights of initiative, referendum, and recall.
V. The Initiative, Referendum and Recall Procedures Act of 1979
The Charter Amendments Act did not prescribe how the newly-created rights of initiative, referendum, and recall were to be implemented. Instead, Section 8 of Amendment No. 1 (which established the rights of initiative and referendum) instructed:
The Council of the District of Columbia shall adopt such acts as are necessary to carry out the purpose of this Amendment within one hundred and eighty (180) days of the effective date of this Amendment. Neither a petition initiating an initiative nor a referendum may be presented to the District of Columbia Board of Elections and Ethics prior to October 1, 1978.
D.C. Law 2-46, Amendment No. 1 § 8, 1978 D.C. Statutes-at-Large 33, 34-35 (1978 Comp.) (the codified statute,
A. Creating Time to Implement the CAA
The District of Columbia asserts that “[d]eciding what acts are ‘necessary to carry out’ the undefined ‘purpose’ of the CAA requires policy decisions that are properly left to the Council and that this Court cannot make without expressing lack of the respect due coordinate branches of government.” We disagree.
We focused on these same provisions in Convention Center I, where this court held that the Charter Amendments were not self-executing. After quoting or describing various excerpts from the legislative history, we characterized Section 8 as a “legislative mandate,” 399 A.2d at 553, for the Council to pass “enabling legislation,” id. at 551, 552, “implementing legislation,” id. at 553, or “implementing acts.” Id. “[T]he drafters chose the October 1 date on the assumption that the necessary preparations for administering an initiative election—the passage of implementing legislation and the allocation of monies to the Board—would be completed.” 399 A.2d at 553. If the Council acted, as directed, within 180 days, the implementing steps would be completed before the Amendment took effect on October 1.11 Notably,
The majority points to models of other language that might have been used if the Council were expected “to enact merely procedural rules governing the initiative and referendum process.” (Judge Thompson‘s opinion at 24) A similar point should be made about the majority‘s comparison of Section 8‘s language to the “necessary and proper” clause of
Moreover, any mystery about the purpose of the CAA evaporates when Section 8 of Amendment No. 1 is considered in context, as it should be. See District of Columbia v. Beretta, U.S.A., Corp., 872 A.2d 633, 652 (D.C.2005) (en banc) (“[W]e do not read statutory words in isolation; the language of surrounding and related paragraphs may be instrumental to understanding them.“). Rather than being “undefined,” and perhaps indiscernible, as the District suggests, the “purpose” of the CAA was “[t]o amend the Charter of the District of Columbia to provide for the power of initiative, referendum, and recall.” D.C. Law 2-46, Preamble, 1978 D.C. Statutes-at-Large 33 (1978 Comp.). The CAA contained two amendments to the District Charter, each of which had a distinct purpose. Charter Amendment No. 1—now codified as Subpart 1—establishes the rights of initiative and referendum. The codified version of Section 8 of Amendment No. 1 (
Considered in context, this “necessary to carry out the purpose” language was a mandate to enact implementing legislation—to adopt such acts as are necessary to make the rights of initiative, referendum, and recall available to the people of the District of Columbia and to do so in a timely manner. It did not grant any license to restrict those rights, which had been established through the painstaking process of amending the Charter.
B. Limiting Subject Matter
The implementing legislation arrived (albeit beyond the 180-day period allotted) in the form of the Initiative, Referendum and Recall Procedures Act of 1979. This legislation, among other things, prescribed the form in which a measure must be submitted and the number of copies required, and established timetables and procedures for processing it.
The Board must reject a petition that is not in the proper form.
Reacting to understandable concerns that the rights of initiative and referendum could be misused by the majority to discriminate against minorities, the Council instructed the Board (in the IPA) to refuse to accept a measure if it “authorizes, or would have the effect of authorizing, discrimination prohibited under Chapter 14 of Title 2 [the Human Rights Act.]”
[t]he merits of the policy embodied by this restriction on the voters’ rights is beside the point. Any substantive restrictions on the rights of the voters granted by Charter Amendment No. 1 are contrary to that Amendment and, hence, are void and of no effect. Such legislation may only be accomplished by the Charter Amending Procedure or by Act of Congress.
Supplemental Memorandum from Louis P. Robbins, Principal Deputy Corporation Counsel, Office of the Corporation Counsel, to Judith W. Rogers, Special Assistant for Legislation, 2 (June 2, 1978); 3 Op. C.C.D.C. 102, 103 (1978).14
The majority brushes aside these “doubts expressed by lawyers,” emphasizing that “the elected representatives of the people—the Council and the Mayor—thought otherwise.” (Majority Opinion at 31, 32) But this is a question of legal or “constitutional” authority, not a matter of political judgment.
We perceive no principled basis for deferring to the Council‘s interpretation of the Home Rule Act, apart from the merits of the Council‘s argument. Although “the interpretation of its powers by any branch is due great respect from the others[,] ... ‘[i]t is emphatically the province and duty of the judicial department to say what the law is.‘” United States v. Nixon, 418 U.S. 683, 703, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803)). District of Columbia v. Washington Home Ownership Council, Inc., 415 A.2d 1349, 1351 n. 5.
The Corporation Counsel gave sound advice in 1978. The rights of initiative, referendum, and recall had become part of the Charter, which cannot be amended except by Act of Congress or by going through the Charter Amendment process. The “necessary to carry out” language in the Charter Amendments Act did not give the Council power to enact legislation inconsistent with the Charter Amendments. Price v. District of Columbia Board of Elections and Ethics, 645 A.2d 594, 598-99 (D.C.1994) (citing Convention Center III, 441 A.2d at 915). “[L]egislation implementing the Charter Amendments is valid only if it does not conflict with the Charter Amendments.” Id. “Nor could the Council amend the Charter Amendments by enacting the IPA since, as the Self-Government Act clearly provides, the Charter may be amended only as provided in
VI. Appellees’ Arguments
A. Should We Abstain?
Invoking the Supreme Court‘s decision in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), the District
By conducting this review of the Council‘s action, we are not, as the District of Columbia asserts, expressing a lack of the respect due a coordinate branch of government. To the contrary, we proceed cautiously, recognizing “the need to ‘balance deference to the legislative authority of the Council, with our own duty to oversee Council action which might exceed congressionally delegated authority.‘” Atchison v. District of Columbia, 585 A.2d 150, 156 (D.C.1991) (quoting American Federation of Government Employees v. Barry, 459 A.2d 1045, 1050 (D.C.1983)).
We frequently have had to decide the scope of the Council‘s authority under the Home Rule Act. Compare Washington Home, 415 A.2d 1349 (Council had no authority to pass another substantially identical emergency act in response to same emergency) with United States v. Alston, 580 A.2d 587 (D.C.1990) (after period of congressional review was doubled for certain types of legislation, Council had authority to pass successive, substantially identical emergency acts to preserve the status quo while identical legislation enacted by the Council after two readings was pending before Congress for review); see also Umana v. Swidler & Berlin, Chartered, 669 A.2d 717, 724 n. 15 (D.C.1995) (Home Rule Act does not “limit the Council‘s authority to enact or to alter the substantive law to be applied by the courts“); Capitol Hill Restoration Society, Inc. v. Moore, 410 A.2d 184 (D.C.1979) (Council‘s grant of appellate court jurisdiction in certain noncontested cases impermissibly altered this court‘s jurisdiction.). Furthermore, we have often considered the proper scope of the right of initiative, and we have rejected an “argument that adoption of the initiative right by the Council, Mayor, and electorate violated the District‘s Charter.” Stevenson v. District of Columbia Board of Elections and Ethics, 683 A.2d 1371, 1375 (D.C.1996). We also have addressed the validity of a separate portion of the IPA. See Price, 645 A.2d
B. Unique Insight?
The District also points out that most of the same Councilmembers who passed the Charter Amendments Act approved the Initiative, Referendum and Recall Procedures Act of 1979. It argues that, “although the second Council could not change the Charter through ordinary legislation, its unique insight into what the CAA meant gave its interpretation through the IPA presumptive validity.” However, the cases on which the District relies do not support this proposition. Moreover, we have seen no indication that the Councilmembers who enacted the IPA (thereby imposing the Human Rights Act limitation on the right of initiative) thought they were interpreting the CAA or purported to rely on insiders’ knowledge of its purpose. Nor did they profess unique understanding of what the “necessary to carry out” language meant.
The District and the majority focus single-mindedly on the supposed intent of the Council in drafting and “interpreting” the CAA. See, e.g., ante at 160 (“what the Council did in enacting the IPA provides an authoritative interpretation of the intent and meaning of the CAA“). Tellingly, however, they point to no evidence that the voters of the District or members of Congress (all indispensable partners in amending the Charter) thought they were delegating to the Council an undefined power
The District misplaces its reliance on Eldred v. Ashcroft, 537 U.S. 186, 123 S.Ct. 769, 154 L.Ed.2d 683 (2003), where the Supreme Court noted that it “has repeatedly laid down the principle that a contemporaneous legislative exposition of the Constitution when the founders of our Government and framers of our Constitution were actively participating in public affairs, acquiesced in for a long term of years, fixes the construction to be given [the Constitution‘s] provisions.” Id. at 213, 123 S.Ct. 769 (quoting Myers v. United States, 272 U.S. 52, 175, 47 S.Ct. 21, 71 L.Ed. 160 (1926)). This case is not comparable to Eldred, where the Court relied upon “Congress’ unbroken practice since the founding generation....” 537 U.S. at 213-14, 123 S.Ct. 769. “History reveal[ed] an unbroken congressional practice of granting to authors of works with existing copyrights the benefit of term extensions so that all under copyright protection will be governed evenhandedly under the same regime.” Id. at 200, 123 S.Ct. 769. The Court explained: “Such consistent congressional practice is entitled to very great weight, and when it is remembered that the rights thus established have not been disputed during a period of [over two] centur[ies], it is almost conclusive.” Id. at 213, 123 S.Ct. 769 (internal quotations and citation omitted).
By contrast to Eldred, the provision at issue here has been in existence for about thirty years (as opposed to over two hundred). More importantly, the District has not pointed us to, nor can we find, any “routine application” or “consistent legislative practice” that has been followed by the Council or approved by the voters or Congress.17 The most that can be said is that the Human Rights Act limitation has gone unchallenged for more than thirty years. The Myers decision, on which Eldred relied, makes clear that the legislature may not unilaterally determine the extent of its authority:
In the use of Congressional legislation to support or change a particular construction of the Constitution by acquiescence, its weight for the purpose must depend not only upon the nature of the question, but also upon the attitude of the executive and judicial branches of the Government, as well as upon the number of instances in the execution of the law in which opportunity for objection in the courts or elsewhere is afforded. When instances which actually involve the question are rare, or have not in fact occurred, the weight of the mere presence of acts on the statute book for a considerable time, as showing general acquiescence ..., is minimized.
272 U.S. at 170-71, 47 S.Ct. 21. It was a crucial factor in Myers that “the decision of the First Congress on a question of primary importance in the organization of the government ... was soon accepted as a final decision of the question by all branches of the government.” Id. at 136, 47 S.Ct. 21. Nothing comparable has happened here, and we therefore are not persuaded by the District‘s argument relying on Eldred and Myers.
C. The Council‘s Rationale
When one focuses on the subject matter restriction imposed by the IPA, an obvious question arises: Why didn‘t the Council simply add the Human Rights Act limitation to its draft of the Charter Amendments Act?18 No satisfactory answer has emerged from the legislative history of the CAA. However, the history of the IPA strongly suggests that the “Human Rights Act limitation” was an afterthought, a concern brought to the Council‘s attention after the Charter had been amended. D.C. Council, Report on Bill No. 2-317 at 5 (May 3, 1978) (“Subsequent to the public hearing [on the IPA], the Committee staff received myriad telephone calls in support of an amendment to the enabling legislation which would restrict consideration of initiative measures which foster discrimination. Such an amendment was adopted by the Committee in reporting this measure.“). When
1. Reitman v. Mulkey
Reitman considered a provision of the California Constitution that had been initiated by the voters, but the Supreme Court‘s holding is no more a check on the right of initiative than it is on acts passed by a legislature. So far as the decision discloses, it was irrelevant that the provision was adopted by initiative.
According to the California Supreme Court, that initiative (Proposition 14) was designed “to overturn state laws that bore on the right of private sellers and lessors to discriminate” and “to forestall future state action that might circumscribe this right.” 387 U.S. at 374, 87 S.Ct. 1627. When enacted, it became Art. I, § 26, of the California Constitution,19 but the state Supreme Court held that it “was invalid as denying the equal protection of the laws guaranteed by the
Of especial interest here, the Supreme Court of California had rejected an effort to keep the proposition off the ballot, reasoning “that it would be more appropriate to pass on those questions after the election ... than to interfere with the power of the people to propose laws and amendments to the Constitution and to adopt or reject the same at the polls.” Mulkey v. Reitman, 64 Cal.2d 529, 50 Cal.Rptr. 881, 413 P.2d 825, 829 (1966) (quoting the court‘s previous order). Moreover, the provision was struck down because it violated the federal Constitution, not because it was deemed inconsistent with a state law. Reitman clearly does not stand for the proposition that one act of the Council (here, the IPA) can place another act of the Council (even one prohibiting discrimination) off-limits to the initiative process.
2. Section 752
The Council also invoked, and appellees now rely upon,
At the time Section 752 was enacted, the right of initiative did not exist. It therefore is far from clear that Congress would have thought that the phrase “matters involving or relating to elections in the District” encompassed initiatives. More fundamentally, given that Section 752 predates by five years the creation of the right of initiative, it is implausible that Congress intended Section 752 to confer upon the Council power to exclude whole subject areas from consideration by the electorate.
In any event, if Section 752 is as broad as appellees assert, why was the Charter Amendments Act necessary? Why didn‘t the Council simply use its power over elections to create the rights of initiative, referendum, and recall? One obvious answer is that, even if an initiative is an election, it is much more—it is an exercise of legislative power. The Charter provided that “the legislative power granted to the District by [the Home Rule Act] is vested in and shall be exercised by the Council in accordance with this chapter.”
If a Charter amendment was necessary to create the right of initiative, an amend
Finally, appellees have offered no satisfactory answer to the following question: If the Council‘s powers are as broad as they assert, what is to preclude the Council from imposing additional subject matter limitations on the right of initiative or, indeed, from extinguishing that right altogether? It appears that a candid answer to that question would be “nothing.” Yet, under our “constitutional” principles, a Charter right may not be limited or extinguished by ordinary legislation. That may be done only by going through the intentionally-cumbersome process of amending the Charter.
D. Inappropriate for Direct Democracy?
The District also argues that it is a mistake to read the CAA literally, as establishing a right of initiative “coextensive” with the legislative power of the Council except for one express limitation—“laws appropriating funds.” It asserts that “the most reasonable conclusion is that the CAA was intended to authorize the electorate to vote on topics generally, but not those inappropriate for direct democracy.” We have found no support whatsoever for this proposition in the CAA‘s text or its legislative history.
Even if we assume that the people at large are more likely to discriminate against minorities than are their elected representatives, appellees forget that there are numerous checks and balances in place here to protect against the tyranny of the majority. Appellants’ proposal may be defeated at the polls. If the initiative passes, Congress may disapprove it. See
*
*
*
It should be clear that no one on this court doubts the importance of the Human Rights Act. Non-discrimination, tolerance, acceptance, and inclusion are all fundamental values to be fostered in a pluralistic society. But these aspirations are best achieved through a system of laws, and it is vital that the institutions of the District government observe the limits placed upon them by the Home Rule Act and the Charter. It is “our ... duty to oversee Council action which might exceed congressionally delegated authority.” Atchison, 585 A.2d at 156. The Council of the District of Columbia exceeded its authority when it imposed the “Human Rights Act limitation” on the right of initiative. We respectfully dissent.
Kendra BROOKS, et al., Appellants,
v.
DISTRICT OF COLUMBIA HOUSING AUTHORITY, Appellee.
No. 07-CV-1159.
District of Columbia Court of Appeals.
Argued June 3, 2009.
Re-argued May 11, 2010.
Decided July 22, 2010.
Notes
Upon receipt of each proposed initiative or referendum measure, the Board shall refuse to accept the measure if the Board finds that it is not a proper subject of initiative or referendum, whichever is applicable, under the terms of title IV of the District of Columbia Home Rule Act, or upon any of the following grounds:
(A) The verified statement of contributions has not been filed pursuant to §§ 1-1102.04 and 1-1102.06;
(B) The petition is not in the proper form established in subsection (a) of this section;
(C) The measure authorizes, or would have the effect of authorizing, discrimination prohibited under Chapter 14 of Title 2; or
(D) The measure presented would negate or limit an act of the Council of the District of Columbia pursuant to § 1-204.46.
Id. (italics added). The italicized language, section 1-1001.16(b)(1)(C), sets forth what we refer to as the Human Rights Act safeguard.
Appellants, the proponents of the Marriage Initiative of 2009, are Bishop Harry Jackson, Jr., Reverend Walter Fauntroy, Reverend Dale Wafer, Melvin Dupree, Apostle James Silver, Reverend Anthony Evans, Robert King, and Elder Howard Butler.(c) No priest, imam, rabbi, minister, or other official of any religious society who is authorized to solemnize or celebrate marriages shall be required to solemnize or celebrate any marriage.
(d) Each religious society has exclusive control over its own theological doctrine, teachings, and beliefs regarding who may marry within that particular religious society‘s faith.
(e)(1) Notwithstanding any other provision of law, a religious society, or a nonprofit organization that is operated, supervised, or controlled by or in conjunction with a religious society, shall not be required to provide services, accommodations, facilities, or goods for a purpose related to the solemnization or celebration of a marriage, or the promotion of marriage through religious programs, counseling, courses, or retreats, that is in violation of the religious society‘s beliefs.
(2) A refusal to provide services, accommodations, facilities, or goods in accordance with this subsection shall not create any civil claim or cause of action, or result in a District action to penalize or withhold benefits from the religious society or nonprofit organization that is operated, supervised, or controlled by or in conjunction with a religious society.
The House-passed Home Rule bill would have permitted initiative petitions for Charter amendments, while the Senate bill would have required all Charter amendments to originate with Congress. The Conference resolution was to permit the Council alone to originate Charter amendments. See H.R.Rep. No. 95-890, at 2 (1978) (Conf.Rep.).
SeeExcept as provided in
§§ 1-206.01 to1-206.03 , the legislative power of the District shall extend to all rightful subjects of legislation within the District consistent with the Constitution of the United States and the provisions of this chapter subject to all the restrictions and limitations imposed upon the states by the 10th section of the 1st article of the Constitution of the United States.
The District of Columbia Council hereby finds that the failure to provide equal opportunity to enjoy a full and productive life, whether because of discrimination, prejudice, intolerance or inadequate education, training, housing or health care, not only threatens the rights and proper privileges of its inhabitants, but menaces the institutions and foundations of a free democratic society; and threatens the lives, limbs, health, comfort, quiet of all persons and the protection of all property in the District.
34 DCRR § 1.3.
In enacting the Human Rights Law, the pre-Home Rule Council borrowed the language of a longstanding police regulation that had been enacted by the Commissioners of the District of Columbia pursuant to their authority “to make and enforce all such reasonable and usual police regulations ... as they may deem necessary for the protection of lives, limbs, health, comfort and quiet of all persons and the protection of all property within the District of Columbia.” See Newsweek Magazine v. District of Columbia Comm‘n on Human Rights, 376 A.2d 777, 781-82 (D.C. 1977). This court held in Newsweek that the Human Rights Law was “a valid exercise of the [pre-Home Rule Council‘s] police power.” Id. at 782 n. 4. We explained that “we view the harmful effects of illegal discrimination ... to be so deleterious to our society as to affect the ‘lives, limbs, health, comfort and quiet of all persons’ within the District and thus within the purview of ... ‘reasonable and usual’ Police Regulations.” Id. at 782.
The Human Rights Act was extended to cover government services in 2002. Human Rights Amendment Act of 2002, D.C. Law 14-189 § 2(g) (Act 14-399), 49 D.C.Reg. 6523 (2002) (codified atMoreover, what we said in Convention Ctr. III was that ”absent express or implied limitation, the power of the electorate to act by initiative is coextensive with the power of the legislature to adopt legislative measures.” 441 A.2d at 897 (italics added); see also Brizill v. District of Columbia Bd. of Elections & Ethics, 911 A.2d 1212, 1214 (D.C. 2006) (Voters “generally may approve through initiative any law that the Council may enact through legislation.“) (italics added). Thus, rather than answer the question that is before us in this case, the quoted statement begs the question whether there is an express or implied limitation on the right to initiative that is relevant here.
For example, the supporters of an initiative “shall file with the Board 5 printed or typewritten copies of the full text of the measure, a summary statement of not more than 100 words, and a short title of the [proposed initiative]....”Thus, the ballot asked voters to approve creation of the right to legislate by initiative, but did not ask them to vote as to the scope of the initiative power. Art. I, § 26, provided:The Initiative and Referendum Charter Amendment
Authorizes 5% or more of the city‘s registered voters (with 5% from each of at least 5 city wards) to propose laws and enact them by public vote or to repeal laws previously enacted by the Council of the District of Columbia by petitioning the Board of Elections and Ethics to conduct a public vote for such purposes. The Board of Elections and Ethics shall place such proposals on the ballot for approval or rejection.
The above would not go into effect until October 1, 1978.
Neither the State nor any subdivision or agency thereof shall deny, limit or abridge, directly or indirectly, the right of any person, who is willing or desires to sell, lease or rent any part or all of his real property, to decline to sell, lease or rent such property to such person or persons as he, in his absolute discretion, chooses.
And, quite the contrary, during the Council debate upon the second reading of the CAA, Council Chair Tucker, to expedite a final vote on the legislation, assured Council members that the matter of safeguards (including, as Councilmember Wilson put it, provisions to “protect the citizens against special interests,” and possibly, as Councilmember Shackleton thought necessary, referendum expenditure limits) would be addressed and debated in connection with implementing legislation to follow. Final Reading of Bill 2-2, “The Initiative, Referendum, and Recall Charter Amendments of 1977,” at 15, 1619 (May 17, 1977); First Reading of Bill 2-2, “The Initiative, Referendum, and Recall Charter Amendments of 1977,” at 37 (May 3, 1977).
If the logic of the majority‘s argument were followed, one wonders if the Council, using its power under Section 752, could instruct the Board of Elections to refuse to accept petitions from certain classes of candidates running for election to the Council—even though they met the qualifications for holding office established in the District Charter?(a) Whenever it appears that the holder of a permit, license, franchise, benefit, or advantage issued by any agency or authority of the government of the District is a person against whom the Office has made a finding of probable cause [that the holder is violating the Human Rights Act] pursuant to
§ 2-1403.05 , the Office, notwithstanding any other action it may take or may have taken under the authority of the provisions of this chapter, may refer to the proper agency or authority the facts and identities of all persons involved in the complaint for such action as such agency or authority, in its judgment, considers appropriate, based upon the facts thus disclosed to it.(b) The Commission, upon a determination of a violation of any of the provisions of this chapter by a holder of, or applicant for any permit, license, franchise, benefit, exemption, or advantage issued by or on behalf of the government of the District of Columbia, and upon failure of the respondent to correct the unlawful discriminatory practice and comply with its order, in accordance with
§ 2-1403.15(a) , shall refer this determination to the appropriate agency or authority. Such determination shall constitute prima facie evidence that the respondent, with respect to the particular business in which the violation was found, is not operating in the public interest. Such agency or authority shall, upon notification, issue to said holder or applicant an order to show cause why such privileges related to that business should not be revoked, suspended, denied or otherwise restricted.
D.C.Code § 2-1403.17(a) ,(b) (2007).
Except as otherwise provided for by District law or when otherwise lawfully and reasonably permitted, it shall be an unlawful discriminatory practice for a District government agency or office to limit or refuse to provide any facility, service, program, or benefit to any individual on the basis of an individual‘s actual or perceived: race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, familial status, family responsibilities, disability, matriculation, political affiliation, source of income, or place of residence or business.