SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
Civil Division
____________________________________
RESTAURANT ASSOCIATION OF )
METROPOLITAN WASHINGTON, et al )
)
Plaintiffs, ) Civil Action No. 04-1783
) Calendar 5 – Judge Mary A. Terrell
v. )
)
DISTRICT OF COLUMBIA BOARD )
OR ELECTIONS AND ETHICS, et al )
)
Defendants. )
____________________________________)
(Granting Plaintiffs Restaurant Association of Metropolitan Washington, Lynne Cooper, and Joseph Englert’s Motion for Summary Judgment)
This matter comes before the Court on the parties’ Motions for Summary Judgment, Plaintiffs Restaurant Association of Metropolitan Washington (hereafter “RAMW”), Lynne Breaux Cooper (hereafter “Cooper”), Joseph Andrew Englert (hereafter “Englert”), and Defendant D.C. Board of Elections (hereafter the “Board”), Intervenor Defendants American Cancer Society (hereafter “ACS”), and the National Center for Tobacco-Free Kids (hereafter “Kids”), Oppositions and any reply briefs.
On March 8, 2004, Plaintiffs filed this action, a Complaint-Petition for Writ of Mandamus, against the Board claiming that it erred in accepting “D.C. Smokefree Workplaces Initiative of 2004” (Initiative Measure No. 66) (hereafter “Initiative 66”), because it is not a proper subject matter for an initiative, that proper notice of the public meeting was not given to the electorate, and Initiative 66 was written in improper legislative form, all in violation of District government law. Plaintiff seeks: (1) the invalidation of the proposed initiative, (2) the Court to direct the Board to: a) withdraw its approval and b) to reject the measure. The Board filed an Answer to the complaint on March 10, 2004. A consent motion for an expedited ruling was granted on March 16, 2004, pursuant D.C. Code § 1-1001.16(e)(1)(A) (2001). ACS and Kids filed a Motion to Intervene as Defendants that was granted by the Court on March 30, 2004. A status hearing was held on April 2, 2004 where the parties consented to a briefing schedule.
A hearing on the parties’ cross-motions for summary judgment was held on May 6, 2004.
II. Standard of Review
The standard for reviewing summary judgment motions is clearly established in Rule 56 of the D.C. Superior Court Rules of Civil Procedure. Rule 56 states, in relevant part, that summary judgment shall be granted as a matter of law if the moving party can prove no genuine issue as to any material fact. Id. Moreover, it is not the function of the court to resolve any issues of fact but rather merely to determine whether any factual issue pertinent to the controversy exists. Nyhus v. Travel Management Corp., 466 F.2d 440, 442 (1972), citing Dewey v. Clark, 180 F.2d 766, 772 (1950). See Super. Ct. Civ. R. 56(c).
This dispute involves solely questions of law relating to whether Initiative 66 is: (1) a “law appropriating funds” as prohibited by D.C. Code § 1-204.101(a) (2001); (2) whether the proposed initiative would “negate or limit” an act of the D.C. Council (hereafter the “Council”) pursuant D.C. Code § 1-204.46, and, therefore, not a proper subject matter for the initiative process, as stated in D.C. Code § 1-1001.16(b)(1); (3) whether the Board gave proper notice to the electorate about the public meeting; and (4) whether the legislative form is proper according to D.C. Code § 1-1001.16(c)(1)-(3).
Initiative 66 was submitted to the Board to be accepted and put on the November 2004 ballot. Initiative 66 would amend the D.C. Smoking Restriction Act of 1979 prohibiting smoking in all public places, including restaurants, thus eliminating the 1979 Act exception for restaurants that have properly designated smoking and non-smoking areas. D.C. Code § 7-1703.01.
The Board published notice of a public meeting in the District of Columbia Register on February 6, 2004. The notice of the meeting was mailed on February 9, 2004, and the public meeting was held on February 11, 2004. During the public meeting, the Board heard statements from both sides, including a statement from RAMW. Cooper also received notice and was present at the public meeting. At the conclusion of the public meeting, the Board accepted Initiative 66.
On February 18, 2004, the Board convened a special meeting to formulate Initiative 66’s short title, summary statement, and legislative text pursuant D.C. Code § 1-1001.16 (d). The formulated short title, summary statement and legislative text for Initiative 66 were published in the D.C. Register on February 27, 2004. The short title of Initiative 66 is “D.C. Smokefree Workplaces Initiative of 2004.” The summary statement for Initiative 66 provides that:
This initiative, if passed, would create smokefree work environments in all enclosed public and private places of employment in the District of Columbia;
This initiative would:
The smokefree requirements of this initiative would not apply to private residences except those used as workplaces that regularly provide day care, educational services or health services.
51 D.C. Reg . 2259 (2004).
The District of Columbia’s original Self-Government Act, also known as the Home Rule Act, did not contain the right of initiative, referendum or recall. Convention Center Referendum Committee, et al v. District of Columbia Board of Elections and Ethics, et al, 441 A.2d 889, 896 (D.C. 1981). The Charter Act amended the Self-Government Act, granting a “power of direct legislation” to the electorate. Id. at 897. The broad right of initiative was balanced by the Council against the financial responsibilities of elected officials under the Charter Amendments of 1978 (hereafter the “Charter”). Hessey v. District of Columbia Board of Elections and Ethics, et al, 601 A.2d 3, 15 (D.C. 1991). At this time, the District of Columbia voters have a right to enact legislation by initiative, subject to the limitation that they may not enact laws appropriating funds, or negate or limit an act of the Council, such as the Budget Request Act. D.C. Code § 1-204.101(a) (2004); D.C. Code § 1-204.46 (2004); D.C. Code § 1-1001.16(b)(1)(D) (2004).
When reviewing laws enacted through the initiative process, courts should liberally construe the voters’ right. Convention Center, 441 A.2d at 913 (Courts have “applied a liberal interpretation rule with vigor in both procedural and substantive contexts.”) The right of initiative is a Charter right, and courts are “required to construe the right of initiative liberally, and may impose on the right only those limitations expressed in the law or clear[ly] and compelling[ly] implied. Id. There are two main expressed limitations on the right of initiative and they are: (1) “law appropriating funds” and (2) “negate or limit” an act of the Council. Both limitations help determine whether the proposed initiative is an appropriate subject matter.
A. Initiative 66 Is Not an Appropriate Subject Matter
The Self-Government Act states that Congress retains the power to appropriate all District government revenues. D.C. Code § 47-304 (1990). The D.C. Code defines revenues to mean “all funds received from taxes, fees, charges, and miscellaneous receipts….” § 47-130. The Council is the local legislature for the District of Columbia, however legislation is subject to the approval of Congress. U.S. C onst. art. I, § 8, cl. 17.
The Charter prescribes that the Mayor and the Council shall annually submit a budget request to the President for submission to Congress for approval. D.C. Code §§ 47-301, 304. The Mayor submits a budget request which details the purpose for the requested funds, and is prepared on the assumption that the proposed expenditures will not exceed the estimated revenues from existing and proposed sources, thus requiring a balanced budget request. D.C. Code § 47-301(a)(1), (c). The fiscal role of the District is especially unique, both the Mayor and Council must identify expenses and revenues and submit a balanced budget for Congressional approval. Hessey, 601 A.2d at 10, 17. The Charter created this budget process and established financial policies designed to ensure that the District government’s fiscal affairs would be run effectively and on a sound fiscal basis. Id. at 15. In addition, the Charter intended that the Council retain control of the local budget process. Id.
During the extensive debates on the “law appropriating funds” limitation, the Council concluded that if an initiative would result in an unbalanced budget or deficit, this limitation would cure the problem because the Council would determine how revenues would be allocated. Hessey, 601 A.2d 13. This limitation not only pertains to infringing on the Budget Request Act, it also extends to the District’s entire budget process. Id. at 14.
Most importantly, the District of Columbia Court of Appeals has interpreted the “laws appropriating funds” limitation “ very broadly, holding that it ‘extend[s] … to the full measure of the Council’s role in the District’s budget process …’” Dorsey v. District of Columbia Board of Elections and Ethics, 648 A.2d 675, 677 (D.C. 1994) (quoting Hessey, 601 A.2d at 20). The word ‘appropriations’ when used in connection with the functions of the Mayor and the Council in the District’s budget process refers to the discretionary process by which revenues are identified and allocated among competing programs and activities. Id. at 677.
In Dorsey, the court rejected a proposed initiative because the amnesty and anti-impoundment provisions interfered with the collection of revenues on booted cars and “would intrude upon the discretion of the Council to allocate District government revenues in the budget process.” Id. at 675. Subsequently, the Court of Appeals affirmed summary judgment in favor of the District government. Id. . On the issue of the proposed initiative’s expected decrease in revenue being relatively small, the court commented as follows:
In any year in which they operated, the [proposed] amnesty and
anti-impoundment provisions would make it virtually impossible
for the Council to identify and allocate revenues from penalties
for late payment of traffic fines. That these funds are only a tiny
part of the District’s annual revenue projections is beside the point;
the electorate may no more eliminate them by initiative than it could
abolish or lower the sales tax or local income tax – matters integral
to the “power of the purse” which Congress and the Council reserved
exclusively to the elected government … Because [the proposed]
initiative would affect or “relate to” … the budget process in the
broad manner defined by Hessey, it constitutes a law appropriating
funds ….
Id. at 677.
Moreover, the Board, ACS, and Kids argued that Initiative 66 would actually increase tax revenues realized by the District like in other areas including, New York City and the State of Delaware. Even if Initiative 66 raised tax revenues, the initiative would still be considered a “law appropriating funds” according to Hessey. 601 A.2d at 19; Dorsey, 648 A.2d at 677 n.2 (the periodic amnesties would actually increase the payment of traffic fines and thus not diminish available revenues. The Councilmembers comments about a negative fiscal impact were sufficient to refute the increase.).
The intent of the “law appropriating funds” limitation was to ensure that any matters pertaining to the local budget process would remain within the control of the Mayor and Council, and the initiatives would not create deficits or interfere with the elected officials’ decisions. Dorsey, 648 A.2d at 677. For the reasons stated above, Initiative 66 would constitute an improper intrusion upon the discretion of the Mayor and the Council in the District’s budget process, because it would have a direct impact on the revenues identified and allocated by the Mayor and the Council as part of the budget process.
The other limitation on the initiative right, also stated in governing statutes, is that an initiative cannot “negate or limit” an act by the Council pursuant D.C. Code §§ 1-204.46 and 1-1001.16(b)(1)(D). The “act” referred to in D.C. Code § 1-1001.16(b)(1)(D) is defined in section 1-204.46 as the Budget Request Act which is passed by the Council and submitted to the President for transmission to Congress. Dorsey, 648 A.2d at 676. The Council relies on fiscal assumptions when preparing the Budget Request Act, which includes tax revenues. Id. The Budget Request Act is vitally important from the perspective of the elected officials of the District government, precisely because the process represents the District government’s power of the purse. Hessey, 601 A.2d at 10.
The court in Dorsey credited letters submitted by D.C. Councilmembers regarding the negative fiscal impact the proposed initiative would have on the District’s budget. One Councilmember wrote that the Council annually “relies on the revenue projected from civil fines for parking infractions, including revenues from booting of vehicles registered in the District and revenues from late payment, in their allocation of District government revenues in the adoption of the budget.” 648 A.2d at 676. A second Councilmember wrote that the initiative would have a “negative fiscal impact on the District, and that ‘all monies derived from parking and moving violations are significant elements of the District’s budget.’” Id. Based on the Councilmembers’ undisputed letters, the court held that the proposed initiative would have negated the Budget Request Act for that year given that the act was based on those projected revenues. Id. at 677.
Similarly, in this case, Councilmembers Brazil and Catania wrote letters concerning Initiative 66 and its potential negative fiscal impact on the District’s budget. Councilmember Harold Brazil wrote a letter to the Board on February 10, 2004, proclaiming the following:
It is undisputed that the Council utilizes fiscal assumptions in
preparing the Budget Request Act including projected revenues
from sales tax. A smoking ban will have a negative effect on the
income of bars, restaurants, and hotels in the District of Columbia,
and on the sales tax generated in those establishment. We need only
look at the experiences of our neighbor to the north, Montgomery
County, Maryland, which has enacted a ban on smoking, for irrefutable
evidence that such a ban has a negative effect on the hospitality industry
and thus will have a negative impact on the revenues realized by the
District from sales tax. In considering the “Smokefree Act of 2004”, I
believe it is imperative that we consider this information, and its impact….
The proposed law will impact the revenue assumptions, which have been
made in the formulation of the District’s budget, and this factor must be
considered in the Board’s determination of whether the measure is a
proper subject for initiative.
On the same date, Councilmember David A. Catania wrote a letter to the Board concerning Initiative 66, saying that, “Despite the laudable intentions of the ‘Smokefree Workplace Act of 2004’, I believe there would be serious financial consequences to the District were it put on the ballot and should it pass. Specifically, it is my belief that a ban on smoking in bars, restaurants, nightclubs, and hotels would have a serious, detrimental fiscal impact and result in a significant decline in revenues.”
As evidenced in the Government of the District of Columbia FY 2005 Proposed Budget and Financial Plan submitted to the Council by Mayor Anthony A. Williams, it is reported that the Council makes assumptions about the tax revenue to be earned from the sales and use tax on food, beverages, and the sale of cigarettes. The Restaurant Sales Tax (which includes bars) is projected to earn annual revenues between $18,632,000 and $22,105,000 from 2004 through 2008. The annual cigarette tax revenues are projected between $21,344,000 to $24,185,000 for 2003 through 2008.
Accordingly, this Court credits Councilmembers Brazil and Catania’s undisputed letters and finds that Initiative 66 is not a proper subject matter for an initiative because it “negates and limits” the Budget Request Act. It is evident that Initiative 66 will infringe upon the restaurant tax revenues relied upon by the Council, which in turn will create a negative fiscal impact on the District as realized in Dorsey.
B. The Board Provided Legally Sufficient Notice to the Public
Plaintiff argued in its motion that notice about the public meeting was inadequate because it was published in the D.C. Register just three (3) business days before the public meeting. Englert claims that he never received notice of the public hearing and was denied an opportunity to oppose Initiative 66.
In its summary judgment motion, Plaintiff relied on Kopff v. Alcoholic Beverages Control Bd., where the court ruled that notice to the public is a requirement of due process in order to give each citizen an “adequate opportunity to prepare and present its position.” 381 A.2d 1372, 1382-83 (D.C. 1977). Plaintiff further argued that notice cannot be “dispensed with at the whim of the Board.”
The Kopff case is distinguished from this case because it involved the Alcoholic Beverages Control Board and not the D.C. Board of Elections. The Alcoholic Beverages Control Board was specifically required by the D.C. Code to give notice of a hearing by advertisement published once a week, for at least 2 weeks in some newspaper of general circulation in the District, and posted in a conspicuous place outside of the premises. Kopff, 381 A.2d at 1382.
In this case, the D.C. Code is silent as to what constitutes legally sufficient notice for public meetings, meaning the Code does not specify the number of days in advance that notice should be given to the public like in Kopff. However, section 3-1001.2 of the Code of D.C. Regulations does require that the Board publish a notice of the public meeting concerning the approval of an initiative as a proper subject matter in the D.C. Register. On Friday, February 6, 2004, the Board complied with D.C. Regulation § 3-1001.2, and published a notice in the D.C. Register announcing a public meeting on Initiative 66 to be held on Wednesday, February 11, 2004. Additionally, the Board posted in its office the schedule for the hearing at least twenty-four (24) hours prior to the meeting pursuant to D.C. Mun. Regs. tit. 3 § 406.2. During the motions hearing, the Board stated that the schedule was also posted on its Internet webpage. On February 11, 2004, many supporters and opposers were present and were able to comment on Initiative 66 during the public meeting.
This Court recognizes the importance of notice and providing citizens an opportunity to oppose initiatives. After hearing oral arguments, this Court concludes that notice of the public hearing was legally sufficient since the notice was published in the D.C. Register five (5) calendar days before the public meeting was held, the Board’s agenda was conspicuously posted at its office 24-hours before the meeting, and it was available by the Internet.
In accordance with the foregoing, this Court grants Plaintiff RAMW, Cooper, and Englert’s Motion for Summary Judgment. An appropriate order in accordance with this Memorandum Decision is separately and contemporaneously issued this 21 st day of May 2004.
___________________________________________
Judge Mary A. Gooden Terrell
D.C. Superior Court
Copies to:
Andrew J. Kline, Esq.
1225 19 th St., Ste. 320
Washington, DC 20036
Craig C. Reilly, Esq.
1725 Duke St., Ste. 600
Alexandria, VA 22314
Rudolph McGann, Esq.
D.C. Board of Elections and Ethics
441 4 th St., NW, Ste. 270
Washington, DC 20001
John Hardin Young, Esq.
Joseph E. Sandler, Esq.
50 E St., SE
Washington, DC 20003
Non-profit corporation organized under D.C. law representing interests of member restaurants.
Registered qualified elector of D.C.
Registered qualified elector of D.C., who owns several restaurants in the Metro area.
Nonprofit public health organization.
This action was filed pursuant D.C. Code § 1-204.106 (2004) and D.C. Code § 1-1001.16(e)(1).
Cross-Summary Judgment motions were due on April 23, 2004. Oppositions to the cross-motions were due on April 30, 2004.
Initiative 66 was proposed by Sharlene Kranz.
Title 7 (Human Health Care and Safety), Chapter 17, D.C. Code §§ 7-1701 et seq.
The notice appeared in 51 D.C. Reg . 1417-25 (2004).
Title IV of the Self-Government Act, D.C. Code § 47-301.
The term initiative means “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.” D.C. Code § 1-204.101(a) (2004).
An example, also mentioned by Plaintiff during the motion hearing, of the District’s fiscal uniqueness was evidenced by a Congressional enactment in April of 1995, when the District was in a fiscal emergency and Congress created the Control Board, via the District of Columbia Financial Responsibility and Management Assistance Act of 1995 (FRMAA), to help alleviate the emergency. A. L. Eastmond & Sons, Inc. v. District of Columbia Contract Appeals Board, 795 A.2d 52, 54 (D.C. 2002).
Notwithstanding any personal preferences of this Court, Defendants argument that this is only a health initiative is incorrect as a matter of law.
Plaintiff’s Motion for Summary Judgment, Exhibit C.
Plaintiff’s Motion for Summary Judgment, Exhibit B.
During the motion hearing, Plaintiff conceded that Initiative 66 does not prohibit the sale of cigarettes at restaurants. Furthermore, Plaintiff failed to introduce any evidence that cigarette tax revenues would decrease if Initiative 66 was in effect, thus the issue of cigarette tax revenues being affected is of no moment.
The Court notes that the Plaintiff raised the issue of Initiative 66’s legislative form, specifically that three of the four findings were misleading and contrary to D.C. Code § 1-1001.16(c)(3). Although proper legislative form is an important factor that must be considered when evaluating an initiative, it is not a determinative factor. If Initiative 66 were deemed a proper subject matter, then the initiative would be remanded to the D.C. Board of Elections for corrections to the three findings.
Action on Smoking and Health
(ASH)
701 4th St. NW / Washington, DC
20001 / (202) 659-4310
A national nonprofit, scientific and educational organization founded
in 1967.
All donations are fully tax deductible.