Petition for Writ of Certiorari — Jackson v. District of Columbia Board of Elections & Ethics

Supreme Court, U.S

ried

160-513 ULT 12 70

: OFFICE OF THE CLERK

INTHE

Supreme Court of the Whuted States

N«

HARRY R. JACKSON, JR., et al...

Petitioners,

Vv.

DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND

Mrnics and DISTRICT OF COLUMBIA,

Respondents

On Petition for Writ of Certiorart

to the District of Columbia Court of Appeals

PETITION FOR WRIT OF CERTIORARI

GARY S. MCCALEB DAVID AUSTIN R. NIMOCKS

BRIAN W. RAUM Counsel of Record

JAMES A. CAMPBELL JULIE MARIE BLAKE

ALLIANCE DEFENSE FUND ALLIANCE DEFENSE FUND

15100 N. 90th Street 801 G Street, N.W

Scottsdale, AZ 85260 Suite 509

(480) 444-0020 Washington, D.C. 20001

(202) 393-8690

CLETA MITCHELL

animocks@telladforg

FOLEY & LARDNER, LLP

3000 K Street, N.W. #600

Washington, D.C. 20007

(202) 295-4081

Counsel for Petitioners

Harry R. Jackson, Jr., et al.

a eS ., "Wind Match

QUESTION PRESENTED

Given that the District of Columbia Council cannot

legislate in conflict with the District’s

congressionally enacted Charter, can it lmit the

people’s Charter-based right to initiate laws —a right

that Congress affirmatively approved and bestowed

upon the people—by unilaterally imposing a

substantive restriction on _— that broad = and

unambiguous right?

PARTIES TO THE PROCEEDING

Petitioners are Harry R. Jackson, Jr., Robert

King, Anthony Evans, Dale EK. Wafer, Walter KI

Fauntroy, James Silver, Melvin Dupree, and Howard

Butler. They are residents and registered voters of

the District of Columbia

Respondents are the District of Columbia Board

of Elections and Ethics, which was the only named

,°

respondent in this action, and the District of

Columbia, which intervened as a respondent

11)

TABLE OF CONTENTS

QUESTION PRESENTED .....

PARTIES TO THE PROCEEDING...

TABLE OF AUTHORITIES ......

DECISIONS BELOW......

STATEMENT OF JURISDICTION ....

PERTINENT STATUTORY PROVISIONS

STATEMENT OF THI CASE...

A. Statutory Background.............

B. Factual Background....

C. Procedural Background................

REASONS FOR GRANTING THE WRIT..........

Vi

. ad

1 ‘THE DISTRICT OF COLUMBIA COURT OF

APPEALS INCORRECTLY DECIDED

IMPORTANT QUESTIONS CONCERNING

CONGRESSIONAL ENACTMENTS.................

A. Congressional Knactments Creating and

Are

Central in this Case and Supreme in the

PRN ices Ginette ten Cee a a ee ia eas

Amending the Diustrict’s Charter

B. This Case Implicates Important Federal

and Congressional Interests. .....................05. 15

C. The D.C. Court of Appeals Ratified the

Council's Unauthorized Altcration of the

District's Congressionally Approved

Division of Legislative Power........ 17

D. Congress’s Failure to Act Legislatively

Does Not Foreclose This Court’s

Obligation to Interpret and Iinforce the

II rultucs ac acacucehovssasuaseseseeuss stares covecenceren 20

HW. THIS COURT SHOULD NOT DEFER TO

THE DISTRICT OF COLUMBIA COURT OF

APPEALS ON THIS QUESTION. .............. | +

A. Deference 1s Unwarranted Because this

Case Does Not Present Matters. of

Ixclusively Local Concern. ................... 24

B. Deference is Unwarranted Because

lsgregious Error Has Been Committed......... 26

C. Deference is Unwarranted Because the

liome Rule Act as Amended Is a

Congressional Organic Act That Demands

RE TO CERN CNR a occ sits cicccscavecsencsexdccascansss 30

D. Extending Deference on a Local Matter

Does Not Require That this Court Deny

Review.......... cane budedasacawcoabewanrsds tes caandeea ee

CONCLUSION .......2...-. tee ne 33

APPENDIX:

District of Columbia Court of Appeals Opinion

GUE: Bi PI ocoss svc carscscacscanimeasst et a ee la

Superior Court of the District of Columbia

Opinion and Order (January 15, 2010)...

District of Columbia Board of Elections and

Ethics Opinion and Order

(November 17, 2009) ...

Petition for Review of Agency Decision and for

Writ in the Nature of Mandamus (November 18,

2009)

Vi

TABLE OF AUTHORITIES

District of Columbia Cases:

Blodgett v. University Club,

930 A.2d 210 (D.C. 2007)

Convention Center Referendum

Committee. v. Board of Elections and

Ethics, 399 A.2d 550 (D.C. 1979) .

Executive Sandwich Shoppe, Inc. v. Carr

Realty Corporation, 749 A.2d 724

(D.C. BOOS) .....0000.

Hessey v. District of Columbia Bd. of

Elections and Ethics, 601 A.2d 3 (D.C.

ee a

Stevenson v. District of Columbia Bd. of

Elections and Ethics, 683 A.2d 137]

sacs iciascaankscnccsssesince a akabass

Other State Cases:

CLEAN uv. State,

928 P.2d 1054 (Wash. 1996)........ |

Federal Cases:

ASARCO Inc. v. Kadish,

490 U.S. 605 (1989)

Clayton v. People of the Territory of Utah,

132 U.S. 632 (1890)

Re:

14

3]

De Castro v. Board of Commissioners of

San Juan, 322 U.S. 451 (1944) 32, 33

District of Columbia v. Heller,

554 U.S. --, 128 8. Ct. 2783 (2008) 29

District of Columbia v. John R. Thompson

Co., 846 U.S. 100 (1953) 23, 30

Ferguson v. Skrupa,

372 U.S. 726 (1968) 18

Fisher v. Untted States,

328 U.S. 463 (1946) 26

Granville-Smith v. Granville-Smith,

349 U.S. 1 (1955).... 3]

Griffin v. United States,

3386 U.S. 704 (1949) 20)

In re Sawyer,

360 U.S. 622 (1959) 25. 26

Jackson v. District of Columbia Board of

Elections and Ethics, 559 U.S. --, 130

S. Ct. 1279 (2010).........60- rae 9,10

Kent v. United States,

383 U.S. 541 (1966) 23, 26

Leis v. Flynt,

439 U.S. 438 (1979)........ 220

Viti

Lassen v. Arizona,

385 U.S. 458 (1967)

Limtiaco v. Camacho.

549 U.S. 483 (2007)

Nordlinger v. Hahn,

505 U.S. 1 (1992)

Pernell v. Southall Realty,

416 U.S. 363 (1974).

Puerto Rico v. Russell & Co..,

315 U.S. 610 (1942)....

Springer v. Government of Philippine

Islands, 277 U.S. 189 (1928) ..

Tutt v. Doby,

459 F.2d 1195 (D.C. Cir. 1972)

United States v. Edmond,

924 F.2d 261 (D.C. Cir. 1991)

Whalen v. United States,

445 U.S. 684 (1980)..... 22. §

Constitutional Provisions

U.S. Const. art. I, § 8, cl. 17

Statutes:

28 U.S.C. § 1257(a).......

30)

24, Zd, 30

18

26

1, 32

| + Fay.

A

20

13, 24, 26

S 61D

|

§ 1257(b)

D.C. Code § 1-125(b) (1977 Supp.)

Code § 1-201.02(a)...

». Code § 1-203.01....

». Code § 1-203.02

Code § 1-203.03....

». Code § 1-203.03(a)....

Code § 1-203.03(b)..

Code § 1-204.01(a)..

. Code § 1-204.101(a).....

». Code § 1-204.102(b)(2)

>. Code

». Code § 1-206.01

», Code § 1-206.02(a)..... |

’ Code § 1-206.02(c) .....0... |

». Code

», Code § 1-207.61(a)

‘. Code § 1-1001.16(b)(1).....

Code 1.1001.16(b)(1)(C)

Code § 2-1402.51l(a)

(Code ‘ 46-40 l(a)

1).C. Code S 46-405.01

Other Authorities:

24 D.C Rep 199 (.)) ly 5. Q'7 7)

BLACKS LAW DICTIONARY (8th ed. 2004)

D.C. Law 12-242, 46 D.C. Reg

(April 20, 1999)

D.C. Law 14-189, 49 D.C. Re

(October 1, 2002)

D.C. Law 15-309, 52 D.C

(April 8, 2005).

D.C. Law 16-58. 53 D.C

(March 8, 2006)

D.C. Law 17-177, 55 D.C gy 3696

(June 25, 2008)

54, 111th Cong. (1st Sess. 2009)

Res. 72. lllth Cong

(2nd Sess. 2010)

Home Rule Act Amendment Herring

and Markups on H. Con. Res. 436 &

438—Initiative and Referendum,

Before the Subcomm. on Fiscal and

Government Affairs of the Comm. on

D.C., 95th Cong. 157 (1978)

H R VAs tle? l11ith (Cong (] T Se AU09)

H.R. 4430, 111th Cong. (2nd Se

H.R. Con »s. 464, 95th Cong. (1978)

H.R. Con 1s, 471. 95th Con (19/3)

H.R. Rep. No. 95-890 (1978)

Referendums in the District of Columbia

Hearing Before the Comm. on the

District of Columbia, 95th Cong. 53

(19783)

2980, 111th Cong. (2nd Si 2010)

H.R. 4872, 111th Cong. (2nd Se 2010)

S Rep No QOH 673 (1978)

DECISIONS BELOW

The opinion of the District of Columbia Court of

Appeals is officially reported at 999 A.2d 89 and

reprinted at App. la-98a. The Superior Court of the

District of Columbia's opinion is unofficially reported

at 2010 WL 171913 and reprinted at App. 99a-128a.

And the decision of the District of Columbia Board of

Klections and Ethics is not reported, but is included

in the Appendix at App. 129a-146a

STATEMENT OF JURISDICTION

The District of Columbia Court of Appeals issued

and entered its decision on July 15, 2010. This

Court has jurisdiction under 28 U.S.C. § 1257(a) and

(b)

PERTINENT STATUTORY PROVISIONS

Section 752 of the District of Columbia Self

Government and Government Reorganization Act

(“Home Rule Act’), which was enacted in 1973 by the

United States Congress, and thereafter approved by

the voters of the District of Columbia, states

“Notwithstanding any other provision of this chapter

or of any other law, the [District of Columbia]

Council shall have authority to enact any act or

resolution with respect to matters involving or

relating to elections in the District.” D.C. Code * 1

207.52.

Section l(a) of Amendment No. 1 of the

Initiative, Referendum, and Recal] Charter

Amendment Act (“Charter Amendment Act” or

“CAA”), which became effective in 1978 after it wa

jointly approved (as required in the Home Rule Act)

by Congress, the District of Columbia voters, and the

District of Columbia Council, states “The term

‘Initiative’ means the process by which the electors of

the District of Columbia may propose Jaws (except

laws appropriating funds) and present such proposed

laws directly to the registered qualified electors of

the District of Columbia for their approval or

rt’?

ad) approval.” D.C Code & 1-204.10 1a)

section 8&8 of Amendmen

Amendment Act provide

District of Columbia shall adopt

necessary to carry out the purpose 11 ubpart

(dealing with the people’s right of initiative] within

1L8O day of the effective date of thi

Neither ; on initiating an initiative

referendum \ * preset nted te t he Dis

Columbia B of Election

(octopner! ] ] / (lode

. 7rTqQIQ> ’

mht Kct (HRA restriction

Initiative, Referendum. and Recall Procedurs

‘Initiative Procedures Act” or “IPA”). enacted

he District of Columbia Council tate

(b)(1) | nm receipt ol each

initiative or referendum measure

Board shi refuse LO accept

soard finds that it 1

proper subject O] Initiative

referendum

und I

District of Columbia Home Rule Act, or

upon any of the following grounds

A s -

(C) The measure authorizes. or

would have the effect yf

authorizing, liscrimination

prohibited under Chapter 14 of

Title 2 [which is the “Human

IC. Code § 1-1001 LEMME

STATEMENT OF THE CASE

A. Statutory Background

The United States Constitution grants Conpre

complete legislative power over the District of

Columbia. U.S. Const. art. I, § 8, cl. 17. In 1978,

Congress enacted the District of Columbia Self

Government and Government Reorganization Act

(“Home Rule Act”), Pub. L. No. 93-198, 87 Stat. 777

(1973). Title IV of the Home Rule Act is the District

of Columbia Charter, which created a tripartite form

of government in the District and “established a

Council of the District of Columbia.” D.C. Code § 1

204.01(a) Congress granted extensive (but not

complete) legislative power to the Council, see id. at

The other provisions of the IPA are procedural (rather

than substantive) in nature. See App. 6a-7a (printing D.C

Code § 1-1001.16(b)(1) in its entirety)

§§ 1-203.02, 1-206.02(a), while’ simultaneously

affirming its own ultimate constitutional authority

over the Council, see id. at § 1-206.02(c).

The District Charter, as designed by Congress,

took effect only after “its acceptance by a majority of

the registered qualified electors of the District voting

thereon in a charter referendum.” D.C. Code § 1

203.01. The people approved the Charter in 1973. It

included, as 1s pertinent here, Section 752 of the

Home Rule Act, which granted the Council

“authority to enact any act or resolution with respect

to matters involving or relating to elections in the

District.” Jd. at § 1-207.52

The Home Rule Act provides a procedure for

amending the Charter, requiring congressional

approval, following collaboration by the Dzustrict’s

voters, the Mayor, and the Council. See D.C. Code §

1-203.03 A proposed amendment first must be

approved by the Council, signed by the Mayor, and

ratified by the District’s voters. Jd. at § 1-203.02(a)

Then it must be submitted to Congress.:

In 1977, the Counal, the Mayor, and the

District's voters approved the Initiative,

Referendum, and Recall Charter Amendment Act

(“Charter Amendment Act” or “CAA”), 24 D.C. Reg

199 (July 8, 1977). In March 1978, Congress passed

a concurrent resolution approving the CAA. See

The Home Rule Act originally required Congress to

“adopt a concurrent resolution approving” any proposed

amendment to the District Charter, D.C. Code § 1-125(b) (1977

Supp.), but the Charter amendment process now requires only

a period of congressional review. D.C. Code § 1-203.03(b)

H.R. Con. Res. 464 and 471, 95th Cony. (1978)

Without Congress’s action, the CAA would not have

become law. Thus, Congress, the District’s voters,

the Mayor, and the Council collectively placed into

the Charter the right of initiative for the District

voters, enabling them to initiate the enactment o

laws

Section 1 of Charter Amendment Ni | define

the citizens substantive right of initiative, providing

that “initiative’ means the process by which the

electors of the District of Columbia may propose law

(except laws appropriating funds) and present such

proposed laws directly to the registered qualified

electors of the District|.]” D.C. Code § 1-204.101(a)

The Charter thus contains only one expre

substantive limitation on the initiative power

voters may not propose “laws appropriating funds’

a limitation that plainly does not apply to th

proposed initiative at issue in this case. See App

19a-20a. So, except as to “laws appropriating funds,’

the voters and the Council were placed on equal

footing as substantive lawmakers for the District

Section 8 of Charter Amendment No. 1 contain

a “legislative mandate” for the Council to enact

procedural “implementing legislation” for the

people’s newly created initiative right Se

Convention Ctr. Comm Bd. of Elections and

' The District of Columbia had a= rich history f

congressionally enabled direct democracy before the creation of

the CAA. Referendums in the District of Columbia: Hearing

before the Comm. on the District of Columbia, 95th Cong. 53-61

(1978) (research by Nelson Rimensynder, Staff, Comm. on the

District of Columbia)

Kthics, 399 A.2d 550, 553 (D.C. 1979) That

provision authorized the Council, “within 180 days of

the effective date of [the CAA],” to “adopt such acts

as are necessary to carry out the purpose” of the

Charter provisions that created the people's

initiative right. D.C. Code § 1-204.107

Although it took longer than 180 days, the

Council enacted its implementing legislation, known

as the Initiative, Referendum, and Recall Procedures

Act of 1979 (‘Initiative Procedures Act” or “IPA’). In

addition to estabhshing Initiative procedures, the

IPA also imposed a substantive limitation on the

people's initiative nght. That lmitation—known as

the HRA restriction—states, in pertinent part, that

‘the Board shall refuse to accept [a proposed

initiative] if the Board finds that it . authorizes, or

would have the effect of authorizing, discrimination

prohibited under [the D.C. Code].” D.C. Code § 1

1001.16(b)(1)(C)

The Council may not enact legislation

inconsistent with the Charter. See D.C. Code § 1

203.02: td. at §& 1-207.61(a) Thus. before the

enactment of the IPA, both Corporation Counsel and

the Council’s General Counsel informed the Council

that 1t did not have authority to impose the HRA

restriction on the people’s initiative right. The

‘ See Supplemental Memorandum from Louis P. Robbins

Principal Deputy Corporation Counsel, Office of — the

Corporation Counsel, to Judith W. Rogers, Special Assistant for

Legislation (June 2, 1978); 3 Op. C.C.D.C. 102, 108 (1978)

(“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

Council nevertheless enacted the IPA with the HRA

restriction in place

B. Factual Background

On May 5, 2009, the Council enacted the Jury

and Marriage Amendment Act of 2009, recognizing

in the District “[a] marriage legally entered into in

another jurisdiction between [two] persons of the

same sex| |” D.C. Code § 46-405.01 That legislation

became law on July 7. 2009

On September 1, 2009, Petitioners, who are eight

residents and registered voters of the Dhistrict

(hereafter referred to as “Proponents ), filed with the

District of Columbia Board of Elections and Ethic

(the “Board”) the Marriage Initiative of 2009 which,

if approved by the voters, would add to the D.C

Code that “[o]nly marnage between a man and a

woman 1s valid or recognized in the District of

Columbia.” App. 6a. On November 17, 2009, the

Board rejected Proponents initiative because, in 1t

opmion, that measure was barred by the HRA

]

restriction. See App lada-l45a

legislation may only be accon phi shed by the Charter Amendit

Procedure or by Act of Congress.”); Memorandum from Edward

B. Webb, Jr., General Counsel, to Council Members (June 7

1978) (attaching the upplemental memorandum _ fron

Corporation Counsel and stating that the Human Right

restriction “engralts a new requirement not in the Charter

amendment” and thus ts “an indirect attempt to further amend

the Charter and is, therefore, legally without effect’)

’ Petitioners filed a referendum with the Board to enabl

the people to vote directly on the Councils May » ZOUOY

legislation, but the Board rejected the referendum, relying o1

the HRA restriction for its decision. App. 101la-102a

On December 15, 2009, the Council approved the

Religious Freedom and Civil Marriage Equality

Amendment Act of 2009, which states inter alia that

“laJny person may enter into a marriage in the

District of Columbia with another person, regardless

of gender|.]” D.C. Code § 46-401(a). That enactment

became law on March 3, 2010.6

C. Procedural Background

On November 18. 2009 -the day after the Board

rejected the Marriage Initiative of 2009—Proponents

filed this lawsuit with the Superior Court of the

District of Columbia, seeking a writ in the nature of

mandamus compelling the Board to accept the

Marriage Initiative of 2009 and present it to the

voters. The District of Columbia intervened to

defend the Board’s decision. The parties then filed

cross motions for summary judgment

In their lawsuit, Proponents made the claim

presented here—that the HRA restriction is invalid

because it conflicts with the broad right of initiative

adopted by Congress, the voters, and the Council

App. 164a-166a. Proponents fully bmefed that

argument in their motion for summary judgment, see

Pet'rs Mem. in Supp. of Mot. for Summ. J. at 7-17;

and on January 14, 2010, the Superior Court

Proponents also filed a referendum with the Board to

enable the people to vote directly on the Council's December 15.

2009 legislation, but the Board re je cted that referendum, again

relying on the HRA restriction Proponents appealed this

denial until the legislation became effective which, by operation

of law, extinguished Proponents’ referendum right and mooted

their appeal. See D.C. Code § 1-204.102(b)(2))

addressed their petition in its order granting the

District’s motion for summary judgment, concluding

that “[t]he [HRA restriction] is consistent with the

intent of the CAA and does not impermissibly create

a new exception to the initiative right.” App. 106a

117a. The very next day, January 15, 2010,

Proponents filed their notice of appeal to the District

of Columbia Court of Appeal

On appeal, Proponents again raised the question

presented here—*“|w|hether the D.C. Council's use of

the [IPA] to impose the Human Rights’ Act

restriction on the citizens right of initiativel] 1

invalid when the [CAA] provides the citizens of the

District of Columbia’ co-extensive lawmaking

authority with the D.C. Council, except only for ‘law

appropniating funds.” See Br. of Appellants to D.C

Ct. of Appeals at 1. Proponents argued, in short

that the Council's attempted use of the IPA to

restrict the people's broad initiative right 1

invalid exercise of legislative power.”

Meanwhile, Proponents sought, through parallel

legal proceedings, to allow the people to vote directl

on the Council’s December 15, 2009 legislatior

pertaining to marriage. ‘Their appeals culminated in

an emergency stay application filed with’ th

lionorable Chief Justice John G. Roberts, Jr. in hi

role as Circuit Justice, contending that irreparabl

harm would result were a stay not issued. The Chief

Justice recognized that VProponents’ substantiv

“argument has some force,” but concluded that

stay [was] not warranted.” -fackson v. District of

Columbia Bd. of Elections & Ethics, 559 U.S , 130

S. Ct. 1279, 1280 (2010). The Chief Justice rested

his decision, 1n part, on the fact that the District of

Columbia Court of Appeals would eventually

consider Petitioners’ substantive argument in this

case, and that Proponents would “have the right to

challenge any adverse decision through a petition for

certiorari in this Court at the appropriate time.” /d

That time has now come, following nearly two year

{f Proponent pursuing every possible avenue t

exercise their right f direct democracy on tl

ipject

On July 15, 2010, the D.C. ¢ irt of Appeal n

five-to-four decisio1 iddressed the yuestion

pres nted ner but found that the THRA

restriction] 1s consistent with the intent of the CAA

App. 22a-49a. That conclusion rests on thorough

flawed reasoning that musconstrue ne pla

language of the initiative right, as well as Conegrs

pecific grant of authority for the Council to merely

impleme nt the broad prant | nitiative powe! te

rr peopl not to } trict ’ t ‘ rat

tne power

hous m tlhe OLLeCLIVe eliort ; f re

citizens of the District (through a direct vote), the

Via 3 ana tne Coun were required to establisi

the people's initiative right, the Court of Appeal

focused solely on the Councils intent concerning the

people's Initiative power witnout regard for tt

‘pA

intent of Congress or the people. See, e.g., App. 24a

26a. The dissenting opinion indentified this flaw u

the majority's decisio1 App. 88a. The dissente)

remarked that the majority “focused single-mindedlys

yn the supposed intent of the Council,” but “pointlied

{ no eV dence that the VOLeC! of the District !

members of Congress (all indispensable partners in

amending the Charter) thought they were delegating

to the Council an undefined power to lhmit the right

of initiative in any way the Council thought

necessary. ld

The majority also tortured the Charter’s plain

language and clear context, taking Congress's simple

directive in Section 8 of Charter Amendment No. 1

(which instructed the Council to enact procedural

implementing legislation for the initiative process),

and transforming it into a far-reaching grant of

legislative power enabling the Council

substantively restrict or functionally abolish

people’s initiative right. App. 27a-35a; td. at 30a

n.23 (comparing Section 8 of Charter Amendment

No. 1 to the Necessary and Proper Clause of the

United States Constitution). ‘The dissenting judges

in contrast, discerned that the “necessary to carry

ut the purpose” language of Section 8 of Charte1

Amendment No. 1 “was a mandate to enact

implementing legislation,” and thus did not grant

the Council “any license to restrict [the initiative]

right[]," which was “established through _ the

painstaking process of amending the Charter.” App

Sla

The majority additionally conveyed unbounded

authority to the Council through Section 752 of thi

Home Rule Act. Section 752, enacted by Congress

vears before the initiative right came into existence,

sives the Council general powers over “matters

involving or relating to elections.” D.C. Code § 1

207.52. That provision, the majority reasoned, gave

the Council seemingly unfettered “authority to enact

12

laws giving direction to the Board in the handling of

election matters,” which included the ability to alter

the substance of the people’s later-enacted initiative

power. According to the court, all the Council did in

imposing the HRA restriction was use its authority

under Section 752. App. 53a.

Again, the dissent noted the fundamental error

with the majority’s use of Section 752: “If a Charter

amendment was necessary to create the right of

initiative, an amendment is equally necessary to

limit that right. . . . The Council's authority

relating to elections, found in Section 752, did not

(and cannot) authorize a restriction amounting to an

amendment of the Charter.” App. 95a. If the

Council’s powers under Section 752 are as broad as

the majority claims, the dissent remarked, nothing

could “preclude the Council from imposing additional

subject matter limitations on the right of initiative

or, indeed, from extinguishing that right altogether,”

which, under the system designed by Congress, “may

be done only by going through the intentionally}

cumbersome process of amending the Charter.” App

95a-96a.

The majority’s expansive reading of the Council’

power under Section 752, moreover, suggests that

the Council could have created the initiative right

without amending the Charter. The dissent,

however, flatly rejected that proposition because the

initiative “is an exercise of legislative power,” which

ultimately resides in Congress, and thus “[clreating

that right... required a Charter Amendment.” App

95a.

REASONS FOR GRANTING THE WRIT

THE DISTRICT OF COLUMBIA COURT OF

APPEALS INCORRECTLY DECIDED

IMPORTANT QUESTIONS CONCERNING

CONGRESSIONAL ENACTMENTS.

This Court may grant certiorari when a lower

court has decided an important question of federal

law that should be settled by this Court. That is

appropriate here, where the D.C. Court of Appeals

allowed the Council to usurp a congressional grant of

power,

Multiple congressional enactments—specifically,

the Home Rule Act and the concurrent resolution

approving the CAA—created provisions in the

District’s Charter that divide legislative power in the

District among Congress, the people, and the

Council, with the ultimate power over all matters

residing in Congress. That division of legislative

power, then, while approved by the people and the

Council, ultimately rests upon federal law and

congressional approval

In this case, the D.C. Court of Appeals ha

allowed the Council to unilaterally impose a

substantive restriction on the people's initiative

right, thereby effectuating an unauthorized change

in the division of legislative power. Moreover, the

D.C. Court of Appeals’ interpretation of the

Charter—particularly Section 752 of the Home Ruie

Act and Section 8 of Charter Amendment No. |!

bestows unapproved and extensive authority upon

the Council to further erode the people’s initiative

power, or otherwise alter Congress's division of

legislative power within the District of Columbia

A. Congressional Enactments Creating and

Amending the District’s Charter Are

Central in this Case and Supreme in the

District.

This case requires the interpretation of multiple

congressional enactments. Respondents claim, and

the D.C. Court of Appeals found, that Section 752 of

the Home Rule Act, Pub. L. 93-198, 87 Stat. 777

(1973)—an Act of Congress ratified by the District’

voters—permitted the Council’s creation of the

legislative restriction on the people’s Charter-based

initiative right. This appeal also directly implicates

Sections 1 and 8 of Charter Amendment No. 1, which

required affirmative approval by a _ concurrent

resolution of Congress. See H.R. Con. Res. 464 and

471, 95th Cong. (1978); cf. Stevenson v. District of

Columbia Bd. of Elections and Ethics, 683 A.2d

1371, 1375 (D.C. 1996) (“[I]t is not without

significance that Congress affirmatively approved

the Charter Amendments Act after passage by thi

Council.”); D.C. Code § 1-125(b) (1977 Supp.)

In establishing the home-rule governance within

the District of Columbia, Congress designed a

system _ that prohibited the Council from

contradicting or undermining congressionally

enacted Charter provisions, like the CAA. See D.C

Code § 1-203.02 (noting that “the legislative power of

the District” must be “consistent with the

provisions of [the Home Rule Act],” which include

the Charter); id. at §& 1-207.61(a) (“To the extent that

anv ol

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Inconsistent with

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Rule Act}

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B. This Case lmplicates Important Federal

and Congressional Interests.

the legislative

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203.03(b). 1

shared some of that power with the citizen

(Congress 1s

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Code §§ 1-201.02(a), 1

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District, permitting both the Council and the peopl

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Council has arrogated authority to abrogate

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delegation of authority enables the District's citizen

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right of initiative—to various custodians

Canhh Manage Own

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thu

and Council to own

question Ireeing

resources to focus on federal issues of nationwide

scope. Indeed, when enacting the Home Rule Act,

Congress's stated intent was, among other things, to

“orant to the inhabitants of the District of Columbia

powers of local self-government” and to “relieve

Congress of the burden of legislating upon

essentially local District matters.” D.C. Code § 1-

201.02(a).

The people’s initiative right, in particular, plays

a vital role in achieving that important federal

objective. In the absence of that power, when the

citizens’ views conflict with the Council’s, their sole

recourse (other than electing new Council members)

is to lobby Congress to intervene and exercise its

power over the District. See D.C. Code §§ 1-

201.02(a), 1-206.01. But when the people possess

direct power to enact their own legislation or refer

Council-enacted legislation for a popular vote, their

need to trouble Congress is significantly diminished.

The initiative power thus furthers this federal

interest.

Recent events prove the point. The collective

actions of the Respondents and D.C. courts have left

the District’s citizens without immediate recourse on

the issue of marriage. The people have thus urged

congressional representatives to address. this

situation, prompting a flurry of congressional action

to address the repeated denial of the citizens’ right

to vote.? Additionally, the District’s citizens who are

7 See H.R. 2608, 111th Cong. (1st Sess. 2009) (“To define

marriage for all legal purposes in the District of Columbia to

consist of the union of one man and one woman.”); H.J. Res. 54,

concerned about this issue (and any other issue

purportedly precluded by the HRA restriction) will

continue to lobby Congress for action—both on this

topic and any other matters that the Council

excludes—consuming important congressional

resources.

The important federal and_ congressional

interests in the vitality of the District’s delegated

legislative power warrant this Court’s review.

C. The D.C. Court of Appeals Ratified the

Council’s Unauthorized Alteration of

the District’s Congressionally Approved

Division of Legislative Power.

By affirming the HRA restriction, the D.C. Court

of Appeals approved a Council-imposed limitation on

the people’s Charter-based initiative power. This

significant restriction on the people’s rnght of

initiative materially altered the congressionally

approved division of legislative power in the District.

111th Cong. (1st Sess. 2009) (“Disapproving the action of the

District of Columbia Council in approving the Jury and

Marriage Amendment Act of 2009.”); H.R. 4430, 111th Cong.

(2nd Sess. 2010) (“District of Columbia Referendum on

Marriage Act of 2010”); S. 2980, 111th Cong. (2nd Sess. 2010)

(“A bill to protect the democratic process and the right of the

people of the District of Columbia to define marriage.”); H.J.

Res. 72, 111th Cong. (2nd Sess. 2010) (““Disapproving the action

of the District of Columbia Council in approving the Religious

Freedom and Civil Marriage Equality Amendment Act of

2009.”), S. Amdt. 3568 to H.R. 4872, 111th Cong. (2nd Sess.

2010) (“To protect the democratic process and the right of the

people of the District of Columbia to define marriage.”).

The HRA, as the D.C. Court of Appeals has

recognized, 1s a constantly evolving® and “far-

reaching prohibition against discrimination of many

kinds.” EKxecutive Sandwich Shoppe, Inc. v. Carr

Realty Corp., 749 A.2d 724, 732 (D.C. 2000). Its

numerous protected classifications make it one of the

broadest nondiscrimination laws in the nation,

outlawing differential treatment based on many

nontraditional classifications such as “source of

income[] or place of residence or business of any

individual.” See, e.g., D.C. Code § 2-1402.31(a).

Since the Act’s inception, the Council has continually

added new classifications and will undoubtedly add

more in the future. See Blodgett v. University Club,

930 A.2d 210, 218 n.4 (D.C. 2007).

That “far-reaching” legislation, as incorporated

through the IPA, significantly restricts the people’s

initiative power. Nearly all statutes, including those

enacted by the people through the initiative process,

create classifications. See Nordlinger v. Hahn, 505

U.S. 1, 10 (1992); Ferguson v. Skrupa, 372 U.S. 726,

732 (1963). And the HRA restriction, a mere

legislative enactment of limitless elasticity, prohibits

the people from proposing any initiative that, in the

Board’s opinion, distinguishes or could have the

effect of distinguishing based on any of the current

and future classifications in the Act. See D.C. Code §

1-1001.16(b)(1)(C). The myriad of classifications

8 The D.C. Council has modified the HRA on multiple

occasions since its original enactment. See, e.g., D.C. Law 12-

242, 46 D.C. Reg. 952 (April 20, 1999); D.C. Law 14-189, 49

D.C. Reg. 6523 (October 1, 2002); D.C. Law 15-309, 52 D.C. Reg

1718 (April 8, 2005); D.C. Law 16-58, 53 D.C. Reg. 14 (March 8,

2006); D.C. Law 17-177, 55 D.C. Reg. 3696 (June 25, 2008).

19

contained in the HRA remove legislative power from

the people to enact many legitimate, non-invidious

measures.? This restriction, therefore, significantly

alters the congressionally approved division of

legislative power in the District.

The rationale employed by the D.C. Court of

Appeals now affords multiple avenues for the

Council (without affirmative approval from Congress

or the District’s voters) to further erode or even

practically abolish the people’s initiative right.

First, as described, the Council could (and likely will)

add other classifications to its constantly expanding

Human Rights Act, thereby enlarging that statutory

provision to further stifle the people’s legislative

power.

Second, the Council may impose additional

restrictions on the people’s initiative power through

Section 8 of Charter Amendment No. 1, as that

congressionally approved provision has_ been

construed by the D.C. Court of Appeals in this case.

But Section 8, on its face, simply authorizes the

Council to enact procedural implementing legislation

for the initiative process. See D.C. Code § 1-204.107.

Indeed, that was Congress’s understanding of

Section 8. See H.R. REP. NO. 95-890, at 17 (1978).

Yet, the D.C. Court of Appeals has now authorized

the Council to use that provision to impose

9 The HRA restriction, for example, would likely prevent

the people from proposing any statute that treats homeowners

more favorably than renters, or persons residing in the District

more favorably than persons residing outside the District,

because such a law would discriminate on the basis of “place of

residence.”

20

substantive restrictions on the people’s initiative

right. App. 27a-35a.

Third, the Council may impose _ additional

restrictions on (or conceivably chminate) the people’s

initiative power by citing to the D.C. Court of

Appeals’ interpretation of Section 752 of the Home

Rule Act. Section 752 grants authority to the

Council “to enact any act or resolution with respect

to matters involving or relating to elections in the

District.”. D.C. Code § 1-207.52. That provision,

according to the D.C. Court of Appeals, provides the

Council with seemingly unbounded “authority to

enact laws giving direction to the Board in the

handling of election matters” (even, as in this case,

laws that impose a substantive restriction on the

people’s initiative power). App. 53a.

In sum, the D.C. Court of Appeals’ decision

drastically transforms the congressionally approved

division of legislative power in the District. This

Court should now intervene to restore the proper

legislative design.

D. Congress’s Failure to Act Legislatively

Does Not Foreclose This Court’s

Obligation to Interpret and Enforce the

Charter.

It is the federal judiciary’s function to construe

congressional enactments. Congress should not be

relied upon to “re-legislate” or fix misapplications of

the law, as that is the role that the judiciary is

designed to fulfill. Thus, although Congress has

reserved ultimate legislative authority over the

District, see D.C. Code §§ 1-201.02(a), 1-203.03(b), 1-

206.01, and can repeal the HRA restriction, or

otherwise enact legislation removing substantive

impediments to the people’s initiative power, these

considerations do not support this Court’s denying

review. To the contrary, when faced with the D.C.

Court of Appeals’ erroneous’ construction of

congressional enactments, this Court = should

intervene and relieve the burden from Congress to

rectify the Council’s unauthorized actions.

Moreover, Congress's failure to reject or overturn

the HRA restriction does not amount to implicit

congressional approval of that measure. In similar

situations, where Congress has not acted against

local overreaching, this Court’s precedent indicates

that an “inference of |] approval by Congress from its

mere failure to act . . . cannot reasonably be

indulged.” Springer v. Government of Philippine

Islands, 277 U.S. 189, 208-09 (1928) (involving a

United States territory's enactment of a law

conflicting with Congress's organic act distributing

governmental power in that territory); Clayton v.

Utah, 132 U.S. 632, 642 (1890) (“[I]t can hardly be

admitted, as a general proposition, that, under the

power of congress reserved in the organic acts of the

territories to annul the acts of their legislatures, the

absence of any action by congress is to be construed

to be a recognition of the power of the legislature to

pass laws in conflict with the act of congress under

which they were created.”). “To justify the

conclusion that Congress has consented to the

violation of one of its own acts |delineating the

division of power for a territorial government] will

require something more than such inaction upon its

part|.|” Springer, 277 U.S. at 208.

Finally, forcing Congress to correct the D.C.

Court of Appeals’ decision and restore the agreed-

upon balance of legislative power in the District

thwarts the federal interest in jointly empowering

the District’s citizens and Council so that Congress

is free to focus on _ federal matters. This

consideration thus weighs in favor of this Court’s

granting review, affirming the proper construction of

the congressionally approved Home Rule Act and

CAA, and furthering Congress’s overriding federal

interest in focusing on federal matters.

Il. THIS COURT SHOULD NOT DEFER TO

THE DISTRICT OF COLUMBIA COURT OF

APPEALS ON THIS QUESTION.

This case involves’ the interpretation of

congressional enactments applicable specifically

within the District. “[I]t has been the practice of

th{is] Court to defer to the decisions of the courts of

the District of Columbia on matters of exclusively

local concern.” Whalen v. United States, 445 U.S.

684, 687 (1980). But as this Court has recognized:

[I]t is clear that [this practice] is a matter of

judicial policy, not a matter of judicial

power. Acts of Congress affecting only the

District, like other federal laws, certainly

come within this Courts Art. _ III

jurisdiction, and thus we are not prevented

from reviewing the decisions of the District

of Columbia Court of Appeals interpreting

those Acts in the same jurisdictional sense

that we are barred from reviewing a state

court's interpretation of a state statute.

ld. at 687-88.

This Court, therefore, has properly stepped in

when the D.C. courts have gone astray. See, e.g., id.,

445 U.S. at 688 (refusing to defer because the federal

claim could not “be separated entirely from a

resolution of the question of statutory construction’);

id. at 695-96 (White, J., concurring) (refusing to

defer because the D.C. court committed significant

error in its statutory interpretation); td. at 696-97

(Blackmun, J., concurring) (refusing to defer because

the D.C. court’s decision fell within the class of

“exceptional situations where egregious error has

been committed”); Kent v. United States, 383 U.S.

541, 557 n.27 (1966) (refusing to defer because the

D.C. court’s decision was “self-contradictory’);

District of Columbia v. John R. Thompson Co., 346

U.S. 100, 117-18 (1958) (reversing the D.C. court's

decision despite the general policy of deference).!°

0 The United States Court of Appeals for the District of

Columbia Circuit similarly defers to D.C. courts on matters of

exclusively local concern, but the D.C. Circuit, hike this Court,

has deviated at times from that general practice. See, e.g.,

United States v. Edmond, 924 F.2d 261, 264, 268 (D.C. Cir.

1991) (recognizing that deference to D.C. courts is usually

appropriate, but concluding that “whatever deference we gave,

we would still be constrained to set aside the court’s

judgment”); Tutt v. Doby, 459 F.2d 1195, 1200-01 (D.C. Cir.

1972) (recognizing that deference to D.C. courts is usually

appropriate, but finding that the D.C. court’s flawed ruling had

“fundamental import” and thus mandated reversal).

This Court should hkewise refuse to defer here.

First, as explained herein, this case does not present

matters of exclusively local concern; it implicates

important congressional and_ federal interests.

Second, even if this case involved only matters of

exclusively local concern, deference is inappropriate

because the D.C. Court of Appeals committed

egregious error. Third, this Court should not defer

because this is an exceptional case regarding a

fundamentally flawed construction of the Home Rule

Act—Congress’s enabling act for the District—a

statute in which Congress has an enduring concern.

A. Deference is Unwarranted Because this

Case Does Not Present Matters of

Exclusively Local Concern.

This Court’s practice of deferring to the D.C.

courts apples only to “matters of exclusively local

concern.” Whalen, 445 U.S. at 687. But this case

involves more than matters of exclusively local

concern, so deference is not warranted here.

First, the congressional enactments at issue here

further important federal interests, see Section I.B.,

supra, and thus, this case does not involve matters of

exclusively local concern. In Limtiaco v. Camacho,

549 U.S. 483 (2007), for example, this Court

construed a debt-limitation provision of Guam’s

Organic Act, which, like the Home Rule Act at issue

here, 1s a congressional enactment governing that

United States territory. This Court overruled the

Guam Supreme Court’s interpretation of that Act of

Congress. Jd. at 492. Resisting that outcome, the

respondent argued that this Court should “defer[] to

the Guam Supreme Court’s interpretation of the

Organic Act” because the case involved “matters of

purely local concern.” Jd. at 491. But the Limtiaco

Court rejected that argument, reasoning that “[t]he

debt-limitation provision protects both Guamanians

and the United States from the potential

consequences of territorial insolvency,” and thus

concluded that the “case [was] not a matter of purely

local concern.” Jd. at 491-92.

Similarly, the congressional measures at issue

here—the Home Rule Act and the concurrent

resolution approving Charter Amendment No. 1

further both local and federal interests: (1) the local

interest of “grant[ing] to the inhabitants of the

District of Columbia powers of local _self-

government’; and (2) the federal interest of

“reliev[ing] Congress of the burden of legislating

upon essentially local District matters.” See D.C.

Code § 1-201.02(a). Thus, this case is not a matter of

exclusively local concern, and just as in Limtiaco,

this Court should not defer.

Second, the precise legal task at issue here

statutory construction of congressional enactments

does not fall under the rubric of local law. Jn re

Sawyer, 360 U.S. 622 (1959), involved this Court’s

reversal of an attorney-disciplinary ruling from the

Supreme Court of Hawai'i which, at that time, was a

territorial court. Though the “regulation of lawyers

has been left exclusively to the States” and

territories, see Leis v. Flynt, 489 U.S. 438, 442

(1979), the Sawyer Court reasoned that it need not

defer because the particular legal task required

there—ascertaining the “|]sufficiency of . . . evidence

26

to sustain a_ serious charge of professional

misconduct’—“is not one which can be subsumed

under the headings of local practice, customs, or

law,” see Sawyer, 360 U.S. at 640. Likewise, this

Court should find that the precise legal task at issue

here—statutory construction of congressional

enactments—does not constitute a question of local

law and, thus, does not warrant deference

B. Deference is Unwarranted Because

Kgregious Error Has Been Committed.

The patently flawed decision of the D.C. Court of

Appeals places this case within the well-established

“egregious error’ exception, which provides that

deference is inappropriate when “egregious” or

“obvious” error has been committed. Pernell v

Southall Realty, 416 U.S. 363, 369 (1974); accord

Whalen, 445 U.S. at 696-97 (Blackmun, J.,

concurring) (refusing to defer because “egregious

error ha[d] been committed”); Fisher v. United

States, 328 U.S. 463, 476 (1946) (noting that this

Court does not defer “where egregious error has been

committed”); see also Kent, 383 U.S. at 557 n.27

(refusing to defer where the D.C. court’s decision was

“self-contradictory’).

The D.C. Court of Appeals’ dissenting opinion

cogently explains the egregious errors in the

majority’s decision. We briefly highlight the worst of

the lot.

First, the D.C. Court of Appeals supplanted the

clear intent of Congress and the people for the

exclusive intent of the Council, declaring that “the

Council's intent . . . is paramount.” See App. 23a,

9la-92a. But it is paradoxical to look only to the

Council to construe the scope of the _ people’s

initiative right—a right that is_ naturally

antagonistic to the Council and its authority to

legislate.}! The Council, after all, is innately

inclined to minimize direct democracy, and thus

focusing on its intent when interpreting the

initiative power is flawed as a matter of common

sense, essentially looking to the fox to determine

how to guard the hen house. Cf. CLEAN uv, State,

928 P.2d 1054, 1076 (Wash. 1996).

Such an exclusive focus on the Councul’s intent is

wrong as a matter of law. As the D.C. Court of

Appeals has-7~ elsewhere’ recognized, “[s]ince

amendments to the Charter required [c]ongressional

approval when the initiative right was approved by

Congress, the court must consider [clongressional!

intent in approving the amendment.” Hessey v. D.C

Bd. of Elections & Ethics, 601 A.2d 3, 7 (D.C. 1991)

(citation omitted).

' The initiative is “designed to provide direct and

continual accountability of public officials to the electorate.”

The Charter Amendments “are direct descendants from the

Progressive Movement .... Each measure in its own way

strengthened the direct accountability of elected officials to the

people who elected them, by subjecting . their legislative

action (or lack of action) to account through the referendum

and initiative.” Home Rule Act Amendments: Hearings and

Markups on H. Con. Res. 436 & 438—lInitiative and

Referendum, Before the Subcomm. on Fiscal and Government

Affairs of the Comm. on D.C., 95th Cong. at 157, 160 (1978)

(App. A).

Congresss intent is' indeed telling here

Congress viewed the initiative right as propelled by

and the product of the people, not the Council. In

that regard, Congress specifically stated

The overwhelming margin (more than 4 to 1)

with which the amendment was approved in

the November election represented a ground

swell of support for strengthening home rulk

through more direct voter participation in local

governmental matters. In 1973, when

Congress was considering and debating home

rule, the possibility of including initiative and

referendum was discussed and they were

included in the House-passed bill. |But] these

petition rights were dropped in conference and

left to the voters in the District to decide for

themselves under home rule. Neighborhood

and community groups, business associations

and labor unions, political parties and local

media all supported the amendment through

approval by the District Council, then the

Mayor, and finally, the voters in 1977

S. Rep. No. 95-673, at 2 (1978) (emphasis added)

Congress thus exhibited a_ vastly different

understanding of the initiative right from that

adopted by the D.C. Court of Appeals

Second, the D.C. Court of Appeals converted

Section 8 of Charter Amendment No. 1—which is

intended to authorize the Council to enact only

procedural implementing legislation, see Convention

Ctr. Comm., 399 A.2d at 553—into a grant of broad

authority permitting the Council to shrink or alter

the people's initiative right App. 27a-35a

Third, the D.C. Court of Appr als declared that

section 752 of the Home Rule Act afforded the

Council seemingly unlimited “authority to enact

laws giving direction to the Board in the handling of

election matters.” App. 53a. ‘That ill-defined and

unconstrained power, the court reasoned, could be

used by the Council to minimize the people

initiative power and thereby alter the

congressionally orchestrated balance of legislative

power in the District

Fourth, even though the plain language of th

Home Rule Act, as amended, imposes only one

substantive restriction on the people's initiative

power (by prohibiting “laws appropriating funds’)

see D.C. Code § 1-204.101(a), the D.C. Court

Appeals upheld the Council-created substantive (and

remarkably elastic) limitation—the HRA

restriction—on the people’s power. This method of

statutory construction—searching beyond the

unequivocal text and finding a non-enumerated

restriction—is simuar to an interpretive approach

recently rejected by this Court See District of

Columbia v. Heller, 554 U.S , 128 S. Ct. 2783

2818-19 (2008) (“The District argues that we should

interpret ... the statute to contain an exception for

self-defense. But we think that is precluded by the

unequivocal text, and by the presence of certain

other enumerated exceptions.’) (citation omitted)

Deference is Unwarranted Because the

Home Rule Act as Amended Is a

Congressional Organic Act That

Demands Review by this Court.

This Court does not defer in “exceptional cases,”

see Griffin v. United States, 336 U.S. 704, 717 (1949)

such as when a D.C. court misconstrues_ the

congressional organic act for the District. Cf. John

R. Thompson Co., 346 U.S. at 117-18 (construing

prior congressionally enacted organic acts for the

District and reversing the D.C. court’s decision

despite the general policy of deference). This is one

such exceptional case because it involves a

fundamentally flawed construction of the Home Rule

Act—Congress’s most recent organic act for the

District—a statute in which Congress has an

enduring interest.

An organic act (also known as an enabling act) is

a law, like the Home Rule Act and its amendments,

“that establishes . .. [a] local government.” BLACK’S

LAW DICTIONARY 1449 (8th ed. 2004). In light of the

enduring federal interests at stake whenever

Congress creates a local government, this Court

regularly grants review in cases involving judicial

construction of Congress’s organic and enabling acts.

See, e.g., Limtiaco, 549 U.S. at 491-92 (reversing the

Guam Supreme Court’s interpretation of the Guam

Organic Act); Lassen v. Arizona, 385 U.S. 458, 460-

61, 469-70 (1967) (granting review “because of the

importance of the issues presented” and reversing

the Arizona Supreme Court’s interpretation of the

New Mexico-Arizona Enabling Act).

3]

Indeed, this “Court’s concern for the integrity of

the conditions imposed by |[Congress’s organic acts]

has long been evident.” ASARCO Inc. v. Kadish,

490 U.S. 605, 633 (1989) (quoting Alamo Land &

Cattle Co. v. Arizona, 424 U.S. 295, 302 (1976)).

Here, the D.C. Court of Appeals compromised the

integrity of the most fundamental condition in the

District’s most recent organic act (the Home Rule

Act)—that the Council may not enact legislation

conflicting with the congressionally approved Home

Rule Act. See D.C. Code § 1-203.02; td. at § 1-

207.6 1(a). The court flaunted that bedrock

requirement by affirming the Councils HRA

restriction, an evolving and substantive reduction of

the people’s initiative right, even though that

restriction is patently inconsistent with the broad

initiative power contained in the amended Home

Rule Act. This judicial compromise of the most

fundamental condition in the congressionally

approved Home Rule Act demands review by this

Court.

Finally, this Court has often granted review

where local legislative bodies have disregarded

limitations imposed by congressional enabling or

organic acts. See, e.g., Granville-Smith v. Granville

Smith, 349 U.S. 1, 4 (1955) (granting certiorari to

review whether a Virgin Islands law altering the

territory's divorce laws conflicted with its organic

act, reasoning that certiorari was necessary because

of “the obvious importance of the issue” and the law’s

potential for “far-reaching consequences on domestic

relations throughout the United States,” and

invalidating the Virgin Islands’ divorce law as

unauthorized under the organic act); Puerto Rico v.

Russell & Co., 315 U.S. 610, 614 (1942) (granting

certiorari on the “important question” of whether

Puerto Rico law violates the governing organic act,

and invalidating the Puerto Rico law because it

conflicted with the organic act); Springer, 277 U.S. at

198-200 (granting certiorari to consider whether

Philippine laws conflicted with the organic act’s

separation of governmental powers, and invalidating

the Philippine laws because they conflicted with the

organic act). This Court should hkewise grant

review here and declare that the Council’s HRA

restriction violates the amended Home Rule Act

approved by Congress.

D. Extending Deference on a Local Matter

Does Not Require That this Court Deny

Review.

Even if the Court disagrees with the foregoing

reasons why deference to the D.C. Court of Appeals

is not warranted here, this Court’s practice of

deferring to local courts is not a definitive basis to

deny review. Instead, that deference is a factor for

this Court to consider when assessing the merits as

part of a full review of the important issues raised in

this case.

This Court has said the following about

affording deference to local courts:

(That deference] is not a mere mechanical

device which requires or admits . . . of the

summary disposition of appeals .... Nor

does it minimize the importance or dignity

of the appellate function in such cases. On

the contrary, we think that it imposes .. . on

this Court the peculiarly delicate task of

examining and appraising the local law in

its setting .... It is one which ordinarily

cannot be performed summarily or without

full argument and examination of the legal

questions involved.

De Castro v. Bd. of Comm’s of San Juan, 322 U.S.

451, 458 (1944). Hence, even if deference were

appropriate here (which it is not), this Court should

not summarily deny review, but instead, should

grant certiorari and consider that deference when

carefully reviewing the important legal questions

involved in this case.

CONCLUSION

For the foregoing reasons, Proponents

respectfully request that this Court grant review.

Respectfully submitted,

GARY S. MCCALEB DAVID AUSTIN R. NIMOCKS

BRIAN W. RAUM Counsel of Record

JAMES A. CAMPBELL JULIE MARIE BLAKE

ALLIANCE DEFENSE FUND ALLIANCE DEFENSE FUND

15100 N. 90th Street 801 G Street, N.W.

Scottsdale, AZ 85260 Suite 509

(480) 444-0020 Washington, D.C. 20001

(202) 393-8690

CLETA MITCHELL animocks@telladf.org

FOLEY & Lé XDNER, LLP

3000 K Street, N.W. #600

Washington, D.C. 20007

(202) 295-4081

October 12. 2010