Appendix — Jackson v. District of Columbia Board of Elections & Ethics

APPENDIX

District of Columbia Court of Appeals

PERMIT UIE BEN, SPER ev cevesencenancnsonnaneactnseveacacvess

Superior Court of the District of Columbia

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

District of Columbia Board of Elections and

{thics Opinion and Order (November 17,

I os ec can erdusavassusdicceudecaavedhectheviensieveiestinknaxasaenn

Petition for Review of Agency Decision and

for Writ in the Nature of Mandamus

(November 18, 2009) ...........ccccccccececececcececececeecess

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 10-CV-20

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

DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND

ETHICS, APPELLEE,

AND

DISTRICT OF COLUMBIA, INTERVENOR-APPELLEE

Appeal from the Superior Court of the District of

Columbia (CAB-8613-09)

(Hon. Judith N. Macaluso, Trial Judge)

(Argued en banc May 4, 2010 Decided July 15, 2010)

Austin FR. Nimocks, with whom Timothy J

Tracey and Cleta Mitchell were on the brief, for

appellants.

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, Richard Anthony Lopez

and Jonathan Herczeg filed an amicus curiae brief

for Trevor S. Blake, Il, 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 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 WASHINTON, Chief Judge, and RUIZ, REID,

GLICKMAN, KRAMER, FISHER, BLACKBURNE-RIGSBY,

THOMPSON and OBERLY, Associate Judges.

Opinion for the court by Associate Judge

THOMPSON, joined by RUIZ, REID, KRAMER and

BLACKBURNE-RIGSBY, Associate Judges.

Dissenting opinion by Associate Judge FISHER,

joined by WASHINGTON, Chief Judge, and GLICKMAN

and OBERLY, Associate Judges, at page 53.

THOMPSON, Associate Judge: The specific issue

before us in this appeal is whether the District of

Columbia Board of Elections and Ethics (the

3a

“Board”) acted lawfully when it rejected appellants’

proposed initiative measure on the ground that the

measure would authorize, or have the effect of

authorizing, discrimination’ prohibited by the

Human Rights Act, and therefore was not a proper

subject of initiative. As will be seen, however, the

underlying issues are much broader and more

fundamental. They concern (1) the allocation of the

power to enact laws governing the Dzistrict of

Columbia, within the framework of the District of

Columbia Home Rule Act; (2) the broad legislative

authority that Congress conferred on the Council of

the District of Columbia (“the Council” or “the Home

Rule Council’), subject to specific enumerated

limitations; (3) the deference this court owes to the

Council with respect to the meaning of the law that

the Council passed to enable the people of the

District of Columbia to share in the Council’s

legislative power through an amendment to the

Home Rule Charter, (and, in particular, the

deference we owe to the Council’s interpretation of

the Charter amendments, as reflected in the nearly

contemporaneous implementing legislation that the

Council passed); (4) the right of the people of the

District to legislate through the initiative process, a

right that Congress affirmatively approved when it

voted to accept the Charter amendment; and (5) the

unique importance of the Human Rights Act, the

District’s comprehensive anti-discrimination law,

which the people of the District of Columbia,

speaking through their elected representatives, have

long intended to have the “highest priority.” Thus,

once again, we are called upon “to interpret a unique

and complex governmental structure” that is the

District of Columbia under Home Rule. Convention

Ctr. Referendum Comm. v. District of Columbia Bd.

of Elections & Ethics, 441 A.2d 889, 916 (D.C. 1981)

(en banc) (“Convention Ctr. IIT’).

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 last of these points, our court

is unanimous

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

D.C. Code § 46-405.01 (2009 Supp.).! JAMA became

law on July 7, 2009, after Congress did not

disapprove it

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

The statute states: “A marriage legally entered into

another jurisdiction between 2 persons of the same sex that i:

recognized as valid in that jurisdiction, that is not expressly

prohibited by §§ 46-401.01 through 46-404, and has not been

deemed illegal under § 46-405, shall be recognized a

marriage in the District.” Jd

ubject of this appeal Through = the DI

vs}

initiative, appellants sought to undo JAMA

amending Title 46, Subtitle I, Chapter 4 of the

Code to state: “Only marriage between a man a!

woman is valid or recognized in the District of

Columbia.” After a public hearing on October 26

2009, the Board rejected the proposed initiative

finding that it would “authorize[], o1 have the

effect of authorizing, discrimination” prohibited

under the Human Rights Act and therefore was “not

a proper subject of initiative.” D.C. Code § 1

(b)(1)(C) (2006).- Appellant ought

| po! receipt

referendum measure, the Board shall refu

the measure if the Board finds that it

ubject of initiative or referendum

applicable, under the terms of title I\

of Columbia Home Rule Act

following ground

() The measure authori

authorizing, adiscrimtina

14 of Title 2

ict of the Couns

to § 1-204.46

mandamus, asking the Superior Court to order the

Board to take the necessary steps to certify the

initiative to allow it to be placed on the ballot

Appellants also moved for summary judgment. The

District of Columbia intervened in support of the

Board and moved to dismiss the complaint or, in the

alternative, for summary judgment

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). Thi

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 Dzistrict of

Columbia with another person, regardless of gender

unless the marriage is expressly prohibited by

District law. D.C. Code § 46-401 (a) (Supp. 2010); 57

D.C. Reg. 27 (Wan. 1, 2010). Thus, the Marriage

Equality Act makes civil marriage available to same

sex couples, just as it does to opposite-sex couples. It

also provides that judges of record, the Clerk of the

Superior Court of the District of Columbia or such

deputy clerks as the Clerk may designate, and

“every minister of any religious society approved 01

ordained according to the ceremonies of his religiou

society’ may celebrate marriages in the District. /d

§ 46-406(b). However, it does not require a minister

Id. (italics added). The italicized language ection 1-001. 1¢

(b)(1)(C), sets forth what we refer to as the Human Right \

afeguard

of any religion to celebrate any marriage. Rather,

the Council expressed in the preamble to D.C. Act

18-248 its intent to “ensure that no minister of any

religious society ... shall be required to solemnize or

celebrate any marriage.” 57 D.C. Reg. 27.5) The

Mayor signed the Marriage Equality Act, it was

To that end, the Marriage Equality Act explicitly

provides that

(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, ov 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 socicty or nonprofit

organization that 1s operated, supervised, or

controlled by or in conjunction with a religious society

D.C. Code § 46-406 (c)}e) (Supp. 2010)

Qa

transmitted to Congress on January 5, 2010, see 57

D.C. Reg. 18 and it became law on March 3, 2010.4

Id.

By the effective date of the Marnage Equality

Act, the Superior Court had ruled on the cross-

motions for summary judgment in this lhtigation. 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.

Il. 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

4 The Superior Court, this court, and Chief Justice

Roberts, sitting as Circuit Justice, declined to stay the effective

date of the Marriage Equality Act. See Jackson v. District of

Columbia Bd. of Elections & Ethics, 130 S. Ct. 1279, 1280

(2010) (Roberts, C.J., in chambers)

The Constitution vests Congress with the

authority “[t]o exercise exclusive Legislation” over

the District. U.S. Const. art. I, § 8, cl. 17. In 19738,

Congress passed the District of Columbia Self-

Government and Government Reorganization Act,

Pub. L. No. 93-198, 87 Stat. 777, commonly known

as the “Home Rule Act.” Title IV of the Home Rule

Act sets out the District of Columbia Charter, which

establishes the organizational structure of the

District government. D.C. Code §§ 1-204.01—1-

204.115 (2006). The Charter became effective when

ratified by the citizens of the District of Columbia

through a Charter referendum vote. See Home Rule

Act, §§ 701, 704 (codified at D.C. Code §§ 1-207.01, 1-

207.04 (2006)). The Charter created a tripartite form

of government within the District and vested in the

Council the broad legislative power granted to the

District. D.C. Code § 1-204.04; Wilson v. Kelly, 615

A.2d 229, 231-32 (D.C. 1992). Section 302 of Title III

of the Home Rule Act describes that legislative

power in broad terms: “Except as provided in

sections 601, 602, and 603 [of the Home Rule Act,

codified at D.C. Code §§ 1-206.01 to 1-206.03], 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 hmitations imposed upon the states

by the 10th section of the 1st article of the

Constitution of the United States.” D.C. Code § 1-

203.02 (2006).°

Sections 601 to 603 expressly restrict the Council's power

to legislate in several specific areas. See D.C. Code §§ 1-203.02,

1-206.02 (a), 1-206.03 (c) (2006). The Council has “no authority

lla

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

D.C. Code § 1-204.12 (a). In general, if the Mayor

does not veto an act of the Council within ten days

(or if the Council overrides a veto by a two-thirds

vote), Council-passed legislation becomes effective

after a thirty-legislative-day layover in Congress,

unless disapproved by concurrent resolution. D.C.

Code § 1-206.02 (c)(1) (2006).

to pass any act contrary to the provisions of [the Home Rule

Act],” except as specifically provided in the Act. Jd. § 1-206.02

(a). The Council may not approve a budget in excess of

estimated revenues. Id. § 1-206.03 (c). In addition, the Council

may not “(1) Impose any tax on property of the United States or

any of the several states; (2) Lend the public credit for support

of any private undertaking; (3) Enact any act, or enact any act

to amend or repeal any Act of Congress, which concerns the

functions or property of the United States or which is not

restricted in its application exclusively in or to the District; (4)

Enact any act, resolution, or rule with respect to any provision

of Title 11 (relating to organization and jurisdiction of the

District of Columbia courts); (5) Impose any tax on the whole or

any portion of the personal income, either directly or at the

source thereof, of any individual not a resident of the District . .

. ; (6) Enact any act, resolution, or rule which permits the

building of any structure within the District of Columbia in

excess of the height limitations [established by Congress]; (7)

Enact any act, resolution, or regulation with respect to the

Commission on Mental Health; [for] (8) Enact any act or

regulation relating to the United States District Court for the

District of Columbia or any other court of the United States in

the District other than the District courts, or relating to the

duties or powers of the United States Attorney or the United

States Marshal for the District of Columbia.” D.C. Code § 1-

206.02 (a)(1)—(8).

l2a

Part E of Title VII of the Home Rule Act set

forth amendments to the District of Columbia

Election Act, D.C. Code §§ 1-1101—1-1115 (19783),

and also contained a provision, section 752, entitled

“District Council Authority Over Elections.”

Section 771 (e) of the Home Rule Act provided that

“Part E of Title VII shall take effect on the date on

which title [TV is accepted by a majority of the

registered qualified electors in the District voting on

the charter issue in the charter referendum.” Thus,

section 752 (codified as D.C. Code § 1-207.52 (2006)),

became effective upon ratification of the Charter.

Section 752 provides that “[nJotwithstanding any

other provision of this Act or of any other law, the

Council shall have authority to enact any act or

resolution with respect to matters involving or

relating to elections in the District.” /d.

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 Coiumbia on S. 1603 and S. 1626, 92d Cong.

161 (1971) (hereinafter, “Hearing on S. 1603 and 8S.

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.’ D.C.

l3a

Code § 1-203.03(a) (2006). On May 17, 1977, the

Council exercised its authority under section 303 to

pass the Initiative, Referendum, and Recall Charter

Amendment Act of 1977 (the “CAA”). 24 D.C. Reg.

199 (July 8, 1977); see also 25 D.C. Reg. 244 (July 14,

1978). The Council amended the CAA on November

1, 1977, making technical changes to the legislation

before it was presented to the voters. H.R. Rep. No.

95-891, at 24 (1978). The District’s electorate

ratified the CAA on November 7, 1977, each House

of Congress affirmatively approved it, and the CAA

(and, thus, an amended Charter providing for the

right of initiative) became effective on March 10,

1978. Hessey v. District of Columbia Bd. of Elections

& Ethics, 601 A.2d 3, 12 (D.C. 1991) (en banc);

Convention Ctr. Referendum Comm. v. District of

Columbia Bd. of Elections & Ethics, 399 A.2d 550,

551 (D.C. 1979) (“Convention Ctr. T’); 25 D.C. Reg.

244 (July 14, 1978).

The CAA, codified at D.C. Code §§ 1-204.101-1-

204.115, provides in its definitional section that

“[t]he term ‘initiative’ means the process by which

the electors of the District of Columbia may propose

6 Section 303 specifically provides, however, that the

portions of Title IV relating to establishment of the Council, the

Office of the Mayor, and the judicial system as the tripartite

form of government are not subject to amendment (except by

Congress).

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.).

l4a

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.” Jd. § 1-204.101 (a).’ The

CAA provided a “very broad” right for the District’s

electorate to utilize the initiative and referendum

process.8 Hessey, 601 A.2d at 12. However, the

initiative and referendum provisions were not self-

executing and did not include particulars about how

the initiative or referendum process would be

implemented. Convention Ctr. I, 399 A.2d at 552-53.

Instead, the CAA affirmatively required the Council

to “adopt such acts as are necessary to carry out the

purpose of {the Act] within 180 days of the effective

date of [the Act].” D.C. Code § 1-204.107.

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”).

7 Section 1-204.101 (b) states that “[t]he term ‘referendum’

means the process by which the registered qualified electors of

the District of Columbia may suspend acts of the Council of the

District of Columbia (except emergency acts, acts levying taxes,

or acts appropriating funds for the general operation budget)

until such acts have been presented to the registered qualified

electors of the District of Columbia for their approval or

rejection.” Jd.

8 For example, in September 1982, citizens adopted an

initiative providing for “severe mandatory minimum sentences

for, among others, persons who committed offenses while

armed with a pistol or firearm.” Lemon v. United States, 564

A.2d 1368, 1379 (D.C. 1989).

Lda

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. Bull 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

° The pertinent language of the IPA ts set out in note 2

supra

16a

affiliation, physical handicap, source of income, and

place of residence or business.” /d. § 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 pre-Home Rule Council also explained that:

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

“Concerned that [the Title 34] police power

regulations might not have the same force and effect

as a statute, the post-Home Rule Council of the

District of Columbia re-enacted the [Human Rights

Law] regulations as The Human Rights Act of 1977.”

Blodgett v. Univ. Club, 930 A.2d 210, 217 (D.C.

2007). The bill (Bill 2-179) that became the Human

Rights Act was introduced on June 16, 1977, within

a month after the Council passed the original

version of the CAA.!'! D.C. Council, Comm. on Pub.

Servs. and Consumer Affairs, Report on Bill 2-179 at

1 (July 5, 1977) (hereinafter, the “Human Rights Act

Report”). In reporting the bill, the Committee on

Public Services and Consumer Affairs Council

explained that, in doing so, it made “no substantive

they may deem necessary for the protection of lives, hmbs,

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.” Jd. 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.” Jd. at 782

1! Thus, barely a month after the Council passed the

original version of the CAA and before it passed the final

version that went to the voters, the Council took action to

reinforce the District’s far-reaching Human Rights Law. Bill 2

179, which became the Human Rights Act, was sponsored by all

thirteen Council members. See Memorandum from Anglea B

Howard, Committee on Public Services and Consumer Affairs,

to Robert A. Williams at 1 (regarding Substitution of Pages of

Committee Report of Bill 2-179, The Human Rights Act of

1977) (July 7, 1977).

changes,” but acted with “the sole effect [of]

enact[ing] that law as a statute and thus mak[ing| it

a permanent part of the District of Columbia Code.”

Id. The Council intended to “reinforce[] .. . [its] 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 Dhistrict

Government.” Jd. It also sought to “underscore the

Council’s intent that the elimination’ of

discrimination within the District of Columbia

should have the highest priority ...and that the

Human Rights Act should therefore be read in

harmony with and as supplementing other laws of

the District.” Id. at 3. The Council understood that

the District's Human Rights Law was “widely hailed

as the most comprehensive of its kind in the nation”

and sought to put it on “firm legal footing” by re-

enacting it as a statute. Jd. at 2.

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 “le]very

individual shall have an equal opportunity to

participate ...1n all aspects of life, including, but

not limited to” those aspects specifically described.

D.C. Code § 2-1402.01 (2007). This court has noted

that “[t]he Council undoubtedly intended the Human

Rights Act to be 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).

Ill. The Parties’ Contentions

Appellants contend that by refusing to accept

their proposed initiative, the Board denied the

citizens of the District their “guaranteed right under

the District of Columbia Charter to be heard” on the

issue of the definition of marriage.'* In ratifying the

CAA, appellants argue, voters conferred upon

themselves and all citizens of the District a right to

utilize the initiative process with only one

limitation—that the initiative process is_ not

available to propose laws appropriating funds

(something the parties agree the Marriage Initiative

of 2009 does not purport to do). According to

appellants, when voters approved the CAA,

including its provision requiring the Council to

“adopt such acts as are necessary to carry out the

purpose of this subpart within 180 days of the

effective date of this subpart,” D.C. Code § 1-204.107,

they authorized the Council only to provide

“procedural” rules to facilitate the people’s exercise

of the right to initiative (and to do so “within 180

days,” id.). Section 1-204.107 did not, appellants

contend, authorize the Council to “impose additional

substantive limitations on the people’s mght of

initiative.” Thus, appellants say, when the Council

enacted the IPA and added the Human Rights Act

safeguard, the Council exceeded the authority

conferred to it by the CAA. Noting that the Charter

Amendments are “in the nature of constitutional

2 Appellants assert that “voters in thirty-one states have

participated in the initiative and/or referendum process to voice

their opinion on... the definition of marriage,” and urge that

the citizens of the District “are also entitled to voice their views

through their votes on this important issue.”

provisions, Convention Ctr. JI, 441 A.2d at 915

appellants emphasize that the CAA “cannot bi

amended or contravened by ordinary legislation |ot!

the D.C. Council.|” /d. (“As implementing legislation,

the Initiative Procedures Act is valid, of course, only

insofar as it conforms to the underlying Charte:

Amendments’). Appellants urge us to hold that the

Human Rights Act safeguard of the IPA conflict:

with the broad right of initiative created by the CAA

and therefore “cannot be used as a basis for

disapproving the Marriage Initiative of 2009.”!

Appellant ; also a ert that citizens of the istrict ma‘

not be ubje cted to a limit on their ability to propose legislation

that diminishes their power relative to that of the Council

because, in the process of ratifying the CAA, they “malde|

themselves coextensive lawmakers with the D.C. Council.” For

this point, appellants rely heavily on this court's statement in

Atchison v. District of Columbia that the power of initiative 1

‘coextensive with the power of the leyislature to adopt

legislative measures, 585 ,; 50, 155 (D.C. 1991) (quoting

Convention Ctr. lll, 441 A.2d at 897). However, the issue 1)

Atchison and in Convention Ctr. IJ] was whether the initiative

process would permit citizens to propose initiatives that were

administrative or executive in nature rather than legislativ:

We answered that question in the negative by explaining that

just as the Council's legislative powers do not extend to

administrative matters, an initiative cannot extend to

administrative matters.” Convention Ctr. IIT, 441 A.2d at 907

Thus, we held that the voters’ legislative power could be no

broader than the Council’s. /d. at 918. We did not consider or

address the question raised here, 1.e., whether the Coun

intended to and could lawfully, through the Human Rights Act

afeguard, enable citizens to have legislative power that |

more limited than the legislative power that the Council itself

holds through the Home Rule Act. “It is a maxim, not to be

disregarded, that general expressions, in every opinion, are to

be taken in connection with the case in which those expression

ire used. If they go beyond the cass y may be respected but

In contrast. the District contends that the CAA

“gave the Council the authority to determine what

acts were necessary to carry out its purpose, with ni

provision for review of that determination by th)

court or any other body The District argues that

by giving the Councu this authority without defining

the purpose and without including words of

limitation on the types of acts that the Council could

enact to carry out that purpose, the CAA “gave the

Council authority broader than that necessary to

ensure merely that mechanical procedures exist fo.

Initiatives to proceed,” and established no “judicially

manageable standards for determining whether th

Council has properly exercised its discretion.” As a

result, the District asserts, whether the Huma

Rights Act safeguard is necessary to the purpose of

the CAA is a “nonjusticiable political question.” The

District emphasizes that the Council itself passed

the CAA in the same Council session in which it

devised the IPA, suggesting that the Council well

ought not to control the judgment in a sub sequent sult wher!

the very point is presented for decision.” Cent. Va. Cmty. Colles:

Katz, 546 U.S 356 Hs (Z0UE (citation and internal

quotation marks omitted)

Moreover. what we aid 1n Convention Ctr lil y Al

absent express or implied limitation, the power of th

electorate to act by initiative 1s coextensive with t} power Ol!

the legislature to adopt legislative measures.” 44] A.2d at #97

(italics added); see also Brizill v. District of Columbia Bd. of

Elections & Ethics, 911 A.2d 1212, 1214 (D.C. 2006) (Voter

“generally may approve through initiative any law that the

Council may enact through legislation.”) (italics added). Thu

rather than answer the question that is before u this case

the quoted statement begs the question whether there is ar

express or implied limitation on the right to initiat

relevant here

understood the CAA’s purpose as it carried out its

mandate to enact necessary implementing law.

Thus, the District urges, even if this case is

justiciable, under well-established principles of

statutory interpretation, this court should presume

that the Council acted in conformity with that

purpose when it enacted the Human Rights Act

safeguard of the IPA. Therefore, the District

maintains, any review of the Council’s action “should

be highly deferential.” The District also stresses that

section 752 of the Home Ruie Act gave the Council

broad “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.

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.'4 In other

jurisdictions, it is the people who, through state

14 For this reason, we have previously cautioned against

“equating the initiative right here with initiatives under the

simpler governmental structures of the states.” Convention Ctr.

ITT, 441 A.2d at 917.

23a

constitutions, have conferred rights on_ the

legislature, but have reserved general legislative

power to themselves as well.'5 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, including Congress’s power to

disapprove Councu legislation). In passing the CAA,

the Council had to decide the extent of the legislative

power it would share with the people.'® Thus, to

resolve the issue that is before us, the Council’s

intent when it passed the CAA is paramount.!7 Cf.

15 See, e.g., McGee v. Sec’y of State, 896 A.2d 933, 941 (Me.

2006) (“By section 18 the people, as sovereign, have retaken

unto themselves legislative power and that constitutional

provision must be liberally construed to facilitate, rather than

to handicap, the people’s exercise of their sovereign power to

legislate.”) (citation omitted); Gallivan v. Walker, 54 P.3d 1069,

1080 (Utah 2002) (“Article VI, section 1 [of the Utah

constitution] is not merely a grant of the right to directly

legislate, but reserves and guarantees the initiative power to

the people.”) (italics omitted).

16 As this discussion implies, there is no _ federal

constitutional right to initiative. See Molinari v. Bloomberg,

564 F.3d 587, 597 (2d Cir. 2009) (“[T]he right to pass legislation

through a referendum is a state-created right not guaranteed

by the U.S. Constitution.”); Marijuana Policy Project v. United

States, 304 F.3d 82, 87 (D.C. Cir. 2002) (Congress could “repeal

the [District’s] initiative process altogether’).

17 The task before us is therefore fundamentally different

from the task we faced in District of Columbia v. Wash. Home

Ownership Council, Inc., 415 A.2d 1349 (D.C. 1980) (en banc),

where we recognized that, while the “Council’s interpretation of

its own authority [under the Home Rule Act, which was passed

by Congress, not the Council] obviously commands great

respect, .. . [it is not] entitled to weight beyond the inherent

persuasiveness of the position taken in a particular instance.”

Id. at 1351 n.5.

24a

Stevenson v. District of Columbia Bd. of Elections &

Ethics, 683 A.2d 1371, 13876 (D.C. 1996) (reasoning

that ambiguous language in the CAA must be read

in a way that expresses the Council's intent and

rejecting the “premise that the bill as enacted meant

something different from the bill the Council

intended”).

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

(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.” Jd. § 1-204.101 (a). This is the

language on which appellants focus primarily,

arguing that the “except laws appropriating funds”

25a

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 D.C. Code §§ 1-203.02, 1-206.02;

Convention Ctr. IIT, 441 A.2d at 918 (explaining that

voters’ power to legislate by initiative can be no

broader than the Council’s legislative power). Since

section 1-204.101 (a) obviously could not and did not

remove those limits, it cannot be read as expressing

the entire scope of restrictions on the initiative right.

Rather, section 1-204 101—which Congress

recognized as merely “defin[ing| the operative terms”

of the CAA!8—does not purport to address, and is

ambiguous as to, whether there are other

limitations on the right to initiative (and

referendum).'9 The Human Rights Act safeguard i:

not inconsistent with that ambiguous language.?0

18 H.R. Rep. No. 95-891, at 15.

19 Appellants rely on the ballot language that voters saw

and approved as indicative of the “plain” meaning of the CAA.

We reject this argument. Appellants are correct that the ballot

language did not tell voters that the initiative process could be

limited. But neither did the ballot language inform voters

about the appropriations restriction expressly stated in the

26a

CAA, or about the enumerated limitations on legislative

authority set out in Title VI of the Home Rule Act, or about the

restrictions implied by the U.S. Constitution. The ballot read:

r

Che 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.

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.

20 The Superior Court addressed at some length

appellants’ argument that “[t]he expression of only one subject-

matter exclusion, indicates that all other subjects are proper for

initiatives.” Order Granting District of Columbia’s Motion fi

Summary Judgment and Denying Petitioners’ Motion for

Summary Judgment, at 6 (Jan. 14, 2010) (hereinafter,

“Superior Court Order”). As the court recognized, appellants’

argument appears to apply the interpretive canon “expressio

unius est exclusio alterius.” Id. at 10. As both the Supreme

Court and this court have explained, however, that canon ‘is an

aid to construction, not a rule of law.” Howard Univ. Hosp. v,

District of Columbia Dep’t of Emp’t Serus., 952 A.2d 168, 175

(D.C. 2008) (quoting Neuberger v. Comm’r of Internal Revenue,

311 U.S. 83, 88 (1940) (internal quotation marks omitted)).

More to the point, as the Superior Court explained in its ruling,

the canon “depends on identifying a series of two or more terms

or things that should be understood to go hand in hand, which

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

fis] abridged in circumstances supporting a sensible inference

that the term left out must have been meant to be excluded.”

Superior Court Order at 11 (quoting Chevron U.S.A., Inc. v.

Echazabal, 536 U.S. 73, 81 (2002)). Here, the canon does not

support appellants’ argument. Section 1-204.101 sets out, via

the expressed exceptions to the definitions of “initiative” and

“referendum,” a list of sudject areas that the Council meant to

render off-limits to direct democracy: appropriations,

emergency acts, tax levies, the District’s budget. No inference

can sensibly be drawn that by listing these subject areas and

no others, the Council intended that the initiative and

referendum process would be otherwise unfettered, i.e. subject

to no non-subject-matter safeguards and restrictions. Cf.

Convention Ctr. I, 399 A.2d at 553 & n.8 (recognizing that,

without implementing legislation, the CAA did not “provide

sufficient safeguards” against abuse, and relying in part on the

Board’s statement that “safeguards that modern voters have

come to view as essential” were absent from the CAA).

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, 16-19 (May 17, 1977); First Reading of Bill 2-2,

“The Initiative, Referendum, and Recall Charter Amendments

of 1977,” at 37 (May 3, 1977).

28a

the Council to “adopt such acts as are necessary to

carry out the purpose of this subpart within 180

days.”2! 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 Bul 2-2 at Attachment A 4 (March 16, 1977

(hereinafter, “CAA Report”). The CAA “necessary to

21 Kmphasizing this language, appellanis cite to cases from

other jurisdictions in which courts, construing language

directing the legislature to enact legislation to implement

initiative or referendum provisions, have ruled that the

legislature could impose only procedural rules, not additional

substantive restrictions. We do not find these cases helpful,

because none of them involved the broad “necessary to carry

out the purpose” language used in the CAA. Further, the cases

generally involve state constitutional provisions that (unlike

the CAA) are self-executing, such that all that is left to the

legislature is to specify the form of the referendum or initiative

petition, see, e.g., Loonan v. Woodley, 882 P.2d 1380, 1386

(Colo. 1994) (applying Colo. Const. art. V. § 1(10)); and, in

many jurisdictions, involve provisions that specifically direct

the legislature to enact laws to “facilitate . . . operation” of the

initiative process and/or specifically provide that “no legislation

shall be enacted to restrict the right of initiative.” See, e.g.,

Cobb v. Burress, 209 S.W.2d 694, 697 (Ark. 1948) (explaining

that because the state constitution provides that “laws may be

enacted to facilitate” the right of referendum and further

provides that “{n]o legislation shall be enacted to restrict,

hamper or impair the exercise of the rights herein reserved to

the people,” the General Assembly’s attempt to limit the time

within which a referendum petition might be filed was beyond

the power of the legislature and therefore was void).

2Ya

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) to “prescribe such

regulations as may be necessary or appropriate (1)

with respect to the form, filing, examination,

amendment, and certification of initiative petitions,

and (2) with respect to the conduct of any election

during which any such petition is considered.”

Hearing on 8S. 1603 and S. 1626, 92d Cong. 163.

Similarly, the CAA language contrasts with the

language used in section 303 (c) of the Home Rule

Act, which also afforded the Council a model it might

have used to declare its authority to enact merely

procedural rules governing the initiative and

referendum process. See D.C. Code § 1-203.03 (c)

(2006) (“The Board of Elections and Ethics shall

prescribe such rules as are necessary with respect to

the distribution and signing of petitions and the

holding of elections for ratifying amendments to

subchapter IV of this chapter according to the

procedures specified in subsection (a) of this

section’). By comparison to all of those formulations,

the “necessary to carry out the purpose” language

that the Council used in section 1-204.107 appears to

be purposefully undefined.22 Notably, in other

contexts, virtually identical language has been used

Indeed, from the language of section 1-204.107, it

appears that, rather than resolve the issue of whether to

express in the CAA any additional restrictions on the right to

initiative and referendum, the Council decided to “evade that

point and establish a legislative construction of the |Charter

amendment].” Myers v. United States, 272 U.S. 52, 113 (1926)

30a

to authorize the adoption not only of procedural

rules, but also of substantive requirements. See, e.g.,

District of Columbia Ins. Placement Facility v.

Washington, 269 A.2d 45, 48—49 (D.C. 1970) (noting

that statute that directed the Superintendent of

insurance to promulgate such regulations as “he

shall deem necessary to carry out the purposes” of

the statute authorized the Superintendent to direct

that insurance placement facilities ‘ssue crime

insurance).2? The fact that section 1-204.107 placed

no express limit mandating that the CAA-

implementing legislation must be procedural only

may be taken as “a convincing indication that none

li.e., no such limit] was intended.” Myers, 272 U.S.

at 128.24 At the very least, section 1-204.107 is

23 ‘The “necessary to carry out the purpose” language of

section 1-204.107 also is strikingly similar to the “Necessary

and Proper” clause of Article I, section 8, cl. 18 of thi

Constitution, which the Supreme Court has construed as

broadening the power of Congress. See, e.g., United States v.

Comstock, 130 S. Ct. 1949, 1956-59 (2010) (explaining that the

“Necessary and Proper’ clause grants Congress power to “make

all Laws which shall be necessary and proper for carrying into

Execution” the enumerated powers vested in Congress, “grants

Congress broad authority to enact federal legislation” that goes

beyond what is described specifically in the list of enumerated

powers); McCulloch v. Maryland, 17 U.S. 316, 420 (1819)

(concluding that if the “Necessary and Proper” clause “does not

enlarge, it cannot be construed to restrain the powers of

|Cjongress, or to impair the right of the legislature to exercise

its best judgment in the selection of measures to carry into

execution the constitutional powers of the government’).

24 Additionally, the fact that in the CAA the Council

reserved to itself the task of adopting implementing rules,

rather than assign that responsibility to. the Board, suggests

that the Council contemplated that deciding on the rules

“necessary to carry out the purpose” of the CAA could entail a

balancing of policy considerations that was more suited to

ambiguous as to whether it authorized the Council to

adopt additional restrictions or limitations on use of

the initiative process. 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

legislative resolution than to administrative decision-making

In commenting on the bill that became the CAA, the Board

sought “a general grant of rulemaking authority to carry out the

processes if approved by the voters.” CAA Report, at 3; H.R.

Rep. No. 95-890, at 9 (italics added); H.R. Rep. No. 95-891, at 8

(italics added). By contrast, as enacted by the Council, the CAA

directs the Council to adopt such acts as are necessary “to carry

out the purpose” of the CAA. The difference in language is

striking. See also D.C. Code § 1-1021.02 (2006) (IPA provision

that directed the Board to “issue rules and regulations to effect

the provisions of’ the IPA) (italics added).

25 Qur dissenting colleagues refer to the preamble to the

CAA as printed in the D.C. Statutes-at-Large (“To amend the

Charter of the District of Columbia to provide for the power of

CAA Report refers to the initiative, referendum, and

recall processes as “legacies of the Progressive Era in

American politics” that are designed “to provide

direct and continual accountability of public official

to the electorate.” CAA Report, at 2; see also H.R

Rep. No. 95-890, at 8 (containing the same

explanation).2° If this is the broad purpose of the

CAA, the Council could reasonably have thought, fo:

example, that it was necessary to that purpose—i.e

the purpose of helping to ensure that the Council

initiative, referendum, and recall,” 1978 D.C. Stat. 33) and

argue that this resolves “any mystery about the purpose of th

CAA.” They do not discuss the preamble to the Human Right

Act as printed in the D.C. Statutes-at-Large: “To enact

Regulation 73-22, A Regulation Governing Human Rights

D.C. Law 2-38, 1977 D.C. Stat i161. The discussion supra

documents that the Council had a much more expansiv

purpose in mind in enacting the Human Rights Act, including

to “underscore the Council’s intent that the elimination of

discrimination within the District of Columbia should have th

highest priority ... and that the Human Rights Act should

therefore be read in harmony with and as supplementing othe:

laws of the District.” Human Rights Act Report, at 3. Just a

the brief preamble to the Human Rights Act does not discloss

this broader purpose, there is no reason to treat the briet

preamble to the CAA as disclosing the Council's full purpose

26 That this was a purpose that the Council likely had in

mind when it passed the CAA also | uggested by th

legislative history of the Home Rule Act, in which there wer

discussions of the initiative, referendum and recall processes a

means of assuring that elected officials remained responsiv:

the electorate. See, e.g., Hearings before the Subcommittee o1

Government Operations of the Committee on the District of

Columbia, 93d Cong. 11 (1978) (statement explaining that

there was probably no need for these powe) ince Council

members would be made “additionally re ponsive by then

then-proposed two-year terms and since there would continu

to be “Federal Government oversight” and “the continu

restraining effect of the federal presence”)

was accountable to the ntire electorate—for ths

Council to disallow » of the initiative oO!

referendum process t act legislation that woul

have the effect of discriminating against sectors

the electorate who might need protection from thi

“major form: of discrimination current!

encountered citizens. Human Right:

Report, : cribing the target of the Hun

Right

Indeed uc! ‘ n ppt !

Council's reference, in the LPA Report

concurrence in Reitman v. Mulkey, 387 U.S. 369 (1

Lommiuttes on Government Operation quoted

Dougla tatement (which itself quoted the writing

Madison) about the need to Lect inoritie iron

which the Government is thi nstrument of tl

number of the Constituent l ‘87 (Doug

oncurring) (citation an nternal quot O mark

IPA Report, at 11 id, during the Council debat

first reading « IPA, Councilmember Wil

xpre ed con mn al nov an government

decisions that mt : fa whol

iccuse|d

Reading

iSOnaD|Ly

{the IPA '

tne point

petween

ifewuara

DrovVvi

CAA

Night

hu

7

avpret I

le} not to econa-gue ouncil’ judgement

uffhoientiv strong

e of the CAA and the

ind Lo decide whethe T the re

onnection between the purpos

Human Rights Act safewuard. Th

the xtent 0 which

aepret (>i

afeguard s|

} end the closene

conduce|s

relation hip between the mean adopt d and the end

to be attained, [were] matters for [the legislature’

determination alons Comstock, 130 8. Ct

be “necessary to carry out the purpose

CAA, it was not required that the Human Right

absolutely necessar' )

proce Se » be launs hed

ifemuard be enabk

nitiative and referenda

l'o conclude that the Human Righ afeguardad

ith the CAA, } nough that we

incons) W

tha on the Hun

Rights Act safeyuard l not manifestiv contra) ti

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 1:

enacting the Human Rights Act saferuard \nd

quite the contrary, other factors persuade us tha

the Council acted in a manner consistent with it

intent when it passed the CAA

2. The Council’s Interpretation of the

CAA, Which is Reflected in the IPA

Human Rights Act Safeguard, Is

Entitled to Substantial Deference.

Although the language of the CAA do not tell

us whether the Council intended that the CAA

implementing legislation could set out additio1

limitations on the right to initiative, what the

Council did in) enacting the IPA provid an

authoritative interpretation of the intent and

meaning of the CAA. This follows from the principl

that “a contemporaneous legislative exposition of th

Constitution @: by analogy thi Charter!

Amendments] when thi frame! were

ictively participating in public affan icquiesced i

for a long term of years, fixes the construction to bi

piven |the Constitution's} provisions. Aldred

Ashcroft, 537 U.S. 186, 213 (2003) (quoting Myer

72 U.S. at 175): see also Printz (/nited Stat 2

US SO 905 (1997) (Cl|Elarly congressional

enactments provide contemporaneous and weight

evidence of the Constitutions meanineg!.!”) (citatio!

ind internal quotation mark mitted). The principl

36a

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 District that these facts—i.e., the

passage of the IPA by Council members who also

were the “framers” of the Charter Amendments, and

the near-contemporaneity of their work on first the

CAA and then the IPA—dictate that we accord

substantial deference to the Council’s “legislative

construction’®° of the CAA as expressed in the IPA,

which was intended to implement the CAA.?!

29 ‘Ten of the thirteen Council members who voted in favor

of the CAA were still on the Council when the IPA was passed

in March 1979, and all ten voted in favor of enactment; an

eleventh, Marion Barry, was still on the Council when the bill

that became the IPA was introduced in April 1978, and later,

as then-Mayor, signed the IPA into law.

30 Myers, 272 US. at 113.

31 Cf. Winters vu. Ridley, 596 A.2d 569, 572, 577 (D.C. 1991)

(Schwelb, J., concurring) (discussing whether an inmate's “good

time credit” accumulated pursuant to the “Good Time Credits

Act” (“GTCA”) passed in 1986 could be applied to reduce the

inmate’s mandatory minimum sentence for first-degree

murder; observing that ten of the thirteen members of the

Council who passed the GTCA were also members of the

Council in 1989; and reasoning that the Council’s unanimous

passage in 1989 of a resolution and legislation declaring that

the GTCA was not intended to affect mandatory minimum

sentences imposed for first-degree murder was “surely

revealing as to what the 1986 Council intended to accomplish”

through the GTCA and “provide{d] persuasive evidence of [the

Council’s}] intent in 1986... . [i]Jn the absence of evidence that

the members of the Council were mistaken, or worse, about

what they initially intended”).

37a

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 1993 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 (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.#2

Thus, we must begin with a presumption that the

Human Rights Act safeguard that the Council

32 See also Winters, 596 A.2d at 578 (Schwelb, J.,

concurring) (“The views of a subsequent legislature are not

conclusive as to the intent of an earlier one, but they carry

‘considerable retrospective weight.”) (quoting Heckler v.

Turner, 470 U.S. 184, 211 (1985)); Stevenson, 683 A.2d at 1376

(observing that “the legislative history both at the time of

enactment and afterwards . . . points unmistakably to the

Council’s intent” in enacting the “5 percent” language of the

CAA) (italics added).

38a

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 the elected

representatives of the people—the Council and the

Mayor—thought otherwise. Importantly, it was the

Council members, not the lawyers, who were privy to

the full panoply of discussions, conferences, and

considerations that led to adoption of the CAA, and

who had the authority to propose and vote on the

IPA. It is their understanding that informs our

analysis.34 An observation by the Supreme Court in

33 For example, the Office of Corporation Counsel opined

that “[aJny substantive restrictions on the rights of the voters . .

. are contrary to [the CAA] and, hence, are void and of no

effect,” Supplemental Memorandum from Louis P. Robbins,

Principa!' Deputy Corporation Counsel, Office of the

Corporation Counsel to Judith W. Rogers, Special Assistant for

Legislation, at 2 (June 2, 1978) (3 Op. C.C.D.C. 102, 103

(1978)); see also Memorandum from Edward B. Webb, Jr.,

General Counsel to Council Members, at 2 (June 7, 1978)

(opining that the Human Rights Act safeguard “engrafts ... a

new requirement not in the Charter amendment” and

represents “an indirect attempt to further amend the Charter

and is, therefore, legally without effect”).

34 And, although a few Council members questioned

whether the IPA restriction on referenda dealing with any

budget item (including capital budget items) comported with

the CAA, see Second kKeading of Bill 3-2, “Initiative,

Referendum, and Recall Procedures Act of 1979,” Excerpt at 7

10, 15 (Mar. 27, 1979), we see no evidence that any Council

39a

Myers is instructive. The issue before the Court in

that case was whether “under the Constitution the

President has the exclusive power of removing

executive officers of the United States whom he has

appointed by and with the advice and consent of the

Senate.” 272 U.S. at 106. The Court noted that the

First Congress had decided the issue—i.e., had

“early adopted as the practical construction of the

Constitution that this power was vested in the

President alone[,]” id. at 153—“wirain two years

after the Constitutional Convention and within a

much shorter time after its ratification[,]” and while

“numberfing] among its leaders those who had been

members oi the Convention.” Jd. at 136. Regarding

the First Congress’s decision, the Supreme Court

observed that “[iJt was of course to be expected that

the decision would be received by lawyers and jurists

with something of the same division of opinion as

that manifested in Congress, and doubts were often

expressed as to its correctness.” Jd. Nevertheless, the

Court observed, “the acquiescence which was

promptly accorded [the First Congress's

interpretation] after a few years was universally

recognized.” Jd. “[T]he decision of Congress in 1789

and the universal practice of the Government under

it, had settled the question beyond any power of

alteration.” Id. at 146 (quoting Parsons v. United

States, 167 U.S. 324, 330 (1897)). So, here, the

doubts expressed by lawyers who had neither the

authority to enact the CAA nor were answerable to

member thought that the Human Rights Act safeguard

contravened the CAA. Thus, we see “no cause to suspect that a

purpose to evade” the CAA mandate prompted the Council to

adopt the Human Rights Act safeguard. Eldred, 537 U.S. at

199—200.

40a

the electorate do not undermine our reliance on the

Council's interpretation (as reflected in the IPA) of

language in the CAA that can bear more than one

meaning.

3. We Accept the Council’s

Interpretation of the CAA As

Reflected in the IPA Because It Is

Consistent with the Concerns and

Objectives T h at 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. %5

35 The particular facts discussed in Myers again are

instructive. The opinion recounts that under the Articles of

Confederation, the states’ union “had not worked well,” in part

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.

“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.” Jd. at 116-17 (citation omitted).

Nevertheless, the Constitution does not specify that the

Ala

Accordingly, we look to the context in which the

Council passed the CAA (both the original version of

the CAA and the revised version that was put to

voters in November 1977) and the broader legislative

agenda and objectives that motivated Council

members at the time.

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 1977.56 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 vigfo]Jrous 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

President may act alone to remove officials whose terms are not

-acified. The First Congress, however, passed laws that

.lected its “legislative construction” that the President does

have the power of removal of officers appointed with the advice

and consent of the Senate. /d. at 113, 153. 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. Jd. at

115-37, 164 (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).

36 The Mayor signed the Human Rights Act into law on

September 28, 1977.

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, too, that it was

37 Both the Human Rights Law and the Human Rights Act

contained language nearly identical to the following current

provision of the Act:

(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 tale

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

taking action in the wake of Newsweek, 376 A.2d

777, a decision of this court issued on March 28,

1977, and an earlier decision from 1974,°8 that called

into question the District government’s powers to

enforce some of the remedies provided in the Human

Rights Law, which had been promulgated by the pre-

Home Rule Council (under its more limited powers)

as a regulation rather than a statute. Human Rights

Act Report, at 2. D» ‘ng the Council discussion of

the bill upon its final reading, Councilmember Barry

urged the Council to “go on record as carrying out

our progressive tradition in this city of being in the

forefront of human rights,” and to make _ the

District’s human rights law “as broad and as

sweeping as we _ possibly can,” to eliminate

discrimination “under any guises.” Final Reading of

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).

38 Mendota Apartments v. District of Columbia Comm'n on

Human Rights, 315 A.2d 832, 833, 834, 835 (D.C. 1974)

(upholding Commission on Human Rights order that petitioner

cease and desist from racial discrimination in the rental of

apartments (“refusing to lease an apartment to [complainant]

because she is a Negro”), but concluding that the Commission

did not have aority to award damages to campensate

complainant for the anguish and humihation suffered because

of petitioner’s discriminatory practices, since that was beyond

the scope of reasonable and usual police regulations).

44a

Bul 2-179, “The Human Rights Act of 1977,” at 75

(July 26, 1977). Councilmember Rolark explained

that she co-sponsored the bill because she “kn[e]w

how hard that fight has been to obtain human rights

in the District of Columbia for all of us and I do

underscore ‘all.” Jd. at 76.

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 lght 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).89

39 Cf. Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531,

552 (1987) (“We agree with the Secretary that [ijt is

inconceivable that Congress intended to allow either the State

45a

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 lhmitation on the

initiative and referendum prerogative (in a manner

similar to the way in which the District’s human

rights law was and is a limitation implied in the

various “permit, license, franchise, benefit, [and]

advantage” schemes administered by agencies of the

District government. D.C. Code § 2-1403.17 (a)).4

See IPA Report, at 10 (“It is [an] implied restriction

to ensure that no initiated measure will establish an

affirmative policy in favor of discrimination in this

community”). Stated differently, we are persuaded

that the Council would have viewed the CAA as

permitting citizens to place initiatives and referenda

on the ballot only insofar as consistent with the

District’s human rights law (and that, by broadly

describing its mandate to adopt “acts as are

necessary to carry out the purpose” of the CAA, the

Council left the door open for the IPA to incorporate

explicitly that human rights safeguard).‘! “[T]o hold

of Alaska or Native Alaskans to select [i.e., own] portions of the

[Outer Continental Shelf]—a vital national resource reserve

held by the [government] for the public.”) (citation and internal

quotation marks omitted).

49 See also Filippo v. Real Estate Comm'n of the District of

Columbia, 223 A.2d 268, 269, 270 (D.C. 1966) (upholding order

of Real Estate Commission suspending petitioner's real estate

broker’s license on ground that he “exhibit[ed] and offer[ed] for

sale a house .. . to Negroes at a higher price than the same

house was exhibited and offered for sale to white persons[,]” in

violation of the police regulations prohibiting, inter alia,

discrimination for reasons of race).

41 It may be asked why, then, did the Council not state a

human rights restriction in the CAA. We addressed a similar

4bha

otherwise’ would be to conclude that the Council

intended to confer an initiative right that could

“make it impossible[,)” Myers, 272 U.S. at 164, to

achieve the Human Rights Act objectives that the

Council emphasized had the highest priority

Our recognition of this implied Human Right

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

question in Atchison, where the issue was whether the

Council's failure to include in the CAA a provision that would

have granted the Council the express power to amend or repeal

an initiative act meant, that the Council had no such power. 585

A.2d at 154. We cited the Supreme Court's observation in

United States v. Wells; Fargo Bank, 485 U.S. 351, 358 (1988)

about Congress’s failure to include a particular provision in a

tax bill: “Equally plausible is that the Committee omitted the

express exception as umnecessary.” Atchison, 585 A.2d at 156

42 Cf. Printz, 521 U.S. at 907—08 (“[Wle do not think the

early statutes imposimg obligations on state courts imply a

power of Congress to impress the state executive into its

service. Indeed, it cam be argued that the numerousness of

these statutes, contrasted with the utter lack of statutes

imposing obligations on the States’ executive . suggests an

assumed absence of such power,.”) (italics omitted). Similarly,

the fact that the Council, acting within (and somewhat beyond)

the 180-day legislative period described in the CAA, identified

no additional limitations as necessary to carry out the purpose

of the CAA, presumably would weigh against a finding that

additional types of limitations are necessary

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’ Keport

discussed in some detail. [PA Report, at 9-11. In

Reitman, the Supreme Court affirmed a ruling of the

Supreme Court of California striking down, a

violative of the Equal Protection Clause of the

Fourteenth Amendment, Proposition 14 an

initiative measure that provided that the state could

not abridge the right of any person to sell or decline

to sell his property as he or she chooses. 387 U.S. at

370-71. The Supreme Court held that “/t]he

California Court could very reasonably conclude’

that the result of Proposition 14 was that “[t]he right

to discriminate, including the right to discriminate

on racial grounds, was now embodied in the State’

basic charter,” id. at 376-77, and that the initiative

measure would “significantly encourage and involve

the State in private discriminations.” /d. at 38]

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.** The Council cited

Such involvement and compli ity, the Council! yubtle

realized, could not be avoided by a post election repeal ota

discriminatory measure; rather, the involvement of the Board

and the expenditure of District funds to put such an initiative

on the ballot would constitute the very involvement that thi

the language in Reitman that “the initiative proc

may not be used to place the Government in th

posture of affirmatively condoning discrimination

and that “when the Government's official position of

neutrality toward protected minority classification

(such as those identified in the Human Rights Act of

77) 1s removed and a policy of discrimination

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 oO} referendum that would authoriz

discrimination or hay the effect f authorizin

discrimination prohibited | the Human Right

Act

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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 implements the intent of the

CAA.‘

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

obhged to allow initiatives that would have the effect

of authorizing discrimination prohibited by the

Human Rights Act to be put to voters, and then t

one of the most emotionally charged In recent memo!

with near hvsteria on bot ice ol the 1 L Marv Ru ‘

Gay Rights Loses 2-1 in Miami Law, Washington Post, Jun

8, 1977, section A 4, col. 1. An editorial cartoon in the pape!

captured the atmosphere of violence, depicting supporters of

Bryant throwing rocks at upporters ol the anti-discriminatior

rdinance. Washington Post, June 10, 1977, section A 26, co

We note, as Chief Justice Roberts did when he declined

tay the effective date of the Marriage Kqualits Act. tl

when the IPA wa passed (with the not-easily overlooked

Human Rights Act safeguard), the legislation laid over before

Conegre for thirty legislative day without disapproval

either house. That “Coners chnose!l| not to act 1 if ur

not determinative of the legal 1 ies, but do weigh against

appellants position that th ibviously important nd

substantive provision of the IPA contlicted with the (

Jach on 1.) ¢ ( f 1

AOa

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, “|njotwithstanding 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.” D.C. Code § 1-207.52 (emphasis added).*6

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

46 We are satisfied that initiatives and referenda are

“matters involving or relating to elections” within the ordinary

meaning of the word “election.” Section 412 (b) of the Home

Rule Act authorized the Council to call “|a] special election . . .

by resolution of the Council to present for an = advisory

referendum vote of the people any proposition upon which the

Council desires to take action.” D.C. Code § 1-204.12 (b) (italics

added). The amended Charter specifically refers to a

referendum as a “referendum election.” D.C. Code § 1-204.102

(b)Q1). The D.C. Code provisions relating to initiatives and

referenda are set. out in Title 1, Chapter 10, Subchapter I of the

Code, entitled “Regulation of Elections.” In lght of these

usages, we see no reason not to recognize that the initiative

process, like the referendum process, enta:tls an “election.”

Thus, we conclude that section 752 gave the Council authority

to enact laws with respect to the initiative (and referendum)

election process.

governing District affairs. See D.C. Code § 1-203.03

(a) (providing that only the District Charter as set

forth in Title IV of the Home Rule Act is subject. to

the Charter-amending procedure); D.C. Code § 1

206.02 (providing, per section 602 of the Home Rule

Act, that the Council “shall have no authority to pass

any act contrary” to the provisions of the Home Rule

Act except as specifically provided in the Ilome Rule

Act); and D.C. Code § 1-207.61 (a) (2006) (providing

that the provisions of the Home Rule Act “shall

prevail and be deemed to supersede” any other laws

with which they are in conflict). Moreover, the

“[njotwithstanding any other provision of this Act or

of any other law” language of section 752 is “strong

stuff’ that cannot be assumed to have been

superseded by an after-enacted law. Winters, 596

A.2d at 573 (Schwelb, J., concurring) (reasoning that

“lal clearer statement [than “notwithstanding any

other provision of law’) is difficult to imagine” and

that this language “must be read to override any

conflicting provision of law in existence at the time”

and as “powerful evidence that Congress did not

intend any other, more” general, legislation,

whenever enacted, to qualify the authority .. . set

out” in the Act that contains the “notwithstanding”

clause) (italics omitted). And, the legislative history

of the Home Rule Act suggests strongly that,

through section 752, Congress intended to give the

Council authority to legislate on substantive matters

regarding clections (and not merely to establish

procedures).47

47 Section 752 appears to have originated as section 742 of

a House bill, H.R. 9056, 93d Cong. 109-110 (1973), and

thereafter was inciuded in a later bill, H.R. 9682, 93d Cong.

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 (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[.]” Losado v. Wyman, 397 U.S. 397, 415

(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

131 (1973), as section 752. The record of the Senate hearings

shows that Congress was urped to leave to the Council

“important nitty-gritty questions” such as whether ex-felons

would be permitted to vote and whether there could be a

durational residency requirement for voting (the

constitutionality of which was in question). See Hearing on S.

1603 and S. 1626, 92d Cong. 222, 228. Congress was urged to

“make only those changes” to the Election Act that were

“absolutely necessary to enable the first clection to be held,”

leaving it to the Council or Congress later to make “a thorough

revision.” /d. at 231. The Report of the Committee on the

District of Columbia on H.R. 9682 together with Dissenting

Views, 93d Cong., lst Sess. (Sept. 11, 1973) includes a

“Dissenting Commentary on Significant Provisions of H.R.

9682.” H.R. Rep. 93-482, at 141 (1973). That commentary

asserts that section 752 “would permit the local government to

exempt all District employees from the Hatch Act, which

currently prohibits employees of the Federal and _ District

Governments from taking an active part in_ political

management or in political campaigns.” Jd. at 165 (internal

quotation marks omitted).

53a

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 1s 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

Mlection Act mandated that the Board would be an

independent agency. Specifically, the Ilection Act

provided (and still provides, see D.C. Code § 1-

1001.06 (a) (2006)), that “[iJn the performance of its

duties, the Board shall not be subject to the direction

of any non-judicial officer of the District.” D.C. Code

§ 1-1106 (a) (1973). We interpret section 752° to

confer upon the Council the authority to enact laws

giving direction to the Board in the handling of

clection matters, notwithstanding the Board’s status

as an independent agency.”® This is what the Council

did in imposing the Human Rights Act safeguard of

the IPA, by declaring that, consistent with the

Council’s interpretation of the scope of the right of

initiative in the CAA, the Board must refuse to

accept initiative measures that it determined would

authorize prohibited discrimination. In doing so, the

48 As originally proposed in the House Bill (H.R. 9056),

section 752 (then numbered = as_ section 742) read

“Injotwithstanding any other provision of this Act or of any

other law, the Council shall have jurisdiction to legislate with

respect to matters involving or relating to elections in the

District” (italics added). H.R. 9056, 93d Cong. 109 110. This

language supports a reading that a focus of section 752 was the

Council’s authority vis-a-vis the independent Board.

da

Council explicitly relhed on its authority under

section 752. See IPA Report, at 11 (“Further legal

support for the provisions of the enabling legislation

here presented are found in [section 752], which

yrant|s}] the Council plenary authority over all

election matters.”). Under section 752-——and despite

what one court has called the “general rule favoring

postelection review” of the validity of a proposed

initiative measure’9—the Council had authority to

require the Board to conduct pre-election review of

whether the subject matter of a proposed initiative is

a proper subject matter. See Convention Ctr. Ill, 441

A.2d at 914 (concluding that the IPA mandate that

the Board exclude from the ballot a referendum

measure that would negate a budget-request act

“comports with the Charter Amendment limitations

on the initiative right [and that] the reliance of the

Board ... on that provision was entirely proper’).5

4 Legislature v. Deukmejian, 669 P.2d 17, 20 (Cal. 19838)

(per curlam).

Appellants have not contended that the resultant prior

subject-matter restraint on initiative measures implicates the

First Amendment. right to free speech, and relevant persuasive

authority is to the contrary. “The First Amendment imposes no

restriction on the withdrawal of subject matters from the

initiative process.” Mariyuana Policy Project, 304 F.3d at 84-85

(holding that, by complying with the so-called Barr Amendment

(through which Congress banned the District from making any

expenditures to reduce penalties associated with marijuana) in

rejecting a proposed initiative that would reduce marijuana

penalties, the Board did not viviate the First Amendment,

because “although the First Amendment protects public debate

about. legislation, it confers no right to legislate on a particular

subject.”) (citing Skrzypczak v. Kauger, 92 F.3d 1050 (10th Cir.

1996)) (holding that state supreme court decision removing an

abortion initiative from the ballot did not violate a voter's First

Amendment rights because the voter remained free “to argue

Nha

The Board’s decision, as has been made evident by

this and many other cases, is subject to prompt

judicial review.

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.°!

C. The Proposed Initiative Would

Authorize or Have the Effect of

Authorizing Discrimination Prohibited

by the Human Rights Act.

against legalized abortion, to contend that’ pre-submission

content review of initiative petitions is unconstitutional, or to

speak publicly on any other issue”), overruled on other grounds

by Initiative & Referendum Inst. v. Walker, 450 F.3d 1085, 1099

(10th Cir. 2006) (en bane) (“Although the First Amendment

protects political speech incident to an initiative campaign, it

does not protect the right to make law, by initiative or

otherwise.”). There is “no law ... establishing a right to have a

particular proposition on the ballot.” Skrzypczak, 92 F.3d at

1053.

' One final point: There is no doubt that, through the

Human Rights Act and the Human Rights Act safeguard, the

Council has sought to promote a_ broad policy of non-

discrimination that will preclude voters from putting some

measures on the ballot. To the extent that citizens disagree

with this fundamental policy, they are not without a remedy.

The Council “is, in the end, accountable to the electorate and

the political process for its advocacy. If the citizenry objects,

newly elected officials later could espouse some different or

contrary position.” Legal Serus. Corp. v. Velazquez, 531 U.S.

533, 541-42 (2001) (citation and internal quotation marks

omitted).

56a

Appeliants 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 [fi.e., the Human

Rights Act] nor its legislative history

explicitly mentions same-sex marriage, it 1s

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

57a

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 af

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.®? In Dean, a panel of this court

52 Although the Board’s brief argues that the proposed

initiative would authorize or have the effect of authorizing

discrimination on the basis of “gender and/or sexual

orientation,” the Board’s decision was that the initiative would

authorize discriminatien prohibited by the Human Rights Act

in that it would “deny recognition to... marriages on the basis

of the sexual orientation of the individuals who comprise the

5Ra

considered a claim by a same-sex couple that, “by

refusing to issue them a marriage license, the Clerk

lof the Superior Court acting through the Marriage

License Bureau] discriminated against them because

of their sex or sexual orientation, in violation of the

Human Rights Act, D.C. Code §§ 1-2501 to -2557

(1992).” 653 A.2d at 318. Before reaching this issue,

the court set out a lengthy discussion of the

language and legislative history of the District's

marriage statute, which, the Dean court concluded,

“demonstrate that neither Congress nor the Council

of the District of Columbia has ever intended to

define ‘marriage’ to include same-sex unions.” /d. at

310. The Dean opinion noted that the only

significant changes in the District's marriage and

divorce provisions since 1901 had occurred in the

Marriage and Divorce Act of 1977, D.C. Law 1-107,

1977 D.C. Stat. 114. Jd. at 311. On the path to

enacting that legislation, which “merely amended

existing code provisions,” /d. at 312, the Council had

declined to act favorably on a bill introduced by

Councilmember Dixon that would have permitted

marriages between persons of the same sex. /d. at

311. The court saw no “indication that more recent

Congresses, or the Council in amending the

marriage statute, ever modified the fundamental

legislative understanding that ‘marriage’ is limited

to opposite-sex couples. /d. at 314. Rather, the court

concluded, there was a “consistent legislative

understanding and intent that ‘marriage’ means

and thus is hmited to—unions between persons of

opposite sexes.” Id. at 315. This “statutory

couples.” Accordingly, our analysis focuses only on _ the

correctness of that ruling.

59a

understanding [was] further confirmed by the

ordinary sense and meaning traditionally attributed

to the word ‘marriage” in dictionary definitions. /d.

The court could not “conclude that any legislature for

the District of Columbia that has addressed the

marriage statute has ever intended to authorize

same-sex unions.” TJ/d. (“[Clases from other

jurisdictions with marriage statutes similar to the

District's aor? have uniformly interpreted

[‘}marriage,’ by definition, as requiring two members

of opposite sexes”).

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 heenses to same-sex couples, gays

and lesbians are unlawfully denied an ‘equal

opportunity’ to participate in marriage, an important

‘aspect of life.” Jd. 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

60a

under the Human Rights Act). Jd. at 319.59 The court

further acknowledged that “Itlhe Council!

undoubtedly intended the Human Rights Act to be a

powerful, flexible, and far-reaching’ prohibition

against discrimination of many kinds, including sex

and sexual orientation.” Jd. The court reasoned,

however, that the Council “did not intend the Act to

prohibit every discriminatory practice,” id., and went

on to hold:

[Wle 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

[Als we have seen—“marriage” requires

persons of opposite sexes; there cannot be

3 The court noted that the Human Rights Act defined a

“place of public accommodation” to include “establishments

dealing with goods or services of any kind,” as well as “public

halls.” It noted the position of amicus Human Rights

Commissioners that “all District of Columbia agencies are

places of public accommodation, within the meaning of the

Human Rights Act, because they provide goods and services to

District residents.” Jd.; cf. Ptaszynski v. Uwaneme, 853 A.2d

288, 297 (N.J. App. Div. 2004) (holding that “any State

governmental agency is a place of public accommodation” for

purposes of the definition of “place of public accommodation” in

the New Jersey Law Against Discrimination, N.J. Stat. § 10:5-5

(1)); see also Thomas v. Cnty. of Camden, 902 A.2d 327, 332

(N.J. App. Div. 2006) (“|P]ublic entities .. ., by their very

nature, constitute a place of public accommodation’).

discrimination against a same-sex marriage

if, by independent tatutory definition

extended to the Human Rights Act, there can

be no such thing

Id. at 320.

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.‘

44 In 2002, the pertinent provision of the Human Rights

Act was amended to read as follows:

Except as otherwise provided for by District law o1

when otherwise lawfully and reasonably permitted, it

shall be an unlawful discriminatory practice for

District government agency or office to limit or refuse

62a

The proposed initiative would require District

government agencies and offices 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.®° 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

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

D.C. Code § 2-1402.73 (2006) (italics added). This amendment

is fairly regarded as a clarification. As discussed, in 1977 the

Home Rule Council re-enacted without substantive change the

Human Rights Law, regarding which the pre-Home Rule

Council said that it was “a priority .. . that District government

will be the first to comply” with the “spirit” of the law, such as

by addressing complaints of d

officers. Human Rights Law Report, at 2. In Executive Order

94-132 (May 19, 1994), then-Mayor Sharon Pratt Kelly

summarized the interpretation that enjoycu acquiescence: that

“Offices and agencies of the District government are covered by

the prohibitions of the Human Rights Act.... No... agency of

the District government may engage in any prohibited activity,

including denial of full and equal enjoyment of its services,

iscrimination against police

facilities, privileges or advantages to any person in violation of

the Human Rights Act.” See also note 53 supra

55 The Board's brief refers to the “more than 200 District

rights and responsibilities of civil marriage.”

63a

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,°® 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 [PA—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

6 See Estenos v. PAHO/WHO-Fed. Credit Union, 952 A.2d

878, 887 (D.C. 2008) (explaining that under the Human Right

Act, “despite the absence of any intention to discriminate,

practices are unlawful if they bear disproportionately on a

protected class and are not independently justified for some

nondiscriminatory reason”) (quoting Gay Rights Coal. of

Georgetown Univ. Law Ctr. v. Georgetown Univ., 536 A.2d 1, 29

(D.C. 1987) (en banc) (“[T]he Council imported into the Human

Rights Act, by way of the elfects clause, the concept of disparate

impact discrimination|.|” (further citation omitted)); cf. Loving

v. Virginia, 388 U.S. 1, 2, 8 (1967) (rejecting the argument that

because a statute prohibiting interracial marriage applied

equally to black and white citizens, it did not discriminate on

the basis of race)

64a

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 “Imitiative, Referendum, and Kecall

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 “merely a_ technical change,

whereby the language [that] prohibits” specific

discriminatory types of petitions has been deleted .

. The effect is synonymous with that of Bill 2-317

[which contained the list of proscribed categories of

discrimination, including’ sexual orientation].”

Memorandum from Deborah K. Green, Legislative

Assistant to the Chairman, to the Committee on

Government Operations, on Bill 3-2, the “Initiative

Referendum and Recall Procedures Act of 1979,”

Kebruary 6, 1979. at 2

In light of that documentation, we regard the

IPA’s reference to the Human Rights Act of 1977 a

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.” HEOC vu. Chrysler Corp., 546 F

Supp. 54, 74 (B.D. Mich 1982). Moreover, in

enacting the Human Rights Act, the Council re

enacted pnor 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 huinan

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.” /d

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 Superor Court upholding th

Board’s determination 1s

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

yranted to the voters at large. In 1978, five year

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

An initiative 1s “the process by which the electors of thi

District of Columbia may propose laws (except law

appropriating funds) and present such proposed laws directly

to the registered qualified clectors of the District of Columbia

for their approval or disapproval.” D.C. Code § 1-204.101 (a)

(2006). If a majority of those voting approves an initiative, it

becomes law, assuming (as 1s also true for an act of the Council)

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 mor

comprehensive Home Rule Act, which places certain

limits on the legislative power of the District

In 2009, appellants? proposed that the voter

exercise their night of initiative and declare that

“[o]nly marriage between a man and a woman |

valid or recognized in the District of Columbia.” Th

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

Hiuman Rights Act. This court must decide, as a

matter of first impression, whether the IPA's

that it is not disapproved during a mandatory period

Congressional review. D.C. Code § 1-204.105 (2006)

' Appellants, the proponents of the Marriage Initiative of

2009, are Bishop Harry Jackson, Jr., Reverend Walter

Fauntroy, Reverend Dale Wafer, Melvin Dupree, Apostle Jame

Silver, Reverend Anthony Evans, Robert King, and Elder

Howard Butler

68a

“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 lhght of

the majority’s holding, however, and in lhght 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

The Factual and Procedural Background

On two occasions (in 2009 and 2010), appellant

Jackson and others presented referendum® petitions

to the Board. seeking to suspend two acts of the

Council relating to same-sex marriage, but their

efforts were unsuccesstul. The Board rejected the

proposed referenda, citing the Human Rights Act

(“HRA”), litigation ensued, and the acts became law.‘

“The term ‘referendum’ means the process by which thi

registered qualified electors of the District of Columbia may

suspend acts of the Council of the District of Columbia (except

emergency acts, acts levying taxes, or acts appropriating funds

for the general operation budget) until such acts have been

presented to the registered qualified clectors of the District of

Columbia for their approval or rejection.” D.C. Code § 1

204.101 (b) (2006)

‘ The Superior Court, this court, and Chief Justice

Roberts, sitting as Circuit Justice, declined to stay the effective

date of the Religious Freedom and Civil Marriage Equality

69a

“No act is subject to referendum if it has become law

according to the provisions of § 1-204.04 fafter a

period of congressional review].” D.C. Code § 1-

204.102 (b)(2) (2006).

The Jury and Marriage Amendment Act of 2009,

which became law on July 7, 2009, provides that the

“

District of Columbia will recognize “|a] marriage

legally entered into in another jurisdiction between 2

persons of the same sex... .” D.C. Code § 46-405.01

(2010 Supp.). On March 3, 2010, the Religious

Freedom and Civil Marriage Equality Amendment

Act of 2009 became law. It allows couples of the

same sex to marry in the District of Columbia. D.C

Code § 46-401 (2010 Supp.).

Meanwhile, on September 1, 2009, appellants

submitted the Marriage Initiative of 2009. The

Board refused to accept the initiative, reasoning

that, “lijf 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

Amendment Act of 2009. See Jackson v. District of Columbia

3oard of Elections and Ethics, 1308. Ct. 1279 (2010)

70a

judgment to the Board and the District. This appeal

followed.

ll. 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.” U.S.

CONST. art. 1, § 8, cl. 17. However, in 1973 Congress

enacted the District of Columbia Self Government

and Governmental Reorganization Act, Pub. L. 93

198, 87 Stat. 777 (1973) (codified at D.C. Code §§ 1-

201.01--1-207.71), popularly known as the Home

Rule Act. Through this transforming legislation,

Congress delegated some, but not all, of its

legislative power over this jurisdiction to the Council

of the District of Columbia while retaining ultimate

legislative authority over the District. See D.C. Code

§§ 1-204.04, 1-206.01; see also District of Columbia v.

Greater Washington Central Labor Council, AFL-

CIO, 442 A.2d 110, 113-14 (D.C. 1982) (discussing

Congress’s delegation of legislative power). Congress

intended, among other things, to “grant to the

inhabitants of the District of Columbia powers of

local self- government... and, to the greatest extent

possible, consistent with the constitutional mandate,

relieve Congress of the burden of legislating upon

Although the acts 5 of the Council related to same-sex

marriage have become law, this appeal is not moot. We have

held that the right of initiative may be used to repeal or amend

existing legislation. Convention Center Referendum Committee

v. District of Columbia Board of Elections and Ethics, 441 A.2d

889, 909 & n.38 (D.C. 1981) (en banc) (Convention Center 111

dla

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

201.02 (2006).

Nevertheless, the Home Rule Act contains

several limitations on the legislative power of the

District.6 For example, the Council has no authority

to “[ijmpose 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 Dhistrict of

Columbia courts, or to “amend or repeal any Act of

Congress ... which is not restricted in its application

exclusively in or to the Diustrictf{.]” D.C. Code §

206.02 (a)(1), (3), (5), (8) (2006): see also D.C. Cod

1-206.03 (restrictions related to the budget process)

The Home Rule Act 1s 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 " D.C. Code

6 See D.C. Code § 1-203.02 (entitled “Legislative power

which state

t.xcept as provided in §§ 1-206.01 to 1-206.03, the

legislative power ol the District shall extend to a

nghtful subjects of legislation within the District

consistent with the Constitution of the United State

and the provisions of this chapter subject to all the

restrictions and limitations imposed upon the state

by the 10th section of the Ist article of the

Constitution of the United State

Article I, Section 10, of the Constitution forbids the state

to do a vartety of things, including entering into treats

coining money, granting a title of nobility, or, without the

consent of Congress, laying any duty of tonnage

§ 1-203.01 As we have noted, sce supra note 6

legislation passed by the Council (or by initiative)

must be “consistent with the Constitution of the

United States and the provisions of this chapter [th

Home Rule Act] " D.C. Code § 1-203.02. The

Home Rule Act and the District Charter thus serv:

as a constitution for the District. See Convention

Center III, 441 A.2d at 908 (plurality opinion

(egislation enacted by the Council must bi

consistent with the U.S. Constitution and the Hom:

Rule Act”); id. at 930 (dissenting opinion) |

beyond serious dispute that legislation may not

amend a constitution (the Charter)’); Dtstrict

Columbia v. Washington Home Ownership Coun

Inc., 415 A.2d 1349, 1367 (D.C. 1980) (en ban

(concurring opinion) (referring to the Home Rule Act

is “the ‘constitutional’ analog’)

The Hom« Rul \ct net 1 proce ic

amending thi Charte1 which require

collaboration among the Council, the voters of thi

District of Columbia, and Congress. With certa

exceptions not relevant here, the Charter “may bi

amended b in 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.’ D.C. Code § 1-203.03 (a). At

the time of the Charter Amendments Act, on which

we will focus here, the Home Rule Act required that

Congress “adopt a concurrent resolution

approving such amendment” before it would becom:

effective. D.C. Code § 1-125 (b) (1977 Supp ). Now.

an amendment to the Charter takes effect unless

Congress, during a period of congressional review

enacts a joint resolution disapproving the

amendment. D.C. Code § 1-203.03 (b)

lll. The Right of Initiative and Its Limits

(he rights of initiative, referendum, and recall

were added to our form of government in 1978 by tl

Charter Amendments Act. (“CAA”) and. theret

became part of the District's Charter. D.C. Law 2-4¢

41).C. Reg. 199 (1977) (as approve d by H. R. Cor

Res. 464 & 471. 95th Cong. (1978)) (codified at D.-¢

Code § 1-204.101-107 (initiative and referendun

ind D.C Code \ 1-204 11] llo (recall)) The (

Charter Amendments are “functionally equivalent

,

to constitutional amendments, Convention Cente

Referendum Committe Board of Elections an

ithics. 399 A.2d 550. 551 (D.C. 1979) (Convent

Center fl), and they may not be changed by ordinar'

legislation ‘We are required to construe the right of

initiative liberally and may impose on the right

only those limitations expressed in the law

clear[{ly] and compelling[ly]” imphed.” Hesse

Burden, 584 A.2d 1, 3 (D.C. 1990) (Hessey J) (quoti

Convention Center IIT, 441 A.2d at 913)

\s amended, the Charter includes one expr

limitation on the subject matter of an initiative

the voters may not propose “laws appropriatin;:

funds. *® Other expres limitation are found

Demonstrating that it thought irefully about the need

for express limitations when drafting the Charter Amendment

Act, the Council placed three express limitations on the right of

referendum. See supra note 3

’ The parties agree that this ise doe not plicate ti

express limitation on the right of initiativs

l4da

elsewhere 1n the Home Rule Act: as we have alread,

mentioned, the legmslative power of the District

(whether exercised by the electors directly or by the

Council) does not extend to certain enumerated

subjects. Some limitations are implicit “(t]he

initiative right must conform to the structure of

rovernment established by Congress in the Charter.

Hessey v. District of Columbia Board of Elections

and Ethics, 601 A.2d 3, 19 (D.C. 1991) (Hessey 11)

Importantly, all of these hmuitations, whether

express or implied, are found in the Charter or thi

Home Rule Act

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 Dzistrict 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 42 U.S.C. §§ 1981 and 1982.|" Arthur

Young & Co. v. Sutherland, 631 A.2d 354, 371 (D.C

1993). Title 34 also drew upon a rich history of loca!

legislation, police regulations, and Commissioners’

Orders dating back to 1869 that prohibited various

types of discrimination in the District of Columbia.’

% See, e.g., District of Columbia | John R. Thompson Co

346 U.S. 100 (1953) (anvolving 1872 and 1873 acts of the

Legislative Assembly of the District of Columbia which, among

other things, prohibited racial discrimination by restaurant

keepers and hotel proprietors); Newsweek Magazine v. District

of Columbia Commission on Human Rights, 376 A.2d 777, 783

(concerned tnat tne poh powe! regulatior

litle 34 might not have the same force and effect a

a statute, the (post Home Rule) Council of the

District of Columbia re-enacted the regulation

lhe Human Right Act of 197% Blodgett

U/niversity Club, 9380 A.2d 210. 217 (D.C. 2007). TI

first section of the Human Right Act explains that

the legislature intended “to secure an end in the

District of Columbia to discrimination for an

other than that of individual merit Bar

ubstantive provision which existed n 19%

prohibited discrimination in public accommodati

mploym«e nt, educational institutio! ma nousil

and commercial space based upo! mal

haracteristics, including sex and sexual orientatio1

In amending the [Human Rights Act] u 197

the legislature emphasized its ‘broad scop

fact that its coverage is wider than Title VII

(1).¢ 1977) (noting that Title 34 repealed and replaced Art

10 (Concerning Admission to, and Accommodation in, Licer

Place of Public Amusement in the District of Columbia

\rticle 45 (Prohibiting Discrimination by Reason of Ra

Color, Religion or National Origin Against Persons Seeking

Utilizing Housing Units) and Article 17 (Prohibitin

Discrimination by Reason of Race, Color, Religion, Natio:

Origin or Sex Against Persons Seeking or Engaged

kmployme nt in the District of Columbia) of the Pol

Regulations of the District of Columbia); Filippo Uv. Real Est

Commission of the District of Columbia, 223 A.2d 268 (D.

1966) (affirming order which suspended license of real ¢

broker who violated fair housing regulations found in Article 4

of the Police Regulations); Central Amusement | District

Columbia, 121 A.2d 865 (D.C. 1956) (prosecution tor violatin

1869 police regulation, then still in effect, which pr

racial discrimination in places of public amusement)

| Lf I ) rs

OUI V¥ that ti in Kight t) in

yu) { ort if iv 1d | l i vO) |

forced b | ind official f tk District

‘ ernment (; Reieht ( tie

(;eorvetou , ( ipy 0?

‘/niversit t : Lf }

ternal q tat , if mitte

ertnetl ‘ tra t iss rte! i Huma

i t \ | t rt | | , | rit I

( } | na\ tl iuma i {

, ’ : i

,

, ‘ rin r

tire tand tnat Lize

‘ i W ( f | f i

i f iitia I ' ! nt

ut riz rin o|

» ‘ ey tl ,

Vi

; | | I ti} ; |

\ Ihe Initiative Keferendun ind Keca

Procedures Act of 1979

78a

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, D.C. Code § 1-204.107, uses the

term “subpart” in place of “Amendment”). The

outcome of this appeal depends mainly on how we

construe this portion of Amendment No. 1.

A. Creating Time to lmplement the CAA

The District of Columbia asserts that “[d]Jeciding

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 1, where this court held that the

Charter Amendments were not self-executing. After

quoting or describing various excerpts from the

79a

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.” /d. “[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.” 395 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.'! Notably, Section 8 of

Amendment No. 1 does not purport to enlarge the

Council’s authority; it does not contain any

additional delegation of Congressional power.

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

11 The House Report accempanying the concurrent

resolution which approved the CAA explained: “Section 8

requires the Council to adopt appropriate implementing acts,

and makes October 1, 1978, the effective date of this Council

Act.” H.R. Rep. No. 95-890, at 5 (1978). The attached report

from the Council of the District of Columbia similarly states

that Section 8 “directs the Council to adopt any further acts

which may be necessary to implement the Amendment and

prohibits the submission of any initiative or referendum

petitions to the Board until after October 1, 1978.” Id. at 17.

80a

Article I, Section 8, Clause 18 of the Constitution. !2

That model might have been used if the Council, the

voters, and the Congress intended that Section 8

enhance the power of the Council. The fact that the

word “necessary” appears in both places does not

make this an apt comparison.

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]le 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 (D.C. Code § 1-204.107) instructs the Council to

“adopt such acts as are necessary to carry out the

purpose of this subpart [Amendment] within 180

12 Article 1, Section 8, Clause 18 provides: “lhe Congress

shall have Power .. . {t]o make all Laws which shall be

necessary and proper for carrying into Execution the foregoing

Powers and all other Powers vested by this Constitution in the

Government of the United States, or in any Department or

Officer thereof.”

days of the effective date of this subpart.” Charter

Amendment No. 2 — Subpart 2 as codified -

establishes the mght of recall. A corresponding

provision, D.C. Code §1-204.115, instructs the

Council to “adopt such acts as are necessary to carry

out the purpose of this subpart... .”

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 (albcit

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. D.C. Code § 1-1001.16.'3 The Board must reject a

13 Kor 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] ... .” D.C.

Code § 1-1001.16 (a)(1). If the Board accepts the initiative or

referendum measure, “[w]ithin 20 calendar days, of [such

acceptance}],” it must, among other things, “[p]repare, in the

proper legislative form, the proposed [measure].” D.C. Code § 1-

82a

petition that is not in the proper form. D.C. Code § 1-

1001.16 (b)(1)(B). Moreover, “the Board shall refuse

to accept the measure if the Board finds that it is not

a proper subject of initiative ... under the terms of

title IV of the District of Columbia Home Rule Act

[the District Charter]... .” D.C. Code § 1-1001.16

(b)(1). These were genuine implementing steps. But

the Council went further and inserted a restriction

on the subject matter an initiative could address — a

limitation not found in the Charter or in the Home

Rule Act.

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.]” D.C. Code § 1-1001.16 (b)(1)(C). But

the legitimacy of this concern does not mean that the

Council had the authority to restrict a_ right

established in the Charter. In lght of the current

litigation, it is striking that, while the IPA was

under consideration, both the Corporation Counsel

and the legislature’s own General Counsel warned

that the Council did not have the power to impose

1001.16 (c)(3). “After preparation, the Board shall adopt the

summary statement, short title, and legislative form at a public

meeting and shall within 5 days, notify the proposer of the

measure of the exact language. In addition, the Board, within 5

days of adoption, shall submit the [same information] to the

District of Columbia Register for publication.” D.C. Code § 1

1001.16(d).

83a

this limitation on the right of initiative. The Office

of Corporation Counsel explained, for example, that

[tlhe 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)."4

14 Both the Office of Corporation Counsel and the General

Counsel of the Council of the District of Columbia issued

cautionary advice on more than one occasion while the IPA was

under consideration. For example, commenting in the spring of

1978, Corporation Counsel stated: “Additional restrictions in

the subjects subject to initiative which are not in the Charter

Amendment could not be made pursuant to an act of the

Council, but only through the Charter Amendment procedure.”

Memorandum from Louis P. Robbins, Principal Deputy

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

Legislation, 6 4] 2 (May 2, 1978); 3 Op. C.C.D.C. 60, 65 (1978).

The General Counsel stated that in contrast to all the other

limitations on the right of initiative, which were “procedural in

quality” and provided for a “ministerial review process

consistent with the function of an implementing act[,]” the

antidiscrimination provision “engrafts ...a new requirement

not in the Charter amendment .. . .” Memorandum from

Edward B. Webb, Jr., General Counsel, to Council Members, 2

(June 7, 1978) (attaching the supplemental memorandum from

84a

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, 382) 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 [,] .. . ‘[iJt

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...

(1974) (quoting Marbury v. Madison, 1

Cranch 137, 177... (1803)).

District of Columbia v. Washington Home Ownership

Council, Inc., 415 A.2d at 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

Corporation Counsel). The General Counsel opined that

“(cjlearly, this is an indirect attempt to further amend the

Charter and is, therefore, legally without effect.” Id.

ji -

Soa

enact legislation inconsistent with the Charter

Amendments. Price v. District of Columbia Board of

Klections and Ethics, 645 A.2d 594, 598-99 (D.C.

1994) (citing Convention Center III, 441 A.2d at 915).

“[Llegislation implementing the Charter

Amendments is valid only if it does not conflict with

the Charter Amendments.” Jd. “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 D.C. Code § 1- 205(a) (1992) [now

codified as D.C. Code § 1-203.03 (a) (2001)].” Price,

645 A.2d at 599.

VI. Appellees’ Arguments

A. Should We Abstain?

Invoking the Supreme Court’s decision in Baker

v. Carr, 369 U.S. 186 (1962), the District urges us to

abstain from deciding this case. It argues, among

other things, that the Council’s inclusion of anti-

discrimination provisions in_ the _ Initiative,

Referendum and Recall Procedures Act of 1979 has

“functioned successfully” over the past decades and

now forms part of a statutory scheme upon which

the government and the public rely. This argument

surely overstates the case. Although the Human

Rights Act limitation on the right of initiative has

existed for more than thirty years, this is the first

6a

challenge to its validity.!5 More importantly, Baker

makes plain that “[t]he courts cannot reject as ‘no

law suit’ a bona fide controversy as to whether some

action denominated ‘political’ exceeds constitutional

authority|[,]” 369 U.S. at 217, which is precisely what

is at issue here.

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)).

15 In Hessey III we held that a proposed initiative would

not violate the HRA. Hessey v. Burden, 615 A.2d 562, 579 (D.C.

1992) (Hessey IIT). Apparently none of the parties challenged

the validity of the HRA limitation on the right of initiative. In

Committee for Voluntary Prayer v. Wimberly, 704 A.2d 1199

(D.C. 1997), opponents of a voluntary prayer initiative argued

that it violated the HRA as well as the constitution. We did not

consider whether the initiative violated the HRA because we

affirmed the trial court’s holding that the initiative was

“patently, obviously, and unquestionably unconstitutional.” /d.

at 1201, 1203. More importantly, there is no indication that

either party challenged the validity of the HRA limitation.

“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 in the legislative assertion oi a questioned

power, is minimized.” Myers v. United States, 272 U.S. 52, 171

(1926).

87a

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 “lhmit 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 at 600 (concluding that a portion of the IPA

conflicted with the Charter Amendments). The

District does not satisfactorily explain why this case

is so different that we must, or even may, abstain

from deciding it.

Sa

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 29 (“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 to limit the right

of initiative in any way the Council thought

necessary. !®

i6*Since amendments to the Charter’ required

Congressional approval when the initiative right was approved

The District misplaces its reliance on Eldred 1

Ashcroft, 537 U.S. 186 (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 jong term of years, fixes the

construction to be given [the Constitution’s]

provisions. Jd. at 213 (quoting Myers v. United

States, 272 U.S. 52, 175 (1926)). This case is not

comparable to Kldred, where the Court relied upon

“Congress’ unbroken practice since the founding

generation... . 587 U.S. at 213-14. “History

revealled] 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.” Jd. at 200. 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]

centurfies], it is almost conclusive.” Jd. at 213

(internal quotations and citation omitted).

by Congress, D.C. Code § 1-1320 (1991 Repl.), the court must

consider Congressional intent in approving the amendment

Because the Charter amendment is in the form of an act passed

by the Council, and because the Charter Amendment on the

right of initiative included authority for the Council to adopt

implementing legislation, the court must address the intent of

the Council.” Hessey IJ, 601 A.2d at 7.

YLa

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.'’ ‘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

17 No inference of approval may fairly be drawn from the

failure of Congress to disapprove the IPA, which contained the

Human Rights Act limitation on the right of initiative. See

Springer v. Government of the Phillipine Islands, 277 U.S. 189,

209 (1928) (“The inference of an approval by Congress from its

mere failure to act at best rests upon a weak foundation. And

we think, where the inference is sought to be applied, as here,

to a case where the legislation is clearly void as in

contravention of the Organic Act, it cannot reasonably be

indulged.”); Clayton v. People of the Territory of Utah, 132 U.S

632, 642 (1890) (“At all events, it 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.”). But see majority opinion at note 45

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 .. ., 1S minimized

272 U.S. at 170-71. 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. 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?!® No satisfactory answer

has emerged from the legislative history of the CAA.

However, the history of the IPA strongly suggests

‘18 ‘The Council approved the original version of the Charter

Amendments Act before it passed the Human Rights Act. The

Mayor signed the Human Rights Act on September 28, 1977. 24

D.C. Reg. 6038 (Jan. 27, 1978). However, the Council amended

the Charter Amendments Act four weeks later, before it was

presented to the voters on November 8, 1977. H.R. Rep. No. 95

890, at 2

92:

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 imposing this

limitation on subject matter, the members of the

Council did not suggest that the CAA had

empowered them to do so. Rather, they invoked

authority outside the CAA — the Supreme Court’s

decision in Rettman v. Mulkey, 387 U.S. 369 (1967),

and the Council’s own statutory authority over

elections. D.C. Council, Report on Bill No. 2-317 at

11 (May 3, 1978). Neither rationale gave the Council

authority to amend the Charter.

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

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state action that might circumscribe this right.” 387

U.S. at 374. When enacted, it became Art. I, § 26, of

the California Constitution,!9 but the state Supreme

Court held that it “was invalid as denying the equal

protection of the laws guaranteed by the Fourteenth

Amendment.” Jd. at 373. Affirming, the Supreme

Court of the United States accepted the California

court’s conclusion “that § 26 would and did have

wider impact than a mere repeal of existing statutes.

... The right to discriminate, including the right to

discriminate on racial grounds, was now embodied in

the State’s basic charter, immune from legislative,

executive, or judicial regulation at any level of the

state government.” Jd. at 376-77. “The California

Supreme Court believes that the section will

significantly encourage and involve the State in

private discriminations|,]” and the Supreme Court of

the United States concluded that it had “been

presented with no_- persuasive’ considerations

indicating that these judgments’ should be

overturned.” /d. at 381.

‘9 Art. I, § 26, provided

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, tn his absolute

discretion, chooses.

387 U.S. at 371. The real property covered by § 26 was limited

to residential property. Jd. The section did not apply to state

owned real! estate. /d.

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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, 413 P.2d 825, 829 (Cal.

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, D.C. Code § 1-207.52 (2006) (“Section 752” of

the Home Rule Act), which grants the Council

“authority to enact any act or resolution with respect

to matters involving or relating to elections in the

District.” We emphasize, however, what we have

said before — “nothing in Section 752... grants the

Council authority to amend the Charter... .” Price,

645 A.2d at 599.

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

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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.” D.C. Code § 1-204.04.

Allowing the voters to exercise legislative power

amounted to a further delegation of Congress’s

authority. Creating that right thus required a

Charter Amendment.

If a Charter amendment was necessary to create

the right of initiative, an amendment is equally

necessary to limit that right. See Price, 645 A.2d at

599. And by restricting the subject matter which an

initiative may address, the Human Rights Act

limitation unmistakably alters (and reduces) the

right of initiative. The Council’s authority relating to

elections, found in Section 752, did not (and cannot)

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authorize a restriction amounting to an amendment

of the Charter.2°

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 extingui

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