Opposition Brief — Jackson v. District of Columbia Board of Elections & Ethics

upreme Court, US

FILED

DEC 17

A\ @&

No. 10-511

IN THE

Supreme Court of the Anited States

HARRY R. JACKSON, JR., ET AL., Petitioners.

y

DISTRICT OF COLUMBIA BOARD OF ELECTIONS

AND ETHICS; DISTRICT OF COLUMBIA, Respondents

On Petition for a Writ of Certiorari to the

District of Columbia Court of Appeals

BRIEF FOR RESPONDENTS IN OPPOSITION

KENNETH J. MCGHIE PETER J. NICKLES

General Counsel Attorney General

RUDOLPH MCGANN for the District of Columbia

Counsel for the TODD S. KIM

District of Columbia Solicitor General

Board of Elections for the District of Columbia

& Ethics Counsel of record

441 4th Street, NW DONNA M. MURASKY

Suite 270 Deputy Solicitor General

Washington, DC 20001 Stacy L. ANDERSON

(202) 727-2194 Assistant Attorney General

rmcgann@dcboee.org Office of the Att’y General

for the District of Columbia

441 4th Street, NW, #600-S

Washington, DC 20001

(202) 724-6609

todd. kim@dc. gov

QUESTION PRESENTED

Whether the District of Columbia Court of Ap

peals erred in deciding, as a matter of local law, that

the Council of the District of Columbia was autho

rized to prohibit discriminatory voter initiative

TABLE OF CONTENTS

|. Statutory background

2. Factual and procedural background

Argument

l hi Cast no}

review

\ lhe case lack

ational importance, a

is confined in effect to the District and t!

holding at 1

ut

Nas

limited importance

even asa matter of District law

4. Petitioners att

Importance t

his Court deter

Court of Appeal

ae

‘mopt

tify

to the

, OT)

LO how itt) ent

review fall

District of Colum!

matters pertaining

exclu sively to the 1) tr)

nowing ot egreg~iou

gaecision below ]

\. Because this «

CAC lu ively 1x

a

I

errs

rect

tT exe ept ona

} ind 1n tact

al concern the Court

hould defer al

ur below committe ad eoTeviou PTT

is. Far from being bass

‘

nt

a

d

howling that the

nm egregious erro!

rrect

TABLE OF AUTHORITIES

Cac

ASARCO Inc. v. Kadish, 490 U.S. 605 (1989

Atchison v. Di trict of Columbia REA OG ]

(1).C. 1991)

Busby v. Elec. Utils. Emps. Union, 323 |

(1944) (per curiam)

(_onventton ( tr hey ere ndum ( omn Bad

| lecttons A kotha (Co? entfion C fr | 1) A

50 (DC 1979)

{ rventi ta ( fy he ferenaun { 4 ii J) is

J kle An fl A fk th if (¢ OTLvVEe Ti rigor [ ry j i]

\ Yad RRO (T) (* 1981) (er hanc)

District f( olumdia Pac » | f

(14944)

f dred | ACTrOoTT ? j | ~*~

Executive Sandwich Shopp Carr Reality ¢

19 A.2d 724 (D.( aye

hed Power { Ornir ." 4 / '

Fisher v. United Stat 5 | if

(1946

Griffin [/nited Stati 26 |

(194Y

Hessey v. Burden, 61 \.2d 562 (D.( GY

In re Sawyer, 360 U.S. 622 (1959) (plu

INS v. Chadha. 462 U.S. 919 (1983)

Ja kson D.¢ Bd oO] f lection ra / ai

‘, Ct 12749 (20)

am he

Lev v. Dovile. 434 U.S 1(197% ~

Lasse ilrizona, 385 U.S. 458 (1967) .

/ taco v. Camacho, 549 U.S. 483 (2007) 19, 20

Palmore { rite d State 1] | { = B89 (19, } .

Pern [ Southall Rea 116 U: 163

19/4) lL ,

ice | SLOUX ¢ Vi Park Cer toy 1g

| ey (1Q ‘

Wi { fed Ste l f }

f tie} pre rnd at

Const. art. I, § |

District of Columbia Court Ketor

Criminal! Procedure Act of 197 | }

| 4 34 stat. 4

istrict of Columbia Self-G ment

(,overnmental Reorganizati Act, Put

13-198, 87 Stat. 774 (197

if ind Mart ire \ ( t Act | (4

.C. Act 18-70, 56 D at 97 (May

109 \C Law » 56H LD feo 6] ‘

(uM

Religious Freedom 1 ( | Marriage Equa

Amendment Act of 2009, D.C. Act 18-248

L.A at 7 (Jan yy 1) law

1) Re d e VMiar ( { f

D.C. Code (a) (Supp ia

1) { (ode ¢ ib) (S ipp ; }

).C. Code § 1-201.02(a) (Rep OOF

CC Code r 0). (Rey O06

D.C. Cod ' i) (R

V

D.C. Code § 1-203.03(b) (Repl. 2006)......................... 3

D.C. Code § 1-204.01 et seq. (Rep]. 2006 & Supp.

Ee nee 2

D.C. Code § 1-204.04(a) (Repl. 2006).......................4. 2

D.C. Code § 1-204.101(a) (Repl. 2006)................. 38, 25

D.C. Code § 1-204.107 (Repl. 2006)..................... 3, 25

D.C. Code § 1-204.112 (Repl. 2006) ......ccccsceseeseeeeeee- 25

D.C. Code § 1-206.01 (Repl. 2006)......................0008 13

D.C. Code § 1-206.02(a) (Repl. 2006)................... 2, 10

D.C. Code § 1-206.02(c) (Repl. 2006) ................... 2, is

D.C. Code § 1-207.52 (Repl. 2006)..... 2, 11, 12, 16, 26

D.C. Code § 1-1001.16(b)(1) (Repl. 2006) ...... 4,10, 15

D.C. Code § 2-1402.01 et seq. (Repl. 2007 & Supp.

are ae dete een ae 15

D.C. Code § 2-1402.73 (Repl. 2006) ...........................5

D.C. Code § 6-2201 et seq. (Supp. 1978)...................4 5

PF, Se Se Ge, BI oi ieio sec acs esccssssscnceveses 6

D.C. Code § 46-405.01 (Supp. 2010) .......................... 6

Legislative history

H.R. Con. Res. 464, 95th Cong., 92 Stat. 3868

Pe ee ae |. ener 14

ee AEG Ea ae) || Se 14

H.R. 2608, 111th Cong. (2009)...........cccecececceeeeeeeeees 14

es I, Fe ORs CN, Ci iicciceevevnccnscensncctccensens 14

, Te, ELC Ct CI ovis vicnsvsncvess scneccsesecsans a

Ot I B,D CT arin isiseiesiccica ne ndsescsnsceccscames 17

/

PE. Be. BOOT. POO, DOT CITES) ons cncevescvcsccseccscsacsensnesase 25

vl

De 0 sais ovaccatadecnseccpebehareonacereenes 24

Council of the District of Columbia, Committee

on Government Operations, Committee Report

No. 1 on Bill No. 2-317, Initiative, Referendum,

and Recall Procedures Act of 1978 (May 3, 1978)..... 4

Council of the District of Columbia, Committee

on Government Operations, Report on Bull 3-2,

“Initiative, Referendum, and Recall Procedures

Bae GE TT CA. Ly Be ie vnecn sins cvdevccdessccnrsceaseavsss 4

Council of the District of Columbia, Committee

on Public Services and Consumer Affairs, Report

on Bill] 2-179, “The Human Rights Act of 1977”

ie SO or ee 5

Other

PN TU Os css A cass canines ee oes aoaneienbnanpeindty eas 12

2A TOC. Tete, FG aay 6 TT) isis vvcviciccsesssdisvasceiions 3

20 D.C. Mew. 244 Waly 146, LOTE) vscivesscccvssccccdescicsccsses 3

25 D.C. Reg. 10,874 (June 22, 1979) ...............c eee 4

District of Columbia Board of Elections and Ethics,

List of Past Initiatives, http://www.dcboee.org/

popup.asp?url=/pdf_files/pn_640.pdf...........0.0000000... 10

STATEMENT

Petitioners challenge a decision by the District of

Columbia Court of Appeals upholding the validity of

a longstanding local statute. More than three dec-

ades ago, when the Council of the District of Colum-

bia (Council) enacted the legislation that first gave

effect to the electorate’s right to change District law

directly through voter initiatives, the Council prohi-

bited initiatives that would authorize discrimination

proscribed by local law.

The District of Columbia Board of Elections and

Ethics (Board) applied that narrow prohibition in re-

jecting petitioners’ proposed initiative to ban same-

sex marriage. Petitioners contend that the Council

lacked authority to ban discriminatory initiatives,

but both the Superior Court of the District of Colum-

bia and the District of Columbia Court of Appeals

disagreed and affirmed the Board.

1. Statutory background.

a. Home Rule Act. — The Constitution gives Con-

gress authority “[t]o exercise exclusive Legislation”

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

1973, Congress passed the District of Columbia Self-

Government and Governmental Reorganization Act

(Home Rule Act), Pub. L. No. 93-198, 87 Stat. 774

(1973), for purposes including “delegat[ing] certain

legislative powers to the government of the District,”

“srant[ing] [its] inhabitants ... powers of local self-

government,” and “reliev[ing] Congress of the burden

of legislating upon essentially local District matters.”

D.C. Code § 1-201.02(a) (Rep]. 2006).

Title IV of the Home Rule Act is the District

Charter, which establishes the organizational struc-

2

ture of the District government. D.C. Code § 1-

204.01 et seq. (Repl. 2006 & Supp. 2010). The Char-

ter vests the legislative authority granted to the Dis-

trict in the Council. D.C. Code § 1-204.04(a) (Repl.

2006). That authority generally “extend[s] to all

rightful subjects of legislation within the District,”

though ordinary Council acts must be consistent

with the Home Rule Act, including the Charter, and

do not take effect until after a thirty-day layover pe-

riod during which Congress may disapprove them.

D.C. Code §§ 1-203.02, 1-206.02(c) (Repl. 2006).

The Home Rule Act also specifies certain subject

matters on which the Council may not legislate.

D.C. Code § 1-206.02(a) (Repl. 2006). In Section 752,

however, Congress specifically gave the Council cer-

tain authority: “Notwithstanding any other provision

of [the Home Rule Act] or of any other law, the

Council shall have authority to enact any act or reso-

lution with respect to matters involving or relating

to elections in the District.” D.C. Code § 1-207.52

(Repl. 2006).

b. Charter Amendments Act. — When adopted,

the District’s Charter did not provide for the popular

rights of initiative, referendum, and recall. Home

Rule Act, Pub. L. No. 93-198, tit. IV, 87 Stat. at 785—

812. The Charter, however, “may be amended by an

act passed by the Council and ratified by a majority”

of voters. D.C. Code § 1-203.03(a) (Repl. 2006). At

the time, a Charter amendment would take effect if

Congress timely “adopt[ed] a concurrent resolution

. approving such amendment.” D.C. Code § 1-

125(b) (Supp. 1977). Now, after INS v. Chadha, 462

U.S. 919 (1983), an amendment becomes effective

unless Congress timely enacts a joint resolution of

3

disapproval that is transmitted to the President and

becomes law. D.C. Code § 1-203.03(b) (Repl. 2006).

The Council passed the Initiative, Referendum,

and Recall Charter Amendments Act of 1977 (CAA)

on May 17, 1977, during the second Council period

after Home Rule began. 24 D.C. Reg. 199 (July 8,

1977); 25 D.C. Reg. 244 (July 14, 1978). In the CAA,

the Council proposed to amend the Charter to give

the District’s electorate the rights of initiative, refe-

rendum, and recall. 24 D.C. Reg. at 199-206.

The CAA was not self-executing and did not es-

tablish all the particulars of how these rights would

have effect in the District. Convention Ctr. Referen-

dum Comm. v. Bd. of Elections & Ethics (Convention

Ctr. I), 399 A.2d 550, 552—53 (D.C. 1979). In particu-

lar, though it included a definition of the term “initi-

ative” that excluded one particular subject matter, it

did not establish which other subject matters would

be open to initiatives. D.C. Code § 1-204.101(a)

(Repl. 2006) (defining “initiative” as “the process by

which the electors ... may propose laws (except laws

appropriating funds) and present such proposed laws

directly to the registered qualified electors ... for

their approval or disapproval”). Instead, in the CAA,

the Council proposed to give itself the authority and

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

the purpose of [the act] within 180 days of [its] effec-

tive date.” D.C. Code § 1-204.107 (Repl. 2006).

After the District’s electorate ratified the Charter

amendment, Congress passed a concurrent resolu-

tion “approv{[ing] the action of the District of Colum-

bia Council” in passing the CAA. H.R. Con. Res.

464, 95th Cong., 92 Stat. 3868 (1978). It became ef-

fective on March 10, 1978. 25 D.C. Reg. at 244.

4

c. Initiative Procedures Act. — A month after the

CAA became effective, on April 10, 1978, the same,

second Council exercised the authority granted in

the CAA and introduced the Initiative, Referendum,

and Recall Procedures Act of 1978. Council of the

District of Columbia, Committee on Government Op-

erations, Committee Report No. 1 on Bill No. 2-317,

Initiative, Referendum, and Recall Procedures Act of

1978, at 1 (May 3, 1978). AS amended, Bill 2-317 re-

quired the Board to reject an initiative if it would

authorize discrimination based on personal charac-

teristics including sexual orientation.

Bill 2-317 was reintroduced as Bill 3-2 during the

third Council session, in January 1979. Convention

Ctr. I, 399 A.2d at 553; Council of the District of Co-

lumbia, Committee on Government Operations, Re-

port on Bill 3-2, “Initiative, Referendum, and Recall

Procedures Act of 1979,” at 1 (Jan. 31, 1979). The

bill remained the same in relevant respects except

that it referred to the District’s antidiscrimination

law, the Human Rights Act of 1977, rather than it-

self identify what types of discrimination initiatives

could not authorize. Jd. Apps. A and D.

After laying before Congress without disapproval,

the Initiative, Referendum, and Recall Procedures

Act of 1979 (IPA) became law in June 1979. 25 D.C.

Reg. 10,874 (June 22, 1979). The IPA limits what is

a proper subject for an initiative in various ways.

D.C. Code § 1-1001.16(b)(1) (Repl. 2006). In particu-

lar, in what has become known as the Human Rights

Act safeguard or restriction, it directs the Board to

refuse to accept a proposed initiative if it “authoriz-

es, or would have the effect of authorizing, discrimi-

nation prohibited under” the Human Rights Act. 7d.

5

d. Human Rights Act. — Even before Home Rule

began, District of Columbia law provided broad pro-

tections against discrimination. Council of the Dis-

trict of Columbia, Committee on Public Services and

Consumer Affairs, Report on Bill 2-179, “The Human

Rights Act of 1977,” at 2—3 (July 5, 1977). After the

Home Rule Act, the Council was concerned that

these protections would lack the force of law if not

codified. Jd. Thus, during the second Council ses-

sion — the same one in which the CAA was drafted

and enacted and the bill that became the IPA was

introduced — all thirteen Councilmembers unanim-

ously introduced the Human Rights Act of 1977. Id.

at 1. The act served to “underscore the Council’s in-

tent that the elimination of discrimination within

the District ... should have the highest priority.”

Id. at 3 (internal quotation marks omitted). The

Council sought to “affirmatively and forcefully con-

vey to the executive and administrative agencies of

the District Government the importance which the

Council place[d] on vig[o]rous enforcement of its pro-

visions.” Jd. The act addressed various types of dis-

crimination based on categories including sexual

orientation. D.C. Code § 6-2201 et seq. (Supp. 1978).

For nearly forty years, District law has thus pro-

tected gay, lesbian, and bisexual men and women

from discrimination. Today, the Human Rights Act

provides, among other things, that the District gov-

ernment may not “refuse to provide any facility, ser-

vice, program, or benefit to any individual” because

of personal characteristics including sexual orienta-

tion. D.C. Code § 2-1402.73 (Repl. 2006).

e. Jury and Marriage Amendment Act. — On

May 5, 2009, the Council passed the Jury and Mar-

6

riage 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 marriag-

es entered in other jurisdictions. D.C. Code § 46-

405.01 (Supp. 2010). It became law on July 7, 2009,

after Congress did not disapprove it. D.C. Law 18-9,

56 D.C. Reg. 6111 (Aug. 7, 2009).

f. Marriage Equality Act. — The Council enacted

the Religious Freedom and Civil Marriage Equality

Amendment Act of 2009 (Marriage Equality Act) on

December 15, 2009. D.C. Act 18-248, 57 D.C. Reg.

27 (Jan. 1, 2010). This legislation allows same-sex

couples to marry legally in the District. D.C. Code

§ 46-401 (Supp. 2010). After Congress again did not

disapprove, the Marriage Equality Act became law

on March 3, 2010. D.C. Law 18-110, 57 D.C. Reg.

1833 (Mar. 5, 2010).

2. Factual and procedural background.

a. Although this case directly concerns only one

proposal for an initiative, that proposal was one of

three related proposals. While JAMA was laying be-

fore Congress, some of the petitioners here proposed

a referendum on whether the District should recog-

nize same-sex marriages from other jurisdictions.

Pet. App. 130a. The Board found that the proposed

referendum was improper under the Human Rights

Act safeguard, and the Superior Court affirmed.

Pet. App. 130a--34a. There was no appeal.

Petitioners also filed a proposed referendum re-

garding the Marriage Equality Act. Pet. 8n.6. The

Board again rejected the measure because it would

authorize discrimination prohibited by the Human

Rights Act. Pet. 8n.6. The Superior Court and the

7

District of Columbia Court of Appeals refused to en

join the Marriage Equality Act. Pet. App. 9a n.4.

The Chief Justice then denied petitioners’ request

for a stay pending a petition for certiorari because a

grant of certiorari was unlikely. Jackson v. D.C. Bd.

of Elections & Ethics, 130 S. Ct. 1279, 1280 (2010)

(Roberts, C.J., in chambers). While noting that the

argument that the Council lacked authority to enact

the Human Rights Act safeguard has “some force,”

he found a stay unwarranted. Jd. He listed three

reasons: (1) the Court’s policy of “defer|[ring] to the

decisions of the courts of the District of Columbia on

matters of exclusively local concern”; (2) the fact

that the Council enactments at issue were subject to

review, but Congress “chose[] not to act”; and (3) the

opportunity for petitioners again to seek certiorari

on their related initiative request. Jd. (quoting Wha-

len v. United States, 445 U.S. 684, 687 (1980)).

b. On September 1, 2009, petitioners presented

the Board with the proposed initiative that is the

subject of this case. Pet. App. 5a—6a. It would

change local law to declare that “[o]nly marriage be-

tween a man and a woman is valid or recognized in

the District of Columbia.” Pet. App. 6a. As with the

related referenda, the Board found that the proposed

initiative authorizes discrimination proscribed by

the Human Rights Act and so was not a proper sub-

ject for initiative. Pet. App. 135a—46a.

Petitioners sought a writ of mandamus in the

Superior Court. Pet. App. 147a—69a. The Superior

Court granted the motion for summary judgment

filed by the District of Columbia (which had inter-

vened in support of the Board) on January 14, 2010.

Pet. App. 99a—128a. As relevant, it held that the

8

Council acted within its authority in prohibiting in

itiatives and referenda that would violate the Hu-

man Rights Act. Pet. App. 106a—17a.

Sitting en banc, the District of Columbia Court of

Appeals affirmed — the sixth time that a local tri-

bunal in the District has confirmed that the pro-

posed initiative or one of the related referenda was

improper under local law. The court recognized that

the case implicated a number of issues unique to

District governance and ultimately held that “[t]he

Council acted within its authority under the CAA

and the Home Rule Act in enacting the Human

Rights safeguard of the IPA.” Pet. App. 3a, 66a.

As relevant here, the majority reasoned that the

safeguard is not inconsistent with the text of the

CAA, which is ambiguous (Pet. App. 24a—35a); that

the Council’s interpretation of the CAA, as reflected

in the safeguard, is entitled to substantial deference

given how the Council drafted the CAA and the safe-

guard nearly contemporaneously (Pet. App. 35a

40a); that this interpretation is consistent with con-

cerns the Council emphasized at the time it was

crafting the CAA (Pet. App. 40a—49a); and that Sec-

tion 752 of the Home Rule Act allowed the Council to

direct the Board to effectuate that interpretation by

rejecting discriminatory initiatives, notwithstanding

that the Board is an independent District agency

(Pet. App. 49a—55a).

ARGUMENT

The Court should deny the petition for certiorari

for two independent reasons. First, the case con-

cerns an issue of exclusively local concern; no impor-

tant questions of federal law are implicated. Second,

the decision is entirely correct and is far from being

9

based on the type of egregious error necessary to

overcome the deference due to the District of Colum-

bia Court of Appeals on an issue of exclusively local

concern.

I. THIS CASE IS NOT IMPORTANT ENOUGH

TO MERIT REVIEW.

A. The case lacks national importance, as it

is confined in effect to the District and

the holding at issue has limited impor-

tance even as a matter of District law.

The relevant holding of the court of appeals is

modest. Interpreting the right of initiative as uni-

quely defined in District law, the court held merely

that “[t}he Council acted within its authority under

the CAA and the Home Rule Act in enacting the

Human Rights safeguard.” Pet. App. 66a; see Pet.

App. 22a—55a.

That holding does not merit this Court’s review.

The statutes at issue are limited in effect to the Dis-

trict. There is no national analogue to pertinent

provisions of District law, and indeed no federal

right of initiative at all. Further, although some

states have their own initiative rights as defined in

state law, this Court’s resolution of legal issues in

this case would not bind those states, and in any

event none has statutory provisions comparable to

those at issue. The absence of any national impor-

tance is reason enough to deny the petition.

Indeed, the holding at issue has only narrow sig-

nificance even as a matter of District law. The Hu-

man Rights Act safeguard enacted in the IPA is only

one of numerous substantive restrictions on the right

of initiative, and petitioners concede that all the oth-

LO

er restrictions are valid even though many do not

appear in the CAA. Pet’rs C.A. Br. 10 (“The people's

initiative power, thus, is subject to the same legisla

tive restrictions as the D.C. Council, including the

substantive limits on taxing commuters, amending

or repealing acts of Congress, authorizing tall build-

ings, regulating federal and local courts, and consis

tency with the United States Constitution.”); see

D.C. Code §§ 1-203.02, 1-206.02(a) (Repl. 2006);

Convention Ctr. Referendum Comm. v. D.C. Bd. of

Elections & Ethics (Convention Ctr. III), 441 A.2d

889, 897 (D.C. 1981) (en banc). The IPA articulated

only a narrow further prohibition on those initiatives

that “authorize[], or would have the effect of autho-

rizing, discrimination prohibited under” the Human

Rights Act. D.C. Code § 1-1001.16(b)(1) (Repl. 2006).

The right of initiative thus remains broad but not

unlimited. Citizens have filed over a hundred pro

posed initiatives with the Board on topics including

criminal sentencing, historic preservation, term lim-

its, and much more. District of Columbia Board of

Klections and Ethics, List of Past Initiatives,

http://www.dcboee.org/popup.asp?url=/pdf_files/pn_6

40.pdf (last visited Dec. 14, 2010).

History confirms, moreover, that the issues

raised are not important enough to merit review by

this Court. As the dissent below noted, “[a]lthough

the Human Rights Act limitation on the right of in-

itiative has existed for more than thirty years, this is

the first challenge to its validity.” Pet. App. 85a

86a. Certiorari is not warranted for a problem that

does not go “beyond the academic or the episodic.”

Rice v. Sioux City Mem'l Park Cemetery, 349 U.S. 70,

74 (1955).

1]

B. Petitioners’ attempts to show sufficient

importance to justify review fail.

Petitioners make three arguments in attempting

to show a question so important that this Court

should decide it. Each is meritless.

1. Petitioners first say that this case is important

enough to merit review because the court of appeals

misconstrued “congressional enactments,” and “[t]he

centrality and supremacy of congressional enact-

ments here warrant this Court's review.” Pet. 14—

15. As an initial matter, petitioners’ argument is

based on an error of fact. As the majority and dis

sent below agreed, the meaning of the CAA is the

key issue here, and the CAA was an act of the Coun-

cil. Pet. App. 22a—49a, 73a—85a. Congress did not

enact the CAA; rather, it passed a concurrent resolu

tion “approv[ing] the action of the District of Colum-

bia Council” in passing the CAA. H.R. Con. Res.

464, 92 Stat. at 3868 (emphasis added).

Perhaps in recognition of that fact, petitioners

contend that the court below misread Section 752 of

the Home Rule Act, in which Congress gave the

Council “authority to enact any act or resolution

with respect to matters involving or relating to elec-

tions in the District.” Pet. 14; D.C. Code § 1-207.52

(Repl. 2006). Contrary to what petitioners say, how-

ever, the court did not rely on this section as inde-

pendent, “unbounded” authority for the Council to

“impose additional restrictions on (or conceivably

eliminate) the people’s initiative power.” Pet. 11, 20.

The court in fact explicitly “decline[d] to interpret”

Section 752 in such a way that the Council could

render the initiative mght “meaningless,” or “so di

minish [it] as virtually to nullify it.” Pet. App. 52a.

The court thus relied on Section 752 only to over

come the argument that the Council could not order

the Board, an independent agency, to do anything.

Pet. App. 5a, 49a—55a, 66a. As construed by the

court, Section 752 allowed the Council to reject dis-

criminatory initiatives without allowing a vote first,

“notwithstanding the Board’s status as an indepen-

dent agency” under District law. Pet. App. 53a—54a.

In any event, no one doubts that Congress has

supreme legislative authority over the District; the

court below explicitly recognized as much. Pet. App.

10a. So too the court recognized that the District's

Charter functions like a constitution, in that the

Council may not enact ordinary legislation inconsis-

tent with the Charter. Pet. App. 19a—20a, 37a—38a.

The question is not whether Congress’s statutes and

the Charter should control, but rather whether the

Council exceeded its authority as defined in th

statutes and the Charter when it enacted the fiv-

man Rights Act safeguard in the IPA.

Although petitioners contend that the court of

appeals erred in resolving this question, this Court

does not review every case 1n which a petitioner con-

tends that a statute passed by Congress was miscon-

strued. See Sup. Ct. R. 10. To the contrary, the fact

that Congress can legislate anew if it thinks the

Council has exceeded its authority lessens the need

for this Court’s review, as the Chief Justice con-

cluded in rejecting petitioners’ earlier request for a

stay. Jackson, 130 S. Ct. at 1280 (Roberts, C.J., in

chambers) (relying in part on Congress’s “chofice]

not to act”).

2. Petitioners next contend that this case is im

portant because the holding of the court of appeals

13

will lead to increased lobbying of Congress by those

who would seek to legislate by initiative but cannot

due to the Human Rights Act safeguard. Pet. 15—17.

Petitioners err, however, in relying on the Home

Rule Act in suggesting that Congress has expressed

an interest 1n avoiding increased lobbying relating to

the District.

The Home Rule Act indicates that Congress “re-

serves the right, at any time, to exercise its constitu-

tional authority as legislature for the District, by

enacting legislation for the District on any subject.”

D.C. Code § 1-206.01 (Repl. 2006). Further, Con-

gress reserved a role for itself in the local legislative

process, as ordinary Council acts do not become law

until after a thirty-day layover period during which

Congress may disapprove them. D.C. Code § 1-

206.02(c) (Repl. 2006). Although Congress expressed

a desire to “relieve [itself] of the burden of legislating

upon essentially local District matters,” D.C. Code §

1-201.02(a) (Repl. 2006), Congress did so by allowing

the Council to legislate in the first instance but re-

taining its own role in District governance. Lobby-

ing of Congress on District matters is thus consistent

with, not contrary to, Congress’s purposes as ex-

pressed in the Home Rule Act.

Moreover, at most, Congress could expect a trivi-

al increase in lobbying due to the holding of the court

of appeals, especially considered in proportion to the

amount of lobbying Congress currently receives. Pe-

titioners contend that “[rjecent events prove thefir]

point,” Pet. 16, but the opposite is true. As petition-

ers relate, the District’s recent legislation relating to

same-sex marriage has led some in Congress to in-

troduce resolutions or bills to change how District

14

law defines marriage. Pet. 16 & n.7. The draft reso-

lutions they cite, however, are part of the established

Home Rule Act process by which Congress may dis-

approve legislation enacted by the Council. H.J. Res.

54, 111th Cong. (2009); H.J. Res. 72, 111th Cong.

(2010). They show how members of Congress may

become involved in District affairs as an intended

result of the Home Rule Act and are a reason for this

Court to decline review, not to grant it.

Further, Congress’s recent activity has to do with

the politically charged nature of same-sex marriage,

not with the Human Rights Act safeguard itself.

That is made plain by the bills petitioners cite.

Their operative provisions are limited to the topic of

same-sex marriage; none would alter the holding of

the court of appeals that the Human Rights Act sa-

feguard is valid. E.g., H.R. 2608, 111th Cong. (2009);

H.R. 4480, 111th Cong. (2010); S. 2980, 111th Cong.

(2010). That is unsurprising given that petitioners

cite no prior instance in which Congress was lobbied,

or took any activity, because of the Human Rights

Act safeguard. There is no reason to expect that the

application of the Human Rights Act safeguard will

ever again lead to even this level of congressional at-

tention.

3. Petitioners finally argue that the court of ap-

peals in approving the Human Rights Act safeguard

“materially altered the congressionally approved di-

vision of legislative power in the District.” Pet. 17—

20. Their argument in this regard is based on two

principal overstatements.

First, petitioners exaggerate the reach of the sa-

feguard in suggesting that every form of “classifica-

tion” might be suspect under the Human Rights Act

15

and that the statute has “limitless elasticity.” Pet.

18. The Human Rights Act is a “far-reaching prohi-

bition against discrimination of many kinds,” but. it

reaches only defined areas such as employment,

housing, public accommodations, and education.

D.C. Code § 2-1402.01 et seg. (Repl. 2007 & Supp.

2010); Executive Sandwich Shoppe v. Carr Realty

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

Petitioners similarly lack support for the claim

that the Board can deny a proposed initiative merely

on the anticipation that it may authorize discrimina-

tion based on a “future classification[].” Pet. 18. To

the contrary, the Board must “determin[e] whether a

proposed initiative would authorize discrimination of

the type currently prohibited by the District’s human

rights law.” Pet. App. 65a (emphasis added); see

D.C. Code § 1-1001.16(b)(1) (Repl. 2006).

It is thus simply not true that, in petitioners’ ex-

ample, the Human Rights Act safeguard “would like-

ly prevent the people from proposing any statute

that treats homeowners more favorably than ren-

ters, or persons residing in the District more favora-

bly than persons residing outside the District.” Pet.

19 n.9. Indeed, the court below has rejected a simi-

lar attempt to exaggerate the scope of the Human

Rights Act safeguard. Hessey v. Burden, 615 A.2d

562, 579-80 (D.C. 1992). That court can be trusted

to do so again if any proposed initiative is rejected on

an overbroad reading of the Human Rights Act.

That possibility is no reason to grant certiorari now.

Second, petitioners exaggerate in claiming the

reasoning of the court of appeals gives the Council

authority in the future to “erode or even practically

abohsh the people’s initiative right.” Pet. 19. That

16

fear is purely speculative, as the Council in the three

decades after the IPA has never adopted another

substantive limitation. Pet. App. 46a.

In any event, the court’s reasoning could not be

applied to any future attempt to do so. The court re-

hed heavily on the fact that the IPA was adopted

nearly contemporaneously with the CAA. Pet. App.

35a—40a (citing cases including Eldred v. Ashcroft,

537 U.S. 186, 213 (2003)). The court also relied

heavily on the contemporaneity of the CAA and the

Human Rights Act, as well as the unique importance

the Council placed on the latter. Pet. App. 40a—49a.

Those reasons for upholding the Human Rights Act

safeguard would not apply to any future limitation

on the right of initiative. And though petitioners

suggest the court read Section 752 as a broad autho-

rization for future Council action, Pet. 20, that is in-

correct for the reasons above.

4. Petitioners never contend that the Court

should take this case because it involves the mar-

riage rights of same-sex couples. Nor should it do so.

This case has to do only with whether the electorate

in the District should have the ability to pursue bal-

lot measures that would violate District laws prohi-

biting discrimination, rather than go through normal

political processes. Further, even if the electorate

voted on and approved petitioners’ initiative, the

Council could then exercise its normal legislative au-

thority to repeal the resulting law. Pet. App. 97a

(citing Atchison v. District of Columbia, 585 A.2d

150, 155 (D.C. 1991)). If this Court has an interest

in the marriage rights of same-sex couples, it would

be more sensible to await a case addressing what

bearing the Constitution has on the topic.

17

Il. THIS COURT DEFERS TO THE DISTRICT

OF COLUMBIA COURT OF APPEALS ON

MATTERS PERTAINING EXCLUSIVELY TO

THE DISTRICT EXCEPT ON A SHOWING

OF EGREGIOUS ERROR, AND IN FACT

THE DECISION BELOW IS CORRECT.

A. Because this case presents an issue of

exclusively local concern, the Court

should defer absent a showing that the

court below committed egregious error.

1. Long before Congress restructured the Dis-

trict’s local judiciary in the District of Columbia

Court Reform and Criminal Procedure Act of 1970

(Court Reform Act), Pub. L. No. 91-358, 84 Stat. 473,

this Court had adopted a practice of deferring to in-

terpretations of District law, including acts passed

by Congress for the District, by the District’s courts.

This longstanding practice is to refrain from “inter-

fer[ing] with the local rules of law which they fa-

shion, save in exceptional situations where egregious

error has been committed.” Fisher v. United States,

328 U.S. 463, 476 (1946); see, e.g., Griffin v. United

States, 336 U.S. 704, 712-18 (1949); District of Co-

lumbia v. Pace, 320 U.S. 698, 702 (1944).

That practice became all the more appropriate

with the Court Reform Act. “One of [its] primary

purposes ... was to restructure the District’s court

system so that ‘the District will have a court system

comparable to those of the states and other large

municipalities.” Pernell v. Southall Realty, 416 U.S.

363, 367 (1974) (quoting H.R. Rep. No. 91-907, at 23

(1970)). “This new structure plainly contemplates

that the decisions of the District of Columbia Court

of Appeals on matters of local law .. . will be treated

18

by this Court in a manner similar to the way in

which we treat decisions of the highest court of a

State on questions of state law.” Jd. at 368. Thus,

the principle that the Court should not “overrulfe]

the courts of the District on local law matters ‘save

in exceptional situations where egregious error has

been committed” is both “long embedded in practice

and now supported by the clear intent of Congress.”

Id. at 369 (quoting Fisher, 328 U.S. at 476); see Pal-

more v. Uiited States, 411 U.S. 389, 408-10 (1973);

Key v. Doyle, 434 U.S. 59, 64—68 (1977).

2. Petitioners make four arguments why defe-

rence nonetheless is not due here even assuming

that the court below did not commit egregious error.

Each is meritless.

a. Petitioners first suggest that this matter is not

one of exclusively local concern because it affects

“important federal interests.” Pet. 24—26. The Chief

Justice has already indicated otherwise in denying

their related motion for a stay. Jackson, 130 S. Ct.

at 1280 (Roberts, C.J., in chambers). Even were that

not so, petitioners’ claim in this regard is merely

that review is necessary to further the supposed fed-

eral interest in limiting the lobbying Congress rece-

ives regarding District matters. Pet. 24-25. That is

incorrect for the reasons above.

Moreover, petitioners’ suggestion that the defe-

rence due should depend on speculation about how

the case might lead to increased lobbying of Con-

gress, rather than on the case’s subject matter, is in-

consistent with congressional intent. Again, that

“clear intent,” expressed in the Court Reform Act, is

that this Court should not “overrulle] the courts of

the District on local Jaw matters ‘save in exceptional

19

situations where egregious error has been commit-

ted.” Pernell, 416 U.S. at 369. There is no good rea-

son to think Congress would have intended this

Court to decide whether to defer based on an un-

workable rule requiring an assessment of how likely

a case will lead to more lobbying, and if so how much

more. Cf. Fed. Power Comm'n v. S. Cal. Edison Co.,

376 U.S. 205, 215-16 (1964) (interpreting relevant

statutes to make an agency’s “jurisdiction over inter-

state sales of gas or electricity at wholesale” turn on

a “bright line easily ascertained” rather than “a case-

by-case analysis of the impact of state regulation

upon the national interest”).

Indeed, the case on which petitioners rely, Pet.

24—25, supports giving deference here. In Limtiaco

v. Camacho, 549 U.S. 483 (2007), the Court found

that a matter of Guam law was not of “purely local

concern.” Jd. at 491. It did not rely on how the mat-

ter might affect lobbying of Congress or any other

indirect effect on a federal interest. Rather, the

Court relied on the subject matter of the case, as the

debt-hmitation provision at issue directly “pro-

tect[ed] both Guamanians and the United States

from the potential consequences of territorial insol-

vency.” Id. The federal government has an obvious

interest in ensuring that federal dollars entrusted to

a federal enclave in appropriations packages are not

wasted. No such interest is present here.

b. Petitioners next argue that the “construction of

congressional enactments” inherently is not a matter

of local concern. Pet. 25-26. Again, however, the

key issue 1s how to interpret an enactment by the

Council, not by Congress. In any event, their argu-

ment is simply wrong; this Court does defer to the

20

District of Columbia Court of Appeals when it inter-

prets legislation enacted by Congress in its capacity

as supreme iocal legislature. In Whalen, for in-

stance, this Court explained:

(T]his case comes from the District of Colum-

bia Court of Appeals, and the statutes in con-

troversy are Acts of Congress applicable only

within the District of Columbia. In such cases

it has been the practice of the Court to defer to

the decisions of the courts of the District of Co-

lumbia on matters of exclusively local concern.

445 U.S. at 687 (citing Pernell, 416 U.S. at 366; Grif-

fin, 336 U.S. at 717-18; Fisher, 328 U.S. at 476); see

Pace, 320 U.S. at 700—02. The case on which peti-

tioners rely is plainly inapposite, as it deals with a

question of sufficiency of evidence, not statutory con-

struction. Pet. 25-26 (relying on Jn re Sawyer, 360

U.S. 622, 640 (1959) (plurality op.)).

c. On a related point, petitioners contend that de-

ference is unwarranted because the Home Rule Act

is a “congressional organic act.” Pet. 30-32. Again,

that suggestion is inconsistent with the intent of the

Court Reform Act and inapplicable here because this

case primarily concerns the construction of a Council

enactment.

In any event, they cite no case supporting the

proposition that deference is not appropriate when

an organic act enacted by Congress is at issue. Aside

from Limticeco, the cases they cite do not even dis-

cuss deference. Instead, they merely show that the

Court sometimes decides to review cases involving

organic acts where those cases implicate important

federal interests. E.g., ASARCO Inc. v. Kadish, 490

U.S. 605, 633 (1989) (addressing conditions on “the

21

sale or lease of mineral lands granted to the State of

Arizona under ... federal statutes”); Lassen v. Ari-

zona, 385 U.S. 458, 460-61, 469-70 (1967) (similar).

Those cases do not aid petitioners, who fail to show

this case implicates important federal interests.

d. Petitioners finally err in suggesting in passing

that this Court will decline to defer in “exceptional

cases’ regardless of whether the issue is one of ex-

clusively local concern. Pet. 30. The case they cite

actually says that this Court will review the resolu-

tion of local law questions by the District’s local

courts “/o]/nly in exceptional circumstances.” Griffin,

336 U.S. at 718 (quoting Busby v. Elec. Utils. Emps.

Union, 323 U.S. 72, 75 (1944) (per curiam)) (empha-

sis added). The Court did not indicate in Griffin that

it will decline to defer whenever it thinks a case ex-

ceptional in any way, or whenever it thinks the court

below has “gone astray” in any way. Pet. 23. Ra-

ther, consistent with the later-enacted Court Reform

Act and Pernell, the “exceptional situations” in

which the Court will not defer on matters of local

concern are limited to those “where egregious error

has been committed.” 416 U.S. at 369 (quoting

Fisher, 328 U.S. at 476).

B. Far from being based on egregious error,

the decision below is correct.

The decision below is correct. As the court sum-

marized:

(1) resolution of this appeal turns on what leg-

islative authority the Council intended to

share with the people of the District of Co-

lumbia when it passed [the CAA]; (2) the Hu-

man Rights Act safeguard is not inconsistent

with the Council’s intent as conveyed by the

22

language of the CAA; (3) this court owes sub-

stantial deference to the Council’s legislative

interpretation that the Human Rights Act sa-

feguard 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 dis-

crimination prohibited by the Human Rights

Act; [and] (5) the Home Rule Act gave the

Council authority to direct the Board, through

the legislation that the Council passed to im-

plement the CAA, to refuse to accept an initia-

tive that would authorize prohibited discrimi-

nation....

Pet. App. 4a—5a.

Petitioners do not show error, and do not come

close to establishing the type of egregious error ne-

cessary to justify dispensing with the deference nor-

mally due the District of Columbia Court of Appeals

on matters of local law. They rely primarily on the

dissenting opinion below. Pet. 26. That opinion,

however, never suggests that the opinion of the court

is egregiously wrong, just that some judges dlisa-

greed and thus “respectfully dissent[ed].” Pet. App.

66a—98a. Further, though petitioners identify the

“worst” of the supposed errors in the court’s opinion,

Pet. 26, the court was in fact correct on each of these

three points.

First, petitioners argue that the court incorrectly

“supplanted the clear intent of Congress and the

people for the exclusive intent of the Council.” Pet.

26-28. That argument fails both because the court

was correct to focus on the Council and because peti-

23

tioners fail to show that Congress and the voters

who approved the CAA had any different intent.

The Home Rule Act as enacted did not authorize

initiatives but rather gave the legislative power of

the District entirely to the Council. Pet. 10a, 12a.

As the court below recognized, the proper interpreta-

tion of the CAA must account for the fact that it was

an act of the Council:

through section 303 of the Home Rule Act,

Congress gave a broad grant of legislative

power to the Council alone (subject to specified

restrictions ...). In passing the CAA, the

Council had to decide the extent of the legisla-

tive 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 pa-

ramount.

Pet. App. 23a (footnotes omitted).

That reasoning is directly supported by the text

of the Home Rule Act. Section 303 allows for

amendment of the Charter “by an act passed by the

Council and ratified by” the voters “in the referen-

dum held for such ratification.” D.C. Code § 1-125(a)

(Supp. 1977); D.C. Code § 1-203.03(a) (Repl. 2006).

Congress chose to limit the voters’ role in amending

the Charter to one of approving actions of their

elected representatives in the Council, like the CAA.

Section 303 similarly envisions that Congress

would decide whether to approve the Council’s ac-

tion, not substitute its own understanding of a Char

ter amendment for the Council’s. Under the statute

as it existed at the time, the Charter was amended

by an act of the Council ratified by the voters. D.C.

24

Code § 1-125(a) (Supp. 1977). Congress’s later ap-

proval was needed only for the amendment to “take

effect.” D.C. Code § 1-125(b) (Supp. 1977). Further,

Section 303 did not suggest that Congress will itself

legislate by enacting a law amending the Charter.

Rather, it foresaw Congress acting through “a con-

current resolution ... approving [the] amendment.”

Id. Section 303 thus did not contemplate that Con-

gress would legislate anew, see Chadha, 462 U.S. at

945-51, but that Congress would decide whether to

allow the Council’s action to take effect. According:

ly, the concurrent resolution approving the CAA in

dicated merely “[t]hat the Congress approves the ac

tion of the District of Columbia Council” in passing

the act. H.R. Con. Res. 464, 92 Stat. at 3868.

Moreover, even if the court below had been wrong

to think the Council’s intent paramount, petitioners

fail to demonstrate that the voters or Congress had

contrary intent—let alone the “clear” contrary intent

they must claim. Pet. 26. The ballot for the CAA re-

ferendum “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.” Pet.

App. 25a—-26a n.19. Similarly, the Senate report

that petitioners cite indicates that the voters on that

referendum supported an initiative right, but does

not speak to the scope of the right. Pet. 28 (citing S.

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

Second, petitioners raise the related arguments

that the court below erred in relying on a CAA provi-

sion that supposedly “authorize[d|] the Council to

enact only procedural implementing legislation,” and

that the CAA in setting forth one substantive re-

striction on initiatives unambiguously excluded the

adoption of any other. Pet. 28-29. Both arguments

are incorrect.

As an initial matter, nothing in the CAA indi

cated that the Council could implement it only

through “procedural” legislation. That word appears

nowhere in the CAA, or in the passage of legislative

history petitioners cite. Pet. 19; see H.R. Rep. No

95-890, at 17 (1978). To the contrary, the CAA au

thorized the Council to enact whatever legislation it

deemed “necessary to carry out” the purpose of the

CAA. D.C. Code § 1-204.107 (Repl. 2006). Petition

ers do not dispute that, as the court below found, the

Council would deserve substantial deference in de

ciding that the Human Rights Act safeguard was ne

cessary to carry out that purpose, given that the

Council itself drafted the CAA and that it enacted

the safeguard in the IPA nearly contemporaneously

with the CAA and the Human Rights Act itself. Pet

App. 35a-—49a. Petitioners thus are reduced to at

tempting to show that the CAA unambiguously

leaves no room for the safeguard

Petitioners cannot make that showing. They rely

on the definitional section of the CAA, which defines

the term “initiative” as a “process” for “propos[ing]

laws (except laws appropriating funds).” D.C. Code §

1-204.101(a) (Repl. 2006). No provision in the CAA

indicates, however, that all other subject matter:

will be open to initiative. That omission is particu

larly notable given that the part of the CAA relating

to recalls of elected officials contains an operational

section expressly establishing that “[a]ny elected of

ficer of the District of Columbie government (except

the Delegate to Congress for the District of Colum

bia) may be recalled.” D.C. Code § 1-204.112 (Repl!

ZUU6) Moreover, again, everyone agret that van

ous other substantive restrictions apply to the nght

of initiative beyond that relating to “laws appropriat

ing funds.” Petrs C.A. Br. 10; Pet. App. 25a, 73a

74a. The court below was thus correct to find the

CAA ambiguous as to the scope of the initiativ

right. Pet. App. 24a-35a

Third, again, petitioners contend that the court

erred in interpreting Section 752 of the Home Rul:

Act to grant the Council “ill-defined and uncon

trained power. Pet. 29. Again, however, petition

ers simply misread what the court held regarding

Section 752. Like the other assertions of error, thi

one disappears on a proper reading of the well

|

reasoned opinion below

27

CONCLUSION

The petition for a writ of certiorari should be de

nied.

Respectfully submitted,

KENNETH J. MCGHIE PETER J. NICKLES

General Counsel Attorney General

RUDOLPH MCGANN for the District of Columbia

Counsel for the Topp S. KM

District of Columbia Solicitor General

Board of Elections for the District of Columbia

& Ethics Counsel of record

441 4th Street, NW DONNA M. MURASKY

Suite 270 Deputy Solicitor General

Washington, DC 20001 Sracy L. ANDERSON

(202) 727-2194 Assistant Attorney General

rmcgann@dcboee.org Office of the Att’y General

for the District of Columbia

441 4th Street, NW, #600-S

Washington, DC 20001

(202) 724-6609

todd.kim@dc.gov

DECEMBER 17, 2010