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Jackson v. District of Columbia Board of Elections & Ethics
Citations: 999 A.2d 89; 2010 D.C. App. LEXIS 400; 2010 WL 2771743Docket: 10-CV-20
Court: District of Columbia Court of Appeals; July 15, 2010; District Of Columbia; State Supreme Court
The case revolves around the appeal by Harry R. Jackson, Jr. and others against the District of Columbia Board of Elections and Ethics, questioning the Board's legality in rejecting their proposed initiative measure. The Board's rejection was based on the initiative's potential to authorize discrimination, which contravenes the Human Rights Act. The court's analysis encompasses several key aspects: the distribution of legislative powers in the District of Columbia as defined by the Home Rule Act; the broad legislative authority granted to the District Council, with certain restrictions; the court's obligation to defer to the Council's interpretation of laws that enable citizen legislative power through the initiative process; and the significance of the Human Rights Act as a priority law intended to combat discrimination. The appellants challenge the Council's legislation that mandates the Board to reject initiatives that could lead to discrimination, referred to as the "Human Rights Act safeguard." The case underscores the intricate governmental structure of the District of Columbia under home rule and the interplay between legislative authority and anti-discrimination principles. Appellants argue that the Council exceeded its authority and violated the District of Columbia Charter by implementing a requirement that safeguards the Human Rights Act. They also claim that the proposed "Marriage Initiative of 2009" would not permit prohibited discrimination. The court rejects both arguments, affirming the Superior Court's decisions that the Council acted lawfully in enforcing the safeguard and that the Board appropriately rejected the initiative. The court's reasoning includes several key points: (1) the appeal's resolution hinges on the legislative authority the Council intended to delegate through the Charter Amendments Act (CAA); (2) the Human Rights Act safeguard aligns with the Council's intent as stated in the CAA; (3) the court grants deference to the Council's interpretation that the safeguard reflects the CAA's intent; (4) historical context suggests the Council did not intend to allow initiatives that would enable discrimination against the Human Rights Act; (5) the Home Rule Act empowers the Council to instruct the Board to reject initiatives authorizing prohibited discrimination; and (6) the Board correctly assessed that the proposed initiative would permit such discrimination. The court unanimously supports the last point. The factual background indicates that on May 5, 2009, the Council passed the Jury and Marriage Amendment Act of 2009 (JAMA), which recognized same-sex marriages from other jurisdictions. Appellants filed the proposed initiative on September 1, 2009, aiming to redefine marriage in the District to only recognize unions between a man and a woman. Following a public hearing, the Board rejected the initiative, citing its potential to authorize discrimination under the Human Rights Act. Appellants sought a writ of mandamus to compel the Board to certify the initiative for a ballot, while the District intervened in support of the Board. Subsequently, the Council enacted the Marriage Equality Act, which expanded the definition of marriage to include same-sex couples, effective March 3, 2010. Judges of record, the Clerk of the Superior Court of the District of Columbia, designated deputy clerks, and ordained ministers of recognized religious societies are authorized to celebrate marriages in the District. However, no minister is mandated to solemnize a marriage, as expressed in the preamble of D.C. Act 18-248. The Marriage Equality Act, signed by the Mayor and transmitted to Congress on January 5, 2010, became law on March 3, 2010. By the Act's effective date, the Superior Court had ruled on summary judgment motions, granting the District's motion and dismissing the appellants' claim regarding the Human Rights Act's safeguard provision being an invalid restriction on the right of initiative, affirming that the proposed initiative would enable discrimination. The appeal was subsequently ordered to be heard en banc with briefs filed by amici. The Home Rule Act, enacted by Congress in 1973, grants legislative powers to the District of Columbia Council, which is structured under a tripartite government system. The Act allows the Council to legislate on all subjects consistent with the U.S. Constitution, subject to certain restrictions. Legislative actions by the Council require a majority vote after two readings, and if unvetoed by the Mayor, legislation becomes effective after a thirty-day Congressional layover unless disapproved. Part E of Title VII of the Home Rule Act includes provisions on Council authority over elections and became effective upon ratification of the District Charter by the electorate. Section 752 grants the Council the authority to enact acts or resolutions concerning elections in the District, overriding other laws. The legislative history of the Home Rule Act reveals that Congress initially contemplated allowing District residents to propose legislation through an initiative process, but this was not included in the final Act. Instead, Section 303 allows for Charter amendments through acts passed by the Council and ratified by the electorate via referendum. On May 17, 1977, the Council passed the Initiative, Referendum, and Recall Charter Amendment Act of 1977 (CAA), which was ratified by voters on November 7, 1977, and became effective on March 10, 1978. The CAA defines "initiative" as the process enabling electors to propose laws, excluding appropriations, which would be presented for voter approval. Although the CAA granted a broad right to use initiatives and referendums, it required the Council to establish implementing acts within 180 days. Subsequently, on April 10, 1978, the Council introduced Bill 2-317 to implement these provisions, which was later reintroduced as Bill 3-2 and approved as the Initiative, Referendum, and Recall Procedures Act of 1979 (IPA), incorporating a human rights safeguard, and became law on June 7, 1979. In 1973, the pre-Home Rule District of Columbia Council established the Human Rights Law (Title 34 of the District of Columbia Rules and Regulations), declaring that every individual should have equal opportunities in all life aspects and aiming to eliminate discrimination based on various factors including race, religion, and sexual orientation. The Council emphasized its intention to legislate broadly under its police powers to protect individuals' rights and property. Concerns about the enforceability of these regulations led to the re-enactment of the Human Rights Law as the Human Rights Act of 1977, introduced by Bill 2-179, with no substantive changes made. The Council aimed to solidify the Act's status as part of the District of Columbia Code and prioritized the enforcement of anti-discrimination measures. The Human Rights Act, adopted on July 26, 1977, has remained largely unchanged, only amended to add more protected classes, and continues to assert that all individuals should have equal opportunities across various domains. Courts have recognized the Act's intention as a robust and flexible prohibition against discrimination. Appellants argue that the Board's refusal to accept their proposed initiative infringes on citizens' rights under the District of Columbia Charter to engage in the initiative process regarding the definition of marriage. They claim that the voters, through the Citizens' Initiative Act (CAA), granted themselves the right to propose initiatives with the sole limitation of not appropriating funds, which they assert the Marriage Initiative of 2009 does not do. Appellants maintain that the CAA allows the Council only to establish procedural rules for the initiative process and does not empower it to impose additional substantive restrictions. They contend that the Council exceeded its authority by enacting the Initiative Procedures Act (IPA) and including a safeguard from the Human Rights Act, which they argue conflicts with the broad right of initiative established by the CAA. Conversely, the District asserts that the CAA provides the Council with the discretion to determine necessary actions for implementing its purpose without judicial review. The District claims that the lack of explicit limitations in the CAA grants the Council broader authority than merely ensuring procedural adequacy. It views the question of the necessity of the Human Rights Act safeguard as a political question not subject to judicial determination. The District also points out that the Council enacted the CAA and the IPA in the same session, indicating an understanding of the CAA’s intent. It argues for a deferential review of the Council's actions, supported by section 752 of the Home Rule Act, which provides broad authority to legislate on election-related matters. In conclusion, the analysis suggests that while citizens have a broad right of initiative, this right must align with the Council's intent when it delegated legislative authority to the electorate, which differs from initiatives in other jurisdictions. In various jurisdictions, legislative powers are typically conferred by the people to the legislature, while retaining overall legislative authority. In the District of Columbia, however, section 303 of the Home Rule Act grants exclusive legislative power to the Council, with specific restrictions outlined in Title VI. The Council's decision on the extent of legislative power shared with the public during the passage of the Clean Air Act (CAA) is crucial for resolving the current issue. The intent of the Council, when enacting the CAA, must be discerned primarily from the statute’s language, particularly the definition of "initiative," which allows voters to propose laws but excludes appropriations. Appellants argue that the language limiting initiatives to non-funding laws indicates a singular restriction. However, the broader context shows that the CAA must be interpreted alongside the Home Rule Act, which imposes constitutional and statutory limits on the Council's authority. Consequently, the initiative language does not encompass all restrictions, and the safeguard provided by the Human Rights Act is compatible with this ambiguity. Additionally, section 1-204.107 of the CAA empowers the Council to enact necessary measures to fulfill the act's purpose, differing from earlier proposals that specified how petitions should be managed. This indicates a broader interpretation of the Council's authority under the CAA compared to previous drafts. The CAA's language stating it is "necessary to carry out the purpose" contrasts with congressional bills related to the Home Rule Act, which explicitly created a right to initiative and assigned regulatory authority to the Board, not the elected Council. Section 303(c) of the Home Rule Act provided a model for the Council to enact procedural rules for initiatives and referenda. The Board of Elections and Ethics is responsible for creating rules for petition distribution and election conduct. The phrase "necessary to carry out the purpose" in section 1-204.107 is notably vague, lacking explicit limitations on the Council's authority, which suggests an intention for broader discretion. Similar language in other statutes has permitted substantive regulations, indicating that the CAA could allow the Council to impose additional restrictions on the initiative process. Appellants argue that the CAA's purpose was solely to establish the right of initiative and referendum, limiting the Council to merely facilitating this process. However, they do not provide evidence for this narrow interpretation. The CAA Report characterizes these processes as tools for ensuring accountability of public officials, suggesting the Council could rationally determine that restricting initiatives aimed at discrimination aligns with this broader accountability purpose. The Human Rights Law Report emphasizes that the role of the reviewing body is not to challenge the Council's judgment regarding the connection between the CAA (Citizen's Initiative Act) and the Human Rights Act safeguard. The necessity of the safeguard does not require it to be indispensable for the initiative and referendum processes. It suffices that the safeguard is not evidently contrary to the CAA's purpose. The text of the CAA does not support the appellants' claim of a violation by the Council in enacting the safeguard; instead, it indicates the Council acted consistently with its intent. The report further asserts that the Council's interpretation of the CAA through the IPA (Initiative and Referenda Procedures Act) should be given significant deference. The contemporaneous nature of the IPA's enactment, by the same Council that passed the CAA, reinforces this deference. While the reviewing body can reject any IPA provision that conflicts with the CAA, when the CAA allows for multiple interpretations, the Council's legislative interpretation in the IPA carries substantial weight. A presumption exists that the Human Rights Act safeguard enacted by the Council under the IPA aligns with the CAA. During the IPA's debate, both the Corporation Counsel and the General Counsel indicated that the Council lacked the power to impose the safeguard, yet the Council and Mayor, as elected representatives, disagreed. Their insights from extensive discussions surrounding the CAA informed the analysis. The Supreme Court's ruling in Myers illustrates the importance of legislative intent; it acknowledged the First Congress's interpretation of the Constitution, which established a precedent accepted over time despite initial legal doubts. Similarly, the Council's interpretation of the CAA within the IPA, despite conflicting legal opinions, is upheld due to its alignment with the Council's priorities. The District of Columbia Charter serves as a constitutional analogy, underscoring the need to consider the context and motivations that shaped the Council's legislative actions regarding the CAA. Following the passage of the original Civil Rights Act (CAA) in May 1977, the Council promptly pursued the re-enactment of the Human Rights Law as the Human Rights Act of 1977, which was passed on July 26, 1977. This re-enactment aimed to emphasize the Council's commitment to vigorous enforcement of the law and to ensure it was regarded as a priority, complementing other District laws. The Council clarified its intention for the Human Rights Law to enhance every District licensing and benefit scheme, stating that establishments found to discriminate could face license suspensions or revocations. The Council's actions were influenced by judicial decisions that had questioned the District government's authority to enforce certain remedies under the Human Rights Law, which had been established by a previous council with limited powers. During discussions, Councilmembers expressed their desire to strengthen the law to eliminate discrimination in all forms. The Council's strong stance on human rights was evident prior to the amendment of the CAA presented to voters in November 1977. The historical context and the assertive language used in the re-enactment suggest that the Council did not intend for individuals to bypass the human rights law via the initiative process. Instead, the Council viewed the Human Rights Law as a supplement to the CAA, imposing limitations on initiatives and referendums to prevent the establishment of policies that favor discrimination. The Council interprets the Citizens’ Initiative Act (CAA) as allowing citizens to propose initiatives and referenda only if they align with the District's human rights law. The broad mandate given to the Council suggests that the Initiative and Referendum Act (IPA) should explicitly incorporate human rights protections. Concluding otherwise would imply the Council intended to grant initiative rights that could undermine the objectives of the Human Rights Act, which the Council prioritized. This implied safeguard does not diminish the electorate's right to propose laws, as the Council has not attempted to impose additional legislative restrictions on this right since the IPA's passage over thirty years ago. The legislative history shows that the Council was influenced by the Supreme Court's decision in Reitman, which struck down Proposition 14 for violating the Equal Protection Clause, as it effectively encouraged racial discrimination. The Council Committee recognized that accepting initiatives permitting discrimination would implicate the District in condoning such actions. Consequently, the Committee recommended that the IPA include a provision preventing the acceptance of initiatives or referenda that would authorize discrimination, aligning with the Council's commitment to uphold the objectives of the Human Rights Act. Section 752 explicitly grants the Council the authority to direct the Board to refuse initiatives that could lead to discriminatory outcomes. The Council is not required to permit initiatives that would authorize discrimination prohibited by the Human Rights Act to be put to voters, nor to repeal such initiatives after voter approval or wait for legal challenges. The Council, under the IPA, has the authority to refuse initiatives and referenda that would endorse prohibited discrimination. This authority is derived from section 752 of the Home Rule Act, which grants the Council the power to legislate on election matters without being limited by other laws. Section 752 is a definitive provision that cannot be amended by the Council or District voters, maintaining its governance over District affairs. Additionally, this section's "notwithstanding" clause emphasizes its precedence over conflicting laws, reinforcing Congress's intent to empower the Council to legislate substantively regarding elections. The interpretation of the Council's authority should not negate the initiative right conferred by the Home Rule Act, as this would undermine the legislative framework intended by Congress. The aim is to harmonize section 752 with the Charter Amendments Act (CAA), ensuring both provisions are given effect in a meaningful way. The Home Rule Act established the Board as an independent agency under the Election Act, which prohibits non-judicial officers from directing the Board's duties. However, section 752 grants the Council authority to enact laws directing the Board regarding election matters. The Council utilized this authority to impose a Human Rights Act safeguard, requiring the Board to reject initiative measures that could authorize prohibited discrimination. This interpretation aligns with the Council's reading of the initiative rights under the Charter Amendment Act (CAA). Legal precedent supports the Council's power to mandate pre-election reviews of proposed initiatives' subject matters, as established in prior case law. The appellants argue that their proposed "Marriage Initiative of 2009" does not conflict with the Human Rights Act safeguards, citing a court decision (Dean v. District of Columbia) that they believe limits the Human Rights Act's applicability to marital relationships. The Board contends that the proposed initiative, which defines marriage as exclusively between a man and a woman, would invalidate existing same-sex marriage rights and responsibilities. In its November 17, 2009 Memorandum Opinion, the Board distinguished the Dean case, asserting that the Human Rights Act must be interpreted broadly to combat various forms of discrimination, particularly as the legal landscape regarding same-sex marriage has evolved since the Dean decision. Couples recognized under JAMA are entitled to the same marriage benefits as heterosexual couples, and denying these benefits based on sexual orientation is now considered a "proscribed form of discrimination." The Council's intent is clear, having passed JAMA with a 12-1 vote. The Initiative attempts to deny recognition to JAMA marriages based on sexual orientation, which the Board, along with the District's Attorney General and General Counsel, agrees would authorize discrimination prohibited by the Human Rights Act (HRA) and is thus not a valid subject for initiative. The Board's interpretation aligns with the Dean case, which established that the HRA analysis has limited relevance today. In Dean, a same-sex couple claimed discrimination for being denied a marriage license, which was deemed a violation of the HRA. The court found that historical legislative intent has consistently defined "marriage" as a union between opposite-sex couples, noting that no recent changes or legislative actions indicated an intention to recognize same-sex marriages. The court concluded that the term "marriage" remains limited to heterosexual unions, supported by dictionary definitions and similar cases from other jurisdictions. The Dean court also highlighted that denying equal enjoyment of public accommodations based on sexual orientation constituted unlawful discrimination under the HRA. The court examined the argument that the refusal of the Marriage License Bureau to issue marriage licenses to same-sex couples unlawfully denies these individuals equal opportunity in marriage, a significant aspect of life. The court tentatively accepted that the Marriage License Bureau qualifies as a "place of public accommodation" under the Human Rights Act, which prohibits discrimination. It acknowledged the Council's intent for the Act to serve as a comprehensive anti-discrimination measure covering sex and sexual orientation. However, the court concluded that the Council did not aim to redefine "marriage" through the Act, as there was no legislative indication of such an intent. The court held that since marriage is traditionally defined as a union between opposite sexes, the Bureau's adherence to this definition does not constitute discrimination under the Act. Despite this conclusion, the court noted significant changes in the legal landscape, with the Council's later enactment of the Marriage Equality Act and other jurisdictions recognizing same-sex marriage. The court considered whether a proposed initiative that would deny recognition and associated benefits to same-sex marriages would violate the Human Rights Act. It determined that the initiative would indeed authorize discrimination based on sexual orientation, as it would require District agencies to deny services to same-sex couples, effectively stripping them of recognized civil rights and disproportionately impacting gay and lesbian residents' ability to participate fully in society. The interpretation of the Human Rights Act within the Initiative Procedures Act (IPA) raises the question of whether the Board should assess initiatives based on the Human Rights Act of 1977 or the current version at the time of evaluation. Statutory construction principles suggest that referring to a specific statute incorporates its provisions as they existed at adoption unless there is a clear legislative intent to include future amendments. However, the legislative history of the IPA indicates that the reference to the Human Rights Act of 1977 was meant to ensure that the Board evaluates initiatives against the current standards of discrimination, not just those from 1977. Documentation from the Committee on Government Operations shows that Bill 2-317 aimed to prohibit various forms of discrimination, and subsequent amendments clarified that the Board could not accept petitions that authorized discrimination as defined by the Human Rights Act. These changes were deemed technical and maintained the original prohibitive intent of the legislation. Therefore, the IPA's mention of the Human Rights Act of 1977 signifies the Council's intention for the Board to enforce modern anti-discrimination standards, rather than being restricted to outdated provisions. The Council's aim was to create a flexible regulatory framework capable of adapting to evolving social contexts and addressing future discrimination issues effectively. Requiring adherence to an outdated law would contradict the legislative intent to protect civil and human rights comprehensively. The Council of the District of Columbia acted within its authority under the Clean Air Act (CAA) and the Home Rule Act by enacting a Human Rights safeguard within the Initiative, Referendum, and Recall Procedures Act (IPA). The Council directed the Board of Elections not to accept initiatives that would contradict this safeguard. The proposed initiative by the appellants aimed to define marriage strictly as between a man and a woman, which was determined to authorize discrimination against the Human Rights Act. Consequently, the Board lawfully refused to accept the initiative, leading to the Superior Court's judgment being upheld. Dissenting opinions emphasize the legislative authority granted to the voters and the Council under the Home Rule Act, noting that the right to initiative was established in 1978. The IPA included procedures for initiatives but also imposed limits on their subject matter, specifically prohibiting initiatives that would authorize discrimination as defined by the Human Rights Act. The dissenting judges argue against the validity of the Human Rights Act limitation within the IPA, suggesting that had they prevailed, the legality of the Board's refusal to accept the proposed initiative would not have been assessed. However, they ultimately acknowledge that the proposed initiative would indeed authorize discrimination prohibited by the amended Human Rights Act. The factual background includes previous unsuccessful attempts by appellant Jackson to suspend acts related to same-sex marriage, which were rejected by the Board based on the Human Rights Act, leading to subsequent litigation. The District of Columbia recognizes marriages legally entered into in other jurisdictions between two same-sex persons, as established by D.C. Code 46-405.01. The Religious Freedom and Civil Marriage Equality Amendment Act of 2009, effective March 3, 2010, allows same-sex couples to marry in D.C. On September 1, 2009, appellants submitted the Marriage Initiative of 2009, which was rejected by the Board on the grounds that it would violate the Human Rights Act (HRA) by stripping same-sex couples of recognized marriage rights, rendering the initiative unacceptable. Following this, appellants sought a review and a writ of mandamus from the Superior Court, which permitted D.C. to intervene and ultimately granted summary judgment in favor of the Board and D.C., leading to the current appeal. The Constitution grants Congress the authority to legislate for the District of Columbia, but the District of Columbia Self Government and Governmental Reorganization Act (Home Rule Act) of 1973 delegated some legislative powers to the D.C. Council while retaining Congress's ultimate authority. The Home Rule Act allows for local self-government but imposes limitations on the Council's legislative power, such as prohibiting property taxes on U.S. property and altering D.C. court jurisdiction or repealing certain Acts of Congress. Legislation from the Council must align with both the U.S. Constitution and the Home Rule Act, which together function as a constitutional framework for the District. The Home Rule Act outlines a process for amending the District of Columbia's Charter, necessitating cooperation among the Council, District voters, and Congress. Amendments can be made through an act by the Council, which must then be ratified by a majority of registered voters in a referendum. Previously, Congress was required to adopt a concurrent resolution for amendments to take effect; however, the current process allows amendments to take effect unless Congress disapproves them via a joint resolution during a review period. The rights of initiative, referendum, and recall were established in 1978 through the Charter Amendments Act, making them equivalent to constitutional amendments and not subject to ordinary legislative changes. These rights are to be interpreted liberally, imposing only clear and compelling limitations. An explicit limitation prohibits initiatives proposing laws that appropriate funds, with further limitations found within the Home Rule Act that delineate the scope of legislative power. The Human Rights Act was adopted by the District of Columbia Council in 1973, expanding on previous civil rights legislation. It was re-enacted in 1977 as The Human Rights Act to ensure its regulatory measures had statutory force, drawing from a long history of anti-discrimination regulations in the District. The Human Rights Act aims to eliminate discrimination in the District of Columbia based solely on individual merit, prohibiting such discrimination in public accommodations, employment, education, and housing since its original enactment in 1977. The Act has been amended, notably in 1997, to emphasize its broad scope, which extends beyond Title VII of federal law. The law protects against discrimination based on federally recognized characteristics—race, color, sex, religion, age, national origin, and disability—as well as additional categories not covered by federal law, including sexual orientation, marital status, and family responsibilities. The Human Rights Act is viewed as a vital legal framework against various forms of discrimination and is intended to be vigorously enforced by District government officials. Although significant, the Act is not entrenched in the local constitution, allowing the Council to amend it through standard legislative processes. Concerns regarding potential discrimination initiatives arose during the Council's implementation of rights for initiative, referendum, and recall, as the 1979 procedures did not specify how these rights were to be executed. The Council was instructed to adopt necessary acts for implementation within 180 days of the Amendment's effective date, and no initiative or referendum petitions could be submitted until after October 1, 1978. The interpretation of these provisions will influence the outcome of related appeals. Determining which acts are necessary to fulfill the purpose of the Charter Amendment Act (CAA) involves policy decisions that should be left to the Council, though this Court disagrees with that perspective. In the case Convention Center I, the court previously ruled that the Charter Amendments were not self-executing and recognized Section 8 as a legislative mandate for the Council to create enabling and implementing legislation. The Council was expected to complete necessary preparations for administering an initiative election within 180 days prior to the Amendment's effective date of October 1. Section 8 does not expand the Council's authority or delegate additional Congressional power. Comparisons to procedural rules or the Constitution’s "necessary and proper" clause are inapt, as the intent of Section 8 is clear when viewed in context—it directs the Council to enact laws that facilitate the rights of initiative and referendum. The CAA comprises two amendments, with Charter Amendment No. 1 establishing the rights of initiative and referendum and requiring the Council to enact necessary legislation within a specified timeframe. This language serves as a directive for timely implementation, not a means to restrict the rights established through the Charter amendment process. The Initiative, Referendum and Recall Procedures Act of 1979 established requirements for submitting measures, including format and processing procedures, as mandated by D.C.Code 1-1001.16. The Board is required to reject petitions that do not conform to these requirements or that address subjects outside the scope permitted by the District of Columbia Home Rule Act. Notably, the Council added a restriction disallowing initiatives that would authorize discrimination as defined by the Human Rights Act, a limitation not present in the Charter or Home Rule Act. Despite concerns about potential misuse of initiative rights, legal counsel, including the Corporation Counsel, cautioned that the Council lacked authority to impose such restrictions. They emphasized that any substantive limitations on voter rights, established by Charter Amendment No. 1, are void unless enacted through the Charter Amendment Procedure or by Congress. The legitimacy of the Council's interpretation of its powers is questioned, asserting that the judiciary holds the ultimate authority to interpret the law, as established in landmark cases. The rights associated with initiatives and referenda are embedded in the Charter, which cannot be altered by the Council's legislation. Legislation that implements the Charter Amendments must not conflict with those Amendments, and the Council cannot amend them through the enactment of the Initiative, Referendum and Recall Procedures Act (IPA), as amendments must follow the procedures outlined in D.C. Code § 1-203.03(a). The District argues for abstention based on the Supreme Court's decision in Baker v. Carr, claiming that the anti-discrimination provisions of the IPA have been successfully functioning for decades. However, this is the first challenge to the validity of the Human Rights Act's limitation on initiative rights. The court emphasizes that it cannot dismiss a legitimate controversy regarding the limits of constitutional authority. It recognizes the need to balance deference to the Council with its duty to oversee actions that may exceed delegated authority. The court has previously determined the scope of the Council's authority under the Home Rule Act, ruling on various instances where the Council's actions either exceeded or aligned with its powers. It has also considered the right of initiative and has consistently rejected arguments that the adoption of this right violated the District's Charter. The District's suggestion for abstention is not adequately justified, especially since many Council members who supported the Charter Amendments also approved the IPA. The second Council lacked the authority to amend the Charter through ordinary legislation; however, its interpretation of the CAA via the IPA is given presumptive validity. The cases cited by the District do not support the argument that the Council's actions constituted an authoritative interpretation of the CAA. There is no evidence that the Councilmembers who enacted the IPA believed they were interpreting the CAA or had any unique insight into its purpose. The District's reliance on Eldred v. Ashcroft is misplaced, as that case involved a long-standing congressional practice, whereas the provision in question has existed for only about thirty years without any demonstrated consistent legislative practice or approval from voters or Congress. The lack of challenges to the Human Rights Act limitation over three decades does not equate to a routine application. The Myers decision reinforces that the legislature cannot unilaterally define its authority, and any legislative interpretation's weight relies on the executive and judicial branches' attitudes and the presence of opportunities for judicial objection. The weight of statutory acts is diminished when relevant instances are rare or have not occurred. In the case of Myers, the acceptance of a decision by the First Congress on a significant governmental question was viewed as definitive, a situation not mirrored in the current context. The absence of a clear rationale for not including a Human Rights Act limitation in the Charter Amendments Act (CAA) suggests it was an afterthought, prompted by concerns raised after the Charter's amendment. Legislative history indicates that after public hearings on the Initiative and Referendum Act (IPA), there was considerable support for an amendment to prevent initiatives that promote discrimination, which the Council adopted. However, the Council did not claim authority under the CAA for this limitation; they referenced external authority, particularly the Supreme Court decision in Reitman v. Mulkey and their own election oversight powers, neither of which granted them the authority to amend the Charter. The Reitman case addressed a California constitutional provision enacted by voters aimed at protecting private discrimination rights, which the California Supreme Court found invalid due to its violation of the Fourteenth Amendment's equal protection clause. The U.S. Supreme Court upheld this conclusion, emphasizing that the provision created a broad right to discriminate, effectively immune from any state regulation. The California Supreme Court had also dismissed attempts to remove the proposition from the ballot, suggesting such matters should be evaluated post-election. The excerpt addresses the limitations of the Council's authority under D.C. Code § 1-207.52 (2006), known as Section 752 of the Home Rule Act, regarding the initiative process. It emphasizes that Section 752 does not grant the Council the power to amend the Charter or exclude certain subject matters from the electorate's consideration. The right of initiative was not established until after Section 752 was enacted, suggesting that Congress did not intend for it to encompass initiatives. The excerpt argues that allowing voters to exercise legislative power through initiatives constitutes a further delegation of Congress’s authority, necessitating a Charter amendment to both create and limit such rights. It points out that the Council's authority over elections does not include the ability to restrict the initiative process without a Charter amendment, as any limitations would alter the fundamental right of initiative. Lastly, it raises concerns about the implications of unchecked Council power to impose additional restrictions on initiatives or eliminate the right entirely, asserting that limitations on Charter rights must undergo the formal amendment process rather than be enacted through ordinary legislation. The excerpt argues that the Citizens' Initiative Act (CAA) is designed to allow the electorate to vote on various topics, but not those deemed unsuitable for direct democracy. It finds no textual or historical support for the idea that certain topics are inherently inappropriate for voter initiatives. The document criticizes the District’s assertion regarding a "Human Rights Act limitation," stating it lacks clear criteria for determining which topics fall under this category, leading to unpredictable expansions of this exception to the right of initiative. Despite concerns that the electorate may act against minority interests, the text highlights existing checks and balances that protect against majoritarian tyranny, such as the potential for congressional disapproval of initiatives and the legislative authority of the Council to amend or repeal enacted measures. Additionally, it emphasizes that courts can invalidate unconstitutional measures. The excerpt asserts that the right of initiative in the District of Columbia operates within a framework of republican governance, where the separation of powers is essential. It acknowledges the importance of the Human Rights Act and its values of non-discrimination and inclusion but insists that these should be upheld within the legal limits established by the Home Rule Act and the Charter. Ultimately, it concludes that the Council overstepped its authority by imposing restrictions on the right of initiative and expresses dissent regarding this limitation. No religious official, such as a priest, imam, rabbi, or minister, is obligated to solemnize marriages against their beliefs. Each religious society maintains exclusive authority over its theological doctrines and marriage practices. Furthermore, religious societies and their affiliated nonprofit organizations are not required to provide services or accommodations for marriage-related events that conflict with their beliefs. A refusal to provide such services cannot result in civil claims or penalties against these organizations. The legal framework restricts the Council's legislative powers in specific areas, as outlined in the Home Rule Act. The Council cannot enact legislation that contradicts this Act, approve budgets exceeding estimated revenues, impose taxes on U.S. property, or manage matters concerning U.S. courts or the U.S. Attorney's Office. Certain provisions related to the establishment of local governance structures are not amendable except by Congress. The legislative process for Charter amendments has been settled to allow the Council to initiate changes independently. Section 1-204.101(b) defines a "referendum" as a process allowing registered voters in the District of Columbia to suspend Council acts (excluding emergency acts, tax levies, and budget appropriations) until voters can approve or reject them. An example is provided where in September 1982, citizens approved an initiative mandating severe minimum sentences for offenses committed with firearms. The pre-Home Rule Council acknowledged that failure to provide equal opportunities threatens both individual rights and the foundations of democracy, prompting the enactment of the Human Rights Law, which was based on earlier police regulations aimed at protecting public welfare. The Human Rights Law was deemed a valid exercise of the pre-Home Rule Council’s police power, addressing the harmful effects of illegal discrimination. Shortly after the original Community Action Act (CAA) was passed, the Council reinforced the Human Rights Law with Bill 2-179, sponsored by all Council members. Appellants argue that voters in thirty-one states have engaged in initiatives regarding marriage definitions and assert that D.C. citizens should also have the right to vote on this significant issue. They claim that through the ratification of the CAA, citizens have gained co-equal legislative power with the D.C. Council. Appellants reference the case Atchison v. District of Columbia, which established that the power of initiative aligns with the legislative powers of the council. However, Atchison and the related case Convention Ctr. III addressed whether citizens could propose initiatives of an administrative nature, concluding that such initiatives are not permissible. This indicates that the electorate's legislative power cannot exceed that of the Council. The current issue concerns whether the Council, via the Human Rights Act, intended to limit citizens' legislative power compared to that of the Council under the Home Rule Act. A judicial maxim emphasizes that general statements in opinions should be interpreted within their specific context, cautioning against their use in future cases. The previous rulings noted that without express limitations, the electorate's initiative power is equivalent to that of the legislature, yet the present case raises the question of potential limitations. Additionally, it is noted that the right to initiative is not federally guaranteed and is instead a state-created right, which Congress can modify or revoke. Therefore, the current case presents a distinct challenge compared to previous judicial matters. The Council's interpretation of its authority under the Home Rule Act is respected, but it does not carry more weight than the inherent persuasiveness of specific positions taken. Appellants argue that the ballot language approved by voters reflects the "plain" meaning of the Charter Amendment Act (CAA), but this argument is rejected. While the ballot language did not indicate limitations on the initiative process, it also failed to inform voters about restrictions on appropriations, legislative authority under the Home Rule Act, or constitutional limitations. The ballot only authorized a process for 5% of registered voters to propose or repeal laws without clarifying the scope of this initiative power. The Superior Court addressed appellants' claims regarding the exclusion of subject matter from the initiative process, referencing the interpretive canon "expressio unius est exclusio alterius." However, it clarified that this canon serves as an aid to construction rather than a definitive rule. The court emphasized that the canon requires identifying a series of terms that imply exclusion, which does not apply here. Section 1-204.101 explicitly lists subject areas—such as appropriations and tax levies—that are off-limits to direct democracy, indicating that the initiative process is not unrestricted. The court also noted that the absence of implementing legislation means the CAA lacks essential safeguards against potential abuse. During the second reading of the CAA, Council Chair Tucker assured members that safeguards to protect citizens from special interests, and potential limits on referendum expenditures, would be addressed in subsequent implementing legislation. Appellants reference cases from other jurisdictions indicating that legislatures can only impose procedural rules, not substantive restrictions, when directed to implement initiative or referendum provisions. However, these cases are deemed unhelpful as they do not involve the broad "necessary to carry out the purpose" language of the CAA, which is distinct from self-executing state constitutional provisions. Evidence suggests that the Council chose to circumvent the question of additional restrictions on initiative and referendum rights by establishing a legislative interpretation of the Charter amendment. The language in section 1-204.107 mirrors the "Necessary and Proper" clause of the U.S. Constitution, which has been interpreted by the Supreme Court as broadening congressional power, allowing for legislation that extends beyond specifically enumerated powers. The "Necessary and Proper" clause cannot be interpreted as limiting Congress's powers or its discretion to implement constitutional mandates. The Council's decision to adopt implementing rules for the CAA itself, rather than delegating this responsibility to the Board, indicates an understanding that establishing necessary rules involves balancing policy considerations suited to legislative rather than administrative processes. The Board originally sought broad rulemaking authority in the CAA, yet the enacted version emphasizes the Council's role in determining necessary actions to fulfill the CAA's purpose, highlighting a significant difference in language. The dissenting opinion references the CAA's preamble to assert clarity of purpose but neglects the preamble of the Human Rights Act, which embodies a broader legislative intent to eliminate discrimination and harmonize with other laws. Legislative history from the Home Rule Act suggests that the initiative, referendum, and recall mechanisms were intended to enhance accountability among elected officials. The Council's reference to Justice Douglas's concurrence in Reitman v. Mulkey underscores the importance of protecting minorities against majoritarian governance. During the Council debate on the first reading of the Initiative, Referendum, and Recall Procedures Act (IPA), Councilmember Wilson raised concerns about the government's ability to make decisions for the public while avoiding accusations of disenfranchisement. The discussion highlights that the Council believed the Human Rights Act safeguard within the IPA was necessary to fulfill the goals of the CAA. A lack of a rational connection between the CAA's purpose and the Human Rights Act safeguard could indicate that the IPA's provision is outside the CAA’s authority. The District's claim that the issue is a nonjusticiable political question due to the absence of a judicially manageable standard was rejected. The text elaborates on the "Necessary and Proper" Clause, indicating that "necessary" encompasses more than absolute necessity; it refers to means that are convenient or useful for the execution of governmental powers essential for national welfare. Ten of the thirteen Council members who voted for the CAA were also present when the IPA was enacted, with support from an eleventh member, Marion Barry, who later signed the IPA into law. Furthermore, references are made to the case of Winters v. Ridley, emphasizing that the intent of the original Council can be inferred from the actions and resolutions of subsequent Council members, which, while not definitive, provide substantial evidence of the original intent. Heckler v. Turner emphasizes the legislative intent behind the enactment of the "5 percent" language of the CAA, highlighting that the Office of Corporation Counsel deemed any substantive restrictions on voter rights as void under the CAA. Legal opinions from 1978 affirm that the Human Rights Act introduced requirements not present in the original Charter amendment, thus attempting to indirectly amend the Charter, rendering such attempts ineffective. Some Council members questioned the compatibility of IPA restrictions on budget-related referenda with the CAA, but there is no indication that the Human Rights Act was seen as contravening the CAA. The discussion references the historical context of the Articles of Confederation and the Constitutional Convention, illustrating the intention to establish a strong Executive. The First Congress's legislative construction supported the President’s removal power over Senate-confirmed appointees, reflecting the framers' objectives. The Human Rights Act was signed into law on September 28, 1977, and includes provisions allowing the Office to refer findings of probable cause against permit holders to relevant agencies for appropriate action. A violation of provisions by a permit or license holder in D.C. leads the Commission to refer the matter to the appropriate agency if the respondent fails to rectify the discriminatory practice. This determination serves as prima facie evidence that the respondent is not acting in the public interest, prompting the agency to issue an order requiring the holder or applicant to justify why their privileges should not be revoked or restricted. The document cites case law, including Mendota Apartments v. District of Columbia Commission on Human Rights, which upheld a cease and desist order for racial discrimination in housing but noted the Commission's lack of authority to award damages for emotional distress. Additional cases illustrate the enforcement of anti-discrimination regulations, such as Filippo v. Real Estate Commission, where a broker's license was suspended for discriminatory pricing. The text also poses rhetorical questions regarding the absence of human rights restrictions in the Comprehensive Anti-Discrimination Act (CAA), referencing legal interpretations that suggest the omission may be seen as unnecessary rather than indicative of a lack of power. The Council's decision, made within and slightly beyond the 180-day legislative period defined in the CAA, indicates that no further limitations were identified as necessary to fulfill the CAA's objectives, suggesting that additional restrictions may not be required. The Council recognized that any post-election repeal of a discriminatory measure would not mitigate their involvement, as the Board's participation and the use of District funds to place such an initiative on the ballot would contradict the values of the Human Rights Act. The Human Rights Law was initially established as a police-power measure aimed at safeguarding the wellbeing of individuals and property within Washington, D.C. The Council had valid grounds to foresee that an initiative permitting discrimination could jeopardize public peace and safety, referencing the historical example of Dade County, Florida, where a successful repeal of a sexual orientation discrimination ordinance in 1977 led to significant violence and unrest. Additionally, Chief Justice Roberts noted that the IPA, which incorporated a safeguard from the Human Rights Act, remained unchallenged by Congress for thirty legislative days, indicating legislative approval and weighing against the argument that the IPA conflicted with the CAA. Furthermore, it was affirmed that initiatives and referenda are considered related to elections as per the Home Rule Act, which allows the Council to call special elections for advisory votes on propositions they wish to act upon, with relevant regulations detailed in the D.C. Code. The initiative and referendum processes are recognized as elections under section 752, which grants the Council authority to legislate regarding these processes. However, the Council cannot delegate legislative powers to District citizens without adhering to the Charter-amending procedures in the Home Rule Act. Prior to the adoption of the Charter Amendment Act (CAA), proposed citizen laws were not considered election-related matters. Once the rights to initiative and referendum were established, the Council could legislate on related elections using section 752. This section originated as section 742 in House Bill H.R. 9056 and was included in H.R. 9682 as section 752. Senate hearings indicated that Congress was advised to leave operational details, such as voting eligibility issues, to the Council and to make only necessary adjustments to the Election Act. A dissenting commentary on H.R. 9682 suggested that section 752 might allow local government exemptions from the Hatch Act for District employees. Initially, section 742 stated that the Council had jurisdiction over election-related matters, implying its authority over the independent Board. Furthermore, it has not been argued that limitations on initiative subjects infringe upon First Amendment rights, as the amendment does not guarantee the right to legislate on specific topics. Relevant cases affirm that legislative topics can be withdrawn from the initiative process without violating free speech protections. The court in Skrzypczak v. Kauger, 92 F.3d 1050 (10th Cir. 1996), held that a state supreme court's decision to remove an abortion initiative from the ballot did not infringe on a voter's First Amendment rights. Voters retain the freedom to express their views on legalized abortion and the constitutionality of initiative petition reviews, but the First Amendment does not guarantee the right to place a specific proposition on the ballot, as there is no law establishing such a right. The Council, through the Human Rights Act, aims to uphold a non-discrimination policy that may prevent certain measures from appearing on the ballot. Citizens dissatisfied with this policy can seek remedies through the electoral process, as the Council is accountable to voters who can elect officials with differing views. The Board's assessment indicated that the proposed initiative would allow discrimination based on sexual orientation by denying marriage recognition, which is contrary to the Human Rights Act. The Act defines "places of public accommodation" broadly to include all District agencies, emphasizing that public entities inherently qualify under this definition. An amendment to the Human Rights Act in 2002 clarified that it is unlawful for District government agencies to discriminate against individuals based on various personal characteristics, including race, gender identity, and sexual orientation. This amendment is viewed as a clarification of existing laws, reinforcing the importance of non-discrimination as a priority since the Home Rule Council's initial enactment. The District government is expected to lead in upholding the Human Rights Act, particularly regarding discrimination complaints against police officers. Executive Order 94-132, issued by then-Mayor Sharon Pratt Kelly, emphasizes that all District government agencies must adhere to the Human Rights Act, prohibiting any discrimination in the provision of services. The concept of disparate impact discrimination has been integrated into the Human Rights Act, meaning practices that disproportionately affect a protected class, even without intent to discriminate, are unlawful unless justified by a valid, nondiscriminatory reason. The right of initiative allows District residents to propose laws, excluding financial appropriations, which can then be voted on by the electorate. If approved by a majority, these initiatives become law after a Congressional review period. The proponents of the 2009 Marriage Initiative include several religious leaders. The term 'referendum' refers to the process allowing District voters to suspend Council acts until they can vote on them, with certain exceptions. The courts have previously declined to stay the implementation of the Religious Freedom and Civil Marriage Equality Amendment Act of 2009, and despite the enactment of same-sex marriage laws, the appeal regarding the initiative’s ability to amend or repeal legislation remains relevant. Legislative power, as outlined in D.C. Code, is subject to specific provisions. The legislative power of the District is defined to encompass all lawful subjects of legislation consistent with the U.S. Constitution, subject to limitations imposed by Article I, Section 10, which restricts states from engaging in certain actions such as entering treaties or coining money. The Council has established explicit limitations regarding the right of referendum, although the case at hand does not challenge these limitations on initiative rights. Various court cases highlight the District's legislative history concerning anti-discrimination laws in areas such as public accommodations and housing, with significant amendments made to the Human Rights Act over the years, including the addition of protected categories. A recent proposed bill aims to enhance protections for victims of domestic violence and related crimes. Effective implementation of the Charter Amendments Act (CAA) was mandated by an October 1, 1978 deadline, with the Council required to adopt necessary acts to implement these changes and restrict initiative or referendum submissions until that date. Congress retains the authority to enact laws deemed necessary for executing its powers. Supporters of an initiative must submit five printed or typewritten copies of the full measure text, a summary of no more than 100 words, and a short title to the Board. Upon acceptance within 20 days, the Board prepares the proposed measure in legislative form and adopts the summary and title at a public meeting, notifying the proposer of the exact language within five days. Additionally, the Board is required to publish this information in the District of Columbia Register within the same timeframe. Legal advisories from both the Office of Corporation Counsel and the General Counsel of the Council highlighted limitations regarding the subjects of initiatives, indicating that restrictions not included in the Charter Amendment must follow the Charter Amendment procedure. Specifically, the Corporation Counsel noted that additional restrictions could not be enacted by the Council but only through the Charter Amendment. The General Counsel pointed out that the antidiscrimination provision added a requirement not found in the Charter amendment, thus attempting to indirectly amend it, which would be legally ineffective. In the case of Hessey III, it was determined that a proposed initiative did not violate the Human Rights Act (HRA), as none of the parties contested the validity of the HRA limitation on initiatives. Conversely, in Committee for Voluntary Prayer v. Wimberly, the court did not assess the HRA violation because it deemed the initiative unconstitutional. The document also reflects that the presence of long-standing statutes does not equate to acceptance of questioned powers. Lastly, since amendments to the Charter required Congressional approval, the court must consider Congressional intent alongside the Council's intent in adopting implementing legislation related to the initiative right. No inference of congressional approval can be drawn from Congress's failure to disapprove the Initiative Proposal Act (IPA) containing the Human Rights Act limitation on the right of initiative. This notion is weak, especially in cases where the legislation contradicts the Organic Act, as established in *Springer v. Government of the Philippine Islands* and *Clayton v. People of the Territory of Utah*. The absence of congressional action should not be interpreted as an endorsement of legislative authority to enact laws that conflict with congressional acts. Additionally, the Council initially approved the Charter Amendments Act prior to the Human Rights Act's passage, which was signed by the Mayor on September 28, 1977. However, the Council amended the Charter Amendments Act shortly before it went to voters on November 8, 1977. The Human Rights Act included a provision stating that no government entity could restrict an individual's right to choose whom to sell, lease, or rent property, specifically applying to residential property and excluding state-owned real estate. The majority's reasoning raises concerns about the Council's potential to limit electoral participation by selectively accepting petitions from candidates, despite their qualifications.