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Fenty Challenges to Board of Elections Referendum DecisionToday, Attorney General Linda Singer filed a legal challenge in the Superior Court of the District of Columbia on behalf of Mayor Adrian M. Fenty against the D.C. Board of Elections and Ethics in response to its decision to allow the “Referendum on Certain Provisions of the Public Education Reform Amendment Act of 2007” to move forward. “The plan to reform the school system has been approved by the residents of the District of Columbia through the duly elected City Council of our representative government,” said Mayor Fenty. “After hours and hours of public comment, overwhelming passage by our Council Members, and swift passage through both chambers of Congress, we are ready to take action to better serve the children of this city.” The complaint requested that the Court:
“We challenged the Board of Election and Ethics' decision because, as a matter of law, the proposed measure is not the appropriate subject for referendum,” said Attorney General Singer. “We are confident that the authority of the Mayor, Council and, now, Congress, to transfer governance of the DC Public Schools will be affirmed once again.” The full text of the complaint follows. IN THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA Civil Division DISTRICT OF COLUMBIA, a municipal corporation, 441 4th Street, N.W., Suite 450N, Washington, D.C. 20001, Plaintiff, v. DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, 441 4th Street, N.W., Suite 250N, Washington, D.C. 2001, Defendant Civil Case No. 07-0003761 Judge Lynn Leibovitz Calendar Hearing Wednesday, June 6, 1:30 p.m., Courtroom 312 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF1. Plaintiff District of Columbia (the “District”), through its Office of the Attorney General for the District of Columbia, brings this action against the District of Columbia Board of Elections and Ethics (the “Board”) for declaratory and injunctive relief relating to a proposed referendum, the “Referendum on Certain Provisions of the Public Education Reform Amendment Act of 2007” (“Referendum”), which, among other things, threatens to interfere with the District’s governmental authority to control the allocation of funding for the District’s public schools. Jurisdiction2. This Court has subject matter jurisdiction of this case pursuant to D.C. Official Code § 11-921 (2001), and personal jurisdiction over the Board. The Parties3. The plaintiff in this case is the District, a municipal corporation established by the Congress of the United States (“Congress”) and empowered to sue and be sued. The District is the local government for the territory constituting the permanent seat of the government of the United States. 4. The executive power of the District is vested in its Mayor. The Mayor’s statutory duties include preparing and submitting to the Council of the District of Columbia (“Council”) annual and supplemental budgets for the District government. D.C. Official Code §§ 1-204.22 and 1-204.42. The legislative power granted to the District by the District of Columbia Home Rule Act is vested in the Council, subject to the authority reserved by Congress. D.C. Official Code § 1-204.04. The Council’s statutory duties include adopting, for submission to the President of the United States for transmission by him to Congress, annual and supplemental budgets for the District government. D.C. Official Code § 1-204.46. The Mayor and the members of the Council are the elected officials of the District with responsibility, subject to the authority reserved by Congress, for allocating the District’s government revenues through the budget process. 5. The defendant in this case is the Board, a three-member body created by statute. D.C. Official Code § 1-1001.03. The Board’s duties include conducting elections for the District and other election-related duties. D.C. Official Code § 1-1001.05 (a). The Board’s duties also include overseeing the initiative and referendum process. D.C. Official Code § 1001.16. 6. Except as provided in the District of Columbia Government Comprehensive Merit Personnel Act of 1978, D.C. Official Code § 1-601.01 et seq., the Board, in the performance of its duties, is not “subject to the direction of any nonjudicial officer of the District.” D.C. Official Code § 1-1001.06 (a). The Referendum Process7. Under the District’s Home Rule Act, the referendum process makes it possible for five percent of the registered voters in the District to “suspend acts of the Council of the District of Columbia (except emergency acts, acts levying taxes, or acts appropriating funds for the general operation budget) until such acts have been presented to the registered qualified electors of the District of Columbia for their approval or rejection.” D.C. Official Code § 1-204.101 (b). 8. The referendum process begins with a voter or voters filing a referendum measure with the Board. The measure must include a summary statement of not more than 100 words and must designate “the act or part thereof on which a referendum is desired.” D.C. Official Code § 1-1001.16 (a)(1). 9. The Board must refuse to accept the measure “if the Board finds that it is not a proper subject of . . . referendum” or if the measure “would negate or limit” an act pursuant to the District’s appropriations process. D.C. Official Code § 1-1001.16 (b)(1). 10. In the case of an accepted measure, the Board is responsible for preparing, adopting, and arranging for publication of a proposed summary statement, short title, and legislative form. During the ten calendar days following publication, a voter who objects to the proposed summary statement, short title, and legislative form may seek expedited review by the Superior Court. Absent such judicial review, the proposed summary statement, short title, and legislative form are deemed to be accepted by the Board. D.C. Official Code § 1-1001.16(c)-(e). 11. Once the proposed summary statement, short title, and legislative form are accepted by the Board, the Board provides the proposer with an original petition form to be used in printing petition sheets for circulation. In order to submit the referendum petition to the Board, the proposer will need to secure the signatures of five percent of the registered voters in the District, including five percent of the registered voters in at least five of the eight wards. D.C. Official Code § 1-1001.16 (g)-(i). 12. Before accepting a referendum petition, the Board checks, among other things, whether the petition is “not in the proper form” or “on its face clearly bears an insufficient number of signatures.” However, the Board is not required to certify whether the petition contains the minimum number of “valid” signatures until 30 calendar days after the petition has been accepted. D.C. Official Code § 1-1001.16 (k) and (o). 13. Upon accepting the submitted referendum petition, the Board must notify the President of the Senate and the Speaker of the House, who are then to return the act (or part thereof) to the Chairman of the District of Columbia Council. “No further action may be taken upon such act until after a referendum election is held” or after the Board determines that the petition does not in fact contain the requisite number of signatures. D.C. Official Code §§ 1-1001.16 (m) and 1-204.102 (b)(1). 14. The referendum process applies only to acts that have been passed by the Council but have not yet taken effect following the required period of congressional review. Once an act takes effect, it is no longer subject to referendum. D.C. Official Code § 1-204.102 (b)(2). The Proposed Referendum15. The “Public Education Reform Amendment Act of 2007” (the “Act”) was passed by the Council on April 19, 2007, signed by the Mayor on April 23, 2007, and transmitted to Congress on April 24, 2007. Following the required period of congressional review, the Act is scheduled to become effective on June 12, 2007. 16. The Act comprises eleven titles that, together, represent a new approach to running the District’s public school system, in part by transferring managerial and financial oversight of the District’s schools to the Mayor. The Act was the product of extensive public discussion, including at least 70 hours of hearings in February and March, 2007. 17. On April 24, 2007, the day that the Act was transmitted to Congress, Mary Spencer (the “Proposer”) filed a proposed referendum measure entitled “Referendum on Whether Control of the Public Schools Should Remain with the Board of Education,” which sought to subject the entire Act to the referendum process. 18. On May 8, 2007, the Proposer withdrew this referendum measure and submitted a new, more limited, referendum measure entitled “Referendum on Certain Provisions of the Public Education Reform Amendment Act of 2007” (“Referendum”). On May 11, 2007, the Proposer sought a temporary restraining order from the Superior Court in order to compel the Board to consider the new short title, summary statement, and legislative form at a May 15, 2007 hearing without published notice, rather than at a May 22, 2007 hearing with published notice. The Court denied the requested temporary restraining order. Spencer v. District of Columbia Bd. of Elections and Ethics, Civ. No. 3298-07 (TRO denied May 14, 2007). 19. On May 22, 2007, the Board accepted the proposed Referendum and adopted the following summary statement:
20. Following the Referendum’s summary statement are the three titles of the Act to which the Referendum would apply: Titles I, IX, and X. The Act provides that Title IX “shall apply upon [its] enactment by Congress,” and that Titles I and X “shall apply upon Congressional enactment of Title IX.” 21. Title I of the Act provides that “[t]he Mayor shall govern the public schools in the District of Columbia” and creates a new agency, “District of Columbia Public Schools” (“DCPS”), which is to be administered by a Chancellor serving at the pleasure of the Mayor. Act §§ 103 and 105. Notably, Title I provides for all of the Board of Education’s financial authority and resources to be transferred to the Mayor:
Act § 106(a) (emphasis added). The title further provides that “the Mayor shall submit the budget for DCPS pursuant to section 442 of the Home Rule Act [D.C. Official Code § 1-204.42], along with a plan detailing the allocation of funds to each DCPS public school by program and activity level and comptroller source group.” Act § 104. The Council may modify the Mayor’s budgeted allocations “to individual schools by a 2/3 majority vote of the Council.” 22. Title IX of the Act calls for the repeal of Sections 452 and 495 of the Home Rule Act. Under Section 452 of the Home Rule Act, the Mayor and Council have been prohibited from “specify[ing] the purposes for which . . . funds may be expended or the amount of such funds which may be expended for the various programs under the jurisdiction of the Board of Education.” D.C. Official Code § 1-204.52. Under Section 495 of the Home Rule Act, it is the Board of Education that has authority to “govern the public schools in the District of Columbia” and to “approve an annual [public schools] budget for submission to the Council.” D.C. Official Code § 1-204.95 (a)(4). 23. Consistent with the intent of Title IX, and with the expectations of Titles I and X, the U.S. House of Representatives passed on May 8, 2007, and the U.S. Senate passed on May 22, 2007, an act (H.R. 2080) to repeal Sections 452 and 495 of the Home Rule Act. However, because these amendments to the Home Rule Act were enacted by Congress itself, they will not, if signed into law by the President, be subject to the District’s referendum process. 24. Title X of the Act consists of amendments that would conform various provisions of the District of Columbia Code to the proposed transfer of authority from the Board of Education to the Mayor and the Chancellor. 25. The short title, summary statement, and accompanying text from the Act, as adopted by the Board on May 22, 2007, were published in the Washington Times, a newspaper of general circulation, on May 26, 2007. Consequently, registered voters who object to the short title, summary statement, or legislative form have until June 5, 2007 to seek review in the Superior Court pursuant to D.C. Code § 1-1001.16. Otherwise, the proposed short title, summary statement, and legislative form “shall be deemed to be accepted” by the Board. D.C. Code § 1-1001.16 (e)(2). 26. If and when the Board is deemed to accept the proposed short title, summary statement, and legislative form and provides the Proposer with an original petition form, the Proposer will have until June 11, 2007 – the day before the day that the Act is scheduled to take effect – to secure the number of signatures needed for a petition to place the Referendum on the ballot. 27. If the Proposer submits and the Board accepts, by June 11, 2007, a petition to place the Referendum on the ballot, then the Board is to immediately notify the Act’s custodians in Congress that Titles I, IX, and X must be returned to the Chairman of the District of Columbia Council. If returned, Titles I, IX, and X could only be transmitted back to Congress if (1) the Board determined that the petition does not satisfy the requirements for signatures, or (2) Titles I, IX, and X were subject to a referendum election and were not disapproved by a majority vote. The most likely date for such a referendum election would be August 21, 2007, the date of the District’s next special election. 28. By letter dated May 31, 2007, the Attorney General for the District of Columbia has asked the Board “to reconsider, and rescind, its [May 22, 2007] certification of the Act as a proper subject for a referendum under District law.” To date, the Board has not reconsidered or rescinded its May 22, 2007 decision to accept the Referendum and adopt a summary statement. Need for Relief29. If H.R. 2080 is signed by the President and goes into effect, thereby repealing Sections 452 and 495 of the Home Rule Act, then the Board of Education will no longer have authority, independent of the Mayor, to govern the District’s public schools or to direct and control government spending for the District’s public schools. 30. The Referendum would ask the voters to “approve or reject” the parts of the Act that provide for the transfer, to the Mayor and the Council, of the Board of Education’s authority to direct and control government spending for the District’s public schools, as well as the parts of the Act that provide for the transfer, to a Chancellor serving under the Mayor, of the Board of Education’s authority to govern the public schools. 31. By subjecting Titles I, IX, and X to the referendum process, the Referendum seeks to prevent the transfer to the Mayor and the Council of budgetary and financial authority that, once H.R. 2080 becomes effective, will have to be exercised by the Mayor and the Council if it is to be exercised at all by the District Government. 32. By purporting to stop the transfer of the Board of Education’s budgetary and financial authority to the Mayor and the Council (Act §§ 103 (a) and 104), and by purporting to stop the transfer of certain “appropriations, allocations, and other funds” from the Board of Education to the Mayor (Act § 106), the Referendum threatens to interfere with the discretion of the Mayor and the Council to oversee the District’s public schools and to allocate government funding among public school programs and activities. Such a referendum would suspend an act “appropriating funds” within the meaning of D.C. Official Code § 1-204.101 (b) and, therefore, is not a proper subject for the referendum process. It would also, within the meaning of D.C. Official Code § 1-1001.16, “negate or limit an act of the Council” that was enacted as part of the appropriations process. Finally, to the extent that the Referendum purports to suspend the act of Congress that would repeal Sections 452 and 495 of the Home Rule Act, the Referendum would exceed the scope of the referendum power and be an improper subject of the referendum process. 33. In accepting the Proposer’s referendum measure, giving it a short title, summary statement, and legislative form, and publishing it as a proposed referendum, the Board has
34. The effect of the Board accepting a petition to place the Referendum on the ballot would be to prevent the Act from going into effect for an indeterminable period of time. The Board’s acceptance of the Referendum would result in immediate and continuing uncertainty over whether any Executive branch official appointed by the Mayor has the budgetary and financial authority necessary to provide the public schools with ongoing financial oversight as they prepare for the 2007-2008 academic year. Prayer for ReliefWHEREFORE, the plaintiff requests that this Court: 1. Declare that the Referendum is not a proper subject for the referendum process. 2. Enjoin the Board permanently and, if necessary, temporarily from accepting a petition to place the Referendum on the ballot and from notifying any congressional custodian of the Act that any part or parts of the Act are to be returned to the Chairman of the Council. 3. Grant other declaratory relief and permanent and temporary injunctive relief as may be necessary to prevent the Referendum from having the effect of suspending the Act. 4. Grant such other relief as the Court may determine to be just and proper. Respectfully submitted, LINDA SINGER BENNETT RUSHKOFF (Bar No. 386925) ROBERT T. HILDRUM1 Attorneys for the District of Columbia 1 DC Bar Application pending. Member in good standing of Louisiana Bar. Authorized to provide legal services for the District of Columbia government pursuant to District of Columbia Court of Appeals Rule 49(c)(4). IN THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA Civil Division DISTRICT OF COLUMBIA, a municipal corporation, 441 4th Street, N.W., Suite 450N, Washington, D.C. 20001, Plaintiff, v. DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, 441 4th Street, N.W., Suite 250N, Washington, D.C. 2001, Defendant Civil Case No. 07-0003761 Judge ____ Calendar _____ PLAINTIFF'S CONSENT MOTION FOR AN EMERGENCY STATUS HEARING TO SET AN EXPEDITED SCHEDULEPlaintiff District of Columbia ("District"), through its Office of the Attorney General, moves this Court, with the consent of Defendant District of Columbia Board of Elections and Ethics ("Board"), for an emergency status hearing to set an expedited schedule in this case. As grounds, the District states: 1. The District's Complaint seeks to prevent the Board from accepting a referendum petition to place a referendum entitled "Referendum on Certain Provisions of the Public Education Reform Amendment Act of 2007" (the "Referendum") on the ballot. The legal consequence of the Board's accepting such a referendum petition would be to stop the "Public Education Reform Amendment Act of 2007" ("Act"), which is otherwise scheduled to become effective on June 12, 2007, from going into effect for an indeterminable period of time. That would result in immediate and continuing uncertainty over which District official has the budgetary and financial authority necessary to provide the public schools with ongoing financial oversight as they prepare for the 2007-2008 academic year. 2. The Act was passed by the Council of the District of Columbia on April 19, 2007, signed by the Mayor on April 23, 2007, and transmitted to the U. S. Congress on April 24, 2007. The final day of the required period for congressional review is June 11, 2007, after which the Act is scheduled to become effective. 3. The Referendum asks the voters to approve or reject certain parts of the Act, including Title I. Title I provides, among other things, for all of the Board of Education's financial authority and resources to be transferred to the Mayor. 4. Consistent with the expectations of Title I, the U.S. House of Representatives passed on May 8, 2007, and the U.S. Senate passed on May 22, 2007., an act (H.R. 2080) to repeal Sections 452 and 495 of the Home Rule Act. However, because these amendments to the Home Rule Act were enacted by Congress itself, they will not, if signed into law by the President, be subject to the District's referendum process. 5. If H.R. 2080 is signed by the President and goes into effect, thereby repealing Sections 452 and 495 of the Home Rule Act, then the Board of Education will no longer have authority, independent of the Mayor, to govern the District's public schools or to direct and control government spending for the District's public schools. 6. In its Complaint, the District contends that in accepting the Proposer's referendum measure, giving it a short title, summary statement, and legislative form, and publishing it as a proposed referendum, the Board has
7. The procedural posture of the Referendum is such that on or about June 6, 2007, the eleventh day after the Referendum was published in the Washington Times, a Referendum petition may be circulated to secure the requisite number of signatures. D.C. Official Code § 1- 1001.16 (e)(1)(B) (2001) (ten-day objection period following publication in newspaper of general circulation). The proposer of the Referendum will have until June 11, 2007 - the day before the Act is scheduled to take effect - to secure the number of signatures needed to place the Referendum on the ballot. 8. If the referendum petition is presented to the Board on or before June 11, 2007, and if the Board determines that the petition appears on its face to bear a sufficient number of signatures, the Board will be required to accept the petition. "No further action may be taken upon [the Act] until after a referendum election is held" or after the Board determines that the petition does not in fact contain the requisite number of signatures. D.C. Official Code §§ 1-1001.16 (m) and 1-204.102 (b)(1). 9. The effect of the Board accepting a petition to place the Referendum on the ballot would be to prevent the Act from going into effect for an indeterminable period of time. The Board's acceptance of the Referendum would result in immediate and continuing uncertainty over whether any Executive branch official appointed by the Mayor has the budgetary and financial authority necessary to provide the public schools with ongoing financial oversight. 10. The most likely date for a referendum election would be August 21, 2007, the date of the District's next special election. 11. The District expects that this case will raise only legal issues and that the Court will not have to resolve any factual disputes in order to reach a decision on the merits. 12. Defendant's counsel has been contacted and consents to the relief sought by this motion. WHEREFORE, the District moves this Court to schedule an emergency status hearing either later today or on June 4, 2007, and to set an expedited schedule, as follows:
LINDA SINGER BENNETT RUSHKOFF (Bar No. 386925) ROBERT T. HILDRUM1 Attorneys for the District of Columbia 1 DC Bar Application pending. Member in good standing of Louisiana Bar. Authorized to provide legal services for the District of Columbia government pursuant to District of Columbia Court of Appeals Rule 49(c)(4). MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION1. D.C. Official Code § 1-1001.16 (b)(1) states that "the Board shall refuse to accept the [referendum] measure if the Board finds that it is not a proper subject of... referendum ... under the terms of title IV of the District of Columbia Home Rule Act, or upon any of the following grounds:... (D) The measure presented would negate or limit an act of the Council of the District of Columbia" enacted pursuant to the appropriations process. 2. D.C. Official Code § 1-204.101 (b) states that "[t]he term `referendum' means the process by which the registered qualified electors of the District of Columbia may suspend acts of the Council of the District of Columbia (except emergency acts, acts levying taxes, or acts appropriating funds for the general operating budget) until such acts have been presented to the registered qualified electors of the District of Columbia for their approval or rejection. 3. The referendum process is set forth in D.C. Official Code §§ 1-1001.16 and 1204.102. 4. Cf. District of Columbia Bd. of Elections and Ethics v. District of Columbia, 866 A.2d 788 (D.C. 2005) (interpreting "law appropriating funds" for purposes of the initiative process and finding that initiative appropriated funds and, therefore, was impermissibly adopted through the initiative process). BENNETT RUSHKOFF (Bar No. 386925) CERTIFICATE OF SERVICEI hereby certify that a copy of the foregoing Motion and Memorandum, and the attached proposed Order, has been hand-delivered, on this 1st day of June, 2007 to:
Bennett Rushkoff SUPERIOR COURT OF THE DISTRICT OF COLUMBIA DISTRICT OF COLUMBIA, a municipal corporation, 441 4th Street, N.W., Suite 450N, Washington, D.C. 20001, Plaintiff, v. DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, 441 4th Street, N.W., Suite 250N, Washington, D.C. 2001, Defendant ORDERUpon consideration of Plaintiff's Consent Motion for an Emergency Status Hearing to Set an Expedited Schedule, the Court having heard from the parties in open court this ____ day of June, 2007, and for good cause shown, it is hereby ORDERED that the Consent Motion is hereby GRANTED, and it is FURTHER ORDERED that the parties will adhere to the following schedule:
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