IN THE DISTRICT OF COLUMBIA COURT OF APPEALS. No. 14-cv-222 PAUL ZUKERBERG,

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1 IN THE DISTRICT OF COLUMBIA COURT OF APPEALS No. 14-cv-222 PAUL ZUKERBERG, v. Appellant/Plaintiff, DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, and COUNCIL OF THE DISTRICT OF COLUMBIA, Appellees/Defendants. On Appeal from the D.C. Superior Court BRIEF AMICI CURIAE DC APPLESEED CENTER FOR LAW AND JUSTICE, DC VOTE, ET AL., IN SUPPORT OF APPELLANT AND REVERSAL OF THE DECISION BELOW Richard P. Bress (D.C. Bar No ) Stephen P. Barry Andrew J. Robinson Jessica K. Thibodeau LATHAM & WATKINS LLP th Street, NW Suite 1000 Washington, DC (202) Counsel to Amicus DC Appleseed Center for Law & Justice Walter A. Smith, Jr. DC APPLESEED CENTER FOR LAW & JUSTICE th Street, NW Suite 510 Washington, DC (202) Counsel to Amici DC Appleseed Center for Law & Justice, DC Vote, et al.

2 TABLE OF CONTENTS Page TABLE OF AUTHORITIES... ii INTEREST, IDENTITY, AND SOURCE OF AUTHORITY TO FILE OF AMICUS CURIAE...1 SUMMARY OF ARGUMENT...3 ARGUMENT...5 I. THE SUPERIOR COURT FAILED TO COMPLY WITH THIS COURT S PRECEDENT ON STATUTORY INTERPRETATION...5 II. THE AMENDMENT S LANGUAGE MUST BE INTERPRETED CONSISTENTLY WITH THE VOTERS INTENT THAT THE FIRST ELECTION OCCUR IN III. IV. THE COUNCIL S INTERPRETATION, AS INDICATED BY THE OCTOBER 2013 LEGISLATION, IS NOT ENTITLED TO DEFERENCE...16 THERE IS STILL TIME FOR THIS COURT TO ORDER THE COUNCIL TO PUT THE ELECTION BACK ON TRACK FOR CONCLUSION...20 i

3 TABLE OF AUTHORITIES CASES Page(s) Backman v. United States, 516 A.2d 923 (D.C. 1986)...11 Calik v. Kongable, 990 P.2d 1055 (Ariz. 1999)...14 Carter v. Seaboard Finance Co., 203 P.2d 758 (Cal. 1949)...11 City of Spokane v. Taxpayers of Spokane, 758 P.2d 480 (Wash. 1988)...10 Common Cause v. State, 455 A.2d 1 (Me. 1983)...14, 15 Convention Center Referendum Committee v. District of Columbia Board of Elections & Ethics, 441 A.2d 889 (D.C. 1981)...10 Dobyns v. United States, 30 A.3d 155 ( D.C. 2011)...5 Farnell v. State, 679 So. 2d 662 (Ala. 1996)...13 Grayson v. AT&T Corp., 15 A.3d 219 ( D.C )...6 Hessey v. District of Columbia Board of Elections & Ethics, 601 A.2d 3 (D.C. 1991)...10, 11 Hi-Starr, Inc. v. Washington State Liquor Control Board, 722 P.2d 808 (Wash. 1986)...11 Jackson v. District of Columbia Board of Election & Ethics, 999 A.2d 89 (D.C. 2010)...16, 17 Lee v. District of Columbia, 22 A.3d 734 (D.C. 2011)...5 Lemon v. United States, 564 A.2d 1368 (D.C. 1989)...10, 11 ii

4 Page(s) Local 21, International Federation of Professional & Technical Engineers v. City of San Francisco, 90 Cal. Rptr. 2d 186 (Ct. App. 1999)...5, 6 Lynch v. State, 145 P.2d 265 (Wash. 1944)...10, 12 Malone v. Shyne, 937 So. 2d 343 (La. 2006)...15 People v. Hartley, 67 Cal. Rptr. 3d 667 (Ct. App. 2007)...13 Peoples Drug Stores, Inc. v. District of Columbia, 470 A.2d 751 (D.C. 1983)...6 Thomas v. Bailey, 595 P.2d 1 (Alaska 1979)...10 United Parcel Service v. District of Columbia Department of Employment Services, 834 A.2d 868 (D.C. 2003)...6 United States v. Goldenberg, 168 U.S. 95 (1897)...10 Varela v. Hi-Lo Powered Stirrups, Inc., 424 A.2d 61 (D.C. 1980)...10 Watson v. Fair Political Practices Commission, 266 Cal. Rptr. 408 (Ct. App. 1990)...11, 13 Winter v. Shafter, 26 N.W.2d 893 (Mich. 1947)...10 STATUTES D.C. Code (a)...7, 9 D.C. Code , 9 iii

5 OTHER AUTHORITIES Page(s) Council of the District of Columbia: Fourteenth Legislative Meeting, D.C. Office of Cable Television, Committee of the Whole (July 10, 2013), available at htm...18 Council of the District of Columbia: Mark-Up Committee on the Judiciary and Public Safety, D.C. Office of Cable Television (June 28, 2013), available at Council of the District of Columbia: Thirty-Seventh Legislative Meeting, D.C. Office of Cable Television, Public Hearing, Committee of the Whole (June 1, 2010), available at June_2010_week_1.shtm...8 Council of the District of Columbia: Twenty-Sixth Legislative Meeting, D.C. Office of Cable Television, Public Hearing, Committee of the Whole (Feb. 2, 2010), available at February_2010_week_1.shtm...7, 17 District of Columbia Board of Elections and Ethics, Notice of Publication for Proposed Charter Amendment IV: The Elected Attorney General Charter Amendment, 57 D.C. Reg (July 16, 2010)...12 District of Columbia Board of Elections and Ethics, Proposed Charter Amendment IV, 57 D.C. Reg (Aug. 13, 2010)...2 Election Code Conforming Emergency Amendment Act of 2013, D.C. Act , 60 D.C. Reg. 11,799 (Aug. 16, 2013)...9 Ethan J. Leib, Interpreting Statutes Passed Through Referendums, 7 Election L.J. 49 (2008)...19 iv

6 INTEREST, IDENTITY, AND SOURCE OF AUTHORITY TO FILE OF AMICUS CURIAE Pursuant to Rule 29(a) of the District of Columbia Court of Appeals, Amici DC Appleseed Center for Law and Justice, DC Vote, et al., respectfully submit this Amici Curiae Brief, with the consent of all parties, in support of Appellant Paul Zukerberg and urge reversal of the decision below. Amici are the DC Appleseed Center for Law and Justice ( DC Appleseed ); DC Vote; D.C. for Democracy ( DCFD ); the Nonprofit Roundtable of Greater Washington; and Senator Paul Strauss, Senator Michael D. Brown, and Representative Nate Bennett-Fleming ( District of Columbia Statehood Delegation ). DC Appleseed is a nonprofit organization dedicated to solving pressing public policy problems facing the District of Columbia ( District or D.C. ) area. DC Vote is a national organization dedicated to securing voting representation and full equality for the disenfranchised residents of the District. DCFD is the District s largest unaligned progressive group of activists, community leaders, and everyday voters working for positive change in our local government and full citizenship rights through statehood for the people of Washington, D.C. The Nonprofit Roundtable of Greater Washington is an alliance of more than 300 nonprofits and community partners building the strength, visibility, and influence of the nonprofit sector to improve the quality of life for all in the greater Washington region. The District of Columbia Statehood Delegation is charged under District law with advising the District on matters of public policy relating to achieving statehood. The issue before the Court is whether the Elected Attorney General Charter Amendment ( Charter Amendment or Amendment ), ratified by 76% of District voters in a 2010 referendum, entitles voters to elect their Attorney General for the first time beginning in 2014, as 1

7 the Council of the District of Columbia ( D.C. Council or Council ) and the voters intended, or whether instead the voters right to elect their Attorney General has no effective date and can be postponed indefinitely by the Council. This issue is of great interest to all Amici given their history of supporting greater democracy and voting rights for District residents. 1 For more than 200 years, District residents have been denied vital democratic rights that other residents of the United States enjoy. These include not just the lack of voting representation in Congress, but also the right of District residents freely to enact their own local laws, pass and spend their own local budget, and elect their own local public officials. Amici and others have long worked to remedy this injustice through litigation, public education, and pleas to Congress to enact legislation giving District residents greater rights of selfdetermination. More recently, Amici have welcomed and supported a new strategy to advance that cause through locally passed initiatives, including the 2010 Charter Amendment referendum at issue in this appeal. By ratifying the Charter Amendment through popular vote, the people not only played a direct role in the legislative process, but used that process to grant themselves greater self-government and allow the District to join 43 states in which the people elect their Attorney General. This was democracy at its very core. Amici emphatically believe that the Council s action postponing the election until at least 2018 illegally undermines the will of the people, is a step backwards for democracy, and is inconsistent with the requirement of the Home Rule Charter ( Charter ). Amici find it both 1 In addition to those interests shared by all Amici, DC Appleseed s interest also arises from its advocacy in support of the 2010 referendum, and, following that referendum, its advocacy for ensuring that the voters decision is respected. Senator Strauss s interest also arises from being treasurer of the Yes on Amendment Eight committee, which advocated for ratification of the Charter Amendment in the referendum. DCFD s membership also overwhelmingly approved the endorsement of and organizational advocacy for the 2010 Referendum, as it appeared in the D.C. Register. District of Columbia Board of Elections and Ethics, Proposed Charter Amendment IV, 57 D.C. Reg (Aug. 13, 2010). 2

8 disappointing and ironic that, just at the moment when Congress is not challenging Charter amendments that advance D.C. democracy, it is the D.C. Council that has acted to thwart this progress. We, therefore, seek to demonstrate the unlawfulness of the Council s actions in order to restore the will of the people. SUMMARY OF ARGUMENT In November 2010, District voters were presented with the opportunity to ratify an A mendment to the Charter making the District s Attorney General elected by the people, rather than appointed by the Mayor. In deciding this issue, the ballot statement prepared by the D.C. Board of Elections and Ethics (the Board ) read: If voters approve of this amendment and the U.S. Congress does not reject the measure, residents of the District of Columbia would begin voting for the Attorney General in JA 93. The voters ratified this Amendment by a 76% majority. This was only the fourth time since Congress granted Home Rule to the District in 1973 that residents exercised their right to alter the fundamental structure of their local government by amending the Charter. Critically, the voters action was not merely an expression of approval of the Charter Amendment, but was a legally necessary step in enacting that Amendment. Nevertheless, on October 1, 2013, contrary to the intent of the voters and contrary to its own intent in 2010 when it authorized the referendum the Council overrode the Charter Amendment by voting 7-6 to delay the election until at least See Elected Attorney General Implementation and Legal Service Establishment Act of 2013 ( Postponement Act ), JA The Superior Court concluded that, because the Charter Amendment provided that the Attorney General election would be after January 1, 2014, and because 2018 is after January 1, 2014, it necessarily followed that such postponement was valid. JA 550. That analysis is incomplete and erroneous for two reasons. 3

9 First, the Superior Court erred by examining the after January 1, 2014 language in total isolation, divorced from its context, purpose, and history. An appropriately informed review makes clear that the Charter Amendment requires the first election to be held in The Superior Court s ruling is incorrect and contrary to this Court s approach to statutory interpretation. Second, the Superior Court erred by refusing to consider what the voters actually approved. The court failed to make any attempt to harmonize the language of the Charter Amendment with the categorical language of the referendum stating that the first Attorney General election would be in The law takes account of the voters intent, and indeed requires that the Charter Amendment be interpreted, if reasonably possible, to be consistent with what the voters were told they were ratifying. Here, only one construction of the Amendment is consistent with both its language (approved by the Council) and the language of the referendum (approved by the voters): that the first election take place in The Council had no power unilaterally to depart from the Charter s command and postpone the initial election until Its attempt to do so was unlawful, is not entitled to deference, and had no legal effect. Amici urge the Court to order the Council to act promptly to put the election back on track for this year, as the Charter requires. 4

10 ARGUMENT I. THE SUPERIOR COURT FAILED TO COMPLY WITH THIS COURT S PRECEDENT ON STATUTORY INTERPRETATION The Superior Court took an exceedingly narrow view of the issue in this case. Rather than interpreting the language at issue in the Charter Amendment in light of its legislative history and the overarching statutory scheme, the Superior Court read the words in isolation. It thus concluded erroneously that based on the ordinary meaning of the words after January 1, 2014, the 2013 Act [postponing the election until at least 2018] does not conflict with the 2010 Charter amendment. JA 550. In other words, after saying that 2018 is after January 1, 2014, the court went no further. But, by construing after literally to mean any time after, the Superior Court s decision permits the Council, by simple legislation, to postpone the election of the Attorney General far into the future; indeed, effectively to prevent it from ever happening. This outcome thwarts the will of the electorate and disregards clear precedent from this Court. When interpreting a statute, this Court has held that the language addressing the issue in question must be read in light of the statute taken as a whole. Lee v. District of Columbia, 22 A.3d 734, 739 (D.C. 2011). As Mr. Zukerberg notes, Appellant s Br. at 9-10, language alone will not control when it is subject to multiple interpretations, when a literal interpretation would produce absurd results, or when the legislative history or statutory scheme demonstrates ambiguities that may not have been apparent from the text itself. Dobyns v. United States, 30 A.3d 155, 159 (D.C. 2011); see also Local 21, Int l Fed n of Prof l & Technical Eng rs v. City of San Francisco, 90 Cal. Rptr. 2d 186, 193 (Ct. App. 1999) (explaining that the plain meaning rule does not prohibit a court from determining whether the literal meaning of a charter provision comports with its purpose ). Further, [i]n construing a provision adopted by the voters[,]... 5

11 [l]iteral construction should not prevail if it is contrary to the voters intent apparent in the provision. Local 21, 90 Cal. Rptr. 2d at 193 (citations omitted). A reading of the Charter Amendment that permits after January 1, 2014 to mean at any point in time after January 1, 2014 would lead to a plainly absurd result it would allow the Council, by ordinary legislation, to postpone the Attorney General election to 2018, 2022, 2026, or any date thereafter as long as it aligns with the Mayoral election. This simply cannot be. As this Court has recognized, the literal meaning of a statute will not be followed when it produces absurd results. Peoples Drug Stores, Inc. v. District of Columbia, 470 A.2d 751, 754 (D.C. 1983). The Council s own Deputy General Counsel made the same point in his July 2, 2013 memorandum to the Council in which he concluded that the Council did not have the legal authority to delay the election to He wrote: [r]eading section 435 as authorizing the Council, within its discretion, to schedule the year of the first election would be tantamount to authorizing the Council to delay the scheduling of the election indefinitely. JA Where rigorous literalism would surely lead to incongruous or absurd results such as this, this Court has not hesitated to reject a plain language interpretation, even of an unambiguous statute. United Parcel Serv. v. D.C. Dep t of Emp t Servs., 834 A.2d 868, 872 (D.C. 2003). The Superior Court also erred by failing to consider the legislative history and to view the word after in light of the structure and history of the Charter Amendment. See Grayson v. AT&T Corp., 15 A.3d 219, 238 (D.C. 2011) ( [Words] are inexact tools at best and for that reason there is wisely no rule of law forbidding resort to explanatory legislative history no matter how clear the words may appear on superficial examination. ). Initially, the Attorney General for the District of Columbia Clarification and Elected Term Amendment Act of 2010 ( 2010 Act ), which authorized the Charter Amendment, did not contain any language regarding when 6

12 the first Attorney General election would be held. On February 2, 2010, prior to the final reading, then-councilmember Phil Mendelson the Act s principal author and chair of the Committee on Public Safety and the Judiciary introduced an amendment proposing a number of technical and clarifying changes. JA Among these changes, Councilmember Mendelson proposed to add a requirement that [t]he first election of the position of Attorney General shall be after January 1, JA 129. In a memorandum to the Council drafted by Councilmember Mendelson that provided his rationale for his proposed amendments, he wrote that the purpose of this Amendment was to clarify that the first election to be held for the position of Attorney General shall coincide with the election for Mayor in [the] 2014 general election. JA 133. And when Councilmember Mendelson introduced the Amendment before the Council on February 2, 2010, he reiterated that [t]he election, which requires a Charter change, would not take place under this amendment in the nature of a substitute, until the year 2014, to coincide with the election of the Mayor. Council of the District of Columbia: Twenty-Sixth Legislative Meeting, D.C. Office of Cable Television, Public Hearing, Committee of the Whole (Feb. 2, 2010), available at February_2010_week_1.shtm (remarks at 1:50:11) (emphasis added). The Home Rule Act provides that the Charter can be amended in two ways, either by popular referendum or by congressional action. D.C. Code (a), Importantly, at the time of Councilmember Mendelson s proposal to add the after January 1, 2014 language, the Council intended to enact the Charter Amendment through congressional approval, rather than voter referendum. JA 129 ( This title shall apply upon enactment by Congress. ). Therefore, the District s ability to elect its Attorney General beginning in 2014 was contingent on Congress affirmatively enacting the Charter Amendment in advance of the

13 election. Although the legislative history makes clear that the Council intended the first election to take place in 2014 if possible, the language was purposefully flexible so that the Charter Amendment would not become moot if Congress failed to act within a certain time. The Council did not, however, grant itself flexibility to set a later date if Congress acted in time to hold the election in 2014, and never intended to leave open-ended the question of when the first election would occur. The legislative history makes clear that the Council intended for the election to occur in 2014 or, if that proved impossible, at the first opportunity after the Amendment s passage. Before the bill was enacted, the Council changed its approach and decided to amend the Charter by way of a referendum to allow voters to participate directly in the important decision of whether to elect their Attorney General, rather than leaving the decision to Congress. On June 1, 2010, Councilmember Mendelson introduced the Elected Attorney General Referendum Emergency Amendment Act of 2010 ( Referendum Act ). JA The Referendum Act proposed amending the 2010 Act to take the decision out of the hands of Congress, and put the decision to the electorate. When Councilmember Mendelson introduced the Referendum Act to the Council, he reiterated that the first election was intended to be in 2014: [T]he election for the Attorney General is delayed... until 2014, which will give plenty of time for transition, and there s no immediate fiscal impact. Council of the District of Columbia: Thirty-Seventh Legislative Meeting, D.C. Office of Cable Television, Public Hearing, Committee of the Whole (June 1, 2010), available at June_2010_week_1.shtm (Part 3, remarks at 16:12). The Council s decision to remove Congress from the equation and allow the voters to decide whether to amend the Charter was consistent with the purpose of the bill itself to give 8

14 District voters greater rights of self-determination. Although the Council did not further clarify the meaning of the after language when it decided to proceed with a referendum, the legislative history makes clear that it saw no need to do so. The language was never intended to provide authority to the Council to delay the first election once the Amendment was approved. And nothing in the subsequent legislative record between 2010 and 2013 suggests that any members of the Council believed they had the legal authority to push the election to 2018 or to postpone it indefinitely. In fact, just three months before the Council passed legislation postponing the election to 2018, the Council adopted implementing legislation necessary to hold the Attorney General election in Election Code Conforming Emergency Amendment Act of 2013, D.C. Act , 60 D.C. Reg. 11,799 (Aug. 16, 2013). The Superior Court s disregard of this relevant legislative history was plainly not in line with this Court s guidance on statutory interpretation. II. THE AMENDMENT S LANGUAGE MUST BE INTERPRETED CONSISTENTLY WITH THE VOTERS INTENT THAT THE FIRST ELECTION OCCUR IN 2014 As referenced above, the Home Rule Act provides two distinct mechanisms for amending the District Charter. First, the Charter can be amended by congressional action. D.C. Code Second, the Charter may be amended by an act passed by the Council and ratified by a majority of the registered qualified electors of the District voting in the referendum held for such ratification. Id (a). The Council chose the second path and engaged the electorate in seeking to amend the Charter through popular referendum. On November 2, 2010, District voters were presented with and voted overwhelmingly in support of the Elected Attorney General Charter Amendment. The voters approval was thus integral to and legally required for the Amendment s passage. 9

15 In construing any statute, this Court must consider and give effect to the intent[ions] of the lawmaker. Varela v. Hi-Lo Powered Stirrups, Inc., 424 A.2d 61, (D.C. 1980) (quoting United States v. Goldenberg, 168 U.S. 95, (1897)). That is so whether the lawmaker is the legislature, the voters, or as in this case both. Thus, for example, in the analogous context of Charter amendments sent for congressional approval, this Court has noted the need to consider Congressional intent in approving the amendment. Hessey v. D.C. Bd. of Elections & Ethics, 601 A.2d 3, 7 (D.C. 1991); see also, e.g., Convention Ctr. Referendum Comm. v. D.C. Bd. of Elections & Ethics, 441 A.2d 889, 901 (D.C. 1981) (noting in the initiative context that the intent of the electorate and the petition-signer are paramount). And when interpreting popularly approved laws, the collective intent of the people becomes the object of the court s search. Lemon v. United States, 564 A.2d 1368, (D.C. 1989) (citation omitted); see also Lynch v. State, 145 P.2d 265, 268 (Wash. 1944) (noting that, in construing laws passed by referendum, the legislative intent with which we are... concerned... is not merely that of the conventional legislative body composed of the senate and the house of representatives, but... the intention of other legislative entities vitally connected with the final adoption of the act and of the referendum measure respectively ). In conducting this inquiry, courts focus on the meaning the voters probably placed on the provision. See Thomas v. Bailey, 595 P.2d 1, 4 & n.15 (Alaska 1979); see also City of Spokane v. Taxpayers of Spokane, 758 P.2d 480, 483 (Wash. 1988) (noting that, in construing a local initiative, [j]udicial interpretation should focus on the voters intent and the language of the initiative as the average informed lay voter would read it. (citation and internal quotation marks omitted)); Winter v. Shafter, 26 N.W.2d 893, 896 (Mich. 1947) (observing need, in construing voter-approved charter amendment, to ascertain and give effect to the intent of the 10

16 electorate with due regard to the circumstances and the purposes sought to be accomplished ). In this case, because amendment of the Charter required voter approval, the Court must apart from consideration of any later implementing legislation determine the electorate s intent in approving the amendment. Hessey, 601 A.2d at 7. To discern the electorate s intent, courts routinely look to ballot materials, voter pamphlets, and other information upon which voters directly acted or relied, as it is, of course, proper to consider the official statements made to the voters in connection with propositions of law they are requested to approve or reject. Watson v. Fair Political Practices Comm n, 266 Cal. Rptr. 408, 413 (Ct. App. 1990); see also, e.g., Hi-Starr, Inc. v. Wash. State Liquor Control Bd., 722 P.2d 808, 812 (Wash. 1986) ( To ascertain the collective purpose and intent of the people, material in the official voters pamphlet may be considered. ); Carter v. Seaboard Fin. Co., 203 P.2d 758, 769 (Cal. 1949) ( In resolving the uncertainty caused by the inclusion of... language..., recourse may be had, as an aid to interpretation, first to the summary prepared by the attorney general..., and then to the arguments for and against the measure sent to the voters and set forth in the pamphlets accompanying the sample ballots.... (citation omitted)). Indeed, this Court has specifically recognized that the summary statement made available to voters at the polls... may be considered by the court in determining the purpose of legislation adopted by the initiative process. Lemon, 564 A.2d at ; see also, e.g., Backman v. United States, 516 A.2d 923, 926 (D.C. 1986) (considering what voters were instructed when they passed upon the proposed legislation at issue). That recourse is dispositive in this case. The Washington Supreme Court s decision in Lynch is instructive. That case presented the question of whether a workers compensation statute passed by referendum applied retroactively. Although the court found that the provision at issue could be read to permit 11

17 retroactive application, it observed that voters of the state... were advised officially that the measure related only to future accidents and was not retroactive. Lynch, 145 P.2d at 270. Specifically, as here, an explanation of the referendum measure was published in pamphlet form and mailed to each voter for the express purpose of advising the electorate to the merits and applicability of the proposed legislation. Id. Noting that, [i]n determining the meaning of legislation enacted through... referendum, the courts have the right to look to, and may consider, materials published in connection with the submission of such measures to the vote of the electorate, the court found such information to be positive evidence of what the people intended when they voted to adopt the referendum measure. Id.; see also id. ( It is to be presumed that the voters relied upon the information... given to them in the manner provided by law. ). Because such concrete evidence was consistent with the general purposes of legislation, the court construed the statute to preclude retroactive application. Id. The same evidence of voter intent is available here. In this case, the language that voters actually approved took the form of a summary statement appearing on their ballots. In accordance with its statutory duty, the Board prepared that summary statement for publication several months prior to the election and inclusion in the 2010 November ballot. This summary statement explained unambiguously: If voters approve of this amendment and the U.S. Congress does not reject the measure, residents of the District of Columbia would begin voting for the Attorney General in District of Columbia Board of Elections and Ethics, Notice of Publication for Proposed Charter Amendment IV: The Elected Attorney General Charter Amendment, 57 D.C. Reg (July 16, 2010) (emphasis added). Thus, when the D.C. electorate voted overwhelmingly in favor of the Amendment, they understood that they were bestowing upon District citizens the right to elect their Attorney General in 2014 and 12

18 thereafter. 2 To Amici s knowledge, neither the Council, the Board, nor any other District entity gave voters any indication that the first Attorney General election could, at the Council s discretion, be postponed to a year later than The electorate s intent is therefore readily discernible. It is, moreover, completely reasonable for the Board to have departed from the language used in the Charter Amendment when explaining to the citizens what the referendum would accomplish. As Mr. Zukerberg points out, the word after often carries a technical meaning in statutory construction, providing an effective date for legislation. Appellant s Br. at 7-9. But the average voter would be unlikely to know that. By replacing a term of art ( after January 1, 2014 ) with more graspable language ( in 2014 ) in the summary statement, the Board explained to voters in plain terms what the Council was asking citizens to approve. This Court should interpret the Charter Amendment consistent with the plain language of the summary statement, rather than in an overly technical way that deprives the Amendment of an effective date and is at war with the voters intent. See Farnell v. State, 679 So. 2d 662, 664 (Ala. 1996) (rejecting plaintiff s attempt to rely on an overly technical reading of the statute where the average voter would not likely have assumed that reading when approving the referendum); People v. Hartley, 67 Cal. Rptr. 3d 667, 669 (Ct. App. 2007) ( [W]e must give a statute a reasonable and commonsense interpretation consistent with the apparent purpose and intention of the voters, practical rather than technical in nature, which upon application will result in wise policy rather than mischief or absurdity. ); Watson, 266 Cal. Rptr. at 413 ( The words must be understood, not as the words of... the city council,... but as the words of the voters who adopted the 2 Although the full text of the Charter Amendment appeared in the Voter Guide for the election, the Summary Statement was the only information included on the ballot that was approved by the voters. See JA

19 amendment. They are to be understood in the common popular way, and, in the absence of some strong and convincing reason to the contrary... they are not entitled to be considered in a technical sense inconsistent with their popular meaning. (citation omitted)). When reviewing legislation that requires voter approval, the ultimate goal is to harmonize the language of the legislation with the ballot approved by the voters. Calik v. Kongable, 990 P.2d 1055, 1057 (Ariz. 1999) (a court must not only effectuate the intent of those who framed the provision, but also, in the case of [a referendum], the intent of the electorate that adopted it (alteration added) (citation omitted)). Common Cause v. State, 455 A.2d 1 (Me. 1983), provides a useful comparison. There, the plaintiffs challenged the legality of an already passed referendum. The ballot sought approval for the city to borrow funds to develop a dock that it would then lease to a shipping company. The plaintiffs argued, and the court recognized, that lease ordinarily implies the receipt of money in exchange for the property s usage. Id. at 14. The legislation itself, however, was clear that no rent would be paid. Nevertheless, the court upheld the referendum, concluding that other characteristics of the arrangement made it not clearly misleading for the ballot to refer to the arrangement as a lease. Id. Despite ostensibly different meanings, the court found that the ballot and the legislation could be reconciled, allowing the referendum to stand. See id. at Common Cause thus makes clear that statutory text and voter intentions should be read in tandem and upheld wherever reasonably possible. Similarly here, the word after may ordinarily imply any time thereafter, as the Attorney General urges. But, as in Common Cause, the meaning of that phrase must be harmonized with the language on the ballot stating that the first election would occur in An interpretation that authorizes the Council to delay the election beyond 2014 would render the 14

20 ballot clearly misleading, effectively nullifying the voters involvement and voiding the Amendment. Before reaching this drastic conclusion, the Court should strive to harmonize the language with the ballot provided the voters. See id. at 15 (noting the importance of maintaining a high degree of finality in referendum votes, and that [a]fter the electorate has acted, every reasonable intendment will be indulged in favor of the validity of the vote ). By interpreting after January 1, 2014 to mean sometime after January 1 but still in 2014, the Court can give reasonable meaning to every word of the Charter Amendment while avoiding inconsistency with the ballot. Any ambiguity in the Charter Amendment disappears when interpreted in connection with what the voters actually approved: there is only one reading that harmonizes the votes at both steps of the process and still gives meaning to every word of the Charter Amendment. 3 Given the two-step amendment process under which the electorate s approval was legally required, such a harmonizing reading provides the only sound outcome. [A]fter January 1, 2014 cannot be interpreted, contrary to the voters understanding, to provide the Council with a blank slate for postponing the first Attorney General election to any time in the future, or indefinitely. 3 Requiring the election to take place in 2014 also comports with accepted tools for resolving tension between competing legal pronouncements. For example, where two provisions of a statutory scheme address the same subject, one in a general matter and one more specific, the more specific should control. See Malone v. Shyne, 937 So. 2d 343, 367 (La. 2006) (Traylor, J., dissenting). This is especially true where [a] rational construction of these two provisions is that they are not really in conflict. Id. at 351. Likewise here, the summary statement approved by voters addresses the subject of the Attorney General election in a manner that is fully consistent with, but more specific than, the language approved by the Council. 15

21 III. THE COUNCIL S INTERPRETATION, AS INDICATED BY THE OCTOBER 2013 LEGISLATION, IS NOT ENTITLED TO DEFERENCE In its argument to the Superior Court, Appellees contended that, under this Court s opinion in Jackson v. District of Columbia Board of Election & Ethics, 999 A.2d 89 (D.C. 2010), the court must defer to the view taken by the Council when implementing the Charter Amendment. Although in some cases the Council s interpretation of its own legislation is entitled to deference, that is true where there is reason to believe that the Council s implementing legislation is consistent with the original legislation. That is not true here, for three reasons. First, Jackson is clear that the Council s interpretation receives deference only where it addresses a statutory ambiguity, and notes that this Court h[as] not hesitated to strike down a provision of the [implementing legislation] where it squarely conflicted with a provision of the [Charter Amendment]. Id. at 107. Here, as explained, the language at issue is unambiguous when construed in context. Absent ambiguity, the Council is not entitled to substitute its current view of a Charter Amendment for that originally passed and approved by the voters. Second, the ballot statement before the Court in Jackson was silent on the specific question at issue. As the Court phrased it, the ballot asked voters to approve creation of the right to legislate by initiative, but did not ask them to vote as to the scope of the initiative power. Id. at 102 n.19. Here, in contrast, the ballot directly informed the citizens as to when the first Attorney General election would occur, and they clearly approved it first occurring in While the ballot s silence in Jackson may have offered broader authority for the Council to act, there is no similar blank canvas here. To the contrary, the electorate spoke clearly and directly to the specific issue at hand. Third, the fact that it has been only three years since the Council passed this Charter Amendment and many of the councilmembers remain the same is of no moment. The Council s 16

22 implementing legislation is entitled to deference only where it reflects the Council s original intent in passing the bill. In Jackson, the original Council s statements made it inconceivable that it intended to do anything different from what the later Council provided for in the implementing legislation. Id. at This case presents the opposite situation: Here, the legislative history from the time when the Council passed the Charter Amendment makes it inconceivable that it intended to leave the question when and whether the people would exercise their right to choose their own Attorney General to the whims of a future Council, expanding the Council s power at the expense of the people s. The legislative history makes clear that the Council that passed the Amendment intended that the election would occur in 2014, see, e.g., JA 129, 133; its goal was to advance the cause of democracy and the opportunities for the citizens of the District to participate meaningfully in District governance. See Council of the District of Columbia: Twenty-Sixth Legislative Meeting, D.C. Office of Cable Television, Public Hearing, Committee of the Whole (Feb. 2, 2010), available at _week_1.shtm (remarks at 2:03:40) (Councilmember Catania commenting that the bill was necessary to take another step towards ultimately having more self-governance ); id. (remarks at 2:04:25) (Councilmember Catania commenting that the goal of the legislation was to create two separate power centers and both should be directly elected by the people ); id. (remarks at 2:11:45) (Councilmember Thomas noting that the bill would move us in a direction where we have the autonomy that we need in this government, and would allow the people to insure that the laws are being enforced in their interests). The Court should not allow the act of a later Council to nullify that intent. 17

23 Moreover, the legislative history of the Postponement Act passed by a slim 7-6 margin confirms that the postponement reflected a meaningful change in perspectives from what the Council had intended when it passed the Charter Amendment in 2010, giving the voters the power to decide whether and when the District would have an elected Attorney General. When considering in 2013 whether to postpone the election to 2018, Councilmember Bowser stated expressly that she had previously been conflicted in her vote in favor of having an elected Attorney General, now sensed some unreadiness among government officials, and therefore supported postponing the election. Council of the District of Columbia: Fourteenth Legislative Meeting, D.C. Office of Cable Television, Committee of the Whole (July 10, 2013), available at _week_2.shtm (remarks at 2:39:05). Another reiterated that he had always disliked the idea of electing the Attorney General, and therefore questioned whether Council could postpone or repeal the Amendment. Council of the District of Columbia: Mark-Up Committee on the Judiciary and Public Safety, D.C. Office of Cable Television (June 28, 2013), available at (remarks at 51:40). Of course, Councilmembers ordinarily are free to change their minds about legislation they previously favored and to seek the repeal of legislation they consistently opposed. But where, as here, the prior legislation was part of a Charter Amendment approved by the voters, the Council may not reverse course without voter approval. Nor can Councilmembers later-developed views of their ability to postpone the Charter Amendment from taking effect be taken as a proxy for their earlier views on that subject at the time when they voted in favor of the Amendment. It would be particularly inappropriate for this Court to 18

24 defer to the Council s present view here, in light of the fact that it is driven in part by legislative remorse. Finally, although Jackson places greater emphasis on the Council s intent in approving an amendment than many other jurisdictions would, 999 A.2d at 101, that precedent does not authorize the later Council to implement the Amendment in a way that deviates from what the Council previously intended. Nor does it render voter intent irrelevant. As a legal prerequisite to enactment of the Charter Amendment, voter approval cannot be ignored, and the import of that approval must play a meaningful role in legislative interpretation. See Ethan J. Leib, Interpreting Statutes Passed Through Referendums, 7 Election L.J. 49, (2008) (observing that, although voters in the referendum context are not vested with primary legislative authority, their views and intentions warrant respect and, like those of presidents or governors in the case of ordinary legislation, provide useful policy or even linguistic context for understanding the statute, and... can be good evidence of where the political equilibrium lies (citations omitted)). This Court can and should give proper effect to the intentions of both the Amendment s framers and its ratifiers, and should not grant deference to the Council s more recent change of course. IV. THERE IS STILL TIME FOR THIS COURT TO ORDER THE COUNCIL TO PUT THE ELECTION BACK ON TRACK FOR 2014 The District Charter requires that the first Attorney General election take place in It is not too late to make that a reality. In Appellant s Motion for an Expedited Appeal, Mr. Zukerberg lays out the timeline for the District s 2014 primary elections, which will take place tomorrow, April 1, Appellant s Mot. at 2 (Mar. 10, 2014). Given this timing, the Attorney General will not appear on the April 2014 primary ballot. However, as Appellees made clear in their Response to Appellant s Motion for an Expedited Appeal, there is more than one way to 19

25 ensure that the Attorney General is elected in Appellees' Resp. at 6 (Mar. 13, 2014) ("Beyond the April 1 primary, there remain several possible ways to conduct a partisan Attorney General election in 2014 ifthis Court were ultimately to rule that it was required."). Amici take no position on which is the best way to hold the election in We urge this Court to order the Council, through any lawful means of its choosing, to put the election back on track for CONCLUSION For the foregoing reasons, Amici respectfully request that this Court prevent the Council from changing a validly enacted Charter Amendment through unilateral legislation. Once the Council put the question in the voters' hands, it became bound to accept their decision. Amici therefore support Mr. Zukerberg's request for relief. Dated: March 31, 2014 Respectfully submitted, Richard P. Bress (D.C. Bar No ) Stephen P. Barry Jessica K. Thibodeau Andrew J. Robinson LATHAM & WATKINS LLP th Street NW Suite 1000 Washington, DC (202) Counsel for Amicus DC Appleseed Center for Law & Justice Walter A. Smith, Jr. DC APPLESEED CENTER FOR LAW & JUSTICE th Street NW Suite 510 Washington, DC (202) Counsel for Amici Curiae 20

26 CERTIFICATE OF SERVICE I hereby certify that on this 31st day of March, 2014, I caused to be served the foregoing BRIEF AMICI CURIAE, DC APPLESEED CENTER FOR LAW AND JUSTICE, DC VOTE, ET AL., IN SUPPORT OF APPELLANT AND REVERSAL OF THE DECISION BELOW via electronic mail, upon the following: GARY THOMPSON REED SMITH LLP 1301 K Street NW Suite 1100, East Tower Washington, DC (202) gthompson@reedsmith.com Counsel for Appellee Paul Zuker berg RICHARD LOVE SENIOR ASSISTANT ATTORNEY GENERAL OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA 441 4th Street NW, Suite 600S Washington, DC richard.love@dc.gov TODD KIM SOLICITOR GENERAL LOREN ALIKHAN DEPUTY SOLICITOR GENERAL OFFICE OF THE SOLICITOR GENERAL 441 4th Street NW, Suite 600S Washington, DC todd.kim@dc.gov loren.alikhan@dc.gov Counsel for Appellant D. C. Board of Elections and Ethics et al. Richard P. Bress LATHAM & WATKINS LLP th Street, NW Suite 1000 Washington, DC (202) Counsel for Amicus DC Appleseed Center for Law and Justice