Memo Re Bill 21-23

O F F I C E O F T H E G E N E R A L C O U N S E L C O U N C I L O F T H E D I S T R I C T O F C O L U M B I A 1350 Pennsylvania Avenue NW, Suite 4, Washington, DC 20004 • (202) 724-8026

MEMORANDUM

To: Chairman Phil Mendelson, Councilmembers Jack Evans, Kenyan McDuffie, and Vincent Orange, and Nyasha Smith, Secretary

From: V. David Zvenyach, General Counsel Date: February 6, 2015 Re: Legality of Hearing on Bill 21-23

I am aware that the Attorney General, in a February 4, 2015 ("Memo"), opined that section 809(b) of the Appropriations Act ("Act") may prohibit the Council from holding a legislative hearing on Bill 21-23, the Marijuana Legalization and Regulation Act of 2015. As I have indicated to you orally, my opinion is that there is no legal impediment to proceeding with the hearing.

As a threshold matter, even if the Appropriations Act purported to do so, I am aware of no precedent barring a legislative body from gathering information on, debating, or evaluating pending legislation, even if the legislation, if passed, would be unconstitutional or otherwise prohibited by law. Moreover, the Attorney General's interpretation of section 809(b) of the Act is incorrect in light of the text and structure of the Act, applicable canons of statutory interpretation, and the Act's legislative history. As explained below, there are many reasons why the Act should not be read to prohibit the Council from proceeding with the hearing.

The fundamental question presented is whether, merely by holding a hearing, the Council would violate section 809(b) of the Act. In the Memo, the Attorney General does not provide any reasoned basis to conclude that it would. Nor does the Attorney General cite to any authority that would support his reading of the term "to enact" as including all steps that are "necessary" parts of the legislative process. (Memo at 3.)

Legality of Hearing on Bill 21-23 February 6, 2015

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Initially, the phrase "to enact" is ambiguous and susceptible to multiple meanings. In one commonly used sense, to "enact" means to implement. Within the Home Rule Act, "enact" has several different meanings. For example, sections 101 and 404 of the Home Rule Act suggest "enactment" occurs at Council passage. D.C. Official Code §§ 1-201.01; 1-204.04. Section 412 suggests that enactment might take place when the Mayor approves legislation. D.C. Official Code § 1-204.12. Even more puzzlingly, the lead-in language to section 602(a) uses "pass any act" while the enumerated prohibitions uses "enact any act." D.C. Official Code § 1-206.02. In the context of an initiative, the ballot measure becomes an "act of the Council" when the Board of Elections certifies the results of an election. D.C. Official Code § 1-204.105.

Despite the multiple possible meanings of "enact," exactly none of the meanings includes events that happen before the passage of legislation. Surprisingly, this is the meaning that the Attorney General's Memo imbues to the word. The Memo asserts that taking any step in the legislative process that is "necessary for the enactment of a permanent measure" is somehow "part of the enactment" of that legislation and therefore constitutes an impermissible use of funds.1 (Memo at 3.) The text of the statute does not support that conclusion.

1 Insofar as the Attorney General's suggested reading of the term "to enact" includes the taking of any "step" that is "necessary for the enactment of a permanent measure," that would not include holding of a hearing because the Council is not required to hold a hearing before passing permanent legislation. For example, the Council Rules do not require a hearing for a bill that is substantially similar to a measure that had a hearing in the previous Council Period. (Council Rule 501(a)(2)). The Council also may consider a bill that has been discharged from a Committee without holding a hearing. (Council Rule 355). And finally, the Council may waive the hearing requirement at any time. (Council Rule 1003). And, of course, the Council can pass emergency legislation without a hearing.


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By its own terms, the phrase "to enact" cannot describe an ongoing process of indeterminate duration – one that ultimately may or may not result in the passage of a law. Indeed, it would be patently unreasonable to construe the term "to enact" to include actions taken in connection with measures that fail to pass. No action is taken "to enact" a bill that dies in committee. Moreover, given the Council's process for amending legislation before ultimate passage, it would be impossible to know ex ante whether a bill considered at a particular hearing would eventually become a statute subject to the Act.

For example, the final version of Bill 21-23 may be an act that would not run afoul of section 809(b) through amendments or otherwise. Or, before the enactment of final legislation by the Council, Congress could amend, repeal, or replace section 809(b) with new legislation that would not prohibit the ultimate enactment of Bill 21-23 as currently drafted. Given these possibilities, it is impossible to state categorically at this time that holding a hearing regarding the current version Bill 21-23 somehow runs afoul of the "no-enactment" language of section 809(b) of the Act.

The Attorney General's interpretation is also inconsistent with Congress's past precedent. First, I am not aware of any example of Congress using the word "enactment" or the phrase "to enact" to refer to actions that occur before the Council passing a bill on final reading. Second, contrary to the Attorney General's position that enactment encompasses an ongoing process, Congress routinely uses the term "date of enactment," a usage that suggests that, at least in Congress's view, a statute is "enacted" on a date certain.2 (In the 113th Congress,

2 Further indicia of Congress's intent with regard to the term "enact" appear throughout the Act. For example, section 808 of the Act (the section immediately preceding the section at issue here) provides: "Nothing in this Act may be construed to


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at least 13 public laws contained the exact words "date of enactment." Indeed, the Act itself uses the phrase 59 times.) It would be flatly inconsistent with Congress's general practice to read section 809(b)'s use of the term "enact" to include a hearing scheduled months before any potential "date of enactment."

Applicable canons of interpretation for ambiguous statutory text further support the conclusion that the phrase "to enact" should not be read to include the holding of a hearing. One such canon is the principle of constitutional avoidance, which requires that ambiguous statutory language be construed to avoid serious constitutional doubts. See Gay Rights Coalition of Georgetown University Law Center v. Georgetown University, 536 A.2d 1, 16 (D.C. 1987) ("The deeply rooted doctrine that a constitutional issue is to be avoided if possible informs our principles of statutory construction. We do not needlessly pit a statute against the Constitution.")

prevent the Council or Mayor of the District of Columbia from addressing the issue of the provision of contraceptive coverage by health insurance plans, but it is the intent of Congress that any legislation enacted on such issue should include a 'conscience clause' which provides exceptions for religious beliefs and moral convictions." Thus, the Act expressly distinguishes between "addressing the issue" of contraceptive coverage and "enact[ing]" legislation on that issue. Had Congress intended to preclude the District from more broadly "addressing the issue" of reducing penalties associated with marijuana and other substances (which arguably would include holding a hearing), it could have done so expressly. Instead, Congress chose simply to restrict the funding of that more narrow class of actions taken to secure the final passage of legislation.


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Under the Attorney General's reading of section 809(b) of the Act, Congress has gone so far as to establish a blanket prohibition on local officials simply evaluating a particular piece of legislation. As noted above, I am aware of no instance in which a court has permitted Congress to prohibit a legislature from merely debating an unlawful measure, including the simple act of holding a hearing. Indeed, such a position is anathema both to the District's Speech or Debate statute, D.C. Official Code § 1-301.42 (modeled on the Constitution's speech or debate clause), and to the Councilmembers' First Amendment rights of speech and assembly. Accordingly, the principle of constitutional avoidance counsels strongly against the overbroad reading of the phrase "to enact" that the Memo endorses.

Another applicable canon of construction is that, as a limitation on the District's legislative authority under the Home Rule Act, section 809(b) must be narrowly construed to effectuate Congress's express statutory purpose to provide broad self-governance to the District of Columbia. See Bergman v. District of Columbia, 986 A.2d 1208, 1226 (D.C. 2010) (noting that statutory restrictions on legislative authority of the Council set forth in section 602 of the Home Rule Act "must be narrowly construed, so as not to thwart the paramount purpose [of] the HRA, namely, to 'grant to the inhabitants of the District of Columbia powers of local self-government.'") (quoting D.C. Official Code § 1-201.02(a)).

Here, as the United States Court of Appeals for the District of Columbia Circuit observed in Marijuana Policy Project v. District of Columbia, 304 F.3d 82, 84-85 (D.C. Cir. 2002), the language of section 809(b) of the Act (prohibiting use of funds "to enact any law, rule, or regulation") mirrors the language of several of the prohibitions of section 602(a) of the Home Rule Act. According to the Circuit, "[t]he Barr Amendment's ban on expenditures 'to enact any law to reduce penalties associated


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with' marijuana adds another item to this list of matters that, in the words of the Home Rule Act, are not 'rightful subjects of legislation.'" Id.

Because Congress used nearly the same language in section 809(b) of the Act as appears in section 602(a) of the Home Rule Act, and because Congress is presumed to be aware of the courts' interpretation of that language, the canon of construction to be applied to section 809(b) is the narrow-construction standard set forth in Bergman. The interpretation of section 809(b) that the OAG Memo advances would unnecessarily infringe on the District's self-governance and cannot be reconciled with this canon of construction.

With respect to the legislative history of section 809(b), not a single member of Congress even remotely hinted that the Act would prohibit the Council from the mere act of holding a hearing. Accordingly, there is no basis in the legislative history of the Act upon which to conclude that Congress intended to preclude the scheduled hearing at issue.

To the extent that any legislative history does exist, it favors a narrow reading of section 809(b). When Congress passed the Barr Amendment to the Fiscal Year 2000 Appropriations Act, which was the model for section 809(b), Congress understood that the purpose of the legislation was to block the certification of Initiative 59 and to prevent new drug laws from taking effect. Indeed, in the aftermath of the United States District Court's decision in Turner v. District of Columbia Board of

Elections and Ethics, which required the District of Columbia to count the ballots for Initiative 59, Congress deviated from the Barr Amendment's original formulation ("to conduct any ballot initiative" and instead chose the current formulation ("to enact or carry out any law"). As such, it stretches reason to conclude that Congress meant to prohibit Council hearings, when the very purpose of the amendment was to prevent


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something already voted upon but not yet certified from becoming law.

The Attorney General, in the Memo, argues that a line of cases, including MPP and Nevada Commission on Ethics v. Carrigan, 131 S. Ct. 2343 (2011), support his conclusion that section 809(b) of the Act applies to "the entire legislative process." (Memo at 3.) In addition, the Attorney General asserts that under the line of cases discussed in his Memo, "councilmembers lack a First Amendment Right to speak at a hearing held to consider legislation they have no legal authority to enact." (Memo at 4.)

The cases cited by the Attorney General do not support such broad claims. In particular, MPP does not support a reading that section 809(b) of the Act was designed to bar the Council from taking any action with respect to marijuana legalization, including holding a hearing.

The court in MPP dealt only with the ability of Congress, by making a particular issue an impermissible subject of legislation, to preclude private citizens from voting on the ultimate passage of an initiative reducing penalties for marijuana. See MPP, 304 F.3d at 84 ("The Amendment thus denies D.C. voters any authority to step into the D.C. Council's shoes and reduce marijuana penalties themselves.") (emphasis added). Indeed, the Court expressly stated that the Barr Amendment "restricts no speech." Id. at 85. Accordingly, MPP is inapposite to the issues presented here, and if any anything, lends support for the conclusion that Councilmembers may have a right to debate, gather information, and hold hearings at a stage in the legislative process that occurs well in advance of any final vote.

The Attorney General further argues that "it is unlikely that a court would hold that Councilmembers and Executive Branch


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employees have First Amendment free speech rights in this situation to conduct and participate in a hearing on the bill regardless of the Appropriations Act prohibition," and relies on Carrigan for support. (Memo at 4.) But the Court's holding in Carrigan only decided the narrow question of "whether legislators have a personal, First Amendment Right to vote on any given matter." Carrigan, 131 S.Ct. at 2346.

The statute at issue in Nevada was a recusal statute that prohibited a legislator who has a conflict of interest with a particular proposal from voting on, or advocating the passage or failure of, that proposal. Id. at 3247. What the Court did not address, however, was whether the statutory provisions at issue burden "First Amendment Speech rights of legislators and constituents apart from an asserted right to engage in the act of casting a vote." Id. at 2352 (Kennedy, J., concurring).

Finally, in the Memo, the Attorney General urged you to either delay the scheduled hearing until after the 2015 Fiscal Year or, in the alternative, hold a roundtable or similar discussion that addresses the substance of the issues in Bill 21-23. To be clear, if the Attorney General were correct that the Act precludes the Council from taking any "step" that is "necessary for the enactment of a permanent measure," no legal distinction can be drawn between holding a hearing and convening a roundtable because a hearing is not "necessary" in all cases.

As discussed above, although there are statutory provisions that require hearings for specific bills, there is no general statutory requirement that the Council hold a hearing. Only Council Rule 501(a)(2) requires that a hearing be held on a permanent bill—the District Charter does not. And because Rule 501(a)(2) can be waived by the Council, Council Rule 1003, Bill 21-23 could, in theory, be enacted without a hearing.


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Accordingly, a hearing is no more "necessary" than a roundtable to the eventual passage of permanent legislation.3

As the above demonstrates, the text, the structure, applicable canons of statutory interpretation, and legislative history all favor a narrow construction of section 809(b) of the Act – a construction that would not preclude the Council from holding a hearing simply because the Council ultimately may (or may not) enact legislation that may (or may not) run afoul of its prohibitions. In light of that fact, the Council should not now take a position that Congress itself did not adopt— namely that by prohibiting the use of funds "to enact" certain legislation, Congress thereby sought to preclude mere deliberation on a bill.

I am available if you have any questions.

VDZ

3 In addition to the other principles of statutory construction (addressed herein) that indicate that holding a hearing on Bill 21-23 would not violate section 809(b) of the Act and therefore would not subject councilmembers or Council staff to liability under the Anti-Deficiency Act, the rule of lenity also would weigh heavily against any potential criminal liability. See Whitfield v. United States, 99 A.3d 650, 656 (D.C. 2014) ("It is well-established that criminal statutes should be strictly construed and that ambiguities should be resolved in favor of the defendant (i.e.,Rule of Lenity)." (citations and brackets omitted). Even the Attorney General's "necessary step" standard is hopelessly vague given the fact that some steps are not "necessary" to enactment. Furthermore, although the Attorney General recognizes that the United States Attorney could conceivably conclude that a violation of section 809(b) constitutes a criminal offense under the Anti-Deficiency Act, he also acknowledges that no one has ever been criminal prosecuted for violating the Anti-Deficiency Act. (See Memo at 6, n. 6.) Given the inherent ambiguity of section 809(b) and the potential defenses available to you, any risk is vanishingly small.

Documents

Memo Re Bill 21-23