District of Columbia Board of Elections & Ethics v. District of Columbia

Separate statement of

ROGERS, Associate Judge,

with whom BELSON and TERRY, Associate Judges, join, on the Petition for Rehearing En Banc.

The question of the proper interpretation of the effect of the phrase “laws appropriating funds,” D.C.Code § l-281(a) (1981), on the scope of the initiative power of the District of Columbia electorate has been presented to this court on several occasions.1 Still basic questions remain. The division opinion in the instant case acknowledges that the issue is one of first impression for which there is no case directly on point.

Unlike previous initiatives considered by the court, the shelter initiative includes the mechanism of court judgments to obtain funding to carry out its purposes. The division opinion establishes that the initiative creates an entitlement. In view of the scope of the homeless problem, and the manner of funding the payment of judgments against the District of Columbia government, the initiative has the potential for having a major impact on District of Columbia revenues. Consequently, the division opinion leaves unclear the scope of our decision in District of Columbia Board of Elections & Ethics v. Jones, supra. Since this is clearly an important issue2 and, given the pace of litigation, it is likely to be some time before it will again be a posture to be considered by the en banc court, I see no reason to wait until scarce fiscal and judicial resources have been expended, and vote to grant the petition for rehearing en banc.

. Hazel v. United States, 516 A.2d 944 (D.C.1986) (per curiam) (rejecting, on basis of the division opinion in the instant case, a challenge to the D.C. Mandatory-Minimum Sentences Initiative of 1981 as within exception for "laws appropriating funds”); Convention Center Referendum Committee v. District of Columbia Board of Elections & Ethics, 441 A.2d 889 (D.C.1981) (en banc) (initiative compelling defunding of Convention Center for which funds had been authorized by Act of Congress violates the D.C. Charter prohibition on “laws appropriating funds”); Board of Elections v. Jones, 481 A.2d 456 (D.C.1984) (initiative raising unemployment benefits and disbursing District government funds without further legislative action violates prohibition on "laws appropriating funds.”).

. See Carleton v. United States, No. 84-936 (D.C. filed July 10, 1986) (statement of Judge Nebeker on denying the petition for rehearing en banc).