Ever since the D.C. Council granted citizens the right to sponsor ballot initiatives back in 1978, Washingtonians have gleefully exploited their little piece of populism. Ballot initiatives have been launched by right-wingers and left-wingers, by animal rights activists and death penalty advocates, by those who want the government to pay for private schools and those who want children to pray in public schools.
In 17 years, District voters have bombarded the Board of Elections and Ethics with more than 50 proposed initiatives, 15 of which have been put to popular vote. D.C. residents have voted to create the lottery, impose mandatory minimum sentences, guarantee shelter for the homeless, and enact one of the strictest campaign finance laws in the nation.
The ballot initiative is, as one D.C. lawyer says, “a wonderful right.”
But if Vincent Mark Policy gets his way, it will soon be history.
An attorney with Greenstein, DeLorme & Luchs, Policy submitted briefs to D.C. Superior Court in February contending that this wonderful right is no right at all. According to Policy, the ballot initiative law violates the home rule charter and should be stricken from the books.
Policy's campaign to eviscerate the ballot initiative does not stem from some philosophical objection to popular democracy. Instead it springs from something much more tangible: money. The lawyer's effort constitutes the latest—and most drastic—action by D.C.'s powerful real estate industry to derail an initiative that might raise their taxes.
The legal controversy arises out of the Real Property Assessment and Tax Amendments Act, a ballot initiative first proposed more than five years ago by Jay Hessey, executive director of the Service Employees International Union (SEIU) Local 82 (commonly known as “D.C. Justice for Janitors”). If approved by voters, Hessey's initiative would revolutionize D.C.'s property tax appeals, a process that yields enormous tax rebates for some of the city's wealthiest commercial landlords.
All D.C. property owners can petition the city's Board of Real Property Assessment and Appeals (BRPAA) to lower their tax assessment, but as the system exists now, commercial property owners benefit disproportionately from property tax abatements. According to a Justice for Janitors survey, D.C.'s commercial property owners won more than $21 million worth of rollbacks from BRPAA in 1994, while the city's other property owners—combined—won $3.5 million in tax rollbacks. BRPAA conducts closed-door hearings and does not permit citizens to challenge tax rebates granted to commercial property owners.
Hessey was outraged by the secretive process and by the commercial property owners' huge tax rebates. So the union leader drafted an initiative that suggested opening all hearings to the public, permitting citizens to appeal the tax rollbacks given to commercial property owners, and appointing a “public advocate” to monitor the process. He submitted his measure to the Board of Elections and Ethics in January 1990. Hessey expected a rapid approval from the city—the board must certify that an initiative meets certain legal requirements before it can go before the voters—and then a mammoth victory at the polls. After all, what District voters—besides those named Carr or Cafritz—could object to this “sunshine” law?
(Besides opening the tax appeal process to the public, Hessey's initiative would also serve a more selfish purpose, one that he does not like to discuss. Justice for Janitors is campaigning to unionize the workers who clean D.C.'s office buildings. A victory for Hessey's initiative at the polls would pressure property owners and warn them of the local's strength.)
Commercial property owners undoubtedly feared that Hessey's law would hike their tax bills and expose their financial records to the public. So while the union leader anticipated overwhelming voter support for his bill, the real estate industry—led by its trade group, the Apartment and Office Building Association (AOBA)—set out to ensure that the voters never got to see it. AOBA enlisted Policy to fight the measure, and he has spent the last five years stymieing Hessey at the Board of Elections and Ethics, the Superior Court, and the D.C. Court of Appeals.
Hessey once thought his initiative would make the 1990 ballot. Now he hopes to cast a vote for it in 1996.
“Our initiative has been through every appeals process in this city,” says Hessey. “AOBA has fought us tooth-and-nail all the way.”
The history of Hessey's bill reads like a kind of Bleak House for the property tax business. First, AOBA and Policy stalled the initiative at the Board of Elections, persuading that body to reject the measure as an illegal infringement on the mayor's right to set tax rates. Hessey appealed. The D.C. Court of Appeals overturned the board's ruling and sided with Hessey. So the union official refiled his initiative. The board OK'd it. Policy and AOBA sued. The Court of Appeals threw out their suit. Policy and AOBA sued again. Superior Court Judge Rufus King III quashed this challenge, too.
Before an initiative can appear on the D.C. ballot, its author must collect the signatures of 5 percent of District voters. In August 1993, the board distributed signature petitions to Hessey, telling him he had to collect John Hancocks from 13,233 District voters, 5 percent of those registered at the time he filed the initiative in 1990. Hessey collected 15,825 valid signatures. He thought he was home free.
He was wrong. Policy and AOBA sued again, contending that Hessey was actually required to collect 16,342 signatures, 5 percent of the registration in 1993. This time, the Court of Appeals ruled in AOBA's favor and ordered Hessey to start all over.
In September 1994, Hessey filed his initiative again. The Board of Elections OK'd it again. Policy sued again. Now, having exhausted other means of stopping the measure, Policy is going for the jugular. He is trying to block Hessey's bill by toppling the entire ballot initiative process.
(AOBA, which has been the plaintiff or intervenor in all the previous rounds of the case, claims that it is no longer participating in the litigation. In this latest round, Policy is now representing two “citizens,” Aulander Stevenson and Anne White, who are purportedly suing on their own behalf. But according to depositions cited by Hessey's lawyer, Stevenson's boss sits on AOBA's board of directors and Stevenson has served on AOBA committees. And White takes courses from AOBA and works for Oliver Carr, an AOBA stalwart and the most powerful commercial property owner in the city. In addition, AOBA officials were present at the meeting where Stevenson and White agreed to be plaintiffs. And, Hessey's lawyer adds, neither Stevenson nor White is paying a penny of Policy's legal fees.)
Policy constructs an elaborate legal argument for scrapping the ballot initiative. Its central idea can be summarized as this: When it created the right to sponsor initiatives, the council changed D.C.'s “form of government.” Ballot initiatives, by passing legislative power to voters, circumvent the council's own authority to make laws. But since only Congress can alter the District's form of government, the initiative right must therefore be void.
Nonsense, say Hessey's lawyer Katherine Meyer and Board of Elections General Counsel William Lewis. They note that neither Congress nor the Court of Appeals has ever questioned the ballot initiative right; that most states carry similar statutes on their books; and that there is not an iota of merit to Policy's claim that the initiative process alters the government.
“Creating a right in the electorate to enact legislation is not a change in the form of government,” insists Lewis.
“Their arguments are completely frivolous,” Meyer says, adding that Policy may not even be trying to win, merely to delay Hessey's measure for as long as he can. “It is a strategic move. They are trying to tie up this initiative so that it will be months or years before we get it before the electorate. It just makes me livid.”
Policy, Meyer, and Lewis will argue the case before Superior Court Judge Linda Turner Hamilton in May.
Neither Policy nor AOBA returned phone calls about their anti-initiative drive. It's easy to guess why. To oppose the beloved initiative right for any reason is bad enough in the eyes of most D.C. voters. To oppose the initiative right in order to protect wealthy property owners and block public access to hearings violates virtually every American principle of equity and fair government.
“Democracy, which is always at best tenuous in the District, suffers a terrible setback if the initiative process is lost,” says Jamin Raskin, professor of constitutional law at American University. “Big-money interests are threatening to unravel the last few shreds of democratic participation that exist in this city.”