OFFICE OF THE GENERAL COUNSEL

COUNCIL OF THE DISTRICT OF COLUMBIA

1350 Pennsylvania Avenue NW, Suite 4, Washington, DC 20004 (202) 724-8026

MEMORANDUM
To:

From:
Date:
Re:

Chairman Phil Mendelson, Councilmembers Jack

Evans, Kenyan McDuffie, and Vincent Orange, and
Nyasha Smith, Secretary
V. David Zvenyach, General Counsel
February 6, 2015
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.)

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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.

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.
1

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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,
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
2

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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 selfgovernance 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 narrowconstruction 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 billthe 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

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 AntiDeficiency 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.
3