Final legalization of marijuana initiative order

DISTRICT OF COLUMBIA

BOARD OF ELECTIONS

In Re: Administrative Hearing
Legalization of Possession of No. 14-004
Minimal Amounts of Marijuana
for Personal Use Act of 2014

MEMORANDUM OPINION AND ORDER
I. INTRODUCTION

This matter came before the District of Columbia Board of Elections (hereinafter "the
Boar during a special hearing on Tuesday, February 25, 2014, concerning a proposed
initiative measure, titled the "Legalization of Possession of Minimal Amounts of Marijuana for
Personal Use Act of 20l4" ("the Initiative"). Based upon its Summary Statement, the Initiative,
if passed, would

make it lawful for a person 21 years of age or older possess up to two ounces

of marijuana for personal use; . . . grow no more than three mature carmabis plants

within the person's principal residence; . . . transfer without payment (but not sell)

up to one ounce of marijuana to another person 21 years of age or oldersell drug paraphemalia for use, growing or processing of marijuana or

carmabis that is made legal by the Initiative.'

The purpose of the special hearing was to determine whether the Initiative presents a
proper subject matter for initiative in the District of Columbia. The proposer of the Initiative,
Adam Eidinger ("the Proposer"), Chair of the DC Carmabis Campaign, appeared before the
Board, and was also represented at the hearing by Amanda S. LaForge, Esquire of Sandler, Reiff,

Young Lamb, P.C. Chairman Deborah K. Nichols presided over the hearing, and Board

members Devarieste Curry and Stephen Danzansky participated.

'Summaiy Statement, Initiative.

II. PROCEDURAL HISTORY AND STATEMENT OF FACTS

On January 10, 2014, the Proposer filed the Initiative with the Board. On February 5,
2014, the proposer filed a Statement of Organization with the D.C. Office of Campaign Finance
and on February 7, 2014, the proposer filed a Verified Statement of Contributions
Report and Initial Report of Receipts Expenditures with OCF.2 On January 13, 2014, the
Board's Office of the General Counsel transmitted a Notice of Public Hearing and
Intent to Review the Initiative ("the Notice") to the Office of Documents and Administrative
Issuances for publication in the D.C. Register.3 The Notice was published in the D.C. Register
on January 17, 2014. Also on January 13, 2014, OGC sent the Notice to Mayor Vincent C. Gray,
Phil Mendelson, Chairman of the Council of the District of Columbia ("the Council"), Irvin B.
Nathan, Esquire, the District's Attorney General, V. David Zvenyach, Esquire, General Counsel
for the Council, and Brian K. Flowers, Esquire, General Counsel for the Executive Office of the
Mayor, and invited each of them to comment on the propriety of the Initiative.

The Board held the proper subject hearing on Tuesday, February 25, 2014.4 During the
hearing, the Board heard oral testimony from the Proposer, Ms. LaForge, and several other
individuals and organizations. While the hearing record was officially closed at the conclusion of
the hearing, on February 26, 2014, the Board extended the comment period through March 3,

2014. In all, the Board received and considered oral and written comments from five individuals

2 See D.C. Official Code (2001). Although the Statement of Organization and the Verified
Statement of Contributions Report and Initial Report of Receipts Expenditures were due on January 27, 2014, the
Proposer requested, and was granted a ten (I0) day extension of time within which to file the Statements, which
meant that that he had to file the documents on or before February 10, 2014. The proposer filed the Statement of
Organization on February 5, 2014, and the Verified Statement of Contributions Report and Initial Report of Receipts
Expenditures on February 7, 2014.

'see D.C. Mun. Regs. tit. 3 1001.2.

'See D.C. Mun. Regs. tit. 3 1001.3.

and/or organizations, including the Attomey General, counsel for the Proposer, and Ken
Slaughter, Esquire, Interim General Counsel for the District of Columbia Housing Authority

A. Comments Regarding the Propriety of the Initiative

1. The Attorney General

On February 19, 2014, and after the hearing on February 25, 2014, the Attorney General
submitted comments to the Board in which he expressed his opinion that the Initiative does not
present a proper subject for initiative because it contravenes the federal Anti-Drug Abuse Act of
1988,6 and thus conflicts with the District Charter.

The Anti-Drug Abuse Act requires that public housing agencies, including the DCHA,
utilize leases that

[p]rovide that any criminal activity that threatens the health, safety, or right to

peacefiil enjoyment of the premises by other tenants or any drug-related criminal

activity on or off such premises, engaged in by a public housing tenant, any

member of the tenant's household, or any guest or other person under the tenant's

control, shall be cause for termination of tenancy.7

The Anti-Drug Abuse Act defines "drug-related criminal activity" as "the illegal
manufacture, sale, distribution, use, or possession with intent to manufacture, sell, distribute, or

use, of a controlled substance (as such term is defined in section 802 of [the Controlled

Substances Because marijuana is a controlled substance under the Controlled

5 The other individuals to whom the OGC sent the Notice on January 13, 2014 did not submit comments regarding
the propriety of the Initiative.

?Approved November 18, 1988 (I02 Stat. 4181; 42 U.S.C. 1501 et Abuse Act").
742 u.s.c. l437d(l)(6).
8 Approved October 27, 1970 (84 Stat. 1236; 21 801 et Substances Act")

9 42 U.S.C. l437a(b)(9).

Substances Act," its "manufacture, sale, distribution, use, or possession with intent to
manufacture, sell, distribute, or use," whether "on or off [the public housing grounds], engaged
in by a public housing tenant, any member of the tenant's household, or any guest or other
person under the tenant's control, shall be cause for termination of tenancy."

The Attorney General asserts that, because the Initiative would, among other things,
legalize the possession of marijuana weighing two ounces or less for personal use by individuals
21 years of age and older, it would legalize conduct that, under federal law, constitutes drug-
related criminal activity and is, therefore, a basis for eviction from public housing. The Attomey
General fLll'tl'1CI' asserts that, while the Anti-Drug Abuse Act requires lease terms that vest public
housing authorities with the discretion to evict tenants for drug-related criminal activity, the
Initiative would prohibit the DCHA not only from using public housing leases which "state that
any 'drug-related criminal activity' is a basis for eviction,"" but also from evicting tenants on
the basis of that activity, provided it occurs off of public housing grounds." This is so,
according to the Attorney General, because public housing is a benefit provided by the DCHA,
and section of the Initiative precludes District government agencies, including the

DCHA, from denying benefits on the basis of the conduct legalized pursuant to the Initiative.

'?see 21 u.s.c. 8l2(c).
Letter fiom the Attomey General to the OGC regarding the Initiative (February 19, 2014) at 6.

'2 The Attomey General acknowledges that the Initiative would not prohibit the DCHA fi'om denying public housing
on the basis of conduct that occurs on public housing premises.

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2. The Proposer"

In response to the Attorney General's concems regarding the propriety of the Initiative,
Joseph Sandler, Esq. of Sandler, Reiff, Young Lamb, P.C, counsel for the Proposer, asserts
that section of the Initiative does not conflict with federal law, because if the DCHA
exercised its discretion to "terminate [a tenant's] lease based on the drug-related activity of [the
tenant or other covered persons], [s]uch termination would not be denial of a benefit based on
possession of marijuana or other conduct, but based on violation of the tenns of a lease to which
the tenant had voluntarily agreed." Thus, he concluded,

under the Proposed Initiative, the District would be free to use the lease required

by federal law and evict tenants who violate the terms of the lease, as well as

regulate conduct made lawful by the Initiative on property that it owns. For that

reason, there is absolutely no conflict between federal law and the Proposed

Initiative[.]

During the hearing, the Proposer testified that the Initiative would not, and was not
intended to, prohibit the DCHA from including the federally-required lease provision at issue,
and that it would not preclude the DCHA from evicting tenants based upon conduct made legal
by the Initiative.

3. The

In its comments to the Board, the DCHA noted that the Attorney General's analysis

regarding the validity of the Initiative "do not necessarily control the legal position our agency

will take on how DCHA interprets the Initiative." It indicated that the DCHA, in establishing its

"final policy on marijuana," would "be challenged to reconcile its Federal mandates with any

'3 Counsel for the Proposer submitted initial comments on February 21, 2014 and supplemental comments on
February 28, 20 I4.

"The DCHA submitted comments on March 4, 2014.

changed District laws, whether they are changed by initiative or as proposed in the Council of
the District of Columbia."

In addition, the DCHA outlined its federally-mandated obligation to include terms in its
leases that address the impact of drug-related activity, including marijuana use and possession,
on both admission into and eviction from public housing:

[T]he Quality Housing and Work Responsibility Act of 19982 (sic)
requires that [public housing agencies administering HUD's rental
assistance programs establish standards and lease provisions that prohibit
admission into the Public Housing and Housing Choice Voucher programs based
on the illegal use of controlled substances, including state legalized medical
marijuana. Specifically, Section 576(b) of QHWRA addresses admissions
standards related to current illegal drug use by all public housing and other
federally assisted housing. It states that the public housing agency must establish
standards or lease provisions that allow the agency or owner to terminate the
tenancy or assistance for any household with a member who is illegally using a
controlled substance or the use interferes with the health, safety or right to
peaceful enjoyment of the property. It is important to emphasize that, while
expressly extending the prohibition on marijuana use and requirement of lease
enforcement by PHA's, QHWRA also provides PHA's, including DCHA, have
discretion on whether to pursue eviction of current residents who are illegal drug
users.

ANALYSIS

A. The Right of Initiative

With the passage of the Initiative, Referendum, and Recall Charter Amendments Act in
1978 ("Charter Amendments electors in the District of Columbia were granted the right
to "propose laws (except laws appropriating funds) to the registered qualified electors of the

District of Columbia for their approval or The creation of this right established

'5 Letter from the DCI-IA to the ooc regarding the Initiative (March 4, 2014) at 2.
'6 o.c. Law 2-46, 24 D.C. Reg. 199 (1973) (codified as amended at D.C. Coos ANN. 1204.101 et seq.).

'7 D.C. Official Code 1-204. l0l(a) (2001).

in the District a "power of direct legislation by the putting the District's electorate
on a par with the Council, enabling it to wield the legislative powers enjoyed by the Council,
albeit to a limited extent. "Absent express or implied limitation, the power of the electorate to
act by initiative is coextensive with the power of the [Council] legislature to adopt legislative
The right of initiative is to be construed liberally, and "only those limitations
expressed in the law or 'clear[ly] and compelling[ly] implied" are to be imposed upon that
right."2?
District of Columbia Official Code 1-1001 . 1 provides that the Board, which

serves as "the gatekeeper for the initiative process,"2' may not accept an initiative measure if it

finds that it is not a proper subject of initiative under the terms of Title IV of
the District of Columbia Home Rule Act or upon any of the following grounds:

(A) The verified statement of contributions has not been filed pursuant to 1-
1163.07 and

(B) The petition is not in the proper form established in subsection of this
section;23

(C) The measure authorizes, or would have the effect of authorizing,
discrimination prohibited under Chapter 14 of Title or

(D) The measure presented would negate or limit an act of the Council of the
District of Columbia pursuant to 1-204.46." 26

'8 Marijuana Policy Project v. United States, 304 F.3d 82 (D.C. Cir. Policy Project").
'9 Convention Center, 441 A.2d. at 897.

2? Convention Center Referendum Committee v. District of Columbia Bd. of Elections and Ethics, 441 A.2d 889, 913
(D.C. 198 1 )(''Convention Center").

2' Marijuana Policy Project, 304 F.3d. at 84.

22 The verified statement of contributions consists of the statement of organization required by D.C. Official Code
1-1163.07 and the report of receipts and expenditures required by D.C. Official Code 1-1163.09.

23 D.C. Official Code l-1001.16 provides that initiative measure proposers must file with the Board printed
or typewritten copies of the full text of the measure, a summary statement of not more than 100 words, and a short
title of the measure to be proposed in an initiative."

2' Chapter 14 of Title 2 of the District of Columbia Code contains the District of Columbia Human Rights Act. See
D.C. Official Code 2-1401.01 et seq. (2001).

The Board finds that the Initiative is a proper subject of initiative under Title IV,
and that it meets each of the other criteria prescribed in District of Columbia Official Code 1-

B. The Initiative
By its terms, the Initiative, if enacted, would establish that

it shall be lawful, and shall not be an offense under District of Columbia law, for
any person twenty-one (21) years of age or older to

(A) Possess, use, purchase or transport marijuana weighing two ounces or less;

(B) Transfer to another person twenty-one years of age or older, without
remuneration, marijuana weighing one ounce or less;

(C) Possess, grow, harvest or process, within the interior of a house or rental
unit that constitutes such person's principal residence, no more than six
carmabis plants, with three or fewer being mature, flowering plants,
provided that all persons residing within a single house or single rental
unit may not possess, grow, harvest or process, in the aggregate, more than
twelve carmabis plants, with six or fewer being mature, flowering plants;

(D) possess within such house or rental unit the marijuana produced by such

The Initiative would also amend Chapter 9 of Title 48 of the District of Columbia Code
to remove from the District's definition of "controlled

(A) Marijuana that is or was in the personal possession of a person twenty-one
years of age or older at any specific time if the total amount of marijuana
that is or was in the possession of that person at that time weighs or
weighed two ounces or less;

(B) Carmabis plants that are or were grown, possessed, harvested, or processed
by a person twenty one years of age or older within the interior of a house
or rental unit that constitutes or at the time constituted, such person's
principal residence, if such person at that time was growing no more than
six carmabis plants with three or fewer being mature flowering plants and

25 D.C. Official Code l-204.46 deals with budgetary acts of the D.C. Council.
26 D.C. Official Code I-1001.16

27 Section Initiative.

if all persons residing within that single house or single rental unit at that
time did not possess, grow, harvest or process, in the aggregate, more than
twelve carmabis plants, with six or fewer being mature, flowering plants;
or

(C) The marijuana produced by the plants which were grown, possessed,
harvested or processed by a person who was, pursuant to subparagraph (B)
of this paragraph, permitted to grow, possess, harvest and process such
plants, if such marijuana is or was in the personal possession of that
person who is growing or grew such plants, within the house or rental unit
in which the plants are or were grown.

Moreover, the Initiative provides that "no district government agency or office shall limit
or refiise to provide any facility[,] service, program[,] or benefit to any person based upon or by
reason of conduct that is made lawful by this and that:

[n]othing in this subsection shall be construed to prohibit any person, business,

corporation, organization or other entity, or district government agency or office,

who or which occupies, owns or controls any real property, from prohibiting or

regulating the possession, consumption, use, display, transfer, distribution, sale,

transportation or growing of marijuana on or in that property."

C. The Initiative Would Not Conflict With, Amend, or Repeal a Federal Law

As noted above, "the power of the electorate to act by initiative is coextensive with the
power of the [Council] legislature to adopt legislative measures.''3 1 Pursuant to Title IV of the
District of Columbia Home Rule Act ("the District Charter"), the Council's legislative power is
circumscribed by limitations specified in D.C. Official Code 1-206.02. Consistent with this

provision, the Council may not, among other things, "[e]nact any act, or enact any act to amend

or repeal any Act of Congress, which concems the fiinctions or property of the United States or

23 Section Initiative.
29 Section Initiative.
3? Section Initiative.

3 See note 20 supra.

which is not restricted in its application exclusively in or to the Since the Council
carmot enact a law that would amend or repeal a federal law that applies nationally, the electorate
also cannot use the initiative process to enact such a law, and any proposed measure that would
do so would not be a "proper subject of initiative under the terms of [the District
and must be rejected by the Board."

An initiative that would impose by its terms a legal constraint, either by mandate or by
prohibition, on DCHA's authority to include the "drug-related criminal activity" provision
mandated by the Anti~Drug Abuse Act in its leases, would certainly be prohibited, as it would
amount to an impermissible attempt to repeal federal law. There is, however, no provision in the
Initiative that prohibits the DCHA from including the federally-mandated language in its leases.
Thus, if the Initiative were enacted, the DCHA would remain free to comply with the lease
provisions of the Anti-Drug Abuse Act, and would, therefore, continue to be "vest[ed] with
the discretion to evict tenants for [their] drug-related activity [and that of their] household
members and guests"35 based upon a violation of lease terms.

Notwithstanding the Attomey General's characterization of section of the
Initiative, that provision carmot be read to supplant basic tenets of landlord/tenant and contract
law, and supersede the contractual liability of a tenant which results when that individual

voluntarily enters into and executes a public housing lease. As the proposer has noted, a

32 D.C. Official Code (2001).

33 D.C. Official Code ?l-I00 1 . l6(b)( )(200l

34 See, for Brizill v. District of Columbia Bd. of Elections and Ethics, 9| 1 A.2d l2l2 (D.C.

198 that a District law conflicts with federal law when it would essentially amount to an
amendment or repeal of a federal law that applies nationally).

35 United States v. Rucker, 535 u.s. 125, 130 (2002).

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prospective tenant, by signing a public housing lease, is "enter[ing] a contract . . . voluntarily,
[and agreeing] that the lease may be terminated if that tenant or certain others engage[] in future

drug-related activity."36

If that tenant (or other covered persons) engages in drug-related activity
and is evicted, such eviction is due to a breach of lease provisions caused by engaging in
behavior the tenant contractually agreed not to engage in.

The Board's position is bolstered by language used by the U.S. Department of Housing
and Urban Development in its summary of the law governing tenant liability for the
conduct of family members:

As in a conventional tenancy, a public housing tenant holds tenure of the unit

subject to the requirements of the lease[.] By signing the lease, a tenant agrees to

comply with leasehold requirements[.] The ability of a PHA or other landlord to
enforce covenants relating to acts of unit residents damage to a unit,
disturbance of other residents) is a normal and ordinary incident of tenancy, and is
important for management of the housing. The power of a landlord to evict for the
tenant's breach of lease requirements conceming behavior of any member of the
household gives the tenant and other occupants a strong motive to avoid behavior

which can lead to eviction."

Finally, the Board credits the Proposer's testimony during the hearing that the Initiative
would not, and was not intended to, prohibit the DCHA from including the federally-required
lease provision at issue, that it would not preclude the DCHA from evicting tenants based upon
conduct made legal by the Initiative, and that it could not serve as a defense for the tenant in an
eviction proceeding.

In sum, the Board does not read section to force the DCHA to choose between
complying with the Initiative and complying with the Anti-Drug Abuse Act. Accordingly, we do

not find that the Initiative imperrnissibly conflicts with federal law.

3" Letter from Mr. Sandler, Counsel for the Proposer, to the OGC regarding the Initiative (February 21, 2014) at 2.

37 HUD Public Housing Lease and Grievance Procedures, 56 Fed.Reg. 51,560, 5 I ,566--67 (Oct. 1 I, l99l)(emphasis
added).
1 1

IV. CONCLUSION

Based upon the Board's extensive 1'esearch and analysis of relevant documentary
evidence and review of the Initiative, we lind that it meets each proper subject requirement, and
may therefore be presented to the electorate for its approval or disapproval. Accordingly, it is
hereby

ORDERED that the Initiative is ACCEPTED pursuant ts D.C. CODE

March 10. 2014

Date Deborah K. Nichols, Esq.
Chairman
Board of Elections

Member Danzansky, dissenting:

I agree with the Attorney General's conclusion, as expressed in his opinion letter of
February 19, 2014, and rebuttal of February 25, 2014, that one of the core provisions of the
Initiative contravenes federal law and thus is contrary to the terms of the Home Rule Act and not
a proper subject for initiative.

Federal law commands that public housing leases state that any drug--related criminal
activity, is a basis for eviction, and defines that activity via the Anti-Drug Abuse Act as any
violation of the federal Controlled Substances Act. That includes drug-related activity on or off
public housing premises.

The Initiative proposes to narrow, redefine, or delimit that full panoply of drug--related
offenses by instructing District government agencies and offices that they cannot limit or refuse
to provide any "facility, service, program or benefit to any person" who possesses minimal

amounts of marijuana. as delined in the Initiative.

I agree with the Attorney General's conclusion that both providing a public housing lease
and maintaining or assuring a tenancy under that lease, without termination for cause, is indeed a
"facility, service, program or benefit," and thus disagree with the proposer's interpretation of the
Supreme Court's decision in United States v. Rucker."

Nor do the exceptions defined by the Initiative ameliorate the breach, because they fail to
cover drug-related activities off of public housing premises.

Nothing cited in the letter submitted by the Deputy General Counsel of the DCHA
changes my view. Whether the Board of the local housing authority chooses to terminate leases
for "minimal" marijuana use, or whether the Department of Housing and Urban Development or
the U.S. Department of Justice chooses to prosecute such offenses, is a matter of enforcement
rather than law, and under the District Charter, initiatives must comport with law rather than the
choice or discretion of administrators to enforce that law. Similarly not a matter of law is the
discretion afforded a public housing landlord to terminate or not terminate a lease for violation of
the federally-mandated lease provision.

To that point, I do not read the DCHA's letter as asserting that it is not a "District of
Columbia agency or office" under the Initiative, despite its designation as an independent
agency. It does, however, assert that in the face of recent DC marijuana legalization initiatives
or legislation, it will make its own judgments with regard to enforcement or assertion of rights
and responsibilities. That assertion, correct or not, does not alter the law, and it is conformity vs.

contravention of federal law that determines whether a proposal is a proper subject for initiative.

38 See note 36 supra.

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