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DCMJ Letter to Ken McGhie 2 21 14 SENT

DCMJ Letter to Ken McGhie 2 21 14 SENT

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Published by: Martin Austermuhle on Feb 24, 2014
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February 21, 2014

Via E-Mail Kenneth J. McGhie, Esq. General Counsel Board of Elections 441 4th Street, N.W., Suite 250 Washington, D.C. 20001 Re: Proposed Initiative, “Legalization of Possession of Minimal Amounts of Marijuana for Personal Use Act of 2014”

Dear Mr. McGhie: We write to advise the Board of Elections that, at the public meeting scheduled for February 25, 2014, on behalf of our client, the proposer of the above-referenced proposed initiative (the “Proposed Initiative”), we intend to present argument that the conclusion of the letter to you dated February 19, 2014 from Attorney General Irvin B. Nathan (“Attorney General’s Letter”) — that the Proposed Initiative is not a proper subject for initiative under District of Columbia law — is clearly erroneous and should be rejected by the Board. The federal law with which the Proposed Initiative purportedly conflicts, 42 U.S.C. § 1437d(l)(6), requires that public housing authorities (such as the District) use leases which grant them the discretion to terminate tenancy based on drug-related criminal activity on or near public housing premises by the tenant, any member of the tenant’s household, or a guest or other person under the tenant’s control, without regard to the tenant’s knowledge of the drug-related criminal activity. Id.; Department of Housing and Urban Development v. Rucker, 535 U.S. 125, 136 (2002) (“We hold that . . . Section 1437d(l)(6) requires lease terms that give local public housing authorities the discretion to terminate the lease of a tenant when a member of the household or a guest engages in drug-related activity, regardless of whether the tenant knew, or should have known, of the drug-related activity”). Proposed new D.C. Code subsection 48-904.01(a)(3), that would be added by §1(b)(3) of the Proposed Initiative, would provide that that “no district government agency or office shall limit or refuse to provide any facility service, program or benefit to any person based upon or by reason of conduct that is made lawful” by the Proposed Initiative, i.e. possession of minimal amounts of marijuana for personal use. Because public housing is a benefit provided to residents by the District, the Attorney General concludes that §1(b)(3) of the Proposed Initiative

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Kenneth J. McGhie, Esq. February 21, 2014 Page 2 conflicts with § 1437d(l)(6) because it would prohibit public housing leases from containing language allowing the District to consider drug-related criminal activity that takes place either on or off public housing premises as a basis for eviction and would prohibit the District from evicting a public housing tenant who, in violation the lease, possessed small quantities of marijuana. Attorney General’s Letter at 5. Contrary to the Attorney General’s conclusion, however, nothing in the Proposed Initiative would prohibit the District from using its discretion to evict a public housing tenant under §1437d(l)(6) for drug-related activity (including possession of minimal amounts of marijuana for personal use made lawful by the Proposed Initiative). The new provision in question would prevent the District from denying a benefit by reason of someone having engaged in conduct that is made lawful by the other provisions of the Proposed Initiative—e.g., possessing small amounts of marijuana. That is not what the District would be doing, however, in entering into and invoking its rights under a lease. Requiring a prospective tenant to enter a contract, a lease, voluntarily, in which that tenant agrees that the lease may be terminated if that tenant or certain others engaged in future drug-related activity is not denying any benefit based on any conduct that has actually taken place. Thus, entering a lease with the provision required by federal law, 42 U.S.C. §1437d(l)(6), would not contravene the prohibition set forth in proposed new D.C. Code subsection 8904.01((a)(3). The District would not be refusing to provide any facility or program based on the tenant’s possession of marijuana or any other past conduct. It would simply be asking the prospective tenant to agree voluntarily to lease terms dealing with the future conduct not only of that tenant but of any other member of the tenant’s household, guests or other person under the tenant’s control. Nor would the proposed new provision prevent the District from exercising discretion, under the lease term, to terminate the lease based on the drug-related activity of such persons. Such termination would not be denial of a benefit based on possession of marijuana or other conduct, but based on violation of the terms of a lease to which the tenant had voluntarily agreed. Indeed, it is precisely for this reason that the Supreme Court, in Rucker, held that it was unnecessary to apply the doctrine of constitutional avoidance in interpreting 42 U.S.C. §1437d(l)(6). The Court recognized that the termination of the lease was not the denial of a benefit by the government that would raise due process concerns, but simply the enforcement of a contract voluntarily entered into: [Cases cited by challengers] deal with the acts of government as sovereign. . . . The situation in the present cases is entirely different. The government is not attempting to criminally punish or civilly regulate respondents as members of the general populace. It is instead acting as a landlord of property that it owns, invoking a clause in a lease to which respondents have agreed and which Congress has expressly required. [The cases] cast no constitutional doubt on such actions. Rucker, 535 U.S. at 135 (emphasis added). Further, proposed new subsection 48-904.01(a)(6) of the D.C. Code that would be added by section 1(b)(6) of the Proposed Initiative, would provide that nothing in the Initiative “shall

Kenneth J. McGhie, Esq. February 21, 2014 Page 3 be construed to prohibit any . . . 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.” That language further confirms the authority of the District, and its agencies including DCHA, to include terms in leases for its own property, regulating possession, use, etc. of marijuana, that would otherwise be made lawful under the Proposed Initiative. 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, and the Proposed Initiative is a proper subject of initiative. The Attorney General’s conclusion to the contrary is clearly erroneous and should be rejected by the Board. Thank you for your time and attention to this matter and we look forward to appearing before the Board on Tuesday. Sincerely,

Joseph E. Sandler Amanda S. La Forge Counsel to D.C. Cannabis Campaign

Copy to: Hon. Irvin B. Nathan, Attorney General (via facsimile)

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