APPEALS COURT UPHOLDS D.C.'S SHELTER INITIATIVE

A sharply divided D.C. Court of Appeals has let stand the decision by a three-judge panel upholding the District of Columbia's landmark initiative that guarantees overnight shelter to the city's homeless in a move seen as strengthening the right of voters to create programs.

The court's 5-to-4 decision not to rehear the case was hailed by advocates for the homeless as a major victory and apparently ends the D.C. government's protracted fight to overturn the measure, which was the first of its kind in the nation when approved overwhelmingly by voters Nov. 6, 1984.

Initiative 17 requires the city to provide shelter that is "accessible, safe and sanitary and has an atmosphere of reasonable dignity." Under the initiative, the city must undertake a study to determine the magnitude of the homeless problem and to deal with any shortage of overnight shelter.

Mitch Snyder, member of the Community for Creative Non-Violence, which helped sponsor the initiative, estimated that 10,000 homeless people could be affected by the decision.

The city could appeal the Court of Appeal's decision to the U.S. Supreme Court, but a spokesman for the city's corporation counsel said yesterday that such a step is highly unlikely. Mayor Marion Barry was in Chicago yesterday and could not be reached for comment.

Barry previously had said the city was committed to assisting the homeless, but that the ruling in May upholding the initiative would "seriously undermine" D.C. home rule as well as his and the D.C. Council's authority to make laws.

It was that ruling by a three-judge panel that the city wanted the nine members of the appeals court to review.

City officials had argued that Initiative 17 could cost the city up to $60 million and hence violated city law prohibiting the electorate from appropriating funds.

The full court did not explain its decision in the brief three-paragraph order issued Thursday but two dissenting judges in separate statements suggested that the full court may not have been convinced that this was an appropriate time to address the city's arguments.

The city, arguing for a full court or en banc hearing, focused on the potential cost of judgments in civil suits against the city as a result of the initiative, saying they could produce a "fiscal hemorrhage."

Under the initiative, any homeless people who believe they have not been provided overnight shelter can sue the city.

Judge Frank Q. Nebeker said in his dissenting statement that a majority of his colleagues did not think the issue was "ripe at this time."

"They seem to deem it better that this court wait to decide this issue if an appeal if taken in an action seeking a money judgment . . . , " wrote Nebeker, who was joined in the minority by Judges Judith W. Rogers, James A. Belson and John A. Terry.

Chief Judge William C. Pryor joined in the majority with Judges Julia Cooper Mack, Theodore R. Newman Jr., John M. Ferren and John M. Steadman.

Attorneys for sponsors of Initiative 17 said the decision strengthens the initiative process by upholding the opinion that to overrule the initiative "would be to effectively write the initiative process out of existence."

"The court has said that voters can adopt substantive law by the same force and effect as that passed by the council and the mayor," said K. Gregory Tucker, attorney for the proponents. "I expect we will see the initiative used more and more aggressively by the voters to . . . impose their wills on legislative bodies . . . . To me this is the real significance of the ruling."

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