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OFFICE OF THE GENERAL COUNSEL LEGALESE


October 1999 Council of the District of Columbia Vol. 5, No. 2


|| Counting Days for Contract Review || Council Review Chart || Council Review of Confirmation Resolutions ||
|| D.C. Laws Scheduled to Sunset || Significant Federal Legislation || Boards and Commissions Manual || D.C. Code News ||
|| Converting a Resolution into Emergency || Retroactive Legislation || Motions that Delay Consideration of a Measure ||

|| Special Legislation || The Actions Necessary to End a Control Year ||
|| Legislative Drafting || Litigation || Attorney Committee Assignments || Welcome Aboard and Farewell ||


MESSAGE FROM THE GENERAL COUNSEL

Council Period XIII has already seen many changes in the way the Council processes legislation and information. The changes include a streamlined time period for review of contracts and modifications of the boards and commissions subject to Council review. To provide a quick reference of the changes, this issue contains a revised chart on how to count the days for the Council review of contracts, a summary of the changes contained in the October 1999 edition of the Boards and Commissions Manual, information on the availability of the revised chart on Council review provisions, a list of the entities that are subject to the Council's active and passive confirmation review, a list of laws that will sunset in the next year, a summary of recent Congressional legislation relating to the District, and information about recent changes in the D.C. Code. In addition, to provide further information on the legislative process, this issue includes a discussion of permissible special and retroactive legislation, the frequently used parliamentary procedures, legislative drafting tips, court rulings on Council enactments, and a response to the many inquiries received in this office as to the actions that are necessary to end a Control Year or Control Period. Read on! --- Charlotte Brookins-Hudson


COUNTING DAYS FOR CONTRACT REVIEW


Council Streamlined Review of Y2K Contracts (D.C. Code 1-1181.5a(i))
(Law 13-17 will expire February 27, 2000)

Council Streamlined Review of Contracts in excess of $1 million and Multiyear Contracts
(D.C. Code 1-1181.5a(j)) (District Charter 451(b)) (Applies after Act 13-110 became effective July 28, 1999)


COUNCIL REVIEW CHART


This summer, a 12-page chart Council Review Chart was circulated to all Council offices containing an updated alphabetical listing of District statutes with Council review provisions in which the Council has an active role -- i.e. approval or disapproval resolutions. Copies were also circulated to attendees at the Summer and Fall Legislative Drafting Sessions. If you cannot locate your chart or need additional copies, more copies are available in this office. This chart replaces the 1997 Council legislative review chart issued by this office. In reviewing this list it should be noted that section 412(a) of the Home Rule Act provides that Council resolutions be used to "express simple determinations" of the Council and to approve or disapprove, in whole or in part, proposed actions of the Mayor and other District government entities. The Council is prohibited from using such resolutions to modify a proposed action.

In reading this chart, I direct your attention, in particular, to the third column of the chart with the heading '"No. Days" This column indicates the time period of review, if one is specified in the statutes. The fourth column entitled "Type Days" contains letters which specifies the method for counting the days, where the Council has a finite period of review. For example, where the type day is "LD" it means Legislative Days which excludes Saturdays, Sundays, holidays and days of Council recess. Where, however, the type day is "MCD" or "MLD" it means Modified Calendar Days excluding only days of Council recess or Modified Legislative Days excluding Saturdays, Sundays, and holidays, respectively. If a zero, rather than 30, 45, 60, or other specific day-number, appears in the third column, then the Council has no time limit for its review. In the latter case, the review is open-ended until the end of the Council period.

The Office of the General Counsel continues to monitor all D.C. Laws as they become effective, with regard to Council review periods. Please check with this office for updates as you need them. [CB-H]


COUNCIL REVIEW OF CONFIRMATION RESOLUTIONS


The chart below summarizes changes made to Council review provisions of confirmations to boards and commissions by D.C. Law 12-285, the Confirmation Amendment Act of 1998, (D.C. Code 1-633.7(e) and (f)). Under this measure, Council review are of two types, active and passive.

Active review requires affirmative action by the Council to confirm the nominee within 90 days. The nomination is deemed disapproved if the Council does not take action to approve the nomination within the 90 day review period.

Under the passive review provisions the resolution is deemed approved if the Council does not disapprove the nomination within 45 days. Introduction of a disapproval resolution during the initial 45 day period grants 45 additional days to disapprove the measure. If no action is taken, to disapprove the resolution during the additional 45 day period, the nomination is deemed approved upon expiration of the second 45 day period.

 

Active Confirmation

Passive Confirmation

  • Alcoholic Beverage Control Board
  • Board of Elections and Ethics
  • Board of Trustees of UDC
  • Board of Library Trustees
  • Board of Zoning Adjustment
  • Citizen Complaint Review Board
  • Contract Appeals Board
  • Commission on Human Rights
  • Economic Development Finance
  • Corporation Board of Directors
  • Health and Hospitals Benefit Corporation
  • Historic Preservation Review Board
  • Housing Finance Agency Board of Directors
  • Local Business Opportunity Commission
  • Lottery and Charitable Games Control Board
  • Metropolitan Washington Airports Authority Board of Directors
  • National Capital Revitalization Corporation Board
  • Office of Employees Appeals
  • Public Employees Relations Board
  • Public Service Commission
  • Redevelopment Land Agency
  • Rental Housing Commission
  • Sports and Entertainment Commission Board of Directors
  • Taxicab Commission
  • Washington Convention Center Authority Board of Directors
  • Water and Sewer Authority Board of Directors
  • Zoning Commission

  • Apprenticeship Council
  • Armory Board
  • Board of Accountancy
  • Board of Architecture and Interior Design
  • Board of Appeals and Review
  • Board of Barber and Cosmetology
  • Board of Chiropractic
  • Board of Barber and Cosmetology
  • Board of Dentistry
  • Board of Dietetics and Nutrition
  • Board of Funeral Directors
  • Board of Industrial Trades
  • Board of Massage Therapy
  • Board of Medicine
  • Board of Nursing
  • Board of Nursing Home Administration
  • Board of Occupational Therapy
  • Board of Optometry
  • Board of Pharmacy
  • Board of Physical Therapy
  • Board of Podiatry
  • Board of Professional Counseling
  • Board of Professional Engineering
  • Board of Psychology
  • Board of Real Estate
  • Board of Real Estate Appraisers
  • Board of Real Property Assessments and Appeals
  • Board of Respiratory Care
  • Board of Social Work
  • Board of Veterinary Examiners
  • Boxing and Wrestling Commission
  • Child Support Guideline Commission
  • Commission on the Arts and Humanities
  • Multistate Tax Commission
  • Public Access Corporation Board of Directors
  • Statewide Health Coordinating Counsel



Pursuant to D.C. Code 1-633.7(g), the Mayor makes direct appointments to many of the boards and commissions which 1-633.7(e) and (f) do not reference. The chart may not contain some boards and commissions that were established after enactment of D.C. Law 12-285. These may not be entities to which the Mayor makes direct appointments. Therefore, the statute which establishes these entities should be consulted to determine if there is Council review, and the period of review. [JIB]


D.C. LAWS SCHEDULED TO EXPIRE (SUNSET)
WITHIN THE NEXT YEAR


 


SIGNIFICANT FEDERAL LEGISLATION IMPACTING EXCLUSIVELY ON THE DISTRICT OF COLUMBIA



BOARDS AND COMMISSIONS MANUAL UPDATE


The Boards and Commissions Manual issued by this Office has been updated. Please discard the December 1995 edition of the Boards and Commissions Manual as well as the July 30, 1996 update inserts and replace them with the October 1999 edition of the Manual. The October 1999 edition is available for pickup in this office and contains all the changes from the 1996 insert, the Omnibus Regulatory Reform Amendment Act of 1998, the Second Omnibus Regulatory Reform Amendment Act of 1998, the Confirmation Amendment Act of 1998, as well as other laws passed since 1996. This is a style manual consisting of sample resolutions for appointments to District of Columbia boards and commissions and some subordinate agencies. If you are reviewing confirmation resolutions, please check the Boards and Commissions Manual to ensure that the resolution is in the appropriate form. This edition is current through October 1999 and will be updated periodically as boards and commissions are established or abolished. The new edition reflects the following changes:

Additions Deletions
  • Advisory Commission on Sentencing
  • Board of Accountancy (Law 12-261)
  • Board of Architecture and Interior Design (Law 12-261)
  • Board of Barber and Cosmetology (Law 12-261)
  • Board of Funeral Directors (Law 12-261)
  • Board of Industrial Trades (Law 12-261)
  • Board of Professional Engineering (Law 12-261)
  • Board of Real Estate (Law 12-261)
  • Board of Real Estate Appraisers (Law 12-261)
  • Chief Procurement Officer
  • Citizen Complaint Review Board
  • Commissioner of the Department of Insurance and Securities
  • District of Columbia Emergency Management Agency (new name)
  • Local Business Opportunity Commission (new name)
  • National Capital Revitalization Corporation Board of Directors
  • Solid Waste Transfer Facility Site Selection Advisory Panel
  • Sports and Entertainment Commission (new name)
  • Advisory Commission on Outplacement (sunset)
  • Bicentennial Commission (repealed)
  • Board of Consumer Claims Arbitration (no review)
  • Board of Governors of the D.C. School of Law (repealed)
  • Board of Parole (repealed)
  • Business Incubator Advisory Board (repealed)
  • Business Regulatory Reform Commission (sunset)
  • Child Abuse and Neglect Children's Trust Fund (no review)
  • Commission on Aging (no review)
  • Commission on Latino Community Development (no review)
  • Commission on Men
  • Commission on Women (no review)
  • Criminal Justice Supervisory Board (no review)
  • Education in Partnership with Technology Corporation Board
  • Executive Director of D.C. General Hospital
  • Housing Production Trust Board (no review)
  • Make a Difference Selection Committee (no review)
  • Nuclear Weapons Freeze Advisory Board
  • Office of Emergency Preparedness (new name)
  • Office of Tourism (abolished)
  • Prison Industries Joint Venture Advisory Board (D.C. Law 12-86)
  • Public Fund for Drug Prevention and Children at Risk (no review)
  • Recreation Assistance Board (no review)
  • Sports Commission (renamed)
  • Task Force on Hunger
  • Tax Revision Commission (sunset)
  • UDC Board of Trustees Nominating Committee [CB-H & JB]

 


CONVERTING A RESOLUTION INTO AN EMERGENCY


This is a followup to the January 1997 issue concerning whether resolutions may be amended. Since that time numerous inquiries have been received asking whether a resolution that has been transmitted to the Council can be converted into an emergency resolution. The answer is "no" if the matter has been referred to a committee. A resolution, with certain limited exceptions, is referred to a committee. Once a resolution has been referred to a committee the only way that the Council can act on that resolution is upon a successful motion to discharge under Council Rule 414. Once there has been a successful discharge motion, the resolution can come before the full Council and be converted into an emergency resolution. A resolution that has been retained by the Council may be converted into an emergency resolution without violating any rules of the Council.

[CB-H]

 


MOTIONS THAT DELAY CONSIDERATION OF A MEASURE


The Council frequently uses motions to put off the consideration of legislation from the current meeting to a future date. This may be accomplished by one of three ways -- a motion to lay on the table, a motion to postpone to a day certain, and a motion to withdraw a measure. Council Rules 341(3), (7), and 408. With respect to a motion to withdraw a measure, Council Rule 408(c) allows the Chairman of a committee to put off Council consideration for one time only. In this case, the measure will automatically be placed on the agenda for the next regularly scheduled meeting. At the next regularly scheduled meeting, if a member wishes to delay Council consideration of the measure, it can only be done through a tabling motion under Rule 341(4) or (7).

A measure may be delayed because of the passage of a motion to postpone to a time certain. The effect of this is to delay the measure until a date certain. The measure will automatically appear on agenda for the legislative session on the date to which it has been tabled. For example, a motion to table until November 2, 1999, will automatically place the item on the agenda for the November 2, 1999, legislative session. If, however, a member wishes to have the measure considered before the date contained in the original motion to table, it can be accomplished by the passage of a motion to reconsider the original motion to table or a suspension of the rules. A motion to reconsider requires a majority vote while a suspension of the rules, under Council Rule 1003 requires a vote of 2/3rds of the members present and voting.

According to Robert's Rule of Order, a motion to postpone to a time certain is debatable while a motion to lay on the table is not. Occasionally, questions arise as to whether certain subsidiary motions can be applied to tabling motions. While a tabling motion may be in order for a motion to reconsider and a motion to amend, they are out of order if the underlying measure to which the reconsideration or amendment applies is not tabled. You cannot table an amendment, unless the measure to which it is attempting to amend is tabled as well. A motion to table in this situation would be out of order. [CB-H]

 

FYI


SPECIAL LEGISLATION


When legislation is enacted that specifically identifies individuals (including corporate entities) to which the legislation applies, to the exclusion of all other similarly situated individuals, the legislation may be prohibited "special legislation." Case law holds that the District of Columbia must, as do the states, comply with constitutional requirements.

Two forms of special legislation are local laws and private laws. Local laws apply to particular locations, while private law applies to particular individuals. "General legislation", by comparison, has the effect of treating all similarly situated individuals the same, and is uniform in its application.

Generally, special legislation, in whatever form, is prohibited when it violates the Equal Protection Clause of the 14th Amendment to the U.S. Constitution by treating similarly situated individuals unequally. The courts, however, do recognize exceptions to the special legislation doctrine. Legislation may legally result in "disparate treatment" of similarly situated individuals when the distinction does not involve a suspect class and rationally relates to a legitimate governmental function. Examples are private immigration laws and legislation which provides compensation to specific individuals , i.e. certain persons who have been wrongfully incarcerated. Legislation that identifies "categories" rather than names specific individuals is also generally constitutionally sound.

An example of prohibited special legislation would be a law which exempts a particular restaurant from health inspections, but requires inspection of all other restaurants, without a rational basis for the disparate treatment that relates to a legitimate governmental function. [JB]


RETROACTIVE LEGISLATION


Generally, a court "is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary." Bradley v. Richmond School Board, 416 U.S. 696, 711 (1974); Landgraf v. USI Film Products, 511 U.S. 244, 266-273, 1497-1501 (1994). Retroactive legislation is generally disfavored. Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 208 (1988).

A statute may, however, be applied retroactively if the statute is affecting remedies or procedures, and not substantive legal rights, unless a contrary legislative intent is shown. 2 Sutherland Statutory Construction, Norman J. Singer 41.04, p. 351 (5th ed. 1993); LXXXII Corpus Juris Secundum 993 (1953). It is generally agreed that a substantive law creates, defines, and regulates rights, while a procedural one prescribes the method of enforcing such rights or obtaining redress. Allen v. Fisher, 574 P.2d 1314, 1315 (Ct. App. Ariz. 1978). The rationale behind these principles is that changes affecting remedies have less potential for unfairness than changes in legal responsibilities or obligations. Persons have to be able to base their conduct on what they believe the law to be, and changing substantive law retroactively would confuse the expectations upon which persons acted. Id. Persons have a right to fair notice, reasonable reliance, and settled expectations. Landgraf v. USI Film Products, 511 U.S. 1483, 270 (1994).

Keeping the above general principles in mind, the following guidelines can be provided with regard to specific areas of the law, with regard to whether retroactive legislation is permissible:

Permissible retroactive legislation

Contracts: laws that change or take away contract remedies do not violate the obligation of contract so long as some remedy remains (Washington v. Maricopa County, 152 F.2d 556 (1945); Sutherland Statutory Construction 41.07, p. 391).

Administrative rules: administrative rules will not be construed to have retroactive effect unless there is express language stating so (Bowen v. Georgetown, 488 U.S. 204 (1988)).

Court cases which are pending: a statute will not be retroactively applied to pending cases, unless there is clear legislative intent to the contrary (Bradley v. School Board of Richmond, 416 U.S. 696 (1974)).

Attorney's fees: a statute which retroactively imposes attorney's fees is permissible, since this does not affect substantive rights and there is no increased burden imposed (Bradley v. Richmond School Board, 416 U.S. 696, 721 (1974)).

Tax legislation: tax statutes may be retroactive if the legislature clearly so intends; the Supreme Court has generally applied the Due Process Clause of the U.S. Constitution to determine whether tax legislation can be applied retroactively and has provided that the test to be applied is whether "retroactive application is so harsh and oppressive as to transgress the constitutional limitation." Welch v. Henry, 305 U.S. 134, at 147 (1938), quoted in U.S. v. Hemme, 476 U.S. 558, at 568-569 (1986) and U.S. v. Carlton, 512 U.S. 26, at 30 (1994); the Court in U.S. v. Hemme further articulated that one of the "relevant circumstances is whether, without notice, a statute gives a different and more oppressive legal effect to conduct undertaken before enactment of the statute.". Hemme at 568.

Impermissible retroactive legislation

Criminal law: retroactive law is not allowed with regard to criminal law (e.g. ex post facto laws: laws which retroactively impose or increase the severity of crimes; and bills of attainder).

Impairment of contracts: laws which impair the obligation of contracts are not allowed (U.S. Const., article I, 10)

Final court judgments: there is a separation of powers impediment to congressional attempts to reopen final court judgment and it is violative of Article III of the United States Constitution for legislation to require a federal court to reopen federal judgments in private civil actions (Plaut v. Spendthrift Farm, Inc., 115 S.Ct. 1447(1995)).

Statutes with an emergency clause: a statute that contains an emergency clause making it effective immediately (which would be unnecessary if its operation were retrospective) is an indication that the statute was intended to operate prospectively only (Chadwick v. Crawfordsville, 24 N.E.2d 937 (1940)).

Council clarification by subsequent legislation: even though subsequent legislation by the Council which declares the intent of earlier law is entitled to some weight in construing the statute, the subsequent legislation is not conclusive in determining what the previous legislature meant (West End Tenants v. George Washington Univ., 640 A.2d 718 (D.C. App. 1994); here, the court held that subsequent legislation passed by the Council could not be retroactively applied to clarify the definition of a particular term in a previous act).

While it is difficult to generalize and have a readily available definitive answer as to whether a particular piece of legislation can be applied retroactively, the above general principles are guidelines which one can look to begin to resolve this issue. As the issue of retroactive legislation arises, one should first determine whether there is a clear legislative intent allowing for retroactivity, make the determination that no clause of the U.S. constitution is being violated by allowing for retroactive application, and finally look to court precedent regarding the particular subject matter which is at issue. [BF]

 


THE ACTIONS NECESSARY TO END A CONTROL YEAR


The District of Columbia Financial Responsibility and Management Assistance Act of 1995, approved April 17, 1995 (109 Stat. 97; D.C. Code 47-391.1 et seq.) ("Control Act"), provides a procedure for the suspension of the activities of the Financial Responsibility and Management Assistance Authority ("Control Board") and the expiration of the terms of the members of the Control Board. See, D.C. Code 47-391.7. The suspension of the Control Board's activities is tied to whether the District is in a control year or a control period. A "control year" is "any fiscal year for which a financial plan and budget approved by the Authority under 47-392.2(b) is in effect . . . ." See, D.C. Code 47-393(4). Consequently, when the Control Board approves a District budget the Control Board must remain in existence for the 12-month period of the budget fiscal year. See, D.C. Code 47-392.2(b).

Section 209(b)(1) of the Control Act provides that the current control period will cease upon the certification by the Control Board that the District has access to the credit market and that the District has experienced four consecutive fiscal years of balanced budgets. See, D.C. Code 47-392.9(b)(1). By my calculation, the District could have four consecutive fiscal years of balanced budgets, at the earliest, at the end of fiscal year 2000 -- September 30, 2000. As I understand, the District experienced its first balanced budget at the conclusion of fiscal year 1997. The final 47-392.9(b)(1) certification cannot be made by the Control Board until after the Comprehensive Annual Financial Report ("CAFR") on fiscal year 2000 which would come shortly after February 1, 2001. See, D.C. Code 47-392.9(b)(2).

Assuming that the District continues to have balanced budgets until the end of fiscal year 2000 and the Authority's 47-391.7(a)(1) certification that all borrowings by the District have been repaid occurs by September 30, 2000, or at least before the Control Board must approve the fiscal year 2002 budget, the Control Board's activities can be suspended by September 30, 2001. The fiscal year 2001 budget process is scheduled to commence by February 2000 and thus will be approved by the Control Board prior to the District achieving the four years of consecutive fiscal year budgets. Consequently, the Control Board cannot expire prior to the conclusion of FY2001 which is September 30, 2001.

Even after the District is no longer in a control period, the Control Board Act prescribes certain duties to be performed by the Control Board until their activities are suspended pursuant to D.C. Code 47-391.7(a). See, D.C. Code 47-392.21. Those activities include reviewing the District's budgets after they have been adopted by the Council; preparing and submitting an analysis of those budgets to the Mayor, Council, President, and the Congress; and monitoring the financial status of the District government. Under the best scenario, these activities will cease and the terms of the Control Board members will expire on September 30, 2001.

The Control Board Act also provides a procedure for the triggering of a new control period. See, D.C. Code 47-392.9(a)). Upon the cessation of the Control Board's active involvement in the financial affairs of the District, a control period could again be triggered by: (1) the requisition of advances from the U.S. Treasury; (2) the failure of the District to provide sufficient revenue to a debt service reserve fund of the Control Board; (3) the District's default on any loans, bonds, notes, or other form of borrowing; (4) the failure of the District government to meet its payroll for any pay period; (5) the existence of a cash deficit at the end of any quarter in excess of the difference between the estimated revenues of the District and the estimated expenditures of the District government; (6) the failure of the District to make retirement payments; or (7) the failure of the District to make required payments pursuant to an interstate compact. See, D.C. Code 47-392.9(a). [CB-H]

 



D.C. CODE NOTES




NEW PUBLISHER OF THE DISTRICT OF COLUMBIA CODE

Beginning November 1, 1999, West Group, will be the licensed publisher of the District of Columbia Code. West Group succeeds The Michie Company (Lexis Law Publishing) which has published the Code since 1979 when the first noncumulative supplement to the 1973 edition of the Code was published under the direction of the Council of the District of Columbia. West Group has published annotated state codes for approximately 90 years and currently offers 27 printed annotated statutes. Annotations added to the Code under West Group's license will include references to American Law Reports (ALR), American Jurisprudence (AmJur), Corpus Juris Secundum (C.J.S.), and West's Topic and Key Number System.

Electronic access to an unannotated version of the Code will remain available to the public via a seamless link to West Group's server on the Council's web site.

Councilmembers and staff will be able to access an electronic version of the annotated D.C. Code which will be stored on the Council's server. Citations found in the text and notes to the annotated version will be "hyperlinked" to the West Law legal research service for additional analysis. West Group's annotated D.C. Code will not be available, however, until Spring 2000. For the next few months the Lexis Law Publishing version of the annotated D.C. Code should remain accessible to the Council.


PUBLICATIONS OF COUNCIL PERIOD XIII RULES IN THE D.C. CODE

The Council's Rules for Council Period XIII can be found in the 1999 Supplement to Volume 1 of the District of Columbia Code, at page 5, where amendments to the District of Columbia Home Rule Act appear. The Rules of the Council normally appear in the annual supplement to Volume 2 of the District of Columbia Code as a note to section 1-227. However, because Volume 2 has been published as a new replacement volume, no supplement has been printed this year. Therefore, the Council Rules for Council Period XIII appear in the supplement to Volume 1. Next year those same rules, with any amendments that the Council may make before publication of the 2000 supplements, will once again appear in the supplement to Volume 2. [BB]


DISTRICT OF COLUMBIA CODE 1999 ERRATA

The publisher of the District of Columbia Code, Lexis Law Publishing, will distribute errata materials to cover the omission of D.C. Law 12-265, the Establishment of Council Contract Review Criteria, Alley Closing, Budget Support, and Omnibus Regulatory Reform Amendment Act of 1998 and the full text of the District of Columbia Appropriations Act, 1999, approved October 21, 19998 (Public Law 105-277; 112 Stat. 2681[142]), which is published as a note to section 47-304 of the D.C. Code. This office expects that the errata sheets will be available by the beginning of November and will forward them to Council offices and agency heads shortly thereafter. [BB]


DISTRICT OF COLUMBIA CODE
ON THE WORLD WIDE WEB

The District of Columbia Code is available on the World Wide Web via the Council of the District's Home Page (http://www.dccouncil.washington.dc.us/).   Just click on the D.C. Code" button. [BB]


D.C. CODE 1999 REPLACEMENT
VOLUMES AND SUPPLEMENTS

If you have not yet picked up your 1999 Replacement Volumes and Supplements of the D.C. Code, there are a few still available. Please contact the Codification Counsel at 724-8026.

Sufficient numbers of 1999 Replacement Volumes and Supplements to supplement the complete 18 volume set have been delivered to Councilmembers and staff. If any Councilmember or Council staff is missing any of the 1999 Replacement Volumes (Vols. 2, 2A and 11) or any of the 1999 pocket parts (supplements), please notify the Codification Counsel. All replacement volumes from prior years have been distributed by this office. If any Councilmember wishes to obtain replacement volumes from prior years, you must contact the publisher at 1-800-446-3410. Individual volumes of the code cost about $35.00 each. [BB]






LITIGATION

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Wayne Turner v. D.C. Board of Elections and Ethics, et al,
(Civil Action No. 98-2634 RWR, September 17, 1999)

In Wayne Turner v. D.C. Board of Elections and Ethics, et al, (Civil Action No. 98-2634 RWR, decided September 17, 1999) the United States District Court for the District of Columbia decided that the Barr amendment did not prohibit the counting, releasing, and certifying of the vote on Initiative 59.

Plaintiffs commenced this action seeking a declaratory judgment that the "Barr Amendment", section 171 of the District of Columbia Appropriations Act for FY 1998, is unconstitutional to the extent that it bars the Board of Elections from counting, releasing and certifying the results of the referendum known as Initiative 59 which appeared on the ballot of the election held on November 3, 1998. Initiative 59, known as the medical marijuana initiative, was designed to allow chronically ill individuals to use marijuana without violating the criminal provisions of the D.C. Code. After the initiative had been certified by the Board as proper for placement on the ballot, Congress enacted the Barr Amendment as part of the Appropriations Act.

The Barr Amendment provided that no funds contained in the D.C. Appropriations Act could be used to conduct any ballot initiative which sought to legalize or reduce the penalties for the use of marijuana. Initiative 59 fell within the purview of the Barr Amendment. On November 3, 1998, District voters voted on the initiative because the ballots had been printed prior to the enactment of the Barr Amendment. Defendant D.C. Board of Elections and Ethics did not release the results of vote on Initiative 59 to avoid violating the Barr Amendment.

The question presented was whether counting, releasing, and certifying the results of the election is a part of conducting a ballot initiative. The Court held that the Barr Amendment did not preclude counting, announcing and certifying the results of the vote on Initiative 59.

The issues before the Court were the level of protection to be granted to votes lawfully cast on an issue properly placed before the voting public and the rights of the citizens of the District of Columbia to have made known the results of their votes properly cast on an issue properly placed on the ballot.

In reaching its decision, the Court considered whether Congress' plenary power over the District encompassed the power to prevent political speech in the form of the results of votes properly cast in a properly conducted ballot referendum. The exercise of Congress legislative power pursuant to the "D.C. Clause", Article 1, section 8 of the Constitution, may not contravene an provision of the Constitution of the United States. Consequently, the Barr amendment was found not to be exempt from First Amendment review.

The Barr amendment purported to restrict activity that involved voting by citizens of the District, an activity protected by the First Amendment as symbolic speech. Symbolic speech is characterized by communicative power such that it intends to convey a particularized message, and the great likelihood that the message would be understood. When the election results are released, the message of the vote is communicated by the public to the government. Core political speech refers to speech about political candidates or ideas, but not necessarily the vote itself. If a lawful vote and its results are the instrumentality that brings about social and political change, they should be given the same kind of protection as political speech.

The federal government advanced an argument based on "prospective repeal" contending that because Congress could have passed a law criminalizing drug possession, it could instead pass the Barr Amendment to prevent the conduct of Initiative 59. The Court in rejecting this argument found that although Congress had the means to prevent Initiative 59 from becoming law, it could not do by infringing on the First Amendment rights of District citizens. Initiatives become law after a 30 day Congressional review period during which Congress may pass a joint disapproval resolution. The current version of the Fiscal Year 2000 D. C. Appropriations Act section 167(b) states "The Legalization of Marijuana for Medical Treatment Initiative of 1998, also known as Initiative 59, approved by the electors of the District of Columbia on November 3, 1998, shall not take effect."

Because the Court's decision turned on its finding that the Barr Amendment did not preclude the counting, announcing, and certifying the results of the vote on Initiative 59, it did not decide the constitutional issues. Arguendo, had the Barr Amendment precluded the handling of the results of the vote on Initiative 59, it would have burdened core political speech, thus violating the First Amendment rights of District citizens. [CDL]

 

Hutchins, et al. v. District of Columbia
U.S. Court of Appeals for the D.C. Circuit No. 96-7239

On June 18, 1999, a decision was issued by the U.S. Court of Appeals for the District of Columbia Circuit finding, in a plurality opinion, that the Juvenile Curfew Act of 1995 was constitutional. In doing so, it reversed the October 1996 decision of the trial court (J. Sullivan) which had found the act unconstitutional on the grounds that it violated minors' Fifth Amendment equal protection and due process rights to free movement, parents' due process rights, and is not "narrowly tailored to further the compelling interests of the District in protecting District residents." (Op. at 5).(2)

The Court found that the act's objective to reduce juvenile victimization was enhanced by the inclusion of defenses in the act. In finding so, the Court concluded that "the eight defenses to the curfew strengthen the relationship between the curfew and its goal of reducing juvenile crime and victimization by narrowing the scope of the curfew. That is, the defenses . . . help ensure that the ordinance does not sweep all of a minor's activities into its ambit but instead focuses on those nocturnal activities most likely to result in crime or victimization." (Opinion in 21). Moreover, the Court found that the inclusion of these defenses strengthened, rather than diminished, a parent's authority over their children because they "allow the parents almost total discretion over their children's activities during curfew hours." (Opinion at 22).

Chief Judge Edwards, in his concurring opinion, disagreed with the Opinion of the Court with respect the type of situations involving parents that would constitute fundamental rights. Instead of limiting such rights as the Opinion of the Court did, to "only those activities that are within the home or involve the formal education of one's child" he found that "a nighttime curfew law implicates parents' rights to control the 'care,' 'nurture,' 'upbringing,' 'management,' and 'rearing' of their children, even if the law -- by definition -- regulates activity that takes place outside the home and school." (Edwards concurring opinion at 2 and 3, respectively). He agreed that the appropriate level of review is under the intermediate scrutiny analysis. Applying this standard, Judge Edwards agreed that the "curfew law is substantially related to the protection of minors from the dangers of juvenile crime." (Edwards concurring opinion at 6). He further found that "the D.C. law adequately accommodates parents' rights, because, although parents' decision making is not unfettered, the law allows parents great discretion in how to manage the activities of their children." Id. For these reasons, Chief Judge Edwards concurred in the conclusion of the Court that "the curfew is constitutional." (Edwards concurring opinion at 7).

Similar to Judge Edwards, Judges Wald and Garland disagreed with the conclusion that the act did not implicate fundamental rights of parents. However, they concurred with the opinion of the Court that the intermediate scrutiny is the appropriate level of review and that the act passes that scrutiny and thus is constitutional.

Judge Rogers concluded, as she had in the May 22, 1998, decision that the juvenile curfew act implicated fundamental rights held by juveniles to freedom of movement. (Rogers opinion at 4-12). However, she joined in the Opinion of the Court that the appropriate level of scrutiny was intermediate scrutiny. (Rogers opinion at 18). She again challenged the adequacy of the factual evidence relied on by the District to meet the stated objective of the law. Because of her finding of inadequacy with respect to the factual evidence, she concluded that the act did not meet the intermediate scrutiny standard and thus was unconstitutional.

Judge Tatel, in his dissenting opinion, agreed with Judge Rogers that the act implicated fundamental rights of juveniles. He, however, again as he had in the May 22, 1998 three-judge panel decision, concluded that for this reason the analysis should be based on strict scrutiny, which requires a legislature to have compelling reasons for its action. This is the highest level of scrutiny for legislation and is an almost impossible standard to meet. Upon applying this high standard of scrutiny, Judge Tatel concurred with Judge Roger's conclusion that the Juvenile Curfew Act was unconstitutional. [CB-H]

 

1. This case is now cited at 942 F. Supp. 665 (D.D.C. 1996).
2. The Opinion cited to a 4th Circuit decision that upheld a juvenile curfew in Charlottesville, Virginia which "had relied on a showing that Lexington, Kentucky had a successful juvenile curfew." (Opinion of the Court at 20).

 

* * *

James L. Taylor Trash Removal
v. District of Columbia

The lawsuit to enjoin the Solid Waste Facility Permit Amendment Act of 1998 which became effective on June 11, 1999 (D.C. Law 12-286) was dismissed without prejudice on September 1, 1999. The case of James L. Taylor Trash Removal v. District of Columbia, Civil Action No. 99-1551(TFH) raised constitutional issues contesting the summary closure due to imminent health and safety risks and sought a permanent injunction against enforcement of the Solid Waste Act as amended.

In granting the motion to dismiss filed by the District, the Court construed the complaint in the light most favorable to the plaintiff, and gave the plaintiff the benefit of all inferences derived from the facts as alleged. Plaintiff's claims against the District were found to be insufficient as a matter of law.

Plaintiff raised issues under 1983 and 1985 of the Federal Civil Rights Act. Under 1985, Taylor Trash Removal was required to prove a conspiracy by the agents and officials of the District government. The Court found that the District employees and officials acting within the scope of their employment constituted a single entity for purposes of 1985. The claim was dismissed because, as a matter of law, there can be no conspiracy if the conduct complained of was essentially a single act by a single entity.

Plaintiff's 1983 issue alleged a deprivation under color of state law of a constitutional or federal statutory right. Taylor Trash Removal was required to prove the existence of a government policy that deprived it of a constitutional right. The 1983 and Fifth Amendment claims failed because there is an extensive review process which permitted plaintiff to challenge adverse actions by the District. Plaintiff made use of this process in it's pending litigation before the Board of Zoning Adjustment.

The claim of an unconstitutional taking because the District's regulations allegedly precluded Taylor Trash Removal from conducting its business was ruled to be premature. Plaintiff's claim that the Solid Waste Permit Act violated the Commerce Clause because the Act allegedly discriminated against interstate commerce was rejected because Plaintiff failed to sufficiently allege that the regulations were protectionist. The Court declined to consider Taylor's claim that the Act violated the Home Rule Act because that issue had not been properly raised. The Court rejected allegations of abuse of process and malicious prosecution because those issues were not properly pleaded. The lack of a final proceeding supported the Court's ruling against Plaintiff on it's claim that the District's administrative proceeding constituted an abuse of process

In granting the District's Motion to Dismiss, the Court found that the Plaintiff had failed to exhaust its administrative remedies, and had failed to plead sufficient facts to support many of its claims. Taylor's pending litigation before the Board of Zoning Adjustment provided the factual basis for the Court's decision that Taylor had not exhausted it's administrative remedies because the administrative proceedings were not final. [CDL]

   

* * *

 


LEGISLATIVE DRAFTING TRAINING

Several legislative drafting training sessions were offered by this office this year -- January, February, March, April, June, September and October. The last training for this year will be held on November 9 and 10, after which no more training sessions will be given until February or March 2000. Please read your e-mail to receive notice of future legislative drafting training sessions. If you are a new employee of the Council who is responsible for drafting legislation and you were unable to attend one of the legislative drafting sessions, please alert this office as soon as possible and make arrangements with the Legislative Counsel, Brian Flowers, for a brief orientation on the Council rules and the drafting rules for District legislation. He may be reached by calling: 724-8026. [CB-H]


LEGISLATIVE DRAFTING TIPS:

[CB-H]


OFFICE OF THE GENERAL COUNSEL
ATTORNEY COMMITTEE
ASSIGNMENTS

The attorneys in the Office of the General Counsel have the following Council Committee assignments for Council Period XIII:
 
  • Consumer and Regulatory Affairs
    Donald Kaufman
  • Economic Development
    Donald Kaufman
  • Education, Libraries, and Recreation
    Johnnie Barton
  • Finance and Revenue
    Donald Kaufman
  • Government Operations
    Johnnie Barton
 
  • Human Services
    Christine LeFlore
  • Judiciary
    Christine LeFlore
  • Local and Regional Affairs
    Brian Flowers
    (until vacancy is filled)
  • Public Works and the Environment
    Johnnie Barton
  • Committee of the Whole
    Benjamin Bryant
    (until vacancy is filled)

In addition to the above, Ben Bryant serves as the Council Codification Counsel and Brian K. Flowers serves as the Council Legislative Counsel. For the members who do not chair committees: Donald Kaufman is assigned to inquiries from Councilmembers Phil Mendelson and Jim Graham and Johnnie Barton is assigned to inquiries from Councilmember Vincent Orange. In addition, Benjamin Bryant will advise on contracts. The general office number is: 724-8026. The Secretary is Ada Arrington and the Codification Assistant is Karen Westbrook. [CB-H]

 


WELCOME ABOARD AND FAREWELL

On June 7, 1999, Donald S. Kaufman joined the Office of the General Counsel as an Assistant General Counsel. A long-time resident of Foggy Bottom, he received a B.S. degree in Economics from the Wharton School of Finance and Commerce of the University of Pennsylvania and a Juris Doctor degree from George Washington University Law School where he graduated with honors. He is a member of the bars of the District of Columbia, Maryland, Florida and New York.
Mr. Kaufman has worked in law firms, in public accounting, as corporate counsel, and for research organizations. He has had substantial experience in business and commercial matters, including taxation, securities, real estate, and litigation. Such experience covers a broad spectrum of corporate and commercial transactions, ranging from corporate asset and stock acquisitions and sales and tax-sheltered securities offerings to day-to-day contract matters, leasing, trademarks, administrative and regulatory matters, and corporate functions. The projects he has worked on have included real estate, research and development, natural resources, and operating business ventures. He has also been involved in litigation in support of his business clients and has experience in every stage of litigation, including several trials.

Such experience will be utilized as he reviews tax and securities matters coming out of the Council Finance and Revenue Committee and consumer and regulatory affairs-related legislation from the Consumer and Regulatory Affairs Committee. His assignments will include coverage of the Committee on Finance and Revenue, the Committee on Consumer and Regulatory Affairs, the Committee on Economic Development, and responding to inquiries from Councilmembers Mendelson and Graham. He will also be involved with litigation matters and drafting legal opinions. Welcome aboard Donald. [CB-H]



On August 20, 1999, Britta Farahati left the Office of the General Counsel for employment with the federal government. She joined the Office of the General Counsel on July 7, 1997, to fill a vacancy created by the departure of Stephen Taylor. Her assignments included coverage of the Committee on the Judiciary, the Committee on Economic Development, the Committee of the Whole, and the Committee on Local and Regional Affairs. She also served as the editor of this newsletter. During her tenure she worked on many major pieces of legislation involving business improvement districts, compensation settlements that were reported out of the Committee of the Whole, bills on Advisory Neighborhood Commissions, Drug House Abatement, Juvenile Curfew bills, as well as the unforgettable Official Dinosaur Act. Her keen eye for details and thorough review of legislation and her overall professionalism as an attorney will be greatly missed. We know that she has taken the same eye for detail and professionalism to the Internal Revenue Service where she will help the IRS ferret out wrongdoing and help the public to become more knowledgeable about the national tax laws. Good luck Britta! [CB-H]

Editor:
Charlotte Brookins-Hudson

Contributors:
Charlotte Brookins-Hudson, Brian K. Flowers,
Benjamin Bryant, Johnnie Barton, Britta Farahati and Christine LeFlore

Editorial Assistant:
Karen Westbrook