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OFFICE OF THE GENERAL COUNSEL LEGALESE


September 2000 Council of the District of Columbia Vol. 6, No. 2


|| District of Columbia Appropriations Act, 2001 || Federal Legislation Impacting D.C. || Suspension of Financial Authority ||
|| Extension of Expedited Contract Review || Litigation - Two Reading Rule || Litigation - D.C. Voting Rights || Litigation - Cable Franchise ||
|| Prospective Mayoral Appointments ||Ethics Matters || End of Council Period XIII ||
|| Attorney Assignments || Welcome Aboard || Editors ||

INSIDE THIS ISSUE

DISTRICT OF COLUMBIA APPROPRIATIONS ACT, 2001

Highlights of the D.C. Appropriations Act, 2001 now pending before Congress

FYI

SIGNIFICANT FEDERAL LEGISLATION

LITIGATION

ETHICS MATTERS

OTHER MATTERS

REMINDER

OGC ATTORNEY COMMITTEE ASSIGNMENTS

WELCOME ABOARD - JOHN HOELLEN

D.C. APPROPRIATIONS ACT, 2001
Highlights of the District of Columbia Appropriations Act, 2001
now pending before Congress

On July 25, 2000, the House Committee on Appropriations ("Committee") considered the District's Fiscal Year 2001 budget request, in the form of H.R. 4942. The budget requested by the District included $445,425,000 in federal funds and $6,691,932,389 in District of Columbia funds. At 4:41 p.m., on July 26, 2000, the Committee of the Whole House on the State of the Union rose, leaving the District's budget as unfinished business. The House considered H.R. 4942 as unfinished business on September 14, 2000, passing the legislation 217 to 207. As of the printing of this newsletter, the Senate has yet to vote on the legislation, S. 3041.

In its report that accompanied HR. 4942, the Committee on Appropriations recommended a budget that included $414,000,000 in federal funds and $6,658,271,000 in District funds. The Committee report on H.R. 4942 raised concerns about the failure of the Control Board to "ensure the timely completion of the [CAFR]." The Committee stated that the "complacency and inaction by the Authority as well as the District's Inspector General are unacceptable."

Regarding the Public Benefit Corporation, the Committee determined that loans the District and Control Board authorized to the PBC over a 30- month period were "unauthorized and unapproved spending" and questioned the legality of the actions.

Following are some of the changes to the District's budget request recommended by the Committee.

Budget amount

The Committee's recommended budget represents a decrease of $31,425,000 in federal funds (7 %) and $33,661,389 in District funds (1/2 %).


Special authorization for the CFO

The Committee recommended (sua sponte) an authorization of $1,500,000 for the Chief Financial Officer for programs which would seem normally to be under the purview of the Mayor. The funds are available to the CFO for a mentoring program, hotline services, a youth development program, a program to assist homeless individuals, and a trash rack system program at the Hickey Run stormwater outfall. The Committee also requested that the District conduct a review of property within the District that is currently listed as tax-exempt.

Reduction in resident tuition

The Committee reduced the federal payment for resident tuition support by $ 4,000,000 to meet actual FY 2000 expenditures.

Reduction in authorization to the Courts

The Committee reduced the payment to the District of Columbia Courts by $3,500,000 (3.4%), which still represents a $2,786,000 increase from last year's budget for court operations, but a decrease of $3,000,000 for capital improvements. The Courts found themselves on the other side of the judicial bench, when the Committee disagreed with the Joint Committee on Judicial Administration's conclusion that the Courts had not violated the Antideficiency Act. The Committee agreed with a report by the General Accounting Office which determined that the D.C. Courts overobligated their FY 1998 appropriation when they retained and spent money earned as interest on federal funds. The Committee determined that the D.C. Courts incorrectly cited to the United States Code in reaching its conclusion.

Crime victims compensation fund
transfer to the Mayor

The Committee rejected the provision of the budget request that would make Justice Grants Administration in the Executive Office of the Mayor the recipient of certain moneys from the fund instead of miscellaneous receipts of the Treasury of the United States, but stated that it would work with the District to ensure that the fund is used for the benefit of victims of crime.

Criminal Justice Act reduction

Although the Committee expressed concern regarding the adequacy of the funding for the Criminal Justice Act to ensure payment to attorneys representing clients in the criminal justice system, it reduced the District's request by $ 4,000,000 (10%), which still represents an $1,051,000 increase over the FY 2000 appropriation.

Increase in authorization for Court Services

Citing the excellent work of the Court Services and Offender Supervision Agency, the Committee recommended an increase of $17,225,000 over the District's request to improve supervision, drug testing, intervention and treatment.

Money for Washington Interfaith Network

The Committee committed $1,000,000 (sua sponte) to the Washington Interfaith Network to reimburse WIN for costs incurred in carrying out preconstruction activities at the former Fort Dupont Dwellings and Additions.

New York Avenue Metrorail reduction

The Committee reduced the District's request for Metrorail construction at the intersection of New York Avenue and Florida Avenue, Northeast, by $22,000,000, but funded the construction via a transfer of $22,000,000 from interest earned on federal and other funds held by the Control Board on behalf of the District.

Money for simplifying personnel policies

The committee recommended appropriations of $250,000 (sua sponte) to the Office of the Mayor to study and design a system, approved by the Comptroller General, for simplifying the administration of the personnel policies.

Money to study lack of reciprocity
on income earned in District

The Committee recommended appropriations of $100,000 "for a study analyzing the amount of revenue obtained by other jurisdictions on the personal income of residents earned within the District of Columbia and analyzing the lack of reciprocity between the District and nearby jurisdictions on the personal income earned in other jurisdictions, and for the negotiation of tax compacts to remedy the lack of reciprocity."

Brownfield Remediation reduction

The Committee eliminated the $10,000,000 requested for the Brownfield Remediation at Poplar Point because it concluded that the plan submitted contained insufficient detail regarding the expenditures.

National Museum of American

Music reduction

The Committee reduced the District's budget request for the establishment of a National Museum of American Music by $2,750,000 (92%). The appropriation requires a two-to-one match by the private sector before any disbursements may occur. The Committee plans to revisit this appropriation after gauging the degree of private sector support in order to assess the viability of continued public contributions.


DISTRICT FUNDS


Reduction in Control Board's budget

The Committee recommended slashing the Control Board's requested budget from $6,500,000 to $3,140,000 justifying the cut by stating that "[t]he control board has once again failed to provide the minimum level of justification material. The control board should set an example for the District government in how to prepare budgets that managers can use to evaluate their performance. The audacity of requesting a budget that is more than double that of the previous year with little or no written justification, for a year when the control board will be winding down, speaks volumes."

Small purchase procurement authority for OCTO

The Committee provided the Office of the Chief Technology Officer with small purchase procurement authority of $500,000, like the authority provided for the police department, to assist the office in completing the citywide telecommunications and data access infrastructures.

Charter School amendments

The Committee made a number of changes to the congressionally enacted charter school law.

First, concerning the two statutes that control the establishment of charter schools in the District of Columbia, the Committee included language in the appropriations act that makes unenforceable any law that duplicates or is inconsistent with the congressionally enacted charter school law. One possible interpretation of this new amendment would be that the only provisions of the charter school law enacted by the Council that would be enforceable would be those that augment the federal charter school law.

Second, the amendments give charter schools priority over commercial bidders in acquiring surplus school buildings.

Third, the new law changes the way charter schools must award contracts with a value of over $10,000 by limiting the provision to procurement contracts, shortening the time in which procurement contracts need to be advertised and reviewed, increasing the limit to $25,000, and placing the contract review process under the jurisdictions of the authorized chartering boards.

Fourth, the new licensing provisions for preschool or prekindergarten programs will put the charter schools on equal footing with the other D.C. Public Schools. Charter schools will be subject to licensing requirements to the same degree as the other D.C. Public Schools.

General Provisions in the appropriations act

The Committee chastised District employees who labored to streamline the budget request act by eliminating the 70 or so "general provisions" traditionally tacked onto the end of the District appropriations act. The Committee suggested that "District officials, including budget and legal staff, find more productive ways to spend their time and taxpayer funds."

In the end, the Committee approved 25 of the District-initiated deletions to the "general provisions" and added 18 new provisions.






FYI:


THE SUSPENSION OF ACTIVITIES OF THE FINANCIAL AUTHORITY


In the October 1999 issue of Legalese there is a comprehensive article on the actions necessary to end a control period. The end of a control period will lead to the suspension of the activities of the Financial Authority. Since that article, the Financial Authority issued an order in which it certified that three of the four conditions necessary to end a control period have been met by the District. On September 20, 2000, the Financial Authority stated that the only outstanding certification that it needs to make involves information to confirm the existence of the fourth consecutive year of a balanced budget for the District. That information will be contained in the CAFR (Comprehensive Annual Financial Report) on fiscal year 2000 which will be issued sometime around February 1, 2001. See D.C. Code 47-392.9(b)(2). [CB-H]




COUNCIL STREAMLINED REVIEW OF CONTRACTS


The Council has extended the sunset date for the streamlined procedure for Council review of contracts. That deadline has been extended from December 31, 2000 to December 31, 2002. See, Section 102 of the Fiscal Year 2001 Budget Support Emergency Act of 2000 and the Fiscal Year 2001 Budget Support Act of 2000. An article that summarized the streamlined procedure for Council review of contracts was published in the October 1999 issue of Legalese. [CB-H]


SIGNIFICANT FEDERAL LEGISLATION


Electronic Signature (E-Sign) Legislation Approved



On June 30, 2000, President Clinton signed the Electronic Signatures in Global and National Commerce Act ("E-Sign"), Public Law 106329, which brings us closer to a paperless society. The act will go into effect on October 1, 2000. It modernizes contract provisions by allowing electronic records and signatures to be treated the same as written signatures or documents for records relating to certain transactions in or affecting interstate or foreign commerce. Consequently, even though a statute or regulation requires a written signature or document, upon the occurrence of certain conditions, a contract entered into electronically will be given the same effect (same rights and privileges) as any written contract. For the consumer, this means that where there is a statute, regulation or other rule of law that requires written notification of some action that notice can be provided electronically. A primary situation where this would occur is in the context of insurance policies. If a District resident purchases life insurance from a nonDistrict company, and the policy requires that written notification be given within a certain period of time to cancel a policy, an electronic notification would satisfy the requirement. To the extent a law requires that a contract or other record be in writing or signed, an electronic signature or document is acceptable only when the consumer has affirmatively consented to the use of electronic records. In order for a consent to be valid, prior to the consent, a consumer must:

Although the Act specifically requires the consumer's consent and confirmation of the consent, 101(c)(3) of the Act seems to undermine that requirement since it states that the failure to do so does not affect the validity or enforceability of the contract.

Section 101(g) of the Act contains a special rule on how electronic records can meet statutory or regulatory requirements of notarization, acknowledgment, verification, or oath. This requirement can be satisfied "if the electronic signature of the person authorized to perform those acts," along with other required information, "is attached to or logically associated with the signature or record."

Limited State Exemptions from

Federal Preemption

States are not preempted from adopting legislation pertaining to electronic signatures and records only if they adopt:

Exempted matters:

The Act exempts the following types of contracts and matters from its application:

Applicability of Act to State Governments

Currently, Bill 13-606, the Uniform Electronic Transactions Act ("UETA"), is pending at the Council. This act recognizes electronic transactions, in addition to paper transactions, with electronic signatures and is clearer and more comprehensive than the federal E-Sign legislation. If the Council adopts UETA, that law, rather than the federal E-Sign legislation, will control the use of electronic records and signatures in the District for interstate or foreign commercial transactions.

To the extent that a state does not adopt UETA or legislation that is consistent with this Act, 104 of this Act expressly states that it does not supersede any requirement that records be filed with a state regulatory agency "in accordance with specified standards or formats."

In the absence of the adoption of UETA by the District, my understanding is that the federal legislation would require that each District act that requires notice in writing for interstate or foreign commercial transactions must allow for the electronic notice and signature. For example, if an act currently requires that a person be given notice in writing, you would revise the language to state that the person shall "give notice in a record." The word "record" is defined in 106(6) of E-Sign to include both written information and information stored in an electronic or other medium that is retrievable in perceivable form. [CB-H]

Federal Tax Relief for District Residents
and Businesses

H.R. 4358, the Omnibus District of Columbia Tax Incentive Recovery Act of 2000, was introduced in the House of Representatives on May 2, 2000, by Congressional Delegate Norton. This measure has been referred to the Committee on Ways and Means. Title I of the bill is entitled the "District of Columbia Nonresident Tax Credit Act of 2000." That provision requires that nonresidents who earn wages in the District be assessed a 2% tax on that income as long as they would be entitled to a corresponding tax credit in that amount and that 2% be withheld from the net earnings of self-employed persons in the District. It would require District employers and every nonresident partner and sole proprietor of unincorporated businesses to make the necessary withholding. If adopted, Title I will bring the District closer to being treated similarly to other states and cities. Every state and most major cities in the United States have the right to tax income that is earned within their borders. However, in the past the Congress has continuously restricted the ability of the District to tax all income earned within the District and denied the District a right that many other cities and states exercise. No other city in the United States, other than the District, is prohibited by law from taxing the income nonresidents earn in their jurisdictions. The inability of the District to tax the income of nonresidents, who earn two-thirds of all income earned within the District, and the expense of funding municipal services which also serve nonresidents, has had adverse affects on the economy of the District. This legislation will bring needed revenue for necessary improvements and will help to enhance services to a level that is worthy of the nation's capital. This proposal offers a creative approach to address an inequity without affecting the revenue stream of any other locality.

Title II of that Act, which is entitled the "District of Columbia City-Wide Enterprise Zone Act of 2000" would treat the entire city as an enterprise zone for purposes of the Internal Revenue Code.

Title III of that Act, which is entitled the "District of Columbia Economic Recovery Act," would impose a flat 15% federal income tax, minus certain monetary exemptions on the income of District residents.

Title IV of that Act, which is entitled the "District of Columbia $5,000 Homebuyer Credit Act of 2000" is the permanent version of the federal first-time District homebuyer $5,000 credit which has a sunset of January 1, 2002. [CBH]




LITIGATION


COUNCIL SECOND READING REQUIREMENT

The plaintiff in Dino Joseph Drudi v. D.C. Board of Elections and Ethics, et al., Civil Action No. 4716-00 (Judge Bayly) challenged the Council's adoption of the School Governance Charter Amendment Act of 2000 (Bill 13-469; Act 13395) on the ground that an additional reading was required. Section 412(a) of the District Charter requires, in relevant part, that acts of the Council, other than emergency and budget acts, be read "twice in substantially the same form." The Council voted favorably on the School Governance Act on three separate occasions -- January 18, 2000, February 1, 2000, and February 17, 2000. Plaintiff argued that, despite the fact that Bill 13-469 was read on three separate occasions, it was not read "twice in substantially the same form" because of the existence of two provisions in the February 17, 2000, re-enrolled version, that did not exist in the engrossed or enrolled version of the bill. One provision purported to authorize the Council to create a state education agency, while the other allowed the determination, with respect to the composition and method of selection of members of the Board of Education, to be based on local law after the law sunsets in four years.

On May 2nd, the General Counsel filed a response with the Board of Elections and Ethics to a complaint made by Mr. Drudi alleging the procedural violation of the two-reading rule. On that same day, we made an appearance at an evening hearing on the matter. The BOEE rejected this argument for lack of jurisdiction. Mr. Drudi, on the eve of the special election scheduled for the charter amendment, filed a request for TRO in the Superior Court. On June 22nd the trial court (Margaret Haywood) granted a TRO enjoining the counting of the ballots for the June 27th special election. An immediate appeal was noted to the D.C. Court of Appeals and oral argument was heard on Friday night June 23rd (Judges Ruiz, Reid, and Washington). Counsel for the District and counsel for the Council argued in favor of sustaining the law and reversing the grant of the TRO. The Court of Appeals issued an order during the early morning hours of Saturday, June 24, 2000, reversing the grant of the TRO. Mr. Drudi continued his complaint for declaratory judgment relief before Judge Bayly who, on June 30th, set a motions schedule and argument schedule, with the Council's motion in opposition to the motion for summary judgment due Friday, July 7th.

Plaintiff filed a motion for summary judgment to declare the law void, and counsel for the District and counsel for the Council filed separate opposition to plaintiff's motion and moved, alternatively, for summary judgment to sustain the law. Counsel for the District argued that plaintiff lacked standing to raise this issue because he had not demonstrated that he had been personally harmed by the alleged impropriety. Counsel for the Council argued that neither provision was a significant change because: (1) the Council had the power, pursuant to section 404(b) of the District Charter, to create a state agency; (2) the sunset provision was discussed at length during the January 18th and February 1st earlier readings of the bill; (3) the purpose of the two-reading requirement, to give the public ample notice of action that will be taken by the Council, was met by the series of public hearings held by the Council before and after the introduction of the school governance charter amendment bill, and the notices published in the D.C. Register, which made the public aware that the Council was considering options involving the size and composition of the Board of Education, not just for this year but for years to come; and (4) considerable deference should be given to the ruling of the Chairman that an additional reading was unnecessary particular when, as in this case, the issue involves the application of a charter provision that pertains to a procedure to be followed by the legislative body.

The court denied the plaintiff's request for summary judgment and instead granted summary judgment to the District and the Council. The court addressed the standing issued by finding that the plaintiff failed to allege "a palpable injury that he suffers or is about to suffer" since the sunset provision will not deprive the plaintiff "of a vote for the next four years" and thus his alleged injury of a denial of a right to vote on any future changes to the school governance structure is "too remote in time and in consequence to confer on plaintiff the sort of standing recognized in the case law." (Op. at 7). Although the court could have ended the opinion with its ruling on the standing issue, it addressed the substantive issue of whether plaintiff had sustained his contention that the Council had violated the two-reading requirement of the District Charter in adopting the School Governance Act. The court found that "although [the bill] passed through various formulations, the fundamental character and intent of the proposed legislation did not alter" and thus the bill was substantially the same proposal on final reading as on earlier readings. (Op. at 9). In particular, the court found that the inclusion of the four-year sunset provision in the final version of the bill "can scarcely be deemed supposititious or startling" in light of the fact that it was discussed at length during the four-hour debate of the measure at the February 1st second reading of the bill. (Op. at 11). With respect to the addition in the final version of the bill of the provision that authorized the Council to establish a state education agency, the court ruled that it was simply a reflection of "the Council's clear power to create such an agency or instrumentality, 1 D.C. Code 227(b)." Id. The court found that "[c]omity, finally, as well as common sense, cautions the Court not to enter rashly into the legislature's province . . . the Court should not refuse all deference to the legislature's competence or to its conduct of legislative affairs." (Op. at 12). For these reasons, the court concluded "that passage of the Act offends no constitutional or statutory provisions and that plaintiff's assault, albeit forcefully presented, must fail." (Op. at 13). (CBH)



D.C. CONGRESSIONAL VOTING REPRESENTATION


In March, the United States District Court issued a decision in the case of Lois E. Adams, et al. v. William Jefferson Clinton, et al., Civil Action Nos. 98-1665 and 983187, involving Congressional voting representation for the District. The majority opinion in the 3-judge panel decision (Judges Garland, Oberdorfer and Kollar-Kotelly) only decided the issue of whether "an apportionment of congressional districts that fails to account for the District of Columbia and its residents" is constitutional. (Slip op. at 7). For jurisdictional reasons, they remanded to Judge Oberdorfer for resolution the claims involving whether District residents' lack of the right to vote for U.S. Senators was a violation of equal protection and the right to a republican form of government (17th Amendment), as well as the claim that "Congress' continuing exercise of exclusive authority over matters of local concern, particularly their challenge to the existence of the Control Board" violated the Constitution.(1)

I. The Plaintiffs Have Standing to Bring the Claims.

Prior to ruling on the merits of the apportionment issue, the 3-judge panel decided that the plaintiffs had standing to bring the claim based on the fact that: (1) plaintiffs' claim of "lack of representation in the House satisfies the 'injury in fact' requirement," Slip op. at 9-10; (2) there was a causal connection between the lack of the Secretary of Commerce to count the District's population in his report (following the decennial census) to the President on the total population of each state for purposes of congressional apportionment, Slip op. at 10-11; and (3) the injury and the conduct complained of could be redressed by a favorable decision, even though the court may not enjoin the President, primarily because there had been no suggestion that the President or House officials would not follow the decision of the court, Slip op. at 12 & 16.

In addition, the court found that the lack of the presence of a Maryland election official as a defendant did not pose an obstacle to the court fashioning a remedy for the alleged complaint. The court reasoned that:

Although there is no guarantee that Maryland officials would permit District residents to vote there even if we directed the Secretary to count them as Maryland citizens for purposes of apportionment, the fact that officials who are not parties to these cases are in a position to thwart one of many potential remedies does not defeat our jurisdiction . . . a remedy could be crafted that would not necessarily rely on Maryland's electoral machinery. Slip op. at 18-19.

The court concluded that the plaintiffs "have standing to raise claims challenging the constitutionality of the exclusion of the District of Columbia from the apportionment of congressional districts." Slip op. at 19.

II. Article I of the Constitution Does Not Guarantee the Right of District Residents to vote in Congressional Elections Because the District is not a State.

A. The plain language of the Constitution and judicial precedents do not support a finding that the District is a "State."

The court devoted several pages of discussion to the issue of whether the District is a state for the purposes of the Constitution. Although case law has treated the District as a state for some purposes, slip op. at 2133, no cases have ever found the District to be a state for purposes of Article I of the Constitution. Throughout Article I there are references to the rights of "states." See Section 2 ("House of Representatives shall be composed of Members chosen every second year by the People of the several States, and the Electors in each State shall have the qualifications requisite for Electors of the most numerous Branch of the State Legislature") and Section 3 "The Senate of the United States shall be composed of two Senators from each State [chosen by the Legislature thereof,] for six years; and each Senator shall have one Vote.").

In this case, the court focused on the "State Legislature" language contained in Article I, Section 2. It stated that the District never had a "State Legislature", other than Congress, until the Home Rule Act in 1973, which created an elected Council and Mayor form of government. Slip op. at 24 & n. 19. Despite this finding, the Court, relying on Clause 17 of Section 8 of Article I, which is commonly known as the "District Clause" of the Constitution, found that since the Congress has the power to "exercise exclusive Legislation in all Cases whatsoever" over the District of Columbia, and that the Congress cannot be considered a State Legislature for these purposes, that the District could not be a state. Slip op. at 2436.

Moreover, the court found that "[i]ncluding the District within the definition of 'state' is also inconsistent with the provisions of clause 3 of Article I, section 2, which provides that 'Representatives . . . . shall be apportioned among the several States which may be included within this Union, according to these respective numbers.'" Slip op. at 26. (Emphasis supplied in decision). In examining the usage of the word "States" in the Constitution, the district court found that states in the context of Article I meant one of the original states or a state that had been admitted by Congress to the union. Id.; Slip op. at 39.

For these reasons, the court concluded that "the Constitution does not contemplate that the District may serve as a state for purposes of the apportionment of congressional representatives." Slip op. at 30.(2)

B. There is no residual right to allow District residents to vote in Maryland.

The court rejected plaintiffs' argument that District residents should be allowed to vote in congressional elections through the State of Maryland because the "residents of the land ceded by Maryland apparently continued to vote in Maryland elections during the period between the Act of 1790, by which Congress accepted the cession, and the Organic Act of 1801, by which Congress assumed jurisdiction and provided for the government of the District." Slip op. at 43. The rejection was based on several grounds. First, the court found that this argument was precluded by precedent, which had already decided the issue against District residents who had made similar arguments. Slip op. at 43-45. The court found that District residents were allowed to vote in Maryland congressional elections during the period 1790 to 1801 because Philadelphia was the "seat of government" during that interim period. The District only became the "seat of government" when Congress adopted the Organic Act of 1801, giving Congress exclusive authority over the District. Until 1801, District residents were considered to be "actual citizens" of Maryland, not "residual citizens" of Maryland, and thus were entitled by nature of their Maryland citizenry to vote in Maryland congressional elections. Slip op. at 50.

C. Caselaw allowing residents of a federal enclave to vote in the state from which the enclave was created does not allow District residents to vote in Maryland.

The court also rejected plaintiffs' argument that the case of Evans v. Cornman, 389 U.S. 419 (1970) allows District residents to vote in the Maryland congressional elections. Slip op. at 56. That case involved the validity of a Maryland residency requirement that prevented persons living on the grounds of the National Institute of Health from voting in state and federal elections. The Supreme Court struck down this law as violative of the 14th Amendment 's Equal Protection Clause. In finding that NIH residents had a right to vote in Maryland elections, the court looked at the fact that such residents were required to have Maryland driver's permits and license plates, could send their children to Maryland public schools, could sue in local Maryland courts like other Maryland residents, and had other rights and benefits of Maryland residency. The court stated that, although NIH and the District are both federal enclaves, Congress has never sought to exercise "that authority over NIH" but rather that type of authority had been exercised by the State of Maryland. Slip op. at 59. In that situation, Congress had ceded some authority back to Maryland with respect to NIH, but has never made the same concession with respect to the District of Columbia. For this reason, the court concluded that the holding in Evans was not equally applicable to the District.

D. The denial of Congressional voting representation for District residents is not a violation of the Equal Protection Clause of the Constitution.

The Equal Protection Clause of the Constitution applies to the District through the Fifth Amendment, not the Fourteenth Amendment. Slip op. at 63 & 26 n. 21. The court's rejection of the equal protection claim was based on its finding that such a claim was only applicable to "classifications drawn by executive and legislative authorities," which this claim is not based on. Rather, this claim is based on the Constitution itself, which confers the right to vote on select persons. Slip op. at 64.

III. The Lone Dissenting Opinion of Judge Oberdorfer Finds that District Residents Have a Constitutional Right to Vote in Congressional Elections Because that Right was Secured By Their Votes Cast Between 1790 and 1801.

Judge Oberdorfer concurred in the majority opinion with regard to the standing and jurisdiction issues. However, he departed with the majority with respect to the constitutionality of denying District residents the right to vote in congressional elections. [CBH]




DEDICATED TAX FOR THE WASHINGTON CONVENTION CENTER LITIGATION


Oral argument was held September 8, 2000 at 9:30 a.m. before the United States Court of Appeals for the District of Columbia for the appeal of the dismissal of an action challenging the sales, use, and occupancy taxes for the financing of the new Washington Convention Center. On August 12, 1999, the United States District Court for the District of Columbia, in Jenkins et al. v. Washington Convention Center, et al., Civil Action No. 983404, held that it did not have jurisdiction to hear the suit as the Federal Tax Injunction Act bars such actions in federal court where, as in the District, there is a remedy in the local courts.

In 1994, in response to the need of the District for a larger convention center, the Council created the Washington Convention Center Authority, governed by a Board of Directors, and provided for taxes which would be used to finance the new center. It also provided that such taxes would expire in two years if the Board did not submit final financial requirements and a feasibility analysis to the Mayor and the Council. When it became evident that the Board would not meet the deadline, the Council passed emergency legislation delaying the deadline and, in June, 1998, it enacted new legislation repealing the expiration of the taxing authority. The Plaintiffs, consisting of numerous individuals and a business, filed a class-action lawsuit against the District and the Authority, challenging the emergency legislation and the effective date of the repeal and seeking the return of the taxes paid. They alleged that under District law, there was no legislative authority to collect the taxes and such collection was a "conversion," i.e., an unlawful appropriation of property. In addition, they alleged that under federal law, the taxation without proper legislative authority constituted constitutional violations of due process and a taking (i.e., the exercise of eminent domain) without compensation under the Fifth Amendment.

On the motion of the Defendants to dismiss the action, the Court held that the Federal Tax Injunction Act, which was a codification of common law principles, barred it from hearing the matter. In order to insulate state tax administration from unwarranted federal intervention, the statute provides that "the district courts shall not enjoin, suspend, or restrain the assessment, levy or collection of any tax under State law where a plain, speedy, and efficient remedy may be had in the courts of such State." For the purposes of this law, the Court also held that the District would be considered to be a "State" and that its administrative procedure for challenging the collection of a tax constituted an adequate remedy to taxpayers. Moreover, it found that the District of Columbia Tax Injunction Act, the local analogue passed by Congress prohibiting lawsuits prior to the exhaustion of local administrative remedies, bolstered its conclusion that the suit is barred.

The Court also held that the federal statute authorizing federal jurisdiction for constitutional violations did not confer such jurisdiction. Although the statute generally does not require the exhaustion of administrative remedies, the exception to the doctrine of exhaustion of remedies does not apply where the constitutionality of a state tax is challenged.

The plaintiffs framed the issues on appeal by arguing as follows: that the District is not a state for purposes of the Federal Tax Injunction Act; that the Federal Tax Injunction Act does not preclude claims which seek only monetary damages and do not call into question the current assessment, levy or collection of any tax; and that their claims need be presented only after the exhaustion of administrative remedies. [DSK]


CABLE TELEVISION
FRANCHISE CHALLENGE


Moore v. District of Columbia

D.C. Superior Court 2000

On July 10, 2000, the plaintiff sought a temporary restraining order to prevent the Council from approving on second reading on July 11, 2000, the transfer of control of the District's cable television franchise. That initial request was denied. The plaintiff has now expanded that request and is requesting that the Court enjoin the approval of the transfer of control of District Cablevision Limited Partnership from Tele-Communications, Inc., to AT&T Corporation; and enjoin the Mayor and Council from negotiating or approving the renewal of the cable television franchise, either with District Cablevision or Starpower. The plaintiff also charges that the Cable Television Communications Act of 1981 is invalid because it authorizes the Council to award franchises, which the plaintiff contends is exclusively an executive function that the Council, under the principle of separation of powers, is prohibited from performing under the District of Columbia Home Rule Act; and that the Council enacted consecutive emergency acts in violation of the Court of Appeal's opinion in District of Columbia v. Washington Home Ownership Council, Inc., 415 A.2d 1349 (D.C. 1980) (en banc).

The Council's response is that the plaintiff's request that the court prevent the transfer of control of the cable franchise is both untimely and moot, because the approval of transfer of control of the franchise occurred 18 months ago, and that the approval cannot be retroactively changed. Further, the attack on the validity of the Cable Television Communications Act, upon which most of the plaintiff's claims are based, is simply wrong inasmuch as the power to grant franchises has been historically and traditionally vested in the legislature; and lastly, the Council is authorized to pass successive emergency acts in order to preserve the status quo pending congressional review of the permanent or temporary act.

The plaintiff relies on Wilson v. Kelly, 615 A.2d 229 (D.C. 1992), for the proposition that the Council was not authorized to grant a cable television franchise. Wilson v. Kelly held that Council review of certain contracts exceeded its resolution authority. Unlike the resolution at issue in Wilson v. Kelly which is not subject to Mayoral approval, the Mayor signed the Cable Franchise Agreement, both Change of Control Agreements, and the emergency and temporary legislation. The Office of Cable Television and Telecommunications ("OCTT") made the recommendation to the Council on whether to approve or disapprove the transfer, and the OCTT is authorized to negotiate the terms of transfer or renewal. Thus, unlike the issue in Wilson v. Kelly, the Executive branch of government was a part of the process. Moreover, a resolution requires only a single reading by the Council acting alone, while the legislative vehicle used here, an act, required reading(s) by the Council, approval by the Mayor, approval by the District of Columbia Financial Responsibility and Management Assistance Authority, and, for the temporary act and permanent acts, review by the United States Congress.

Finally, with respect to the claim that the Council illegally adopted successive emergency acts, the response is simple. The procedure used by the Council, whereby it simultaneously adopts emergency and temporary legislation, has been sanctioned by the D.C. Court of Appeals for at least a decade.

Although the Washington Home Ownership decision in 1980, contemplated the use of something akin to temporary legislation as a vehicle to satisfy the congressional review requirement, the case of United States v. Alston, 580 A.2d 587 (D.C. 1990) specifically held that "where the Council has determined that emergency legislation should remain in effect for more than ninety days and taken all reasonable actions to assure that its legislation, in a form enacted after two readings, is presented to Congress for review without unreasonable delay, the Council acts within its legislative authority under the Home Rule Act when it enacts a successive substantially similar emergency act in order to maintain the status quo during the congressional review period." [BKF]


ETHICS MATTERS


In recent months the Council has enacted many changes to the District's campaign finance law that may impact most candidates, government employees, and public officers. This article highlights two of those laws.

Campaign Finance Disclosure and Enforcement Amendment Act

The Campaign Finance Disclosure and Enforcement Amendment Act of 2000 (Act 13-362) is projected to become law on October 4, 2000. This act increases the civil penalties for campaign finance and conflict-of-interest violations by quadrupling the maximum penalties for campaign finance violations as follows:

The act also contains reporting requirements. It requires that the Director of Campaign Finance issue a biennial report summarizing the receipts and expenditures of candidates for Mayor, the Chairman and members of the Council, the President and members of the Board of Education, shadow Senator and shadow Representative and political committees, with the first report due by January 31, 2001. The reporting requirements excludes candidates for ANC.

Campaign Finance Reform Amendment Act

On April 5, 2000, D.C. Law 13-79, the Campaign Finance Reform Amendment Act of 1999, went into effect. This law was adopted by the Council to:

Any questions concerning the implementation of these acts should be directed to Cecily Collier-Montgomery, Director, Office of Campaign Finance, 2000 14th Street, N.W., Suite 420, Washington, D.C. 20009. The main telephone number for that office is: 671-0550. [CB-H]


OTHER MATTERS


Consecutive Emergency Legislation

The Council often uses emergency legislation so that it can immediately address a concern affecting District citizens; however, we must always be mindful of the restrictions the District of Columbia Court of Appeals has placed on the use of emergency legislation.

In District of Columbia, et al. v. Washington Home Ownership Council, 415 A.2d 1349 (D.C. 1980) (en banc) ("WHOC"), the court considered the Council's action in passing a series of three identical emergency acts imposing moratoriums on the conversion of rental housing to condominium and cooperative property and regulating the sale of converted units. At no time had the Council devised or passed permanent conversion legislation. The court held that the Council was without authority to pass a second substantially identical emergency because Congress had limited the effectiveness of emergency actions to no more than 90 days, absent adherence to the two-reading rule for legislation. To allow the Council to continuously use a succession of emergency actions could lead to "emergency acts extending over years." (Id. at 1354). The court ruled that Congress intended the Council's emergency power to be an exception to the fundamental legislative process requiring a second reading and congressional layover; it is not an alternative legislative track to be used repeatedly whenever the Council perceives an ongoing emergency. Id. at 1359. The Court recognized the difficulties imposed on the Council of developing a permanent legislative response during the 90 day duration of an emergency act and suggested that the Council develop shortened legislative procedures for interim legislation which followed the regular legislative process of two readings and Congressional review. Id. at 1356-1357, notes 14, 15, and 16.

As a result of these suggestions by the Court, the Council adopted a rule that allows for the passage of temporary legislation, which has a limited duration of 225 days. See, United States v. Alston, 580 A.2d 587, 590-591 (D.C. 1990) and Council Rule 413. This process can only be utilized where it is approved on first reading at the same time as the emergency act and it is substantially identical to the emergency bill. The Alston case was the first case to be decided by a District court after Congress had increased from 30 to 60 days the period of review for all criminal acts passed by the Council. In light of the lengthy time for Congressional review of criminal laws, the court held that it was appropriate for the Council to consider gap-closing emergencies to prevent an emergency bill from lapsing during the pendency of Congressional review of a temporary or permanent law.

WHOC has been interpreted to allow the Council to pass an identical successive emergency legislation as long as the Council has had a final vote on a temporary or permanent version which is pending legislative review by the Authority or the Congress, thereby preventing any circumvention of Congress' power to review Council legislation. Of course, with the review by the Financial Responsibility and Management Assistance Authority adding two to three weeks to the process, this process is used quite often. This article updates an article published in the October 1997 edition of Legalese. [BKF/CB-H]

School Governance Charter
Amendment Act of 2000

For the second time in the 27-year history of Home Rule in the District, the Council proposed a change to the District Charter for submission to District voters for ratification. The charter amendment proposed to change the Board of Education from 11 elected members to nine members, four appointed by the Mayor and five elected by District voters. The first charter change initiated by the Council occurred over 20 years ago with the approval of the Initiative, Referendum, and Recall Charter Amendment Act. A special election was announced to consider the school governance charter amendment. On the eve of the submission of the charter question to the voters, a lawsuit was filed to enjoin the holding of the June 27th special election. The judge in chambers, Judge Margaret Haywood, granted a partial Temporary Retraining Order, which allowed the special election to be held, but enjoined the counting of the ballots pending further court proceedings on the matter. An emergency appeal was taken to the D.C. Court of Appeals, which reversed the trial court and lifted the restraining order, thus allowing the counting of the ballots immediately after the votes had been cast by District voters.

On July 7, 2000, the Board of Elections and Ethics tabulated the ballots and certified that a majority of the voters had ratified the Act by a vote of 20,511 (51%) in favor and 19,668 (49%) opposed. The Act immediately became effective since Congress had previously approved H.R.4387, An Act To provide that the School Governance Charter Amendment Act of 2000 shall take effect upon the date such Act is ratified by the voters of the District of Columbia. That Act became Public Law No. 106326 on June 27, 2000 with the approval of President Clinton.

In November, when District voters go to vote, they will vote for a President of the Board of Education and four members of the board, who will represent four new school districts. School District I will comprise Wards 1 and 2, School District II will comprise Wards 3 and 4, School District III will comprise Wards 5 and 6, and School District IV will comprise Wards 7 and 8. [CBH]


PROPRIETY OF PROSPECTIVE MAYORAL APPOINTMENTS


Frequently questions arise in the latter part of a Mayor's term as to the propriety of the Mayor's inclusion of two terms in one confirmation resolution. The Mayor's appointment powers allow for the designation of a nominee to two terms in a single confirmation resolution under certain circumstances. The appointment to two terms is permissible as long as the Mayor would be the Mayor during the beginning of the second term of the nominee. This means that the second term must begin before the incumbent Mayor's term ends at noon on January 2, 2003. For example, if the Mayor submitted a resolution to the Council in September 2000 nominating a person to a 2-year term that expires June 2002, he could in the same resolution nominate that person to a second 2-year term that begins July 2002, even though the term would not end until after the Mayor's term ended. However, if the Mayor would not be the Mayor during the beginning of the second term of the nominee, the measure must be returned to the Mayor, since the Council does not have the authority to modify the term of the nominee to delete the reference to the improper second term. For example, if the Mayor submitted a resolution to the Council in September 2000 nominating a person to a 3-year term that expires June 2003, he could not in the same resolution nominate that person to a second 3-year term that begins July 2003 since his term as Mayor expires on January 2, 2003, which is before the second term would begin.

The only action that the Council can take upon receipt of this, or any other resolution introduced at the request of the Mayor, is to approve or disapprove the proposed action and not to modify the proposed action. Section 412(a)(2) of the Home Rule Charter does not authorize the Council to modify resolutions transmitted by the Mayor. That section states only that the Council may approve or disapprove proposed actions. When a Council committee prepares to mark up a resolution from the Mayor, it may not substantively change the resolution, even if the resolution is deficient due to a drafting error of the Mayor. If the Mayor has made a substantive error in the resolution, the error can only be corrected by the submission of a modified resolution by the Mayor. Therefore, with regards to Mayoral resolutions, the Council may not substitute its version of the length of the term or name of nominees for that of the Mayor. However, the Council may make minor technical changes to a resolution, such as correcting an error in the spelling of the name of a nominee. The ability of the Council to modify resolutions transmitted by the Mayor is discussed in greater detail in an article published in the January 1997 edition of Legalese. [JIB/CBH]




REMINDER

Legislative Drafting Training Sessions

If you have not attended a Legislative Drafting Seminar and you are involved in drafting legislation, please contact this office and place your name on a list of persons who are interested in attending the next session. It is important that everyone who engages in drafting legislation attend a training session to become more familiar with the drafting convention used by the Council. The next legislative drafting seminar will be in two parts, from 9:30 a.m. to 12:30 p.m. on Friday, September 22 and on Wednesday, October 11, 2000, in Room 700 South. The office telephone number is: 724-8026. [CB-H]

End of Council Period XIII

Council Period XIII will end on December 31, 2000. This means that any introduced legislation, other than temporary legislation, that has not received final Council approval prior to December 31, 2000, will lapse, subject to reintroduction in Council Period XIV. Council Rule 449(a) prevents the lapse of any temporary legislation that has had first reading by December 31, 2000. Consequently, any bill or resolution that has not had final Council approval by the last legislative session in December 2000 will lapse, except for a temporary bill that has had first reading. Any matter that has lapsed at the end of a Council period can be introduced in the new Council period, subject to Committee referral, Committee action, and Committee of the Whole and Council approval.

However, legislative matters (resolutions, reprogramming requests, contracts in excess of $1 million, etc.) that have an unexpired Council review period at the end of Council Period XIII will not lapse. Council Rule 449(a) prevents the lapsing of any matter that has been transmitted by the Mayor or an independent agency for a designated period of Council review. It allows such legislation that is pending at the end of a Council period to retain the same status in the new Council period as it had at the end of the prior Council period. This means that if a legislative measure required a 60-day period of Council review and Council Period XIII ends on the 30th day of review, the first day of the new Council Period XIV will be day 31, not day 1 of a 60-day Council review. [CB-H]


STATUS OF THE D.C. CODE


The Office of the General Counsel is currently in the process of finalizing plans to publish the D.C. Code by the first quarter of 2001. Efforts by the Office of Contracting and Procurement ended without a signed contract between the District and a private publisher. This marks the first time since the advent of Home Rule that the Council has had to enter into a contract on its own to publish the D.C. Code.

Recently, an article appeared in The Washington Post, which pointed out some of the problems encountered in letting out a bid for the publication of the D.C. Code. Since that article, the Office of the General Counsel has been contacted by several small publishers about contracting for the electronic and print codification of District laws. It is hoped that a new print and electronic publisher of the official D.C. Code will be selected in the next month. [BFB/CBH]



WELCOME ABOARD!

JOHN HOELLEN
Assistant General Counsel

On September 11, 2000, John Hoellen joined the Office of the General Counsel as an Assistant General Counsel. He is a resident of Ward 6, in the Capitol Hill area. He comes to this office with extensive analytical, writing, and advocacy skills honed through many years of experience as a journalist and a private practitioner. Equally important, he brings with him a heightened commitment to public service and unique perspectives learned from diverse experiences.

He received a B.S. degree in Journalism from Northwestern University, where he graduated with honors. He also received a Juris Doctor degree from Northwestern University School of Law, where he graduated cum laude and was a John Henry Wigmore Scholar (three-year, full-tuition scholarship). He is a member of the bars of the District of Columbia and Illinois. Prior to attending law school, Mr. Hoellen was a Sports Reporter and Copy Editor for The Chicago Tribune newspaper and a freelance writer. Upon graduating from law school, Mr. Hoellen worked as a staff attorney for the Legal Assistance Foundation of Chicago, representing indigents in civil actions and practicing in the areas of employment, housing, public benefits, consumer, and domestic relations. For the past five years, he worked as a solo practitioner representing indigents in the Superior Court of the District of Columbia and as a legal adviser for an international trade consulting company specializing in antidumping disputes.

His experience representing lower-income individuals, particularly in efforts to obtain public benefits, will be utilized as he reviews

legislation from the Human Services Committee. Moreover, his court experience will be utilized as he reviews legislation from the Judiciary Committee. In addition to his coverage of the Judiciary and Human Services Committees, Mr. Hoellen will be responding to inquiries from Councilmember Mendelson. His extensive journalism background will be useful in drafting legal opinions. Welcome aboard John!! [CBH]


OFFICE OF THE GENERAL COUNSEL
ATTORNEY COMMITTEE
ASSIGNMENTS


Donald Kaufman

Brian K. Flowers & Donald Kaufman (until vacancy is filled)

Johnnie Barton

Donald Kaufman

Johnnie Barton

John Hoellen

John Hoellen

Brian K. Flowers (until vacancy is filled)

Johnnie Barton

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 Councilmember Jim Graham, John Hoellen is assigned to inquiries from Councilmember Phil Mendelson, and Johnnie Barton is assigned to inquiries from Councilmember Vincent Orange. In addition, Benjamin Bryant will advise on contracts.

[CB-H]

Editor:

John Hoellen

Contributors:

Charlotte Brookins-Hudson, Brian K. Flowers,

Benjamin Bryant, Johnnie Barton, and Donald Kaufman

Editorial Assistant:

Karen Westbrook

1. The jurisdiction of the 3-judge panel was pursuant to 28 U.S.C. 2284(a), which allows the creation of a 3-judge district court panel "when an action is filed challenging the constitutionality of the apportionment of congressional districts." Slip op. at 4. Final judgment of a 3-judge panel is appealable to the U.S. Supreme Court. 28 U.S.C. 1253.

2. The court also discussed the issue of taxation without representation of District residents in Congress. It found that numerous Supreme Court cases have decided this issue in favor of taxation without congressional representation. Slip op. at 40-42. Several Supreme Court cases have concluded that this is constitutional because "there is no constitutional provision which so limits the power of Congress that taxes can be imposed only upon those who have political representation." Slip. op. at 41 (citations omitted).