Since its inception in 1995, this newsletter has tried to address many recurring issues of importance as reflected by the numerous telephone inquires received in this office. Recently, legislative enactments have occurred changing the way in which days are counted for certain provisions. This issue contains a revised counting days article which should be referred to whenever there is a question about counting days. In February 1997, this office distributed a comprehensive chart on counting days for most of the Council review statutory provisions. During the summer recess, this chart will be revised and distributed sometime in September.
In addition to counting days, this issue contains litigation update information, the do's and dont's
for District government employees under the Hatch Act, a summary of Congressional action
affecting the District, important information from the Codification Counsel on the D.C. Code, a
reminder about the use of official mail during an election year and the deadline for the enactment
of acts in 1998, the effect of the end of Council Period XII on pending legislation, a notice about
the deadline for submitting issues for inclusion by the Legislative Counsel in the Technical
Amendments Act of 1998, as well as other information I hope readers will find useful.
* This article contains a comprehensive
update of provisions, for which this office
receives frequent inquiries, dealing with the
time period the Council has to review certain
matters. This article replaces the counting
days article contained in the September 1995
inaugural issue of the Legalese. [BF]
Council Rule 402(b) provides that "unless specifically provided otherwise by law, no matter
transmitted for a period of Council review prior to its taking effect shall be deemed transmitted to
the Council or the Chairman, and no time period for the Council review shall begin to run until the
matter has been formally introduced by the Chairman at a legislative session or work session of
the Committee of the Whole." Consequently, the first day counted for most purposes will be the
day after the matter has been formally introduced at a COW or legislative session. Some
exceptions to when the first counting day begins are: reprogramming requests and reorganization
plans (count begins the day after the Chairman receives the request or plan), and review of
contracts (count begins the first business day following its receipt by the Office of the Secretary--
see Council Rule 309(a)).
United States Parole Commission v.
D.C. Circuit No. 95-5229
This case was brought in federal court by Matthew Noble, a recommitted parole violator, after the U.S. Parole Commission failed to accord him credit for the 1,479 days he had served on parole for a D.C. Code offense. The main issue was whether certain provisions in D.C. Code 24-206(a), which prohibited time on early release to be credited toward a sentence for a recommitted parole violator, were implicitly repealed by D.C. Code 24-431(a) (the Good Times Credit Act of 1987; "GTCA"). The U.S. District Court (Sporkin, J.) concluded that D.C. Code 24-431(a) authorized credit for street time even when a prisoner's parole has been revoked. 887 F. Supp. 11 (D.D.C. 1995). The U.S. Parole Commission appealed to the U.S. Court of Appeals for the D.C. Circuit. Because the issue involved an interpretation of a District of Columbia law, the D.C. Circuit certified the question to the D.C. Court of Appeals, as the highest court in the District of Columbia, to interpret local District of Columbia law.
On April 17, 1997, the District of Columbia Court of Appeals issued a 71-page opinion in United States Parole Commission v. Matthew Noble on the issue of whether certain provisions in D.C. Code 24-206(a) were implicitly repealed by D.C. Code 24-431(a). The former provision was enacted in 1932 and expressly provides that if parole is revoked, a prisoner's parole time or "street time" cannot be credited against a sentence. However, the GTCA ( 24-431(a)) provides that "every person" shall be given credit toward service of required imprisonment "for time spent in custody or on parole." In the past, the Department of Corrections has consistently interpreted the GTCA, through its regulations, to allow credit for any parole time or "street time" toward any sentence in a parole revocation situation.
The Appellate Division of the Office of the Corporation Counsel, as amicus curiae, argued that the GTCA implicitly repealed the 1932 law regarding the crediting of parole time toward a sentence. Corporation Counsel's position was premised on the grounds that the Council enacted the GTCA as a way to relieve overcrowding at Lorton and to keep the prison population under the court imposed limits. The U.S. Parole Commission, which is required to apply D.C. parole law to prisoners serving D.C. offenses in federal prisons, took a different and more restrictive view of the GTCA. It argued that the Council never intended to authorize such a credit because such an automatic grant of street time credit to parole violators would purportedly result in the early release of dangerous criminals.
The D.C. Court of Appeals, in a 2-1 decision, relied on two principles of law to reject the District's position. There is a general principle of statutory interpretation that "repeals by implication are not favored." Luck v. District of Columbia, 617 A.2d 509, 514 (D.C. 1992). In addition, the D.C. Court of Appeals relied on the application of the general rule of statutory interpretation that "[w]hen there are two acts upon the same subject, the rule is to give effect to both if possible." Slip op. at 6 (citations omitted). The court found that the two statutes were not irreconcilable and thus could be read to give effect to both. The court held that section 24-431(a) states a general rule that a prisoner's sentence is credited with time spent in custody or on parole, subject to the more specific, earlier limitation of section 24-206(a) of not crediting time on parole where there has been a revocation of parole.
The Court of Appeals ruled that the Council of the District of Columbia never intended to authorize street time credit and thus a parolee returned to prison after revocation of parole is not entitled to credit against his or her maximum sentence for time spent successfully on parole prior to revocation, but must serve the balance of the maximum sentence that remained when the prisoner was originally released on parole. For some prisoners, this might mean years of extra incarceration if they were on parole a long time before revocation of parole.
Matthew Noble filed a petition with the
D.C. Court of Appeals to have the case
reconsidered by the 3-judge panel or, in the
alternative, for an en banc (full 9-judge
panel) hearing. The request for en banc
consideration was granted. On April 23,
1998, the District of Columbia Court of
Appeals, en banc, issued an opinion adopting
the 71-page opinion of the 3-judge panel that
recommitted parole violators may not receive
credit on their sentence for any street time.
Judge Schwelb was the lone dissenter. [CB-H]
On May 22, 1998, the Juvenile Curfew Act of 1995 was found unconstitutional by the U.S. Court of Appeals for the District of Columbia Circuit in a 2-1 opinion written by former Corporation Counsel Judge Judith W. Rogers. The court held that the Juvenile Curfew Act of 1995 violated the rights of the minor plaintiffs in the case to free movement in violation of their equal protection and due process rights. In this case of first impression, the three judges applied three different standards of scrutiny by which to evaluate the Juvenile Curfew Act -- rational basis (the lowest level), intermediate scrutiny, and strict scrutiny (the highest level).
Judge Rogers applied the intermediate scrutiny standard, which "acknowledges the existence of a fundamental right but gives recognition as well to the existence of important governmental interests where minors are involved; it requires a showing that the Act services 'important governmental objectives' and that the means employed are 'substantially related to the achievement of those objectives.'" (Op. at 15). Judge Tatel applied the strict scrutiny standard, finding that minors have a fundamental right to free movement upon which the Act impinges. (Op. at 15; Concurring Op. at 2-3). Under the strict scrutiny standard "a fundamental right is implicated and the District would have to show that the Act is narrowly tailored to promote a compelling governmental interest." (Op. at 15). The lone dissenter, Judge Silberman, found that the correct standard of scrutiny was the rational basis standard. Under that standard, only a simple showing of a "rational relationship between a juvenile curfew and any legitimate governmental interest: for instance, the need to stem juvenile violence and victimization in the District" is necessary to sustain the constitutionality of the legislation. (Op. at 15).
Judge Rogers concluded that intermediate
scrutiny was the appropriate test by which to
evaluate the Juvenile Curfew Act, based on
the fact that:
minors have certain
constitutional rights that may
include a right of movement
under some circumstances,
but the government also has
interests that may override or
infringe upon those rights,
and because minors are
generally more vulnerable on
the street at night than adults,
but might not be as able to
make intelligent decisions
about their outdoor late-night
activities, an intermediate
scrutiny standard should
apply in examining the minor
appellees' challenges to the
(Op. at 22). Judge Rogers' opinion acknowledged that "the District has demonstrated a compelling interest in reducing juvenile crime and victimization," but she stated that the court questioned "whether the means are sufficiently tailored to respect minor's rights and to remedy the problems." Id. In assessing whether the legislation was sufficiently tailored, Judge Rogers found that the Council had ample evidence on juvenile crime, but that it was not narrowly tailored to fit the group of persons who were the targets of the legislation. (Op. at 27-34). Judge Rogers, relying on the trial court's findings about the statistical evidence relied on to support the curfew need, found that it did not specifically address crime committed by and on persons under the age of 17, but was expanded to include persons up to age 18 and in some cases age 19, and failed to show the time when the incidents occurred ", or the ages of the perpetrators or victims, or the places where incidents occurred." (Op. at 29, quoting from the trial court decision). She found that the Juvenile Act was based on flawed statistics on juvenile arrests and referrals to court for juveniles "in need of supervision" which included juveniles aged 17. Even the evidence contained in the annual reports of the D.C. courts was overly inclusive because they contained statistics showing that "youths aged seventeen and older were responsible for 45% of juvenile referrals for the years 1990 and 1994." (Op. at 31). Some of the criticism of other evidence was that it was undated and did not identify its author. (Op. at 29). Based on these findings, Judge Rogers concluded that the evidence submitted in support of the legislation lacked a sufficient nexus with the goal of the legislation. (Op. at 31-36). She held that "when a statute impinges upon minors' constitutionally protected rights, there must be persuasive evidence that the problem will be addressed by the legislative solution." (Op. at 37).
Judge Tatel's concurring opinion also
found that the Juvenile Curfew Act violated
the juvenile's rights, but for different reasons.
He found that the juvenile rights at stake
were fundamental rights which could not be
deprived by a legislature without compelling
reasons. 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.
Title 5 U.S.C. 7324 of the Hatch Act
restricts the political activities of District
government employees. The act applies to all
District government employees and officials
except the Mayor, Councilmembers, and the
Recorder of Deeds. An attorney in the U.S.
Office of the Special Counsel has recently
opined that the act applies to employees of
the executive branch of the District
government, but does not apply to staff of
the legislative branch of the District
government. While this office expresses no
view on that opinion, this article is meant to
inform appropriate persons about the
permissible and prohibited activities under
the Hatch Act. Amendments to the
act in 1993 grant District employees, during
their free time, more rights while
volunteering in political activities. The
following is a summary of the permissible
and prohibited activities for covered District
employees under the Hatch Act and may be
found at 5 C.F.R. 734.201 et seq. and
734.301 et seq.:
For more information about the
applicability of the Hatch Act to specific
activities, you should contact the U.S. Office
of Special Counsel at: 1-800-854-2824 (1-800-85HATCH) or the D.C. Office of
Campaign Finance at: 939-8710. [JB]
Congressional Legislation Affecting
Section 10007 of An Act Making emergency supplemental appropriations for the fiscal year ending September 30, 1998, and for other purposes, approved May 1, 1998 (P.L. 105-174; 112 Stat. _____), was recently enacted by Congress. This provision makes the employment agreement reached between the Chief of Police and the MOU partners superior to any law affecting the employment of the Chief that might be contradictory. This provision also requires that when a new Chief is to be appointed during a control year, the Mayor will nominate the Chief, in consultation with the District of Columbia Financial Responsibility and Management Assistance Authority ("Authority") and the Council, with the final approval of the Chief subject to approval by the Authority. The Chief may be removed, during a control year, by the Authority, or by the Mayor with the approval of the Authority.
The District of Columbia Student Opportunity Scholarship Act of 1997, 105 S. 1502, was passed by the Congress on May 7, 1998, and vetoed by the President on May 20, 1998. The act as passed by Congress would authorize the establishment of the District of Columbia Scholarship Corporation to administer a scholarship program and determine what students and schools would be eligible for participation. The President vetoed the legislation stating that the "bill would create a program of federally funded vouchers that would divert critical Federal resources to private schools instead of investing in fundamental improvements in public school."
The District of Columbia Legislative and Budget Autonomy Act of 1998, H.R. 3920, was introduced by Rep. Eleanor Holmes Norton on May 20, 1998. This legislation would eliminate congressional review of District laws and provide the District with autonomy over its budgets.
A Bill To provide additional compensation for members of the Metropolitan Police Department and Fire Department of the District of Columbia, the United States Secret Service Uniformed Division, and the United States Park Police who carry out certain technical or hazardous duties, and for other purposes, 105 H.R. 2767, was introduced on October 29, 1997.
The most recent update chart, which indicates the D.C. Code placement of all legislation enacted by the Council of the District of Columbia since publication of the 1998 supplement to the D.C. Code, appears in the June 12th issue of the District of Columbia Register. Attachment A to the chart contains recent Congressional amendments to the D.C. Code. The most recent law codified or noted in the D.C. Code is Law 12-105, effective May 7, 1998. The most recent emergency act noted in the D.C. Code is Act 12-282, effective February 25, 1998.
Before submitting legislation for
introduction before the Council, all drafters
of such legislation should refer to this
document for the most up-to-date changes to
District law. [BB]
Replacement volumes 7 and 8 of the District of Columbia Code, and the supplements to the remaining volumes, are available for pickup in the Office of the General Counsel as of June 15, 1998. Included in the materials available for pickup will be copies of the 1998 Advance Legislative Service, listing recently passed acts of the District, and copies of the D.C. Code Update Chart, for acts passed and laws enacted since the publication of the replacement volumes and supplements.
If your office receives updates to the D.C.
Code via the Office of the General Counsel,
please pick up your set(s) of the D.C. Code
from the Office of the General Counsel,
located in the One Judiciary Square building,
441 4th St., N.W., Suite 711, anytime
between June 15 and July 10, during normal
business hours. If you have not picked up
your set(s) by the close of business July 10,
your set(s) may be distributed to other
agencies. For further information, please
contact this office at (202) 724-8026. [BB]
The Michie Company will publish errata
pages to correct an error in the codification
of amendments to section 908 of the District
of Columbia Procurement Practices Act of
1985. Due to a computer coding error, on
the part of the publisher, the amendments to
section 908 made by D.C. Law 11-259 were
dropped from the pocket parts (supplements)
to Title 2A of the D.C. Code. Only the
amendments in D.C. Law 12-104 appear in
the supplement (and the relevant text of Law
11-259 that D.C. Law 12-104 amends). The
errata pages should be available shortly.
The annotated and revised District of Columbia Home Rule Act, prepared by the Office of the General Counsel, contains an error on page 61.
Section 11601(b)(1)(D) of the National Capital Revitalization and Self-Government Improvement Act of 1997, approved August 5, 1997 (P.L. 105-33; 111 Stat. 777) ("Revitalization Act"), amends section 603(f)(1) of the District of Columbia Home Rule Act ("Home Rule Act") (D.C. Code 47-313(f)(1)) by striking the phrase "(other than the fourth sentence)".
Section 11602(b) of the Revitalization Act (111 Stat. 779) amends section 603(f) of the Home Rule Act by striking the phrase "'Act of 1995)--' and all that follows through '(2) the Council'" and inserting the phrase "Act of 1995), the Council" in its place. This second amendment has the effect of deleting paragraph (1) of section 603(f), thus nullifying the change made by the first amendment.
In the annotated and revised District of Columbia Home Rule Act, effect was only given to the first amendment. We now believe that effect should be given to the second amendment although it nullifies the change made by the first amendment. A corrected page, containing the second amendment is available in this office.
Also, the cite to the Home Rule Act
appearing on the cover is better cited as "87
Stat. 774", the first page of the act, instead
of "87 Stat. 777" which is the page that a
substantive provision of the act is found.
Congress is scheduled to adjourn sine die with a target date of October 9, 1998. When the Congress adjourns sine die, any Council enacted legislation that has not concluded its 30 or 60-day Congressional review prior to the adjournment, will have to start a new count when the 106th Congress convenes sometime in January 1999. That legislation will not become law until, at the earliest, the end of February or March 1999.
If enactment in 1998 is a goal for legislation which must undergo a 30-day Congressional review, it should have received second reading by the Council no later than June 2, 1998. The deadline for final Council passage would have been April 7, 1998, for legislation which must undergo a 60-day period of Congressional review. This calculation is based on the worst case scenario, that is the Mayor taking his full 10 business days to review legislation and the Financial Authority taking its maximum 14 business days to review legislation. At the latest, legislation must be transmitted to Congress no later than July 24th to conclude its 30-day review period prior to the scheduled October 9th adjournment.
It will be difficult for matters having final
reading by the Council on July 7th to
complete a 30-day Congressional review
cycle prior to the October 9, 1998, target
adjournment date, if all parties (the Mayor
and the Financial Authority) take their full
review period. During the month of July,
Congress is scheduled to be out from July 1-July 13, leaving 14 review days from July 14-July 31. Congress is scheduled to be on
recess all but 5 days during the month of
August through September 8, and on
September 21st and September 30. This
means that we will only have 5 review days
in August, 14 review days in September, and
maybe 6 days in October to complete
Congressional review prior to their
scheduled adjournment date. By this
schedule, absent a waiver of the 30-day
review period by Congress, matters would
have to have been reviewed by the Mayor
and the Financial Authority and submitted to
Congress for commencement of the 30-day
review period sometime around July 24th.
Council Period XII will end on December 31, 1998. This means that any introduced legislation, other than temporary legislation, that has not received final Council approval prior to December 31, 1998, will lapse, subject to reintroduction in Council Period XIII. Council Rule 449(a) prevents the lapse of any temporary legislation that has had first reading by December 31, 1998. Consequently, any bill or resolution that has not had final Council approval by the last legislative session in December 1998 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 XII 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 XII
ends on the 30th day of review, the first day
of the new Council Period XIII will be day
31, not day 1 of a 60-day Council review.
With two elections fast approaching, the General Counsel's Office would like to remind everyone of the Council's rules regarding official mail and mailing deadlines. According to Council Rule 805, a Councilmember who is a candidate for office may not mail, as official mail at public expense, a mass mailing within the 90-day period immediately preceding a primary, general, or special election.
"Official mail" is defined in Council Rule 801(3) as correspondence pertaining directly or indirectly to the legislative process or a legislative function, to the official duties of a Councilmember, or to other matters of public concern or public service. "Mass mailing," according to Council Rule 801(1), is the transmission through the mails of more than 100 substantially identical newsletters, news releases, or similar material during any 30-day period.
The District's Board of Elections and
Ethics has scheduled this year's primary
election for Tuesday, September 15, 1998,
and the general election for Tuesday,
November 3, 1998. June 16, 1998, was the
last date to have a mass mailing of official
mail for this year's primary election. August
4, 1998, will be the last date to have a mass
mailing of official mail for this year's general
election. As usual, the Office of the General
Counsel is available to answer any questions
you may have regarding this matter and to
review any material to determine if it
qualifies as official mail. [SB]
The Office of the General Counsel is in the
process of preparing the Technical
Amendments bill for this year to be
introduced following the summer recess. The
types of matters typically included in a
technical amendments bill include
amendments needed to correct erroneous
cross-references, grammatical errors, or
amendments needed to conform legislative
provisions to subsequent amendments passed
by the Council or Congress. If you are
aware of errors in any District laws or
enacted titles of the D.C. Code, please
contact Brian K. Flowers, the Legislative
Counsel, no later than July 31, 1998, at 724-8026. [BKF]
FAREWELL TO SHEILA BARFIELD
It seems that I have the task of drafting a farewell to another colleague. Sheila Barfield began her career here at the Council almost 5 years ago as an Assistant General Counsel in the Office of the General Counsel. During that time she performed several duties for the Council in a very competent and professional manner. Her assignments to follow the work of 3 committees varied, and during her tenure those committees included the Council Committees on the Judiciary, Economic Development, Finance and Revenue, Local, Regional and Federal Affairs, Consumer and Regulatory Affairs, and the former Public Services and Regional Authorities Committee.
In her new role as Deputy General Counsel for the Office of Employee Appeals ("OEA"), Sheila
probably misses attending hearings and roundtables; drafting legislation; identifying legislative
problems and providing Council staff alternatives in terms of policy options to solve these
problems; researching and preparing opinions on legal issues raised by pending legislation;
preparing legal opinions on Council procedural rules; reviewing bills and resolutions assigned to
her committees prior to markup, engrossment, and enrollment, for technical legislative drafting
sufficiency; and following Congressional hearings and legislation involving issues under the
jurisdiction of her assigned committees. It is expected, however, that she will take her experience
researching legal issues and use it to find ways to ensure that grievances filed by District
employees will be given fair consideration as she prepares legal opinions in different cases. In
addition, she will take her excellent writing skills and apply them as she writes recommendations
on the position to be taken by the OEA on employee grievances. Good luck! [CB-H]