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SUPERIOR COURT OF THE DISTRICT OF
COLUMBIA Civil Division Linda W. Cropp, Chairman, et al., Plaintiffs, v. Anthony A. Williams, Mayor, Defendant. Civil Action No. 03-4569 PLAINTIFFS' MOTION FOR SUMMARY JUDGMENTPursuant to Super. Ct. Civ. Rules 56 and 57, and the agreement regarding expedited summary judgment briefing schedule, Plaintiffs Linda W. Cropp, Chairman of the Council of the District of Columbia, and Members Sandra Allen, Sharon Ambrose, Harold Brazil, David Catania, Kevin Chavous, Jack Evans, Adrian Fenty, Jim Graham, Phil Mendelson, Vincent Orange, Kathy Patterson, and Carol Schwartz, ("Councilmembers"), acting in their official capacity and as District residents and taxpayers, move for summary judgment on the grounds that there is no issue as to any material fact and that Plaintiffs are entitled to judgment as a matter of law. For the reasons set forth more fully in their Complaint, their Memorandum of Points and Authorities in Support of Plaintiffs' Motion for Summary Judgment, and the Statement of Undisputed Material Facts attached to this Motion, Plaintiffs request that this Court enter summary judgment and declare, pursuant to Title 28 U.S.C. § 2201 that: (1) The Inspector General Qualifications Emergency Amendment Act of 2003 (D.C. Act 15-78), effective April 29, 2003 and, upon the conclusion of the mandatory 30-day Congressional review period, the Inspector General Qualifications Temporary Amendment Act of 2003 (D.C. Act 15-79), and the Inspector General Qualifications Amendment Act of 2003 (D.C. Act 15-94) ("IG Qualification Laws") are valid enactments of the Council; (2) The Defendant violated the Home Rule Act when he refused to enforce the IG Qualifications Laws duly adopted by the Council without seeking a judicial determination as to its validity; (3) The Defendant faithfully execute the Inspector General Qualifications Emergency Amendment Act of 2003, and, after the conclusion of the mandatory Congressional review period, the Inspector General Qualifications Temporary Amendment Act of 2003, and the Inspector General Qualifications Amendment Act of 2003; and (4) The Defendant be enjoined from refusing to enforce the Inspector General Qualifications Emergency Amendment Act of 2003, and, after the conclusion of the mandatory Congressional review period, the Inspector General Qualifications Temporary Amendment Act of 2003, and the Inspector General Qualifications Amendment Act of 2003. Accordingly, the Plaintiffs respectfully request that the Court grant this motion for summary judgment and issue relief as requested by Plaintiffs, in addition to such other relief that the Court deems just and proper. Plaintiffs further request that the Court retain jurisdiction of this action to issue any further relief, including injunctive relief, necessary to the enforcement of the final judgment sought by Plaintiffs. Respectfully submitted, Attorneys for Plaintiffs SUPERIOR COURT OF THE DISTRICT OF
COLUMBIA Linda W. Cropp, Chairman, et al., Plaintiffs, v. Anthony A. Williams, Mayor, Defendant. Civil Action No. 03-4569 PLAINTIFFS' STATEMENT OF UNDISPUTED MATERIAL FACTSPlaintiffs, Linda W. Cropp, Chairman of the Council of the District of Columbia, and Members Sandra Allen, Sharon Ambrose, Harold Brazil, David Catania, Kevin Chavous, Jack Evans, Adrian Fenty, Jim Graham, Phil Mendelson, Vincent Orange, Kathy Patterson, and Carol Schwartz, ("Councilmembers"), pursuant to Super. Ct. Civ. R.56 and in support of their Motion for Summary Judgment, submit the following statement of facts as to which there is no genuine issue.
Based upon the foregoing facts, and for the reasons set forth in their Memorandum of Points and Authorities in Support of Plaintiffs' Motion for Summary Judgment and in their forthcoming memoranda, Plaintiffs request that the Court grant their motion for summary judgment and issue relief as set forth in their motion. Respectfully submitted, Attorneys for Plaintiffs SUPERIOR COURT OF THE DISTRICT OF
COLUMBIA Linda W. Cropp, Chairman, et al., Plaintiffs, v. Anthony A. Williams, Mayor, Defendant. Civil Action No. 03-4569 ORDERThis matter comes before the Court on cross motions for summary judgments. The court, upon consideration of Plaintiffs' Motion for Summary Judgment, Memorandum of Points and Authorities in Support of Plaintiffs' Motion for Summary Judgment, Statement of Undisputed Facts, the opposition from the Defendant and supporting Memorandum of Points and Authorities, finds that: (1) The Defendant violated the Home Rule Act when he refused to enforce the Inspector General Qualifications Emergency Amendment Act of 2003. which became effective April 29, 2003, which required the Mayor to make a determination, as of June 1, 2003, as to whether the incumbent Inspector General meets the minimum qualifications set forth in that act, without first seeking a judicial determination as to its validity; (2) The Defendant's refusal to enforce the Inspector General Qualifications Emergency Amendment Act of 2003, without first seeking a judicial determination as to its validity; violates his duty under section 422 of the District of Columbia Home Rule Act and assumes a power reserved under the Home Rule Act to the Council, the judicial branch, and a power reserved to Congress; (3) The Council's expansive legislative powers include the authority to set qualifications for an executive appointee; (4) The Council properly exercised its power pursuant to sections 302 and 404 of the Home Rule Act, to set qualifications for the position of Inspector General, including applying the new qualifications to the incumbent Inspector General; (5) The Inspector General Qualifications Emergency Amendment Act of 2003 (D.C. Act 15-78), effective April 29, 2003 and, upon the conclusion of the mandatory 30-day Congressional review period, the Inspector General Qualifications Temporary Amendment Act of 2003 (D.C. Act 15-79), and the Inspector General Qualifications Amendment Act of 2003 (D.C. Act 15-94) are valid enactments of the Council; and (6) The doctrine of separation of powers does not apply to the analysis of legislation involving the position of Inspector General since this is not a position under the direct control and supervision of the Mayor and the Mayor does not use the Inspector General to carry out his duties under the District Home Rule Act to execute the laws of the District of Columbia; For these reasons, it is ORDERED THAT: (1) Plaintiffs' Motion for Summary Judgment is hereby GRANTED. (2) Defendant, Anthony A. Williams, Mayor of the District of Columbia, is hereby enjoined from in any manner, directly or indirectly, refusing to enforce the Inspector General Qualifications Emergency Amendment Act of 2003, and after the conclusion of the mandatory Congressional review period, the Inspector General Qualifications Temporary Amendment Act of 2003 and the Inspector General Qualifications Amendment Act of 2003. (3) The Mayor shall, no later than __________ 2003, make a determination as to whether the incumbent Inspector General meets the qualifications set forth in the Inspector General Qualifications Emergency Amendment Act of 2003. If the incumbent Inspector General does not meet the qualifications, the Mayor shall, within - days of making the determination, take appropriate action to ensure that the position of Inspector General is vacate. JUDGE JOHN M. CAMPBELL DATE cc: Charlotte Brookins-Hudson Arabella W. Teal Daniel Rezneck SUPERIOR COURT OF THE DISTRICT OF
COLUMBIA Linda W. Cropp, Chairman, et al., Plaintiffs, v. Anthony A. Williams, Mayor, Defendant. Civil Action No. 03-4569 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENTCharlotte Brookins-Hudson #954255 Brian K. Flowers, Dep. General Counsel #358241 Office of the General Counsel Attorneys for Plaintiffs TABLE OF CONTENTSTABLE OF AUTHORITIES
STATUTORY APPENDICES (not online) TABLE OF AUTHORITIESCasesAFGE v. Barry, 459 A.2d 1045 (D.C. 1983)
Federal Legislative AuthorityU.S. Constitution, Article 1, § 8, cl. 17
Local Legislative AuthorityD.C. Official Code § 1-1182.8 (1981 Ed.) Treatises63 C Am. Jur.2d § 48 MiscellaneousBurt Franklin, Debates on the Adoption of the Federal
Constitution *Authorities chiefly relied on are marked with an asterisk. SUPERIOR COURT OF THE DISTRICT OF
COLUMBIA Linda W. Cropp, Chairman, et al., Plaintiffs, v. Anthony A. Williams, Mayor, Defendant. Civil Action No. 03-4569 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS' MOTION FOR FOR SUMMARY JUDGMENT Preliminary StatementIn the Home Rule Act,1 Congress delegated its exclusive legislative authority under the Constitution2 to District of Columbia residents subject to certain limitations and reservations. Pursuant to sections 302 and 404 of the Home Rule Act.3 Congress delegated its exclusive legislative authority to the Council of the District of Columbia, giving the Council the authority to legislate with respect to "all rightful subjects of legislation within the District consistent with the Constitution of the United States." D.C. Official Code § 1-203.02. Section 422 of the Home Rule Act delegated the executive power of the District to the Mayor to be "responsible for the proper execution of all laws relating to the District." That provision also gave the Mayor authority over executive employees who assist him in carrying out his executive functions. This case raises important issues concerning the breadth of the power of the Council under sections 302 and 404 of the Home Rule Act. Specifically, the question posed here is whether the Council in exercising its section 302 and 404 Home Rule Act powers to enact new qualifications for the position of Inspector General, which it deems necessary for an office holder, improperly intrudes upon the Mayor's power to remove the Inspector General for cause, because the law has the incidental effect of having the incumbent Inspector General vacate the office. Most importantly, this case concerns the refusal of the Mayor to enforce the Inspector General Qualifications Emergency Amendment Act of 2003, which became effective on April 29, 2003, without first seeking judicial clarification, when section 422 of the Home Rule Act states that he is "responsible for the proper execution of all laws relating to the District," and the court is the final arbiter of the validity of laws. Expedited declaratory relief from this Court, determining the validity of the Inspector General Qualifications Laws and imposing other necessary relief, will resolve these novel issues. More importantly, it will ensure that the person who occupies the position of Inspector General acts with lawful authority, prevent the continued loss of confidence in the Office of the Inspector General, prevent the defendant from usurping both legislative and judicial powers concerning these acts, and prevent the loss of public confidence in a Mayor who ignores the Home Rule Act's requirement that he properly execute "all laws relating to the District." The Changes Adopted in the IG Qualifications LawsThis year the Council made a policy determination that several changes were needed to the Inspector General statute, involving the position of Inspector General. That policy determination is set forth in several laws adopted by the Council: the Inspector General Qualifications Emergency Amendment Act of 2003 (D.C. Act 15-78), which became effective April 29, 2003; the Inspector General Qualifications Temporary Amendment Act of 2003 (D.C. Act 15-79), which is projected to conclude its mandatory 30-day Congressional review period by June 20, 2003; and the Inspector General Qualifications Amendment Act of 2003 (D.C. Act 15-94) (collectively referred to as the "IG Qualification Laws"). (Exhibits # 5, 6, and 7). The IG Qualification Laws made five changes to the Inspector General statute. The laws amended the District of Columbia Procurement Practices Act of 1985 ("PPA") to: (1) provide that the Inspector General shall not serve in a hold-over capacity upon the expiration of his or her term; (2) to provide a procedure for the filling of vacancies; (3) to provide that the appointee for an unexpired term shall serve only for the remainder of the term; (4) to clarify who may fill a vacancy on a temporary basis; and (5) to provide minimum qualifications for the position of Inspector General. By letter dated, May 30, 2003, the Mayor advised Chairman Cropp and the Members of the Council of his intent to treat the IG Qualification Laws as null and invalid, primarily, because one provision, the new qualifications, would apply to the incumbent Inspector General. (Exhibit #12). As revised, section 208(a) of the PPA (D.C. Official Code § 2-302.08(a)) reads as follows: § 2-302.08. Creation and duties of Office of the Inspector General. (New language is bolded).
Statutory BackgroundThe legislative history of the Inspector General statute unequivocally establishes that the Inspector General is to have a significant degree of independence from and be insulated from the control of the Mayor and other political interference to conduct unfettered investigations into fraud, waste, and abuse in government. The Council statutorily created the Office of the Inspector General in section 208 of the District of Columbia Procurement Practices Act of 1985, effective February 21, 1986 (D.C. Law 6-85) ("PPA"). The organic law provided that the Office of Inspector General was to conduct and review certain audits, report on the "adequacy and effectiveness of procurement operations, the integrity of the procurement process, and adherence to the provisions of the [Procurement Practices Act]." The OIG was to make recommendations "for improvements to procurement operations" and compliance with the PPA. The IG was given authority to "undertake reviews and investigations, and make determinations or render opinions as requested by the Director." (Exhibit #1). To further bolster the independence of the OIG and to impose minimum qualifications for the position of the Inspector General, the Council amended section 5 of the Confirmation Procedures and Sanctions Amendment Act of 1988, effective March 16, 1989 (m. Law 7-201). The amendments provided that the OIG was to be headed by an Inspector General, who would be appointed by the Mayor "with the advice and consent of the Council." It required that the IG "be a lawyer admitted to practice in the District of Columbia." The law further provided for a 4-year term for the IG, but stated that "in no event shall that term extend for more than 3 months beyond the term of the Mayor who appointed him or her." In addition, m. Law 7-201 required the IG to submit any evidence of criminal wrongdoing uncovered during an audit or investigation to the Mayor and the Council. (Exhibit #2) The Committee report on Bill 7-95, the Confirmation Procedures and Sanctions Amendment Act of 1987 (which after being adopted became D.C. Law 7-201), stated that the act was amending the PPA:
Report of the Committee on Government Operations on Bill 7-95, the Confirmation Procedures and Sanctions Amendment Act of 1987, at 3 (Council of the District of Columbia September 22, 1988). (Exhibit #3). At the first reading on the bill, an amendment by Councilmember Carol Schwartz substituted "a term of 4 years, but in no event shall that term extend for more than 3 months beyond the term of the Mayor who appointed him or her" for the six year term adopted by the Committee on Government Operations. The amendment passed. (Exhibit #3a). In 1995 Congress amended section 208 of the PPA to impose new standards "to increase the regulations regarding this office so that it confirms [sic] with the Federal IG. The IG budget cannot be reduced or altered by the Mayor or the Council. The IG is appointed for a six-year term which will allow it no [sic] to conform with the four-year mayoral term." H.R. REP. No. 104-96, 104th Congress, 1st Sess. (March 30, 1995) at 4; Exhibit #4).4 During a control year, the Mayor was required to consult with the Financial Authority "prior to nominating a candidate, the Council will have a limited review, and the Authority must confirm the appointment" of the IG. Id. at 49. (Exhibit #4). The 1995 amendment deleted the requirement that the IG be a lawyer admitted to practice in the District of Columbia. Currently, the role of the OIG is to independently:
ARGUMENTI. THE MAYOR HAS A LEGAL DUTY UNDER THE HOME RULE ACT TO ENFORCE ALL LAWS RELATING TO THE DISTRICT.Section 422 of the District of Columbia Home Rule Act, requires the Mayor to implement and enforce all legislation approved by the Council that becomes effective in accordance with the act. On May 30, 2003, the Mayor of the District of Columbia notified the Council that he would not enforce the Inspector General Qualification Emergency Amendment Act of 2003.5 (Exhibit #11). The Mayor's action is contrary to the District's Charter6 and assumes a power reserved under the Charter to the Council, the judicial branch, and more broadly, a power reserved to Congress.7 The Mayor has no more power under the Charter to refuse to enforce a law of the Council than he has to refuse to abide by a ruling of the Superior Court or Court of Appeals. If sustained, the authority would be akin to that of King George III's authority to exercise an absolute veto over colonial laws.8 Section 422 provides in relevant part that "The Mayor shall be responsible for the proper execution of all laws relating to the District, and for the proper administration of the affairs of the District coming under his jurisdiction or control ...."9 By suspending enforcement of a validly enacted law, the Mayor has chosen to rewrite the provisions of the Charter which set forth his role in the District's legislative process. Under the Charter, the Mayor is authorized to submit drafts of acts to the Council,10 he has a right to be heard by the Council or any of its committees11 and he can approve or disapprove (veto) any bill passed by the Council, subject to being reenacted (overridden) by a supermajority of the Council .12 It is in this manner, and only in this manner, that the Mayor is authorized to exercise legislative power.13 If the judiciary were to sanction the Mayor's defiance of a properly enacted law, it would severely upset the equilibrium established within our tripartite form of local government. If the Mayor was permitted to rely on his position that a perceived separation of powers intrusion allows him to determine which laws are "null and of no effect", there would be no limits on his powers except those which he imposes upon himself In Kendall v. United States, 37 U.S. 524 (1838), the Supreme Court issued a writ of mandamus to an executive branch official, the Postmaster General, to implement a law that he refused to carry out. The government argued that the "faithful execution" clause of the Constitution vested the discretionary power in the executive branch to ignore the law. The Court rejected that argument, stating:
The Court further explained:
The Court of Appeals has examined a similar issue - whether the District of Columbia Board of Elections and Ethics, a Charter independent agency, could refuse to certify a ballot initiative on the basis of its belief that the proposal was unconstitutional. The standard adopted by the court in that case was that the law had to be "patently, obviously, and unquestionably unconstitutional" for the agency to refuse to certify it for the ballot.15 It is similar to a situation where a person who is subject to a court injunction believes the injunction to be unconstitutional or legally invalid. The Supreme Court has ruled that an injunction must be obeyed until it is dissolved or modified on appeal in order to preserve the integrity of the judicial process. Walker v. City of Birmingham, 388 U.S. 307 (1967).16 In 1985, a United States District Court in New Jersey ordered the Executive to comply with the provisions of an [act], that the administration refused to comply with on the basis that they believed the law to be unconstitutional. The District Court found the law to be constitutional, and entered a preliminary injunction requiring the Executive branch to comply with the law. The administration thereafter announced that it would not abide by that decision, but would continue to disobey [the act's] provisions until a final decision was rendered by the courts. In a later proceeding, in which the District Court entered a final order, the court addressed the Executive's refusal to obey both the legislative and judicial branches of government:
Ameron, Inc. v. U.S. Army Corps of Engineers, 610 F. Supp. 750, 754 (D.N.J. 1985). On appeal, the Third Circuit decision indicated that the President's alleged usurpation of power was not before them, the court did note that "[t]his claim of right for the President to declare statutes unconstitutional and to declare his refusal to execute them, as distinguished from his undisputed right to veto, criticize, or even refuse to defend in court, statutes which he regards as unconstitutional, is dubious at best." Ameron, Inc. v. U.S. Army Corps of Engineers, 787 F.2d 875, 889 (3rd Cir. 1986). The same rationale enunciated by these courts applies to obedience to a law enacted in accordance with the District's Charter. It is a frightful prospect where the Executive branch declares itself not to be bound by the laws that apply to every other citizen of the District of Columbia. The Mayor's refusal to abide by the law denigrates the Council and court's essential roles in our government. The duty of the Mayor to enforce and obey the law means all laws, not as he decides, but as judicially determined, because every law is presumptively valid and constitutional until declared otherwise by the court. Hornstein v. Barry, 560 A.2d 530, 534 (D.C. 1989). II. THERE IS NO VIOLATION OF SEPARATION OF POWERS BECAUSE THE COUNCIL ACTED WITHIN ITS LEGISLATIVE AUTHORITY WHEN IT ESTABLISHED QUALIFICATIONS FOR THE OFFICE OF THE INSPECTOR GENERAL.17At issue here is whether the facially valid law enacted by the Council is rendered invalid because it has the incidental effect of the incumbent Inspector General having to vacate the office.18 The Mayor contends that this incidental effect means per se that the law encroaches upon his removal power in violation of separation of powers principles.19 He is wrong. A. The Council's expansive legislative powers include the authority to set qualifications for an executive official.It is undisputed that the Council has broad authority to establish qualifications for an office within the executive branch that is statutorily created. See, e.g., See State ex rel. Buttz v. Marion Circuit Court, 72 N.E.2d 225, 230 (Ind. 1947) ("It has been held universally that in the absence of constitutional restrictions there maybe qualifications imposed by the Legislature for holding public office."); Goodrich v. Mitchell, 75 P. 1034, 1035 (Kan. 1904) ("The general doctrine is that, in the absence of constitutional limitations, the legislature may prescribe how and by whom offices may be filled."); Fair Housing Council, Inc. v. New Jersey Real Estate Com., 358 A.2d 221, 223 (A.D. Sup. Ct. N.J 1975), cert. den. 366 A.2d 681 (N.J. 1976) ("It is settled that with respect to qualifications for office holding, the Legislature may prescribe qualifications which reasonably relate to the specialized demands of an office, whether that office be elective or appointive."). The Office of the Inspector General is statutorily created. D.C. Official Code § 2-302.08. The only restrictions upon the Council's ability to establish qualifications for that office are those prescribed by the District of Columbia Home Rule Act or the United States Constitution. Section 302 of the District of Columbia Home Rule Act extends the legislative power of the District to "all rightful subjects of legislation within the District" consistent with the United States Constitution and the Home Rule Act.20 D.C. Official Code § 1-203.02. Section 404(a) of the Home Rule Act vests that legislative power in the Council. D.C. Official Code § 1204.04(a). The only limits Congress chose to place on the Council's broad legislative powers are those expressed in section 602 of the Home Rule Act. D.C. Official Code § 1-206.02. None of those limitations is relevant here. B. A legislature acting within its own constitutional powers does not violate separation of powers.There is no legal authority for the proposition that a legislature has encroached upon the executive's removal power in violation of separation of powers when the legislature is acting, as the Council is here, within its own constitutionally prescribed authority to establish qualifications for an office. There always will be some overlap of authority and function among the three branches of government in our tripartite system. Unless the intrusion is significant, the overlap does not constitute a violation of separation of powers. Morrison v. Olson, 487 U.S. 654, 693 (1988) (Question to be addressed is "whether the Act, taken as a whole, violates the principle of separation of powers by unduly interfering with the role of the Executive Branch."). The lines of demarcation between the three branches, out of necessity and by design, are blurred. See D.C. Official Code §1-301.44(a) (establishing Council as an "independent and coordinate branch of the District of Columbia government."); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (J. Jackson, concurring) ("While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity."); Judicial Watch v. National Energy Policy Development Group, 219 F. Supp. 2d 20, 47 (D.D.C. 2002) ("Conflicts and overlap are necessary byproducts of the constitutional design of checks and balances among the three branches of government."). If an incumbent officeholder no longer meets the qualifications for office, the position becomes vacant. See, e.g., Miller v. Mendez, 804 So. 2d 1243 , 1247 (Fla. 2001) ("If candidate is elected and does not meet residency requirement by the date of assuming office, the office is deemed vacant and the Governor may appoint someone to fill the vacancy."); Donohue v. Conklin, 192 Misc. 2d 664, 669, 747 N.Y.S.2d 893, 897 (2002) (Appointments of commissioners who are not residents are "hereby invalidated and declared null and void."); 63C Am. Jur. 2d § 48 ("To hold a public office, one must be eligible and possess the qualifications prescribed by law ."). The legislature's power to establish qualifications for an office is not inconsistent with the executive's removal power - even if the establishment of the qualifications results in the incumbent officer having to vacate the office. See State ex. rel. Associated Master Barbers & Beauticians v. Eischen, 76 N.W.2d 385 (Minn. 1956) (Right of a legislature to prescribe qualifications as the basis for appointment to public office is not inconsistent with the executive power of appointment to office.). An official who has to "vacate" the office because he no longer meets the duly established qualifications has not been "removed" by the legislature. Although the distinction may be subtle, it is critical when, as here, the issue is whether a legislature has encroached upon the executive's removal powers in violation of separation of powers principles by establishing qualifications for an office that result in the incumbent having to vacate office. C. The effect of the legislation upon the incumbent Inspector General is incidental to the legitimate legislative purpose of establishing Qualifications for the position.There is no violation of separation of powers if the removal of an executive official is incidental to a legitimate legislative purpose. "(W)here the power to create or abolish is rightfully used for legislative purposes, the fact that it incidentally results in the loss of office can make no difference." State ex. rel. Hammond v. Maxfield, 103 Utah 1, 132 P.2d 660, 665 (1943); accord Lanza v. Wagner, 183 N.E.2d 670 (N.Y. 1962), appeal dismissed 371 U.S. 74 (1962), cert. den. 371 U.S. 901 (1962). The test of the validity of a law establishing qualifications for an executive branch office is that "they must be reasonable and based upon substantial grounds which are natural and inherent in the subject matter of the legislation." State ex. rel. Buttz v. Marion Circuit Court, 72 N.E.2d 225, 230 (Ind. 1947); accord Lee v. Clark, 77 S.E.2d 485 (S.C. 1953); 63C Am. Jur. 2d, Public Officers and Employees § 50. A legislature only exceeds its power to establish qualifications for an executive branch office if the qualifications themselves are arbitrary (i.e., unreasonable and insubstantial). Id. Although this is a case of first impression in the District of Columbia, the Supreme Court of South Dakota has upheld a legislative change in professional qualifications that resulted in the incumbent having to vacate the office.21 In State ex rel. Maloney v. Wells, 79 S.D. 389, 112 N.W.2d 601 (1961), an office was renamed and the incumbent office holder was newly required to be a member of the state bar, with at least five years of active legal practice. Unable to meet the qualifications, the incumbent challenged her removal from office. The court held that the subsequent appointee properly occupied the office:
Maloney, 112 N.W.2d at 604 (emphasis added). The analysis for determining whether the Council's act impermissibly encroaches upon the Mayor's removal power must begin with an examination of whether the new qualifications established by the Council are reasonable and substantial. A determination that the qualifications are reasonable and substantial ends the inquiry. Absent findings that the qualifications are arbitrary, the fact that the incumbent no longer qualifies to hold the office is irrelevant and his or her having to vacate the office is incidental. This is the inquiry. This approach is consistent with the principle that courts shall accord deference to the judgment of a legislature by presuming that it is operating in good faith. Hornstein v. Barry, 560 A.2d 530, 533 n.5 (D.C. 1989) (en banc) ("Every possible presumption is in favor of the validity of a statute, and this continues until the contrary is shown beyond a reasonable doubt); Tucker v. United States, 704 A.2d 845 (D.C. 1997) (If the repugnancy between the law and the Constitution is not manifest, a court "usurps legislative functions where it presumes to judge a law void."). In the Mayor's analysis, the critical fact that the qualifications themselves are reasonable and substantial is irrelevant. The mere fact that the new qualifications will result in the incumbent Inspector General having to vacate the office means per se that the Council has impermissibly encroached upon the Mayor's removal power. The Mayor's analysis begins - and ends - with the fact that the legislation will result in the incumbent having to vacate the office. The Mayor's approach, then, begins with the presumption that the Council was operating in bad faith when it enacted the law. It flies in the face of the principle that a statute is presumed constitutional and that the party challenging its validity has the burden of proof. It turns on their head the presumptions that are to be accorded to a legislature, including the presumption that a legislature acts in good faith. D. The new qualifications are reasonable and substantial.The Mayor's May 30, 2003 decision not to enforce the law is based entirely upon the imposition of those qualifications upon the incumbent Inspector General. The Mayor has not asserted that the new qualifications should not be imposed upon any person holding the position of Inspector General, only that they not be imposed upon the incumbent. There has been no challenge to the validity of the qualifications because the qualifications - on their face - are reasonable and substantial, given the powers, duties, and responsibilities of the Inspector General. Prior to the amendments at issue, the Inspector General was to be appointed "solely on the basis of integrity and demonstrated ability in accounting, auditing, financial management analysis, public administration, or investigations." m. Official Code § 2-302.08(a)(1)(D). The Council simply has amplified these general requirements by establishing a set of specific, objective criteria. The Inspector General is generally charged with ferreting out corruption within the District government. He conducts independent investigations, inspections, and audits of District government operations. D.C. Official Code § 2-302.08(a)(3). Any evidence of misconduct or unethical behavior discovered by the Inspector General is to be forwarded to the appropriate authority, including the Mayor and, in cases of possible criminal wrongdoing, the Office of the United States Attorney. m. Official Code § 2-302.08(a)(3)(F). Among the powers the Inspector General has is the authority to issue subpoenas, make arrests, and carry a firearm. D.C. Official Code § 2-302.08(c)(2) and (f-1). Given these kinds of duties and responsibilities, it certainly is not unreasonable to require the Inspector General to be a licensed lawyer or accountant. Nor is it unreasonable to require the Inspector General to have more than minimal experience practicing either as a lawyer or as an accountant. The requirements of having either 7 years of experience as a lawyer or 7 years of experience as an accountant are not inordinate. It has been customary for large law and accounting firms to establish the 7-year mark as the minimum threshold for eligibility for partnership within the firm Requiring an Inspector General to have been a member of the D.C. Bar for 7 years ensures that an incoming Inspector General has a connection to and familiarity with the unique nature of the District of Columbia and its government. The new qualifications do not operate simply by way of limitation. The Council expanded the field of prospective eligible candidates to include lawyers. Prior to the amendments, a candidate had to possess "demonstrated ability in accounting, auditing, financial management analysis, public administration, or investigations." The Council amended that list to add "law" as an area of expertise that would qualify a person to hold the position. The Council now requires a candidate to have "a minimum of 7 years of supervisory and management experience." Previously, there was no requirement that the candidate have any supervisory or management experience. It certainly is not unreasonable to require that a person running an office the size of the Office of the Inspector General have significant prior supervisory and management experience. In sum, these qualifications are both reasonable and substantial. It was not unreasonable for the Council to conclude that the application of these professional qualifications with respect to training and experience will result in the enhanced performance of the Office of the Inspector General. In fact, this is not the first time that the Council has found it necessary to amend the qualifications for the position of Inspector General to ensure that this critical office functioned at a high level. The Council amended the law in 1988 to require, inter alia, that the Inspector General "be a lawyer admitted to practice in the District of Columbia." D.C. Code §1-1182.8 (1981 Ed.). The report of the Committee on Government Operations justified the need for the amendments by stating the Council's view of the importance of the office within the District government:
Report of Committee on Government Operations on Bill 7-95, the "Confirmation Procedures and Sanctions Amendment Act of 1987", at 3 (Sept. 22, 1988). E. The Council exercised its authority in good faith.The Council exercised its authority because it believes that the establishment of specific, objective qualifications to be imposed on inspector generals - present and future -- will enhance the prospects that the office will capably perform its legislatively mandated functions. This is the proper role for the legislature. That the incumbent's unsatisfactory performance served as a catalyst for the Council's comprehensive review of the office of the Inspector General, ultimately leading the Council to establish new qualifications for the position, does not mean those qualifications were imposed for anything but a legitimate legislative purpose. See Maloney, 112 N.W.2d at 604 (The "prime intention of the legislature" in enacting change in qualifications that resulted in incumbent having to vacate the office "was to require stricter professional qualifications of the aspirant for the office mentioned."). A conclusion that the Council's establishment of new qualifications for the position of Inspector General was nothing but a pretext for removing the incumbent Inspector General is belied by the fact that there is a legitimate purpose for establishing the qualifications that extends far beyond their effect on the incumbent Inspector General. There is no suggestion that these qualifications will not be imposed upon all Inspector Generals after June 1, 2003. There is no suggestion that these qualifications are not reasonable and substantial. There is only the incongruous conclusion that the purpose of the legislation must be to remove the incumbent Inspector General because the legislation has the effect of his having to vacate the office. Adoption of the Mayor's position would mean the Council could never impose new qualifications upon an incumbent officeholder if the imposition of the otherwise valid qualifications would have the incidental effect of forcing the incumbent to vacate the office. The Council always would have to wait until the incumbent's term ends before the new qualifications could be imposed. That potentially could entail waits approaching 6 years in cases involving officeholders, like the Inspector General, who serve 6-year terms. Such a holding would have the effect of encroaching upon the Council's constitutional power to establish the qualifications for an office, and would greatly hamper the Council's ability to properly exercise its oversight responsibilities. See In re Massey, 605 P.2d 147 (Kan. 1980) ("It is also a legislative function to determine the qualifications of the officers ... there is no constitutional restriction on the legislature exercising its power as it shall see fit."). This cannot be the state of the law. It would lead to the perverse result that the Council, having in good faith and in the exercise of its best collective judgment determined that any Inspector General needs to possess these qualifications to effectively discharge the duties of the office, would be required to exempt the incumbent from meeting the qualifications. By granting an exemption to the incumbent, the Council, by definition, would be allowing a person it considers unqualified to continue to hold office. The granting of an exemption upon the incumbent would constitute an abdication of the Council's paramount responsibility to the public to ensure that the integrity of the government is being safeguarded by a qualified Inspector General. Here, the granting of an exemption to the incumbent would be especially perverse because the Council previously had determined, in its collective judgment, that the incumbent Inspector General was not performing capably. It is consistent with the Council's oversight responsibilities that it assess the performance of an executive office and take remedial action when warranted. That is what the Council did in this case. The question here is not, Why impose these qualifications upon the incumbent? Rather, the question is, Why would the Council not impose qualifications it believes to be warranted for ensuring the adequate performance of the Office of the Inspector General upon the incumbent? The Council acted in accordance with its paramount duty to the public in establishing qualifications for the position of Inspector General. That should be controlling:
Goodrich v. Mitchell, 75 P.2d 1034-1035 (Kan. 1904). F. The Council properly exercised its authority in adopting the new qualifications on an emergency basis.The entire issue of the timing of the imposition of the qualifications upon the incumbent Inspector General is a red herring because the Mayor's position is that the Council is prohibited by separation of powers from imposing these requirements on the incumbent Inspector General at any time during his tenure. Therefore, the fact that the new qualifications were adopted by the Council on an emergency basis is irrelevant, as is the fact that the new qualifications became effective as of June 1, 2003. If the Council had set the date as January 1, 2004, or even January 1, 2005, the Mayor still would be arguing that the Council's action constitutes a violation of separation of powers because the law would have the effect of forcing the incumbent Inspector General to vacate the office.22 The OCC Opinion suggests that the Council's use of an emergency act to establish the qualifications indicates some impropriety. OCC Opinion at 6 ("The fact that the Council passed the bill on an emergency basis may also raise a court's suspicions about the true intent of the emergency act."). However, the OCC Opinion did not cite any specific impropriety in the adoption of this act on an emergency basis, nor does any impropriety exist. The inclusion of emergency legislative authority in the Home Rule Act by Congress is a recognition that it is a necessary and appropriate legislative procedure. The Council followed its rules and section 412 of the Home Rule Act in adopting D.C. Act 15-78. Section 412 of the Home Rule Act (D.C. Official Code § 1-204.12(a)) authorizes the Council to adopt legislation on an emergency basis. In relevant part, it states that:
The Council made a determination when it adopted Resolution 15-66 (effective March 18, 2003; 50 DCR 2426) that an emergency existed with respect to the need to impose minimum qualifications for the position of Inspector General: "Emergency legislation is required to enable the Office of the Inspector General to raise its standards without subjecting the District government and citizens to further inadequate service." (Exhibit #21). Thus, the Council found that emergency circumstances existed which required immediate amendments to the Inspector General statute. When reviewing the use of emergency power by the Council, this Court has given a great degree of deference to the Council's judgment and given it latitude to make policy choices of what constitutes an emergency. See, United States v. Alston, 580 A.2d 587, 597 (D.C. 1990), citing to AFGE v. Barry, 459 A.2d 1045, 1051 (D.C. 1983). Here, the Council determined that certain minimum qualifications should be possessed by any person who holds the position of Inspector General, and it made no exception for the incumbent Inspector General. This judgment is entitled to deference from this court. III. IN THE PAST WHEN THE COUNCIL LEGISLATED IN A WAY THAT HAD THE EFFECT OF REDUCING THE TERM OF AN INCUMBENT THE MAYOR APPROVED THE LEGISLATION.As amply delineated above, the Council is vested with plenary authority in the Home Rule Act to legislate with respect to qualifications, tenure, the creation and abolishment of agencies, offices, and departments, and has done so for over 25 years. Occasionally, when the Council makes policy changes, the changes have had the incidental effect of abbreviating the tenure of term employees. One recent change involved the terms of the elected members of the Board of Education. The Mayor instead of opposing such changes, advocated that the Council make them. On November 18, 1998, the Board of Elections and Ethics certified the election results for five members of the Board of Education for a four-year term. (45 DCR 9264-9268; Exhibits 13-17). Gail Dixon was certified as the winner of the at-Large Member of the Board of Education; Westy Byrd was certified as the winner of the Ward 2 Member of the Board of Education, Dwight Singleton was certified as the winner of the Ward 4 Member of the Board of Education, Tom Kelly was certified as the winner of the Ward 7 Member of the Board of Education, and William Lockridge was certified as the \N-inner of the Ward 8 Member of the Board of Education. Their terms would have expired at the end of 2002. In 2000, however, the Council, partially at the urging of the Mayor, adopted the School Governance Charter Amendment Act of 2000, effective June 27, 2000 (D.C. Law 13-159) to reduce the members of the Board from 11 to 9 members; with 5 being elected (the President and 4 from the 4 compressed special school districts) and 4 being appointed by the Mayor. As a consequence of this legislation, Gail Dixon, Westy Byrd, Dwight Singleton, Tom Kelly, and William Lockridge's 4-year terms were reduced to approximately 2 years. Instead of vetoing this legislation, the Mayor advocated the passage of this legislation and aggressively campaigned for it both before the Council and to the public. In light of the Mayor's position on the abbreviation of the terms of incumbent school board members, it is ironic that he now objects to legislation adopted by the Council which has the incidental effect of having an incumbent vacate his office prior to the end of his term. IV. CONCLUSIONThe Mayor's refusal to enforce the Inspector General Qualification Emergency Amendment Act of 2003 (and his intent not to enforce the temporary and permanent versions of this law) is contrary to section 422 of the District's Charter and assumes a power reserved under the Charter to the Council, the judicial branch, and more broadly, a power reserved to Congress. To the extent that the doctrine of separation of powers applies in this context, there is no violation of separation of powers here because the Council did not act to remove the incumbent Inspector General. It acted within its legislative authority and consistent with its oversight responsibilities in establishing new qualifications for the position of Inspector General and imposing them upon the incumbent as well as all future inspector generals. If the incumbent did not possess the requisite qualifications to continue the hold office as of June 1, 2003, as it appears is the case, the office became vacant as of that date. It is the Mayor's responsibility to enforce the law. Here, that means the Mayor must determine whether the incumbent Inspector General continues to meet the qualifications for the office. If the Mayor determines that the incumbent does not meet the qualifications, the Mayor should take the necessary steps to fill the vacancy, including, if necessary, taking action to remove the incumbent. Respectfully
submitted, Attorneys for Plaintiffs SUPERIOR COURT OF THE DISTRICT OF
COLUMBIA Linda W. Cropp, Chairman, et al., Plaintiffs, v. Anthony A. Williams, Mayor, Defendant. Civil Action No. 03-4569 CERTIFICATE OF SERVICEI hereby certify that copies of the foregoing Plaintiffs' Motion for Summary Judgment, Statement of Undisputed Material Facts, Memorandum of Points and Authorities in Support of Motion for Summary Judgment, and Exhibits were hand-delivered this I 1 `h day of June, 2003 to the following persons:
Charlotte Brookins-Hudson (#954255) 1. Prior to 1997, this Act was known as the District of Columbia Self-Government and Governmental Reorganization Act. In section 1 1717 of District of Columbia National Capital Revitalization and Self-Government Improvement Act of 1997, approved August 5, 1997 (Pub. L. No. 105-33; 111 Stat. 712), Congress directed that all reference to the Self-Government Act ". . . shall be deemed to be a reference to the District of Columbia Home Rule Act." Title IV of the Home Rule Act is the District Charter. 2. Section 8, clause 17 of the Constitution provides that Congress shall have the power " [t]o exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding tend Miles square) as may be by Cession or particular States, and the Acceptance of Congress, become Seat of Government of the United States. ..". 3. D.C. Official Code § 1-203.02 and 1-204.04, respectively. 4. The amendments were included as part of section 303 of the District of Columbia Financial Responsibility and Management Assistance Act of 1995, Public Law 104-8. 5. D.C. Act 15-78, effective April 29, 2003 (50 DCR 3643). 6. As stated in note 1, Title IV of the Home Rule Act is the District Charter. 7. Marbury v. Madison, 5 U.S. 137, 176 (1803)("It is emphatically the province and duty of the judicial department to say what the law is."); U.S. CONSTITUTION, Article 1, § 8, cl. 17; section 602(c)(1) of the Home Rule Act (m. Official Code § 1-206.02(c)(1) (permanent acts of the Council shall take effect only upon the expiration of the 30-calendar-day period in which either House is in session). 8. See S. Morison and H. Commager, The Growth of the American Republic, 94 (Oxford University Press, 1962) (The Crown had means of preventing colonial legislation considered undesirable, including royal governors veto which could not be overridden). The Founding Fathers in 1787 rejected a proposal at the Constitutional Convention that the "executive have a power to suspend any legislative act" for a specified term. See, Burt Franklin, Debates on the Adoption of the Federal Constitution, p. 154; THE FEDERALIST No. 73, at 444-445 (Alexander Hamilton) (Clinton Rossiter ed., 1999). 9. D.C. Official Code § 1-204.22. 10. Section 422(5) (D.C. Official Code § 1-20422(5)). "Section 422(10) (D.C. Official Code § 1-204.22(10)). 11. Section 404(e) (D.C. Official Code § 1-204.04(e)). 12. Section 404(e) provides that an act vetoed by the Mayor and overridden by the Council "so reenacted shall become law ..." [subject only to Congressional review]. (emphasis added). 13. The Constitution, likewise, limits the president's functions in the lawmaking process to the "recommending of laws he thinks wise and the vetoing of laws he thinks bad." Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 587-588 (1952). (President's seizure of steel mills during strike in midst of Korean Ware constitute impermissible Executive lawmaking). 14. Kendall v. United States, 37 U.S. 524, 613 (1838). See also, The Confiscation Cases, 20 Wall 92, 112-113 (1873) ("No power was ever vested in the President to repeal an Act of Congress."). 15. Committee for Voluntary Prayer v. Wimberly, 704 A.2d 1199, 1201 (D.C. 1997) (proposed prayer initiative raised constitutional issues on its face); applying Hessey v. Burden, 615 A.2d 562 (D.C. 1992) (pre-election review of constitutional challenges to proposed initiatives must be reserved for truly extreme cases). 16. Accord, Stebbins v. Stebbins, 673 A.2d 184, 194 (D.C. 1996) ("A plaintiff, in general, should proceed to trial by the court notwithstanding his belief that the trial court erred in deciding that he is not entitled to a jury trial. Only if the preliminary ruling is so unjustly burdensome or promotive of a wastage of judicial resources should the court consider reversing a subsequent dismissal for refusal to go forward with trial."); quoting Taylor v. Washington Hospital Center, 407 A.2d 585, 590-91 (D.C. 1979). 17. The Council questions whether the separation of powers doctrine even applies to the Office of the Inspector General because it is an office with a high degree of independence that does not perform purely executive functions. See Morrison v. Olson, 487 U.S. 654 (1988); Nixon v. Administrator of General Services, 433 U.S. 425 (1977); Humphrey's Executor, 295 U.S. 602 (1935); . The statute already restricts the Mayor's removal power by making it "for cause" only. D.C. Official Code § 2-302.08(a)(1)(A). During a control year, the Mayor's removal power is further restricted as it is necessary for the Mayor to obtain the approval of the District of Columbia Financial Responsibility and Management Assistance Authority before removing the Inspector General. Id. The budget for the office cannot be altered by the Mayor or the Council. D.C. Official Code § 2-302.08(a)(2). Congress amended the statute to change the term of office from 4 years to 6 years expressly for the purpose of ensuring that the Inspector General's term would not coincide with that of the Mayor, thereby freeing the office from any potential political attachment to a sitting Mayor. H.R. REP. No. 104-96, 104th Congress, 1st Sess., at 4 (March 30, 1995). These factors, and others inherent in the statute, are indicia of a specialized, unique office that is not intended to be subordinate to the Mayor, but instead is designed to retain a high degree of independence from both the executive and legislative branches. 18. For the purpose of this argument, Plaintiffs assume that separation of powers principles apply to the Office of the Inspector General and that the incumbent Inspector General does not possess the necessary qualifications to continue to hold office. Although the Mayor has refused to determine whether the incumbent has the necessary qualifications as part of his decision not to enforce the law, the Mayor's argument as to why he believes the law to be invalid is because it will have the effect of forcing the incumbent to vacate the office. 19. The Mayor explained his decision not to enforce the law in a May 30, 2003 letter directed to the Honorable Linda W. Cropp, the Chairman of the Council. His decision not to enforce the law was based upon an opinion issued the same date by the Office of the Corporation Counsel ("OCC Opinion"). The letter and the opinion are attached as Exhibits 11 and 12. Although the Mayor, in his May 30, 2003 letter, characterizes the legislation as having the "purpose and effect" of removing the incumbent Inspector General, the legal analysis upon which the Mayor relies presumes that the purpose of the legislation is to remove the incumbent because the imposition of the qualifications upon the incumbent will have that effect. Therefore, the Mayor really is arguing that the imposition of the qualifications upon the incumbent constitutes a violation of separation of powers because it will have the effect of forcing the incumbent to vacate the office. 20. Section 404(b) of the Home Rule Act expressly authorizes the Council to "create, abolish, or organize any office, agency, department, or instrumentality of the government of the District and to define the powers, duties, and responsibilities of any such office, agency, department, or instrumentality." D.C. Official Code § 1-204.04(b)). 21. Plaintiffs have been unable to find any other cases that address the issue of whether a legislative change in qualifications that results in the incumbent office holder having to vacate office violates the removal power of the executive in violation of separation of powers. 22. According to the Mayor, the incumbent Inspector General's term ends in May of 2005. |
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