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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.
03-0004569 PLAINTIFFS' MEMORANDUM IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS THE COMPLAINT, OR IN THE ALTERNATIVE, 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
IV. THE COUNCIL HAS AUTHORITY TO AMEND LEGISLATION WHICH
APPLIES EXCLUSIVELY IN AND FOR THE DISTRICT OF COLUMBIA, INCLUDING THE
CONGRESSIONAL AMENDMENTS TO THE INSPECTOR GENERAL STATUTE TABLE OF AUTHORITIESCasesAFGE v. Barry, 459 A.2d 1045 (D.C. 1983) Federal Legislative Authority
U.S. Constitution, Article 1, § 8, cl. 17
Local Legislative Authority
D.C. Official Code § 2-302.08(a)(1)(A)
Superior Court RulesSuper.Ct.Civ. Rule 81(b) Treatises63C Am. Jur.2d § 48 *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.
03-0004569 PLAINTIFFS' MEMORANDUM IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS THE COMPLAINT, OR IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT Preliminary StatementDefendant Mayor Anthony A. Williams asserts in his motion for dismissal, or in the alternative, for summary judgment that: (1) the 1995 Congressional amendments to the IG statute "ratify the separation of powers principles in the Home Rule Act" (Mayor's Memorandum at 10); (2) the Council's action in making the IG statute applicable to the incumbent Inspector General, is an "attempt by the legislature to exercise the executive power of removal" (Id. at 11); (3) the Council's passage of the IG Qualifications Laws on an emergency basis was a scheme "purposely structured to avoid the Congressional review process for acts passed by the Council, as only temporary and permanent legislative acts need be submitted for a period of Congressional review before they can become effective" (Id. at 13); (4) "the Complaint and its request for a mandamus violates every principle governing the grant of such writs in this or any other Court." (Id. at 15); and (5) that the request for mandamus action "is procedurally defective because it attempts to avoid the method duly provided for in the D.C. Official Code for a civil action of quo warranto to test the legality of officeholding by a public officer of the District of Columbia." (Id. at 16). The Mayor's assertions are flawed for several reasons. The Mayor's motion is devoid of any discussion as to the legal basis for the Mayor's refusal to enforce the duly adopted Inspector General Qualifications Emergency Amendment Act of 2003. This is no doubt because no such support exists, especially in light of section 422 of the Home Rule Act that mandates that the Mayor properly execute "all laws relating to the District." The Mayor attempts to distract the Court's attention by focusing on the alleged improper motives for the adoption of the legislation. The Mayor would have this Court believe that an almost unanimous Council would enact the IG Qualification Laws on an emergency, temporary, and permanent basis solely to remove the incumbent Inspector General. The Mayor's arguments that the Council acted with a devious motive is insulting both to the Members of the Council and to the people who elected them. This Court cannot decide this case based on the insulting and false assumption that the District's elected leaders would act with such bad faith. Rather, the Court must accord deference to the judgment of a legislature by presuming that it legislates in good faith. (Council Opening Memorandum at 20-21). The Mayor's arguments wrongfully minimizes the authority given the Council in sections 302 and 404 of the Home Rule Act and defers almost exclusively to the determination made by the Congress with respect to the qualifications policy for the local Inspector General, even though Congress did not preclude the Council from making policy changes to the IG statute. The Mayor does not dispute that the Council has the ability to change the qualifications for office holders. Indeed, the Mayor could not assert such in light of the broad legislative authority given the Council in sections 302 and 304 of the Home Rule Act. It appears that the Mayor's only objection is that the Council may not apply such qualification changes where it has the incidental effect of having the incumbent Inspector General vacate the office on the grounds that the legislation violates the executive's removal power. However, as more fully discussed below, the legislative power to prescribe qualifications is not inconsistent with the executive power of appointment, from which the removal power is derived. The state cases cited by the Mayor do not support his proposition that legislation which causes a position of the incumbent to become vacant is an exercise of the power of removal. In fact, the cases demonstrate that the act of the Council was within its proper legislative authority. Where the change effected by the legislation is substantial, as is the change in qualifications effected by the IG Qualifications Emergency Amendment Act of 2003, it is a valid exercise of legislative power. The awards and commendations received by the incumbent Inspector General and the other documents attached to the affidavit of the incumbenf IG are completely irrelevant to the issues at hand, for they have no bearing on the authority of the Council to adopt this legislation or on the ability of the Mayor to declare a law null and of no effect and to refuse to enforce a duly adopted law of the District of Columbia, following a Council override of his veto, without first seeking a judicial determination as to its validity, which are the issues before this court. The only questions raised in this case are: (I) whether, in the absence of a judicial determination, following a Council override of his veto, the Mayor may refuse to implement or enforce a facially valid law; (2) whether, in the absence of a judicial determination, the Mayor may declare a facially valid law null, and of no effect; and (3) 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 it has the incidental effect of causing the incumbent Inspector General to vacate the office. The answer to all these questions is "no." ArgumentI. THE COUNCIL HAS A RIGHT TO A REMEDY FOR THE MAYOR'S VIOLATION OF SECTION 422 OF THE DISTRICT CHARTER.The Mayor has expressed the view, and asked that this Court find, that the Council "is withouf any judicial recourse" to address the Mayor's violation of the Home Rule Act. Mayor's Supplemental Brief on Issues of Standing at 11. This is inconsistent with our principles of justice. Chief Justice Marshall's now famous quote in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163, 2 L. Ed. 60 (1803)), that it is a "general and indisputable rule, that where there is a legal right, there is also a legal remedy. ..", is applicable to this case. The Mayor has willfully disregarded his obligation under the Home Rule Act, directed subordinate and independent officers of the government not to obey a validly enacted statute, and has declared that certain provisions of the law are null and of no effect, without seeking a judicial determination. This action is a violation of the rights of the Council, and its members under the Home Rule Act, in direct conflict with the Mayor's duties under the Act to "execute all laws relating to the District . .. ," and has rendered the votes of twelve members of the Council "null and of no effect." A. The Mayor Has a Peremptory Duty under Section 422 of the Home Rule Act, to Execute the Laws of the District of Columbia, and the Mayor Has Violated That Duty.The Mayor's duty to be performed is ministerial and his obligation to act is peremptorily and plainly defined. National Treasury Employees Union v. Nixon, 492 F.2d 587 (D.C. Cir. 1974). (The court ruled in favor of plaintiff union and decreed that the President had a constitutional duty to grant the federal pay increases as mandated by Congress.). Explicit and unambiguous provisions of the District Charter1 prescribe and define the responsibilities of the Mayor. The duty imposed upon the Mayor by the Home Rule Act is to "execute all laws of the District ...." He has in the plainest terms refused to do so. All that is required under the law at issue is that he determine whether the current Inspector General meets the qualifications of the law and, if not, nominate a new office holder. Under section 422(2) and (3) of the Home Rule Act, the Mayor is responsible for administering all laws relating to "appointment, promotion, discipline, separation, and other conditions of employment," and for administering the "personnel functions of the District". The abdication of these duties set forth in the District Charter must have legal consequences.
This court has previously enjoined the Mayor from
violating the Home Rule Act and attempting to implement an invalid order
in conflict with his duties under the Act. In Barrio v. Bush, 581 A.2d
308 (D.C. 1990), the Mayor challenged a judgment of the Superior Court
of the District of Columbia, which entered a permanent injunction
ordering the Mayor not to reduce the Board of Education's budget after
the Mayor had issued an order that mandated an overall reduction from
all District departments and agencies except the police department. The
Court of Appeals affirmed the judgment of the trial court that
the Mayor could not ignore the terms of a settlement agreement based
upon his interpretation of subsequent statutory changes without first
seeking "judicial permission to modify the decree. ..." Id. at
311. Barry v. Bush completely supports the proposition advanced by the
Council that the Mayor cannot ignore or refuse to implement a validly
enacted law without first seeking judicial approval. Cf. District o/
Columbia v. American Fed'n of Govt Employees, 619 A.2d 77, 88 (D.C.
1993) (Court in Barn, v. Bush held only that [the act] prohibited
unilateral budget cuts by the Mayor, acting without the Council). See
also, Kelly v. Parents United, 641 A.2d 159 (D.C. 1994), in which the
Court of Appeals affirmed an award of injunctive relief against the
Mayor and an agency director, mandating compliance with the District of
Columbia Public School Nurse Assignment Act of Courts in other jurisdictions have held that residents of a city have the legal right to compel city officials to comply with the city charter provisions. State ex rel. Vanna v. Maple Heights City Council, Cuyahoga County, App. No. 55068, 1988 Ohio App. LEXIS 5215 (Ohio Ct. App., Cuyahoga County Dec. 29, 1988); affirmed in part and reversed in part by State ex rel. Vana v. Maple Heights City Council, 561 N.E.2d 909 (Ohio 1990) (action to remove councilmember for conflict of interest; court affirmed as to issuance of writ of mandamus, reversed as to quo warranto); New York Pub. Interest Research Group v. Dinkins, 632 N.E 2d 1255 (N.Y. 1994) (affirming issuance of a writ of mandamus to compel the city to comply with its charter allocating funds to Independent Budget Office); Duffs v. Branch. 828 S.W.2d 211 (Tex. 1992) (court conditionally granted relator city residents' request for writ of mandamus, because under the city charter, respondents, city council and mayor, were required to order the recall election); Wimmer v. Knight, 259 P. 640 ( Okla. 1927) (Where a contract between city leaders and an engineering firm violated the city charter because the engineers were not city residents, were paid more than allowed, and were not bonded, an injunction was appropriate.). In this instance, the responsibility of the Executive to comply with the law pending a judicial determination of constitutionality is heightened because of the Mayor's own actions. It is the Mayor's' function to make an initial interpretation of the terms and application of a statute. It is another matter entirely where the Mayor directs agencies to refuse to comply with that statute. "To contend, that the obligation imposed on the president to see the laws faithfully executed, implies a power to forbid their execution, is a novel construction of the constitution, and entirely inadmissible.". Kendall v. United States, 37 U.S. 524, 613 (1838). The Mayor vetoed the bill on April 2, 2003, and nearly two months later informs the Council that he will not enforce the law. The only way that the Mayor's refusal to comply with the law can be read to be consistent with the Charter would be to read section 422 as granting to the Mayor "not only the power to execute the laws but also to make [or unmake] some." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 633 (1952). Just as the Court in Youngstown found that fhe President had exceeded his powers under the Constitution, this Court must find that the Mayor has exceeded his authority under the District Charter. B. The Council is Entitled to Injunctive Relief Requiring the Mayor to Execute All Validly Enacted Laws, or to Refrain from Refusing to Enforce Such Laws.The case cited by the Mayor as barring injunctive relief for the Council has no application to an action in Superior Court. (Mayor Memorandum at 15). Citizens Association of' Georgetown, Inc. v. Washington, 291 A.2d 699 (D.C. 1972), held that the D.C. Court of Appeals could not issue a writ of mandamus without an independent basis for its exercise of jurisdiction, because the writ could only be issued in aid of the court's jurisdiction. Id. at 705. The Superior Court is "a court of general jurisdiction with the power to adjudicate any civil action at law or in equity involving local law." Martin v. District of Columbia Courts, 753 A.2d 987, 990 (D.C. 2000); Powell v. Washington Land Co., Inc., 684 A.2d 769, 770 (D.C. 1996) (quoting Andrade v. Jackson, 401 A.2d 990, 992 (D.C.1979)); see also District of Columbia v. Group Ins. Admin., 633 A.2d 2, 13 (D.C. 1993). It is squarely within the power of this Court to hear declaratory judgment actions and to issue all writs necessary in aid of its jurisdiction.2 While it is true that the remedy of mandamus, or a mandatory injunction is a drastic one, to be invoked only in extraordinary circumstances, this case presents such circumstances because all of the necessary elements are met:3 The plaintiff has a clear right to relief; the defendant has a clear duty to act; and there is no other adequate remedy available to plaintiff. Northern States Power Co. v. U.S. Dep't of Energy, 327 U.S. App. D.C. 20, 128 F.3d 754. 758 (D.C. Cir. 1997) (quoting Council of and, for the Blind of Delaware Cty. Valley, Inc. v. Rcgan. 228 U.S. App. D.C. 295, 709 F.2d 1521, 1533 (D.C. Cir. 1983) (en bane)). Affirmative injunctive relief may be granted regardless of whether the case would be proper for issuance of writ of mandamus and regardless of whether the particular defendant is the proper person or entity to be served with such writ, because the writ of mandamus has been abolished by Rule 81. Person v. St. Louis S. F. R. Co., 428 F. Supp. 1148, 1150 (W.D. Okla. 1976). C. The Council is Entitled to a Declaratory Judgment that the Mayor has Violated Section 422 of the Home Rule Act.Declaratory relief is appropriate when it would (1) clarify and settle legal relations at issue, and (2) terminate and afford relief from uncertainty, insecurity, and controversy giving rise to a proceeding. Maryland Cas. Co. v. Rosen, 445 F.2d 1012, 1014 (2d Cir. 1971); Broadview Chemical Corp. v. Loctite Corp., 417 F.2d 998, 1001 (2d Cir. 1969). Additionally, it is appropriate where a substantial public interest is at issue. Public Affairs Associates. Inc. v. Rickover, 369 U.S. 111, 112 (1961); Eccles v. Peoples Bank, 333 U.S. 426, 431 (1948). A request for declaratory relief may be considered independently of whether other forms of relief are appropriate, and the court may grant declaratory relief even though it chooses not to issue an injunction or mandamus. Powell v McCormack, 395 U.S. 486, 517 (1969). D. Quo Warranto is Not a Plain, Speedy, Complete, and Adequate Remedy.The Council does not accept the Mayor's position that it must proceed with the uncertain remedy of quo warranto against a third party. Mayor Memorandum at 16 - 19. However, because the issue has been raised, and may bear on the availability of the relief sought. it is necessary to address that contention. Prior to issuance of an extraordinary writ, it is necessary to demonstrate that there is no plain, speedy, complete, and other adequate remedy available.4 A remedy is inadequate where it is not a remedy against the defendant at all, but a remedy against a third party. State ex rel. Campbell v. Slavik, 14 N.W.2d 186, 189 (Neb. 1944)(Pending appeals no substitute for mandamus). In an action against the Mayor for violating the Home Rule Act, an action for quo warranto is not appropriate. The D.C. Circuit has held that equity will not be barred from "issuing an injunction to restrain invalidly appointed officers if the alternative remedy of quo warranto is inadequate." Andrade v. Lauer, 234 U.S. App. D.C. 384, 729 F.2d 1475, 1498 (1984); citing Columbian Cat Fanciers, Inc. v. Koehne, 68 U.S. App. D.C. 257, 96 F.2d 529, 532 (1938). That court cited the cumbersome, extremely difficult, and uncertain nature of quo warranto proceedings. A plaintiff is not required to seek an alternative remedy that is slow, cumbersome, burdensome, ineffective. or that provides incomplete relief. Moreover, the remedy of quo warranto does not address the Council's complaint. The Council's complaint is that the Mayor has violated his duty under section 422 of the Home Rule Act. In Columbian Cat Fanciers, Inc. v. Koehne, supra, 96 F.2d at 532, the court stated that "the jurisdiction of equity attaches unless the legal remedy, both in respect to the final relief and the mode of obtaining it, is as efficient as the remedy which equity would confer in the same circumstances." See also, Kilbourn v. Sunderland, 130 U.S. 505, 514 (1889): Boyce's Executors v. Grundy, 3 Pet. 210, 215, 7 L.Ed. 655 (1830); Spignul v. Blundon, 53 App. D.C. 29. 30. 287 F. 1006 (1923). "Adequate remedy at law" means a remedy vested in the complainant. to which he may at all times resort at his own option, fully and freely, without let or hindrance." Beach v. Beach Hotel Corp., 117 Conn. 445, 453, 168 A. 785, 788 (1933); Wheeler v. Bedford. 54 Conn. 244, 249, 7 A. 22, 24 (1886). As was said by the court in Toledo Traction. Light & Power Company v. Smith, 205 F. 643, 662 (D.C.N.D. Ohio 1913): "It would seem to us that the remedy by quo warranto is therefore not quite complete, where the party interested must appeal to the discretion of some other person or body." Moreover Andrade v. Lacer, supra, 729 F.2d at 1498, submitted by the Mayor at the status hearing, on June 16, 2003, is a later case than United States ex rel. Noel v. Carmody. 80 U.S. App. D.C. 58, 148 F.2d 684 (1945), a case cited by the Mayor as the leading local court decision construing the quo warranto statute for removal of District officers. Carmody involved an attempt to remove "the President of the Bar Association of the District of Columbia." Id. at 58. The later case of Andrade, involved the attempted removal of federal government employees, and supports the position that quo warranto is not a complete and adequate remedy that would prevent the employees from filing a constitutional claim. That decision inferred that a court should avoid an interpretation that would likely make it impossible for a party to bring substantial constitutional claim. Id. at 1498. As noted in prior pleadings, the Supreme Court's decision in In re Delgado, 140 U.S. 586 (1891) specifically rejected a probate clerk's argument that a quo warranto proceeding and not a mandamus proceeding was proper because the proceeding was not brought to try the title to office but to compel the probate clerk to properly discharge his duties. II. THE COUNCIL'S ESTABLISHMENT OF NEW QUALIFICATIONS FOR THE OFFICE OF THE INSPECTOR GENERAL DOES NOT VIOLATE SEPARATION OF POWERS BECAUSE THEY WERE ENACTED FOR A LEGITIMATE PURPOSE.A. The Mayor's argument that the facially valid law is invalid because it has the incidental effect of the incumbent Inspector General having to vacate office is unsupported by law.The Mayor continues to erroneously assert that a facially valid law that has the incidental effect of the incumbent having to vacate office is a per se violation of separation of powers. This manifestly is nof the law. The relevant case law, including cases cited by the Mayor, firmly establishes that otherwise valid legislation that has the incidental effect of removing the incumbent does not encroach upon the executive removal power in violation of separation of powers. State ex rel. Hammond v. Maxfield, 132 P.2d 660 (Ut. 1943); Lama v. Wagner, 183 N.E.2d 670 (N.Y. 1962), appeal dismissed 371 U.S. 74, cert. den. 371 U.S. 901 (1962). Therefore, contrary to the Mayor's argument, the fact that the incumbent apparently will have to vacate the position because he no longer possesses the required qualifications is not a per se violation of separation of powers. As explained by Plaintiffs in their initial Memorandum, this is the critical difference between legislation that results in an incumbent officer having to "vacate" an office and legislation that "removes" an incumbent. If the legislation has a legitimate purpose, there is no violation of separation of powers because the "removal" of the officer is "incidental" to that legitimate purpose. Conceptually, the incumbent is not being "removed" by the legislature in such instances; rather, the legislation has the incidental effect of the incumbent having, to "vacate" the position.5 As support for his claim that the Council has impermissibly encroached upon the executive's removal power, the Mayor cites to cases setting forth general separation of powers precepts, including the principle that a legislature cannot exercise its legislative authority for the purpose of removing an incumbent office holder. Mayor Memorandum at 7-10. The Council does not disagree with any of these general principles. It agrees that the Council's establishment of qualifications for the position of Inspector General cannot be a "subterfuge" or a "device" for removing the incumbent Inspector General, that it must have been done for a legitimate legislafive purpose. Where the Council and the Mayor differ is on whether the Council's legislative act - establishing qualifications for the position of Inspector General - was a pretext for removing the incumbent Inspector General from office. The Council knows that the law was enacted for the legitimate legislative purpose of establishing new qualifications for the position of Inspector General. As fully explained in Plaintiffs' Memorandum, the qualifications, on their face, are reasonable and substantial and apply to both present and future inspector generals (i.e., directed at the position, not at any person). Conversely, the Mayor simply concludes the enactment of the qualifications is a pretext for removing the incumbent from office. He bases this conclusion solely upon the fact that the law will result in the incumbent Inspector General having to vacate the office:
Mayor Memorandum at 6.
Mayor Memorandum at 11. The Mayor argues that the Council's establishment of new qualifications for the Inspector General position is a prohibited "removal" simply because it has the effect of forcing the incumbent to vacate the office - even though the qualifications themselves may be properly imposed upon future Inspector Generals. In other words, the Mayor argues that the purpose of the legislation is to remove the incumbent Inspector General simply because the new qualifications - although otherwise valid - have the effect of the incumbent having to vacate the office. Thus, the Mayor is arguing that the fact the Inspector General will have to vacate the office means per se that the purpose of the legislation is to remove him, which, in turn, means that the establishment of the qualifications per se violates separation of powers. This, of course, is completely circular reasoning that has no support in the relevant case law.6 B. The Mayor ignores the fact that the qualifications on their face are substantial and reasonable.The Mayor reaches this conclusion regarding the purpose of the legislation without ever examining the legitimacy of the qualifications themselves. In his 20-page memo. he devotes only two fleeting references to the legitimacy of the qualifications, as opposed to the validity of their being imposed upon the incumbent. In the above-quoted passage from page I 1 of Mayor's Memorandum, he concedes that the qualifications may pass muster if imposed prospectively (i.e., not upon the incumbent, but upon his successors in office). Contrastingly, in a footnote. the Mayor states that the "qualification standards in the IG Act are designed to remove Mr. Maddox and bear little relationship to a perceived need to improve the qualifications and performance of future IGs." Mayor Memorandum at 13, n.6. Tellingly, the Mayor wants the Court to focus on everything but the qualifications themselves. Rather than grounding his assertions in the law and analyzing the statute on its face, the Mayor has attempted to bury this Court under a flurry of irrelevant testimonials to the incumbent Inspector General. This is not a referendum on whether the incumbent Inspector General has performed adequately during his tenure. Nor is it a referendum on whether his present qualifications should be deemed sufficient for him to continue to hold the position. Both are irrelevant to resolution of the issue before this Court. Plaintiffs move that they be stricken from the record. Instead of examining the legitimacy of the qualifications, the Mayor argues that the fact the Council chose to impose them upon the incumbent means per se that the incumbent has been targeted for removal in violation of separation of powers, and the purpose of the legislation was to effectuate the incumbent's removal. The Mayor argues that the imposition of the qualifications on an emergency basis betrays the true intent of the Council, which, of course. is to remove the incumbent Inspector General. Mayor Memorandum at 11-12. He then points out that "the Council could have made the new qualifications effective for the next term instead of applying them to the incumbent." Mayor Memorandum at 12. As previously stated by the Council in its Memorandum, the whole timing issue is a red herring. The truth is, the Mayor would challenge this law as constituting a violation of separation of powers if it were imposed upon the incumbent Inspector at amy time during his term. The Mayor's position is that any change in qualifications during an incumbent's term that results in the incumbent having to vacate office is an unconstitutional removal of that officer. Mayor Memorandum at 19 ("There can be no vacancy and the incumbent IG is entitled to continue to hold his office until the expiration of his term, unless removed by the Mayor. .."). This means that the Council could never impose new qualifications upon an incumbent if the imposition of the otherwise valid qualifications would result in the incumbent having to vacate office. The Mayor also argues that the fact that the legislation would not pen-nit the incumbent to serve in a hold-over capacity or on an acting basis constitutes further evidence of the Council's intent to target the incumbent. The Mayor complains that serving in a hold-over capacity "is the way in which appointed administrative officials whose terms have expired are commonly treated." Mayor Memorandum at 13. Once again, however, the Mayor has misstated the applicable law. If the incumbent Inspector General no longer meets the qualifications, he is no longer eligible to hold the office and is required to vacate it. See Miller v. Mendez. 840 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 vacanf 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 public office, one must be eligible and possess the qualifications prescribed by law."). That means the incumbent can no longer continue to serve in a hold-over capacity. Under such circumstances, his term has not "expired." In this respect, the act simply reiterates what is already the law. In addition, the Mayor argues that the "Council's intent to remove Mr. Maddox is further revealed by the fact that the Council added two additional qualification criteria that Mr. Maddox can meet, but the Council did not apply these two new criteria to the incumbent as of June 1, 2003." Mayor Memorandum at 13. As noted by the Mayor, these two qualifications (1) require the Inspector General to have a minimum of seven years of supervisory and management experience and (2) add experience in "law" as a practice area which qualifies a person to hold the office. Prior to the amendments at issue here, the relevant practice areas were limited to experience in "accounting, auditing, financial management analysis, public administration, or investigations." These two criteria were effective on April 29, 2003, the day the emergency act became effective following the Council's 12-1 override of the Mayor's veto. Therefore, they applied to the incumbent Inspector General as of that date. More importantly, the inclusion of these two qualifications provides evidence that the purpose of the legislation was to establish specific, objective qualifications for all inspector generals, not fo remove the incumbent Inspector General. The inescapable conclusion is that these are criteria that the Council, in its collective judgment, believes are necessary to enhance the prospects that the office will capably perform its legislatively mandated functions. By citing only general separation of powers principles as the sole support for his conclusion that the Council has improperly encroached upon his removal power, the Mayor is attempting to create the illusion that this is a clear-cut case of a violation of separation of powers, one that does not require any meaningful analysis. It is not surprising that the Mayor has chosen not to provide any analysis beyond a superficial reading of the cases because the cases he cites do not support his conclusion that this is a per se violation.7 C. The cases cited by the Mayor do not support his proposition that legislation having incidental effect of incumbent having to vacate office is an encroachment on the executive's power of removal.The three Supreme Court cases cited by the Mayor are inapposite because all dealt with statutes that expressly limited the President's removal power. Morrison v. Olson, 487 U.S. 654 (1988) (Act restricted Attorney General's power to remove independent counsel to "for cause" only); Myers v. United States, 272 U.S. 52 (1926) (President could remove postmaster only with approval of Senate); Bowsher v. Synar, 478 U.S. 714 (1986)(Comptroller General could be removed only by joint resolution of Congress or by impeachment). In the latter two cases, the Supreme Court held that limiting the removal power violated separation of powers because the offices in question performed executive functions. In Morrison, the Supreme Court held that the limitation on the removal power was not a violation of separation of powers because the position had a high degree of independence from the executive branch. None of these cases required the Court to determine whether the removal of the officer was for the purpose of the legislation or simply an incidental effect of it. The state cases cited by the Mayor do not support his proposition that legislation which causes a position of the incumbent to become vacant is an exercise of the power of removal. Ahearn v. Bailey. 451 P.2d 30 (Ariz. 1969); State ex. rel. Hammond v. Maxfield, supra: Kelley, v. Clark, 193 A. 634 (Pa. 1937). In fact, they demonstrate that the Council acted within its proper legislative authority. These cases examine whether a legislature abolishing an office and creating another in its place has impermissibly encroached upon the executive's removal power. In assessing whether the underlying legislative purpose is legitimate, the courts have examined the statute on its face to determine whether the legislation has effected a substantial change. If a legislature abolishes an office and creates a new office in its place, the test is whether the newly created office is substantially different than the one it replaces. If it is substantially different, the legislature has acted properly within its authority and there has been no impermissible encroachment upon the executive's removal power. If, however, the newly created office is not substantially different than that which it replaces, the legislature's motives become suspect and the legislative act is presumed to be a pretext for an impermissible removal of an office holder. In State ex rel. Hammond v. Maxfield, supra, the legislature created a new State Engineering Commission, terminated the positions of the members of the existing State Road Commission, and provided that the members of the new State Engineering Commission would be ex officio members of the State Road Commission. The members of the new State Engineering Commission had duties beyond their service on the State Road Commission. including supervision of the State Engineer, serving as the State Aeronautics Commission, and receiving reports from the State Engineer. The court, looking at the law on its face, found a substantial change had been effected by the legislature and, notwithstanding the direct termination of the terms of the members of the State Road Commission by the legislature, upheld it as a bona fide exercise of legislative power. The court stated, as a first principle, that "an office created by the legislature may be abolished by it. Appointment of an officer gives rise to no contract that he may retain the office for the term appointed. No person has a vested right to an office." Id. at 662. "[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." Id. at 665. The test set forth by the court is whether fhe change was "substantial in quality or volume." Id. "If it abolishes one office and puts in its place another by the same or a different name but with substantially the same duties, it will be considered a device to unseat the incumbents. [citations omitted]." Id. at 663. On the other hand, "[i]f the newly created office has substantially new, different or additional functions. duties or powers, so that it may be said in fact to create an office different from the one abolished, even though it embraces all or some of the duties of the old office it will be considered as an abolition of one and the creation of a new or different one. The same is true if one office is abolished and its duties, for reasons of economy are given town existing office or officer. [citations omitted]." Id. at 663-664. The court looked at the face of the law to make its determination:
Id. at 666. In Ahearn v. Bailey, supra, which relied in part on State ex rel. Hammond v. Maxfield, supra, the legislature shortened the terms of the members of the Industrial Commission and increased the number of members that could be appointed by the governor. The court stated thaf the legislature has the right to abolish offices and that an office holder cannot complain if the valid exercise of that right results in the loss of office. It stated that the action will be a device to unseat the incumbent "if a Legislature abolishes an office and puts in its place another by the same or different name but with substantially the same duties..." Id. at 33. In this case, the legislature's action was not substantial because it left the offices of the members intact. It did not abolish an office without the creation of a substitute, abolish two or more offices with substantially the same duties or different duties and combine the duties under one office by a different name or even the same name for reasons of economy or genuine reorganization, or create a new office with substantially new, different or additional functions, duties or powers even though it also embraces all of the duties of the old office. A substantial change will fit naturally into the scheme of reorganization. Id. at 35. "The enlargement of the Commission to five (5) members could have been accomplished without removing the three (3) existing members, thereby encroaching on the Executive Department." Id. at 36. In Commonwealth ex rel. Kelley v. Clark, 193 A. 634 (Pa. 1937), also analyzed in Ahearn v. Bailey, supra, the Civil Service Commission of the City of Philadelphia consisted of three commissioners elected by the City Council for a term of four years. The General Assembly abolished the civil service commission and re-established it with five members, providing that the Mayor would appoint two commissioners and the City Controller appoint two commissioners and the four would elect a fifth commissioner. It was also provided that the act would become immediately effective. Again, under the facts of this case, the court acknowledges the well established principle that an office "exists by the will of the legislature only, and may be abolished at any time, and the incumbent has no standing to complain [citation omitted]." Id. at 637. The defect in the legislation was that it did not abolish the commission because the old commission was simply continued in a different form, i.e., there was no substantial change made by the legislation. "There was no intention to abolish the office; language in the Act of May 19, 1937, supra, that it is abolished is mere subterfuge. The intention to the contrary is too obvious. The best that can be said is that the legislature attempted to abolish and continue the office at one and the same time, an impossible thing." Id. at 636. Pennsylvania law in this matter is further informed by Carey v. Altoona, 16 A.2d 1 (Pa. 1940), a subsequent case. In Carey, a police captain was demoted as a result of a legislative reorganization which eliminated the position of captain. The nature of the inquiry was limited to the substantiality of the ordinance on its face.
The fundamental teaching of these cases, which form the crux of Mayor's position, is that a legislative act which abolishes an office does not impermissibly encroach upon the executive removal power if there is a substantial change in the existing scheme indicative of a legitimate legislative purpose. A substantial change may abolish an office without the creation of a substitute, abolish two or more offices with substantially the same duties or different duties and combines the duties under one office by a different name or even the same name for the reasons of economy or genuine reorganization, create a new office with substantially new, different or additional functions, duties or powers even though it also embraces all of the duties of the old office, or be necessary to accomplish the purpose of the scheme. However, the exercise of the power will be deemed to be a subterfuge and the exercise of the power of removal only if there is no substantial change, i.e., the new office is substantially the same as the office abolished. We have not found any authority holding that a legislature has exercised a power of removal where the newly created office has substantially new, different, or additional functions. duties or powers. See, e.g., State ex rel. Dwyer v. Mayor. 221 P. 524 (Mt. 1923); O'Neill v. Williams, 199 P. 870 (Cal. App. 1921) (cases where demotion of incumbent police officer(s) upheld because of abolishment of position). The test for determining the validity of the qualifications established by the Council - that they be reasonable and substantial - is consistent with the principles set forth in these cases for examining the legitimacy of an abolition of an office. In both instances, the legislature is acting within its legislative authority if it is pursuing a legitimate legislative purpose. Here, if the qualifications, on their face, are reasonable and substantial, the Council's act establishing the qualifications would not constitute an impermissible exercise of the Mayor's removal power. Sec State ex. rel. Buttz v. Marion Circuit Court, 72 N.E.2d 225, 230 (Ind. 1947); Lee v. Clark, 77 S.E.2d 485 (S.C. 1953). This test is certainly not difficult to apply. See, e.g., Duggins v. North Carolina State Board of Certified Public Accountant Examiners, 240 S.E.2d 406 (N.C. 1978) (Qualification of two years of experience under certified public accountant in public practice for issuance of certified public accountant's license will not be set aside if it bears a reasonable relationship to purpose of the statute.). A change that increases an experience requirement from five years of practice to five years and three months of practice would not be substantial. By contrast, the prescription of a minimum experience requirement of seven years where there was none previously, as is the case here, would certainly be substantial. The Mayor effectively concedes that the change in degree of the qualifications is substantial by characterizing them as "more stringent qualifications for the position" and as "different from and more onerous" than the qualifications previously in place. Mayor Memorandum at 11. As previously stated, the Mayor has not argued that the qualifications themselves are not reasonable, only that it is unreasonable to apply them to the incumbent Inspector General. Nor has the Mayor suggested that the qualifications will only be applied to the incumbent, not to future inspector generals. The new qualifications on their face are reasonable and their applicability is not confined to the incumbent Inspector General. The effect of this legislation goes far beyond the incumbent. Under these circumstances, the Council cannot be said to have acted for anything but a legitimate legislative purpose. III. A VIOLATION OF SEPARATION OF POWERS REQUIRES A SIGNIFICANT INTRUSION INTO CORE EXECUTIVE FUNCTIONS THAT IS ABSENT HERE.A legislature encroaches upon the executive branch in violation of separation of powers only when the encroachment disturbs core executive functions. As the Supreme Court has emphasized, it is the degree and severity of the intrusion that matters:
Nixon v. Administrator of General Sevices, 433 U.S. 425, 442 (1977) (citations omitted). The degree of intrusion upon the executive's removal power that is permissible depends upon the character of the office being affected. Humphrey 's Executor v. United States. 295 U.S. 602, 631 (1935) ("Whether the power of the President to remove an officer shall prevail over the authority of Congress to condition the power by fixing a definite term and precluding a removal except for cause, will depend upon the character of the office."). The "real question is whether the removal restrictions are of such a nature that they impede the President's ability to perform his constitutional duty, and the functions of the officials in question must be analyzed in that light." Morrison v. Olson, 487 U.S. 654, 691 (1988). The Supreme Court has held that a legislature can restrict the executive's power to remove officials who do not perform purely executive functions and whose offices are legislatively designed to have a significant degree of independence from the executive. Morrison v. Olson, 487 U.S. 654 (1988); Wiener v. United States, 357 U.S. 349 (1958); Humphrey's Executor v. United States, 295 U.S. 602 (1935). A. The Office of the Inspector General Does Not Perform Purely Executive Functions and is Legislatively Designed to be Independent from the Mayor.The Mayor asserts that the statute establishing the Office of the Inspector General somehow serves to "ratify the separation of powers principles" inherent in the Home Rule Act because it places the office within the executive branch and provides no role for the Council in the removal process. Mayor's Memorandum at 10-11. The Mayor must have been looking at a different statute. An examination of the statutory framework and legislative history underscores that the Office of the Inspector General is legislatively designed to be independent from the Mayor. The Inspector General is not under the Mayor's control and does not make policy. He is to perform his functions in an impartial manner, free of the Mayor's influence. D.C. Official Code §2-302.08. The statute, which the Mayor says was "carefully crafted" by Congress, already places a huge restriction on the Mayor's removal power - the Inspector General has a fixed term of six years and can only be removed by the Mayor, for cause. D.C. Official Code § 2-302.08(a)(1)(A). This kind of legislative restriction upon the executive's removal power is justified only when the office does not perform purely executive functions and has been legislatively designed to have a significant degree of independence from the executive. Morrison v. Olson. 487 U.S. 654 (1988): Wiener v. United States, 357 U.S. 349 (1958); Humphrey's Executor v. United States, 295 U.S. 602 (1935). Contrary to the Mayor's assertions, the fact that the office is nominally housed within the executive branch is of no consequence. See Morrison. 487 U.S. at 689, n. 27 (This "Court has never held that the Constitution prevents Congress from imposing limitations on the President's power to remove all executive officials simply because they wield `executive' powers.") (emphasis in original). The functions of the Inspector General are decidedly not purely executive. There are numerous indicia of independence to be found in the statutory language and the legislative history. The primary mission of the Inspector General is to ferret out corruption within the District of Columbia government. "The Inspector General shall . . . conduct independent fiscal and management audits of District government operations." D.C. Official Code § 2302.08(a)(3)(A) (emphasis added). The statute requires that the Inspector General "(i)ndependently conduct audits, inspections, assignments, and investigations as the Mayor shall request, and any other audits, inspections and investigations that are necessary or desirable in the Inspector General 's judgment." D.C. Official Code § 2-302.08(a)(3)(D) (emphasis added). The Inspector General has to be free from political influence to be able to follow the evidence wherever it may lead, even if it leads to the doorstep of the Mayor. This is why the statute requires that the Inspector General be appointed "without regard to party affiliation." D.C. Official Code § 2-302.08(a)(1)(D).8 The Inspector General is to be non-partisan. This is not an officer who is carrying out the Mayor's will. He cannot be said to report to the Mayor any more than he reports to the Council. Tellingly, the statute requires the Inspector General to report findings of criminal wrongdoing to the Mayor only if appropriate. D.C. Official Code § 2-302.08(a)(3)(F)(ii).9 Congress stated that it increased the term of the Inspector General from 4 years to 6 years because it did not want the term of the Inspector General to coincide with that of any Mayor. It shielded the Inspector General's budget from revision by either the Mayor or the Council because it did not want either to be able to exert political control over the Inspector General's investigations through the power of the purse. The statute prohibits either the Mayor or the Council from making "revisions" to the Inspector General's proposed budget. D.C. Official Code § 2-302.08(a)(2)(A). In Humphrey's Executor, the Supreme Court found similar evidence of legislative intent as mandating its conclusion that Congress could restrict the President's power to remove members of the Federal Trade Commission. The Supreme Court stated that the language of the act, the general purposes of the legislation, and the legislative history demonstrated the intent of Congress to create "a body which shall be independent of executive authority, except in its selection, and free to exercise its judgment without leave or hindrance of any other official or any department of the government." Humphrey's Executor, 295 U.S. at 625-626. In terms of its independence from the executive, the Office of the Inspector General is analogous to the Federal Trade Commission, which the Supreme Court in Humphrey's Executor described as being an office that "cannot in any sense be characterized as an arm or an eye of the executive. Its duties are performed without executive leave and, in the contemplation of the statute, must be free from executive control." Humphrey's Executor, 295 U.S. at 628. In Morrison, the Supreme Court determined that an act restricting the President's ability to remove an independent counsel appointed by a specially created division of the federal courts did not violate separation of powers because of the demonstrated intent of Congress to provide the position with a high degree of independence:
Morrison, 487 U.S. at 692-693. Congress also placed additional restrictions on both the Mayor's appointment and removal powers pertaining to the Office of the Inspector General. During a control year, the Mayor can only appoint or remove the Inspector General with the approval of the Control Board, but the Control Board can remove the Inspector General without the Mayor's approval. D.C. Official Code § 2-302.08(a)(1)(A) and (B). During a control year, the Council has no role to play in the appointment of the Inspector General. Because the incumbent Inspector General was appointed during a control year, in 1999, the Mayor was able to appoint him without the advise and consent of the Council. It was the presence of this very check on executive power - that the President's appointment of Cabinet-level officials were constitutionally required to he approved by the Senate - that led the First Congress to construe the Constitution as implicitly making the President's removal power incident to his appointment power. Myers v. United States. 272 U.S. 52 (1926). B. There is no significant intrusion upon the Mayor's core executive functions.The Mayor attempts to paint the case before the court as a clear-cut picture of a legislature encroaching upon the executive's removal power in violation of separation of powers. It is not. As the Supreme Court has noted, analysis of allegations of encroachment upon the executive's removal power can take many twists and turns:
Weiner, 357 U.S. at 352. The already complex separation of powers analysis is further complicated by the unique governmental situation that exists in the District of Columbia. For the Mayor to state that a statute "carefully crafted" by Congress ratifies separation of powers principles inherent in the "familiar tripartite structure" is Kafkaesque. The constitutional power of the Congress to sit as a super legislature atop the District's governmental structure cannot be neatly reconciled with any conceptualization of a familiar tripartite system. One need look no further than the statute in question to see the power and influence Congress wields when it comes to the District. The state of the law on when a legislature can be said to impermissibly encroach upon the executive's removal power is in flux. What is settled is that the character of the office to which the removal power pertains is the focus of the court's analysis. Offices that do not perform purely executive functions and that have been legislatively designed to be independent from the executive do not raise the same separation of powers concerns as do offices that. out of necessity. need to be subordinate to the Mayor. The Supreme Court has found these distinctions in the nature of the office, first made in Humphrey 's Executor, to be critical:
Weiner, 357 U.S. at 353. Here, the Office of the Inspector General bears all the indicia of an office legislatively designed to be independent from the Mayor. The Council has acted, within its prescribed constitutional authority, to establish qualifications for the position of Inspector General. The imposition of those qualifications apparently will have the effect of the incumbent Inspector General having to vacate the office. The Supreme Court has held that the President's power of removal can be cypress/, limited by legislation if the affected office is one that does not perform purely executive functions and is legislatively designed to be independent from the President. Here, the Council is not lodging the removal power within the legislative branch. The legislation in question only has the effect of the incumbent having to vacate the office because he no longer possess the qualifications the Council, in its collective judgment and in good faith, believes are necessary for the office to perform its critical functions. The question then becomes, Does this effect intrude upon the Mayor's core functions so as to disturb his ability to meet his constitutionally assigned functions? See Nixon v. Administrator of General Services, 433 U.S. 425, 442 (1977). At issue is the proper balancing under these circumstances of these competing powers - the Council's right to set qualifications for office and the Mayor's removal power. Given the independent nature of this office, the Council believes that the balance of the competing powers should weigh in favor of the act. There is no intrusion here that will prevent the Mayor from meeting his constitutional responsibilities. IV. THE COUNCIL HAS AUTHORITY TO AMEND LEGISLATION WHICH APPLIES EXCLUSIVELY IN AND FOR THE DISTRICT OF COLUMBIA, INCLUDING THE CONGRESSIONAL AMENDMENTS TO THE INSPECTOR GENERAL STATUTE.The Council established the Office of the Inspector General in section 208 of the District of Columbia Procurement Practices Act of 1985, which provisions it amended in 1988 (the "Inspector General statute"). (See Exhibit #2 attached to Council's Motion for Summary Judgment). The Mayor makes no mention of its origins, but discusses at length the 1995 amendments made by Congress to the law, emphasizing the "congressionally-approved removal provision." Mayor Memorandum at 6. Aside from the fact that the IG Qualification Laws are not removal provisions, as Plaintiffs' Memorandum and this Reply discuss, the tenor of the Mayor's argument is that Congressionally enacted law, even amendatory, is inviolable and beyond the province of the Council. Were this true, this would not simply be a limitation on the powers of the Council; it would represent a serious erosion of the District of Columbia's home rule powers. However, contrary to the intimation of Defendant, under the Home Rule Act, the Council has authority to amend legislation which applies exclusively in and for the District of Columbia, whether such legislation is organic or amendatory. In the Home Rule Act, Congress delegated its exclusive legislative authority under the Constitution10 to District of Columbia residents subject to certain limitations and reservations. Under section 601 of the Home Rule Act,11 Congress reserved the right to legislate on behalf of the District of Columbia. It provided, in pertinent part:
Further, under section 602(a)(3) of the Home Rule Act, Congress provided that, among the limitations of the legislative authority granted under the Home Rule Act, the Council shall not "[e]nact any act, or enact any act to amend or repeal any Act of Congress. which concerns the functions or property of the United States or which is not restricted in its application exclusively in or to the District ..."13 District of Columbia v. The Greater Washington Central Labor Council, .AFL- CIO14 is the leading case construing the provisions of section 602(a)(3). The Court upheld the Council's repeal of Congressional legislation governing District's workmens' compensation for private sector employees and the enactment of a new scheme, holding that, because the existing act was a local act and construed as state law, it was not necessary for Congress to expressly authorize repeal and transfer of the program (which at the time was being administered by the United States Department of Labor solely with local funds) to local authority.15
In interpreting section 602(a)(3), the court held "that Congress intended in [section] 602(a)(3) to withhold from local officials the authority to affect or to control decisions made by federal officials in administering federal laws that are national in scope as opposed to laws that relate solely to the District of Columbia."17 The Court stated:
Thus, unless Congress has made an express reservation of the right to legislate on a subject, fhe Council may pass any legislation that deals exclusively with District of Columbia matters. In the case of the present inquiry, it is clear thaf the Inspector General statute relates solely to the District of Columbia. The Inspector General is a local official (unlike the federal official who administered the local scheme in District of Columbia v. The Greater Washington Central Labor Council, AFL-CIO), uses local funds, and is concerned only with local matters. Moreover, as opposed to the legislation which the Court considered in District of Columbia v. The Greater Washington Central Labor Council, AFL-CIO, whose genesis was a Congressional act, the Inspector General statute is local law which was amended by Congressional act. Accordingly, it is and continues to be local law. As held in District of Columbia v. The Greater Washington Central Labor Council, AFL-CIO, the mere fact that Congress legislates on a purely local matter does not, by itself, reserve the matter to exclusive Congressional action. While Congress may reserve the exclusive right to legislate on a particular subject and preclude local legislation, it has not done so. In contrast, Congress has recently exercised this prerogative. The local Public Charter Schools Act of 199619 and the federal District of Columbia School Reform Act of 199520 were adopted almost simultaneously21 to authorize and regulate charter schools in the District of Columbia. Although Congress was aware of the Council's efforts to adopt legislation authorizing charter schools while it was considering similar legislation for the District of Columbia, the federal legislation did not expressly preempt the Council from legislating with respect to charter schools. Apparently, Congress intended for there to be two separate tracks by which to establish a public charter school in the District of Columbia. However, because some of the provisions included in the local charter act conflicted with provisions in the federal act, Congress amended the federal act to invalidate any local provisions that are inconsistent with the federal law, as follows:
As opposed to the express reservation of the right to amend its local legislation in the case of charter schools, Congress made no such reservation in the case of its amendments to the Inspector General statute. Furthermore, it should be noted that, in the case of local and federal charter school acts, the federal act was the last to become effective. Thus, the subsequent Congressional reservation demonstrates that a later Congressional enactment on a subject, without a further express reservation of authority, does not constitute a reservation prohibiting further local action. It is clear that the Council is authorized under the Home Rule Act to amend any of the provisions of the Inspector General statute, including the qualification or removal provisions. As is its prerogative in acting for the public interest and welfare in matters applying exclusively in and for the District of Columbia, the Council has amended the qualification provisions; the removal provisions of the Inspector General statute have not been amended. The Mayor confuses the operation of qualification provisions which cause a vacation of an office with existing removal provisions. The Mayor recounts at length the involvement of both Congress and the now defunct District of Columbia Financial Responsibility and Management Assistance Authority ("Control Board") in the creation of the Office of the Inspector General and the appointment and confirmation of the incumbent Inspector General. Mayor's Memorandum at 4-5. He apparently attaches great significance to the fact that the incumbent met the qualifications laid down by Congress and that the Control Board, in approving him as Inspector General in 1999, determined that he was "fully qualified" to fill the position, seemingly suggesting that the Council should defer to the judgment of both.23 Despite the Mayor's suggestion to the contrary, as explained above, neither the judgments of the Congress nor those of the Control Board are binding upon the Council. Ironically, the Mayor evinces the Home Rule Act as support for his implied suggestion that the Council should defer to the judgments of those bodies. V. The Council properly exercised its authority in adopting the new qualifications on an emergency basis and did not act to avoid Congressional review.The Mayor infers that passage of legislation on an emergency basis was a scheme "effective June 1, 2003-although expiring shortly afterwards... conveniently but purposely structured to avoid the Congressional review process for acts passed by the Council, as only temporary and permanent legislative acts need be submitted for a period of Congressional review before they can become effective." The Mayor's Memorandum at 13. As stated more fully in Plaintiffs' Memorandum, the use of emergency legislative authority is a necessary and appropriate legislative procedure, which Congress recognized by its inclusion in the Home Rule Act. Like permanent legislation, the authority for emergency legislation extends to all rightful subjects of legislation except as expressly excepted under section 602 of the Home Rule Act. That the Council acted to avoid Congressional review is simply not true. The Council passed not only emergency legislation, but temporary and permanent legislation as well. In fact, on April 30, prior to the applicability of the qualification provisions, the temporary legislation began its 30-day Congressional review period, which will be followed by Congressional review of the permanent legislation. This was not a scheme designed to go in effect and expire "shortly afterwards." The passage of the laws on an emergency, temporary, and permanent basis was designed to put a law into effect on the effective date of an emergency (here. April 29, 2003) and apply continuously thereafter to the present and future Inspector Generals. It is in accord with Council practice to pass legislation which it considers important in this manner. For instance, the annual Budget Support Act, which implements the District of Columbia budget, is passed in this manner with concurrence and encouragement of the Mayor. It is customary for the Council to consider and pass, where appropriate, emergency legislation which the Mayor himself has sent to the Council for introduction; he would not suggest that these bills should not have been considered because the resulting emergency acts will evade Congressional review. If the Council had truly sought to evade Congressional review, it would have passed emergency legislation only, and not temporary or permanent legislation. Under an efficacious scheme, the qualifications would have applied immediately, the Mayor would have nominated a new Inspector General within 30 days, and a new Inspector General would have been installed thereafter. In that instance, there would not have been any Congressional review, nor would the new qualifications apply to subsequent Inspector Generals. Here, the Council passed temporary and permanent legislation in accordance with customary practice since the inception of the Home Rule Act, which will allow the review provided for in the Home Rule Act. (See Exhibits #6 and 7, attached to Council's Motion for Summary Judgment). "When, as in this case, the Council `has acted to address concerns about public safety (or welfare) by enacting legislation which Congress has had the opportunity to review,' [citation omitted], the risk of an "erosion of congressional prerogatives." [citation omitted], by the interim enactment of emergency legislation is greatly reduced." Atchison y. District of Columbia, 585 A.2d 150 (D.C. 1991). The Mayor questions the judgment of the Council as to the necessity for the immediate implementation of the legislation. In Resolution 15-66 (effective March 18, 2001,50 DCR 2426). the Council determined that emergency circumstances 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." (See Exhibits #21, attached to Council's Motion for Summary Judgment). Moreover, as stated in Plaintiffs' Memorandum, 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 as to what constitutes an emergency.
Atchison v. District of Columbia, supra at 156. In accordance with its legislative authority under the Home Rule Act, the Council determined that the circumstances required "quick legislative action for the preservation of the public peace, property, health, safety or morals." Atchison v. District o/ Columbia, supra at 156, quoting AFGE v. Barn, 459 A.2d 1045,1050 n.9 (D.C. 1983). This judgment is entitled to deference from this court. CONCLUSIONFor the reasons set forth in this memorandum and in the memorandum in support of Plaintiffs' motion for summary judgment, the Court should grant the Plaintiffs' motion for summary judgment.
Charlotte Brookins-Hudson 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.
03-0004569 STATUTORY APPENDIX FOR PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION TO DISMISS THE COMPLAINT, OR IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT
HRA § 302 (D.C. Official Code § 1-203.02) Federal Legislative Authority§1-203.02. Legislative powerExcept as provided in §§ 1-206.01 to 1-206.03, the legislative power of the District shall extend to all rightful subjects of legislation within the District consistent with the Constitution of the United States and the provisions of this chapter subject to all the restrictions and limitations imposed upon the states by the 10th section of the 1st article of the Constitution of the United States. §1-204.04. Powers of the Council(a) Subject to the limitations specified in §§ 1-206.01 to 1-206.04, the legislative power granted to the District by this chapter is vested in and shall be exercised by the Council in accordance with this chapter. In addition, except as otherwise provided in this chapter, all functions granted to or imposed upon, or vested in or transferred to the District of Columbia Council, as established by Reorganization Plan No. 3 of 1967, shall be carried out by the Council in accordance with the provisions of this chapter. (b) The Council shall have authority 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. (c) The Council shall adopt and publish rules of procedures which shall include provisions for adequate public notification of intended actions of the Council. (d) Every act shall be published and codified upon becoming law as the Council may direct. (e) An act passed by the Council shall be presented by the Chairman of the Council to the Mayor, who shall, within 10 calendar days (excluding Saturdays, Sundays, and holidays) after the act is presented to him, either approve or disapprove such act. If the Mayor shall approve such act, he shall indicate the same by affixing his signature thereto, and such act shall become law subject to the provisions of §1-206.02(c). If the Mayor shall disapprove such act, he shall, within 10 calendar days (excluding Saturdays, Sundays, and holidays) after it is presented to him, return such act to the Council setting forth in writing his reasons for such disapproval. If any act so passed shall not be returned to the Council by the Mayor within 10 calendar days after it shall have been presented to him, the Mayor shall be deemed to have approved it, and such act shall become law subject to the provisions of §1-206.02(c) unless the Council by a recess of 10 days or more prevents its return, in which case it shall not become law. If, within 30 calendar days after an act has been timely returned by the Mayor to the Council with his disapproval, two-thirds of the members of the Council present and voting vote to reenact such act, the act so reenacted shall become law subject to the provisions of §1-206.02(c). (f) In the case of any budget act adopted by the Council pursuant to § 1-204.46 and submitted to the Mayor in accordance with subsection (e) of this section, the Mayor shall have power to disapprove any items or provisions, or both, of such act and approve the remainder. In any case in which the Mayor so disapproves of any item or provision, he shall append to the act when he signs it a statement of the item or provision which he disapproves, and shall, within such 10-day period. return a copy of the act and statement with his objections to the Council. If. within 30 calendar days after any such item or provision so disapproved has been timely returned by the Mayor to the Council, two-thirds of the members of the Council present and voting vote to reenact any such item or provision, such item or provision so reenacted shall be transmitted by the Chairman to the President of the United States. In any case in which the Mayor fails to timely return any such item or provision so disapproved to the Council, the Mayor shall be deemed to have approved such item or provision not returned, and such item or provision not returned shall be transmitted by the Chairman to the President of the United States. In the case of any budget act for a fiscal year which is a control year (as defined in §47-393(4)), this subsection shall apply as if the reference in the second sentence to "ten-day period" were a reference to "five-day period" and the reference in the third sentence to "thirty calendar days" were a reference to "5 calendar days." §1-204.22. Powers and duties.The executive power of the District shall be vested in the Mayor who shall be the chief executive officer of the District government. In addition, except as otherwise provided in this chapter, all functions granted to or vested in the Commissioner of the District of Columbia, as established under Reorganization Plan No. 3 of 1967, shall be carried out by the Mayor in accordance with this chapter. 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, including but not limited to the following powers, duties, and functions: (1) The Mayor may designate the officer or officers of the executive department of the District who may, during periods of disability or absence from the District of the Mayor. execute and perform the powers and duties of the Mayor. (2) The Mayor shall administer all laws relating to the appointment, promotion, discipline. separation, and other conditions of employment of personnel in the Office of the Mayor, personnel in executive departments of the District, and members of boards, commissions, and other agencies, who, under laws in effect on the date immediately preceding January 2, 1975, were subject to appointment and removal by the Commissioner of the District of Columbia. All actions affecting such personnel and such members shall, until such time as legislation is enacted by the Council superseding such laws and establishing a permanent District government merit system, pursuant to paragraph (3) of this section, continue to be subject to the provisions of acts of Congress relating to the appointment, promotion, discipline, separation, and other conditions of employment applicable to officers and employees of the District government, to § 1-207.13, and where applicable, to the provisions of the joint agreement between the Commissioners and the Civil Service Commission authorized by Executive Order No. 5491 of November 18, 1930, relating to the appointment of District personnel. He shall appoint or assign persons to positions formerly occupied, ex officio, by the Commissioner of the District of Columbia or by the Assistant to the Commissioner and shall have power to remove such persons from such positions. The officers and employees of each agency with respect to which legislative power is delegated by this chapter and which immediately prior to January 2, 1975, was not subject to the administrative control of the Commissioner of the District, shall continue to be appointed and removed in accordance with applicable laws until such time as such laws may be superseded by legislation passed by the Council establishing a permanent District government merit system pursuant to paragraph (3) of this section. (3) The Mayor shall administer the personnel functions of the District covering employees of all District departments, boards, commissions, offices and agencies, except as otherwise provided by this chapter. Personnel legislation enacted by Congress prior to or after January 2, 1975. including. without limitation, legislation relating to appointments, promotions, discipline.. separations, pay, unemployment compensation, health, disability and death benefits, leave, retirement, insurance. and veterans' preference applicable to employees of the District government as set forth in § 1207.14(c), shall continue to be applicable until such time as the Council shall, pursuant to this section, provide for coverage under a District government merit system. The District government merit system shall be established by act of the Council. The system may provide for continued participation in all or part of the Federal Civil Service System and shall provide for persons employed by the District government immediately preceding the effective date of such system personnel benefits, including but not limited to pay, tenure, leave, residence, retirement, health and life insurance, and employee disability and death benefits, all at least equal to those provided by legislation enacted by Congress, or regulation adopted pursuant thereto, and applicable to such officers and employees immediately prior to the effective date of the system established pursuant to this chapter, except that nothing in this chapter shall prohibit the District from separating an officer or employee subject to such system in the implementation of a financial plan and budget for the District government approved under subpart B of subchapter VII of Chapter 3 of Title 47. and except that nothing in this section shall prohibit the District from paying an employee overtime pay in accordance with § 7 of the Fair Labor Standards Act of 1938 (29 U S.C.S. ; 20 ). The District government merit system shall take effect not earlier than 1 year nor later than 5 years after January 2, 1975. (4) The Mayor shall, through the heads of administrative boards, offices, and agencies. supervise and direct the activities of such boards, offices, and agencies. (5) The Mayor may submit drafts of acts to the Council. (6) The Mayor may delegate any of his functions (other than the function of approving or disapproving acts passed by the Council or the function of approving contracts between the District and the federal government under § 1-207.31) to any officer, employee, or agency of the executive office of the Mayor, or to any director of an executive department who may. with the approval of the Mayor, make a further delegation of all or a part of such functions to subordinates under his jurisdiction. Nothing in the previous sentence may be construed to permit the Mayor to delegate any functions assigned to the Chief Financial Officer of the District of Columbia under subchapter 1-A of Chapter 3 of Title 47, without regard to whether such functions are assigned to the Chief Financial Officer under such section during a control year (as defined in § 47-393(4)) or during any other year. (7) The Mayor shall appoint a City Administrator, who shall serve at the pleasure of the Mayor. The City Administrator shall be the chief administrative officer of the Mayor. and he shall assist the Mayor in carrying out his functions under this chapter, and shall perform such other duties as may be assigned to him by the Mayor. The City Administrator shall be paid at a rate established by the Mayor. (8) The Mayor may propose to the executive or legislative branch of the United States government legislation or other action dealing with any subject, whether or not falling within the authority of the District government, as defined in this chapter. (9) The Mayor, as custodian thereof, shall use and authenticate the corporate seal of the District in accordance with law. (10) The Mayor shall have the right, under rules to be adopted by the Council, to he heard by the Council or any of its committees. (11) The Mayor is authorized to issue and enforce administrative orders, not inconsistent with this or any other Act of the Congress or any act of the Council. as are necessary to carry out his functions and duties. (12) The Mayor may reorganize the offices, agencies, and other entities within the executive branch of the government of the District by submitting to the Council a detailed plan of such reorganization. Such a reorganization plan shall be valid only if the Council does not adopt, within 60 days (excluding Saturdays, Sundays, and holidays) after such reorganization plan is submitted to it by the Mayor, a resolution disapproving such reorganization. §1-206.01. Retention of constitutional authority.Notwithstanding any other provision of this chapter, the Congress of the United States reserves the right, at any time, to exercise its constitutional authority as legislature for the District, by enacting legislation for the District on any subject, whether within or without the scope of legislative power granted to the Council by this chapter, including legislation to amend or repeal any law in force in the District prior to or after enactment of this chapter and any act passed by the Council. §1-206.02. Limitations on the Council.(a) The Council shall have no authority to pass any act contrary to the provisions of this chapter except as specifically provided in this chapfer, or to:
(b) Nothing in this chapter shall be construed as vesting in the District government any greater authority over the National Zoological Park, the Nafional Guard of the District of Columbia. the Washington Aqueduct, the National Capital Planning Commission, or, except as otherwise specifically provided in this chapter, over any federal agency, than was vested in the Commissioner prior to January 2, 1975. (c)(1) Except acts of the Council which are submitted to the President in accordance with Chapter I 1 of Title 31, United States Code, any act which the Council determines, according to § I - 204.12(a), should take effect immediately because of emergency circumstances, and acts proposing amendments to subchapter IV of this chapter and except as provided in § 1-204.62(c) and § 1204.72(d)(l) the Chairman of the Council shall transmit to the Speaker of the House of Representatives, and the President of the Senate, a copy of each act passed by the Council and signed by the Mayor, or vetoed by the Mayor and repassed by two-thirds of the Council present and voting, each act passed by the Council and allowed to become effective by the Mayor without his signature, and each initiated act and act subject to referendum which has been ratified by a majority of the registered qualified electors voting on the initiative or referendum. Except as provided in paragraph (2) of this subsection, such act shall take effect upon the expiration of the 30-calendar-day period (excluding Saturdays, Sundays, and holidays, and any day on which neither House is in session because of an adjournment sine die, a recess of more than 3 days, or an adjournment of more than 3 days) beginning on the day such act is transmitted by the Chairman to the Speaker of the House of Representatives and the President of the Senate, or upon the date prescribed by such act, whichever is later, unless during such 30-day period, there has been enacted into law a joint resolution disapproving such act. In any case in which any such joint resolution disapproving such an act has, within such 30-day period, passed both Houses of Congress and has been transmitted to the President, such resolution, upon becoming law, subsequent to the expiration of such 30-day period, shall be deemed to have repealed such act, as of the date such resolution becomes law. The provisions of § 1-206.04, except subsections (d), (e), and (f) of such section, shall apply with respect to any joint resolution disapproving any act pursuant to this paragraph.
28 U.S.C. § 1651. Writs(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law. (b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction. 28 U.S.C. § 2201. Creation of remedy(a) In a case of actual controversy within its jurisdiction, except with respect to Federal taxes other than actions brought under section 7428 of the Internal Revenue Code of 1986 [ 26 USCS §74281, a proceeding under section 505 or 1146 of title 11, or in any civil action involving an antidumping or countervailing duty proceeding regarding a class or kind of merchandise of a free trade area country (as defined in section 516A(f)(10) of the Tariff Act of 1930 { 19 USCS §1516a(f)(l0)]), as determined by the administering authority, any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such. (b) For limitations on actions brought with respect to drug patents see section 505 or 512 of the Federal Food, Drug, and Cosmetic Act [21 USCS ** 355 or 360b]. D.C. Official Code §38-1802.10. Application of lawd) Waiver of application of duplicate and conflicting provisions. -- Notwithstanding any other provision of law, and except as otherwise provided in this subchapter, no provision of any law regarding the establishment, administration, or operation of public charter schools in the District of Columbia shall apply with respect to a public charter school or an eligible chartering authority to the extent that the provision duplicates or is inconsistent with any provision of this subchapter. SUPERIOR COURT OF THE DISTRICT OF COLUMBIA Linda W. Cropp, Chairman, et al., Plaintiffs, v. Anthony A. Williams, Mayor, Defendant. Civil Action No.
03-0004569 CERTIFICATE OF SERVICEI hereby certify that copies of the foregoing Plaintiffs' Memorandum in Opposition to Defendant's Motion to Dismiss the complaint, or in the Alternative, for Summary Judgment were hand-delivered this 20th day of June, 2003 to the following persons:
Charlotte Brookins-Hudson (#954255) 1. Title IV of the Home Rule Act is the District Charter. 2. In McIntosh v. Washington, 395 A.2d 744, 748 (D.C. 1978), the Court of Appeals stated that a court possessing general equity jurisdiction has authority to grant declaratory relief as an incidental power inherent in such jurisdiction, and that "the Superior Court possess[es] general equity jurisdiction." (Citations omitted). See also, 28 U.S.C. § 2201 et seq. ("any court of the United States, upon the filing of an appropriate pleading. may declare the rights and other legal relations of any interested party"), and 28 U.S.C. § 1651 ("all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions"). 3. As indicated in our supplemental pleadings, Super. Ct. Civ. Rule 81(b), maintains that "[r]elief heretofore available by mandamus ... may be obtained by appropriate action or by appropriate motion under the practice prescribed in these Rules.". 4. This standard is a reflection of the general principle that "equitable relief will not he granted where the plaintiff has a complete and adequate remedy at law. Kakaes v. George Wash. Univ., 790 A.2d 581, 583 (D.C. 2002); District of Columbia v. WICAL Ltd. P'ship, 630 A.2d 174, 184 (D.C. 1993) (quoting Marshall v. District of Columbia, 458 A.2d 28, 29 (D.C. 1982)); accord, District of Columbia v. N. Washington Neighbors, Inc., 336 A.2d 828, 829 (D.C. 1975) (per curiam). 5. The Mayor either does not understand this distinction or is intentionally blurring the lines. For example, the Mayor maintains that the Council must proceed in quo warranto, because "the appropriate vehicle for plaintiffs' attempt to remove the incumbent IG is through a quo warranto proceeding." Mayor Memorandum at 17. The Council, however, is not seeking to remove the incumbent Inspector General, nor is it seeking a court order that he be removed. 6. The Mayor gets it right in the final sentence of footnote 5 of his Memorandum: "In other words, the legislature must be exercising its legitimate legislative powers, and not encroaching on the executive power of removal." Mayor Memorandum at 9, n. 5. In the abolition cases, if the abolishment of an office had a purpose beyond changing officers. the legislature was acting within its authority to abolish and create offices. If it was acting within its own authority, the legislature, by definition, was not encroaching upon the executive power of removal. 7. In its footnote 8, citing Bishop v. Wood, 426 U.S. 341(1976) and Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), the Mayor suggests that the incumbent Inspector General will be deprived of a property interest in his position without due process, as "for cause" employees have a property interest in their employment and may not be discharged without notice and an opportunity to be heard. However, these cases involved a removal for cause by executive action pursuant to an existing statute. This case involves the vacation of office incident to a legislative change, not a removal for cause. As is clear under well-established law, an incumbent has no property interest in the office which he or she holds; the opportunity to hold public office is considered a privilege. 63C Am. Jur. 2d Public Officers and Employees §11; Dodge v. Board of Education, 302 U.S. 74, 80 (1937); Butler v. Pennsylvania, 501 U.S. 402 (1850). 8. The requirement that the Inspector General be appointed "without regard to party affiliation" is in the statute, as amended, and was in the statute prior to the amendments. 9. "The Inspector General shall . . . Forward to the Mayor, within a reasonable time of reporting evidence of criminal wrongdoing to the Office of the U.S. Attorney or other law enforcement office, any report regarding the evidence, if appropriate." D.C. Official Code §2-302.08(a)(3)(F)(ii) (emphasis added). 10. 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 fend Miles square) as may be by Cession or particular States, and the Acceptance of Congress, become Seat of Government of the United States ...". 11. D.C. Official Code § 1-206.01. 1 2. Id. 13. D.C. Official Code § 1-206.02(a)(3). 14. 442 A.2d 110 (D.C. 1982), cert. denied, 460 U.S. 1016 (1983). 15. The Court contrasted this to an earlier, express transfer of the public services program to the District of Columbia which "required express congressional legislation since it was entrusted to the Department of Labor by a federal statute that is not applicable exclusively to the District of Columbia." 442 A.2d at 115. 16. Id. 17. 442 A.2d at 116. 18. Id. 19. D.C. Official Code § 38-1701.01 et seq. It became effective on May 26, 1996 as D.C. Law 11-135. 20. D.C. Official Code § 38-1800.02 et seq. It became effective on April 26, 1996. 21. See fn. 15 and 16. 22. D.C. Official Code § 38-1802.10(d). Section 120(b)(1) of District of Columbia Appropriations Act, 2001, approved November 22, 2000 (Pub. L. No. 106-522; 114 Stat. 2440) (amending section 2210 of the District of Columbia School Reform Act of 1995). 23. Although the Control Board often acted in a manner akin to the Wizard of Oz, it was far from infallible, as is evidenced by the current fiscal problems confronting the District's privatized health care system for indigents that was created after the Control Board, over the Council's objection, enacted legislation abolishing D.C. General Hospital.
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