PAGENO="0001" DISTRICT OF COLUMBIA INTEREST RATE MODIFICATION cf(\( ~) ~ ~t~&t ~ J~ ~ ~ HEARING BEFORE THE SUBCOMMITTEE ON GOVERNMENTAL EFFICIENCY AND THE DISTRICT OF COLUMBIA OF THE COMMITTEE ON GOVERNMENTAL AFFAIRS UNITED STATES SENATE NINETY-SIXTH CONGRESS FIRST SESSION ON S. 1992 and S 2005 NOVEMBER 14 1979 Printed for the use of the Committee on Governmental Affairs c U.S. GOVERNMENT PRINTING OFFI~JIJI~ I 0 19~O 60-238 0 WASHINGTON : 1980 PAGENO="0002" COMMITTEE ON GOVERNMENTAL AFFAIRS ABRAHAM RIBICOFF, Connecticut, Chairman HENRY M. JACKSON, Washington CHARLES H. PERCY, Illinois THOMAS F. EAGLETON, Missouri JACOB KJAVITS, New York LAWTON CHILES, Florida WILLIAM V. ROTH, JR., Delaware SAM NUNN, Georgia TED STEVENS, Alaska JOHN GLENN, Ohio CHARLES McC. MATHIAS, JR., Maryland JIM SASSER, Tennessee JOHN C. DANFORTH, Missouri DAVID PRYOR, Arkansas WILLIAM S. COHEN, Maine CARL LEVIN, Michigan DAVID DURENBERGER, Minnesota RICHARD A. WEGMAN, Chief Counsel and Staff Director Eu E. NOBLEMAN, Counsel CONSTANCE B. EVANS, Minority Staff Director ELIZABETH A. PREAST, Chief Clerk SUBCOMMITTEE ON GOVERNMENTAL EFFICIENCY AND THE DISTRICT OF COLUMBIA THOMAS F. EAGLETON, Missouri, Chairman CARL LEVIN, Michigan CHARLES McC. MATHIAS, JR., Maryland TED STEVENS, Alaska IRA SHAPIRo, Chief Counsel and Staff Director MARGARET P. CRENSHAW, Staff Counsel (II) PAGENO="0003" CONTENTS Page Opening statement: Senator Eagleton 1 WITNESSES WEDNESnAY, NOVEMBER 14, 1979 Marion S. Barry, Jr., Mayor, the District of Columbia, accompanied by Barbara Washington, Assistant City Administrator for Intergovern- mental Relations 3 Arrington Dixon, Chairman, Council of the District of Columbia, accom- panied by James Christian, General Counsel, and Bruce French, Legisla- tive CounseL. 9 Malcolm E. Peabody, member, board of directors, Washington Board of Realtors, accompanied by Norris A. Dodson 96 James E. Murray, Senior Vice President and General Counsel, Federal National Mortgage Association~~ 98 Philip R. Brinkerhoff, President, Federal Home Loan Mortgage Corpora- tion 107 Walter L. Mess, president, Mortgage Bankers Association of Metropolitan Washington 121 Thomas J. Owen, chairman of the board and president of Perpetual Federal Savings and Loan Association of Washington, D.C., representing the Metropolitan Washington Savings and Loan League 125 Joseph Tydings, former U.S. Senator from the State of Maryland 130 Alphabetical list of witnesses: Barry, Marion S., Jr.: Testimony Letter to Oakley Hunter, president, Federal National Mortgage Association, November 9, 1979 6 Brinkerhoff, Philip R.: Testimony 107 Prepared statement, with attachment 112 Christian, James: Testimony 9 Dixon, Arrington: Testimony District of Columbia's pleadings before the D.C. Court of Appeals 12 Dodson, Norris A.: Testimony 96 French, Bruce: Testimony 9 Mess, Walter L.: Testimony 121 Murray, James E.: Testimony 98 Prepared statement 102 Owen, Thomas J.: Testimony- 125 Peabody, Malcolm E.: Testimony~-- 96 Tydings, Joseph: Testimony 130 Washington, Barbara: Testimony 3 Additional material submitted for the record: Text of S. 1992 132 Text of 5. 2005 134 Letter to Senator Eagleton from Oscar M. Johnson, November 14, 1979 137 Memorandum to Mayor Marion Barry, Jr., from Judith W. Rogers, Corporation Counsel, District of Columbia, with attachment, November 9, 1979 138 Emergency actions report, November 9, 1979 146 Judge George H. Revercomb's opinion 156 Appeal brief of plaintiff-appellee, the Washington Home Ownership Council, Inc 173 1976 to 1978 opinions of D.C. Corporation Council on use of emergency legislation 229 (m) PAGENO="0004" PAGENO="0005" DISTRiCT OF COLUMBIA INTEREST RATE MODIFICATION WEDNESDAY, NOVEMBER 14, 1979 U.S. SENATE, SUBCOMMITTEE ON GOVERNMENTAL EFFICIENCY AND THE DISTRICT OF COLUMBIA, COMMITTEE ON GOVERNMENTAL AFFAIRS, Washington, D.C. The subcommittee met, pursuant to notice, at 2:22 p.m., in room 2203, Dirksen Senate Office Building, Hon. Thomas F. Eagleton (chairman of the subcommittee) presiding. Present: Senator Eagleton. Staff present: Eli Nobleman, staff counsel, Committee on Govern- mental Affairs; Ira S. Shapiro, chief counsel and staff director of the subcommittee; Margaret P. Crenshaw, counsel; Glenn Smith, counsel; Emily Eiselman, professional staff member; Eileen Mayer, staff counsel; and Marion Morris, professional staff member. OPENING STATEMENT OF SENATOR EAGLETON Senator EAGLETON. The Subcommittee on Governmental Efficiency and the District of Columbia is in session this afternoon to take testimony on 5. 1992 and 5. 2005, bills which would waive the con- gressional review period for the Interest Rate Modification Act of 1979, a District of Columbia act passed by the City Council last Tuesday, November 6. 5. 1999 would also modify the emergency act provision of the District's Home Rule Act. I realize that this hearing was scheduled on short notice and that, for most of you, Monday was a holiday. That you were able to respond so quickly indicates both your concern about and the seriousness of the mortgage situation in the District. For those who are unaware of the events of last week and the reasons for this hearing, let me provide a bit of background. Under the District of Columbia Self-Government and~ Governmental Reorganization Act, better known as' `the Home Rule Act, the District of Columbia can enact permanent legislation which becomes law only after a period of congressional review-namely, 30 legislative days- and only after both Houses have not passed a concurrent resolution of disapproval. The Home Rule Act also recognizes, though, that in exceptional situations, the District of Columbia government must be `permitted to act rapidly and have legislation take effect with no congressional layover (1) PAGENO="0006" 2 Therefore, the Home Rule Act provides that two-thirds of the District Council can pass "emergency legislation" which takes effect without congressional review and which stays in effect for 90 days. The Home Rule Act is silent on whether the emergency legislation may be renewed. The District government, however, has repeatedly renewed emer- gency legislation, and in the area of condominium conversion, this practice was challenged and struck down in an October 19 decision of District of Columbia Superior Court Judge George Revercomb. Judge Revercomb held that the successive reenactment of emer- gency law-lO times, I might point out, in the condominium conver- sion case-exceeded the District's proper authority under the emer- gency legislation. In light of that decision, the Federal National Mortgage Association-known as Fannie Mae-questioned the legal- ity of recent loan agreements made in the city, since many of the loan agreements were made under a 15-percent District usury ceiling passed twice as emergency legislation. Consequently, we learned on Tuesday, November 6, that Fannie Mae would no longer buy loans in the District of Columbia if the loans were in excess of the permanent usury ceiling of 11 percent. That very day the District hurried to enact a 15-percent usury ceil- ing as permanent legislation, and, as required, the legislation was transmitted to Capitol Hill, where it now awaits the congressional review period. At the earliest, the review period would end near Christmas, a span of time which under the circumstances is not terribly tenable. On Wednesday, November 7, following the Fannie Mae action, the Federal Home Loan Mortgage Corporation-otherwise known as Freddie Mac-also refused to buy loans in the District, and .by Friday, November 9, with the two major lenders in the Washington market not buying loans, real estate transactions in the District came virtually to a halt. Individuals found they could not go to settlement; new residents found there was no financing available for a new home pur- chase; families leaving the District learned they could not sell their homes. Many of these individuals have conveyed their problems and concerns to the subcommittee. Congress, of course, can rectify the situation by making an excep- tion to the Home Rule Act of 1973 so that the congressional review period is waived, thereby allowing the 15-percent usury ceiling ap- proved by the District last Tuesday to become permanent law im- mediately. Meeting in emergency session, the House District Com- mittee approved such a waiver last Thursday,' and the full House gave support for the waiver yesterday afternoon. Senator Mathias has introduced a waiver bill in the Senate, and I join with both my House colleagues and Senator Mathias and urge that the waiver be ap- proved immediately. I must emphasize, however, that the waiver of the home rule review procedure should not set a precedent. The Home Rule Act foresaw emergencies arising in the District of Columbia and gave the District of Columbia legislative authority to deal with them. The interest rate' crisis would not have occurred, nor would it have been brought to the attention of Congress, if the emergency section of the Home Rule Act had consistently been implemented solely for emergencies. PAGENO="0007" 3 For that reason I find it difficult to review the sequence of events without concluding that some basic change in the emergency pro- vision of the Home Rule Act is.needed. In the past year, for example, 69 percent of the legislation passed by the District was adopted by the emergency route. Only 31 percent was subject to congressional review. Thus, emergency legislation has become the rule rather than the exception. My legislation, which is before you now and which I explained in detail in my floor statement, would change this. It would accommodate the legitimate needs of the District to move rapidly in an emergency without waiting for congressional review, but it would insure that emergency legislation will not stay in effect indefinitely or become a regular alternative to the ordinary legislative process. Some of you will argue that it is imperative to raise the interest ceiling immediately and that consideration of an amendment to the emergency. provision of the Home Rule Act complicates the task and risks delay. Well, I could agree with that. But delay is not inevitable if we confront the emergency issue squarely and try to solve the prob- lem. The record of overreliance on the emergency provision is clear beyond question. It should also be clear that my proposal will sub- stantially improve the situation, protecting the District's legitimate needs and the integrity of the legislative process. Our first witness this afternoon is the Mayor of the District of Columbia, the Honorable Marion S. Barry. Welcome, Mr. Mayor, we are delightedjo have you with us. You may proceed. TESTIMONY OF MARION S BARRY, ~R, MAYOR, THE DISTRICT OF COLUMBIA; ACCOMPANIED BY BARBARA WASHINGTON, AS- SISTANT CITY ADMINISTRATOR FOR INTERGOVERNMENTAL RELATIONS Mayor BARRY. Mr. Chairman, I. have with me Ms. Barbara Washington, who is Assistant City Administrator for Intergovern- mental Relations for the District of Columbia government. Mr. Chairman, I do not have a prepared statement. Originally, I was not going to appear on behalf of the District government to make a statement. But, recognizing the nature of this situation and the fact that you and I talked yesterday about the need to at least present a clear, concise view from the executive branch of government and to join in with the Council, I thought I would cancel some other appoint- ments and come before you. Mr. Chairman, I appreciate thia opportunity to present the views of the District of Columbia government on S. 1992 and 5. 1999 and also H~R. 5811, which was passed by the House yesterday. Mr. Chairman, I would like to urge that these two issues be sepa- rated-that is, the question of the waiver and the 30-day layover period which confronted us on November 6 and the whole question of the emergency powers of the Council. I think, Mr. Chairman, you and I would both agree that we ought to reluctantly tamper with the charter. I have asked on a number of occasions that persons not go into it because, once you open it up, it allows opportünties for persons who don't agree with our degree of self-government to get into it and create mischief. PAGENO="0008" 4 Second, Mr. Chairman, we received this proposed legislation just yesterday. We are talking about serious consequences of what happens. I would urge you, Mr. Chairman, to go forward on the waiver part, to adopt the House bill this week, and hold additional hearings. I thmk the chairman of the House committee, Mr Dellums, has agreed to hold hearings and to look at this whole question of the emergency powers. Let me also say, Mr. Chairman, I think that the court suit that was ified by the Home Ownership Corp. before Judge Revercomb has been misinterpreted. I would like to enter into the record a letter I wrote to Mr. Oakley Hunter on November 9, 1979. He is president of the Federal National Mortgage Association. In discussion with Mr. Hunter, I indicated that I thought that Fannie Mae had acted precipitously in moving ahead to cutoff buymg of secondary mortgages and that they had not been in touch with the D.C. Corporation Counsel or anybody m the District of Columbia government We have an opinion from the corporation counsel. Let me just indicate for the record that the Home Ownership case challenged the Council's authority under section 4 12(a) of the District of Columbia Self-Government and Governmental Reorganization Act, 87 Stat. 788, D.C. Code, sec. 1-146. The court indicated that that was a singular case before it. Also, Mr. Chairman, the court made it very, very clear that it declared unlawful this particular piece of legislation which had been enacted some 10 times by emergency But the court suit was very clear that the court is only empowered to prospectively enjoin enforcement of an act unlawfully enacted by the council Therefore, even imagining the worst set of facts, the second emergency is later declared invalid. Retroactive invalidation of all loans made pursuant thereto would be an improbable judicial outcome. So, I think the record ought to be clear that Judge Revercomb did not declare that the Council had not had the authority to enact emergencies. He did not even say how many emergencies. He just said, in this particular case that 10 emergencies, he thought-which is 900 days-was excessive. So, I think the record ought to be clear that it is our view-cor- poration counsel's view-that the Council has the full authority to enact a number of emergencies. The charter is silent in that area. So, I think we ought to wait and look at the whole question of emergen- cies. It is the foundation of this government's ability to act quickly, as you very well know. If we did not have the congressional review period, if we had complete autonomy from the Congress, complete autonomy from the President, we would not need this. So, I would urge very strongly that you separate out those two. Mr. Chairman, I would like to support the Senate's effort, your efforts, and Mr Mathias' efforts to waive the 30-day period We think that home ownership and buying of mortgages and purchasing. homes and selling those homes is very important in our city This will immediately relieve the situation I have indicated~ to the Federal Home Mortgage Association people that, in my view, there is no gap. Nevertheless, the Senate should act quickly to enact ILR. 5811. The present emergency, the second emergency, expires January 3, 1980. PAGENO="0009" 5 I am not going to comment, Mr. Chairman, at all on your proposed bill. I think it would be premature to do so. I have not had a chance to look at it. Moreover, I have been advised by the Corporation Coun- sel that, since this litigation is proceeding, and the Corporation Counsel is the principal lawyer for the city, both the Council and the execu- tive, and we support the Council and their right to enact even the 10 emergencies, that it would be inappropriate for me to go but so far in discussing it, or even discuss it at all. So, my comments would be limited to two. One is urging you to separate out the two circumstances, even though they are inter- related. Second is to urge you to adopt the posture that you will go with H.R. 5811 and that, in the next week or two, we will come pre- pared to discuss the whole nature of the emergencies. I hear the figure 69 percent used as a number. We don't know and have not had a chance to analyze what that really means. Mr. Chairman, in some instances an emergency is an emergency at the time that it happens; after 90 days it is no longer an emergency, and therefore there is no need for permanent legislation. So, we need a chance to analyze all of that. Finally, I would like to say that the executive branch ~ioins in with the City Council in stating very clearly the legislative preroga- tives and powers of the Council to enact a number of emergencies. The question of how many is something for us to decide. The lower court's ruling has been stayed. There is an en banc hearing on this matter be- fore the District of Columbia Court of Appeals. Being a former U.S. attorney and being a lawyer, you never know what courts are going to do. My Corporation Counsel informs me that she thinks that we have a good case. But, moreover, legislatively, I think we ought to wait on this one. I am committed to coming back on behalf of the executive to work with you and the House on finding a reasonable approach to this whole question of emergencies. Thank you, Mr. Chairman. Senator EAGLETON Thank you, Mr Mayor I appreciate your testimony. I appreciate the delicate situation you are in as Mayor with a case pending in court Your own Corporation Counsel is litigating the matter before Judge Revercomb, and that will be taken on appeal So, I will not question you at this time on the issue of successive emergencies and other matters that might impact upon the lawsuit. Although not in name, you are in a sense, by reason of your official position, a party litigant in the suit. So, you may be excused. Mayor BARRY. Mr. Chairman, I would like to introduce into the record our letter of November 9 to Mr. Oakley Hunter, which contains the Corporation Counsel's opinion to me and also contains the motion for summary reversal. Senator EAGLETON. That will be made part of the record. [The letter follows:] PAGENO="0010" 6 TDE DISTRICT OF COLUMBL& MARION S. BARRY. JR. WASHINGTON, DC. 20004 November 9, 1979 Mr. Oakley Hunter President Federal National Mortgage Association 1133 Fifteenth Street, N.W. Washington, D.C. 20005 Dear Mr. Hunter: This letter is being written to you to respectfully request that the action taken by the Federsl National Nor~gage Asso- ciation of November 2, .1979 respecting its decision to refuse. the further purchase of conventional loan packages in the District be reconsidered and rescinded; In accordance with suggestions made during a meeting with Mr. James Murray, the Vice President and General Counsel, I am attaching hereto a legal memorandum of the Corporation Counsel for your consi- deration. :~` In view of the obvious disruptions and the confusion that has anc will continue to restit it' this mortgage and other i_nan- cial nart'ats ~or the act_ot' taen b) your ~ssoc~at_on I urge that the action taken on November 2nd be rescinded i~ediately As the.Corporation Counsel has advised, it is believe~ by the City that the decision of Judge P.evercomb respecting the condo- min_un-re-t control legislation w~ll be ~e~ersed the very near future~-. Unless your decision is cancelled, the District may not he able to quickly recover from what may be regarded as an er~theously imposed, and clearly prejudicial, `moratorium.' Certa_nlj pend~g settlereDt closings ~ be indef_n_tely adjou~ed~ Purchasers, who have placed substantial do~rn pay- - ments, ~The in jeopardy of losing such moneys because of failure to comolète the sales transaction. Finally, a further corve~_~c~-ig of hous~-ig in the D_strict may come to a vir~ual st~dstill.~r~Such inactivity in our local housing market could be part_cu1~r1y devastating to the District s economy PAGENO="0011" 7 Unless your decision is reversed iumediately, I fear it will result in most serious consequences for the District. Al- ready, your decision on a moratorium has had an.undesired ripple effect locally. The Federal Home Loan Bank Board has imposed a similar constraint. As such, the secondary market is virtually closed to this City. Various local lending institutions have followed your lead. I stress the Opinion of the Corporation Counsel that any risk or exposure~of FNMA, based on prevailing law, is minimal, and that even if Judge Revercomb's decision is affi~ed on a~peal, and should court action then be invoked regarding the usury legislation, the prevailing view is that such court action, would, if at all, reach to such legislation only on a prospective basis. As such, and from a purely business judgment, the continued in- vestment of FNMA in the mortgage market in the District is certainly a prudent risk. While the District of Columbia is seeking all avenues of re- lief, including Congressional action, you can act immediately to alleviate the current. situation, and .your consideration of, and assistance in, this matter is earne~tly requested. - . p~ncerely, . Mayor - 2 - PAGENO="0012" 8 Senator EAGLETON. Thank you very much, Mr. Mayor. Before calling the next witness, I wish to point out that I am not a party litigant in any sense to the suit, so I opine on the law. I will put mto the record opmions by the previous corporation counsel of the District of Columbia, wherein the previous corporation counsel on several occasions pointed out his legal opinion t;o the City Council and to others to whom he addressed his opinion. His opinion was that successive emergencies were in grave doubt. He stated that they would be subject to court challenge and that the Council was treading on very thin ice with successive emergencies. Also, .1 will opine as an individual. I used to be attorney general of Missouri. This issue of emer~ency legislation has* been litigated in almost every State of the union. Where it has been litigated, cases analogous to the case before Judge Revercomb have been consistently lost. There is very little legal authority for successive or repetitive emergencies. Various legislative bodies have resorted to this tech- nique, both on a local level and on a State level through the State legislature. Very consistently the appellate courts of the States have knocked out superficial, cosmetic, nominal emergencies. It will be made part of the case, I am sure, on appeal to the appellate court of the District of Columbia, the whole record of the City Council with respect to emergencies. We have a computer printout or some- thing analogous thereto that gives the statistics insofar as emergencies are concerned. I said in my opening statement that, in the last calendar year, 69 percent of all legislation passed by the District of Columbia was an emergency. Let me just give you a little of the flavor of the emergencies-and I used the word "flavor" advisedly because the first category of legislation deals with ice cream vendors. Listen to the acts that have been declared to be emergency acts by the District of Columbia relating to ice cream vendors: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 emergency acts pertaining to ice cream vendors. "Amends for 90 days regulation governing vending business in public places so as not to apply to vending of prepackaged frozen novelties, ice creams, and other froien desserts using dry ice." Wow, what an emergency. The next one: "Amends for 90 days council regulation 7439, operating of vending vehicle stands and equipments' `-another emergency. "Amends for 90 days council regulation 7439, licensing and roadway vending." There is a whole series in 1977. Emergency Vendors' Regulation Amendment Act-emergency. -- Emergency Vendors Regulation Amendment Extension-emergency. Vendors' License Fees Emergency Act. Emergency New Vendors Prepayment Extension Act. And so on and so forth. So, there are U emergency acts just for ice cream vendors. We have 39 emergency statutes dealing with the closing of public alleys-39 emergencies to close public alleys. Now we've got the Post-Secondary Reorganization Act: "To exercise the powers of the abolished Board of Higher Education with respect to the licensing of public postsecondary educational institu- tions." PAGENO="0013" 9 An Emergency Education Licensure Act of 1977: "To authorize the Board of Trustees of the University of the District of Columbia to continue to exercise on an emergency basis certain powers of the Board of Higher Education." And then a whole series of educational institution licensure extension acts, all done on an emergency basis-and so on, and so on, and so on. What the record will show before the appellate court is that the District of Columbia City Council has decided out of, I guess, a sense of convenience unto itself, that they will declare practically every statute or ordinance that comes before the Council to be something of an emergency nature, tack an emergency clause on to it, pass it by the requisite number of votes, and there it is. And the procedure finally came to its illogical end before Judge Revercomb with respect to the condo bill: 10 consecutive emergencies. So, the city is beset, ladies and gentlemen, with two crises, one could say. One is the usury crisis. The current law is 11 percent. Money market rates being what they are, that 11-percent rate is obviously an immediate anachronism. The second crisis-and one that has to be dealt with just as quick- ly-is that every ordinance of the District of Columbia that has been enacted pursuant to an emergency clause is in jeopardy. Every ordinance of the District of Columbia Council with an emergency clause is in jeopardy. There is no way of escaping that. I will bet dollars to doughnuts that Judge Revercomb is affirmed unanimously on appeal-unanimously on appeal. And every law that has an emergency clause and was enacted pursuant to that procedure is in jeopardy. It is not just these innocuous ice cream vendors acts. I guess the Republic won't fall if some of this stuff is declared to be illegal; for example, the ice cream vendors. But the District of Colum- bia Council has passed other laws of significance that are in jeopardy. To wait, then, for this case to go up to the appellate court to be unanimously and summarily reversed and then to have legal challenges to a whole existing body of law is asinine. So, we are going to move on it, and we are going to move now. We are going to try to solve both crises at the same time. I will call our next witness, Mr. Arrington Dixon, the Chairman of the Council of the District of Columbia. TESTIMONY OF ARRINGTON DIXON, CHAIRMAN, COUNCIL OF THE DISTRICT OF COLUMBIA, ACCOMPANIED BY JAMES CHRISTIAN, GENERAL COUNSEL; AND BRUCE FRENCH, LEGISLATIVE COUNSEL Mr. DIXON. Mr. Chairman, I appreciate those introductory re- marks. I am joined today by two of the officers of the Council: the General Counsel to the Council, James Christian, who is to my left; and my Legislative Counsel to my right, Bruce French. I appear before you this afternoon to urge the expeditious and favorable consideration of S. 1999. As you are aware, this legislation would permit the Interest Rate Modification Act of 1979, act 3-119, to take effect immediately. We in the District of Columbia are faced with a crisis situation in our financial market because lending institu- tions have been forced, due to a perceived cloud of legal uncertainties, PAGENO="0014" 10 to cease making mortgage money available. Enactment of S. 1999 would eliminate this cloud of uncertainty. I would, therefore, strongly urge this subcommittee to report S. 1999 minus section 2. Though I can well understand your concerns with respect to the Council of the District of Columbia's exercise of its emergency powers, now is not the time nor the crisis which we face the appropriate opportunity to address those concerns. Mr. Chairman, the reason we are here today is to provide relief for a crisis. Citizens of the District of Columbia are at the moment endur- ing hardships which S. 1999, if enacted expeditiously, would relieve. I would urge that other concerns not cause undue delay in that process. The House of Representatives yesterday, recognizing the need for quick action, passed H.R. 5811, a measure nrhich achieves the very purpose which S. 1999 could help achieve. Effective and timely relief which we seek could be lost if 5. 1999 is not narrowly focused. There- fore, I would urge deferral to a future time the examination of the Council's emergency powers. And, I might add, consideration should be given at that time to possible elimination of the 30-day congres- sional review period now required for all permanent enactments of the District of Columbia. There is no question in my mind that that requirement has helped, in fact created, the very situation which we are now addressing. Senator EAGLETON. Why is that? Mr. DIxoN. Mr. Chairman, it is my opinion that many of the emergency pieces that are being considered- Senator EAGLETON. What you are saying is that, in order not to have it come up for congressional review, the City Council, as a matter of routine custom and habit, concocted the regimen of attach- ing the emergency clause on to every conceivable piece of legislation to get around the clear mandate of the charter. Mr. DIXON. Mr. Chairman, that was not my rationale. My rationale was that, oftentimes because of the delay, particularly during the previous Council sessions before the alteration of the review period, the extended time that legislation could lay over at the Federal level did in fact require that there be emergency actions repeatedly passed to, in fact- Senator EAGLETON. Well, Congress was in session on March 10, 1975, when you enacted the first emergency ice cream vendor law. Now, what was the emergency that existed on March 10, 1975 with respect to prepackaged ice cream and other frozen desserts using dry ice? Mr. DIXON. Mr. Chairman, as you probably know, the Council had just been organized and established in January of that year. Hav- ing been a member of a legislative body for so long, you understand it does take time to organize and- Senator EAGLETON. All right. Then let's go to March 1977. By that time the Council had been organized for 2 calendar years. Act 2-10, Emergency Vendors Regulation Amendment Act. Congress was m session in March 1977. It stayed in session close on to theend of that calendar year. What was the emergency with respect to act 2-10? Mr. DIXON. Mr. Chairman, I think that, with the exception. of a few, it would take me at least sometime, as I suggested m my state- ment, to properly assess what did occur. That assessment, I believe, PAGENO="0015" 11 in a deliberative manner might allow us to fashion the kind of modifica- tion to our emergency powers that would be good for the city as well as the- Senator EAGLETON. What about the 39 emergency acts dealing with a number of public alleys? Mr. DIxON. Mr. Chairman, again I suggest, particularly because of our posture in court and also because it would require, I think, an evaluation of what actually caused those emergencies to be enacted for us to give you a good response so we could fashion legislation to deal with the problem. Senator EAGLETON. In your experience in political life in the District of Columbia, can you think of any situation where there was an emer- gency with respect to ice cream vendors in the District of Columbia? Mr. DIXON. Mr. Chairman, I suggest that, again, I need to look at that. There are things at the local level that- Senator EAGLETON. Just off the top of your head, by means of commonsense recollection, do you know of any ice cream vendor emer- gency since you have been in public life? Mr. DIXON. Mr. Chairman- Senator EAGLETON. Can you think of one? Were the ice cream vendors going to have a shootout at high noon somewhere? Were they going to burn down the Smithsonian Institution? What was the emergency about-any emergency you can think of about an ice cream vendor? Mr. DIXON. Mr. Chairman, if you look back at the facts, I think you will find that Congress modified some regulations which, in fact, would allow vendors to serve tourists who come to the mall during the summer. We, in fact, may have been-again I suggest we might need to look at the facts because we are impacted by many things in this town. And that may have been one of the reasons why the council felt it needed to act in that manner, particularly as that related to trying to assist very, very marginal businesses such as vendors and to foster economic development in this town to try to relieve tax burdens and provide some additional tax sources. Again, Mr. Chairman, I think on each one of them there may be good, or there may be questionable reasons, but the facts, if in fact they were looked at, I believe we might be able to at least fashion a mean- ingful alteration or meaningful review of the council's emergency powers. We have been trying-and I would want to, if you would permit me-to submit for the record the District's pleadings that are before the D.C. Court of Appeals which deal with these issues in a substan- tive manner. If that would be permissible, I would like to have those included in this record for your review, the pleadings of the District government. Senator EAGLETON. The pleadings will be made part of the record. [The material referred to follows:] PAGENO="0016" 12 SuPFIITOR COURT OF THF DISTRICT OF COLUMBIA Civil Division THE WASHINGTON HOME OWNERSHIP COUNCIL, INC. Suite 400 South 1800 M Street, N. W. Washington, D.C. 20036 Plaintiff, v. ; Civil Action No. 10624-79 DISTRICT OF COLUMBIA a municipal corporation District Building 14th and F Streets, N. W. Washington D C 20004 Defendant. MOTION OF DEFFNDANT, DISTRICT OF COLUMBIA, FOR SUMMARY JL1DGMEN'r AND IN OPPOSITTCY~ TO ~PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT Pursuant to SCE-Civil Rule 56, defendant, District of Columbia, moves for summary judgment on the grounds that there is no genuine issue as to any material facts and defendant is entitled to judgment as a matter of law Defendant, District of Columbia, opposes plaintiff's motion for summary judgment since defendant is entitled to judgment as a matter of law. JUDITH W. ROGFRS - Corporation Counsel, D.C. JOHN H. SUDA Acting Deputy Corporation Counsel, D. C. JAMFS J. STANFORD (193805) Assistant Corporation Counsel, D. C. Attorneys for Defendant District Building Washington, D. C. 20004 727-6303 PAGENO="0017" 13 CERTIFICATF or' STRVICE I hereby certify that a copy of the foregoing Motion of Defendant Dlstrlctpf Columbia, for Summary Judgment and in Opposition to plaintiff's Motion for Summary Judgment, together with Memorandum of Polints and Authorities In Support thereof Statement of Material Facts Not in Dispute and Order hand-delivered to Stephen M Sacks Esquire, Attorney for Plaintiff 1229 19th Street N W Washington D C 20036 this.-7~thdayof September 1979 Assistant Corporation Counsel D C Attorney for Defendant District Building Washingt n, D. C. 20004 -2- 60-238 0 - 80 - 2 PAGENO="0018" 14 SUPERIOR COURT or THE DIS fRICT or COLUMBIA - Civil Division THE WA~HINGTON HOME OWNERSHIP COUNCIL, INC. Plaintiff, V. DISTRICT OF COLUMBIA Defendant. Civil Action No. 10624-19 STATFMENT OF MATERIAL FACTS NOT IN DISPUTE Pursuant to SCR Civil Rule 12-1(k), defendant, District of Colum- bia, submits that there is no genuine issue as to the following material facts and that the following material facts are not in dispute: 1. This is an action for a declaratory judgment, injunctive and other relief to declare unlawful the following "emergency" acts passed by the Council of the District of Columbia pursuant to D.C. Code, §1-146(a) (Non-cum. Supp. VI, 1979): Count I (Complaint) a. Emergency Condominium and Cooperative Stabili- zation Act of 1979, Act 3-44, 25 D. C. R. 10363 b. Emergency Condominium and Cooperative Stabii- zation Act of 1979, Act 3-95, 26 D. C. R. 1014 Count II (Complaint) c. Emergency Cooperative Regulation Act of 1976, Act 1-189, 23 D.C.R. 4941 d. Emergency Cooperative Regulation Act of 1977, Act 2-13, 23 D.C.B. 7683 e. Second Emergency Cooperative Regulation Act of 1977, Act 2-47, 24 D.C.R. 207 f. Third Emergency Cooperative Regulation Act of 1977 Act 2-88 24 D C R 3177 g. Second Emergency Cooperative Regulation Act of 1978, Act 2-171, 24 D.C.R. 9265 PAGENO="0019" 15 h. Third Emergency Cooperative Regulation Act of 1978, Act 2-239, 25 D.C.R. 1480 i. Fourth Emergency Cooperative Regulation Act of 1978,Act 2-290, 25 D.C.R. 4332 j. First Emergency Cooperative Regulation Act of 1979, Act 3-2, 25 D.C.R. 7680 k. Second Fmergency Cooperative Regulation Act of 1979, Act 3-37, 25 D.C.R. 9918 1. Third Emergency Cooperative Regulation Act of 1979, Act 3-79, 26 D.C.R. 642 Count III (Complaint) m. Emergency Offer to Purchase Act of 1978, Act 2-273. 25 D.C.R. 2545 n. Emergency Multi-Family Rental Housing Purchase Act of 1978, Act 2-277, 25 D.C.R. 3419 o. Second Fmergency Offer to ~kirchase Act of 1979, Act 2-315, 25 D.C.R. 6120 p. Emergency Multi-Family Rental Housing Purchase Act of 1979, Act 2-314, 25 D. C. R. 6118 q. Second Emergency Multi-Family Rental Housing Purchase Act of 1979, Act 3-15, 25 D.C.R. 8787 *r. First Emergency Offer to Purchase Act of 1979, Act 3-16, 25 D. C. R. 8793 s. Third Emergency Multi-Family Rental Housing Purchase Act of 19.79, Act 3-53, 25 D.C.R. 10880 t. Second Emergency Offer to Purchase Act of 1979, Act 3-54, 25 D.C.R. 10886 u. Fourth Emergency Multi-Family Rental Housing Purchase Act of 1979, Act 3-90, 26 D.C.R. 986 v. Latest Conforming Emergency Offer to Purchase Act - ofl979, Act 3-96, 26D.C.R. 1022 2. The Council passed each and every emergency act cited in paragraph numbered 1 above pursuant to D. C. Code §1-146(a) (Non- cum. Supp. VI, 1979), and in accordance with the procedures set forth therein for the enactment of emergency acts. 3. Along with each and every emergency act cited in para- graph numbered 1 above, the Council adopted a resolution declaring the existence of an emergency and setting forth its reasons for such declaration. -2- PAGENO="0020" 16 4 Th Cooperative Regulation Act of 1979 Act 3-63 26 D C B 361, ~was enacted by the Council as a permanent act signed by the Mayor, and received by the House and Senate on July 18, 1979, to commence its 30 legislative day layover time pursuant to D.C. Code §1-147(c) Non-cum. Supp. 1979) 5. The Offer to Purchase Act of1979, Act 3-75, 26 D.C.R. 664, was enacted by the Council as a permanent act, signed by the Mayor, and received by the Senate and House on August 7, 1979, to commence its 30 legislative day layover time pursuant to D. C. Code, §1-147(c) (Non-cum. Supp. VI, 1979). 6. The Multi-Family Rental Housing Purchase Act of 1979, Act 3-62, 26 D. C. B. 358, was enacted by the Council as a per- manent act, signed by the Mayor, and received by the Senate and House on July 18, 1979, to commence Its 30 legislati'~e day lay- over time pursuant to D. C. Code §1-147(c), (Non-cum. Supp. VI, 1979). JUDITHW. ROGERS Corporation Counsel, D. C. JOHN H. SUDA Acting Deputy Corporation Counsel, D. C. JAMES J. STANFORD Assistant Corporation Counsel, D. C. Attorneys for Defendant District Building Washington, D.C. 20004 -3- PAGENO="0021" 17 SUPERIOR COURT OF TUF DISTRICT OF COLUMBIA Civil Division THE WASHINGTON HOME OWNERSHIP COUNCIL, INC. Plaintiff, V. : Civil Action No. 10624-79 DISTRICT OF COLUMBIA Defendant. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFFNDANT'S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT Plaintitiff brought this action for ~i declaratory judgment, injun- tive, and other relief to declare unlawful numerous emergency housing acts passed by the Council of the District of Columbia. This action is before the Court on the parties' cross-motions for summary judgment. The issue before the Court is whether the enactment of of succes- sive emergency acts cited in Counts I, II, and III of plaintiff's Complaint was a valid exercise of the legislative power of the District Government under the District of Columbia Self-Government and Governmental Re- organization Act Pub L 93-198 87 Stat 774 (hereinafter the "Home Rule Act"). As will be established, the District's enactment of these measures was proper. - I The Home Rule Act vests the District Gov- ernment with Broad Legislative Authority In enacting the Home Rule Act, Congress granted the citizens of the District broad authority over their own destiny. The Act expressly provides that "the legislative power of the District shall extend to all rightful subjects of legislation within the District." § 302, D. C. Code, § 1-124 (Supp. V, 1978). The only express limitations on this authority are those enumerated in § 602(a) of the Act, D.C. Code, § 1-147(a) (Supp V., ~I978). As the D.C. Court of Appeals noted in McIntosh v. PAGENO="0022" 18 Washington, D.C.App.. 395 A.2d 744, 753 (1978), in narrowly con- str3iing one of these specific limitations, "the core and primary pur- pose of the Home Rule Act . . . was to relieve Congress of the burden of legislating upon essentially local matters `to the greatest extent possible. consistent with the constitutional mandate, " citing § 102(a) 11 of the Act, D. C. Code, S l-121(a)(Supp. V, 1978)T Therefore, any restrictions on this broad authority should be read narrowly and no limitations not expressly imposed by Congress should be Inferred. The Act provides two methods by which the District could exer- cise its broad legislative powers--permanent and emergency legisla- tion. Although it requires permanent legislative measures to lay before Congress for a 30-day period before taking effect, 5 602(c), D. C. Code, 5 1-146(c)(Non. -cum. Supp. VI, 1979), It gives the District flexibility to respond to changing situations by pe'rmittlng it to enact emergency measures that take effect immediately but which expire after 90 days. § 412(a). D.C. Code, 5 l-146(a)(Non. -cum. Supp. VI, 2/ (1979) Although emergency measures do not undergo congressional 1. Section 102(a) of the Act provides in pertinent part: Subject to the retention by Congress of the ultimate legislative authority over the Nation's Capital granted by article I, section 8, of the Consitution, the intent of Congress is to delegate certain legislative powers to the government of the District of Columbia; . . . grant to the inhabitants of the District of Columbia powers of local self-government and, to the greatest extent possible, consistent with the constitu- tional mandate, relieve Congress of the burden of legislating upon essentially local District matters. - 2~ Section 4l2(a) of the Act, as amended, provides: The Council, to discharge the powers and duties imposed herein, shall pass acts and adopt resolutions, upon a vote of a majority of the members oi the Council present and voting, unless otherwise provided in this Act or by the Council. The Council shall use acts for all leg- islative purposes. Each proposed act (other than an act to which section 47-224 applies) shall be read twice in substantially the same form, with at least thirteen days Intervening between each x~eading. Upon final adoption by the Council each act shall be made immediately available to the public in a manner which the Council determines. If the Council determines, by a vote of two-thirds of the members, that emergency circumstances make it~ necessarythatanact be passed after a single reading, or that it .take effectimmediatelyuponenactment. such act shall be effective for a period not to exceed ninety days. Resolutions shailbe used to express simple determinations, decisions, or directions of the Council of a special or temporary character. -2- PAGENO="0023" 19 review, the Act assures the careful use of this authority by requiring stnict procedural safeguards that are not required of permanent legis- lation. / On its face, § 412(a) vests the Council with broad powers to leg- islate in emergency situations. The only limits which Congress im- posed on this emergency legislative power were (1) that two-thirds of the Council must determine the existence of emergency circumstances and (2) that the effectiveness of each act be limited to ninety days. Congress placed no other limitations on the Council's exercise of its emergency legislative powers. It is significant that before the Council may even consider whether to enact an emergency measure two-thirds of its total membership must adopt a resolution declaring the existence of emergency circum- stances. § 412(a). The extraordinary majority required as a condition precedent to the Council's exercise of its emergency legislative author- ity is even more stringent than the extraordinar.y majority required* to override the Mayor's veto, since the latter action only requires two-thirds of the members of the Council present and voting, whereas the former requires two-thirds of the entire membership of the Council. Compare § 404(e), D.C. Code, § 1-144(e)(Non. curn-Supp. VI, 1979), with § 412(a). It is extremely important that the Act° places no substantive res- trictions on Council's discretion to determine the existence of emer- gency circumstances. It conspicuously omits any narrowing definition of the term "emergency." This is in striking contrast to the limitations placed on the emergency legislative authority of the pre-home rule, appointive, District of Columbia Council, established under Reorgani- zation Plan No. 3 of 1967. The former Council, unlike the present Council, was considered a regulatory, rule-making authority, and was subject to the restrictions imposed by the D. C. Administrative Procedure Act on exective agencies. Section 6(c) of that Act provides in pertinent part as follows: PAGENO="0024" 20 [If] in an emergency, as determined by the Com- missioner or Council or an independent agency the adop- tion of a rule is necessary for the immediate preservation `. of the public peace, health, safety, welfare, or moraT~ the Commissioner or Council or such independent agency may adopt such rules as may be necessary in the circum- stances, and such rule may become effective immediately. [Emphasis added.] D.C. Code, § 1-1505 (c)(1973). This restriction was thus embodied In the rules of the former Council. See 2 D.C.R.R. § 2.6(b). The present Council, in contrast, is not an administrative body, but It possesses far broader power, being vested with "the legislative power of the District." § 404(a), D. C. Code, § l-144(a)(Supp. V, 1978), analogous to the power of a State ].egislature. In addition, the Council received all of the powers possessed by the former Council. Id. Thus, the authority of the home rule Council to determine the existence of an emergency is completely vested in that body's discretion. II The Council's Declaration of an Emergency is Conclusive Each emergency act challanged by plaintiffs was preceded by a resolution, adopted by two-thirds of the total membership of the Coun- cil, setting forth the basis of the emergency. Under the Home Rule Act, the existence of emergency circumstances confronting the District Is a determination based on the unique legislative fact-finding abilities of the Council. In view of the broad legislative authority of the Council under the Home Rule Act and the absence of any express limitations on its utilization of this device other than the safeguard of atwo-thirds vote, we submit that this Court should not undertake an examination of the findings of the Council set forth In Its emergency resolution. The Home Rule Act has expressly committed this function to the legis- lative branch of the District Government, and under the principle of separation of powers, the courts should not be put in position of second guessing the Council's determination. - The courts of other jurisdictions are divided on the question of whether the declaration of an emergency by a legislative body, State PAGENO="0025" 21 or municipal Is conclusive or is subject to judicial scrutiny See generally, 5 F. McQuillan, Municipal Corporations, §5 15.40, 16.30; A~ino., Conclusiveness of Declaration of Fmergency in Ordinance, 35 A L B 2d 586 Anno Statutes Conclusiveness of Legislative Dec.. lai'ation of Fmergency, 110 A.L.R. 1435; 7P~.L.R. 519. Compare New Orleans Firefighter's Ass'n v. City of New Orleans, 204 S. 2d 690, 695 (La. 1967); Hatfield v. Meers, 402 S.W. 2d 35, 39 (Mo. 1966); State v. Holman, 355 S. 21d 946, 950 (Mo. 1962); Scaturochio v. Jersey Citylncinerator Autho~y, 14 N.J. 72, 100A.2d869~i953); Mayor of Baltimore v. Hofrichter, 178 Md. 91, 11 A. 2d 375 (1940), with v. Maryland NCPPC, 369 Md. 352, 306 A. 2d 220 (1973); Jamori eauv. Harner, 16 N.J. 500, 109 A2d 640 (1954); Morris v. Goss, 147 Me. 89, 93 A. 2d 556 (1951). However, even those courts which assert the authority to examine the bases for the declaration of emergency have generally concluded that the legislative determination lstobeaccordedgreatdeferenCe. See Blocky. Hirsh, 256t1.S. 135, 154-55 (1921)(congressional declaration justifying rent control in the District of Columbia); Greenberg v. Lee, 196 Ore. 157, 248 F. 2d 324 (1952); Mayor of Baltimorev. Hofrichter, supra. Any doubts as to the existence of an emergency are resolved in favor of the legislature's findings. See Davis v. Los Angeles County, 12 Cal. 2d. 412, 84 P. 2d 1034, 1040 (1938); Maudzius v. Lahr, 253 Mich 216, 234 N.W. 581, 585 (1931); State v. Martin, 29 Wash. 2d 799, 189 P. 2d 637, 639 (1948). in other words, courts which have subjected legislative determinations of emergency to factual scrutiny have placed a very heavy burden upon one seeking to challenge this finding. We submit that, in the governmental structure established by the Home Rule Act, the determination by the Council of the existence of emergency circumstances is not subject to any requirements other that those expressly provided by that Act No more can be required of the Council than it make a prior finding setting forth the basis of its determination approved by two-thirds of its membership If Con- -5- PAGENO="0026" 22 gress had contemplated further restrictions, it would have plainly said so'. It apparently believed that the stringent precondition of the adop~ tion of an emergency resolution by an extraordinary ma)orlty of the Council and the 90 day limitation on an individi~al Act were sufficient safeguards on the District's utilization this device, rendering congres- sional review unnecessary. The Council's findings should not be subject to further inquiry. Plaintiff has utterly failed to demonstrate that the resolutions~ underlying the challenged emergency acts have failed to set forth facially valid findings of , emergency circumstances. Even were this court to hold that the Council's declaration of an emergency was not conclusively binding, plaintiff has failed to meet the heavy burden of showing that no emergency existed or could reasonably be thought by the Council to exist. III * The Home Rule Act does Not Prohibit Suc- - cesive Emergency'Acts by the Council Nothing in' the Home Rule Act prohibits the District from'enactlng succe~sive emergency acts. If upon the expiration of an existing emér- gency act, the Council determines that emergency circumstances still exist and adopts a new extraordinary resolution to that effect, it Is perfectly proper to enact an emergency act similar to the one that has expired. Under plaintiff's theory, the District would be powerless to address emergency circumstances that existed for a period in excess of 90 days. Fven the pre-home rule Council was not so limited. The Council's declarationsof emergency circumstances have always been taken at public sessions, and the enactment of the first emergency act puts the public on notice of the possibility that further emergency actions might be required should the situation that gave rise to the first enactment continue to persist. In the face of this legislative scheme, which only imposes two restrictions on the ~ emergency~ legis- lative powers (two-thirds vote and 90 day limitation), any possibility of -6- ` PAGENO="0027" 23 another implied prohibition on successive emergency acts must be e~qiluded under the doctrine of expressio unius est exclusio alterius Congress simply did not include a prohibition on successive emergency acts in its set of limitations on the emergency legislative power of the Council The plain language of the Home Rule Act allows the use of succes- sive emergency acts each not exceeding 90 days Plaintiff's contention 3/ that "Section 1 -146 (a)" of the Home Rule Act establishes a "maximum time period clearly specified by Congress for the duration of the emergency legislation" (P1 Mem at 14 &3) finds no support in the language or legislative history of the Act. Section 4l2(a) of the Act simply places a maximum time period on the duration of one given emergency act Plaintiffs' reliance of SEC v. Sloan, 436 tJ.S. 103 (1978) is misplaced and misleading. In Sloan, the Court held that the Securities and Fxchange Commission, a highly regulated agency, lacked the auth- ority under S 12(k) of the Securities and Exchange Act of 1934 to Issue a series of summary orders suspending the trading. of a particular stock beyond the initial 10-day suspension period. The statutory prov- ision in that case authorized the Commission to "summarily suspend trading in any security . . . for a period not exceeding ten days" if "In its opinion the public interest and the protection of investors so require." Id. at 112. As the Court noted (Id.) The first and most salient point leading up to this con- clusion is the language of the statute. Section 12(k) author- izes the Commission `summarily to suspend trading in any security . . . for a period not exceeding ten days. 15 U.S.C. § 781(d)(1976) (emphasis added). The Commis sion would have us read the underscorded phrase as a urn iñ~on1~y~ipon the duration of a single suspension order. S~iead, the Commission could indefinitely suspend trading in a security without any hearing or other procedural safe- guards as long as it redetermined every 10 days that sus- pension was required by the public interest and for the pro- tection of investors. While perhaps not an impossible reading ofthe statute, we are persuaded it is not the most * natural or logical one. [Emphasis added. 3. Throughout its brief, plaintiff has mistakenly referred to the codifications of various provisions of the Home Rule Act in the D. C. Code as the sections of the Act itself. The proper reference is 5 412(a). -7- PAGENO="0028" * 24 However, unlike the statute in Sloan, § 412(a) of the Home Rule Act clearly limits only the duration of each act, as opposed to the duration of the remedy It states that "such act shall be effective for a period of not to exceed ninety days." It does not state that the declared emergency or the legislative remedy shall be limited to ninety days. The Home Rule Act imposes a limit only on~ the duration of the emergency act-~ preciselythe limitation that was lacking in Sloan and precisely what the Commission unsuccessfully attempted to have the Court read into the statute. The Sloan case, so heavily relied upon by the plaintiff, is further distinguishable from the case at bar. A central concern of the Court in Sloan was the summary nature of the action which was taken without affording the company a hearing and the severe financial impact of such an order. Moreover, reading § 12(k) in pan rnaterla with other provisions of the Security Exchange Act permitting the Commission's to extend other temporary suspensions beyond the initial 10 day sum. mary suspension, the Court concluded that it was "difficult to read the silence In § 12(k) as an authorization for an extension of summary restrictions without a hearing as the Commission contends." Id. at 114. In addition, the restriction on the Commission inSloanthat plaintiff relies on is clearly inapplicable to a legislative body, as the Council, with broad undefined authority. Unlike the Commission, the ~ouncl1 is not confined to specific regulatory functions but has broad legislative responsibility for the health, safety, and welfare of the citizens of an entire political entity. Nor does the Home Rule Act contain other provisions modifying the DistrIct's emergency legislative authority by implication in a manner analogous to the parallel provisions of the Security Exchange Act upon which the Court in Sloan relied. In the absence of any express restribtion in the Home Rule Act of the Council's nepitition of emergency legislative action in the face of emergency circumstances enduring more than 90 days this Court PAGENO="0029" 25 should not infer one. Such a narrowing construction of the District's b'r?.ad legislative powers is antithetical to the concept of home rule and would hamstring the ability of the District Government to respond to critical situations. Iv The Legislative History of the Home Rule Act Shows that Congress Intended to Authorize the Enactment of Successive Fmergency Acts Contrary to plaintiff's contention, the legislative history does not support the theory that Congress intended to preclude the District from enacting successive emergency acts. The language providing this authority was added as an amendment to the initial House home rule bill in the 93d Congress, H. R. 9056, during the markup of that bill by the House District of Columbia Committee. Se~e Staff of the House District of Columbia Committee, Home Rule for the District of Colum- bia 1973 - 1974, 93d Cong., 2d Sess. 1042-43 (Comm. Print. 1974) (hereinafter, `Home Rule History"). However, when this provision was added, the 30-day layover requirement for all permanent acts had not been included in the bill. That provision was added much later, just prior to conference action on the House and Senate bills, as a compromise to the opponents of the measure. See Home Rule History at 2084. At that point, the committee members justifiably thought that the Council could transform an emergency act into a permanent one simply by having a second reading on the measure. They did not contemplate the possibility that the 90 day limitation on an erner- gency act might expire before permanent legislation could take effect. However the legislative history of this provision does show that Congress considered the requirement that two-thirds of the membership of the Council adopt a resolution declaring an emergency prior to the Council's consideration of each emergency act was a sufficient safegard to prevent any abuse of this authority. The discussions in the markup session clearly show that Congressman Rees assumed that the COuncil would have the power to enact successive emergency acts. -9- PAGENO="0030" 26 The thrust of his concern~asto impose an idequ~te safeguardonthe use of `this power. Mr. flees' use of the phrase `chain hanky-panky" clearly establishes this intent. In response to a question concerning the type of vote needed to enact emergency legislation Mr flees responded I think in the emergency situation, it would be best to have a two-third majority vote. I think there could - be some chain hanky-panky. Home Rule History at 1043. It Is clear that Mr. Roes felt that this threat of "chain hanky-panky" (legislative abuses in enacting successive emergency acts) would be alleviated by requiring a two-thirds vote rather than a simple majority Subsequent legislative action by Congress amending the 30-day congressional review period in § 602(c) of the Act shows that Congress did not consider successive emergency enactments to be violative of this provision but, indeed, acknowledged that the frequently excessive duration of this period naturally resulted in the use of successive emergency acts. Pub. L. 95-526, § 1(2)(B), 92 Stat. 2023 (1978). shortened the 30-day review period and made it more predictable by amending the exclusion from this period of "any days during which either House is not in session" to read."any day in which neither House Is in session because of an adjornment sine die, a recess of more than 3 days, or an adjournment of more than 3 days." ~ee D.C. Code, § 1-147(c)(Non. -cum. Supp. VI, 1979). The reports on this Act recog- plzed that the prior method of computation forced the Council to utilize successive emergency enactments: Perhaps the most difficult and burdensome aspect of section 602(c), the congressional review process, is the uncertainty of when an act passed by the Council will be- come law. At present, only those days when both Houses of Congress are in session are counted in the 30-day lay- over period. Because the House is often in recess on Mondays and Fridays, the effective review period averages * 60 days followingtransmittal ofa Council act to the Speaker of the house and to the President or the Senate. At its worst, as in the case of the Condominium Act of 1976 * (D,C.Act 1-151), seven months elapsed before the act be- came law. This unpredicta~Tflty has. forced the District to enact an inordinate amount of temporary (90-day) "em- ergency" legislation that requires no congressional review and takes effect immediately. [Emphasis added.] - 10 - PAGENO="0031" 27 H.R. Rep. No. 95-1104, 95th Cong., 2d Sess. 2 (1978); S. Rep. No. ~5-1291, 95th Cong., 2d Sess.~2 (1978). Thus, the legislative history of the Home Rule Act and the sub- sequent congressional amendment of ~ 602(c) refutes plaintiff's con- tention that Congress intended to preclude the District from enacting successive emergency acts. As these reports make abundantly clear, Congress was aware of the use of successive emergency acts by. the Council and, yet, with this knowledge and awareness, Congress did not prohibit the practice of enacting successive emergency acts. Rather, it merely reduced the length of the layover time as one way to cut down on the number of successive emergency acts that the Council would be forced to enact to avoid lapses in Its laws and consequent confusion and chaos. The legislative history shows that as long as Congress maintains its review requirement for all permanent acts, the Council must have the abilityto use its emergency legislative powers to respond to those emergency circumstances that it finds to exist and to maintain the continuity of this legislative response until permanent legislation is possible or appropriate. V The Council's Consistent Interpretation of Its Power to Enact Successive Emergency Acts Under the Home Rule Act is Entitled to Great Deference It is a general rule of statutory construction that the, practices md interpretations of administrative agencies may be considered in construingthe powers granted to such bodies. 2A Sutherland, Statutory Construction § 49 05 A consistent and longstanding interpretation by the agency of its own enabling legislation, while not controlling, is entitled to considerable weight. United States v. National Assn. of Security Dealers, 422 U.S. 694, 719 `(1975); Saxbe v. Bustos, 419 U.S. 65 (1974); Investment Co. Institute v. Camp. 401 U.S. 617, 626-' 627 (1971); Udall v. Fallinan, 380 U.S~ 1, 16 (1965). The test Is whether the statutory construction Is "sufficiently reasonable that It - 11 - PAGENO="0032" 28 should have been accepted by the reviewing courts." Train v. Natural Re~sources Defense Council, 421 U.S~ 60, 75 (1975). C~rtathly if a mere regulatory or administrative agency's interpretation of its own enabling legislation is entitled to great weight, the Council's inter- pretation of its powers under the Home Rule Act is entitled to similar deference, especially in view of the broad grant of authority to the Council. The numerous successive emergency acts in the housing field graphically demonstrate the Council's consistent interpretation of the 4/ emergency powers granted to it by the Home Rule Act~ The Council has consistently interpreted the Act to authorize the enactment of sue.. cessive emergency acts. Moreover, *this consistent construction is "sufficiently reasonable" that it shdulu be accepted by the reviewing 5/ courts as it has been accepted and ratified by the Congress. To call these legislative responses unreasonable would unduly restrict the legislative power of the home rule District Government. There are several reasons which support the Council's interpretation of the Home Rule Act with respect to successive emergency acts: (1) it is consistent with the statuory mandate [see Parts I and III]; (2) it is consistent with the legislative history of the Home Rule Act [see Part IV] (3) it is logical [infra] and (4) it is consistent with the spirit of prior judicial pronouncements [infra]. 4. Examples of other areas in which the Council has passed sue.. cessive emergency acts include: Usury laws: See First Emergency Interest Rate Extension Act of 1978, Act 2-224, 25 DCR 1428; Second Emergency Interest Rate Extension Act of 1978, Act 2-274, 25 DCR 3424; Third Emergency Interest Rate Extension Act of 1978, Act 2-317, 25 DCR 6213; First Emergency Interest Rate Increase Act of 1978, Act 2-22525 DCR 1429; Second Fmergency Interest Rate Increase Act of 1978, Act 2-2 75, 25 DCR 3415; Third Emergency Interest Rate In- crease Act of 1978, Act 2-316, 25 DCR 6123; and Environmental law: See Emergency Air Quality Control Regulations Aiiièndments Act of 1978, Act 2-244, 25 DCR 1497; Second Emergency Air Quality Control Control Regulations Amendment Act of 1978, Act 2-296, 25 DCR 5012; Air Quality Control Regulations Amendment Emergency Act of 1979, Act 303, 25 DCIi 8025. 5. This memorandum reflects the views of the Corporation Coun- sel on the emergency legislative power of the Council and supersedes any prior inconsistent opinions of this Office. 12 - PAGENO="0033" 29 It would be illogical and unduly restrictive to interpret the Home I~1e Act in such a way as to prohibit the enactment of successive emer- gency acts. This is so because in some emergency situations, the only effective legislative remedy available to the District Government is the use of successive emergency acts. For example, it would be un- reasonable if the Council could not (1) enact successive emergency icts to bridge the time gap created by the, congressional layover period after the passage of a permanent act designed to remedy an emergency situation, or (2) address an emergency situation lasting longer than ninety days but which, due to its changing character, could not ade- quitely be remedied in a permanent act, or (3) remedy temporarily an emergency situation so complex that ninety days would afford insuffi- cent time in which to study and formiili~te a comprehensive, permanent solution. In these or similar situations It would be an illogical unreason- able, unduly restrk~t ive, and unresponsible interpretation of the Home Rule Act were the Council to conclude that it did not have the authority to enact successive emergency acts. It is axiomatic that a statute must not be construed to produce an absurd result, and this is especially so when, as here, a plain reading of § 4l2(a) and its legislative history is consistent with the Council's construction. See Lange v. United States, 143 U.S.App.D.C. 305, 307-308, 443 F.2d 720, 722-723 (1971). Moreover, the Council's interpretation of the Home Rule Act to permit successive emergency acts is reasonable in light of prior court decisions giving considerable latitude to the pre-home rule Council in the exercise of its police power. See Firemen's Insurance Co.' of Washington, D.C. v. Washington, 157 U.S.App.D.C. 320, 483 F.2d 1323 (1973); Maryland and D.C. Rifle & Pistol Ass'n. v. Washington, 142 U.S.App.D.C. 375, 442 F.2d 123 (1971). These pre-home rule decisions interpreting the Council's police powers ae still valid in light of § 404(a) of the Home Rule Act,' D.C. Code, § l-144(a)(Supp. V, 1978), *hich transferred all functions of that Council, granted by Reorganiza- - 13 - 60-2,38 0 -`80 - 3 PAGENO="0034" * 30 tlon Plan No. 3 of 1967, to the new Council. Section 402(1) of the J~eorganization Plan specifically vested the former Council with the power to make regulations under D. C. Code, ~ 1-226. which provided in pertine~it part: The District of Columbia Council is hé~reby authorized and empowered to make . . . all such reasonable and usual police regulations . . . as the Council may deem necessary for the protection of lives, limbs, health, comfort, and quiet of all persons and the protection of all property within the District of Columbia. These regulatory powers were broad and certainly included the power to regulate in the face of emergencies. Moreover, the pre-bome rule Council had authority tá enact successive regulations in the face of successive emergencies. It would be illogical to assume that this power to make police regulations was somehow limited when transferred to the new Council. In Firemefl's Insurance Co. of Washington, D. C., ~ the Court pointed out the compelling policy considerations which underpin the need for considerable latitude in the enactment of local regulatory measures, emphasizing that the police power of the Council "Is not restricted or limited to present applications, but is a flexible and dynamic concept which changes and expands as a society becomes more complex." 157 U. S. App. D.C. at 325, 483 F. 2d at 1328. Relying on Maryland and D. C. Rifle & Pistol Ass'n, supra, the court went on to observe: In Pistol Ass'n, we were concerned with a po- tential conflict between Congress' comprehensive gun con- trol program and the municipality's gun control regulations. The court observed that there was at least reasonable doubt as to whether Congress hass meant to preempt the field by its general legislation. Given the potentially greater res ponsiveness of local government to local problems and the recognition that Congress cannot realistically be expected to deal with every aspect of a local problem, the court determined that the municipality should be given the benefit ofthat reasonable doubt andThp~held th~ local regulation. ~Fmphasis added. I 157 U.S.App.D.C. at 326, 483 F.2d at 1329. *. When the enactment of successive emergency acts is viewed as it must be, as an exercise of the Council of its delegated legislative and - 14 - PAGENO="0035" 31 police powers the Council should be given every benefit of the doubt as t9 the legality of tins practice This is especially so when the Council is dealing in an area of legitimate local concern Since the citizens of the Distrtct of Columbia can only seek relief from the home rule Coun-. cli that body as contemplated by the Home Rule Act was to have authority over aU rightful subjects of legislation. §~ 302, 404(a), D.C. Code, ~ 1-124, l-l44(a) (Supp. V1 1978). The citizens of the District cannot seek legislative relief `from lower county councils' or municipal legislative bodies since the powers such bodies possess In other jurisdiction as well as powers possessed by State governments are all combined by the Home Rule Act in the Council. The conclusion that the Court should upheld the Council's use of successive emergency acts is especially compelling in vie~: of the fact that the enabling legislation and its accompanying legislative history are consistent with this practice. VI Plaintiff's Case is Moot as to All Emergency `Acts which have Lapsed or Expired In its complaint, plaintiff seeks declaratory and injunctive relief with respect to numerous emergency acts of the Council which have already lapsed by their own terms. We submit that this court should dismiss as moot plainitiff's challenges to these lapsed acts. It is well settled that courts will not decide questions the determination of which can lead to no practical relief. Securities and Exchange Corn mission.v. Medical Committee for Human Rights, 404 U.S. 403 (1973); Benton v.. Maryland, 395 U.S. 784 (1969). In Smith v. Worksrnan, D. C.Mun.App., .99 A. 2d 712, 713 (1953), the Court dismissed a com- plaint on the ground that no justiciable issue existed when the act In question had already expired. Accord, Nowinski v. Randall H. Hagner & Co., D.C.Mun.App., 100 A.2d 452, 453 (1953), The logic of this doctrine is especially compelling with regard to~ the emergency acts challenged in Counts II and I I I of plaintiff's corn- - 15 - PAGENO="0036" 32 plaint. These emergency acts have been succeeded by similar perm- a~n~nt acts of the Council that are nearing completion of the congress- ional review period. See Multi-family Rental Housing Act of 1979, Act 3-62, 26 DCR 358 (transmitted to Congress on July 18, 1979); Cooperative Regulation Act of 1979, Act 3-63, 26 DCR 361 (transmitted to Congress on July 18, 1979); and Offer to Purchase Act of 1979, Act 3-75, 26 DCR 664 (transmitted to Congress on August 7, 1979). It is expected that the first two acts will take effect on October 2, 1979 and that the last will take effect later in that month. Nor does the case at bar fall within the exception to the mootness doctrine first enunciated in Southern Pacific Terminal v. ICC, 219 U.S. 498 (1911), and further clarified in Weinstein v. Bradford, 423 U.S. 147 (1975), that a case is not moot When "(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again." Id. at 147. Neither prong of this test is satisfied in the instant case. As to the first, a single emergency act would alone provide a 90 day per- iod during which time the challenged action could have been litigated. As to the second, it is important to note that since permanent legisla- tion has been passed by the Council which encompasses the emergency acts in Counts II and III of the Complaint, there is no reasonable ex- pectation that the complaining party would be subjected to the same action again. Further,, the subject matter in the emergency acts has been addressed in the permanent acts, thereby removing the necessity for further successive emergency acts in this area. CONCLUSION Therefore, we urge that plaintiff's motion for summary judgment be denied and that defendant's motion for summary judgment be granted. - 16 - PAGENO="0037" 33 Respectfully submitted, JUDITH W. ROGEBS Corporation Counsel, D. C. * JOHN H. SUDA Acting Deputy Corporation Counsel, D. C. * JAMES J. STANFORD Assistant Corporation Counsel, D. C. Attorneys for the Defendant District Building Washington, D.C. 20004 727-6248 - 17 - PAGENO="0038" 34 SUPERIOR COURT OF THE DISI RICT 01 COLUMBIA Civil Division TIlE WASHINGTON HOME OWNERSHIP COUNCIL, INC. Plaintiff, v. Civil Action No. 10624-79 DISTRICT OF COLUMBIA * Defendant. - ORDER Upon consideration of the complaint filed herein; the motion of defendant, District of Columbia, for summary judgment and in opposition to plaintiff's motion for summary judgment; the memo- randum of points and authorities filed in support thereof; plain- tiff's motion for summary judgment; and the memorandum of points and authorities filed in support thereof, it is, by the Court, this ______day of _____________, 1979, `ORDERED: That the motion of defendant, District of Columbia, for summary judgment be, and the same is, hereby granted; and, it is, ` FURTHER ORDERED: That the motion of plaintiff for summary judgment be, and the same is, hereby denied; and, Itis, FURTHER ORDERFD: That judgment be, and the same Is, hereby entered in favor of defendant, District of Columbia. JUDGE PAGENO="0039" 35 IN ThE DISTCft.T Cr COURT Or FAL.C DISTRICT OF COLUNBIA, cc ci. Appellants, No. 79-1053 THE WASHINGTON HOME OWNERSHIP COUNCIL, INC., Appellee. OPPOSITION OF DISTOICT Cr COLUMPI!~ SUMMARY AFF1MMANCE The District of Columbia opposes the motion ~f appellee for summary affirmance of the order of the court belo~s entered on October 19, 1979, in the above-entitled cause. Th~e groimd for its opposition is: In its motion for summary reversal, filed comtamporrn-ieously herewith, The District has demonstrated that the order of the court below is at variance with settled and controlling aegal principles. This circumstance requires not only that the courts order be sum- marily reversed, but that appellee's motion for st~nary affirmance be denied as well. - /- !7 C .~ JUDITH H. ROGERS, Corporation Couns~1, D. C. ~ -*;~~2~ -- ~fCHARD w. BARTON Deputy Corporation Cocinsel, D. C. -. Appellate Division ~: c ~ ~ Assistant Corporation Counsel, D. C. - -. ~ `~ JAMES J. STANFORD. - - - Assistant Corporation Counsel, D. C. Attorneys for .~~sppel1aiit District of Columbia, District Building, Washington, D. C. 20004 Telephone: 727-6252 PAGENO="0040" 36 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Opposition of Distr.ict of Columbia to Motion of Appellee for Surnary Affirmance was personally served, this 2nd day of November 1979, on each of the following: Stephen N. Sacks, Esquire Thomas E. Silfen, Esquire Linda C. Moore, Esquire Arnold & Porter 1229 Nineteenth Street, Northwest Washington, D. C. 20036 Attorneys for Appellee JerryD. Anker, Esquire Leslie D. Michelson, Esquire Wald, Harkrader & Ross 1300 Nineteenth Street, Eirthwest Washington, 0. C. 20036 and Kerry Alan Scanlon, Esquire Washington Lawyars' Counittee for CivilRights Under Law 733 Fifteenth Street, Northwest Washington, D. C. 20005 Attorneys for Appellants Metropolitan Washington Plahning and Housing Association, Inc., et al. Jason I. Newman, Esquire Harrison Institute for Public Law 605 G Street, Northwest Suite 401 Washington, D. C. 20001 Of Counsel. :`~ DAVID P. SUTTON, Assistant Corporation Counsel, D. C. 2 PAGENO="0041" .37 IT C~ C~ .~ D'thiCT ~ uc1~u~;i;TO, Ap;el~ IOta, No. 79-1053 r~t v ::v~:r:.: vc~. C C. CNJP CCU~ClL, i::c. ICOTICh Cr r.ICTRICT CF COLUvDIA Fot the reasons set forth below, the District of Columbia moves th~ Court to surnnoriiy ro~rse the ordtr of the court below entered in the ahov~.-entit]ed eruse. Issue. Presonted for Review Whether the D. C. Council correctly construed ~ 412(a) of the Home Rule Act as empowering it to reenact a 90-day emergency measure upon a determination by two-thirds of its members that em emergency exists. Statement of the Case In a three count complaint for declaratory arid injunctive re- lief filed in the court below en August 20, 1979. appellee, the Washington Home Ownership Council, Inc., challenged the legislative power of the District of Coluebie. Council to enact successive emer- gency measures pursuant to 412(a) of the District of Columbia Self- Government and Governmental Reorganization Act, P. L. 93-198, 87 Stat. 774 et seq. (hereinafter "the Home Rule Act"). The District of Columbia was ncned as cefsndsnt and, pursuont ~o Superior Court Rule 24, the Metropolitan Washington Planning and housing Associa- ticn, mc., and venous tenant associations, intervened as additional defendants. The case came on before the court on tross-motions for PAGENO="0042" a8 s~nary judgment filed by the parties. Dy order entered October 19, 1979, the court granted appellee's motion for suimnary judgment and deni&d the motions of the District and the intervenors. The court filed an opinion in support of its order. In addition, the court enjoined the onforcement of the Emergency Condominium and Coopera- tive Conversion Stabilization Act of 1979, challenged in count 1 of the complaint, and declared invalid the emergency measures challenged. in counts 2 and 3 of the complaint.1 The emergency enactment challenged in count 1 of the complaint, and which gave rise to the injunctive relief granted below, was en- acted in order to continue in force a moratorium on condominium and cooperative conversions pending enactment of more comprehensive legislation. The moratorium legislation was initially enacted at the Council's meeting of Nay 22, 1979. It was preceded by the adoption of a reso- lution (Emergency Condominium Cooperative Control Resolution of 1979, Resolution 3-126, 25 DCR 10370) which declared that "an emergency exists with r~gard to the conversion of rental housing accommodations to condominiums and cooperative houcing accommodations." Section 2(a) .of the resolution motes that: f The number of apartments declared eligible for conversion to condominium or cooperative apartments by the Dis- trict of Columbia has risen dramatically in the last year, threatening to squeeze out of the city low and middle-income - people who cannot afford to buy apart- ments they now rent. - The resolution contains detailed factual findings demonstrating the severity of the problem: In 1978, 10,481 rental apartments were 1 In its opinion (at 9) the court observed tbat none of the emergency measures challenged in counts 2 and 3 are currently in effect, having been supplanted by permanent legislation-(cf. op. at 3-8). The court nonetheless declined to declare these riatters moot. As we demonstrate infra, this holding was erroneous. -2- PAGENO="0043" 39 c~eclarec~ c1i~ible for condominiuc conversion -- nearly fifteen times the 1977 figure -- and 2952 rental units were declared eligible for cooperative conve±sion -- nearly ten times the 1977 figure. Since January 1979, 1,299 rental units have been declared eligible for condoninium conversion, end 6,800 additional units have applicatiori~s outstanding; 982 units have been approved as eligible for cooperative conversion, and 94 additional units have applications for eligibility. pending. In 1978, 2,642 units were registered for conversion to con- dcminiurns, and since January 1979, 1,448 units were so registered. The resolution further notes that the rental units as to which the right to convert has been sought represent over 137~ of the Dis- trict's 1977 non-vacant rental housing stock. This rapidly and con- stantly increasing rate of conversion, poses a threat that the City's rental housing `will cease to meet even minimally Tlecessary demands." Thus, section 2(1) of the resolution concludes tha-t: The preservation of the public peace, health, safety and general welfare neces- sitates an emergency act to impose t~- porary controls on the conversion, of men- tal properties to condominium or coopera- tive status and thus t~ stabilize rental housing in the District of Columbia. On the basis of these findings, the Council,.~ following the pro- cedures for enacting emergency legislation, passed the Emergency Condomii~iun and Cooperative Stabilization Act of 1979, Act 3-44, 25 DCI 10363, which was approved by the Nayor on Ft~y 29, 1979. This Act, subjecttto certain exceptions, prohibited the conversion to con-' dominiums or cooperatives of rental units that otherwise would be eligible for such conversion,2 2 To avoid inequitable hardship to de~eloper~, sectio~t 4(a) of this Act authorizes the Mayor to except from the prohibition on con- version, buildings (1) that were purchases prior to May 22, 1979, in contemplation of conversion; (2) as to which a proper notice of in- tent to convert was served on tenants before Nay 22,1979; (3)-as to which a ~iajority of. tenants consented to conversion; and (4) a~s to which a substantial financial investment in conversion had been made before May 22 1979 -3- PAGENO="0044" 40 In ac'ditior,, section 5 of the Act crcated an Emergency Condo- iTin5.u:r. and Coeporative Conversion Commission (hereinafter "the Coin- mission) charged with the responsibility * * to recommend * * * permanent legislation * to deal with the prob- lens of lou-moderate income tenants in possession who would have difficulties in purchasing units upon conversion. The Commission was directed to report its recommendations for permanent legislation within 60 days and to consider a n~ber of possible legislative solutions, including: (1) a loan fund or mortgage guarantees to assist low- moderate incmme tenants in purchasing their units; (2) a real estate tax abatement progran to provide in- centives fordevelopers to maintain units as rental acco~o- dations; (3) a ceiling on the sales price of a percentage of the converted units to allow low-moderate income tenants to purchase them; (4) specific modifications to existing legislation to remove incentives for conversion; (5) a formula for keeping a certain percentage of pri.- vate rental housing in all sections of the city; and. (6) provision of technical and financial assistance to-tenants desiring to purchase their buildings. It is thus clear from the Act itself that it was designed as a temporary stop-gap to give the Council the necessary time to study and develop permanent legislation. The purpose of the moratorium was self-evident, i.e., to preserve the status ~o pending the en- actment of permanent legislation. - - .1 - The Cooinission established by the Act was unableto complete its task within he assigned 60 days Accordingly on July 31 -4- PAGENO="0045" 41 1070 continuing in its `holding pattern " the Council enacted an- other c-ine~gency r~:c~asure extending the moratorium for sri additional 90 days, end setti~g a new deadline for the Coonission's report. (I7wergency Condominium and Cooperative Conversion Stabilization Act of 1979, Act 3-95, 25 OCR 1014,) This Act was preceded by a similar resolution declaring the existence of an emergency. (Resolution 3- 201, 26 OCR 1019.) Act 3-95 was approved by the Nayor on August 27, 1979. The Commission has held public meetings and conducted a pub- licly-noticed hearing3 at which, inter alit, testimony was preseflted. on behalf of appellee. Thereafter, the Commission submitted its re- port. which further substantiates the Council's findings respecting the existence of a continuing emergency. The report was filed in the court below and describes in detail the seriousness of the prob- lem involved and contains comprehensive recommendations for permanent remedial legislation. The Council is now considering this report. On October 24, 1979, Couricilinembers WilsOri, Clarke and Shackle- ton int~roduced a permanent measure to stabilize the conversion of rental housing to condominium arid cooperative housing in the District of Columbia (Bill 3-208, Exhibit A attached). The bill contains language substantially similar to the emergency measure as to which the court below granted injunctive relief and is designed to remain in effect for 120 days after enactment. 3 ... - The not~.ce appears at 26 OCR 105 (July 13 1979) -5- PAGENO="0046" 42 Argumcnt The court below errc.neouslv coostrue~d the Pore Rule ~ct in concl~in~ tha~ the /ct ~ii~f~oi0s from the i~. cT~~EET ~F~Proverto reenact a PU day er~er gency measure uron a determinatLcn ~y two-th1r~kdt its members thaitan emergency exists. In enjoining enforcement of the Emergency Condomini~ and Cooperative Conversion Stabilization Act of 1979, the court below rested its ruling on the narrow premise that the ;extension, through reenactment by the D. C. Council of an emergency measure over a period in ercess of 90. days, is prohibited by § 412(a) of the Home Rule Act, D. C Code, § 1-146(a) (Supp. V, 1978), which provides in pertinent part that: If the Council determines, by a note of two-thirds of the members, that emer- gency circumstances make idneaessary~ that an act be passed after a single reading, or that it take effect iirmedli- ately upon enactment, such act shall be effective for a period of~~to exceed ninety days. (Emphasis added.) It i~ important to note that the court (op. at 12) took no.. issue with the notion that the `emergency" which gave rise to the challenged measure continues to exists. Nonetheless, the court rea- soned (op. at 14) that: By its terms, the Home Rule Act pro- vides that an emergency act "shall be ef- fective for a period of not to exceed ~ninety days." 1 D. C. Code 146(a).. It is clear to the Court that the statut:orv language is not susceptible of any reason- able interpretation other than that -ahe Council nay not, through its emergency power, continue in eflect substantiAIJy fhi same substantive provisions of Law ore than ninety days without a . . . -: Tdddth reading o~the act. This is u-hat Congress anticipated. * * * (Emphasis added -6- PAGENO="0047" 43 The court adciiti~nal1y (op. at 13-16) concluded that its con- struction of § 412(a) was reinforced by the legislative history of the 1~c*ne Rule Act,:the Supreme Court's recent decision in SEC v. Sloan, 436 U. S. 103 (1978), and opinions of the Corporation Counsel. Ne submit that the court's holding, and appellee's relation positi~n in its sumanary affirrnance motion, cannot survive scrutiny. A fair analysis of statutory terms, legislative history, established rules of construction, and related decisional law will inexorably lead to the conclusion that a construction of 412(a) which permits the re- enactment by the Council of an emergency measure is an eminently rea- sonable construction which should be approved by this Court. Nothing in the quoted statutory language of ~ 412(a) supports the view that the Council has been restricted to a single emergency. enactment in dealing with a continuing emergency like that concededly present here. Reasonably construed, this language places only two limitations on the Council's pover to enact emergency measures: (1) two-thirds of its members must determine the existence of an emer- gency necessitating the particular act which addresses it, and (2) the effectiveness of "such act" is limited to ninety days. The inclusion in § 412(a) of these limitations shows that Congress in-' tended no other limitations. Richfield 0il_~p~. `v. State Board. 329 U. S. 69, 76 (1946), Such a proposition surely takes on added significance in construing the None Rule Act. For, as this Court made clear iii McIntosh v. Nashin~g~qR, 395 A. 2d 744, 753 (1978), limitations on the Council's legislative powers are to be narrowly construed in keeping with the Act's primary purpose of relieving "Congress of the burden of legislating upon essentially local matters `to the greatest extent possible consistent with the constitutional mandate'." Nonetheless, the court below and appellee would read into § 412(a) a third limitation on acts of the Council addressing emergencies like that involved, i.e., a limitation vhich restricts~- -7- PAGENO="0048" 44 thc Council to cnly cne such act. Yet, norher~ in 5 412(a) is such a third limitation either spelled out or necessarily impli~d. Given the obvious importance of the matter, its impact on the totality of the Council's legislative powers under the Home Rule Act read as a whole, and the Council's ability to affectively exer- cise those powers in the manner intended by Congress (see discussion infra), such an alleged third limitation should not gratuitiously be read into § 412(a). `We are entitled to assume that in [enacting the Hcme Rule Act) Congress legislated with care, and that had Con- gress intended * * * [such a third limitation], it would have said so expressly and not left the matter to mere implication." See Palmore v. United States, 411 U. S. 389, 395 (1973). Appellee, however, contends (summary affirmance memorandum at 18-19) that the Council's utilization of its legislative power to~ enact successive emergency acts of a similar nature circumvents the congressional review requirement applicable to permanent acts of the Council. See § 602(c), D. C. Code, § 1-147(c) (Hc.ncum. Supp. VI, 1979). This contention is without merit. Sectioma 602(c) merely places a procedural restriction on the Council's exercise of its legislative authority by requiring permanent acts Esnacted by that body to lay before Congress for a 30-day review period before taking effect, during which time Congress may disapprove the act by the adoption of a concurrent resolution. Moreover, § 602(c) expressly excludes from its scope "any act which the Cotmcil determines ac- cording to section 412(a) should take effect icuediately because of emergency circumstances." Apparently Congress, in enacting the Home Rule Act, determined that the requirement of a two-thirds voteof the entire membership of the Council, as a condition precedent to con- sideration of each emergency act, and the 90-day limitation on the effectiveness of each such act were procedural safeguards on the. Council's legislative power equivalent to the 30-day congressional -8- PAGENO="0049" 45 ~:cr1ov TO~1Cu rcqu~red of perrnor.snt acts. In any event, as a fur- ther safeguard, Congress, in passing the Home Rule Act, reserved its constitutionally_granted right to "enact legislOtioTi for the District cn any subject * * ~` including legislation to amend or repeal any * act passed by the Council." § 601, D. C. Code, § 1-126 (Supp. V, 1978). Of course, Congress, as an expert legislative body, is surely aware, as the decisions hold, that an "emergency" in the "legisla- tive sense" can fairly be defined as a threat to public safety, com- fort or welfar~ necessitating ironediate action in lieu of the nor- mally applicable legislative procedures. As such, it is to be dis- tinguished from a more corranonplace type of emergency which arises from sudden or unforeseen circumstances. And, while it may be tem- porary in nature, it may also exist over an extended period of time. See United States v. Southern Railwgy~., 364 F. 2d 86, 94 (5th Cir., 1966); United Sv. Southern iailway_~p~. 380 F. 2d 49, 55-56, n, 17 (4th Cir., 1967); p~gher~v. United States, 141 F. Supp. 576, 581 (D. Ore., 1956) (three-judge court). Eme:gencies like thatinvolved here obviously are de«=tined to last for an extended duration and for that reason simply cannot adeq~uately be dealt with in a single legislative act effective for no longer than 90 days. Nonetheless, appellee and the court below would confine the Council to a single emergency measure. They conclude that Congress intended that result and no other. But, it defies reason to attri~ hute to Congress such a lack of foresight and, necessarily, such a strained legislative intent. If the law were otherwise, the Council would be powerless even to deal with a continuing emergency by en- acting an additional 90 day measure to bridge the time gap created by the congressional review period after the passsg~ of a permanent act designed to remedy an ongoing problem which took its roots as an emergency. See D. C. Code, 1-147(c) (Noncum. Supp. VI, 1979). -9- 60-238 0 - 80 - `4 PAGENO="0050" 46 In addition, all permarent legislation calculated to follow amergcncy acts simply does not lend itself to pas~sage in 90 days. Some legislation, because of its complexity, multiple nuances, and far reaching implications, requires thoughtful artd thorough study by both la~cmakers and appointive coirnissions befo-re finalization. Yet, to require a legislative rush to judgment within a 90 day period under these circumstances is to foster the .very s'vil that both Con- gr~ss and the District decry: arbitrary and precipitous local aegis- lative action. In terms of complexity, the subject matter of the measure involved here is a case in point. The extensive report re- cently submitted by the Coomission appointed by the Council to study numerous problems necessarily presented by condormiriium conversion renders this conclusion inescapable. Furthermore, there may be easily inferred fm~om the structure of the Home Rule Act itself a clear congressional awareness that there can be no realistic likelihood of enactment by the Council of permanent legislation within the 90 day emergency period envisioned by the Home Rule Act. Thus, § 404(c) of the Act, D. C. Code, § 1- - 144(c) (Supp. V, 1978), requires that the Council adopt reasonable rules of procedure including provisions for adequ~te notice of in- tended permanent legislative actions: Pursuant to this congressional mandate, the Council has adopted Rules of Organizmtion and Procedure, Res. 3-53, 25 DCR 9343 (1979). Rule 709 requires~ a 15 day period for publication of the proposed enactment (25 DCR 9376). Moreover, if hearings are contemplated, Rule 902 requires ears additional notice of "not less than fifteen (15) days prior to the date of the hearing" (25 DCR 9384). Following hearings and/or citizen input, and deli- beration by the appropriate Conanittee of the Council, a report is prepared and filed with the Council's Secretary. (See Rules 502(a), 506, 25 DCR 9362, 9367-9368.) The Secretary then schedules the pro- posed bill for review at a work session by the Co-craittee of the -10- PAGENO="0051" 47 ~i-o]e (C0~) which consists of the entire Council. Work sessions of this hind are held every other week, i.e., alternating with legis- lative sessions (Rule 404, 25 DCI 9354). Following COW review and approval, the proposed messure is scheduled for consideration at en~- suing legislative sessions at which it nust "be-read twice in sub- stantially the same forn with at least thirteen days intervening between each reading" (~ 412(a), ~ If passed following the second reading, the act is transmitted to the Mayor, who in turn has - "ten calendar days (excluding Saturdays, Sundays and holidays) after it is presented to him" to consider it with a view to approval or disapproval (~ 404(e)). If vetoed by the Mayor,- the Council is given 30 days to override his veto by a vote of two-thirds of the members present and voting. Id. If the Mayor approves the measure, it is then transmitted to Congress where it must lie for a 30-day review period before taking effect. This layover period is far more lengthy than 30 calendar days because it excludes "Saturdays, Sundays, holidays and any day on which neither House is in session because of an adj ournment sine die, a recess for more - than 3 days, or an adj ourn- ment of more than 3 days." § 602(c)-, as amended, D. C. Code, § 1- 147 (c) (Noncum. Supp. VI, 1979). At times, this 30-day period may. span many months; for example, if an-act transmitted to Congress does not complete the 30-day period before an adjournment sine~die, the act must begin the 30.~day period anew after the reconvening of the -next Congress. See 3 op. C. C. D. C. 524 (1978). These circumstances do-not take into consideration such matters as the length of hearings, the time required for careful legislative drafting, and the fact that publication in the D. C. Register of intended actions occu~rs but once weekly. But, even so, it is still unmistakably clear from the time constraints imposed by the Home Rule Act, as reasonably impienented by the Council's rules, that emergency measures, when coupled with - permanent enactments cannot realistically be deemed effective to - -il- - PAGENO="0052" 48 fc~i~myd the pub]ic interest and prescrnre the smctus ciwo unless reenocted. Yet, if the Council lacks the power to enact a succes- sive9O dey measure, there will necessarily be a hiatus during which the continuing emergency completely escapes legislative remedy. Given these circumstances, the mischief thmt could result from the Council's inability to enact a new measure designed to cope with an ongoing emergency is readily apparent. Since the prospect of pernanent legislation has been made known to those regulated by the expired emergency measure, they are now in a position to jeopardize the public interest by engaging in the very conduct at which that mea- sure was aimed and to irretrievably disrupt the smatus ~uo beyond legislative repair. We submit that under any fair construction of the Home Rule Act, Congress simply did not intend to permit such a chaotic state of affairs and that appellee's contrary construction of the Council's emergency legislative powers leads to manifestly absurd consequences in violation of settled princf~ples of statutory construction. See ~~ge v. United States, 143 U. S. App. D. C. 305, 307-308, 443 F. 2d 720, 722-723 (1971). It is iii light of this background that we ttarn to a discussion of SEC v. Sloan, 436 U. S. 103 (1978), which both appellee and the court below consider the controllingprecedent. in S1oen, the Supreme Court construed a provision of the Securities Exchange Act of 1934, which authorized the SEC to "suranarily s~spend trading in any security for a period not exceeding ten days,'~' if "in its opinion the public interest and the protection of investors so require?? (436 U. S. at 105). The Court held that the provision did not au- thorize successive suspensions, but, in arriving ~t that result, the Court considered matters which are not present here and which, by contrast, illustrate that the Council's construction of its emergenCy powers is indeed a rational one, Thus, the language construed in Sloan ~s calculated to limit the duration of the statutory remedy - 12 - PAGENO="0053" 49 As such, ft is distinguishable from the language of ~ 412(a) which, in addrcssing a particular act of the Council, states that "such act ghall he effective for a period not to exdeed.ninety days" (em- phasis added). Th spite of this clear difference in statutory lan- guo~e, the Court in Sloan recognized that its construction prohi- biting successive suspensions was not the only possible construction (436 U. S. at 112). It declined to adopt the SEC's construction because contrasting statutory provisions, authorizing longer tem- porary suspension action by the SEC, instead of being suanary in nature required notice and an opportunity for hearing (436 U. S at 112-114). The Court thus refused to countenance successive ten day surmeary suspensions because the Act as a whole could not be construed to permit such suspensions. As noted above, however, the Home Rule Act, considered as a harmonious whole, dictates an opposite result and is totally bereft of the type of contrasting provisions or "other sections of the statute" relied on by the Sloan Court (cf. 436 U. S. at 112). In addition, unlike the administrative agency~ involved in Sloan, the Council is not confined to specific regulatory functions. Instead, it is more akin to a state legislature with understandably broad responsibility for the health, safety and welfare of the citi- zens of the District of Columbia in a host of legislative areas. See District of Columbia v. Thompson Co., 346 U. S. 100, 108-109 (1953). All things considered, Sloan simply will not support the validity of appellee's construction of the applicable statute and, if anything, illustrates by contrast that the Council's construction is plainly a rational one. NothIng in the legislative history of the Home Rule Act is at odds with a construction of § 412(a) which permits successive emer- gency measures. Indeed, that legislative history shows that Congress recognized that the Council would have authority to enact such mea- sures. As appellee correctly notes, the provision granting the - 13 - PAGENO="0054" 50 Council a anergenc~' cowers was added to the then pending Home Rule bill during a markup session of theHousa District Committee. See Hcme Rule for the ~istrict of Columbia 1973-1974, 93rd Cong., 2nd Sess. Corrittee Print (hereinafter `Home Rule History"), at 1042- 1043. A review of pertinent pronouncements discloses that the con-. cern of Ccngress was not the enactment of successive emergency mea- sures, but the built-in safeguard, that emergency measures ~whether enacted once or as repeated links in a chain culminating in perma- rient legislation) be supported by a two-thirds majority vote of the entire Council, not merely by a simple majority vote of those pre- sent, which is required to enact peamanent legislation. Thus, Con- gressman Rees, the proponent of such a two-thirds majority require- ment, stated (Home Rule History at 1043) that: * * I think that you might amend this to say "if the Council determines by a two-thirds vote that emergency cir- cumstances make it necessary that an act be adopted at a single reading or that it take effect immediately upon enac~ent, such act shall be effective for a period of not to exceed ninety days." Llsuallv by a ninety day period, you asce~E~n whether the act is necessary on a con- tinuing basis and then follow the second and third reading rule and adopt the act which will be a pennanent part of the municipal regulations. - MR. WASHINGTON. Can the majority of the Council determine if an emegency exists? MR. P.EES. I think in the emergency situation, it would be best to have a two- thirds majo~ity vote. I think thereddüId Hk~dme cha~n canny -perky. ke think there is an emergency, ecey could say that, and we declare it an emergency. So I would offer an amendment to the amendment. I suggest to the gentleman from Maryland, the last sentence, if the Council by two- * thirds vote that emergency circumstances make it necessary that an act be adopted Hdbdingle reading cr t~tit take effect immediately upon enactment, and I think * this would put the proper safeguard in there. Then if they want to extend the ~E~sst the ninety days, they could ob- viously follow the second reading rule. (Emphasis added,) - lL~ - PAGENO="0055" 51 It in fairly inferable from these remarks that the Congress- man' s only concern was that emergency enactments be approved by two- - thirds of the Coun~il in order to avoid the `chain hanky-panky" or legislative abuses that might othen~ise exist if a simple majority vote was required for the enactment of successive emergency acts. Put differently, while chain legislation consisting of successive emergency measures would be prohibited, unless unaccompanied by the two-thirds maj crity safeguard designed to eliminate "hanky-panky," `chain' legislation, when accompanied by such a safeguard, would riot be prohibited. Ubile the Congressman did note that ~`usu:a1ly by a ninety day period, you ascertain whether the act is necessary on a continuing basis' or as "permanent" legislation following "the second reading" (id., emphasis added), he at no time voiced an intent to impose an across-the-board prohihitico on successive emergency mea- sures. Had he so intended, it is obvious that he could have expressed that intent in apt language. It is important to bear in mind, in reviewing this legislative history, that the House bill which Congressman Reas was discussing (H. It. 9056) did not require that permanent legislation enacted by the Council would have to be submitted to Congress for a period of- review prior to becoming effective. Under that bill, acts of the Council would take effect immediately upon the Mayor's signature. The provision for congressional review was added later in an amend- ment offered by Congressman Diggs. (See 119 Cong. Rec. 33669 (1973); Home Rule History at 2084-2085.) It is therefore riot surprising that, at the time of the House markup session, Congressman Rees did not expect the Council to have a frequent need to reenact successive emergency legislation. Nevertheless, it seems clear that Congress- man Hess did recognize that, on occasion, the Council might find it necessary to do so. His only concern was that such action be based on a finding by two-thirds of the Council that there were emergency - 15 - PAGENO="0056" 52 civcumatanct~ vnrr;~ntirig it. In any event, the legislative history of the Home Rule Act is at best inconclusive on the matter of suc- cessive emergency Gnactrsents, for it contains no clear indication that such enactments are forbidden. When the instant case is placed within this framework, other principles of statutory construction at once come into focus. Ap- pollee is quick to recognize that the Council, in past years, has repeatedly enocted successive emergency measures pursuant to § 412(a). In so doing, it has obviously construed that enactment as authorizing such successive reenattrnents. And, it is well settled that a consis- tent and continuing interpretation of a statute by those charged with its administration constitutes an invaluable aid irs determining its meaning. Thus, in Udallv. Tailman, 380 U. S. 1, 16 (1965), the Supreme Court said: When faced with a problem of statutory construction, this Court shows great defer- ence to the interpretation given the statute by the officers or agency charged with its administration. `To sustain the Commission's application of this statutory tern, we need * not find that its construction is the onI~ * ~dàsonable one, or even that it is the re- * sult we would have reached had the cues~i~n * ~isen in the first instance in jiidicial proceacings. Accord: Cook v. Griffith, 193 A. 2d 427, 428 (D. C.. App., 1963). In Philadelphia Television Broadcasting Co. ~. F. C. C., 123 U. S. App. D. C. 289, 359 F. 2d 282 (1966), the Court made a like pronouncement (123 U. S. App. P. C. at 299), and went on to point out that the principle is even more applicable where there is an absence of clear and dispositive legislative history, stating (id. at 300): - 16 - PAGENO="0057" 53 Uc think such deference to the agency's lutarpretation of its governing statute is reinforced where as here, the legislative history is silent, or at best unhelpful, with respect to the point in question. * * * As noted above, the anteqq~g~t (see discussion a) legis- lative history of § 412(a) is at best inconclusive "with respect to the point in question,' and, as such, reinforces the deference that must be accorded the Council's construction of its emergency legis- lative powers. We need not end on this note, however, as far more cogent rea- sons underscore the validity of the Council's construction of its power to enact successive emergency measures. The decisions teach that, under some circumstances, Congress' failure to repeal or re- vise an administrative interpretation placed upon an enactment has been held to constitute persuasive evidence that the interpretation is the one intended by Congress. Zenel v. Rusk, 381 U. S. 1, 11 (1965). "Thus, in actual cases, courts have to analyze whether there is any reason to believe that the particular interpretation in ques- tion came to the attention of Congr~ss so that it might reasonably be said that Congress, by failing to take anymtion with respect thereto approved the interpretation." Wilderness Socie~y v. Morton, 156 U. S. App. D. C. 121, 145, 479 P. 2d 842, 896 (en banc, 1973). And, while mere congressional silence in the face of an administra- tive construction may not, in many circumstances, constitute ratifi- cation, it is clear that where Congress has reenacted or significant1~ amended a statute, without disapproving the agency's construction, Congress may appropriately be considered to have approved that con- struction as correct. See, e.g., United States v. Correll, 389 U. S. 299, 305-306 (1967); CostanZOV. ~ 287 13. S. 341, 345 (1932~; ~vv. F.C.C., 143 U. S. App. 0. C. 223, 231-232, 443 F. 2d 638, 646-647 (1970). - 17 - PAGENO="0058" 54 Ver~' rcce~tly, Congress, in 1978, again had occasion to canvass the Council's legislative powers under the Home Rule Act when it amended that Act ip a manner which shortened the legislative review period for Council enactments. See P. L. 95-526, 92 Stat. 2023, D. C. Code, § l-147(c)(l) (Noncum. Supp. VI, 1979). Both the Mayor: and the Chairman of the Council, in urging Congress to adopt this legislation, pointed out that the length and uncertainty of the con- gressional review period had caused the Council on a number of occa- sions to pass successive emergency measures while permanent legisla- * tion was awaiting congressional review. See Home Rule Act Amendments: Hearings and Markups Before the Subcommittee on Fiscal and Government airs of the House Committee on the District of Col~rnbia, 95th Cong., 1st Sess. at 82 and 88. It is highly significant that both the Senate and House reports on this 1978 amendment of the Hone Rule Act posi- tively and approvingly address the power of the Council to enact * sticcessive emergency measures, stating: * * * At present, only those days when both Houses of Congress are in session are counted in the 30-day lay- * over period. Because the House is often * in recess on Mondays and Fridays, the effective review period averages 60 * days following transmittal of a Council act to the Speaker of the House and to * the President of the Senate. At its worst, as in the case of the Condominium Act of 1976 (District of Columbia Act 1- * 151), 7 months elapsed before the acE'5~- * - caine law. This unpredictability has * forced the District to enact an inordi date amount of temporary (90-dew) emer ~ legisiaticri that .recufres no con- ~ress~~ai review and takes effect ird~~ m~diacely. (Emphasis added.) H. Rep. No. 95-1104, 95th Cong., 2nd Sess. 2 (1978); S. Rep. No. 95-1291, 95th Cong., 2nd Sess. 2 (1978). These pronouncements reinforce the obvious. If Congress, with full awareness of the Council's unambiguously stated construction - 18 - PAGENO="0059" 55 of its sr:a:~cncy legislative powers under the Home Rule Act, be- lieved that such a construction was erroneous, it surely would have said,~o and enacted corrective legislation. We submit that the failure of Congress to take such action is persuasive evidence.that the Council's construction is the one intended by Congress. What was said in ~ v. F. C. C., p~, 143 U. S. App. D. C. at 231-232, 443 F. 2d at 646-647, is equally apposite here: Congress, of course, is not required to act each time a statute is interpreted erroneously and legislative silence in the - face of such interpretation is not neces- sarily equivalent to legislative approval. However, a consistent administrative inter pretation of a statute, shown clearl~ to have been brought to the attention or Con gress and not changed by it, is almost con- clüsive evidence that the interpretation has congressional approval. (Footnotes omitted; emphasis added.) In an attempt to avoid the impact of these telling pronounce- ments, appellee (memorandum at 26) once again relies on SECv. Sloan, ~ pointing out that in that case the subsequent legi~lative ac- tion was insufficient to constitute the requisite congressional ap- proval of the administrative construction. But, as the most cursory perusal of Sloan will demonstrate, appellee's reliance on that. deci- sion is again totally misplaced.4 In the first place, the Supreme Court was not satisfied that the Commission's construction of its emergency power had the requisite "widespread congressional awareness" for it was "extremely hesitant to presume general congressional aware- ness of the Ccmmissicn's construction based only upon a few isolated 4 Likewise misplaced is appellee's reliance on opinions of the Corporation Counsel which fail to take into consideration the recent cor.~ressional pronouncements approving the Council's construction of § 4l2(~). Totally aside from that circumstance, the suggestion of - appallee that the Corporation Counsel is somehow estopped to recon- sider a previously expressed legal view point and assert a different one based on subsequent analysis is glaringly untenable. - 19 - PAGENO="0060" 56 ataten~rts in the thousands of poges of legislative documents" (436 U. S. at 121). That is hardly true here since the reports of both houses are quite brief and each addresses tht athiinistrative construction in language leaving no room.for doubt. I~ore importantly, the Sloan Court refused to presume the correctness of the adniinistra- tive construction from subsequent congressional action because the invocation of such a presumption would have resulted in a construc- tion of the statute which was at odds with both the language of the particular provision addressing the Coimnission's emergency powers and "the pattern of the statute taken as a whole" (436 U. S. at 121). As we have previously demonstrated, the exact opposite is true here. If anything, Sloan exemplifies the obvious proposition that statutory construction is not an exact science, but necessarily de- pends upon a synthesis of various rules. Appl~'ing that thesis here, it becomes readily apparent that a consideration of (1) the plain statutory terms, (2) the pattern of the statute as a whole, (3) its legislative history, (4) its consistent contemporaneous construction, (5) the subsequent legislative awareness and approval of that con- struction, and (6) the patently absu~d consequences that would flow from appellee's proffered construction cogently combine in a manner which underscores the validity of the Council's construction of its emergency legislative powers and justifies endorsement of that con- struction by this Court. * We hasten to add that it by no means follows from the Council's construction of § 412 (a) that a successively enacted emergency mea- sure is immune from judicial review. Indeed, it is subject to the same obj ections that may be made to any permanent measure such as, for example, its constitutional sufficiency and its applicability to particular fact situatiOns. But, it is noteworthy that the court belbw ~oes not deal with the measure in question on grounds such as these. Nor does the court question the Council's declaration of a - 20 - PAGENO="0061" 57 ~cnuinc cmcrgc-ncv or its good faith efforts in dealing with it. In- stead, the court confines its ruling to a narrow legal ground in- volv~ng a question-of statutory construction and concludes only that § 412(a) of the Horse Rule Act precludes -the Council's `enactment of successive emergency measures. As previously demonstrated, the court's resolution of that issue is plain error tmder established rules of statutory construction. Appellee additionally urges that it was wrongfully denied an opportunity to participate in the legislative process in violation of § 404(c) of the Home Rule Act, D. C. Code, § 1-144(c) (Supp. V, 1978), which requires "adequate publication of intended action by the Council." As in the case of other provisions contained in § 404, subsection (c) relates to the Council's enactment of perma- nent legislation, not emergency legislation like that involved here. Compare §~ 404(d), (e) and (f) The matter of emergency legis- lation is separately dealt with `in § 412(a), which, in turn, envisions an Act taking effect "immediately" upon a determination that the re- quisite "emergency" circumstances so require. The legislatively re- cogriized need for "immediate" enact~ent of an emergency measure is - totally antithetical to the notion that Congress intended to detri- mentally delay its approval by imposing the type of advance notice - cons trairxts made applicable to permanent measures in § 404(c). Cf. Hobson v. District of Columbia, 304 A. 2d 637, 640, n. 2 (D. C. App., 1973). If, as appellee suggests, emergency measisres were to be governed by the 15 day advance notice requirement made applicable to permanent measures by the Council's rules, the Council's emergency legislativ~ powers would obviously be dealt a crippling blow. More- over, the emergency measure to which the injunctive relief aspect of this case relates was the reenactment of a previously enacted mea- sure, Both measures were published in the 0. C. Regis~er contemporane- - 21 - PAGENO="0062" 58 ously with the cc~r~ic-ncement of the respocti\'e erner~encies found to exist (see 25 OCR 10363 and 26 OCR. 1014). Such publication afforded appellee the opportunity to corrnunicate to the Council its views concerning whether the measures should be renewed or translated into permanent legislation. And, as previously noted, testimony was pre~ sented on behalf of appellee at the hearing conducted by the Emer- gency Cormnission appointed by the Council. Nothing in either the Home Rule Act or the Constitution requires that appellee be afforded a more extensive opportunity for participation in the ~ergency legis- lative process. Cf. Bowles v. Willinghem, 321 U. S. 503, 519 (1944). Finally, the court's holding that the case is not moot as to the emergency measures challenged in counts 2 and 3 of the complaint is at variance with settled principles. As the court notes (op. at 9), these emergency measures have been replaced by permanent legis- lation. That circumstance plainly renders the case moot. See Kremmens v. Hartley, 431 U. S. 119, 127-129 (1977). Since the perma- nent legislation embraces the subject matter of these caxpired 90 day emergency measures, it is difficult to conceive how such measures are matters "capable of repetition, yet evading review." Cf. Southern Pacific Terminal Co; v. ICC, 219 U. S. 498, 515 (1911). They thus can give rise to no presently existing live controve~sy. Even aside from this factor, the court (op. at 9) erroneously con- cludes that a period of "ninety days is certainly not sufficient tine for full litigation of the validity" of an emergency measure. Indeed, this very case auggeats that the contrary is true. Unlike SEC v. Sloan, ~ on which the court relies, it does not involve a 10 day suspension which cannot be subjected to "effective judicial review" (cf. 436 U. S. at 103). Moreover, appellee makes no speci- fic assertions spelling out adverse consequences that any of its rnembe~s will sustain under the expired emergency measures challenged in counts 2 and 3. Unquestionably, then, the case is moot as to these matters. - 22 - PAGENO="0063" 59 Conclusion Upon the foregoing, it is respectfully submitted that the order of the court:below should be suomurily reversed and the case remanded with directions to dismiss appellee's action. ~ JUDITH V. ROGERS, Corporation Counsel, D. C. 7 `-~-~ ~`c~ RICHARD V. }3ARTON, Deputy Corporation Counsel, D. C. Appellate Division :7/;. DAVID P. SUTTOif~ Assistant Corporation Counsel, D. C. ~ c~. ~S 3. STANFORD, Assistant Corporation Counsel, D. C. Attorneys for Appellant District of Columbia, District Building, ~Washirigton, D. C. 20004 Telephone: 727-6252 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Notion for Sum- mary Reversal was personally served, this 2nd day of November 1979, on each of the following: Stephen H. Sacks, Esquire Thomas E. Silf en, Esquire Linda G. Moore, Esquire Arnold & Porter 1229 19th Street, N. W, Washington, D. C. 20036 Attorneys for Appellee; - 23 - PAGENO="0064" 60 ,Terry 0. Anker, Esquire Lealie D. Nicholson, Esquire Weld, Harkrader & Ross 1300 19th Street, N. U. Washington, D. C. 20036; Kerry Alan Scanlon,. Esquire Washington Lawyers Coittee for Civil Rights Under Law 733 15th Street, N. U. Washington, D. C. 20005 Attorneys for Appellants Metropolitan Washington Planning and Housing Association, Inc., et al.; and Jason I. Newman, Esquire Harrison Ir.stitute for Public Law 605 G Street, N. U. Suite 401 Washington, D. C. 20C01 Of Counsel. (.~ , ~-~- ~ ~ DAVID P. SUTTON, Assistant Corporation Counsel, D. C. - 24 - PAGENO="0065" 61 DISTRICT OF COLUMBIA COURT OF APPEALS DISTRICT OF COLUMBIA and HETkOPOLITAN WASHINGTON PLANNING AND HOUSING ASSOCIATION, INC., et al., Appellants, V. NO. 79-1053 THE WASHINGTON HOME OWNERSHIP COUNCIL, INC., Appellee. ) SUPPLEMENtAL AFFIDAVIT OF ROBERT L. MOORE Robert L. Moore, being duly sworn, deposes and says: 1. I am the Director of the District of Columbia Depart- ment of Housing and Community Development (hereinafter DHCD). have previously submitted an affidavit in this case, and I make this affidavit to supplement my previous one. 2. I have read the affidavit of G.V. Brenneman, Jr~, submitted bythe plaintiff-appellee. Although that affidavit is factually correct, it omits certain essential facts, and as a result tends to give a false picture of what the effect would be of Judge Revercomb's injunction in this case In particular, Mr. Brenneman's affidavit creates the false impression that only high income persons would be displaced if condominium conversions were now to be permitted, and that no such conversions could occur in any event before this case is decided. The purpose of this affidavit is to clarify these matters for the COurt. 3. It is true, as Hr.. Brenneman states. that under the permanent laws of the r~~btrmct of Columbia (which are not affected by .~zie decision in this case), a building or project can be converted to condominium at the present time, in the 60-238 0 - 80 - 5 PAGENO="0066" 62 nbscnc~ of tenant consent, only if it is a "high rent housing accommodation" as defined in the law. However, Mr. Brennenan has failed to mention the actual rent levels which define the terec "high rent housing accommodations," and thereby gives the impression that only very expensive luxury units can be converted. This is not the case at all. The term "high rent housing accomirno- dations" is really a misnomer, since the rent levels necessary to meet this standard are actually quite low. Immediately prior to the enactment of the Emergency Condominium and Cooperative Stabilization Act of 1979, D.C. Act 3-44, approved Nay 29, 1979 (the first emergency moratorium act at issue in this case), the following minimum rent levels were sufficient to qualify a rental unit as a "high rent housing accommodation": efficiency apartment $221 one-bedroom amartment $267 two-bedroom apartment $314 three-bedroom apartment $408 As of October 20, 1979, these minimum rent levels were slightly increased; however, any unit which obtained a Certificate of Eligibility under the old standards would still be eligible for conversion. The new standards, which will apply only to Certi- ficatesof Eligibility issued after October 20,1979, are as follows: efficiency apartment S242 one-bedroom apartment $292 * two-bedroom apartment $344 * three-bedroom apartment $447 These rent levels are based on those established by the United States Department of Housing and Urban Affairs (BUD) for purposes of determining eligibility for housing assistance paysoents under -2- PAGENO="0067" 63 section 8 of the U.S. Mousing Act of 1937, 42 U.S.C. § 1437f. HUD regulations describe these rent levels as those `required to be paid in order to obtain . . . rental housing of modest (norr-luxury) nature . . . . 24 C.F.R. 9 890.102. A substantial percentage of rental housing in the District of Columbia meets these standards. 4. Mr. Erenneman's affidavit also states that even if the injunction issued by Judge Revercomb is not stayed, the 110 buildings (referred to in my previous affidavit) for which Certificates of Eligibility have already been granted could not complete the process of conversion, including the displacement of tenants, for approximately 120 days. This is true, assuming that none of the owners of such buildings have yet given their tenants notice of intent to convert. However, if the injunction were not stayed, the owners of those buildings i~ould be free to apply for registration as condominiums, and my office would be obliged to issue notice of any such application for registration within 5 days of receipt of the application. Once such a notice is issued, my office is required to complete the processing of the registration within 60 days, and that would occur even if this Court were to reverse Judge Revercomb's decision and uphold the emergency moratorium law. In other words, there is no way, under.existing law, to stop the conversion process once a notice of application for registration is issued. Therefore, even if the process of conversion, including displacement of tenants, could not be completed for up to 120 days, there would be no way PAGENO="0068" 64 to prcvc~t such cocolation once the notice of application for registration is issued. Robert L. Moore Subscribed and sworn to before me this day of October,1979. Notary Public PAGENO="0069" DISTMICT OF COLUMBIA COURT OF APPC~LS DISTRICT OF COLUMBIA and METROPOLITAN WASffINGTON PLANNING AND HOUSING ASSOCIATION, INC., et al., Appellants, ) ~ 79-1053 V. THE MASHINGTON HOME ONNERSHIP COUNCIL, INC., Appellee. ) ::~APPELLAUTS' REPLY TO APPELLEE'S MEMORANDUM IN OPPOSITION TO THE MOTION FOR STAY PENDING APPEAL Appellee's opposition to appellants' motion for a stay is devoted mainly to arguing the merits of this case Appellee suggests that the decision below is so clearly correct that rio serious issue is presented, and that a stay would merely maintain an invalid law in effect. We submit, however, that this case does present a serious legal issue. The decision b'~'ow, that the District of Columbia~Council nay never exercise .its emergency legislative power to enact a particular emergency measure more than once, is wholly without precedent. The Council has, in the past, reenacted numerous emergency measures for successive 9.0- day periods without challenge. There is no express prohibition - in the Home Rule Act against such reenactrnents, and the legis- lative history of that Act does not squarely address the question. Clearly, this case does present a serious issue, and one of tre- mendous public importance. The mere fact that one judge has decided that issue in favor of appellee does not settle `the issue, nor render this appeal frivolous. . 65 PAGENO="0070" 66 In any event, this Court will shortly have the oppor- tunity to consider the merits of this case fully. Aopellee has now filed a motibn for summary affirmance, accompanied by a memo- randum which is, in effect, its brief -on the merits. Appel~1ants plan to file motions for summary reversal by Friday, November 2, which will include a full presentation of appellants' arguments on the merits. We assume that the Court will-then expedite the oral argument and decision, so that this case can-promptly be concluded. Until the merits of this appeal are decided, however, a stay is absolutely essential to preserve the status quo and prevent irreparable injury to thousands of rental housing tenants in the District of Columbia. As we have previously demonstrated, the denial of a stay would permit the conversion of thousands of rental housing units to condominiums, resulting in the dislocation of tenants and a permanent reduction in the available rental - housing stock of this city. Appellee argues that, even in the absence of a stay, no condominium conversions can be completed for at least 120 days, because of the statutory requirement that tenants be given notice of intent to convert at least 120 days before they are actually evicted. What appellee ignores, however, is that if the injunction issued by the court below is not stayed, owners of rental buildings which have already obtained Certificates of Eligibility will be able to apply for registration as condominiums, and that, once that occurs, there will be no way to stop the conversion process It may be that no tenants will actually be evicted before this court issues its decision, but the important point is that there would be no way to prevent those evictions from occurring once the notice of filing of registration has issued, even if this Court -2- PAGENO="0071" 67 were to reverse the judgment below. This is made clear in the suDpleoental affidavit of Robert L. Moore attached hereto, as well as in his original affidavit which was attached to appellants' molion for stay.:' Appellee also suggests that only high income families will be affected by any conversions, because only "high rent housing accommodations" can be converted under District law. As the attached supplemental affidavit of Robert L. Moore makes clear, however, the term `high rent housing accommodations" is very misleading. In fact, the minimum rent levels required to qualify a building as a "high rent housing accommodation" are extremely low. Many low and moderate income families currently live in rental housing which is eligiblr for conversion under the so-called "high rent" standard. Appellee does not challenge the fact that there are 110 buildings, containing approximately 10,000 units which have already obtained Certificates of Eligibility, and which could apply for registration as condominiums if the injunction were not stayed. Nor does appellee deny that, `when such an applica- tion is filed, a notice of filing must' be issued within five days, and once that occurs there would be no way, under existing law, to prevent the conversion of those buildings to condominiums, even if the decision below were later reversed and the injunction vacated. It is' these undisputed facts which make a stay essential. Finally, appellee does not claim that any substantial harm will result to it or its members if the stay remains in effect until this appeal is decided. As we have noted above, it appears that this case oan be handled expeditiously, so that PAGENO="0072" 68 the stZiv will not need to be of lone duration. The sole effect of the stay will he to preserve the status quo for a relatively short period of time until this case i~ decided. CONCLUSION For the reasons stated above as well as in appellants' motion for stay, the Court should extend the stay which is now in effect pending the determination of this appeal. Respectfully submitted, ~uuj~a a. wuuu~s Corporation Counsel, D.C. JAMES J. STANFORD Assistant Corporation Counsel, D.C. Att~rneys for Appellant District of Columbia District Building Washington, B. C. 20004 (202) 727-6303 JERRY D. ANKER (49726) LESLIE D. MICHELSON (935049) WALD, HARKRADER & ROSS 1300 Nineteenth Street, N~W~ Washington, D. C. 20036 (202) 823-1200 KERRY ALAN SCANLON (942276) WASHINGTON LAWYERS' COM~MITTEE FOR CIVIL RIGHTS UNDER LAW 733 Fifteenth Street, N. W. Washington, D. C. 20005 (202) 347-3801 Attorneys for Apmellsnts Metro- politan Washington Planning and Housing Association, InC. and other Defendents-Intervenors RICHARD W. BURTON Deputy Corporation Counsel, D.C. DAVID P. SUTTON Assistant Corporation Counsel, D.C. Of Counsel: * JASON I. NEWMAN (142786) HARRISON INSTITUTE FOR PUBLIC LAt7 605 G Street, N.M. * Suite 401 Washington, D. C. 20001 (202) 624-8235 PAGENO="0073" 69 CERTIFICATE OF SERVICE 1 hereby certify that co9ies of the foregoing motion and attached Supplemental Affidavit of Robert L. Iloore were hand-delivered to counsel for appelle~ this day of PAGENO="0074" 70 DISTRICT OF COLUMBIA COURT OF APPEALS DISTRICT OF COLUMBIA, and METROPOLITAN WASHINGTON PLANNING AND HOUSING ASSOCIATION, INC., et al., ) C.A. No.: ~ c1 o53 Appellants, vm~mrr cr CCUS!E!A ) ~CUST OF A?PELLS THE WASHINGTON HOME OWNERSHIP, ) ~ COUNCIL, INC., OCT 22 i~i~ Appe 1 lee. Clerk APPELLANTS' EMERGENCY MOTION FOR AN IMMEDIATE STAY Appellants respectfully move this Court for an immediate stay of the final order of the Superior Court of the District of Columbia (Judge George H. Revercomb) in this case, dated October 19, 1979 (Exhibit A), pending the determination of this appeal. If the Court is unable to decide today whether such a stay should be granted, appellants respectfully request that a temporary be granted immediately pending the Court's determination as to whether to grant a further st~y. Such relief is absolutely essen- tial in this case in order to preserve the status quo. Appellants'. motion for a stay in the court below was denied by Judge Revercomb at 10:00 A.M. today, October 22, 1979. He also denied a request for a temporary stay pending an appli- cation for a further stay in this Court. As grounds for this motion appellants state the following: 1. This action was brought by plaintiff (appellee), the Washington Home Ownership Council, Inc. (WHOC), to challenge the validity of a number of acts of the Council of the District of Columbia which were enacted pursuant to the Council's emergency legislative authority under S 412(a) of the Home Rule Act, 1 D.C. Code § 146(a). That statute provides as follows: PAGENO="0075" 71 If the Council determines, by a vote of two thirds of the members, that emergency cir- cumstances make it necessary that an act be passed after a single reading, or that it take effect immediately upon enactment, such act shall be effective for a period of not to exceed ninety days. The acts challenged by plaintiffs were all second or subsequent enactments of emergency acts that had previously been adopted by the Council. The gravamen of plaintiffs complaint was that the Home Rule Act does not give the Council authority to enact any emergency measure more than once. The case was heard on cross motions for summary judgment, and the court sustained plaintiff's contentions. 2. The principal act at issue here is the Emergency Condominium and Cooperative Conversion Stabilization Act of 1979, * 1/ D.C. Act 3-95, which became effective August 27, 1979. One pre- vious act, identical to this one, was enacted on ~1ay 29, 1979. Because the presently effective act was a second enactment of a previous act, the court below declared it to be invalid and issued an injunction against its enforcement. * 3. The purpose and effect of this act was to impose a moratorium on the conversion of rental housing units to condomin- iums or cooperatives. It was adopted on the basis of a finding by the Council that there was an escalating trend toward such conversions, which was creating a severe shortage of rental housing in the District of Columbia. At the time the first mora- torium legislation was passed, the Council appointed a special commission to study the problem and recommend a permanent legis- lative solution. When it became apparent that the commission could not complete its work during the 90-day effective period 1/ All of the other acts challenged by plaintiff have either expired or have been superseded by permanent legislation whichsubstantially embodies all of their tersns. -2- PAGENO="0076" 72 of the initial enactment, the Council reenacted it for an addi- tional 90 days. The commission's report has now been completed, and ~,t is anticipated that the Council will shortly consider permanent legislation. 4. The object of the moratorium was to stabilize the housing market, and prevent further conversions, until permanent legislation could be considered and adopted. The moratorium was similar, in purpose and effect, to the kind of zoning freeze which is commonly adopted when new zoning ordinances are under considera- 2/ tion. 5. The effect of the injunction granted by the court below is to lift the moratorium and permit conversions to occur. As explained in the Affidavit of RobertL. Moore, attached hereto as Exhibit B, there are approximately 110 buildings containing close to 10,000 rental units which, prior to the moratorium, had already received so-called "certificates of eligibility" for conversion, and need only obtain registration in order to complete the conversion process. Once an application for registration has been filed, a notice of registration is issued within five days, and once such notice is issued, the registration must be granted regardless of whether the moratorium is in effect- Until now, the 2/ It is a matter of common knowledge that a zoning plan. of the extent contemplated in the instant case cannot be made in a day; therefore we may take judicial notice of the fact that it will take much time to work out the details of such a plan and that obviously it would be destructive of the plan if, during the per- iod of its incubation, parties seeking to evade the operation thereof should be permitted to enter upon a course of construction which might progress so far as to defeat in whole or in part the ultimate execu- tion of the plan. J4iller v. Board of Public Works,. 195 Cal. 477, 234 P. 381, 388 (1925). See also Walworth Co. v. City of Elkhorn, 27 Wis.2d 30, 133 N.W. 257, 262 (1965); Campara v. Township of Clark, 82 N.J. Super. 392, 197 A.2d 711 (1964); and Downham v. Ci~y Council of Alexandria, 58 F.2d 784, 788 (E.D. Va. 1932). -3- PAGENO="0077" 73 moratorium law has stood in the way of such registration. Unless an immediate stay is issued, it can be anticipated that the con- versi'on of these 110 buildings will occur, even if this court were later to reverse the judgment below. 6. The standards applicable to a stay pending appeal were stated in Virginia Petroleum Jobbers Association v FPC, 259 F.2d 921 (D.C. Cir. 1958), as follows: ***(l) Has the petitioner made a strong showing that it is likely to prevail on the merits of its appeal? ***(2) Has the petitioner shown * that without such relief it will be irreparably * injured? ***(3) Would the issuance of a stay substantially harm other parties interested in the proceedings? ***(4) Where lies the public interest? ** * In Washington Metropolitan Area Transit Commission V. Holiday Tours, Inc., 559 F.2d 841 (D.C. Cir. 1977), the court made clear that the first of these requirements -- the likelihood of success -- is to be balanced against the other three factors, and where those other factors strongly favor a stay it should be granted even if the court is in doubt as to the likelihood of success on the merits: An order maintaining the status quo is appropri- ate when a serious legal question is presented, when little. if any harm will befall other inter- ested persons or the public and when denial of the order would inflict irreparable injury on the movant. There is substantial equity, and need for judicial protection, whether or not movant has shown a mathematical probability of success. 559 F.2d at 844. 7. In this case, it is clear that "a serious legal ques- tion is presented." Nothing in the Home Rule Act expressly pro- hibits the Council from reenacting an emergency act a second tine if a new finding of "emergency. circumstances" is made by the neces- sary two-thirds vote of the entire Council. Nor has any court pre- viously held that the Council lackssuch authority; the question -4- PAGENO="0078" 74 is one of first impression. We have attached as Exhibits C and o to this motion the briefs of appellants in the Superior Court which discuss the tnerits of this case in more detail. Certainly there is sufficient likelihood of success on this appeal to satisfy the first of the Virginia Petroleum Jobbers criteria. 8. The most compelling reason for the issuance of a stay in this case is that the denial of a stay will cause severe and irreparable injury to thousands of citizens of the District of Columbia, which could not be undone even if the judgment below were later reversed. As the affidavit of Robert Moore makes clear, any significant hiatus in the moratorium would create an opportunity for the conversion of thousands of rental units. This would lead to the eviction of the tenants in those units, a large proportion of whom are low and moderate income families for whom there is vir- tually no alternative rental housing available. Furthermore, once these units are converted they will be permanently removed from the stock of rental housing in the city. If the judgment below is correct, this result may be unavoidable. But it should not be permitted to occur until this court has a full opportunity to review the decision below. 9. On the other hand, the issuance of a stay would not cause substantial injüryto plaintiff or to the real estate owners that plaintiff represents. The stay would merely continue in effect for the period of the appeal the condominium moratorium which has already been in effect since May. Defendant and intervenors are willing to cooperate with plaintiff to expedite the appeal, so that the period of the stay would be as short as possible. 10. Finally, the public interest plainly requires that a stay be granted. No one has even contended in this case, and the Court below did not find, that there is not a severe shortage of rental housing in the District of Columbia which would greatly -5- PAGENO="0079" 75 be exacerbated by the conversion of thousands of existing rental units to condominiums. The Councils finding that the Situation constituted a true, emergency, requiring immediate remedial action, has not been challenged. The only challenge here is to the pro- cedure utilized by the Council to respond to this crisis. At the very least, the Council's moratorium legislation should be per- mitted to remain in effect until there is a final and definitive ruling by this Court concerning its validity. Totally apart from the considerations discussed above, it should be emphasized that the court's holding effectively nul- lifies numerous other emergency measures not directly involved in this case, which have also been enacted more than once. As shown in Exhibit E attached hereto, there are many such measures pre- sently in effect, affecting various areas of serious public im- portance. It is thus apparent that, even outside the housing area, the decision below, if not stayed, will create widespread chaos and uncertainty. This is an additional reason for staying the judgment below until it receives the full plenary consideration of this court on appeal. Respectfully submitted, JUDITH W. ROGERS Corporation Counsel, D.C. RICHARD W. BUTTON Deputy Corporation Counsel, D.C. DAVID P. SUTTON Assistant Corporation Counsel, D.C. JAMES J. STANFORD Assistant Corporation Counsel, D.C. Attorneys for Appellant District of Columbia District Building Washington, D.C. 20004 (202) 727-6303 -6- PAGENO="0080" 76 JERRY D. ANKER (49726) LESLIE 0. MICHELSON (935049) WALD, HARI