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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
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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)
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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)
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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)
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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.
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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.
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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.
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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:]
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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
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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 -
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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."
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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,
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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