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Feldman v. Bowser supplemental authority superior court ruling 01967

Feldman v. Bowser supplemental authority superior court ruling 01967

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Case 1:15-cv-01967-EGS Document Filed 03/21/16 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
CLARICE FELDMAN,
Plaintiff,
MURIEL BOWSER, her official capacity Mayor the District Columbia,
and
JEFFREY DeWITT, his official
capacity Chief Financial Officer for
the District Columbia,
Defendants.
Civil Action No. 15-cv-01967-EGS
PLAINTIFF NOTICE SUPPLEMENTAL AUTHORITY
Plaintiff Clarice Feldman, counsel, respectfully submits this notice supplemental
authority: March 18, 2016, the Superior Court the District Columbia Council the
District Columbia Bowser, No. 2014-CA-002371-B, ruled that the Budget Autonomy Act
lawful under D.C. law. The Superior Court ruling attached Exhibit
Defendant DeWitt, Chief Financial Officer and the only defendant the case
before the Superior Court, satisfied with the ruling and does not plan appeal it. See Press
Release, Statement Chief Financial Officer Jeffrey Dewitt the Superior Court Decision
the Budget Autonomy Act (Mar. 18, 2016, attached Exhibit Now that have received
direction from the Superior Court, the city can develop its budget independently and not
Federal agency. This confirms Plaintiff assertion that Defendant DeWitt not adequately
protecting her interests D.C. taxpayer.
Case 1:15-cv-01967-EGS Document Filed 03/21/16 Page
The Superior Court did not address the question issue here: whether Defendants
have illegally incurred obligations and expended taxpayer monies pursuant the FY16 Budget
Request because such obligations and expenditures have not been appropriated Congress and
presented the President for signing. this Court previously concluded, such question
unequivocally presents federal question whether the Council can unilaterally amend the
District Charter fundamentally alter the roles the President and Congress with respect the
locally funded portion the District budget. Council the District Columbia Gray, Supp. 134, 144-145 (D.D.C. 2014).
Dated: March 21, 2016
Respectfully submitted,
/s/ Michael Bekesha
Michael Bekesha
D.C. Bar No. 995749
JUDICIAL WATCH, INC.
425 Third Street SW, Suite 800
Washington, 20024
Phone: (202) 646-5172
Counsel for Plaintiff Clarice Feldman
-2-
Case 1:15-cv-01967-EGS Document Filed 03/21/16 Page
Exhibit
Case 1:15-cv-01967-EGS Document Filed 03/21/16 Page
SUPERIOR COURT THE DISTRICT COLUMBIA
CIVIL DIVISION
COUNCIL THE DISTRICT
COLUMBIA,
Plaintiff,
and
MURIEL BOWSER, her official
capacity Mayor the District
Columbia,
Intervenor-Plaintiff,
JEFFREY DEWITT, his official
capacity Chief Financial Officer
the District Columbia,
Defendant.
Case No. 2014 2371
Calendar
Judge Brian Holeman
OMNIBUS ORDER
This matter comes before the Court upon consideration the following: (1) the Motion
for Judgment the Pleadings, filed Plaintiff Council the District Columbia October 2015; (2) the Motion for Judgment the Pleadings, filed Intervenor-Plaintiff Muriel
Bowser, her official capacity Mayor the District Columbia, October 30, 2015; and
(3) the Cross-Motion for Judgment the Pleadings, filed Defendant Jeffrey Dewitt, his
official capacity Chief Financial Officer the District Columbia, November 20, 2015.
The instant Cross-Motion also contains the papers opposition the Motions for Judgment
Case 1:15-cv-01967-EGS Document Filed 03/21/16 Page
the Pleadings. December 2015, the Council the District Columbia filed the Reply.1
FACTUAL AND PROCEDURAL BACKGROUND
The Local Budget Autonomy Act 2012
The instant action asks the Court determine whether not the Local Budget
Autonomy Act 2012 (the Budget Autonomy Act valid under the law. (Council Mem. 9.) Council Chairperson Phil Mendelson, his report behalf the
Committee the Whole, describes the Budget Autonomy Act legislation that would permit
the Council approve the District annual budget the same manner considers all other
legislation: two readings and 30-day Congressional review. Committee the Whole Report Bill 19-993, (Dec. 2012).
Further, [t]he District budget would longer require adoption appropriation
act Congress. Id. (emphasis added). Chairperson Mendelson asserts that this limited
autonomy would mean much more effective control over the District financial management.
Id. Colloquially, one the significant effects enacting the Budget Autonomy Act
The Court acknowledges the following Amici Curiae filings: (1) Memorandum Points and Authorities
for Former Members Congress and Congressional Staffers (the Honorable Ronald Dellums, the Honorable
Donald Fraser, the Honorable Fortney Pete Stark, Johnny Barnes, David Julyan, Dave MacIver, and Nelson
Rimensynder); (2) Brief Local Government Law Professors (Professors David Schleicher, David Super, and
Sheryll Cashin); (3) Memorandum Points and Authorities Former D.C. Attorney General Peter Nickles; (4)
Memorandum Points and Authorities the Center Budget and Policy Priorities and Professors Kate Stith,
Timothy Westmoreland, and David Kamin; (5) Brief Concerned D.C. Legal Professionals (Andrea Ferster,
Esquire, Marc Fleischaker, Esquire, Ronald Jessamy, Esquire, Carolyn Lamm, Esquire, Daniel Solomon,
Bruce Spiva, Esquire, Melvin White, Esquire, and Thomas Williamson, Jr., Esquire); (6) Memorandum Points
and Authorities D.C. Appleseed Center for Law Justice, D.C. Vote, D.C. Fiscal Policy Institute, and League
Women Voters the District Columbia; (7) Memorandum Points and Authorities Dr. Alice Rivlin, the
Honorable Thomas Davis, and the Honorable Anthony Williams; (8) Memorandum Points and Authorities Professor William Eskridge, Jr.; (9) Memorandum Points and Authorities the Bipartisan Legal Advisory
Group the U.S. House Representatives (the Honorable Paul Ryan, Speaker the House, the Honorable
Kevin McCarthy, Majority Leader, the Honorable Steve Scalise, Majority Whip, the Honorable Nancy Pelosi,
Minority Leader (under protest), and the Honorable Steny Hoyer, Minority Whip (under protest)); (10)
Memorandum Points and Authorities Leonard Becker, Former General Counsel the Mayor the District Columbia; Frederick Cooke, Jr., Former Corporation Counsel the District Columbia; and Wayne
Witkowski, Former District Columbia Deputy Attorney General; and (11) Corrected Brief Jacques Depuy,
Daniel Freeman, Jason Newman, and Linda Smith.
Case 1:15-cv-01967-EGS Document Filed 03/21/16 Page
would that the District would have the right spend its local tax and fee revenues without
seeking annual appropriation from Congress, thus enabling the District spend its funds
notwithstanding the absence congressional legislation appropriating funds for the next fiscal
year. Council the Dist. Columbia Gray, Supp. 134, 155 (D.D.C. 2014)
(Sullivan, J.) (emphasis added), vacated Council the Dist. Columbia Bowser, 2015
U.S. App. LEXIS 8881 (D.C. Cir. 2015) (per curiam); see also David Herszenhorn, Spending
Bill Passes, Averting Shutdown, N.Y. TIMES, Oct. 2015, A19 (stating that Congress
averted government shutdown approving temporary spending measure keep federal
agencies operating
The pertinent portions the Budget Autonomy Act are follows:
ENACTMENT LOCAL BUDGET COUNCIL.
Sec. 446. (a) Adoption Budgets and Supplements The
Council, within calendar days, otherwise provided law,
after receipt the budget proposal from the Mayor, and after
public hearing, and vote majority the members present
and voting, shall act adopt the annual budget for the District
Columbia government. The federal portion the annual budget
shall submitted the Mayor the President for transmission Congress. The local portion the annual budget shall
submitted the Chairman the Council the Speaker the
Houseof Representatives pursuant the procedure set forth
section 602(c). Any supplements the annual budget shall also
adopted act the Council, after public hearing, vote
majority the members present and voting.
(b) Transmission President During Control Years the
case budget for fiscal year which control year, the
budget adopted shall submitted the Mayor the President
for transmission the President the Congress; except, that the
Mayor shall not transmit any such budget, amendments
supplements the budget, the President until the completion
the budget procedures contained this Act and the District
Columbia Financial Responsibility and Management Assistance
Act 1995.
Case 1:15-cv-01967-EGS Document Filed 03/21/16 Page
(c) Prohibiting Obligations and Expenditures Not Authorized
Under Budget Except provided section 445A(b), section
446B, section 467(d), section 471(c), section 472(d)(2), section
475(e)(2), section 483(d), and subsections (f), (g), (h)(3), and (i)(3) section 490, amount may obligated expended any
officer employee the District Columbia government unless (1) such amount has been approved act the Council (and
then only accordance with such authorization) and such act has
been transmitted the Chairman the Congress and has
completed the review process under section 602(c)(3); (2) the
case amount obligated expended during control year,
such amount has been approved Act Congress (and then
only accordance with such authorization).
(d) Restrictions Reprogramming Amounts After the
adoption the annual budget for fiscal year (beginning with the
annual budget for fiscal year 1995), reprogramming amounts the budget may occur unless the Mayor submits the Council
request for such reprogramming and the Council approves the
request, but and only any additional expenditures provided under
such request for activity are offset reductions expenditures
for another activity.
(e) Definition this part, the term control year has the meaning
given such term section 305(4) the District Columbia
Financial Responsibility and Management Assistance Act 1995.
District Columbia Law 19-321, Title the District Columbia Register Section 1724
(Feb. 15, 2013) (hereafter the Budget Autonomy Act
The instant action does not present simple exercise lawmaking for the Council. The
District Columbia unique entity within the United States America: the District not
recognized state, instead formed municipal corporation Congress and, under the
Constitution, subject Congress authority exercise exclusive legislation over it. U.S.
CONST., art. cl. 17; Barnes D.C., U.S. 540, 547 (1875). result, citizens the
District are denied fundamental rights enjoyed citizens any State, such representation
Congress and corresponding say how the United States Government spends tax dollars
levied from citizens the District. See Banner United States, 303 Supp. (D.D.C.
Case 1:15-cv-01967-EGS Document Filed 03/21/16 Page
2004) The unfairness the District situation obvious and regrettable. Since the
establishment the District, courts have, however, understood that its unique constitutional
position results unfairness. early 1805, then Chief Justice Marshall recognized the
inequities compelled the Constitution concluded that the Supreme Court could not grant
the District the same benefits enjoyed the states. (citing Hepburn Dundas Ellzey,
U.S. 445, 453 (1805)).
The inequities the District position and lack statehood have been recognized and
reiterated its citizens, the President the United States, and the courts since the dawn this
country inception. See Banner, 303 Supp. see also Tim Craig, Obama use D.C.
taxation without representation license plates, THE WASHINGTON POST, Jan. 15, 2013,
https://www.washingtonpost.com/local/dc-politics/obama-to-use-dc-taxation-withoutrepresentation-license-plates/2013/01/15/f91b09ac-5f5b-11e2-9940-6fc488f3fecd_story.html
(stating that President Obama announced that all presidential limousines would use license plates
issued the District that contain the slogan taxation without representation
The instant action presents yet another chapter the District Columbia
longstanding struggle achieve self-government. Banner, 303 Supp. The District
took major step forward the path self-governance when Congress passed the District
Columbia Self-Government and Government Reorganization Act, commonly known the
Home Rule Act 1973. Home Rule Act, Pub. No. 93-198, Stat. 774 (codified amended District Columbia Code 1-201.01-1207.71 (2006)).
The Home Rule Act 1973 and Enactment Home Rule
For much the twentieth century, Congress wielded its authority under the Constitution exercise exclusive legislation over the District and confined the District municipal
Case 1:15-cv-01967-EGS Document Filed 03/21/16 Page
government mere administration. (Council Mem. (citing Metro. R.R.
District Columbia, 132 U.S. (1889)). result, Congress performed all legislative
functions for the District. See U.S. CONST., art. cl. 17. Then, 1973, Congress decided
fundamentally change its management and relationship with the District passing the Home
Rule Act.
Congress, through the Home Rule Act, relaxed its strict control the District affairs
and granted much more autonomy the District municipal government; the District
resembles full home rule city with general powers govern local affairs except for express
limitations, contrast with municipal corporation which state has granted only
enumerated powers. Convention Ctr. Referendum Comm. D.C. Bd. Elections Ethics,
441 A.2d 889, 903 (D.C. 1981) (emphasis added) (citation omitted). The lingering question
from the Home Rule Act, presented the courts numerous times since the Act enactment and presented the instant action, how much power does the District have govern its own
affairs vis- -vis Congress?2
The Home Rule Act set forth the District Columbia Charter (the Charter which
establishes the organizational structure the Government the District Columbia.
Jackson D.C. Bd. Elections Ethics, 999 A.2d 89, 94-95 (D.C. 2010) (citing D.C. Code
1-204.01-115 (2006)). The Charter [c]omparable state constitution. Zukerberg D.C.
Bd. Elections Ethics, A.3d 1064, 1072 (D.C. 2014); accord Convention Ctr. Referendum
Amici explain that the default balance power between the federal government and the District mirrors
the baseline relationship between states and localities: states and Congress possess plenary power unless they choose divest themselves it. Brief Local Government Law Professors Amici Curiae The District uniquely
positioned because neither state nor locality state existing the behest states and subject
states plenary authority such the city Portland, Oregon; the District home rule city subject solely the
will Congress. Id. (citations omitted).
Case 1:15-cv-01967-EGS Document Filed 03/21/16 Page
Comm., 441 A.2d 903. The Charter became effective when ratified the citizens the
District through Charter referendum vote. Jackson, 999 A.2d (citation omitted).
The Charter created tripartite form government for the District that parallel the
structure state and federal governments: executive branch, legislative branch, and judicial
branch the District, each recognized distinct sovereign from the States and the federal
government. Id. (citations omitted). The Mayor the District Columbia the District
executive, the Council the District Columbia the District legislature, and the Superior
Court the District Columbia and District Columbia Court Appeals are the District
judiciary. See D.C. Code 1-204.01 (Charter provisions for the Council), 1-204.21 (Charter
provisions for the Mayor), 1-204.31 (Charter provisions for the District Columbia Courts).
The fundamental dispute the instant action centers the powers purportedly granted, not granted, the Council exercising legislative powers behalf the District. The
District Columbia Court Appeals, reiterating provisions the Home Rule Act, states:
Except provided sections 601, 602, and 603 [of the Home
Rule Act], the legislative power the District shall extend all
rightful subjects legislation within the District consistent with
the Constitution the United States and the provisions this
chapter subject all the restrictions and limitations imposed upon
the states the 10th section the 1st article the Constitution the United States.
Jackson, 999 A.2d (citing D.C. Code 1-203.02 (2006)). Under the Home Rule Act, the
Council empowered pass legislation majority vote after two readings, least thirteen
Case 1:15-cv-01967-EGS Document Filed 03/21/16 Page
days apart. Id. (citing D.C. Code 1-204.12(a) (2006)).3 the Mayor does not veto legislation
passed the Council within ten (10) days, the Council overrides mayoral veto twothirds vote, that legislation subject thirty-legislative-day layover Congress and then
becomes effective, unless disapproved concurrent resolution issued Congress. Id. (citing
D.C. Code 1-204.12(a) reads:
The Council, discharge the powers and duties imposed herein, shall pass acts
and adopt resolutions, upon vote majority the members the Council
present and voting, unless otherwise provided this chapter the Council.
Except provided the last sentence this subsection, the Council shall use
acts for all legislative purposes. Each proposed act shall read twice
substantially the same form, with least days intervening between each
reading. Upon final adoption the Council each act shall made immediately
available the public manner which the Council shall determine. the
Council determines, vote two-thirds the members, that emergency
circumstances make necessary that act passed after single reading,
that take effect immediately upon enactment, such act shall effective for
period not exceed days. Resolutions shall used (1) express simple
determinations, decisions, directions the Council special temporary
character; and (2) approve disapprove proposed actions kind
historically traditionally transmitted the Mayor, the Board Elections,
Public Service Commission, Armory Board, Board Education, the Board
Trustees the University the District Columbia, the Convention Center
Board Directors the Council pursuant act. Such resolutions must
specifically authorized that act and must designed implement that act.
Case 1:15-cv-01967-EGS Document Filed 03/21/16 Page
D.C. Code 1-206.02(c)(1) (2006)).4
The District Budgetary Process
Prior the passage the Home Rule Act, the Treasury the United States (the
Treasury maintained general fund for the benefit the District. The District was treated
like federal agency; its fund could spent once Congress appropriated money from the U.S.
Treasury. (Council Mem. 6.); see U.S. CONST., art. cl. 17. Under the
Home Rule Act, the General Fund, composed revenues obtained from citizens the District
that are paid into the Treasury, belong[s] the District government and shall paid promptly the Mayor for deposit the appropriate fund. Home Rule Act 450.
The current version D.C. Code 1-206.02(c)(1), substantively similar the 2006 version cited
Jackson, reads:
Except acts the Council which are submitted the President accordance
with Chapter Title 31, United States Code, any act which the Council
determines, according 1-204.12(a), should take effect immediately because emergency circumstances, and acts proposing amendments subchapter this chapter and except provided 1-204.62(c) and 1-204.72(d)(1) the
Chairman the Council shall transmit the Speaker the House
Representatives, and the President the Senate, copy each act passed
the Council and signed the Mayor, vetoed the Mayor and repassed
two-thirds the Council present and voting, each act passed the Council and
allowed become effective the Mayor without his signature, and each
initiated act and act subject referendum which has been ratified majority the registered qualified electors voting the initiative referendum. Except provided paragraph (2) this subsection, such act shall take effect upon
the expiration the 30-calendar-day period (excluding Saturdays, Sundays, and
holidays, and any day which neither House session because
adjournment sine die, recess more than days, adjournment more
than days) beginning the day such act transmitted the Chairman the
Speaker the House Representatives and the President the Senate,
upon the date prescribed such act, whichever later, unless during such 30day period, there has been enacted into law joint resolution disapproving such
act. any case which any such joint resolution disapproving such act has,
within such 30-day period, passed both Houses Congress and has been
transmitted the President, such resolution, upon becoming law, subsequent
the expiration such 30-day period, shall deemed have repealed such act, the date such resolution becomes law. The provisions 1-206.04, except
subsections (d), (e), and (f) such section, shall apply with respect any joint
resolution disapproving any act pursuant this paragraph.
Case 1:15-cv-01967-EGS Document Filed 03/21/16 Page
However, Section 603(a) the Home Rule Act states:
Nothing this Act shall construed making any change
existing law, regulation, basic procedure and practice relating
the respective roles the Congress, the President, the Federal
Office Management and Budget, and the Comptroller General
the United States the preparation, review, submission,
examination, authorization, and appropriation the total budget
the District Columbia government.
Historically, the Government the District Columbia, interpreting Section 603(a)
the Home Rule Act, has followed the same process and awaited congressional approval its
budget spending before spending any amount the General Fund, reserve money that
express language the statute belong[s] the District government. (Council Mem. 6-7.); Home Rule Act 450, 603(a). Section 446 the Home Rule Act reiterates the
need for approval from Congress:
The Council, within fifty [50] calendar days after receipt the
budget proposal from the Mayor, and after public hearing, shall
act adopt the annual budget for the District Columbia
government. Any supplements thereto shall also adopted act the Council after public hearing. Such budget adopted shall submitted the Mayor the President for transmission
him the Congress. amount may obligated expended
any officer employee the District Columbia government
unless such amount has been approved Act Congress, and
then only according such Act. Notwithstanding any other
provision this Act, the Mayor shall not transmit any annual
budget amendments supplements thereto, the President
the United States until the completion the budget procedures
contained this Act.
(emphasis added). Although the Mayor, the District executive, has the power propose the
budget and the Council, the District legislature, has the power adopt the budget, the
budget not effective until approved Congress. Home Rule Act 446.
The 114th Congress explains that federal funds, and the funds the District, are made
available for obligation and expenditure only [a]ppropriations which are accomplished
Case 1:15-cv-01967-EGS Document Filed 03/21/16 Page
via congressional enactments commonly referred appropriations acts[.] Brief for
Bipartisan Legal Advisory Group the U.S. House Representatives Amicus Curiae
Congress notes that [a]ppropriations should not confused with budgets. Budgets not
provide any legal authority obligate expend funds; they are merely requests
recommendations for spending levels traditionally submitted Congress the heads the
other branches government. Id. Rather, [a]ppropriations the process which funds
are made available for obligation and expenditure. Id. (citing U.S. CONST., art.
cl. (citation omitted). The process appropriations distinct from the act spending
funds; public entity can only spend funds that are made available through appropriations. See
id.
Currently, the District reliant congressional passage appropriations act prior
each fiscal year; the failure Congress pass such legislation prevents federal agencies and the
District from spending any funds for the upcoming fiscal year. See 2012 and 2013
Spending and Performance the Office Budget and Planning: Hearing before the Comm.
the Whole, Council D.C. (Mar. 14, 2013), http://cfo.dc.gov/sites/default/files
/dc/sites/ocfo/release_content/attachments/Testimony%20--%20FY%202012%20and%202013
%20Spending%20Performance%20for%20OBP%20031413.pdf. District agencies are unable
maintain normal operations until the passage funding legislation, leading lower
availability public services and benefits such police patrols, public school nurses, and
prescription drug benefits. Budget Autonomy for the District Columbia, Hearing before the
House Comm. Gov Reform, 108th Cong. (2003) (statement then-Mayor Anthony
Williams).
Case 1:15-cv-01967-EGS Document Filed 03/21/16 Page
After Congress passes and the President signs appropriations act, the Government
the District Columbia able spend its funds. These funds are placed the custody the
Chief Financial Officer the District Columbia. See District Columbia Financial
Responsibility and Management Assistance Act 1995, 109 Stat. 142 (1995).
The Budget Process for Fiscal Year 2015 July 25, 2013, after ratification overwhelming majority voters the District,
the Budget Autonomy Act became law. See DISTRICT COLUMBIA BOARD ELECTIONS,
SPECIAL ELECTION FILL VACANCY THE OFFICE LARGE MEMBER THE COUNCIL THE DISTRICT COLUMBIA (2013)
(official results from the special election held April 23,
2013 that indicates that approximately 82% voters voted favor adopting the Budget
Autonomy Act). The Council began working with then-Mayor Vincent Gray develop the
budget for Fiscal Year 2015, the period October 2014 September 30, 2015. (Compl. 67.) However, April 11, 2014, then-Mayor Gray and Chief Financial Officer CFO Jeffrey DeWitt sent letters Council Chairperson Phil Mendelson advising [the Council] that they
would refuse enforce the Budget Autonomy Act. (Id. 52.) his letter April 11, 2014, then-Mayor Gray, acting advisory opinion from the
Attorney General the District Columbia, stated that the opinion concludes the [Budget
Autonomy Act] legal nullity can have effect the formation the District budget
and that the District must comply with federal law while [the District] continue[s] push
Congress for budget autonomy. Letter from Vincent Gray, Mayor, Office the Mayor
the District Columbia, Phil Mendelson, Chairman, Council the District Columbia
(Apr. 11, 2014) (on file with the Council the District Columbia); (Compl. (citing Op. the D.C. Att Gen., Whether the Local Budget Autonomy Act 2012 Legally Valid (Apr.
Case 1:15-cv-01967-EGS Document Filed 03/21/16 Page 2014)).) The letter CFO DeWitt states his similar position that there legal validity
the [Budget Autonomy Act]. Letter from Jeffrey DeWitt, Chief Financial Officer, Office
the Chief Financial Officer the District Columbia, Phil Mendelson, Chairman, Council
the District Columbia (Apr. 11, 2014) (on file with the Council the District Columbia). April 17, 2014, less than one (1) week after receipt these letters, the Council filed
the instant action the Superior Court the District Columbia (the Superior Court
(Compl. 1.)
The Instant Litigation the Complaint, the Council asserts that then-Mayor Gray and CFO DeWitt positions
are based wrongful belief that the Budget Autonomy Act invalid. There
constitutional statutory basis for their decision disregard the Act. (Compl. 8.) The
Council seeks declaration that [the] Budget Autonomy Act valid and injunction
compelling the CFO comply with the law. (Id. 10.) April 17, 2014, the instant action
was removed the United States District Court for the District Columbia (the District
Court (Not. Removal, Apr. 17, 2014.) Meanwhile, Muriel Bowser defeated then-Mayor
Vincent Gray the Democratic primary election for the office Mayor the District
Columbia. Mike DeBonis Aaron Davis, Muriel Bowser declares victory D.C. mayoral
primary, THE WASHINGTON POST, Apr. 2014, https://www.washingtonpost.com/local/dcpolitics/muriel-bowser-declares-victory-in-dc-mayoral-primary/2014/04/02/7176390e-b5b811e3-b899-20667de76985_story.html. May 19, 2014, the District Court issued the Memorandum Opinion and Order that
declared the Budget Autonomy Act invalid and permanently enjoined Mayor Vincent Gray,
CFO Jeffrey DeWitt, the Council the District Columbia, its officers, agents, servants,
Case 1:15-cv-01967-EGS Document Filed 03/21/16 Page
employees, and all persons active concert participation with them who receive actual notice the injunction. Council the Dist. Columbia, Supp. 155-56. The Council
appealed the decision the District Court the United States Court Appeals for the District Columbia Circuit (the D.C. Circuit Meanwhile, Muriel Bowser prevailed the general
election 2014 and assumed office the Mayor the District Columbia. Mike DeBonis
Aaron Davis, Bowser elected D.C. mayor, defeating independents Catania and Schwartz,
THE WASHINGTON POST, Nov. 2014, https://www.washingtonpost.com/local/dc-politics/dcmayoral-candidates-bowser-catania-schwartz-await-voters decision/2014/11/04/494fe 0d6-533f11e4-892e-602188e70e9c_story.html. May 27, 2015, the D.C. Circuit issued the Order ruling that:
Upon consideration Mayor Bowser suggestion mootness
and motion dismiss the appeal ORDERED that the
motion granted. The judgment the [District Court] hereby
vacated and the case remanded the district court with
instructions remand the case the D.C. Superior Court.
Council the Dist. Columbia, 2015 U.S. App. LEXIS 8881. June 19, 2015, the parties
filed the Joint Motion Remand the District Court. June 23, 2015, the District Court
entered the Order that granted the Joint Motion Remand and ordered that the instant action
remanded the Superior Court. Order, Council the Dist. Columbia Bowser, al., Civil
Action No. 14-655 (D.D.C. June 23, 2015) (Sullivan, J.) November 13, 2015, this Court entered the Omnibus Order that ruled, inter alia, that
Mayor Bowser dismissed party-Defendant and granted leave intervene partyPlaintiff. (Omnibus Order, Nov. 13, 2015, 2.)
Case 1:15-cv-01967-EGS Document Filed 03/21/16 Page
II.
ANALYSIS
The Applicable Standard
Under the Superior Court Rules Civil Procedure, Rule 12(c), [a]fter the pleadings are
closed but within such time not delay the trial, any party may move for judgment the
pleadings. The instant action presents pure question law, namely whether not piece
legislation enacted the Council valid. This type question and the substantial record
presented render this Court rulings fully dispositive.
The Effect the Decision the District Court
The CFO asks that this Court consider adopting Judge Sullivan opinion issued
the underlying District Court case, Council the Dist. Columbia Gray, Supp. 134
(D.D.C. 2014); (CFO Mem. 2.) well-established that February 1971,
[the] highest court the District Columbia the District Columbia Court Appeals
and the courts this jurisdiction are not bound the decisions the United States Court
Appeals rendered after that date nor decisions rendered the District Court. M.A.P. Ryan,
285 A.2d 310, 312 (D.C. 1971) (emphasis added). Precedent from the United States District
Court and United States Court Appeals are persuasive, not controlling, authority. Id.
Here, matter procedure, the opinion issued the District Court does not have
precedential value; was vacated higher court. Council the Dist. Columbia, 2015 U.S.
App. LEXIS 8881. While this Court finds the District Court analysis persuasive, this Court
Case 1:15-cv-01967-EGS Document Filed 03/21/16 Page
will not summarily adopt the opinion the District Court nor treat controlling authority.5
Federal Preemption the Budget Autonomy Act
The Supremacy Clause the Constitution states that this Constitution, and the laws
the United States shall the supreme law the land; and the Judges every State shall
bound thereby, any Thing the Constitution Laws any State the Contrary
notwithstanding. U.S. CONST., art. VI, cl. (emphasis added). Interpreting the Supremacy
Clause, the Supreme Court has held that:
Federal law enforceable state courts not because Congress has
determined that federal courts would otherwise burdened that
state courts might provide more convenient forum but
because the Constitution and law passed pursuant are much
laws the States laws passed the state legislature. The
Supremacy Clause makes those laws the Supreme Law the
Land, and charges state courts with coordinate responsibility
enforce that law according their regular modes procedure.
Howlett Rose, 496 U.S. 356, 367 (1990). The result the default rule, that federal
laws are enforceable and supersede state laws and the laws the District Columbia, unless
there explicit statutory directive, unmistakable implication from legislative history, clear incompatibility between state-court jurisdiction and federal interests. Portuguese Am.
Leadership Council the United States, Inc. Investors Alert, Inc., 956 A.2d 671, 676 (D.C.
2008) (citing Gulf Offshore Co. Mobil Oil Corp., 453 U.S. 473, 478 (1981)).
The CFO assertion that the District Court analysis [was] not questioned the D.C. Circuit not
without merit. one-page Order per curiam, the D.C. Circuit ruled that the Mayor motion [to dismiss the
appeal] granted and the judgment the [District Court] hereby vacated and the case remanded with
instructions remand the case the D.C. Superior Court. Council the Dist. Columbia, 2015 U.S. App.
LEXIS 8881. There not much guidance secured from the proceedings before the D.C. Circuit, although apparent that the D.C. Circuit did express interest the jurisdictional issue standing. See Transcript Oral
Argument 30-31, Council the Dist. Columbia, No. 14-7067 (D.C. Cir. 2014) JUDGE MILLETT: Can you
start with standing for us, please anytime, anywhere this country city council and mayor are fighting
about how law being implemented that city council can bring lawsuit asking federal court tell the mayor
how implement the law? ).)
Case 1:15-cv-01967-EGS Document Filed 03/21/16 Page undisputed the courts this jurisdiction must enforce the Home Rule Act. The
critical issue that must resolved this Court whether the Budget Autonomy Act
preempted the Home Rule Act other federal law; [i]t has been settled that state law that
conflicts with federal law without effect. Estate Couse, 850 A.2d 304, 308 (D.C.
2004) (per curiam). Stated another way, there any conflict between federal law, such the
Home Rule Act, and the Budget Autonomy Act, the Budget Autonomy Act invalid. See id.
The courts have identified three ways which federal statute can preempt state law: (1) express pre[]emption, where statutory language reveals explicit congressional intent
pre-empt state law[;] (2) field pre[]emption, which federal law thoroughly occupies
legislative field make reasonable the inference that Congress left room for the States
supplement it[;] and (3) implied conflict pre[]emption, which applies where compliance
with both federal and state regulations physical impossibility, where state law stands obstacle the accomplishment and execution the full purposes and objections
Congress. Id. (citations omitted). the instant matter, where the Home Rule Act the governing piece federal
legislation delineating the powers the District vis- -vis Congress, preemption analysis will
largely center whether the provisions the Home Rule Act (1) expressly bar the enactment the Budget Autonomy Act, (2) left room for the District enact the Budget Autonomy
Act amendment existing legislation the Charter, (3) can read imply that
enactment the Budget Autonomy Act against the intent, full purposes[,] and objections
Congress when Congress passed the Home Rule Act. Id.; Convention Ctr. Referendum Comm.,
441 A.2d 903 (citation omitted).
Case 1:15-cv-01967-EGS Document Filed 03/21/16 Page
While much attention will given the Home Rule Act, there complication this
analysis occasioned second relevant piece federal legislation. The Anti-Deficiency Act,
codified Title United States Code 1341, states that officer employee the District
may not, inter alia, make authorize expenditure obligation exceeding amount
available appropriation fund for the expenditure obligation.
The Budget Autonomy Act amends existing provisions the Charter and the laws the
District Columbia. See Budget Autonomy Act, The District Columbia Home Rule
Act D.C. Official Code 1201.01 seq. amended follows: result, the
Budget Autonomy Act faces two significant hurdles: (1) the overarching limits placed the
District its ability appropriate and spend funds accordance with the Constitution and
federal law, and (2) provisions the Home Rule Act governing amendment the Charter and
corresponding limits the ability the District effectuate such amendment.
Section 446 the Home Rule Act states that [n]o amount may obligated expended any officer employee the District Columbia government unless such amount has been
approved Act Congress, and then only according such Act. Section 602(a)(3) the
Home Rule Act states that the Council shall have authority (3) enact any act, enact
any act amend repeal any Act Congress, which concerns the functions property the
United States which not restricted its application exclusively the District.
Section 603(a) the Home Rule Act states that [n]othing [the Home Rule Act] shall
construed making any change existing law, regulation, basic procedure and practice
relating the respective roles the Congress, the President, the federal Office Management
and Budget, and the Comptroller General the United States the preparation, review,
Case 1:15-cv-01967-EGS Document Filed 03/21/16 Page
submission, examination, authorization, and appropriation the total budget the District
Columbia government.
The plain language Section 446 requires affirmative act Congress before the
District can spend any funds; one the Government the District can spend single cent
public funds unless such amount has been approved Act Congress, and then only
according such Act. Home Rule Act 446. The Budget Autonomy Act seeks amend
Section 446 remove the requirement that Congress pass appropriations act prior the
expenditure any funds the District; the budget would automatically effective and funds
could spent Congress does not affirmatively object. (See Council Mem.
(stating that the proposed amendments require that the budget for local funds must approved act that adopted the Council after two readings transmitted Congress for 30day review period and funds appropriated the District Congress does not adopt
concurrent resolution disapproving the act adopted the Council).); Budget Autonomy
Act, (proposed Section 446(c), (e)); Home Rule Act 602(c).
Stated another way, the status quo that Congress must say yes before the District can
spend its funds. The Budget Autonomy Act proposes that the District can spend its funds long Congress doesn say no. See Brief the Bipartisan Legal Advisory Group the U.S. House Representatives Amicus Curiae (stating that the Budget Autonomy Act would
transform[] Congress role the District budget process from one active enactment one passive review
Currently, the District power amend the Charter stems from delegation authority
from Congress; Congress, enacting the Home Rule Act, voluntarily gave powers the
District. See INS Chadha, 462 U.S. 919, 955 (1983) (holding that Congress must abide its
Case 1:15-cv-01967-EGS Document Filed 03/21/16 Page
delegation authority until that delegation legislatively altered revoked The issue
bar whether the Home Rule Act prohibits the District from using the Budget Autonomy Act
amend its budgetary process.
Delegation Authority from Congress the District
Congress chose delegate significant portion its authority over the affairs the
District the Government the District. The Statement Purposes the Home Rule Act
explicitly provides that the intent Congress delegate certain legislative powers the
government the District Columbia grant the inhabitants the District Columbia
powers local self-government. Home Rule Act 102. Further, the Home Rule Act seeks the greatest extent possible, consistent with the constitutional mandate, [to] relieve Congress the burden legislating upon essentially local District matters. Id. (emphasis added).
Following upon this express statement legislative intent, Amici analysis Dillon
Rule probative. Dillon Rule generally provides that localities, such the District, can
exercise [some] powers and not others [a]ny fair, reasonable, substantial doubt concerning
the existence power resolved the courts against the [municipal] corporation, and the
power denied. Brief Local Government Law Professors Amici Curiae (citing JOHN DILLON, COMMENTARIES THE LAW MUNICIPAL CORPORATIONS 237 (5th ed. 1911)).
Prior adoption home-rule the District, would correctly argued that Dillon Rule
inapposite due the unique status the District; Dillon Rule concerns the power localities
vis- -vis state governments and not the circumstance entity subject near-total control
Congress. See id. (citations omitted).
With the adoption home rule, Congress intended and did fact relieve [itself]
the burden legislating essentially local District matters. Home Rule Act 102. seen
Case 1:15-cv-01967-EGS Document Filed 03/21/16 Page home-rule systems adopted the States, Congress created legislative-style home[-]rule
structure where Congress entrusted the District with the management its own affairs, while
retaining the power veto the District actions. Brief Local Government Law Professors
Amici Curiae (citing D.C. Code 1-201.02(a), 1-206.01). Under D.C. Code 1-206.02(c)(1),
the Council and the Mayor have the power enact amendments the Charter subject
review period Congress; Congress can exercise its ultimate veto power passing joint
resolution disapproving such act.
The modern approach that ambiguities home-rule grants should resolved
favor the locality ability act. Brief Local Government Law Professors Amici
Curiae (citing provisions several state constitutions) (footnote omitted). Application the
modern approach Dillon Rule consistent with the stated purpose Congress grant
the inhabitants the District Columbia powers local self-government. Home Rule Act
102. canon statutory interpretation that court must strive effectuate the legislative
purpose[.] M.M.D., 662 A.2d 837, 846 (D.C. 1995) (citation omitted); see also Brief
Local Government Law Professors Amici Curiae (citing Rep. No. 93-219, (1973)
(explaining that the Home Rule Act would relieve Congress legislating local District
matters while still ensuring that Congress can protect any federal interests the capital)).
There ambiguity the Home Rule Act constructed. For example, Section 450
states:
The General Fund the District shall composed those
District revenues which the effective date this title
[December 24, 1973] are paid into the Treasury the United
States and credited either the General Fund the District its
miscellaneous receipts, but shall not include any revenues which
are applied law any special fund existing the date
enactment this title [December 24, 1973]. The Council may
from time time establish such additional special funds may
Case 1:15-cv-01967-EGS Document Filed 03/21/16 Page
necessary for the efficient operation the government the
District. All money received any agency, officer, employee the District its his official capacity shall belong the
District government and shall paid promptly the Mayor for
deposit the appropriate fund, except that all money received
the District Columbia Courts shall deposited the Treasury the United States the Crime Victims Fund. acknowledged the CFO, this provision separates the District General Fund from the
[United States] Treasury[.] (CFO Mem. 35.) Dillon Rule advocates would
argue that this ambiguity regarding control the General Fund resolved against the District.
Nevertheless, under the modern approach, the statute may reasonably construed act
Congress that hands control the General Fund, financial resources derived from local revenues
and independent the Federal payment, the District. the Budget Autonomy Act, profound significance that Congress did not
exercise its ultimate authority veto. See D.C. Code 1-206.02(c)(1) (granting Congress the
authority veto any legislation passed the Council). undisputed that the Council and the
Mayor followed the required procedures bring the Budget Autonomy Act referendum
before the citizens the District. (Council Mem. 9.) undisputed that the
citizens the District overwhelmingly demonstrated their support for the Budget Autonomy
Act, voting adopt 82-to-18 percent margin. (See Id.) undisputed that the Budget
Autonomy Act was subject the review period under statute. Finally, undisputed that
Congress did not pass joint resolution voicing its disapproval. (Id.); see D.C. Code 1206.02(c)(1).
Congress must abide its delegation authority until that delegation legislatively
altered revoked. Chadha, 462 U.S. 955. Absent express prohibition, the Court must
view the Home Rule Act measure undertaken Congress delegate its authority over the
Case 1:15-cv-01967-EGS Document Filed 03/21/16 Page
District the Government the District. That delegated authority includes the power enact
legislation amending the Charter and govern local affairs, subject the discretionary exercise
veto power Congress. D.C. Code 1-206.02(c)(1).
Application the delegation doctrine establishes that the District generally has the
power amend the Charter and the ability address ambiguities passing legislation, subject veto power retained Congress. Id. Absent the exercise that veto, the Budget Autonomy
Act must viewed, provisionally, valid. Id.; see Chadha, 462 U.S. 955. The remaining
impediment full judicial affirmation the Budget Autonomy Act validity the
consideration federal preemption, i.e. whether existing federal legislation expressly prohibits
the District from exercising its authority delegated Congress. See Estate Couse, 850
A.2d 308 (discussing federal preemption).
Statutory Interpretation
The CFO contends that there are three independent statutory provisions that prohibit the
District from amending Section 446 the Home Rule Act: (1) Section 602(a)(3); (2) Section
603(a); and (3) the Anti-Deficiency Act, specifically U.S.C. 1341(a)(1)(A). Each
addressed turn. has been settled that state law that conflicts with federal law without effect.
Estate Couse, 850 A.2d 308 (citations omitted). Preemption analysis starts with the
assumption that the historic police powers the States [are] not superseded the Federal
Act unless that was the clear and manifest purpose Congress. Id. (citations omitted). The
governing document the District, the Charter, [c]omparable state constitution.
Zukerberg, A.3d 1072; accord Convention Ctr. Referendum Comm., 399 A.2d 552.
Further, the Home Rule Act created independent municipal government the District that
Case 1:15-cv-01967-EGS Document Filed 03/21/16 Page
considered separate and distinct sovereign from the federal government. See, e.g., D.C. Code
1-204.31 (creating the District Columbia Courts, which are separate and distinct from the
federal courts).
[T]he purpose Congress the ultimate touchstone every preemption case any
understanding the scope preemption statute must rest primarily fair understanding
congressional purpose, discerned from the statutory language, the statutory framework, and
the structure and the purpose the statute whole. Estate Couse, 850 A.2d 308
(citing Medtronic, Inc. Lohr, 518 U.S. 470, 485-86 (1996)).
The Court Appeals has prescribed comprehensive approach statutory
interpretation:
Initially, the court must look the language the statute itself see the language plain and admits more than one
meaning, since the primary and general rule statutory
construction that the intent the lawmaker found the
language that [or she] has used. added, however, that this
plain language plain meaning rule the first, but not always
the last the most illuminating step statutory analysis.
then outlined situations which courts properly look beyond the
plain meaning statutory language.
First, even where the words statute have superficial clarity,
review the legislative history in-depth consideration
alternative constructions that could ascribed statutory
language may reveal ambiguities that the court must resolve.
Second, the literal meaning statute will not followed when produces absurd results.
Third, whenever possible, the words statute are
construed avoid obvious injustice.
Finally, court may refuse adhere strictly the plain wording statute order effectuate the legislative purpose,
determined reading the legislative history
examination the statute whole.
Case 1:15-cv-01967-EGS Document Filed 03/21/16 Page concluded warning that these four exceptions the plain
meaning rule should not understood swallow the rule
completely, since there are strong policy reasons why everyone
should able rely what the statutory language, commonly
understood, appears say. Accordingly, said, court should
look beyond the ordinary meaning the words statute only
where there are persuasive reasons for doing so. M.M.D., 662 A.2d 846 (citations omitted).
Home Rule Act Section 602(a)(3)
Section 602(a)(3) the Home Rule Act states that the Council shall have authority (3) enact any act, enact any act amend repeal any Act Congress, which concerns
the functions property the United States which not restricted its application
exclusively the District[.]
The federal government, the nation capital, retains large presence the District.
Consequently, large portion real property the District owned the federal
government and, therefore, exempt from District taxation. Newman DePuy, Bringing
Democracy the Nations Last Colony: The District Columbia Self-Government Act, AM. REV. 537, 600 (1975). compensate for lower local revenues, Congress instituted the
practice paying annual lump sum the District, practice that has continued this day.
Id.; Home Rule Act 501. This lump sum referred the Federal payment. Home Rule
Act 501.
The public funds the District fall into two (2) distinct categories: (1) funds raised
locally through taxes and fees levied against real property, goods, and services within the
jurisdiction the District and not the federal government, and (2) the Federal payment, direct
payment from the federal government the District. Newman DePuy, supra, 591-95
(citing Home Rule Act 302). The Budget Autonomy Act does not seek amend otherwise
Case 1:15-cv-01967-EGS Document Filed 03/21/16 Page
affect the funding process involving the Federal payment. See Budget Autonomy Act 446(a) The federal portion the annual budget shall submitted the Mayor the President for
transmission Congress. Home Rule Act 501; (Council Mem. The
Budget Autonomy Act permits the District spend locally raised funds using the same
legislative procedure that applies all other District legislation. )).
The brute reality that prior passage the Home Rule Act, the District was treated
like federal agency. follows that the funds the District were property belonging the
United States and under the unquestioned control the federal government. Newman
DePuy, supra 539 [T]he Congress for the last century has exercised virtually complete
legislative and fiscal control over the three-quarters million citizens who reside the
nation capital. (footnote omitted); (Council Mem. (citing Metro. R.R.
District Columbia, 132 U.S. 1,7 (1889)). undisputed that regards fiscal matters, the
status the District changed after implementation the Home Rule Act. District Columbia Greater Washington Cent. Labor Council, 442 A.2d 110, 116
(D.C. 1982), cert. denied, 460 U.S. 1016 (1983), the Court Appeals considered and interpreted
the language Section 602(a)(3) the Home Rule Act. The Court Appeals noted that
[a]lthough the [Home Rule Act] does not define the term functions the United States[,]
reasonably may surmised that Congress intended withhold from local officials the
authority affect control decisions made federal officials administering federal laws
that are national scope opposed laws that relate solely the District Columbia. Id.
(emphasis added) (citing D.C. Code 1-233(a)(3) (adopted from Home Rule Act 602(a)(3)).
The plain meaning the language used establishes that the expenditure the District local
Case 1:15-cv-01967-EGS Document Filed 03/21/16 Page
funds are local concern, arising from laws relating solely the District. (Council Mem. 14, 19); see Home Rule Act 602(a)(3).
Following review the statute whole, the Court Appeals noted absurd result obvious injustice this interpretation, stating that [w]e are not persuaded that Congress
intended that performance local function federal officials prior the [Home Rule Act]
would transform the function into function the United States for the purposes [D.C.
Code] 1-233(a)(3) [and Home Rule Act 602(a)(3)]. Greater Washington, 442 A.2d 116.
Finally, looking the legislative history the statute, the Court Appeals further
explained the absence any federal impediment the District use funds raised locally.
Citing congressional records proceedings while the Home Rule Act was committee, the
Court Appeals concluded that [t]he legislative history further suggests that the language was
inserted safeguard the operations the federal government the national level:
The functions reserved the federal level would those related federal operations the District and property held and used the Federal Government for conduct its administrative,
judicial, and legislative operations; and for the monuments
pertaining the nations past. The functions would include
physical planning these federal areas, construction and
maintenance federal buildings, and administration federal
park areas[.]
Id. (citing COMM. THE DISTRICT COLUMBIA, 93D CONG., SESS., D.C. EXECUTIVE
BRANCH PROPOSAL FOR HOME RULE ORGANIC ACT 182 (Comm. Print 1973)) (emphasis added).
Utilizing the principles explained M.M.D. and Greater Washington, federal
authorities appeared have been performing the local function spending the General Fund
prior the Home Rule Act. Congress did not intend that performance local function
federal officials after its passage would transform that function into function the United
States. See Greater Washington, 442 A.2d 116. also clear that the General Fund, which
Case 1:15-cv-01967-EGS Document Filed 03/21/16 Page issue under the Budget Autonomy Act, not the property the United States. See Home
Rule Act 450, 602(a)(3). There neither absurd result, obvious injustice, nor
inconsistency with legislative purpose occasioned this interpretation. See M.M.D., 662
A.2d 846 (citations omitted).
Here, the CFO contention that the District local budget affects national affairs not all persuasive. (See CFO Mem. 39.) The proposition that financing the
District, Congress necessarily faces choice between using revenues from local taxation and
general revenues, i.e., revenues largely derived from the states, most demonstrates that
Congress, making the Federal payment, considers the use funds derived from the fifty
States and other territories. (See id. (citing Banner United States, 428 F.3d 303, 311 (2005)
(per curiam) (citation omitted)).) This analysis has probative bearing the intent
Congress regards the spending the local General Fund.
This Court has received statements from former members Congress who held office
the House Representatives the time drafting and adoption the Home Rule Act. Brief Former Members Congress and Congressional Staffers Amici Curiae ix. This Amicus
filing particularly helpful because gives this Court the rare opportunity for direct insight into
legislative intent.
Amici state that the Charter was meant contain within all the governmental
functions necessary for operating the City Government. Id. (citing District Columbia
Self-Government and Governmental Reorganization: Markup Comm. D.C. H.R.
9056, 93d Cong. 1st Sess. (July 18, 1973) (statement Chairman Adams)) (internal citation
omitted). The District was authorized propose amendments the Charter, creating
ongoing process with facility whereby [the people the District] could continue
Case 1:15-cv-01967-EGS Document Filed 03/21/16 Page
implement and update their charter. Id. (citations omitted). Amici explain that [a]midst fractured political environment, Congress needed appease hardline opponents home rule
concerned both about the amount that the District received federal payment and the
District ability manage its financial affairs. did divorcing these two issues the
Home Rule Act, addressing the federal payment completely outside the Charter[.] Id.
(emphasis added); Home Rule Act 501.
Taking Greater Washington, the plain language the Home Rule Act, and the legislative
history the Home Rule Act together, apparent that Congress separated the Federal
payment from the District local revenues, the latter which were placed the General Fund.
The statute plainly states that the General Fund shall belong the District government[.]
Home Rule Act 450. Records proceedings convened Congress and the text the statute
itself indicate that the legislative purpose the Home Rule Act entrust[] the District with
the management its own affairs, while retaining the power veto the District actions. See
District Columbia Self-Government and Governmental Reorganization: Markup Comm. D.C. H.R. 9056, 93d Cong. 1st Sess. (July 18, 1973) (statement Chairman Adams); see
also Home Rule Act 102; D.C. Code 1-206.02(c)(1). follows that management the General Fund neither federal function nor does
involve federal property. Rather, management the General Fund, including spending the
moneys contained therein, local function that performed local officials. See Home
Rule Act 450; Greater Washington, 442 A.2d 116; Estate Couse, 850 A.2d 308;
Newman Depuy, supra, 562 [T]he District was viewed many instances state
perhaps some unique entity with broad legislative powers.
Case 1:15-cv-01967-EGS Document Filed 03/21/16 Page
Home Rule Act Section 603(a)
Section 603(a) reads:
Nothing this Act shall construed making any change
existing law, regulation, basic procedure and practice relating
the respective roles the Congress, the President, the Federal
Office Management and Budget, and the Comptroller General
the United States the preparation, review, submission,
examination, authorization, and appropriation the total budget
the District Columbia government.
Accepting, arguendo, the premise that the District lacked the authority control the General
Fund prior enactment the Home Rule Act, the CFO contention that the language the
statute does [exclude] budget matters from the Charter-amendment process facially
appealing. (CFO Mem. 13.)
The CFO argument loses luster when considering the language the statute
whole and alternative construct that reveals ambiguity. See M.M.D., 662 A.2d
846. closer look indicates that the statute states [n]othing this Act shall construed
making any change existing law, regulation, basic procedure and practice[.] Home Rule
Act 603(a) (emphasis added). The use the word existing suggests that Section 603(a)
speaks the present tense about the effect (or lack thereof) this Act the law
presented the time the enactment Home Rule Act 603(a) and, implication, does not
preclude future efforts amend the District budgetary process. (Council Mem.
22.) Stated differently, interpretative resolve Section 603(a) commands hard choice between
(1) mere preservation the federal role approving the District budget the time Congress
passed the Home Rule Act 1973, (2) future operation permanent prohibition against
any change the process which the District spends any funds appropriated for its budget.
Case 1:15-cv-01967-EGS Document Filed 03/21/16 Page
The CFO cites the Court Appeal analysis Hessey District Columbia Bd.
Elections Ethics, 601 A.2d (D.C. 1991). The facts underlying Hessey were that citizens
the District were attempting place two voter initiatives the ballot that would impose fees tax surcharges deposited trust funds devoted low and moderate income housing
purposes. Hessey, 601 A.2d The Court Appeals stated that the issue presented was
who charge the District government local financial management, the District
elected officials the electorate initiative. Id.
Hessey facially inapposite. Here, the Government the District Columbia and the
local electorate are pitted against Congress and the federal government; the Budget Autonomy
Act, Act viewed critics expanding the powers the Government the District the
expense the federal government, was placed the ballot the Council and adopted the
electorate overwhelming margin. (Council Mem. 9.); cf. Hessey, 601
A.2d (focusing solely whether the District elected officials its citizens had ultimate
control over local financial management).
Nevertheless, the historical background Home Rule, detailed the Court
Hessey, instructive. The Court Appeals explained that Congress has the power engage
line-by-line review the District budget request the Congressional Appropriations
Subcommittees the District Columbia. Hessey, 601 A.2d (citing COMM. THE
DISTRICT COLUMBIA, 93D CONG., SESS., HOME RULE FOR THE DISTRICT COLUMBIA,
1973-1974, BACKGROUND AND LEGISLATIVE HISTORY H.R. 9056, H.R. 9682, AND RELATED
BILLS 3060 (Comm. Print 1974) (hereafter the Home Rule History )). The Chairman the
House Appropriations Committee Subcommittee the District Columbia maintained that
Congress retains the right review and appropriate the entire District budget, approving
Case 1:15-cv-01967-EGS Document Filed 03/21/16 Page
the necessary Federal payment and passing upon all reprogramming requests. Home Rule
History, 3060 (remarks Congressman William Huston Natcher, Chairman the House
Appropriations Committee Subcommittee the District Columbia, the House
Representatives the Conference Report) (emphasis added). the time that Hessey was decided, approximately twenty-five (25) years ago, the
Federal payment constituted 40-50% the District total budget. See Newman Depuy,
supra, 600-601 (explaining that the purpose the Federal payment compensate the
District for lost property tax revenues due the substantial federal presence the District and
that federal property constituted 41.3% the total value assessed property the District
1973). Today, however, the Federal payment estimated constitute only the District
total budget, with overwhelming source its funding now derived from local taxes and other
revenues. See September 2015 Revenue Estimates, GOVERNMENT THE DISTRICT
COLUMBIA OFFICE THE CHIEF FINANCIAL OFFICER, Sept. 30, 2015 (estimating that the District
raised approximately 6.8 billion dollars local revenues for fiscal year 2015), available
http://cfo.dc.gov/sites/default/files/dc/sites/ocfo/publication/attachments/September%202015%2
0Revenue%20Estimates_09302015.pdf.
The Court Hessey, interpreting the Home Rule Act, noted Congress
contemplation that the District would eventually not dependent the Federal payment:
Congress, while retaining the [Home Rule Act] the pre-home rule procedures for presidential
review and submission for approval Congress the District budget also contemplated
that the financial management system for the District government would improved with selfgovernment. Hessey, 601 A.2d 18-19 (citing Home Rule History 3056-57) (footnote
omitted). follows that Section 603(a) was intended 1973 present tense limitation the
Case 1:15-cv-01967-EGS Document Filed 03/21/16 Page
District ability spend its own funds, evidenced the Home Rule Act complete
legislative history [which] reveals compromise[:] rather than deny the District budget
autonomy for all time, Congress left open the possibility budget autonomy the future,
subject congressional veto right. Brief Former Members Congress and Congressional
Staffers Amici Curiae 29.
Otherwise, Hessey provides conclusive analysis the question bar. Hessey
essentially reiterates the principle that citizens the District, initiative, could create new
office, but could not also fund it. Hessey, 601 A.2d 29. That principle has bearing the
current dispute between the Council, the Mayor, and the CFO vis- -vis the federal government.
See generally Council the Dist. Columbia, Supp. 134. turning the legislative history the Home Rule Act Section 603 and application
the canons statutory interpretation, this Court analysis similar that the District Court.
For example, the District Court states: Congressman Thomas Rees explained during the floor debate
the bill, the budget process the Committee Substitute Bill would
not change the existing budget process for the District:
Really the relationship, this legislation passed, will the same
relationship that Congress now has with the District Columbia
budget, that money can spent the District Columbia.
This was the major compromise that have change all budgetary control when are discussing who will run the budget the District Columbia.
Id. 148-49 (citing 119 CONG. REC. 33390 (Oct. 1973)). Congressman Rees stated that the
Home Rule Act will maintain the same relationship that Congress now has with the District
Columbia budget[.] 119 CONG. REC. 33390 (Oct. 1973) (emphasis added). The use the
qualifier now consistent with the use the term existing the text the Home Rule Act
Case 1:15-cv-01967-EGS Document Filed 03/21/16 Page
itself; Congress intended maintain the status quo for the time being, but did not permanently
foreclose the possibility budget autonomy the future. See Home Rule Act 603(a). further significance the fact that the Home Rule Act does enumerate specific
prohibitions the powers the Council enact legislation, such matters concerning the
National Zoo, but does not include among those restrictions budget autonomy specific
language prohibiting the Council from enacting legislation such the Budget Autonomy Act.
See id. 602(b). The closest language that could viewed specific prohibition Section
602(a)(3), previously discussed. See supra Part II(C)(2)(a) 25-29; Home Rule Act
602(a)(3).
Few principles statutory construction are more compelling than the proposition that
Congress does not intend sub silentio enact statutory language that has earlier discarded
favor other language. INS Cardoza-Fonseca, 480 U.S. 421, 442-43 (1987) (citations
omitted). Congress was presented with the opportunity enact permanent prohibition 1973.
The Nelsen Substitute, proposed Republican Congressman Ancher Nelsen 1973, states:
Notwithstanding any other provision law, unless specifically
authorized directed the Congress, there shall change
made existing laws, regulations, basic procedures and
practices they relate the respective roles the Congress, the
President, the Federal Office Management and Budget the
District Columbia Council, and the Commissioner the
preparation, review, submission and appropriation the total
budget for the District Columbia.
H.R. 10692, 93d Cong. 416 (LH2024). could reasonably argued that the foregoing
proposal had been adopted law, the language there shall change made existing laws would operate both the present and future tense. fact, the House Representatives did
not adopt the Nelsen substitute. (See Council Mem. (citing H.R. 10692, 93d
Case 1:15-cv-01967-EGS Document Filed 03/21/16 Page
Cong. 416 (LH2451-52) (stating that Rep. Nelsen substitute bill was defeated vote
273-144)).)
This Court agrees with the District Court that Section 603(a) operates limitation
the Council. See Council the Dist. Columbia, Supp. 150. The apparent disparity the respective judicial analyses occasioned this Court rejection the CFO
contention, accepted the District Court, that Section 603(a) operates permanent
prohibition the District budget autonomy. This argument once inconsistent with the
legislative purpose and exposes ambiguity statutory language that the court must resolve.
the view this Court, the plain language Section 603(a), specifically the insertion the term
existing, strongly suggests that Section 603(a) merely operated limitation the time the
Home Rule Act passed 1973. Home Rule Act 603(a); see WEBSTER NEW WORLD
DICTIONARY 476 (3rd ed. 1988) (defining existing occur present see also
M.M.D., 662 A.2d 845 (articulating the canons statutory construction).
Review the language the statute whole and the legislative history, specifically
the debate over the Nelsen Substitute, indicates that Section 603(a) clarified that the bill would
not itself change then-existing budgetary practice, but stopped short saying that there
[would] change made some point the future. H.R. 10692, 93d Cong. 416
(LH2451-52) (emphasis added); Home Rule Act 602(b); Brief Former Members
Congress and Congressional Staffers Amici Curiae 20. What Congress contemplated 1973 consistent with the instant factual presentation, namely that (1) the District financial system
has matured substantially the forty years since passage the Home Rule Act, (2) the Council
used the procedures articulated the Home Rule Act pass amendment the Charter
grant local control over local funds, (3) with the tacit approval Congress and (4) consistent
Case 1:15-cv-01967-EGS Document Filed 03/21/16 Page
with Congress intent grant the inhabitants the District Columbia powers local
self-government. Home Rule Act 102(a); (Council Mem. 8.)
The Anti-Deficiency Act and
Home Rule Act Section 603(e)
The Anti-Deficiency Act, codified U.S.C. 1341, bars any officer employee
the Government the District from making authorizing expenditure obligation
exceeding amount available appropriation fund for the expenditure obligation.
The Home Rule Act contains provision that states that [n]othing this Act shall construed affecting the applicability the provisions [of the Anti-Deficiency Act]. Home Rule Act
603(e). The CFO contends that the Budget Autonomy Act inconsistent with the AntiDeficiency Act because would permit the local portion the District budget
appropriated, and funds obligated and expended, pursuant act the Council rather
than Act Congress. (CFO Mem. 33-34.)
This contention relies the premise that the Government the District lacked the
authority enact budget autonomy and amend the Charter remove the need for Congress
pass appropriations act prior spending local funds. See Home Rule Act 446. Insofar
this Court finds that Congress has delegated authority the Council and the Government the
District generally and that the Home Rule Act does not provide for express implied
permanent prohibition the District budget autonomy, the CFO contention must fail. See
supra Part II(C) 16-36. Further, the plain language the Anti-Deficiency Act does not
preclude budget autonomy; this statute merely prohibits expenditure obligation available appropriation fund, without qualifier such appropriation fund from
Congress. See U.S.C. 1341(a)(1)(A). the General Fund merely contains financial
Case 1:15-cv-01967-EGS Document Filed 03/21/16 Page
resources derived from local revenues, the Government the District Columbia able
spend its local revenues held the General Fund without triggering the Anti-Deficiency Act.
III.
CONCLUSION
Congress made clear that the purpose the Home Rule Act grant the citizens the
District the institutions and powers self-governance. was anticipated, control the
District funds was contentious issue and the subject intense negotiations amongst members Congress. The core issue was whether and what extent the local government would able exercise control over local funds. Congress was presented with the opportunity pass
version the Home Rule Act that contained language foreclosing future budget autonomy the
District. That version, the Nelsen Substitute, was resoundly defeated the House
Representatives. 1973, Congress recognized and articulated two distinct sources funding for the
District: (1) the Federal payment, effectively grant from the federal government, and (2) the
General Fund, endowed local taxes and other local revenue sources. enacting the Home
Rule Act, Congress chose maintain the status quo, reserving its then-present authority 1973
but prescribing method for the District amend its Charter obtain budget autonomy the
future. Congress reserved the power have final say over any such amendment. Forty (40)
years later, the Council, the Mayor, and their constituents lawfully exercised their collective
power enact such amendment: the Budget Autonomy Act. The Budget Autonomy Act only
concerns the spending the General Fund, the District financial reserve sourced solely from
local means. Congress was empowered exercise its veto, but declined so.
The Supreme Court has recognized that not appropriate for the judiciary interfere
with the legislature when the latter chooses delegate its authority and responsibilities that
Case 1:15-cv-01967-EGS Document Filed 03/21/16 Page
come with that exercise authority. Congress has chosen delegate its authority and
responsibility over the District affairs distinct local government. This Court unable
interfere with that lawful delegation authority and exercise that delegated authority the
Council, the Mayor, and the citizens the District Columbia.
WHEREFORE, this 18th day March 2016, hereby
ORDERED, that the Motion for Judgment the Pleadings, filed Plaintiff Council
the District Columbia, GRANTED; and further
ORDERED, that the Motion for Judgment the Pleadings, filed Intervenor-Plaintiff
Muriel Bowser, her official capacity Mayor the District Columbia, GRANTED;
and further
ORDERED, that the Cross-Motion for Judgment the Pleadings, filed Defendant
Jeffrey Dewitt, his official capacity Chief Financial Officer the District Columbia, DENIED; and further
ORDERED, that Judgment shall entered favor Plaintiff Council the District
Columbia and Intervenor-Plaintiff Muriel Bowser, her official capacity Mayor the
District Columbia, the Order Judgment issued concurrently herewith; and further
ORDERED, that the Status Hearing currently set for March 23, 2016 VACATED.
_______________________________
BRIAN HOLEMAN
JUDGE
Case 1:15-cv-01967-EGS Document Filed 03/21/16 Page
Copies e-served to:
Karen Dunn, Esquire
Boies, Schiller Flexner LLP
5301 Wisconsin Avenue,
Washington, 20015
Counsel for the Council the District Columbia
Brian Netter, Esquire
Thomas Wolf, Esquire
Breanne Gilpatrick, Esquire
Matthew Waring, Esquire
Mayer Brown LLP
1999 Street,
Washington, 20006
Counsel for the Council the District Columbia
Richard Bress, Esquire
Latham Watkins LLP
555 11th Street,
Washington, 20004
Counsel for Mayor Muriel Bowser
Andrew Saindon, Esquire
Nicholas Bush, Esquire
Office the Attorney General the District Columbia
441 Fourth Street,
Suite 600
Washington, 20015
Counsel for CFO Jeffrey DeWitt
Lawrence Robbins, Esquire
Eric White, Esquire
Robbins, Russell, Englert, Orseck, Untereiner Sauber LLP
1801 Street,
Suite 411
Washington, 20006 Counsel CFO Jeffrey DeWitt
Case 1:15-cv-01967-EGS Document Filed 03/21/16 Page
Exhibit
Case 1:15-cv-01967-EGS Document Filed 03/21/16 Page
GOVERNMENT THE DISTRICT COLUMBIA
OFFICE THE CHIEF FINANCIAL OFFICER
OFFICE TAX AND REVENUE
FOR IMMEDIATE RELEASE
March 18, 2016
CONTACT: David Umansky
(202) 641-6024 (202) 255-9895
STATEMENT CHIEF FINANCIAL OFFICER JEFFREY DEWITT the
SUPERIOR COURT DECISION the BUDGET AUTONOMY ACT
There have been considerable differences opinion about budget autonomy for the
District. Judges, District officials, lawyers advocating for every point view, community
organizations and individual citizens all had different positions the legality the
Budget Autonomy Act. the District Chief Financial Officer, require clarity all financial matters order protect the District financial integrity. For this reason, needed definitive ruling
from the court this matter.
Now that have received direction from Superior Court, the city can develop its
budget independently and not Federal agency.
This ruling will benefit the District many ways, including eliminating the rating
agencies concerns about the impact Federal shutdowns and the historical delays
the Federal budget process. look forward working with the Mayor and Council make this new process efficient
and effective.