# Kelly v. Parents United for the District of Columbia Public Schools

> District of Columbia Court of Appeals · May 5, 1994 · 641 A.2d 159

URL: https://www.frixlaw.com/law-library/cases/9698827

## Case

- **Full name:** Sharon Pratt KELLY, Et Al., Appellants/Cross-Appellees, v. PARENTS UNITED FOR THE DISTRICT OF COLUMBIA PUBLIC SCHOOLS, Appellees/Cross-Appellants
- **Court:** District of Columbia Court of Appeals
- **Decided:** May 5, 1994
- **Citations:** 641 A.2d 159; 1994 WL 144663
- **Precedential status:** Published
- **Opinion:** Concurrence by Schwelb
- **Judges:** Ferren, Pryor, Schwelb
- **Cited by:** 15 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Modified on other grounds by Kelly v. Parents United for the District of Columbia Public Schools, 1994 D.C. App. LEXIS 175 (1994).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9698827

## How later opinions describe it (automated extraction)

- affirming permanent injunction and noting that trial court considered "ordering school closures and incarceration with work release for responsible District officials as possible sanctions" when District failed to comply
- applying the Cort test to District of Columbia Public School Nurse Act, D.C.Code § 31-2421 (1993)

## Opinion text

SCHWELB, Associate Judge,
concurring in the result:
I agree with the majority that the Nurse Assignment Act may be enforced by a civil action such as that brought by Parents United. I also agree that the District’s violation of local law did not constitute a denial of property without due process of law, and that Parents United therefore is not entitled to an award of counsel fees. In my opinion, however, the majority’s analysis of the question whether the Act creates a private right of action tends to understate the differences between this ease and the authorities relied on by Parents United, and makes the issue somewhat closer and more complicated than it actually is. I also think it appropriate to explicate more forcefully what I view as the fundamental incompatibility between Parents United’s purported constitutional claim and basic principles of federalism. Accordingly, although I agree with much of what Acting Chief Judge FERREN has written, I join the judgment of the court but not its opinion.
I.
My colleagues would determine whether Parents United has a right to bring a civil action against the District under the Nurse Assignment Act by applying the principles set forth in Cort v. Ask, 422 U.S. 66 , 95 S.Ct. 2080 , 45 L.Ed.2d 26 (1975). Cort and its progeny, however, dealt with statutory enactments different in a critical respect from the *170 legislation before us, and thus presented a somewhat different legal issue from the one that confronts us in this case.
The question in Cort was whether a private litigant had the right to bring a civil action under a federal criminal statute which contained criminal penalties, but which made no provision for civil proceedings to enforce it. Congress having specifically identified the sanction for violations of the statute, namely, criminal punishment, the question was whether an additional and different means of enforcement, namely, the institution of a civil action by an aggrieved party, should be read into the statute by implication. The Court answered that question in the negative, and articulated the standards by which courts should determine whether, where only one mode of enforcement has been explicitly authorized, implicit authorization may be inferred for a second. Cort, 422 U.S. at 78-79 , 95 S.Ct. at 2087-89 .
The cases discussed by the majority which apply the Cort analysis present a question similar to that which arose in Cort. See, e.g., In re D.G., 583 A.2d 160, 166-68 (D.C.1990). In Suter v. Artist M., — U.S. -, 112 S.Ct. 1360 , 118 L.Ed.2d 1 (1992), on which the District relies, Congress had specified the remedy for the failure of a state agency to comply with the federal Adoption Assistance and Child Welfare Act; the Secretary of Health and Human Services was authorized to reduce or eliminate federal financial assistance to a non-complying recipient. Although the Act explicitly stated that federal funds could be terminated and contained no provision for enforcement of the Act by private litigants, the plaintiffs in Suter claimed that they had an implied right to sue under the Act and under 42 U.S.C. § 1983 . Unsurprisingly, they lost.
The reason for the courts’ rejection of claims of implied rights of action in cases like Cort, Suter' and In re D.G. is readily apparent. “[I]t is an elemental canon of statutory construction that where a statute expressly provides a particular remedy, a court must be chary of reading others into it.” Fountain v. Kelly, 630 A.2d 684, 690 (1993) (emphasis added) (quoting Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 19 , 100 S.Ct. 242, 247 , 62 L.Ed.2d 146 (1979)). “Where, as here, the legislature has specified the relief which is appropriate to redress a violation, courts are not authorized to devise different .remedies; expressio unius est ex-clusio alterius.” Mack v. United States, 637 A.2d 430, 433 (D.C.1994) (citations omitted). When the legislature specifies only one mode of enforcement, judges should surely hesitate before holding that there are two or more, lest they intrude into a domain reserved for the legislative branch.
The situation in the present case, on the other hand, is fundamentally different. Unlike the statute at issue in Cort v. Ash, the Nurse Assignment Act makes no provision for criminal penalties. Nor is this case like Suter , for no federal financial assistance is at issue. If the Nurse Assignment Act is violated, Uncle Sam cannot cut off the flow of federal dollars in order to nudge the District into compliance. Accordingly, unless those who are injured by the District’s failure to carry out its responsibilities under the Nurse Assignment Act are permitted to sue the District for redress, the Act is nothing but a cruel hoax — an unenforceable declaration which may look good on paper, but which, having no teeth, accomplishes nothing for those whom it was designed to protect.
Our elected representatives cannot be presumed to have enacted unenforceable legislation. More than two centuries ago, Sir William Blackstone articulated the “general and indisputable rule, that where there is a legal right, there is also a legal remedy, by suit or action at law, whenever that right is invaded.” 3 William Blackstone, COMMENTARIES 23 (1783) (quoted in Franklin v. Gwinnett County Public Schools, — U.S. -, -, 112 S.Ct. 1028, 1033 , 117 L.Ed.2d 208 (1992)). Nineteen years later, Chief Justice Marshall wrote for the Court in Marburg v. Madison, 5 U.S. (1 Cranch) 137, 163 , 2 L.Ed. 60 (1802), that our government
has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.
Only a few weeks ago, we “unhesitatingly” endorsed the “noble” concept as articulated *171 by these eighteenth century legal giants. See Brantley v. District of Columbia, 640 A.2d 181, 185 (D.C.1994).
A right without a remedy is therefore taboo, and the Nurse Assignment Act must be construed accordingly. There being no alternative mode of enforcement, 1 a private right of action must be recognized, or the act is a nullity. It would be unreasonable and, I think, presumptuous for a court to assume that the Council created a right but withheld any remedy. We cannot suppose that our elected representatives merely pretended to address what they viewed as an unacceptable condition — namely, the severe shortage of nurses at public schools and of medical personnel at athletic events — but provided no means to alleviate that condition in reality.
The majority apparently discerns no difference, for analytical purposes, between the Cort line of cases and the present controversy. Yet the critical factor which makes plaintiffs lose cases like Cort and Suter is not present here, whereas the decisive argument which enables Parents United to carry the day in this case was not available to the plaintiffs in Cort or Suter . Where the legislature has specified one remedy, it has implicitly precluded others — this is the teaching of the expressio unius maxim — and it is seldom, if ever, the province of the court to add additional enforcement mechanisms by judicial fiat. Moreover, where a mode of enforcement is provided in the statute, no question arises as to whether the legislature has created a right without a remedy. In such a situation, the answer to the question whether a private right of action was implied is therefore almost always a resounding No!
Where, on the other hand, the legislature has provided no remedy at all, expressio unius does not apply. On the contrary, courts must presume that the legislature did not intend to create a right without a remedy, for an unenforceable law is a statutory eunuch. Where no other sanction or remedy has been provided in a statute, the question whether an aggrieved person may sue to enforce it must therefore be answered in most cases with an emphatic Yes!
The present case falls into the second of these categories. We are dealing with a statute which cannot be enforced at all unless a private right of action is recognized. Although my colleagues hold that the Nurse Assignment Act passed even the rigorous test of Cort v. Ash, Cort is distinguishable and only marginally relevant. In my opinion, the question which ought to have been posed is whether the Council may reasonably be supposed to have created a right, but precluded any remedy whatsoever to vindicate that right. The answer to that question — not a difficult one — is No!
II.
I agree with the majority that Parents United’s Section 1983 2 claim, conceived in order to recover a heap of counsel fees, is lacking in merit. For the most part, I concur in Judge FERREN’s reasoning in Part IV of his opinion. I wish, however, that he would be a bit more emphatic about it, for important values are at stake.
To me, Parents United’s argument comes close to suggesting that whenever a governmental actor violates state or local law in a way that affects a plaintiffs property interest this local transgression becomes — abracada bra; hocus-pocus-fidibus 3 — a federal constitutional violation. While perhaps ingenious, this approach strikes at the roots of federalism, and I think we should identify and firmly reject it. Judge Easterbrook has said it best:
A state ought to follow its law, but to treat a violation of state law as a violation of the Constitution is to make the federal government the enforcer of state law_ Pennhurst [State School & Hospital v. Halderman, 465 U.S. 89, 106 , 104 S.Ct. 900, 911 , 79 L.Ed.2d 67 (1984)] held that federal *172 courts lack the authority to direct state officials to comply with state law. If the alchemist’s wand can transmute a violation of state law into a violation of the constitution, Pennhurst will be for naught, federal enforcement of state law the order of the day.
Archie v. City of Racine, 847 F.2d 1211, 1217 (7th Cir.1988) (en banc) (emphasis added), cert. denied, 489 U.S. 1065 , 109 S.Ct. 1338 , 103 L.Ed.2d 809 (1989). 4
Assuming, for the sake of argument, that the Nurse Assignment Act creates a property interest for Fifth Amendment purposes, I am at a loss to understand on these facts how the plaintiffs were deprived of property without due process of law. They have had an opportunity to be heard at a meaningful time and in a meaningful manner. Armstrong v. Manzo, 380 U.S. 545, 552 , 85 S.Ct. 1187, 1191 , 14 L.Ed.2d 62 (1965). Indeed, they have prevailed, in large part, on their local law claim. By deciding this ease, the courts of the District are giving them all the relief to which they are entitled. There is no constitutional deprivation here.
To rule in Parents United’s favor on its § 1983 claim would be to vindicate judicial alchemy at the expense of federalism and neutral principles of law. The present controversy arises from the District’s violation of a District of Columbia statute. It is a case involving noncompliance with local law. That is all it is. Literally as well as colloquially, we should not make a federal case out of it.
.The Corporation Counsel, as attorney for the District, realistically cannot be expected to enforce the Act by bringing an action in the name of the District to restrain her own client, the District, from violating the Act.
. 42 U.S.C. § 1983 .
. These words are said to be used by sorcerers and conjurers to enhance their accomplishments.
. In the present case, the suit was brought in Superior Court (and not in a federal court as in Archie). Nevertheless, here, as in Archie , the plaintiffs seek to convert a state law violation into a federal constitutional one, and the unfavorable implications for basic principles of federalism are comparable to those in Archie .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9698827. Public record. Not legal advice.