McReady v. Department of Consumer & Regulatory Affairs

SCHWELB, Associate Judge,

with whom KING, Associate Judge, joins, concurring:

I join Judge King’s opinion for the court. I write separately, however, to explain why McReady’s contention that the Council of the District of Columbia “adopted” a judicial construction of the D.C. FOIA which would entitle him to recover counsel fees in this case is entirely specious.

Contrary to McReady’s position, there is no generalized doctrine that when the Council, in enacting a local law, has borrowed the language of a federal statute, it is presumed also to have approved the statute’s judicial construction even where, as here, there is no evidence that the legislature knew about that construction or intended to adopt it. The actual rule, one of long standing, was more precisely articulated by Justice Story, writing for the Supreme Court almost a century and three quarters ago, as follows:

It is doubtless true, as has been suggested at the bar, that where English statutes ... have been adopted into our own legislation, the known and settled construction of those statutes by courts of law, has been considered as silently incorporated into the acts, or has been received with all the weight of authority.

Pennock & Sellers v. Dialogue, 27 U.S. (2 Pet.) 1, 18 , 7 L.Ed. 327 (1829) (emphasis added).

The emphasized words are critical. Seventy years after Pennock, the Court reiterated the same doctrine, with the same indispensable qualification, in Capital Traction Co. v. Hof, 174 U.S. 1, 36 , 19 S.Ct. 580, 594 , 43 L.Ed. 873 (1899):

By a familiar canon of interpretation, heretofore applied by this court, whenever Congress, in legislating for the District of Columbia, has borrowed from the statutes of a State provisions which had received in that State a known and settled construction before their enactment by Congress, that construction must be deemed to have been adopted by Congress together with the text which it expounded, and the provisions must be construed as they were understood at the time in the State.

(Emphasis added; citations omitted).

Like the Supreme Court, the courts of this jurisdiction apply the presumption which McReady invokes here only in situations where the judicial construction sought to be borrowed is both known and settled. Hartford Accident & Indemnity Co. v. Hoage, 66 App.D.C. 154, 156 , 85 F.2d 411, *617 413 (1936) (quoting Hof); Lenaerts v. District of Columbia Dep’t of Empl. Servs., 545 A.2d 1234, 1238 (D.C.1988); see also In re Adoption of a Minor, 79 U.S.App.D.C. 191 , 194 & n. 9, 144 F.2d 644 , 647 & n. 9 (1944). As this court explained in Lenaerts (quoting, inter alia, Hof and Hoage), the presumption that an interpretation of a statute has been approved by a borrowing legislature “operates only where the judicial interpretation of the existing law is firm,” and therefore applies only to the decisions of courts of last resort. 545 A.2d at 1238 & n. 9 (citations omitted). 1

In the present case, there was no known or settled judicial construction of the federal FOIA for the Council to adopt. With what can most charitably be described as considerable chutzpah, McReady claims that

since, at the time of the enactment of the D.C. FOIA, i.e. March 29, 1992, there was only one federal FOIA [decision] as it applied to pro se plaintiff/attorneys, i.e. Cuneo v. Rumsfeld, [180 U.S.App. D.C. 184, 553 F.2d 1360 (1977)], it must be presumed, as a well established rule of statutory construction, that the D.C. Government intended for the Cuneo principles to be applied to the D.C. FOIA fee shifting provision.

In fact, as Judge King points out in the lead opinion, the Council had adopted the District’s FOIA during the fall of 1976, half a year before March 24, 1977 — the date of the Cuneo decision — and the Mayor signed the legislation on November 19, 1976, four months before Cuneo. 2 Cuneo thus did not exist at all when the District government considered our FOIA, and was certainly not a “known” or “settled” construction of the federal statute.

McReady also relies on Holly v. Acree, 72 F.R.D. 115 (D.D.C.1976), aff'd. mem., 186 U.S.App.D.C. 329 , 569 F.2d 160 (1977). The trial judge’s decision in Holly was issued on September 3, 1976, less than two weeks before the Council’s first reading of the District’s FOIA. There is no indication, however, that the members of the Council knew or could have known about it; Holly was not published in the Federal Rules Decisions until the following year. 3 In any event, the trial court decision in Holly was not issued by a court of last resort, and does not constitute the kind of “firm” or “settled” construction required by our cases if the presumption proposed by McReady is to apply. Lenaerts, supra, 545 A.2d at 1238 .

The question remains whether, even though the Council demonstrably did not adopt Cuneo and Holly in enacting the District’s FOIA, we should nevertheless follow the reasoning of these decisions in construing our statute. See Washington Post Co. v. Minority Business Opportunity Comm’n, 560 A.2d 517 , 521 n. 5 (D.C.1989) (case law interpreting the federal FOIA is to be treated as instructive authority with respect to District’s FOIA). The answer to that question is no; after the Supreme Court’s decision in Kay v. Ehrler, — U.S. -, 111 S.Ct. 1435 , 113 L.Ed.2d 486 (1991), Cuneo and Holly are just about as dead as the proverbial doornail. Although Kay was decided under the Civil Rights Attorney’s Fees Awards Act, 42 U.S.C. § 1988 , and not under the federal FOIA, the Supreme Court unanimously endorsed the reasoning of federal appellate decisions irreconcilable with Cuneo. At -, 111 S.Ct. at 1436-38 . In Cuneo, on the other hand, the court relied heavily on decisions awarding counsel fees in civil *618 rights cases when it ruled favorably to the plaintiff in an FOIA case, see Cuneo, 180 U.S.App.D.C. at 190-91 , 553 F.2d at 1366-67 ; the decision in Kay destroyed the basis for such reliance.

In any event, the Supreme Court’s emphasis on encouraging plaintiffs to employ independent counsel and on discouraging them from representing themselves — Justice Stevens cited with approval the old adage that “a lawyer who represents himself has a fool for a client, see Kay, supra, — U.S. at -, 111 S.Ct. at 1438 — applies to freedom of information cases just as readily as it applies to civil rights disputes. Indeed, one hopes that if McReady had employed counsel with the “detached and objective perspective” contemplated by the Court, id. at -, 111 S.Ct. at 1436 n. 4, the sequence of events relating to the decision in Cuneo and the Council’s consideration of our FOIA would have been set forth with a greater measure of candor in McReady’s presentation to this court.

. The court quoted United States v. Raynor, 302 U.S. 540, 551-52 , 58 S.Ct. 353, 358 , 82 L.Ed. 413 (1938) for the proposition that "[o]ne [circuit court] decision construing an act ... does not approach the dignity of a well settled interpretation”). 545 A.2d at 1238 .

. McReady represents in his brief that "[t]he D.C. FOIA was passed into law effective March 29, 1977.” This is, at best, a half-truth; the District government completed its action regarding the statute in November 1976, and its effective date was delayed to March 29, 1977 only as a result of the required Congressional layover. Unfortunately, McReady’s brief does not reveal this history and is so phrased as to convey the entirely misleading impression that the members of the Council were aware of Cuneo when they passed the FOIA legislation.

.An examination of the relevant volumes of the Daily Washington Law Reporter reveals that Holly was not reported in that publication at all.