District of Columbia v. Washington Home Ownership Council, Inc.

MACK, Associate Judge, dissenting,

with whom NEWMAN, Chief Judge and PRYOR, Associate Judge, join:

The language of the Home Rule Act relating to the issue of successive emergency enactments is ambiguous. The legislative history is both meager and inconclusive. Nevertheless, based on this paucity of congressional direction, the majority has construed the Act as a very restrictive grant of legislative power. I submit such a narrow interpretation should only be made when the legislative history compels the conclusion that this was the explicit intent of Congress.

We are concerned here with the statutory construction of a small but vitally important segment of the legislative authority of the District of Columbia Council. There is complete agreement by the parties that a genuine emergency existed necessitating the emergency legislation at issue. We are not therefore faced with a charge of abuse of power. We are asked simply to define the limits of power. Specifically, we are asked to interpret whether the phrase “such act shall be effective for a period of not to exceed ninety days” means only one substantive legislative response per emergency or rather is a temporal limitation on each exercise of legislative power without regard to the substantive terms.

Ordinarily, use of the word “act” in the context of legislation means the exercise of power rather than the content of the legislation. Witness the fact that many statutes of Congress are referenced as Acts — for instance, the “Act of October 15, 1972.” And the language of the statute at issue here simply does not restrict the Council from “acting” where there is a finding of emergency circumstances by two-thirds vote. Accordingly, at the very least one must conclude that the statute is not sufficiently clear to warrant a definitive interpretation without turning to the legislative history. There too, we find only brief and inconclusive mention of the issue of successive emergency enactment from which, I submit, no clear statement of congressional intent is discernible. I am convinced that, under basic principles of statutory construction, the Council’s legislation can, and should, be upheld. Moreover, in view of the context in which this case arises, I believe we are compelled to rule for the District of Columbia when we apply not only rules of statutory construction, but also principles and presumptions attendant to state constitutional interpretations of the gravest nature.

I.

There is a fundamental canon of statutory construction which mandates that if a statute is fairly susceptible of two constructions, one which will give it effect, the other which would defeat it, the former is preferred. Anniston Manufacturing Co. v. Davis, 301 U.S. 337, 351 , 57 S.Ct. 816, 823 , 81 L.Ed. 1143 (1937). Coupled with this canon is the strong presumption in favor of the validity of actions by the legislature (in this case the District Council). Flemming v. Nestor, 363 U.S. 603, 617 , 80 S.Ct. 1367, 1376 , 4 L.Ed.2d 1435 (1960); Cobb v. Bynum, D.C.App., 387 A.2d 1095, 1097 (1978). This presumption attaches not because the *1370 Council has so interpreted its authority, but because it is a legislative body, a coordinate branch whose actions are entitled to great respect.

The purpose of these time-honored principles is to avoid the situation the majority may have wrought here. The determination of legislative intent from a cold record is a difficult, imprecise task. If a court errs in invalidating a legislative act, the error cannot be corrected. The legislature can pass a new statute, but the court’s decision is final as to impact and scope. It is a troubling thought that we, in interpreting an ambiguous statute, may have forever foreclosed operation of a valid act. This is a high price to pay for guessing wrong.

And the statute is ambiguous. The language of the Home Rule Act authorizing 90-day legislation by a two-thirds vote of Council members if “emergency circumstances make it necessary” is susceptible to two interpretations. Looking to the interpretation which would give validity to what the Council has done, the language of the Act can be read as a procedural requirement of a two-thirds vote for each exercise of power throughout an emergency (as opposed to one exercise). Similarly, the meager legislative history relevant to this section can be read to support this construction. 1 Thus Representative Rees’ comments expressing a concern over “hanky-panky” abuse can fairly be construed as indicating that the procedural safeguard of a two-thirds vote was the solution to this potential abuse, rather than a prohibition against dealing with an emergency more than one time. 2

Given the ambiguity in both the statute and its history, the direction which this court should take is clear. Having found nothing in the statutory language or its history to mandate otherwise, and I submit there is nothing there, we should choose the construction that would give effect to the Council’s actions. See United States v. Vuitch, 402 U.S. 62, 70 , 91 S.Ct. 1294, 1298 , 28 L.Ed.2d 601 (1971). Instead, the majority has devised an alternative “solution” (for itself, I might say, as well as the Council). It has concluded that we can all avoid the problem of the “second time around” by requiring the Council to enact emergency legislation using permanent legislative procedures. I suggest that the majority, itself, has engaged in legislating and is treading on dangerous ground.

The proposed “solution” is not a solution at all. It begs the issue. 3 It requires the Council, faced with a crisis, to apply a cumbersome procedure, antithetical to the very nature of emergency responses, which Congress could not have intended. It obliterates the difference between “temporary” and “permanent” since the Council, faced with the impossible duty of forecasting the length of an emergency, will be encouraged *1371 to use the permanent track in all cases. Moreover it places on the District of Columbia Council the burden (which we might heartily applaud but which no other legislative body has had to accept) — the mandate, irrevocable, of being absolutely right, the first time, in proposing a solution.

In arguing the feasibility of its approach, the majority relies on the Council’s regulations, which, of course, were not in effect when the Home Rule Act was passed. It relies, erroneously, on speculative comments by Representative Rees that the “permanent procedures” could be followed if an emergency exceeds 90 days. The fact is that the “permanent procedures” Representative Rees referred to did not include the 30 legislative-day layover for congressional review. The layover provision was added subsequent to the time of the comments by the Congressman. There is no suggestion anywhere in the legislative history that the permanent procedure in the Act as finally passed would be adequate to accommodate continuing emergencies. Absent such a clear statement, we should be very hesitant to impose this construction. The truth of the matter is — and the majority’s disposition confirms this — that we simply do not know whether the Council, even under ideal circumstances, 4 could operate effectively by placing emergency matters on a permanent procedural track. 5

I submit this difficulty could be easily avoided. When a court reaches an impasse in statutory interpretation, it should turn to certain concepts of long standing for guidance. Some of these judicial guidelines are repeated so often as to appear to be “generalities.” Yet, I cannot think of a set of circumstances that demonstrates more graphically the importance of a court’s adherence to such generalities than the present circumstances. Nor can I think of circumstances demonstrating more graphically the folly of devising innovative legislative solutions. The issue here — lost sight of by the majority — is whether the Home Rule Act, as passed by Congress, allows successive emergency enactment. The answer is simple under judicial guidelines — given the circumstances here of ambiguous statutory language, not definitively resolved by the legislative history, we give effect to the challenged enactment. The majority, in refusing to meet the issue head-on, has read something into the Home Rule Act that is not there, 6 contrary to principles of statutory construction. See FTC v. Simplicity Pattern Co., Inc., 360 U.S. 55, 67 , 79 S.Ct. 1005, 1012 , 3 L.Ed.2d 1079 (1959). It has done so without according due weight to the Council’s interpretation of its authority to act under the Act — again contrary to principles of statutory construction. Cf. Udall v. Tallman, 380 U.S. 1, 16 , 85 S.Ct. 792, 801 , 13 L.Ed.2d 616 (1965); Lange v. United States, 143 U.S.App.D.C. 305 . 309, 443 F.2d 720, 724 (1971).

It has acted with only a dim perception of yet another venerable judicial principle: a court must not interpret a statutory provision so as to bring about undesirable or unjust consequences. United States v. American Trucking Associations, Inc., 310 U.S. 534, 543 , 60 S.Ct. 1059, 1063 , 84 L.Ed. 1345 (1940); Quinn v. Butz, 166 U.S.App.D.C. 363, 373 , 510 F.2d 743, 753 (1975). The *1372 potential impact of the majority’s decision today is widespread and the repercussions unknown. 7 The plaintiffs did not challenge the substantive validity of the Council’s legislation. There is no issue here that a genuine, on-going emergency existed. Yet, the majority has accepted the rationale that because such abuses might occur, an issue not factually before the court, Congress could only have intended to mean that any successive act was unlawful. These are separate issues. If the validity of the emergency declaration were challenged here, we might be faced with the question of abuse. We should resist the temptation to hastily respond to perceived abuses in other Council actions (see, e. g., Judge Gallagher’s statement ante at p. 1364) by reading into the Act an absolute prohibition regardless of the merits of the emergency. As a result of this conclusion, the decision will create an untold number of truly aggrieved individuals who have been transacting the business of their lives under now-invalid Council acts. The court’s mandate today gives the Council only 90 days to respond to this concern. Predictably at least one response will entail rushed passage of permanent “temporary” measures, using the court’s “solution,” to buy more time. The court’s decision will have created yet another emergency, forcing the Council to put aside its regular pressing business. These adverse consequences argue strongly for a construction that will uphold the Council’s actions. United States v. Powers, 307 U.S. 214, 217 , 59 S.Ct. 805, 807 , 83 L.Ed. 1245 (1939).

In any task of statutory construction, particularly one as important as is presented here, we must do more than examine the legislative history of the narrow section at issue. Kokoszka v. Belford, 417 U.S. 642, 650 , 94 S.Ct. 2431, 2436 , 41 L.Ed.2d 374 (1974). Acts of Congress must be interpreted in light of the spirit in which they were written and the reasons for enactment. General Service Employees Union v. NLRB, 188 U.S.App.D.C. 119, 124 , 578 F.2d 361, 366 (1978). This court has a duty to favor that interpretation of the Home Rule Act that will make its purpose effective, and avoid one which would make its purpose more difficult to fulfill. See United States v. General Motors Corp., 171 U.S.App.D.C. 27, 45 , 518 F.2d 420, 438 (1975). We should construe ambiguous provisions with reference to the manifest purpose of the Act. Zeigler Coal Co. v. Kleppe, 175 U.S.App.D.C. 371, 381-82 , 536 F.2d 398, 408-09 (1976).

The “core and primary purpose of the Home Rule Act” 8 is to “grant to the inhabitants of the District of Columbia powers of local self-government; . . . and, to the greatest extent possible consistent with the constitutional mandate, relieve Congress of the burden of legislating upon essentially local District matters.” D.C.Code 1978 Supp., § 1-121(a) (emphasis supplied). I would take Congress at its word. 9

II.

I am troubled by a more basic problem with the majority decision. I think the court has been presented with something more than a task of statutory construction. We have been asked to interpret the enactment from which the District derives its governmental existence. I view the problem therefore as one analogous to constitutional interpretation. The District of Co *1373 lumbia Charter forms the basis for all governmental authority in the District. It establishes a three branch system of government with co-equal coordinate departments. The legislative power is “vested in and shall be exercised by the Council” (D.C.Code 1978 Supp., § 1-144(a)), the executive power in the Mayor (D.C.Code 1978 Supp., § 1-162), and the judicial power in the District of Columbia Court of Appeals and Superior Court (D.C.Code 1978 Supp., § 11-431, Appendix). Although some restrictions have been placed over the subject matter on which the Council may legislate, see e. g., Capitol Hill Restoration Society, Inc. v. Moore, D.C.App., 410 A.2d 184 (1979), the powers conferred are not limited in their scope. D.C.Code 1978 Supp., § 1-124.

The legislative history of Home Rule manifests a congressional intent to delegate to the District powers as broad as its own. The House Committee Report, in explaining the Act’s general delegation of legislative powers, noted:

Congress, in legislating for the District, has all the powers of a state legislature, and Congress may delegate to the District government that “full legislative power, subject of course to constitutional limitations to which all lawmaking is subservient and subject also to the power of Congress at any time to revise, alter, or revoke the authority granted.”

Firemen’s Insurance Co. of Washington, D.C. v. Washington, 157 U.S.App.D.C. 320, 324 , 483 F.2d 1323, 1327 (1973) citing District of Columbia v. Thompson Co., 346 U.S. 100, 109 , 73 S.Ct. 1007, 1012 , 97 L.Ed. 1480 (1953); quoted with approval in Staff of the House Committee on the District of Columbia, 93d Cong., 2d Sess., Home Rule for the District of Columbia 1973-1974 at 1448 (Comm. Print 1974). We may accordingly view the Charter as a broad and undefined grant of authority to the Council, similar to the power of a state, and subject only to the specific limitations enumerated in the Act. [D.C.Code 1978 Supp., § 1-126 (Congressional reservation of authority), id., § 1-127 (Congressional action on certain District matters), 1979 Supp., § 1-147 (Limitations regarding specific subject matter), and 1978 Supp., § 47-228 (Budget process — Limitations on borrowing and spending).]

But whether we characterize the District of Columbia as a municipal corporation, a state government, or something uniquely in between, its lawmaking body is entitled to certain presumptions in reviewing its action. The foremost of these is that every lawmaking body is entitled to a presumption in favor of the constitutionality of its actions. McDonald v. Board of Election Commissioners of Chicago, 394 U.S. 802, 809 , 89 S.Ct. 1404, 1408 , 22 L.Ed.2d 739 (1969); Flemming v. Nestor, supra; Monarski v. Alexandrides, 80 Misc.2d 260 , 362 N.Y.S.2d 976, 982 (1974). This principle is based on a view of separation of powers which operates to prevent one branch from encroaching on the powers of another. Union Pacific Railroad Co. v. United States, 99 U.S. 700, 718 , 25 L.Ed. 496, 504 (1879). As a corollary, it is never presumed that a legislative body exceeded its authority or intended to violate the constitution. Anniston Manufacturing Co. v. Davis, supra, 301 U.S. at 351-52 , 57 S.Ct. at 822-23 . Lastly, a general presumption of good faith is attributed to all lawmaking bodies. I think all these presumptions should operate here as we interpret the bounds of the authority within which the Council can function under the Charter.

Placed in this framework, other principles of analysis come into focus in the instant case. Courts should adhere to the principles of judicial restraint when called upon to review the validity of the authority under which a coordinate branch of government acts. Any restriction on broad authority should be read narrowly and no limitations not expressly imposed by Congress should be inferred. The interpretation of its powers by any branch is to be given great respect. United States v. Nixon, 418 U.S. 683, 703 , 94 S.Ct. 3090, 3105 , 41 L.Ed.2d 1039 (1974). Adherence to these principles *1374 is not an abdication of judicial responsibility, but rather a prudent exercise of such authority.

In light of the dictates of these principles, I would view our task as completed once we were assured that the acts in question had met the Charter’s technical requirements: that two-thirds of the Council members had voted in its favor, that it was signed by the Mayor, and that it was substantively valid. The Home Rule Act on its face does not impose any additional limitation. I would not search further for a basis to invalidate the Council’s actions.

I would take this approach because of the “checks” found in the overall legislative process that are a safeguard against potential abuse. The existence of these “checks” provides a persuasive basis from which to conclude that this limited judicial review of another branch’s authority was also Congress’ intent. Each act by the Council requires an absolute two-thirds majority vote, an extraordinary requirement, higher even than the vote required to overturn a mayoral veto. Each act expires automatically after 90 days, requiring that the entire enactment process be reexecuted, including a new two-thirds vote. Each act is subject to judicial review for substantive validity. By its terms, the Charter contains an additional “check” on the possibility of legislative abuse by making emergency enactments subject to mayoral veto. Should there be any remaining doubt, the Act reserves for Congress the power to take any action respecting the District. D.C.Code 1978 Supp., § 1-126. Thus persons aggrieved by successive Council enactments have numerous options to redress their concerns through the political branches of both the District and federal governments. Beyond assuring the substantive validity of an act, there is no need, and indeed I think it unwise, for use to offer yet another forum unless clearly required.

I think one of the consequences of unnecessarily holding that many of the Council’s acts are ultra vires is to undermine the effectiveness of the Council. Until Congress provides us with a clear direction that it intended to limit the Council’s powers in the manner adopted by the majority, I think we should carefully exercise our authority to encourage the development of the responsible and independent government envisioned by the Charter, accountable most directly to the residents of the District.

. We should be most reluctant to draw the restrictive conclusions of the majority from this legislative history. Only two pages out of the almost 4,000 comprising the Home Rule History are devoted to a discussion of successive enactments. Congress simply did not focus its attention on this issue sufficiently to provide us with any reliable guidance.

. The legislative history of the 1978 Amendments to the Home Rule Act also supports this conclusion. In revising the description of the period for congressional review of permanent legislation, note was made of the fact that under the Act as then written, the District was forced “to enact an inordinate amount of temporary (90-day) ‘emergency legislation’ that requires no congressional review.” H.R.Rep. No. 95-1104, 95th Cong., 2d Sess. at 2 (1978). At the same time that Congress amended this legislative layover section (D.C.Code § 1-147(c)(1)), it also amended § l-146(a) — the provision at issue here — without making any change in the emergency procedures. When it is show that an interpretation has been brought to the attention of Congress and not changed by it, it is almost conclusive that the interpretation has congressional approval. Kay v. FCC, 143 U.S.App.D.C. 223, 231-32 , 443 F.2d 638, 646-47 (1970).

. Contrary to the majority’s implicit view, the conclusion that successive emergency enactments are proper under the Home Rule Act does not detract from or negate the need for a permanent legislative process. Both are separate and distinct mechanisms.

. The majority opinion calculates that under ideal circumstances, these permanent “temporary” acts would become law within 71 days. That leaves only an additional 19 days for the less-than ideal snags inherent in any legislative process before the original 90-day emergency act expires. I do not share the majority’s view that this tight schedule is a feasible alternative.

. Most troublesome of all, the majority’s conclusion relies heavily on the provisions in the permanent track for full public review and participation before an enactment becomes final. Yet, later in the opinion the majority suggests that these very procedures for public participation be abbreviated so as to pass emergency measures within 90 days. In an effort to fit the square peg of emergency acts into the round hole of permanent legislation, the majority suggests that the procedures for permanent legislation be altered.

. The majority, in essence, has added a sentence to the statute: “If the emergency lasts longer than 90 days, the procedures for permanent legislation are to be followed.”

. For example, during the pendency of this appeal, the Federal National Mortgage Association cut off any further funding in the District because an increase in the interest ceiling on home mortgages had been enacted by emergency legislation. Although the parties here have identified emergency legislation in effect at the time the case was argued, we do not have before us any indication of more recent actions taken by the Council.

. McIntosh v. Washington, D.C.App., 395 A.2d 744, 753 (1978) quoting D.C.Code 1978 Supp., § 1-121(a).

. See, e. g., Kennedy v. City of Newark, 29 N.J. 178, 186-87 , 148 A.2d 473, 477-78 (1959), where the New Jersey Supreme Court liberally construed powers given municipalities under a home rule act, favoring local action.