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SUPERIOR COURT OF THE DISTRICT OF
COLUMBIA Civil Division Linda W. Cropp, Chairman, et al., Plaintiffs, v. Anthony A. Williams, Mayor, Defendant. Civil Action No. 03-4569 DEFENDANT'S MOTION TO DISMISS THE COMPLAINT, OR IN THE ALTERNATIVE, FOR SUMMARY JUDGMENTMayor Anthony A. Williams, by and through counsel and pursuant to Super. Ct. Civ. P. Rules 12(b)(6) and 56, respectfully moves this Court for an Order dismissing the Complaint against him on the ground that it fails to state a claim for which relief can be granted. In the alternative, he moves this Court for summary judgment, asserting that there are no material facts in dispute and that he is entitled to judgment as a matter of law. As further grounds for this motion, the defendant respectfully asserts that:
For the foregoing reasons, discussed more fully in the attached Supporting Memorandum of Points and Authorities, the defendant respectfully urges the Court to dismiss the Complaint against him with prejudice or to grant summary judgment in his favor. Respectfully submitted, CERTIFICATE OF SERVICEI hereby certify that a copy of the Defendant's Motion to Dismiss, Or, In the Alternative, For Summary Judgment, together with supporting Memorandum and Statement of Undisputed Material Facts and proposed Order, was delivered electronically via email on this 11th day of June, 2003, and a hard copy with the Affidavit of Charles C. Maddox (with attachments thereto) and Exhibits to be delivered by hand on June 12, 2003, to: Charlotte Brookins-Hudson, Esquire Arabella W. Teal SUPERIOR COURT OF THE DISTRICT OF
COLUMBIA Linda W. Cropp, Chairman, et al., Plaintiffs, v. Anthony A. Williams, Mayor, Defendant. Civil Action No. 03-4569 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE DEFENDANT'S MOTION TO DISMISS THE COMPLAINT, OR IN THE ALTERNATIVE, FOR SUMMARY JUDGMENTI. IntroductionA. Procedural History of the CaseOn or about June 4, 2003, the plaintiffs, all members of the Council of the District of Columbia, filed the instant Complaint alleging, inter alia, that Mayor Anthony A. Williams has violated the D.C. Home Rule Act by refusing to enforce three pieces of legislation, collectively described (by plaintiffs) as the "IG Qualifications Laws"1, and by failing to inquire into the qualifications of the incumbent Inspector General for the purpose of determining the current Inspector General's suitability for his position.2 The plaintiffs seek a declaratory judgment that the IG Qualifications Laws are valid and that the Mayor has violated the Home Rule Act by failing to enforce these laws. They also request an order in the nature of a mandamus generally requiring that Mr. Williams enforce the Inspector General Qualifications Emergency Amendment Act of 2003 ("IG Act") as well as the Inspector General Qualifications Temporary Amendment Act of 2003 and the Inspector General Qualifications Amendment Act of 2003 at the conclusion of their respective mandatory Congressional review periods. For the reasons articulated more fully below in this Motion, the Mayor asserts that the Council is without authority, under these circumstances, to pass laws that change the position requirements for the present Inspector General and asks the Court to declare these laws invalid and without force and effect. The Mayor further asserts that the Council's actions are intended to specifically and illegally disqualify the incumbent in this manner, a clear and inappropriate usurpation of the Mayor's executive authority. B. Evidentiary Standards Under Super. Ct. Civ. P. Rules 12(b)(6) and 56A motion to dismiss, pursuant to Super. Ct. Civ. P Rule 12(b)(6), should be granted when it appears that, under any reasonable reading of the complaint, the plaintiff will be unable to prove any set of facts that would justify relief. See, e.g., Conley v. Gibson, 355 U.S. 41, 45 (1957); Haynesworth v. Miller, 261 U.S. App. D.C. 66, 820 F.2d 1245, 1254 (1987). The movant is therefore entitled to judgment if there are no allegations in the complaint which, even if proven, would provide a basis for recovery. Haynesworth, 820 F.2d at 1254. Although the non-moving party enjoys the benefit of all inferences that plausibly can be drawn from well-pleaded allegations of his complaint, bare conclusions of law, or sweeping and unwarranted averments of fact, will not be deemed admitted for purposes of a motion under Rule 12(b)(6). Id. Rather, the court need not accept inferences drawn by plaintiff if such inferences are unsupported by the facts set out in the complaint. Kowal v. MCI Communications Corp., 305 U.S. App. D.C. 60, 16 F.3d 1271, 276 (1994). "Nor must the court accept legal conclusions cast in the form of factual allegations." Id. Likewise, summary judgment must be granted if the moving party demonstrates "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). Although the party moving for summary judgment has the burden of demonstrating the absence of any material facts and the right to judgment as a matter of law, Furguson V. District of Columbia, 629 A.2d 15, 19 (D.C. 1993), the movant is not obligated to present supporting evidence. Instead the moving party need only assert that there is a lack of necessary evidence to support plaintiff's case. At that point the burden shifts to the non-moving party to show the existence of a genuine issue of material fact. Id.; Beard v. Goodyear Tire & Rubber Co., 587 A.2d 195, 198 (D.C. 1991). In other words, the non-moving party must show that a legal theory remains viable under the asserted version of the facts and produce enough evidence to make out a prima facie case in support of the claim. Smith v. Washington Metropolitan Area Transit Authority, 631 A.2d 387, 390 (D.C. 1993). Theoretical speculations, unsupported assumptions, and conclusory allegations do not rise to the level of a genuine issue of fact. Id. Thus, it is clear from the foregoing and the reasons set forth below that plaintiffs' Complaint must be dismissed or in the alternative, summary judgment must be granted in favor of the Mayor. C. Background of the IG Act and the Qualifications of the Incumbent.When Congress enacted FRMAA in 1995, it created the Financial Authority and the Office of the Chief Financial Officer of the District of Columbia - and in Title III of FRMAA, Section 303 (D.C. Official Code Section 2-302.08), it restructured and recreated a vastly expanded Office of the Inspector General of the District of Columbia ("OIG") as one of the pillars of the recovery and reform effort. In Section 303(a)(1)(A)(C) (D.C. Official Code Section 2-302.08 (1)(A)-(C)), Congress explicitly provided for the appointment and removal of the IG by the Mayor as follows:
These provisions established a number of important principles governing the OIG: First, Congress made explicit that the OIG would continue to remain within the executive branch of the District government; Second, Congress provided for appointment of the IG by the Mayor, subject to the approval of the Financial Authority in a control year and with the advice and consent of the Council in a non-control year; and Third, Congress specified that the IG "shall be subject to removal only for cause by the Mayor" (with the approval of the Financial Authority or by the Financial Authority in a control year) and the Mayor alone in a non-control year. Congress went on in Section 303(a)(1)(D) of FRMAA, D.C. Official Code Section 2-302.08(a)(1)(D), to prescribe the qualifications for the IG in detail, as follows:
The present incumbent IG, Charles C. Maddox, was appointed to a 6-year term in 1999, a control year, by the Mayor with the approval of the Financial Authority. He was determined to be filly qualified for appointment under Section 303(a)(1)(D). (A copy of the Mayor's Order appointing Mr. Maddox and the Financial Authority resolution of approval is attached as Exhibit 2). The present year is a non-control year, the Financial Authority having suspended its operations on September 30, 2001, pursuant to FRMAA. As a result, the only applicable, congressionally-approved removal provision governing the IG is that set forth in Section 303(a)(1)(A) -- i.e., "only for cause by the Mayor." In addition, the IG Act seeks to add the following new qualifications as of June 1, 2003 to those enacted by Congress:3 That the IG be a graduate of an accredited law school, be a member in good standing of the D.C. Bar for at least seven years immediately preceding appointment, and have at least seven years experience in the practice of law; or That the IG be licensed as a certified public accountant in the District for at least seven years immediately preceding appointment and have at least seven years aggregate experience in the practice of accounting, tax consulting, or financial consulting; or That the IG hold a CPA certificate from the D.C. Board of Accountancy, be a member of the Greater Washington Society of Certified Public Accountants, and have at least seven years experience in the practice of public accounting. Every one of these provisions exceeds the qualifications for the IG when the incumbent was appointed. And, it is undisputed that the incumbent does not and cannot-satisfy the newly-proposed qualifications in the subject legislation. See attached Affidavit of Charles C. Maddox, ¶12. This factual predicate makes it clear that the Council acted beyond its authority and specifically targeted the incumbent for removal by its legislation. II. The Complaint Should Be Dismissed Because the IG Act Violates the Doctrine of Separation of Powers.The IG Act violates the statutory and constitutional separation of powers doctrine within the District government in much the same manner as the U.S. Constitution ordains for the federal government. Title IV of the Home Rule Act creates the familiar tripartite structure for the District government, patterned on the federal government. See Wilson v. Kelly, 615 A.2d 229, 231 (D.C. 1992). As the Court said in Wilson v. Kelly, supra, 615 A.2d at 231:
Thus, the Home Rule Act, in D.C. Official Code Section 1-203.02, provides that the Council's "legislative power" extends to all "rightful subjects within the District", subject to certain limitations. Of equal importance, the Home Rule Act, in Section 1-204.22, vests the "executive power" of the District of Columbia in the Mayor.4 It, therefore, follows that the U.S. Supreme Court decisions dealing with the separation of powers in the federal government-and specifically with the removal of executive branch officers-are relevant to similar issues arising in the District government. See Wilson v. Kelly, supra, 615 A.2d at 231. ("... it is reasonable to infer from this tripartite structure and the vesting of the respective `power' in each branch that the same general principles should govern the exercise of power in the District of Columbia as are applicable to the three branches of government at the federal level.") It is firmly established that the power to remove an official who performs executive functions is an executive, not a legislative, power. See Myers v. United States, 272 U.S. 52 (1926). Accordingly, the Supreme Court has struck down Acts of Congress in which Congress attempted to involve itself in the removal of executive officials. Bowsher v. Sonar, 478 U.S. 714, 723, 726 (1986) (the Comptroller General, as an officer removable by Congress, may not exercise the executive powers conferred upon him by statute); Myers v. United States, supra (the President had power to remove a postmaster of the first class, without the advice and consent of the Senate as required by Act of Congress). As the Supreme Court stated in Morrison v. Olson, 487 U.S. 654, 689-690 (1988):
State supreme courts have scrutinized the legislature's attempt to change an already-existing office in some way that results in the removal of the incumbent from that office to determine whether the legislature is exercising its legitimate legislative powers or whether it is circumventing the executive's power to remove. For example, in Ahearn v. Bailey, 451 P.2d 30 (Ariz. 1969), the plaintiff was appointed to a three-member commission for a six-year term. About two years into the six-year term, the legislature shortened the term to three years and increased the number of members to five. The Governor re-appointed two of the three original members and appointed three new members to the newly constituted commission. The one original member who was not re-appointed by the Governor challenged the shortening of his term by the legislature as a violation of the separation of powers, and the Arizona Supreme Court agreed. The court quoted from an early removal case decided by the United States Supreme Court that is often cited:
In striking down the attempt to shorten the term, the Ahearn court held that the power to remove is an executive function. The court noted that, although the legislature may prescribe the grounds or causes for removal, it may not "directly undertake to remove a public officer except as granted under the constitutional power of impeachment." Id. at 33. The court rejected the argument that the legislature's power to abolish offices may be exercised at will. It ruled that this power may not be used as "a device to unseat the incumbent, thereby encroaching upon the authority of the executive."5 In Kelley v. Clark, 193 A. 634 (Pa. 1937), a state statute provided that the Civil Service Commission of the City of Philadelphia would consist of three Commissioners elected by the City Council for a four-year term. The state legislature subsequently enacted a statute that abolished this Commission and established a new Commission that would be composed of two members appointed by the Mayor, two members appointed by the City Controllers, and one member elected by these four members. It also provided that the act would become effective immediately. The Pennsylvania Supreme Court ruled: "[t]he acts considered together, as they must be, make it plain that the intention was to oust the commissioners elected by the city council and put in their places commissioners appointed by the mayor, the controllers, and their appointees. There was no intention to abolish the office; language in the [act] that it is abolished is mere subterfuge. The intention to the contrary is too obvious." Id. at 636. While the court acknowledged that an office created by the legislature exists by the will of the legislature and may be abolished at any time,
See also State ex rel.. Hammond v. Maxfield, 132 P.2d 660 (Utah 1943) (legislature may not indirectly circumvent the governor's power to remove). Applying these separation of powers principles that are embodied in the Home Rule Act and in FRMAA to the IG Act - which the Council enacted over the Mayor's veto on April 29, 2003 - it is clear that the Council's attempt to exercise a removal power over an executive branch official of the District government is ineffective. It cannot stand consistent with the tripartite government established by the Home Rule Act, and unlawfully infringes upon the authority of the Mayor to select and remove the IG pursuant to the FRMAA. FRMAA's provisions are carefully crafted and did not provide any role for the Council in the removal of the Inspector General. The FRMAA's provisions with respect to the IG ratify the separation of powers principles in the Home Rule Act. However, Congress could have used FRMAA to create another scheme for the OIG -- e.g., by placing it under the authority of a different branch of the government, putting the OIG under the authority of the Financial Authority, or by giving the Mayor different authority with respect to the IG than the Mayor would ordinarily possess with respect to executive officials. The reality is that Congress did not. And, its disinclination to do so or to fashion a role for the Council in the IG's removal makes it clear this was not its intent. Equally troubling is the Council's attempt to prescribe qualifications for the office of the IG different from and more onerous than those prescribed by Congress in FRMAA and that applied to Mr. Maddox when he was appointed - where these new qualifications are specifically intended to make the incumbent IG ineligible for continued service as IG. Rather than being prospective only in operation, the new qualifications purport to apply to the present incumbent as of June 1, 2003, and to remove him as of that date. Had the Council's IG Act been made prospective only as to the new and more stringent qualifications for the position, it might be open to the plaintiffs to argue that its purpose was not to remove the present incumbent. But the attempt to apply them specifically to the incumbent reveals the Council's intention for what it is - a naked attempt by the legislature to exercise the executive power of removal. The statute is designed to legislate the removal of the incumbent IG from office, an action the Council cannot take under separation of powers principles. Nonetheless, it attempts to do so even where it is undisputed that the incumbent cannot (and could not) meet the new qualifications by June 1, 2003. See attached Affidavit of Charles C. Maddox, ¶12. The fact that the Council passed the bill on an emergency basis also reveals the true intent of the IG Act. If the emergency act was not aimed at removing the incumbent, there would be no need to apply the more stringent qualifications as soon as 10 weeks after its initial enactment. In addition, the Council could have made the new qualifications effective for the next term instead of applying them to the incumbent. Further, in the emergency declaration resolution (R15-66) (attached as Exhibit 3) that justifies taking emergency action, the Council specifically criticizes the incumbent's qualifications and conduct, and then states that:
Section 2(9) of R15-66. The Council concludes that "emergency legislation is required to enable the Office of the Inspector General to raise its standards without subjecting the District government and citizens to further inadequate service." Section 2(10) of R15-66. Since the incumbent is unable to meet the new qualifications by June l, 2003, the only way that the emergency act will achieve the stated goal of not subjecting the District government and its citizens to "further inadequate service" is through the removal of the current IG.6 Under the IG Act, Mr. Maddox's position would be declared vacant as of June 1, 2003, because he does not and cannot meet the Council's newly adopted qualifications. And other provisions of the IG Act further demonstrate how squarely this act is targeted at the incumbent. He would not be permitted to serve in a hold-over capacity after June 1, 2003 until qualification of a successor, although that is the way in which appointed administrative officials whose terms have expired are commonly treated. And the Mayor would not be permitted to designate him to serve on an "acting basis" because he does not meet the qualifications newly prescribed by the Council. The Council's intent to remove Mr. Maddox is further revealed by the fact that the Council added two additional qualification criteria that Mr. Maddox can meet, but the Council did not apply these two new criteria to the incumbent as of June 1, 2003. See Affidavit of Charles C. Maddox, ¶12. Furthermore, as purported "emergency legislation" effective June 1, 2003 - although expiring shortly afterwards - the IG Act is conveniently but purposely structured to avoid the Congressional review process for acts passed by the Council, as only temporary and permanent legislative acts need be submitted for a period of Congressional review before they can become effective. See D.C. Official Code §1206.02(c)(1). Conveniently making June 1, 2003, the purported date of a vacancy in the office of IG -- within the 90-day period to which "emergency" acts are limited - the Council sought to avoid any Congressional review of its action and to present the Mayor, the citizens of the District, and Congress with a fait accompli in the removal of the incumbent. This device-in these circumstances-violates, at a minimum, the spirit of the Home Rule Act in a situation where there is no urgency and no record of malfeasance or misfeasance by the IG that might, under other circumstances, warrant the need for "emergency legislation". A more egregious violation of the allocation of powers between executive and legislative branches in the Home Rule Act and a more far-reaching and complete nullification of the system created by Congress for the Office of the IG can scarcely be imagined. In view of its manifest illegality, the IG Act enacted over the Mayor's veto is unenforceable and void because it runs head-on into this exclusive removal provision. It attempts to effectuate the removal of the current IG from office by act of the Council, not the decision of the Mayor, and without any showing of cause for his removal. Thus, the IG Act can impose no valid obligation of law on the Mayor or any other official of the District government. It is a nullity in the eyes of the law, of no force and effect, and it must be treated as such to preserve the rule of law in the District of Columbia.8 III. This Court Cannot Grant the Relief Sought By PlaintiffsDefendant notes that the plaintiffs have sought the extraordinary remedy of mandamus in this Court without any asserted jurisdictional basis for doing so. In their Complaint, they specifically ask the Court to "Order, in the nature of a mandamus, ...." (Complaint, Prayer for Relief, ¶3) By characterizing it as a "Complaint for Declaratory and Injunctive Relief', plaintiffs seek to avoid what they must tacitly acknowledge as a defect gleaned from their recent and unfortunate experience in the D.C. Court of Appeals, when they inadvertently filed the wrong pleading in the wrong court. Notwithstanding this characterization, the defendant respectfully urges the Court to see this effort for what it plainly is: another futile attempt to obtain a writ of mandamus in a court that -- literally --cannot offer it because that remedy was abolished. See Super. Ct. Civ. P. Rule 81(b). Assuming, arguendo, that a writ of mandamus was available to a litigant as relief, the plaintiffs would not be entitled to it. The authority of this Court to grant that relief is lacking in this court under the decision in Citizens Association of Georgetown vs. Washington, 291 A.2d 699, 703, 705 (D.C. 1972). Moreover, the Complaint and its request for a mandamus violates every principle governing the grant of such writs in this or any other Court. As the Supreme Court has stated: "The common law writ of mandamus ... is intended to provide a remedy for a plaintiff only if he has exhausted all other avenues of relief and if the defendant owes him a clear nondiscretionary duty." Heckler v. Runger, 466 U.S. 602, 615 (1984) (emphasis added). Furthermore, "the remedy of mandamus is a drastic one, to be invoked only in extraordinary situations." Allied Chemical Corp. v. Daiflon, Inc. 449 U.S. 33, 34 (1980); see also Will v. U.S., 389 U.S. 90, 95 (1967). Mandamus is to be utilized only in the clearest and most compelling cases. Cartier v. Secretary of State, 506 F.2d 191, 199, and cases therein cited (D.C. Circuit 1974), cert. denied, 421 U.S. 947. Mandamus jurisdiction can be invoked only when the plaintiff has a clear right to the relief sought, the defendant has a clear duty to perform, and no other adequate remedy is available. Blaney v. United States, 34 F.3d 509, 513 (7a` Cir. 1994). See generally Wright, Law of Federal Courts, at 131 (5th edition 1994). Here, every element of mandamus is lacking. The plaintiffs have not shown and cannot show either a clear right to relief or a non-discretionary, i.e. ministerial, duty owed to them by the Mayor. Moreover, they have plainly failed to exhaust all other avenues of relief, specifically including an action for quo warranto, which is provided for by D.C. law in circumscribed circumstances and under carefully fashioned procedural safeguards. More importantly, the resort to a mandamus action is procedurally defective because it attempts to avoid the method duly provided for in the D.C. Official Code for a civil action of quo warranto to test the legality of officeholding by a public officer of the District of Columbia. D.C. Section 16-3521 provides:
The code lays down specific procedures for the institution of such an action. Section 16-3522 provides:
Section 16-3523 further provides:
None of these procedures has been followed in the present case. Cf. Cartier v. Secretary of State, supra, 506 F.2d at 199-200. Nevertheless, because of the public importance of the issues raised by this case, the defendant must respond to the substance of the petition to show why it should be dismissed on the merits as well as on procedural grounds. As noted above, the appropriate vehicle for plaintiffs' attempt to remove the incumbent IG is through a quo warranto proceeding. The Mayor respectfully refers the Court to a slip opinion, dated December 13, 1977, in the matter captioned District of Columbia v. Tucker, Civil Action No. 5512-77 (Judge Harold Greene). (attached Exhibit 4) While it has limited precedent value as an unpublished opinion, it is extremely helpful in explaining quo warranto proceedings and offers insights into the procedural and substantive requirements that must be considered if a party wishes to prevail. The Tucker matter arose when the Corporation Counsel initiated a quo warranto proceeding on behalf of the District of Columbia and sought to remove Sterling Tucker, the then-Chairman of the Council, for allegedly violating the statutory prohibition against outside employment. Procedurally, the Corporation Counsel filed a petition and a writ was subsequently issued. Mr. Tucker filed his Answer shortly thereafter and the matter was presented to the Court for consideration through cross-motions for summary judgment. Interestingly, the Council was given leave to file an amicus curiae brief and argued that the Corporation Counsel lacked authority to challenge the qualifications of members of the Council, stating that the attempt violated the separation of powers doctrine and the principle of legislative independence. Following an articulate history of the development of the quo warranto proceeding in American jurisprudence, and a brief discussion of the Home Rule Act and its legislative history, the Court framed the relevant questions for analysis and addressed each of them. The Court held that the Home Rule Act does, in fact, prohibit outside employment by the Chairman of the Council and then rejected the District's view that the Court's responsibility ended with that determination. (The city had argued that the Home Rule Act was self-executing and that a writ of quo warranto secured by a public official, once issued, limited the Court's inquiry to whether the defendant Tucker had good title to his position as Chairman of the City Council.) Characterizing a quo warranto proceeding as remedial instead of penal, the Court opined that the harshness of potential sanctions in such cases must be tempered by the equitable concept of judicial discretion. The Court determined that it did, in fact, have the discretion to issue or not to issue a writ and, more importantly, also had the discretion to remove or not to remove the defendant from office. It also concluded that a number of factors, captured under the rubric of "public interest", must be weighed before a determination to oust an official is made. These factors include the equitable doctrine of laches, whether or not the impairment to the title to the office still exists, and even the very nature of the activities in question (for conflict of interest purposes). Ultimately, the Court rejected the District's position by denying its motion for summary judgment and did not remove the Chairman of the City Council from his position. The foregoing clearly shows the procedural and. substantive deficiencies in plaintiffs' position. The only authorized vehicle for what the Council is attempting to do is through a quo warranto proceeding. Assuming that the Council could, in fact, seek a writ of quo warranto, it would have to do so in another context. The incumbent IG would have to be the party/defendant in those proceedings and the Court would have significant discretion in determining both whether to issue the writ and whether to remove the IG even if the writ issued. The specific facts of this case properly amplify the uncertainty the plaintiffs would face in such an undertaking. In any event, there would be no basis for removing Mr. Maddox in reliance on the new qualification standards in the IG Act, which are null and void insofar as they are designed to remove him from office. Thus, it clear that the law, as applied to those facts as well as the procedural and substantive aspects of a quo warranto proceeding, supports the Mayor's position in the instant proceedings. ConclusionFor the reasons stated above, the Council's IG Act must be deemed a nullity as a matter of law. It violates local law and the constitutional doctrine of separation of powers by seeking to change the qualifications for the Inspector General (during his term for the express purpose of ousting him) and to usurp the Mayor's executive authority to remove the incumbent. The IG Act imposes no ministerial duty enforceable by mandamus. The IG Act's provision purporting to require the Mayor to submit a new nomination for IG within 30 days of the occurrence of a vacancy in the office, i.e., within 30 days of June 1, 2003, is equally futile and of no force and effect. There can be no vacancy and the incumbent IG is entitled to continue to hold his office until the expiration of his term, unless removed by the Mayor in accordance with the standards and procedures prescribed by law. Therefore, the Complaint should be dismissed with prejudice or, in the alternative, the Court should grant summary judgment in favor of the defendant. Respectfully submitted, SUPERIOR COURT OF THE DISTRICT OF
COLUMBIA Linda W. Cropp, Chairman, et al., Plaintiffs, v. Anthony A. Williams, Mayor, Defendant. Civil Action No. 03-4569 STATEMENT OF MATERIAL FACTS NOT IN DISPUTE
Respectfully submitted, SUPERIOR COURT OF THE DISTRICT OF
COLUMBIA Linda W. Cropp, Chairman, et al., Plaintiffs, v. Anthony A. Williams, Mayor, Defendant. Civil Action No. 03-4569 ORDERUpon consideration of the motions of the parties, the oppositions thereto, the record in this matter and good cause having been shown, it is this day of June, 2003, ORDERED: that the Defendant's Motion to Dismiss Or In the Alternative, For Summary Judgment is hereby GRANTED; and it is FURTHER ORDERED: that the Mayor is entitled to Summary Judgment in his favor; and it is FURTHER ORDERED: that the Complaint against the Mayor be dismissed with prejudice in its entirety. D.C. Superior Court Judge Cc: Arabella W. Teal Charlotte Brookins-Hudson 1. The Council passed an emergency version of the bill, Bill 15-200, the "Inspector General Qualifications Emergency Amendment Act of 2003", on March 18, 2003. The Mayor vetoed this bill on April 2, 2003, and the Council overrode the veto on April 29, 2003. This bill, now D.C. Act 15-78, became effective on April 29, 2003, and will remain in effect for 90 days. A temporary version of the bill, Bill 15-201, the "Inspector General Qualifications Temporary Act of 2003", was passed by the Council on April 1, 2003. The Mayor vetoed this bill on April 16, 2003, and the Council overrode the veto on April 29, 2003. This bill, now D.C. Act 15-79, is projected to become effective on June 20, 2003, according to the Council's Legislative Services Division. The Council passed the permanent bill, Bill 15-183, the "Inspector General Qualifications Amendment Act of 2003", on May 6, 2003, and the Mayor vetoed this bill on May 16, 2003. The Council overrode this veto, and this bill is now D.C. Act 15-94 and is projected to become effective on July 24, 2003. Copies of the legislation are attached as Exhibit 1. 2. The defendant notes that a substantially similar pleading, described as a Petition for a Writ of Mandamus, was originally filed in the D.C. Court of Appeals on or about June 2, 2003 by the plaintiffs and subsequently withdrawn. 3. The legislation also requires that the IG be appointed with: (1) a minimum of seven years of supervisory and management experience, plus (2) a minimum of seven years of demonstrated experience and ability, in the aggregate, in law, accounting, auditing, financial management analysis, public administration, or investigations. However, these two additional requirements do not apply to the incumbent as of June 1, 2003. 4. It will also be recalled that Section 303(a) of FRMAA establishes the OIG as an agency "within the executive branch of the District government and provides for the IG's appointment and removal only by the Mayor in non-control years like the present. 5. The court stated that the legislature may use its power to create or abolish an office when it serves legitimate reasons of economy or reorganization, such as when the legislature: (1) abolishes an office and no substitute is created; (2) abolishes two or more offices with substantially the same duties or different duties and combines the duties under one office for reasons of economy or genuine reorganization; or (3) abolishes an office and creates a new office that has substantially new, different, or additional function, duties or powers so that it is an office different from the one abolished, even though it also includes the duties of the abolished office. Id. at 35. In other words, the legislature must be exercising its legitimate legislative powers, and not encroaching on the executive power of removal. 6. As the legislative history and the incumbent's attached Affidavit illustrate, it is far from clear that his performance can be fairly criticized as inadequate, thereby reinforcing the proposition that the new qualification standards in the IG Act are designed to remove Mr. Maddox and bear little relationship to a perceived need to improve the qualifications and performance of future IGs. 7. These two criteria include: (1) having a minimum 7 years of supervisory and management experience and, (2) having a minimum of 7 years demonstrated experience and ability, in the aggregate, in law, accounting, auditing, financial management analysis, public administration, or investigations. 8. In addition, if the Court were to order the Mayor to remove Mr. Maddox in this proceeding, it would have the effect of depriving Mr. Maddox of a property interest in his position without due process, given that the IG Act is null insofar as it attempts to remove him by legislative action. Under D.C. Official Code 2-302.08, the IG can only be discharged "for cause" and the U.S. Supreme Court has ruled that "for cause" employees have a property interest in their employment and may not be discharged without notice and an opportunity to be heard. See, e.g., Bishop v. Wood, 426 U.S. 341, 346 n. 8 (1976); Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985).
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