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General Counsel of the District of Columbia, in the 
Superior Court of the District of Columbia, Plantiffs’ Supplemental Memorandum on the Issue of Standing in Support of Motion for Summary Judgment
June 13, 2003




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Civil Division

Linda W. Cropp, Chairman, et al., Plaintiffs, v. Anthony A. Williams, Mayor, Defendant.

Civil Action No. 03-4569
Calendar 12—Judge Campbell


This morning the Court requested that the parties address the issue of standing of Plaintiffs to bring this lawsuit for declaratory and injunctive relief. In response to that request, Plaintiffs, by and through their attorneys, submit the following response.

Preliminary Statement

This lawsuit was brought by the Chairman of the Council and the 12 Members of the Council in their official capacity and as residents and taxpayers of the District of Columbia to enjoin defendant Anthony A. Williams, Mayor of the District of Columbia, from disregarding a duly adopted act of the Council and for a declaration that the IG Qualification Laws are valid.. The Chairman and eleven Members of the Council voted in support of the IG Qualification Laws and voted to override the mayoral veto of these laws. (See, Exhibits 8-10 attached to Plaintiffs' memorandum in support of motion for summary judgment, filed June 11 2003). The Defendant, by letter dated May 30, 2003, to Members of the Council, stated that this law was null and void, that he will not enforce this law, that he had instructed the incumbent to continue in office, and that he had instructed other employees in the executive branch not to acknowledge this law. (Id. Exhibits #I 1 and 12).

Sections 302 and 404 of the Home Rule Act vest the District's legislative power in the elected Council of the District of Columbia. The Council has broad legislative powers which extend "to all rightful subjects of legislation within the District consistent with the Constitution of the United States and the provisions of this Act subject to all the restrictions and limitations imposed upon the States by the 10th section of the 1st article of the Constitution of the United States." D.C. Official Code §1-203.02. These provisions clearly vest in the Council wide latitude to adopt qualification standards for positions as well as to ensure that persons are not being paid when a position is vacant. By nullifying the actions of the Council on the IG Qualifications Laws, the Mayor has violated these Charter rights of these Members of the Council of the District of Columbia.

The policy underlying the basic principles of standing is identified in the following passage from Baker v. Carr, 369 U.S. 186, 204 (1962):

Have the appellants alleged such a personal stake in the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for the illumination of difficult constitutional grounds? This is the gist of the question of standing.

Based on the monies involved in paying the salary of the Inspector General, the fact that the plaintiffs have taken an oath of office to exercise oversight responsibilities over government expenditures, the fact that the Mayor's refusal to execute a law in this case affects the ability of the Council to carry out its responsibility under sections 302 and 404 to the public, and the fact that the Mayor's refusal nullifies legitimate legislative enactments, and for the reasons set forth below, the Plaintiffs have standing to bring this action for declaratory and injunctive relief. 


I. This court has found sufficient standing for a local legislator to bring a similar action.

This lawsuit is very similar to the lawsuit initiated by the Chairman of the Council against the Mayor in the case of Wilson v. Kelly, filed in the Superior Court as Civil Action No. 91-11097.1 Initially, the Chairman of the Council sought declaratory and injunctive relief in that case. The lawsuit arose out of legislation enacted by the Council which required the Mayor to submit, for Council review and approval by resolution, individual contracts, which were in excess of $1 million, entered into by the Mayor for the purchase of goods or services. The Mayor asserted that the legislation exceeded the Council's resolution authority, encroached upon the lawful role of the Mayor, and thereby violated the District's Charters and the principles of separation of powers, based on his claim that the approval of individual contracts is an executive function belonging to the Mayor under sections 422 and 449(b) of the District Charter.

John Wilson, then Chairman of the Council, asserted that the awarding of contracts by the Mayor deprived him as a legislator of his legislative duty as a member of the Council to review contracts, infringed on his rights as a citizen and taxpayer in that the executive was obligating and expending District funds and revenues on contracts which have not been submitted to the Council for review and approval as required by law. That the continued violation of the law by the Mayor was a continuing deprivation of his legislative rights. Injunctive relief was requested as being necessary to prevent the Mayor from continuing to award and perform contracts in excess of $1 million which have not been submitted to the Council for review and approval. Chairman Wilson voluntarily withdrew his complaint for injunctive relief, leaving only the request for declaratory relief because it was his belief that "the Mayor's Counterclaim and the Plaintiff's Answer to the Mayor's Counterclaim adequately framed the issues as to which both parties sought declaratory relief, an thus rendered superfluous the underlying Complaint and Answer." The Chairman of the Council was allowed to proceed with his declaratory relief complaint.

II. Plaintiffs have standing as legislators to challenge executive actions which nullifies valid legislative action because it infringes upon their legislative powers.

Many courts have found standing for legislative challenges to executive action based on the fact that an executive action has "nullified" the votes of legislators. In Coleman v. Miller, 307 U.S. 433, 438 (1939), where legislators voting against a measure sought a writ of mandamus to compel recognition that the measure had not been approved, they were found to have standing based on the fact that legislators "have a plain, direct and adequate interest in maintaining the effectiveness of their votes." Moreover, the court stated that if the legislators were correct on the merits, then their votes were deprived of all validity. The Supreme Court in Raines v. Byrd, 521 U.S. 811, 823 (1997), explained the Coleman case as standing "for the proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative act have standing to ... sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.." In accord, Alaska Legislative Council v. Babbitt, 337 U.S. App. D.C. 41, 181 F.3d 1333 (1999); Campbell v. Clinton, 340 U.S. App. D.C. 149 203 (2000). In Kennedy v. Sampson, 167 U.S. App. D.C. 192, 511 F.2d 430, 435-436 (1974), a senator had standing to bring a suit for declaratory judgment where he challenged executive action which "nullified" the senator's constitutional right to vote to override a piece of legislation. After analyzing the constitutional roles of executive and legislative powers, the court found that the plaintiff's legislative powers had been improperly intruded upon by the executive branch. Id. at 434. (There was no ruling on the request for injunctive relief because the lower court retained jurisdiction to adjudicate the request for injunctive relief in the nature of a mandamus pending the outcome of the appeal. In Chavous v. District of Columbia Financial Responsibility and Management Assistance Authority, 154 F. Supp. 2d 40, 46 (D.D.C. 2001), where plaintiffs Kevin P. Chavous and David A. Catania, Members of the Council, filed an action seeking declaratory and injunctive relief to enjoin the implementation of the contract between the Control Board and Greater Southeast Community Hospital Corporation ("GSE"), because after the Council passed a unanimous resolution rejecting the Control Board's recommendation, and rejected the contract with GSE, they alleged that the Control Board without authority signed the contract with GSE. Councilmembers Chavous and Catania argued that they had standing in their official capacity as legislators, the court found that "Chavous and Catania can properly assert Coleman standing here. Their votes against the contract were more than sufficient to defeat the proposed action. (Citation omitted). Thus, it was not the absence of support which prevented Chavous and Catania from achieving their legislative goal; rather, it was the Control Board's direct override of the Council's authority which had the effect of nullifying their votes ... Councilmembers Chavous and Catania have a `plain, direct and adequate interest in maintaining the effectiveness of their votes (citation omitted) and it is this interest which allegedly has been violated." Id. at 46.

In a state case involving a Councilman in the City of Philadelphia, the lower court dismissed a complaint for declaratory and injunctive relief against the city on the ground that because he had not been "denied his right to vote" that he was not aggrieved by the alleged failure of the Council to follow the Home Rule Charter in adopting legislation. The standing issue was reversed on appeal, with the appellate court finding that "council members individually possess a legal interest in enforcing the voting procedures established by the Charter, and have standing to seek declaratory relief when such procedures are violated. . .Cohen, as an elected, voting member of Council, has a legal and direct interest in ensuring that Council follows the procedures set forth by the Charter, we hold that he does possess standing to bring this case against the City." Cohen v. Rendell, 684 A.2d 1102, 1105 (Pa. Commonwealth 1996). While not directly on point or binding on this court, this case is quite instructive in that it found that legislators, unlike the general public, have a concrete interest in ensuring that the Charter is enforced.

Although the action is styled as brought by the individual members of the Council, it represents the action of the Council as a whole as well. Where the executive branch refuses to enforce a law passed by the legislature, the Supreme Court has recognized that the legislature is the proper party to ensure that the law is carried out. "Congress is the proper party to defend the validity of a statute when an agency of government, as a defendant charged with enforcing the statute, agrees with plaintiffs that the statute is inapplicable or unconstitutional. See Cheng Fan Kwok v. INS, 392 U.S., at 210, n. 9; United States v. Lovett, 328 U.S. 303 (1946)." INS v. Chadha, 462 U.S. 919, 940 (1983).

Here, plaintiffs councilmembers' vote have been nullified by the Mayor's refusal to enforce the IG Qualifications Emergency Amendment Act of 2003 based upon his unilateral determination that it was null and void. In doing so, the Mayor has usurped the proper role of the court and the Council. Because the councilmembers have a "plain, direct and adequate interest in maintaining the effectiveness of their votes" they have standing to pursue this action. Their interest is having the validity of their votes restores. Plaintiffs have been "injured" by the defendant's action, which effectively, nullified their vote on the override of the mayor's veto, in violation of his duty under section 422 of the Home Rule Act.

The Mayor's action, if left unrestrained, would deprive the Council of any meaningful vote.

In sum, the public interest would not be well-served by allowing the Mayor to unilaterally substitute his determination as to what laws can be broken or compromised for the Council's considered judgment as to what qualifications and laws are needed. This nullification of legislative action cannot be sanctioned. This court's intervention is the only way that the proper check can be made on the abuse of executive power.

III. Plaintiffs have standing to bring this lawsuit because they are taxpayers and the payment of the salary of a person who may unlawfully be occupying an office that is vacant affects them as municipal taxpayers.

Plaintiffs have standing as municipal taxpayers to challenge the expenditure of public funds for purposes not authorized by law. Municipal taxpayers, unlike federal taxpayers, have standing to sue whenever, "the challenged activity involves a measurable appropriation or loss of revenue." District of Columbia Common Cause v. District of Columbia, 273 U.S. App. D.C. 137, 858 F.2d 1, 5 (1988). The incumbent IG's salary, which is in excess of $125,000 a year, is a measurable appropriation of the District's revenue. Hence, plaintiffs clearly have taxpayer standing to bring this case.

IV. Quo Warranto relief will not remedy the issues raised in this complaint

Whether it is styled in the "nature of mandamus" or simply injunctive relief, the relief requested is an order requiring the Mayor to comply with the law of the District of Columbia, or to prohibit him from refusing to comply with validly enacted laws, unless and until those laws have been judicially declared invalid. The Council submits that injunctive relief in the nature of mandamus is appropriate in this matter, and that quo warranto is not. The means of "enforcing performance of a clear legal duty in which the public has an interest" is best obtained by a direction or prohibition issued to the person who has refused to comply with the law. Prince v. Klune, 80 U.S. App. D.C. 31, 32, 148 F.2d 18, 19 (1945) (mandamus lies to compel the performance of plain legal duty). It is available where an officer acts in excess of his or her authority or unlawfully withholds an action. See Jackson v. Lynn, 165 U.S. App. D.C. 172, 177, 506 F.2d 233, 238 (1974). The two remedies are generally mutually exclusive. See, e.g., In re Delgado, 140 U.S. 586 (1891) (court rejected the argument that a quo warranto proceeding and not a mandamus proceeding was proper because the proceeding was not brought to try the title to office, but was to compel the probate clerk to properly discharge his duties). The Mayor seeks to characterize the Council action as an attempt to remove the incumbent Inspector General, and advocating that the Council must resort to quo warranto to obtain relief is simply part and parcel of that argument. This is not a removal action. It is an action in which the Mayor has asserted that he has no legal duty to enforce a validly enacted law. Quo warranto will not decide whether the Mayor has a legal duty to enforce a validly enacted law in the absence of a judicial determination.2


For all the foregoing reasons, Plaintiffs request that this court find that the prerequisite standing requirement has been met in this case.

Respectfully submitted,
Charlotte Brookins-Hudson
General Counsel (#954255)
Brian K. Flowers, Deputy General Counsel (#358241)
John Hoellen, Assistant General Counsel (#450354)
Donald Kaufman, Assistant General Counsel (#228718)
Office of the General Counsel Council of the District of Columbia
1350 Pennsylvania Avenue, N.W. - Suite 4 Washington, D.C. 20004 
(202) 724-8026
(202) 724-8129 (facsimile) 

Attorneys for Plaintiffs

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Linda W. Cropp, Chairman, et al., Plaintiffs, v. Anthony A. Williams, Mayor, Defendant. 

Civil Action No. 03-0004569
Calendar #12
(Judge John M. Campbell)


I hereby certify that copies of the foregoing Plaintiffs' Memorandum in Opposition to Defendant's Motion to Dismiss the complaint, or in the Alternative, for Summary Judgment were hand-delivered this 20th day of June, 2003 to the following persons:

Arabella Teal
Assistant Corporation Counsel
1350 Pennsylvania Avenue. N.W. - Suite 409 
Washington, D.C. 20004

Eugene Adams
Acting Principal Deputy Corporation Counsel 
Office of the Corporation Counsel
1350 Pennsylvania Avenue. N.W., - Suite 409 
Washington, D.C. 20004

Charlotte Brookins-Hudson (#954255)
General Counsel
Council of the District of Columbia

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1. 'The appellate court decision can be found at 615 A.2d 229 (D.C. 1992).

2. Although technically abolished, relief in the nature of mandamus remains available. Super.Ct.Civ. Rule 81(b), reads as follows "The writs of scire facias and mandamus are abolished. Relief heretofore available by mandamus or scire facias may be obtained by appropriate action or by appropriate motion under the practice prescribed in these Rules."

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