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Corporation Counsel, in the
Superior Court of the District of Columbia, 
Defendant’s Supplemental Brief on the Issues of Standing and the Applicability of Quo Warranto to the Instant Proceedings

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



Defendant Anthony A. Williams, by and through counsel and pursuant to the Court's directive, respectfully submits a supplemental brief which addresses the issues of standing and the applicability of quo warranto to the instant proceedings. Specifically, it discusses, at the Court's request, the general question of standing in a constitutional sense and, more specifically, in the context of the quo warranto statute in the District of Columbia, § 16-3521 et seq. of the Official D.C. Code.

In the context of the instant litigation, the question of standing is a relatively straightforward: namely,

(1) does the Council of the District of Columbia ("Council") have standing to bring the lawsuit it has filed; and

(2) does it have standing under the District's quo warranto statute to seek a writ as a "person interested" within the meaning of the statute (in the event that the Corporation Counsel declines to do so at its request). See, §16-3523.

The answers to these specific questions are provided below. However, they raise a more fundamental concern that has already been articulated by the defendant that is, the Mayor's contention, well-supported by applicable law, that the only method by which the Council can seek redress is through the quo warranto proceeding. So, the defendant's brief also discusses the exclusive applicability of the quo warranto statute to these proceeding within the parameters of the Court's request for supplemental pleadings.

I. Available Caselaw Indicates That the Council Does Not Have Standing to Bring the Instant Lawsuit As Pleaded.

Generally, the standing doctrine that is applied in both the federal courts and the local District of Columbia courts involves "a blend of constitutional requirements and prudential considerations."1 Valley Forge Christian Coll. v. Americans United for Separation of Church and State, Inc., 454 U.S. 463, 70 L.Ed. 2d 700, 102 S.Ct. 752 (1982). With respect to the constitutional requirements, the "case or controversy" requirement of Article III of the United States Constitution mandates that a party invoking the federal court's authority show: (1) that he or she has suffered some actual or threatened personal injury as a result of the defendant's putatively illegal conduct, (2) that the injury may fairly be traced to the challenged action, and (3) that a favorable decision will likely redress the injury. Raines v. Byrd, 521 U.S 811, 138 L.Ed.2d 849, 117 S.Ct. 2312 (1997); Valley Forge, 454 U.S. at 472. The Supreme Court explained that "Art. III limit[s] the federal judicial power `to those disputes which confine federal courts to a role consistent with a system of separated powers and which are traditionally thought to be capable of resolution through the judicial process."' Id. (citing Flast v. Cohen, 392 U.S. 83, 97 (1968)).2

In applying the first element above - the personal injury requirement - the Supreme Court has "consistently stressed that a plaintiffs complaint must establish that he has a `personal stake' in the alleged dispute, and that the alleged injury suffered is particularized as to him." Raines, 521 U.S. at 818. In Raines, six members of Congress filed suit challenging the Line Item Veto Act, which gave the President the power to cancel items in certain spending and tax benefit measures. The suit was filed before the President had exercised his cancellation authority, and the Supreme Court attached some importance to the fact that the members were not authorized to represent their respective Houses of Congress in this action. The Supreme Court stated that the members' claim of standing is based on a loss of political power, and not the loss of any private right. The Court held that the members did not have "a sufficient `personal stake' in this dispute and have not alleged a sufficiently concrete injury to have established Article III standing." Id. at 829.

Conversely, in Clinton v. New York, 524 U.S. 417, 141 L.Ed.2d 393, 118 S. Ct. 2091 (1998), the President exercised his cancellation authority and waived, among other things, the Federal Government's statutory right to recoupment of as much as $2.6 billion in taxes that the State of New York had levied against Medicaid providers. The City of New York claimed they had been injured, filed separate actions against the President and other officials challenging the cancellations.

The Supreme Court distinguished the posture of this case from Raines, not only because the President had now exercised his cancellation authority, thereby removing any concern about the ripeness of the dispute, but more importantly because the parties alleged a "personal stake" in having an actual injury redressed rather than an "institutional injury" that is "abstract and widely dispersed." Thus, the Supreme Court found that the plaintiffs did have standing and subsequently struck down the line item veto. Notwithstanding an opposite holding in Clinton, it can easily be distinguished from Raines as it illustrates the stringent standards-even in modem jurisprudence-under which certain plaintiffs (like the Council) can have standing to challenge the executive branch of the government in situations similar to these.

The members of the Council have sued in their official capacity a well as "District residents and taxpayers." It is doubtful, under Raines and Clinton, that the members' institutional and official interest is sufficient to give them standing in the current dispute. The remaining question is whether the members have standing as taxpayers. In Flast v. Cohen, 392 U.S. 83 (1968), the taxpayer--plaintiffs sought to enjoin the expenditure of federal funds under the Elementary and Secondary Education Act of 1965, which they alleged were being used to support religious schools in violation of the Establishment Clause. The Supreme Court developed a two-part test to determine whether the plaintiffs had standing to sue. First, because a taxpayer alleges injury only by virtue of his liability for taxes, the Court held that "a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, §8, of the Constitution." Id. at 102. Second, the Court required the taxpayer to "show that the challenged enactment exceeds [***714] specific constitutional limitations upon the exercise of the taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, §8." Id. at 102-103.

The plaintiffs in Flast satisfied this test because "[their] constitutional challenge [was] made to an exercise by Congress of its power under Art. I, § 8, to spend for the general welfare," id. at 103, and because the Establishment Clause, on which plaintiffs' complaint rested, "operates as a specific constitutional limitation upon the exercise by Congress of the taxing and spending power conferred by Art. I, § 8," id. at 104. However, the Court reaffirmed that the "case or controversy" aspect of standing is unsatisfied "where a taxpayer seeks to employ a federal court as a forum in which to air his generalized grievances about the conduct of government or the allocation of power in the Federal System." Id. at 106.

Unlike Flast, the Council is not alleging any specific constitutional violation, but allege only that the defendant is not enforcing what they believe to be a valid law. This allegation is nothing more than a "generalized grievance about the conduct of government or the allocation of power" in the District government. It is an insufficient basis upon which to obtain standing in this matter. Alternately, the Council's actions, in light of the record of its attempts to remove the incumbent Inspector General, can reasonably be viewed at its attempt to preserve its own political power-another inadequate grounds for having the standing to sue in this instance.

II. Because the District's Quo Warranto Statute Incorporates the Requirement for Standing, the Plaintiff Members of the Council Cannot Obtain a Writ of Quo Warranto Against the Incumbent Inspector General, Charles C. Maddox

We have already concluded that the plaintiff members of the Council lack standing to bring an equitable action for declaratory relief against the Mayor, for the purpose of obtaining ouster of Mr. Maddox as Inspector General. The remaining issue is whether the plaintiffs nevertheless might be able to invoke the legal remedy of quo warranto to obtain such ouster, even if they lack standing in equity. We believe the standing requirement would also apply in a quo warranto proceeding, thus barring them from quo warranto relief.

We need not here restate the provisions of the District's quo warranto statute, D.C. Official Code § 16-3521 et seq. (2001), which are fully set out in the June 11, 2003 memorandum of points and authorities in support of defendant's motion to dismiss the complaint or, in the alternative, for summary judgment. Those provisions afford an adequate remedy at law for qualifying persons to seek the ouster of a public official on the ground that the official lacks lawful title the office he or she holds. It follows that, because an adequate remedy at law exists, equitable relief, including the remedy of a declaratory judgment, should not lie in this case on behalf of any person who qualifies to bring a writ of quo warranto. See, e.g., United States ex rel. Noel v. Carmody, 148 F.2d 684, 685 (D.C. Cir. 1945).

Additionally, in construing District statutory law, courts follow the rule of construction known as "expressio unius est exclusio alterius" (which means that the express provision of one thing should be understood as the exclusion of other related things). Except where there is some strong indication of a contrary legislative intent,

[w]here a form of conduct, the manner of its performance and operation and the persons and things to which it refers are designated, there is an inference that all omissions should be understood as exclusions. `When what is expressed in a statute is creative, and not in a proceeding according to the common law, it is exclusive, and the power exists only to the extent plainly granted. Where a statute creates and regulates, and prescribes the mode and names the parties granted right to invoke its provision, that mode must be followed and none other, and such parties only may act." The method prescribed in a statute for enforcing the rights provided in it is likewise presumed to be exclusive.

See 2A Sutherland Statutory Construction, § 47.23, pp. 216-217 (5th, ed. 1992) citing, inter alia, National Rifle Association v. Potter, 628 F. Supp. 903, 909 (D.D.C. 1986) and McCray v. McGee, 504 A.2d 1128, 1130 (D.C. 1986). Here, while the writ of quo warranto was recognized by the common law before enactment of the District's quo warranto statute, the latter essentially perpetuates the common law remedy. See, e.g. District of Columbia v. Tucker, Super. Ct. D.C. Civil No. 5512-77 (December 13, 1977), 106 Wash. L. Rptr. 41 (January 9, 1978), p. 42. Therefore, the procedures in the District's quo warranto statute should be construed as being the exclusive procedures available at law - as opposed to equity - for seeking and obtaining the ouster of a public official such as the incumbent Inspector General. See also id., 106 Wash. L. Rptr. at 43.

As defendant pointed out in the June 11, 2003 memorandum, the District's quo warranto statute contains a two-step procedure whereby members of the Council could seek the ouster of an appointed District official like Inspector General Maddox. First, they could request the local United States Attorney or the Corporation Counsel to institute a quo warranto proceeding for that purpose, or obtain the consent of one of these officers to sue in their name on relation of the members of the Council. In the seminal decision under the parallel quo warranto statute for removing federal, officials, Newman v. United States ex rel. Frizzell, 238 U.S. 537 (1915), the Supreme Court held that the decision of the named counterpart prosecuting officers there - the United States Attorney General or a United States Attorney, see D.C. Official Code § 16-3501 et seq. - to seek a writ of quo warranto was discretionary and not reviewable by the courts. 238 U.S. at 546. Given the parallel language and structure of the federal and District quo warranto statutes, the decision of the Corporation Counsel not to seek a writ of quo warranto against Mr. Maddox is discretionary and not subject to judicial review.

Under the second step of the District's quo warranto statute, having failed to obtain the consent of the local United States Attorney or the Corporation Counsel for a quo warranto proceeding on relation of the members of the Council, the latter have the option to apply for leave of this Court to issue the writ, which is in the nature of an order to show cause. However, to qualify for such leave of Court, each plaintiff member of the Council must satisfy the express statutory requirement that they be an "interested person."

In Newman, supra, the plaintiff was a taxpayer who instituted quo warranto proceedings against an officer of the District government, seeking the officer's ouster. The trial court had held that the taxpayer was an "interested person" under the predecessor statute, which in relevant particulars is identical to the current quo warranto statute for removing federal officers. On appeal, the Supreme Court reversed, holding that: (1) the taxpayer was not permitted to use the name of the government in quo warranto proceedings; (2) the rule was the same whether the municipal official was elective or appointed; (3) the taxpayer must have a personal interest in the office itself before the taxpayer could seek a writ of quo warranto; and (4) lacking such a personal interest, the taxpayer lacked standing to bring the suit.

The Court in Newman recognized that every citizen and taxpayer is interested in the enforcement of law, and in having only qualified officers execute the law. But the Court also recognized that that general interest is not a private interest but a public one, which can only be vindicated by public law enforcement officers. Id. at 547. The Court noted that, if the general public interest were sufficient to authorize citizens and taxpayers to invoke quo warranto, then a public officer might, from the beginning to the end of his or her term, be harassed with proceedings to try his or her title to office. Id. at 548. See also id. at 546 ("[T]here are so many reasons of public policy against permitting a public officer to be harassed with litigation over his right to hold office, that the [District] Code not only does not authorize a private citizen, on his own motion, to attack the incumbent's title, but it throws obstacles in the way of all such private attacks.") The Newman Court concluded that the only "interest which will justify such a proceeding by a private individual must be more than that of another taxpayer. It must be 'an interest in the office itself and must be peculiar to the applicant.'" Id. at 550. Examples of such an "interest" that the Court identified are (1) a case where the quo warranto plaintiff had been unlawfully ousted from the same position and (2) a case under the civil service law in which this the relator would have an interest. Id. at 551.

The leading local decision construing the quo warranto statute for removal of District officers appears to be United States ex rel. Noel v. Carmody, 148 F.2d 684 (D.C. Cir. 1945). This decision is the main local court decision on which Superior Court Judge Harold Greene relied in District of Columbia v. Tucker, which is cited above. In contrast to the Supreme Court's interpretation in Newman, supra, of the quo warranto statute for removal of federal officers, the U.S. Court of Appeals in Carmody was unwilling - despite the parallel language and structure -- to construe the term "interested person" as narrowly for purposes of the quo warranto statute governing removal of District officers.

Carmody involved a relator whose interest was in removing the person who held the office of President of the Bar Association of the District of Columbia, on the ground that the President's election to that office was in violation of the by-laws of the Association. (The local quo warranto statute governs removal not only of District government officers but also of officers of a private domestic corporation.) The Carmody relator's sole interest was his membership in the Bar Assocation of the District of Columbia. The respondent in Carmody argued that, under the quo warranto statute governing removal of District officers, a court had no jurisdiction to issue a writ of quo warranto against an officer of a private corporation except in a case where the relator himself or herself was seeking the same office, citing the Supreme Court's decision in Newman, supra.

The U.S. Court of Appeals in Carmody disagreed, noting that, to sustain the broad proposition that a writ of quo warranto cannot issue against an officer of a private corporation on complaint of one of its members would leave the members without an effective remedy in most cases of illegal corporate elections. Id. at 684. The U.S. Court of Appeals distinguished Newman on the ground that the latter decision involved merely taxpayers who were suing to vindicate the public interest, whereas in Carmody, the relator was suing to vindicate a specific personal interest as a member of an association. Id. at 685. However, the holding of the Court in Carmody is nevertheless consistent with the holding in Newman that a relator must have a sufficient personal stake to establish the existence of standing. Accordingly, because the plaintiff members of the Council lack standing here to challenge Mr. Maddox's title to the office of Inspector General, they fail to qualify as persons who may invoke the process for obtaining a writ of quo warranto under D.C. Official Code § 16-3521 et seq.


From the foregoing, it is apparent that the Council lacks standing, generally and in the context of the quo warranto statute, to seek to enforce their legislation and remove the incumbent Inspector General from office. However, the defendant acknowledges that this leaves the Council in a difficult position because they appear to be without any judicial recourse. However, it is undeniable that the quo warranto proceeding is the only method available to them to seek redress.

Respectfully submitted, 
Interim Corporation Counsel

Acting Principal Deputy Corporation 
Counsel Office of the Corporation Counsel 
1350 Pennsylvania Avenue, N.W. Suite 409
Washington, DC 20004 
(202) 727-3400
Counsel for Defendant Williams


I hereby certify that a copy of the Defendant's Supplemental Brief On The Issues Of Standing And The Applicability Of Quo Warranto To The Instant Proceedings was delivered electronically via email and by hard copy on this 13th day of June, 2003 to:

Charlotte Brookins-Hudson, Esquire
General Counsel to the Council of the District of Columbia 
1350 Pennsylvania Avenue, N.W. Suite 4
Washington, DC 20004

Arabella W. Teal

1. Although Congress did not establish the local District of Columbia courts under Article III of the Constitution, the D.C. Court of Appeals applies the same constitutional and prudential requirements to its cases, and will look to federal standing jurisprudence in enforcing these requirements. Friends of Tilden Park, Inc. v. District of Columbia, 806 A.2d 1201 (D.C. 2002). 

2. With respect to the prudential considerations that bear on the question of standing, the Supreme Court has held that "the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties." Id. In addition, even when the plaintiff has alleged an injury capable of redress by the courts, the Supreme Court has refrained from adjudicating "abstract questions of wide public significance" which amount to "generalized grievances". Finally, the Supreme Court has required that the plaintiffs complaint fall within "the zone of interests to be protected or regulated by the statute or constitutional guarantee in question. Id. at 475.

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