Superior Court Judge John M. Campbell
Order in Civil Action No. 03ca4569
Giving Standing to City Council to sue Mayor in Inspector General case
June 18, 2003

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SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
Civil Division

LINDA W. CROPP, Chairman, et al., Plaintiffs vs. ANTHONY A. WILLIAMS, Mayor, Defendant
Civil Action No. 03ca4569
Judge John M. Campbell
Calendar # 12

ORDER

I asked the parties to brief the question whether the plaintiffs have standing to bring this lawsuit. After considering the briefs, and having heard argument on June 16, 2003, 1 am issuing the following order. In brief, I conclude that the plaintiffs do have standing.

The plaintiffs, who are the 13 members of the D. C. City Council, have sued the Mayor for declaratory and injunctive relief, based on his announced refusal to execute legislation duly enacted by the Council. to order to maintain the suit, they argue that they have what has been called "legislative standing," under a doctrine enunciated by the U. S. Supreme Court and applied by-lower federal courts,, including those in the local federal. circuit. The legislative standing doctrine has never been addressed by our Court of Appeals; nevertheless, because courts in our jurisdiction "look to" federal principles of standing in determining whether a plaintiff is entitled to bring suit, Friends of Tilden Park, Inc., v. District of Columbia, 806 A.2d 1201, 1206-07 (D. C. 2002), the federal doctrine is pertinent here.

The concept of legislative standing was first stated by the Supreme Court in Coleman v Miller, 307 U. S. 433 (1939), and most recently articulated by that Court in Raines v. Byrd, 521 U.S. 811 (1997). Since the Raines decision, the scope and viability of legislative standing has been addressed in several cases within this federal circuit, including Chenoweth v. Clinton, 181 F.3d 112 (D.C. Cir. 1999), cert. denied, 529 U.S. 1012 (2000); Campbell v. Clinton, 203 F.3d 19 (D.C. Cir), cert. denied, 531 U.S. 815 (2000); Chavous v. District of Columbia, 154 F. Supp. 2d 40 (D.D.C. 2001); and Kucinich v. Bush, 236 F. Supp. 2d l (D.D.C. 2002).

It is apparent from these cases that legislative standing has come to be understood as a narrow and sharply limited doctrine. In the Raines case, a group of congressmen had challenged the President's authority under the Line Item Veto Act. They alleged that the power given to the executive to veto part of a law unconstitutionally diminished the institutional power of Congress, and "alter[ed] the legal and practical effects of [their] votes." 521 U.S. at 816. The. Supreme Court, however, held that the plaintiffs lacked standing to sue. Their claimed injury - the diminution of legislative authority, or a shift in the balance of power between the two branches - was "wholly abstract" and too "widely dispersed," id. at 829, to show the kind of "personal, particularized, [and] concrete" injury required by the law of standing, id, at 820. Importantly, and in any event, the President was acting pursuant to legislation passed by the Congress itself Apart from anything else, then, Congress had a political remedy: it could repeal the law.

In Chenoweth v. Clinton, the D.C. Circuit considered legislative standing in light of Raines. Four congressmen challenged the President's use of an executive order to institute an environmental program. They argued that he had unconstitutionally by-passed the legislative process, thereby. depriving them-of their right to participate and vote on legislation, as the Constitution intended. The court rejected the suit on standing grounds, reasoning that they alleged only an "institutional" injury, rather than the nullification of a vote that each had actually cast. 181 F.3d at 114-17. In any event, as in Raines, Congress possessed a legislative remedy, since it could repeal the program with sufficient votes.

In Campbell v. Clinton, 31 congressmen challenged the President's use of American forces as part of NATO's intervention in Kosovo. They argued that he had acted unconstitutionally and illegally, and had ignored Congress' vote against an authorization of force under the War Powers Resolution. The D. C. Circuit, however, concluded that this too was a claim of institutional injury only, based on executive action that allegedly exceeded constitutional and statutory authority. Moreover, Congress had also voted against a bill that would have required all U.S. military participation to cease. Plainly, then, a legislative remedy was open to Congress, which meant that the plaintiffs could not show any particularized or personal injury in the form of votes that had been nullified or negated. 203 F.3d at 21-23.

Most recently, in Kucinich v. Bush, the D.C. District Court considered whether 32 congressman had standing to challenge the President's unilateral withdrawal from the 1972 Anti-Ballistic Missile treaty. The plaintiffs alleged: that the. Constitution required: the President to-seek congressional consent to a treaty withdrawal, and that his action therefore "'deprived [them] of their constitutional right and duty to participate in treaty termination,'" 236 F. Supp. 2d at 6 (quoting the complaint). Again, the court concluded that this sort of claimed institutional injury was too abstract and diffuse under Raines to confer standing on the plaintiffs. Id at 6-11.

Legislative standing, then, does not mean that legislators may sue the executive simply on the ground that the executive branch has exceeded its authority, even by acting illegally or unconstitutionally, or in a way that has in some sense usurped the legislature's authority. It also does not mean that legislators may assert essentially institutional injuries at the hand of the executive branch - such things as diminutions in "power" or "constitutional role" or "right to participate." Rattier, as defined by the Supreme Court iii Raines and by the later decisions of lower courts, it is confined to a specific circumstance: "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." 521 U.S. at 823. The key notion is of a vote that is "completely nullified," which means that it is "deprived of all validity," 521 U.S. at 822, is "overridden and virtually held for naught," id. at 822-23, or is "stripped of its validity," id. at 824.

In other words, legislators asserting "legislative standing" must show that they actually voted a certain way on a measure, that they were victorious in that vote (that is, in enacting or defeating the legislation), but that their legislative act, which would otherwise have taken effect, has been "nullified" by the defendant executive's act or failure to act. In the Chavous case, for example, two D.C. Council members challenges the Financial Control Board's actions in signing a contract that shifted city healthcare services from D.C. General Hospital to Greater Southeast Hospital. The Council had voted unanimously to reject the contract. The plaintiffs claimed that the Board's signing and implementation of the contract, despite the Council's vote, was beyond the Board's authority and violated separation of powers principles. The District Court concluded that the plaintiffs did .have standing under Coleman and Raines. If in. fact, as plaintiffs alleged, the Control Board's authority had expired, then the City Council's vote should have been decisive; the Control Board's action, then, had "completely nullified," Raines, 521 U.S. at 823, the votes of the plaintiffs. 154 F. Supp. at 45-46.

The cases thus make clear that this exacting standard, hedged by separation of powers concerns, must be applied carefully, and presumably will be met in few circumstances. I conclude, however, that this, like the Chavous case, is one such circumstance. Here, the City Council unanimously (with one apparent abstention) voted to enact the legislation in question. When the Mayor exercised his veto, the Council overrode it by a vote of 12 to 1. That vote was "sufficient to ... enact... a specific legislative act." Raines, 521 U.S. at 823. When the Mayor then refused to execute the legislation's requirements, the legislative act of the Council "[did] not go into effect," ibid., resulting in the vote of each Council member who voted for the measure being "completely nullified," "overridden," and "deprived of all validity." Ibid. As the plaintiffs point out, moreover, they have no further legislative recourse.

Whatever the validity of the Mayor's actions, then, I conclude that the City Council members have standing to pursue this action.¹ The case will proceed on the merits.

So Ordered, this 18 day of June, 2003.

John M. Campbell
Associate Judge
Signed In Chambers

Copies mailed to:

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

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

1. My analysis suggest that the one Council member who voted against the veto override may not be a proper plaintiff. I leave it to the parties to suggest whether that individual should be dismissed from the lawsuit.

Superior Court Judge John M. Campbell Order in Civil Action No. 03ca4569 Giving Standing to City Council to sue Mayor in Inspector General case June 18, 2003

ORDER

Superior Court Judge John M. Campbell
Order in Civil Action No. 03ca4569
Giving Standing to City Council to sue Mayor in Inspector General case
June 18, 2003