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Corporation Counsel, in
Superior Court of the District of Columbia
Defendant’s Memorandum of Points and Authorities in Opposition to Plaintiff’s Motion for Summary Judgment

June 20, 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, respectfully submits his Memorandum of Points and Authorities In Opposition to Plaintiffs’ Motion for Summary Judgment. It is offered in the context of a decision and Order, dated June 18, 2003, in which the Court concluded that plaintiffs’ did have "legislative standing" to bring the instant lawsuit. It is clear from the Court’s ruling and subsequent conference call with counsel that this matter will proceed to a resolution on the merits.

Notwithstanding the Court’s ruling on "legislative standing", there remain several unresolved procedural issues which will be, presumably, addressed by the Court’s ultimate decision on the merits of this case. Specifically, the defendant refers to the applicability of quo warranto proceedings to the plaintiffs’ efforts to remove the incumbent Inspector General (IG) from office prior to the end of his term--and in a manner that conflicts with the statutorily-prescribed and exclusive authority to do so. Thus, the defendant respectfully asserts that a decision on the merits should also prescribe the appropriate method by the plaintiffs should proceed—if, in fact, they are permitted to do so.

Despite the plaintiffs’ assertions—orally and in writing—that the removal of the incumbent IG was incidental to the enactment of the temporary, permanent and emergency versions of what the plaintiffs have described as the "IG Acts", the clear record in this case (including the parties’ Statements of Undisputed Material Facts, the legislative history and other documents) strongly suggests that the IG’s removal was the specific intent of the plaintiffs. As a result, the defendant’s legal analysis here will refute arguments made by the plaintiffs and address the notion of "intent" as it applies to plaintiffs efforts and these proceedings.

It will become apparent that for the reasons set forth below, the plaintiffs position in this matter is untenable and the efforts to oust the incumbent IG should be recognized as such and prohibited. This is particularly so where, as here, plaintiffs’ intent in passing the legislation is questionable and the law severely limiting plaintiffs’ ability to do in this situation is clear.

I. The Mayor Has No Official Duty to Enforce the IG Act, and a Court Order Against Him Will Not Provide the Relief That Plaintiffs Seek

In their June 11, 2003 motion for summary judgment and supporting memorandum, plaintiffs contend that the Mayor has a mandatory legal duty to execute and enforce the Inspector General Qualifications Emergency Amendment Act of 2003 (hereafter the "IG Act") and, after the conclusion of the congressional review period, the identical temporary and permanent versions of that act. See, e.g., p. 2 of Plaintiffs’ Motion for Summary Judgment (hereafter "Plaintiffs’ Motion"); pp. 2 and 10 of the Memorandum of Points and Authorities in Support of Plaintiff’s Motion for Summary Judgment (hereafter "Plaintiffs’ Memorandum"). Specifically, plaintiffs contend that the Mayor has a legal duty to enforce the IG Act insofar as it requires the incumbent Inspector General, Charles C. Maddox, to vacate his office on of June 1, 2003. Ibid. The relief plaintiffs seek against the Mayor is that he be enjoined to "faithfully execute," and enjoined from "refusing to enforce," the IG Act and the related temporary and permanent versions. See p. 2 of Plaintiff’s Motion.

Inherent in these contentions and request for relief are two assumptions. First, that there are discrete steps the Mayor is uniquely in a position to take, and must take, as a matter of law, that will definitely result in Mr. Maddox’s removal. Second, that, absent the taking of such steps by the Mayor, Mr. Maddox will necessarily remain the Inspector General, with no other recourse available to the Council to enforce the IG Act against him. Both of these assumptions are wrong.

The Mayor’s June 11, 2003 memorandum in support of his motion to dismiss the complaint or, in the alternative, for summary judgment, and the next section of this reply, address why the IG Act is null and void insofar as it attempts to remove Mr. Maddox. However, even assuming arguendo the validity of the removal aspect of the Act, the Mayor is the wrong party-defendant, and any court order against him would not yield the relief the plaintiffs seek. A number of considerations support this conclusion.

Pertinent provisions of the IG Act itself show that the removal of the incumbent IG was to be by operation of law. The IG Act adds a new subparagraph (D-i) to the D.C. Procurement Practices Act of 1985 ("PPA"), D.C. Law 6-85, D.C. Official Code § 2-302.08(a)(1) (2001), which, in sub-subparagraph (i), contains the new qualifications standards that Mr. Maddox could not meet – and that the Council knew he could not meet – as of June 1st. Sub-subparagraph (ii) of subparagraph (D-i) then provides:

(ii) Sub-subparagraph (i) of this subparagraph shall apply as of June 1, 2003 and, notwithstanding any other provision of this section or other law, a person who holds the position of Inspector General and who does not meet the requirements of sub-subparagraph (i) of this subparagraph on June 1, 2003 shall not continue to hold the position and the position shall be vacant. (Emphasis added.)

This language clearly expresses the Council’s intent that the incumbent IG’s non-compliance with the new qualifications standards would automatically disqualify him from serving as IG and automatically create a vacancy in the office as of June 1st. The IG Act specifies no role for the Mayor or any other District government official in this process, except the incumbent IG himself.

Mr. Maddox’s failure to comply with the non-continuation provision of the IG Act would provide the basis for plaintiffs to seek a writ of quo warranto against him. Granting such a writ would be in this Court’s discretion to grant, if the U.S. Attorney or the Corporation Counsel declined the plaintiffs’ request to seek such a writ on behalf of the public. This Court noted at the June 16, 2003 oral argument on the issue of plaintiffs’ standing that the key issue in this case – whether the provision in the IG Act to automatically remove Mr. Maddox as of June 1st violates the doctrine of separation-of-powers – would necessarily be decided in a quo warranto suit. We agree. Indeed, such a determination could be made at the initial stage of a quo warranto proceeding, where, even before Mr. Maddox became a party-defendant, the Court must decide whether to exercise its discretion to issue the writ at all. If, as the Mayor argues, the Court were to hold that the incumbent-removal provision of the IG Act violates the doctrine of separation of powers, the Court would be warranted in exercising its discretion not to issue the writ on that ground. If, on the other hand, this Court were to uphold the validity of the IG Act’s incumbent-removal provision, then the Court would be justified in issuing a writ of quo warranto.

Furthermore, if, after considering the factors described in District of Columbia v. Tucker, Super. Ct. D.C. Civil No. 5512-77 December 13, 1977), 106 Wash. L. Rptr. 41 (January 9, 1978), this Court concluded that Mr. Maddox should be ousted from office, the Court would issue a final judgment in that regard against Mr. Maddox. Any such judgment would be binding and enforceable like any other court judgment. Therefore, the Council’s inherent assumption that, absent a Court order requiring the Mayor to take steps to remove the incumbent IG, Mr. Maddox will necessarily remain Inspector General, with no other recourse available to the Council to enforce the relevant provision of the IG Act, is clearly incorrect.

Nor do the plaintiffs articulate what steps they believe the Mayor is uniquely in a position to take, and must take, as a matter of law, that will definitely result in Mr. Maddox’s removal, assuming again that the automatic removal provision of the IG Act is valid and enforceable. The Mayor himself is uncertain what steps the plaintiffs contemplate his taking. As the Mayor argued in his June 13, 2003 supplemental brief, the decision of the local prosecutors to seek a writ of quo warranto against Mr. Maddox is wholly discretionary, but nonetheless, the sole device by which to seek the removal of the IG in this situation.

To the extent the Mayor is the ultimate supervisor who has plenary authority to direct the litigation activities of the Corporation Counsel pursuant to D.C. Official Code § 1-301.111 (2001), such broad discretion necessarily must run to the Mayor as well. There is no basis in law for inferring a mayoral duty to seek, through the Corporation Counsel, a writ of quo warranto against Mr. Maddox. Therefore, absent a mandated duty on his part, the Mayor has not violated any duty to seek such a writ and is not liable in law or equity to be compelled to seek that writ in order to cure a violation.

Plaintiffs’ argument that this Court should compel the Mayor to remove Mr. Maddox from office amounts to a flagrant rewriting of the very statute – the IG Act – that the plaintiffs ask the Court to enforce. Had the Council intended this result, it would certainly have made it clear by including a provision that the Mayor immediately remove Mr. Maddox for non-compliance with the new qualification standards as well as, perhaps, a provision delineating the court remedies, such as a quo warranto action, the Mayor must take in the event Mr. Maddox refused to vacate.

But the Council did not do that. Rather, it left in place, in the same section amended by the IG Act, the provision under which Mr. Maddox remains merely "subject to removal only for cause by the Mayor . . . ." See section 208(a)(1)(A) of the PPA, D.C. Official Code § 2-302.08(a)(1)(A). Like the provision in the District’s quo warranto statute that authorizes the Corporation Counsel to seek the removal of public officeholders, the exercise of the Mayor’s authority to remove for cause under section 208(a)(1)(A) of the PPA is discretionary. Had the intent of section 208(a)(1)(A) been to create an enforceable duty by the Mayor to remove an IG for cause, this provision would have expressly said that. However, it does not.

Under the rule of statutory construction that amendments and repeals by implication are disfavored, section 208(a)(1)(A) remains unchanged, and the Mayor therefore retains wholly discretionary authority to remove Mr. Maddox for cause in accordance with section 208(a)(1)(A), in the event that the automatic removal provision of the IG Act is valid. See, e.g., Morton v. Mancari, 417 U.S. 535, 549 (1974) ("[i]n the absence of some affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is [that] the earlier and later statutes are irreconcilable."); United States v. Borden, 308 U.S. 188, 198 (1939) ("When there are two acts upon the same subject, the rule is to give effect to both if possible."); Luck v. District of Columbia, 617 A.2d 509, 514 (D.C. 1992) (similar). Consequently, there is no legal basis for compelling the Mayor to exercise his authority under section 208(a)(1)(A) in this case.

Plaintiffs’ June 11, 2003 Memorandum cites no provision of statutory law, nor any decisional authority, for their proposition that they may sue the Mayor to enforce the automatic removal provision of the IG Act. The foregoing discussion of the IG Act itself, the District’s quo warranto law, and section 208 of the PPA shows that these provisions afford no basis for plaintiffs’ present action against the Mayor. Plaintiffs’ Memorandum, p. 11, does, however, cite the provision in 422 of the Home Rule Act, D.C. Official Code § 1-204.22, that "The Mayor shall be responsible for the proper execution of all laws relating to the District, and for the proper administration of the affairs of the District coming under his [or her] jurisdiction or control . . . ." Because they cite no other law as giving them an enforceable right of action here, it may be that they are, in fact, relying on section 422 as having created such a right. If that is their claim, however, it is wrong.

We have found no decision of the D.C. Court of Appeals that allows a suit to enforce section 422 against the Mayor. On its face, that section creates no enforceable right of action, public or private, based on non-compliance with its terms. Nor have the plaintiffs carried their burden to show the existence of an enforceable right of action under section 422 by necessary implication based on established canons of statutory construction.

Courts interpreting comparable federal statutes have recognized that there can be no implied right to implement a statutory provision where, as here, the provision is designed for the benefit of the public generally and not for the benefit of a particular entity, person, or group. See, e.g., Suter v. Artist M., 503 U.S. 347, 356-63 (1992); Clifton v. Shafer, 969 F.2d 278, 285 (7th Cir. 1992); Stowell v. Ives, 976 F.2d 65, 69-70 (1st Cir. 1992); Kam Shing Chan v. City of New York, 803 F. Supp. 713, 723 (S.D.N.Y. 1992), aff’d, 1 F.3d 96 (@nd Cir. 1993). Additionally, even if the plaintiffs could carry their burden to show the existence of an implied statutory right, they still would face the impossible burden to demonstrate that Congress affirmatively contemplated judicial enforcement of section 422 when it passed the Home Rule Act. See, e.g., Cort v. Ash, 422 U.S. 66, 82-84 (1975); Resident Council of Allen Parkway Village v. HUD, 980 F.2d 1043, 1053 (5th Cir. 1993); Beard v. Goodyear Tire & Rubber Co., 587 A.2d 195, 203 (D.C. Cir. 1991) (citing Cannon v. University of Chicago, 441 U.S. 677 (1979)). Therefore, section 422 affords the plaintiffs no basis for an enforceable right of action against the Mayor for failing to take some as yet unidentified steps to enforce the automatic removal provision of the IG Act.

That plaintiffs’ lack of an enforceable right or remedy against the Mayor, even assuming arguendo that the automatic removal provision of the IG Act is lawful, is reinforced by the discussion of mandamus on pp. 15-16 of the Mayor’s June 11, 2003 memorandum. Paragraph 3 of plaintiffs’ complaint recognizes that the relief requested against the Mayor is in the nature of mandamus. However, as noted in the Mayor’s memorandum, a writ of mandamus is intended to provide a remedy only if the plaintiff has exhausted all other avenues of relief and if the defendant owes the plaintiff a clear non-discretionary duty. Plaintiffs cannot satisfy this burden of proof either, given that quo warranto remains an unexhausted avenue of relief to them2 and that the plaintiffs have not identified a pertinent non-discretionary duty that the Mayor owes them.3

Despite these critical omissions, plaintiffs’ Memorandum argues, on p. 11, that "[i]f the Mayor was permitted to rely on his position that a perceived separation of powers intrusion allows him to determine which laws are ‘null and of no effect,’ there would be no limits on his powers except those which he imposes on himself." This argument, however, is graphically undermined by the fact that this very lawsuit is the result of efforts by the Mayor to obtain a judicial resolution of the separation-of-powers issue, by the history of resolution of similar executive-legislative jurisdictional issues under the Home Rule Act, and by the court decisions on which Plaintiffs’ Memorandum relies.

First, the Mayor made every reasonable effort to obtain a judicial resolution of this controversy, and his efforts succeeded. Realizing that the difference over the separation-of-powers issue was unbridgeable between the two branches, the Mayor initiated a proposal to the Council to bring a lawsuit so that the courts could decide the issue. The Mayor’s May 30, 2003 letter to the Council, attached to the Plaintiffs’ Memorandum, shows that "the Council [had] rejected [his] timely proposal that [the Mayor and the Council] jointly seek court clarification of this matter, in an appropriate judicial proceeding. I am confident that approach would assure expeditious and fair resolution of our dispute." The Mayor then brought the issue to a head:

Absent the Council’s agreement to pursue a judicial resolution, I am constrained to follow the attached Opinion [of the Corporation Counsel] that the [IG Act] is null and of no effect in regard to Mr. Maddox’s removal. Therefore, in a separate letter today, I have advised Mr. Maddox that he should continue in his office, subject to the terms of his appointment as Inspector General. I have also advised the appropriate departments of the District government to retain Mr. Maddox as a government employee and to maintain him on the government payroll, with his pay to continue pursuant to his appointment."4

This lawsuit, originally improperly filed in the D.C. Court of Appeals and then re-filed in this Court, was the result of the Mayor’s May 30th letter to the Council.

Second, disputes under the District’s Charter over the respective domains of the executive and legislative branches have generally been resolved without need for judicial intervention. To the Mayor’s best knowledge, when such disputes could not be addressed to the mutual satisfaction of the Mayor and the Council, the courts have been asked to resolve them, and neither the executive nor the legislative branch has held unilateral sway.

The other significant dispute of this type resolved by the courts of which the Mayor is aware is Wilson v. Kelly, 120 Wash. L. Rptr. 33 (January 7, 1992), aff’d, 615 A.2d 229 (D.C. 1992). There, the Council had enacted, over the Mayor’s veto, legislation to require certain large executive contracts to be approved by the Council before they could take effect. The Mayor contended that this legislation violated the doctrine of separation-of-powers and refused to submit the designated executive contracts for the Council’s approval. Members of the Council then sued the Mayor, as here, and the courts sided with the Mayor, holding that the Council lacked the requisite authority under the tripartite scheme to impose such a requirement for executive contracts. In that case, unlike here, the Mayor’s action was not even based on a formal Opinion of the Corporation Counsel. But the Mayor’s practical assertion of the executive’s prerogatives was in the public interest, and the Mayor’s efforts to obtain an expedited judicial resolution protected the rule of law in local governance. The courts in Wilson v. Kelly never penalized the Mayor for failing to comply with the Council’s invalid law or for waiting until the Council sued to obtain a judicial resolution. For the same reasons, this Court should reject the plaintiffs’ exaggerated claims of executive law-breaking and their accompanying extreme demands for unprecedented sweeping relief against the Mayor.

Third, as Wilson v. Kelly and the recitation of numerous court decisions on pp. 10-14 of Plaintiffs’ Memorandum show, the third branch of government – the judiciary – is ever vigilant to protect the lawful prerogatives of the other two branches when one of the latter attempts some improper encroachment and a judicially enforceable right exists.

The Mayor wholeheartedly embraces the assertion in the last sentence of Section I of Plaintiffs’ Memorandum that it is his duty to enforce and obey the law, insofar as he has such a duty, not as he decides, but as judicially determined. The Mayor’s conduct to date with respect to the IG Act comports with this principle, and no citizen should doubt his resolve to fully comply with the final decision of the courts in this case.5

This Court should not create a novel right or remedy solely to appease the misguided concerns of the Council as expressed in Plaintiffs’ Memorandum. Accordingly, this Court should deny the plaintiffs’ prayer for relief against the Mayor on the ground that he has no official role to play or any duty to carry out in enforcing the automatic removal provision of the IG Act, even if that provision is valid.

II. Plaintiffs’ Attempts to Change the Qualifications of the Inspector General Position In a Manner that Forces the Incumbent to Vacate the Office Violate the Separation of Powers Doctrine.

In arguing that the legislature has the power to change the professional qualifications for an office that results in the incumbent having to vacate the office before the expiration of the term, plaintiffs appear to rely chiefly on State ex rel. Maloney v. Wells, 112 N.W.2d 601 (S.D. 1961). See Plaintiff’s Motion for Summary Judgment, p. 19. However, for the reasons described below, this case has no relevance to the important separation of powers principle raised in the case at bar.

In Maloney, the incumbent was legally appointed to the state office of Employment Security Commissioner for a term of four years. About one year after her appointment, the legislature amended the law establishing the office. Under the amended law, the office would now be titled the Employment Security Commissioner and Counsel of South Dakota. Significantly, the amendment also expanded the duties of the officeholder by requiring that the officeholder, "in addition to all other duties, shall perform legal services for the Employment Security Department". Id. at 603 (italics added). Concomitant with these new legal responsibilities, the legislature also amended the law to require the officeholder to be a member of the South Dakota State Bar with at least five years of active legal practice.

In relying on this case, plaintiffs conveniently omit the critical fact that the legislature changed the duties of the office, and that this change – performing legal services for the Employment Security Department – was directly related to the new qualifications, which included being a member of the state Bar with at least five years of active legal practice.

The incumbent argued that she continued to have a right to the position of Employment Security Commissioner and refused to vacate that office. The court disagreed – but not because the court concluded that the legislature could change the qualifications for an office that results in the removal of the incumbent without violating separation of powers principles. Indeed, the incumbent in Maloney did not even challenge the amended law on that basis.6 Thus, plaintiffs’ reliance on Maloney is completely misplaced and overreaches the actual ruling.

In addition, it is wholly consistent with available caselaw that the separation of powers argument would not be raised in a case where the legislature abolished an office and then created a new office that performs new functions in addition to the functions of the abolished office. See Ahearn v. Bailey, 451 P.2d 30, 35 (Ariz. 1969)(legislature can use its power to create or abolish an office when it serves legitimate legislative purposes, such as abolishing an office and then creating a new office that includes new functions in addition to the functions of the abolished office).

Plaintiffs also cite to State ex. rel. Hammond v. Maxfield, 132 P. 2d 660 (Utah 1942), in support of their motion. However, this case only lends further support to defendant’s position. In this case, the legislature abolished a commission and created a new commission that performed certain new functions in addition to the functions performed by the abolished commission. The incumbents of the abolished commission challenged their removal, but the court concluded that the new commission was a substantially new office and that the reorganization was bona fide. Id. at 666.

In reaching its ruling, the court, in an extensive discussion, considered the circumstances under which the legislature might circumvent the executive’s power of removal by changing an already existing office in some way that results in the removal of an incumbent. The court stated that:

[i]n the last analysis the power of the legislature to truncate the incumbency of one who has been appointed for a fixed term will be found to depend on the purpose for which it was done. On no other basis can the various concepts of legislative power under constitutional provisions such as ours be reconciled or fitted together with the power given the executive.(emphasis added)

Id. Thus, for example, in considering the legislature’s power to shorten the term of an existing office, the court stated:

it must be done in good faith. If the terms as shortened result in an opportunity to appoint a new officer and appears to be for that purpose, there is grave doubt as to the validity of the act, for in such case the legislature would be in reality removing the incumbent. Unless the power of removal lay with the legislature it would be exceeding its powers.

If the shortening of the term is required to fit into a bona fide scheme of reorganization in order to consolidate offices under one officer or set of officers to take over the duties of another office for the sake of economy or efficiency, we can see no constitutional objection. The loss of office by the incumbent is merely in incident and not the objective of the general scheme…Good faith is the test.

Id. at 664.

The court also considered the legislature’s power to abolish and recreate an office when it results in the removal of an incumbent. The court recognized the legislature’s power to create and abolish an office, but it also recognized that the power to remove an incumbent lies with the executive. The discussion below shows how closely the courts will examine the legislation to discern whether it serves a legitimate legislative purpose or whether it encroaches upon the executive’s power of removal:

In order that the legislature may not circumvent by indirection the governor’s power to remove, the courts have scrutinized the new office set up in the place of the one abolished. If the office is completely abolished and no substitute created nor its duties distributed among other offices, it may be so abolished whatever the motive. (Citations omitted)…

If the newly created office has substantially new, different or additional functions, duties or powers, so that it may be said in fact to create an office different from the one abolished, even though it embraces all or some of the duties of the old office it will be considered as an abolition of one office and the creation of a new or different one. The same is true if one office is abolished and its duties, for reasons of economy are given to an existing office or officer. (Citations omitted).

But if the functions, duties and powers are substantially those of the office abolished, the abolition will be considered merely colorable and the pretended new office be considered in actuality a continuation of the old one. Consequently, where one office is purported to be abolished and a new office purported to be set up the courts will examine the entire transaction for purpose or motive. (Citations omitted). If the function, duties or powers are substantially the same it will be a strong indication that the purpose was to abolish the officer and not the office, but where offices are abolished and new ones set up in a general scheme of reorganization, abolition, merger, rearrangement or consolidation genuinely based on reasons of economy or efficiency, the court, if convinced that the purpose was that, will not interfere even though officers in the affected reorganization evolve with some offices whose functions, duties, or powers are substantially like those which were abolished. It is essentially a matter of good faith. (Citations omitted).

Id. at 663-664.7

If, as the caselaw above suggest, legislative intent is a vital consideration for the courts in determining the legality of enactment that remove an incumbent, serious attention must paid to the Council’s motives in this instance. In scrutinizing the Inspector General Qualifications Emergency Amendment Act, it cannot, by any reasonable reading, be considered a bona fide scheme of reorganization of the Office of the Inspector General. It does not consolidate any offices for the sake of economy or efficiency, nor does it change--in any way--the duties, powers or functions of the Office of the Inspector General. Rather, it simply imposes stringent, new qualifications for the IG position and applies them directly to the incumbent.

Additionally, the legislation also precludes Mr. Maddox from serving in a hold-over capacity after June 1, 2003 and precludes the Mayor from appointing him to serve on an "acting basis" until the Mayor can find someone who does meet the new qualifications. Under these circumstances, it is clear that the Council’s actions are not justified by, or directly related to, any expansion in the IG’s duties or to any bona fide reorganization of the office.

As implied above, the true intent of the legislation is apparent–its purpose is to remove the IG in the middle of his term because the plaintiffs are not satisfied with his job performance. While plaintiffs argue, as they must, that Mr. Maddox’s removal is an "incidental" effect of this legislation, their motion and the factual predicate for the Council’s actions reveal that the desire to remove Mr. Maddox was its actual purpose. See Plaintiff’s Motion, p. 25 ("the Council had determined…that the incumbent Inspector General was not performing capably"). Plaintiffs further state that, if the Council had granted an exemption from the new qualification requirements to the incumbent, "the Council, by definition, would be allowing a person it considers unqualified to continue to hold office". Id.

As noted above, plaintiffs have argued, both in their Motion for Summary Judgment and in oral argument before this Court, that removal of the incumbent Inspector General was not the purpose of the legislation at issue, and is only an "incidental effect" of that legislation. Pl. Motion, at 18-21. Their disinclination to characterize this legislation as primarily an attempt to remove the incumbent (and, thus, to the idea that this action should be more properly styled as a request for a writ quo warranto)--even in the face of the Mayor’s concession that the Council has authority to legislate the qualifications required of future nominees for the position of Inspector General—makes the Council’s arguments even more unpersuasive, and perhaps a bit disingenuous. In this instance, it is clear from the record of the Council’s actions that both the purpose and effect of the Qualifications Amendment Act was to remove a specific office holder: the present incumbent.

Plaintiffs’ urgings to the Court that it defer to their judgment in enacting the IG Act and acknowledge their good faith in the legislative actions they have taken is not supported by the record in this matter. And, since plaintiffs themselves have raised the issue of good faith and since the legal authorities demand that the Court make such an analysis in determining the legitimacy of the legislation at issue, defendant respectfully directs the Court’s attention both to the Committee Report (Attached hereto as Exhibit __1) concerning the Act, and to the history of increasingly strained relations between the Council and the incumbent IG.

Plaintiffs’ Motion, at 21-23, attempts to set forth the rationales for each of the new qualifications contained in the Qualifications Amendment Act. While the explanations offered seem sensible, plaintiffs’ recitation fails to cite to anything in its own legislative record in support of these arguments. Nor have plaintiffs attached the Committee Report to any of their filings in the case at bar. This is possibly because support for the Council’s "good faith" is absent from this record.

Rather, the Committee Report contains a series of concerns about the manner in which the present Inspector General conducted some of his investigations and one allegation (specifically refuted by the IG) that the Inspector General has failed to investigate a matter referred to him. (Committee Report.)

For example, the "Committee Reasoning" section of the Committee Report, at pp. 6-9, does not explain how it (the Committee) concludes that the particular standards adopted in the Qualifications Amendment Act will address the alleged deficiencies of the present incumbent’s performance or even the Office of the Inspector General as a whole. Rather, the "Reasoning" section concentrates on reiterating the alleged deficiencies of the incumbent:

After encountering numerous troubling issues with respect to the performance of the current Inspector General – issues which prompted a unanimous vote of "no confidence" from the Council – it was deemed necessary to set forth minimum standards for continued and future employment in that capacity.

Committee Report, at 6.

The "Reasoning" section of the Committee Report goes on to state, at p. 7:

[t]he six-year term of office and removal provisions of the 1995 Act will remain in place with the passage of the "Inspector General Qualifications Amendment Act of 2003" although the bill will apply to the current Inspector General. The legislation serves to enhance the position of the Inspector General by making sure that the individual holding the job is equipped with the skills to do the job effectively. Any executive level position in the government or private sector can be expected to have similar enumerated standards designed to attract the most qualified, desirable candidates who are best able to fulfill the responsibilities of the position.

These statements perhaps signal a tacit and belated acknowledgment that some rationale for the sudden pressing need to change the qualifications for the position of Inspector General is necessary to support the legitimacy of the legislation. However, there was absolutely no discussion with witnesses at the public hearing, or anything else in the legislative record to support the notion either that the performance of the Inspector General himself, or of his Office as a whole, is deficient when compared to rational, disinterested performance standards.

It can reasonably be expected that some of those whose behavior has been scrutinized by the Inspector General may harbor resentment against either him or his staff, and that those persons may try to affect either the outcome of those investigations or the reactions of others to the results of the investigations by raising complaints about the proceedings to those whom they perceive to be sympathetic. Although these feelings may be predictable human nature, it cannot be fairly argued that such persons provide a disinterested view of the actions in question--nor can they be said to possess any special expertise in the functions of the Inspector General.

The Council has gone to some length in the Committee Report to emphasize, albeit in a totally summary fashion, the complexity of the functions that must be performed by the Inspector General. Yet, the legislative record contains no testimony or other information from law enforcement experts that would identify rational performance standards for the District’s Inspector General, or would indicate whether those performance standards have been met, and, if not, what qualifications in another applicant would result in better performance.

Similarly, there is no discussion in the Committee Report, apart from a response to the incumbent Inspector General’s legal arguments concerning the Council’s authority to enact legislation with the purpose and effect of removing him from office, of the Inspector General’s testimony at a March 7, 2003 performance review hearing and a March 27, 2003, letter from the Inspector General to Councilmember Orange (Committee Report, Attachment C). These documents show the Council’s attempts to demonstrate—with limited success--the validity of the many allegations they have levied against the incumbent Inspector General. The Mayor, as demonstrated by City Administrator Koskinen’s response, dated December 16,2002, to Councilmember Orange’s letter of the previous month reiterating a demand that the Mayor request Mr. Maddox’s resignation, was not persuaded on the record as a whole that there was any reason to take personnel action against the Inspector General. From these submissions, it is clear that the instant legislation is an attempt to remove a particular person from Office with whom the Council has an unexplained dissatisfaction. In a situation where the Council’s intent in enacting this legislation must be considered, the record is woefully lacking in support of the Council’s alleged "good faith".

Finally, and perhaps most revealingly, in its zeal to create qualifications that would be impossible for the incumbent Inspector General to meet, the Council included in the Qualifications Amendment Act a qualification that would be impossible for anyone to meet. While the legislation requires the Inspector General to possess a certificate from the District of Columbia Board of Accountancy, the Board of Accountancy ceased issuing such certificates four years ago. Affidavit of Patsy Lockett, attached hereto as Exhibit _2_.

Whether by design or inattention, the creation of an impossible qualification further undercuts plaintiffs’ contentions about the purposes and motives for the enactment of the IG Act. Rather, it supports the Mayor’s assertion that the legislation seeks to remove an incumbent in a manner that is legally unsupportable and procedurally misplaced.

The legislative record as a whole, therefore, reveals that the Council had no legitimate legislative purpose in passing this legislation. As the case law clearly demonstrates, see Defendant’s Motion for Summary Judgment, pp. 7-10, it is not the function of the legislature to remove an executive officer when the legislature determines that the officer is unqualified or not performing capably. This is an executive function. Id. Mr. Maddox was appointed to a six-year term of office in accord with the procedures set by Congress pursuant to its plenary power over the District of Columbia. If he is not performing capably, it is only the Mayor, as the executive, who can take action to remove Mr. Maddox.

In sum, plaintiffs are clearly using their legislative power to establish the qualifications for an office "as a device to unseat the incumbent", see Ahearn v. Bailey, 451 P.2d 30, 34 (Ariz. 1969), and in so doing, they are circumventing the executive's power of removal and trampling on Mr. Maddox’s due process right to be removed only for cause.

III. The School Governance Charter Amendment Act Cited by the Council is Easily Distinguished From the IG Act

Finally, plaintiffs’ Memorandum, pp. 28-29, suggests that the Mayor is being disingenuous in arguing the existence of a separation-of-powers violation with respect to the IG Act’s shortening of Mr. Maddox’s term, given that the Mayor sponsored and signed local legislation in 2000 that shortened the terms of sitting members of the D.C. Board of Education. However, it is plaintiffs’ suggestion in this respect that is disingenuous because the subject local legislation was a congressionally-authorized amendment to the District’s Charter. Since the Charter is the source of the separation-of-powers doctrine, an amendment to the Charter can, of course, carve out an exception to that doctrine.

As stated in Item #’s 14-16 of Plaintiffs’ Statement of Undisputed Material Facts, in January 2000 the Mayor transmitted a proposed bill to the Council for the purpose of amending section 495 of the Home Rule Act (part of Title IV, the Charter) to reform the Board of Education. As a result, the Council adopted the School Governance Charter Amendment Act of 2000, which, pursuant to section 303 of the Home Rule Act, was submitted to the voters of the District for ratification.8 The voters narrowly approved the amendment, and it became effective June 27, 2000 as D.C. Law 13-159, D.C. Official Code § 1-204.95 (2001). The amendment: (1) reduced the membership of the Board of Education from 11 to nine members; (2) made the selection of five of the new members by election (the President of the Board and four members from special school districts); and (3) made selection of the remaining four members by mayoral appointment. As a consequence, the terms of five sitting members of the Board were reduced.

There were substantial reasons of policy that motivated the Mayor’s support for this Charter amendment. The purpose of shortening the terms of sitting members was to reconstitute the Board, with some members being selected by the Mayor and some being elected from special school districts. The policy considerations behind the Mayor’s support for the amendment have no relevance to whether Mr. Maddox’s term should be shortened in 2003. Thus, from a policy standpoint, the Mayor’s support for the Charter amendment in 2000 is entirely consistent with his opposition to the shortening of Mr. Maddox’s term in 2003.

Had the shortening of the terms of members of the Board of Education been attempted by regular Council legislation, like the IG Act, that change likely would have run afoul of the Charter, including the doctrine of separation-of-powers, as we have already shown. However, because the change shortening the terms of Board members was to the Charter itself, the change obviously could not violate the Charter or the doctrine of separation-of-powers. The Charter cannot violate itself. The Mayor’s legal position concerning the Charter amendment in 2000 is therefore fully consistent with his legal position in this case.

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For the foregoing reasons and those asserting in his previous submission, the defendant respectfully urges the Court dismiss plaintiffs’ motion or in the alternative, to grant summary judgment in favor of the defendant. The enactment, however the Council intended it, has the effect of illegally usurping the authority of the Mayor to remove the incumbent IG. The Council’s efforts violate the doctrine of separation of powers and are unsupported even by plaintiffs’ own analysis. To the extent the plaintiffs have a remedy in this situation, it exists only in the quo warranto proceedings available in this jurisdiction, an issue the defendant has previously addressed.

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

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I hereby certify that a copy of the Defendant’s Memorandum of Points and Authorities In Opposition to Plaintiffs’ Motion for Summary Judgment was delivered electronically via email and by hard copy, with attachments on this 20th 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

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1. This Court’s June 19, 2003 Order, which concludes that 12 of the 13 plaintiff members of the Council have standing to bring this action, likewise assumes the truth of the plaintiffs’ allegation that the Mayor’s refusal to execute the legislation’s requirements caused the legislation not to be enforced with respect to Mr. Maddox’s removal on June 1st. See p.4 of the Order. For purposes of a determination of whether a plaintiff has standing, a court must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party. See, e.g., Warth v. Seldin, 422 U.S. 490, 501 (1975). A decision regarding standing does not reach the merits of the underlying claim. Ibid. Presumably, that is the approach this Court took in its June 19, 2003 Order. Thus, the substantive issues surrounding the Mayor’s legal role under the IG Act and the effect of the Mayor’s inaction remain open for decision on the parties’ pending cross-motions.

2. Plaintiffs also have an unexhausted avenue of legislative relief that should be noted. Under section 303 of the Home Rule Act, D.C. Official Code § 1-203.03 (2001), the Council has the ability to initiate an amendment to the District’s Charter that would carve out an exception to validate the IG Act’s otherwise unlawful intrusion into executive power. To amend the Charter in this way, the Council would adopt an act and obtain its ratification by a majority of registered District voters in a referendum held for such ratification. The act ratified by the electorate then would be submitted to Congress for a 35-day review period. If Congress took no action during the review period, the act would amend the Charter, thereby allowing the exception to the doctrine of separation-of-powers that the Council, in effect, seeks pursuant to the IG Act.

3. The only duty that the IG Act arguably imposes on the Mayor is that of submitting a nomination to the Council for a new IG within 30 days after the occurrence of a vacancy in the Office of the IG. If the automatic removal provisions of the IG Act are valid, the Office of the IG became vacant on June 1, 2003, and the Mayor is obligated to nominate someone to fill that vacancy by July 1, 2003. However, the plaintiffs’ lawsuit does not claim that the Mayor has violated this duty. In any event, because the duty to nominate is integral to the Mayor’s appointment power, the Council can no more coerce the Mayor’s appointment power in this manner than it can coerce his power of removal by forcing him to oust a particular officeholder or directly ousting the officeholder themselves. Moreover, the word "shall" in connection with the Mayor’s duty to nominate within 30 days does not necessarily create a mandatory obligation, even assuming that the provision for Mr. Maddox’s automatic removal by June 1st is valid. It is well-settled that, if a provision of a statute uses "shall" in stating a time for performance of an official duty, without specifying adverse consequences if the deadline is not met, the statute is presumed to be only directory. See United States v. Montalvo-Murillo, 495 U.S. 711, 718-20 (1990); Brock v. Pierce County, 476 U.S. 253, 258-60 (1986); Teamsters Local Union 1714 v. Public Employee Relations Board, 579 A.2d 706, 710 (D.C. 1990); Morris v. D.C. Department of Employment Services, 530 A.2d 683, 684, n. 3 (D.C. 1987); Vann v. D.C. Board of Funeral Directors and Embalmers, 441 A.2d 246, 268 (D.C. 1982); JBG Properties, Inc. v. D.C. Office of Human Rights, 364 A.2d 1183, 1185 (D.C. 1976); 3 Sutherland Statutory Construction, § 57.19, pp. 58-59 (6th ed. 2001). This rule clearly applies to the 30-day timeline for submission of a nominee to the Council under the IG Act. This rule gives way only where the plaintiff initially produces evidence to show substantial prejudice as a result of non-compliance and the non-complying party cannot, in turn, show that such prejudice is outweighed by the interest of the public in allowing the government to operate despite non-compliance. See Teamsters Union 1714, supra, 579 A.2d at 711; Vann, supra, 441 A.2d at 248; JBG Properties, supra, 364 A.2d at 1186. Here, there is no evidence of, or reason to expect, prejudice to the Council as a result of mayoral delay past July 1st in nominating a new IG, if the IG position became vacant on June 1st .

4. Plaintiffs’ June 11, 2003 Statement of Undisputed Material Facts contains Item #12, which states: "The Defendant, by letter dated May 30, 2003, to Members of the Council, stated that he will not enforce this law, that he had instructed the incumbent to continue in office, and had instructed other employees in the executive branch not to acknowledge this law." See also p. 10 of Plaintiffs’ Memorandum. This purported statement of an undisputed fact is wrong in several essentials. First, the Mayor never asserted that he would not enforce the IG Act. As discussed above, because the Mayor had no duty to remove Mr. Maddox based on the IG Act, he had no reason to state that he would not carry out such a duty. Second, the Mayor never instructed Mr. Maddox to continue in office. As Plaintiffs’ Memorandum recognizes in footnote 17, on p. 14, the Office of the Inspector General, which section 208(a)(1)(A) of the PPA created in the executive branch, enjoys a high degree of independence from the Mayor. It follows that the Mayor had no authority to instruct Mr. Maddox to continue in his position after June 1st, and had no means of enforcing such a directive, if made. Instead, as the Mayor’s May 30, 2003 letter to the Council shows, the Mayor merely advised Mr. Maddox that he should continue in his office, based on the May 30, 2003 formal Opinion of the Corporation Counsel. In United States Parole Commission v. Noble, 693 A.2d 1084, 1101 (D.C. 1997), adopted on rehearing en banc, 711 A.2d 85 (D.C. 1998), the D.C. Court of Appeals recognized that District agencies and employees commonly relied on a formal Corporation Counsel opinion as a "guiding statement of law," absent specific action to the contrary by the Mayor or the Council in any governing spheres of action available to them, or until overruled by a controlling court decision. The May 30, 2003 Opinion bound Mr. Maddox as a "guiding statement of law," and the Mayor simply advised Mr. Maddox of that fact. Similarly, the Mayor’s May 30, 2003 letter to the Acting Director of Personnel attached a copy of the Opinion, and advised that she should continue Mr. Maddox as a District government employee, pursuant to the terms of his appointment as IG. The Mayor’s May 30, 2003 letter to the Chief Financial Officer of the District of Columbia ("CFO") likewise attached a copy of the Opinion, and advised that Mr. Maddox should remain on the government payroll and continue to be paid his salary, pursuant to his appointment as IG. (A copy of the letters to the Acting Director of Personnel and the CFO are appended.) We note that, like the IG, the CFO exercises a high degree of independence in the executive branch. In fact, the independence of the Office of the CFO is established under the District’s Charter, section 424 of the Home Rule Act, D.C. Official Code § 1-204.24a et seq., rather than simply as a matter of Council-enacted law. Thus, as in the case of the IG, the Mayor had no authority to instruct the CFO to continue paying Mr. Maddox after June 1st, or any means of enforcing such a directive. Indeed, the CFO has his own General Counsel, independent of the Mayor and the Corporation Counsel, who is the CFO’s primary legal adviser.

6. In an argument that highlights the fact that performing legal services was a new function of the office, the incumbent contended that the amended law violated the state constitution by changing and diminishing the constitutional powers of the Attorney General as the "head of the legal department of this state". The incumbent also argued that: (1) the office that she holds was not expressly abolished by the amended law and continued to exist; (2) the law violated the state constitutional requirement that no law embrace more than one subject; and (3) the law is unconstitutional because it is an appropriation measure that failed to receive a two-thirds vote of the legislature as required by the state Constitution. The court rejected each of these arguments.. Plaintiff’s Memorandum, pp. 12-13, cites a decision of the D.C. Court of Appeals that eschews any pre-election review, by the D.C. Board of Elections and Ethics, of constitutional challenges to proposed initiatives unless the proposed initiative, if adopted, would be "patently, obviously, and unquestionably unconstitutional." See, e.g., Committee for Voluntary Prayer v. Wimberly, 704 A.2d 1199, 1201 (D.C. 1997). Plaintiffs’ argument is that the Mayor should be unable to disavow enforcement of a duly-enacted District statute unless the latter also is "patently, obviously, and unquestionably unconstitutional." We believe the automatic removal provision of the IG Act does meet the quoted test. More important, however, that test has no application here, even by analogy, for the IG Act has gone through the whole legislative process and been adopted, whereas the proposed initiatives at issue before the Court of Appeals in the cited cases had only started the legislative process. Moreover, the Board of Elections and Ethics owed an enforceable statutory duty to the proponents of the initiatives, while the Mayor has no enforceable duty arising out of the IG Act. Plaintiffs’ Memorandum, pp. 13-14, also cites a number of decisions in cases where the constitutionality of legislation was at issue and the executive, having earlier refused to implement the legislation, also refused to comply with a court order upholding the legislation and requiring the executive to carry it out. These decisions have no bearing here, for this Court has not yet ruled on the validity of the automatic removal provision of the IG Act.

7. In addition, plaintiffs misrepresent the holdings in other cases to support their argument, but these cases have no relevance to the issues raised in this case. For example, plaintiffs cite to State ex. rel. Associated Master Barbers & Beauticians v. Eischen, 76 N.W.2d 385 (Minn. 1956), to support their statement that the legislature’s power to establish qualifications for an office is not inconsistent with the executive’s removal, even if the establishment of the qualifications results in the incumbent officer having to vacate the office. However, the issue in this case was whether the incumbent in fact satisfied the qualification requirements, not whether the qualifications could be changed after appointment. In addition, Miller v. Mendez, 804 So.2d 1243 (Fla. 2001), did not concern an incumbent officeholder who no longer meets the qualifications for office, as represented by plaintiffs (see Plaintiffs’ Motion, p. 17-18), but whether residence under the election laws refers to residence at the time of assuming office or at the time the candidate signs an oath of candidacy. Similarly, Donohue v. Conklin, 747 N.Y.S.2d 893 (2002), does not involve an incumbent officeholder who must vacate a position because they no longer meet the qualifications for office, see Plaintiff’s Motion, p. 18, but whether out-of-state individuals working on a political campaign meet the current residency requirement for appointment as commissioner of deeds so that they could collect signatures for nominating petitions.

8. Section 303 of the Home Rule Act, D.C. Official Code § 1-203.03 (2001), contains a procedure for amending most sections of the District’s Charter without an affirmative act of Congress. Under this procedure, the Council adopts an act and obtains its ratification by a majority of registered District voters in a referendum. The ratified act then is submitted to Congress for a 35-day review period. If Congress takes no action during the review period, the act amending the Charter takes effect. For the School Governance Charter Amendment Act of 2000, there was no review period. Congress passed a law that exempted the amendment from the review period and made it effective on June 27, 2000, the date of voter ratification.

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