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LOIS E. ADAMS, et al, Plaintiffs
v. Civil Action No. 98-1665-LFO
WILLIAM JEFFERSON CLINTON, et al, Defendants
MEMORANDUM AND ORDER [filed November 3, 1998]
An order entered October 15, 1998, instructed the parties to show cause why this case
should
not be consolidated with Alexander v. Daley, No. 98-CV-2187. See In re Cannonsburg
Environmental Assocs.. Ltd., 72 F.3d 1260, 1269 (6th Cir. 1996); In re Adams Apple. Inc.,
829
F.2d 1484, 1487 (9th Cir. 1987). Both sets of plaintiffs contend that lack of voting
representation
in the United States House of Representatives deprives citizens of the District of
Columbia of
their constitutional rights. According to the plaintiffs in Adams v. Clinton, the sources
of their
voting rights are the right to equal protection under the Fifth Amendment and the
guarantee of a
republican form of government to every State by 4 of Article IV. The plaintiffs in
Alexander v.
Daley point to the same two provisions of the Constitution, and they mention as well the
Due
Process Clause of the Fifth Amendment, Article I, 2, the Ninth and Seventeenth
Amendments
and the "[p]rivileges of citizenship . . . protected against state abridgment by the
Fourteenth
Amendment, and by incorporation into the Fifth Amendment against abridgment by federal
officials." According to the Alexander [page 2] plaintiffs, the Constitution also
entitles citizens of
the District of Columbia to voting representation in the United States Senate. Both sets
of
plaintiffs also maintain that their cases should be tried by a district court of three
judges, pursuant
to 28 U.S.C. 2284(a), and they share similar grievances against the Clerk of the
United States
House of Representatives and the House Sergeant-at-Arms.
Although these cases may not be identical, they involve common questions of law; if there
are
disputed issues of fact, they may well overlap. See Fed. R. Civ. P. 42(a); Synar v. United
States,
626 F. Supp. 1374 (D.D.C. 1986). There is some overlap among the defendants, and although
the Adams plaintiffs sue the President of the United States, while the Alexander
plaintiffs sue the
Secretary of Commerce, these two defendants' interests are likely to be closely aligned.
(Although both sets of plaintiffs have applied for the convening of a three-judge court,
consolidation may be ordered by a single judge -- subject to review by the three-judge
court, if
such a court is convened. See 28 U.S.C. 2284(b) (3).)
The plaintiffs in Adams v. Clinton oppose consolidation of the cases on the grounds that
(1)
the parties seek different, perhaps incompatible, forms of relief, (2) the parties' claims
differ, (3)
the parties propose divergent constructions of [page 3] Article I, Section 8, cl. 17 of
the
Constitution [footnote 1: Article I, Section 8, Clause 17 provides: "The Congress
shall have
Power . . . To exercise exclusive Legislation in all Cases whatsoever, over such District
(not
exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of
Congress, become the Seat of the Government of the United States, and to exercise like
Authority
over all Places purchased by the Consent of the Legislature of the State in which the Same
shall
be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful
Buildings."]
and (4) the presence of the District of Columbia among the plaintiffs in Adams and as a
defendant
in Alexander.
It does not appear that the nature of the relief sought by the parties is an impediment to
consolidation. Even if the benefits of consolidation would not extend to consideration of
the
proper relief in each case, there may be substantial benefits to resolving common
questions of law
or fact with respect to the parties' entitlement to relief. The Adams plaintiffs, however,
suggest
that the "remedy anticipated in Alexander would deprive the citizens of the District
of Columbia
of truly republican forms of government." If that is true, that is all the more
reason to treat the
two cases together.
The Adams plaintiffs also argue that, although both they and the Alexander plaintiffs
appeal
to equal protection under the Fifth Amendment and to the Guarantee Clause of the
Constitution,
the details of the theories of the two sets of plaintiffs` diverge in significant
respects. This also
does not seem to be a barrier to consolidation; certainly the Adams plaintiffs have cited
no case
law that it is. Moreover, to the extent the constitutional [page 4] theories of the Adams
plaintiffs
and the Alexander plaintiffs are in tension, they may need to be reconciled. Given the
substantial
degree of overlap that does seem to exist between the cases, consolidated proceedings
provide an
opportunity to produce a consistent constitutional theory. These same considerations apply
to the
Adams plaintiffs' argument that differences between their interpretation of Article I,
Section 8,
Clause 17, and that of the Alexander plaintiffs preclude consolidation.
The Adams plaintiffs' argument that the factual bases of the two complaints are entirely
distinct is unsupported by any comparison of the likely relevant factual disputes, if any,
in each
case. The argument that the complaints do not share common factual questions is
implausible on
its face; while the court is open to argument on the point, the Adams plaintiffs' position
cannot be
accepted merely on the strength of a conclusory statement.
Finally, there is the question whether consolidation would place the District of Columbia
on
both sides of a controversy. The Adams plaintiffs have sued, among others, the District of
Columbia Financial Responsibility and Management Assistance Authority (the Control Board).
See Shook v. D.C. Fin. Responsibility and Management Assistance Auth., 132 F.3d 775, 777
(D.C. Cir. 1998); D.C. Code Ann. 47-391.1. Among the plaintiffs in Alexander v.
Daley is the
government of the District of Columbia. See D.C. Code Ann. 1-102. Although the
Control
Board is in some respects "an entity within the [page 5] government of the District
of Columbia,"
D.C. Code Ann. 47-391.1(a), the Control Board is in significant respects distinct
from the
District's government. See. e.g., D.C. Code Ann. 1-233(a) (10), 47-391.5,
47-391.8,
47-392.4(f). So there is no per se prohibition against the Control Board and the District
appearing on opposite sides of a lawsuit. Cf. Michael Herz, United States v. United
States: When
Can the Federal Government Sue Itself?, 32 Wm. & Mary L. Rev. 893, 895-97 (1991). The
relevant question is therefore whether consolidation would introduce a conflict of
interest among
the plaintiffs. See DuPont v. Southern Pac. Co., 366 F.2d 193, 196 (5th Cir. 1966). Of
course,
sometimes the interests of the Control Board and the District government will coincide.
The
interests of these bodies do not appear to be aligned in these actions, however. The Adams
plaintiffs explicitly seek to have the Control Board abolished, Adams Compl. at 28,
leaving the
District government "serving as interim government of the District of Columbia to
facilitate
transition of the District of Columbia to the status of sovereign State or to unification
with an
existing sovereign State, the choice between these alternatives to be solely decided by
the citizens
of the District of Columbia." Id. It appears the Alexander plaintiffs would be
satisfied with
achieving voting representation in the House and Senate, short of seeing the District
become a
new state or consolidate with an existing state. The Adams plaintiffs seem to have
concluded that
the existing District government would be hostile to the prospect of [page 6] sunsetting
the
municipal corporate form. That remains to be seen; in any event, Adams plaintiffs' designs
are
likely to involve and affect the District government, so the views of the corporation
counsel may
be relevant. Significant differences in views among the plaintiffs in the consolidated
litigation can
and will be considered. The court will rely on the good faith of the Adams plaintiffs and
the
Alexander plaintiffs to establish common ground where it is possible to do so.
Ultimately, both sets of plaintiffs must end up at the same point: on the most significant
issues, it will not be possible to grant one form of relief to the Adams plaintiffs and a
different
form of relief to the Alexander plaintiffs. Under these circumstances, the case for
consolidation is
compelling. Accordingly, it is this 2nd day of November 1998, hereby
ORDERED: that the proceedings in this case shall be consolidated with those of Alexander
v.
Daley, No. 98 CV 2187.
Louis F. Oberdorfer, United States District Judge
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