|
LOIS E. ADAMS, et al, Plaintiffs
v. Civil Action No. 98-1665-LFO
WILLIAM JEFFERSON CLINTON, et al, Defendants
____________________________________________
CLIFFORD ALEXANDER, et al, Plaintiffs
v. Civil Action No. 98-2187-LFO
WILLIAM M. DALEY, Secretary of Commerce, et al, Defendants
STATEMENT ON BEHALF OF
TWENTY CITIZENS OF THE DISTRICT OF COLUMBIA
IN RESPONSE TO MOTION OF MUNICIPAL CORPORATION
DISTRICT OF COLUMBIA FOR LEAVE TO CONTINUE
REPRESENTATION BY CORPORATION COUNSEL
On or about November 13, 1998, the municipal corporation District of Columbia, a Plaintiff
in Alexander v. Daley, Civil Action No. 98-2187, filed a Motion for Leave to Continue
Representation by Corporation Counsel ("Motion"). While the Motion is not
facially directed at
the Plaintiffs in Twenty Citizens of the District of Columbia v. Clinton, Civil Action No.
98-1665,
the Corrected and Amended Memorandum in Support of the Motion ("Memorandum")
contains
certain assertions which have direct impact upon the claims and issues presented by Twenty
Citizens. Therefore, Twenty Citizens file the instant statement of their response to the
Motion.
[footnote 1: The municipal corporation states that Corporation Counsel "conferred
with counsel
for the other parties to the above-captioned action . . . ." (Motion at 2; emphasis
added).
Because the Motion was filed under a dual title including Twenty Citizens [Adams] v.
Clinton,
reference to a single "action" by Corporation Counsel is slightly confusing. Be
that as it may,
Corporation Counsel did not confer with counsel for the Plaintiffs in Twenty Citizens.]
Corporation Counsel states that he represents the citizens of the District in the role of
"parens patriae," saying, "[i]n its parens patriae capacity, the District
of Columbia . . . serves
are the people's voice" (Memorandum at 6) and saying Corporation Counsel
"represents . . . both
the District of Columbia as a plaintiff in its own right and the District as parens
patriae for all
citizens of the District" (id. at 14; see also id. at 1, 23). While Twenty Citizens
share Corporation
Counsel's outrage at Congress's insult to the citizens, the Twenty Citizens suffer no
disability or
mental incapacity rendering them incapable of seeking to protect or assert their interests
in their
personal capacities. In short, the municipal corporation District of Columbia, whether
properly
acting as parens patriae or not, does not speak for any interests advanced in Twenty
Citizens.
[footnote 2: Corporation Counsel speaks for the municipal corporation and it's likely
Corporation
Counsel's position reflects the views of some number of the citizens. But Corporation
Counsel
doesn't represent all the views of the citizens, since he's in alliance with 54 individual
citizens
represented by other counsel and since twenty more citizens were already seeking
recognition of
their rights before he entered the fray.]
Corporation Counsel also seeks "to vindicate the people's rights" (id. at 9),
referring to the
"effective voice" of "the vast majority of District citizens" (id. at
15), and saying "only the
Corporation Counsel can speak in this case on behalf of the District of Columbia as a
whole" (id.
at n.15) and "[o]nly the Corporation Counsel . . . has the capacity to speak to the
interests of the
community in this suit" (id. at 23 & ff.). Also, he declares that:
[t]he individual plaintiffs and the District of Columbia share a common goal: to attain
voting representation for District citizens in Congress. Their interests, however, in the
effectuation of that goal have the potential to diverge. . . . [W]hen it . . . become[s]
necessary to speak to remedies, the individual citizens, and the community as a whole,
may not advance identical positions. Counsel for the District, at that juncture, will be
required to discern the will of the community as a whole, as expressed through the
elected, local government officials then in office. . . . Given the range of possible
alternatives, it is certainly likely that the remedy preferred by the District would not
necessarily be the remedy favored by all or some of the individual plaintiffs, or others
that might seek to be heard in that phase of the case, if it is necessary to reach that
phase.
(id. at 25).
While there are "group rights," see, e.g., Lani Guinier, Groups, Representation,
and Race
Conscious Districting; A Case of the Emperor's Clothes, in Lani Guinier, The Tyranny of
the
Majority; Fundamental Fairness in Representative Democracy, 119-156 (1994), the rights at
issue first and foremost in these cases appear to be personal to the individual citizen
plaintiffs.
See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995). To the extent any rights
asserted in these cases are manifested for a "group" per se, they would be those
arising under the
Guarantee Clause of the Constitution, art. IV, 4, cl. 1, which is the source of the
rights asserted
in Count Two of the Twenty Citizens Complaint ( 1-36, 88-118).
In this light, the action complained of in Corporation Counsel's Motion -- the
"rider" (see
Memorandum at 5-6) -- is a clear instance the pattern of Congressional action which gives
rise to
the claims presented in Twenty Citizens. The rider (barring an instrumentality of the
municipal
corporation from taking arguably salutary action on behalf of the citizens subjected to
the
congressionally created municipal corporation) is proof that the municipal corporation
administering the District of Columbia is not a republican form of government (through no
fault of
its own) (see Complaint in Twenty Citizens at 91). But such a claim under the
Guarantee Clause
necessarily challenges the same exercise of power which created the municipal corporation
District of Columbia in the first place. Thus, the municipal corporation District of
Columbia
(howsoever salutary its intentions) speaking through its Corporation Counsel, certainly
cannot be
the "only" proper proponent of such claims. [footnote 3: For now, the municipal
corporation has
a difficult and indispensable job to manage the District. It's ability to do this job
would be
undercut by an aggressive assertion that Congress denies to the citizens truly republican
forms of
government. Therefore, an intrinsic conflict of interest indicates that the municipal
corporation
cannot be the "only" advocate of this Claim.]
A related problem appears in Corporation Counsel's statement that Congress has
"disabl[ed]
the people's attorney from carrying through the litigation which the people, through their
elected,
local representatives, directed him to bring" (Memorandum at 8). Certainly, the
statement is
accurate within one definable scope of demonstrable facts, but the statement is
problematic within
a larger definable scope of demonstrable facts, which larger scope is more pertinent to
evaluation
of the merits of these cases.
Within the larger scope, "the people" of the United States were the token held
up as incentive
for Congress to create the home rule government for the District of Columbia. Within the
larger
scope, "the people" (actually, the "taxpayers") of the United States
were a token held up to
legitimate the "rider" at issue in Corporation Counsel's Motion (see Memorandum
at 11, quoting
144 Cong. Rec. H. 7360-61, August 5, 1998). So claims to speak with the authority of
"the
people" are highly problematic because it's not clear whose authority is actually
being conjured
with reference to "the people." But such claims are inappropriate in civil
rights cases such as
these because vindication of personal rights does not depend on political approval. See
West
Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943) ("[F]undamental
rights may
not be submitted to vote; they depend on the outcome of no elections.").
All this said, however, the Twenty Citizens are glad to have the company of Corporation
Counsel in their seemingly perpetual struggle for vindication of their rights.
Respectfully submitted,
George S. LaRoche, pro bono
|