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IN THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Lois E. Adams, et al,
Plaintiffs,
versus
Civil Action No:
98-1665 (LFO, MBG, CKK)
William Jefferson Clinton, et al,
Defendants
MEMORANDUM OF TWENTY CITIZENS OF THE DISTRICT OF COLUMBIA,
PLAINTIFFS IN ADAMS V. CLINTON, ON THE PRECEDENTIAL IMPORTANCE OF
ALBAUGH V. TAWES, 233 F.Supp. 576 (D.Md.), aff'd, 379 U.S. 27 (1964)
On April 14, 1999, the Court entered an Order that counsel should be
prepared to address the precedential importance of the case Albaugh v. Tawes, 233 F.Supp.
576 (D.Md. 1964), which was summarily affirmed by the Supreme Court, 379 U.S. 27 (1964).
Albaugh considered the question whether "the District of Columbia is a part of the
State of Maryland for purposes of United States Senator elections" in Maryland. 233
F.Supp. at 576. The Plaintiffs in Adams v. Clinton present the following points with
regard to the issue.
All the claims and arguments made on behalf of the Twenty Citizens in
Adams v. Clinton are entirely independent of (and do not depend upon or incorporate) any
claims or arguments in Albaugh v. Tawes. In fact, the position of the Twenty Citizens is
that, precisely because of their residence in the District of Columbia, they are stripped
of the status of being citizens of any State, and this position is an affirmative
component of the Plaintiffs' claims and arguments in support of summary judgment for the
Plaintiffs in Adams v. Clinton (see Memorandum in Support of Summary Judgment in Favor of
Twenty Citizens at 12, 15-18, 68-73; Reply to Defendant [Control Board's] Opposition at
6-8; see also Exhibits Supporting the Motion for Summary Judgment of the Twenty Citizens
of the District of Columbia: A 7; B 9; C 7; D 6; E 6; F 6; G
6; H 7; I 6; J 6; K 6; L 6; M 6; N 6; O 6; P
11; Q 6; R 6; S 7; T 6) ). In addition, the Plaintiffs in Adams
v. Clinton have taken great pains to make it clear that they do not ask this Court to
declare or craft a "retrocession" or reunification of the District of Columbia
to Maryland (see Plaintiffs' Opposition to Federal Defendants' Motions to Dismiss at 1-2,
7-8, 14-15; Reply of Plaintiffs to Clinton's Opposition to Summary Judgment at 8, 9; Reply
of Plaintiffs to House Officers' Opposition to Summary Judgment at 3; Response of Twenty
Citizens to Memorandum of the Committee for the Capital City, Amicus Curiae at 3-4).
Therefore, even assuming this Court is bound by the Supreme Court's summary affirmance of
Albaugh, all claims and arguments made by Plaintiffs in Adams v. Clinton remain intact.
Insofar as Albaugh has any relevance to the claims or arguments in
Adams v. Clinton (other than merely to recite the prevailing legal authority for the
determination that the Plaintiffs are not citizens of Maryland), it is in Albaugh's brief
reference to arguments "based upon" the fact that residents of the District were
allowed to vote in Maryland prior to 1801. 233 F.Supp. at 578. The Twenty Citizens discuss
this period in their Memorandum in Support of Summary Judgment (at 18-22) and in their
Response to the Memorandum of Eleven Law Professors, Amici Curiae (at 6-15). The entire
point of the Twenty Citizens' discussion of the period is best summarized, perhaps, in the
latter document, where it was said that,
despite holding the whole power of exclusive jurisdiction, intended to
protect the national interests in securing a permanent Seat of the Federal Government,
Congress did not see any need to exclude the residents of the District . . . from
apportionment of representation in Congress while this Seat was being build under
Congress' power.
Id. at 15. This point seems to comport with--and certainly doesn't run against--the brief
comments in Albaugh on the same period. See also id. at 1-2 and Response of Twenty
Citizens' to Memorandum of the Committee for the Capital City, Amicus Curiae, at 4-5
(reflecting the same considerations as were voiced by the District Court in Albaugh). Thus
again, the claims and arguments in Adams are independent of the claims and arguments in
Albaugh.
But all this said, counsel feels he must speak also as an officer of
the court and suggest that the Court is not bound by the decisions in Albaugh. First, the
rule stated in Hicks v. Miranda, 422 U.S. 332 (1975), is not an unbreakable, infinite
jurisdictional loop. Were the rule read so strictly, any question summarily affirmed could
never be re-addressed, precisely because the Supreme Court would never again address it
(since the Court only properly decides questions presented on appeal or certified),
because no lower court could address it until the Supreme Court addressed it, and so on
and so on and so on. But the rule stated in Hicks provides an opening to revisit
"decided" and summarily affirmed questions. The Supreme Court's advice in Hicks
to lower courts was as follows:
The District Court should have followed the Second Circuit's advice,
first, in Port Authority Bondholders Protective Committee v. Port of New York Authority,
387 F.2d 259, 263 n.3 (1967), that "unless and until the Supreme Court should
instruct otherwise, to the view that if the Court has branded a question as unsubstantial,
it remains so except when doctrinal developments indicate otherwise"; and, later, in
Doe v. Hodgson, 478 F.2d 537, 539, cert. Denied sub nom. Doe v. Brennan, 414 U.S. 1096 . .
. (1973), that the lower courts are bound by summary decisions by this Court "'until
such time as the Court informs [them] that [they] are not.'"
422 U.S. at 344-45 (emphasis added). Thus, "when doctrinal developments
indicate" that a question previously decided may no longer have the force or result
stated in the previous decision, a lower court is not barred from examining the question
in light of the "doctrinal developments."
And indeed, "doctrinal developments" have placed the
unremitting rule of Albaugh in question. The District Court's decision in Albaugh is based
wholly on the authority of Reily v. Lamar, 6 U.S. (2 Cranch) 344 (1805), cited at 233
F.Supp. at 578, which said, "[b]y the separation of the district of Columbia from the
state of Maryland, the complainant ceased to be a citizen of that state, his residence
being in the city of Washington, at the time of that separation." 6 U.S. at 356.
Thus, Reily recites a doctrine which is commonly referred to as the doctrine of
"extraterritoriality," that creation of the District of Columbia took it wholly
out of the state of Maryland, making it a distinct legal entity extracted from another
legal entity, even though physically within the other. See Jurisdiction Over Federal Areas
Within the States; Report of the Interdepartmental Committee for the Study of Jurisdiction
over Federal Areas Within the States; Part II: A Text of the Law of Legislative
Jurisdiction (1957) (hereinafter "2 JOFAWS") at 238-38; see also J.L. Brierly,
The Law of Nations, 222 (6th ed. 1963).
The same doctrine of extraterritoriality applied in Reily v. Lamar has
also been applied to the "federal enclaves," which are discussed at length in
the Memorandum in Support of Summary Judgment filed on behalf of the Plaintiffs in Adams
v. Clinton (at 37-47). For the same reasons as given in Reily, the citizens of the federal
enclaves were treated as having lost their State citizenship, with the creation of the
federal enclave. But in 1953, the doctrine was overturned in a case concerning a federal
enclave: Howard v. Commissioners of the Sinking Fund, 344 U.S. 624 (1953). 2 JOFAWS
238-41.
Howard concerned an enclave adjacent to the City of Louisville,
Kentucky. Louisville tried to annex a portion of the enclave and collect certain taxes and
fees from civilian employees working in the portion of the enclave annexed by the City.
344 U.S. at 625-26. These employees brought suit to obtain a declaratory judgment that the
annexation was unlawful, saying the City of Louisville could not tax them for their work
within a federal enclave. Their argument depended, in essence, on the doctrine of
extraterritoriality--that the enclave was not part of the state of Kentucky--so persons
within the enclave cannot be brought jurisdiction of the City of Louisville for exercise
of any power, including the power to tax. Id. The Supreme Court disagreed, saying,
[w]hen the United States, with the consent of Kentucky, acquired the
property upon which the [federal enclave in question] is located, the property did not
cease to be a part of Kentucky. . . . The fiction of a state within a state can have no
validity to prevent the state from exercising its power over the federal [enclave] within
its boundaries, so long as there is no interference with the jurisdiction asserted by the
Federal Government.
344 U.S. at 626-27. Thus, Howard v. Commissioners of the Sinking Fund terminated the
extraterritoriality doctrine, on which basis most of the decisions denying civil and
political rights within the enclaves had been based. 2 JOFAWS 242-43.
Although the Supreme Court terminated the doctrine of
extraterritoriality in 1953 with Howard v. Commissioners of the Sinking Fund, citizens of
many enclaves were deprived of fundamental civil and political rights for almost two more
decades. These spurious attempts to deny civil and political rights on the basis of the
extraterritoriality doctrine finally ended, however, with the case of Evans v. Cornman,
398 U.S. 419 (1970), which is discussed at length by the Plaintiffs in Adams. See
Memorandum in Support of Summary Judgment at 44-46; Response of Twenty Citizens to
Memorandum of Paul Strauss, Amicus Curiae at 2-4.
Thus, Howard v. Commissioners of the Sinking Fund and Evans v. Cornman
must be read to void to doctrine of extraterritoriality erected in Reily v. Lamar, despite
the fact that Howard and Evans arose out of federal enclaves and Reily arose out of the
District of Columbia. The power which "separated" the District of Columbia from
Maryland, 6 U.S. at 356, was identical to the power which "separated" every
single enclave from every State in which an enclave was or is located. U.S. Const., Art.
I, 8, 17; Paul v. United States, 371 U.S. 245, 263 (1963); Fort Leavenworth R.
Co. v. Lowe, 114 U.S. 525, 529-33 (1885); Ex Parte Siebold, 100 U.S. 371, 395 (1879);
compare Kleppe v. New Mexico, 426 U.S. 529, 541-42, reh'g denied (1976). If the power did
not necessarily sever the enclaves from the states in one application, it cannot be said
to have necessarily severed the District from Maryland in the other.
It might be noted finally that, although it continued to apply the
doctrine of extraterritoriality to the federal enclaves until 1953, the Supreme Court has
revisited Reily v. Lamar only three times. In each of these cases, In re the San Pedro, 15
U.S. (2 Wheat.) 132, 142 (1817), Hudgins v. Kemp, 59 U.S. (18 How.) 530, 537 (1855), and
Hewitt v. Filbert, 116 U.S. 142, 144 (1885), the Supreme Court cited Reily for a
procedural proposition concerning the form or manner by which a party to a suit is
notified that another party has filed an appeal. This proposition is unrelated to the
doctrine for which Reily was cited by the District Court in Albaugh. It does not depend on
the doctrine and the doctrine does not depend on it.
Now, none of this is to say that the citizens of the District of
Columbia "are now" citizens of the State of Maryland. Reily might have been
decided differently, and the District might have remained parts of the States which had
ceded portions of their territory, but two hundred years of separation is a legal and
political reality which cannot be conjured away by judicial fiat. The citizens of the
District--and of Maryland, for that matter--cannot be forced into a union to which they
have not consented and which they are not prepared to make work. In other words, despite
the symmetry of the foregoing analysis of Howard and its progeny, this is a political
question. See Response of Twenty Citizens to Memorandum of Committee for the Capital City,
Amicus Curiae at 3-4; see also de la Rosa v. United States, 842 F.Supp. 607, 610 (D.P.R.),
aff'd, 32 F.3d 8 (1st. Cir. 1994), cert. denied, 514 U.S. 1049 (1955). Quite simply, the
Court cannot decide the question presented in Albaugh. [footnote 3: Two other issues might
also be noted, though they run a bit afield of the Court's question. One, there are
serious questions whether Mr. Albaugh had standing to bring his claims, so there's a
question whether the claims of another plaintiff who has standing should be precluded by
Albaugh. Second, there is very good reason to conclude that Reily was wrongly decided on
its merits. A short analysis of this assertion is so is attached to this memorandum in an
Appendix.]
But the Court can revisit Albaugh insofar as it depends on Reily, and
the Court certainly can revisit Reily, insofar as it depends on the doctrine of
extraterritoriality. Reily and, derivatively, Albaugh have been used to legitimate the
status quo, yet both are pitifully weak authority for that task and neither should not be
taken to bind the political will of the people of the District of Columbia to determine
the status of the District of Columbia. The realization that Reily is such weak authority
for the status quo only supports and extends the Twenty Citizens' plea that the citizens
of the District be freed from their colonial status and allowed to decide for themselves
whither the District shall go.
Respectfully submitted,
George S. LaRoche
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