IN THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Twenty Citizens of the District of Columbia,
Plaintiffs
versus Civil Action No: 98-1665-LFO
William Jefferson Clinton, et al,
Defendants
Clifford Alexander, et al,
Plaintiffs
versus Civil Action No: 98-2187-LFO
William Daley, et al,
Defendants
MEMORANDUM OF PLAINTIFFS IN
TWENTY CITIZENS V. CLINTON SHOWING CAUSE
WHY THESE CASES SHOULD NOT BE CONSOLIDATED
On October 14, 1998, the Court entered an Order that the parties in these cases show
cause why they should not be consolidated. This memorandum explains why the case Twenty
Citizens of the District of Columbia v. Clinton, et al, Civil Action No. 98-1665-LFO,
[footnote 1: Plaintiffs in Twenty Citizens employ a case title which is unusual, but not
without precedent or justification. Since the Court's Show Cause Order (10/14/98) concerns
the nature and "identity" of this case, this Memorandum presents an opportune
moment to place in the record the justification for the unusual title, which is attached]
and the case Alexander, et al, v. Daley, et al, Civil Action No. 98-2187-LFO, should not
be consolidated.
THE LEGAL STANDARDS
FOR CONSOLIDATION OF CASES
Federal Rule of Civil Procedure 42(a) provides that,
[w]hen actions involving a common question of law or fact are pending before the court,
it may order a joint hearing or trial of any or all the matters in issue in the actions;
it may order all the actions consolidated; it may make such orders concerning proceedings
therein as may tend to avoid unnecessary costs or delay.
[page 2] Since the Court cites Synar v. United States, 626 F.Supp. 1374 (D.D.C. 1986),
aff'd (on unrelated grounds) sub nom Bowsher v. Synar, 478 U.S. 714 (1986), in addition to
Fed. R. Civ. P. 42(a), the Plaintiffs understand that the anticipated consolidation would
not "merge the suits into a single cause, or change the rights of the parties, or
make those who are parties in one suit parties in another[.]" Id., 626 F.Supp. at
1379, quoting Johnson v. Manhattan Railway, 289 U.S. 479, 496-97 (1933). See 9 Charles A.
Wright & Arthur R. Miller, Federal Practice and Procedure, Civil 2d 2382 at
429-31 (1995).
"Considerations of judicial economy strongly favor simultaneous resolution of all
claims growing out of one event." Ikerd v. Lapworth, 435 F.2d 197, 204 (7th Cir.
1970). In evaluating whether to consolidate cases, the court "must balance the
interest of judicial convenience against the potential for delay, confusion and prejudice
that may result from . . . consolidation." Bank of Montreal v. Eagle Associates, 117
F.R.D. 530, 532 (S.D.N.Y. 1987) (citations omitted). Also, the court "must examine
'the special underlying facts' [of each case] with 'close attention' before ordering a
consolidation." In re Repetitive Stress Injury Litigation, 11 F.3d 368, 373 (2nd Cir.
1993) (quoting Katz v. Realty Equities Corp., 521 F.2d 1354, 1361 (2d Cir. 1975).
In weighing judicial convenience against delay, confusion, and prejudice, the Court
must be careful to distinguish situations where consolidation would merely require the
parties in various suits to work together in common pretrial matters from situations where
consolidation would "deny a party his[/her] due process right to prosecute his[/her]
own separate and distinct claims or defenses without having them so merged into the claims
or defenses of others that irreparable injury will result." Garber v. Randell, 477
F.2d 711, 716 (2nd Cir. 1973). Specifically, the court "should be most cautious . . .
to make sure that the rights of the parties are not prejudiced by the order of
consolidation under the facts and circumstances of the particular case[;]" where
[page 3] consolidation would prejudice the rights of the parties, the cases should not be
consolidated. Dupont v. Southern Pacific Co., 366 F.2d 193, 196 (5th Cir. 1966), cert.
denied, 386 U.S. 958 (1967); accord Henderson v. Nat'l R.R. Passenger Corp., 118 F.R.D.
440, 441 (N.D. Ill. 1987); Bascom Launder Corp. v. Telecoin Corp. 15 F.R.D. 277 (S.D.N.Y.
1953). Since "it is possible to go too far in the interests of expediency and to
sacrifice basic fairness in the process[,]" Malcolm v. National Gypsum Co., 995 F.2d
346, 353 (2nd Cir. 1993), "[t]he systematic urge to aggregate litigation must not be
allowed to trump our dedication to individual justice, and we must take care that each
individual [party's] cause not be lost in the shadow of a towering [case,]" In re
Brooklyn Nary Yard Asbestos Litig., 971 F.2d 831, 853 (2nd Cir. 1992).
Consolidation of cases presents a particularly dangerous risk of prejudice when any
party would be forced to appear as both plaintiff and defendant in the consolidated cases.
Such a situation "could not be other than prejudicial" to parties in such
situation. Dupont, supra, 366 F.2d at 196 (emphasis added); see also Continental Bank
& Trust Co. v. OL.s.E.D. Platzer, 304 F.Supp. 228. 230 (S.D. Tx. 1969) (consolidation
which places a party "in the position of being a plaintiff/claimant and a defendant
in the same action . . . should be carefully avoided"); Atkinson v. Roth, 297 F.2d
570, 575-76 (3d Cir. 1961) (the presence of one person as both a plaintiff and defendant
in the same trial "emphasizes conflict," placing that person "at cross
purposes with the other plaintiffs"). Quite simply, it would be impossible to avoid
prejudice to the rights of the parties if consolidation "result[ed] in attack by
named plaintiff against named plaintiff with possible detriment and prejudice to each . .
. all to the advantage of the [Defendant]." Capstraw v. New York Cent. R. Co., 15
F.R.D. 267, 268, 269 (N.D.N.Y. 1954).
[page 4]APPLICATION OF THE STANDARDS TO THESE CASES
Although there are many reasons why these cases should not be consolidated, they may be
collated under four headings. These cases should not be consolidated because of: (1)
complete difference to the point of opposition between the relief sought in the cases, (2)
categorical differences promising confusion and threatening due process between the claims
presented, (3) divergence insuring confusion between the cases' constructions of the
District Clause of the Constitution, and (4) significant risk of prejudice and conflict
threatening due process, arising from the identity of certain parties and the positions
consolidation would force upon the parties.
As to the Relief Sought in the Cases
A general examination of the relief sought in each case makes it clear why the cases
cannot be consolidated. If the Court entered judgment in Alexander today, granting the
exact declaratory judgments requested in the Complaint and deferring further action to
allow Congress to take "appropriate action" (Alexander Complaint at pp. 57-58),
and if Congress responded to those declaratory judgments tonight, passing legislation
which the Plaintiffs in Alexander deemed to be "appropriate," satisfying the
Plaintiffs in Alexander completely, such that Alexander could be closed first thing
tomorrow morning, the Plaintiffs in Twenty Citizens would still be before the Court after
Alexander was closed, prosecuting every element and claim in their case.
The claims presented in Twenty Citizens would survive the full scope of relief
envisioned in Alexander because the relief envisioned in Alexander -- a unique, legislated
status for the citizens of the District of Columbia -- would itself be an instance of the
violations of right to the equal protection of the laws asserted in Count One of the
Complaint in Twenty Citizens. Likewise, howsoever politically welcome a degree of
representation in Congress would be, the remedy anticipated in Alexander would deprive the
citizens of the District of Columbia of truly republican [page 5] forms of government.
This is not just because the relief would not reach the claims made in Twenty Citizens:
that the citizens are entitled to a true state government insulated from Congressional
interference in matters properly within the exclusive competence of state governments.
This is because the remedy anticipated in Alexander is a legislative device, and the
citizens are entitled to exercise the indefeasible privileges and immunities of
citizenship under the terms of the Constitution, which Congress cannot alter or retract as
it sees fit in the moment.
In short, the relief sought in Alexander (in excess of the request for declaratory
judgement in 1 on pp. 57-58 of the Complaint in Alexander) is not a subset,
component, or portion of the relief sought in Twenty Citizens. The Plaintiffs in Twenty
Citizens do not seek any special status by means of Congressional legislation which
applies uniquely to the District of Columbia. Quite to the contrary, the Plaintiffs in
Twenty Citizens protest against the special status Congress has maintained for the
District, depriving them of the Equal Protection of the Laws (Twenty Citizens Complaint at
1-87) and depriving them of republican forms of government (id. at
1-36, 88-118). Thus, the relief sought in Alexander, while politically expedient, would
provide legal grounds for further prosecution of the claims in Twenty Citizens.
These distinctions go to the reasons these cases are before the Court: to obtain
remedies for the injuries charged. If the remedy in one case would be grounds for further
litigation in the other, it can hardly be said that consolidation would serve the
interests of judicial economy or efficiency. Ikerd, supra, 435 F.2d at 204. Rather,
consolidation presents serious risks of confusion and prejudice, tantamount to denying the
parties a reasonable chance to prosecute their respective, distinct claims. Garber, supra,
477 F.2d at 716. Consolidation would trump the Court's interest in "individual
justice." Brooklyn Nary Yard Litig. supra, 971 F.2d at 853.
[page 6]
As to the Claims Presented in the Cases
The Plaintiffs in Twenty Citizens bring two claims, one under the equal protection
provisions of the Constitution (Twenty Citizens Complaint at 1-36 & 37-87)
and one under the Guarantee Clause of the Constitution (id. at 1-36 &
88-118). The Plaintiffs in Alexander also bring claims for denial of equal protection
(Alexander Complaint at 1-142 & 143-46) and denial of a republican form of
government (id. at 1-142 & 163-67). But the claims (insofar as counsel
understands those in Alexander) are markedly different and independent in each case
The equal protection claim in Twenty Citizens compares Congressional treatment of the
Plaintiffs with Congressional treatment of the citizens of the former portion of the
District of Columbia south-west of the Potomac River and with Congressional treatment of
the citizens of the federal enclaves (Twenty Citizens Complaint at 13-19,
38-42, 56-57). [Footnote 2: The Twenty Citizens Plaintiffs' Opposition to the Federal
Defendants' Motions to Dismiss (which will be filed within the next two weeks) will also
show that there is an ancillary argument that the differential treatment extends to the
treatment of all citizens who reside in States which were formerly territories before
admitted as States.] Congress has exercised over those citizens powers which are identical
to the powers it exercises over the citizens of the District of Columbia, yet Congress has
treated those other citizens differently, for no compelling reason, with the result that
the fundamental constitutional rights of the citizens of the District of Columbia are
infringed. The Plaintiffs in Twenty Citizens seek declarations that they have rights to
equal protection, that their rights are infringed, and they seek injunctions against
enforcement of various aspects of the differential treatment.
The equal protection claim in Alexander compares Congressional treatment of the
Plaintiffs in Alexander with Congressional treatment of all other citizens of the United
States (Alexander Complaint at 143), observing that the Plaintiffs' right to vote
for members of Congress is [page 7] infringed. The Plaintiffs in Alexander seek
declarations that they have a fundamental right to vote for members of Congress and they
seek appropriate legislation by Congress which would provide for their opportunity to vote
for members of Congress.
Thus, the respective equal protection claims are different. The Plaintiffs in Twenty
Citizens agree with the Plaintiffs in Alexander that there is such a thing as a
fundamental "right to vote," but assertion of a fundamental "right to
vote" is not an intrinsic part of the claims in Twenty Citizens. Their claim rests on
the more straightforward observation that Congress has taken steps in favor of the former
portion of the District of Columbia south-west of the Potomac River and in favor of the
federal enclaves to incorporate those places into the States, with the result that the
residents of those places have all the privileges and immunities of State citizenship, and
with the result that the residents of those places are also represented in the national
government under the unadorned terms of the Constitution.
The Plaintiffs in Twenty Citizens cannot determine from the Complaint in Alexander what
group of people have ever been the beneficiaries of unique Congressional legislation
extending representation to that group on the basis of a fundamental right to vote.
Rather, it would appear to the Plaintiffs in Twenty Citizens that all other groups are
represented in Congress not by special legislation but by virtue of being citizens of the
various States. Thus, while the equal protection claims in the cases may share a
"generic form," the specific elements of the claims in the cases do not overlap.
In such a situation, generic discussions of equal protection theories cannot suffice to
bring actually divergent applications of those theories under a consolidated umbrella. See
Repetitive Stress Litig., supra, 11 F.3d at 373 (noting flaw in the case when judge
substituted general discussion of mass tort litigation for nuanced analysis of the cases
at bar).
[page 8]
Both cases also bring claims under the Guarantee Clause, U.S. Const., art. IV, 4,
cl. 1. The claims in the two cases are not so clearly divergent, but consolidation of
these cases for consideration of their Guarantee Clause Claims presents a serious risk of
confusion and distraction. Without going into more detail than required for the instant
question, it may be noted that, while there are mutually agreeable fundamental indicia of
what constitutes a "republican form of government," see, e.g., Reynolds v Sims,
377 U.S. 533, 544 (1964); Baker v. Carr, 369 U.S. 186, 242 (1962); Duncan v. McCall, 139
U.S. 449, 461 (1891); United States v. Cruikshank, 92 U.S. 542, 552 (1876); Minor v.
Happersett, 21 Wall. (88 U.S.) 162, 175-76 (1875), the full scope and limits of the
Guarantee Clause are not explicit in the Clause itself, see William M. Wiecek, The
Guarantee Clause of the U.S. Constitution 300-303 (1972).
Thus, for example, while the Plaintiffs in Twenty Citizens would agree with the
position taken in Alexander that the Guarantee Clause is a receptacle for the citizens'
right to vote in Congress (Alexander Complaint at 163-66), the Plaintiffs in
Twenty Citizens would dispute the position taken in Alexander that the Guarantee Clause is
a receptacle for assertion of any right in any entity other than the citizens themselves
(as seen in Alexander Complaint at 167). Further, as will be discussed in more
detail below (at pp. 12-14), the Plaintiffs in Alexander would contend that the
institutional entity popularly called the "home rule government" is not a
republican form of government, so would contend that Congressional imposition of the
"home rule government" would be an instance of Congressional violation of the
rights of the citizens of the District to a republican form of government. These
particular disputes need not be raised, addressed, or resolved for the Court to decide the
respective cases, unless the cases are consolidated.
In short, while it would certainly be interesting to debate the ramifications and
merits of the respective theories underlying the respective claims, the Court is not the
place for that debate. A [page 9] review of the respective Complaints provides serious
reason to pause, for consolidation would engender far more work of the Court than required
otherwise. Consolidation of these cases for the purposes of common consideration of the
substantive claims promises to extrapolate the two separate debates into at least three
debates (a debate in each case between the Plaintiffs and Defendants in the case, plus one
between the two groups of Plaintiffs). Thus, judicial economy would suffer if these cases
were consolidated.
Finally, although "judicial economy strongly favor[s] simultaneous resolution of
all claims growing out of one event," Ikerd, supra, 435 F.2d at 204, the respective
claims of the Plaintiffs in these two cases actually grow out of separate
"events" (insofar as cases asserting violations of constitutional rights can be
analyzed according to common law theories of causation). The claims in Twenty Citizens
arise from two "events:" (1) the failure of Congress to treat the citizens of
the District of Columbia the way it has treated all other citizens over whom it has the
same power, with the result that fundamental rights are infringed and (2) the failure of
Congress to guarantee to the Plaintiffs republican forms of government. On the other hand,
the claims in Alexander arise from one multiplex "event:" the failure of
Congress to respect the Plaintiffs' fundamental, intrinsic right to vote in Congress.
There does not appear to be much, if any, overlap.
The claims in these two cases simply cannot be boiled down and compared under a common
template of relevant generic fact, such as was discussed in Johnson v. Celotex Corp., 899
F.2d 1281, 1285 (2nd Cir. 1990), citing In re All Asbestos Cases Pending in the United
States District Court for the District of Maryland, (D.Md. Dec. 16, 1983) (unpublished en
banc opinion setting out eight categories of generic fact to be assessed in deciding
whether to consolidate asbestos cases). There are no categories for comparing the denial
of rights asserted under the respective equal protection theories of the two cases or for
comparing the denial of republican forms of [page 10] government asserted in the two
cases. Neither can it be said that the respective claims arise from any common core or
acts or events, or that the Plaintiffs in the respective cases will proceed by offering
the same evidence. Compare Young v. City of Augusta, Ga, 59 F.3d 1160, 1169 (11th Cir.
1995) (affirming denial of consolidation of cases brought against City by two individuals
claiming deliberate indifference to prisoners' medical needs at the same jail). Lacking
actual clear correspondence between the unique facts of the two cases, the two cases
should not be consolidated. Repetitive Stress Litig., supra, 11 F.3d at 373. Consolidation
of these cases would make it impossible for the Plaintiffs in the cases to prosecute their
respective claims, working a denial of due process, because the claims would necessarily
loose their "separate and distinct" natures. Garber, supra, 477 F.2d at 716;
accord Brooklyn Nary Yard Litig., supra, 971 F.2d at 853; Malcolm, supra, 995 F.2d at 353.
As to Analysis of the District Clause in the Cases
Each case, of course, must address the powers of Congress under the District Clause of
the Constitution, art. I, 8, 17, cl. 1, [footnote 3: The Plaintiffs in Twenty
Citizens distinguish the two Clauses in art. I, 8, Paragraph 17 for the purposes of
their arguments, so refer to the Paragraph () as part of the citation] which provides
that Congress has the power "[t]o exercise exclusive legislation in all cases
whatsoever, over such district . . . as [has] . . . become the seat of the government of
the United States[.]" The construction of the District Clause given in Alexander
diverges distinctly from that in Twenty Citizens. Were the cases forced to proceed in
tandem, "unmerged," Synar, supra, 626 F.Supp. at 1379, the construction given in
Alexander would nevertheless necessitate more debate and discussion than will probably be
required to analyze the issue in Twenty Citizens.
[page 11]
For instance, the Plaintiffs in Twenty Citizens certainly don't deny that the District
Clause provides some power to Congress over the physical place the District of Columbia.
Likewise, they agree that the courts have always said that District Clause provides
"ultimate legislative authority over the District with respect to matters that are
particular to the District" (quoting Alexander Complaint at 102). But the
Plaintiffs in Twenty Citizens oppose any suggestion that, because of the power conferred
under the District Clause, "the citizens of the District of Columbia are subject to
the authority of the Congress in the same way that citizens of states are subject to the
authority of their respective state legislatures" (id.). Thus, while the Plaintiffs
in Twenty Citizens would also agree with the assertion in Alexander that the citizens of
the District are entitled to be represented in the Congress, the Plaintiffs in Twenty
Citizens assert that they are also entitled to a real state legislature, which Congress is
not.
Empirically and legally, Congress does not resemble a state legislature in any way,
shape, or form. In what State do the citizens of other States elect the legislature? In
what State does the legislature include even one member elected from another State?
Congress is decidedly not a republican form of "state" government for the
District of Columbia, not only because the citizens of this pseudo-state are not
represented in Congress, but more because representatives of other (real) States are
present in -- and dominate -- this pseudo-state legislature. See David A. Vise, Vouchers
Out of D.C. Budget Bill, Washington Post, Oct. 8, 1998, at B8 (quoting Rep. Moran (of
Virginia), complaining that the District's budget process "is a closed process
[comprised of] two guys from North Carolina sitting down and working things out to please
them").
The power which Congress holds by virtue of the District Clause is power over a place;
this power does not trump the rights of the people who live in that place.
"Legislators represent people, not trees or acres. Legislators are elected by voters,
not farms or cities or economic [page 12] interests." Reynolds v. Sims, 377 U.S. 533,
562 (1964). In contrast to the portrayal of Congressional power in Alexander, the
Plaintiffs in Twenty Citizens assert that, while Congress has plenary power to rule all
places subject to Paragraph 17 of Section 8 of Article I of the Constitution, Congress has
no power to deprive the people who live in those places of any rights, privileges, or
immunities of citizenship. Neither does that power extend to granting any of those people
any special status which deviates from the privileges and immunities of citizenship
enjoyed by all other citizens of the United States.
In short, if these cases are consolidated, diligent and reasonable prosecution of the
claims in Twenty Citizens would necessarily entail challenges to the same power which the
Plaintiffs in Alexander depend on to effect their anticipated remedy (see Alexander
Complaint at p.58, 3-4). Certainly, this would entail far more debate and
analysis than would be entailed for independent resolution of the cases. To the extent
that this extended debate and analysis also burdened the Court, leading to any inclination
to prematurely curtail analysis to save time, consolidation would necessarily result in
denial of the due process rights of the Plaintiffs in Twenty Citizens to present their
claims on the merits. Garber, supra, 477 F.2d at 716; accord Malcolm, supra, 995 F.2d at
353; Brooklyn Nary Yard Litig., supra, 971 F.2d at 853.
As to Some Parties in the Cases
One of the named Plaintiffs in Alexander is styled "District of Columbia."
The Complaint in Alexander describes this Plaintiff as "a municipal corporation,
created by Congress as the government of the District of Columbia[,]" charged by
Congress to "execute[] laws of both local and national application enacted by the
Congress" (Alexander Complaint at 60). Alexander's identification of this
specific Plaintiff is confusing, however, since discussion of the issues in both these
cases requires a clear differentiation of (1) the physical place called the "District
of [page 13] Columbia" from (2) the persons who live in the "District of
Columbia" from (3) the various institutions which manage, administer, or govern the
"District of Columbia." To avoid confusion, the Plaintiff identified in the
Alexander Complaint as "District of Columbia" will be identified as the
"Municipal Corporation District of Columbia" in this memorandum.
The Municipal Corporation District of Columbia is an entity created by Congress. Pub.
L. 93-198, 87 Stat. 774 (1973) (as amended, repeatedly). According to the Complaint in
Twenty Citizens, this entity is not actually, constitutionally, and properly speaking a
"government," because it has no final determination over any governmental
matters (Twenty Citizens Complaint, 26-30, 91). Compare Metropolitan R. Co. v.
District of Columbia, 132 U.S. 1 (1889); Goode v. Markley, 603 F.2d 973 (D.C. Cir. 1979);
United States v. Jones, 527 F.2d 817, 821 (D.C. Cir. 1975); United States v. Knight, 509
F.2d 354, 361 (D.C. Cir. 1974) (all pointing out that the institutional entity
administering the District of Columbia has no indicia of a true government, such as
"sovereignty"). The Municipal Corporation District of Columbia certainly has no
final, dispositive power over matters committed to the federal government and it doesn't
even have final dispositive power over matters committed to (within the competence of)
state governments within the federal system. See, e.g., Pub.L. 93-198, 87 Stat. 774 at
601-604 (retaining in Congress the power to review, alter, or veto any actions
of the home rule government, including its budget, and delimiting other powers). Rather,
the Municipal Corporation District of Columbia is accurately defined as a unique federal
administrative agency. See District of Columbia v. Bailey, 171 U.S. 161, 176 (1898);
Metropolitan R. Co. v. District of Columbia, 132 U.S. 1 (1889); Crosen v. District of
Columbia, 2 F.2d 924 (D.C. Cir. 1924); 31 U.S.C. 2 (1970) (including the municipal
government of the District of Columbia among the executive departments, commissions,
boards, bureaus, offices, agencies, and other establishments of the [page 14] federal
government); Gregory E. Mize, A Guide to Deciphering the Laws of a Unique City-State
Legislature--The Council of the District of Columbia, 2 Potomac L. Rev. 1, 2 (1979);
Hearings on Self-Determination for the District of Columbia and Report of the Commission
on the Organization of the Government of the District of Columbia before the Subcomm. on
Government Operations of the House Comm. on the District of Columbia, 93d Cong., 1st
Sess., pt 1, at 121 (statement of Rep. Donald Fraser). Finally, this entity the Municipal
Corporation District of Columbia exists solely by the grace of Congress, District of
Columbia v. John R. Thompson Co., 346 U.S. 100, 109 (1953); see 135 Cong. Rec. H4918
(daily ed. Aug. 2, 1989) (statement of Rep. DeLay), and what Congress giveth Congress may
take away.
Therefore, the same entity which is a Plaintiff in Alexander is a manifestation of
Congressional violations of rights at issue in Twenty Citizens. While the Plaintiffs in
Twenty Citizens are glad, as a political expediency, to be able to elect the members of
the Municipal Corporation District of Columbia, they would rather be able to elect members
of a government, which it is their right to do. This right is promised to them under the
Guarantee Clause of the Constitution, to participate in a government republican in form,
apart from Congress, for all matters within the competence of state governments.
If these cases were consolidated, the Plaintiff named "District of Columbia"
in Alexander would be placed in the position of being a Defendant under the claims
presented in Twenty Citizens. [footnote 4: Another named Plaintiff in Alexander is Dr.
Joyce A. Ladner. Although Dr. Ladner is proceeding in her personal capacity (see Alexander
Complaint at 30) and although the Plaintiffs in Twenty Citizens have the highest
respect for her personally, Dr. Ladner was previously a member of the District of Columbia
Financial Responsibility and Management Assistance Authority, which is a named Defendant
in Twenty Citizens. In light of this fact, consolidation of these cases would place Ms.
Ladner at risk of also being cast as a Defendant. This would not only be unfair to her,
but would violate the rule that cases should not be consolidated when it would place a
party at risk of having to choose between aggressive prosecution of her claims or
aggressive defense against other claims. Dupont, supra, 336 F.2d at 196; Atkinson, supra,
297 F.2d at 575-76; Henderson, supra, 118 F.R.D. at 441; Capstraw, supra, 15 F.R.D. at
268-69.] This result is sufficient ground, in itself, to not consolidate these cases.
Dupont, supra, [page 15] 366 F.2d at 196; Atkinson, supra, 297 F.2d at 575-76; Continental
Bank, supra, 304 F.Supp. at 230; Capstraw, supra, 15 F.R.D. at 268, 269
CONCLUSION
When these two case are carefully examined on the basis of their unique facts,
Repetitive Stress Litig., supra, 11 F.3d at 373, it is clear that the ostensible
relationship between these two cases is completely different from those in which
consolidation is frequently considered and ordered, where the complaints in the cases
contain "basically identical averments of violations by the Defendants" and the
relief sought "is substantially the same" and the evidence likely to be
introduced by the parties "would be similar." See, e.g., Barcelo v. Brown, 78
F.R.D. 531, 535 (D.P.R. 1978). In this case, the Complaints contain differing averments,
the relief sought is radically divergent, and the evidence to be introduced will
necessarily differ.
The only thing these cases have in common, in the final analysis, is a general concern
with representation in Congress. This general concern resolves, however, into two distinct
and independent claims which are at odds with each other, when the claims are examined on
their respective merits. Compare Repetitive Stress Litig., supra, 11 F.3d at 373
(reversing consolidation orders where "sole common fact" among the cases was
"a claim of injury of such generality that it covers a number of different ailments
for each of which there are numerous possible causes"). Although some particular
defenses may also be offered in both cases (for instance, whether the House and Senate
Officers are immune from suit for one reason or another), these defenses will necessarily
be decided on the basis of the unique, different facts of each case. [page 16]
When weighing the "interest[s] of judicial convenience against the potential for
delay, confusion and prejudice that may result from . . . consolidation" in this
case, Bank of Montreal, supra, 117 F.R.D. at 532, the scales tip against consolidation. In
this case, there is some danger of delay, there is considerable risk of confusion, and
there is complete assurance of prejudice to the Plaintiffs in both cases. Worse,
consolidation of these cases threatens due process, because it would merge the
"separate and distinct" claims of the respective Plaintiffs, Garber, supra, 477
F.2d at 716, into an unstable, artificial concoction, based not on any coherent identity
of claims as presented, but based on the assumption that all equal protection claims and
all Guarantee Clause claims are fungible with all pleas for representation in government.
Compare Brooklyn Nary Yard Litig., supra, 971 F.2d at 853; Malcolm, supra, 995 F.2d at
353. The claims in these cases are not interchangeable and consolidation would deny their
respective proponents' rights to present their individual cases. Repetitive Stress Litig.,
11 F.3d at 373.
Therefore, for all the reasons set forth in this memorandum, the cases Alexander, et
al, v. Daley, et al, Civil Action No. 98-2187-LFO, and Twenty Citizens of the District of
Columbia v. Clinton, et al, Civil Action No. 98-1665-LFO, should not be consolidated.
Respectfully submitted,
George S. LaRoche
APPENDIX
PLAINTIFFS' EXPLANATION OF TITLE
"Twenty Citizens of the District of Columbia v. Clinton, et al."
in Civil Action No. 98-1665-LFO
The twenty Plaintiffs in Twenty Citizens of the District of Columbia v. Clinton, et al,
Civil Action No. 98-1665-LFO have employed (and wish to continue to employ) a case title
which is unusual, but not without precedent or foundation. The caption employed by the
Plaintiffs follows the exact form of the full caption in the Complaint in the case,
shortened in accord with the common practices of the court and bar, without violating any
law or rule, and supporting all purposes and interests of the law, of the federal judicial
system, of the Court, of the parties in this case, and of the public.
The only provision of the Federal Rules of Civil Procedure which states a mandate
concerning captions of cases is Rule 10(a), which provides that:
[e]very pleading shall contain a caption setting forth the name of the court, the title
of the action, the file number, and a designation [of pleadings allowed] as in Rule 7(a).
In the complaint the title of the action shall include the names of all the parties, but
in other pleadings it is sufficient to state the name of the first party on each side with
an appropriate indication of other parties.
(emphasis added) Rule 7(b)(2) extends Rule 10(a) to "apply to all motions and
other papers provided for by these rules[,]" so Rule 10(a), in effect, applies to all
documents filed in a case.
Two paragraphs of Local Rule 106 add certain information to the quantum of information
required in Fed. R. Civ. P. 10(a). Local Rule 106(e) adds the requirement that "the
first filing by or on behalf of a party shall have in the caption the name and full
residence address of the party[, except w]here a person is sued in an official capacity,
[when] the person's official address shall be used." Local Rule 106(f) adds the
requirements of "a heading under the caption describing the nature of the pleading,
motion or other paper" and "the initials of the judge to whom the case has
[Appendix page 2] been assigned" shall be added following the case number. Other than
these provisions, the Local Rules do not augment Fed. R. Civ. P. 10(a).
In the instant case, the caption of the Complaint contains the name of the court and a
designation of the document as a "Complaint." The caption also provides the full
title of the action, which is:
Twenty Citizens of the District of Columbia, namely: Lois E. Adams, 2712 Wisconsin
Ave., N.W. Apt. 508, Wash., D.C. 20007; Rev. Mr. Floyd H. Agostinelli, 1801 Kearney St.,
N.E., Wash., D.C. 20018; Acie L. Byrd, Jr., 3601 Wisconsin Ave., N.W., Apt. 603, Wash.,
D.C. 20016; Lawrence Alston Gray, 600 14th St., N.E., Wash., D.C. 20002; Rev. Graylan
Scott Hagler, 6101 16th St., N.W. Apt. 927, Wash., D.C. 20011; Lawrence Benjamin Harris,
1327 Holbrook St., N.E., Wash., D.C. 20002; Richard H‚bert, 2801 Adams Mill Rd.,
N.W., Wash., D.C. 20009; Wimberly Higgs, 232 14th Pl., N.E., Wash., D.C. 20002; Bette J.
Hoover, 626 Quebec Pl., Wash., D.C. 20010; Anise Jenkins, 1715 4th St., N.W., Wash., D.C.
20001; Rahim Jenkins, 1238 Southern Ave., S.E., Wash., D.C. 20032; Marilyn Killingham,
1100 6th St., S.W., Wash., D.C. 20024; Dujuan Ricardo Malachi, 5554 Chillum Pl., N.E.,
Wash., D.C. 20011; Lamont B. Mitchell, 1651 38th St., S.E., Wash., D.C. 20020; Loree H.
Murray, 1134 7th St., N.E., Wash., D.C. 20002; Rev. Anita O'Brien-Russell, 660 Acker St.,
N.E., Wash., D.C. 20002; Antoinette Quick, 2610 Naylor St., S.E., Apt. 301, Wash., D.C.
20020; Sam Smith, 3149 Newark, N.W., Wash., D.C. 20008; Manuel Uriarte, 1304 Girard St.,
N.W., Wash., D.C. 20009; and Malcolm L. Wiseman, Jr., 1228 Crittenden St., N.W., Wash.,
D.C. 20011, Plaintiffs[,] versus William Jefferson Clinton in his official capacity as The
President of the United States, 1600 Pennsylvania Avenue, N.W., Washington, D.C. 20500,
Robin H. Carle in her official capacity as The Clerk of the United States House of
Representatives, Room H-154, The Capitol, Washington, D.C. 20515, Wilson Livingood in his
official capacity as The Sergeant At Arms of the United States House of Representatives,
Room H-124, The Capitol, Washington, D.C. 20515, and The District of Columbia Financial
Responsibility and Management Assistance Authority, One Thomas Circle, N.W., Washington,
D.C. 20005, Defendants[.]
Thus, the Complaint names twenty individual plaintiffs and four defendants, providing
full residential or business addresses for each, in accord with Fed. R. Civ. P. Rule 10(a)
and Local Rule 106(e). At the time of filing, the Clerk of the Court provided the
information required by Local Rule 106(f), which was added to the information provided in
the caption of all documents.
In all documents filed after the Complaint, the Plaintiffs have captioned the case with
the title of the case stated as "Twenty Citizens of the District of Columbia,
Plaintiffs[,] versus William [Appendix page 3] Jefferson Clinton, et al,
Defendants[.]" Plaintiffs submit that it is allowable to title this case in this
manner (in all documents subsequent to the Complaint), because it does not violate the
Federal Rules of Civil Procedure or the Local Rules of this Court. Further, it serves the
purposes of the Federal Rules of Civil Procedure and comports with general theories of
American judicial practice to use the title suggested by the Plaintiffs.
The last clause in Fed. R. Civ. P. 10(a) (as interpolated under Rule 7(b)(2)) provides
that "in [all filings subsequent to the complaint] it is sufficient to state the name
of the first party on each side with an appropriate indication of other parties."
(emphasis added). Thus, Fed. R. Civ. P. 10(a) provides at least some degree of latitude in
titling cases by use of the term "sufficient," submitting the matter to at least
some degree of prudent discretion.
A simple grammatical construction of Fed. R. Civ. P. 10(a) indicates that the
"default" caption for all documents in a case would be the full caption as set
out in the complaint in the case (as defined and required in the Federal Rules of Civil
Procedure and the Local Rules), but that documents filed after the complaint may be
captioned with a shorter title, according to a simple and (in itself) meaningless or
neutral convention, eliminating the names of all parties but the first party listed as
plaintiff and defendant, respectively. In other words, Fed. R. Civ. P. 10(a) provides and
counsels for a title for the case which is accurate (i.e., which indicates the actual
parties before the court) and convenient (i.e., which is shorter than the full title under
which the case might have been filed). If the title of the instant case is shortened
according to the simple grammatical construction of Fed. R. Civ. P. 10(a) and following
the usual conventions, it would be a convenient title, but it would actually be far less
accurate than the title nominated by the Plaintiffs, not only in direct content but also
in that it would not serve the purposes of the Federal Rules of Civil Procedure or general
theories of American judicial practice. [Appendix page 4]
The purposes of the various rules concerning captions are to insure that the public
knows the facts of the lawsuits pending in its courts, including the names of the parties.
See 4 Moore's Federal Practice 3d, 17.10[5] at 17-34 (Matthew Bender ed. 1998);
compare Craig v. Harney, 331 U.S. 367, 374 (1947) ("A trial is a public event. What
transpires in the court room is public property."); Doe v. Rostker, 89 F.R.D. 158,
160-61 (D. Cal. 1981) (discussing "the public nature of American courts of
law."). At the same time, it is generally recognized that "[t]he caption of the
case is not controlling in determining the parties" in the case. Greenwood v. Ross,
778 F.2d 448, 452 (8th Cir. 1985); see also Blanchard v. Terry & Wright, Inc., 331
F.2d 467, 469 (6th Cir.), cert. denied, 379 U.S. 831, 85 S.Ct. 62, 13 L.Ed.2d 40 (1964)
("[T]he caption is not regarded as containing any part of a plaintiff's
claim."); Nicol v. Baird, 234 F.2d 691 (D.C. Cir. 1956). Therefore, since the title
facilitates the public's access to and knowledge of the case, the content of the title
might deviate a bit from the norm when the deviation provides unique information and
access to information about the case.
If the (short form) title of the case contains only the name "Lois E. Adams,"
the public knows little about the case and far less than it would know using the title
chosen by the Plaintiffs. For instance, there is no "Lois E. Adams" in the phone
book, [footnote 1 in Appendix: There is no "L.E. Adams" in the phone book
either. There are seven "L" Adamses, but none of them are the "Lois E.
Adams" in the title of the case as set forth in the Complaint. Ms. Adams is in the
phone book, by the way, but under her nickname, which is the name by which her friends
know her.] nor is the individual whose legal name is "Lois E. Adams" generally
known to her friends and business acquaintances by her exact, legal name. Thus, the
convention of titling a case according to the first name of a person in a list provides no
information to the public about the actual parties in this case than does the title chosen
by the Plaintiffs in this case; it actually leaves them in greater ignorance. [Appendix
page 5]
If the title of this case is limited to "Lois E. Adams, et al," the
identities of the other nineteen Plaintiffs are actually hidden further from public view
and knowledge than they would be if the form suggested by the Plaintiffs is employed. The
form suggested by the Plaintiffs refers directly to the Plaintiffs as a panel of
individuals, sharing the single most important key status which gives rise to the matters
which are at issue in the case (yet which status is not itself at issue in the case). By
identifying the Plaintiffs in this case by their cumulative status as "twenty
citizens of the District of Columbia," the public knows the most important single
thing about any individual Plaintiff as relevant to this case, as well as the most
important single thing about all the Plaintiffs together as relevant to this case: that
each is and all are citizens of the District of Columbia.
The members of this panel of Plaintiffs diverge from one another on one ground or
another or for one reason or another, whether it be race or sex or income or place of
residence or political affiliation or aspiration for the future of their city. The one
identifying attribute they all share and which unites them is their status as citizens of
the District of Columbia, with the conditions and attributes which follow from that
status. The title "twenty citizens of the District of Columbia" refers to these
twenty independent persons, indistinguishable in the one aspect specifically referenced in
the title: their citizenship in the District of Columbia.
Further, there is something wholly accidental in the choice of one name out of twenty
to identify the Plaintiffs in this case. In the title as set forth in the Complaint, the
Plaintiffs are listed in alphabetical order. They could have been listed in the
chronological order by which they approached counsel to ask him to bring this suit, which
would have put a different name first. They could have been listed in the chronological
order in which they actually signed representation agreements, which would have put yet a
different name first. They could have been listed in geographic groupings according to
their Ward of residence in the District of [Appendix page 6] Columbia, which would have
put another, different name first. They could have been listed in the order of their ages,
as elders and leaders of their community, which might have put still another, different
name first. In short, they could have been listed in any number of ways which might have
had at least as much and probably more relevance to the public and served the interests of
the public in knowing something about the Plaintiffs in this case. Of all ways that the
names of the Plaintiffs could have been listed, alphabetical order is, perhaps, the least
indicative of anything about any Plaintiff as a person or as a Plaintiff in this case.
It should be noted, in passing, that the Plaintiffs do not seek use of a fictitious
name in place of their real names. To the contrary, the Plaintiffs wish their names to be
matters of public record, so the Complaint includes their full names and addresses, in
accord with Local Rule 106(e). Some Plaintiffs have also been referred to by name in
making various points in documents filed since the Complaint. See, e.g., Plaintiffs'
Opposition to the Motion of Defendant District of Columbia Financial Responsibility and
Management Assistance Authority to Dismiss the Complaint as to It (Aug. 4, 1998) at 8-9;
Plaintiffs' Reply to the Reply Memorandum of Defendant District of Columbia Financial
Responsibility and Management Assistance Authority to the Plaintiffs' Opposition to the
Authority's Motion to Dismiss the Complaint as to It (exhibit 1 to Plaintiff's Motion to
File Out of Time (Aug. 27, 1998)) at 18. Others will be referred to by name, if and as
appropriate, in the course of this case. But the Plaintiffs are in this case as a company
of independent citizens, yet subject to the actions at issue in the case on the basis of
their shared trait of citizenship in the District of Columbia. The title "twenty
citizens of the District of Columbia" does not hide the identity of any plaintiff any
more than the arbitrary choice of "Lois E. Adams" for the title, and reveals
more, to boot. [Appendix page 7]
It should also be noted that the Plaintiffs are not arguing that the Court should
defer, in any possible instance, to a party's submission of a title for a case. For
instance, it would seem clear that a title should not assume a disposition on the merits
(i.e., "the victorious Plaintiffs"). Rather, the alternative championed by the
Plaintiffs in this case would be a very rare event. The simple observation that it is so
rarely encountered indicates there is little risk of opening Pandora's box.
While it is always possible that the privilege of listing parties for the title of a
case might be abused in some cases, that possibility alone is not sufficient to curtail
the privilege for all, because a party willing to abuse its rights under the rules will do
so without regard to limits drawn to minimize the possibility of abuse. Rather than draw
lines in anticipation of unseen abuse, the privilege should be respected until, in
specific cases, it is abused. In short, if there should be limits, they must be drawn on
the basis either of additions to the Federal or Local rules, or they should arise from a
case in which a title is manifestly improper for a clearly discernable reason in the Rules
of in public policy, neither of which is the situation in this case.
Finally, while a title of convenience such as "twenty citizens of the District of
Columbia" is uncommon, it is not unprecedented. For instance, a complex case was
conducted in the Second Circuit under the title "F.H. Krear & Company v[ersus]
Nineteen Named Trustees." See the reported opinions at 810 F.2d 1250 (2d Cir. 1987);
776 F.2d 1563 (2d Cir. 1987); 124 F.R.D. 59 (S.D.N.Y. 1989). And the District of Columbia
Circuit entertained "Indian Lake Estates, Incorporated v[ersus] Ten Individual
Defendants, et al." See 350 F.2d. 435 (D.C. Cir. 1965), cert. denied, 383 U.S. 947
(1966) (certiorari denied under the same name). [Appendix page 8]
Insofar as counsel has been able to determine by contacting original trial counsel in
these cases, these titles referred only to unincorporated agglomerations of individuals.
In other words, the parties in these cases had not formed any legal unions under the names
"Nineteen Named Trustees" or "Ten Individual Defendants." Each name
simply referred to the group as a group.
In conclusion, the Plaintiffs suggest that, in certain, occasional cases, prudential
discretion augurs in favor of a title which deviates from the common practice under Rule
10(a), but which does not in any way violate Rule 10(a) or any of the other rules of the
Court. For these reasons, the Plaintiffs prefaced their individual names and addresses in
the Complaint with the phrase "Twenty Citizens of the District of Columbia,"
which preface serves as a legitimate (albeit unusual) title of convenience for all
documents in the remainder of the case.
Respectfully submitted,
George S. LaRoche