|
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
REPLY OF PLAINTIFFS IN ADAMS V. CLINTON
TO DEFENDANT DISTRICT OF COLUMBIA FINANCIAL RESPONSIBILITY
AND MANAGEMENT ASSISTANCE AUTHORITY'S OPPOSITION
TO PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
The District of Columbia Financial Responsibility and Management
Assistance Authority ("Control Board") has filed a Memorandum in Opposition to
the Plaintiffs' Motion for Summary Judgment, along with a Statement of Material Facts said
to be in dispute. The Defendant collates its arguments and proffers under three headings;
although the Defendant's collation distorts the issues in the case, the Plaintiffs will
reply to the Defendant's arguments according to its collation.
A: Rebuttal to Alleged "Issues and Errors as to
the Status of the Authority"
The Control Board opens its argument with the statement that the
Plaintiffs "want to have it both ways" as to the "status" of the
Control Board (p.5, citing 12 & 95 of the Plaintiffs' Statement of Material
Facts). The assertion is based on misstatement construction of the Plaintiffs' statements
and on a selective reading of the Act creating the Control Board (Pub. L. No. 104-8, 109
Stat. 97 [page 2] (1995)). The Plaintiffs' assert that the Control Board is an agent or
instrumentality of Congress, despite the fact that Congress defined the Control Board act
as "not . . . a department, agency, . . . or instrumentality of the United States
Government" (Public Law 104-8, 101(a)). Paragraphs 12 & 95 of the
Plaintiffs' Statement of Material Facts encapsulate this assertion as to the Control
Board's "status," as does a rational reading of the various Acts empowering the
Control Board. [footnote 1: The Plaintiffs' argument as to the "status" of the
Control Board was set out in the Plaintiffs' Opposition to the Control Board's Motion to
Dismiss (filed Aug. 4, 1998) at 15-20.]
But for Public Law 104-8, the Control Board would not exist. Every
power of the Control Board is conferred by Congress and can be withdrawn by Congress. All
this makes the Control Board an agent or instrumentality of Congress. While Congress might
legitimately define the Control Board to be independent of provisions of other statutes
passed by Congress, Congress cannot confer an immunity from the Constitution, which
Congress itself does not have. Congress is bound by the Constitution; so are its
creations. See U.D.C. Faculty Ass'n. v. Bd. of Trustees, 163 F.3d 616, 620-21 (D.C. Cir.
1998) ("[The] Control Board's power over the District is limited in a way that
Congress's is not; Congress's power is bounded only by the Constitution, whereas the
Control Board's power is [also] bounded by the parameters set forth in its enabling Act
and subsequent legislation."). Thus, the Control Board is bound by the Constitution
and responsible for federal obligations under the Constitution. [footnote 2: Though the
Control Board says Congress can create an entity independent of constitutional
"obligations on the federal government" (Opposition at 6), it is unlikely the
Control Board really means it (could Congress could empower it to hold slaves or beat
confessions out of witnesses?).]
In Exhibit B to the Declaration of Daniel A. Rezneck, attached to the
Control Board's Statement of Facts (the "Confidential 1995 Memorandum"), Mr.
Rezneck admits the substance of the Plaintiffs' assertions as to the "status" of
the Control Board. He states that the Control Board performs "federal [page 3]
functions" (id. at 1-2) and implements "Congressional purpose[s]" (id. at
4) in governing the District of Columbia. And Mr. Rezneck also admits that the Control
Board is independent of and not accountable to the various entities in the "home
rule" government. He says "there can be no doubt that the Authority, whatever
its location in the governmental structure devised by Congress . . . is carrying out
federally-defined and mandated functions[.]" (Id. at 5; emphasis added). And Mr.
Rezneck also explains why Section 101(a) of Pub. L. No. 104-8 (defining the Control Board
as "not . . . a department, agency, establishment or instrumentality of the United
States Government") should not be taken to mean Congress intended to free the Control
Board from constitutional obligations, saying that this provision "appears to have
been done for budgetary reasons so that the activities of the [Control Board] would not
impact the federal budget or the federal budget deficit." Id. at 1-2.
Also as to the Control Board's "status," Mr. Rezneck Declares
that the Control Board "is not 'defined in the Act creating it as an entity of the
government of the District of Columbia.'" Declaration of Daniel A. Rezneck (attached
to Defendant's Statement of Facts) at 5, [footnote 3: Since Mr. Rezneck is General
Counsel to the Control Board, Plaintiffs would stipulate that he has first hand knowledge
of facts about the Control Board's actions, which are or might be pertinent to this case
(but the Board would have to waive attorney-client privilege if Mr. Rezneck is to be a
fact witness). But the Plaintiffs object to the suggestion Mr. Rezneck is an
"expert" on the legal status of the Board. His stellar personal accomplishments
(see Defendants' Exhibit A) do not enhance his knowledge of the facts or give him
preeminence in the law of the case.] citing Section 305(5) of the Act for the proposition
that "[t]he term 'District government' means the government of the District of
Columbia . . . except that such term does not include the [Control Board]." But Mr.
Rezneck ignores Section 101(a) of Pub. L. No. 104-8, which provides that the Board
"is established as an entity within the government of the District of Columbia"
(emphasis added). These clauses are readily reconciled: the Act creates the Control Board
to exercise powers of government within the District of Columbia, Shook v. D.C. Fin.
Responsibility and Management Assistance Auth., 132 F.3d [page 4] 775, 784 (D.C. Cir.
1998), but when the Act refers to the "District government" as such, the Act
refers only to those entities other than the Control Board exercising governmental powers
in the District of Columbia. Thus, the Act can refer to and distinguish the home rule
government and the appointed government known as the Control Board.
In sum, the Control Board presents no facts or arguments which
countervail the Plaintiffs' showing in support of summary judgment that the Control Board
is an agent or instrumentality of Congress, created to exercise governmental powers over
the District of Columbia (Plaintiffs' Statement, 12). The Control Board's proffers
actually reinforce the Plaintiffs' factual showing.
B: Rebuttal to Alleged "Issues and Errors as to
the Powers of the Authority"
In previous cases, the Control Board has argued that its powers are so
great that the courts have characterized the Control Board's claimed powers as
"awesome," "unchecked," "unbridled," and
"sweeping." See Shook v. D.C. Fin. Responsibility and Mgmt. Assistance Auth.,
132 F.3d 775, 778-79 (D.C. Cir. 1998); U.D.C. Faculty Assn. v. Bd. of Trustees, 163 F.3d
616, 622 (D.C. Cir. 1998); and U.D.C. Faculty Assn. v. Bd. of Trustees, 994 F.Supp. 1, 10
(D.D.C.), aff'd, 163 F.3d 616 (D.C. Cir. 1998) (respectively). Such claims are now in the
record of this case by way of Mr. Rezneck's Confidential 1995 Memorandum (Control Board's
Exhibit B), where Mr. Rezneck says the Control Board has "far-reaching,"
"sweeping powers over the District government" (id. at 5 & 2-3).
But the Control Board's novel assertions here that its powers are de
minimis are irrelevant, since the degree of the Control Board's power is not at issue. The
Plaintiffs' rights are violated because the Control Board has any governmental power,
howsoever slight. By giving the Control Board any governmental powers, Congress violates
the Plaintiffs' rights under the equal protection provisions of the Constitution and under
the Guarantee Clause of the Constitution; as an agent or instrument of Congress, the
Control Board joins Congress in those violations (Plaintiffs' Statement at
70-71, 91, [page 5] 93, 95, 97). [footnote 4:These claims were argued at length in the
Plaintiffs' Opposition to the Control Board's Motion to Dismiss (filed Aug. 4, 1998; at
13-22 and 38-42 (addressing the question of "standing," which is a logical way
to address these issues).] Mr. Rezneck fully confirms the factual predicates of the
Plaintiffs' claims. [footnote 5: Further, the Control Board's rebuttal of the Plaintiffs'
Statement of Facts is based on misquotation of the Plaintiffs' statements. For instance,
on pages 6-7, the Control Board asserts the Plaintiffs said "'every action' of the
local government 'is subject to absolute review and veto' by the [Control Board]"
(citing 91 of the Plaintiffs' Statement). In that paragraph, the Plaintiffs plainly
state that every action of the home rule government is subject to absolute review and veto
by Congress, which can act on its own or through the Control Board; the focus is on
Congress.] See Confidential 1995 Memorandum, generally.
The Plaintiffs do not assert that the Control Board has a specific
power under its authorizing Acts to confer "voting rights" or to apportion
representation to the citizens of the District of Columbia on its own (see Plaintiffs'
Statement at 106). Rather, to the extent that any "power" of the Control
Board is implicated in the remedies the Plaintiffs seek, it is the power to get out of the
way, can cease administering any aspect of governmental business of the District of
Columbia, howsoever great or small. The Control Board has certainly not shown that it is
impossible for the Control Board to cease exercising governmental power over the District,
nor has it shown that it lacks the "power" to cease exercising any governmental
power over the District. All the Plaintiffs ask is that each entity in the government of
the United States which has any power take whatever step or steps it can (even if the step
is to refrain, itself or under injunction, from acting) to facilitate the move by the
residents of the District of Columbia towards full citizenship.
On a different note, the Confidential 1995 Memorandum also supports the
Plaintiffs' statement that Congress' actions "divested" the home rule government
of certain governmental powers (Plaintiffs' Statement at 27, 28, 91). The home
rule government had certain powers, then Congress created the Control Board and gave it
"far-reaching, sweeping" powers over the District [page 6] government
(Confidential 1995 Memorandum at 5 & 2-3). Congress didn't need to amend the Home Rule
Act, specifying such-and-such a power was being taken away from the home rule government,
in order to effectively "divest" the home rule government of its powers (such as
they were). The Control Board's sweeping powers over the home rule government relocate
actual governmental power from the home rule government to the Control Board. This is
divestiture in fact, for the fact of who exercises governmental power is what matters, not
arbitrary definitions of power-holders.
In short, the Control Board has presented no facts which controvert the
Plaintiffs' showing that the Control Board has the "power" to withdraw from
governing the District of Columbia, which would move toward remedies for the claims at
issue in this case.
C: Rebuttal to Alleged "Issues and Errors as to
the Actions of the Authority"
The Control Board concludes its Opposition to the Plaintiffs' Motion
for Summary Judgment with a terse denial of what the Board calls "blunderbuss
allegations" as to the "actions" of the Authority. But the Control Board's
denials are wholly inapposite, since they seek to rebut straw arguments. Plaintiffs have
said before (in their Opposition to the Control Board's Motion to Dismiss) that their
claims against the Control Board arise from the Board's role in perpetuating the status
quo of the District of Columbia, with the consequences that the residents of the District
are fenced out of American political life (with the sole exception of the 23rd Amendment).
Congress could have treated the citizens of the District of Columbia in
a manner similar to that in which it has treated all other citizens who have been subject
to identical powers of Congress under the Constitution, but it has not. Congress could
have admitted the District of Columbia as a State or reunified it with an existing State,
but Congress has done neither. [footnote 6: Technically, there is a third alternative
which would obviate the injuries at issue in this case: Congress could convert the entire
District of Columbia into a non-residential "national park." If there were no
residents of the "park," Congress could do what it wanted with it, without
violating any rights to equal protection or the Guarantee Clause of non-existent residents
(although other rights could be violated in the process of creating this national park).
This alternative, like statehood and retrocession, has always been available to Congress.]
Rather, Congress has chosen [page 7] to perpetuate the status quo, to keep the District of
Columbia as a colony under its absolute sovereign power, which means Congress has to
administer this colony.
Thus, Congress' failures to act are not the sole issues in this case,
because Congress cannot maintain the status quo by inaction alone. To maintain and
perpetuate the status quo, Congress must actually do many things. Thus, this case also
involves overt actions Congress has taken to administer the District, to perpetuate and
maintain the status quo, infringing the rights of the Plaintiffs.
Creation of the Control Board is one such "action," and the
Board's actions administering the District perpetuate the District's dependent status,
which leads to violation of the Plaintiffs' rights. Every overt "action" of the
Control Board perpetuates and maintains Congressional control of the places where these
Plaintiffs live and work. The Control Board, in other words, is an overt expression of
Congress' choice to maintain the District as a colony. The Control Board is part of the
"fence" Congress uses to continue to fence the residents of the District of
Columbia out of apportionments, see Carrington v. Rash, 380 U.S. 89, 94 (1965), out of
full citizenship.
Again, the Control Board itself provides proof of this pattern of
facts. Exhibit C attached to Mr. Rezneck's Declaration is Report Number 96 of the House of
Representatives, 104th Cong., 1st Sess. (1995) ("House Report"). The House
Report reveals that, "[i]n proposing to create a financial control authority . . . ,
the Committee [of Congress] has considered a variety of other mechanisms for financial
relief . . . [including] retrocession of the District of Columbia to the State of
Maryland." House Report at 15-16; see id. at 18. The House Report thus makes it clear
that the Control Board was intentionally imposed on the District of Columbia as an
alternative to other action which would [page 8] have resulted in respect for the rights
of full citizenship which are at issue in this case; that alternative was
"retrocession" of the District to Maryland (see House Report at 15, 18). Another
alternative would have been admission as a state, although Congress did not consider it;
and yet another alternative would have been conversion of the entire District of Columbia
into a non-residential national park. While this case is not about the alternative merits
of these alternatives, it is about Congress' choice to perpetuate the dependent, colonial
status of the District of Columbia, with the result that the citizens of the District are
stripped of a plethora of basic rights of citizenship. The Control Board was created to
facilitate continued Congressional control of the District, which is to perpetuate the
status of the District. The Control Board allows Congress to avoid dealing with the larger
problems, allows Congress to keep the District of Columbia as a sort of colony, allows
Congress to continue to deny full citizenship to the residents of the District.
Conclusion
The Control Board exists for purposes which are explicit in the Acts of
Congress creating the Board, which are explicit in the panoply of options actually before
Congress when the Control Board was created, and which are explicit in the history of
Congressional treatment of the District of Columbia and other places under identical
powers of Congress. Congress created the Control Board to facilitate its continued,
absolute control over the District, which results in violation of the rights of the
citizens. Their rights are violated as much by the Control Board in its governmental
presence as they are by Congress in creating the Control Board to perpetuate its control
of the District.
The Control Board does not proffer any reason whatsoever, much less any
compelling governmental reason, for the District of Columbia to be treated differently
from the former portion of the District of Columbia south-west of the Potomac River or
from the federal enclaves (or from the continental territories or from the entire rest of
the United States, for that matter). Neither does [page 9] the Defendant proffer any
argument controverting the Plaintiffs' claims to the benefits of the Guarantee Clause,
art. IV, 4, cl. 1. Therefore, the Court may properly declare the rights of the
citizens and may enter the injunctions against the continued tenure of this governmental
device.
Respectfully submitted,
George S. LaRoche
|