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 Every power of the Control Board is conferred by Congress and can be withdrawn by Congress.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,