Gary v. United States

other reasons a new trial for and while PRYOR, Judge, Before NEBEK- Chief argues that he entitled be resen- Cole FERREN, ER, MACK, NEWMAN, BEL- Pee tenced for this and other reasons. SON, ROGERS, and TERRY Associate heroin in- possession convicted Judges. (D.C.Code 33-541(a)(l) tent to distribute Opinion Judge for the court Associate one (Supp.1984)). He contends NEWMAN. invalid, unsevera- house veto veto, ble, that without the one house and Concurring opinion Judge by Associate Rule Act would not have been Home NEBEKERatp. 836. passed Congress. He thus contends Opinion concurring dissenting in part and government of part Judge p. by Associate MACK at authority to enact the statute was without 849. (District violating. he was convicted Concurring statement Associate Substance Columbia Uniform Controlled Judge p. BELSON 33-501 to -567 Act of D.C.Code §§ (Supp.1984)). We hold that none of Concurring opinion by Judge Associate appellants is entitled to relief. p. TERRY at NEWMAN, Judge: Associate I principal presented

The issue for decision Immigra impact in these cases is the History Chadha, tion & Naturalization Service within what Self-government existed 919, 103 77 L.Ed.2d 317 Dis- were boundaries to become (1983), Congress” on the one “House Maryland in 1778 trict of Columbia provision of the veto D.C. Self-Government territory to the Virginia in 1779 ceded and Act, Reorganization and Governmental to enable the location United States (1981) (“Home 1-201 to -295 D.C.Code §§ Potomac, at river capital on the nations Act”) upon consequences Rule and the of the east- the mouths place some between appeal in these cases. We convictions on Connogocheque.1 mayor-council ern branch government. and In mayor The Congress passed Organic Act,2 appoint- and council were presidentially ed, subject city counties, formed the to Senate into two Wash- confirmation. This government form ington Alexandria, continued until the provided enactment Home Rule Act which is presidentially appointed judicial officers. issue in these cases.8 3,May 1802,3 The Act of incorporated the city Washington mayor- and created a II system government. council bicam- popularly eral council was elected Legislative Vetoes in the mayor presidentially appointed. Home Rule Act composition of the council was Rule sepa- Home Act contains two (although bicameral), revised it remained provisions rate con- —that the mayor was to be elected both 233(c)(1) tained in and that contained chambers May of the council. The Act of 233(c)(2). 233(c)(1)provides Section for 15, provided 18204 popularly a elected veto of certain acts of the of District Co- mayor and bicameral council. government lumbia (including certain voter approved referendums) by initiatives and 1871, step In first backwards from Congress adopting “a concurrent resolution self-government local was taken. Con- disapproving 233(c)(2) such act.” Section gress, by 21, 1871,5 Act February of provides: Georgetown, City unified the of entities In the of any act case such transmitted Washington of and County of Wash- respect Chairman with act ington “municipal a corporation.” create 22, 23, 24, codified in Title or aсt such governor appointed by A president was shall effective after a certain [become only leg- but one chamber of the bicameral ... if 1 House ... of time] islature popularly Beginning elected. adopt does not disapproving a resolution 1878,7 right 18746 and culminating in such act. of citizens of the of District Columbia respect It is with to the “1 House participate in the who election those Congress” provision veto that we must be govern would them was abolished. The concerned. government presidentially-ap- became three pointed Commissioners, one of whom was III Corps Engineers be member Army. Thus, of the U.S. re- situation Immigration & Naturalization mained until 1967. Service v. Chadha 1967, using authority his of executive The presented issue in Chadha as stated reorganization, the opinion President established a in the of the Court was 16, 1790, 28, 130, July 1. Act of history ch. 1 For analysis Stat. a more detailed of the amended, 3, 1791, 17, Columbia, governance 1 Act of March ch. Stat. of the District of see 214. Home Rule the District Columbia 1973- 1974,Background Legislative History and H.R. 2. Act of 27, 15, 1801, 2 Feb. ch. Stat. 103. 9056, Culminating H.R. Bills 9682 Related the District Self-Government 3. Act of 3, 1802, 53, May 2 ch. Stat. 195. (Comm.Print Reorganization Governmental Act 1974) (House Committee on the of Co- 4. Act of 104, May ch. 3 Stat. 583. 1974) Legislative lumbia cited as [hereinafter History]. Depuy, Bringing De- Newman and 21, 1871, 5. Act Feb. 16 419. ch. Stat. mocracy Colony: to the Nation’s Last The Dis- Act, Am.U. trict Columbia 24 Self-Government 20, 1874, 6. ofAct June ch. 116. Stat. (1975). foregoing L.Rev. The historical summary generally 7. Act of June tracks that contained ch. 102. Stat. Green, publication. C. Wash- latter See abo ington: Hbtory Capital A provides 8. The Home Rule Act for an elected mayor and an elected unicameral council. particular Congress might constitutionality provision ty have 244(c)(2) Immigration improvident, Na- oppressive, enact or ill-con- Act, 1254(c)(2), tionality Chadha, autho- U.S.C. sidered measures.” rizing Congress, by one House of resolu- The at 103 S.Ct. at 2782-83. U.S. Ex- pointed tion to invalidate the decision re- out that the bicameral Branch, pursuant ecutive quirement importance of no less and it Attorney delegated by Congress legislative help insure that measures States, the United to allow General of carefully had been considered. Id. 462 U.S. particular deportable alien to remain 948-49, 103 at at S.Ct. States. the United holding sweep- Chadha broad Chadha, supra, 462 U.S. at 103 S.Ct. most, undoubtedly if ing and it invalidates

at 2770. all, provisions veto enacted Chadha, supra, Court found the one-house by Congress. See J., (Powell, to be unconstitutional be- at at S.Ct. the bicameralism and and, cause violated concurring), id. I

presentment requirements (White, J., of art. dissenting). impact It provide: Constitution which Act now on the Home Rule to which we granted turn. All Powers herein

shall be vested in a States, consist of a which shall IV Representatives. a House of Senate and to Applicability Chadha the of I, [Art. § 1.] Home Rule Act Every passed Bill which shall the have Admittedly by every action taken Con Representatives House of and the Sen- determining legislative. The gress not ate, Law, shall before it become a be not form of the action but factor is the presented to the the President of United legislative in whether it is character. Cha States; I, 7, ... cl. [Art. 2.] dha, at аt S.Ct. U.S. Order, Every Resolution, to or Vote Chadha, presented in 2784. On the issue the of Concurrence the Senate use the one house the Court found the of Representatives may House of be neces- legislative in essentially purpose to veto be sary (except question Adjourn- on a legislative This character was and effect. ment) presented shall be the President the that demonstrated fact Chadha States; the and before At Congress required have could not Effect, approved take Same shall shall be Chadha, deport torney absent General him, him, being disapproved by or legislative provisions, it unless repassed be shall two thirds of requiring depor separate legislation passed Representatives, ac- Senate and House of 952-53,9 at at 2784-85. tation. Id. S.Ct. Limitations, cording Rules and I, prescribed in the Case of a Bill. [Art. Likewise, powers involved 7, cl. 3.] provision legisla Home Rule Act veto are character, fact. effect and Absent legislative The Court held that all acts tive provision, once the Council of Congress to the Presi- the veto presented must Mayor have Columbia and the passage after before becom- District of dent bicameral delegated powers their ing properly law- exercised law. “The President’s role sections of the District making process promulgate new also reflects the Framer’s Code, Congress have could not propensi- of.Columbia efforts to check whatever careful reading of a fair Supreme We believe that note S.Ct. 9. The Court also took people rights rights out- legislative and duties this means veto was because affected branch, i.e., legislative Con- legislative people side the national gress outside the and duties Chadha, supra, 462 itself. branch. U.S. ever, just overridden new legislatures these sections of Code as the state must legislation (which procedures passing without follow the of bicameralism and President) presented pur- presentment required by the state constitution,11 pose. Congress, governed one which is Thus the house veto Constitution, by the United Home is the same States must Rule act for all relevant follow the Art. I. It not purposes demands of is also as the one house veto in Chadha. persuasive Congress delegated just constitutionally It is defective power legislate “exclusive” for the Dis- meeting requirements of Art. I. I, trict Columbia in Art. 8 cl. 17. “[I]t suggested It has been that when Con- history is clear from the gress legislates for the District of Colum- that the word employed ‘exclusive’ was require- bia it meet the Art. I need not any possibility eliminate that the special relationship ments due to the power Congress over District towas Congress to the District of Columbia and ceding be concurrent with that of the plenary power over it.10 states.” Thomp- District Columbia powers granted It is true that “the [to Co., 100, 109, son U.S. obviously over District] (1953). 97 L.Ed. 1480 pow- different in from the kind other broad plenary power Congress Congress: Congress’ pow- ers conferred to incapable saving Columbia er over the District of encom- provision. the veto passes authority government, “ full has said that subject ‘over no conceivable thus, necessarily, the Executive and is the more powers Judicial Legislative.” as well as the complete than it is over’ admission Pipeline Northern Co. Construction Bell, 787, 792, aliens.” Fiallo v. Co., Pipeline Marathon Yet, (1977). Chadha, the Court found 102 S.Ct. 73 L.Ed.2d 598 plenary power that this could not overcome point This no statement does more than out the need for to follow bicameral regard that with to the District of Colum- presentment procedures pro- of Art. I bia, Congress sits full akin exercising plenary power cedures when legislature. “Congress ‘may to a state ex- through legislation. role The of the Presi- ercise within the District all in legislative process dent was dis- powers legislature of a State cussed Chadha. State, might long exercise within the so ... salutary upon It establishes check as it any provision does not contravene legislative body; guard calculated to ” Constitution United States.’ faction, community against the effects of States, 389, Palmore v. 411 U.S. United any impulse precipitancy, or of unfriend- 397, 1670, 1676, 93 342 S.Ct. 36 L.Ed.2d public good may ly happen to (1973) (citation omitted). However, Con- majority body.... to influence a of that gress’ position legislature” a “state does primary conferring to The inducement exempt “single, not following it from power question upon the Executive finely wrought exhaustively con- himself; enable him is to to defend sidered, procedure” required Art. I. secondary one increase is to the chances Chadha, 951, supra, 462 U.S. at 103 S.Ct. community against in favor of the at 2784. haste, through passing of bad laws inad- vertence, legislatures required State are design. not or No. Federalist (A. requirements Lodge meet the I of the at Art. 73 458 ed. [] [H. 1888] Hamilton). Constitution the United How- States. See, e.g., Voluntary, Langley, 10. United States v. 11. See State v. A.L.I.V.E. 112 Wash. 606 P.2d 23, Justices, 1984); (Alas.1980); States D.L.Rptr. Opinion v. (April 801 769 121 McIntosh, 552, 20, (1981); State ex Wash.D.L.Rptr. (April rel. 112 789 N.H. 431 A.2d 783 Manchin, 1984); Intervenor, (W.Va.1981). v. Barker 622 Brief of District of Columbia. 279 S.E.2d

821 948, the unconstitution- Chadha, 103 next determine whether at S.Ct. U.S. can be severed from the re- provision al particular rele This has at 2783. or the Home Rule Act whether mainder of whose to the District vance provision is unsevera- the unconstitutional voting representation have no citizens portions or the Home Rule Act ble and thus Congress. either House thereof must fall. provisions in the are four There allow one House Con- Constitution which Chadha, the Court reaffirmed subject not gress to act with force law Buckley v. Va the doctrine enunciated presentment require- the bicameral and leo, 1, 108, 612, 677, 96 S.Ct. U.S. (a) Repre- Art. I: the House of ments of Champlin (1976), L.Ed.2d 659 Refin given power to alone was sentatives Comm’n, Corporation ing Co. I, 2, (b) 2, impeachments. Art. cl. initiate § 567, 559, 76 L.Ed. 1062 52 S.Ct. given power to con- the Senate alone was (1932), provisions are to be invalid following impeachment duct trials that without severed unless it “evident” con- charges initiated the House and to legislature not provisions, those I, 5; (c) following trial. Art. cl. vict provisions. remaining have enacted the given final Senate alone was reviewa- Chadha, supra, 462 U.S. at pres- power approve disapprove or to ble recognized at the Court S.Ct. 2774. While 2; II, appointments. Art. cl. idential an elu inquiry that such an is sometimes (d) given alone was unre- Senate one, recognized presumption sive negotiat- ratify treaties viewable remaining provi severability where the II, ed the President. Art. cl. alone, sions, standing “fully operative “Clearly sought the Draftsmen Id. at 934, 103 S.Ct. at 2775 as a law.” House, special powers on the inde- confer Corpo Champlin Refining Co. v. (quoting House, pendent of other or of the Presi- Comm’n, supra, 286 U.S. at ration dent, they unambiguous so in explicit, did 564). has stated in As Chadha, supra, 462 U.S. terms.” context, principal the “cardinal of stat omitted). (footnote S.Ct. at not is to save and utory construction by Congress exercising action taken Richardson, 403 U.S. destroy.” Tilton v. provision is authorized one house veto 2091, 2098, L.Ed.2d 91 S.Ct. exceptions. these We find (1971) opinion), (plurality quoting pro- one house of Corp., Laughlin Steel NLRB Jones & vision in the Home Rule Act unconstitution- 615, 621, 81 L.Ed. 57 S.Ct. al.12 cases, applied As to these veto, absent the one house issue is whether V pass the have refused Home Rule Act.13 Severability Act does not contain The Home Rule Having held the one-house veto in the However, as the Su- unconstitutional, severability clause. Act must Home Rule we Opinion and Order in In its Memorandum 13. use of the veto cannot be sanctioned The case, that the one- the trial court held repeal the Cole construing of the it as an amendment or fatally but infected was unseverable house veto only delegated powers Home Rule Act. the authority of Columbia of the District statutes, repeal of no less than "Amendment reject government criminal laws. We to enact enactment, Chadha, with Art. I." must conform Act analysis. Home Rule does 954, (foot- supra, 462 U.S. at 103 S.Ct. at 2786 grant authority Council of the separate omitted). delegated Congress has these note respect to criminal District of with legislative powers the District to the Council of Rather, distinguished laws. from other laws delegation of Columbia and must abide generally District of Co- authorizes the the Act legislatively Id. at or revoked. until it is 955, altered legislation. §§ D.C.Code lumbia to enact 103 S.Ct. (1981). -227 822 held,

preme sition, structure, has “the ultimate jurisdiction deter of the severability rarely of will mination turn on judicial system; local ap- Presidential presence or absence” of such a clause. pointment judges of local with advice Jackson, 570, v. 390 U.S. United States 585 Senate; plan- and consent federal 27, 1209, 27, n. 88 S.Ct. n. 20 L.Ed.2d ning agency planning review of local de- (1968). Rather, the issue remains one cisions; protection of a federal enclave of intent, “legislative presumption but buildings, grounds, core monuments and severability.” is in Regan favor v. Act; excepted Presidential con- — U.S. -, Time, Inc., 3262, 104 S.Ct. police trol over in emergency situa- (1984). 82 L.Ed.2d 487 tions; Congressional review Charter purposes we examine When amendments. Act, Home we no Rule have doubt that (cita- Brief Appellant Cole 40 n. 16 Act, veto, minus the one-house remains ful- omitted). tions ly operative as a law. stated as We legislative history. next turn among primary purposes its intention: presumption Given the favor sever- (1) “grant inhabitants the Dis- ability, upon party urging the burden powers trict of Columbia of local self- unseverability to establish that the veto (2) government;” greatest “to ex- legisla “was so essential to possible, tent consistent with the constitu- purpose tive the statute would not mandate, tional relieve have been enacted without it.” Consum legislating upon burden essentially local Energy FERC, ers Council America v. matters.” D.C.Code 1-201 U.S.App.D.C. 54 n. 673 F.2d (1981), Washington, See McIntosh v. (1982), 445 n. summarily sub aff'd (D.C.1978). A.2d purposes These Group nom. Gas Process Consumers to be provi- continue served absent veto Energy America, Consumer Council of invalidity sion. The of the one-house veto 1216, 103 77 L.Ed. 1402 does congressional not remove oversight. (1983).14 another way, party urging Put legislate The ultimate authority to for the unseverability must establish excision District of Columbia is vested in the Con- veto one-house would contradict the gress I, by art. cl. 17 the Constitu- purpose Congress. intent and The mere tion. The fact of authority this ultimate ‍​‌‌​​​​​​​‌‌​​​‌​‌​‌‌​​​​​‌​‌​‌​‌‌‌​​​‌​‌‌‌‌‌‌​‌‍debate, presence of albeit extended and l-201(a), reflected D.C.Code §§ heated, provide sometimes cannot the evi l-233(c)(l) (c)(2) D.C.Code §§ finding dence unseverability. to direct a provide legislative day layover for a of 30 Corp. Dyke, See F.2d Oil Gulf days Congress enactment (Temp.Emer.Ct.App.1984); EEOC v. government permit

local order Con- Bank, Inc., Hernando F.2d gress exercise authority. its ultimate (5th Cir.1984). The District of Co appellant And as says: Cole lumbia contends: Moreover, the Act contains numerous presumption severabili- favor of self-government controls that would ty applies particular force to an fully operative remain intact and after congressional provision. invalid offending severance clause con- definition, provision, Such a taining provision: one-house veto ul- procedural means to a substan- forward budg- timate over the District’s Note, et; goal. tive Severability Leg- See on substantive limitations the coun- Provision, legislative authority; Policy Analy- cil’s islative A federal Veto audit- (1984). ing of the District’s sis 97 Harv.L.Rev. opera- accounts and tions; (“The authority compo- procedural federal over the veto is a de- summary by 14. Policy Gas affirmance Natural Act of 1978 to have passage Court was in face of a dissent Justice White been "central" to the of the Act. Process Gas, provision he which found the one-house veto U.S. at S.Ct. at 3557. (1981)provides it that cannot stand itself: must that amendments vice always to be attached some substantive District of Columbia Charter become legislation.... provision Council, veto is passage by ap- effective after [T]he merely appendage ato substantive referendum, proval by in a the voters such, law_”). As presumptively it is approval by a concurrent resolution Con- subsidiary to ends it the substantive was involving gress. amendments to Acts Therefore, intended to foster. has law, Pee, subject says to criminal argued, been l-233(c)(l) two-house veto. D.C.Code § provisions sever veto the courts should contrast, Pee (Supp.1984). contends doing so frustrates the sub- that amendments to the “criminal law” congressional sidiary policy control. subject one- District of Columbia are If decides that the statute 1- pursuant veto D.C.Code house pro- not survive without its veto should 233(c)(2) “No Pee notes: clearer vision, Congress repeal is free to special connection limitation of this statute. particular (amending the power” criminal Id. law) possibly “could exist in statute point same clear Chadha explicit power than the cross-referral of the For, specifically the Court itself. stated appears to the veto as in this section.” that an unconstitutional at appellant Brief for Pee 21. if “presumed severable what remains is argument is on the Pee’s second centered ”, ‘fully operable as a law’ 462 U.S. at severability Act. absence of a clause 934, 103 2775, quoting Champlin at passed by He points out the bill Corporation Refining Co. v. Commis Senate, veto S. contained a one house sion, supra; 52 S.Ct. legislation passed over all the Council Court, deciding 564. The to sever the (except previously within matters provision, veto concluded that the statute power prior form of Commissioner “fully operative” because “Con enact); government severability and a gress’ oversight of the exercise of this passed, H. clause. The House bill delegation preserved all since such [ex * * * provision, no sever- contained no reported will continue to be ercise] ability grant of clause and no and, therefore, to it” “sur the statute in the area of criminal law. Council vives as a workable administrative mech points reported Pee out that the bill further anism without the one-House veto.” Id. out Committee and Conference U.S. at S.Ct. at 2775-76. ultimately contained authorization enacted [sic] government to enact criminal the local Intervenor, Brief District of Columbia at laws, a one-house veto over such contained laws, severability no criminal and had Appellant basically Pee advances three He contends that this indicates clause. (1) arguments unseverability: favor House the Senate and compromise between Congressional over- differential methods granted govern- to the local conferees that Act; (2) sight contained in the Home Rule only if enact criminal laws ment severability the absence of clause and they subject to a one-house veto were thereof; (3) legislative significance his- severability clause of a that the absence tory showing special of Con- concerns if the one- intentional insure that gress with the criminal of the District law invalid, grant then house veto was of Columbia.15 authority was also invalid. criminal law points out Home Rule Act Pee that the history Pee contends that three different methods of itself contains He his act contentions. congressional oversight. D.C.Code 1- buttresses Foundation, Amicus, joins Washington Legal part of contentions. these first passage traces evolution and authority Attorney no over U.S. and U.S. points the Senate He offices; bill. to the Senate (5) provision Marshal’s for auto- Report says that “the ‘bill further qualified judges; (6) matic retention of re- Congressional supervision insures of the quirement 30-day layover period of a for authorizing by legislative District’ a veto. congressional by review of all enactments type of veto of action Council will ‘[T]his government; (7) prohibition the local and insure to the ulti- continued against changes by to the criminal code mate of the the Dis- control affairs of government. local ” Legislative trict.’ History, House, Pee, The floor debate in says points 2726. He further debate floor centered general perti- around two areas opponents granting criminal authori- law (1) public (in- safety nent to these cases: ty government. Specifically to the local he crime, cluding police judiciary); and the attempts cites several amend bill (2) and oversight (including presi- federal Virgin- Senators. William Senator Scott legislative dential and vetoes as well as preconstitutional ia referred to riots review). general congressional A number that he contended led to the constitutional expressed members of the House con- provision vesting exclusive con- public cerns about and safety federal over- trol of the District Columbia in the Con- sight, among Const, being them the then Minority gress. I, 8, art. cl. 17. Con- Rep. Michigan, Leader Gerald Rep. Ford of stitution States. An amend- Rep. Ancher Nelsen of Minnesota Joel ment Senator offered Scott to transfer Broyhill Virginia. A series of amend- prison control of the District of Columbia One, proposed. ments were which was Lorton, Virginia, to federal control was adopted, restored to the President authori- defeated. Senator Norris of New Cotton ty Hampshire, rule, judges to nominate the local supporter pro- courts a home (the posed placed Committee the appointing amendment to the Pres- bill authorize authority appoint Mayor). Rep. ident to Broyhill District of Columbia Chief Virginia proposed of Police. Senator general Cotton was a one-house veto necessary view that this was presidential to insure the and a veto. This amendment safety members supported Nelsen, by Rep. Ancher other branches of government. federal ranking minority on member the Commit- This amendment was defeated. Columbia, tee on District of but was Also defeated. defeated was the substi- Pee legislative history next turns to the sponsored by Rep. tute bill Nelsen and bill. House The on the Committee which, Rep. Edith Oregon Green of accord- reported District of Columbia H.R. 9682 to Pee, ing to was based the Nelsen on Com- granted legisla- floor. This bill broad mission’s recommendations. The Nelsen- authority tive only contained a veto granted powers Green substitute narrow minority Charter amendments. re- government provided the local both port by seven committee stresses members presidential a and one-house veto. The public safety concerns as well as concerns passed House thereafter Committee on constitutionally the bill was infirm Columbia’s Substitute Bill provisions presi- since it no made for a with certain amendments. Conferees were days hearings dential veto. After three appointed by the House and Senate and the Rules, before the the Com- Committee five-day Conference Committee over a met prepared mittee on the District of Columbia period. reported bill back the Con- prior substitute bill. It differed bill in ference Committee contained au- points what Pee contends are seven (1) presi- thority government relevant to issues the local to enact before us: police two-year dential in an emer- criminal laws but after included; gency; (2) report presidential wait District of Co- (3) (4) Senate confirmation of Law judges; local lumbia Review Commission be sub- Congress. Diggs’ trenchant mitted The Com- Chairman observation Conference First, is notable for two reasons. it provi- mittee bill also contained a one-house satisfy is sufficient to criminal a alone sion as to law and two-house if” “What test. There can Court’s be no veto as to all other enactments. This bill judge importance of the better simpler proeedurally it also made obtain rule to successful home than that of veto than a floor vote on a one-house veto was new D.C. Chairman. Committee provided proeedurally for with two- Leaving first conference committee house veto. times, home he on rule modern had Report Conference Committee was The finally why discovered the Senate had terse or in the words of Pee “laconic.” It pass repeatedly able to bills while been two bills referred to and set restated the always stymied. the House had been compromises. explanation forth No Legislative The secret? veto. specific compro- given for appellant Pee Brief During floor debate in the Senate mises. Pee, exception all the other With Report, on the Conference Committee Sena- (the States, Cole) parties Gary Eagleton, of the Sen- tor Thomas Chairman amici, as well as the District of Columbia Columbia, ate Committee on the District of of Columbia and Division IV the District called attention to the differential methods Bar, urge provision legislative that the congressional oversight contained them, Among they advance a severable. Rep. Diggs, bill. Charles E. Jr. of Michi- arguments, most of which number we gan, Chairman of the House Committee on proceed now to summarize. Columbia, the District made similar re- particularly marks in the years prior . House. Pee In the 24 to the 93d Con- following by Rep. gress, passed points to the remarks the Senate had seven home did con- Diggs: rule bills. Most these bills Thus, the tain a one-house veto.16 Senate give In the and take of this conference history not show that it considered a does also, report Speaker, Mr. we note that legislative veto to an essential element strongest feelings some of on the of a Home Rule Act. part of some of set us have been aside. example, veto, congressional For on point severability next urging Those us very strong Senate was on that and as legislative during history the 93d I history matter I think learned Congress. legislative of fact time the real reason the Sen- Rule Act as enacted shows that Home first 4,000 pass pages, ate has been able to home rule in there was little dis- past expeditiously so because it veto. Since the cussion of the did, just body the House passed felt the other that as Senate bill before legislative history long long as first to the apparatus, there is a veto we turn bill. congressional process there is the Senate they might to be correct what consider bill, Report S.Rep. on its 93- Senate part legisla- misaction on the a local points to the one-house veto body, they tive then were inclined to be insuring means of the ulti- as a generous re- about it. So the veto was respect authority of mate misgivings despite in the some tained bill Columbia, particu- no placed the District pur- from the about it self-determination Legislative emphasis provision. this lar among body beyond. us suits During at 2726. floor de- History, supra, Senate, only one made Legislative History, supra (empha- Senator at 3050 bate In sum- veto. added). reference sis Pee asserts: (July 1507-21; History, v. Chadha” at Legislative in the Wake of I.N.S. See Ehlke, 1983) Congressional (report prepared Re Legislative Veto Provi- see also R. "The Congress). Library of Service District of Columbia Home Rule Act search sion bill, marizing provisions the the of govern- Senator the immediate for the Eagleton listed the ment of this area. one-house veto as a congressional insuring mechanism of over- Legislative History, supra, at 2758. sight. Legislative supra, History, at We proceedings now turn to the However, emphasized 2756-57. he the cen- reported by House on H.R. 9682. As out being (1) tral of purposes the bill to Committee, given the jurisdic- Council was legislat- of of relieve the burden laws, alia, tion over criminal and inter Columbia, ing (2) for the District of and provision there was no veto self-government the restore residents of by of passed Legislative laws the Council. the As he District. said: However, History at President, 303(b) provide

Mr. more is at stake H.R. than of 9682 did for a recited, previously the matters one-house local be- veto amendments to the Char- cause, S.1435, signed ter. In very dissenting report, by reflected in the the Committee, government local seven essence of will be man- members the those bill, opposed giv- who H.R. legislated by dated 9682 asserted that and once law, ing a one-house veto over Charter Amend- may- enacted into so that elected unconstitutionally deprived ments the Pres- city or elected can and an council make power guaranteed by ident of his veto the the vital decisions that affect the desti- presentment clause of of the art. I Consti- three-quarters nies of of million Ameri- tution. These members foreshadowed the can citizens. by issue the constitutional decided Legislative History, supra, at 2755. Cole, Thus, says Court in Chadha. “[i]t Mathias, the ranking Senator Charles mi- imagine hard member of the nority member the Committee Senate on House a dubiously viewed constitutional Columbia, spoke the in a District similar qua as the sine of the Act”. non reciting history vein. After the of home appellant propo- Brief for Cole at 42. The rule in District the of Columbia since its severability emphasized nents of also the inception, said: he lack of reference to the veto passage of this would bill restore Hearings days three Com- before self-government Capital local and Rules, Legislative History, mittee on su- would return to the citizens the Dis- pra, subsequent de- at and the Columbia, fаr long trict of after too Broy- feat on floor of the House time, privileges basic democratic substitutes, hill both of and Green-Nelsen every village, every which the citizens of provisions. one-house contained town, every city, every county, every noted, previously supra, As see enjoy. State now in- Committee on District of Columbia “return,” emphasize word Let me which, among other troduced a substitute nothing home rule is novel for because changes, delegation of authori- deleted the District of There was a Columbia. pertaining to ty modify certain statutes Mayor Washington, elected Rep. Brock Adams Wash- criminal law. Council, people. City There was a elect- ington, on Chairman the Subcommittee fact, people. very ed Operations Committee Government days, one, there was more than earliest Columbia, the subcommit- on the District small com- because each various Home Rule tee which had considered the prior that had munities existed question, that the deletion of author- stated establishment the District Columbia to certain ity respect to the Council municipal had its own elected officials. permit was to law revi- criminal statutes study report sion time to merely reestablishing So we commission History, Legislative on grassroots democracy which existed criminal statutes. in fact did create acquired Federal Government same and same Con- Law Revision Committee the District of Columbia prohibited gress that enacted the Self-Government modification Commission 24 for two Act. the Council Titles (later

years years). extended to four reports paragraphs Identical byAct Law Revision Commission particular- urging severability, Those on the Dis- and House committee Senate amicus, VI, of Columbia ly Division explana- give a detailed trict of Columbia in Bar, that, given the difference contend compromise on Conference tion of the bills, most rele- and House Senate Act: the Self-Government legislative history is that of the Con- vant (Public Under the Home Rule Act and the floor debates ference Committee 93-198, approved Law December body on the Conference Committee each 1973), will receive District Council Re- The Conference Committee Report. jurisdiction Code over the Criminal port one-house veto over certain retained a it of- twenty-four months after takes year as well as the two criminal matters January, fice in 1975. to certain moratorium on amendments Congressional In the course of con- explanation No provisions. criminal law legislation, of the sideration of this one of Report for the inclusion contained questions difficult was the issue most veto. the one-house authority the criminal granting of Report was debat- When Conference of of the District Columbia sections Senate, ed in the reference to self-govern- Code. Drafters veto is in the remarks of Senator one-house ultimately legislation settled ment differ- Eagleton where he summarized the calling the District arrangement disapproval ential methods charter acquire to authori- Council Columbia amendments, stаtutes, non-criminal ty over the criminal sections su- Legislative History, criminal statutes. years of Columbia Code two District pra, emphasis at 3114. His was however January, taking 1975. after office upon plenary authority granted understood, interim, it During the su- History, government. Legislative local would be a Law Revision Commission pra, empha- at 3113-15. Senator Mathias Congress, which by the created general purposes bill sized re- responsibilities as one of its have congressional oversight. Legislative Histo- recommending viewing reforms supra, at 3115. His ry, emphasis upon criminal sections. the Codes the constitutional 93-1076, Cong., 2d S.Rep. No. 93d Sess. budget art. I and the retained under control Cong., (1974); 93d H.R.Rep. No. History, Congress. Legislative (1974). Similar statements 2d Sess. as- urging severability at 3116-17. Those com- the Conference about basis this sert that was law revision Act were in the Self-Government promise compro- “keystone” any which was of the House. See on the floor made They say criminal mise law. Cong. (1974) (remarks Cong.Rec. legislative is further demonstrated passed by the Sen- Diggs). The bill was history Law of the District Cong.Rec. See without debate. ate to -405 Act, D.C.Code Revision §§ (1981). Amicus, Division VI of the District Amicus, VI, D.C.Bar at Division Brief says: Bar of Columbia between the establish- The connection consideration respect the House With Commission of the Law Revision ment Report, Committee of the Conference code author- granting of criminal particu- severability us point proponents clear the District is made ity to Colleague Letters” “Dear larly to two Revision history of the Law December Diggs, one dated Act, Rep. considered which was Commission tion, and one dated December 1973. In the given that the Council be the au- letter, Rep. Diggs says thority first the House subsequent to make whatever prevailed on every view almost instance modifications the criminal code as are objec- Conference. He sets necessary. forth twelve deemed Report tives that the Conference accom- Therefore, under the Conference Re- plishes, the first of which was: “Reserves port, prohibited the Council is from mak- right legislate ing changes the criminal code for two any subject_” Legislative time on His- years Subsequent after it takes office. tory, supra, No mention is made that, may the Council changes make of a veto. subject either House of days within 30 after the trans- The second letter reads follows: mittal Additionally, any act. Representatives, U.S. House of may bring Member such disapproving Columbia, Committee on the resolutions. Washington, D.C., 11, December I procedure feel this that sets the best Colleague: Dear Re- Conference protecting combination for Federal the port on the District of Columbia Home keeping interest while the Council local Bill, 1435, Rule S. is scheduled for action process making involved in the House Floor this week. Faithful govern. laws which will my responsibility, to I have a been Sincerely, strong passed pro- advocate of the House Diggs, Charles C. Jr. every prevailed visions and in almost in- Chairman, on the Committee is particular provision stance. There one District of Columbia which was in passed included the House Legislative History, bill was modified Confer- 3041-42. I particular ence. wish to that discuss Finally, argues the District of Columbia provision why Report the Conference Congress that the action of 98th varies, from passed the House bill. 1984, adding severability October a passed prohibited The House bill clause, 98-473, signed by Pub.L. No. making changes Council from in Ti- 1984, Oct. President on tles 23 and It D.C.Code. severability at a time issue felt was that since the District criminal prominently litigation has been raised has substantially code not been reviewed in the District of Columbia Courts both revised more seventy years, than and the States District provision hamper would constructive Columbia, significant the District revision the criminal code. Since when it issue of constru come[s] expected District Committee is act ing original Act. Self-Government very near future on H.R. a bill because amendment de This so I revi- which introduced to create a law earlier to be clares the intent law District, sion for the the Con- commission severable, specific on the particularly compromise adopted. The ference controversy at cases. issue these given revision will law commission Inc., Darlington, 358 U.S. F.H.A. v. The initially mandate to turn revision 84, 90, 79 S.Ct. L.Ed.2d report Zdanok, the D.C.Criminal Code and its rec- (1958); Company v. Glidden Congress. ommendations to the 82 S.Ct. Congress (1961); then May Dept. will have chance L.Ed.2d Stores Smith, revision make much needed F.2d Co. Cir.1978). long- (8th This take criminal code. should no also United States v. Cf. (6th Subsequent Cir. years. Tapert,

er than two 625 F.2d action, 1980) existing (An law appropriate seems consist- amendment support inference that concept does not ent of self-determina- passage prior meaning of the statute was incon- veto was not central amendment.) are satisfied sistent with Home Rule Act. We indeed concerned with while Intervenor, Supplemental Memorandum legislative authority over the its ultimate Columbia, District of Columbia, it not deem a District of did legislative history We note that central to the ex- one-house action on Pub.L. No. the Senate Likewise, authority. while it ercise Mathias stated: Senator apparent that a number of members of amendment will add a severabili- [T]he particu- and the House had both the Senate ty to the Home Rule Act. The clause public safety local lar concerns about Governmental Affairs Committee does code, the criminal to amend anything concerning to infer not intend legislative history far “evi- leaves it which enacted the the intent majority dent” that a of either the House concerning severability. Rule Act Home rejected the or the Senate would have However, indi- since the court Chadha they Home Rule Act if knew the one-house severability existence cated that the invalid, the mi- veto would be declared yardstick by one which it clause would be nority report of the House Committee on measure whether would prophetically the District of Columbia fore- legislation enacted absent defective have told. provisions, the Governmental Affairs Committee its inclusion in the believes unseverability, places urging Pee purposes. for future act is beneficial Rep. great emphasis on the statement of concerning Diggs the Senate’s sentiment during statement was made No similar supra, pp. 20-21. on a one-house veto. See House consideration on this enactment. conjunction Indeed, Massachusetts, that viewed in We think Rep. in Conte previous pas- history reporting with the Senate the Conference Committee's ac- 98-473, sage containing a on No. of home rule acts not tion what became Pub.L. veto, legislative supra p. as well as said: Rep. Colleagues” two “Dear letters Third, agreement conference includes neither of Diggs, supra, pp. 27-30 which to correct the defi- authorization bill legislative veto and makes reference ciencies in the District Home Rule Act the centrali- Supreme emphasizes of which created Court’s Chadha the latter legislative concerning ty decision of the D.C.Law Revision Commission’s comprehen- designed Congress to proposing veto.... role in to [T]his rewriting remove the cloud created the Chadha of the criminal statutes sive legislative Columbia, decision relative to the veto. Pee’s reliance the District of Rep. does not withstand Diggs’ statement Cong.Rec. 1984). (Oct. 10, H11974 scrutiny. view, In our while the fact that Further, “Congress’ to retain a desire one-house veto Home Rule Act includes a area cannot be considered Congress deemed it be a tells us that in the context viewed isolation but must be legislative history provision, the desirable ” provide self- Congress’ desire to making falls far short of “evident” District residents of the government it, Congress not have without of the burden and to rid itself of Columbia Recognizing passed the Home Rule Act. essentially mat- legislating upon local of what the determination as we must that Chadha, at ters. if” Congress done in a “what would have congres- regard, the In this 2775. S.Ct. at is, in situation the words to that quite similar appear sional intents Chadha, Court, su inquiry,” an “elusive with re- Supreme Court found at we 462 U.S. at 103 S.Ct. pra, private immigration bills Cha- spect history legislative are satisfied that dha. Id. the one-house affirmatively shows legislative

As we review history, we Thus one commentator has concluded myriad are satisfied it was the after close examination of the controls, other plenary such as the history: authori- ty Congress under I of art. the Constitu- right time seemed to for pas- be [T]he tion, budget, control over the other limita- sage of home legislation. rule To ar- tions on of the Council and gue that inability legisla- include a government local which were contained tive veto over Council actions would the House Committee on the District of have scuttled the entire legislation Substitute, 13-14, supra pp. Columbia see might overstating perceived po- 18, and which were included in the Home tency of that history device. The passed Congress, Rule Act as as well as use of the veto mechanism in home respect the limitation with to modification proposals, presence rule of other of Titles of the D.C.Code Act, political limitations and the pending report congressional climate at the time of D.C.Law Revision Commission which were consideration the Act would seem to by Congress viewed as the central mecha- make far from evident that insuring appropriate nisms federal over- delegate legisla- would have refused to sight. powers tive to a agree legislature if at

We with Cole and the told the time it could United States that it is hard not include the imagine that a veto.18 majority of either the Senate or House Ehlke, Legal Lanscape R. "The After INS “dubiously viewed a provi constitutional Possibilities," Litigation v. Chadha: Some sion as que the sine non of the Act.” CRS Review 826; Supra, appellee Brief Brief for appellee United States States in Nos. and 84-703 at 19-20. necessary While it is not to our conclusion VI regard, in this we note the action of the Retroactivity adding severability 98th The Court in Great Northern clause, 18, supra, at in the context of the Co., Ry. Refining v. Oil Co. Sunburst & Note, quoted views Severability of 358, 145, 287 53 77 U.S. S.Ct. L.Ed. 360 Legislative Policy A Veto Provision: (1932),continuing with such cases as Link 1182, 1196(1984), Analysis, 97 Harv.L.Rev. Walker, 618, letter v. 381 U.S. 85 S.Ct. 15, repeated supra, at and here: 1731, 14 (1965), v. L.Ed.2d 601 Den Stovall provisions The courts should sever veto no, 293, 1967, 388 U.S. 87 18 L.Ed.2d S.Ct. doing the when so frustrates subsid- (1967), concluding 1199 and with such cases iary policy congressional If control. 537, Johnson, as United States v. 457 U.S. Congress decides the statute should not 2579, (1982), 73 202 S.Ct. L.Ed.2d provision, Congress survive its is veto Stumes, 465 104 S.Ct. Solem v. U.S. repeal free to the statute. (1984), 79 L.Ed.2d 579 discussed the in a reject suggestion apply We Pee’s con- issues whether to new that we involved veto, legislative ruling retroactively, prospectively in a clude that without Con- or gress engaged in rejected would have home rule be- mix of the We have two. Democratic, analysis opinion of “a en cause distrust of the similar our banc (D.C. Johnson, government largely liberal and black that Mendes v. A.2d 1978). rul Reply appellant Recognizing would result.” Brief as we do that our Rather, agree ing on cases is a Pee at 3.17 we with the the Chadha issue these one, recognize we also says: United States when constitutional sion, applies only We 23 and 24 while further hold that Pee not entitled Titles violating language 33- plain D.C.Code he was convicted of D.C.Code relief since l-233(c)(2) (1981), 541(a)(1) (1981). provi- veto the one-house appropri- The test of the Su- should honor decisions Stovall-Stumes we It present cases.18 apply one to ate retroactivity on the issue preme Court each true and Stumes dealt that Stovall hold- prospectivity of constitutional versus implementing a “new rule” constitu- ings. rights,19 purports tional whereas Chadha determining general The rule for retroac- prin- abiding to an constitutional to .return holdings set tivity of constitutional was strayed in ciple from which has Denno, forth in v. U.S. Stovall by enacting legisla- fifty-two years the last (1967), 1967, 18 L.Ed.2d whose S.Ct. The authorizing legislative veto. tion recently were reaffirmed in So principles directly is one which affects distinction Stumes, supra. Stovall, v. lem countervailing con- “reliance” interest forth the formulation as follows: Court set cern to those served retroactive values “new,” guiding resolution of criteria application. rule is When [T]he (a) implicate [retroactivity] question authorities reliance of law enforcement a common upon practice the “old” carries purpose to be sеrved the new stan- of reasonableness: un- presumption sense dards, (b) extent of the reliance rule had been foreshad- less the “new” on the old law authorities enforcement owed, question the no one had reason to standards, (c) ad- the effect Denno, old. See Stovall justice of a retroactive ministration 87 S.Ct. at 1971. On other application of the standards. new that, hand, might argue the dis- one 297, 87 at 1970. Id. at one, practice is the “novel” approved itself Stumes, And court said “[c]om- slight, arguably be- the reliance interest is plete appropriate effect is most retroactive everyone concerned should have real- cause principle where a new constitutional is de practice invalid. ized that the signed accuracy to enhance the of criminal veto, however, With the trials.” Id. 104 S.Ct. at 1342. transparently no means practice recognized question enhancing that the issue has divided unconstitutional. “accuracy of criminal trials” is a mat scholars, courts, general, attorneys degree probabilities. Id. And ter legislative and executive branches of probabilities must in turn be “[s]uch Chadha, 462 government. federal INS weighed against prior justified reliance n. 976 & 103 S.Ct. impact of upon the old standard and the J., (White, (1983) n. 77 L.Ed.2d retroactivity upon the administration employed the dissenting). had Stovall, supra, justice.” fifty-two years, U.S. at for over covering principles legislation, these pieces 87 S.Ct. at 1970. With almost 200 defense, to analysis present ranging from national mind we turn to our areas waste, self-government to hazardous cases. Wade, terms, tional v. rule United States By expressed announced in John its United States v. 1926, 218, 1149 L.Ed.2d S.Ct. 18 son, 562, 87 U.S. 388 (1967), supra, 457 U.S. at 102 S.Ct. at 2594 263, California, U.S. v. 388 Gilbert context. We and limited to the Fourth Amendment — however, Louisiana, 1951, (1967), would recognize, U.S. -, v. L.Ed.2d 1178 that Shea 18 S.Ct. 87 1065, (1985), an 84 L.Ed.2d 38 and Gilbert prospectively. S.Ct. Wade apply applied principles John applies of United States v. to right to counsel rule that nounced son, supra, to review of Fifth Amendment direct v. Solem proceedings. pretrial identification 477, Arizona, Edwards v. 451 U.S. claims under Stumes, 79 L.Ed.2d 104S.Ct. 465 U.S. (1981). L.Ed.2d 378 We 101 S.Ct. (1984), in Ed that the rule announced held holding case not in this satisfied our 477, 101 Arizona, S.Ct. 451 U.S. v. wards teachings Shea and with the inconsistent (1981), applied prospectively. Ed L.Ed.2d 378 Johnson. suspect has invoked once wards held that right counsel, any subsequent con custodial general See initiated him. must be versation Denno, 19. Stovall v. 87 S.Ct. Stumes, supra, at 104S.Ct. 1345-46. ly Solem (1967), 18 L.Ed.2d 1199 held constitu- Chadha, District of eminently Columbia. See total and has been reasonable. 1003-13, 103 at U.S. at S.Ct. 2811-2816. challenged October no one (Appendix White, to dissenting opinion of House’s veto of the S.A.R.A. of J.). practice pervasive A so was at least Attorney 1981. The United States would patina enough cloaked with a solid of con duty have been if derelict his he did not stitutionality upon to make reliance prosecute rape knowledge and carnal under probity a reasonable course. statute; some because no contest was Moreover, even a rule appears veto, when made over the it was rea- ordering prac “new” in the sense of a new apply sonable to 22-2801. District one, prohibiting tice or an old it must be government gave of Columbia never notice upon premised right already implicitly potential criminal defendants that it con- existing within the Constitution. The cir sidered the S.A.R.A. of be in cumstances cases “Chadha” before force,20 that Act and never formed the ba- then, are, analogous us those in Stovall single prosecution. sis of a Under the Su- retrospectivity where the Stumes of a preme Court’s well-established rule of crim- new constitutional rule was considered. law, inal reliance that is both reasonable And ‍​‌‌​​​​​​​‌‌​​​‌​‌​‌‌​​​​​‌​‌​‌​‌‌‌​​​‌​‌‌‌‌‌‌​‌‍principle constitutional in points holding extensive toward a go volved does not to the heart of the against rule, retroactivity here, for a truth-finding function, but instead “a directly that does affect truth-find- rule, prophylactic designed implement ing Stumes, supra, function at trial. rights,” pre-existing Court (when S.Ct. at 1345 decision the Su- generally applied has not it retroactively. preme “clearly” has not been or “dis- Stumes, supra, 104 S.Ct. 1343. Cf. foreshadowed, tinctly” the reliance interest Walker, supra. Linkletter v. compelling against is a factor retroactivi- Here, “truth-determining process ty). at all trial” is not the issue. The elements way knowing many We have no how of the sexual offenses of which their re defendants would be entitled resentenc- spective appellants juries Gary convicted ing give if we were to our decision either the same under Cole are D.C.Code partial or total retroactiveness. We are (1981) 22-2801 and the S.A.R.A. of 1981. however, few, any, sanguine, if would At no time had the example, receive lesser sentences. For rape knowledge intended that and carnal Cole, inquired sentencing judge the trial Compare lawful. United States United counsel he could moot the Currency, States Coin & whether Chadha 1041, 28 L.Ed.2d 434 These by sentencing issue the defendant to no permissible range within sentences are more authorized than would have been Against of both statutes. their interests in Cole, Gary of 1981. Like S.A.R.A. of their sentences under reconsideration sentenced to no more than would have been sentencing provisions S.A.R.A. by that Act. buttressed authorized We are must we balance reliance bur few, any, if our view that receive justice. den on administration of Sto given provi- various lesser sentences vall, supra, 388 U.S. at 87 S.Ct. at sentence sions of D.C.Code for en- 1970-71. See, e.g., hancement. D.C.Code § (1981) (enhanced second con- sentence for effec Reliance on the continuous 22-104(a) (1981) (en- victions), tiveness of D.C.Code 22-2801 has been D.C.Code § published as law because United that in the not become effective We note the Act was Representatives disap- shortly had D.C.Register was transmit- States House after the Act 602(c)(2) proved prior "in accordance Congress, one-house veto. that Act ted to but to the D.C.Reg. of Columbia Self-Government On October of the District See 28 1981, however, Reorganization Act.” 28 published notice and Governmental the Council in D.C.Reg. D.C.Register that the S.A.R.A. of 1981 had States, (7th F.2d 218 felony), wary third and D.C. v. United hanced sentence for Cir.1979). (enhanced (1981) sentence Code § armed).

for crimes of violence while B) Gary hand, having conduct a the other On cоurt commit- Gary asserts that trial hearings request of resentence significant denying number his ted reversible error place significant burden on on the need for corrobo- would an instruction for Superior knowledge. justice rape and carnal administration ration as to com- argues United indi- that the trial court Court. The of the States He further brief his re- approximately denying error in that there have been mitted reversible cates present at the bench quest personally and carnal knowl- to be rape convictions jurors of individual there. during and that dire edge voir alone since October August 34 such approximately as of 1. Corroboration pending. prosecutions were Gary raped the that The evidence showed Second, any degree of give retroactivi- Gary’s complainant, 16-year-old female. thereby deciding ty holding, to our instruction was request for a corroboration law of the of 1981 constituted the S.A.R.A. this was reversible He contends denied. putative ef- District of States, Fitzgerald v. United error under repeal by Pub.L. putative date to its (en banc), fective (D.C.1982) A.2d 1295 ignore the require us to No. States, 358 A.2d 335 United Arnold v. that, Congress known the possibility if had banc). (en (D.C.1976) invalid, the one-house veto S.A.R.A. history pros of the and the Much might have overturned a man- been regard created rule and cons of the court consistent with the bicameralism ner major laid out ing corroboration was n I. presentment provisions article dissenting opinions Fitzgerald, ity and sum, purpose of when we consider the for this court’s Since the reasons supra. in this rule we announce the constitutional States, supra, holding in v. United Arnold of reliance and opinion, elements requirement we abolished where justice effect on the administration is in a mature female corroboration Denno, v. su- commanded both Stovall all sex volved, applicable to equally holding pra, and our en in Mendes age banc offenses, or regardless of the sex Johnson, that our deci- supra, we conclude we now abolish perpetrator, or the victim only, prospective should have effect entirely.21 sion requirement from the date of our decision. provided protections constitutional adequate in a sex case

the defendant are long- VII no requirement the corroboration Fitzgerald, purpose. a useful er serves Other Contentions C.J., (Newman, supra, 443 A.2d at A) Cole Arnold, supra, A.2d dissenting), and he to be cor- purpose is entitled Cole contends at 343. The asserted because, judge support another requirement before resentenced roboration complaining wit- misperceived credibility says, judge he trial test the distinguish find leading conviction. We There is no reason to his ness. evidence a mature female and See a mature no merit this contention. Brown between Cir.1980) (9th Nor there States, victim. male sex offense 610 F.2d 672 jury barriers logical trial reason to raise (reviewing not override court will ain credibility of a minor rely on it did not evaluation statement court’s require it do not where we offense invalid sex later shown prior conviction long have too Courts situations. defendant). La other Accord sentencing the Arnold, at 344. 358 A.2d properly us. See before 21. This issue 834 reports

“discounted by- Fitzgerald, sexual attacks (New 443 A.2d at 1309 man, C.J., children.” Fitzgerald, supra, dissenting). A.2d at 443 We conclude “[i]t (Newman, C.J., past long 1308 the time dissenting), quoting that this court should Peters, example jurisdic follow the of most of the Children AreWho Victims Sex- in country tions this totally and eliminate Assault ual and the Psychology of Of- outdated, vestiges the last this discrimi fenders, 30 Am. J. PSYCHOTHERAPY 398 natory (footnote rule.” at 1310 Id. omitt ed).22 (or in Corroboration sex offenses If trial judge believes addi- that an touching where sexual nature of the tional instruction is needed because of assault, see, it an e.g., makes Beausoliel v. circumstances, unique he may give one States, U.S.App.D.C. 71 which stresses the factors to be considered. (1939)), F.2d prospectively abolished following example The is an of such an opinion. from the this date of This now instruction: gives the homoge Columbia an (crime The nature of the crime of respect rule neous with to corroboration in charged) is such that the evi- substantive sex offenses. See United v. Shep States presented dence often consists pard, 186 U.S.App.D.C. F.2d conflicting testimonies of the defendant (1977).23 the complainant. Because this Jury Selection fact, you must examine the evidence presented After the jury process began, with selection care caution. defense request counsel made a that his credibility In addition proving present client be pro- at the bench when witnesses, you should consider spective jurors being questioned. were reaching number of relevant factors in judge trial request.24 refused this your may decision. These in- factors clude: judge proceeded voir dire questioned prospective the 52 (1) whether any delay by there was jurors at subsequent the bench to defend- complainant incident; reporting request. jurors, ant’s Out those 20 (2) complainant whether the a mo- had judge sponte sua removed jurors falsify charges; tive jurors Two of other cause. that came (3) improbable inconsistent or testimo- (Ju- accidentally. bench there were witnesses; ny by the No. 225 he thought ror knew one (4) evidence of facts and/or inconsist- after, questioning witnesses but some which support complainant’s encies he was determined that was mistaken since testimony. people two approximately were should consider one of You apart years age. ap- Juror No. decisive, your factors these but rather proached response the bench question, decision should be on the evidence judges anyone based “Did think the law factors, presented. These considered unfair in area?” No. stated whole, you weighing should assist he did not what the was and know law notions.) you. preconceived the evidence had no before subsequent note that to our decision in We further note that the trial court did not 22.We refusing giv- Fitzgerald, requirement independent err to instruct corroboration cor- finding, adequately supported en testimony of a roboration child victim record, complainant "mature was a prosecutions brought the D.C. under Title 22 of meaning Fitzgerald female" within legislatively Code has been abolished. See D.C. Arnold. (Supp.1985). tаk- § 23-114 Had S.A.R.A. Code effect, requirement en of corroboration trial, already the time of we had decided 24. At purposes in have been abolished for all States, (D.C. Robinson v. United 448 A.2d sex offenses. 1982). not affect her decision. Neither remaining jurors, 2 were would of the Out 90). (Nos. questioned her. jurors 60 and Juror counsel seated as home at the bench that his No. 60 stated juror Young in was called to The other burglarized his wife had and that had been having his after failed reveal the bench ques- purse snatched. The court then her computer specialist in the employment as a experi- his No. 60 on whether tioned Juror He retained police department. after prevent judging him from ences would assuring and defense counsel judge respond- fairly on the He based facts. case his would not be affected. that decision counsel “absolutely not.” Neither ed Young in also stated that The court Juror No. juror any questions. asked the prej- indication of had shown no defendant previous- at that he had 90 stated the bench took note of the fact that udice and ly cousin who testified in the defense of his peremptory had an unused defendant rape. This cousin was was convicted have been used one strike which could second-degree murder later convicted if questioned at jurors the two bench juror participate did in that but the not thought might there have been defendant open spoke No. 90 in trial. Juror twice being present not prejudice some his court, he said he had an uncle who once A.2d at Young, the bench. at spoke say he lawyer, the next time n. 290 & 6. protection type in service. he was some us, jurors In were the case before granting judge The trial erred including two who questioned at the bench request present at the appellant’s to be incorrectly there made no state- were has during voir dire. The defendant bench on fitness or the trial. that reflected ments trial, right present stages all to be only remaining jurors two of the Out including dire conducted at the bench. voir trial. One on defendant’s deliberated States, 483 A.2d 1135 Boone United open these, spoke twice Juror No. (D.C.1984)(en banc), and Robinson v. Unit oppor- limited giving appellant some court States, supra. ed demeanor. tunity to assess his error, Having there was we decided that case, Young, appellant still as in In this case to deter- must look at facts to use peremptory strike had an unused beyond a mine if the error was “harmless appel- if jurors these against either of two Robinson, supra, 448 doubt.” reasonable jurors’ pres- inkling had lant (citations omitted). have A.2d at 856 We we have said prejudicial. As ence would be using three cases the “harmless decided previously: analysis. In beyond a reasonable doubt” our decision we do not intend While these, require found the error two of we rights pro- any manner the trivialize States, reversal, su- Robinson v. United Robinson, us the facts before tected States, supra. pra, Boone v. immedi- appellant’s not indicate that do case, found the error In one we during the the bench presence at ate beyond doubt. harmless a reasonable remаining two brief examination States, 478 A.2d Young v. United changed the outcome have jurors would (D.C.1984). of the trial. Young, supra, to be the case We believe circumstances, must we Under these to the case are most similar whose facts pos- no reasonable there is conclude refused Young, the court before us. error contributed sibility that the present at request to be the defendant’s Chap- conviction. See appellant’s way questioned jurors were Twelve the bench. 18, 22, 87 California, man v. were of those the bench and two 17 L.Ed.2d jurors panel. jury One seated on (citations A.2d at Young, supra, 473 jail his brother was stated that retained omitted). robbery. She stated for bank We find that the trial error (S.A.R.A.). court’s sault Reform Act But beyond harmless majority opinion clear, a reasonable doubt. makes ante at 832 & fn. the 1981 Council action never

Affirmed. became law arguably and could not even simple law now. The in answer these two NEBEKER, Judge, Associate concur- cases is that repeal, there was no and the ring: pre-1981 provisions Code relating to sexual I concur in the majority result the reach- offenses in despite remain effect Chadha. deciding not, in however, es I cases. do would, therefore, I affirm the convictions join the majority’s holding in Part Y of the Gary and Cole because S.A.R.A. was opinion, question on the severability. It never enacted and 22-2801 was never § unnecessary is to decide the issue. In addi- repealed. tion, express I my must concern that the The regarding appellant situation Pee is majority, affirming in the convictions of somewhat different. No “veto” was exer- Gary, Cole, Pee, and has subordinated the cised over the Council enactment of D.C. perceived relevant facts each case to the 33-541(a)(l) (1984 Code Supp.), under § political critical—and theOn cor- —issues. which Pee possession was convicted of presented Gary, roboration issue I also heroin with intent to distribute. The stat- concur in holding our that an instruction duly promulgated. argues ute was Pee required. agree not I do not with that the statute is nevertheless invalid be- wandering beyond that issue by announc- cause the one-house veto cannot be severed ing that henceforth is corroboration unnec- self-government act: the whole essary involving in charges “sex offenses” must, therefore, fall, act and—with it—the complainants. immature authority of the Council to enact 33- § 541(a)(1). necessary I It is thus to consider and prospectivity applica- Chadha of its majority’s That the political focus is tion self-government District’s act. surprising. not The Chadha decision has through reverberated much legis- national applies prospectively Chadha to our law impact self-govern- lation. Its on limited ruling. from the date of this court’s D.C. capitol ment of the naturally legislation nation’s of Council ruling before our —such cases, city. concern in this In these promulgation how- as enactment full of D.C. ever, counsel, all judges therefore, trial 33-541(a)(l) is, and this Code in — political court have focused infirmity ramifica- fected the constitutional we expense clarity tions Chadha at the in provision in now find veto application self-government the law to the actual act. Because hold we opinion facts before us. The deals to apply prospectively, with Chadha we need (Part I); history not, the veto limit on infra, troubling self- as discussed reach government, along severability. approach Chadha and its issue of The (Parts II, application IV); III tough majority severability I find doubtful (Part question severability V); light analysis re- trial facts (Part YI). troactivity questions These opinion court’s better reasoned in Cole. predominate Cole, made to over the facts each See United States Wash.D.L. 9, 1984) case. It is not clear ques- Rpt. (D.C.Super.Ct. May then how the (Smith, J.), tions “decided” determine each Appendix. of the three I, therefore, cases. at the look cases them- severability regarding A determination selves. unnecessary be- analysis to this court’s cause, event, Both Gary and were appellant Cole convicted un- Pee is enti- pre-1981 They der tled no rul- prospective Code. relief under our argue repealed by ing. that the statute was Any question regarding severability the. passing 1981 Council action by Congress’ has Sexual As- been settled October 541(a)(1) self-govern- in 1981. Under express severability provision. Pub.L.No. act, the authori- ment the D.C. Councilhad 98 Stat.1975 Cole, reaching criminal of which judge ty his conclu- enact laws trial severability provi- express approved. sion that grant of untouched that author- self-government act was inseverable sion leaves addition, Congress’ grant legislative authority ity.1 In October from the Council, legislation procedure did not have the benefit alters the D.C. follow, Chadha, disap- light provision must express severability of the when pas- proving enactments. Bicameral such his decision. That he rendered are sage presentment to the President 12, 1984, effective on October became necessary an act of now law, to this court supervening is available a D.C. Council law.2 For a strike down reaching decision. our old, repeal must provision to there new applies supervening appellate An court repugnancy pro- positive be “a between law, is, that becomes effective law old; law and those of the visions new pending appeal, long so after trial but repealed by the old is and even then law supervening statute has none tanto, implication only, pro to the extent of impermissible post facto effects of an ex States, repugnancy.” Woodv. United Marsh, Storage & Co. v. law. Nilson Van Pet.) 342, 362-63, (16 10 L.Ed. 987 (4th Cir.1985); 755 F.2d see Unit (1842). grant authority to the D.C. Henson, U.S.App.D.C. ed States disap- enact criminal laws not Council to (1973). 44-45, 1292, 1304-05 486 F.2d proved by continues intact. Changes procedure generally are not similarly and all others situated were Henson, Pee post supra, treated as ex facto. unlawful; their acts were on notice that U.S.App.D.C. 486 F.2d at 1305. penal- they they knew at the time acted holding in Chadha as to bicameral subject for their they were ties to which presentment procedural; action and preju- They are in no sense unlawful acts. express severability provision proce is a super- application of this court’s diced only question for this dural one. The law, is, self-government act therefore, vening court, application is whether our express sever- amended stands supervening law in its effect runs ability clause. post athwart the ex facto clause Const, 3; cl. Constitution. U.S. art. § on the facts of these I thus focus amend. XIV. Laws that make an act crimi before precise issues of law cases and the innocent, which, done, or nal doing, I the same result By so reach us. greater punish provide those laws that a revealing clearer path a by a less tortuous applicable a than ment for criminal act holding in case. for the each basis committed, when the act was fall within being post ex proscription as constitutional II See, Henson, 159 U.S. e.g., facto. seems to be over- remaining issue One 45, 486 F.2d at 1305. App.D.C. at major That is the issues. shadowed Gary. presented by question effect, express severability provi- corroboration trial court erred that the any complains He retrospectively obliterated sion has thus obviat- finding victim to mature the D.C. Coun- shadow from constitutional in- for a corroboration ing necessity 33- D.C.Code cil’s to enact § there- not be affected shall or circumstances provides: 1. Section by- particular provision of this [the If (1984). 98-473, 98 Stat. 1975 No. Pub.L. Govern- Columbia Self-Government Act, Reorganization] applica- or the mental 131(d), 98 Stat. circumstance, No. 2. Pub.L. any person or tion thereof invalid, of this Act and the remainder held persons provision to other application of such “child,” I strdction. concur that this issue is cor- but corroboration is re- otherwise rectly finding maturity decided. The Examples quired. or mentally retarded not erroneous and no on instruction corrob- ill victims. The of judicially vices “decid- Fitzgerald required. oration v. Unit- presented ing” issues not are clear in this States, ed (D.C.1982) (en A.2d 1295 We by impre- case. blur action banc). cisely attempting policy to make judg- subject. Indeed, may ment a related goes step The court then we further reject en have overridden a Fitzgerald holding judgment our banc Judge adopt confine Newman’s views in his 23-114 to “child I victims.” can- dissent in that case. support How this issue —the my not lend judicial such incur- need proof or not for corroborative and a sion.

corroboration instruction in sex offense against committed complain- an immature APPENDIX demonstrated, ant —is before us is and Yet, SUPERIOR COURT OP THE pur- cannot be demonstrated. DISTRICT we port to OF decide that “sex COLUMBIA offenses” changed. rule is now What a curious of bit Criminal Division appellate making this law is! The en banc opinion court seems to an an have about Criminal Case No. F 5111-82 presented opinion contrary issue not to —an its en holding years banc of but three States of America ago gratuitously engrafts that view —and opinion on the case this because it seems Sylvester E. Cole handy be to the most one around. If we MEMORANDUM OPINION case, do any can this we can decide AND ORDER in any issue case. This is of mark This matter is before the Court on de- judicial issuing restraint. It is the same as judgment fendant’s motion to arrest follow- “judicial a bull.” ing his Knowledge. conviction for Carnal even What is more is unusual that we sole Defendant’s contention is that the stat- reach so far to “decide” what seems indicted, under he ute which was tried and have legislatively. been decided The D.C. convicted, (1981),1 D.C. Code 22-2801 § provision a declaring Council has enacted effectively repealed prior to the initiation proceedings 13(a) against of him of § purposes prosecutions brought of [f]or the District of Columbia Sexual Assault D.C.Code, under title of indepen- (D.C. 4-69) of 1981 Reform Act Act [herein- testimony dent corroboration of the aof after referred to as Sexual Assault Act].2 child required victim is not warrant

conviction. I. (1985 Although D.C.Code 23-114 Supp.). § Sylvester E. Cole was indicted Janu- that enactment does not refer to “sex of- ary charged with one count majority, major fenses” as does the Kidnaping 22-2101, impact surely under D.C. Code such We two be cases. § “holding” Rape so thus reach far for a counts under D.C. Code cover § Knowledge those cases few where the victim is not a and two counts of Carnal under 13(a) §1. reads Act § as follows: Sexual Reform reads follows: knowledge Whoever has carnal of a female 808, 818, 871, 873, Sections forcibly against her will or whoever car- Act to Establish Code Law for nally knows and abuses a female child under Columbia, (31 approved March years age, imprisoned shall D.C.Code, 22-2801, -2304, 1332; Stat. Secs. years term or life. -3002, -301) repealed. & -3001 I, requirement, Art. bicameralism D.C. Code 22-2801. Trial was held be- of the Federal Constitution. The Court fore a jury and on December 1983 de- only correct method held that which fendant was guilty found of one count of may disapprove of actions taken Knowledge. Carnal pursuant properly delegated authority 19, 1983, prior On December to sentenc- legislation; through the enactment of ing, present filed the motion. defendant wit, passage by majority of a bill February On due to the nature of both Houses of followed raised, the issues granted this Court presentment President. See District of Columbia’s motion to intervene atU.S. 957-58. and on March arguments 1984 oral case, present it is uncontested were held. Repre- used the House of validity argument defendant’s to strike down the Re- sentatives Sexual given 602(c)(2) upon rests the effect to be Act, 602(c)(2), exactly type form District of Columbia Self-Govern- “legislative prohibited by veto” Chadha. Reorganization ment and Governmental Instead, issues face this to Home Rule Act referred [hereinafter 1) prohibi- Whether Court are: Chadha’s light recent decision in INS Act], against the use of vetoes tion (1983).3 Chadha, 462 unique legislation applies in the context 602(c)(2) House of allows either Section and, 2) Columbia?; involving the District of negating any pass a resolution Congress to apply, that If does how would Chadha City of Coun- act the District of finding of the Sexual affect both the status cil, affecting 23 or 24 of Titles Act and the defendant’s convic- Reform Code, thirty of Columbia within tion? days is to Con- after such act transmitted in question The addresses each 9,1981, September the House of gress. On turn. timely pow- Representatives exercised this

er, disapproving of the passing a resolution Act. H.R. Res. 97th Sexual Reform II. (1981). Relying on the Cong., Sess. 1st Constitution, express By the terms of the “veto,” Congress, neither propriety of this power has to “exercise exclu- At- City nor the United States Council whatsoever, in Legislation all Cases sive any to believe torney’s Office had reason may, by Cession such District ... repeal of Reform Act’s that the Sexual States, Acceptance of particular and the Instead, those went into effect. § Congress, the Seat of Government become in the Dis- for sexual offenses prosecuted States_” I, 8, cl. Art. § charged prior under continued to be trict 17. existing law. might tempting to 23, 1983, however, glance, be At first it On June “exclusive” argue In that the word that Court decided INS v. Chadha. it purposes; two by clause serves case, that efforts Con- above the Court found scope Congress’ delegations describes the only of not gress to control over retain by means which such nega- power but also the through the use of power, in engage To House, power shall exercised. be by one violate tive resolutions however, ignore to Clauses, temptation, both I, Art. els. Presentment § by reads, the Chair- 602(c)(2) day act transmitted such present in rele- §of 3. The form Repre- Speaker of the House of to the part, man as follows: vant the President of the Senate sentatives and any transmitted In the case of such act 30-day period only during 1 House such if any respect codified to act the Chairman with disap- adopt a resolution does not such act shall take effect Title or § 1-233 proving act. D.C.Code such 30-day period beginning on the end of the (b) The given Senate alone was plain meaning past interpretaron power to conduct trials following im- cl. peachment charges initiated wording of the clause clear following House to convict trial. unambiguous. Congress, It states that I, 6; Art. cl. § opposed entity, to other has the exclu- (c) given alone Senate final power legislate regard sive to District power approve unreviewable or dis- say, provi- affairs. It does not nor make approve appointments. Presidential Art. for, Congress legislation sion to enact such II, 2; cl. § free and carefully clear those restraints (d) The given Senate alone was unre- prescribed Constitution. power to ratify negoti- viewable treaties position unequivocal by This is made ex- II, ated President. Art. cl. 2. amining placement of cl. separate Art. I. Section 8 lists seventeen clear, then, It is that the word “exclu- power areas which the sive,” if it surplusage, be not serves a explicit. act was made These include such purpose other granting than that of Con- regulate powers ability diverse as the gress sole over the District Co- commerce, money, coin borrow and collect Fortunately, lumbia. we need not resort to Yet, taxes and in none declare war. conjecture regard, in this for the history seriously these areas has it ever been con- clearly cl. 17 reveals intention behind Congress might tended avoid Con- its existence. requirements passage stitution’s for the legislation. Inasmuch as the new seat of the Federal government was to be created from lands Chadha, the Court made it clear that existence, already ceded States it was requirements these only apply not direct necessary jurisdiction over such area legislation regarding powers, but to clearly As delineated. Madison stated: delegations such power as well. Paced challenge with a delegation public Without power Congress of under the might proceedings naturalization be insulted and its clause, I, 4, Art. cl. the interrupted Court stated: impunity, depend- but a disputed “It is not that this choice to del- general ence of the the members of egate authority is precisely government comprehending the kind of State the implemented decision that can be only in of government protection the seat the procedures accordance with the set out in duty might bring in the exercise their of ; passage Art. bicameral imputation followed on the national councils an of I — presentment to the President.” 462 U.S. at equally awe or influence dishonorable to government dissatisfactory the to Confederacy. the of other members the Instead, posited Court that the the rarely, Founding only in Fathers then (J. Madison) The Federalist No. at 272 terms, unambiguous most of created (Mentor Or, 1961). Supreme ed. exceptions requirements to normal succinctly expressed propo- Court more Indeed, passage legislation. of history sition: from the of the clear “[I]t provisions Court was able to find but “four provision that the ‘exclusive’was em- word in the Constitution ... which one House ployed possibility that to eliminate may act alone with the unreviewable force legislative power Congress over Dis- of law, subject not to the President’s veto.” of the trict was to be concurrent with that provisions U.S. at 955. The four are: Federalist, 43; ceding states. No. See (2d 1876), (a)The Representatives pp. ed. 432- House of Elliot’s Debates 433; given power Story, on the Consti- alone to initiate ‍​‌‌​​​​​​​‌‌​​​‌​‌​‌‌​​​​​‌​‌​‌​‌‌‌​​​‌​‌‌‌‌‌‌​‌‍Commentaries 1873), I, 5; (4th impeachments. States ed. Art. cl. tution of the United (“The of the District mere cession 1218.” District Thomp- Columbia v. government Federal relin- to the Columbia Co., son 346 U.S. States, it but quished the This, course, say is not that the to or of the United States did not take out relationship to the District Constitution.”). aegis from under exceptional. unique status not Due to the expressions, Given these only capital, the Federal holding of rule Cha- constrained to legisla as the Federal continues its role present case. As stated applies in the dha ture, analogous to it also assumes a rule earlier, Founding Fathers knew how regard to one government of a State power grants Congressional exclude municipalities. v. Unit See Palmore passage on the normal limitations from the States, (1973); Dis ed 411 U.S. Yet, at 955. legislation. See 462 U.S. Co., Thompson v. trict delineating the failed do so when they (1953); O'Donoghue Unit v. regard to the Dis- of such scope (1933). Thus, States, ed Therefore, inasmuch as trict of Columbia. District, Congress is dealing with the was concerned with the Court in Chadha legislate “in a manner with permitted scope legislation, not the process respect subjects would exceed its 940-41, holding in that see 462 U.S. unusual, very powers, or at least would be necessarily apply to all exerсises must case legislation in the context of national enact exempt specifically legislative power not powers delegated to it un ed under other re- presentment and bicameralism from the I, Palmore, 411 U.S. at 398 der Art. 8.”§ quirements of the Constitution. omitted). (citations result, has reaching this the Court It cannot be emphasized, however, holdings by considered the recent carefully that this unique status extends itself in Unit Superior Court Judges of the two to the definition of scope Congress’ memo, McIntosh, F ed States power. grant It does not Congress a spe- 27, 1984)(Shuker, (D.C.Super.Ct. March op. cial license short-circuit the Constitution F 3666- J.), Langley, States simply because it is acting within the (D.C.Super.Ct. March op. memo. boundaries of an impermissible otherwise C.J.), 1984)(Moultrie, also dealt with zone. decision applicability of the Chadha expressed time and This view has been As dem legislation affecting the District. taking again by the Court. While above, holding Chadha onstrated special relationship of note contrary result. to a compels this Court District, has the Court regard McIntosh, hold- Langley and In both assert that the been careful to nevertheless applying as not ing viewed always guide in Chadha was must Constitution Federal unique nature Palmore, due to the to the District 411 U.S. Congress’ actions. See I,Art. plenary power under Congress’ within the (“Congress ‘may exercise at 6, 8; at Langley at McIntosh leg- cl. 17. that the See legislative powers District all however, ignores, that This view 5-8. might exercise within a State islature of power of plenary a dealt with also State; long it not contra- Chadha so as does ... I, estab- that of Art. Congress under any provision of the Constitution vene rules of naturalization. lishing uniform Co. Capital Traction States.’ the United this Yet, taking note of I, 4. cl. (1899)”); Thompson, Art. 1, 5 Hof, 174 U.S. v. Chadha, unlike the power, the Court no (“[T]here is constitution- at 109 346 U.S. McIntosh, did not Langley and delegation by Congress to Courts to the al barrier Con- a between differentiation focus on of full of Columbia the District lo- is authority exercised which gressional constitutional subject of course to power, nationally, upon nor opposed to lawmaking cally as is sub- to which all limitations opposed to that plenary as power which ...”); 289 U.S. at O’Donoghue, servient. ing effect, the District.4 In the President qualified. which is Instead, the Court was would be reduced role of an interest- concerned solely with the proper exercise ed, impotent, party. but signa- Even his of legislative authority no matter what its on ture Rule Home Act be would noth- scope or source. ing gratuitous more than a adornment.5 Chadha, In Court ex- Quite simply, position this is untenable. pressed proposition as follows: To remove the of the Executive plenary authority process from the of enacting legislation open question, ... is not but aliens affecting poses dangers. two challenged here is whether Con- what First, while it is true that is often constitutionally per- gress has chosen compared to legislature a State when it implementing that missible means of affairs, deals with District it should be power. Buckley As clear in we made v. object noted that grant “[t]he Valeo, (1976); “Congress has U.S. legislation exclusive over the district plenary authority in all cases in it highest sense, ... national in the and the legislative jurisdiction, has substantive organized city grant under the became the Maryland, 4 Wheat McCulloch city, state, district, not of a not but of (1819), long so of that exercise a nation.” O’Donoghue, 289 at 539- U.S. authority other does not offend some (quoting F. Wright, Grether Id., at 132. constitutional restriction.” (6th Cir.1896)). Given this in- national at 940-41. terest, to now that claim the President Chadha, That Court in above plays part no in these affairs be to would quotation illustrates, necessarily meant its exclude from this en- area holding legisla- to extend to all exercises of deavor the government one branch of authority tive even made more clear which is elected nation as a whole examining the tortured results of those who, result, as a best a na- assumes attempts to exceptions create artificial perspective. tional See 462 at 948. applicability. McIntosh, it is stated that “Congress, exercising concern, however, its plenary powers greater even Of is that Columbia, may over the District of position eschew” the above would also remove that the Presentment salutary Clauses bicameralism most upon of checks the excesses requirement 12; I. Art. legislature; McIntosh of an untethered Presi- 5, Yet, Langley See also if this claim dential veto. U.S. at This See 462 946-48. true, alone, Congress, acting then would result leave the citizens of the Dis- President, complete subject free of legislature they have trict to a “legislate” elect, any matters affect- did not totally but one free of Columbia, intervenor, 4. Langley has the District It is stated in that: “It is clear unambiguously position. adopted this See Re- Congress, legislation presented Presi- to the sponse of dent, Intervenor District of Columbia to the may constitutionally system establish a Constitutional Issues Raised in Cole’s Motion to governance does not Presi- local involve the Judgment (D.C.Super.Ct. dent_” Arrest at 4 Janu- filed added). Langley (emphasis 7at 27, 1984). Indeed, ary gone it has as to so far placing position Aside from "Congress may wholly state that exclude the (the attempting ways Presi- have both respect President from government, local role signature necessary, if it is dent’s is not but way could not be done given, signals approval), position it this was respect with to affairs.” national Memorandum There, rejected in the stated: Chadha. Court Support of Points and Motion Authorities assent "The of the Executive to a bill Columbia, of Defendants District Barry, Marion S. contrary contains a to the Constitu- Jr., Stokes, Margurite C. Touch- John judicial it review.” tion does not shield from to stone and Maurice Turner Dismiss Pliantiffs’ (citations omitted). 462 U.S. at 942 n. 13 Complaint Amended Second or in the Alterna- 57, Summary Judgment tive for Dimond v. Columbia, Civil Action No. 83-1938 (D.C.D.C. 1983). filed December

843 determination, making In this this Court authority. restraint on its While the for- Act Home Rule lacks a notes that the sev- special mer condition is necessitated the prevent provi- erability to an invalid clause federal in preserving interest the national sion, 602(c)(2), affecting from the such capital, the the latter condition However, character it rest of the statute. is also аny stands barren of rationale. great is of confu- noted that there a deal provide President “The the presumption decision can be sion as to whether a power qualified another, to nulli- drawn, with a limited and or the way one lack legislation by based fy Regarding veto was this confu- proposed of such a clause. profound sion, adopts of the Framers on the conviction the view set forth Court Congress powers Energy: conferred on Consumer carefully cir- powers to be most were the question pre We think the where It 462 U.S. at 947. would be cumscribed.” irrelevant, sumption mostly is lies Fram- strange thing indeed if these same inquiry the crucial serves obscure legis- check on did not believe that this ers have whether would enacted equal apply authority should portions lative other the statute the ab concerning governance provision. force matters sence of the invalidated This capital. fully of the nation’s is in accord with United States v. Jackson, (1968) ], U.S. 585 n. [390 above, Therefore, stated for the reasons Supreme in which the Court refused to 602(c)(2) of the holds that the Court place of a significance on the absence Act is unconstitutional Home Rule severability clause: rele “[W]hatever that, result, attempt Congressional as a might explicit vance such an clause have Act inval- negate the Reform Sexual creating presumption severability, id. of sever- ... the ultimate determination presence ability rarely turn on the or will III. Rather, clause.” of such a absence finding inquiry, This does not end question is would have whether however, power a limitation on a of the statute enacted the remainder invalid, is found to it must be deter provision. the unconstitutional without power mined whether the creators of such imposition any do not We view grant would have allowed persuasion on ei unspecified burden v. exist absent restraint. See INS inquiry. ther side as beneficial Chadha, 931; 462 U.S. at Consumer Ener 442; 673 F.2d at App.D.C. U.S. FERC, U.S.App.D.C. gy Council Co., Coal see also Carter Carter (1982), 673 F.2d sub nom. aff'd rule, (1936) (“[U]nder either U.S. Group v. Con Process Gas Consumers by apply- reached the determination ... America, 463 Energy sumer Counsel of namely, What ing the same (1983). test— In context of the U.S. 1216 lawmakers?”). intent case, requires present a determination case, history granted have of whether clearly enough speaks Home Rule Act City Council the alter legislators’ in- any presumption as to the criminal code without the over District's situa- unnecessary.7 For unlike the 602(c)(2).6 tent sight provided by mechanism (1976), Refining Champlin quoting approved by U.S. 6. This test was Oklahoma, There, Corporation Comm’n Co. v. the Court stated: in Chadha. Only recently that the this Court reaffirmed U.S. at 931-32. portions are to be severed invalid statute Legislature evident "'[u]nless District of Columbia: Rule for the 7. Home provisions History Legislative those Background 9056, would not have enacted of H.R. Culminating independently power, Bills which are within its and Related H.R. 9682 Valeo, Buckley 424 Self-Government of Columbia that which is not.'” in the District 844 Constitution_” I, article 8 of the D.C. posed in tion and Consumer Chadha Ener Code 1-201 gy, where the found that courts there was protection This concern for the of the Congressional little debate as to the role of government Federal has roots as deep as oversight passage of the challenged the existence of of Columbia statutes, 934; U.S.App. see U.S. at Indeed, impetus itself. for the creation 442-44, at Congress D.C. at F.2d special federally of a controlled area debating amending the Home Rule which to capital house the nation’s had its Act demonstrated it viewed the issue origin in security: a concern for part of federal retention as a of vital According to the records of the Consti- any plan delegate authority of to over the Convention, tutional Founding Fa- criminal code. sought thers the establishment of a fed- Throughout on the the debates various erally permanent controlled of set [sic] bills, Home Rule of both members Houses government separate jurisdic- from the Congress plain they of made it Viewed tion of or locality State to order engaged process in a themselves of com- protect officials potential national from competing

promise involving two interests. harassment, coercion, arbitrary or arrest hand, grant they On one wished to to by local courts and law enforcement offi- rights citizens of all the the District of was, moreover, cials. There a reluctance traditionally enjoyed by self-determination rely protection officials for local of citizens the United States. Balanced potential attempts from mob violence or this, however, against was their concern by groups persons to or of interfere with preservation unique over of nation- impede otherwise harass or the conduct capital role was al Federal created of the Federal Government’s constitu- fulfill.8 tionally prescribed duties. This concern times, present perhaps easy stemmed an incident oc- forget preservation that the of the latter 21, 1783, involving curred on June precondition interest was viewed aas Congress Continental and mutinous Rev- indulgence of the former. While it is troops yet olutionary Army deactivat- primary purpose that “the true core and of ed. On that date from 80 to 250 armed Home Rule ... Act was to relieve vary troops on the number— —accounts Congress legislating upon of the of burden Independ- marched on surrounded matters,” essentially local McIntosh v. Philadelphia ence inHall where the Con- (D.C.1978), Washington, A.2d tinental session. These delegation explic- of such had, disobeying troops orders of their officers, itly “[sjubject Philadelphia petition made retention come to many pay of the ultimate author- months of intoxicated, capital granted troops were ity nation’s due them. The Mann); Act, O’Neill); (statement Reorganization Rep. id. of and Governmental House at 2176 Print, (1974) Mazzoli); Cong., (statement Rep. Sess. Comm. 2d id. at id. [herein- Legislative History]. Stark); (statement referred to as Rep. after 2191 (statement id. at Whalen); (state- Rep. id. at 2216 These two concerns were mentioned time and Cleveland); (statement Rep. ment of id. at 2218 sentence, again, often in the same those time Tiernan); (statement Rep. Rep. at 2220 id. Reprеsentatives who members House of (statement Mink). Rep. at 1746 See also id. during spoke of H.R. See floor debate Diggs). (statement Legislative History Rep. at 2106 Senate, during Statements members (statement Adams); Diggs); Rep. id. at 2114 much of S. reflect shorter debate (statement Nelsen); Rep. at 2120 id. at id. (statement by same concerns. id. See (statement McKinney); Rep. id. at 2156 (statement by Eagleton); at 2758 Sen. Sen. Mathias); id. (state- (statement Rep. Broyhill); id. at 2167 Scott); (statement by Sen. id. at 2760 (statement Gude); Rep. at 2168 ment Rep. Fauntroy); id. Beall). (statement by Sen. id. at 2761-62 (statement Rep. id. at 2174 code, eas, sub- including the criminal were leaderless, threatening to the assem- Congress’ ultimate ject solely to Congress who had bled Members of overriding legislation. Legislative enact the doors and shutters of barred 601).9 History (§ at 1315 Legislative Congress request- Chamber. reviewing provisions, member these police protection from the ed or militia Committee, Congressman Lat- of the Rules authorities, pro- Pennsylvania such but Ohio, questions. The raised several ta evening By mu- tection was denied. place: following colloquy took troops tinous retired their barracks n question. One further Mr. Latta: immediately to and the voted ought nail this down I we think authorities move to Princeton where local every in the Dis- I think citizen because inci- protection from such promised ought to be trict Columbia aware brought example was to the dent. This this. Delegates attention of Consti- if saying pass is we this you What are and aided tutional Convention legislation proposed by the committee argument for the carrying the “exclusive mayor council and the could I, legislation” clause of article section amending the District of pass legislation establishing government under seat of Code? Columbia Criminal jurisdiction the ultimate of the Federal question There is no about Hogan: Mr. Government. my mind. Legislative History (statement at 2797-98 La,tta: Mathias). up Sen. 1605; they could let See also id. at So then Mr. Congressional Service, pass Research far as Library of these acts that we as some of Congress, The is concerned? Constitution criminal [sic] at 352 States thing they are Hogan: Mr. security only contin- This not concern doing specific certain prevented from specifically it also to exist ued things VI, very listed in title which are city’s crimi- included the substance far is con- But as as code limited. shown, all at presently code. As will nal they cerned, basically what are limited Act’s major stages Rule Home three doing courts as relates House, Senate, and development, in District of Co- title XI in] [listed Conference, required that reorga- has to do with lumbia Code which any safeguards stringent be attached XXII, XXIII But nization.... Title[s] area. power over this vital delegation XXIV of the District This made requirement was first evident amend, super- repeal or they could Code Representatives the House Com- sede. mittee on the District of Columbia revealed by Mr. Mr. Latta: Will substitue bill, proposed of its H.R. the content permit this? Nelsen pur- the House Rules Committee would leave Hogan: The Nelsen bill Mr. upcoming setting pose the terms for they are. the courts time, proposed At debate. floor talking I about the crimi- Mr. am Latta: City Coun- bill divided the nal code. areas spheres. into Certain such cil two permit them to Hogan: Mr. It would administration, organization, juris- code whatsoever. amend the criminal courts, totally were isolated diction in this people I think the who live don’t authority. Legislative from Council See tampered with. city to see that (§ 602(a)(4)). All ar- want History other prescribed. specially Budget were also proposed matters Charter were Amendments to the 603). (§ category, Legislative special His- placed see See id. at 1317 in a (§ 303(b)), tory which allowed at 1244 604). (§ proposal. See id. at 1320 to veto necessary majority convince a of the Murphy: gentleman Mr. Would the House vote in the favor of bill. See yield? (statement Legislative History at by Mr. Yes. Latta: Fraser); (statement Rep. id. at 2110 by amended, Diggs); Mr. If it Murphy: Rep. (statement could be it by id. at 2155 Rep. too, tougher, McKinney). could be made could not? the Significantly, following by made comment member District Hogan: Mr. Yes. demonstrates, of Columbia Committee Mr. You are Murphy: presupposing that guarantees preserva- these concerned people charge who would be in tion of the federal interest: making this would be the code and sanc- Every change in the bill that the Mem- tions more lenient they than are now? bers will see in Colleague” the “Dear Mr. There Latta: is no doubt about it. they many letter received from today Legislative History at 1778-79. committee, us changes on Congressman While Latta’s comments been have considered the committee. unfair, perhaps were they evidently re- Testimony has been heard the com- flected the many peers. attitude of of his mittee, and the fact is committee days comments, Within seven of his and bill, put did not those into the because we just up before the bill was to be taken on they necessary, did not feel were floor, Chairman of the Committee politi- feel that pragmatic now we for the Columbia, Congressman passage they cal of a home bill rule are. Diggs, following “Dear Col- issued And I would claim to the Members that league” stated, which part: letter they interests, protect our Federal undersigned Members of the D.C. [T]he the Presidential city interests this Committee will offer an amendment in without doubt. of a during nature substitute (statement Legislative History at 2155 Floor debate. Rep. McKinney). The Committee substitute six contains important changes evidently assuaged which were made af- These amendments opposed ter numerous conversations the concerns of those who H.R. and sessions original Members and other in- 9682 its form. With criminal parties. terested moved changes clarify These code now into that section bill action, directly prohibited H.R. intent of 9682 and Council accommodate see major (§ 602(a)(8)), expressed Legislative History reservations at 2318 since the Representatives passed reported bill was out. the House of by a vote of 343 74. measure See id. at They are as follows: Congressional Reservations of Au- stage in Rule The second the Home Act’s thority limitations on —Additional the same evolution demonstrates that con- Council: cerns which worried House mеmbers also played on minds of the members of the (b) City prohibited Council [The] There, however, an alternative Senate. Under changes in making Statutes proposed. means of control was Whereas Code— of the D.C. Titles opted for the inflexible measure H.R. 9682 Code. the Criminal bill, prohibition, of total the Senate S. Legislative History at 2084-85. authority delegation increased mixed debate, Congressional system elastic subsequent As clear in with an was made review, City disapproval. The Council over the criminal removal of ability code, changes granted to alter the proposed by oth- was to be and the code, amendments, ability but this was to be product were the real- criminal er power House of guarantees would limited of either reappraisal istic of what hind use of vetoes and how Congress to legislation veto such within adoption such provision govern thirty days after such act had been trans- the Council’s over the criminal code mitted to Congress.10 Legislative See His- might alter the balance between the two tory at (§ 325(g)(2)(A)). competing interests of self-determination methods, however, This difference in capi- and the maintenance of the Federal any disparity should not be confused with security.11 tal’s as to motivation. As was true with explanation as to the first matter Representatives, of House the Senate place by Diggs took in a statement on the wished to strike a balance between of floor the House: delegation of what it viewed as cumber- give In the and take of this conference protection some duties and the of the na- report Speaker, ... Mr. we note that security interest in the of the tional Federal strongest feelings some of the on the capital. Report As the of the Senate Com- of of part some us been have set aside. on ex- mittee the District of Columbia example, veto, on congressional For pressed proposition: this “It is com- [the] very strong was Senate that and as a of of type mittee’s view that this veto matter of I fact think I learned Council actions will ensure to the first time real reason Senate has the continued of af- ultimate control pass past able been to home rule in the relieving fairs of the District it of while expeditiously just so is because it was having pass of the some burdens of to long in the body felt other that as as piece legislation every Legisla- of itself.” apparatus, long there a veto as History tive at 2726. congressional process there a cor- to congruence This of intentions between they might rect what consider to be a Senate, the House regarding the del- part misaction on the a legisla- local egation authority code, over the criminal body, they tive then inclined be were to concretely was most demonstrated in the generous it. about third, final, stage of the Home Rule Legislative History at 3050. development, Act’s the Conference Commit- There, compromised, tee. the two Houses matter, Diggs, to the second in his As moving the criminal code out from under Repre- role Chairman the House of prohibitory terms of H.R. а 9682 to sentatives Committee on the District of Co- specifically legislative provi- tailored veto lumbia, let it known that he viewed the be sion modeled on that of bill. the Senate code placement of the criminal under produced provision presently This acceptable terms of a veto as question, 602(c)(2). Legislative His- See paramount balancing the two method tory presented by Act. interests the Home Rule Colleague” explaining In a “Dear letter it is While true that this evolution of authority provision whereby the Council’s oversight openly control not debated delayed two over criminal matters would Conference, does not mean that it went criminal, years, pending a revision unexplained. Given that the Conference code, part: he stated in adopted the mecha- Committee Senate’s restraint, Report, Diggs Conference nism Chairman evident- [U]nder making necessary prohibited ly explain felt to his fellow Council changes in code for two Representatives the Senate’s rationale be- the criminal vetoes, apply same all as witnessed the exten- 10. This veto Leg- legislation prohibited. directly provisions prior legislation, Council sive use of such (§ 325(d)). J., History Chadha, (White, id. islative at 2643 See also INS see (§ matters). 325(f)(2)) budget (regarding at 2645 dissenting), original form of H.R. 9682, regarding su- charter amendments. See course, Representatives House al- 11. Of pra, n. 9. knowledge ready sophisticated had of the use to its viability reliance on the continued years Subsequent after it takes office. 602(c)(2). argue To now that the exist- that, may changes Council make ence such an unused alternative disap- subject either House proval might mechanism somehow serve as days within 30 after the trans- justify upholding a rationale to the Sexual mittal the act.... Act, Reform an act which was deliberately I procedure feel that this sets the best unambiguously repudiated by one protecting combination for the Federal of Congress, House take an act keeping interest while the local Council judicial legerdemain of which this Court is process involved in the making incapable. govern. laws which will sum, restraining to view the mecha Legislative History at 3041-42. 602(c)(2) ancillary nism of as somehow stages legislative pro- At all three delegation over the crimi cess, then, Congress was concerned with nal code would not “mutilate the sec erecting safeguards against sufficient the garble meaning,” tion and enlarge its but possible capital’s security erosion of the scope of power City the Council far following delegation authority the over beyond Congress. the intention Davis v. Clearly, criminal code. in least Con- Wallace, (1922)(quoting 484 gress’ adequate- eyes, this concern was not Dombaugh, ex State rel. v. 20 McNeal ly merely by relying answered on the ulti- (1870)). Ohio St. 174 Mills See ability Congress to mate override Coun- (7th States, F.2d 1254-55 713 through passage cil actions the of federal States, Cir.1983); McCorkle v. United amending legislation. The of H.R. 9682 (4th Cir.1977), F.2d 1261-62 cert. de point undeniable. makes that Quinn nied, (1978); U.S. Com Instead, posi- the settled on a Revenue, 524 missioner F.2d Internal drastic tion somewhat less than the total (7th Cir.1975); Brown, Inc. v. U.T. prohibitiоn delegation adopted by the (W.D.N.C.1978). F.Supp. Representatives. position, House of This veto, great- the use of a allowed above, Thus, for stated the the reasons er flexibility imposing while nevertheless 602(c)(2) also serves invalidation of to quickly implemented restraint as to delegation authority invalidate the changes might in criminal law which City the criminal code to Council. prove incompatible federal inter- Hence, authority had no City Council provision The thus est. veto became the and, Act enact the Reform there- Sexual delegation keystone to the fore, prosecuted under the defendant was code; criminal over the restraint proper statute. becoming inextricably so inter- the removal one would nec- twined that IV. essarily cause the downfall of the other. preferred have re- Court would interdependence, is this mutual

Given solve motion on alternative defendant’s assert, as the inter- enough to does grave grounds as well aware of it is venor, Columbia, District of either that gover- to the implications holding its ability to Congress retains the ultimate nance of the of Columbia. Unfor- actions even absent override Council tunately, research and de- after extensive present Con- provision, or veto liberation, compelled the Court feels in ability gress might find such sufficient analysis agree that the with Justice White Con- The fact remains that and of itself.12 legis- all exercising “appears in invalidate Chadha gress precluded been has form or irrespective of sub- due lative vetoes repeal legislation Council power to Judgment at Response Co- Cole’s Motion to Arrest of Intervenor District of See 27, 1984). January (D.C.Super.Ct. filed Constitutional Issues Raised lumbia to the provision of the treatment) the veto is unconstitutional. ject.” Rule Act (White, Home J., dissent- Thus, ing). unless Supreme chooses to revise and Chadha, limit which I. unlikely prospect, scope today’s Supreme majority holds that

holding was unavoidable. legisla- Court’s decision Chadha —that a Accordingly, defendant’s motion to ar- legislation in- tive veto over national judgment rest be, must hereby is, and it applies equally firm — incorporated denied. Rule Act Home SO ORDERED. Congress supervises which local lawmak-

/s/ Donald S. Smith ing By in the District of so Columbia. holding, equates majority the D.C. Judge Council and its federal enactments with 9,May DATE: agencies pur- and federal law. The result MACK, dissenting Judge, Associate ports require to follow the part concurring part: requirements present- of bicameralism and ment —which it must of course follow when lightly We should not hold it acts on a national level—2 when it acts an Act of unconstitutional. This is purely local pur- in a manner to uphold court sworn the Constitution pose equa- I majority’s effect. find the interpreted Court, if but foreign Chadha tion rationale application interpretation of that to dif- illogical light the conclusion of constitu- dispute, facts pro- ferent is in we should Moreover, designs purposes. tional I cautiously. evaluating ceed In the consti- interpretation that believe such in the tutionality any statute, “begin, of we must with, long run is inconsistent and under- course, of presumption with the the that mines, justification the fundamental challenged Immigration is statute valid.” Home Rule in the District. Chadha, and Naturalization v. Service 944, 919, U.S. view, my validity discussion of the (1983). judges L.Ed.2d At least nine Congress’ authority exercise over Superior the District of Columbia District Columbia must start with (out of the thirteen who have considered I, that Clause fact under 17 Article 8§ issue) held Chadha does have that Constitution, operates pur- Congress invalidate the one-house veto legislative suant “two distinct classes of Act, 233(c)(2) the Home Rule Security v. D.C.Code American & Trust Co. power,” 1— (1981).1 The District of ar- Rudolph, App.D.C. 32, Columbia has Un- gued class, that vigorously Rule Act is Congress may Home der the first enact persuaded I am relating constitutional. the com- laws District pelling protect functioning rationale these decisions and ar- of the national guments here; government “govern and I therefore dissent from these laws (after holding Id. majority’s summary throughout rather the United States.” F-7005-83, McClough, Langley, United F- See States Crim. No. Crim. Nos. M-12059-83 28, (Mar. 1984) (Chief Judge 6, (June 1984) Geoffrey Carl (Judge Alprin); 3666-82 H. In re I); McIntosh, M.P., Moultrie United States v. Crim. (Judge Margaret Juv. No. A. J-1583-84 27, (Mar. 1984) No. F-4892-83 and United Gatti, States Haywood); No. United States v. Crim. 5, Lyles, (July v. Karen Crim. No. M-07050-84 (June 1984) George (Judge H. M-16424-83 1984) Shuker); B.M., (Judge Robert A. In re Juv. Jolbert, Revercomb); No. States v. Crim. 1, 1984) G.M., (May No. J-377-84 and In re Juv. 8, 1984) (Aug. (Judge Joseph M. F-4508-83 (May 1984) (Judge J-2466-83 A. No. Gardner); William L.J., (July Ryan); Juv. In re No. J-1676-84 Johnson, United States v. Crim. No. Urbina). 1984) (Judge Ricardo 9, 1984) (Judge King), (Apr. F-6622-83 Warren Pee, (June United States v. Crim. No. F-929-84 2. See note infra Oden, 1983), United States v. Crim. F- No. (June 1984), and United States conveys legislation] procedure,” id., Clause also mandated need case, power to laws which local not be in this enact “are followed because there “assure, no purpose, expressly nearly their is occasion to as as nature and possible, government each Branch limited to the boundaries of the District. to its They assigned respon- would confine itself are not laws of the United sibility.” Id. States....” Id. fallacy position, A basic in the majority’s Congress passes legislation pursu

When therefore, is its failure to heed the instruc- power, ant to the it en former and when tion of the court it I, Chadha acts laws under other clauses of Article underlying the purpose constitutional sphere it acts within a in which the assessing scheme to which we must look in government other branches of the federal validity legislative veto. Id. at role, play necessary also constitutional Indeed, majori- 103 S.Ct. at 2783. separa therefore within web ty’s application holding mechanical powers design. tion When cases, Chadha the instant which arise scale, however, on a it does acts local “special relationship in the context of the veto exercises its D.C. Columbia,” to the District pursuant Home Council enactments to the substance, giv- ante at exalts form over provision, Rule Act’s actions fall recognition ing only a faint nod of which, sphere within a of the three purpose requirements of the constitutional government, plays a branches of it alone it embraces. note, my colleagues correctly role. For as “Congress’ power over District of Co why It instructive examine encompasses lumbia Court Chadha struck down a full thus, government, Ex necessarily, veto over actions of a federal officer. The powers ecutive and well as the infirm, Judicial found to be veto was Legislative.” (quoting Ante at 820 North presentment part, by bypassing because Pipeline President, ern v. Mara Construction Co. the veto circumvented Co., (1982)). Pipe thon “important assuring Line purpose of Framers’ perspective grafted that a ‘national’ government Local involves 948, 462 at process.” U.S. duly Mayor participation of a elected added). (emphasis at Par- 2783 103 S.Ct. Council, City nega and and a limited and ticipation of the executive in the branch way, Congress. enactments tive Local lawmaking process presentment via Council, passed approved are the. purpose thus held to serve a national disapproved Congress, Mayor, if not “protecting] Executive Branch from become The no as law. President has Congress protecting] the whole [] signed process. Congress role in this Since 951, people improvident laws.” Id. at legislator is both and executive added). (emphasis 103 at S.Ct. 2784 District, by Congress to action taken emphasized of the that records disapprove acts does not invade Council an “un- Constitutional Convention there is prerogatives of another branch of the fed expression mistakable a determination government. The evil eral that bicam legislation Congress the national presentment requirements eralism and step-by-step, and delibera- be deliberate legislation designed federal to resist— 959, 2788 process.” at 103 S.Ct. at tive Id. “hydraulic pressure inherent inexorable added). no (emphasis plays Presentment separate within each of the Branches acts pursuant such role when power,” exceed outer limits its Cha Act. of the Home Rule the one-house veto dha, 951, 462 103 at 2784- S.Ct. special Similarly, veto at issue does not exist in this context. Con the one-house sequently, “single, wrought and amendments finely this case D.C.Council considered, impli- [constitutionally District’s laws does not exhaustively criminal

851 States, separation powers more v. cate the concerns in- United 398, 411 U.S. at 93 requirement herent in the bicameralism S.Ct. at 1676. The exercise of these I, see Art. legislation, 7, 1 & cl. unique, limited, geographically pow albeit federal out, 2. As the court in Chadha pointed expression D.C.Code, ers finds requirement approval by both houses of equivalent is the of a state code of laws. Congress for national laws was written Key Doyle, v. 14, 434 U.S. 68 nn. 13 & into “allay the Constitution in order to [] 98 S.Ct. 285 nn. 13 & 54 L.Ed.2d large fears of both the and small States, Palmore v. United (1977); 238 states,” 462 U.S. at S.Ct. (D.C.1972) (D.C.Code A.2d pro 578-80 The smaller states had “feared [that] States), visions are not laws of the United commonality among larger interest aff'd, 411 U.S. 93 S.Ct. disadvantage,” states would work to their (1973).4 L.Ed.2d larger skeptical states “were of a legislature pass favoring that could laws II. Id. ‍​‌‌​​​​​​​‌‌​​​‌​‌​‌‌​​​​​‌​‌​‌​‌‌‌​​​‌​‌‌‌‌‌‌​‌‍minority people.” Approval only by It is special, virtue of the legislation local by both Houses decreased the nature of these possibility power laws that of such imbalance. may delegated enact them be in its entire- require No similar concerns the same ty, District Columbia v. John R. here, protection where acts as Co., Thompson 100, 108-10, 346 U.S. the local legislature for the District of 1007, 1011-12, (1953); S.Ct. 97 L.Ed. 1480 Columbia under Clause Palmore v. broadly delegate did au- its States, 389, 397-98, 411 U.S. thority to the D.C.Council in the Home 1670, 1676, (1973),3 36 L.Ed.2d 342 Congress’ ability Rule Act. delegate inheriting state-type powers from the legislative broad to the D.C.Council ceding states. Security American & both Trust lawmaking demonstrates Rudolph, supra, Co. v. under App.D.C. Clause 17 Using at 45. is different in kind from powers, these inherited “feder- Con gress may state-type lawmaking, enact al” and in laws for addition takes this powers that “would exceed its Chadha completely case out of the para- ... in the context of Pal legislation.” national Chadha the court stressed digm. For 3. See District Thompson Columbia v. John R. offenses not therein defined would continue to Co., 100, 108, 1007, 1011, 346 U.S. 73 S.Ct. "punished provided by laws in force in the (1953); Capital L.Ed. 1480 see also Traction Co. {i.e., laws). Maryland District” Statutes Revised 580, 582, Hof, 174 U.S. 19 S.Ct. 43 L.Ed. States Relating of the United to the District (1899) (Congress "may exercise within the present § D.C.Code legislative powers legislature District all that the law, Maryland continues in force common D.C. State”). might of a State within the (1981), Code and the District’s courts possess powers ceding the common law fact, from 1790 to the District contin- States, states’ courts. (12 Pet.) Kendall United governed by ued to be states, ceding the laws of the 524, 614, (1838); L.Ed. 9 1181 16, 1790, 28, 1, July Act of ch. § 1 Stat. China, Pang-Tsu Republic U.S.App. Mow v. 91 130; 32, see 13 of ch. at Stats, Large Virginia at of 324, 327, 195, (1952), D.C. 201 F.2d 198 cert. (W. Hening 1823); Maryland 44 45, ed. 2 Laws of ch. 925, denied, 784, 2, (W. 73 S.Ct. 97 L.Ed. 1800). 1356 Kilty at 327 ed. In 1801 (1953). law, interpreting Congress this common previously reenacted those state laws ceded, 27, decisions, applicable Maryland to the area District’s courts use Act of Feb. Wat 1801, 15, 1, (codified Rives, ch. 2 U.S.App.D.C. Stat. 103 in Revised kins v. 75 125 F.2d 33, courts, (1941), Statutes States Relating 35 and the District's in con the United to the (1875)), courts, § 92 and from 1801 may try trast to federal offenders for "governed 1871 District was for the most formerly common law crimes defined under part Maryland Virginia under the laws of and as Davis, Maryland law. United States v. 71 they Byrd, existed at the time of cession." Dis- 749, (D.D.C.1947), F.Supp. 750 rev'd on other Rule," trict Columbia “Home 254, 16 Am.U.L.Rev. of 258 228, 99, grounds, U.S.App.D.C. 83 167 F.2d cert. (1967). Maryland freely statutes were 849, 1501, denied, 334 U.S. 68 S.Ct. 92 L.Ed. quoted compilations in all of laws before the (1948). 1772 D.C.Code, 1901, enacted, first and the provided 1875 edition of D.C. statutes that all 852 General, Attorney proper subjects legislation, whose action extends to all vetoed,

Congress engage not legislature; pow- had did much like state and this way lawmaking ‘legisla or in “exercise states, just er is limited as that of power.” n. tive’ 462 U.S. at 953 I, Article 10 of the section Constitution.5 Instead', at 2785 n. he had autho S.Ct. 16. (1981); D.C.Code 1-204 see Grant v. deportable rized a remain this alien to Cooke, (2 Mackay) 7 D.C. country specified “certain cir under the (1871)(identical prohibition on acts of 1871 by Congress in a cumstances” set forth legislative assembly D.C. interpreted by delegation circumscribed of administra “appropriate only court as limitation authority. 103 S.Ct. tive at them”); governments States or similar to 2786. Both of these lack at attributes —a Washington, Firemen’s Insurance Co. lawmaking capacity, combined with a U.S.App.D.C. at 483 F.2d delegation authority narrow —simulta (District state”).6 “akin to a neously agencies, characterize federal and majority may reсognize not the con- agencies distinguish those from the also inexorably clusions that follow its ar- According D.C.Council. Chadka gument Congress’ exercise of a veto Court, delegate Congress not law could legis- over D.C. Council actions is “federal making power to administrative officer subject present- lation” and is therefore permit because the Constitution does requirements. By ment and bicameralism delegation; such a and the exercise of such characterizing Congress’ actions under power an administrator would violate “federal,” 17 as Clause enactments presentment the Constitution’s and bicam Council, Congress’ lo- D.C. which exercises n. requirements. 462 U.S. at 953 eralism 17, by authority cal under Clause definition no n. 16. There is also in nature. If the must be “federal” doubt, however, is a D.C.Council legisla- exercising federal Council thus body, in to the marked contrast actions, power, inevitably tive of its all Attorney agencies, General and federal Chadha, subject under bicameral- we “no have held that actions are ism/presentment requirements, and must ‘legislative’ congres less because of approved by therefore be both Houses of layover required.” sional Convention Congress signed the President be- Dis Committee v. Center Referendum may go By requiring they fore into effect. trict Columbia Board Elections and hur- case to surmount the Ethics, (en (D.C.1981) 441 A.2d approval present- dles of two-House banc) addition, (plurality opinion). In ment a Council to the President before delegation contrast to circumscribed therefore, vetoed, majori- may action authority permitted administrative federal stage ty imposition sets of these power agencies, D.C.Council’s requirements same for all D.C. Council police power of the states. broad actions, cum- imposition for the and thus Thompson, supra; see Insur Firemen’s bersome, supervision over time-consuming Washington, U.S.App.D.C. ance Co. v. actions, Congress’ defeating inten- Un Council 483 F.2d delegating agencies, like federal tion broad Council’s as a state in D.C. had the District evaluates an enactment defined U.S.Code, provisions see U.S. determining vio- Council whether the action Columbia) (District (1982), (Index) interest, Code lates the Constitution or a federal clear legislation passed the District as it has to define delegation authority in or exceeds the wide 1983 in purposes § for of 42 U.S.C. state Cong.Rec. H6741 the Home Rule Act. See 127 response Court’s decision 1, 1981) (statement Rep. (daily Oct. ed. 418, 432, Carter, District Columbia Significantly, McKinney). the vetoes that have (District (1973) L.Ed.2d 613 93 S.Ct. Congress present issued from under the scheme right territory” purposes of not a or "state been few and far between. have 1983). under action period provided Although layover Council in the Rule Act. “law” until the Home passed.7 majority’s holding may provision the short run the within that had Since Rule, promoting period, be construed as Home the veto within that was exercised majority inadvertently legitimated law; has the Reform Act became never analysis theoretical for the repealed. framework never therefore 22-2801 may Thus, local law that well lead to drastic “legal rights, no duties or relations” contrary effects. appellants Gary or Cole were affected in any way by the veto. view, my a better framework anal ysis principles preserves that that The emphasized court also Chadha —one permit the D.C. Council maintain inde “legislative” only an act is if character pendence suggest in local matters —is one “rights, or affects duties relations” of an by ed court itself. The Court Chadha Legislative actor “outside the Branch.” held that bicameralism and whether 952,103 (emphasis 462 U.S. at at 2784 S.Ct. presentment for certain required con added). explicitly The Court noted ex- an gressional “depends not actions on the [] ception to present- the bicameralism and actions,” “upon form of such but whether requirements ment in actions taken each they properly contain matter which is to be House “to in purely bind itself” internal regarded legislative in its character and completely matters that are within the effect.” 462 U.S. at 2784. “legislative arena.” 462 956 n. “legislative” The Court held an act is 21. I suggest S.Ct. at 2787 n. accordingly, —and bicameralism and Congress upon that when acts D.C. Council presentment only must be when followed— enactments, only it affects its local itself activity Congress alters or af incarnation as the D.C. Council. When the fects “legal rights, duties and rela acts, Congress’ Council it exercises state- tions” of or offices. individuals 462 U.S. at powers like under 17 that have Clause been 952, 103S.Ct. at veto Chadha it, wholly delegated when unquestionably “legislative” had such a ef vetoes enactments it thus in D.C. Council fect, since it both invalidated act of the prevents proposed legislation effect its own Attorney (altering right General his going into effect. act) duty to and in addition affected Cha- dha’s by rendering deportable. status him III. Although majority aspect mentions this aside, disturbing impli- Chadha there are footnote, in cryptic case ante note flowing majority’s cations from the insis- 9, it does not demonstrate how the veto in compliance tence with the bicameral- “legal rights, this case alters the duties or presentment ism and clauses is an absolute anyone any entity. relations” of or congressional prerequisite constitutional veto under Home Rule Act action creates local even when operates simply preserve scheme exist though be that position may law. Its even ing law. This is illustrated refer well “statelike,” 17 are actions under Clause ence to the the cases at facts of hand. they “federal” actions and nevertheless are Appellants Gary and Cole were convicted comply equally must with federal constitu- under D.C. Had Code § requirements. Alternatively, tional the ma- Congress not vetoed the Sexual Assault Act, jority may saying that the Constitution Reform 22-2801 would have been only is not Constitution repealed. provision, how the federal Under the ever, District,8 the District’s “state” Act could not become but is also Reform course, legislating federally "[A]lthough legis- for the has 8. Of the Council considerable technically provisions power, of Article I other than lative it does not enact 'laws’ District under bound all Article I Clause limitations; but ‘acts’ which bеcome ‘laws’ after [] by Congress congressional layover.” enacted un- Convention Center and laws Ref- Comm., apply in effect der Article I that are nationwide erendum 441 A.2d at 911. 854

Constitution, separation powers principles in paralleling the constitutions inherent position disregards by giving legislative of the 50 states. Either the Constitution Supreme has that re advisory the fact functions even to courts estab- acting peatedly that while as the Dis held III, in Article lished the District under Congress legislature is not trict’s local time when those courts were also invested requirements appli constitutional bound see Federal Radio jurisdiction, with local Congress may context. cable in the federal Co., v. Commission General Electric 281 I, act outside the limitations of Article 8§ 466, 468, 389, 390, 464, U.S. 50 S.Ct. 74 when it creates state-like laws for the Dis Cereal v. (1930); Postum Cali- L.Ed. 969 Columbia, trict, Gibbons District of 116 Co., 693, 699-700, Fig Nut U.S. fornia 427, 429, 408, 6 S.Ct. 29 L.Ed. 680 284, 285-86, (1927). 47 S.Ct. 71 L.Ed. 478 (1866) (Congress is not bound constitu Explicit in these cases is that constitutional taxing pow on federal tional limitations its Congress’ restrictions on federal do Em District); legislating for the er when apply legislation not local enacted for Cases, 463, 500, ployers’ Liability 207 U.S. District.9 (1908) (Con 52 L.Ed. 297 S.Ct. It cannot be that Constitution is bind- gress is bound commerce clause not ing Congress equally both federal legislation); when it enacts local limitations holds, capacities, majority and local as the light and in of the fact that the District yet Congress acting capac- when its local representation in remains without Con may simply selectively disregard ity at will gress, body arguably acts outside the provisions. anomaly pre- certain This is scope generally I it of Article when creates majority, given its served here because the local law. See Heald v. District Colum issue, speak to has opportunity first bia, 259 U.S. failed to look to a more secure source (1922) (upholding taxation with L.Ed. rights itself. found within the Constitution addition, Congress representation). out In If definition of we maintain the III, permitted to act outside of Article context, legislature in the local as a “state” it local courts for the when creates Maryland to the state successor District without Article III tenure and sala only pro- legislature, we come closer not States, guarantees, Palmore v. United ry tecting resi- rights of District of Columbia supra, may beyond scope act prior to state citizens that existed III, dents Article creates local courts cession, carrying out Fram- but also general jurisdiction for the District with lat- adopting 17. The ers’ intent Clause beyond jurisdictional set limitations Moreover, significant and rights much more forth in section. ter are past than are the operated regard deserving protection has in the without context, part equally jurisdiction over "federal” offenses is the District. In this federal uniformity legisla- principle power, "protected “the federal III [in core” of Article Northern constitution, tion], Co., established in the secures the supra, Pipeline 458 U.S. at 70 n. Constr. oppression." Loughborough district n. and the district courts 102 S.Ct. at 2871 Blake, (5 Wheat.) 317, L.Ed. given III courts—are the United States—Article prosecutions. jurisdiction such exclusive jurisdic- III court 18 U.S.C. 3231. Non-Article example, the non-Article III nature of our 9. Fоr justified only be if offenses can tion over these explained legis- if all Clause 17 court cannot they equivalent are to "federal" offenses. nature, or if as lation is “federal” in even Palmore, Court succeeded legislature "state” for the District jurisdiction explaining our resort provi- comply bound to with all constitutional Congress' powers principle under Clause sions, including Article III. Our local court pow- from all other federal are different kind system jurisdiction has over D.C.Code exclusive Congress’ power It under Clause 17 offenses, ers. under offenses. If those created state-type better or offenses that create claims to be considered "federal” of- Clause fenses, hear against justifies use non-Article III courts to as "crimes and therefore States,” investiture in a their exclusive those claims. justified. non-Article III court cannot be For ’ rights presentment Representatives, and bicameralism Article I 2 cl. Al- congressional supervision legis- of local though unlikely that District citizens lation, and “rights” the two sets of agreed right had to forfeit either when incompatible, given maintaining that cession, they yielded did take latter undermines the former. It is a mis- away using theory both majori- that the take, therefore, to view the formalism of ty opinion supports Congress’ power —that presentment bicameralism and as somehow wholly over the District “federal” protective of the interests of District of nature, and that cession D.C. residents citizens, Columbia or even as neutral in accordingly became “federal” ex- citizens regard. premises that Its —that clusively, retaining rights none guar- only single, can act in a capacity, federal anteed the Constitution to all state citi- agen- and that the D.C.Councilis a federal surrounding zens. The record adoption cy actually signifi- undermine other more — shows, however, of Clause 17 that protections cant inherent in the Constitu- Framers had no abrogating intention of tion. It is due to the fact that the distinc- right through either cession. In The Fed- early tion at an date became blurred that stated, eralist No. Madison “the inhab- the D.C. resident has become an anoma- itants the new will find suffi- [of District] ly only, stripped “federal” citizen of all —a cient inducements of interest to become attributes of the subject state citizen and willing parties cession,” for District only protections, to “federal” many of residents “will have had their in the voice which, illustrate, as the above-cited cases government election of the which is to ex- Congress may disregard legislating them,” i.e., ercise Congress. locally. 267-68). (Lodge ed. As one com- Although slate, I do not write on a clean written, mentator has one, I write on a clear approach with an during prolonged At no time debates that is consistent with the Framers’ ex- was there upon mention of the effect pressed intent. An examination of the cir- (whether nationally franchise or lo- cumstances surrounding adoption cally) of the then residents the ces- Clause 17 demonstrates that the Framers acceptance by Congress sions and the contemplated never that territory.... ceding the ceded permittеd be to use cession to strip away prevented states could have the situation rights accorded all state citizens by reserving that now exists Constitution, rights that “attached to [Dis- rights of their citizens should not im- trict irrevocably” when the Dis- residents] paired. Such a reservation would have trict part was a ceding states. insured the continuation of franchise Bidwell, 244, 260-61, Downes v. However, rights. it is reasonable to as- 770, 776-77, 45 L.Ed. 1088 ceding sume states felt such a Cession did not take the District “out of necessary, reservation was not that such the United aegis States or from under the political rights went with the transfer Constitution,” party because no jurisdiction. the cession contract “had ever consented to construction of the cession” that would [a] Franchino, Constitutionality Home permit abrogation rights. such an Id. Representation Rule and National 1), (pt. the District Geo. cession, prior As state citizens D.C. (1957-1958). District res- L.J. residents participate were entitled to restoring right idents succeeded in their election of the President via the electoral II, vote in Presidential elections college addition, under Article 1. In only through the medium of a they as state citizens then were accorded the (Amend. 23). right People of “the constitutional amendment several States” representatives to elect right Congress, to the House of The a national voice in voluntarily never have relinquished, which was never District residents would been in my speedily view should be restored.10 recognized possible had the courts local acts Congress in the context as a addition, as state citizens District resi- republican is guaranteed legislature subject form and to the same dents were state Constitution, government by of Article the capaci- its local constitutional limitations on IY, language 4. Madison’s in The Feder- imposed, ty as would otherwise have been did again alist that the Framers indicates cession, upon Maryland. the of absent State contemplate right not this basic that precisely the court noted in As circuit 1949: through be undermined cession: Madison of process due the Fifth Amend- [T]he expressed “every imaginable the view that imply ment should include or for the objection” to cession “obviated” of the of inhabitants District Columbia legisla- municipal virtue of the fact that “a equal protection of the laws enacted purposes, ture local from their for derived Congress legislature as the local of the suffrages, own course allowed will of that District. It is unthinkable Con- however, Congress, asserting the them.” gress, enacting applicable only statutes “wholly power, set majority’s federal” jurisdiction, in this not the does violate right responsi- in and aside this vested process due clause of the Fifth Amend- bility in of for local D.C. matters a handful if the of Dis- appointed right people to a ment it denies commissioners.11 The representative government laws, form was not equal just protection trict 1973, Act. until in the Home Rule restored “equal the legislature a state violates protection” clause of the Fourteenth rights are of District residents Individual thing. if it the same Amendment does legis- protected also under the “state bеtter under “federal” lature” rubric than v. District Hamilton National Bank majority. For ex- scheme followed 109, Columbia, U.S.App.D.C. 115, 176 ample, having the definition of 891, denied, F.2d cert. federal, single, capacity, but a led to (1949). L.Ed. 548 S.Ct. guarantees to equal protection denial of maintaining capacity analy- By the dual District citizens under when the Su- analysis dis- Congress’ actions—an sis preme protection equal read an com- original in- regarded majority by the —the ponent pro- into the due Fifth Amendment partially is thus carried tent of Framers Bolling Sharpe, cess clause. See is made Home Rule out: District’s U.S. 98 L.Ed. secure, rights more and restoration 100-year gap between citizenship District residents of national adoption of the Fourteenth Amendment possibility. protections to than a distant application and becomes more up only government nothing place took in after federal There is inherent the Constitution electing capital. prevents that District residents from new Id. at 223. residence in the representatives. This demonstrated national District residents did virtue fact that Rights self-government time time have and for continue to exercise the national franchise period all, citizens; again proved apply to all been "exclu- of time had taken is, after except people of the District power original en- District. sive” over the Columbia[, only citi- are American who] abling Act for the District allowed the laws right self-govern- zens have had the who operative Maryland Virginia until to remain by Congress. away them ment taken from actually up resi- the time that took Comm.Print, the District of Co- Home Rule for During period D.C. interim dence here. Legislative Background and lumbia right suf- residents exercised their to national History 9682 and Related H.R. H.R. frage notwithstanding fact that the District Culminating of Columbia Bills already under the a "federal” enclave and Reorgani- and Governmental Self-Government Franchino, Congress. su- “exclusive" control of (House on the District of Act Committee zation pra for national at 214. District residents voted 1974), (remarks Represent- through held officers from 1790 election Diggs). ative took November 1800. Disenfranchisement singling group out arbitrarily IV. citizens different, harsher, and often treatment. Identifying rights ces- survived The cases set out footnote 13 illustrate citizens, rights sion as the of state result, contexts, correlating many maintaining the be- different distinction lawmaking spheres U.S.Codes, tween federal and local equating the D.C. local District, important only D.C. and federal law: residents of the District citizens, residents, also to but all inevitably than differently treated resi- First, two reasons. because fifty example, dents of the states. For power local is different character right ap- District residents are denied a Congress’ power federal that local peal to Court from decisions may delegated in entirety. be District court; of this District were for residents a Co., v. R. Thompson Columbia John period right of time substantial denied a supra. delegation, broad This with control all action accorded to state under citizens protect way retained to federal interests 1983; post-conviction 42 U.S.C. reviеw of § legislative veto, of an easily exercised is in Superior Court in Article sentences III the interest and its constitu- limited; sharply courts is and District resi- precious ents because saves session charged dents with federal offenses can be hours spent upon that would be otherwise differently treated than all other U.S.Code local bearing upon affairs that have no violators. also arbitrary makes affairs of the a nation as whole.12 More- among distinctions D.C. residents: similar- over, only by it is virtue federal/lo- ly charged situated individuals with D.C. cal distinction that the local au- bemay disparately Code offenses treated thority may prevented be enacting variety of contexts because provisions that would intrude Con- into gress’ equation of local with federal law. A fur- Stoutenburgh federal domain. See Hennick, 141, 147-48, v. consequence 129 U.S. ther of equating 9 S.Ct. federal and 256, 257, (1889) 32 L.Ed. (power 637 to local is that federal both here courts affect may interstate commerce del- not be Virginia equation justify and in to use egated authority). to local jurisdiction some the retention of Code, arising cases under the local under- Furthermore, requiring Congress sep- to mining ability preserve of this court arately to rationalize its treatment of District spheres, uniformity interpretation residents appli- in two distinct in the and federal local, prevent Congress serves to from cation of our local law.13 Rule, statutes," grel Prior to Home been had since the Court held has also upon pass called ship requirements to on such issues as member- D.C.Codelaws cannot be considered "statutes of police, regula- for local purposes appeal, Key the United States” for v. Mall, kite-flying tion of proposed 59, 280, on the and the Doyle, 434 U.S. 98 S.Ct. L.Ed.2d 238 54 addition of seats to the here. J., football stadium (1977); (White, dissenting). By see id. at 74 Comm.Print, 11, (remarks supra note therefore, analogy, virtue the "federal” D.C. Eagleton). Senator significant legal residents have lost avenue appeal right Supreme to redress—an Court. Characterizing as a "federal” in Moreover, the anomalous status of the District strumentality, Supreme Court to refused justify has been used to the near elimination of give right District residents same is ac post-conviction Superior all review of bring corded against residents the 50 states to actions criminal in Article courts. Be- convictions III their local officials under U.S.C. D.C.Code are considered cause offenders not Carter, § 1983. District v. offenders, they may post-convic- “state” not seek 418, 610, 602, 34 L.Ed.2d 613 III courts 28 U.S.C. tion review Article under (1973) (District territory" not a "state or for (1982). they because also not § 2254 And reasons, 1983). purposes §of For similar offenders, they may seek review “federal" Court equivalent peal refuses consider D.C.Code statutes (1982) exception- under 28 U.S.C. 2255 unless purposes ap state statutes presented. Swain v. al circumstances are See right as of to the Court. Palmore Pressley, 430 U.S. 97 S.Ct. 51 L.Ed.2d States, 389, 395, v. United 93 S.Ct. (1977) (D.C.Code post-conviction review 36 L.Ed.2d 342 Palmore has procedure, be D.C.Code must found to treating “mon- effect D.D.Code enactments as example, For results. anomalous Greene, "inadequatе U.S.App.D.C. Article or ineffective” warrant States Thus, review). among (1973), III alone all federal circuit held court F.2d offenders, sen- all D.C.Code offenders state and U.S.Codes were both the D.C. that because local courts are denied access prosecutor tenced nearly our Congress, could enacted charge III cases to Article courts for predicate all as the felo- offense U.S.Code "Privilege statute, of Habeas exercise of the Corpus” Writ felony murder ny under the D.C.Code I, cl. 2. See U.S.Const.Art. review. offender could be despite no state the fact that Also, un those who commit offenses because States Per- similarly charged. And in United considered have com der D.C.Code are (4th Cir.1974), ez, 488 F.2d States,” they against the United mitted "offenses D.C.Code crim- because Circuit held that Fourth custody Attorney are General, committed against the provisions laws are "offenses inal normally prison houses them in a who States,” district court the federal the United Lorton, Virginia. Although facility this "fed try a Lorton inmate Virginia jurisdiction to has significant custody has been deemed eral” on a assault Lorton under D.C.Code escape try enough D.C.Code offenders who officer, undermining the abili- thus correctional court, escape stat under the U.S.Code federal uniformity in the insure ty of this court penalty pro elements its different ute — with interpretation application of our law. statute, parallel see D.C.Code visions than analogy of D.C.Code offenses to States, (D.C. federal 334 A.2d Rivers v. United justify offenses is also used to custody continued 1975) Attorney deemed not General — trial of D.C.Code offenders in the federal courts for a Lorton inmate suit sufficient as a basis District, notwithstanding against the conferral of prison under the Federal Tort officials Act; jurisdiction all local Superior cut criminal on the is off under Claims that avenue 11-502(3) (1982), government has actu Court. that the District Under D.C.Code a rationale charged Lorton. Cannon v. United D.C.Code al control over violator also with a federal 216-17, 203, 211-12, States, U.S.App.D.C. may joint offense 207 tried in a be indictment in 1128, 1136-37, (1981). 1141-42 When 645 charge F.2d federal court. Even if the federal is provisions earning applicable dismissed, it "good for ultimately comes to the the federal court tries however, Attorney prison, time” at the using these offenders federal standards. See again custody is deemed sufficient Brown, 311, General U.S.App.D.C. United States v. 157 federal, justify application than local rather 1314, (1973) (applying F.2d 483 D.C., by good offenders time rules to sentenced charged federal bail rules to defendant with transferred from Lorton to courts and local court); D.C.Code in offenses tried federal Unit- Neverson, hospital. v. 393 A.2d a mental Dobbs 1, 8, Belt, 14, U.S.App.D.C. ed States v. 169 514 147, (D.C.1978). 149 & n. 6 837, 844, (1975) (holding F.2d 850 that federal Additionally, Attorney General cus because evidentiary impeachment by prior standard for may tody, offenders be D.C.Code transferred apply conviction D.C.Code should offenders there, prisons. Once because D.C.Code federal court). may tried in The result federal be a by "crimes are defined courts as offenses similarly difference in outcome in the trials States,” against D.C. are the United offenders by situated virtue D.C.Code offenders though they prisoners are for federal treated prosecutor, court selected the federal since purposes parole. Offenders who are transfer evidentiary applied standards different have paroled are under red institutions to federal substantive effects. parole under the criteria rather than federal parallel prosecutions of of- D.C.Code continued (while prisoners in criteria state D.C. in a also results differ- fenses in federal court rights), parole state retain their federal facilities District residents who are ence in treatment for parole application of these federal in the violations District’s tried U.S.Code longer prison guidelines may D.C, result in terms U.S.Code violat- than for all other federal court facilities for iden offenders in federal than District, prosecutor For in the ors. See Cos who remain Lorton. tical offenders greater charge Smith, may with a federal U.S.App.D.C. a defendant grove 697 225 count, 1125, (1983). of- in and with D.C.Code Mark offense fense, one See also Goode v. F.2d ley, 1129 394, 973, provision, parallel U.S.Code U.S.App.D.C. 603 976 instead F.2d count, of the fact that the (1979) (since in a second mindful "crimes D.C.Code offenses are States,” provision greater pen- maximum local carries against under the sentences counterpart. alty If defend- may aggre than federal its under the U.S.Code be D.C.Code and counts, may he receive on both though ant convicted gated federal and state sentences —even longer au- parole may than the maximum may a total sentence date be combined—and See, e.g., scheme. aggregate thorized under the federal sentence based on an calculated Leek, criteria, U.S.App.D.C. notwithstanding parole United States v. using federal (1981) (U.S. Attorney may F.2d reached result in more such a formula fact that Robbery denied, Act to served), "circum- outside Federal Bank cert. time carefully hierarchy crafted vent scheme’s 62 L.Ed.2d Canty, U.S.App. penalties”); United States as “crimes of D.C.Codeoffenses The definition (1972) (“by many 469 F.2d against other D.C. States” has led to the United sum, 23, appellant’s In federal constitutional buffers be- conviction can be affirmed (in capacity) tween local States, on the basis Arnold v. United maintained, District citizens best (D.C.1976) banc). (en 350 A.2d 335 equality of District with all residents pronouncement court’s of the abolition of preserved, other state citizens is main- requirement corroboration all sex taining analogy of the local gratuitous. poli ual offenses is While authority of over the District to cy may one, well be a sound we need not government. Although that of a state join decide issue I II of here. Part protections applicable constitutional Judge Nebeker’s concurrence. spheres different federal and local were residents, never forfeited their TERRY, Judge, concurring: Associate continuing vitality application is in- by retaining sured the dual federal/local I join part Judge I of Nebeker’s con- analysis Congress’ actions. And this general, curring opinion. agree I with analysis undoubtedly permits Congress to рosition judge the trial the Cole supervision delegated exercise local severability. case on the issue How- legislative authority by way of the Home ever, agree Judge I also Nebeker that Act’s Rule vetoes. has decided the issue for us respectfully I majority’s dissent from the enacting, only days a few before we heard holding provision of the Home argument cases, express these sever- (Part IV). Act is Rule If I unconstitutional ability provision.1 Since our decision join majority assuming were governed by statute, this new I see no need unconstitutional, the veto I point further, except en- discuss agree that it is severable from the already Judge dorse what has Nebeker join remainder of Act. I also said. majority’s disposition of other contentions. corroboration, question On agree the I BELSON, Judge. Associate majority with the the that time has come requirement abolish the en- corroboration in join I opinion except court’s for its tirely. properly Since the issue is before complain- discussion of corroboration of a case, allegations VII(B)(1) us in join part ant’s of a I in sexual offense. As opinion the court’s acknowledges opinion. join at note I majority part also instrumentality, leads to different and often reaching variety assault out to catchall harsher treatment of contexts for venturing Columbia Code ... District of residents the District than for residents of scheme, addition, prosecution was the federal 50 states. it often undermines outside carefully craft- ability system to circumvent scheme’s court able autonomous local penalties obtain a hierarchy preserve uniformity ... [and] ed here to establish and interpretation longer Maintaining than the maximum authorized sentence of local law. robbery highest the bank spheres tier of under distinction between federal and local Jones, scheme); also United States v. against see serves the District as shield these un- (1975) U.S.App.D.C. 527 F.2d simultaneously preserves warranted effects and J., Alternatively, (Wright, dissenting). if the principle autonomy pur- of local is the trial, proved or if cannot be U.S.Code offense pose motivating force home rule. behind pleads guilty D.C.Code defendant plea bargain, charge part the defendant of a 1. 131(1), In Pub.L. No. 98 Stat. 1975 may punishment defend- harsher than receive a (1984), Congress dealing added a new section in other charged offense with the same ants severability to the District of Columbia charged under who can be courts federal Act, Self-Government which until then had con- event, by of the virtue In either the U.S.Code. nothing tained severability. the issue of against with "crimes equation of D.C. offenses provision, new original which became section 762 States,” singled are District residents Act, went into effect on October arbitrary, disparate, consideration. out appears Supplement It Thus, feder- equation D.C.Codewith Code, volume 1 the District of Columbia D.C.Council, law, definition and the al page 28. D.C.Code, a federal now amends which VII(A), sentencing holds that Cole’s

argument totally merit. without jury issue raised

As selection I

appellant Gary, believe that the Robinson wrongly decided.

and Boone cases2 were however, binding recognize, they

I majori-

precedents, and thus I concur erred, but

ty’s holding the trial court

that its error was harmless. ‍​‌‌​​​​​​​‌‌​​​‌​‌​‌‌​​​​​‌​‌​‌​‌‌‌​​​‌​‌‌‌‌‌‌​‌‍WEST, A. Edward Jackson and

Benson Britt, Appellants, A.

Michael STATES, Appellee.

UNITED to 84-289.

Nos. 84-287 Appeals. of Columbia Court of

Argued March 21, 1985.

Decided Oct. States, States, (1983); 2. Robinson v. United (D.C. A.2d 1135 v. United Boone 448 A.2d 853 1984) banc). (D.C. (en denied, 1982), rehearing A.2d en banc

Case Details

Case Name: Gary v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Oct 17, 1985

Citation: 499 A.2d 815

Docket Number: 83-796, 84-703 and 84-997

Court Abbreviation: D.C.