851 F.2d 434 (D.C. Cir. 1988), 86-7037, Silverman v. Barry

Docket Nº:86-7037.
Citation:851 F.2d 434
Party Name:Robert I. SILVERMAN, et al., Appellants, v. Marion BARRY, Mayor of the District of Columbia, et al.
Case Date:July 15, 1988
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 434

851 F.2d 434 (D.C. Cir. 1988)

Robert I. SILVERMAN, et al., Appellants,


Marion BARRY, Mayor of the District of Columbia, et al.

No. 86-7037.

United States Court of Appeals, District of Columbia Circuit.

July 15, 1988

       As Amended on Denial of Rehearing En Banc July 15, 1988. Prior report: 845 F.2d 1072.

       Appeal from the United States District Court for the District of columbia.

       Burton A. Schwalb and Lucinda J. Bach, Washington, D.C., were on the suggestion for rehearing en banc for appellants.



       PER CURIAM.

       Appellants' suggestion for rehearing en banc has been circulated to the full court. No member of the court requested the taking of a vote thereon. Upon consideration of the foregoing, it is

       ORDERED by the Court en banc that the suggestion is denied.

       A statement of Circuit Judge SILBERMAN concurring in the denial of the suggestion is attached.

       SILBERMAN, Circuit Judge, concurring in the denial of rehearing en banc:

       Any time the state gives a group of persons power to prevent an action by another--if the group's majority or some other proportion wishes to do so--the state increases the bargaining power of that group vis-a-vis the proponent of action. I am inclined to agree with the D.C. Court of Appeals that the constitutionality of this kind of legislative "delegation" cannot, if one thinks hard about it, ultimately turn on whether the legislative scheme requires the group's initiative to remove a prohibition or to impose one. Hornstein v. Barry, 530 A.2d 1177, 1183 (D.C.App.1987), reh'g en banc granted, 537 A.2d 1131 (D.C.App.1988). I suppose in the former situation there may be a slightly greater inference that the state has--as a matter of policy--determined that the action contemplated is generally disfavored; nevertheless, for the

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constitutionality of a given statute to turn on whether the group has the burden of going forward to stop proposed action or can simply exercise a veto when the proponent initiates action seems quite tenuous.

       Nor do I think much turns on the panel's recognition that the District has a legitimate "police power" interest in adequate rental stock. See Silverman v. Barry, 845 F.2d 1072, 1087 (D.C.Cir.1988). I doubt there is any subject matter that falls outside of a state's police power. See Nebbia v. New York, 291 U.S. 502, 523-25, 54 S.Ct. 505, 509-11, 78 L.Ed. 940 (1934). 1 One could argue, moreover, that this condominium-conversion law--at least over time--will actually reduce rental apartments because it, like rent control laws, creates a powerful disincentive to the construction of new rental apartment buildings. 2

       Undeniably, however, the statute will enhance the bargaining power of existing tenants who live in affected buildings. As Judge Mikva noted, the Act was passed explicitly to affect "the bargaining position of tenants." 845 F.2d at 1087. One way of looking at the statute--and in my view the correct way--is to recognize the legislature deliberately sought to enhance tenants' property rights relative to owners of apartment buildings. Landlord-tenant law traditionally is fashioned to strike what a particular government thinks is the appropriate bargaining relationship between owners and renters, just as collective bargaining law strikes an analogous balance between companies and unions. Thus, had the statute absolutely barred landlords from evicting tenants without their consent in order to convert the building, or for that matter for any other purpose so long as no unconstitutional taking was implicated (assuming, for example, fair rents were required 3 ), I do not believe a serious constitutional question appears. See Griffin Development Co. v. City of Oxnard, 39 Cal.3d 256, 217 Cal.Rptr. 1, 703 P.2d 339 (1985) (upholding regulations that effectively prohibited condominium conversion against a Fifth Amendment takings challenge); Troy Ltd. v. Renna, 727 F.2d 287 (3d Cir.1984) (upholding a statutory tenancy of forty years duration for senior citizens following a condominium conversion against a Fifth Amendment takings challenge).

       The unconstitutional delegation issue arises apparently then only because every tenant is not granted a veto over a conversion plan that would lead to his or her eviction; instead a majority vote governs. Since these cases are thought to involve a deprivation of the rights of the property owner, it seems passing strange that the constitutional question arises because less power rather than greater is delegated to the tenants as a whole. I think it must follow that if every...

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