Hornstein v. Barry

Citation560 A.2d 530
Decision Date20 June 1989
Docket NumberNo. 83-242.,83-242.
PartiesDavid HORNSTEIN, et al., Appellants, v. Marion BARRY, et al., Appellees.
CourtCourt of Appeals of Columbia District

Burton A. Schwalb, with whom Laura A. Kumin and Patricia L. Maher, Washington, D.C., were on the brief, for appellants.

Lutz Alexander Prager, Asst. Deputy Corp. Counsel, with whom Frederick D. Cooke, Jr., Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on the brief, for appellees.

Richard C. Eisen, Washington, D.C., with whom Eric M. Rome was on the brief, for amici curiae 2627 & 2633 Adams Mill Road Tenants Ass'n, et al.

Before MACK, NEWMAN, FERREN, BELSON, TERRY, STEADMAN and SCHWELB, Associate Judges, and REILLY and PRYOR,* Senior Judges.

ON REHEARING EN BANC

SCHWELB, Associate Judge:

Appellants challenge the constitutionality of the District's Rental Housing Conversion and Sale Act, D.C.Code §§ 45-1601 et seq. (1986 and 1988 Supp.) (hereinafter the RHCSA or the Act). This statute provides in substance that an owner of rental housing may not convert it to condominium use unless fifty per cent of the eligible tenants consent to such conversion. We uphold the validity of the tenant consent requirement and reject the contention that it constitutes an improper delegation of legislative authority. We perceive little, if any, legal basis for the appellants' alternative contention that the Act, alone or in conjunction with the District's rent control laws, constitutes an unconstitutional uncompensated "taking." Nevertheless, we are constrained by the procedural posture of that issue to remand the case to the Superior Court for further proceedings.

I

Appellants own the Savoy, a 203-unit apartment complex in northwest Washington. For many years, they have sought to convert the Savoy into a condominium. In May, 1981, they filed this action in the Superior Court against the Mayor and other District of Columbia officials (the District), alleging that the defendants had unlawfully denied their application for conversion, in violation of their statutory and constitutional rights. In January, 1983, Judge John F. Doyle granted the District's motion for summary judgment and dismissed all of the owners' claims.

The owners appealed to this court. On September 11, 1987, a three-judge panel affirmed Judge Doyle's dismissal of the owners' statutory claims, but held that the tenant consent requirement constitutes an improper delegation of legislative authority and deprives the owners of property without due process of law. The panel found that there was a genuine issue of material fact which precluded the entry of summary judgment as to the uncompensated taking claim and remanded for further development of that issue. Hornstein v. Barry, 530 A.2d 1177 (D.C. 1987). On February 19, 1988, we granted the District's petition for rehearing en banc and vacated the panel opinion. 537 A.2d 1131 (D.C. 1988).

As this case was proceeding towards resolution, similar contentions regarding the RHCSA were being considered a few blocks away by our federal appellate colleagues. On May 3, 1988, in a suit brought by a different group of owners, a threejudge panel of the United States Court of Appeals dismissed a number of statutory and constitutional claims, some of them identical to those urged upon us in the present case. Silverman v. Barry, 269 U.S.App.D.C. 327, 845 F.2d 1072 (1988). That court explicitly declined to follow the reasoning or the decision of the panel of this court which had invalidated the tenant consent provisions. Id. at 341-42, 845 F.2d at 1086-87. On July 15, our federal colleagues, without a single dissenting vote, denied rehearing en banc in Silverman, 271 U.S.App.D.C. 179, 851 F.2d 434 (1988). On November 14, 1988, the Supreme Court denied certiorari. ___ U.S. ___, 109 S.Ct. 394, 102 L.Ed 2d 383 (1988).

II

The RHCSA forbids the conversion of a rental apartment complex into condominium units unless the Mayor certifies that a majority of the tenants qualified to vote1 have consented. §§ 45-1611(a), 45-1612. The Act is the culmination of a long history of restrictions on conversion which is described in some detail in Silverman, supra, 269 U.S.App.D.C. at 330-32, 845 F.2d at 1075-77, and we need not repeat it here.2 It is but one part of a comprehensive scheme of regulation3 designed to protect the rights of tenants, particularly poor and elderly tenants who, in the Council's reasonable view, merit and need such protection.

In enacting the RHCSA, the Council made a number of findings, summarized below, in which it explained the need for the legislation. According to the Council, there exists a continuing housing crisis in this city, with a severe shortage of rental housing and a low vacancy rate, particularly in relation to units which lower income tenants can afford. § 45-1601(2). The conversion of rental units to condominiums4 or cooperatives depletes the rental housing stock. § 45-1601(3). Lower income tenants, particularly the elderly, feel the bite of this depletion most severely, for post-conversion costs are usually beyond their means, a condition which results in forced displacement, serious overcrowding, and disproportionally high housing costs. § 45-1601(4). Experience with prior conversion controls has demonstrated that such restrictions have not been sufficiently effective, and tenants who are most directly affected by conversion should be given a voice in the determination whether their rental housing should be converted. § 45-1601(7). The foregoing findings persuaded the Council that enactment of the RHCSA was required to preserve the public peace, health, safety and general welfare. § 45-1601(8).

In § 45-1602, the Council enumerated the purposes of the legislation, which parallel and complement the legislative findings summarized above. The Act was designed, among other things,

[t]o discourage the displacement of tenants through conversion or sale of rental property, and to strengthen the bargaining position of tenants toward that end without unduly interfering with the rights of property owners to the due process of law.

§ 45-1602(1).

The comprehensiveness and specificity of the Council's findings compel us to conclude that the District confronted a serious problem which the Council had the right and duty to address. The question is whether the means by which the Council addressed it are constitutional.

III
A. Presumption of Constitutionality.

Our Constitution is the supreme law of the land, and at least since Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803), courts in this country have had the authority to invalidate legislation which contravenes its proscriptions. We do not, however, sit as a superlegislature to weigh the wisdom of statutory enactments. Ferguson v. Skrupa, 372 U.S. 726, 731, 83 S.Ct. 1028, 1031, 10 L.Ed.2d 93 (1963). A decent respect for the coordinate branches of government dictates that we exercise sparingly the power to strike down laws which have been duly passed by the elected representatives of the people. The Constitution presumes that even improvident legislative decisions will be rectified by the democratic process, and that "judicial intervention is generally unwarranted no matter how unwisely we may think that a political branch has acted." Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 943, 59 L.Ed.2d 171 (1979). The judiciary cannot encroach on the domain of the popularly elected branches without imperiling our most basic institutions. Sinking Fund Cases, 99 U.S. 700, 718, 25 L.Ed. 496, 504 (1878). Indeed, a court "usurps legislative functions when it presumes to adjudge a law void where the repugnancy between the law and the Constitution is not established beyond reasonable doubt." National Maritime Union of America v. Herzog, 78 F.Supp. 146, 155 (D.D.C.) (three judge court), aff'd per curiam, 334 U.S. 854, 68 S.Ct. 1529, 92 L.Ed. 1776 (1948).5

Laws adjusting the burdens and benefits of economic life come to the courts with a presumption of constitutionality, and one complaining of a due process violation must establish that the legislature acted in an arbitrary and irrational way. Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 16, 96 S.Ct. 2882, 2892, 49 L.Ed.2d 752 (1976). The elected branches have broad authority to determine the legislative facts on which a statute is based, and those challenging their judgment must convince the court that the legislative findings could not reasonably be conceived to be true by the governmental decisionmaker. Vance v. Bradley, supra, 440 U.S. at 111, 99 S.Ct. at 949. Only last term, the Supreme Court reaffirmed these principles with respect to the authority of states and their instrumentalities to regulate housing conditions in general and the landlord-tenant relationship in particular — the very kind of regulation at issue here. Pennell v. City of San Jose, 485 U.S. 1, n. 6, 108 S.Ct. 849, 857-58 n. 6, 99 L.Ed.2d 1 (1988).

We emphasize that mere lip service to the presumption of constitutionality is insufficient, especially where, as in the present case, the legislation under attack addresses issues which are traditionally a proper subject for the exercise of the police power. Accordingly, the owners must make a very compelling showing indeed before this court may invalidate the RHCSA without impermissibly encroaching upon legislative prerogatives.

B. Delegation, Standardlessness, and Due Process.

Although they acknowledge the applicability of the presumption of constitutionality, the owners contend that the tenant consent requirement impermissibly delegates legislative authority to private citizens. They claim, in effect, that the RHCSA relegates their right to use their property as they see fit to the caprice of tenants who are free to act to promote their own private advantage rather than in the public interest. They argue that no standards are provided for...

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