US v. Alston, 90-167

Docket Nº90-168.
Citation580 A.2d 587
Case DateAugust 13, 1990
CourtCourt of Appeals of Columbia District

580 A.2d 587

Charles S. ALSTON, Appellee.

District of Columbia, Intervenor.

Nos. 90-167, 90-168.

District of Columbia Court of Appeals.

Argued May 8, 1990.

Decided August 13, 1990.

580 A.2d 588

David M. Zlotnick, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher, Thomas J. Tourish, Linda Mullen, Julieanne Himelstein and David H. Saffern, Asst. U.S. Attys., were on the brief, for appellant.

Samia Fam, Public Defender Service, with whom James Klein, Public Defender Service, was on brief, for appellee.

Leo N. Gorman, Asst. Corp. Counsel, with whom Herbert O. Reid, Sr., Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, and Lutz Alexander Prager, Asst. Deputy Corp. Counsel, were on the Memorandum In Lieu of Brief, for intervenor.

Before ROGERS, Chief Judge, and FERREN and SCHWELB, Associate Judges.

ROGERS, Chief Judge:

The issue in this appeal is whether the Council of the District of Columbia has authority under the District of Columbia Self-Government and Governmental Reorganization Act (Home Rule Act), D.C.Code § 1-229(a) (1987 Repl.), to pass successive, substantially identical emergency acts to preserve the status quo while identical legislation enacted by the Council after two readings is pending before Congress for review. Appellee Charles Alston was charged in two separate multi-count indictments with possession with intent to distribute cocaine while armed, D.C.Code § 33-541(a)(1) (1988 Repl.), and possession of a firearm during the commission of a dangerous offense, D.C.Code § 22-3204(b) (1989 Repl.).1 In granting his motions to dismiss these charges of the indictments, the trial judges ruled, relying on our decision in District of Columbia v. Washington Home Ownership Council, Inc. (Washington Home), 415 A.2d 1349 (D.C. 1980) (en banc), that upon the expiration of the "Law Enforcement Emergency Amendment Act of 1989,"2 the D.C. Council was without authority to pass a second substantially identical emergency act to maintain the status quo until an identical temporary act took effect following congressional

580 A.2d 589

Appellant, the United States, and intervenor, the District of Columbia, maintain that Washington Home is not dispositive since the extension of the period for congressional review of criminal enactments from thirty to sixty days makes impossible the completion of congressional review of Council legislation before expiration of an emergency act. Therefore, they maintain, where the Council has submitted legislation for congressional review and passes a subsequent emergency act to maintain the status quo, the Council is acting within its delegated powers, and is not attempting to circumvent congressional review nor the statutory requirement that permanent legislation may be enacted only after two readings by the Council, the principal evils found in Washington Home.

In words we cannot improve upon, the District of Columbia has argued:

The District of Columbia Home Rule Act contains a glaring anomaly: it authorizes the Council to adopt emergency legislation for ninety days, using expedited procedures, but does not permit normal criminal legislation to take effect until weeks or months after the emergency legislation has expired. This is so even when the normal legislation has promptly gone through the two readings required by the Home Rule Act, been signed by the Mayor, and immediately transmitted to Congress for its sixty legislative-day review.
The trial judges in the present appeals held that the District government is powerless to pass a second emergency act in order to bridge the gap that inevitably occurs when the initial emergency act expires before the congressional review period ends. Those holdings leave the local government powerless to cope with threats to public safety lasting more than ninety days, no matter how serious, and no matter that normal legislation to cope with the threat cannot under any circumstances take effect by the ninetieth day because of explicit structural limitations in the Home Rule Act. This result is inconsistent with congressional intent that the District government have primary responsibility for legislating in emergencies until Congress has had a full opportunity to review permanent legislation. To the extent that the trial court holdings force Congress itself to enact emergency legislation to bridge the legislative gap it is also inconsistent with Congress's declared intent that the Home Rule Act "to the greatest extent possible, consistent with the constitutional mandate, relieve Congress of the burden of legislating upon essentially local District matters." * * *
Congress should not be assumed to have legislated irrationally. It cannot have authorized the Council to enact legislation to cope with emergencies, and yet have so structured the congressional review period that the legislative solution for the emergency will necessarily inevitably expire before the legislative process for permanent legislation ends. Interpretations of the Home Rule Act that have such bizarre consequences serve no conceivable legislative purpose and are not compelled by the plain language of the Home Rule act or by District of Columbia v. Washington Home Ownership Council, Inc.
Neither the Home Rule Act nor the majority opinion in Washington Home can reasonably be interpreted to prohibit the Council from enacting an emergency act in order to preserve the statutory status quo while Congress reviews District criminal legislation timely submitted to it. So long as criminal legislation is pending review in Congress at the time a ninety-day emergency act expires, the Home Rule Act should be read as permitting a second emergency act to bridge the procedural gap until the congressional review period ends or until Congress disapproves the proposed regular statute. footnotes omitted
580 A.2d 590
We agree; a contrary result would make it impossible as a practical matter for genuine emergencies to be effectively resolved on an emergency basis even where, as here, both Congress and the Council favor the substance of the proposed emergency enactment and a lapse would assure incongruous results.

Appellant also maintains that the one day gap between the expiration of the First Emergency Act and the effective date of the Second Emergency Act did not cause the prosecutions in Appeal No. 90-167 to lapse because, under D.C.Code § 49-301 (1987 Repl.) the federal savings statute saves the prosecutions. Again, we agree. Accordingly, the judgments are reversed and the cases are remanded for reinstatement of the charges.


Congress has authorized the Council of the District of Columbia to enact emergency legislation which the Council, by rule, has defined as appropriate in a "situation that adversely affects the health, safety, welfare or economic well-being of a person, for which adherence to the ordinary legislation process would result in delay that would adversely affect those the legislation is intended to protect." D.C.Code § 1-227(c) (1989 Cum.Supp.); Sec. 412(b) of the Rules of Organization and Procedure for the Council of the District of Columbia Council Period VIII (D.C. Council Rules), 36 D.C.R. 294, reprinted as a note to D.C. Code § 1-227. This expedited process frees an emergency act from the burden of two readings by the Council at least thirteen days apart, referral of the bill to a committee, and congressional review, which are required of all permanent legislation. D.C.Code § 1-229.4 Instead, an emergency act can be passed after one reading, by a vote of two-thirds of the members of the Council, and will become effective immediately upon the signature of the Mayor. Sec. 412 of the D.C. Council Rules. Once in effect, an emergency act is effective for ninety days. D.C.Code § 1-229(a).

In response to our decision in Washington Home the Council adopted a third process for approving legislation. Upon a finding by the Council of the existence of an emergency, and the enactment of an emergency bill, the Council may, under this rule-created process, approve on first reading a substantially identical temporary bill in the same legislative session. D.C.Code § 1-227, Sec. 413 of the D.C. Council Rules.5 Such temporary legislation, like permanent legislation, requires two readings by the Council, but does not require referral to a committee. Like emergency legislation, however, it requires approval by two-thirds of the members of the Council. Id. After two readings and approval by the Mayor, the temporary legislation is transmitted to Congress for review.6 Id.

580 A.2d 591
The mandatory period for congressional review is the same as that required of permanent legislation; for legislation amending Titles 22, 23 and 24 of the District of Columbia Code, layover in Congress for sixty legislative days, for all other bills, layover in Congress for thirty legislative days, calculated from the time the legislation is transmitted to Congress. D.C.Code § 1-233(c). Once the period of congressional review ends without congressional disapproval, a temporary bill is effective for 225 days. D.C.Code § 1-227, Sec. 413 of the D.C. Council Rules

Prior to Washington Home, it was the Council's practice from time to time, to pass a continuing series of emergency acts, without enacting permanent legislation which requires two readings followed by congressional review. 415 A.2d at 1358, 1366. See note 10, infra. Thus, in Washington Home the Council had found that the District of Columbia faced a serious shortage of rental housing due to the widespread conversion of rental units to condominium and cooperative properties. 415 A.2d at 1353. In response to this situation the Council passed three successive emergency acts imposing moratoria on rental property conversion. Id. at 1350. The court held that the continuing enactment of consecutive, substantially identical emergency acts in response to the same emergency...

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