US v. Alston
Decision Date | 13 August 1990 |
Docket Number | 90-168.,No. 90-167,90-167 |
Citation | 580 A.2d 587 |
Parties | UNITED STATES, Appellant, v. Charles S. ALSTON, Appellee. District of Columbia, Intervenor. |
Court | D.C. Court of Appeals |
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.
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 review.3
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:
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.6Id. 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 improperly bypassed the requirements of the Home Rule Act for...
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