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January 2001 Council of the District of Columbia Vol. 7, No. 1
|| End of Financial Authority || New Solid Waste Storage Requirements || Counting Days for Council Acts || D.C.
|| Litigation||Drafting Tips || Council Period XIV Rule Changes || Attorney Assignments || Editor ||
INSIDE THIS ISSUE
District's Fourth Consecutive Balanced Budget Signals Beginning of End for the Financial Authority
COUNCIL CONTRACTS TO PUBLISH THE D.C. CODE
Dedicated Tax for the Washington Convention Center
Jenkins, et al. v. Washington Convention Center, et al.
OGC ATTORNEY COMMITTEE ASSIGNMENTS
Fourth Consecutive Balanced Budget Signals Beginning
of End for the Financial Authority
The issuance of the Comprehensive Annual Financial Report ("CAFR") on January 29, 2001, should trigger the "wind down" period for the District of Columbia Financial Responsibility and Management Assistance Authority ("Financial Authority") and set the stage for the Financial Authority to suspend all activities on September 30, 2001. The CAFR establishes the existence of a fourth consecutive year of a balanced budget for the District, which is the final condition the District has to meet to end the current control period.
In the September 2000 and October 1999 issues of Legalese, we outlined the actions necessary to end a control period. As of September 2000, all but one of the conditions had been met to end the current control period -- the certification of the existence of four consecutive years of a balanced budget for the District. The Financial Authority is expected to certify that the District met this final condition at its meeting on February 7, 2001.
If the Financial Authority certifies that the District achieved its fourth consecutive balanced budget as of September 30, 2000, the end of the 2000 fiscal year, the control period would end and the current fiscal year would likely be the final control year. A control year is "any fiscal year for which a financial plan and budget approved by the [Financial] Authority . . . is in effect." The Financial Authority cannot suspend its activities during a control year. See sections 107(a)(2) and 305(4) of the District of Columbia Financial Responsibility and Management Assistance Act of 1995 ("FRMAA") (D.C. Code §§ 47-391.7(a)(2) and 47-393(4)). Consequently, we will continue to remain in a control year until the end of the current fiscal year -- September 30, 2001.
Because certain activities of the Financial Authority are tied to the "control year," and not to the "control period," the Financial Authority will retain many of its powers until the control year ends on September 30, 2001. For example, the Council will continue to be required to submit its acts to the Financial Authority for review for consistency with the District financial plan and budget (§ 47-392.3(a)); the Financial Authority will continue to review certain contracts "proposed to be entered into by the District government during a control year" (§ 47-392.3(b)); and the Financial Authority will continue to analyze all reprogramming requests for "any amounts provided in a budget for a fiscal year which is a control year" (§ 47-392.3(c)). In addition, during the remainder of this fiscal year, the Financial Authority may make recommendations to the Council pursuant to section 207 of the FRMAA (§ 47-392.7). While this is not an exhaustive list of the duties and responsibilities that the Financial Authority retains during the remainder of this fiscal year, it should address items of interest to most staff and Members of the Council.
The end of the control period means the Financial Authority will no longer be required to approve the District's financial plan and budget, although it will retain the authority to review and analyze it, and make recommendations concerning it. That means the District will return to the process for reviewing the District's annual budget that existed prior to the creation of the Financial Authority in 1995, beginning with the fiscal year 2002 budget. That statutory budget review process, contained in D.C. Code § 47-304, gives the Council "50 calendar days after receipt of the budget proposal from the Mayor, and after public hearing," to adopt a budget request act for the District's next fiscal year for submission to the Mayor and Congress. The time periods for review by the Mayor and, if necessary, any override of a mayoral veto also are restored to the pre-1995 time periods provided in § 47-304: 10 days for the Mayor and 30 days for the Council to consider whether to override a veto. During control periods, these time periods had been reduced by 50% for the Mayor and 80% for the Council.
Section 221(a) of the FRMAA (D.C. Code § 47-392.21) provides some guidance as to the role the Financial Authority will play in the District's financial planning from the time the control period ends until the suspension of the Financial Authority's activities. It states:
(a) In general. During the period beginning upon the termination of a control period pursuant to § 47-392.9(b) and ending with the suspension of its activities pursuant to § 47-391.7(a), the Authority shall conduct the following activities:
(1) The Authority shall review the budgets of the District government adopted by the Council under § 47-304 for each fiscal year occurring during such period. (2) At such time prior to the enactment of such budget by Congress as the Authority considers appropriate, the Authority shall prepare a report analyzing the budget and submit the report to the Mayor, the Council, the President, and Congress.
(3) The Authority shall monitor the financial status of the District government and shall submit reports to the Mayor, the Council, the President, and Congress if the Authority determines that a risk exists that a control period may be initiated pursuant to § 47-392.9(a).
(4) The Authority shall carry out activities under subpart C of this subchapter with respect to bonds, notes, or other obligations of the Authority outstanding during such period. [Note: No such bonds exist].
(b) Requiring Mayor to submit budgets to Authority. With respect to the budget for each fiscal year occurring during the period described in subsection (a) of this section, at the time the Mayor submits the budget of the District government adopted by the Council to the President under § 47-304, the Mayor shall submit such budget to the Authority.
D.C. Code § 47-392.21 (Emphasis added). [CBH/JH]
NEW REQUIREMENTS FOR SOLID WASTESTORAGE
The Rodent Control Act of 2000 (title IX of the
Fiscal Year 2002 Budget Support Act of 2000 and D.C. Law 13-172) became effective October
19, 2000. This measure establishes within the Department of Health a Bureau of Rodent
Control, whose purpose is to eliminate the District's rodent population. To help the
Bureau with this mission, the Rodent Control Act contains new solid waste storage
DAYS FOR CONGRESSIONAL REVIEW
OF COUNCIL ACTS
The legal basis for calculating days of Congressional review of Council acts is found in section 602(c)(1) of the District of Columbia Home Rule Act. Section 602(c)(1) provides that acts, other than acts which amend Titles 22, 23, and 24 of the D.C. Code, receive 30 Congressional legislative days of review. The review period excludes weekends, holidays and days when neither House is in session because of an adjournment sine die, a recess of more than 3 days, or an adjournment of more than 3 days. Acts codified in Titles 22, 23, and 24 of the D.C. Code receive 60 Congressional legislative days of review.
Every even-numbered year, Congress adjourns sine die. This generally occurs in October. An adjournment sine die ends the Congress. At that time, acts that have not received the required full 30 or 60 days of review must be resubmitted when the new Congress convenes and the count will start anew. For example, if a 30-day review measure has achieved 29 days of review on the day that Congress adjourns sine die, when the new Congress convenes the following year (in January of each odd-numbered year), it is resubmitted and the count begins from day one.
Recently, questions have been raised as to the legal authority for the retransmittal to the 107th Congress of legislation that had not concluded its required days of Congressional review under the 106th Congress. The Home Rule Act requires that the Chairman of the Council transmit permanent legislation to "the Speaker of the House of Representatives and the President of the Senate." The House of Representatives Rules require that at the close of each Congress all records be transmitted to the National Archives for preservation. Therefore, acts transmitted to the previous Congress could not be presented to the Speaker of the new Congress.
In addition, two Corporation Counsel opinions from the early days of Home Rule concluded that "§602(c)(1) of the Self-government [Home Rule] Act contemplates that the 30-day period be accorded to the Congress in session at the time of transmittal of the act by the Chairman of the Council." Opinions of the Corporation Counsel, Vol. III, p. 539. The Corporation Counsel relies on the legislative history of section 602(c)(1) of the Home Rule Act to support its conclusion. The legislative history states that: "The bill further ensures Congressional supervision of the District by providing that an act of the Council on any subject . . . . after approval by the Mayor shall go into effect only if neither House of Representatives nor the Senate passes a resolution disapproving such act during the next 30 days of continuous session." Sen. Rep. 93-219, 93d Cong., 1st Sess. 6 (1973) (emphasis added). Consequently, acts of the Council which have been transmitted to the Congress for review must be retransmitted to the new Congress if they have not concluded the mandatory period of Congressional review prior to an adjournment sine die. [CBH]
COUNCIL CONTRACTS TO PUBLISH THE DISTRICT OF COLUMBIA CODE
The Council has reached an agreement with West Group for the publication of the 2001 Edition of the official District of Columbia Code. A new edition of the Code is expected to be published by West Group in the spring, perhaps as early as April.
The Council will completely recodify the text of the 1981 Edition of the Code under the direction of the Office of the General Counsel. The newly recodified 2001 Edition of the Code will be available in print and CD-ROM formats. The official Code has not been published since 1999.
Until publication of the new Code, drafters of legislation should continue to confirm that they are utilizing the latest version of a law by checking not only the particular bound Code volume and its most recent supplement, but also the Codification Chart maintained by the Office of the General Counsel. [BFB]
The Office of the General Counsel periodically
provides drafting tips in Legalese. The following tips cover some of the
fundamentals of drafting legislation:
(a) Introductory language - all bills and resolutions should include, prior to the long title, standard introductory language. For bills introduced by a Member of the Council, the standard introductory language is: "Councilmember ______________(first and last names), introduced the following bill, which was referred to the Committee on _____________." The standard introductory language for legislation drafted by the Mayor is: "Chairman Linda W. Cropp, at the request of the Mayor, introduced the following bill, which was referred to the Committee on __________."
(b) Line Numbering - Introductions and committee prints should contain line numbers, running the right side of the page. [Engrossed bill also contain line numbers, but only the OGC engrosses legislation]. Line numbers can be placed on documents as follows:
(1) In Word Perfect click Layout, Line, Numbering; mark a check in the "Turn Line Numbering on" box; remove the check from the "count blank lines" box (we do not need to count blank lines); set the "position of numbers" box, which is generally set at "0.600," to "7.80." Once you have performed all of these functions, press the "ok" key.
(2) In Word, at the beginning of the document, click on "File"; go to "Page Setup", click on "Layout"; click on line numbers, put a check mark in the "add line numbering" box, click "ok" and "ok". In Word every line is counted, including blank lines. If anyone knows how to delete the line numbers on blank lines, we welcome your comment.
(c) Definitions - The standard lead-in language for definitions that will be codified in an unenacted title of the D.C. Code is: "For the purposes of this act, the term:" The lead-in language for definitions that will be codified in an enacted title is: "For the purposes of this chapter, the term:" Defined terms should be in alphabetical order.
(d) Enacted titles - there are 13 1/2 enacted titles of the D.C. Code -- Titles 11-21, 23, and 28, and those portions of Title 47 which are not part of the Charter. Title 25 will become an enacted title soon. That will not occur until Bill 13-449 concludes its 30-day period of Congressional review. Remember, drafting rules depend upon whether the legislation will be codified in an enacted or an unenacted title of the D.C. Code.
(e) References to "chapter" - this word should never be used when referring to a law contained in an unenacted title of the D.C. Code.
(f) References to "of this act" - this phrase should never be used when referring to another section of the same act. It is sufficient to say "section 5". Never say: "section 5 of this act."
(g) Capitalization of "act" - this word should never be capitalized when referring to an act of the Council except when used in the short title of legislation. D.C. Code § 1-232(4).
(h) Headings - only the first word of a heading is to be capitalized, unless the other word is a proper noun. Headings are reserved for the names of sections, but are not used in subsections, paragraphs, subparagraphs, and any other sub-unit of numbering. A heading should end with a period. Example: "Sec. 7. Wedding gifts."
(i) Home Rule Act - the 1997 Revitalization Act officially changed the name of the "District of Columbia Self-Government and Governmental Reorganization Act" to the "District of Columbia Home Rule Act." Remember to use the correct title in the fiscal impact statement and effective date sections of a bill.
(j) Double-spacing of legislation - always double-space legislation, beginning with the enacting clause. Example:
"BE IT ENACTED BY THE COUNCIL OF THE DISTRICT OF COLUMBIA, That this act may be cited as the "Wedding Gift Act of 2001".
Sec. 2. Wedding gift exchange etiquette.
(k) Proposed Resolutions - The caption for all proposed resolutions should state:
"A Proposed Resolution" not "A Resolution". The proposed resolution caption is changed to "A Resolution" caption during the enrollment process by the Office of the General Counsel.
(l) Citations within bills - there are four different scenarios for citing to organic acts or titles of the D.C. Code. The first two examples listed below are the ones which are usually encountered, and are fairly well known. The simplest rule to remember is that whenever you are amending an enacted title, the phrase "D.C. Code" is not used.
(1) Citing to an unenacted title within an unenacted title. When citing to an unenacted title within an unenacted title, the organic act should be cited. Example: An applicant shall comply with the requirements of section 2(a) of the Outstanding Employee Act of 2001, effective January 1, 2001 (D.C. Law 14-00; D.C. Code § 1-101(a)).
(2) Citing to an enacted title within an enacted title. When citing to an enacted title within an enacted title, the D.C. Code should be cited directly without reference to the phrase "D.C. Code". Example: An applicant shall comply with the requirements of § 1-101(a)).
(3) Citing to an enacted title within an unenacted title. When citing to an enacted title within an unenacted title, the D.C. Code should be cited directly, with a reference to the phrase "D.C. Code". Example: An applicant shall comply with the requirements of D.C. Code § 1-101(a)).
(4) Citing to an unenacted title within an enacted title. When citing to an unenacted title within an enacted title, the D.C. Code should be cited directly without reference to the phrase "D.C. Code". Example: An applicant shall comply with the requirements of § 1-101(a)).
(m) Enacting clause for resolution - The standard enacting clause language for a resolution is: "RESOLVED, BY THE COUNCIL OF THE DISTRICT OF COLUMBIA, That . . ." Note that there is a comma after the word "RESOLVED" and that the "T" in the word "That" is capitalized.
(n) Use of quotation marks for references to legislation - Quotation marks should be used for references to legislation only in short titles. Quotation marks should not be used when referring to legislation in any other context. Right: "The Council of the District of Columbia determines that the circumstances enumerated in section 2 constitute emergency circumstances making it necessary that the Drafting Tips Congressional Review Emergency Act of 2001 be adopted after a single reading." Wrong: "The Council of the District of Columbia determines that the circumstances enumerated in section 2 constitute emergency circumstances making it necessary that the "Drafting Tips Congressional Review Emergency Act of 2001" be adopted after a single reading." [CBH/BKF]
Legislative Drafting Training Session
The Office of the General Counsel will conduct a two-part legislative drafting training session for the Office of the Corporation Counsel on February 16 and February 23, 2001, from 9:30 a.m. to 12:30 p.m., in Room 1030 South. All persons from the Council are invited to attend. Please contact Karen Westbrook of the Office of the General Counsel (724-8026) no later than February 9, 2001 to let her know if you wish to attend. [CBH]
DEDICATED TAX FOR THE WASHINGTON CONVENTION CENTER LITIGATION
The United States Court of Appeals for the District of Columbia on January 16, 2001, upheld the dismissal of an action challenging the sales, use, and occupancy taxes for the financing of the new Washington Convention Center. In Jenkins, et. al. v. Washington Convention Center, et. al., the Court of Appeals held there was no subject matter jurisdiction for a federal court because Congress granted exclusive jurisdiction over challenges to District tax assessments to local District of Columbia courts.
Although it reached the same result, the holding of the Court of Appeals differs from that of the United States District Court for the District of Columbia, which held on August 12, 1999, that it lacked jurisdiction because the Federal Tax Injunction Act bars bringing such actions in federal court when, as in the District, there is a remedy available in local courts. Given its holding that Congress granted exclusive jurisdiction over challenges to District tax assessments to the local District of Columbia courts when it reformed the court system for the District of Columbia in 1970, the Court of Appeals found it unnecessary to decide the applicability of the Federal Tax Injunction Act to this case.
The District of Columbia Court Reform and Criminal Procedure Act of 1970, enacted by Congress in 1970 under its constitutional authority, established a state court system and transferred jurisdiction over District of Columbia matters from the federal courts to the new local District of Columbia courts. Prior to 1970, the federal district court for the District of Columbia functioned as both a federal district court and a local trial court of general jurisdiction. The Court of Appeals noted that, in transferring jurisdiction to the local courts in 1970, "Congress unambiguously intended to vest in the District of Columbia courts exclusive jurisdiction over all challenges to District of Columbia taxes including those involving federal statutory or constitutional claims in lieu of (rather than concurrently with) jurisdiction in the federal courts . . . Congress expressly repealed its earlier enactment vesting concurrent jurisdiction over matters relating to District of Columbia taxes in the United States District Court for the District of Columbia."
As recounted in the September 2000 issue of Legalese, the Council authorized the use of taxes to finance the new Washington Convention Center in 1994. The initial legislation provided that the taxes would expire in two years if the Board of Directors for the Washington Convention Center Authority did not submit final financial requirements and a feasibility analysis to the Mayor and the Council. The Council subsequently passed emergency legislation delaying the deadline and legislation repealing the expiration of the taxing authority.
The Plaintiffs, consisting of numerous individuals and a business, filed a class-action lawsuit against the District and the Authority, challenging the emergency legislation and the effective date of the repeal, and seeking return of the taxes paid. They alleged that the collection of the taxes constituted a "conversion" (i.e., an unlawful appropriation of property) because there was no legislative authority to collect the taxes under District law. They also alleged that, under federal law, the taxation without proper legislative authority violated the Due Process Clause and constituted a taking (i.e., the exercise of eminent domain) without compensation under the Fifth Amendment.
In granting the Defendants' motion to dismiss, the District Court held that the Federal Tax Injunction Act, a codification of common law principles, barred it from hearing the matter. In order to insulate state tax administration from unwarranted federal intervention, the statute provides that "the district courts shall not enjoin, suspend, or restrain the assessment, levy or collection of any tax under State law where a plain, speedy, and efficient remedy may be had in the courts of such State." For the purposes of this law, the District Court held that the District would be considered to be a "State" and that its administrative procedure for challenging the collection of a tax constituted an adequate remedy for taxpayers. The court also found that the District of Columbia Tax Injunction Act, the local analogue passed by Congress prohibiting lawsuits prior to the exhaustion of local administrative remedies, bolstered its conclusion that the suit is barred.
On appeal, the Plaintiffs had argued that (1) the District is not a "State" for purposes of the Federal Tax Injunction Act; (2) the Federal Tax Injunction Act does not preclude claims which seek only monetary damages and do not call into question the current assessment, levy or collection of any tax; and (3) while their claims in this case did not require the exhaustion of administrative remedies, the nature of the claims (i.e., countless daily transactions by the class involving small amounts of money) made exhaustion impracticable. [DSK]
Council Period XIV Rule Changes
The following are summaries of the changes in the Council rules for Council Period XIV:
OFFICE OF THE GENERAL COUNSEL
In addition to the above, Ben Bryant serves as the Council Codification Counsel and Brian K. Flowers serves as the Council Legislative Counsel. Inquiries from Councilmember Adrian M. Fenty will be referred to the General Counsel, Charlotte Brookins-Hudson. Benjamin Bryant will advise on contracts.