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03/30/90 J. GEORGE FRAIN v. DISTRICT COLUMBIA

March 30, 1990

J. GEORGE FRAIN, ET AL., APPELLANTS
v.
DISTRICT OF COLUMBIA, ET AL., APPELLEES



Appeal from the Superior Court of the District of Columbia; Hon. Richard S. Salzman, Trial Judge

Before Rogers, Chief Judge, and Terry and Schwelb, Associate Judges.

The opinion of the court was delivered by: Schwelb

SCHWELB, Associate Judge: Appellants are residents of the Adams-Morgan area of Northwest Washington. In 1986, claiming that existing parking facilities in their neighborhood were inadequate as a result of various alleged acts and omissions by the executive and legislative branches of the District of Columbia government, they brought this action in the Superior Court against the District and certain of its officials seeking declaratory and injunctive relief. They requested, among other things, that the Mayor be ordered to implement the Neighborhood Off-Street Parking Act, D.C. Code § § 40-803 et seq. (1986 Repl.), which authorizes but does not require the Mayor to acquire land for off-street parking; that the District be compelled to expend for parking purposes at least 50% of revenues from "all parking matters"; that the court declare unconstitutional the Stable and Reliable Source of Revenue for WMATA Act, D.C. Code § 1-2466 (1987), upon the ground, among others, that users of automobiles are denied equal protection by the use of parking revenues for the Metro system; and that District officials be precluded from "booting" auto mobiles for non-payment of parking tickets without prior notice to the owner. *fn1 After some preliminary skirmishes, the trial court granted the defendants' motion for summary judgment, concluding that plaintiffs either lacked standing or were "wrong as a matter of law."

The function of the courts is to adjudicate rather than to legislate or to exercise executive responsibilities. We are impressed by the District's argument that most or all of appellants' complaints would be properly addressed to the legislative and executive branches of our government rather than to the judiciary. See, e.g., Rizzo v. Goode, 423 U.S. 362, 46 L. Ed. 2d 561, 96 S. Ct. 598 (1976); Iselin v. United States, 270 U.S. 245, 251, 70 L. Ed. 566, 46 S. Ct. 248 (1926) (Brandeis, J.) ("to supply omissions [in a statute] transcends the judicial function"). Appellants' standing to assert their claims is likewise questionable. See, e.g., City of Los Angeles v. Lyons, 461 U.S. 95, 75 L. Ed. 2d 675, 103 S. Ct. 1660 (1983). We need not and indeed cannot decide the merits of appellants' contentions, however, because we are satisfied that this court lacks jurisdiction to entertain this appeal.

The notice of appeal in this case was filed almost five months after the trial court entered judgment against appellants, and no effective action was taken to toll the running of the 30-day period prescribed by D.C. App. R. 4(a)(1). We are unable to agree with appellants that they were lulled into inaction by any statement or act of the trial court, or that there is any basis here for invoking the "unique circumstances" exception articulated in Thompson v. Immigration & Naturalization Service, 375 U.S. 384, 11 L. Ed. 2d 404, 84 S. Ct. 397 (1964) (per curiam), and other authorities discussed below. Accordingly, this appeal must be dismissed. *fn2

I

On January 17, 1987, Judge Richard S. Salzman signed an order granting summary judgment in favor of the District and its officials. Three days later, that order was entered on the docket. On January 29, 1987, asserting that she was forced to do so by the press of other litigation, counsel for appellants filed a motion for an extension of time until March 10, 1987 to submit what she characterized only as a "motion for reconsideration." The government filed no opposition to the motion for an extension. On February 18, 1987, twenty-nine days after the docketing of the judgment in the District's favor, Judge Shellie F. Bowers entered an order granting the motion for an extension as unopposed. This order was mailed to counsel on February 19, 1987, thirty days after the entry of summary judgment.

On March 9, 1987, again citing the burden of other litigation matters, appellants' attorney filed a motion to extend until April 6, 1987 the time for filing a motion for reconsideration. The trial Judge did not act on the second motion. On April 6, 1987, appellants filed the anticipated motion for reconsideration of the order granting summary judgment. They contended that they had standing to bring the action, that the Cokinos decision *fn3 cited by the Judge was distinguishable, and that the judgment was unclear "in that it is not possible to determine which holdings apply to the various claims raised by plaintiffs."

On May 14, 1987, Judge Salzman issued an order which stated in pertinent part that

the motion to reconsider is granted and on reconsideration, the award of summary judgment to defendants is granted for the reasons stated in the initial ruling.

A notice of appeal from the May 14, 1987 order was filed on June 11, 1987.

II

Our Rule 4(a)(1) provides that a notice of appeal in a civil case shall be filed within thirty days after the entry of judgment in the Superior Court. This time limit is mandatory and jurisdictional. In re C.I.T., 369 A.2d 171, 172 (D.C. 1977); Valentine v. Real Estate Comm'y, 163 A.2d 554, 556 (D.C. 1960); see also Browder v. Director, Illinois Dep't of Corrections, 434 U.S. 257, 264, 54 L. Ed. 2d 521, 98 S. Ct. 556 (1978). The notice of appeal in this case, as we have noted, was not filed within thirty days of the judgment.

Our Rule 4(a)(2) provides, however, that the running of the time for filing a notice of appeal is terminated as to all parties by the timely ...


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