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09/25/90 MARION BARRY v. NATE BUSH

September 25, 1990

MARION BARRY, JR., ET AL., APPELLANTS
v.
NATE BUSH, ET AL., APPELLEES. PARENTS UNITED FOR THE DISTRICT OF COLUMBIA SCHOOLS, GLENDA PARTEE AND LORRAINE WILSON, INTERVENORS-APPELLEES



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

Ferren, Steadman, and Schwelb, Associate Judges.

The opinion of the court was delivered by: Ferren

This case presents the question whether the Mayor has the authority unilaterally to reduce the Board of Education's 1990 fiscal year appropriation. We hold that he does not.

I. The Facts and Proceedings

The facts of this case are not in dispute. The District of Columbia is running out of money before the end of its 1990 fiscal year. In an attempt to prevent an even more severe revenue shortfall, the Mayor took several actions. Initially, he and the Council forwarded to Congress, on April 13, 1990, a supplemental budget request act asking for a reduction of the amount which the District was authorized to spend. *fn1 Congress approved. See (supra) note 1. That reduction included approximately 1% of the previously approved Board of Education's budget. *fn2 The reduction did not eliminate the accumulating short-fall. *fn3 On June 26, 1990, the Mayor attempted to cut more funds from the District's budget by proposing the "Fiscal Year 1990 Second Supplemental Budget and Rescissions of Authority Request Act of 1990," Bill 8-623. The Council defeated the Mayor's proposal, *fn4 and the bill was not sent to Congress.

As a final effort to prevent the District from exceeding its budget, the Mayor issued Order 90-103 *fn5 on July 19, 1990, mandating an overall reduction of an average of 2% from all District departments and agencies except the Metropolitan Police Department. *fn6 This Order is the subject of the current dispute. It commands the Board of Education to cut $10,861,000 from the supplemental appropriation for fiscal year 1990, see (supra) note 2, leaving a total Board budget of $486,285,000. *fn7

On July 26, 1990, the members of the Board filed a complaint against the Mayor and the District of Columbia and moved for a temporary restraining order and a preliminary injunction to prevent implementation of the $10,861,000 cut. The next day, Judge Shuker granted the requested temporary restraining order, ruling that the

Mayor lacked authority unilaterally to reduce the Board's budget and, further, that the Mayor's actions violated a prior, court-approved settlement agreement.

On August 1, 1990, the Corporation Counsel, acting on behalf of the Mayor and the District (hereinafter collectively called the District) filed a motion for a temporary restraining order in an effort to prevent the Board from obligating the disputed amount before the preliminary injunction hearing. The next day Judge Shuker denied the District's motion, noting that the Mayor, not the Board, was attempting to alter the status quo. On the same day, the District filed an emergency motion in this court requesting a stay of Judge Shuker's order of July 27, 1990. Before we ruled on the emergency motion, Judge Salzman held a hearing, on August 6, 1990, to consider the Board's motion for preliminary injunction. He combined that hearing with a hearing on the District's emergency motion and a trial on the merits. At that hearing, an organization known as Parents United for the District of Columbia Schools was allowed to intervene. *fn8 On August 10, 1990, the District filed with Judge Salzman another motion, requesting reconsideration of Judge Shuker's denial of the District's motion for a temporary restraining order.

Later that day, Judge Salzman issued his decision in favor of the Board, ruling that the Mayor's actions were "null and void." Judge Salzman based his decision on two grounds: (1) the Mayor lacked power unilaterally to reduce the Board's budget, and (2) in applying Order 90-103 to the Board, the Mayor violated the Settlement Stipulation signed five years after the trial court's decision in Evans v. Washington, 106 Daily Wash. L. Rptr. 1929 (D.C. Super. Ct. Sept. 7, 1978) (Belson, J.). *fn9

On August 16, 1990, Judge Salzman entered a permanent injunction ordering the Mayor not to reduce the Board's budget. That same day the District filed a docketing statement and two procedural motions, and, on August 17, 1990, the District filed the instant appeal. On August 27, 1990, a motions division of this court granted the District's request for a stay of Judge Salzman's order pending resolution of the District's appeal.

II. The Post-Evans Settlement Stipulation

We begin by noting that both the Board and the District agree that Order 90-103, as applied to the Board, clearly and unequivocally violates the unambiguous terms of the post-Evans Settlement Stipulation:

Defendants [the District] hereby stipulate that neither the Mayor nor his subordinates will unilaterally reduce -- whether by apportionment, reapportionment, allocation, encumbrance, prohibition, freezing, or change in accounting, budget, procurement, or financial procedures -- the authorized spending level or preclude the expenditure of monies duly appropriated by Congress to the Board of Education and to the District of Columbia Public Schools in any given fiscal year; provided, however, that the Board of Education recognizes the authority of the Mayor to submit a supplemental or deficiency budget, pursuant to Section 442(c) of the District of Columbia Self-Government and Government Reorganization Act (P.L. 93-168), to the Council of the ...


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