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October 20, 1992


Appeal from the Superior Court of the District of Columbia; (Hon. Colleen Kollar-Kotelly, Trial Judge)

Before Terry, Steadman and Wagner, Associate Judges.

The opinion of the court was delivered by: Steadman

STEADMAN, Associate Judge:

Section 412 of Title IV (the "District Charter") of the District of Columbia Self-Government and Governmental Reorganization Act, as amended, *fn1 grants to the Council of the District of Columbia (the "Council") limited power through the use of resolutions to approve or disapprove certain proposed actions of the Mayor and other District governmental entities. Specifically, as pertinent to the matter now before us, section 412, as amended and codified in D.C. Code § 1-229 (1992), *fn2 provides:

(a) The Council, to discharge the powers and duties imposed herein, shall pass acts and adopt resolutions. . . . Resolutions shall be used . . . (2) to approve or disapprove proposed actions of a kind historically or traditionally transmitted by the Mayor . . . to the Council pursuant to an act.

In late 1990, the Council added a new provision to the Procurement Practices Act of 1985, which was to become codified as D.C. Code § 1-1181.5a. As subsequently amended by emergency legislation, *fn3 that section specified that "no contract for goods or services worth over $1,000,000 may be awarded until after the Council has approved the proposed contract award" as provided therein. *fn4 Prior to award, the Mayor was to submit the proposed contract to the Council. Any three members of the Council might file an objection to a proposed contract, after which the Council could vote to approve or disapprove the contract by resolution. If no objection was made to a contract within seven days, or if an objection was made and no resolution of disapproval adopted within twenty-one days, the contract was automatically deemed to be approved.

In litigation between appellant John A. Wilson, Chairman of the Council (the "Chairman"), and appellee Sharon Pratt Kelly, the Mayor of the District of Columbia (the "Mayor"), *fn5 the trial court ruled that the provisions of section 1-1181.5a exceeded the Council's resolution authority under section 412(a) of the Charter, D.C. Code § 1-229 (1992). We agree with this ruling of the trial court and accordingly affirm.


We begin with recognition of the fact that the government of the District of Columbia is the creation of Congress, pursuant to the U.S. Constitution. *fn6 In structuring that government, Congress is not bound by the separation of powers limitations that control its powers at the national level. See, e.g., Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 76, 102 S.Ct. 2858, 2874,73 L.Ed.2d 598 (1982); Palmore v. United States, 411 U.S. 389, 397-98, 93 S.Ct. 1670, 1676-77,36 L.Ed.2d 342 (1973); National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 590-92,69 S.Ct. 1173, 1176-78,93 L.Ed. 1556 (1949). Nonetheless, in the District Charter, Congress chose to create, as a general proposition, the familiar tripartite structure of government for the District. By specific language, "the legislative power granted to the District by this Act is vested in and shall be exercised by the Council in accordance with this Act," D.C. Code § 1-227 (1992); "the executive power of the District shall be vested in the Mayor," D.C. Code § 1-242 (1992); and "the judicial power of the District is vested in the District of Columbia Court of Appeals and the superior Court of the District of Columbia." D.C. Code tit. 11 app. § 431(a) (1989). Indeed, by its own statutory enactment, the Council has explicitly declared that it "recognizes the principle of separation of powers in the structure of the District of Columbia government." D.C. Code § 1-227.1(b) (1992).

While always giving due recognition to differences between a national constitution and the governance of a single urban component, it is reasonable to infer from this tripartite structure and the vesting of the respective "power" in each branch that the same general principles should govern the exercise of such power in the District Charter as are applicable to the three branches of government at the federal level. *fn7 Congress could reasonably intend that absent contrary provision drawn either expressly or by implication from the Self-Government Act or other statutes, its "legislative" power as delegated to the Council would reflect its "legislative" power vis-a-vis the other branches of government at the national level. *fn8

In Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983), the Supreme Court struck down a federal statutory provision for congressional veto of executive decisions as violative of the constitutional separation of powers. It was in response to the understandable concern created by this decision as to existing practices in the District that the Congress in 1984 amended section 412(a) of the District Charter by adding subsection (2) to authorize the Council to use resolutions "to approve or disapprove actions of a kind historically or traditionally transmitted by the Mayor . . . to the Council pursuant to an act." The heart of this appeal is the question whether individual procurement contracting decisions of the executive branch may be considered "actions of a kind historically or traditionally transmitted by the Mayor . . . to the Council pursuant to an act." *fn9


In enacting the 1984 amendment, Congress undertook to authorize the Council in certain circumstances to do by resolution what the Congress itself could not do in its capacity as a national legislature. Cf. Gary v. United States, 499 A.2d 815, 818-821 (D.C. 1985) (en banc), cert. denied, 475 U.S. 1086, 106 S.Ct. 1470, 89 L.Ed.2d 725 and 477 U.S. 906, 106 S.Ct. 3279, 91 L.Ed.2d 568 (1986). The plain connotation of language focused on actions of a kind "historically or traditionally" followed is a concern with maintenance of existing practices and preservation of the mechanisms of Council power in relation to the executive branch of the District government that existed pre-Chadha.

Likewise, the legislative history of the amendment indicates that the primary intent in its enactment was to preserve the general status quo in District governance. As David A. Clarke, then Council chairman and one of the chief participants, along with then Mayor Marion Barry, Jr., in consideration of the amendment, explained, "the purpose and effect of [subsection 412 (a)(2)] is to clarify the effect of Chadha upon the operation of the Home Rule Act by maintaining the current procedures, and . . . there is no purpose to further expand the role of the Council." Home Rule Act Amendment: Hearing on S. 1858 Before the Subcomm. on Governmental Efficiency and the District of Columbia of the Senate Commn. on Governmental Affairs, 98th Cong., 1st Sess. 22-23 (1983). *fn10 Through its explicit imprimatur on the status quo, Congress sought to preempt any Chadha-based challenges to the District's existing practices of governance.


Appellant nonetheless urges an expansive reading of the provision, stressing the phrase "of a kind" modifying "actions." Legislative history supplies a gloss to that phrase also. Mayor Barry and Chairman Clarke submitted to Congress a joint letter supplementing the testimony and explicating the language of the provision, which apparently reflected a compromise between the Mayor and the Council. In relevant part, the letter stated:

The language "of a kind historically or traditionally" is designed to reference a conception of the current uses of Council approval or disapproval by resolution as exemplary of the kinds of approval or disapproval to be specifically permitted by the Charter. The language would include within the ambit of the provision those actions which are now approved or disapproved by Council resolution but is not meant to cover only those specific actions. We attached a list of current provisions of law which involve approval or disapproval by resolution as exemplary of the kinds of review contemplated by the compromise language.

Id. 98th Cong., 2d. Sess., pt. 2, at 9 (1984). Appended to the letter was a list of 32 exemplary statutes containing Council review provisions. *fn11 The trial court was thus quite correct to conclude that the appropriate test for any act purporting to authorize the Council to use its resolution power to review the Mayor's decisions is whether that act is sufficiently analogous to the exemplars on the list of statutes with respect to "the kinds of review contemplated."

The 32 exemplary statutes are of considerable variety and extent. We do not attempt to develop overarching groupings or characteristics of these statutes for purposes of giving full definition to the phrase "of a kind." The guiding principle we draw from the above considerations is that when doubt exists, we must apply a restrained interpretation to the resolution approval power, given both its existence as an exception to the otherwise applicable separation of powers principles inherent in the District Charter and the intent that its exercise find roots in the historical and traditional status quo.

Thus, at the very least, a statute to be "of a kind" with one on the list should operate in a significantly analogous way in the same discrete field of District governance. The area of government contracting is indisputably such a discrete field, having its own comprehensive governing statute, to which the challenged section is an amendment. Yet an examination of the list of 32 statutes reveals only one which even arguably could be placed in that category, viz., D.C. Code § 1-1150.1 (1992). *fn12 That section requires that rules adopted by the Minority Business Opportunity Commission in the area of minority contracting lie before the Council for a 45-day period, within which the Council may approve or disapprove the rules. The promulgation of rules by agencies to implement statutes is of course a widely-recognized delegation of legislative power. Such rules, regulations, and guidelines are procedural in nature, fundamentally distinct from specific contract award decisions. Their review bears little resemblance to the oversight of individualized contract awards in the broad range of procurement challenged here.

Appellant argues that review of individualized contracts is simply one form of a broader control that may be asserted by the Council over executive actions that have substantial financial implications. Appellant notes that the exemplary statutes thus can be grouped into the areas of the employment of personnel, contracting for programs with the federal government, and borrowing money. *fn13 Each of these areas, however, is conceptually quite distinct from the traditional field of government procurement of goods and services from private bidders. If any decision of the executive branch having fiscal implications is found to be encompassed within the resolution power, the exception will swallow up the rule. We do not think that the phrase "of a kind" can be interpreted at such a high level of generality.

In sum, we can find no basis to hold that the Council has been empowered by section 412 of the District Charter to erect its own mechanism of individualized contract review by use of its resolution authority. Accordingly, the order of the trial court must be


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