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August 23, 1993


Appeal from the Superior Court of the District of Columbia; (Hon. Richard Levie, Trial Judge)

Before Steadman and Schwelb, Associate Judges, and Pryor, Senior Judge.

The opinion of the court was delivered by: Schwelb

SCHWELB, Associate Judge : Appellants, who include homeless residents of the District of Columbia as well as the National Coalition for the Homeless, appeal from a trial court order dated November 15, 1991. In that order, the trial Judge vacated, on the basis of the District of Columbia Council's clarifying amendment of local law, a previously entered preliminary injunction in which the Judge had required the Mayor and other officials of the District of Columbia, among other things, to cease housing homeless families with minor children in shelters and to provide them with apartment style units. Appellants contend that they continue to be entitled to the preliminary injunction pursuant to federal law. We affirm.


On February 12, 1990, appellants brought this action for declaratory and injunctive relief. They alleged that they and other homeless persons similarly situated were being "warehoused" in overcrowded hotel shelters, that they were often without cooking facilities, refrigerators, or separate sleeping quarters for adults and children, and that in some instances these conditions continued for periods of several years, to the severe detriment of their children's physical and mental well-being as well as their own. Appellants claimed that the District officials' conduct denied them rights protected by the District's Emergency Shelter Services for Families Reform Amendment Act (the Emergency Shelter Act), D.C. Code § 3-206.3 (1988), by the federal Social Security Act, 42 U.S.C. § 601 et seq., by federal civil rights legislation, 42 U.S.C. § 1983, and by the Due Process Clause of the Fifth Amendment.

On October 12, 1990, in a meticulously documented 73-page Memorandum Opinion and Order in which he detailed the circumstances in which many of our fellow-citizens live, *fn1 the trial Judge issued a preliminary injunction requiring the District officials, among other things, to establish apartment-style shelter housing units for homeless families. He ordered that these units be equipped with

(1) separate cooking facilities and other basic necessities to enable each family to prepare and consume meals; (2) bathroom facilities for the exclusive use of each family; (3) separate sleeping quarters for adults and children; and (4) access to immediate outdoor areas equipped with basic facilities for exercise and play for use by minor children residing in the emergency shelter family housing units.

The Judge further ordered the District officials to cease housing homeless families with minor children in hotel, motel or other similar shelters and to place them in facilities which satisfied the foregoing standards.

The Judge's decision was based, in substantial part, on the provisions of the Emergency Shelter Act. *fn2 That Act provides, among other things, that "beginning no later than 1 year from March 11, 1988, the Mayor shall establish and maintain . . . a sufficient number of emergency shelter family housing units for homeless families with minor children." D.C. Code § 3-206.3 (b)(1) (1991). Each such emergency shelter family housing unit is required to be "in substantial compliance with all rules, regulations and orders codified at Title 14 of the District of Columbia Municipal Regulations," (the Housing Regulations). Id., § 3-206.3 (b)(2). Moreover, "beginning 1 year from March 11, 1988, the Mayor shall not place a homeless family with minor children in a hotel, motel, or other similar shelter unless . . . unforeseen circumstances leave no acceptable alternative." Id. § 3-206.3(c). The Judge concluded that he had the authority to order mandatory injunctive relief because, in light of the consistent use in the Act of the word "shall," "the plaintiffs have stated a claim that they have a property interest in the family shelter units . . . [contemplated by the Act]." *fn3

While the litigation was pending, however, the Council of the District of Columbia adopted emergency and permanent legislation which effectively destroyed any basis in local law for the preliminary injunction issued by the trial Judge. On May 10, 1990, the Council's Committee on Human Services issued a Report to accompany Bill 8-156, the District of Columbia Emergency Overnight Shelter Amendment Act of 1990 (the 1990 Act). In its Report, the Committee noted the pendency of legal actions arising under the Emergency Shelter Act and the earlier Overnight Shelter Act of 1984. See, generally, Atchison v. District of Columbia, 585 A.2d 150 (D.C. 1991). The Committee expressed particular concern with regard to contempt proceedings in Atchison, a case in which the District had been required to deposit $1,663,500 into the registry of the Superior Court. The Committee concluded that "the District has been subject to several court decrees and orders wherein the Courts have embellished the requirements of [the Overnight Shelter Act]," and that in the absence of new legislation "inclusive of a legislative history reflecting legislative intent, the courts will continue to embellish and to expand [the Overnight Shelter Act] as well as [the Emergency Shelter Act].

To remedy these concerns, the 1990 legislation explicitly provided that "nothing in this act shall be construed to create an entitlement in any homeless person or family to overnight shelter." D.C. Code § 3-206.9 (a) (1991). The Committee was emphatic about its purpose:

The intent of this provision . . . is to state clearly the legislative intent that no person or family has any entitlement to the provision of emergency overnight shelter or support services by the District government. Any other construction or interpretation of the provisions of this section shall be violative of the legislative intent of the Council of the District of Columbia.

Moreover, in Resolution 8-234, which accompanied the 1990 Act and declared the existence of an emergency generated by the perceived judicial expansion of existing shelter legislation, the Council focused on the present litigation and its potential cost to the taxpayers. *fn4

On August 14, 1990, the District of Columbia Board of Elections and Ethics notified the President of the Senate and the Speaker of the House of Representatives that the Board had received a petition in support of the "Referendum to Reject the D.C. Emergency Overnight Shelter Amendment Act of 1990." In conformity with D.C. Code ยง 1-1320 (1991), the Board requested Congress not to undertake further review of the 1990 Act until after the referendum election. On November 6, 1990 the proposal that the 1990 Act be rejected was ...

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