BY COURTS OULAHAN

INTRODUCTION

The proposed District of Columbia Constitution for the State of New Columbia was adopted May 29, 1982, by the Statehood Constitutional Convention. It is probably one of the most extensive and detailed State constitutions in the United States. Its Preamble and thirteen articles' contain over 250 separate sections and subsections and over 15,000 words. Almost every line of the proposed Constitution should be a matter of interest to Bench and Bar.

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The Convention President (The Washington Post, June 6, 1982) claims the Constitution "is already being hailed as the most progressive official state document produced in the history of this nation.' Hailed by whom? Progressive for what? The Bench and Bar-and history-will have to be the judge of the President's hyperbole. The proposed Legislative and Executive Articles follow reasonably enough the standard organization of other states. "Rights," "freedoms," tax provisions, and the civil and criminal judicial system are different matters altogether.

The proposed Constitution will be submitted to the D.C. voters for approval or rejection at the November 2, 1982 elections. If approved by a majority of those voting, the document must be submitted by the Mayor to Congress, where regular statutory procedures must be followed. The enabling act, including any changes Congress may require in the proposed Constitution, may be adopted by majority vote of each House. residential signature is required. If Congressional changes are required, another vote by D.C. citizens must be held. Statehood is formally effected by Presidential proclamation.

The following explains what the Constitution would do if it is adopted and effected in its present form.

THE LEGISLATIVE

BRANCH

Article II of the Constitution creates a unicameral legislature called the House of Delegates (Section 1).2 Forty members are elected from singlemember districts (Article II, Section 2), each of which "shall have a population which varies by no more than three percent from the average population of all districts" (Article XIV, Section 3).3 Whether or not the existing eight-ward structure of the city, divided into five equal electoral districts, will continue will depend upon the decision of an Apportionment Commission (Id., Sections 1 and 2).

Legislators serve for terms of four years (Article II, Section 5). One-half are elected in ensuing even-numbered years (Id., Section 6). A legislator must be at least 18 years of age, a citizen of the United States, a resident of the District of Columbia or State for at least three years, a resident of the legislative district for at least 18 months, and a registered voter. A Delegate may not move from his legislative district during his term of office (Id., Section 3). The Legislature is directed to adopt a Code of Ethics governing its members. Any member who has "personal or private interests ...in any proposed or pending bill shall disclose such fact to the presiding officer [of the House] and shall not vote on that bill" (Id., Section 21).

A law cannot take effect earlier than 90 days after enactment except for emergency laws and those which are exempt (Article II, Section 18). This period is to enable the voters to institute a referendum petition, which asks that a law be submitted in whole or in part to the voters (Article XIV, Sections 3(B) and (C)).5 The operation of the law is suspended upon the filing of an effective referendum petition (Id., Section 3(F)).

THE EXECUTIVE BRANCH

The Executive Branch is headed by both of whom must be elected on the a Governor and Lieutenant Governor, same ticket. They serve for terms of four years but are ineligible for reelection after two terms (Article III, Sections 1, 2, and 4(A) and (B)). The Governor and Lieutenant Governor must be at least 30 years of age, citizens of the United States, and residents of the District of Columbia or State for

at least five years (Id., Section 4(D))."

The powers of the Governor are generally those of any other state Chief Executive (Article III, Sections 5 and 6). The Governor may exercise a line-item veto power over appropriation bills and veto other bills (Article II, Sections 16-17).

Not more than twenty offices and agencies may be established within the Executive Branch (Article III, Section 7(A)). This does not include a department headed by an Attorney General, who “shall be the chief legal officer of the state and shall have responsibility for advising the Governor on legal questions, prosecuting offenders, and representing the state in all legal matters" (Id., Section 3). All gubernatorial appointments are subject to the advice and consent of the Legislature (Id., Sections 3, 8(A) and 10(A)).

THE JUDICIAL BRANCH

Although the courts and judges of the present judicial system in the District of Columbia are carried over under the proposed Constitution into a state "unified judicial system” (Article IV, Section 1), the provisions of the Judicial Article differ markedly from those of the District of Columbia Self-Government and Governmental Reorganization Act.

The new judiciary consists of a Supreme Court (formerly the D.C. Court of Appeals), a Superior Court, and "such inferior and appellate courts as may be established by law" (Article IV, Section 1). The latter provision was designed to permit the new state to establish an intermediate Court of Appeals, should circumstances and case load so require in the future, and other types of courts, such as a Court of Claims or local courts. Constitutional provisions relating to the judiciary may be changed only by amendment to the Constitution and may not be the subjects of initiatives or referenda (Article XV, Sections 2(E) and 3(D)).

A. THE SUPREME COURT

The Chief Judge and Associate Judges of the Court of Appeals become the Chief Justice and Associate Justices of the new Supreme Court (Article XVIII, Section 4(A)).9 The Chief Justice would be appointed by the Judicial Nomination Commission for a term of four years (Article IV, Section 2(B)). The Court is re

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quired to sit en banc and not by panel or division.10 In addition to appeals11 from a future intermediate Court of Appeals, the jurisdiction of the Supreme Court closely resembles that of the present D.C. Court of Appeals (Id., Section 2(A) (1)–(5)):

the approval of the entire Supreme Court, an "administrative director" (Id.). These provisions are not intended to prohibit the appointment of an administrative director to assist the Chief Judge of the Superior Court in carrying out his own administrative duties with respect to that court.

Rules governing court procedure and administration would become the responsibility of the Supreme Court (Article IV, Section 15). A budget for the judicial system is the responsibility

of the Chief Justice, who submits that budget to the Governor. The Governor transmits "the proposed budget to the House of Delegates without changing it, but may make recommendations with respect to it." (Id., Section 14).12

In this connection, certain revenues of the present court system will not be available to the state. The Bill of

Rights provides (Article I, Section 19):13

...The House of Delegates shall assure access to courts for those litigants unable to pay. Court costs shall not be required of any litigant unable to pay.

A similar system of court-appointed "competent counsel" is required in criminal cases (Article I, Section 7, "Rights of Arrestees and Defendants"):14

In all criminal matters, all persons have. the right to the assistance of competent counsel from commencement of a custodial interrogation, during trial and appeal, and whenever they are subject to

The Constitution confers on the Superior Court jurisdiction over "the election and qualifications of delegates," with appeal to the Supreme Court (Article II, Section 10).

C. QUALIFICATIONS, APPOINTMENT AND TENURE

A person nominated as Justice or Judge must be a citizen of the United States and have been "an active member of the Unified State Bar for of the District of Columbia or State five years" and an "actual resident" for five years (Article IV, Section law if he serves on a law school fac4(A)). The Bar member is practicing

ulty or is employed as a lawyer by the State or Federal Government (Id., Section 17).

Justices and judges are nominated by the Judicial Nomination Commission and appointed by the Governor (Article IV, Sections 5 and 8). Section 9 of the Judicial Article then provides:

Judges...and justices...shall be appointed for life, subject to removal by the voters and to removal, suspension or involuntary retirement by the Commission on Judicial Disabilities and Tenure....

Judicial retention elections are pro

vided in Section 10:17

In a manner provided by law, each judge or justice shall be subject to retention or removal by the voters, on a

they shall be informed of their right to consult with counsel....

B. SUPERIOR COURT

The Chief Judge and Associate

(1) appeals from decisions of the Judges of the Superior Court become

Superior Court that are not yet final, judges of the State Superior Court

as may be provided by law; (2) appeals from appellate decisions of the Superior Court, as may be provided by law; (3) appeals from determinations regard. ing disability of the Governor and of the Governor-elect (Article III, Section 13);

(4) appeals from gubernatorial and other executive branch orders and

(Article XVIII, Section 4(A)).15 The

number of Associate Judges-now

forty-four-can be increased by the Legislature (Article IV, Section 3(B)). The Chief Judge is designated by the

Judicial Nomination Commission for a four-year term (Id.).

The jurisdiction of the Superior Court is generally that of the present

been politicized. Elections every six years for Superior Court judges, and every ten years for Supreme Court Justices...are an invitation to partisan politics to

law; and

(5) such other jurisdiction as may be provided by law.

The Chief Justice is to be the "administrative head of all courts of the state" (Article IV, Section 13). The Chief Justice may also appoint, with

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The Superior Court shall have the jurisdiction of civil actions or other matters at law or in equity, brought in the State; criminal proceedings under any statute of the State; and such other jurisdiction, including appellate jurisdiction of cases decided by inferior courts, as may be provided by law. 16

cess of judicial selection."

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67-297 - 87 - 16

non-partisan ballot at the first general election held more than three years after initial appointment. An additional retention election shall be held every ten years for a... justice, and every six years for a...judge.

D. NOMINATION AND

TENURE COMMISSIONS The Judicial Nomination Commis

sion and Commission on Judicial Dis

justices or judges generally follows that now provided for in the D.C. Code (Id., Sections 11(C) and 12).

The most drastic change in the

work of the two Commissions arises

in connection with the Tenure Com

mission. Under the present system, that Commission, upon request of a sitting Judge not less than three

months before the expiration of his or

sion) survive under the proposed

State system, but in altered form. The District of Columbia Judicial Nomination Commission now has seven members. Four are lawyers. The members are variously appointed by the President of the United States (one member), the Board of Governors of the Unified Bar (two mem

President "a written evaluation of the

declaring candidate's performance during his present erm of office." If the Commission determines such a candidate is "exceptionally well qualified" or "well qualified," then the "term of such candidate shall be automatically extended for another full term." The effect of these provi

"The reasonable expectation of our fellow citizens and clients to be free of crime would be seriously jeopardized by the changes in the criminal justice system. Indeed,

City Council (one member), and the Chief Judge of the United States District Court for the District of Columbia (an active or retired federal judge). 18

Under the proposed Constitution, a nine-member Nomination Commission is established, with four non-lawyer members. The latter are appointed by the Governor, with the advice and consent of the Legislature. Two lawyer members also are appointed in this manner. Of the other three lawyer members, two are appointed by the Board of Governors of the Unified Bar, and one by the Legislature (Article IV, Sections 7 and 8). The detailed procedures for the Judicial Nomination Commission in the present D.C. Code 19 are not contained in the Constitution and will have to be supplied by legislation.

The Tenure Commission now consists of seven members, four of whom are attorneys or judges. One is appointed by the President, two by the Board of Governors of the Unified Bar, two by the Mayor, one by the City Council, and one (a judge) by the Chief Judge of the United States District Court for the District of Columbia.20

The Constitution establishes a fivemember Tenure Commission, with a majority of lawyers. Two of these members will be appointed by the Board of Governors of the Unified Bar, two by the Governor with the ad

vice and consent of the Legislature, and one by the Legislature itself (Article IV, Section 11(A) and (B)). The procedure for the removal, suspension, or involuntary retirement of

performed well, with lifetime tenure.

Under the Constitution, 22 a justice or judge whose term is expiring may file a "request for official evaluation' not less than eight months prior to such expiration. Within ninety days of such expiration, the Commission must have prepared, and filed, "a written evaluation of the performance and fitness for continued service." Article IV, Section 10, then provides:

... In evaluating the judge or justice, the Commission shall collect relevant information from a representative sample of judges, lawyers, scholars, litigants, and jurors familiar with the work of the judge or justice.... As at present, the evaluation, which must contain "a rating on a scale established by law,' must be made public.

CHANGES IN THE CRIMINAL

JUSTICE SYSTEM

Important changes are made by the Constitution with respect to the present criminal justice system.

"[U]nreasonable searches and seizures" are outlawed on the basis of "[p]rivacy [being]...a fundamental right." The "fruits of unlawful intrusion" may not be used by the state in any criminal, civil, or administrative proceeding, "whether or not the individual was the target of an unlawful search or seizure, and whether or not the expectation of privacy of that individual was violated" (Article I, Section 6). This section then sets forth limited exceptions permitting warrantless search and seizure. "[U]nreasonable interception of telephonic,

duced would make criminals 'more equal than their victims.'

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telegraphic, electronic, and other forms of communication by electronic methods" also are outlawed (Id.).23

By the abolition of sovereign immunity, any violation of the provisions against unlawful searches and seizures can be the subject of a civil suit for damages and other relief against a State officer or employee "in both official and personal capacity." Judges appear to be excepted from this liability in the following language (Article I, Section 17):24

...except that, no judge of any court may be sued with respect to a decision rendered in any case, but may be questioned and required to testify as to issuance of any warrant. (Emphasis added). Persons "charged with a crime have the right... to the discovery of all evidence possessed by the State." (Article I, Section 7). With respect to grand jury proceedings (Article I, Section 8): A. Fishing expeditions are barred. B. All grand jury witnesses shall have the

C.

right to assistance and presence of counsel, and defendants are entitled to grand jury transcripts in a timely fashion.

The grand jury shall appoint and the state shall pay non-governmental counsel for independent advice.

Continued on page 52. 31

Declaration of Jurisprudence
Continued from page 31.

Bail can be used only "to assure the presence of the accused at trial" (Id., Section 9).25 The death penalty is abolished (Id., Section 11).

The concept of double jeopardy is expanded to bar prosecution of a defendant in the State courts where he or she commits both a State and Federal crime at the same time and is prosecuted in Federal court (Article I, Section 13). The writ of habeas corpus is converted into an additional appeal procedure by provision that it is

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"available promptly at all times, successively, and without limit in all cases of unlawful detention, conviction, or sentencing, whether or not the petitioner is in custody" (Id., Section 15). All common law offenses are abolished, which means that the use of common law elements in the prosecution of statutory crimes also may be barred (Id., Section 16).

COMMENTARY

Reactions to the proposed Constitution may very well vary among

reasonable men and women in the Bench and Bar. Here are the views of one D.C. lawyer-himself a delegate to the convention-which are intended to evoke careful evaluation and examination of the document.

1. The judiciary has been politicized. This was a deliberate change from the present system, which is reasonably well insulated against politics, and was introduced by certain delegates and endorsed by a majority. Elections every six years for Superior Court judges, and every ten years for Supreme Court justices, can have only an adverse effect upon those already on the Bench and on prospective candidates. Such elections are an invitation to partisan politics to take over the process of judicial selection.

2. The reasonable expectation of our fellow citizens and clients to be free of crime would be seriously jeopardized by the changes in the criminal justice system. Indeed, the changes introduced would make criminals "more equal" than their victims.

3. Hopes for a more improved and efficient local government are made usory by the right of public workers to strike and by making government workers subject to suit, personally and for damages, by persons who I claim to have been wronged. These provisions can only inhibit and discourage conscientious public servants. Certainly, the possibility of a police strike will have a predictable and warranted effect upon federal and congressional attitudes toward the proposed new state.

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4. The Bill of Rights and other Articles of the new Constitution create numerous and novel "freedoms," "rights," and "privileges,"26 the exact nature and scope of which are not defined, and the cost of which cannot be estimated. Specific, not implied, causes of action are thereby created.27 An incidental result of these provisions would certainly be that of fuller employment for members of the profession which was the subject of frequent and derogatory remarks on the convention floor.28

5. Aside from the novelty of its provisions, the proposed Constitution contains at least one section which is unconstitutional on its face. This is the so-called "right to change."29 Debate on the convention floor showed this meant the right to revolution.30 The Federal Constitution, however,

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