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BY COURTS OULAHAN

THE LEGISLATIVE at least five years (Id., Section 4(D)).'
BRANCH

The powers of the Governor are

generally those of any other state Article II of the Constitution creates Chief Executive (Article III, Sections a unicameral legislature called the 5 and 6). The Governor may exercise

House of Delegates (Section 1).? Forty a line-item veto power over appropriaINTRODUCTION

members are elected from single tion bills and veto other bills (Article

member districts (Article II, Section II, Sections 16-17). The proposed District of Columbia 2), each of which “shall have a popula. Not more than twenty offices and Constitution for the State of New Col- tion which varies by no more than agencies may be established within umbia was adopted May 29, 1982, by three percent from the average popu- the Executive_Branch (Article III, the Statehood Constitutional Conven- lation of all districts" (Article Xiv, Section 7(A)). This does not include a tion. It is probably one of the most

Section 3). Whether or not the exist. department headed by an Attorney extensive and detailed State constitu- ing eight-ward structure of the city, General, who “shall be the chief legal tions in the United States. Its Pre divided into five equal electoral dis- officer of the state and shall have amble and thirteen articles' contain

tricts, will continue will depend upon responsibility for advising the Goverover 250 separate sections and sub

the decision of an Apportionment nor on legal questions, prosecuting of sections and over 15,000 words. Commission (Id., Sections 1 and 2). fenders, and representing the state in Almost every line of the proposed

Legislators serve for terms of four all legal matters" (Id., Section 3). All Constitution should be a matter of in

years (Article II, Section 5). One-half gubernatorial appointments are subterest to Bench and Bar.

are elected in ensuing even-numbered ject to the advice and consent of the The Convention President (The years (Id., Section 6). A legislator Legislature (Id., Sections 3, 8(A) and Washington Post, June 6, 1982) claims

must be at least 18 years of age, a citi- 10(A)). the Constitution "is already being

zen of the United States, a resident of hailed as the most progressive official the District of Columbia or State for THE JUDICIAL BRANCH state document produced in the

at least three years, a resident of the history of this nation.” Hailed by legislative district for at least 18

Although the courts and judges of whom? Progressive for what? The months, and a registered voter. A Del- the present judicial system in the DisBench and Bar--and history-willegate may not move from his legisla. trict of Columbia are carried over have to be the judge of the President's

tive district during his term of office under the proposed Constitution into hyperbole. The proposed Legislative (Id., Section 3). The Legislature is

a state "unified judicial system" (Arand Executive Articles follow reason

directed to adopt a Code of Ethics ticle IV, Section 1), the provisions of ably enough the standard organization governing its members. Any member the Judicial Article differ markedly of other states. "Rights,' "free

who has “personal or private interests from those of the District of Columbia doms," tax provisions, and the civil and criminal judicial system are dif

... in any proposed or pending bill Self-Government and Governmental

shall disclose such fact to the presid- Reorganization Act.' ferent matters altogether.

ing officer (of the House) and shall not The new judiciary consists of a The proposed Constitution will be vote on that bill" (Id., Section 21). Supreme Court (formerly the D.C. submitted to the D.C. voters for ap- A law cannot take effect earlier Court of Appeals), a Superior Court, proval or rejection at the November 2, than 90 days after enactment except and "such inferior and appellate 1982 elections. If approved by a ma- for emergency laws and those which courts as may be established by law" jority of those voting, the document

are exempt (Article II, Section 18). (Article IV, Section 1). The latter promust be submitted by the Mayor to This period is to enable the voters to vision was designed to permit the new Congress, where regular statutory institute a referendum petition, which state to establish an intermediate procedures must be followed. The en- asks that a law be submitted in whole Court of Appeals, should circumabling act, including any changes Con- or in part to the voters (Article XIV, stances and case load so require in the gress may require in the proposed Sections 3(B) and (C)). The operation future, and other types of courts, such Constitution, may be adopted by ma- of the law is suspended upon the filing as a Court of Claims or local courts. jority vote of each House residential of an effective referendum petition Constitutional provisions relating to signature is required. If Congressional (Id., Section 3(F)).

the judiciary may be changed only by changes are required, another vote by

amendment to the Constitution and D.C. citizens must be held. Statehood

may not be the subjects of initiatives is formally effected by Presidential

THE EXECUTIVE BRANCH

or referenda (Article XV, Sections proclamation.

2(E) and 3(D)).
The Executive Branch is headed by
The following explains what the
Constitution would do if it is adopted a Governor and Lieutenant Governor, A. THE SUPREME COURT

both of whom must be elected on the and effected in its present form.

The Chief Judge and Associate same ticket. They serve for terms of Judges of the Court of Appeals four years but are ineligible for reelec become the Chief Justice and Associ

tion after two terms (Article III, Sec. ate Justices of the new Supreme Courts Oulahan was an elected delegate from tions 1, 2, and 4(A) and (B)). The Gov. Court (Article XVIII, Section 4(A)). Ward III to the D.C. Stalchood Constitu

ernor and Lieutenant Governor must The Chief Justice would be appointed tional Convention, where he was a member of the Judiciary Committee. He was one of be at least 30 years of age, citizens of by the Judicial Nomination Commis. six delegates who voted against, or abstained the United States, and residents of sion for a term of four years (Article from voting on the document.

the District of Columbia or State for IV, Section 2(B)). The Court is re.

Maestration by Zchulom horison

July/August 1982 • Volume 6 Number 6

29

the approval of the entire Supreme The Constitution confers on the
Court, an "administrative director" Superior Court jurisdiction over "the
(Id.). These provisions are not in- election and qualifications of dele-
tended to prohibit the appointment of gates," with appeal to the Supreme
an administrative director to assist Court (Article II, Section 10).
the Chief Judge of the Superior Court

C. QUALIFICATIONS, APPOINTin carrying out his own administrative

MENT AND TENURE
duties with respect to that court.
Rules governing court procedure

A person nominated as Justice or and administration would become the Judge must be a citizen of the United responsibility of the Supreme Court

States and have been "an active (Article IV, Section 15). A budget for member of the Unified State Bar for the judicial system is the responsibility five years” and an "actual resident" of the Chief Justice, who submits that

of the District of Columbia or State budget to the Governor. The Gover.

for five years (Article IV, Section nor transmits “the proposed budget 4(A)). The Bar member is practicing to the House of Delegates without

law if he serves on a law school facchanging it, but may make recom

ulty or is employed as a lawyer by the mendations with respect to it.(Id.,

State or Federal Government (Id.,
Section 14). 12

Section 17).
In this connection, certain revenues

Justices and judges are nominated of the present court system will not be by the Judicial Nomination Commisavailable to the state. The Bill of sion and appointed by the Governor Rights provides (Article I, Section Article IV, Sections 5 and 8). Section 19):13

9 of the Judicial Article then provides: ... The House of Delegates shall Judges... and justices. . . shall be apassure access to courts for those liti- pointed for lise, subject to removal by gants unable to pay. Court costs shall the voters and to removal, suspension not be required of any litigant unable to

or in voluntary retirement by the Compay.

mission on Judicial Disabilities and

Tenure....
A similar system of court-appointed
"competent counsel" is required in

Judicial retention elections are procriminal cases (Article I, Section 7,

vided in Section 10:17 "Rights of Arrestees and Defen

In a manner provided by law, each dants''):14

judge or justice shall be subject to In all criminal matters, all persons have

retention or removal by the voters, on a the right to the assistance of competent

counsel from commencement of a cus. quired to sit en banc and not by panel or division. 10 In addition to appeals11

todial interrogation, during trial and ap

peal, and whenever they are subjec: to from a future intermediate Court of

a deprivation of liberty. When arrested “The judiciary has Appeals, the jurisdiction of the

they shall be informed of their right to Supreme Court closely resembles that consult with counsel....

been politicized. of the present D.C. Court of Appeals

Elections every six (Id., Section 2(A) (1)-(5)):

B. SUPERIOR COURT

The Chief Judge and Associate (1) appeals from decisions of the Judges of the Superior Court become

for Superior

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

Court Court judges, and as may be provided by law;

(Article XVIII, Section 4(A)). 15 The (2) appeals from appellate decisions of the Superior Court, as may be pro

number of Associate Judges-now every ten years for vided by law; forty-four-can be increased by the

Supreme Court (3) appeals from determinations regard- Legislature (Article IV, Section 3(B)).

ing disability of the Governor and of The Chief Judge is designated by the Justices ... are an the Governor-elect (Article III, Sec- Judicial Nomination Commission for a tion 13); four-year term (Id.).

invitation to par(4) appeals from gubernatorial and The jurisdiction of the Superior other executive branch orders and Court is generally that of the present

tisan politics to decisions, as may be provided by Trial Court (Article IV, Section

3(A)): take over the prolaw; and

The Superior Court shall have the juris(5) such other jurisdiction as may be

diction of civil actions or other matters cess of judicial provided by law.

at law or in equity, brought in the State;

criminal proceedings under any statute selection.The Chief Justice is to be the “ad

of the State; and such other jurisdic. ministrative head of all courts of the

tion, including appellate jurisdiction of state" (Article IV, Section 13). The cases decided by inferior courts, as may Chief Justice may also appoint, with be provided by law. 16

30

District Lawyer

67-297 O - 87 - 16

work of the two commissions arises expectation of our

non-partisan ballot at the first general justices or judges generally follows election held more than three years that now provided for in the D.C. after initial appointment. An additional Code (Id., Sections 11(C) and 12). retention election shall be held every

“The reasonable The most drastic change in the ten years for a...justice, and every six years for a... judge.

the Tenure D. NOMINATION AND

mission. Under the present system, fellow citizens and TENURE COMMISSIONS that Commission, upon request of a The Judicial Nomination Commis- sitting Judge not less than three

clients to be free sion and Commission on Judicial Dis months before the expiration of his por of crime would be abilities and Tenure (Tenure Commis- her term, prepares and files with the sion) survive under the proposed President “a written evaluation of the seriously jeopardState system, but in altered form. declaring candidate's performance

The District of Columbia Judicial during his present erm of office." If ized by the
Nomination Commission now has the Commission determines such a
seven members. Four are lawyers. candidate is “exceptionally well quali-

changes in the The members are variously appointed fied” or “well qualified,” then the

criminal justice by the President of the United States "term of such candidate shall be auto(one member), the Board of Gover- matically extended for another full

system. Indeed, nors of the Unified Bar (two mem

term."21 The effect of these provibers), the Mayor (two

members), the sions is to provide a judge, who has the changes introCity Council (one member), and the performed well, with lifetime tenure. Chief Judge of the United States Dis. Under the Constitutio 22 a justice

duced would trict Court for the District of Colum- or judge whose term is expiring may make criminals bia (an active or retired federal file a "request for official evaluation' judge). 18

not less than eight months prior to 'more equal than

such expiration. Within ninety days of Under the proposed Constitution, a nine-member Nomination - Commis- have prepared, and filed, “a written such expiration, the Commission must

their victims.' sion is established, with four non-law: evaluation of the performance and fityer members. The latter are appointed ness for continued service." Article by the Governor, with the advice and IV, Section 10, then provides: • consent of the Legislature. Two lawyer

telegraphic, electronic, and other members also are appointed in this

... In evaluating the judge or justice, forms of communication by electronic

the Commission shall collect relevant methods also are outlawed (Id.).23 manner. Of the other three lawyer

information from a representative sammembers, two are appointed by the

By the abolition of sovereign im

ple of judges, lawyers, scholars, liti- munity, any violation of the provisions Board of Governors of the Unified gants, and jurors familiar with the work against unlawful searches and sei: Bar, and one by the Legislature (Arti- of the judge or justice.... cle IV, Sections 7 and 8). The detailed As at present, the evaluation, which for dam

zures can be the subject of a civil suit procedures for the Judicial Nomina- must contain "a rating on a scale State officer or employee "in both of

and other relief against a tion Commission in the present D.C. established by law," must be made ficial and personal capacity." Judges Code 19 are not contained in the Con

public. stitution and will have to be supplied

appear to be excepted from this liaby legislation.

bility in the following language (ArtiThe Tenure Commission now con

cle I, Section 17):24 CHANGES IN THE CRIMINAL sists of seven members, four of whom

JUSTICE SYSTEM

... except that, no judge of any court are attorneys or judges. One is ap

may be sued with respect to a decision

rendered in any case, but may be ques. pointed by the President, two by the Important changes are made by the Board of Governors of the Unified Constitution with respect to the pres

tioned and required to testify as to issu

ance of any warrant. (Emphasis added). Bar, two by the Mayor, one by the ent criminal justice system. City Council, and one (a judge) by the "[U]nreasonable searches and sei- Persons "charged with a crime have Chief Judge of the United States Dis- zures are outlawed on the basis of the right... to the discovery of all evitrict Court for the District of Col- "[p]rivacy (being)...a fundamental dence possessed by the State." (Artiumbia. 20

right." The "fruits of unlawful intru- cle I, Section 7). With respect to grand The Constitution establishes a five- sion" may not be used by the state in jury proceedings (Anicle 1, Section 8): member Tenure Commission, with a any criminal, civil, or admi ative A. Fishing expeditions are barred. majority of lawyers. Two of these proceeding, "whether or not the indi- B. All grand jury witnesses shall have the members will be appointed by the vidual was the target of an unlawful right to assistance and presence of

counsel, and defendants are entitled Board of Governors of the Unified search or seizure, and whether or not

to grand jury transcripts in a timely Bar, two by the Governor with the ad- the expectation of privacy of that in

fashion. vice and consent of the Legislature, dividual was violated" (Article 1, Sec. c. The grand jury shall appoint and the and one by the Legislature itself (Arti- tion 6). This section then sets forth

state shall pay non-governmental coun cle IV, Section 11(A) and (B)). The limited exceptions permitting war- sel for independent advice. procedure for the removal, suspen- rantless search and seizure. "(U]nsion, or involuntary retirement of reasonable interception of telephonic,

Continued on page 52.

July August 1982 • Volume 6 Number 6

31

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Declaration of Jurisprudence "available promptly at all times, suc- reasonable men and women in the Continued from page 31.

cessively, and without limit in all Bench and Bar. Here are the views of Bail can be used only “to assure the cases of unlawful detention, convic- one D.C. lawyer-himself a delegate presence of the accused at trial" (., tion, or sentencing, whether or not the to the convention-which are intended Section 9).25 The death penalty is petitioner is in custody" (Id., Section to evoke careful evaluation and examabolished (Id., Section 11).

15). All common law offenses are ination of the document. The concept of double jeopardy is abolished, which means that the use expanded to bar prosecution of a of common law elements in the prose

1. The judiciary has been politidefendant in the State courts where cution of statutory crimes also may be

cized. This was a deliberate change he or she commits both a State and barred (Id., Section 16).

from the present system, which is Federal crime at the same time and is

reasonably well insulated against prosecuted in Federal court (Article i,

politics, and was introduced by cer.

COMMENTARY Section 13). The writ of habeas cor

tain delegates and endorsed by a mapus is converted into an additional ap- Reactions to the proposed Constitu- jority. Elections every six years for peal procedure by provision that it is tion may very well vary among

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 claim to have been wronged. These

provisions can only inhibit and dis(202) 832-7400

courage conscientious public ser. vants. Certainly, the possibility of a

police strike will have a predictable SPECIALIZING IN SERVICING THE

and warranted effect upon federal and

congressional attitudes toward the LEGAL PROFESSION

proposed new state.

4. The Bill of Rights and other ArCONTRACTS AVAILABLE AT SPECIAL RATES

ticles of the new Constitution create

numerous and novel "freedoms," TWO WAY RADIO DISPATCHED VEHICLES

"rights," and "privileges, "26 the exact nature and scope of which are not

defined, and the cost of which cannot CAREFUL AND EXPERT HANDLING

be estimated. Specific, not implied, BY PROFESSIONAL DRIVERS

causes of action are thereby created. 27 An incidental result of these provisions would certainly be that of fuller employment for members of the pro

fession which was the subject of freIf you are sending one of your staft out of the office to make quent and derogatory remarks on the a $4.00 delivery you either don't need that employee or are

convention floor.28

5. Aside from the novelty of its prowasting his/her time and your money!

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

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District Lawyer

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WANTED ISRAEL BONDS

guarantees a democratic, representative form of government to all citizens of the States which join the Union.31 The adoption of such a "right to change" is irresponsible and legally mischievous, at the very least.

Statehood is not yet the issue. A fair and viable Constitution is the issue. Any other form of document diminishes the chances of, and perhaps even destroys, aspirations toward statehood. Members of the Bench and Bar, as well as other concerned citizens of the District of Columbia, should study these provisions and reach their own conclusions on the merits of the preposed Constitution for the State of New Columbia.

FOOTNOTES

'1. Bill of Rights; II. The Legislative Branch; III. The Executive Branch; IV. The Judicial Branch; V. Suffrage; VI. Education; VII. Finance and Taxation; VIII. Banking and Corporations; IX. Land and the Environment; X. Public Services: XI. Health, Housing and Social Services; XII. Labor; XIII. Local Government Units; XIV. Apportionment; XV. Initiative, Referendum and Recall; XVI. Intergovernmental Relations; XVII. Amendment and Revision; and XVIII. Transition.

According to the Legislative Committee, this was proposed because "[a] one-house legislature is familiar to District residents," "silt is easier to hold legislators accountable when there is only one house," and such a "legislature is considerably less expensive than a twohouse legislature" (Committee Report, p. 14). Members receive "annual salaries and such allowances as may be prescribed by law," upon the recommendation of a salary commission (Article II, Section 8). An amendment to bar absolutely annual salaries for full-time service was defeated

According to the Legislative Committee, "[t]he decision to have single-member districts arose from the Committee's view that at-large elections tended to favor wealthier candidates.... In addition, at-large elections have had the effect, in some cities, of under representing minorities, and the Committee wanted to give no encouragement to the practice" (Committee Report, p. 15).

. 'Laws exempt from referendum relate to "human rights or protections" or to the "appointment, qualifications, tenure, removal or compensation of judges; the powers, creation, or abolition of courts; (and) the appropriation of money....Any capital project may be the subject of a referendum except for capital projects for public education" (Article XV, Section 3(D))

A referendum petition must contain the verified signatures of "not less than five percent of the statewide votes cast for all candidates for Governor at the most recent gubernatorial election, provided that the signature percentage requirement shall have been met in at least twothirds of the legislative districts of the State" (Article XV, Section 3(B)). Initiatives are gen.

July/August 1982 • Volume 6 Number 6

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