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erally subject to the same requirements as referenda (Id., Section 2). Recall petitions against "elected state or local government officials" require "at least 25 percent of the total number of all votes cast in the most recent election for the position in question" (Id., Sections 5(A) and (D)).

According to the Committee Report, "clandidates for Governor and Lt. Governor shall run jointly on the grounds that the Lt. Governor should hold the same views as the Governor..." (p. 3).

These qualifications must be met of the date of taking office. Presumably, this same policy applies to all electoral qualifications under the Constitution.

*Pub. L. 93-198 (Dec. 24, 1973), Acts Relating to Establishment of the District, 1 D.C. Code at 175 et seq. (1981 ed.). Part C of this Act deals with the Judiciary (p. 195 et seq.).

The same is true of Court of Appeals retired judges.

10See Statement by Theodore R. Newman, Jr., Chief Judge, District of Columbia Court of Appeals, 1980 Annual Report, District of Columbia Courts at 17 (1982): "*** I continue to maintain...that three-judge panels do not permit the highest of the District of Columbia to give the appropriate attention to the complex and unique legal issues which challenge our court of last resort." Although the reasons for such reticence are understandable to a lawyer, it is unfortunate that the Bench found itself unable to supply noncontroversial but meaningful suggestions and data to the Judiciary Committee and the Convention itself during the drafting of the Constitution. Indeed, unwarranted but pointed remarks were made on this subject during the Convention proceedings. The Clerk of the Superior Court did appear before the Committee and was most helpful in supplying some background information concerning the D.C. court system.

****[A]ppeals" probably should read "writs of certiorari" so far as Supreme Court judicial review is concerned.

12Section 14 further provides: "***The Governor shall not be required to propose reve. nues to fund the entire submission but must propose revenues to finance that portion of the proposed budget recommended for acceptance by the House of Delegates."

13 The Bill of Rights Committee originally proposed that all court costs should be abolished. Its Report states, in part:

[T]he services of an attorney shall be provided for those unable then selves to pay for such service (in civil cases), in order that no person having a litigable grievance shall be cut out of the courts.

The (fina!)...provision merely requires that, like any other governmental offices, operation of the courts be supported out of public funds. rather than by donations at the door" from those using them. Justice, and therefore access to and utilization of the courts, is a right, not a privilege to be granted or denied by the State... (page 19 unnumbered). The word "arrest" was used by the Committee immediately after the words "custodial investigation," in its original draft of Article 1 (May 21, 1982, Draft, p. 3). This word was dropped by the Committee after questions were raised as to whether attorneys would have to ride in police cars in order to ensure that valid arrests were being made. Even after the word "arrests" was dropped, it was pointed out that an "arrest" was a "deprivation of liberty."

15 The same is true of Superior Court Senior and Retired Judges

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ioThis appellate" jurisdiction was inserted to cover possible appeals from "neighborhood" or "people's" courts, should they be established.

''The Judiciary Committee recommended in its Report that Judges be appointed for ten years and Justices for twelve years, after nomination by the Judicial Nomination Commission and appointment by the Governor with the advice and consent of the Legislature (Sec. tions 3.10 and 3.12, pp. 4-6, April 19, 1982). A minority report recommended fifteen-year terms with the same nomination and appointment procedure. The Committee's recommendations in this matter were drastically changed on the first reading of the article.

1811 D.C. Code App. 434(a) and (b) (4) (1981 ed.).

1911 D.C. Code App. 434(c) and (dX1981 ed.).

2011 D.C. Code App. 431(eX3) (1981 ed.). 11 D.C. Code App. 433(c) (1981 ed.).

27The Judiciary Committee recommended the procedures set forth in Section 433(c). Again, this proposal was rejected and changed during the first reading of the Judicial Article.

The exact meaning of these terms would be for the courts to determine. The Bill of Rights Committee did not submit a written report on Section 6 of Article I.

2*The Committee report on this matter states (p. 16 unnumbered): *****With the growth of judge shopping' and 'rubberstamping' by many judges of any warrant placed before them, judicial approval of warrants has lost much of its protective value. Accordingly, this Section will require compulsory testimony by judges as to their knowledge of the facts and circumstances with respect to which they were willing to sign a warrant, and their reasons for the issuance, thereby making advisable a greater degree of considered judgment and less 'rubberstamping' than now prevails."

25 The Committee report does not deal with the continued validity of 23 D.C. Code 1321(a), which permits a judicial officer not to release a suspect in a noncapital case on persona 'ecog. nizance or bail where he determines that such a release will not reasonably assure the appearance of the person as required or the safety of any other person or the community."

28The following "freedoms" and "rights" are, among others, created or expanded by the Constitution: (1) Freedom from "historic group discrimination, public or private" (Article I, Sec. tion 3); (2) "Right" to "'(privacy," including the "right of the individual to decide whether to procreate or to bear a child" (Id., Section 4); (3) Freedom from "[pJolitical surveillance" (ld.): (4) The "right...to fair and just treatment in... legislative and executive investigations" (Article 1, Section 5); (5) The "right to alter, reform, or abolish" the form of government established by the Constitution (Id., Section 22); (6) "The State shall guarantee equality of educational opportunity in public educational institutions," in default of which the State may be sued (Article VI, Section 1(B)); (7) "Each person has the right to a clean and healthful environment" and may "enforce these rights and duties against any party, public or private, through appropriate legal proceedings..." (Arurle IX, Section 2(C)); (8) The "right to strike" by private or public workers (Article XII, Section 1); and (9) The right to employment or, "if unable to work, an income sufficient to meet basic human needs" (Article 1, Section 20).

27" All Sections of this Article (Bill of Rights) shall be self-executing" (Article 1, Section 24).

July/August 1982 • Volume 6 Number 6

55

*E.g., Transcript, April 27, 1982, p. 89: ish it." (Article 1, Section 22). "DELEGATE:... I think that we are still soThe "right to change," according to the Bill speaking of lawyers as though they are from of Rights Committee, may be exercised by any outer space. SPEAKER: They are, they are." expedient means" (Committee Report, May 22,

Transcript, April 29, 1982, pp. 128-29: 1982, unnumbered page 23). The language is "DELEGATE:... I just don't happen to be one taken from the Maryland Declaration of Rights, of those who worships at the shrine of the legal- Article 1(1867). It appears to stem initially from istic mind. I would hate to see use move into the Declaration of Independence ("the right of worshipping at that shrine.... I think that the People to alter or to abolish (any form of would be reprehensible."

Government])." That document, of course, was Transcript, April 30, 1982, p. 196: "DELE- supplanted by the U.S. Constitution. GATE:.. It appears to me that all of our gov- 31 The "right to change" clause clearly vioernment employees, whether they be judges or lates Article IV of the Federal Constitution governors or legislators, if we cannot afford to ("The United States shall guarantee to every pay them the salaries that we have been giving State in the Union a Republican Form of Govthem, then they should take a salary cut. And ernment....") (Section 4). The latter is the frankly, I think that given what is happening, "supreme law of the land" (Id., Section 2). they get richer and we get poorer, that is the There is no "inalienable right to revolution, very reason that I opposed having more judges e.g.. Texas v. White, 74 U.S. (7 Wall.) 700, 729 and I want fewer judges...."

(1969). The "sudden impulses of mere majoriTranscript, April 30, 1982, p. 197: "DELE- ties" cannot change a democratic form of govGATE: If you are going to protect the judges, ernment. Duncan v. McCall, 139 U.S. 449, 456 why aren't you going to protect the street (1890). Further, the Maryland Court of Appeals sweepers and say the same thing about them? has held unenforcable and invalid the Article in Who is first among equals?"

its 1867 Declaration of Rights on which the 29''The State with its institutions belongs to Committee based Section 22 in the proposed the people who inhabit it. Whenever a govern- Bill of Rights. Braverman v. Bar Ass'n, 209 Md. ment fails to serve its people, they may exercise 326, 121 A.2d 472, 482 (1956), cert. denied, 352 their inalienable right to alter, reform, or abol- U.S. 830 (1956).

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District Lawyer

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THE PROPOSED NEW COLUMBIA CONSTITUTION:

CREATING A “MANACLED STATE”

COURTS OULAHAN

Reprinted from
THE AMERICAN L'NIVERSITY LAW REVIEW

Volume 32, Spring 1983, Vuniber 3
Copyright © 1983 by The Washington College of Law,

The American University

VOLLNE 32

SPRING 1983

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THE PROPOSED
NEW COLUMBIA CONSTITUTION:
CREATING A “MANACLED STATE

COURTS OULAHAN*

Citizens of the District of Columbia have taken significant steps toward achieving statehood for the District of Columbia. In early 1982 a proposed constitution for the state of "New Columbia" was drafted. In November of that year volers in the District by a narrow margin adopted the proposed constitution, leaving but one major obstacle to the achievement of statehood: congressional and presidential acceplance of the New Columbia Constitution.

In this Article, the author, an elected Constitutional Convention delegate, examines the preamble and Bill of Righes of the New Columbia Constitution. He argues that the proposed Bill of Righus represents an unwarranted and ill-advised expansion of the individual righus now protected by the United States Constitulion and that this expansion fatally restricus state powers necessary for modern governance. Enactment of this Bill of Rights, according to the author, would preclude the new stale from being politically or economically viable. The author concludes, therefore, that the Bill of Rights alone may well persuade Congress that the New Columbia Constitution as drafted does not meet the needs of good government or even of statehood.

TABLE OF CONTENTS

Introduction

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Member, District of Columbia and Ohio Bars. B.S., 1942, Haverford College; J.D., 1948, Yale Law School. The author, a native Washingtonian, has practiced law in the District of Columbia since his graduation from law school. In 1981, he was elected as a delegate to the District of Columbia Statehood Constitutional Convention. Subsequently he participated in the drafting of the proposed New Columbia Constitution, and served as a member of the Judiciary Committee.

a He was one of two Convention delegates who voted against the document as drafted, while four abstained.

The author was assisted in the preparation of this Article by Bernard J. Sussman, Esq., a 1979 graduate of the Washington College of Law, The American University, and by Worth C. Hicks, a paralegal assistant. Appreciation is expressed for the assistance rendered by the staff of The American University Low Rwiew.

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