The D.C. Court of Appeals yesterday struck down a power the City Council often has used to, in effect, pass regular legislation without allowing it to be reviewed by Congress, as required by the Home Rule Charter.
The court's 5-to-3 decision left intact the council's right to declare an emergency one time on a single situation, and to use that action as the basis for enacting legislation that remains in effect -- without congressional review -- for 90 days.
But the District of Columbia's highest court, upholding an earlier decision by the D.C. Superior Court, killed the council's power to adopt a second or subsequent emergency resolution that permits an extension of legislation for additional 90-day periods.
". . . Congress intended the council's emergency power to be an exception to the city's legislative power" and not something that is routine, Associate Judge John M. Ferren wrote.
"It is not an alternative track to be used repeatedly whenever the council perceives an ongoing emergency," Ferren declared.
Lengthy extensions of emergency laws have become a common legislative tool used by the council as they considered permanent legislation. Under the 1975 Home Rule Charter, Congress must review and has the power to veto permanent legislation, but it does not even see emergency measures.
One existing city law, which provides for licensing private colleges, has been passed 10 consecutive times under emergency power and remains in effect today. The council now is considering permanent licensure legislation.
Lawrence H. Mirel, the council's chief lawyer, said only two other laws passed by the council under the overturned procedures now are on the books, and both are of limited public application.
In its decision, the court delayed the effect of its order for 90 days so the council can enact permanent legislation in the meantime if it wants.
The court decision was handed down in a case brought last summer by the Washington Home Owners Council, an organization formed by a group of condominium developers. The group challenged the City Council's right to use its emergency powers to extend for a second time a near-total moratorium on conversions of apartments to condominiums.
The council later passed a third emergency extension of the condo moratorium, but it simultaneously used its normal legislative process -- including the charter-mandated review by Congress -- to pass a stopgap law that keeps the moratorium intact until Aug. 22.
The council is scheduled next Tuesday to consider permanent legislation regulating condominium conversions. If enacted, that legislation also will require congressional review.
G. V. (Mike) Brenneman, chairman of the condominium converters' organization, said he and some other developers may seek to proceed with conversion projects that were under way when the moratorium was invoked by the council. He said the court decision should not open a floodgate of new conversions.
City Council Chairman Arrington Dixon, in a late afternoon news conference yesterday, said the council will "challenge and appeal the ruling." He contended the council has not abused its emergency powers.
An appeal presumably would take the form of a request to the Court of Appeals to rehear the case.
Dixon said the court's decision "doesn't allow us to get through periods like the summer" and other times when Congress is in recess and unable to review council-passed legislation. Such legislation cannot take effect until after a total of 30 days when Congress is in session.
D.C. Corporation Counsel Judith W. Rogers, whose office argued the case before the court, said she had not read the opinion and declined comment.
In a dissenting opinion, Associate Judge Julia Cooper Nack said the court majority's decision would "undermine the effectiveness of the council" and that the council's powers under the charter should be liberally interpreted.
Ferren was joined in the court's majority by Judges George R. Gallagher, John W. Kern III, Frank Q. Nebeker and Stanley S. Harris. Joining Judge Mack in supporting the council were Chief Judge Theodore R. Newman Jr. and Judge William C. Pryor. Judge Catherine B. Kelly did not participate in the opinion.