b'Department of Justice Views on the Constitution Adopted by\nthe Constitutional Convention of the Virgin Islands\n[T h e fo llo w in g m em o ran d u m , initially d ra fte d in th e O ffice o f L egal C ounsel at th e\nreq u est o f th e A ssistant A tto rn e y G e n e ra l for L eg islativ e A ffairs, p resen ts th e D e p a rt\xc2\xad\nm ent o f Ju stice\'s v iew s on ce rta in provisions o f th e c o n stitu tio n a d o p te d by th e 1980\nco n stitu tio n al c o n v e n tio n o f th e V irg in Islands. T h is c o n stitu tio n w as a p p ro v e d by\nC o n g ress for subm ission to the peo p le o f th e V irgin Islands by Pub. L. N o. 97-2 1 , 95\nStat. 105 (1981), but w as su b seq u en tly re je c te d in a refe ren d u m . A s o f th e d a te o f\npublicatio n o f this v olum e, th e V irg in Islands d o n ot h av e a co n stitu tio n . T h e fo llo w in g\nanalysis o f th e p ro v isio n s o f th e re je c te d c o n stitu tio n discusses im p o rtan t an d re c u rrin g\nco n stitu tio n al and legal issues arising in th e co n tex t o f fe d e ra l-te rrito ria l relations.]\n\nSeptember 9, 1980\nMEMORANDUM OPINION FOR T H E DIRECTOR,\nO FFIC E OF M AN AG EM ENT AND BUDGET\nThis responds to your request for the views of the Department of\nJustice on the constitution adopted by the constitutional convention of\nthe Virgin Islands on July 31, 1980.\nSection 2(a) of the Act of October 21, 1976, Pub. L. No. 94-584, 90\nStat. 2899, 48 U.S.C. preceding \xc2\xa7 1541 (\xe2\x80\x9cEnabling A ct\xe2\x80\x9d), authorized the\nlegislature of the Virgin Islands to call a constitutional convention to\ndraft a constitution for the local self-government of the people of the\nVirgin Islands within the existing territorial-federal relationship. Section\n2(b) of the Act provided that such constitution shall: (1) recognize and\nbe consistent with the sovereignty of the United States and the suprem\xc2\xad\nacy of the provisions of the Constitution, treaties and laws of the\nUnited States applicable to the Virgin Islands, iifcluding the provisions\nof the Organic Act of 1936 of the Virgin Islands and the Revised\nOrganic Act of the Virgin Islands of 1954 which do not relate to local\nself-government; (2) provide for a republican form of government,\nconsisting of three branches; (3) contain a bill of rights; (4) deal with\nthe subject of those provisions of the Revised Organic Act of the\nVirgin Islands of 1954, as amended, which relate to local selfgovernment; and (5) provide for a system of local courts consistent\nwith the provisions of the Revised Organic Act of the Virgin Islands,\nas amended.\nSections 4 and 5 of the Enabling Act provide that the constitutional\nconvention shall submit to the Governor of the Virgin Islands a\n759\n\n\x0cproposed constitution which shall comply with the requirements of\n\xc2\xa7 2(b). The Governor in turn shall submit the constitution to the Presi\xc2\xad\ndent of the United States, who shall transmit it to Congress within 60\ncalendar days together with his comments. The constitution shall be\n\xe2\x80\x9cdeemed approved\xe2\x80\x9d by Congress within 60 days after its transmittal by\nthe President, unless prior to that date Congress, by Joint Resolution\nsubject to the approval of the President, has approved, modified, or\namended it. The draft constitution as approved or modified by Con\xc2\xad\ngress shall then be submitted to the qualified voters of the Virgin\nIslands in a referendum for acceptance or rejection.\nI. Recognition of the Sovereignty of the United States and Supremacy of\nthe Constitution and Laws of the United States\n\nIn contrast to the 1978 constitution,1 this constitution does not ex\xc2\xad\npressly comply with the requirement of \xc2\xa7 2(b)(1) of the Enabling Act\nthat it recognize the sovereignty of the United States and the suprem\xc2\xad\nacy of its Constitution and of those of its laws that are applicable to the\nVirgin Islands. Indeed, Article V, \xc2\xa7 1 of the constitution refers to the\nsupremacy of the constitution of the Virgin Islands and of the laws\nenacted under it without any reference to the supremacy of the Consti\xc2\xad\ntution and laws of the United States.\nIf the Enabling Act did not contain this express requirement, the\nfailure of the constitution to recognize the sovereignty of the United\nStates and the supremacy of its Constitution and laws would not have\nany substantial legal consequences because they are implied in the\nOrganic Act and flow from the territorial relationship. Indeed, few if\nany state constitutions specifically refer to the sovereignty of the\nUnited States or the supremacy of its Constitution and laws. The same\nis true of the recently adopted constitution of the Northern Mariana\nIslands.\nMoreover, the preamble to the constitution declares that the Virgin\nIslands assume \xe2\x80\x9cthe responsibilities of self-government in political union\nwith the United States\xe2\x80\x9d; in the draft official analysis of the constitu\xc2\xad\ntion,2 the comments on the preamble contain the statement in \xe2\x80\x9caccord\xc2\xad\nance with section 2(b) of U.S. Public Law 94-584 (October 21, 1976)\n[the Enabling Act] recognition is given to the sovereignty of the United\nStates over the Virgin Islands\xe2\x80\x9d; and finally, Article V, \xc2\xa7 1 of the\nconstitution provides that the legislative power of the Virgin Islands\n\xe2\x80\x9cshall extend to all subjects . . . consistent with . . . the Constitution\nand laws of the United States applicable to the Virgin Islands.\xe2\x80\x9d During\nthe Senate hearings on the 1978 Guam constitution,3 which also failed\n1 T h e constitution adopted by the 1978 constitutional convention o f the V irgin Islands w as \xe2\x80\x9cdeem ed\nap p ro v ed \xe2\x80\x9d by C ongress but was defeated in the referendum .\n2 W e have not as yet received the final text o f those com m ents as approved by the constitutional\nconvention.\n3 T h e 1978 G uam constitution w as also defeated in a referendum .\n\n760\n\n\x0cto recognize expressly the sovereignty of the United States and the\nsupremacy of its Constitution and laws, the Department of the Interior\nand the Department of Justice concluded that analogous provisions in\nthe Guam constitution and its official analysis constituted at least sub\xc2\xad\nstantial compliance with \xc2\xa7 2(b)(1) of the Enabling Act.4 In particular,\nthe Department of Justice took the position that, as the result of nearly\n200 years of history, the term \xe2\x80\x9cpolitical union with the United States\xe2\x80\x9d\nnecessarily carries with it recognition of the sovereignty of the United\nStates and the supremacy of its laws.5 The Department of the Interior\nindicated that the definition of the legislative power of Guam carried\nwith it the recognition of the supremacy of the Constitution and laws\nof the United States.6 The Department of Justice concluded:\nIndeed, it seems to us that this statement in the preamble\nis sufficient to overcome any contention that the explicit\nor tacit approval of the constitution by Congress would\nhave the effect of relinquishing the sovereignty of the\nUnited States over Guam and the supremacy of Federal\nlaws.7\nOn the basis of this history, we conclude that this proposed constitu\xc2\xad\ntion is in substantial compliance with \xc2\xa7 2(b)(1) as regards this point.\nII. Bill of Rights\n\nThe Bill of Rights, Article I of the constitution, does not appear to\nbe in conflict with the Enabling Act or any pertinent federal law.\nHowever, we believe that some of its provisions and related sections in\nother parts of the constitution have not been drafted with adequate\nclarity and precision. As President Carter pointed out on April 28,\n1978, in his comments on the Guam constitution (Pub. Papers of Jimmy\nCarter 795, 796-97 (1978)), such vagueness may result in litigation that\ncould burden or curtail effective local government.\n1. Article I, \xc2\xa7 1: Fundamental Rights\nThe first sentence of this section would provide that \xe2\x80\x9cthe dignity of\nthe human being is inviolable.\xe2\x80\x9d There is no definition of the scope of\nthe elusive term \xe2\x80\x9cdignity.\xe2\x80\x9d It is not clear whether the section is di\xc2\xad\nrected only at governmental action or also at private action, and\nwhether the first sentence is supposed to be defined by the two sen\xc2\xad\ntences following it. Moreover, the relationship between the equal\n4 Constitution o f Guam, H earing before the C om m ittee on E nergy and N atural R esources, U nited\nStates Senate, 95th C ong., 2d Sess. 60-67 (1978) ("H earing").\n5 Id., at 64.\n\xc2\xab/</.. at 61.\n7 Id., at 64.\n\n761\n\n\x0cprotection clause in the second sentence and the prohibition against\ndiscrimination in the third sentence is unclear.\n2. Article I, \xc2\xa7 3: Right o f Privacy\nThis section seems to create an absolute right of privacy that cannot\nbe limited or defined by statute. Again, it is not clear whether this\nclause is directed only at governmental action or also at private action.\nMoreover, while under Article 1, \xc2\xa7 4 of the Virgin Islands constitution\nthe right to know provided for in that section would yield to the right\nof privacy, the constitution does not attempt to solve potential conflicts\nbetween the \xe2\x80\x9cabsolute\xe2\x80\x9d right of privacy under \xc2\xa7 3 and the freedom of\nspeech and of the press guaranteed by Article I, \xc2\xa7 2 of the Virgin\nIslands constitution and the First Amendment to the Constitution of the\nUnited States.8 C f, New York Times v. Sullivan, 376 U.S. 254 (1964).\n3. Article I, \xc2\xa7 4: Right to Know\nThis section would authorize any person to examine any public\ndocument and observe the deliberations of any agency of the govern\xc2\xad\nment subject to reasonable limitations, as may be provided by law. It is\nnot clear whether the term \xe2\x80\x9c reasonable limitation as may be provided\nby law\xe2\x80\x9d refers only to statutory limitations to be enacted in the future\nor whether it includes existing statutory and common law restrictions\non the access to documents and deliberations. If the former interpreta\xc2\xad\ntion is the correct one, all public documents, including classified docu\xc2\xad\nments, and all deliberations of governmental bodies, including courts,\ngrand juries, and petit juries, would be open to the public pending the\nenactment of the pertinent legislation. Considering the controversial\nnature of the subject matter, the adoption of such legislation may take\nsome time. And even then there may be complex litigation as to\nwhether the statutory limitations are reasonable.\n4. Article I, \xc2\xa7 5: Searches and Seizures\nThe third sentence, which prohibits the interception of communica\xc2\xad\ntions unless authorized by warrant, would in its breadth appear to\nrequire the use of warrants even for the one-party consensual intercep\xc2\xad\ntion of communications. In view of the preemption of this field by\nchapter 119 of Title 18, United States Code, this section is plainly\nlimited to prosecutions under local law and should not affect federal\nprosecutions.\n\n* T h e Bill o f R ights for the V irgin Islands em bodied in its O rganic A ct expressly extends the First\nA m endm ent to th e C onstitution o f the U nited States to the V irgin Islands w ith \xe2\x80\x9c the same force and\neffect there as in the U nited States o r in any State o f the U nited S tates." 48 U.S.C. \xc2\xa7 1561.\n\n762\n\n\x0c5. Article I, \xc2\xa7 10(e): Child Labor\nThis subsection prohibits child labor in certain instances but does not\ndefine the term \xe2\x80\x9cchild\xe2\x80\x9d by reference to age.\n6. Article I, \xc2\xa7 15: Implementation o f Rights\nThe second sentence gives the Senate the power to provide by law\nfor the implementation and enforcement of this article. This sentence\nraises doubts whether and to what extent the provisions of the Bill of\nRights are self-executing, and whether they require statutory implemen\xc2\xad\ntation in order to become effective. This point should be clarified.\n7. Article IX, \xc2\xa7 1(b): Free Education\nThe third sentence of this subsection provides that public elementary\nand secondary education shall be \xe2\x80\x9cessentially\xe2\x80\x9d free. The word \xe2\x80\x9cessen\xc2\xad\ntially\xe2\x80\x9d is undefined and may well become the source of needless and\ntime-consuming litigation.\n8. Article X, \xc2\xa7 7: Right to a Healthful Environment\nAccording to this section, every person has the right to a healthful\nenvironment subject to reasonable limitations, as provided by law. This\nright may be enforced \xe2\x80\x9cagainst any party subject to reasonable limita\xc2\xad\ntions as may be provided by law.\xe2\x80\x9d The effect of this broad provision is\nto confer constitutional dimensions to the law of nuisances and to invite\nlitigation to determine whether statutory limitations on this constitu\xc2\xad\ntional right are or are not reasonable.9\nIII. Citizenship\n\nArticle III, \xc2\xa7 1 of the constitution defines the term \xe2\x80\x9cVirgin Islander\xe2\x80\x9d\nas a person born in the Virgin Islands or a descendant of at least one\nparent who was born in the Virgin Islands. The term Virgin Islander\ndoes not appear anywhere else in the constitution; therefore, its inclu\xc2\xad\nsion would not appear to have any legal consequences. On the other\nhand, its presence could encourage the enactment of discriminatory\nlegislation favoring Virgin Islanders.\nSection 2, Article III defines, the term \xe2\x80\x9ccitizens of the Virgin Is\xc2\xad\nlands.\xe2\x80\x9d We must comment adversely on this section because the defini\xc2\xad\ntion of that term is preempted by federal law and because \xc2\xa7 2 is in\nconflict with that law.\n9W c have been advised that this section is based on A rticle XI o f the Illinois C onstitution o f 1970.\nT here has been a substantia] am ount o f litigation involving that article, but in the time available w e\nhave been unable to assess the possible implications o f that litigation in the context o f the V irgin\nIslands constitution assuming, arguendo, that the Virgin Islands\' courts w ould interpret this provision\nin a w ay similar to the interpretation given by the Illinois courts to their provision.\n\n763\n\n\x0cThe first sentence of the first section of the Fourteenth Amendment\nprovides that \xe2\x80\x9call persons born or naturalized in the United States, and\nsubject to the jurisdiction thereof, are citizens of the United States and\nthe State in which they reside.\xe2\x80\x9d Concededly, the direct applicability of\nthe Fourteenth Amendment to the territories has not been settled as\nyet. See, e.g.. District o f Columbia v. Carter, 409 U.S. 418, 423 (1973);\nExamining Board v. Flores de Otero, 426 U.S. 572, 601 (1976); Torres v.\nPuerto Rico, 442 U.S. 465, 469-71 (1979).10 However, the Bill of Rights\nof the Virgin Islands contained in the Organic Act specifically extends\nto the Virgin Islands the Privileges and Immunities Clause of the\nsecond sentence of \xc2\xa7 1 of the Fourteenth Amendment with \xe2\x80\x9cthe same\nforce and effect there as in the United States or any State of the United\nStates.\xe2\x80\x9d 48 U.S.C. \xc2\xa7 1561. One of the privileges and the immunities of a\ncitizen of the United States is the privilege to be a citizen of the State\nin which he establishes his residence. The Slaughter-House Cases, 83\nU.S. (16 Wall.) 36, 80 (1872). Citizenship in a state or a territory such\nas the Virgin Islands to which the Privileges and Immunities Clause of\nthe Fourteenth Amendment extends accordingly is preempted by fed\xc2\xad\neral law and exists without reference to or interference by state consti\xc2\xad\ntutions or laws. United States v. Hall, 26 Fed. Cas. 79, 81 (C.C.S.D.\nAla. 1871) No. 15,282. As the court held in the Slaughter-House Cases,\nsupra, at 95, \xe2\x80\x9c[a] citizen of a State is now only a citizen of the United\nStates residing in that State.\xe2\x80\x9d\nMoreover, \xc2\xa7 2 of Article III is inconsistent with the Citizenship\nClause of the Fourteenth Amendment. That clause has been interpreted\nas follows:\n1.\n\nOnly a citizen of the United States can be a citizen of a\nState or Territory. The Slaughter-House Cases, supra, at 95;\nUnited States v. Hall, supra, at 81; Colgate v. Harvey, 296\nU.S. 404, 427 n.3 (1935); Sharon v. Hill, 26 F. 337, 343\n(C.C.D. Cal. 1885); Factor v. Pennington Press, Inc., 230 F.\nSupp. 906, 909 (N.D. 111. 1963);\n2. A citizen of the United States becomes a citizen of the State\nor Territory in which he resides immediately upon the estab\xc2\xad\nlishment of his residence therein. Morris v. Gilmer, 129 U.S.\n315, 328 (1889); Paudler v. Paudler, 185 F.2d 901, 902 (5th\nCir. 1950), cert, denied, 341 U.S. 920 (1951); and\n3. A citizen of a State or Territory loses his citizenship therein\nwhen he establishes another residence. Paudler v. Paudler,\nsupra, 185 F.2d at 902 and authorities cited therein.\nSection 2 is inconsistent with those federally established rules of state\ncitizenship. Section 2(a) would provide that all persons born in the\n10\ncases.\n\nW e note that the D epartm ent o f Justice did not participate as a party or amicus curiae in these\n\n764\n\n\x0cVirgin Islands and subject to its jurisdiction are citizens thereof. It does\nnot comply with the federal requirement that citizenship in a State or\nTerritory is contingent on U.S. citizenship 11 and on residence in the\nTerritory.\nSection 2(b) would provide that citizens of the United States who\nwere born outside the Virgin Islands become citizens of the Virgin\nIslands only after they have been domiciled there for at least one year.\nThis is inconsistent with the federal constitutional requirement that a\ncitizen of the United States becomes the citizen of a State or Territory\nimmediately upon the establishment of his residence therein.12 The oneyear residence requirement for the acquisition of Virgin Islands\xe2\x80\x99 citizen\xc2\xad\nship is of particular importance in view of Article IV, \xc2\xa7 1 of the\nconstitution, pursuant to which the right to vote is conditioned on\nVirgin Islands\xe2\x80\x99 citizenship. The combination of Articles III, \xc2\xa7 2(b) and\nIV, \xc2\xa7 1 thus has the practical effect of subjecting the right to vote in\nthe Virgin Islands to a one-year durational residence requirement. The\nSupreme Court has found such a requirement to be unconstitutional.\nDunn v. Blumstein, 405 U.S. 330 (1972).\nSection 2(c) would in effect provide Virgin Islands\xe2\x80\x99 citizenship to all\nthose who are United States citizens pursuant to \xc2\xa7 306(a)(1) of the\nImmigration and Nationality Act, 8 U.S.C. \xc2\xa7 1406(a)(1). The subsection\nfails to recognize that Virgin Islands\xe2\x80\x99 citizenship is conditioned on\nresidence in the Virgin Islands.\nSection 2(d) would provide for Virgin Islands\xe2\x80\x99 Citizenship contingent\nupon the enactment of appropriate federal legislation, presumably legis\xc2\xad\nlation granting United States citizenship to certain persons born in the\nVirgin Islands who resided outside the United States between January\n17, 1917 and June 28, 1932 (\xc2\xa7 306 of the Immigration and Nationality\nAct, 8 U.S.C. \xc2\xa7 1406). This subsection is defective because it does not\nlimit Virgin Islands\xe2\x80\x99 citizenship to those who reside in the Virgin\nIslands and does not require continued United States citizenship. F ur\xc2\xad\nthermore, this subsection would deny Virgin Islands\xe2\x80\x99 citizenship to\npersons who are citizens or subjects of another country, although they\nare citizens of the United States.\n\n11 Pursuant to \xc2\xa7 306 o f the Im m igration and N ationality A ct, 8 U.S.C. \xc2\xa7 1406, not all persons born\nin the V irgin Islands prior to February 25, 1927, are citizens o f the U nited States and some persons\nborn in the V irgin Islands as U nited States citizens may subsequently have lost that citizenship under\n\xc2\xa7 347 o f the Im m igration and N ationality A ct, 8 U.S.C. \xc2\xa7 1481.\n12 O ur attention has been directed to \xc2\xa7 5(a) o f the Puerto R ico Federal R elations A ct, 48 U.S.C.\n\xc2\xa7 733a, w hich imposes a one-year residence requirem ent on the acquisition o f Puerto Rican citizenship\nby citizens o f the U nited States. This provision was enacted by C ongress (A ct o f M arch 4, 1927, \xc2\xa7 2,\n44 Stat. 1418) and not by a T errito ry to w hich the Privileges and Immunities Clause o f the Fourteenth\nA m endm ent has been extended. W e express no opinion w h eth er C ongress could constitutionally\nimpose a one-year residence requirem ent in the V irgin Islands.\n\n765\n\n\x0cIV. Composition of the Senate\nArticle V, \xc2\xa7 2 provides that the Senate, the unicameral legislature of\nthe Virgin Islands, shall consist of fifteen members, that there shall be\nno more than four senators elected at-large, and that the legislative\ndistricts of St. Croix, St. John, and St. Thomas shall each be repre\xc2\xad\nsented. Since the number of inhabitants of St. John is much smaller\nthan that of the other two islands, the requirement that there shall be at\nleast one Senator from St. John potentially violates the one-man-onevote rule.13 W hether such a violation would ultimately occur would\nlikely turn on specific facts in existence at that time. The one-man-onevote rule does not require absolute equality. It permits some deviations\ndesigned to recognize the integrity of political subdivisions, or the\nrecognition of natural or historical boundary lines. See, e.g., Reynolds v.\nSims, 377 U.S. 533, 574-75, 579-81 (1964); Swann v. Adams, 385 U.S.\n440, 444 (1967). See also S. Rep. No. 433, 94th Cong., 1st Sess. 69\n(1975) (discussing with approval a similar departure from the one-manone-vote rule in \xc2\xa7 203(c) of the Covenant with Northern Mariana Is\xc2\xad\nlands, Pub. L. No. 94-241, 90 Stat. 265, 48 U.S.C. \xc2\xa7 1681 note).\nArticle V does not establish a term for the senators and does not\nprovide that their terms are to be determined by statute.\nV. Residence Requirement for the Governor and Lieutenant Governor\nArticle VI, \xc2\xa7 3(e) of the constitution provides that the governor and\nlieutenant governor must have been domiciled in the Virgin Islands for\nfifteen years, five of which must immediately precede the date of taking\noffice. This provision exceeds by one year the residency requirement\nfor the President of the United States (U.S. Const. Art. II, \xc2\xa7 1, cl.. 4)\nand by one-half the longest existing residence requirement for state\ngovernors.14\nThe validity of this provision is questionable. The Supreme Court has\nheld that candidates for public office \xe2\x80\x9cdo have a federal constitutional\nright to be considered for public service without the burden of invidi\xc2\xad\nously discriminatory disqualifications.\xe2\x80\x9d Turner v. Fouche, 396 U.S. 346,\n362 (1970); Bullock v. Carter, 405 U.S. 134, 142-44 (1972). In Illinois\nElection Board v. Socialist Workers Party, 440 U.S. 173, 185 (1979), the\nCourt pointed out that where the access to the ballot is concerned 15\n13 W e are not aw are o f any reported case specifically applying the one-m an-one-vote rule to the\nT erritories. T h e V irgin Islands\' Bill o f Rights, how ever, specifically extends the Equal Protection\nC lause o f the Fou rteen th A m endm ent to the V irgin Islands to have the same force and effect there as\nin a State. 48 U.S.C. \xc2\xa7 1561.\n14 A ccording to Chimento v. Stark, 353 F. Supp. 1211, 1217 (D .N .H . 1973), a ffd 414 U.S. 802\n(1973), in 1973, 43 states had residence o r citizenship requirem ents for the office of governor: ranging\nfrom ten years (Louisiana, M issouri, and O klahom a) to one year (M innesota).\n16 Bullock v. Carter, supra, at 142-43, explained that in the area o f placing burdensom e limitations\non the qualification o f candidates, \xe2\x80\x9c the rights o f voters and the rights o f candidates d o not lend\nthem selves to neat separation; law s that affect candidates alw ays have at least some theoretical,\nco rrelativ e effect on v oters.\xe2\x80\x99*\n\n766\n\n\x0cthe State, even where it seeks to protect a legitimate interest, has to\nadopt the least drastic means to achieve that end.\nThe Supreme Court has not as yet passed on durational residence\nrequirements for the holding of office. It has summarily affirmed three\ndecisions which upheld five- to seven-year residence requirements for\nthe offices of state senator and state governor. Chimento v. Stark, supra,\n(seven years; state governor); Kanapaux v. Ellisor (D.S.C. unreported),\na ffd 419 U.S. 891 (1974) (five years; state governor); Sununu v. Stark,\n383 F. Supp. 1287 (D.N.H. 1974), a ffd 420 U.S. 958 (1975) (seven\nyears; state senator).\nThe official analysis of the constitution gives the following reasons\nfor the fifteen-year residence requirement:\nWhile this domiciliary requirement is longer than that for\nsimilar offices in the States of the Union, it is intended to\ninsure to the greatest extent possible familiarity with the\nparticular problems of the Virgin Islands. Such familiarity\nis not as easily acquired as it might be in the continental\nUnited States, among other reasons, due to the Virgin\nIslands\xe2\x80\x99 status as an unincorporated territory of the United\nStates and to its geographical, historic, social, economic\nposition and unique culture as a group of small islands in\nthe Eastern Caribbean.\nIn Chimento, supra, the district court similarly justified the seven-year\nresidency requirement for the Governor of New Hampshire by refer\xc2\xad\nence to the need of that officer to be familiar with and exposed to the\nconditions, problems, and needs of the State and the various require\xc2\xad\nments of its population. The court, however, conceded that the sevenyear requirement \xe2\x80\x9cmay approach the constitutional limit.\xe2\x80\x9d 353 F. Supp.\nat 1217. It may be significant, at least under the Chimento court\xe2\x80\x99s\nanalysis, that in 1972, New Hampshire had nearly 780,000 inhabitants\nand covered a land area of 9,033 square miles, id. at 1215 n.8, while\naccording to the 1970 census, the Virgin Islands had 62,000 inhabitants\nand covered 133 square miles.\nOn the other hand, there are several instances in which federal courts\nhave struck down residence requirements for state or local officials.\nThus, the Eighth Circuit, in Antonio v. Kirkpatrick, 579 F.2d 1147, 1151\n(8th Cir. 1978), held that a ten-year residency requirement for the office\nof State Auditor for the State of Missouri constituted a denial of equal\nprotection and did not bear a rational relationship to a legitimate state\nend. The district court, in Billington v. Hayduk, 439 F. Supp. 975, 979\n(S.D.N.Y.), a ffd on other grounds, 565 F.2d 824 (2d Cir. 1977), invali\xc2\xad\ndated \xe2\x80\x9cas impermissible under the Equal Protection Clause\xe2\x80\x9d a five-year\nresidence requirement for the office of County Executive for W\'estchester County, New York. According to the 1970 census, that county\nhad 984,000 inhabitants and covered 443 square miles. The district\n767\n\n\x0ccourt, in Alexander v. Kammer, 363 F. Supp. 324 (E.D. Mich. 1973),\nheld that a five-year residence requirement for the Office of City\nCommissioner of the City of Pontiac, the population of which is similar\nto that of the Virgin Islands, was not supported by a compelling\ngovernmental interest. And in Brill v. Carter, 455 F. Supp. 172 (D. Md.\n1978), the district court held unconstitutional a four-year residence\nrequirement for the office of councilman for Anne Arundel County\n(300,000 inhabitants, 423 square miles).16\nThe argument supporting the fifteen-year requirement would be that\nthe responsibilities of the G overnor\xe2\x80\x94even of a small Territory\xe2\x80\x94differ\nsubstantially from those of the head of a county\xe2\x80\x94even of a large one\xe2\x80\x94\nand that the conditions in the Virgin Islands are quite different from\nthose that prevail on the mainland. These considerations would support\nan extended durational residence requirement if the latter is based, as is\nassumed in many cases on the need of the prospective official to\nacquaint himself with the problems of the area and its inhabitants and\nto have extended exposure to the electorate. These points, however, are\ncounterbalanced, at least in part, by the small size of the Virgin Islands\nand its population. We therefore believe there is every reason to ques\xc2\xad\ntion whether the courts will uphold a residence requirement that is\nmore than twice as long as the New Hampshire seven-year period,\nwhich the Chimento court, supra, had characterized as probably\n\xe2\x80\x9capproaching] the constitutional limit.\xe2\x80\x9d\nOn the other hand, we do not believe that the various five-year\nresidence requirements provided for in the constitution should give rise\nto serious constitutional problems. See, e.g., Article V, \xc2\xa74(e) (senator);\nArticle VII, \xc2\xa76(b) (judge); Article XI, \xc2\xa74(b) (auditor general).\nVI. Judicial Branch\n\nArticle VII, \xc2\xa7\xc2\xa7 1 & 2 of the constitution provide for an appellate\ncourt. This provision is in conflict with \xc2\xa7 2(b)(6) of the Enabling Act,\npursuant to which the \xe2\x80\x9csystem of local courts provided for in the\nconstitution must be consistent with the Revised Organic Act of the\nVirgin Islands.\xe2\x80\x9d The pertinent provisions of the Revised Organic Act,\n\xc2\xa7\xc2\xa722 & 23, 48 U.S.C. \xc2\xa7\xc2\xa7 1612, 1613 do not provide for a local appellate\ncourt; appeals from the local courts go to the federal district court.\nArticle VII, \xc2\xa7 2 contains defects in addition to its being inconsistent\nwith the Enabling Act. The last sentence provides that appeals from\ndecisions of the appellate court on federal questions will go to the\nUnited States Court of Appeals for the Third Circuit unless Congress\nprovides otherwise. The United States courts of appeals, however, are\npurely statutory courts and have only such jurisdiction as is conferred\non them by Congress. See, e.g., Gialde v. Time, Inc., 480 F.2d 1295,\n16 T h e opinion contains an analysis o f m any pertinent decisions. 455 F. Supp.. at 175.\n\n768\n\n\x0c1298 (8th Cir. 1973). A territorial constitution therefore cannot confer\nappellate jurisdiction on a United States court of appeals. Consequently,\nthere would be no federal forum for the review of decisions of the\nappellate court involving federal questions. This raises a problem simi\xc2\xad\nlar to that involved in Guam v. Olsen , 431 U.S. 195, 201-04 (1977). The\nSupreme Court held in Guam that in the absence of a \xe2\x80\x9cclear signal\nfrom Congress,\xe2\x80\x9d a Territory cannot establish a court if its decisions\ninvolving federal questions are not reviewable by a court established\nunder Article III of the Constitution.17 Hence, even if \xc2\xa7 2(b)(6) of the\nEnabling Act had not prohibited the establishment of an appellate\ncourt, the Virgin Islands still could not create such a court in the\nabsence of federal legislation providing for the review of its decisions\ninvolving federal questions in an Article III court.18\nThe judicial provisions of the constitution raise an additional prob\xc2\xad\nlem. Section 5 of the Transitional Schedule would establish an interim\nappellate court consisting of the two district judges for the Virgin\nIslands and a chief judge appointed pursuant to the provisions of the\nconstitution. According to the constitution, the appellate court would\nhave several not strictly judicial functions, such as to promulgate re\xc2\xad\napportionment plans (Article V, \xc2\xa7 3(b)), to sit as a court of impeach\xc2\xad\nment (Article V, \xc2\xa7 12), and to determine questions involving the disabil\xc2\xad\nity of the Governor and Lieutenant Governor (Article VI, \xc2\xa7 9(b)).\nSince territorial judges are not Article III judges, they could be vested\nwith nonjudicial functions. Nevertheless, the involvement of federal\njudges in those delicate local political issues may become a source of\nembarrassment. Moreover, since the appellate court would act as an\nadministrative body in those situations, its decision could conceivably\nbe subject to judicial review in the federal district court, composed of\nthe same judges who handed down the decision in their capacity as\nmembers o f a territorial judicial body performing nonjudicial functions.\nArticle VII, \xc2\xa7 4 establishes a commission to deal with judicial mis\xc2\xad\nconduct and disability. In view of its serious impact on judicial inde\xc2\xad\npendence, this section should have been drawn with greater precision.\nIt lacks provisions for the selection of the commission and for the\nqualification of its members, as well as any standards for the discipline,\ncensure, suspension, removal, and compulsory retirement of judges. The\nsection provides for the \xe2\x80\x9cappeal\xe2\x80\x9d of decisions of the judicial commis\xc2\xad\n17 Indeed, (he C ourt indicated that constitutional issues might be presented if C ongress sought to\ndeny litigants in a local territorial court access to an A rticle III court for (he apppellate review of\nlocal-court decisions. 431 U.S. at 204.\n18 T h e second sentence o f A rticle V II, \xc2\xa7 2 provides that the decisions o f the appellate c ourt on nonfederal questions shall be final, unless federal law provides for their review by the Suprem e C ourt of\nthe United States. In o u r view, it is up to C ongress to determ ine w hich federal court, if any, shall\nreview cases decided by the Virgin Islands appellate court w hich d o not involve federal questions. If\nCongress should decide that there should be such review , it w ould generally be m ore appropriate that\nit be had, at least initially and as a m atter o f right, in the court o f appeals rather than in the Suprem e\nC ourt.\n\n769\n\n\x0csion. In case of actions taken by the commission against appellate\njudges, recusations may result in a lack of quorum in the appellate\ncourt, or require under the necessity doctrine the participation of\njudges who ordinarily would have to disqualify themselves in view of\ntheir connection or involvement with the subject matter of the appeal.\nThis problem, however, is inherent in judicial discipline proceedings\nand not confined to the Virgin Islands. The implementing legislation\ncould provide for the temporary assignment to the appellate court of\ntrial court judges to sit in lieu of disqualified appellate judges.\nVII. Tax Administration and Tax Exemption of Territorial Bonds\nArticle XI, \xc2\xa7 2 provides that:\nLaws shall be enacted to administer and enforce the\nincome tax and the federal tax laws applicable to the\nVirgin Islands.\nThis section must be read in the context of \xc2\xa7 2(b)(1) and (4) of the\nEnabling Act, which limits the constitution to subject matters relating\nto local self-goverment.\nThe Virgin Islands presently operates under a so-called \xe2\x80\x9cmirror\nsystem\xe2\x80\x9d of taxation with the Internal Revenue Code administered and\nenforced by the Virgin Islands as a territorial income tax. Act of\nJuly 12, 1921, \xc2\xa7 1, 42 Stat. 123 (48 U.S.C. 1397). Dudley v. Commis\xc2\xad\nsioner o f Internal Revenue, 258 F.2d 182 (3d Cir. 1958). Under the\npresent law a constitutional provision to enact territorial laws to admin\xc2\xad\nister and enforce this territorial income tax would not be objectionable.\nThere are, however, indications that the income tax will be \xe2\x80\x9cfederal\xc2\xad\nized\xe2\x80\x9d in the Virgin Islands. President Carter proposed in his Message\non Federal Territorial Policy of February 14, 1980, Pub. Papers of\nJimmy Carter 317, 322 (1980), that legislation be enacted making the\nInternal Revenue Code directly applicable to the territories for income\ntax purposes and providing that the Internal Revenue Service, rather\nthan the territories, be responsible for its administration and enforce\xc2\xad\nment. The Department of the Treasury has drafted a proposed Territo\xc2\xad\nrial Tax Act to implement the presidential message which is presently\nunder consideration by the Office of Management and Budget. Legisla\xc2\xad\ntion to that effect has been introduced in Congressmen S. 2017, 96th\nCong., 1st Sess. (1979). We have also been advised that a pertinent\nprovision may be inserted in the current Territorial Omnibus Bill now\npending in the House of Representatives. Should this legislation be\nenacted, the income tax laws would cease to be a matter of selfgovernment in the Virgin Islands and the reference in this section to\nthe income tax laws would become inconsistent with the Enabling Act.\nTo the extent that Article XI, \xc2\xa7 2 would provide for the enactment\nof legislation to administer and enforce \xe2\x80\x9cthe federal tax laws applicable\n770\n\n\x0cto the Virgin Islands,\xe2\x80\x9d the section deals with a subject matter which\ndoes not relate to self-government; consequently it violates the terms of\nthe Enabling Act.\nThe second paragraph of Article XI, \xc2\xa7 3 would exempt the bond\nissues of the Virgin Islands, and specifically the interest thereon, from\ntaxation by the Federal Government, any State, Territory, or the Dis\xc2\xad\ntrict of Columbia. The exemption of the bond issues of the Virgin\nIslands from taxes imposed by the Federal Government or the States,\nTerritories, or the District of Columbia clearly is not a matter of\nlocal self-government and therefore not authorized by the Enabling\nAct. (See \xc2\xa7\xc2\xa7 2(b)(1),(d)). Only Congress can grant such tax exemption.\nVIII. Continuation of Laws\n\nSection 3 of the Transitional Schedule provides:\nLaws, executive orders, and regulations . . . that are in\xc2\xad\nconsistent with this Constitution shall be void to the\nextent of such inconsistency.\nThis sentence does not in terms limit its scope to laws, executive\norders, and regulations relating to matters of local self-government. It\nwould be unauthorized if it purported to apply to matters over which\nthe Federal Government retained jurisdiction. The draft official analysis\nof the constitution 19 states that this section does not cover laws,\nexecutive orders, or regulations that are beyond the authority of the\nVirgin Islands, such as federal laws. The need to rely on the legislative\nhistory to ascertain the scope of a constitutional clause, however, is an\nundesirable drafting technique, especially in light of the frequently\nadhered to canon of statutory construction which prohibits the use of\ninterpretative materials where a text appears to be unambiguous on its\nface.\nIX. Summary and Effect of the \xe2\x80\x9cDeemed\xe2\x80\x9d Approval of the Constitution\n\nIn summary, the constitution does not expressly comply with the\nrequirements of the Enabling Act to recognize the sovereignty of the\nUnited States and the supremacy of its Constitution and laws. More\xc2\xad\nover, it raises the following substantial legal issues: (1) questions regard\xc2\xad\ning Virgin Islands\xe2\x80\x99 citizenship; (2) the durational residence requirements\nfor the Governor and Lieutenant Governor; (3) the appellate court; and\n(4) the fiscal provisions. In addition, some of its provisions are drawn\nso loosely as to invite vexatious and possibly paralyzing litigation. In\nthis category are the provisions guaranteeing the inviolability of the\ndignity of the human being, the absolute right of privacy, and the right\nto a healthful environment.\n19 See note 2, supra.\n\n771\n\n\x0cIn 1978, Congress did not take any action on the constitutions drafted\nby the constitutional conventions of Guam and the Virgin Islands\nwithin the 60-day period provided for in \xc2\xa7 5 of the Enabling Act. The\ntwo constitutions accordingly were submitted to the voters of Guam\nand the Virgin Islands, respectively, and both of them were defeated.\nIn view of the possibility that Congress again will fail to pass a joint\nresolution modifying the previously mentioned legal defects of the\nconstitution, it appears appropriate to consider the legal consequences\nof the \xe2\x80\x9cdeemed\xe2\x80\x9d approval of the constitution resulting from congres\xc2\xad\nsional failure to act.\nBasically, Congress can take legal action only in the manner pro\xc2\xad\nvided for in Article I, \xc2\xa7 7 of the Constitution, i.e., by the concurrence\nof both Houses to a bill or resolution and its presentation to the\nPresident. Inaction of Congress therefore cannot have any legal effect,\nexcept as, in this case, as the occurrence of a condition which permits\nthe submission of the constitution to the qualified electors of the Virgin\nIslands. Taking this view, the inaction of Congress would not have any\ncurative effect on the defects of the constitution.\nThe result, however, would be no different if it were assumed\narguendo that the omission of Congress to object to the failure of the\nconstitution to comply with the requirements of the Enabling Act has\nthe effect of waiving that noncompliance. Any such waiver would\nlogically be limited to the provisions of the Enabling Act itself. It could\nnot override constitutional requirements such as those involved in the\nissues relating to the Virgin Islands\xe2\x80\x99 citizenship arid the durational\nresidence requirements of the Governor or Lieutenant Governor. Simi\xc2\xad\nlarly, such waiver could not override other existing statutes or serve as\na substitute for the enactment of a statute. Thus, in connection with the\nappellate court issue, it could possibly be argued that the \xe2\x80\x9cdeemed\xe2\x80\x9d\napproval of the constitution overcomes the requirement of the Enabling\nAct that the court system be consistent with the existing one, hence,\nthat the constitution could provide for an appellate court. The supposed\nwaiver, however, could not have the effect of granting a federal appel\xc2\xad\nlate court jurisdiction to review the decisions of the Virgin Islands\xe2\x80\x99\nappellate court. That can be done only by positive legislation. Again,\nthe supposed waiver could not override or modify the existing statutes\nproviding for the administration of federal tax laws by federal agencies,\nor take the place of a statute granting Virgin Islands bonds exemption\nfrom federal or state taxation.\nA lan A . P arker\n\nAssistant Attorney General\nOffice o f Legislative Affairs\n\n772\n\n\x0c'


b'Constitutionality of State Procedural Reform Provision\nin Superfund Legislation\nA bill reauthorizing the Comprehensive Environmental Response, Compensation, and Liability\nA ct o f 1980 contains a section that provides for a uniform federal commencement date for the\nrunning o f state statutes of limitations in toxic tort actions. By operation o f this provision,\nsome actions previously time-barred under existing state law would be revived.\nU nder current case law, the bill would not be struck down as beyond the constitutional power of\nCongress. Although the effort to dictate the content o f state law is inconsistent with wellestablished provisions o f federalism, it cannot be said that this effort violates the Tenth\nA m endm ent as explained by the Supreme Court in Garcia v. San Antonio Metropolitan\nTransit Authority, 469 U.S. 528 (1985).\nThe retroactive aspects o f the bill m ay be challenged as a denial o f property without due process\nof law or as a taking of property w ithout ju st compensation. A due process challenge would\npresent difficult questions due to the existence o f tw o lines o f Supreme Court authority in\napparent tension, and the bill may well be held to violate the Due Process Clause. The revival\no f a tim e-barred action probably would not constitute a taking under the ad hoc regulatory\ntakings inquiry established by the Supreme Court.\n\nApril 1, 1986\nM\n\nem orandum\n\nO p in io n\n\nfor th e\n\nD epu ty A\n\ns s is t a n t\n\nA ttorney G eneral,\n\nC iv il D iv is io n\n\nIn a letter of December 19, 1985, you requested the views of this Office on\nthe constitutionality of certain provisions in H.R. 2817, prescribing a uniform,\nretroactive federal commencement date for the running of statutes of limita\xc2\xad\ntions in state tort actions arising from exposure to toxic substances (toxic torts).\nAlthough the invasion of the powers of the states proposed by this bill raises\nserious concerns, we cannot say that the bill would be struck down as beyond\nthe constitutional powers of Congress. We believe, however, that the retroac\xc2\xad\ntive aspects of the bill may be held to violate the Due Process Clause in certain\ninstances, although they would likely survive a challenge under the Takings\nClause. Finally, we think that, even if constitutional, the bill might have the\nuntoward result of inducing some state courts to invalidate entire state causes\nof action for toxic torts.\nH.R. 2817, the House bill reauthorizing the Comprehensive Environmental\nResponse, Compensation, and Liability Act of 1980, Pub. L. No. 96-510, 94\nStat. 2767 (codified at scattered sections of titles 26, 33,42 & 49 of the United\nStates Code) (Superfund), contains a section on \xe2\x80\x9cState Procedural Reform,\xe2\x80\x9d\n32\n\n\x0cwhich provides a uniform federal commencement date for the running of state\nstatutes of limitations in toxic tort actions. The federal commencement date\napplies to \xe2\x80\x9cany action brought under State law\xe2\x80\x9d for injury resulting from\nexposure to toxic substances; this federal commencement date presumably\napplies to both statutory and common law actions. No new federal cause of\naction is created. The bill would make the new commencement date applicable\nto actions brought after December 11,1980, thereby retroactively \xe2\x80\x9creviving\xe2\x80\x9d at\nleast some actions that are time-barred under existing state statutes of limita\xc2\xad\ntions.\n1. Tenth Amendment. The initial question is whether congressional alteration\nof state statutes of limitations, other than through creation of a preemptive\nfederal cause of action, is consistent with the constitutional structure of dual\nsovereignty. We find the question troubling. Although Congress may of course\npreempt state law in areas of legitimate federal constitutional authority, any\neffort by the federal government to dictate the content of state law (as this bill\ncontemplates) would do gross violence to our federal system. Nevertheless, we\ncannot say that this novel provision would be held to violate the Tenth Amend\xc2\xad\nment under the standards for constitutional federalism set forth in Garcia v.\nSan Antonio Metropolitan Transit Authority , 469 U.S. 528 (1985). The Su\xc2\xad\npreme Court in Garcia overruled its earlier decision in National League o f\nCities v. Usery, 426 U.S. 833 (1976), which had determined that the federal\ngovernment\xe2\x80\x99s Commerce Clause powers were constrained by the Tenth Amend\xc2\xad\nment \xe2\x80\x9cin areas of traditional governmental functions.\xe2\x80\x9d Id. at 852. Garcia\nrejected the distinction between traditional and nontraditional governmental\nfunctions as untenable, see 469 U.S. at 539-49, and concluded that limitations\non congressional power to regulate the states were to be left primarily to the\npolitical process. See id. at 549-55. To be sure, the Court held open the\npossibility that certain extreme cases might invite judicial scrutiny. See id. at\n556-57. But H.R. 2817 would have presented a difficult question even under\npre-Garcia law. See FERC v. Mississippi, 456 U.S. 742, 764\xe2\x80\x9471 (1982).\n2. Retroactivity and Due Process. The proposal to apply the new statute of\nlimitations retroactively to revive previously barred actions raises serious\nconstitutional questions, the chief of which is whether revival of time-barred\nactions is an unconstitutional deprivation of the property of defendants without\ndue process of law.\nThe principal decision suggesting that revival of actions might violate the\nConstitution is William Danzer & Co. v. G ulf & Ship Island R.R. Co., 268 U.S.\n633 (1925). Following the First World War, a statute was passed providing that\nthe period of wartime federal control of railroads was not to be counted in\ndetermining whether actions under the Interstate Commerce Act were brought\nwithin that Act\xe2\x80\x99s statute of limitations. The reparations suit by the plaintiff\nshippers in Danzer was brought subsequent to this new statute, but the time\nlimit on the action under the old statute of limitations had expired before the\npost war enactment. If the wartime period was excluded from the computation,\nthe action would have been timely. The Supreme Court held that it would\n33\n\n\x0cviolate the Fifth Amendment to apply the new limitations provision to revive\nan action that was already fully barred. Prior decisions had established \xe2\x80\x9cthat the\nlapse of time not only barred the remedy but also destroyed the liability of\ndefendant to plaintiff. On the expiration of the two-year [limitations] period, it\nwas as if liability had never existed.\xe2\x80\x9d 268 U.S. at 636 (emphasis added)\n(citations omitted). In such cases, where the limitations provision \xe2\x80\x9cconstitute[s]\na part of the definition of a cause of action created by the same or another\nprovision, and operate[s] as a limitation on liability,\xe2\x80\x9d id. at 637, retroactive\napplication of a change in the statute to revive liability \xe2\x80\x9cwould . . . deprive\ndefendant of its property without due process of law in contravention of the\nFifth Amendment.\xe2\x80\x9d Id.\nDanzer distinguished the Court\xe2\x80\x99s earlier opinion in Campbell v. Holt , 115\nU.S. 620 (1885), which had rejected the argument that the retroactive removal\nof a time-bar to a Texas contract action violated the Fourteenth Amendment.\nThe Campbell Court, while suggesting that there would be constitutional\nproblems with revival of an action to recover title to property that had vested\nwith the passage of time, see 115 U.S. at 623, found no such bar to revival of an\nexpired contract action, holding: \xe2\x80\x9cWe certainly do not understand that a right to\ndefeat a just debt by the statute of limitations is a vested right, so as to be\nbeyond legislative power in a proper case.\xe2\x80\x9d Id. at 628. See also id. at 629 (\xe2\x80\x9c[w]e\nare unable to see how a man can be said to have property in the bar of the\nstatute as a defence to his promise to pay\xe2\x80\x9d) (emphasis in original). The Danzer\nCourt found this case inapplicable since it \xe2\x80\x9crests on the conception that the\nobligation of the debtor to pay was not destroyed by lapse of time, and that the\nstatute of limitations related to the remedy only . . . .\xe2\x80\x9d 268 U.S. at 637. By\ncontrast, the Danzer Court concluded, the time limitation in the Interstate\nCommerce Act went to the existence of liability, freedom from which was held\nto be a vested property right that could not be infringed under the Fifth\nAmendment. See id.\nIn Chase Securities Corp. v. Donaldson, 325 U.S. 304 (1945), the Court\nupheld the constitutionality of retroactive application of a change in the statute\nof limitations for actions under Minnesota\xe2\x80\x99s Blue Sky laws. Danzer was\ndiscussed and distinguished in a footnote:\nIn the D anzer case it was held that where a statute in creating a\nliability also put a period to its existence, a retroactive extension\nof the period after its expiration amounted to a taking of prop\xc2\xad\nerty without due process of l a w. . . . But the situation here\nplainly does not parallel that in the Danzer case . . . . At the time\nthis action was commenced the Blue Sky Law of Minnesota had\nimposed on appellant a duty; it had not explicitly created a\nliability. The liability was implied by the state\xe2\x80\x99s common law;\nthe period of limitation was found only in the general statute of\nlimitations enacted many years earlier. The state court con\xc2\xad\ncluded that the challenged statute did not confer on appellees a\n34\n\n\x0cnew right or subject appellant to a new liability. It considered\nthat the effect of the legislation was merely to reinstate a lapsed\nremedy, that appellant had acquired no vested right to immunity\nfrom a remedy for its wrong in selling unregistered securities,\nand that reinstatement of the remedy by the state legislature did\nnot infringe any federal right under the Fourteenth Amendment,\nas expounded by this Court in Campbell v. Holt.\nId. at 312 n.8. Thus, the footnote in Chase Securities appears to retain the\n\xe2\x80\x9cright/remedy\xe2\x80\x9d distinction enunciated by Danzer: retroactive application of\n\nnew statutes of limitations is unconstitutional when it would revive liability,\nrather than merely revive a remedy for liability that was never extinguished,\nand in state causes of action one must look to state law to determine which is\nthe case.1\nThe Court\xe2\x80\x99s most recent discussion of Danzer is consistent with this analy\xc2\xad\nsis. In International Union o f Electrical, Radio & Machine Workers, AFL-CIO,\nLocal 790 v. Robbins & Myers, Inc., 429 U.S. 229 (1976), the Court upheld the\nretroactive application of a new statute of limitations for filing charges with the\nEqual Employment Opportunity Commission (EEOC), thus preserving a suit\nunder Title VII of the Civil Rights Act of 1964 that would otherwise have been\nbarred for failure to file with the EEOC in timely fashion. After concluding that\nthe new limitations period applied to the suit in question, the Court rejected the\ndefendant\xe2\x80\x99s constitutional challenge to its application:\nRespondent contends, finally, that Congress was without con\xc2\xad\nstitutional power to revive, by enactment, an action which, when\nfiled, is already barred by the running of a limitations period.\nThis contention rests on an unwarrantably broad reading of our\nopinion in [Danzer], Danzer was given a narrow reading in the\nlater case of Chase Securities Corp. v. Donaldson, 325 U.S.\n304, 312 n.8 (1945). The latter case states the applicable consti\xc2\xad\ntutional test in this language:\n\xe2\x80\x98T he Fourteenth Amendment does not make an act\nof state legislation void merely because it has some\nretrospective operation. What it does forbid is tak\xc2\xad\ning of life, liberty or property without due process of\nlaw . . . . Assuming that statutes of limitation, like\n1 \xe2\x80\x9cProperty interests . . . are not created by the C onstitution. Rather, they are created and their dim ensions\nare defined by existing rules or understandings that stem from an independent source such as state law .\xe2\x80\x9d\nBoard o f Regents v. Roth , 408 U.S. 5 6 4 ,5 7 7 (1972). The C ourt in Campbell does not appear to have consulted\nstate law in this fashion. Rather, it seems to have held generally that lim itations on contract actions go to the\nremedy, see 115 U.S. at 629, while the dissent took the contrary position, again as a general m atter. See id. at\n630-31 (B radley, J., dissenting). A possible reconciliation is found in the com m ent in Chase Securities that\nCampbell \xe2\x80\x9cadopted as a working hypothesis, as a m atter o f constitutional law, the view that statutes o f\nlim itation go to m atters o f remedy, not to destruction o f fundam ental rights.\xe2\x80\x9d 325 U.S. at 314 (em phasis\nadded). If a defendant proves that state law establishes that statutes o f lim itations protect \xe2\x80\x9cfundamental\nrights,\xe2\x80\x9d this presum ption, we assume, can be overcome.\n\n35\n\n\x0cother types of legislation, could be so manipulated\nthat their retroactive effects would offend the Con\xc2\xad\nstitution, certainly it cannot be said that lifting the\nbar of a statute of limitation so as to restore a rem\xc2\xad\nedy lost through mere lapse of time is per se an\noffense against the Fourteenth Amendment.\xe2\x80\x9d Id. at\n315-316.\nApplying that test to this litigation, we think that Congress\nmight constitutionally provide for retroactive application of the\nextended limitations period which it enacted.\n429 U.S. at 243-44 (omission in original).\nA plausible interpretation if this passage is that Congress did not intend the\nlimitations provisions in Title VII to condition the liability of defendants, and\nRobbins & M yers is thus a \xe2\x80\x9cremedy\xe2\x80\x9d case akin to Campbell and Chase Securi\xc2\xad\nties, rather than a \xe2\x80\x9cliability\xe2\x80\x9d case like Danzer? In view of its endorsement of\nChase Securities, the Court evidently meant to give Danzer a \xe2\x80\x9cnarrow reading\xe2\x80\x9d\nby limiting it to situations in which the statute of limitations is an essential part\nof the cause of action.\nOn this understanding of the law, H.R. 2817 presents serious problems. If,\nunder the law of a particular state, statutes of limitations are seen as condition\xc2\xad\ning liability with respect to any of the actions affected by the bill, then as to\nthose actions retroactive application of the new commencement date would be\nan unconstitutional deprivation of property without due process. Many states\nhave such rules. See generally 51 Am. Jur. 2d Limitation o f Actions \xc2\xa744\n(1970); 16A Am. Jur. 2d Constitutional Law \xc2\xa7\xc2\xa7 665-66 (1979). The conse\xc2\xad\nquence of this understanding o f the law is the unfortunate spectacle of a statute\nfully constitutional in some states, partly constitutional in others, and wholly\nunconstitutional in still others (those that guarantee the vesting of limitation\ndefenses).\nThere is, however, good reason to doubt whether this is an accurate state\xc2\xad\nment of the law. The Supreme Court has recently addressed the constitutional\npower of Congress to create liability retroactively, holding broadly that the\nlegislature has considerable leeway to impose liability for conduct that was\nlegal when performed. In Usery v. Turner Elkhom Mining Co., 428 U.S. 1\n(1976), the Court considered and rejected a constitutional challenge to a\ncongressional program for compensating victims of black lung disease. In\nparticular, the Court upheld the retroactive imposition of liability on mine\nowners for black lung disease contracted by mine workers who had left em\xc2\xad\nployment before enactment o f the compensation scheme. (The mine owners did\nnot object to compensating current employees for disease contracted in the\n2 But c f United States Trust Co. o f New York v. New Jersey. 43] U.S. J, 20 n .]7 (1977) (the rem edy/\nobligation distinction in Contract C lau se jurisprudence is \xe2\x80\x9c now largely an outdated form alism ," though it\n\xe2\x80\x9ca p p ro x im a te s] the result o f a more particularized inquiry into the legitim ate expectations o f the contracting\nparties\xe2\x80\x9d ).\n\n36\n\n\x0cpast.) The Court pronounced it \xe2\x80\x9cwell established that legislative Acts adjusting\nthe burdens and benefits of economic life come to the Court with a presumption\nof constitutionality, and that the burden is on one complaining of a due process\nviolation to establish that the legislature has acted in an arbitrary and irrational\nway.\xe2\x80\x9d 428 U.S. at 15. The Court noted that the statute \xe2\x80\x9chas some retrospective\neffect,\xe2\x80\x9d id. at 16, but countered that \xe2\x80\x9cour cases are clear that legislation\nreadjusting rights and burdens is not unlawful solely because it upsets other\xc2\xad\nwise settled expectations. This is true even though the effect of the legislation\nis to impose a new duty or liability based on past acts.\xe2\x80\x9d Id. (citations omitted).\nThe Court suggested that retrospective legislation might be subject to more\nheightened scrutiny than purely prospective acts and even intimated that it\nwould not uphold the black lung statute if its rationale was deterrence of\nundesirable conduct. Id. at 16-17. But it found \xe2\x80\x9cthat the imposition of liability\nfor the effects of disabilities bred in the past is justified as a rational measure to\nspread the costs of the employees\xe2\x80\x99 disabilities to those who have profited from\nthe fruits of their labor \xe2\x80\x94 the operators and the coal consumers.\xe2\x80\x9d Id. at 18.\nThe Court recently reaffirmed Turner Elkhom in Pension Benefit Guaranty\nCorp. v. R.A. Gray & Co., 467 U.S. 717 (1984), which upheld the retroactive\nimposition of liability on employers who withdrew from certain pension plans\nwithin five months prior to enactment of a statute imposing additional costs on\nwithdrawal from those plans. Relying on Turner Elkhom, the Court empha\xc2\xad\nsized that\nthe strong deference accorded legislation in the field of national\neconomic policy is no less applicable when that legislation is\napplied retroactively. Provided that the retroactive application\nof a statute is supported by a legitimate legislative purpose\nfurthered by rational means, judgments about the wisdom of\nsuch legislation remain within the exclusive province of the\nlegislative and executive branches . . . .\n467 U.S. at 729. The heightened burden that retroactive legislation must face\n\xe2\x80\x9cis met simply by showing that the retroactive application of the legislation is\nitself justified by a rational legislative purpose.\xe2\x80\x9d Id. See also United States\nTrust Co. o f New York v. New Jersey, 431 U.S. 1, 17 n.13 (1977) (\xe2\x80\x9c [t]he Due\nProcess Clause of the Fourteenth Amendment generally does not prohibit\nretrospective civil legislation, unless the consequences are particularly \xe2\x80\x98harsh\nand oppressive\xe2\x80\x99\xe2\x80\x9d (dictum ) (quoting Welch v. Henry, 305 U.S. 134, 147 (1938)).\nIf Congress created a new cause of action for toxic torts and imposed\nretroactive liability, the statute would surely survive constitutional attack under\nGray and Turner Elkhom. Indeed, the parallels between such hypothetical\nlegislation and the black lung statute upheld in Turner Elkhom are striking,\neven to the likely cost-spreading rationale. But if this is true, it is difficult to see\nwhy Congress should be able to impose retroactive liability directly by creating\na new cause of action, but not indirectly by extending backwards a statute of\nlimitations (or new commencement date). An argument can thus be made that\n37\n\n\x0cDanzer is no longer good law. Nonetheless, Turner Elkhom and Gray make no\nreference to D anzer or the other statute of limitations cases, nor do the latter\ncases refer generally to the former, even though Turner Elkhom had been\ndecided when Robbins & M yers , the most recent of the statute of limitations\ncases, was decided.\n3. Takings Clause. An additional constitutional question may be raised under\nthe Takings Clause of the Fifth Amendment. If liability is imposed retroac\xc2\xad\ntively on those who deal with toxic wastes in order to spread costs among the\ngeneral public, defendants may argue that their property (i.e., their freedom\nfrom liability by virtue of a state statute of limitations) is being taken for a\npublic purpose without just compensation. However, the bill would likely\nsurvive a Takings Clause challenge under the \xe2\x80\x9cad hoc, factual inquir[y],\xe2\x80\x9d Penn\nCentral Transportation Co. v. New York City, 438 U.S. 104, 124 (1978), used\nby the Supreme Court in regulatory takings cases. See, e.g., Connolly v.\nPension Benefit Guaranty Corp., 475 U.S. 211,223-28 (1986); Ruckelshaus v.\nMonsanto Co., 467 U.S. 986, 1004-08 (1984); PruneYard Shopping Center v.\nRobins, 447 U.S. 74, 82-83 (1980). This inquiry looks to such factors as \xe2\x80\x9cthe\ncharacter of the governmental action, its economic impact, and its interference\nwith reasonable investment backed expectations.\xe2\x80\x9d PruneYard Shopping Cen\xc2\xad\nter, 447 U.S. at 83. Because the government action contemplated by H.R. 2817\ndoes not physically appropriate property for the government\xe2\x80\x99s own use, see\nConnolly, 475 U.S. at 224-25, and is likely to have little, if any, impact on\n\xe2\x80\x9cinvestment backed expectations,\xe2\x80\x9d the revival of time-barred actions probably\ndoes not meet the standards for a regulatory taking.\n4. Other Issues. Quite apart from the question whether Congress has the\npower to create retroactive liability through extension of state statutes of\nlimitations, the bill raises a number of other issues. Because H.R. 2817 is not\ncreating a new cause of action, but is merely engrafting a provision onto\nexisting state actions, it is necessary to consider the effects this might have\nunder state law. As was noted above, a number of states guarantee the vesting\nof limitations defenses. Accordingly, it is conceivable that some state courts\nmay hold that state causes of action for toxic torts are not severable from the\nstatute of limitations under state law and that the effect of the federal law\npurporting to alter the state statute of limitations is to invalidate the state cause\nof action in toto .3\nPresent case law would not compel state courts to take jurisdiction over these\nactions instead of invalidating the state compensation scheme. The Supreme\nCourt held in Testa v. Katt, 330 U.S. 386 (1947), that state courts may not\n3 T h is raises the interesting question o f w hether such abrogation o f liability w ithout provision o f a\nreasonable substitute w ould violate the d u e process rights o f toxic tort victims. W e know of no definitive\nprecedent on this point, though a recent dictum o f the C ourt suggests that it would not. See Duke Power Co. v.\nCarolina Environmental Study Group, 4 3 8 U.S. 59, 88 & n.32 (1978). See also Silver v. Silver, 280 U.S. ! 17,\n122 (1929) (dictum). But see New York Central R.R. Co. v. White, 243 U .S. 188,201 (1917) (\xe2\x80\x9cit perhaps may\nb e doubted w hether the State could abolish all rights o f a ction [for personal injuries betw een em ployers and\nem ployees] on the one hand, o r all defen ses on the other, without setting up som ething adequate in their\nstead\xe2\x80\x9d ) (dictum).\n\n38\n\n\x0cdecline to take jurisdiction over a federal cause of action on the ground that it is\ncontrary to state policy. Here, however, no federal cause of action is at issue,\nand neither H.R. 2817 nor any existing federal statute requires a state to\nrecognize a state cause of action for toxic torts or precludes a state from\nrepealing any such existing cause of action.\nC harles\n\nJ.\n\nC o oper\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n39\n\n\x0c'


b"Authority of the D.C. Council Under the Home Rule Act to\nAmend the Schedule of Heights of Buildings\nT he Council o f the D istn ct o f C olum bia has the authonty, under section 602(a)(6) o f the Home Rule\nAct o f 1973, to am end the Schedule o f H eights o f Buildings A djacent to Public B uildings as\nlong as any am endm ent is w ithin the overall lim itations set forth in the B uilding Height A ct o f\n1910.\nT he D C. C ouncil\xe2\x80\x99s auth o nty is not further restricted by the lim itations contained in the Schedule\no f Heights that w as in effect on D ecem ber 24, 1973.\nA ugust\n\n28, 1998\n\nM e m o r a n d u m O p in io n f o r t h e D e p u t y A t t o r n e y G e n e r a l\n\nThis memorandum responds to your request for our views regarding the\nauthority of the Council of the District of Columbia to amend the Schedule of\nHeights of Buildings Adjacent to Public Buildings (\xe2\x80\x9c Schedule of Heights\xe2\x80\x9d ).\nSpecifically, we have considered whether, under section 602(a)(6) of the Home\nRule Act of 1973, the Council has the authority to amend the Schedule of Heights\nas long as any amendment is within the overall limitations set forth in the Building\nHeight Act of 1910. We conclude that the Council does have that authority, and\nthat its authority is not further restricted by the limitations contained in the\nSchedule of Heights that was in effect in 1973.\n\nI. Background\nSection 5 of the Building Height Act of 1910, 36 Stat. 452 (codified as amended\nat D.C. Code Ann. \xc2\xa75-405 (1994)) ( \xe2\x80\x9c Height Act\xe2\x80\x9d ), contains limitations on the\npermissible heights of buildings in the District of Columbia. Those limitations\ndepend on the width of the street on which a building will front, and on whether\nthe street is a business or a residential street. In addition, the Height Act provides\nthat the maximum height of buildings on blocks adjacent to public buildings\n\xe2\x80\x9c shall be regulated by a schedule adopted by the Council of the District of\nColumbia.\xe2\x80\x9d 1 Since 1910, the Commissioners of the District of Columbia, and\n1Section 5 of the Height Act, as amended, provides in pertinent part:\n(a) No building shall be erected, altered, or raised in the Distnct of Columbia in any manner so as\nto exceed in height above the sidewalk the width o f the street, avenue, or highway in its front, increased\nby 20 feet; but where a building or proposed building confronts a public space or reservation formed\nat the intersection o f 2 or more streets, avenues, or highways, the course of which is not interrupted by\nsaid public space or reservation, the limit o f height o f the building shall be determined from the width\nof the widest street, avenue, or highway.\n(b) No buildings shall be erected, altered, or raised in any manner as to exceed the height of 130 feet\non a business street or avenue\nexcept on the north side o f Pennsylvania Avenue between 1st and\n15th Streets Northwest, where an extreme height o f 160 feet will be permitted.\nContinued\n\n213\n\n\x0cOpinions of the Office o f Legal Counsel in Volume 22\n\nsubsequently the Council, have exercised their authority to set such further height\nlimitations under a Schedule of Heights in 15 different areas of the District adja\xc2\xad\ncent to public buildings, including the blocks around the White House, the\nSupreme Court Building, and the House and Senate Office Buildings.\nIn 1973 Congress enacted the District of Columbia Self-Government and\nGovernmental Reorganization Act, Pub. L. No. 93-198, 87 Stat. 774 (1973) (the\n\xe2\x80\x9c Home Rule Act\xe2\x80\x9d ), which gave the Council broad legislative powers over \xe2\x80\x9c all\nrightful subjects of legislation within the District.\xe2\x80\x9d D.C. Code Ann. \xc2\xa7 1-204\n(1992). That grant of authority, however, is not absolute. One of the limitations\nplaced on the Council is set forth in section 602(a)(6) of the Home Rule Act:\n(a) The Council shall have no authority to pass any act contrary\nto the provisions of this A ct except as specifically provided in this\nAct, or to:\n\n(6) Enact any act, resolution, or rule which permits the\nbuilding of any structure within the District of Columbia\nin excess of the height limitations contained in \xc2\xa7 5\xe2\x80\x94405, and\nin effect on December 24, 1973[.]\nD.C. Code Ann. \xc2\xa7 l-233(a)(6) (1992)2\nThe question posed here is whether the Home Rule Act\xe2\x80\x99s reference to \xe2\x80\x9c the\nheight limitations contained in \xc2\xa7 5 \xe2\x80\x94405, and in effect on December 24, 1973\xe2\x80\x9d\nincludes the limitations contained in the Schedule of Heights that was in effect\non December 24, 1973. If it includes those limitations, then the Council lacks\nthe authority to amend the Schedule of Heights in a way that would make it\nless restrictive than it was on December 24, 1973.\n(c) On a residence street, avenue, or highw ay no building shall be erected, altered, or raised in any\nmanner so as to be over 90 feet in height at th e highest part o f the roof or p a ra p et. . . .\n(d) The height o f a building on a comer lot will be determined by the width of the wider street.\n(f) On blocks immediately adjacent to public buildings or to the side o f any public building for which\nplans have been prepared and money appropriated at the time o f the application for the permit to construct\nsaid building, the maximum height shall be regulated by a schedule adopted by the Council of the Distnct\no f Columbia.\nD.C. Code Ann \xc2\xa7 5-405. As onginally enacted, the Height Act granted the authority to adopt a schedule of heights\nto the District o f Columbia Board o f Commissioners That authority was transferred in 1967 to the newly created\nDistnct o f Columbia Council, see Reorganization Plan No. 3 o f 1967, \xc2\xa7402, 120, D.C Code Ann. vol 1, p\n126, 137 (1991), and in 1973 to the Council o f the Distnct o f Columbia, see D.C Code Ann \xc2\xa7 1\xe2\x80\x94227(a) (1992)\n2 As onginally enacted in 1973, section 602(a)(6) o f the Home Rule Act was worded as follows*\n(a) The Council shall have no authonty to pass any act contrary to the provisions of this Act except\nas specifically provided in this Act, or to\xe2\x80\x94\n(6) enact any act, resolution, or rule w hich permits the building of any structure within the District\no f Columbia in excess o f the height limitations contained in section 5 o f the Act o f June I, 1910 (D.C\nCode, sec 5-405), and in effect on the date o f enactment o f this Act[ ]\nPub. L. No 93-198, \xc2\xa7602, 87 Star 774, 8)3 (1973) (emphasis added)\n\n214\n\n\x0cAuthority o f the D.C Council Under the Home Rule Act to Amend the Schedule o f Heights o f Buildings\n\nBoth the Council\xe2\x80\x99s General Counsel and the District\xe2\x80\x99s Corporation Counsel have\nconcluded that section 602(a)(6) of the Home Rule Act does not refer to the height\nlimitations contained in the Schedule of Heights, but refers only to the height\nlimitations included in the Height Act of 1910 itself, as amended (\xc2\xa75-405 of\nthe D.C. Code). Accordingly, in their view, the Council has the power to amend\nthe Schedule of Heights to the extent that any such* amendment is consistent with\n(i.e., no less restrictive than) the overall limitations set forth in the Height Act.\nSee Memorandum for Linda W. Cropp, Chairman, Council of the District of\nColumbia, from Charlotte Brookins-Hudson, General Counsel, Council of the Dis\xc2\xad\ntrict of Columbia (Nov. 24, 1997); Letter for Linda W. Cropp, Chairman, Council\nof the District of Columbia, from John M. Ferren, Corporation Counsel, Govern\xc2\xad\nment of the District of Columbia (Nov. 26, 1997) (\xe2\x80\x9c Corporation Counsel Letter\xe2\x80\x9d ).\nThe National Capital Planning Commission, however, has expressed a contrary\nview. See Letter for Linda W. Cropp, Chairman. Council of the District of\nColumbia, from Harvey B. Gantt, Chairman, National Capital Planning Commis\xc2\xad\nsion (Jan. 8, 1998). The Commission\xe2\x80\x99s view is based on a 1990 opinion letter\nfrom the Environment and Natural Resources Division of the Department of Jus\xc2\xad\ntice (\xe2\x80\x9c ENRD\xe2\x80\x9d ). See Letter for Linda Dodd-Major, General Counsel, National\nCapital Planning Commission, from Richard B. Stewart, Assistant Attorney Gen\xc2\xad\neral, Environment and Natural Resources Division, Department of Justice (Nov.\n6, 1990), reprinted in 137 Cong. Rec. 5131 (1991) ( \xe2\x80\x9c 1990 ENRD Letter\xe2\x80\x9d ). The\nprincipal conclusion of the 1990 ENRD Letter is that the Council\xe2\x80\x99s authority to\namend the Schedule of Heights is subject to the other limitations set forth in the\nHeight Act.3 However, the letter also contains a paragraph (not necessary to its\noverall conclusion) discussing section 602(a)(6) of the Home Rule Act and con\xc2\xad\ncluding that the height limitations referred to in that section include the limitations\nin the December 1973 Schedule of Heights. See id. at 12 reprinted in 137 Cong.\nRec. at 5133. Recently, ENRD has reevaluated the view expressed in this para\xc2\xad\ngraph of the 1990 ENRD Letter and has concluded that it was in error. ENRD\nhas consequently revoked the 1990 ENRD Letter. See Memorandum for Dawn\nJohnsen, Acting Assistant Attorney General, Office of Legal Counsel, from Lois\nJ. Schiffer, Assistant Attorney General, Environment and Natural Resources Divi\xc2\xad\nsion (June 30, 1998). For the reasons set forth below, we agree with ENRD\xe2\x80\x99s\nrecent conclusion that both the plain meaning and the legislative history of the\nHome Rule Act support an interpretation under which the Council may amend\nthe Schedule of Heights consistent with the statutory limitations in \xc2\xa7 5-405 of\nthe D.C. Code.\n\n\xe2\x80\xa2'The Council\xe2\x80\x99s General Counsel and the District's Corporation Counsel both agree with this conclusion, as do\nwe.\n\n215\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 22\n\nII. Discussion\n\xe2\x80\x9c Interpretation of a statute must begin with the statute\xe2\x80\x99s language.\xe2\x80\x9d Mallard\nv. United States District Court, 490 U.S. 296, 300 (1989). We believe that the\nplain language of section 602(a)(6) o f the Home Rule Act supports the District\xe2\x80\x99s\ninterpretation.\nThe statutory language restricts the range of the Council\xe2\x80\x99s authority to alter\nthe Schedule of Heights to \xe2\x80\x9c the height limitations contained in \xc2\xa75-405, and in\neffect on December 24, 1973.\xe2\x80\x9d The height limitations set forth in the Schedule\nof Heights as of December 24, 1973, however, were not (and are not) \xe2\x80\x9c contained\nin\xe2\x80\x9d \xc2\xa75^405 (\xc2\xa75 of the Height Act). Rather, that section contains certain specific\nheight limitations (\xc2\xa7 5^4-05(a)-(d)) and also includes a provision that the Council\nshall further regulate the heights o f buildings adjacent to public buildings by\nadopting a \xe2\x80\x9c schedule\xe2\x80\x9d (\xc2\xa7 5-405(f)). While \xc2\xa7 5 ^ 0 5 (f) may be considered an\nauthorization to adopt height limitations, it is not itself a height limitation. The\nterms of the Schedule of Heights, on the other hand, are not contained in \xc2\xa7 5 405 of the D.C. Code. Therefore, the statutory phrase \xe2\x80\x9c the height limitations con\xc2\xad\ntained in \xc2\xa7 5 -4 0 5 \xe2\x80\x9d does not by its terms encompass the height limitations set\nforth in the Schedule of Heights.\nThe analysis is not altered when one considers the additional statutory language\n\xe2\x80\x9c and in effect on December 24, 1973.\xe2\x80\x9d Because the pertinent phrases are joined\nby the conjunction \xe2\x80\x9c and,\xe2\x80\x9d the \xe2\x80\x9c height limitations\xe2\x80\x9d identified by section 602(a)(6)\nof the Home Rule Act must be both \xe2\x80\x9c contained in \xc2\xa7 5 ^-0 5 \xe2\x80\x9d and \xe2\x80\x9c in effect on\nDecember 24, 1973.\xe2\x80\x9d The statute would be broader if it were phrased in the\ndisjunctive, but it is not. Thus, under the natural reading of the language, that\na height limitation is \xe2\x80\x9c in effect on December 24, 1973\xe2\x80\x9d does not bring it within\nthe statute unless it is also \xe2\x80\x9c contained in \xc2\xa7 5^4-05.\xe2\x80\x9d\nThe 1990 ENRD Letter failed to recognize the significance of this language\nin its brief discussion of section 602(a)(6) of the Home Rule Act. It stated:\nSection 602(a)(6) prohibits the Council from enacting any act which\npermits the building of any structure that exceeds (1) the section\n5-405 height limitations, or (2) the height limitations in effect on\nDecember 24, 1973\xe2\x80\x94 which include the Schedule of Heights as it\nexisted at the time the Home Rule Act was enacted. In other words,\nunder section 602(a)(2) [sic] of the Home Rule Act, the Council\xe2\x80\x99s\nauthority under section 5\xe2\x80\x94405(f) of the Height Act is limited to\namending the Schedule of Heights to set height limits that are (1)\nlower than the applicable Height Act limits (for locations not\nincluded on the pre-Home Rule Schedule of Heights), or (2) lower\nthan the pre-Home Rule Schedule of Heights limitations (for loca\xc2\xad\ntions that are included in the pre-Home Rule Schedule). The\n216\n\n\x0cAuthority o f the D C. Council Under the Home Rule Act to Amend the Schedule o f Heights o f Buildings\n\nCouncil is barred by section 602(a)(6) of the Home Rule Act from\nexceeding either of those limitations.\n1990 ENRD Letter, at 12 reprinted in 137 Cong. Rec. at 5133. (footnote omitted).\nThis discussion, however, does not follow the language of section 602(a)(6). In\nfact, its significant rephrasing of the statutory language\xe2\x80\x94 and in particular its\nsubstitution of disjunctive language\xe2\x80\x94 highlights the lack of support for this\ninterpretation in the actual language of the statute. See Corporation Counsel Letter\nat 5. The natural reading of section 602(a)(6)\xe2\x80\x99s language covers only those height\nlimitations that are both \xe2\x80\x9c contained in \xc2\xa75\xe2\x80\x94405\xe2\x80\x9d and \xe2\x80\x9c in effect on December\n24, 1973.\xe2\x80\x9d\nWe have considered whether this reading of the statute renders superfluous the\nphrase \xe2\x80\x9c and in effect on December 24, 1973.\xe2\x80\x9d See 2A Norman J. Singer, Suther\xc2\xad\nland Statutory Construction \xc2\xa746.06, at 119 (5th ed. 1992) (statute should be con\xc2\xad\nstrued to give meaning and effect to each term). It would seem that Congress\ncould have achieved the same result-by referring to \xe2\x80\x9c the height limitations con\xc2\xad\ntained in \xc2\xa7 5 -4 0 5 \xe2\x80\x9d without the additional \xe2\x80\x9c and in effect\xe2\x80\x9d phrase. As enacted in\n1973, however, the Home Rule Act referred to \xe2\x80\x9c the height limitations contained\nin section 5 o f the Act o f June 1, 1910 (D.C. Code, sec. 5^105).\xe2\x80\x9d See supra\nnote 2. The Height Act was amended several times after 1910.4 Thus, the addi\xc2\xad\ntional phrase in the Home Rule Act\xe2\x80\x94 which originally was \xe2\x80\x9c and in effect on\nthe date of enactment of this Act\xe2\x80\x9d \xe2\x80\x94 makes clear that the Council is bound not\nonly by the limitations of the Height Act of 1910 itself, but also by all amend\xc2\xad\nments to the Act that were in effect when the Home Rule Act was enacted. The\nphrase is therefore not superfluous.\nThe plain language of section 602(a)(6), in our view, does not cover the height\nlimitations set forth in the Schedule of Heights. Even if the language were ambig\xc2\xad\nuous, however, the legislative history would not warrant a contrary conclusion.\nThe House report on the Home Rule bill describes section 602(a)(6) as pre\xc2\xad\ncluding the Council from \xe2\x80\x9c permitting the construction of buildings in excess of\nthe present height limitations set by Congress.'\xe2\x80\x99\xe2\x80\x99 5 Rep. Fauntroy similarly referred\nto \xe2\x80\x9c the height limitations imposed by the Congress.\xe2\x80\x9d 6 Because the height limita\xc2\xad\ntions in the Schedule of Heights are set by the Council rather than Congress,\nthese references support the view that section 602(a)(6) addresses only the limita\xc2\xad\ntions set forth in the Height Act.\n\xe2\x96\xa0'See. e g . Act of June 7, 1924. ch 340, 43 Stat 647. Acl o f Feb 21, 1925, ch 289, 43 Slal. 961, Act of\nMay 16, 1926. ch 150, 44 Slal 298. Act of April 29, 1930, ch 220, 46 Slat 258. Acl of March 24, 1945, ch\n37. 59 Stat 38, Acl of Sept. 22. 1961. Pub L. No. 87-281. \xc2\xa7 1, 75 Slat. 583\n\xe2\x80\xa2'H R . Rep No 93-482, al 15 (1973) (emphasis added), isee also id at 37 (section-by-section analysis rccilcs\nlanguage of section 602(a)(6) without the final \xe2\x80\x9c and in effect on . \xe2\x80\x9d phrase)\nh House Committee on the Distnct o f Columbia, 93d Cong., 2d Sess , Home Rule for the Distnct of Columbia\n1973-1974. Background and Legislative History 1125 (Comm Print 1974) (proceedings dated July 25. 1973)\n(emphasis added) ( \xe2\x80\x9c Home Rule Act Legislative History\xe2\x80\x9d )\n\n217\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 22\n\nThe conference report describes section 602(a)(6) as providing that \xe2\x80\x9c the Council\ncould not change building height limitations.\xe2\x80\x9d 7 Similarly, Rep. Diggs, the chair\nof the House Committee on the District of Columbia, stated that the Council is\n\xe2\x80\x9c prohibited from modifying the building height limitations now in effect,\xe2\x80\x9d 8 and\nfrom \xe2\x80\x9c increasing height limitations on buildings.\xe2\x80\x9d 9 Such references are ambig\xc2\xad\nuous. While they could arguably suggest a broader reading of section 602(a)(6)\nas including the Schedule of Heights limitations, they could also reasonably be\nconstrued as shorthand references to the limitations contained in the Height Act\nitself.\nThe strongest arguable basis in the legislative history for a contrary view\nappears to consist of two statements by Jacques DePuy, Counsel to the House\nSubcommittee on Government Operations of the Committee on the District of\nColumbia, during markup of the bill. Before the provision was drafted, he sug\xc2\xad\ngested that the Members might want to add \xe2\x80\x9c in the specific limitations of the\nCouncil an amendment co m b in in g th e e x istin g h eig h t l i m i t a t i o n s 10 And when\npresenting the provision, he stated:\nWhat we drafted was an amendment which would go to the\nlimitations on the Council that the Council could not enact an act\nthat permitted building above e x istin g h e ig h t lim ita tio n s, and\nf r e e z in g in w h a t n o w is e x is tin g la w , and would prohibit the Council\nfrom allowing any building above that limitation.1'\nThese statements could be read to support the view that Mr. DePuy contemplated\na provision precluding the Council from broadening the height limitations in the\nHeight Act as well as those in the Schedule of Heights in effect in 1973. Even\nthese statements, however, are far from clear in their meaning. The reference to\n\xe2\x80\x9c freezing in what now is existing law ,\xe2\x80\x9d for example, could simply indicate that\nthe Council would not have unrestricted authority to amend \xc2\xa7 5\xe2\x80\x94405, as it would\nwith respect to many other provisions of the D.C. Code. Moreover, neither the\ncongressional reports nor comments by Members of Congress reflect any intent\non th e ir part to include the separate Schedule of Heights restrictions in the scope\nof section 602(a)(6).\nIn sum, the legislative history does not reveal any clear or generally accepted\nintent on Congress\xe2\x80\x99s part to preclude the Council from making the Schedule of\nHeights less restrictive than it was at the time the Home Rule Act was adopted.\nThus, even when the legislative history is consulted, it fails to overcome the nat\xc2\xad\n7 H R. C onf Rep No. 93-703, al 75 (1973).\n8 Home Rule Act Legislative History at 1358 (July 31, 1973)\n9Id. at 3051 (Dec. 17, 1973)\n10Id at 215 (May 17, 1973) (emphasis added).\n11Id at 302 (May 2 1 ,1 9 7 3 ) (emphasis added).\n\n218\n\n\x0cAuthonty o f the D C Council Under the Home Rule Act to Amend the Schedule o f Heights o f Buildings\n\nural reading of the statute as covering only those height limitations contained in\nthe Height Act, as amended.\n\nIII. Conclusion\nFor the foregoing reasons, we conclude that the Council has the authority, under\nsection 602(a)(6) of the Home Rule Act, to amend the Schedule of Heights as\nlong as any amendment is within the overall limitations set forth in the Height\nAct of 1910, as amended (D.C. Code Ann. \xc2\xa75-405), and that that authority is\nnot further restricted by the limitations contained in the Schedule of Heights that\nwas in effect on December 24, 1973.\nBETH NOLAN\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n219\n\n\x0c"