Washington Lawyer

Finding the Law in the District of Columbia: An Excerpt

From Washington Lawyer, January 2016

By James C. Mckay Jr.

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The District of Columbia Practice Manual is a two-volume, softcover guide covering the basics of law in the District of Columbia. This comprehensive publication brings together the collective knowledge of hundreds of experienced practitioners in 34 chapters. The starting point for every D.C. practitioner, the Practice Manual includes an introductory chapter on "Finding the Law in the District of Columbia," a portion of which is excerpted here. The full Practice Manual may be ordered online by visiting the D.C. Bar Marketplace.

Finding the law of the District of Columbia can be challenging because the District is a unique political entity. Created by Congress in 1801 as the nation's capital, the District has for various purposes been treated as a state, municipal corporation, territory, and federal agency. Under its plenary constitutional power over the District, Congress established various local judicial systems, legislative bodies, and executive authorities, but usually retained a measure of federal control. Thus, the law of the District may be found in enactments of Congress and local legislatures, decisions of federal and local courts, and actions of federal and local executive authorities.

This chapter provides a basic guide to the sources of the District's law. The term "law" is used in its broadest sense, including actions of the legislative, judicial, and executive branches of government. The chapter is organized into parts discussing the sources of law (both federal and local) emanating from each branch of government. The appendix includes a list of publications and Web sites that contain the law of the District of Columbia or assist in finding it.

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Judicial Decisions and Rules of Courts

This section discusses judicial decisions and rules of the federal and local court systems of the District of Columbia. Because of the unique constitutional status of the District, the relation between these two court systems is somewhat complex. Both court systems were created by an act of Congress, although the local court system was created pursuant to Congress's power under article I of the Constitution, and the federal court system was created pursuant to article III. See Palmore v. United States, 411 U.S. 389 (1973).

The District of Columbia Code, now published by LexisNexis, annotates each section of the D.C. Code with summaries of cases interpreting the section. It is updated annually with pocket parts. The D.C. Digest, published by Thomson West, provides a broader analysis of the law of the District broken down according to the Thomson West key-numbering system. The set is supplemented annually with pocket parts and continually on Westlaw. Thomson West has made the D.C. Digest available on CD-ROM. Between annual pocket parts, new cases may be viewed free of charge on Westlaw through a link on the CD-ROM.

Judicial Decisions

1. District of Columbia Court of Appeals

The District of Columbia Court of Appeals was designated by the Court Reorganization Act of 1970, Pub. L. No. 91-358, 84 Stat. 475 (1970), as the highest appellate court for the District of Columbia. D.C. Code § 11-102 (2012 Repl.). Its decisions are available on its Web site at www.dccourts.gov/internet/appellate/main.jsf. Under the heading "Online Services, click on "Opinions." The court no longer publishes slip opinions. They are printed several weeks later in the Atlantic Reporter, Third Series (A.3d), published by Thomson West. In addition, the decisions are reprinted in another Thomson West publication, the Maryland Reporter, which prints only decisions of the D.C. Court of Appeals and the Maryland Court of Appeals. Both sets are supplemented weekly. It takes approximately 6 to 10 weeks for a decision to appear in a supplement. They are available on Westlaw (database: DC-CS) and Lexis (States Legal–U.S.; District of Columbia;Cases; DC Cases, Combined) a couple of weeks after they are issued. Decisions of the D.C. Court of Appeals (and predecessor Municipal Court of Appeals) since 1943 are also available on CD-ROM from Thomson West (800-328-9352). Replacement disks are sent every quarter, and decisions issued in the interval are available free of charge through a link to Westlaw.

The D.C. Court of Appeals also issues memorandum opinions and judgments (MOJs) in clear-cut cases, which bind the parties but have no precedential value and may not be cited as authority. D.C.C.A. Internal Operating Procedures § IX.C. The names of cases decided by MOJ and the ultimate decision of the court (e.g., affirmed or reversed), but not the decisions themselves, can be accessed directly at www.dccourts.gov/internet/mojlocator.jsf. They are available at the Public Office of the D.C. Court of Appeals, 430 E Street, NW, Washington, DC 20001.

2. Superior Court of the District of Columbia

The Superior Court of the District of Columbia was established as the unitary trial court for the District by the D.C. Court Reorganization Act of 1970. See D.C. Code § 11-102 (2012 Repl.). Its decisions are published in the Daily Washington Law Reporter (202-331-1700;www.dwlr.com), which offers subscriptions both for current paper copies of its issues and for online access to its current and older issues. Not all decisions are printed, but only those deemed by the chief judge of the Superior Court to be worthy of general publication. An index is published every six months. Some of these decisions are also available on Westlaw (database: DC-CS) and Lexis (States Legal–U.S.;District of Columbia;Cases;D.C. Superior Court of the District of Columbia) starting from 2001.

3. United States Court of Appeals for the District of Columbia Circuit

The highest federal court in the District of Columbia, other than the Supreme Court, is the United States Court of Appeals for the District of Columbia Circuit. Decisions of this court are no longer available by subscription. However, the opinions are available on the same day they are issued on the court's Web site at www.cadc.uscourts.gov. The opinions are published by Thomson West in the Federal Reporter, First Series (F.), Second Series (F.2d), and Third Series (F.3d). They are also printed in another publication by Thomson West, the United States Court of Appeals for the District of Columbia Circuit (U.S. App. D.C.), which contains only opinions of this court. The decisions are available on Westlaw (database: CTADC) and Lexis (States Legal–U.S.; District of Columbia; Cases; District of Columbia Circuit–U.S. Appeals Cases) a couple of weeks after issuance.

The D.C. Circuit also issues "unpublished" orders and judgments, especially in clear-cut cases. Unpublished orders or judgments issued before January 1, 2002, may not be cited as precedent, although they may have binding or preclusive effect under res judicata or law of the case. D.C. Cir. R. 28(c)(1)(A). However, unpublished orders or judgments issued on or after that date may be cited as precedent. D.C. Cir. R. 28(c)(1)(B). In September 2001, in response to this dramatic change in the policy of the D.C. Circuit and other circuits, Thomson West started publishing a new reporter, the Federal Appendix, which contains the unpublished decisions of the D.C. Circuit (and other circuits). Cases in this reporter are cited as __ Fed. Appx. __. The decisions are contained in a separate database—CTADCU—on Westlaw, but not Lexis. However, the cases also may be found in the general database—CTADC—on Westlaw for decisions of that court, and in States Legal–U.S.; District of Columbia;D.C. Federal & State Cases, Combined on Lexis.

4. United States District Court for the District of Columbia

Decisions of the federal District Court for the District of Columbia are contained in the Federal Supplement Second (F. Supp. 2d), published by Thomson West. Weekly supplements are published. Select decisions of that court are also published in the Daily Washington Law Reporter. The decisions are available on Westlaw (database: DCT) and Lexis (States Legal–U.S.;District of Columbia;District of Columbia Circuit–U.S. District Court Cases) several weeks after issuance.

5. Decisions of Prior Appellate Courts of the District of Columbia

Sometimes it is necessary to research decisions of the District of Columbia courts that existed prior to the current courts. Between the establishment of the District in 1801 and the enactment of the Court Reorganization Act in 1970, Congress organized and reorganized the courts of the District several times. The decisions of these courts are on Westlaw (database: DC-CS) and, starting in 1840, on Lexis (States Legal–U.S.;District of Columbia;D.C. Circuit Court, 1840–1971). The jurisdiction of these courts and their interrelationship are complex. The Organic Act of 1801 established the Circuit Court of the District of Columbia, consisting of three judges who were vested with the same powers as the judges of the circuit courts of the United States, which had been established earlier that year. This court continued until 1863, when a reorganization occurred. The opinions issued by the Circuit Court of the District of Columbia are found in two separate series. The first is a five-volume set, reported by Chief Judge Cranch, which covers the period 1801 to 1840. The second is a two-volume set, reported by Hayward and Hazelton, which covers the period 1840 to 1863. These decisions were not published until 1892 to fill a gap in reported decisions. By then, a new numbering system had been superimposed, and the volumes were renumbered 1 D.C. to 21 D.C. However, these two volumes were not included in the new numbering system and must be cited as, for example, 1 Hayward and Hazelton. Chronologically, they fall between 5 D.C. and 6 D.C.

In 1863 Congress reorganized the courts of the District and created a Supreme Court of the District of Columbia as the sole court for original and appellate jurisdiction. It was divided into special terms (with one justice sitting) and general terms (with three justices), which heard appeals from the special terms. That court lasted until 1893, and its decisions are in 15 volumes reported by MacArthur and Mackey—6 D.C. to 21 D.C.

In 1893 Congress established the Court of Appeals of the District of Columbia to replace the general (appellate) terms of the Supreme Court, with expanded jurisdiction. The publishers of the reported decisions started a new numbering system, beginning with 1 App. D.C. The name of the court was changed to the present United States Court of Appeals for the District of Columbia Circuit in 1934. Starting in 1920, its decisions were also reported in the Federal Reporter (F. and, later, F.2d and F.3d). Until 1942 that court had exclusive appellate jurisdiction over decisions of all local courts. In that year Congress established the Municipal Court of Appeals for the District of Columbia as an intermediate court of appeals with limited jurisdiction. Its decisions were reported in the Atlantic Reporter, Second Series (A.2d). Decisions of that court could then be reviewed by the United States Court of Appeals for the District of Columbia through a petition for the allowance of an appeal.

The name of the Municipal Court of Appeals was changed to the District of Columbia Court of Appeals in 1962. In 1970 Congress enacted the D.C. Court Reorganization Act, which created the present court structure. Under this Act, judgments of the D.C. Court of Appeals are no longer reviewable by the U.S. Court of Appeals for the District of Columbia, but only by the U.S. Supreme Court. The D.C. Court of Appeals became the "highest court of the District of Columbia" for local law purposes. D.C. Code § 11-102 (2012 Repl.).

6. Precedential Value of Pre-Court Reform Decisions

Soon after the effective date of the Court Reorganization Act (February 1, 1971), the D.C. Court of Appeals in the decision of M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971), announced its policy concerning the precedential value of decisions of the U.S. Court of Appeals for the District of Columbia Circuit. The rule is that (1) decisions of the Circuit Court prior to February 1, 1971, constitute the case law of the District of Columbia, as do decisions of the D.C. Court of Appeals after that date; (2) decisions of the Circuit Court issued prior to February 1, 1971, may be overruled only by the D.C. Court of Appeals sitting en banc, but not by a division of the court; and (3) the D.C. Court of Appeals is not bound by decisions of the Circuit Court issued on or after February 1, 1971, although they are entitled to great respect. Both Westlaw and Lexis have databases—DC-CS and States Legal–U.S.;D.C. Federal & State Cases; Combined, respectively—that combine these older, binding decisions of the D.C. Circuit with the more recent decisions of the D.C. Court of Appeals.

7. Applicability of Maryland Common Law

Section 1 of the 1901 Code, D.C. Code § 45-401 (2012 Repl.), reprinted in section II.A.7 of this chapter, incorporates by reference the common law of Maryland existing at the time the District was carved out of that state on February 27, 1801. Ascertaining Maryland common law as it existed in 1801 requires reference to the Maryland appellate decisions at that time, which are contained in old publications by Harris and McHenry (1658–1799) and Harris and Johnson (1800–26).

B. Rules

1. District of Columbia Courts

The Court Reorganization Act provided that the D.C. Court of Appeals initially conduct its business according to the Federal Rules of Appellate Procedure. D.C. Code § 11-743 (2012 Repl.). That provision also gave the court the authority to modify those rules as it saw fit. Likewise, the Act provided that the Superior Court initially conduct its business according to the Federal Rules of Civil Procedure and Federal Rules of Criminal Procedure. Id. § 11-946. The Superior Court is authorized to issue rules modifying the federal rules, but such rules require the approval of the D.C. Court of Appeals. Other rules issued by the Superior Court that do not modify the federal rules do not require the approval of the D.C. Court of Appeals. Id.

a. The D.C. Court of Appeals has issued two sets of rules: the Rules of the District of Columbia Court of Appeals and the District of Columbia Bar Rules. The court completely revised its rules in 2003. The revised rules took effect on January 2, 2004, and apply to all appeals and petitions filed on or after that date.

b.The following rules are applicable to proceedings in the Superior Court for each division of the court and the Family Court:

(i) Civil Division: Civil Procedure, Agency Review, Procedure for the Small Claims and Conciliation Branch, Procedure for the Landlord and Tenant Branch, Mandatory Arbitration, Civil Arbitration Program;

(ii) Criminal Division: Criminal Procedure, D.C. Code Section 23-110 Proceedings (postconviction), Crime Victim Compensation Program;

(iii) Probate Division: Procedure for the Probate Division;

(iv) Tax Division: Rules for the Tax Division;and

(v) Family Court: General Rules of the Family Division, Domestic Relations Procedures, Adoption Proceedings, Proceedings in the Domestic Violence Unit, Juvenile Proceedings, Neglect Proceedings, Procedure for Mental Health, Mental Retardation Procedure.

2. Federal Courts

The U.S. Court of Appeals for the District of Columbia Circuit is primarily governed by the Federal Rules of Appellate Procedure. In addition, the court, pursuant to Rule 47 of the foregoing rules, has issued local rules of practice not inconsistent with the Rules of Appellate Procedure. Likewise, the U.S. District Court for the District of Columbia is governed by the Federal Rules of Civil Procedure and Federal Rules of Criminal Procedure, but has also issued local rules of practice.

3. Publication of Rules

Two companies publish all of the rules of the D.C. Court of Appeals and D.C. Superior Court and the local rules of the Circuit Court and District Court: Thomson West (800-328-9352) and Lexis Law Publishing (800-223-1940). Lexis Law Publishing (formerly the Michie Company) issues a two-volume set of the rules, which must be replaced each year, and includes them on a CD-ROM in Michie's District of Columbia Law on Disk, which is updated quarterly. The rules of the D.C. Circuit are included in the appendix to title 28, U.S.C.A., published by Thomson West, and are on Westlaw (database: USC) and Lexis (States Legal–U.S.; District of Columbia;Federal Legal–U.S.;Find Statutes, Regulations, Administrative Materials & Court Rules;Court Rules; Individual Circuit Rules;District of Columbia Circuit–USCS–Court of Appeals Rules). The rules of the D.C. Court of Appeals are on Westlaw (database: DC-RULES) and Lexis (States Legal–U.S.;District of Columbia; Find Statutes, Regulations, Administrative Materials & Court Rules; By Court Rules;D.C.–District of Columbia State & Federal Rules; Rules of the District of Columbia Court of Appeals).

A publication of the D.C. Circuit combines the D.C. Circuit Rules, Federal Rules of Appellate Procedure, and the Handbook of Practice and Internal Procedures. The handbook and individual rules are available on the court's Web site at www.cadc.uscourts.gov.

All new rules of these four courts are published in proposed and final form in the Daily Washington Law Reporter. The rules of the D.C. Court of Appeals are explained in a treatise titled Appellate Practice Manual for the D.C. Court of Appeals, published by the Young Lawyers Section of the Bar Association of the District of Columbia (BADC) (202-223-6600), which may be ordered from the BADC Web site. This publication is being updated.

The rules of all four courts are available online and may be downloaded in PDF format. The rules of the D.C. Court of Appeals are available at www.dccourts.gov/internet/appellate/dccarules.jsf. The rules of the Superior Court are available at www.dccourts.gov/internet/legal/dcscrules.jsf.

The Federal Rules of Appellate Procedure and the local rules of the U.S. Court of Appeals for the District of Columbia Circuit are available at www.cadc.uscourts.gov under the tab "Rules & Procedures." The Federal Rules of Civil Procedure and Federal Rules of Criminal Procedure, as well as the local rules of the U.S. District Court for the District of Columbia, are available at www.dcd.uscourts.gov. Follow the link "Rules and Forms."


James C. McKay Jr. serves in the Office of the Attorney General for the District of Columbia.