Creative, DC-specific legal challenges founder on the shoals of plain error review.

(except, of course, in DC, where everything is more complicated)

Melvin Barnes v. United States, No. 13-CT-103 (decided via unpublished opinion on October 8, 2014; published on November 20, 2014)

Players: Associate Judges Glickman & Easterly, Senior Judge Pryor. Opinion by Judge Glickman. Jeffrey L. Light for Mr. Barnes. Trial Judge: Marisa J. Demeo.

Facts: Mr. Barnes was arrested for DUI on November 7, 2012. The DUI statute in effect at the time was the second emergency act relating to DUI passed by the DC Council while a permanent act, covering the same subject matter, went through the later stages of the statutory approval process prescribed by the Home rule Act. The Council passed the first emergency act on July 10, 2012, and the second on October 2. The second act went into effect on October 26, but was not published in the DC Register until November 9 — two days after Mr. Barnes’s arrest. Meanwhile, the Council approved the permanent act on its first reading on July 10, and again approved it on the second reading on September 19. The permanent act was signed by the Mayor and transmitted to Congress on January 10, 2013, and went into effect in April.

Issue 1: Applying plain-error review, did the D.C. Council run afoul of the Home Rule Act by enacting a second emergency act rather than “proceed[ing] with appropriate dispatch [so that] the Permanent Act could have been approved and taken effect before the First Emergency Act expired?

Holding: No. Although the Council may not use emergency legislation to “circumvent congressional review,” the record does not suggest that this is what happened here. The permanent act was approved on its second reading — paving the way for the Mayor’s signature and Congressional review — before passage of the second emergency act. And the somewhat-delayed second reading of the permanent act made sense given that the Council went on summer recess shortly after the first reading.

Issue 2: Applying plain-error review, did Mr. Barnes receive inadequate notice of the statute for which he was arrested, in violation of the Ex Post Facto and Due Process Clauses?

Holding: No. First, although the second emergency act was not published in the DC Register until two days after Mr. Barnes’s arrest, the act had gone into effect prior to his arrest. Second, a resolution announcing the Council’s passage of the emergency act had been published about two weeks before his arrest, arguably providing the requisite notice.  JM.

Read full opinion here.