Acceptance Speech of Roberts Owen
2010 Vision Awards
June 1st, 2010
COMMITTEE OF 100...
I am very touched by this award - partly because of the timing.
You are honoring me here today for some youthful litigating adventures that started back when I was a young lawyer more than forty years ago.
This evening I feel like the old war veteran who gets a medal for youthful escapades in a long forgotten war.
Thank you for remembering. The passage of time makes the present award all the more appreciated.
It has been suggested that I try to summarize the history of the D.C. freeway litigation of the 1960's and '70's in the next several minutes, and I will try, although I have to say it is no easy task, given the story's complexity.
To give some hint of that complexity, I can simply say that if one lawyer had been tackling the case all by himself, it would have taken him two full years of his life to get the work done. 4000 lawyer hours were actually spent on the litigation during its five-and- a-half-year duration, and in the Federal courts a lot of things can, and did, happen in that long a period.
At any rate, oversimplifying things, I should start with a reference to the so-called freeway proponents -- a large group of people who believed, in the 1960's, that any city faced with traffic and public transportation problems should adopt what I call the Los Angeles solution. Their approach was to depend basically on the private automobile --Forget rapid transit -- Build massive freeways throughout your community -- And your transportation problems will be solved.
Regrettably, that was the view espoused by one particularly important person then living in the District of Columbia -- a gentleman named William Natcher, who had been sent to Congress by the good people of Tennessee, and who had become in effect Big-City Boss over the affairs of the District as Chairman of the committee which controlled all appropriations for the District.
In the mid-1960's he pushed aside all rapid transit proposals for the District, and instead he had Congress appropriate funds to build a Los Angeles-like system of massive inter-connecting freeways throughout the D.C. region -- including ( and I'll mention just the first four in a longer series of projects) the North Central Freeway project, the East Leg, a new Missouri Avenue Expressway, and, of course, a new bridge across the Potomac River at the Three Sisters Islands just above Georgetown -- just those four with a projected cost of several hundred million dollars.
The Board of Commissioners who then ran the District Government took this legislation as a Congressional command to build these projects without bothering with public hearings, and at that point a number of groups approached my law firm, Covington & Burling, and asked, figuratively, whether there was a chance of our going to court to stop Natcher and his huge Federal steamroller from paving over large parts of the District without consulting local citizens.
One of those seeking our help, as you probably know, was a former member of this Committee, the late Peter Craig, who in his early life had been an associate at the Covington firm and knew of the firm's strong tradition of taking on deserving public interest cases -- with the firm's charging no fees, and often paying expenses out its own pockets. By this time I was a partner and welcomed the adventure, and, with the help of one young associate, Jerry Norton, off we went to war.
It turned out, of course, to be a long and bouncy road. In the fall of 1966 we filed a lawsuit against the D.C. Government on behalf of a whole list of citizens associations, including this Committee. (Allegedly the listed associations represented 200,000 D.C. citizens). Our essential contention, obviously, was that our own D.C. Code, as passed by Congress, forbad the construction of any street or highway in D.C. without first giving D.C. citizens a chance to be heard in public hearings, but Federal District Judge Alexander Holtzoff was a Federal man - and he disdainfully disagreed. With respect to Federally funded projects, he thought it obvious that Congress had intended to shelve local D.C. public-hearing rights, and he quickly threw us young whippersnappers out of court.
Well, that was the first of three major bumps in a long road, but we immediately took the case to the Court of Appeals, which peremptorily and unanimously reversed Holtzoff in February 1968, saying that the D.C. Code, passed by Congress, gave D.C. citizens a clear right to be heard before a Federal appropriation could compel us to accept a freeway system. Well, so far so good, but Natcher and his people were so infuriated by this court-of-appeals'defiance of what Natcher viewed as the will of Congress that he took two major steps.
First, he announced that the District would never get its much-wanted rapid transit system until AFTER Natcher's pet freeways were well underway. And, second, in August 1968 he procured the fast passage of a special new statute saying that, notwithstanding what the Court of Appeals had said, both the Federal and D.C. Governments were now COMMANDED to go forward with the Three Sisters Bridge and related highways, all in accordance with the Federal highway laws.
Not surprisingly, these actions made many D.C. citizens even more angry. We noted that the Federal highway laws themselves contain public hearing requirements, as well as other public- interest protective provisions, all of which were supposed to protect citizens all across the country, and in our view Natcher's new statute was an unconstitutional effort to strip our D.C. citizens of these protections while leaving the same protections intact for everybody else in the country.
So, the immediate next question: Should we bring another lawsuit?
Many felt that it was hopeless, that the Federal courts would not defy Natcher again, but we were young and eager - the law firm left us free to proceed - and back we went to court again in October of 1969, this time suing not just D.C. officials but also the Federal Secretary of Transportation, John Volpe, former Governor of my home State of Massachusetts and a prominent member of the President's cabinet.
We quickly made known that we intended, in a quite unprecedented way, to call and question the Secretary on deposition and as a trial witness, and this was considered so offensively brash that in response. the two Governments wheeled in a team of eight U.S. and D.C. attorneys to try to crush us as quickly as possible, And they did - briefly. Federal Judge John Sirica, later of Watergate fame, summarily threw us out of court again in January 1970, and again the Court of Appeals summarily reversed, commanding Sirica to give us a chance to prove our case.
I sort of hate to admit this, but I will say that the three week trial before Sirica was about as much fun as a trial can be. We were on the side of the angels (which is not always the case); the government lawyers, armed with their new statute, failed to do any serious homework; and since the judge himself knew nothing about the case and did no homework either, the result (throwing modesty to the winds) was that our young two-man trial team were the only people standing in the courtroom who really understood the case --and in trial that always tends to boost one's morale.
At first Sirica obviously didn't see how two young lawyers could possibly support an injunction against a whole series of huge federal highway projects, but after he had been exposed to lengthy testimony - including hours of unprecedented questioning of a Presidential cabinet officer - he came to recognize that there was something to be said for our side. As among our total of eight claims of illegality, he rejected five, but he upheld the three others, and, to our great joy, on August 3, 1970, he enjoined all further work on the contested freeways pending corrective action.
Finally, to put more frosting on our cake, when both sides appealed, the Court of Appeals ruled in our favor on all eight claims, giving us a clean sweep - including our proudest claim that the citizens of D.C. have just as great rights under the Federal highway laws as the citizens of any other State.
The injunction against the freeways was affirmed; the Supreme Court denied certiorari (to the apparent distress of the then Chief Justice); and five and a half years and 4000 lawyer hours later, the litigation came to an end in March 1972. As you know, the contested freeways have never been built.
Well, that is an admittedly prejudiced short history of the D.C. freeway litigation. Thinking back, I have received two notable tributes for my work on the case (apart, that is, from my own speech here this evening).
Some of the older people here will remember a much beloved Democratic couple, Jim and Libby Rowe, who were neighbors of mine in Cleveland Park, and the first tribute I received was a single red rose that Libby Rowe left on my front door step the evening after the final appellate victory. And the second tribute is tonight's award – which I choose (with your permission) to accept on behalf of Covington & Burling, which ultimately should receive the credit (if it wants it) for the D.C. freeway litigation.
On the firm's behalf and my own -- many, many thanks.