Gary v. United States

499 A.2d 815

• Court: District of Columbia Court of Appeals
• Decided: October 17, 1985
• Docket: 83-796, 84-703 and 84-997
• Status: Published

Opinions

Opinion for the court by Associate Judge NEWMAN.

Concurring opinion by Associate Judge NEBEKERatp. 836.

Opinion concurring in part and dissenting in part by Associate Judge MACK at p. 849.

Concurring statement by Associate Judge BELSON at p. 859.

Concurring opinion by Associate Judge TERRY at p. 859.

NEWMAN, Associate Judge:

The principal issue presented for decision in these cases is the impact of Immigration & Naturalization Service v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983), on the one “House of Congress” veto provision of the D.C. Self-Government and Governmental Reorganization Act, D.C.Code §§ 1-201 to -295 (1981) (“Home Rule Act”) and the consequences upon the convictions on appeal in these cases. We hold that the one house veto provision contained in § 233(c)(2) of the Home Rule Act is invalid based on Immigration & Naturalization Service v. Chadha, supra, that this provision is severable, and that our decision shall apply prospectively only.

Gary challenges his conviction for rape (D.C.Code § 22-2801 (1981)), and Cole his conviction for carnal knowledge (D.C.Code § 22-2801 (1981)). They contend that the Code provisions, under which they were convicted, had been repealed by the adoption of the District of Columbia Sexual Reform Act of 1981, D.C.Act. No. 4-69, 28 D.C.Reg. 3409 (1981) (S.A.R.A. of 1981), since the “veto” of that Act by the House of Representatives was a nullity. They both agree with the position of the United States that the one house veto provision is severable. Gary contends he is entitled to a new trial for this and other reasons while Cole argues that he is entitled to be resen-tenced for this and other reasons. Pee was convicted of possession of heroin with intent to distribute (D.C.Code § 33-541(a)(l) (Supp.1984)). He contends that the one house veto provision is invalid, unsevera-ble, and that without the one house veto, the Home Rule Act would not have been passed by Congress. He thus contends the government of the District of Columbia was without authority to enact the statute he was convicted of violating. (District of Columbia Uniform Controlled Substance Act of 1981, D.C.Code §§ 33-501 to -567 (Supp.1984)). We hold that none of the appellants is entitled to relief.

I

History

Self-government existed within what were to become the boundaries of the District of Columbia when Maryland in 1778 and Virginia in 1779 ceded territory to the United States to enable the location of the nations capital on the river Potomac, at some place between the mouths of the eastern branch and Connogocheque.¹ In 1801, Congress passed the Organic Act,² which formed the city into two counties, Washington and Alexandria, and provided for presidentially appointed judicial officers. The Act of May 3, 1802,³ incorporated the city of Washington and created a mayor-council system of government. The bicameral council was popularly elected and the mayor was presidentially appointed. In 1812, the composition of the council was revised (although it remained bicameral), and the mayor was to be elected by both chambers of the council. The Act of May 15, 1820⁴ provided for a popularly elected mayor and bicameral council.

In 1871, the first step backwards from local self-government was taken. Congress, by the Act of February 21, 1871,⁵ unified the entities of Georgetown, the City of Washington and the County of Washington to create a “municipal corporation.” A governor was appointed by the president but only one chamber of the bicameral legislature was popularly elected. Beginning in 1874⁶ and culminating in 1878,⁷ the right of citizens of the District of Columbia to participate in the election of those who would govern them was abolished. The government became three presidentially-ap-pointed Commissioners, one of whom was to be a member of the Corps of Engineers of the U.S. Army. Thus, the situation remained until 1967.

In 1967, using his authority of executive reorganization, the President established a mayor-council government. The mayor and the council were presidentially appointed, subject to Senate confirmation. This form of government continued until the enactment of the Home Rule Act which is at issue in these cases.⁸

II

Legislative Vetoes in the Home Rule Act

The Home Rule Act contains two separate legislative veto provisions — that contained in § 233(c)(1) and that contained in § 233(c)(2). Section 233(c)(1) provides for veto of certain acts of the District of Columbia government (including certain voter approved initiatives and referendums) by Congress adopting “a concurrent resolution disapproving such act.” Section 233(c)(2) provides:

In the case of any such act transmitted by the Chairman with respect to any act codified in Title 22, 23, or 24, such act shall [become effective after a certain time] ... only if ... 1 House of Congress does not adopt a resolution disapproving such act.

It is with respect to the “1 House of Congress” veto provision that we must be concerned.

III

Immigration & Naturalization Service v. Chadha

The issue presented in Chadha as stated in the opinion of the Court was

the constitutionality of the provision in § 244(c)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1254(c)(2), authorizing one House of Congress, by resolution to invalidate the decision of the Executive Branch, pursuant to authority delegated by Congress to the Attorney General of the United States, to allow a particular deportable alien to remain in the United States.

Chadha, supra, 462 U.S. at 923, 103 S.Ct. at 2770.

The Supreme Court found the one-house veto provision to be unconstitutional because it violated the bicameralism and presentment requirements of art. I of the Constitution which provide:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives. [Art. I, § 1.]

Every Bill which shall have passed the House of Representatives and the Senate, shall before it become a Law, be presented to the President of the United States; ... [Art. I, § 7, cl. 2.]

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations, prescribed in the Case of a Bill. [Art. I, § 7, cl. 3.]

The Court held that all legislative acts by Congress must be presented to the President after bicameral passage before becoming law. “The President’s role in the lawmaking process also reflects the Framer’s careful efforts to check whatever propensity a particular Congress might have to enact oppressive, improvident, or ill-considered measures.” Chadha, supra, 462 U.S. at 947-48, 103 S.Ct. at 2782-83. The Court pointed out that the bicameral requirement was of no less importance and it would help insure that legislative measures had been carefully considered. Id. 462 U.S. at 948-49, 103 S.Ct. at 2783.

The Chadha holding is broad and sweeping and it undoubtedly invalidates most, if not all, legislative veto provisions enacted by Congress. See Chadha, supra, 462 U.S. at 959, 103 S.Ct. at 2788. (Powell, J., concurring), and, id. at 967, 103 S.Ct. at 2792 (White, J., dissenting). It is its impact on the Home Rule Act to which we now turn.

IV

Applicability of Chadha to the Home Rule Act

Admittedly every action taken by Congress is not legislative. The determining factor is not the form of the action but whether it is legislative in character. Chadha, supra, 462 U.S. at 952, 103 S.Ct. at 2784. On the issue presented in Chadha, the Court found the use of the one house veto to be essentially legislative in purpose and effect. This legislative character was demonstrated in Chadha by the fact that Congress could not have required the Attorney General to deport Chadha, absent the legislative veto provisions, unless it passed separate legislation requiring deportation. Id. at 952-53,⁹ 103 S.Ct. at 2784-85.

Likewise, the powers involved in the Home Rule Act veto provision are legislative in character, effect and fact. Absent the veto provision, once the Council of the District of Columbia and the Mayor have properly exercised their delegated powers to promulgate new sections of the District of. Columbia Code, Congress could not have overridden these new sections of the Code without passing legislation (which was presented to the President) for that purpose. Thus the one house veto in the Home Rule act is the same for all relevant purposes as the one house veto in Chadha. It is just as constitutionally defective for not meeting the requirements of Art. I.

It has been suggested that when Congress legislates for the District of Columbia it need not meet the Art. I requirements due to the special relationship of Congress to the District of Columbia and its plenary power over it.¹⁰

It is true that “the powers granted [to Congress over the District] are obviously different in kind from the other broad powers conferred to Congress: Congress’ power over the District of Columbia encompasses the full authority of government, and thus, necessarily, the Executive and Judicial powers as well as the Legislative.” Northern Pipeline Construction Co. v. Marathon Pipeline Co., 458 U.S. 50, 76, 102 S.Ct. 2858, 2874, 73 L.Ed.2d 598 (1982). This statement does no more than point out that with regard to the District of Columbia, Congress sits with full authority akin to a state legislature. “Congress ‘may exercise within the District all legislative powers that the legislature of a State might exercise within the State, ... so long as it does not contravene any provision of the Constitution of the United States.’ ” Palmore v. United States, 411 U.S. 389, 397, 93 S.Ct. 1670, 1676, 36 L.Ed.2d 342 (1973) (citation omitted). However, Congress’ position as a “state legislature” does not exempt it from following the “single, finely wrought and exhaustively considered, procedure” as required in Art. I. Chadha, supra, 462 U.S. at 951, 103 S.Ct. at 2784.

State legislatures are not required to meet the requirements of Art. I of the Constitution of the United States. However, just as the state legislatures must follow the procedures of bicameralism and presentment when required by the state constitution,¹¹ Congress, which is governed by the United States Constitution, must follow the demands of Art. I. It is also not persuasive that Congress was delegated “exclusive” power to legislate for the District of Columbia in Art. I, § 8 cl. 17. “[I]t is clear from the history of the provision that the word ‘exclusive’ was employed to eliminate any possibility that the legislative power of Congress over the District was to be concurrent with that of the ceding states.” District of Columbia v. Thompson Co., 346 U.S. 100, 109, 73 S.Ct. 1007, 1012, 97 L.Ed. 1480 (1953).

The plenary power of Congress over the District of Columbia is incapable of saving the veto provision. The Supreme Court has said that “ ‘over no conceivable subject is the legislative power of Congress more complete than it is over’ the admission of aliens.” Fiallo v. Bell, 430 U.S. 787, 792, (1977). Yet, in Chadha, the Court found that this plenary power could not overcome the need for Congress to follow bicameral and presentment procedures of Art. I procedures when exercising plenary power through legislation. The role of the President in the legislative process was discussed in Chadha.

It establishes a salutary check upon the legislative body; calculated to guard the community against the effects of faction, precipitancy, or of any impulse unfriendly to the public good which may happen to influence a majority of that body.... The primary inducement to conferring the power in question upon the Executive is to enable him to defend himself; the secondary one is to increase the chances in favor of the community against the passing of bad laws through haste, inadvertence, or design. The Federalist No. 73 [] at 458 [H. Lodge ed. 1888] (A. Hamilton).

Chadha, supra, 462 U.S. at 948, 103 S.Ct. at 2783. This provision has particular relevance to the District of Columbia whose citizens have no voting representation in either House of Congress.

There are only four provisions in the Constitution which allow one House of Congress to act with force of law not subject to the bicameral and presentment requirements of Art. I: (a) the House of Representatives alone was given the power to initiate impeachments. Art. I, § 2, cl. 2, (b) the Senate alone was given power to conduct trials following impeachment on charges initiated by the House and to convict following trial. Art. I, § 3, cl. 5; (c) the Senate alone was given final reviewable power to approve or to disapprove presidential appointments. Art. II, § 2, cl. 2; and (d) the Senate alone was given unre-viewable power to ratify treaties negotiated by the President. Art. II, § 2, cl. 2.

“Clearly when the Draftsmen sought to confer special powers on the House, independent of the other House, or of the President, they did so in explicit, unambiguous terms.” Chadha, supra, 462 U.S. at 955, 103 S.Ct. at 2786. (footnote omitted). The action taken by Congress in exercising the one house veto provision is not authorized by any of these exceptions. We find the one house of Congress legislative veto provision in the Home Rule Act unconstitutional.¹²

V

Severability

Having held the one-house veto in the Home Rule Act unconstitutional, we must next determine whether the unconstitutional provision can be severed from the remainder of the Home Rule Act or whether the unconstitutional provision is unsevera-ble and thus the Home Rule Act or portions thereof must fall.

In Chadha, the Court reaffirmed the doctrine enunciated in Buckley v. Valeo, 424 U.S. 1, 108, 96 S.Ct. 612, 677, 46 L.Ed.2d 659 (1976), and Champlin Refining Co. v. Corporation Comm’n, 286 U.S. 210, 234, 52 S.Ct. 559, 567, 76 L.Ed. 1062 (1932), that invalid provisions are to be severed unless it is “evident” that without those provisions, the legislature would not have enacted the remaining provisions. Chadha, supra, 462 U.S. at 931-32, 103 S.Ct. at 2774. While the Court recognized that such an inquiry is sometimes an elusive one, it recognized a presumption of severability where the remaining provisions, standing alone, are “fully operative as a law.” Id. at 934, 103 S.Ct. at 2775 (quoting Champlin Refining Co. v. Corporation Comm’n, supra, 286 U.S. at 234, 52 S.Ct. at 564). As the Court has stated in this context, the “cardinal principal of statutory construction is to save and not to destroy.” Tilton v. Richardson, 403 U.S. 672, 684, 91 S.Ct. 2091, 2098, 29 L.Ed.2d 790 (1971) (plurality opinion), quoting NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30, 57 S.Ct. 615, 621, 81 L.Ed. 893 (1937). As applied to these cases, the issue is whether absent the one house veto, Congress would have refused to pass the Home Rule Act.¹³

The Home Rule Act does not contain a severability clause. However, as the Supreme Court has held, “the ultimate determination of severability will rarely turn on the presence or absence” of such a clause. United States v. Jackson, 390 U.S. 570, 585 n. 27, 88 S.Ct. 1209, 1218 n. 27, 20 L.Ed.2d 138 (1968). Rather, the issue remains one of “legislative intent, but the presumption is in favor of severability.” Regan v. Time, Inc., — U.S. -, 104 S.Ct. 3262, 3269, 82 L.Ed.2d 487 (1984).

When we examine the purposes of the Home Rule Act, we have no doubt that the Act, minus the one-house veto, remains fully operative as a law. Congress stated as among its primary purposes its intention: (1) to “grant to the inhabitants of the District of Columbia powers of local self-government;” and (2) “to the greatest extent possible, consistent with the constitutional mandate, relieve Congress of the burden of legislating upon essentially local District matters.” D.C.Code § 1-201 (1981), See McIntosh v. Washington, 395 A.2d 744, 753 (D.C.1978). These purposes continue to be served absent the veto provision. The invalidity of the one-house veto does not remove congressional oversight. The ultimate authority to legislate for the District of Columbia is vested in the Congress by art. I, § 8, cl. 17 of the Constitution. The fact of this ultimate authority is reflected in D.C.Code §§ l-201(a), 206 (1981). D.C.Code §§ l-233(c)(l) and (c)(2) provide for a legislative day layover of 30 days in Congress of any enactment by the local government in order to permit Congress to exercise its ultimate authority. And as appellant Cole says:

Moreover, the Act contains numerous controls over self-government that would remain fully intact and operative after severance of the offending clause containing the one-house veto provision: ultimate authority over the District’s budget; substantive limitations on the council’s legislative authority; federal auditing of the District’s accounts and operations; federal authority over the composition, structure, and jurisdiction of the local judicial system; Presidential appointment of local judges with the advice and consent of the Senate; federal planning agency review of local planning decisions; protection of a federal enclave of core buildings, monuments and grounds, excepted from the Act; Presidential control over the police in emergency situations; Congressional review of Charter amendments.

Brief for Appellant Cole at 40 n. 16 (citations omitted).

We next turn to the legislative history. Given the presumption in favor of sever-ability, the burden is upon the party urging unseverability to establish that the veto provision “was so essential to the legislative purpose that the statute would not have been enacted without it.” Consumers Energy Council of America v. FERC, 218 U.S.App.D.C. 34, 54 n. 70, 673 F.2d 425, 445 n. 70 (1982), summarily aff'd sub nom. Process Gas Consumers Group v. Consumer Energy Council of America, 463 U.S. 1216, 103 S.Ct. 3556, 77 L.Ed. 1402 (1983).¹⁴ Put another way, a party urging unseverability must establish that excision of the one-house veto would contradict the intent and purpose of Congress. The mere presence of debate, albeit extended and sometimes heated, cannot provide the evidence to direct a finding of unseverability. See Gulf Oil Corp. v. Dyke, 734 F.2d 797, 804 (Temp.Emer.Ct.App.1984); EEOC v. Hernando Bank, Inc., 724 F.2d 1188, 1190-91 (5th Cir.1984). The District of Columbia contends:

The presumption in favor of severability applies with particular force to an invalid congressional veto provision. Such a provision, is by definition, only a procedural means to forward a substantive goal. See Note, Severability of Legislative Veto Provision, A Policy Analysis 97 Harv.L.Rev. 1182, 1196 (1984). (“The legislative veto is a procedural device that cannot stand by itself: it must always be attached to some substantive legislation.... [T]he veto provision is merely an appendage to a substantive law_”). As such, it is presumptively subsidiary to the substantive ends it was intended to foster. Therefore, it has been argued,

the courts should sever veto provisions when doing so frustrates only the subsidiary policy of congressional control. If Congress decides that the statute should not survive without its veto provision, Congress is free to repeal the statute.

Id.

The same point is clear from Chadha itself. For, the Court specifically stated that an unconstitutional provision is “presumed severable if what remains is ‘fully operable as a law’ ”, 462 U.S. at 934, 103 S.Ct. at 2775, quoting Champlin Refining Co. v. Corporation Commission, supra; 286 U.S. at 234, 52 S.Ct. at 564. The Court, in deciding to sever the veto provision, concluded that the statute was “fully operative” because “Congress’ oversight of the exercise of this delegation is preserved since all such [exercise] * * * will continue to be reported to it” and, therefore, the statute “survives as a workable administrative mechanism without the one-House veto.” Id. 462 U.S. at 934-35, 103 S.Ct. at 2775-76. [sic]

Brief of Intervenor, District of Columbia at 25.

Appellant Pee basically advances three arguments in favor of unseverability: (1) differential methods of Congressional oversight contained in the Home Rule Act; (2) the absence of a severability clause and the significance thereof; and (3) legislative history showing the special concerns of Congress with the criminal law of the District of Columbia.¹⁵

Pee points out that the Home Rule Act itself contains three different methods of congressional oversight. D.C.Code § 1-205 (1981) provides that amendments to the Charter of the District of Columbia become effective after passage by the Council, approval by the voters in a referendum, and approval by a concurrent resolution of Congress. Acts not involving amendments to the criminal law, says Pee, are subject to a two-house veto. D.C.Code § l-233(c)(l) (Supp.1984). In contrast, Pee contends that amendments to the “criminal law” of the District of Columbia are subject to one-house veto pursuant to D.C.Code § 1-233(c)(2) (1981). Pee notes: “No clearer connection on the special limitation of this particular power” (amending the criminal law) “could possibly exist in any statute than the explicit cross-referral of the power to the veto as appears in this section.” Brief for appellant Pee at 21.

Pee’s second argument is centered on the absence of a severability clause in the Act. He points out that the bill passed by the Senate, S. 1435, contained a one house veto over all legislation passed by the Council (except for matters previously within the power of the prior Commissioner form of government to enact); and a severability clause. The House bill which passed, H. 9682, contained no veto provision, no sever-ability clause and no grant of authority to the Council in the area of criminal law. Pee further points out that the bill reported out by the Conference Committee and as ultimately enacted contained authorization for the local government to enact criminal laws, contained a one-house veto over such criminal laws, and had no severability clause. He contends that this indicates a compromise between the Senate and House conferees that granted to the local government power to enact criminal laws only if they were subject to a one-house veto and that the absence of a severability clause was intentional to insure that if the one-house veto was invalid, then the grant of criminal law authority was also invalid.

Pee contends that the legislative history of the act buttresses his contentions. He first traces the evolution and passage of the Senate bill. He points to the Senate Report which says that “the ‘bill further insures Congressional supervision of the District’ by authorizing a legislative veto. ‘[T]his type of veto of Council action will insure to the Congress the continued ultimate control of the affairs of the District.’ ” Legislative History, supra, at 2726. He further points to floor debate by opponents of granting criminal law authority to the local government. Specifically he cites several attempts to amend the bill by Senators. Senator William Scott of Virginia referred to the preconstitutional riots that he contended led to the constitutional provision vesting exclusive legislative control of the District of Columbia in the Congress. U.S. Const, art. I, § 8, cl. 17. Constitution of the United States. An amendment offered by Senator Scott to transfer control of the District of Columbia prison at Lorton, Virginia, to federal control was defeated. Senator Norris Cotton of New Hampshire, a supporter of home rule, proposed an amendment to authorize the President to appoint the District of Columbia Chief of Police. Senator Cotton was of the view that this was necessary to insure the safety of members of Congress and the other branches of federal government. This amendment was defeated.

Pee next turns to the legislative history of the House bill. The Committee on the District of Columbia reported H.R. 9682 to the floor. This bill granted broad legislative authority and contained a veto only as to Charter amendments. The minority report by seven committee members stresses public safety concerns as well as concerns that the bill was constitutionally infirm since it made no provisions for a presidential veto. After three days of hearings before the Committee on Rules, the Committee on the District of Columbia prepared a substitute bill. It differed from the prior bill in what Pee contends are seven points relevant to the issues before us: (1) presidential authority over the police in an emergency; (2) a presidential veto was included; (3) Senate confirmation of local judges; (4) no authority over U.S. Attorney and U.S. Marshal’s offices; (5) provision for automatic retention of qualified judges; (6) requirement of a 30-day layover period for congressional review of all enactments by the local government; and (7) prohibition against changes to the criminal code by the local government.

The floor debate in the House, says Pee, centered around two general areas pertinent to these cases: (1) public safety (including crime, police and the judiciary); and (2) federal oversight (including presidential and legislative vetoes as well as general congressional review). A number of members of the House expressed concerns about public safety and federal oversight, among them being the then Minority Leader Rep. Gerald Ford of Michigan, Rep. Ancher Nelsen of Minnesota and Rep. Joel Broyhill of Virginia. A series of amendments were proposed. One, which was adopted, restored to the President authority to nominate judges to the local courts (the Committee bill placed the appointing authority in the Mayor). Rep. Broyhill of Virginia proposed a general one-house veto and a presidential veto. This amendment was supported by Rep. Ancher Nelsen, ranking minority member on the Committee on the District of Columbia, but it was defeated. Also defeated was the substitute bill sponsored by Rep. Nelsen and Rep. Edith Green of Oregon which, according to Pee, was based on the Nelsen Commission’s recommendations. The Nelsen-Green substitute granted narrow powers to the local government and provided for both a presidential and one-house veto. The House thereafter passed the Committee on the District of Columbia’s Substitute Bill with certain amendments. Conferees were appointed by the House and Senate and the Conference Committee met over a five-day period. The bill reported back by the Conference Committee contained legislative authority in the local government to enact criminal laws but only after a two-year wait for the report of the District of Columbia Law Review Commission to be submitted to Congress. The Conference Committee bill also contained a one-house provision as to criminal law and a two-house veto as to all other enactments. This bill also made it simpler proeedurally to obtain a floor vote on a one-house veto than was proeedurally provided for with the two-house veto.

The Conference Committee Report was terse or in the words of Pee “laconic.” It restated the two bills referred to it and set forth the compromises. No explanation was given for any of the specific compromises. During floor debate in the Senate on the Conference Committee Report, Senator Thomas Eagleton, Chairman of the Senate Committee on the District of Columbia, called attention to the differential methods of congressional oversight contained in the bill. Rep. Charles E. Diggs, Jr. of Michigan, Chairman of the House Committee on the District of Columbia, made similar remarks in the . House. Pee particularly points to the following remarks by Rep. Diggs:

In the give and take of this conference report also, Mr. Speaker, we note that some of the strongest feelings on the part of some of us have been set aside. For example, on congressional veto, the Senate was very strong on that and as a matter of fact I think I learned for the first time the real reason the Senate has been able to pass home rule in the past so expeditiously is because it was just felt in the other body that as long as there is a veto apparatus, as long as there is a congressional process to correct what they might consider to be a misaction on the part of a local legislative body, then they were inclined to be generous about it. So the veto was retained in the bill despite some misgivings about it from the self-determination pursuits among us in this body and beyond.

Legislative History, supra at 3050 (emphasis added). Pee asserts:

Chairman Diggs’ trenchant observation is notable for two reasons. First, it alone is sufficient to satisfy the Supreme Court’s “What if” test. There can be no better judge of the importance of the veto to successful home rule than that of the new D.C. Committee Chairman. Leaving the first conference committee on home rule in modern times, he had finally discovered why the Senate had been able to pass bills repeatedly while the House had always been stymied. The secret? Legislative veto.

Brief for appellant Pee at 43.

With the exception of Pee, all the other parties (the United States, Gary and Cole) as well as amici, the District of Columbia and Division IV of the District of Columbia Bar, urge that the legislative veto provision is severable. Among them, they advance a number of arguments, most of which we proceed now to summarize.

In the 24 years prior to the 93d Congress, the Senate had passed seven home rule bills. Most of these bills did not contain a one-house veto.¹⁶ Thus, the Senate history does not show that it considered a legislative veto to be an essential element of a Home Rule Act.

Those urging severability next point us to the legislative history during the 93d Congress. The legislative history of the Home Rule Act as enacted shows that in the over 4,000 pages, there was little discussion of the legislative veto. Since the Senate passed its bill before the House did, we turn first to the legislative history of the Senate bill.

The Senate Report on its bill, S.Rep. 93-219, which points to the one-house veto provision as a means of insuring the ultimate authority of Congress with respect to the District of Columbia, placed no particular emphasis on this provision. Legislative History, supra, at 2726. During floor debate in the Senate, only one Senator made reference to the legislative veto. In summarizing the provisions of the bill, Senator Eagleton listed the one-house veto as a mechanism of insuring congressional oversight. Legislative History, supra, at 2754, 2756-57. However, he emphasized the central purposes of the bill as being (1) to relieve Congress of the burden of legislating for the District of Columbia, and (2) to restore self-government to the residents of the District. As he said:

Mr. President, more is at stake than the local matters previously recited, because, as is reflected in S.1435, the very essence of local government will be mandated and legislated by this bill, once enacted into law, so that an elected may- or and an elected city council can make the vital decisions that affect the destinies of three-quarters of a million American citizens.

Legislative History, supra, at 2755.

Senator Charles Mathias, the ranking minority member of the Senate Committee on the District of Columbia, spoke in a similar vein. After reciting the history of home rule in the District of Columbia since its inception, he said:

The passage of this bill would restore local self-government to the Capital and would return to the citizens of the District of Columbia, after far too long a time, the basic democratic privileges which the citizens of every village, every town, every city, every county, every State now enjoy.

Let me emphasize the word “return,” because home rule is nothing novel for the District of Columbia. There was a Mayor of Washington, elected by the people. There was a City Council, elected by the people. In fact, in the very earliest days, there was more than one, because each of the various small communities that had existed prior to the establishment of the District of Columbia had its own elected municipal officials.

So we would merely be reestablishing the grassroots democracy which existed when the Federal Government acquired the immediate authority for the government of this area.

Legislative History, supra, at 2758.

We now turn to the proceedings in the House on H.R. 9682. As reported out by Committee, the Council was given jurisdiction over criminal laws, inter alia, and there was no provision for legislative veto of laws passed by the Council. Legislative History at 1243, 1351, 1476. However, § 303(b) of H.R. 9682 did provide for a one-house veto of amendments to the Charter. In the dissenting report, signed by seven members of the Committee, those who opposed H.R. 9682 asserted that giving a one-house veto over Charter Amendments unconstitutionally deprived the President of his veto power guaranteed by the presentment clause of art. I of the Constitution. These members foreshadowed the constitutional issue decided by the Supreme Court in Chadha. Thus, says Cole, “[i]t is hard to imagine that any member of the House viewed a dubiously constitutional provision as the sine qua non of the Act”. Brief for appellant Cole at 42. The proponents of severability also emphasized the lack of reference to the legislative veto in the three days of Hearings before the Committee on Rules, Legislative History, supra, at 1745-1842, and the subsequent defeat on the floor of the House of the Broy-hill and Green-Nelsen substitutes, both of which contained one-house veto provisions.

As previously noted, see supra, at 18, the Committee on the District of Columbia introduced a substitute which, among other changes, deleted the delegation of authority to modify certain statutes pertaining to criminal law. Rep. Brock Adams of Washington, Chairman of the Subcommittee on Government Operations of the Committee on the District of Columbia, the subcommittee which had considered the Home Rule question, stated that the deletion of authority to the Council with respect to certain criminal statutes was to permit a law revision commission time to study and report on criminal statutes. Legislative History, supra, at 2117. Congress did in fact create the District of Columbia Law Revision Commission and prohibited modification by the Council of Titles 22, 23 and 24 for two years (later extended to four years).

Those urging severability, and particularly amicus, Division VI, District of Columbia Bar, contend that, given the difference in the Senate and House bills, the most relevant legislative history is that of the Conference Committee and the floor debates in each body on the Conference Committee Report. The Conference Committee Report retained a one-house veto over certain criminal matters as well as the two year moratorium on amendments to certain criminal law provisions. No explanation is contained in the Report for the inclusion of the one-house veto.

When the Conference Report was debated in the Senate, the only reference to the one-house veto is in the remarks of Senator Eagleton where he summarized the differential methods of disapproval of charter amendments, non-criminal statutes, and criminal statutes. Legislative History, supra, at 3114. His emphasis however was upon the plenary authority granted to the local government. Legislative History, supra, at 3113-15. Senator Mathias emphasized the purposes of the bill and general congressional oversight. Legislative History, supra, at 3115. His emphasis was upon the constitutional authority of Congress under art. I and the budget control retained by Congress. Legislative History, supra, at 3116-17. Those urging severability assert that it was this law revision provision which was the “keystone” of any compromise as to criminal law. They say that this is further demonstrated by the legislative history of the District of Columbia Law Revision Act, D.C.Code §§ 49-401 to -405 (1981). Amicus, Division VI of the District of Columbia Bar says:

The connection between the establishment of the Law Revision Commission and the granting of criminal code authority to the District is made clear by the legislative history of the Law Revision Commission Act, which was considered by the same Committee and same Congress that enacted the Self-Government Act.

Identical paragraphs in the reports on the Law Revision Commission Act by the Senate and House committee on the District of Columbia give a detailed explanation of the Conference compromise on the Self-Government Act:

Under the Home Rule Act (Public Law 93-198, approved December 24, 1973), the District Council will receive jurisdiction over the Criminal Code twenty-four months after it takes office in January, 1975.

In the course of Congressional consideration of this legislation, one of the most difficult questions was the issue of granting authority over the criminal sections of the District of Columbia Code. Drafters of the self-government legislation ultimately settled on an arrangement calling for the District of Columbia Council to acquire authority over the criminal sections of the District of Columbia Code two years after taking office in January, 1975. During the interim, it was understood, a Law Revision Commission would be created by the Congress, which would have as one of its responsibilities reviewing and recommending reforms of the Codes criminal sections.

S.Rep. No. 93-1076, 93d Cong., 2d Sess. 2 (1974); H.R.Rep. No. 93-924, 93d Cong., 2d Sess. 2 (1974). Similar statements about the basis for the Conference compromise in the Self-Government Act were made on the floor of the House. See 120 Cong.Rec. 7974 (1974) (remarks of Cong. Diggs). The bill was passed by the Senate without debate. See 120 Cong.Rec. 27423 (1974).

Brief of Amicus, Division VI, D.C.Bar at 13.

With respect to the House consideration of the Conference Committee Report, the proponents of severability point us particularly to two “Dear Colleague Letters” from Rep. Diggs, one dated December 10, 1973, and one dated December 11, 1973. In the first letter, Rep. Diggs says the House view prevailed on almost every instance in Conference. He sets forth twelve objectives that the Conference Report accomplishes, the first of which was: “Reserves the right of Congress to legislate at any time on any subject_” Legislative History, supra, at 3041. No mention is made of a legislative veto.

The second letter reads as follows:

U.S. House of Representatives, Committee on the District of Columbia, Washington, D.C., December 11, 1973

Dear Colleague: The Conference Report on the District of Columbia Home Rule Bill, S. 1435, is scheduled for action on the House Floor this week. Faithful to my responsibility, I have been a strong advocate of the House passed provisions and prevailed in almost every instance. There is one particular provision which was included in the House passed bill which was modified by the Conference. I wish to discuss that particular provision and why the Conference Report varies, from the House passed bill.

The House passed bill prohibited the Council from making any changes in Titles 22, 23 and 24 of the D.C.Code. It was felt that since the District criminal code has not been substantially reviewed and revised for more than seventy years, this provision would hamper constructive revision of the criminal code. Since the District Committee is expected to act in the very near future on H.R. 7412, a bill which I introduced to create a law revision commission for the District, the Conference compromise was adopted. The law revision commission will be given a mandate to turn initially to revision of the D.C.Criminal Code and report its recommendations to the Congress. The Congress will then have a chance to make the much needed revision of the criminal code. This should take no longer than two years. Subsequent to that action, it seems appropriate and consistent with the concept of self-determination, that the Council be given the authority to make whatever subsequent modifications in the criminal code as are deemed necessary.

Therefore, under the Conference Report, the Council is prohibited from making changes in the criminal code for two years after it takes office. Subsequent to that, the Council may make changes subject to a veto by either House of Congress within 30 days after the transmittal of the act. Additionally, any Member may bring such disapproving resolutions.

I feel that this procedure sets the best combination for protecting the Federal interest while keeping the local Council involved in the process of making the laws which will govern.

Sincerely,

Charles C. Diggs, Jr.

Chairman, Committee on the District of Columbia

Legislative History, supra, at 3041-42.

Finally, the District of Columbia argues that the action of the 98th Congress in October 1984, in adding a severability clause, Pub.L. No. 98-473, signed by the President on Oct. 12, 1984,

at a time when the issue of severability has been raised prominently in litigation both in the District of Columbia Courts and the United States District Court for the District of Columbia, is significant when it come[s] to the issue of construing the original Self-Government Act. This is so because the amendment declares the intent of the earlier law to be severable, particularly on the specific controversy at issue in these cases. F.H.A. v. The Darlington, Inc., 358 U.S. 84, 90, 79 S.Ct. 141, 145, 3 L.Ed.2d 132 (1958); Glidden Company v. Zdanok, 370 U.S. 530, 541, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1961); May Dept. Stores Co. v. Smith, 572 F.2d 1275, 1277, 1278 (8th Cir.1978). Cf. also United States v. Tapert, 625 F.2d 111, 120-21 (6th Cir.1980) (An amendment to existing law does not support an inference that the prior meaning of the statute was inconsistent with the amendment.)

Supplemental Memorandum of Intervenor, District of Columbia, at 2.

We note that in the legislative history of the Senate action on Pub.L. No. 98-473, Senator Mathias stated:

[T]he amendment will add a severability clause to the Home Rule Act. The Governmental Affairs Committee does not intend to infer anything concerning the intent of Congress which enacted the Home Rule Act concerning severability. However, since the court in Chadha indicated that the existence of a severability clause would be one yardstick by which it would measure whether Congress would have enacted legislation absent defective provisions, the Governmental Affairs Committee believes its inclusion in the act is beneficial for future purposes.

No similar statement was made during House consideration on this enactment. Indeed, Rep. Conte of Massachusetts, in reporting the Conference Committee's action on what became Pub.L. No. 98-473, said:

Third, the conference agreement includes an authorization bill to correct the deficiencies in the District Home Rule Act created by the Supreme Court’s Chadha decision concerning the legislative veto.... [T]his provision is designed to remove the cloud created by the Chadha decision relative to the legislative veto.

Cong.Rec. H11974 (Oct. 10, 1984).

In our view, while the fact that the Home Rule Act includes a one-house veto tells us that Congress deemed it to be a desirable provision, the legislative history falls far short of making “evident” that without it, the Congress would not have passed the Home Rule Act. Recognizing as we must that the determination of what Congress would have done in a “what if” situation is, in the words of the Supreme Court, an “elusive inquiry,” Chadha, supra, 462 U.S. at 932, 103 S.Ct. at 2774, we are satisfied that the legislative history affirmatively shows that the one-house veto was not central to the passage of the Home Rule Act. We are satisfied that while Congress was indeed concerned with its ultimate legislative authority over the District of Columbia, it did not deem a one-house veto provision central to the exercise of that authority. Likewise, while it is apparent that a number of members of both the Senate and the House had particular concerns about public safety and local authority to amend the criminal code, the legislative history leaves it far from “evident” that a majority of either the House or the Senate would have rejected the Home Rule Act if they knew the one-house veto would be declared invalid, as the minority report of the House Committee on the District of Columbia prophetically foretold.

In urging unseverability, Pee places great emphasis on the statement of Rep. Diggs concerning the Senate’s sentiment on a one-house veto. See supra, pp. 20-21. We think that when viewed in conjunction with the Senate history of previous passage of home rule acts not containing a legislative veto, supra p. 21, as well as the two “Dear Colleagues” letters of Rep. Diggs, supra, pp. 27-30 neither of which makes reference to the legislative veto and the latter of which emphasizes the centrality of the D.C.Law Revision Commission’s role in proposing to Congress a comprehensive rewriting of the criminal statutes of the District of Columbia, Pee’s reliance on Rep. Diggs’ statement does not withstand scrutiny.

Further, “Congress’ desire to retain a veto in this area cannot be considered in isolation but must be viewed in the context of Congress’ ” desire to provide self-government to the residents of the District of Columbia and to rid itself of the burden of legislating upon essentially local matters. Chadha, supra, 462 U.S. at 934, 103 S.Ct. at 2775. In this regard, the congressional intents appear quite similar to that which the Supreme Court found with respect to private immigration bills in Cha-dha. Id.

As we review the legislative history, we are satisfied that it was the myriad of other controls, such as the plenary authority of Congress under art. I of the Constitution, control over the budget, other limitations on the authority of the Council and local government which were contained in the House Committee on the District of Columbia Substitute, see supra pp. 13-14, 18, and which were included in the Home Rule Act as passed by Congress, as well as the limitation with respect to modification of Titles 22, 23, and 24, of the D.C.Code pending the report to Congress by the D.C.Law Revision Commission which were viewed by Congress as the central mechanisms insuring appropriate federal oversight.

We agree with Cole and the United States that it is hard to imagine that a majority of either the Senate or the House viewed a “dubiously constitutional provision as the sine que non of the Act.” Supra, at 826; Brief for appellee United States in Nos. 83-196, and 84-703 at 19-20. While it is not necessary to our conclusion in this regard, we note the action of the 98th Congress in adding a severability clause, supra, at 18, in the context of the views quoted from Note, Severability of Legislative Veto Provision: A Policy Analysis, 97 Harv.L.Rev. 1182, 1196 (1984), supra, at 15, and repeated here:

The courts should sever veto provisions when doing so frustrates only the subsidiary policy of congressional control. If Congress decides the statute should not survive its veto provision, Congress is free to repeal the statute.

We reject Pee’s suggestion that we conclude that without the legislative veto, Congress would have rejected home rule because of “a distrust of the Democratic, liberal and largely black government that would result.” Reply Brief for appellant Pee at 3.¹⁷ Rather, we agree with the United States when it says:

Thus as one commentator has concluded after close examination of the legislative history:

[T]he time seemed to be right for passage of home rule legislation. To argue that inability to include a legislative veto over Council actions would have scuttled the entire legislation might be overstating the perceived potency of that device. The history of use of the veto mechanism in home rule proposals, the presence of other limitations in the Act, and the political climate at the time of congressional consideration of the Act would seem to make it far from evident that Congress would have refused to delegate legislative powers to a District of Columbia legislature if told at the time it could not include the legislative veto.¹⁸

Brief for appellee United States at 20.

VI

Retroactivity

The Supreme Court in Great Northern Ry. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360 (1932), continuing with such cases as Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), and concluding with such cases as United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982), and Solem v. Stumes, 465 U.S. 638, 104 S.Ct. 1338, 79 L.Ed.2d 579 (1984), discussed the issues involved in whether to apply a new ruling retroactively, prospectively or in a mix of the two. We have engaged in a similar analysis in our en banc opinion in Mendes v. Johnson, 389 A.2d 781 (D.C.1978). Recognizing as we do that our ruling on the Chadha issue in these cases is a constitutional one, we also recognize that we should honor the decisions of the Supreme Court on the issue of retroactivity versus prospectivity of constitutional holdings.

The general rule for determining retroac-tivity of constitutional holdings was set forth in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), whose principles were recently reaffirmed in Solem v. Stumes, supra. In Stovall, the Court set forth the formulation as follows:

[T]he criteria guiding resolution of the [retroactivity] question implicate (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.

Id. at 297, 87 S.Ct. at 1970.

And as the court said in Stumes, “[c]om-plete retroactive effect is most appropriate where a new constitutional principle is designed to enhance the accuracy of criminal trials.” Id. 104 S.Ct. at 1342. The Court recognized that the question of enhancing the “accuracy of criminal trials” is a matter of degree and probabilities. Id. And “[s]uch probabilities must in turn be weighed against the prior justified reliance upon the old standard and the impact of retroactivity upon the administration of justice.” Stovall, supra, 388 U.S. at 298, 87 S.Ct. at 1970. With these principles in mind we turn to our analysis of the present cases.

The Stovall-Stumes test is the appropriate one to apply in the present cases.¹⁸ It is true that Stovall and Stumes each dealt with a “new rule” implementing constitutional rights,¹⁹ whereas Chadha purports to .return to an abiding constitutional principle from which Congress has strayed in the last fifty-two years by enacting legislation authorizing the legislative veto. The distinction is one which directly affects the “reliance” interest as a countervailing concern to those values served by retroactive application. When a rule is “new,” the reliance of law enforcement authorities upon the “old” practice carries a common sense presumption of reasonableness: unless the “new” rule had been foreshadowed, no one had reason to question the old. See Stovall v. Denno, supra, 388 U.S. at 299-300, 87 S.Ct. at 1971. On the other hand, one might argue that, when the disapproved practice is itself the “novel” one, the reliance interest is arguably slight, because everyone concerned should have realized that the practice was invalid.

With the legislative veto, however, the practice was by no means transparently unconstitutional. The issue has divided scholars, courts, attorneys general, and the legislative and executive branches of the federal government. INS v. Chadha, 462 U.S. 919, 976 & n. 12, 103 S.Ct. 2764, 2797 n. 12, 77 L.Ed.2d 317 (1983) (White, J., dissenting). Congress had employed the legislative veto for over fifty-two years, in almost 200 pieces of legislation, covering areas ranging from national defense, to hazardous waste, to self-government of the District of Columbia. See Chadha, supra, 462 U.S. at 1003-13, 103 S.Ct. at 2811-2816. (Appendix to dissenting opinion of White, J.). A practice so pervasive was at least cloaked with a solid enough patina of constitutionality to make reliance upon its probity a reasonable course.

Moreover, even when a rule appears “new” in the sense of ordering a new practice or prohibiting an old one, it must be premised upon a right already implicitly existing within the Constitution. The circumstances in the “Chadha” cases before us are, then, analogous to those in Stovall and Stumes where the retrospectivity of a new constitutional rule was considered. And when the constitutional principle involved does not go to the heart of the truth-finding function, but is instead “a prophylactic rule, designed to implement pre-existing rights,” the Supreme Court generally has not applied it retroactively. Stumes, supra, 104 S.Ct. at 1343. Cf. Linkletter v. Walker, supra.

Here, the “truth-determining process at trial” is not at all the issue. The elements of the sexual offenses of which their respective juries convicted appellants Gary and Cole are the same under D.C.Code § 22-2801 (1981) and the S.A.R.A. of 1981. At no time had the District of Columbia intended that rape and carnal knowledge be lawful. Compare United States v. United States Coin & Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971). These sentences are within the permissible range of both statutes. Against their interests in reconsideration of their sentences under the sentencing provisions of the S.A.R.A. of 1981, we must balance reliance and burden on the administration of justice. Stovall, supra, 388 U.S. at 298-99, 87 S.Ct. at 1970-71.

Reliance on the continuous effectiveness of D.C.Code § 22-2801 has been total and has been eminently reasonable. In October 1981, no one challenged the House’s legislative veto of the S.A.R.A. of 1981. The United States Attorney would have been derelict in his duty if he did not prosecute rape and carnal knowledge under some statute; because no contest was made over the legislative veto, it was reasonable to apply § 22-2801. The District of Columbia government never gave notice to potential criminal defendants that it considered the S.A.R.A. of 1981 to be in force,²⁰ and that Act never formed the basis of a single prosecution. Under the Supreme Court’s well-established rule of criminal law, reliance that is both reasonable and extensive points toward a holding against retroactivity for a rule, as here, that does not directly affect the truth-finding function at trial. Stumes, supra, 104 S.Ct. at 1345 (when decision of the Supreme Court has not been “clearly” or “distinctly” foreshadowed, the reliance interest is a compelling factor against retroactivity).

We have no way of knowing how many defendants would be entitled to resentenc-ing if we were to give our decision either partial or total retroactiveness. We are sanguine, however, that few, if any, would receive lesser sentences. For example, in sentencing Cole, the trial judge inquired of counsel whether he could moot the Chadha issue by sentencing the defendant to no more than would have been authorized by the S.A.R.A. of 1981. Like Cole, Gary was sentenced to no more than would have been authorized by that Act. We are buttressed in our view that few, if any, would receive lesser sentences given the various provisions of the D.C.Code for sentence enhancement. See, e.g., D.C.Code § 22-104 (1981) (enhanced sentence for second convictions), D.C.Code § 22-104(a) (1981) (enhanced sentence for third felony), and D.C. Code § 22-3202 (1981) (enhanced sentence for crimes of violence while armed).

On the other hand, having to conduct a significant number of resentence hearings would place a significant burden on the administration of justice in the Superior Court. The brief of the United States indicates that there have been approximately 94 convictions for rape and carnal knowledge alone since October 5, 1981, and that as of August 1984, approximately 34 such prosecutions were pending.

Second, to give any degree of retroactivity to our holding, thereby deciding that the S.A.R.A. of 1981 constituted the law of the District of Columbia from its putative effective date to its putative repeal by Pub.L. No. 98-473, would require us to ignore the possibility that, if Congress had known the one-house veto was invalid, the S.A.R.A. of 1981 might have been overturned in a manner consistent with the bicameralism and ■ presentment provisions of article I.

In sum, when we consider the purpose of the constitutional rule we announce in this opinion, the elements of reliance and the effect on the administration of justice as commanded both by Stovall v. Denno, supra, and our en banc holding in Mendes v. Johnson, supra, we conclude that our decision should have prospective effect only, from the date of our decision.

VII

Other Contentions

A) Cole

Cole contends that he is entitled to be resentenced before another judge because, he says, the trial judge misperceived the evidence leading to his conviction. We find no merit to this contention. See Brown v. United States, 610 F.2d 672 (9th Cir.1980) (reviewing court will not override trial court’s statement that it did not rely on prior conviction later shown to be invalid in sentencing the defendant). Accord Lawary v. United States, 599 F.2d 218 (7th Cir.1979).

B) Gary

Gary asserts that the trial court committed reversible error in denying his request for an instruction on the need for corroboration as to rape and carnal knowledge. He further argues that the trial court committed reversible error in denying his request to be personally present at the bench during voir dire of individual jurors there.

1. Corroboration

The evidence showed that Gary raped the complainant, a 16-year-old female. Gary’s request for a corroboration instruction was denied. He contends this was reversible error under Fitzgerald v. United States, 443 A.2d 1295 (D.C.1982) (en banc), and Arnold v. United States, 358 A.2d 335 (D.C.1976) (en banc).

Much of the history and the pros and cons of the court created rule regarding corroboration was laid out in the majority and dissenting opinions in Fitzgerald, supra. Since the reasons for this court’s holding in Arnold v. United States, supra, where we abolished the requirement for corroboration when a mature female is involved, are equally applicable to all sex offenses, regardless of the sex or age of the victim or perpetrator, we now abolish the requirement entirely.²¹

The constitutional protections provided the defendant are adequate in a sex case and the corroboration requirement no longer serves a useful purpose. Fitzgerald, supra, 443 A.2d at 1308 (Newman, C.J., dissenting), and Arnold, supra, 358 A.2d at 343. The asserted purpose of the corroboration requirement was to support and test the credibility of the complaining witness. There is no reason to distinguish between a mature female and a mature male sex offense victim. Nor is there any logical reason to raise barriers to the jury evaluation of the credibility of a minor in a sex offense where we do not require it in other situations. Courts have too long “discounted reports of sexual attacks by-children.” Fitzgerald, supra, 443 A.2d at 1308 (Newman, C.J., dissenting), quoting Peters, Children Who Are Victims of Sexual Assault and the Psychology of Offenders, 30 Am. J. PSYCHOTHERAPY 398 (1976).

If the trial judge believes that an additional instruction is needed because of unique circumstances, he may give one which stresses the factors to be considered. The following is an example of such an instruction:

The nature of the crime of (crime charged) is such that the substantive evidence presented often consists of the conflicting testimonies of the defendant and the complainant. Because of this fact, you must examine the evidence presented with care and caution.

In addition to proving the credibility of the witnesses, you should consider a number of relevant factors in reaching your decision. These factors may include:

(1) whether there was any delay by the complainant in reporting the incident;

(2) whether the complainant had a motive to falsify charges;

(3) inconsistent or improbable testimony by the witnesses;

(4) evidence of facts and/or inconsistencies which support the complainant’s testimony.

You should not consider any one of these factors as decisive, but rather your decision should be based on the evidence presented. These factors, considered as a whole, should assist you in weighing the evidence before you.

Fitzgerald, supra, 443 A.2d at 1309 (Newman, C.J., dissenting). We conclude “[i]t is long past the time that this court should follow the example of most of the jurisdictions in this country and totally eliminate the last vestiges of this outdated, discriminatory rule.” Id. at 1310 (footnote omitted).²² Corroboration in sex offenses (or where the sexual nature of the touching makes it an assault, see, e.g., Beausoliel v. United States, 71 U.S.App.D.C. 111, 107 F.2d 292 (1939)), is abolished prospectively from the date of this opinion. This now gives the District of Columbia an homogeneous rule with respect to corroboration in sex offenses. See United States v. Sheppard, 186 U.S.App.D.C. 283, 569 F.2d 114 (1977).²³

2. Jury Selection

After the jury selection process began, defense counsel made a request that his client be present at the bench when prospective jurors were being questioned. The trial judge refused this request.²⁴

The judge proceeded with the voir dire and questioned 20 of the 52 prospective jurors at the bench subsequent to defendant’s request. Out of those 20 jurors, the judge sua sponte removed 5 jurors for cause. Two of the other jurors that came to the bench were there accidentally. (Juror No. 225 thought he knew one of the witnesses but after, some questioning it was determined that he was mistaken since the two people were approximately 20 years apart in age. Juror No. 114 approached the bench in response to the judges question, “Did anyone think the law was unfair in this area?” No. 114 stated that he did not know what the law was and had no preconceived notions.)

Out of the remaining 13 jurors, 2 were seated as jurors (Nos. 60 and 90). Juror No. 60 stated at the bench that his home had been burglarized and that his wife had her purse snatched. The court then questioned Juror No. 60 on whether his experiences would prevent him from judging the case fairly based on the facts. He responded “absolutely not.” Neither counsel asked the juror any questions. Juror No. 90 stated at the bench that he had previously testified in the defense of his cousin who was convicted of rape. This cousin was later convicted of second-degree murder but the juror did not participate in that trial. Juror No. 90 spoke twice in open court, once he said he had an uncle who was a lawyer, the next time he spoke to say he was in some type of protection service.

The trial judge erred in not granting appellant’s request to be present at the bench during voir dire. The defendant has a right to be present at all stages of trial, including voir dire conducted at the bench. Boone v. United States, 483 A.2d 1135 (D.C.1984) (en banc), and Robinson v. United States, supra.

Having decided that there was error, we must look at the facts of the case to determine if the error was “harmless beyond a reasonable doubt.” Robinson, supra, 448 A.2d at 856 (citations omitted). We have decided three cases using the “harmless beyond a reasonable doubt” analysis. In two of these, we found the error to require reversal, Robinson v. United States, supra, and Boone v. United States, supra. In one case, we found the error to be harmless beyond a reasonable doubt. Young v. United States, 478 A.2d 287 (D.C.1984).

We believe Young, supra, to be the case whose facts are most similar to the case before us. In Young, the court refused the defendant’s request to be present at the bench. Twelve jurors were questioned at the bench and only two of those were seated on the jury panel. One of the jurors retained stated that his brother was in jail for bank robbery. She stated that this would not affect her decision. Neither counsel questioned her.

The other juror in Young was called to the bench after having failed to reveal his employment as a computer specialist in the police department. He was retained after assuring the judge and defense counsel that his decision would not be affected. The court in Young also stated that the defendant had shown no indication of prejudice and took note of the fact that the defendant had an unused peremptory strike which could have been used on one of the two jurors questioned at the bench if defendant thought there might have been some prejudice from his not being present at the bench. Young, supra, 478 A.2d at 290 & n. 6.

In the case before us, 20 jurors were questioned at the bench including two who were incorrectly there and made no statements that reflected on fitness or the trial. Out of the remaining 18 jurors only two deliberated on defendant’s trial. One of these, Juror No. 90, spoke twice in open court giving appellant some limited opportunity to assess his demeanor.

In this case, as in Young, appellant still had an unused peremptory strike to use against either of these two jurors if appellant had an inkling that the jurors’ presence would be prejudicial. As we have said previously:

While we do not intend our decision to trivialize in any manner the rights protected in Robinson, the facts before us do not indicate that appellant’s immediate presence at the bench during the brief examination of the remaining two jurors would have changed the outcome of the trial.

Under these circumstances, we must conclude that there is no reasonable possibility that the error contributed in any way to appellant’s conviction. See Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967).

Young, supra, 473 A.2d at 291 (citations omitted).

We find that the trial court’s error was harmless beyond a reasonable doubt.

Affirmed.

1 . Act of July 16, 1790, ch. 28, 1 Stat. 130, as amended, Act of March 3, 1791, ch. 17, 1 Stat. 214.

2 . Act of Feb. 27, 1801, ch. 15, 2 Stat. 103.

3 . Act of May 3, 1802, ch. 53, 2 Stat. 195.

4 . Act of May 15, 1820, ch. 104, 3 Stat. 583.

5 . Act of Feb. 21, 1871, ch. 62, 16 Stat. 419.

6 . Act of June 20, 1874, ch. 337, 18 Stat. 116.

7 . Act of June 11, 1878, ch. 180, 20 Stat. 102.

8 . The Home Rule Act provides for an elected mayor and an elected unicameral council.

For a more detailed analysis of the history of the governance of the District of Columbia, see Home Rule for the District of Columbia 1973-1974, Background and Legislative History of H.R. 9056, H.R. 9682 and Related Bills Culminating in the District of Columbia Self-Government and Governmental Reorganization Act (Comm.Print 1974) (House Committee on the District of Columbia 1974) [hereinafter cited as Legislative History]. Newman and Depuy, Bringing Democracy to the Nation’s Last Colony: The District of Columbia Self-Government Act, 24 Am.U. L.Rev. 537, 542 (1975). The foregoing historical summary generally tracks that contained in the latter publication. See abo C. Green, Washington: A Hbtory of the Capital 1800-1950 (1962).

9 . The Supreme Court also took note that the veto was legislative because it affected the rights and duties of people outside the legislative branch. Chadha, supra, 462 U.S. at 952, 103 S.Ct. at 2784. We believe that a fair reading of this means the rights and duties of people outside the national legislative branch, i.e., Congress itself.

10 . See, e.g., United States v. Langley, 112 Wash.D.L.Rptr. 801 (April 23, 1984); United States v. McIntosh, 112 Wash.D.L.Rptr. 789 (April 20, 1984); Brief of Intervenor, District of Columbia.

11 . See State v. A.L.I.V.E. Voluntary, 606 P.2d 769 (Alas.1980); Opinion of the Justices, 121 N.H. 552, 431 A.2d 783 (1981); State ex rel. Barker v. Manchin, 279 S.E.2d 622 (W.Va.1981).

12 . The use of the veto cannot be sanctioned by construing it as an amendment or repeal of the powers delegated in the Home Rule Act. "Amendment and repeal of statutes, no less than enactment, must conform with Art. I." Chadha, supra, 462 U.S. at 954, 103 S.Ct. at 2786 (footnote omitted). Congress has delegated these legislative powers to the Council of the District of Columbia and must abide by that delegation until it is legislatively altered or revoked. Id. at 955, 103 S.Ct. at 2786.

13 . In its Memorandum Opinion and Order in the Cole case, the trial court held that the one-house veto was unseverable but fatally infected only the authority of the District of Columbia government to enact criminal laws. We reject this analysis. The Home Rule Act does not grant separate authority to the Council of the District of Columbia with respect to criminal laws as distinguished from other laws. Rather, the Act generally authorizes the District of Columbia to enact legislation. D.C.Code §§ 1-204, -227 (1981).

14 . The summary affirmance by the Supreme Court was in face of a dissent by Justice White in which he found the one-house veto provision of the Natural Gas Policy Act of 1978 to have been "central" to the passage of the Act. Process Gas, supra, 463 U.S. at 1217, 103 S.Ct. at 3557.

15 . Amicus, Washington Legal Foundation, joins in part of these contentions.

16 . See Legislative History, supra, at 1507-21; see also R. Ehlke, "The Legislative Veto Provision of the District of Columbia Home Rule Act in the Wake of I.N.S. v. Chadha” at 10 (July 5, 1983) (report prepared by the Congressional Research Service of the Library of Congress).

17 . We further hold that Pee is not entitled to relief since the plain language of D.C.Code § l-233(c)(2) (1981), the one-house veto provision, applies only to Titles 22, 23 and 24 while he was convicted of violating D.C.Code § 33-541(a)(1) (1981).

18 R. Ehlke, "The Legal Lanscape After INS v. Chadha: Some Litigation Possibilities," 1983 CRS Review 28, 30.

18 . By its expressed terms, United States v. Johnson, supra, 457 U.S. at 562, 102 S.Ct. at 2594 is limited to the Fourth Amendment context. We recognize, however, that Shea v. Louisiana, — U.S. -, 105 S.Ct. 1065, 84 L.Ed.2d 38 (1985), applied the principles of United States v. Johnson, supra, to direct review of Fifth Amendment claims under Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). We are satisfied that our holding in this case is not inconsistent with the teachings of Shea and Johnson.

19 . Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), held that the constitutional rule announced in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), would apply prospectively. Wade and Gilbert announced the rule that right to counsel applies to pretrial identification proceedings. Solem v. Stumes, 465 U.S. 638, 104 S.Ct. 1338, 79 L.Ed.2d 579 (1984), held that the rule announced in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), applied prospectively. Edwards held that once a suspect has invoked the right to counsel, any subsequent custodial conversation must be initiated by him. See generally Solem v. Stumes, supra, 104 S.Ct. at 1345-46.

20 . We note that the Act was published in the D.C.Register shortly after the Act was transmitted to Congress, but prior to the one-house veto. See 28 D.C.Reg. 3409 (1981). On October 23, 1981, however, the Council published notice in the D.C.Register that the S.A.R.A. of 1981 had not become effective as law because the United States House of Representatives had disapproved that Act "in accordance with § 602(c)(2) of the District of Columbia Self-Government and Governmental Reorganization Act.” 28 D.C.Reg. 4526.

21 . This issue is properly before us. See Arnold, supra, 358 A.2d at 344.

22 .We note that subsequent to our decision in Fitzgerald, the requirement of independent corroboration of the testimony of a child victim in prosecutions brought under Title 22 of the D.C. Code has been legislatively abolished. See D.C. Code § 23-114 (Supp.1985). Had S.A.R.A. taken effect, the requirement of corroboration would have been abolished for all purposes in sex offenses.

23 . We further note that the trial court did not err in refusing to instruct on corroboration given its finding, adequately supported by the record, that the complainant was a "mature female" within the meaning of Fitzgerald and Arnold.

24 . At the time of trial, we had already decided Robinson v. United States, 448 A.2d 853 (D.C.1982).