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Delaying the Start of an Independent Attorney General’s Office is a Terrible Development

“We are engaged in a court battle testing whether the people’s decision to elect their attorney general will be respected by the Council and the Mayor. This fight is about more than any single candidate, or any one election. It is about the fundamental right of the people to chose their own form of government.” – Paul Zuckerberg

As we were preparing this commentary on November 7th, Adams Morgan-based defense attorney Paul Zukerberg (who many will recall was a candidate last year to fill a vacant at-large city council seat and jas now filed as a candidate for the AG position) was in federal court downtown seeking an injunction to prevent the implementation of the recently enacted city council postponement until 2018 of the election for the new position of DC Attorney General.

This delay, earlier narrowly enacted by the council, was tacitly approved by Mayor Gray; rather than signing the bill but not being willing to veto it either, he merely returned it to the council, thus allowing it to take effect following the 30-day Congressional review period.

All this has transpired despite that back in 2010 three-quarters of the voters in that year’s election approved an amendment to the Home Rule Charter to scrap the mayoral-appointed attorney general scheme in favor of giving the citizens the right to vote for this important position, as is already the norm in 43 states, thus ensuring complete independence from the mayor. At the time, voters were disgusted with how Mayor Fenty’s appointed attorney general routinely acted as if he was the mayor’s legal counsel –- all to the detriment of the citizens.

When the voters had the ballot before them what they read was language specifically stating that by approving this change they “would begin voting for the Attorney General in 2014” –- not four years later!

As city council Chairman Phil Mendelson, who strenuously opposed the delay, was quoted by Washington Post columnist on October 24th stated, “An elected attorney general is more likely to be sensitive to community concerns and priorities. . . . We broke faith with the voters.”

It would appear that in taking this action, neither the city council nor the mayor have taken into account what Zuckerberg claims was illegal because the voters’ mandate for electing an attorney general starting in 2014 resulted in a change to the Home Rule Charter, which legally can only be done by the voters or Congress –- not by the city council on its own. Therefore, establishing a new initial election year –- 2018 –- can only be done by the voters approving a different date.

Justification for this four-year delay stated by some council members was, among others, that there is uncertainty with respect to the duties of the Office of the Attorney General. From our reading of the 2010 enacted enabling law, District of Columbia Act 18-351, it does not appear to us that this is a valid objection. The relevant sections are as follows:

Sec. 101. Duties of the Attorney General for the District of Columbia.

“(a)(1) The Attorney General for the District of Columbia . . .  shall have charge and conduct of all law business of the said District and all suits instituted by and against the government thereof, and shall possess all powers afforded the Attorney General by the common and statutory law of the District and shall be responsible for upholding the public interest. The Attorney General shall have the power to control litigation and appeals, as well as the power to intervene in legal proceedings on behalf of this public interest.

“(2) The Attorney General shall furnish opinions in writing to the Mayor and the Council whenever requested to do so. . . .

“(b) The authority provided under this section shall not be construed to deny or limit the duty and authority of the Attorney General as heretofore authorized, either by statute or under common law.”

If, however, it is the above quoted sub-clause “(b)” that is giving rise to this stated concern about presumed ambiguity, then, rather than tossing out the baby with the bathwater, as it were, for four years, let the council revise that sub-clause to remove whatever ambiguities it is believed are contained therein. But don’t use this as an excuse to trample over the will of the electorate.