Court of Appeals Orders D.C. Attorney General Election to Proceed in 2014

June 9, 2014

On June 4 the District of Columbia Court of Appeals overturned a D.C. Superior Court ruling in February that upheld the D.C. Council’s authority to postpone the District’s first attorney general election to 2018.

In its five-page order, the Court of Appeals required the District to hold the election in 2014, “unless it would not be practically possible for [the D.C. Board of Elections] to do so under the applicable statutory and regulatory provisions.” The court said it was issuing the brief order “because time is of the essence,” and that a published opinion explaining its ruling will follow.

At issue was the District’s decision to postpone the election after District residents voted in 2010 to change the position of attorney general from a mayor-appointed role to an elected one “after January 1, 2014.” The D.C. Charter amendment also provides that the attorney general’s term of office “shall coincide with the term of office of the Mayor.” The city’s mayoral race takes place on November 4, 2014.

In October 2013, the D.C. Council voted to postpone the election until 2018, citing growing concerns about the short transition period and restructuring plans for the Office of the Attorney General. Criminal defense attorney Paul Zukerberg, who has entered his name as candidate for attorney general, argued that the council did not have the authority to delay the election and filed suit. The Superior Court rejected Zukerberg’s arguments, ruling that the 2018 date set by the council is not inconsistent with the referendum. Zukerberg appealed.

On June 4, Court of Appeals Associate Judges Corinne Beckwith, Catharine Friend Easterly, and Roy W. McLeese III determined that the Superior Court’s interpretation of the Elected General Attorney Act was “incorrect as a matter of law.”

“The legislative intent of the electorate to require an election in 2014 is reflected in the explanation of the [act] presented to the voters in the ballot summary when they went to the polls,” the judges said. The panel also said that if the District can establish that holding the election in 2014 is not practically possible, then it should take place soon thereafter in 2015.

In a statement, D.C. Attorney General Irvin B. Nathan said his office is “studying the court’s order and awaiting its opinion,” and will seek an en banc review of the case.

“We continue to believe that the [D.C. Council] had the authority to interpret the 2010 Charter Amendment to authorize a statute scheduling the Attorney General election to be in 2018,” Nathan said.

In addition, Nathan said his office will be working with the Board of Elections and the D.C. Council to lay out the concerns associated with “rushing” to hold the election this year.