After striking out in federal court, a District of Columbia lawyer challenging the city’s decision to delay the first-ever attorney general election is taking his fight back to D.C. Superior Court.
Washingtonians in 2010 approved an amendment to the city charter to switch from an appointed attorney general to an elected position. Paul Zukerberg, a criminal defense attorney who wants to run for attorney general, sued the city over a measure passed Oct. 1 that pushed back the election from 2014 to 2018.
On Nov. 15, U.S. District Judge James Boasberg denied Zukerberg's request for an injunction that would have put the election back on track for next year. Zukerberg withdrew the case and filed a new complaint in Superior Court on Nov. 27. (Zukerberg originally filed his suit in Superior Court, but the city moved it to the federal trial court.)
Boasberg expressed concern about whether Zukerberg's case could survive in federal court. Zukerberg's original lawsuit accused the D.C. Council of violating the U.S. Constitution, which would give the federal court jurisdiction to hear the case. However, Boabserg said in his ruling that Zukerberg should "shore up any insufficiencies" in his pleadings related to those claims if he wanted to proceed.
Zukerberg dropped the constitutional claims in his new complaint, focusing instead on his argument that the council violated the city charter by delaying the election. A vote by citizens to amend the charter "would be meaningless if a duly ratified amendment could be overruled and annulled by a mere majority vote of the then-sitting Council," he said in his complaint.
Zukerberg's lawyer, Gary Thompson of Reed Smith, said in an interview today they decided to pursue the case in Superior Court and drop the constitutional claims to avoid delays on the issue of jurisdiction. "We're just trying to get to the merits," he said.
Boasberg never addressed the merits of Zukerberg's claims. He denied the injunction on the grounds that the legislation at issue wasn’t formally a law yet. The measure is currently before Congress, which reviews most legislation passed by the D.C. Council. If Congress doesn't take any action by the end of a 30-day review period—the days are counted depending on when Congress is in session—the measure becomes law.
The case is assigned to Judge Laura Cordero. A scheduling hearing is set for Feb. 28.