D.C. Courts Are Strong, But Justice Advocates Push for D.C. Autonomy
May 04, 2023
The D.C. Court of Appeals closed more than 1,100 cases in 2021 and 2022 and reduced the median time on appeal in both years. The court still has one judicial vacancy, which has existed for 10 years. Meanwhile, in 2022 D.C. Superior Court disposed of more than 15,000 cases in the Civil Division, approximately 8,000 in the Domestic Violence Division, 9,329 in Family Court, 2,811 in the Probate Division — a 15 percent increase from 2021 — and nearly 10,000 in the Criminal Division.
The D.C. Courts’ finances are “strong and well managed,” said Chief Judge Anna Blackburne-Rigsby, who, along with Superior Court Chief Judge Anita Josey-Herring, reported on the state of the judiciary at the 2023 Judicial & Bar Conference on April 28.
“As a result, we’ve been able to expedite case resolution, enhance information security, expand access to justice, maintain the court infrastructure, and stabilize and begin renovation of the historic Recorder of Deeds Building for use as the Justice Resource Center,” Blackburne-Rigsby said. “We are resilient and innovative, and we are stronger for what we have gone through.”
Judge Josey-Herring hailed the Superior Court as “one of the finest urban trial courts in the United States.” She added, “Consistent with tradition and despite the odds, we have processed and managed a monumental caseload and led with compassion and balance.”
Attended by approximately 600 members and leaders of the D.C. legal community, the conference also featured remarks by D.C. Bar President Ellen Jakovic, who noted some of the Bar’s fiscal year highlights, including its 50th anniversary celebration.
Jakovic also talked about the Bar’s initiative in developing future legal leaders through its John Payton Leadership Academy; its new Diversity, Equity, Inclusion, and Accessibility Task Force; and the creation of a D.C. Bar Community specifically for lawyers just entering the profession.
“I’m immensely proud to be part of the D.C. Bar leadership,” Jakovic said. “Serving as D.C. Bar president this year has been one of the highlights of my legal career.”
Impact of Home Rule
The Judicial & Bar Conference, held in person for the first time since the pandemic, featured several sessions anchored on the 50th anniversary of D.C. home rule, including the CLE seminar “Examining Elements of Statehood Through the Home Rule Act.”
Joanne Chan, senior assistant general counsel and head of state legal affairs for Pharmaceutical Research and Manufacturers of America, provided a historical overview, explaining that Congress’s power over the District as the seat of government is rooted in Article 1, Section 8, Clause 17, of the U.S. Constitution. In the early 1800s, District residents were allowed to elect a mayor and local legislature, but in 1874 a reorganization of the city’s government replaced the elected officials with a three-member Board of Commissioners appointed by the president.
The Senate tried six times between 1948 and 1966 to pass a bill supporting home rule, but each time the bill died in the House Committee on the District of Columbia. In 1963 District residents finally won the right to vote for president and vice president. Ten years later Congress passed the Home Rule Act, allowing for the creation of a municipal government, including an elected mayor and D.C. Council. Under the Home Rule Act, Congress has the power to review all legislation passed by D.C. Council before it can become law and retains authority over the District’s budget.
Moving into current day, other panelists summarized approximately 25 court cases that illustrate the impact of home rule, including Kopff v. D.C. Alcoholic Beverage Control Board (1977), wherein neighborhood residents opposed the granting of a liquor license to a family restaurant. Many of the questions presented involved procedural irregularities, but the central issue was the role of the recently created Advisory Neighborhood Commissions (ANCs) in the board’s hearings.
“There is an unusual emphasis on local participation by everyday citizens. I don’t know of other states that have an analog to the ANC structure that the District has, certainly not with the teeth that the D.C. Court of Appeals has given it under the ANC statute, which the agencies really have to be mindful of as they carry out their duties,” said Abram Pafford, a partner at McGuireWoods LLP.
Brandi Howard, also a partner at McGuireWoods, presented several cases that expanded upon home rule. One was Myerson v. United States (2014), in which the defendant was found guilty of assault on a U.S. Park Police officer after resisting arrest. Myerson argued on appeal that his misdemeanor charge violated the Home Rule Act because D.C. Council had no legal authority to criminalize his conduct toward federal law enforcement.
“The court said that enforcing traffic laws on a local street is not a federal function, and that is essentially all the Park Police were doing,” Howard said.
Lack of Self-Government
In another session, “Without the Consent of the Governed: Dobbs, Drug Policies, and Other Hurdles in D.C.’s Pursuit of Local Autonomy,” panelists touched upon instances in which Congress overruled the democratic wishes of the District, the most recent of which is its rejection of the city’s proposed Revised Criminal Code Act.
“It was the product of 16 years of study by the Council and by an outside committee,” said Bruce V. Spiva, a civil rights and antitrust attorney. “[Congress] overturned it to score cheap political points at home.”
Spiva also noted that Congress can place riders on budgetary bills that forbid the District from directing federal and city funds to certain programs such as abortion care and the implementation of the legalization and regulation of cannabis.
Lorelei S. Masters, a partner at Hunton Andrews Kurth LLP, said D.C. Council has been very proactive in protecting reproductive rights and access to abortion in the District by passing initiatives such as the Enhancing Reproductive Health Protections Amendment Act of 2022, which clarified that an individual assisting an individual self-managing their abortion shall not be penalized. However, the Dornan Amendment prohibits the District from using locally raised tax dollars for abortion and reproductive care.
“These are not federal tax dollars,” Masters said. “That is something that is unique to the District of Columbia.”
Masters believes that District women’s rights are secure after the U.S. Supreme Court eliminated women’s constitutional right to abortion in Dobbs v. Jackson Women's Health Organization (2022), but reminded attendees that Congress has the power of the purse over the District.
“Our budget has to be approved by Congress before we can spend our tax dollars,” she explained. “We have a $19 billion budget. The federal government pays $637 million — that’s less than 3.5 percent of our budget. The rest of that budget comes from D.C. tax dollars. But Congress can control that.”
“This is not simply an issue about health care, it’s also a question of racial equity because we are a majority minority District,” Masters said. Citing figures from the Centers for Disease Control, Masters said 52 percent of abortions in the District in 2019 were obtained by non-Hispanic Black women. “The fact that we cannot provide funding for those kinds of services for women in the District [has] a huge racial equity impact for basic health care that women need,” she added.
The remedy to these concerns is D.C. statehood, said David P. Grosso, a partner at ArentFox Schiff LLP and former D.C. Council at-large member. “If you don’t have those two senators who are voting members of Congress, you can’t fight for your rights,” Grosso said. “There are federal payments that go to every other jurisdiction in the country that Congress can implement riders on. But those [representatives] would be thrown out of office if they violated the democracy [of those states] in the way that they are violating our democracy and rights.”
Spiva agreed. “We pay more federal taxes per capita than any other jurisdiction in this country. We obey federal law. We have fought in every single war since the beginning of the republic. We’ve fulfilled every responsibility of American citizenship, yet we have no full representation in our federal legislature. And as we saw just a few weeks ago, we actually don’t have control over our local affairs, either. Congress can and has overridden our local decisions anytime it wants.”
