The ongoing case over a law granting the District of Columbia control over its local budget could be stalled as the mayor solidifies her position, raising questions about the future of the case.
D.C. Mayor Muriel Bowser, in conjunction with Attorney General Karl A. Racine, the District’s first elected attorney general, filed a motion with the D.C. Circuit Court of Appeals on Feb. 13 asking that the case pitting the mayor’s office against the D.C. Council be paused for 30 days so the mayor could review her position. Judges have yet to rule on the motion. “The court actually anticipated that this might happen,” Walter Smith, executive director of DC Appleseed, said in a Tuesday phone interview, referring to questions raised during the oral arguments in October about how a new mayor would affect the case.
“To me, at least, it suggests that the court was open to the possibility of waiting to see what the new mayor had to say and, depending on what she said, finding the case was moot and dismissing it,” Smith said.
The case centers on a disagreement between two branches of D.C. government about the legality of a budget autonomy act granting D.C. control over its locally raised funds. The act passed the council and was approved by 83 percent of District voters in April 2013. It took effect after passing a congressional review period last January, but the D.C. executive and legislative branches differed on whether it was legal.
Former Mayor Vincent Gray and then-Attorney General Irvin B. Nathan argued it could not move forward because Congress has control over D.C.’s budget. The D.C. Council disagreed, arguing that Congress has created avenues for the District to alter the budget process. In May, a judge struck down the budget autonomy law, siding with Gray, but the council appealed the decision, which is the case currently in question.
“Because the motion was filed late Friday and the courts were closed the last two days, the motion has not yet been ruled on by the judges,” Rob Marus, spokesman for the Office of the D.C. Attorney General, wrote in an email Tuesday.
“It’s important to keep in mind that this is a highly unusual situation — with one of the major figures in a case before a federal appeals court changing after the court heard oral arguments in the case — and so there’s not really any clear playbook for predicting next steps,” Marus wrote.
Marus explained that the judges could choose not to rule on the motion to delay the proceedings, and “could choose to simply wait to take any further actions on the case until after the Mayor’s position is settled.”
Bowser was a member of the Council when it unanimously approved the budget autonomy act. Though she did not state her current position in the motion, the motion did indicate that the Office of the Attorney General would no longer represent her in the case. Racine has said the act is not legal, and the motion indicated he will continue to represent Chief Financial Officer Jeffrey S. DeWitt, who previously warned the referendum could violate the law.
“I think this move is consistent with [Bowser’s] comments and her support for budget autonomy all along,” Kimberly Perry, executive director of DC Vote, said in a Tuesday phone interview. “She sees now, more than ever, as mayor, how important it as for D.C. to have control over how its local dollars are spent.”
But the question remains whether the CFO will continue his position in opposition to the act, and how that further affects the lawsuit.
“What happens when the mayor and the CFO disagree?” Smith asked. “And does the mayor have the authority to say that ultimately she speaks for the executive branch of the District government? The question then may become whether or not the office of legal counsel gets to decide this legal question,” Smith said, referring to the division that resolves legal disputes between District agencies.
“I’m kind of hoping that all of that will get resolved within the next 30 days within the District government,” Smith said. “I am guessing that the CFO would be only too happy to change his position too if he were told ... that the legal position that the executive branch wants to take favors the budget autonomy referendum.”
Smith and other D.C. activists are hoping that will be the case, and Smith said if the case is dismissed, the act could take effect immediately, since it already passed the congressional review period. He noted, “If the lawsuit is dismissed quickly, the change in the budget autonomy law could apply to this fiscal year budget season.”
For other D.C. activists, the dispute over the budget autonomy law is a symptom of a broader problem.
“I think just so much of this goes back to the root of our real problem, and that is decisions about our local democracy … are being made by those we didn’t even elect and they have no accountability to us,” Perry said. “And the people have spoken. We’re tired of this dysfunctional relationship with Congress. We want to control our own budget, our own laws.”
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