A federal judge denied lawyer Paul Zukerberg’s lawsuit against a DC Council bill to delay the election of the District’s attorney general until at least 2018, dealing a severe blow to Zukerberg’s campaign to be the first person voted into that position.
Judge James E. Boasberg wrote in his opinion that while Zukerberg raised several valid points about the uncertainty about the scheduling of an attorney general election, the case did not belong in his courtroom because the delay bill is not settled law.
“While Zukerberg raises an interesting challenge, the Court has no power to rule on that question today, as none of his claims is ripe for review,” Boasberg wrote.
The ripeness issue can be chalked up to the fact that all bills passed by the DC Council need to pass through Congress’s review. That hasn’t happened yet with the delay bill, therefore, Boasburg ruled, it cannot be challenged yet. Boasberg illustrated this by comparing Zukerberg to a car dealer who sues before a new tax on auto sales is signed into law.
"If the legislature has not yet passed the law, no one would suggest that the dealer could bring a court challenge based on the fact that such a tax might prospectively alter his business model," the judge wrote.
Zukerberg, a defense attorney and one-time Council candidate best know for his pro-marijuana views, had sued the DC government over a bill passed earlier this to push back the attorney general election. In 2010, District residents overwhelmingly an amendment to the Home Rule Charter to change the attorney general position from an appointed one to an elected one, with the first election expected in 2014, but the Council voted for a four-year delay citing a lack of interested candidates and ambiguity over the position's powers.
The amendment, as written into the charter, merely reads that the first attorney general election will happen after January 1, 2014. In a hearing last week, Zukerberg's attorney pointed out that the actual ballot question voters saw in 2010 specified next year. For now, the DC Board of Elections is proceeding as though the attorney general election is still happenening, thought it will remove the position from next year's ballots when the delay bill is approved by Congress.
But Boasberg added that Zukerberg can re-file his case after Congress has put its final stamp on the delay bill. We're waiting to hear back from Zukerberg about his next move.
UPDATE, 6:40 PM: "I don't have any problems," Zukerberg says in a phone interview about Boasberg's ruling. "It wasn't a ruling on the merits."
Zukerberg says he plans to proceed as a candidate for attorney general and collect the 2,000 signatures needed to get a spot on the April 1 ballot. He plans to re-file his case when the delay bill becomes law at the end of Congress's 30-day review period, which should be around December 20.
Zukerberg will need a judge to move quickly when he re-files his injunction. Ballot petitions are due back January 2.