jonetta rose barras: We want you back — courting DC’s courts

Everyone seemed to have had a fit of indignation recently when the media reported that couples couldn’t get marriage licenses because the DC Marriage Bureau was closed — another victim of the federal government shutdown, instigated by the Bully-in-Chief in the White House who is determined to knuckle everyone under his demand to build a multibillion-dollar wall at the country’s southern border. What’s love got to do with it?

Nothing. That’s why the DC Council quickly passed the Let Our Vows Endure Emergency Amendment Act of 2019, commonly called the LOVE Act, as emergency legislation in effect for up to 90 days. Mayor Muriel Bowser signed the law immediately and has designated, for the length of the shutdown, the Secretary of the District of Columbia as the office that will issue licenses and officiate weddings, when requested.

We may all rightfully blame President Donald Trump and his Republican Party for holding federal workers hostage and jeopardizing the quality of their lives. However, I hold District elected officials solely responsible for the DC Superior Court being caught in the federal government imbroglio.

Back in the late 1990s, city politicians, including DC Del. Eleanor Holmes Norton, made the decision to relinquish complete control of DC’s court system to the federal government as part of “The National Capital Revitalization and Self-Government Improvement Act.” That legislation solidified the power of the existing financial control board. It also authorized the takeover of the DC Superior Court and DC Court of Appeals, as well as other parts of the court system such as the DC Board of Parole.

When local elected leaders were negotiating terms of the bailout proposal with members of President Bill Clinton’s administration (including Office of Management and Budget director Franklin Raines) and the Republican Congress (specifically then-Rep. Tom Davis of Virginia), some in the city, I among them, vehemently opposed components of the deal. It’s true the city faced an unprecedented $772 million deficit — the result of extremely poor financial management by the previous mayor, Sharon Pratt, and her finance chief, Ellen O’Connor. However, giving away the store, especially the entire judicial branch, seemed a step backward on home rule.  

Then, as now, DC was fighting for statehood; it wanted more control over its government, not less. And, what self-respecting state would want to operate without owning, even in a small way, its third branch of government?

Bill Lightfoot, an at-large DC Council member from 1989 to 1995 who practices law and remains active in DC politics, disputed the argument that the takeover was problematic, describing it as a “necessary” step at the time.

“What we gave them was control of the finances,” he said in an interview this week. The feds, he said, “don’t have any greater control over the court system than they did before the revitalization act.” And he asserted that everything has been working well, “except for times like this.”  

Has it really been working? Consider the vacancies on the bench and the issues related to parole as examples of the problems with federal control.

Lightfoot has been a member of the DC Commission on Judicial Disabilities and Tenure since 2002; that body can suspend, retire or remove a judge from the DC Superior Court or the DC Court of Appeals. From that perch he has close proximity to issues and challenges that face the system, including the impacts of the current federal government shutdown. Right now, “the court does not have enough money to pay for jurors,” he said, adding that “they have furloughed a lot of staff.”  

Equally troubling are several vacancies on the bench, perhaps as many as nine, according to Lightfoot. By law, a nominating commission makes recommendations to the president, who then selects and forwards the nomination to the Senate, which gives final approval. However, “Trump has not been nominating anybody,” Lightfoot said, noting that the District has had “excellent and honest judges,” partially because of the rigorous vetting process. In Maryland judges are elected. In some other jurisdictions they are appointed by the governor. “Our judges are isolated from the politics,” Lightfoot said.

That conclusion is questionable given the current state of affairs: a government shutdown, nine court vacancies. That looks and smells like politics to me. It’s certainly ample reason to push for complete control over the courts, including appointment of judges — as some in the statehood movement and the legal community are already doing.

Along with several other lawyers and legal organizations, Philip Fornaci of the Washington Lawyers’ Committee for Civil Rights & Urban Affairs made the case last March for the DC Council to start the process of taking back the District’s court system. They argued that DC “has yet to reconsider whether the near-complete federalization of the system of criminal enforcement in D.C. is still financially necessary, or when it might be feasible to restore at least some criminal justice functions back to the District.”

The cost for a full takeback could be “enormous,” said Fornaci and his legal allies. Maybe — or maybe not. According to federal budget documents, the 2018 budget request for the DC Court of Appeals, the DC Superior Court and the Court System totaled $368 million; $147.5 million of that was earmarked for capital improvements. The District has a $14 billion budget. Officials ought to be able to find the money.

Nevertheless, Fornaci and the others have proposed the council begin by taking a small bite: assuming control over the parole system. They noted that 6,521 of the 8,610 cases being handled by the U.S. Parole Commission at the start of 2018 were comprised of “D.C. prisoners, D.C. parolees and individuals serving supervised release periods under D.C. law.” It makes no sense to have a federal body control those decisions.

Yet, as Fornaci and his co-authors wrote last year, the city has not conducted a meaningful evaluation of “whether the incredible toll to residents and their families is worth the price tag of keeping this inherently local government function under federal control.”  As far as that price tag, they estimate that the budget for a reconstituted DC Board of Parole would be far less than the $12.7 million requested by the U.S. Parole Commission for fiscal year 2019 because it would not oversee federal parole or have the same personnel needs. 

In recent years, there has seemed to be a bout of buyer’s remorse among some elected leaders about that 1997 decision. Ward 2 Council member Jack Evans has told me that he thinks the District must gain control of its judicial branch. In June 2018, Del. Norton announced that she was introducing a bill to give the council “authority over the jurisdiction and organization of the local D.C. courts.”

“It is counterproductive to deny the District control over its own law enforcement agencies,” she said in a prepared statement. Too bad she didn’t see it that way two decades ago.

Better late than never, I guess.

jonetta rose barras is a DC-based freelance writer and host of The Barras Report television show. She can be reached at thebarrasreport@gmail.com.