After Congress took over the DC court system in the 1997 Revitalization Act, did DC's Corporation Counsel still defend DC judges and court employees in lawsuits, and did the DC Settlement and Judgment Fund still pay any judgments?
Plain-English summary
The 1997 Revitalization Act was the deal that ended the DC fiscal crisis. The federal government took over funding for the courts, parole, prisons, and pension liabilities, in exchange for the District relinquishing certain functions. Section 11723(a) of the Act says that "the District of Columbia shall defend any civil action or proceeding pending on the effective date of this title... against the District of Columbia or its officers, employees, or agents, and shall assume any liability resulting from such an action or proceeding." That language is unambiguous about pending cases, but the executive officer of the DC Courts wanted to know what happened to future cases against DC Court judges and employees.
The Corporation Counsel concluded that nothing in the Revitalization Act changed the District's traditional duty to defend its own judges and court employees in tort suits arising from official duties, or to pay any resulting settlements or judgments out of the DC Settlement and Judgment Fund. The reasoning rests on three textual points.
First, § 11723(c) makes clear that the United States is not responsible for any liability arising from the District's own activities, and that liability allocation does not turn on whether a case was pending before or after the Act. So the District remained the liable party even after the Act.
Second, the "pending on the effective date" language in § 11723(a) only assured continuity for cases already in litigation; it did not create a new exemption for future cases. Read alongside §§ 11205 and 11232 (which expressly continue District-funded defense for the Corrections Trustee and Court Services Trustee, who are themselves "independent officer[s] of the government of the District of Columbia"), § 11723(a) preserves the status quo for District-employed judges and court personnel.
Third, when Congress wanted to authorize alternative non-Corporation-Counsel representation, it did so explicitly, as in § 11205(b) for the Corrections Trustee. The Act contains no such alternative for DC Court judges and employees, so the default Corporation Counsel role and Settlement and Judgment Fund payment route persisted.
Currency note
This opinion was issued in 1997. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The DC Courts' relationship to the Office of Corporation Counsel (now the Office of the Attorney General) has been touched by later legislation including the 2004 Attorney General Clarification and Elected Term Amendment Act, and the federal-fund streams under the Revitalization Act have evolved.
Historical context
The Revitalization Act was a structural rescue. In return for federal assumption of unfunded pension liability and the felony prison and parole functions, the District handed over criminal-prosecution funding, court funding, and several other items to federal payrolls. But the DC Courts were peculiar: they remained DC's judicial branch even though their salaries and budgets now flowed from the federal Treasury. That hybrid status created cleanup questions like the one in this opinion: who defends a DC judge sued for a tort claim, and who pays?
The Corporation Counsel's answer kept the existing DC infrastructure in place. DC judges, court officials, and court employees stayed within the Corporation Counsel's representational scope when sued in tort for acts within official duties, and the DC Settlement and Judgment Fund kept paying any resulting liability. The federal Treasury did not pick up that piece.
What this meant at the time for DC judges
A judge sued for an official-duties tort could expect representation from the Corporation Counsel on request, and any resulting settlement or judgment would be paid out of the DC Settlement and Judgment Fund.
What this meant for plaintiffs
A tort suit against a DC judge or court employee did not become a Bivens-style federal-officer suit after the Revitalization Act. It remained a District-defended, District-paid local tort matter. Plaintiffs serving and litigating those cases dealt with the Corporation Counsel and recovered from the DC Settlement and Judgment Fund.
What this meant for the Corporation Counsel office
The Revitalization Act did not strip away one of the office's largest clients. The judicial-branch defense docket continued.
Common questions
Q: What was the Settlement and Judgment Fund?
A: A DC appropriations vehicle established under D.C. Code § 1-1202 to pay civil litigation liabilities (settlements and judgments) imposed on or agreed to by the District government. The Corporation Counsel supervised it.
Q: Did the federal government ever pay DC tort judgments after 1997?
A: Only when the underlying activity was a federal-trustee function (Corrections Trustee, Court Services Trustee) and the Trustee elected to use federal counsel and funds. For all DC government activity, including DC Court activity, the District paid.
Q: Did the Corporation Counsel have to defend a judge if the judge wanted private counsel?
A: The opinion is about whether the office may defend, not whether the judge must accept defense. As with all government tort defense, the affected official could decline and proceed at personal expense.
Q: Did this opinion address criminal prosecution defense for judges?
A: No. This opinion is about civil tort defense only. Criminal-defense representation for officials operates under separate rules.
Citations
Statutes
- National Capital Revitalization and Self-Government Improvement Act of 1997, Pub. L. 105-33, 111 Stat. 251, §§ 11202(a), 11205, 11232(a), 11233, 11723
- D.C. Code § 1-361 (1992) (Duties of Corporation Counsel)
- D.C. Code § 1-1202 (1992) (Settlement of claims and suits against District)
Source
- Index page: https://oag.dc.gov/about-oag/our-structure-divisions/legal-counsel-division/opinions-attorney-general
- Original PDF: https://oag.dc.gov/sites/default/files/2018-02/Opinion-July-2014-Self-Improvement-Act-DC-Courts.pdf
Source
- Index page: https://oag.dc.gov/about-oag/our-structure-divisions/legal-counsel-division/opinions-attorney-general
- Original PDF: https://oag.dc.gov/sites/default/files/2018-02/Opinion-July-2014-Self-Improvement-Act-DC-Courts.pdf
License
This opinion is published by the Office of the Attorney General for the
District of Columbia. Per the DC.gov terms of use, content is licensed
under Creative Commons Attribution 3.0,
which permits commercial use, redistribution, and modification with
attribution.
Original opinion text
<&nutrnmtnt nf tltt it i.strict· nf <!tnlumbia
OFFICE OF THE CORPORATION COUNSEL
JUDICIARY SQUARE
441 FOURTH ST .. N.W.
WASHINGTON. D. C
20001
IN REPLY REFER TO,
OLC:LNG:lng
(AL-97-538)
Novembpr 6, 1997
Ulysses B. Hammond
Executive Officer
District of Columbia Courts
500 Indiana Avenue, N.W.
Washington, D.C. 20001
Re: Effect, if any, of the National Capital Revitalization
and Self-Government Improvement Act of 1997 on: (1) the
legal representation of the D.C. Courts and its judges,
officers, and employees by the Office of corporation
Counsel, and (2) the payment of settlements and judgments
involving judges, officers,and employees of the D.C.
Courts from the District's Settlement and Judgment Fund.
Dear Mr. Hammond:
This responds to your October 22, 1997 letter in which you request my views concerning the impact, if any, of the National Capital Revitalization and Self-Government Improvement Act of 1997
("Revitalization Act"), approved August 5, 1997, Pub. Law 105-33,
111 Stat. 251, on two aspects of. there.lationship between the Executive Branch of the District government and the JUdicial' Branch of
the District government.
First, you ask whether the "D.C. Courts
(and its judges, officials and employees) remain the judicial
branch of the District of Columbia Government for the purpose of
receiving legal representation by the Office of corporation
Counsel."
Second, you ask whether the "D.C. Courts (and its
judges, officials and employees) remain the judicial branch of the
District of Columbia Government for the purpose of the payment of
settlements and judgments from ... the ,Settlement and Judgment Fund
that is appropriated annually to pay civil litigation liabilities
agreed to or imposed upon the District of Columbia."
For the
reasons stated below, I conclude that the answer to both of these
questions is "yes."
At the outset, it is relevant to state that I concur in the
conclusion stated in your letter that "[t]he Revitalization Act did
not change the status of the D.C. Courts as the jUdicial branCH 01.
the District of Columbia Government ."·Your questions. are prompte~
)
•
2
by the language of subsection (a) of section 11723 of the Revitalization Act, which provides as follows:
. (a) District of Columbia. -- The District of Columbia
shall defend any civil action or proceeding pending on
the effective date of this title in any court or other
official municipal, state, or federal forum against the
District of Columbia or its officers, employees, or
agents, and shall assume any liability resulting from
such an action or proceeding. [Underscoring added.]
The underscored language suggests that, with respect ~o any
civil action or proceeding filed after the effective date of the
Revitalization Act, there may be a change with respect to the District's usual practice of defending such civil action or proceeding
and with respect to the District's practice of assuming, when appropriate or required, any liability resulting therefrom. In order
to determine whether Congress intended by this language to alter
the status quo ante in these two regards, it is useful to examine
other provisions of the Revitalization Act.
One of those provisions is subsection (c) of section 11723.
Paragraphs (1) and (2) of sUbsection (c) provide that the united
states shall not "be responsible for the payment of any judgments,
liabilities or costs resulting from any action or proceeding
against the District of Columbia or its agencies, officers, employees, or agents" and shall not "be subject to liability in any case
on the basis of the activities of the District of Columbia or its
agencies, officers, employees, or agents ••.• " In sUbsection (c) of
section 11723, there is no reference to whether a civil action or
other proceeding is pending on the effective date of the Revitalization Act. Rather, the sole criterion for determining which government entity shall assume liability, as between the united states
and the District of Columbia, is whether the civil action or proceeding is against the District government, or its agencies, officers, employees, or agents. ThUS, the language of sUbsection (c)
of section 11723 suggests that the language of sUbsection (a) of
section 11723 was not intended to relieve the District of Columbia,
subsequent to the effective date of the Revitalization Act, of any
liability it would otherwise have for its own acts or omissions or,
under the tort liability principle of respondeat superior, for the
acts or omissions of its own agencies, officers, employees, or
agents. l
Subsection (d) of section 11723 of the Revitalization Act
provides: "Nothing in this section shall be construed as a waiver
of sovereign immunity, or as limiting any other defense or immunity
that would otherwise be available to the united states, the District of ColUliIJ.:.>ia, their agencies, officers, employees, or agents. It
Compare D.C. Code § 1-1202 (1992). I interpret this language to
mean simply that in enacting the language set forth in sUbsection
3
It r.-easonably follows that the phrase "pending on the effective date. of this title" in sUbsection (a) of section 11723 of the
Revitalization Act was intended by Congress only to make clear that
the Revitalization Act does not relieve the District government of
any duty of defense or liability with respect to any civil action
or proceeding against the District, its officers, employees, or
agents that was pending on the date the Revitalization Act became
effecti ve. In other words, Congress intended the District at least
to continue its usual practice of defending such a case and, to
continue assuming any resulting liability when appropriate or required.
This conclusion is supported by the language of sUbsection (a)
of section 11205 and by sUbsection (g) of section 11232 of the Revitalization Act which deal with liability and litigation authority
relating, respectively, to the activities of the "Corrections Trustee" and the "Pretrial Services, Defense Services, Parole, Adult
Probation and Offender Supervision Trustee" (hereinafter the "Court
Services Trustee"). These sUbsections provide that the District of
Columbia shall defend civil actions or proceedings involving such
activities and shall assume any liability resulting from such activities if they are carried out by "officers, employees, or
agents" of the District of Columbia or by the Corrections Trustee
or the Court Services Trustee. In this regard, it is pertinent to
note that the Corrections Trustee and the Court Services Trustee
are not federal officers, but rather are "independent officer[s] of
the government of the District of Columbia." See §§ 11202(a) and
11232(a) of the Revitalization Act; underscoring added. As is the
case with the liability language set forth in section 11723 of the
Revitalization Act, the sole criterion in sections 11205 and 11232
for determining whether the District government may be liable is
whether the civil action or proceeding is against the District
government, or its agencies, officers, employees, or agents. In
neither sUbsection (a) of section 11205 nor sUbsection (g) of
section 11232, is there any reference to whether a civil action or
proceeding is "pending" on the effective date of the Revitalization
Act. Thus, these provisions support the proposition that Congress
intended the District to continue its existing litigative practices
as described above.
In regard to the effect, if any, of the Revitalization Act on
the role of this Office in providing legal representation to the
judges, officials, and employees of the D.C. Courts in connection
with civil tort actions filed against them relating to acts or
omissions within the scope of their official duties, sUbsection (b)
of section 11205 and sUbsection (g) of section 11233 of the Revi(a) of section 11723, quoted above, Congress was stating its intent
that t.he hevitalization Act. .toes not. alter ir. o.ny way t.he <..:u.L1.t;.iit
sUbstantive law of liability applicable to the District government
and its agencies, officers, employees, and agents.
. ..
.
4
talization Act are revealing. Subsection (b) of Section 11205 and
subsection (g) of section 11233 authorize the Corrections Trustee
and the Court Services Trustee respectively: to avail himself or
herself of the litigation services of this Office; or, alternatively, at their option and expense, either generally or in particular
cases or classes of cases, to hire their own legal staffs or contract for the provision of outside litigation services. This language demonstrates that when Congress wishes to provide for the
possibility of legal representation at government expense for a
District government officer by an attorney other than the Corporation Counsel, it can expressly so provide.
And since there is
nothing in the Revitalization Act that expressly alters the general
role this Office has traditionally played vis-a-vis the D.C. Courts
in providing litigation services to judges, officials, and employees of the Courts, it is reasonable to conclude that Congress
did not intend, by enacting the Revitalization Act, to effect a
general change in the status quo in this regard, which is that
legal representation may, upon request, be provided by this Office
to the judges, officials, and employees of the D.C. Courts when
they are sued for alleged tortious conduct in connection with the
performance of their official court duties.
Accordingly, in my view, it continues to be the intent of Congress that this Office may, upon request, provide legal representation to the judges, officials, and employees of the D. C. Courts who
are sued in tort in connection with the performance of their official court duties, and that any tort liability resulting from such
suits -- whether by way of a settlement or a judgment -- may, if
appropriate, be paid out of the District's Settlement and Judgment
Fund. See generally, D.C. Code §§ 1-361 (1992) (Duties of the Corporation Counsel) and 1-1202 (1992) (Settlement of claims and suits
against District), neither of which was amended by the Revitalization Act.
If you have any questions concerning this response, please
feel free to call me at 727-6248.
Sincerely ,
_
~
h-+-~
n M. Ferren
ration Counsel
cc: Daniel A. Rezneck, Esquire
General Counsel
District of Columbia Financial Responsibility
and Management Assistance Authority