Nickles vs. Mendo: The Saga Continues

Attorney General Peter Nickles and D.C. Council judiciary committee chair Phil Mendelson continue their tusslin' today, with a pair of letters from the AG.

The first [PDF] concerns Nickles' controversial request that the council repeal a bill that prohibits D.C. Jail inmates from being released after 10 p.m. That law, Nickles argued, has cost the District millions in court and is, moreover, "unconstitutional."

Mendo called that a load of BS, and wrote Nickles a letter saying he was "appalled" as his position, saying he had no standing to declare a law passed by the council and signed by the mayor unconstitutional.

In today's response, Nickles says, au contraire:

While the goal of pursuing collaborative legislative action is important, I have taken an oath not only to faithfully execute the laws of the United States and of the District of Columbia, but also to defend the Constitution of the United States. Therefore, I have a duty to insure that all of the laws of the District are applied in a manner that respects the constitutional rights of its citizens. I also have a duty to the Mayor and his subordinates to provide legal advice that from time to time may include a determination that a particular law or its application is unlawful and should therefore be considered of no legal force or effect.

Nickles spends much of the letter detailing efforts by the Department of Corrections to improve the process by which prisoners are released in order to avoid overdetentions. But, he writes, "In my view there are no legitimate safety or public interest issues that can justify the blanket effect that the 10:00 PM cut-off works on those inmates who would otherwise be released but for its operation." And he goes on to say, essentially, that Mendo has no idea what he's talking about, legally speaking: "By contrast, this Office's litigation experience, and my experience with our local and federal courts, has made it abundantly clear to me that those courts will strike down the application of the 10:00 PM cut-off if presented with the issue."

The other letter [PDF], somewhat less combative, concerns Nickles' efforts to authorize the city police to issue subpoenas. Much of the missive details other jurisdictions that extend similar powers for investigative reasons, and Nickles also rebuts concerns that handing subpoena power to the cops will eliminate judicial oversight: "A party served with a subpoena has every right to challenge its issuance and move that it be modified or quashed in its entirety. Similarly, in the event of non-compliance, prosecutors wilt have to decide whether or not to initiate enforcement proceedings."

Mendelson's office had no immediate comment.