McDuffie v. D.C. Bd. of Elections

300 A.3d 736

Kenyan MCDUFFIE, Petitioner,

v. District of Columbia BOARD OF ELECTIONS, Respondent,andBruce Spiva, Intervenor.

No. 22-AA-0276

District of Columbia Court of Appeals.

Argued April 27, 2022

Decided August 31, 2023

Baruch Weiss, Washington, DC, with whom Thorn L. Pozen, Washington, DC, Kevin M. Hilgers, Joe Sandler, Stephen K. Wirth, Washington, DC, and Samuel F. Callahan were on the application, for petitioner.

Christine Pembroke, Washington, DC, for respondent.

Theodore A. Howard, Washington, DC, for intervenor.

Robert P. Charrow and Juliana Laurello, Washington, DC, for amicus curiae Council Chairman Phil Mendelson, Councilmember Vincent Gray, and former Councilmembers Yvette Alexander, Kwame Brown, Michael Brown, David Catania and Tommy Wells in support of petitioner.

Mary M. Cheh on behalf of herself, adopting the views of the amicus brief via letter.

Before Easterly and AliKhan, Associate Judges, and Thompson, Senior Judge.

Easterly, Associate Judge:

We interpret in this case for the first time the experiential requirements for candidates for Attorney General in the District of Columbia, and specifically what it means for a potential candidate to have been "actively engaged ... as ... [a]n attorney employed in the District of Columbia by ... the District of Columbia." See D.C. Code § 1-301.83(a)(5)(D). After an opponent challenged Councilmember Kenyan McDuffie's qualifications to run as a non-practicing attorney, the Board of Elections concluded Mr. McDuffie could not be placed on the ballot for the June 2022 primary election. In light of our obligation to resolve this issue within tight timeframes established by statute, we issued a published order on April 28, 2022, affirming the Board's decision. We briefly explained that the text of D.C. Code § l-301.83(a)(5)(D), although ambiguous, is most reasonably read through a holistic examination of the statute and its history to require that a candidate be employed in an attorney role—in other words, a role that requires the individual to be a licensed attorney. See McDuffie v. D.C. Bd. of Elections , 273 A.3d 838 (D.C. 2022) (per curiam). As promised in that order, we now issue this opinion to more thoroughly explain our reasoning.

I. Facts and Procedural History

On March 21, 2022, Mr. McDuffie filed his paperwork seeking to run for Attorney General in the upcoming Democratic primary. Mr. McDuffie represented Ward 5 at the time and had done so since 2012. He was also an active member, in good standing, of the District of Columbia Bar and had been since he was admitted in 2008. Prior to his role on the Council, Mr. McDuffie was employed in various attorney roles. The Board of Elections preliminarily approved his candidacy.

The following day, Bruce Spiva, who also sought the Attorney General position, filed a challenge to Mr. McDuffie's candidacy based on D.C. Code § 1-301.83(a)(5), arguing that Mr. McDuffie's role as a Councilmember could not fulfill the requirement to be "actively engaged ... as" either "[a]n attorney in the practice of law in the District of Columbia" under subsection (A) or "[a]n attorney employed in the District of Columbia by ... the District of Columbia" under subsection (D). Mr. McDuffie conceded that he did not meet the requirements under subsection (A) but argued that the statute's text and history demonstrate that it was meant to include someone like him either because (1) he is an attorney and separately is employed by the District of Columbia or (2) he is an attorney and, although not employed as such, is "actively engaged" in legal work in his capacity as a Councilmember. The Board of Elections concluded that to be qualified under subsection (D), a potential candidate must "have served or be serving in the position of attorney" (which it defined by "roles where ... [bar] membership is a prerequisite"¹ ), a requirement distinct from being engaged in "practice of law" (which it defined by roles where one is "engaged by a client to perform legal services for consideration"). See also D.C. App. R. 49(b)(2) (defining practice of law as "provid[ing] legal services for or on behalf of another person within a client relationship of trust or reliance"). The Board reasoned that this determination was dictated by the plain text of the statute and that to read the statute as Mr. McDuffie had urged would either effectively eliminate an experiential requirement for government employees who happen to be attorneys but do not serve in attorney positions or create a line-drawing problem in determining when a District employee not employed as an attorney is engaged in "functional[ly] equivalent" work. It thus concluded that Mr. McDuffie's name could not be placed on the June 21, 2022, Democratic primary ballot as a candidate for Attorney General.

Mr. McDuffie sought expedited review of the Board's order pursuant to D.C. Code § 1-1001.08(o)(2). We considered his petition before the Board of Elections’ deadline for printing primary ballots and issued our order affirming the Board's decision on April 28, 2022. McDuffie v. D.C. Bd. of Elections , 273 A.3d 838 (D.C. 2022) (per curiam). In that order, we "provide[d] a brief summary of our reasoning" but stated a published opinion would follow. Id. at 839.

II. The History of the Attorney General for the District of Columbia Clarification and Elected Term Amendment Act of 2010

From the time the District was granted Home Rule until 2014, the position of Attorney for the District of Columbia—until 2004 called "Corporation Counsel" and thereafter the Attorney General² —was filled by mayoral appointment. See Attorney General for the District of Columbia Clarification and Elected Term Amendment Act of 2009, Report on Bill 18-65 before the Comm. on Pub. Safety & the Judiciary, Council of the District of Columbia, at 2, 6 & n.19 (Dec. 16, 2009) (hereinafter Comm. Rep.). After concerns arose about "the independence and integrity of the" Office of Attorney General, the Council considered a bill in 2007 to clarify the appointment process and qualifications required for the role. See Comm. Rep., Memorandum from D.C. Appleseed to Councilmember Phil Mendelson, at 2-3. The 2007 bill would have required seven years of D.C. Bar membership prior to becoming Attorney General, but did not propose any experiential requirements. See Attorney General of the District of Columbia Clarification Act of 2007, Bill No. 17-548, § 2(b). At least one commenter urged the Council to add an experiential requirement in addition to D.C. Bar membership. See Comm. Rep., Statement of Kathy Patterson, former Chair of the Judiciary Comm., at 2-3. See generally Comm. Rep., Memorandum from D.C. Appleseed to Councilmember Phil Mendelson (summarizing the focal points).

The Council considered a new bill in 2009, which aimed to increase the Office of the Attorney General's independence by converting the Attorney General to an elected position and to "strengthen the position of Attorney General through the establishment of minimum qualifications and a term of service." Comm. Rep. at 2. Accordingly, D.C. Bar membership and experiential requirements became key aspects of the 2009 bill.

As initially introduced, the 2009 bill required an individual seeking to run for the position of Attorney General to satisfy the D.C. Bar membership qualification in one of two ways: (1) they could show membership in good standing for seven years or (2) they could show that they were "a professor of law in a law school in the District of Columbia or ... an attorney employed in the District of Columbia by the United States or the District of Columbia "; they "ha[ve] been employed in such capacity for at least five years"; and they have been eligible to join the D.C. Bar for the past seven years. Bill No. 18-65, § 102(a)(3)(A), (B) (as introduced, Jan. 6, 2009) (emphases added); see also Committee Print, § 103(a)(3)(A), (B) (Dec. 16, 2009) (attached to Comm. Rep. at 105). The initial draft of the 2009 legislation likewise included experiential requirements. Specifically, a would-be candidate for Attorney General had to show that they "[h]a[d] been actively engaged [ ] for at least five of the ten years" before taking office in one of four professions: "as an attorney in the practice of law in the District of Columbia, as a judge of the District of Columbia court, as a professor of law in a law school in the District of Columbia, or as an attorney employed in the District of Columbia by the United States or the District of Columbia . Bill No. 18-65, § 102(a)(4) (as introduced, Jan. 6, 2009) (emphasis added); see also Comm. Print, § 103(a)(4) (attached to Comm. Rep. at 105).

The final bill reduced the D.C. Bar membership requirement to five years but made it mandatory across the board, deleting the alternative for law professors and government attorneys to demonstrate only their seven-year eligibility to join the bar. See D.C. Law 18-160, 57 D.C. Reg. 3012, 3013, § 103(a)(3), (4) (Apr. 9, 2010). But the experiential requirements remained the same—only the structure in the codified version changed slightly to move "[h]as been actively engaged ... as" to the introductory phrase rather than repeating "as" in each clause. Compare Bill No. 18-65, § 102(a)(4) (as introduced, Jan. 6, 2009), with D.C. Law 18-160, 57 D.C. Reg. 3012, 3013, § 103(a)(5) (Apr. 9, 2010).³ In its final form, and as currently codified, the experiential provision of the statute provides that "[n]o person shall hold the position of Attorney General for the District of Columbia unless" they have:

been actively engaged , for at least 5 of the 10 years immediately preceding the assumption of the position of Attorney General, as :

(A) An attorney in the practice of law in the District of Columbia;

(B) A judge of a court in the District of Columbia;

(C) A professor of law in a law school in the District of Columbia; or

(D) An attorney employed in the District of Columbia by the United States or the District of Columbia .

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