McDuffie stays off ballot for attorney general, D.C. appeals court rules

Linda D. Garrow
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The D.C. Court of Appeals on Thursday upheld a Board of Elections ruling that knocked attorney general candidate Kenyan R. McDuffie off the June primary ballot, accepting a rival’s argument that McDuffie’s decade on the D.C. Council does not meet the statutory requirements for the position.

The decision comes after lawyers for McDuffie, the elections board and fellow attorney general candidate Bruce V. Spiva, who brought the challenge, defended their positions in front of three appellate judges Wednesday morning. McDuffie and the elections board had urged the court to make a ruling before Friday, when the board is scheduled to conduct a lottery to determine the order of candidates on the ballot.

McDuffie last year decided not to run for reelection in Ward 5 in favor of a bid for attorney general, launching his campaign with great fanfare outside his family home. Though he had raised more money than his competitors in the race and was widely viewed as a top candidate, the Court of Appeals’ decision dealt another blow to his hopes of staying on the ballot while opening the door for three Democrats who are less familiar to the city’s electorate: partner-in-charge of Venable’s D.C. office Brian Schwalb, local lawyer Ryan Jones and Spiva, a former managing partner at the firm Perkins Coie.

But on Thursday, McDuffie vowed to keep fighting. In a statement, his campaign said it had filed an emergency stay of the court’s decision and a petition for an expedited rehearing that would go before the full D.C. Court of Appeals, also known as a hearing en banc. In the meantime, the statement said, his campaign will continue.

“While we respect the three-judge panel, we respectfully disagree with its conclusion, which we believe — along with many legal scholars and legislative authorities — is contrary to the language, legislative history and intent of the statute,” the statement read.

Spiva’s campaign applauded the court’s decision in its own statement: “McDuffie is a dedicated public servant but he does not meet the reasonable, minimum qualifications that were set out by the Council and District voters to ensure the DC Attorney General is experienced enough to use the law to fight for the people of DC.”

Baruch Weiss, an attorney for McDuffie, argued Wednesday before the court that McDuffie’s job as council member satisfies a D.C. Code clause that says the city’s attorney general must have been “actively engaged” as a practicing attorney, judge, law school professor or “an attorney employed in the District of Columbia by the United States or the District of Columbia” for five of the past 10 years before taking office.

Weiss said McDuffie, who has represented Ward 5 on the D.C. Council since 2012, meets that criteria as a licensed attorney employed by the D.C. government because he uses his legal skills and judgment in his duties as a legislator. He also asked the judges to examine the issue “with a presumption of inclusiveness and presumption of eligibility.”

“Council members draft and analyze laws — that is part of the definition of what a lawyer does,” Weiss said. “Those who are not lawyers have to hire lawyers to help them do that. In this case, he did it himself.”

But in a brief summary of their unanimous decision Thursday, the judges said they disagreed with McDuffie’s interpretation of the statute and its requirements.

“Allowing an individual to serve as Attorney General simply because they are an attorney and work in a nonlawyer capacity for the District, as a school nurse or IT expert, for instance, hardly seems to serve the aims of adding an experiential requirement to the minimum qualifications for the office,” the summary read.

D.C. attorney general hopefuls debate; McDuffie off ballot, offstage

Spiva’s lawyer, Ted Howard, offered a similar argument Wednesday when he asked the judges to affirm the election board’s ruling. While McDuffie is employed by the D.C. government and a licensed lawyer, he said, serving as a council member does not equate to the duties of an actively engaged attorney.

“There are investigators, auditors, mediators, hearing examiners, administrative law judges, all of whom we believe are eligible to run for attorney general,” Howard said, listing other government attorney positions. “Not because they’re engaged in the practice of law … but because they fit within the definition of ‘actively engaged’ as attorneys employed by the government.”

Weiss further argued that the D.C. Council more than a decade ago would not have written the law in such a way to disqualify city lawmakers who are members of the D.C. Bar from running for attorney general. Last week, eight current and former members of the D.C. Council, including Chairman Phil Mendelson (D) and council members Vincent C. Gray (D-Ward 7) and Mary M. Cheh (D-Ward 3), submitted a legal briefing in support of McDuffie making the same point.

But Judge Catharine Easterly noted that their intent was not clear in the bill’s written legislative record: “I understand it is a significant collection of legislators,” she said. “The fact remains it is 12 years later.”

In their summary opinion, the judges doubled down on that sentiment, writing that they were unpersuaded by “twelve-years-after-the-fact views.”

In recent days, McDuffie’s supporters have organized protests on his behalf and discussed such options as a write-in campaign in an effort to keep his bid alive. While some supporters had lobbied the D.C. Council to intervene by way of emergency legislation to clarify the eligibility requirements, Mendelson said last week he had no plans to introduce such a bill and wanted the appeals process to play out.

After the panel’s ruling Thursday, Mendelson said that although he disagreed with the judges’ decision, his view had not changed. No other council members have raised the issue, he said, although he added he does think the council should “deal with” the eligibility statute at some point.

“I’m confident the council never intended to exclude an incumbent council member from being able to run, provided he or she was an attorney and member of the D.C. Bar,” Mendelson said, noting that he helped write the law. “Having said that, unless there’s an en banc appeal, the panel’s decision, in my view, settles the issue.”

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