McDuffie v. District of Columbia Board of Elections

Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 22-AA-0276
KENYAN MCDUFFIE, PETITIONER,
V.
DISTRICT OF COLUMBIA BOARD OF ELECTIONS, RESPONDENT,
and
BRUCE SPIVA, INTERVENOR.
On an Application for Expedited Review of an Order of the
District of Columbia Board of Elections
(2022-BOE-000003)
(Argued April 27, 2022 Decided August 31, 2023)
Baruch Weiss, with whom Thorn L. Pozen, Kevin M. Hilgers, Joe Sandler,
Stephen K. Wirth, and Samuel F. Callahan were on the application, for petitioner.
Christine Pembroke for respondent.
Theodore A. Howard for intervenor.
Robert P. Charrow and Juliana Laurello 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.
2
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.
3
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
4
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.
1
The Board aligned itself with the portion of Mr. Spiva’s brief, which would
define the “position of attorney” as one that requires D.C. Bar membership only,
which would be duplicative of the requirement in D.C. Code § 1-301.83(a)(4). At
oral argument, the Board clarified that it was defending an interpretation that
requires “bar credentials as a condition of employment” not limited to the D.C. Bar.
We assess the Board’s decision based on that clarification.
5
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 General 2—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.,
2
Mayor’s Order 2004-92 (May 26, 2004).
6
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
7
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.
8
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.
D.C. Code § 1-301.83(a)(5) (emphases added).
3
In proposing adjustments to the requirements at the final reading,
Councilmember Mendelson also referenced similar qualifications for judges
nominated to the District of Columbia courts, codified at D.C. Code § 1-204.33. See
Legislative Meeting, Council of the District of Columbia, Statement of
Councilmember Phil Mendelson, at 2:27:35 to 2:27:58 (Feb. 2, 2010),
https://dc.granicus.com/MediaPlayer.php?view_id=3&clip_id=72;
https://perma.cc/4GSA-K45A. There were no further discussions regarding the
minimum qualifications before the Council passed the bill. Id. at 3:01:35 to 3:01:55
(passing the bill as substituted).
9
III. Analysis
No one disputes that Mr. McDuffie meets the predicate requirements of D.C.
Code § 1-301.83(a)(1) to (4), requiring that a person running for the office of
Attorney General be “a member in good standing of the [D.C.] bar . . . for at least 5
years,” as well as “a registered qualified elector,” and a “bona fide resident of the
District of Columbia.” Likewise, no one disputes that he has not, for at least five of
the last 10 years, been “actively engaged” as an attorney practicing law, a judge of
a court in the District, or a law professor in a school in the District so as to satisfy
the experiential qualifications of D.C. Code § 1-301.83(a)(5)(A), (B), or (C). Thus,
the only question is whether Mr. McDuffie satisfies the experiential requirement of
§ 1-301.83(a)(5)(D)—i.e., whether, during the relevant timeframe, he has “been
actively engaged . . . as . . . [a]n attorney employed in the District of Columbia by
. . . the District of Columbia.”
The parties disagree as to whether we should defer to the Board’s
interpretation of this statutory provision. Mr. McDuffie argues that our analysis of
D.C. Code § 1-301.83 should be de novo because statutory interpretation presents a
pure question of law and the text is unambiguous in favor of his eligibility. For their
part, the Board and Mr. Spiva assert that the statutory text plainly supports the
10
Board’s decision, but they also argue that this court should accord some deference
to the Board’s interpretation of the statute. Both arguments have some foundation
in our law. Compare In re Haworth, 258 A.2d 447, 449 (D.C. 1969) (concluding
that the predecessor to D.C. Code § 1-1001.08(o)(2) gave the court the power to
decide questions of law, including statutory interpretation, de novo), with Williams
v. D.C. Bd. of Elections & Ethics, 804 A.2d 316, 318 (D.C. 2002) (“Insofar as the
[agency’s] legal conclusions are concerned, we must defer to its interpretation of the
statute which it administers . . . so long as that interpretation is not plainly wrong or
inconsistent with the legislative purpose.” (internal quotation marks omitted)). 4 See
also Off. of the People’s Couns. v. D.C. Pub. Serv. Comm’n, 284 A.3d 1027, 1033
(D.C. 2022) (explaining that, “before we afford some deference to an agency’s
interpretation of the statute that it administers at least two conditions must be met:
(1) the statutory language in question must be ambiguous, and (2) the agency’s
interpretation must be reasonable” (internal quotation marks omitted)). Because we
agree with the Board’s understanding of the statute, we need not resolve whether
4
The Board possesses some authority under D.C. Code § 1-1001.05(a)(14) to
promulgate regulations “necessary to carry out” its duties under the statute including
those “necessary to determine that candidates meet the statutory qualifications for
office.” It appears, however, that the Board has exercised this power only to
promulgate procedural regulations, see, e.g., 3 D.C.M.R. § 400 et seq. (hearing
procedures); id. § 600 et seq. (process for determining candidate eligibility); it has
not sought to substantively interpret D.C. Code § 1-301.83(a)(5)(D).
11
deference to the Board is warranted.
As always, we begin our analysis with the text of the statute, because “[t]he
primary and general rule of statutory construction is that the intent of the lawmaker
is to be found in the language that [they] . . . used.” Peoples Drug Stores, Inc. v.
District of Columbia, 470 A.2d 751, 753 (D.C. 1983) (en banc) (quoting Varela v.
Hi-Lo Powered Stirrups, Inc., 424 A.2d 61, 64 (D.C. 1980) (en banc)). We first look
“to see if the language is plain and admits of no more than one meaning.” Id. at 753.
We interpret the statute through a holistic examination of its “full text, language[,]
. . . punctuation, structure, and subject matter,” Baltimore v. District of Columbia,
10 A.3d 1141, 1146 (D.C. 2011) (quoting Cook v. Edgewood Mgmt. Corp., 825 A.2d
939, 946 (D.C. 2003)), as well as the evolution of the statutory language throughout
the statute’s legislative history, see District of Columbia v. Reid, 104 A.3d 859, 868
(D.C. 2014) (explaining that because “our task is to search for an interpretation that
makes sense of the statute as a whole,” we may “turn to legislative history to
determine whether our interpretation is consistent with legislative intent” (quoting
Cass v. District of Columbia, 829 A.2d 480, 482 (D.C. 2003))). Bearing in mind
that “a prime purpose of Congress in formulating the District of Columbia Elections
law was to keep the franchise open to as many people as possible,” we interpret our
election laws “in an inclusive spirit” unless presented with a “compelling reason” to
12
do otherwise. Lawrence v. D.C. Bd. of Elections & Ethics, 611 A.2d 529, 532-33
(D.C. 1992) (internal quotation marks omitted). 5
Mr. McDuffie argues before this court as he did before the Board that he is
experientially eligible to seek the office of Attorney General under the plain
language of § 1-301.83(a)(5)(D) because either: (1) he is a licensed attorney in active
status and, separately, is employed by the District of Columbia in the District of
Columbia; or (2) he is a licensed attorney and, although not employed by the District
as such, is “actively engaged” in legal work for the District in his capacity as a
Councilmember. We consider both of these arguments.
A. Mr. McDuffie’s Experiential Eligibility Based on His Status as a
Licensed Attorney and His Non-Attorney Employment by the District
The statute plainly does not support Mr. McDuffie’s reading that he is
experientially eligible to run for the office of Attorney General solely because he is
5
This interpretive canon does not, as Mr. McDuffie argues by relying on cases
from other jurisdictions, operate as a factual “presumption” that he or any other
individual candidate is eligible under a statute or gets the “benefit of the doubt”
regarding their eligibility. Rather, as reflected in this court’s case law, this canon
instructs us to be “mindful . . . that any decision in this area affects . . . the voters as
a whole” and directs us to read the statute to the extent reasonably possible so as to
maximize voters’ range of choices. Lawrence, 611 A.2d at 532.
13
a licensed attorney and works (albeit not as an attorney) for the District.
Preliminarily, allowing an individual to serve as Attorney General simply because
they are a licensed attorney and work in a non-attorney capacity for the District—
for example, as a school nurse or an IT expert—does not serve the aim of adding an
experiential requirement to the minimum qualifications for the office. See Tippett
v. Daly, 10 A.3d 1123, 1132 (D.C. 2010) (rejecting a proposed interpretation that
“would serve none of the Act’s . . . purposes”). While Mr. McDuffie argues that the
Board’s interpretation would lead to absurd results because it would exclude
someone like him whose work is intimately intertwined with D.C. law and yet
include, for example, a “white shoe” attorney practicing international law who
knows nothing about the District’s laws, Mr. McDuffie’s own interpretation would
do nothing to right that “wrong” and would bring the additional imbalances
mentioned above into the fold. Moreover, this understanding of § 1-301.83(a)(5)(D)
would render the language “actively engaged . . . as” meaningless, thus running
afoul of our obligation to read the statute in a way that gives all of its words meaning.
See Sch. St. Assocs. Ltd. v. District of Columbia, 764 A.2d 798, 807 (D.C. 2001) (en
banc).
To the extent Mr. McDuffie argues that “actively engaged” means only that
his bar membership must be “in active status,” we cannot agree for three reasons.
14
First, as discussed above, the statute already contains separate provisions addressing
bar membership; it specifically requires someone to be “in good standing,” D.C.
Code § 1-301.83(a)(3), (4), but does not mention the need to be in “active” status (as
opposed to the other statuses 6). It would be odd then to add an “active” status
requirement elsewhere in the statute outside the bar membership provision. Second,
the clause “actively engaged . . . as” is not reasonably interpreted to reference “active
status” vis-a-vis bar membership in any event. The “actively engaged” clause
precedes all the other options for experiential eligibility—attorney in the practice of
law, judge, and law professor—but judges, for example, have their own class of
“judicial” membership, separate from “active status.” See supra note 6. Third, it is
unclear what being in “active status” would add to a candidate’s qualifications. In
many circumstances, all that a member in good standing must do to be in the “active”
6
D.C. Bar R. II, § 4 recognizes three categories of membership: “active,”
“judicial,” and “inactive.” Inactive members are “limited to those persons who are
eligible for active membership but are not engaged in the practice of law in the
District of Columbia and have filed with the Secretary of the Bar written notice
requesting enrollment in the class of inactive members.” Id. Judicial members are
“[j]udges of courts of record, full-time court commissioners, U.S. bankruptcy
judges, U.S. magistrate judges, other persons who perform a judicial function on an
exclusive basis, in an official capacity created by federal or state statute or by
administrative agency rule,” as well as “retired judges who are eligible for temporary
judicial assignment, and are not engaged in the practice of law,” but “if a member’s
terms and conditions of employment require that he or she be eligible to practice
law, then the member may choose to be an active member,” instead of a judicial
member. Id.
15
rather than “inactive” class is ask in writing and pay an additional fee. Id.
Accordingly, we understand “actively engaged” in subsections (a)(5)(A) through (D)
to refer in some way to professional activity, not merely to the possession of an
“active” D.C. Bar license. See Tippett, 10 A.3d at 1127 (“We consider not only the
bare meaning of the word but also its placement and purpose in the statutory
scheme.” (internal quotation marks omitted)).
B. Mr. McDuffie’s Experiential Eligibility Based on His Status as a
Licensed Attorney and His “Active Engagement” in Legal Work for the
District
We thus confront the question whether the experiential eligibility criterion of
“active[] engage[ment] . . . as . . . [a]n attorney employed in the District of Columbia
by the United States or the District of Columbia” can refer to an individual’s use of
their legal skills and training in a non-attorney job, such as that of a Councilmember, 7
or whether it requires that the individual be employed as an attorney. Mr. McDuffie
cites standard and legal dictionary definitions to support the former interpretation:
“Engaged, Merriam-Webster Online Dictionary (‘involved in activity’)” and
7
Although some Councilmembers are trained and have worked as lawyers,
there are no statutory experiential requirements to become a Councilmember; by
design, the office is open to individuals from all walks of life. See D.C. Code
§ 1-204.02.
16
“Engage, Black’s Law Dictionary (11th ed. 2019) (‘To employ or involve oneself;
to take part in; to embark on.’).” Particularly when considered in conjunction with
the rest of the statutory phrase “as . . . [a]n attorney,” these definitions provide little
clarity. We conclude that on this point the statute is ambiguous and seek to interpret
this text “in a manner that makes sense of the statute as a whole by reference to
legislative history and other aids to construction.” Competitive Enter. Inst. v. Mann,
150 A.3d 1213, 1235 (D.C. 2016) (internal quotation marks omitted) (resorting to
established tools of statutory interpretation when the “[l]ack[] [of] a statutory
definition [or] clear dictionary definition . . . le[ft the court] with textual uncertainty”
(internal quotation marks omitted)).
The history of D.C. Code § 1-301.83, discussed above in Part II, shows that
the reference to “an attorney employed in the District of Columbia by the United
States or the District of Columbia” was originally in both the bar membership and
experiential provisions of the bill. The former identified a group of lawyers—law
professors and government attorneys—who, so long as they were employed “in such
capacity,” were not required to satisfy long-term D.C. Bar membership
requirements; the latter established that these same law professors and government
attorneys, along with practicing attorneys and judges, would have the requisite work
experience. As Mr. McDuffie agreed at oral argument, employment “in such
17
capacity” in the bar membership provision of this bill, which referred back to the
phrase “professor of law . . . or . . . an attorney employed . . . by . . . the District of
Columbia,” indicated that the individual had to be employed for a certain amount of
time in their capacity as a law professor or as an attorney to be permitted to fulfill
the bar membership provision in a different way. There is no reason to think that
the same phrase in the same bill was imbued with a different meaning in the
experiential provision when it listed these same professions as qualifying work
experience. See Brown v. Gardner, 513 U.S. 115, 118-19 (1994) (employing the
“presumption that a given term is used to mean the same thing throughout a statute”).
Nor is there any reason to think that the meaning of this same phrase changed when,
in the successor bill that became law, the Council opted to require five years of D.C.
Bar membership in good standing without exception and made no change to the
experiential provision. See Reid, 104 A.3d at 868; Bolz v. District of Columbia, 149
A.3d 1130, 1138 (D.C. 2016) (interpreting a codified phrase in light of a previous
version of legislation where there is “no indication that this alteration was intended
to change the meaning”).
The history of a different statute which the Council expressly invoked as a
model, D.C. Code § 1-204.33(b)(2), see supra note 3, also supports an interpretation
of § 1-301.83(a)(5)(D) that requires a would-be Attorney General candidate to be
18
employed as an attorney. Section 1-204.33(b)(2) allows an individual to fulfill the
experiential requirements to be a judge if they have “been employed as a lawyer by
the United States or the District of Columbia government” for the necessary time,
and Mr. McDuffie argues that the difference in language implies the legislature knew
how to specify “employ[ment] as a lawyer” for Attorneys General if it had wanted
and yet did not do so here. But the evolution of § 1-204.33(b)(2) indicates the two
phrases—“has been actively engaged . . . as . . . [a]n attorney employed . . . by . . .
the District of Columbia” and “has been employed as a lawyer by . . . the District of
Columbia”—are synonymous because the Council replaced the former phrase with
the latter in the current judge statute seemingly without controversy. See D.C. Code
§ 11-1501(b)(3) (original language superseded by § 1-204.33(b)(2)), H.R. Rep. No.
93-703, at 77-78 (1973) (Conf. Rep.) (mentioning the residency requirement but not
others in describing conference committee changes in the bill that ultimately
passed); H.R. Rep. No. 93-482, at 25 (1973) (mentioning the bar requirement
without detail in describing this earlier version of the bill); see also S. Rep. No.
93-219, at 6-7 (1973) (making no mention of judge qualifications). 8
8
To any rejoinder that the Council did not make a similar substitution in the
Attorney General statute, we note that it would not have been easy to do so without
restructuring § 1-301.83(a).
19
Further, to be “actively engaged . . . as . . . [a]n attorney employed in the
District of Columbia by . . . the District of Columbia” under D.C. Code
§ 1-301.83(a)(5)(D) is most reasonably read to impose a bright-line requirement that
an individual be employed by the District in an attorney role, that is, one for which
membership in a bar is required. The alternative—which Mr. McDuffie advocates—
would be to interpret the statute to require the Board to engage in a functional
equivalence assessment that would inject arbitrariness into the experiential
requirements of the statute without any indication, textual or otherwise, that the
Council intended to delegate such discretion to the Board. See In re Settles, 218
A.3d 235, 243 (D.C. 2019) (considering as relevant the potential “practical
problems” and “uncertainty” of one interpretation of a statute); S. Ry. Co. v.
Seaboard Allied Milling Corp., 442 U.S. 444, 457 (1979) (concluding that “Congress
intended no such result” in light of the “[t]he disruptive practical consequences” of
the proffered interpretation of a statute); cf. Unum Life Ins. Co. of Am. v. District of
Columbia, 238 A.3d 222, 232 (D.C. 2020) (in evaluating whether the legislature
properly delegated power to its agencies, we look to “the statutory scheme as a
whole, including the purposes articulated by the legislature, limits [if any] placed on
the delegation, and any guidance given to the agency”).
Interpreting “actively engaged . . . as . . . [a]n attorney” to depend on whether
20
an individual performs work functionally equivalent to that of an attorney would
require an examination of evidence of someone’s day-to-day duties and would lead
to difficult questions of how the nature of such work could objectively be evaluated
or what the quantum of qualifying work would be: would the person have to be
engaged in such work close to 100% of their time, more than 50%, or would some
lesser amount suffice? And because “actively engaged” precedes all four
experiential categories, not just subsection (D), it would inject similar uncertainty
into each provision, forcing the Board to decide what day-to-day tasks qualify and
how much of each is needed to be the functional equivalent of a practicing attorney,
a judge, or a law professor. Meanwhile, nothing in the statute’s text provides any
guidance for how to answer these questions. And the parties have not pointed out to
us, nor have we found, anything in the statute’s text or history indicating either that
the Council appreciated this line-drawing problem or that it intended to leave such
open-ended questions for the Board to determine on a case-by-case basis,
particularly under the time constraints under which these questions will arise. See
D.C. Code § 1-1001.08(o)(2) (requiring the Board to “determine the validity of the
challenged nominating petition not more than 20 days after the challenge has been
filed”). Where it does not appear that the legislature understood that it was creating
anything other than a bright-line criterion, we decline to inject uncertainty into the
statute. See Tenants of 738 Longfellow St., N.W. v. D.C. Rental Hous. Comm’n, 575
21
A.2d 1205, 1213 (D.C. 1990) (explaining that we should not create interpretations
that will force agency action out-of-step with its governing statute).
Interpreting D.C. Code § 1-301.83(a)(5)(D) to impose a bright-line
requirement that an individual be employed by the District in an attorney role also
maintains the distinctions between each subsection of the experiential provision. See
D.C. Bd. of Elections & Ethics v. District of Columbia, 866 A.2d 788, 795 (D.C.
2005) (explaining that the court should avoid interpretations that create superfluity).
To be sure, there will be some overlap between attorneys who have been “actively
engaged . . . in the practice of law” in the District under (A)—i.e., an attorney
engaged by a client to perform legal services 9—and those who are employed in
positions requiring bar membership by the District or United States government
under (D). But contrary to Mr. McDuffie’s arguments, there are a number of United
States and District government jobs that require an individual to be a licensed
9
We rely on the Board’s definition of an attorney “actively engaged . . . in the
practice of law” in the absence of any objection from Mr. McDuffie. See also D.C.
App. R. 49(b) (defining practice of law). Although Mr. McDuffie also cites to
Black’s Law Dictionary to define “practice of law,” its definition is unhelpful in its
circularity—the initial defining phrase is “[t]he professional work of a lawyer”—
and would also include drafting legislation, which Mr. McDuffie has conceded
would not be practice of law and could not be without implicating his non-licensed
colleagues in unauthorized practice. See Practice of Law, Black’s Law Dictionary
(11th ed. 2019).
22
attorney but do not appear to involve practicing law, as evidenced by publicly
available job postings at the time of this writing. 10
We acknowledge that a number of the Councilmembers 11 who enacted the
2009 bill have submitted an amicus brief indicating that they intended to delegate
such line-drawing to the Board. But we cannot give dispositive weight to their
assertions of their memory of their intent. The canons of statutory interpretation on
which this court relies to discern legislative intent require us to look to the text of
the statute and explanations of that text, in particular contemporary ones, by
10
See, e.g., Deputy Staff Counsel, District of Columbia Courts, USAJOBS,
https://www.usajobs.gov/job/738123300; https://perma.cc/7T4A-MV5C; Deputy
Clerk of the Superior Court, District of Columbia Courts, USAJOBS,
https://www.usajobs.gov/job/740778300; https://perma.cc/RJA5-TEB3; Program
Manager (Abuse and Neglect), District of Columbia Courts, USAJOBS,
https://www.usajobs.gov/job/740176800; https://perma.cc/28XJ-WP8F; Clerk of
Court, U.S. Tax Court, USAJOBS, https://www.usajobs.gov/job/730781500;
https://perma.cc/C8LK-DTZ9; Senior Legal Administrator for Trademarks
Technology and Systems, U.S. Patent and Trademark Office, USAJOBS,
https://www.usajobs.gov/job/728253800; https://perma.cc/QHF9-7V7N; Deputy
Special Master (Claims Manager), U.S. Dep’t of Justice, USAJOBS,
https://www.usajobs.gov/job/730688000; https://perma.cc/96JK-KFDM. Links last
accessed August 2, 2023.
11
Amici include eight of the 12 Councilmembers who voted in favor of the
bill (two of the 12 have passed away; one voted against). See Bill No. 18-65, Council
of the District of Columbia (Feb. 2, 2010),
https://lims.dccouncil.gov/Legislation/B18-0065; https://perma.cc/BXX4-PYW4
(click on “View Voting Details” for Feb. 2, 2010 Final Reading). Two of the group
continue to serve on the Council; six are former Councilmembers. They filed in
their individual capacities and were not represented by government counsel.
23
legislators acting in their legislative role; they do not permit us to incorporate into
statutory analysis post-hoc explanations in an amici brief filed by individuals who
served as legislators when the legislation was enacted regarding scenarios there is
no indication they contemplated at the time. See Barber v. Thomas, 560 U.S. 474,
486 (2010) (“[T]he Court normally gives little weight to statements, such as those
of the individual legislators, made after the bill in question has become law.”);
accord Heintz v. Jenkins, 514 U.S. 291, 298 (1995) (rejecting such a statement made
later in the year of the act’s passage because it was “not a statement upon which
other legislators might have relied in voting”); D.C. Appleseed Ctr. for L. & Just.,
Inc. v. D.C. Dep’t of Ins., Sec., & Banking, 54 A.3d 1188, 1214 (D.C. 2012)
(recognizing that the “principal author of the legislation” at issue filed an amicus
brief but relying on her official record statements at the time of consideration of the
bill). 12 To do otherwise would give this court unwarranted power to accord a
12
Mr. McDuffie directs our attention to Cannon v. University of Chicago, 441
U.S. 677, 686 n.7 (1979) (interpreting Title IX to allow a private right of action), in
which the U.S. Supreme Court cited post-enactment legislator statements. But these
citations were in the Court’s procedural history discussion and dealt with the
evolution of subsequent related civil rights legislation premised upon on-the-record,
congressional understandings about Title IX itself. See id. Even so, these remarks
ultimately carried little weight. Id. (noting that the Court could not “accord these
remarks the weight of contemporary legislative history”); see id. at 702 (after
examining the statute’s text, noting only the general assumption “before 1972 and
since,” among all three branches of government and the general public that Title IX
provided a private right of action).
24
meaning to a statute that neither a past nor a current legislature has officially
expressed. Accordingly, we must interpret § 1-301.83(a)(5)(D) as it was written
based on official records that reflect contemporaneous understandings of the statute.
Lastly, although mindful of the canon of statutory construction that election
laws should be interpreted “in an inclusive spirit,” Lawrence, 611 A.2d at 532, this
“spirit” is not meant to undermine “the importance of reasonable regulatory
provisions that are aimed, for example, at ensuring candidate eligibility.” Best v.
D.C. Bd. of Elections & Ethics, 852 A.2d 915, 919 (D.C. 2004). Unlike Lawrence,
where the court was faced with a legal concept that the Board had construed broadly
and was presented with no “compelling reason” to construe it otherwise, see 611
A.2d at 532, here we are interpreting a statute expressly intended to “strengthen the
position of Attorney General through the establishment of minimum qualifications
and a term of service,” Comm. Rep. at 2, and we conclude that strong countervailing
considerations, detailed above, weigh in favor of reading this provision to require
actual employment in a position for which membership in a bar is a condition.
IV. Conclusion
Having concluded that D.C. Code § 1-301.83(a)(5)(D) requires that an
25
individual be employed as a government attorney to be “actively engaged” as one
under the statute, we affirm the Board’s decision that Mr. McDuffie was not
experientially eligible. We do not doubt that Mr. McDuffie’s legal training, skill,
and experience inform how he approaches the job. Nevertheless the job itself cannot
be defined as an attorney role. As noted above, supra note 7, Councilmembers are
by definition not required to be attorneys and they perform distinctly legislative
work. This work deserves the utmost respect, and we do not mean to imply with this
opinion that we have a normative or policy view regarding the eligibility of
Councilmembers to run for the office of Attorney General. But if the Council desires
Councilmembers to be experientially eligible based on their work as such, it must
legislate this result. For the reasons discussed above, we do not understand this to
be either what the statute plainly says or how the statute can reasonably be
inclusively interpreted.
So ordered.