The D.C. Court of Appeals heard arguments Wednesday on the decision to drop Ward 5 Council Member Kenyan McDuffie from the June primary ballot for District attorney general.
D.C.’s Board of Elections ruled earlier this month that he wasn’t qualified to run for the seat. At issue is whether McDuffie has been “actively engaged” as a lawyer for at least five of the past 10 years, as D.C. law requires.
McDuffie attorney Baruch Weiss — who was consistently interrupted trying to make his case to judges Catharine Easterly, Loren AliKhan and Phyllis Thompson — argued for an inclusive reading of D.C. law.
“The current statute says you have to be engaged, not employed,” Weiss said. “And I want to talk about the very important difference in language. Engaged as an attorney, employed in D.C., by the federal or D.C. governments. Let me repeat that language because it’s critical …”
Judge Easterly, seemingly unconvinced, cut Weiss off: “You’re just taking the same language that we’ve just talked about that had a certain meaning before, and now you’re giving it a new meaning.” She added, “Can you explain to me why, just by virtue of moving, it now has a new meaning?”
Weiss countered that it had nothing to do with “moving,” that it was “by virtue of the different word, the provision that you were talking about before, that never made it to the ultimate statute, does not use the word ‘engaged.'”
Easterly said the “natural reading” of the statute is “not just that you have to be employed” by D.C., but that you have to be “employed, plus you are actively engaged.”
McDuffie’s camp continued to argue that the council member was indeed “actively engaged” during his time on the legislative branch.
Judge AliKhan noted that members of the D.C. Council don’t need to be a lawyer to hold a seat.
“So, for your view, it’s ‘Are you doing attorney-like things?’ And I imagine a hearing examiner who’s opining on the law is drawing upon their legal expertise and experience in much the same way as you’re arguing Mr. McDuffie is,” AliKahn said.
“I don’t understand why how the statute defines a particular class of hearing examiners would be dispositive.”
Weiss said one “can resort to a common sense interpretation that says, ‘Is this person using the legal skills that he’s accumulated as a lawyer in the work that he does as a council member?'” He argued that McDuffie was.
“We should let the people decide and vote. In this case, we have someone who is clearly a lawyer and was in a position where he used his legal skills,” Weiss said.
D.C. Board of Elections lawyer Christine Pembroke reasserted the determination that McDuffie isn’t qualified to be on the ballot. She also disagreed with McDuffie’s team’s argument that the letter of the law be viewed in the spirit of inclusivity.
“I disagree with it on two levels,” Pembroke said.
“First of all, I don’t think the standard of review is de novo (Latin for “from the new,” meaning that a case should be decided without reference to any legal conclusion or assumption made by the previous court). I think if the conclusion is made that the statute is ambiguous, this court should defer to the agency interpretation,” meaning the Board of Elections’ decision.
“If the language is clear, then there is no reason to resort to aids of interpretations, such as a presumption in favor of ballot access,” Pembroke said.
Judge Thompson said it was “very difficult” to find an element of the statute being discussed “where there can can be no ambiguity.”
The hearing adjourned without a decision from the justices. The precise timing of a decision was not given.
The D.C. Board of Elections has to finalize ballots by next week.
A spokesperson for the D.C. Court of Appeals told WTOP that the “panel is aware of the time constraints and the matter has been submitted.”