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McDuffie remains without a vote for the Attorney General, DC Court of Appeals rules

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The DC Court of Appeals on Thursday upheld an election board ruling that knocked out attorney Kenyan R. McDuffie out of the primary vote in June and accepted a rival’s argument that McDuffie’s decade in the DC Council does not meet the statutory requirements for the position.

The decision comes after lawyers for McDuffie, the Election Board and co-attorney Bruce V. Spiva, who posed the challenge, defended their positions in front of three appeals judges Wednesday morning. McDuffie and the Election Board had called for the court to make a decision by Friday, with the board scheduled to conduct a lottery to determine the order of candidates on the ballot.

Last year, McDuffie decided not to run for re-election in Section 5 in favor of a bid for the Attorney General, and launched his campaign with great fanfare outside his family home. Although he had raised more money than his competitors in the race and was widely regarded as a top candidate, the appellate court’s decision struck another blow against his hopes of staying on the ballot while he opened. the door for three Democrats who are less familiar with city voters: partner-in-chief of Venables DC office Brian Schwalb, local attorney Ryan Jones and Spiva, a former managing partner of the firm Perkins Coie.

But on Thursday, McDuffie promised to keep fighting. In a statement, his campaign said it had filed an urgent adjournment of the court’s decision and a request for an expedited re-hearing that would go to the entire DC Court of Appeals, also known as a banc hearing. In the meantime, the statement said, his campaign will continue.

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

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

Baruch Weiss, a lawyer for McDuffie, argued in court Wednesday that McDuffie’s job as a council member meets a DC Code clause stating that the city’s attorney general must have been “actively engaged” as a practicing lawyer, judge, law professor, or ” a lawyer employed in the District of Columbia of the United States or District of Columbia ”for five of the last 10 years before taking office.

Weiss said McDuffie, who has represented Section 5 of the DC Council since 2012, meets those criteria as a licensed attorney employed by the DC government because he uses his legal skills and judgment in his duties as a legislator. He also asked the judges to look into the matter “with a presumption of inclusiveness and a presumption of justification.”

“Council members draft and analyze laws – that’s part of the definition of what a lawyer does,” Weiss said. ‘Those who are not lawyers should hire lawyers to help them with 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 claims.

“Allowing a person to serve as Attorney General simply because they are a lawyer and working in a non-legal capacity of the District, such as a school nurse or IT expert, hardly seems to serve the purpose of adding an experience requirement to a minimum of qualifications for the position, ”was the summary.

DC attorney general hopeful debate; McDuffie without a vote, off stage

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

“There are investigators, accountants, mediators, hearing experts, administrative court judges who we all believe are qualified to stand as attorneys,” Howard said, listing other state attorney positions. “Not because they are engaged in the legal profession … but because they fit into the definition of ‘actively engaged’ as lawyers employed by the government.”

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

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

In their concluding statement, the judges doubled this sentiment, writing that they were not convinced by “twelve years of after-fact views.”

In recent days, McDuffie’s supporters have organized protests on his behalf and discussed options as one enrollment campaign in an attempt to keep his bid alive. While some supporters had lobbied the DC Council to intervene using emergency legislation to clarify the eligibility requirements, Mendelson said last week that he had no plans to introduce such a bill and wanted the appeal process to play out.

Following the panel’s decision 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, though he added that he believes the council should “consider” the eligibility statute at some point.

“I am convinced that the council never intended to exclude a sitting councilor from appearing, provided he or she was an attorney and a member of the DC Bar,” Mendelson said, noting that he helped write the law. “That said, unless there is a a banc appeal, the panel’s decision, in my opinion, will resolve the issue.”

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