Thursday, August 31, 2023

With The Utmost Respect

The District of Columbia Court of Appeals has issued its opinion explaining the reasons for disqualifying a candidate for the local Attorney General election for failure to meet the statutory "active employed as an attorney" requirement

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.”

Service on the City Council does not count

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.

(Mike Frisch)

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