In The District of Columbia Court of Appeals: Applicant, V

No.
22-
In the District of Columbia Court of Appeals

KENYAN McDUFFIE,
Applicant,
v.
DISTRICT OF COLUMBIA BOARD OF ELECTIONS,

Respondent.
On Application for Expedited Review of an Order of the

District of Columbia Board of Elections, No. 22-003 (Apr. 18, 2022)
APPLICATION FOR EXPEDITED REVIEW

PURSUANT TO D.C. CODE § 1-1001.08(o)
Thorn L. Pozen Baruch Weiss

Kevin M. Hilgers Stephen K. Wirth
GOLDBLATT MARTIN POZEN LLP Samuel F. Callahan
ARNOLD & PORTER KAYE SCHOLER LLP
1432 K Street, N.W., Suite 400
601 Massachusetts Ave., N.W.
Washington, D.C. 20005 Washington, DC 20001
Tel.: +1 202.942.5000
Joe Sandler Fax: +1 202.942.5999
SANDLER REIFF LAMB baruch.weiss@arnoldporter.com
ROSENSTEIN & BIRKENSTOCK, P.C.
1090 Vermont Ave. N.W., Suite 750
Washington, DC 20005
Attorneys for Applicant Kenyan McDuffie

PARTIES TO THE PROCEEDING
Pursuant to this Court’s Rule 28(a)(2), the following is a list of parties,
intervenors, amici curiae, and counsel in the Board of Elections and appellate
proceedings:
Challenger Challenged Candidate

Bruce V. Spiva Kenyan McDuffie
Challenger’s Counsel Challenged Candidate’s Counsel

Theodore A. Howard Thorn L. Pozen
WILEY REIN, LLP Kevin M. Hilgers
2050 M St., NW GOLDBLATT MARTIN POZEN LLP
Washington, D.C. 20036 1432 K Street, N.W., Suite 400
Washington, D.C. 20005
Agency Respondent Joe Sandler

District of Columbia Board SANDLER REIFF LAMB
of Elections ROSENSTEIN & BIRKENSTOCK, P.C.
Agency’s Counsel
Christine Pembroke
Baruch Weiss
Senior Staff Attorney
Stephen K. Wirth
DISTRICT OF COLUMBIA BOARD
Samuel F. Callahan
OF ELECTIONS
1015 Half Street, S.E. ARNOLD & PORTER
Washington, D.C. 20003 KAYE SCHOLER LLP
i
TABLE OF CONTENTS
Page
PARTIES TO THE PROCEEDING ....................................................................i
TABLE OF AUTHORITIES ............................................................................... iv
STATEMENT CONCERNING EXPEDITED REVIEW AND, IN
THE ALTERNATIVE, REQUEST FOR A STAY ............................... viii
INTRODUCTION................................................................................................... 1
STATEMENT OF JURISDICTION ................................................................... 5
STATEMENT OF THE ISSUES ........................................................................ 5
RELEVANT STATUTORY PROVISIONS ....................................................... 6
STATEMENT OF THE CASE ............................................................................ 7
STATEMENT OF FACTS .................................................................................... 7
A. Factual Background.................................................................................7
B. Legislative History ..................................................................................9
C. Procedural History.................................................................................12
STANDARD OF REVIEW ................................................................................. 14
SUMMARY OF ARGUMENT ............................................................................ 15
ARGUMENT ......................................................................................................... 17
I. This Court Applies a Presumption that Candidates for Elected
Office Are Qualified to Serve ........................................................................ 17
II. Mr. McDuffie Is Qualified to Serve As Attorney General ........................ 20
A. Mr. McDuffie is qualified under the plain language of
§ 1-301.83(a)(5)(D) ..................................................................................20
B. The Board’s reading of the statute renders § 1-301.83(a)(5)(D)
superfluous ..............................................................................................26
CONCLUSION...................................................................................................... 34
CERTIFICATE OF SERVICE .......................................................................... 35
ii
APPENDIX
Board’s Memorandum Opinion and Order (Apr. 18, 2022) ........................... A1
Challenge to Nominating Petition (Mar. 29, 2022) ....................................... A13
Respondent’s Motion to Dismiss Complainant’s Challenge to
Qualifications as a Candidate (Apr. 6, 2022) .......................................... A51
Reply & Opposition to Respondent’s
Motion to Dismiss (Apr. 11, 2022)........................................................... A65
iii
TABLE OF AUTHORITIES
Cases Page(s)
Anderson v. Celebrezze,
460 U.S. 780 (1983)...................................................................................... 17, 18
Bates v. D.C. Bd. of Elections & Ethics,

625 A.2d 891 (D.C. 1993) .................................................................................. 14
Best v. D.C. Bd. of Elections & Ethics,

852 A.2d 915 (D.C. 2004) .................................................................................. 18
Bysiewicz v. Dinardo,
6 A.3d 726 (Conn. 2010) .................................................................................... 19
Cannon v. Gardner,
611 P.2d 1207 (Utah 2010)................................................................................ 19
Carter v. Commission on Qualifications of Judicial Appointments,

93 P.2d 140 (Cal. 1939) ..................................................................................... 19
Cathcart v. Meyer,
88 P.3d 1050 (Wyo. 2004) ................................................................................. 19
D.C. Bd. of Elections & Ethics v. District of Columbia,

866 A.2d 788 (D.C. 2005) .................................................................................. 27
District of Columbia v. Towers,

250 A.3d 1048 (D.C. 2021) .................................................................................ix
Epic Sys. Corp. v. Lewis,

138 S. Ct. 1612 (2018) ................................................................................. 14, 26
Escamilla v. Cuello,
230 Ariz. 202 (2012) ........................................................................................... 19
Gerberding v. Munro,
949 P.2d 1366 (Wash. 1998).............................................................................. 19
Gollin v. D.C. Bd. of Elections & Ethics,

359 A.2d 590 (D.C. 1976) .................................................................................. 18
iv
Cases—Continued Page(s)
Harvey v. D.C. Bd. of Elections & Ethics,

581 A.2d 757 (D.C. 1990) .................................................................................. 14
In re Haworth,
258 A.2d 447 (D.C. 1969) .................................................................................. 14
Kamins v. Bd. of Elections for D.C.,

324 A.2d 187 (D.C. 1974) .................................................................................. 19
Kungys v. United States,

485 U.S. 759 (1988)............................................................................................ 28
*Lawrence v. D.C. Bd. of Elections & Ethics,

611 A.2d 529 (D.C. 1992) ................................................................ 17, 18, 26, 34
Municipality of Anchorage v. Mjos,

179 P.3d 941 (Alaska 2008) .............................................................................. 19
Nat’l Mining Ass’n v. Kempthorne,

512 F.3d 702 (D.C. Cir. 2008)........................................................................... 26
Nebraska Republican Party v. Shively,

971 N.W.2d 128 (Neb. 2022) ............................................................................ 22
Scharn v. Ecker,
218 N.W.2d 478 (S.D. 1974) ............................................................................. 19
Williams v. Rhodes,
393 U.S. 23 (1968)........................................................................................ 17, 18
Williams-Godfrey v. D.C. Bd. of Elections & Ethics,

570 A.2d 737 (D.C. 1990) .................................................................................. 18
Zukerberg v. D.C. pBd. of Elections & Ethics,

92 A.3d 288 (D.C. 2014) .....................................................................................ix
v
Statutes and Rules Page(s)
D.C. Code
§ 1-301.83(a) ................................................................................... 1, 9, 10, 25, 33
§ 1-301.83(a)(5) .................................................................................. 7, 10, 16, 32
§ 1-301.83(a)(5)(D) ................................................................................... passim
§ 1-608.51(2) ....................................................................................................... 30
§ 1-608.51(2)(B) ................................................................................................. 30
§ 1-1001.05(b)(1) ................................................................................................ 18
§ 1-1001.08(o) .....................................................................................................vii
§ 1-1001.08(o)(2) ............................................................................................vii, 5
§ 8-808 ................................................................................................................ 30
§ 50-2301.04 ....................................................................................................... 30
D.C. Court of Appeals Rule 49 ............................................................................. 29
D.C. Rules of Professional Conduct

Rule 3.3 .............................................................................................................. 23
Rule 8.4 .............................................................................................................. 23
Legislative Materials
D.C. Bill 18-65, § 102(a)(3)(B) (introduced Jan. 6, 2009) ............................. 11, 25
Committee on Public Safety and the Judiciary,

Report on Bill 18-65 (Dec. 16, 2009) ....................................................... 1, 9, 10
Other Authorities
63C Am. Jur. 2d § 53 (Feb. 2022) ......................................................................... 20
Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of Legal Texts (2012)............................. 27
Black’s Law Dictionary (11th ed. 2019) ................................................... 22, 24, 29
Classes of Membership, D.C. Bar .......................................................................... 8
Committee on the Judiciary and Public Safety,

Council of the Dist. of Columbia ..................................................................... 23
Council of the Dist. of Columbia, Legislative Drafting Manual (2019).......... 24
vi
Other Authorities—Continued Page(s)
D.C. Bar Ethics Opinion No. 323 (2004).............................................................. 23
D.C. Bar Ethics Opinion No. 336 (2006).............................................................. 23
Legal Drafting: Legislation, Am. Univ. Wash. Coll. of L. ................................ 24
Legislative Drafting Research Fund, Colum. L. Sch. ...................................... 24
Legislative Policy & Drafting Clinic, Bost. Univ. Sch. of L. ........................... 24
Merriam-Webster Online Dictionary .................................................................. 22
Thomas M. Cooley, A Treatise on the Constitutional

Limitations Which Rest upon the Legislative Power of the
States of the American Union (1868) ............................................................. 27
vii
STATEMENT CONCERNING EXPEDITED REVIEW
AND, IN THE ALTERNATIVE, REQUEST FOR A STAY
Applicant Kenyan McDuffie files this application under D.C. Code § 1-
1001.08(o) seeking expedited review of a final order of the Board of Elections,
issued April 18, 2022, declaring him unqualified as a candidate for the position
of Attorney General of the District of Columbia. Mr. McDuffie has filed this
application “[w]ithin 3 days after announcement of the determination of the
Board with respect to the validity of the nominating petition,” and it therefore
is timely. D.C. Code § 1-1001.08(o)(2).
Section 1-1001.08(o)(2) provides that, upon the timely filing of an
application, this Court “shall expedite consideration of the matter.” Expedited
consideration is necessary here because this matter must be resolved in time
for ballots to be printed for the upcoming June primary election.
In particular, although the primary is not until June 21, the Board of
Elections has insisted that Councilmember McDuffie will not be included on
the ballot unless this Court makes its determination by Thursday, April 28,
because it must provide final ballot information to a printer on or before
Monday, May 2. Mr. McDuffie accordingly requests that this Court issue a
schedule for response and reply briefing and oral argument that will allow
resolution of this case by April 28.
viii
In the event that this Court is unable to reach a decision by April 28, Mr.
McDuffie requests that the Court issue a temporary stay of the Board’s
decision and, if necessary, of the upcoming primary election in order to prevent
irreparable harm to Mr. McDuffie and to the District’s voters. A stay is
warranted because, for the reasons stated below, Mr. McDuffie is likely to
prevail on the merits; allowing the primary to proceed without his name on the
ballot would irreparably harm him; and given the broad significance of the
issue in this election and future ones, and voters’ strong interest in being able
to vote for their chosen candidate, the public interest and the equities strongly
favor a short stay to allow this Court to fully consider and resolve the case
before an election is held. District of Columbia v. Towers, 250 A.3d 1048, 1053
(D.C. 2021); see also, e.g., Zukerberg v. D.C. Bd. of Elections & Ethics, 92 A.3d
288, 290 (D.C. 2014) (recognizing Court’s power to order changes to the timing
of elections if election on original schedule “is not practically possible”).
ix
INTRODUCTION
For his entire career, Kenyan McDuffie has used his legal training,
judgment, and experience as an attorney for the public good—first as a law
clerk, then as an assistant state’s attorney and trial attorney in the U.S.
Department of Justice’s Civil Rights Division, and, for the past decade, as an
elected member of the Council of the District of Columbia, representing Ward
5. He is now a candidate for the office of Attorney General of the District of
Columbia.
Attorney General elections are a relatively recent development in the
District. The District Charter was amended in 2010 to provide, for the first
time, that the position of Attorney General would be elected by the people,
rather than appointed by the Mayor. The Council also adopted legislation
supplying the “[m]inimum qualifications and requirements” for holding the
position of Attorney General, D.C. Code § 1-301.83(a), which, per the law’s
drafters, were designed to “ensure[] experience, connection and commitment
to the District”—necessary because the District is “a unique city with a
complicated legal system.”1
1
Committee on Public Safety and the Judiciary, Report on Bill 18-65, at 8
(Dec. 16, 2009), https://bit.ly/3rJUB3P.
1
If anyone has the “experience, connection and commitment to the
District” and its “complicated legal system” necessary to serve as Attorney
General, it’s Mr. McDuffie. He is not only an active member of the D.C. Bar
and a veteran attorney who practiced law for years in the District; he has spent
the last decade writing the District’s laws, analyzing proposed legislation’s
lawfulness and effect, and advising his constituents and fellow
councilmembers on the constitutionality, legality, and substance of the law.
Simply put, he is precisely the sort of candidate District voters and
councilmembers had in mind when they made the office of Attorney General
an elected position and established the office’s minimum qualifications. And
surely none of the attorney-councilmembers who voted for those qualifications
would have intended to exclude themselves from serving.
All that notwithstanding, the D.C. Board of Elections ruled on April 18,
2022, that although Mr. McDuffie is undisputedly an attorney in good standing
with the D.C. Bar and has been employed by the District for ten years as a
Councilmember, he is unqualified to serve as Attorney General on the ground
that he has not “been actively engaged, for at least 5 of the 10 years
immediately preceding the assumption of the position of Attorney General, as
… [a]n attorney employed in the District of Columbia by … the District of
2
Columbia.” D.C. Code § 1-301.83(a)(5)(D). The Board came to that decision
based on its determination that being “actively engaged … as … [a]n attorney”
means being “employed ‘as an attorney’ ”—i.e., the candidate must “have
served or be serving in the position of attorney.” A10 (emphasis added). Only
if one’s status as an attorney is a job requirement, the argument runs, can one
be “engaged … as … [a]n attorney.” Under the Board’s reading, a sixth-year
associate at a white shoe law firm exclusively practicing international law can
be Attorney General; an attorney-councilmember who has spent a decade
drafting, analyzing, and advising on the District’s unique and complex system
of laws cannot.
The Board was wrong. To begin, this Court, like courts across the
Nation, holds that qualifications for elected office must be construed in favor
of the candidate, that there is a presumption that candidates for office are
qualified to serve, and that any doubt or ambiguity must be resolved in favor
of eligibility. That presumption reflects the fact that voters, not bureaucrats,
are best suited to decide whether a candidate is qualified, and it serves the
fundamental right of voters to cast their votes for the person of their choice.
Applying that generous standard here requires reversal—and indeed
the Board’s interpretation fails under any standard. The Board’s additional
3
requirement that candidates be “employed ‘as an attorney’ ” or “in the position
of attorney” finds no support in the statute’s text. The statute does not require
candidates to be “employed” as an attorney but to be “actively engaged … as
… [a]n attorney employed … by … the District.” That is a meaningful
distinction because it is based not on an employee’s job title or qualifications,
but on what they do. And there is no dispute that Mr. McDuffie does the work
of an attorney—that he exercises “legal skills and judgment,” A8—every day
in his role as Councilmember. The legislative history, moreover, shows that
the Council chose a candidate pool that would allow attorneys from a broad
spectrum of the D.C. Bar to run, and that, if they had intended to limit that
pool to attorneys who are “employed” in “the position of attorney,” they knew
how to craft such a requirement but chose not to.
Beyond that, the Board’s reading of the statute renders an entire class
of candidates identified in the statute superfluous. It makes the candidates
described in subsection (D)—those who are “actively engaged … as … [a]n
attorney employed … by … the District”—entirely redundant with candidates
who are “actively engaged … as … [a]n attorney in the practice of law” under
subsection (A) because there is no category of person who is “employed as [an]
attorney[]” who is not also “engaged … in the practice of law.” D.C. Code § 1-
4
301.83(a)(5). Mr. McDuffie’s construction of the statute gives full and
independent effect to each of its provisions; the Board’s does not.
The best reading of the statute’s text, structure, and legislative history
is that Mr. McDuffie has demonstrated that he is qualified to serve as the
District’s Attorney General. That is especially so under a presumption of
eligibility that gives candidates every benefit of the doubt. The Court should
reverse the decision of the Board of Elections and give District voters the full
opportunity to vote for the candidate of their choice.
STATEMENT OF JURISDICTION
On April 18, 2022, the Board of Elections issued a final order
determining that Mr. McDuffie is ineligible for the position of Attorney
General of the District of Columbia. Mr. McDuffie filed this application
“[w]ithin 3 days after announcement of the determination of the Board with
respect to the validity of the nominating petition,” and it therefore is timely.
D.C. Code § 1-1001.08(o)(2). This Court has jurisdiction pursuant to D.C. Code
§ 1-1001.08(o)(2).
STATEMENT OF THE ISSUES
Whether an attorney who is a sitting member of the Council of the
District of Columbia is “actively engaged” as “[a]n attorney employed in the
5
District of Columbia by … the District of Columbia” and therefore is qualified
to serve as Attorney General.
RELEVANT STATUTORY PROVISIONS
Section 1-301.83 of the D.C. Code, titled “Minimum qualifications and
requirements for Attorney General,” provides:
(a) No person shall hold the position of Attorney General for the
District of Columbia unless that person:
(1) Is a registered qualified elector as defined in § 1-

1001.02(20);
(2) Is a bona fide resident of the District of Columbia;
(3) Is a member in good standing of the bar of the District of

Columbia;
(4) Has been a member in good standing of the bar of the

District of Columbia for at least 5 years prior to assuming the
position of Attorney General; and
(5) Has 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.
6
(b) The Attorney General shall devote full-time to the duties of the
office and shall not engage in the private practice of law and shall not
perform any other duties while in office that are inconsistent with the
duties and responsibilities of Attorney General.
STATEMENT OF THE CASE
This application seeks expedited review of a final decision of the Board
of Elections declaring Councilmember Kenyan McDuffie unqualified for the
office of Attorney General of the District of Columbia under D.C. Code § 1-
301.83(a)(5). A1-12. The Board’s decision, issued April 18, 2022, concluded that
although Mr. McDuffie is undisputedly an active attorney in good standing
with the D.C. Bar and has been employed by the District for ten years as a
Councilmember, he is unqualified on the ground that he has not “been actively
engaged, for at least 5 of the 10 years immediately preceding the assumption
of the position of Attorney General, as … [a]n attorney employed in the
District of Columbia by … the District of Columbia.” D.C. Code § 1-
301.83(a)(5). Mr. McDuffie timely filed this application for expedited review
pursuant to D.C. Code § 1-1001.8(o)(2) and seeks reversal of the Board’s order.
STATEMENT OF FACTS
A. Factual Background
Kenyan McDuffie has served as a District Councilmember representing
Ward 5 since 2012, and for that entire period has been an active attorney in
7
good standing with the D.C. Bar. A23-24, A33.2 He was Chair of the Committee
on the Judiciary from 2015 to 2017, where among other major legislative
efforts he oversaw criminal justice reforms that ended the use of solitary
confinement and life sentences in the District. A38. He is now Chair of the
Committee on Business and Economic Development. A38. Before his election
to the Council, from 2008 to 2010 Mr. McDuffie was a trial attorney with the
Civil Rights Division of the U.S. Department of Justice, where among other
responsibilities he worked on cases to reform the policies and procedures of
police departments. A23-24, A33, A37. Before that, he was an Assistant State’s
Attorney in Maryland and a law clerk on the Seventh Judicial Circuit of
Maryland. A23-24, A33.
In addition to his D.C. Bar membership, Mr. McDuffie also has been the
member of multiple voluntary bar associations, including the Washington Bar
Association and the National Bar Association. A59. Through these
memberships, he has participated in legal conferences, panels, and similar
2
In the District, only an attorney with “active” membership is eligible to
practice or hold himself out as licensed to practice law. Attorneys can also be
“inactive,” meaning that they have “been admitted to the D.C. Bar and are
eligible for active membership but do not practice, or in any way hold
themselves out as licensed to practice, in the District of Columbia.” Classes of
Membership, D.C. Bar, https://bit.ly/38bJxW5. Mr. McDuffie has been an
active member of the D.C. Bar since his admission in 2008. See A48.
8
events, as well as received awards, including the National Bar Association’s
“Top 40 Trailblazers Under 40.” Id.
B. Legislative History
In 2010, District voters overwhelmingly ratified an amendment to the
District Charter making the position of Attorney General elected by the
people, rather than appointed by the Mayor. This amendment was proposed
in a 2007 bill, ultimately enacted in 2010 as the Attorney General for the
District of Columbia Clarification and Elected Term Amendment Act, A. 18-
351, § 103(a), 57 D.C. Reg. 3,012, 3,014 (Apr. 9, 2010). The Act’s purpose was
to “codif[y] the institutional independence and make[] modifications to
strengthen the position of Attorney General through the establishment of
minimum qualifications and a term of services.” Committee on Public Safety
and the Judiciary, Report on Bill 18-65, at 1-2 (Dec. 16, 2009) (hereinafter
“Committee Report”), https://bit.ly/3rJUB3P.
The Act imposed a set of “[m]inimum qualifications and requirements”
for holding the position of Attorney General. D.C. Code § 1-301.83(a). The
Council’s report on the legislation explained that these qualifications were
designed to “ensure[] experience, connection and commitment to the
District”—necessary because the District is “a unique city with a complicated
9
legal system.” Committee Report at 8. Under the relevant terms of the Act, a
candidate qualifies if the candidate
[h]as been actively engaged, for at least five of the 10 years immediately
preceding years, 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). The statute also requires that the candidate be a
District resident, and be “a member in good standing of the bar of the District
of Columbia” for at least five years. Id. § 1-301.83(a).
The enacted language of § 1-301.83(a)(5) differs from the language of the
bill as it was first introduced. Originally, the provision that ultimately became
§ 1-301.83(a) stated that, “[i]n the case of a professor of law in a law school in
the District of Columbia or of an attorney employed in the District of Columbia
by the United States or the District of Columbia,” a candidate would be
qualified if he “has been employed in such capacity for at least five years and
has been eligible for membership in the bar of the District of Columbia for at
10
least seven years prior to appointment.” Bill 18-65, § 102(a)(3)(B) (introduced
Jan. 6, 2009) (emphasis added). But this language was eliminated prior to the
bill’s enactment. At the bill’s first reading on January 5, 2010, Councilmember
Mary Cheh, a George Washington University law professor, stated that she
wanted to work with Councilmember Phil Mendelson, the Act’s lead author,
on refining the qualifications requirements before final reading.3 This
discussion prompted changes to the qualifications provision. At second reading
on February 2, the Act’s sponsor, Councilmember Mendelson, moved an
amendment in the nature of a substitute making various changes, including to
the qualifications requirements.4 The amended text no longer required a
candidate “to be employed in such capacity” as an attorney “in the District
Columbia by the United States or the District of Columbia.” Rather, under the
final language as enacted, it sufficed if the candidate was “actively engaged”
as “[a]n attorney employed in the District of Columbia by the United States or
the District of Columbia.” D.C. Code § 1-301.83(a)(5)(D).
3
An audio recording of Councilmember Cheh’s remarks is available at
https://bit.ly/3OuMm5m (beginning at 3:10:20).
4
An audio recording of Councilmember Mendelson’s remarks is available at
https://bit.ly/3rKbDyW (beginning at 2:27:00).
11
C. Procedural History
On March 21, 2022, Mr. McDuffie filed a Declaration of Candidacy for
Attorney General with the Board of Elections. A1. On March 28, the Board’s
Executive Director issued a preliminary determination that Mr. McDuffie met
the qualifications for the office and could be placed on the primary ballot. A1-
2.
The next day, Bruce Spiva, another candidate for Attorney General who
until recently was a partner at the law firm Perkins Coie, filed a challenge to
Mr. McDuffie’s qualifications. A13-17. While acknowledging that Mr.
McDuffie was both an active attorney in good standing and a D.C.
Councilmember, Mr. Spiva asserted that McDuffie was unqualified for the
position of Attorney General under D.C. Code § 1-301.83(a)(5)(D) because he
was not “employed ‘as an attorney’ ”—in other words, that § 1-301.83(a)(5)(D)
required that the candidate be hired specifically to “provid[e] legal services to
the District of Columbia.” A28-29 (emphasis in original).
Mr. McDuffie moved to dismiss the challenge for failure to state a claim.
A51-63. He contended that, as “both an attorney and a Councilmember,” he
fell within the plain language of subsection (D). As Mr. McDuffie explained,
Mr. Spiva’s interpretation would render subsection (D) surplusage: Any
12
candidate hired by the District specifically to serve as an attorney would
necessarily qualify under subsection (A), which covers candidates engaged as
“[a]n attorney in the practice of law in the District of Columbia.” A56-57. Mr.
McDuffie further contended that, even if subsection (D) required active
service in an attorney role, he satisfied that requirement because, among other
things, he “applies his knowledge and skills as an attorney” in working as a
Councilmember and indeed “has dedicated his career as an attorney and public
servant to use the law to ‘uphold[] the public interest’ ”—a “core obligation of
the Attorney General.” A59-60 (quoting D.C. Code § 1-301.81(a)(1)). Limiting
the Attorney General position to only those actively practicing as attorneys,
Mr. McDuffie explained, “would disqualify attorneys who have dedicated their
careers to public service,” contrary to “what the Council intended.” A60.
On April 18, the Board held oral argument and announced its decision
on the record, and it issued a memorandum opinion and order that evening.
A4. The Board upheld Mr. Spiva’s challenge, concluding that Mr. McDuffie
had not “for the requisite time period, been ‘actively engaged … as … [a]n
attorney employed in the District of Columbia by the United States or the
District of Columbia.” A11. The Board adopted Mr. Spiva’s interpretation of
subsection (D) as requiring that a candidate not only be an attorney employed
13
by the District, but also be “employed ‘as an attorney’ ”—i.e., the candidate
must “have served or be serving in the position of attorney.” A10 (emphasis
added); see A11 (candidates must be “hired and act ‘as attorneys’ ” (emphasis
added)). The Board concluded that Mr. McDuffie did not satisfy this
requirement because, although his role involves the execution of “legal skills
and judgment,” “a D.C. Councilmember need not be an attorney, as indeed,
many Councilmembers are not attorneys.” A8.
STANDARD OF REVIEW
This Court generally reviews decisions of the Board of Elections for
reasonableness, but pure “question[s] of law, including statutory
interpretation,” are reviewed de novo. In re Haworth, 258 A.2d 447, 449 (D.C.
1969); see, e.g., Harvey v. D.C. Bd. of Elections & Ethics, 581 A.2d 757, 759
(D.C. 1990) (reversing Board’s interpretation as “inconsistent with the
statutory scheme”). “[I]f the language of the statute involved is clear,” this
Court does “not defer to the agency’s interpretation.” Bates v. D.C. Bd. of
Elections & Ethics, 625 A.2d 891, 893 (D.C. 1993). And when “traditional tools
of statutory construction,” including “canons” of interpretation, resolve
ambiguity in a statute, “Chevron leaves the stage”—the agency cannot obtain
deference. Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1630 (2018).
14
SUMMARY OF ARGUMENT
This Court holds that qualifications for elected office must be construed
in favor of the candidate and that there is a presumption that candidates for
office are qualified to serve. This presumption serves to protect the most
precious freedoms enshrined in the Constitution: the right to associate for the
advancement of political beliefs, and the right of qualified voters to cast their
votes for the candidate of their choice. The statutory qualifications to serve as
Attorney General must be interpreted to effectuate and protect these
fundamental rights.
Mr. McDuffie is qualified to serve as Attorney General under any
standard—and especially under a presumption that gives candidates every
benefit of the doubt. He has served on the D.C. Council for 10 years, has been
a D.C. attorney during that entire period, and routinely uses his legal skills
and expertise in his capacity as a legislator. He is thus qualified for the position
of Attorney General under the plain language of § 1-301.83(a)(5)(D), which
covers candidates who have “been actively engaged, for at least 5 of the 10
years immediately preceding the assumption of the position of Attorney
General, as … [a]n attorney employed in the District of Columbia by the
United States or the District of Columbia.” The Board interpreted the words
15
“actively engaged … as” to impose an additional restriction not found in the
text—namely, that § 1-301.83(a)(5)(D) “appl[ies] only to attorneys employed
as attorneys, in roles where D.C. [Bar] membership is a prerequisite.” A10
(emphasis added). But that interpretation does not accord with ordinary
usage: One can be “actively engaged” in a role without formally being
“employed” to perform that role. The drafting history of § 301.83(a) confirms
that the Council knew how to use language that would have imposed the
Board’s formulation but instead opted for a broader formulation. And under
the well-established presumption of eligibility—which this Court must apply
prior to granting any deference to the Board—any ambiguity must be resolved
in Mr. McDuffie’s favor.
The Board’s atextual reading of the statute creates more problems than
it solves. It renders the candidates described in subsection (D)—those who are
“actively engaged … as … [a]n attorney employed … by … the District”—
entirely redundant with candidates who are “actively engaged … as … [a]n
attorney in the practice of law” under subsection (A). That is because there is
no category of person who is “employed as [an] attorney[]” who is not also
“engaged … in the practice of law.” D.C. Code § 1-301.83(a)(5). Instead, this
Court should give the statute its plain meaning—consistent with the statute’s
16
structure and legislative history and the presumption of eligibility—and reject
any construction of the statute that renders an entire class of candidates
superfluous.
The Court should reverse the Board of Elections and vindicate the
fundamental right of voters to select the candidate of their choice.
ARGUMENT
I. This Court Applies a Presumption that Candidates for Elected

Office Are Qualified to Serve
This Court has long held “that qualifications for candidacy be
interpreted in an inclusive spirit” with a presumption that candidates for
elected office are qualified to serve. Lawrence v. D.C. Bd. of Elections &
Ethics, 611 A.2d 529, 532 (D.C. 1992). This presumption reflects “the fact that
any decision in this area affects not only the prospective candidate but also the
voters as a whole, since a meaningful part of the right to vote is to vote for a
candidate of one’s choice.” Id. Excluding a candidate from running for elected
office thus “implicates basic constitutional rights,” including “ ‘the right of
individuals to associate for the advancement of political beliefs, and the right
of qualified voters, regardless of their political persuasion, to cast their votes
effectively.’ ” Anderson v. Celebrezze, 460 U.S. 780, 787 (1983) (quoting
Williams v. Rhodes, 393 U.S. 23, 30-31 (1968)). And “a critical ingredient of
17
the electorate’s ability to vote effectively is choice among the candidates with
demonstrated support.” Lawrence, 611 A.2d at 532 (quoting Williams-
Godfrey v. D.C. Bd. of Elections & Ethics, 570 A.2d 737, 739 n.4 (D.C. 1990)).
The Supreme Court has explained that these “interwoven strands of ‘liberty,’ ”
protected by the Constitution, “rank among our most precious freedoms.”
Anderson, 460 U.S. at 787 (quoting Williams, 393 U.S. at 31).
This Court has also held that the presumption in favor of candidate
eligibility is consistent with the broader principle that laws affecting the right
to vote should be broadly construed to expand the franchise. See Lawrence,
611 A.2d at 532. This Court has consistently held “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.” Id. (quoting Gollin v. D.C.
Bd. of Elections & Ethics, 359 A.2d 590, 595 (D.C. 1976)). In particular, this
Court “construe[s] our election law and regulations whenever possible so as to
effectuate the basic goal, enshrined in the statute itself, of enabling the voters
to ‘express their preference.’ ” Best v. D.C. Bd. of Elections & Ethics, 852 A.2d
915, 919 (D.C. 2004) (quoting D.C. Code § 1-1001.05(b)(1)). And, in light of
“[t]he fundamental nature of the right involved,” this Court has held “that
construction of the statute in favor of the franchise is the course that we must
18
follow.” Id. (quoting Kamins v. Bd. of Elections for D.C., 324 A.2d 187, 192
(D.C. 1974). The presumption of eligibility serves these interests by enabling
more voters to cast their votes for their chosen candidates.
This Court is not alone in construing election laws broadly to permit
candidates to run for office. These principles have been universally applied by
state courts across the Nation.5 Thus, American Jurisprudence (Second) has
summarized an unbroken line of precedent establishing that “the imposition
5
See, e.g., Municipality of Anchorage v. Mjos, 179 P.3d 941, 943 (Alaska
2008) (“[T]here is a presumption in favor of candidate eligibility”); Escamilla
v. Cuello, 230 Ariz. 202, 205 (2012) (“[D]isqualifications provided by the
legislature are construed strictly[,] and there is a presumption in favor of ’ …
candidates’ eligibility to run for office.” (citation omitted)); Carter v.
Commission on Qualifications of Judicial Appointments, 93 P.2d 140, 142
(Cal. 1939) (“Ambiguities are to be resolved in favor of eligibility to office.”);
Bysiewicz v. Dinardo, 6 A.3d 726, 738 (Conn. 2010) (“[S]tatutory limitations
on eligibility to run for public office should be liberally construed, and any
ambiguities should be resolved in favor of a candidate’s eligibility.”); Scharn v.
Ecker, 218 N.W.2d 478 (S.D. 1974) (“There is a presumption in favor of
eligibility of one who has been elected or appointed to public office, and any
doubt as to the eligibility of any person to hold an office must be resolved
against the doubt.” (citation omitted)); Cannon v. Gardner, 611 P.2d 1207, 1211
(Utah 2010) (“[S]tatutes [addressing right to hold public office] should receive
a liberal construction in favor of assuring … the right to aspire to and hold
public office.”); Gerberding v. Munro, 949 P.2d 1366, 1373 (Wash. 1998)
(“[E]ligibility to an office … is to be presumed rather than to be denied, and
… any doubt as to the eligibility of any person to hold an office must be
resolved against the doubt.” (citation omitted)); Cathcart v. Meyer, 88 P.3d
1050, 1070 (Wyo. 2004) (“[T]here is a strong presumption in favor of eligibility
for office.”).
19
of restrictions upon the right of a person to hold a public office should receive
a liberal construction in favor of the people exercising freedom of choice in the
selection of their public officers,” and that “statutes declaring qualifications
are to receive a liberal construction” in favor of eligibility. 63C Am. Jur. 2d
§ 53 (Feb. 2022) (footnotes omitted). “If there is any doubt or ambiguity in the
applicable restrictions, such doubt or ambiguity must be resolved in favor of
eligibility … .” Id. (footnotes omitted).
II. Mr. McDuffie Is Qualified to Serve As Attorney General
The plain language, structure, and history of § 1-301.83(a) make clear
that Mr. McDuffie—a veteran attorney, sitting Councilmember, and life-long
public servant—is qualified to serve as Attorney General. Any doubt must be
resolved in his favor under the longstanding presumption of eligibility.
A. Mr. McDuffie is qualified under the plain language of

§ 1-301.83(a)(5)(D)
Section 1-301.83(a)(5) provides that a candidate for Attorney General is
qualified if—in addition to other requirements not disputed here—the
candidate “[h]as been actively engaged, for at least 5 of the 10 years
immediately preceding the assumption of the position of Attorney General, as
… [a]n attorney employed in the District of Columbia by the United States or
the District of Columbia.” Mr. McDuffie is qualified under this provision. He
20
undisputedly has been employed for ten years by the District of Columbia as
a Councilmember, and during this entire period has been an active attorney in
good standing with the D.C. Bar.
The Board nonetheless found Mr. McDuffie unqualified because D.C.
Councilmembers are not strictly required to be attorneys. The Board adopted
Mr. Spiva’s argument that § 1-301.83(a)(5)(D) “appl[ies] only to attorneys
employed as attorneys, in roles where D.C. [Bar] membership is a
prerequisite.” A10 (emphasis added) (quoting A70). In other words, the Board
concluded that a candidate cannot be actively engaged as an attorney
employed by the District of Columbia under subsection (D) unless he is
specifically is “serving in the position of attorney.” A10-11 (emphasis added);
see A11 (candidates must be “hired and act ‘as attorneys’ ” (emphasis added)).
The result, implausibly, is that the attorney-councilmembers who adopted the
law—those perhaps most knowledgeable about the very laws the Attorney
General is responsible for enforcing—disqualified themselves from serving as
Attorney General.
The problem with the Board’s analysis is that the text of subsection (D)
does not impose any requirement that a candidate be “employed as [an]
attorney[]” or “serv[e] in the position of attorney.” Rather, it requires that the
21
candidate be “actively engaged” as “[a]n attorney” employed by the District.
And contrary to the Board’s suggestion, the phrase “actively engaged as”
cannot reasonably be interpreted to restrict the category of qualified
individuals to those with jobs requiring attorney status.
As a matter of plain English, being “engaged as” something does not
strictly depend on one’s title or formal job requirements. Rather, it depends
on what the person actually does. See, e.g., Engaged, Merriam-Webster Online
Dictionary (“involved in activity”); Engage, Black’s Law Dictionary (11th ed.
2019) (“To employ or involve oneself; to take part in; to embark on.”). As
another high court recently explained in rejecting a narrow interpretation of
a qualifications provision for county attorney: “One can be engaged in the
practice of law in a multitude of different ways,” and what matters are
candidates’ “day-to-day activities,” not their “title.” Nebraska Republican
Party v. Shively, 971 N.W.2d 128, 144 (2022). And being “actively engaged” in
a certain enterprise does not mean the person does it to the exclusion of all
other enterprises. See id. (“ ‘practiced law actively’ means engaged in giving
advice or rendering such service as requires the use of any degree of legal
knowledge or skill and doing so on a daily or routine basis”). For instance,
someone employed as an attorney at a law firm can be “actively engaged as”
22
the head of a practice group, as a firm ombudsman, as a mentor to a junior
attorney, or as a member of the firm’s hiring committee.
So too, while Councilmembers are not strictly required to be attorneys,
Mr. McDuffie himself is “actively engaged as” an attorney employed by the
District. He is a licensed attorney in active status with the D.C. Bar, meaning
that he is governed by the Rules of Professional Conduct that apply to
attorneys.6 And his role as Councilmember undisputedly involves exercising
legal judgment and expertise. Mr. McDuffie, for example, has authored
numerous laws, exercised oversight over multiple District agencies—
including the Office of the Attorney General 7—to evaluate their compliance
with legal obligations, and supervised the attorneys employed on his staff. He
frequently must investigate the real-world impact of existing District laws on
6
The D.C. Bar has recognized that a number of provisions of the Rules of
Professional Conduct apply “to attorneys in whatever capacity they are
acting—it is not limited to conduct occurring during the representation of a
client.” D.C. Bar Ethics Opinion No. 323 (2004) (Rule 8.4 applicable to federal
officials with national security or intelligence positions who are members of
the bar even though they are not employed as attorneys); see also D.C. Bar
Ethics Opinion No. 336 (2006) (court-appointed guardian who is a member of
the Bar is bound by Rules 3.3 and 8.4 even though not acting as the
incapacitated individual’s counsel, because all members of the Bar are bound
by those rules regardless of the capacity in which they are acting).
7
Committee on the Judiciary and Public Safety, Council of the Dist. of
Columbia, https://bit.ly/3Ov8Hjt.
23
residents, and drafts and reviews legislation with the goal of advancing the
public interest. These activities are indistinguishable from activities conducted
by the attorneys in the Council’s Office of the General Counsel. See Council of
the Dist. of Columbia, Legislative Drafting Manual (2019), https://bit.ly/
3v5hWPH.
While Mr. McDuffie undertakes this legislative work for the public
rather than for a particular client, these legislative activities are
quintessentially legal in nature, and draw extensively upon McDuffie’s legal
training, judgment, and experience. Leading law schools teach courses and
offer clinics focused on legislative drafting.8 And indeed, “drafting legislation
and court rules” falls within the “practice of law” as that phrase is defined in
the leading legal dictionary. See Practice of Law, Black’s Law Dictionary (11th
ed. 2019).
If ordinary meaning left any doubt, the Board’s contrary understanding
is repudiated by the provision’s drafting history—which makes clear that the
Council knew how to limit the category of qualified individuals to those
8
See, e.g., Legal Drafting: Legislation, Am. Univ. Wash. Coll. of L.,
https://bit.ly/3k5e4ri; Legislative Drafting Research Fund, Colum. L. Sch.,
https://bit.ly/3vBgCmp; Legislative Policy & Drafting Clinic, Bost. Univ. Sch.
of L., https://bit.ly/3vzqmxN.
24
“employed as” attorneys but rejected that formulation. When first introduced
in the D.C. Council, the provision that ultimately became § 1-301.83(a) stated
that, “[i]n the case of … an attorney employed in the District of Columbia by
the United States or the District of Columbia,” a candidate would be qualified
if, among other things, he “has been employed in such capacity for at least five
years and has been eligible for membership in the bar of the District of
Columbia for at least seven years prior to appointment.” Bill 18-65,
§ 102(a)(3)(B) (introduced Jan. 6, 2009) (emphasis added). But that language—
focused on whether the candidate is “employed” in an attorney “capacity”—
was not ultimately enacted. Instead, in the final version of the bill, it sufficed
if the candidate was “actively engaged” as “[a]n attorney employed in the
District of Columbia by the United States or the District of Columbia.” Had
the Council intended to limit candidates for Attorney General to those
employed as attorneys, it could readily have done so by using the very
formulation contained in the original bill, by requiring candidates “to be
employed in such capacity” as an attorney for the District. But the Council did
not adopt that formulation; it used broad language covering those individuals
who were attorneys and were employed by the District but who were not
25
specifically employed by the District in that capacity. That describes Mr.
McDuffie.
Finally, to the extent that text and history leave any ambiguity, the
longstanding presumption of candidate eligibility requires the Court to resolve
that ambiguity in Mr. McDuffie’s favor. “[Q]ualifications for candidacy” must
“be interpreted in an inclusive spirit”—in part because “a critical ingredient
of the electorate’s ability to vote effectively is choice among the candidates
with demonstrated support.” Lawrence, 611 A.2d at 532. As an established
canon of statutory construction, the presumption in favor of eligibility “trumps
[agency] deference,” particularly because the presumption has constitutional
footing. Nat’l Mining Ass’n v. Kempthorne, 512 F.3d 702, 711 (D.C. Cir. 2008);
see also, e.g., Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1630 (2018) (“Where,
as here, the canons supply an answer, ‘Chevron leaves the stage.’ ”). Mr.
McDuffie is a devoted public servant who uses his legal skills and training
every day to legislate for the public good. The District’s voters should be
permitted to vote for him.
B. The Board’s reading of the statute renders § 1-301.83(a)(5)(D)

superfluous
Even putting aside the plain text and legislative history of § 1-301.83(a),
the Board of Election’s reading of the statute to require candidates who are
26
employed by the District to be “serving in the position of attorney” or
“employed as attorneys,” A10, creates an intractable structural problem. It
renders the class of candidates described in subsection (D) entirely redundant
with candidates who are “actively engaged … as … [a]n attorney in the
practice of law” under subsection (A) because there is no category of person
who is “employed as [an] attorney[]” who is not also “engaged … in the
practice of law.” That superfluity can be avoided, however, by adopting Mr.
McDuffie’s construction of the statute, which gives separate meaning to each
of the statute’s provisions.
“A basic principle [of statutory construction] is that each provision of [a]
statute should be construed so as to give effect to all of the statute’s provisions,
not rendering any provision superfluous.” D.C. Bd. of Elections & Ethics v.
District of Columbia, 866 A.2d 788, 795 (D.C. 2005) (internal citations omitted).
“[T]he courts must … lean in favor of a construction which will render every
word operative, rather than one which may make some idle and nugatory.”
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts 174 (2012) (quoting Thomas M. Cooley, A Treatise on the Constitutional
Limitations Which Rest upon the Legislative Power of the States of the
American Union 58 (1868)). This principle, known as the surplusage canon or
27
the rule against superfluity, is a “cardinal rule of statutory interpretation,”
which ensures that “no provision should be construed to be entirely
redundant.” Kungys v. United States, 485 U.S. 759, 778 (1988) (plurality op.).
The Board of Elections violated this cardinal rule. It adopted Mr. Spiva’s
argument that § 1-301.83(a)(5)(D) “appl[ies] only to attorneys employed as
attorneys, in roles where D.C. [Bar] membership is a prerequisite.” A10
(quoting A70). The Board reasoned that any other reading would render the
phrase “actively engaged … as … an attorney” superfluous. See id. But the
opposite is true: The Board’s reading renders all of § 1-301.83(a)(5)(D)
inoperative, for in every case where an attorney is “employed as [an]
attorney[],” he or she will also qualify under § 1-301.83(a)(5)(A) as “[a]n
attorney in the practice of law.”
Take, for example, the “attorneys employed as attorneys” that the
Board identified in its decision: “Assistant Attorneys within the Office of
Attorney General, Counsel for Agencies, or Counsel to the Councilmembers.”
A8. Each of these positions entails “the practice of law” under any definition
of that term. Each would therefore qualify to serve as Attorney General under
28
subsection (A).9 By contrast, the Board did not identify a single example of an
individual falling within its understanding of subsection (D)—i.e., an
“attorney[] employed as [an] attorney[], in [a] role[] where D.C. [Bar]
membership is a prerequisite,” A10—who would not also qualify under
subsection (A) as “[a]n attorney in the practice of law.” In other words, under
the Board’s reading, subsection (D) is entirely subsumed, and rendered
superfluous, by subsection (A).
For his part, Mr. Spiva asserted before the Board that some “hearing
examiners and administrative judges at the D.C. Office of Employee Appeals
and many other agencies are required to be admitted to the D.C. Bar and thus
employed as attorneys.” A66. From this, he suggests, “[o]ne might therefore
argue that these attorneys are not ‘actively engaged … as … an attorney in
the practice of law’ as contemplated by section 1-301.83(a)(5)(A)” but
9
See, e.g., D.C. Ct. App. R. 49 (“ ‘Practice of Law’ means the provision of
professional legal advice or services where there is a client relationship of trust
or reliance.”); Practice of Law, Black’s Law Dictionary (11th ed. 2019) (“The
professional work of a lawyer, encompassing a broad range of services such as
conducting cases in court, preparing papers necessary to bring about various
transactions from conveying land to effecting corporate mergers, preparing
legal opinions on various points of law, drafting wills and other estate-planning
documents, and advising clients on legal questions.”).
29
nonetheless qualify under § 1-301.83(a)(5)(D). Id. These examples in fact prove
the opposite point.
To begin, as a factual matter, many of these individuals are not actually
required to be members of the D.C. Bar. See, e.g., D.C. Code §§ 8-808, 50-
2301.04. And, of course, if the District Council were concerned solely with the
narrow class of hearing examiners and administrative law judges who are
required to be D.C. Bar members, they could have simply included these quasi-
judicial officers in the statute, much like they expressly identified judges in
subsection (B).
More fundamentally, the District employees Mr. Spiva identified are
simply not “employed as attorneys,” A66, or “serving in the position of
attorney.” A10. They are employed as, and serving in the position of, hearing
examiners and administrative judges.10 The mere fact that D.C. Bar
membership may be a hiring qualification for some of these roles does not
10
Indeed, most of these employees are expressly not considered to be acting
as “attorneys” under District law for the purposes of the Merit Personnel
System. See D.C. Code § 1-608.51(2) (“ ‘Attorney’ means: (A) Any position
which is classified as part of Series 905, except for any position that is occupied
by a person whose duties, in whole or in substantial part, consist of hearing
cases as an administrative law judge or as an administrative hearing
officer”). District law does consider a “hearing examiner employed by the
Office of Employee Appeals” to be serving as an “attorney,” D.C. Code § 1-
608.51(2)(B), but this narrow carve-out proves the rule.
30
mean that the individual has been “employed ‘as an attorney’ ” or is “serving
in the position of attorney.” A10 (emphasis added). Instead, these roles, like
the role of Councilmember, require the application of legal judgment,
reasoning, and skill in the rendering of legal decisions and opinions.
Put differently, in light of the fact that some hearing examiners need not
be attorneys, they cannot be said to be “employed as attorneys.” A10
(emphasis added). But those among them who are attorneys and use their
skills as attorneys in the course of their work are clearly “actively engaged …
as … attorney[s] employed … by … the District of Columbia,” D.C. Code § 1-
301.83(a)(5)(D) (emphasis added), in the sense that they are actively doing the
work of an attorney as part of their employment. See supra Section II.A. These
individuals therefore would qualify to run for Attorney General under the plain
reading of § 1-301.83(a)(5)(D) that Mr. McDuffie advocates. But they would
not qualify under Board’s additional requirement that they be “employed as
attorneys” or “serving in the position of attorney.” A10.
The upshot of all this is that the construction of the statute advocated by
Mr. Spiva and adopted by the Board fails to give full effect to all of § 1-
301.83(a)’s text. But that is not the only reading, and the alternatives would
permit Mr. McDuffie to run for office, consistent with the presumption of
31
eligibility. For one, the Court could adopt a very broad reading of § 1-
301.83(a)(5) to permit any attorney employed by the District to run for
Attorney General, regardless of whether he or she uses his legal skills on the
job. But it need not go so far. Mr. McDuffie’s narrower reading of “engaged as
… [a]n attorney” to mean actively doing the work of an attorney—like he does
in his role as Councilmember—is also consistent with the plain text of the
statute and with the presumption of eligibility.
To be sure, the Board based its “employed as attorneys” requirement at
least in part on its “concern[]” about “the implications of … considering, on a
case-by-case basis,” arguments made by individuals who are not “employed as
attorneys” or “serving in the position of attorney” that they are nonetheless
the “ ‘functional equivalent’ because their job entails reading laws, interpreting
laws, and the like.” A10-11. According to the Board, there is no logical stopping
point between District employees like Mr. McDuffie, who indisputably bring
their legal training, judgment, and experience as an attorney to bear in the
course of their employment by the District, and others who, despite being an
active member of the D.C. Bar, do not use any legal training on the job. See
A8, A11.
32
But Mr. McDuffie is not arguing that he is the “functional equivalent” of
someone actively engaged as an attorney employed in that capacity by the
District; he is arguing that he is actively engaged as an attorney employed by
the District. As described above, every day Mr. McDuffie uses his legal
training, judgment, and experience in the execution of his duties as
Councilmember. See supra Section II.A. That is all that is required for him to
be “actively engaged … as … [a]n attorney” under § 1-301.83(a)(5)(D)’s plain
text. And that fact also readily distinguishes this case from that of the “school
teacher” “who happens to be an attorney in good standing with the D.C. Bar.”
A8. School teachers, unlike Councilmembers, do not routinely use their legal
expertise as part of their employment and thus are not “actively engaged” as
attorneys.
In any event, this Court need not conclusively resolve every possible
hypothetical now. It need only decide that Mr. McDuffie—a veteran attorney
and sitting Councilmember who actively uses his legal training and skills to do
legal work on the public’s behalf—is qualified to serve as Attorney General of
the District. The plain text, structure, and legislative history of § 1-301.83(a)
confirm that fact. And this Court’s longstanding and universally accepted
33
presumption that candidates for elected office are qualified to serve removes
any doubt. See Lawrence, 611 A.2d at 532.
CONCLUSION
The Court should reverse the decision of the Board of Elections.
Dated: April 21, 2022 By: /s/ Baruch Weiss

Baruch Weiss
Stephen K. Wirth
Samuel F. Callahan
ARNOLD & PORTER KAYE SCHOLER LLP
Washington, DC 20001-3743
Tel.: +1 202.942.5000
Fax: +1 202.942.5999
baruch.weiss@arnoldporter.com
Thorn L. Pozen
Kevin M. Hilgers
GOLDBLATT MARTIN POZEN LLP
Joe Sandler
SANDLER REIFF LAMB
ROSENSTEIN & BIRKENSTOCK, P.C.
Attorneys for Applicant
Kenyan McDuffie
34
CERTIFICATE OF SERVICE
I hereby certify that on April 21, 2022, consistent with guidance from the
Clerk of the Court, I filed this application with the Court by email. I obtained
consent to serve this application by email on the respondent and the parties in
the Board of Elections, and accordingly have served the following individuals
by email:
Christine Pembroke
DISTRICT OF COLUMBIA BOARD
OF ELECTIONS
1015 Half Street, S.E.
cpembroke@dcboe.org
Counsel for Respondent District of

Columbia Board of Elections
Theodore A. Howard
WILEY REIN, LLP
2050 M St., NW
thoward@wiley.law
Counsel for Bruce V. Spiva
Dated: April 21, 2022 /s/ Stephen K. Wirth

Stephen K. Wirth
35
APPENDIX
APPENDIX TABLE OF CONTENTS
Board’s Memorandum Opinion and Order (Apr. 18, 2022) .............................. A1

Challenge to Nominating Petition (Mar. 29, 2022) ......................................... A13
Respondent’s Motion to Dismiss Complainant’s Challenge to
Qualifications as a Candidate (Apr. 6, 2022) ............................................ A51
Reply & Opposition to Respondent’s
Motion to Dismiss (Apr. 11, 2022) ............................................................. A65
DISTRICT OF COLUMBIA
BOARD OF ELECTIONS
Bruce V. Spiva, )
Challenger ) Administrative
) Order #22-003
)
v. ) Re: Challenge to Qualification
) for the Office of
) Attorney General for the
Kenyan McDuffie, ) District of Columbia
Candidate. )
MEMORANDUM OPINION AND ORDER
Introduction
This matter came before the District of Columbia Board of Elections (“the Board”) on April
18, 2022. It is a challenge to the candidacy of Kenyan McDuffie (“Candidate McDuffie”) for the
office of Attorney General for the District of Columbia (“Attorney General”) filed by Bruce V.
Spiva (“Mr. Spiva” or “the Challenger”). Chairman Gary Thompson and Board Members Michael
Gill and Karyn Greenfield presided over the hearing. Mr. Spiva was represented by Theodore A.
Howard, and Candidate McDuffie was represented by attorneys Thorn Pozen, Kevin Hilgers, and
Joseph Sandler.
This Memorandum Opinion, which constitutes the Board’s conclusions of law,
memorializes the oral ruling the Board rendered during the hearing on April 18, 2022.
Background
On March 21, 2022, Candidate McDuffie filed with the Board a Declaration of Candidacy
for the office of Attorney General (in which document he attested to meeting the qualifications for
that office), as well as a nominating petition and other documents. On March 28, 2022, the
Executive Director (taking the attestations as correct) issued a preliminary determination that
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Candidate McDuffie met the qualifications necessary to place his name on the primary ballot as a
candidate for the office of Attorney General. The notice of the preliminary determination advised
that the nominating petition challenge period for the June 21, 2022 Primary Election (“the Primary
Election”) would begin on March 26, 2022 and end on April 4, 2022.
On March 29, 2022, Mr. Spiva filed with the Board a written “Challenge to a Nominating
Petition” (“the Challenge”). The Challenge is signed and witnessed by a Board employee, and
there is no dispute as to its authenticity or genuineness on the part of Mr. Spiva. The Challenge,
relies on D.C. Official Code § 1-1001.08(o)(1) as a jurisdictional basis, correctly so as noted
below.1 In the Challenge, Mr. Spiva argues that Candidate McDuffie is not qualified to be on the
ballot for the office of Attorney General because he does not meet the requirements of D.C. Official
Code §1-301.83(a), which is incorporated by reference into the D.C. Charter.2
The controlling statute, D.C. Code §1-301.83(a), provides in full:
(a) No person can hold the position of Attorney General for the District of
Columbia unless that person:
(1) Is a registered qualified elector of the District of Columbia;
(2) Is a bona fide resident of the District of Columbia;
(3) Is a member in good standing of the bar of the District of Columbia;
(4) Has been a member in good standing of the bar of the District of
Columbia for least 5 years prior to assuming the position of Attorney
General; and
(5) Has 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;
1
That provision states in pertinent part:
The Board is authorized to accept any nominating petition for a candidate for any office as bona
fide with respect to the qualifications of the signatures thereto if the original or facsimile thereof has
been posted in a suitable public place for a 10-day period beginning on the third day after the filing
deadline for nominating petitions for the office. Any registered qualified elector may within the 10-
day period challenge the validity of any petition by written statement signed by the challenger and
filed with the Board and specifying concisely the alleged defects in the petition.
2
See D.C. Charter, Sec. 435(d); D.C. Code §1-204.35(d) (“Any candidate for the position of Attorney General shall
meet the qualifications of [D.C. Official Code §1-301.83], prior to the day on which the election for Attorney
General is to be held”).
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(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.3
The Parties do not dispute that Candidate McDuffie satisfies the requirements of (a)(1),
(2), (3), and (4), and further, that Candidate McDuffie does not satisfy the requirements of
(a)(5)(A), (B), or (C). The Parties also do not dispute that he is employed by the District of
Columbia. The issue thus comes down to the interpretation and application of §1-301.83 (a)(5)(D)
(“Section “(a)(5)(D)”), namely, has Candidate McDuffie, as a D.C. Councilmember, been
“actively engaged…as an attorney employed…by…the District of Columbia.” This issue depends
on what it means to be “actively engaged” specifically “as an attorney.”
On March 30, 2022, the Board scheduled a prehearing conference between the parties to
be held on April 13, 2022. Subsequently, the Board established a briefing schedule for the parties.
Pursuant to this schedule, Candidate McDuffie filed a Motion to Dismiss (“Motion to Dismiss”)
the Challenge on April 6, 2022, and Mr. Spiva filed a Reply & Opposition to the Motion to Dismiss
on April 11, 2022 (“Reply”). On April 12, 2022, Candidate McDuffie filed a Motion for Leave to
File a Sur-Reply/Reply and Sur-Reply/Reply to the Reply/Opposition to the Motion to Dismiss
(“Sur-Reply”). Each of the pleadings in this matter are incorporated by reference into this Order.
In the Sur-Reply (the filing of which is not expressly allowed by Board rules), Candidate
McDuffie raised new procedural arguments against the Challenge. Specifically, he asserts that Mr.
Spiva “failed to follow the governing procedural requirements for an action before the Board to
3
Similar language is found with respect to the qualifications to be a D.C. Judge at D.C. Code §11-1501.
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challenge candidate qualifications, such as not filing a complaint that was signed and sworn …
and notarized, and not serving [Candidate McDuffie] with the complaint.”4
On April 13, 2022, the Board’s Office of the General Counsel (“OGC”) convened a
prehearing conference in the matter as allowed by 3 DCMR §415.1. During the prehearing
conference, the Parties agreed to stipulate that there were no facts that are in dispute, and that an
evidentiary hearing was thus unnecessary. The OGC issued a prehearing conference order
indicating that the Board hearing scheduled for April 18, 2022 would be converted to oral
argument on the Motion to Dismiss, the outcome of which would resolve the issue as a matter of
law. The prehearing conference also established that the Board would entertain the Sur-Reply at
the hearing.
On April 18, 2022, the Board heard oral argument in the matter, during which the parties
in the matter reiterated and expanded upon the contentions made in their respective pleadings.
After the argument, the Board entered into executive session to deliberate (as per D.C. Code §2-
575(b)), and thereafter announced its determination on the record.
Discussion
The Sur-Reply
In his Motion to Dismiss, Candidate McDuffie does not question Mr. Spiva’s assertion that
the Board has jurisdiction to determine the issue of Candidate McDuffie’s qualifications to serve
as Attorney General. Rather, he casts Mr. Spiva’s challenge as a “Complaint,” and seeks to have
it dismissed for failure to state a claim for which relief may be granted. It is not until the submission
of the Sur-Reply that Candidate McDuffie asserts, in the alternative, that the “Challenge” approach
4
Sur-Reply at 3.
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is improper and that the failure to file and properly serve a captioned “Complaint” warrants
rejecting the improperly styled “Challenge.”
As underscored at argument, the Board has the authority under its regulations to waive any
of its pleading or technical requirements.5 In this instance, Candidate McDuffie was not prejudiced
by the manner in which Mr. Spiva challenged his qualification, captioned as a “Challenge” instead
of a “Complaint.” Even prior to the filing of the Challenge, the media disclosed that Mr. Spiva
would be raising the instant issue of Mr. McDuffie’s qualifications, and there is no dispute that
Candidate McDuffie and his counsel received a copy of the Challenge shortly after it was filed on
March 29, 2022. Mr. McDuffie did not allege that the timing of actual notice of the Challenge
impeded his ability to respond to the Challenge, which he did by April 6, 2022. Since the Parties
agreed that no material facts were in dispute, the absence of a complaint’s technical averments was
of no consequence. Finally, given the authority (discussed below) indicating that a challenge is, in
fact, the appropriate vehicle for raising an issue of candidate qualification, Mr. Spiva has good
cause for proceeding in this manner. Accordingly, and assuming for the sake of argument that Mr.
Spiva should have proceeded by filing a “Complaint,” we hereby waive the Board’s rules
concerning the filing of complaints and allow the Challenge to proceed. In substance, Mr. Spiva
timely raised the issue in hand, and the manner in which he did so is of no consequence, let alone
prejudice, to the candidate.
In any event, the statutory challenge process and case law indicates that candidate
qualifications are properly presented under petition challenge procedures. The Board is statutorily
charged with conducting elections, delegating to Board officials the authority to carry out the
5
3 DCMR §400.5 (“The Board may, for good cause shown, waive any of the provision of this chapter if, in the
judgment of the Board, the waiver will not prejudice the rights of any party and is not otherwise prohibited by law.”
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purposes of the elections laws, and issuing regulations, including those necessary to determine that
candidates meet the statutory qualifications for office.6 D.C. Official Code § 1-1001.08(b)(1)(D)
provides that “[a]ny candidate for the position of Attorney General shall also meet the
qualifications required by § 1-301.83 before the day on which the election for Attorney General is
to be held.”7 3 D.C.M.R. § 601.9. requires the Board’s Executive Director to make a preliminary
determination as to a candidate’s qualifications for the office sought. This preliminary
determination does not “preclude further inquiry into or challenge to the eligibility of an individual
for candidacy or office made prior to the certification of the election results.” 3 D.C.M.R. § 601.9.
These and other authorities grant the Board responsibility to determine a candidate’s qualifications
at any time during the electoral process.8
Accordingly, to the extent that Candidate McDuffie’s Motion to Dismiss suggests that the
correct procedure for addressing the qualification issue is a complaint as opposed to a challenge,
Lawrence precludes such a strict reading of section 1-1001.08(o)(1).9 We conclude that the 10-
6
D.C. Official Code § 1-1001.05(a)(3), (14).
7
D.C. Official Code § 1-1001.08(b)(1)(D).
8
See Kabel v. D.C. Bd. of Elections and Ethics, 962 A.2d 919, 921 (D.C. 2008) (“we have no doubt the Board could
have . . . refused to certify [a candidate] as ‘eligible’ to take office.”); Best v. Bd. of Elections and Ethics, 852 A.2d
815, 919 (D.C. 2004) (recognizing the importance of Board’s regulation which ensures candidate eligibility) (citation
omitted)); Lawrence, supra, v. D.C. Bd. of Elections & Ethics, 611 A.2d at 531; McFarland v. Pemberton, 530 S.W.3d
76 (Tenn. 2017) (by necessary implication, county election commission had authority to resolve candidate
qualification (residency); commission’s authority was not merely ministerial and did not violate separation of powers).
Having concluded that we have authority to determine whether a candidate is qualified, we do not intend to reach the
question of whether the Board has an affirmative duty to investigate candidate qualifications. McInnish v. Bennett,
150 So.3d 1045 (Ala.), cert. denied, 135 S.Ct. 232 (2014) (dissenting and concurring opinions discussing whether
Secretary of State had an affirmative duty to investigate whether Barack Obama qualified as a natural-born-citizen
under U.S. Const. Art. II, § 1, cl. 4).
9
In that case, the D.C. Court of Appeals addressed a residency challenge to the qualifications of a candidate for the
D.C. Council. In concluding that that qualifications challenge should be made as part of the petition challenge process,
the Court stated:
[t]hus, we read broadly the provision of § 1-1312(o) [now §1-1001.08(o)] allowing challenges to
“the validity” of any petition as establishing a mechanism for review of challenges to the placing of
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day period provided under D.C. Official Code § 1-1001.08(o)(1) for bringing challenges to
nominating petitions covers challenges based on candidate qualifications as well as on nominating
petition insufficiency.
This conclusion obviates the need to address the claims in the sur-reply that Mr. Spiva
followed improper procedures in raising his qualification challenge. Insofar as the procedural
issues raised for the first time in the Sur-Reply have been effectively rendered moot by our
conclusion, and the Sur-Reply’s arguments on the merits do not add materially to the discussion,
we hereby deny the Sur-Reply.10
The Motion to Dismiss
Candidate McDuffie does not claim to have been actively engaged for the requisite time
period as either an attorney in “the practice of law” in the District, a judge of a court in the District,
or a professor of law in a law school in the District. Mr. Spiva does not contest that Candidate
McDuffie is both an attorney and a District government employee. Thus, the precise question
before the Board is whether Section (a)(5)(D) requires that a person seeking to qualify under this
provision must have been “actively engaged” for the requisite time period “as an attorney
employed in the District of Columbia by the District of Columbia.”
Mr. Spiva asserts that in addition to being an attorney (i.e., a member of the D.C. Bar in
good standing) and a District employee, the candidate must also be actively engaged “as an
a proposed nominee on the ballot both as to qualifications and to procedural formalities. In this
manner, all challenges then formulated can be considered contemporaneously by this court.
Lawrence, supra, 611 A.2d at 531 (footnote omitted).
10
In any event, we note that the arguments as to service of process were withdrawn during oral argument (although
the Challenge was served upon Candidate McDuffie’s counsel, as permitted). Moreover, the absence of a formal
notarization to the signature on the Challenge (which was witnessed by a BOE employee) is non-prejudicial and
waived, especially due to the absence of any question as to its authenticity and the genuineness of the challenge
made.
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attorney,” and since Candidate McDuffie is not, in his capacity as a D.C. Councilmember, engaged
“as an attorney,” he is ineligible to hold the office of Attorney General. There is no dispute that a
D.C. Councilmember need not be an attorney, as indeed, many Councilmembers are not attorneys.
Candidate McDuffie claims that an individual who is an attorney employed by the District
need not also be engaged “as an attorney” in his or her position. He contends that qualification
under Section (a)(5)(D) requires only that an individual have been a member of the D.C. Bar (in
good standing) for the requisite time period, and that they have been employed in the District
during that period of time by either the federal or District government, but not necessarily “as an
attorney.” Candidate McDuffie maintains that as a D.C. Councilmember he utilizes his legal skills
and judgment, applying them to the job at hand, such as his time as Chair of the Committee on the
Judiciary. Candidate McDuffie maintains that this interpretation would likewise allow any District
employee (such as a school teacher) who happens to be an attorney in good standing with the D.C.
Bar to likewise run for the office by virtue of being employed by the District, even if not in a
capacity “as an attorney.”
The Parties do not doubt that District employees who are hired as attorneys and carry the
title of attorneys obviously qualify, such as the many Assistant Attorneys within the Office of
Attorney General, Counsel for Agencies, or Counsel to the Councilmembers. The “fuzzy” area (as
alluded to in oral argument) comes when one steps outside those obvious attorney roles and
examines District employees who are neither hired nor function “as attorneys,” but nevertheless
work in roles where “legal issues” are considered by the District employee.
The Board’s task at hand is to interpret the phrase “as an attorney” in the context of Section
1-301.83 as a whole. A basic principle of statutory interpretation is that “[a] statute should be
construed so that effect is given to all its provisions, so that no part will be inoperative or
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superfluous, void or insignificant[.]” Hibbs v. Winn, 542 U.S. 88, 101 (2004) (internal citations
omitted). When engaging in statutory interpretation,
“[w]e start, as we must, with the language of the statute.” Bailey v. United States,
516U.S. 137, 144, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). “The primary and
general rule of statutory construction is that the intent of the lawmaker is to be
found in the language that he has used.” Peoples Drug Stores, Inc. v. District of
Columbia, 470 A.2d 751, 753 (D.C. 1983) (en banc) (internal quotation marks and
citation omitted). “Moreover, in examining the statutory language, it is axiomatic
that ‘the words of the statute should be construed according to their ordinary sense
and with the meaning commonly attributed to them.’” Id. (quoting Davis v. United
States, 397 A.2d 951, 956 (D.C. 1979) (additional citation omitted)).
Tippett v. Daly, 10 A.3d 1123, 1126-27 (D.C. 2010).
It is also true that
[a] word in a statute may or may not extend to the outer limits of its definitional
possibilities.” Dolan v. United States Postal Service, 546 U.S. 481, 486, 126 S.Ct.
1252, 163 L.Ed.2d 1079 (2006). “The meaning — or ambiguity — of certain words
or phrases may only become evident when placed in context.” FDA v. Brown
Williamson Tobacco Corp., 529 U.S. 120, 132, 120 S.Ct. 1291, 146 L.Ed.2d 121
(2000). Therefore, “we do not read statutory words in isolation; the language of
surrounding and related paragraphs may be instrumental to understanding
them.” District of Columbia v. Beretta, U.S.A., Corp., 872 A.2d 633, 652 (D.C.
2005) (en banc). “We consider not only the bare meaning of the word but also its
placement and purpose in the statutory scheme.” Bailey, 516 U.S. at 145, 116 S.Ct.
501. “Statutory interpretation is a holistic endeavor[.]” Washington Gas Light Co.
v. Public Service Comm'n, 982 A.2d 691, 716 (D.C. 2009) (internal quotation
marks and citations omitted).
Id. at 1127.
In examining the meaning of the language in Section (a)(5)(D), we start by stating what we
believe it does not mean. In light of D.C. Official Code § 1–301.83(a)(5)(A), which establishes
“[a]n attorney in the practice of law in the District of Columbia” as an alternative requirement for
Attorney General, we do not believe that Section (a)(5)(D) requires an attorney who claims
eligibility under that provision to be engaged in the “practice of law” (i.e. an attorney engaged by
a client to perform legal services for consideration). Interpreting Section (a)(5)(D) to require
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attorneys who are government employees to engage in the “practice of law” would render Section
(a)(5)(A) superfluous and deprive it of adequate meaning. That said, Section (a)(5)(D) still requires
an individual who claims to be eligible to serve as Attorney General pursuant to that provision to
be employed “as an attorney” by either the federal or District government. The plain language of
that provision, which requires one to have been, for the requisite time period, “actively engaged
… as … an attorney employed in the District of Columbia by the … District of Columbia[,]”
necessitates this result.
We acknowledge, as does Mr. Spiva, that Candidate McDuffie is an attorney and that he is
employed in the District of Columbia by the District government. However, we find that more is
required to be eligible to serve as the Attorney General under Section (a)(5)(D). We observe that
the phrase “actively engaged” in the context of the statute refers to individuals serving or having
served in specific positions: attorneys, judges, and law professors. We see no basis upon which to
interpret Section 5(A)(D) such that it does not require individuals in this category to have served
or be serving in the position of attorney. That is exactly what the provision states: “as an attorney”
Ultimately, we are persuaded by Mr. Spiva’s argument, articulated in his Reply,
that:
[r]eading the [statute] to cover all D.C. Bar members who are employed by
the District of Columbia government in any role whatsoever renders the
phrase actively engaged … as … an attorney’ superfluous. … While an
attorney in practice, a judge, or a professor of law all must hold law degrees
and apply their legal skills and experience to perform their daily work out
of necessity, the same is not true for all District of Columbia government
employees – unless of course they are employed as attorneys in positions
where active D.C. Bar membership is a prerequisite. The only interpretation
that gives meaning to all of the words of the statute and reads them as a
cohesive whole is to read [Section (a)(5)(D)] as applying only to attorneys
employed as attorneys, in roles where D.C. membership is a prerequisite.
10
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We are also concerned by the implications of venturing outside the box of those District
employees who are hired and act “as attorneys” and considering, on a case-by-case basis,
arguments by those who are not actively engaged “as attorneys” that they are nevertheless the
“functional equivalent” because their job entails reading laws, interpreting laws, and the like. If
the door is opened for a D.C. Councilmember, who clearly need not be an attorney and does not
hold a position “as an attorney,” then why not open the door to all Council staff members who
happen to be attorneys although are not acting as such, or any District agency employee so long
as they happen to be a member of the D.C. Bar in good standing. During oral argument, no counsel
could articulate how to “draw the line” on this slippery slope such that the Section (a)(5)(D)
provision would essentially be reduced to adding one new requirement only (in addition to being
a member of the D.C. Bar): a government employee, regardless of whether or not the person is
“actively engaged…as an attorney.”
The sounder approach, and one that gives effect to the plain language of Section (a)(5)(D)
and the statute as a whole, is to interpret it exactly as it reads: that in addition to being a member
of the D.C. Bar in good standing and employed by the government, the candidate must also be
“actively engaged…as an attorney.” Much as a Councilmember might benefit from being an
attorney (like many government jobs), many Councilmembers are not attorneys, and it cannot be
concluded, at least in this case, that being a Councilmember is enough to take the place of the
express language of the provision that one must be “actively engaged…as an attorney.”
Conclusion
Given our requirement to honor the plain and ordinary wording of the statute, we find that
Candidate McDuffie has not, for the requisite time period, been “actively engaged . . . as . . . [a]n
attorney employed in the District of Columbia by the United States or the District of Columbia.”
11
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For these reasons, he does not meet the qualification requirements to serve as Attorney General.
Accordingly, it is hereby
ORDERED that Motion to Dismiss is denied, and it is further
ORDERED that the Challenge is upheld, and Candidate McDuffie is denied ballot access
as a candidate for the office of Attorney General in the Primary Election.
Dated: April 18, 2022 _________________________________

Gary Thompson
Chair, Board of Elections
12
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DISTRICT OF COLUMBIA
BOARD OF ELECTIONS AND ETHICS
1015 Half Street SE
Suite 750
(202) 717-2525 Phone (202) 347-2648 Fax
BRUCE V. SPIVA,
Complainant,
v. No. 22-_____
Re: Challenge to Candidacy of Kenyan
KENYAN R. MCDUFFIE, McDuffie for Attorney General
Respondent.
RESPONDENT’S MOTION TO DISMISS COMPLAINANT’S CHALLENGE TO

QUALIFICATIONS AS A CANDIDATE
Kenyan R. McDuffie (“Respondent”), candidate for Attorney General, files this motion to
dismiss Bruce V. Spiva’s (“Complainant”) challenge to Respondent’s qualifications as a
candidate for District of Columbia Attorney General, pursuant to D.C. Mun. Regs. tit. 3, §
412.5(e). For the reasons set forth herein, taking all of Complainant’s factual allegations as true,
he has failed to state a claim for which relief can be granted, and the Board of Elections
(“Board”) should dismiss his complaint without the need for a hearing.
INTRODUCTION
In 2010, D.C. voters overwhelmingly ratified an amendment to the District Charter
making the position of District of Columbia Attorney General elected by the people, rather than
appointed by the Mayor. In crafting the new framework for the elected Attorney General, the
Council intentionally sought to ensure a candidate pool to allow attorneys from a broad spectrum
of the D.C. Bar to run. This law and its history are now being invoked in a perverse attempt to
ignore the clear statutory requirements that qualify a native Washingtonian who has, without
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dispute, spent more than a decade as a public servant and attorney, to be a candidate for Attorney
General.
The Board should not indulge any effort to turn back the clock on democracy, a
democracy that has been so long denied to D.C. residents by denying them the opportunity to
elect their Attorney General. Nor can it, as a matter of law. The plain language of the statute,
the legislative history, and the relevant case law make clear that Respondent’s qualifications are
precisely what the Council contemplated when it decided that members of the Bar who have
been actively engaged as an attorney employed in the District of Columbia by the District of
Columbia for five of the past 10 years are qualified to run for Attorney General under D.C. Code
§ 1-301.83(a)(5)(D).
The Council’s objective was not to reserve the position of the District’s chief legal officer
to the most well-connected of the white shoe legal establishment that has happened to locate
here, more often than not to profit from matters before the federal government in which D.C.
residents are denied full representation. The Council’s intent was not to further subject D.C.
residents to governance by hand-picked elites, but to give D.C. voters the opportunity to make a
choice from the diverse array of experiences and backgrounds of District attorneys in the D.C.
Bar.
It is undisputed that Respondent has been engaged as an attorney for five of the last 10
years. It is undisputed that during this time, he has been employed in the District. And it is
undisputed that this employment has been with the District government. Thus, it cannot be
disputed that the Respondent “[h]as been actively engaged” for the requisite time as “[a]n
attorney employed in the District of Columbia by . . . the District of Columbia” as required by
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D.C. Code § 1-301.83(a)(5)(D). Accordingly, Respondent is clearly qualified as a candidate for
Attorney General, and Complainant’s complaint should be dismissed for failing to state a claim.
STANDARD OF REVIEW
D.C. Mun. Regs. tit. 3, § 412.5(e) is nearly identical to D.C. Superior Court Rule
12(b)(6). Pursuant to this rule, dismissal is proper where “taking the material allegations of the
complaint as admitted, and construing them in [complainant’s] favor, the court finds that the
[complainant] ha[s] failed to allege all the material elements of their cause of action.”
Chamberlain v. Am. Honda Fin. Corp., 931 A.2d 1018, 1023 (D.C. 2007). A complainant must
plead “sufficient information to outline the legal elements of a viable claim for relief or to permit
inferences to be drawn from the complaint that indicate that these elements exist.” Id.
ARGUMENT
The Board should dismiss the complaint because it fails to state a claim for which relief
may be granted. Taking all the Complainant’s factual allegations as true, Respondent has been
actively engaged as an attorney employed in the District by the District for the required period,
and, accordingly, is qualified to be candidate for Attorney General under D.C. Code § 1-
301.83(a)(5)(D).
1. Respondent Has Been Actively Engaged As an Attorney Employed in the District by

the District, and Is Therefore Qualified Under D.C. Code § 1-301.83(a)(5)(D).
Complainant’s complaint presents the Board with one, simple question that can be
decided on the parties’ filings without a hearing: Has Respondent, as an attorney member of the
Council of the District of Columbia, been actively engaged as an attorney employed by the
District in the District for five of the past 10 years? The answer is clearly yes, under the plain
language of the statute, as confirmed by the legislative history and case law.
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A. The District’s Minimum Qualifications for Serving as Attorney General
The minimum qualifications and requirements for holding the position of Attorney
General are set forth by D.C. Code § 1-301.83(a). The requirements are that a person must:
• Be a registered qualified elector
• Be a bona fide resident of the District
• Be a member in good standing of the District of Columbia Bar, and have been a member
in good standing of the District of Columbia Bar for at least five years prior to assuming
the office, and
• Have been actively engaged, for at least five of the 10 years immediately preceding years,
as:
o An attorney in the practice of law in the District of Columbia,
o A judge of a court in the District of Columbia,
o A professor of law in a law school in the District of Columbia, or
o An attorney employed in the District of Columbia by the United States or the

District of Columbia.
D.C. Code § 1-301.83(a).
The Council adopted these requirements through the Attorney General for the District of
Columbia Clarification and Elected Term Amendment Act of 2009, A. 18-351, § 103(a), 57 D.C.
Reg. 3012, 3014 (Apr. 9, 2010) (“Act”).1 The purpose of the Act was to “codif[y] the
1
Complainant erroneously states that the qualifications were placed before the voters as a
proposed charter amendment to suggest that it was the voters’ will to deny someone of
Respondent’s qualifications the opportunity to run for Attorney General. Complaint at 9. The
qualifications were enacted through the ordinary legislative process and applied upon completing
congressional review, regardless of the outcome of the charter amendment referendum. Attorney
General for the District of Columbia Clarification and Elected Term Amendment Act of 2009, A.
18-351, § 302, 57 D.C. Reg. 3012, 3018 (Apr. 9, 2010). The only provision of the Act that
was—or could be—placed before the voters for ratification as a charter amendment was Section
202, which proposed to amend the charter to make the attorney general elected. Elected
Attorney General Referendum Emergency Amendment Act of 2011, § 2, 58 D.C. Reg. 3878
(Apr. 27, 2011) (amending the applicability date of the Act’s provision amending the District
4
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institutional independence and make[] modifications to strengthen the position of Attorney
General through the establishment of minimum qualifications and a term of services.”2 The Act
additionally authorized an amendment to the District Charter making the Attorney General
elected, rather than appointed by the Mayor. See D.C. Code § 1-204.35. District voters ratified
that change by 76% in the 2010 general election.
The legislative history does not speak directly to § 1-301.83(a)(5)(D) (“Subparagraph
(D)”), which allows for an individual to qualify for the office by having been actively engaged as
an “attorney employed in the District of Columbia by the United States or the District of
Columbia.” The intent of the qualifications requirements generally, however, as expressed by
the D.C. Council, was to “ensure[] experience, connection and commitment to the District.”
Committee Report at 8. The history suggests that the Council desired to have an appropriately
tailored, but expansive candidate pool to accomplish this.3
The Committee Report includes the hearing record for the Act’s original introduction as
Bill 17-548, the Attorney General of the District of Columbia Clarification Act of 2007 (“2007
Bill”). The “(“2007 Bill”) required the attorney general to be: (1) a member in good standing of
Charter—Section 202—to depend on ratification by the voters pursuant to the charter

amendment process).
2
Committee on Public Safety and the Judiciary, Report on Bill 18-65, “Attorney General for the
District of Columbia Clarification and Elected Term Amendment Act of 2009” at 1–2 (Dec. 16,
2009), https://lims.dccouncil.us/downloads/LIMS/22220/Committee_Report/B18-0065-
CommitteeReport1.pdf (“Committee Report”).
3
Legal experts share this analysis of the legislative history. According to Kathleen Clark, a legal
ethics expert and vice chair of the DC Bar’s Global Legal Practice Committee, “The council
decided to allow more flexibility, a wider range of experience to count as meeting the experience
requirements. It’s true that in the years [Respondent] has served as a council member he’s not
acting as a lawyer on behalf of a client. But he is a lawyer, trained as a lawyer and has some
experience as a lawyer.” Michael Brice-Saddler, Spiva Challenges McDuffie’s Eligibility in D.C.
Attorney General Race, Wash. Post (Mar. 29, 2022), https://www.washingtonpost.com/dc-md-
va/2022/03/29/dc-attorney-general-spiva-mcduffie-challenge/.
5
A55
the District of Columbia Bar for no less than 7 years, (2) be a member in good standing of the
District of Columbia Bar throughout the tenure as Attorney General, and (3) be a resident of the
District of Columbia or become a resident of the District within 180 days after taking office.
Among the witnesses to testify at the hearing on the 2007 Bill were Robert Spagnoletti, who
served as (appointed) Attorney General from 2003 to 2006, and former Councilmember Kathy
Patterson, who chaired the Council’s Judiciary Committee from 2001 to 2004. Mr. Spagnoletti
urged the Council to consider allowing a candidate with seven years of experience—as opposed
to D.C. Bar membership—because many attorneys can work in the District without being a
member of the D.C. Bar, such as federal government attorneys. Committee Report, Spagnoletti
Testimony at 3. Ms. Patterson spoke to the variety of expertise and experience that are needed to
succeed as Attorney General. Committee Report, Patterson Testimony at 2.
The language of Subparagraph (D) was not included in the 2007 Bill, but was included in
the Act as introduced in the subsequent Council period and eventually passed. Thus, consistent
with the testimony of Mr. Spagnoletti and Ms. Patterson, the Council ultimately decided to tailor
the qualifications for serving as Attorney General to broaden the candidate pool to ensure
“experience, connection, and commitment to the District.”
B. Respondent Is Qualified to be a Candidate for Attorney General under Subparagraph

(D).
To determine whether an attorney Councilmember in Respondent’s position is qualified
to be a candidate for the office of Attorney General, accepted rules of statutory construction must
be applied to Subparagraph (D).
“The primary and general rule of statutory construction is that the intent of the lawmaker
is to be found in the language that he has used.” Chamberlain, 931 A.2d at 1023. “A basic
principle [of statutory construction] is that each provision of the statute should be construed so as
A56
to give effect to all of the statute’s provisions, not rendering any provision superfluous.” D.C.
Bd. of Elections & Ethics v. District of Columbia, 866 A.2d 788, 795 (D.C. 2005) (internal
citations omitted). Based on that principle, the addition of Subparagraph (D) to the list of
qualifications must represent, in order to give it meaning and to not subsume it within D.C. Code
§ 1-301.83(a)(5)(A), an expansion of the concept of simply “practicing law.”
More specifically, to give meaning to Subparagraph (D), it must be distinguished from
the alternative requirements of being “actively engaged” as either an attorney in the practice of
law in the District of Columbia, a judge of a court in the District, or a professor of law in a law
school in the District (alternative statutory requirements). D.C. Code § 1-301.83(a)(5). Under
the express language, practicing law, serving as a judge, working as a law professor, or being an
attorney employed in the District by the District are each distinct engagements. If one is actively
engaged in the practice of law, the individual need not be a judge, law professor, or attorney
employed in the District by the District to qualify. Similarly, if one is actively engaged as an
attorney employed in the District by the District, the individual need not also be engaged in the
practice of law, as a judge, or as a law professor. It is true that some attorneys employed in the
District by the United States or the District of Columbia are attorneys “in the practice of law in
the District of Columbia.” Subparagraph (D), however, necessarily encompasses another
category of attorneys who are employed in the District by the United States or the District, but
who are not actively engaged “in the practice of law in the District.”
i. Councilmember McDuffie is Actively Engaged as (1) an Attorney (2) Employed

by the District (3) in the District of Columbia, as Required by Subparagraph (D).
A Councilmember who meets the threshold requirements of being a qualified elector,
resident, and Bar member, and who is an attorney employed in the District of Columbia by the
District of Columbia, is qualified under Subparagraph (D). A Councilmember in Respondent’s
A57
position is necessarily an attorney employed in the District, by the District government. As a
member of the Bar, such a Councilmember may “[h]old out as authorized or competent to
practice of law in the District of Columbia,” including by indicating that he is an “attorney.” See
D.C. Ct. App. R. 49(b)(4). Since Respondent is actively engaged as an attorney (meaning an
active attorney), employed in the District of Columbia, by the District, he meets the requirements
of Subparagraph (D) by its plain language.
In fact, Complainant admits that Respondent is both an attorney and a Councilmember.
Complaint at 14. Since this admission is fatal to the complaint, Complainant goes on to contend
that Respondent is not qualified because “he is not employed ‘as an attorney.’” Complaint at 14.
The statute’s requirement, however, is to be an engaged (i.e., active) attorney “employed in the
District of Columbia by . . . the District of Columbia.” D.C. Code § 1-301.83(a)(5)(D). Whether
the attorney’s position of employment includes the title “attorney” or requires Bar membership is
irrelevant. See Complaint at 15. Under the statute, and for Subparagraph (D) to have meaning,
if the attorney is employed by the District in the District, the attorney is qualified.
Further, Complainant’s reliance on the Judicial Nominating Commission’s commentary
is also not persuasive. See Complaint at 15. As presented by Complainant, this commentary
conflates “serving as an attorney” with being “engaged in the active practice of law.” The
legislature, however, cannot be afforded this level of ambiguity in its use of language. The
statute already provides for active practice being one of four possible ways to be qualified, under
D.C. Code § 1-301.83(a)(5)(A). For Subparagraph (D) to also require active practice would
render it meaningless and superfluous.
A58
ii. In any Case, Respondent is Actively Engaged “As An Attorney.”
However, even if serving “as an attorney” is somehow distinguishable from “being an
attorney” employed by the District in the District, Respondent is “actively engaged as an
attorney” (i.e., acting as an attorney) as required. See D.C. Code § 1-301.83(a)(5)(D). He has
elected to be an active attorney in good standing with the D.C. Bar, which he may without
actively practicing law. As such, he may hold himself out as an attorney and is subject to the
D.C. Bar’s Rules of Professional Conduct at all times. For example, it is professional
misconduct for an attorney to “engage in conduct involving, deceit, or misrepresentation” in
“whatever capacity they are acting,” even when not representing clients. D.C. Bar Ethics Op.
323 (quoting Rule 8.4(c)), https://www.dcbar.org/For-Lawyers/Legal-Ethics/Ethics-Opinions-
210-Present/Ethics-Opinion-323. Given his standing professional obligations as a member of the
Bar, he, as an attorney, cannot work as a Councilmember without also being actively engaged as
an attorney and upholding the standards for attorney ethical conduct.
Furthermore, Respondent is actively engaged with the legal profession as a member of
multiple voluntary bar associations, including the Washington Bar Association and the National
Bar Association. Through these memberships, he has participated in legal conferences, panels,
and other events, as well as received awards. These include being named by the National Bar
Association as “Top 40 Trailblazers Under 40” and receiving the association’s Trailblazer Award
at the Young Lawyers Division conference in 2016. In these respects, Respondent is clearly
actively engaged as, and in acting as, an attorney.
Additionally, although working as a Councilmember does not require one to be an
attorney, Respondent applies his knowledge and skills as an attorney in doing so. In this
capacity, he has authored numerous laws and exercised oversight over multiple District agencies
A59
to evaluate their compliance with legal obligations, and supervised the attorneys employed on his
staff. As a Councilmember, Respondent routinely investigated the real-world impact of District
laws on residents, assessed legal barriers to better outcomes for the public, and crafted laws
designed fundamentally to advance the greater good. These include the Racial Equity Achieves
Results Amendment Act, juvenile justice reform, the police body-worn camera program, the
Neighborhood Engagement Achieves Results Act, and public financing of elections. Respondent
has dedicated his career as an attorney and public servant to use the law to “uphold[] the public
interest.” D.C. Code § 1-301.81(a)(1). This is, by law, the core obligation of the Attorney
General.
Complainant’s narrow definition of what it means to be an attorney, for purposes of D.C.
Code § 1-301.83(a)(5)(D), would disqualify attorneys who have dedicated their careers to public
service from candidacy simply due to their job title or for not actively practicing law. This is not
at all what the Council intended. Just as the Council decided that judges and law professors who
did not have active legal practices were qualified, so too are individuals who are actively
engaged as non-practicing attorneys employed in the District by the District.
iii. A Candidate Need Not Also Be Actively Engaged in the Practice Law to
Qualify Under Subparagraph (D).
Under the Attorney General qualifications statute, a Councilmember does not also need
to be in the “practice of law in the District” to run for Attorney General because, as discussed
above, so long as he or she is an attorney, he or she is qualified under Subparagraph (D). S (D)
is just one of several alternative means to qualifying for Attorney General, in addition to “active
practice.”
To this point, although the D.C. Court of Appeals has not construed the provision
establishing qualifications for the office, in a decision by the Montana Supreme Court is
10
A60
instructive. See Cross v. VanDyke, 332 P.3d 215 (Mont. 2014). The issue there was whether a
person who was in inactive status with the state Bar was qualified to run for the office of justice
of the state supreme court. Id. at 215–216. Under the state constitution, the officeholder must be
“admitted to the practice of law” in the state for at least five years prior to the election. Id. at
217. In reaching its conclusion that the candidate was qualified, the court distinguished the
“admitted to the practice law” requirement from the additional requirement for candidates for
attorney general, which included that the candidate must “engaged in the active practice” of law.
Id. at 219. Thus, the Montana court recognized a clear distinction between an “active practice”
requirement, and other types of requirements.
District law provides for such alternative qualification requirements. Being “actively
engaged . . . [a]s an attorney in the practice of law in the District of Columbia” is one way to
qualify to run for Attorney General, but it is not the exclusive way to be so qualified. An
attorney who is not actively engaged in the practice of law can be qualified by being employed in
the District by the U.S. or District government, such as serving as a member of the Council of
the District of Columbia, or as a judge or law professor in the District.
Complainant focuses nearly exclusively on the “active practice” provision in an attempt
to disqualify Respondent. He cites a Maryland Court of Appeals case holding that Maryland’s
constitutional requirement to have “practiced Law in this State for at least ten years” barred the
candidacy of an attorney who had actively practiced outside the state. Complaint at 8 (citing
Abrams v. Lamone, 919 A.2d 1223 (Md. 2007)). Yet this case only highlights the distinct nature
of the District’s requirements. There is no need for the District law to “be interpreted more
liberally” to determine that Respondent is qualified because District already includes multiple
ways to be qualified. See Complaint at 8. While the District may not be unique in requiring
11
A61
qualifications beyond Bar membership, the Board should, of course, consider only those
qualifications that are actually set forth in the District’s statute. Unlike under the Maryland
Constitution, active practice is but one of several ways to qualify under District law. The
Council deliberately chose to have multiple ways to qualify so as to ensure a broader
representation of the Bar could come before the voters and take on the wide-ranging
responsibilities of the office.
2. The Board Should Not Hold a Hearing Because There are No Material Facts at
Issue.
If the Board were to hold a hearing in this case, it would take evidence, evaluate the
evidence, and issue a decision. See D.C. Mun. Regs. tit. 3, § 407; see also D.C. Code § 2-509.
In this case, however, there is no material fact in dispute. The issue before the Board is purely
legal: Whether Respondent, as an attorney and Councilmember, is actively engaged as an
attorney employed in the District by the District is qualified to be a candidate for Attorney
General under D.C. Code § 1-301.83(a)(5)(D). Holding a hearing to take evidence would serve
no purpose in the absence of any dispute over material facts. It also would not benefit the Board
or the public, given approaching deadlines to finalize the ballot for the June 21, 2022 election.
Upon the parties fully briefing the complaint, the Board will have the information necessary to
decide this purely legal case without a hearing.
CONCLUSION
There is no material fact in dispute in this case. The parties agree that Respondent is an
attorney, and is employed in the District by the District. The Board need not look further than
the statute and the parties’ filings to conclude that Respondent is therefore qualified to be on the
ballot as a candidate for Attorney General under D.C. Code § 1-301.83(a)(5)(D). Complainant
devotes the bulk of the complaint to discussing how Respondent is not engaged “in the practice
12
A62
of law” and not “employed as an attorney.” Yet Complainant never acknowledges that
practicing law is one of several ways to be qualified, as was the Council’s intent. One could
alternatively be a judge, or a law professor, or, like Respondent, actively engaged as an attorney
employed in the District by the District. The actual requirement at issue here is to be an attorney
“employed in the District of Columbia by . . . the District of Columbia”—which precisely
describes Respondent.
For the foregoing reasons, Respondent respectfully requests that the Board dismiss
Complainant’s complaint for failure to state a claim for which relief may be granted and allow
the voters to make their choice as to who will be the Attorney General for the District of
Columbia.
Respectfully submitted,
GOLDBLATT MARTIN POZEN LLP
By: /s/ Thorn Pozen

Thorn L. Pozen (D.C. Bar: 463061)
Kevin M. Hilgers (D.C. Bar: 1022820)
(202) 795-9999 (phone)
(202) 795-9192 (facsimile)
khilgers@gmpllp.com
tpozen@gmpllp.com
Counsel for Respondent
Dated: April 6, 2022
13
A63
April 6
I hereby certify that on ___________________, 2022 a copy of the foregoing document
was filed with the Board of Elections via email as follows:
D.C. BOARD OF ELECTIONS

Christine Pembroke
1015 Half Street, S.E.
(202) 727-2525
cpembroke@dcboe.org
and served on the following via email:
WILEY REIN, LLP

Theodore A. Howard
2050 M Street, N.W.
(202) 719-7120
thoward@wiley.law
Counsel for Complainant
/s/ Kevin Hilgers

_______________________________
Kevin M. Hilgers (D.C. Bar: 1022820)
14
A64
DISTRJCT OF COLUMBIA BOARD OF ELECTIONS
IOI5 Half Street, SE. Suite 750
Bruce Spiva,
Complainant. No. 22- -----
V. Re: Challenge to Candidacy of Kenyan

McDuffie for Attorney General
Kenyan McDuffie.
Respondent.
REPLY & OPPOSITION TO RESPONDENT'S MOTION TO DISMISS
Respondent Kenyan McDuffie's Motion to Dismiss clarifies the issues before this Board
in resolving whether Mr. McDuffie meets the qualifications to serve as Attorney General of the
District of Columbia. Mr. McDuffie does not attempt to argue he has been actively engaged as
an attorney in the practice of law in the District of Columbia for five of the past ten years. Resp.
Mot. at 2-3. 1 0-12. As he concedes. Mr. McDuffie can only meet the statutory qualifications to
serve as Attorney General if this Board determines he is actively engaged. . .as. . .an attorney
employed in the District of Columbia by. . .the District of Columbia." DC Code & I-
301.83(a)(5)(D). But he is not. While Mr. McDuffie is a dedicated public servant. he is not
employed as an attorney in his role as Ward 5 Councilmember. For this reason. he does not meet
the minimum qualifications established by the Council and approved by the voters to serve as
Attorney General of the District of Columbia.
A65
1. To Be_Actiyel Engaged as an_Attorney Employed by The District of Columbia,
the Position_Must Require a La Degree and Bar Membership.
As Mr. McDuffie notes. a cardinal rule of statutory construction is that statutes should be
read to give meaning to all of their words and phrases. The plain language of section I-
301.83(a)(5)D) requires that a can didate for Attorney General relying on subsection D's
eligibility criterion. as is Mr. McDuffie. be employed as an attorney" by the District of
Columbia to qualify. Mr. McDuffie reads this language as applying to any attorney who happens
to be employed by the District of Columbia. Resp. Mot. at 8. However. many attorneys with
law degrees and bar membership go on to a variety of careers. including in the public sector.
D.C. Public Schools teachers. dual-degree M.B.A. recipients working on economic issues. and
countless other District employees are attorneys with active bar memberships who have decided
to take a break from the practice of law or use their skills in other ways. While all of these
individuals are dedicated public servants. they are not employed "as an attorney" by the District
of Columbia government. The Council may have intended to sweep broadly in considering who
might qualify to serve as Attorney General and previously in crafting who might qualify to
serve as judge, with an identical practice requirement but that breadth is not infinite.
This interpretation of section 1-30 1.83(a)5)D) does not render the provision
superfluous. There are many District of Columbia government employees who are employed as
attorneys. but nonetheless are not or at least arguably are not practicing law. For example.
hearing examiners and administrative judges at the D.C. Office of Employee Appeals and many
other agencies are required to be admitted to the D.C. Bar. and thus employed as attorneys. but
their roles are quasi-judicial and do not involve representing specific District of Columbia
agencies or other clients. See. eg. D.C. Code $ 1-606.01(m). One might therefore argue that
these attorneys are not actively engaged. . .as. ..an attorney in the practice of law." as
2
A66
contemplated by section 1-301.83(a)(5)A). The Council. however. wanted to ensure that these
types of District of Columbia government employees would be eligible to serve as Attorney
General. just as they appropriately qualify to serve as District of Columbia judges. Section I-
301.83(a)(5)(d) accomplishes that objective.
District of Columbia law recognizes this distinction between attorney and non-attorney
government employees in other ways. Executive Branch employees who are required to be
licensed attorneys as a prerequisite for their positions must submit a certificate of good standing
from the D.C. Bar every year to maintain their employment. D.C. Code $ 1-608.81. As the
Council recognized in crafting this requirement. it is not only attorneys. but also hearing officers
and administrative law judges, who are required to be licensed members of the D.C. Bar to hold
their positions in the District of Columbia government. Id. $ 1-608.81(a). A similar requirement
applies to individuals employed by the D.C. Council as attorneys. i.e.. "each attorney who is
required to be a member of the District of Columbia Bar as a prerequisite of employment. and
who is employed by the Council." Id. $ 1-608.82(a). While a range of District government
employees are required to be licensed attorneys as a prerequisite for their positions. members of
the D.C. Council. like Mr. McDuffie. are not. Rather. like schoolteachers. economists. or others
in non-attorney government positions. Councilmembers may benefit from having a law degree
or indeed any other degree or life experience but that does mean they are "actively engaged. .
. as....an attorney .. in their work for the District of Columbia governrnent.1
'Some Councilmembers have maintained an active law practice while serving on the Council.
including former Councilmember .Jack Evans. Councilmember Mary Cheh maintains active
outside employment as a professor at a District of Columbia law school. Mr. McDuffie.
however, does not claim to have represented clients. practiced law, or served in any other
qualifying capacity. The fact that Mr. McDuffie has participated in voluntary bar associations
and received awards from these groups. as he notes in his response. does not change the analysis.
Resp. Mot. at 9.
3
A67
2. It_Is_Mr. McDuffie's _Interpretation That Would Render Parts of the Statute
Superfluous.
Contrary to Mr. McDuffie's arguments. it is Mr. Spiva's interpretation ofthe statute that
read[s] its text as a whole." giving meaning to all of its words and reading them in harmony. not
Mr. McDuffie's. Zukerherg v. D.C Bd. of Elections. 97 A.3d 1064. 1075 (D.C, 2014). The
statute already requires all candidates for Attorney General to be members of the D.C. Bar. If
the Council had wanted to ensure that any District of Columbia government employee who also
is an active member of the D.C. Bar would be eligible to serve as Attorney General. there simply
would have been no reason to include the phrase actively engaged. . .as. . .an attorney" in
subsection 0:
(a) No person shall hold the position of Attorney General for the District of
(3)ls a member in good standing of the bar of the District of Columbia.
(5)Has been actively engaged. for at least 5 of the IO 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) (emphasis added). Instead. the Council could have modified the
longstanding requirement for judicial service. for example, as follows:
A68
(a) No person shall hold the position of Attorney General for the District or
(3)Isa member in good standing of the bar of the District of Columbia:
(5) (A)Has 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:
(B2) A judge of a court in the District of Columbia: or
(C3)A professor of law in a law school in the District of

Columbia: or
(BB) Has been An attorney employed in the District of Columbia

by the United States or the District of Columbia.
D.C Code $ 1-301.83(a) (emphasis., deletions. and additions added). But that is not the statute
the Council enacted. Reading the current statute to cover all D.C. Bar members who are
employed by the District of Columbia government in any role whatsoever renders the phrase
actively engaged. . .as. . .an attorney superfluous. Moreover. it makes subsection D the final
category in a list of four items constructed in parallel very different in application. contrary to
the principle of ejusdem generis. See. e.g.. Sydnor v. United States. 129 A.3d 909. 912 (D.C.
2016) ("When using this principle (a Latin term meaning of the same kind or class'). this court
interprets general words or phrases that follow a specific list to include only items of the same
type as those listed."). While an attorney in practice. a judge, or a professor of law all must hold
law degrees and apply their legal skills and experience to perform their daily work out of
necessity. the same is not true for all District of Columbia government employees unless. of
course, they are employed as attorneys in positions where active D.C. Bar membership is a
5
A69
prerequisite. The only interpretation that gives meaning to all of the words of the statute and
reads them as a cohesive whole is to read subsection D as applying only to attorneys employed
as attorneys, in roles where D.C. Bar membership is a prerequisite.
Mr. McDuffie also fails in his attempt to fit within the statutory language which he
plainly does not by arguing that he is an "active attorney" and "acting as an attorney" by virtue
of the fact that he has maintained his membership in the D.C. Bar. and thus can hold himself out
as an attorney. Resp. Mot. at 9. But the ability to hold oneself out as an attorney is very
different from being actively engaged as an attorney. And the statute recognizes this. The
statute already requires all candidates to be current members of the D.C. Bar and to have been
members in good standing for the past five years: the phrase "actively engaged as an attorney"
must therefore mean something more.
Mr. McDuffie goes on to argue that because he is an active D.C. Bar member. he
necessarily must be actively engaged as an attorney and uphold his ethical obligations as an
attorney in all that he does an argument that presumably would apply. in his view. regardless of
the nature of his work. That is not the law. For example. a public school teacher who also
happens to be a non-practicing attorney is a mandatory reporter who must disclose information
shared in confidence by a student if it concerns child abuse or similar allegations. and that
teacher cannot avoid this obligation to report by arguing that as a DC. Bar member. he is bound
to protect the student's confidentiality and afford the student attorney-client privilege. See D.C.
Code $ 4-1321.02 (listing mandatory reporters. including teachers). Attorneys are governed by
the Rules of Professional Conduct when they are employed and acting as attorneys. By the same
token. attorneys who are members of the D.C. Council or members of Congress do not have to
maintain active D.C. Bar membership to perform their jobs in the District of Columbia. They are
6
A70
not employed or acting as attorneys. and their failure to maintain active Bar membership does
not render them vulnerable to claims of unauthorized practice of law or otherwise violate the
Rules of Professional Conduct.
Under the plain language of the statute. Mr. McDuffie is not legally qualified to serve as
the Attorney General of the District of Columbia. This is no mere technicality. The Council put
the minimal qualifications into the statute for good reason. The D.C. Attorney General is the
chief legal officer of a government with an approximately $19.5 billion budget, and the leader of
an office with approximately 700 professionals and a $150 million budget. which has I major
divisions covering legal issues that span from consumer protection. juvenile justice, and civil
rights issues to child support and antitrust enforcement. The Council carefully crafted minimum
qualifications that would ensure candidates for Attorney General would have sufficient
preparation to lead an office of such scope. breadth and critical importance to the lives of the
people of the District ofColumbia. Mr. McDuffie who has not been engaged in the practice of
law or been employed as an attorney for any of the past ten years does not meet these
minimum qualifications and does not have the experience required to run for Attorney General.
CONCLUSION
For the foregoing reasons as well as those set forth in the initial Challenge to a
Nominating Petition. Respondent's Motion to Dismiss should be denied and Complainant's
Challenge should be sustained.
Date: April 11. 2022
Respectfully submitted.
7
A71
s Theodore A. Howard
Theodore A. Howard (D.C. Bar No. 366984)
Wiley Rein LLP
2050 M St.. NW
Washington. D.C. 20036
(202) 719-7120
tho ward@wilev.law
Counsel for Complainant Bruce I Spiva
8
A72
I hereby certify that on April 11 2022. I served this Reply electronically by email on:
D.C. Board of Elections
Christine Pembroke. Senior Staff Attorney

1015 Half Street. SE
(202) 727-2525
cpembroke@dcboe.org
Counsel for Respondent Kenyan _McDuffie
Thorn L. Pozen & Kevin M. Hilgers

Goldblatt Martin Pozen. LLP
1432 K Street. NW. Suite 400
khilgers@gmpllp.com
tpozen@gmpllp.com
s Theodore A. Howard
Theodore A. Howard
9
A73

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No.

In the District of Columbia Court of Appeals

DISTRICT OF COLUMBIA BOARD OF ELECTIONS,

On Application for Expedited Review of an Order of the

APPLICATION FOR EXPEDITED REVIEW

Thorn L. Pozen Baruch Weiss

Attorneys for Applicant Kenyan McDuffie

Pursuant to this Court’s Rule 28(a)(2), the following is a list of parties,

Challenger Challenged Candidate

Challenger’s Counsel Challenged Candidate’s Counsel

Agency Respondent Joe Sandler

Bates v. D.C. Bd. of Elections & Ethics,

Best v. D.C. Bd. of Elections & Ethics,

Carter v. Commission on Qualifications of Judicial Appointments,

D.C. Bd. of Elections & Ethics v. District of Columbia,

District of Columbia v. Towers,

Epic Sys. Corp. v. Lewis,

Gollin v. D.C. Bd. of Elections & Ethics,

Harvey v. D.C. Bd. of Elections & Ethics,

Kamins v. Bd. of Elections for D.C.,

Kungys v. United States,

*Lawrence v. D.C. Bd. of Elections & Ethics,

Municipality of Anchorage v. Mjos,

Nat’l Mining Ass’n v. Kempthorne,

Nebraska Republican Party v. Shively,

Williams-Godfrey v. D.C. Bd. of Elections & Ethics,

Zukerberg v. D.C. pBd. of Elections & Ethics,

D.C. Court of Appeals Rule 49 ............................................................................. 29

D.C. Rules of Professional Conduct

D.C. Bill 18-65, § 102(a)(3)(B) (introduced Jan. 6, 2009) ............................. 11, 25

Committee on Public Safety and the Judiciary,

63C Am. Jur. 2d § 53 (Feb. 2022) ......................................................................... 20

Antonin Scalia & Bryan A. Garner,

Black’s Law Dictionary (11th ed. 2019) ................................................... 22, 24, 29

Classes of Membership, D.C. Bar .......................................................................... 8

Committee on the Judiciary and Public Safety,

Council of the Dist. of Columbia, Legislative Drafting Manual (2019).......... 24

D.C. Bar Ethics Opinion No. 323 (2004).............................................................. 23

D.C. Bar Ethics Opinion No. 336 (2006).............................................................. 23

Legal Drafting: Legislation, Am. Univ. Wash. Coll. of L. ................................ 24

Legislative Drafting Research Fund, Colum. L. Sch. ...................................... 24

Legislative Policy & Drafting Clinic, Bost. Univ. Sch. of L. ........................... 24

Merriam-Webster Online Dictionary .................................................................. 22

Thomas M. Cooley, A Treatise on the Constitutional

Applicant Kenyan McDuffie files this application under D.C. Code § 1-

1001.08(o) seeking expedited review of a final order of the Board of Elections,

application “[w]ithin 3 days after announcement of the determination of the

is timely. D.C. Code § 1-1001.08(o)(2).

Section 1-1001.08(o)(2) provides that, upon the timely filing of an

application, this Court “shall expedite consideration of the matter.” Expedited

consideration is necessary here because this matter must be resolved in time

for ballots to be printed for the upcoming June primary election.

Elections has insisted that Councilmember McDuffie will not be included on

because it must provide final ballot information to a printer on or before

resolution of this case by April 28.

decision and, if necessary, of the upcoming primary election in order to prevent

irreparable harm to Mr. McDuffie and to the District’s voters. A stay is

of elections if election on original schedule “is not practically possible”).