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July 28, 1992


On Petitions for Review of a Decision of the District of Columbia Board of Elections and Ethics.

Before Steadman, Farrell and Wagner, Associate Judges.

The opinion of the court was delivered by: Steadman

STEADMAN, Associate Judge: Before us for expedited review is a decision of the Board of Elections and Ethics that Marion Barry, Jr., a prospective candidate for a seat on the Council of the District of Columbia from Ward 8, is not disqualified by the one-year residency provision of the District of Columbia Self-Government and Governmental Reorganization Act, codified at D.C. Code § 1-225 (1987). Petitioner has filed two separate petitions with us in connection with this matter. We must dismiss the first petition for want of jurisdiction. The second petition, taken from the decision of the Board rejecting petitioner's challenge following the filing of the nominating petition, is properly before us. We affirm the Board's decision rejecting the challenge.


We deal first with the dismissed petition, because in doing so we explicate the basis for our jurisdiction to hear the second petition. On June 10, 1992, petitioner requested an opinion of the Board whether Mr. Barry, who in April 1992 completed a six-month federal sentence served in prison facilities in Virginia and Pennsylvania, met the requirement that he "has resided and been domiciled in the District for 1 year immediately preceding" the day of election. D.C. Code § 1-225 (1987). The General Counsel of the Board rendered a "preliminary assessment" that Mr. Barry was qualified. Petitioner thereupon sought an "immediate official opinion" from the Board. The Board held a hearing on June 30, 1992, and on July 1, 1992, issued an order denying petitioner's challenge to Mr. Barry's qualifications on the residency ground. Petitioner then filed a petition for review with this court, on which we heard oral argument on July 20, 1992.

We have been cited to no provision of law that expressly grants this court jurisdiction to hear a direct appeal from this action of the Board, and we know of none. *fn1 Under D.C. Code § 11-722 (1989), our general jurisdiction to directly review administrative orders and decisions is confined to that authorized by the District of Columbia Administrative Procedure Act. D.C. Code §§ 1-1501 to 1-1510 (1987). Under that act, we may entertain petitions from a decision in a "contested case." § 1-1510 (a). "Contested cases" are defined in § 1-1502(8) as a proceeding in which legal rights, duties, or privileges are "required by any law . . . or by constitutional right, to be determined after a hearing" before the agency. See Communication Workers of America, Local 2336 v. District of Columbia Taxicab Comm'n, 542 A.2d 1221, 1222-23 (D.C. 1988). No law or constitutional right gave petitioner any right to a hearing before the Board on his request for an opinion.

It is also suggested that jurisdiction may lie under § 1-1306 (g). That subsection provides that notwithstanding any contrary requirement of the Administrative Procedure Act, the Board may hear any case by 1-member panels, and that an appeal from a decision of any such 1-member panel may be taken to either the full Board or to the District of Columbia Court of Appeals. We read this subsection as a procedural one simply to authorize the use of 1-member panels where otherwise the full Board would have to sit, and not to expand the substantive jurisdiction of this court over direct agency appeals. The subsection by its terms applies only to any "case" brought before the Board. This reading is further confirmed by a perusal of the entire section and its provisions for appeals from a 1-member panel to the full Board. The final sentence provides: "A final decision of the full Board, relating to an appeal brought to it from a 1 member panel, shall be appealable to the District of Columbia Court of Appeals in the same manner and to the same extent as all other final decisions of the Board." Id. (emphasis supplied).

A grant of a direct appeal to this court at the preliminary point when the first petition was filed here would distort the statutory and regulatory process, as well as encourage piece-meal and possibly moot appeals. When petitioner sought the opinion from the Board and the Board acted, nominating petitions for Mr. Barry were still in circulation. None had yet been filed. *fn2 Under the Board's regulations, it is at the time of the filing of a nominating petition that a "Declaration of Candidacy and Affidavit of Qualifications" must also be filed, at the latest. 3 DCMR § 602.1 (1990). Within three working days after the deadline for filing nominating petitions, the Executive Director of the Board or his designee makes a preliminary determination of eligibility. Id. § 602.4. *fn3 Also on the third day the nominating petition must be posted for a ten-day period. Within that period, any registered qualified voter may challenge the validity of any petition. The Board receives evidence in support of and in opposition to the challenge and determines its validity. Within three days after the announcement of the Board's decision, either the challenger or the nominee may apply to this court for an expedited review. D.C. Code § 1-1312 (o) (1987). By only then providing for direct appellate review of challenges to a candidate, this statutory and regulatory scheme sensibly precludes judicial review of challenges brought at a point at which it may still be uncertain whether the prospective candidate successfully will complete the formal steps toward becoming a candidate or what the full range of current challenges may be.

Thus, we read broadly the provision of § 1-1312 (o) allowing challenges to "the validity" of any petition as establishing a mechanism for review of challenges to the placing of 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. *fn4 Because the first petition sought review prior to this point and apart from § 1312 (o), we lack jurisdiction to consider it, and it is hereby dismissed.


We turn now to the substantive challenge to Mr. Barry's residency qualification. Following oral argument before this court on July 20, 1992, petitioner timely filed the requisite written challenge to Mr. Barry's nominating petition, which had been posted ten days previously, pursuant to D.C. Code § 1-1312 (o) (1987). The following day, July 21, 1992, the Board held a hearing, at which it accepted petitioner's motion to incorporate by reference the record of the June 30, 1992 hearing. The Board denied the challenge and incorporated by reference its order of July 1, 1992. Petitioner promptly again sought our review. *fn5

The District of Columbia Self-Government and Governmental Reorganization Act, the basic document establishing the present structure of the District of Columbia government, contains a number of provisions concerning qualifications for holding office. The provision relevant to the dispute before us is section 402, codified at D.C. Code § 1-225, which in relevant part provides:

No person shall hold the office of member of the Council . . . unless he (a) is a qualified elector, (b) is domiciled in the District and if he is nominated for election from a particular ward, resides in the ward from which he is nominated, and (c) has resided and been domiciled in the District for one year immediately preceding the day on which the general or special election for such office is to be held . . . .

Petitioner concedes that Mr. Barry meets the domicile requirement but argues that he fails to meet the requirement that he "has resided" in the District for the one-year period immediately preceding the election date because of his absence from the District by reason of his serving a ...

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