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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 six-month federal sentence in Virginia and Pennsylvania until April of this year.

At the outset, we are mindful of 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. See Williams-Godfrey v. District of Columbia Bd. of Elections & Ethics, supra note 4, 570 A.2d at 739 n.4 ("Though any individual's personal right to candidacy is not itself a fundamental right, see Bullock v. Carter, 405 U.S. 134, 92 S. Ct. 849, 31 L.Ed.2d 92 (1972), a critical ingredient of the electorate's ability to vote effectively is choice among the candidates with demonstrated support") (quoting Consumer Party v. Davis, 633 F. Supp. 877, 885 n.8 (E.D. Pa. 1986)). As we have said in interpreting another provision of the election laws, "in attempting to discern intent . . . this court is mindful 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." Gollin v. District of Columbia Bd. of Elections & Ethics, 359 A.2d 590, 595 (D.C. 1976). Further, "the fundamental nature of the right involved [to vote] persuades us that construction of the statute in favor of the franchise is the course that we must follow since there is no compelling reason to do otherwise." Kamins v. Board of Elections for the District of Columbia, 324 A.2d 187, 192 (D.C. 1974). *fn6 These considerations suggest that qualifications for candidacy be interpreted in an inclusive spirit.

Many years ago, we established that, in a general sense, a "residence must be a fixed and permanent abode or dwelling place for the time being and not a mere 'temporary locality of existence.' It does not have to be permanent in the strict sense of the word since permanency of abode cannot be known without the gift of prophecy; but it must be more than a place of mere sojourning or transient visiting." D'Elia & Marks Co. v. Lyon, 31 A.2d 647, 648 (D.C. Mun. App. 1943) (quoting Barney v. Oelrichs, 138 U.S. 529, 533, 34 L. Ed. 1037 , 11 S. Ct. 414 (1891)). *fn7 Inherent in the concept are the expectation and likelihood of absences, perhaps of some duration, from this "fixed and permanent abode," and the relevance of intent and voluntariness. Thus, "it is generally accepted that a person entering into one of the military services retains his domicile or residence in the state from which he entered the service unless there is evidence of intent on his part to effect a change therein." Rudd v. Rudd, 278 A.2d 120, 121 (D.C. 1971).

Given the usefulness of these general concepts, still it is recognized that "'residence' is not a term of fixed legal definition but takes on shades of meaning according to the context in which it is found." District of Columbia v. H.J.B., 359 A.2d 285, 290 D.C. 1976). Therefore we, as did the Board, take special note of the action of the Council in 1982 to provide a definition of residence in the election laws, and in particular, D.C. Code § 1-1302(16)(E) (1987), which provides in pertinent part:

No person shall be deemed to have gained or lost a residence by reason of absence while employed in the service of the District or the United States governments, while a student at any institution of learning, while kept at any institution at public expense, or while absent from the District with the intent to have the District remain his or her residence.

Petitioner argues that this definition is not relevant to the matter before us since, he claims, it relates to residence for voting purposes and cannot be deemed to affect the requirement in § 1-225. *fn8 Even if this is so in strict legal terms, as to which we express no opinion, *fn9 we think it provides a helpful and relevant gloss within which to interpret the requirement of § 1-225. *fn10

We perceive no ground to set aside the Board's decision, on the record before it, that Mr. Barry's candidacy was not precluded by § 1-225. It is not challenged that over the years, Mr. Barry's contacts with the District have been both long and deep, including three terms as the Mayor. There is no evidence in the record to show that during his involuntary physical absence from the District, he expressed any intent not to return to the District, and he did indeed return to the District upon his release from prison. Likewise, there is no evidence that he changed his voter registration or failed to pay District taxes. *fn11 In sum, we are satisfied that within the legal principles set forth above, the Board's decision of July 21, 1992, denying petitioner's challenge must be, and is hereby,


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