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SACRAMENTO � Legal scholars are expressing doubts about a lawsuit that claims Democratic candidate Jerry Brown is ineligible to hold the office of attorney general. Republicans from five counties sued Brown and five elections officials Thursday, asking a judge to block the counting of any votes cast for the current Oakland mayor in the Nov. 7 general election. The complaint hinges upon a one-sentence Government Code statute that says an attorney general candidate must be “admitted to practice” before the state Supreme Court “for a period of at least five years immediately preceding his election.” The Republicans say that disqualifies Brown because his State Bar status was voluntarily inactive between Jan. 1, 1997 and May 1, 2003, making him “active” � and, according to the plaintiffs’ argument, entitled to practice � in just 3-1/2 of the preceding five years. “We are very confident that the courts will look at this and say this is not a minor matter,” said plaintiff Thomas Del Beccaro, a Walnut Creek attorney who is also chairman of the Contra Costa Republican Party. McGeorge School of Law professor John Sims disagreed. “My interpretation of that” qualification statute “would be, ‘admit to practice’ means you have to be a member of the Bar,” he said. “But if you’re an inactive member, you’re still admitted to practice.” The suit comes with the general election less than three weeks away and Republican AG candidate Chuck Poochigian trailing Brown by double digits in recent published polls. Del Beccaro said the plaintiffs would have filed the lawsuit sooner but needed time to research the complaint. Rick Hasen, a Loyola Law School professor and noted election law blogger, said a court may frown upon the plaintiffs filing the suit so close to the election. “Any court that looks at this issue is going to have to consider whether the lateness of the claim is reason enough to reject it, given the hardship the Democrats would face in not being able to field another candidate,” Hasen said. In a prepared statement, Poochigian said the lawsuit raises “a serious question” about Brown’s “fidelity to the law.” “Jerry Brown has been on inactive status as an attorney 10 of the past 14 years,” Poochigian added. “He will have the opportunity to explain why he believes Californians should ignore the basic qualifications of the office he seeks.” The plaintiffs’ attorney, Republican stalwart Charles Bell Jr. of Bell, McAndrews & Hiltachk in Sacramento, declined to say who was financing the suit. But Brown campaign consultant Ace Smith pointed an accusatory finger at Poochigian on Thursday. “Mr. Poochigian either has no understanding of the law or he’s willing to subvert the judicial process for political purposes,” Smith said. “Either way he’s unfit to hold the office.” The Brown camp circulated its own informal legal opinion, solicited from Oakland attorney R. Zachary Wasserman of Wendel, Rosen, Black & Dean. Wasserman called the lawsuit “baseless.” “Jerry Brown has been eligible to practice law in California under the laws of the state of California and the rules of the State Bar since 1965,” Wasserman wrote. “Anyone reading the statutes would understand this.” The complaint, filed in Sacramento County Superior Court, cites two cases from the 1930s involving the eligibility of judicial candidates. In one of the cases, the candidate was involuntarily suspended from the Bar for six months, cutting into his five-years-of-service requirement. The plaintiffs argue that it doesn’t matter that Brown’s inactive status was voluntary. Based on the cited cases, “Brown must have been ‘actually entitled to practice in the state courts’ without interruption during the five consecutive years immediately prior to the June 6, 2006 primary election in order to be a qualified candidate for California Attorney General in that election,” the complaint contends. “He was not.” But Lance Olson, an election law expert and senior partner at Olson, Hagel & Fishburn in Sacramento, said a judge is unlikely to deem the former governor, secretary of state and current mayor “ineligible” to be attorney general. “I think that if the statute can reasonably be interpreted to apply to the former governor’s circumstances, then I think a court is not going to find him ineligible,” said Olson, a long-time counsel to state Democrats. “This is obviously a qualified candidate.” A court also would likely strike down the statute’s five-year practice requirement as unconstitutional under the Equal Protection clause, Olson said. Attorney General Bill Lockyer’s office released a 1980 opinion from then-AG George Deukmejian that seems to oppose the Republicans’ current legal argument. While holding that an attorney could not be elected judge because subtracting a two-year Bar suspension gave him less than the required 10 years of membership, the opinion concluded that “a member of the State Bar” is substantially the same as someone “admitted to practice law.” And, the opinion said, “inactive members are members of the State Bar.” Del Beccaro said the 1980 opinion is not applicable to the current case because it doesn’t directly address the issue of eligibility. The plaintiffs have asked for a speedy hearing of their case but no court date had been set by Thursday afternoon.

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