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Last week the voters in two states chose new attorneys general who are not, in some minds, “qualified” to hold that office. Another candidate for attorney general was kicked out of the race before the primary election on the same ground. Were voters crazy to elect Douglas Gansler in Maryland and Jerry Brown in California? Was it wise for the courts in Maryland to prevent voters from considering Tom Perez? And does the imposition of professional qualifications for political office undermine our biannual exercise in competitive democracy? Tom Perez, a member of the Montgomery County Council, thought he was qualified to be attorney general of Maryland. He had graduated from Harvard Law School, clerked for a federal judge in Colorado, and passed the bar in New York. He then landed a job with the U.S. Department of Justice, handling cases for the Civil Rights Division in Maryland and elsewhere. For the past 17 years, he has lived and voted in Maryland. What is more, he had an advisory opinion from the outgoing Maryland state attorney general saying he was qualified. But Perez’s qualifications were challenged in a lawsuit. Less than three weeks before the Democratic primary in September, the Maryland Court of Appeals, the state’s highest tribunal, declared him ineligible. The court ruled that Perez did not meet the state’s constitutional requirement that the attorney general shall “have practiced law in this State for at least ten years.” The court has yet to issue an opinion, so its reasoning is unknown. But a good guess is that the court reads the constitution to require the attorney general to have been a member of the Maryland Bar for 10 years. Perez was not admitted until 2001. Similar challenges were brought against Gansler and Brown before the general election. All three cases involved straightforward questions of legal interpretation with limited applicability. Yet courts ducked these questions in two of the three cases and have not yet issued an opinion in the third. Perhaps the courts have been circumspect because, beneath the surface, much more fundamental issues lurk. How far should state constitutions and statutes go in limiting the people that voters can choose for elective office? And why does the organized bar seem to benefit so often from such restrictions? THEY’RE ON THE BALLOT Gansler, the state’s attorney for Montgomery County, won the Democratic nomination for attorney general that Perez had wanted. Five days before the general election, a challenge to Gansler’s qualifications was argued before and decided by the same Maryland Court of Appeals that had knocked Perez out of the race. Gansler’s case was ostensibly stronger. A graduate of the University of Virginia School of Law, he was admitted to practice in Maryland 17 years before he ran for attorney general. But, according to press reports, the plaintiff argued that because Gansler had spent nine of those years working for two D.C. law firms and the U.S. Attorney’s Office in Washington, D.C., he had not actually practiced law long enough in Maryland. The trial court rejected that argument, ruling that Gansler’s 17 years as a member of the state bar, combined with his experience in private and public practice, fulfilled the constitutional requirement. To complicate matters, the Court of Appeals vacated the trial court decision on Nov. 2. It ruled that the lawsuit against Gansler on the eve of the general election was barred by laches — an interesting conclusion in light of the fact that the same court had disqualified Perez on the eve of the primary election. In any event, the court’s ruling leaves wide open the questions of when and how this issue should be adjudicated. Is the date of the primary the cutoff for challenges, and, if so, why? Does the governor have any responsibility to enforce the constitutional rule by preventing elected officials from taking office? In Maryland, nobody knows. Meanwhile in California, former Gov. Jerry Brown’s qualifications in his bid for attorney general also were being challenged. By California state statute, the attorney general must be “admitted to practice before the Supreme Court of the state for a period of at least five years immediately preceding his election.” Brown graduated from Yale Law School in 1964 and was admitted in California a year later. But he ran afoul of this provision, it was argued, because he elected inactive status with the California Bar from 1997 to 2003. The trial court deferred a ruling on the merits until after the election. Legal experts opine that Brown will prevail because the state statute requires only that the attorney general be admitted to practice, not that he actually be eligible to practice. THE MEANING OF �PRACTICE’ It may not be surprising that the courts in Maryland and California have so obviously struggled to interpret (or avoid interpreting) the relevant language. In other states, the drafters of qualifications managed to express their intent with greater clarity. For example, the Georgia state constitution provides: “No person shall be Attorney General unless such person shall have been an active-status member of the State Bar of Georgia for seven years.” On the other hand, the fact that such simple language is available suggests that the drafters of Maryland’s requirement, at least, intended something different from bar membership. Indeed, if the Maryland Court of Appeals wondered whether the constitutional requirement that the attorney general “practice” in the state for 10 years was intended to include the requirement that he be admitted to the state bar for 10 years, it only needed to look at the constitutional qualifications for state judges: “[They] shall be selected from those who have been admitted to practice law in this State, and who are most distinguished for integrity, wisdom and sound legal knowledge.” The writers of the Maryland constitution knew the difference between practicing law and being admitted to practice. Moreover, the court’s own Rules of Professional Conduct make the very distinction that seemed to confuse it in the Perez case. Rule 5.5 expressly contemplates that a lawyer who is not admitted in Maryland may nevertheless practice law there. Subparagraph (d) provides: “A lawyer admitted in another United States jurisdiction . . . may provide legal services in this jurisdiction that . . . are services that the lawyer is authorized to provide by federal law or other law of this jurisdiction.” In other words, Tom Perez’s handling of civil rights cases in Maryland for the Justice Department constituted the practice of law in Maryland under the court’s own rules. IN WHOSE BEST INTEREST? But above and beyond interpretive questions, these cases throw the legal profession into an unflattering spotlight. Democracy and competition be damned, the organized bar shows again its penchant for writing protectionism into the law every chance it gets. Note that there generally are no professional qualifications established for other state offices. For example, Maryland doesn’t require that the comptroller be a certified public accountant. More importantly, compare the requirements in California, Georgia, and Maryland with those of the federal government. The U.S. attorney general need not be a lawyer; neither the justices of the Supreme Court nor the judges of the lower federal courts must have earned a law school degree. What is more, the long tradition of picking justices and attorneys general from among the ranks of political figures, such as senators, belies any notion that these individuals should have practiced law for a fixed period of time prior to their elevation to the highest offices. In short, the interest served by an individual state requiring its attorney general to be selected from among lawyers who have practiced for prolonged periods of time in that state is difficult to discern. The candidates challenged as unqualified in these three cases seem eminently qualified: Besides graduating from three of the best law schools, all three have been involved in the writing and/or enforcing of laws for many years. Democracy presumes that citizens are competent to choose their leaders. If there are qualification requirements, they should do more good than harm. The specific policies endorsed by Brown, Gansler, or Perez may not be the choice of every voter, but the citizens of California and Maryland surely do not need to be protected from having that choice. And judges should not be asked to deny voters the right of decision. Instead of furthering democracy, these requirements seem part and parcel of the organized bar’s longtime pattern of writing laws to protect lawyers from competition. Recall when the American Bar Association in 2002 adopted a “ Model Definition of the Practice of Law.” Both the Justice Department and Federal Trade Commission opposed it as unjustified and anticompetitive. They wrote that the proposed definition “is overbroad and could restrain competition between lawyers and nonlawyers.” They also argued that neither the definition nor an accompanying statement “provides a clear articulation of the harms the Definition seeks to address.” The truth of the matter is that constitutions and laws imposing these qualifications are undemocratic and protectionist. A handful of judges should not decide whether Tom Perez is qualified to be attorney general. The nature of Doug Gansler’s law practice years ago should not be more important than his current understanding of legal issues in Maryland. And Jerry Brown’s trivial decision to elect inactive status should not prevent voters from returning him to statewide office. In an age when law firms have offices scattered around the world and when lawyers from Europe, Africa, the Middle East, and Asia routinely fly to the United States to close business deals, advise clients, and appear in court with local counsel, states should not continue to demand that their attorneys general be parochial in career and outlook. Lawyers should not put the interests of the local bar above the interests of the people. And voters should be free to decide for themselves which candidates are qualified to hold office.
D.C. lawyer James H. Johnston is a frequent contributor to Legal Times .

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