47 Cal.App.5th 325
Cal. Ct. App.2020Background:
- Xavier Becerra was admitted to the California State Bar on June 14, 1985; he voluntarily changed to inactive status on January 1, 1991 and returned to active status January 1, 2017 after being appointed Attorney General.
- Government Code § 12503 requires a person to have been “admitted to practice before the Supreme Court of the state for a period of at least five years immediately preceding his election or appointment” to be eligible for Attorney General.
- Eric Early filed a writ petition in May 2018 seeking to remove Becerra from the 2018 ballot, arguing that Becerra’s long period of inactive status meant he was not “admitted to practice” for the requisite five years.
- Trial court denied the petition, concluding the statute’s plain language did not require active practice; Early appealed and sought emergency relief, which was denied by the Court of Appeal and the California Supreme Court refused review.
- The Court of Appeal affirmed, holding that voluntary inactive status does not negate prior admission to practice and that § 12503’s “admitted to practice” language does not incorporate an active-practice requirement.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "admitted to practice" in Gov. Code § 12503 requires active/actual practice in the five years before election/appointment | "Admitted to practice" should mean actual ability/active practice; inactive members cannot practice and thus do not count | Phrase refers to admission and status as a member of the bar, not engagement in active practice; statute contains no "active" qualifier | Court: Phrase means admission/status as an attorney; no active-practice requirement imposed |
| Whether voluntary inactive status disqualifies accrual of the five-year period | Voluntary inactive status (prohibiting practice) should not count toward five years of experience | Voluntary inactive members remain admitted members of the bar and may count toward eligibility | Court: Voluntary inactive members remain "admitted" and time can count; suspension differs from voluntary inactivity |
| Whether the 1989 amendment to Bus. & Prof. Code § 6006 implies Legislature intended inactive time not to count for § 12503 | Legislature’s explicit amendment for judicial eligibility shows it declined to extend similar protection to AG eligibility | 1989 amendment clarified existing law re: voluntary inactivity and judicial eligibility rather than creating a new rule; no inference against § 12503 | Court: No negative inference; amendment clarified prior uncertainty for judges, not evidence Legislature meant to exclude inactive time from § 12503 |
| Significance of analogous authorities (judicial cases and out-of-state decisions) | Cases and opinions interpreting judicial eligibility and some out-of-state AG cases support requiring active practice | California authorities (Chambers, AG letters) and Cross (Mont.) support counting voluntary inactive time; out-of-state cases involved explicit active-practice language | Court: Analogous authorities favor reading § 12503 as not requiring active practice; out-of-state cases with explicit active-language are distinguishable |
Key Cases Cited
- Johnson v. State Bar of California, 10 Cal.2d 212 (Cal. 1937) (discusses ineligibility when attorney was under suspension during the requisite eligibility period)
- Chambers v. Terry, 40 Cal.App.2d 153 (Cal. Ct. App. 1940) (invalidates statutory requirement of "active" practice that exceeds constitutional "admitted to practice" language)
- Cross v. VanDyke, 332 P.3d 215 (Mont. 2014) (voluntary inactive bar membership did not defeat eligibility where constitution lacked an active-practice requirement)
- Abrams v. Lamone, 919 A.2d 1223 (Md. 2007) (Maryland Constitution required actual residence and practice, so active-practice reasoning distinguishable)
- Bysiewicz v. DiNardo, 6 A.3d 726 (Conn. 2010) (Connecticut statute explicitly required active practice and was interpreted to require substantial litigation experience)