Should the powerful be allowed to ignore or change the laws they don’t agree with? Of course not. But that issue is at the heart of a lawsuit filed in May by former Attorney General candidate Eric Early against the unelected, appointed California Attorney General Xavier Becerra, who is running to keep his office. The case was heard Friday morning in Sacramento Superior Court.

When Becerra filed his election paperwork with the California Secretary of State, he represented that he was qualified for the position of Attorney General. However, according to Early, Becerra had been unlicensed by the California State Bar Association for 26 years when Gov. Jerry Brown appointed him, and continues to be unqualified for the elected position based on California Election Code.

Attorney General Xavier Becerra’s legal team however, admonished the judge in court Friday that the case is really about removing a candidate from the ballot “despite the language of the statute” at issue.

Imagine that your California drivers license is suspended. Do you drive a car illegally anyway? Or you are a CPA and have not completed your continuing education, and your license is suspended. Do you prepare tax returns and sign as a licensed CPA? No, because that is illegal.

The Lawsuit

Attorney Eric Early’s Petition for Writ of Mandate seeks to remove Xavier Becerra’s name from the ballot in California’s upcoming General Election because Becerra was not an admitted, licensed attorney in the State of California for five uninterrupted years prior to being appointed by California Governor Jerry Brown. This is a problem because California General Election Code 12503 says, “No person shall be eligible to the office of Attorney General unless he shall 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 such office.” And that’s all the code section says. As of the November 6, 2018 general election, Becerra will have only been reactivated as a practicing attorney for a period of one year, ten months and five days, according to Early.

The lawsuit states that Becerra “does not and cannot meet the minimum eligibility requirements for the position of Attorney General.”

Xavier Becerra, a sitting member of Congress since 1993, was an “inactive” member of the California Bar for 26 years when Gov. Jerry Brown appointed him as California Attorney General. Becerra was surprisingly appointed to the California AG’s office in January 2017 when then-California Attorney General Kamala Harris was elected to the U.S. Senate.

Superior Court Judge Richard K. Sueyoshi, who tentatively dismissed the lawsuit Thursday prior to the Friday hearing, appeared to twist himself into a pretzel trying to read more into the statute. Judge Sueyoshi conflated “active status” in the California State Bar Association with “membership in the Bar,” which have two very different meanings; “inactive status” means the law license is suspended, voluntarily or involuntarily.

The Judge’s tentative ruling Thursday said state law “does not prohibit from serving as Attorney General a person who has voluntarily been placed on ‘inactive’ status with the State Bar at any point during the five-year period immediately preceding his or her election or appointment to the office.” This is what he was trying to “read into” the state statute.

In court Friday, Judge Sueyoshi talked of the “intent” of the statute. Plaintiff’s Attorney Brentford Ferreira argued that the statute is clear when it says, “admitted to the Supreme Court, ” and “admitted and licensed to practice law.”

“Inactive with the State Bar Association means ‘suspended,” Ferreira said. Attorney Ferreira is correct. The words in the statute are unambiguously clear when they say: 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 such office.

While Judge Sueyoshi said, “the facts in the case were undisputed as to Mr. Becerra’s status with the State Bar,” he added, “the facts of this case do not determine the meaning of the statute.” Sueyoshi challenged Early’s attorneys to a hypothetical situation where a Deputy Attorney General of 25 years retires, and concurrent with his retirement, goes inactive with the State Bar. “He’s retired for 3-4 days, then gets a call for the Attorney General position, and gets back on ‘active’ status.”

“The statute says ‘uninterrupted five years status,” Attorney Ferreira said, explaining that this hypothetical Deputy AG would also be ineligible. “The purpose for that isn’t as pedantic as your hypothetical. The purpose is actual familiarity with the state of law in California. The purpose is ‘admitted to practice.’”

“Mr. Becerra was not licensed to practice law for 26 years,” Ferreira added. But Judge Sueyoshi continued his challenge, conflating “active status” in the California Bar Association with generic “membership” in the Bar Association. “The point being… the intent behind the interpretation containing station with status in the Bar,” Judge Sueyoshi said.

“The question is about someone who is qualified for the job but doesn’t qualify under the statute,” Judge Sueyoshi added.

Balderdash. The statute is clear and applies even to the politically powerful. As Early’s attorney’s said, many lawyers decide to leave the daily practice of law, moving to some other type of business, and “suspend” their law licenses with the state bar. They may retain membership in the Bar Association, but are not licensed to practice.

“He could not walk into a courtroom and ‘practice law,’” attorney Ferreira said. “We all know what ‘practice’ means.”

Jerry Brown’s Been Down This Road Before

Also at issue is the fact that California Gov. Jerry Brown knew Xavier Becerra was not eligible to be Attorney General when he appointed him. Jerry Brown faced a nearly identical lawsuit in 2006 when then-Contra Costa County Republican Party Chairman Tom Del Beccaro and Adam C. Abrahms of the Los Angeles chapter of the California Republican Lawyers Association, Yolo County GOP Chair Mark A. Pruner, David B. Prince and Carl A. Burton, filed suit in Sacramento Superior Court claiming that under Government Code Sec. 12503, because Brown was an inactive member of the State Bar until 2003, and only held his law license actively for four years prior to running for Attorney General, he did not not meet the requirements to be attorney general. (Del Beccaro v. Brown, Sacramento Superior Court Case No. 06AS04494) However, the Superior Court dismissed the case and the plaintiffs were unable to appeal the case because of cost.

Becerra also knew he was ineligible to be Attorney General – especially since he immediately reactivated his law license when Brown appointed him. Why would he reactivate his status with the California Bar Association if it didn’t matter? Additionally, many members of the California Legislature openly challenged Becerra’s eligibility to hold the office of Attorney General upon Brown’s announcement of the appointment.

At the end of the hearing, and after reading the judge’s tentative ruling dismissing the case against Becerra, it appears the case will be formally dismissed. With both sides promising to appeal, Judge Sueyoshi has likely framed his ruling well for the Court of Appeals, clearly outlining the various arguments, as specious as they may be.

Becerra’s legal team is right about one thing: It wasn’t up to Judge Sueyoshi to interpret the statute language. Nor was the judge going to make the decision to remove a candidate from the ballot. That is appeals court level legal wrangling.

However, as a learned friend remarked to me, this case could have profound impact on the Attorney General race because it documents the corruption of current California Attorney General Xavier Becerra, as well as former CA AG Jerry Brown, who obviously knows the requirements for the appointment of an Attorney General.