A few days ago, FR Political Law Correspondent Jim Lacy penned his thoughts on a lawsuit filed to try and prevent Jerry Brown from assuming the office of Attorney General. Lacy was critical of the suit. One of the plaintiffs in that suit, Contra Costa County GOP Chairman Tom Del Beccaro, penned the following rebuttal… (Oh, and I am sure we will see a ‘rebuttal of the rebuttal’ from Jim!)
The Rule of Law Still Matters . . .
Brown cannot be “actually entitled to practice” at the same time he is not “entitled to practice law.”
By Thomas G. Del Beccaro, Plaintiff in Del Beccaro v. Brown
The Secretary of State has certified our last election. Therefore, we the Plaintiffs, in the lawsuit Del Beccaro et. al. v. Brown et. al., have amended our complaint to include a post-election challenge.
We did so because we are a nation of laws not of men and because we believe that the Rule of Law still matters.
The post election challenge is authorized under Election Code Section § 16100(b). The legislature enacted § 16100(b) to specifically address election eligibility issues. That section expressly provides for an election contest if a “person who has been declared elected to an office was not, at the time of the election, eligible to that office.”
Recently on this Weblog,, in an utterly remarkable column, Republican lawyer James Lacy opined that “I think this lawsuit has taken politics too far, but it is going to be a loser in any event.” He also wrote that “Applying the rule of "common sense," it is abundantly clear that Brown is qualified to be California’s Attorney General.” Jerry Brown could not have stated it much better.
Just like Mr. Brown, and despite 479 words in his opinion, Mr. Lacy failed to reference a single legal case or statute to support his theory that Brown is “qualified.” That may well be because there is no law or case that supports either his opinion or Jerry Brown’s opinion.
The Brown case can be distilled to a simple 3 step analysis as to why he is ineligible:
Step 1. The Meaning of “Admitted to Practice.”
Mr. Lacy and Mr. Brown correctly note that California Government Code section 12503 determines eligibility for prospective Attorneys General. It states:
“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.”
Our Supreme Court looked at that ‘admitted to practice ‘ language once in our history and gave us a 2 part test as to its requirements. The Supreme Court stated:
"It is self-evident, we think, that said provision requires as a fundamental qualification . . . that the candidate for such position [Part 1] be qualified as an attorney [Part 2] actually entitled to practice in the state courts" for the 5 years immediately preceding the election.
(click here for an explanation of Johnson v. State Bar of California (1937) 10 Cal.2d 212, 216).).
Step 2. Brown’s License was “Inactive” 2 out of the last 5 years.
Jerry Brown’s law license was inactive for 2 out of the last five years. Brown voluntarily chose not to keep his license active and does not deny that he was inactive.
Step 3. Brown not Entitled to Practice Law.
The California Supreme Court has said “An inactive member of the State Bar, of course, is not entitled to practice law." Conway v. State Bar of California (1989) 47 Cal.3d 1101, 1111.
The Inescapable Conclusion: Jerry Brown meets part #1 [qualified as an attorney] but was inactive 2 out of the last 5 years and therefore does not meet part #2. Obviously, Brown cannot be “actually entitled to practice” in the state courts at the same time he is “not entitled to practice law.”
In sum, Jerry Brown is not qualified.
That much is plain enough.
Nevertheless, Mr. Lacy and Mr. Brown assert that “common sense” dictates that Brown is qualified because he has done this and that over the years.
Such logic is inimical to the Rule of Law. "Close enough" or "in the neighborhood" are not applicable legal standards. Imagine if they were when it comes to qualifications – in effect – there would be no real qualifications because any one could claim close enough. Try that, by the way, the next time you get a ticket or seek a license to be a contractor or a doctor or anything else. You either qualify or you don’t. That is why they are called "requirements" not "suggestions."
Even more troubling than Mr. Lacy’s arbitrary "common sense" standard is Mr. Lacy’s notion that Brown won a popular victory and therefore will or should be immune from a challenge. The whole point of the Rule of Law is to provide blind justice, to grant equality of opportunity among people before the law, rich and poor, popular and unpopular – not to insulate the fortunate or the popular.
In other words, the magnitude of Brown’s victory makes his transgression no less an abuse of privilege. Indeed, it means that we should be all the more vigilant to stand up to the rich and powerful . . . to let them know the Rule of Law still matters.
For more on the Brown suit, please visit here.
Please join us in that most important endeavor and thank you to the many people who have supported our efforts.
If you would like to help, please send your private donation to:
The Rule of Law Defense Fund
c/o James F. McClaskey, CPA
800 So. Broadway, Ste 310
Walnut Creek, Ca 94596