Becerra’s Lawyer Says Eligibility Challenge Is ‘Far-Fetched’

August 10, 2018

Metropolitan News-Enterprise

MetroNews reports on a filing with the California Supreme Court by Downey Brand attorney Jay-Allen Eisen. Eisen is defending Attorney General Xavier Becerra against an effort by his opponent Eric Early to deny Attorney General Becerra’s eligibility for election on Nov. 6th and compel the Secretary of State to remove his name from the ballot.

See full article below or view it online at Metropolitan News-Enterprise.

By a Staff Writer for Metropolitan News-Enterprise

A lawyer for state Attorney General Xavier Becerra told the state Supreme Court in a filing yesterday that the challenge to their client’s eligibility for election on Nov. 6 to the post he now holds amounts to an effort to invalidate the results of the primary election through a judicial rewriting of a statute.

The lawyer, Jay-Allen Eisen of the Sacramento firm of Downey Brand LLP, representing Becerra and his campaign committee, termed the challenge “farfetched.”

Los Angeles attorney Eric Early asked the state high court on Tuesday to grant review of the Third District Court of Appeal’s denial of his writ petition seeking to block Becerra’s name from appearing on the ballot. He contends that Becerra is statutorily ineligible for the post because he was not on active State Bar status for five years preceding the election.

Becerra—who was appointed by Gov. Jerry Brown as attorney general to fill the vacancy created when Kamala Harris resigned from that post to take the seat in the U.S. Senate to which she was elected in 2016—took office Jan. 24, 2017. He was admitted to practice in 1985, but was on inactive status from Jan. 1, 1991 to Jan. 1, 2017.

The Supreme Court, acting on an expedited basis, with the printing of ballots to start on Monday, requested informal opposition from Becerra by yesterday afternoon, and a reply by Early by noon today.

Becerra’s Opposition

Eisen wrote:

“Government Code section 12503 provides in plain, unambiguous language that, to be eligible for the office of Attorney General, a person ‘shall have been admitted to practice before the Supreme Court of the state for a period of at least five years immediately preceding his or her election or appointment to such office.’ It states no other qualification for the office. Becerra meets that eligibility requirement many times over. The Court admitted him to practice 33 years ago, on June 14, 1985, and his admission has never been revoked or suspended….

“Nevertheless, petitioners contend that section 12503 requires more than admission to practice. They assert that the statute also requires that candidates for Attorney General have been in the active practice of law for at least five years before election to office. The statute provides no such requirement. A court may not rewrite a statute to insert what the Legislature has omitted.”

Unconstitutional Results

Eisen asserted that Early’s interpretation would lead to the constitutionally infirm results of thwarting the voters’ desires expressed in the primary—in which Becerra received nearly 46 percent of the votes in a four-person race, with Early being last—and would trammel Becerra’s right to seek and hold office.

He pointed out:

“Were the Court to accept petitioners’ theory and declare Becerra ineligible to be Attorney General, the Court would not only overturn the results of a statewide election, it would nullify his current appointment as Attorney General. The result would be chaos. It would throw into question every action of the Attorney General—indeed, of the entire Department of Justice—over more than a year and a half since Becerra took office.”

No Distinction Drawn

The lawyer went on to note that the Legislature did not draw a distinction between active and inactive membership in the State Bar in drafting §12503. Where it has wanted to require active membership, he said, it has done so explicitly, pointing to statutes setting requirements for holding the offices of public defender or an attorney member of the Department of Consumer Affairs’ Dispute Resolution Advisory Council.

Eisen cited, as the Court of Appeal did in summarily denying Early’s writ petition, the 1940 Court of Appeal decision in Chambers v. Terry. There, a statute relating to Municipal Court judges, identical to §12503 except for one difference in capitalization, was interpreted as not requiring active membership. Although Eisen signed the brief, Becerra is also represented in the case by Stephen J. Kaufman and Gary Scott Winuk of the Los Angeles firm of Smith Kaufman.

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