GOP vs. Jerry Brown: What the Law Says

The lawsuit filed against Oakland Mayor Jerry Brown, now the Democratic candidate for attorney general, contends the former governor is ineligible for the top legal job because he maintained an inactive status with the California Bar for several years.

To the Republican Party and Brown's opponent, state Sen. Chuck Poochigian, this is not some minor paperwork error, but a violation of the law. Here is what Government Code Section 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."

Brown became an "active" member of the Bar in May 2003 - therefore, the GOP contends, he was not a real lawyer admitted to practice before the Supreme Court for at least five years. But to Brown's campaign, the operative word in the law is "admitted." They say that Brown was admitted to the Bar in 1965 - and never de-admitted, so to speak. He was simply inactive. Legal scholars tended to support Brown in news stories printed today. From the San Diego Union-Tribune:

"Erwin Chemerinsky, a Duke University law professor who spent 21 years at the University of Southern California, said the most important factor is that Brown passed the bar and was admitted to practice. "I don't think his being on 'inactive status' should matter," Chemerinsky wrote in an e-mail. "He could easily have changed that just by paying his dues."

Stephen R. Barnett, an emeritus law professor at UC Berkeley's Boalt Hall, told Eric Bailey of the LAT: "This dog won't hunt."

But the GOP points to a state Supreme Court decision from 1937 interpreting nearly identical language as Gov. Code 12503 concerning the qualifications of state judges. That decision, from Johnson vs. State Bar of California, says:

"Certainly an attorney who has been suspended from practice of law during this period cannot successfully claim to be eligible. It is self-evident, we think, that said provision requires as a fundamental qualification for the office of superior judge, that the candidate for such position be qualified as an attorney actually entitled to practice in the state courts."

So was Brown "actually entitled" to practice in the state courts for the past five years? He wasn't "suspended" from the Bar. An inactive member cannot appear before a court. The Brown campaign, however, uncovered a footnote in a 1980 legal opinion by former Atty. Gen. George Deukmejian, who wrote, "inactive members are members of the Bar."

You be the judge.

UPDATE: Rick Hasen -- Loyola Law School professor and election law expert -- emails and blogs to say reporters are "missing an important point about the suit: timing. The right time to sue would have been before Brown was put on the ballot. This suit likely comes too late. (In legal terminology the suit is likely barred by 'laches'). This doctrine is meant to prevent parties from having an 'option' in election law. If Brown does well, sue. If he is doing poorly, don't raise the legal issue. For this reason, I think a court would likely say this comes too late."

Photos: Ben Margot / AP; Rich Pedroncelli / AP)