Lawsuit Alleges Calif. Attorney General Not Eligible to Hold Office

May 13, 2019 Updated: May 13, 2019

Democratic California Attorney General Xavier Becerra, a leading legal antagonist of President Donald Trump, isn’t legally eligible to serve as his state’s top law enforcement officer, according to a lawsuit working its way through the state’s courts.

After 24 years in the U.S. House of Representatives, Becerra was appointed California attorney general on Jan. 24, 2017, replacing Democrat Kamala Harris, who was elected to the U.S. Senate. He won election to the position in his own right on Nov. 6, 2018.

Eric Early, a Los Angeles lawyer who sought the Republican nomination in 2018 in the attorney general race, argues in his lawsuit that Becerra is ineligible for the post because he wasn’t practicing law for close to five years prior to his appointment or election to the office. Early lost his case in the initial phase and filed an appeal last week.

“The state’s top legal officer should have at least a modicum of experience as a practicing lawyer,” Early told The Epoch Times in an interview.

Political

“Instead, we have one who has no clue what it’s like to be a practicing lawyer,” he said. “We have ended up with a pure, wall-to-wall politician as our state top legal officer, so it has not been a surprise that since he became attorney general, his agenda has been entirely political.”

“We might as well have Nancy Pelosi in our attorney general’s office,” Early said, adding that Becerra “has turned into a vessel for the resistance.” The “resistance” is often used to describe the Democratic opposition to President Donald Trump.

As of February, the California attorney general’s office had filed a record 46 lawsuits against the Trump administration, according to a tally by The Hill newspaper. This is reportedly more than any other state attorney general during the current administration or any other presidency in the nation’s history. Republican attorneys general across the nation sued the previous administration a total of 46 times during Barack Obama’s entire presidency.

Becerra has repeatedly angered conservatives and supporters of the rule of law.

Eric Early. (Courtesy Eric Early)

In January 2018, a few days after three state laws took effect that turned California into a so-called sanctuary state, Becerra threatened to prosecute employers if they assisted U.S. Immigration and Customs Enforcement (ICE) officials in their efforts to uphold federal immigration laws.

California Assemblyman Travis Allen responded by saying Trump and then-Attorney General Jeff Sessions should “come to California [and] literally arrest [and] indict Xavier Becerra for breaking federal law.”

“The [state] attorney general is literally, criminally trying to obstruct justice,” said Allen, a Republican. He “has crossed the line.”

On April 18, a three-judge panel of the often-reversed 9th Circuit Court of Appeals upheld almost all parts of the three laws that interfere with ICE enforcement in California, which is home to more than 2 million illegal aliens. The Trump administration seems certain to appeal the ruling.

Eligibility

Early’s campaign filed an emergency petition with the Superior Court for the County of Sacramento on May 29, 2018, seeking to have Becerra barred from the general election ballot. The petition was denied two months later by Judge Richard Sueyoshi.

On May 6, Early’s lawyers filed an opening brief seeking to appeal the ruling to the Court of Appeal of the State of California, Third Appellate District.

Legal arguments center around Section 12503 of California’s Government Code, which 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.”

According to Early’s brief, a copy of which was provided to The Epoch Times, Becerra “was an inactive member of the California State Bar and unable to practice law for 26 years between January of 1991 and January of 2017.” Becerra only regained “active” status with the State Bar and the ability to practice law when he was appointed attorney general in January 2017. That means Becerra lacked the requisite five years of legal experience when he was appointed, elected, and sworn in after the election, the brief states.

“There is no doubt that the Legislature could amend Government Code 12503 to include voluntarily inactive lawyers, but they have not,” according to the brief.

Neither Becerra’s office nor his attorneys listed in court documents responded to requests by The Epoch Times for comment for this article.

Earlier in the proceeding, Becerra’s lawyers stated their client met the “eligibility requirement many times over” after the court “admitted him to practice on June 14, 1985, and his admission has never been revoked or suspended.”

Although there “are no published California authorities on the question of an inactive member’s eligibility for the Office of Attorney General,” Early’s brief states, there is case law on the issue from outside the state.

In a case called Abrams v. Lamone, the Maryland Supreme Court removed Democratic National Committee Chairman Thomas E. Perez from the Maryland ballot when he ran for attorney general in that state in 2006, because he lacked 10 years of experience practicing law in Maryland.

Perez didn’t become a member of the Maryland bar until 2001. That state’s constitution requires candidates to have “resided and practiced Law in this State for at least ten years.” Perez’s years of federal practice prior to 2006 were deemed insufficient to meet the 10-year requirement, according to Early’s brief.

Early told The Epoch Times his case is an “uphill battle,” but said it’s “a correct battle.”

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