JURIST Guest Columnist Charles Kels of the US Air Force Judge Advocate General’s Corps argues that courts should tread lightly in evaluating professional eligibility for elective office...
The job of state attorney general (AG) resides at the intersection of electoral politics and legal proficiency. As the chief legal officer of their respective state, commonwealth, or territory, AGs are popularly elected in 43 states, the District of Columbia, Guam, and the Northern Mariana Islands, and appointed by either the governor, legislature, or judiciary in the remaining US jurisdictions.
Mounting a statewide campaign for elective office is by no means an easy (or inexpensive) feat. It is not terribly surprising, therefore, that the ranks of AG contenders include a mix of ambitious politicians, experienced legal practitioners, and those who somehow manage to be both. If there is any truth to the old joke that the National Association of Attorneys General (NAAG) is really a misnomer for the National Association of Aspiring Governors, it may be a sign that the position is eyed as a political steppingstone as much as a mark of legal distinction.
Yet AG remains one of the few positions for which state constitutions and statutes often prescribe minimum qualifications beyond age and residency. Specifically, 27 states require active bar membership, and 11 of those mandate a minimum period of legal experience. The only equivalent at the federal level is the presidentially-appointed Solicitor General, who must by statute be “learned in the law.” If a Solicitor General nominee’s eligibility were challenged, it would presumably fall to the Senate’s advice-and-consent function to settle the question. When political candidates’ eligibility is contested, however, the dispute often ends up in court.
A Tale of 2 States: Legal Practice without Bar Admission?
The Maryland Constitution provides that the AG must have “practiced Law in this State for at least ten years.” In 2006, Tom Perez — who would later go on to serve as Secretary of Labor in the Obama administration and currently as Chair of the Democratic National Committee — launched a bid for the state’s Democratic nomination for AG. At the time, Perez was on faculty at the University of Maryland School of Law and had been barred in the state for 5 years. As a New York-licensed attorney, he had previously worked in the federal sector for over a decade, including stints as a judicial clerk, Department of Justice (DOJ) prosecutor and manager, Senate liaison, and Department of Health and Human Services political appointee.
Perez’s workplace was primarily at agency headquarters and the Capitol in Washington, DC. Federal hiring standards for attorney positions typically specify that employees must be licensed in “at least one” US state or territory, but not necessarily in the location where their government duties take them. Under the US Constitution’s Supremacy Clause, state licensing requirements may not directly interfere with federal operations.
Perez’s AG candidacy was challenged by a local Republican politician and ultimately blocked by the state’s highest court. The Maryland Court of Appeals ruled that Perez was ineligible to run for AG because his federal practice as a New York-licensed attorney did not count as the practice of law in Maryland. The Court acknowledged that the federal supremacy doctrine, applicable statute, and federal appellate court rules enable DOJ attorneys to represent US interests in any state irrespective of licensure, but declined to view this limited authorization as “tantamount to practicing law” in Maryland on a regular basis. The plurality opinion differentiated between maintaining an exclusively federal practice with an out-of-state bar license and practicing law in the state with the “carte blanche authorization” of Maryland bar membership.
Thus, the Court interpreted the Maryland Constitution as requiring the AG to be both a member of the state bar and an “active practitioner” in the state for 10 years. Given that Perez had been admitted to practice in Maryland for only 5 years, he could have satisfied no more than half of the decade-long practice requirement for AG.
The indisputable fact that Perez lacked the requisite period of Maryland bar membership allowed the judges to astutely sidestep the thorniest issue at play: namely, “what activity does or does not constitute practicing law?” Indeed, the plurality opinion in Perez’s case professed not to be concerned with the content of his legal practice, only its licensure and location. The Court specifically noted that “lawyers do not have to be litigators” and “may be regarded as practicing law [without appearing] in any court” [emphasis original].
Nonetheless, a concurring opinion in the case warned that the Court risked descending a slippery slope by bifurcating bar admission and legal practice into separate professional requirements. The concurring judges cautioned that any “qualitative judicial review” of AG candidates’ professional experience could set a dangerous precedent for deciding future elections in the courtroom rather than at the ballot box.
A Tale of 2 States: Bar Admission without Legal Practice?
This concern was borne out 4 years later and a few hundred miles to the north. The 1897 Connecticut law establishing the AG position required that the officeholder be “an attorney at law of at least ten years’ active practice at the bar of this state.” When Susan Bysiewicz — then Connecticut secretary of state and today the Democratic nominee for lieutenant governor — became the Democratic front-runner for AG in 2010, her qualifications were questioned by a local attorney and blogger.
Like Perez, Bysiewicz was ultimately disqualified by her state’s Supreme Court. Unlike Perez, however, she had been admitted to the state bar for more than double the minimum duration. The issue in Bysiewicz’s case was precisely the one that the Maryland judges had been mostly able to avoid: had the candidate actually practiced law as her primary livelihood for long enough to meet the eligibility criteria?
Bysiewicz had spent 4 years at a Connecticut corporate law firm and 2 years as an in-house counsel in the insurance industry. After that, her professional attention turned exclusively to politics, leaving her potentially 4 years shy of the statutory 10-year mark. Bysiewicz countered this challenge with 2 arguments.
First, she claimed that bar admission and legal practice were synonymous. Unfortunately, this contention shoehorned her into maintaining that a licensed attorney who went “fishing every day for ten years” was nonetheless practicing law. It also echoed a concern voiced by one of the judges in the Maryland case, who worried that requiring nothing but bar membership effectively meant that a candidate who had never done “anything that could conceivably, under any definition, constitute the practice of law” could be elected the chief legal officer of the state.
When this argument failed, Bysiewicz offered a more nuanced position. She claimed that because she was an attorney, her service as Connecticut secretary of state constituted the practice of law when she applied legal judgment and skills to the job. Since the secretary of state need not be (and often is not) a lawyer, Bysiewicz’s argument presumed that a role not considered to be the unauthorized practice of law when assumed by a layperson could simultaneously count as legal practice when occupied by a licensed attorney. It did not help in this regard that while serving as secretary, Bysiewicz had certified on several occasions with the state judicial branch that she was not in fact practicing law in order to secure a discount on her annual fee.
More importantly, though, the flaw in Bysiewicz’s second argument was its failure to differentiate between a constituent and a client. Her legal training and acumen were no doubt useful in executing the duties of secretary of state — which include implementing state election law — but the secretary’s obligations and authorities emanate from the statutory position, not a confidential and fiduciary relationship with either an individual or organizational client.
In ruling Bysiewicz ineligible, however, the Court went a giant step further. In stark contrast with the Maryland judges, the Connecticut justices found that the AG requirements limited eligibility to “an attorney with at least some experience litigating cases in court” and “some measure of experience in trying cases.” Since the facts established that Bysiewicz had no litigation experience whatsoever, the Court did not go on specify how much courtroom work would be deemed sufficient.
In a concurring opinion, two of the justices perceived the danger ahead. By “address[ing] an issue it need not,” the majority had invited a potential morass of eligibility challenges in future elections, to the detriment of AG candidates with exclusively transactional practices and backgrounds. Having already concluded that Bysiewicz fell short of 10 years’ experience representing clients, the Court had nonetheless waded into a contentious debate over courtroom experience.
The Presumption of Eligibility and the Meaning of Practice
When the experiential requirements for AG candidates are based solely on the length of state bar admission, the issue is straightforward and resolvable with the search of a database. When the prerequisites are framed in terms of legal practice, ambiguity and litigation may ensue. In such cases, courts must balance a reasonable interpretation of the constitutional or statutory provision with the typical presumption in favor of a candidate’s eligibility for elective office. It is not necessarily incumbent upon courts to throw up their hands in helplessness and decide that the “practice of law” is so indeterminate that bar admission is the only barometer. After all, when lawmakers want to make bar admission the sole qualification for AG candidacy, there is a plethora of evidence that they know how to do so explicitly.
However, courts must also remain cognizant that the nature of politics is such that their rulings are apt to be weaponized by candidates seeking to portray their opponents as unqualified or unfit for office. Predictably, this is what happened in Connecticut right after the 2010 Bysiewicz decision, where the eventual Democratic nominee (and current AG) George Jepsen was immediately faced with eligibility questions based on his self-description as a corporate transactions attorney rather than a hardened litigator.
Now that Jepsen is retiring after 2 terms, this year’s Connecticut AG race has prominently featured mutual accusations of ineligibility, both during the primaries and in the general election. The current front-runner’s courtroom bona fides are under fire for apparently not having taken multiple bench or jury trials to verdict as lead counsel. Indeed, the attorney-blogger who initiated the challenge to Bysiewicz’s candidacy 8 years ago has turned the issue into something of a quadrennial cottage industry. In the AG context at least, litigation experience (or lack thereof) has become Connecticut’s version of the proverbial “3 a.m. phone call” attack ad in presidential contests.
While final clarity on the meaning of qualifications for public office is perhaps best obtained through state legislative action or constitutional amendment, courts will likely continue to find themselves in the middle of AG election spats unless and until that happens. Given that the prerogative of voters to select their own leaders in democratic elections is ultimately at stake, courts would do well to confine their decisions and opinions to the narrow issues at hand. In Maryland, Perez could have been disqualified on the simple basis of bar admission without delving into the intricacies of federal versus state practice. In Connecticut, Bysiewicz could have been deemed ineligible by virtue of not having represented clients for the requisite 10 years without jumping headlong into the quicksand of privileging some types of legal practice over others.
Might it be preferable from a public policy perspective for the chief legal billet in all US states and territories to be occupied by esteemed legal practitioners with a vast array of experience, including complex criminal and civil litigation? Of course. But elections ensure that we get the government we deserve, whatever courts may think of voters’ choices.
Lieutenant Colonel Charles Kels is a judge advocate (JAG) in the US Air Force. His views do not reflect those of the Air Force or Department of Defense.
Suggested Citation:Charles Kels, The Problem of “Practice”: Balancing Professional Qualifications with Voter Choice, JURIST – Professional Commentary, Oct. 25, 2018, https://jurist.org/commentary/2018/10/charles-kels-qualification-choice/
This article was prepared for publication by Brittney Zeller, a JURIST Staff Editor. Please direct any questions or comments to him/her at firstname.lastname@example.org
Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.