It is unusual for courts to decide on the qualifications for candidates for state attorney general, but it has happened in three states during the past two election cycles.
Although it was the most recently decided, the California case about attorney general qualifications was filed before the 2018 election. A petition for writ of mandamus was filed by another candidate for attorney general to preclude Xavier Becerra (who eventually won the 2018 election for state attorney general) from running for the office. The petitioner alleged that Becerra was ineligible because he was an “inactive” member of the California Bar from 1991 until 2016. Petitioner argued that an “inactive” attorney cannot practice law in California and is not therefore, “admitted to practice before the Supreme Court of the state for a period of at least five years immediately preceding his election.”1 The trial court denied the petition and the court of appeals affirmed the trial court’s decision.
The appellate court held that the phrase “admitted to practice” refers to the event of admission to the bar and the status of being admitted, but does not require the active practice of law. “Becerra did not cease to be ‘admitted to practice’ in California when he voluntarily changed his status to ‘inactive.’” Although there are California cases in which attorneys who had been suspended for disciplinary reasons or non-payment of dues were deemed not to have satisfied the statutory requirement, the court distinguished those cases on the grounds that the State Bar Act permits an attorney to voluntarily choose inactive status, and that person remains a member of the Bar, although inactive. The court noted that statutes from other states where a candidate has been disqualified from office all include the phrase “active practice.” “The absence of an ‘active’ or ‘actual’ qualifier in [the California statute] indicates that eligibility for Attorney General does not impose this additional requirement . . .” The court held, “[A]n attorney who chooses voluntary inactive status is not thereby disqualified from accruing eligibility for the office of Attorney General.” Early v. Becerra, 2020 Cal. App. LEXIS 269 (Cal. App. Apr. 20, 2020).
The qualifications for office of attorney general were also at issue during the 2019 Kentucky attorney general election. Kentucky statutes allow a voter to file suit to challenge the bona fides of any candidate in a Kentucky election. Plaintiff filed suit, alleging that Daniel Cameron, a candidate for Kentucky Attorney General, did not possess the qualifications required by Kentucky’s constitution and statutes. Cameron was admitted to the Kentucky Bar in October 2011. He subsequently clerked for a federal judge for two years, during which time he was prohibited from the private practice of law. He then practiced law in a firm, became legal counsel to the United States Senate Majority Leader, and returned to private practice before becoming a candidate for attorney general of Kentucky.
The constitution of Kentucky states, “[t]he Attorney-General shall have been a practicing lawyer eight years before his election.” Ky. Const. §92. Plaintiff argued that the candidate did not satisfy this requirement because “his service as a federal judicial law clerk does not constitute the practice of law.”
The court reviewed a 1937 Kentucky Supreme Court decision that defined “practicing law” as not limited to the conduct of cases in courts. . .. [I]t embraces the preparation of pleadings, and other papers incident to actions and special proceedings and the management of such actions and proceedings on behalf of clients before judges and courts, . . . the preparation of legal instruments of all kinds, and, in general, all advice to clients. . . 2
The Kentucky Supreme Court Rules define the practice of law as “any service rendered involving legal knowledge or legal advice, whether of representation, counsel or advocacy in or out of court . . .”3 and state “[l]awyers may engage in the practice of law in Kentucky . . . as employees of a United States government agency or department.”4
The court also analyzed an unpublished decision about an earlier candidate for attorney general who had been State Auditor of Public Accounts, which the plaintiff in that case argued did not qualify as practicing law. The trial court held that the candidate was qualified because he had been licensed to practice law for the requisite eight years. The case was appealed, and the appellate court upheld the trial court, agreeing that the state constitution established a broad standard, which was satisfied by someone who has been licensed to practice law for that period, stating “The constitution establishes only the broadest qualifications. Evaluation of the character and experience of candidates is left to the electorate.”5
Applying the reasoning of these cases, the court found that because Cameron was a licensed lawyer for more than eight years, he was qualified to run for attorney general. The court also held that the two years as federal law clerk may count toward the eight-year requirement in the Kentucky constitution. During those years and during his time as legal counsel in the Senate, Cameron’s positions involved “service rendered involving legal knowledge or legal advice” as specified in Kentucky Supreme Court Rule 3.020. Jackson v. Cameron, No. 19CI-5702 (Ky. Cir. Ct. Jefferson Cty. Oct. 9, 2019).
Most recently, in Montana, a citizen filed a request for declaratory ruling with the Montana Commissioner of Political Practices alleging that Raph Graybill, a candidate for Attorney General, did not meet the qualifications for Attorney General laid out in the Montana constitution. The constitution provides that a person is not eligible for the office of attorney general unless he or she is an attorney in good standing admitted to practice law in Montana “who has engaged in the active practice thereof for at least five years before election.” The petitioner alleged that Graybill’s experience clerking for the Ninth Circuit and his experience in practice of law outside of Montana did not satisfy the five-year requirement.
Graybill was admitted to the Montana Bar on September 22, 2015 and was a member in good standing. He clerked for the Chief Judge of the U.S. Court of Appeals for the Ninth Circuit in Billings, Montana for one year, practiced law for 9 months in Seattle, Washington, then served as Chief Legal Counsel to the governor of Montana. The primary election was held on June 2, 2020, and the general election was held on November 3, 2020. A candidate running for Montana attorney general must file a declaration for nomination, in which the candidate states, “I hereby affirm that I possess, or will possess within constitutional and statutory deadlines, the qualifications prescribed by the Montana constitution and the laws of the United States and the State of Montana.” The petitioner argued that the definition of “election” under Montana statutes included the primary election, and that Graybill would not have been a member of the bar for five years by the time of Montana’s primary election.
The Commissioner held that the term “election” meant the general election. Citing Montana statutes, the Commissioner held that the primary election means “a statutory procedure for nominating candidates to public office at the polls.” The statutes also provide that in a primary, qualified political parties “nominate candidates” to run for the offices “filled at the general election,” which occurs in November. The Commissioner concluded that the “election” means the general election because the primary election is held for party candidate nominations, and the general election is “held for offices.”
The Commissioner next addressed the question of whether Graybill would meet the eligibility requirements for the office of attorney general by the time of the general election on November 3, 2020. The plaintiff argued that Graybill did not meet the “active practice” requirement because his time as a clerk for the Ninth Circuit and his time practicing law outside of Montana do not constitute “active practice of law” in Montana. Graybill argued that the state constitution required two years of residence in the state and five years of active practice of law, either in state or outside the state. After reviewing the legislative history of the constitutional provision, the Commissioner concluded that the practice requirement could be fulfilled either in Montana or outside of the state.
The final question addressed by the Commissioner was whether a judicial clerkship is the “active practice of law.” The Montana Supreme Court allows attorneys to be admitted upon motion (without taking the bar exam) if they meet certain qualifications, including five years of the active practice of law. For purposes of admission to the bar, “service as a judicial clerk” is specifically included. The Commissioner concluded that Graybill’s judicial clerkship should be included as the active practice of law. Graybill’s time practicing in another state also should be included, according to the Commissioner, because Graybill had maintained his Montana bar admission and if his out-of-state clients had wanted representation in Montana during that time, he would have been able to represent them there. Wanzenried v. Graybill, No. COPP-2020-DR-0001 (Mont. Comm’r of Political Practices, Feb. 28, 2020).