The Perez Debacle

FreeStatePolitics has a well-written and informative essay today regarding the situation surround Tom Perez's disqualification from last year's Democratic Primary for Attorney General.

Short version: does one have to be barred for ten years in Maryland in order to be Attorney General?

But for some reason, Judge Bell saw it fit not only to say, yes, one must be barred for ten years, but to also say that one must be an active practitioner in Maryland as well, "steeped" in the practice of Maryland law.

This was a slap at Perez, and nearly every other attorney, who lives in Maryland, is barred in Maryland, but works in the District of Columbia. That's right: if you are a federal attorney barred in Maryland, or work in D.C. with no real practice in Maryland, you can't run for Attorney General.

More importantly, it raised more questions than necessary. What does it mean to be "steeped" in the practice of law in Maryland? How much is enough practice in Maryland to qualify? What constitutes practice "in" Maryland?

Judge Elkridge, in his concurring opinion, rightly points this out. Indeed, the Appellant's own counsel , when questioned by the Court with a hypothetical, conceded the point that if one is barred in Maryland, but practices primarily in D.C., that attorney should be considered a practicing Maryland attorney...

So what's the problem here? Why did Judge Bell find it necessary to go beyond the confines of what the Court was asked?

The can of worms has been opened. Now it will be open to debate, and even more litigation, if one wishes to run for Attorney General in the future and wants their qualifications for practicing law in Maryland to be under scrutiny.

All excellent points. The problem is the fact that the State Constitution is incredibly vague:

SEC. 4. No person shall be eligible to the office of Attorney General, who is not a citizen of this State, and a qualified voter therein, and has not resided and practiced Law in this State for at least ten years.

No where in the Constitution does it indicate what the idea of "practiced Law in this State for at least ten years" means. I can somewhat see the point that if you are not actively practicing in Maryland but are working in D.C. that you may not actually be practicing in the state. But how does one determine that? Theoretically, one who is a member of the Maryland bar has been practiced (or licensed to practice) in the state, much in the same way as somebody who has a driver's license is considered a drive regardless of how many times they drive a car in the state of Maryland. This leaves such decisions much too susceptible to the interpretation of a judiciary legislating from the bench.

What is odd, though, is that the only the office of Attorney General has such an ambiguous definition. The Constitutional qualifications to serve as a State's Attorney are less stringent in definition:

SEC. 10. No person shall be eligible to the office of State's Attorney, who has not been admitted to practice Law in this State, and who has not resided, for at least two years, in the county, or city, in which he may be elected.

Which means that you only must have been admitted to practice Law, not actually practice law. That word makes the entire difference. And there is similar language dealing with the fact that Judges need to be admitted to practice law in the state without any specificity as to how long they should have been admitted to practice.

Regardless of Perez's politics (which are out there for my tastes) the truth of the matter is that he got hosed by the court last year. His qualifications to serve as Attorney General given his limited time practicing before Maryland Courts are a debatable point, however it seems to me that the spirit of the law would be in his favor.

The correct thing to do in order to avoid such goofiness again would be to amend the Constitution to either clarify this section or to reduce the requirements to make it so that the Attorney General need only to be admitted to the Maryland bar.