Monday, March 26, 2007

Abrams v. Lamone (Ct. of Appeals)

Filed March 26, 2007. Plurality Opinion by Chief Judge Robert M. Bell, joined by Judge Alan M. Wilner (now retired, specially assigned) and Judge Dale R. Cathell. Concurring opinion by Judge John C. Eldridge (retired, specially assigned), joined by Judge Irma S. Raker and, as to Parts I and II only, by Judge Glenn T. Harrell, Jr. and Judge Clayton Greene, Jr. Concurring opinion by Judge Alan M. Wilner. Concurring opinion by Judge Glenn T. Harrell, Jr. and Judge Clayton Greene, Jr.

From the official headnote:
The constitutional requirements, as prescribed by Article V, § 4 of the Maryland Constitution, for the office of the Attorney General of Maryland mandate that a candidate for that office be a member of the Maryland Bar for at least ten years and be a practitioner of law in Maryland for an identical requisite period. Where a candidate was a member of the Maryland Bar for only five years, and practiced, albeit for a period of more than ten years, primarily outside of the State, he was ineligible to run for the office of the Attorney General in the primary election.
In a companion case to Liddy v. Lamone (discussed in this post), the Court of Appeals, in a rare plurality decision with three separate concurring opinions, a total of 104 pages in the slip opinions, unanimously REVERSED the decision of the Prince George's County Circuit Court that had found a candidate for the office of Attorney General ("Perez") qualified, on the grounds that he had not "practiced Law in this State for at least ten years" as prescribed by the eligibility requirements of Article V, Section 4 of the Maryland Constitution.

Before declaring his candidacy for the office of the Attorney General of Maryland ("AG"), Perez had submitted a request for an opinion of the AG as to the sufficiency of his credentials. In sum, Perez had been a member of the Maryland Bar for only five years, beginning when he joined the faculty of the University of Maryland School of Law, but before then he had been an attorney representing the federal government in various capacities since 1989, including cases involving the federal government's interests in Maryland courts. The AG issued an opinion that concluded that Perez was in fact qualified to hold the office of AG. Based upon that opinion, Perez announced his candidacy for AG, running as a Democrat. A Republican candidate for that office ("Abrams") challenged Perez's qualifications and sought declaratory and injunctive relief against the State Administrator of Elections and the State board of Elections ("Lamone") to keep him off the ballot.

While rejecting Lamone's motion to dismiss on the grounds of laches, the court below granted Perez's motion for summary judgment. An appeal was noted, and the Court of Appeals granted certiorari. Oral argument was held on August 25, 2006, and that day the Court issued its order reversing the judgment below. The plurality and concurring opinions set forth the reasons for that order.

The Court reviewed the history of the office of the AG, and of the constitutional provision setting forth the qualifications for that office, as well as the parties' arguments on the issue. Looking at the plain language of the the provision, the Court noted that it had previously refused to adopt a precise definition of the term "practice law", but now held that, as used in Article V, Section 4, the term means practiced law in Maryland, as a member of the Maryland Bar, finding that the practice of law in Maryland and Maryland Bar admission are "coterminous". The Court found support for its position in the legislative history of the provision, as well as the responsibilities to be acquitted by the AG, and no reason to interpret the provisions more liberally than the plain meaning would support. The Court also declined to equate Perez's admission to federal bar and authorization to appear in Maryland courts with respect to the interests of the federal government as equivalent to "practicing law" in Maryland. The Court then went on to articulate a two-part test for eligibility under Article V, Section 4:
that the person (1) has been admitted by this Court to practice law in Maryland for [ten years], and (2) pursuant to that admission, has, in fact, practiced here for that period.
The Court cautioned that it was not creating a Federal-State dicotomy, since Maryland practice include participation in federal courts and federal courts address issues of Maryland law, nor must the person actually appear in any court in order to "practice law" in Maryland. The Court found that Perez had neither been admitted to the Maryland Bar nor had he practiced law in Maryland as required by the Maryland Constitution, and consequently held him to have been ineligible for the office of AG.

In a concurring opinion joined by Judge Raker, and in part by two other judges, Judge Eldridge agreed with the result, and in particular with the requirement that the candidate must have been admitted to the Maryland Bar for ten years to be eligible, but disagreed with the need for a second prong of the plurality's test for eligibility, since the first prong alone is dispositive, and to reach the second prong requires the Court to address an issue not presented by the litigants. In a portion of the concurring opinion not joined by the two other judges, Judge Eldridge found no support in the language or legislative history for imposition of the second prong, suggesting that, "if ever adopted by the majority of this Court," the second prong of the test set forth in the plurality opinion might exclude numerous Maryland lawyers who would otherwise qualify, on the basis of their having practiced in other jurisdictions or primarily under federal law, and would serve as the basis for endless challenges to qualifications in the future.

In a concurring opinion, Judge Wilner took exception to Judge Eldridge's "peculiar conclusions" that the Constitutional provision only requires admission to the Maryland Bar, and did not require any actual practice of law. In a final concurring opinion, Judges Harrell and Greene agreed with the portion of Judge Eldridge's opinion that indicated it was unnecessary to go beyond Perez's failure to have been admitted to the Maryland Bar for the required ten years, but unlike Judge Eldridge they were unwilling to reach the merits of the second prong of the plurality opinion's two-part test.

The plurality and concurring opinions are available in PDF format.

No comments: