Abrams v. Lamone

Concurring Opinion by WILNER, J.

I concur with and join Chief Judge Bell’s Opinion and write separately only to respond to Judge Eldridge’s peculiar conclusions that the Constitution does not mean what it plainly says and that, even if it did, the Court shouldn’t say so.

Article V, § 4 of the Constitution states with marvelous clarity and simplicity that a person is not eligible to the office of Attorney General who has not “practiced law in this State for at least ten years.” Now, one may fairly debate whether, for purposes of that provision, certain conduct constitutes the practice of law in this State—teaching law at a law school, for example, or serving as a judge or arbitrator, or administrative law judge or hearing examiner. But to conclude that it does not require the practice of law at all in Maryland is simply extraordinary.

Judge Eldridge thinks that all that is required is that a person have been admitted to the Maryland Bar for ten years. That is not what the Constitution says, however. As Chief Judge Bell points out, in other sections, the Constitution explicitly makes membership in the Maryland Bar the effective criterion. In defining the qualifications of the Attorney General, however, the People deliberately chose a different requirement. Upon the recommendation of the Convention delegates, they determined that, to be eligible for the office of Attorney General, a person must have actually practiced law in this State for ten years.

*231Under Judge Eldridge’s view, a person could pass the Bar Examination, be admitted to practice, open a liquor store, never do anything that could conceivably, under any definition, constitute the practice of law, become politically active, and ten years later be elected as Attorney General of Maryland. The notion that that is what the Convention delegates or the People had in mind in 1864 and 1867 is really absurd. It is belied by the plain language of the Constitutional provision and is belied as well by the debates in the Constitutional Conventions.

The challenge to Mr. Perez’s candidacy was that he had not practiced law in Maryland for ten years. The focus on his not being admitted to the Maryland Bar for that period was part of the argument by Abrams that Perez had not lawfully practiced law here, for, except to the extent that a person is permitted by Federal law to appear in Federal courts and before Federal agencies without being admitted to the Bar of the State in which such appearances are made or is admitted pro hac vice to participate in a particular case, one must ordinarily be admitted to the Bar of Maryland by this Court before he or she may lawfully practice law here. That Mr. Perez had not been admitted to practice for the requisite ten years is strong evidence that he had not, in fact, practiced law here for that period.

Chief Judge Bell correctly concludes that the two go together; the Constitution anticipates that a candidate for Attorney General will have lawfully practiced law in Maryland for ten years, and that necessarily requires that the candidate have been admitted to practice here for that period. Because the condition of eligibility is that the candidate have practiced law, and because the sole challenge to Mr. Perez’s candidacy is that he had not done so, it is necessary that this Court examine and resolve whether he engaged in lawful practice in Maryland for that period. Merely holding that Mr. Perez had not been admitted for ten years does not answer the question presented and therefore does not adequately or properly decide the case.

*232Judge Eldridge suggests, without any support, that a ten-year practice requirement may create Federal Constitutional issues because it discriminates against persons in Federal Government employment. I am not aware that the Supreme Court has ever held, or even intimated, that a State could not impose such a requirement for its chief legal officer, chosen to advise and represent the State and its officials and agencies, but even if such a requirement did raise such issues, they would be raised as well by a requirement that the person practice law here, or even be admitted to practice law here, for one year. The conjured ghost of a Federal issue is, to me, the reddest of red herrings. If the General Assembly believes that the requirement should be changed—that ten years is too long or that “practiced law in this State” should be better defined—it may propose to the People an appropriate amendment to Article V, § 4.

Concurring Opinion by HARRELL and GREENE, JJ.