EC. 270 OF THE LOS ANGELES city Charter provides: “The City Attorney must be qualified to practice in all the courts of the state, and must have been so qualified for at least five years immediately preceding his or her election….” Does a person qualify for the post of city attorney if he or she was disqualified from practicing law during any part of the five year period preceding the election by virtue of having been on inactive status?
Los Angeles Superior Court Judge Mitchell Beckloff, one of the court’s ablest members, on Tuesday answered that question in the affirmative. We believe he was wrong.
Beckloff denied a writ petition sought by a voter (apparently fronting for city attorney candidate Richard Kim, a deputy city attorney) aimed at barring private practitioner Marina Torres from the June 7 ballot. She wants to be elected city attorney but was on voluntary inactive State Bar status from Feb, 1, 2016, until Jan. 1, 2018.
The judge presented this reasoning in his order:
“There is a distinction between being qualified to practice law and being eligible to practice law. Active and inactive licensee status does not inform on an attorney’s qualification to practice law—it informs on whether a member of the State Bar may undertake to represent a client in the state. Licensee status is distinct from whether an individual is otherwise qualified to practice law. Entitlement to practice law based on active or inactive licensee status does not inform on an attorney’s qualifications to practice law. Active or inactive licensee status reflects an otherwise qualified member of the State Bar’s eligibility to engage in the practice of law. Voluntary inactive status merely reflects a State Bar member’s request to become inactive, the member’s report he/she will not be actively practicing law in California, and a reduction in annual fees paid to the State Bar.”
He explained in a footnote:
“ As noted by the City, various dictionaries define qualified as ‘fitted (as by training or experience) for a given purpose,’ and ‘having finished a training course, or having particular skills etc.’ ”
The point Beckloff missed is that “qualified” has more than one meaning, and he resorted to the wrong one.
HE MERRIAM WEBSTER ONLINE DICTIONARY defines “qualified” as “fitted (as by training or experience) for a given purpose,” a definition alluded to by the judge. That dictionary provides as a synonym, “competent.” However, it also defines “qualified” as “having complied with the specific requirements or precedent conditions (as for an office or employment),” with a synonym being “eligible.”
Rather than distinguishing between “qualified” and “eligible,” the entry shows that they can be used interchangeably.
Court of Appeal Justice John Segal of this district’s Div. Seven, in a Dec. 9, 2016 opinion that has nothing to do with elections (De Vries v. Regents of University of California), noted various definitions of “eligible” including one in Black’s Law Dictionary: “legally qualified for an office.” Segal said that “the ordinary meaning of ‘eligibility’ connotes qualification” (in that case, for education benefits).
As early as 1887, the California Supreme Court, in People ex rel. Atty. Gen. v. Leonard, said that none of the elections cases surveyed indicated “that eligibility to office did not mean the qualification to hold as well as to be elected to an office.” That was reiterated by the high court in its 1925 decision in Helwig v. Payne.
HE WORD “QUALIFIED,” as used in the Charter, unmistakably connotes meeting legal requirements, and does not relate to “fitness.” Whether someone is “fit” for an office is a matter of opinion, which cannot reasonably be supposed to be within the contemplation of the Charter provision.
For example, an applicant for a judgeship is legally qualified for an appointment by virtue of having been a member of the State Bar for 10 years, under Art. VI, §15 of the state Constitution, yet the label of “not qualified” might be affixed by the Commission on Judicial Nominees Evaluation. In so rating the person, the commission is not disputing that the would-be appointee is legally “qualified”—or is not “ineligible,” as phrased by the constitutional provision—but is expressing the view that the person is lacking in fitness.
Some would say (while others would not) that the present city attorney, Michael Feuer, is “qualified” for the post he holds, in terms of ability and performance, and that he would thus presumably remain qualified to serve as city attorney in the years ahead. Yet, Feuer is unquestionably not qualified to serve another term, legally, because §206 of the city Charter says: “No person may serve more than two terms of office as City Attorney,” and he’s in his second term.
Thus, someone can possess the qualifications to perform a task—in the sense of possessing the necessary skills—without qualifying for the undertaking so far as meeting established legal requirements.
A professional driver who has participated in the Indianapolis 500 would be no more “qualified,” so far as the law is concerned, to maneuver a vehicle along Wilshire Boulevard than a 5-year-old if that person lacks a current driver’s license. No matter how gifted a person might be in performing particular feats, that person cannot be said to be “qualified” to demonstrate his or her talents where doing so entails engaging in an activity requiring a license where such a license is not in force.
During the period from Feb, 1, 2016 until Jan. 1, 2018, Torres undoubtedly had the qualifications to represent a client in a California court, so far as proficiency is concerned, but was not legally qualified to do so because she did not possess an active State Bar license and such representation would have constituted a misdemeanor and a contempt.
S SHE “QUALIFIED” to be Los Angeles’s city attorney, so far as “fitness” is concerned? An answer to that question requires a judgment call, a subjective assessment of her background, her platform, and her personal qualities. Surely that is not the inquiry that the Charter provision intends. It cannot possibly envision election officials barring a candidacy based on their perception that the person lacks the competency to hold the office sought.
The fact that she met the qualifications for being admitted to the State Bar—satisfying the educational requirements, passing the bar exam and the moral fitness review and paying her dues—is aside from the issue of whether she meets the qualifications for the office of Los Angeles city attorney in light of the city Charter requisites.
Is Torres qualified for the post she seeks from a legal standpoint in light of her inactive bar status during the five-year period preceding the election? Any objective analysis dictates the answer:
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