Is the Attorney General statute unconstitutional?

photo credit: sokabs

You’ve heard by now, I’m sure, of the ruckus surrounding Secretary of the State Susan Bysiewicz’s decision to run for Attorney General of CT instead of Governor and specifically the hubbub that followed compadre Ryan McKeen’s post asking if she met the qualifications of CGS 3-124 in order to be eligible for AG.

The statute states:

There shall be an Attorney General to be elected in the same manner as other state officers in accordance with the provisions of section 9-181. The Attorney General shall be an elector of this state and an attorney at law of at least ten years’ active practice at the bar of this state.

The question raised in regards to Bysiewicz was whether she had 10 years’ active practice, which then boiled down to a question of what “active practice” means.

I really, really didn’t want to jump into the fray, but seeing as how I was peripherally involved in Ryan’s researching the issue and posting the post and in light of the subsequent arguments on the constitutionality of the statute, I figure I owe it to nobody in particular to write this post.

So here we go: what does “active practice” mean? Nobody knows. Ultimately, if someone challenges the candidacy of SOTS Bysiewicz, a court will have to engage in a statutory construction/interpretation analysis.

Lord knows the plain language of the statute is ambiguous, so I suspect that some legislative history research will have to be conducted. I suspect that any court that reviews such a challenge would find that “active practice” means no more than a lawyer in good standing – but I’m not going into depth on that topic here.

[Addendum: What no one is charging, however, is that the candidate for AG has to have 10 years in private practice, as SOTS Bysiewicz seems to believe some are. I don't know where she got this from and she's just plain wrong on that. She's included that distinction as one of the bases for her argument that she qualifies because she has engaged in the practice of law in the public sector. This false distinction is her creation alone (as best as I can tell) and unfortunately, it is being parroted by those in the media without any correction whatsoever.]

The greater question might very well be: does 3-124 conflict with Amendment XV to the State Constitution? First, some more background. We’ve already seen what 3-124 provides. Two more statutes to consider: CGS 9-1, which defines “elector of this state”:

(e) “Elector” means any person possessing the qualifications prescribed by the Constitution and duly admitted to, and entitled to exercise, the privileges of an elector in a town;

and 9-181 which lays out the method via which elections are to be held. Now let’s look at Amendment XV to the state constitution and the crux of the arguments in support of the unconstitutionality of 3-124. It amends Article 6, Section 10 of the Constitution from:

SEC. 10. Every elector shall be eligible to any office in the state, except in cases provided for in this constitution.

to:

SEC. 3. Section 3 of article two of the amendments to the constitution is amended to read as follows: Every elector who has attained the age of eighteen years shall be eligible to any office in the state, but no person who has not attained the age of eighteen shall be eligible therefor, except in cases provided for in this constitution.

The tricky language here is “eligible to any office”. The implication, to some, then is that the only requirement to be Attorney General – an “office in the state” – is that a person be an elector. (And it’s not like our current AG hasn’t sometimes acted as if he had no legal training)

So we are left with two choices: either there is no requirement that the Attorney General be an actual, you know, attorney, or that Amendment XV did something very limited: lower the age at which one can be an elector (for further context see Secs. 1 and 2 of Amendment XV).

There can be no middle ground, however: either the Constitution bars any additional qualifications for AG beyond “elector” or it is silent, in which case 3-124 is appropriate.

It might be important to note the duties of an Attorney General:

The Attorney General shall have general supervision over all legal matters in which the state is an interested party, except those legal matters over which prosecuting officers have direction. He shall appear for the state, the Governor, the Lieutenant Governor, the Secretary, the Treasurer and the Comptroller, and for all heads of departments and state boards, commissioners, agents, inspectors, committees, auditors, chemists, directors, harbor masters, and institutions and for the State Librarian in all suits and other civil proceedings, except upon criminal recognizances and bail bonds, in which the state is a party or is interested, or in which the official acts and doings of said officers are called in question, and for all members of the state House of Representatives and the state Senate in all suits and other civil proceedings brought against them involving their official acts and doings in the discharge of their duties as legislators, in any court or other tribunal, as the duties of his office require; and all such suits shall be conducted by him or under his direction.

So this statute, too, would be unconstitutional as would any other statute that requires a person appearing in court on behalf of any party to be licensed to practice law in the State. But then again, keep in mind that this is a State Constitution where the words “double jeopardy” appear exactly zero times.

As an intrepid reporter and longtime reader points out, there is also no requirement that the AG be a live person. /snark

It might be of some relevance that 3-124 was enacted in 1949, some 31 years before Amendment XV.

I think you know where I fall on this. Where do you?

[2nd update: This issue fully deserves this image:

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