but I told you so. Leaving aside the “does she have 10 years’ active practice” kerfuffle for a moment, I just want to give you all this moment to recognize that, well, I was right (or at the very least that the current AG agrees with me).
The long-awaited “formal opinion” from our soon to be Senator Blumenthal was issued today at 1pm. You can read it here or view the pdf here.
The opinion hits all the usual points in construing the constitutionality of a statute:
“[l]egislation is presumed to be constitutional, and a litigant challenging its validity has the heavy burden to establish its unconstitutionality beyond a reasonable doubt.” Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 299 n. 12 (2007); see also Honulik v. Greenwich, 293 Conn. 641, 647 (2009). “The court will indulge every presumption in favor of the statute’s constitutionality.” State v. Long, 268 Conn. 508, 521 (2004). “Therefore, ‘when a question of constitutionality is raised, courts must approach it with caution, examine it with care, and sustain the legislation unless its invalidity is clear.’” Id. at 521, quoting State v. McCahill, 261 Conn. 492, 504 (2002). Thus, a court faced with the question whether Conn. Gen. Stat. § 3-124 is constitutional will start with the presumption that it is. “In case of real doubt a law must be sustained.” Honulik, 293 Conn. at 647.
Does the fact that the AG statute existed for close to 70 years prior to the Constitutional amendment have any bearing on it’s constitutionality? Uh, yeah:
Similarly, in 1970, when the 1965 constitution was amended to add the Attorney General as a constitutional officer, the amendment was not adopted in a vacuum, but rather built upon an extensive and long-standing statutory scheme governing the Office of Attorney General. As noted above, the Office of Attorney General was created by statute in 1897.
…
Over the next seventy years, the statutory qualifications for the Office of Attorney General as “an elector of this State, and an attorney at law of at least ten years’ active practice at the bar of this state” remained unchanged, while the duties of the office grew substantially.4 In 1969, recognizing the heightened importance of the office, the General Assembly introduced House Joint Resolution No. 95, which amended the state constitution to add the Attorney General as a constitutional officer.
And what of that pesky Constitutional Amendment with its sparse language? Well, I cautioned people way back when that the Amendment merely spoke to the age at which a person could hold statewide office and did nothing to change the requirement that someone who was AG had to be a lawyer. I made the point that had the General Assembly wished to remove the requirement that the AG be a lawyer, it could very easily have done so:
Although the resolution passed and, in 1970, the Attorney General was added to Article Fourth, § 1, of the Connecticut constitution pursuant to Article First of the amendments, the amendment merely provided for the manner of electing the Attorney General. It said nothing about his powers or qualifications.5 This fact was not surprising, given the extensive statutory scheme that had existed for the prior seventy years and had established well-defined responsibilities and qualifications for the Office of Attorney General. In light of this history, there was simply no need for the General Assembly, as the framers of the Amendment, to import the details of this pre-existing scheme into the constitution. The framers in 1970 were well aware of the existing statutes governing the Attorney General, and nothing in the legislative record suggests that they intended to alter the duties and qualifications set forth therein. As in Dowe, those statutes must inform our analysis of the framers’ intent in drafting the constitutional provision. See Dowe v. Egan, 133 Conn. 112 (1946).
A further nail in the coffin of this preposterous “AG doesn’t have to be a lawyer” argument is provided by footnote 6:
Throughout the history of the Office of the Attorney General and continuing to the present date, the Attorney General has, as the title suggests, frequently acted in his or her capacity as an attorney in representing the State in some of the most significant legal matters facing the citizenry. See generally, Cohn, Henry S., The Creation and Evolution of the Office of Connecticut Attorney General, 81 Conn. Bar J. 345 (Dec. 2007). Indeed, when the Office was first established, the Attorney General had the sole responsibility of performing the duties and responsibilities of the Office and had no deputies or assistants. See Id. at 355. It was not until 1927 that the Legislature even authorized the Attorney General to hire a deputy, as well as “such other assistants as he deems necessary subject to the approval of the Board of Finance and Control.” Id. at 356.
Moving, now, to the AGs opinion on what “active practice” means. Soon-to-be-Sen. Blumenthal holds the opinion that “active practice” must mean more than just being a member of the bar in good standing. And he makes a persuasive argument, to be honest. My initial reaction was that he may be right, generally speaking, but that a Court in CT might be inclined to hold that since there is no definition of the phrase in the general statutes, applying a modified sort of notice requirement test, the court would give current candidates the benefit of the doubt.
Then I came to my senses and realized how ridiculous that is.
So. She’s screwed. Sorry SOTS Bysiewicz. Your best bet is to lay low and hope no one challenges your candidacy or maybe try jumping back into the Governor’s race or perhaps take 4 years off, practice law somewhere and re-enter the race in 2014. But really, don’t do something stupid like seeking a declaratory judgment. If they do, I think we’re in for some protracted hearings on your qualifications and a “public interest” appeal to the 7 Wise Ones.
(And no, there is absolutely nothing in this post that you couldn’t have gotten elsewhere on the web, like here or here or here. I just wanted to feel a little vindicated, and let’s face it, I haven’t posted in a few days.)
To make you feel better, I leave you with a little Kevin Nealon:
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