Bysiewicz in brief

[Yes, another Susan Bysiewicz as AG post. But these are hit-machines, so I'ma milk this cash cow till it comes home.]

Thanks to the good folks at CT News Junkie, we get to read the trial brief submitted to Judge Michael Sheldon by Bysiewicz’s attorney Wesley Horton [I guess someone at CTNJ went to the clerk's office, got a copy and scanned it, so there's this ugly watermark on every goddamn page].

My conclusion, after reading the brief, is this: Wesley Horton is every bit as good as his reputation and Susan Bysiewicz is torpedoing her own chances. If only she’d get out of the damn way and let Horton work his magic, she’s as good as CT’s next Attorney General.

Her answers to the deposition questions do nothing to help the fine arguments made by Horton. Horton, correctly in my opinion, leads with the argument that active practice means nothing more than admitted to the bar and in good standing.

He argues that the relevant rules of practice in effect in 1890 and even today distinguish between the statuses of lawyers based solely on their ability to practice law in the state: active practice as opposed to suspended or disbarred. He further argues that our courts have recognized that it is not easy to describe “active practice of law” and that a wide variety of functions can be understood to be legal practice:

Attempts to define the practice of law have not been particularly successful. The reason for this is the broad field covered. The more practical approach is to consider each state of facts and determine whether it falls within the fair intendment of the term.

As to the state of facts, this court has consistently held that the preparation of legal documents is commonly understood to be the practice of law. Grievance Committee v. Dacey, 154 Conn. 129, 140-44, 229 A.2d 339 (1966), appeal dismissed, 386 U.S. 683, 87 S. Ct. 1325, 18 L. Ed.2d 404 (1967); State Bar Assn. v. Connecticut Bank & Trust Co., supra, 145 Conn. 222; Grievance Committee v. Payne, supra, 128 Conn. 325; see also Monroe v. Horwitch, 820 F. Sup. 682 (D. Conn. 1993), aff’d, 19 F.3d 9 (2d Cir. 1994). “The practice of law consists in no small part of work performed outside of any court and having no immediate relation to proceedings in court. It embraces the giving of legal advice on a variety of subjects and the preparation of legal instruments covering an extensive field.

Statewide Grievance Committee v. Patton. This is an argument that Bysiewicz has made in the past, along with the notable “private practice” charge that she leveled against her “detractors” out of thin air. No one is arguing that “active practice at the bar of the state” literally means appearing in court and arguing in front of a judge or jury. That’s just silly.

But it’s important to note that not only is Horton arguing that she has the requisite years of admission to the bar, but in my opinion, there’s also a concession that the statute requires something more than just being someone admitted to the bar, i.e. you actually have to be engaged in the practice of law, in whatever capacity. This, of course, is in stark contradiction to Bysiewicz’s own answers to the hypotheticals posited by the Repub’s attorney (see link above).

In emphasizing this point, he quotes the Supreme Court of Florida:

[I]t is not the nature of the agency or body before which the acts are done, or even whether they are done before a tribunal of any sort or in the private office of an individual, that determines whether that which is done constitutes the practice of law. The best test, it seems to us, is what is done, not where, for the safest measure is the character of the acts themselves. If they constitute the practice of law the fact that they are done in the private office of the one who performs them or before a nonjudicial body in no way changes their character.

….

It is generally understood that the performance of services in representing another before the courts is the practice of law. But the practice of law also includes the giving of legal advice and counsel to others as to their rights and obligations under the law and the preparation of legal instruments, including contracts, by which legal rights are either obtained, secured or given away, although such matters may not then or ever be the subject of proceedings in a court.

We think that in determining whether the giving of advice and counsel and the performance of services in legal matters for compensation constitute the practice of law it is safe to follow the rule that if the giving of such advice and performance of such services affect important rights of a person under the law, and if the reasonable protection of the rights and property of those advised and served requires that the persons giving such advice possess legal skill and a knowledge of the law greater than that possessed by the average citizen, then the giving of such advice and the performance of such services by one for another as a course of conduct constitute the practice of law.

The Florida Bar re Advisory Opinion. The question in Bysiewicz’s case has always been: does what she does qualify as “active practice”? This is where I think Horton works some magic. By broadly describing “engaged in the practice of law” to include more than actually appearing in court, he gives her a shot. He makes the distinction, implicitly, between the “active practice of law” and “solely engaged in the practice of law”. The statute does not require the latter and if that were the criteria, then she surely would fail to pass muster.

Pages 12-14 of the linked PDF set about describing the various law related activities and duties the Secretary of State is required to perform, underlining his point that for over 10 years, Bysiewicz has been in good standing and doing lawyer-ish things. I’d reproduce them here, but whatever CTNJ did to the PDF rendered it impossible to copy and paste the text.

Horton then moves on to the constitutionality of the AG statute and makes the simple argument that the language of the section in the Constitution is pretty darn clear. I agree that the language is pretty darn clear. However, I think the distinction between the cases that he cites and the situation here is that the AG statute was enacted in 1897, long before the office of the Attorney General was a constitutional office. Second, there’s almost no legislative history available for that statute and no mention of the qualifications in the discussions leading up to the Constitutional amendment in 1970.

The only discussion leading up to the Constitutional amendment is that of converting the office of the Attorney General to that of constitutional magnitude, so as not to be eliminated by, you guessed it, statute. That debate is silent as to the interplay between the AG statute and the Constitutional provision. A statute, I would remind you, that had been around since 1897. Horton make a valiant effort to argue that silence doesn’t mean anything – and there is caselaw to back up that general notion. But this is where I think the argument fails.

The very fact that the only discussion surrounding the Constitutional amendment in 1970 is to ensure that the position of AG cannot be eliminated by statute seems to me to be pretty good evidence that the legislature was aware of the qualifications statute and chose to leave that intact. Had they had a difference of opinion, it would have been very easy for them to amend or eliminate the statute at the same time, to comport with this new idea that the AG need not be an attorney.

The CT Supreme Court has written:

a validly enacted statute carries with it a strong presumption of constitutionality, [and that] those who challenge its constitutionality must sustain the heavy burden of proving its unconstitutionality beyond a reasonable doubt. State v. Breton, 212 Conn. 258, 269 (1989); University of Connecticut Chapter, AAUP v. Governor, 200 Conn. 386, 391 (1986). In construing a statute, moreover, we will search for an effective and constitutional construction that reasonably accords with the legislature’s underlying intent. State v. Floyd, 217 Conn. 73, 79 (1991).

State v. Metz. Typically, courts do not address constitutional arguments if there are other (common law or statute based) ways to dispose of the claims. However, where the constitutionality of a statute is called into question and it raises a question of significant public interest, the court will – and should – decide the issue of constitutionality.

We begin by noting that we ordinarily “eschew unnecessary determinations of constitutional questions”; (internal quotation marks omitted) Stamford Hospital v. Vega, 236 Conn. 646, 663 (1996); DeBeradinis v. Zoning Commission, 228 Conn. 187, 195 (1994); McConnell v. Beverly Enterprises-Connecticut, Inc., 209 Conn. 692 (1989); and that we generally have declined to engage in constitutional analysis when we have been able to decide a case either on the basis of an established common-law principle or in reliance on a statutory provision. Binette v. Sabo, 244 Conn. 23, 51 (1998). In this case, however, the trial court’s conclusion that the school expulsion statute is incapable of having any constitutionally valid application has raised “a matter of substantial public interest … in which delay may work a substantial injustice.” See General Statutes § 52-265a. Consequently, we consider it appropriate to confront the constitutional issue raised in this appeal. We, therefore, address the trial court’s conclusion that § 10-233d (a) (1) is unconstitutionally vague without first considering whether there exists an alternate common-law or statutory basis for resolving the plaintiffs application for injunctive relief.

Packer v. Board of Education. Judge Sheldon’s hands are tied, I think and he will have to rule on whether 3-124 is constitutional. If there’s anyone up to the task, it’s him.

Strap in, folks. This one’s going to be fun!

[My ringing endorsement of Horton's work is only tempered by his apparently being on the other side of The Big Debate: he prefers to italicize his citations. Readers will know that I do not approve.]