Tag Archives: attorney general

Bysiewicz in brief

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[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: Continue reading →

Bye bye Bysiewicz

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The transcripts of Susan Bysiewicz’s deposition have been released after her lawyer, the renowned Wesley Horton, conducted a cursory 5 minute search of the relevant law and determined he couldn’t block their dissemination.

It’s not looking good.

“You’ve actually said you’re every bit as qualified as Dick Blumenthal was [in 1991] when he took this position, based upon your legal experience, correct?” Gersten asked during the March 31 desposition.

“Yes,” she answered.

“And you’re aware, aren’t you, that prior to the time Mr. Blumenthal became attorney general, he actually, in contrast to you, appeared in court, correct?”

“Yes,” she said.

“In fact, he tried a bunch of cases, didn’t he?” Gersten said. “You never tried any cases?”

“No,” Bysiewicz said.

Then she was asked a series of ludicrous hypotheticals, the answers to of each of which should have been a resounding no: Continue reading →

Bysiewicz as AG: I hate to say it

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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: Continue reading →

Is Bysiewicz eyeing the Gov’s race again?

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The “does the AG have to be a lawyer” circus won’t end. SOTS Bysiewicz has followed through on her promise to seek a formal opinion from the current AG (and next Senator from CT) Blumenthal.

I don’t understand this. No one has challenged her qualifications – legally – yet. One candidate, George Jepsen, has said he isn’t going to ever.

The request for an opinion brings forth some very interesting facts regarding the AG statute:

Bysiewicz wants to know if that section adopted in 1897 is “constitutional,” since it wasn’t until 1970 that the constitution was amended to make the attorney general one of the state’s constitutional officers.

“The Constitution contains no requirement for the office of the Attorney General,” Bysiewicz writes.

Then in 1980 the constitution was amended again to say “Every elector who has attained the age of eighteen years shall be eligible to any office in the state.”

In light of the constitutional provisions Bysiewicz wondered if the statute that talks about active practice is still in effect “or is it superseded by the subsequent constitutional amendments?”

And when push comes to shove Bysiewicz wants to know who will make the determination of whether the requirement of 10 years of active practice has been satisfied.

So why do this now? Why create a problem when there isn’t one?

I think there’s only one answer. She wants to know now, so she can get out quickly if she has to. And so she can then jump back into the race for Governor.

What do you think?

Is the Attorney General statute unconstitutional?

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Grumpy Kid

Creative Commons License 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”: Continue reading →