attorney general | a public defender

Bysiewicz as AG: I hate to say it 3

Posted on February 02, 2010 by Gideon

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:

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

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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Tags: attorney general susan bysiewicz
Category ct state law

Is Bysiewicz eyeing the Gov’s race again? 6

Posted on January 21, 2010 by Gideon

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?

Tags: attorney general susan bysiewicz
Category ct legal news

Is the Attorney General statute unconstitutional? 40

Posted on January 17, 2010 by Gideon

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”:

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

(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: