Posts tagged susan bysiewicz

Bysiewicz in brief

Apr 11th

[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:

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

[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.]

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attorney general, susan bysiewicz

Bye bye Bysiewicz

Apr 6th

Posted by Gideon in ct legal news

2 comments

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:

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

attorney general, susan bysiewicz

Bysiewicz as AG: I hate to say it

Feb 2nd

Posted by Gideon in ct state law

5 comments

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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Is Bysiewicz eyeing the Gov’s race again?

Jan 21st

Posted by Gideon in ct legal news

6 comments

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?

attorney general, susan bysiewicz

Is the Attorney General statute unconstitutional?

Jan 17th

Posted by Gideon in ct state law

40 comments

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:

]

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Posts tagged susan bysiewicz

Bysiewicz in brief

Bye bye Bysiewicz

Bysiewicz as AG: I hate to say it

Is Bysiewicz eyeing the Gov’s race again?

Is the Attorney General statute unconstitutional?

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Posts tagged susan bysiewicz

Bysiewicz in brief

Bye bye Bysiewicz

Bysiewicz as AG: I hate to say it

Is Bysiewicz eyeing the Gov’s race again?

Is the Attorney General statute unconstitutional?

search the blog

recent comments

recent posts

terms of use

Meta

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