Judge tests both sides during arguments in Bysiewicz lawsuit

A Hartford Superior Court judge cast doubt Tuesday on many, but not all, of Susan Bysiewicz’s claims that her duties as secretary of the state constituted the “active practice” of law.

Judge Michael R. Sheldon heard final arguments in a case that Bysiewicz brought against her own office to resolve doubts about her eligibility to run for attorney general.

Sheldon invited the parties to challenge if the court has jurisdiction to answer Bysiewicz’s eligibility question, but he was told today that no one will raise a jurisdictional question.

Eliot Gersten, the lawyer for the intervening Connecticut Republican Party, was considering arguing that Bysiewicz’s litigation is premature. GOP Chairman Chris Healy said today they decided against making that argument.

Neither her own office nor the Democratic Party have taken any steps to block Bysiewicz from seeking the Democratic nomination or obtaining a place on the ballot, Gersten said Tuesday. So, he had said, is the litigation ripe for a ruling?

The short-lived issue of timeliness is the latest wrinkle in an unusual political and legal drama involving the 48-year-old Bysiewicz, once an undisputed rising star in Democratic politics.

In a matter of months, she has gone from being the front-runner for governor to a damaged candidate for attorney general.

On Tuesday, Sheldon was dismissive of Bysiewicz’s testimony that she practiced law every time she answered a question about election law, testified at the General Assembly on pending legislation or held a press conference.

But Sheldon was open to the claim that Bysiewicz had engaged in the practice of law if she collaborated with her legal staff on formal opinions interpreting election law.

Gersten conceded that collaboration could be seen as practicing law, but he argued that Bysiewicz acted more like a client than a lawyer, relying on her own legal staff and the attorney general’s office for advice.

“She’s no different than the CEO of a company,” Gersten said.

Gersten challenged Bysiewicz’s claim that she acted as a lawyer while overseeing the drafting of a contract with a vendor who provided the state with electronic voting machines.

“She wasn’t a lawyer then.  She was the client,” Gersten said. “And, frankly, Judge, I think she’s always the client.”

Her lawyer, Daniel Krisch, told Sheldon that Bysiewicz needs only to prove that she practiced law as secretary of the state, not that it took the majority of her time.

He conceded, however, that the active practice of law required more than that she simply be a lawyer in good standing.

In a trial brief, his co-counsel, Wesley W. Horton, told Sheldon that the current rules for lawyers entertain only four options for Bysiewicz’s status: active, inactive, retired and suspended or disbarred.

Bysiewicz ended an exploratory campaign for governor and jumped into the race for attorney general in January, after U.S. Sen. Christopher Dodd announced his retirement and Attorney General Richard Blumenthal said he would run for Dodd’s seat.

But questions soon arose about whether Bysiewicz, 1986 graduate of Duke University law school, had 10 years of active practice at the bar in Connecticut as required by statute.

Without counting at least some of her 11 years as secretary of the state, Bysiewicz would fall short.

She filed suit against her own office, seeking a declaratory ruling on whether her duties as secretary of the state constituted the practice of law.

Bysiewicz also challenged the constitutionality of the 10-year requirement, which was outlined in an 1897 law establishing the attorney general’s office and reaffirmed in 1970, when a constitutional amendment made attorney general a constitutional office

Not only is her present office the defendant, the office she wants to win in November is fighting her on the constitutionality issue.

Gregory T. D’Auria, the senior appellate counsel for the attorney general’s office, struck an incredulous tone in his brief defending the constitutionality of the 10-year requirement.

“In her brief, the plaintiff asks this Court to endorse the following remarkable conclusion: When the Office of Attorney General was elevated in 1970 to constitutional status to protect its status as an increasingly vital part of our state government, the framers’ intent…was to nullify essential professional qualifications that had existed without controversy for 73 years, opening the office even to a non-attorney.”