Secretary of the State Susan Bysiewicz’s bid to become Connecticut’s next attorney general was dashed Tuesday when the state Supreme Court ruled she doesn’t meet the legal requirements to serve in that office.
The ruling ended the Bysiewicz campaign for attorney general just three days before the Democratic State Convention, apparently throwing the nomination to the remaining Democrat in the race, George Jepsen.
The seven-member court offered no explanation for its ruling, which came following 45 minutes of oral arguments and just over an hour of closed-door deliberations. Justice Flemming L. Norcott Jr., who presided over the hearing in the absence of Chief Justice Chase T. Rogers, said a written decision would be issued later.
The court unanimously overturned Superior Court Judge Michael R. Sheldon, who found that Bysiewicz’s duties as secretary of the state could be considered the practice of law, giving her the minimum 10 years required under state law to hold the office of attorney general.
“The paucity of evidence to support her case was pretty convincing,” Eliot Gersten, the attorney for the state Republican Party, said afterward. The state GOP had appealed Sheldon’s ruling.
“I am tremendously disappointed with the court’s decision overturning Judge Sheldon’s ruling and I strongly disagree with the decision both on the eligibility and the constitutionality issue,” Bysiewicz wrote in a brief statement. “However, I do respect the rule of law and will abide by it.”
One of Bysiewicz’s lawyers, Daniel J. Krisch, said she could file a motion asking the high court to reconsider its ruling, but added that was “very unlikely.”
Bysiewicz had initiated the legal challenge, seeking a declaratory ruling that she either met the 10-year requirement or that it was unconstitutional.
The Supreme Court also rejected the argument that the 10-year requirement was unconstitutional. Sheldon had reached the same conclusion in his decision, but because the case had been appealed to the high court, Bysiewicz was entitled to argue the constitutional question for a second time.
“This individual is nothing more than a regulator at best,” Gersten said during final arguments, noting that Bysiewicz, a Middletown Democrat, had acknowledged that she hadn’t been in court prior to this matter, even to observe proceedings, since law school.
Bysiewicz said she had served as a corporate lawyer, and not a litigator, prior to her career in Connecticut politics.
Krisch and her other lawyer, Wesley Horton, argued that Bysiewicz has issued declaratory rulings and advised municipal officials on state elections law since becoming secretary of the state in 1999, and thereby meets the “active practice” standard.
By that logic, Gersten responded, a football referee officiating professional games for 10 years also could claim to meet the legal requirements to run for attorney general provided he also held a law degree. “If you take her facts and apply it a few steps out, almost anyone qualifies,” he said.
In the early half of the 19th century, many secretaries of the state also had served as a key legal counsel to state government. But Gersten said the 1897 General Assembly clearly sought to change things when it “legislatively neutered” the secretary’s legal responsibilities while setting specific requirements for the attorney general’s post “to avoid putting a political hack in office.”
“The trial court completely ignored and paid no attention to the standards that could have been applied here,” he added.
Krisch repeatedly urged the justices to consider that eligibility standards for serving in a public office were meant to involve more than representing clients in court for 10 years. “In a democracy, it’s for the voters to choose who they want to represent them,” he said.
Though there must be “some engagement in the active practice of law,” an attorney who provides advice, issues legal opinions or otherwise employs a “trained legal mind,” meets the standard, Krisch said, adding that as secretary of the state, Bysiewicz’s clients are the citizens of Connecticut.
But the justices challenged Krisch’s interpretation with several questions.
Appellate Court Judge Thomas Bishop, who served on the panel Tuesday, questioned whether that means any elected state officials who also hold a law degree could be sanctioned by the courts for faulty legal advice given as part of their official duties.
Bishop took the place of Chief Justice Chase T. Rogers, whom court spokeswoman Rhonda Stearley Hebert said was out of the country on “longstanding personal business.”
“Is all advice legal advice” if a lawyer provides it? asked Justice Peter T. Zarella.
Bysiewicz’s lawyers had a second legal option to keep her bid for attorney general alive if the high court found she didn’t meet the “active practice” requirement.
The secretary also argued that the 1897 statute was unconstitutional on grounds that it effectively was invalidated by a constitutional amendment ratified 40 years ago.
Article II, Section 3 of the amendments to the Connecticut Constitution, adopted in 1970, reads: “Every elector who has attained the age of 21 years shall be eligible to any office in the state … except in cases provided for in this Constitution.”
There are only four specific cases spelled out. The Constitution requires that both the governor and the lieutenant governor be at least 30 years of age. It also requires state representatives and state senators to live within the districts they represent.
There is no mention of any qualification that the attorney general must be a lawyer, let alone one with 10 years of active practice.
A 1980 amendment would change the age of eligibility to 18, but otherwise retained the same wording.
Horton said the eligibility issue is not ambiguous. Had the legislature and voters wished to have written the statutory “active practice” standard into the Constitution, they would not have specified that only constitutional exceptions apply, he said.
But Associate Attorney General Gregory T. D’Auria, argued that the framers of the 1970 amendment wanted to ensure that the office of attorney general couldn’t be legislatively abolished, not to ignore 70 years of statutory duties and requirements assigned to the post by opening it up to anyone of voting age. “It is clear that there was a limited intent,” he said.
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