Susan Bysiewicz is in a bit of trouble. She withdrew from her exploratory gubernatorial campaign, and announced her candidacy for attorney general. Turns out, however, that there is a more than reasonable legal argument that she is not qualified for the job.
Here are the facts: Susan practiced law for about six years before entering politics. She may or may not have checked a box on her occupational tax form to the effect that she was not practicing law during her political period, but I’ve become somewhat convinced that, while that might prove politically embarrassing, should she continue in her quest, it is probably not a total legal impediment, though it may be evidence against her. After she announced, a Connecticut blogger (and I’m not sure who) brought up the provisions of Section 3-124 of the Connecticut General Statutes, which reads, in part:
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.
After the issue was raised, Susan (I’m going to use her first name, since I can consistently spell it right) asked Dick Blumenthal for his opinion. She had a colorable reason to ask him for the ruling, because as secretary of state she is required to certify candidates. Blumenthal sort of refused to bite, ultimately kicking the can to the courts. At least that’s the way it’s been played in the media, but my own reading of his decision leads me to believe that Susan is in serious trouble.
First, a little history. At the present time the Attorney General is a constitutional officer. It has not always been thus. Prior to 1970 the AG’s office was a creature of statute. The Constitution was amended in 1970, merely adding the AG to the list of officers elected every four years, but the statutory system that had created the job remained on the books. Among those statutes was the statute that includes the 10 year active practice provision.
There is a separate provision in the Constitution that provides that:
Every elector who has attained the age of eighteen years shall be eligible to any office in the state.
So Susan has two arguments. First, she argues that the provisions of the Constitution, conferring eligibility on anyone over 18, trump the statutory provisions and render them unconstitutional. In other words, if the Constitution says anyone can hold any office, the legislature can’t arbitrarily, or even non-arbitrarily, restrict eligibility for any office beyond the age requirement in the Constitution. Her second argument is that the active practice of law consists of basically being a licensed lawyer, and that therefore any lawyer with 10 years of bar membership is eligible. Her third argument is that the Secretary of State is engaged in the active practice of law.
It was only as to the third argument that Blumenthal kicked the can to the courts. He ruled against Susan on the other two.
To a very concrete thinker, the first argument should have a certain superficial appeal. The argument goes like this. The constitution is the supreme law. The Constitution does not require active bar membership, and its language is rather emphatic (Every elector…shall be eligible to any office”). The statute in question adds an additional requirement that, as a practical matter, no 18 years old can ever meet. So in addition to imposing an experience requirement, it abolishes the age requirement.
Blumenthal responds that the amendment that made the AG a constitutional officer was enacted against the backdrop of the very statute that Susan would like to invalidate. We assume that a legislature acts with knowledge of pre-existing law, and there is no reason to believe that the legislature intended to repeal the quite reasonable requirement that the Attorney General be an attorney. Not only does that seem unreasonable, but if the legislators had so intended, they would have repealed the statute explicitly. He concludes, I think correctly, that a court would hold the statutory requirement constitutional.
It goes downhill from there for Susan. Blumenthal demolishes the argument that merely being an attorney is the same as actively being an attorney. To state it that way pretty much refutes it. If the legislature intended to make any attorney whose license was more than 10 year old eligible for the office, it could have done so quite easily. A cardinal rule of statutory construction is that each word in a statute is presumed to have meaning, and there’s every reason to believe that the legislature intended this word to have meaning. The legislature obviously wanted the chief civil attorney in the state to have some experience. That’s totally rational, and unlikely to raise judicial hackles.
So, at least in my opinion, Susan must argue that, as Secretary of State, she is engaged in the active practice of law. The fact, if fact it is, that she ticked off the “not actively practicing” box on her occupational tax form may cause her PR problems down the road. I don’t think that dooms her case in the abstract. She could have been wrong when she ticked that box, so she may be responsible for back taxes and maybe for making a false statement, though I think the latter is a stretch. In any event, it would certainly be admissible as evidence of her own understanding of the duties of her office. (I should state again that I am not 100% sure how she completed this form; I am relying on double and triple hearsay).
My own opinion is that had she so stated on that form, it would have been a true statement. While legal training might be very helpful for a secretary of state, it is neither a prerequisite for the job, nor does the job involve the practice of law. If it did, then most of our secretaries of state have been engaged in the unauthorized practice of law, which is illegal. On the other hand, the case law cited by the attorney general, at least some of it, implies or states that a law professor who merely teaches the law is engaged in active practice. One does not even need to be admitted to the bar to teach in a law school. Heck, you don’t even, strictly speaking, need a law degree. So I suppose Susan could argue that engaging in a line of work in which one is regularly called on to use one’s legal training is sufficient to satisfy the statute. My own opinion is that the argument proves too much; anyone with a law degree could argue that their training comes in handy in almost any professional or business related job. The result would be to render the “active” in “active practice” somewhat meaningless.
All that being said, lets be generous and give Susan a 50% chance of winning in court. What does the potential delegate to the convention, or Democratic primary voter who wants to win, make of all this? Susan would probably be a perfectly good attorney general. This issue aside, she is probably the most electable of the three announced candidates. For myself, based on what I know at the moment, and if I were a judge, I would rule her ineligible for the office. Nominating her, and/or electing her, is, in my opinion, asking for trouble. I don’t know what the courts do when they declare an elected candidate ineligible for the office to which they were elected. I seem to recall Joe Biden was actually a few days short of 30 when he was first elected to the Senate, but somehow the problem went away. It’s a problem in which I, personally, would prefer not to invest, nor do I want to find out that the answer is that the runner up gets the office. Right now Susan is taking the position that she’ll forge ahead, until someone sues her. That means the Republicans can bide their time, and sue at the most opportune time for them, unless one of the Democrats sues her first, which might be off the table, for political reasons. Personally, until this is cleared up, I’m supporting anyone but Bysiewicz. It’s more important that we win, than that she wins.
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