At the risk of beating a decomposing horse, I want to reply to a comment I received on my post about Susan Bysiwicz’s legal problems. Here it is, the first paragraph being a quote from my post:
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.
But the Legislature did not write the relevant provision (Art. 6, Sec. 10):
Every elector shall be eligible to any office in the state, except in cases provided for in this constitution.
That wasn’t written by the Legislature, but by the Constitutional Convention. The amendment that established the AG as a Constitutional Officer (Amendment I, 1969) was written by the Legislature, but they did not see fit to provide additional qualifications in their amendment. (The offices of Governor, Lt. Governor, State Rep, and State Senator all have additional qualifications.)
This is really just a restatement of the argument that the statute is unconstitutional because it imposes a requirement that the constitution does not. I actually dealt with this in my original post, but some additional discussion might be appropriate.
First, I don’t disagree with the commenter’s factual statements. This is just another way of saying that the legislative enactment (the 10 year active practice requirement) preceded the creation of the constitutional office. One could argue that the constitutional change implicitly repealed every statute on the books regarding the attorney general. It is not an irrational argument, but it would be irrational to argue that the legislature intended to do that. No one could argue with a straight face that the legislature intended to open up the AG’s job to a high school graduate with no legal training. Parenthetically, the fact that the statute came first probably weakens Bysiewicz’s case. Had the legislature tried to add qualifications by statute after the enactment of the constitutional provision, her argument would be much stronger.
It is not impossible that a judge would rule that, while the legislature clearly intended for the experience requirement to stay in place, that it blew it, and created a situation that permits any 18 year old elector to be attorney general. That is not impossible. And given that our legislature is not the United States Senate, it’s probably an oversight that the legislature would swiftly correct. A judge might reasonably anticipate just that response, and feel that s/he could safely rule the statute unconstitutional on the theory that the problem would be fixed before any harm could be done. After all, right now the only person affected is Susan, and at least all of us on this side of the political fence can probably agree that she is actually, as opposed to legally, qualified for the job. That is the argument that will have to prevail in court, and it is the argument the commenter is implicitly making.
Count me unconvinced. I wouldn’t bet my life savings, but if I had to put a dollar on either side, I’d bet that Blumenthal’s argument wins. Which gets us back to my final conclusion, which I’ll reiterate. As a person who wants to see a Democrat win, I’ll be backing one of the other candidates. Why buy into trouble?
By the way, it is possible that any group or individual voter, even a group of Democrats, could bring suit once Susan certifies herself as a candidate. I don’t know if individual voters would have standing, but it seems possible that anyone could bring an action seeking a declaratory judgment that Susan was ineligible. In that case, Blumenthal’s office would presumably come in to represent the state, which might be awkward, but Susan would need to get counsel of her own. Or, she could represent herself, and get in some active practice.
One Comment