Is Susan Bysiewicz Legally Qualified To Serve As Attorney General?

by Ryan McKeen

I don’t know.  The truth is that in my opinion Susan Bysiewicz would make a fantastic anything she wants to do. She’s intelligent and hardworking. In the interest of full disclosure, I’m a Democrat and would have voted for Susan Bysiewicz for Governor. I am not involved with nor have I ever been contacted by anyone running for attorney general from either party.

But this post isn’t about that. It’s about whether or not she’s legally qualified to serve. Keep in mind that I’m a lawyer engaged in the active practice of law who happens to devote some of his free time to this site. I’m not Bob Woodward. A few clicks of the google is as far as I go.

Let me begin by saying it’s very possible and perhaps likely that Ms. Bysiewicz is legally qualified to serve as attorney general. Many Connecticut legislators maintain law practices while serving in the General Assembly. It’s possible that something like that just didn’t make the cut in her online biography.

At any rate, even if there’s an easy answer, and that answer is “yes” the question is still worth asking. It’s a fair question and one that deserves an answer.

Here’s the relevant text of the statute that lays out the qualifications to serve as Connecticut’s attorney general:

…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….Conn.Gen.Stat. Section 3-124.

Pretty straight forward, in order to serve as attorney general a person must be an attorney with at least ten years’ active practice.

According to the Judicial Branch website, Ms. Bysiewicz was admitted to practice law in Connecticut on November 21, 1986. If it weren’t for the words “active practice at the bar of this state” I wouldn’t be writing this post.

VoteSmart.org lists Ms. Bysiewicz’s professional experience as follows:

Attorney, Aetna Insurance Company, 1992-1994
Attorney, Robinson and Cole, 1988-1992
Attorney, White and Case Law Firm

If my math is right that’s 6 years active practice (Robinson and Cole and Aetna) at the Connecticut bar.

Here’s what Ms. Bysiewicz’s biography on the Secretary of State’s Website reads about her time at White and Case in New York City:

A graduate of Yale College and Duke University School of Law, she practiced corporate and international law at White and Case in New York City.

It’s possible the work Ms. Bysiewicz did at White and Case could qualify as practice at the Connecticut bar – she was licensed at the time.  However, given that she practiced international law in New York city it’s possible that her years at White and Case would not count as “active practice at the bar of this state”.

We know that Ms. Bysiewicz served as a State-Representative from 1993 to 1998.  It’s not clear from either her biography on her website or from Project Vote Smart that Ms. Bysiewicz was engaged in the “active practice” of law during these years. Serving in the legislature doesn’t qualify as the active practice of law at the Connecticut bar. It’s certainly possible she was working as a lawyer in private practice while she was serving but also possible she wasn’t.

Assuming that Ms. Bysiewicz’s time at White and Case counts as the active practice of law at the Connecticut bar that would mean she had accrued 8 years active practice by the time she left Aetna in 1994.  If not, then she would have had 6 years in active practice.

Either way, if Ms. Bysiewicz was not engaged in the active practice of law after she left Aetna and prior to her becoming Secretary of State she may not be legally qualified to be attorney general in large part because of the statute that defines the role of Secretary of State which reads in relevant part as follows:

The Secretary shall keep all the public records and documents and record all acts, orders, grants and resolutions of the General Assembly, including all resolutions of appointment and resolutions directing orders to be drawn on the Treasurer, and give true copies thereof when required. The Secretary shall keep the records and files of the Superior Court previous to May, 1798, and the original books and papers of the late Connecticut Land Company; provided the Secretary may turn over any such records, documents or papers to the State Library in accordance with the provisions of section 11-4c. The Secretary may give certified copies of any entries in such records, files, books or other papers and of the files and records of said Superior Court and of the Supreme Court, remaining in the office, which copies shall be legal evidence. The Secretary shall be the keeper of the seal of the state, which shall not be altered, and shall affix the same to acts, laws, orders, commissions, instruments and certificates, when requested or required by law. In accordance with established procedures, the Secretary may enter into such contractual agreements as may be necessary for the discharge of the Secretary’s duties. The Secretary shall receive an annual salary of one hundred ten thousand dollars and shall devote full time to the duties of the office. Conn. Gen. Stat. 3-77.

No matter how one slices it, time served as Secretary of State does not count for being engaged in the active practice of law at the Connecticut bar. There’s no requirement that the Secretary of State be an attorney because it’s not the practice of law. If the Secretary of State was engaged in the active practice of law she would have to be an attorney. Further, the statute requires the Secretary of State to devote full time duties to the office.

Ms. Bysiewicz has served as Secretary of State from 1998 to the present. That means at the very most she’s been engaged in the active practice of law for 12 years (from 1986 when she was licensed to 1998 when she became Secretary of State).

Who knows? I may get to cast my vote for her as Governor after all….or not.

47 thoughts on “Is Susan Bysiewicz Legally Qualified To Serve As Attorney General?

  1. Gideon

    See! I was right!

    However, given that our legislature isn’t a full-time legislature, I suspect that she engaged in “some” practice of law during that time, which would put her over the hump.

  2. Pingback: Depends on what “active” means | a public defender

  3. Ryan Post author

    You were right.

    The words “active practice” are interesting. It seems to me the legislature wants our attorney general to be a(gulp) practicing attorney which makes sense. Attorney General Blumenthal argues cases. I’ve sat in court and seen it myself.

    The statutory annotations do not reference any cases interpreting this statute. Anyhow, I’m off to engage in the active practice of law whatever that means.

  4. connecticut man1

    I believe that the position of SoS provides ample opportunity to practice aspects of State law:

    http://www.ct.gov/sots/cwp/view.asp?a=3176&Q=411272&sotsNav=|&sotsNav_GID=1842

    Not saying it would provide an all encompassing overview of the law. But her previous experiences in private practice coupled with spear heading and managing these State initiatives (for the most part involving election law, I suppose? http://www.cga.ct.gov/2008/sup/title9.htm) makes for many years of active experience in many aspects of the law.

    She is obviously a very smart person, has shown a lot of common sense over the years and is probably over qualified for this job, IMHO. Though, I can’t say I have scanned over any of her private practice experience myself, I am pretty sure that will be looked at as the election cycle unfolds.

  5. Gideon

    There is not a single case on point. I did a LEXIS search. I doubt anyone will seriously challenge this, though if I were Jepsen, I’d look into it for the heck of it.

  6. kane

    I”m sure there’s some loophole, but who knows. makes sense that active practice at the bar would mean just that, she’s actually practicing law in CT (Not in house at a company, and not in state house)….Is Jepsen a subscriber!!

  7. GOP in CT

    Can you please define what “is” means, come on just like Clinton and Obama she’s clearly not qualified for the job. Like most liberal Democrats, aka worthless space-taker-uppers, they will look through their rose colored glasses to see the world for what they think it should be and what the letter and spirit of a law could possibly mean…

  8. fortia

    I don’t think that “active practice” even requires actual work. In other State licensing fields, such as real estate or barber, the act of holding a valid, paid-for license in continuous paid-for-ness constitutes “active” status.

  9. Elle

    Taking a break from engaging in the active practice of law to post this.

    So, wait, if being Secretary of State and/or State Rep qualifies as “active practice,” are all the non-lawyer state legislators engaging in the unauthorized practice of law?

  10. Ryan Post author

    Tune in tomorrow. The argument that the Secretary of State is engaged in the active practice of law doesn’t pass the smell test.

  11. Mike

    It’s especially true when you realize that the Secretary of the State need not be an attorney. That kind of kills the argument that she has been practicing.

  12. Attorney Bob

    Ryan,
    As I’m sure you know, all licensed CT attorneys need to fill out an “Occupational Tax” form. If you aren’t exempt, you have to pay a tax of about 600 dollars or so. There are two exemptions that Susan most likely checked off over the past few years: The first exemption allows persons who have not practiced to claim not to pay the tax… the second, allows attorneys for the state (ie Asst. Atty Generals, Judicial Clerks, Prosecutors) to be exempt from the tax. If she checks the first exemption (for nonactive attorneys) then I would say she might be in trouble here. I’m sure this stuff might be able to be FOIA’d.

    Also, regardless of whether she is in conformity with the letter of the law (I’m referring to the AG qualifications), this seems to dangerously skirt the spirit of the law.

    Finally, who would have standing to challenge this?

  13. Joe

    There’s really now question that she’s qualified. Here’s my reasoning.

    She’s supervising other attorneys in the SOTS office. This is directly analogous to a General Counsel at a Corporation which is always considered active practice. They are admitted and are in active practice as we well know. To Mike’s point – a non-attorney can supervise corporate legal – but that doesn’t mean that an attorney who practices inside isn’t practicing! Another perfect example would be managing partners at law firms who no longer litigate. Clearly in active practice. Could an experienced MBA do the same job? Sure….but there’s no question the attorney is in practice.

    Further, the CGS has the SOTS function at the “attorney” under the long-arm statute, 52-59b. While that is attorney with a small “a” not capital – it still means supervising service of process. Under any other definition, we would consider this the practice of law.

    Being in ‘active’ practice has never been litigation. It means keeping up your license and being available to practice. She’s clearly engaged in the legal world as much as patent attorney who does prosecution – which is fully replaceable by a patent agent.

    This is a silly non-issue….

  14. matt

    The practice book definition of the practice of law (Sec 2-44A) seems pretty generous in the interpretation that it offers — especially since the “person” that an attorney represents or advises may be a corporation or governmental unit, and the “documents” can be “articles of incorporation and other corporate documents, articles of organization and other limited liability company documents, partnership agreements.” On top of that, the practice book definition is open-ended — “includes but is not limited to” the laundry list of items it defines.

    The Judicial branch site lists her current status as “Active” (Juris No. 305389), and gives her date of admission to the bar as 11/21/86.

  15. matt

    Also of note, from Joe Lieberman’s Senate biography:

    Senator Lieberman was born in Stamford, Connecticut, on February 24, 1942, and attended public schools there. He received his bachelor’s degree from Yale College in 1964 and his law degree from Yale Law School in 1967. Senator Lieberman was elected to the Connecticut State Senate in 1970 and served there for ten years, including the last six as Majority Leader. In 1980, he returned to private legal practice for two years, and from 1983 through 1988, he served as Connecticut’s 21st Attorney General. As Attorney General he took on polluters of Connecticut’s environment, went after deadbeat dads by strengthening child support enforcement, and earned a strong reputation as a defender of consumers’ rights.

    I count at most five years of legal practice outside the legislature before becoming AG (1967-1970, “returned to private legal practice for two years”).

  16. matt

    Was Lieberman — who only served five years in private practice before becoming AG — qualified? Governor O’Neill appointed his successor (Clarine Riddle) as Acting AG only nine years after she was admitted to the bar (she was “Acting” for 10 months, and was sworn in as AG two weeks after her tenth anniversary).

  17. streever

    GOP in CT:
    You do yourself a disservice by posting this–you demonstrate a lack of understanding about government or an ideological bias that makes communication with you impossible.

    Which is it? You have no idea how government works or you are so biased that you can’t communicate in an intelligent manner? If it’s the former I’d be happy to explain to you how government works, and if it’s the latter I’ll leave you to stew in your own juices.

    CT Law Blog:
    interesting idea–I think that being a bar certified lawyer probably qualifies as “active” but if Jepsen challenges this we will see.

  18. george

    Attorneys practice, Elected officials serve. It could be debated as to whom the electees serve, but that is a discussion for another day. Bysiewicz supervised at least two banks of attorneys in her capacities as Secretary of State. In theelection division, staff attorneys are charged with offerring legal interpretations of election statutes. and in the writing of many of those statutes: more than qualifying as ‘active service’

  19. Noah

    “No matter how one slices it, time served as Secretary of State does not count for being engaged in the active practice of law at the Connecticut bar.”

    I disagree. I “slice it” like this: The phrase “active practice at the bar of this state” simply means that the person must remain an active member of the State Bar. Other commenters sliced it that way too.

  20. AEM

    It should also be noted that the court rejected the attempted filing of her campaign’s amicus brief.

  21. gerardw

    How does this play out? I mean who is responsible for enforcing the law? Is it the SOTS office responsibility to verify candidates are qualified before allowing on the ballot, or does some party file a court challenge, or what?

  22. CT Ex Pat

    it is the secretary of state who certifies ballot eligibility for AG. Not sure how she recuses herself- I would recommend that as SOS, she request an opinion from the AG. How circular! And a ballot opponent can sue Bys in her official capacity for unlawful certification.

    The Riddle precedent would work if she is close, but she might not be…

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  25. DrHunterSThompson

    that’s silly. what you are saying is that paying a small fee to keep your membership active in the State Bar is an “active” practice of the law?

    come now.

    HST

  26. Ryan Post author

    What does “at the bar of this state” mean? It’s possible that it is referring to the physical barrier in the courtroom that separates the judge from the public. Did the legislature when it enacted the statute intend for the Attorney General to have 10 years active experience in court. I think that’s not only possible but likely.

  27. Eric

    All of this is irrelevant as to the qualification issue. As I have heard that Chris Powell of the Manchester Inquirer has already pointed out, the Connecticut Constitution imposes a sole requirement for an “elector” to hold public office–that he or she be 18 years of age (or 30 in the case of governor and lieutenant governer). Please see Section 10 of the Sixth Article of the Constitution. The Legislature has no power to amend the Constitution and require any higher standard merely by passing a bill.

  28. Ryan Post author

    Oh Eric. The statute was enacted in 1902. The constitutional amendment was passed in 1980. The legislature is presumed to know its statutes at the time it amends the constitution. If the intent of the legislature was to lift the 10 year requirement from the AG statute then they should have repealed the statute at the same time. The fact that they didn’t requires a court to construe the provisions consistently. Further, the AG’s office is a creature of statute. The constitution does not define the role of AG – statutes do. If an 18 year old had 10 years of active practice at the CT Bar, she would be eligible to serve as AG.

    Chris Powell doesn’t know what he’s talking about.

  29. Eric

    Ryan,

    That’s nonsense. Did you read the pertinent parts of the Constitution? Section 10 of Article Sixth states that “Every elector shall be eligible to any office in the state, except in cases provided for in this constitution.” This clause was part of the current Constitution, which was adopted by public referendum in December, 1965, and was amended in 1970 to require the elector be age 21 and then in 1984, to be age 18. Focus on the phrase “except in cases provided for in this constitution.” The only such case is the requirement that the governor and lieutenant governor be at least age 30. The Constitution always trumps inconsistent statutes. No statute, whether existing prior to the adoption of the Constitution or subsequently passed, can amend the Constitution, otherwise it wouldn’t be the … Constitution. Since Section 10 requires only that the office holder be an elector and age 18, the Legislature cannot impose additional qualifications.

    Where do you get this stuff that the AG is a creation of statute? When people refer to the attorney general as one of the constitutional offices, do you think they are using poetic license? See Section 1 of Article Fourth, as amended: “A general election for governor, lieutenant-governor, secretary of the state, treasurer, comptroller and attorney general shall be held on the Tuesday after the first Monday of November, 1974, and quadrennially thereafter.”

    And by the way, the Legislature does not amend the Constitution. It can only propose amendments, which then must be adopted by a majority vote of the electorate. See Article Twelfth.

  30. Eric

    Absolutely. The Connecticut Constitution is very democratic in that regard. Apart from an age requirement, the voters can elect anyone they want for any office. Heck, we have a former nurse serving as comptroller (not that I have any reason to suggest she doesn’t know what she’s doing). In the same vein, you don’t even have to be an attorney to be confirmed as a member of the U.S. Supreme Court, not that I expect that would ever get past the Senate (though I believe some members of the court over the years, though they were attorneys, did not attend law school; howappealing.law.com reports that the last such was Justice Byrnes).

  31. Eric

    I now see that in one of your other postings you noted the bit about not having to be an attorney to sit on the Supreme Court and also asked whether a nonattorneys holding the office of Attorney General would be practicing law without a license. The answer clearly depends on what the individual actually does. It seems reasonable to maintain that at a minimum he or she could not appear as an advocate in court, but it’s possible and common for nonattorneys to supervise attorneys in business and government. I don’t think it would be very tough for a layman in that office to stay on the right side of the practicing-law line, especially with a staff of admitted attorneys to give him or her constant guidance.

  32. Arkie

    Let’s cut through the fog and get to the point:

    1. Susan likely was an active member of the CT bar between her Aetna tenure and her swearing in as SOTS. That would get her to about 12 years, certainly over 10.
    2. The language of the statute is vague as to whether the 10 years’ service need be continuous to the present day, such that I think it unlikely that this standard would be construed so as to exclude her from eligibility.
    3. Joe L. was likely an active member of the CT bar during his legislative tenure so that he would have been eligible per the statute.
    4. I’m curious when the statute was enacted and haven’t the time to research it. Does anyone know?

    The statute, moreover, should be amended to include service in statewide or legislative office or as a FT mayor/first selcectperson and experience which counts, for instance:

    “The Attorney General shall be an elector of this state who for ten years shall have been either an attorney at law of active practice at the bar of this state, a member of a house of the General Assembly, a statewide, elective constititional officer or the Mayor or First Selectperson in the full-time, paid employ of any municipality within the State of Connecticut.”

    Whether or not one supports her, the notion that Susan somehow is not qualified to serve as AG is, to my mind, in the real world, ridiculous.

  33. Chris

    I hope she’s been paying the Lawyers Occupational Tax all these years if indeed she is deemed to have been engaged in the practice of law.

  34. Noble Lister

    i dont know how i discovered your blog as a result of i used to be looking details about politics, but anyway, i had a pleasant time reading it, keep write it

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