Dear Attorney McKeen,
Thank you for the invitation to respond to your comments and questions. While I’ll be the first to admit that this was not how I planned to spend my first few days as a candidate for Attorney General, I believe the question was reasonable given the very vague wording of the statute. I am pleased to have the opportunity to respond. My only regret is that there were several media outlets that ran with a “story” before they had all the facts – before they did the proper research and before they gave me time to respond.
The office of Attorney General is one of the most active and professionally demanding in our state government. Connnecticut’s legal system has been fortunate to benefit from twenty years of outstanding service by one of the nation’s premier Attorneys General, my friend Richard Blumenthal. After two decades of such strong service, we need an Attorney General capable of filling the shoes left by Richard, an Attorney General not just qualified for the office, but ready for its challenging blend of legal practice and large organizational management. I am the only candidate with the experience we need to take on that role starting on Day One.
For over twenty years, I have been honored to actively practice law in Connecticut as a member in good standing of the Connecticut bar. My strong and diverse legal qualifications include 8 years in private practice, and 16 years in public service as an attorney, first as a state legislator and later, as Secretary of the State. There is no legal basis to conclude that “active practice at the bar of this state” excludes those attorneys who are practicing in the public or corporate arenas. To interpret “active practice” to mean only private practice would be a mistake.
Over the years I have made all filings and paid fees consistent with the filings and fees paid by other practicing attorneys in the state, including the client security fund payment and the attorney occupational tax return. I am also registered on the State of CT Judicial web site as an active attorney in the State.
This makes me eligible for the office of Attorney General. Furthermore, please review the definition of the “practice of law” in the Connecticut Practice Book, which governs attorney conduct in the state which demonstrates that, in my service as Secretary of the State, I am clearly practicing law. The relevant section is: Sec. 2-44A(a)(2), which includes as “practice of law”:
Giving advice or counsel to persons concerning or with respect to their legal rights or responsibilities or with regard to any matter involving the application of legal principles to rights, duties, obligations or liabilities.
My daily and active role in counseling businesses, voters, candidates, and elections officials on their rights and duties easily qualifies me as subject to bar discipline for these aspects of my Secretary of the State role. That is to say, I am practicing law when I do this. This is not to suggest that this means only a lawyer can be the Secretary of the State; rather, what it means is that any member of the bar who becomes Secretary of the State will be considered by the bar authorities to be “practicing law” and thus needs to go above and beyond a non-attorney Secretary in terms of adhering to the bar rules in his or her work. This is standard; the bar authorities often impose additional ethical and other obligations on attorneys who are doing things that ordinary citizens also might do.
The subject of this question has become a perfect illustration of a key part of the job of the Attorney General: interpreting the practical application of the law of the State of Connecticut. I view this as an opportunity to preview the comprehensive, measured responses that I will provide the people of Connecticut when serving them as Attorney General and I thank you for that opportunity.
Throughout the campaign, I invite a thorough review of both my qualifications for office, as well as my technical eligibility. I am confident that, upon close examination, the voters of Connecticut will see that I am the best qualified candidate to serve as their next Attorney General.
by Susan Bysiewicz
Secretary of the State of Connecticut
Candidate for Attorney General
Susan,
Thank you for your thoughtful response. This blog is yours for the week.
-Ryan
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Note to readers: There may be some formatting errors in this post. These errors are mine. I am working to correct them.
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Further, thank you for understanding as others haven’t that my question was reasonable and not a personal attack on you.
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I like how this blog has shown that people can ask challenging questions and receive thoughtful responses. I believe that many others would have dismissed the question altogether; the seriousness with which Susan Bysiewicz responded here increases my respect for her.
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Ryan Reply:
January 15th, 2010 at 11:12 pm
Kerri,
Couldn’t agree more. I’m very impressed that Susan Bysiewicz took the time to seriously respond in this forum.
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I believe her willingness to take the time to respond speaks to her credibility and integrity.
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Ryan Reply:
January 16th, 2010 at 10:27 am
I agree.
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Anton Reply:
January 18th, 2010 at 12:48 pm
This post by Ms. Olszewski seems to echo the tenor of many.
In response, I would simply say that responding to a post on this blog does not speak, in any serious way, to Ms. Bysiewicz’s “…credibility and integrity” and, in any case, hardly settles the matter of whether having an active juris number while heading a state agency qualifies one has having been in “active practice.”
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Ryan Reply:
January 18th, 2010 at 3:42 pm
I don’t think it settles anything and there are some problems with her argument namely that the Secretary of State is statutorily not a lawyer for the state.
However, I do appreciate her taking the time to respond.
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Ryan,
I’m curious and I’m sure others are as well. How was this letter delivered to you? Postal mail? E-mail? Fax? What letterhead was it presented on, if any?
Thanks!
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Ryan Reply:
January 16th, 2010 at 2:26 pm
Honestly, I’m sure the correspondence was sent but I have yet to get it. I actually copied this letter off of CT NEWSJUNKIE when a friend alerted me to it on facebook. What likely happened is that the letter was either faxed or couriered to my office. I was out of the office for most of the afternoon yesterday. In fact, I left about 2:30 and did not return the rest of the day. For most of the afternoon I was off grid. Once I got the email on the phone, I asked a family member to borrow her computer because I wanted to post the response as soon as possible which I did. When I returned home, there was a message on my answering machine from Ms. Bysiewicz asking if I had received her letter. That’s why I’m sure she sent it.
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AEM Reply:
January 16th, 2010 at 4:50 pm
Thank you. Also, just to be clear, I wasn’t at all implying that she didn’t actually send it or you didn’t actually receive it. I was more just curious as to in what capacity did she respond to your post and send the letter, since she closes by listing both the title of SOTS and candidate for AG. That is why I was wondering about the letterhead.
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Ryan Reply:
January 18th, 2010 at 1:24 pm
It seems to have been sent via email but I still haven’t received it. It’s possible it got eaten by a spam filter. I don’t know.
Do you think a legislative solution is an option?
AEM Reply:
January 21st, 2010 at 5:12 pm
Legislation is certainly an option to help clarify the statute in question, but as we’ve seen recently, there seems to be constitutional issues in-play. My prediction is that the legislature will actually stay far away from this issue (this year at least).
Have you received the letter yet? I find it hard to believe that a hard copy would not sent. Also, still curious if SB, SOTS sent the letter, or SB, AG candidate sent the letter?
Ryan Reply:
January 21st, 2010 at 5:18 pm
I have not yet received anything either via email or letter. Check out the front page of CT Newsjunkie.
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SOTS (If you even read this),
Well done, but I think in your comments published in the Courant on the question of whether you qualify miss the point somewhat. It isn’t that you’re not qualified because you worked in the public sector, but whether that work can be categorized as “active practice” before the bar of this State (whatever that means). You mention that if the requirement were private practice, AG Blumenthal wouldn’t qualify and you’d be right. But that’s not the requirement, as initially reported by Ryan, although it may have been the bastardized version distributed in the press.
So the AG would qualify, regardless of his 4 years as US Attorney, because that is the active practice of law.
In the end, I think you are qualified, simply because there is no definition of active practice and you are a member of the bar in good standing, but kudos for recognizing that it is a legitimate question and for taking the time to respond.
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Gideon Reply:
January 16th, 2010 at 1:19 pm
Maybe I should have read your comments more closely, for you repeat the same here. Again, I think it’s irrelevant that someone was in the “public sector” (like, say, I don’t know, a public defender) or in the private sector, like Ryan. It’s whether the job they performed qualifies as the active practice of law, assuming that phrase can be accurately and adequately defined to include representation of clients.
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I think her response was excellent and Ryan, your handling of it was perfect.
The only portion of Susan’s response that I would “add” to was the importance of the SOTS in the long arm statute. It isn’t just businesses and voters.
To Gideon’s reply, I think there are some distinctions that would remain obvious. For instance, suppose someone decides to leave the practice of law to become a painter, an artist, a computer programmer…..etc. There are many professions (I’d argue most) that would make this a not difficult call. But, when one is in the public sector writing laws, voting on laws, supervising attorneys, etc., this should be considered active practice.
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Gideon Reply:
January 17th, 2010 at 12:19 pm
I’m not sure I agree with you on the first two, Joe. Legislators write laws and vote on laws and many of them aren’t lawyers. Are they all now engaged in the “active practice of law before the bar of the State”? I think not.
I’m not entirely certain what all the duties of the SOTS entail, but if she does indeed supervise other lawyers, then an argument can be made that she is in “active practice”.
Again, in the end, I think she’ll be fine (both in the answer to this question and as AG).
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Ryan Reply:
January 17th, 2010 at 12:21 pm
I think that Gideon maybe ultimately right in the sense that the vagueness of the statute ultimately helps Ms. Bysiewicz. Of course claiming that she was engaged in the active practice of law may also prove to be a risky argument for her because it opens her up to a whole series of very difficult ethical questions for her.
Seeking a declaratory judgment or being sued might ultimately prove difficult for her as well. The rules of discovery allow for a very intense factual inquiry into her time as Secretary of State. A trial on this issue would likely go on for several weeks.
Like Colin McEnroe, I have no desire to add to Ms. Bysiewicz’s political problems. Nor will I lead the charge against her. I think she will make a good Attorney General if she gets into office.
However, to the extent that the legal blogosphere can add to the discussion of this issue, I think it’s a net positive for the State. Connecticut has a number of excellent legal blogs that can raise and debate these issues in a way that traditional media can’t.
If anything, my respect for Ms. Bysiewicz has increased as a result of this situation. She took the time to respond in this forum. She could have attacked me. She could have dismissed the question but she did neither. She could have responded with an editorial to the Courant but she choose this forum. Good lawyers don’t run from tough questions or tough cases and she didn’t.
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AMENDMENTS TO THE CONSTITUTION
OF THE STATE OF CONNECTICUT
ARTICLE XV.
SEC. 1. Section 1 of article two of the amendments to the constitution is amended to read as follows: The senate shall consist of not less than thirty and not more than fifty members, each of whom shall have attained the age of eighteen years and be an elector residing in the senatorial district from which he is elected. Each senatorial district shall be contiguous as to territory and shall elect no more than one senator.
SEC. 2. Section 2 of article two of the amendments to the constitution is amended to read as follows: The house of representatives shall consist of not less than one hundred twenty-five and not more than two hundred twenty-five members, each of whom shall have attained the age of eighteen years and be an elector residing in the assembly district from which he is elected. Each assembly district shall be contiguous as to territory and shall elect no more than one representative. For the purpose of forming assembly districts no town shall be divided except for the purpose of forming assembly districts wholly within the town.
SEC. 3. Section 3 of article two of the amendments to the constitution is amended to read as follows: Every elector who has attained the age of eighteen years shall be eligible to any office in the state, but no person who has not attained the age of eighteen shall be eligible therefor, except in cases provided for in this constitution.
Adopted November 26, 1980.
Looks like the restictions imposed were made MOOT on 11/26/1980
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Ryan Reply:
January 17th, 2010 at 3:12 pm
Are you suggesting that the attorney general of Connecticut does not have to be an attorney?
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Gideon Reply:
January 17th, 2010 at 4:24 pm
*snicker*
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That’s exactly what the 15th amendment says.There is no requirement that Judges,all the way up to Supreme court judges,be attorneys so I can’t figure out what gideon is snickering about.
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Gideon Reply:
January 17th, 2010 at 9:33 pm
No requirement that judges be attorneys?
Okaaaay.
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matt Reply:
January 21st, 2010 at 11:52 pm
Art. 6 Sec. 10 of the Constitution doesn’t specify only elected offices, does it?
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by the way,
I don’t think the AG is required to be a General either.It’s a Title not a Job discription.
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I do want to sincerly thank the owner of this blog for proving beyond any doubt that at least in this state the bulk of our Press Corp has learned absolutely nothing since the WMD fiasco.They will still print conjecture,rumor or even a simple question posed, as the author did here, and treat it as fact if it makes good copy.Damn the truth.
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matt Reply:
January 18th, 2010 at 11:19 am
Why should the be responsible for the press corps? If actual practicing attorneys don’t have an even passing familiarity with the state constitution (and snicker to themselves when others actually make a citation from it), how can we expect the press corps to do any better?
The press isn’t the rot at the center — it doesn’t seem like there’s an intellectual field where the professionals *don’t* pass along gossip without checking it themselves. Journalists, lawyers, mortgage brokers, hedge fund traders — we’re living in a culture in decline, ctkeith.
*snicker*
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Ryan Reply:
January 18th, 2010 at 11:29 am
Susan doesn’t even argue that the statute is unconstitutional. Gideon did more than *snicker* he wrote a post on the issue:
http://apublicdefender.com/2010/01/17/is-the-attorney-general-statute-unconstitutional/
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ctkeith Reply:
January 18th, 2010 at 4:47 pm
The arrogance of Journalists may only be exceeded by the arrogance of Lawyers.
I assure all the lawyers here that when “we the People” speak through an election whomever we pick to be our AG is automatically upon election an officer of the court and can practice law in front of OUR courts.
Ryan Reply:
January 18th, 2010 at 5:06 pm
Just because people don’t agree with you doesn’t make them arrogant. If you want to discuss the law that’s fine but keep it at that.
Pingback: Blawg Review #247 | a public defender
Like some of you, I have done a bit of my own research. In state service, one can only practice law if the job description specifically requires a law degree and membership in the CT bar. There is only one elected official that requires a legal background and that is the Office of the AG.
In my opinion, it is unfortunate, but if we look at the background that Susan herself identifies for us, it is clear she does not have the required 10 years of active practice. Let me be clear – being a legislator is not active practice of law (hence no requirement) and being the SOS is not active practice of law, in fact it is really just an administrative position (hence no requirement).
I suppose the logic for this can be found in the statutes that create the Office of the AG and explain that it is that office that provides legal services for the state agencies, like the SOS. The AG’s office is the State’s law firm.
Question, can she jump back into the Governors race?
HST
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Ryan, I’m fascinated by the constitutional angle here… so I’m going to suggest something that I’ve tossed around on a few other blogs…
I noticed that you graduated from WNEC in 2005. Why not run for Attorney General!?
Here’s the rub…
Susan herself would either have to either certify you and put you on the ballot or not. Because you have been a member of the bar for less than 10 years (I would note that from your firm bio you seem unquestionably “active”), if SB puts you on the ballot, then she basically acknowledges that the statutory requirements for Attorney General are unconstitutional, in which case a UConn freshman could run for Attorney General (assuming they’re over 18 years old). If she DOESN’T put you on the ballot, it gives you standing to challenge the statute in our courts, and (eventually) gives the Supreme Court the opportunity to review the statute and possibly interpret its terms.
McKEEN for Attorney General!
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Ryan Reply:
January 18th, 2010 at 3:53 pm
I think Gideon puts the nail in the coffin the constitutional issue:
Statutes cannot override the Constitution, but they can be interpreted to be consistent with the Constitution by interpreting what the Constitution actually says.
Which in this case is that a non-lawyer cannot be AG.
http://apublicdefender.com/2010/01/17/is-the-attorney-general-statute-unconstitutional/comment-page-1/#comment-53174
Susan’s response in this blog was carefully crafted and probably well researched. It’s worth noting that she didn’t advance this argument at all. Probably because she knows it’s a loser.
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matt Reply:
January 18th, 2010 at 4:31 pm
The constitution pretty clearly says that limits on qualifications must be contained in the constitution itself. (“Every elector shall be eligible to any office in the state, except in cases provided for in this constitution.“)
The constitution does give additional limits for four offices (Gov, Lt. Gov, Senator, and Representative) — and explicitly allows the legislature to set additional requirements for the (appointed) Chief State’s Attorney — so I’d be interested in hearing why this statutory requirement should be recognized as being “what the constitution actually says.” It seems to me that the framers of the 1965 version went pretty far out of their way to not say that, and to prevent the legislature from saying it either.
Though the argument would certainly be a losing one for Bysiewicz politically.
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Ryan Reply:
January 18th, 2010 at 4:52 pm
If you really wanted to strictly interpret the Constitution then you would have to take into account that the Constitution uses the word “attorney”. For purposes of this discussion, an attorney is a person admitted to the Connecticut bar. You can’t get around that.
matt Reply:
January 18th, 2010 at 5:44 pm
The office is called the “attorney general,” but there’s no definition of the office or its qualifications in the Constitution. If we have to rely on statutory definitions, then the Secretary’s definition seems to point to the long-arm statute (which your reader Joe @11 pointed out here:
Joe’s disclaimer was that the term “attorney” was not capitalized in the statute — but the term is also not capitalized in the Constitution (even in the title of “attorney general.”) Looking in the statutes for definitions of active practice I found chapter 876 (here), which:
- Designates the judges of the Superior Court as the rule-making body for who may be admitted as an attorney (the practice book definition, which is still somewhat ambiguous, is their handiwork)
- Defines four types of attorneys — active, inactive, suspended, and disbarred
- States that “Each attorney-at-law admitted to practice within the state, while in good standing, shall be a commissioner of the Superior Court and, in such capacity, may, within the state, sign writs and subpoenas, take recognizances, administer oaths and take depositions and acknowledgments of deeds”
This last bit (again, this is all a first read for me) is interesting, because the only oath the Secretary of State has the power to administer (per Chapter 33) by virtue of her office is the oath of notary. But Bysiewicz seems to administer oaths all the time.
EmGee Reply:
January 20th, 2010 at 8:18 pm
There’s no definition of or description of the office of attorney general in our constitution because AG is not a common law office. It’s strictly a creature of statute and its powers are limited to those granted by statute. Much to Blumenthal’s chagrin, the CT Supreme Court ruled against his argument that his office had common law authority that extended beyond the authority specifically granted to it by the legislature. So the office of AG simply can’t be looked at in the same way as those offices that are specifically identified in our constitution.
Ryan Reply:
January 22nd, 2010 at 10:28 am
EmGee – Brilliant!
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Gideon Reply:
January 22nd, 2010 at 5:57 pm
I disagree. The Constitutional specifically says that anyone over the age of 18 can hold any office. So that must be true, because the Constitution is a 3,500 page document that is explicit on every single point of law and governance in the history of the world. Ever.
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Attorney as in “attorney in fact” not attorney at law. Plenty of non-lawyers are registered agents for service.
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You might want to consider how statutes effect other items in the constitution such as Article 18.
Sec. 18 a. The amount of general budget expenditures authorized for any fiscal year shall not exceed the estimated amount of revenue for such fiscal year.
In fact there are statutes and budgetary practices in effect that don’t meet the test of a strict constitutional reading of Section 18 subsections A B or C.
Good Luck with appointing 60s icon Pigasus as AG based on a strict constructionist reading.
http://wilsonsalmanac.blogspot.com/2008/08/nomination-of-pigasus.html
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matt Reply:
January 19th, 2010 at 12:27 am
I checked — Pigasus is not an elector in Connecticut.
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Can we go back a minute to Ms. Bysiewicz’s response to your earlier blog? She claims that she actively practices law as the SOTS because: “My daily and active role in counseling businesses, voters, candidates, and elections officials on their rights and duties easily qualifies me as subject to bar discipline for these aspects of my Secretary of the State role. That is to say, I am practicing law when I do this.”
I was City and Town Clerk of a very large Connecticut City for several years. I reported to the SOTS office. I performed the above duties as well on a daily basis, only on a local level. I am not an attorney. I knew of few City and Town Clerks who were attorneys, during my term of elected office. The official who now holds this job in my community is not an attorney.
The readers of this blog are mostly attorneys and I am sure you have all worked on some level with City and Town Clerks. We are very knowledgable about the CT statutes, but that does not make us praticing attorneys.
Ms. Bysiewicz’s explanation is not quite as compelling as it should be.
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Ryan Reply:
January 20th, 2010 at 5:09 pm
At best, it is a very nuanced argument.
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Anton Reply:
January 21st, 2010 at 10:04 am
Yes, and an accurate synonym for “nuanced” in this context would be…?
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DrHunterSThompson Reply:
January 21st, 2010 at 11:57 am
“weak”
It’s reasonable to argue that ‘active’ bar membership is the equivalent of ‘active practice at the bar of this state’ for purposes of the statute.
I disagree, however, with the candidate’s claim that as Sec’y of State she is practicing law. If that is true, then she would have very different obligations to the public than a non-lawyer Sec’y of State, and might be disabled from carrying out some of the duties of the office because of higher ethical obligations or attorney-client privilege.
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By Bysiewicz’s rationale, is any non-attorney Secretary of State engaging in the unlicensed practice of law? His or her duties would fall withing the definition of “practicing law,” no?
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