by Ryan McKeen
It’s now being widely reported that Susan Bysiewicz will seek a declaratory judgment on her candidacy for attorney general.
This is just my guess. I may or may not be more accurate than the weatherman was last week. Here’s what I think she’ll do:
1. Hire Attorney Wesley Horton to represent her. Horton was quoted in the February 10th edition of the CT Law Tribune as saying he does not think the Connecticut Attorney General Statute is constitutionally valid.
The same article quotes Bysiewicz as saying, “I agree with Horton”.
Horton’s track record speaks for itself. Having him on her side would certainly be a net plus for her candidacy.
Bringing an action is a high stakes game she can’t afford to lose.
2. Bysiewicz brings a declaratory action solely on the issue of whether or not the statute is constitutional. If she seeks a declaratory ruling as to whether or not her experience qualifies her under the statute, it opens her up to discovery and the potential for a very lengthy trial. Challenging the statute itself is a whole lot less troublesome for her than factually proving her qualifications. It would be done through briefs and appeals, not through testimony.
Whether or not she wins in a court of law is an open question. The issue will be vigorously litigated. If Attorney Horton says it’s unconstitutional, there’s a good chance it is. She may, however, do more damage to her political credibility by bringing the action.
Here’s a quote from the February 1, 2010 edition of the CT Law Tribune:
Bysiewicz said she does not intend to seek a court opinion on the eligibility matter.
“This is not so much a legal question as a political question,” she said.
So I guess she was against it before she was for it… No matter what she chooses to file, or who files it on her behalf, I think she’s already looked at her cards and will tell the dealer she’s going all in.
Does she really fear leaving the government teat this badly?
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It appears she’s hired Attorney Horton. http://blogs.courant.com/capitol_watch/2010/02/susan-bysiewicz-staying-in-the.html
One prediction down. One to go. And hey, I’m already more right than the weathermen were last week.
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“If Attorney Horton says it’s unconstitutional there’s a good chance it is.”
Did Wes Horton become a Connecticut Supreme Court Justice and I missed it?
C’mon Ryan, you’re smarter than this. Wes Horton may be a constitutional scholar, but right now he’s a lawyer who’s been retained by Sue to represent her interests (I assume). It is in her interest to have this statute declared unconstitutional, ergo her lawyer and advocate would naturally say so when asked. Now that it’s clear he’s representing her, saying that Wes Horton is authoritative on this issue is like saying that Johnny Cochrane was authoritative on the subject of O.J. Simpson’s guilt or innocence.
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Ryan Reply:
February 18th, 2010 at 1:04 am
Look no further than the recent Branford takings cases to see just how much weight he pulls with the court. I think Blumenthal is correct. But would it shock me if the Supreme Court disagreed with Blumenthal? No.
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Blumenthal’s office has a poor record of interpreting its own constitutional and statutory authority. Barnes v. Blumenthal was a stinging and humiliating rebuke to Blumenthal in this regard.
The CT Supreme Court has zero compunctions about putting Blumenthal in his place on such matters.
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Ryan Reply:
February 18th, 2010 at 8:11 am
Here’s the link to Barnes: http://scholar.google.com/scholar_case?case=7892392950015688596&q=blumenthal+common+law+authority+attorney+general&hl=en&as_sdt=8004
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Our Supreme Court also rarely finds a statute to be unconstitutional. The most notable exception to that generalization is Kerrigan v. Commissioner of Public Health when they struck down the civil union statute.
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So…if Bysiewicz prevails, does the decision damage Blumenthal’s credibility and therefore his senate candidacy?
Perhaps the Democratic party would be wise to file suit and establish her credentials. If the statute is constitutional, the question still remains how a court would interpret “active” service.
Meanwhile, we await the results of the State Hatch Act questions about the email contact lists from SOTS that SEEC referred to the state auditors, if I understand correctly.
One aspect of the AG role in CT that has arisen in the past is an apparent potential for conflict of interest when the AG is both counsel to state officials and defender of constitutionality of a statute that affects one of them. (Or — if for a headspinning moment we clarify that it doesn’t affect the SOTS, it affects the candidate SB — then how about the dual roles of counsel to SOTS and investigator of the propriety of use of state time for creation of mailing lists that ultimately went to the state official’s campaign for political use. Perhaps all is above board and the list has tremendous official utility, but if not — isn’t the AG in a conflict of interest to have to handle both?
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Can members of the tax paying public interevene in the case?
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