Three!!!

What a year.   This is the annual post, where in the words of Colin McEnroe, I congratulate my blog for staying upright for another year:

For instance, after posting eight times in the whole month, McKeen went dark from a Dec. 23 post congratulating his own blawg for staying upright for two years to a couple of short, interesting posts on Jan. 4 and 6. He squibbed out a Jan. 11 post that consisted of a five-word quote from Ben Franklin.

I launched this blog on Christmas Eve in 2007. This is my 574th post.  In 2010, I wrote 190 posts. This site has been viewed several hundred thousand times by people from all over the world since I first hit post. In so many ways,  this site has grown in ways that have exceeded my wildest expectations when I decided to create it.

Thank you for reading. Thank you for joining me on my journey through Connecticut law. I hope you enjoy this site as much as I do.

Merry Christmas and Happy New Year.

And in case you were wondering, there’s no doubt that Susan Bysiewicz is qualified to run for U.S. Senate in 2012.

When the trial court handed down it’s opinion ruling in favor of Bysiewicz a commenter wrote “I know where not to look for analysis of CT law – this website”.  Ouch.

On Friday, the Connecticut Supreme Court handed down its opinion in Bysiewicz v. DiNardo. Please excuse me while I boast a little.  Despite being the person to initially raise the question of her eligibility I wasn’t worthy of so much of footnote from either the trial court or the Supreme Court.

The best I can do is to give myself credit on my own blog!

Justice Norcott writes:

“We conclude, therefore, … the phrase ‘attorney at law of at least ten years’ active practice at the bar of this state’ means an attorney with at least some experience litigating cases in court”.

A link to the decision can be found at CT News Junkie.

In my April 3rd post “Why Connecticut’s Attorney General Must Have Ten Years Litigation Experience”:

Much of the debate in recent months has focused on the words “active practice,” but that may miss the point or at least part of the point.

Perhaps the more critical words are “at the bar of this state.”

If all the legislature wanted was for the Attorney General to maintain a law license for 10 years, there would have been no need for them to add the phrase “at the bar.” Those words mean the legislature wanted something more. The most logical reading is that the legislature wanted someone who appears in court — which makes sense. The Attorney General is a litigator.

When I wrote that I had a number of lawyers tell me I was nuts.  My argument to them was to read the statute.

As Gideon and others point out: Justice Palmer and Justice Bishop doesn’t agree with me or the majority that the statute requires the AG to have litigation experience.

Though I’ll point out that the first reason cited by the concurring opinion as to why Bysiewicz was unqualified was that she lacked clients. Here’s my February 2nd post on the subject “You Need Clients To Actively Practice Law”.

If you’re looking for me, I’ll be “at the bar” and I won’t let the concurring opinion dampen my spirits.

….she lived anywhere but Connecticut or perhaps Maryland.

If Susan Bysiewicz grew up in Wisconsin and had the same professional experience she’s had in Connecticut – she’d be eligible to run for the Office of Attorney General.  The same would hold true if her driver’s license was issued by the State of Colorado or Florida or Texas or Massachusetts or anywhere except Maryland.

Looking at a recent OLR report, Connecticut has arguably the most stringent qualifications for 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.

In the next few weeks, Connecticut’s airwaves are going to be filled with messages that Connecticut is bad for business.  I’m not holding my breath for any ad to claim that Connecticut is bad for lawyers.

Standing…standing…standing.

Bysiewicz lawyers have filed a motion to open evidence to allow Nancy DiNardo to testify on the limited issue of uncertainty in the Democratic Primary regarding Bysiewicz’s eligibility.

Her lawyers have informed the Court that testimony will last no more than 15 or 20 minutes.

The reason for this is to show that Bysiewicz has standing to bring this action. If she lacks standing, her case would be dismissed.

I expect the motion will be granted. The only person it would prejudice is Bysiewicz herself by delaying the proceedings.

For this post, I’m going to assume that the statute specifying the qualifications for Attorney General is constitutional. Maybe it is and maybe it isn’t.  That question will have to be decided by the Connecticut Supreme Court.

Here’s the relevant text of the statute:

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. Sec. 3-124

Much of the debate in recent months has focused on the words “active practice,” but that may miss the point or at least part of the point.

Perhaps the more critical words are “at the bar of this state.”

General principles of statutory interpretation require every word in a statute be given meaning where possible.  “At the bar” could be referring to someone licensed to practice law or it could be referring to the physical bar in the courtroom.

The statute uses the phrase “attorney at law.” To be an attorney at law in Connecticut, one must be licensed to practice law.

Bysiewicz is making the argument that “active practice” simply means licensed to practice law.

If all the legislature wanted was for the Attorney General to maintain a law license for 10 years, there would have been no need for them to add the phrase “at the bar.” Those words mean the legislature wanted something more. The most logical reading is that the legislature wanted someone who appears in court — which makes sense. The Attorney General is a litigator. I’ve been in court and seen Attorney General Blumenthal argue a case.

It will be interesting to see the outcome of Bysiewicz v. DiNardo. Lots of things can happen, but it wouldn’t surprise this blogger if the outcome of the case hinges on the interpretation of the words “at the bar” and not the phrase “active practice.”

It is illogical to read three different clauses in the statute to all mean “licensed to practice”.

If the court reads the statute the same way that I do (which isn’t a given), then Ms. Bysiewicz’s fate hinges on whether or not the statute is unconstitutional.

-The majority (63%) of persons incarcerated in Connecticut are doing time for non-violent offenses. This amounts to 11,412 inmates.

-Connecticut now has uniform procedures for land use appeals. Having brought appeals in different courts, this is a very welcome development.  Procedures used to vary from court to court, which was confusing.

-Judging by the Judicial Department’s website, it appears that Susan Bysiewicz is heading for a hearing on April 20th. The site lists court dates on April 6th (for a hearing) and April 14th and 15th for pretrial conferences.  This means it’s possible for the trial court to rule before the State Democratic convention on May 21st. Of course, this blogger predicts an appeal no matter what the trial court does. In that case, there’s no way the Supreme Court resolves the matter prior to the convention.

-Plenty of movement on CT’s Appellate bench.

-For all you Supreme Court bobblehead fans, head down to Yale.

A hearing is scheduled for 2:00 on Friday, March 5th in Bysiewicz v. DiNardo.

The judicial branch does not show appearances for either Nancy DiNardo or the Connecticut Democrats. Both parties have until Friday to file an appearance or risk being defaulted. Defendants commonly wait until the last minute to file appearances in a case, so I wouldn’t read anything into the fact that either DiNardo or the Dems have not yet filed an appearance.

The Attorney General’s office has filed an appearance on behalf of the Connecticut Secretary of the State.

It’s unclear from the judicial branch website what issues will be addressed at the hearing. Sometimes, in cases of public interest such as this one, updates and information are posted under latest news and updates.

A declaratory judgment is an extraordinary remedy in Connecticut. Ordinarily Connecticut courts deal with events that have already happened. From crimes to car accidents….courts resolve conflicts for events that have already occurred or are ongoing. Courts usually hear cases where an actual loss has occurred.

On the other hand, a declaratory judgment is brought by a plaintiff who is unsure of his rights.

Under Connecticut law a party can bring an action for declaratory judgment when:

(1) The party seeking the declaratory judgment has an interest, legal or equitable, by reason of danger of loss or of uncertainty as to the party’s rights or other jural relations;

(2) There is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement between the parties; and

(3) In the event that there is another form of proceeding that can provide the party seeking the declaratory judgment immediate redress, the court is of the opinion that such party should be allowed to proceed with the claim for declaratory judgment despite the existence of such alternate procedure. Connecticut Practice Book Section 17-55.

Bysiewicz v. DiNardo is a prime example of a controversy that is ripe for a declaratory action as uncertainty abounds. When the case is resolved for better or worse, Ms. Bysiewicz, the CT Democratic Party, and the Secretary of State’s Office will have answers in place of uncertainty and that’s good for all involved.

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.

Kevin Rennie is reporting that Susan Bysiewicz is going to seek a declaratory judgment on the issue as to whether or not she is qualified to be attorney general.

If she  opts to challenge the constitutionality of the Attorney General statute she’ll find herself squaring off against Attorney General Blumenthal.

Connecticut Practice Book Section 17-56b requires the Attorney General to be given reasonable notice or be  a party to any declaratory judgment challenging the validity of a state statute.

If the statute is challenged it’s the Attorney General’s job to defend it.

Break out the popcorn.  Bysiewicz v. Blumenthal may be coming to a superior court near you.