by Ryan McKeen
The one thing that surprised me when the Supreme Court ruled from the bench in the Bysiewicz case was that the Court found jurisdiction to decide the matter. I was certain they’d dismiss her case on subject matter jurisdictional grounds. I was wrong.
Earlier this week I received an email from Attorney Daniel J. Klau about jurisdictional issues in Bysiewicz v. DiNardo. Klau has authored a fantastic article that will be published in an upcoming issue of CT Lawyer which is appropriately titled “Desperately Seeking Susan: Ripeness, Intervention, and Aggrievement in Bysiewicz v. DiNardo”.
In the article Klau argues that CT Supreme Court lacked subject matter jurisdiction to hear the appeal by the Republican party and its judgment is void. Klau argues that a case like that of Bysiewicz becomes ripe only after a general election. Essentially, the Republicans lacked standing to bring the appeal because they did not have a direct and immediate interest in Bysiewicz’s personal doubts about her qualifications. The Republicans would have had standing to challenge Bysiewicz’s qualifications if she got the Democratic nomination and won the general election. The article is fantastic and Klau’s analysis is well supported.
Klau’s right, voters should get the first crack to determine who is qualified for Attorney General. Once a person wins election the proper means to challenge her qualifications is through a quo warranto action after she has taken office. At that point, there’s a vested legal interest at stake. Right now, it’s merely speculative that Jepsen will be elected. Courts don’t resolve speculative problems.
The Bysiewicz case is different from Jepsen v. Dean in that Susan Bysiewicz brought the case “as an individual seeking to eliminate doubts about her own personal legal situation”. No one had brought an action to keep Bysiewicz off the ballot. Arguably because no one had standing to do so.
On the issue of Dean v. Jepsen, Klau says Dean’s suit “is an unabashed attempt to use the court system for partisan political purposes”.
Interestingly the cases that spell trouble for Dean all involve Susan Bysiewicz: Wrotnowski v. Bysiewicz, Bysiewicz v. DiNardo and Butts v. Bysiewicz.
All three cases are frequently sited in briefs by both Jepsen’s attorneys and the Attorney General both of whom are seeking to dismiss Dean’s case. You can read the briefs online here. I agree with both briefs.
Wrotnowski was a challenge to Barack Obama’s qualifications to serve as President of the United States. It was a “birther” case. The Supreme Court properly dismissed Wrotnowski’s case (filed prior to the election). Justice Rogers dismissed the complaint because the Secretary of State cannot be ordered to remove a candidate from the ballot for alleged lack of qualifications for office.
Both Jepsen’s and the Attorney General’s brief properly argues that the only means to challenge Jepsen’s qualifications are through a quo warranto action. A quo warranto action can only be brought after a candidate holds the office.
This all makes sense. All George Jepsen is right now is a political party’s nominee for an elected office. There are many parties and many nominees that will appear on the ballot next Tuesday. Dean’s suit essentially attacks a political party’s choice to nominate an individual for office – a political question.
Look for Dean’s suit against Jepsen to be dismissed. The irony is that if Dean were to win on Tuesday her suit against Jepsen would be dismissed because of mootness.
Who said jurisdictional issues aren’t sexy?
UPDATE: Judge May Not Rule on Jurisdictional Issues Before Tuesday
Keep in mind that jurisdiction is a threshold issue. No jurisdiction then no case. Parties cannot consent to jurisdiction.
The merits of this case, if they are ever reached, almost certainly won’t be reached at least at the trial court level until after the election. In the event the court found jurisdiction I can’t imagine this case proceeding any faster than Bysiewicz v. DiNardo given both the amount of discovery that would take place and the legal issues at play. Bysiewicz was filed on February 25th, decided by the trial court on May 5th and ultimately resolved by the Supreme Court on May 18th (roughly 3 months after Bysiewicz initiated the action).
The interesting thing is that two election outcomes could neuter this case. First if Dean wins she’d certainly drop her case. Second, if both Jepsen and Malloy win then in the extremely unlikely event a court would find AG Jepsen unqualified via a quo warranto action after he took office then Malloy would appoint an AG.