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DOCKET NO. SC18612 : SUPREME COURT
SUSAN BYSIEWICZ : STATE OF CONNECTICUT
V.
NANCY DINARDO, ET AL. : MAY 18, 2010
B E F O R E:
THE HONORABLE FLEMMING L. NORCOTT, JR., JUSTICETHE HONORABLE JOETTE KATZ, JUSTICETHE HONORABLE RICHARD N. PALMER, JUSTICETHE HONORABLE CHRISTINE S. VERTEFEUILLE, JUSTICETHE HONORABLE PETER T. ZARELLA, JUSTICETHE HONORABLE C. IAN McLACHLAN, JUSTICETHE HONORABLE THOMAS A. BISHOP, APPELLATE COURT JUDGE
A P P E A R A N C E S:
Representing the Appellant(Intervening Defendant):
ELIOT GERSTEN, ESQUIREGersten, Clifford & Rome214 Main StreetHartford, CT 06106
Representing the Appellee (Defendant):
GREGORY T. DAURIA, ESQUIRESenior Appellate CounselOffice of the Attorney General55 Elm StreetHartford, CT 06106
Representing the Appellee (Plaintiff) Susan Bysiewicz:
WESLEY W. HORTON, ESQUIREDANIEL J. KRISCH, ESQUIRE
90 Gillett StreetHartford, CT 06105
Transcribed by: Kimberly SilvermanCourt Recording Monitor
101 Lafayette StreetHartford, CT 06106
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JUSTICE NORCOTT: The matter for the afternoon is
Bysiewicz v. Dinardo. Before we begin, I want to welcome Judge
Bishop to the bench. Hes helping fill up our en banc panel. We
welcome and thank him. Counsel?
MR. GERSTEN: Good afternoon. My name is Eliot
Gersten. John Van Lenten and I represent the interests of the
Republican Party of Connecticut, which is an intervening defendant
in this case. We are the named appellant.
JUSTICE NORCOTT: Counsel, do you wish to reserve
any time for rebuttal?
MR. GERSTEN: Yes, please. By prior arrangements,
we have yielded four minutes of time to the State of Connecticut
and Id like to reserve four minutes of rebuttal -- five minutes
for rebuttal time, please.
Briefly stated, the issue on this appeal is on the
facts at trial whether the Court properly determined it was
appropriate to entertain a challenge to 113-year-old statute that
established minimal qualifications a professional needed to have
in order to serve as an attorney general upon election.
In engaging in a decision that said that the
plaintiff does have those qualifications, the trial court
basically re-wrote that statute. Section number 3-124 provides,
which is the statute in question, that the attorney general shall
be an elector of the state and an attorney at law of at least ten
years active practice at the bar of this state. I urge the Court
to take a look at that statute and give each of the words meaning
as we are required to do.
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By deter -- by determining that the plaintiff
demonstrated that she provided facts sufficient to satisfy all of
the requirements of the trial court, the trial court opinion and
its analysis failed to give each word a meaning in the statute and
violated a number of counts of construction and, instead, created
a redundancy within the statute on a number of different points.
Most importantly, however, in engaging in that
practice, the trial court has converted the purpose of the statute
that at a minimum, the best interests of this state are best
served by a lawyer with no less than ten years of experience at
the bar and to determining a rational result, frankly, that is not
-- that is lacking in common sense.
It fundamentally comes down to the fact that
anyone with a law degree and an active registration who
tangentially uses their skills and training in performing a
governmental function, and by way of reference, Ill point you out
to someone who qualifies here as a policeman who might have gone
to law school and has a license to practice law but, nonetheless,
hands out traffic tickets, qualifies under the statute pursuant to
this trial courts decision.
In fact, we can go farther: When an NFL referee,
who happens to be a lawyer and there have been some, performed
their functions on the field, they, too, are using their skills
and knowledge as lawyers in performing their function which would
qualify under the terms of this opinion. Its critical to point
out that the secretary of state need not be a lawyer in order to
perform the functions of her job. In this particular situation,
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its undisputed that this particular plaintiff does have a law
degree and it, undisputed that she was an attorney at law.
I think that some of the evidence introduced at
trial questioned whether she was in good standing, however. For
example, there were a number of trial court exhibits and there was
her testimony that indicated that she had indicated -- that she
had not complied with the basic rules of our practice book in
filing forms with the Superior Court indicating where she
practiced law.
In addition, there were a number of forms provided
at evidence and at her testimony in which in six years, under
oath, she represented and said, I do not practice law as an
occupation. Each of these elements of her testimony was ignored
by the trial court.
The next part of the statute indicates that there
must be at least ten years, which indicates that this particular
statute requires that the professional must have some experience.
Thats a quantitative analysis not a qualitative analysis, which
will become important once takes -- when one takes a good look at
the opinion.
In a case out of Maryland in which a challenge was
made to the attorney generals requirements which was a
constitutional requirement, the Court went through an analysis at
the appellate level and went through very clearly that this
statute had a purpose -- that provision had a purpose, that what
were looking for is someone who has experience in representing
the interests of the State of Connecticut.
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The next element of this deals with practice and,
frankly, what the trial court did in terms of determining whether
or not the definition of practice and actual practice were
something that were established or new, the trial court went on
and invented new standards instead of following established
standards.
The function of the job that the secretary of
state performed, and she is the plaintiff here, is such that shes
rendering to herself. This Court has, on a number of occasions,
adopted and, basically, affirmed the Rosetta Stone of -- the
language in the CBTcase, and Im presuming this Courts familiar
with it now, but at that point what you said in 1956 is that
functions that are being performed in the practice of law where
the client is fundamentally the institution itself, the
institution and those employees and people and personnel
associated were not practicing law. Therefore, their --
JUSTICE NORCOTT: Is it your contention that -- is
it your argument that her clients are just the institution?
MR. GERSTEN: My first position is that shes not
practicing at all, that she doesnt have a client.
JUSTICE NORCOTT: That she doesnt have a client
at all.
MR. GERSTEN: That she is actually the client of
her office and I think the evidence at trial, Judge Norcott, made
it pretty clear that she receives advice from third parties, as
well as staff attorneys within her office. My secondary position
would be that she has no client and in terms of -- and the trial
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courts decisions saying that the State of Connecticut is her
client leads us so wide open, exactly as the trial court found,
she doesnt have to follow the rules of professional
responsibility when shes dealing with those clients. Shes
immune to it, apparently, or theres no anything that governs her
dealing with the clients, the State of Connecticut.
JUDGE BISHOP: Generically, Mr. Gersten, whats
the difference between a constituent and a client?
MR. GERSTEN: A constituent is someone who is a
citizen of the state, I suppose who votes, and is -- governs many
of the things that -- thats one reason why this trial court did
get one thing right, in her services to constituents. That
doesnt qualify as the practice of law. The difference I would
carve out, as far as a client, would be, you have to have someone
identifiable, that has identifiable interests, and in order to
answer that generically, its -- in my own opinion, Your Honor,
its difficult because a client would have some kind of confidence
when theyre receiving advice.
In this particular circumstance, we have a person
whos sitting in that chair, admittable, as the record and the
evidence showed, giving conflicting pieces of information or
information to conflicting citizens in the course of providing her
advice to people. So shes got no client, by her own definition.
She has none, as the trial court found -- none of the earmarks of
complying with the code of professional responsibility that
governs everyone else who practices law in this state.
Even if we were to go so far and apply the current
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definition of Section 2-44(a), the practice of law is ministering
to the legal needs of another person in applying legal principles
and judgment to the circumstances or objectives of that person.
So, again, I go back to the fact, in the absence of anyone
identifiable, generically or not, its difficult to have someone
say, I can rely on what I was told by the secretary of state.
Most importantly, and where we find the biggest
issue the way the trial court did the analysis, is that in
determining what is the active practice of law, the trial court
basically said, if you do a little bit of it, youre actively
practicing law. And the problem that exists there is that the
trial court called that the qualitative analysis as opposed to a
quantitative analysis.
And we would respectfully submit that in going so
far to do that, that the trial court completely ignored and paid
no attention to the standards that could have been applied here
very easily and those standards that have been pronounced through
this court and other places in terms of the reciprocity statutes,
which basically require that an applicant will have a substantial
or full-time amount of their energy devoted to the occupation of
law.
In this particular circumstance, we have somebody
who admits thats not what she does. She did that on five
occasions in sworn statements between 2005 and 2007 on her average
filing. On her filings were the various regulatory authorities.
This individual is nothing more than a regulator at best in
performing her job. She lists herself as the secretary of state.
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She never held herself out as an attorney during the entire time
period. She was quite clear on the witness stand, I dont tell
anybody Im an attorney.
Now, the problem is the trial court departed from
applying the standard that already existed and in so doing, the
trial court engaged in a rather lengthy and detailed -- and a lot
of effort went into it, but in a way that is so nuanced that it
leaves open to it all sorts of new applications.
I remind this Court, also, that the appropriate
standard exists by application of the Supreme Court decision in
the application of Dodd, our current senators father, 132
Connecticut 237. And in that situation, what this Court reminded
us all is that the purpose is to ensure theres a knowledgeable
background and experience, someone who devoted time and considered
it to be their actual occupation.
In this particular circumstance, the trial court
depended upon some evidence in which this plaintiff said, I
declared some declaratory rulings, and pointed out to two of them.
And Id ask you to scour the record and what youll see there is a
paucity of evidence and even as the trial court described these
so-called declaration rulings, if one looks at the exhibits,
theres exhibits that were entered in the trial. I dont know
what the trial courts referring to because one exhibit referred
to an unsigned memorandum that basically said its dealing with
voting machines.
When we asked the plaintiff if this was a
declaratory ruling issued pursuant to statute, she said,
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absolutely. And then we walked through the definition -- or the
application, rather, of the Uniform Administrative Procedure Act.
She had no idea what we were talking about and she admitted that
shes never looked at it, didnt know what it was, a very basic
element of what constitutes a declaratory ruling, which is the one
thing that she is authorized by statute to do. So we have someone
who not only doesnt hold herself out as a lawyer when shes doing
these things that the trial court found, but she didnt even know
what she was doing when she did em.
In using the quantitative anal -- measure of ten
years, we would submit to the Court that the -- thats the reason
why the statute required a quantitative analysis and not a
qualitative analysis and why there are measures already existing
of performing time, and it should be a full-time basis as opposed
to being, basically, a little bit pregnant. That gets you all the
way there. And thats exactly what this trial court ruling holds.
Our basis goes back to the history and the
creation for the office of the attorney general. When the
secretary of state was an attorney, he could practice law. The
practice of law in 1897 was taken away from the secretary of
states office and it was created, and when the attorney generals
office was created -- and thats where the responsibility of
practiced law came in and thats who the lawyer is for the State
of Connecticut. That statute left the mound of the work to the
State, including the secretary of state, to do things, including
the administration of elections.
And in this particular case against -- again, the
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evidence of such is in an answer to interrogatories that are part
of the record. This plaintiff said under oath, in the
interrogatories, I do not consider the administration of elections
to be part of my claim that Im practicing law. In essence, the
secretary of states office, when the attorney generals office
was created, was, in fact, created to be -- it was intended and
was created to be a client of the attorney general.
For all intent and purposes, for purposes of this
statute, I would submit that the secretary of states office, for
purposes of claiming that the officer there actually practiced
law, was legislatively neutered. Id ask that you also take a
look at the 1934 Connecticut Registry Manual, and most importantly
what the trial court paid incredibly scant attention to is the
scholarly article written by Judge Cohn on the history of the
attorney generals office in which it spells out that this statute
was created to avoid having a political hat put into position and
we wanted to have qualified people to take that job.
The evidence at trial really demonstrated very
little that this plaintiff put on and I would say to you, frankly,
in light of the fact that this plaintiff brought this action and
this plaintiff knew this was her claim that she wanted to prove to
everybody and say, Im a real lawyer, all the evidence that she
marshaled to present that shes been doing this for an extended
period of time is very little. And we pointed -- we tried to
point that out in our briefs.
Finally, in terms of the definitions, we believe
the trial court completely wrote the application of the words, at
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the bar of the state, out of the statute. If one takes a look at
the 1897 statute and takes a look at the dictionaries that were in
place at that time, one would see that at the bar meant being a
trial lawyer, and having that designation and that qualification
meant something, in light of the way that this statute was
intended to accomplish something. It is a minimum requirement
statute.
The legislature, as of 1897, wanted someone who
knew their way around the court system to represent the interests
of the State of Connecticut. Thats why this was written.
Again, I would indicate that the historical definition, besides
the ones we cite in our brief, go back to Judge Cohns article at
81 Connecticut Bar and we also have the judicial history and civil
history of Connecticut, which the trial court looked at for some
reasons but failed to look at for other reasons.
JUSTICE PALMER: Mr. Gersten, it seems to me that
important to Judge Sheldons decision is the fact -- is his
reliance on the belief that the statute, like the statute issue
here, should be given a liberal construction in -- because of the
interest that it implicates. Whats your view about that?
MR. GERSTEN: Im not sure -- Im not sure that
when the trial court used the words liberal construction that it
really means much, because fundamentally you have to give words
that are used in that statute and each word thats used in that
statute, you have to give each one meaning. And I think that when
Judge Sheldon did what he called his verbal construction to set
minimal requirements that, in accomplishing such a purpose, he
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wrote any kind of meaningful requirement out of the statute.
JUSTICE PALMER: Well, do you agree that as a
matter of law that we ought to give the statute of liberal
construction -- I know you disagree that even construed liberally,
the statute gets where Judge Sheldon got, but do you dispute the
fact or the claim that its entitled to -- that the plaintiffs
entitled to a liberal construction of the statute?
MR. GERSTEN: I think -- I think we can dispute
that because its not a eligibility, as compared to other statutes
which have been given a liberal construction, its not an
eligibility-to-run statute.
JUSTICE PALMER: Why is it not --
MR. GERSTEN: Because --
JUSTICE PALMER: -- in effect, anyway?
MR. GERSTEN: Im sorry?
JUSTICE PALMER: In effect, anyway, why is it not?
MR. GERSTEN: Well, I guess, that walks into some
of the issues that have been raised by the Court on its own motion
in terms of the jurisdiction here. Nothing prevents this
plaintiff from running, nothing. In contrast to every one of the
cases that the judge cites, in every other -- all the cases that
the plaintiff relied on, they are all absolute bars to
participating in the electoral process.
And in this particular circumstance, we have an
individual who has testified and, frankly, put all the evidence on
the record, that there is nothing stopping me from doing what I
want to do.
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JUSTICE PALMER: Well, youre -- I mean, I
understand your point. Im not looking at this, at this stage
anyway, from the standpoint of ripeness. Im more interested to
understand your perspective on why this statute is not entitled to
a liberal construct -- or why the plaintiffs not entitled to have
the statute construed liberally because -- I mean, I agree with
you that theres some general language used in the statute.
Theres some specific language used in the
statute, as well, but if it turns out that she doesnt comply with
the statute, she will not be able to run for that office and why
doesnt -- why is that alone not reason to -- and the fact that
the elector would not be allowed to -- you know, would not be in a
position to vote for her, why is that not reason alone to construe
the statute liberally?
MR. GERSTEN: Well, Justice Palmer, Im not sure
that a liberal -- by labeling it liberal construction, we do that
much with it. If what were trying to do is use each one of the
words to its lowest common denominator, that might be what is the
better way to word it as opposed to --
JUSTICE PALMER: Construed is -- construed is
broadly encompassing as reasonably possible given the language.
MR. GERSTEN: Okay.
JUSTICE PALMER: Do you dispute that?
MR. GERSTEN: I dont dispute that we should do
that.
JUSTICE PALMER: Okay.
MR. GERSTEN: As long as we dont depart from the
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legislative purpose in doing that.
JUSTICE PALMER: Okay.
JUSTICE ZARELLA: So what youre saying, it
shouldnt be a liberal construction; it should be a liberal
application, that the statute should be apply -- in instances
where the facts are unclear as to whether or not they -- the
applicant is covered by the construction of the -- the terms of
the statute, you apply it liberally.
MR. GERSTEN: I think that -- I think thats
correct, Justice Zarella. As a matter of fact, part of the
problem is the paucity of facts here to apply it to. And what --
if what were trying to do is to get to the lowest common
denominator between all five or seven of these words that apply
here, the plaintiff still didnt prove that case either.
I mean, the bottom line is, what was the purpose
of the statute and how do you apply it in a way that is so broad
to encompass as many people as possible and not deviate from the
purpose of the statute? And, again, I think that part of the
problem in doing it on a qualitative analysis is such that if you
try to say that the plaintiffs little bit of proof that she
provided to us here shows that shes been doing this throughout
her entire time span as a secretary of the state, then I would say
that it becomes boundless in terms of what applications -- what
words these -- what meaning these words have.
JUDGE BISHOP: Mr. Gersten, is it your view --
take different facts -- take it the fact that the applicant has a
thriving estate planning practice which never sees the inside of a
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courthouse. From your analysis of the statute, would that person
presently be qualified? -- meets all the -- you know, meets the
ten-year requirement?
MR. GERSTEN: I think that that would take the
meaning of the words, at the bar, as it was used in the statute,
and eliminate it. And I think that there is a reading that would
say that that person who had the thriving estate practice, unless
that person participated in court proceedings and thriving -- and,
again, there are many estate lawyers who do, in fact, go to court,
but --
JUDGE BISHOP: But my example, thats not.
MR. GERSTEN: I think that that persons
qualifications under the statute would not satisfy the statute.
JUDGE BISHOP: Why wouldnt it be a liberal
application of the language of the statute to consider that at the
time this statute was enacted, what was prohibited as the
unauthorized practice of law was going to court and not being a
lawyer -- pleading and not being a lawyer? It wasnt until the
thirties that statutes were amended to include within the
prescription, the transactional business.
And, so, why cant you glean from that that back
in 1897, peoples concept of a lawyer was a pleader and someone
who went to court? Why couldnt you then take a liberal
application of the statute and say, well, todays concept of a
lawyer is much broader than that, as was recognized by
legislatures across this country in the thirties? Wouldnt that
be an example of a liberal application of the statute?
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MR. GERSTEN: Yes, Your Honor. It --
JUDGE BISHOP: Im not trying to coerce you into
that answer. Im just trying to learn the answer.
MR. GERSTEN: Youre -- youre not --
JUSTICE PALMER: You dont know Mr. Gersten if you
think he can be that easily coerced.
MR. GERSTEN: I think that an interesting use of
the words, at the bar, at that time period, coincidentally enough,
is an 1897 obituary of Justice Park in which they talk about
Justice Park -- Judge Park, who became a chief judge, had a -- and
coincidentally, its in the same time period the statute was
brought up, where Judge Park entered his judicial -- he had
acquired but a very limited legal practice and probably would
never have obtained a high success at the bar, and they went on to
talk about how he became a great judge or a judge nonetheless.
And I think that in that context, it demonstrates
that what they were thinking of at that time period was someone
who was at court, particularly the way they spoke about him in his
obituary.
In closing -- and again, Im not certain how we
want to divide up the time on the jurisdictional issues that the
Court raised but --
JUSTICE NORCOTT: You wanted to defer some time
to --
MR. GERSTEN: Id be glad to. Id be glad to.
JUSTICE NORCOTT: Well, you can finish your
point --
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MR. GERSTEN: In closing --
JUSTICE NORCOTT: Im gonna be fairly liberal with
the time.
MR. GERSTEN: Thats a liberal application. Thank
you.
In closing, we think that the plaintiff had the
burden. I think its pretty well established the plaintiff had
the burden of having to demonstrate that she had to satisfy all of
these elements. And the most interesting part about this is that
in going through this 96-page opinion, theres all sorts of new
standards that have been applied that make it an exception that
basically eats up the rule and theres no way to determine how
this plaintiff -- this ruling could be applied in the future,
except to allow that officer of the law with a law degree who
hands out traffic tickets to be determined to be practicing law as
often, if not more often, as the secretary of state did here.
JUSTICE PALMER: Mr. Gersten, before you -- I just
have one question, one more question, I guess by way of a
hypothetical. I think I know your answer, but Id like to hear
your rationale behind it if I am correct. Take a person who
engages in eight years of litigation in Connecticut, no dispute
about that, takes a position as a law professor at a law school.
Does that for, you know, however long -- five years, eight years,
ten years -- and then is appointed to the bench for five or eight
years and for some reason decides that he or she wants to run for
attorney general.
Under your interpretation of the statute, no
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matter how liberal we might conclude it should be construed, I
presume that you would say that that person is not eligible. And
if Im wrong, tell me that Im wrong and, you know -- but if Im
right, explain to me why that should be the case.
MR. GERSTEN: Justice Palmer, I think that youre
right, thats how we interpret it. And I think that --
JUSTICE PALMER: Does that makes sense?
MR. GERSTEN: It makes absolute sense because the
fundamental problem with this -- with saying it doesnt make sense
is thats what the legislatures for. And, in fact, in light of
the fact that this particular plaintiff has lots of experience
with our legislature, the answer is not in a courthouse. The
answer is, go change the statute. Just as the evidence
demonstrated and the trial court pointed out, thats what shes
told her constituents when there was something about a statute
that they couldnt deal with. She said, go deal with your
legislature.
So I would say to this plaintiff who is in that
hypothetical, that, you know, its not a good idea, but we think
what you ought to do is go right across the street there and go
deal with your legislators to change the statute because its no
longer serving its purpose, cuz youre a qualified candidate.
Thank you.
MR. D'AURIA: Good afternoon, Justice Norcott.
May it please the Court, Gregory DAuria for the State. Were
here to address only the constitutional issue and on that score, I
think its clear from the constitutional history that no one --
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and from the briefs in this case -- no one, not even the
plaintiff, argues in this case that it was anyones intent in 1970
when the Constitution added the words attorney general to article
4, section 1 -- it was never anyones intention to eliminate the
statutory requirements for attorney general, that it existed for
over 70 years or to make the attorney generals office eligible to
any elector; rather, its the plaintiffs argument, essentially,
that that was a historical accident, that that was the effect of
amended article fourth, section 1, without touching article sixth,
section 10.
The syllogism goes, the AG is now a constitutional
law officer. Youre therefore like any other office in the state
-- Ill put that phrase in quotes -- ergo article sixth, section
10, applies to you. But our state history and our constitutional
history tell us that the AG is not like any other state officer,
not because our office is special in any way for constitutional
purposes, but because three reasons, related reasons: It came
into the Constitution later, obviously; it already existed when it
did, going to the Constitution; and it came with a history of 70
years of consti -- of statutory duties and responsibilities and,
yes, requirements that were not of constitutional derivation.
So that makes it -- that makes that office
different and I think this Court has to construe -- has to look at
the office differently in construing whether there was ever any
intent in 1918 -- 1818, 1965, 1970 or otherwise, to include the
attorney general within an office in the state for article sixth,
section 10, purposes.
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JUDGE BISHOP: Does the Constitution freeze in
place the language of the statute or is the statute post-
constitutional still amenable to amendment?
MR. D'AURIA: Amenable to amendment. Barnes was,
I think, very clear on that for purposes of duties. I dont think
we could contend otherwise for requirements -- statutory
requirements. I think where the plaintiff and the State most
pointedly disagree is that page 36 of the plaintiffs brief takes
the position that the only relevant constitutional history is
article sixth, section 10, and we dont think thats true.
You have to look at the history -- the 1970
history of the attorney general and ask the question, was the
intent in 1970 by the -- of the framers or the people that the
attorney general would be an article sixth, section 10, office
that would be open to all the electors? And when you look at the
limited text, two words were inserted in the constitution in 1970,
attorney general, the limited text and the limited purpose as
articulated by the legislative history.
Its clear that there was a limited intent. The
limited intent was that the office couldnt be legislatively
abolished. But there is no intent to alter or abolish the
statutory requirements, didnt seek to confer new rights on
electors or candidates so that they didnt have to have these
requirements.
And I should point out here, I think the Court
should not be quick to presume for its own purposes that that was
the intent of the framers because its hard to believe that the
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chief legal civil officer of the State could be a non-lawyer; that
is, any elector could be the attorney general with all of the
duties that include appearing in this court representing state
officials and employees, including judicial officials. That
shouldnt be something that this Court should presume lightly.
Now, Mr. Hortons likely theme, as it was in his
brief, when he gets up is gonna say, we should let the voters
choose who will govern them without limitation. The State has no
quarrel with that maxim, no quarrel with James Madison or that
egalitarian concept. But the problem in this case, the vexing
problem, is that limitation always was in our law. It existed for
70 years. If there was a limitation or requirement that the
attorney general be whatever the phrase means, an attorney for ten
years at the bar of this state. So the question is -- and the
voters imposed that requirement.
Ill just finish briefly. Thank you. The voters,
through their representatives, imposed that requirement. So the
question is whether in 1970, the legislature, in proposing the
constitutional amendment -- it was the legislature -- and the
people ratifying it intended, silently, to repeal that statute
that had been in effect for many years. Thats all I have.
Theres one point Id like to make about -- Mr.
Horton and I have had a discussion about something that hell talk
about, perhaps, footnote 17 of his brief, about the 1970 and 1980
amendments that grammatically, sort-of, butchered article sixth,
section 10, by duly imposing an age requirement and grammatically
putting the modifier after -- after the -- after the earlier
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language that existed. We agree with Mr. Horton that -- that the
except clause doesnt modify the but-no-person clause; rather, it
-- that it modifies the every elector clause.
I think when you hear him argue that, though, you
keep -- you should keep in mind that that concession -- or that --
that language, as construed, as we both agree it will, requires
some glance at the intent of the constitutional amendment and it
does some violence to his plain language, you know, go-no-further-
than-the-text argument. With that, Ill sit down.
JUSTICE McLACHLAN: Excuse me, Mr. DAuria --
MR. D'AURIA: Sure. Yes.
JUSTICE McLACHLAN: With the permission of Justice
Norcott, do you have your brief?
MR. D'AURIA: A few.
JUSTICE McLACHLAN: Could you look at page 1 and
footnote 2?
MR. D'AURIA: Yes.
JUSTICE McLACHLAN: The office of the secretary of
the state, particularly, sees no need to take a position on this
issue, meaning the qualifications, because the offices duties in
connection with the election of candidates for attorney general
are purely ministerial in nature. What does that mean? Could --
could the office of the secretary issue a declaratory ruling on
the eligibility of a candidate?
MR. D'AURIA: Well -- no, I think, is the answer
to that question. They dont pass upon the qualifications of
candidates.
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JUSTICE McLACHLAN: So that as I understand the
statute, then, the duty of the secretary, even though the
secretary is empowered to issue regulations, rulings and
instructions, it only has to do with the interpretation
effectuated in the administration of the elections. Correct?
MR. D'AURIA: I think its as easy to say -- Im
pretty sure its as easy to say that 3-124 is not within that
offices jurisdiction.
JUSTICE McLACHLAN: Well, but the question really
is, what is within the offices jurisdiction? Is the function of
the secretary of the state ministerial or is it not ministerial?
Thats the question.
MR. D'AURIA: Well, as to -- as to -- as to the
question of a candidates qualifications, the -- that office takes
the position that it is, in fact, ministerial.
JUSTICE McLACHLAN: And youre not taking any
other position as to whats ministerial and whats not; is that
correct? Thank you, Mr. DAuria.
MR. D'AURIA: I -- do you have a particular
question about that? I -- I --
JUSTICE McLACHLAN: Thank you.
MR. D'AURIA: Thank you, Your Honors.
MR. KRISCH: Good afternoon. May it please the
Court, Im Daniel Jonah Krisch. With me is my partner, Wes
Horton. We represent the plaintiff, Susan Bysiewicz.
JUSTICE NORCOTT: Mr. Horton, youve asked for --
excuse me, Mr. Krisch, youve asked for --
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MR. KRISCH: I appreciate the promotion, Justice
Norcott.
JUSTICE NORCOTT: You might not after what Im
gonna say. Youve asked to divide the time between you and Mr.
Horton.
MR. KRISCH: Thats correct. Im gonna --
JUSTICE NORCOTT: You wish to incur his wrath by
cutting into his time or do you wish to let me --
MR. KRISCH: I have pre-incurred his wrath,
Justice Norcott. Im gonna take 18 minutes and address the
statutory issues and if this Court has any questions about
jurisdiction. Attorney Horton is gonna have 12 minutes and
address the constitutional issue.
JUSTICE NORCOTT: Do you wish me to let you know
when 18 minutes is up?
MR. KRISCH: Yes, thank you. Thank you, Justice
Norcott.
Your Honors, I think I want to begin with the
questions asked by Justice Palmer and Justice Zarella because they
highlight the fundamental guiding principle in this case; namely,
in a democracy, its for the voters to choose who theyll want to
represent them in an elected office and any statute that effects
both the eligibility of a person to serve in that office and the
voters ability to choose freely among possible candidates must be
both construed and applied in such a way as to sustain, rather
than -- rather than get rid of eligibility.
That is the fundamental presumption of eligibility
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in any election case. So with that as the framework, Judge
Sheldon correctly first construed the statute based on its plain
language, history, and related principles and correctly applied
the statute to the facts that he found in this case about the
plaintiffs active practice of law as a member of the bar of this
state.
JUSTICE NORCOTT: Mr. Krisch, even giving it the
broadest construction of this statutory construct, can it possibly
-- could the legislature possibly mean that a person of sufficient
age, just being a member of the bar, paying the requisite fees,
maintaining the status of an attorney, could qualify for this
office?
MR. KRISCH: No, and thats not what Judge Sheldon
held, Justice Norcott. He held that there is some -- although the
word, active practice, is qualitative not quantitative, it cant
be zero. There has to be some engagement in the practice of law
and he made --
JUSTICE NORCOTT: Is it de minimis?
MR. KRISCH: Well, I dont think the Court needs
to answer that question in this case because he made extensive,
clear findings which, although the republican party highlights
some of the evidence that supported it, they make no effort in
their brief or now to demonstrate why the 12 pages of findings
about the plaintiffs regular and frequent practice of law are
clearly erroneous.
He made findings about her collaborative work
issuing opinions, her collaborative work on declaratory rulings,
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her collaborative, independent, personal work providing advice to
election officials, all of which -- and this is the sine qua non
of what the practice of law is -- called for the application of a
trained, legal mind to facts and circumstances of a particular
case, to provide advice that is to somebodys benefit.
JUSTICE KATZ: Mr. Krisch, to whom is your client
accountable?
MR. KRISCH: Well, there are two ways that shes
accountable because fundamentally, shes accountable to the voters
every four years. But as a member of the bar, shes accountable
to the statewide grievance committee. So to the extent that she
did something that violated the rules of professional conduct, in
the course of an activity that is the practice of law, she could
be, as any other attorney could be, sanctioned for that. That
would not interfere with the functions of her office; it would
only interfere with her standing at the bar, which I think ties in
nicely to the proper construction of that phrase as its used in
3-124.
Again, applying the fundamental presumption of
eligibility as the lens through which we view the statute, there
are four reasons -- and these are mostly in Judge Sheldons
decision -- so Im not saying anything he hasnt already said more
eloquently. The four fundamental reasons why at the bar doesnt
mean in-court practice --
JUDGE BISHOP: Mr. Krisch, can I go back to an
earlier point? because I dont want to lose it. Could I -- I want
to give you a hypothetical about being subject to the grievance
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and basically to the oversight of the judiciary. Lets assume a
registrar of voters of some town calls the secretary of state
repeatedly for a month, never gets a return phone call. May that
person file a grievance against the secretary of state for not
tending to his or her client?
MR. KRISCH: Well, that person is not at that
moment her client. Her client, as Judge Sheldon --
JUDGE BISHOP: Lets say the first phone call got
answered and the next 29 did not.
MR. KRISCH: Im not suggesting that whether the
first phone call gets answered is the determinative factor, Judge.
I apologize if I implied that. Her clients are the people of the
state of Connecticut who received the benefit of the advice that
she gives to election officials, not the election officials
specifically.
JUDGE BISHOP: How could she ever be subject to
the sanctions of the court through the grievance process?
MR. KRISCH: Well, it would depend on the
violation in question.
JUDGE BISHOP: Could you give me an example?
MR. KRISCH: Certainly. If she made a statement
disparaging of a judge in public, she could be sanctioned for
that. If she -- if she contacted a represented party in a case
and made some statement to them about the case, she could be
sanctioned for that.
JUDGE BISHOP: Lets take something that you say
is part of her normal duties that represent the engagement --
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represent the practice of law. Is there anything -- if she made a
misstatement while testifying in the General Assembly, would that
subject her to the grievance procedure?
MR. KRISCH: Yes, it would. And she could be
sanctioned as a member of the bar for that, as any other lawyer
could.
JUDGE BISHOP: Doesnt it seem unseemly to you
that the political officer of the State could be subject to the
sanction of the judiciary for conduct of her political duties?
MR. KRISCH: It seems neither unseemly to me nor
does it raise the flood of excessive entanglement between the two
branches, but I think if I read your question correctly --
JUDGE BISHOP: Yes, thats my question.
MR. KRISCH: -- its where its directed. Because
she would be sanctioned only in her status as a member of the bar.
Her function as secretary of the state would not be impaired and
as this Court has said, even if there is some sort of gray area,
some sort of overlap -- a fundamental principle of this Courts
separation of powers of jurisprudence, there still cannot be -- is
not a separation of powers problem. It has to so interfere with
the workings of another branch as -- as to prevent the functioning
of that branch.
And that would not be the case here. She could
still be secretary of the state. She wouldnt have been impeached
from office. She could still do many of the things that a
secretary of the state does. And her office could still fulfill
all of its functions even if, in a worst case scenario, she were
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suspended from the practice of law for a period of time --
JUSTICE NORCOTT: If the people, the general
public, are her clients; is that your position?
MR. KRISCH: As it was Judge Sheldons.
JUSTICE NORCOTT: Do the traditional attorney-
client privileges apply?
MR. KRISCH: No, they do not, but the --
JUSTICE NORCOTT: Thats the marking of an
attorney.
MR. KRISCH: Well, respectfully, Judge Norcott,
thats -- Justice Norcott, thats a red herring.
JUSTICE NORCOTT: You demoted me.
MR. KRISCH: I apologize.
JUDGE BISHOP: Its not so bad.
MR. KRISCH: So its turnabout as to our class.
JUSTICE NORCOTT: Thats true.
MR. KRISCH: Thats a red herring the republican
party raises in its brief, that there are not all the traditional
hallmarks of a law -- excuse me -- a lawyer-client relationship.
Thats true for most government lawyers. States attorneys dont
have clients in the traditional sense. They dont have anybody
with whom they have to keep client confidence or have a retainer
agreement or do all of the other things that most private lawyers
do with their client.
Attorney DAuria doesnt have a client in that
traditional sense with whom he has a retainer agreement. And so
thats simply a red herring. The real question is, are you
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providing the legal services for the benefit of someone? And I
would note that that someone is not singular. In 2-44(a)(2), it
talks about persons, plural, implying that the people receiving
the benefit of your legal services dont have to be one specified
individual.
JUDGE BISHOP: There was a question that I think
someone tried to ask during the trial and I think it was kept out,
but I thought it was an interesting question. If someone -- if
the commissioner of motor vehicles happens to be a lawyer and
someone calls up and says, I got a 16-wheeler. Do I have to put
mud flaps on it? Is answering that question engaging in the
practice of law?
MR. KRISCH: It depends on the process by which
the question is answered. And this was the point that we made to
Judge Sheldon that he notes in his decision, the difference
between information and legal advice.
JUDGE BISHOP: Well, this is a yes or no. I got a
16-wheeler --
MR. KRISCH: Then no.
JUDGE BISHOP: -- do I have to --
MR. KRISCH: Because thats just -- thats just
informational. Thats just directing them to the proper
authority. What she did in this case and in Judge Sheldons
factual findings, pages 117 through 127 of the record are
extensive about this, that there was a collaborative process with
the other lawyers in her office by which they sat down, analyzed a
legal issue and provided a response. So that, for example, when
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the mayor of Hartford called her up and said, one of my principals
wants to close a polling place early at this school because they
want to close the school early. Can he do that?
She had a collaborative process and provided an
answer based on our election law statutes. No, that would be
illegal. It wasnt just informational. It wasnt just
informational. It wasnt, just go look at this statute or our
website answers that question or we have a pamphlet on that. It
was the --
JUSTICE KATZ: Does it matter that she would have
given the same answer regardless of who called her, whether it was
the principal who called her, a voter who called her, the mayor,
Does it matter?
MR. KRISCH: No. Because they all received the
benefit of the advice, as do most particularly the people who
would have voted, who did vote, at that polling place, who would
have received the benefit of the correct legal advice she gave to
Mayor Perez.
JUSTICE KATZ: And if she was wrong in that
advice? What if shes wrong in her interpretation?
MR. KRISCH: Well, thats a risk that lawyers run
all the time, Justice Katz, and certainly, although her office is
high, that is no --
JUSTICE KATZ: Whats the recourse?
MR. KRISCH: If she provides bad legal advice?
JUSTICE KATZ: Well, youre calling it bad legal
advice.
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MR. KRISCH: She provides bad advice?
JUSTICE KATZ: Information.
MR. KRISCH: She provides bad information? Then
it would -- the recourse would depend on what the consequences of
that bad information would be. I agree that theres no appeal,
but theres no appeal if a client calls me up and I give them bad
advice. I suppose they could sue me if it caused them harm, but
the recourse, I think, would depend on the manner of the harm in
this case.
JUSTICE McLACHLAN: Mr. Krisch, in Judge Sheldons
memo and in your brief, on several occasions you seem to imply or
state that a person is practicing law when they use legal training
to analyze and reason a particular problem or apply legal
principles and judgment as the circumstances and objectives of
that person or apply legal training and skill and judgment to the
resolution of a problem. Is that what your position is?
MR. KRISCH: Yes. And based on Patten and the
other cases that we cite in our brief.
JUSTICE McLACHLAN: Now, was Judge Sheldon, when
he was deciding his case, was he practicing law? Because,
clearly, he was using his legal training and skills and his
judgment --
MR. KRISCH: But not to provide -- Im sorry.
JUSTICE McLACHLAN: -- to solve the problem that
was closed.
MR. KRISCH: But not to provide advice for the
benefit of another. He wasnt providing legal advice. He was
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providing authoritative ruling.
JUSTICE McLACHLAN: He was in this case because he
was providing a declaratory judgment as to the meaning in his
interpretation, at least, of the statute and thats exactly what
he was doing.
MR. KRISCH: But a declaratory judgment is not
advice; its a judgment of the Court, Justice McLachlan. I think
thats an important -- important distinction to make between what
Judge Sheldon did and what a lawyer does in their practice. I
think, also --
JUSTICE McLACHLAN: So the important thing is
whos doing it, not what theyre doing?
MR. KRISCH: Both are important, Judge. The
context of both matters, the nature of the work matters, and the
context at which its done matters.
JUSTICE McLACHLAN: I mean, for instance, as
Justice Borden indicated in Darlene C., in his concurring opinion,
that when a government employee is performing his governmental
function, hes not practicing law. Correct?
MR. KRISCH: Thats what Justice Bordens
concurrence said --
JUSTICE McLACHLAN: Right.
MR. KRISCH: -- the majority took a slight tack on
it.
JUSTICE McLACHLAN: Well, the majority didnt
address that issue.
MR. KRISCH: Well, the majority said, even if we
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assume that what the DCF workers were doing is a fact of law
doesnt matter because its authorized by statute and I think if
you look at other cases like the Payne case and like out-of-state
cases cited in our brief --
JUSTICE McLACHLAN: But, in fact, what Judge
Sheldon was doing was exercising his constitutional office.
Correct?
MR. KRISCH: Thats correct.
JUSTICE McLACHLAN: And thats what the secretary
does when she is performing her constitutional function. When
someone calls her with a request, thats what shes doing.
MR. KRISCH: Shes doing that but it doesnt mean
shes not, also, simultaneously engaged in the practice of law.
She is an attorney while shes doing that.
JUSTICE McLACHLAN: But Judge Sheldon is not.
MR. KRISCH: Judge Sheldon is not; thats correct.
Because hes not providing advice for the benefit of another. He
is providing a declaratory ruling and --
JUSTICE McLACHLAN: Youre not telling me that the
plaintiff didnt hope to get advice for her benefit while bringing
this petition?
MR. KRISCH: Ill concede the benefit point
because she wanted a ruling in her favor, but not advice. I think
thats an important distinction and its a distinction that Judge
Sheldon draws, although not between himself and the plaintiff,
that Judge Sheldon draws in his decision.
JUDGE BISHOP: Mr. Krisch, what about --
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JUSTICE KATZ: Mr. Krisch --
JUDGE BISHOP: Excuse me --
JUSTICE KATZ: No. Go ahead.
JUDGE BISHOP: What about when our chief court
administrator, who is a judge, testifies before a committee of the
General Assembly about the application of -- lets say, the
application of federal law to the conduct of juvenile proceedings
in Connecticut. Is our chief court administrator practicing law
by giving that testimony?
MR. KRISCH: I suppose it would depend on the
content of his testimony, but if he is testifying in the way that
Judge Sheldon found to be the practice of law, then yes.
JUDGE BISHOP: Then that would be unethical. I
mean, our chief court administrator, our chief administrative
judge for juvenile, is over there a lot because there are a lot of
federal mandates on how juvenile proceedings must be conducted.
So the State has to harmonize itself with these federal mandates.
One of the ways the General Assembly finds out about this is for
either the chief administrative judge for juvenile or the chief
court administrator to go over there and tell them. You know, by
your reasoning, they would be practicing law and by the rules of
judicial conduct, that would be unethical.
MR. KRISCH: Even if --
JUDGE BISHOP: Help me out of that dilemma.
MR. KRISCH: Even if this Court concludes that
that would be a problem, then decides that was not the practice of
law, there were enough other activities Judge Sheldon found to be
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the practice of law.
JUSTICE SCHALLER: We found three.
MR. KRISCH: We found three. So, but thats one.
The other two would still be enough to sustain the judgment that
she was actively engaged in the practice of law.
JUSTICE KATZ: My question pertains to the first
one, which was the declaratory rulings.
MR. KRISCH: Yes.
JUSTICE KATZ: How much of your argument is
dependent on the first one? Because Im looking at them and
correct me, its Exhibit 60 and 61 -- Exhibits 60 and 61. And 60
seems to rely heavily on the opinion of the Connecticut Attorney
General in its ultimate conclusion. And 61 -- my problem with 61,
Im interested in your response, is, according to the secretary of
states testimony with regard to that, she says is a compilation
of any arguments she had made in public about how we needed to
change our voting machines to comply with the Help America Vote
Act.
And so it was basically a compil -- its not
signed. It is in writing and its a -- but its a compilation of
many things that shes stated in public.
MR. KRISCH: Well, I think the crucial thing to
remember with those two exhibits, Justice Katz, is not just the
exhibits themselves but the process by which they were created.
As Judge Sheldon made fairly detailed findings about the
collaborative process that the plaintiff, her deputy, and
attorneys in her office went through --
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JUSTICE KATZ: Well, thats my problem with one of
them because it says, based upon the opinion of the Connecticut
Attorney General, the secretary of state, as the chief elections
officer for the State of Connecticut, has the ability to issue
rulings, so forth and so on. So shes basing her ultimate opinion
on the attorney general who is representing her.
MR. KRISCH: Yes, I believe thats exhibit 60
and --
JUSTICE KATZ: Correct.
MR. KRISCH: -- and that does not refer to, I
picked up the phone and called the attorney general and got his
opinion. Its based on an opinion issued by the attorney general.
So one may question the authoritativeness of that as a legal
resource, but that shows the application of some source of legal
authority to a particular set of facts, just as in this case there
has been some extensive citation back and forth of the attorney
generals formal opinion.
JUSTICE McLACHLAN: Mr. Krisch, was Mr. Gersten
correct when he indicated that the testimony of your client was
that when shes administering an election, shes not practicing
law?
MR. KRISCH: That was not her testimony. That was
a response to an interrogatory, but theres --
JUSTICE McLACHLAN: Is that correct?
MR. KRISCH: Yes. But the answer refers to the
procedural administration of election details, not questions like
the mayor of Hartford calling up and saying, can I close this
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polling place?
JUSTICE McLACHLAN: All right. Now, 9-3 of the
General Statutes empowers the secretary to do a variety of things,
including issuing declaratory rulings, instructions, and opinions
and theyre presumed correctly interpreting and effectuating the
administration of elections. So do you read that as I do, that
the only authority that she has to issue declaratory rulings, at
least that are binding, are those which deal with the
administration of elections?
MR. KRISCH: No. I dont read the statute the
same way because I think there is a comma that separates those two
clauses. I dont have the statute in front of me but -- and I
would note, also, that 9-4 authorizes her to respond to questions
asked by local election officials, which is another -- another
subject in which Judge Sheldon found her to be practicing law.
JUSTICE McLACHLAN: Now, is it your position that
the duties listed in 9-4, that they are ministerial duties?
MR. KRISCH: Some of -- some of them certainly are
ministerial, some of them are not. Advise local election
officials in connection with proper methods of conducting
elections and referenda is certainly not ministerial because the
giving of advice by its nature is not ministerial, Justice
McLachlan.
JUSTICE ZARELLA: Is all advice legal advice?
MR. KRISCH: Im sorry, I didnt hear your
question.
JUSTICE ZARELLA: Is all advice legal advice?
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MR. KRISCH: No, its not.
JUSTICE ZARELLA: All right. When the secretary
of state is providing legal services, is she violating 3-125? 3-
125 says, all legal services required by such offices, referring
to secretary of state and others, in boards, in matters relating
to their official duties, shall be performed by the attorney
general.
MR. KRISCH: Thats correct. I think if you read
that statute in context, that relates to legal services provided
in court. The attorney general, either personally or at his
direction, provides legal services for those people in court
proceedings and other specified proceedings in 3-125.
JUSTICE ZARELLA: Attorney generals powers are
not limited to solely going into court on behalf of agencies.
MR. KRISCH: No, theyre not, but the powers are
set out in 3-125 and they deal with all the situations in which
those legal services are provided.
JUSTICE ZARELLA: This statement says, all legal
services required by such offices. Is the secretary of state
violating that provision of 3-125 and intruding on the functioning
of the attorney generals office?
MR. KRISCH: No, she is not.
JUDGE BISHOP: Could I ask your opinion of the
importance of one area of testimony?
MR. KRISCH: Sure.
JUDGE BISHOP: My question really has to do with,
is it important on how one holds oneself out as to whether or not
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that person is, in fact, actively engaged in the practice of law?
We heard -- theres testimony that we read, for example, with
respect to the secretarys filings for this client security fund
for, I think, three years and what she indicated she was not
engaged in the practice of law as an occupation. Theres one year
with respect to the occupational tax which -- I think it was the
year 2000, I did not work or was not employed as an attorney. Is
that a red herring in terms of our analysis or is it important in
assessing whether ones practicing that one does or does not hold
oneself out as practicing?
MR. KRISCH: It is a red herring, Judge Bishop.
If you look at 2-44(a), there are separate subsections about the
ways in which you can be engaged in the practice of law, one of
which is if you hold yourself out as an attorney, but another
completely separate one is the giving advice or legal counsel to
people.
JUDGE BISHOP: Well, so that one holds oneself out
as not practicing sounds like it could be relevant.
MR. KRISCH: Well, she didnt say, Im not a
lawyer.
JUDGE BISHOP: I think --
MR. KRISCH: She just didnt positively say, I am
a lawyer.
JUDGE BISHOP: No. I think what she checked off
was on the client security fund, I am not engaged in the practice
of law as an occupation, and on the occupational tax form, just
one year, I did not work or was not employed as an attorney.
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MR. KRISCH: The client security fund form, of
course, she corrected --
JUDGE BISHOP: I know, that was later.
MR. KRISCH: -- subsequently. Subsequently. I
think, also, its important, as Judge Sheldon noted, to look at
functionally, what has she been doing, not what box did she check
on a form.
JUDGE BISHOP: My question was only, whats
important or not about how one holds oneself out?
MR. KRISCH: I think that is not -- that is not
crucial to the decision in this case. Im gonna yield the rest of
my time to Attorney Horton. But I do want to conclude by
reminding this Court, again, about the presumption of eligibility.
So long as this Court has any doubt about whether
Judge Sheldon correctly construed 3-124 and applied it to the
facts of this case, the ultimate decision about who should be our
attorney general is one that the voters should get to decide on
election day with the broadest possible field of choices and,
concurrently, that my client should have the opportunity to
maintain her eligibility for that office and run for that office.
JUSTICE PALMER: Mr. Krisch, I have one more
question, without eating into Mr. Hortons time here. As I
understand it, your definition of practicing law broad -- sort of
broadly stated, would be the giving of legal advice for the
benefit of another. Is that fair?
MR. KRISCH: Yes.
JUSTICE PALMER: Okay. Take a situation where a
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radio personality who has a talk show, is a talk show host, is a
lawyer and recommends to his listening audience or her listening
audience that you should never speak to the police without a
lawyer. Thats his or her legal advice to the assembled multitude
listening to this person, probably not someone who had a very
large audience if thats all he had to say or she had to say, but
lets assume, I mean, is that kind of activity where you might, in
the broadest sense, say that he or she is giving legal advice for
the benefit of another. Is that practicing law?
MR. KRISCH: Yes. And if that statement proves
detrimental to somebody, that radio personality should be
sanctioned for it.
JUSTICE PALMER: So that person who does that,
makes these statements on occasion, normally the person is
involved in political matters, but on occasion makes a statement
like that and has this program for five or eight years, that that
person can include that five- or eight-year period as time that
would count toward his or her being qualified to be attorney
general.
MR. KRISCH: I think it would depend, again, on
the distinction of information -- to be providing people with
information and providing them with advice that you arrived at by
the process of applying your legal training and skill to a set of
facts. So if he simply said, you know, I have this information
for you, no. But if he -- if he engaged in the process that Judge
Sheldon found the plaintiff engaged in when she provided advice,
then, yes, absolutely.
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JUSTICE ZARELLA: You think that same person would
define themselves or their profession or occupation as being an
attorney?
MR. KRISCH: No. They would call themselves a DJ
and my client called herself the secretary of the state.
JUSTICE ZARELLA: But in your brief, you suggest
that practice is related to an occupation or a profession, holding
herself out as your occupation or profession. This -- this -- let
me back up a little. Why doesnt the ten-year requirement conform
what active practice of law means? What is the point of ten years
if you can only -- if you can qualify by doing relatively little
in the practice of law, as you define it over a course of ten
years but if you concentrate and make it your full-time occupation
for five years, that isnt good enough? I cant understand how
that would be the legislatures intent.
MR. KRISCH: Well, there are several reasons why
it is the legislatures -- or would be the legislatures intent.
You have to understand that ten years could also modify at the bar
of this state. They very well have not wanted some -- I was gonna
say Massachusetts, but I better think better -- some New York
interloper to come in and run for attorney general without having
been a member of the bar of this state and practice at the bar of
this state for ten years.
At the bar of this state, read properly, and this
is set out very clearly in Judge Sheldons decision, refers to the
bar of Connecticut as a whole, not the literal bar separating the
courtroom there. And, so, being a member of the bar in
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Connecticut, practicing at that bar, the general bar, may have
been important to the legislators who passed the statute in 1897.
Again, thats just one possible reading of the statute that would
allow -- that would be construed in that fashion.
JUSTICE ZARELLA: But its ten years active
practice.
MR. KRISCH: At the bar of this state.
JUSTICE ZARELLA: At the bar of this state.
MR. KRISCH: Correct.
JUSTICE ZARELLA: Why doesnt the ten years in
active inform what the meaning of practice is? And vice versa?
MR. KRISCH: Im not saying that thats an
irrational reading of the statute, Justice Zarella. All Im
saying is there are other possible readings of the statute and
when this Court has its choice of more than one possible,
reasonable reading of the statute, it must choose the one that
favors eligibility rather than ineligibility.
JUSTICE ZARELLA: Well --
JUDGE BISHOP: Mr. Krisch, can I go back to
Justice Palmers question about the talk show guy --
MR. KRISCH: Certainly.
JUDGE BISHOP: -- who tells the -- you know, dont
talk to police officers. So if that persons not a lawyer, then
that persons guilty of the unauthorized practice of law?
MR. KRISCH: If they provide legal advice to
somebody --
JUDGE BISHOP: Well, no --
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MR. KRISCH: -- yes.
JUDGE BISHOP: -- if the phone call is -- you
know, its from a phone call and the person says, never talk to
the cops without talking with the lawyer first. Your answer to
Justice Palmer was, that was practicing law. So Im assuming the
persons not a lawyer and, therefore, thats the unauthorized
practice of law?
MR. KRISCH: Yes.
JUDGE BISHOP: Okay.
MR. KRISCH: If the court has no further
questions, I will yield what is still 12 minutes, amazingly, to my
co-counsel.
MR. HORTON: Good afternoon, Your Honors. Im
Wesley Horton and I am going to change the subject. This statute
is clearly unconstitutional. The -- I have three major responses
to the States brief and the first one has to do with the word
office in the constitution. The States position is that office
means the offices that existed in 1818 and the analogy they have
is to article 1, section 10, and article 1, section 19, and
specifically cases such as jury trial cases.
But I told Mr. DAuria I was going to mention this
case today, the Evans v. General Motors cases, concerning jury
trials. And it doesnt say, did a jury trial exist at that time
concerning that precise cause of action? It said it had to be,
quote, similar in nature to a cause of action that existed in 1818
that would have been tried to a jury. Thats the Evans case, 277
Connecticut 496.
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Now, all six of the elected-for-four-years, state-
constitutional officials are all lumped in a group in article 4,
section 1, and in article fourth, section 4. They all have four-
year terms. Theyre all elected by the public. Theyre all
executive-branch officials. And the Constitution in 1818 says,
shall be eligible to any office, meaning any constitutional
office, in the state. How can that not include the attorney
general?
And I thought there was -- it came and went very
fast, but Judge Bishop elicited a very important concession I want
to make sure sunk in, from Mr. DAuria. He said, so, the only
restriction on the consti -- the only exception to the
constitutional exception is this 3-124. If more qualifications
for the attorney general come in now, they clearly are
unconstitutional under Article 6, Section 10. Thats very
important. Isnt that bizarre?
In other words, what hes saying is, you cant
have any constitutional -- you cant have any statutory conditions
on the other five offices. You could only have it on the attorney
general and its frozen as to what the conditions are for the
attorney general as of 1970.
Now, the other point I wanted to make is --
JUSTICE PALMER: Mr. Horton?
MR. HORTON: Yes.
JUSTICE PALMER: I didnt understand Mr. DAuria
to make that argument, but maybe -- I mean, thats -- I think
maybe the best way to deal with it is with Justice Norcotts
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permission, if Mr. DAuria needs a minute or so to respond --
MR. HORTON: Oh, sure.
JUSTICE PALMER: -- but I just didnt understand
that that was his argument. I may be wrong about that.
MR. HORTON: I -- Im -- I read his response to
Judge Bishops question to be that if the legislature enacted
other requirements for the attorney general now, other than whats
in article -- in the constitution, that those would be
unconstitutional.
JUDGE BISHOP: Thats not what I heard, Mr.
Horton.
MR. HORTON: Oh, Im sorry.
JUDGE BISHOP: No, actually, I heard him say that
it would be amenable to amendment.
JUSTICE McLACHLAN: Yes.
MR. HORTON: Oh, all right. Then, Im -- I -- I
-- Im sorry, I misread it.
JUSTICE PALMER: I think he said quite the
opposite.
MR. HORTON: Okay. Well, then