1

1 DOCKET NO. SC18612 : SUPREME COURT

2
3 SUSAN BYSIEWICZ : STATE OF CONNECTICUT
4
5 V.
6
7 NANCY DINARDO, ET AL. : MAY 18, 2010
8
9
10B E F O R E:
11
12 THE HONORABLE FLEMMING L. NORCOTT, JR., JUSTICE
13 THE HONORABLE JOETTE KATZ, JUSTICE
14 THE HONORABLE RICHARD N. PALMER, JUSTICE
15 THE HONORABLE CHRISTINE S. VERTEFEUILLE, JUSTICE
16 THE HONORABLE PETER T. ZARELLA, JUSTICE
17 THE HONORABLE C. IAN McLACHLAN, JUSTICE
18 THE HONORABLE THOMAS A. BISHOP, APPELLATE COURT JUDGE
19
20 A P P E A R A N C E S:
21
22
23 Representing the Appellant
24 (Intervening Defendant):
25
26 ELIOT GERSTEN, ESQUIRE
27 Gersten, Clifford & Rome
28 214 Main Street
29 Hartford, CT 06106
30
31 Representing the Appellee (Defendant):
32
33 GREGORY T. D’AURIA, ESQUIRE
34 Senior Appellate Counsel
35 Office of the Attorney General
36 55 Elm Street
37 Hartford, CT 06106
38
39 Representing the Appellee (Plaintiff) Susan Bysiewicz:
40
41 WESLEY W. HORTON, ESQUIRE
42 DANIEL J. KRISCH, ESQUIRE
43 90 Gillett Street
44 Hartford, CT 06105
45
46
47 Transcribed by: Kimberly Silverman
48 Court Recording Monitor
49 101 Lafayette Street
50 Hartford, CT 06106
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1 JUSTICE NORCOTT: The matter for the afternoon is

2Bysiewicz v. Dinardo. Before we begin, I want to welcome Judge

3Bishop to the bench. He’s helping fill up our en banc panel. We

4welcome and thank him. Counsel?

5 MR. GERSTEN: Good afternoon. My name is Eliot

6Gersten. John Van Lenten and I represent the interests of the

7Republican Party of Connecticut, which is an intervening defendant

8in this case. We are the named appellant.

9 JUSTICE NORCOTT: Counsel, do you wish to reserve

10any time for rebuttal?

11 MR. GERSTEN: Yes, please. By prior arrangements,

12we have yielded four minutes of time to the State of Connecticut

13and I’d like to reserve four minutes of rebuttal -- five minutes

14for rebuttal time, please.

15 Briefly stated, the issue on this appeal is on the

16facts at trial whether the Court properly determined it was

17appropriate to entertain a challenge to 113-year-old statute that

18established minimal qualifications a professional needed to have

19in order to serve as an attorney general upon election.

20 In engaging in a decision that said that the

21plaintiff does have those qualifications, the trial court

22basically re-wrote that statute. Section number 3-124 provides,

23which is the statute in question, that the attorney general shall

24be an elector of the state and an attorney at law of at least ten

25years active practice at the bar of this state. I urge the Court

26to take a look at that statute and give each of the words meaning

27as we are required to do.

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1 By deter -- by determining that the plaintiff

2demonstrated that she provided facts sufficient to satisfy all of

3the requirements of the trial court, the trial court opinion and

4its analysis failed to give each word a meaning in the statute and

5violated a number of counts of construction and, instead, created

6a redundancy within the statute on a number of different points.

7 Most importantly, however, in engaging in that

8practice, the trial court has converted the purpose of the statute

9that at a minimum, the best interests of this state are best

10served by a lawyer with no less than ten years of experience at

11the bar and to determining a rational result, frankly, that is not

12-- that is lacking in common sense.

13 It fundamentally comes down to the fact that

14anyone with a law degree and an active registration who

15tangentially uses their skills and training in performing a

16governmental function, and by way of reference, I’ll point you out

17to someone who qualifies here as a policeman who might have gone

18to law school and has a license to practice law but, nonetheless,

19hands out traffic tickets, qualifies under the statute pursuant to

20this trial court’s decision.

21 In fact, we can go farther: When an NFL referee,

22who happens to be a lawyer and there have been some, performed

23their functions on the field, they, too, are using their skills

24and knowledge as lawyers in performing their function which would

25qualify under the terms of this opinion. It’s critical to point

26out that the secretary of state need not be a lawyer in order to

27perform the functions of her job. In this particular situation,

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1it’s undisputed that this particular plaintiff does have a law

2degree and it, undisputed that she was an attorney at law.

3 I think that some of the evidence introduced at

4trial questioned whether she was in good standing, however. For

5example, there were a number of trial court exhibits and there was

6her testimony that indicated that she had indicated -- that she

7had not complied with the basic rules of our practice book in

8filing forms with the Superior Court indicating where she

9practiced law.

10 In addition, there were a number of forms provided

11at evidence and at her testimony in which in six years, under

12oath, she represented and said, I do not practice law as an

13occupation. Each of these elements of her testimony was ignored

14by the trial court.

15 The next part of the statute indicates that there

16must be at least ten years, which indicates that this particular

17statute requires that the professional must have some experience.

18That’s a quantitative analysis not a qualitative analysis, which

19will become important once takes -- when one takes a good look at

20the opinion.

21 In a case out of Maryland in which a challenge was

22made to the attorney general’s requirements which was a

23constitutional requirement, the Court went through an analysis at

24the appellate level and went through very clearly that this

25statute had a purpose -- that provision had a purpose, that what

26we’re looking for is someone who has experience in representing

27the interests of the State of Connecticut.

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1 The next element of this deals with practice and,

2frankly, what the trial court did in terms of determining whether

3or not the definition of practice and actual practice were

4something that were established or new, the trial court went on

5and invented new standards instead of following established

6standards.

7 The function of the job that the secretary of

8state performed, and she is the plaintiff here, is such that she’s

9rendering to herself. This Court has, on a number of occasions,

10adopted and, basically, affirmed the Rosetta Stone of -- the

11language in the CBT case, and I’m presuming this Court’s familiar

12with it now, but at that point what you said in 1956 is that

13functions that are being performed in the practice of law where

14the client is fundamentally the institution itself, the

15institution and those employees and people and personnel

16associated were not practicing law. Therefore, their --

17 JUSTICE NORCOTT: Is it your contention that -- is

18it your argument that her clients are just the institution?

19 MR. GERSTEN: My first position is that she’s not

20practicing at all, that she doesn’t have a client.

21 JUSTICE NORCOTT: That she doesn’t have a client

22at all.

23 MR. GERSTEN: That she is actually the client of

24her office and I think the evidence at trial, Judge Norcott, made

25it pretty clear that she receives advice from third parties, as

26well as staff attorneys within her office. My secondary position

27would be that she has no client and in terms of -- and the trial
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1court’s decision’s saying that the State of Connecticut is her

2client leads us so wide open, exactly as the trial court found,

3she doesn’t have to follow the rules of professional

4responsibility when she’s dealing with those clients. She’s

5immune to it, apparently, or there’s no anything that governs her

6dealing with the clients, the State of Connecticut.

7 JUDGE BISHOP: Generically, Mr. Gersten, what’s

8the difference between a constituent and a client?

9 MR. GERSTEN: A constituent is someone who is a

10citizen of the state, I suppose who votes, and is -- governs many

11of the things that -- that’s one reason why this trial court did

12get one thing right, in her services to constituents. That

13doesn’t qualify as the practice of law. The difference I would

14carve out, as far as a client, would be, you have to have someone

15identifiable, that has identifiable interests, and in order to

16answer that generically, it’s -- in my own opinion, Your Honor,

17it’s difficult because a client would have some kind of confidence

18when they’re receiving advice.

19 In this particular circumstance, we have a person

20who’s sitting in that chair, admittable, as the record and the

21evidence showed, giving conflicting pieces of information or

22information to conflicting citizens in the course of providing her

23advice to people. So she’s got no client, by her own definition.

24She has none, as the trial court found -- none of the earmarks of

25complying with the code of professional responsibility that

26governs everyone else who practices law in this state.

27 Even if we were to go so far and apply the current

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1definition of Section 2-44(a), the practice of law is ministering

2to the legal needs of another person in applying legal principles

3and judgment to the circumstances or objectives of that person.

4So, again, I go back to the fact, in the absence of anyone

5identifiable, generically or not, it’s difficult to have someone

6say, I can rely on what I was told by the secretary of state.

7 Most importantly, and where we find the biggest

8issue the way the trial court did the analysis, is that in

9determining what is the active practice of law, the trial court

10basically said, if you do a little bit of it, you’re actively

11practicing law. And the problem that exists there is that the

12trial court called that the qualitative analysis as opposed to a

13quantitative analysis.

14 And we would respectfully submit that in going so

15far to do that, that the trial court completely ignored and paid

16no attention to the standards that could have been applied here

17very easily and those standards that have been pronounced through

18this court and other places in terms of the reciprocity statutes,

19which basically require that an applicant will have a substantial

20or full-time amount of their energy devoted to the occupation of

21law.

22 In this particular circumstance, we have somebody

23who admits that’s not what she does. She did that on five

24occasions in sworn statements between 2005 and 2007 on her average

25filing. On her filings were the various regulatory authorities.

26This individual is nothing more than a regulator at best in

27performing her job. She lists herself as the secretary of state.

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1She never held herself out as an attorney during the entire time

2period. She was quite clear on the witness stand, I don’t tell

3anybody I’m an attorney.

4 Now, the problem is the trial court departed from

5applying the standard that already existed and in so doing, the

6trial court engaged in a rather lengthy and detailed -- and a lot

7of effort went into it, but in a way that is so nuanced that it

8leaves open to it all sorts of new applications.

9 I remind this Court, also, that the appropriate

10standard exists by application of the Supreme Court decision in

11the application of Dodd, our current senator’s father, 132

12Connecticut 237. And in that situation, what this Court reminded

13us all is that the purpose is to ensure there’s a knowledgeable

14background and experience, someone who devoted time and considered

15it to be their actual occupation.

16 In this particular circumstance, the trial court

17depended upon some evidence in which this plaintiff said, I

18declared some declaratory rulings, and pointed out to two of them.

19And I’d ask you to scour the record and what you’ll see there is a

20paucity of evidence and even as the trial court described these

21so-called declaration rulings, if one looks at the exhibits,

22there’s exhibits that were entered in the trial. I don’t know

23what the trial court’s referring to because one exhibit referred

24to an unsigned memorandum that basically said it’s dealing with

25voting machines.

26 When we asked the plaintiff if this was a

27declaratory ruling issued pursuant to statute, she said,

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1absolutely. And then we walked through the definition -- or the

2application, rather, of the Uniform Administrative Procedure Act.

3She had no idea what we were talking about and she admitted that

4she’s never looked at it, didn’t know what it was, a very basic

5element of what constitutes a declaratory ruling, which is the one

6thing that she is authorized by statute to do. So we have someone

7who not only doesn’t hold herself out as a lawyer when she’s doing

8these things that the trial court found, but she didn’t even know

9what she was doing when she did em.

10 In using the quantitative anal -- measure of ten

11years, we would submit to the Court that the -- that’s the reason

12why the statute required a quantitative analysis and not a

13qualitative analysis and why there are measures already existing

14of performing time, and it should be a full-time basis as opposed

15to being, basically, a little bit pregnant. That gets you all the

16way there. And that’s exactly what this trial court ruling holds.

17 Our basis goes back to the history and the

18creation for the office of the attorney general. When the

19secretary of state was an attorney, he could practice law. The

20practice of law in 1897 was taken away from the secretary of

21state’s office and it was created, and when the attorney general’s

22office was created -- and that’s where the responsibility of

23practiced law came in and that’s who the lawyer is for the State

24of Connecticut. That statute left the mound of the work to the

25State, including the secretary of state, to do things, including

26the administration of elections.

27 And in this particular case against -- again, the

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1evidence of such is in an answer to interrogatories that are part

2of the record. This plaintiff said under oath, in the

3interrogatories, I do not consider the administration of elections

4to be part of my claim that I’m practicing law. In essence, the

5secretary of state’s office, when the attorney general’s office

6was created, was, in fact, created to be -- it was intended and

7was created to be a client of the attorney general.

8 For all intent and purposes, for purposes of this

9statute, I would submit that the secretary of state’s office, for

10purposes of claiming that the officer there actually practiced

11law, was legislatively neutered. I’d ask that you also take a

12look at the 1934 Connecticut Registry Manual, and most importantly

13what the trial court paid incredibly scant attention to is the

14scholarly article written by Judge Cohn on the history of the

15attorney general’s office in which it spells out that this statute

16was created to avoid having a political hat put into position and

17we wanted to have qualified people to take that job.

18 The evidence at trial really demonstrated very

19little that this plaintiff put on and I would say to you, frankly,

20in light of the fact that this plaintiff brought this action and

21this plaintiff knew this was her claim that she wanted to prove to

22everybody and say, I’m a real lawyer, all the evidence that she

23marshaled to present that she’s been doing this for an extended

24period of time is very little. And we pointed -- we tried to

25point that out in our briefs.

26 Finally, in terms of the definitions, we believe

27the trial court completely wrote the application of the words, at

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1the bar of the state, out of the statute. If one takes a look at

2the 1897 statute and takes a look at the dictionaries that were in

3place at that time, one would see that at the bar meant being a

4trial lawyer, and having that designation and that qualification

5meant something, in light of the way that this statute was

6intended to accomplish something. It is a minimum requirement

7statute.

8 The legislature, as of 1897, wanted someone who

9knew their way around the court system to represent the interests

10of the State of Connecticut. That’s why this was written.

11Again, I would indicate that the historical definition, besides

12the ones we cite in our brief, go back to Judge Cohn’s article at

1381 Connecticut Bar and we also have the judicial history and civil

14history of Connecticut, which the trial court looked at for some

15reasons but failed to look at for other reasons.

16 JUSTICE PALMER: Mr. Gersten, it seems to me that

17important to Judge Sheldon’s decision is the fact -- is his

18reliance on the belief that the statute, like the statute issue

19here, should be given a liberal construction in -- because of the

20interest that it implicates. What’s your view about that?

21 MR. GERSTEN: I’m not sure -- I’m not sure that

22when the trial court used the words liberal construction that it

23really means much, because fundamentally you have to give words

24that are used in that statute and each word that’s used in that

25statute, you have to give each one meaning. And I think that when

26Judge Sheldon did what he called his verbal construction to set

27minimal requirements that, in accomplishing such a purpose, he

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1wrote any kind of meaningful requirement out of the statute.

2 JUSTICE PALMER: Well, do you agree that as a

3matter of law that we ought to give the statute of liberal

4construction -- I know you disagree that even construed liberally,

5the statute gets where Judge Sheldon got, but do you dispute the

6fact or the claim that it’s entitled to -- that the plaintiff’s

7entitled to a liberal construction of the statute?

8 MR. GERSTEN: I think -- I think we can dispute

9that because it’s not a eligibility, as compared to other statutes

10which have been given a liberal construction, it’s not an

11eligibility-to-run statute.

12 JUSTICE PALMER: Why is it not --

13 MR. GERSTEN: Because --

14 JUSTICE PALMER: -- in effect, anyway?

15 MR. GERSTEN: I’m sorry?

16 JUSTICE PALMER: In effect, anyway, why is it not?

17 MR. GERSTEN: Well, I guess, that walks into some

18of the issues that have been raised by the Court on its own motion

19in terms of the jurisdiction here. Nothing prevents this

20plaintiff from running, nothing. In contrast to every one of the

21cases that the judge cites, in every other -- all the cases that

22the plaintiff relied on, they are all absolute bars to

23participating in the electoral process.

24 And in this particular circumstance, we have an

25individual who has testified and, frankly, put all the evidence on

26the record, that there is nothing stopping me from doing what I

27want to do.
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1 JUSTICE PALMER: Well, you’re -- I mean, I

2understand your point. I’m not looking at this, at this stage

3anyway, from the standpoint of ripeness. I’m more interested to

4understand your perspective on why this statute is not entitled to

5a liberal construct -- or why the plaintiff’s not entitled to have

6the statute construed liberally because -- I mean, I agree with

7you that there’s some general language used in the statute.

8 There’s some specific language used in the

9statute, as well, but if it turns out that she doesn’t comply with

10the statute, she will not be able to run for that office and why

11doesn’t -- why is that alone not reason to -- and the fact that

12the elector would not be allowed to -- you know, would not be in a

13position to vote for her, why is that not reason alone to construe

14the statute liberally?

15 MR. GERSTEN: Well, Justice Palmer, I’m not sure

16that a liberal -- by labeling it liberal construction, we do that

17much with it. If what we’re trying to do is use each one of the

18words to its lowest common denominator, that might be what is the

19better way to word it as opposed to --

20 JUSTICE PALMER: Construed is -- construed is

21broadly encompassing as reasonably possible given the language.

22 MR. GERSTEN: Okay.

23 JUSTICE PALMER: Do you dispute that?

24 MR. GERSTEN: I don’t dispute that we should do

25that.

26 JUSTICE PALMER: Okay.

27 MR. GERSTEN: As long as we don’t depart from the

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1legislative purpose in doing that.

2 JUSTICE PALMER: Okay.

3 JUSTICE ZARELLA: So what you’re saying, it

4shouldn’t be a liberal construction; it should be a liberal

5application, that the statute should be apply -- in instances

6where the facts are unclear as to whether or not they -- the

7applicant is covered by the construction of the -- the terms of

8the statute, you apply it liberally.

9 MR. GERSTEN: I think that -- I think that’s

10correct, Justice Zarella. As a matter of fact, part of the

11problem is the paucity of facts here to apply it to. And what --

12if what we’re trying to do is to get to the lowest common

13denominator between all five or seven of these words that apply

14here, the plaintiff still didn’t prove that case either.

15 I mean, the bottom line is, what was the purpose

16of the statute and how do you apply it in a way that is so broad

17to encompass as many people as possible and not deviate from the

18purpose of the statute? And, again, I think that part of the

19problem in doing it on a qualitative analysis is such that if you

20try to say that the plaintiff’s little bit of proof that she

21provided to us here shows that she’s been doing this throughout

22her entire time span as a secretary of the state, then I would say

23that it becomes boundless in terms of what applications -- what

24words these -- what meaning these words have.

25 JUDGE BISHOP: Mr. Gersten, is it your view --

26take different facts -- take it the fact that the applicant has a

27thriving estate planning practice which never sees the inside of a

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1courthouse. From your analysis of the statute, would that person

2presently be qualified? -- meets all the -- you know, meets the

3ten-year requirement?

4 MR. GERSTEN: I think that that would take the

5meaning of the words, at the bar, as it was used in the statute,

6and eliminate it. And I think that there is a reading that would

7say that that person who had the thriving estate practice, unless

8that person participated in court proceedings and thriving -- and,

9again, there are many estate lawyers who do, in fact, go to court,

10but --

11 JUDGE BISHOP: But my example, that’s not.

12 MR. GERSTEN: I think that that person’s

13qualifications under the statute would not satisfy the statute.

14 JUDGE BISHOP: Why wouldn’t it be a liberal

15application of the language of the statute to consider that at the

16time this statute was enacted, what was prohibited as the

17unauthorized practice of law was going to court and not being a

18lawyer -- pleading and not being a lawyer? It wasn’t until the

19thirties that statutes were amended to include within the

20prescription, the transactional business.

21 And, so, why can’t you glean from that that back

22in 1897, people’s concept of a lawyer was a pleader and someone

23who went to court? Why couldn’t you then take a liberal

24application of the statute and say, well, today’s concept of a

25lawyer is much broader than that, as was recognized by

26legislatures across this country in the thirties? Wouldn’t that

27be an example of a liberal application of the statute?

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1 MR. GERSTEN: Yes, Your Honor. It --

2 JUDGE BISHOP: I’m not trying to coerce you into

3that answer. I’m just trying to learn the answer.

4 MR. GERSTEN: You’re -- you’re not --

5 JUSTICE PALMER: You don’t know Mr. Gersten if you

6think he can be that easily coerced.

7 MR. GERSTEN: I think that an interesting use of

8the words, at the bar, at that time period, coincidentally enough,

9is an 1897 obituary of Justice Park in which they talk about

10Justice Park -- Judge Park, who became a chief judge, had a -- and

11coincidentally, it’s in the same time period the statute was

12brought up, where Judge Park entered his judicial -- he had

13acquired but a very limited legal practice and probably would

14never have obtained a high success at the bar, and they went on to

15talk about how he became a great judge or a judge nonetheless.

16 And I think that in that context, it demonstrates

17that what they were thinking of at that time period was someone

18who was at court, particularly the way they spoke about him in his

19obituary.

20 In closing -- and again, I’m not certain how we

21want to divide up the time on the jurisdictional issues that the

22Court raised but --

23 JUSTICE NORCOTT: You wanted to defer some time

24to --

25 MR. GERSTEN: I’d be glad to. I’d be glad to.

26 JUSTICE NORCOTT: Well, you can finish your

27point --
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1 MR. GERSTEN: In closing --

2 JUSTICE NORCOTT: I’m gonna be fairly liberal with

3the time.

4 MR. GERSTEN: That’s a liberal application. Thank

5you.

6 In closing, we think that the plaintiff had the

7burden. I think it’s pretty well established the plaintiff had

8the burden of having to demonstrate that she had to satisfy all of

9these elements. And the most interesting part about this is that

10in going through this 96-page opinion, there’s all sorts of new

11standards that have been applied that make it an exception that

12basically eats up the rule and there’s no way to determine how

13this plaintiff -- this ruling could be applied in the future,

14except to allow that officer of the law with a law degree who

15hands out traffic tickets to be determined to be practicing law as

16often, if not more often, as the secretary of state did here.

17 JUSTICE PALMER: Mr. Gersten, before you -- I just

18have one question, one more question, I guess by way of a

19hypothetical. I think I know your answer, but I’d like to hear

20your rationale behind it if I am correct. Take a person who

21engages in eight years of litigation in Connecticut, no dispute

22about that, takes a position as a law professor at a law school.

23Does that for, you know, however long -- five years, eight years,

24ten years -- and then is appointed to the bench for five or eight

25years and for some reason decides that he or she wants to run for

26attorney general.

27 Under your interpretation of the statute, no

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1matter how liberal we might conclude it should be construed, I

2presume that you would say that that person is not eligible. And

3if I’m wrong, tell me that I’m wrong and, you know -- but if I’m

4right, explain to me why that should be the case.

5 MR. GERSTEN: Justice Palmer, I think that you’re

6right, that’s how we interpret it. And I think that --

7 JUSTICE PALMER: Does that makes sense?

8 MR. GERSTEN: It makes absolute sense because the

9fundamental problem with this -- with saying it doesn’t make sense

10is that’s what the legislature’s for. And, in fact, in light of

11the fact that this particular plaintiff has lots of experience

12with our legislature, the answer is not in a courthouse. The

13answer is, go change the statute. Just as the evidence

14demonstrated and the trial court pointed out, that’s what she’s

15told her constituents when there was something about a statute

16that they couldn’t deal with. She said, go deal with your

17legislature.

18 So I would say to this plaintiff who is in that

19hypothetical, that, you know, it’s not a good idea, but we think

20what you ought to do is go right across the street there and go

21deal with your legislators to change the statute because it’s no

22longer serving its purpose, cuz you’re a qualified candidate.

23 Thank you.

24 MR. D'AURIA: Good afternoon, Justice Norcott.

25May it please the Court, Gregory D’Auria for the State. We’re

26here to address only the constitutional issue and on that score, I

27think it’s clear from the constitutional history that no one --

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1and from the briefs in this case -- no one, not even the

2plaintiff, argues in this case that it was anyone’s intent in 1970

3when the Constitution added the words attorney general to article

44, section 1 -- it was never anyone’s intention to eliminate the

5statutory requirements for attorney general, that it existed for

6over 70 years or to make the attorney general’s office eligible to

7any elector; rather, it’s the plaintiff’s argument, essentially,

8that that was a historical accident, that that was the effect of

9amended article fourth, section 1, without touching article sixth,

10section 10.

11 The syllogism goes, the AG is now a constitutional

12law officer. You’re therefore like any other office in the state

13-- I’ll put that phrase in quotes -- ergo article sixth, section

1410, applies to you. But our state history and our constitutional

15history tell us that the AG is not like any other state officer,

16not because our office is special in any way for constitutional

17purposes, but because three reasons, related reasons: It came

18into the Constitution later, obviously; it already existed when it

19did, going to the Constitution; and it came with a history of 70

20years of consti -- of statutory duties and responsibilities and,

21yes, requirements that were not of constitutional derivation.

22 So that makes it -- that makes that office

23different and I think this Court has to construe -- has to look at

24the office differently in construing whether there was ever any

25intent in 1918 -- 1818, 1965, 1970 or otherwise, to include the

26attorney general within an office in the state for article sixth,

27section 10, purposes.

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1 JUDGE BISHOP: Does the Constitution freeze in

2place the language of the statute or is the statute post-

3constitutional still amenable to amendment?

4 MR. D'AURIA: Amenable to amendment. Barnes was,

5I think, very clear on that for purposes of duties. I don’t think

6we could contend otherwise for requirements -- statutory

7requirements. I think where the plaintiff and the State most

8pointedly disagree is that page 36 of the plaintiff’s brief takes

9the position that the only relevant constitutional history is

10article sixth, section 10, and we don’t think that’s true.

11 You have to look at the history -- the 1970

12history of the attorney general and ask the question, was the

13intent in 1970 by the -- of the framers or the people that the

14attorney general would be an article sixth, section 10, office

15that would be open to all the electors? And when you look at the

16limited text, two words were inserted in the constitution in 1970,

17attorney general, the limited text and the limited purpose as

18articulated by the legislative history.

19 It’s clear that there was a limited intent. The

20limited intent was that the office couldn’t be legislatively

21abolished. But there is no intent to alter or abolish the

22statutory requirements, didn’t seek to confer new rights on

23electors or candidates so that they didn’t have to have these

24requirements.

25 And I should point out here, I think the Court

26should not be quick to presume for it’s own purposes that that was

27the intent of the framers because it’s hard to believe that the
 1 20

1chief legal civil officer of the State could be a non-lawyer; that

2is, any elector could be the attorney general with all of the

3duties that include appearing in this court representing state

4officials and employees, including judicial officials. That

5shouldn’t be something that this Court should presume lightly.

6 Now, Mr. Horton’s likely theme, as it was in his

7brief, when he gets up is gonna say, we should let the voters

8choose who will govern them without limitation. The State has no

9quarrel with that maxim, no quarrel with James Madison or that

10egalitarian concept. But the problem in this case, the vexing

11problem, is that limitation always was in our law. It existed for

1270 years. If there was a limitation or requirement that the

13attorney general be whatever the phrase means, an attorney for ten

14years at the bar of this state. So the question is -- and the

15voters imposed that requirement.

16 I’ll just finish briefly. Thank you. The voters,

17through their representatives, imposed that requirement. So the

18question is whether in 1970, the legislature, in proposing the

19constitutional amendment -- it was the legislature -- and the

20people ratifying it intended, silently, to repeal that statute

21that had been in effect for many years. That’s all I have.

22 There’s one point I’d like to make about -- Mr.

23Horton and I have had a discussion about something that he’ll talk

24about, perhaps, footnote 17 of his brief, about the 1970 and 1980

25amendments that grammatically, sort-of, butchered article sixth,

26section 10, by duly imposing an age requirement and grammatically

27putting the modifier after -- after the -- after the earlier

 1 21

1language that existed. We agree with Mr. Horton that -- that the

2except clause doesn’t modify the but-no-person clause; rather, it

3-- that it modifies the every elector clause.

4 I think when you hear him argue that, though, you

5keep -- you should keep in mind that that concession -- or that --

6that language, as construed, as we both agree it will, requires

7some glance at the intent of the constitutional amendment and it

8does some violence to his plain language, you know, go-no-further-

9than-the-text argument. With that, I’ll sit down.

10 JUSTICE McLACHLAN: Excuse me, Mr. D’Auria --

11 MR. D'AURIA: Sure. Yes.

12 JUSTICE McLACHLAN: With the permission of Justice

13Norcott, do you have your brief?

14 MR. D'AURIA: A few.

15 JUSTICE McLACHLAN: Could you look at page 1 and

16footnote 2?

17 MR. D'AURIA: Yes.

18 JUSTICE McLACHLAN: The office of the secretary of

19the state, particularly, sees no need to take a position on this

20issue, meaning the qualifications, because the office’s duties in

21connection with the election of candidates for attorney general

22are purely ministerial in nature. What does that mean? Could --

23could the office of the secretary issue a declaratory ruling on

24the eligibility of a candidate?

25 MR. D'AURIA: Well -- no, I think, is the answer

26to that question. They don’t pass upon the qualifications of

27candidates.
 1 22

1 JUSTICE McLACHLAN: So that as I understand the

2statute, then, the duty of the secretary, even though the

3secretary is empowered to issue regulations, rulings and

4instructions, it only has to do with the interpretation

5effectuated in the administration of the elections. Correct?

6 MR. D'AURIA: I think it’s as easy to say -- I’m

7pretty sure it’s as easy to say that 3-124 is not within that

8office’s jurisdiction.

9 JUSTICE McLACHLAN: Well, but the question really

10is, what is within the office’s jurisdiction? Is the function of

11the secretary of the state ministerial or is it not ministerial?

12That’s the question.

13 MR. D'AURIA: Well, as to -- as to -- as to the

14question of a candidate’s qualifications, the -- that office takes

15the position that it is, in fact, ministerial.

16 JUSTICE McLACHLAN: And you’re not taking any

17other position as to what’s ministerial and what’s not; is that

18correct? Thank you, Mr. D’Auria.

19 MR. D'AURIA: I -- do you have a particular

20question about that? I -- I --

21 JUSTICE McLACHLAN: Thank you.

22 MR. D'AURIA: Thank you, Your Honors.

23 MR. KRISCH: Good afternoon. May it please the

24Court, I’m Daniel Jonah Krisch. With me is my partner, Wes

25Horton. We represent the plaintiff, Susan Bysiewicz.

26 JUSTICE NORCOTT: Mr. Horton, you’ve asked for --

27excuse me, Mr. Krisch, you’ve asked for --

 1 23

1 MR. KRISCH: I appreciate the promotion, Justice

2Norcott.

3 JUSTICE NORCOTT: You might not after what I’m

4gonna say. You’ve asked to divide the time between you and Mr.

5Horton.

6 MR. KRISCH: That’s correct. I’m gonna --

7 JUSTICE NORCOTT: You wish to incur his wrath by

8cutting into his time or do you wish to let me --

9 MR. KRISCH: I have pre-incurred his wrath,

10Justice Norcott. I’m gonna take 18 minutes and address the

11statutory issues and if this Court has any questions about

12jurisdiction. Attorney Horton is gonna have 12 minutes and

13address the constitutional issue.

14 JUSTICE NORCOTT: Do you wish me to let you know

15when 18 minutes is up?

16 MR. KRISCH: Yes, thank you. Thank you, Justice

17Norcott.

18 Your Honors, I think I want to begin with the

19questions asked by Justice Palmer and Justice Zarella because they

20highlight the fundamental guiding principle in this case; namely,

21in a democracy, it’s for the voters to choose who they’ll want to

22represent them in an elected office and any statute that effects

23both the eligibility of a person to serve in that office and the

24voter’s ability to choose freely among possible candidates must be

25both construed and applied in such a way as to sustain, rather

26than -- rather than get rid of eligibility.

27 That is the fundamental presumption of eligibility

 1 24

1in any election case. So with that as the framework, Judge

2Sheldon correctly first construed the statute based on its plain

3language, history, and related principles and correctly applied

4the statute to the facts that he found in this case about the

5plaintiff’s active practice of law as a member of the bar of this

6state.

7 JUSTICE NORCOTT: Mr. Krisch, even giving it the

8broadest construction of this statutory construct, can it possibly

9-- could the legislature possibly mean that a person of sufficient

10age, just being a member of the bar, paying the requisite fees,

11maintaining the status of an attorney, could qualify for this

12office?

13 MR. KRISCH: No, and that’s not what Judge Sheldon

14held, Justice Norcott. He held that there is some -- although the

15word, active practice, is qualitative not quantitative, it can’t

16be zero. There has to be some engagement in the practice of law

17and he made --

18 JUSTICE NORCOTT: Is it de minimis?

19 MR. KRISCH: Well, I don’t think the Court needs

20to answer that question in this case because he made extensive,

21clear findings which, although the republican party highlights

22some of the evidence that supported it, they make no effort in

23their brief or now to demonstrate why the 12 pages of findings

24about the plaintiff’s regular and frequent practice of law are

25clearly erroneous.

26 He made findings about her collaborative work

27issuing opinions, her collaborative work on declaratory rulings,

 1 25

1her collaborative, independent, personal work providing advice to

2election officials, all of which -- and this is the sine qua non

3of what the practice of law is -- called for the application of a

4trained, legal mind to facts and circumstances of a particular

5case, to provide advice that is to somebody’s benefit.

6 JUSTICE KATZ: Mr. Krisch, to whom is your client

7accountable?

8 MR. KRISCH: Well, there are two ways that she’s

9accountable because fundamentally, she’s accountable to the voters

10every four years. But as a member of the bar, she’s accountable

11to the statewide grievance committee. So to the extent that she

12did something that violated the rules of professional conduct, in

13the course of an activity that is the practice of law, she could

14be, as any other attorney could be, sanctioned for that. That

15would not interfere with the functions of her office; it would

16only interfere with her standing at the bar, which I think ties in

17nicely to the proper construction of that phrase as it’s used in

183-124.

19 Again, applying the fundamental presumption of

20eligibility as the lens through which we view the statute, there

21are four reasons -- and these are mostly in Judge Sheldon’s

22decision -- so I’m not saying anything he hasn’t already said more

23eloquently. The four fundamental reasons why at the bar doesn’t

24mean in-court practice --

25 JUDGE BISHOP: Mr. Krisch, can I go back to an

26earlier point? because I don’t want to lose it. Could I -- I want

27to give you a hypothetical about being subject to the grievance

 1 26

1and basically to the oversight of the judiciary. Let’s assume a

2registrar of voters of some town calls the secretary of state

3repeatedly for a month, never gets a return phone call. May that

4person file a grievance against the secretary of state for not

5tending to his or her client?

6 MR. KRISCH: Well, that person is not at that

7moment her client. Her client, as Judge Sheldon --

8 JUDGE BISHOP: Let’s say the first phone call got

9answered and the next 29 did not.

10 MR. KRISCH: I’m not suggesting that whether the

11first phone call gets answered is the determinative factor, Judge.

12I apologize if I implied that. Her clients are the people of the

13state of Connecticut who received the benefit of the advice that

14she gives to election officials, not the election officials

15specifically.

16 JUDGE BISHOP: How could she ever be subject to

17the sanctions of the court through the grievance process?

18 MR. KRISCH: Well, it would depend on the

19violation in question.

20 JUDGE BISHOP: Could you give me an example?

21 MR. KRISCH: Certainly. If she made a statement

22disparaging of a judge in public, she could be sanctioned for

23that. If she -- if she contacted a represented party in a case

24and made some statement to them about the case, she could be

25sanctioned for that.

26 JUDGE BISHOP: Let’s take something that you say

27is part of her normal duties that represent the engagement --

 1 27

1represent the practice of law. Is there anything -- if she made a

2misstatement while testifying in the General Assembly, would that

3subject her to the grievance procedure?

4 MR. KRISCH: Yes, it would. And she could be

5sanctioned as a member of the bar for that, as any other lawyer

6could.

7 JUDGE BISHOP: Doesn’t it seem unseemly to you

8that the political officer of the State could be subject to the

9sanction of the judiciary for conduct of her political duties?

10 MR. KRISCH: It seems neither unseemly to me nor

11does it raise the flood of excessive entanglement between the two

12branches, but I think if I read your question correctly --

13 JUDGE BISHOP: Yes, that’s my question.

14 MR. KRISCH: -- it’s where it’s directed. Because

15she would be sanctioned only in her status as a member of the bar.

16Her function as secretary of the state would not be impaired and

17as this Court has said, even if there is some sort of gray area,

18some sort of overlap -- a fundamental principle of this Court’s

19separation of powers of jurisprudence, there still cannot be -- is

20not a separation of powers problem. It has to so interfere with

21the workings of another branch as -- as to prevent the functioning

22of that branch.

23 And that would not be the case here. She could

24still be secretary of the state. She wouldn’t have been impeached

25from office. She could still do many of the things that a

26secretary of the state does. And her office could still fulfill

27all of its functions even if, in a worst case scenario, she were
 1 28

1suspended from the practice of law for a period of time --

2 JUSTICE NORCOTT: If the people, the general

3public, are her clients; is that your position?

4 MR. KRISCH: As it was Judge Sheldon’s.

5 JUSTICE NORCOTT: Do the traditional attorney-

6client privileges apply?

7 MR. KRISCH: No, they do not, but the --

8 JUSTICE NORCOTT: That’s the marking of an

9attorney.

10 MR. KRISCH: Well, respectfully, Judge Norcott,

11that’s -- Justice Norcott, that’s a red herring.

12 JUSTICE NORCOTT: You demoted me.

13 MR. KRISCH: I apologize.

14 JUDGE BISHOP: It’s not so bad.

15 MR. KRISCH: So it’s turnabout as to our class.

16 JUSTICE NORCOTT: That’s true.

17 MR. KRISCH: That’s a red herring the republican

18party raises in its brief, that there are not all the traditional

19hallmarks of a law -- excuse me -- a lawyer-client relationship.

20That’s true for most government lawyers. State’s attorneys don’t

21have clients in the traditional sense. They don’t have anybody

22with whom they have to keep client confidence or have a retainer

23agreement or do all of the other things that most private lawyers

24do with their client.

25 Attorney D’Auria doesn’t have a client in that

26traditional sense with whom he has a retainer agreement. And so

27that’s simply a red herring. The real question is, are you
 1 29

1providing the legal services for the benefit of someone? And I

2would note that that someone is not singular. In 2-44(a)(2), it

3talks about persons, plural, implying that the people receiving

4the benefit of your legal services don’t have to be one specified

5individual.

6 JUDGE BISHOP: There was a question that I think

7someone tried to ask during the trial and I think it was kept out,

8but I thought it was an interesting question. If someone -- if

9the commissioner of motor vehicles happens to be a lawyer and

10someone calls up and says, I got a 16-wheeler. Do I have to put

11mud flaps on it? Is answering that question engaging in the

12practice of law?

13 MR. KRISCH: It depends on the process by which

14the question is answered. And this was the point that we made to

15Judge Sheldon that he notes in his decision, the difference

16between information and legal advice.

17 JUDGE BISHOP: Well, this is a yes or no. I got a

1816-wheeler --

19 MR. KRISCH: Then no.

20 JUDGE BISHOP: -- do I have to --

21 MR. KRISCH: Because that’s just -- that’s just

22informational. That’s just directing them to the proper

23authority. What she did in this case and in Judge Sheldon’s

24factual findings, pages 117 through 127 of the record are

25extensive about this, that there was a collaborative process with

26the other lawyers in her office by which they sat down, analyzed a

27legal issue and provided a response. So that, for example, when

 1 30

1the mayor of Hartford called her up and said, one of my principals

2wants to close a polling place early at this school because they

3want to close the school early. Can he do that?

4 She had a collaborative process and provided an

5answer based on our election law statutes. No, that would be

6illegal. It wasn’t just informational. It wasn’t just

7informational. It wasn’t, just go look at this statute or our

8website answers that question or we have a pamphlet on that. It

9was the --

10 JUSTICE KATZ: Does it matter that she would have

11given the same answer regardless of who called her, whether it was

12the principal who called her, a voter who called her, the mayor,

13Does it matter?

14 MR. KRISCH: No. Because they all received the

15benefit of the advice, as do most particularly the people who

16would have voted, who did vote, at that polling place, who would

17have received the benefit of the correct legal advice she gave to

18Mayor Perez.

19 JUSTICE KATZ: And if she was wrong in that

20advice? What if she’s wrong in her interpretation?

21 MR. KRISCH: Well, that’s a risk that lawyers run

22all the time, Justice Katz, and certainly, although her office is

23high, that is no --

24 JUSTICE KATZ: What’s the recourse?

25 MR. KRISCH: If she provides bad legal advice?

26 JUSTICE KATZ: Well, you’re calling it bad legal

27advice.
 1 31

1 MR. KRISCH: She provides bad advice?

2 JUSTICE KATZ: Information.

3 MR. KRISCH: She provides bad information? Then

4it would -- the recourse would depend on what the consequences of

5that bad information would be. I agree that there’s no appeal,

6but there’s no appeal if a client calls me up and I give them bad

7advice. I suppose they could sue me if it caused them harm, but

8the recourse, I think, would depend on the manner of the harm in

9this case.

10 JUSTICE McLACHLAN: Mr. Krisch, in Judge Sheldon’s

11memo and in your brief, on several occasions you seem to imply or

12state that a person is practicing law when they use legal training

13to analyze and reason a particular problem or apply legal

14principles and judgment as the circumstances and objectives of

15that person or apply legal training and skill and judgment to the

16resolution of a problem. Is that what your position is?

17 MR. KRISCH: Yes. And based on Patten and the

18other cases that we cite in our brief.

19 JUSTICE McLACHLAN: Now, was Judge Sheldon, when

20he was deciding his case, was he practicing law? Because,

21clearly, he was using his legal training and skills and his

22judgment --

23 MR. KRISCH: But not to provide -- I’m sorry.

24 JUSTICE McLACHLAN: -- to solve the problem that

25was closed.

26 MR. KRISCH: But not to provide advice for the

27benefit of another. He wasn’t providing legal advice. He was

 1 32

1providing authoritative ruling.

2 JUSTICE McLACHLAN: He was in this case because he

3was providing a declaratory judgment as to the meaning in his

4interpretation, at least, of the statute and that’s exactly what

5he was doing.

6 MR. KRISCH: But a declaratory judgment is not

7advice; it’s a judgment of the Court, Justice McLachlan. I think

8that’s an important -- important distinction to make between what

9Judge Sheldon did and what a lawyer does in their practice. I

10think, also --

11 JUSTICE McLACHLAN: So the important thing is

12who’s doing it, not what they’re doing?

13 MR. KRISCH: Both are important, Judge. The

14context of both matters, the nature of the work matters, and the

15context at which it’s done matters.

16 JUSTICE McLACHLAN: I mean, for instance, as

17Justice Borden indicated in Darlene C., in his concurring opinion,

18that when a government employee is performing his governmental

19function, he’s not practicing law. Correct?

20 MR. KRISCH: That’s what Justice Borden’s

21concurrence said --

22 JUSTICE McLACHLAN: Right.

23 MR. KRISCH: -- the majority took a slight tack on

24it.

25 JUSTICE McLACHLAN: Well, the majority didn’t

26address that issue.

27 MR. KRISCH: Well, the majority said, even if we

 1 33

1assume that what the DCF workers were doing is a fact of law

2doesn’t matter because it’s authorized by statute and I think if

3you look at other cases like the Payne case and like out-of-state

4cases cited in our brief --

5 JUSTICE McLACHLAN: But, in fact, what Judge

6Sheldon was doing was exercising his constitutional office.

7Correct?

8 MR. KRISCH: That’s correct.

9 JUSTICE McLACHLAN: And that’s what the secretary

10does when she is performing her constitutional function. When

11someone calls her with a request, that’s what she’s doing.

12 MR. KRISCH: She’s doing that but it doesn’t mean

13she’s not, also, simultaneously engaged in the practice of law.

14She is an attorney while she’s doing that.

15 JUSTICE McLACHLAN: But Judge Sheldon is not.

16 MR. KRISCH: Judge Sheldon is not; that’s correct.

17Because he’s not providing advice for the benefit of another. He

18is providing a declaratory ruling and --

19 JUSTICE McLACHLAN: You’re not telling me that the

20plaintiff didn’t hope to get advice for her benefit while bringing

21this petition?

22 MR. KRISCH: I’ll concede the benefit point

23because she wanted a ruling in her favor, but not advice. I think

24that’s an important distinction and it’s a distinction that Judge

25Sheldon draws, although not between himself and the plaintiff,

26that Judge Sheldon draws in his decision.

27 JUDGE BISHOP: Mr. Krisch, what about --

 1 34

1 JUSTICE KATZ: Mr. Krisch --

2 JUDGE BISHOP: Excuse me --

3 JUSTICE KATZ: No. Go ahead.

4 JUDGE BISHOP: What about when our chief court

5administrator, who is a judge, testifies before a committee of the

6General Assembly about the application of -- let’s say, the

7application of federal law to the conduct of juvenile proceedings

8in Connecticut. Is our chief court administrator practicing law

9by giving that testimony?

10 MR. KRISCH: I suppose it would depend on the

11content of his testimony, but if he is testifying in the way that

12Judge Sheldon found to be the practice of law, then yes.

13 JUDGE BISHOP: Then that would be unethical. I

14mean, our chief court administrator, our chief administrative

15judge for juvenile, is over there a lot because there are a lot of

16federal mandates on how juvenile proceedings must be conducted.

17So the State has to harmonize itself with these federal mandates.

18One of the ways the General Assembly finds out about this is for

19either the chief administrative judge for juvenile or the chief

20court administrator to go over there and tell them. You know, by

21your reasoning, they would be practicing law and by the rules of

22judicial conduct, that would be unethical.

23 MR. KRISCH: Even if --

24 JUDGE BISHOP: Help me out of that dilemma.

25 MR. KRISCH: Even if this Court concludes that

26that would be a problem, then decides that was not the practice of

27law, there were enough other activities Judge Sheldon found to be

 1 35

1the practice of law.

2 JUSTICE SCHALLER: We found three.

3 MR. KRISCH: We found three. So, but that’s one.

4The other two would still be enough to sustain the judgment that

5she was actively engaged in the practice of law.

6 JUSTICE KATZ: My question pertains to the first

7one, which was the declaratory rulings.

8 MR. KRISCH: Yes.

9 JUSTICE KATZ: How much of your argument is

10dependent on the first one? Because I’m looking at them and

11correct me, it’s Exhibit 60 and 61 -- Exhibits 60 and 61. And 60

12seems to rely heavily on the opinion of the Connecticut Attorney

13General in its ultimate conclusion. And 61 -- my problem with 61,

14I’m interested in your response, is, according to the secretary of

15state’s testimony with regard to that, she says is a compilation

16of any arguments she had made in public about how we needed to

17change our voting machines to comply with the Help America Vote

18Act.

19 And so it was basically a compil -- it’s not

20signed. It is in writing and it’s a -- but it’s a compilation of

21many things that she’s stated in public.

22 MR. KRISCH: Well, I think the crucial thing to

23remember with those two exhibits, Justice Katz, is not just the

24exhibits themselves but the process by which they were created.

25As Judge Sheldon made fairly detailed findings about the

26collaborative process that the plaintiff, her deputy, and

27attorneys in her office went through --

 1 36

1 JUSTICE KATZ: Well, that’s my problem with one of

2them because it says, based upon the opinion of the Connecticut

3Attorney General, the secretary of state, as the chief elections

4officer for the State of Connecticut, has the ability to issue

5rulings, so forth and so on. So she’s basing her ultimate opinion

6on the attorney general who is representing her.

7 MR. KRISCH: Yes, I believe that’s exhibit 60

8and --

9 JUSTICE KATZ: Correct.

10 MR. KRISCH: -- and that does not refer to, I

11picked up the phone and called the attorney general and got his

12opinion. It’s based on an opinion issued by the attorney general.

13So one may question the authoritativeness of that as a legal

14resource, but that shows the application of some source of legal

15authority to a particular set of facts, just as in this case there

16has been some extensive citation back and forth of the attorney

17general’s formal opinion.

18 JUSTICE McLACHLAN: Mr. Krisch, was Mr. Gersten

19correct when he indicated that the testimony of your client was

20that when she’s administering an election, she’s not practicing

21law?

22 MR. KRISCH: That was not her testimony. That was

23a response to an interrogatory, but there’s --

24 JUSTICE McLACHLAN: Is that correct?

25 MR. KRISCH: Yes. But the answer refers to the

26procedural administration of election details, not questions like

27the mayor of Hartford calling up and saying, can I close this

 1 37

1polling place?

2 JUSTICE McLACHLAN: All right. Now, 9-3 of the

3General Statutes empowers the secretary to do a variety of things,

4including issuing declaratory rulings, instructions, and opinions

5and they’re presumed correctly interpreting and effectuating the

6administration of elections. So do you read that as I do, that

7the only authority that she has to issue declaratory rulings, at

8least that are binding, are those which deal with the

9administration of elections?

10 MR. KRISCH: No. I don’t read the statute the

11same way because I think there is a comma that separates those two

12clauses. I don’t have the statute in front of me but -- and I

13would note, also, that 9-4 authorizes her to respond to questions

14asked by local election officials, which is another -- another

15subject in which Judge Sheldon found her to be practicing law.

16 JUSTICE McLACHLAN: Now, is it your position that

17the duties listed in 9-4, that they are ministerial duties?

18 MR. KRISCH: Some of -- some of them certainly are

19ministerial, some of them are not. Advise local election

20officials in connection with proper methods of conducting

21elections and referenda is certainly not ministerial because the

22giving of advice by it’s nature is not ministerial, Justice

23McLachlan.

24 JUSTICE ZARELLA: Is all advice legal advice?

25 MR. KRISCH: I’m sorry, I didn’t hear your

26question.

27 JUSTICE ZARELLA: Is all advice legal advice?

 1 38

1 MR. KRISCH: No, it’s not.

2 JUSTICE ZARELLA: All right. When the secretary

3of state is providing legal services, is she violating 3-125? 3-

4125 says, all legal services required by such offices, referring

5to secretary of state and others, in boards, in matters relating

6to their official duties, shall be performed by the attorney

7general.

8 MR. KRISCH: That’s correct. I think if you read

9that statute in context, that relates to legal services provided

10in court. The attorney general, either personally or at his

11direction, provides legal services for those people in court

12proceedings and other specified proceedings in 3-125.

13 JUSTICE ZARELLA: Attorney general’s powers are

14not limited to solely going into court on behalf of agencies.

15 MR. KRISCH: No, they’re not, but the powers are

16set out in 3-125 and they deal with all the situations in which

17those legal services are provided.

18 JUSTICE ZARELLA: This statement says, all legal

19services required by such offices. Is the secretary of state

20violating that provision of 3-125 and intruding on the functioning

21of the attorney general’s office?

22 MR. KRISCH: No, she is not.

23 JUDGE BISHOP: Could I ask your opinion of the

24importance of one area of testimony?

25 MR. KRISCH: Sure.

26 JUDGE BISHOP: My question really has to do with,

27is it important on how one holds oneself out as to whether or not

 1 39

1that person is, in fact, actively engaged in the practice of law?

2We heard -- there’s testimony that we read, for example, with

3respect to the secretary’s filings for this client security fund

4for, I think, three years and what she indicated she was not

5engaged in the practice of law as an occupation. There’s one year

6with respect to the occupational tax which -- I think it was the

7year 2000, I did not work or was not employed as an attorney. Is

8that a red herring in terms of our analysis or is it important in

9assessing whether one’s practicing that one does or does not hold

10oneself out as practicing?

11 MR. KRISCH: It is a red herring, Judge Bishop.

12If you look at 2-44(a), there are separate subsections about the

13ways in which you can be engaged in the practice of law, one of

14which is if you hold yourself out as an attorney, but another

15completely separate one is the giving advice or legal counsel to

16people.

17 JUDGE BISHOP: Well, so that one holds oneself out

18as not practicing sounds like it could be relevant.

19 MR. KRISCH: Well, she didn’t say, I’m not a

20lawyer.

21 JUDGE BISHOP: I think --

22 MR. KRISCH: She just didn’t positively say, I am

23a lawyer.

24 JUDGE BISHOP: No. I think what she checked off

25was on the client security fund, I am not engaged in the practice

26of law as an occupation, and on the occupational tax form, just

27one year, I did not work or was not employed as an attorney.

 1 40

1 MR. KRISCH: The client security fund form, of

2course, she corrected --

3 JUDGE BISHOP: I know, that was later.

4 MR. KRISCH: -- subsequently. Subsequently. I

5think, also, it’s important, as Judge Sheldon noted, to look at

6functionally, what has she been doing, not what box did she check

7on a form.

8 JUDGE BISHOP: My question was only, what’s

9important or not about how one holds oneself out?

10 MR. KRISCH: I think that is not -- that is not

11crucial to the decision in this case. I’m gonna yield the rest of

12my time to Attorney Horton. But I do want to conclude by

13reminding this Court, again, about the presumption of eligibility.

14 So long as this Court has any doubt about whether

15Judge Sheldon correctly construed 3-124 and applied it to the

16facts of this case, the ultimate decision about who should be our

17attorney general is one that the voters should get to decide on

18election day with the broadest possible field of choices and,

19concurrently, that my client should have the opportunity to

20maintain her eligibility for that office and run for that office.

21 JUSTICE PALMER: Mr. Krisch, I have one more

22question, without eating into Mr. Horton’s time here. As I

23understand it, your definition of practicing law broad -- sort of

24broadly stated, would be the giving of legal advice for the

25benefit of another. Is that fair?

26 MR. KRISCH: Yes.

27 JUSTICE PALMER: Okay. Take a situation where a

 1 41

1radio personality who has a talk show, is a talk show host, is a

2lawyer and recommends to his listening audience or her listening

3audience that you should never speak to the police without a

4lawyer. That’s his or her legal advice to the assembled multitude

5listening to this person, probably not someone who had a very

6large audience if that’s all he had to say or she had to say, but

7let’s assume, I mean, is that kind of activity where you might, in

8the broadest sense, say that he or she is giving legal advice for

9the benefit of another. Is that practicing law?

10 MR. KRISCH: Yes. And if that statement proves

11detrimental to somebody, that radio personality should be

12sanctioned for it.

13 JUSTICE PALMER: So that person who does that,

14makes these statements on occasion, normally the person is

15involved in political matters, but on occasion makes a statement

16like that and has this program for five or eight years, that that

17person can include that five- or eight-year period as time that

18would count toward his or her being qualified to be attorney

19general.

20 MR. KRISCH: I think it would depend, again, on

21the distinction of information -- to be providing people with

22information and providing them with advice that you arrived at by

23the process of applying your legal training and skill to a set of

24facts. So if he simply said, you know, I have this information

25for you, no. But if he -- if he engaged in the process that Judge

26Sheldon found the plaintiff engaged in when she provided advice,

27then, yes, absolutely.

 1 42

1 JUSTICE ZARELLA: You think that same person would

2define themselves or their profession or occupation as being an

3attorney?

4 MR. KRISCH: No. They would call themselves a DJ

5and my client called herself the secretary of the state.

6 JUSTICE ZARELLA: But in your brief, you suggest

7that practice is related to an occupation or a profession, holding

8herself out as your occupation or profession. This -- this -- let

9me back up a little. Why doesn’t the ten-year requirement conform

10what active practice of law means? What is the point of ten years

11if you can only -- if you can qualify by doing relatively little

12in the practice of law, as you define it over a course of ten

13years but if you concentrate and make it your full-time occupation

14for five years, that isn’t good enough? I can’t understand how

15that would be the legislature’s intent.

16 MR. KRISCH: Well, there are several reasons why

17it is the legislature’s -- or would be the legislature’s intent.

18You have to understand that ten years could also modify at the bar

19of this state. They very well have not wanted some -- I was gonna

20say Massachusetts, but I better think better -- some New York

21interloper to come in and run for attorney general without having

22been a member of the bar of this state and practice at the bar of

23this state for ten years.

24 At the bar of this state, read properly, and this

25is set out very clearly in Judge Sheldon’s decision, refers to the

26bar of Connecticut as a whole, not the literal bar separating the

27courtroom there. And, so, being a member of the bar in

 1 43

1Connecticut, practicing at that bar, the general bar, may have

2been important to the legislators who passed the statute in 1897.

3Again, that’s just one possible reading of the statute that would

4allow -- that would be construed in that fashion.

5 JUSTICE ZARELLA: But it’s ten years active

6practice.

7 MR. KRISCH: At the bar of this state.

8 JUSTICE ZARELLA: At the bar of this state.

9 MR. KRISCH: Correct.

10 JUSTICE ZARELLA: Why doesn’t the ten years in

11active inform what the meaning of practice is? And vice versa?

12 MR. KRISCH: I’m not saying that that’s an

13irrational reading of the statute, Justice Zarella. All I’m

14saying is there are other possible readings of the statute and

15when this Court has its choice of more than one possible,

16reasonable reading of the statute, it must choose the one that

17favors eligibility rather than ineligibility.

18 JUSTICE ZARELLA: Well --

19 JUDGE BISHOP: Mr. Krisch, can I go back to

20Justice Palmer’s question about the talk show guy --

21 MR. KRISCH: Certainly.

22 JUDGE BISHOP: -- who tells the -- you know, don’t

23talk to police officers. So if that person’s not a lawyer, then

24that person’s guilty of the unauthorized practice of law?

25 MR. KRISCH: If they provide legal advice to

26somebody --

27 JUDGE BISHOP: Well, no --

 1 44

1 MR. KRISCH: -- yes.

2 JUDGE BISHOP: -- if the phone call is -- you

3know, it’s from a phone call and the person says, never talk to

4the cops without talking with the lawyer first. Your answer to

5Justice Palmer was, that was practicing law. So I’m assuming the

6person’s not a lawyer and, therefore, that’s the unauthorized

7practice of law?

8 MR. KRISCH: Yes.

9 JUDGE BISHOP: Okay.

10 MR. KRISCH: If the court has no further

11questions, I will yield what is still 12 minutes, amazingly, to my

12co-counsel.

13 MR. HORTON: Good afternoon, Your Honors. I’m

14Wesley Horton and I am going to change the subject. This statute

15is clearly unconstitutional. The -- I have three major responses

16to the State’s brief and the first one has to do with the word

17office in the constitution. The State’s position is that office

18means the offices that existed in 1818 and the analogy they have

19is to article 1, section 10, and article 1, section 19, and

20specifically cases such as jury trial cases.

21 But I told Mr. D’Auria I was going to mention this

22case today, the Evans v. General Motors cases, concerning jury

23trials. And it doesn’t say, did a jury trial exist at that time

24concerning that precise cause of action? It said it had to be,

25quote, similar in nature to a cause of action that existed in 1818

26that would have been tried to a jury. That’s the Evans case, 277

27Connecticut 496.
 1 45

1 Now, all six of the elected-for-four-years, state-

2constitutional officials are all lumped in a group in article 4,

3section 1, and in article fourth, section 4. They all have four-

4year terms. They’re all elected by the public. They’re all

5executive-branch officials. And the Constitution in 1818 says,

6shall be eligible to any office, meaning any constitutional

7office, in the state. How can that not include the attorney

8general?

9 And I thought there was -- it came and went very

10fast, but Judge Bishop elicited a very important concession I want

11to make sure sunk in, from Mr. D’Auria. He said, so, the only

12restriction on the consti -- the only exception to the

13constitutional exception is this 3-124. If more qualifications

14for the attorney general come in now, they clearly are

15unconstitutional under Article 6, Section 10. That’s very

16important. Isn’t that bizarre?

17 In other words, what he’s saying is, you can’t

18have any constitutional -- you can’t have any statutory conditions

19on the other five offices. You could only have it on the attorney

20general and it’s frozen as to what the conditions are for the

21attorney general as of 1970.

22 Now, the other point I wanted to make is --

23 JUSTICE PALMER: Mr. Horton?

24 MR. HORTON: Yes.

25 JUSTICE PALMER: I didn’t understand Mr. D’Auria

26to make that argument, but maybe -- I mean, that’s -- I think

27maybe the best way to deal with it is with Justice Norcott’s

 1 46

1permission, if Mr. D’Auria needs a minute or so to respond --

2 MR. HORTON: Oh, sure.

3 JUSTICE PALMER: -- but I just didn’t understand

4that that was his argument. I may be wrong about that.

5 MR. HORTON: I -- I’m -- I read his response to

6Judge Bishop’s question to be that if the legislature enacted

7other requirements for the attorney general now, other than what’s

8in article -- in the constitution, that those would be

9unconstitutional.

10 JUDGE BISHOP: That’s not what I heard, Mr.

11Horton.

12 MR. HORTON: Oh, I’m sorry.

13 JUDGE BISHOP: No, actually, I heard him say that

14it would be amenable to amendment.

15 JUSTICE McLACHLAN: Yes.

16 MR. HORTON: Oh, all right. Then, I’m -- I -- I

17-- I’m sorry, I misread it.

18 JUSTICE PALMER: I think he said quite the

19opposite.

20 MR. HORTON: Okay. Well, then I dis -- then it’s

21not -- not only is it not a concession, that can’t possibly be.

22In other words, the -- I’m sorry. I read -- I read his answer

23exactly the opposite from the way it is. But that can’t possibly

24be that way. How can you possibly say, the attorney -- that goes

25back, then, to his argument that office in 1818 can’t be the

26attorney general’s office because it didn’t exist at that time?

27But think -- I mean, that’s the sort of argument -- freedom of

 1 47

1speech wouldn’t apply to the internet. I mean, that can’t

2possibly be right.

3 The question is whether -- is the office of the

4attorney general similar in nature to another state constitutional

5office the people elect for? I don’t see how he can make that

6argument and I agree with Your Honors that if -- if what he

7actually said was you could have all sorts of statutory constrict

8-- restrictions on the attorney general now, that doesn’t make any

9sense that that would be so after 1970, much less after 19 --

101818.

11 But the other point he did -- we talked about

12earlier today is that the exception clause con -- after 1970

13continues to apply to the first clause, which means that there’s

14no change of any significance to this case in article 6, section

1510, since 1818. Consequently, all this discussion about -- all

16this history of the attorney general’s office since 1890’s is, in

17my opinion, totally irrelevant to this case because that history

18only informs us of the meaning of article 4, section 1. That was

19the attorney general provision in 1970. Nothing was done relevant

20to this case concerning article 6, section 10, in 1970 or in 1980.

21 So the history we’re talking about here only

22informs us of article fourth, section 1, and article fourth,

23section 1, doesn’t even address this subject. The only section

24that addresses this subject is article four -- article sixth,

25section 10, and, therefore, the relevant constitutional history,

26Your Honors, is what happened in 1818 and what happened before

271818.
 1 48

1 Now, we know that there was no debates on the

2subject in 1818. We also know that the federalist papers were

3widely distributed well before that time and surely, our founding

4fathers had to have known about the federalist papers and the

5debates in the state constitutional conventions that are discussed

6in some detail in not only Justin -- Judge Blue’s opinion, but

7also by the United State’s Supreme Court in Powell v. McCormack

8and in the Term Limits cases. So it seems to me that by his

9agreeing properly, that the last clause applies to the first

10clause, not to the middle clause, he’s making all the history from

11the 1890s to 1970 irrelevant.

12 The other point I want to make is -- the third

13point I want to make has to do with the word eligible. And he

14says eligible is ambiguous and I have two -- three responses to

15that: one is it’s not ambiguous when you have eligible along with

16the exception clause because it’s saying every elector who has

17attained the age of 18 shall be eligible to any office in the

18state except in cases provided for in the Constitution.

19 Now, the only state today that has a

20constitutional provision similar to our article sixth, section 10,

21is Minnesota and Minnesota has seen no ambiguity in that language

22whatsoever and there is -- and there’s a backup argument. All

23right. That’s my second point, the backup argument.

24 In the 1800s, it doesn’t exist today, there was a

25Virginia provision like this that was construed in the case that

26all sides have cited in which they have another implied exception

27in addition to except in the Constitution and that is if it’s

 1 49

1necessary, essential, to the use of the office and -- and

2necessary constitutionally in a case like this possibly could mean

3that attorney general implies that you’re an attorney, but that

4doesn’t get the state or republican party anywhere here because

5she’s clearly an attorney. So that -- so either of those answers

6doesn’t win the case for them.

7 The third point I would make is, I cited a whole

8bunch of other cases for the proposition -- not just the one Mr.

9Krisch mentioned about, you read statutes or you apply statutes

10liberally in favor of -- of the right to run. That also applies

11to construing constitutions. So it has to do, for example, with a

12discussion, you know, for statutes. You can say something’s the

13unauthorized practice of law in one context but not in the context

14if you’re running for office.

15 In other words, there’s more than one way, both

16statutorily and consti -- and it depends on the context. And I

17think -- I mean, that would be an answer, I think, to Judge Bishop

18and Justice Zarella about, well, would the chief court

19administrator be violating a stat -- you know, practicing law and

20you can be practicing law in one context, if you’re running for

21public office, and not violating another context.

22 It would also apply to Justice McLachlan’s comment

23about a judge practicing law. But that also applies to

24constitutions. And my point about the constitution is that you

25read constitutional provisions liberally to allow someone to run

26for office.

27 Now, the State cites no cases to the contrary

 1 50

1anywhere. What the State says is that line of cases is irrelevant

2in Connecticut because we have a presumption all statutes are

3constitutional. Well, all states have that presumption. That’s

4common. Everyone has that. The problem is it’s like construing

5statutes.

6 You know, you can pick one presumption off the

7wall and then there’s another one that says exactly the opposite.

8You know, at the end of the day, you’ve gotta decide clashing

9propositions and the State’s uniformly -- when they have these

10clashing propositions, they uniformly say, that’s when we say in a

11democracy, the right of the public to decide who is going to

12represent them shall prevail and that applies to our

13constitutional argument and it applies to our statutory argument.

14 Thank you, Your Honors.

15 JUSTICE NORCOTT: Before you begin, Mr. Gersten, I

16just want to ask Attorney D’Auria, did you want to have a minute

17for rebuttal, counsel, after Mr. Gersten?

18 MR. GUEST: He can go first.

19 MR. D’AURIA: Unless the Court has questions -- I

20mean, I --

21 JUSTICE NORCOTT: I would allow it if you want.

22 MR. D'AURIA: Sure. Well, you want me to do it

23now?

24 The only thing I’d say in rebuttal is, I think --

25the question Mr. Horton asked this Court to address is whether in

261818 or 1965 the term office of the state intended to implicate

27future constitutional offices. Should the framers be credited

 1 51

1being that pressing to think that there might be some? There

2never were between 1818 and 1965. The question we ask, I think,

3is the proper way to address the question, which is, in 1970 when

4the office was established under the Constitution, was it intended

5at that point to become an office of the state?

6 And I agree with Mr. Horton that the jury trial

7cases are very illustrative in this case because in those cases --

8well, the analogy’s not perfect but the jury trial cases in the

9open court’s provisions cases asked -- say that that language

10doesn’t project the future. You need to look to the future and

11say, what happened then when we created a new cause of action? Is

12it similar in nature under jury trial -- is it similar in nature

13to ones we knew in 1818? So, too, in this context.

14 Is the office that was created in 1970 similar in

15nature to the one -- to the ones that pre-existed in the

16Constitution? The answer is no. It has all of the history and

17the duties and the responsibilities and the requirements were

18always statutory. So that’s how it’s distinct and that’s how

19there clearly was no intention in 1970 to implicate article sixth,

20section 10. We agree on that much, no mention in 1970.

21 Thank you, Justice Norcott.

22 JUSTICE NORCOTT: Thank you.

23 MR. GERSTEN: I’d like to make just a few points.

24One point that we differed on with the State -- and we’re relying

25on Judge Levine’s decision regarding the constitutionality issue

26and that is whether or not there’s a serious question, even after

27Barnes, whether the office of the attorney general is, in fact, a

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1constitutional office. I think that Judge Levine’s decision said,

2no it’s not.

3 MR. HORTON: Your Honor, I object to this being

4brought. It hasn’t been briefed and I didn’t know it was coming.

5 MR. GERSTEN: I’ll stop. It was briefed below.

6We argued it below and at that time, Mr. Horton said it’s

7ridiculous.

8 JUSTICE NORCOTT: Why don’t you proceed.

9 MR. GERSTEN: I apologize for that, Mr. Horton.

10With respect to the claims made that -- I would ask you to take a

11look at the statute and fundamentally use common sense. Whether

12it’s done for purposes of satisfying the liberal construction or

13done for any purposes, the common sense is that when the

14legislature adopted this statute, it intended to have someone who

15was, in fact, actively practicing law.

16 In this particular case and with these particular

17facts, we have -- fact finding is done at what I’ll call a 30,000-

18foot level about some generalities that she does and when it gets

19down to basic examples over a 12-year period, we don’t have very

20much to work with at all, including those exhibits that Justice

21Katz pointed out. And that points out the fact that there’s a

22very slim read here for this plaintiff to marshal all her evidence

23and say, I am, in fact, engaged in the active practice of law.

24And if you take her facts and apply it a few steps out, almost

25anyone qualifies, including that radio announcer.

26 And the problem is that from a perspective of

27whether it’s sanctionable or not, is someone accountable -- is

 1 53

1someone who’s practicing law as we all know it accountable to

2anybody if they give bad advice? And under the plaintiff’s theory

3here, no, I can’t be, because if I am, it might be interfering

4with my office, although they indicated no, she can be sanctioned,

5but she won’t be interfering with her office. It’s -- it’s --

6where does it end?

7 And as a consequence, we would ask that you take a

8very careful look at Judge Sheldon’s opinion and reverse it and

9vacate it because the plaintiff did not provide proof -- enough

10proof to support her case.

11 Thank you.

12 JUSTICE NORCOTT: Counsel and ladies and

13gentlemen, we all know there is a certain sensitivity to time in

14this case, and in that regard, I would ask counsel to just remain

15in the courtroom until further notice by -- through the clerks, if

16you would, please.

17 (The Court takes a recess.)

18 JUSTICE NORCOTT: Thank you counsel. The Court

19has concluded that: 1) the trial court correctly determined that

20the plaintiff has standing and the issues before the court were

21ripe for adjudication; 2) the trial court improperly determined

22that the plaintiff satisfied the requirements of General Statute

23Section 3-124; and 3) we conclude that General Statute Section 3-

24124 is constitutional.

25 Accordingly, the judgment of the trial court is

26reversed and the case is remanded to the trial court with

27direction to render a declaratory judgment that the plaintiff

 1 54

1fails to satisfy the requirements of General Statutes 3-124.

2 A written opinion will follow. This is the

3unanimous decision of the Court.

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1 DOCKET NO. HHD SC18612 : SUPREME COURT

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3 SUSAN BYSIEWICZ : STATE OF CONNECTICUT
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5 V.
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7 NANCY DINARDO, ET AL. : MAY 18, 2010
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13 C E R T I F I C A T I O N
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15 I, Kimberly Silverman, do hereby certify that the
16 foregoing pages are a true and accurate transcription, to the
17 best of my ability, of the audio recording and notes of the
18 above-referenced case heard before the aforementioned Honorable
19 Supreme Court Justices of Connecticut, on the 18th day of May,
20 2010.

21 Dated this 18th day of May, in Hartford, Connecticut.

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25 ____________________________________
26 Kimberly Silverman
27 Court Recording Monitor

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