transcript of connecticut supreme court hearing in bysiewicz v. dinardo

8/9/2019 Transcript of Connecticut Supreme Court hearing in Bysiewicz v. Dinardo

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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

transcript of connecticut supreme court hearing in bysiewicz v. dinardo

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