Public Defense

Does Martha Dean have a point?

By Gideon

If I’d never heard the words “attorney general” and “lawsuit” and “active practice” in the same sentence again, ever, I’d have been a happy man. Today, I am sad.

As Rick Green reports, professional whackjob Attorney General candidate Martha Dean tweeted today that she’s filed suit seeking a declaratory judgment that her opponent, George Jepsen, doesn’t qualify to be AG of CT. Yeah, this shit again:

Just filed court challenge to Jepsen’s qualifications under Supreme Court standard: trying cases & 10 yrs of active litigation experience.

It seems, though, that her suit is sparked in part by the Court’s decision in the Bysiewicz case from earlier this year. As you will remember, the supreme court issued its ruling from the bench, holding that Bysiewicz was not qualified to be AG of the state. Last week, they issued the actual decision. Here’s the crux of that decision:

We next address the intervening defendant?s claim that the trial court improperly determined that the plaintiff?s performance of her duties as the secretary  of the state constituted the active practice of law under § 3- 124. Specifically, the intervening defendant claims that, to be eligible to serve as the attorney  general under  § 3-124, a candidate must have ten years experience in litigating cases in court. The intervening defendant further claims that, even if  litigation experience is not required, the plaintiff did not have ??ten years? active practice at the bar of this state?? because she has not, on behalf of clients  and as her primary means of livelihood, engaged in conduct that required a high degree of legal skill for ten years. We agree with both claims.

There’s further clarification on that, and that’s where the problem lies:

We conclude, therefore, that, as used in § 3-124, the phrase ??attorney at law of at least ten years? active practice at the bar of this state?? means an attorney with at least some experience litigating cases in court.  Although the presumption of eligibility might require this court to conclude that an attorney who has  not practiced exclusively or even primarily as a litigator for at least ten years is qualified to hold the office of attorney general under § 3-124, the presumption does not authorize us to ignore the clear intent of the legislature that the attorney general must have some measure of experience in trying cases. Because it is undisputed that the plaintiff has no experience representing persons in court, we must conclude that she does not meet the eligibility  requirements of § 3-124.

Do you have your brain turned on tonight? Good. Then you’ve already seen the problem here. The court has established, in essence, a case-by-case standard. They have taken it upon themselves to add an element of minimum practice to the statute, without defining what that minimum is.

The trial court?s conclusion that the phrase ??at least ten years? active practice at the bar of this state?? does not require ??any particular degree of frequency or intensity?? effectively reads the ??ten years? ?? language out of the statute. Indeed, if we were to accept this interpretation literally, that would  mean that an attorney who had engaged in the practice of law in a single instance ten years earlier would be qualified to represent the state and all of its  officers and agencies in court. Although the determination as to whether an attorney has engaged regularly in the practice of law as the primary  means of earning a livelihood may be a matter of judgment, and doubts must be resolved in favor of the person seeking the office, we cannot conclude  that the legislature intended that a person with that minimal degree of experience in the practice of law would be qualified to serve as the attorney general.

What is meant by “some measure of experience”? And a lawyer who’s never been physically in court is ineligible to be AG, even if that person has actively engaged in the practice of law – in, say, a real estate practice – for 50 years? That’s absurd.

The concurrence makes the point:

In 1879, the Supreme Court provided an extensive definition of the term attorney-at-law. In Savings Bank v. Ward, 100 U.S. 195, 199, 25 L. Ed. 621 (1879), the court stated: ??Persons acting professionally in legal formalities, negotiations, or proceedings by the warrant or authority of their clients may be regarded as  attorneys- at-law within the meaning of that designation as used in this country; and all such, when they undertake to conduct legal controversies or  transactions, profess themselves to be reasonably well acquainted with the law and the rules and practice of the courts, and they are bound to exercise in  such proceedings a reasonable degree of care, prudence, diligence, and skill.?? This definition of the term attorney-at-law does not instruct, nor imply, that  an attorney-at-law must be involved in litigation. To the contrary, the Supreme Court?s definition had a broad sweep, expressly including attorneys whose  practices were transactional in nature and unrelated to controversies.

Is one trial in 10 years enough? Is one trial a year needed? Who the fuck knows. The court must have anticipated this when they wrote their decision. Or maybe not – but that’s the problem with issuing a decision from the bench after an hour of deliberation.

Now back to her suit. She alleges, in her suit, that Jepsen has admitted he has no litigation experience, that he resided out of state from 2004 to 2009, that for most of his career he held non-legal political positions or been “of counsel” or “in-house counsel”. [Others disagree.]

If that’s the case, the Supreme Court just set themselves up for another hearing. And this is why you don’t write decisions, creating rules, employing vague as shit terms. This, of course, isn’t the first time the court has written a decision it has later regretted and tried to walk it back. Let’s see if that happens this time.

Strap yourselves in, this could be fun.

Full post as published by A Public Defender on October 26, 2010 (boomark / email).