Tuesday, April 06, 2010

Bysiewitz Deposed

The election for attorney general has become, to put it politely, a mess.

Attorney General Richard Blumenthal – afflicted with the bizarre notion that suits against Connecticut businesses actually increase business in the state by providing a level playing field – had decided, after twenty years of enhancing business activity in the state, to move on to greener pastures in the U.S. Congress.

Blumenthal’s abrupt exit gave everyone in Connecticut a view of how term limits would enhance politics in the state. U.S. Sen. Chris Dodd decided – some think after polls showed him tanking badly – to retire, and Blumenthal laid claim to Dodd’s his seat, after which Secretary of State Susan Bysiewicz announced she had second thoughts about running for governor and made a pitch for Blumenthal’s seat. Her seat was left open, and the political musical chairs continues; the incumbency ice flow breaks; spring is here at long last

Almost immediately, Bysiewicz ran into a brick wall. Questions were raised concerning her qualifications for attorney general, an issue now in the process of being decided by Connecticut’s Supreme Court. The proceedings, a five hour interrogation of Bysiewicz, were videotaped, and the air is now cluttered with Freedom of Information demands to make the proceedings public, which may not help Bysiewicz’s long term political strategy. Rumor has it that Bysiewicz intends to bide her time as attorney general and run against Sen. Joe Lieberman when he come up for a flogging at the end of his term. Asked if she intended to surrender her seat as attorney general to follow Blumenthal’s path to the U.S Senate when Lieberman came up for re-election, Bysiewicz’s answer to the question was dodgy.

It all sounds very much like a Greek tragedy, with Zeus bawling from his throne, a scheming Hera entangling everyone in complex subplots, and a few hapless human guards patrolling the walls of Troy wondering at the ominous cloud, now no bigger than a hand, gathering on the horizon.

The Bysiewitz deposition took five grueling hours on the first day; she returned on the second day for more barbed interrogatories, poor thing.

Citing “lawyers closely watching the case,” The Connecticut Law Tribune reported:

“Her deposition in the politically drench proceeding is apparently going very badly… In mid-stream, her lawyers on Monday sought to have a judge impose a protective order forbidding the public release of the deposition video or transcript… She has reportedly been forced to admit that she had never authored a legal brief…Furthermore, according to second-hand reports from lawyers connected to the case, she acknowledged she had never participated in a legal strategy session for a case. The sources said Bysiewicz was asked under oath to list the times she had officially appeared in a courtroom. Her answers were minimal -- in law school, when being sworn in to the bar, and when representing herself in a small claims action.”

Byseiwitz’s default position is to argue that the state statute prescribing ten years of active legal experience as a requirement for the attorney general position is in conflict with the state constitution, which lists only age as a requirement, and here she appears to be on solid constitutional ground. In any conflict between the constitution and a statutory regulation, a court could only embarrass itself by ruling the constitution unconstitutional. And if the constitution cannot be unconstitutional, the statute must be unconstitutional.

The politically astute Blumenthal answered a demand that he release transcripts of the deposition video in his custody under a Freedom of Information request by pointing to a possible gag order from the presiding judge. Bysiewicz, after consulting the relevant laws on the matter, consented to the release of the transcripts, which Blumenthal will copy and disperse on Wednesday.

While Bysiewicz appears to have taken a nose dive in the media, her polling positives remain respectable, perhaps an indication that a majority of folk in Connecticut have come of age at a time when much of the media has lost its vigor.

8 comments:

Fuzzy Dunlop said...

Here's an important question that Connecticut voters need to ask themselves.... would you hire a lawyer to litigate a matter for you who has never written a legal brief? Because that's what Susan is asking us to do.

Don Pesci said...

Fuzzy,

I’ll be making up the figures, but they’ll be close. Blumenthal’s office has about 100 lawyers in it. You could reduce it by 2/3rd and nothing would change, because only about 4-6 lawyers are litigators who appear in court and actually try cases. The rest of them sit around watching the four fill pot holes (kidding),

The attorney general position itself is largely administrative and ceremonial. With a 100 lawyers at my back, I could do that job. Even Susan Bysiewicz could do it.

The real problems are these: 1) The operation is too big; cut staff by 2/3rd, 2) It has become a money making operation; cut that out, 3) The office statutorily was designed to provide legal help to state agencies; historically, the position devolved from the “king’s lawyer” in colonial times; get back to core functions; if the people need lawyers, there are plenty of them out there, 4) detach celebrityhood form the position; no more strutting before the cameras; no more false affidavits; no more press releases that sound as if they had been written by Edgar Allen Poe, 5) term limit the office.. I’ve left out 6,7,8,9, and 10.

That should fix things.

Don

Anonymous said...

Don, I am curious about your point #4, specifically the false affidavits part. I don't remember hearing about this on the news, would you be able to point me somewhere that would give some more details on this?

Anonymous said...

again with the false affidavits, don. Has any court ever agreed with you on that?

Don Pesci said...

In the New England Pellet case, discussed here -- http://donpesci.blogspot.com/2010/01/blumenthal-devil-and-details.html
-- the affiant claimed that the principals of the company either had or were about to fraudulently transfer assets; this was the sole claim in the affidavit that enabled Blumenthal’s office to impound the assets of the company, effectively putting it out of business. That affiant was deposed by the lawyer in the case. During the deposition, he swore under oath that he had no reason to believe that a fraudulent transfer had been made or was about to be made. An inspector in Blumenthal’s office, he never examined bank records to determine his assertion in the affidavit and never read Connecticut’s fraudulent transfer act. There are only two possibilities here: The affiant had submitted a false affidavit; or the affiant had committed perjury in his deposition. In the Hoffman case, a Superior Court judge affirmed that Blumenthal had presented a fatally defective affidavit to seize assets owned both by Mr. and Mrs. Hoffman. The NEP case is on the point of being settled, and the Hoffman case is still percolating through the courts. In the Hoffman case, the trial court dissolved attachments made by Blumenthal’s office because the affidavit was defective. That case is discussed here: http://donpesci.blogspot.com/2009/05/blumenthal-vs-hoffmans.html

Don Pesci said...

This is what a judge in Maine said about the affidavit in the Hoffman case:

“The plaintiffs assert that Fitzsimmons (the affiant) swore to a false affidavit in connection with attaching Maine real estate. Such behavior by a state assistant attorney general—if it occurred—is deplorable, and could be subject to criminal penalties, bar discipline and other sanctions. A substantive due process violation is sometimes defined as behavior that is “shocking” and “egregious,” and certainly as those terms are used in plain English, the conduct asserted here
on the part of a state lawyer is shocking and egregious” The case in Maine is ongoing.

Fuzzy Dunlop said...

Don,
In a perfect world cutting 2/3 of the attorneys over there might not be such a bad idea. But in this economy, your just adding a crapload of attorneys to the unemployment rolls.

One interesting thing in regard to your fourth point though... I wonder if the AG should actually be eliminated as a constitutional office, and turned into something more akin to the chief state's attorney, where the office holder is nominated instead of elected, and a term limit is imposed. That might go a long way to ending the celebrity showboating.

Don Pesci said...

Fuzzy,

In a hyper regulatory environment in which regulations are complex, one doesn’t have to worry too much about keeping the lawyers busy. The problem with the AG’s office is that its boundaries are not limited by constitutional or statutory laws and regulations. Its modern form, sprawling and unrestrained, was invented by Lieberman and Blumenthal. It might help if the office were appointive, because then the appointing authority, presumably the governor, would be able to hem in outrageous activity through the appointment. If the form of the office is unordered by constitutional provisions, democracy tends only to increase the power and scope of the office, which is exactly what has happened here. Term limiting the office certainly would help.