Sunday, October 31, 2010

Dean vs. Courant

The Hartford Courant, where ink stained wretch Colin McEnroe parks his pen mightier than the sword, spiked his Sunday column on Martha Dean.

McEnroe understands completely. The Courant bars opinion pieces that appear after the first Sunday before an election, mostly for reasons of fairness. A target of an opinion printed a mere two days before election, in this case Dean, would not have sufficient time to answer any manifestly unjust criticisms within such a short time frame.

While McEnroe missed the bell, other political writers at the Courant, not one of whom has during the entire campaign written a commentary that might be considered favorable to Dean, were not so unfortunate, and there are some, Dean among them, who have reason to suspect that all opinions pouring fourth from the Courant concerning Dean are manifestly partisan.

In any case, McEnroe’s column very likely would have been redundant: The Courant already had endorsed Dean’s opponent, George Jepsen, and launched a broadside against a matter of some moment: A few days ago, after the Supreme Court had issued its written opinion on Susan Bysiewicz’s eligibility for the office of attorney general, Dean had filed a motion with the court contesting the eligibility of Jepsen.

Before I proceed, I must insert here a brief confession. I have written columns and blogs myself protesting the Bysiewicz decision. Connecticut’s Supreme Court may have been wrong when it ruled in the Bysiewicz case that a statute requiring prospective attorneys general to be an "attorney at law of at least ten years' active practice at the bar of this state" trumps the state constitution itself, which provides only an age qualification for the position. But the court has ruled, and that’s that.

The court in its recently published decision interpreted the statute, which specifies that prospective attorneys general must be “attorneys at law of at least ten years active practice at the bar of this state,” as indicating that the attorneys mentioned in the statute should be attorneys “with at least some experience litigating cases in court.” This line of interpretation alone is unclear on two points: The decision does not tell us how much experience is “some” nor what kind of experience would qualify a lawyer to be attorney general. The Bysiewicz ruling is fuzzy around the edges and soft in the middle – which means, the court and Connecticut could only benefit by yet another suit forcing it to clarify the inherent ambiguities in its decision.

Such a suit is precisely the one brought by Dean. And for that reason the suit should have been welcomed by all friends of justice who think laws and Supreme Court rulings should be general, clear and fair. The Hartford Courant, to judge by its editorial reproving Dean for bringing the suit, falls outside this category.

“Ms. Dean says Mr. Jepsen lacks experience as a litigator. She has asked that his name be removed from the ballot and that the secretary of the state be prohibited from certifying the attorney general's race until her lawsuit is resolved.” The editorial, printed four days before election and therefore within its own parameters, asks “Does she [Dean] have a case or is her lawsuit a desperate 11th-hour stunt?” And the paper, long before a decision is due from the court, precipitately decides that the suit is an 11th hour stunt.

McEnroe, incidentally, disagreed with the obiter dictum of his paper in an earlier blog post, placing much of the blame for Dean’s “precipitous” suit on the court: “I agree, by the way, that much of the fault lies with the Connecticut Supreme Court. The Court ruled from the bench in May in the case of Bysiewicz v. Dinardo. Then it waited an inexplicable five months to issue a full decision, which finally came Oct. 22, less than two weeks before the election. Come on, guys, get your homework in on time! The decision itself was so muddy as to make it at least understandable that Dean saw it as a potential wedge to game into Jepsen's candidacy.”

The paper raises two easily answered objections: 1) Dean was precipitate in bringing the suit so close to the election (see McEnroe above); 2) By so doing she has revealed herself as being motivated principally by politics.

It is impossible to shake this last charge. Both Dean and Jepsen are engaged in a political campaign, and it is at least reasonable to suppose that politicians so engaged do things for political reasons – in addition to other perhaps more compelling reasons. But the question opinion makers should be considering is not “Do politicians do things for political reasons,” but rather, “Is Dean’s suit necessary?

It is.

16 comments:

mccommas said...

It also makes him look unqualified. Even if it did not have merit, bringing the suit is good politics.

Shouldn't he have been expecting this given Bysiewicz’s credentials problem?

Anonymous said...

Regarding the character and legitimacy of the Hartford Courant editors and staff ... Sarah Palin spoke today about the revelation that journalists with a CBS affiliate in Alaska were caught on tape conspiring on how to report the news in a way that helps to smear and take down GOP Senate nominee Joe Miller. Palin called these journalists "corrupt bastards." That about sums up my feeling toward the Courant editors and reporters.

Bruce Rubenstein said...

Dean never made mention of Jepsen's credentials all throughout the campaign,but could have,right after she beat Garber in August.In August as you all remember, the issue of Sue B was before us and Dean could have also made mention of Jepsen, but didnt.Instead she waited until the written decision by the Supreme Court came out. I think bringing the suit at this stage, makes Dean look desperate.I bet her polling shows her way down..no surprise here.

Fuzzy Dunlop said...

I posted longer thoughts on this over on Mcenroe's blog, but Bysiewicz v. Dinardo is simply awful, and I'm glad people are finally criticizing it. I was initially flabbergasted by Dean's lawsuit, and still think it is jurisdictionally deficient, but it almost certainly the natural result of the Supreme Court for issuing such a poorly reasoned opinion.

The Supreme Court has now crept into the province of voters, and we should all be angry at their presumptuousness. Whether a candidate for attorney general has the experience to effectively litigate ought be decided by we, the people, in the voting booth. Qualifications to run for office need to be minimal, and limited to age and residency. The authors and tinkerers' of our state constitution realized this, and were perhaps cognizant of the danger of imposing qualifications that are subject to interpretation.

Following Bysiewicz v. Dinardo, our candidates for attorney general will be vetted by judicial fiat. Yay.

Don Pesci said...

Fuzzy,

I agree heartily with what you say and am happy you thought to asperse Colin with your wisdom.

The question rarely asked by politicians – among whom we must now count Connecticut Supreme Court justices – is: What happens if we do nothing? Appellate courts don’t have the advantage of this option, but that simply means they must be conservative in their judgment.

At some point, someone with vast administrative experience will put him or herself forward as a candidate for attorney general. Suppose a race between, say, Elena Kagan, a law professor with some administrative ability, and Martha Dean, who meets all the burdens the Supreme Court has through its recent judgment superimposed on the office. In a contest between the two, voters in Connecticut would be able to decide at the ballot box an issue that now has been decided in the courtroom. I would line up o the side of those who argue that litigator experience is not essential in that position, which is largely administrative. Some one is needed certainly to herd the lawyers, but that person need not have 10 years of litigation experience behind them.

The effect of such decisions is to create a legal closed shop that prevents entrance to a profession by requiring a false credentialism. Kagan, who has no litigation experience, is a justice of the U.S. Supreme Court for God’s sake.

Connecticut’s Supreme Court, in my opinion, for what it’s worth (not much) has been politicized by the legislature’s judicial committee. But that’s another topic for another day.

Bruce Rubenstein said...

Citizens arent qualified to decide if a lawyer has met the "actively practicing law" provision and if Fuzzy had his way and the citizens decided it, it would almost be like a barber being permitted to do surgery.The best and most logical decider of who qualifies under " actively practicing law" is best left with the lawyers Supreme Court and who actually did practice law and not as Fuzzy says, the citizens.Only someone experienced in law can judge properly what qualifies under the law as to a AG's qualifications.Correspondingly, after the lawyer/candidate has past the test of "actively practicing law" then Fuzzy is right and the citizens can then judge who among the candidates is best able to serve,by way of their vote.

Fuzzy Dunlop said...

Bruce,
I am a lawyer, and I think it's pretty damned difficult to come up with a precise definition of what "active practice of law" is.

I'm not saying there ought not be any qualification beyond residency and age; clearly, the authors of the statute intended for the attorney general to be admitted to the bar of this state. But that ought be it, you are qualified so long as you've been in good standing for ten years.

Do you want to go down to Day Pitney, the largest and most prestigious firm in the state, and tell everyone in their financial practices group that, sorry, because they do not appear in court and are not litigators, ergo, per judicial fiat, they are not actively practicing law at the bar of this state?

The Supreme Court took an extremely simplistic and myopic view of what constitutes the practice of law, particularly in the modern age. In fact, unlike the Office of the State's Attorney, which engages almost exclusively in litigation in the form of criminal trials, the Attorney General's mandate is not limited to litigation, but providing general legal counsel to all state agencies.

You are correct that average citizens can hardly evaluate someone's qualifications to be an attorney. This is why we have a professional bar organization and a board of bar examiners filled with learned practitioners and scholars. As I said earlier in this comment, I did not mean to suggest age and residency ought be the exclusive factors; the title of the office has "attorney" in it, meaning the person clearly must be qualified as one and admitted to practice in our state courts. But under your proposed paradigm, unless their name is Matlock, we will require a judicial examination of a candidate's credentials in almost every election henceforth in order to determine whether the person has qualified.

I would add that it is only a matter of strategy that Jepsen has not likewise filed suit against Dean, raising the same question. Right now he is relying on painting her lawsuit as preposterous, so it would hardly do for him to cast another stone; decorum dictates that he turn the other cheek. But if she is found to have standing to challenge is qualifications, he could almost certainly challenge hers.

And this is the danger of the Supreme Court's tortured logic. Uncertainty will prevail, and every four years we will not be secure that we are casting our vote for a viable candidate until all judicial avenues have been exhausted.

Fuzzy Dunlop said...
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Fuzzy Dunlop said...
This comment has been removed by a blog administrator.
What the Courant should have said...

An alternative take inspired by the Courant's recent editorial "Lawsuit Test Martha Dean's Credibility":

Editorial Tests Hartford Courant’s Credibility

Why didn't paper explore AG candidate’s credentials?

The Hartford Courant, purported paper of record for Hartford, has put its credibility on the line by printing an editorial a few days before the election criticizing Republican candidate for Attorney General Martha Dean, without investigating in any meaningful way whether her opponent, Democrat George Jepsen, lacks the required credentials to hold the office.

Does the paper have a point or is its support for Mr. Jepsen a desperate 11th-hour stunt? It looks like the latter.

The Hartford Courant has had ample opportunity to look into Mr. Jepsen's qualifications if it cared to consider them. It has called itself a newspaper as far back as January, but did nothing to investigate.

The paper could have looked into Mr. Jepsen's credentials in light of his repeated statements throughout the campaign, when he said things like “I am not a litigator”, “I don’t have a background in litigation”, and “I am not a litigator by nature or background." Yet The Hartford Courant remained silent.

Last week, the high court issued its written opinion in the Bysiewicz case, saying in part that the statute that requires the attorney general to be an "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."

The paper wouldn’t know if Mr. Jepsen meets this standard, as he never produced evidence and it never bothered to ask him. But Ms. Dean had the audacity to challenge Mr. Jepsen in court. The Hartford Courant therefore issued its questionable editorial almost on the eve of the election.

Many people think the Hartford Courant is "a waste of time and money." No one could be blamed for agreeing with them.

Is this how a newspaper should act?

Don Pesci said...

Fuzzy, Bruce,

This is an eye opening discussion. Both of you are very close to each other.

Suppose that the statute in question had never been written. Would this mean that candidates in the attorney’s general race would necessarily be less qualified to perform the duties of that office than they would be with the provision in place? Remembering that the office is an elective position, I would argue that it would make little or no difference. In this case, a candidate with no litigation experience but a vast experience in administration would be able to put himself before the voters and argue that litigation can always be assigned to top lawyer in the office. As a practical matter, that is what happens now. Mr. Blumenthal litigates infrequently. The candidate with administrative ability – let’s suppose he or she is a law professor – could argue, in answer to the objection that litigation experience is necessary in assigning cases, that his chief litigator is capable of deciding which cases should go to court, while he retains the deciding vote.

Now then, what is the difference between this scheme and the arrangement with the statutory provision in place?

The difference is that voters are prevented from deciding the issues mentioned above. Those decisions are made by a court that, like all political bodies, naturally seeks to employ credentialism to advance a presumed public interest.

Here is the important question: Is the statutory provision necessary and does it advance the public interest? To ask if a piece of legislation is necessary is to ask: Does the legislation avert a real harm rather than a perceived harm to the public good?

Don Pesci said...
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Bruce Rubenstein said...

Fuzzy...I am an attorney also..

I agree with you that as long as someone is in "good standing" for 10 years, that ought to meet the threshold.

I also agree that the Supreme Court decision is way to restrictive.

Bruce Rubenstein said...

Don...good questions...

I think if there was no statute then the constitutional language takes charge and the public might well have a wider choice, as the parties could then select for instance a law professor with no litigating experience to carry their banner in an election.

I continue to believe that the Supreme Court Decison is way to restrictive and that one doesnt need to be a litigator to be an effective Attorney General.

In answer to your question, the statute attempts to fix a perceived harm and I believe does not advance the public "good"

mccommas said...

Good Lord Don! You have a Chris Murphy ad on your website!

An endorsement perhaps? Or is he paying you big bucks?

LOL

Don Pesci said...

Mc,

The ad is from Google. Getting rid of ads is a little bit like getting rid of a mole. Thwack him here, he appears there. It would be easier to get rid of Murphy. I think Foley flashed by some time ago. On this site, I've tried to keep them to a minimum.