When final arguments began Tuesday morning in Secretary of the State Susan Bysiewicz’s Superior Court trial, it quickly became clear that Tuesday wouldn’t be the case’s final day.
Judge Michael Sheldon announced that he would permit a second day of final arguments Wednesday — in which lawyers could potentially offer “subject matter” arguments about whether the court even needs to issue a ruling, which Bysiewicz is seeking, on whether she is eligible to run for attorney general.
Beyond that, Sheldon said he would accept additional, short legal briefs to be submitted by the parties. He didn’t give a deadline during the morning session, but one of the lawyers in the proceeding thought it might be Friday, which would mean no decision would be issued this week.
Whether the Bysiewicz case will serve as some kind of legal landmark is uncertain, but one thing seems sure: It has served up an abundance of fodder for lawyers’ debate — and Sheldon is an unusually patient judge who seems willing to hear all of it. The length of the closing arguments in this case is becoming extraordinary.
Starting at 10:12 a.m., lawyers for Bysiewicz and the state Republican Party argued back and forth for about two-and-a-half hours, periodically being questioned by Sheldon on points of law. It was scheduled to continue Tuesday afternoon on the constitutionality of the 10-year “active practice” requirement — which Bysiewicz wants thrown out as unconstitutional.
Neither side had the clear upper hand — and Sheldon indicated to each that he didn’t buy significant parts of what they had been saying since the trial began last Wednesday.
Here is what the case is about: Although Bysiewicz has been registered as an attorney for 24 years, she held two lawyers’ jobs for a total of only six years in the state before winning her current office more than 11 years ago.
She seeks a ruling that those 11 years as secretary of the state count as the “active practice” of law — based on reasons including her continual advice in phone calls to local officials about election laws, and her testimony before the General Assembly about such laws. She even claims she’s practicing law when she holds a press conference.
Sheldon indicated skepticism about Bysiewicz’s broad claim that she qualifies under the statute by virtue of being registered as a lawyer in good standing for 24 years.
He said it seems that a lawyer has to do more than that to be considered in “active practice” — potentially good news for the state Republican Party, which is opposing her in the case and arguing that she’s not qualified.
But the potential bad news for the Republicans was that Sheldon also said he thinks it is possible that Bysiewicz could practice law by draftiing, or participating in the drafting of, legal opinions that state statutes say her office is authorized to issue in its role as the supervisor of state elections.
And so a big question, it appears, is whether each side can convince Sheldon that the record of evidence in the two days of trial testimony — mostly by Bysiewicz — establishes her participation in collaborative efforts among lawyers in the office to issue such opinions.
The Republicans’ lawyer, Eliot Gersten, said no — that the evidence introduced doesn’t prove that. Bysiewicz’s lawyer, Daniel Krisch, said it does.
Another potential plus for Bysiewicz was Sheldon’s repeated comment that Connecticut law and past cases have not established a “quanititative” standard for how much legal work an attorney must have peformed during any given period of time to be considered as engaged in the “active practice” of law.
The final arguments will go on for another day, and briefs will be written, before Sheldon grapples with the decision.
Updates later. Click here to read another blog post relative to final arguments.