In a quarrelsome end to an extraordinary trial, the lawyer for the Republican Party said Thursday that a judge should throw out the lawsuit in which Secretary of the State Susan Bysiewicz seeks a ruling that she is eligible to run for state attorney general.
“Waah, waah, waah! I want to be attorney general, and I’m going to get my way in court!” is how the GOP’s lawyer, Eliot Gersten, characterized Bysiewicz’s stance as plaintiff in her lawsuit against her own office and the Democratic Party, which she wants to nominate her for attorney general on May 22.
Gersten’s comment touched off an animated finale to lawyers’ arguments in the Hartford Superior Court trial that began April 14. The judge, Michael Sheldon, didn’t commit himself on when he’ll make a decision, but it won’t be this week.
Gersten said that Bysiewicz and her lawyers didn’t produce a single witness to demonstrate that anyone in state government or the Democratic Party would deny her the right to be a candidate for the attorney general’s nomination. Thus, he said, she hasn’t been aggreived legally and had no right to put everyone through the turmoil – he used the Yiddish term “mishigas” – of the lawsuit and trial.
Gersten said Bysiewicz wants to use Sheldon as a political tool – by showing off his ruling to Democratic convention delegates as an “endorsement” validating her candidacy.
The Democrats’ state nominating convention is May 21 and 22, and Gersten said there’s no legal issue for Sheldon to rule on until at least after that.
Bysiewicz’s lawyer, Wesley Horton, indignantly responded that Gersten had contradicted his own claims about whether the judge should rule on the case. Horton said Gersten had argued both that Bysiewicz’s lawsuit has been brought too early and too late to be considered.
Horton said he didn’t need to call any witnesses to demonstrate to Sheldon that there is urgent issue that needs to be ruled on; he said the Republicans’ vigorous intervention in the lawsuit – what he called the GOP’s “sound and fury” in an effort to show Bysiewicz as qualified — has been proof enough that “there is a cloud” of doubt over her.
The contentious exchange broke out during nearly an hour of arguments Thursday, bringing the total length of final arguments since Tuesday to nearly five hours – among the longest in the history of Connecticut civil cases. Sheldon didn’t commit himself on when he’ll issue a ruling; he said he’ll work with “all deliberate speed.”
Before Thursday, the trial had delved into other questions Sheldon also is considering: whether Bysiewicz has the 10 years experience in the “active practice” of law in Connecticut that a state statute requires the attorney general to have; and whether that 10-year requirement is constitutional.
But Thursday was reserved for Republicans’ “jurisdicational” claims — the argument that, in effect, there is no legitimate issue yet over which the court has any jurisdiction to even make a ruling.
Gersten filed a legal memorandum before Thursday’s proceeding. “Fear and speculation do not equate to jurisdiction,” he wrote. He said Bysiewiecz, as the plaintiff, has “failed to present any evidence from any member of the Democratic Party that there was a question or uncertainty as to her legal right to be a candidate for Attorney General.”
“Indeed, the plaintiff offered no evidence, other than her baseless ‘fears,’ that someone, anyone, with the authority to do so, acted or even intended to act to stop her from having her name placed on the ballot in the … Democratic Convention,” he wrote. “Unfortunately, the plaintiff’s fear or speculation is not sufficient to invoke the legal remedy of a declaratory judgment.”
In court, he said that all Bysiewicz wants is a “pre-emptive” ruling from Sheldon to show off at the state convention in an effort to overcome delegates’ doubts that she has enough legal experience to qualify. He said this would allow her to say, “Who cares about what the media says? Judge Sheldon says this is OK.”
Horton said this is the first time in his long career that he’s heard an opposing counsel argue that a lawsuit has been brought too early and too late at the same time.
The “too early” argument, he said, is when Gersten said there’s been no harm done to Bysiewicz’s nomination hopes with the convention still a month away. The “too late” argument, according to Horton, was a statement by Gersten that before Bysiewicz declared her candidacy for attorney general in January, she should have resolved the issue of whether she has 10 years’ experience in the “active practice” of the law in Connecticut.
The only way to resolve that question, though, Horton said, was to bring the lawsuit for a judge’s “declaratory ruling” that she is qualified. That was the very remedy recommended by the current attorney general, Richard Blumenthal, in his recent written opinion that it’s unclear what “active practice” means and that only a judge could define it, Horton said — so that’s what Bysiewicz is doing.
He said that Gersten, by arguing that it’s too early for a ruling about Bysiewicz’s eligibility, seems to be arguing for potential confusion and the waste of citizens’ votes. He noted that Gersten says it’s too early for a ruling, but hasn’t specified when Bysiewicz would finally have the right to get her answer in court — whether it would be after the Democrats’ convention, or after their Aug. 10 nominating primary, or even after the November election and her possibly taking office in 2011.
Horton said the final scenario opens the possibility that citizens could vote someone into office, and then see their votes wasted by a lawsuit that knocks out the candidate afterwards as ineligible. The replacement for the ousted attorney would be appointed by the new governor, taking the decision away from the voters, he said. And so, Horton said, it’s a question that should be resolved up-front — now.
But Gersten said the burden is on Bysiewicz to show the judge that the case is rupe for a decision now — something Horton did not dispute. Gersten said he is amazed that Bysiewicz and her legal team didn’t feel the need to put any Democratic party officials, or one of thousands of delegates, on the stand to testify that Bysiewicz needs a court ruling.
Healthcare having a hard day, but everything else is roughly flat.
This hurts: DataViz has come right out and said that DocsToGo for webOS is no longer under active development, which is to say we have no idea when or if we might expect it happen on webOS.