NORCOTT, J.
The plaintiff, Susan Bysiewicz, brought this action against the defendants, Nancy Dinardo, the chair of the Connecticut Democratic Party, the Connecticut Democratic Party and the office of the secretary of the state of Connecticut seeking a declaratory judgment that, in carrying out her responsibilities as the secretary of the state, she has engaged in the active practice of law within the meaning of General Statutes § 3-124
The trial court found the following facts. The plaintiff has served as the secretary of the state since 1999. She graduated from Duke University School of Law in 1986 and spent the next six years as an attorney in private practice at law firms in New York City and Hartford. She then spent two years practicing health care and pension law at Aetna Life and Casualty Insurance Company in Connecticut. From 1993 to 1999, the plaintiff represented the constituents of the 100th district in the state House of Representatives. She was elected as the secretary of the state in November, 1998.
The plaintiff's statutory responsibilities as the secretary of the state include acting as the commissioner of elections pursuant to General Statutes §§ 9-3
On January 13, 2010, the plaintiff declared her candidacy for the office of attorney general. Thereafter, questions arose as to whether: (1) "active practice at the bar of this state" as used in § 3-124 requires more than being a member of the Connecticut bar; (2) if so, whether the plaintiff meets the qualifications for the office of attorney general as set forth in § 3-124; and (3) if she does not meet those qualifications, whether § 3-124 is unconstitutional under the state and federal constitutions. In her capacity as commissioner of elections, the plaintiff requested an opinion from the current attorney general, Richard Blumenthal, on these questions. The attorney general issued a formal opinion in which he concluded that § 3-124 requires more than being a member of the Connecticut bar with an active status and that the statute was constitutional. The attorney general also concluded that the question of whether the plaintiff meets the requirements of the statute "must be left to judicial determination pursuant to established judicial procedures."
The plaintiff then filed this action seeking a declaratory judgment that she satisfied the criteria set forth in § 3-124 or, in the alternative, that the statute was unconstitutional under article sixth, § 10, of the Connecticut constitution. The intervening defendant claimed as special defenses that the trial court lacked jurisdiction and that the action was barred by the doctrines of laches, equitable estoppel and waiver. In its memorandum of support of its special defense that the trial court lacked subject matter jurisdiction, the intervening defendant argued that the plaintiff lacked standing because she had made no claim and presented no evidence that anyone had called into question her right to run for the office of attorney general.
The trial court determined that the plaintiff had standing to bring this action and that her claims were ripe. The trial court then rejected the plaintiff's claim that "merely being admitted to and maintaining one's active status as a member of the Connecticut bar for at least ten years" satisfies the requirements of § 3-124.
The intervening defendant then brought this appeal claiming that the trial court improperly rejected its claim that § 3-124 requires that, to be eligible to serve as the attorney general, a person have ten years active practice before the courts of this state as a litigator. After the intervening defendant filed the appeal, this court sua sponte ordered the parties to submit supplemental briefs on the question of whether the trial court properly determined that the plaintiff had standing to bring this action and that her claims were ripe. In its supplemental brief, the intervening defendant contended that the trial court improperly concluded that it had subject matter jurisdiction. The plaintiff disputes both the intervening defendant's jurisdictional claims and its claim on the merits. She also claims as an alternate ground for affirmance that, if this court agrees with the intervening defendant's interpretation of § 3-124, the statute is unconstitutional under article sixth, § 10, of the Connecticut constitution.
We first address the intervening defendant's claim that the trial court improperly determined that the plaintiff had standing to seek declaratory relief and that her claims were ripe. Specifically, the intervening defendant claims that there is no question or uncertainty about whether the plaintiff is entitled to run for the office of attorney general and any question about her qualifications to serve in that office are not ripe. We disagree.
"The purpose of a declaratory judgment action, as authorized by General Statutes § 52-29
"Implicit in these principles is the notion that a declaratory judgment action must rest on some cause of action that would be cognizable in a nondeclaratory suit.... To hold otherwise would convert our declaratory judgment statute and rules into a convenient route for procuring an advisory opinion on moot or abstract questions... and would mean that the declaratory judgment statute and rules created substantive rights that did not otherwise exist." (Citations omitted; internal quotation marks omitted.) Id., at 116, 617 A.2d 433.
Despite these limitations on declaratory judgment actions, neither the statutes nor the Practice Book contain "any restriction upon the power of the court to render judgments determining rights which are contingent upon the happening of some future event. Indeed, a contrary intent is clearly indicated by the provision in the rules authorizing the determination of any fact upon which the existence or nonexistence of any right, power, privilege or immunity does or may depend, whether such right, power, privilege or immunity now exists or will arise in the future. The remedy by means of declaratory judgments is highly remedial and the statute and rules should be accorded a liberal construction to carry out the purposes underlying such judgments. One great purpose is to enable parties to have their differences authoritatively settled in advance of any claimed invasion of rights, that they may guide their actions accordingly and often may be able to keep them within lawful bounds, and so avoid the expense, bitterness of feeling and disturbance of the orderly pursuits of life which are so often the incidents of law suits. Fully to carry out the purposes intended to be served by such judgments, it is sometimes necessary to determine rights which will arise or become complete only in the contingency of some future happening. Even if the right claimed ... is a contingent one, [it is appropriate for determination in an action for a declaratory judgment if] its present determination [will] serve a very real practical need of the parties for guidance in their future conduct. A construction of our statute and rules which would exclude from the field of their operation the determination of rights, powers, privileges and immunities which are contingent upon the happening or not happening of some future event would hamper their useful operation. Such a construction does not, however, compel the Superior Court to decide claims of right which are purely hypothetical or are not of consequence as guides to the present conduct of the parties. The second of the limitations upon the exercise of the power contained in the rules is designed to cover just such situations. It provides that there must be an actual, bona fide and substantial question or issue in dispute, or a substantial uncertainty of legal relations which requires settlement." Sigal v. Wise, 114 Conn. 297, 301-302, 158 A. 891 (1932).
"It is a basic principle of our law... that the plaintiffs must have standing in order for a court to have jurisdiction to
"[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor ... clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.... It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.... Because a determination regarding the trial court's subject matter jurisdiction raises a question of law, our review is plenary." (Citations omitted; internal quotation marks omitted.) Id., at 213-14, 982 A.2d 1053.
With these principles in mind, we turn to the questions of whether the plaintiff in the present case has standing to bring this action for a declaratory judgment and whether her claims were ripe for adjudication when brought. We answer both questions in the affirmative. First, we agree with the plaintiff that there is a "substantial question ... or a substantial uncertainty" as to whether she meets the qualifications contained in § 3-124 and whether the statute is constitutional. (Internal quotation marks omitted.) Wilson v. Kelley, supra, 224 Conn. at 115, 617 A.2d 433. The plaintiff contends that the application of legal judgment and skills to specific facts and circumstances constitutes the practice of law under § 3-124, and that, to meet that provision's "active practice" requirement, it is sufficient to have engaged in some form of legal practice as a member of the bar of this state, "although not necessarily doing so in a courtroom, or on a continuing basis, or with any particular degree of frequency or intensity," and that a narrower construction of § 3-124 would violate article sixth, § 10, of the Connecticut constitution. The attorney general takes no position on the meaning of § 3-124, but contends that, regardless of its meaning, it is constitutional. The intervening defendant contends that § 3-124 requires that the attorney general must have been an active litigator for ten years and that it is constitutional.
Second, the present action seeks relief that would be available in a "cause of action that would be cognizable in a nondeclaratory suit." Wilson v. Kelley, supra, 224 Conn. at 116, 617 A.2d 433. Specifically, one seeking judicial review of a person's qualifications to serve in public office may bring a quo warranto action pursuant to General Statutes § 52-491.
Finally, although we recognize that a quo warranto action would not be ripe until the plaintiff actually took office,
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.
The plaintiff also collaborated with the attorneys on her staff to formulate answers to questions from local election officials regarding the proper conduct of elections. The office of the secretary of the state receives numerous requests for such advice every day, especially in the days leading up to an election. In one instance, the plaintiff received a telephone call from the mayor of Hartford inquiring what to do about a public school principal's plan to close his school, which was a polling place, before the polls closed on election day. The plaintiff advised the mayor that he should prevent the planned closure because an established polling place cannot be moved to another location without providing reasonable notice to local voters before election day. In another instance, the plaintiff received an inquiry from the first selectman of the town of Suffield as to whether proper procedures had been followed with respect to the conduct of a postelection recount. The plaintiff and two attorneys on her staff responded to the inquiry by telephone and the plaintiff asked one of the attorneys to send a confirmatory letter to the first selectman. The trial court concluded that these activities also constituted the practice of law and that the plaintiff's clients in these instances were the state and its citizens.
Previous secretaries of the state who were not attorneys, and members of their staffs who were not attorneys, provided similar information to local election officials in the past. The office of the secretary of the state currently has no established protocol requiring that the plaintiff or another attorney on her staff approve any declaratory ruling, instruction or opinion concerning state elections law before it is issued. The office does not keep formal records of the declaratory rulings, instructions,
In addition to providing declaratory rulings and answering requests for advice on matters related to elections, the plaintiff and other attorneys on her staff have monitored, implemented and taken positions on new legislation that could affect the ability of the office of the secretary of the state to perform its core functions and have advocated for legal reform in areas relevant to the functions of her office. For example, the plaintiff played an active role in lobbying Connecticut's federal congressional delegation to resist the passage of legislation that would burden her office with new reporting responsibilities concerning persons suspected of terrorism and that would require attorneys to report their suspicions about the identities and activities of their own clients to federal homeland security officials. She also lobbied the Veterans Administration to change its policy prohibiting state officials from conducting voter registration and information programs in Veterans Administration hospitals. In addition, she supported legislation that made it easier for military personnel serving overseas to obtain absentee ballots and to vote. Finally, the plaintiff has been heavily involved in implementing the Help America Vote Act of 2002, 42 U.S.C. § 15301 et seq., actions which required interpreting federal law and advising state legislators and others of her conclusions. The trial court concluded that, although many of these activities did not constitute the practice of law, the plaintiff's "efforts to monitor federal legislation and keep the General Assembly abreast of new or impending federal legislation that would or might require compliance with federal standards by the state" constituted the practice of law and that her clients were the state and its citizens.
We begin our analysis of the intervening defendant's challenge to the trial court's interpretation of § 3-124 with the standard of review. The meaning of § 3-124 is a question of statutory interpretation and therefore our review is plenary. Grady v. Somers, 294 Conn. 324, 332, 984 A.2d 684 (2009). "The principles that govern statutory construction are well established. When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply.... In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.... When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter...." (Internal quotation marks omitted.) Id., at 332-33, 984 A.2d 684.
None of the parties in the present case claims that the meaning of the phrase "an
"A principle which is foundational to our system is that the inherent powers of government reside in the people. This is given expression in the right to vote, and thus to choose the public officials who will serve them; and the correlative right of citizens to aspire to public office and serve therein if so chosen." Cannon v. Gardner, 611 P.2d 1207, 1211 (Utah 1980). Accordingly, statutory limitations on eligibility to run for public office should be liberally construed, and any ambiguities should be resolved in favor of a candidate's eligibility. See Carter v. Commission on Qualifications of Judicial Appointments, 14 Cal.2d 179, 182, 93 P.2d 140 (1939) ("[a]mbiguities are to be resolved in favor of eligibility to office"); Scharn v. Ecker, 88 S.D. 255, 258, 218 N.W.2d 478 (1974) ("[t]here is a presumption in favor of eligibility of one who has been elected or appointed to public office, and any doubt as to the eligibility of any person to hold an office must be resolved against the doubt" [internal quotation marks omitted]); Cannon v. Gardner, supra, at 1211 (statutes addressing right to hold public office "should receive a liberal construction in favor of assuring ... the right to aspire to and hold public office"); Gerberding v. Munro, 134 Wn.2d 188, 202, 949 P.2d 1366 (1998) ("eligibility to an office ... is to be presumed rather than to be denied, and ... any doubt as to the eligibility of any person to hold an office must be resolved against the doubt" [internal quotation marks omitted]); Cathcart v. Meyer, 88 P.3d 1050, 1070 (Wyo.2004) ("there is a strong presumption in favor of eligibility for office").
With these principles in mind, we turn to a review of the circumstances surrounding the enactment of § 3-124 and the legislative policy that it was designed to implement. Section 3-124 was enacted in 1897, when the office of attorney general was created. See Public Acts 1897, c. CXCI, § 3 (P.A. 191).
Indeed, when P.A. 191 was enacted, nonattorneys were permitted to engage in much conduct that was "commonly understood to be the practice of law." Grievance Committee v. Payne, 128 Conn. 325, 330, 22 A.2d 623 (1941). The only activity that nonattorneys were specifically prohibited from engaging in was "plead[ing] at the bar of any court of this State...." General Statutes (1887 Rev.) § 784.
This interpretation is also bolstered by the 1891 edition of Black's Law Dictionary, which defines "attorney at law" as "[a]n advocate, counsel, official agent employed in preparing, managing, and trying cases in the courts. An officer in a court of justice, who is employed by a party in a cause to manage the same for him."
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
Moreover, even if we were to construe § 3-124 to incorporate a broader, more general understanding of the practice of law, we would still conclude that the plaintiff does not meet that statute's requirements. This court previously has held that, in determining whether certain conduct constitutes the practice of law, the decisive question is whether the conduct is "commonly understood to be the practice of law." Grievance Committee v. Payne, supra, 128 Conn. at 330, 22 A.2d 623; see also Statewide Grievance Committee v. Patton, 239 Conn. 251, 254, 683 A.2d 1359 (1996). In making this determination, this court has considered a number of factors. In State Bar Assn. v. Connecticut Bank & Trust Co., supra, 145 Conn. at 235, 140 A.2d 863, this court held that functions that "require ... a high degree of legal skill and great capacity for adaptation to difficult and complex situations," or are "performed with the possibility of litigation in mind," may constitute the practice of law. See also Statewide Grievance Committee v. Patton, supra, at 254-55, 683 A.2d 1359 (same); Grievance Committee v. Payne, supra, at 329, 22 A.2d 623 (function that was "highly technical and [would] often [demand] the entire time and study of a specialist" constituted practice of law). In addition, this court has suggested that, for conduct to constitute the practice of law, the conduct must be undertaken on behalf of a client. See State Bar Assn. v. Connecticut Bank & Trust Co., supra, at 236, 140 A.2d 863 ("acts and practices [that were primarily for the benefit of the defendants themselves] did not constitute the practice of law"); see also id., at 234-35, 140 A.2d 863 (functions that require good moral character, capable of "undivided allegiance, a conspicuous degree of faithfulness and disinterestedness, absolute integrity and utter renunciation of every personal advantage conflicting in any way directly or indirectly with the interests of [the] client," constitute "customary functions of attorneys and counselors at law outside of courts").
Moreover, although these cases do not address the issue, because § 3-124 sets forth a competency requirement, we conclude that it necessarily contains a quantitative component.
This conclusion is bolstered by a review of cases involving rules permitting a member of the bar of another state to seek admission to the bar of the forum state if he or she has sufficient experience in the practice of law. For example, in Attorney Grievance Commission v. Keehan, 311 Md. 161, 165, 533 A.2d 278 (1987), the Court of Appeals of Maryland construed a rule that allowed a member of the bar of another state to seek admission to the Maryland bar if "for at least five of the seven years immediately preceding the filing of his petition [the petitioner] has been regularly engaged ... as a practitioner of law...." (Internal quotation marks omitted.) The rules defined "practitioner of law" as "a member of the [b]ar of another [s]tate ... who throughout the period specified in the petition has regularly engaged in the practice of law in such jurisdiction as the principal means of earning his livelihood and whose entire professional experience and responsibilities have been sufficient to satisfy the [b]oard [of law examiners] that the petitioner should be admitted...." (Internal quotation marks omitted.) Id. The petitioner in the case had been admitted to the bar in Pennsylvania and, thereafter, had been employed as a claims adjuster by an insurance company for ten years. Id., at 164, 533 A.2d 278. For five of those years he had "shared a law office gratuitously in York, Pennsylvania," where his practice was "minimal...." Id. Specifically, he had handled ten to fifteen cases per year and had worked approximately fifteen hours per week in the law office. Id., at 168, 533 A.2d 278. When the petitioner applied for membership in the Maryland bar, he failed to disclose his primary employment as a claims adjuster and described himself as a "sole practitioner." Id., at 166, 533 A.2d 278. As a result, the attorney grievance commission found that he had "failed to disclose a material fact requested in connection with ... his application for admission to the bar" in violation of the Maryland Code of Professional Responsibility; id., at 163, 533 A.2d 278; a
On appeal, the Court of Appeals of Maryland concluded that "[t]he reason for [the rule allowing admission of attorneys who have regularly practiced in another state] rests on the assumption that a lawyer who has regularly engaged in the practice of law, as a chief means of earning the lawyer's living over a period of years, has sufficient legal knowledge to demonstrate at least minimum competence...." Id., at 167, 533 A.2d 278. The court concluded that the petitioner's legal experience was "desultory [and] simply does not show one who throughout the period specified in the petition has regularly engaged in the practice of law ... as the principal means of earning his livelihood...." (Internal quotation marks omitted.) Id., at 168, 533 A.2d 278. Accordingly, it affirmed the judgment of the trial court. Id., at 169-70, 533 A.2d 278; see also In re Application of Stormont, 238 Kan. 627, 628-29, 712 P.2d 1279 (1986) (because purpose of rule requiring that applicant to bar have "actively performed legal services for which a license to practice law is required" was to ensure "an acceptable level of professional ethics and knowledge," "[t]he occasional practice of law in another jurisdiction" did not satisfy rule [internal quotation marks omitted]); In re Stanton, 828 A.2d 529, 530 (R.I.2003) (for purposes of rule governing admission to bar, requirement that applicant had been engaged in active practice of law requires "a showing that the legal activities of the applicant were pursued on a full-time basis and constituted his regular business" [internal quotation marks omitted]); State ex rel. Laughlin v. Washington State Bar Assn., 26 Wn.2d 914, 927, 176 P.2d 301(1947) (as used in rule governing admission to bar, "actual practice" means "the opposite of casual or occasional or clandestine practice and carries with it the thought of active, open and notorious engagement in a business, vocation, or profession" [internal quotation marks omitted]); In re Pierce, 189 Wis. 441, 452, 207 N.W. 966 (1926) (as used in rule governing admission to bar, "`actual practice' requires, and must command, a substantial portion of the working time of a practitioner").
We recognize that, unlike the Maryland Code of Professional Responsibility,
Finally, we conclude that the representation of clients is an essential element of the "active practice at the bar of this state" under § 3-124. See State Bar Assn. v. Connecticut Bank & Trust Co., supra, 145 Conn. at 236, 140 A.2d 863 ("acts and practices [that were primarily for the benefit of the defendants themselves] did not constitute the practice of law"). It is reasonable to conclude that, by enacting the statute, the legislature intended to ensure that the attorney general had not only an ingrained knowledge of ethical practices, but also an established record of treating clients with "undivided allegiance, a conspicuous degree of faithfulness and disinterestedness, absolute integrity and utter renunciation of every personal advantage conflicting in any way directly or indirectly with the interests of [the] client." Id., at 234, 140 A.2d 863. The regular representation of clients develops not only legal skills, but also these habitual ethical postures and practices.
With these principles in mind, we turn to the question of whether the plaintiff's
First, although the plaintiff's formal training as an attorney occasionally may have been useful to her in carrying out her routine statutory duties pursuant to § 9-4, the evidence does not support a conclusion that the performance of those duties is "commonly understood to be the practice of law"; Grievance Committee v. Payne, supra, 128 Conn. at 330, 22 A.2d 623; or that it requires the "high degree of legal skill and great capacity for adaptation to difficult and complex situations" that characterizes the practice of law.
We note that, to the extent that special legal skills may be required to answer a particular question or to render a particular ruling, the authority to perform these services on behalf of all state agencies, including the secretary of the state, is conferred exclusively on the attorney general under § 3-125. See General Statutes § 3-125 ("[a]ll legal services required by such officers and boards in matters relating to their official duties shall be performed by the Attorney General or under his direction"). It is reasonable to conclude that the legislature conferred this responsibility on the attorney general in recognition of the fact that a state officer responsible for administering a particular statutory scheme typically will not have the legal status or experience to practice law. Thus, it is implicit in § 3-125 that the legislature believes that agency heads, including the secretary of the state, generally are capable of carrying out their routine duties without having the "high degree of legal skill and great capacity for adaptation to difficult and complex situations" that characterizes the practice of law. State Bar Assn. v. Connecticut Bank & Trust Co., supra, 145 Conn. at 235, 140 A.2d 863. Although an agency head should have a deep familiarity with the statutory scheme that he or she is charged with administering, and with the public policies that the scheme is intended to implement, he or she need not have the ability to determine the meaning of an inherently ambiguous statute, to resolve apparent inconsistencies between the scheme and important public policies embodied in other statutory schemes, or to determine whether a particular application of a statute complies with the state and federal constitutions. Indeed, if we were to agree with the plaintiff that, in carrying out her routine responsibilities under § 9-4, she was engaging in the practice of law, then we would have to conclude that every member of every state agency and local commission who is an attorney and who is charged with implementing a statutory and regulatory scheme and with issuing rulings and decisions in accordance with the scheme, is practicing law within the meaning of § 3-124. We do not believe that such an interpretation is consistent
Second, even if we were to assume that, in carrying out her statutory functions, the plaintiff occasionally engaged in conduct that required a high degree of legal skill and that would, therefore, constitute the unauthorized practice of law under General Statutes § 51-88 if performed by a private nonattorney; see footnote 31 of this opinion; we have concluded that the occasional practice of law does not constitute the "active practice" of law under § 3-124. Rather, the active practice of law means the regular practice of law as the primary means of earning a livelihood. The trial court found only four specific
Finally, we disagree with the trial court's conclusion that, because the plaintiff's activities benefited the state and its citizens, they were the plaintiff's clients when she performed her statutory duties. Rather, we conclude that, in carrying out her duties under § 9-4, the plaintiff, like other agency heads, was executing the public policies of the state as an agent and officer of the state.
For similar reasons, we conclude that the plaintiff's "efforts to monitor federal legislation and keep the General Assembly abreast of new or impending federal legislation that would or might require compliance with federal standards by the state" did not constitute the practice of law under § 3-124. Again, in carrying out these activities she was executing the duties of her office, not representing a client. It is clear, for example, that if the state or the public had concluded that the plaintiff had misinterpreted federal law, that she had failed to inform the legislature adequately of its requirements, or that she had failed to carry out legislative efforts to comply with federal law, the remedy would not be to sue her for malpractice or to sanction her for violating the Rules of Professional Conduct.
The plaintiff's final claim is that the trial court's judgment may be affirmed on the alternative ground
When determining whether a statutory provision conflicts with the state constitution, this court must begin with a strong presumption of the statute's validity. Honulik v. Greenwich, 293 Conn. 641, 647, 980 A.2d 845 (2009). "It is well established that a validly enacted statute carries with it a strong presumption of constitutionality, [and that] those who challenge its constitutionality must sustain the heavy burden of proving its unconstitutionality beyond a reasonable doubt.... The court will indulge in every presumption in favor of the statute's constitutionality.... Therefore, [w]hen a question of constitutionality is raised, courts must approach it with caution, examine it with care, and sustain the legislation unless its invalidity is clear." (Internal quotation marks omitted.) State v. McKenzie-Adams, 281 Conn. 486, 500, 915 A.2d 822, cert. denied, 552 U.S. 888, 128 S.Ct. 248, 169 L.Ed.2d 148 (2007). "It is an extreme act of judicial power to declare a statute unconstitutional. It should be done with great caution and only when the case for invalidity is established beyond a reasonable doubt.... It is not enough that a statute goes to the verge of constitutional power. We must be able to see clearly that it goes beyond that power. In case of real doubt a law must be sustained." (Citation omitted; internal quotation marks omitted.) Honulik v. Greenwich, supra, at 647, 980 A.2d 845.
"[I]n State v. Geisler, 222 Conn. 672, 685, 610 A.2d 1225 (1992), we set forth six factors that, to the extent applicable, are to be considered in construing the contours of our state constitution so that we may reach reasoned and principled results as to its meaning. These factors are: (1) the text of the operative constitutional provision; (2) holdings and dicta of this court and the Appellate Court; (3) persuasive and relevant federal precedent; (4) persuasive sister state decisions; (5) the history of the operative constitutional provision, including the historical constitutional setting and the debates of the framers; and (6) contemporary economic and sociological considerations, including relevant public policies.... Although, in Geisler, we compartmentalized the factors that should be considered in
We begin with the text of article sixth, § 10, of the constitution of Connecticut, as amended by articles two and fifteen of the amendments. See footnote 2 of this opinion. Pertinently, the provision's minimal qualification requirements, read literally, apply to the holder of "any office in the state ... except in cases provided for in this constitution." Conn. Const., amend. XV, § 3. The plaintiff argues that the phrase "any office in the state" is unambiguous and plainly means "every office in the state." Article sixth, § 10, has been part of Connecticut's constitution since 1818.
We turn next to relevant jurisprudence from this state's courts. The limited number of cases implicating article sixth, § 10, or its predecessors, have not construed the qualifications provision literally to apply to "every office in" Connecticut, but instead, have held it applicable only to offices of state government that are constitutional in nature. See Adams v. Rubinow, 157 Conn. 150, 176-77, 177 n. 5, 251 A.2d 49 (1968) (article sixth, § 10, applies only to state constitutional offices and, therefore, does not cover probate judges); Hackett v. New Haven, 103 Conn. 157, 168, 130 A. 121 (1925) (provision applies only to state constitutional offices and, therefore, does not cover municipal board members); see also Mills v. Gaynor, 136 Conn. 632, 639, 73 A.2d 823 (1950) (provision inapplicable to town officers); Scully v. Westport, 20 Conn.Sup. 399, 402, 137 A.2d 352 (1957) (same). "A constitutional office is understood to be one expressly named in and created by [a] constitution, whereas a statutory office is one created by legislation." Annot., 34 A.L.R.2d 155, 161, § 1 (1954); see also 63C Am.Jur.2d 497, Public Officers and Employees § 15 (2009). Because the office of attorney general is a constitutional one; see part III of this opinion; this factor weighs in favor of the plaintiff's position.
Due to the fact sensitive nature and, therefore, multiple distinguishing characteristics of cases concerning legislative power to prescribe qualifications for public offices, we find little guidance for resolving the issue before us in decisions of our sister states or the federal courts.
The historical circumstances surrounding both article sixth, § 10, and the amendment of another constitutional provision, article fourth, § 1, are unique and particularly useful for deciding the issue at hand. To reiterate, when the predecessor to article sixth, § 10, originated in 1818, the position of attorney general did not exist. As we have indicated, the office of attorney general was created by statute in 1897. P.A. 191, § 1. As we also have indicated, P.A. 191, § 2, defined the powers and duties of the office, assigning to it a broad range of quintessentially legal responsibilities,
It was not until 1970, by a constitutional amendment approved after a public referendum,
Accordingly, we conclude that in proposing the amendment to article fourth, § 1, and presenting it to the electorate for approval, the legislature intended to retain for itself the authority to define the minimum qualifications for holders of the office of attorney general, thereby incorporating the existing qualification requirements of § 3-124, and by necessary implication, exempting the position from the preexisting generalized qualifications provision of article sixth, § 10.
We turn last to contemporary economic and sociological considerations. The reasons prompting the move to create the office of attorney general, and thereafter to make the office a constitutional one, have not abated, but only have grown. The attorney general's statutory responsibilities have expanded. See General Statutes §§ 3-125 through 3-130; see also, e.g., General Statutes § 17b-301 (prosecution of fraud in public medical assistance programs); General Statutes § 35-32 (enforcement of antitrust laws). The office continues to represent the interests of the state, its citizens and businesses in a wide range of legal matters of great public importance. See Connecticut State Register and Manual (2009), pp. 216-18. (describing fourteen major practice areas of attorney general's office). In a given year, the office is party to tens of thousands of legal actions, and through its various collection and enforcement activities, generates hundreds of millions of dollars of revenue for the state and its citizenry.
Our consideration of the Geisler factors leads us to conclude that the office of attorney general impliedly is exempt from the general qualification requirements for state constitutional officers prescribed by article sixth, § 10, of the constitution of Connecticut. Consequently, § 3-124, although setting stricter qualifications for the attorney general than those listed in article sixth, § 10, is not unconstitutional.
The judgment of the trial court is reversed and the case is remanded to that court with direction to render a declaratory judgment that the plaintiff fails to satisfy the requirements of § 3-124.
In this opinion KATZ, VERTEFEUILLE, ZARELLA and McLACHLAN, Js., concurred.
BISHOP, J., with whom PALMER, J., joins, concurring.
I agree with the majority's analysis concerning the plaintiff's standing to seek declaratory relief, as well as its analysis of the constitutionality of General Statutes § 3-124. I also agree that the plaintiff, Susan Bysiewicz, does not meet the statutory qualifications for the office of attorney general of the state of Connecticut because the trial testimony established that, in her role as the secretary of the state, she did not have clients with whom she had a confidential relationship and to whom she owed a personal duty of loyalty,
I begin my analysis with the language of the statute itself. By its terms, § 3-124 requires that, to be eligible for office, a candidate for the office of attorney general must be "an attorney at law of at least ten years' active practice at the bar of this state." Although acknowledging that the language of the statute is not plain and unambiguous, the majority nevertheless concludes that the terms "attorney at law" and "at the bar of this state" mean that, to be eligible, a candidate must have litigation experience. The majority purports to reach this conclusion from the statutory language itself and also by reference to "the circumstances surrounding the enactment of § 3-124 and the legislative policy that it was designed to implement."
I agree with the majority that the language of § 3-124 is not plain and unambiguous. I also believe we are in agreement that the statute, by its terms, does not expressly require an eligible candidate to have litigation experience. The ambiguity in this regard arises from the statutory terms "attorney at law" and "at the bar of this state."
In the absence of plain language, we turn to our rules of statutory construction to discern the statute's meaning. "In seeking to determine [the meaning of the statutory language as applied to the facts of a case], General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes.... When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter...." (Internal quotation marks omitted.) Grady v. Somers, 294 Conn. 324, 333, 984 A.2d 684 (2009). In determining legislative intent, however, "[w]e are not at liberty to speculate upon any supposed actual intention of the legislature. We are not at liberty to imagine an intent and bind the letter of the act to that intent; much less can we indulge in the license of striking out and inserting and remodeling with the view of making the letter express an intent which the statute in its native form does not express." (Internal quotation marks omitted.) State v. Faatz, 83 Conn. 300, 306, 76 A. 295 (1910).
Also, as the majority points out, it is an axiom of statutory interpretation that statutory limitations on eligibility to run for public office should be liberally construed, and any ambiguities should be resolved in favor of eligibility. See Carter v. Commission on Qualifications of Judicial Appointments, 14 Cal.2d 179, 182, 93 P.2d 140 (1939). I diverge from the majority because it addresses an issue it need not and, in doing so, it disregards the canon it claims to embrace, namely, that election statutes should be construed liberally in favor of eligibility. Instead, the majority imports into the statute a restriction on eligibility that is neither implied nor expressed by the statute's language.
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.
Additionally, during this same time period, in Connecticut, a commission consisting of judges of the Superior Court developed the first rules of practice resulting in the Practice Act of 1879(act). The act set forth orders and rules, as well as general rules of practice. The act contained numerous forms illustrating the practice rules, including the manner in which certain claims might properly be pleaded. Relevant to the issue at hand, the sample forms provide examples of pleadings for a number of different actions involving attorneys-at-law as parties. Notably, the examples include a form for bringing an action against an "attorney-at-law" for negligence in examining title. Importantly, in using the term attorney-at-law, the judges of the Superior Court did not distinguish between attorneys who practiced in court, either bringing or defending against actions, and those who were involved in transactional work, in this instance, examining title to property. Thus, it appears that during the same time period as the passage of the statute in question, the United States Supreme Court and the judges of our state did not consider the term attorney-at-law to relate specifically or exclusively to courtroom practice.
In sum on this point, although we need not decide the precise boundaries of professional activities that could qualify as being conducted by an attorney-at-law for
I also disagree with the majority's conclusion that the term "practice at the bar" necessarily means courtroom experience. First, I believe that, in this regard, the majority misapplies this court's holding in State Bar Assn. v. Connecticut Bank & Trust Co., 145 Conn. 222, 140 A.2d 863 (1958), to the facts of this case. In that case, this court examined the unauthorized practice of law statute
Contrary to the majority's assertion that the phrase "at the bar" refers to the courtroom, I believe that the trial court correctly concluded that the meaning of "at the bar" depends upon the context in which it is used. This was as true in the nineteenth century as it is today. For example, in 1873, this court held, in Phelps v. Hunt, 40 Conn. 97, 101 (1873), that an attorney's standing at the bar was a relevant consideration in determining the value of services that he had rendered and for which he had brought an action. There, the phrase "at the bar" referred to an attorney's standing among his peers and had no relation to the courtroom. Id.
Furthermore, as the trial court also pointed out, the phrase "at the bar" was, and still is, used in our rules of practice governing the admission of attorneys, without examination, from other states and without regard to the particular form or setting of their intended practice. Section 8(a) of rule 1 of the 1908 Rules of the Superior Court provides in relevant part: "Any attorney and counselor in the highest court of original jurisdiction in another state may be admitted to examination before [the bar examining] committee, upon satisfactory proof to said committee that he is such attorney and counselor, a citizen of the United States, a resident of the state of Connecticut or intends to become such resident, twenty-one years of age, of good moral character, and that he has filed with the clerk of the Superior Court in the county where the examination is to be held a certificate from the clerk of the Superior Court ... together with a certificate of good moral character signed by two members of the bar of this state of at least five years' standing at the bar...." Subsection (b) of § 8 of the 1908 Rules of the Superior Court provides in relevant part: "[i]f any such attorney and counselor shall have practiced for three years in the highest courts of another state he may be admitted by the court as an attorney, without examination ... [so long as he provides] a certificate of good moral character signed by two members of the bar of this state of at least five years' standing at the bar...."
Today, Practice Book § 2-16, the rule allowing out-of-state attorneys to practice in Connecticut, permits such practice, without examination, by "[a]n attorney who is in good standing at the bar of another state ... upon special and infrequent occasion and for good cause shown upon written application presented by a member of the bar of this state...." The interchangeable uses of the terms "at the bar" and "of the bar" undermine the majority's conclusion that the phrase "at the bar," without reference to the court or pleading, means courtroom practice.
I acknowledge that the majority's conclusion that the General Assembly intended for the attorney general to have litigation experience finds some support in the responsibilities ascribed to that office by General Statutes § 3-125, which was enacted as part of the same Public Act as was § 3-124. See Public Acts 1897, CXCI, §§ 2 and 3. It is a fair conclusion that the responsibilities set forth in § 3-125 relate, primarily, although not exclusively, to the representation of agencies of the state in matters in court. Although this assignment of responsibilities is some evidence that the legislature intended for the attorney general to be a person capable of handling litigation, I do not believe that the implication of § 3-125 is sufficiently clear to overcome the unrestrictive language of § 3-124, which does not require
In sum, I agree with the majority that the eligibility requirements set forth in § 3-124 contain some ambiguity as to whether, to be eligible, a candidate for attorney general must have ten years of active courtroom practice. Contrary to the majority, however, I do not think a reasonable reading of the statutory language leads to the conclusion that the term "attorney at law" or the phrase "at the bar" refer to the courtroom. Rather, I believe, they refer to one's membership and active participation in the legal profession of the state. As to the assignment of responsibilities set forth in § 3-125, enacted simultaneously with § 3-124, although the recitation of responsibilities evinces a legislative interest in having an attorney general competent to handle litigation, the implication of § 3-125 is insufficient to overcome the nonrestrictive language of § 3-124. Finally, given the ambiguity in § 3-124, I am aware of no prudential reason to disregard our jurisprudence which counsels in favor of liberally construing ambiguous election eligibility statutes so as to give the electorate the broadest choice. Accordingly, I respectfully concur.
"(1) The party seeking the declaratory judgment has an interest, legal or equitable, by reason of danger of loss or of uncertainty as to the party's rights or other jural relations;
"(2) There is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement between the parties; and
"(3) In the event that there is another form of proceeding that can provide the party seeking the declaratory judgment immediate redress, the court is of the opinion that such party should be allowed to proceed with the claim for declaratory judgment despite the existence of such alternate procedure."
We agree with the court's observations in Abrams concerning the role of the attorney general, which is substantially the same in Maryland and Connecticut; compare P.A. 191, § 2, and Md. Const., art. V, § 3(a); and with its remarks concerning the general requirements to serve effectively in that office. We are not persuaded, however, that the court's ultimate conclusion that the Maryland constitution does not require that the attorney general has had litigation experience should guide our construction of § 3-124. Rather, in light of: (1) the Connecticut attorney general's primary role as the state's legal representative in court; (2) the fact that, unlike Maryland's constitutional provision, § 3-124 requires that the attorney general be an "attorney at law," which, when the statute was enacted, meant an attorney who litigated cases in court; and (3) the fact that, when § 3-124 was enacted, the only activity that required admission to the bar of this state was appearing in the courts of this state, we must conclude that the legislature intended that the phrase "active practice at the bar of this state" would include litigating cases in court.
In contrast, § 3-124 was intended to ensure that the attorney general has sufficient training and experience to represent the state effectively in court and to provide it with competent legal advice. The fact that an attorney has provided legal advice on isolated occasions does not mean that he or she has sufficient experience for these purposes. We conclude, therefore, that conduct that constitutes the unauthorized practice of law under § 51-88 does not necessarily constitute the active practice of law under § 3-124. Cf. In re Application of R.G.S., supra, 312 Md. at 637, 541 A.2d 977 ("[t]he words practice of law may have an entirely different meaning in a statute designed to prevent the practice of law by one not qualified to do so, from that which the same expression should have in determining qualification to hold judicial office" [internal quotation marks omitted]).
It is now clear to us, however, that this court's decision in In re Application of Dodd does not support our conclusion in In re Application of Slade. It does not follow from the fact that the admission committee cannot waive a "specific, concrete" Practice Book requirement for admission to the bar that the admission committee has no discretion to determine whether it has been satisfied. Moreover, as we have indicated, our decision in In re Application of Slade is contrary to the weight of authority holding that, for purposes of rules governing admission to the bar without examination, "practice of law" means regularly practicing law as a means of livelihood, not the occasional practice of law. Indeed, it would appear that, under our decision in In re Application of Slade, an applicant to the bar who had appeared in the highest court of original jurisdiction in another state just once in the preceding five years would meet the requirements of the rule. This ignores the durational connotations of the phrase "for ... five years...." In re Application of Slade, supra, 169 Conn. at 679, 363 A.2d 1099. Finally, we note that neither this court nor the Appellate Court ever has relied on In re Application of Slade for this proposition. Accordingly, we now overrule our decision in In re Application of Slade.
We conclude that these cases are either distinguishable or unpersuasive. In Riddle v. Roy, supra, 126 So.2d at 451, the court held that "[t]he fact that no clients or legal business cross[es] [an attorney's] threshold can have no [e]ffect on [the] character [of the attorney's work as the practice of law] that he has acquired upon admittance to the bar," a standard that the trial court in the present case rejected. Moreover, the factual findings in that case indicated that the defendant had continuously represented clients during the statutory period. Id., at 450. Although the court in State by Reyna v. Goldberg, supra, 604 S.W.2d at 551-53, did not explain what standard it was applying to determine whether the defendant had practiced law for ten years, the factual findings indicated that the defendant had represented clients during the entire period, albeit not always on a full-time basis. Because the courts in these cases found that the attorneys had represented clients, they did not engage in extended analyses of whether the attorneys' activities required a "high degree of legal skill and great capacity for adaptation to difficult and complex situations" that characterizes the practice of law. State Bar Assn. v. Connecticut Bank & Trust Co., supra, 145 Conn. at 235, 140 A.2d 863. Accordingly, they are of little guidance on that question.
In Schenck v. Shattuck, supra, 1 Ohio St.3d at 272, 439 N.E.2d 891, the court concluded that service as a trial referee constituted the practice of law for purposes of a minimum practice requirement for service as a judge. That does not necessarily mean, however, that such service would constitute the practice of law for purposes of a minimum practice requirement for a practicing attorney.
Finally, in State ex rel. Devine v. Schwarzwalder, supra, 165 Ohio St. at 453, 136 N.E.2d 47, the court held that an attorney's service as the chief of the permit division of the department of liquor control of Ohio constituted the practice of law for purposes of a statutory minimum service requirement for a municipal judge. In support of this conclusion, the court stated that "[t]he practice of law is not limited to the conduct of cases in court. It embraces the preparation of pleadings and other papers incident to actions and special proceedings and the management of such actions and proceedings on behalf of clients before judges and courts, and in addition conveyancing, the preparation of legal instruments of all kinds, and in general all advice to clients and all action taken for them in matters connected with the law." (Internal quotation marks omitted.) Id. We do not agree, however, that the essentially administrative and executive functions of the office, as described in the opinion; see id., at 452-53, 136 N.E.2d 47; met this standard.
The plaintiff contends that the two declaratory rulings and the telephone calls to the mayor of Hartford and the first selectman of Suffield were merely examples of activities that she performed on a daily basis. In the absence of any written record of or testimony concerning the specific substance of those daily activities, however, there is no evidentiary support for a conclusion that they constituted the practice of law rather than the routine performance of the plaintiff's statutory duties. Indeed, the fact that there is no written record of the communications between the plaintiff and the local election officials supports a conclusion that the communications were not made on behalf of a client in the plaintiff's capacity as an attorney.
The legislative history of the amendment to article fourth, § 1, however, albeit limited, strongly suggests that the legislature and the electorate, by proposing and approving the amendment, intended to make the office of attorney general a constitutional office. In introducing House Joint Resolution No. 95, proposing the amendment, Senator David Barry stated that "[t]he purpose of the bill is simply to make the [a]ttorney [g]eneral's office a constitutional officer instead of a statutory officer. Under [the] present [regulations'] constitutional framework, the [a]ttorney [g]eneral is the only one of the elected [s]tate [o]fficials, who is not a [c]onstitutional [o]fficer." 13 S. Proc., Pt. 3, 1969 Sess., pp. 1282-83. Representative Richard Yedziniak provided the same explanation when introducing the resolution in the House, and he added: "The position of [a]ttorney [g]eneral has been, and is, of growing importance, because he is required to represent the [g]overnor and does not serve as an independent agent. Every agency, elective office, and even the General Assembly depends on the office of the [a]ttorney [g]eneral. It does not seem logical that this powerful office does not have the constitutional provision governing its existence." (Emphasis added.) 13 H.R. Proc., Pt. 3, 1969 Sess., p. 1290. Finally, the "explanatory text as to the intent and purpose" of the amendment, which was prepared by the General Assembly's committee on constitutional amendments to include on the referendum ballot, was a verbatim reproduction of Representative Yedziniak's explanation. See General Statutes § 2-30a (a) ("At such time as a proposed constitutional amendment is approved by the General Assembly for presentation to the electors of the state for their consideration at a general election, the Office of Legislative Research shall prepare a concise explanatory text as to the content and purpose of the proposed constitutional amendment subject to the approval of the joint standing committee of the General Assembly having cognizance of constitutional amendments. Upon such approval, the Secretary of the State shall cause such proposed amendment and such explanatory text to be printed and transmitted to the town clerk in each town in the state in sufficient supply for public distribution."). Given the foregoing explanation, the electorate must have understood that, by approving the referendum, they were making the office of attorney general a constitutional one.
