Susan Bysiewicz v. Dinardo, No. 18612.

• Court: Supreme Court of Connecticut
• Writing for the Court: NORCOTT
• Citation: 6 A.3d 726,298 Conn. 748
• Parties: Susan BYSIEWICZ v. Nancy DINARDO et al.
• Decision Date: 18 May 2010
• Docket Number: No. 18612.

6 A.3d 726
298 Conn. 748

Susan BYSIEWICZ
v.
Nancy DINARDO et al.

No. 18612.

Supreme Court of Connecticut.

Argued and Decided May 18, 2010.^*

6 A.3d 729

Eliot B. Gersten, Hartford, with whom were John H. Van Lenten and, on the brief, John R. Robacynski, Hartford, for the appellant (intervening defendant).

Daniel J. Krisch and Wesley W. Horton, Hartford, for the appellee (plaintiff).

Gregory T. D'Auria, senior appellate counsel, with whom were Robert W. Clark, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Perry Zinn-Rowthorn, associate attorney general, for the appellee (state).

NORCOTT, KATZ, PALMER, VERTEFEUILLE, ZARELLA, McLACHLAN and BISHOP, Js.^*

NORCOTT, J.

*751 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 ¹ or, in the alternative, that the statutory requirement

6 A.3d 730

that the attorney general be "an attorney at law of at least ten years' active practice at the bar of this state" violates article sixth, § 10, of the Connecticut constitution, as amended by articles two and fifteen of the amendments. ² Thereafter, the Connecticut Republican Party (intervening defendant) filed a motion to intervene as a defendant, which the trial court granted. ³ After a trial to the court, the trial court concluded that the plaintiff's performance of her responsibilities as the secretary of the state constituted the active practice of law under § 3-124 and, accordingly, rendered judgment for the plaintiff. The intervening defendant then filed this appeal.⁴ After an expedited hearing, this court rendered*752 judgment in the form of a truncated opinion reversing the judgment of the trial court and declaring that the plaintiff did not meet the requirements of § 3-124 and that the statute was constitutional. We indicated that a full opinion explaining our decision would be released at a later date. This is that opinion.

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 ⁵ and 9-4.⁶

6 A.3d 731

*753 In that capacity, she is authorized to issue, and has issued, "[regulations], declaratory rulings, instructions and opinions" on issues of election law under title 9 of the General Statutes. In addition, the plaintiff has advised local election officials regarding the proper methods of conducting elections. The plaintiff also has worked with her staff to draft proposed legislation and regulations concerning the areas for which the secretary of the state has responsibility or oversight.

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 *754 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 § 3-124.⁷ It also rejected the intervening defendant's claim that "active practice at the bar of this state" means active practice as a litigator. Instead, the trial court concluded that "the 'ten years' active practice' requirement ... must be understood to mean that the attorney general had ten years experience actually engaging in

6 A.3d 732

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." The court also concluded that, when a person "us[es] legal judgment and skill to apply the law to specific facts and circumstances, [he or] she is practicing law." Finally, the court found that the *755 plaintiff's performance of some of her duties as the secretary of the state constituted the active practice of law under § 3-124. Accordingly, it rendered judgment for the plaintiff.

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.⁸ We conclude that the trial court properly concluded that the plaintiff had standing and that her claims were ripe. We further conclude that the plaintiff's performance of her responsibilities as the secretary of the state does not constitute the "practice of law" under § 3-124. Finally, we conclude that § 3-124 is constitutional.

I

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 *756 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 ⁹ and Practice Book § [17-55],¹⁰ is to secure an adjudication of rights where there is a substantial question

6 A.3d 733

in dispute or a substantial uncertainty of legal relations between the parties." (Internal quotation marks omitted.) Wilson v. Kelley, 224 Conn. 110, 115, 617 A.2d 433 (1992). Practice Book § 17-55 requires that the plaintiff be in danger of a "loss or of uncertainty as to [his] rights or other jural relations" and that there be a "bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations...." Thus, "[d]eclaratory relief is a mere procedural device by which various types of substantive claims may be vindicated." (Internal quotation marks omitted.) Wilson v. Kelley, supra, at 115-16, 617 A.2d 433.

"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*757 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...