If Superior Court Judge Michael R. Sheldon finds that Secretary of the State Susan Bysiewicz meets the 10 years of active practice statute then her attorney doesn’t believe the constitutional question needs to be addressed by the court.
“If I decide in your favor on the statutory issue then I don’t reach the constitutional argument,” Sheldon asked Tuesday in court. “True,” Bysiewicz’s attorney Wesley Horton, responded.
Assistant Attorney General Gregory D’Auria, who argued the constitutional opinion on behalf of the Secretary of the State‘s office, also agreed, but Eliot Gersten, the attorney for the Republican Party, disagreed. He said since it’s highly likely one of the parties will appeal the case the court may want to consider the constitutional issue.
Gersten, who argued that Bysiewicz is not qualified under the statute, found himself agreeing Tuesday afternoon with D’Auria’s argument that the statute is constitutional. Gersten even joked about finding himself in a position where he agreed with the attorney general.
“For the first time in my career, I’m agreeing with the attorney general,” Gersten said.
The back and forth Tuesday was all part of the closing arguments in the lawsuit Bysiewicz filed against her own office and her own party to prove she is eligible to run for attorney general.
Horton argued that the statute requiring an attorney general to have 10 years of active practice is unconstitutional.
The Office of Attorney General was elevated to a constitutional office in 1970, but Horton said the legislative history doesn’t offer any guidance on the issue impacting his client.
D’Auria argued that the silence of the legislative history does nothing to help Bysiewicz’s case. He said lawmakers were just trying to make sure the office wasn’t abolished when they elevated attorney general to a constitutional office in 1970. He said that does not erase the longstanding 10 years of active practice provision.
There was also a dispute about who has the burden of proof in the case.
Horton argued that the defendants in this case have an uphill battle against the presumption that the voters have the right to determine who should be in office. But Gersten argued that Bysiewicz has the burden of proof in the case.
Earlier in the day Tuesday attorney’s argued the statutory provision and may continue their arguments at 2 p.m. Thursday. Gersten said the Republican Party needs a day to think about whether it will pursue the issue of whether this case is appropriate. He said significant issues remain about whether Bysiewicz who is not even the party’s nominee should be able to file lawsuit at this time. He has until the end of Wednesday to decide if he will argue the jurisdictional issues.
It’s still unclear when Sheldon will make a decision in the matter, but it’s expected before the Democratic nominating convention on May 22.