Connecticut Attorney General's Office

Press Release

Attorney General Finds AG Eligibility Law Constitutional, Says Courts Must Define "Active Practice Of Law"

February 2, 2010

Attorney General Richard Blumenthal today issued a formal legal opinion finding constitutional the statutory requirement that the state attorney general have "at least 10 years' active practice of law."

Blumenthal also ruled that "active practice of law" requires more than simply maintaining a law license, but concluded the exact definition is a factual question that must be decided "on a case-by-case basis by a court."

Blumenthal issued the opinion in response to a formal request by Secretary of the State Susan Bysiewicz.

"For the reasons that follow, I conclude that a Connecticut court, if faced with the issue, would likely hold that Conn. Gen. Stat. 3-124 is constitutional," Blumenthal said in his opinion. "I further conclude that the requirement 'active practice' at the bar of this state for 10 years means more than merely being a member of the Connecticut bar in active status.

"Determining the specific actions that could constitute active practice and whether any particular candidate has satisfied them in a particular case requires a highly fact-specific inquiry that is beyond the scope of this opinion, and would have to be determined on a case-by-case basis by a court.

"Although I conclude that a court must ultimately address the fact-specific issue of a particular candidate's 'active practice,' I express no view on when and whether a court will find the matter within its jurisdiction. A court will demand that a proper plaintiff raise a 'ripe' controversy before it will rule on the matter. Whether the candidate, a rival candidate or a member of the public is such a proper plaintiff; and whether it is enough for the candidate to have merely declared his or her candidacy (as opposed to receiving a nomination or being elected to office) for the matter to be ripe for adjudication is beyond the scope of this opinion."

Regarding the constitutionality of the 10 year active practice requirement and whether the attorney general must be only an elector at least 18 years old, Blumenthal wrote: "Given the long-standing existing statutory scheme, we conclude that the framers of the 1970 amendment adding the Attorney General to the constitution did not intend Article Sixth, § 10, to abrogate the existing statutory scheme and reduce the qualifications for the Office of the Attorney General to solely being an elector who has attained the age of eighteen. Indeed, the very title 'Attorney General' strongly implied that the office would be held by an attorney. In fact, it would be impossible for the Attorney General personally to perform the duties that the framers clearly envisioned, such as appearing for and representing the Governor and other state officers in civil litigation, without being an attorney.

"To hold § 3-124 unconstitutional would require the logical leap that Article Sixth, § 10, intends that a non-lawyer can act as the State's chief civil legal officer. Whatever the meaning of other statutory provisions, such as § 3-124's 'active practice' requirement, the constitution cannot reasonably be read to abolish all professional or educational qualifications for this position. An elector who is not an attorney cannot perform the essential duties of the Attorney General -- providing a broad array of legal services to state government, including representing the State and its officials in complex and important legal proceedings in court. Such duties may not require actual appearance in court, but certainly include the ability to do so, as well as authority to sign pleadings, direct legal action to be commenced, resolve litigation, and other critical activities constituting the practice of law.

"The fact that only an attorney can perform required duties, coupled with the long-standing statutory scheme in existence in 1970, leads to the conclusion that the framers must have intended to import the existing statutory duties and qualifications of the Office of Attorney General, and that Article Sixth, § 10, permitting any elector to be eligible for any office in the state, does not supplant the additional, existing statutory qualifications for the Office of Attorney General."

Regarding the definition of "active practice," Blumenthal wrote:

"Had the General Assembly intended only that the Attorney General be a member of the Connecticut bar for ten years, regardless of whether he actually practiced law, it could have said so without using the words 'active practice.' The fact that the General Assembly chose to insert the words 'active practice' indicates that it intended a candidate to have done more than simply be a member of the bar in active status. Maintenance of active bar status requires only compliance with mandatory filings and payment of certain professional fees, and does not require that an attorney engage in the practice of law at all.

"The conclusion that the phrase 'active practice' means something more than merely bar membership is further supported by the fact that the phrase 'attorney at law' itself already implies bar membership. Thus, the phrase 'attorney at law' has long connoted, and still connotes, an individual who is admitted to the Connecticut bar. Accordingly, the phrase 'active practice' must mean more than simply being a member of the bar because the phrase 'attorney at law' independently incorporates that requirement."

Blumenthal noted that while Connecticut does not define "active practice," other states do, including Alaska, Alabama and West Virginia:

"Common to all of these definitions is a requirement that the attorney have done more than merely be a member of the bar. Given this fact, coupled with the common understanding of the word 'active,' the principle that no words in a statute can be superfluous, and the Connecticut Supreme Court's construction of the phrase 'actual practice,' we conclude in response to your second question that the phrase 'active practice' means more than simply being a member of the bar of the state in active status.

"As explained above, with respect to your third question, the determination of whether particular conduct constitutes the 'active practice' of law must be left to judicial determination pursuant to established judicial procedures."

View the entire opinion to Bysiewicz