1 1 2 3 4 5 6 ROUGH DRAFT PURPOSES ONLY. NOT TO BE USED AS THE 7 OFFICIAL TRANSCRIPT AS IT MAY CONTAIN UNTRANSLATES 8 AND MISTRANSLATES WHICH WILL BE CORRECTED IN THE 9 FINAL VERSION. 10 11 12 13 April 5, 2010 14 15 16 SUSAN BYSIEWICZ 17 18 19 20 21 22 Bethany A. Carrier, LSR. 23 Brandon Smith Reporting Service 24 (860) 549-1850 25 Brandon Smith Reporting 2 1 (The deposition commenced at 12:05 pm.) 2 3 THE VIDEOGRAPHER: The date today is 4 April 5th, 2010. We're going on the record at 12:06 5 p.m. The case is Bysiewicz versus DiNardo, the 6 Connecticut Democratic Party, the Connecticut Office 7 of the Secretary of State, filed in the Superior Court 8 of Hartford. The name of the witness today is Susan 9 Bysiewicz, and this is volume 2. This deposition is 10 being held at Gersten, Clifford and Rome, 214 Main 11 Street, Hartford, Connecticut. My name is Jacob 12 Brandon from Brandon Smith Reporting & Video. The 13 court reporter is Bethany Carrier from Brandon Smith 14 Reporting & Video. 15 Counsel will now state their appearances 16 for the record, please after which the court reporter 17 will swear in the witness. 18 MR. HORTON: Wesley W. Horton for the 19 plaintiff. 20 MR. ZINN-ROWTHORN: Perry Zinn Rowthorn 21 from the office of the attorney general on behalf of 22 the secretary of state's office. 23 MR. REYNOLDS: Kevin Reynolds from 24 Connecticut Democratic Party. 25 MR. GERSTEN: My name is Eliot Gersten. Brandon Smith Reporting 3 1 I represent the republican party. And in the room 2 also we have two people, Allison Dodge from the 3 democratic party. She's representing the democratic 4 party. And his eminence Robert Martino, and you're 5 here on behalf of whom? 6 MR. MARTINO: I'm here on behalf of the 7 campaign. 8 MR. GERSTEN: And the campaign would be 9 the campaign -- 10 MR. MARTINO: Friends of Susan 2010. 11 MR. GERSTEN: Thanks. 12 MR. HORTON: And I would ask that we 13 proceed without a lunch break so that this deposition 14 can be over with by 5:00. And secondly, my client 15 would like to correct two items of her testimony from 16 last Thursday. 17 MR. GERSTEN: Can we first swear in the 18 witness. 19 20 (Witness sworn.) 21 22 BY MR. GERSTEN: 23 Q Madam Secretary, have you had a chance to 24 review the deposition that you had take place? 25 A I had a chance to reflect further on items Brandon Smith Reporting 4 1 that were discussed in the deposition and I would like 2 to correct two things. 3 Q Okay. My question was whether you had a 4 chance to actually review the -- a copy of the 5 transcript of the deposition? 6 A No. 7 Q And you indicated that notwithstanding that 8 lack of review, you'd like to make some corrections to 9 your testimony? 10 A Yes. 11 Q What is the first item, just topic wise, if 12 you could be kind enough to tell us what you're 13 referring to? 14 A A question with respect to the Ryan McKeen 15 blog post and my response to that. 16 Q Okay. And what was the second topic that you 17 wanted to have a chance to correct? 18 A An item with respect to David Killain. 19 Q We'll come back to both of those. 20 MR. HORTON: Wouldn't it be appropriate 21 for her to correct the record now. 22 MR. GERSTEN: I really don't have any 23 questions, Wes. If she wants to make a speech, she'll 24 get a chance you when you ask her questions. But I'm 25 just conduct ago series of questions STENOMARK. Brandon Smith Reporting 5 1 BY MR. GERSTEN: 2 Q Do you have any -- and besides -- never mind. 3 Now, the first question I'm going to ask you, 4 some of this is going to go back some other materials 5 I'm going to try to make it as short as possible but in 6 connection with your resume, you indicated that you 7 worked for a period of time at Robinson & Cole. Do you 8 recall that? 9 A Yes. 10 Q You have indicated in the past that you 11 thought that was four years, correct? 12 A Yes. 13 Q And in our deposition you indicated it could 14 have been less than four years? 15 A I didn't review the exact dates. 16 Q Fair enough. Now, while you were at Robinson 17 & Cole, didn't you take a leave of absence to work on a 18 political campaign? 19 A I did. Richard Blumenthal's campaign. 20 Q And how long was your leave of absence strike 21 that. Was your leave of absence approximately six 22 months out of the term that you worked at Robinson & 23 Cole? 24 A I'm not certain of the exact time period but 25 it was for a series of months. Brandon Smith Reporting 6 1 Q Didn't you actually move down to Stamford? 2 A I did not. 3 Q You didn't. Okay. You -- however, were you 4 practicing law while you were working on Mr. 5 Blumenthal's campaign? 6 A I was working on the campaign. 7 Q And my question is: Were you practicing law 8 while you were working on the campaign? 9 A No. 10 Q Okay. And ma'am, would I be correct when you 11 said you don't recall the exact time, as you sit here 12 today, it was an extended period of time you took a 13 leave of absence, correct? 14 A For a period of months, yes. 15 Q And despite the fact that you took that leave 16 of absence, you're counting that within your time frame 17 of saying I was practicing law while at Robinson & 18 Cole, correct? 19 A Because I took a leave of absence, yes. 20 Q But during the period of time that you took a 21 leave of absence you just told us I wasn't practicing 22 law? 23 A Correct. 24 Q So wouldn't it be fair to say that whatever 25 period of time that you spent on the campaign with Mr. Brandon Smith Reporting 7 1 Blumenthal should be deducted from your time period 2 that you say I was practicing law qualify for the 3 senate, correct? 4 A That's a legal conclusion. 5 Q Okay. What's your opinion about it? You're 6 a lawyer. 7 A My opinion is I've been a lawyer practicing 8 law for 24 years. 9 Q In your counting the time of 24 years, are 10 you counting the time period that you worked not 11 practicing law on the campaign of Richard Blumenthal? 12 A Can you ask that question again. 13 MR. GERSTEN: Can you read it back to 14 her please, Bethany? 15 16 (The testimony was read.) 17 18 A I have been a lawyer since I graduated from 19 law school and past R passed the bar exam. That's the 20 time I'm counting. 21 Q Okay. Is it your testimony today that 22 whatever time period you've been as a lawyer should 23 count towards your time period is satisfying the 24 requirement that you be an active practice of law? 25 A Absolutely. Brandon Smith Reporting 8 1 Q Were you engaged in the active practice of 2 law while you were on a leave of absence from Robinson 3 & Cole and working on the Dick Blumenthal campaign? 4 A I was working on the campaign, but again 5 we're going to legal conclusions. 6 MR. GERSTEN: Can I have my question 7 read back? I'm not sure she understood it. 8 9 (The testimony was read.) 10 11 A Again, this goes back to the legal question, 12 which is at the crux of this lawsuit. 13 Q Are you saying you can't answer the question, 14 ma'am? 15 A The answer is yes. 16 Q Okay. So you are in fact counting the time 17 period that you were on a leave of absence from 18 Robinson & Cole and you worked on Dick Blumenthal's 19 campaign when you were not actively practicing law? Am 20 I correct? 21 A Yes. 22 Q And when you were employed at Robinson & 23 Cole, who did you report to? 24 A Alvin Thompson. 25 Q Okay. And when you were employed at the Brandon Smith Reporting 9 1 Aetna, 578 I correct, ma'am, you were also an elected 2 official? 3 A Yes. 4 Q Can we go back. Alvin Thompson was your 5 correct report while you were at Robinson & Cole? 6 A Yes, sir. 7 Q During the entire time period? 8 A Yes, sir. 9 Q Okay. And when you were on your leave of 10 absence working on the Blumenthal campaign, were you 11 reporting to Alvin Thompson as your direct 12 supervisor? 13 A No. 14 Q Now, when you were at the Aetna, who was your 15 direct supervisor? 16 A Mel, I can't think of his last name. 17 Q Okay. What did he do? 18 A He was the head of the pension and health 19 care unit. 20 Q Okay. And when you were employed at the 21 Aetna, were you also serving as a state legislator? 22 A Yes. 23 Q Which of those two positions was the 24 full-time job you occupied during that time period? 25 A My position with Aetna. Brandon Smith Reporting 10 1 Q How often would you spend time strike that. 2 Did you spend five days a week at the Aetna during your 3 entire time period? 4 A I believe I went most every day. 5 Q Did you spend the bulk of your day at the 6 office at the Aetna? 7 A I believe so. 8 Q Okay. Now, did you also serve as a state 9 legislator when you were employed at the Aetna? 10 A I did. 11 Q And how much time did you spend as a state 12 legislator while you were at the Aetna? 13 A I think it depended when the legislature was 14 in session. It doesn't -- the legislature is not in 15 session all year. 16 Q Let's go over your best recollection the 17 amount of time you spent at the legislature while you 18 were employed at the Aetna at your first year at the 19 Aetna, how much time did you spend serves as a state 20 legislature? 21 A Well, if I had a session, I would attend the 22 session. If I didn't, I would go to my job at the 23 Aetna. 24 Q Okay. So when you were in the session at the 25 Aetna, strike that. While you were in session at the Brandon Smith Reporting 11 1 legislature, did you spend a full day at the 2 legislature? 3 A If I had a full day of session, yes; if not, 4 I went to my job at the Aetna. 5 Q And it's true that's the way you would 6 describe how you spent your time during both years that 7 you were at the Aetna? 8 A I believe so. 9 Q And would I be correct ma'am that the state 10 legislature meets for five months a year? 11 A Generally speaking. 12 Q And would I be correct that when you were 13 involved with having your -- strike that. When you 14 were serving time at the state legislature, you were 15 not spending time at the Aetna? 16 A If I had a session, then I would be in 17 session at the legislature, in F not, I would be at the 18 Aetna. 19 Q Okay. And when you were at the Aetna, I 20 think I've seen your resume, you've indicated you 21 worked on pension and health care work? 22 A Yes. 23 Q Prior to going to the Aetna, what experience 24 had you had in the pension and health care area? 25 A My -- none. Brandon Smith Reporting 12 1 Q Thank you. 2 A Or limited, I would say. I'd actually like 3 to expand on that, if I may. I did do health -- some 4 health care work at Robinson & Cole because one of the 5 firms clients was the Connecticut Health and 6 Educational Facilities Authority, CHEFA. And so we did 7 do some work with respect to hospital financings. 8 Q And what you're calling the work doing 9 health -- let me see, I'll restate that. 10 Are you indicating today that the work you 11 did on hospital financing is the same kind of work that 12 you worked on when you were at the Aetna doing pension 13 and what was the other health care work? 14 A Uh-huh. 15 Q Were they the same? You did financings for 16 hospitals? 17 A No. 18 Q So other than your experiences at Robinson & 19 Cole working on hospital financing, you had not worked 20 on any pension or health care related work while you 21 were at Robinson & Cole before arriving at the Aetna; 22 is that correct? 23 A Yes. 24 Q And did you take any leave of absence from 25 the Aetna similar to the one you took while you were Brandon Smith Reporting 13 1 employed at Robinson & Cole? 2 A No. 3 Q And when you worked at the Aetna then I 4 presume the Aetna was aware that you had become a state 5 legislator and you would not be available to work at 6 the Aetna during the time period that the legislature 7 was in session? 8 A Yes. 9 Q And as you sit here today, ma'am, are you 10 able to recollect and tell us precisely how long you 11 actually did remain employed at the Aetna? 12 A I don't have the dates in front of me. 13 Q Okay. So you'd need some records to refresh 14 your recollection? 15 A Yes. 16 Q ? 17 A Or look at my buying graph fee. 18 Q The only thing you would be able to rely on 19 yourself is to look at your biography? 20 A Or any kind of employment records and I don't 21 have them here. 22 Q Okay. Now, you talked much the last time 23 about having some volunteer lawyers. Do you recall 24 that? 25 A Yes. Brandon Smith Reporting 14 1 Q In fact, Mr. Martino who is here today on 2 behalf of your campaign is one of those volunteer 3 lawyers, correct? 4 A Yes. 5 Q Who is Kevin Murphy? 6 A He is a prosecutor. 7 Q Okay. And where is he located? 8 A He lives in Berlin. I'm not sure where he 9 works. 10 Q Okay. When -- how do you know him? 11 A I know him from his membership on the 12 democratic down committee in Berlin and I know him as a 13 democratic state central committee member. 14 Q Okay. Now, so he's a state employee, am I 15 correct? 16 A Yes. 17 Q Is he a member of your volunteer lawyers? 18 A Yes. 19 Q And who is Ted Dolittle? 20 A Ted Dolittle was my treasurer and -- for our 21 campaign, and Ted Dolittle is also a volunteer 22 attorney. 23 Q And where is he employed? 24 A Health net, I believe. 25 Q Okay. And in fact, Kevin Murphy was one of Brandon Smith Reporting 15 1 the individuals who participated in drafting a response 2 to Ryan McKeen, am I correct? 3 A He did not participate in the drafting. He 4 sent me an e-mail with an opinion. 5 Q And what was that opinion? 6 7 (Jennifer O'Neill entered the deposition.) 8 9 A That he believed I am engaged in the active 10 practice of law. 11 Q So you have a prosecutor sending you this 12 opinion. Did he give you any kind of authority for his 13 opinion? 14 A The practice book. 15 Q Okay. Is he the one who gave you that 16 section of the practice book that you inserted into the 17 Ryan McKeen response you prepared? 18 A I can't recall because there were many people 19 who brought that particular practice book section to my 20 attention. 21 Q Okay. Well, we know one of them is sitting 22 here today Mr. Martino? 23 A Yes. 24 Q Now you've identified Mr. Murphy. Can you 25 identify any others who brought that particular section Brandon Smith Reporting 16 1 of the practice book to your attention? 2 A There may have been others. We were -- our 3 campaign was receiving a huge number of unsolicited 4 communications from people who wanted to be helpful. 5 Q But you indicated that you got that from a 6 number of people. Could you identify any of the other 7 people who you are referring to? 8 A The two that come immediately to mind are Bob 9 Martino and Kevin Murphy. 10 Q Okay. You've already mentioned those, and I 11 made it very clear I got it from a number of other 12 sources. Who else? 13 A Maybe perhaps David Makerwicz. 14 Q Okay. Anyone else? STENOMARK? 15 A I'm not sure. 16 Q Okay. And now I understand then Mr. Murphy 17 provided this to you in an e-mail? 18 A I -- either that or a phone conversation. We 19 also had a phone conversation. 20 Q Okay. You were pretty explicit that I 21 received an e-mail from Mr. Kevin Murphy? 22 A Uh-huh. 23 Q And where were you when you got that 24 e-mail? 25 A He sent it to my campaign. Brandon Smith Reporting 17 1 Q Okay. And where were you -- were you at the 2 campaign when you received it? 3 A Well, I receive e-mails at the campaign, so I 4 read it when I was at the campaign. 5 Q Now, you've mentioned this volunteer lawyers 6 a number of times and what I'm now going to ask you is: 7 Are there any other volunteer lawyers that you consult 8 with? 9 A Those are the main ones. 10 Q Okay. Are there others besides the main 11 ones? 12 A My husband. 13 Q Anyone else? 14 A Richard Orr. 15 Q I think we covered him the last time. Anyone 16 else besides those? 17 A That's all I can think of at the moment. 18 Q Okay. Do any of these volunteer lawyers have 19 any kind of engagement period -- engagement letter with 20 you? 21 A Not a formal letter. 22 Q Okay. Is there an informal letter? 23 A No. 24 Q Okay. Is there a letter? 25 A No. Brandon Smith Reporting 18 1 Q So would I be correct ma'am in saying that 2 not one of the individuals you have identified as 3 volunteer lawyers have a written engagement letter with 4 you? 5 A No. 6 Q I'm not correct? 7 A Oh, there's no letter. 8 Q Thank you. 9 A You are correct. 10 Q And just by way of reference, how often do 11 you and Mr. Murphy exchange communications? 12 A We had that one e-mail that I mentioned, and 13 we have a group of volunteer lawyers that meet 14 periodically. 15 Q Okay. And how often do you and Mr. Dolittle 16 exchange communications? 17 A Frequently or infrequently, depending on 18 what's happening. 19 Q Okay. And when you use the word frequently, 20 what would you say that equates to? How many times a 21 week? 22 A Several. 23 Q Okay. And when you say several, 24 unfortunately I'm trying to get a qualification 25 indication as opposed to a subjective view. Are you Brandon Smith Reporting 19 1 talking about meeting with Mr. Dolittle more than five 2 times a week? 3 MR. HORTON: I object to form. 4 MR. GERSTEN: I'll restate my 5 question. 6 BY MR. GERSTEN: 7 Q Do you have meetings with Mr. Dolittle 8 STENOMARK more than five times a week? 9 A No. 10 Q Okay. How often more than two times a 11 week? 12 A Are you asking about face-to-face meetings? 13 Q I'll start with a face-to-face. We'll break 14 it down. 15 A We don't meet face-to-face every week. 16 Q Okay. How often do you meet face-to-face 17 with Mr. Dolittle? 18 A Perhaps once every two weeks. 19 Q Okay. Now, I take it then in addition to 20 meeting with Mr. Dolittle once every two weeks 21 face-to-face, you have a series of communications with 22 him that are in writing or verbal? 23 A Mainly verbal. 24 Q Okay. How often do you and Mr. Dolittle 25 talk? Brandon Smith Reporting 20 1 A Perhaps a couple of times a week. 2 Q Okay. When you say a couple times, are you 3 referring to being twice a week or more often than 4 twice a week? 5 A Could be two, could be more. 6 Q It's at least two? 7 A I think it depends. 8 Q Okay. Over the period of the past month, how 9 often would you and Mr. Dolittle talk? 10 A We're talking about the month of March. 11 Q Month of March. 12 A I would say a couple of times a week. 13 Q Okay. Is that at least two times a week, 14 ma'am or more? 15 A About two. 16 Q Okay. Now, Mr. Martino, the fellow who's 17 sitting here, can you tell me how often you and Mr. 18 Martino spoke over the past week? 19 A Couple of times. 20 Q Okay. Is that more than two? 21 A Could be. 22 Q Are you guessing? 23 A I'm not certain. I don't keep track. 24 Q Is it your testimony over the past week you 25 spoke to Mr. Martino no more than two times? Brandon Smith Reporting 21 1 MR. HORTON: Objection. She didn't say 2 that. 3 A I said approximately. 4 BY MR. GERSTEN: 5 Q Okay. And would it be greater than two or 6 more than -- less than two? 7 A I'm not certain. 8 Q So you can't recall how many times you and 9 Mr. Martino talked over the past week, other than to 10 say it could be at least twice? 11 A Yes. 12 Q Good. And how often have you and Mr. Martino 13 met in person over the past week? 14 A We haven't. 15 Q Okay. And do you know why -- I presume did 16 you ask Mr. Martino to be present today? 17 A Yes. 18 Q Okay. And do you know why you wanted to have 19 him present today? 20 A Because there were campaign people here from 21 the other side of the aisle. 22 Q Okay. And who are you referring to? 23 A Mr. Healy and Ms. O'Neill. 24 MR. HORTON: I object. I just want to 25 clarify. I assume you're talking about meeting with Brandon Smith Reporting 22 1 him before today you're not talking about today? If 2 you are, clarify. Because obviously it's a meeting. 3 MR. GERSTEN: You can clarify it. 4 BY MR. GERSTEN: 5 Q So you're not indicating that Mr. Martino is 6 here representing you, Susan Bysiewicz, the plaintiff, 7 that's Mr. Horton's job, right? 8 A Correct. 9 Q Now, Mr. -- I'll butcher this name and I 10 apologize. 11 12 (Recess: 12:33 pm to 12:34 pm.) 13 14 THE VIDEOGRAPHER: On the record 12:34. 15 MR. GERSTEN: Can I just have the last 16 question read back for a moment. 17 18 (The testimony was read.) 19 20 Q Now, I will butcher the name of the young man 21 who works for matter Martino, David mark? 22 A Makerwicz. 23 Q Makerwicz. How often have you and Mr. 24 Makerwicz met? 25 A I'm not sure of the exact number of times. Brandon Smith Reporting 23 1 Q More than five? 2 A Over what time period. 3 Q Over the past month? 4 A I can't think of a time. 5 Q Okay. And am I correct, ma'am, he was the 6 one who wrote the brief that you talked about the last 7 session that was rejected by the Second Circuit? 8 A Yes. 9 Q And do you have a copy of that brief 10 available? 11 A Not with me. 12 Q Okay. Would you be able to ask your counsel, 13 if I ask your counsel to produce a copy of that brief, 14 is that something you would be willing to produce? 15 A Yes. 16 Q ? 17 MR. GERSTEN: Can you make -- 18 MR. HORTON: Of course. 19 MR. GERSTEN: Thank you. I meant to do 20 that over the weekend. I forgot. 21 BY MR. GERSTEN: 22 Q Now, you indicated earlier today, ma'am, that 23 you consider the time period that you spent on your 24 leave of absence from Robinson & Cole to be part of the 25 time period where you've engaged in the active practice Brandon Smith Reporting 24 1 of law, correct? 2 A Yes. 3 Q Am I correct -- let me ask you a question: 4 Could you explain that to me? If you concede you 5 weren't practicing law at the time when you were 6 involved in the campaign, what is the basis for you to 7 include the time period that you worked on the campaign 8 as part of your calculation of being involved in the 9 active practice of law? 10 A The -- the definition of active practice in 11 21890's are what active practice are considered to be 12 in the 18 09's and also that I have been admitted to 13 the bar in Connecticut since 1986. 14 Q Okay. So if I understand it correctly then, 15 ma'am, you're indicating that even if you don't engage 16 in the practice of law and you just do political work, 17 that's considered to be part of the way you count your 18 involvement in the active practice of law because of 19 the way it was done in the 1897? Do I have that right? 20 A In 1897, the active practice probably meant 21 simple the not retired and I have not retired from the 22 practice of law when I was working on Mr. Blumenthal's 23 campaign. 24 Q So since you were not retired from the 25 practice of law, you're counting it towards your time Brandon Smith Reporting 25 1 period of 24 years of actively practicing law, am I 2 correct? 3 A Yes. 4 Q Good. And when you say back in 1897 that's 5 what it meant, what's your basis for that? Strike 6 that. Do you have a basis for that or is that -- that's 7 your opinion, right? 8 A Research has been done by my attorneys at the 9 Horton law firm on that subject. 10 Q Okay. As you sit here today, do you know 11 anything about that subject? 12 A Yes. 13 Q Okay. And what is it you know about that 14 subject then? 15 A That at the time active practice meant not 16 retired. 17 Q Okay. And are you able to cite me to any 18 authority for that? 19 A That would be the equivalent of the practice 20 book or the rules of court in Connecticut at the 21 time. 22 Q Have you read that? 23 A Yes. 24 Q And when did you read it? 25 A I reviewed it in the brief that we talked Brandon Smith Reporting 26 1 about, the brief draft that we spoke about. 2 Q Okay. And as you sit here today are you able 3 to recall the authority for that position any nor 4 clearly than just the equivalent of a practice book? 5 A It's the authority cited in the draft brief 6 and also our volunteer lawyer, Ted Dolittle did his own 7 research on that topic and shared it with me. 8 Q Okay. And when did Mr. Dolittle do his own 9 research on that topic and share it with you? That's a 10 terribly question. 11 When did Mr. Dolittle share it with you? 12 A In January. 13 Q Was that in January before you announced your 14 candidacy or after? 15 A After. 16 Q And when you say he shared it with me, did he 17 share it with you in writing? 18 A We talked about it. 19 Q Did he share it with you in writing? 20 A I don't remember. 21 Q Okay. What do you recall Mr. Dolittle 22 telling you when he advised you of what he learned? 23 A Active practice meant not retired. 24 Q Okay. And you had a telephone call with him 25 on this or a face-to-face meeting? Brandon Smith Reporting 27 1 A Telephone call. 2 Q And you're indicating that he had done some 3 research, but you can't recall if he had shared it with 4 you in writing, correct? 5 A Yes. 6 Q Now, do you -- in January, do you recall 7 giving a press conference and indicating that you had 8 already checked out the issue as to whether you had 9 satisfied the requirement of the active practice of law 10 before you made your declaration for running for 11 attorney general? 12 A What press conference are you referring to? 13 Q Any press conference. I know you do a lot of 14 them. 15 A I'm not certain which press conference you're 16 referring to. 17 Q Okay. Have you ever told a member of the 18 press that prior to the time you had made a decision to 19 run for attorney general, you were aware of this 20 requirement of the ten years of active practice, you 21 had already checked it out and you had satisfied it? 22 A Yes. 23 Q Okay. Who did you make that statement to? 24 A I don't remember but the statement's 25 correct. Brandon Smith Reporting 28 1 Q Okay. What research had you done prior to 2 your declaration for candidacy? 3 A I looked at the statute and looked to see if 4 there was any legislative history on the -- on that 5 statute, the ten-year requirement, 3-124, there was 6 none, and there was also no case law. 7 Q So when you told people I checked it out and 8 I'm okay and I satisfy the requirement, you were 9 relying simply on the work you just described as 10 checking the statute and not seeing any legislative 11 history? 12 A Nor any case law. There did not appear to be 13 anything to prohibit me from serving. 14 Q Okay. So that's what you were referring to 15 when you told the press that you've already -- you were 16 aware of the issue and you had done some research and 17 you would satisfy the statute; is that correct? 18 A Yes. 19 Q Did you actually go and pull out the statute 20 yourself or did you have somebody do that for you? 21 A I had already looked at the statute. 22 Q Okay. And do you recall the time period that 23 you had already looked at the statute? 24 A Yes. Prior to the announcement. 25 Q Okay. So we know that prior to January 13th Brandon Smith Reporting 29 1 then you made this -- you looked at the statute? 2 A Yes. 3 Q Did you confer with anybody upon reading the 4 statute? 5 A Yes. 6 Q Who did you confer with? 7 A Bob Martino. 8 Q Okay. Was that by telephone or in writing? 9 A It was in person. 10 Q Okay. Where were you? 11 A At his office. 12 Q Okay. So this was prior to the time you had 13 determined to run for attorney general and you sat down 14 with Mr. Martino and you had a discussion about this 15 issue and you said look at the statute, that's all 16 there is, correct? 17 A No. We looked at the statute, we looked to 18 see if there was any legislative history and we looked 19 to see if there was any case law. 20 Q Okay. I guess I misunderstood. So this is 21 something you did with Mr. Martino at his law office? 22 A Yes. 23 Q You didn't do it on your own prior to that 24 time? 25 A I had been well aware of the ten year Brandon Smith Reporting 30 1 requirement since Mr. Blumenthal ran for attorney 2 general. 3 Q And how had you -- 4 A In 1990. 5 Q How had you become aware of the ten year 6 requirement? 7 A I looked at the requirement to be attorney 8 general. 9 Q Okay. And were you aware of -- that Claire 10 Nardine Riddle's position -- strike that. Do you know 11 Claire Nardine Riddle? 12 A I do. 13 Q And she was an acting attorney general, 14 wasn't she? 15 A She was. 16 Q And do you know why she was nominated to act 17 as attorney general as opposed to getting the title 18 attorney general? 19 A Yes, because she only had eight years of 20 practice in Connecticut. 21 Q So am I correct, ma'am, that you and Mr. 22 Martino sat down that day and discussed the statute and 23 you said, well, this satisfies it, I'm good, correct? 24 A Yes. 25 Q You didn't go back then and take a look at Brandon Smith Reporting 31 1 what you thought was taking place in 1897, correct? 2 A Correct. We did -- but we looked at -- we 3 looked to see if there was any legislative history, we 4 didn't see any and we didn't see any case law. 5 Q And that's the extent of what you performed 6 as your research to determine with Mr. Martino that you 7 had satisfied the statute that day, correct? 8 A Yes. 9 Q Okay. And how long did that meeting last, 10 ma'am? 11 A I'm not sure. 12 Q Now, is it your contention that -- you're 13 familiar with the term CEO, right? 14 A Yes. 15 Q Chief executive officer? 16 A Correct. 17 Q And is the term chief -- if I use the term 18 CEO in the context of private business, is that clear 19 to you what I'm referring to? 20 A Yes. 21 Q So if you have a CEO of a private business, 22 like we'll call Travelers insurance, the CEO of 23 Travelers insurance to make it simple, okay. Is that 24 all right with you? 25 A Yes. Brandon Smith Reporting 32 1 Q Is it your contention that the CEO of 2 Travelers insurance who has a law degree is engaged in 3 the active practice of law while he is acting as the 4 CEO of Travelers Insurance Company? 5 MR. HORTON: Objection to form. You're 6 talking about a member of the bar of Connecticut; is 7 that correct? 8 BY MR. GERSTEN: 9 Q If The Travelers insurance company has a CEO 10 who graduated law school, went to Duke, became a member 11 of the Connecticut bar and is now acting as the CEO of 12 Travelers Insurance Company for the past 11 years, is 13 it your contention that that CEO in his capacity as 14 running Travelers Insurance Company is engaged in the 15 active practice of law? 16 A He could be. 17 Q That's a little unclear to me. What do you 18 mean he could be? 19 A I wouldn't know what it is that he did all 20 day, but if he negotiated contracts, if he drafted 21 legal documents, then he could be engaged in the active 22 practice of law. 23 Q So let's take both points then. If the CEO 24 of Travelers with the qualifications we just discussed 25 negotiates contracts, that's part of his practicing Brandon Smith Reporting 33 1 law? 2 A If he negotiates legal contracts, if he 3 drafts legal documents, he could be engaged in the 4 practice -- the active practice of law. 5 Q You've used the word could be twice now. I'm 6 trying to understand is it or is it not, if we could 7 eliminate could be? 8 MR. HORTON: I object to the form. 9 A This is a legal -- 10 MR. HORTON: I object to the form of 11 the question. 12 MR. GERSTEN: I'll restate it. 13 MR. HORTON: I'll. 14 MR. GERSTEN: You're not you're 15 entitled to object to form. I'm going to restate the 16 form -- restate the question. You don't have to argue 17 with me. I'm an easy guy to get along with. 18 STENOMARK. 19 BY MR. GERSTEN: 20 Q Ma'am, is it your testimony that the 21 individual with a law degree who graduated Duke who got 22 admitted to the bar of Connecticut who acts as the CEO 23 of Travelers Insurance Company would be engaged in the 24 practice of law in your opinion if he negotiates 25 contracts? Brandon Smith Reporting 34 1 A Yes. 2 Q And why is that? 3 A If he is drafting legal documents, then he is 4 engaged in the practice of law. 5 Q Okay. What if he's not drafting legal 6 documents? What I asked you is whether he's engaged in 7 the practice of law when he's negotiating legal 8 documents. Is it your position that he's practicing 9 law while he's negotiating legal documents in his 10 capacity as CEO? 11 MR. HORTON: I object to the form of 12 the question. 13 MR. GERSTEN: Okay I'll restate it. 14 BY MR. GERSTEN: 15 Q Is it your position, ma'am -- 16 MR. GERSTEN: Can I have my question, 17 Beth, read back, the one that's two questions ago 18 because she answered it about drafting documents I'm 19 just asking about the negotiation of documents. And 20 there was no objection to it, so I want to do the same 21 question again without having to raise Mr. Horton's 22 ire. 23 24 (The testimony was read.) 25 Brandon Smith Reporting 35 1 A I don't know. 2 BY MR. GERSTEN: 3 Q And what leads you to have any element of 4 doubt in your mind, ma'am? 5 A I'm not sure. 6 Q I understand. Is there a reason why you're 7 not certain? 8 A I'm not sure whether negotiating documents is 9 the same as drafting legal documents. If drafting 10 legal documents is the practice of law, is part of 11 practicing law. 12 Q Okay. That's why I asked you the question. 13 So as you sit here today, negotiating a contract may 14 not be enough to satisfy the requirement of 15 satisfying -- of active practice of law? 16 MR. HORTON: I object to the form of 17 the question. Would you like me to state my reason. 18 MR. GERSTEN: No. 19 MR. HORTON: Very well. 20 A What's the question. 21 Q I'll try to restate it. 22 Is the reason for your lack of knowledge 23 relating to your idea -- relating to your inability to 24 answer the question, rather, because negotiating 25 contracts is different than drafting a contract? Brandon Smith Reporting 36 1 MR. HORTON: The reason for my 2 objection is there are two definitions of practice of 3 law going back and forth and you're not making it 4 clear which one you're talking about. 5 MR. GERSTEN: With all due respect, Wes 6 if the witness isn't sure, just like I gave her the 7 instruction, and ma'am I hope it's clear to you, if 8 you don't know what I'm talking about I'm just a dumb 9 lawyer here asking questions you got to be able to say 10 to me I really don't understand the question. That's 11 not a form objection, that's kind of what sometimes I 12 know you're not a litigator but people get accused of 13 coaching the witness. I'm not doing that but that's 14 why I'm asking if you don't ever understand any of my 15 questions, you go ahead and tell me I don't get it, 16 you're confusing Mr. Gersten and I'll do my best to 17 restate it. Okay? Is that clear. 18 A Yes. 19 Q Great. Is it the practice of law in your 20 opinion for the CEO that we just discussed to be 21 negotiating a contract in his capacity as the CEO of 22 Travelers? 23 A And the answer is I'm not sure. 24 Q And what is it that leads you to believe that 25 you can't be sure? Brandon Smith Reporting 37 1 A He would be using his legal training, I 2 believe, to negotiate and -- and I would argue that he 3 would be engaged in the active practice of law, 4 especially if he were drafting documents with respect 5 to that negotiation. 6 Q I'm sorry, I only heard a part of it because 7 we have someone coming in with your video here. I 8 guess we're going to take a short break so we can put 9 up your second video? 10 MR. HORTON: I guess we have to. 11 THE VIDEOGRAPHER: Off the record 12 12:54. 13 14 (Recess: 12:54 pm to 1:10 pm.) 15 16 THE VIDEOGRAPHER: Beginning of tape 17 number 2. On the record. 1:10. 18 MR. GERSTEN: And just for the record, 19 Wes, can we agree that the interruption that took 20 place is an interruption caused by the untimely 21 arrival of the second videographer who we are 22 accommodating at your request. 23 MR. HORTON: Yes. 24 MR. GERSTEN: I just don't want it 25 counted against me down the road. Brandon Smith Reporting 38 1 MR. HORTON: That's absolutely 2 correct. 3 MR. GERSTEN: Thanks. And Bethany, I'm 4 sorry I'm going to ask you to tell me just the 5 question I asked so I can move on to the next one. 6 7 (The testimony was read.) 8 9 BY MR. GERSTEN: 10 Q Now, then, Madam Secretary, let me just ask a 11 question I'm going to add one more element to that 12 hypothetical I asked you about the CEO. If the CEO 13 does not disclose he's an attorney, would you say the 14 same anxious? 15 A Which answer. 16 Q Okay. I'll state this again. If the CEO, 17 graduated Duke? 18 A Law school. 19 Q Graduated Duke law school became a member of 20 the Connecticut bar and served as CEO of Travelers 21 Insurance Company for ten years and never indicated to 22 anyone that he was an attorney dealing with those 23 individuals while he was drafting or negotiating the 24 contract, that is the active practice of law? 25 A Yes. Brandon Smith Reporting 39 1 Q And why is that? 2 A Because he is using his legal training. 3 Q Okay. So is it your testimony and position 4 in this lawsuit that as long as you use your legal 5 training, you are actively practicing law in a capacity 6 of heading up the secretary of state's office and 7 negotiating or drafting documents? 8 A Yes. 9 Q And would that include documents in which you 10 indicated earlier you indicated you are actually the 11 client on? 12 A Yes. 13 Q So even STENOMARK when you're the client, 14 your testimony is you're practicing law, correct? 15 A Yes. 16 Q And you mentioned earlier that you believe 17 that in 1897 the statute was referring to someone who 18 was active who was not retired from the practice of 19 law, do I understand that correctly? 20 A Correct. 21 Q Okay. Could you describe how in 1897 an 22 attorney at law retired from the practice of law? 23 A They close their practice or they passed 24 away. 25 Q Okay. So if they closed their practice, that Brandon Smith Reporting 40 1 would be a retirement even though they maintain the 2 title attorney at law? 3 A What is that question again? 4 Q Are you indicating that an attorney at law, 5 someone who retained the title attorney at law or 6 closed their door was retired from the practice of 7 law? 8 A Maybe. 9 Q Okay. Why is it anything but a yes or no, 10 ma'am, in your opinion? 11 A I was just wondering perhaps if they were 12 suspended from the practice of law, perhaps that would 13 be ending their active practice. 14 Q Okay. So there's a third category you're 15 indicating now, retired, death or suspension? 16 A And I'm not certain about retired because you 17 still -- 18 Q Retain the title attorney at law don't you? 19 A Yes. 20 Q That's why I'm asking you how can you be a 21 retired attorney in 1897? That's exactly why I'm 22 asking you the question? 23 A Well, I'm not sure. 24 Q Now, let's assume for a moment you have an 25 individual who graduated Duke law and then practiced Brandon Smith Reporting 41 1 for four or five years in private practice, and then 2 went to go to work as a rock and roll singer and 3 engaged in the rock and roll industry as a singer. Is 4 that person engaged in the active practice of law? 5 A Sure. 6 Q Okay. And how about the individual who 7 graduated Duke law school and worked for four or five 8 years in private practice and then went to work at a 9 kindergarten teaching students, is that individual 10 engaged in the practice of law? 11 MR. HORTON: Object to this question. 12 Are all these people are actually admitted to a bar. 13 MR. GERSTEN: I'll restate my question 14 if that's the big -- if that's a problem. 15 BY MR. GERSTEN: 16 Q Ma'am, instead of the title CEO, if I have an 17 individual who went to Duke law school, worked for four 18 or five years, joined the Connecticut bar, paid his 19 dues every year as a member of the Connecticut bar and 20 then decided to go teach kindergarten children at the 21 local school around the corner, is that individual 22 engaged in the practice of law once he started the 23 teaching of kindergarten children? 24 A Was the person admitted to the Connecticut 25 bar. Brandon Smith Reporting 42 1 Q Yes, ma'am? 2 A Yes. 3 Q And are you indicating, likewise, if the 4 individual who graduated Duke law, got admitted to the 5 Connecticut bar, practiced for four or five years, and 6 then went to go sing in a rock and roll band, that 7 person's engaged in the active practice of law; is that 8 correct? 9 A Was that person admitted to the Connecticut 10 bar? 11 Q Yes, ma'am. 12 A The answer is yes. 13 Q Okay. How about the individual who graduated 14 Duke law school, got admitted to Connecticut, became a 15 member of the Connecticut bar, and then decided to 16 close the doors of his office, maintain his Connecticut 17 bar membership and go fishing every day for ten years. 18 Would you consider that person to be engaged in the 19 active practice of law during the time period he went 20 fishing? 21 A Yes. 22 Q So is it your testimony today that as long as 23 someone is an active member -- strike that is a dues 24 paying member of the Connecticut bar, that's engaged in 25 the active practice of law? Brandon Smith Reporting 43 1 A If they are admitted to the Connecticut bar, 2 then they are engaged in the practice of law. 3 Q So your testimony is as long as they've been 4 admitted to the practice -- admitted to the Connecticut 5 bar, that's the active practice of law? 6 A Under one definition, yes. 7 Q Okay. And have you seen any support for that 8 position or is that just your opinion? 9 A Yes, I've seen it's in our brief, our draft 10 brief. 11 Q Okay. As you sit here today, are you able to 12 cite to any cases that support that position? 13 A No. 14 Q Okay. And you've indicated that that's one 15 definition. Have you got a definition that you believe 16 is correct? 17 MR. HORTON: I object to form. You 18 mean as opposed to the first one. 19 MR. GERSTEN: Yes. 20 BY MR. GERSTEN: 21 Q Is that the definition you're relying on in 22 this case as the plaintiff in this case, ma'am? 23 A Not the only one, sir. 24 Q Okay. So you have more than one? 25 A Yes. Brandon Smith Reporting 44 1 Q Okay. So the -- what other ones are there 2 then, ma'am? 3 A There are other definitions of active 4 practice that include many activities, in addition to 5 going to court. For instance, giving legal advice. 6 For instance, drafting documents. Or advocating for 7 changes in the law. Those all constitute active 8 practice. 9 Q Okay. So if I understand it correctly, so is 10 going fishing, as long as you have an active membership 11 in the bar, correct? 12 A There is an interpretation of -- that active 13 practice means bar admission only. 14 Q Okay. Which definition are you relying on as 15 the plaintiff in this case to demonstrate to the court 16 that you are engaged in the active practice of law for 17 a period of ten years at the bar? 18 A We are relying on -- 19 Q A ma'am I'm going to excuse you for a moment 20 when you say we you recognize that you're the plaintiff 21 right? 22 A Yes. 23 Q There is no we there is only one person, 24 that's you, right? 25 A I am. Brandon Smith Reporting 45 1 Q Okay. 2 A And my counsel are. 3 Q So what I would like to know is what are the 4 plaintiff's understanding of the definition we're all 5 going to be listening for to know how you think you're 6 going to satisfy the requirement of being engaged in 7 the active practice of law for ten years at the bar? 8 A Among other things, the statutes 9 dash 3 and 9 9 dash 4, which require me as secretary of the state to 10 give legal advice to election officials, to write legal 11 opinions and declaratory rulings. 12 Q Okay. Is there any other definition you're 13 relying on? 14 A ? Let me restate my question. You're not 15 relying on the definition that you just referred us to 16 that a person who has a law degree who became a member 17 of the bar closed his office and decided to go fishing 18 would be considered the active practice of law, are 19 you. 20 MR. HORTON: Objection to the form. 21 Which definition are you talking about Eliot. 22 A I'm confused. 23 BY MR. GERSTEN: 24 Q Okay. Are you considering -- is it your 25 position that the individual -- I want to make sure I Brandon Smith Reporting 46 1 understand it because if you're confused I'm more 2 confused. Is it your position, ma'am, that the person 3 who graduated Duke law school, joined the Connecticut 4 bar, opened an office for four years in private 5 practice and then went to close the doors of that 6 office and went fishing for ten years, would that 7 person satisfy the requirements of actively practicing 8 law so long as they maintain their Connecticut bar 9 membership? 10 A Under one definition of active practice, if 11 the person was admitted to the Connecticut bar, they 12 would be actively practicing. Our case is not about 13 going fishing. 14 Q Okay. That's what I wanted to know. So 15 you're not relying on the going fishing example, 16 correct? 17 A That was your example. 18 Q You're right. And you said that person would 19 be considered an active member? 20 A Under one definition. 21 Q Right. And that is the definition you're 22 relying on in this case? That calls for a simple yes 23 or no? 24 MR. HORTON: No it doesn't I object to 25 the form of the question. Brandon Smith Reporting 47 1 BY MR. GERSTEN: 2 Q Go ahead, ma'am? That is the -- is the going 3 fishing definition, the one we went over, the 4 definition, because you said that's one definition that 5 exists, is that the definition that you are relying on 6 in this lawsuit? 7 MR. HORTON: I object to the form of 8 the question. You're assuming she's relying on only 9 one definition. 10 A We have multiple -- 11 MR. GERSTEN: If you couch her one more 12 time, Wes, you're right I'm going to go to the judge. 13 Please. 14 A I've already said there are many arguments 15 that we are making with respect to how I meet the 16 active practice definition under our state's law. 17 BY MR. GERSTEN: 18 Q And my question to you is not whether there 19 are many arguments, I'm trying to find out if this is 20 one of the arguments you are relying on. That calls 21 for a yes or a no? 22 A Yes. 23 Q Thank you. And going back to your 24 understanding about what happened with Claire Nardine 25 Riddle, was it your position at that time that Brandon Smith Reporting 48 1 Ms. Riddle satisfied the statute? 2 A At which time? 3 Q At the time that she was named acting 4 attorney general because there were questions whether 5 she satisfied the statute. What was your position? 6 A I wasn't aware of -- I certainly didn't have 7 a position back when that happened. 8 Q Okay. And how did you learn about 9 Ms. Riddle's -- the issue concerning Ms. Riddle's 10 position? 11 A It was brought to my attention when questions 12 with respect to 3-124 arose. 13 Q Okay. And who brought it to your 14 attention? 15 A An attorney from orange. 16 Q And when did the attorney from orange bring 17 it to your attention? 18 A Sometime after this issue came up in 19 public -- 20 Q Was it before you filed your lawsuit or 21 after? 22 A Oh, I don't know. 23 Q Did he do it in writing or oral 8? 24 A Orally. 25 Q Does he have a name? Brandon Smith Reporting 49 1 A He does. 2 Q And what is his name? 3 A Joseph Lembo. 4 Q And is Mr. Lembo a member of your volunteer 5 lawyers? 6 A No. 7 Q Okay. Which just takes me one more question 8 about that. You indicated that you meet with your 9 volunteer lawyers as a group, I think you said twice a 10 month. Is that correct? 11 A I'm not certain there's a regular -- in one 12 month we could have met twice. 13 Q Okay. How about over the past four weeks, 14 how many times have you met with your volunteer 15 lawyers? 16 A Once or twice. I'm not certain. 17 Q Okay. Where did you meet? 18 A In Meriden. 19 Q Okay. Where in Meriden? 20 A Research parkway. 21 Q Okay. Whose offices? 22 A B and L companies. 23 Q Mr. Orr's offices? 24 A Yes. 25 Q And who are the members of the volunteer Brandon Smith Reporting 50 1 lawyers who met twice at Mr. Orr's offices in 2 Meriden? 3 A They are attorneys who are helping me on my 4 campaign. 5 Q Okay. Was there anyone in that group besides 6 Mr. Dolittle, Mr. Murphy, Mr. Martino, Mr. I'm going to 7 butcher his name, Mr. Mack -- whatever his name is? 8 A Makerwicz. 9 Q Makerwicz and Mr. Orr? 10 A At various points others. 11 Q Okay. Jamie Sullivan? 12 A Yes. 13 Q And anyone else? 14 A Carol Goldberg, John lit advertise I can't. 15 Q John lit advertise I can't? 16 A Uh-huh. 17 Q Anyone else? 18 A Robert born. 19 Q Is he the one from the northeast? 20 A Yes. Those are the ones that are coming 21 immediately to mind. 22 Q Okay. And this -- these two meetings you've 23 described, are these meetings that are similar as you 24 can recall over the -- since you declared your 25 candidacy, if you had a meeting with your volunteer Brandon Smith Reporting 51 1 lawyers twice a month? 2 A Could be. 3 Q Okay. Now, which calendar do you use to note 4 that you're meeting with your volunteer lawyers? 5 A I don't necessarily use a calendar. 6 Q Okay. Now, in the last session you mentioned 7 you've recused yourself from any consideration of this 8 position from the secretary of state's office. Do you 9 recall that? 10 A Yes. 11 Q Did you make some kind of written memorandum 12 regarding your recusal? 13 A Yes. 14 Q And where is that memorandum located, 15 ma'am? 16 A It would be in the secretary of state's 17 office. 18 Q Okay. And what does the memorandum say, do 19 you recall? 20 A It's one or two sentences and it says simply 21 that for the purposes of putting candidates on the 22 attorney -- candidates for attorney general in the 2010 23 election, that I recuse myself. 24 Q And did you recuse yourself before or after 25 you received the opinion letter from Mr. Blumenthal? Brandon Smith Reporting 52 1 A I have to be -- I would like to know what day 2 his letter was written before I can answer that. 3 Q Okay. We can come back to it. 4 Is there a -- do you know if you recused 5 yourself before or after you wrote your letter to 6 attorney general Blumenthal? 7 A Are you referring to our request for an 8 opinion. 9 Q Correct. 10 A After. 11 Q Okay. Was there a reason why you didn't 12 recuse yourself before? 13 A No. 14 Q Okay. What led you to recuse yourself after 15 you received Mr. Blumenthal's letter when you decided 16 you wouldn't recuse yourself beforehand? 17 A I recused myself after I received advice from 18 my counsel. 19 Q And that was Mr. Krisch? 20 A Yes, who had spoken to Perry Zinn-Rowthorn. 21 MR. HORTON: Krisch. 22 A Krisch, excuse me. 23 MR. GERSTEN: As long as the state's 24 here at the table I'm going to make a claim to get 25 that document please. Brandon Smith Reporting 53 1 MR. ZINN-ROWTHORN: What's the 2 document. 3 MR. GERSTEN: Whatever it is she's 4 referring to. Whatever it is. Her recusal documents. 5 BY MR. GERSTEN: 6 Q And you're indicating now that Mr. Krisch had 7 a conversation with the attorney general's office and 8 that's when the decision was made about recusing 9 yourself? 10 A Yes. 11 Q Okay. And you don't recall the date of 12 that? 13 A Which date? 14 Q The date that you recused yourself. 15 A Well, it will be on the letter. 16 Q Okay. I'm asking you these Madam Secretary 17 because we're going to ask for this to be produced but 18 we have to do our best to try to identify it and you're 19 the only one who's seen it? 20 A It was probably after January 29th, the date 21 that I filed the lawsuit, to the best of my 22 recollection. 23 MR. GERSTEN: Perry is that enough 24 identification for you to be able to track it down at 25 your end or do you need more. Brandon Smith Reporting 54 1 MR. ZINN-ROWTHORN: I know about the 2 document. I can get it for you. 3 MR. GERSTEN: Okay. Thanks. 4 BY MR. GERSTEN: 5 Q Now, ma'am, just one more brief question 6 about your past. Did you take any time off of work for 7 any maternity leave? 8 A Yes. 9 Q Okay. And what kind of time off did you take 10 for I think you have what, three kids or is it four? 11 A Three. 12 Q Three. I didn't know if you're counting your 13 husband because my wife would. So would you tell me 14 how much time did you take off from employment for each 15 of the maternity leaves? 16 A I would have to check with -- I recall taking 17 approximately -- I don't know. I know that I took some 18 maternity leave with my daughter Ava, my oldest child 19 and I took no maternity leave with my other two 20 children because they were born when I was in the 21 legislature. 22 Q When you say they were born while you were in 23 the legislature? 24 A Yes, sir. 25 Q Does that mean they were born when the Brandon Smith Reporting 55 1 legislature was in session or it was out of session? 2 A Well, I have to think about that. When my 3 daughter Lana was born, it was December 22nd, 1993 and 4 the legislature was not in session, to the best of my 5 recollection. And my son, Tristan was born on August 6 5th, 1995, and I do not believe that the legislature 7 was in session at the time. 8 Q So does that mean you did take time off from 9 your employment at Aetna for maternity leave? 10 A I don't remember. 11 Q Okay. And one other question. You're aware 12 that because Mr. Horton made it clear our last session 13 that you're making a constitutional challenge in this 14 case, aren't you, as the plaintiff? 15 A Yes. 16 Q Okay. As you understand it, what is your 17 constitutional challenge? 18 MR. HORTON: I object and I don't -- 19 this strikes me as getting to be harassment. It's a 20 pure legal question as you well know, Eliot. I'm not 21 directing her not to answer, but if this goes much 22 longer on that subject I'm going to claim 23 harassment. 24 A I believe I answered this question the last 25 time I was here, but our constitutional argument is Brandon Smith Reporting 56 1 that when our constitution was changed in 1970 and 1980 2 to say that if you are -- if you are 18 and an elect 3 tore, you can run for any office in the state and that 4 language, therefore nullifies the 1897 statute. That 5 is the constitutional argument. 6 Q Okay. And are you making the argument that 7 you need not be an attorney in order to run for 8 attorney general under your constitutional argument? 9 A No. 10 Q So are you conceding that you need to be an 11 attorney to run for attorney general under your 12 constitutional argument? 13 A Under the constitutional argument, you don't 14 need to be an attorney. 15 Q Okay. That's -- I thought you said the 16 answer to the question was no. 17 A Yes, you don't need to be an attorney. 18 Q So if your constitutional argument is 19 accepted, you do not need to be an attorney to run for 20 attorney general? 21 A Correct. 22 Q And you do not need to be an attorney to be 23 admitted to the Office of Attorney General? 24 MR. HORTON: Is that the same thing. 25 A You mean to be eligible to run for attorney Brandon Smith Reporting 57 1 general or to be sworn in. 2 BY MR. GERSTEN: 3 Q Sworn in. Thank you for clarifying it for 4 me. 5 A If the 1897 statute is invalidated, you would 6 not need to be an attorney. 7 Q So we're clear on this litigation, your 8 position is that someone who is not an attorney can run 9 for attorney general so long as they're over the age of 10 18 and are an elect tore in the state of Connecticut, 11 correct? 12 A This is assuming the 1897 statute is 13 invalidate, yes. 14 Q I'm accepting your constitutional argument 15 that I'm looking to invalidate that statute, correct? 16 A Yes. 17 Q So you would be looking to invalidate the 18 requirement that one would have to be an attorney to 19 become an attorney general representing the people of 20 the state of Connecticut? 21 A I am an attorney, so I -- I'm sorry, I'm not 22 understanding your question. 23 Q Is it your position that if the 1897 statute 24 is invalid because it conflicts with the constitution, 25 you need not be an attorney to become attorney general Brandon Smith Reporting 58 1 of the state of Connecticut? 2 A Correct. 3 Q Now, let's talk about what you do on a 4 typical day in your position as secretary of state. By 5 the way, are you being paid as secretary of state for 6 the day that you've been here to testify? 7 A I'm taking a vacation day. 8 Q So today's a vacation day? 9 A Yes. 10 Q And last week did you submit that as a 11 vacation day when you appeared for your deposition? 12 A I will. 13 Q Okay. You haven't done that yet? 14 A Not yet. 15 Q And just to be clear, this videographer who's 16 here today, that's an expense that you are personally 17 incurring yourself, correct? 18 A Yes. 19 Q Now, over the weekend or I guess it was 20 Friday, excuse me, Mr. Horton delivered to me your 21 calendar that I'm hoping I have a clean copy of so I 22 can? 23 MR. HORTON: You mean the one Thursday 24 afternoon? 25 MR. GERSTEN: Yes. I thought I had Brandon Smith Reporting 59 1 copies made of it. I'm just looking for it right now. 2 I'll come back to it. 3 BY MR. GERSTEN: 4 Q Ma'am, I think I'm on Exhibit 9 right now am 5 I correct. What number? 10. I'm going to show you 6 what we're going to have the court reporter mark as 7 Exhibit 10 which are Bates stamp pages from the 8 secretary of state's 045 through 098 and I'm going to 9 ask you after it's been marked for you to identify it 10 for us and see if we can ask you some questions from 11 it? 12 (Defendant's Exhibit 10 marked for 13 identification. Calendar. 14 BY MR. GERSTEN: 15 Q Ma'am, do you recognize this document? 16 A I don't know. This -- it looks like it's a 17 calendar from March of 2000 and it looks like it was 18 printed out March of 2010. I don't know what this is. 19 And I don't -- 20 Q You don't recognize this document? 21 A I haven't seen my calendar from 2000 in quite 22 a while. 23 Q Okay. Well, do you recall answering 24 interrogatories in this case when we asked you about 25 whether you have a calendar to produce? Brandon Smith Reporting 60 1 A Uh-huh. 2 Q And do you remember saying none other than 3 what the secretary of state's office would produce? 4 A Uh-huh. 5 Q Do you recall that? 6 A Yep. 7 Q And as you look at this today, are you 8 indicating you can't tell if this is the calendar that 9 you operated from -- I can represent to you, ma'am that 10 the numbers at the bottom were placed there by Perry or 11 his crew or his client and we've been told this is your 12 calendar. I'm looking to see if you can confirm that. 13 A It appears to be my calendar. 14 Q Good. Now, you testified previously that you 15 couldn't really tell us what he did on any given day 16 without looking at your calendar, do you recall that? 17 A Yes. 18 Q Okay. Now, I'm looking at your calendar from 19 just the first page which is dated 4/5 there. 20 MR. HORTON: I'm sorry. 21 BY MR. GERSTEN: 22 Q The first page there number 45. Do you see 23 that? Is it owe I see something about block field TC 24 event. Do you know what that stands for? 25 A It looks like it could stand for Brookfield Brandon Smith Reporting 61 1 town committee. 2 Q Okay. And just so we have the record clear 3 because I don't know what I'm talking about, what is a 4 Brookfield town committee? 5 A A democratic town cheat. 6 Q So in your secretary of state's book here 7 you've recorded a meeting that you attended on March 8 12th, some Brookfield democratic town event, town 9 committee event; is that correct? 10 A Yes. 11 Q Good. Now, that week doesn't seem to have 12 any other meetings you took place in. 13 A Yes, and I'm actually wondering about this 14 month myself. 15 Q What is it you're wondering, ma'am? 16 A Because I know I did -- I'm surprised that 17 there are no events recorded on this calendar and I am 18 wondering about them. 19 Q Okay. So it looks like it may be missing 20 some information? 21 A It does. 22 Q Good. Let me ask you to take a look at the 23 page that's entitled May 14th, 2000. It's page number 24 54 do you see it? 25 A May 14th. Brandon Smith Reporting 62 1 Q Right. Down at the bottom it should say SOTS 2 5545? 3 A Yes. 4 Q This seems to have some recording on it East 5 Granby TC event and Granby TC event? 6 A That's the 18th STENOMARK. 7 Q Right. And those dates that would be the 8 democratic town committee for those two towns again? 9 A I would assume. 10 Q Okay. And you can see that if we go to the 11 next page you see something for the Pomfret town 12 committee. Do you see that? And then it's blank, it's 13 blank, it's blank, so if I look at this calendar and I 14 said to you Madam Secretary, could you tell us all the 15 activities you did during this time frame that your 16 calendar that you told us you would have to refer to, 17 reflected that you worked on during that period of 18 time? 19 A I couldn't tell you. 20 Q All right. So if I looked at this calendar, 21 you would agree with me, ma'am, that it appears the 22 only thing the secretary of state did was have a few 23 meetings with the democratic town committees during the 24 year stretching from March 12th, 2000 all the way to 25 December 2000, correct? Brandon Smith Reporting 63 1 A Yes, but I'm not sure this is the calendar. 2 Q Well, this is the one you referred us to when 3 you told us you can rely on that calendar that's going 4 to tell you what I did. And it appears though the only 5 thing that's registered here are you going to 6 democratic town committee events, correct, through 7 December? 8 A Yes. And there is something that seems odd 9 about that. 10 Q Okay. Now the next question I have for you 11 is in your answers to interrogatories you made it clear 12 that you weren't claiming that everything you do 24/7 13 is part of your practicing law, correct? 14 A Can you restate that question? 15 Q Sure. In your answers to interrogatories, 16 weren't you pretty certain that you said strike that. 17 In your answers to interrogatories, didn't 18 you indicate that not everything you do all day long 19 has to do with your claim of practicing law, correct? 20 A Correct. 21 Q Okay. Is it your testimony today under oath 22 that your attendance during the year of 2000, these 23 calendar entries we see here at democratic town 24 committee events is practicing law? 25 A It isn't. Brandon Smith Reporting 64 1 Q Okay. 2 A However, I was absolutely working as 3 secretary of the state during this time period because 4 for instance in November of 2000 we would have had that 5 very interesting presidential election at which point 6 we were dealing with many election issues and there 7 were many media interviews, especially during the 8 months of November and December in the aftermath of 9 that election, which do not appear on this calendar, 10 which are making me wonder whether, in fact, this 11 calendar is an accurate representation of my work. And 12 that's why I'm looking in November and I know that I 13 was doing numerous media interviews which would have 14 been noted and they're not appearing on the calendar. 15 Q Okay. Well, you were the one who 16 indicated -- you guys can go rely on whatever the 17 secretary of state has produced to you to know what I 18 do as secretary of state and you said go look at that 19 calendar. Do you recall that? 20 A Yes. 21 Q And now what you're indicating is we can't 22 really rely on this calendar that's been produced for 23 that time period? 24 A Not this particular portion. 25 Q It just ain't right, right? So let's take Brandon Smith Reporting 65 1 this we'll just throw it out. That one doesn't count. 2 Let's go to another one. Let's look at a time period 3 covering the next year we'll have this one marked as 4 Exhibit 11, please? 5 6 (Defendant's Exhibit 11: Marked for 7 identification. ( Calendar 2001. 8 MR. GERSTEN: Can I have the exhibit 9 the one I wanted to throw out for a moment handed back 10 to me, Madam Secretary? Thank you. We're almost 11 perfect. Just so the record's clear, Bethany, I'm 12 going to take January 14th, which is SOTS 90 through 13 98, which was accidentally included in the prior 14 exhibit and I'm converting that to Exhibit 11 so the 15 witness has that period of time in front of her. 16 Madam Secretary, could you take a look at Exhibit 11, 17 please, which is the one to your right. 18 A This one? 19 Q Yes, ma'am. Do you recognize this 20 document? 21 A Yes. 22 Q Okay. Can we agree this would be your 23 appointment calendar that you referred us to earlier in 24 your interrogatories as coming from the secretary of 25 state's office. Reflecting your activities? Brandon Smith Reporting 66 1 A Yes. 2 Q Good. Now, referring you to what I'm going 3 to -- the March 11th date, which is at 98 there. 4 A Wait a minute. What? 5 Q The March 11th, 2001 time period, which is 6 page 98. It's the last page. Do you see where I'm 7 referring to, page 98? 8 A Yes. 9 Q Good. Is it your testimony that when you're 10 speaking to Paul Patterson's government class relating 11 to citizenship you're practicing law? 12 A Yes. 13 Q Good. And is it your testimony that when you 14 indicate that you're at the Simsbury TC event would 15 that the be democratic town committee again? 16 A Yes, although it says a.m. and I wouldn't 17 have gone to a democratic town committee event in the 18 morning. 19 Q Okay. So -- 20 A They're not held at 8:0 or 9:30 in the 21 morning. 22 Q So this is wrong? 23 A I'm just curious as to why it doesn't say 24 p.m. Well, I'm not sure about the time frame. 25 Q Okay. Well, are you testifying now that Brandon Smith Reporting 67 1 looking at it recording at 9:30 a.m., that's an 2 error? 3 A It appears to be. I do recall visiting the 4 Simsbury democratic town committee because the town of 5 Simsbury was not on the central voter registration 6 system and I was speaking to democratic town committees 7 in this period to try to get them to -- to try to get 8 particular towns to be part of our centralized voter 9 registration system which prevents fraud and which 10 protects voter rights. And was later included in 11 legislation that was passed in 2004. And in the help 12 America to vote act as well. 13 Q So if you were going to -- you were doing 14 that to the democratic town committees as part of your 15 job being a lawyer? 16 A As part of my job being secretary of the 17 state. 18 Q As secretary of state? 19 A And I am a lawyer. 20 Q And in your performance of the job as 21 secretary of state, you were going to the various 22 democratic town committees to encourage people to 23 follow your advocacy, if you will, of getting them 24 involved in the voting program that you just described, 25 do I got that right? Brandon Smith Reporting 68 1 A Yes, because that was a component of the Help 2 America Vote Act of 2002 and also of legislation that 3 was passed in 2004. 4 Q Okay. And when I go through this, where I 5 see notations of Simsbury town event just like we did 6 before those are all the democratic town committees as 7 you just testified, right? 8 A Yes, although I have been to republican town 9 committees to talk about this and members of my staff 10 have as well. 11 Q Okay. Before we get to members of your 12 staff, I'm looking only at your calendar and trying to 13 find any reference to you go to a republican town 14 committee event. I don't see any obvious until 2000, 15 but we already know that's worthless. How about these 16 three months of 2001 are there any reference of you 17 going to any republican town committees? 18 A I know that I went to a republican town 19 committee in Waterbury to do a demonstration of our new 20 voting equipment. 21 Q Okay. So that's one? 22 A Yes. 23 Q Okay. You've been in this office for 11 24 years? 25 A Uh-huh. Brandon Smith Reporting 69 1 Q Do you recall any other occasion besides this 2 one in Waterbury where you went to the republican town 3 committee? 4 A I have also been to a republican -- a 5 republican town committee event to honor some citizens 6 of the year. 7 Q Okay. So that's two? 8 A Uh-huh. I tend to get invited less to 9 those. 10 Q Okay. Now, looking at the Exhibit 11 in 11 front of you. Is it your testimony that when you -- I 12 thought you indicated a moment ago, ma'am, that you 13 don't consider it part of your active practice of law 14 when you're at these democratic town committees as of 15 2000. Did that change? 16 A I am reminded that one of the reasons I was 17 visiting with democratic town committees was to talk 18 about why particular towns should be part of our 19 centralized voter registration system because when I 20 took office there were only a certain number of towns 21 that were part of it. And it actually required 22 legislation that was included at the federal level in 23 the Help America Vote Act and at the state level and an 24 election law reform. 25 Q And so that was part of your job as public Brandon Smith Reporting 70 1 policy, correct? 2 A Yes. 3 Q And if I understand it correctly, you're 4 indicating because you are an attorney, as a member of 5 the bar, when you are espousing matters of public 6 policy, you are engaged in the active practice of law; 7 is that correct? 8 A When I am advocating for changes to the law, 9 yes. 10 Q As a matter of public policy? 11 A As a matter -- when I advocate for changes in 12 election law, in -- for other types of law changes, 13 that is the practice of law. 14 Q Okay. And you would agree with me that 15 you -- when you do that, that is engaging in matters of 16 public policy, correct? 17 A It is engaging in public policy, it is also 18 engaging in the active practice of law to advocate for 19 legislative changes at the state level and at the 20 federal level. 21 Q And would you agree with me, ma'am that there 22 are many people who engage in that kind of advocacy who 23 do not have a law degree? 24 A Absolutely. 25 Q And you'll agree with me that there are many Brandon Smith Reporting 71 1 people who advocate in that kind of public policy who 2 didn't go to law school? 3 A Absolutely. 4 Q And there are people who advocate in that 5 kind of capacity who are not members of the Connecticut 6 bar? 7 A Yes. 8 Q And what makes you different from all of them 9 and why you call it practicing law is because you have 10 a law degree, right? 11 A Yes. 12 Q And you had your dues paid to the Connecticut 13 bar? 14 A I don't belong to the Connecticut bar 15 association, if that is what you're talking about. 16 Q Okay. I'm glad you reminded me. You don't 17 belong to the Connecticut bar association, do you? 18 A I don't. No. 19 Q I forgot about that. Thanks for reminding 20 me. And other than recently, you've never paid 21 anything in the past ten years to the Department of 22 Revenue Services as a part of your active practice of 23 law, correct? 24 A No. 25 Q And you've never paid to the lawyers security Brandon Smith Reporting 72 1 fund, other than that one instance in January 2010 over 2 the past ten years, correct? 3 A Correct. 4 Q And that's always been paid for you, other 5 than that $55 check you wrote? 6 A Correct. 7 Q And going back to Exhibit 11, then. Could 8 you point out in this time period those instances which 9 you believe support your claim that you are engaged in 10 the active practice of law during this time period? 11 A Yes. There are meetings with legislators 12 where we were talking about legislative changes. 13 Q Okay. Go slow. Where are you referring to 14 on this exhibit, please? 15 A I am referring to various notations about 16 meetings with state representatives and legislators. 17 Q Okay. And that would be on the 18th there? 18 A That would be on the 16th with representative 19 Curry. That would be on the 18th with representative 20 God free and representative dies son. 21 Q Great. Can we move onto the next week, 22 ma'am? 23 A Yes. 24 Q Can you identify those activities that upon 25 your review reflect that you were engaged in the Brandon Smith Reporting 73 1 practice of law during this time period? 2 A Yes. In that I was meeting with various 3 legislators with respect to the legislative session, so 4 that would be Senator Gaffey on the 23rd, 5 representative Carter on the 13th, representative 6 Fontana on the 26th, and Representative Montilla on the 7 26th as well. 8 Q Okay. Now, ma'am, all of these 9 representatives you're referring to, are these all just 10 democrats? 11 A They are but they are democrats who are in 12 charge of committees. 13 Q Okay. Going to the next week, ma'am. Could 14 you identify those activities that you claim support 15 your position that you're engaged in the practice of 16 law during this time period? 17 A Yes. There is a meeting with representative 18 Nafis and also representative Denise Merrill and there 19 is a notation about the legislative meeting with 20 mayors. 21 Q Okay. So I just want to make sure I got this 22 clear. You're talking about Tuesday the 30th? 23 A Yes. 24 Q And you're talking about that meeting there 25 that took place for about 30 minutes? Brandon Smith Reporting 74 1 A Yes. 2 Q Okay. And the other one you pointed us to? 3 A Oh, I'm sorry, I missed Representive Lyons. 4 Q And Representive Lyons, that's another 30 5 minutes? 6 A Yes. 7 Q And what was the other one you referred us to 8 representative Merrill? 9 A Yes. And that is on Thursday the 1st. 10 Q And that's another 45 minutes? 11 A Yes. 12 Q Right? 13 A Yes. 14 Q Okay. So in this entire week what we got 15 here is an hour and 45 minutes spent on the activity 16 that you claim supports your position of practicing 17 law, correct? 18 A Yes, amongst other things. 19 Q Okay. Well, are you talking -- I've been 20 asking you to tell us what on this calendar amongst 21 other things but I don't see anything here. That's why 22 I asked you? 23 A What you have is my public meetings for these 24 particular days during the -- during the legislative 25 session. And, you know, and the other times I am Brandon Smith Reporting 75 1 running the agency. And talking to election officials 2 on the telephone, meeting with people in my office. 3 Q Okay. Well, I'm looking at meetings with 4 people in your office, just on this week. 5 A Yes. 6 Q And I see meetings with Maria Tanya and 7 Babette? 8 A Uh-huh. 9 Q And it says something about office issues. 10 A Yes. 11 Q Are you indicating that that's another 30 12 minutes that should be counted in your week towards the 13 practice of law? 14 A Amongst other things, yes. 15 Q Okay. But as you sit here today, if I 16 understood your testimony last time, there's really 17 nothing else that you can rely on besides your calendar 18 that would allow us to know what you do during a day, 19 there is no other documents, correct? 20 A There are many documents that our office has 21 produced and that our -- and that I have written. 22 Q Okay. Okay. We're going to come to those. 23 But other than those examples that you selected, there 24 is nothing in the form of any daily report that would 25 reflect that you do anything at all, other than what's Brandon Smith Reporting 76 1 on these calendars, correct? 2 A Well, there are lots of documents in our 3 office. 4 Q Okay. Could you identify those that tell us 5 what we would look at to know what you do on a daily 6 basis because you indicated in your last testimony, I 7 can't remember what I recall I would do and I needed to 8 have my calendars to refresh my recollection. So are 9 you indicating there is something other than your 10 calendars that we need to look at to refresh your 11 recollection of what you would be doing? 12 A I'm just making the comment that there are 13 many phone calls and other meetings that I might have 14 with people in my office that are not reflected on this 15 calendar. 16 Q Okay. And where would one look for documents 17 that would reflect what you just described, all these 18 telephone calls? 19 A Well, you can look at our telephone 20 records. 21 Q Okay. And what telephone records would you 22 be referring to to tell me we should look at those that 23 would refresh your recollection? 24 A Well, those would be telephone calls that I 25 made either myself or with my deputy or with other Brandon Smith Reporting 77 1 attorneys in our office, as an example. 2 Q Okay. And what kind of records would reflect 3 that, that you are referring us to? 4 A There would be telephone records. 5 Q Are you just talking about long distance 6 telephone charges, is that what you're referring to? 7 A That's right. 8 Q Would there be any memorandum that you could 9 refer us to? 10 A I mentioned the last time we met the log 11 books that some of our attorneys keep. 12 Q And you're aware that when you made the 13 request for the log books, the secretary of state 14 responded and said we don't have any records like that. 15 Do you recall that? 16 A I was referring to logs kept by our election 17 attorneys. 18 Q And do you recall that your office responded 19 to the request you made in formal discovery and said no 20 such documents exist? 21 A I don't recall. 22 Q Ma'am, did you look at the responses that 23 were filed in discovery? 24 A I think I do and I am -- perhaps I should 25 just say that my deputy, Leslie Mara, will often make Brandon Smith Reporting 78 1 notes on particular conversations that we have with 2 election officials. So perhaps I shouldn't have said 3 log books and maybe notes is the better term to use. 4 Q So when you made a request of your office and 5 your lawyers said -- you would agree with me that you 6 asked for a copy of the log kept by the election law 7 division of the Office of the Secretary of State 8 reflecting the division's responses to official 9 election law Inquiries during the years 1999 to 2010, 10 that was a request that you helped prepare, correct? 11 A Yes. 12 Q And did you receive a response or did you -- 13 strike that. Did you read the response of the 14 secretary of state that said the office has no 15 documents responsive to this request? Did you read 16 that? 17 A May I see that, please? 18 Q I'm going to show you question number 16 and 19 the answer which was given under oath from my copy even 20 with my handwriting on it. Did you read that 21 response? 22 A I must have. 23 Q Okay. So your request of your office 24 produced no documents, correct? 25 A Correct. Brandon Smith Reporting 79 1 Q Now, ma'am, I'm still on this Exhibit 11. 2 And what I'd like to make sure we go through is in the 3 week of February 18th, the only entry I see of your 4 activities would be your meeting with the democratic 5 Norwich town committee, correct? 6 A That's the only one I see. 7 Q And that's at 8:30 in the morning? 8 A And that doesn't seem to be the correct time 9 because I know of no town committees that meet 59 8:30 10 in the morning. So I'm wondering if there was a 11 computer issue with that. 12 Q Okay. 13 A Generally town committee meetings are in the 14 evening. 15 Q Okay. Now, I'm looking at the next week, 16 February 11th. I'm sorry, it's page 94. 17 A I don't have a 94. I have a 93 and a 95. 18 Q Okay. Well, everything -- 19 A Wait. No. It's out of order. 20 Q Okay. Thank you. Looking on this page of 21 your week, can you identify the time that you can that 22 demonstrates you were engaged in the practice of law 23 during this week? 24 A Well, as an example I was meeting with 25 representative Wade Heislope and was meeting with Brandon Smith Reporting 80 1 senator Chris co, who was on the budget writing 2 committee, and we did those meetings in preparation for 3 an advocacy for legislation and also for our offices 4 budget. 5 Q I'm looking at that it looks like it took 30 6 minutes? 7 A Yes. 8 Q On the 16th. Correct? 9 A Yes. 10 Q And looks like that's about it that week 30 11 minutes spent, right? 12 A 30 minutes that that meeting took. Doesn't 13 mean I wasn't engaged in the active practice of law at 14 other times. These are simply my public 15 appointments. 16 Q Okay. Well, where would we look to find out 17 your private appointments, if not in your calendar 18 here? 19 A Well, my private appointments wouldn't be on 20 this state calendar. 21 Q Okay. And you wouldn't be saying that -- I 22 think you testified earlier that your private 23 appointments are when you go to see the doctor, 24 right? 25 A Correct. Brandon Smith Reporting 81 1 Q So we're not counting that as practice of law 2 now are we? 3 A No. 4 Q Okay. Where would you keep a record of your 5 activities of your private activities as opposed to 6 your public activities? 7 A I guess I'm not sure what you mean by my 8 private activities. 9 Q Okay. Well you indicated that this is my 10 public calendar? 11 A Right. 12 Q And this is the calendar that reflects my 13 activities that I've engaged in as secretary of state, 14 correct? 15 A Correct. But every -- every telephone 16 conversation, every constituent letter, every legal 17 ruling or memo that I've worked on does not appear on 18 this calendar. These are my public appointments. 19 Q Okay. 20 A For instance, a democracy cup in West 21 Hartford, a presentation in Essex that week as an 22 example. 23 Q Well, you recall making a big note in your 24 calendar of spending time drafting your letter request 25 to the attorney general regarding your eligibility to Brandon Smith Reporting 82 1 become a candidate, correct? You marked it down on 2 your calendar, didn't you? 3 A Okay. I did. 4 Q So we know of one instance where you made a 5 big deal or maybe it was no big deal of marking the 6 time you spent drafting a letter to the attorney 7 general, correct? 8 A Correct. 9 Q Is there a reason why you have no 10 indication -- again I'm just pulling three months from 11 one year and three months from the other, there is no 12 indication of you doing any letter writing in any of 13 these calendars, is there? 14 A Not on the calendar. 15 Q Okay. 16 MR. GERSTEN: I'm going to have marked 17 147 through 152 and ask the secretary after that's 18 been marked as an exhibit to see if she can tell me if 19 she can identify this. 20 21 (Defendant's Exhibit 12: Marked for 22 identification.) Calendar 2002. 23 24 BY MR. GERSTEN: 25 Q Ma'am, you can identify these documents as Brandon Smith Reporting 83 1 coming from your calendar at the secretary of state? 2 A Yes. 3 MR. HORTON: Is this 12? 4 BY MR. GERSTEN: 5 Q And on these papers, can you -- for the first 6 page -- you know, I thought I had an extra copy. I'm 7 just going to take a two minute break because I thought 8 I had a copy and I wanted to ask you some questions on 9 this one. I want to make a copy. I'm sorry to 10 interrupt the flow of questions, Madam Secretary. 11 12 (Recess: 2:16 pm to 2:30 pm.) 13 14 BY MR. GERSTEN: 15 Q Beginning of tape number 3. On the record 16 2:31? 17 BY MR. GERSTEN: 18 Q Great. Madam Secretary just to go back for a 19 moment. I'm going to have this document marked as 20 Exhibit 12 that was handed to me by the attorney 21 general's office during a break. See if you can just 22 confirm for me that this is the document. I'm sorry, 23 don't rush because we have to have the court reporter 24 mark it first, please? 25 Brandon Smith Reporting 84 1 (Defendant's Exhibit 13: Marked for 2 identification.) letter February 19, 3 2010. 4 BY MR. GERSTEN: 5 Q Ma'am, looking at Exhibit 13. This is the 6 document you were talking about earlier that you 7 indicated you recused yourself on? 8 A Yes. 9 Q Okay. So we have this now, you wrote this 10 letter after you filed your lawsuit in this case? 11 A Yes. 12 Q Okay. In what part of the -- and then you've 13 indicated since that Leslie Mara has recused herself as 14 well? 15 A I believe she has. 16 Q Okay. Did she do that in writing? 17 A I believe she did, but I'm not certain. 18 Q Okay. How did you learn that she recused 19 herself? 20 A I assume she did. 21 Q What knowledge do you have that she recused 22 herself? 23 A Well, I guess I don't have any actual 24 knowledge that she did. 25 Q Okay. So when you testified for about twenty Brandon Smith Reporting 85 1 minutes on the last session when you said it went from 2 you and headed off to Mara and you in turn thought Mara 3 head I had it off to Bromley you've never seen any 4 documents that support that? 5 A No. I believe she told me that she intended 6 to do that. 7 Q Okay. And when you say she told me she 8 intended to do that did she do that on the same day 9 that you wrote this letter to her? 10 A I don't remember. 11 Q When did she tell you she intended to recuse 12 herself? 13 A When I was discussing this letter with her. 14 Q Okay. Did you discuss this letter with her 15 before you wrote it? 16 A I'm not certain of the exact timing. 17 Obviously she got the letter, and I know that we 18 discussed it. 19 Q Okay. And when did she tell you, I intend to 20 recuse myself also, Madam Secretary? 21 A About this time. 22 Q After she received this letter? 23 A I believe so, at the same time she received 24 it. 25 Q Okay. And as you sit here today, what Brandon Smith Reporting 86 1 statutory authority did you have to delegate the 2 decision making with respect to this matter to your 3 deputy? 4 A I had the advice of counsel. 5 Q Okay. And that counsel with whom? 6 A Dan Krisch. 7 Q So you went and -- 8 A And my counsel Perry sin row thorn and the 9 attorney general's office. 10 Q So Perry indicated to you as your counsel 11 that you should recuse yourself from any decision 12 making with respect to this matter? 13 A Not directly. I believe he had a 14 conversation with my counsel, Dan Krisch. 15 Q So the secretary of state is relying on 16 private counsel to give the secretary of state advice 17 on recusing the secretary of state from making any 18 decisions with respect to this matter, am I correct on 19 that? 20 A Yes. 21 Q Okay. Were there -- is there any other 22 attorney you relied on in making the decision to recuse 23 yourself and delegate your decision making to someone 24 else in the office? 25 A Other than those two, no. Brandon Smith Reporting 87 1 Q Okay. And you didn't talk to Perry sin raw 2 thorn yourself? 3 A No. 4 Q And by this time when you made this decision, 5 you had already filed a lawsuit against your own 6 office, didn't you? 7 A Yes. 8 Q And you were anticipating -- strike that. 9 And you were relying on an adversary strike that. You 10 were relying on an attorney who's an -- representing an 11 adversary in this lawsuit to give you advice? 12 MR. HORTON: I object to the form. 13 Could you explain. 14 MR. GERSTEN: Sure. 15 BY MR. GERSTEN: 16 Q You've identified Perry sin raw thorn as 17 someone that you thought you got advice to recuse 18 yourself on, correct? 19 A I had heard from my attorney that Perry had 20 mentioned it to him and I relied on my town, Dan 21 Krisch. 22 Q When you say your aware that Perry represents 23 an adversary to you in this lawsuit, correct? 24 A Yes. 25 Q And are you indicating now that the idea of Brandon Smith Reporting 88 1 recusing yourself came from the attorney representing 2 an adversary in this lawsuit? 3 A Came from Dan Krisch. 4 Q Okay. So you're not relying on advice given 5 from the Office of Attorney General in delegating 6 decision making to someone else in your office; is that 7 correct? 8 A I think I've answered that question. 9 Q It would be correct? 10 A Correct. 11 Q Great. Now, do you know of any authority for 12 you to delegate all decision making with respect to 13 this matter to someone who's not elected as the 14 secretary of state? 15 MR. HORTON: I object to the question. 16 It's been -- this has been gone over before. 17 A We discussed this in the previous -- 18 deposition. 19 BY MR. GERSTEN: 20 Q We did. Now that I got the letter I'm 21 looking for some clarification here. Do you know of 22 any authority -- 23 A I don't. 24 Q That allows you -- thank you. I just need to 25 finish my question then I'll let you answer? Brandon Smith Reporting 89 1 A Sorry. 2 Q Pro problem. Do you know of any authority 3 from you to delegate all decision making with respect 4 to this matter to someone who's not elected as 5 secretary of state? 6 A I don't. 7 Q Thank you. Going back to Exhibit 12, ma'am, 8 which was the document I wanted to have copied during 9 the break. I'm going to hand that to you now. This is 10 your calendar for a few months of February 2002? 11 MR. HORTON: Excuse me Eliot before you 12 go there, we did figure out over the break what the 13 miss store about Exhibit Number 10 is. If you -- if 14 you wish to question it. If you don't that's fine. 15 A May I add something about Exhibit 10, please? 16 Q Sure. Hang on a minute I threw it out, 17 remember now I'm bringing it back. Okay. 18 A During the break, I spoke with my scheduler 19 to ask her why town committees might be appearing in 20 the morning and why there didn't appear to be much on 21 the calendar for many months and she indicated that 22 scheduler by the name of Babette Mantilla, who preceded 23 her, had kept calendars on a different program, 24 computer program. And there -- and that may not have 25 been -- that information may not have been properly Brandon Smith Reporting 90 1 transferred to this calendar and maybe the reason why, 2 you know, town committees are bizarrely appearing on 3 occasion in the early morning, something looks a little 4 strange about this calendar. And she confirmed that 5 that's when in 2000 we started using a different kind 6 of a -- we changed from one program to another. 7 Q What's her name? 8 A Her name is Tammy Marzik. 9 Q And she's the one whose name appears down 10 here as the one who printed out this calendar that 11 day? 12 A Correct. 13 Q Right? And are you indicating she worked for 14 you in March of 2000? 15 A No, I'm saying that Babette Mantilla who is 16 mentioned on this schedule on Exhibit 12 was the 17 scheduler and Tammy was saying that Babette used a 18 different type of program in 2000. And so maybe the 19 reason why there isn't anything on here when I know I 20 was very busy in 2000, particularly after the 21 presidential election. 22 Q So we can't rely on these calendars anyway if 23 I understand your clarification to demonstrate what 24 work you were doing during that time period, correct? 25 A This doesn't appear to show that, yes. Brandon Smith Reporting 91 1 Q Okay. I'm asking you that ma'am because you 2 were very clear in the last session that we got to look 3 at your calendars to refresh your recollection for us 4 to know what you would have been doing during a period 5 of time and you were very specific in saying 2000. Do 6 you recall that? 7 A I recall that's it's been a while since I 8 looked at my 2000 calendar. 9 Q Okay. But what you're saying now is that we 10 can't rely on Exhibit 10 to tell us what you did during 11 the day for that period? 12 A I don't believe Exhibit 10 has the correct 13 information on it. 14 Q And as you sit here today even with the 15 explanation do you know of a calendar that exists that 16 would contain the correct information that would allow 17 us to know what you were doing? 18 A I'm not sure I would have to do a little more 19 investigation on that. 20 Q Okay. And when you answered the questions to 21 interrogatories in this case and you indicated we could 22 rely on what the secretary of state's office was 23 producing, this was the calendar you were referring us 24 to specifically in your answer, do you recall that? 25 A Yes. Brandon Smith Reporting 92 1 Q Okay. But there is some other document, 2 right? There is some other document you think that 3 would be more -- 4 MR. HORTON: Objection. I thought she 5 said -- 6 MR. GERSTEN: You're right. Bad 7 question. 8 BY MR. GERSTEN: 9 Q Moving onto Exhibit 12, ma'am. Can you take 10 a look at this calendar and indicate -- and confirm for 11 me this is the calendar covering the time period of 12 February 2002 through this one goes through March 13 2002? 14 A Yes. 15 Q Okay. Now, looking at Exhibit 12 at page 16 147, ma'am. 17 A Yes. 18 Q Could you indicate to me -- first of all we 19 have some personal days noted on this one, right? 20 A Yes. 21 Q Okay. So we're not -- are you claiming 22 strike that. 23 Can you identify those entries on this 24 calendar, just this week's worth of calendar that 25 reflect the time you claimed was spent practicing law Brandon Smith Reporting 93 1 as the secretary of state? 2 A Well, for instance, on the 19th I was talking 3 to two -- three media outlets regarding the address 4 confidentiality program, which is now a matter of state 5 law, which was the subject of a law revision commission 6 study to help us create it and we advocated it for 7 legislation to create it within our office and it is 8 now part of state law and it is administered in our 9 commercial recording department. 10 Q Okay. That's the day that's marked as 11 president's day, right? 12 A Correct. 13 Q Any other instances? 14 A Yes. On Wednesday, the 20th, I was 15 testifying at a government administration and elections 16 hearing. 17 Q Okay. 18 A So I was speaking about bills that would 19 affect our office and that I'm sure our office was 20 supporting. 21 Q Okay. Any other entries on this particular 22 page reflecting the work you claim you did as 23 practicing law? 24 A Those would be reflective of work that we 25 were doing in our office. Brandon Smith Reporting 94 1 Q Okay. Just so I'm clear because I'm 2 concerned about some prior testimony. You do have 3 marked down here things like visits to the doctor or 4 physical therapy I'm presuming is a doctor type visit. 5 Is that -- you have personal date information on this 6 calendar that -- 7 A Yes and that should have been removed. 8 Q When you say it should have been removed, why 9 should it have been removed? 10 A Because doctor's visits are not disclosed 11 under freedom of information. 12 Q Okay. 13 A Sorry. 14 Q But in terms of giving a full picture of how 15 the secretary of state spends her day, this page, for 16 example, reflects how you spent your day during each 17 day this week, correct? 18 A It certainly reflects things -- particular 19 things that I did. 20 Q And it includes personal information? 21 A It does. 22 Q Now moving onto the next week let me restate 23 that just for a moment. For the week then of February 24 17th if we take what you identified here we have 25 approximately four hours and 30 minutes of time during Brandon Smith Reporting 95 1 that week that you spent practicing law, if I add up 2 everything correctly? 3 A No, because there were other things that I 4 could have been doing and -- I'm sorry can you restate 5 the question, please. 6 Q Sure. Based upon your testimony in your 7 reference to your calendar, letting us know that this 8 would reflect your activities, the activities that are 9 reflected in this calendar week total approximately 10 four hours and 30 minutes of time spent practicing law 11 based upon our review of this document; is that 12 correct? 13 A Yes. 14 Q Now, ma'am, going to the next page, which is 15 February 24th and we're moving into March now, would 16 you be kind enough to identify those entries that you 17 claim support your position that you were engaged in 18 the active practice of law during this week? 19 A One example is we were advocating for our 20 address confidentiality program that later became law 21 on the 26th of the month. 22 Q Would that be the interview with Mr. Thompson 23 that you're referring us to? 24 A That would be correct. And also that would 25 be one public thing. Brandon Smith Reporting 96 1 Q And when you say one public thing what are 2 you referring to ma'am. I'm looking for any evidence 3 on this document, public, private, semipublic, 4 semiprivate? 5 A Because this doesn't record everything that I 6 did in the administration of my office. 7 Q Okay. But again, this is the only document 8 we've been able to see that reflects it just as you 9 said to us in your earlier testimony, this will help 10 you refresh your recollection? 11 A Yes, although excuse me, let me add that I 12 have several meetings noted on the 27th regarding the 13 centralized voter registration system and getting all 14 of the towns to join that system and it was critical 15 that all towns be on it because the Help America Vote 16 Act was in the process of being drafted in 2002 and I 17 advocated for providing that every state have a 18 centralized voter registration system and West Hartford 19 was not on it, I believe Mr. Harris was the mayor and I 20 met with him to ask him include his town and to get his 21 town to be part of that. 22 I also have meetings with at least one 23 legislator Mary Eberly, and I presume that's about 24 legislation. 25 Q Okay. Anything else? Brandon Smith Reporting 97 1 A That would be it. 2 Q All right. So if I add this week up 3 correctly you've got an hour 45 minutes that you can 4 identify as having something to do with the practice of 5 law for the week of February 24th, 2002 to March 2nd, 6 2002, correct? 7 A Yes. 8 Q Great. Moving to the next page, March 3rd, 9 2002. I'm going to ask you again to go through this 10 and identify those instances in which you indicate that 11 this calendar reflects activities that you think 12 support your position you were engaged in the practice 13 of law? 14 A There is a meeting with mayor positive lack 15 that could have been about our centralized voter 16 registration. 17 Q Can you refer me to the date, ma'am? 18 A I'm sorry that would have been -- 19 Q Oh, the 4th. Okay? 20 A The 4th. 21 Q Yes. 22 A And also there is a meeting about the voting 23 alternatives commission meeting and at that point we 24 knew that we were going to have to start looking at new 25 voting technologies so that we could be compliant with Brandon Smith Reporting 98 1 the federal law, and also we were working on state law 2 changes as well. So that's another example. 3 Q And what date is that, ma'am? 4 A That would be on the 4th as well. 5 Q Okay. Any other things on this page? 6 A Yes. And there was my prep time for 7 testimony to -- and I often had preparation scheduled 8 to go over testimony on particular bills and advocacy 9 before -- generally the government administration and 10 elections committee. 11 Q Are you referring to the entry on the 8th? 12 A Yes. 13 Q And MMG would be whom? 14 A Maria March rain that Greenslate, my 15 deputy. 16 Q So that's a meeting you're having with a 17 deputy? 18 A Yes. 19 Q Concerning preparation time for testimony and 20 that's considered by -- 21 A Yes that is a meeting to go over testimony. 22 Q And in that testimony is activity that you 23 claim supports your position that you are actively 24 practicing law as secretary of state, correct? 25 A Yes, because the monitoring of legislation, Brandon Smith Reporting 99 1 testifying in favor of or against particular 2 legislation is the practice of law. Also I would 3 direct you to March 7th. We have regular policy 4 meetings and at those we discuss various pieces of 5 legislation. There is a Maria meeting and a policy 6 meeting and when we had policy meetings, we would talk 7 about various pieces of legislation that would be 8 proposed at the legislature. 9 Q And again that would be a -- when you call it 10 policy, that's public policy meeting, right? 11 A Or legislative policy. 12 Q Okay. Now, if I add that up correctly now 13 then I'm talking about one hour, hour and a half, 14 probably a total of six hours that week that you spent 15 actively practicing law that week, based upon your 16 documents? 17 A Yes. 18 Q Good. I'm going to ask you to move to the 19 next page, ma'am, of March 10th. And on a typical day, 20 ma'am, when do you show up at your office when you 21 engage in the active practice of law? 22 A Around 9:00-ish, 9:00. 23 Q What time do you consider closing day, 24 closing of the day? 25 A When the work is done. Brandon Smith Reporting 100 1 Q And generally speaking, when would that be? 2 A It really depends because I work, you know, 3 whenever it's necessary, whether it's on a Sunday, 4 whether it's on a Saturday, whether it's on a holiday, 5 whether it's in the evenings, whether it's in the early 6 morning. 7 Q All right. So you're not limiting yourself 8 to a 40 hour week, correct? 9 A What does that mean? 10 Q In order to earn your pay as secretary of 11 state, you don't consider that to be something that a 12 9:00 to 5:00 job, am I correct? 13 A No. 14 Q And you wouldn't consider yourself to be 15 somebody who works only 40 hours a week on a general 16 basis, correct? 17 A No. 18 Q And that would be throughout your career here 19 from 2000 to today you work more than 40 hours a 20 week? 21 A I do. 22 Q Great. During the week of March 10th, ma'am, 23 could you point out those instances in which you 24 indicate that you were engaged in the active practice 25 of law? Brandon Smith Reporting 101 1 A Yes. 2 Q Go ahead. Would you be so kind? 3 A It looks like on Sunday evening it starts to 4 say prep for and it looks like testimony, because then 5 the next day on the 11th I prepared for my testimony 6 before the G A E hearing and the judiciary hearing as 7 well. 8 Q So if we got that Sunday highlighted. Then 9 we got the judiciary committee hearing? 10 A A testimony prep from 10:15 to 12:00 and then 11 the G A E hearing from 12:00 to 1:00 and then the 12 judiciary hearing from 2:00 to 4:00. 13 Q Okay. Any other occasions that you see 14 marked in your calendar that reflect activities that 15 you engaged in the practice of law? 16 A Yes. There is a reference on the 12th to E D 17 R and CVR. It looks like I was speaking to the media 18 about election day registration in our centralized 19 voter registration bills, which were pending. 20 Q Any other occasions? 21 A Those are the ones that I see right there. 22 Q Okay. Now, in your entry on Monday when you 23 were at the G A E committee and at the judiciary 24 committee, you didn't represent to either of those 25 legislative bodies that you were an attorney, Brandon Smith Reporting 102 1 correct? 2 A No, because I sat on the judiciary committee 3 when I was in the legislature for six years and many of 4 the members already knew that. I didn't feel it was 5 necessary. 6 Q Okay. Whether you thought it was necessary 7 or not, if someone is just sitting out in the audience 8 and listening to you talk, they didn't know you, you 9 didn't do anything to identify yourself as I'm here as 10 the secretary of state and I am an attorney letting you 11 know about my position on these issues, correct? 12 MR. HORTON: I object because you went 13 overall this last time. 14 MR. GERSTEN: Actually, I didn't. But 15 go ahead. 16 BY MR. GERSTEN: 17 Q Madam Secretary? 18 A No, I did not indicate I was a lawyer to 19 either committee. 20 Q And would you agree with me, ma'am, that 21 members of the public sitting in on those hearings, 22 those were members of -- if they live in Connecticut, 23 those are constituents of yours, right? 24 A Yes. 25 Q And those are people you consider to be I Brandon Smith Reporting 103 1 think you used the word clients also, didn't you? 2 A Yes. 3 Q And there's no way that anyone listening to 4 you speaking that day on March 11th for looks like four 5 hours would have known that you were talking as a 6 lawyer unless you told them that, correct? 7 A Not specifically. It is a very small world 8 at the Capitol, however. 9 Q Okay but we're not talking about people who 10 are members of a small world we're talking about 11 members of the people sitting there watching you 12 testify. No members of the public would know you're a 13 lawyer when you are talking would they unless you 14 identified yourself? 15 A Unless they had personal knowledge. 16 Q Okay. Miles Rappaport got up there and 17 testimony like you did? 18 A He certainly did. 19 Q As did every other secretary of state before 20 you, correct? 21 A Yes. 22 Q And they -- we've already established they 23 weren't lawyers? 24 A Yes. 25 Q So there is nothing you said to identify you Brandon Smith Reporting 104 1 to members of the public who didn't know you that you 2 were speaking as an attorney when you spoke, correct? 3 A Correct. 4 Q I'm going to move onto the next week for a 5 moment, ma'am. Oh, I'm sorry let me go back to one 6 thing I missed it. On the 16th, it said preparation of 7 ethics filing. What was that, ma'am? 8 A Oh, that's just ethics filing that all public 9 officials are required to file in May. 10 Q Okay. And that's something that as secretary 11 of state, you're required to file because you are a 12 public official? 13 A Yes. 14 Q And as a public official, you are involved in 15 matters of public policy, aren't you? 16 A Yes. 17 Q Okay. Moving to the next week. We got a 18 bunch of entries here relating to a lot -- appears to 19 me to be personal items, correct? 20 A Yes. 21 Q Okay. So would it be correct -- 22 A I'm not sure why they printed out several 23 times but -- 24 Q No problem. Looking at this document, ma'am, 25 can you identify the time that's reflected here where Brandon Smith Reporting 105 1 you are engaged in the practice of law? 2 A Yes. We are -- on a couple of occasions I 3 have meetings with representative dies son and also 4 there is a reference to a league of women voters panel, 5 and when I speak with the league of women voters that 6 is on the 18th, it is to advocate for changes to our 7 election system. 8 Q Okay. Any other indications on your calendar 9 here of your activities and where you practice law? 10 A I think that's it for that anyway. 11 Q That's great. Moving to the week of March 12 24th of that year. Do you see any reflexes of 13 activities you engaged in where you were seeking -- in 14 where you were engaged in the practice of law? 15 A Yes. 16 Q And when is that, ma'am? 17 A That would be on the 27th of the month 18 preparing for a press conference on voters with 19 disabilities issues on the 28th, because one of the 20 issues with the Help America Vote Act has to do with 21 making sure that voting technology is accessible to 22 people with disabilities. Also there is a meeting with 23 registrar regarding the centralized voter registration 24 system and still we were engaged in this effort to make 25 sure that all of the towns would participate and it was Brandon Smith Reporting 106 1 not until 2004, 2005 that all of the towns became part 2 of that system and that all of the towns were part of 3 it. And then there was a press conference on the 28th 4 regarding voters with disabilities issues. And again, 5 this is a civil rights issue. 6 Q Okay. Are you the draftsman of this civil 7 rights law that you're referring to? 8 A I advocated for provisions that were 9 ultimately put into the Help America Vote Act with 10 respect to the centralized voter registration system 11 and one of the marriage tenants in the Help America 12 Vote Act is to ensure that people with disabilities 13 could vote privately and independently and it is part 14 of my job as the chief elections official for the state 15 to make sure that our state complies with federal civil 16 rights law. 17 Q Okay. Now, by the way you had a meeting with 18 rabbi Alan Lazowski by the way on the 25th? 19 A Yes. 20 Q Was that a fundraising meeting? 21 A No. Rabbi Lazowski is the -- I don't know if 22 chaplain is the correct word but he is the -- he is 23 often one of the people who says the prayer at the 24 beginning of the session. 25 Q So you were meeting with him in connection Brandon Smith Reporting 107 1 with him giving the prayer at the beginning of the 2 session? 3 A No. That was just a personal meeting. 4 Q It wasn't any kind of fundraising activity? 5 A I don't believe so. 6 Q Okay. I'm going to move onto another April. 7 April 6th and have this -- starts at 206 and have this 8 marked as an exhibit. 9 10 (Defendant's Exhibit 14: Marked for 11 identification.) calendar April 12 2003. 13 BY MR. GERSTEN: 14 Q Ma'am, you recognize this as part of another 15 portion of your calendar that we've had produced to 16 us? 17 A Yes. 18 Q And if you would be kind enough to take a 19 look at page 206 of Exhibit 14, can you identify those 20 entries on this page that you claim support your 21 position that you are engaged in the active practice of 22 law? 23 A Yes. There are meetings with legislators, 24 senator Harp and Representative Montilla noted on the 25 7th. And also there is a policy meeting where we -- Brandon Smith Reporting 108 1 our staff members would often discuss legislative 2 issues. 3 Q What date is that you're referring to me? 4 A I'm sorry, that would be the 9th. 5 Q Okay. 6 A Oh, and also on the 10th of April, there is a 7 meeting with Maria regarding the direct primary and it 8 may have been around this time that the -- we had to 9 rewrite the direct primary laws because there was a 10 challenge to the Connecticut primary law, so I'm not 11 sure of the time frame but that could have been about 12 that. 13 We had a group that our office put together 14 involving the legislature and the parties regarding 15 direct primary and just going back to your policy 16 meeting that you indicated here with Babette Mantilla. 17 Who -- in looking at this document, besides Babette, 18 are you able to identify anyone who participated in 19 that policy meeting. 20 A Generally it was Maria, my legislative 21 liaison, Babette my chief of staff. 22 Q So it would be your chief of staff, your 23 scheduling person Maria? 24 A My deputy, some of my executive staff. 25 Q Okay? Brandon Smith Reporting 109 1 A Legislative liaison, my scheduler, my chief 2 of staff, my deputy, my press secretary. 3 Q Press secretary, too? 4 A Yes. 5 Q So that's everything this week. What about 6 the next week? 7 A The -- on the 14th I had a speaking 8 engagement regarding the Help America Vote Act and that 9 was on the 14th. And on the 15th, we had one of our 10 registrar of voter conferences and that would be at the 11 point where we would -- our office would be presenting 12 information as to how to comply with election laws and 13 it was -- this would have been a time when we would 14 have been explaining to the registrar the new 15 requirements in the Help America Vote Act and what that 16 might mean and we would also be talking about some of 17 our legislative initiatives. 18 Q That's the one you did at the Mohegan Sun? 19 A That's right. 20 Q Any other instances besides that occasion at 21 the Mohegan Sun when you were practicing law that 22 week? 23 A Yes and there was a Help America Vote Act 24 meeting on the 16th and under the Help America Vote 25 Act, states were required to prepare state plans and we Brandon Smith Reporting 110 1 had a very large committee of people who participated 2 in the discussing and creating of our state plan. 3 Q And by the way, ma'am, in those meetings that 4 you had either at the Mohegan Sun or this second 5 meeting that you mentioned, did you tell everybody 6 you're a lawyer? 7 A No. 8 Q You were speaking from your position as 9 secretary of state, correct? 10 A Correct. 11 Q Any other occasions in which you claim your 12 calendar supports your position that you were engaged 13 in activities that week showing that you were 14 practicing law? 15 A Yes. There are other interviews with the 16 press and there is one on the 15th that says regarding 17 direct primary. I believe this was the time where 18 there was a lawsuit involving the direct primary and 19 the legislature was required to rewrite our primary 20 law. 21 Q Okay. Anything else on this page? 22 A That's it. And there is actually on the 16th 23 there is an interview with respect to voting machines. 24 And again in 2003 we were beginning to educate people 25 about how we, as a state, had to comply with the Help Brandon Smith Reporting 111 1 America Vote Act and federal civil rights law and the 2 steps our state was taking in order to make sure that 3 we were in compliance. 4 Q And your testimony today is that when you 5 give an interview and educate people about how we're 6 going to comply with the new law, you are acting as an 7 attorney when you give these interviews in your 8 capacity as secretary of state? 9 A Yes. 10 Q Okay. And if I ask you to take a look at the 11 next week, ma'am, of April 20th. 12 A Yes. 13 Q Could you identify the occasions in which 14 this calendar reflects that you are engaging in 15 activities that demonstrate that you were engaged in 16 the practice of law? 17 A Yes. Because there are various references to 18 conversations concerning our centralized voter 19 registration system where we were advocating for 20 mandatory CVR legislation at the state level and it was 21 already part of the Help America Vote Act, so I'm 22 referring to the 22nd. And also -- 23 Q Could you slow down for a moment. What entry 24 on the 22nd are you referring to there, ma'am? 25 A The telephone conference with Maria. Brandon Smith Reporting 112 1 Q Thank you. That's why I wanted to make sure 2 we had that. And also there are various legislative 3 meetings, there is representative Boukus on the 25th 4 and there is a telephone conversation with Marisa 5 Morello and Mary para seen no regarding Help America 6 Vote funding because there are various types of funding 7 there were available under that law. And we were in 8 the process of making sure that our state applied for 9 the correct funding? 10 Q Okay. So we've got those two telephone calls 11 this week. Any other occasions on this week? 12 A Yes. And there is a meeting with Ralph 13 Cappanara regarding a direct primary question. And 14 that could have been about the issue with respect to 15 how you go about primarying. 16 Q So that week between the two telephone calls 17 and the discussion with Ralph, we've got 32 and a half 18 hours worth of time you spent either on the telephone 19 or in person engaged in the practice of law that 20 week? 21 A Among other things, yes. 22 Q Then I'm going to turn you to the following 23 week of April 2003. 24 A Again, we have a number of calls and meetings 25 regarding the Help America Vote Act and other election Brandon Smith Reporting 113 1 law topics. So for instance, on Monday the 28th the 2 conference call regarding the Help America Vote Act 3 meeting with my deputy with two staff people regarding 4 the help America Vote Act. A meeting with 5 representative Heislope and the interview regarding 6 election day registration in our centralized voter 7 registration system also on the 28th. 8 Opt 29th, we again had one of our HAVA 9 meetings at the legislative office building that we 10 were required to have by the Help America Vote Act to 11 put together our state plan and various conversations 12 with my deputy and the attorney general about Help 13 America Vote topics and we were starting as well to 14 begin to make a transition to start looking for which 15 types of voting machines would meeting the Help America 16 Vote Act. 17 And. 18 Q Looks like he even had a telephone call with 19 your attorney there on the 29th concerning HAVA? 20 A Why, I did. I mentioned that I had a 21 telephone call with Richard Blumenthal and my deputy 22 Maria Greenslade is an attorney as well. 23 Q Well, you're not saying that your deputy 24 excuse me, you're not indicating that because your 25 deputy is an attorney that she's your lawyer too, Brandon Smith Reporting 114 1 right? 2 A She was a lawyer who worked in my office. 3 Q Okay. Did she do legal work? 4 A Yes. Absolutely. 5 Q Okay. And is -- when you -- I'm sorry, keep 6 going. I'm sorry. Any other instances in which you 7 claim you've engaged in the practice of law this week? 8 A Also a conversation that I see with my deputy 9 on the 2nd of May. 10 Q Okay. Is that the one that says office 11 issues or voting machines? 12 A That would be voting machines. 13 Q Okay. So your testimony is -- 14 A And office issues could have perhaps 15 included -- 16 Q Your testimony is any time my deputy and I 17 talk about voting machines, we're practicing law 18 because she's an attorney and I'm an attorney? 19 A No. 20 Q Okay? 21 A Because when we are talking about voting 22 machines, we are talking about the search and the task 23 that we were charged with under the Help America Vote 24 Act to find voting machines that would comply with the 25 various several rights component of the Help America Brandon Smith Reporting 115 1 Vote Act, namely that there be voter verified paper 2 trail and also that those machines would be accessible 3 to people with disabilities. 4 Q Now on Thursday the 1st I see you had a 5 personal meeting there that's included on your office 6 calendar, right? 7 A Yes. 8 Q And that's a personal meeting with up dike 9 Kelly? 10 A That was a personal meeting at up dike 11 Kelly. 12 Q Oh, I see. Was that one of your volunteer 13 lawyer meetings? 14 A I'm not sure what that was, but it was a 15 personal meeting. 16 Q Was that a fundraising meeting? 17 A I'm not sure. 18 Q Do you engage in fundraising during the 19 middle of the day at all? 20 A When I have a campaign, I have a separate 21 office set up outside of my secretary of the state 22 office and a separate committee set up to assist in 23 fundraising. 24 Q Okay. Could I have the -- I think the 25 witness may have misunderstood my question. I was Brandon Smith Reporting 116 1 wondering if we could give it back to her so she could 2 answer the question, please? 3 4 (The testimony was read.) 5 6 A What do you mean by middle of the day? 7 BY MR. GERSTEN: 8 Q Well, I'm looking at a calendar April 27th, 9 2003 through May 3rd, 2003, for example. If I was 10 going to refer to the middle of the day I would say 11 somewhere between 11:30 and 2:30. Does that better 12 define it? I'm trying to figure out your day. That 13 looks like the middle of your very, very long day. 14 Would I be correct? 15 A Yes. 16 Q Okay. If that definition is accepted by you, 17 could you tell me do you engage in any fundraising 18 activities during the middle of the day? 19 A It depends. 20 Q What does it depend on? 21 A Whether I have a campaign and whether I am 22 doing fundraising. It depends on whether I have a 23 campaign first of all and I do fundraising on my own 24 time. 25 Q Okay. Well, let's take over the past three Brandon Smith Reporting 117 1 months. Are you in a campaign? 2 A Yes. 3 Q Okay. Do you engage in any fundraising for 4 that campaign? 5 A I do. 6 Q And do you engage in any fundraising during 7 the middle of the day for the campaign that you've been 8 engaged in over the past three months? 9 A It depends. 10 Q And what does it depend upon? 11 A The day. 12 Q Okay. When's the last time you engaged in 13 any fundraising during the middle of the day? 14 A When I took a day off on I believe March 15 29th. 16 Q Okay. And before March -- and you engaged in 17 campaigning fundraising on March 29th, is that your 18 testimony? 19 A Yes. 20 Q And prior to March 29th, did you engage in 21 any fundraising during the middle of the day? 22 MR. HORTON: You mean ever or this 23 year. 24 MR. GERSTEN: This year. 25 BY MR. GERSTEN: Brandon Smith Reporting 118 1 Q In the three month period since January? 2 A Yes. 3 Q When was the time before March 29th that you 4 engaged in fundraising your for your current campaign 5 during the middle of the day? 6 A Between that particular 11:30 and 2:00 time 7 frame is that what we're talking about? 8 Q That's how we agreed to define middle of the 9 day. Would you feel more comfortable with a different 10 definition? 11 A No that's fine. The answer is I don't know. 12 I know that on the 29th I took the day off to do 13 fundraising. 14 Q Okay. And would your calendar reflect 15 that? 16 A Yes. 17 Q So a calendar of March 29th would reflect day 18 off, correct? 19 A Yes. 20 Q Personal day? 21 A Yes. 22 Q Just like the personal day or vacation day 23 that you're taking to have your deposition taken, 24 right? 25 A Yes. Brandon Smith Reporting 119 1 Q Now, have you engaged in fundraising during 2 the middle of the day when you don't take a full 3 personal day off over the past three months? 4 A I could have. 5 Q Okay. Is there any element of doubt in your 6 mind? 7 A No. 8 Q So I ask you that Madam Secretary, because 9 could have sounds rather speculative. I just want to 10 make sure you're not speculating. 11 A I'm not. 12 Q Okay. How many times a week in March of 2010 13 have you taken time to make fundraising calls during 14 the middle of the day? 15 A I don't know. 16 Q Okay. What would you have to look at? 17 That's terrible. When you say you don't know is it 18 because you don't remember or you don't know? 19 A I have many things to do on a particular day, 20 so I'm not sure. 21 Q Okay. When you say you're not sure is it 22 because you don't remember or you don't know? 23 A . 24 MR. HORTON: I don't understand the 25 difference between those two. Could you -- I object Brandon Smith Reporting 120 1 to the question. It sounds like the same thing to 2 me. 3 A I don't remember. 4 BY MR. GERSTEN: 5 Q You don't remember. Okay. Is there a 6 document that you could look at to refresh your 7 recollection as to when you took time off to make phone 8 calls during the middle of the day? 9 A No. 10 Q Does someone keep a calendar for to you keep 11 track of your phone calls that you make for fundraising 12 during the middle of the day? 13 A No one keeps a calendar for that. 14 Q Okay. Is there a schedule of some type kept 15 for to you do that? 16 A No. 17 Q Okay. Are there any records of your 18 activities engaging in fundraising over the past three 19 months of your soliciting people? 20 A No. 21 Q Okay. How do you go about deciding how to do 22 it? 23 A I just take time as necessary. 24 Q Okay. And how do you determine when it's 25 necessary? Brandon Smith Reporting 121 1 A It depends. 2 Q And what does it depend on, Madam 3 Secretary? 4 A Whether I have a campaign and whether I have 5 a campaign going on and when I decide to take time to 6 do so. 7 Q And I'm only asking you over the past three 8 months because I think you can concede you had a 9 campaign going on over the past three months, 10 correct? 11 A Uh-huh. 12 Q Over the past three months, how many days a 13 week do you take time out to make telephone calls to 14 people to solicit money? 15 A I'm not sure. 16 Q And when you say I'm not sure, is it that you 17 don't remember or you don't have any idea how much time 18 you take? 19 A I don't remember. 20 Q Okay. And what document would exist that you 21 could look at to tell you, did I make those calls that 22 day to refresh your recollection? 23 A I don't have a document that -- to keep track 24 of that time. 25 Q Okay. Does your campaign keep track of phone Brandon Smith Reporting 122 1 calls you've made to people to solicit money? 2 A They keep track of commitments that I have. 3 MR. GERSTEN: Can I get my question 4 read back, please? 5 6 (The testimony was read.) 7 8 A Yes. 9 BY MR. GERSTEN: 10 Q Who keeps -- who at your campaign keeps that 11 record? 12 A My fundraising staff. 13 Q Okay. Is there someone in charge of your 14 fundraising staff? 15 A Omar Alam. 16 Q And is there a document that Omar keeps that 17 indicates that the secretary has come over to make this 18 phone call to Joe Smith to solicit money on a such and 19 such a day? 20 A Yes. 21 Q And does the document reflect that you made 22 the phone call? 23 A Yes. 24 Q And does the document reflect the day you 25 made the phone call? Brandon Smith Reporting 123 1 A Yes. 2 Q And does the document reflect the number or 3 names of people that you called that day? 4 A Can you ask that again? 5 Q Sure. Does the document that Omar keeps 6 reflect the number of calls or names of people you 7 called to solicit money that day? 8 A Yes. 9 Q And does the document reflect whether you 10 made if phone call during the middle of the day or some 11 other time period? 12 A No. 13 Q If you looked at the document, would it 14 refresh your recollection whether or not you made the 15 phone calls during the middle of the day? 16 A No. 17 Q They would just reflect you made phone calls 18 that period of the day? 19 A Yes. 20 Q If we took your calendar? 21 MR. HORTON: What period of day? I'm 22 sorry. 23 MR. GERSTEN: I'll restate it. 24 BY MR. GERSTEN: 25 Q If we took that document and we compared it Brandon Smith Reporting 124 1 to the calendars you've produced here, would we be able 2 to tell when the phone calls were made to these 3 people? 4 A No. 5 Q And why is that, Madam Secretary? 6 A We just don't date stamp everything or time 7 stamp everything. 8 Q Okay. We'll get back to it. 9 Now, moving to the next set of calendars. 10 We're all the way now up to 2004. Can I get this 11 marked? 12 MR. HORTON: While she's marking that I 13 would like to just have a second. I didn't get 2003, 14 by the way. 15 16 (Defendant's Exhibit 15: Marked for 17 identification.) May 2004 calendar. 18 THE VIDEOGRAPHER: Off the record, 19 3:32. 20 21 (Recess: 3:32 pm to 3:41 pm.) 22 23 THE VIDEOGRAPHER: Beginning of tape 24 number 4. On the record 3:41. 25 MR. HORTON: Eliot, in an effort to Brandon Smith Reporting 125 1 move things along I've spoken to my client over the 2 break and she's going to stipulate as follows, that 3 the Exhibit 14, which is the 2003 official diary is 4 typical of all the years since 2003 and that, you 5 know, certainly won't show any more of what we're 6 trying to prove in our case and what you see in 2003 7 for any of the years since then. And that she -- in 8 none of these cases in the years since has she used -- 9 mentioned that she was an attorney when she was acting 10 as a the secretary of the state. So I offer that so 11 to move things along that -- there aren't things that 12 we're going to be able to claim in any of the years 13 since 2003 says a had a, we've done more of what we're 14 claiming as legal work than we showed in 2003 in terms 15 of documentation. In terms of this diary for 2003 16 forward. That 2003 diary is typical for the years 17 since after and before for that matter. 18 MR. GERSTEN: I appreciate that I wish 19 you had told me off the record so we could put 20 together a stipulation that would work. And I really 21 don't want to take up transcript time in some extended 22 dialogue. 23 MR. HORTON: Can we go off the record 24 then for just a second. 25 MR. GERSTEN: Sure. Brandon Smith Reporting 126 1 THE VIDEOGRAPHER: Off the record 3:43. 2 3 (Recess: 3:43 pm to 4:12 pm.) 4 5 THE VIDEOGRAPHER: Beginning of tape 6 number 4. On the record, 4:12. 7 MR. GERSTEN: And for the record, Wes, 8 while we tried mightedly, it's pretty clear we couldn't 9 reach a stipulation that worked correct 10 MR. HORTON: We did not reach a 11 stipulation. 12 MR. GERSTEN: We can continue to try. 13 BY MR. GERSTEN: 14 Q Madam Secretary I'm going to ask you to take 15 a look now at the 2004 calendar? 16 A Yes. 17 Q And I'm going to ask you to identify the 18 entries for this time period which is again randomly 19 selected as May through -- May through the first week 20 of June 2004. And could you identify those activities 21 that are reflected here that you claim support your 22 position that you are engaged in the practice of law? 23 A Yes. One is on the 4th of May, the policy 24 meeting that we had at the Capitol with my executive 25 staff and also my conversation with Maria about Brandon Smith Reporting 127 1 legislative issues. I'm wondering about the 1:30 to 2 12:00:30 taping of the news maker show because I can't 3 see what the topic was but if it was about the Help 4 America Vote Act or election reform, because this was a 5 time period when our office was working on direct 6 primary legislation that could be it. So that's 4th. 7 And then I would always go to phone 8 conversations with Larry para seen no, my press 9 secretary and Lou Button who is an attorney in our 10 legislative lease is a son. And/or elections attorney 11 regarding legislation probably direct primary and Help 12 America Vote, since that seems to be the topic that was 13 being considered by the legislature in our office. And 14 also there is another meeting with my deputy where we 15 would go through a wide variety of -- 16 Q And what date is that, ma'am? 17 A Sorry. That would be May 6th. 18 Q That would be the hour long meeting with 19 Maria? 20 A Right. And then another same meeting with 21 Maria between 1:00 and 2:00 about the Help America Vote 22 Act and our office's compliance with that and 23 legislative issues on the 7th. 24 Q And ma'am, can I just refer you back to the 25 6th? It has a Windsor down committee meeting. That Brandon Smith Reporting 128 1 would be the democrats, correct? 2 A Yes. And actually, there is a republican 3 counsel committee meeting -- excuse me dinner on the 4 7th that I would just point out to you that I went to 5 the next day. 6 Q Okay. But you're not counting that one as 7 the practice of law? 8 A No. That was an awards ceremony. 9 Q Okay. So we found one dealing with my 10 client. Moving onto the next week, ma'am? 11 A Yes. 12 Q Could you identify the activities during this 13 week that you claim support your position that you are 14 engaged in the active practice of law? 15 A The policy meeting from 10:00 to 11:00 on 16 Wednesday, the 12th. And also my meeting with Maria on 17 the 13th of May. 18 Q Okay. And ma'am, I see you have noted here 19 the Jewish holiday Lag Bermer. Did you celebrate all 20 the Jewish holidays? 21 A No, I don't but we wanted to be sensitive 22 because we had a comment from a legislator that our 23 office scheduled an event on the Jewish holidays so we 24 tried to be sensitive about that and put that on the 25 calendar. There are other holidays on the calendar as Brandon Smith Reporting 129 1 well. 2 Q There are, it's just that's one I don't think 3 I ever heard of before? 4 A Me neither. 5 Q Have you learned what it celebrates? 6 A No. Sorry. 7 Q Okay. Moving onto the next week would you be 8 kind enough to identify those activities that you claim 9 support your position that you are engaged in the 10 active practice of law? 11 A That would be on the 17th of May, my 12 conversation with Maria about primary issues. There 13 are, as you head toward primary season, we often have 14 issues in large cities with respect to primary 15 questions. And so I have a meeting with Maria about 16 that where we are called upon to advise the candidates 17 and party members about legal issues with respect to 18 primaries. 19 Q Do you recall what the primary issue was in 20 connection with Bridgeport that you were referring 21 to? 22 A They have a lot of primary issues and every 23 primary season you can count on -- you can count on 24 getting calls from many large cities on primary topics. 25 I can't recall specifically what that was. Brandon Smith Reporting 130 1 Q Okay. 2 A Again, a -- I would note meeting with Maria 3 on Tuesday, the 18th from 2:00 to 3:00, and from 3:30 4 to 4:30 and it looks like not only was I meeting with 5 my deputy regarding HAVA, but there were certifications 6 that we had to sign, probably with respect to receipt 7 of federal funds. 8 On the 19th of May I had a meeting with my 9 deputy from 1:00 to 2:00 and also a policy meeting with 10 my executive staff from 10:00 to 11:00. 11 Q And what date was that, ma'am? 12 A That would be the 19th of May. 13 Q Okay. 14 A And Friday, there is a news makers taping I'm 15 not sure what the topic was, but it could have been 16 about legislation. So -- but I'm not certain. 17 Q So you would consider if it's about 18 legislation, that supports your position that you're 19 engaged in the practice of law? 20 A Yes to the extent that it involves 21 legislative advocacy. 22 Q And turning onto the next week, ma'am. Could 23 you tell us the instances that are reflected in your 24 scheduling that demonstrate you were engaged in the 25 practice of law? Brandon Smith Reporting 131 1 A Yes. On the 24th of May I spoke at the 2 reading league of women voters annual meeting with 3 provisions in the Help America Vote Act and what our 4 state was doing to comply with it and particularly with 5 respect to new voting machines and also there is a 6 conference call, it's not in chronological order on 7 that same day on the 24th, and you see representative 8 Kirkley bay called regarding the registrar of voters 9 primary in Hartford and I think this one was between 10 Ms. Surge on and Ms. Alvis and that was -- there was a 11 lot of issues with respect to that primary and who 12 could serve as checkers and whether someone who is a 13 registrar and is a candidate in that registrar of 14 voters primary had conflict of interest issues. 15 Q And you provided that advice as a function of 16 your office of secretary of state, correct? 17 A Correct. And then on the 25th, more 18 conversations with our deputy and representative 19 Kirkley bay about that primary and Hartford and 20 speaking at a league of women voters meeting in North 21 Haven on Help America Vote issues and our state's 22 efforts to comply with that. Also on the 26th, a 23 policy meeting with my executive staff. 24 Q Okay. 25 A And a meeting with my deputy between 9:00 and Brandon Smith Reporting 132 1 9:30 on the 27th of May. 2 Q And looking at the next page, ma'am, could 3 you identify the activities that are reflected on your 4 calendar that support your position that you were 5 engaged in the active practice of law? 6 A Okay. Meeting with representative Barry on 7 the 1st and on the 1st I -- looks I did some 8 constituent correspondence. I did not put down the 9 subject, but that could have been involving me going 10 through legislation or the legal rights and 11 responsibilities of a constituent. 12 The policy meeting on the 2nd of June between 13 11:00 and 12:00. And 1:30 to 2:00 there was a question 14 by Paul Hugh's regarding LLC's. There were a number of 15 pieces of legislation at various points that have been 16 proposed regarding LLC's, and probably had to do with 17 one of those legislative initiatives. 18 And another Maria meeting on Friday the 4th 19 between 10:00 and 11:00. 20 Q Okay. So we've got about five hours spent on 21 doing work according to your calendar that week that 22 you claim was done in connection with your practice of 23 law, correct? 24 A Yes. 25 Q Now, ma'am, are you aware of any statute Brandon Smith Reporting 133 1 authorizing you to provide legal advice to a 2 constituent? 3 A Yes. 4 Q What statute is that? 5 A That would -- 9 dash 3 and 4 provide for 6 legal opinions to election officials who are 7 constituents. And to provide advice to election 8 officials and others about compliance with election 9 law. 10 Q And is it your testimony that when these 11 opinions are issued by your office, this is an activity 12 that you engage in that is in the practice of law? 13 A Could I have that question again. 14 MR. GERSTEN: Would you reread it to 15 her, please? 16 17 (The testimony was read.) 18 19 A Yes. 20 BY MR. GERSTEN: 21 Q So every opinion that comes out of your 22 office is something that you claim demonstrates that 23 you as an individual are engaged in the practice of 24 law? 25 A Which opinions are we speaking about? Brandon Smith Reporting 134 1 Q Any legal opinion issued by your office? 2 A Yes. 3 Q So every legal opinion that's issued by your 4 office is done pursuant to a view you have that that 5 demonstrates that I, Susan Bysiewicz, as an individual, 6 am engaged in the practice of law? 7 A Yes, because I supervise the attorneys in my 8 office who provide them and they speak to me about 9 them. 10 Q Well, I've noticed in all these calendars 11 that we've gone through almost five -- five years 12 worth, there don't appear to be many references to your 13 meetings with staff attorneys in your office. Are 14 there? 15 A No, because most of these meetings are 16 meetings outside of our office. However, it is the 17 case, as I believe I mentioned, that when I testify at 18 a legislative hearing, often my attorneys Mike Kozik, 19 Ted Bromley, Lou Button, would meet me beforehand, come 20 with me, often our attorneys are present at policy 21 meetings. 22 Q Would you agree with me, ma'am, that for the 23 five years we've looked at so far, there's been no 24 reference to Mike Kozik anywhere? 25 A No. Brandon Smith Reporting 135 1 Q Okay. And we did a computer run, ma'am, and 2 there is about 15,000 entries on your computer covering 3 your 11 year term as secretary of state. Would it 4 surprise you to know that Ted Bromley appears on six of 5 them? 6 A It's not surprising. 7 Q Okay. Now, are there any other documents one 8 could look at to determine when you have engaged in 9 supervision of your attorneys working for you that 10 supports your position that you are engaged in the 11 practice of law? 12 A The documents that the attorney general 13 provided to you. Are examples of those. 14 Q Okay. Those are examples? 15 A Uh-huh. 16 Q So is it your testimony that if your name 17 appears on the document as being the secretary of 18 state, that demonstrates that you supervise the 19 attorneys who wrote it? 20 A Yes. 21 Q Okay. And is it your testimony that each and 22 every one of those documents that were provided by the 23 attorney general's office are documents that you 24 participated in drafting? 25 MR. HORTON: Objection. Would you say Brandon Smith Reporting 136 1 the end of that question again. 2 MR. GERSTEN: Participate in 3 drafting. 4 MR. HORTON: In drafting. Okay. 5 A Some of them, yes. 6 BY MR. GERSTEN: 7 Q Okay. Did you participate in drafting all of 8 them? 9 A No. 10 Q Okay. But it's your testimony that because 11 you are the head of the agency and because the 12 attorneys work for you, that demonstrates that you are 13 engaged in the practice of law when these attorneys are 14 issuing legal opinions on behalf of the secretary of 15 state? 16 A Yes, because often I am involved in 17 discussions about the topic with them, with my 18 constituents, with election officials, with my deputy 19 and executive staff and others. 20 MR. GERSTEN: We'll go to 2006, please. 21 This time it's September for a change. 22 23 (Defendant's Exhibit 16: Marked for 24 identification.) September 2006 25 calendar. Brandon Smith Reporting 137 1 BY MR. GERSTEN: 2 Q If you could look at Exhibit 16, ma'am. And 3 where does it indicate on this document that you are 4 engaged in the practice of law on the first page, 5 number 385? 6 A I am not certain about the topic of the press 7 conference. I'm going to assume that it's -- 8 Q What day is that, ma'am? 9 A Election related. That would be on the 11th. 10 Because there was preparation going on for that on the 11 11th from 12:00 to 1:30 and a meeting with respect to 12 it from 3:00 to 3:30 and there are meetings and 13 interviews regarding voting machine selection and this 14 may have been about the time that we selected a type of 15 voting machine that we thought would comply with the 16 Help America Vote Act I just can't be sure because, you 17 know, I don't have any more information. But it looks 18 like that from some of the other entries that appear 19 later on in the week on the 14th. 20 Q So I would be correct that your testimony is 21 that in connection with the secretary of state's 22 implementation of a mechanism to comply with the Help 23 America Vote Act, you personally are engaged in the 24 practice of law? 25 A Yes. Absolutely. Because it would be my job Brandon Smith Reporting 138 1 to make sure that our state complies with federal civil 2 rights laws and also with our election law. And so I 3 would count the meeting from 12:00 to 1:30 with Leslie 4 and 3:00 to 3:30 with Dan also preparation the next 5 morning and the meeting with our voter advocates group, 6 these were people who were concerned about having a 7 voter verified paper trail and were concerned about the 8 use of electronic voting machines. I would include the 9 press conference from 12:00 to 1:00 and the various 10 advocacy around that and on the 14th, from 10:00 to 11 12:00 we were doing a demonstration of the voting 12 equipment at the Sharon town hall to election officials 13 and mayors and first selectmen in that northwest corner 14 area and there was media interviews on that day as well 15 both in the morning from 9:00 to 9:30 and from 7:00 to 16 7:45 with respect to that. 17 Q All right. And that's all considered by you 18 to be the practice of law? 19 A Yes. 20 Q Great. And what about this mad son 21 democratic committee cocktail party. Do you see that 22 noted here? 23 A Yes. 24 Q That wasn't the practice of law, right? 25 A No. But I would point out that on Saturday, Brandon Smith Reporting 139 1 the 16th from 2:00 to 4:00 I was speaking to the 2 disability collaborative and I remember speaking at 3 that event about the voting machines that are -- that 4 we were choosing to be accessible to people with 5 disabilities. 6 Q And in the course of that, you did not 7 identify yourself as an attorney when you were speaking 8 at the disability collaborative forum, did you? 9 A No. 10 Q Now, this mad son democratic town committee 11 cocktail party, was that a function you engaged in as a 12 secretary of state? 13 A I was invited because I was the secretary of 14 the state. 15 Q Okay. Moving onto September 17th. Would you 16 be kind enough to identify those entries on your 17 calendar that reflect your practice of law? 18 A Yes. 19 Q Ma'am I'm going to interrupt you for a minute 20 because you made one statement earlier. Your testimony 21 is when you demonstrate how the voting machines work 22 you are engaged in the practice of law? 23 A Yes, because I am explaining the state and 24 federal law requirements and how our -- how our state 25 was complying with those. And also, you know, doing Brandon Smith Reporting 140 1 voter education as well. 2 Q Thank you. I'm sorry I interrupted you. You 3 were about to talk about the 17th? 4 A That was from 2:00 to 4:00 on September 5 18th. 6 Q Okay. And you didn't identify yourself as an 7 attorney when you gave that speech, did you? 8 A No. 9 MR. HORTON: We'll stipulate to that 10 for all cases. 11 MR. GERSTEN: Thank you. 12 A And from 12:00 to 12:30 on the 20th, I was 13 interviewed by Steve, and I believe it's Thrall, on 14 KRIS radio and we were starting to explain the 15 telephone system that is available for -- that we were 16 hoping to make available for people with disabilities. 17 And there was a voter advocate's meeting from 6:00 to 18 8:00 at the L O B. I'm wondering about the time 19 because it -- that -- and those voter advocates were 20 people who were concerned about making sure that we 21 adopted legislation in Connecticut to provide for 22 audits and a paper trail. And then on the 21st of 23 September, our office and I conducted a voter -- a 24 voting demonstration of the voting machines that we had 25 selected to comply with the Help America Vote Act. And Brandon Smith Reporting 141 1 from 11:00 to 11:30 about visited with Meriden record 2 journal because we wanted to build support for 3 legislation that we were beginning to seek support for 4 an audit legislation and also for the voting machines 5 that we had chosen for our state. And then the town 6 clerk conference at -- between 12:00 to 3:30 on the 7 21st where I spoke to the state's town clerks about our 8 preparations for the November election. And compliance 9 with the Help America Vote Act. 10 Also on the 22nd, a voting machine 11 demonstration at Bristol city hall with election 12 officials there from 10:00 to 11:00. 13 Q All right. So I noted that and it looks like 14 you spent a total of seven hours that week engaged in 15 activities reflected in your calendar showing that 16 you're engaged in the practice of law? 17 A I apologize but I would just take you back to 18 an interview with Sam Gingerella from 1:00 to 2:00 19 about the voting machines. And again, that is under 20 the topic of education and advocacy for the Help 21 America Vote Act compliance and the other -- 22 Q So when this secretary of state is being 23 interviewed about how the state is intending to 24 implement and comply with the federal law, you 25 personally are engaged in the active practice of law? Brandon Smith Reporting 142 1 A Yes. 2 Q Moving on to page 387 of the Bates stamp 3 documents which starts with September 24th. Could you 4 tell us -- 5 A Yes. On the 26th of September from 10:00 to 6 11:00 30, and -- we -- our office did a demonstration 7 and program with election officials in New London about 8 the voting machine technology and our compliance with 9 Help America Vote Act and then an interview thereafter 10 with channel 3 from 11:30 to 11:45. And also we did 11 another demonstration on the voting machine equipment 12 on the 27th between 10:00 and 12:00 in Norwich. And 13 from 1:30 to 3:00 we had a meeting with the league of 14 women voters talking about our office's compliance with 15 the Help America Vote Act and also with legislation 16 because we meet with the league on a regular basis and 17 advocate for changes to election law in collaboration 18 with the league of women voters. 19 Another voting machine demonstration in 20 Windham on the 28th of September from 10:00 to 11:00 21 with an interview there. And an editorial board 22 meeting about the new voting technology with the 23 romantic chronicle from 11:00:10 to 11:45. And I'm not 24 sure had a this -- 25 Q Okay. That's fair enough. So if we subtract Brandon Smith Reporting 143 1 the interviews with the media regarding the entries on 2 this calendar, on this particular calendar, the only 3 reflection that you engaged in the practice of law 4 would be your league of women voters meeting, do I 5 follow that correctly? 6 A I'm sorry are we subtracting the voting 7 machine meetings which were public meetings designed to 8 educate people about our -- 9 Q No I'm sorry I'm including that, too. Okay. 10 Thank you for that correction. Got it. Good point. 11 So if I do my totaling up here of the time 12 you claim you spend engaged in the practice of law, we 13 probably have about six hours that week, right? 14 A From this calendar, and again, I would just 15 continue to say that there is other work that I do that 16 doesn't necessarily get reflected on this calendar. 17 But if we're focused on the calendar, yes. The answer 18 is yes. 19 Q Well, again, I don't want to argue with you 20 ma'am and that's a fair comment you're making. But 21 when I asked you at the prior session what documents we 22 would look to to determine what you do every day, you 23 said my calendar would be what I would look at. 24 A Months -- 25 Q This is the calendar that we would be looking Brandon Smith Reporting 144 1 at, correct? 2 A Yes. But again, my calendar affects -- 3 namely reflects public events, not everything that I 4 might do during the course of a day. 5 Q Well when you call them public events we know 6 you also have personal days on here, personal meetings 7 because we've seen them, right? 8 A Yep. 9 Q And when you call them public events, we have 10 a lot of meeting with Tammy, that's within your office, 11 right? 12 A That's an internal meeting but not all my 13 internal meetings are reflected. 14 Q Okay. Have you seen any internal meetings in 15 any of the samples we've selected here of meetings with 16 staff attorneys? 17 A There was one that I just saw with Lou on 18 Exhibit 16 that I didn't point out. 19 Q You did point that one out. That was one? 20 A Okay. So not right here with the exception 21 of meetings that I might have noted with my deputy, who 22 is an attorney. 23 Q So is it your testimony that these calendars 24 do not accurately reflect how you spend your time as 25 secretary of state? Brandon Smith Reporting 145 1 A Doesn't reflect every minute of my day, no. 2 And I might have missed on the 12th of September a 3 meeting with Leslie, Dan and Lucian Pavlak, who was the 4 person engaged in working with our -- and is engaged in 5 working with our town clerks and registrar with respect 6 to compliance on the Help America Vote Act and I don't 7 believe I mentioned that and I just noticed it. 8 Q That's fair enough. That isn't considered to 9 be the administration of elections, is it? 10 A What is it? 11 Q Is implementation of compliance with the Help 12 America Vote Act the equivalent of administration of 13 elections? 14 A I would say not. 15 Q What's the difference? 16 A There are -- well, there are preparations 17 that go on by our office for elections, and also by 18 election officials for election, but when we're doing 19 that we are complying with state election law and 20 federal election law and it is my job to make sure that 21 our election officials do comply with those. 22 Q And so what's the difference between what you 23 are describing as what I'll call the practice of law 24 for the purposes of our discussions and the 25 administration of election laws? Brandon Smith Reporting 146 1 A Well, running -- I would say compliance with 2 election law and administration of elections are one 3 and the same in that we are helping our clients or our 4 election officials to carry out election law in a way 5 that complies with state and federal law. 6 Q And is it your testimony now that you 7 consider the administration of the election laws to be 8 the practice of law? 9 A Well, let me just clarify that there are 10 aspects of election administration, for instance, that 11 don't involve the active practice of law. A for 12 instance, making sure that there are enough poll 13 workers for our elections and that's an issue that we 14 have faced that's hard to get pole workers and we 15 actually had a program in anticipation of the 2009 16 election to train young people to be pole workers. And 17 that is an example of something I would put in the 18 category of election administration, making sure that 19 town clerks and registrar who are in compliance with 20 the Help America Vote Act by making sure that there are 21 telephones set up for people with disabilities to vote 22 in every polling place and that the privacy laws that 23 are in -- reflected in our state constitution are 24 followed by making sure people have privacy folders 25 when the ballots are distributed, I would say that that Brandon Smith Reporting 147 1 is -- that that encompasses the practice of law. 2 Q Oh, it does? 3 A Yes. 4 Q Making sure forms are submitted and complying 5 with that portion of the statute is considered the 6 practice of law? 7 A Making sure that voters vote is private and 8 making sure that our constitution is complied with and 9 educating election officials about that would be the 10 practice of law. 11 Q And it's the practice of law because you're 12 an attorney and not necessarily because you're the 13 secretary of state; am I correct? 14 A I am charged with giving advice to election 15 officials and making -- and giving legal advice in 9 16 dash 3 and 9 dash 4. 17 Q And I appreciate that, ma'am, but at the 18 beginning of our deposition you indicated that those 19 secretary of states before you who followed that same 20 statute were not practicing law simply because they 21 were following that statute; is that correct? 22 A Correct. However, I would argue that if they 23 were lawyers and engaging in those activities, they 24 would be. 25 Q And that is in fact your argument in this Brandon Smith Reporting 148 1 case, isn't it? 2 MR. HORTON: Eliot, we've been over 3 that. Please. 4 BY MR. GERSTEN: 5 Q Ma'am? 6 A Yes. 7 Q Now, we've covered a sample of 2006. Moving 8 along to 2000 -- looks like I skipped 2008. I 9 apologize for that. 10 BY MR. GERSTEN: 11 Q Showing you what we're going to have the 12 court reporter mark as Exhibit 17, starting with 487 13 through 494 covering the time period August 2008, 14 ma'am? 15 16 (Defendant's Exhibit 17: Marked for 17 identification.) calendar 2008. 18 BY MR. GERSTEN: 19 Q Looking at the first page, what would you 20 identify as your activities you engaged in reflected on 21 this calendar that constitute the practice of law? 22 A I believe this week was spent at the 23 democratic national convention, so I would not argue 24 that that was any of those activities show that. 25 Q Okay. So as of this week we had no time Brandon Smith Reporting 149 1 spent on the practice of law? 2 A Not reflected at this -- on this calendar. 3 Q Right for this week's calendar for the 4 secretary of state there is no activities reflecting 5 your engaging in the practice of law? 6 A Actually, one of these interviews with Chaz 7 and AJ, Chaz was considering running for the general 8 assembly and wanted to know -- oh, and he wanted to run 9 not as part of a major party and he wanted to know what 10 he would have to do in order to run and I believe it 11 was for the state Senate as someone who's not running 12 on either of the republican or democratic party ballot 13 label and I was explaining to him what he would have to 14 do in terms of collecting a petition of signatures or 15 perhaps trying to get another party that had ballot 16 access to nominate him. So -- and I would say had a 17 that would be giving a constituent advice about how to 18 run for a particular office and that would be engaging 19 in the practice of law. 20 Q Did you tell him you're a lawyer? 21 A I did not. 22 Q What's Chaz's name? 23 A You know I honestly couldn't tell you what 24 his last name is, but he's the host of the -- of a 25 morning show based in Milford. Brandon Smith Reporting 150 1 Q And who's AJ? 2 A That's the other -- that's his co host. 3 Q Okay. So this is -- 4 A The name of their show. 5 Q This is a radio show that you had and you 6 told them how the secretary of state would post 7 something about petitions and stuff like that? 8 A I told him what he would have to do if he 9 would like to be a candidate for the general 10 assembly. 11 Q Moving onto the next week, Labor Day weekend, 12 I guess. Do you see any entries that reflect your -- 13 A Yes. From 9:00 to 12:00 where I say 14 returning constituent calls and constituent 15 correspondence, to the extent that those calls were to 16 election officials who are my constituents or people 17 who wanted to get advice about elections, which is 18 often the case during the fall, that was the practice 19 of law. 20 Q Ma'am, can you tell me what documents would 21 reflect who you called that day or what constituents 22 you talked to that day? 23 A I'm not sure if I wrote a letter on that 24 particular day. That would be something that I could 25 point to. Brandon Smith Reporting 151 1 Q How many letters do you send out a day that 2 you wrote? 3 A I think it depends on the day. 4 Q Last week how many letters Madam Secretary 5 did you issue with your signature that you drafted? 6 A I'm not sure. 7 Q More than ten? 8 A I'm not sure. 9 Q More than 100? 10 A It depends on the day. And we do send out 11 regular communications to our election officials, so it 12 would just depend. 13 Q I'm afraid I wasn't clear. I'm not asking 14 you what your office issued, I'm asking you, Madam 15 Secretary, how many letters did you issue last week 16 that you drafted personally yourself? 17 A I'm not sure. 18 Q Is it that you don't remember or you just 19 don't know? 20 A I don't remember. I can tell you this: We 21 do constituent service reports in our office and so I 22 could tell you in 2010 we had -- excuse me, in 2007 we 23 had approximately a 400 constituent letters that I 24 worked on with my director of constituent services, and 25 in 2008 we had I believe 5 60 or so. And then in 2009, Brandon Smith Reporting 152 1 approximately 400. And I either write those letters 2 personally or work on them with my constituent service 3 director and I don't write every letter, sometimes I 4 make changes, sometimes I collaborate and sometimes I 5 speak with the constituent and suggest further research 6 or work and our constituent service director will 7 follow up and then I will sign correspondence that we 8 sent to our constituent. 9 Q That raises a very good question. You're not 10 claiming that every piece of correspondence you send 11 out to your constituents is an example of you 12 practicing law, is it? 13 A It depends on what the -- it depends on what 14 it is. 15 Q Maybe I didn't state my question carefully. 16 Are you claiming, Madam Secretary, that every piece of 17 correspondence that you send out to constituent 18 services constitutes an example of you personally 19 practicing law? 20 A No. 21 Q And there are many times when you send out 22 correspondence to constituents in which you say you 23 can't do anything to help them, they should go get 24 their own attorney; isn't that correct? 25 A What's the question again, please? Brandon Smith Reporting 153 1 Q Is it correct, ma'am, that many times you 2 have correspondence with constituents in which you say 3 you cannot give them the legal advice they seek and 4 they should get private counsel? 5 A I have said that on occasion, yes. 6 Q This is getting crazy. Sorry what was the 7 last question? 8 9 (The testimony was read.) 10 11 BY MR. GERSTEN: 12 Q Do you say that -- now, you've indicated that 13 you've probably written about a thousand letters to 14 constituents since 2007, 2008, 2009, you were pretty 15 clear how many had gone out? 16 A I was just -- yes. 17 Q Is there a record that you could refer us to 18 that would indicate where your numbers came from? 19 A Yes. For those particular years, yes, 20 because we asked our director of constituent services 21 to keep track and that's how I have those numbers. 22 Q And what's that record called? 23 A He does -- it's a report that he prepares on 24 an annual basis. It's like an annual report where he 25 writes about our constituent correspondence and types Brandon Smith Reporting 154 1 of issues and who we've helped and -- 2 Q And so if I were to indicate to the Office of 3 the Secretary of State that I'd like to get a copy of 4 that record, what is it I have to indicate that I'm 5 looking for in order to get that so that no one 6 questions the document we're looking for? 7 A That would be the annual reports prepared by 8 our direct tower of constituent services Val Ramos. 9 MR. GERSTEN: Mr. Attorney general. 10 Okay. STENOMARK. 11 BY MR. GERSTEN: 12 Q And you're not indicating here, ma'am, that 13 everyone of those correspondence ease constitute 14 evidence of you engaging in the practice of law, 15 correct? 16 A Not everyone. 17 Q Okay. And out of that survey of 1,000, how 18 many of those pieces of correspondence do you actually 19 review and sign yourself personally? 20 A Almost all of them. 21 Q And, in fact, you gave us three examples in 22 your answers to interrogatories that you wanted us to 23 rely onto say that this is proof of my practicing law; 24 isn't that correct? 25 A Yes. Brandon Smith Reporting 155 1 Q And would you include your correspondence 2 with that pine or charred country club as something you 3 engaged the practice of law in? 4 A I'd have to see that. 5 Q Okay. We'll come back to it. 6 A Okay. 7 Q In going to the 2008 calendar just for a 8 moment, ma'am, looking at September -- the week of 9 September 7th. Would you be kind enough just to 10 indicate which activities are evidenced in this 11 document reflecting your practice of law? 12 A Yes. On the 8th, preparation for 13 congressional testimony. On 11:30 to 12:30. 14 Q Yes. Okay. Go ahead. I'm sorry. Would 15 that be congressional testimony in the United States 16 Congress? 17 A It was I believe for the United States Senate 18 because senator Feinstein was holding hearings with 19 respect to President Bush's policy to ban voter 20 registration at veterans hospitals, and that was 21 regarding -- 22 Q You didn't identify yourself as an attorney 23 when you gave that testimony, did you? 24 MR. HORTON: You've already been -- 25 I've stipulated to that. Brandon Smith Reporting 156 1 A No. 2 BY MR. GERSTEN: 3 Q If I understand the stipulation attorney 4 Horton is making, am I correct, ma'am, that none of the 5 examples you provided to us from your calendar that 6 we've talked about today, in not one of these have you 7 identified yourself as an attorney when you say, this 8 is proof that I engaged in the practice of law, am I 9 correct? 10 A Correct. 11 Q Any other examples you'd like to point out to 12 us that you want to say support your claim that you are 13 engaged in the active practice of law? 14 A Yes. I would say that as we were preparing 15 for this press conference on this issue of the 16 president's ban on voter registration at veteran's 17 hospitals, we -- that that was the practice of law 18 along with that press conference and a discussions with 19 the reporters on that day afterward about it. 20 Q Okay. Now, during the following week, -- I 21 can represent to you ma'am that I got -- my secretary 22 gave me a note that judge she would done didn't want to 23 interfere with the deposition but he did want us to be 24 made aware that some TV station wants to broadcast some 25 hearing tomorrow with your case. And I was passing it Brandon Smith Reporting 157 1 along to -- 2 MR. HORTON: It's the -- 3 MR. GERSTEN: Identifies just passing 4 that along to your lawyer. 5 MR. HORTON: It's not important. 6 BY MR. GERSTEN: 7 Q Ma'am, take a look at the week of September 8 14th. I see you had a meeting on the 19th with George 9 Collie at the Enfield senior center do you see that? 10 A I do. 11 Q Okay. Was that a fundraising event, ma'am? 12 A I don't -- I don't -- I'm not sure. 13 Q Well, what would you and Mr. Collie be 14 meeting about if it weren't for fundraising? 15 A I'm not sure -- I don't know what that was. 16 Q All right. Is George Collie someone you've 17 solicited money from? 18 A Yes. But I don't remember on that particular 19 day what -- 20 Q Not a problem. Would you agree, ma'am, 21 George Collie has in fact contributed to your campaigns 22 in the past, correct? 23 A He has. 24 MR. HORTON: Did you finish your answer 25 from the previous question? Brandon Smith Reporting 158 1 THE WITNESS: I'm sorry, what was -- 2 MR. HORTON: I thought you were 3 interrupted. 4 A Pardon me. I would also like to add that I 5 remember talking to -- and I can't remember if this was 6 a meeting about this, but George Collie wanted to 7 discuss with me memorabilia that he had at a storage 8 facility of Ella Grasso's -- he had boxes of Ella 9 Grasso's memorabilia. I'm not exactly sure what it 10 was. And I remember talking to him about that stuff 11 that he had of hers. And I remember making some calls. 12 He was hoping to give it to the state library or 13 perhaps the -- her -- the college that she went to, 14 mount hole yolk. We were talking about what he could 15 do. And I can't remember if that meeting was about 16 that stuff that he had. But I remember having 17 conversations with him about that and I can't remember 18 if it was that particular time or another time. 19 Q Okay. And who's Matt Conway? 20 A Matt Conway was someone that is a state 21 representative. 22 Q And both of these fellows are democrats, 23 correct? 24 A Correct. 25 Q Now, on this week, you're not claiming those Brandon Smith Reporting 159 1 are activities engaged in the practice of law, are 2 you? 3 A No. 4 Q Okay. And during this week, can you identify 5 those examples that you claim support your position 6 that you personally are engaged in the practice of law 7 while serving as secretary of state? 8 A On the 18th of September I spoke at the 9 annual town clerk's fall conference where we would 10 speak about legislative changes affecting elections and 11 also talking about preparations for the presidential 12 election, which would be the first presidential 13 election that we have held with the HAVA compliant 14 voting machines. And also meeting with Leslie on -- 15 between 12:00 and 1:00 on Wednesday, the 17th. Are the 16 things that I -- 17 Q Okay. 18 A See. And also on the evening of the 17th 19 preparing for remarks and for my talk to the town 20 clerks the evening of the 17th. 21 Q And on the 16th, the lunch with Bob Martino, 22 is that the same Bob Martino that is here? 23 A It is. 24 Q Do you recall what you and Mr. Martino spoke 25 of then? Brandon Smith Reporting 160 1 A I'm not sure. 2 Q I've got one more set 6 calendars we can do 3 for you and then we can try to figure out what we're 4 going to do. This one I'm going to introduce the two 5 together as being -- 6 MR. GERSTEN: What number are we up to? 7 Court reporter court reporter 18. 8 MR. GERSTEN: 18 and 19. Make her out 9 look one 18, make the other one 19. 10 11 (Defendant's Exhibit 18: Marked for 12 identification.) calendar January 13 2010. 14 (Defendant's Exhibit 19: Marked for 15 identification.) calendar 2010. 16 BY MR. GERSTEN: 17 Q Mad am secretary could you take a look at 18 what we've marked now as Exhibit 18 and 19? 19 A Yes. 20 Q Okay. Do you recognize 18 and 19? 21 A Yes. 22 23 (Mr. Reynolds left the deposition.) 24 25 Q Okay. Exhibit 18 covers your appointments as Brandon Smith Reporting 161 1 secretary of state, correct? 2 A Yes. 3 Q And number 19, ma'am? 4 A Is my town committee and campaign schedule. 5 Q I'll represent to you, ma'am that number 19 6 was the one that we had to go to court to get a copy 7 of? 8 A Yes. 9 Q And many of the entries on 19 are the same 10 entries on 18; isn't that correct? 11 A They may be. I haven't had a chance to look 12 through the whole thing. 13 Q Take a moment? 14 A These pages are out of order. Just give me a 15 minute. 16 Q Absolutely. I'll take full responsibility 17 for them being out of order because I tried to make the 18 copies myself so I probably messed it up. 19 A I think this could be a duplicate. 20 Q Sorry about that? 21 A I don't know. Let's see. 81, 82, 83. This 22 is 89. 23 Q You're familiar with it now, ma'am? 24 A Okay. But -- okay. I'm just not seeing 25 January 1st here because I have my -- if we start at Brandon Smith Reporting 162 1 January 10th, that's fine. 2 Q We can start at January 10th. 3 A I'm confused because these calendars are -- 4 it's hard to look at them like this but can we -- why 5 don't you ask me about particular days and then I'll 6 try to find the day. 7 Q I'll try it a different way. Looking at 8 Exhibit 19 for a moment. Can you tell me who prepares 9 that? 10 A That would be -- that would be Zack at my 11 campaign. 12 Q Okay. And when Zack prepares it, there's 13 entries in here, for example, creator David at Susan 14 2010. Do you see that? 15 A Oh, that could have been David Mason, when he 16 was at our campaign in December, that was for a forum 17 that we probably got an invitation to, you know, I 18 don't know, a month or two months prior to the event. 19 Q Okay. But what I'm trying to figure out is 20 it says David for S O T S calendar. 21 A Right. The secretary of the state campaign 22 calendar. See it says S O T S at the top. 23 Q Right. So what does that mean? 24 A I'm the secretary of the state. This is my 25 campaign calendar. I don't think there's any Brandon Smith Reporting 163 1 significance beyond that. 2 Q Okay. So what this basically reflects then, 3 this is the calendar as it relates to you, 4 personally? 5 A The campaign, yes. My campaign. 6 Q Okay? 7 A Engagements. 8 Q Now, in looking at what you did as recently 9 as it looks like the most recent calendar we have is 10 dated March 7th through the 13th. 11 A Okay. Let me just find that. 12 Q Page 5 67? 13 A I'm sorry March what. 14 Q March 7th through the 13th. That's the last 15 one we received. 16 A Okay. 17 Q Can you indicate on this page what entries 18 reflect you engaging in the practice of law? 19 A On the 8th, testifying at the government 20 administration and elections committee. And that would 21 be that event. 22 Q All right. So for that week we have about 30 23 minutes of time supporting your claim that you engaged 24 in the practice of law? 25 A Yes. Brandon Smith Reporting 164 1 Q And you're not going to indicate to us that 2 anything that is contained in your campaign calendar 3 would reflect activities that you claim aren't 4 supportive of your practice of law? 5 A No. 6 Q And on the day you testified at the GAEC, 7 were you accompanied by counsel? 8 A Usually I am. Usually I have Ted Bromley and 9 Lou Button and sometimes Leslie Mara. 10 Q And on that day, weren't you asked questions 11 that you said I don't know the answer, you've got to 12 ask -- or words to the effect of you should ask our 13 legal counsel? 14 A We may have had a question directed at Ted 15 Bromley. 16 Q Right. And Ted Bromley would be the one it's 17 directed to because he's the one giving the legal 18 opinion from the secretary of state's office, 19 correct? 20 A No. 21 Q From his position? 22 A He may have just known the answer to that 23 question. 24 Q Okay. 25 MR. GERSTEN: Well, Wes it's a little Brandon Smith Reporting 165 1 bit after 5:00. It's probably a good time to try to 2 end this endurance contest. 3 MR. HORTON: Okay. But Eliot, I'm and 4 my client are prepared to go forward tomorrow morning. 5 If this. 6 MR. GERSTEN: What time you want to 7 start, Wes. 8 MR. HORTON: As early as possible 9 because I'm going to claim a protective order by 2:00 10 tomorrow afternoon this F this isn't done. There is 11 no sense in making speeches. We will come back 12 tomorrow morning to get this over with. And I will 13 have your document on the brief to the Second Circuit 14 with me tomorrow morning assuming we can put our hands 15 on it. So let's get this over with. 9:00 tomorrow 16 morning. 17 MR. GERSTEN: Just a few other 18 questions just so I know. 19 BY MR. GERSTEN: 20 Q Ma'am, appreciate your accommodations to us 21 here and I hope you appreciate we've been accommodating 22 your perception that you got to have this heard 23 quickly. Are there any -- is there anyone that you 24 intend to bring to court to testify that they could 25 support your claim that you engage in the active Brandon Smith Reporting 166 1 practice of law? 2 A Could you ask that question again. 3 MR. GERSTEN: Go ahead, madam court 4 reporter? 5 6 (The testimony was read.) 7 8 A You are asking who I intend to bring or would 9 I intend to bring someone to do that? And I would have 10 to discuss that with my counsel. 11 Q Okay. And you made reference before that 12 Leslie Mara has notes of discussions regarding the 13 practice of law issues we've been discussing here. Do 14 you recall that? 15 A I said that she sometimes makes notes of 16 conversations that we have with election officials who 17 are asking for advice. 18 Q Okay. Just so you're aware of this, ma'am, I 19 don't care if you go back and ask her or not but we've 20 asked for those kind of notes to be produced in this 21 case and we've been told they don't exist. So if you 22 have them or you have access to them through your 23 subordinate who works for you would be a good idea to 24 have those with you tomorrow? 25 MR. ZINN-ROWTHORN: We have made the Brandon Smith Reporting 167 1 request and we are verifying the response to the 2 request so we'll have an answer, you know, hopefully 3 by tomorrow morning. I can't promise we'll have it by 4 9:00 tomorrow morning. 5 MR. GERSTEN: Okay. Great why don't we 6 try to reconvene about 9:30 to get it done. 7 MR. HORTON: 9:30. 8 MR. GERSTEN: 9:30 won't work. 9 MR. HORTON: How about 9:00. 10 MR. GERSTEN: How about 9:30. 11 THE VIDEOGRAPHER: Off the record, 12 5:22. 13 14 (The deposition adjourned at 5:22 pm.) 15 16 17 18 19 20 21 22 23 24 25 Brandon Smith Reporting