Dubois-Mark
Attorney Mark Dubois ()

The difference between the “yes” votes and “no” votes were about as close as it gets.

In fact, the results of the Connecticut Bar Association’s referendum on whether it should as a group support the state’s recently changed gun control laws in an appellate court challenge were so close that the outcome was “called as a tie” by CBA President Mark Dubois.

Trouble was, some said, “It wasn’t a tie.”

To which Dubois replied, “Yes, it was.”

The difference was five votes, with 734 in favor of joining an amicus brief to defend the state’s gun laws, and 729 opposed, out of 1,463 votes cast.

The referendum was the latest chapter in a discussion that heated up earlier this summer, when the CBA’s House of Delegates approved a measure to join an amicus being prepared by the Brady Campaign to Prevent Gun Violence. The amicus is to be filed in the U.S. Court of Appeals for the Second Circuit to defend the state’s recently approved firearms control law against challenges brought by Second Amendment groups.

A significant number of CBA members opposed that decision, which led to the referendum. Over a five-day period ending July 19, ballots were emailed, faxed and mailed to members and submitted through the CBA website.

The process, Dubois admitted, was not entirely smooth, with some members having trouble accessing the website to vote. But with all votes counted, Dubois said the results could not justify joining the amicus. That did not sit well with all members.

Dubois said he was among many who supported joining the amicus. In a letter to CBA members announcing the results, Dubois wrote that since the difference after the votes were counted was “less than 1 percent of those voting,” he did not feel that “the best interests of the CBA would be served going forward without a clear and empirically defensible result.”

The discussion began in 2013, when the CBA’s House of Delegates approved supporting the gun control legislation that was passed in the wake of the 2012 Newtown school shooting. Then, several Second Amendment groups filed a suit against the Connecticut legislation that expanded the number of banned assault weapons and restricted ownership of large ammunition magazines. When a judge dismissed the suit, the groups appealed to the Second Circuit.

Responding to calls for support in response to that appeal, in late July, the CBA House of Delegates voted 34-15 in favor of joining the amicus in the case, Shew v. Malloy. That decision prompted lively debate about the CBA’s role, and whether it should or should not be involved in social or political issues as an organization.

From there, opponents of CBA involvement in the amicus gathered more than 50 signatures necessary, about 170 in all, to put the matter to a vote of the full membership.

In his letter to members, Dubois said there has been little to guide CBA leaders in the referendum process, given that no referendum has been issued before “that anyone could remember.”

He told the membership that if anyone wishes that he reconvene the House of Delegates of Board of Governors to countermand his ruling or take further action, he will do so. “However, I would urge us to move on,” Dubois said.

Dubois added that the process showed that while there was disagreement among members, one thing was clear. “We all share a deep and abiding faith that the CBA is a necessary and important enterprise,” he wrote. “Let’s all continue to work together to advance the association and our legal community.”

Still, there were those who remained less than pleased.

“It wasn’t a tie, and everyone’s expectation was that the majority of votes would decide the issue,” said David Pels, a CBA member and lawyer with Greater Hartford Legal Aid in Hartford.

Pels said he respected the opinions of those members who felt it was inappropriate for the bar group to get involved in a political or social issue. But at the same time, he said, “I thought it was appropriate for us to join the amicus.”

CBA member David Atkins of Pullman & Comley strongly supported the CBA’s decision to endorse the legislation that ultimately was enacted in 2013 as the Connecticut Gun Violence Prevention Act. He also supported the CBA House of Delegates’ decision in July to have the organization sign on to the Brady Center’s amicus brief.

“It was the opponents of the amicus proposal who, exercising their right under the CBA Constitution, insisted on overriding the House of Delegates’ 2 to 1 vote in favor of the proposal,” said Atkins. “They also insisted that the CBA leadership should sign on to the amicus brief only if a majority of the CBA rank and file agreed.”

He continued, “The majority of voting CBA members now has agreed, and done so through the very referendum process the override proponents demanded. It is bewildering, to say the least, that a victory has been awarded to the losing side.”

Although the CBA will not be moving ahead to support the gun control laws, the executive board of the George W. Crawford Black Bar Association plans to support the Brady Campaign brief.

Genea Bell, president of the Crawford bar group, had urged members who are also CBA members to cast their vote in favor of supporting the gun control law in the CBA referendum.

“For too long, gun violence has taken a disproportionate toll on black and brown communities,” Bell said. “As leaders, we have a duty to be a voice for those who do not have a seat at this particular table.”

Before signing on, the group’s executive board will review the Brady Campaign brief, which is due in court at the end of August.