Supremes Rule Against Sen. Joe Markley, says state cannot be sued over taxation

From the state high court’s decision against Sen. Joe Markley’s lawsuit against the state budget process. Here is the bottom line from the decision and footnotes.

“The plaintiff’s action arose from a financing order  

 

As19In the absence of a substantial claim that the defendantsaction is barred by the doctrine of sovereign immunity,1The plaintiff appealed from the judgment of the trial court to the Appellate2Due to the importance of the issues in this appeal, we granted the request3See Office of Legislative Research, Research Report No. 2009-R-0090,4Section 11 (c) of P.A. 98-28 also permitted the securitization of the fee,5Public Act 98-28, § 19 (e), did provide, however, that if a new municipal6Although the plaintiff represented himself at trial, he was assisted by7The plaintiff initially sought a temporary injunction prohibiting the defendants8Although the defendants’ motion to dismiss technically applied only to9Although the trial court’s discussion of the sovereign immunity defenseBacon Construction Co. v. Dept. of Public, 294 Conn. 695, 706, 987 A.2d 348 (2010); the issue is properly beforeFigueroa v. C & S Ball Bearing, 237 Conn. 1, 4, 675 A.2d 84510With regard to the trial court’s conclusion that it lacked jurisdiction11In its memorandum of decision, the trial court, citing Pamela B. v. Ment,

issued by the defendants pursuant to No. 10-179 of the

2010 Public Acts (P.A. 10-179), requiring that the state’s

two investor-owned electric power companies, Connecticut

Light and Power Company (CL&P) and United

Illuminating Company (United) (jointly, distributors),

continue to charge their rate paying customers a fee

that would otherwise have expired, with the proceeds

going to the state’s general fund. The plaintiff alleged

that the financing order constituted an illegal tax on

the distributors’ customers, issued in excess of the

defendants’ statutory authority and in violation of the

customers’ constitutional rights…

   

 

discussed previously, however, the plaintiff’s arguments

before the trial court focused exclusively on his

claims that the department is barred by its enabling

statute from imposing taxes, and that imposing taxes

only on certain ratepayers violates his right to equal

protection. Nowhere did he allege that while the

charges themselves are legal, the defendants somehow

misallocated them between the customers of CL&P,

United and the municipal electric utilities.

have exceeded their statutory authority, the

and, therefore, the trial court properly dismissed the

action for lack of subject matter jurisdiction.

The judgment is affirmed.

In this opinion the other justices concurred.

Court, and we granted the defendants’ motion to transfer the appeal to this

court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-2.

of the office of consumer counsel to appear as amicus curiae and to submit

a brief in support of the position advocated by the plaintiff.

‘‘Municipal Electric Utilities’’ (February 11, 2009), available at http://

www.cga.ct.gov/2009/rpt/2009-R-0090.htm (last visited May 12, 2011) (copy

contained in the file of this case in the Supreme Court clerk’s office).

allowing the distributors to recoup their stranded costs at the outset.

electric utility were established or an existing municipal electric utility

entered the competitive market, any of the distributors’ previous customers

who transitioned to municipal service would be required to pay the fee that

they would otherwise have paid to CL&P or United.

counsel on his appellate brief and counsel argued the matter on his behalf

before this court.

from enforcing the order, as well as an order ‘‘in the nature of mandamus’’

requiring that the defendants revoke the order. Although the trial court

questioned whether mandamus was the proper instrument for achieving the

plaintiff’s desired end, the parties have not pressed this point on appeal. In

any event, the precise nature of the remedy sought is not material to the

resolution of the present appeal.

the plaintiff’s initial, two count complaint, the trial court dismissed the entire

action when it granted the motion. At the December 20, 2010 hearing, the

court notified the parties that, because the issues of exhaustion and sovereign

immunity are subject matter jurisdictional, the court would proceed

as if the motion to dismiss covered the amended, four count complaint. In

its memorandum of decision, the court also made clear that its conclusion

that the plaintiff had failed to exhaust his administrative remedies and to

overcome the sovereign immunity defense applied to the amended complaint.

might have been more definitive, the memorandum of decision makes clear

that the court considered the defense to be meritorious. Moreover, both

parties have briefed and argued the issue on appeal. In any event, because

‘‘[t]he doctrine of sovereign immunity implicates subject matter jurisdiction’’;

(internal quotation marks omitted)

Works

this court;

(1996); and, accordingly, we must address it.

because the plaintiff had failed to exhaust his administrative remedies, the

plaintiff argues on appeal that pursuing remedies with the department would

have been futile because P.A. 10-179, § 129 (b) (1), makes the order irrevocable.

In their brief, the defendants reply that pursuing a remedy with the

department might nevertheless have been appropriate because the agency

could have developed a factual record for later use by a reviewing court.

At oral argument before this court, however, the defendants conceded that

exhaustion was not a proper basis for dismissing the plaintiff’s claims. We

agree. Because we conclude that the plaintiff’s claims are barred by the

doctrine of sovereign immunity, and, therefore, that the trial court lacked

subject matter jurisdiction, we need not analyze this issue further.

244 Conn. 296, 328, 709 A.2d 1089 (1998), indicated that, even if the plaintiff

succeeded in establishing that the defendants had acted illegally, the defendants

would remain immune from suit unless the injunctive relief sought by

the plaintiff

Statement from Markley:

“Our system of justice is the envy of the world, and rightly so, but that doesn’t mean they always rule correctly. Although the Supreme Court didn’t accept the Superior Court’s grounds for dismissal—failure to exhaust administrative remedies—they turned to another ground—sovereign immunity, the principle that the state cannot be sued without permission.