Superior Court Judge Henry S. Cohn dismissed state Sen.-elect Joseph Markley’s lawsuit against the Department of Public Utility Control earlier this week ruling that it lacked subject matter jurisdiction.
In his decision Cohn opined that Markley failed to prove he exhausted his administrative remedies before filing the lawsuit in New Britain Superior Court. Cohn also wondered that even if he had concluded Markley exhausted his administrative remedies whether the rules of sovereign immunity would apply to the case.
The state argued that it’s immune from Markley’s lawsuit and can’t be sued in this manner because it’s only doing what the state legislature asked by extending a portion of the competitive transmission assessment on electrical bills.
The state plans on taking that portion of what Markley calls a “sneaky tax” to pay off the close to $650 million in borrowing it did in the last budget. Just yesterday Gov. M. Jodi Rell wondered what was going on with the lawsuit, which is holding up the sale of those Economic Recovery Revenue Bonds by the state Treasurer’s office. It’s unclear if the decision will clear the way for the borrowing to occur.
In a phone interview Thursday Markley said he was disappointed and would be talking to his friends in the legal world to determine his next steps.
Markley, who isn’t a lawyer and filed the lawsuit himself, said he thought he argued quite eloquently the reasons he felt he had exhausted all of his administrative remedies with the DPUC.
“Similar decisions on the need to exhaust administrative rememdies have been overturned on appeal, and that is a step I will consider,” Markley said. ” In Aaron v. Conservation Commission (1979), the state supreme court ruled that ‘exhaustion of administrative remedies will not be required when the remedies available are futile or inadequate.’ To my mind, that is exactly the situation we face with the DPUC.”
Markley filed the lawsuit as a writ of mandamus against the DPUC claiming it had no taxing authority. He has been considering whether to file the lawsuit as a declaratory judgment instead.
In addition to arguing his case earlier this week Markley sent a letter to state Treasurer Denise Nappier asking her to refrain from issuing the bonds.
“I believe the tax as instituted by the legislature is not simply ill-advised but in fact illegal and unconstitutional,“ Markley said. “I hope your office will refrain from issuing the bonds until the court rules on my complaint.”
Nappier has said in the past that she will issue the bonds when the market conditions are ripe and her office is monitoring those conditions daily. Rell had initially feared the state legislature would add back some money to the approved amount of borrowing which amounts to more than $900 million. The state was able to lower the amount of money it would borrow to $650 million when state revenue projections increased.
“The treasurer’s office cites bond market volatility as a reason to rush ahead with these bonds,” Markley said. “I believe that volatility is a direct result of the staggering level of public debt. We in Connecticut owe more per capita than any state in the country. Further bonding to cover current expenses is a big mistake, which I will stop if I can.”
Markley said Thursday that sometime after the New Year how he will know which course of legal or administrative action he will pursue.