Sen. Joseph Markley, R-Southington, filed his Supreme Court brief Monday in his lawsuit challenging the state’s decision to apply a portion of consumers’ electric bills to pay back $646.6 million in Economic Recovery Revenue Bonds to help balance last years budget.
A lower court judge dismissed the lawsuit claiming Markley didn’t exhaust his administrative remedies before filing a Writ of Mandamus in New Britain Superior Court last October.
In his decision Judge Henry Cohn opined that Markley failed to prove he exhausted his administrative remedies. 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.
Markley’s Supreme Court complaint co-authored by Doug Dubitsky and Peter Bowman, two attorney’s helping Markley who himself is not an attorney, claim the Department of Public Utility Control has not ability to take the competitive transmission assessment, which was set to expire last year and use it to pay back the borrowing.
The assessment was created more than a dozen years ago to help big utility companies like Connecticut Light and Power and United Illuminating offset the cost of transitioning to a deregulated utility market.
Dubitsky and Bowman argue it was impossible for Markley to exhaust his administrative remedies because there was no ability for him to do so in a timely manner.
On the steps of the Supreme Court Monday Markley again reiterated his concern that the DPUC has no taxing authority under the law. He also said certain Connecticut residents are unfairly burdened by the extension of what is essentially a tax because it does not apply to residents that receive electricity from municipal generators.
The towns exempt are Wallingford, Norwich, Bozrah, Groton, Norwalk and Lebanon.
“This tax is unfair for two reasons: It is levied by a state agency, which doesn’t have the authority to do so; and there are six towns that would be exempt from paying the tax,” said Markley. “As a result, not all Connecticut citizens are being hit with the extended utility charges to help shore up the state’s budget.”
Asked if it was exciting to be a rare pro se litigant in front of the Supreme Court and Markley replied: “The older I get the less vulnerable I get to sheer excitement.”
Markley said it’s still unclear whether he or one of his attorney friends will argue the case on March 23 in front of the justices.
The lawsuit has held up the sale of the bonds. A spokeswoman for Treasurer Denise Nappier’s office has said it’s likely they will go for sale of the bonds sometime in May.