Sen. Joe Markley, R-Southington, may have lost his Supreme Court case alleging the Department of Public Utility Control had no authority to continue what amounted to a tax on consumers’ electricity bills, but he isn’t disappointed he filed the lawsuit.
“I think we put the legislature on notice that when they do things that are legally suspect that they can be held responsible,” Markley said Thursday.
Markley argued the DPUC had no authority to extend the competitive transmission assessment—a fee Connecticut Light & Power and United Illuminating levied on consumers for 12 years in order to pay them back for getting out of the generation business—in order to pay off what was initially $1 billion in Economic Recovery Notes to help balance the 2011 state budget.
The lawsuit delayed the state Treasurer from going out to market for the Economic Recovery Notes. In the meantime, the state’s fiscal picture has improved lowering the amount of borrowing to $432.5 million, according to the April consensus revenue estimates. The Senate passed legislation Wednesday that would further lower the amount of borrowing.
“In that way I feel like we saved the state 10 years of borrowing,” Markley said. “That was an unintended good consequence of having brought the suit.”
He said he doesn’t believe either the lower court decision or the Supreme Court decision ever got to the issues underlying case. In part, this may be because Markley, who is not an attorney, initially filed the case as a Pro Se litigant. The new decision mentions Markley’s arguments changed several times between the trial court and the Supreme Court, which concluded the claim was not “substantial.”
“They never got to the underlying questions of the equity of the tax and the appropriateness of the agency collecting it,” Markley said.
The Supreme Court agreed with Markley that he had exhausted his administrative remedies, which is the main reason a lower court judge dismissed the lawsuit, but it ruled on the issue of sovereign immunity. After oral argument two months ago, Markley was hopeful the justices would allow the merits of the case to be heard.
“I think we had a good case, but I never got my day in court in that sense,” Markley said.
And even though the lawsuit was not successful, Markley said he thinks it brought a lot of attention to something very few people knew about.
“They did it in the hopes that people wouldn’t notice it,” Markley said of the competitive transmission assessment that he dubbed the “sneaky tax.”
“I think they will think long and hard before they do something like that again,” Markley said of the legislature, of which he is now a member. “Even though it didn’t work this time, it certainly made them squirm.”