HARTFORD, CT — Does a lone lawmaker who voted against funding that the executive branch used to study electronic tolls have standing? That was the question Superior Court Judge Thomas Moukawsher pondered Wednesday during a 56-minute hearing.
Assistant Attorney General Michael Skold argued that individual lawmakers have no special powers to bring a lawsuit challenging the actions of the executive branch.
“One single legislator, who has not claimed personal harm, does not have standing,” Skold said.
Moukawsher asked how many lawmakers would it take to authorize an action to challenge an executive branch decision.
Skold conceded that if it was the General Assembly as a whole voting to bring an action against the executive branch that it would be a much different argument. However, state Sen. Joe Markley, who sued Gov. Dannel P. Malloy over spending bond funds on an electronic toll study, brought the case pro se.
Markley was represented by two attorneys who are also lawmakers — Craig Fishbein and Doug Dubitsky — in court Wednesday.
Fishbein argued that there were bills introduced that would have prohibited the state expending any money on electronic tolls, but those bills only made it out of committee and died on the calendar.
“Is inaction a statement of the legislature?” Moukawsher asked. “Did he vote for the proposal?”
Markley voted against the bond package that authorized the funding Malloy then used to ask the Bond Commission to approve a toll study. The toll study was never spelled out as part of the bond authorization.
“So then how did anyone nullify the vote that he took?” Moukawsher asked. “Then the argument would have to be he nullified the vote of a bill that got out of committee.”
Fishbein said there never was a vote of the legislature regarding this matter. He said the governor made these decisions on his own.
“Essentially what happened here is an expansion of the executive branch,” Fishbein said. “The executive branch took a power that normally is done by the legislative branch and did it on its own.”
He said transportation can be dealt with by executive order when there’s a transportation emergency, but there was no emergency listed in the executive order that accompanied the funding.
“The real problem is the usurpation of power,” Fishbein said.
Moukawsher said the fact that legislation seeking to defeat any toll proposals died could be interpreted many different ways.
“The court could say that the defeat of a bill that says don’t do anything about this toll stuff could be argued by some that it’s okay to do something about this toll stuff,” Moukawsher said. “Others might argue that inaction shouldn’t be taken to be anything other than the fact that the crush of business prevented us from getting to it . . . Maybe the court should say: ‘how do we know what to make of legislative inaction?’”
Markley’s decision not to vote for the bond authorization used to help fund the toll study may also present a problem.
“He doesn’t have anything he voted for that he can argue the governor frustrated, does he?” Moukawsher said.
“No,” Fishbein conceded.
Markley, a fiscal conservative who is running for lieutenant governor, joked that maybe it would have been a good idea to vote for the bond package. At the same time he speculated that both a no vote and a yes vote should hold the same weight.
Skold asked if the judge would consider arguments over sovereign immunity, which bars complaints against state government under most circumstances. Moukawsher declined to listen to sovereign immunity claims Wednesday.
“I don’t like the perpetual arguments that the state puts forth in virtually every case that you get in front of it that nobody can sue about anything,” Moukawsher said. “As a general proposition I think it overreaches.”
Moukawsher didn’t rule on whether Markley had standing Wednesday. Rather he listened to the arguments and said he would make a decision soon.