Can AG Sue His 'Client'?

April 29, 2002
Reprinted with permission by the Connecticut Law Tribune, April 29, 2002, by Thomas Scheffey

Supreme Court may set new boundaries

In an extraordinary move, Attorney General Richard Blumenthal has sued an agency his office represents, the Connecticut Siting Council, in the Superior, Appellate and Supreme Courts, attempting to stay installation of a massive underwater cable to feed electric power to Long Island.

This is prompting a separate power question. Namely, where does the AG get his "juice"?

Lawyers for Cross Sound Cable Co., LLC, openly question the Attorney General’s power to sue the state Siting Council, which endorses the project and is represented in court by members of Blumenthal’s office.

Cross Sound’s lead appellate lawyer Jeffrey R. Babbin, of New Haven’s Wiggin & Dana, has fended off all Blumenthal’s attempts to halt the project on the merits. More fundamentally, Cross Sound questions Blumenthal’s authority to be a plaintiff against the Siting Council in the first place.

"It’s interesting to consider whether an attorney general may take his own appeals from state agency decisions," said Babbin, who contends the legislature gives the AG no such power.

Blumenthal, as the plaintiff, first appealed the Siting Council’s January decision on March 21, seeking a stay from New Britain Superior Court Judge Carl J. Schuman. Babbin, in briefs for Cross-Sound, called the appeal weak, ill-conceived, and completely beyond Blumenthal’s power.

"The AG has no authority to bring this appeal," Cross-Sound contended in its March 28 brief in opposition to Blumenthal’s application for a stay. The Attorney General’s power is created and defined by the legislature in C.G.S. Sec. 3-125, which makes him the state agencies’ lawyer. This does not include appealing a decision by an agency the AG’s office represents, Babbin argued, in a brief he co-authored with Alan G. Schwartz and Bethany L. Appleby.

Advocacy Limits

Two reported cases uphold the AG’s office representing agencies on both sides of a dispute, they note. But neither case had the AG as a party. The 1978 state Supreme Court case of Commission on Special Revenue v. Freedom of Information Commission stated that "…where he or she is not an actual party, the Attorney General may represent opposing State agencies in a dispute."

Blumenthal noted in an interview that Schuman did not rule the AG lacked standing. "The courts have properly rejected efforts to raise spurious claims that we cannot represent different sides in the same case. We do it rarely," Blumenthal said, "when there are vital public interests at stake. The court properly rejected the unfounded claims by Cross Sound in this case."

Schuman’s April 9 decision rejected Blumenthal’s and New Haven’s bids for a stay due to the slim chance they would win on appeal. He was unpersuaded by arguments that the Siting Council should have considered the cumulative environmental effects of the 24-mile cable installation and all other pending Sound projects of which it knows.

Babbin argued that if the council combined every potential project "it would end up having five hearings in one, and it would be never-ending, and circular and unworkable." Schuman rejected interpretation, Babbin noted, adding. "It’s not the law."