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Conn. SC sides with utility board in case over fee

By Jessica M. Karmasek | May 18, 2011


HARTFORD, Conn. (Legal Newsline) - The Connecticut Supreme Court has upheld the ruling of a trial court dismissing a lawsuit against the state Department of Public Utility Control over an electric utility fee.

The Court, in an opinion that won't be officially filed until May 24, said plaintiff Joe Markley's claims are barred by sovereign immunity.

Markley, a ratepayer, filed the action following a financing order issued by the department and its chairman, Kevin DelGobbo. The order required that the state's two investor-owned electric power companies -- Connecticut Light and Power Company and United Illuminating Company -- continue to charge their rate-paying customers a fee that would otherwise have expired, with the proceeds going to the state's general fund.

Markley alleged that the financing order constituted an illegal tax on the distributor's customers, issued in excess of the defendants' statutory authority and in violation of the customers' constitutional rights.

A trial court dismissed his action against the department and DelGobbo, both of which were represented by assistant attorneys general Mark F. Kohler and Robert L. Marconi.

Markley appealed, claiming that the trial court improperly concluded it lacked subject matter jurisdiction over the action.

Chief Justice Chase T. Rogers wrote the Court's 15-page opinion.

The Court said there is no indication, and Markley does not allege, that the higher tax burden the order allegedly imposes on ratepayers reflects any animus toward the class on the part of the department or the Legislature.

Rather, the Court said, Markley simply argues that the charges arbitrarily apply to the distributor's customers but not to municipal ratepayers, and the order inequitably distributes the burden between the CLP and United customers.

"Those allegations are insufficient, as a matter of law, to establish a violation of the plaintiff's equal protection rights," the Court wrote.

"As discussed previously, it is also clear that the Legislature had a rational basis for structuring the bond program as it did, namely, to distribute broadly the burden of deficit reduction while ensuring that no ratepayers would be forced to pay more each month than the fee they had already been paying."

The question of whether to tie deficit reduction to a taxpayer's electricity purchases is a policy issue that rests with the Legislature and lies beyond the purview of the Court, it said.

"In the absence of a substantial claim that the defendants have exceeded their statutory authority, the action is barred by the doctrine of sovereign immunity, and, therefore, the trial court properly dismissed the action for lack of subject matter jurisdiction," the Court concluded.

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