Connecticut Senator Faces Pushback in Toll Spat

HARTFORD, Conn. (CN) — Vying to dismiss a suit by his political opponent, Connecticut Governor Dannel P. Malloy told a judge that state Senator Joe Markley is trying to hamstring his executive action on electronic tolls.

This E-ZPass toll plaza is in New York. (Photo via ny.gov)

Markley, who last month won the Republican nomination for lieutenant governor, brought the suit pro se last month, seeking an injunction against a $10 million toll study that Malloy ordered the Transportation Department to conduct.

Noting that the General Assembly had already failed three times to pass similar legislation regarding toll studies, Markley, who is not an attorney, argued that Malloy overreached with his executive order.

“It’s not just a reckless waste of money now — it sets a precedent for future executive overreach,” Markley said when he filed the lawsuit. “Even by Dan Malloy’s standards, this is an arrogant abuse of power, coming at the expense of Connecticut’s citizens and laws.”

Having removed its toll booths in 1983 after a tractor trailer killed six people at a Stratford toll booth, Connecticut is the only state in New England without some form of electronic highway tolls.

Even though the special transportation fund that the state uses to improve roads has been suffering from a lack new revenue sources, the Legislature is divided on whether to put e-tolls in place. As vehicles become more fuel efficient or completely electric, the fund will continue to become more insolvent as each year goes by — an issue with which states all across the nation are grappling. And because Connecticut is a small state, interstate drivers can easily avoid filling their tanks at Connecticut prices, generally speaking.

The state attorney general’s office brought a motion on Friday to dismiss Markley’s case, saying the state senator “does not allege a single fact to demonstrate whether or how he personally has suffered a legally cognizable injury that differs from that of the public generally.”

“Indeed, the fact that the state may incur marginally higher debt service obligations in and of itself will have no direct or tangible impact on Plaintiff at all,” the motion continues.

Assistant Attorney General Micharl Sklod, who signed the 14-page filing, also says Markley failed to demonstrate that Malloy “acted in excess of his statutory or constitutional authority by issuing the Executive Order and seeking legislatively authorized bonding to pay for its implementation.”

Skold says the General Assembly did authorize the funding that the Bond Commission approved on July 25. The 10-member Bond Commission approved the funding for the study by a 6-3 vote with one abstention.

Attacking Markley on the basis of standing as well, Sklod says “it is not enough for plaintiff to allege that his tax dollars ‘contributed to the challenged project’ or that they were used ‘for an improper purpose.’”

“Rather, to have taxpayer standing plaintiff must demonstrate that he either incurred an identifiable tax increase, or that he personally suffered some other ‘great’ and ‘irreparable’ injury as a result of the challenged expenditure,” Skold wrote.

Sklod argued as well that Markley is not owed special consideration as a sitting state senator.

“He is not different and cannot establish standing on that basis,” the motion states. “Indeed, research does not disclose any case in which a Connecticut court has held that the concept of legislative standing actually exists under state law, much less afforded a legislator standing on that basis.”

Markley, who plans to retain an attorney soon, pushed back on the the issue of standing.

“If I don’t, I don’t know which taxpayer would,” Markley said Monday in a phone interview.

Sklod meanwhile said in the Friday motion that sovereign immunity also bars Markley’s suit, noting that “the Legislature expressly has empowered DOT to take the actions contemplated by the Executive Order, and also has authorized bonding to pay for them.”

Oral arguments on the motion to dismiss have been scheduled for 2 p.m., Oct. 22 at Hartford Superior Court.

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