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Connecticut Attorney General Richard Blumenthal boldly sought a ruling from the state supreme court to establish once and for all that his office has broad common-law power to prosecute civil claims on behalf of the state. Instead he got defeat — and a history lesson. The case of Blumenthal v. Robin Barnes curbs his power, particularly in the rare cases where the attorney general’s office would sue in its own right, and not under a specific statute or as legal counsel for a state agency. The unanimous decision, authored by Justice Peter T. Zarella and officially released Tuesday, would potentially impact some of Blumenthal’s highest profile cases, such as the attorney general’s opposition to the Connecticut Siting Council’s authorization of the controversial Cross Sound Cable project. Cross Sound contends he can’t sue the Siting Council, which by statute he’s bound to defend. In Barnes, Blumenthal sued a University of Connecticut law professor who launched a New Haven charter school in 1997, the now-bankrupt Village Academy Inc. Hartford Superior Court Judge Carl J. Schuman ruled at trial that the attorney general lacks common-law power to sue Barnes for self-dealing and breach of her fiduciary duties. Schuman ruled the attorney general could pursue the misuse of charitable funds paid to the academy — a minor sum — but Blumenthal “abandoned his claim insofar as it was based on his statutory authority,” Zarella wrote. Instead he set up a kind of test case for appeal, when Schuman ruled he had no statutory authority to sue Barnes. Hartford attorney Martha Dean, the Republican nominee for attorney general, praised the supreme court decision for “reining in” Blumenthal, whom she criticized for burdening the judicial system with “tens of thousands more lawsuits” than the 8,000 per year it filed in the 1980s under former Attorney General Joseph Lieberman. THEORY FAILS On appeal, the attorney general’s office relied on a theory that was more lore than law. When the office of attorney general was created by statute 105 years ago, Blumenthal argued, civil law powers that belonged to the state’s attorneys in the various counties were transferred to the attorney general. However, neither statutes nor legislative history support that notion, Zarella concluded. William Bloss, of New Haven, Conn.’s Jacobs, Grudberg, Belt & Dow, represented Barnes. He traced the roots of the attorney general’s power in the basement of the state library, researching century-old copies of The Hartford Daily Courant. Bloss said the research task was “delightful” and its results were surprisingly clear. “If there was supposed to be this huge change in the structure of the state government, including taking away powers of the state’s attorneys they’d had for 180 years, you might have expected to see that mentioned somewhere in the debate,” Bloss said. Historically, the state’s attorneys powers are rooted in old English common law as it was brought to the colonies. In 1704, the “Atturney for the Queen” was empowered to pursue civil and criminal remedies “to suppress vice and imorallitie.” Similarly, the state’s attorneys in colonial Connecticut counties were empowered to prosecute criminal matters and a variety of civil actions. Meanwhile, the various statewide agencies hired private counsel. By the end of the 1800s, the legislature was alarmed at the cost of attorney fees. It created the office of attorney general in 1897 in part to save on counsel costs. Blumenthal said his office rarely invokes common law, and when it does, it’s “surplusage,” merely supplementing statutory claims. In actual practice, the vast majority of the attorney general’s 23,000 annual lawsuits are brought under statute, on behalf of a state agency, most frequently in child support and child protection matters, he noted. In the past year, he said, “we collected $353 million for the general fund and individual consumers, in the office overall. That is including the tobacco money, which was $139 million. That’s all pursuant to statute. I would challenge you to name a case where we are invoking common law, rather than statute. In terms of our powers, common law has never really played a role in modern history.” Bloss counters that the attorney general’s office, in the Barnes appeal, argued there would be serious consequences if it did not prevail. Now, he said, defendants in cases brought by the attorney general should check his authority.

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