Friday, June 24, 2011

The Roger Sherman Suit, Oral Arguments And Decision

Superior Court judge James Graham today dismissed a lawsuit brought by the Roger Sherman Liberty Center that challenged the state budget on Constitutional grounds. The state Constitution requires a balanced budget. The center argued since expenditures exceeded revenue outlays when the budget was adopted by the general assembly, Governor Malloy’s Plan A budget was not in balance and therefore unconstitutional.
It was the kind of judicial decision that attempts to square a circle. Only in a court of law is such an exercise not doomed to fail.

There is no one in the state of Connecticut who can with any degree of certitude assert that the state budget is in balance – no one. When Associate Attorney General Perry Zinn-Rowthorn insisted during oral argument that the budget was in balance at its passage, he was simply doing his job.

The budget is not in balance now; it was not in balance when the liberty center brought a suit calling upon the court to declare that the budget was not in balance and therefore unconstitutional; and it is doubtful, now that state unions have rejected Plan A, an out of balance budget scheme that rested upon concessions from unions, that the budget will be balanced for some time to come.

Because the budget was not in balance when adopted by the legislature, the budget is inescapably unconstitutional. The test of budget constitutionality – according to the constitution, but apparently not according to Mr. Graham – is that expenditures cannot exceed revenue. Plan A, now kaput, was short in revenue when the General Assembly adopted the out of balance budget, at the same time relieving the legislature from returning to vote to accept the budget after Plan A had been ratified by the unions – which, as we now know, did not happen.

During oral argument, the judge expressed some reservations at deciding the issue because the General Assembly had not statutorily defined what an expenditure” is. In the absence of a legislative definition, the judge asked, how was the he to decide that a budget was not in balance?

During oral argument, the associate attorney general, depending upon which of the plaintiff’s arguments he wished to dispute, acknowledged both that the budget was and was not in balance.

The judge also queried both lawyers concerning the definition of a “budget.” Is a budget the plan of expenditures adopted by the legislature, or is it a process? Mr. Zinn-Rowthorn argued that even if a budget were not in balance when adopted by a legislature, the court should refrain from issuing a decision on the putative unconstitutionality of a budget if, at some future unspecified date, a process is in place that allows the legislature to re-balance the budget.

The lawyer for the liberty center, Martha Dean, argued that the question of imbalance already had been effectively decided, since Mr. Zinn-Rowthorn had asserted as much in his brief. That issue having been settled, it was incumbent upon the judge to rule that the budget was unconstitutional. Not to do so would be to permit this and any other unconstitutional action by either the governor or the legislature, thereby depriving the citizens of the state of their constitutional protections.

The decision perhaps will surprise only those in the state who have not yet concluded that the judiciary has become a pawn of the Democratic Party, the Attorney General’s office and powerful legislators in the General Assembly who control their salaries.


Leslie Wolfgang said...

You are right on Don. Attorneys are taught in law school to view the rule of law as an obstacle.

Don Pesci said...
This comment has been removed by the author.
Don Pesci said...

That’s true. There are no bounds in the new legal firmament, constitutional or otherwise, that cannot be overcome. In this case, the decision may have been driven by a combination of fear, a disinclination to disturb the universe and a sense of gratitude, all human drivers. I suspect the judge, otherwise a fine servant of the law, entered the case looking for the nearest exit. He found it. That budget is not in balance and to the extent that the constitution requires a balanced budget, it is clearly unconstitutional. When courage was wanting, courage took a hike. What else is new?

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