Attorney General: History of the Office


History of Connecticut
Attorney General's Office


While Connecticut's system of self-government has a long history-- the State was settled in 1633, the Superior Court dates from 1667, and our tripartite system of Government from 1818 -- the Office of the Attorney General was created relatively recently, in 1897. Endnote 1.
The statute establishing the office declared:

There shall be an attorney general chosen by ballot in the same manner as other state officers, on the Tuesday after the first Monday of November, 1898, and quadrennially thereafter, to hold this office for a term of four years... The attorney general shall be an elector of this State, and an attorney-in-fact of at least ten years active practice at the bar of this Court.

The statute set as the office's mission the general supervision over all legal matters in which the State is an interested party, except criminal matters, over which "the state's attorneys have direction." Endnote 2. It was only in 1970 that the statutory reference to the Attorney General was incorporated into the State Constitution. Amendment I, Connecticut Constitution of 1965. H.J.R. No. 95, 1 (1969).

For at least 25 years prior to 1897, a steady succession of governors and other public officials had emphasized the need for an attorney general in Connecticut to handle civil litigation for the State. Endnote 3. At the founding of Connecticut, each county had a "king's attorney," who became, after the revolution, a "state's attorney" to handle criminal prosecution for the state. These men were quite prominent and highly respected criminal prosecutors. Appointed by the judges, some served twenty years or more; Hartford State's Attorney William Hamersley, who served from 1868 to 1888, later went on to become Chief Justice of the Connecticut Supreme Court. Hugh Alcorn, the Hartford State's Attorney from 1908 to 1942, came to symbolize Connecticut's tough, yet fair, approach to criminal justice.

Before 1897 the state's attorney did handle some civil matters of a more controversial nature, such as quo warranto, mandamus, or public utility disputes. Endnote 4. However, the routine legal issues facing the State and its agencies were resolved in a variety of ways -- none quite adequate. Some agencies resolved matters of legal advice according to custom or their own judgment. Others retained private attorneys. Endnote 5. In an effort to eliminate political considerations in the selection of private counsel, a rule developed that whenever the Secretary of State was an attorney, he would try to resolve the matter or render advice. When the Secretary was not an attorney, he would still determine what cases went to which private litigators. But the high fees charged by the attorneys and the unavoidably political nature of the assignment process gradually convinced the legislature to establish the Office of the Attorney General -- to provide an authorized public figure advising on the law in an official manner.

Since the Secretary of the State exercised many of the attorney general's functions before creation of the office, it comes as no surprise that the first Attorney General, Charles Phelps, had been Secretary of the State from 1897 to 1899. He was 46 years old when he ran for Attorney General in the election of 1898, and he took office in January 1899. A native of Rockville, Phelps maintained a practice there, also serving as county coroner and prosecuting attorney. Subsequent to being Attorney General, he was State's Attorney for Tolland County from 1904 to 1915. He died in 1940 at age 88. Phelps also served as a war correspondent for the Hartford Courant, which resulted in such dispatches as "Finds Europe Aflame With War," published in 1916.

As Attorney General, Phelps was provided space at the State Capitol, and a library consisting of state and federal statutes, constitutional treatises, hornbooks, reports of attorneys general in other states, and one volume entitled "Extraordinary Relief."

Phelps, who received a salary of $4,000, stated in his first annual report in 1899 that "the office is open during the week, but the attorney general is in attendance only on Tuesdays, Wednesdays, and Thursdays, reserving Fridays for appointments in court incident to matters upon short calendar." He had no deputy or assistants, only a secretary. Some departments, like the tax department, had their own legal staff and private attorneys were still frequently employed.

The attorney general continued to be a sole practitioner until 1927. Two years earlier, in the 1925 annual report, Frank Healy, a two-term attorney general from Windsor Locks, urged the legislature to authorize the appointment of assistants:

While all of my time is devoted to the duties of this office, I cannot help the feeling that this department in point of service does not begin to measure up to the standard of efficiency which obtains in the public service of the state. In an effort to remedy this condition I asked the last General Assembly for an appropriation sufficient to employ assistance in this office so as to expedite its business, but my request was refused. Former Attorneys General have called to the attention of the General Assembly the need of extra assistance in this department with like results. As this department is practically the only one in the state without a deputy, I recommend the enactment of a law providing for such an appointment with absolute authority to act for and in behalf of the state in the absence of disability of the Attorney General.

In 1927 the legislature saw the wisdom of this recommendation and authorized a deputy, as well as "such other assistants as shall deem necessary subject to the approval of the Board of Finance and Control." An effort was made to decrease legal staff at the agencies as well.

This legislative act slowly led to the establishment of the office as we know it today. In 1934 there were four assistants, and three clericals; in 1935, six assistants; in 1942, ten assistants and a law clerk. In 1950 there were eleven assistants and nine staff members. The largest growth came between 1960 and 1970, when the office grew dramatically from 23 full-time employees to 92 full-time employees. By 1974 the office consisted of 135 employees of which 72 were attorneys; in 1981, 197 employees, and 1982, 204, of which 123 were attorneys. The office continued to be located on the second or third floor of the Capitol until 1964, when it moved to 30 Trinity Street.

The salary of the attorney general was usually quite minimal. As indicated, Phelps received $4,000, in 1920 Healy received $6,000, in 1935 the post paid $8,400, in 1965 the legislature raised the compensation from $12,500 to $20,000, in 1972 to $30,000. When the legislature made the attorney general a full-time position in 1982, the salary was increased to $50,000. Historically one inducement to the position seemed to be its role in launching a subsequent career with the judiciary: one third of the incumbents became judges.

The volume of work of the office has, except for the first few years, been very substantial. The statute creating the office stipulated that the attorney general represented the state officers and heads of all boards and commissions in all suits and civil proceedings. He was to appear before the general assembly when legislation was pending concerning the state treasurer. State officers and boards were to rely on the Attorney General for legal services -- with the proviso that only a branch of the general assembly could authorize the Attorney General to give a formal opinion to the assembly. The statute, from the first, contained a traditional power of attorneys general -- the protection of charitable trusts from improper invasion or misuse. Endnote 6.

The work of the first attorney general consisted to a great degree in statutory interpretation. He was swamped with what he called "perplexing questions" arising from special legislation, and was forced to explain "the reasons which justify special legislation in one case and not in another." During the legislative session he attended numerous committee meetings to protect the state's fiscal interests.

Of the twenty court cases Phelps had in the first two years as Attorney General, fifteen were mortgage foreclosures. A series of mortgage foreclosures "in the western states," mostly Ohio, were handled by probate attorneys in the locality on a fee basis. (The fees ranged from $20 paid to one W.H. Phipps of Paulding, Ohio to $400 paid to Cable & Parmenter of Lima, Ohio.)

With the growth of state government, the Office diversified greatly. In 1934, the Office had important cases involving highway suits and appeals. One case that received attention was a water diversion suit between Connecticut and Massachusetts. Another concerned a series of cases regarding the structure of the health licensing boards. Endnote 7. Liquor Control Commission cases were also common. Endnote 8.

By 1950 the Office had taken over all workers compensation claims of state employees -- some 3,500 active cases. It settled a large case involving gasoline tax retained by distributors for $91,000. The Attorney General appeared before the United States Congressional Ways and Means Committee of the U.S. House of Representatives to testify on an inter-governmental matter.

After World War II, two new issues came to the attention of the Attorney General: The first, labor and employment regulation, Endnote 9. the second, the condemnation of land for highway purposes, as the federal government began to fund these roadway projects. Endnote 10.

The 1955 report of the Attorney General mentions an important decision on welfare collections -- the Connecticut Supreme Court had ruled support orders nondischargeable. Endnote 11. During the year 336 cases were decided, including one in federal district court, 12 in the Connecticut Supreme Court, 153 in superior court, 161 in common pleas court, two in municipal court and seven in probate court. One of the earliest cases argued by the Attorney General's Office in the United States Supreme Court was Poe v. Ulman. Endnote 12. The Court refused to decide the constitutionality of the State law banning the sale of contraceptives.

By 1964, with 2,200 Attorney General cases pending, the federal court work of the office had greatly increased. The office was heavily involved in litigation over the reapportionment of the State legislature based on the 1960 census. By 1970, the Office had become active in providing representation of and assistance to the Connecticut Human Rights and Opportunities Commission.

In 1974 the attorney general noted that 7,567 cases were pending, including 608 in federal court. The office had been asked several times by the federal court to prepare an amicus brief on points of Connecticut law under challenge. Endnote 13. In annual reports during the 1970's, mention is made of the vast amount of money collected for the state and the savings achieved in settling claims against various departments.

In the 1980s the Office's development continued. The Attorney General took significant steps to protect consumers from fraud, residents from environmental hazards and workers from industrial injury and disease. Through the Attorney General's Office, the State became increasingly involved in antitrust protection. The tough issues of prisoner's and the disabled rights have been tackled. As the federal government retreated from its historic role as the chief protector of citizens, the Attorney General's Office took on extra work, including suits against the United States itself over unsafe trucks, OSHA regulations and the cable television industry. Endnote 14. The Office has also continued to defend numerous state officials sued for their official actions. Endnote 15.

Beginning in 1983, the office embarked on a program of public outreach and education. A series of columns and public service announcements called "Connecticut Law in Plain Language" explains a variety of state citizen rights and responsibilities in easy-to-understand terms. Brochures have been organized to explain the statutes of environmental and antitrust laws to businesses, citizens and municipalities. The office has also established liaison with a variety of citizen groups to keep them informed of the progress of litigation affecting their interests, and to assist them in advocating legislative changes.

Also in 1983, the office became more active in developing and advancing a legislative package before the General Assembly. Headed up by the new position of Counsel to the Attorney General, a legislative team has enjoyed success in helping pass new laws involving missing children, child support, ticket scalping, student loans, limiting youth access to tobacco products, environmental enforcement, consumer protection, child protection and water pollution.

From the days of a sole practitioner the Attorney General's Office has come a long way. During the fiscal year 1995-96, $27,000,000 was collected for the state treasury as a result of the office's litigation. Over 14,000 written and oral opinions were delivered, and 11,000 court cases were handled.

With all this growth, certain things have not changed. Personnel issues have been constant. William Hadden, Attorney General from 1945 to 1951, and formerly Lieutenant Governor, strongly urged in 1946 that the legislature raise the salaries for assistants, so that they would not depart for private practice. In an attack on the merit system, Hadden lamented that assistants were hired through competitive exams.

For me to appoint an assistant attorney general simply because he finished within the first three in the Merit System examination when the need at the office at that time is for a capable trial lawyer would be comparable to employing a general medical practitioner to perform a delicate brain operation.

Civil service hiring has been somewhat revised since 1983, allowing for continuing recruitment. Reorganizations of staff to obtain better efficiency have been undertaken in the 1930s, the 1950s, the 1980s and the 1990s.

Perhaps the most consistent theme of the various reports issued by the office has been the remarkable expansion of the office since its founding. 1925: "The constant increase in the state's activities in new lines of endeavor, and the great expansion of its numerous departments has added to the manifold duties of this department." 1934: "There has been an almost unbelievable growth and expansion of the activities of the Office of the Attorney General since its inception in 1899." 1960: "The office is gradually expanding. The additional legal needs of the various departments are gradually being met. We do not have sufficient quarters or space within which to house and adequately staffed office. It is hoped that with the future occupancy of new state buildings this problem will soon be solved." 1970: "The reason for the compulsory expansion is a continued increase in volume of legal work handled by the office."

The Office of the Attorney General began as a legal innovation and tool of reform for Connecticut's system of state government. As the legal demands of state agencies grew and as the law became more complex, the office expanded its staff and restructured its internal organization in an effort to keep pace with the changes in law and government.

By the 1980s, when the Office ranked as one of the largest law firms in the State, it became clear that a part-time Attorney General simply could not manage the crush of important legal issues facing the State. By making the Attorney General's post full-time, the legislature effected perhaps the most significant reform in the history of the Office.

This was soon followed in 1983 with the sweeping reforms proposed by the Blue Ribbon Commission. The reforms are set up to make the Attorney General's Office more equipped than ever to handle the diverse legal challenges facing Connecticut's state government.

With the turn of the decade came an overall expansion of the office of the Attorney General. By the fiscal year 1995-1996 the average number of full time employees was 362. During the 1995-1996 fiscal year, the Attorney General's Office generated more than four dollars for the State's General Fund for every one dollar it expended for its operations. In addition, the Office recovered more than $3 million in revenue for special state funds and as restitution for consumers. The total revenue generated for the State's General Fund that year was $73, 194,019.

The Attorney General also participates in the legislative process, maintains an active communication with citizens and investigates, in conjunction with the State Auditors, Whistleblower complaints. The overall work completed by the Attorney General's Office in fiscal year 1995-1996 was summarized as follows:

Court cases completed -- 21,800
Court cases pending -- 25,964
Legal documents examined -- 8,559
Administrative proceedings -- 13,115
Appeals completed -- 139
Appeals pending -- 198
Formal opinions rendered -- 20
Endnote 16.
 

Endnotes


Endnote 1

Chapter 191 (1897). Analogously, while the Attorney General of the United States and the United States Attorneys in each Federal Judicial District date from 1789, the Department of Justice was created in 1870 in an effort to settle claims arising from the Civil War. See Olson, "Challenges to the Gatekeeper: the debate over federal litigating authority," 68 Judicature 70 (1984. In the States, Attorneys General have an early history; 34 states created the office at statehood.

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Endnote 2

Virtually identical language may be found in Conn. Gen. Stat. 3-125 (Rev. 1985). For the first six months of the office, the Attorney General was to "advise and assist the State's attorneys if they so requested." This authority was repealed in June, 1899. In 1984 the office received legislative permission to conduct prosecution of "regulatory" crime. P.A. 84-406 (1984). The attorney general also had the interesting duty to appear for the State whenever the legislature considered granting a divorce. Conn Pub. Acts. Ch. 20 1 (1899).

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Endnote 3

A review of the history of the office may be found in the 1934 State Register and Manual, written by then Attorney General Warren Burrows.

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Endnote 4

See, e.g. New Haven and Northampton Co. v. State, 44 Conn. 376 (1877) (State's Attorney Hamersley represented the State in a mandamus action.)

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Endnote 5

See, e.g. State v. Phoenix Bank, 34 Conn. 205 (1867) (a case involving the State Treasurer's Office; C. Chapman and Hubbard appeared); State v. New York, New Haven & Hartford R.R. Co., 71 Conn. 43 (1898) (mandamus, William H. Ely appeared.)

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Endnote 6

In one interesting case, the Attorney General became involved in the doctrine of approximation where the daughter of the owner of the Hartford Times left her estate for the creation of drinking fountains on Main Street for horses. See Seymour v. Attorney General, 124 Conn. 491 (1938).

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Endnote 7

Licensing Board cases were frequent during this period. See Slabotsky v. State Department of Health, 108 Conn. 88 (1928); Mower v. State Department of Health, 108 Conn. 65 (1928); Brein v. Conn. Electric Examining Board, 103 Conn. 65 (1925). The Hartford State's Attorney held a Grand Jury in 1925 on medical licenses and referred cases to civil authorities.

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Endnote 8

See e.g., Guillara v. Liquor Control Commission, 121 Conn. 441 (1936); Bonardelli v. Liquor Control Commission, 127 Conn. 708 (1940); Divirgilio v. Liquor Control Commission, 134 Conn. 143 (1947).

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Endnote 9

See e.g., Arnold College v. Dananher, 131 Conn. 503 (1945); Adm'r Unemployment Compensation Act v. Conon, 141 Conn. 236 (1955); Imperial Laundry, Inc. v. State Board of Labor Relations, 142 Conn. 457 (1955).

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Endnote 10

Jack Rubin, now retired, was active in the defense of these cases. See South Meadows Realty Corp v. State, 144 Conn. 289 (1957). Some of the other Assistant Attorneys General in the 1940-1950 period were Harry Brooks (medical cases), Harry Silverstone (labor), Frank Flood (tax), Louis Weinstein (appellate) and Joseph Hoffenberg (opinions).

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Endnote 11

Connecticut v. Murxyn, 142 Conn. 329 (1955).

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Endnote 12

327 U.S. 497 (1961). (Ray Cannon, AAG). See also , 381 U.S. 479 (1965). The earlier cases were State v. Travelers Ins. Co., 185 U.S. 364 (1902) which Phelps argued, Spector Motor Service v. O'Connor, 340 U.S. 602 (1951) and Spector Motor Service Inc. v. McLaughlin, 323 U.S. 101 (1944).

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Endnote 13

One of the earliest cases to solicit amici curiae briefs from other States was Sullivan v. United States, 359 U.S. 169 (1969) (F. Michael Ahern, AAG).

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Endnote 14

United States v. Connecticut, 566 F.Supp. 571 (D.Conn.1983) (tandem Trucks); United Steelworks v. Aucher, Dkt. No. 83-3554, (3rd Cir. decision issued May 29, 1985) (validity of OSHA regulations which have recently been amended); City of New York v. Federal Communications Commission, Dkt. #85-1274) (D.C.Cir. 1985) (challenging Cable television monopoly.)

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Endnote 15

See e.g. Horton v. Meskill, 172 Conn. 615 (1977) (allocation of State funds for education.) Pellegrino v. O'Neill, 193 Conn. 670 (1984) (Funding of judicial branch); Connecticut v. Teal, 457 U.S. 440 (1982) (Personnel rule on promotions and Title VII.)

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Endnote 16

State of Connecticut: Digest of Administrative Reports to the Governor. Volume L. (1995-1996).

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