AGs Hopefuls Split On Mission

Option #1: In tackling workers’ rights or underfunded schools, the ​“people’s lawyer” needs to offer a disinterested opinion recognizing different sides.

Option #2: In tackling workers’ rights or underfunded schools, the ​“people’s lawyer” needs to find a way to take a stand for social justice.

Connecticut Attorney General George Jepsen picked the first of those two options this past year when he was called to weigh in on two crucial issues in state government.

Now two of the people looking to replace Jepsen when he retires at the end of 2018 are offering two views on which path he should have taken — and more broadly, what role the attorney general, the top lawyer who represents the people of Connecticut, should play.

Those different visions emerged in interviews on WNHH FM’s ​“Dateline New Haven” program with Clare Kindall, who last week announced her candidacy for the Democratic nomination in this year’s attorney general race; and with Mike D’Agostino, who has formed an exploratory committee to consider a similar run.

Both Democrats said they support labor’s rights to collective bargaining. Both said they want to see the state fund public schools more equitably. Both said they are seeking higher office as part of the wave of Democrats opposed to the policies of President Trump and the national Republican Party. D’Agostino has been supported by the Hamden Progressive Action Network, a ​“resistance” group spawned by Trump’s election. Kindall participated in the Women’s March the weekend of Trump’s inauguration and said she’s answering the call for women to seek public office. (“I could not reasonably ask the younger generation, ​‘Step up,’ when the most qualified woman with experience in elected office did not step up and say, ​‘I can run for this. I would be the best attorney general.’”)

And both D’Agostino and Kindall said they want to build on Jepsen’s office success in filing civil lawsuits, often in conjunction with attorneys general of other states, to combat predatory finance, consumer fraud, assaults on labor rights, corporate malfeasance, and efforts to defund ​“sanctuary cities.” (In Connecticut, the attorney general heads a 200-person office that handles civil, not cirminal, matters; the state’s attorney’s office prosecutes crimes.)

But when it comes to another important part of the attorney general’s job — issuing advisory opinions and representing state government in court — the two diverged.

D’Agostino, a Hamden state representative, criticized Jepsen’s office for appealing state Judge Thomas Moukawsher’s ruling that Connecticut violates the state Constitution in the way it pays for public education, by underfunding poorer districts to the benefit of wealthier districts without any coherent rationale. The state Supreme Court is expected to rule on the appeal in coming months. (Click here for a previous interview with Jepsen about why he decided to file the appeal.)

D’Agostino also criticized Jepsen for offering a nuanced opinion this past session when legislators were voting on whether to ratify a concessions package with state labor unions. Republicans at the time sought to overturn part of the agreement; Democrats argued that the legislature couldn’t legally do that. Jepsen issued a ruling largely supporting the Democratic position but noting that under certain circumstances the legislators might have the legal right to change elements of a collectively bargained contract. The State Senate’s leading Republican used that part of the opinion to press his party’s case. In the end, the Democrats prevailed, and the concessions deal was ratified.

In criticizing Jepsen’s office, D’Agostino was by extension distinguishing himself from Kindall as well: She has worked as an assistant attorney general for the past 20 years. She argued in the interview that the attorney general has many avenues for fighting for people’s rights, but has a legal obligation to play a more neutral role in issuing advisory opinions and representing state government in court. She was unapologetic in her defense of Jepsen’s tenure, saying she seeks to build on his record, not diverge from it.

Who’s right? Democratic voters will decide that in a party primary, in which numerous attorney-politicians are currently mounting campaigns to compete. General election voters will decide in November.

In the meantime, you can weigh the question by hearing how Kindall and D’Agostino argued their points; following are edited transcripts of the portions of the WNHH interviews with Kindall and D’Agostino dealing with collective bargaining rights and with the school-funding lawsuit.

D’Agostino On Union Rights

D’Agostino: What you saw from a number of Republicans in the state legislature was an attempt to turn this state into Wisconsin. To vitiate the right of employees to collectively bargain and to impose instead conditions of employment, wage, hour, retirement by state statute rather than by collectively bargaining them. And I felt that was not legal, that you would subject the state to [a lawsuit] under the contract clause of the Constitution …

While I love George and his staff, I think they’re really smart people and they’re terrific, I would’ve written a different [advisory] letter to the General Assembly. I would’ve been a bit more overt in the risk to the state that such an effort would’ve posed.

WNHH: [Instead of being] more neutral about the pros and cons?

D’Agostino: Yeah. I mean, there were pieces of his letter where [Sen.] Len Fasano, in particular, again a very smart guy, one of the top Republicans, a smart lawyer — he grabbed onto and argued using pieces of that letter [to buttress his argument].

WNHH: Isn’t it the attorney general’s job to be honest so that people who don’t agree with you can actually find stuff in your opinion that would advance a cause you don’t like?

D’Agostino: No.

At the end of the day, to me, the AG’s office is an advocate for positions and an advocate for people. And I just strongly believe that you should be more of an advocate in that role for positions, in particular for positions that subject the state to legal jeopardy.

WNHH: I’m not taking a stand on this Mike; I’m talking about a larger philosophical point about law that this raises. Yeah. John Roberts, when he [was nominated to become] Chief Justice of the U.S. Supreme Court, said, ​“I just call the balls and strikes. I go into what the plain language says; the original meaning is how I interpret the law.”

The other side says he’s lying, he’s using that as cover, because what everyone does with law is you have the conclusion that you want to reach, but you want to make sure that it’s founded in law, and law is fungible enough that it can be interpreted to have an honest legal basis for the conclusion you want. Like Brown v. Board of Ed, to desegregate schools. And Plessy v. Ferguson in the late 1800s, which said they didn’t need to desegregate. It’s a fake exercise.

Jepsen might’ve wanted to come out stronger for unions, because he’s a labor guy. But he had to be intellectually honest and give both interpretations. Whereas you’re saying you can have an honest legal opinion that can advance a cause. 

D’Agostino: Absolutely. That’s what I do now as a lawyer in my day job.

We run into this all the time with junior associates, and we ran into [it] when I first started as a lawyer. When I was coming out of law school, you’re given an assignment and you’re told, ​“OK, we want to make this particular argument for your client.” And a lot of junior associates say, ​“OK, well here’s this, and here’s the pros and cons.” And you go back and say, ​“Wait a minute; you are an advocate. What’s the strongest argument you can make with respect to this particular point, that you want to get across for your client?”

WNHH: Are we in danger of [replicating] Wisconsin? Even in that agreement the Democratic governor struck, we are going to have less generous retirement benefits for most people, and you know some Democrats seem to agree [about seeking benefit cuts] rather than having the private sector aim to do what public sector unions historically get, which is that you can have enough money that you can retire safely and securely on, and you can have health care and not be scared of getting sick or having to choose between food and the hospital .…

D’Agostino: I think I was pretty clear, in terms of the right of people to collectively bargain for a decent wage, health care, and a decent retirement, there’s a push, and it’s not over. I mean I don’t think people realize how close we came to becoming a Wisconsin, and vitiating collective bargaining rights in this state this past legislative session.

Kindall On Union Rights

WNHH: Yesterday we had on Mike D’Agostino, who’s exploring a run for the same office. He said that he thinks the role of the AG sometimes is to find a legal opinion that supports a position he identifies as a justice position when advising the legislature, rather than looking at all sides and giving a more measured opinion.

The example he gives is collective bargaining. The AG gave an opinion that gave a lot of pros and cons about whether you could start by negotiating a statute the Republicans wanted, or whether you wanted to preserve collective bargaining rights the way the Democrats wanted. D’Agostino’s argument was that you could find a basis in law that collective bargaining rights under the Constitution are made sacrosanct. And that he felt shocked that Jepsen helped the Republicans by coming up with legal arguments in favor of [allowing statutory approval].

As attorney general, is it your job to give legal advice that tries to explore what’s the truest interpretation of the law? Or is it to try to find legitimate ways within the law to make the case for what you think is the right outcome?

Kindall: It’s the former, not the latter. But also, advisory opinions are a very small amount of what we do in the AG’s office.

As a private lawyer, if you’re giving your client advice, you want to say, ​“You want to argue this. Here are the arguments in favor of this, and here is what you should think about, because these are the arguments the other side is going to make and these are concerns that you need to consider.” All of that advice would be in a private memo to the client. But when you file the brief in court, you would say, ​“These are all the reasons we’re going to win.”

That’s called advocacy.

With respect to an advisory opinion from the office of the attorney general, you’re asking for legal advice, the best legal advice you can give. You’re not an advocate in that position. Also, you’re not filing a brief in court. You’re giving advice. And unlike [with] a private client, when you’re giving public advice, everyone sees both sides of the argument. And so you say, ​“Listen, you want to do this. Here are the reasons you can do that. But you need to be aware that there are all these cases out there that may go the other way or give support to [the] other side, and you need to consider that when making your decision.”

WNHH: Why would you do that publicly?

Kindall: Because the attorney general is obliged to give advice and counsel to a public official. You couldn’t go to the AG and say, ​“Please give me an advisory opinion.” You have to be an elected official, because it’s advice for the people of the state of Connecticut.

WNHH: In this case some of the elected officials were Republicans who didn’t agree with what the Democrats and labor wanted. The Congressional Budget Office is supposed to be nonpartisan. When you’re giving advice to the governor and the state legislature, are you supposed to be nonpartisan?

Kindall: There’s a difference between being a lawyer and being a policy person … between giving advice and making policy. If I’m giving legal advice, I’m acting as a lawyer. If I’m saying, ​“Listen, change the law so that student loan debt can be discharged through bankruptcy,” I’m making advocacy for a policy position. But as a lawyer you act as a lawyer.

You want your AG to do their job and their job is to act as a lawyer for the state of Connecticut. You want your lawyer to act as a lawyer, thank you very much, and give advice whether the people asking are a Republican or Democrat.

WNHH: So do you think Jepsen did the right thing?

Kindall: Absolutely. Was I in agreement with where the legislature wanted to go? Yes. But that’s not what Jepsen’s role was in that realm. You want to change policy? Be in the legislature and change policy. But you want to act as a lawyer and an advocate? There’s [a] place you act as an advocate and [a] place where you give advice.

WNHH: D’Agostino’s point was that we’re in danger of becoming Wisconsin [and rolling back labor’s right to collective bargaining], and we can’t be giving advisory opinions [helping to] overturn it.

Kindall: And yet Republicans didn’t overturn it. The legislature did their job. And the AG did his job.

D’Agostino On The School Funding Lawsuit

WNHH: [Judge Moukawsher ruled in 2016] that the way we fund schools is constitutionally inequitable. He did not rule that you have to spend more money on schools. He says you’ve got to change [how you spend] it, because you’re cheating poorer districts to help richer districts.

The state appealed the decision. The attorney general gave the opinion that the judge overstepped his bounds and can’t tell the legislature what to do there.

This past session, I would argue, essentially proved the judge right, because, unless I missed something you guys didn’t deal with the issues. You didn’t change the way we fund education. Am I wrong about that?

D’Agostino: We tweaked the formula. We did tweak it. We moved towards a more equitable, non-arbitrary [system].

At the end of the day we certainly didn’t do it to the extent that cures the problem.

WNHH: So was Jepsen right to fight this? What would you do if you do [become] attorney general?

D’Agostino: This goes back to what we were talking about earlier, Paul. I, again, respect George and his team tremendously. [But] I would’ve gone to the legislature and said, ​“The judge is right.” The system we had in place, particularly when he issued his ruling, was arbitrary, did not meet the constitutional requirement of a free and adequate public education, and needed to be changed in order to have a more robust defense in court.

In fairness, I think the judge did overstep his bounds on [a] couple other pieces of his ruling, for example, teacher reviews and evaluations and special education funding. But the core of his holding, that the formula, or the lack of following any kind of formula — throwing it into the political machine and figuring out what town gets what money, without any kind of following or really any strictures — was unconstitutional. I mean, I appreciate the defense [Jepsen’s office has] mounted. But I disagree with it.

WNHH: Does this come back again to what we’ve been talking about — that George Jepsen wanted to agree with the judge, but an intellectually honest reading of the law felt that he’d overstepped?

D’Agostino: He did overstep on a number of things, But I think there’s a role for the chief civil lawyer,

WNHH: So what part was Jepsen wrong about? When he said that in some ways [the judge] overstepped, what did Jepsen get wrong?
D’Agostino: I’m not saying it’s wrong. I’m saying as a matter of policy, though, you can be more of an advocate as a lawyer

I would’ve gone in and said that ​“you the legislature have not actually followed a formula for the last nine years. [That] is unconstitutional. And I will have trouble defending that in court, unless you change it. Not changing it, and continuing to have a system that is simply x amount of money goes here, x amount of money goes there — and that may change depending on who’s chair of the Appropriations Committee —is unconstitutional.

And that’s where you can help shape debate at the legislature at a policy standpoint, as a lawyer.

I’ve had this argument with the [Jepsen] team, that I thought they were going to have a tough time at oral argument, when the judges pressed them about how there is not a formula. [But] that didn’t really come up. I think that the plaintiffs’ side didn’t really do its job at oral argument, because what they should’ve been arguing was, ​“There is no formula. It’s arbitrary; it’s not followed.”

WNHH: The argument that came back, I thought, is that you fix that [problem] through legislatures, through democracy. I thought the judge’s point was that democracy failed to do that through the legislature, and the constitution [establishes a higher standard]. This dates back to civil rights debates. When people said long term, you don’t win the debate if you try to do it by judicial fiat. …

D’Agostino: It’ll be fascinating to see what the [Supreme] Court does. What I’d like to see is that they jettison most parts of [Judge Moukawsher’s] ruling on teacher evaluations and special ed, but that they uphold that core part that there is no formula.

Kindall On The School Funding Lawsuit

WNHH: Your opponent D’Agostino … said that while he agrees that certain parts of [Judge Moukawsher’s decision] were overreaching, certain weren’t. And that it’s important that the state not fight the judge’s decision, as the judge was basically right that the legislature should change this [funding forumla]. He said he would’ve advised the legislature and the governor that he did not want to represent the state and fight the judge’s decision.

Do you agree with Jepsen that he had to [file the appeal], [out of] intellectual honesty or approaching his role the [proper] way? Or do you agree with you opponent D’Agostino, [that the AG should] acknowledge the way the judge overreached, but push your client and say, ​“I don’t want to fight on this because I feel the judge is overall right, [and] this needs to change?”

Kindall: Connecticut General Statute 3 – 125 says the AG shall represent the interests of the state and defend the state’s laws. And until the laws are changed, it is the statutory and fiduciary obligation of the AG to defend those laws.

I think the legislature should act on it. Get on to it! Move!

WNHH: The argument is: Can the judge make them do it?

Kindall: Does this really belong in the legislature? Or do we want education policy in this state decided by one person in a black robe?

WNHH: That gets back to civil rights. … This is where the separation of powers comes in [and allows the judiciary to override unconstitutional actions by a legislature]. Then the other side will come in and say, ​“That’s a slippery slope. You’ll be invoking that on anything you don’t like and giving the judge too much power.”

The third argument is that even if you think [the constitution is] being violated long term, you’re not going to have any meaningful change if the people don’t do it through a democratic process in the legislature. Then other people will say, ​“But we’re a nation of laws and a constitution, and therefore if the judge doesn’t sometimes step in, it’ll never change.”

Kindall: Yes.

WNHH: But you’re saying the statue says that you have to represent the interests of the people and the government. Isn’t it fungible, the definition of [“the people”]?

Kindall: It can be a tricky line to dance sometimes.

WNHH: Does it depend on who the governor is? If the governor is a Republican and says, ​“This is what the people’s interest is; go fight the judge on school desegregation and marijuana” [is that ​“the people”]? Or is the people’s interest with the majority in the legislature? Or is it the people who took a poll? Or the people you agree with? How do you decide who your client is? 

Kindall: That’s easier than you think. The laws of the state of Connecticut are passed by the legislature and signed by the governor. Whether they are Democrats or Republicans, unless that law is unconstitutional, unless it is so clearly, blatantly unconstitutional, the AG has a statutory and fiduciary duty to enforce those laws.

WNHH: In this case you have a judge who says, ​“You’ve [violated] the Constitution.” And you have a governor who doesn’t think that’s the case. But you have some legislators who think he’s right. How do you decide here? 

Kindall: You let the highest court in the land decide.

WNHH: But you’re still taking a stand here

Kindall: Absolutely.

WNHH: When you appeal it, you’re asking the highest court in the [state] to rule against the judge.

Kindall: Absolutely. Yes you are.

But there’s something. You’re making it sound like it’s an all-or-nothing thing, and it’s not. The ultimate decision about what the legal position is, rests by statute with the attorney general. I don’t envy Judge Moukawsher; these are terrible issues to have to deal with.

WNHH: When you’re passing a budget by taking money from Bridgeport and giving it to Westport for schools, something is broken. 

Kindall: Correct, absolutely. I was on the board of ed for West Hartford for five years, two years as its chair. We were always wildly underfunded under the [state Educational Cost Sharing] rules. But with that said, there’s a lot of judgement that goes into it once you bring an appeal.

Click on or download the above audio file or Facebook Live video below to hear the interview with attorney general candidate Clare Kindall on WNHH FM’s ​“Dateline New Haven” program.

Click on or download the above audio file or Facebook Live video below to hear the full interview with attorney general candidate Michael D’Agostino on WNHH FM’s ​“Dateline New Haven” program.

Aneurin Canham-Clyne contributed to this story.