Paul Bass Photo
Jepsen in the WNHH studio.
If he’s wrong about a landmark schools case, George Jepsen argues, Connecticut needs to hear that from the state Supreme Court.
Jepsen, Connecticut’s attorney general, made that argument in a discussion about why he has decided to appeal a judge’s 254-page decision giving the state 180 days to present a plan to fix an unconstitutional and “irrational” system for funding and running the state’s schools.
Superior Court Judge Thomas Moukawsher specifically ordered the state to figure out how to fund poorer communities’ schools more fairly and set new standards for special education, graduation and evaluating teachers. (The judge did not order the state to spend more money overall on education. Read the decision here and more about the roots of the case here.)
Those are policy decisions that legislatures and governors, not judges, should make, Jepsen argued during an appearance on WNHH radio’s “Dateline New Haven” program. He argued that Moukawsher, with whom he once served in the state legislature, exceeded his authority under the state’s constitution in ordering those fixes. That’s why he decided first to file an appeal to the decision to the State Supreme Court rather than prepare the ordered plan, Jepsen said.
Even if he ends up being wrong about the constitutional question, Jepsen said, it’s important that the Supreme Court, not a single Superior Court judge, make that call. Otherwise it will be difficult if not impossible to avoid a political crisis, as lawmakers argue over how to reallocate money and teachers, parents and municipal leaders resist changes they consider illegitimate. The state needs the “legitimacy” of the highest court’s consensus, Jepsen argued.
“I used to represent an urban district. I care deeply about urban areas,” maintained Jepsen, a former state senator from Stamford. His current job calls for him to “defend the constitutionality of Connecticut’s laws.”
In the process of the conversation Jepsen tackled the question of when to oppose lawsuits or judges’ orders that seek social justice and institutional change. He said in general he will defend laws he disagrees with, because that’s his job as attorney general. There are exceptions, he conceded — but CCJEF v. Rell is not one of them.
An edited excerpt from the discussion follows. (You can listen to the full interview at the bottom of this story.)
When To Say No
WNHH: When is it appropriate for an outraged judiciary to feel it needs to step in because the legislative and the executive branch haven’t fulfilled their constitutional duties?
Jepsen: That’s the issue that will be before the Supreme Court.
WNHH:And why do you feel this isn’t one of those cases?
Jepsen: Because I think that the legislature deserves under the standard that Judge Moukawsher enunciated enormous deference from the judicial system.
WNHH: If you get his decision overturned, will [the legislature ever act]? Isn’t his point that for decades this has been going on, cities are getting screwed? … In the end, will the effect of the position you’re taking be that any momentum to change will be killed and schoolchildren will suffer?
Jepsen: The issue is whether he overstepped his constitutional boundaries.
I understand that’s the legal issue and reasonable people can disagree.… The wheelhouse of my job description is defending the constitutionality of Connecticut’s laws. That’s my job. I take it very seriously. If he’s upheld, what I fear is a constitutional crisis or confrontation. The legislature balks at spending more money — and what’s the remedy there?
WNHH: But the legislature doesn’t have to spend more money [to comply with the decision].
Jepsen: I’m sorry. Reallocating the money within the existing funding.
WNHH: Lawyers still make choices about what they press and don’t press because of larger goals, right? Can’t you as a lawyer, with intellectual honesty and consistency, can’t you say, “This is one of those moments when the judiciary had a need to step in? So I’m not saying he didn’t or did overstep his boundaries. Of all the decisions and lawsuits I’m going to file, I’m not going to file this challenge to this because of the social good”?
Jepsen:That’s a very reasonable question. The bottom line is I view it as my institutional role — the exceptions in a minute — to defend the constitutionality of state laws.
Think about this: If you’re going to have the kind of sweeping changes in how education policy is established and determined in this state and implement it, I think you need the legitimacy of a Supreme Court saying, “Yep, Moukawsher got it right.”
If you’re the parent of a disabled child, and a single unelected judge is saying, “the local Board of Education can say we’re not going to take your kid in school,” I think you’d be upset. If you’re a teacher who feels strongly that Moukawsher is wrong about teacher evaluations, you’d need to have that legitimacy that only the Supreme Court can give to have this sweeping kind of policy change.
Let’s say I thought that a law was clearly unconstitutional. I’ve been a longtime advocate of marriage equality. At least two of my colleagues in Virginia and Pennsylvania, when their state laws to end marriage equality were challenged, they refused to defend those. I [too] would have said, “No I believe this is unconstitutional, laws banning marriage equality. I’m not going to defend the state’s laws. If you want it defended, you’ll need to get outside counsel.”
There are laws now that I disagree with as a matter of policy. I’m defending those in court. That’s my job.
WNHH: The law was used as a tool for social change when society couldn’t work out the issue democratically, like with racial inequality [in the 1950s]. One argument is that if the country is not going along to support social change, if it is dictated by a judge, it’s messy. It takes longer to get democratic representatives to solve a problem. The country never buys into it. Over time we see a backlash where it’s being done.
But there is another side to that. Sometimes we have constitutional principles that are at the root of our democracy, like protection of the rights of minorities, that don’t get settled in legislatures. There become exceptional times when we need [judicial intervention]. Is that why you want the State Supreme Court to say, “Yes this is one of those times,” rather than having one judge [decree it]?
Jepsen: That is accurate. The two reasons I’m taking this appeal are one, I do believe he overstepped his constitutional boundaries. And number two, if I’m wrong about that, you need the legitimacy of the Connecticut Supreme Court to say, “yes, we’re going to have radical changes in the way educational policy is determined in this state.”
Click on or download the above sound file to hear the full WNHH radio interview with Jepsen, which also covered his work in getting United Illuminating to agree to clean up New Haven’s English Station, his office’s class-action lawsuit victories, and the challenges of data breaches and opioid addiction. The school decision and appeal discussion begins right before the 14-minute mark.
This episode of “Dateline New Haven” was made possible in part thanks to support from Yale-New Haven Hospital.