81 CBJ 345. THE CREATION AND EVOLUTION OF THE OFFICE OF CONNECTICUT ATTORNEY GENERAL.

• Author: By Henry S. Cohn (fn*)

Connecticut Bar Journal

Volume 81.

81 CBJ 345.

THE CREATION AND EVOLUTION OF THE OFFICE OF CONNECTICUT ATTORNEY GENERAL

Connecticut Bar JournalVolume 81, No. 4, Pg. 345December 2007THE CREATION AND EVOLUTION OF THE OFFICE OF CONNECTICUT ATTORNEY GENERALBy Henry S. Cohn (fn*)The Connecticut government, from its earliest history, always benefited from the advice and counsel of attorneys in private practice. This would include the colossus of the Seventeenth Century, Roger Ludlow, who drafted the Fundamental Orders, reputed to be the world's first written Constitution. After Connecticut became a state, Zephaniah Swift published an influential textbook that helped shape the state's common law. After the Civil War, members of the Connecticut bar, including John Hooker, a brother-in-law of Harriet Beecher Stowe, and William Hamersley assisted governors and legislators in formulating public policy. In contrast to the roles of these nonpublic figures, it was only after 1897 that the position of attorney general was created in Connecticut with the formal duty of being the state's chief legal officer. This article traces the creation and evolution of the Connecticut attorney general's office from 1897 to the implementation of the "Blue Ribbon Report" of 1983 under Joseph Lieberman.

The term "attorney general" in the American legal experience usually refers to a figure that represents a jurisdiction in civil and criminal proceedings. The post of attorney general, with criminal law enforcement responsibilities, often existed at the time when a state entered the Union. In the federal system, the attorney general and the United States Attorney in each judicial district date from the Judiciary Act of 1789. The U.S. Department of Justice, as an office servicing the federal attorney general, was created in 1870 to manage litigation arising from Civil War claims.(fn1)

Connecticut's history was different.

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 of the Superior Court, 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, Hartford State's Attorney from 1908 to 1942, came to symbolize Connecticut's tough, yet fair, approach to criminal justice.

The state from its founding in 1638 to the end of the nineteenth century did not have a state official overseeing non-criminal matters. This meant, of course, that each state department had to resolve legal matters on its own. When crucial, the agency head employed a private attorney either to give a legal interpretation or to appear in a court case. In an effort to eliminate political considerations in the selection of private counsel, a rule developed that whenever the Secretary of the State was an attorney, he would try to answer legal questions for the agency. When the Secretary was not an attorney, he would decide if private counsel was needed to give legal advice and who was to be hired.

We have no record of the names of these advice-giving attorneys, but one may scan the Connecticut Reports to determine the attorneys who appeared for the state in the Supreme Court. They were well-known political figures, and the cases in which these attorneys appeared had an impact on state finances. Here are some examples of the men and their causes. In O'Connell v. State,(fn2) a wife sued the state for the benefits available under a public act of 1861 to assist families impacted by the wartime hostilities. In this case the husband had been a Union soldier and the family had come to Connecticut from Ireland. The husband had deserted almost immediately after the family had arrived from overseas. The court held that the family was not entitled to aid before coming to Connecticut nor after the desertion of the soldier, but were entitled to it for the "intermediate time."

The attorney for the state in O'Connell was Daniel Chadwick. He was a resident of Old Lyme and at the time of oral argument was the chairman of the state legislature's judiciary committee. He became New London State's Attorney in 1866 and United States Attorney for Connecticut in 1880. According to his obituary notice in the Connecticut Reports, he was offered the position of Superior Court judge, but declined it "because his practice gave him so much larger opportunities to make reasonable provision for the domestic circle which he loved."(fn3)

Richard D. Hubbard was another attorney that obtained state business. When he represented the state treasurer in Coite v. Society for Savings,(fn4) a case involving a tax on savings banks, he was state's attorney for Hartford County. He appeared as the attorney for the state where a similar tax issue arose in Coite v. Connecticut Mutual Life Insurance Co.(fn5); then in private practice, he had recently served a term in Congress. When he took Connecticut's side in State v. Howarth,(fn6) an estate matter, he had served a term as governor for the prior two years and had returned to private practice.

Tilton E. Doolittle and his partner William Bennett appeared for Connecticut in the case of State v. New Haven and Northampton Co.,(fn7) which concerned a railroad's duty to repair an abandoned premises. Doolittle had been a state representative and was the newly appointed state's attorney for New Haven County. He was state's attorney for an additional seventeen years. His partner Bennett had joined the firm in 1876. Doolittle was described in the note in the Connecticut Reports as a "lawyer down to the quick; he delighted in the contest, the stress and strain and struggle of forensic life."(fn8)

A founder of the American Bar Association, Simeon Baldwin was assigned the case of Treasurer of the State v. The Connecticut Central Railroad Co.(fn9) A New Haven resident, Baldwin in 1886 was one of the nation's prominent railroad and corporate attorneys. He was initially a Republican, but switched to the Democratic party, joining the defection by some Republicans over the nomination of James Blaine in 1884. After the Central Connecticut appeal, he remained in private practice and then was appointed a Justice of the Connecticut Supreme Court, and eventually Chief Justice. On reaching the mandatory retirement age of seventy, Baldwin was elected governor for two terms. Baldwin did not fair well in the Central Railroad case as the Supreme Court reversed a trial court judgment of foreclosure in favor of the state on the ground that a different party plaintiff should have commenced the suit.

Charles E. Perkins was Harriet Beecher Stowe's nephew. His father, Thomas Clapp Perkins, who died in 1870, was recognized as the dean of the capital city's bar. Mark Twain had stayed in Thomas Perkins's home when he first traveled to Hartford. Charles Perkins succeeded his father and expanded the firm. He appeared in numerous cases, usually opposing the state's position. He appeared on behalf of the state in State v. Royce(fn10); he did not prevail as the court held that a taxpayer was not liable for the balance of a tax due on the sale of shares of stock as the state failed to prove that the taxpayer had not fulfilled the requirements of the applicable statute.

After completing his term as United States Attorney and before he became governor, George McLean appeared for the state in State v. Blake.(fn11) The case held that a decedent's charitable bequest to the state, made in trust, failed because the state treasurer did not have power to accept a bequest and because the state legislature failed to pass a bill specifically accepting the bequest and appointing a trustee therefor.

In addition, the state's attorneys from each county, as the case of State v. Keena(fn12) pointed out, continuously appeared on behalf of the state in mandamus and quo warranto actions "when those writs are issued on application of the State alone." State's Attorney Hamersley sought a mandamus on behalf of the state in contentious litigation involving the refusal of the New Haven Railroad to maintain a scheduled stop in Plantsville, a part of Southington. Hamersley acted in light of legislation requiring the railroad to continue to make the stop.(fn13)

This means of resolving agency questions and lawsuits did not satisfy everyone. There were built-in inconsistencies as an agency might receive conflicting opinions from attorneys located in different counties. The bar questioned the political nature of the appointment process of the attorneys chosen to represent the state. It was recognized that the opinions of counsel were not official binding precedent. Finally the costs of retaining private counsel was a drain on the state treasury. Governors Charles Andrews, who served from 1879 to 1881, and Hobart Bigelow, who served from 1881 to 1883, both recommended in their messages to the General Assembly that the post of attorney general should be established.

The Connecticut Bar Association established a committee on January 17, 1883, to study the governors' recommendations to establish the post of attorney general, and it reported to its membership at a meeting held at the Capitol on January 31, 1883. The committee consisted of Simeon Baldwin, chairman, and Morris W. Seymour and Johnson T. Platt...