Maloney v. Pac, 183 Conn. 313, 320-21, 439 A.2d 349, 353-54 (1981) (citations omitted); see also Flast v. Cohen, 392 U.S. 83, 98-99, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968). Here all plaintiffs have clearly made such colorable claims, cf. Board of Pardons v. Freedom of Information Comm'n, 210 Conn. 646, 650, 556 A.2d 1020, 1022 (1989) (Board has "institutional interest in the integrity of its decision-making process[,]" and therefore standing to seek relief against another state agency), and the absence of express authorization is no bar. Dowe v. Egan, 133 Conn. 112, 48 A.2d 735 (1946) (comptroller sought declaratory judgment without any express authority). B. The Statutory Requirement that the Attorney General Represent Plaintiffs
Defendant's memorandum at 18. Defendant supports her argument that these funds constitute the general revenue and public funds of the state, and thus are immune from federal judgment, by citing the Court to Dowe v. Egan, 133 Conn. 112, 48 A.2d 735 (1946), and New Jersey Sports and Exposition Authority v. McCrane, 61 N.J. 1, 292 A.2d 545 (1972). In Dowe, the legal status of Connecticut's unemployment compensation fund was considered, and found to constitute "public money" as those words are used in the state constitution with regard to the question of authority for disbursement and custody of the funds in that state.
13 We previously have recognized that the 1818 constitution, and the declaration of rights contained in article first of that constitution in particular, did not establish new or additional rights but, rather, incorporated into our founding document certain fundamental rights that already were protected by statute or the common law. See, e.g., Dowe v. Egan, 133 Conn. 112, 119, 48 A.2d 735 (1946); see also W. Horton, The Connecticut State Constitution (2d Ed.2012) pp. 3–4; C. Collier, “The Connecticut Declaration of Rights Before the Constitution of 1818: A Victim of Revolutionary Redefinition,” 15 Conn. L.Rev. 87, 96 (1982). Consistent with this view, when interpreting provisions of our constitution, we have observed that, “[t]o understand the intent of the instrument it is often necessary to have recourse to the form of government as it had existed before, and did exist at the time of, the adoption of the 1818 constitution.”
Although not controlling, another persuasive factor in reaching this conclusion is that Connecticut law treats money in the retirement fund as "public money." Dowe v. Egan, 133 Conn. 112, 48 A.2d 735 (1946). Plaintiffs' major contention is that, even assuming that the action is properly characterized as one against the state which would normally entitle the state to invoke its Eleventh Amendment immunity, the state here has waived that immunity and in effect consented to suit.
The provision of such rights must be treated as significant given this court's previous acknowledgement "that ‘[t]he constitution adopted in 1818 did not create a government but gave to that which had already been established the sanction of the people and, in very general language, formulated its framework.’ Dowe v. Egan, 133 Conn. 112, 119, 48 A.2d 735 (1946) ; see also C. Collier, ["The Connecticut Declaration of Rights Before the Constitution of 1818: A Victim of Revolutionary Redefinition," 15 Conn. L. Rev. 87, 96 (1982)] (‘the substance of the ancient statutory and common law protections continued unchanged’ following the adoption of the Bill of Rights in 1818)." State v. Ayala, supra, 222 Conn. at 351, 610 A.2d 1162.
We previously have recognized that the 1818 constitution, and the declaration of rights contained in article first of that constitution in particular, did not establish new or additional rights but, rather, incorporated into our founding document certain fundamental rights that already were protected by statute or the common law. See, e.g., Dowe v. Egan, 133 Conn. 112, 119, 48 A.2d 735 (1946); see also W. Horton, The Connecticut State Constitution (2d Ed. 2012) pp. 3-4; C. Collier, "The Connecticut Declaration of Rights Before the Constitution of 1818: A Victim of Revolutionary Redefinition," 15 Conn. L. Rev. 87, 96 (1982). Consistent with this view, when interpreting provisions of our constitution, we have observed that, "[t]o understand the intent of the instrument it is often necessary to have recourse to the form of government as it had existed before, and did exist at the time of, the adoption of the [1818] constitution."
That the framers of the 1818 constitution did not act to preclude retroactive revival of time barred claims, in the face of a dispute centered on that point that went to the United States Supreme Court, suggests that the right claimed by the defendant did not exist in the 1818 constitution, which “did not create a government but gave to that which had already been established the sanction of the people and, in very general language, formulated its framework.” Dowe v. Egan, 133 Conn. 112, 119, 48 A.2d 735 (1946). Accordingly, we conclude that the constitutional history factor favors the plaintiff in the present case.
We note in this regard that, "[t]o understand the intent of the instrument it is often necessary to have recourse to the form of government as it had existed before, and did exist at the time of, the adoption of the constitution." Dowe v. Egan, 133 Conn. 112, 119, 48 A.2d 735 (1946); see id., 119-20 (examining governmental structure prior to 1818 to determine scope of provisions outlining powers of treasurer and comptroller); see also Walkinshaw v. O'Brien, 130 Conn. 122, 128-29, 32 A.2d 547 (1943) (examining structure of court system prior to 1818 to interpret term "`inferiour courts'" in article fifth, § 1, of Connecticut constitution). Although the plaintiff argues that the drafters of article sixth, § 10, must have worded the provision broadly with the intent that it apply to future as well as already existing offices, she offers no particular reason why the language used compels that conclusion rather than an equally plausible competing one, namely, that the drafters had in mind only those offices then in existence.
This court has previously stated that "[t]he constitution adopted in 1818 did not create a government but gave to that which had already been established the sanction of the people and, in very general language, formulated its framework." Dowe v. Egan, 133 Conn. 112, 119, 48 A.2d 735 (1946); see also C. Collier, supra, 96 ("the substance of the ancient statutory and common law protections continued unchanged" following the adoption of the Bill of Rights in 1818). Article first, 14 of the constitution of 1818 provided in relevant part: "All prisoners shall, before conviction, be bailable by sufficient sureties, except for capital offences, where the proof is evident, or the presumption great . . . ."
No similar question appears to have been raised in the only case we have found where this court considered a case where the plaintiff was represented by an assistant attorney general with the attorney general on the brief and the defendant was represented by another assistant attorney general. See Dowe v. Egan, 133 Conn. 112, 48 A.2d 735. Nor in the circumstances of this case are we aided by any resolution of the conflict as to who, at this point, represents FOIC — the attorney general, as he insists, or Attorney Pearlman, who asserts that by resolution of the FOIC, under the authority of Public Act No. 77-609, he now represents that commission and the attorney general does not.