We the People of Connecticut, Inc. v. Malloy ( 2014 )

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WE THE PEOPLE OF CONNECTICUT, INC., ET AL. v.
DANNEL P. MALLOY
(AC 35143)
Beach, Robinson and Sheldon, Js.*
Argued December 9, 2013—officially released May 27, 2014
(Appeal from Superior Court, judicial district of
Hartford, Graham, J.)
Deborah G. Stevenson, for the appellants (plaintiffs).
Jane R. Rosenberg, assistant attorney general, with
whom, on the brief, were George Jepsen, attorney gen-
eral, Perry Zinn Rowthorn, deputy attorney general,
and Robert Deichert, assistant attorney general, for the
appellee (defendant).
Opinion
BEACH, J. The plaintiffs, We the People of Connecti-
cut, Inc., Maria Nelson, Laurie Wojnarowski, Mary D.
Mathes, Angela Griffs, Jay Kiley, and Linda Garamello-
Fusco, appeal from the judgment of the trial court grant-
ing the motion to dismiss of the defendant, Governor
Dannel P. Malloy. We affirm the judgment of the trial
court.
The following relevant facts are undisputed. In
March, 2011, Senate Bill No. 1106, providing for a collec-
tive bargaining process for family child care providers,
was proposed in the General Assembly. In June, 2011,
the legislature adjourned without voting on the bill.
On September 21, 2011, the defendant issued Execu-
tive Order No. 9, which prescribed a process by which
a majority representative of family child care providers
who participate in the child care subsidy program under
General Statutes § 17b-749, was to be selected. It pro-
vided that the representative was to meet and confer
with representatives of the Department of Social Ser-
vices and any other executive branch representatives
deemed appropriate by the defendant to discuss certain
designated topics; it further provided that a working
group was to be appointed by the defendant on or before
October 1, 2011, for the purpose of making recommen-
dations regarding the structuring of collective bar-
gaining rights for family child care providers. Not later
than February 1, 2012, the working group was to report
its findings to the defendant. On the same day, the
defendant also issued Executive Order No. 10, which
was similar to Executive Order No. 9, but pertained to
personal care attendants. It provided (1) for the election
of a majority representative of personal care attendants,
(2) for the establishment of a working group on or
before October 1, 2011, for the purpose of determining
how best to structure collective bargaining rights for
personal care attendants, and (3) that the working
group report its findings to the defendant no later than
February 1, 2012.
Pursuant to the executive orders, the election for the
majority representative of family child care providers
concluded in December, 2011, and the election for the
majority representative of personal care assistants con-
cluded in March, 2012. Both groups selected the Service
Employees International Union to be their majority rep-
resentative. The final reports of the working groups for
family child care providers and personal care attendants
were issued on February 15, 2012.
In March, 2012, the plaintiffs instituted an action in
the Superior Court alleging that, by issuing Executive
Orders Nos. 9 and 10, the defendant exceeded his
authority and violated the principle of separation of
powers as provided in articles second, fourth and elev-
enth of the Connecticut constitution. The plaintiffs
claimed that they were specifically harmed by the issu-
ance of the executive orders procedurally and substan-
tively, by not being able to participate in the election
procedure, by being represented by an entity that was
elected in an illegal procedure, by not having the legisla-
ture make the law establishing the election procedure,
and by not having an orderly form of government based
on the separation of powers as established and guaran-
teed by the Connecticut constitution. In their prayer for
relief, the plaintiffs sought injunctive relief invalidating
Executive Orders Nos. 9 and 10.
In March, 2012, the defendant filed a motion to dis-
miss the plaintiffs’ complaint on the ground of moot-
ness.1 In a memorandum of law in support of the motion,
the defendant argued that the complaint was moot
because of legislation then pending. The legislation then
pending was enacted two months later.
In May, 2012, the legislature enacted No. 12-33 of the
2012 Public Acts, effective July 1, 2012.2 Public Act 12-
33 provided that ‘‘family child care providers,’’ defined
in the act to be persons who provide child care services
pursuant to § 17b-749, were to have the right to bargain
collectively. The act prescribed a collective bargaining
process. Public Acts 2012, No. 12-33, § 2. It further pro-
vided that the Commissioner of Social Services was to
compile a list of names of family child care providers
who participated in the § 17b-749 subsidy program on
or after July 1, 2012, and the list was to be updated on
a monthly basis. Public Acts 2012, No. 12-33, § 2 (c).
Public Act 12-33, § 2 (g) provided: ‘‘Any provider organi-
zation certified as the majority representative of family
child care providers in any election held prior to the
effective date of this section pursuant to Executive
Order Number 9 of Governor Dannel P. Malloy may
provide proof of such certification to the State Board of
Labor Relations and the State Board of Labor Relations
shall certify such majority representative as the exclu-
sive bargaining agent for such providers without the
requirement of an additional election unless and until
such time as a question concerning representation is
appropriately raised under this section and section 1
of this act.’’
Public Act 12-33, § 6 provided that personal care
attendants also were to have the right to bargain collec-
tively, and it prescribed a similar collective bargaining
process. It established a personal care attendant work-
force council to ‘‘ensure the quality of . . . care.’’ Pub-
lic Acts 2012, No. 12-33, § 5 (a). It provided that the
workforce council was to compile a list of names of
personal care attendants no later than October 1, 2012,
to be revised monthly thereafter. Public Acts 2012, No.
12-33, § 5 (f) (1). Public Act 12-33, § 6 (f) provided: ‘‘Any
organization certified as the majority representative of
personal care attendants in any election held prior to
the effective date of this section pursuant to Executive
Order Number 10 of Governor Dannel P. Malloy, may
provide proof of such certification to the State Board of
Labor Relations and the State Board of Labor Relations
shall certify such majority representative as the exclu-
sive bargaining agent for such personal care attendants
without the requirement of an additional election unless
and until such time as a question concerning representa-
tion is appropriately raised under this section and sec-
tion 2 of this act.’’
The court issued a memorandum of decision in Octo-
ber, 2012, granting the defendant’s motion to dismiss.
The court held that the issue was moot because the
public act replaced the executive orders and that no
practical relief could be given to the plaintiffs with
respect to the executive orders. This appeal followed.
‘‘Mootness . . . implicates subject matter jurisdic-
tion, which imposes a duty on the [trial] court to dismiss
a case if the court can no longer grant practical relief
to the parties.’’ (Internal quotation marks omitted.) Cur-
ley v. Kaiser, 112 Conn. App. 213, 229, 962 A.2d 167
(2009). ‘‘Mootness presents a circumstance wherein the
issue before the court has been resolved or had lost its
significance because of a change in the condition of
affairs between the parties.’’ (Internal quotation marks
omitted.) State v. Begley, 122 Conn. App. 546, 550–51,
2 A.3d 1 (2010). ‘‘A case becomes moot when due to
intervening circumstances a controversy between the
parties no longer exists.’’ (Internal quotation marks
omitted.) Waterbury Hospital v. Connecticut Health
Care Associates, 186 Conn. 247, 252, 440 A.2d 310
(1982).
The plaintiffs claim that the issues raised in their
complaint were not moot, but rather that the executive
orders have had a continuing legal effect and exist side
by side with Public Act 12-33.3 They contend that the
public act itself demonstrates that the procedures for
electing majority representatives of family child care
providers and personal care attendants, respectively,
have an ongoing legal effect because the public act
provides that the victors of election procedures con-
ducted pursuant to the executive orders were to con-
tinue to act as exclusive bargaining agents for their
respective groups until such time as new elections
should be held.
There is no practical relief that can be given to the
plaintiffs. Executive Orders Nos. 9 and 10 provided,
respectively, for elections of majority representatives
of family child care providers and personal care atten-
dants. The executive orders also provided for the estab-
lishment of working groups that were to report findings
regarding collective bargaining to the governor no later
than February 1, 2012. The legislature passed Public
Act 12-33, which, for purposes of the claims raised in
the present case, entirely replaced Executive Orders
Nos. 9 and 10. The act established collective bargaining
for the two groups at issue and further provided that
the majority representatives of family child care provid-
ers and personal care attendants, as elected in Execu-
tive Orders Nos. 9 and 10, respectively, were to act as
the exclusive bargaining agents without the need for
new elections. Even if the executive orders were
rescinded, Public Act 12-33 would still be in place. Any
challenge would now appropriately be addressed, if at
all, to the legislation. The requested remedy, in this
case, then would have no practical effect.4
The plaintiffs argue in the alternative that their claims
fall under the ‘‘capable of repetition yet evading review’’
exception to the mootness doctrine. To qualify under
this exception, an otherwise moot question must satisfy
the following three requirements: ‘‘First, the challenged
action, or the effect of the challenged action, by its very
nature, must be of a limited duration so that there is a
strong likelihood that the substantial majority of cases
raising a question about its validity will become moot
before appellate litigation can be concluded. Second,
there must be a reasonable likelihood that the question
presented in the pending case will arise again in the
future, and that it will affect either the same complain-
ing party or a reasonably identifiable group for whom
that party can be said to act as surrogate. Third, the
question must have some public importance. Unless all
three requirements are met, the appeal must be dis-
missed as moot.’’ (Internal quotation marks omitted.) In
re Priscilla A., 122 Conn. App. 832, 836, 2 A.3d 24 (2010).
The plaintiffs’ claim is of public importance, but the
plaintiffs have not demonstrated that the effect of the
executive orders, by their very nature, is of such limited
duration that there is a strong likelihood that the sub-
stantial majority of cases raising a question about the
validity of similar orders will become moot before litiga-
tion has concluded. We have no information before us
to lead us to conclude that most executive orders are
of inherently short duration. The plaintiffs contend that
in this case, the defendant, aware of the judicial chal-
lenge to the executive orders, hastened the ratifying
legislation through the General Assembly, and that any
executive order could escape judicial review by a simi-
lar process. Both the premise and the conclusion of the
argument are purely speculative. Finally, there has been
no demonstration that the question presented in this
case will arise again and will affect the same persons
or any similar group.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The motion to dismiss also alleged lack of standing and sovereign immu-
nity. The trial court did not reach these grounds, nor do we.
2
Public Act 12-33 is now codified as General Statutes § 17b-705 et seq.
3
The plaintiffs also argue that the trial court ignored the appropriate
standard of review for a motion to dismiss when it failed to analyze whether
their complaint stated a cause of action and instead determined that their
claim was moot. The court did not apply an incorrect standard. A motion
to dismiss properly attacks the jurisdiction of the court; Hayes Family Ltd.
Partnership v. Glastonbury, 132 Conn. App. 218, 221, 31 A.3d 429 (2011);
and mootness implicates a court’s subject matter jurisdiction. Sweeney v.
Sweeney, 271 Conn. 193, 201, 856 A.2d 997 (2004).
4
The plaintiffs also argue that Public Act 12-33 is unconstitutional. We
cannot review this claim. Our review of the complaint reveals that it cannot
reasonably be construed to include a challenge to the constitutional validity
of Public Act 12-33. See Young v. Vlahos, 103 Conn. App. 470, 476, 929 A.2d
362 (2007) (interpretation of pleadings question of law subject to plenary
review), cert. denied, 285 Conn. 913, 943 A.2d 474 (2008). The trial court
did not consider or rule on the validity of Public Act 12-33.