WE THE PEOPLE OF CONNECTICUT, INC., ET AL. v. DANNEL P. MALLOY
AC 35143
Appellate Court of Connecticut
May 27, 2014
Beach, Robinson and Sheldon, Js.*
Argued December 9, 2013
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(Appeal from Superior Court, judicial district of Hartford, Graham, J.)
Jane R. Rosenberg, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, Perry Zinn Rowthorn, deputy attorney general, and Robert Deichert, assistant attorney general, for the appellee (defendant).
Opinion
The following relevant facts are undisputed. In March, 2011, Senate Bill No. 1106, providing for a collective 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 Executive 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
Pursuant to the executive orders, the election for the majority representative of family child care providers concluded in December, 2011, and the elеction for the majority representative of personal care assistants concluded in March, 2012. Both groups selected the Service Employees International Union to be their majority representative. 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 eleventh of the Connecticut constitution. The plaintiffs claimed that they were specifically harmed by the issuance of the executive orders procedurally and substantively, 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 legislature make the law establishing the election procedure, and by not having an orderly form of government based on the separation оf powers as established and guaranteed 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 dismiss the plaintiffs’ complaint on the ground of mootness.1 In a memorandum
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
The court issued a memorandum of decision in October, 2012, granting the defendant’s motion to dismiss. The court held that the issue was moot because the public act rеplaced 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 jurisdiction, which imposes a duty on the [trial] court to dismiss а case if the court can no longer grant practical relief to the parties.’’ (Internal quotation marks omitted.) Curley 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 сhange in the condition of affairs between the parties
The plaintiffs claim that the issues raised in their complаint 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 prоviders and personal care attendants, respectively, have an ongoing legal effect because the public act provides that the victors of election procedures conducted pursuant to the executive orders were to continue 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 reprеsentatives of family child care providers and personal care attendants. The executive orders also provided for the establishment of working groups that were to report findings regarding collective bargaining to the governor no later than February 1, 2012. The legislаture 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 providers and personal care attendants, as elected in Executive 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
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 thаt there is a strong likelihood that the substantial majority of cases raising a question about the validity of similar orders will become moot before litigation has concluded. We have no information before us to lead us to conclude that most executive orders are оf inherently short duration. The plaintiffs contend that in this case, the defendant, aware of the judicial challenge to the executive orders, hastened the ratifying legislation through the General Assembly, and that any executive order could escape judicial review by a similаr 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.