As word spread that state employee unions had officially rejected the budget-balancing labor agreement, a Hartford Superior Court judge dismissed a lawsuit asserting the budget was unbalanced on the day it was signed.

The lawsuit, filed by two Republican lawmakers, two former lawmakers, and a conservative think tank called the Roger Sherman Liberty Center, claims that the budget signed by Gov. Dannel P. Malloy violates a constitutional provision requiring the state’s expenditures to match its revenues. The budget was signed with a $2 billion placeholder set aside in the bill for union concessions.

Judge James Graham dismissed the suit, agreeing with the attorney general’s office that the budget was an ongoing process not ripe for adjudication and that by entertaining the case, the judicial branch would be interfering with the affairs of the legislature.

Associate Attorney General Perry Zinn-Rowthorn’s motion to dismiss the suit rested on those two points.

He said the budget was and continues to be, an ongoing process. He acknowledged the union’s rejection of the agreement which at that time wasn’t known but was assumed.

“We don’t know what this budget is going to look like but it likely will not depend on the [State Employees Bargaining Coalition] agreement,” he said.

Still he said the plaintiffs’ case will likely be irrelevant when the budget is finalized. He urged the court’s restraint and deference to avoid what he said would be significant chaos and uncertainty if the lawsuit were to move forward.

Zinn-Rowthorn said moving forward amounts to disrupting 40 years of accepted and common sense budgeting practices.

Budgets almost always have lapses, for which there are mechanisms designed to correct, he said. Malloy’s Thursday announcement calling for a special legislative session to fill the budget gap was an example of one of those mechanisms, he said.

While acknowledging the $2 billion gap in the budget initially set aside for union concessions was a large one, he asked Graham where he would draw the line. On principle, the lapse was no different than a lapse of $100, he said.

“Is it $10 million? Is it $100 million? How would you do it?” he asked.

Outside the courtroom Roger Sherman Liberty Center Board Chairman Jack Fowler agreed that budgets typically have lapses but said the state expecting to get $1.6 billion in concessions from state unions was absurd from the start.

“I think the legislature may have been on firmer grounds if they had said it was going to come up with $1.6 billion in savings by the sale of unicorns,” he said.

However attorney Martha Dean, representing the plaintiffs, insisted the constitution and its amendments must have meaning. For the court not to declare the budget, which she said the state has freely admitted is out of balance, unconstitutional would make a mockery of it.

Dean said if the state does not have to abide by the constitution it turns the concept of rightness on its head. Every defense attorney would love the precedent it set, she said.

“I’m sorry your honor, there’s no jurisdiction on the basis of this contract because, in fact, my client intends next week to abide to the contract,” she said, quoting a hypothetical defense attorney.

But Graham seemed to lean towards the state’s arguments from the beginning. He questioned Dean extensively throughout her arguments.

The budget explicitly calls for subsequent steps in a process, he said. Your argument seems based on a snapshot of the day the budget was signed, he told her.

Zinn-Rowthorn also said the court had no authority to step into a process that falls under the authority of the legislative branch. Besides, the judge does not have the capacity or the resources to make such determinations, he said. Unlike the legislature, he does not have an Office of Fiscal Analysis, he pointed out.

Dean said none of that was required. All the plaintiffs were asking was for the court to declare the budget unconstitutional, she said. If the court could not make that determination, she asked, then why is the amendment even on the books if it is left to the legislature to decide when it is applied.

“They’ve conceded their budget is unbalanced and that is as much as your honor needs to know,” she said.

During a court recess, Andrew McDonald, Malloy’s chief legal counsel, said the air in the courtroom was thick with irony. Dean, who ran for attorney general last year on a platform that denounced judicial activism, was imploring the court to embrace it, he said. 

And even during arguments Graham maintained the constitution dictates that budget expenditures are up to the legislature.

“How do I get around that?” he asked Dean.

The judge repeatedly asked Dean how he was supposed to define general budget expenditures when a 1996 case, Nielsen vs. State, explicitly recognized the definition of the term has been reserved to the legislature.

“The Nielsen decision is a binding and clear decision for this court to follow,” Graham said, announcing his decision to dismiss the suit.

Fowler said the group of plaintiffs would discuss their options, but did not promise an appeal.