After a four hour hearing Friday on the state’s motion to dismiss a lawsuit calling for the re-opening of Bergin Correctional Institution, Judge James Graham said he would weigh the testimony before making a decision.

Assistant Attorney General Steven Strom urged the judge to dismiss the suit filed by two union locals representing correctional officers. AFSCME Locals 1565 and 387 claim Gov. Dannel P. Malloy and Department of Correction Commissioner Leo Arnone violated the union’s constitutional rights when it made plans to close the facility without consulting the unions.

Closing the prison increased the number of inmates at the remaining facilities and have forced more of them into non-traditional housing. That creates dangerous working conditions for correctional officers, they said.

But at the hearing, Strom told Graham that the plaintiffs had not satisfied the requirements to prove that the state had trampled the constitution.

They offered “not a shred of evidence of any egregious of shocking conduct that could even raise the specter of a constitutional violation,” he said.

As the lawyer representing the unions, William Gagne Jr. was tasked with meeting a handful of criteria to convince the judge to get involved with the administration of the prison system, an action courts have historically been reluctant to take.

He had to prove that Bergin’s closure was not a moot point now that the facility is shuttered and its staff has already been reassigned. Gagne said the case was still relevant because the state could decide to close some other prisons. It moves to close facilities so fast that it’s hard to get the issue addressed in court before it’s too late, he said.

“It occurs so quickly that it evades litigation,” he said.

Besides, since no correctional officers were laid off as a result of the closure the staff members are still employed by the state and can be reassigned to Bergin, he said. Gagne said the case was also still relevant out of principle.

Claiming the point is moot is “like if I steal money from someone and then I spend it and he sues me for the money and I say, ‘Oh, it’s moot. I already spent the money,’” he told the judge.

Strom said the unions signed an agreement with state over staff re-assignment and the correctional officers all signed on to their transfers. Besides, the court can’t order the prison re-opened because it can’t afford to provide practical relief to the Department of Corrections, he said.

“It’s impossible to order something with no staff and no money to carry out the order,” he said.

Strom argued that the closure of the prison was a decision made by Arnone for budgetary reasons and was perfectly legal. Facilities open and close all the time, he said.

But Gagne contended the decision was ordered by Malloy to coerce prison workers into voting to approve a labor concessions package. He claimed the court could get involved because the impetuous for the closure wasn’t budgetary.

“It was driven by this illegal motive outside [the Correction Department’s] decision making process,” he said.

Questioning Gagne, Graham seemed reluctant to accept this argument. Agency commissioners work for the governor, he said.

“You’re argument seems to be based on the premise that the governor doesn’t have the authority to tell commissioners what to do,” he said.

According to Arnone’s deposition, faced with a nearly $70 million budget cut, he made the decision to close Bergin. But Gagne questioned his credibility, repeatedly claiming that decision came only three days after someone in the Malloy administration instructed him to close the prison. He also cited testimony by Local 1565 President Luke Leone, who said Arnone told him Malloy ordered the closure.

Strom maintained it was a fiscal decision necessitated by a budget approved by the legislature through the normal budgetary process.

He and Graham also questioned why the unions elected to take their concerns to court without exhausting more appropriate venues like the state Board of Labor Relations or the division of Occupational Safety and Health.

Gagne said neither of those entities had the authority to order the facility re-opened but Strom said the unions could have easily filed for a cease and desist order from Labor Relations at some point before the prison closed.

“These are exactly the type of items brought up at labor management meetings,” he said referencing the concerns outlined in Gagne’s brief.

Also at issue was whether correctional officers had any explicit constitutional right to a safe working environment. Strom argued that they do not. Correction officers voluntarily take their jobs and know the inherent risks when they sign up, he said.

Citing another case, Graham said courts are ill-equipped to deal with the increasingly complex problems of prison administration. He said when courts do step in on overcrowding issues, it’s usually not on behalf of prison workers. Rather it’s “premised on the fact that inmates don’t have a choice. They can’t just get up one day and say, ‘this is too overcrowded. I’m leaving,’” he said.

Gagne argued that in this case the state took affirmative action, closing the prison, knowing it would cause overcrowding and put correctional officers in danger.

At the end of the hearing, Graham said he would take the testimony of both sides under consideration but did not offer a timeline on when he may have a decision in the matter.

As he was leaving court, Leone said he thought the hearing went well and said he hoped the judge saw it their way and doesn’t grant the state’s motion to dismiss.