Hugh McQuaid photo
Cathy Ludlum outside Hartford Superior Court Thursday (Hugh McQuaid photo)

Lawyers suing the governor over two executive orders they consider “unconstitutional” argued Thursday that the passage of legislation codifying the orders did not render their complaints moot.

The lawsuits center on two executive orders Gov. Dannel P. Malloy issued creating a pathway for home and daycare workers to unionize. In their complaints, attorneys Joe Summa and Deborah Stevenson, allege Malloy violated labor relations laws and the state constitution when he signed the executive orders.

But in May the legislature passed a bill giving the groups the right to collectively bargain and soon after the state filed a motion to dismiss the lawsuits in Superior Court. Judge James Graham heard arguments from both sides Thursday in Hartford.

The state’s motion, argued by Assistant Attorney General Robert Deichert, rests largely on the passage of the bill, which superseded the executive orders.

“Several people, including the plaintiffs advised the legislature of their concerns about the bill, and they disagreed,” Deichert said.

At times Graham seemed inclined to agree. He questioned Stevenson on whether the passage of the bill addressed her allegations that Malloy had violated the separation of powers doctrine.

“Doesn’t the action by the legislature cure any violations of separation of powers?” he asked.

Stevenson said it did not because both the day and home care providers held union elections before the General Assembly approved the bill, acting on the executive orders she contends Malloy had no authority to issue.

“It’s repugnant to the constitution. No amount of the legislature putting its stamp of approval on it will have any effect,” she said.

Still, Graham commented that neither Stevenson nor Summa addressed the passage of the bill in their lawsuits. While both said they intend to amend their complaints, the judge seemed reluctant to hear arguments attacking the new law when it wasn’t included in either attorneys’ briefs.

“We intend to stop the impact of the law,” Summa said at one point.

“The court doesn’t measure your intent. The court measures your legal tools,” Graham answered.

For his part, Summa largely avoided constitutional questions, instead relying on his experience as a labor attorney to argue against what he called an “immoral and illegal scheme.”

Summa pointed to Cathy Ludlum, a Manchester resident with spinal muscular atrophy who employs personal care attendants, saying the presence of a union interferes with her relationship with her team of employees.

“The state has basically put an 800 pound gorilla in the room with the disabled community,” he said of the union.

Summa also argued that the executive orders were framed as information gathering tools, and said workers who voted to unionize may not have realized they were selecting a union.

But with the orders now being supplanted by the legislation, Graham questioned whether Summa was really just attacking the legislation. He asked Summa whether he thought the legislature was barred from adopting ideas generated by the working groups established by the governor’s executive orders.

“Where do I draw the line?” the judge asked. “Where do I circumscribe the legislative powers under the constitution because the plaintiffs don’t like an action of the executive?”

Though Deichert said that the legislation was not intended to allow the workers to collectively bargain benefits that would result in reduced services for people like Ludlum, Summa alleged it could happen. And if it did she would likely lose the ability to live on her own and would be forced to move to a nursing home, he said.

“Don’t tell me there’s no standing, it’s affecting peoples’ lives,” he said.

After the hearing, Andrew McDonald, Malloy’s chief legal counsel, said Summa and Stevenson were making political arguments for the Tea Party and the Yankee Institute, a conservative think tank helping to fund the litigation. He said he was accustomed to dealing with the “radical Right” in the political arena, but this was something new.

“This was the first time in 20 years of practicing law I’ve watched the radical Right in the courtroom. It was a surreal and bizarre experience,” he said.

However, Sen. Joseph Markley, a plaintiff to the complaints, said he felt they made valid legal arguments. Rep. Rob Sampson, who’s also a plaintiff, agreed, saying the fact the union elections were held before the passage of the bill makes them illegal.

“You can’t make scrambled eggs until the chicken lays the eggs,” he said.

With the arguments made, Graham will decide whether to grant the state’s motion to dismiss the complaints or allow the lawsuits to proceed in court. He did not set a timeline for the decision Thursday.