CTNJ file photo
Former Gov. John G. Rowland speaks at the Hartford Club (CTNJ file photo)

On Jan. 17 U.S. Supreme Court Justices will decide whether to hear arguments in a lawsuit that pitted former Gov. John G. Rowland and his former Budget Director Marc Ryan against the state’s labor unions.

The state of Connecticut, which is represented by Attorney General George Jepsen, decided earlier this month to withdraw its petition to the high court, but the petition filed by lawyers for Rowland and Ryan is going forward.

The petition challenges the Second Circuit Court’s decision in the case as it relates to the actions of Rowland and Ryan.

A three-judge panel of the Second Circuit Court found that it was wrong for Rowland and Ryan, to lay off more than 2,800 state employees in 2003. The decision to terminate their employment “violated their First Amendment right to freedom of association by targeting union employees for firing based on their union membership,” Judge Gerard Lynch wrote for the panel in June.

Rowland and Ryan are being held personally liable for their decision. They are represented by Attorney Daniel Klau of McElroy, Deutsch, Mulvaney & Carpenter, LLP of Hartford.

In an emailed statement, earlier this month, Rowland and Ryan maintained that if the Second Circuit decision stands, it “fundamentally hobbles public sector chief executives at all levels during the collective bargaining process. It will turn the collective bargaining process on its head and so favor unions in negotiations that public sector finances will be critically undermined in the future.”

But an attorney for the labor unions argued in his opposition brief that settlement talks between the state and the labor unions will “render this matter moot.” David Golub, who represents the State Employees Bargaining Agent Coalition, wrote that those discussions over damages are one of the main reasons the Supreme Court should not hear the case.

The scenario “presented by this case has never occurred before, was based upon highly unique (and unusual) set of stipulated facts, and is unlikely to occur again, thus further obviating the need for Supreme Court review,” Golub wrote in a Dec. 2 to Jepsen encouraging him to drop his petition to the Supreme Court.

The U.S. Supreme Court received more than 7,000 petitions during the 2011-12 term and issued 64 signed opinions. Jepsen agreed with Golub that the chances the court would decide to review the case are slim considering the Second Circuit decision was unanimous and the circumstances of the underlying complaint were unique.

But Klau, who declined to comment for this article, only needs four of the nine justices to agree to hear the case.

In his brief to the court, Klau argues that the question is not whether Rowland and Ryan are entitled to qualified immunity for allegedly ‘“firing’ union members because of anti-union amicus or a desire to retaliate against the unions because they did not support Governor Rowland’s 2002 re-election campaign.”

Klau argues that the Supreme Court should take the petition and reverse the Second Circuit, “lest every layoff – particularly by an incumbent governor who is perceived as “anti-union” – become a motive based constitutional tort.”

Both the unions and Rowland agreed that bumping rights and seniority were appropriately applied during enforcement of the layoffs. It’s Rowland and Ryan’s motive behind the layoffs that they can’t agree upon.

“The question is not whether these facts are true (or must be accepted as true on a motion to dismiss), but whether, like the allegations concerning subjective motive, they are legally relevant,” Klau argues in his petition to the court. “To treat these types of facts as legally relevant in a First Amendment ‘retaliation’ case unavoidably requires federal courts and juries to second guess budgetary choices that should be left to the discretion of elected officials, subject to review by the voters at the ballot box.”

Klau goes onto argue: “In this particular case, treating these facts as legally relevant ultimately would require a judge or jury to go behind the list of positions that Governor Rowland ordered eliminated (Pet.6-7), and determine why he selected those specific positions for elimination and whether he can justify his choices by reference to some indeterminate legal standard.”