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Lamberty v. Connecticut State Police Union

United States District Court, D. Connecticut

October 19, 2018

MARC LAMBERTY, JOSEPH MERCER, CARSON KONOW, and COLLIN KONOW, Plaintiffs,
v.
CONNECTICUT STATE POLICE UNION, KEVIN LEMBO, Comptroller, State of Connecticut, BENJAMIN BARNES, Secretary of Office of Policy and Management, State of Connecticut, and SANDRA FAE BROWN-BREWTON, Undersecretary of Labor Relations for the Office of Labor Relations, State of Connecticut, Defendants.

          RULING AND ORDER ON MOTION FOR SUMMARY JUDGMENT

          VICTOR A. BOLDEN, UNITED STATES DISTRICT JUDGE.

         On March 14, 2015, current and former Connecticut state troopers Marc Lamberty, Joseph Mercer, Carson Konow, and Collin Konow (“Plaintiffs”) sued the Connecticut State Police Union (“the State Police Union”), Kevin Lembo, Benjamin Barnes, Lisa Grasso Egan, [1] and Sandra Fae Brown-Brewton (collectively, “State Defendants”). Complaint, dated Mar. 14, 2015 (“Compl.”), ECF No. 1. Plaintiffs alleged that Defendants injured them by deducting “agency fees” (also known as “fair share fees” or “bargaining fees”) from their pay without providing all the pre-collection notice and procedural safeguards that had been, at that time, articulated by the U.S. Supreme Court, in violation of their rights under the First and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983. Id.

         On June 27, 2018, the U.S. Supreme Court decided Janus v. AFSCME, overturning Abood v. Detroit Board of Education and holding that any state withholding of fair share fees from public employees covered by collective bargaining agreements was impermissible under the First Amendment. Janus v. AFSCME, 585 U.S.__ (slip op.), 138 S.Ct. 2448 (2018).

         On August 9, 2018, Plaintiffs moved for summary judgment, arguing that there was no longer any dispute of material fact in light of the holding of Janus. See Plaintiffs' Motion for Summary Judgment, dated Aug. 9, 2018 (“Pls.' Mot.”), ECF No. 162. Plaintiffs' motion also requests relief in the form of an award of costs and attorney's fees. See Plaintiffs' Memorandum of Law in Support of their Motion for Summary Judgment, dated Aug. 9, 2018 (“Pls.' Mem.”), annexed to Pls.' Mot., ECF No. 162-2, at 8-10.

         The State Defendants opposed summary judgment, arguing that the Court should deny the motion and dismiss the case as moot. See State Defendants' Memorandum of Law in Opposition to Motion for Summary Judgment, dated Aug. 30, 2018 (“State Defs.' Mem.”), ECF No. 170. The State Police Union joined the State Defendants' opposition and agreed that mootness is a threshold issue. See Objection to Motion for Summary Judgment, dated Aug. 30, 2018 (“Union Opp.”), ECF No. 171.

         For the following reasons, Plaintiffs' motion for summary judgment is DENIED without prejudice to renewal in the event there is an effort to reintroduce agency fees and to the extent the Plaintiffs have not been adequately reimbursed for past agency fees already imposed. Because Plaintiffs, however, may be prevailing parties in this action, Plaintiffs may file a post-judgment motion for attorney's fees and costs.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Plaintiffs, current and former state troopers with the Connecticut State police, filed the original Complaint against Defendants on March 14, 2015, alleging that since they withdrew from membership in the State Police Union, the State Police Union and the State Defendants deducted fair share fees under Conn. Gen. Stat. § 5-280 from their wages, in violation of their rights under the First and Fourteenth Amendments. See Compl. On February 17, 2016, Plaintiffs filed a Second Amended Complaint. Second Amended and Supplemental Verified Complaint, dated Apr. 24, 2015 (“Second Am. Compl.”), ECF No. 41.

         Briefly, the Second Amended Complaint alleges five causes of action: (1) by requiring Plaintiffs to make any financial contribution in support of any union, Conn. Gen. Stat. § 5-280 violates their rights to free speech and association under the First and Fourteenth Amendments, Second Am Compl. ¶ 68; (2) the State Police Union and Mr. Lembo violated Mr. Lamberty's First and Fourteenth Amendment rights to be provided with appropriate pre-collection notice and procedural safeguards prior to the seizure of agency fees, id. ¶ 72; (3) the State Police Union and Mr. Lembo violated Mr. Lamberty's First and Fourteenth Amendment rights because the fee notice for the 2014-15 fee year failed to comply with proper constitutional safeguards, id. ¶ 76; (4) that the Union, Mr. Lembo, and/or their agents, violated the rights of Carson Konow, Collin Konow, and Mr. Mercer by failing to honor their union membership resignations and by failing to provide them with constitutionally-required procedural safeguards, id. ¶¶ 82-83; and (5) the indemnification provisions of the State Police Union's collective bargaining agreements are void as against public policy, invalid, and unenforceable insofar as they cause the State Defendants to ignore consideration of whether agency fees violate the constitutional rights of non-members, id. ¶ 87. Plaintiffs sought a combination of monetary, injunctive and declaratory relief for these claims. See Id. at 23-28 (prayer for relief).

         On April 11, 2017, Plaintiffs moved for partial summary judgment on Count IV of the Second Amended Complaint. See Pls.' Motion for Summary Judgment, dated Apr. 11, 2017, ECF No. 106. Both the State Defendants and the State Police Union opposed that motion, and the Court scheduled oral argument for October 18, 2017. See State Defs.' Memorandum in Opposition to Motion for Partial Summary Judgment, dated June 14, 2017, ECF No. 118; Connecticut State Police Union Memorandum in Opposition to Motion for Partial Summary Judgment, dated June 15, 2017, ECF No. 120; Notice of Motion Hearing, dated Sept. 1, 2017, ECF No. 124. By the time of that argument, however, the U.S. Supreme Court had granted certiorari in Janus; this Court then suspended all pending deadlines and denied the motion for summary judgment, without prejudice, because the Supreme Court's decision in Janus could affect the outcome of the motion. See Order, dated Oct. 18, 2017, ECF No. 130; Order Denying Motion for Summary Judgment Without Prejudice, dated Oct. 27, 2017, ECF No. 135.

         A few weeks after the Janus oral argument, this Court set a new schedule to resolve the case quickly once the Supreme Court decided Janus. See Order, dated Mar. 9, 2018, ECF No. 139. On June 27, 2018, the Supreme Court decided Janus, overruling Abood and holding that states could “no longer extract agency fees from nonconsenting employees.” Janus, 138 S.Ct. at 2486, slip op. at 48-49 (“Neither an agency fee nor any other payment to the union may be deducted from a nonmember's wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed . . . Abood was wrongly decided and is now overruled.”) (internal citations omitted).

         On June 29, 2018, State Defendant Sandra Fae Brown-Brewton, Undersecretary of Labor Relations for the Office of Labor Relations, State of Connecticut, issued General Notice No. 2018-06, instructing all Labor Relations Designees of the state that “In response to the Janus decision, the State shall immediately discontinue the collection of agency service fees from nonunion members.” See General Notice No. 2018-06 re: Agency Fees to Cease per Janus v. AFSCME, dated June 29, 2018, annexed as Ex. 2 to State Defendants' Motion to Dismiss, filed Oct. 1, 2018 in Wholean v. CSEA SEIU Local 2001 et. al., 3:18-cv-1008-WWE (D. Conn. Oct. 1, 2018), ECF No. 39-2. That same day, State Defendant Benjamin Barnes also announced that he would be issuing new procedures to agencies in light of Janus. See Stephen Singer, After Supreme Court Ruling, Malloy Administration Devising New Union Rules, Hartford Courant (June 29, 2018), http://www.courant.com/business/hc-biz-supreme-court-unions-connecticut-20180629-story.html. Comptroller Kevin Lembo's office publicly stated that withholding of agency fees would end effective with state employees' July 20 paychecks, reflecting the time period from June 22, 2018 to July 5, 2018. See Stephen Singer, Connecticut Drops Fees For Some State Employees In Response To U.S. Supreme Court Ruling On Union Dues, Hartford Courant (July 2, 2018), http://www.courant.com/business/hc-biz-connecticut-state-employees-janus-20180702-story.html. In early August, Connecticut Attorney General George Jepsen issued legal guidance on implementation of Janus. See General Guidance Regarding the Rights and Duties of Public-Sector Employers and Employees in the State of Connecticut after Janus v. AFSCME Council 31, https://portal.ct.gov/AG/General/Guidance_on_Janus; Stephen Singer, Jepsen Outlines Connecticut's Compliance With Supreme Court's Union Fees Ruling, Hartford Courant (Aug. 9, 2018), http://www.courant.com/business/hc-biz-public-employees-20180809-story.html.

         On August 9, 2018, Plaintiffs moved for summary judgment on Counts I and V of the Second Amended Complaint. See Pls.' Mot. at 1. Plaintiffs' motion also requests relief in the form of an award of costs and attorney's fees. See Pls.' Mem. at 8-10.

         On August 21, 2018, the State Police Union informed the Court that it had “reimbursed the individual Plaintiffs for the entirety of their individual monetary demands (dues/fees that had been withheld plus claimed interest)” and requested a status conference with the Court to discuss the pending motion. See Status Report, filed Aug. 21, 2018, ECF No. 165.

         On August 29, 2018, the Court held a telephonic status conference with the parties. During that call, Plaintiffs did not challenge the sufficiency of the reimbursements, but instead suggested other remaining injunctive relief rendered the case not moot. The Court, in turn, set a quick briefing schedule in hopes of speedily resolving the pending motion and the case as a whole.

         On August 30, 2018, the State Defendants filed their opposition to the motion for summary judgment, arguing that the Court should deny the motion and dismiss the case as moot because any relief available to Plaintiffs was rendered moot in light of (1) the holding of Janus; (2) the State Defendants' decision to cease collection of all fair share fees post-Janus; and (3) the State Police Union's reimbursement of all previously-withheld fair share fees, plus interest, to Plaintiffs. See State Defs.' Mem. at 2-4.

         That same day, the State Police Union also filed a memorandum of opposition, joining the State Defendants' mootness arguments and further arguing that no substantive decision on the motion for summary judgment was necessary, as mootness is a threshold issue. See Union Opp. at 1-3. The State Police Union also noted that because the collective bargaining agreement at issue expired on June 30, 2018, the challenge to the indemnification provision is now moot. Id. at 1. The State Police Union included images of the reimbursement checks it claims it sent to Plaintiffs with its opposition. See Check Images, annexed as Ex. A to Union Opp., ECF No. 171-1.

         On September 7, 2018, Plaintiffs filed a reply brief, disputing that the case is moot. See Plaintiffs' Memorandum in Reply to Defendants' Oppositions to Pls.' Mot., dated Sept. 7, 2018 (“Pls.' Reply Mem.”), ECF No. 175, at 1-2. Plaintiffs did not dispute that those checks were issued. They also do not directly dispute that the checks were for the proper amounts. In a footnote, they only state that there is some question as to “whether the refunds are properly calculated, ” but do not elaborate what that question is or their basis for that assertion. See Pls.' Reply Mem. at 1 n.1.

         The Court held oral argument on September 13, 2018. See Minute Entry, dated Sept. 13, 2018, ECF No. 179. At oral argument, Plaintiffs claimed that they had no idea how the State Police Union had calculated the fees it reimbursed Plaintiffs. The State Police Union, in turn, stated that the ...


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