United States District Court, D. Connecticut
MARC LAMBERTY, JOSEPH MERCER, CARSON KONOW, and COLLIN KONOW, Plaintiffs,
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
A. BOLDEN, UNITED STATES DISTRICT JUDGE.
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,  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.
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).
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
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.
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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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).
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.
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).
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),
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),
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,
Singer, Jepsen Outlines Connecticut's Compliance With
Supreme Court's Union Fees Ruling, Hartford Courant
(Aug. 9, 2018),
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.
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.
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.
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.
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.
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.
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