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WE THE PEOPLE OF CONNECTICUT, INC., ET AL. v.

DANNEL P. MALLOY

(AC 35143)

Beach, Robinson and Sheldon, Js.*

Argued December 9, 2013—officially released May 27, 2014

(Appeal from Superior Court, judicial district of

Hartford, Graham, J.)

Deborah G. Stevenson, for the appellants (plaintiffs).

Jane R. Rosenberg, assistant attorney general, with

whom, on the brief, were George Jepsen, attorney general, Perry Zinn Rowthorn, deputy attorney general,

and Robert Deichert, assistant attorney general, for the

appellee (defendant).
Opinion

BEACH, J. The plaintiffs, We the People of Connecticut, Inc., Maria Nelson, Laurie Wojnarowski, Mary D.

Mathes, Angela Griffs, Jay Kiley, and Linda GaramelloFusco, appeal from the judgment of the trial court granting the motion to dismiss of the defendant, Governor

Dannel P. Malloy. We affirm the judgment of the trial

court.

The following relevant facts are undisputed. In

March, 2011, Senate Bill No. 1106, providing for a collective bargaining process for family child care providers,

was proposed in the General Assembly. In June, 2011,

the legislature adjourned without voting on the bill.

On September 21, 2011, the defendant issued Executive Order No. 9, which prescribed a process by which

a majority representative of family child care providers

who participate in the child care subsidy program under

General Statutes § 17b-749, was to be selected. It provided that the representative was to meet and confer

with representatives of the Department of Social Services and any other executive branch representatives

deemed appropriate by the defendant to discuss certain

designated topics; it further provided that a working

group was to be appointed by the defendant on or before

October 1, 2011, for the purpose of making recommendations regarding the structuring of collective bargaining rights for family child care providers. Not later

than February 1, 2012, the working group was to report

its findings to the defendant. On the same day, the

defendant also issued Executive Order No. 10, which

was similar to Executive Order No. 9, but pertained to

personal care attendants. It provided (1)forthe election

of a majority representative of personal care attendants,

(2) for the establishment of a working group on or

before October 1, 2011, for the purpose of determining

how best to structure collective bargaining rights for

personal care attendants, and (3) that the working

group report its findings to the defendant no later than

February 1, 2012.

Pursuant to the executive orders, the election for the

majority representative of family child care providers

concluded in December, 2011, and the election for the

majority representative of personal care assistants concluded in March, 2012. Both groups selected the Service

Employees International Union to be their majority representative. The final reports of the working groups for

family child care providers and personal care attendants

were issued on February 15, 2012.

In March, 2012, the plaintiffs instituted an action in

the Superior Court alleging that, by issuing Executive

Orders Nos. 9 and 10, the defendant exceeded his

authority and violated the principle of separation of

powers as provided in articles second, fourth and eleventh of the Connecticut constitution. The plaintiffs
claimed that they were specifically harmed by the issuance of the executive orders procedurally and substantively, by not being able to participate in the election

procedure, by being represented by an entity that was

elected in an illegal procedure, by not having the legislature make the law establishing the election procedure,

and by not having an orderly form of government based

on the separation of powers as established and guaranteed by the Connecticut constitution. In their prayer for

relief, the plaintiffs sought injunctive relief invalidating

Executive Orders Nos. 9 and 10.

In March, 2012, the defendant filed a motion to dismiss the plaintiffs’ complaint on the ground of mootness.1

In a memorandum oflaw in support of the motion,

the defendant argued that the complaint was moot

because of legislation then pending. The legislation then

pending was enacted two months later.

In May, 2012, the legislature enacted No. 12-33 of the

2012 Public Acts, effective July 1, 2012.2 Public Act 12-

33 provided that ‘‘family child care providers,’’ defined

in the act to be persons who provide child care services

pursuant to § 17b-749, were to have the right to bargain

collectively. The act prescribed a collective bargaining

process. Public Acts 2012, No. 12-33, § 2. It further provided that the Commissioner of Social Services was to

compile a list of names of family child care providers

who participated in the § 17b-749 subsidy program on

or after July 1, 2012, and the list was to be updated on

a monthly basis. Public Acts 2012, No. 12-33, § 2 (c).

Public Act 12-33, § 2 (g) provided: ‘‘Any provider organization certified as the majority representative of family

child care providers in any election held prior to the

effective date of this section pursuant to Executive

Order Number 9 of Governor Dannel P. Malloy may

provide proof of such certification to the State Board of

Labor Relations and the State Board of Labor Relations

shall certify such majority representative as the exclusive bargaining agent for such providers without the

requirement of an additional election unless and until

such time as a question concerning representation is

appropriately raised under this section and section 1

of this act.’’

Public Act 12-33, § 6 provided that personal care

attendants also were to have the right to bargain collectively, and it prescribed a similar collective bargaining

process. It established a personal care attendant workforce council to ‘‘ensure the quality of . . . care.’’ Public Acts 2012, No. 12-33, § 5 (a). It provided that the

workforce council was to compile a list of names of

personal care attendants no later than October 1, 2012,

to be revised monthly thereafter. Public Acts 2012, No.

12-33, § 5 (f) (1). Public Act 12-33, § 6 (f) provided: ‘‘Any

organization certified as the majority representative of

personal care attendants in any election held prior to

the effective date of this section pursuant to Executive
Order Number 10 of Governor Dannel P. Malloy, may

provide proof of such certification to the State Board of

Labor Relations and the State Board of Labor Relations

shall certify such majority representative as the exclusive bargaining agent for such personal care attendants

without the requirement of an additional election unless

and until such time as a question concerning representation is appropriately raised under this section and section 2 of this act.’’

The court issued a memorandum of decision in October, 2012, granting the defendant’s motion to dismiss.

The court held that the issue was moot because the

public act replaced the executive orders and that no

practical relief could be given to the plaintiffs with

respect to the executive orders. This appeal followed.

‘‘Mootness . . . implicates subject matter jurisdiction, which imposes a duty on the [trial] court to dismiss

a case if the court can no longer grant practical relief

to the parties.’’(Internal quotation marks omitted.) Curley v. Kaiser, 112 Conn. App. 213, 229, 962 A.2d 167

(2009). ‘‘Mootness presents a circumstance wherein the

issue before the court has been resolved or had lost its

significance because of a change in the condition of

affairs between the parties.’’ (Internal quotation marks

omitted.) State v. Begley, 122 Conn. App. 546, 550–51,

2 A.3d 1 (2010). ‘‘A case becomes moot when due to

intervening circumstances a controversy between the

parties no longer exists.’’ (Internal quotation marks

omitted.) Waterbury Hospital v. Connecticut Health

Care Associates, 186 Conn. 247, 252, 440 A.2d 310

(1982).

The plaintiffs claim that the issues raised in their

complaint were not moot, but rather that the executive

orders have had a continuing legal effect and exist side

by side with Public Act 12-33.3 They contend that the

public act itself demonstrates that the procedures for

electing majority representatives of family child care

providers and personal care attendants, respectively,

have an ongoing legal effect because the public act

provides that the victors of election procedures conducted pursuant to the executive orders were to continue to act as exclusive bargaining agents for their

respective groups until such time as new elections

should be held.

There is no practical relief that can be given to the

plaintiffs. Executive Orders Nos. 9 and 10 provided,

respectively, for elections of majority representatives

of family child care providers and personal care attendants. The executive orders also provided for the establishment of working groups that were to report findings

regarding collective bargaining to the governor no later

than February 1, 2012. The legislature passed Public

Act 12-33, which, for purposes of the claims raised in

the present case, entirely replaced Executive Orders

Nos. 9 and 10. The act established collective bargaining
for the two groups at issue and further provided that

the majority representatives of family child care providers and personal care attendants, as elected in Executive Orders Nos. 9 and 10, respectively, were to act as

the exclusive bargaining agents without the need for

new elections. Even if the executive orders were

rescinded, Public Act 12-33 would still be in place. Any

challenge would now appropriately be addressed, if at

all, to the legislation. The requested remedy, in this

case, then would have no practical effect.4

The plaintiffs argue in the alternative that their claims

fall underthe ‘‘capable ofrepetition yet evading review’’

exception to the mootness doctrine. To qualify under

this exception, an otherwise moot question must satisfy

the following three requirements: ‘‘First, the challenged

action, or the effect of the challenged action, by its very

nature, must be of a limited duration so that there is a

strong likelihood that the substantial majority of cases

raising a question about its validity will become moot

before appellate litigation can be concluded. Second,

there must be a reasonable likelihood that the question

presented in the pending case will arise again in the

future, and that it will affect either the same complaining party or a reasonably identifiable group for whom

that party can be said to act as surrogate. Third, the

question must have some public importance. Unless all

three requirements are met, the appeal must be dismissed as moot.’’(Internal quotation marks omitted.)In

re Priscilla A., 122 Conn. App. 832, 836, 2 A.3d 24 (2010).

The plaintiffs’ claim is of public importance, but the

plaintiffs have not demonstrated that the effect of the

executive orders, by their very nature, is of such limited

duration that there is a strong likelihood that the substantial majority of cases raising a question about the

validity of similar orders will become moot before litigation has concluded. We have no information before us

to lead us to conclude that most executive orders are

of inherently short duration. The plaintiffs contend that

in this case, the defendant, aware of the judicial challenge to the executive orders, hastened the ratifying

legislation through the General Assembly, and that any

executive order could escape judicial review by a similar process. Both the premise and the conclusion of the

argument are purely speculative. Finally, there has been

no demonstration that the question presented in this

case will arise again and will affect the same persons

or any similar group.

The judgment is affirmed.

In this opinion the other judges concurred.

* The listing of judges reflects their seniority status on this court as of

the date of oral argument.

1 The motion to dismiss also alleged lack of standing and sovereign immunity. The trial court did not reach these grounds, nor do we.

2 Public Act 12-33 is now codified as General Statutes § 17b-705 et seq.

3 The plaintiffs also argue that the trial court ignored the appropriate

standard of review for a motion to dismiss when it failed to analyze whether

their complaint stated a cause of action and instead determined that their
claim was moot. The court did not apply an incorrect standard. A motion

to dismiss properly attacks the jurisdiction of the court; Hayes Family Ltd.

Partnership v. Glastonbury, 132 Conn. App. 218, 221, 31 A.3d 429 (2011);

and mootness implicates a court’s subject matter jurisdiction. Sweeney v.

Sweeney, 271 Conn. 193, 201, 856 A.2d 997 (2004).

4 The plaintiffs also argue that Public Act 12-33 is unconstitutional. We

cannot review this claim. Our review of the complaint reveals that it cannot

reasonably be construed to include a challenge to the constitutional validity

of Public Act 12-33. See Young v. Vlahos, 103 Conn. App. 470, 476, 929 A.2d

362 (2007) (interpretation of pleadings question of law subject to plenary

review), cert. denied, 285 Conn. 913, 943 A.2d 474 (2008). The trial court

did not consider or rule on the validity of Public Act 12-33.