Rowland to press SCOTUS appeal dropped by Jepsen

Breaking with Attorney General George Jepsen and the Malloy administration, former Gov. John G. Rowland will pursue an appeal to the U.S. Supreme Court of a lower court’s ruling that the Rowland administration acted illegally to punish union members in 2003 with layoffs, his lawyer said Thursday.

“Gov. Rowland and Marc Ryan have instructed us to proceed with the appeal in the United States Supreme Court,” said Daniel J. Klau, one of the private attorneys retained by Jepsen’s predecessor, Richard Blumenthal, to defend the state, the former governor and Ryan, who oversaw labor issues as Rowland’s secretary of policy and management.

Jepsen announced Monday he would withdraw his U.S. Supreme Court appeal and accept an invitation by a coalition of state employee unions to open settlement talks. Gov. Dannel P. Malloy concurred with Jepsen’s decision.

The state will continue to pay Rowland’s legal bills, a decision questioned by the attorney for the unions, David S. Golub.

“Rowland has no business not following whatever the state does here. He’s not the policy maker for the state any more, and he’s got no financial exposure here. The state agreed in writng to indemnify him,” Golub said. “Rowland obviously has his own agenda here. But he’s got no business trying to set policy for the state of Connecticut. And he’s wasted millions of dollars of taxpayer money in attorneys’ fees.”

Klau said Golub was wrong: Rowland and Ryan still could be personally liable if the unions seek punitive damages; and most of the attorneys’ fees have gone to defend the state, not Rowland and Ryan.

“This is not about setting policy for the state. This is about protecting their own interests,” Klau said.

Jepsen said he saw the former governor’s petition, which was a longshot even when Rowland was moving in lockstep with the state, as significantly weakened without the state’s participation.

“I think it is less likely that the court will take it up without the state’s petition,” Jepsen said.

Golub made the same point more forcefully and colorfully: “I don’t usually make predictions, but on this one, there’s not a snowball’s chance in hell that the Supreme Court will take cert on Rowland’s petition.”

Klau disagreed, saying that Rowland’s petition asserts that the lower court improperly made motive an issue in contradiction to previous U.S. Supreme Court precedents. No governor has been previously judged on motive, making this a case of first impression, he said.

“We believe our petition, even without the state’s petition, has substantial merit,” Klau said.

A three-judge panel of the U.S. Court of Appeals for the 2nd Circuit issued a unanimous ruling in May concluding that Rowland’s layoffs illegally targeted members of unions that defied his call for concessions. Jepsen initially concluded that the decision was a threat to management rights and petitioned the Supreme Court to review the case.

Rowland’s position is that he made the layoffs in accordance with procedures outlined in collective bargaining agreements. The unions never challenged the layoffs using standard remedies such as a grievance or a complaint to the state labor board.

“He did what the contract expressly authorized him to do,” Klau said.

Jepsen said Monday he can can file a new petition to the Supreme Court if negotiations fail, though he would have to wait until damages are set by the trial court. The attorney general said his decision was prompted by a proposal last week from the state employee unions to suspend the appeal and open negotiations.

“We’re not losing any options at all,” Jepsen said. “We are trying to negotiate a settlement at the time of maximum leverage.”

The unions now must file a response to Rowland’s petition, which was filed in October on the same day as Jepsen’s, by Dec. 20. Rowland then will file a reply brief. Klau said he expects the Supreme Court to announce in late January or early February whether it will hear the case.