Builders Connecticut Associated Builders & Contractors v. Anson

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MCDONALD, J.,

dissenting. I join in Justice Berdon’s dissent.

The majority today concludes that the plaintiffs have no standing to question the constitutionality of a clause in a public construction contract that contains a project labor agreement1 requiring any employees on the construction project to be members of a union. The plaintiffs are the Connecticut chapter of a trade association *217of contractors and subcontractors, two Connecticut subcontractors that are members of the association and an employee of one of those subcontractors, all of whom were capable of engaging in the construction project and ready to do so save for the project labor agreement requirement. The plaintiffs claim to oppose union involvement in labor management relations. They oppose collecting money from nonunion workers to support causes to which the plaintiffs and those workers object, and they view the project labor agreement as forcing such involvement in violation of their federal constitutional right to freedom of association. I would hold that each plaintiff has standing to enter the courtroom and present those claims.

According to the majority, the plaintiffs do not have standing because they have failed to allege a violation of the Connecticut competitive bidding statute. That statute is irrelevant, in my view, to the issue of standing to present this claim of constitutional violation for adjudication. To have standing to sue, a plaintiff must have “such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the *218court so largely depends for illumination of difficult constitutional questions . . . Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962); see also Gollust v. Mendell, 501 U.S. 115, 125, 111 S. Ct. 2173, 115 L. Ed. 2d 109 (1991); Franchise Tax Board of California v. Alcan Aluminum Ltd., 493 U.S. 331, 335, 110 S. Ct. 661, 107 L. Ed. 2d 696 (1990); Los Angeles v. Lyons, 461 U.S. 95, 101, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983). This court has stated that “[s] tan ding is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented. . . . These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity. Such a personal stake in the outcome of the controversy . . . provides the requisite assurance of concrete adverseness and diligent advocacy.” (Citations omitted; internal quotation marks omitted.) Unisys Corp. v. Dept. of Labor, 220 Conn. 689, 693, 600 A.2d 1019 (1991). The plaintiffs here have demonstrated such a personal stake that would assure concrete adverseness in advocating the issues arising under the merits of their claim.

In Northeastern Florida Chapter of the Associated General Contractors of America v. Jacksonville, 508 U.S. 656, 666, 113 S. Ct. 2297, 124 L. Ed. 2d 586 (1993), the United States Supreme Court stated, “[t]o establish standing ... a party challenging a set-aside program2 like Jacksonville’s need only demonstrate that it is able *219and ready to bid on contracts and that a discriminatory policy prevents it from doing so on an equal basis.” The court later characterized its holding in that case to be that “a denial of a benefit in the bargaining process can itself create an Article III injury [one justiciable in federal court], irrespective of the end result.” Clinton v. New York, 524 U.S. 417, 433 n.22, 118 S. Ct. 2091, 141 L. Ed. 2d 393 (1998).

While the present case does not present an equal protection claim, the principles underlying the standing analysis in the equal protection cases are applicable to the plaintiffs’ freedom of association claim. The contractor members of the association allege, as do the subcontractors and employees, that the state, through the project labor agreement, is forcing an unwanted association upon them by requiring 90 percent of the employees on the project to be union members in violation of the first amendment to the United States constitution. “[A]t the heart of the First Amendment is the notion that an individual should be free to believe as he will, and that in a free society one’s beliefs should be shaped by his mind and his conscience rather than coerced by the State.” Abood v. Board of Education, 431 U.S. 209, 234-35, 97 S. Ct. 1782, 52 L. Ed. 2d 261 (1977). The alleged “injury in fact” here is a violation of the plaintiffs’ free association rights resulting from the imposition of the project labor agreement requirement in the bidding process. The plaintiffs have demonstrated that they are able and ready to bid on the project, and they claim that the unconstitutional requirements of the project labor agreement prevent them from doing so. I can think of no other parties that would be better suited to challenge the constitutionality of these requirements than these plaintiffs. I therefore conclude that the plaintiffs have established standing to pursue their freedom of association claim. I, of course, do not reach the merits of the plaintiffs’ claims as set out in *220their complaint, but would leave that to the trial court, after the plaintiffs have had their day in that court.

Accordingly, I respectfully dissent.

The project labor agreement subjects all contractors to, inter alia, the terms of collective bargaining agreements, regardless of whether they have previously been parties to those agreements. The project labor agreement *217provides in relevant part: “Article III. Union Recognition and Employment. Section 1. The Contractor recognizes the Union as the sole and exclusive bargaining representative of all craft employees working on facilities within the scope of this Agreement. Section 2. Applicants for various classifications covered by the Agreement required by the Contractor on the Project shall be referred to the Contractor by the Local Union. The Contractor may bring ten percent (10%) of his workforce to the Project without utilizing the Local Union referral procedures. The Contractor shall have the right to determine the competency of all employees, the right to determine the number of employees required, and shall have the sole responsibility for selecting the employees to be laid off consistent with Article IV, Section 3, below and the attached Schedule A’s. The Contractor shall also have the right to reject any applicant referred by the Local Union, subject to the show-up payments required in the applicable Schedule A. . . . Section 4. All employees covered by this Agreement shall be subject to the union security provisions contained in the applicable Schedule A. . .

The Jacksonville ordinance in question required that a certain percentage of the amount of money spent on city contracts each year be set aside for “minority business enterprises.”