Opinion
No. FST CV 10 6005682
August 30, 2010
CORRECTED MEMORANDUM OF DECISION
Correction to statutory citation on page 7.
I. Background
James Caterbone is a resident in the 147th Assembly District for the Connecticut House of Representatives. The District is comprised of a part of New Canaan and a part of Stamford. On May 11, 2010 the Republican Party held a convention to nominate a candidate for election as State Representative from that District, and Caterbone was nominated. A Certificate of the Republican Party endorsement was signed by Caterbone and the convention chairman, Ralph Loglisci. Exhibit (Ex.) 1.
References to Exhibit or Ex., without more, are to exhibits entered into evidence at the hearing of this motion on August 23, 2010.
In June 2010 Caterbone received a letter from Susan Bysiewicz, Connecticut Secretary of the State, dated June 17, 2010, saying that the Certificate of Party Endorsement was received by her office on June 2, 2010; that the Certificate was not received in a timely fashion pursuant to General Statutes § 9-388 which required receipt by May 25, 2010, and that Caterbone's name therefore could not be placed on the ballot for the November 2, 2010 general election as the Republican candidate for State Representative from the 147th Assembly District. Ex. 6.
In early July Caterbone commenced an action seeking a writ of mandamus to be issued by this court ordering the Secretary of the State to place his name on the ballot. Subsequently, by an amended complaint, Caterbone seeks the additional, although similar, remedy of a temporary injunction ordering the Secretary of the State to place his name on the November 2 ballot. In mid-July the Stamford Democratic City Committee (Democratic Committee) moved to intervene in this action as a defendant, and intervenor status was granted on August 2, 2010. The Democratic Committee has moved both to dismiss the amended complaint for lack of standing (Dkt. Entry 109.00) and to strike the amended complaint on the grounds of lack of standing and failure to state a claim on which relief may be granted. (Dkt. Entry 111.00.) On August 19, 2010 the Secretary of the State filed an answer to the amended complaint.
The application for a writ of mandamus and the motions to dismiss and strike appeared for a hearing on the August 23, 2010 special proceedings calendar. At that time the parties agreed the court could hear evidence and argument on the mandamus application and argument on the motions, and determine any or all of the above. The court was advised that a decision was much desired by September 15, 2010. While no separate application for injunctive relief was filed, the court and the parties understood that the temporary injunction application would be considered as well.
II. The Statute
General Statutes § 9-388, relied on by the Secretary of the State, states as follows in pertinent part:
Report to Secretary of the State. Whenever a convention of a political party is held for the endorsement of candidates for nomination to state or district office, each candidate endorsed at such convention shall file with the Secretary of the State a certificate, signed by him, stating that he was endorsed by such convention, his name as he authorizes it to appear on the ballot, his full residence address and the title and district, if applicable, of the office for which he was endorsed. Such certificate shall be attested by either (1) the chairman or presiding officer, or (2) the secretary of such convention and shall be received by the Secretary of the State not later than four o'clock p.m. on the fourteenth day after the close of such convention. Such certificate shall either be mailed to the Secretary of the State by certified mail, return receipt requested, or delivered in person, in which case a receipt indicting the date and time of delivery shall be provided by the Secretary of the State to the person making delivery. If a certificate of a party's endorsement for a particular state or district office is not received by the Secretary of the State by such time, such certificate shall be invalid and such party, for purposes of section 9-416 and section 9-416a shall be deemed to have made no endorsement of any candidate for such office.
The above language includes an amendment by the General Assembly in 2006 ( P.A. 06-137) that a certificate not received within fourteen days of the nominating convention "shall be invalid" and if a certificate was delivered by mail, "certified mail, return receipt requested" was required.
III. Requirements for the Issuance of a Writ of Mandamus and/or a Temporary Injunction
A. Mandamus. The Connecticut Supreme Court has pointed out that mandamus is "an extraordinary remedy, available in limited circumstances for limited purposes . . . The writ is proper only when (1) the law imposes on a party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy." Miles v. Foley, 253 Conn. 381, 391 (2000). "Even satisfaction of this demanding [three-pronged] test does not, however, automatically compel issuance of the required writ of mandamus." Avalon Bay Communities, Inc. v. Sewer Commission, 270 Conn. 409, 417 (2001)." Mandamus does not give nor define rights which one does not already have." Hennessey v. Bridgeport, 213 Conn. 656, 659 (1990).
B. Temporary Injunction. To be entitled to the equitable relief of a temporary injunction, the moving party must show that: (1) it is likely to prevail on the merits of its claim after trial; (2) it faces immediate and irreparable harm absent an injunction; and, (3) the harm it faces without the injunction is greater than the harm an injunction would do to the defendants. Griffin Hospital v. Commission on Hospitals Health Care, 196 Conn. 451, 456-58; see generally Fleet National Bank v. Burke, 45 Conn.Sup. 566, 570 (1998) [ 28 Conn. L. Rptr. 516]; Pop Radio v. News-America Marketing In-Store, Inc., 49 Conn.Sup., 566-69 (2005) [ 40 Conn. L. Rptr. 332]; General Reinsurance v. Arch Capital, Superior Court, judicial district of Stamford-Norwalk at Stamford, Complex Litigation Docket, X05 CV 074011668 (October 17, 2007, Adams, J.) [ 44 Conn. L. Rptr. 366].
IV. Additional Facts
The additional facts necessary to resolve the pending issues are relatively straight forward. Following the May 11 convention Ralph Loglisci gave the completed Certificate respecting Caterbone's nomination to his wife who mailed them from her office as Stamford Town Clerk to the Secretary of the State's office on May 21, 2010. Donna Loglisci test; Ralph Loglisci test; see Ex. 2 (containing notation of mailing.) Mrs. Loglisci testified she placed the Certificate for the 147th District in an envelope with Secretary's Election Division address and zip code thereon. She also testified the Certificate was not mailed certified mail and no return receipt was requested. Mrs. Loglisci also testified she sent a Certificate of Republican Endorsement for the 27th State Senate District to the Secretary of the State's office in the same fashion, also on May 21, 2010. The evidence also shows that the Secretary of the State's office received the Certificate of endorsement for Caterbone on June 2, 2010. See Ex. B attached to Secretary of the State's Trial Brief (Dkt. Entry 118.00).
According to the Secretary, a Certificate for Endorsement for the 27th Senate District was received in her office on May 17, 2010. The one sent by Mrs. Loglisci (with the Stamford Town Clerk's stamp on it) was received on the same day as Caterbone's Certificate — June 2, 2010.
V. Discussion
The plaintiff contends that he is the duly nominated candidate of the Republican party for the 147th Assembly District, and it is inequitable to deny him the opportunity to run as the party's candidate. He further contends that it is a ministerial and non-discretionary act by the defendant Secretary to place his name on the ballot. Similarly it is contended the court should issue injunctive relief to remedy the injustice of the Republican party having no candidate for the 147th District in the 2010 election.
The plaintiff points to four Superior Court decisions as support for his position. Three of these cases were decided prior to the amendment of Section 9-388 by P.A. 06-137: Ocif v. Tashjian, Superior Court, judicial district of Litchfield, D.N. 0053848 (August 8, 1990, Dranginis, J.) [ 2 Conn. L. Rptr. 191]; Gasparino v. Bysiewicz, judicial district of Hartford, CV 04 4002077 (September 13, 2004, Beach, J.) [ 37 Conn. L. Rptr. 879]; Kapi v. Bysiewicz, Superior Court, judicial district of Hartford, CV 06 4023881 (July 25, 2006, Berger, J.) [ 41 Conn. L. Rptr. 703]. The fourth case, Corcoran v. Bysciewiz, Superior Court, judicial district of Hartford, CV 08 4038492 (August 29, 2008 Dubay, J.) [ 46 Conn. L. Rptr. 300], construed Section 9-388 as amended by P.A. 06-137. These cases will be discussed shortly.
The defendant Democratic Committee, as noted, contends that Caterbone lacks standing to pursue this case because he has no real interest in campaigning as the Republican nominee in the 147th District; because he actually resigned his nomination in June 2010 when he felt threatened by a letter from the State Elections Enforcement Commission, and because he was merely acting as a "place holder" for another Republican candidate. There was some testimony and exhibits to support these contentions (Exs. 3-5), but the court finds the evidence not sufficient to establish that Caterbone is a faux candidate and is not interested in being elected as the Republican state representative from the 147th District. While Caterbone's testimony was inconsistent as to his desire to run and campaign this autumn, it has not been proven that his nomination on May 11, 2010 and his acceptance thereof was a sham, and therefore he has an individual interest to be advanced, and the potential of actual injury. The motion to dismiss for lack of standing is denied.
Both defendants — the Secretary of State, and the Democratic Committee — argue that Caterbone does not meet the recognized standards for the issuance of a writ of mandamus, and that an injunction is not appropriate. They claim that under the statutory language of Section 9-388, the constitutionality of which is unchallenged, the Certificate of Endorsement was not timely filed Additionally, they argue that the Superior Court cases relied on by Caterbone are inapposite or not controlling.
The court now turns to those cases. In general, this court concludes that the cases decided before the P.A. 96-137 amendment have been effectively overruled by the statutory changes enacted by the legislature. In written testimony before the Government Administration and Elections Committee of the General Assembly, on February 14, 2006, the defendant Bysiewicz stated that the language which was subsequently inserted into P.A. 06-137 was necessitated by certain judicial decisions and designed to reemphasize that a Certificate of endorsement not filed timely had a fatal defect, and was invalid. Secretary of the State's Trial Brief, Ex. G. To this court the language of Section 9-388, as amended, is plain and unambiguous as to its meaning, and the intent of the legislature was to make late filed certificates "invalid" or ineffective. General Statutes § 1-2z. To the extent the cases decided before P.A. 06-137 hold otherwise they are incompatible with the new language. In Ocif v. Tashjian, supra, it was held that the failure to file a timely Certificate was only a rebuttable presumption that there was not an endorsed candidate, and that in light of evidence in the record to rebut this presumption, the Secretary could be enjoined to certify the plaintiff as an endorsed candidate. The amended language that an untimely certificate is "invalid" makes that holding obsolete.
In Gasparino v. Bysiewicz, supra, the court was faced with a complicated situation involving two nominating conventions. Its ruling only indirectly implicated Section 9-388 and did not touch on the issue presented here. In short, the court found that, given the constitutional implications, the language of Sections 9-383 and 9-388 were not clear enough to justify keeping the plaintiff off the ballot. Indeed, the court in Gasparino found that the plaintiff had filed his certificate in a timely fashion. To the limited extent that Gasparino supports the plaintiff's position, the amendatory language or P.A. 06-137 has clarified the statute's intent and purpose sufficiently to make the case inapposite to today's situation. In Kapi v. Bysiewicz, supra, the Superior Court relied on Gasparino and an Attorney General's opinion to the effect that since P.A. 06-137 would not go into effect until January 1, 2007, late filed certificates would not be deemed invalid until that date. In that significant respect Kapi supports the defendants' position that under the present law, Caterbone's application should be denied.
Finally, in Corcoran v. Bysiewiz, Superior Court, judicial district of Hartford, CV 08 4038492 (August 29, 2008, Dubay, J.) a Superior Court dealt with a situation very similar to this case and since it arose only two years ago, the court was faced with the same amended Section 9-388 as presently exists. In Corcoran the plaintiff's certificate was filed late through an apparent miscalculation of the number of days between May 22, 2008 and June 5, 2008. The certificate was filed on June 6, 2008, one day late. The court ordered injunctive relief, putting Corcoran on the ballot. In determining whether it should order such relief the court relied on Gasparino, Kapi and Flanagan v. Hynes, 75 Conn. 584 (1903). The court found the dispositive question to be not whether the Secretary could exercise discretion to accept a late filing, but whether Section 9-388 restrains a Superior Court from granting injunctive relief to the plaintiff. The Corcoran court held that the law did not limit a court's power to order the Secretary to place Corcoran's name on the ballot.
Having considered all of the above regarding Section 9-388 and its interpretation, and having reviewed all the facts presented by the parties, the court concludes the plaintiff is not entitled to a writ of mandamus. There is no duty imposed by law on the Secretary of the State requiring her to place Caterbone's name on the ballot as the Republican candidate for State Representative from the 147th District, nor does Caterbone have any clear right to that designation. Indeed, the law, as recognized by the Corcoran court, leaves the Secretary with no discretion to place his name on the ballot. The court notes, in addition, that not one of the cases cited by the plaintiff, including those decided before the amendment in 2006, granted a wit of mandamus. Therefore, the relief requested by mandamus is not available, and the plaintiff's application must be denied.
The court also concludes that a temporary injunction should not issue, because the plaintiff has not established a likelihood of success on the merits of his case. Like the other courts which have considered cases of this nature, this court is very much aware that our democracy depends mightily on the presence of voluntary public participation, appropriate encouragement of those who choose to run for public office, and choices available to the electorate between qualified candidates. In Flanagan v. Hynes, supra, Connecticut Supreme Court authority cited by several of the cases discussed above interpreting Section 9-388, the court properly warned that election laws and regulations which might have the effect of eliminating a person from the ballot should be carefully construed and interpreted by courts to have such an effect only when the legislature "has expressed that requirement in unmistakable language." Id., 588.
While a court must be reluctant to uphold striking a candidate's name from the ballot, in this case, the court finds that Section 9-388 as amended by P.A. 06-137 makes clear that a Certificate of Endorsement that is not filed with the Secretary of the State's office with fourteen days of the convention, endorsement is not a valid endorsement, and no authority exists to place Caterbone on the ballot as the Republican endorsed nominee. By adding the language that a late filed certificate "shall be invalid" at the behest of the Secretary of the State who sought to emphasize the law's intent that such a certificate was a fatal defect in face of several court opinions to the contrary, this court determines that the legislature used "unmistakable language." This conclusion is supported by the simultaneous addition of language instructing that a nominee should file the certificate by certified mail to reduce controversies about when the certificate was actually received.
In making this determination, the court recognizes it is at odds with the Corcoran decision. However, Corcoran is not persuasive to this court for several reasons. First, there was no finding in Corcoran that the plaintiff was likely to succeed on the merits, even though such a finding is a requirement for the issuance of a temporary injunction. No such finding of likelihood of success can be made in this case based on the clear language of the statute. That language provides no basis for the plaintiff to obtain the relief of being placed on the ballot as the Republican nominee because the Certificate of Endorsement is invalid. Second, the court disagrees with Corcoran's analysis that while Section 9-388, as amended limits the Secretary's discretion to place a late filing nominee on the ballot, it does not limit the power of a Superior Court to effect that result. This analysis would appear to give a Superior Court unfettered authority to ignore the plain language of the statute and the General Assembly's clear intent to restrict the ability of a late filing nominee to get on the ballot. Such authority improperly enhances the weight of the judiciary over the legislature in the careful balancing of power between governmental branches established by our constitutional form of government.
IV. Conclusion
For the reasons stated herein, the applications for a writ of mandamus and a temporary injunction are denied.
CT Page 17139