Opinion
No. CV 106013618 S
August 27, 2010
MEMORANDUM OF DECISION
PROCEDURAL HISTORY
The plaintiff, Probate Judge John W. Butts, filed this action seeking temporary and permanent injunctive relief and a writ of mandamus against the defendant, Susan Bysiewicz, in her capacity as the secretary of state. The action seeks an order compelling the defendant to place the plaintiff on the ballot as the endorsed Democratic candidate for judge of probate for the 32nd probate district. The court finds the following facts based on the stipulation of the parties, an undisputed affidavit, and the reasonable inferences to be drawn from the stipulated facts.
At a convention held on May 11, 2010, the plaintiff was unanimously endorsed as the Democratic Party candidate for judge of probate for the 32nd probate district in the general election to be held on November 2, 2010. Thereafter, the plaintiff signed a certificate of endorsement, as required by statute. On May 15, 2010, the secretary for the convention, Cyril Longton, mailed the certificate to the defendant through regular first class postal mail. Longton provided a return address on the envelope. Pursuant to General Statutes § 9-388, that certificate must have been received by the defendant on or before May 25, 2010 in order to have been timely received.
On July 5, 2010, the plaintiff learned that he was not on the ballot because the defendant had not received his certificate of endorsement. At the plaintiff's request, the defendant's office searched for it. On July 7, 2010, the defendant informed the plaintiff that his name would not be placed on the ballot because she had no record of receiving his certificate of endorsement. In response, the plaintiff delivered a copy of the certificate to the defendant on August 11, 2010. Consequently, the certificate was filed seventy-eight days late. To date, the original certificate has not been returned by the postal office as undeliverable.
The plaintiff filed this action on August 13, 2010. He seeks an injunction requiring the defendant to place him on the ballot as the endorsed Democratic candidate for the election to be held on November 2, 2010. Both parties were heard at a hearing held on August 25, 2010. By order of the court, Graham, J., the endorsed Republican candidate for probate judge of the 32nd probate district was given notice of the action and the hearing date but has not appeared. At the hearing, the parties both agreed that this hearing would constitute the trial on the plaintiff's claim for a temporary and a permanent injunction.
DISCUSSION
Ordinarily, the court would issue a memorandum of decision with a more comprehensive analysis of the legal issues presented. However, counsel for the defendant represented to the court that a speedy resolution of this matter is necessary because she must send to the printer by September 15, 2010, the ballot in its final form so that absentee ballots may be printed and used by electors in the time period required by law. Therefore, the court has expedited the release of this opinion in order to ensure that the plaintiff can seek appellate review prior to the election deadlines.
To prevail on an application for a permanent injunction, the movant must show (1) lack of an adequate remedy at law; (2) success on the merits; (3) irreparable injury; and (4) that a balancing of the equities favors granting the injunction. Waterbury Teachers Assn. v. Freedom of Information Commission, 230 Conn. 441, 446, 645 A.2d 978 (1994). See also Rhode Island Hospital Trust National Bank v. Trust, 25 Conn.App. 28, 39, 592 A.2d 417 cert. granted in part, 220 Conn. 904, 593 A.2d 970 (1991).
The plaintiff's entitlement to an order requiring the defendant to place him on the ballot is governed by General Statutes § 9-388, which provides in relevant part: "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 [s]ecretary of the [s]tate a certificate . . . stating that he was endorsed by such convention . . . Such certificate shall . . . be received by the [s]ecretary of the [s]tate 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 [s]ecretary of the [s]tate by certified mail, return receipt requested, or delivered in person, in which case a receipt indicating the date and time of delivery shall be provided by the [s]ecretary of the [s]tate 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 [s]ecretary of the [s]tate by such time, such certificate shall be invalid and such party . . . shall be deemed to have made no endorsement of any candidate for such office."
"When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation." (Internal quotation marks omitted.) Fairchild Heights, Inc. v. Amaro, 293 Conn. 1, 8-9, 976 A.2d 668 (2009).
Pursuant to the plain language of the statute, the plaintiff's certificate of endorsement is invalid in this case because there is no evidence that it was received within fourteen days of the convention. Despite the language of the statute making his certificate invalid, the plaintiff asserts that he is entitled to injunctive relief because there is no dispute that he was, in fact, endorsed by the Democratic Party as the candidate for probate judge. Furthermore, he argues that a properly executed certificate of endorsement was mailed to the defendant's office prior to the statutory deadline and the court should, therefore, presume that the defendant did in fact receive the certificate in a timely manner. In so arguing, the plaintiff relies on established law that generally recognizes that a letter or notice that has been mailed is presumed to have been received in due course. Moreover, the plaintiff argues that the defendant's refusal to place his name on the ballot will impermissibly disenfranchise voters of the 32nd probate district because they will be unable to vote for someone who would otherwise be the Democratic Party endorsed candidate.
In support of his claim that this court may order the defendant to place his name on the ballot despite his failure to comply with the statutory deadline, he points to a line of Superior Court cases in which courts have granted injunctive relief to candidates in similar circumstances. See, e.g., Ocif v. Tashjian, Superior Court, judicial district of Litchfield, Docket No. 0053848 (August 8, 1990, Dranginis, J.) ( 2 Conn. L. Rptr. 191, 192) (language in § 9-388 stating "shall be deemed to have made no endorsement" only creates a rebuttable presumption that candidacy is not effective); Gasparino v. Bysiewicz, Superior Court, judicial district of Hartford, Docket No. CV 04 4002077 (September 13, 2004, Beach, J.) ( 37 Conn. L. Rptr. 879, 880) (equity outweighs strict compliance with § 9-388) and Kapi v. Bysiewicz, Superior Court, judicial district of Hartford, Docket No. CV 06 4023881 (July 26, 2006, Berger, J.) ( 41 Conn. L. Rptr. 703, 704) (abundant evidence can rebut presumption that party did not make endorsement if certificate is filed late).
The defendant replies, and this court agrees, that the plaintiff is not entitled to an injunction because § 9-388 was specifically amended in 2006 to ensure that that the failure to comply with the statutory deadline invalidates the endorsement of the nominated candidate. The previous version of the statute, General Statutes (Rev. 2006) § 9-388 provided that each endorsed candidate was required to file the certificate of endorsement within fourteen days of the convention. The statute further provided that if the certificate was not received by the defendant's office, the political party "shall be deemed to have made no endorsement of any candidate for such office . . ."
Some judges of the Superior Court, properly concerned about disenfranchising voters, were reluctant to reject the candidate's endorsements absent allegations of fraud or bad faith. As a result, they held that the words "shall be deemed" only created a rebuttable presumption that the candidate was not endorsed if the certificate was not timely received. Thus, these cases concluded that in some instances, the defendant had discretion to accept late-filed endorsements and ordered the defendant to place the candidate on the ballot.
These decisions have been effectively overruled because § 9-388 was subsequently amended in 2006 in two significant ways. First, Public Acts 2006, No. 06-137, § 2 specifically added the provision that the "certificate shall be invalid" if it is not received within the fourteen-day period. As the plaintiff points out, this language dictates that late certificates have no legal effect. Indeed, the term "shall" leaves no room for discretion. Furthermore, Public Act 06-137 added the requirement that "[s]uch certificate shall either be mailed to the [s]ecretary of [s]tate by certified mail, return receipt requested, or delivered in person, in which case a receipt . . . shall be provided . . ." Again, the logical conclusion is that the legislature enacted this requirement to create a bright line rule, eliminate disputes regarding the date and time of the filing of the certificate and place the burden squarely on the candidate to file a certificate on a timely basis. To the extent that a candidate wishes to file a certificate by mail, the statute plainly instructs that it be done by certified mail so that the candidate may prove with a return receipt that the certificate was received by the secretary prior to the filing deadline.
The court concludes that these amendments were enacted to facilitate a fair, yet manageable, process for the nomination of elected officials. These amendments were enacted out of legitimate concerns to avoid late filed endorsements that impede election officials' abilities to comply with the myriad of requirements that follow the initial endorsement deadline.
It is true that, where possible, election statutes should be construed to avoid voter disenfranchisement. For instance, in Flanagan v. Hynes, 75 Conn. 584, 588, 54 A. 737 (1903), the court stated that electoral laws "are to be interpreted and applied with a regard for the purposes which they are intended to be accomplished and the evils they are intended to avert . . . If there is to be disfranchisement, it should be because the legislature has seen fit to require it in the interest of an honest suffrage, and has expressed that requirement in unmistakable language."
Nevertheless, the state has an important interest in enacting reasonable regulations in order to ensure orderly, fair and honest elections. Burdick v. Takushi, 504 U.S. 428, 433-34, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992) ("[c]ommon sense, as well as constitutional law, compels the conclusion that government must play an active role in structuring elections"). Otherwise, there is a danger of chaos and uncertainty infecting the democratic process. Id. Accordingly, there is an important state interest in ensuring adherence to the election calendar, and the legislature may properly insist on strict compliance with its electoral filing deadlines.
There has only been one other judicial decision that has construed § 9-388 since it was amended by Public Act 06-137. In Corcoran v. Bysiewicz, Superior Court, judicial district of Hartford, Docket No. 08 4038492 (August 29, 2008, Dubay, J.) ( 46 Conn. L. Rptr. 300), the court held that the amendments did not prohibit the court from issuing an injunction compelling the secretary of state to accept a late filed endorsement certificate. The court concluded that the plain language of the statute revealed no intent to "overrule the form of judicial relief afforded in Ocif, Gasparino and Kapi." The court respectfully disagrees with this decision because it unduly relies on Superior Court decisions that were decided prior to 2006 and offers little or no explanation of the legislature's intent behind its decision to add the language in 2006 declaring late filed certificates "invalid."
Although the court believes that the legislature's intent, as expressed in the words of the 2006 amendment is clear, its conclusion is buttressed by the legislative history of Public Act 06-137. For instance, the defendant's written testimony at a public hearing before the Government Administration and Elections Committee regarding Public Act 06-137 supports the conclusion that these amendments were a reaction to the Superior Court decisions that compelled the acceptance of a certificate of endorsement past the statutory deadline. "This bill reemphasizes the original intent of [§] 9-388 by stating that failure to comply with certain election related deadlines is a `fatal defect,' whereby any certificate filed after the deadline shall be invalid. Certain judicial decisions have made it necessary to clarify the necessity of the deadlines in the CT election calendar." (Emphasis added.) Conn. Joint Standing Committee Hearings, Government Administration and Elections, Pt. 1, 2006 Sess., p. 83. Although, this testimony is not the most direct evidence of legislative intent, it is entitled to some weight because "testimony before legislative committees may be considered in determining the particular problem or issue that the legislature sought to address by the legislation." (Internal quotation marks omitted.) Jim's Auto Body v. Commissioner of Motor Vehicles, 285 Conn. 794, 812, 942 A.2d 305 (2008).
The court is certainly cognizant that denying the plaintiff's request for relief will mean that a political party will not be represented by their endorsed candidate in the upcoming election. However, the language of the statute and the circumstances surrounding the amendments cannot be ignored. The statute commands candidates to adhere to the statutory requirements. If the legislature intended to give the secretary of state discretion to accept late-filed certificates of endorsements, it certainly could have amended the statute to clarify this intention. In the alternative, it could have taken no legislative action. Instead, it amended the statute to specifically provide that the failure to file within the prescribed time frame invalidates the endorsement. "[I]t should not be presumed that the legislature has enacted futile or meaningless legislation or that a change in a law was made without a reason." (Internal quotation marks omitted.) Dept. of Social Services v. Saunders, 247 Conn. 686, 701, 724 A.2d 1093 (1999). Accordingly, the court must conclude that the plaintiff's certificate of endorsement is invalid because it was not timely filed, and the court declines to issue an order compelling the defendant to place the plaintiff on the ballot.
CONCLUSION
For the foregoing reasons, the plaintiff's request for a permanent injunction is denied.