Opinion
No. HHD CV 08-4038492-S
August 29, 2008
MEMORANDUM OF DECISION
A verified complaint seeking temporary and permanent injunctive relief was presented to the court on July 9, 2008. Orders were entered in connection with a hearing to show cause on July 28, 2008, calling for the simultaneous submission of briefs and thereafter reply briefs. A hearing was scheduled for August 26, 2008. At the hearing, the parties submitted a stipulation of facts and argued to the court. The facts in this matter are the following.
The plaintiff, Matthew Corcoran, is a person residing in the town of Hamden, Connecticut.
The defendant, Susan Bysiewicz, is the Connecticut secretary of the state.
On May 22, 2008, the Hamden Republican Town Committee (the Committee) held a meeting to endorse candidates to run for separate seats in the Connecticut House of Representatives.
At the May 22, 2008 meeting, the Committee unanimously endorsed the plaintiff as the Republican candidate for the office of the state representative in the 88th assembly district.
At the time of the endorsement, no other candidate sought the nomination for the office of state representative for the 88th assembly district, and, since the endorsement, no person has filed a timely petition to primary for the Republican nomination for that seat.
The plaintiff signed a certificate of endorsement on June 5, 2008.
General Statutes § 9-391(c) provides that certificates of endorsement for the office of state representative shall be filed with the secretary of the state by 4 p.m. on the fourteenth day following the meeting that results in an endorsement.
The fourteenth day following May 22, 2008, was June 5, 2008.
On June 1, 2008, Sarah Morrill, the chairwoman of the Committee, gave Anthony Esposito, the Republican registrar of voters, paperwork signed by her and the secretary of the convention indicating that the plaintiff had been selected as the endorsed candidate.
On June 2, 2008, Esposito filed that paperwork with the town clerk.
On June 2, 2008, the town clerk informed Esposito that the paperwork he filed was not the proper paperwork, and that the proper paperwork needed to be completed and filed in Hartford with the secretary of the state's office.
Esposito and Morrill improperly concluded that the deadline for filing the certificate of endorsement was June 6, 2008, based upon a miscalculation of the number of days in the month of May.
On June 5, 2008, at a town committee meeting, the plaintiff completed and signed the certificate of endorsement.
Also, on June 5, 2008, Morrill gave the certificate of endorsement to Alfred Adinolfi, a resident of Cheshire and state representative from the 103rd assembly district.
Adinolfi hand-filed the certificate of endorsement with the secretary of the state's office on June 6, 2008, just one day after the statutory deadline. At the time Adinolfi filed the certificate with the secretary of the state's office, he was not informed that the certificate was late.
The plaintiff did not participate in the decision about when and where to file the certificate of endorsement.
On June 6, 2008, after the plaintiff's certificate of endorsement was filed, Michael Kozik, managing attorney in the secretary of the state's election division, telephoned Heath Fahle, the executive director of the Connecticut State Republican Party. During that call, Kozik advised Fahle that the plaintiff's certificate was not timely and could not be accepted. Kozik also advised Fahle that the plaintiff could still obtain a place on the ballot as the Republican nominee if he filed a primary petition with the secretary of the state's office by 4 p.m. on June 10, 2008. According to the most recent enrollment numbers filed with the secretary of the state's office, there are 1,668 individuals enrolled as Republicans in the 88th assembly district. Thus, in order to file a primary petition under General Statutes § 9-406, the plaintiff would have needed to obtain signatures from 5 percent of the enrolled Republicans in the 88th assembly district, i.e., a total of eighty-four signatures. Fahle never communicated any of this information to the plaintiff, and the plaintiff never filed a primary petition with the secretary of the state's office.
The first time the plaintiff learned that his certificate of endorsement had not been timely filed was on June 9, 2008, when he discovered his name was not listed as the Republican nominee for the 88th assembly district on the secretary of the state's website. At that time, the plaintiff called the secretary of the state's office and was advised by Arthur Champagne, a representative of the secretary of the state's office, that because the certificate of endorsement was filed on June 6, 2008, it was considered late and therefore invalid.
The defendant, Secretary of the State Susan Bysiewicz, will not accept the plaintiff's certificate of endorsement, and has indicated that she is not permitted by law to accept it. Therefore, she will not place the plaintiff's name on the ballot as the Republican nominee for the office of state representative in the 88th assembly district for the November 4, 2008 election.
DISCUSSION
"[I]n order for a [temporary injunction] to issue, [the trial court] must determine that: (1) the plaintiff has no adequate legal remedy; (2) the plaintiff would suffer irreparable injury absent a [temporary injunction]; (3) the plaintiff was likely to prevail on appeal; and (4) the balance of the equities favored a [temporary injunction]." Waterbury Teachers Ass'n. v. Freedom of Information Committee, 230 Conn. 441, 446, 645 A.2d 978 (1994).
The question of whether this court should issue injunctive relief is resolved with a review of three recent Superior Court cases and one older Supreme Court case.
"In Gasparino v. Bysiewicz, Superior Court, judicial district of Hartford, Docket No. CV 04 4002077 (September 13, 2004, Beach, J.) ( 37 Conn. L. Rptr. 879), Judge Beach ruled that a candidate who was nominated at a second convention (held two weeks outside the statutory period), but who filed his certification within the allotted time period, should be placed on the ballot. The [s]ecretary of [s]tate had previously rejected the certificate, finding that the second convention was untimely, and that since the certification was not filed after the first convention, the party was deemed to have made no endorsement. In rejecting the [s]ecretary of [s]tate's rigid interpretation of the statutes, Judge Beach found that the constitutional considerations of the party's right to choose its own candidates were paramount; see, Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986); Nielsen v. Kezer, 232 Conn. 65, 652 A.2d 1013 (1995); and that as a case of honest mistake, the good faith efforts to comply outweigh the interest of the state in strict compliance with the electoral scheme." (Internal quotation marks omitted.) Kapi v. Bysiewicz, Superior Court, judicial district of Hartford, Docket No. CV 06 4023881 (July 26, 2006, Berger, J.) ( 41 Conn. L. Rptr. 703).
Similarly, in Kapi v. Bysiewicz, supra, 41 Conn. L. Rptr. 703, Judge Berger ruled that, in a primary dispute, a candidate chosen by her town committee whose certificate of endorsement was not filed due to the error of the town's party chair should be placed on the ballot. The court found that "[t]he [t]own [c]ommittee legally chose [the candidate] and this candidate should not be kept off the ballot simply because another person forgot to file a certificate, considering that the late filing did not interfere with the orderly electoral process." Id., 705.
In their opinions, Judges Beach and Berger noted a Supreme Court decision, Flanagan v. Hynes, 75 Conn. 584, 587-88, 54 A. 737 (1903), in which the court overturned a moderator's rejection of ballots because they appeared to be improperly endorsed. This court agrees with Judge Beach's alliterative assessment that " Flanagan's vintage is venerable but its veracity vibrant." Gasparino v. Bysiewicz, supra, 37 Conn. L. Rptr. 880. The Flanagan court disfavored a result that would disenfranchise voters over a minor technicality caused by human error. "Such [electoral] laws have for their ultimate purpose the registration of the popular will upon the questions submitted for decision. Until quite recently their provisions were comparatively few and simple, and for the most part were concerned with the machinery and methods for the convenient and orderly expression of the will of the voters as they should choose to express it, and safeguarding the result as expressed. Of late, legislation has sought not only to register and safeguard the will of the voters as expressed, but, as far as possible, to secure an expression which should represent the true will of the voters unaffected by corruption, intimidation, undue influence, or deception. Such an attempt necessarily involves many commandments whose `thou shalts' and `thou shalt nots' multiply into a more or less complicated system. These commandments to be effective involve penalties which oftentimes can only be enforced by a rejection of ballots. The rejection of ballots ordinarily signifies the disfranchisement of the voters whose ballots they are. Circumstances may justify this disfranchisement as a necessary incident of an attempt to obtain an honest and true expression of the popular will. The danger of such a system, however, is that the disfranchisement will extend to the honest voter honestly attempting to exert his influence upon the election result. When such a result is accomplished, a grievous wrong is done to the citizen whose right is taken away; when it is done to any great extent, the system is put in serious jeopardy of being so used as to defeat its real ends. Statutes are to be interpreted and applied with a regard for the purposes which they are intended to accomplish and the evils they are intended to avert. There is no kind of legislation under a popular government to which this principle should be more consistently applied than that which seeks to regulate the exercise of the right of suffrage. 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. It should not result from doubtful judicial construction, from a too strict regard for the mere letter of the statutes, or from a resort to nice or technical refinements in either interpretation or application." Flanagan v. Hynes, supra, 75 Conn. 587-88.
A third Superior Court granted an injunction placing a party-endorsed candidate on the ballot even though his duly signed and mailed certificate was lost in the mail. Ocif v. Tashjian, Superior Court, judicial district of Litchfield, Docket No. 0053848 (August 8, 1990, Dranginis, J.) [ 2 Conn. L. Rptr. 191]. In that case, six days before the filing deadline, the secretary of the state notified party personnel that the certificate had not been received. Although party personnel timely faxed a copy of the certificate and filed a timely substitute certificate stating that the original had been lost, the secretary of the state deemed that the party had not endorsed any candidate. The court overturned the secretary of the state's decision, and "found that the statutory language, which stated that if a certificate . . . is not timely received the party `shall be deemed to have made no endorsement' created a presumption that was rebutted by abundant evidence. Judge Dranginis noted that statutes are to be read as contemplating sensible, not bizarre results . . . and that there was no evidence of fraud, just a case of human error." (Citation omitted; internal quotation marks omitted.) Kapi v. Bysiewicz, supra, 41 Conn. L. Rptr. 704.
In the present case, the plaintiff argues that the court should grant a temporary injunction compelling the defendant to place his name on the ballot because the balance of the hardships involved favors the plaintiff. Specifically, the plaintiff argues that he would have timely filed his certificate of endorsement but for the honest mistake of the committee chairwoman, the filing was only one day late and placing him on the ballot will not prejudice the defendant. Furthermore, the plaintiff argues that failing to place him on the ballot will deprive voters in his district of the opportunity to vote for an endorsed Republican candidate for state representative.
The defendant argues that the court should deny the injunction because the relevant statutory provisions governing the certification process, General Statutes §§ 9-388 and 9-391(c), have been amended with the purpose of creating a "bright line" rule foreclosing the possibility of judicial relief. The defendant argues that the plain language of the amended statutes, their legislative history and the circumstances surrounding their enactment supports this interpretation. Based on the cases discussed above, it is clear that prior to the effective date of Public Acts 2006, No. 06-137, §§ 2 and 3, the secretary of the state had discretion to accept untimely certificates of endorsement. Public Act 06-137 amended §§ 9-388 and 9-391(c) to add the phrase "such certificate shall be invalid" to the sentence that states that if the secretary of the state does not receive the certificate within fourteen days of the party's nominating convention, then the party is be deemed to have endorsed no candidate for office. As an example of the secretary of the state's discretionary authority before the enactment of P.A. 06-137, the plaintiff has attached Assistant Attorney General Susan Cobb's response to a request for advice from Elections Divisions Chief Kozik of the secretary of the state's office. This memorandum concerned the secretary of the state's power to accept late-filed certificates caused by an honest mistake that would not trigger administrative difficulties. Citing Gasparino v. Bysiewicz, supra, 37 Conn. L. Rptr. 879, and the passage of P.A. 06-137, Cobb wrote Kozik that "it is reasonable to conclude that, at least before the effective date of [ P.A.] 06-137, late filed certificates are not invalid and may be accepted."
General Statutes § 9-388 provides in relevant 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 indicating 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 . . ." General Statutes § 9-391(c) provides in relevant part: "Each endorsement of a candidate to run in a primary for the nomination of candidates for a municipal office to be voted upon at a state election shall be made under the provisions of section 9-390 not earlier than the eighty-fourth day or later than the seventy-seventh day preceding the day of such primary. Any certification to be filed under this subsection shall be received by the Secretary of the State, in the case of a candidate for the office of state senator or state representative, or the town clerk, in the case of a candidate for any other municipal office to be voted upon at a state election, not later than four o'clock p.m. on the fourteenth day after the close of the town committee meeting, caucus or convention, as the case may be. If such a certificate of a party's endorsement is not received by the Secretary of the State or the town clerk, as the case may be, by such time, such certificate shall be invalid and such party, for the purposes of sections 9-417 and 9-418, shall be deemed to have neither made nor certified any endorsement of any candidate for such office. The candidate so endorsed for a municipal office to be voted upon at a state election, other than the office of justice of the peace, shall file with the Secretary of the State or the town clerk, as the case may be, a certificate, signed by that candidate, stating that such candidate was so endorsed, the candidate's name as the candidate authorizes it to appear on the ballot, the candidate's full street address and the title and district of the office for which the candidate was endorsed. Such certificate shall be attested by the chairman or presiding officer and the secretary of the town committee, caucus or convention which made such endorsement . . ."
In their briefs, the parties disagree over what effect the passage of P.A. 06-137 has on the secretary of the state's authority to accept late-filed certificates. Even if P.A. 06-137 does prohibit the secretary of the state from exercising discretion, the question before the court is whether P.A. 06-137 is a check on the Superior Court's power to issue an injunction compelling the secretary of the state to accept the certificates. Based on a review of the plain language of the statute and the relevant legislative history, the court declines to make such a finding.
"In determining the effect of a subsequent statutory amendment on earlier legislation, [courts] are guided by well defined principles of statutory interpretation. [Courts] recognize the usual presumption that, in enacting a statute, the legislature intended a change in existing law. This presumption, however, like any other, may be rebutted by contrary evidence of the legislative intent in the particular case." (Citations omitted.) State v. Magnano, 204 Conn. 259, 277, 528 A.2d 760 (1987).
Neither the plain language of §§ 9-388 and 9-391(c) nor the legislative history of P.A. 06-137 display any legislative intent to alter the extraordinary powers of the court to issue an injunction compelling the secretary of the state to place a candidate's name on the ballot in certain limited circumstances. The defendant argues that the court should find that the legislature intended to overrule the form of judicial relief afforded in Ocif, Gasparino, and Kapi. Because the plain language of the statute reveals no such intent, the defendant's sole evidence consists of one paragraph from the defendant's written testimony to the government administration and elections committee in support of Senate Bill 69. The defendant wrote: "This bill reemphasizes the original intent of [General Statutes § ]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 [Connecticut] election calendar." Besides this written testimony, the defendant can point to no other legislative history that supports her position. Therefore, this court is unwilling to find that the legislature has expressed an unequivocal intention to restrict the Superior Court from exercising its extraordinary powers in certain limited circumstances. "A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law." Maritime Ventures, LLC v. Norwalk, 277 Conn. 800, 807, 894 A.2d 946 (2006). "The issue to be resolved, stated very generally, is whether the state's, and the public's, interest in strict compliance is outweighed by the party's, and perhaps the public's, constitutionally implicated interests." Gasparino v. Bysiewicz, supra, 37 Conn. L. Rptr. 879.
The relevant provisions of P.A. 06-137 were first proposed in Senate Bill 69 and later incorporated into an omnibus bill voted out of the government administration and elections committee. Ultimately, the language of P.A. 06-137 was incorporated into Senate Bill 66 on the last day of the 2006 legislative session and passed the House and Senate.
Given the narrow scope of these judicial decisions, the defendant's proposal seems to be "a solution in search of a problem."
As an illustration of the legislature's lack of intent concerning the issue at bar, see Representative Ward's remarks to Speaker Amann regarding the amendments to Senate Bill 66:
Representative Ward: Thank you, Mr. Speaker. Mr. Speaker, I will be very brief because I will allow the vote to occur on this before the clock strikes midnight. I think it is a fair compromise, but I must say this process is absurd. We are handed a 70-page bill at five minutes to midnight, and we need to make a decision. I glanced at it. I think it's right. I pray it's right, because I'm not at all trustworthy about it, but I will vote yes, and hope for the best despite the bad process.
50 H.R. Proc., Pt. 20, 2006 Sess., pp. 6352-53.
This court is not concerned that its decision will "open the flood gates," as counsel for the parties have identified only four cases over the past 105 years in which courts have granted injunctive relief where a candidate who suffers a good faith mistake is disenfranchised by strict compliance with election laws.
In the narrow circumstances of this case, the court finds that a temporary injunction must issue. The plaintiff has no adequate remedy at law and will suffer an irreparable harm if he is not placed on the ballot as the endorsed Republican candidate for state representative. The defendant's refusal to allow the plaintiff's name on the ballot will impact the plaintiff's candidacy as well as the interests of the voters that support the candidate. The fact that the plaintiff has filed a "nominating petition" to run as an unendorsed candidate does not weigh heavily on this analysis. The plaintiff and the party should not be disenfranchised based on an innocent mistake and the defendant has not presented compelling evidence that this mistake will compromise the defendant's ability to operate a fair and orderly election. Indeed, the defendant has not articulated any non-theoretical harm that may occur should this relief be granted. In exercising its equitable powers, this court acknowledges the principles described in Flanagan, including the Supreme Court's concern that the "danger" of strict compliance with election systems "is that the disfranchisement will extend to the honest voter honestly attempting to exert his influence upon the election result. When such a result is accomplished, a grievous wrong is done to the citizen whose right is taken away; when it is done to any great extent, the system is put in serious jeopardy of being so used as to defeat its real ends." Flanagan v. Hynes, supra, 75 Conn. 587. Finally, this ruling provides sufficient time for meaningful appellate review prior to the November 4, 2008 election. Accordingly, the request for injunctive relief is granted.
In Ocif, Judge Dranginis rejected the argument that irreparable harm would be avoided if the aggrieved candidate's name were placed on a ballot by petition because the candidate would lack a party affiliation on the ballot. Thus, the court held that the candidate had "no remedy save injunctive relief, to secure the endorsement on the ballot." Ocif v. Tashjian, supra, Docket No. 0053848. Similarly, Judge Beach rejected the solution of allowing the aggrieved candidate to run as a "write-in" candidate: "This is far different from running on the ballot as an endorsed candidate. Not only are the practical hurdles significant, but the party would be prevented from presenting its candidate, and its principles, to the electorate." Gasparino v. Bysiewicz, supra, 37 Conn. L. Rptr. 881 n. 5.
The defendant has provided a thirty-six-page document listing, in her words, "a dizzying, complex and interrelated set of deadlines," but has not explained how granting this injunction will interfere with the ability of elections officials to comply with them in the present case. The defendant also argues that these deadlines are necessary to protect the rights of primary challengers. In this case, however, there is no evidence that any primary candidates exist.
At the August 26, 2008 hearing, the parties represented that the deadline for printing ballots for the November 4, 2008 election is October 3, 2008.