Opinion
No. HHD CV-06-4023881S
July 26, 2006
MEMORANDUM OF DECISION
The present suit involves a request for mandatory injunctive relief and the parties are in basic agreement as to the following facts. On May 17, 2006, the Wallingford Democratic Town Committee endorsed the plaintiff, Barbara Kapi, for the office of Democratic Registrar of Voters by a margin of 65-6. The defendant Diana Hotchkiss (the incumbent Democratic Registrar of Voters) received the six votes. While Kapi signed the required Certificate of Endorsement, pursuant to General Statutes § 9-388, the certificate was not filed within the statutory fourteen days after the close of the convention. Meanwhile, on May 31, 2006, Hotchkiss, having the requisite 5% signatures, filed a petition to run in a primary for that office. After receiving a telephone call on June 6, 2006, inquiring whether the certificate had been filed for Mary Mushinsky, the Democratic Town Chair, William Fischer, realized that he had not filed any of the certificates within the fourteen-day limit. Fischer had discussions with various people over the next few days, including representatives of the Secretary of State's office and the Attorney General's office. As a result of the position taken by the Attorney General's office that the failure to file was an innocent mistake, the defendant Susan Bysiewicz, Secretary of State, placed Mushinsky's name on the ballot, and the defendant Barbara Thompson, Wallingford Town Clerk, placed Wright's name on the ballot. Thompson would not do the same for Kapi and Kapi filed this suit on June 19, 2006, seeking to have her name placed on the ballot for the August 8, 2006 primary as the endorsed candidate for the office of Democratic Registrar of Voters.
On the same date, the Town Committee also endorsed Philip Wright to run for the office of Probate Judge and Mary Mushinsky to be the candidate for the 85th General Assembly District.
General Statutes § 9-388 states: "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. 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 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. If applicable, the chairman of a party's state convention shall, forthwith upon the close of such convention, file with the Secretary of the State the names and full residence addresses of persons selected by such convention as the nominees of such party for electors of President and Vice-President of the United States in accordance with the provisions of section 9-175."
Wright and Mushinsky both signed the respective certificates of endorsement, but those were not filed within fourteen days either.
General Statutes § 9-406 states, in part: "A candidacy for nomination by a political party to a municipal office or a candidacy for election as a member of a town committee may be filed by or on behalf of any person whose name appears upon the last-completed enrollment list of such party within the municipality or within the political subdivision, senatorial district or assembly district within which a person is to be nominated or a town committee member is to be elected, as the case may be. Any such candidacy shall be filed by filing with the registrar within the applicable time specified in section 9-405 a petition signed by (1) at least five percent of the electors whose names appear upon the last-completed enrollment list of such party in such municipality or in such political subdivision, senatorial district or assembly district . . ."
On July 10, 2006, this court heard argument on the request for injunctive relief and, in light of a time limitation concerning the preparation of ballots for the primary election of August 8, 2006, granted the requested relief on July 11, 2006.
The parties agreed that this court's ruling would decide both the request for temporary and permanent injunctive relief.
II A.
"In 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 Association v. Freedom of Information Committee, 230 Conn. 441, 446, 645 A.2d 978 (1994).
In Waterbury Teachers, the plaintiff made a motion for a stay of defendants' proceedings, and the trial court treated the application for a motion for stay as the equivalent of a request for a temporary injunction.
B.
The question of whether the injunctive relief should issue is resolved with a review of two recent Superior court cases, one older Supreme Court case, and the opinion of the Attorney General concerning a recent action of the legislature.
In Gasparino v. Bysiewicz, Superior Court, judicial district of Hartford, Docket No. CV 04 4002077 (September 13, 2004) ( 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 Secretary of State 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 Secretary of State'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." Gasparino v. Bysiewicz, supra, Superior Court, Docket No. CV 04 4002077. It is true that in his finding Judge Beach noted that there was no other candidate other than the plaintiff and thus no issue of a primary as in the present case; yet, that is a distinction without a difference. Here, as in Gasparino, the party made its clear choice, and the violation of the statute was a simple honest mistake.
Judge Beach also noted the instruction from Flanagan v. Hynes, 75 Conn. 584, 587-88, 54 A. 737 (1903), in which our Supreme Court stated while overturning a moderator's rejection of ballots because they were arguably improperly labeled: "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." Such advise surely has stood the test of time.
The second trial court case that is helpful in determining whether the injunction should issue is Ocif v. Tashjian, Superior Court, judicial district of Litchfield, Docket No. CV 0053848 (August 8, 1990), in which Judge Dranginis granted injunctive relief placing a party-endorsed candidate for High Sheriff on the ballot even though his certificate, while duly signed and mailed, was never received by the Secretary of State. Prior to the deadline, the Secretary of State notified the party personnel that the certificate had not been received and hence a timely facsimile copy was sent as well as a timely substitute copy, together with an affidavit, which noted that the original had been lost in the mail. In overturning the Secretary of State's decision, the court 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 "[s]tatutes are to be read as contemplating sensible, not bizarre results," id. (quoting LeConche v. Elligers, 215 Conn. 701, 713, 579 A.2d 1 (1990)), and that there was no evidence of fraud, just a case of human error. The Ocif facts are essentially the same as the present case: a certificate that did not reach the Secretary of State's office through human error.
Kapi attached to her memorandum Assistant Attorney General Susan Cobb's response to a Request for Advice from Michael Kozik, Elections Divisions Chief at the Secretary of State's office. The request concerned the ability to accept four late-filed certificates of party endorsements; all were due to innocent mistakes that would not cause any administrative difficulties. Assistant Attorney General Cobb, relying first on the opinion in Gasparino v. Bysiewicz and, second, on the passage of Public Acts 2006 No. 06-137, which amended a portion of General Statutes § 9-388 by adding the phase "such certificate shall be invalid" to the sentence that states that non-receipt would be deemed to have made no endorsement of any candidate, concluded that until Public Act 06-137 became effective on January 1, 2007, Mr. Kozik would have discretion to accept late-filed endorsements. She stated that "it is reasonable to conclude that, at least before the effective date of Public Act 06-137, late filed certificates are not invalid and may be accepted." (Complaint, Exhibit D). As noted by Kapi, based upon advice of counsel, Wright's name was placed on the ballot as the endorsed candidate for Wallingford Probate Judge.
Certainly, these four opinions support the conclusion that Kapi's name should be placed on the ballot. There is no question that she was clearly nominated by the Town Committee and that, despite signing the certificate, the Town Chair simply forgot to file the certificate. Likewise, according to counsel for the Town Clerk, there would be no administrative hardship if a judicial decision was rendered by 5:00 p.m. on July 11, 2006, the date the ballots were sent to the printers. Hotchkiss' primary petition does not change this conclusion: first, the party voted to support Kapi. Second, she is not prejudiced as she is in the same position as she was on the date of her filing. (Kapi had put her on notice on June 12, 2006 that she would seek this specific relief.)
"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, 807-08, 894 A.2d 946 (2006). The plaintiff has met her burden of proving an irreparable harm failing to be placed on the ballot as the endorsed party candidate clearly impacts her candidacy and the will of those who nominated her. The Town Committee legally chose Kapi 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. There is no adequate remedy at law. In light of the overwhelming vote of the town committee, and, as Hotchkiss is in no different position than she would have been had Fischer timely filed the certificates of endorsement, the equities certainly tip in favor of Kapi. Accordingly, the request for injunctive relief is granted.