Opinion
No. HHD-CV 10-5035127-S
October 25, 2010
MEMORANDUM OF DECISION
This action is brought by the plaintiff Alyssa S. Peterson, a resident of Hartford and the Sixth District of the Connecticut Assembly. The action makes two principal claims.
The first is that the endorsement which was received by the defendant, Hector Robles, from the Hartford Democratic Town Committee was invalid, as it failed to comply with provisions of the applicable statute, Connecticut General Statutes § 9-391.
The record of the proceeding, the court, and the parties refer to the provisions of Connecticut General Statute 9-388. Those references are erroneous. The plaintiff has moved orally to amend her allegations to allege a violation of Section 9-391 of the Statutes, which Motion the court has granted.
The second claim is a claim for relief under Connecticut General Statutes § 9-387.
The Court has heard evidence with respect to the first, and a ruling on that claim follows. With respect to the second claim, the defendant Robles has filed a motion to dismiss. The plaintiff has filed an objection to the motion and a ruling with respect to that issue follows as well.
FINDINGS OF FACT
The defendant Hector Robles is the current State Representative for the Sixth Assembly District, which is a district geographically located entirely within the City of Hartford. He is also the endorsed candidate of the Democratic Party for the same seat in the upcoming November 2010 election.
Susan Bysiewicz is the Secretary of State of the state of Connecticut.
At the time that the defendant Robles received the endorsement of the Democratic Party, Ms. Georgianna Holloway was the chairperson of the Hartford Democratic Party in the City of Hartford. The secretary of the party was Mr. Angel Morales.
On or about May 20, 2010, Ms. Holloway convened a meeting of the Democratic Town Committee in order to endorse candidates for the Sixth Assembly District and, at the same time, the other Assembly Districts contained within the city of Hartford.
The method used in order to determine the endorsement for each of the separate districts was that the meeting of the entire Democratic Committee was called to order. Thereafter, the nomination of the various candidates for each of the Assembly Districts was taken up in several separate meetings for the specific purpose of nominating a candidate for each of those districts. Accordingly, there would have been a separate meeting for the Fourth Assembly District, the Fifth Assembly District, the Sixth Assembly District and so forth.
At the conclusion of those smaller meetings, which Ms. Holloway described informally as "mini conventions," the larger convention re-assembled and the results were reported to the group as a whole. There was no discussion or objection to any of the nominations, including that of the defendant Robles.
The person who chaired and presided over the meeting specifically convened to endorse a candidate for the Sixth Assembly District was Glenn Geathers. The person who acted as secretary for that meeting was Janet Appellof.
The defendant Robles submitted a document entitled "Certificate of Party Endorsement" to the Secretary of State, which document certified that he was the endorsed candidate of the Democratic Party for the Sixth Assembly District. The document was signed and dated May 20, 2010.
The "Certificate of Party Endorsement" was submitted in a timely fashion according to the provisions of Section 9-391 of the Statutes.
Section 9-391(c) of the Connecticut General Statutes is entitled "Time for party endorsements for municipal offices and town committee members. Time for selection of delegates to conventions. Certification. Late certification void." In relevant part, it reads as follows:
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 . . . 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 . . . 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.
The "Certificate of Party Endorsement" was signed by Mr. Geathers in the capacity of "Chairman or Presiding Officer of Meeting" and by Miss Appellof as "Secretary of Meeting."
The "Certificate of Party Endorsement" for the endorsed candidates in the Fourth Assembly District and the Seventh Assembly District were certified in the same manner, that is that the chair and/or secretary of the meeting specific to those districts certified the endorsement of those candidates to the Secretary of State. No Challenge is presented to those endorsements.
Subsequently, a primary was held on August 10, 2010 in which the plaintiff Peterson challenged the defendant Robles. The defendant Robles was the winner of that primary, which results were also certified to the Secretary of State. The certification of the primary results is not challenged by this lawsuit.
DISCUSSION
The plaintiff urges a close reading of the statute in accordance with the decision of the Connecticut Supreme Court in the case of John W. Butts v. Susan Bysiewicz (SC 18663), released October 26, 2010. In that case, the Supreme Court ruled that a certificate of endorsement received after the time period specified in the statutes was invalid. While the case was decided under Section 9-388 of the Statutes, the language in question is essentially identical to Section 9-391.
Each of these sections was amended by Public Act 06-137. Significantly, P.A. 06-137 added language which reads "if a certificate of the party's endorsement for a particular state or district offices not received by the Secretary of State by such time, such certificate shall be invalid . . ." In applying this language to the circumstances presented in the Butts case, the court concluded that the endorsement received by Butts was invalid because it was not filed by the appropriate deadline. In that case, as here, there was no factual challenge to Butts' being the party endorsed candidate. The question presented to the Court was whether Butts' endorsement could be accepted by the Secretary of State after the filing deadline.
It is also noteworthy that P.A. 06-137 did not change the method or the language for the certification of the endorsement itself. It is the filing deadline that the change in the statute emphasizes, and it was the failure to comply with that deadline that was deemed fatal to the candidate in the Butts case.
The Butts decision does not directly address the issue raised in this case, which is whether the endorsement of a candidate by an assembly convention held as part of a larger town committee meeting is valid. Butts, however does offer the following guidance: "Ambiguities in election laws are construed `to allow the greatest scope for public participation in the electoral process, to allow candidates to get on the ballot, to allow parties to put their candidates on the ballot, and most importantly to allow the voters a choice on election Day" quoting, in part, from New Jersey Democratic Party v. Sampson, 175 N.J. 178, 190, 814 A.2d 1028 (2002).
There is no claim made in the plaintiff's complaint, in the evidence, or in argument that Mr. Robles is not the candidate who received the party endorsement for the Sixth Assembly District.
The claim is that the attestation of the person presiding over the meeting specifically intended to nominate a candidate for the Sixth Assembly District, as well as the secretary for that meeting are inadequate under the terms of the statute.
CONCLUSION
The court finds that in light of the evidence presented, the certificate of party endorsement complies with the requirements of the statute. The Court hereby denies the plaintiff's claims which are based on the allegation that the certificate presented to the Secretary of State is invalid.
MOTION TO DISMISS
In addition to the findings of fact that appear above, the following facts and allegations made in the plaintiff's complaint are also relevant to the motion to dismiss.
The plaintiff has alleged that the defendant Robles has committed a series of improprieties in connection with his employment as a police officer for the City of Hartford. The allegations include that he has supplied false information with respect to his work performance and pay records which amount to larceny.
The plaintiff further alleges that at the time when the defendant Robles was seeking the endorsement of the town committee for the Sixth Assembly District, he knowingly withheld said information from the town committee.
The plaintiff alleges that the news of the police investigation became public in July 2010, and that Robles took action to conceal and misrepresent the nature of the investigation being made by the Hartford Police Department against him.
The members of the Hartford Democratic town committee authorized to act for the Sixth Assembly District held a meeting on or about July 17, 2010, and took no action.
The plaintiff claims that the defendant Robles falsely claimed he had been endorsed by the Hartford Police Union.
The plaintiff claims that the defendant Robles used public dollars to finance his campaign by which he "was able to prolong and maintain his fraud."
There was a primary election on August 10, 2010 in which the defendant Robles defeated the plaintiff Peterson.
The plaintiff claims that the full internal affairs report was released two days after said primary. The plaintiff also claims that as a result of the release of said report there were discussions by and between members of the Hartford Democratic Town Committee and the defendant Robles.
The plaintiff alleges that on August 16, 2010 "an emergency 6th District Town Committee meeting was called to address the resignation of the Defendant . . ." She further alleges that the meeting discussed the defendant's fraudulent conduct, contained a presentation by an attorney and made a determination that the defendant Robles had acted deceitfully and fraudulently in order to maintain his endorsement and to receive public campaign funds.
The plaintiff claims that she reported these events to the Connecticut Democratic Party pursuant to Section 9-387 of the Statutes, and that the party declined to take action.
DISCUSSION
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008). "In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." Villager Pond, Inc., v. Darien, 54 Conn.App. 178, 183, 734 A.2d 1031 (1999).
The defendant's motion to dismiss is premised upon the notion that Connecticut General Statutes § 9-387 is a statute that provides for the plaintiff to pursue her remedy through the political process, and leaves the plaintiff without a remedy in the courts.
That premise has been generally observed, but not universally so in the Connecticut courts. For instance, in Bysiewicz v. Dinardo, No. HHD-CV 10-6008194-S (May 5, 2010), the court undertook to resolve a matter of statutory interpretation.
In the majority of cases which have been brought under Section 9-387, the Court has weighed carefully whether to leave the litigants to the internal party mechanism or, where appropriate, to intervene. A useful summary of decisions is provided in Bysiewicz, supra, as follows:
. . . Nielsen v. Keezer, supra, 232 Conn. 65 (Court deferred to party's own interpretation of its rules as to whether seconding motion for nomination of state senate candidates was proper because it involved an internal matter and was not illegal or irrational); Hartford Democratic Town Committee v. Connecticut Democratic State Central Committee, Superior Court, judicial district of Hartford, Docket No. CV 03 0822364 (February 18, 2003, Booth, J.) (internal dispute regarding endorsement of candidate was appropriate matter for Democratic State Central Committee to interpret and apply its rules where no legal or constitutional right was violated and procedure was not patently irrational); Oliveira v. Carnell, Superior Court, judicial district of New London, Docket No. CV 02 0561348 (February 28, 2002, Leuba, J.) (pursuant to General Statutes § 9-387, plaintiff should have resolved intra-party dispute involving the endorsement of candidates in accordance with party rules).
"The general rule appears to be that courts should indeed be reluctant to intervene, especially in disputes over the party nomination process, but where statutory violations are involved or questions of fraud are raised, then the courts will intervene." Wallace v. Cash, 328 S.W.2d 516, 518, 519 (1959, Ky), Appeal of Wakefield, 79A 117, 119 (Pa, 1911), Allen v. Burrow, 77 P. 555, 557 (Kans., 1904), cf Myers v. Westport, 41 Conn.Sup. 295 (1989), also see Meagher v. Howell, 188 S.W. 373, 374 (Ky, 1916); contra Exparte Baxley, 496 So.2d 688, 692 (Ala., 1986), Taylor v. Tennessee State Democratic Executive Committee, 574 S.W.2d 716, 717 (Tenn. 1978). Nielsen v. Keezer, No. CV 94-0705311-S (Sep. 8, 1994).
Of the cases cited for the above stated proposition, the only one to have alleged an issue of fraud is the case of Taylor v. Tennessee State Democratic Executive Committee. In that particular case, the fraud alleged was as to the Democratic committee itself in the nomination of a justice for the Tennessee Supreme Court. And even under those circumstances, the court refused to act out of deference to a statute which left the parties to their political remedies.
In this case, the actions by the defendant Robles which the plaintiff claims are tantamount to fraud are known to the Democratic Town Committee. Indeed, the allegations of the complaint indicate that they were the subject of two separate meetings at which Robles' conduct was specifically discussed. Further, the plaintiff initiated a complaint or proceeding before the state Democratic Party.
For better or for worse, the plaintiff has fully pursued her remedies under Section 9-387. Other than the fact that she feels strongly that the decision is the wrong one, there is not sufficient reason under the law for the court to intervene, or disturb the decision afforded by the political process.
For the foregoing reasons, the motion to dismiss is hereby granted.