Opinion
No. CV 04 4001055 S
August 5, 2004
MEMORANDUM OF DECISION
The plaintiff Elizabeth Villanueva seeks to run in the August 10, 2004, primary election for the Democratic nomination for the Fourth District of the State House of Representatives. She initially was certified as a candidate for the nomination by the defendant's office; on July 19, 2004, she was "decertified" following an investigation conducted by the State Elections Enforcement Commission. She filed this action in an effort to compel "recertification."
I. Procedural Posture
This proceeding has been expedited in light of the pending primary election. As noted briefly above, Ms. Villanueva's name was ordered removed from the ballot on or about July 19. Her complaint, dated July 26, 2004, was filed on July 28, 2004. At that time I denied a request for an ex parte order restoring her name to the ballot, but ordered service and an expeditious hearing. The papers apparently were served on July 29, 2004, and I began the factual hearing on August 2, 2004. I heard additional evidence yesterday, August 3, 2004.
The pleadings are, quite understandably, less than orderly and do not frame the issues well. The verified complaint alleges that the plaintiff Elizabeth Villanueva is a duly qualified member of the Democratic Party and that the defendant Aviles is the Democratic Registrar of Voters for the city of Hartford. Villanueva filed an application to petition as a candidate for the nomination for the Fourth District of the State House of Representatives. She was required to obtain 212 valid signatures and collected a sufficient number. She was notified "on or about May 2004" that she had qualified. In June 2004, counsel for the Hartford Democratic Town Committee registered a complaint with the State Elections Enforcement Commission regarding Ms. Villanueva's candidacy. By letter dated July 19, 2004, and received July 22, 2004, she was notified by the defendant (or her office) that her certification as a candidate was revoked. The claimed deficiency in the "decertification" is a lack of any opportunity to address the action taken, i.e., no notice or opportunity to be heard, and claimed violations of Ms. Villanueva's constitutionally protected rights pursuant to the First and Fourteenth Amendments to the United States Constitution. Claiming a deprivation of rights without due process, she invoked the provisions of 42 U.S.C. §§ 1983 and 1988. She sought relief in the form of a temporary injunction "prohibiting (Aviles) from continuing to de-certify" her candidacy, a permanent injunction requiring recertification, a show cause order and such other relief to which the plaintiff may be entitled. The complaint was reportedly served on the defendant last week; there is no mention of service on any other party and I assume that no other party has been named, served or officially notified of the action.
The defendant filed a motion to strike the complaint. The motion largely relies on an assumption that the action was brought, either intentionally or by operation of law, pursuant to § 9-329a of the General Statutes. The motion cited authority to the effect that expedited proceedings conducted pursuant to § 9-329a were limited in scope and did not contemplate the resolution of constitutional issues. Even if the court should view the complaint more broadly, the motion argues, the requirements for a preliminary injunction cannot be met. Perhaps significantly, the memorandum in support of the motion alleges in some detail the facts it claimed were relevant to the dispute. Ordinarily, of course, "speaking motions" are not favored.
Sec. 9-329a provides:
(a) Any (1) elector or candidate aggrieved by a ruling of an election official in connection with any primary held pursuant to (A) Section 9-423, 9-424, 9-425 or 9-464 or (B) A special act, (2) elector or candidate who alleges that there has been a mistake in the count of the votes cast at such primary, or (3) candidate in such a primary who alleges that he is aggrieved by a violation of any provision of Sections 9-355, 9-357 to 9-361, inclusive, 9-364, 9-364a or 9-365 in the casting of absentee ballots at such primary, may bring his complaint to any judge of the Superior Court for appropriate action. In any action brought pursuant to the provisions of this section, the complainant shall send a copy of the complaint by first-class mail, or deliver a copy of the complaint by hand, to the State Elections Enforcement Commission. If such complaint is made prior to such primary such judge shall proceed expeditiously to render judgment on the complaint and shall cause notice of the hearing to be given to the Secretary of the State and the State Elections Enforcement Commission. If such complaint is made subsequent to such primary it shall be brought, within fourteen days after such primary, to any judge of the Superior Court.
(b) Such judge shall forthwith order a hearing to be held upon such complaint upon a day not more than five nor less than three days after the making of such order, and shall cause notice of not less than three days to be given to any candidate or candidates in any way directly affected by the decision upon such hearing, to such election official, to the Secretary of the State, the State Elections Enforcement Commission and to any other person or persons, whom such judge deems proper parties thereto, of the time and place of the hearing upon such complaint. Such judge shall, on the day fixed for such hearing, and without delay, proceed to hear the parties and determine the result. If, after hearing, sufficient reason is shown, such judge may order any voting machines to be unlocked or any ballot boxes to be opened and a recount of the votes cast, including absentee ballots, to be made. Such judge shall thereupon, if he finds any error in the ruling of the election official, any mistake in the count of the votes or any violation of said sections, certify the result of his finding or decision to the Secretary of the State before the tenth day following the conclusion of the hearing. Such judge may (1) determine the result of such primary; (2) order a change in the existing primary schedule; or (3) order a new primary if he finds that but for the error in the ruling of the election official, any mistake in the count of the votes or any violation of said sections, the result of such primary might have been different and he is unable to determine the result of such primary.
(c) The certification by the judge of his finding or decision shall be final and conclusive upon all questions relating to errors in the ruling of such election official, to the correctness of such count, and, for the purposes of this section only, such alleged violations, and shall operate to correct any returns or certificates filed by the election officials, unless the same is appealed from as provided in section 9-325. In the event a new primary is held pursuant to such Superior Court order, the result of such new primary shall be final and conclusive unless a complaint is brought pursuant to this section. The clerk of the court shall forthwith transmit a copy of such findings and order to the Secretary of the State. CT Page 11936
Each of the parties submitted additional memoranda as the hearings took place. As will be seen, the claims are now somewhat different, or at the very least significantly differently defined, from what they were a week ago.
II. Facts
The facts developed at the hearings are, with one exception, quite simple. Elizabeth Villanueva, the putative candidate, has a brother, Jose Villanueva ("Jose"). He had been a Hartford Democrat for some time but moved to East Hartford for a short period of time. On his return, he registered to vote in Hartford, apparently registered as unaffiliated, although he thought of himself as a Democrat. While officially unaffiliated, he collected signatures in May 2004, in support of his sister's petition drive to be on the primary ballot. On May 24, he turned in his petition pages to the Democratic registrar of voters; the pages were accepted by Shawn Harrell, the Deputy Democratic Registrar, apparently after 4:30 p.m. Also on May 24, 2004, Jose submitted his change of affiliation card so that he would be designated a Democrat. He unfortunately neglected to sign that card; a staff member who reviewed the documentation rejected the change of affiliation and caused notification of the rejection to be sent on May 24. When Jose was told of the defect, he returned and corrected the situation so that he was properly registered as a Democrat. Notice of the acceptance of the registration was processed on May 27.
There is a factual difference between the parties as to when Jose Villanueva successfully completed the paperwork. Without exhaustively reciting the evidence, a summary of the positions is that the plaintiff has submitted evidence supporting the conclusion that the correction occurred the same day, on May 24, and that Jose would, then, have been properly registered at the time he submitted the petition signatures to Ms. Harrell. The defendant has submitted evidence tending to show that the correction of the signature card could not have occurred earlier than May 25, and that Mr. Villanueva was not, then, a properly registered Democrat at the time the petition pages were submitted. I find that it makes no difference, because under any scenario Mr. Villanueva was not an enrolled member of the Democratic Party when the signatures were collected.
In any event, there is no question but that Ms. Villanueva's candidacy was certified. In June, Robert Simpson, counsel to the Hartford Democratic Town Committee, filed a complaint with the State Elections Enforcement Commission. The gravamen of the complaint was that Mr. Villanueva was not at the time an enrolled Democrat as required by § 9-410(c) of the General Statutes. The commission, with some participation from the managing attorney of the Secretary of State's office, investigated the complaint. Jeffrey Garfield, the executive director and counsel for the commission, testified that the people involved with the transactions in the registrar's office were interviewed along with Mr. Villanueva, and relevant paperwork was reviewed. The commission, Ms. Aviles, and Ms. Harrell reached an agreement on July 9, 2004, to the effect that the petition pages submitted by Mr. Villanueva should have been rejected because Mr. Villanueva was not at the time "an enrolled party member." The stipulated agreement stated that Ms. Villanueva was to be informed that her candidacy was to be rejected accordingly. She was so informed, and this action followed.
Apparently because she was also running in the same primary election, Ms. Aviles recused herself from active participation in the investigation and decision making.
III. Consideration as a Hearing Pursuant to § 9-329a
The defendant has argued that although there is no specific claim that this matter has been brought pursuant to § 9-329a of the General Statutes, it must be considered to be such a hearing because of the timing involved, the nature of the proceedings and the relief sought. The plaintiff disagrees. I rather doubt that the matter was intended to be guided by principles applicable to § 9-329a, but for purposes of completeness and, indeed, logic, I will for the moment apply the principles applicable to § 9-329a hearings.
If such principles are applied, it is clear that no relief can be afforded the plaintiff. The language of § 9-329a, repeated in full in a prior footnote, fairly clearly limits the issues available for review. If the statutory language does not dispose of the matter, the case law arising from the statute dispels any doubt. In Wrinn v. Dunleavy, 186 Conn. 125, 134 n. 10 (1982), our Supreme Court has stated quite unequivocably that § 9-329a, in its providing for greatly expedited proceedings, is limited in scope to rulings of the election officials. "A plaintiff may not use these sections to challenge a law or regulation under which the election or primary election is held by claiming aggrievement in the election official's obedience to the law. In such a case the plaintiff may well be aggrieved by the law or regulation, but he or she is not aggrieved by the election official's rulings which are in conformity with the law." Id. The policy consideration for the limitation is that the statute creates a limited statutory hearing, with the benefit of speed and the detriment of a narrow scope. In Scheyd v. Bezrucik, 205 Conn. 495, 505-06 (1987), our Supreme Court reaffirmed the principle:
The legislature might reasonably have opted for speedy adjudication of disputes about technical violations of election laws on the theory that identification and rectification of such mistakes is ordinarily not a matter of great complexity. Constitutional adjudication, by contrast, requires study and reflection and may therefore, as a general matter, be deemed less appropriate for accelerated disposition.
I find that the finding of the commission was substantially correct and, in combination with the Secretary of State's ruling to the effect that the statutes require a circulator to be an enrolled party member at the time of the circulation, I find that there is no serious question but that the election officials properly applied state law to the dispute. Viewed as a matter brought pursuant to § 9-329a, then, the relief requested is appropriately denied.
The rulings of the Secretary of State on election matters are entitled to great weight. See § 9-3 of the General Statutes.
Section 9-410 of the General Statutes clearly provides that the registrar is to reject signatures if the circulator is not an enrolled party member.
IV. Consideration as a Preliminary Injunction Pursuant to Civil Rights Law
The action purports to be a federal civil rights action, and injunctive relief is requested. The general test for the issuance of a preliminary injunction pursuant to federal law is that the applicant must establish that it is subject to irreparable harm and that either she will likely succeed on the merits or that there are sufficiently serious questions going to the merits of the case to make them fair ground for litigation, and that a balance of hardships "decidedly" tips in favor of the moving party. "If the injunction sought would stay government action taken in the public interest pursuant to a regulatory scheme, the movant must meet the more rigorous `likelihood of success' prong." Gateway 2000 Country Stores v. Norwalk Zoning Board, 13 F.Sup.2d 247, 251 (D.Conn. 1998).
Several observations are appropriate in the context of the consideration of a preliminary injunction. First, the complaint has been filed for less than a week as I write this decision. Pleadings have not framed the issues. There of course has been no discovery. It is not at all clear that all proper parties have been notified. See § 9-329a; see, by strong analogy, § 17-56(b) of the Practice Book (notice to be provided to all interested persons in declaratory judgment actions). I will, however, briefly address the issues.
The complaint alleges a denial of due process because there was no opportunity for a hearing or prior notice regarding the decertification. That claim has not been strenuously advanced in argument; indeed, we just concluded hearings. It is black letter law that in many instances post-deprivation hearings are all the process that is due, and there has been ample opportunity for post-deprivation hearing on the issue of whether the election officials properly applied state law.
The thrust of the plaintiff's position at this point is that the requirement of § 9-410 that a circulator be an enrolled party member is unconstitutional. This claim was not specifically pleaded, and ordinarily a party may not prevail on a claim not pleaded. See Toccaline v. Commissioner of Correction, 80 Conn.App. 792, 818 (2004). In this instance the consideration is especially compelling: the requested relief may not be granted unless I, in effect, find a statutory requirement unconstitutional. Although there is indeed some merit, in a vacuum, to the position of the plaintiff regarding the requirement of party enrollment, and in a proper case the requirement may well be declared to be violative of principles enunciated in Buckley. Alternatively, the legislature may wish to address the issue.
Similar requirements regarding the qualifications of circulators of petitions, as opposed to those signing petitions, have been struck down as unduly restricting rights of free speech and association. See, e.g., Buckley v. ACLF, Inc., 525 U.S. 182 (1999), and cases cited therein. In Campbell v. Bysiewicz, 242 F.Sup.2d 164 (D.Conn. 2003), Judge Dorsey invalidated the residency requirement for petition circulators. The reasoning, reduced to its essentials, is that such requirements limit the ability of people to participate in public affairs and of candidates to campaign. If such limitations are to pass constitutional muster, there must be a commensurate level of state interest in such regulation. If a regulation significantly advances the interest of the state by helping to ensure fair and honest elections, then such a limitation may be upheld even if the exercise of First Amendment rights is somewhat constrained. The converse is also true, and a balancing test is now the standard.
There further is the issue of standing to address the enrollment requirement. In cases such as Buckley and Campbell, there are persons whose rights have been infringed by operation of the statutory limitation, in the sense that petitioners testified that they desired to pursue certain activities, but were unable to do so because of the statutory limitations. In Buckley, for example, people wished to circulate petitions but balked at the identification procedures, or were deterred entirely by the residency requirements. In the case at hand, there is no plaintiff who wishes to circulate petitions but is unable to do so because he is not a party member; rather, Mr. Villanueva sought to be a party member but did so too late. Thus no party seeks a declaratory judgment on principle. Rather, the possible constitutional infirmity is seen as a lifeline to the ballot rather than as a significant issue in itself.
The direct constitutional injury in this case, if any, is to the voters who signed Mr. Villanueva's petitions. They, to a degree, have been disenfranchised by the inadvertent failure to register and then to sign the registration card. In Flanagan v. Hynes, 75 Conn. 584 (1903), disenfranchisement by virtue of an insignificant technicality was disfavored. In Flanagan, however, the infirmity was that the word "Democratic" had been placed on the ballots for both candidates in a primary election, where only one had actually been properly endorsed. That defect is apparently different from the scheme in question here, where state statute specifically directs that petitions be rejected if the circulator is not an enrolled party member.
In any event, in the present posture of the case I find that a preliminary injunction should not issue. Although I do find irreparable harm on the part of Ms. Villanueva, I also find that the state statute which is sought to be overturned is part of a regulatory scheme whose overall goal is to promote regularity and rigorously honest elections. As such, the plaintiff has the burden to show a strong likelihood of success on the merits. In the present stance, I cannot make that finding because the issue has not been pleaded, there may be significant standing issues, notice has not been afforded all interested parties, and there are policy considerations militating against deciding constitutional issues virtually overnight. An injunction would interfere with the processes of government which are statutorily charged with addressing the issues. And finally, although a serious issue is raised by the enrollment requirement, there may be compelling reasons offered at some point for its continuing validity. Although the issue is a close one, I find that on balance a preliminary injunction should not issue.
lndeed, this court may not declare a statute unconstitutional unless it is so convinced beyond a reasonable doubt. Aunt Hack Ridge Estates, Inc. v. Planning Comm., 160 Conn. 109, 112 (1970).
One cannot effectively grant the relief requested by the plaintiff without declaring the statutory provisions unconstitutional.
Even if Scheyd and Wrinn are not directly controlling, the common sense observations therein are nonetheless germane.
We know, for example, that political parties have considerable leeway as to how they will conduct their affairs and who may participate in primaries, and that state statutes may legitimately impose qualifications and limitations on participation. See, e.g., Rosario v. Rockefeller, 410 U.S. 752 (1973). Similar limitations on party enrollment for circulators may perhaps be found to serve a legitimate purpose.
At this point, that is the only issue before me.
Beach, J.