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INDEPENDENT PARTY OF CT—STATE CENTRAL ET AL. v . DENISE W. MERRILL, SECRETARY OF THE STATE, ET AL.
(SC 20165) Robinson, C. J., and Palmer, Mullins, Kahn, Ecker and Vertefeuille, Js.
Syllabus Pursuant to statute (§ 9-372 [6]), ‘‘ ‘[m]inor party’ means a political party or
organization which is not a major party and whose candidate for the office in question received at the last-preceding regular election for such office . . . at least one per cent of the whole number of votes cast for all candidates for such office at such election . . . .’’ Pursuant further to statute (§ 9-374), ‘‘no authority . . . having jurisdiction over the conduct of any election shall permit the name of a candidate
of [a minor] party for any office to be printed on the official ballot unless at least one copy of the party rules regulating the manner of nominating a candidate for such office has been filed in the office of the Secretary of the State at least sixty days before the nomination of such candidate,’’ and those ‘‘[p]arty rules shall not be effective until sixty days after [their] filing . . . .’’
The plaintiffs, a faction of this state’s Independent Party based in Danbury
and its officers, brought the present action seeking, inter alia, a judgment declaring that the statewide Independent Party is governed by a set of bylaws drafted in 2006 and not, as claimed by the defendants T and R, the officers of another faction of this state’s Independent Party based in Waterbury, a separate set of bylaws drafted in 2010. In 2003, T and certain other individuals formed the Waterbury faction for the purpose of endorsing candidates for municipal elections. In 2006, the head of the Danbury faction of this state’s Independent Party, F, joined with T in order to petition for statewide offices but failed to obtain a sufficient number of signatures to gain access to the ballot. Later that year, F and L, together with one other person, filed a set of bylaws with the named defendant, the secretary of the state, along with a form designating themselves as officers of the State Central Committee of the Independent Party of Connecticut. In 2008, F and T again joined together, this time with the goal of supporting the candidacy of Ralph Nader for president of the United States. In order to accomplish this, F and T filed a form with the secretary of the state designating themselves as the agents of the Independent Party and agreed to the creation of a new set of state- wide bylaws. After Nader received greater than one percent of the votes cast in the 2008 presidential election, the secretary of the state certified the Independent Party as a statewide minor party pursuant to § 9-372 (6). T, along with one other person, subsequently drafted a new set of bylaws, which was later unanimously ratified in a publicly noticed meet- ing of registered Independent Party members in 2010. F received an advance copy of the proposed bylaws, attended that meeting, and did not object to them. The 2010 bylaws were then filed with the secretary of the state, and no objection was received within the sixty day period required under § 9-374. After a dispute in 2012, the Waterbury faction filed a separate action seeking placement of its candidates on the ballot in the general election but then withdrew its action after the trial court denied its motion for a temporary order of mandamus. Notwithstanding that separate action, the 2010 bylaws were used to govern caucuses, the nomination of candidates, and the election of party officers from 2010 to 2014 without objection by the plaintiffs. In 2016, the Danbury and Waterbury factions held separate events for the purpose of nominating Independent Party candidates, and, when competing nominations were made, the secretary of the state declined to accept either nomination for placement on the ballot. On the eve of trial in the present case, T and R filed a motion for permission to amend their answer and assert a counterclaim seeking a judgment declaring that they were the rightful officers of the Independent Party, along with certain special defenses alleging, inter alia, that the plaintiffs had waived their right to contest *3 the 2010 bylaws. The trial court granted T and R’s motion following the close of evidence. Shortly before a memorandum of decision was due pursuant to the statute (§ 51-183b) requiring trial judges to render judg- ment within 120 days of the date that the trial concluded, the trial court requested a sixty day extension from the parties. The plaintiffs objected to that request, and, shortly thereafter, the trial court ordered supplemen- tal briefing and arguments regarding whether the court had subject matter jurisdiction over the case. The trial court subsequently issued a written memorandum of decision in which it concluded that it had jurisdiction and found the facts in favor of T and R on the both the complaint and the counterclaim. In reaching its conclusion, the trial court rejected the plaintiffs’ argument that the 2012 decision denying the request for a temporary order of mandamus was entitled to preclusive effect. The trial court further found that T and R had proven, by a preponderance of the evidence, that the plaintiffs have waived any right they may have had to challenge the validity of the 2010 bylaws. The trial court rendered judgment for the defendants and ordered the secretary of the state to accept only those candidate endorsements made pursuant to the 2010 bylaws. From that judgment, the plaintiffs appealed. Held : 1. The trial court issued a timely memorandum of decision under § 51-183b, and, accordingly, that statute did not operate to deprive the trial court
of personal jurisdiction over the parties; notwithstanding the plaintiffs’ objection to the trial court’s request for an extension, the trial court’s order requiring supplemental briefing and arguments to address a color- able issue pertaining to subject matter jurisdiction, which was issued before the 120 day decision period lapsed, had the effect of stopping the decision period and restarting it after supplemental arguments were heard. 2. The trial court properly determined that, under § 9-374, the 2010 bylaws
were the effective party rules of the statewide Independent Party; although there was nothing in the language of § 9-374 that would have expressly precluded the filing of party rules before Nader received 1 percent of the vote as a statewide candidate in 2008, other related statutory provisions, including the statutory definition of ‘‘minor party’’ set forth in § 9-372 (6), indicated that the Independent Party did not exist as a minor party for purposes of state election law until 2008, and, therefore, the 2006 bylaws simply had no effect with respect to the obligations of the secretary of the state. 3. The trial court properly declined to give preclusive effect to the decision denying the Waterbury faction’s motion for a temporary order of manda-
mus in the 2012 action; that decision, which was based on a finding that the Independent Party did not follow the amendment procedures provided in the 2006 bylaws in adopting the 2010 bylaws, did not consti- tute a final judgment under the doctrine of res judicata or collateral estoppel, as it was issued on an expedited basis and specifically empha- sized that it was tentative in nature and not a final judgment on the merits. 4. The trial court’s factual finding, made in connection with the defendants’ special defense of waiver, that the plaintiffs had waived any objection to the use of the 2010 bylaws to govern Independent Party proceedings
was not clearly erroneous; there was ample evidence in the record to support the trial court’s factual finding, as the trial court properly cred- ited evidence that T and F actively worked together to form a statewide party in 2008, filed joint forms on behalf of the Independent Party, and discussed the proposed 2010 bylaws, which were later unanimously adopted, filed with the secretary of the state, and used without objection by the plaintiffs. 5. The plaintiffs could not prevail on their unpreserved constitutional claim
that the trial court’s decision improperly interfered with the Independent Party’s right to choose its own candidates, as the plaintiffs induced the claimed error by naming the secretary of the state as a defendant and seeking an order mirroring the relief ultimately awarded. 6. The trial court did not abuse its discretion in granting T and R’s late
request to amend their answer, as that amendment did not prejudice the plaintiffs; the plaintiffs did not claim that they would have litigated the case differently if the court had not permitted the amendment, that they were deprived of the time necessary to respond to the amendment, or that the amended answer confused the issues in the case. Argued October 19, 2018—officially released February 19, 2019
Procedural History *4 Action for a judgment declaring, inter alia, that cer- tain bylaws are the validly adopted and currently effec- tive party rules of the statewide Independent Party, and for other relief, brought to the Superior Court in the judicial district of Hartford, where Michael Duff was substituted as a plaintiff and the defendant Michael Telesca et al. filed a counterclaim; thereafter, the case was tried to the court, Hon. A. Susan Peck , judge trial referee, who, exercising the powers of the Superior Court, rendered judgment for the defendants on the complaint and for the defendant Michael Telesca et al. on the counterclaim, and the plaintiffs appealed. Affirmed .
Eliot B. Gersten , with whom was Johanna S. Katz , for the appellants (plaintiffs).
Maura Murphy Osborne , assistant attorney general, with whom, on the brief, was George Jepsen , former attorney general, for the appellee (named defendant).
William M. Bloss , with whom were Alinor C. Sterling and Emily B. Rock , for the appellees (defendant Michael Telesca et al.).
Opinion ROBINSON, C. J. This appeal is the latest battle in the war for control over the state’s Independent Party between its Danbury faction, which is led by the plain- tiffs, the Independent Party of CT—State Central and its officers, Michael Duff, Donna L. LaFrance, and Roger Palanzo, [1] and its Waterbury faction, which is led by two of the defendants, Michael Telesca and Rocco Frank, Jr. The plaintiffs appeal [2] from the judgment of the trial court, rendered after a bench trial, for Telesca and Frank on the complaint and the counterclaim in the present action, which both sought declaratory and injunctive relief. Specifically, the trial court ordered the named defendant, Secretary of the State Denise W. Merrill, [3] to accept candidate endorsements made pursuant to the Independent Party’s 2010 bylaws (2010 bylaws), which, in effect, gave the Waterbury faction control over the Independent Party’s statewide nomina- tions. There are two principal issues among the plain- tiffs’ plethora of claims in the present appeal. First, we consider whether the trial court’s order of supplemental briefing and oral argument concerning its subject mat- ter jurisdiction, issued just prior to the 120 day decision deadline pursuant to General Statutes § 51-183b, [4] and after the plaintiffs’ objection to the trial court’s request for an extension, preserved its personal jurisdiction over the parties by stopping and later restarting the decision period. The second principal issue is whether the trial court properly determined that General Stat- utes § 9-374, which requires the filing of party rules before the name of a candidate endorsed by a minor political party may be printed on an election ballot, rendered the 2010 bylaws controlling, as opposed to bylaws that the Danbury faction had filed with the Sec- retary in 2006 (2006 bylaws) prior to the Independent Party’s receiving the 1 percent of statewide votes neces- sary to confer minor party status. Because we conclude that the order of supplemental briefing and argument opened the 120 day decision period and later restarted it, thus rendering the trial court’s decision timely under § 51-183b, and also conclude that the trial court properly construed § 9-374, we affirm the judgment of the trial court. [6]
The record reveals the following relevant facts, as found by the trial court, and procedural history. The genesis of the current Independent Party dates to 2003, when Telesca and others formed the Waterbury Inde- pendent Party (Waterbury party), ‘‘to run candidates for local office as an alternative to the major parties.’’ The Waterbury party ‘‘endorsed a full slate of candidates for municipal elections in Waterbury and [saw] eight people [elected] to office, each of whom received more than 1 percent of the vote in [his or her] individual [race]. Because the candidates received at least 1 per- cent of the vote in each of those races, the Waterbury *6 [party] was eligible for minor party status for those offices. Thereafter, Waterbury electors could register as Independent Party members for local elections. After the 2003 Waterbury municipal elections, the [Secretary] sent a letter to the Waterbury [party] requesting that it submit party rules. In 2004, the Waterbury [party] drafted bylaws on how to conduct caucuses and created a nominating process for future races. Telesca’s goal was to build a new statewide third party to help people get ballot access around the state. The Waterbury [party] bylaws were filed with the [Secretary and the] Waterbury town clerk . . . .’’
‘‘In 2004, the Waterbury [party] decided to run candi- dates in races for state representative and state [sena- tor] in the Waterbury area. . . . Around this time, Telesca learned about a separate Independent Party that had been formed in Danbury headed by [Robert] Fand that had reserved the name [‘Independent Party for the 30th Senate District’ (Danbury party)]. Because the Danbury [party] had already reserved the party des- ignation of Independent Party for the 30th Senate Dis- trict, the Waterbury [party] was not allowed to nominate a candidate for that election. In 2004, Telesca and Fand reached an agreement that the Waterbury [party] would not operate in Danbury and the Danbury [party] would not operate in Waterbury. . . .
‘‘In 2006, the Waterbury [party] attempted to reserve the name ‘Independent Party’ statewide but was not able to do so because there were local parties using the name ‘Independent’ in both Danbury and Waterbury. The [Secretary] would not allow two different parties with any part of the same name on the ballot at the same time. In 2006, Telesca and [his colleague, John] Mertens learned from the [Secretary] that they needed to get the local independent parties to come together in order to . . . petition for statewide offices. In 2006, Telesca and Fand joined together and signed and filed a form [ED-601 with the Secretary] as members of the Independent Party Designation Committee, but they failed to obtain enough signatures to get ballot access for any statewide office. As a result, there was no state- wide minor party established in that year. . . .
‘‘In September 2006, Fand, [John L.] Dietter, and LaFrance filed a form ED-48 with the [Secretary] desig- nating themselves as the three members of the party committee for the ‘Independent Party of CT—State Cen- tral.’ . . . At the same time, these individuals filed the 2006 bylaws, which consisted of one page [entitled] ‘Party Rules Amended.’ . . . The introductory para- graph of those rules states that the committee ‘adopts the following rules for the establishment of local com- mittees and nomination of candidates.’ . . . The final paragraph of the 2006 bylaws . . . indicates that the rules were passed unanimously at the meeting of the ‘State Central Committee of the Independent Party of *7 Connecticut on [September 27, 2006],’ and is signed by . . . Dietter [as] Chairman . . . LaFrance [as] Trea- surer, and . . . Fand [as] Deputy Treasurer . . . .’’ (Citations omitted; footnote added.)
‘‘In 2008, Fand and Telesca [again] joined together to create a statewide Independent Party. There were other Independent Party chapters in the state at this time, including ones in Winsted and Milford. Telesca assisted those chapters by providing information regarding the election process. The immediate goal in 2008 was to run Ralph Nader as a candidate for presi- dent . . . and achieve 1 percent of the vote, which would establish the Independent Party as a statewide minor party. See General Statutes § 9-372 (6). In a joint effort to accomplish this goal, Telesca and Fand both signed and filed [a] form ED-601 . . . as the designated agents of the Independent Party. The form designated the name Independent Party not only for president, vice president, and electors, but also for state senate districts 24, 28, and 11, state assembly districts 110 and 96, United States congressmen for the third and fifth districts, and for several registrar of voters and probate judge races.’’ (Footnote added.)
The trial court credited Telesca’s testimony that, ‘‘because there were different rules for the various local parties in the state who controlled the Independent Party line for their localities, he and Fand agreed that they would need to create a new set of bylaws to accom- plish their joint goal of creating a statewide minor party. Without a statewide party, a local Independent Party could oppose a statewide candidate for any office by reserving the same or a similar party designation for [its town]. Running . . . Nader for president provided a clear path toward garnering 1 percent of the vote and establishing a statewide minor party. Once Nader achieved over 1 percent of the vote in the 2008 presiden- tial election, the [Secretary] certified the Independent Party as a minor party and notified all town registrars of voters of the Independent Party’s new status as a statewide minor party. . . . Subsequently, anyone in the state could register to vote as a member of the Independent Party.
‘‘Following the 2008 election, Telesca and Mertens drafted bylaws for the new statewide party. Telesca sent out [between] 700 [and] 800 postcards about a meeting to be held on March 20, 2010, concerning pro- posed bylaws to any registered member of the Indepen- dent Party who had voted in the last two elections. Mertens created a website and posted the proposed bylaws on it months in advance of the meeting. Telesca put an advertisement in the Hartford Courant announc- ing the meeting/caucus and gave advance notice to the [Secretary]. Telesca also sent Fand a postcard and gave him a copy of the proposed bylaws before the meeting, which Fand acknowledged. Telesca and [his colleague *8 Mary] Iorio met with Fand about the bylaws for the new statewide party before the meeting was held.
‘‘On March 20, 2010, the Independent Party held a meeting in Waterbury of registered Independent Party members from around the state to ratify the [2010] bylaws for the new statewide party. At the meeting, Fand did not object either to the meeting, the idea of creating bylaws for the new statewide party, or the bylaws themselves, [and also did not] request any changes to the [2010] bylaws as proposed. There was an agenda for the meeting and a sign-up sheet. Only registered Independent Party members were allowed to vote on the [2010] bylaws. The vote to approve the bylaws was unanimous. The [2010] bylaws were filed with the [Secretary] on March 22, 2010 . . . . No objec- tions were filed with the [Secretary] within sixty days of the filing date.’’ (Citation omitted.)
‘‘A caucus was held on August 21, 2010, to nominate Independent Party candidates for placement on the November 2, 2010 ballot. The 2010 bylaws were used to guide the nomination process at the caucus. The Independent Party got ballot access for statewide offices in 2010 by going through the petitioning process for candidates and by filing a form ED-601 . . . . The purpose of the caucus was to endorse candidates for certain offices and to ratify endorsements for other offices that had been made through the petitioning pro- cess. At a meeting held on August 21, 2010, immediately prior to the caucus, Telesca was authorized to preside over the statewide caucus, file all paperwork regarding the upcoming state elections, and to act as the agent and acting chairman of the Independent Party.
‘‘Following the caucus, a document confirming the nominations and endorsements of the statewide Inde- pendent Party candidates for the 2010 election was filed with the [Secretary]. The document was signed by Telesca as presiding officer of the caucus, and LaFrance and Fand as agents of the Independent Party. . . . At the time, Fand and LaFrance constituted two-thirds of the [Independent Party of CT—State Central]. The [Sec- retary] subsequently approved a revised list of nomin- ees on September 8, 2010. . . . All of the candidates were nominated pursuant to the 2010 bylaws. The new statewide Independent Party subsequently published a political advertisement showing its endorsed candi- dates for the 2010 election. . . .
‘‘[On the basis of] the evidence presented at trial, in the 2010 election cycle, there was no conflict between the Waterbury and Danbury factions of the Independent Party.’’ (Citations omitted.) Indeed, the trial court also found that there ‘‘was no evidence of conflict between the Waterbury and Danbury factions in the 2008, 2009, 2010, or 2011 election cycles. The 2006 bylaws were not used by the Independent Party to nominate anyone for president in 2008 or for statewide office in 2008, *9 2010, 2012, or 2014. The Danbury faction did not object to the caucuses held pursuant to the 2010 bylaws to nominate candidates for statewide office in either 2010 or 2012. On June 10, 2012, the Independent Party held a caucus to elect the officers of the statewide party.’’
The conflict between the factions that led to litigation first developed in early 2012, when ‘‘Fand invited Tel- esca to a meeting with Danbury mayor Mark Boughton in an effort to gain Telesca’s support for Boughton as the endorsed candidate of the Independent Party [for governor]. Boughton hoped to run for governor as the next nominee of the Republican Party. Telesca refused to give Fand his assurance, as chairman of the Indepen- dent Party, that he would endorse Boughton for gover- nor and informed Fand that the Independent Party’s endorsement of candidates was up to the party member- ship, not him. After that meeting, Telesca and Fand’s relationship soured.
‘‘Because Nader received more than 1 percent of the vote in 2008 presidential election, the Independent Party was able to nominate and endorse a candidate for the 2012 presidential election without having to go through the petitioning process. On August 21, 2012, the Independent Party held a caucus, conducted pursuant to the 2010 bylaws, to nominate and endorse a presidential candidate for 2012. The votes were limited to Indepen- dent Party members. At the caucus, Rocky Anderson was selected as the presidential nominee of the Indepen- dent Party. Although the 2006 bylaws reserved the right of the Danbury faction to make the Independent Party’s nomination for president, the nomination for president was decided at the August 21, 2012 caucus [pursuant to] the 2010 bylaws without objection. Because Anderson failed to garner at least 1 percent of the vote for presi- dent, the Independent Party lost its presidential ballot line for the 2016 presidential election.
‘‘In 2014, the Independent Party held a statewide cau- cus and nominated candidates pursuant to the 2010 bylaws. No one objected to the use of the 2010 [bylaws] for Independent Party nominations in the 2014 state- wide elections. In 2015, local Independent Party chap- ters nominated candidates for municipal elections. In 2016, the Danbury faction and the Waterbury faction nominated different candidates for the Independent Party’s state senate endorsement for one particular race. On August 23, 2016, the Danbury faction held an endorsement event at which nominations for president, vice president, United States Senate, United States House of Representatives, state senate and state [house] were made and thereafter filed with the [Secre- tary]. Notice of the meeting was given pursuant to Gen- eral Statutes § 9-452a. . . . Telesca attended that endorsement meeting and voted no without comment when the nominees were presented for a vote. Telesca did not challenge how Duff, the presiding officer, con- *10 ducted the meeting. Nor did Telesca challenge anyone’s right to vote at the meeting. Telesca filed a complaint with the State Elections Enforcement Commission against the current members of the [Danbury faction], Duff, LaFrance, Palanzo and others. The [Waterbury faction] also selected nominees at an event noticed for that purpose which were also filed with the [Secretary]. Where there were competing nominations, the [Secre- tary] did not accept either nomination for placement on the ballot. A major point of contention between the two factions is that the Waterbury faction believes that the Danbury faction is merely a proxy for the Repub- lican Party and not truly representative of the Inde- pendent Party.’’ (Citation omitted; footnote omitted; internal quotation marks omitted.)
The plaintiffs then brought the present action for declaratory and injunctive relief, which is the latest in a line of lawsuits arising from the conflict between the Waterbury and Danbury factions. [9] The case was tried to the court, Hon. A. Susan Peck , judge trial referee, on October 11, 17, and 18, 2017, with posttrial oral argument on March 23, 2018. Following supplemental briefing and oral argument with respect to whether the political question doctrine deprived the trial court of subject matter jurisdiction over this case, on August 21, 2018, the trial court issued a lengthy memorandum of decision in which it concluded that it had subject matter jurisdiction over this case [10] and rendered judg- ment for the defendants on the complaint.
With respect to its specific findings of fact and conclu- sions of law, the trial court first concluded as a matter of statutory interpretation that the 2010 bylaws were controlling under the statutory scheme governing minor parties, in particular §§ 9-374 and 9-372 (6), the ‘‘plain language of [which] indicates that a minor party does not exist in Connecticut until it designates a candidate for office who achieves 1 percent of the vote.’’ The trial court further observed that, in contrast to the 2010 bylaws, which were created in a statewide process after Nader’s nomination in 2008, the 2006 bylaws were filed with the Secretary at a time when ‘‘the party so-named had not achieved minor party status for any statewide office.’’ Thus, the trial court determined that the ‘‘2006 bylaws are valid only to the extent they are recognized as such within the local committee. Although the plain- tiffs filed the 2006 bylaws with the [Secretary], the filing of these rules merely allowed the [Danbury faction] to nominate local candidates and get them on an official ballot once they had attained 1 percent of the vote for a particular office. The 2006 bylaws did not automatically allow the [Danbury faction] to gain control of the state- wide Independent Party after the 2008 presidential elec- tion.’’ (Footnote omitted.) Accordingly, the trial court concluded that ‘‘the only statewide Independent Party was created post-2008, and the 2010 bylaws are the only valid governing rules of that party.’’ [12]
The trial court also rejected the plaintiffs’ additional arguments about why the 2006 bylaws should be consid- ered controlling. With respect to those relevant to this appeal, the trial court first considered the plaintiffs’ conduct subsequent to the adoption of the 2010 bylaws and concluded that ‘‘the defendants have established by a preponderance of the evidence submitted in this case [their special defense alleging] that the plain- tiffs have waived any right they may have had to chal- lenge the validity of the 2010 bylaws.’’ The trial court also rejected the plaintiffs’ contention that a 2012 deci- sion issued by Judge Mark H. Taylor in Independent Party of Connecticut Dietter , Superior Court, judi- cial district of Waterbury, Docket No. CV-12-5016387-S (September 28, 2012) (2012 Waterbury action), which had concluded ‘‘that the 2006 bylaws were the validly adopted Independent Party rules,’’ was entitled to preclusive effect in the present case. The trial court reasoned that the 2012 Waterbury action was distin- guishable because it did not concern statewide office, addressed only ‘‘a motion for a temporary order of man- damus, and . . . was [subsequently] withdrawn.’’
Accordingly, the trial court concluded that the plain- tiffs ‘‘failed to establish by a preponderance of the evi- dence that they are entitled to the declaratory and injunctive relief requested in their second amended complaint,’’ which would have given them control over the Independent Party. Instead, the trial court con- cluded that ‘‘the defendants . . . have established by a preponderance of the evidence that the 2010 bylaws are the validly adopted and operative bylaws of the Independent Party/Independent Party of Connecticut, filed pursuant to the requirements of § 9-374, and that [Telesca and Frank] are the duly elected officers of the Independent Party/Independent Party of Connecticut, and the individual plaintiffs are not. In addition, the court hereby declares that the 2006 bylaws apply only to the Danbury faction’s local committee of the Indepen- dent Party. Finally, the court hereby declares and orders that the [Secretary] must accept only the nominations and endorsements of the Independent Party/Indepen- dent Party of Connecticut, made pursuant to the 2010 bylaws filed with the [Secretary] on March 22, [2010], or as may be amended, pursuant to . . . § 9-374.’’ According to the plaintiffs, this order effectively ‘‘gives the Waterbury faction, under the leadership of Telesca and Frank, control of the statewide ballot line.’’ This expedited appeal followed. See footnote 2 of this opinion.
On appeal, the plaintiffs claim that the trial court (1) lost personal jurisdiction over this case when it failed to render judgment within 120 days as required by § 51- 183b, (2) improperly construed § 9-374 in concluding that the 2010 bylaws are controlling, (3) improperly declined to give preclusive effect to Judge Taylor’s deci- *12 sion in the 2012 Waterbury action, (4) committed clear error in finding that they had waived their objections to the 2010 bylaws, (5) crafted an order that violated their constitutional rights, and (6) abused its discretion in permitting the defendants to amend their answer to assert special defenses and counterclaims. Additional relevant facts and procedural history will be set forth in the context of each of these claims as necessary.
I
WHETHER § 51-183B DEPRIVED THE TRIAL
COURT OF PERSONAL JURISDICTION
Relying primarily on
Foote Commissioner of Cor-
rection
,
The record reveals the following additional relevant facts and procedural history. On July 17, 2018, four days before the trial court’s decision was due pursuant to § 51-183b, the trial court left voice mail messages for the parties, requesting a sixty day extension to issue the decision and asking them to file certain additional proposed orders. On July 18, 2018, the defendants filed proposed orders and did not comment as to timeliness. That same day, the plaintiffs filed a response declining to submit additional filings and refusing to waive the 120 day decision deadline, stating that a decision was needed to facilitate plans for the 2018 elections in light of the upcoming September 5, 2018 nomination filing *13 deadline pursuant to General Statutes § 9-452. On July 19, 2018, the trial court issued an order directing the parties to brief the question of whether the court had subject matter jurisdiction over the case under, inter alia, the political question doctrine, and to appear for oral argument on that issue on August 3, 2018. Following oral argument, on August 21, 2018, the trial court issued a comprehensive memorandum of decision addressing both the jurisdictional issue and the merits of the vari- ous claims made by the parties.
At the outset, we note that the plaintiffs’ claim con-
cerns the application of the case law interpreting § 51-
183b to the undisputed facts, which raises a question
of law over which our review is plenary. See, e.g.,
Tom-
linson
v.
Tomlinson
,
‘‘[I]n past cases interpreting § 51-183b and its prede-
cessors, we have held that the defect in a late judgment
is that it implicates the trial court’s power to continue
to exercise jurisdiction over the parties before it. . . .
We have characterized a late judgment as voidable
rather than as void . . . and have permitted the late-
ness of a judgment to be waived by the conduct or the
consent of the parties. . . . [A]n unwarranted delay
in the issuance of a judgment does not automatically
deprive a court of personal jurisdiction. Even after the
expiration of the time period within which a judge has
the power to render a valid, binding judgment, a court
continues to have jurisdiction over the parties until
and unless they object. It is for this reason that a late
judgment is merely voidable, and not void.’’ (Citation
omitted; internal quotation marks omitted.)
Foote
v.
Commissioner of Correction
, supra, 125 Conn. App.
300–301, quoting
Waterman
v.
United Caribbean, Inc.
,
supra,
The ‘‘completion date’’ of trial, for purposes of start-
ing the 120 day period, includes the filing of briefs and
completion of oral argument because ‘‘briefing of the
legal issues [is] a component of the judicial gathering
of the materials necessary to a well reasoned decision.
In related contexts, ‘completion’ has been held to
encompass the availability of all the elements directly
or indirectly to be considered in the rendering of a
decision.’’
Frank Streeter
,
Our decision in
Commission on Human Rights &
Opportunities ex rel. Arnold
v.
Forvil
, supra, 302 Conn.
263, controls the plaintiffs’ claim in the present appeal.
In that case, we followed the Appellate Court’s decision
in
Statewide Grievance Committee
v.
Ankerman
, 74
Conn. App. 464, 470,
The plaintiffs’ reply brief relies, however, on
Water-
man United Caribbean, Inc.
, supra,
Second, beyond the trial court’s inherent discretion
to seek supplemental briefing and argument on factual
*15
or legal issues in the case, the plaintiffs’
Waterman
argument, insofar as it concerns the trial court’s deci-
sion to raise a colorable question of subject matter
jurisdiction, squarely conflicts with the axiom that ques-
tions about subject matter jurisdiction issues may be
raised at
any
time, including by the court, sua sponte,
and on appeal. See, e.g.,
Angersola Radiologic Associ-
ates of Middletown, P.C.
,
In the present case, we conclude that the trial court’s order requiring supplemental briefing stopped the 120 day decision period, which then restarted after supple- mental arguments were heard, thus rendering the trial court’s decision in this case timely under § 51-183b, notwithstanding the plaintiffs’ earlier refusal to consent to the requested extension. Accordingly, § 51-183b did not operate to deprive the trial court of the personal jurisdiction over the parties required to decide this case.
II WHETHER § 9-374 RENDERS THE 2010 BYLAWS CONTROLLING We next address the second principal issue in this appeal, namely, whether the trial court improperly con- strued § 9-374 in concluding that the 2010 bylaws, filed after Nader’s tally of 1 percent of the vote in the 2008 election afforded the Independent Party statewide sta- tus for the first time, were controlling over the 2006 bylaws previously filed by the Danbury faction. The plaintiffs argue that the trial court’s construction of § 9- 374 has the effect of improperly supplying nonexistent statutory language because, as enacted by the legisla- ture, the statute ‘‘contains no requirement’’ that a party refile its bylaws with the Secretary ‘‘upon achieving minor party status.’’ The plaintiffs rely on ‘‘[p]ublic pol- icy and common sense,’’ arguing that the trial court’s construction of the statute ‘‘would create a burdensome and tedious exercise for minor parties that the statutory scheme does not anticipate [or] facilitate,’’ insofar as it would require that ‘‘new bylaws . . . be filed every time the Independent Party wins new minor party status *16 for a given office . . . .’’ In response, the defendants contend that, under General Statutes § 1-2z, the court’s construction of § 9-374 must consider the definition of minor party in a related statute, § 9-372 (6), and that, because the Independent Party did not receive 1 percent of the vote until 2008, ‘‘[n]o matter how the plaintiffs styled it, the 2006 filing was not the filing of a statewide minor party.’’ We agree with the defendants and con- clude that, under § 9-374, the 2010 bylaws govern the statewide Independent Party.
Whether § 9-374 renders the 2010 bylaws controlling
‘‘presents a question of statutory construction over
which we exercise plenary review. . . . When constru-
ing 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 rea-
soned manner, the meaning of the statutory language
as applied to the facts of [the] case, including the ques-
tion of whether the language actually does apply. . . .
In seeking to determine that meaning .
.
. § 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 mean-
ing 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. . . . When a statute is not plain and unam-
biguous, we also look for interpretive guidance to the
legislative history and circumstances surrounding its
enactment, to the legislative policy it was designed to
implement, and to its relationship to existing legislation
and common law principles governing the same general
subject matter . . . . The test to determine ambiguity
is whether the statute, when read in context, is suscepti-
ble to more than one reasonable interpretation.’’ (Inter-
nal quotation marks omitted.)
Marchesi Board of
Selectmen
,
Beginning with the statutory text, § 9-374 provides in relevant part: ‘‘In the case of a minor party, no authority of the state or any subdivision thereof having jurisdic- tion over the conduct of any election shall permit the name of a candidate of such party for any office to be printed on the official ballot unless at least one copy of the party rules regulating the manner of nominating a candidate for such office has been filed in the office of the Secretary of the State at least sixty days before the nomination of such candidate. In the case of a minor party, the selection of town committee members and delegates to conventions shall not be valid unless at least one copy of the party rules regulating the manner of making such selection has been filed in the office of the Secretary of the State at least sixty days before such selection is made. A copy of local party rules shall forthwith be also filed with the town clerk of the municipality to which they relate. Party rules shall not be effective until sixty days after the filing of the same *17 with the Secretary of the State. . . . The term ‘party rules’ as used in this section includes any amendment to such party rules. When any amendment is to be filed as required by this section, complete party rules incorporating such amendment shall be filed, together with a separate copy of such amendment.’’ (Empha- sis added.)
Section 9-374 sets forth two operative time periods
with respect to the filing of the party rules. First, the
statute requires minor parties to file their party rules
with the Secretary ‘‘at least sixty days’’ before nomi-
nating a candidate or selecting town committee mem-
bers and delegates to conventions, and precludes state
or municipal officials from putting such candidates on
the ballot unless such a filing has been made. Second,
§ 9-374 provides that such party rules ‘‘shall not be
effective until sixty days
after
the filing of the same
with the Secretary of the State.’’ Given this time frame,
we agree that the plaintiffs’ reading of § 9-374 is plausi-
ble, insofar as there is no statutory language
precluding
a minor party from filing its party rules before a given
point in time, or rendering those rules ineffective if filed
early, and reading § 9-374—standing by itself—in such
a manner might conceivably run afoul of the maxim
that, in construing statutes, ‘‘[w]e are not permitted to
supply statutory language that the legislature may have
chosen to omit.’’ (Internal quotation marks omitted.)
State
v.
Josephs
,
We do not, however, read § 9-374 by itself. Section
1-2z counsels us to construe statutes in light of related
provisions, as we are ‘‘guided by the principle that the
legislature is always presumed to have created a harmo-
nious and consistent body of law . . . . [T]his tenet of
statutory construction . . . requires us to read statutes
together when they relate to the same subject matter
. . . . Accordingly, [i]n determining the meaning of a
statute . . . we look not only at the provision at issue,
but also to the broader statutory scheme to ensure
the coherency of our construction.’’ (Internal quotation
marks omitted.)
State Fernando A.
,
Another related statute, namely, General Statutes § 9- 453u, which governs applications to reserve party des- ignations for candidates on the ballot by petition, further supports this reading. The designation of a can- didate under § 9-453u is a precursor to minor party status, and that provision makes clear that a minor party is conceptually distinct under the statutory scheme from an organization seeking a party designa- tion. See General Statutes § 9-453u (c) (3) and (4) (pre- cluding designation of party name that ‘‘incorporate[s] the name of any minor party which is entitled to nomi- nate candidates for any office which will appear on the same ballot with any office included in the statement’’ or is ‘‘the same as any party designation for which a reservation with the secretary is currently in effect for any office included in the statement’’). These provisions indicate that a minor party simply does not exist for purposes of our election laws until its candidate receives 1 percent of the vote, thus triggering an obliga- tion to file party rules and creating a party line on the ballot for the next election. Because a minor party does not exist prior to that point, ipso facto, party rules filed prior thereto simply have no effect with respect to the obligations of the Secretary.
Although there is no legislative history to illuminate the meaning of the statutes further, we observe that limiting the effective party rules to those filed after the putative minor party’s candidate receives 1 percent of the vote, along with the sixty day period before those rules take effect, has the salutary effect of allowing the party to take shape and potentially eliminate the confusion sown by factional disputes, such as that in this case. The statutory framework also reflects the organic nature of the development of statewide parties like the Independent Party that have their genesis in a conglomeration of smaller or local groups, each with their own history and political interests. Accordingly, we conclude that the trial court properly determined that the 2010 bylaws are the effective party rules of the Independent Party, because they were filed after Nader received 1 percent of the vote as a statewide candidate. [16]
III ADDITIONAL CLAIMS Beyond the principal issues in this appeal, the plain- tiffs also raise numerous other claims. Specifically, the plaintiffs contend that the trial court improperly (1) failed to afford preclusive effect to Judge Taylor’s deci- sion in the 2012 Waterbury action, (2) determined that *19 they had waived their rights to challenge the adoption of the 2010 bylaws, (3) adopted a construction of § 9- 374 that violated the parties’ constitutional rights, and (4) permitted the defendants to amend their answer to add special defenses and counterclaims after the close of evidence. See footnote 6 of this opinion. Because we conclude that all of these claims lack merit, we briefly address each in turn.
A Preclusive Effect of 2012 Waterbury Action The plaintiffs contend that the trial court’s decision improperly conflicts with Judge Taylor’s decision in the 2012 Waterbury action; see Independent Party of Connecticut Dietter , supra, Superior Court, Docket No. CV-12-5016387-S; an action brought and withdrawn by the Waterbury faction after Judge Taylor denied its motion for a temporary order of mandamus based on his finding that the ‘‘Independent Party did not follow the amendment procedures provided in the 2006 [bylaws] for the adoption of amendments to those rules in 2010.’’ The plaintiffs argue that Judge Taylor’s deci- sion was well reasoned and considered ‘‘essentially the same issues between essentially the same parties,’’ and that the trial court in this case should have accorded it preclusive effect given the defendants’ ‘‘gamesmanship’’ in withdrawing that action upon receipt of an adverse ruling. In response, the defendants contend that Judge Taylor’s decision in the 2012 Waterbury action lacks preclusive effect in the present case because it was specifically intended to be a preliminary decision ren- dered on an expedited basis and not a final judgment on the merits. We agree with the defendants and con- clude that Judge Taylor’s decision in the 2012 Waterbury action has no preclusive effect with respect to the pres- sent case.
The record reveals the following additional relevant facts and procedural history. In one chapter of this dispute between the parties; see footnote 9 of this opin- ion; the officers of the Waterbury faction and its nomin- ees for the 16th senate district and the 106th assembly district brought the 2012 Waterbury action against the Secretary, the officers of the Danbury faction, and their corresponding house and senate candidates, seeking a declaration and an order directing the Secretary to place the Waterbury faction’s candidates on the ballot for the 2012 election. Independent Party of Connecticut Dietter , supra, Superior Court, Docket No. CV-12- 5016387-S. In that case, Judge Taylor observed that the ‘‘essential dispute between the parties revolve[d] around the validity and proper adoption of political party rules following the Independent Party of Connect- icut’s qualification as a minor political party for presi- dential elections, inter alia, which occurred after the 2008 election.’’ Id. Along with their complaint, the Waterbury faction filed a motion seeking a temporary *20 order of mandamus. Id. After conducting an evidentiary hearing and receiving memoranda of law on an expe- dited basis, the court issued a decision denying that motion. Id.
Although Judge Taylor agreed with the Waterbury faction’s claim that ‘‘the 2006 [bylaws] concerning the party nomination process are extremely general and do not so much as state the vote required for a local committee or caucus endorsement,’’ he nevertheless rejected its argument that the 2006 bylaws did not com- ply with § 9-374, concluding that ‘‘there are no specific requirements listed in the statute to guide a political party in adopting party rules ‘regulating the manner of nominating a candidate . . . .’ ’’ Id. Judge Taylor then observed that the ‘‘question presented is whether the [Waterbury faction] properly convened a caucus of the Independent Party of Connecticut in 2010 to amend the 2006 [bylaws] and [to] elect new officers pursuant to the newly adopted 2010 [bylaws]. The court finds that the [Waterbury faction] did not follow the amendment procedures provided in the 2006 [bylaws] for the adop- tion of amendments to those rules in 2010. The court further finds that the 2010 amendments made to the 2006 [bylaws] occurred at a caucus of the [Waterbury faction] pursuant to a statute that is inapplicable to the amendment of state party rules. These findings lead to the court’s conclusion that the [Waterbury faction] has failed to establish a clear legal right to the performance of a duty by the [Secretary] necessary for the issuance of an order of mandamus in this case.’’ Id.
Judge Taylor emphasized, however, that, ‘‘[t]hus far in this case . . . the court has held only an expedited hearing on a preliminary [m]otion for a [t]emporary [order of] [m]andamus. The court notes that there has not yet been a full opportunity for an exploration into the questions raised at the preliminary hearing as to whether the 2006 [ bylaws ] are fatally inconsistent with state elections statutes , other than § 9-374 standing alone. The 2006 [bylaws] appear to be vintage party rules, allowing for strong party leadership through a self-perpetuating central committee, holding a veto over party endorsements that appear inconsistent with more modern and open party rules and procedures. These issues would be more thoroughly considered in a motion to dismiss, which the [Danbury faction] has not yet filed. Accordingly, in light of the inextricable link between the issue of standing and the merits of the [Waterbury faction’s] underlying claims, the court will postpone a determination of the jurisdictional issue.’’ (Emphasis added.) Id. After Judge Taylor’s ruling on the motion for a temporary order of mandamus, the Waterbury faction subsequently withdrew the 2012 Waterbury action.
Whether the preclusion doctrine of collateral estop-
pel or res judicata applies is a question of law subject
*21
to plenary review. See, e.g.,
MacDermid, Inc.
v.
Leonetti
,
‘‘[I]t is significant that the doctrine of res judicata provides that [a] judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose. . . . The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it.’’ (Internal quotation marks omitted.) Id., 463.
Similarly, the ‘‘fundamental principles underlying the doctrine of collateral estoppel are well established. The common-law doctrine of collateral estoppel, or issue preclusion, embodies a judicial policy in favor of judi- cial economy, the stability of former judgments and finality. . . . Collateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitiga- tion of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim. . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment. . . .
‘‘An issue is actually litigated if it is properly raised
in the pleadings or otherwise, submitted for determina-
tion, and in fact determined. . . . An issue is necessar-
ily determined if, in the absence of a determination of
the issue, the judgment could not have been validly
rendered. . . . If an issue has been determined, but the
judgment is not dependent [on] the determination of the
issue, the parties may relitigate the issue in a subsequent
action. . . . Before collateral estoppel applies [how-
ever] there must be an identity of issues between the
prior and subsequent proceedings. To invoke collateral
estoppel the issues sought to be litigated in the new
proceeding must be identical to those considered in the
prior proceeding. . . . In other words, collateral estop-
pel has no application in the absence of an identical
issue.
.
.
. Further, an overlap in issues does not
necessitate a finding of identity of issues for the pur-
poses of collateral estoppel.’’ (Citations omitted;
emphasis altered; internal quotation marks omitted.)
MacDermid, Inc.
v.
Leonetti
, supra,
Finality of judgment is critical because ‘‘the preclu-
sive effects of res judicata and collateral estoppel
depend upon the existence of a valid, final judgment
on the merits by a court of competent jurisdiction.’’
[18]
Slattery
v.
Maykut
,
Accordingly, courts have held that preliminary deci-
sions, such as on preliminary injunctions or other tem-
porary orders, are not entitled to preclusive effect,
particularly when the court makes clear that it is a
‘‘tentative ruling . . . not intended as a final decision
on the merits. Ordinarily, findings of fact and conclu-
sions of law made in a preliminary injunction proceed-
ing do not preclude reexamination of the merits at a
subsequent trial.’’
Irish Lesbian & Gay Organization
Giuliani
,
Having reviewed Judge Taylor’s decision in the 2012 Waterbury action, it is clear that he rendered it on an expedited basis as, in essence, a preliminary injunction ruling, without benefit of full exploration of the ques- tions raised. Judge Taylor specifically emphasized that his denial of the Waterbury faction’s motion for a tempo- rary order of mandamus was tentative and not a final judgment on the merits. Accordingly, we conclude that the trial court properly declined to give preclusive effect to Judge Taylor’s decision in the 2012 Waterbury action. [19]
B Special Defense of Waiver The plaintiffs next claim that the trial court ‘‘improp- erly intervened in the party’s internal affairs’’ because the 2010 bylaws are ‘‘invalid’’ given that the defendants did not follow the amendment procedure contained in the 2006 bylaws. In this vein, the plaintiffs also contend that the trial court improperly held for the defendants with respect to the special defense of waiver; the plain- tiffs contend specifically that the trial court improperly found that they had waived any right to challenge the validity of the 2010 bylaws, because, since 2012, they have operated in accordance with Judge Taylor’s deci- sion in the 2012 Waterbury action, which held that the 2010 bylaws were not a properly executed amendment of the 2006 bylaws. In addition to renewing their statu- tory argument that the 2006 bylaws were not binding on the statewide Independent Party, which was a new entity that did not exist until after the 2008 election, the defendants also contend that the trial court properly *24 found that the plaintiffs waived objection to the 2010 bylaws by ‘‘their acquiescence in the process of their adoption and in the use of those bylaws, with their express consent, to govern subsequent nominations and endorsements.’’ We agree with the defendants and con- clude that the trial court’s finding that the plaintiffs had waived any objection to the use of the 2010 bylaws to govern Independent Party proceedings was not clearly erroneous.
‘‘Waiver is a question of fact. . . . [W]here the fac- tual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. . . . There- fore, the trial court’s conclusions must stand unless they are legally or logically inconsistent with the facts found or unless they involve the application of some erroneous rule of law material to the case. . . .
‘‘Waiver is the intentional relinquishment or abandon- ment of a known right or privilege. . . . Waiver is based upon a species of the principle of estoppel and where applicable it will be enforced as the estoppel would be enforced. . . . Estoppel has its roots in equity and stems from the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed . . . .
‘‘Waiver does not have to be express, but may consist
of acts or conduct from which waiver may be implied.
. . . In other words, waiver may be inferred from the
circumstances if it is reasonable to do so.’’ (Citations
omitted; internal quotation marks omitted.)
AFSCME,
Council 4, Local 704
v.
Dept. of Public Health
, 272
Conn. 617, 622–23,
We conclude that the trial court’s factual finding of waiver with respect to the 2010 bylaws was not clearly erroneous and was, moreover, consistent with the court’s legal conclusion under § 9-374 and its underlying findings—namely, that the Independent Party, as consti- tuted in contemplation of the 2008 election, was a newly formed political party that had roots in various local independent parties around the state, including those from Danbury and Waterbury. Thus, the record amply supports the trial court’s findings of ‘‘numerous indica- tors that the plaintiffs have waived their right to contest the validity of the 2010 bylaws.’’ For example, the trial court properly credited testimony by Telesca and Mer- tens in finding that that Telesca and Fand ‘‘actively worked together starting in 2008 to create a statewide Independent Party in 2008 by petitioning to get Nader ballot access for the office of [the] president of the United States. Both Fand and Telesca filed a joint ED- 601 party designation form on behalf of the Independent Party on May 5, 2008.’’ [20] (Footnote omitted.) After Nader received the requisite 1 percent of the vote, ‘‘Telesca and Mertens then began drafting bylaws for the new statewide party in an effort to comply with § 9-374. They sent the bylaws they drafted to local Independent Party town committee chairs, [21] and arranged for a state- wide party meeting/caucus to vote on the proposed bylaws.’’ (Footnote added.) As the trial court found, Telesca and Iorio ‘‘met personally with Fand to discuss the proposed bylaws; Fand did not object to the planned meeting, nor did he object to the idea of creating new bylaws for the statewide party or to the bylaws them- selves. After the bylaws were unanimously adopted at the March 20, 2010 party meeting and later filed with the [Secretary], neither Fand nor any other member of the Danbury faction objected to them,’’ either at the meeting or after they were filed with the Secretary.
‘‘Moreover, when the Independent Party held a cau- cus on August 21, 2010, to endorse candidates for vari- ous offices pursuant to the 2010 bylaws, Fand and other members of the Danbury faction attended the meeting and did not question or object to their use. In addition, both Fand and LaFrance, two-thirds of the [Danbury faction], signed the endorsement form filed with the Waterbury town clerk and the [Secretary] along with Telesca, which specified the candidates that the Inde- pendent Party had endorsed for the 2010 elections at the August 21 meeting.’’ The 2010 bylaws also governed the 2011 municipal election cycle, with no objection by *26 Fand or the Danbury faction. ‘‘Fand and others in the Danbury faction also used the 2010 bylaws to govern [statewide] nominations/endorsements for the 2010, 2012 and 2014 election cycles without any objection,’’ including the presidential election in 2012.
As the trial court found, Fand and the Danbury faction ‘‘did not call the legitimacy of the 2010 bylaws into question until sometime in 2012 when [Fand and Tel- esca] first disagreed about the nomination of Mark Boughton, the Republican mayor of Danbury, who was hoping for the endorsement of the Independent Party in connection with his gubernatorial ambitions in 2012.’’ Accordingly, the trial court found that ‘‘there is nothing in the law that prevented Telesca from filing the 2010 bylaws with the [Secretary], and that the plaintiffs’ knowledge about the drafting and adoption of such bylaws and their failure to object demonstrate their de facto acceptance of them.’’ We conclude that the trial court did not commit clear error in finding, with respect to the special defense of waiver, that ‘‘the defendants have established by a preponderance of the evidence submitted in this case that the plaintiffs have waived any right they may have had to challenge the validity of the 2010 bylaws.’’
C Constitutional Claims The plaintiffs next argue that the trial court’s decision violated the parties’ rights under the first amendment to the United States constitution and article first, § 14, of the Connecticut constitution by directing the Secre- tary to accept only those Independent Party nomina- tions ‘‘made pursuant to the 2010 bylaws . . . .’’ They contend that this order is an improper interference with the Independent Party’s right to choose its candidates in accordance with its own desires and hurts the party by depriving the Danbury faction of the right to make an endorsement even when the Waterbury faction has not made a competing endorsement, thus adversely affecting the entire party’s chance to maintain the ballot line for future elections. In response, the defendants contend, inter alia, that this claim is unreviewable because the plaintiffs did not raise it before the trial court. The defendants also argue that the trial court’s ‘‘disposition of the parties’ dispute [with an order to the Secretary] was a necessary and appropriate judicial action’’ to which the plaintiffs had agreed at trial, because they named her as a defendant and explained to the trial court the necessity of an order directed to the Secretary given her office’s long established policy of not accepting a minor party’s nomination for an office when there is a conflicting nomination under the same party designation. We agree with the defendants and conclude that the plaintiffs waived their constitutional claim by inducing any claimed error.
The plaintiffs’ failure to raise their constitutional
claim before the trial court ordinarily would not be fatal
to appellate review, insofar as we could consider it
under the bypass doctrine of
State
v.
Golding
, 213 Conn.
233, 239–40,
It is well settled, however, that
Golding
review is not
available when the claimed constitutional error has
been induced by the party claiming it. See, e.g.,
State
v.
Coward
,
Our review of the record leads us to conclude that the plaintiffs induced the claimed constitutional error in this case by naming the Secretary as a defendant and seeking an order directed to her. In their posttrial memorandum of law, the plaintiffs explained that the Secretary ‘‘remains as the first named [d]efendant for two reasons. First, the [Secretary] practices a long- standing policy of not accepting a candidate’s nomina- tion to office by a minor party when the [Secretary’s] office receives a conflicting nomination with the same minor party designation for a given office. Therefore, the [trial court’s] granting [of the plaintiffs’] third prayer for relief will compel the [Secretary] to recognize nomi- nations from the plaintiffs as the valid nominations from the Independent Party, invalidating conflicting ones by [the defendants] or otherwise. Second, without the third prayer for relief, the [Secretary]—by enforcing its long- standing policy—stands positioned to cause the plain- tiffs irreparable harm. This harm has been caused in at *28 least the last three . . . state election cycles.’’ (Foot- note omitted.) The relief granted to the defendants, namely, a declaration that they, rather than the plain- tiffs, are the ‘‘rightful’’ officers of the Independent Party, with the 2010 bylaws controlling, and an order that the Secretary ‘‘recognize the above and to treat nominations and endorsements made pursuant to [the] 2010 bylaws as nominations and endorsements of the Independent Party of Connecticut,’’ is simply a mirror image of that requested by the plaintiffs. Accordingly, because we consider the alleged constitutional errors to have be induced by the plaintiffs’ own litigation tactics, we decline to review those claims.
D
Amendment of Pleadings
The plaintiffs’ final claim is that the trial court abused
its discretion by granting the defendants’ request to
amend their answer to add special defenses and coun-
terclaims after the close of evidence. In response, the
defendants contend that the plaintiffs were not preju-
diced by the amendment, insofar as they have not identi-
fied anything that they would have done differently
had the amendment either not been permitted or made
earlier, and observe that the plaintiffs did not seek a
continuance to address any new factual issues. The
defendants rely on
Dow & Condon, Inc. Brookfield
Development Corp.
,
The record reveals the following additional relevant facts and procedural history. On October 10, 2017, on the eve of trial, the defendants sought permission to file an amended answer, including four special defenses and a counterclaim. The original answer did not include any special defenses or counterclaims. The proposed amended answer asserted the following special defenses: (1) the plaintiffs ‘‘lack standing to file and prosecute this action’’; (2) the plaintiffs ‘‘have ratified the actions of the defendants in filing bylaws for the Independent Party of Connecticut in 2010 or have waived any right they might have had to challenge it’’; (3) the ‘‘purported bylaws [of 1987 and 2006] violate rights of free of association [under] the first amendment [and] the Connecticut Constitution’’; and (4) the 2006 bylaws were adopted without authority and therefore invalid. The defendants also filed a counterclaim seek- ing a declaratory judgment ‘‘that they are [the] rightful officers of the Independent Party of Connecticut [and] that the individual plaintiffs . . . are not . . . .’’ The plaintiffs objected to the request, and the trial court *29 considered argument on the proposed amendment on October 11, 2017, which was the first day of trial. The trial court held the defendants’ motion in abeyance and, after the close of evidence, indicated that it would overrule the plaintiffs’ objection and permit the amend- ment.
‘‘While our courts have been liberal in permitting
amendments .
.
.
this liberality has limitations.
Amendments should be made seasonably. Factors to
be considered in passing on a motion to amend are the
length of the delay, fairness to the opposing parties
and the negligence, if any, of the party offering the
amendment. . . . The motion to amend is addressed
to the trial court’s discretion which may be exercised
to restrain the amendment of pleadings so far as neces-
sary to prevent unreasonable delay of the trial. . . .
Whether to allow an amendment is a matter left to the
sound discretion of the trial court. This court will not
disturb a trial court’s ruling on a proposed amendment
unless there has been a clear abuse of that discretion.
. . . It is the [appellant’s] burden to demonstrate that
the trial court clearly abused its discretion. . . . If an
amendment is allowed at trial and the opponent wants
to raise an abuse of discretion issue on appeal, he
should immediately move for a continuance in the trial
in order to defend against the new issue. . . . Under
certain circumstances, the trial court may allow an
amendment to plead an additional special defense even
after judgment has entered.’’ (Citations omitted; inter-
nal quotation marks omitted.)
Dow & Condon, Inc.
v.
Brookfield Development Corp.
, supra,
In considering whether a trial court has abused its
discretion ‘‘in granting or denying a request to amend
a [pleading] during or after trial,’’ we recognize that
‘‘the trial court has its unique vantage point in part
because it is interpreting the . . . allegations not in a
vacuum, but in the context of the development of the
proceedings and the parties’ understanding of the mean-
ing of those allegations. Similarly, prior to trial, in light
of discovery, pretrial motions or conferences, a trial
court may have a different context for the allegations
than what is evident to an appellate court.’’
Dimmock
Lawrence & Memorial Hospital, Inc.
,
We conclude that the trial court did not abuse its
discretion in allowing the late amendment to the defen-
dants’ answer because it did not prejudice the plaintiffs.
In their reply brief, the plaintiffs posit only that they
were injured by the late amendment because the trial
court ‘‘ultimately found in favor of the defendants on
one special defense [of waiver] and on their counter-
claim. The injury is that the trial court could not have
found waiver or found in favor of the defendants on
their counterclaim if the court had not permitted the
amendment.’’ Beyond the obviously adverse result of
*30
losing, however, the plaintiffs do not indicate that the
trial court’s decision to permit
the amendment
adversely affected the process. Specifically, they do not
argue that they would have litigated the case differently
had the trial court not permitted the amendment, or that
they were deprived of any additional time necessary
to respond to the amendment. Indeed, the trial court
specifically afforded the plaintiffs fourteen days to file
any necessary responsive pleading, in addition to post-
trial briefing. See
Dow & Condon, Inc.
v.
Brookfield
Development Corp.
, supra,
Nor do the plaintiffs indicate that the late ‘‘amend-
ment . . . confuse[d] the issues in the case . . . .’’
Travelers Casualty & Surety Co. of America
v.
Nether-
lands Ins. Co.
,
The judgment is affirmed.
In this opinion the other justices concurred.
Although the previous chairman, John L. Dietter, was originally a plaintiff
LaFrance is its treasurer, and Palanzo is its secretary and deputy treasurer.
later appointed Duff to the position of chairman, and, shortly thereafter,
in the present action, he died in November, 2016. LaFrance and Palanzo
the trial court granted a motion substituting Duff as a plaintiff. We note
that, notwithstanding this substitution, the plaintiffs’ appeal form in the
that this is nothing more than a scrivener’s error. Cf. present case continues to identify Dietter as chairman. The record reflects
Zillo
, 124
State
Conn. App. 690, 691 n.1,