Keeley v. AyalaKeeley v. Ayala
The following facts and procedural history are relevant to the appeal. An earlier, citywide Democratic primary was held in Bridgeport on September 12, 2017, in which four candidates vied to be the two party nominees from the 133rd district.
In October, 2017, the trial court conducted a two day hearing on the plaintiff's complaint. At that hearing, counsel for the city defendants represented to the court that, citywide, there were eleven hand counted absentee ballots that had not been tallied on the night of the primary, and that one of those ballots had contained the tiebreaking vote for Herron that was added to her total during the recanvass. The defendant Charles D. Clemons, Jr., the Bridgeport town clerk, was questioned regarding an official absentee ballot affidavit that was notarized and purportedly bore his signature and oath. Clemons testified that, in fact, he had not signed the affidavit, and, thereafter, he invoked his constitutional privilege against self-incrimination. The following day, the parties stipulated that the results of the September 12, 2017 Democratic primary for the 133rd district would be vacated and that a new special primary including all four Democratic candidates would be conducted on November 14, 2017. In light of the irregularities that had surfaced in connection with the September 12, 2017 Democratic primary, the court appointed a moderator, Attorney Maximino Medina, to act as a neutral monitor in connection with the November 14, 2017 special primary. In addition, the court retained jurisdiction to resolve any disputes that might arise during the special primary.
Prior to the November 14, 2017 special primary, one such issue arose. Specifically, on November 13, 2017, Medina became aware that a Bridgeport police officer, Paul Nicola, was retrieving absentee ballots from voters and delivering them to the town clerk's office at the behest of Mario Testa, the chairman of Bridgeport's Democratic Town Committee. Upon learning of this
The special primary was held on November 14, 2017, as ordered. The results of that election were: DeFilippo, 240 votes; Herron, 230 votes; the plaintiff, 212 votes; and Phillips, 168 votes. Following the ballot count, the plaintiff again challenged the special primary results pursuant to
The trial court conducted an expedited evidentiary hearing on the plaintiff's claims on November 27, 28 and 29, 2017, and, on November 30, 2017, the court
The defendants claim that the trial court improperly resolved each of the plaintiff's claims of absentee balloting impropriety. The defendants also claim generally that the trial court improperly allocated the burden of proof applicable to the proceedings, effectively placing on them the responsibility of disproving the plaintiff's allegations.
Before turning to the defendants' claims, we briefly summarize the general principles applicable to those claims.
Finally, this case concerns various statutes applicable to absentee balloting, which is "a special type of voting procedure established by the legislature for those otherwise qualified voters who for one or more of the [statutorily] authorized reasons are unable to cast their ballots at the regular polling place." Wrinn v. Dunleavy ,
I
The defendants claim first that the trial court incorrectly concluded that § 9-140b (a) prohibits a party official or candidate from directing a police officer to retrieve absentee ballots from electors and to deliver them to the town clerk. We disagree.
The trial court made the following factual findings related to this issue. Officer Nicola was on patrol duty during the daytime on November 13, 2017, when he was summoned by another officer and directed to meet with Police Chief Armando J. Perez. Nicola then met face to face with Perez, who gave Nicola a duty order to contact and meet with Testa, the chairman of Bridgeport's Democratic Town Committee, because Testa and the party needed an officer to retrieve absentee ballots. Perez told Nicola that Testa would draw up a list and tell Nicola what needed to be done. Nicola then went
Over the course of that day, Nicola traveled throughout Bridgeport to retrieve absentee ballots, with DeFilippo texting him names and addresses along the way. Nicola continued to pick up ballots on November 14, 2017, despite the court's November 13, 2017 order aimed at discouraging that practice. Nicola retrieved absentee ballots without seeking identification from any of the individuals who delivered them to him and, at times, accepted multiple ballots from a single person.
The trial court analyzed the language of § 9-140b, governing the return of absentee ballots, and the applicable legislative history, concluding that Nicola's retrieval of ballots at Testa's behest did not comport with the requirements of that statutory provision. The court explained that "[t]he statute allows an absentee voter to contact the registrar of voters ... or the police department for police officer pickup of an absentee ballot due to [a] voter's illness or disability. That process allows for the voter who claims an illness or
The defendants argue that the trial court incorrectly concluded that § 9-140b precluded Testa and DeFilippo from dispatching Nicola to retrieve absentee ballots from voters. They claim that nothing in the statute bars a third party, including a party official or a candidate, from asking a police officer to contact an absentee voter and to act as that voter's designee for purposes of returning the voter's absentee ballot. In the defendants' view, the plain language of § 9-140b authorizes anyone to request a ballot pickup on an absentee voter's behalf because there is no explicit restriction in that regard.
The return of absentee ballots, by various authorized methods, is governed by § 9-140b,
This court previously has held that the requirements of
To determine whether
With respect to who may choose a "designee" for an absentee voter, the language used in
Subsection (b) of
When subsection (b) was amended in 1989; see Public Acts 1989, No. 89-297, § 4; the bill that included those changes-the language of which is substantially similar to the current version of
To the extent that any ambiguity remains, we agree with the trial court that
In addressing the mechanics of the proposed legislation with respect to the return of an absentee ballot by an ill or disabled elector, Representative Canali explained that such a ballot could be returned by "an elector himself, or by any person designated by that elector ... [such as] a physician, a registered or practical nurse, or any other person who is caring for ... [the] elector because of ... [the] elector's illness or physical disability, a member of such elector's family, or if no such person exists or is available, then a police officer, a [r]egistrar of [v]oters, or a [d]eputy [r]egistrar
We glean two clear intentions from the foregoing legislative history. First, it is an absentee voter himself or herself, and not a third party, who must appoint or select a designee, from within the approved categories of persons, to return his or her absentee ballot on the
In sum, the language and genealogy of
II
The defendants next contend that the trial court incorrectly concluded that twelve absentee ballots that arrived at city hall on the day of the Democratic special primary without postmarks were not "mailed" within
The following additional facts, as found by the trial court, are relevant to our resolution of this issue. On the day of the special primary, Medina, while fulfilling his duties as moderator, spent some time in the mailroom at Bridgeport's city hall. While there, he witnessed Jack McDowell, the mailroom's supervisor, holding a stack of fifteen absentee ballots. Of those ballots, three bore postmarks, whereas the other twelve, although bearing stamps, were not postmarked.
McDowell told Medina that he had brought the absentee ballots directly from the post office to city hall. This was shown, however, to be untrue. Instead, McDowell, while accompanied by another city employee, Emily Zahorsky, had picked up the city's mail from the post office, and then, before returning to city hall, made three more stops at the city's fire department, emergency operations center and health department to deliver and retrieve mail. The two retrieved loose, outgoing mail from both the fire department and the emergency operations center, and commingled that mail in the same mail bin that contained the mail previously retrieved from the post office. Additionally, during each of the three stops, the mail bin was left unattended in the unlocked car that McDowell and Zahorsky had used for the mail pickups.
The trial court found that the evidence established a lack of security with respect to the absentee ballots, which, according to the court, provided a "clear opportunity for absentee ballots that were not sent by the United States Postal Service to be added to the mail
The return of absentee ballots by mail is governed by
Subsection (a) of
"Because factual findings and credibility determinations are squarely within the trial court's purview, we afford them great deference.... In reviewing factual findings, [w]e do not examine the record to determine whether the [court] could have reached a conclusion other than the one reached.... Instead, we make every reasonable presumption ... in favor of the court's ruling.... Finally, a finding is not clearly erroneous merely because it relies on circumstantial evidence. See Rawls v. Progressive Northern Ins. Co. ,
We conclude that the trial court's factual finding-namely, that the twelve absentee ballots at issue were not "sent by the United States Postal Service"-is supported by the circumstantial evidence and the inferences reasonably drawn therefrom. First, those ballots were not postmarked, although other absentee ballots that arrived at city hall at the same time were postmarked. A postmark is strong evidence that a piece of mail was processed for delivery at a United States post office on a specific date. See, e.g., In re Coviello v. Knapp ,
Second, McDowell falsely reported to Medina that he had brought the absentee ballots at issue directly from the post office to city hall. To the contrary, sworn testimony at the hearing in the trial court showed that McDowell and Zahorsky made three stops on the way to city hall and, during each of those stops, left the city's mail unattended in their vehicle, creating repeated opportunities for tampering. Moreover, mail retrieved during those stops was commingled with the mail from the post office. These circumstances, coupled with McDowell's falsehood to Medina, increased the likelihood that the absentee ballots lacking postmarks had originated from somewhere other than the post office.
In view of the foregoing considerations, the trial court's finding that the twelve absentee ballots lacking postmarks, which Zahorsky had not seen until she and McDowell had completed their circuitous journey back to city hall with the day's mail, were not "sent by the United States Postal Service" was a reasonable and logical one, predicated on the facts established and fair inferences drawn from those facts. On the basis of all the facts and circumstances, we disagree with the defendants' contention that the court's finding that the ballots were not "mailed," as contemplated by
III
The defendants also maintain that the trial court incorrectly concluded that the
The following additional facts, which were found by the trial court or are not disputed, are necessary to our determination of this issue. Supervised absentee balloting was mandated by statute at Northbridge, a nursing home that had at least eighty residents. See
In the days preceding the earlier Democratic primary held on September 12, 2017, Jennifer Rodriguez, director of therapeutic recreation at Northbridge, and representatives of the Democratic registrar of voters, had gone door to door at the facility to determine which residents wanted to vote in that primary. They distributed absentee ballot applications to those who did and later returned with their absentee ballots. Several residents then voted in the September 12, 2017 primary.
The plaintiff campaigned at Northbridge prior to the September 12, 2017 primary and again before the November 14, 2017 special primary. Prior to the latter event, he went door to door on all four floors of the facility, speaking to residents, and a number of those residents indicated that they intended to vote. In contrast to the assistance that they had rendered to Northbridge residents in advance of the earlier primary, however, neither Rodriguez nor the registrar's representatives visited residents individually in the days prior to the scheduled supervised balloting session on November 8, 2017, to determine whether they sought to vote and, if so, to distribute absentee ballot applications to those voters.
At 9:30 a.m. on November 8, 2017, Medina arrived at Northbridge as part of his moderator duties. He spoke
The scheduled supervised balloting session occurred between 10 a.m. and 12 p.m. in a second floor reading room, where the Democratic registrar's two representatives awaited residents who wished to cast absentee ballots. Although the representatives had brought absentee ballot applications with them that day, they made no efforts to distribute them to residents. Medina remained at Northbridge throughout the voting period. Residents were seen in the area but did not vote. Ultimately, no Northbridge residents voted at the supervised absentee balloting session on November 8, 2017.
The trial court found that the procedure employed in anticipation of and at the November 8, 2017 supervised absentee balloting session was "in sharp contrast" to the procedure that had been employed prior to the September 12, 2017 primary. After observing, without elaboration, that
The defendants claim that the trial court incorrectly determined that the supervised absentee balloting held at Northbridge was not compliant with the statutes governing that process. They contend that the applicable law did not require the Democratic registrar of voters or her representatives to notify the Northbridge residents of the scheduled supervised absentee balloting and did not mandate that the officials approach residents to discern their voting intentions and to offer them ballot applications. Rather, the defendants argue, the onus is on a voter to apply for an absentee ballot, and only when an application is submitted is the registrar of voters required to deliver an absentee ballot. They emphasize that, "[i]n this case, because no voter at Northbridge applied for an absentee ballot for this election, there was nothing to be delivered." (Emphasis in original.) Our review of the statutes governing supervised absentee balloting leads us to conclude that the defendants' claim is meritorious.
As to either discretionary or mandatory supervised absentee balloting, the relevant statutory provisions direct registrars or their representatives to deliver absentee ballots directly to applicants at institutions on the day that balloting is to occur.
In light of the foregoing, we agree with the defendants that, under our absentee balloting statutes, the onus was on the residents at Northbridge to request absentee ballot applications if they wanted to cast absentee ballots for the November 14, 2017 Democratic special primary. If they had done so, the registrars or their representatives would have been obligated to deliver those ballots to them on November 8, 2017, to be cast in the supervised absentee balloting session that was scheduled on that date. To the extent that those representatives, prior to the September 12, 2017 Democratic primary, made efforts to ascertain whether residents at Northbridge wanted to submit applications for absentee ballots, we conclude that those efforts, while commendable, were not statutorily required and did not give rise to any obligation to repeat the process in a later primary.
IV
To summarize, the trial court properly found that the fourteen absentee ballots returned by Nicola at the behest of Testa and DeFilippo did not comply with
With respect to the reservation of questions of law in Docket No. SC 20029, the answer to the first and third certified questions is yes, and the answer to the second and fourth certified questions is no;
In this opinion the other justices concurred.
Notes
"(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 .... Such judge shall, on the day fixed for such hearing, and without delay, proceed to hear the parties and determine the result.... Such judge shall thereupon, if he finds any error in the ruling of the election official ... 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 ... determine the result of such primary ... [or] ... order a new primary if he finds that but for the error in the ruling of the election official ... 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 ... 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...."
The defendants are Jeanette Herron, a winning candidate in the special primary at issue, as well as Santa I. Ayala, Bridgeport's Democratic registrar of voters, James Mullen, head moderator for the special primary, Thomas Errichetti, head moderator of absentee ballots for the special primary, and Charles D. Clemons, Jr., Bridgeport's town clerk.
The questions reserved by the defendants are:
"1. Does ...General Statutes § 9-140b prohibit any person other than the elector from arranging for a designee to return an elector's absentee ballot to the [t]own [c]lerk?
"2. Did the trial court err in rejecting twelve absentee ballots that were stamped but not postmarked on the ground that they were not 'mailed' pursuant to ...§ 9-140b ?
"3. Did the trial court err in deciding that the administration of the supervised absentee balloting at the Northbridge Health Care Center did not meet the minimum standards required by law?
"4. Did the trial court err in applying the burden of proof, and in rejecting votes validly cast by electors, thereby undermining the trial court's conclusion that there were substantial statutory violations that left the reliability of the election seriously in doubt?"
In this opinion, we have reformulated the reserved questions to reflect more accurately the precise issues before us. Cf., e.g., State v. Ouellette ,, 184, 295 Conn. 173 (2010). 989 A.2d 1048
We transferred that appeal from the Appellate Court to this court pursuant to
"(b) As used in this section and section 9-150c, 'designee' means (1) a person who is caring for the applicant because of the applicant's illness or physical disability, including but not limited to, a licensed physician or a registered or practical nurse, (2) a member of the applicant's family, who is designated by an absentee ballot applicant and who consents to such designation, or (3) if no such person consents or is available, then a police officer, registrar of voters, deputy registrar of voters or assistant registrar of voters in the municipality in which the applicant resides.
"(c) For purposes of this section 'mailed' means sent by the United States Postal Service or any commercial carrier, courier or messenger service recognized and approved by the Secretary of the State.
"(d) No person shall have in his possession any official absentee ballot or ballot envelope for use at any primary, election or referendum except the applicant to whom it was issued, the Secretary of the State or his or her authorized agents, any official printer of absentee ballot forms and his designated carriers, the United States Postal Service, any other carrier, courier or messenger service recognized and approved by the Secretary of the State, any person authorized by a municipal clerk to receive and process official absentee ballot forms on behalf of the municipal clerk, any authorized primary, election or referendum official or any other person authorized by any provision of the general statutes to possess a ballot or ballot envelope.
"(e) No (1) candidate or (2) agent of a candidate, political party or committee, as defined in section 9-601, shall knowingly be present when an absentee ballot applicant executes an absentee ballot, except (A) when the candidate or agent is (i) a member of the immediate family of the applicant or (ii) authorized by law to be present or (B) when the absentee ballot is executed in the office of the municipal clerk and the municipal clerk or an employee of the municipal clerk is a candidate or agent."
On January 25, 2018, we issued an order answering the four certified questions, upholding the trial court's decision to order a new special election, and remanding the case for any further proceedings that the trial court may deem appropriate. We further indicated that a full written opinion of this court, that is, this opinion, would follow in due course.
In Bridgeport, two city council members are elected from each of ten districts within the city. The districts are numbered from 130 to 139. For each district, a political party may nominate or endorse a maximum of two candidates.
The trial court also directed the court clerk to provide a copy of the court's decision to the Office of the Chief State's Attorney, the secretary of the state, and the State Elections Enforcement Commission, and, additionally, to unspecified federal authorities. The court explained that "[t]he fact that [the statutory violations at issue] all occurred in a court-ordered special [primary] election with a court-appointed moderator speaks to the level of dishonesty and corruption when it comes to absentee ballots in ... Bridgeport."
We previously have explained that "a ruling of an election official must involve some act or conduct by the official that ... interprets some statute, regulation or other authoritative legal requirement, applicable to the election process." Bortner v. Woodbridge ,
"When construing 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 reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question 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 meaning 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 unambiguous, 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." (Footnote omitted; internal quotation marks omitted.) Caruso v. Bridgeport ,
"(b) No person shall misrepresent the eligibility requirements for voting by absentee ballot prescribed in subsection (a) of this section, to any elector or prospective absentee ballot applicant."
The court, although finding Nicola to be a credible witness, questioned the accuracy of his testimony that the majority of voters from whom he had retrieved ballots were elderly, in light of the known birth dates of those voters, which indicated otherwise. For that reason, the court found that many individuals who gave Nicola ballots "were not the actual absentee ballot voters, therefore calling into question violations of ...
The precise manner in which the ballot pickups were initiated was not established at the evidentiary hearing. Testa and DeFilippo retained counsel, who informed the trial court at the start of the evidentiary hearing that neither of them would appear without a subpoena. At an earlier court proceeding, however, counsel for Testa and DeFilippo apparently had conveyed the impression that both men would appear voluntarily, thereby making a subpoena unnecessary. In any event, neither was served with a subpoena, and neither testified at the hearing.
The defendants also claim that
The defendants further argue that the secretary of the state and the State Elections Enforcement Commission have interpreted the law to allow partisan contact with absentee voters. This case goes beyond mere contact with voters, however, and involves active participation in the process of the casting of an absentee ballot.
See footnote 6 of this opinion.
Maintaining distance between partisan individuals and the casting and submission of absentee ballots is consistent with the law governing voting at a polling place, which requires partisan individuals to stay outside a radius of at least seventy-five feet from the entrance to such polling place on an election day. See
Medina testified that McDowell had told him that mail lacking postmarks was not unusual. When Medina asked McDowell to provide another example, however, he could not do so. Medina testified further that absentee ballots that arrived after November 14, 2017, were postmarked.
McDowell was in Florida at the time of the evidentiary hearing and, according to counsel for the city defendants, was not reachable by telephone.
The trial court did not conclude, as a matter of law, as the defendants suggest, that a ballot lacking a postmark is necessarily not sent by the United States Postal Service. Although the lack of a postmark is not dispositive of the question of whether the ballot at issue was mailed, it is one factor, among others, to be considered, and the trial court's analysis clearly reflects that multifactor approach.
Rodriguez testified that an announcement pertaining to the absentee balloting session was made on the facility's overhead audio system between 9:30 and 10 a.m. on November 8, 2017, but the trial court, noting that Medina did not mention any announcement, rejected Rodriguez' testimony in this regard. In its decision, the court did not acknowledge Rodriguez' additional testimony that notice also was posted on a large calendar in an area that notified residents of daily events and that she personally had reminded residents of the scheduled voting when she encountered them around the facility.
In contrast,
The plaintiff contends that the supervised absentee balloting practices utilized at Northbridge in the previous Democratic primary "set the minimum standards required by law." Because he has not provided any authority or analysis in support of this proposition, we reject it.
In contrast, municipal officials are required to provide published notice of municipal elections to the electorate generally. See
Notably, supervised balloting for the general election took place at Northbridge on November 7, 2017, the day before the November 8, 2017 supervised balloting session for the new special primary to nominate Democratic candidates to run for the council seats in the 133rd district. Under the circumstances, it is not surprising that voters at Northbridge might have been confused.
Our disposition of the defendants' first three claims necessarily disposes of the fourth. More specifically, because we already have determined that the trial court correctly concluded that the plaintiff had established two sets of violations of
See footnote 3 of this opinion.