Opinion
UWYCV185022319S
07-10-2018
Vickie O. NARDELLO v. Denise MERRILL
UNPUBLISHED OPINION
OPINION
AGATI, J.
The plaintiff, Vickie Orsini Nardello, has commenced this action against the defendant, Denise Merrill, Secretary of the State of Connecticut seeking both temporary and permanent injunction and a writ of mandamus, compelling the defendant to place the name of the plaintiff on the August 14, 2018 Democratic Party primary ballot for the 16th State Senate District.
The parties have filed, and agreed to, the following stipulated findings of fact. Many of the proposed facts are supported by either affidavits filed by individuals who were involved in this process or by other forms of documentation, i.e., text messages, emails, telephone records, etc. The court will comment further on the supporting documentation after recitation of the stipulated facts.
1. The Connecticut Democratic Party (the "Party") held its nominating convention for the 16th Senate District on May 21, 2018.
2. Plaintiff did not receive the endorsement of the delegates but she did garner enough votes to be eligible to run in the August 14, 2018 primary.
3. In order to notify the Secretary of her intent to be placed on the August 14, 2018 primary ballot, Plaintiff, the convention officials, or someone on Plaintiff’s behalf was required to file a completed Certificate of Eligibility for Primary with the Secretary "not later than four o’clock p.m. on the fourteenth day following the close of the district convention ..." General Statutes § 9-400(b).
4. The deadline for Plaintiff’s form was Monday, June 4, 2018.
5. On Friday, May 25, 2018, Plaintiff submitted her form to the Secretary at around 9:07 a.m.
6. At 9:37 a.m., on May 25, 2018, a staff member in the Secretary’s Election Division, Heather Augeri, alerted the Special Assistant to the Chief of Staff to the Secretary, Moriah Moriarty, to the fact that Plaintiff had neglected to include the district number on her form.
7. The next business day, Ms. Moriarty contacted the Connecticut Democratic Party to have a staff member come to the Secretary’s office to fill in the omission on Plaintiff’s form and correct other candidate forms.
8. Two days later, on May 31, 2018, a representative from the Connecticut Democratic Party, Irene Clark-Burgess, came to the Secretary’s office to correct Plaintiff’s form and two other candidates’ forms.
9. Ms. Burgess incorrectly wrote the number "15" in the district number space of Plaintiff’s form. She then gave the form to Ms. Moriarty.
10. Ms. Moriarty did not review the forms Ms. Burgess had completed and was not aware of the error that had been made on Plaintiff’s form at that time.
11. Ms. Moriarty thought the problem with Plaintiff’s form had been resolved as of May 31, 2018.
12. On May 30, 2018, the Secretary’s Chief of Staff, Shannon Wegele also reached out to the Senate Democratic Caucus via email to have representative from that body come to the Secretary’s office and correct Plaintiff’s form.
13. On Friday, June 1, 2018, Ms. Wegele received the form Ms. Burgess had incorrectly changed the previous day from a staff member in the Elections Division, Ms. Augeri.
14. At 9:50 a.m., on June 1, 2018, Ms. Wegele forwarded that form to the Senate Democratic Caucus staff.
15. At around 3:30 p.m., on June 1, 2018, Plaintiff called Ms. Wegele on Ms. Wegele’s cell phone while Ms. Wegele was driving.
16. Plaintiff told Ms. Wegele that she had heard there was a problem with her form.
17. Based on the information Ms. Wegele had received from Ms. Augeri that morning- a copy of the completed form- Ms. Wegele told Plaintiff that the problem had been resolved. Ms. Wegele had no knowledge that the form was incorrect at that time.
18. Later that evening, Ms. Wegele forwarded the form to Plaintiff per Plaintiff’s request.
19. On Saturday, June 2, 2018, Plaintiff texted Ms. Wegele and advised Ms. Wegele about the incorrect district number on her form.
20. Plaintiff did not tell Ms. Wegele that the error needed to be remedied by 4 p.m. the next business day.
21. Ms. Wegele told Plaintiff that she would "fix it."
22. Ms. Wegele meant by her statement that she would ensure that the process of contacting the political party or caucus would be followed.
23. Ms. Wegele never told Plaintiff that she personally would alter the form or that anyone else in the Secretary’s office would change the form.
24. Neither Ms. Wegele nor anyone in the Secretary’s office altered Plaintiff’s form.
25. On Monday June 4, 2018, Ms. Wegele texted Ms. Moriarty and asked her to work on getting Plaintiff’s form corrected.
26. Neither Ms. Wegele nor Ms. Moriarty discussed their understanding that the deadline for Plaintiff’s form or that the deadline was that day.
27. The deadlines for filing forms varied depending on when the convention was held within a statutory the three-week window of time.
28. Ms. Moriarty mistakenly believed that the deadline was not Monday, June 4, 2018.
29. On Monday, June 4, 2018, Ms. Moriarty communicated with the Connecticut Democratic Party about the need to fix Plaintiff’s form. The Party is also informed of the filing deadlines for each convention.
30. Plaintiff never followed up on Monday, June 4, 2018, with Ms. Wegele or Ms. Moriarty about the status of her form or gave either the information about the specific deadline in her text to Ms. Wegele.
31. A representative from the Connecticut Democratic Party, Samuel Carmody, came to the Secretary’s office the next day, Tuesday, June 5, 2018, to fix Plaintiff’s form among other things.
32. On June 5, 2018, Plaintiff’s form was deemed untimely and Plaintiff was notified of its rejection.
33. Plaintiff would have corrected the form herself on June 4, 2018, if she had been told that she should do so.
34. Plaintiff received no communication from anyone on or before June 4, 2018, that either the Democratic Party or Senate Democratic Caucus had been or would be involved in correcting the form.
35. Neither plaintiff nor anyone acting with her knowledge or direction attempted to change the district from 15 to 16 on June 5, 2018.
In this case, the issue for the court to decide, in light of the mandatory language in General Statutes § 9-400(b) and the controlling precedent of Butts v. Bysiewicz, 298 Conn. 665, 5 A.3d 932 (2010), this court has authority to order the Secretary of the State to take an action the legislature has barred her from taking. For this to take place, the court must determine whether pursuant to Butts v. Bysiewicz, supra, 298 Conn. 676-77 n.7 "extraordinary circumstances" present an exception to the mandatory filing deadlines; whether these facts give rise to such an "extraordinary circumstance"; and whether the plaintiff has demonstrated the factual basis for a finding of equitable estoppel. There are no material facts in dispute relevant to these legal questions.
The statutory section which is applicable to this issue is General Statutes § 9-400(b) which states in relevant part:
(b) A candidacy for nomination by a political party to a district office may be filed by or on behalf of any person whose name appears upon the last-completed enrollment list of such party within the district the person seeks to represent that is in the office of the Secretary of the State at the end of the last day prior to the convention for the party from which the person seeks nomination and who has either (1) received at least fifteen per cent of the votes of the convention delegates present and voting on any roll-call vote taken on the endorsement or proposed endorsement of a candidate for such district office, whether or not the party-endorsed candidate for such office received a unanimous vote on the last ballot, ... Candidacies described in subdivision (1) of this subsection shall be filed by submitting to the Secretary of the State not later than four o’clock p.m. on the fourteenth day following the close of the district convention, a certificate, signed by such candidate and attested by either (A) the chairman or presiding officer, or (B) the secretary of the convention, that such candidate received at least fifteen per cent of such votes, and that the candidate consents to be a candidate in a primary of such party for such district office. Such certificate shall specify the candidate’s name as the candidate authorizes it to appear on the ballot, the candidate’s full residence address and the title and district of the office for which the candidacy is being filed. If such certificate for a district office is not received by the Secretary of the State by such time, such certificate shall be invalid and, for purposes of sections 9-416 and 9-416a, shall be deemed to have made no valid certification of nomination by a political party for such district office.
As noted previously, the case of Butts v. Bysiewicz, supra, 298 Conn. 665, provides legal precedent for the conclusion that the election statutes are mandatory and that the Secretary of the State has no discretion to accept a certificate of endorsement which has not been timely filed.
In Butts, the Supreme Court was faced with a case in which the plaintiff, Butts, was the Democratic party endorsed candidate for the position of judge of probate for the 32nd probate district. Butts filed his certificate of endorsement as the party’s endorsed candidate by forwarding the form to the Secretary of the State by first-class mail. The certificate of enforcement was never received by the Secretary of the State. Butts upon being notified that his certificate of endorsement had not been received within the 14-day period as required by General Statutes § 9-388, attempted to file a late certificate of endorsement with the Secretary of the State which was rejected. The appeal raised the issues of whether the language of the statute was mandatory and whether the court has equitable powers to "correct" the error. The Supreme Court concluded that compliance with the statutory deadline is mandatory and that the statute leaves the Secretary of the State without discretion to place a candidate’s name on the ballot when there is noncompliance.
It is important to quote from Butts the following language about the electoral process:
[I]n construing § 9-388, we are mindful that "[s]tate statutes which restrict the access of political parties to the ballot implicate associational rights as well as the rights of voters to cast their votes effectively. Munro v. Socialist Workers Party, 479 U.S. 189, 193, 107 S.Ct. 533, 93 L.Ed.2d 499 (1986)." Libertarian Party v. Herrera, 506 F.3d 1303, 1310 (10th Cir. 2007). "The right to associate with the political party of one’s choice is an integral part of this basic constitutional freedom ... Freedom of association means not only that an individual voter has the right to associate with the political party of her choice ... but also that a political party has a right to identify the people who constitute the association ... and to select a standard bearer who best represents the party’s ideologies and preferences." (Citation omitted; internal quotation marks omitted.) Nielsen v. Kezer, 232 Conn. 65, 86-87, 652 A.2d 1013 (1995). "Each provision of [an election] code, whether it governs the registration and qualifications of voters, the selection and eligibility of candidates, or the voting process itself, inevitably affects- at least to some degree- the individual’s right to vote and his right to associate with others for political ends. Anderson v. Celebrezze, 460 U.S. 780, 788 [103 S.Ct. 1564, 75 L.Ed.2d 547] (1983)." (Internal quotation marks omitted.) Burdick v. Takushi, 504 U.S. 428, 433, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992). Therefore, "[c]ommon sense, as well as constitutional law, compels the conclusion that government must play an active role in structuring elections; as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes." (Internal quotation marks omitted.) Id.Butts v. Bysiewicz, supra, 298 Conn. 673-74.
The Butts court further stated that mandatory filing statutes usually require strict compliance:
We note that it long has been settled in other jurisdictions that statutes employing such language in filing deadlines for ballot access are deemed mandatory, and that, with limited exceptions not implicated in the present case, strict compliance is required such that neither the election official nor the court can excuse a candidate’s inadvertent noncompliance.[fn7] See 26 Am.Jur.2d 47-48, Elections § 216 (2004); see, e.g., Andrews v. Secretary of State, 235 Md. 106, 109, 200 A.2d 650 (1964); Smith v. Kiffmeyer, 721 N.W.2d 912, 914-15 (Minn. 2006).Butts v. Bysiewicz, supra, 298 Conn. 676-77.
The Butts court noted, however, that exceptions may exist that give rise to equitable relief:
Some jurisdictions have concluded that, in extraordinary circumstances, courts can excuse a failure to comply with mandatory filing deadlines for declarations of candidacy due to (1) an action by the state, particularly election officials, causing the late filing, or (2) the impossibility of compliance. See, e.g., State v. Jeffery, 170 P.3d 226, 235 (Alaska 2007); Bayne v. Glisson, 300 So.2d 79, 82-83 (Fla.App.), cert. denied, 301 So.2d 778 (Fla. 1974); Ryshpan v. Cashman, 132 Vt. 628, 630, 326 A.2d 169 (1974); Donohoe v. Shearer, 53 Wash.2d 27, 30-31, 330 P.2d 316 (1958); see also In re Holmes, 346 N.J.Super. 372, 376-78, 788 A.2d 291 (App.Div. 2002) (absentee ballots counted despite delivery beyond statutory deadline for those ballots that would have arrived timely but for anthrax contamination causing processing delays at postal facility). No such circumstance is implicated in the present case, and we express no opinion as to whether courts would have authority to extend filing deadlines under such extraordinary circumstances.
Butts v. Bysiewicz, supra, 298 Conn. 676-77 n.7.
The Supreme Court’s language in footnote seven leaves room open for this court to decide whether an "extraordinary circumstance" is presented here which would allow the court to invoke its equitable powers to excuse the failure to strictly comply with the mandatory filing requirements.
Legal precedent that would allow the court to consider equitable relief in this matter comes from the doctrine of equitable estoppel.
In the case of Kimberly-Clark Corp. v Dubno, 204 Conn. 137, 527 A.2d 679 (1987), the Supreme Court affirmed the precedent for a claim of equitable estoppel to be invoked against a public agency:
"Under our well-established law, any claim of estoppel is predicated on proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury. Bozzi v. Bozzi, 177 Conn. 232, 242, 413 A.2d 834 (1979); Dupuis v. Submarine Base Credit Union, Inc., [supra ]; Pet Car Products, Inc. v. Barnett, 150 Conn. 42, 53-54, 184 A.2d 797 (1962)." Zoning Commission v. Lescynski, supra . In addition, estoppel against a public agency is limited and may be invoked: (1) only with great caution; (2) only when the action in question has been induced by an agent having authority in such matters; and (3) only when special circumstances make it highly inequitable or oppressive not to estop the agency. Id. ; Dupuis v. Submarine Base Credit Union, Inc., supra, 170 Conn. at 354, 365 A.2d 1093. As noted, this exception applies where the party claiming estoppel would be subjected to substantial loss if the public agency were permitted to negate the acts of its agents. " ‘[I]t is the burden of the person claiming the estoppel to show that he exercised due diligence to ascertain the truth and that he not only lacked knowledge of the true state of things but had no convenient means of acquiring that knowledge.’ Pet Car Products, Inc. v. Barnett, [supra ]; Linahan v. Linahan, 131 Conn. 307, 327, 39 A.2d 895 [1944]." Reinke v. Greenwich Hospital Assn., 175 Conn. 24, 28-29, 392 A.2d 966 (1978).Kimberly-Clark Corp. v. Dubno, supra, 204 Conn. 148; see also, Fadner v. Commissioner of Revenue Services, 281 Conn. 719, 726, 917 Conn. 540 (2006).
In Fadner v. Commissioner Revenue Services, supra, the Supreme Court reiterated the standard of review to guide the court on the resolution of equitable estoppel claims:
The party claiming estoppel ... has the burden of proof ... Whether that burden has been met is a question of fact that will not be overturned unless it is clearly erroneous ... A court’s determination is clearly erroneous only in cases in which the record contains no evidence to support it, or in cases in which there is evidence, but the reviewing court is left with the definite and firm conviction that a mistake has been made ... The legal conclusions of the trial court will stand, however, only if they are legally and logically correct and are consistent with the facts of the case ... Accordingly, we will reverse the trial court’s legal conclusions regarding estoppel only if they involve an erroneous application of the law. (Internal quotation marks omitted.) Celentano v. Oaks Condominium Ass’n, 265 Conn. 579, 614, 830 A.2d 164 (2003).
Fadner v. Commissoner of Revenue Services, supra, 281 Conn. 726; see also, O’Connor v. Waterbury, 286 Conn. 732, 758, 945 A.2d 930 (2008).
With this legal precedent in mind, the court reviews in further detail the facts presented in this matter.
The court finds that the most compelling facts and evidence that it has reviewed are contained in the following exhibits: exhibit E- text message on June 2 from the plaintiff to Shannon Wegele, Chief of Staff to the Secretary of the State and Ms. Wegele’s response; exhibit F- Ms. Wegele’s text to Ms. Moriarty, Special Assistant to Ms. Wegele on June 4; exhibit O- Ms. Wegele’s affidavit; exhibit P- Ms. Moriarty’s affidavit and the supplemental affidavit of the plaintiff filed on June 26, 2018.
This matter is unlike the facts in the Butts case. In Butts, the defendant, the Secretary of the State, never received the certificate of endorsement for the candidate Butts within the time frame of 14 days as required by General Statutes § 9-388. The plaintiff, Butts, did not become aware of the fact that the certificate of endorsement had not been received by the Secretary of the State until nearly six weeks after the filing deadline. Butts did not file his certificate of endorsement until nearly five weeks after he became aware of the fact that his certificate of endorsement had not been received by the Secretary of the State.
Here, the plaintiff, Ms. Nardello, filed her certificate of endorsement on May 25, 2018, eleven days before the filing deadline of June 4, 2018. Within approximately one half hour of the filing of the certificate of endorsement the Secretary of the State’s staff determined that the plaintiff had neglected to include the district number for the state Senate District. Ms. Moriarty, the Special Assistant to the Chief of Staff, was aware of the oversight on May 25, 2018. Rather than contact the plaintiff regarding the oversight, Ms. Moriarty contacted the Connecticut Democratic Party to have a staff member correct the omission. This took place on May 31, 2018, when Ms. Clark-Burgess, from the Connecticut Democratic Party, came to the Secretary of the State’s office to correct the plaintiff’s certificate, but incorrectly wrote the number 15 in the district number section, rather than 16. It was not until June 1, 2018, that the plaintiff was made aware by the Senate Democratic Caucus that there may be a problem with her certificate of endorsement. The plaintiff contacted Ms. Wegele by telephone to make inquiry regarding her certificate of endorsement. At that time the plaintiff was unaware that her original certificate of endorsement did not have a district number. The plaintiff became aware of that fact later on June 1, 2018, when Ms. Wegele forwarded an email to her. It was not until the next day, June 2, 2018, that the plaintiff reviewed the form that was attached to the email and discovered that the wrong district number had been filled in on her certificate of endorsement by Ms. Clark-Burgess. The plaintiff then sent a text message to Ms. Wegele which stated the following:
Shannon I am running in the 16th senatorial as the primary challenger not the 15th. Let me know if I have to do anything or can this be taken care of by your office. Sorry for all this confusion!
The response from Ms. Wegele on the same day was:
Okay I’ll fix it. No problem.
The plaintiff’s response to Ms. Wegele’s text was:
Thank you.
Ms. Wegele on June 4, 2018 notified Ms. Moriarty by text message of Ms. Nardello’s text message sent to her on June 2, 2018 about the plaintiff’s concerns regarding the incorrect district number.
In reviewing exhibit P, Ms. Moriarty’s affidavit, it is important to note Ms. Moriarty’s recitation in paragraph 16 indicates that if she was aware that the deadline was June 4, 2018, for Ms. Nardello’s certificate of endorsement, she would have contacted Mr. Carmody from the Democratic Party to rush over to correct the form. It is also noted in exhibit O, that Ms. Wegele indicates that this is the "only" case where deficiency was not timely cured and a candidate for the General Assembly was not placed on the ballot.
Finally, the plaintiff, in her supplemental affidavit of June 26, 2018, stated the following which the Secretary of the State has agreed to for purposes of this matter:
10. I was not aware of any possible involvement by volunteers or state party employees in the process of amending forms on or before June 4, 2018. I would have corrected the form myself on June 4, 2018, if I had been told that I should do so.
11. I received no communication or information from anyone on or before June 4, 2018, that either the Democratic Party or Senate Democratic Caucus had been or would be involved in correcting the form.
In the present case, the court concludes that Ms. Nardello did diligently file her certificate of endorsement well before the due date. Furthermore, when the initial determination was made by the Secretary of the State’s office that the certificate did not have a district number included, Ms. Nardello was not notified of the oversight. Rather the Secretary of the State’s office through its Special Assistant, Ms. Moriarty, notified the Connecticut Democratic Party to have a staff member come to the Secretary of the State’s office to correct the omission. Ms. Nardello was not aware that this took place, and only became aware of the issue regarding her certificate of endorsement after receiving notification from the Senate Democratic Caucus. The plaintiff then contacted Ms. Wegele, the Chief of Staff for the Secretary of the State, to determine the status of her certificate of endorsement. Ms. Wegele assured Ms. Nardello that the omission had been corrected. Ms. Wegele then forwarded a copy of the "corrected" certificate to Ms. Nardello. This was the first notification from the Secretary of the State’s office to Ms. Nardello about any problem that may have existed regarding her certificate of endorsement. At that time, on June 2, 2018, Ms. Nardello noted that the "correction" to the district number on her certificate was in fact erroneous. She immediately notified Ms. Wegele of the error, and made inquiry of Ms. Wegele as to whether she personally needed to do anything to correct the problem. She was advised by Ms. Wegele that she would "fix it." Ms. Nardello relied upon this representation made to her by Ms. Wegele.
It is obvious to the court that between the parties, different interpretations could be made as to who ultimately should have borne responsibility for correcting the error on Ms. Nardello’s certificate. However, the court finds that Ms. Nardello made appropriate efforts to resolve the error by notifying the defendant of the problem. Ms. Nardello relied on the response she received from the Secretary of the State’s office that the matter would be corrected.
Ms. Nardello, relying on Ms. Wegele’s representation, made no further inquiry or efforts regarding the change needed to the certificate. This change of position by Ms. Nardello was to her detriment.
It is Ms. Nardello’s burden to prove that she exercised due diligence. The court finds that she has sustained that burden. She has proven that she lacked any knowledge of the original omission, the initial correction made to the form and of any involvement by the Democratic Party. She was also unaware of the office of the Secretary of the State’s communications with the Democratic Party about the problem with her certificate.
The court finds that in view of the facts that have been presented and agreed to by the parties, that equitable estoppel may be invoked by the court to rectify the result of the Secretary of the State not placing Ms. Nardello’s name on the Democratic primary ballot for the 16th State Senate District. The court further finds that Ms. Nardello relied on not taking any further action to correct her certificate of endorsement by a representative of the Secretary of the State and that "extraordinary circumstances" make it highly inequitable and oppressive not to estop the Secretary of the State.
In light of the foregoing, to allow the greatest scope for public participation in the electoral process; to allow candidates to get on the ballot; and to allow the voters a choice; the court enters a permanent injunction and writ of mandamus ordering the Secretary of the State to place the name of Vicki Orsini Nardello on the August 14, 2018 Democratic primary ballot for the 16th State Senate District.