Feehan v. Marcone ( 2019 )

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beginning of this opinion is the date the opinion was
released as a slip opinion. The operative date for the
beginning of all time periods for filing postopinion
motions and petitions for certification is the ‘‘officially
released’’ date appearing in the opinion.
This opinion is subject to revisions and editorial
changes, not of a substantive nature, and corrections
of a technical nature prior to publication in the
Connecticut Law Journal.
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JIM FEEHAN v. RICK MARCONE ET AL.
(SC 20216)
(SC 20217)
(SC 20218)
Robinson, C. J., and Palmer, McDonald, D’Auria, Mullins, Kahn and Ecker, Js.
Argued December 21, 2018—officially released January 30, 2019*
Procedural History
Action for a declaratory judgment ordering that a new
election be held for the office of state representative for
the 120th assembly district, and for other relief, brought
to the Superior Court in the judicial district of Fairfield,
where Philip L. Young III intervened as a defendant;
thereafter, the court, Bellis, J., granted the plaintiff’s
motion for an emergency temporary restraining order
and granted in part the intervening defendant’s motion
to dismiss, and the plaintiff, the defendant Denise Merrill
et al., and the intervening defendant, upon certification
by the Chief Justice pursuant to General Statutes § 52-
265a that a matter of substantial public interest was at
issue, filed separate appeals to this court. Affirmed in
part; reversed in part; judgment directed.
Proloy K. Das, with whom were Matthew A. Ciarleg-
lio and Kevin W. Munn, for the appellant in Docket
No. SC 20216 and the appellee in Docket Nos. SC 20217
and SC 20218 (plaintiff).
Michael K. Skold, assistant attorney general, with
whom, on the brief, was George Jepsen, former attorney
general, for the appellants in Docket No. SC 20217 and
the appellees in Docket Nos. SC 20216 and SC 20218
(defendant Denise W. Merrill et al.).
William M. Bloss, with whom were Alinor C. Sterling
and Emily B. Rock, for the appellant in Docket No. SC
20218 and the appellee in Docket Nos. SC 20216 and
SC 20217 (intervening defendant Philip L. Young III).
Opinion
ROBINSON, C. J. These expedited public interest
appeals arise from an apparent mix-up at the Bunnell
High School polling place in the town of Stratford
(town), where it is alleged that approximately seventy-
six voters who should have received ballots for the
120th assembly district election were instead given bal-
lots for the 122nd assembly district, rendering those
voters unable to vote for their assembly district’s state
representative. The plaintiff, Jim Feehan, who is the
Republican Party’s candidate for state representative in
the 120th assembly district, brought this action seeking
declaratory relief, a new election, and an injunction
prohibiting the defendants, Secretary of the State
Denise W. Merrill, Treasurer Denise L. Nappier, and
Comptroller Kevin Lembo (state defendants), from
declaring the intervening defendant, Phillip L. Young
III, the Democratic Party’s candidate, as the winner of
that election.1 After the Chief Justice granted the par-
ties’ separate applications for permission to appeal pur-
suant to General Statutes § 52-265a, the plaintiff
appealed from the judgment of the trial court dismissing
the complaint in part as barred by the elections clause
set forth in article third, § 7, of the Connecticut constitu-
tion,2 and the defendants appealed from the grant of
the plaintiff’s application for a temporary injunction.3
We conclude that the elections clause gives our state
House of Representatives exclusive jurisdiction over
this election contest, and we disagree with the plaintiff’s
claims that (1) General Statutes § 9-328,4 which governs
contested elections for ‘‘municipal office,’’ confers juris-
diction on the courts over this case, and (2) under the
supremacy clause of the United States constitution; see
U.S. Const., art. VI, cl. 2;5 state courts have jurisdiction
over his federal constitutional claims, notwithstanding
the elections clause in the Connecticut constitution.
Accordingly, we also agree with the defendants’ claim
that the trial court lacked jurisdiction to enjoin the state
defendants from canvassing the votes and declaring a
winner. We, therefore, affirm the judgment of the trial
court insofar as it dismissed the complaint and reverse
the judgment of the trial court with respect to its issu-
ance of a temporary injunction.
The record reveals the following facts, as alleged in
the operative complaint, and procedural history. On
November 6, 2018, the election for the state representa-
tive for the 120th assembly district took place. There
were three candidates for that position: the plaintiff,
who was endorsed by the Republican Party and the
Independent Party, Young, who was endorsed by the
Democratic Party, and a petitioning candidate, Prez
Palmer. One of the polling places for the 120th assembly
district was Bunnell High School, which also served as
a polling place for the 122nd assembly district. At some
point midday, a packet of ballots for the 122nd assembly
district was distributed to voters in the voting line for
the 120th assembly district. As a result, approximately
seventy-six voters who received those ballots were
unable to cast a vote for the office of state representa-
tive from the 120th assembly district.6 A voter detected
the mistake and reported it to the moderator, who
replaced the 122nd assembly district ballots with the
correct ones and noted the incident in his log, allowing
for investigation by the town registrar of voters after
the election.
After the initial vote tabulation for the 120th assembly
district, the vote count was 5217 votes for Young, 5199
votes for the plaintiff, and 55 votes for Palmer. Because
there was a difference of only 18 votes between Young
and the plaintiff, a statutory recanvass was required
pursuant to General Statutes § 9-311a. That recanvass
was held on November 13 and 14, 2018, and resulted
in 5222 votes for Young and 5209 votes for the plaintiff,
a difference of 13 votes. Palmer again received 55 votes.
On November 15, 2018, the plaintiff filed a complaint
in the trial court, seeking the following relief: (1) ‘‘a
declaration that, as a result of the errors committed at
the Bunnell [High School] polling place and resulting
disenfranchisement of voters in the 120th assembly dis-
trict, a new election must be held for the office of state
representative for the 120th [assembly] district’’; (2) ‘‘a
mandatory injunction requiring the defendants to hold
a special election for the office of state representative
in the 120th assembly district’’; and (3) ‘‘a prohibitory
injunction precluding [the state defendants] from
declaring a candidate elected state representative in
the 120th assembly district before a new election is
held.’’ The plaintiff subsequently amended that com-
plaint to include claims pursuant to 42 U.S.C. § 1983,
alleging that the voters who received incorrect ballots
had been deprived of their fundamental rights to vote
and to equal protection of the laws under the United
States constitution. In addition, the plaintiff filed an
application for a temporary injunction7 barring the state
defendants from canvassing the votes for state repre-
sentative from the 120th assembly district or declaring
the results of any such canvass.
After the trial court granted Young’s motion for per-
mission to intervene in the action as a defendant, he—
supported by the state defendants—moved to dismiss
the amended complaint8 for lack of jurisdiction, arguing
that, under the elections clause of the Connecticut con-
stitution, our state House of Representatives has exclu-
sive jurisdiction to resolve election disputes involving
the election of its members. Young also objected to the
plaintiff’s application for a temporary injunction. The
plaintiff objected to the motion to dismiss, contending
that the trial court had jurisdiction to grant relief pursu-
ant to § 9-328, and that he did not seek to challenge the
final decision as to who won the election but, rather,
whether the election was conducted under ‘‘procedures
that comply with the General Statutes and the state and
federal constitutions.’’
After conducting a hearing on the motion to dismiss
the amended complaint, the trial court granted the
motion in part with respect to the plaintiff’s requests
for a declaration and mandatory injunction requiring a
new election for the office of state representative for
the 120th assembly district.9 The court concluded that
our state House of Representatives had exclusive juris-
diction over those matters pursuant to our state elec-
tions clause, even though the plaintiff had also asserted
federal claims pursuant to 42 U.S.C. § 1983. The court
granted, however, the plaintiff’s request for a temporary
injunction enjoining the state defendants from can-
vassing the votes or declaring the winner of the election
pursuant to General Statutes § 9-319,10 reasoning that
the ‘‘limited exercise of its jurisdiction over the applica-
tion’’ for the injunction was necessary to maintain the
status quo and to ‘‘ensur[e] that the House [of Represen-
tatives] has an opportunity to exercise its authority.’’
The trial court rendered judgment accordingly. These
expedited public interest appeals pursuant to § 52-
265a followed.
We held oral argument in these appeals on December
21, 2018.11 Immediately after oral argument, we issued
the following order: ‘‘After a hearing and based on the
record and claims before the court, it is hereby ordered
that the judgment of the trial court is affirmed insofar
as it lacks jurisdiction at this time. In accordance with
this determination, it is further ordered that the trial
court’s injunction is vacated. A written decision will
follow.’’ This is that written decision.
‘‘A motion to dismiss . . . properly attacks the juris-
diction of the court, essentially asserting that the plain-
tiff cannot as a matter of law and fact state a cause of
action that should be heard by the court.’’ (Internal
quotation marks omitted.) Giannoni v. Commissioner
of Transportation, 322 Conn. 344, 349, 141 A.3d 784
(2016). Thus, ‘‘[w]e begin with the standard of review
and the general principles governing a trial court’s dis-
position of a motion to dismiss that challenges jurisdic-
tion.’’ Rocky Hill v. SecureCare Realty, LLC, 315 Conn.
265, 276, 105 A.3d 857 (2015). ‘‘A determination regard-
ing a trial court’s subject matter jurisdiction is a ques-
tion of law,’’ particularly when it presents questions
of constitutional and statutory interpretation. (Internal
quotation marks omitted.) Id. Accordingly, ‘‘[o]ur
review of the court’s ultimate legal conclusion[s] and
resulting [determination] of the motion to dismiss will
be de novo. . . .
‘‘Depending on the record before it, a trial court ruling
on a motion to dismiss for lack of subject matter juris-
diction pursuant to Practice Book § 10-31 (a) (1) may
decide that motion on the basis of: (1) the complaint
alone; (2) the complaint supplemented by undisputed
facts evidenced in the record; or (3) the complaint
supplemented by undisputed facts plus the court’s reso-
lution of disputed facts. . . . Different rules and
procedures will apply, depending on the state of the
record at the time the motion is filed. . . .
‘‘If [as here] the court decides the motion on the basis
of the complaint alone, it must consider the allegations
of the complaint in their most favorable light. . . . In
this regard, a court must take the facts to be those
alleged in the complaint, including those facts necessar-
ily implied from the allegations, construing them in
a manner most favorable to the pleader.’’ (Citations
omitted; internal quotation marks omitted.) Id., 276–77.
I
THE PLAINTIFF’S APPEAL
In attacking the trial court’s jurisdictional conclusion,
the plaintiff contends that (1) the elections clause of
the Connecticut constitution does not ‘‘divest the judi-
ciary of jurisdiction over this dispute,’’ (2) § 9-328 pro-
vides a statutory basis for jurisdiction, and (3) the
supremacy clause of the United States constitution ren-
ders inapplicable any restriction imposed by the state
elections clause with respect to his federal constitu-
tional claims brought pursuant to 42 U.S.C. § 1983. We
address each of these claims in turn.
A
Whether the Elections Clause Divests State
Courts of Jurisdiction over This Case
We begin with the plaintiff’s claim that the elections
clause does not divest state courts of jurisdiction over
this case. The plaintiff contends that the plain language
of the elections clause, which makes ‘‘each house . . .
the final judge of the election returns and qualifications
of its own members’’; Conn. Const., art. III, § 7; renders
final the legislature’s judgment about which candidate
received the most votes during the election, but does
not give the General Assembly ‘‘any authority to resolve
disputes concerning the procedures employed during
an election, much less [the] sole authority to do so.’’
In support of this argument, the plaintiff relies on
Roudebush v. Hartke, 405 U.S. 15, 92 S. Ct. 804, 31 L.
Ed. 2d 1 (1972), and decisions of several sister state
courts; see, e.g., State ex rel. Wahl v. Richards, 44 Del.
566, 64 A.2d 400 (1949); State ex rel. Wheeler v. Shelby
Circuit Court, 267 Ind. 265, 369 N.E.2d 933 (1977); State
ex rel. Olson v. Bakken, 329 N.W.2d 575 (N.D. 1983);
McGann v. Board of Elections, 85 R.I. 223, 129 A.2d
341 (1967); McIntyre v. Wick, 558 N.W.2d 347 (S.D.
1996); in support of the ‘‘distinction between the author-
ity to determine which candidate is entitled to be seated
in the legislature (which is the purview of each house
of the legislature), and the authority to decide disputes
over the election process itself.’’ The plaintiff further
argues that only the courts, and not the state House of
Representatives, have the institutional authority to
issue the requested equitable relief, namely, a new elec-
tion. The plaintiff emphasizes that ‘‘he is not asking the
court to declare him the winner of the election’’ but,
instead, ‘‘is asking the court to remedy constitutional
and statutory violations in the administration of the
election . . . which is a core function of the judiciary.’’
In response, the defendants contend that the plain-
tiff’s interpretation of the elections clause would ‘‘inject
our courts into a General Assembly election . . . for
the first time in our history’’ and that the state House
of Representatives ‘‘is the sole entity that is constitu-
tionally authorized to determine how such disputes
shall be resolved.’’ Relying on State ex rel. Morris v.
Bulkeley, 61 Conn. 287, 23 A. 186 (1892), Selleck v.
Common Council, 40 Conn. 359 (1873), and In re Appli-
cation of Mylchreest, 6 Conn. Supp. 435 (1938), together
with a decision of the United States Court of Appeals
for the District of Columbia Circuit interpreting the
elections clause of the United States constitution, Mor-
gan v. United States, 801 F.2d 445 (D.C. Cir. 1986), cert.
denied, 480 U.S. 911, 107 S. Ct. 1359, 94 L. Ed. 2d 529
(1987), the defendants argue that the House of Repre-
sentatives—acting via its contested elections commit-
tee pursuant to House Rule No. 19—has ‘‘exclusive
jurisdiction over house elections contests.’’ See House
Res. No. 2, 2019 Sess. (adopted January 9, 2019). The
defendants further argue that Roudebush v. Hartke,
supra, 405 U.S. 15, and the sister state cases on which
the plaintiff relies are distinguishable because the
courts in those cases had specific statutory authoriza-
tion to act, and also had functioned ministerially to
order recounts, rather than to render a ‘‘judicial finding
that the election process was so unreliable that a new
election should be ordered . . . .’’ Young then con-
tends that Connecticut’s elections clause provides the
legislature with the authority to declare a vacancy and
order a special election to fill it, upon a determination
that the elections process was fatally flawed in this
case. We agree with the defendants and conclude that
the elections clause divested the courts of authority
over the election contest at issue in this case.
In State v. Geisler, 222 Conn. 672, 684–86, 610 A.2d
1225 (1992), we enumerated the following six factors
to be considered in construing the state constitution:
‘‘(1) persuasive relevant federal precedents; (2) the text
of the operative constitutional provisions; (3) historical
insights into the intent of our constitutional forebears;
(4) related Connecticut precedents; (5) persuasive prec-
edents of other state courts; and (6) contemporary
understandings of applicable economic and sociologi-
cal norms, or as otherwise described, relevant public
policies. . . .
‘‘The Geisler factors serve a dual purpose: they
encourage the raising of state constitutional issues in
a manner to which the opposing party . . . can
respond; and they encourage a principled development
of our state constitutional jurisprudence. Although in
Geisler we compartmentalized the factors that should
be considered in order to stress that a systematic analy-
sis is required, we recognize that they may be inextrica-
bly interwoven. . . . [N]ot every Geisler factor is
relevant in all cases. . . . Moreover, a proper Geisler
analysis does not require us simply to tally and follow
the decisions favoring one party’s state constitutional
claim; a deeper review of those decisions’ underpin-
nings is required because we follow only persuasive
decisions.’’ (Citation omitted; internal quotation marks
omitted.) Doe v. Hartford Roman Catholic Diocesan
Corp., 317 Conn. 357, 407–408, 119 A.3d 462 (2015); see
also Connecticut Coalition for Justice in Education
Funding, Inc. v. Rell, 295 Conn. 240, 271 n.26, 990 A.2d
206 (2010) (plurality opinion) (‘‘the Geisler framework
is equally useful in analyzing the scope of a right guaran-
teed by the state constitution that has no federal analog’’
[internal quotation marks omitted]); Honulik v. Green-
wich, 293 Conn. 641, 648 n.9, 980 A.2d 845 (2009)
(‘‘Although we typically employ a Geisler analysis to
determine whether a provision of our constitution
affords broader individual rights than an analogous pro-
vision of the United States constitution . . . we have
at times considered the Geisler factors in interpreting
language in our constitution that does not have a similar
federal counterpart. . . . We consider a structured and
comprehensive approach to be helpful in either con-
text.’’ [Citations omitted.]).
We begin with the relevant constitutional text, which
provides in relevant part: ‘‘The treasurer, secretary of
the state, and comptroller shall canvass publicly the
votes for senators and representatives. The person . . .
in each assembly district having the greatest number
of votes for representative shall be declared to be duly
elected for such district. . . . The return of votes, and
the result of the canvass, shall be submitted to the
house of representatives and to the senate on the first
day of the session of the general assembly. Each house
shall be the final judge of the election returns and
qualifications of its own members.’’ (Emphasis added.)
Conn. Const., art. III, § 7. We note at the outset that the
plaintiff does not appear to dispute that this language
suggests that each house of the legislature has exclusive
jurisdiction over disputes that come within the scope
of the elections clause. Instead, he claims that disputes,
such as that presented in this case, concerning irregular-
ities in the conduct of the legislative election itself,
rather than the correctness of the tally of the votes
cast, simply do not come within the scope of that consti-
tutional provision. Although the use of the specific
phrase ‘‘election returns’’ may reasonably be read—as
argued by the plaintiff—to suggest that the legislature’s
exclusive jurisdiction is limited to vetting the state
defendants’ arithmetic,12 this narrow interpretation is
inconsistent with case law from Connecticut construing
our state elections clause and with federal and sister
state authority construing analogous constitutional pro-
visions.
Turning to Connecticut case law, the seminal case on
the elections clause is In re Application of Mylchreest,
supra, 6 Conn. Supp. 436, in which our Superior Court
concluded that, under the elections clause—then set
forth within article third, § 6, of the 1818 Connecticut
constitution—it is ‘‘not proper for any court to be given
power to pass upon the question as to who has been
elected state senator or representative.’’ The court
rejected an application for an order seeking a recount
of votes in a state senate election because ‘‘a judge of
the Superior Court has no jurisdiction to declare [the
applicant] elected as senator [or] to issue a certificate
to that effect, nor has a judge of the Superior Court
jurisdiction to grant any other ultimate relief . . . . No
statute authorizes a judge of the Superior Court to order
a recount of votes for [s]tate [s]enator and failing that
and likewise lacking jurisdiction to grant any relief
which would be predicated on a finding as to what the
actual vote was, such a judge has no jurisdiction either
to order a recount or make such a finding.’’ Id., 437. In
so concluding, the Superior Court relied on this court’s
decision in Selleck v. Common Council, supra, 40 Conn.
359, which held that, by using the word ‘‘final’’ in legisla-
tion providing that ‘‘ ‘the board of councilmen . . .
shall be the final judges of the election returns and of
the validity of elections and qualifications of its own
members’ ’’; id., 360 (preliminary statement of facts and
procedural history); the legislature ‘‘intended to divest
the Superior Court of jurisdiction . . . and make the
common council the sole tribunal to determine the
legality of the election of its members.’’ (Emphasis
added.) Id., 362; see also In re Application of Mylch-
reest, supra, 436. Moreover, in State ex rel. Morris v.
Bulkeley, supra, 61 Conn. 362, this court stated that,
‘‘[w]hen the people, speaking in their sovereign capacity
by the constitution, appoint a single tribunal to ascer-
tain and declare a certain result, and that tribunal does
so ascertain and declare, there is no other authority
that can interfere with or revise such declaration and
change the result.’’
With respect to the constitutional history, there was
‘‘no significant debate in either 1818 or 1965’’ at the
constitutional conventions with respect to the elections
clause, which originally dates to 1818. W. Horton, The
Connecticut State Constitution (2d Ed. 2012), pp. 115–
16. Particularly given the importance in 1818 of the
concept of the separation of powers;13 see id., pp. 11–13;
this silence directs our attention to the federal authority
discussing the history of the elections clause of the
United States constitution,14 because ‘‘[w]hen the states
of the union adopted their own constitutions most fol-
lowed both the substance and the procedures adopted
by the founding fathers in the federal constitution.’’
Kinsella v. Jaekle, 192 Conn. 704, 721, 475 A.2d 243
(1984). Thus, the elections clause of the Connecticut
constitution, which differs only slightly from its federal
counterpart, ‘‘may be understood in light of . . . fed-
eral provisions and the intent of the founding fathers
. . . .’’ (Footnote omitted.) Id.; see also id., 717–18 (rely-
ing on history of United States constitution for historical
analysis of impeachment power under 1818 constitution
given that ‘‘records of the constitutional convention of
1818 do not explain the framers’ reasons’’ for ‘‘specifi-
cally reserv[ing] the power of impeachment and
removal of executive and judicial officers to the Gen-
eral Assembly’’).
Our discussion of federal authority begins with the
United States Supreme Court’s decision in Roudebush
v. Hartke, supra, 405 U.S. 15, upon which the plaintiff
relies heavily. In that case, the Supreme Court consid-
ered whether Indiana’s state statutory recount proce-
dure was a valid exercise of the state’s power to
prescribe the time, place, and manner of holding an
election pursuant to article one, § 4, of the United States
constitution15 or, instead, was an unconstitutional
infringement on the United States Senate’s power under
the elections clause of the United States constitution;
see footnote 14 of this opinion; to judge the election
returns for its own members. See Roudebush v. Hartke,
supra, 23–24. The court acknowledged that ‘‘a [s]tate’s
verification of the accuracy of election results pursuant
to its [article one, § 4 powers] is not totally separable
from the Senate’s power to judge elections and returns.’’
Id., 25. The court concluded, however, that ‘‘a recount
can be said to ‘usurp’ the Senate’s function only if it
frustrates the Senate’s ability to make an independent
final judgment. A recount does not prevent the Senate
from independently evaluating the election any more
than the initial count does. The Senate is free to accept
or reject the apparent winner in either count, and, if it
chooses, to conduct its own recount.’’ (Emphasis
added; footnotes omitted.) Id., 25–26. Accordingly, the
court concluded that Indiana’s statutory recount proce-
dure was constitutional. Id., 26; see also McIntyre v.
Fallahay, 766 F.2d 1078, 1086 (7th Cir. 1985) (noting
that ‘‘states may give advice’’ to Congress regarding
apparent winner of election ‘‘in accordance with their
own rules,’’ although Congress may ignore that advice);
Durkin v. Snow, 403 F. Supp. 18, 20 (D.N.H. 1974)
(under Roudebush, New Hampshire statute authorizing
recount procedure for election for office of United
States senator was constitutional); Franken v. Paw-
lenty, 762 N.W.2d 558, 562–63 (Minn. 2009) (state statute
authorizing court to make findings and conclusions as
to which party received highest number of votes in
election for United States senator did not violate federal
elections clause).
We read Roudebush to hold only that state legisla-
tures have constitutional authority pursuant to article
one, § 4, of the United States constitution to enact their
own laws for the purpose of verifying the accuracy of
the results in Congressional elections, subject to the
right of each house of Congress to make a final determi-
nation on that issue. Roudebush does not stand for the
proposition that the elections clause affords the courts
an inherent role in resolving a dispute over a legislative
election, particularly in the absence of statutory author-
ity to do so. Instead, post-Roudebush federal case law
interpreting the elections clause of the United States
constitution even more clearly supports the exclusivity
of the legislative branch’s jurisdiction to determine the
lawfulness of an election to that body. The leading case
on this point is the decision of the District of Columbia
Circuit in Morgan v. United States, supra, 801 F.2d 445.
In an opinion written by then Judge Antonin Scalia, the
court concluded that the elections clause deprived it
of ‘‘jurisdiction to review the substance or procedure
of a determination by the [United States] House of Rep-
resentatives that one of two contestants was lawfully
elected to that body.’’ Id. The court concluded that it
lacked subject matter jurisdiction over numerous con-
stitutional and federal claims brought to challenge the
party line decision of the House of Representatives—
following a task force investigation and recount—to
reject a state recount declaring the Republican candi-
date the winner and to seat, instead, the Democratic
candidate. Id., 446. Following Roudebush, the court con-
cluded that it lacked jurisdiction over these claims
because the elections clause of the United States consti-
tution ‘‘unambiguously proscribes judicial review of the
proceedings in the House of Representatives that led
to the seating of’’ the Democratic candidate and that it
would be ‘‘difficult to imagine a clearer case of ‘textually
demonstrable constitutional commitment’ of an issue
to another branch of government to the exclusion of the
courts16 . . . than the language of [the federal elections
clause], that ‘[e]ach House shall be the Judge of the
Elections, Returns and Qualifications of its own Mem-
bers.’ The provision states not merely that each House
‘may judge’ these matters, but that each House ‘shall
be the Judge’ . . . . The exclusion of others—and in
particular of others who are judges—could not be more
evident. Hence, without need to rely upon the amor-
phous and partly prudential doctrine of ‘political ques-
tions,’ . . . we simply lack jurisdiction to proceed.’’17
(Citations omitted; emphasis altered; footnote added.)
Id., 446–47.
Significant to our historical analysis under Geisler is
the court’s observation in Morgan that the ‘‘history of
the [federal elections clause] is entirely consistent with
its plain exclusion of judicial jurisdiction. In the forma-
tive years of the American republic, it was the uniform
practice of England and America for legislatures to be
the final judges of the elections and qualifications of
their members. . . . There was no opposition to the
[e]lections [c]lause in the [f]ederal [c]onstitutional
[c]onvention . . . and the minor opposition in the rati-
fication debates focused upon the clause’s removal of
final authority not from the courts, but from the state
legislatures, where the Articles of Confederation had
vested an analogous power. . . . It is noteworthy that
none of the responses to the opposition mentions the
safeguard of judicial review. Such a safeguard was evi-
dently unthinkable, since the determination of the legis-
lative House was itself deemed to be a judicial one.’’
(Citations omitted; emphasis added; internal quotation
marks omitted.) Id., 447. The court cited James Kent for
the proposition that the legislature, in judging election
returns and the qualification of its members, acts in a
‘‘ ‘a judicial character’ ’’ and that such decisions, ‘‘ ‘like
the decisions of any other court of justice, ought to
be regulated by known principles of law, and strictly
adhered to, for the sake of uniformity and certainty.’ ’’
(Emphasis altered.) Id., citing 1 J. Kent, Commentaries
on American Law (8th Ed. 1854), p. 248. Thus, the court
further emphasized that the federal elections clause’s
‘‘command to ‘be the Judge of . . . Elections’ excludes
other judges.’’ Morgan v. United States, supra, 801 F.2d
450; see also McIntyre v. Fallahay, supra, 766 F.2d
1082 (‘‘[I]t is inappropriate for a federal court even
to intimate how Congress ought to have decided’’ an
election dispute because ‘‘[t]he House is not only ‘Judge’
but also final arbiter. Its decision about which ballots
count, and who won, [is] not reviewable in any court.’’).
Turning to a review of the sister state decisions, we
note that the ‘‘almost universal constitutional doctrine
in the United States and the several states which have
constitutions containing this or similar provisions is
that . . . [e]ach legislative body is the sole judge of
the elections, returns, and qualifications of its own
members, and its action in admitting or expelling a
member is not reviewable in the courts. Furthermore,
a statute which requires a court to inquire into the
commission of corrupt practices in the election of a
member of the legislature is not constitutional.’’18 (Inter-
nal quotation marks omitted.) Foster v. Harden, 536
So. 2d 905, 906 (Miss. 1988), overruled on other grounds
by Dillon v. Myers, 227 So. 3d 923 (Miss. 2017). Thus,
consistent with the District of Columbia Circuit’s deci-
sion in Morgan, the vast majority of our sister states
hold that courts lack jurisdiction to entertain a contest
pertaining to a legislative election, particularly in the
absence of statutory authorization to do so. See Beatty
v. Myrick, 218 Ga. 629, 629, 129 S.E.2d 764 (1963) (trial
court lacked jurisdiction over ‘‘equitable action in which
the plaintiffs seek to have adjudicated which of two
named candidates was legally elected to represent’’
state senate district because state constitution’s elec-
tions clause ‘‘vested [state senate] with exclusive power
to adjudge the qualifications of its own members’’);
Stephenson v. Woodward, 182 S.W.3d 162, 168–69 (Ky.
2005) (rejecting argument under state constitution’s
elections clause that court lacked subject matter juris-
diction to entertain challenge to candidate’s qualifica-
tions to appear on ballot, filed before election, because
it ‘‘does not involve an election contest,’’ namely, a
‘‘[postelection] procedure involving an election that has
been held,’’ as authorizing statute did not require adjudi-
cation of dispute before election);19 Wheatley v. Secre-
tary of Commonwealth, 439 Mass. 849, 853 and n.8,
792 N.E.2d 645 (2003) (concluding that court lacked
authority under state constitution’s elections clause to
order new election in light of decision by state house
of representatives to seat candidate, but ‘‘express[ing]
no opinion whether any differences in those facts,
sequence of events, or procedural history might have
affected the outcome of [the] proceedings’’); Scheibel v.
Pavlak, 282 N.W.2d 843, 847–48 (Minn. 1979) (observing
that, under state constitution’s elections clause, courts’
statutory jurisdiction over legislative election contests
left state supreme court without ‘‘jurisdiction to issue
a final and binding decision in [the] matter, and our
opinion by statute will be and by the [state constitution]
must only be advisory to the [state] House of Represen-
tatives,’’ but leaving for another day constitutionality
of that question under separation of powers and preclu-
sion on advisory opinions); Dillon v. Meyers, 227 So.
3d 923, 927–28 (Miss. 2017) (concluding that state con-
stitution’s elections clause ‘‘places judging the election
of members of the [l]egislature in the [l]egislature’s
bailiwick,’’ for purposes of ‘‘general [or special] elec-
tions,’’ with separate constitutional clause governing
party primaries and ‘‘requir[ing] the [l]egislature to
enact laws to secure fairness in primary elections,’’
operating to afford state courts jurisdiction over legisla-
tive primary election dispute); Gammage v. Compton,
548 S.W.2d 1, 5 (Tex. 1977) (rejecting reliance on Roude-
bush, and construing statute giving state court ‘‘original
and exclusive jurisdiction of all contests of elections,
general or special, for all school, municipal, precinct,
county, district, state offices, or federal offices’’ as inap-
plicable to federal congressional elections because of
federal elections clause).
A separate line of sister state cases holds, consistent
with Roudebush, that state legislatures may enact stat-
utes setting forth procedures by which the vote may
be tabulated and, in the case of close elections, retabu-
lated, in elections for state legislative office—provided
that those statutes do not impinge on the ultimate con-
stitutional right and obligation of the legislative body
to judge the election returns for its own members.20
See Meyer v. Lamm, 846 P.2d 862, 870 (Colo. 1993)
(‘‘proceedings involving recounts of election results
which are inherently tentative and are not final or con-
clusive, and in which recounts are conducted pursuant
to the election laws prior to the certification by the
secretary of state that a person has been duly elected,
are not ‘election contests’ ’’ for purpose of state consti-
tution’s elections clause); State ex rel. Wheeler v. Shelby
Circuit Court, supra, 267 Ind. 268 (statute requiring
court to order and superintend recount involving state
legislative office did not impinge on legislature’s author-
ity under elections clause because recount is not bind-
ing and ‘‘is merely an extension of this voting process
and has been provided for by the legislature in an effort
to [ensure] the correctness of the vote count’’); Rice v.
Power, 19 N.Y.2d 106, 108, 224 N.E.2d 865, 278 N.Y.S.2d
361 (1967) (statute conferring jurisdiction on court to
order recanvass of ballots in order to ensure ‘‘that the
certificate reflect[s] an accurate tally of the votes cast’’
did not impinge on constitutional authority of constitu-
tional convention to judge election returns of its mem-
bers when convention remained free to disregard
certificate of election); Williamson v. State Election
Board, 431 P.2d 352, 355–56 (Okla. 1967) (court has
constitutional authority to enforce statutory recount
procedure by order of mandamus); McIntyre v. Wick,
supra, 558 N.W.2d 356–57 (concluding that statute con-
ferring power on state supreme court to review proce-
dures of judicially appointed recount boards that was
‘‘necessary to guard against irregularities and errors in
the tabulation of votes and [to verify] the accuracy
of elections results’’ did not violate elections clause
because court ‘‘lack[ed] . . . any jurisdiction to dictate
the final determination of a legislative election,’’ and
noting that its ‘‘review of a recount and judgment in
such a proceeding merely constitutes evidence’’ [foot-
note omitted]).
In our view, these recount cases are distinguishable
because a recount is a process that requires the ministe-
rial action of tallying the votes cast—thus ensuring the
accuracy of the vote tally that the legislature is ulti-
mately to consider—rather than finding facts in a judi-
cial manner with respect to the fairness or legality of
the underlying elections process. See Young v. Mikva,
66 Ill. 2d 579, 584–85, 363 N.E.2d 851 (1977) (distinguish-
ing Roudebush as upholding constitutionality of admin-
istrative recount of ballots under state procedures,
rather than sanctioning election contest for congres-
sional seat); Lamb v. Hammond, 308 Md. 286, 303–304,
518 A.2d 1057 (1987) (concluding that state constitution
did not preclude jurisdiction over action based ‘‘upon
a timely complaint that canvassing officials have
improperly refused to canvass votes that were lawfully
cast,’’ and that ‘‘the appropriate court . . . may inquire
into the matter, determine whether the administrative
officials have carried out their ministerial duties in
accordance with the law, and, if they have not, com-
mand them to do so,’’ because this exercise of jurisdic-
tion was ‘‘complementary’’ of legislature’s jurisdiction
over election contests under state elections clause);
McIntyre v. Wick, supra, 558 N.W.2d 356 n.7 (distin-
guishing ‘‘election contest,’’ which ‘‘relates to a determi-
nation of the election,’’ from ‘‘[a] recount [that] is
addressed only to the correct determination of the true
and actual count of the ballots cast,’’ and noting that
‘‘[d]uties in connection with a recount . . . are more
in the nature of a ministerial or administrative function
than a judicial or determinative function’’).
The plaintiff raises several prudential arguments to
bolster his interpretation of the elections clause that
would allow the exercise of jurisdiction by the courts
over legislative election disputes. He contends that the
courts must have jurisdiction over disputes involving
the election process because only they have the author-
ity to grant the relief that he is requesting, namely, a
new election. In support of this claim, he relies on the
statement of the North Dakota Supreme Court in State
ex rel. Olson v. Bakken, supra, 329 N.W.2d 579, that
‘‘the [l]egislature is not in a position to provide any
affirmative equitable remedy. The [l]egislature could
reject the ‘election’ of a legislator which may put into
operation certain provisions of the [state] [c]onstitution
and statutes resulting in the [g]overnor calling a special
election. But other affirmative equitable remedies
would not be available.’’ See also McIntyre v. Wick,
supra, 558 N.W.2d 356 n.7 (describing ‘‘dearth of affir-
mative equitable remedies available from the legislature
for irregularities in the election process’’). Second, the
plaintiff relies on the South Dakota Supreme Court’s
observation in McIntyre, supporting the complemen-
tary exercise of jurisdiction over election challenges by
the courts and the legislature, that the ‘‘legislature is
not normally in session when the general election is
held. Consequently, considerable confusion and delay
would result if the above superintending responsibili-
ties were borne exclusively by the legislature.’’ Id., 356;
see State ex rel. Olson v. Bakken, supra, 578 (same).
These arguments bring us, then, to the Geisler factor
requiring us to consider the public policy aspects of
the constitutional question.
First, we disagree with the plaintiff’s reliance on the
North Dakota decision in State ex rel. Olson v. Bakken,
supra, 329 N.W.2d 579. That decision is an outlier in
that it is one of the very few in which a state court has
held that a state constitutional provision analogous to
our elections clause does not confer exclusive jurisdic-
tion on each legislative house to judge the elections
returns for its own members.21 Moreover, the court in
Bakken cited no authority in support of its statement
that the only relief that a legislative house can provide
when exercising its power to judge election returns is
the rejection of a member and the scheduling of a spe-
cial election. Finally, Bakken is squarely distinguishable
because, unlike in the present case, that court had the
benefit of a broadly worded election contest statute to
support its exercise of jurisdiction.22 Accordingly, we
conclude that Bakken is of minimal persuasive value.
Instead, we find telling, as a public policy matter, the
absence of a statute authorizing elections contests in
state legislative elections, when the legislature has pro-
vided such a statute for virtually every other state, fed-
eral, and municipal election. See General Statutes § 9-
323 (election of presidential electors, United States Sen-
ator, and United States Representative); General Stat-
utes § 9-324 (election of probate judges and governor,
lieutenant governor, secretary of the state, treasurer,
attorney general, and comptroller); General Statutes
§ 9-328 (municipal officers and justice of peace); Gen-
eral Statutes § 9-329a (primary elections). The General
Assembly has simply passed no statute sharing its
authority over general legislative elections with the
courts. Insofar as the legislature has ‘‘primary responsi-
bility in pronouncing the public policy of our state’’;
(internal quotation marks omitted) Doe v. Hartford
Roman Catholic Diocesan Corp., supra, 317 Conn. 438;
we do not presume to fill this gap in our statutory
scheme, particularly given the questionable constitu-
tionality of doing so.23 See footnote 20 of this opinion.
Instead, our state House of Representatives has thus
far addressed this gap in the election contest statutory
scheme by adopting House Rule No. 19 to implement
its constitutional function of judging the elections
returns for its own members. The current version of
House Rule No. 19 provides: ‘‘At the opening of each
session a committee on contested elections, consisting
of four members, at least two of whom shall be members
of the minority party in the House, shall be appointed
by the speaker to take into consideration all contested
elections of the members of the House and to report
the facts, with their opinion thereon in a manner that
may be directed by House resolution.’’ House Res. No.
2, 2019 Sess. (adopted January 9, 2019). Inasmuch as
proceedings pursuant to House Rule No. 19 are ‘‘in a
judicial character’’; (emphasis omitted; internal quota-
tion marks omitted) Morgan v. United States, supra,
801 F.2d 448; we understand the committee, and our
state House of Representatives as a whole acting pursu-
ant to the opinion of the committee, to have all of the
powers that a judicial body would have. The exercise
of this judicial power ‘‘necessarily involves the ascer-
tainment of facts, the attendance of witnesses, the
examination of such witnesses, with the power to com-
pel them to answer pertinent questions, to determine
the facts and apply the appropriate rules of law, and,
finally, to render a judgment which is beyond the
authority of any other tribunal to review.’’24 (Emphasis
in original; internal quotation marks omitted.) Id.
Accordingly, in the absence of a rule, statute, or consti-
tutional provision otherwise limiting the state House
of Representatives’ remedial authority, we can see no
reason why it—sitting as a quasi-judicial body—would
lack that authority to order equitable remedies, includ-
ing a new election, upon receipt of the committee’s
report.25 See P. Salamanca & J. Keller, ‘‘The Legislative
Privilege to Judge the Qualifications, Elections, and
Returns of Members,’’ 95 Ky. L.J. 241, 338 (2007)
(describing Senate’s ‘‘pragmatic step of declaring [New
Hampshire] seat vacant’’ when, in ‘‘closest [United
States] Senate race in history, the Senate decided that
it could not satisfactorily determine [who] had pre-
vailed, yet no one had established that the two [candi-
dates] had received the same number of votes’’
[footnote omitted]). We conclude, therefore, that, as a
public policy matter, legislative election contests are
‘‘an adequate and constitutional remedy . . . .’’ Gam-
mage v. Compton, supra, 548 S.W.2d 4.
Our review of the Geisler factors leads us to conclude
that the elections clause affords the state House of
Representatives exclusive jurisdiction over the plain-
tiff’s election challenge in this case, particularly in the
absence of legislation sharing that jurisdiction with the
courts in some way. We are, however, cognizant of the
seriousness of the plaintiff’s allegations in this case,
insofar as the alleged distribution of the wrong ballots
could have deprived numerous electors of their right
to cast a vote for their state representative, and that
the margin was small enough that the alleged error
might have affected the outcome of the election. Given
the seriousness of those claims, and its exclusive juris-
diction under the elections clause, we ‘‘must presume
that the members of the General Assembly will carry
out their duties with scrupulous attention to the laws
under which they serve. [W]e must and should presume
that any officer of the state . . . will act lawfully, cor-
rectly, in good faith and in sincerity of purpose in the
execution of his [or her] duties.’’26 (Footnote omitted;
internal quotation marks omitted.) Kinsella v. Jaekle,
supra, 192 Conn. 729; see also General Statutes § 1-25
(prescribing identical oath to uphold Connecticut and
federal constitutions for judges and members of Gen-
eral Assembly). Accordingly, we conclude that exclu-
sive jurisdiction over the plaintiff’s claims in the present
case lies with our state House of Representatives.27
B
Whether General Statutes § 9-328 Confers
Jurisdiction in This Case
We next address the plaintiff’s contention that, even
if the elections clause deprives the court of inherent
jurisdiction to entertain the plaintiff’s complaint seek-
ing a new election, it nevertheless has jurisdiction pur-
suant to § 9-328, which governs election contests for
‘‘municipal office.’’ In particular, the plaintiff relies on
the broad wording of § 9-328, which extends to ‘‘any
municipal office,’’ and argues that it applies to the elec-
tion of the state representative for the 120th assembly
district because only the electors of the town may vote
in that election, thus rendering that seat a municipal
office as that term is defined by General Statutes § 9-372
(7).28 The plaintiff also posits that § 9-328 is applicable
because the parties have ‘‘consistently treated this elec-
tion as one for a ‘municipal office,’ ’’ given that the
‘‘candidates followed the statutory nomination proce-
dure applicable to ‘municipal offices’ ’’ because the
120th assembly district is limited to a single town.
In response, the defendants contend that § 9-328 does
not apply because the office of state representative for
the 120th assembly district is not a ‘‘municipal office.’’
They contend that the statutory scheme plainly and
unambiguously establishes that § 9-328 is inapplicable
because it pertains only to ‘‘municipal elections,’’ as
defined by General Statutes § 9-1 (h) and (i), which are
elections for the ‘‘public officials of such municipality,’’
with ‘‘municipality’’ defined as ‘‘any city, borough or
town within the state.’’ (Internal quotation marks omit-
ted.) To this end, the defendants rely on, inter alia,
Republican Party of Connecticut v. Merrill, 307 Conn.
470, 55 A.3d 251 (2012), and argue that the definition
of ‘‘municipal office’’ set forth in § 9-372 (7) is expressly
inapplicable in this case by its own terms. The defen-
dants contend that the plaintiff’s construction would
lead to a ‘‘mystifyingly absurd and likely unconstitu-
tional result,’’ namely, that ‘‘individuals in a single town
assembly district would be able to seek judicial review
of alleged election irregularities under § 9-328, while
candidates and electors in multitown assembly districts
would have no such remedy. Such differential treatment
of individuals based solely on where they happen to
live plainly is not what the legislature provided or
intended.’’29 We agree with the defendants and conclude
that an election for a house seat is not one for a ‘‘munici-
pal office’’ subject to challenge pursuant to § 9-328.
Whether the office of state representative for the
120th assembly district is a ‘‘municipal office’’ for pur-
poses of jurisdiction under § 9-328 ‘‘presents a question
of statutory construction over which we exercise ple-
nary review. . . . When construing a statute, [o]ur fun-
damental 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 mean-
ing 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 deter-
mine that meaning, General Statutes § 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
. . . . The test to determine ambiguity is whether the
statute, when read in context, is susceptible to more than
one reasonable interpretation. . . . Previous case law
interpreting the statute remains instructive, because
we do not write on a clean slate when this court pre-
viously has interpreted a statute . . . .’’ (Citation omit-
ted; internal quotation marks omitted.) Marchesi v.
Board of Selectmen, 328 Conn. 615, 627–28, 181 A.3d
531 (2018).
We begin with the text of § 9-328, which provides in
relevant part that ‘‘[a]ny elector or candidate claiming
to have been aggrieved by any ruling of any election
official in connection with an election for any munici-
pal office . . . may bring a complaint to any judge of
the Superior Court for relief therefrom.’’ (Emphasis
added.) The plaintiff relies on § 9-372 (7), which pro-
vides: ‘‘ ‘Municipal office’ means an elective office for
which only the electors of a single town, city, borough,
or political subdivision, as defined in subdivision (10)
of this section, may vote, including the office of justice
of the peace.’’30 Reading the statutory scheme as a
whole, we conclude that the plaintiff’s reliance on the
definition of ‘‘municipal office’’ in § 9-372 (7) is mis-
placed and that § 9-328 plainly and unambiguously does
not apply to state legislative races, even those for seats
located within the boundaries of a single municipality.
Turning first to the inapplicability of § 9-372 (7), we
observe that the legislature expressly limited the appli-
cability of that definition to cases that do not include
election contests. Section 9-372 expressly provides that
the definitions set forth in that statute apply to ‘‘chapter
[153], chapter 157 and sections 9-51 to 9-67, inclusive,
9-169e, 9-217, 9-236 and 9-361 . . . .’’ We have held that
this itemization in § 9-372 is exclusive. Specifically, in
construing the ballot ordering statute, General Statutes
§ 9-249a, we recently concluded that the ‘‘definitions in
§ 9-372 . . . do not, by their own terms, apply to the
ballot ordering statute. Indeed, § 9-249a is conspicu-
ously absent from the list of statutes to which the defini-
tions in § 9-372 apply. Unless there is evidence to the
contrary, statutory itemization indicates that the legisla-
ture intended the list to be exclusive.’’ (Footnote omit-
ted; internal quotation marks omitted.) Republican
Party of Connecticut v. Merrill, supra, 307 Conn.
492–93; see also id., 494 (‘‘[t]hus, in 2010, the Working
Families Party was a ‘minor party’ for the purposes of
[General Statutes] § 9-453t, which permitted it to cross
endorse a major party candidate, but not a ‘minor party’
under the § 9-372 definition, which does not govern the
section we are called on to interpret’’). Because § 9-328
is contained in chapter 149 of the General Statutes, and
therefore not in the chapters or sections listed in § 9-
372, the definition of ‘‘municipal office’’ contained in
§ 9-372 (7), by its own unambiguous terms, does not
apply to § 9-328.31 See, e.g., DeNunzio v. DeNunzio,
320 Conn. 178, 194, 128 A.3d 901 (2016) (‘‘[u]nder the
doctrine of expressio unius est exclusio alterius—the
expression of one thing is the exclusion of another—
we presume that when the legislature expresses items
as part of a group or series, an item that was not
included was deliberately excluded’’).
Rather, the applicable definition is set forth in Gen-
eral Statutes § 9-1, which is the broader definitional
provision applicable to the elections statutes contained
in title 9 of the General Statutes, which contains both
chapter 149 and § 9-372 of the General Statutes
‘‘[e]xcept as otherwise provided . . . .’’ Section 9-1 (h)
provides that ‘‘ ‘[m]unicipal election’ means the regu-
larly recurring election held in a municipality at which
the electors of the municipality choose public officials
of such municipality . . . .’’ (Emphasis added.) In
ordinary usage, a state representative is not a ‘‘public
[official] of a municipality,’’ such as a mayor, first select-
man, or council member, but is a public official of an
assembly district. Although § 9-328 does not use the
phrase ‘‘municipal election’’ but, instead, uses the
phrase ‘‘election for any municipal office,’’ it is reason-
able to conclude that the legislature intended that, for
purposes of that statute, a ‘‘municipal office’’ is an office
occupied by a public official of a municipality, rather
than a state legislative position voted in a ‘‘state elec-
tion,’’ which is defined as ‘‘the election held in the state
on the first Tuesday after the first Monday in November
in the even-numbered years in accordance with the
provisions of the Constitution of Connecticut . . . .’’
General Statutes § 9-1 (s).
Beyond the plain and unambiguous statutory text,
the plaintiff’s construction of § 9-328 would authorize
aggrieved electors and candidates for the office of state
representative to bring a complaint to the trial court
pursuant to § 9-328 if the assembly district was located
entirely within one town, but not if the assembly district
crosses town boundaries. The plaintiff has provided no
explanation as to why the legislature might have wanted
to authorize such different treatment of assembly dis-
tricts based on this arbitrary distinction, which would
also appear to run afoul of the axiom ‘‘that those who
promulgate statutes . . . do not intend to promulgate
statutes . . . that lead to absurd consequences or
bizarre results. . . . Accordingly, [w]e construe a stat-
ute in a manner that will not . . . lead to absurd
results.’’ (Citations omitted; internal quotation marks
omitted.) Raftopol v. Ramey, 299 Conn. 681, 703, 12 A.3d
783 (2011). Moreover, given the constitutional concerns
created by this distinction, from the perspective of both
the equal protection and elections clauses, we also rely
on the proposition that ‘‘statutes are to be read so as
to avoid, rather than to create, constitutional ques-
tions.’’ In re Valerie D., 223 Conn. 492, 534, 613 A.2d 748
(1992). Given that the legislature has enacted election
contest statutes unambiguously addressing every other
state and federal elected position,32 we conclude that
it similarly would have used unambiguous language to
address this point had it intended to allow legislative
election contests only in certain assembly districts.33
Accordingly, we conclude that the office of state repre-
sentative for the 120th assembly district is not a ‘‘munic-
ipal office’’ for purposes of § 9-328 and that, accordingly,
that statute does not confer jurisdiction over this case
on the courts.34
C
Whether State Courts Have Jurisdiction over
the Plaintiff’s Federal Constitutional Claims,
Regardless of the State Elections Clause
We next address the plaintiff’s claim that the trial
court had jurisdiction to entertain his complaint
because he brought a claim pursuant to 42 U.S.C. § 1983,
alleging due process and equal protection violations
under the federal constitution. See Bush v. Gore, 531
U.S. 98, 104–105, 121 S. Ct. 525, 148 L. Ed. 2d 388 (2000)
(‘‘[h]aving once granted the right to vote on equal terms,
the [s]tate may not, by later arbitrary and disparate
treatment, value one person’s vote over that of
another’’); Baker v. Carr, 369 U.S. 186, 208, 82 S. Ct.
691, 7 L. Ed. 2d 663 (1962) (‘‘[a] citizen’s right to a vote
free of arbitrary impairment by state action has been
judicially recognized as a right secured by the [c]onstitu-
tion’’). Relying on, inter alia, Sullins v. Rodriguez, 281
Conn. 128, 913 A.2d 415 (2007), and Fetterman v. Uni-
versity of Connecticut, 192 Conn. 539, 473 A.2d 1176
(1984), the plaintiff further contends that, under the
supremacy clause of the United States constitution,
‘‘state law defenses [such as lack of jurisdiction under
article third, § 7, of the state constitution] cannot be
asserted against federal constitutional claims . . . .’’
In response, the defendants rely on the decisions of the
United States Court of Appeals for the Second Circuit
in Shannon v. Jacobowitz, 394 F.3d 90 (2d Cir. 2005),
and Powell v. Power, 436 F.2d 84 (2d Cir. 1970), and
contend that the plaintiff has not made a colorable
claim of a federal constitutional violation because he
has alleged only errors in the conduct of the election,
rather than an intentional act by a government official
directed at impairing a citizen’s right to vote. Assuming
that the supremacy clause of the United States constitu-
tion would override the divestiture of jurisdiction by the
elections clause in the Connecticut constitution with
respect to federal constitutional claims arising from a
state legislative election, we conclude that the plaintiff
nevertheless has not sufficiently pleaded federal consti-
tutional claims.35
In considering claims of federal law, it is well settled
that, when the United States Supreme Court has not
spoken, we find decisions of the Second Circuit particu-
larly persuasive. See, e.g., Gleason v. Smolinski, 319
Conn. 394, 444 n.41, 125 A.3d 920 (2015); Schnabel v.
Tyler, 230 Conn. 735, 742–43, 646 A.2d 152 (1994). ‘‘In
deciding to adopt the analysis of the Second Circuit
. . . we recognize that the decisions of the federal cir-
cuit in which a state court is located are entitled to
great weight in the interpretation of a federal statute.
This is particularly true in 42 U.S.C. § 1983 cases, where
the federal statute confers concurrent jurisdiction on
the federal and state courts.’’ (Internal quotation marks
omitted.) Schnabel v. Tyler, supra, 743 n.4. This avoids
the ‘‘bizarre result’’ that would occur if we adopted one
standard, ‘‘when in another courthouse, a few blocks
away, the federal court, being bound by the Second
Circuit rule,’’ followed a different standard. (Internal
quotation marks omitted.) Id. ‘‘We do not believe that
when Congress enacted the concurrent jurisdiction pro-
vision of § 1983 that it intended to create such a dispa-
rate treatment of plaintiffs depending on their choice
of a federal or state forum.’’ (Internal quotation marks
omitted.) Id.
The Second Circuit has stated that the ‘‘right to vote
is regarded as a fundamental political right . . . preser-
vative of all rights. . . . As the citizen’s link to his laws
and government . . . the right to vote is at the heart
of our democracy. . . .
‘‘’Principles of federalism limit the power of federal
courts to intervene in state elections, however. . . .
The [c]onstitution leaves the conduct of state elections
to the states . . . and the Supreme Court has recog-
nized that the [s]tates have long been held to have broad
powers to determine the conditions under which the
right of suffrage may be exercised. . . . Because the
states traditionally have authority over their own elec-
tions and because the [c]onstitution contemplates that
authority, courts have long recognized that not every
state election dispute implicates federal constitutional
rights. . . . Only in extraordinary circumstances will
a challenge to a state [or local] election rise to the level
of a constitutional deprivation.’’ (Citations omitted;
internal quotation marks omitted.) Shannon v. Jaco-
bowitz, supra, 394 F.3d 93–94.
In Shannon, the Second Circuit emphasized that, in
Daniels v. Williams, 474 U.S. 327, 328, 106 S. Ct. 662,
88 L. Ed. 2d 662 (1986), the United States Supreme
Court ‘‘clearly articulated that a finding of intentional
conduct was a prerequisite for a due process claim.
. . . Although Daniels was not a voting case, this
[c]ourt’s own cases support the application of the Dan-
iels holding to the election context. In Powell v. Power,
[supra, 436 F.2d 85–86], six voters in a Congressional
primary sought a federal remedy for errors committed
by state election officials in permitting a number of
individuals to cast ballots who under state law were
not qualified to vote. The plaintiffs brought suit under
42 U.S.C. § 1983, invoking, inter alia, the [d]ue [p]rocess
[c]lause of the [f]ourteenth [a]mendment. The [c]ourt
found that ‘the due process clause and [article I, § 2,
offer] no guarantee against errors in the administration
of an election.’ ’’ Shannon v. Jacobowitz, supra, 394
F.3d 94. The Second Circuit observed that subsequent
case law had reaffirmed the ‘‘intentional conduct
requirement of Powell and Daniels,’’ and that, in voting
cases, ‘‘plaintiffs must prove an intentional act in order
to show a due process violation.’’ Id., 95–96.
Significantly, the court further emphasized that, in
‘‘general, garden variety election irregularities do not
violate the [d]ue [p]rocess [c]lause, even if they con-
trol the outcome of the vote or election. . . . Examples
of such garden variety irregularities as identified by
the federal courts include: malfunctioning of voting
machines . . . human error resulting in miscounting
of votes and delay in arrival of voting machines . . .
allegedly inadequate state response to illegal cross-over
voting . . . mechanical and human error in counting
votes . . . technical deficiencies in printing ballots
. . . mistakenly allowing non-party members to vote
in a congressional primary . . . and arbitrary rejection
of ten ballots . . . .’’36 (Citations omitted; internal quo-
tation marks omitted.) Id., 96. Thus, the court concluded
in Shannon that even an ‘‘ ‘outcome determinative’ ’’
malfunction of a voting machine in a local election was
not a due process violation for purposes of liability
under 42 U.S.C. § 1983; id., 94; because ‘‘[a]t no point
have [the plaintiffs] alleged that local officials acted
intentionally or in a discriminatory manner with regard
to the vote miscount. Both sides concede that the
recorded results were likely due to an unforeseen mal-
function with [a particular] voting machine . . . . A
voting machine malfunction is the paradigmatic exam-
ple of a ‘garden variety’ election dispute.’’ Id., 96. It
described the voting machine malfunction as ‘‘dif-
fer[ing] significantly from purposeful state conduct
directed at disenfranchising a class or group of citi-
zens.’’37 Id.; see also id., 97 (declining to ‘‘invite federal
intervention into every negligent disruption of a local
election’’).
It is well settled in the Second Circuit that establish-
ing an equal protection violation requires similar proof
of intentional discrimination. See Powell v. Power,
supra, 436 F.2d 88 (‘‘[u]neven or erroneous application
of an otherwise valid statute constitutes a denial of
equal protection only if it represents intentional or pur-
poseful discrimination’’ [internal quotation marks omit-
ted]); accord Rivera-Powell v. New York City Board of
Elections, 470 F.3d 458, 469–70 (2d Cir. 2006) (extending
Shannon to first amendment violations premised on
‘‘allegedly unauthorized application of an admittedly
valid restriction’’ because ‘‘a contrary holding would
permit any plaintiff to obtain federal court review of
even the most mundane election dispute merely by add-
ing a [f]irst [a]mendment claim to his or her due process
claim’’ [emphasis in original]). Indeed, the Second Cir-
cuit subsequently held that ‘‘ ‘fundamental unfairness’
alone, in the absence of intentional state conduct,’’ is
not sufficient to establish a constitutional violation.
Hoblock v. Albany County Board of Elections, 422 F.3d
77, 97–98 (2d Cir. 2005). As the court stated in Powell,
‘‘we cannot believe that the framers of our [c]onstitution
were so hypersensitive to ordinary human frailties as
to lay down an unrealistic requirement that elections
be free of any error.’’ Powell v. Power, supra, 88.
In the operative complaint in the present case does
not allege any intentional misconduct on the part of
the officials charged with conducting the election for
the 120th assembly district. Rather, in the allegations
incorporated into the plaintiff’s constitutional claims,
he pleads that, ‘‘[d]uring the election on November 6,
2018, an irregularity developed during the day at the
Bunnell High School polling location,’’ namely, that,
‘‘[a]round midday, a packet of ballots for the 122nd
assembly district was mistakenly used in the 120th
assembly district voting line.’’ (Emphasis added.) He
further states that, ‘‘[a]s a result of this mistake, voters
who were eligible to vote for state representative for
the 120th assembly district were unable to do so, instead
potentially casting votes in the wrong district.’’ (Empha-
sis added.) The plaintiff then alleges that the moderator
took corrective action and ‘‘noted the incident in his
log as required’’ after ‘‘a voter detected the mistake.’’
(Emphasis added.) Nowhere does the plaintiff allege
any intentional acts on the part of the election officials,
describing the ballot mix-up only as ‘‘irregularities.’’
Thus, the plaintiff has pleaded only a ‘‘garden variety
election dispute’’ akin to the malfunctioning voting
machine in Shannon, rather than the intentional con-
duct sufficient to state a constitutional claim under
Second Circuit case law.38 See Hill v. Gunn, 367 F.
Supp. 2d 532, 534–35 (S.D.N.Y. 2005) (concluding that
plaintiff did not state violation of right to vote under
federal due process clause when she pleaded election
workers ‘‘knew or should have known that because
plaintiff’s polling machine malfunctioned, she was
unable to cast her vote and they therefore should have
given her an additional opportunity to recast her vote,’’
and that their refusal to permit her to recast vote was
not act sufficiently intended to deprive her of constitu-
tional right). We, therefore, conclude that the plaintiff
has not made a colorable claim of a constitutional viola-
tion because he has alleged only that local elections
officials made an unintentional mistake, rather than
adopted an intentional practice or policy.39 Accordingly,
even if our state courts would have jurisdiction over
such a federal constitutional claim, the plaintiff has not
sufficiently pleaded such a claim in the present case,
and we uphold its dismissal by the trial court. See foot-
note 35 of this opinion.
II
THE DEFENDANTS’ APPEALS FROM THE
GRANT OF INJUNCTIVE RELIEF
We next turn to the defendants’ appeals in which
they claim that the trial court improperly granted the
plaintiff’s motion for a temporary injunction prohibiting
the state officials from declaring a winner pursuant to
§ 9-319. The plaintiff disagrees, and also contends that
the defendants’ appeals have been rendered moot
because of the passage of the statutory deadline in § 9-
319, which requires that the ‘‘votes from the election
be canvassed and a winner declared ‘during the month
in which they are cast,’ ’’ namely, November, 2018.
A
Mootness
Because it implicates this court’s appellate subject
matter jurisdiction, we begin with the plaintiff’s moot-
ness claim. The plaintiff contends that the defendants’
appeals challenging the trial court’s order of injunctive
relief have been rendered moot because of the passage
of the statutory deadline in § 9-319. The plaintiff posits
that the ‘‘only way that there can be compliance with
. . . § 9-319 is with a new, complete, and constitutional
election, where the votes are canvassed and the winner
declared in the same month in which they are cast,
after all eligible voters have had the opportunity to
participate.’’ The plaintiff contends that the defendants
‘‘cannot get practical relief through their appeals,’’ in
which they seek reversal of the injunction, because
even if this court reverses that order, ‘‘§ 9-319 remains
unchallenged and in effect and, therefore, votes from
the constitutionally infirm November 6, 2018 election
now cannot be canvassed.’’ The plaintiff relies on Office
of the Governor v. Select Committee of Inquiry, 271
Conn. 540, 858 A.2d 709 (2004), which had deemed
significant the fact that an appeal was heard and
decided before the impeachment committee’s deadline,
and argues that the defendants’ appeals are moot
because of the passage of the November 30 deadline.
In response, the state defendants contend that practical
relief remains available because, independent of § 9-
319, article third, § 7, of the Connecticut constitution
gives them a mandatory duty to canvass and declare.
The state defendants also contend that the plaintiff does
not cite any legal authority for the proposition that
noncompliance with the statutory deadline actually pre-
cludes them from performing their election duties. We
agree with the defendants, and conclude that their
appeals are not moot.
‘‘It is well established that [m]ootness implicates
[this] court’s subject matter jurisdiction and is thus a
threshold matter for us to resolve. . . . It is a well-
settled general rule that the existence of an actual con-
tion; it is not the province of appellate courts to decide
moot questions, disconnected from the granting of
actual relief or from the determination of which no
practical relief can follow. . . . An actual controversy
must exist not only at the time the appeal is taken, but
also throughout the pendency of the appeal. . . .
When, during the pendency of an appeal, events have
occurred that preclude an appellate court from granting
any practical relief through its disposition of the merits,
a case has become moot.’’ (Internal quotation marks
omitted.) In re Emma F., 315 Conn. 414, 423–24, 107
A.3d 947 (2015); see also, e.g., Statewide Grievance
Committee v. Burton, 282 Conn. 1, 13, 917 A.2d 966
(2007) (‘‘the central question in a mootness problem is
whether a change in the circumstances that prevailed
at the beginning of the litigation has forestalled the
prospect for meaningful, practical, or effective relief’’).
Appeals challenging temporary injunctions may be
rendered moot by, inter alia, the cessation of the chal-
lenged activity or the expiration of the injunction by
its own terms. See, e.g., Connecticut State Employees
Assn. v. American Federation of State, County &
Municipal Employees, AFL-CIO, 188 Conn. 196, 199–
200, 448 A.2d 1341 (1982). Whether an appeal from an
injunction is, however, rendered moot by the passage
of a statutory deadline for the enjoined action is a ques-
tion of first impression for this court.40 On this point, we
find instructive the decision of the District of Columbia
Circuit in Jacksonville Port Authority v. Adams, 556
F.2d 52 (D.C. Cir. 1977). In Jacksonville Port Authority,
the court concluded that an appeal from a denial of a
temporary restraining order was not moot because a
port authority could vindicate its right to a grant from
the Federal Aviation Administration, despite the pas-
sage during the pendency of the litigation of a statutory
deadline for the initiation of such grants, because a
‘‘congressional deadline on an agency’s ability to take
action on its own motion does not preclude an agency’s
authority to take later action on direction of a court
exercising judicial review.’’ Id., 56–57. The court empha-
sized that ‘‘equitable considerations prevent an agency
from raising a statutory prohibition on it—in reality,
[as] a command to meet a deadline—as a defense to a
suit brought prior to that deadline for money withheld
by the agency’s arrogation of unauthorized discretion.’’
Id., 55; see id. (observing that statutory deadline was
intended ‘‘to avoid procrastination and the dangers of
an agency discretion to dip into old unused authoriza-
tions’’). The court emphasized that the port authority
had ‘‘made timely application and brought suit within
the time the agency is authorized to act, seeking judicial
determination and vindication of its entitlement to the
funds.’’ Id., 56. The court determined that, ‘‘in the inter-
est of justice, the court may proceed as if action that
should have been taken in the courthouse was timely
taken,’’ and that ‘‘it is a well-established prerogative of
the [c]ourt to treat as done that which should have been
done.’’ (Internal quotation marks omitted.) Id.; see also
Recording Industry Assn. v. Copyright Royalty Tribu-
nal, 662 F.2d 1, 18 n.40 (D.C. Cir. 1981) (‘‘[t]he statutory
provision requiring the [defendant] to render its final
decision within one year from initiation of proceedings
. . . does not preclude further proceedings on direc-
tion of a court exercising judicial review’’ [citation omit-
ted]); accord Sierra Pacific Industries v. Lyng, 866
F.2d 1099, 1111–12 (9th Cir. 1989) (when statutory dead-
line is not ‘‘jurisdictional,’’ court may order equitable
relief to compensate for agency’s failure to act). This
federal case law indicates, then, that the passage of the
statutory deadline for an action that had been enjoined
does not render moot an appeal from that injunction.
The District of Columbia Circuit’s decision in Jack-
sonville Port Authority is consistent with Connecticut
courts’ authority—in the absence of statutory preclu-
sion—to render judgments nunc pro tunc, or ‘‘now for
then,’’ when ‘‘necessary in furtherance of justice and
in order to save a party from unjust prejudice . . .
caused by the act of the court or the course of judicial
procedure. In other words, the practice is intended
merely to make sure that one shall not suffer for an
event which he could not avoid.’’ (Internal quotation
marks omitted.) Gary Excavating Co. v. North Haven,
163 Conn. 428, 430, 311 A.2d 90 (1972). Thus, it is signifi-
cant that there is nothing in § 9-319 that suggests that
the appeal from the injunction was rendered moot by
the passage of the November 30 deadline. That statute
provides: ‘‘The votes for state senators, state represen-
tatives and judges of probate, as returned by the moder-
ators, shall be canvassed, during the month in which
they are cast, by the Treasurer, Secretary of the State
and Comptroller, and they shall declare, except in case
of a tie vote, who is elected senator in each senatorial
district, representative in each assembly district and
judge of probate in each probate district. The Secretary
of the State shall, within three days after such declara-
tion, give notice by mail to each person chosen state
senator, state representative or judge of probate of his
election.’’ (Emphasis added.) General Statutes § 9-319.
First, the statutory language setting the deadline of ‘‘dur-
ing the month in which they are cast,’’ modifies only
the canvassing requirement, rather than the timing of
the declaration. Second, there are no ‘‘negative words’’
in the statute invalidating or nullifying a canvass or
declaration made after the passage of one month.41 Cf.
Butts v. Bysiewicz, 298 Conn. 665, 678–80, 5 A.3d 932
(2010) (noting that General Statutes § 9-388, which
requires that certificate of party’s endorsement be
received by prescribed deadline, has language providing
that ‘‘ ‘certificate shall be invalid,’ ’’ or ‘‘lack legal
effect,’’ and also states that absence of certificate means
that political party ‘‘shall be deemed to have made no
endorsement of any candidate for such office’’). Accord-
ingly, we conclude that the defendants’ appeals from
the grant of the temporary injunction are not moot.
B
Merits
As to the defendants’ challenge to the temporary
injunction, they first contend that, because the trial
court lacked jurisdiction over this case, it similarly
lacked jurisdiction to consider the plaintiffs’ motion for
a temporary injunction, and should have dismissed the
motion on that ground. The state defendants further
emphasize that the trial court improperly relied on
Kinsella v. Jaekle, supra, 192 Conn. 704, in support of
its conclusion that it had jurisdiction over the plaintiff’s
motion for a temporary injunction. In response, the
plaintiff reiterates his jurisdictional arguments, pre-
viously addressed in part I of this opinion, to support
the trial court’s exercise of its jurisdiction to order a
temporary injunction. We agree with the defendants,
and conclude that the trial court lacked jurisdiction to
enjoin the state defendants from declaring a winner
pursuant to § 9-319.42
‘‘A prayer for injunctive relief is addressed to the
sound discretion of the court and the court’s ruling
can be reviewed only for the purpose of determining
whether the decision was based on an erroneous state-
ment of law or an abuse of discretion. . . . Therefore,
unless the trial court has abused its discretion . . .
the trial court’s decision must stand. . . . How a court
balances the equities is discretionary but if, in balancing
those equities, a trial court draws conclusions of law,
our review is plenary.’’ (Citation omitted; internal quota-
tion marks omitted.) Commissioner of Correction v.
Coleman, 303 Conn. 800, 810, 38 A.3d 84 (2012), cert.
denied, 568 U.S. 1235, 133 S. Ct. 1593, 185 L. Ed. 2d 589
(2013); see also, e.g., Aqleh v. Cadlerock Joint Venture
II, L.P., 299 Conn. 84, 97–98, 10 A.3d 498 (2010) (stan-
dard for granting temporary injunction).
If the trial court lacks subject matter jurisdiction over
a case, it similarly lacks jurisdiction to render even a
temporary injunction. See Olcott v. Pendleton, 128
Conn. 292, 295–96, 22 A.2d 633 (1941) (emphasizing
difference between jurisdiction and merits with respect
to temporary injunctions); cf. Park City Hospital v.
Commission on Hospitals & Health Care, 210 Conn.
697, 701–702, 556 A.2d 602 (1989) (given that trial court
had equitable jurisdiction pursuant to General Statutes
§ 52-1, it did not need to consider aggrievement for pur-
poses of administrative appeal before granting applica-
tion for stay and restraining order); Holley v. McDonald,
154 Conn. 228, 233, 224 A.2d 727 (1966) (distinguishing
‘‘an erroneous exercise of the court’s equitable jurisdic-
tion’’ from ‘‘an action beyond that equitable jurisdic-
tion’’). Given our conclusion that the trial court lacked
jurisdiction over the plaintiff’s claims in the present case;
see part I of this opinion; we conclude that it similarly
lacked jurisdiction to enjoin the state defendants from
canvassing the votes and declaring a winner, even tem-
porarily. Accordingly, the temporary injunction must be
vacated.43 See footnote 7 of this opinion.
The judgment is reversed insofar as it denied Young’s
motion to dismiss in part and granted the plaintiff’s
application for a temporary injunction, and the case is
remanded with direction to grant Young’s motion to
dismiss in its entirety; the judgment is affirmed in all
other respects.
In this opinion the other justices concurred.
* January 30, 2019, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
The amended complaint also named the following local election officials
for the town as defendants: Rick Marcone, the town’s Democratic registrar
of voters; Lou Decilio, the town’s Republican registrar of voters; Beth Boda,
the head moderator for the election; John Krekoska, the head moderator
of the recount; and Susan M. Pawluk, the town’s clerk. Although these local
election officials have appeared through counsel both before the trial court
and in these appeals, they have not otherwise participated in this case. For
the sake of simplicity, we refer to Young, Merrill, Nappier, and Lembo,
collectively, as the defendants, and to Young, individually, by name.
2
Article third, § 7, of the Connecticut constitution provides in relevant
part: ‘‘The treasurer, secretary of the state, and comptroller shall canvass
publicly the votes for senators and representatives. The person . . . in each
assembly district having the greatest number of votes for representative
shall be declared to be duly elected for such district. . . . The return of
votes, and the result of the canvass, shall be submitted to the house of
representatives and to the senate on the first day of the session of the
general assembly. Each house shall be the final judge of the election returns
and qualifications of its own members.’’
3
Although an order granting a temporary injunction is ordinarily not an
immediately appealable final judgment; see, e.g., Bozrah v. Chmurynski,
303 Conn. 676, 681–82, 36 A.3d 210 (2012); we have appellate jurisdiction
because § 52-265a ‘‘permits this court to consider an interlocutory appeal
from the trial court.’’ State v. Komisarjevsky, 302 Conn. 162, 165, 25 A.3d
613 (2011); see also footnote 7 of this opinion.
4
General Statutes § 9-328 provides in relevant part: ‘‘Any elector or candi-
date claiming to have been aggrieved by any ruling of any election official
in connection with an election for any municipal office or a primary for
justice of the peace, or any elector or candidate claiming that there has
been a mistake in the count of votes cast for any such office at such election
or primary, or any candidate in such an election or primary claiming that
he is aggrieved by a violation of any provision of sections 9-355, 9-357 to
9-361, inclusive, 9-364, 9-364a or 9-365 in the casting of absentee ballots at
such election or primary, may bring a complaint to any judge of the Superior
Court for relief therefrom. . . . Such judge shall, on the day fixed for such
hearing and without unnecessary delay, proceed to hear the parties. If
sufficient reason is shown, he may order any voting tabulators to be unlocked
or any ballot boxes to be opened and a recount of the votes cast, including
absentee ballots, to be made. Such judge shall thereupon, if he finds any
error in the rulings of the election official or any mistake in the count of
the votes, certify the result of his finding or decision to the Secretary of
the State before the tenth day succeeding the conclusion of the hearing.
Such judge may order a new election or primary or a change in the existing
election schedule. Such certificate of such judge of his finding or decision
shall be final and conclusive upon all questions relating to errors in the
ruling of such election officials, to the correctness of such count, and, for
the purposes of this section only, such claimed violations, and shall operate
to correct the returns of the moderators or presiding officers, so as to
conform to such finding or decision, except that this section shall not affect
the right of appeal to the Supreme Court and it shall not prevent such judge
from reserving such questions of law for the advice of the Supreme Court
as provided in section 9-325. Such judge may, if necessary, issue his writ
of mandamus, requiring the adverse party and those under him to deliver
to the complainant the appurtenances of such office, and shall cause his
finding and decree to be entered on the records of the Superior Court in
the proper judicial district.’’
5
The supremacy clause of the United States constitution, article VI, cl.
2, provides in relevant part: ‘‘This Constitution, and the Laws of the United
States which shall be made in Pursuance thereof . . . shall be the supreme
Law of the Land; and the Judges in every State shall be bound thereby, any
Thing in the Constitution or Laws of any State to the Contrary notwith-
standing.’’
6
The complaint alleges that the voter checklist at Bunnell High School
for the 120th assembly district shows 1575 names crossed off the official
checklist, but only 1499 ballots processed, which would indicate 76 fewer
ballots than voters. In contrast, the checklist at that location for the 122nd
assembly district allegedly showed 952 names crossed off the official check-
list, but 1031 ballots processed, which would indicate 79 more ballots
than voters.
We note that the checklist summary for the 122nd assembly district, which
was supplied as an exhibit in the plaintiff’s appendix, indicates that the
names of 954 voters had been crossed off. This would result in an actual
difference of 77 more ballots than voters. This minor typographical discrep-
ancy does not, however, affect the substantive analysis within this opinion.
7
Although the plaintiff styled his application as one for ‘‘an emergency
temporary restraining order,’’ we, like the parties and the trial court, refer
in this opinion to that application as one for a ‘‘temporary injunction’’
because it was granted after notice and a hearing. See, e.g., Canterbury v.
Kukevitch, Superior Court, judicial district of Windham, Docket No. CV-03-
0070337-S (June 17, 2003) (35 Conn. L. Rptr. 14, 16) (‘‘[u]nder Connecticut
law, the phrase temporary injunction refers both to what the somewhat
more highly articulated federal courts would call a temporary restraining
order [i.e., one issued without notice to the adverse party] and to what they
would call a preliminary injunction [i.e., one issued after notice and hearing]’’
[internal quotation marks omitted]).
8
The plaintiff filed the amended complaint while a motion to dismiss,
filed by Young with the support of the state defendants, was pending with
respect to the original complaint.
9
On December 13, 2018, the trial court issued a written memorandum of
decision further articulating its oral decision on the parties’ motions.
10
General Statutes § 9-319 provides: ‘‘The votes for state senators, state
representatives and judges of probate, as returned by the moderators, shall
be canvassed, during the month in which they are cast, by the Treasurer,
Secretary of the State and Comptroller, and they shall declare, except in
case of a tie vote, who is elected senator in each senatorial district, represen-
tative in each assembly district and judge of probate in each probate district.
The Secretary of the State shall, within three days after such declaration,
give notice by mail to each person chosen state senator, state representative
or judge of probate of his election.’’
11
We reiterate our gratitude to counsel, first voiced by Justice McDonald
at oral argument before this court, for their thorough and professional
briefing and argument of this case on an expedited basis.
We also note that, in the afternoon of December 20, 2018, the day before
oral argument in these appeals, the ACLU Foundation of Connecticut filed
an application for permission to file an amicus curiae brief. Although we
ordinarily are very receptive to amicus briefs, we denied this application
because its eve of argument timing would have rendered the filing of such
a brief in the present appeals both potentially prejudicial to the parties and
comparatively less useful to the court.
12
The use of the word ‘‘returns’’ to modify ‘‘election’’ renders that phrase
suggestive of the vote tally, rather than the electoral process that produces
the votes. See Henry v. Henderson, 697 So. 2d 447, 451 (Miss. 1997) (‘‘The
[c]onstitution gives authority to each house to judge the return and election
of its own members. Return and election includes the proper number of
votes cast for each candidate.’’), overruled on other grounds by Dillon v.
Myers, 227 So. 3d 923 (Miss. 2017); accord State ex rel. Morris v. Bulkeley,
supra, 61 Conn. 363 (‘‘When a command has been issued from some superior
authority to an officer, the ‘return’ is the official statement by the officer
of what he has done in obedience to the command or why he has done
nothing. Whatever thing the superior authority may require the officer to
do, of the doing of that thing it may require him to make return. The return
made by the presiding officer of an electors’ meeting is his official statement
of what was done at that meeting.’’).
13
Indeed, it is significant that, ‘‘[p]rior to the adoption of the constitution
of this state in 1818, all governmental power, including the judicial power,
was vested in the General Assembly.’’ State v. Clemente, 166 Conn. 501, 512,
353 A.2d 723 (1974); see also W. Horton, supra, pp. 99–100 (discussing
Norwalk Street Railway Co.’s Appeal, 69 Conn. 576, 37 A. 1080 [1897], as
standing for proposition that constitution is grant of power to three branches,
rather than reservation of remaining powers to General Assembly as held
in Starr v. Pease, 8 Conn. 541 [1831]).
14
The constitution of the United States, article one, § 5, provides in relevant
part: ‘‘Each House shall be the Judge of the Elections, Returns and Qualifica-
tions of its own Members . . . .’’
15
The constitution of the United States, article one, § 4, provides: ‘‘The
Times, Places and Manner of holding Elections for Senators and Representa-
tives, shall be prescribed in each State by the Legislature thereof; but the
Congress may at any time by Law make or alter such Regulations, except
as to the Places of chusing Senators.’’
16
See Baker v. Carr, 369 U.S. 186, 217, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962).
17
We note that the plaintiff attempts to distinguish Morgan v. United
States, supra, 801 F.2d 445, on the ground that the congressional determina-
tion preceded the civil action in that case, while the opposite timing is true
in this case, as our state House of Representatives has not yet acted. In our
view, this timing is a distinction without a difference, because the potential
for judicial encroachment on the legislative prerogative is the same, given the
troubling specter of the legislature having to reject a judicial determination
of the same issue. Indeed, Morgan itself suggested that the timing was
irrelevant, when the court concluded that its interpretation of the federal
elections clause was ‘‘plainly endorse[d]’’ by the Supreme Court’s decision
in Roudebush v. Hartke, supra, 405 U.S. 15, because the Supreme Court, in
considering whether the Senate’s decision to seat a candidate had rendered
the case moot, stated that it had jurisdiction to consider the broader legal
question of whether a state’s recount scheme violated the elections clause,
rather than to decide the specific underlying dispute, as ‘‘ ‘which candidate
is entitled to be seated in the Senate is, to be sure, a nonjusticiable political
question—a question that would not have been the business of this [c]ourt
even before the Senate acted.’ ’’ (Emphasis altered.) Morgan v. United States,
supra, 448–49, quoting Roudebush v. Hartke, supra, 19.
18
A comprehensive collection of generally early cases on this point is set
forth in an annotation published within the American Law Reports. See
generally annot., 107 A.L.R. 205 (1937 and Cum. Supp. 2011).
19
We note that the Kentucky Supreme Court’s decision in Stephenson v.
Woodward, supra, 182 S.W.3d 162, allowing the court to continue to consider
the qualifications of a legislator, even after the election, has been heavily
criticized as ‘‘extraordinary reasoning, which defies longstanding tradition
and precedent, [and as] inconsistent with legislative independence, which
the [Kentucky Supreme] Court itself has recognized as a critical facet of
separation of powers.’’ (Footnotes omitted.) P. Salamanca & J. Keller, ‘‘The
Legislative Privilege to Judge the Qualifications, Elections, and Returns of
Members,’’ 95 Ky. L.J. 241, 244 (2007); see also id., 366 (concluding that
court’s ‘‘most salient conclusion . . . simply cannot withstand scrutiny’’
because legislature ‘‘lacked power to delegate the [state] senate’s authority
under the constitution irrevocably to the courts’’).
20
We acknowledge that, in In re Application of Mylchreest, supra, 6 Conn.
Supp. 436, the Superior Court, in rejecting the applicant’s request for a court-
ordered recount of ballots in a disputed state Senate race, observed that,
under the elections clause of the Connecticut constitution, ‘‘it is justifiable
for the [l]egislature to make provision for a judge of the Superior Court to
pass upon the question as to who has been elected governor or to some
other state office but not proper for any court to be given power to pass upon
the question as to who has been elected state senator or representative.’’
(Emphasis added.) Given the fact that no statute authorizes court action in
this case; see also part I B of this opinion; we need not consider whether
the Superior Court properly suggested in In re Application of Mylchreest
that a statute authorizing a court-ordered recount in a legislative race would
be unconstitutional under the elections clause. See id. (‘‘[t]he difference
between the constitutional powers of the General Assembly with reference
to the election of state officers and its power with reference to the election
of its own members is that as to the former the [Connecticut] [c]onstitution
nowhere provides that the General Assembly shall be the ‘final’ judges’’).
21
We also disagree with the plaintiff’s reliance on State ex rel. Wahl v.
Richards, supra, 44 Del. 566, Akizaki v. Fong, 51 Haw. 354, 461 P.2d 221
(1969), and McGann v. Board of Elections, supra, 85 R.I. 223, in support of
his position that Connecticut courts have jurisdiction to afford him relief
because these cases are all factually and legally distinguishable from the
present case. In State ex rel. Wahl v. Richards, supra, 573, the Delaware
Supreme Court held that it had jurisdiction to issue a writ of mandamus to
the Delaware Superior Court, sitting as the Board of Canvass, to recanvass
the vote in an election for the office of state representative in accordance
with a state statute governing vote counting procedures. In the present case,
the plaintiff does not claim that the defendants violated any clear state
statute governing election procedures. In addition, the state supreme court
in Richards had authority under a state constitutional provision to issue
writs of mandamus to the Superior Court. See id., 572.
In Akizaki v. Fong, supra, 51 Haw. 356–57, the court was required to
resolve a conflict between a state constitutional provision analogous to
our elections clause and another constitutional provision providing that
‘‘[c]ontested elections shall be determined by a court of competent jurisdic-
tion . . . .’’ The court resolved this conflict by holding that the state house
of representatives’ ‘‘function in judging the elections of its members extends
only to ascertaining whether the [state] [c]onstitution has been complied
with; that is, whether the parties have properly invoked the jurisdiction of
a competent court to judge the contest . . . .’’ Id., 358. The Hawaii Supreme
Court’s decision in Akizaki is of no persuasive value because the Connecticut
constitution contains no provision specifically authorizing courts of this state
to determine election contests. See Wheatley v. Secretary of Commonwealth,
supra, 439 Mass. 855 n.10.
In McGann v. Board of Elections, supra, 85 R.I. 237, the issue before the
court was the constitutionality of a state statute authorizing civilian absentee
and shut-in electors to vote before election day. The court concluded that,
notwithstanding a state constitutional provision authorizing each house to
be the judge of the elections of its own members, the court had exclusive
jurisdiction to decide ‘‘questions of constitutional and fundamental law
. . . .’’ Id., 230. In the present case, however, the plaintiff is not challenging
the constitutionality of any state statute, and merely mounts a narrower
challenge to the administration of a single legislative election.
22
After Bakken, North Dakota subsequently amended its state constitution
to make even clearer the role of the judiciary in deciding elections contests,
including those in legislative elections. See Timm v. Schoenwald, 400 N.W.2d
260, 264 (N.D. 1987) (discussing applicability of post-Bakken state constitu-
tional amendment specifically providing that ‘‘ ‘[e]ach house is the judge of
the qualifications of its members, but election contests are subject to judicial
review as provided by law’ ’’ [emphasis in original]). This amendment to
North Dakota’s constitution, and a similar provision in Hawaii; see Akizaki
v. Fong, 51 Haw. 354, 356–57, 461 P.2d 221 (1969); have been described
as inconsistent with concepts of legislative independence and legislative
privilege, particularly given that the power to remove is the power of control.
See P. Salamanca & J. Keller, ‘‘The Legislative Privilege to Judge the Qualifi-
cations, Elections, and Returns of Members,’’ 95 Ky. L.J. 241, 255 (2007).
23
With respect to the separation of powers, we note that the District of
Columbia Circuit emphasized in Morgan that the exclusivity of legislative
jurisdiction ‘‘makes eminent practical sense. The pressing legislative
demands of contemporary government have if anything increased the need
for quick, decisive resolution of election controversies. Adding a layer of
judicial review, which would undoubtedly be resorted to on a regular basis,
would frustrate this end. What is involved, it should be borne in mind, is
not judicial resolution of a narrow issue of law, but review of an election
recount, with all the fact-finding that that entails. If it be said that the
relevant [h]ouse is not the appropriate body to make the determination
because of the possibility of improper political motivation, the response is
that ‘[a]ll power may be abused if placed in unworthy hands. But it would
be difficult . . . to point out any other hands in which this power would
be more safe, and at the same time equally effectual.’ Luther v. Borden, 48
U.S. (7 How.) 1, 44, 12 L. Ed. 581 (1849).’’ Morgan v. United States, supra,
801 F.2d 450; see also P. Salamanca & J. Keller, ‘‘The Legislative Privilege
to Judge the Qualifications, Elections, and Returns of Members,’’ 95 Ky. L.J.
241, 361 (2007) (‘‘[a]llowing the courts to sit in judgment on the qualifications,
elections, and returns of members, particularly where the [c]onstitution
explicitly vests this authority in the legislature, undermines not only text
but also legislative independence and separation of powers’’).
24
We note that we do not understand the plaintiff to argue that the courts
and the legislature share jurisdiction over legislative election contests chal-
lenging the administration of the election. Such complementary jurisdiction,
which would render the ultimate judicial determination advisory, has been
criticized as problematic given the constitutional complications attendant
to the issuance of advisory opinions, along with an even greater potential
for interbranch entanglement. See Scheibel v. Pavlak, supra, 282 N.W.2d
849–50; McIntyre v. Wick, supra, 558 N.W.2d 367–68 (Sabers, J., dissenting).
One commentator has described complementary legislative and judicial
jurisdiction as a ‘‘fundamentally flawed’’ concept insofar as ‘‘[t]his sort of
judicial pressure or interference, however innocently couched by the court,
is exceedingly difficult to justify in light of the constitution’s exclusive
commitment of the power to judge state legislative elections to the [l]egisla-
tive [d]epartment.’’ R. Parsons, Jr., ‘‘Pierre Pressure: Legislative Elections,
the State Constitution, and the Supreme Court of South Dakota,’’ 50 S.D.
L. Rev. 218, 234–35 (2005).
25
We note that General Statutes § 9-215, which governs the filling of
legislative vacancies, by its own terms, applies only in the event of a mem-
ber’s death or resignation. See General Statutes § 9-215 (a) (‘‘When any
member or member-elect of the General Assembly resigns, the member or
member-elect shall resign by notifying the Secretary of the State of the
member’s or member-elect’s decision, and if any member or member-elect
of the General Assembly dies, the town clerk from the town in which the
member or member-elect resides shall notify the Secretary of the State of
such death’’ [emphasis added]).
26
The plaintiff expresses his concern about the impact of partisanship on
the legislature’s ability to resolve election disputes fairly. With respect to
partisanship, we agree with the District of Columbia Circuit’s dismissal of
concerns about ‘‘party-line votes’’ in election cases by emphasizing that the
point that ‘‘institutional incentives make it safer to lodge the function [in
the legislature] than anywhere else still stands. The major evil of interference
by other branches of government is entirely avoided, while a substantial
degree of responsibility is still provided by regular elections, the interim
demands of public opinion, and the desire of each [h]ouse to preserve its
standing in relation to the other institutions of government.’’ Morgan v.
United States, supra, 801 F.2d 450.
27
We emphasize that, although the elections clause requires us to stay
our hand, we do not foreclose a limited role for the courts in cases arising
from legislative election disputes. It is ‘‘conceivable, for example, that in
investigating such a dispute a [legislative body] might go beyond its constitu-
tional power to compel witnesses. In that event, a clear showing of such
arbitrary and improvident use of the power as will constitute a denial of
due process of law would justify limited judicial interference. . . . Such a
due process violation, however, must rest on violation of some individual
interest beyond the failure to seat an individual or to recognize that person
as the winner of an election. That substantive determination, which is the
issue in the present case, resides entirely with the House.’’ (Citation omitted;
internal quotation marks omitted.) Morgan v. United States, supra, 802 F.2d
451; see also Office of the Governor v. Select Committee of Inquiry, 271
Conn. 540, 575, 858 A.2d 709 (2004) (‘‘It is true that underlying this matter
was a discretionary decision by the defendant to issue the subpoena to
the governor. Our consideration of whether that decision comports with
constitutional principles, however, does not require us to evaluate the wis-
dom of that decision, but only whether that decision exceeded constitutional
limitations.’’); Kinsella v. Jaekle, supra, 192 Conn. 726 (‘‘[b]ecause the com-
mittee is acting within its jurisdiction, the Superior Court may exercise
jurisdiction in this impeachment controversy only if the plaintiff alleges that
egregious and otherwise irreparable violations of constitutional guarantees
are being or have been committed’’).
28
General Statutes § 9-372 (7) provides: ‘‘ ‘Municipal office’ means an
elective office for which only the electors of a single town, city, borough,
or political subdivision, as defined in subdivision (10) of this section, may
vote, including the office of justice of the peace . . . .’’
29
Specifically, Young argues that the plaintiff’s construction would mean
that ‘‘the election of 73 of the 151 [state representatives] would be subject
to judicial review under § 9-328, and 78 would not. . . . None of the 36
state senators’ elections would be subject to § 9-328. There is no articulable
reason . . . why the General Assembly would have chosen to allow by
statute judicial challenges to fewer than one-half of house seats but not the
others.’’ (Citations omitted; emphasis omitted.)
30
‘‘ ‘Political subdivision’ means any voting district or combination of
voting districts constituting a part of a municipality.’’ General Statutes § 9-
372 (10).
31
As the defendants argue, we note that, in an unpublished decision arising
from a challenge to the election of then-Representative Joan Hartley, the
Superior Court adopted this construction of §§ 9-328 and 9-372 (7) more
than three decades ago. See Bogen v. Hartley, Superior Court, judicial district
of Waterbury, Docket No. 070798 (November 21, 1984).
32
See General Statutes § 9-323 (election of presidential electors, United
States Senator, and United States Representative); General Statutes § 9-324
(election of probate judges and governor, lieutenant governor, secretary of
the state, treasurer, attorney general, and comptroller); see also General
Statutes § 9-329a (primary elections).
33
Young also cites the remarks during a 1985 debate in our state House
of Representatives concerning the challenge of the election of then-Repre-
sentative Joan Hartley as evincing the legislature’s understanding that § 9-
328 is inapplicable because it, and other election contest statutes, did not
apply to state legislative elections, thus rendering legislative proceedings
under the elections clause the exclusive remedy. Although undoubtedly
interesting from a historical perspective, this debate is of minimal persuasive
value with respect to the interpretation of § 9-328 because it is not a contem-
poraneous statement of legislative intent. See, e.g., State v. Nixon, 231 Conn.
545, 560, 651 A.2d 1264 (1995) (‘‘[a]lthough we have on occasion and under
particularly compelling circumstances inferred earlier legislative intent from
the legislative history of a subsequent legislature . . . the views of a subse-
quent [legislature] form a hazardous basis for inferring the intent of an
earlier one’’ [citation omitted; internal quotation marks omitted]). In any
event, because we conclude that the statutory scheme at issue in the present
case is plain and unambiguous on this point, § 1-2z precludes our consider-
ation of this proffered extratextual evidence.
34
We acknowledge the plaintiff’s contention that the parties have consis-
tently treated the election as one for a municipal office. Specifically, he
represents that the town ‘‘had six [state legislative] offices up for election
in 2018.’’ Three of those offices were for assembly districts that crossed
town boundaries, and three were for districts that were located entirely
within the town. For the multitown districts, the major political parties
followed the nomination procedures for district offices set forth in General
Statutes § 9-382, which requires them to call a ‘‘state or district convention.’’
For the districts that were entirely within the town, the parties followed
the nomination procedures for ‘‘municipal offices’’ set forth in General
Statutes § 9-390 (a), which, in the absence of a direct primary, requires the
parties to endorse their candidates via a party caucus or town committee.
Assuming the correctness of the nominating procedures followed by the
parties, the legislature’s decision to provide different nominating proce-
dures for the office of state representative, depending on whether the assem-
bly district was contained entirely within one town or crossed town
boundaries, which reasons the plaintiff does not address, does not mean
that those same reasons would justify treating subsequent election contests
involving state representatives differently on the basis of the same distinc-
tion. This is particularly so given the strictly enumerated applicability of
the definitions contained in § 9-372, which extend to chapter 153 of the
General Statutes, a statutory scheme governing the unique concerns atten-
dant to the nomination of candidates by political parties, rather than the
administration of a general election.
35
Although subject matter jurisdiction is a threshold issue that we must
address before proceeding to the merits, we may make legal assumptions
with respect to jurisdiction in appropriate cases. See Sousa v. Sousa, 322
Conn. 757, 779–80, 143 A.3d 578 (2016) (assuming without deciding that
‘‘restriction of postjudgment modification of property distributions in [Gen-
eral Statutes] § 46b-86 [a] is in fact jurisdictional in nature’’ for purposes of
determining whether judgment was subject to collateral attack for lack of
jurisdiction). Given that we ‘‘do not engage in addressing constitutional
questions unless their resolution is unavoidable’’; State v. McCahill, 261
Conn. 492, 501, 811 A.2d 667 (2002); we address the defendants’ relatively
simple pleading argument first, rather than the more complicated constitu-
tional issue with respect to the availability of state law jurisdictional defenses
under the federal supremacy clause, under this court’s decisions in Sullins
and Fetterman, and the United States Supreme Court’s decisions on which
the defendants rely, namely, Haywood v. Drown, 556 U.S. 729, 129 S. Ct.
2108, 173 L. Ed. 2d 920 (2009), and Howlett v. Rose, 496 U.S. 356, 110 S. Ct.
2430, 110 L. Ed. 2d 332 (1990).
In addressing the pleading arguments first, we agree with Young’s
acknowledgment that the failure of the complaint to adequately raise a
federal constitutional violation is ‘‘not necessarily central to the question
of whether the [trial court] had jurisdiction over the federal claims . . . .’’
Given that the parties have briefed this issue, which presents a question of
law on the pleadings in this case, we address it first, despite the fact that
the sufficiency of a pleading, namely, whether the allegations therein state
a claim, is addressed via a motion to strike, rather than a motion to dismiss,
which challenges a court’s jurisdiction. See, e.g., Santorso v. Bristol Hospi-
tal, 308 Conn. 338, 349–50, 63 A.3d 940 (2013); see also id., 353–54 (concluding
that res judicata did not apply when ‘‘the first action was not disposed of
on its merits, notwithstanding the court’s granting of the defendants’ motions
to strike, when the motions granted should have been treated as motions
to dismiss’’). This is because, given the posture of this case, any potential
impropriety in the dismissal of the plaintiff’s constitutional claims is ren-
dered harmless by the fact that they are properly subject to a motion to
strike, given the lack of any evidence to support a claim of an intentional
deprivation of rights. See Fort Trumbull Conservancy, LLC v. Alves, 262
Conn. 480, 501–502, 815 A.2d 1188 (2003) (procedurally improper granting
of motion to dismiss instead of motion to strike is harmless error when
there is nothing in record to suggest plaintiff could amend complaint to
state viable claim); McCutcheon & Burr, Inc. v. Berman, 218 Conn. 512,
528, 590 A.2d 438 (1991) (same); Davis v. Davis-Henriques, 163 Conn. App.
301, 313, 135 A.3d 1247 (2016) (The Appellate Court affirmed a judgment
of dismissal in a probate appeal from a denial of a collateral attack on a
probate decree because the complaint did ‘‘not set forth a colorable claim
that the . . . decree was procured by fraud, mistake, or like equitable
ground. As a result, the plaintiff’s complaint is legally insufficient, and there
is nothing in the record to suggest that the plaintiff could amend his com-
plaint to allege a viable claim for relief under [General Statutes] § 45a-
24.’’); Mercer v. Rodriquez, 83 Conn. App. 251, 267–68, 849 A.2d 886 (2004)
(affirming judgment dismissing complaint because, although trial court
improperly determined that prisoner’s failure to exhaust available adminis-
trative remedies as required by federal Prison Litigation Reform Act of 1995,
42 U.S.C. § 1997e [a], was subject matter jurisdictional, failure to plead
exhaustion nevertheless rendered complaint subject to motion to strike);
accord Gold v. Rowland, 296 Conn. 186, 205 n.18, 994 A.2d 106 (2010) (noting
that plaintiff failed to identify evidence that would cure deficiencies in
complaint, and concluding that ‘‘[w]hen a complaint properly would have
been subject to a motion to strike and the plaintiff cannot cure the deficienc-
ies in the complaint, we properly may reverse the trial court’s denial of a
motion to dismiss rather than remand the case to the trial court so that the
defendant may file a motion to strike that the trial court would be required
to grant’’).
36
The Second Circuit further noted that, ‘‘[w]ithout question, courts have
found due process violations in voting cases before, but each case involved
an intentional act on the part of the government or its officials. . . . Infringe-
ments of voting rights that have risen to the level of constitutional violation
include: dilution of votes by reason of malapportioned voting districts or
weighted voting systems . . . purposeful or systematic discrimination
against voters of a certain class . . . geographic area . . . or political affili-
ation . . . and other [wilful] conduct that undermines the organic processes
by which candidates are elected . . . . Each required intentional state con-
duct directed at impairing a citizen’s right to vote.’’ (Citations omitted.)
Shannon v. Jacobowitz, supra, 394 F.3d 96; see also footnote 38 of this
opinion.
37
The Second Circuit has observed that it is not alone in requiring proof
of intent, citing Rossello-Gonzalez v. Calderon-Serra, 398 F.3d 1, 14 (1st
Cir. 2004), Siegel v. LePore, 234 F.3d 1163, 1181 (11th Cir. 2000), Bennett
v. Yoshina, 140 F.3d 1218, 1226 (9th Cir. 1998), and Hutchinson v. Miller,
797 F.2d 1279, 1283 (4th Cir. 1986). Rivera-Powell v. New York City Board
of Elections, 470 F.3d 458, 469 n.16 (2d Cir. 2006).
38
A review of federal case law provides various examples of purposeful
misconduct generally found sufficient to state such a constitutional claim.
See Acosta v. Democratic City Committee, 288 F. Supp. 3d 597, 646–47
(E.D. Pa. 2018) (allegations of poll workers threatening and intimidating
voters, and distributing literature and encouraging voters to choose particu-
lar candidate, were sufficient evidence of intent if attributable to state actors
named as defendants); Westchester County Independence Party v. Astorino,
137 F. Supp. 3d 586, 622 (S.D.N.Y. 2015) (concluding that election officials’
decision to accept improper or late absentee ballot applications was suffi-
ciently intentional to defeat summary judgment motion, and proceeding to
next step, whether ‘‘fair and adequate state remedy exists’’); Willingham v.
County of Albany, 593 F. Supp. 2d 446, 459–60 (N.D.N.Y. 2006) (denying
motion for summary judgment on equal protection claim arising from absen-
tee ballot abuses during primary by party leader and campaign manager
who worked at public housing complex where abuses took place, including
‘‘[o]btaining absentee ballot applications, soliciting voters to complete those
applications, asserting false reasons on the applications, delivering the appli-
cations to the [board of elections], and receiving back the ballots for the
voters’’).
39
In support of his claim to the contrary, the plaintiff relies on Hunter
v. Hamilton County Board of Elections, 635 F.3d 219, 234–35 n.13 (6th Cir.
2011), in which the United States Court of Appeals for the Sixth Circuit
held that, in the context of elections, there can be an equal protection
violation even in the absence of evidence of intentional discrimination. See
id., 235 n.13 (rejecting defendant’s ‘‘argument that there can be no violation
of the [e]qual [p]rotection [c]lause . . . without evidence of intentional
discrimination’’). In support of this conclusion, the court in Hunter relied
on the United States Supreme Court’s decision in Bush v. Gore, supra, 531
U.S. 104–105. See Hunter v. Hamilton County Board of Elections, supra,
234 n.13. We disagree with the plaintiff’s reliance on Hunter, even if we
were to follow it instead of the Second Circuit case law that we generally
follow in cases of circuit splits. See, e.g., Gleason v. Smolinski, supra,
319 Conn. 444 n.41. Indeed, Hunter is factually distinguishable because it
concerned an election board’s lack of coherent or consistent standards for
the treatment of provisional ballots, rather than an isolated error like the
one at issue present in the present case. See Hunter v. Hamilton County
Board of Elections, supra, 234–37; cf. Northeast Ohio Coalition for Homeless
v. Husted, 696 F.3d 580, 597–98 (6th Cir. 2012) (finding sufficient evidence
of purposeful conduct given state’s ‘‘intent to enforce its strict disqualifica-
tion rules without exception, despite the systemic poll-worker error identi-
fied in this litigation and others,’’ which had ‘‘result[ed] in the rejection of
thousands of provisional ballots each year’’).
The Supreme Court’s decision in Bush is similarly distinguishable because,
in that case, the court concluded that an equal protection violation occurred
when, during a recount procedure, ‘‘each of the counties used varying stan-
dards to determine what was a legal vote. Broward County used a more
forgiving standard than Palm Beach County, and uncovered almost three
times as many new votes, a result markedly disproportionate to the differ-
ence in population between the counties.’’ Bush v. Gore, supra, 531 U.S.
107. In addition, the state officials in Bush used ‘‘variant standards’’ to
determine which votes would be counted and, as the result of the certifica-
tion deadline that had been imposed by the Florida Supreme Court, one
county had completed only a partial count. Id., 108. We conclude that Bush
is readily distinguishable because that case involved a state’s widespread
application of arbitrarily varying standards in determining the intent of the
voters. That decision does not stand for the proposition that any uninten-
tional mistake by an election official that casts doubt on the result of an
election violates the United States constitution.
Thus, we also disagree with the plaintiff’s reliance on Butterworth v.
Dempsey, 229 F. Supp. 754 (D. Conn.), aff’d sub nom. Pinney v. Butterworth,
378 U.S. 564, 84 S. Ct. 1918, 12 L. Ed. 2d 1037 (1964), and the decision that
followed on remand, Butterworth v. Dempsey, 237 F. Supp. 302 (D. Conn.
1964), for the proposition that, ‘‘under Baker v. Carr, [supra, 369 U.S. 186],
a claim made under the federal constitution cannot be limited by the state
constitution.’’ That case is distinguishable because it involved a challenge
to our state’s legislative districting in light of recently announced one person,
one vote principles, and the need for a state constitutional convention and
redistricting sooner than provided by the Connecticut constitution. See
Butterworth v. Dempsey, supra, 237 F. Supp. 306–307. Thus, the allegation
at issue in that case involved an equal protection violation that had been
imposed de jure, rather than the limited challenge to a flawed election at
issue in the present case. See Westchester County Independent Party v.
Astorino, 137 F. Supp. 3d 586, 619–20 (S.D.N.Y. 2015) (noting distinction
between ‘‘[l]aws that by their own terms burden the fundamental rights of
minority groups [that] raise particular concerns of invidious discrimination’’
and cases alleging ‘‘[u]neven or erroneous application of an otherwise valid
statute [that] constitutes a denial of equal protection only if it represents
intentional or purposeful discrimination’’ [internal quotation marks
omitted]).
40
We disagree with the plaintiff’s reliance on this court’s decision in Office
of the Governor v. Select Committee of Inquiry, supra, 271 Conn. 540, for
the proposition that the expiration of an underlying statutory deadline ren-
ders moot an appeal challenging a temporary injunction ordered prior to
that deadline. In Office of the Governor, this court noted that our state
House of Representatives had obliged the select committee to report its
findings and recommendations on or before June 30, 2004. Id., 548–49. This
court scheduled oral argument of the appeal for June 18, 2004, on the basis
of a representation from the select committee that, if the court ‘‘were to
hear the appeal on [that date], its proceedings would still be open as of that
date, so that, as of that date, the case would not be moot.’’ Id., 549. The
court stated that it then ‘‘heard and decided’’ that appeal on June 18, 2004,
and, ‘‘[b]ecause at that time the defendant was still in session, any question
of mootness by operation of the passage of time, which might have occurred
had this appeal been heard and decided at a later date, had been dispelled.
The appeal, therefore, is not moot by virtue of the defendant’s time frame
for reporting to the House of Representatives.’’ (Emphasis added.) Id. Office
of the Governor, therefore, does not support the plaintiff’s mootness analysis
because, although this court expressed some concern about the potential
for mootness caused by the passage of the June 30 deadline during the
pendency of the appeal, it never concluded that the appeal would have been
rendered moot by the passage of the deadline. Rather, the court simply
observed that any potential mootness concerns had been alleviated by the
scheduling of argument and the issuance of the court’s decision in that
appeal.
41
The plaintiff cites a 1933 Attorney General’s Opinion as standing for
the proposition that there is ‘‘significance in the ‘during the month’ require-
ment.’’ See Opinions, Conn. Atty. Gen. (May 1, 1933), pp. 147–48. We disagree
with the plaintiff’s reliance on that opinion, which was limited to whether
an election to fill a probate judge vacancy may be held at the same time
and same place as a vote for delegates to a constitutional convention. That
opinion did not address the consequence, if any, of failure to complete the
canvass during the month of the election.
42
Accordingly, we need not reach the merits of the defendants’ argument
that the trial court abused its discretion by granting a temporary injunction.
43
We acknowledge the well established ‘‘strong presumption in favor of
jurisdiction’’; (internal quotation marks omitted) State v. Evans, 329 Conn.
770, 784, 189 A.3d 1184 (2018); as well as the fact that the textual commitment
of jurisdiction over a matter to the legislative branch does not completely
preclude courts from certain limited actions related to those proceedings.
See Kinsella v. Jaekle, supra, 192 Conn. 723 (‘‘[a] court acting under the
judicial power of article fifth of the constitution may exercise jurisdiction
over a controversy arising out of impeachment proceedings only if the
legislature’s action is clearly outside the confines of its constitutional juris-
diction to impeach any executive or judicial officer . . . or egregious and
otherwise irreparable violations of state or federal constitutional guarantees
are being or have been committed by such proceedings’’ [citation omitted]);
see also footnote 27 of this opinion. Accordingly, we leave to another day
the extent to which a trial court may have jurisdiction over an application for
injunctive relief that is ‘‘incident to,’’ or in aid of preserving the legislature’s
jurisdiction, such as if a state officer refused to canvass the votes or declare
a winner in accordance with his or her duties under § 9-319, both of which
appear to be ministerial duties necessary to furnish prima facie evidence
of election results and to move the electoral challenge process to the legisla-
ture in order that it may exercise its prerogative to act as final judge of
election returns pursuant to the elections clause. See State ex rel. Morris
v. Bulkeley, supra, 61 Conn. 359 (‘‘That part of the election process which
consists of the exercise by the voters of their choice is wholly performed
by the electors themselves in the electors’ meetings. That part of it is often
spoken of as the election. But it is not the whole of the election. The
declaration of the result is an indispensable adjunct to that choice . . .
because the declaration furnishes the only authentic evidence of what the
choice is.’’); accord Butts v. Bysiewicz, supra, 298 Conn. 679 (The court
concluded that a certificate of party endorsement under § 9-388 ‘‘is the
only statutorily authorized means by which the [Secretary of the State] is
permitted to recognize a party’s endorsement of a candidate as its nominee.
The nomination evidenced by the certificate, in turn, is an essential predicate
to the [Secretary of the State’s] authority to place a candidate’s name on
the ballot. . . . Thus, in the absence of a valid certificate, the [Secretary
of the State] has nothing upon which to act.’’ [Citation omitted; footnote
omitted.]); see also Keogh v. Horner, 8 F. Supp. 933, 934–35 (S.D. Ill. 1934)
(federal district court lacked jurisdiction to issue writ of prohibition
restraining state governor from issuing certificate of election required by
state law because issuance of certificate was ministerial duty, and to hold
otherwise ‘‘would confer upon him the right to conduct and settle contests
concerning members of Congress, when that power is expressly conferred
upon the respective [h]ouse of Congress by the [c]onstitution of the United
States’’); State ex rel. Wahl v. Richards, supra, 44 Del. 573–74 (concluding
that court had jurisdiction to issue writ of mandamus requiring trial court,
sitting as board of canvass, to conduct recount in state election, noting that
if plaintiff ‘‘appear[ed] before the [state house of representatives] armed
with a certificate indicating his election, that body would still have the
exclusive right to determine whether he was a duly elected member’’ and
that ‘‘presentation of the certificate would bring the question before [that
body] and would be pertinent evidence for its consideration in determining
[the plaintiff’s] rights’’); People ex rel. Fuller v. Hilliard, 29 Ill. 413, 419–20
(1862) (elections clause did not deprive court of jurisdiction to compel
canvassing board to issue certificate of election to candidate for state legisla-
ture because issuance of certificate was ministerial, with ‘‘sole purpose is
to procure the requisite evidence, to present to that body, of a prima facie
right to a seat in it, independent wholly of the question of qualification’’).