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Independent Party of CT v. Merrill

Supreme Court of Connecticut

February 19, 2019

INDEPENDENT PARTY OF CT- STATE CENTRAL ET AL.
v.
DENISE W. MERRILL, SECRETARY OF THE STATE, ET AL.

          Argued October 19, 2018

         Procedural History

         Action for a judgment declaring, inter alia, that certain bylaws are the validly adopted and currently effective party rules of the statewide Independent Party, and for other relief, brought to the Superior Court in the judicial district of Hartford, where Michael Duff was substituted as a plaintiff and the defendant Michael Telesca et al. filed a counterclaim; thereafter, the case was tried to the court, Hon. A. Susan Peck, judge trial referee, who, exercising the powers of the Superior Court, rendered judgment for the defendants on the complaint and for the defendant Michael Telesca et al. on the counterclaim, and the plaintiffs appealed. Affirmed.

          Eliot B. Gersten, with whom was Johanna S. Katz, for the appellants (plaintiffs).

          Maura Murphy Osborne, assistant attorney general, with whom, on the brief, was George Jepsen, former attorney general, for the appellee (named defendant).

          William M. Bloss, with whom were Alinor C. Sterling and Emily B. Rock, for the appellees (defendant Michael Telesca et al.).

          Robinson, C. J., and Palmer, Mullins, Kahn, Ecker and Vertefeuille, Js.

          OPINION

          ROBINSON, C. J.

         This appeal is the latest battle in the war for control over the state's Independent Party between its Danbury faction, which is led by the plaintiffs, the Independent Party of CT-State Central and its officers, Michael Duff, Donna L. LaFrance, and Roger Palanzo, [1] and its Waterbury faction, which is led by two of the defendants, Michael Telesca and Rocco Frank, Jr. The plaintiffs appeal[2] from the judgment of the trial court, rendered after a bench trial, for Telesca and Frank on the complaint and the counterclaim in the present action, which both sought declaratory and injunctive relief. Specifically, the trial court ordered the named defendant, Secretary of the State Denise W. Merrill, [3] to accept candidate endorsements made pursuant to the Independent Party's 2010 bylaws (2010 bylaws), which, in effect, gave the Waterbury faction control over the Independent Party's statewide nominations. There are two principal issues among the plaintiffs' plethora of claims in the present appeal. First, we consider whether the trial court's order of supplemental briefing and oral argument concerning its subject matter jurisdiction, issued just prior to the 120 day decision deadline pursuant to General Statutes § 51-183b, [4] and after the plaintiffs' objection to the trial court's request for an extension, preserved its personal jurisdiction over the parties by stopping and later restarting the decision period. The second principal issue is whether the trial court properly determined that General Statutes § 9-374, [5] which requires the filing of party rules before the name of a candidate endorsed by a minor political party may be printed on an election ballot, rendered the 2010 bylaws controlling, as opposed to bylaws that the Danbury faction had filed with the Secretary in 2006 (2006 bylaws) prior to the Independent Party's receiving the 1 percent of statewide votes necessary to confer minor party status. Because we conclude that the order of supplemental briefing and argument opened the 120 day decision period and later restarted it, thus rendering the trial court's decision timely under § 51-183b, and also conclude that the trial court properly construed § 9-374, we affirm the judgment of the trial court.[6]

         The record reveals the following relevant facts, as found by the trial court, and procedural history. The genesis of the current Independent Party dates to 2003, when Telesca and others formed the Waterbury Independent Party (Waterbury party), ‘‘to run candidates for local office as an alternative to the major parties.'' The Waterbury party ‘‘endorsed a full slate of candidates for municipal elections in Waterbury and [saw] eight people [elected] to office, each of whom received more than 1 percent of the vote in [his or her] individual [race]. Because the candidates received at least 1 percent of the vote in each of those races, the Waterbury [party] was eligible for minor party status for those offices. Thereafter, Waterbury electors could register as Independent Party members for local elections. After the 2003 Waterbury municipal elections, the [Secretary] sent a letter to the Waterbury [party] requesting that it submit party rules. In 2004, the Waterbury [party] drafted bylawson how to conduct caucuses and created a nominating process for future races. Telesca's goal was to build a new statewide third party to help people get ballot access around the state. The Waterbury [party] bylaws were filed with the [Secretary and the] Waterbury town clerk . . . .''

         ‘‘In 2004, the Waterbury [party] decided to run candidates in races for state representative and state [senator] in the Waterbury area. . . . Around this time, Telesca learned about a separate Independent Party that had been formed in Danbury headed by [Robert] Fand that had reserved the name [‘Independent Party for the 30th Senate District' (Danbury party)]. Because the Danbury [party] had already reserved the party designation of Independent Party for the 30th Senate District, the Waterbury [party] was not allowed to nominate a candidate for that election. In 2004, Telesca and Fand reached an agreement that the Waterbury [party] would not operate in Danbury and the Danbury [party] would not operate in Waterbury. . . .

         ‘‘In 2006, the Waterbury [party] attempted to reserve the name ‘Independent Party' statewide but was not able to do so because there were local parties using the name ‘Independent' in both Danbury and Waterbury. The [Secretary] would not allow two different parties with any part of the same name on the ballot at the same time. In 2006, Telesca and [his colleague, John] Mertens learned from the [Secretary] that they needed to get the local independent parties to come together in order to . . . petition for statewide offices. In 2006, Telesca and Fand joined together and signed and filed a form [ED-601[7] with the Secretary] as members of the Independent Party Designation Committee, but they failed to obtain enough signatures to get ballot access for any statewide office. As a result, there was no statewide minor party established in that year. . . .

         ‘‘In September 2006, Fand, [John L.] Dietter, and LaFrance filed a form ED-48 with the [Secretary] designating themselves as the three members of the party committee forthe ‘Independent Party of CT-State Central.' . . . At the same time, these individuals filed the 2006 bylaws, which consisted of one page [entitled] ‘Party Rules Amended.' . . . The introductory paragraph of those rules states that the committee ‘adopts the following rules for the establishment of local committees and nomination of candidates.' . . . The final paragraph of the 2006 bylaws . . . indicates that the rules were passed unanimously at the meeting of the ‘State Central Committee of the Independent Party of Connecticut on [September 27, 2006],' and is signed by . . . Dietter [as] Chairman . . . LaFrance [as] Treasurer, and . . . Fand [as] Deputy Treasurer . . . .'' (Citations omitted; footnote added.)

         ‘‘In 2008, Fand and Telesca [again] joined together to create a statewide Independent Party. There were other Independent Party chapters in the state at this time, including ones in Winsted and Milford. Telesca assisted those chapters by providing information regarding the election process. The immediate goal in 2008 was to run Ralph Nader as a candidate for president . . . and achieve 1 percent of the vote, which would establish the Independent Party as a statewide minor party. See General Statutes § 9-372 (6).[8] In a joint effort to accomplish this goal, Telesca and Fand both signed and filed [a] form ED-601 . . . as the designated agents of the Independent Party. The form designated the name Independent Party not only for president, vice president, and electors, but also for state senate districts 24, 28, and 11, state assembly districts 110 and 96, United States congressmen for the third and fifth districts, and for several registrar of voters and probate judge races.'' (Footnote added.)

         The trial court credited Telesca's testimony that, ‘‘because there were different rules for the various local parties in the state who controlled the Independent Party line for their localities, he and Fand agreed that they would need to create a new set of bylaws to accomplish their joint goal of creating a statewide minor party. Without a statewide party, a local Independent Party could oppose a statewide candidate for any office by reserving the same or a similar party designation for [its town]. Running . . . Nader for president provided a clear path toward garnering 1 percent of the vote and establishing a statewide minor party. Once Nader achieved over 1 percent of the vote in the 2008 presidential election, the [Secretary] certified the Independent Party as a minor party and notified all town registrars of voters of the Independent Party's new status as a statewide minor party. . . . Subsequently, anyone in the state could register to vote as a member of the Independent Party.

         ‘‘Following the 2008 election, Telesca and Mertens drafted bylaws for the new statewide party. Telesca sent out [between] 700 [and] 800 postcards about a meeting to be held on March 20, 2010, concerning proposed bylaws to any registered member of the Independent Party who had voted in the last two elections. Mertens created a website and posted the proposed bylaws on it months in advance of the meeting. Telesca put an advertisement in the Hartford Courant announcing the meeting/caucus and gave advance notice to the [Secretary]. Telesca also sent Fand a postcard and gave him a copy of the proposed bylaws before the meeting, which Fand acknowledged. Telesca and [his colleague Mary] Iorio met with Fand about the bylaws for the new statewide party before the meeting was held.

         ‘‘On March 20, 2010, the Independent Party held a meeting in Waterbury of registered Independent Party members from around the state to ratify the [2010] bylaws for the new statewide party. At the meeting, Fand did not object either to the meeting, the idea of creating bylaws for the new statewide party, or the bylaws themselves, [and also did not] request any changes to the [2010] bylaws as proposed. There was an agenda for the meeting and a sign-up sheet. Only registered Independent Party members were allowed to vote on the [2010] bylaws. The vote to approve the bylaws was unanimous. The [2010] bylaws were filed with the [Secretary] on March 22, 2010 . . . . No objections were filed with the [Secretary] within sixty days of the filing date.'' (Citation omitted.)

         ‘‘A caucus was held on August 21, 2010, to nominate Independent Party candidates for placement on the November 2, 2010 ballot. The 2010 bylaws were used to guide the nomination process at the caucus. The Independent Party got ballot access for statewide offices in 2010 by going through the petitioning process for candidates and by filing a form ED-601 . . . . The purpose of the caucus was to endorse candidates for certain offices and to ratify endorsements for other offices that had been made through the petitioning process. At a meeting held on August 21, 2010, immediately prior to the caucus, Telesca was authorized to preside over the statewide caucus, file all paperwork regarding the upcoming state elections, and to act as the agent and acting chairman of the Independent Party.

         ‘‘Following the caucus, a document confirming the nominations and endorsements of the statewide Independent Party candidates for the 2010 election was filed with the [Secretary]. The document was signed by Telesca as presiding officer of the caucus, and LaFrance and Fand as agents of the Independent Party. . . . At the time, Fand and LaFrance constituted two-thirds of the [Independent Party of CT-State Central]. The [Secretary] subsequently approved a revised list of nominees on September 8, 2010. . . . All of the candidates were nominated pursuant to the 2010 bylaws. The new statewide Independent Party subsequently published a political advertisement showing its endorsed candidates for the 2010 election. . . .

         ‘‘[On the basis of] the evidence presented at trial, in the 2010 election cycle, there was no conflict between the Waterbury and Danbury factions of the Independent Party.'' (Citations omitted.) Indeed, the trial court also found that there ‘‘was no evidence of conflict between the Waterbury and Danbury factions in the 2008, 2009, 2010, or 2011 election cycles. The 2006 bylaws were not used by the Independent Party to nominate anyone for president in 2008 or for statewide office in 2008, 2010, 2012, or 2014. The Danbury faction did not object to the caucuses held pursuant to the 2010 bylaws to nominate candidates for statewide office in either 2010 or 2012. On June 10, 2012, the Independent Party held a caucus to elect the officers of the statewide party.''

         The conflict between the factions that led to litigation first developed in early 2012, when ‘‘Fand invited Tel-esca to a meeting with Danbury mayor Mark Boughton in an effort to gain Telesca's support for Boughton as the endorsed candidate of the Independent Party [for governor]. Boughton hoped to run for governor as the next nominee of the Republican Party. Telesca refused to give Fand his assurance, as chairman of the Independent Party, that he would endorse Boughton for governor and informed Fand that the Independent Party's endorsement of candidates was upto the party membership, not him. After that meeting, Telesca and Fand's relationship soured.

         ‘‘Because Nader received more than 1 percent of the vote in 2008 presidential election, the Independent Party was able to nominate and endorse a candidate for the 2012 presidential election without having to go through the petitioning process. On August 21, 2012, the Independent Party held a caucus, conducted pursuant to the 2010 bylaws, to nominate and endorse a presidential candidate for 2012. The votes were limited to Independent Party members. At the caucus, Rocky Anderson was selected as the presidential nominee of the Independent Party. Although the 2006 bylaws reserved the right of the Danbury faction to make the Independent Party's nomination for president, the nomination for president was decided at the August 21, 2012 caucus [pursuant to] the 2010 bylaws without objection. Because Anderson failed to garner at least 1 percent of the vote for president, the Independent Party lost its presidential ballot line for the 2016 presidential election.

         ‘‘In 2014, the Independent Party held a statewide caucus and nominated candidates pursuant to the 2010 bylaws. No one objected to the use of the 2010 [bylaws] for Independent Party nominations in the 2014 statewide elections. In 2015, local Independent Party chapters nominated candidates for municipal elections. In 2016, the Danbury faction and the Waterbury faction nominated different candidates for the Independent Party's state senate endorsement for one particular race. On August 23, 2016, the Danbury faction held an endorsement event at which nominations for president, vice president, United States Senate, United States House of Representatives, state senate and state [house] were made and thereafter filed with the [Secretary]. Notice of the meeting was given pursuant to General Statutes § 9-452a. . . . Telesca attended that endorsement meeting and voted no without comment when the nominees were presented for a vote. Telesca did not challenge how Duff, the presiding officer, con- ducted the meeting. Nor did Telesca challenge anyone's right to vote at the meeting. Telesca filed a complaint with the State Elections Enforcement Commission against the current members of the [Danbury faction], Duff, LaFrance, Palanzo and others. The [Waterbury faction] also selected nominees at an event noticed for that purpose which were also filed with the [Secretary]. Where there were competing nominations, the [Secretary] did not accept either nomination for placement on the ballot. A major point of contention between the two factions is that the Waterbury faction believes that the Danbury faction is merely a proxy for the Republican Party and not truly representative of the Independent Party.'' (Citation omitted; footnote omitted; internal quotation marks omitted.)

         The plaintiffs then brought the present action for declaratory and injunctive relief, which is the latest in a line of lawsuits arising from the conflict between the Waterbury and Danbury factions.[9] The case was tried to the court, Hon. A. Susan Peck, judge trial referee, on October 11, 17, and 18, 2017, with posttrial oral argument on March 23, 2018. Following supplemental briefing and oral argument with respect to whether the political question doctrine deprived the trial court of subject matter jurisdiction over this case, on August 21, 2018, the trial court issued a lengthy memorandum of decision in which it concluded that it had subject matter jurisdiction over this case[10] and rendered judgment for the defendants on the complaint.

         With respect to its specific findings of fact and conclusions of law, the trial court first concluded as a matter of statutory interpretation that the 2010 bylaws were controlling under the statutory scheme governing minor parties, in particular §§ 9-374 and 9-372 (6), the ‘‘plain language of [which] indicates that a minor party does not exist in Connecticut until it designates a candidate for office who achieves 1 percent of the vote.'' The trial court further observed that, in contrast to the 2010 bylaws, which were created in a statewide process after Nader's nomination in 2008, the 2006 bylaws were filed with the Secretary at a time when ‘‘the party so-named had not achieved minor party status for any statewide office.'' Thus, the trial court determined that the ‘‘2006 bylaws are valid only to the extent they are recognized as such within the local committee. Although the plaintiffs filed the 2006 bylaws with the [Secretary], the filing of these rules merely allowed the [Danbury faction] to nominate local candidates and get them on an official ballot once they had attained 1 percent of the vote for a particular office. The 2006 bylaws did not automatically allow the [Danbury faction] to gain control of the statewide Independent Party after the 2008 presidential election.''[11] (Footnote omitted.) Accordingly, the trial court concluded that ‘‘the only statewide Independent Party was created post-2008, and the 2010 bylaws are the only valid governing rules of that party.''[12]

         The trial court also rejected the plaintiffs' additional arguments about why the 2006 bylaws should be considered controlling. With respect to those relevant to this appeal, the trial court first considered the plaintiffs' conduct subsequent to the adoption of the 2010 bylaws and concluded that ‘‘the defendants have established by a preponderance of the evidence submitted in this case [their special defense alleging] that the plaintiffs have waived any right they may have had to challenge the validity of the 2010 bylaws.'' The trial court also rejected the plaintiffs' contention that a 2012 decision issued by Judge Mark H. Taylor in Independent Party of Connecticut v. Dietter, Superior Court, judicial district of Waterbury, Docket No. CV-12-5016387-S (September 28, 2012) (2012 Waterbury action), which had concluded ‘‘that the 2006 bylaws were the validly adopted Independent Party rules, '' was entitled to preclusive effect in the present case. The trial court reasoned that the 2012 Waterbury action was distinguishable because it did not concern statewide office, addressed only ‘‘a motion for a temporary order of mandamus, and . . . was [subsequently] withdrawn.''

         Accordingly, the trial court concluded that the plaintiffs ‘‘failed to establish by a preponderance of the evidence that they are entitled to the declaratory and injunctive relief requested in their second amended complaint, '' which would have given them control over the Independent Party. Instead, the trial court concluded that ‘‘the defendants . . . have established by a preponderance of the evidence that the 2010 bylaws are the validly adopted and operative bylaws of the Independent Party/Independent Party of Connecticut, filed pursuant to the requirements of § 9-374, and that [Telesca and Frank] are the duly elected officers of the Independent Party/Independent Party of Connecticut, and the individual plaintiffs are not. In addition, the court hereby declares that the 2006 bylaws apply only to the Danbury faction's local committee of the Independent Party. Finally, the court hereby declares and orders that the [Secretary] must accept only the nominations and endorsements of the Independent Party/Independent Party of Connecticut, made pursuant to the 2010 bylaws filed with the [Secretary] on March 22, [2010], or as may be amended, pursuant to . . . § 9-374.'' According to the plaintiffs, this order effectively ‘‘gives the Waterbury faction, under the leadership of Telesca and Frank, control of the statewide ballot line.'' This expedited appeal followed.[13] See footnote 2 of this opinion.

         On appeal, the plaintiffs claim that the trial court (1) lost personal jurisdiction over this case when it failed to render judgment within 120 days as required by § 51-183b, (2) improperly construed § 9-374 in concluding that the 2010 bylaws are controlling, (3) improperly declined to give preclusive effect to Judge Taylor's deci- sion in the 2012 Waterbury action, (4) committed clear error in finding that they had waived their objections to the 2010 bylaws, (5) crafted an order that violated their constitutional rights, and (6) abused its discretion in permitting the defendants to amend their answer to assert special defenses and counterclaims. Additional relevant facts and procedural history will be set forth in the context of each of these claims as necessary.

         I

         WHETHER § 51-183B DEPRIVED THE TRIAL COURT OF PERSONAL JURISDICTION

         Relying primarily on Foote v. Commissioner of Correction, 125 Conn.App. 296, 8 A.3d 524 (2010), and Waterman v. United Caribbean, Inc., 215 Conn. 688, 577 A.2d 1047 (1990), the plaintiffs first claim that the trial court lost personal jurisdiction over this case because it failed to issue its decision within 120 days after oral argument and posttrial briefing as required by § 51-183b. The plaintiffs argue that their refusal to consent to the extension of time requested by the trial court deprived it of authority to issue the decision after 120 days had passed, and that countenancing the trial court's attempt to extend the deadline by raising subject matter jurisdictional questions at the last minute would remove the ‘‘teeth'' from § 51-183b. The plaintiffs further argue that it was improper for the trial court to raise subject matter jurisdictional questions so late in the process because the parties had mentioned these issues repeatedly earlier in the proceedings. In response, the defendants contend that the trial court's decision was timely under § 51-183b because its order of supplemental briefing and argument concerning its subject matter jurisdiction, which was filed prior to the expiration of the original 120 day decision period, had the effect of stopping and then restarting the 120 day decision period after the court heard supplemental arguments on August 3, 2018. We agree with the defendants and conclude that the trial court's order requiring supplemental briefing to address a colorable jurisdictional issue had the effect of stopping the 120 day decision period, which then started anew after supplemental arguments, thus rendering its decision timely under § 51-183b.

         The record reveals the following additional relevant facts and procedural history. On July 17, 2018, four days before the trial court's decision was due pursuant to § 51-183b, the trial court left voice mail messages for the parties, requesting a sixty day extension to issue the decision and asking them to file certain additional proposed orders. On July 18, 2018, the defendants filed proposed orders and did not comment as to timeliness. That same day, the plaintiffs filed a response declining to submit additional filings and refusing to waive the 120 day decision deadline, stating that a decision was needed to facilitate plans for the 2018 elections in light of the upcoming September 5, 2018 nomination filing deadline pursuant to General Statutes § 9-452. On July 19, 2018, the trial court issued an order directing the parties to brief the question of whether the court had subject matter jurisdiction over the case under, inter alia, the political question doctrine, and to appear for oral argument on that issue on August3, 2018. Following oral argument, on August 21, 2018, the trial court issued a comprehensive memorandum of decision addressing both the jurisdictional issue and the merits of the various claims made by the parties.

         At the outset, we note that the plaintiffs' claim concerns the application of the case law interpreting § 51-183b to the undisputed facts, which raises a question of law over which our review is plenary. See, e.g., Tomlinson v. Tomlinson, 305 Conn. 539, 546, 46 A.3d 112 (2012); see also Gilmore v. Pawn King, Inc., 313 Conn. 535, 542, 98 A.3d 808 (2014) (‘‘we do not write on a clean slate when this court previously has interpreted a statute'' [internal quotation marks omitted]).

         ‘‘[I]n past cases interpreting § 51-183b and its predecessors, we have held that the defect in a late judgment is that it implicates the trial court's power to continue to exercise jurisdiction over the parties before it. . . . We have characterized a late judgment as voidable rather than as void . . . and have permitted the lateness of a judgment to be waived by the conduct or the consent of the parties. . . . [A]n unwarranted delay in the issuance of a judgment does not automatically deprive a court of personal jurisdiction. Even after the expiration of the time period within which a judge has the power to render a valid, binding judgment, a court continues to have jurisdiction over the parties until and unless they object. It is for this reason that a late judgment is merely voidable, and not void.'' (Citation omitted; internal quotation marks omitted.) Foote v. Commissioner of Correction, supra, 125 Conn.App. 300-301, quoting Waterman v. United Caribbean, Inc., supra, 215 Conn. 692; see also Commission on Human Rights & Opportunities ex rel. Arnold v. Forvil, 302 Conn. 263, 269-70, 25 A.3d 632 (2011) (noting that § 51-183b concerns personal rather than subject matter jurisdiction).

         The ‘‘completion date'' of trial, for purposes of starting the 120 day period, includes the filing of briefs and completion of oral argument because ‘‘briefing of the legal issues [is] a component of the judicial gathering of the materials necessary to a well reasoned decision. In related contexts, ‘completion' has been held to encompass the availability of all the elements directly or indirectly to be considered in the rendering of a decision.'' Frank v. Streeter, 192 Conn. 601, 604, 472 A.2d 1281 (1984); see also Fibre Optic Plus, Inc. v. XL Specialty Ins. Co., 125 Conn.App. 399, 406, 8 A.3d 539 (2010) (‘‘completion date'' includes any oral argument heard subsequent to filing of briefs), cert. granted, 300 Conn. 907, 12 A.3d 1003 (2011) (appeal withdrawn February 14, 2012), and cert. granted, 300 Conn. 907, 12 A.3d 1003 (2011) (appeal withdrawn February 28, 2012).

         Our decision in Commission on Human Rights & Opportunities ex rel. Arnold v.Forvil, supra, 302 Conn. 263, controls the plaintiffs' claim in the present appeal. In that case, we followed the Appellate Court's decision in Statewide Grievance Committee v.Ankerman, 74 Conn.App. 464, 470, 812 A.2d 169, cert. denied, 263 Conn. 911, 821 A.2d 767 (2003), and concluded that, ‘‘when a trial court properly reopens a case during the pendency of the 120 day statutory time period, the completion of proceedings scheduled on the date the proceedings were reopened constitutes the relevant completion date for purposes of commencing the 120 day limitation period for rendering judgment.'' (Emphasis added.) Commission on Human Rights & Opportunities ex rel. Arnold v.Forvil, supra, 271; see also Statewide Grievance Committee v.Ankerman, supra, 470 (trial court's order that attorney appear at hearing on disposition of grievance proceedings opened ...


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