Lazar v. Ganim

          Argued November 4, 2019 ^[*]

         Procedural History

         Action seeking, inter alia, an order setting aside the results of the Democratic primary election held by the city of Bridgeport and directing a new special primary, and for other relief, brought to the Superior Court in the judicial district of Fairfield, where the court, Stevens, J., granted in part the defendants' motion to dismiss; thereafter, the case was tried to the court; judgment for the defendants and certifying the results of the primary election, from which the plaintiffs appealed to this court. Affirmed.

          Prerna Rao, for the appellants (plaintiffs).

          James J. Healy, with whom were John P. Bohannon, Jr., deputy city attorney, and John F. Droney, Jr., for the appellees (defendants).

          Robinson, C. J., and Palmer, McDonald, D'Auria, Mullins, Kahn and Vertefeuille, Js.

          OPINION

          ROBINSON, C. J.

         This appeal, which comes before this court pursuant to the expedited review procedure provided by General Statutes § 9-325, involves a claim that certain improprieties in the handling of absentee ballots for the 2019 Democratic primary election for municipal office (primary election) in the city of Bridgeport (city) rendered the result so unreliable that it must be set aside. The plaintiffs, Beth Lazar, Annette Goodridge and Vanessa Liles, who are registered Democrats residing in the city, brought this action against the defendants^[1] pursuant to subdivisions (1) and (2) of General Statutes § 9-329a (a).^[2] The plaintiffs alleged that extensive absentee ballot abuse and other improprieties leading up to the primary election rendered its result unreliable. Accordingly, they asked the trial court to set aside the results and to order a new, special primary election for all candidates pursuant to § 9-329a (b). The defendants moved to dismiss the action for lack of aggrievement. The trial court granted the motion to dismiss with respect to the plaintiff's claims brought pursuant to subdivision (1) of § 9-329a (a) but denied the motion with respect to the claims brought pursuant to subdivision (2). After a trial to the court, the court concluded that the plaintiff had failed to establish that the result of the primary election might have been different but for the alleged improprieties and rendered judgment for the defendants. The plaintiffs then requested that the trial court certify the following two questions to this court pursuant to § 9-325: (1) ‘‘Did the trial court err in finding that no plaintiff . . . has standing to challenge the [primary] election results under § 9-329a (a) (1) . . . ?'' And (2) ‘‘Did the trial court apply the wrong legal standard when declining to order a new primary?'' Upon the trial court's grant of their request, the plaintiffs filed this appeal. In their brief to this court, the plaintiffs raised the additional issue of whether this court is able to grant any relief to the plaintiffs or, instead, the appeal is moot in light of its timing, which implicates this court's subject matter jurisdiction. We conclude that the appeal is not moot. We further conclude that the trial court correctly determined that the plaintiffs lacked standing to invoke § 9-329a (a) (1) because they were not aggrieved and that the plaintiffs failed to establish that they were entitled to an order directing a new primary election under § 9-329a (a) (2). Accordingly, we affirm the judgment of the trial court.

         The record reveals the following facts, which were found by the trial court or are undisputed, and procedural history. The primary election took place on September 10, 2019. The mayoral candidates were Joseph P. Ganim and Marilyn Moore. There were 4337 walk-in ballots cast for Ganim and 4721 for Moore. In addition, 967 absentee ballots were cast for Ganim and 313 for Moore. Thus, Ganim won the election with 5304 votes, as against 5034 votes for Moore, by a margin of 270 votes.

         Thereafter, the plaintiffs, who voted in the primary election, brought this action pursuant to § 9-329a, alleging that certain individuals associated with the defendants or the city's Democratic Town Committee engaged in improper primary election activity, including the misrepresentation of absentee voting eligibility in violation of General Statutes § 9-135, the improper handling of absentee ballots in violation of General Statutes § 9-140b, attempts to influence the speech of any person in a primary in violation of General Statutes § 9-364a, and improprieties in the application and distribution process for absentee ballots in violation of General Statutes § 9-140. The plaintiffs claimed that, as the result of these allegedly improper activities, they were aggrieved by the ruling of an election official within the meaning of § 9-329a (a) (1) and that there had been a mistake in the count of the votes within the meaning of § 9-329a (a) (2). They sought a court order setting aside the result of the primary election, directing a new Democratic primary election for all candidates and requiring supervised voting in locations where a disproportionately large percentage of voters use absentee ballots.

         The defendants moved to dismiss the complaint on the ground that the plaintiffs were not personally aggrieved by the ruling of any election official for purposes of § 9-329a (a) (1). In their opposition to the motion to dismiss, the plaintiffs contended that they did not have to establish that they were classically aggrieved, that is, that they had (1) ‘‘demonstrate[d] a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all the members of the community as a whole, '' and (2) ‘‘establish[ed] that the specific personal and legal interest has been specially and injuriously affected by the decision.'' (Internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 539, 833 A.2d 883 (2003). Rather, they claimed that they were required to establish only that they had statutory standing, which ‘‘concerns the question [of] whether the interest sought to be protected by the complainant[s] is arguably within the zone of interests to be protected or regulated by the statute . . . .'' (Internal quotation marks omitted.) Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, 285 Conn. 381, 393, 941 A.2d 868 (2008). The plaintiffs also argued that § 9-329a (a) (2) required them to allege only that there had been a mistake in the count of the vote.

         The trial court concluded that the plaintiffs were not aggrieved for purposes of § 9-329a (a) (1) because they had not ‘‘suffered a personal or individual injury that was different from any other elector eligible to vote in the primary.'' Accordingly, the court granted the motion to dismiss the plaintiffs' claims pursuant to subdivision (1) of § 9-329a (a). The trial court also concluded, however, that the plaintiffs were not required to establish that they were personally aggrieved under § 9-329a (a) (2) but only that there had been a mistake in the count of the vote. In addition, the court concluded that subdivision (2) was broad enough to encompass not only a mechanical miscount but a mistake arising from the counting of votes that legally should not be counted, such as absentee ballots cast by voters who were not eligible to cast them. Accordingly, the court denied the motion to dismiss the claims pursuant to subdivision (2). The trial court conducted a trial over the course of two weeks, during which the plaintiff presented the following evidence: testimony by five witnesses that they had been solicited to submit absentee ballots, even though they did not satisfy the criteria for doing so under § 9-135; testimony by six witnesses that their completed absentee ballots were taken from them by canvassers associated with political campaigns, rather than mailed, in violation of § 9-140b (a); evidence that electors had filed multiple absentee ballot applications, some of which were missing signatures or were otherwise questionable; evidence that the absentee ballot moderator had violated procedures intended to protect ballot secrecy; evidence that the town clerk had modified the addresses on multiple absentee ballot applications in violation of § 9-140 (g); evidence that certain campaign workers had been paid exclusively to distribute absentee ballot applications in violation of § 9-140 (j); and evidence that numerous individuals had received applications for absentee ballots for distribution and failed to return a list to the town clerk's office identifying the electors to whom they gave the applications in violation of § 9-140 (k) (2). The trial court acknowledged that the conduct of the individuals who were paid exclusively to distribute absentee ballots and those who failed to return a list to the town clerk's office identifying the electors to whom they had distributed applications was ‘‘illegal and disturbing, '' an observation that, in our view, was warranted in light of the history of improper handling of absentee ballots in the city. See, e.g., Keeley v. Ayala, 328 Conn. 393, 427-28, 179 A.3d 1249 (2018) (trial court correctly determined that new special primary was required as result of improper handling of absentee ballots). The court was unable to determine, however, ‘‘the extent to which such conduct may have affected the primary as a whole.'' Accordingly, the trial court found that the plaintiffs had failed to establish that, ‘‘but for the . . . mistake in the count of the votes . . . the result of [the primary election] might have been different . . . .'' General Statutes § 9-329a (b). The court therefore rendered judgment in favor of the defendants.

         This expedited appeal pursuant to § 9-325 followed. The appeal was filed on Friday, November 1, 2019, and we ordered an expedited hearing of the appeal, which took place on Monday, November 4, 2019, the day before the general election was held. The plaintiffs claim on appeal that the trial court incorrectly determined that they lacked standing to bring a claim pursuant to § 9-329a (a) (1) and that it applied an improper legal standard in determining that the plaintiffs had failed to establish that they were entitled to an order directing a new primary election. The plaintiffs also contend that the appeal was justiciable at the time that it was filed because this court could order relief, namely, a new primary before the general election occurred. They further contend that, even if the general election were to occur before this court could decide the appeal, and even if that event rendered moot their claim that the trial court applied an incorrect legal standard when it denied their request for an order directing a new election because no relief could be granted, we still could address their standing claim under the capable of repetition, yet evading review exception to the mootness doctrine. In response, the defendants dispute the plaintiffs' claims challenging the rulings of the trial court, and they do not address the justiciability issue.

         We conclude that the appeal is not moot because a new general election could be held if this court concludes that the trial court improperly denied the plaintiffs' request for an order directing a new primary election. We further conclude that the trial court correctly determined that the plaintiffs did not have standing to assert a claim pursuant to § 9-329a (a) (1) and that the plaintiffs had not established that they were entitled to a new primary election.

         I

         Because it implicates this court's subject matter jurisdiction, we first address the plaintiff's claim that this appeal is justiciable. As we indicated, the plaintiffs contended in their brief to this court that this appeal was not moot at the time that it was filed because this court could order a new primary election before the general election occurred. Neither party has addressed the issue of whether this court can void a general election that has already occurred and order a new one after invalidating the primary election at which the candidates for the general election were chosen. Nevertheless, because the issue implicates this court's jurisdiction, we address it.

         This court has never directly addressed the issue of whether a primary election contest becomes moot after the general election has taken place. Cf. Caruso v. Bridgeport, 285 Conn. 618, 624-25 n.5, 941 A.2d 266 (2008) (Caruso II) (declining to address issue of whether this court has authority ‘‘to overturn a general election and order a new one based on the voiding of a primary election'' at which candidates were chosen). We held in Caruso v. Bridgeport, 284 Conn. 793, 804, 937 A.2d 1 (2007) (Caruso I), however, that the courts have no authority to order a postponement of a general election in an action brought pursuant to § 9-329a. In Caruso I, the plaintiff brought a certified appeal to this court pursuant to § 9-325, challenging the trial court's ruling in an action brought pursuant to § 9-329a denying his motion to postpone the general election pending the resolution of a separate appeal from other rulings by the trial court. Id., 795-97. We held that ‘‘§ 9-329a does not authorize the courts under any circumstances to order the postponement of a general election in an action brought pursuant to that statute'' because ‘‘the judge may go no further in extending relief than ...