Opinion
No. CV 10 6015774
November 3, 2010
MEMORANDUM OF DECISION ON MOTIONS TO DISMISS NOS. 105 AND 107
On October 26, 2010, the plaintiff, Martha Dean, the Republican candidate for Connecticut attorney general in the November 2, 2010 general election, initiated this action against the defendants, George C. Jepsen, the Democratic and Connecticut Working Family's candidate for attorney general, and Susan Bysiewicz, the secretary of the state. The plaintiff's complaint alleges that Jepsen does not meet the qualifications for the position of attorney general pursuant to General Statutes § 3-124. The complaint seeks the following remedies: (1) A declaratory ruling that Jepsen is not qualified for the position of attorney general; and (2) temporary or injunctive relief ordering the secretary of the state to direct the removal of Jepsen from the ballots for the November 2, 2010 election; or (3) in the alternative, temporary injunctive relief enjoining the secretary of the state from certifying the result of the election until further notice of the court; or (4) in the alternative, temporary injunctive relief enjoining the election for attorney general pending final resolution of the case.
General Statutes § 3-124 provides, in relevant part: "The Attorney General shall be an elector of this state and an attorney at law of at least ten years' active practice at the bar of this state."
A status conference was held at 12 p.m. on October 27, 2010, at which all the parties were represented. During the status conference, the defendants represented that they intended to challenge the court's subject matter jurisdiction to hear the case, including the plaintiff's standing to seek the requested relief. Given the temporal nature of the relief sought, the court ordered that the parties submit memorandums of law on those issues by 3 p.m. on October 28, 2010, and scheduled a hearing for 10 a.m. on October 29, 2010.
On October 28, 2010, the secretary of the state filed a motion to dismiss, as did Jepsen, for lack of subject matter jurisdiction. Jepsen also filed a motion to strike for failure to join indispensable parties. These matters were heard by the court on October 29, 2010.
"Once the question of subject matter jurisdiction has been raised, cognizance of it must be taken and the matter passed upon before [the court] can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction." (Internal quotation marks omitted.) Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 839 n. 6, 826 A.2d 1102 (2003). Therefore, the court must resolve the defendants' motions to dismiss before considering Jepsen's motion to strike or otherwise permitting the case to advance.
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction . . . When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, 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 necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006).
At oral argument and in her memorandum of law in support of her motion to dismiss, Bysiewicz argues that the plaintiff's complaint should be dismissed because: (1) The plaintiff lacks standing to bring her complaint; (2) the plaintiff's claims, as against her, are barred by sovereign immunity; and (3) the plaintiff's claims are nonjusticiable because the court lacks authority to render equitable relief. Similarly, Jepsen argued at oral argument and in his memorandum of law in support of his motion to dismiss that the plaintiff's complaint should be dismissed because: (1) The plaintiff lacks standing to bring her complaint under General Statutes § 9-324; (2) the court lacks jurisdiction to hear the plaintiff's complaint under the common law; (3) the plaintiff's claims against Bysiewicz are barred by sovereign immunity; and (4) the court, for policy reasons, should not exercise its equitable jurisdiction under the circumstances of this case.
I STANDING
The court first considers whether the plaintiff lacks standing to seek a declaratory judgment action requesting a ruling that Jepsen is not qualified for the position of attorney general under § 3-124. Practice Book § 17-54 provides that "[t]he judicial authority will . . . render declaratory judgments as to the existence or nonexistence (1) of any right, power, privilege or immunity; or (2) of any fact upon which the existence or nonexistence of such right, power, privilege or immunity does or may depend, whether such right, power, privilege or immunity now exists or will arise in the future." See also General Statutes § 52-29(a).
"One great purpose [of a declaratory judgment action] is to enable the parties to have their differences authoritatively settled in advance of any claimed invasion of rights, that they may guide their actions accordingly and often may be able to keep them within lawful bounds, and so avoid the expense, bitterness of feeling and disturbance of the orderly pursuits of life which are so often the incidents of law suits." (Internal quotation marks omitted.) Bysiewicz v. Dinardo, Connecticut Supreme Court, Docket No. SC 18612 (May 18, 2010). Accordingly, "to carry out the purposes intended to be served by such judgments, it is sometimes necessary to determine rights which will arise or become complete only in the contingency of some future happening." (Emphasis added; internal quotation marks omitted.) Id.
"[T]he trial court may, in determining the rights of the parties, properly consider equitable principles in rendering its judgment . . . This conclusion not only harmonizes the rule that actions in law and equity may be combined in this state . . . it is also in accord with our position favoring liberal construction of the declaratory judgment statute in order to effectuate its sound social purpose." (Citations omitted; internal quotation marks omitted.) Middlebury v. Steinmann, 189 Conn. 710, 715-16, 458 A.2d 393 (1983).
Nevertheless, "[i]mplicit in these principles is the notion that a declaratory judgment action must rest on some cause of action that would be cognizable in a nondeclaratory suit . . . To hold otherwise would convert our declaratory judgment statute and rules into a convenient route for procuring an advisory opinion on moot or abstract questions . . . and would mean that the declaratory judgment statute and rules created substantive rights that did not otherwise exist." (Citations omitted.) Wilson v. Kelley, 224 Conn. 110, 116, 617 A.2d 433 (1992).
The defendants argue that the plaintiff lacks standing to bring her declaratory judgment action because, under state election law, the courts do not have the jurisdiction to consider qualifications for office prior to the election. They assert that there is no statutory or common-law authority that confers the right to run for political office only against candidates that are qualified to hold that office. Accordingly, they argue that each political party has the right to place their chosen candidate on the ballot, regardless of that candidate's qualifications to serve, as long as they abide by the election statutes. Thus, they maintain that the plaintiff's only remedy is to bring the action quo warranto, once the election has passed, and the results of such election have been certified.
The plaintiff counters that she has standing to request a declaratory judgment because, as a candidate for the same office as Jepsen, she has an interest in not being opposed by a candidate that is not qualified to hold that office. Therefore, while the plaintiff agrees that she could seek judicial review of Jepsen's qualifications if he is the successful candidate following the election, she asserts that she can also bring a declaratory judgment action prior to the election based on the possibility of a quo warranto action.
In essence, the defendants argue that there is no justiciable controversy until Jepsen has actually been elected; therefore, there is no aggrievement. "[J]usticiability comprises several related doctrines, namely, standing, ripeness, mootness and the political question doctrine, that implicate a court's subject matter jurisdiction and its competency to adjudicate a particular matter." (Internal quotation marks omitted.) Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 86, 952 A.2d 1 (2008).
The principal controversy here is whether the plaintiff has standing to request declaratory relief prior to the election. "It is a basic principle of our law . . . that the plaintiffs must have standing in order for a court to have jurisdiction to render a declaratory judgment . . . Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy . . . When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue . . . [Because] [s]tanding requires no more than a colorable claim of injury . . . a [party] ordinarily establishes . . . standing by allegations of injury [that he or she has suffered or is likely to suffer]. Similarly, standing exists to attempt to vindicate arguably protected interests." (Citation omitted; internal quotation marks omitted.) Bysiewicz v. Dinardo, supra, Connecticut Supreme Court, Docket No. SC 18612.
There are two distinct ways in which a party can demonstrate that it has standing to bring an action. "Standing is [either] established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved." (Internal quotation marks omitted.) Gold v. Rowland, 296 Conn. 186, 207, 994 A.2d 106 (2010). The plaintiff does not fall under either category.
"Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Andross v. West Hartford, 285 Conn. 309, 322, 939 A.2d 1146 (2008).
In this case, there is no statutory authority that authorizes the plaintiff to bring her declaratory action prior to the election. This court has found the following statutes that specifically authorize a court to grant pre-election relief: General Statutes §§ 9-323, 9-328, 9-324, 9-329a and 9-329b. Section 9-323, for election of federal officers, § 9-324, for election of state officers and probate judges, and § 9-328, for municipal officers and justices of the peace, all provide standing to "any elector or candidate" who is "aggrieved by any ruling of an election official in connection with [the election at issue.]" Because the plaintiff does not allege that she has been aggrieved by the ruling of an election official, these statutes are inapplicable. In addition, she does not have standing pursuant to § 9-329a because that statute exclusively governs contests and complaints in connection with any primary.
Although the defendants argue that the plaintiff seeks to establish standing to allege her claims under § 9-324, the allegations of the complaint do not contain any reference to § 9-324, nor did the plaintiff make any argument that she had standing under that statute.
Similarly, § 9-329b does not provide the plaintiff with a statutory basis for standing in this case. Although the plaintiff alleged in her complaint that § 9-329b permits this court to issue an order removing a candidate from a ballot label if "improperly on the ballot," the plaintiff did not argue at oral argument or in her memorandum that § 9-329b provides her with a statutory basis for standing to bring her complaint. Instead, the plaintiff only referred to § 9-329b in arguing that it creates an exception to the doctrine of sovereign immunity that permits her to maintain her claims as alleged against the secretary of the state. Nevertheless, as more particularly discussed in part II of this decision, the court concludes that § 9-329b only permits the court to order relief for procedural violations of election statutes, and does not grant the court authority to review a candidate's qualifications to serve in office.
The defendants argue that § 9-329b does not statutorily authorize a plaintiff to sue the secretary of the state in an election contest, but only provides the court with the power to order a particular remedy where standing to bring a claim exists under some other statute. Because the plaintiff does not argue that § 9-329b provides any basis for standing, the court need not consider this argument.
In addition, the plaintiff does not have standing under General Statutes § 52-491, which allows a party to file a quo warranto action to oust an unqualified office holder. That statute is inapplicable here because such an action is not ripe until the candidate has been elected to office. See Bysiweicz v. Dinardo, supra, Connecticut Supreme Court, Docket No. SC 18612.
Section 52-491 provides: "When any person or corporation usurps the exercise of any office, franchise or jurisdiction, the superior court may proceed, on a complaint in the nature of a quo warranto, to punish such person or corporation for such usurpation, according to the course of the common law and may proceed therein and render judgment according to the course of the common law."
Despite the absence of a statute conferring a right of action, the plaintiff asserts that she has standing based on common-law principles because she has been classically aggrieved. Whether a party has been classically aggrieved is examined on a case-by-case basis, and "requires an analysis of the particular facts of the case in order to ascertain whether a party has been aggrieved . . ." (Internal quotation marks omitted.) Goldfisher v. Connecticut Siting Council, 95 Conn.App. 193, 197, 895 A.2d 286 (2006). "The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate 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. Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specially and injuriously affected by the decision . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected." (Internal quotation marks omitted.) Gold v. Rowland, supra, 296 Conn. 207.
The plaintiff argues that she meets both prongs of the classical aggrievement test. Under the first prong, she maintains that she has an interest in not being opposed by an ineligible candidate. Under the second prong, she argues that there is a concrete, particularized and actual injury that arises when a candidate faces competition on the ballot from an ineligible candidate and, as a result, suffers from a loss of votes. Therefore, she argues that the potential injury she faces confers "competitive standing" to contest Jepsen's qualifications prior to the election.
This court disagrees. As described above, an action for declaratory judgment is based in equity. "A bill in equity [is] not an appropriate remedy" to challenge a person's right to hold public office, which may "only be tried on a writ of quo warranto, or proceedings in the nature of quo warranto." Hinckley v. Breen, 55 Conn. 119, 121, 9 A. 31 (1887). As such, absent a challenge brought pursuant to the statutes cited above, there is no authority that allows a candidate to dispute his opponent's qualifications in court until such opponent has actually been elected to office. See, e.g., 29 C.J.S., Elections § 254 (2005) ("[a]t common law there existed no right to contest in the courts the title to the nomination of a political party for office, and none now exists unless specifically provided for by statute"); 26 Am.Jur.2d 202, Elections § 398 (2004) ("[c]ourts do not have inherent authority to hear election cases . . . election contests are creatures of statute, and the power or jurisdiction of a trial court to consider such contests exists only to the extent authorized by statute").
The plaintiff relies on Bysiewicz v. Dinardo, supra Connecticut Supreme Court, Docket No. SC 18612, for the proposition that she is entitled to challenge Jepsen's qualifications a week before the election. In that case, the plaintiff, Bysiewicz, as a candidate for the Democratic nomination for the office of attorney general, brought an action against the Democratic party prior to this year's primary, seeking a declaratory judgment that she was qualified to serve as attorney general. Id. Thereafter, the Republican party was allowed to intervene as a defendant, and subsequently challenged the plaintiff's standing to bring the action, while asserting that her claims were not ripe for adjudication. Id. Specifically, it argued that she lacked standing because nothing prevented her from running for attorney general, regardless of her qualifications. It further argued that the plaintiff's claims were not ripe because they were contingent on the results of an election that had not yet occurred. Therefore, the Republican party argued that the action was premature and speculative, representing a mere request for an advisory opinion. Id.
Our Supreme Court held otherwise. Id. First, it found that the plaintiff satisfied the threshold standing requirement because there was a substantial question regarding whether she met the statutory qualifications to serve as attorney general. Furthermore, it found that, pursuant to the declaratory judgment standard, the relief she sought was available in a "cause of action that would be cognizable in a nondeclaratory suit," because a candidate's qualifications may be challenged in a quo warranto action. Id. More importantly, however, it found that she had standing to settle the question of her own qualifications because she had already declared an intention to run for attorney general, and she had a "particular interest in avoiding the great effort and expense of running . . . if her qualifications to serve in that office could be successfully challenged upon her election . . ." Id.
With respect to the action's ripeness, the court recognized that a quo warranto action was not justiciable until a candidate for office had actually assumed that office. Nevertheless, it held that the plaintiff had appropriately brought her action before the election to assess whether she qualified to serve as attorney general because a "great purpose" of a declaratory judgment action is to enable parties to determine their rights so "that they may guide their [future] actions accordingly . . ." Id. Therefore, in that case, the Supreme Court concluded that its decision would assist the plaintiff in deciding whether to run for office, while also allowing the Democratic party to decide whether it would endorse the plaintiff as its candidate. The court also reasoned that the plaintiff's claims were ripe because of the potential harm to her interest in avoiding the great effort and expense of campaigning if she faced a post-election challenge to her qualifications, combined with the possible injury to "the public's interest in avoiding voter confusion and disruptions in the election process . . ." Id. Accordingly, the court concluded that the trial court had correctly concluded that it had subject matter jurisdiction over the plaintiff's action. Id.
Essentially, the Bysiewicz court articulated that, under certain circumstances, a court has jurisdiction to declare a candidate's qualifications prior to the actual election. The present case, however, does not present such circumstances. As discussed above, in Bysiewicz, the court found that the plaintiff had standing to resolve any uncertainty about her own rights because she had an interest in avoiding the great effort and expense of a campaign if her qualifications could, thereafter, be successfully challenged upon her election, and thus, prevent her from serving in office. Id. Moreover, implicit in the Supreme Court's decision is that there existed a public interest in resolving the matter early in the election process so as to avoid "confusion and disruptions in the election process . . ." Id. Therefore, the plaintiff's interests were particularly strong, given that it was sufficiently early in the election process.
In the present case, however, the plaintiff is not asking for a preliminary declaration regarding her own rights so that she may guide her actions accordingly. On the contrary, she is seeking to challenge her opponent's qualifications on the eve of the election. As a result, this court cannot protect the interests that the Bysiewicz court found so compelling. For instance, both Jepsen and the plaintiff have already expended great amounts of effort and money in their campaigns. The Democratic and the Connecticut Working Family parties have, similarly, spent a great deal of energy in nominating and supporting Jepsen. Unlike in Bysiewicz, which was decided prior to the primary, they cannot, at this juncture, endorse another candidate.
Additionally, the plaintiff's request for a declaratory judgment does not protect the public's interest in orderly elections. As of the filing of the plaintiff's complaint, just seven days prior to the election, the election process has already been well under way, and the state has already expended great resources. The secretary of the state argues that thousands of ballots have already been printed, and absentee ballots have already been cast. Equally important, the voters have been exposed to extensive campaigning by both parties. The publicity regarding any type of court order with only a few days left before an election has the potential of casting a cloud of uncertainty on the candidates, which cannot be adequately resolved prior to election day. Thus, by filing her action so close to the election, the plaintiff risks injecting impermissible confusion and disruption in the electoral process. See, e.g., Purcell v. Gonzalez, 549 U.S. 1, 4-5, 127 S.Ct. 5, 166 L.Ed.2d 1 (2006) ("[c]ourt orders affecting elections . . . can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase"); Caruso v. Bridgeport, 285 Conn. 618, 637, 941 A.2d 266 (2008) ("[t]he delicacy of judicial intrusion into the electoral process . . . strongly suggests caution in undertaking such an intrusion . . . [because] voters have a powerful interest in the stability of [an] election . . ." [citation omitted; internal quotation marks omitted]). Such disruption and confusion are precisely what the Court in Bysiewicz sought to avoid.
There can be no doubt that, at some point, the public interest in ensuring orderly elections outweighs any personal interests that the candidates may have. For instance, in a factually similar case, Liddy v. Lamone, 398 Md. 233, 236, 919 A.2d 1276 (2007), the plaintiff, a candidate for the Maryland office of attorney general, filed an action challenging the constitutional qualifications of his opponent eighteen days before the election. While the court agreed that, pursuant to Maryland law, a candidate must be qualified to run for attorney general; id., 237; it concluded that the plaintiff's action was barred because it was untimely. Id., 249-50. The court reasoned that the plaintiff could have raised his claims long before the general election, thereby avoiding any disruption to the electoral process. Id., 253. However, at that juncture, the voters and the secretary of state were impermissibly prejudiced because the election process was well underway. Id. "Allowing challenges to be brought at such a late date would call into question the value and the quality of our entire elections process and would only serve as a catalyst for future challenges. Such delayed challenges go to the core of our democratic system and cannot be tolerated." Id., 255; see also Butts v. Byziweicz, 298 Conn. 665, 674 (2010) (discussing the public's interest in ensuring that there is "order, rather than chaos" in the electoral process).
Under Maryland law, a candidate was required to submit a certificate, under oath, attesting that such candidate is qualified to hold the office. Liddy v. Lamone, supra, 398 Md. 237. Moreover, the law specifically stated that the candidate's name shall remain on the ballot if he is statutorily qualified. Id., 237 n. 6. Finally, unlike Connecticut, Maryland allowed any interested party to file a pre-election challenge to any act or omission that could illegally affect the outcome of the election. Id., 238.
Additionally, the Bysiweicz court's reference to Kneip v. Herseth, 87 S.D. 642, 649, 214 N.W.2d 93 (1974). supports the conclusion that, at this juncture, the plaintiff's remedy is to file a quo warranto action once the election has passed. In Kneip the plaintiff brought a declaratory judgment action, prior to the primary, seeking a declaration that he was qualified to serve as governor of South Dakota. Id., 646-47. The defendants moved to dismiss the action on the grounds that there was no justiciable controversy until the plaintiff had been nominated or elected. Id., 647. The court disagreed. It reasoned that it was permissible to bring a declaratory judgment action to determine the plaintiff's present rights, even though they were based upon future events "when the construction of [a voting statute] presents matters involving the public interest in which timely relief is desirable." Id., 148. Therefore, the court concluded that the plaintiff was entitled to resolve any controversy regarding his candidacy "by determining his status at a timely point." (Emphasis added.) Id., 649. Again, as in Bysiweicz, implicit in that court's decision was that a challenge prior to the primary was timely, while, at a later stage in the election process, a similar plaintiff would no longer be entitled to seek such a declaration due to the untimely nature of the action.
At oral argument the plaintiff relied on out of state cases to support her position that she has standing to challenge Jepsen's qualifications prior to the election. Those cases, however, provide little guidance in this matter because in each one, the action was in mandamus against an election official or political party. See, e.g., In re Jones, 978 S.W.2d 648, 651 (Tex.App. 1998) (Texas statute "specifically authorizes the [court] to issue a writ of mandamus to compel the performance of a duty imposed by law in connection with the holding of an election or party convention." Therefore, candidate had standing to file a mandamus action compelling political party to declare opposing candidate ineligible); Stewart v. Burks, 384 S.W.2d 316, 317-18 (Ky. 1964) (mandamus action to enjoin county clerk from placing a nominee's name on the election ballot).
The plaintiff has not demonstrated that there exists a right not to run against candidates that are unqualified to serve in office and, thus, she has not demonstrated that she has been aggrieved. This court agrees with the defendants that each political party is better suited to determine which candidate to endorse. If the voters ultimately elect a candidate that is statutorily unqualified to serve as attorney general, then such candidate's right to hold office may be challenged after the election, pursuant to § 52-491. Furthermore, given that she filed this action days before the election, the plaintiff has not demonstrated that this court can protect the interests discussed in Bysiewicz, namely, the interests in avoiding costly and time consuming campaigns, disruption and confusion, and in ensuring that challenges are brought early in the election process. Therefore, this court concludes that at this juncture, absent any other authority, a challenge to any candidate's qualifications must be adjudicated in a quo warranto action. Accordingly, for all the foregoing reasons, the plaintiff lacks standing to maintain her action against the defendants.
II SOVEREIGN IMMUNITY
Even if the court were to conclude that the plaintiff has standing to maintain her action, her claims against the secretary of the state would be barred by the doctrine of sovereign immunity, and therefore, the court would be unable to grant the injunctive relief the plaintiff seeks.
"[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss . . . A determination regarding a trial court's subject matter jurisdiction is a question of law." (Citation omitted; internal quotation marks omitted.) Miller v. Egan, 265 Conn. 301, 313, 828 A.2d 549 (2003). "Sovereign immunity relates to a court's subject matter jurisdiction over a case . . . The principle that the state cannot be sued without its consent, or sovereign immunity, is well established under our case law." (Citation omitted; internal quotation marks omitted.) Gold v. Rowland, supra, 296 Conn. 211.
"While the principle of sovereign immunity is deeply rooted in our common law, it has, nevertheless, been modified and adapted to the American concept of constitutional government where the source of governmental power and authority is not vested by divine right in a ruler but rests in the people themselves who have adopted constitutions creating governments with defined and limited powers and courts to interpret these basic laws. The source of the sovereign power of the state is now the constitution which created it, and it is now recognized that, as Mr. Justice Holmes wrote: A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends." (Internal quotation marks omitted.) Cox v. Aiken, supra, CT Page 21189 278 Conn. 211-12.
Not only have we recognized the state's immunity as an entity, but [w]e have also recognized that because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state . . . Exceptions to [the doctrine of sovereign immunity] are few and narrowly construed under our jurisprudence . . .
[T]he sovereign immunity enjoyed by the state is not absolute. There are [three] exceptions: (1) when the legislature, either expressly or by force of a necessary implication, statutorily waives the state's sovereign immunity . . . (2) when an action seeks declaratory or injunctive relief on the basis of a substantial claim that the state or one of its officers has violated the plaintiffs constitutional rights . . . and (3) when an action seeks declaratory or injunctive relief on the basis of a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer's statutory authority.
(Citations omitted; internal quotation marks omitted.) Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 349, 977 A.2d 636 (2009).
Both the defendants argue that the plaintiff's claims against the secretary of the state are barred by the doctrine of sovereign immunity. The plaintiff contends that she can maintain her action against Bysiewicz pursuant to the first exception to the doctrine of sovereign immunity because the legislature has statutorily waived the state's sovereign immunity under § 9-329b. More specifically, the plaintiff argues that the legislature, by the language of § 9-329b, has at least minimally waived the state's sovereign immunity as to the plaintiff's request that the court order the secretary of the state to direct the removal of Jepsen's name from the ballot for the November 2, 2010 election.
The defendants respond that because the secretary of the state is not empowered by the legislature to evaluate the qualifications of a candidate under § 3-124 prior to placing that candidate's name on the ballot, that the legislature did not intend, in enacting § 9-329b, to empower the court to order such relief under the facts of the complaint at issue, and therefore, has not waived the state's sovereign immunity in this case.
"For a claim made pursuant to the first exception, [the Supreme Court] has recognized the well established principle that statutes in derogation of sovereign immunity should be strictly construed . . . Where there is any doubt about their meaning or intent they are given the effect which makes the least rather than the most change in sovereign immunity." (Internal quotation marks omitted.) Columbia Air Services, Inc. v. Dept. of Transportation, supra, 293 Conn. 349-50. "When the legislature intends to waive immunity from suit or liability, it expresses that intent by using explicit statutory language." (Internal quotation marks omitted.) Hicks v. State, 297 Conn. 798, 802, 1 A.3d 39 (2010).
"[W]hen interpreting a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . To do so, we first consult 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. General Statutes § 1-2z . . . A statute is ambiguous if, when read in context, it is susceptible to more than one reasonable interpretation." (Citation omitted; internal quotation marks omitted.) Butts v. Bysiewicz, supra, 298 Conn. 672-73.
Section 9-329b provides: "At any time prior to a primary held pursuant to Sections 9-423, 9-425 and 9-464, or a special act or prior to any election, the Superior Court may issue an order removing a candidate from a ballot label where it is shown that said candidate is improperly on the ballot." In this case, whether § 9-329b waives the state's sovereign immunity depends on the meaning of the phrase "improperly on the ballot."
Only one Connecticut court has previously discussed the meaning of § 9-329b. See Kirkley-Bey v. Vazquez, Superior Court, judicial district of Hartford, Docket No. 10 6007952 (March 1, 2010, Peck, J.). In Kirkley-Bey, the plaintiffs, a slate of candidates for the primary election for the Hartford democratic town committee, brought suit pursuant to §§ 9-329a and 9-329b against the defendants, several Hartford city officials, seeking an order removing the members of a competing slate of candidates from the primary ballot. Id. The plaintiffs alleged that the defendants improperly validated and certified nineteen of the competing slate's petitions for placement on the ballot, in violation of General Statutes § 9-410(c). Id. The court ultimately concluded that the defendants had improperly validated and certified the petitions, and that the signatures contained therein were invalid. Id. Therefore, because the total amount of valid signatures remaining did not meet the amount required to be placed on the ballot, the court ordered that the competing slate of candidates be removed from the ballot label under § 9-329b. Id.
In interpreting the meaning of § 9-329b, the court stated that the statute, as it relates to § 9-329a, "plainly and unambiguously further empowers the Superior Court to act on behalf of aggrieved parties when it is shown that candidates are improperly on the ballot. Since its purpose is clear, the court is not authorized to look to the legislative history." Id. While the court in Kirkley-Bey concluded that the purpose of the statute was unambiguous, the court did not explicitly interpret the meaning of "improperly on the ballot." The court appears to have reached that conclusion due in large part to the circumstances of that case, as the complaint contained allegations that candidates were improperly on the ballot because of the failure to meet certain statutory procedural requirements for certification of candidates and placement on the ballot.
While the allegations of this case are similarly alleged to be based on statutory requirements, § 3-124 does not concern procedural requirements for certification to run as a candidate for attorney general, and thus, placement on the ballot, but qualifications to serve as attorney general. The distinction is an important one. Given the context of this case, the phrase "improperly on the ballot" is ambiguous because it is susceptible to either the plaintiff's argued-for interpretation that a candidate is "improperly on the ballot" under § 9-329b if he or she does not meet the statutory qualifications to serve as attorney general, or Bysiewicz's interpretation that a candidate is only "improperly on the ballot" if he or she has not met the statutory procedural requirements for certification to run as a candidate and placement on the ballot.
Because the language of § 9-329b is ambiguous, the court may consider its legislative history. Section 9-329b was enacted pursuant to Public Acts 1978, No. 78-125. Our Supreme Court has previously discussed the legislative history of this public act. See Gonzalez v. Surgeon, 284 Conn. 554, 566, 937 A.2d 13 (2007). In Gonzalez, our Supreme Court analyzed the legislative history of P.A. 78-125 to explore the purpose of § 9-410(c), statutory language of which is contained in section 3 of that act, while the statutory language of § 9-329b is contained in section 5. The court concluded that "the legislature's focus in enacting P.A. 78-125 was on prohibiting the circulation by any one person of petitions for multiple candidates, on the presumption that the purpose and effect of such conduct is to siphon votes from the strongest rival candidate to one of the circulator's candidates." Gonzalez v. Surgeon, supra, 567.
Neither Gonzalez nor the legislative history of P.A. 78-125 specifically discuss the statutory language of § 9-329b. Section 5, however, was repeatedly grouped with sections 1 through 4 of that act, supporting the inference that section 5 was intended to support the legislative purpose identified in Gonzalez. Indeed, one legislator, after summarizing sections 1 through 5, commented that "these changes are designed to eliminate some specific abuses that have occurred and by prohibiting the circulation of petitions for rival candidates, the bill would present, I think, the somewhat unfair tactics of siphoning off the votes of a strong rival to a weaker one, thereby increasing the circulated relative strength." Conn. Joint Standing Committee Hearings, Elections, 1978 Sess., p. 4; see also 21 H.R. Proc., Pt. 4, 1978 Sess., p. 1455-56 (similarly grouping sections 1 through 5 together).
While the legislative history does not explicitly explain the meaning of "improperly on the ballot," the court can draw the inference from the purposes stated above, and the statute's enactment pursuant to that public act, that it was intended to cure procedural deficiencies or abuses in the election process that are set forth pursuant to statute. The legislative history contains no reference to the qualifications for attorney general under § 3-124, or the qualifications of any candidate, or an intent to allow a judge to remove a candidate from the ballot because he or she lacked such qualifications.
Moreover, as argued by the defendants, the overall statutory scheme of our election statutes as a whole supports our conclusion that "improperly on the ballot" is intended to refer to candidates that have failed to meet certain procedural requirements to run for a particular office. General Statutes § 9-416 provides that if certain statutorily defined circumstances fail to occur, "the party-endorsed candidate for such office shall be deemed to have been lawfully chosen as the nominee of such party for such office." General Statutes § 9-379 provides, in relevant part: "No name of any candidate shall be printed on any official ballot at any election except the name of a candidate nominated by a major or minor party unless a nominating petition for such candidate is approved by the Secretary of the State . . ." These statutes mandatorily require the secretary of the state to place the names of certain candidates for office on the ballot. The plaintiff has cited no statutes that permit the secretary of the state to evaluate the qualifications of a candidate, pursuant to § 3-124, prior to placing the name of a candidate on the ballot.
For the foregoing reasons, the court concludes that the phrase "improperly on the ballot," as contained in § 9-329b, refers to the names of candidates that, for certain statutorily created procedural reasons, should not have been placed on the ballot by the secretary of the state.
Therefore, because the plaintiff does not allege or otherwise argue that Jepsen's name is improperly on the ballot for any procedural reasons, § 9-329b is inapplicable to her claims, and cannot provide a basis for waiving Bysiewicz's sovereign immunity.
As for the other two exceptions to sovereign immunity, the plaintiff has not alleged or otherwise argued that Bysiewicz has violated her constitutional rights, wrongfully promoted an illegal purpose, or otherwise acted in excess of her statutory authority.
Further, the doctrine of sovereign immunity bars this claim because our Supreme Court has held that "actions for declaratory and injunctive relief may be brought without the consent of the state only when the plaintiff alleges that the state officials had acted in excess of their statutory authority or pursuant to an unconstitutional statute." (Emphasis added.) Gold v. Rowland, supra, 296 Conn. 212; see also Horton v. Meskill, 172 Conn. 615, 624, 376 A.2d 359 (1977) ("where no substantial claim is made that the defendant officer is acting pursuant to an unconstitutional enactment or in excess of his statutory authority, the purpose of the sovereign immunity doctrine requires dismissal of the suit for want of jurisdiction" [internal quotation marks omitted]).
For the reasons stated above, the doctrine of sovereign immunity applies to the plaintiff's claims against the secretary of the state and bars the plaintiff's complaint as alleged against the secretary of the state. Therefore, even if the court had not already concluded that the plaintiff lacks standing to maintain her action, it would be obligated to grant the secretary of the state's motion to dismiss for lack of subject matter jurisdiction on sovereign immunity grounds.
The granting of that motion would leave only Jepsen in the case as a defendant. Three of the four remedies sought by the plaintiff, however, namely, those seeking injunctive relief, could only reasonably be enforced against the secretary of the state. Thus, the court's conclusion that the secretary of the state should be dismissed from this action on sovereign immunity grounds would necessitate the conclusion that the court is unable to grant the injunctive relief the plaintiff seeks against Jepsen. Therefore, even if the plaintiff had standing to maintain her action, the only potentially valid remedy the plaintiff could continue to seek would be a declaratory ruling that Jepsen is not qualified for the position of attorney general.
For the foregoing reasons, the defendants' motions to dismiss the plaintiff's complaint are granted.
Because the court grants the defendants' motions to dismiss, it need not resolve Jepsen's motion to strike, although the court notes that it agrees that the parties stated in that motion would necessarily need to be joined in this action in order for it to proceed.