Gonzalez v. State Elections Enforcement Comm'n

• Decision Date: 10 September 2013
• Docket Number: AC 33651
• Court: Connecticut Court of Appeals
• Parties: MINNIE GONZALEZ v. STATE ELECTIONS ENFORCEMENT COMMISSION

MINNIE GONZALEZ v. STATE ELECTIONS ENFORCEMENT COMMISSION

AC 33651

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued March 11, 2013

officially released September 10, 2013

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(Appeal from Superior Court, judicial district of New

Britain, Schuman, J.)

Thomas J. Weihing, with whom, on the brief, was John T. Bochanis, for the appellant-cross appellee (plaintiff).

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

Opinion

ROBINSON, J. The plaintiff state representative, Minnie Gonzalez, appeals from the judgment of the trial court denying in part her appeal from the decision of the defendant, the State Elections Enforcement Commission, finding that she committed four violations of being knowingly present during the execution of an absentee ballot in violation of General Statutes § 9-140b (e). The trial court reversed the finding as to two of the four violations and remanded the matter to the defendant to reconsider the fine assessed. On appeal, the plaintiff claims that the two remaining violations should be reversed because (1) the trial court erred in failing to conclude that her due process right to a fair hearing was violated when the hearing officer and the defendant prejudged her case; (2) the trial court erred in finding that the hearing officer's decision was not arbitrary and capricious because (a) there was not substantial evidence to support the two remaining violations and (b) the hearing officer ignored the defendant's failure to provide exculpatory statements and made erroneous factual findings pertaining to the failure; (3) the trial court erred in finding that the hearing officer properly excluded certain written statements; and (4) the plaintiff was substantially prejudiced by the delay in prosecution. The defendant cross appeals claiming that the trial court erred in reversing two of the four violations found by the defendant because there was substantial evidence to support those violations. We affirm the judgment on the appeal and reverse the judgment on the cross appeal.

The following facts, as found by the hearing officer, and procedural history are necessary for our resolution of this appeal and cross appeal. On November 1, 2006, Michael Barry, a Hartford resident, filed a complaint with the defendant alleging that on the previous day, while completing an absentee ballot at the clerk's office at the city hall in Hartford, he observed the plaintiff, who was seeking reelection, talking to four people in Spanish while at least three of them were completing their absentee ballots.¹ He further alleged that after one of the voters, Raul Rivera, completed his ballot, the plaintiff took his envelope to the counter where voters signed in. Barry stated that he called the town clerk and the defendant to report what he had witnessed.

A hearing before hearing officer Stephen F. Cashman took place on this matter on June 10, 2009, July 9, 2009, and July 17, 2009.² The plaintiff was alleged to have committed one violation of § 9-140b (d) for possessing the absentee ballot of Raul Rivera, and five violations of § 9-140b (e) for being knowingly present when Raul Rivera, Jennie Rivera, Jose Echevarria, Maria Echevarria and Barry executed their absentee ballots.³

The hearing officer issued his final decision onDecember 16, 2009. He concluded that the plaintiff had been knowingly present when Raul Rivera, Jennie Rivera, Jose Echevarria and Maria Echevarria executed their absentee ballots, but not when Barry had executed his absentee ballot. He further found that there was insufficient evidence in the record to support a finding that the plaintiff had possessed an absentee ballot issued to Raul Rivera. The hearing officer assessed a fine of $4500 for the four violations. The plaintiff appealed to the Superior Court. The trial court reversed the violations with respect to Jose Echevarria and Maria Echevarria and sustained the violations with respect to Raul Rivera and Jennie Rivera. This appeal and cross appeal followed. Additional facts will be set forth as necessary.

Before we review the claims presented in the appeal and cross appeal, we set forth the standard governing our review of administrative agency rulings. "Judicial review of an administrative decision is a creature of statute . . . and [General Statutes § 4-183 (j)] permits modification or reversal of an agency's decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) [i]n violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error or law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. . . . The complaining party has the burden of demonstrating that its substantial rights were prejudiced by the error." (Internal quotation marks omitted.) Jones v. Connecticut Medical Examining Board, 129 Conn. App. 575, 581, 19 A.3d 1264, cert. granted on other grounds, 302 Conn. 921, 28 A.3d 338 (2011).

"Our review of an agency's factual determination is constrained by . . . § 4-183 (j), which mandates that a court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. . . . This limited standard of review dictates that, [w]ith regard to questions of fact, it is neither the function of the trial court nor of this court to retry the case or to substitute its judgment for that of the administrative agency. . . . An agency's factual determination must be sustained if it is reasonably supported by substantial evidence in the record taken as a whole." (Internal quotation marks omitted.) Lucarelli v. Freedom of Information Commission, 135 Conn. App. 807, 812, 43 A.3d 237 (2012).

"Judicial review of the conclusions of law reached administratively is also limited. The court's ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, ille-gally, or in abuse of its discretion. . . . Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts. . . . Our task is to review the court's decision to determine whether it comports with the Uniform Administrative Procedure Act [UAPA], General Statutes § 4-166 et seq., and whether the court reviewing the administrative agency acted unreasonably, illegally, or in abuse of discretion." (Citation omitted; internal quotation marks omitted.) Lawendy v. Connecticut Board of Veterinary Medicine, 109 Conn. App. 113, 118, 951 A.2d 13 (2008).

I

THE PLAINTIFF'S APPEAL

A

We first address the plaintiff's claim that the court failed to conclude that her due process rights were violated because the hearing officer had prejudged her case. Her due process claim arises from her contention that Cashman violated General Statutes § 4-176e,⁴ which prevents the same person who investigated a contested matter to be the hearing officer in a contested hearing on the same matter, when he voted to find that there was reason to believe that she had violated the elections statutes, volunteered to be the hearing officer and signed the proposed consent decree. She maintains that those actions rendered Cashman biased and, thus, his participation as the hearing officer in her case was a violation of her due process right to a fair hearing.⁵ We disagree.

The following additional procedural history is necessary to resolve this claim. The defendant received Barry's complaint on November 1, 2006. The staff attorney for the defendant, Marc W. Crayton, and lead legal investigator for the defendant, Gilberto Oyola, conducted the investigation into Barry's allegations. During the investigation, Crayton forwarded a copy of the complaint to the plaintiff in a letter dated November 15, 2006. The plaintiff submitted a response to the allegation in a letter dated November 27, 2006. At the defendant's regular meeting on October 10, 2007, five commissioners for the defendant, including Cashman, voted to find that there was reason to believe that the plaintiff had violated one count of § 9-140b (d) and five counts of § 9-140b (e). Cashman volunteered...