Osorio-Fuentes v. Smith, No. CV04 0486751 S (CT 4/12/2004), CV04 0486751 S
| Decision Date | 12 April 2004 |
| Docket Number | No. CV04 0486751 S,CV04 0486751 S |
| Court | Connecticut Supreme Court |
| Parties | Menen Osorio-Fuentes et al. v. Ronald Smith et al. |
The plaintiffs, candidates for the offices of co-chair of the Democratic Town Committee for Wards 16 and 15, filed a three-count claim on February 13, 2004, alleging the defendants, Ronald Smith, the New Haven Town Clerk and Sally Brown, the Deputy Town Clerk, caused the plaintiffs irreparable injury when Brown erroneously informed them on or about January 30, 2004, by way of telephone, that their names would be placed on ballot levers 2B and 3B for the Democratic Party primary. In accordance with state election laws, the primary was scheduled for Tuesday, March 2, 2004.
A hearing was held before this court on April 2, 2004, where plaintiffs and the defendants stipulated and agreed that the Plaintiffs Franklin and Osorio-Fuentes were originally designated ballot levers 2B and 3B on the voting machines in Ward 16, and plaintiff Lopez was designated lever 2B in Ward 15. On or about February 2, 2004, the Town Clerk's Office for New Haven issued a written publication confirming the plaintiffs' ballot positions. The plaintiffs allege that in reliance upon Brown's verbal representations, they printed and distributed campaign literature using these ballot lever designations. They also campaigned in their respective Wards, and in doing so, they informed prospective voters of these ballot lever designations.
It was further agreed that on or about February 8, 2004, defendant Brown verbally informed the plaintiffs of a mistake in these ballot lever designations. She told the plaintiffs that the ballot lever designations previously assigned to the plaintiffs were now to be assigned to their opponents in the primary. Plaintiffs Franklin and Osorio-Fuentes would now have their names placed on ballot levers 2C and 3C respectively in Ward 16, and plaintiff Lopez's name would now be placed on ballot lever 2C on the voting machines in Ward 15. On February 9, 2004, Brown in her capacity as Deputy Town Clerk forwarded letters to the defendants informing them of these ballot lever designation changes. Thereafter, on February 13, 2004, the plaintiffs filed the present action.
Count One claims that the actions taken by defendant Brown were intentional and constitute extreme misconduct in Brown's official capacity as Deputy Town Clerk. They claim that these actions violate General Statute §9-363, which prohibits the circulation of misleading instructions to voters, and that Brown's actions "will have the effect of causing the plaintiffs to lose the [primary] election due to voter confusion, which was caused by the switch in lever numbers." The plaintiffs argue that Brown's actions gave them less than 18 days to meaningfully educate the voters regarding the new ballot lever designations.
Count Two of the plaintiff's complaint alleges that Brown's actions, taken under the auspices of the New Haven Town Clerk's Office, constitute a state action, which must be accompanied by due process protections. Thus, the plaintiffs were not accorded any such protections as guaranteed by the state and federal constitutions, more specifically, the due process clause of the fourteenth amendment, as enforced through United States Code 42 Sec. 1983. Count Three claims an infringement on voters' ability to vote for the candidate of their choice.
The plaintiffs in their complaint requested temporary and permanent injunctive relief prohibiting the defendants Smith and Brown from changing the plaintiffs' previously designated ballot lever positions; damages; costs and attorneys fees pursuant to United States Code 42 Sec. 1988; and equitable relief.
On February 17, 2004, the court (Pittman, J.) signed an order to show cause and scheduled the matter for February 23, 2004. The court further ordered the plaintiffs to make service on the defendants on or before February 18, 2004. The court notes that the defendants Smith and Brown were the only named defendants and that none of the opposing candidates for co-chairs of the Democratic Town Committee were named as defendants; nor were they ordered to be served by the court. A review of the marshal's return of service in the court's file reveals that defendants Brown and Smith were served on February 18, 2004.
On February 23, 2004, the parties appeared in court pursuant to the court's scheduling of the show cause hearing. The parties, on that date, informed the court that they had resolved the matter and that they had reached a settlement. They additionally informed the court that the action would be withdrawn. The court inquired if the plaintiffs were seeking any relief from the court and was informed that they were not seeking further action by the court. The terms of the settlement were not, however, revealed to the court at the hearing on February 23, 2004.
A review of the evidence submitted at the present hearing reveals that the parties had reached an agreement, wherein, all voters in Ward 15 and Ward 16 eligible to vote in the March 2, 2004 Democratic party primary would receive a letter from the Town Clerk's Office, prior to the primary election, notifying them of the mistaken ballot lever designations. The letter would also notify the voters of the correct ballot lever designations for the Town Committee election. The Town Clerk prepared a first draft of the letter on February 23, 2004 and transmitted the draft copy to the plaintiffs' attorney. On February 25, 2004, the defendants' attorney, by way of fax transmission, notified plaintiffs' counsel that she had not received the plaintiffs' response to this draft copy and urged plaintiffs' counsel to respond, "as time is running short." Defendants' counsel further stated that the letter would not be sent to the voters until the defendants received the releases and withdrawal of action from the plaintiffs, as previously agreed. Defendants' counsel asked plaintiffs' counsel for any proposed changes to the draft letter dated February 23, 2004. Plaintiffs' counsel responded on February 25, 2004, by sending the plaintiffs' draft of the proposed letter to defendants' counsel by fax transmission. On February 26, 2004, defendants' counsel notified plaintiffs' counsel in writing that the plaintiff's draft version of the letter to the voters was unacceptable for various reasons, and that the Town Clerk's Office would proceed to send out letters to the voters, which incorporated some, but not all of the demanded changes requested by the plaintiffs. Defendants' counsel repeated her demand that the plaintiffs deliver their signed releases and a withdrawal of action form to the defendants, in accordance with the settlement agreement of the parties.
Exhibits offered by the plaintiffs at the present hearing establish that on Friday, February 27, 2004, and Saturday, February 28, 2004, the defendants mailed letters to the affected voters in Wards 15 and 16, by use of the United States Postal Service, notifying them of the error in the initial ballot lever designations and setting forth the corrected lever designations. The letter by its terms stated that it "is intended to resolve complaints made by some candidates that those errors could cause confusion among voters." The letter clearly states that several candidates were originally listed on the wrong line, and it clearly sets forth the correct designations for the March 2, 2004, Town Committee election.
The Democratic Party Town Committee primary election was held on March 2, 2004, as scheduled. Each of the named plaintiffs were defeated by large margins ranging from 100 to 165 votes. The election results were certified by the Head Moderator, Jonathan Einhorn on March 2, 2004, and were transmitted to the Election Office at the Secretary of State's Office by fax transmission at 3:20 p.m. on Wednesday, March 3, 2004.
As mentioned herein, the plaintiffs filed their present action on February 13, 2004, requesting that the court enjoin the defendants from changing the previously designated ballot lever positions.
A hearing on the plaintiffs' request for injunctive relief was scheduled for Monday, February 23, 2004, which was eight days before the March 2, 2004, primary date. The plaintiffs' action named the City Clerk Smith and the Deputy City Clerk Brown as defendants. The plaintiffs did not name the opposing candidates as parties; nor were the opposing candidates, the Secretary of State or the State Elections Enforcement Commission served or notified in any manner as to the pending action or the show cause hearing, which was scheduled by the court for February 23, 2004. On February 23, 2004, the date of the hearing to show cause, the court was notified by the parties that they had settled their dispute, and no longer needed the court's assistance.
Thereafter, on March 10, 2004, eight days following the primary election, the plaintiffs filed a "Motion for Injunction" seeking to prohibit the certification of the election results from March 2, 2004. The plaintiffs did not include an order to show cause request in this motion, and the matter, therefore, appeared on the short calendar on March 29, 2004. The court then ordered a hearing for Friday, April 2, 2004, and further ordered that a copy of the plaintiff's writ, summons, complaint, applications for injunctive relief and "supporting memoranda as on file" be served on the successful candidates in the March 2, 2004, primary election, as well as, the Secretary of State and the State Elections Enforcement Commission. The orders of notice by the court were pursuant to the procedural requirements of General Statutes §9-329a, as amended by Public Act 03-241 because on March 16, 2004, the plaintiffs had filed a pleading titled "Challenge to Election Pursuant to Conn. Gen. Stat. §9-329a." This pleading...
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