Opinion
Nos. CV 07-4022915 S, CV 07-4022916 S
November 29, 2007
MEMORANDUM OF DECISION
Procedural Background
On November 16, 2007, the petitioners, Christopher Caruso and Toyka Simmons-Cook, commenced separate actions against the city of Bridgeport and numerous city officials, pursuant to General Statutes §§ 9-325 and 9-328. Petitioners are challenging the results of the November 6, 2007 general election for the mayoral office in the city of Bridgeport and the 135th district's city council position. Neither petitioner was a candidate in the general election, each having lost the democratic primary election held on September 11, 2007. The petitioners also seek to certify two questions of law to the Supreme Court.
Both petitioners filed a claim contesting the results of the primary on September 25, 2007. After a full hearing on the merits, this court denied both claims. The petitioners subsequently filed appeals which are currently pending review by the Supreme Court.
On November 21, 2007, the respondents filed a joint motion to dismiss for lack of subject matter jurisdiction on the following three grounds: (1) the petitioners lack standing to bring the present action; (2) the petitioners failed to file this action in a timely manner; and (3) the petitioners' claims fail for lack of ripeness. The respondents also argue that the prior pending action doctrine applies. The petitioners filed a joint reply memorandum on November 28, 2007. The court will address the claims of both petitioners in this memorandum.
Discussion
"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." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006). "The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process." Other permissible grounds include the applicability of the prior pending action doctrine. See Cumberland Farms, Inc. v. Groton, 247 Conn. 196, 216, 719 A.2d 465 (1998).
Petitioners' Lack of Standing
In their memorandum of law in support of the motion to dismiss, the respondents argue that the petitioners lack standing to assert a claim under § 9-328 because they were not candidates in the November 6, 2007 general election and do not claim to be aggrieved by a ruling of an election official or a mistake in the count of the votes in connection with that election. The respondents contend that as a result of the petitioners' lack of standing, this court lacks subject matter jurisdiction. The respondents also maintain that the petitioners' new attempt to invoke this court's jurisdiction by way of raising claims relating to the earlier primary election held on September 11, 2007 is also improper, and does not provide this court with jurisdiction to hear the claim. In response, the petitioners argue that they have standing to assert a claim under § 9-328 because the validity of the general election presupposes that the correct candidates were selected at the primary election, and, therefore, erroneous rulings arising from the primary are "clearly connected to the general election and its accuracy."
"If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause . . . Subject matter jurisdiction [implicates] the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . ." Fort Trumbull Conservancy, LLC v. New London, 282 Conn. 791, 802, 925 A.2d 292 (2007). "Because a party must have standing to invoke the subject matter jurisdiction of the court, it is appropriate for a court to evaluate whether a party has made a `colorable claim' of injury when a motion to dismiss pursuant to Practice Book § 10-31 . . . is made." Gill v. Diorio, 51 Conn.App. 140, 145, 720 A.2d 526 (1998). "`[W]here a statute . . . sets prerequisites to suit by a particular plaintiff, a plaintiff not meeting the statutory criteria lacks standing and the court is said to lack jurisdiction over the case.' Mystic Marine Life Aquarium, Inc. v. Gill, 175 Conn. 483, 492-93, 400 A.2d 726 (1978)." Gill v. Diorio, 51 Conn.App. 140, 145, 720 A.2d 526 (1998). "Standing concerns the question whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute . . ." (Internal quotation marks omitted.) Gill v. Diorio, supra, 51 Conn.App. 145.
Looking to General Statutes § 9-328, the statute asserted as the basis for the petitioner's claims, it is noted that there are three distinct ways for an elector or candidate to establish aggrievement. "Any elector or candidate claiming to have been aggrieved by any ruling of any election official in connection with an election for any municipal office . . . or any elector or candidate claiming that there has been a mistake in the count of votes cast for any such office at such election . . . or any candidate in such an election . . . claiming that he is aggrieved by a violation of any provision of sections 9-355, 9-357 to 9-361, inclusive, 9-364, 9-364a or 9-365 in the casting of absentee ballots at such election . . . may bring a complaint to any judge of the Superior Court for relief therefrom." (Emphasis added.) General Statutes § 9-328.
Regarding the first basis of aggrievement, the petitioners allege that election officials made `erroneous rulings' during the September 11, 2007 primary by their violations of the Connecticut election statutes that might change the results of that primary, and that as a consequence, these violations by election officials are erroneous rulings in connection with the general election of November 6, 2007, since such earlier violations might have changed the results of the general election. While on its face, this allegation is couched in the language of § 9-328, it does not sufficiently establish aggrievement. In interpreting the scope of each section, it is important to analyze the statutes in context. Title IX of the General Statutes provides two different means to contest the results of a municipal election. Section 9-328 relates to contests of the results of a general election, whereas § 9-329a relates to contests of a primary election. Here, the petitioners attempt to establish aggrievement under the general election statute by asserting earlier rulings of an election official during a primary. However, if the legislature intended for a party to be able to use the actions of election officials during a primary as grounds to later contest the results of a general election under § 9-328, it would not have set forth a separate mechanism for primary challenges pursuant to § 9-329a. This conclusion is bolstered by the very limited time frame to bring an action under § 9-329a.
If this court were to allow the petitioners' claims to go forward, it would essentially grant them two bites of the apple by allowing a claim to first be brought under § 9-329a after the primary, and then allow those same alleged erroneous rulings to support a general election challenge under § 9-328. Furthermore, it could conceivably allow a party that failed to file a timely primary claim under § 9-329a to get a second chance under § 9-328, thereby rendering the strict fourteen-day limitations period moot. Overall, petitioners' argument that § 9-328 should not be read as limiting claims to those arising in connection with the general election misconstrues the purpose of the statutory scheme set forth in Title IX. This court is unwilling to adopt petitioners' rationale.
Additionally, this court notes that even if it were to interpret the complaint as alleging aggrievement by the decision of the election officials to hold the general election despite the allegedly improper primary, this still does not constitute aggrievement under § 9-328, because a petitioner cannot be aggrieved by an election official's ruling which is in conformity with the law. See Scheyd v. Bezrucik, 205 Conn. 495, 503, 535 A.2d 793 (1987). As per this court's ruling on October 24, 2007, the results of the primary were valid. Unless the Supreme Court overrules this decision, the court's holding is controlling. An election official would not have authority to ignore this court's finding that respondents Bill Finch and Richard Bonney were the proper party candidates in the general election as a result of winning the primary. Thus, the petitioners are not aggrieved by a ruling of an election official, as required to recover under § 9-328.
The petitioners also claim to be aggrieved by a mistake in the count of the votes in the general election, since respondents Bill Finch and Richard Bonney were not properly elected in the democratic primary; therefore, any votes counted for these candidates in the general election constitute a mistake. This allegation also misconstrues the basis for a claim under § 9-328. As defined by Merriam Webster Dictionary, a mistake is "a wrong judgment." Thus, if a vote was cast for candidate A, but counted for candidate B, this would constitute a mistake. Here, the petitioners allege that any vote counted at the general election in favor of the respective winners of the primary was a mistake because they were not the proper democratic candidates due to the alleged erroneous rulings made during the primary. This, however, is not a mistake in the count of the votes; rather, it is another attempt to bring the allegations relating to the primary before the court for the second time.
The petitioners have failed to establish that they have standing to assert their claims. Section 9-328 sets forth three methods by which a party can claim aggrievement. Here, neither petition alleges any ruling by an election official or a mistake in the count of the votes as it relates to the general election held on November 6, 2007. Furthermore, they cannot, and do not allege a violation of one of the enumerated sections set forth in § 9-328. As a result of the petitioners' lack of standing, the court does not have subject matter jurisdiction.
In their opposition to the motion to dismiss, the petitioners ask the court to note that they corresponded with the Bridgeport Registrar of Voters and the Connecticut Secretary of State, requesting that the results of the general election not be certified at this time. The petitioners argue that the denial of this request constitutes a ruling of an election official in connection with the general election. This allegation does not appear in either petition, and a memorandum in opposition to a motion to dismiss is an inappropriate vehicle to amend a petition.
Unlike a ruling of an election official or a mistake in the count of votes, which can be alleged by either a candidate or an elector, the third ground of aggrievement can only be alleged by a candidate, and, therefore is inapplicable here as neither petitioner was a candidate in the general election. See General Statutes § 9-328.
Timeliness of this Action
The respondents also move to dismiss this action on the ground that the court does not have subject matter jurisdiction as a result of the petitioners' failure to timely file this statutory claim. It is the respondents' contention that the petitioners' complaints, although brought pursuant to § 9-328, actually contest the propriety of rulings of election officials made during the primary held on September 11, 2007, and, therefore, have been filed outside of the statutory filing period set forth under the primary election statute, § 9-329a. In response, petitioners argue that the petitions were filed within the proper time period after the general election, and maintain that they are permitted to challenge rulings that occurred prior to the general election as long as the complaint is filed in a timely fashion.
Section 9-329a provides in relevant part: "Any . . . elector or candidate aggrieved by a ruling of an election official in connection with any primary . . . may bring his complaint to any judge of the Superior Court for appropriate action . . . If such complaint is made subsequent to such primary it shall be brought, within fourteen days after such primary, to any judge of the Superior Court." (Emphasis added.) Similarly, § 9-328 states: "Any elector or candidate claiming to have been aggrieved by any ruling of any election official in connection with an election for any municipal office . . . may bring a complaint to any judge of the Superior Court for relief therefrom . . . If such complaint is made subsequent to such election . . . it shall be brought within fourteen days of such election." (Emphasis added.)
Both §§ 9-328 and 9-329a create statutory remedies that have no common-law counterpart; therefore, the text of each statute is strictly construed. See Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 379-80, 698 A.2d 859 (1997). "Where a specific time limitation is contained within a statute that create[s] a right of action that did not exist at common law, then the remedy exist only during the prescribed period and not thereafter . . . In such cases, the time limitation is not to be treated as an ordinary statute of limitations, but rather is a limitation on the liability itself . . ." (Internal quotation marks omitted.) Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 766-67, 628 A.2d 1303 (1993).
In the present case, the petitioners claim aggrievement under §§ 9-328 and 9-329a and seek certification of questions of law under § 9-325. Regarding § 9-329a, the complaint was filed on November 16, 2007, well beyond the fourteen-day statutory period to bring a claim set forth under that section and is therefore untimely. Turning next to § 9-328, while a proper claim under that statute would be considered as timely filed on November 16, 2007, the petitioners have failed to establish a colorable claim. Instead, the petitioners have attempted to cloak their allegations of improprieties during the primary under the guise of improprieties during the general election, thereby bringing the allegations pertaining to the primary election within the fourteen-day statutory period for general election contests. Interpreting the allegations according to their substance, rather than the statutory label chosen by the petitioners, this court finds that petitioners are, in essence, asserting the same claims. This court is unwilling to expand the scope of § 9-329a to allow the petitioners a second opportunity to relitigate the primary.
Ripeness of Claim
The third ground proffered by the respondents in support of the motion to dismiss is a lack of justiciability on ripeness grounds. In support of this ground for dismissal, the respondents refer to a statement made by the petitioners' counsel at oral argument, when counsel stated he would withdraw the actions if the Supreme Court rules against his clients on the pending appeal. Additionally, it is the respondents' contention that the adjudication of this claim would not result in practical relief to the petitioners, and, therefore, this court lacks subject matter jurisdiction and the claim should be dismissed. In response, the petitioners argue that it is proper to file these petitions to preserve the relevance of their appeals on the underlying primaries. They contend that dismissing these pending actions would render the Supreme Court appeals moot.
"The justiciability of a claim is related to its ripeness. The basic rationale [of the ripeness doctrine] is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements . . . The problem is best seen in a twofold aspect, requiring [the court] to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration . . . [W]e will decide a case only when it presents a live controversy which can be resolved by relief that is within the court's power to grant." (Internal quotation marks omitted.) Forcier v. Sunnydale, 84 Conn.App. 858, 865, 856 A.2d 416 (2004). "[T]he machinery of the courts should not be put into operation where there may be no need to do so because no one's interest may be harmed." CMB Capital Appreciations, LLC. v. North Haven Planning Zoning Commision, Superior Court, judicial district of New Haven, Docket No. CV 07 4025243 (July 18, 2007, Corradino, J.).
The court finds that an actual controversy does not exist at this time. The petitioners have brought these claims alleging that improprieties during the primary affected the results of the general election; however, this court has already ruled on the underlying allegations relating to the primary election and held that the petitioners were not entitled to relief under § 9-329a. See Caruso v. Bridgeport, Superior Court, judicial district of Fairfield, Docket No. CV 07 4022314 (October 24, 2007, Blawie, J.); Simmons-Cook v. Bridgeport, judicial district of Fairfield, Docket No. CV 07 44022308 (October 24, 2007, Blawie, J.). Unless the Supreme Court overrules it, this court's holding and the results of the primary itself remain valid and applicable. The current claims relating to the general election cannot be interpreted independently, as they are built upon a foundation of alleged improprieties during the primary. Therefore, in order for the current claims to proceed on the merits, this court's underlying decisions must be reversed and remanded by the Supreme Court. By bringing their respective claims at this time, the petitioners are essentially asking the court to preemptively assume that the Supreme Court will reverse the underlying decision, and proceed to evaluate their claims under § 9-328 before the claims actually become ripe for adjudication. This is the type of preemptive litigation that the ripeness doctrine was designed to avoid. An actual controversy does not exist at the current time, and until the Supreme Court hears the primary challenge, this claim is nonjusticiable.
At the hearing on this motion, counsel for the petitioners argued that these claims are necessary to preserve his clients' rights to contest the results of the general election if the Supreme Court finds, on review, that this court erred in denying the petitioners' prayers for relief relating to the primary. Regarding this argument, the court notes that when an underlying action is pending appeal, "a party cannot litigate in a second action matters already concluded in a prior one. If the judgment appealed from is sustained, there is an end to the matter. If error is found and a new trial ordered, the party has his opportunity to retry the issues in the first action." Salem Park, Inc. v. Salem, 149 Conn. 141, 144, 176 A.2d 571 (1961). In sum, this action is not necessary to protect petitioners' rights if the Supreme Court finds in their favor. Furthermore, if the Supreme Court upholds the decision of this court in denying the petitioners their prayer for relief, then these actions would be moot.
Prior Pending Action Doctrine
The respondents also argue that even if the court finds that it has subject matter jurisdiction to hear petitioners' claim, the claims must still be dismissed in accordance with the prior pending action doctrine. It is the respondents' contention that the allegations of the current petitions mirror the previously litigated claims now on appeal surrounding the primary election. As this case is pending review at the Supreme Court, this case arguably should be dismissed as a prior pending action.
"The prior pending action doctrine permits the court to dismiss a second action that alleges claims already pending before the court. The pendency of a prior suit of the same character, between the same parties, brought to obtain the same end or object, is, at common law, good cause for abatement." (Internal quotation marks omitted.) Hunting v. Chambers, 99 Conn.App. 664, 667, 916 A.2d 56, cert. denied, 283 Conn. 901, 926 A.2d 669 (2007). However, this doctrine only applies to prior cases pending at the trial level, not to pending appeals. See CT Page 20432 Chomko v. Patmon, 20 Conn.App. 159, 161, 565 A.2d 250 (1989) (a pending appeal is not a prior pending action within the meaning of the doctrine). Therefore, while the respondents are correct in their assertion that the current complaint contains marked similarities with the previously litigated claim pending Supreme Court review, the prior pending action doctrine, in itself, does not constitute valid grounds to dismiss the petitions.
Conclusion
Petitioners make reference to the "unique" and "unprecedented procedural posture" of this case as grounds for this court to defer its decision on the pending action until the Supreme Court has ruled on the primary challenge. This court could not agree more with petitioners' assertion in their brief that "the outcome of that appeal [to the Supreme Court of this court's ruling on the primary challenge] will determine the course of this litigation." These statements show that this general election challenge is yoked to the pending appeal of the earlier primary challenge, but it is a marriage founded on neither statutory nor common-law principles. There is simply no legal basis for the new petitions. Therefore, this court does not share petitioners' belief that to "dismiss these complaints unmindful of this context as respondents urge would do a grave injustice."
No one can quarrel with the concept of justice, but this court declines petitioners' invitation "not to mechanically apply precedent and doctrine on jurisdiction . . ." While a precise definition of what constitutes a "mechanical" application would prove elusive, it is clear that the issue of whether or not petitioners are entitled to any legal relief is now in the hands of the Supreme Court. It is beyond the power of any decision by this court to add or detract from that. The law provides petitioners with an adequate remedy that is not buttressed by filings that lack a legal foundation.
Accordingly, it is ORDERED BY THE COURT that respondents' motions to dismiss are hereby GRANTED.