Opinion
No. CV-03-0406514 S
October 30, 2003
MEMORANDUM OF DECISION RE MOTION TO DISMISS
Before the court is defendant's motion to dismiss plaintiffs' request for an order of mandamus. The plaintiff is a minor political party. The defendant is the town clerk for the City of Bridgeport.
Connecticut General Statutes section 52-485 provides:
(a) The Superior Court may issue a writ of mandamus in any case in which a writ of mandamus may by law be granted, and may proceed therein and render judgment according to rules made by the judges of the Superior Court or, in default thereof, according to the course of the common law.
(b) When any writ of mandamus has been issued, requiring the party to whom it is directed to make a return, if the party fails to do so, the court may issue a peremptory mandamus.
(c) Any common law requirement that the state's attorney participate in any way in an action for mandamus is abolished.
The procedural history in this matter is clear. On September 10, 2003, on the last day available by statute, the plaintiff Reform Party, through Kenneth Jones and Robert Pavlik, attempted to file an original certificate of endorsement for the position of mayor in the Bridgeport municipal election. The certificate of endorsement was delivered to the Office of the Secretary of State but was never filed in a timely manner with the defendant town clerk.
Connecticut General Statutes 9-452 provides in relevant part:
All minor parties nominating candidates for any elective office shall make such nominations and certify and file a list of such nominations, as required by this section, not later than the fifty-fifth day prior to the day of the election at which such candidates are to be voted for.
A list of nominees in printed or typewritten form shall be certified by the presiding officer of the committee, meeting or other authority making such nomination and shall be filed by such presiding officer with the Secretary of the State, in the case of state or district office or with the clerk of the municipality, in the case of municipal office, not later than the fifty-fifth day prior to the day of the election.
This court also notes that the Reform party failed to provide proper legal notification of the endorsement meeting. Connecticut General Statute section 9-452a provides:
Not later than five days before a minor party holds a party meeting to nominate a candidate for public office, the presiding officer of such meeting shall give written notice of the date, time, location and purpose of the meeting to, in the case of a municipal office, the town clerk of the municipality served by such office, or in the case of a state office or district office, the Secretary of the State.
On September 30, 2003 the plaintiff filed the above-referenced complaint wherein the plaintiff alleged that the certificate of endorsement "was received by the Bridgeport Town Clerk in a timely manner . . ." Alleging the defendant had a mandatory duty to accept the endorsement, the plaintiff requested a writ of mandamus. The plaintiff served the defendant with the complaint. The complaint did not identify any return date. The plaintiff never served the defendant with a writ of summons. To the contrary, after filing the instant complaint, the plaintiff filed an order to show cause why the request "for an order of mandamus should not be granted."
The issue before this court is whether the plaintiffs have established their right to seek an order of mandamus.
This court must first address the relief sought in this case. "Mandamus is an extraordinary remedy, available in limited circumstances for limited purposes . . . It is fundamental that the issuance of the writ rests in the discretion of the court, not an arbitrary discretion exercised as a result of caprice but a sound discretion exercised in accordance with recognized principles of law . . . That discretion will be exercised in favor of issuing the writ only where the plaintiff has a clear legal right to have done that which he seeks . . . The writ is proper only when (1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy . . . The writ of mandamus is designed to enforce a plain positive duty, upon the relation of one who has a clear legal right to have it performed, and where there is no other adequate legal remedy . . . If a public official or public agency has a duty to perform a particular act and fails in the discharge of that duty, a writ of mandamus is the proper remedy for compelling performance of the act." Grasso v. Zoning Board of Appeals, 69 Conn. App. 230, 234-35, 794 A.2d 1016 (2002) (Internal quotation marks omitted.)
Due to the nature of the underlying complaint, the court reserved decision on the motion to dismiss. See Strong v. Toth, CV93-0309146S, 10 Conn. L. Rptr. 533 (Judicial District of Fairfield at Bridgeport, December 10, 1993) (Vertefeuille, J.)
The plaintiff must establish that there is a clear legal right to have a duty performed. "Even [if] the plaintiff has a legal right to the matter sought, the writ will not issue if that right be nothing more than a naked right. In addition to a bare legal right, he must have a proper interest in, and a proper purpose to be served by, the doing of the act sought to be ordered . . . If the right sought to be enforced is or has become a mere abstract right, the enforcement of which will be of no substantial or practical benefit to the petitioner, the writ will not issue though otherwise the applicant would be entitled to it." Golden Hill Paugussett Tribe of Indians v. Weicker, 51 Conn. App. 552, 555, 723 A.2d 348 (1999).
In the present case the plaintiffs rely on the state election laws. Those laws are a binding part of a statewide statutory scheme. Despite their Herculean efforts to secure a proper endorsement, the plaintiff failed to produce evidence that it met mandatory time constraints. The plaintiff argues that this is a minor deviation, "unfortunate" but not a willful violation. Allowing political parties to ignore those carefully crafted rules could, in extreme cases, result in acceptable imborsation.
But the court need not address the merits of the request for order of mandamus insofar as this matter is controlled by the Connecticut Appellate Court decision in Marciano v. Piel, 22 Conn. App. 627, 579 A.2d 539 (1990). In that case the appellate court noted "An action for mandamus is a lawsuit like any other lawsuit. Practice Book [23-46] requires that a mandamus action commence with service of a writ and complaint as in other civil actions, and Practice Book [23-49] . . . provides for the filing of the full panoply of pleadings available in any other civil action until the issues are joined. In addition, case law has long dictated that the general rules of pleading apply in a mandamus proceeding." (citations omitted; internal quotations omitted) Marciano, 22 Conn. App. at 628-29.
The Marciano court noted that there are narrow exceptions to the application of the practice rules in mandamus proceedings, available in situations "where an application for an order [in the nature of mandamus] is made in aid of a pending action, the extent to which and the time in which the respondent may plead shall be as directed by the court. This partial relaxation of the pleading rules is clearly not applicable in the present case where there is neither an allegation nor a finding that the proceeding is in aid of a pending action." (citations omitted; internal quotations omitted) Marciano, 22 Conn. App. at 629-30.
Connecticut Practice Book Section 23-48 provides:
The plaintiff may attach to the complaint or subsequently file a motion under oath for a temporary order of mandamus to be effective until the final disposition of the cause. Such a motion shall be addressed to the court to which the action is returnable. The judicial authority may, if it appears upon hearing that the plaintiff will otherwise suffer irreparable injury, forthwith issue such an order or it may issue a rule to show cause why it should not be issued; but no such temporary order shall issue in any case, except where the state's attorney is the plaintiff, until the plaintiff has given to the opposing party a bond with surety, approved by the judicial authority, that the plaintiff will answer all damages should the plaintiff fail to prosecute the action to effect, unless the judicial authority shall find that the giving of such bond is unnecessary. Any party may at any time make a motion to the court that any such temporary order be dissolved.
As in the Marciano matter, the plaintiff in this case cannot make self-serving statements that further pleadings are unnecessary. The plaintiff's opinion is irrelevant. Nor is the fact that this case involves an imminent election dispositive. Contrary to its representations at oral argument, the plaintiff could have filed an action pursuant to Connecticut General Statutes 9-328. It has done so in the past. See Reform Party Of Connecticut v. Bysiewicz, 254 Conn. 789, 760 A.2d 1257 (2000).
Connecticut General Statutes 9-328 provides in relevant part:
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 a primary for justice of the peace, 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 primary, or any candidate in such an election or primary claiming that he is aggrieved . . . may bring a complaint to any judge of the Superior Court for relief therefrom.
For the above reasons, defendant's motion to dismiss is granted.
DEWEY, J.