Comptroller v. State Elections Enforcement Comm'n

51 Conn.Supp. 483

4 A.3d 356

JARJURA FOR COMPTROLLER et al.

v.STATE ELECTIONS ENFORCEMENT COMMISSION et al.

Superior Court of Connecticut,Judicial District of Hartford. JARJURA FOR COMPTROLLER et al.

v.STATE ELECTIONS ENFORCEMENT COMMISSION et al. No. CV-10-5034997. Aug. 31, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Carmody & Torrance, New Haven, for the plaintiffs.

Maura Murphy Osborne and Robert W. Clark, assistant attorneys general, and Richard Blumenthal, attorney general, for the defendants.

Koskoff Koskoff & Bieder, P.C., and Daniel E. Livingston, Hartford, for the defendant Lembo 2010.

GRAHAM, J.

IFACTS

This case arises from the 2010 Democratic primary contest for Connecticut state comptroller between Kevin Lembo, the convention endorsed candidate, and Michael J. Jarjura, the mayor of Waterbury. The primary election is scheduled for August 10, 2010. More specifically, this case arises from the approval by the defendant statewide elections enforcement commission (SEEC) of public financing for Lembo's campaign.

Jarjura's candidate committee is a plaintiff in this action, along with Jarjura, and is entitled Jarjura for Comptroller. Lembo created his candidate committee for the office of comptroller, Lembo 2010, on May 20 of this year. It is a defendant in this action, along with the SEEC; Albert P. Lenge, executive director and general counsel of the SEEC; Denise L. Nappier, state treasurer; and Nancy S. Wyman, the current comptroller (state defendants).

Both candidates have elected to participate in the candidate public financing program enacted by Connecticut in 2005, known officially as the Citizens' Election Program (CEP), General Statutes § 9-700 et seq. A candidate for comptroller in a primary qualifies for a grant of $375,000 in public campaign funds if the candidate raises $75,000 in “qualifying contributions” of $100 or less, at least $67,500 of which is from state residents.

On July 11, 2010, Lembo 2010 filed a mandated quarterly filing with the SEEC for the period from the opening of the candidate committee to July 1, 2010, on SEEC form 30. On that form, Lembo 2010 reported that it had raised $24,064. On July 13, 2010, Lembo filed an SEEC form 10, stating his intent to abide by the requirements of the CEP and became a participating candidate in the CEP.

On July 15, 2010, Lembo 2010 filed a second SEEC form 30, reporting that it had raised $51,239 from July 1 to 14, 2010. The aggregate of the funds raised and reported in the Lembo 2010 filings of July 11 and 15, 2010, was $75,303. These filings did not include reports of moneys raised by an exploratory committee established by Lembo, which were contained in an earlier filing by that exploratory committee. On July 15, 2010, Andrew Cascudo, the SEEC elections officer assigned to the comptroller race, told Lembo 2010 that $11,490 raised by the exploratory committee met the definition of “qualifying contributions.” Under General Statutes § 9-704(a)(2)(B), such contributions would be counted toward the $75,000 threshold, with limited exception.

On July 16, 2010, Lembo 2010 filed an SEEC form 15 certification and application for a CEP grant of $375,000 for Lembo's candidacy for comptroller. On that same day, the SEEC received a complaint from Robert Brown, campaign manager of Jarjura for Comptroller, regarding the Lembo 2010 application for a CEP grant. Brown claimed that the exploratory committee contributions could not be credited toward the $75,000 threshold because of certain events that occurred in November, 2009, and April, 2010.

On July 16, 2010, the SEEC instructed Lembo 2010 that it could substitute contributions raised between July 15 and 21, 2010, for contributions submitted in the Lembo 2010 filing of July 15, 2010. This instruction was consistent with the SEEC's policy and practice since it began operating the CEP in 2008. In 2008 and 2010, participating candidates were permitted to supplement applications for CEP grants with information and substitute contributions after the applications were filed with the SEEC. With the exception of candidates who filed applications containing fraudulent information, the SEEC has consistently permitted candidates who have submitted a written certification (SEEC form 15) in good faith to cure deficiencies identified by the SEEC before the SEEC is required to make a decision on the candidate's application. More than 100 candidates have taken advantage of this opportunity since 2008.

On July 18, 2010, the SEEC provided Lembo 2010 with a candidate services unit report, a document routinely provided to candidates by the SEEC and commonly referred to as a candidate report card. The SEEC determined that of the $75,303 in contributions contained in the Lembo 2010 filings on July 11 and 15, 2010, $2963 could not yet be qualified by the SEEC as “qualifying contributions.” The SEEC determined that of that $2963, $1813 could be qualified as “qualifying contributions” with an amendment to disclosures such as replacing address information that contained only a post office box with a street address or providing other backup documentation. Of the remaining $1150, the SEEC determined that $465 could not be cured. As to the remaining $685, the SEEC did not make a determination whether the contribution could be cured with supplemental information.

On Monday, July 19, 2010, Lembo 2010 submitted another SEEC form 30, stating that between July 15 and 18, 2010, it had raised $6480.10 in contributions. Of that $6480.10, the SEEC accepted $5805.10 as “qualifying contributions.” The SEEC did not accept $675 as “qualifying contributions.”

Lembo 2010 opted not to cure the deficiencies in its July 15, 2010 filing because it was informed that, with the July 19 filing, it had met the $75,000 threshold. The aggregate of contributions contained in Lembo 2010's SEEC form 30 filings on July 11, 15 and 19 was $81,783.10. The aggregate of the contributions that were not accepted by the SEEC as “qualifying contributions” from Lembo 2010's July filings was $3638.

That $81,783.10 does not include moneys raised by the exploratory committee created by Lembo. The SEEC did not rule on Brown's complaint because it determined that the exploratory committee's $11,490 of “qualifying contributions” were not necessary to Lembo 2010 meeting the $75,000 threshold. No ruling has been made to this day.

On July 21, 2010, the SEEC found that Lembo 2010 had raised $78,155 ¹ in “qualifying contributions” and met the other criteria for a CEP grant for the primary for the office of comptroller and approved a grant in the amount of $375,000 for Lembo 2010. Jarjura for Comptroller had previously been approved for its grant in the amount of $375,000.

By July 23, 2010, the state had electronically transferred the grant to Lembo 2010. On that day, the plaintiffs filed this action, and a chambers conference was held with counsel for all parties present. The essence of the verified complaint is that the SEEC improperly approved Lembo 2010 for the CEP, despite Lembo 2010 not meeting the $75,000 threshold by the application deadline of July 16. The plaintiffs claim to be adversely affected by that decision. They ask for an injunction preventing the state defendants from transferring the grant to Lembo 2010, which is moot because the grant proceeds are already in the possession of Lembo 2010. They also ask for an injunction preventing Lembo 2010 from spending the grant proceeds. Lembo 2010 agreed to spend no more than $30,000 of the $375,000 prior to 1 p.m. on Tuesday, July 27, 2010. ² A hearing was scheduled for Monday, July 26, 2010, at 2 p.m. on the plaintiffs' temporary injunction request. Prior to that hearing, the parties exchanged offers of proof and briefs, pursuant to court order.

Lembo 2010 also filed a motion to dismiss-motion to strike, challenging the plaintiffs' standing and cause of action. Without objection, the motion to dismiss was combined with the hearing on the motion for a temporary injunction. The motion to dismiss is denied for reasons set forth in the discussion of standing in this memorandum. ³

The hearing on July 26 recessed at 6 p.m. and continued the next morning. It ended after 1:15 p.m. on July 27. At the hearing, the court received twelve exhibits, ranging in length from 130 pages to one page. Each party presented witnesses, those being Jarjura, Richard Baltimore (deputy campaign manager of Gerry Garcia for secretary of the state), Beth Rotman (director of the CEP), Jacqueline Kozin (campaign manager of Lembo 2010) and Jonathan Pelto (communications adviser to Lembo 2010). The court heard closing argument and entered an order denying the temporary injunction before 5 p.m. for reasons set forth in this memorandum of decision.

IIANALYSIS

AStanding

The motion to dismiss, raising a claim of lack of standing on the part of the plaintiffs, must be addressed first. In its motion to dismiss, Lembo 2010 argues that the plaintiffs lack standing to bring this action because the CEP creates no cause of action for challenging an opponent's receipt of a grant. “The issue of standing implicates subject matter jurisdiction ....” (Internal quotation marks omitted.) May v. Coffey, 291 Conn. at 106, 113, 967 A.2d 495 (2009). “[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.” (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003). “The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings ....” Peters v. Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005). “It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.” (Internal quotation marks omitted.) Massey v. Branford, ...