Markley v. State

313 A.3d 1170

349 Conn. 67

Joe MARKLEY et al.

v.STATE ELECTIONS ENFORCEMENT COMMISSION

(SC 20726)

Supreme Court of Connecticut.

Argued September 13, 2023

Officially Released May 21, 2024

Charles Miller, pro hac vice, with whom were Mario Cerame and, on the brief, Adam J. Tragone, pro hac vice, for the appellants (plaintiffs).

Maura Murphy Osborne, deputy associate attorney general, with whom, on the brief, was William Tong, attorney general, for the appellee (defendant).

Robinson, C. J., and McDonald, Mullins, Ecker and Alexander, Js.

ROBINSON, C. J.

₇₁This appeal presents an issue of first impression under the first amendment to the United States constitution, namely, the extent to which the statutes and regulations governing the public funding of state elections in connection with the Citizens’ Election Program (program), General Statutes § 9-700 et seq., may be applied to preclude publicly funded candidates ₇₂from using their candidate committee funds to pay for campaign advertisements that, as a rhetorical device, invoke the name of a candidate in a different race to refer more broadly to the policies or political party associated with that candidate. The defendant, the State Elections Enforcement Commission (commission), imposed fines on the plaintiffs, Joe Markley and Rob Sampson, who were publicly funded candidates for state legislative office during the 2014 general election cycle, on the ground that they had violated the statutes and regulations governing the program when they utilized their candidate committee funds to pay for communications that criticized then Governor Dannel Malloy, who was seeking reelection to that office in that same election cycle, in the course of promoting their opposition to his policies. The plaintiffs now appeal¹ from the judgment of the trial court upholding the decision of the commission, claiming that the commission’s enforcement of the state election laws in that manner violated their first amendment rights. Although a compelling governmental interest is served by a condition that precludes publicly funded candidates from using program funds to support or oppose candidates in other races, we conclude that the commission violated the plaintiffs’ first amendment rights with respect to the five advertisements at issue in this case because they could reasonably be understood to be something other than an appeal to vote against Governor Malloy. Accordingly, we reverse the judgment of the trial court.

The record reveals the following undisputed facts and procedural history. During the 2014 general election cycle, Markley was an unopposed candidate for state senator from the Sixteenth Senatorial District and registered the candidate committee "Joe Markley for State ₇₃Senate 2014." Sampson, who was an incumbent state representative from the Eightieth General Assembly District, was seeking reelection to that office during the 2014 general election cycle and registered the candidate committee "Sampson for CT." Sampson’s opponent in that race was John "Corky" Mazurek, who is the complainant before the commission in this case. Each of the plaintiffs’ campaign committees applied for and received public funding grants from the program, Markley in the amount of $56,814, and Sampson in the amount of $27,850.

During the 2014 general election cycle, the plaintiffs published five communications or advertisements that are at issue in this appeal. The first communication, ex- hibit 2 before the commission, was a large, double-sided postcard, jointly paid for by the plaintiffs’ respective committees, the back side of which stated that the plaintiffs "are who we need to turn Connecticut around!" In addition to touting the plaintiffs’ work as state legislators on behalf of Southington’s schools, seniors, and veterans, and their opposition to criminal justice reforms and the New Britain "[b]usway [b]oon-doggle," the back of the mailer states that they have (1) "consistently fought" Governor Malloy’s "tax hike," "agenda," and "reckless spending," (2) "tried to restore [c]ommon [s]ense and fiscal responsibility in state government," and (3) "voted against [Governor Malloy’s] budget which resulted in nearly $4 [b]illion in new and increased taxes for Connecticut residents "

The second communication, exhibit 3 before the commission, is a trifold flyer that was jointly funded by and mentions both plaintiffs but focuses largely on Sampson’s legislative accomplishments with respect to the towns of Southington and Wolcott and his endorsements by a variety of organizations. It states that both plaintiffs have fought for fiscally conservative positions and "continue to work to eliminate needless regulations ₇₄and burdensome taxes and fees. Rather than accepting the job and business stifling proposals of Governor Malloy, [the plaintiffs] have pushed for less government and more freedom in an effort to get our economy moving again. … [The plaintiffs] are who we need in Hartford fighting for our community and to keep Governor Malloy and the [m]ajority Democrats in check." The flyer’s reverse side emphasizes that Sampson specifically "has fought Governor Malloy’s ‘Bad for Connecticut Agenda,’ opposing [h]uge [i]ncreases in [g]overnment [s]pending, the [h]ighest [t]ax [i]ncrease in Connecticut [h]istory, the New Britain to Hartford [b]usway, the repeal of the [d]eath [p]enalty, and the [e]arly [r]elease of [v]iolent [c]riminals."

The third communication, exhibit 4 before the commission, is an oversize postcard that features only Sampson and was paid for by Sampson’s committee. It states that "Sampson wants a [n]ew [d]irection and rejects Governor Malloy’s policies," and that "[i]t’s time to change course and STOP Governor Malloy and the majority Democrats’ dangerous agenda!" (Emphasis in original.) Positing that "[w]e need leaders like [Sampson] who know how to say NO," the mailer further states that Sampson "has consistently fought Governor Malloy’s reckless spending and voted against his budget which resulted in nearly $4 [b]illion in new and increased taxes for Connecticut residents!" (Emphasis in original.)

The fourth communication, exhibit 5 before the commission, is an oversize, glossy foldout postcard, which features only Sampson and was paid for by Sampson’s committee. In addition to highlighting Sampson’s fiscal conservatism and organizational endorsements, it states that he "has been a clear and consistent voice for common sense in Hartford, fighting Governor Malloy’s destructive policies of wasteful spending and high taxes." It also highlights some of Mazurek’s positions, ₇₅including votes taken when Mazurek previously served as a state representative, observing that a "vote for [Mazurek] is a vote to continue the reckless policies that are ruining our state" because (1) "[h]is last vote as our [s]tate [r]epresentative was to flip his own vote from no to yes and [to] give an additional $3 million dollars to [Governor] Malloy’s campaign for [g]overnor," (2) "[h]e supported Governor Malloy’s ‘largest tax increase in history’ state budget in 2012 saying ‘[t]he Democrats put forward a very good plan to mitigate the budget deficit,’ " (3) "[h]e supports Governor Malloy’s corporate welfare programs including $400 [million] in taxpayer funds taken from our community and small businesses to give to [United Technologies Corporation] saying ‘Connecticut’s economy is clearly the winner as a result of this legislation,’ " and (4) "[i]n 2010, he voted to balance Connecticut’s state budget by borrowing [$1] billion … piling more debt onto taxpayers and our children."

The fifth communication, exhibit 6 before the commission, is a local newspaper advertisement that was paid for by Sampson’s committee. That advertisement featured a photograph of Sampson and emphasizes his "commonsense leadership" and his work to help "Wolcott receive its fair share of state aid to keep property taxes in check and our schools at their peak." In asking for Wolcott residents’ vote, Sampson stated that he was "proud to have led the fight against the many bad policies put forth by [Governor] Malloy and the Democrats in Hartford."

Mazurek filed a complaint with the commission, alleging that these five communications² violated the statutes and regulations governing campaign finance and ₇₆the program under chapters 155 and 157 of the General Statutes, including General Statutes § 9-601b,³ which defines the term "expenditure," General Statutes § 9-607 (g),⁴ which governs which expenditures are "[p]ermissible," General Statutes (Rev. to 2013) 9-616 (a),⁵ ₇₇which bars candidate committees from making certain contributions, and §§ 9-706-1 and 9-706-2 of the Regulations of Connecticut State Agen cies,⁶ which implement the program, as they had been previously interpreted ₇₈by the commission in Advisory Opinion No, 2014-04 (Advisory Opinion).⁷ In particular, the Advisory Opinion ₇₉considered § 9-706-1 (a) of the regulations, which limits the use of "[a]ll funds in the [candidate committee’s] depository account" to "campaign-related expenditures made to directly further the participating candidate’s nomination for election or election to the office specified in the participating candidate’s affidavit certifying the candidate’s intent to abide by [the program’s] requirements," and § 9-706-2 (b) (8) of the regulations, which provides that those funds may not be used for "[c]ontributions, loans or expenditures to or for the benefit of another candidate, political committee or party committee …." (Emphasis added.) The Advisory Opinion concluded that, in the absence of a statutory exception to the definition of "expenditure," those candidate funds could not be used to make "a communication that is not directly related to the candidate’s own race and that also promotes the defeat of or attacks a candidate [who] is not a direct opponent of the candidate sponsoring the communication, but is in a different race …. " (Emphasis added.)

Following a...