S.C. 20216
JIM FEEHAN

SUPREME COURT

v.

STATE OF CONNECTICUT

RICK MARCONE, ET AL.

FEBRUARY 11, 2019

MOTION FOR REARGUMENT AND/OR RECONSIDERATION
"[The courts are] legally trained and I would suggest probably far more
disciplined as a result. They are not political. They're impartial. And they are
distant from the decisions that they're making. None of those things apply to us.
We are a body that's valued for being passionate and sometimes parochial. We
are a political body elected on two year cycles. We organize ourselves by
political party..."
Representative Gregory Haddad (D), Committee on Contested Elections Meeting (2/1/19)
(available at https://ct-n.com/ondemand.asp?1D=15977 at 17:00) (explaining why, despite the
established and undisputed facts, Democrats still refuse to call for a new election contrary to
Connecticut case law requiring one).
Pursuant to Practice Book §§ 60-2 and 71-5, the plaintiff-appellant, Jim Feehan, moves
this Court for reargument and/or reconsideration. In its January 30, 2019 slip opinion, the
Court stated that, although it was staying its hand, judicial intervention in this legislative
election dispute would be proper if the House Committee were to violate the plaintiff's
constitutional rights. Feehan v. Marcone, at p. 26, n.27. In light of the House Committee's
proceedings, which violated the constitutional right to due process, and the Committee's
report, which violated the constitutional right to equal protection, judicial intervention is needed.
A four member bipartisan House Committee conducted an investigation that resulted in
a unanimous finding that 75 people were given the wrong ballots and denied the right to vote
in an election decided by 13 votes.' Given that finding, the next step should have been

1 The members were

Representative Michael D'Agostino (D), Representative Gregory Haddad
(D), Representative Vincent Candelora (R), and Representative Jason Perillo (R). The House
Committee's report is appended to this motion.

 straightforward — a new election. Nonetheless, after the investigation was completed, the two
Democrats on the Committee refused to call for a new election, without regard to deprivation
of the constitutional rights of due process, equal protection, and political participation. The two
Republican members applied and followed the settled Connecticut case law and noted that,
since the allegations in the Complaint were confirmed, a new election must be held. The
Democrats' actions violated the constitutional right to due process by (a) failing to provide
adequate (or any) notice that Connecticut case law would be disregarded and substituted with
a new and impossible burden requiring proof of how those 75 voters would have voted and (b)
creating an impossible burden that would require violating voter secrecy laws. The Democrats
further violated the right to equal protection because, if Feehan were a candidate for any other
office in the State, he would have been received a new and fair election.
The facts underlying this dispute were clearly established in the proceedings before the
House Committee. Once those facts were established, this Court expected that the members
of the House would honor their oaths and hold a new election. They failed to do so. The
constitutional rights of Feehan and of the voters of the 120th Assembly District are now
dependent on this Court honoring its obligation to protect those rights. See Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 163-164 (1803) (every right must have a remedy).
I.

BRIEF HISTORY OF THE CASE
On November 6, 2018, 76 voters2 were denied the right to vote for their state

representative in the 120th Assembly District, and the candidates' vote totals were separated
by 13 votes. On November 15, 2018, Feehan filed this case seeking a new and fair election.
On November 30, 2018, the trial court (BeIlls, J.) agreed that, if the allegations set forth in
Feehan's complaint were true, there was a high likelihood of success on the merits of his claim
2

The complaint

alleged that 76 voters were given the wrong ballots. The Committee members
found that 75 people were given the wrong ballots.
2

 (i.e. that a new election was required). T.11/30/18 at 20-21 ("[G]iven the serious allegations
with respect to the incorrect ballots distributed during the election, the number of voters who
were deprived of their constitutional rights to vote, and the margin by which the plaintiff lost the
election, the plaintiff has demonstrated that he is likely to prevail on the merits of his
underlying claim.") However, the trial court concluded that it was for the House to hear
Feehan's claim. T.11/30/18 at 17-18. The court granted Feehan's request to enjoin the state
defendants from certifying the election and from declaring a winner. T.11/30/18 at 21. The
court granted Young's motion to dismiss the plaintiff's request for a new election, concluding
that the Feehan's remedy was before the House of Representatives. T.11/30/18 at 17-18.
On December 7, 2018, the Chief Justice granted General Statutes § 52-265a
applications for this expedited public interest appeal. The Court scheduled oral argument for
December 21, 2018. At the conclusion of argument, this Court issued the following order:
After a hearing and based on the record and claims before the Court, it is hereby
ordered that the judgment of the trial court is affirmed insofar as it lacks
jurisdiction at this time. In accordance with this determination, it is further
ordered that the trial court's injunction is vacated. A written decision will follow.
(Emphasis added.) Supreme Court Order, S.C. 20216, 20217, 20218 (12/21/19).
On January 31, 2019, this Court released its written decision. In that decision, this Court
noted its trust that a new election would be held if the factual allegations were proven:
We are, however, cognizant of the seriousness of the plaintiffs allegations in this
case, insofar as the alleged distribution of the wrong ballots could have deprived
numerous electors of their right to cast a vote for their state representative, and
that the margin was small enough that the alleged error might have affected the
outcome of the election. Given the seriousness of those claims, and its exclusive
jurisdiction under the elections clause, we must presume that the members of
the General Assembly will carry out their duties with scrupulous attention to the
laws under which they serve...
See Feehan v. Marcone, at 25. The Court further noted that, although it was staying its hand,
it had the authority to intervene if the House Committee's actions violated the constitution,
3

 such as the right to due process. See id. at p. 26, n.27.
II.

SPECIFIC FACTS RELIED UPON
The House of Representatives opened its session on January 9, 2019. The House

adopted House Resolution 4, which raised a Committee on Contested Elections.3 On January
11, 2019, the Committee convened and, at its request, Feehan filed an Election Challenge
Complaint. The allegations in the Complaint were straightforward and the final paragraph set
forth the controlling standard based established Connecticut case law:
Where a sufficient number of voters are given the wrong ballots so as to call into
question the reliability of the election, Connecticut law requires that a new
election be held. See Exhibit 10 (Rutkowski v. Marrocco, 2013 WL 6916610
(Conn. Super. Ct. 2013) (Sheridan, J.) (applying standard set by Supreme Court
in Bortner v. Town of Woodbridge, 250 Conn. 241, 259 (1999) and ordering a
new election where 17 voters received the wrong ballots in an election decided
by 3 votes).
Election Challenge Complaint, par. 23.4 Nothing was filed in response to Feehan's complaint
and there was no controversy over the standard.5
On January 11, 2019, the Committee discussed the procedure it would implement for its
investigation and report. The Committee sought "suggestions" from the candidates as to
witnesses it should call. But, as made clear in House Resolution 4, it was the Committee and,
specifically the Chair of the Committee, who was authorized to call witnesses. The Committee
3

House Resolution 4 states: "That the committee on contested elections, appointed pursuant
to Rule 19 of the House Rules, report to the clerk of the House, on or before the close of
business on February 4, 2019; that the Speaker of the House appoint the chairperson of the
committee; that the chairperson of the committee have the power to compel the attendance
and testimony of witnesses by subpoena, require the production of any necessary records,
books, papers or other documents, and to administer oaths to witnesses before the committee;
and that the joint committee on legislative management provide to the committee on contested
elections such staff and facilities, including administrative personnel, supplies and equipment,
that the committee on contested elections may require to discharge its duties."'
4
All filings and transcripts of proceedings before the Committee are available at:
https://www.cga.ct.gov/gae/taskforce.asp?TF=20190109_Contested Elections Committee
5
The Chairman (D'Agostino) expressly recognized Connecticut case law and the Bortner
standard at the start of the Committee's proceedings. See 1/11/19 Committee Meeting.
4

 held hearings to investigate the allegations in the Complaint on January 24th and 25th. It
subpoenaed and heard testimony from witnesses who confirmed the facts alleged in the
Complaint as well as the accuracy of the exhibits submitted in support of those allegations
(Feehan's Exhibits 1-6). The most significant fact conclusively established was this — 75 voters
in the 120th Assembly District were not given ballots listing the candidates for their state
representative and the margin between the candidates was 13 votes.
On February 1st, the Committee discussed preparation of their report. Faced with the
now established fact that 75 people were given the wrong ballot, the Democratic members
changed the standard required for a new election and imposed a new and impossible burden
of proof on Feehan, which did not exist when the proceedings started. On February 4th, the
Committee issued its report. The members agreed that the facts alleged in the Complaint were
proven. Committee Report p. 1-9. However, the Democrats imposed a new burden, that was
not set forth at the beginning of the proceedings, requiring Feehan to prove how many of the
75 voters who received the wrong ballot would have voted for Feehan. After declaring this new
burden of proof, the Democrats proclaimed that Feehan had failed to meet this burden and
that the Complaint should be dismissed. Committee Report p. 15-19.
The Republican members noted that, based on the established facts, settled
Connecticut law mandated a new election and that the Democrats' new burden of proof had
been expressly rejected by this Court:
[W]e bind ourselves to the same judicial precedents and principle of stare
decisis as we would were we the Judicial Branch. Consideration of this matter by
the House is merely a change in forum, not a change in law, standard, or
applicable precedent. The standard of review laid out by the Connecticut
Supreme Court in election disputes such as these is found in Bortner v. Town of
Woodbridge, 250 Conn. 241 (1999). In order to overturn the results of an
election and order a new election the following must be found:
(1) There were substantial errors in the rulings of an election official or officials,
or substantial mistakes in the count of the votes; and
5

 (2) As a result of those errors or mistakes, the reliability of the result of the
election is seriously in doubt.
We further note that Supreme Court precedent established by Bortner, further
affirmed and amplified by Bauer v. Souto, 277 Conn. 829 (2006), explicitly
rejects the notion that a challenger must establish that, but for the irregularities,
he would have prevailed in the election.
***

As the Bortner standard has been satisfied, we see no other option than for the
House of Representatives to order a new election. We do not take this step
lightly, and are aware of the judicial and legislative history counseling caution
before exercising its power to vacate election results. But similar to the Supreme
Court in Bauer, given the facts properly found in the challenge before us, we
have no other reasonable choice but to do so.
Although we are aware that a new election is really a different election, we follow
the Supreme Court's guidance in Bauer. In Bauer, the Court ruled that the new
election should attempt to "minimize, rather than to maximize, the differences
between the first and new election. Put another way, the new election should be
the result of an effort to approximate, as closely as is reasonably possible, the
first election." We agree, and recommend that the new election should field the
same slate of candidates (Rep. Young, Feehan, and Palmer), and operate with
the same policies and procedures of a typical election, as is mandated by valid
precedent of the Connecticut Supreme Court.
Committee Report p. 20-21, 25.
III.

LEGAL GROUNDS RELIED UPON
This motion is brought pursuant to the fourteenth amendment to the federal

constitution, article first, § 10 of the state constitution, and Practice Book §§ 60-2 and 71-5.
IV.

ARGUMENT
Reconsideration and/or reargument is required because this Court's decision to defer to

the House to resolve this case was based on this Court's assumption that Feehan's
constitutional rights would not be violated through that process. Now that the matter has
proceeded to the House Committee, and Feehan's due process and equal protection rights
were violated (and the rights of the disenfranchised voters of the 120th remain impaired), this
Court must grant this motion, reconsider its decision, and order a new election.
6

 A.

The Plaintiff's Due Process Rights Were Violated

Feehan's right to due process was violated when the Democratic members changed the
rules at the end of the proceedings. Neither the legislature, nor the judiciary, nor the legislature
acting as a judicial body, may retroactively change the law to deny a claim.
Due process requires notice that is "reasonably calculated, under all the circumstances,
to apprise interested parties of the pendency of the action and afford them an opportunity to
present their objections," and that is "of such nature as reasonably to convey the required
information." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). Due
process is violated where the notice is misleading or lacks information regarding the applicable
rules or procedures. See Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 14 (1978)
("The purpose of notice under the Due Process Clause is to apprise the affected individual of,
and permit adequate preparation for, an impending `hearing."); Rodriguez v. Astrue, 2013 WL
12329109 (D.N.M. Sept. 12, 2013) (due process violation where notice to Social Security
applicant contained legal standard that was not used by hearing officer (citing Rolen v.
Barnhart, 273 F.3d 1189, 1191 (9th Cir. 2001)).
By changing the standard from proving the allegations set forth in the Complaint to
proving how voters would have voted, the Democrats violated the right to due process. See
Consol. Edison Co. of New York, Inc. v. F.E.R.C., 315 F.3d 316, 323 (D.C. Cir. 2003).
1.

The settled law at the time of this election

Rutkowski v. Marrocco, 2013 WL 6916610 (Conn. Super. Ct. 2013) (Sheridan, J.)
explains the legal standard for a new election and its application when incorrect ballots are
distributed which cast doubt on the reliability of the election. In Rutkowski, incorrect ballots
were distributed to voters at the polling location for Voting District Number 14 in Ward 5 of the
City of New Britain. The court followed the standard set forth in Bortner v. Town of
7

 Woodbridge, 250 Conn. 241 (1999) to order a new election. A new election is required when
there is: (1) an error or errors in the rulings of an election official, or a mistake in the count of
the votes and (2) that those errors or mistakes cast serious doubt on the reliability of the
election results. Bortner, 250 Conn. at 259, 263. After determining that the election officials
committed errors and that there was a substantial mistake in the count of the votes in Ward 5
(thus satisfying both of the criteria under Bortner) the court held that there was serious doubt
about the reliability of the election results. Given the three vote difference between the plaintiff
and defendant candidates, if the seventeen voters had the opportunity to vote in the correct
election, the outcome of the election could have been different.
The present case is no different than Rutkowski. Thus, all that was necessary for a new
election was proof that 75 people were given the wrong ballots in an election decided by 13
votes. Under the Connecticut legal standard for a new election, as explained in Bortner, a new
election in the 120th Assembly District is required as a matter of law.
2.

Retroactive changing of the standard violated due process

As discussed above, the Democrats' retroactive changing of the standard and burden to
require proof of how the 75 voters would have cast their votes was a clear due process
violation. This is a particularly troubling violation in the context of elections, where
"fundamental fairness" is essential to protecting the integrity of the electoral process and the
constitutional rights of the electors to vote and have their votes counted equally. See Roe v.
State of Alabama, 43 F.3d 574, 580-81 (11th Cir. 1995); see also Griffin v. Burns, 570 F.2d
1065, 1075 (1st Cir.1978) (changing rules for absentee ballots after election violated due
process). Here, not only did the Democrats add a new burden, the standard they retroactively
applied has been expressly disavowed by this Court. See Bauer v. Souto, 277 Conn. 829, 840
(2006) (explaining that under Bortner, candidate is not required to show that he would have
prevailed in the election and rejecting claim to the contrary as "utterly without merit").
8

 3.

The Democrats' retroactive standard is arbitrary and capricious

The Democrats acted arbitrarily in faulting Feehan for not presenting testimony from
voters as to how they would have voted. First, pursuant to House Rule 19, it was the
chairperson's duty and ability to compel testimony from any witnesses deemed necessary.
Feehan had no subpoena power. Feehan provided a complaint, with the facts needed to meet
this Court's standard fora new election. See Complaint, ¶¶ 1-23. Feehan suggested witnesses
who could confirm the facts alleged in the Complaint. A53. If the Democratic chairman
genuinely required additional facts or evidence other than those set forth in the Complaint, it
was his obligation and authority - indeed, his sole authority — to obtain them. Having decided
not to do so, it is now disingenuous to fault Feehan for not presenting testimony from voters.
The decision to place this burden on Feehan is even more ludicrous when one
considers that he would need to violate state law in order to meet it. The state constitution
expressly provides that "[t]he right of secret voting shall be preserved." Connecticut
Constitution, Article Sixth, section 5; see also General Statutes § 9-242(a). In fact, it is a felony
offense to invade the secrecy of voting. See General Statutes § 9-366 ("Any person who...
does any act which invades or interferes with the secrecy of the voting or causes the same to
be invaded or interfered with, shall be guilty of a class D felony.").6
Because the burden created by the Democrats is impossible and illegal to meet, it is an
arbitrary and capricious standard that violates due process and requires this Court's

6

The Democrats state in their report that voters could have testified voluntarily. This argument
highlights the due process problem with their position. How could Feehan's constitutional right
to a fair election depend on voters waiving their own constitutional right to secrecy? And how
would those individuals even be identified without violating CGS § 9-366 and committing a
crime? The Democrats also suggest that a statistician could have testified. It would have been
well-nigh impossible for a statistician to divine how the 75 people would have voted (after all,
this is why we have elections rather than relying on polls in the first place). Nonetheless, if the
chairman wanted to hear from a statistician, he could have called one. He chose not to. It
violates due process for him to now use his own decision to deprive Feehan of a fair election.
9

 intervention. See Barry v. United States ex rel. Cunningham, 279 U.S. 597 (1929) (while
Congress has power to resolve elections dispute, judicial invention is proper to remedy
arbitrary and improvident use of the power that results in a denial of due process).
B.

The Plaintiff's Equal Protection Rights Were Violated

In addition, Feehan's equal protection rights were violated and the rights of the 75
voters to cast an equal vote remain impaired. If Feehan had been a candidate for any other
office, and these same facts were established, a new election would have been ordered. See
Bortner, Bauer, Rutkowski. By failing to apply the same standard in determining whether a new
election should be held, the Democratic members violated the equal protection clause.
In addition, the process employed discriminated against Feehan as a Republican (and,
therefore, non-majority party) candidate. The Second Circuit has recognized that a system that
discriminates on the basis of political party affiliation violates the equal protection clause. See
Green Party of Connecticut v. Garfield, 616 F.3d 213, 229 (2d Cir. 2010) ("whether the system
burdens the political opportunity of a party or candidate in a way that is unfair or
unnecessary."); see also Keating v. Carey, 706 F.2d 377 (2d Cir. 2006) (holding that political
party affiliation can be protected class).
The procedure that was employed in this matter, which resulted in the Democrats
changing the law, standards, and burden in order to deny Feehan his constitutional right to a
fair election, is a violation of the equal protection clause.
IV.

CONCLUSION
This Court stayed its hand to allow the House Committee to act. It has now done so and

violated the constitutional rights to due process and equal protection. This Court must grant
reconsideration and/or reargument to protect those constitutional rights and, based on the now
established and undisputed facts, order a new election in the 120th Assembly District.
10

 Respectfully Submitted,
THE PLAINTIFF,
JIM FEEHAN

By:
Proloy K. Das, Esq.
Matthew A. Ciarleglio, Esq.
Kevin W. Munn, Esq.
Murtha Cullina LLP
185 Asylum Street
Hartford, Connecticut 06103
Telephone: 860.240.6000
Facsimile: 860.240.6150
pdas@murthalaw.com

11

 CERTIFICATION
I hereby certify that this motion complies with the provisions of Practice Book § 66-3
and that a copy of this motion pursuant to Practice Book §62-7 was mailed, via first-class mail,
postage pre-paid on this 11th day of February, 2019 to:
William Bloss, Esq.
Koskoff, Koskoff & Bieder
350 Fairfield Avenue
Bridgeport, CT 06604
Michael Skold
Office of the Attorney General
55 Elm Street
Hartford, CT 06141
Lawrence Sgrignari
Gesmonde, Pietrosimone & Sgrignari, LLC
3127 Whitney Avenue
Hamden, CT 06518

-: '.
Proloy K. Das

12