Cohen v. Rossi ( 2023 )

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COHEN v. ROSSI—FIRST CONCURRENCE
D’AURIA, J., with whom ROBINSON, C. J., joins, con-
curring in part and concurring in the judgment. I agree
with and join parts II through VI of the plurality opinion.
Respectfully, however, I do not agree with the conclusion
in part I of the plurality opinion, that the term ‘‘munici-
pal clerk’’ in General Statutes § 9-140b (c) (2) plainly
and unambiguously authorizes the municipal clerk and
any of the clerk’s ‘‘designees’’ to retrieve absentee
ballots from secure drop boxes. Rather, I believe that
the statute’s plain and unambiguous language autho-
rizes only the municipal clerk and, if the requirements
of General Statutes § 7-19 are satisfied, any appointed
assistant clerks, to retrieve absentee ballots from the
drop boxes. Nonetheless, I agree with the plurality that the
record before us regarding who retrieved how many
absentee ballots does not permit a conclusion that any
error affected the reliability of the result of the Novem-
ber, 2021 election for mayor of the city of West Haven.
I therefore respectfully concur in part.
My main disagreement with the plurality concerns
its application of General Statutes § 1-2z.1 Although the
plurality recites this statute when undertaking to con-
strue the term ‘‘municipal clerk,’’ I do not agree that
the plurality has properly considered both the language
of § 9-140b (c) (2) and its relationship to other related
statutes. Specifically, the plurality holds that the phrase
‘‘municipal clerk’’ means the municipal clerk and any
designee of the clerk, despite the fact that the word
‘‘designee’’ does not appear anywhere in the governing
statutes to describe anyone whom the clerk may desig-
nate to perform any task, let alone to retrieve absentee
ballots from drop boxes.2 The plurality mainly bases its
conclusion on its contention that, because so many
other statutes that require the municipal clerk to under-
take certain duties regarding the absentee ballot proce-
dure only use the phrase ‘‘municipal clerk,’’ without
explicitly authorizing others to act on his or her behalf,
it would be ‘‘ ‘absurd or unworkable’ ’’ to require the
clerk to personally ‘‘carry out the entire absentee ballot
procedure,’’ which ‘‘would grind the administration of
an election nearly to a halt.’’ The plurality relies on §§ 7-19
and 9-140b (d) to support its conclusion ‘‘that the legisla-
ture contemplated that the municipal clerk [would] dele-
gate tasks to her designees and is authorized to do so.’’
In my view, the plurality does not sufficiently con-
sider the plain and unique language of each of these
statutes and provisions. I believe that an appropriate
§ 1-2z analysis should proceed as follows. Section 9-
140b (c) (2) requires ‘‘the municipal clerk [to] retrieve
from the secure drop box . . . each such [absentee]
ballot deposited in such drop box.’’ General Statutes
§ 9-1 (g) defines ‘‘[m]unicipal clerk’’ as ‘‘the clerk of
a municipality . . . .’’ General Statutes § 9-1a defines
‘‘municipal clerk’’ or ‘‘clerk of the municipality’’ as ‘‘the
town clerk in or for the municipality to which reference
is made, unless otherwise provided by charter or special
act.’’ I agree with the plurality that these definitions
‘‘[appear] to require the municipal clerk to personally
retrieve the absentee ballots from each secure drop
box.’’
As to the plurality’s concern that requiring the munici-
pal clerk personally to carry out nearly the entire absen-
tee ballot procedure might be impossible, I believe that
reading the text of those statutes (including § 9-140b
(c) (2)) and their ‘‘relationship to other statutes’’ leads
to a conclusion different from that of the plurality about
how the legislature considered this problem and accom-
modated it. In my view, two statutes in particular mani-
fest this forethought. First, regarding the clerk’s duties
generally, § 7-19 allows the town clerk to ‘‘appoint assis-
tant town clerks, who, having taken the oath provided
for town clerks, shall, in the absence or inability of the
town clerk, have all the powers and perform all the
duties of the town clerk.’’ (Emphasis added.) Second,
regarding absentee ballots specifically, § 9-140b (d) pro-
vides in relevant part: ‘‘No person shall have in his
possession any official absentee ballot or ballot enve-
lope for use at any primary, election or referendum
except . . . any person authorized by a municipal clerk
to receive and process official absentee ballot forms on
behalf of the municipal clerk . . . .’’ (Emphasis added.)
The plurality cites to the latter provision as support
for its contention that ‘‘[§] 9-140b itself suggests that
someone other than the municipal clerk properly could
receive and process absentee ballots.’’ When read in
tandem, I draw a different conclusion than does the
plurality from the plain language of §§ 7-19 and 9-140b
about who may ‘‘perform [the duty]’’ of the town clerk
under § 9-140b (c) (2) of ‘‘retriev[ing] from the secure
the drop box[es] . . . each such ballot deposited in
such drop box.’’
The plurality, without citation, simply asserts that
‘‘[r]etrieving absentee ballots from the drop boxes cer-
tainly constitutes ‘receiv[ing] and process[ing]’ absen-
tee ballots.’’ Such effortless equivalence of language is
possible, but not necessary or even probable, under our
usual rules of interpretation. In fact, conventionally, we
presume that the legislature’s use of ‘‘different terms
. . . within the same statute suggests that the legisla-
ture acted with complete awareness of their different
meanings . . . and that it intended the terms to have
different meanings . . . .’’ (Internal quotation marks
omitted.) Celentano v. Oaks Condominium Assn., 265
Conn. 579, 609, 830 A.2d 164 (2003).
The words ‘‘retrieve’’ and ‘‘receive’’ are not defined in
this statutory scheme. Under their common dictionary
definitions, ‘‘retrieve’’ means ‘‘[t]o get back . . . [t]o
find and carry back’’; American Heritage Dictionary (4th
Ed. 2007) p. 1188; whereas ‘‘receive’’ means ‘‘[t]o acquire
or get something; be a recipient’’). Id., p. 1161. I draw
from these definitions that the legislature intended for
only the municipal clerk or, if the requirements of § 7-
19 are satisfied, any ‘‘appoint[ed]’’ and sworn assistant
clerks to ‘‘retrieve’’ (i.e., go get) absentee ballots from
the drop boxes under § 9-140b (c) (2). In contrast, ‘‘any
person authorized by [the] municipal clerk’’ may
‘‘receive and process’’ (i.e., be given and then process)
the ballots. General Statutes § 9-140b (d). There would
be no absurd or unworkable result by interpreting
‘‘municipal clerk’’ to mean only the municipal clerk
herself or himself and the clerk’s appointed assistant
clerks if the ‘‘absence or inability’’ requirement of § 7-
19 is satisfied. As the plurality contends, and it is beyond
cavil, the municipal clerk has many competing duties,
especially on election day, and, thus, the ‘‘absence or
inability’’ standard would appear to be easily met to
permit assistant clerks to perform those duties. Where
there are particular grants of authority for the clerk to
authorize others to perform functions of that office,
such as in § 9-140b (d), the clerk of the municipality
finds additional relief. See Marchesi v. Board of Select-
men, 309 Conn. 608, 618, 72 A.3d 394 (2013) (‘‘it is a
well settled principle of statutory construction that the
legislature knows how to convey its intent expressly
. . . or to use broader or limiting terms when it chooses
to do so’’ (citation omitted; internal quotation marks
omitted)).
Distinguishing between retrieving absentee ballots
and undertaking other functions with those ballots is
hardly without its rationality. In many contested elec-
tions (including this one), the custody of absentee bal-
lots—from the time they leave the voter’s hands to the
time there are witnesses to their processing—is often
the center of controversy. See, e.g., Lazar v. Ganim,
334 Conn. 73, 78, 220 A.3d 18 (2019) (voters contested
election results based on claim that defendants improp-
erly handled absentee ballots in violation of § 9-140b);
Keeley v. Ayala, 328 Conn. 393, 407, 179 A.3d 1249 (2018)
(contesting election results based on claim involving
whether party official or candidate could order police
officer to retrieve absentee ballots from electors and
to deliver them to town clerk). Because of the prolifera-
tion of absentee voting during the recent COVID-19
pandemic; see Fay v. Merrill, 338 Conn. 1, 8–9, 256 A.3d
622 (2021) (noting ‘‘ ‘a significant increase in the use
of absentee ballots’ ’’ due to pandemic and broadening
of authorization for who may request absentee ballot to
include ‘‘ ‘COVID-19’ ’’); and at a time when the legislature
has amended legislation regarding absentee voting (that
may continue to exist long after the pandemic is over);
see Public Acts 2022, No. 22-2, § 1 (effective April 8,
2022), codified at General Statutes § 9-135 (a); it seems
to me entirely sensible that the legislature might want
the municipal clerk or a sworn assistant clerk—not just
‘‘any person authorized’’ by the clerk—to retrieve those
ballots. If this is an undue burden, the legislature can
change it.
Thus, although I agree with the plurality that § 9-140b
(d) is plain and unambiguous, I believe that the plurality
defines the phrase ‘‘municipal clerk’’ too broadly. This
phrase is limited to the municipal clerk himself or herself,
and, if § 7-19 is satisfied, the clerk’s appointed assistant
clerks. Therefore, I conclude that there was error in
the absentee ballot retrieval procedure used in the elec-
tion at issue because at least some evidence indicates
that someone other than the municipal clerk or, assum-
ing that the requirements of § 7-19 were satisfied, an
appointed assistant clerk retrieved absentee ballots
from some of the drop boxes. But it is not clear from
the record before this court that this error had any
effect on the election’s outcome.
Accordingly, I respectfully concur in part.
1
General Statutes § 1-2z provides: ‘‘The meaning of a statute shall, in the
first instance, be ascertained from the text of the statute itself and its
relationship to other statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and unambiguous and
does not yield absurd or unworkable results, extratextual evidence of the
meaning of the statute shall not be considered.’’
2
General Statutes § 9-140b (a) (1) (B) does refer to, and § 9-140b (b) does
define, ‘‘designee,’’ but only in reference to someone whom an absentee
ballot applicant may designate to assist an absentee ballot applicant in
voting. There is no reference in § 9-140b to a designee of the municipal
clerk, although there was prior to the passage of Public Acts, Spec. Sess.,
June, 2021, No. 21-2, § 102. See General Statutes (Rev. to 2021) § 9-140b (c)
(2) (‘‘the municipal clerk shall . . . (B) if the drop box is located outside
a building other than the building where the clerk’s office is located, arrange
for the clerk or the clerk’s designee to be escorted by a police officer during
such retrieval’’).
In the absence of ambiguity, however, a proper textual construction of
the statute under § 1-2z does not refer to repealed language, and the plurality
does not contend that it does. See Soto v. Bushmaster Firearms Interna-
tional, LLC, 331 Conn. 53, 146, 202 A.3d 262 (vetoed bills and repealed
statutes may be considered under § 1-2z to determine meaning of statute
only when plain language of statute is ambiguous), cert. denied sub nom.
Remington Arms Co., LLC v. Soto, U.S. , 140 S. Ct. 513, 205 L. Ed.
2d 317 (2019).