Cohen v. Rossi (Second Concurrence) ( 2023 )

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COHEN v. ROSSI—SECOND CONCURRENCE
ECKER, J. concurring in part and concurring in the
judgment. Writing for the plurality, my colleague, Jus-
tice McDonald, reads the term ‘‘municipal clerk’’ in Gen-
eral Statutes § 9-140b (c) (2) to plainly and unambiguously
mean the municipal clerk or the clerk’s designees. In
his concurrence, my equally learned colleague, Justice
D’Auria, reads the same language to plainly and unam-
biguously mean the municipal clerk or an assistant clerk
authorized pursuant to General Statutes § 7-19, and no
one else. Reasonable minds will differ on many subjects,
and even respected jurists with expertise in statutory
construction will sometimes disagree about when a
reading of a statute has strayed beyond the limits of
plausibility. In the present case, I am convinced that
both of my colleagues advance reasonable interpreta-
tions of § 9-140b (c) (2). At the end of the day, one
interpretation must be wrong and the other right, but
neither side is so clearly right or wrong that no room
for doubt remains regarding who exactly is authorized
to retrieve absentee ballots from drop box locations.
‘‘[M]ore than one reasonable interpretation of a statute’’
is the very definition of ambiguity under our case law.
Ledyard v. WMS Gaming, Inc., 338 Conn. 687, 698 n.6,
258 A.3d 1268 (2021). Under these circumstances, I see
great benefit, and no conceivable harm, in looking at
extratextual evidence that would help resolve our inter-
pretive impasse. Indeed, General Statutes § 1-2z1 con-
templates precisely that approach.
I am ultimately persuaded that the interpretation of
§ 9-140b (c) (2) adopted by the plurality is correct, only
after considering the 2021 amendment of the statute
and related legislative history. I therefore agree with
and join parts II through VI of the plurality opinion and
concur in the result reached in part I.
I
My colleagues and I disagree about whether § 9-140b
(c) (2) is ambiguous. Ambiguity matters because § 1-
2z prohibits a court from considering legislative history
and other extratextual evidence unless the statutory
meaning is ambiguous or the unambiguous meaning
yields absurd or unworkable results. Section 1-2z pre-
scribes a two step process for statutory interpretation.
In the first step, we attempt to ascertain the meaning
of the statute as applied to the facts of the case, without
the benefit of extratextual sources of legislative intent.
To do this, we try to derive ‘‘the apparent intent of the
legislature’’ from the text itself, considering the broader
legal and practical context. (Internal quotation marks
omitted.) Seramonte Associates, LLC v. Hamden, 345
Conn. 76, 83, 282 A.3d 1253 (2022). If that process reveals
a single, clear answer, then our task is complete. If,
however, step one produces more than one plausible
interpretation, or if the plain and unambiguous meaning
yields absurd or unworkable results, then we may move
on to step two.
In step two, we are permitted to consider legislative
history and similar materials, which we are required to
set aside in part one. In this way, § 1-2z limits the role
of legislative history in statutory interpretation. By cur-
tailing our use of legislative history, § 1-2z prevents
overreliance on remarks by legislators or others that
may not be the most reliable guide to what the legisla-
ture intended. As the legislature knows better than we
do, legislative history is a far from perfect guide to
legislative intent. The best evidence of the purpose of
a statute is the language passed into law, not the stray
remarks of individual legislators or persons testifying
at legislative hearings.
This case is unusual because the court has produced
two divergent opinions, each implicitly but necessarily
claiming to offer the only reasonable interpretation of
the same statutory provision. The plurality concludes
that the term ‘‘municipal clerk’’ unambiguously means
‘‘the clerk or the clerk’s designee.’’ I disagree because I
think it is at least reasonable to conclude, as the
plaintiff, Barry Lee Cohen, argues, and as Justice D’Auria
believes, that ‘‘municipal clerk’’ means simply ‘‘municipal
clerk’’ and (unless the assistant clerk’s role is activated
under § 7-19)2 nothing more. That is how the term is
defined in the statutory scheme that governs absentee
voting, of which § 9-140b (c) (2) is a part. See General
Statutes § 9-1 (g) (defining ‘‘municipal clerk’’ as ‘‘the clerk
of a municipality’’); General Statutes § 9-1a (defining
‘‘municipal clerk’’ as ‘‘the town clerk in or for the munici-
pality to which reference is made’’). I cannot accept that
a literal reading of the statute is not even plausible in
these circumstances.
The existence of a plausible alternative interpretation
is enough to create ambiguity. ‘‘[A]lthough there must be
more than one reasonable interpretation of a statute in
order for it to be considered ambiguous, those interpreta-
tions need not be necessarily strong or have a high proba-
bility of success. Put differently, a statute is plain and
unambiguous when the meaning . . . is so strongly indi-
cated or suggested by the [statutory] language . . . that
. . . it appears to be the meaning and appears to preclude
any other likely meaning. . . . [I]f the text of the statute
at issue . . . would permit more than one likely or plausi-
ble meaning, its meaning cannot be said to be plain and
unambiguous.’’ (Emphasis in original; internal quotation
marks omitted.) Ledyard v. WMS Gaming, Inc., supra,
338 Conn. 698 n.6. For this reason, among others, I believe
that § 9-140b (c) (2) is ambiguous and would proceed to
consider legislative history before reaching a decision
about what the statute means as applied to the facts of
this case.
In fairness to the plurality, the statutory language is
not as straightforward as it appears. It might seem obvious
that ‘‘municipal clerk’’ simply means ‘‘municipal clerk,’’
but statutory interpretation is not an abstract exercise in
stringing together dictionary definitions. ‘‘When constru-
ing a statute, [o]ur fundamental objective is to ascertain
and give effect to the apparent intent of the legislature
. . . as applied to the facts of [the] case . . . .’’ (Internal
quotation marks omitted.) Wind Colebrook South, LLC v.
Colebrook, 344 Conn. 150, 161, 278 A.3d 442 (2022). The
present case illustrates how the literal meaning of a term
(the ‘‘municipal clerk,’’ as the person) may become so
intertwined and even conflated with a different meaning
(the ‘‘municipal clerk,’’ as the office of the municipal clerk,
including its employees) that it is difficult to know which
of the two different meanings was intended.
‘‘As required by § 1-2z, we must determine whether this
statutory language is ambiguous. The test to determine
ambiguity is whether the statute, when read in context,
is susceptible to more than one reasonable interpretation.’’
(Emphasis added; internal quotation marks omitted.) Id.,
165; see King v. Burwell, 576 U.S. 473, 486, 135 S. Ct.
2480, 192 L. Ed. 2d 483 (2015) (‘‘oftentimes the meaning—
or ambiguity—of certain words or phrases may . . .
become evident [only] when placed in context’’ (internal
quotation marks omitted)). Both the plurality and Justice
D’Auria give substantial weight to commonsense and
practical considerations about the operation of a munici-
pal clerk’s office, the feasibility of single-handedly retriev-
ing all absentee ballots, and prevailing concerns about
the integrity of our elections in connection with absentee
voting. The application of practical wisdom in this manner
is perfectly appropriate. ‘‘[C]ourts should not construe
statutes in disregard of their context’’; (internal quotation
marks omitted) State v. Banks, 321 Conn. 821, 842, 146
A.3d 1 (2016); and ‘‘there is no canon against using com-
mon sense . . . .’’ Roschen v. Ward, 279 U.S. 337, 339,
49 S. Ct. 336, 73 L. Ed. 722 (1929). This court repeatedly
has held that the threshold ambiguity analysis under § 1-
2z should and must take into account these commonsense,
practical considerations regarding how the statutory
scheme will operate in the real world. See, e.g., Seramonte
Associates, LLC v. Hamden, supra, 345 Conn. 91 (relying
on practical considerations in determining whether stat-
ute was plain and unambiguous); Casey v. Lamont, 338
Conn. 479, 493, 258 A.3d 647 (2021) (considering common-
sense implications of statutory construction before
resorting to extratextual sources to glean legislature’s
intent); Planning & Zoning Commission v. Freedom of
Information Commission, 316 Conn. 1, 18 n.13, 110 A.3d
419 (2015) (considering whether proffered construction
of statute ‘‘would belie common sense’’ in assessing
ambiguity).
The difference between my view and the views of my
colleagues is that these contextual considerations only
strengthen my conviction that the term ‘‘municipal clerk,’’
as used in § 9-140b (c) (2), is ambiguous. The term might
plausibly mean ‘‘the clerk or the clerk’s designee,’’ but it
might also plausibly mean the clerk alone (or the assistant
clerk if the requirements of § 7-19 are met). The plurality
relies on three arguments to arrive at the conclusion that,
despite first appearances, the operative language plainly
and unambiguously permits the clerk’s authorized desig-
nee to retrieve the absentee ballots. See part I of the
plurality opinion. I find these arguments to be, for the most
part, persuasive enough to create ambiguity regarding the
meaning of § 9-140b (c) (2). I do not agree, however, that
they render the alternative reading so unreasonable that
there is no need to consult the legislative history.
First, the plurality contends that the reference to the
municipal clerk in § 9-140b (c) (2) must include the clerk’s
designee because § 7-19 allows the municipal clerk to
delegate responsibilities.3 This point achieves only limited
traction. Section 7-19, by its express terms, applies only
to ‘‘assistant town clerks’’ who have ‘‘taken the oath pro-
vided for town clerks . . . .’’ No other persons are author-
ized by § 7-19 to act for the municipal clerk. The record
in the present case reveals that only one of the three
individuals who retrieved absentee ballots at the clerk’s
request was an assistant town clerk and, thus, a permitted
designee under § 7-19.4 Additionally, an assistant town
clerk has ‘‘all the powers and [may] perform all the duties
of the town clerk’’ only if the town clerk is absent or
unable to perform his or her duties. General Statutes § 7-
19. With one exception, there is no evidence in the present
case to indicate that, on each of the dates that the absentee
ballots were collected from drop boxes, the town clerk
was absent or otherwise unable to perform her duties.5
The fact that § 7-19 expressly authorizes the town clerk
to delegate her duties to a duly appointed assistant clerk
plainly does not demonstrate that § 9-140b (c) (2) permits
an unfettered delegation of duties. Indeed, it could be
argued that, by expressly providing for a limited delega-
tion of authority, the statutory scheme prohibits any other
delegation of authority except in accordance with the
constraints of § 7-19. See, e.g., DeNunzio v. DeNunzio,
320 Conn. 178, 194, 128 A.3d 901 (2016) (‘‘[u]nder the
doctrine of expressio unius est exclusio alterius—the
expression of one thing is the exclusion of another—we
presume that when the legislature expresses items as
a group or series, an item that was not included was
deliberately excluded’’).
Second, the plurality argues that subsection (d) of § 9-
140b contemplates that someone other than the town
clerk will receive and process absentee ballots. I disagree.
Subsection (d) of § 9-140b provides in relevant part that
‘‘[n]o person shall have in his possession any official
absentee ballot or ballot envelope . . . except . . . any
person authorized by a municipal clerk to receive and
process official absentee ballot forms on behalf of the
municipal clerk, any authorized primary, election or refer-
endum official or any other person authorized by any
provision of the general statutes to possess a ballot or
ballot envelope.’’ (Emphasis added.) This subsection
makes possession of an official absentee ballot or ballot
envelope unlawful, with an exception for, among others,
any persons authorized to ‘‘receive and process’’ the
absentee ballots on behalf of the clerk. The provision says
nothing about who is authorized ‘‘to receive and process
official absentee ballot forms’’ but merely states that only
persons so authorized may be in possession of the ballots.6
General Statutes § 9-140b (d).
Finally, the plurality reasons that the legislature must
have intended to permit a municipal clerk to delegate the
duty to retrieve absentee ballots from drop boxes because
the clerk has many other statutory responsibilities relating
to absentee voting, and it is implausible that the legislature
intended to impose such manifold and onerous responsi-
bilities on a single public official without the ability to
delegate. This is a good and persuasive argument, but in
no way does it remove the ambiguity from the statute.
Instead, it gives rise to ambiguity or adds to its presence.
It is at least plausible that the language the legislature
employed was intended to establish a strict procedure
for handling absentee ballots. Section 9-140b (c) (2) is
part of chapter 145 of title 9 of the General Statutes, which
governs absentee voting procedures. See General Statutes
§ 9-133f. These statutes establish mandatory procedural
requirements to protect against fraud and corruption in
the use of absentee voting. See Keeley v. Ayala, 328 Conn.
393, 411, 179 A.3d 1249 (2018). The procedural require-
ments are exacting, extensive, and detailed. See generally
General Statutes § 9-133f et seq.7 They cover the entire
life cycle of the balloting process, including eligibility and
application procedures for absentee voters; printing, form
and inspection procedures for absentee ballots; distribu-
tion, execution, handling, processing, tabulation and
accounting procedures for the ballots; and more. Specific
statutory provisions include elaborate requirements gov-
erning the chain of custody of these ballots to ensure that
the absentee voting process, which, by definition, occurs
outside of the controlled environment of regular voting
locations, is not corrupted—whether accidentally or
intentionally—by mishandling, meddling or any other
irregularity. ‘‘[T]he procedures required by the absentee
voting laws serve the purposes of enfranchising qualified
voters, preserving ballot secrecy, preventing fraud, and
achieving a reasonably prompt determination of election
results . . . . This court previously has recognized that
there is considerable room for fraud in absentee [ballot]
voting and that a failure to comply with the regulatory
provisions governing absentee [ballot] voting increases
the opportunity for fraud.’’ (Internal quotation marks omit-
ted.) Keeley v. Ayala, supra, 407. In this context, it strikes
me as at least reasonable to construe § 9-140b (c) (2), as
the plaintiff and Justice D’Auria do, to mean that the
legislature intended the municipal clerk, and no one else,8
to personally carry out particular duties relating to absen-
tee ballots.9
I do not claim that the plurality is wrong about the
meaning of § 9-140b (c) (2). The plurality’s interpretation
is textually plausible and entirely sensible in the context
of the facts and the larger statutory scheme. My point
simply is that this is not the only reasonable reading of
the statute, for the reasons that I have explained. In § 1-2z
terms, the statutory meaning that the plurality ascertains
from the operative text and statutory context is not plain
and unambiguous. As a consequence, I would proceed, as
I do in part II of this opinion, to consider extratextual
evidence to the extent it illuminates the legislative inten-
tion behind the relevant statutes.
II
Section 9-140b (c) (2) was amended during a special
session in June, 2021. See Public Acts, Spec. Sess., June,
2021, No. 21-2, § 102 (Spec. Sess. P.A. 21-2).10 The prior
version of the statute provided in relevant part: ‘‘In the
case of absentee ballots mailed under subparagraph (B)
of subdivision (1) of this subsection . . . the municipal
clerk shall (A) retrieve from the secure drop box
described in said subparagraph each such ballot depos-
ited in such drop box, and (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.’’ (Emphasis added.) General Statutes
(Rev. to 2021) § 9-140b (c) (2). Thus, the statute, in its
current form, was amended to delete the reference to
the ‘‘clerk’s designee’’ and a police escort during the
retrieval of absentee ballots from certain drop boxes.
The deletion of the ‘‘clerk’s designee’’ from § 9-140b (c)
(2) would seem to support the plaintiff’s argument that
the legislature intended only for the municipal clerk,
and no one else, to retrieve absentee ballots from drop
boxes. A closer look at the relevant legislative history,
however, is instructive regarding the reason for this
statutory amendment and undermines the plaintiff’s
claim.
As the trial court, Wilson, J., observed in her compre-
hensive memorandum of decision, the purpose of this
statutory amendment ‘‘was twofold: (1) to make the
absentee ballot drop boxes permanent; and (2) to delete
the requirement that a police officer accompany the
clerk or the clerk’s designee when [he or she] retrieve[s]
ballots from a drop box other than the one located
outside the municipal clerk’s office building.’’ As
recounted by the trial court, former Secretary of the
State Denise W. Merrill testified during a March 10,
2021 hearing of the Government Administration and
Elections Committee about the purpose of the proposed
amendment:11 ‘‘ ‘Its purpose is to make the administra-
tion of elections easier for local officials and [to] make
navigating that administration easier for voters. . . .
The secure absentee ballot drop box provision would
make these drop box[es] . . . a permanent convenient
part of Connecticut elections.’ [Conn. Joint Standing
Committee Hearings, Government Administration and
Elections, 2021 Sess. (March 10, 2021) pp. 18–19,
remarks of Secretary of the State Merrill.] Representa-
tive [Gale] Mastrofrancesco later asked whether a
police escort would need to accompany the town clerk
to retrieve absentee ballots from the drop box. Id., [p.]
29. Merrill responded: ‘[W]e [have] consulted with the
town [clerks] and we asked them . . . do you think
this is necessary because essentially, this is a job for
the town [clerks], it’s a way of making their jobs easier
frankly. . . . You know there’s a vast variety of towns
in the state, so they told us they didn’t think it was
necessary, that they thought they were capable of doing
it without the police presence, [that they] had absolutely
no problems with the ballot boxes . . . .’ Id. [pp.
29–30.]
‘‘Representative Mastrofrancesco then specifically asked
Merrill: ‘[S]o the town clerk will be responsible for
picking up the ballots, [does it have] to be the town
clerk specifically picking up the ballots out of the box
or can [he or] she just send . . . anybody [there] to
pick them up.’ Id., [p.] 30. Merrill responded: ‘I believe
the town clerk[s] [have] to do that themselves, I mean
. . . either a town clerk or designee of the town clerk,
they can designate certainly I’m sure they have assis-
tance and all kinds of people in their office [who] would
be available to pick them up.’ Id. Representative Mastro-
francesco replied: ‘[S]o pretty much anybody [who]
works for the town [he or] she can really designate
anybody to go pick up those ballots.’ Id. Merrill
responded: ‘Yes, well similar to, they could send some-
body to the mail room to pick up the ballots from the
mail to[o] same idea. Ballot boxes are treated exactly
like mailboxes essentially.’ Id.’’
On the basis of the foregoing legislative history and
the practical difficulties identified by the plurality, I
agree with the trial court that ‘‘the legislature’s purpose
[in] amending § 9-140b (c) (2) was to make the drop
boxes permanent for future elections and to omit the
requirement that a police officer escort the town clerk
or her employees when retrieving absentee ballots from
drop boxes around the town or city. There is no indica-
tion that the amendment’s purpose was to require that
only the municipal clerk herself retrieve the absentee
ballots from the drop boxes.’’ The legislative history
thus confirms the plurality’s construction of the statute
and illustrates that the appropriate use of extratextual
evidence will serve to effectuate (rather than under-
mine) the legislative will. Because I agree with the plu-
rality that the municipal clerk was permitted under § 9-
140b (c) (2) to designate municipal employees within
her office to retrieve absentee ballots from the secure
drop boxes on her behalf, I concur in the result reached
in part I of the plurality opinion.
1
General Statutes § 1-2z provides that ‘‘[t]he 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 consider-
ing 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
A duly appointed assistant clerk may, under specified circumstances,
perform the duties of the municipal clerk pursuant to § 7-19. See footnote
3 of this opinion. Justice D’Auria and I agree that § 7-19 provides authority
for a duly appointed assistant clerk to retrieve absentee ballots from a drop
box only if the municipal clerk is absent or unable to perform those duties.
See footnote 5 of this opinion.
3
General Statutes § 7-19 provides in relevant part: ‘‘Each town clerk may,
unless otherwise provided by charter or ordinance, appoint assistant 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. . . .’’
4
Sharon Recchia was designated as an assistant clerk, and she retrieved
some of the absentee ballots cast in the 2022 election. Municipal employees
Jasmine Acevedo and Lori Moran also retrieved absentee ballots. There is
no evidence that either Acevedo or Moran was an authorized delegee under
§ 7-19.
5
The municipal clerk was not present in the clerk’s office on election
day, and, therefore, I agree with the plurality that ‘‘the retrieval of ballots
from the drop boxes on election day by an assistant clerk would plainly be
permissible under § 7-19 . . . .’’ Footnote 5 of the plurality opinion.
6
Even if, for the sake of argument, subsection (d) of § 9-140b were con-
strued as an implied grant of authority, the specific action authorized is
‘‘receiv[ing] and process[ing]’’ absentee ballots, not ‘‘retriev[ing]’’ absentee
ballots from a drop box, which is the particular conduct referenced in § 9-
140b (c) (2).
7
See, e.g., General Statutes § 9-135b (form, layout and inspection protocols
for absentee ballots); General Statutes § 9-137 (oath and inner envelope
for ballot); General Statutes § 9-138 (outer envelope for ballot and inner
envelope); General Statutes § 9-139a (Secretary of the State’s obligations
regarding provision to municipal clerks of ballots, envelopes and instruc-
tions); General Statutes § 9-139c (municipal clerk accountability and
reporting requirements); General Statutes § 9-140 (application for and issu-
ance of absentee ballots, distribution of absentee ballot applications, mailing
unsolicited absentee ballot applications, and summary of absentee ballot
voting laws); General Statutes § 9-140a (singing of form and insertion of
absentee ballot in envelopes); General Statutes § 9-140b (return of absentee
ballots and restrictions on possession of absentee ballots and envelopes);
General Statutes § 9-140c (sorting of absentee ballots and checking of names
on registry list, rejection of absentee ballots, times for delivery of ballots,
and retention of late ballots).
8
Again, this means no one else except for a duly appointed assistant clerk
acting pursuant to § 7-19.
9
The plaintiff and Justice D’Auria follow different paths to reach the same
conclusion. Their positions also differ in that the plaintiff, unlike Justice
D’Auria, does not contend that the statutory meaning that he promotes is
plain and unambiguous. Although I agree with aspects of Justice D’Auria’s
concurring opinion, I disagree in two respects: (1) I do not consider the
statute to be plain and unambiguous; and (2) I find the plurality’s interpreta-
tion of the statute marginally more persuasive as it relates to who may
retrieve the ballots.
10
The plurality appears to consider the prior version of the statute to be
extratextual evidence of legislative intent. See part I of the plurality opinion.
Justice D’Auria indicates agreement with that view. See footnote 2 of Justice
D’Auria’s concurring opinion. That position is open to doubt. Compare
Chestnut Point Realty, LLC v. Windsor, 324 Conn. 528, 537–38, 153 A.3d
636 (2017) (treating statutory genealogy as extratextual evidence), Donahue
v. Veridiem, Inc., 291 Conn. 537, 546 n.8, 970 A.2d 630 (2009) (§ 1-2z ‘‘permits
resort to extratextual sources, such as amendments to the statute, [only]
after there is a determination that the text is ambiguous’’), and Harpaz v.
Laidlaw Transit, Inc., 286 Conn. 102, 112, 942 A.2d 396 (2008) (‘‘[because]
the statute yields no plain meaning . . . we turn to [its] genealogy and
legislative history . . . to answer the issue raised in this appeal’’), with
Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn.
268, 305, 308, 21 A.3d 759 (2011) (considering ‘‘the genealogy of the statute’’
in determining whether statute was plain and unambiguous under § 1-2z).
For present purposes, however, I will assume, for the sake of argument,
that both the prior text of the statute and its legislative history should be
treated as ‘‘extratextual evidence’’ under § 1-2z.
11
The public hearing was on Senate Bill No. 1017, which contained the
same statutory amendment ultimately enacted in § 102 of Spec. Sess. P.A.
21-2 during the legislature’s special session in June, 2021. Like the trial
court, I find the legislative history of Senate Bill No. 1017 to be illustrative
of the legislative intent animating § 102 of Spec. Sess. P.A. 21-2.