Foley v. State Elections Enforcement Commission (concurring)

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****************************************************** The officially released date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the officially released date appearing in the opinion. In no event will any such motions be accepted before the officially released date. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** FOLEY v. STATE ELECTIONS ENFORCEMENT COMMISSION CONCURRENCE GRUENDEL, J., concurring. I join the majority opinion affirming the denial of injunctive relief by the trial court and concur with my colleagues in all respects, save for their interpretation of General Statutes § 9704 (a) (1). Because I believe that statute plainly and unambiguously limits qualifying contributions by an individual to $100, I write separately to express my disagreement with the interpretation espoused by the majority. The factual recitation provided in the majority opinion accurately and amply details the dispute before us. I note for emphasis only the stipulated fact most salient to this concurrence: absent dual contributions made by the same contributors to the defendant campaigns of gubernatorial candidate Michael C. Fedele and lieutenant gubernatorial candidate Mark D. Boughton,1 their joint campaign committee would not have met the $250,000 threshold for qualifying contributions under the Citizens Election Program (election program), General Statutes § 9-700 et seq. At issue is the proper construction of § 9-704 (a) (1). Section 9-704 is entitled [q]ualifying contributions. Subsection (a) (1) pertains to candidacies for nomination or election to the office of governor. It provides: The amount of qualifying contributions that the candidate committee of a candidate shall be required to receive in order to be eligible for grants from the Citizens Election Fund shall be: (1) In the case of a candidate for nomination or election to the office of Governor, contributions from individuals in the aggregate amount of two hundred fifty thousand dollars, of which two hundred twentyfive thousand dollars or more is contributed by individuals residing in the state. The provisions of this subdivision shall be subject to the following: (A) The candidate committee shall return the portion of any contribution or contributions from any individual, including said candidate, that exceeds one hundred dollars, and such excess portion shall not be considered in calculating such amounts, and (B) all contributions received by (i) an exploratory committee established by said candidate, or (ii) an exploratory committee or candidate committee of a candidate for the office of Lieutenant Governor who is deemed to be jointly campaigning with a candidate for nomination or election to the office of Governor under subsection (a) of section 9-709, which meet the criteria for qualifying contributions to candidate committees under this section shall be considered in calculating such amounts . . . . General Statutes § 9-704 (a) (1). The proper application of § 9-704 (a) (1) presents an issue of statutory interpretation over which our review is plenary. Regional School District No. 12 v. Bridgewater, 292 Conn. 784, 790, 974 A.2d 709 (2009). When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. . . . In seeking to determine the meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. (Internal quotation marks omitted.) Id. I thus begin my analysis with an examination of the text of § 9-704 (a) (1), which I submit is plain and unambiguous with respect to the question before us. The statute commences with the statement that [t]he amount of qualifying contributions that the candidate committee of a candidate shall be required to receive in order to be eligible for grants from the Citizens Election Fund shall be . . . . General Statutes § 9-704 (a). The statute continues by expressly indicating that subdivision (1) pertains exclusively to the case of a candidate for nomination or election to the office of Governor . . . . General Statutes § 9-704 (a) (1). Next is the provision requiring contributions from individuals in the aggregate amount of two hundred fifty thousand dollars, of which two hundred twenty-five thousand dollars or more is contributed by individuals residing in the state. General Statutes § 9-704 (a) (1). With that predicate set forth, § 9-704 (a) (1) proceeds to enumerate two qualifiers, stating that [t]he provisions of this subdivision shall be subject to the following . . . . (Emphasis added.) The first qualifier is the $100 proscription [t]he candidate committee shall return the portion of any contribution or contributions from any individual, including said candidate, that exceeds one hundred dollars, and such excess portion shall not be considered in calculating such amounts . . . . General Statutes § 9-704 (a) (1) (A). The second qualifier provides that all contributions received by (i) an exploratory committee established by said candidate, or (ii) an exploratory committee or candidate committee of a candidate for the office of Lieutenant Governor who is deemed to be jointly campaigning with a candidate for nomination or election to the office of Governor under subsection (a) of section 9-709, which meet the criteria for qualifying contributions to candidate committees under this section shall be considered in calculating such amounts . . . . General Statutes § 9-704 (a) (1) (B). Significantly, these are not competing or alternative criteria. The plain language of the statute contains the conjunction and, diction most pertinent to the present analysis. Accordingly, the two qualifiers contained in § 9-704 (a) (1) must be read in tandem. In my view, the first plainly informs the second. As a result, whereas the majority concludes its analysis by emphasizing the lack of an express statutory provision in § 9-704 (a) (1) (B); see part II of the majority opinion; the very sentence preceding that provision supplies that express statutory limitation. It is axiomatic that statutory provisions must in the first instance be considered in the context of their text and relationship to other statutes. Regional School District No. 12 v. Bridgewater, supra, 292 Conn. 790. I fail to see how § 9-704 (a) (1) (B) properly can be interpreted independently from § 9-704 (a) (1) (A), particularly when the legislature in drafting the statute expressly has required that both qualifiers apply. As I read § 9-704 (a) (1), which I am mindful pertains only to the case of a candidate for nomination or election to the office of Governor, I understand it plainly to indicate that when a gubernatorial candidate forms a joint campaign committee with a lieutenant gubernatorial candidate pursuant to General Statutes § 9-709, all contributions received by those candidates may be considered for calculatory purposes of qualifying contributions, so long as they do not run afoul of the proscription of contributions by a single individual in excess of $100. Had the legislature intended to permit otherwise, the use of the conjunctive and makes little sense or would better express that intent. In construing statutory language, [n]o part of a legislative enactment is to be treated as insignificant or unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase . . . and no word in a statute is to be treated as superfluous. (Internal quotation marks omitted.) State v. Anderson, 227 Conn. 518, 528, 631 A.2d 1149 (1993); see also Vibert v. Board of Education, 260 Conn. 167, 176, 793 A.2d 1076 (2002) (every word in statute presumed to have meaning). In addition, this court recently reaffirmed the significance of the use of the conjunction and in the General Statutes. Ahmadi v. Ahmadi, 294 Conn. 384, 393, 985 A.2d 319 (2009), citing State v. Bell, 283 Conn. 748, 796, 931 A.2d 198 (2007). The use of that conjunction indicates that both conditions set forth in such a statute must be fulfilled. See Location Realty, Inc. v. Colaccino, 287 Conn. 706, 719 n.11, 949 A.2d 1189 (2008) (recognizing significance of conjunctive and ); Penn v. Irizarry, 220 Conn. 682, 687, 600 A.2d 1024 (1991) ( use of the conjunctive and indicates that both conditions must be fulfilled ); Nicotra Wieler Investment Management, Inc. v. Grower, 207 Conn. 441, 455, 541 A.2d 1226 (1988) ( we find significance in the use of the word and between the two stated conditions ). That the General Assembly deliberately inserted the conjunction and between the two qualifiers contained in § 9-704 (a) (1) (A) and (B) to me clearly evinces an intent to limit all qualifying contributions by an individual under § 9-704 (a) (1) to $100. Moreover, to read § 9-704 in the manner advanced by the majority is to insert into subsection (a) (1) (B) a provision namely, that an individual s qualifying contributions to a joint campaign committee are not confined to the $100 maximum that is not expressly contained in the statute and that effectively nullifies the preceding proscription contained in subsection (a) (1) (A). Such a construction contravenes the maxim that [w]hen construing a statute, we do not interpret some clauses in a manner that nullifies others, but rather read the statute as a whole and so as to reconcile all parts as far as possible. (Internal quotation marks omitted.) West Haven v. Hartford Ins. Co., 221 Conn. 149, 157, 602 A.2d 988 (1992). That construction is particularly troubling when, as outlined previously, it is possible to interpret the statute to apply all of its provisions harmoniously, and in a manner that does not yield an unworkable result. In light of the foregoing, I would conclude that the text of § 9-704 (a) (1) plainly and unambiguously provides that an individual s contributions to both gubernatorial candidate committees and joint campaign committees formed pursuant to § 9-709 is confined to the $100 maximum for purposes of calculating qualifying contributions. Furthermore, notwithstanding the analytical confines of § 1-2z, in light of the majority s discussion of legislative history, I am compelled to note that such extratextual evidence substantiates my interpretation of § 9-704 (a) (1). As the majority acknowledges, the legislative history reflects that the qualifying contribution requirements were intended to foster a return to grassroots campaigning. See 48 S. Proc., Pt. 21, 2005 Spec. Sess., p. 6431, remarks of Senator Donald J. DeFronzo (legislation creates incentive to grassroots operation and grassroots politics ); id., p. 6730, remarks of Senator Donald E. Williams (legislation requires return to our roots and working with constituents at the local level ). Limiting qualifying contributions by a candidate s constituents to the amount of $100 was integral to this end. See 48 H. Proc., Pt. 37, 2005 Spec. Sess., pp. 11349 50, remarks of Representative James Field Spallone (legislation gets people out with their constituents into their districts at our level, asking for small donations so they can reach the threshold ); 48 S. Proc., supra, p. 6640, remarks of Senator Thomas P. Gaffey (legislation requires each and every one of us who s going to be a participant in this process under this structure to solicit campaign contributions from the very people we represent ); 48 S. Proc., supra, p. 6396, remarks of Senator Mary Ann Handley ( major piece of legislation is to control the amounts of money which individuals and groups can put into an election campaign ); 48 S. Proc., supra, pp. 6712 13, remarks of Senator Martin M. Looney (qualifying contribution requirements are particularly salutary element of the bill that underscores importance for our democracy in the setting of threshold requirements ). In addition, the qualifying contribution system was designed to avoid the situation of engaging or encouraging frivolous candidacies, and creating greater drains on the public fund. 48 S. Proc., supra, p. 6428, remarks of Senator DeFronzo. Beyond those general propositions, the legislative history specifically addresses the question presented in this appeal as to whether the General Assembly, in enacting the election program, intended to limit all qualifying contributions by individual contributors to $100. A review of that extratextual evidence reveals that Senator DeFronzo, chairman of the government administration and elections committee, widely was recognized as the steward of this particular legislation, serving as both draftsman and foremost expert thereon.2 On that day in November, 2005, when the legislation came up for a vote, Senator DeFronzo explained the election program to his colleagues from the floor of the Senate, stating in relevant part that [q]ualifying contributions are the same in all cases. 3 (Emphasis added.) 48 S. Proc., supra, p. 6442. I respectfully submit that this informed explanation cannot be reconciled with the analysis of § 9-704 (a) (1) set forth in the majority opinion. Senator DeFronzo s statement that [q]ualifying contributions are the same in all cases is buttressed by testimony from members of the named defendant, the state elections enforcement commission (commission). On February 25, 2008, Jeffrey B. Garfield, executive director and general counsel of the commission, testified before the government administration and elections committee on House Bill No. 5505, entitled An Act Concerning the Citizens Election Program. In response to a question from Senator Gayle Slossberg about nonqualifying contributions, Garfield detailed the type of contributions that are nonqualifying. He included in that list [c]ontributions from political action committees, political party committees . . . [and] in-kind contributions and then stated as well as contributions over $100. (Emphasis added.) Conn. Joint Standing Committee Hearings, Government Administration and Elections Committee, Pt. 2, 2008 Sess., pp. 589 90. Similarly, the committee heard testimony from Beth Rotman, the commission s director of public campaign financing for the election program, on § 9-704. Rotman testified that to the best of a candidate s ability . . . you re actually supposed to return to the contributor anything that the campaign, to the best of its ability, believes is nonqualifying, so if there s lobbyists, contractors, political committees, contributions in excess of $100, which is the limit for qualifying contribution. (Emphasis added.) Id., p. 590. Nowhere in the hundreds of pages of legislative history on the election program is there any discussion or indication that contributions to a joint campaign committee may exceed that limitation. The legislative history overwhelmingly indicates that the proscription of excess contributions by an individual to a candidate for nomination or election to the office of Governor the only candidacy to which § 9-704 (a) (1) applies governs both gubernatorial candidate committees and joint campaign committees formed pursuant to § 9-709. I submit that the legislative history not only speaks to the issue, but undermines the majority s interpretation of the statute. For that reason, I part ways with my colleagues on this issue. Apart from my disagreement as to the proper construction of § 9-704 (a) (1), I concur with the majority s determination that the trial court did not abuse its discretion in denying the plaintiffs request for injunctive relief. In weighing the pertinent factors; see Waterbury Teachers Assn. v. Freedom of Information Commission, 230 Conn. 441, 446, 645 A.2d 978 (1994); I would conclude that the balancing of the equities in the present case militated against the imposition of a temporary injunction. In particular, I emphasize that the record before us contains the sworn affidavit of Michael A. Totilo, treasurer of Fedele s gubernatorial campaign. In that affidavit, Totilo avers that the Fedele campaign has expended virtually all of the funds provided to it by the commission under the election program. I further am cognizant that General Statutes § 9-717 (b) ostensibly shields the Fedele campaign irrespective of whether it properly was entitled to those funds.4 Indulging every reasonable presumption in favor of the correctness of the trial court s ruling as our standard of review requires; see, e.g., Board of Selectmen v. Freedom of Information Commission, 294 Conn. 438, 453, 984 A.2d 748 (2010); I thus would conclude that the court did not abuse its discretion in the present case. 1 In addition to the Fedele and Boughton campaigns, the defendants include: Fedele 2010 Joint Gubernatorial Campaign Committee, the joint campaign committee formed by Fedele and Boughton; the state elections enforcement commission; Albert P. Lenge, the executive director and general counsel of the state elections enforcement commission, state comptroller Nancy Wyman, and state treasurer Denise L. Nappier. 2 See, e.g., 48 S. Proc., supra, p. 6503, remarks of Senator Andrew McDonald (thanking Senator DeFronzo for his work and leadership on legislation); id., p. 6637, remarks of Senator Gaffey (complimenting Senator DeFronzo s wisdom of Solomon as he navigated through many of the issues that surround this bill ); id., p. 6709, remarks of Senator Looney (congratulating Senator DeFronzo for his great patience and energy and determination and consensus-building skills in shaping this construct in an atmosphere where so little deference is paid to specialized expertise ); id., p. 6727, remarks of Senator Williams (applauding Senator DeFronzo s work as chairman of government administration and elections committee and his intellectual firepower in terms of mastering these bills ). 3 Senator DeFronzo s explanation undermines the majority s contention that it must presume that the legislature was aware that individual donors might contribute to both the campaign committee of a candidate for the office of lieutenant governor and to the campaign committee of a candidate for the office of governor and that the legislature s silence in the face of that presumption validates its interpretation of § 9-704 (a) (1). See part II of the majority opinion. Furthermore, if the majority s presumption is accepted, then the senator s statement indicates his understanding that both gubernatorial candidate committees and joint campaign committees under § 9-704 (a) (1) would be subject to the same $100 individual contribution limitation. 4 General Statutes § 9-717 (b) provides: Any candidate who has received any funds pursuant to the provisions of sections 1-100b, 9-700 to 9-716, inclusive, 9-750, 9-751 and 9-760 and section 49 of public act 05-5 of the October 25 special session prior to any such prohibition or limitation taking effect may retain and expend such funds in accordance with said sections unless prohibited from doing so by the court. That statute has not been the subject of judicial scrutiny and is not at issue in this appeal.

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