Bortner v. Town of Woodbridge 736 A.2d 104 736Conn. A.2d 241, 104 736 A.2d 104, 137 Ed. Law Rep. 1019 250 250 Conn. 736241, A.2d736 104, 137104) Ed. Law Rep. 1019 (Cite as: 250241, Conn. A.2d (Cite as: 250 Conn. 241, 736 A.2d 104) Court of Connecticut. the duty Supreme of the trial court to elevate integrity and Steven BORTNER accuracy over stability. To the extent that the majority opinion contains v. innuendo to the contrary, it TOWN OF WOODBRIDGE et al. should be disregarded. No. 16114. I also write separately in order to take several steps Argued back from the factsJune of 11, the 1999. controversy that is Decided 1999. of § 9-328, the presently before us. Aug. In the17, context majority adopts a plenary standard of review, purUnsuccessful write-in candidate suant to which we do not defer tofortheelementary trial court's board of education brought action against redetermination regarding the integrity andtown, accuracy gistrars of voters, and successful candidates, chalof an election. Viewed in isolation, this is a perlenging election results based on alleged voting fectly sensible decision; indeed, it is one that Imajoin chine malfunctions. The Superior Court, Judicial without reservation. Viewed alongside other reDistrict of New Haven, Pittman, J., ordered newno cent decisions, however, it makes absolutely election. Defendants appealed. The Supreme Court, sense. Borden, J., held that: (1) trial court abused its discretion in refusing to open evidence to consider The majority correctly observes that "the question election records and (2) newor of whether to offered give ... by a defendants, trial court deferential election not warranted. plenarywas review is really a question of judicial policy." As a matter of judicial policy, I agree that Reversed remanded with direction. vacatingand an election is serious business, and that we should scrutinize rigorously a trial court's determinBerdon, J., concurred and filed opinion. ation that it is appropriate to do so. I also believe, however, that weWest should scrutinize rigorously other Headnotes judicial rulings that [1] Elections 8.1 implicate fundamental rights under the constitution. 144k8.1 Most Cited Cases My colleagues in the majority disagree with me, for thattrue theyand are Purpose of election statutes is toreasons ensure the unable to explain to my satisfaction. most accurate count possible of votes for candidates in the election. *279 I will limit myself to a single, illustrative example. "The conventional [2] Elections 227(8) wisdom among AfricanAmericans and other is that they are not 144k227(8) Most Citedminorities Cases treated fairly throughout the judicial system beWhen individual ballot is questioned, no voter is to cause of their race. To put it plainly, minorities bebe disfranchised on a doubtful construction, and lieve that the tojudicial system ofisballot stacked against statutes tending limit exercise should be them. This perception is heightened when the state liberally construed in his or her favor. eliminates minorities from juries by exercising peremptory challenges [3] Elections 298(1)based upon the race of venirepersons. The United 144k298(1) Most Cited Cases States Supreme Court recognized fact when stated: responsibility '[W]e have not Election lawsthis generally vestit primary questioned the intent premise discrimination for ascertaining andthat willracial of voters on electionin the qualification selection of jurorsscope offends the officials, subject toorcourt's appropriate of redignity of persons and the integrity of the courts. Despite the clarity of [constitutional] commands to eliminate the taint of racial discrimination in the Page 1 Page 24 view when officials' determination is challenged in a administration judicial proceeding. of justice, allegations of bias in the jury selection process persist.' [FN1] **125Powers [4] 227(1) v. Elections Ohio, 499 U.S. 400, 402, 111 S.Ct. 1364, 113 144k227(1) Most Cited L.Ed.2d 411 (1991)." Cases State v. Hodge, 248 Conn. No losing candidate is entitled to the (Berdon, electoral J., equi207, 269-70, 726 A.2d 531 (1999) disvalent of a "mulligan," which is a free shot somesenting). times awarded to a golfer in nontournament play when preceding shot was poorly FN1. "[T]his court andplayed. the Appellate Court have reviewed claims of purposeful dis[5] Elections 298(3) crimination in the exercise of peremptory 144k298(3) Most Cited challenges inCases [twenty] cases. Neither (Formerly 144k227(1)) court, however, has ever found impermissTo secure ible judicial order for new municipal discrimination in the exerciseelection, of a perchallengeremptory is not required to establish that, but for challenge, a statistical fact that irregularities that he has established as a factual lends credence to the public perception matter, hethat would have prevailed in election; inour judicial system fosters discriminastead, court must State be persuaded that 248 (1) there tion." v. Hodge, Conn.were 207, substantial272-73, errors in rulings of election official 726 A.2d 531 (1999) (Berdon,orJ., officials, or substantial mistakes of votes, dissenting); see Statein count v. King, 249 and (2) asConn. a result of those errors or mistakes, reli645, 691 n. 2, 735 A.2d 267 (1999) ability of (Berdon, result of election, as determined by elecJ., dissenting). tion officials, is seriously in doubt. C.G.S.A. § 9-328. Oblivious to the perception of injustice along the vector of race, the majority of this court has de[6] Elections termined that--as 305(2) a matter of judicial policy--it will 144k305(2) Most Cited Cases review Batson /Holloway claims [FN2] with "great Although underlying facts are to be established by a deference," and will not disturb a trial court's ruling preponderance of evidence and are subject on "unless it is clearly *280 erroneous." Id., at ap224, peal the clearly erroneous standard, 726toA.2d 531. In the present case, ultimate however,dethe termination of whether, based on underlying facts, a majority has decided to scrutinize rigorously the trinew municipal election is called for, that is, whethal court's ruling, pursuant to the robust standard of erplenary there were substantial violations of statuteinaureview. Apparently, my colleagues the thorizing court to order new election that render remajority believe that a new election for the Woodliability result of election seriously in doubt, isthan a bridge of elementary school is more important mixed question of fact and law that is subject to the perception among African-Americans that the plenary review on white appeal.legal C.G.S.A. § 9-328; Pracoverwhelmingly system--which once tice Book 1998, § 60-5. enforced and legitimized both slavery and segregation--continues to discriminate against them. I am [7] Statutes 181(1) simply bewildered. 361k181(1) Most Cited Cases FN2. By raising a Batson/Holloway claim, [7] Statutes 188 the defendant asserts that the trial court 361k188 Most Cited Cases improperly permitted the state to exclude a venireperson from the jury on the basis of race. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), 193 © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.