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) Supreme Court of Connecticut. regarding that intent, we do regard this colBORTNER loquy Steven as relevant to the meaning of § 9-328. First, v. this colloquy took place in TOWN OF WOODBRIDGE al. the context of an enacted et amendment to 16114. Second, the judicial the statuteNo. at issue. power provided by that amendment bore Argued June 11, 1999. directly on the scope of that power, albeit Decided Aug. 17, 1999. enacted in an earlier year. Third, it is apparent from the pointed language of the Unsuccessful write-in candidate for elementary colloquy that the participants intended it to board of education brought action against town, rebe used as indicative of legislative intent gistrars of voters, and successful candidates, chalregarding the scope of that power. lenging election results based on alleged voting machine malfunctions. The§ 9-328, Superior Judicialof Finally, in interpreting weCourt, are cognizant District of New Haven, Pittman, J., ordered new the delicate balance of interests at stake in the electelection. Defendants appealed. The Supreme Court, oral process. Taking into account the legislative Borden, J., its held that: (1) and trialhistory, court abused dislanguage, genealogy and theits balance cretion in refusing to open evidence to consider of interests involved, we glean the following standelection offered defendants, andto (2)order new a ard thatrecords must be met inbyorder for a court election was notpursuant warranted. new election to § 9-328. The court must be persuaded that: (1) there were substantial errors Reversed and remanded with direction. in the rulings of an election official or officials, or substantial mistakes and in the count of the votes; and Berdon, J., concurred filed opinion. (2) as a result of those errors or mistakes, the reliability of the result the election, as determined WestofHeadnotes byElections the election officials, is seriously in doubt. [1] 8.1 144k8.1 Most Cited Cases We next scope of ensure reviewthe regarding Purpose of address election our statutes is to true and a decision by a trial court to order, or to decline to ormost accurate count possible of votes for candidates new election pursuant to § 9-328. We coninder, the aelection. clude that the underlying historical facts as found byElections the trial court227(8) are, of course, subject on review [2] to the clearly standard. See Practice 144k227(8) Mosterroneous Cited Cases Bookindividual § 60-5. Beyond however, conclude When ballot is that, questioned, nowe voter is to **117 whether rulings of an election and offibethat disfranchised on any a doubtful construction, cial or tending mistakestoinlimit the exercise count of of votes were substanstatutes ballot should be tial, andconstrued whether in thehisresult the election is seriliberally or heroffavor. ously in doubt, are questions that call for plenary [3] Elections review on appeal.298(1) 144k298(1) Most Cited Cases These questions are most characterized, Election laws generally vestaccurately primary responsibility notascertaining as either questions fact or as questions for intent and of will of voters on electionof law, butsubject as the hybrid mixed questions of fact and officials, to court's appropriate scope of relaw. Although *264 throughout the law there are various mixed questions that call for differing scopes of appellate review and, therefore, applying Page 1 Page 16 view when officials' determination is challenged in a the judicial labelproceeding. does not necessarily yield the answer; see, e.g., Copas v. Commissioner of Correction, 234 [4] Elections 227(1) Conn. 139, 152-53, 662 A.2d 718 (1995) (mixed 144k227(1) Most Cited Cases question of law and fact yielding plenary review); No losing candidate is entitled to theInc. electoral equiPlastic Tooling Aids Laboratory, v. Commisvalent of a "mulligan," which is a free shot somesioner of Revenue Services, 213 Conn. 365, 369, times awarded a golfer in nontournament play 567 A.2d 1218to(1990) (mixed question of law and when preceding shot was poorly played. fact yielding review under clearly erroneous standard); the question of whether to give such a mixed [5] Elections 298(3) determination by a trial court deferential or plenary 144k298(3) Most Cited Cases review is really a question of judicial policy. Miller (Formerly 144k227(1)) v. Fenton, 474 U.S. 104, 114, 106 S.Ct. 445, 88 To secure judicial order for new municipal election, L.Ed.2d 405 (1985) (when "the issue falls somechallenger is not required to establish that, but for where between a pristine legal standard and a irregularities that he has established as a factual simple historical fact, the fact/law distinction at matter, he would have prevailed in election; intimes has turned on a determination that, as a matstead, court must be persuaded that (1) there were ter of the sound administration of justice, one judisubstantial errors in rulings of election official or cial actor is better positioned than another to decide officials, or substantial mistakes in count of votes, the issue in question"). The importance of the and (2) as a result of those errors or mistakes, relidemocratic interests at stake, the importance of seeability of result of election, as determined by elecing that the balance of those interests is struck tion officials, is seriously in doubt. C.G.S.A. § properly in any given case, and the delicacy of the 9-328. question of judicial intrusion into the electoral process, persuade us305(2) that a plenary scope of review is [6] Elections appropriate. 144k305(2) Most Cited Cases Although underlying facts are to be established by a III preponderance of evidence and are subject on apWith these background principles and standards in peal to the clearly erroneous standard, ultimate demind, we turn to the defendants' specific claims on termination of whether, based on underlying facts, a appeal. We first consider their claim that the trial new municipal election is called for, that is, whethcourt abused its discretion in denying their motion er there were substantial violations of statute auto open the evidence. We agree with the defendthorizing court to order new election that render reants. We conclude that, under the circumstances of liability of result of election seriously in doubt, is a this case, the court should have opened the evidmixed question of fact and law that is subject to ence to consider the documentary evidence that the plenary review on appeal. C.G.S.A. § 9-328; Pracdefendants sought to offer. We further conclude tice Book 1998, § 60-5. that the undisputed facts disclosed by those documents wholly undermine [7] Statutes 181(1) a critical finding of the trial court regarding voting 361k181(1) Most Cited Cases machine *265 number 107017, namely, that this machine, which was taken out of service [7] Statutes 188 at 6:30 p.m., had been out of paper since leastCases 8:30 a.m. on election day, and 361k188 MostatCited that, therefore, that finding must be disregarded. [9][10][11] "Whether or not a trial court will per185 © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.