Appendix — Seymour v. Connecticut Elections Enforcement Commission

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APPENDIX A

Connecticut Appellate Decisions

SEYMOUR v. ELECTIONS ENFORCEMENT COMM.,

255 Conn. 78 (2000)

mee | as

GABRIEL SEYMOUR ET AL. v. ELECTIONS

ENFORCEMENT COMMISSION

(SC 16167)

Supreme Court of Connecticut

McDonald, C.J., and Borden, Norcott, Palmer and Sullivan,

Js.

David R. Schaefer, with whom, on the brief, was Whitney

North Seymour, Jr., for the appellants (plaintiffs).

Eliot D. Prescott, assistant attorney general, with whom,

on the brief, were Richard Blumenthal, attorney general, and

Carolyn K. Querijero, assistant attorney general, for the ap-

pellee (defendant).

Martin B. Margulies and Philip D. Tegeler filed a brief for

the Connecticut Civil Liberties Union Foundation as amicus

curiae.

Opinion

NORCOTT, J.

This case raises important questions regarding the consti-

tutionality of Connecticut's political advertising disclosure

laws and the commission created to enforce them. After an

evidentiary hearing, the defendant, the state elections en-

forcement commission (commission), found that the plaintiffs,

Gabriel Seymour and Robert Reid, had violated certain cam-

paign finance laws. The plaintiffs appealed from the decision

of the commission to the trial court. The trial court affirmed

the commission’s finding that the plaintiffs had violated the

campaign law in question and its order that they were hence-

forth to comply with the statute, and accordingly, dismissed

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the plaintiffs’ appeal. This appeal followed.' We affirm the

judgment of the trial court.

The following facts are relevant to our disposition of this

appeal. This case arises out of the plaintiffs’ 1997 campaign

for the position of first selectman and a position on the board

of selectmen of Falls Village, respectively. On September 3, ©

1997, and again on September 12, 1997, the plaintiffs released

Statements to local newspapers with the intention that the

statements be published. The plaintiffs prepared each

statement on a personal computer and faxed the documents to

at least three local newspapers. The expenses associated with

the statements were shared equally by the plaintiffs. Although

the statements contained both plaintiffs’ names and telephone

numbers, neither statement indicated who had paid for them.

On September 18, 1997, and again on October 8, 1997,

James P. McGuire filed complaints’ with the commission

claiming that the plaintiffs had failed to include the “paid for

by” attribution requirement, as mandated by General Statutes

§ 9-333w (a).° These complaints remained pending throughout

' The plaintiffs appealed from the judgment of the trial court to the Ap-

pellate Court, and we transferred the appeal to this court pursuant to

Practice Book § 65-1 and General Statutes § 51-199 (c).

* Collectively, these complaints have come to be known as the McGuire

complaints. There is some confusion as to the actual dates that the com-

plaints were filed. The other dates referred to, September 16, 1997, and

October 2, 1997, are the dates listed on McGuire's affidavits. Those affi-

davits then were filed with the commission on September 18, 1997, and

October 8, 1997.

An additional complaint also was lodged prior to the McGuire com-

plaints. The DeMazza complaint, as it was known, eventually was discon-

tinued after voluntary payment of a $100 penalty by a respondent, other

than either plaintiff, and is not the subject of this appeal.

* General Statutes § 9-333w (a) provides: “No individual shall make or

incur any expenditure with the cooperation of, at the request or sugges-

tion of, or in consultation with any candidate, candidate committee or

~ candidate’s agent, and no candidate or committee shall make or incur any

expenditure for any written, typed or other printed communication which

promotes the success or defeat of any candidate’s campaign for nomination

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the duration of the campaign. On November 4, 1997, Seymour

was elected first selectman, and Reid was unsuccessful i in his

bid for second selectman.*

On January 14, 1998, a commission hearing officer con-

ducted a contested evidentiary hearing. A report was issued

on March 3, 1998. The report stated that the plaintiffs’ failure

to list the identity and address of the paying party accom-

panied by the words “paid for by” constituted a “technical”

violation of § 9-333w. The commission adopted the report of

the hearing officer and ordered the plaintiffs henceforth to

comply with the statute. The trial court dismissed the plain-

tiffs’ appeal from the decision of the commission.

The plaintiffs’ appeal from the judgment of the trial court

raises the following issues: (1) whether the disclosure require-

ments of § 9-333w violate the first and fourteenth amend-

ments to the United States constitution, thereby rendering the

statute void and unenforceable; (2) whether the alleged delay

of any hearing or decision by the commission until after the

election, coupled with the alleged assertions, by the com-

mission, of the statutory violation by the plaintiffs, violated

the plaintiffs’ constitutional rights under the first, fifth and

fourteenth amendments to the United States constitution; and

(3) whether operational control of the commission’s enforce-

ment activities by a dominant majority of legislative political

appointees, as provided by Genera! Statutes §§ 9-7a and 9-

7b,° violates Connecticut’s separation of powers doctrine.

at a primary or election or solicits funds to benefit any political party or

committee unless such communication bears upon its face the words ‘paid

for by’ and the following: (1) In the case of such an individual, the name

and address of such individual; (2) in the case of a committee other than a

party committee, the name of the committee and its campaign treasurer;

or (3) in the case of a party committee, the name of the committee.”

* Reid actually tied his opponent in votes, but did not take office for rea-

sons that are not relevant to this appeal.

* General Statutes § 9-7a (a) provides in relevant part: “There is estab-

lished a State Elections Enforcement Commission to consist of five mem-

bers, not more than two of whom shall be members of the same political

party and at least one of whom shall not be affiliated with any political

4

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We conclude that: (1) § 9-333w is constitutional; (2) the al-

leged delay did not violate the plaintiffs’ constitutional rights;

and (3) §§ 9-7a and 9-7b do not violate our separation of

powers doctrine. Accordingly, we affirm the trial court’s judg-

ment.

party. Of the members first appointed hereunder, one shall be appointed

by the minority leader of the House of Representatives and shall hold

office for a term of one year from July |, 1974; one shall be appointed by

the minority leader of the Senate and shall hold office for a term of three

years from said July first; one shall be appointed by the speaker of the

House of Representatives and shall hold office for a term of one year

from said July first; one shall be appointed by the president pro tempore

of the Senate and shall hold office for a term of three years from said July

first, and one shall be appointed by the Governor, provided that such

member shall not be affiliated with any political party, and shall hold

office for a term of five years from said July first... .”

General Statutes § 9-7b (a) provides in relevant part: “The State Elec-

tions Enforcement Commission shall have the following duties and powers:

“(1) To make investigations on its own initiative or with respect to

statements filed with the commission by the Secretary of the State

or any town clerk, or upon written complaint under oath by any in-

dividual, with respect to alleged violations of any provision of the

general statutes relating to any election or referendum, any primary

held pursuant to section 9-423, 9-424, 9-425 or 9-464 or any pri-

mary held pursuant to a special act, and to hold hearings when the

commission deems necessary to investigate violations of any pro-

visions of the general statutes relating to any such election, primary

or referendum, and for the purpose of such hearings the commis-

sion may administer oaths, examine witnesses and receive oral and

documentary evidence, and shall have the power to subpoena wit-

nesses under procedural rules the commission shall adopt, to compel

their attendance and to require the production for examination of

any books and papers which the commission deems relevant to any

matter under investigation or in question. . . .

“(2) To levy a civil penalty. . .. The commission may levy a civil

penalty against any person under subparagraph (A) or (B) of this

subdivision only after giving the person an opportunity to be heard

at a hearing conducted in accordance with sections 4-1 76e to 4-184,

inclusive... .”

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I

The essence of the first issue is whether the disclosure re-

quirements set forth in § 9-333w unconstitutionally burden

the plaintiffs’ right to free speech. The United States Supreme

Court has repeatedly held that political speech is at the nucleus

of the protection afforded by the first amendment. “Discussion

of public issues and debate on the qualifications of candidates

are integral to the operation of the system of government es-

tablished by our Constitution. The First Amendment affords

the broadest protection to such political expression in order ‘to

assure [the] unfettered interchange of ideas for the bringing

about of political and social changes desired by the people.’

Roth v. United States, 354 U.S. 476, 484 [77 S.Ct. 1304, 1

L.Ed.2d 1498] (1957). Although First Amendment protections

are not confined to ‘the exposition of ideas,’ Winters v. New

York, 333 U.S. 507, 510 [68 S.Ct. 665, 92 L.Ed. 840] (1948),

‘there is practically universal agreement that a major purpose

of that Amendment was to protect the free discussion of gov-

ernmental affairs . . . of course includ[ing] discussions of

candidates. . . .’ Mills v. Alabama, 384 U.S. 214, 218 [86

S.Ct. 1434, 16 L.Ed.2d 484] (1966). This no more than re-

flects our ‘profound national commitment to the principle that

debate on public issues should be uninhibited, robust, and

wide-open,’ New York Times Co. v. Sullivan, 376 U.S. 254,

270 [84 S.Ct. 710, 11 L.Ed.2d 686] (1964). In a republic

where the people are sovereign, the ability of the citizenry to

make informed choices among candidates for office is essen-

tial, for the identities of those who are elected will inevitably

shape the course that we follow as a nation. As the Court

observed in Moniter Patriot Co. v. Roy, 401 U.S. 265, 272 [91

S.Ct. 621, 28 L.Ed.2d 35] (1971), ‘it can hardly be doubted

that the constitutional guarantee has its fullest and most ur-

gent application precisely to the conduct of campaigns for

political office.” Buckley v. Valeo, 424 U.S. 1, 14-15, 96

S.Ct. 612, 46 L.Ed.2d 659 (1976).

Political speech is given the highest level of scrutiny under

our rubric of judicial review. “When a law burdens core poli-

tical speech, we apply ‘exacting scrutiny,’ and we uphold the

‘

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restriction only if it is narrowly tailored to serve an over-

riding state interest.” McIntyre v. Ohio Elections Commission,

514 U.S. 334, 347, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995);

see also First National Bank of Boston v. Bellotti, 435 U.S.

765, 786, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978). Because the

statute at issue in the present case requires that certain in-

formation be included within the distributed material, i.e., the

identity of the person paying for the distributed material,

it necessarily regulates the content of speech. As a result, the

limitation on political expression is subject to exacting scru-

tiny. See Meyer v. Grant, 486 U.S. 414, 420, 108 S.Ct. 1886,

100 L.Ed.2d 425 (1988).

The Supreme Court previously has “acknowledged that

there are governmental interests sufficiently important to out-

weigh the possibility of infringement [upon the first amend-

ment], particularly when the ‘free functioning of our national

institutions’ is involved.” Buckley v. Valeo, supra, 424 U.S.

66, quoting Communist Party v. Subversive Activities Control

Board, 367 U.S. 1, 97, 81 S.Ct. 1357, 6 L.Ed.2d 625 (1961).

The court has noted that, “[dJjespite the ritualistic ease with

which we state this now-familiar [exacting scrutiny] standard,

its announcement does not allow us to avoid the truly difficult

issues involving the First Amendment. Perhaps foremost

among these serious issues are cases that force us to reconcile

our commitment to free speech with our commitment to other

constitutional rights embodied in governmental proceedings.”

Burson v. Freeman, 504 U.S. 191, 198, 112 S.Ct. 1846, 119

L.Ed.2d 5 (1992).. The present case requires such a reconcil-

lation.

The statutory scheme at issue seeks to balance an indivi-

dual’s right to free speech with the public’s interest in ensur-

ing fair and honest elections. Although an individual’s right

to free speech is well known and widely publicized, the state’s

obligation to safeguard the electoral process is frequently ne-

glected, although it, too, is of great import. Because of the

critical role that elections play in our democratic society, the

Supreme Court has recognized “that a State indisputably has

a compelling interest in preserving the integrity of its election

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process. . . . The Court thus has upheld generally applicable

and evenhanded restrictions that protect the integrity and re-

liability of the electoral process itself. . . . In other words,

it has recognized that a State has a compelling interest in en-

suring that an individual’s right to vote is not undermined by

fraud in the election process.” (Citations omitted; internal quo-

tation marks omitted.) Id., 199. Indeed, “there must be a sub-

stantial regulation of elections if they are to be fair and honest

and if some sort of order, rather than chaos, is to accompany

the democratic processes.” Storer v. Brown, 415 U.S. 724,

730, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974); see also Buckley

v. American Constitutional Law Foundation, Inc., 525 U.S.

182, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999). It is with these

two overriding, and sometimes competing, liberties in mind

that we subject Connecticut’s disclosure statute to a strict

scrutiny evaluation.

The commission justifies its restriction with four compel-

ling state interests. First, it claims that the state has a com-

pelling interest in preventing actual or perceived corruption

in candidate elections. The commission next asserts that the

state has a compelling interest in enforcing other constitu-

tional campaign finance laws. The commission’s third claimed

compelling interest is based on the importance of informing

voters about candidates in an election for public office.

Finally, the commission maintains that preventing fraud and

libel is a valid compelling state interest. We address each

asserted interest seriatim.

]

The commission first claims that it has a compelling in-

terest in preventing actual or perceived corruption in candi-

date elections. We agree.

In the landmark election law case of Buckley v. Valeo, su-

pra, 424 U.S. 67, the United States Supreme Court explicitly

concluded that eliminating corruption in candidate elections

is a substantial state interest. See also Nixon v. Shrink Mis-

souri Government PAC, 528 U.S. __, 120 S.Ct. 897, 903-

905, 145 L.Ed.2d 886 (2000); Federal Election Commission

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v. National Conservative Political Action Committee, 470

U.S. 480, 497, 105 S.Ct. 1459, 84 L.Ed.2d 455 (1985). The

court explained that “[a] public armed with information about

a candidates’s most generous supporters is better able to detect

any post-election special favors that may be given in return.

... Congress could reasonably conclude that full disclosure

during an election campaign tends to prevent the corrupt use

of money to affect elections.” (Citation omitted; internal quo-

tation marks omitted.) Buckley v. Valeo, supra, 67.

The plaintiffs contend, however, that the United States Su-

preme Court's decision in McJntyre v. Ohio Elections Com-

mission, supra, 514 U.S. 334, rejected the Buckley reasoning.

In Mcintyre, the petitioner had distributed unsigned, and hence

anonymous leaflets to individuals attending a public meeting

at a town middle school. The leaflets expressed her oppo-

sition to a proposed tax levy that was to be discussed that

evening. Id., 337. A school official eventually filed a com-

plaint, charging that her distribution of unsigned leaflets vio-

lated Ohio state election laws, which prohibited anonymous

pamphleteering. Id., 338. The state elections enforcement com-

mission agreed and imposed a $100 fine. Id. The Supreme

Court struck down the statute as an unconstitutional abridge-

ment of the petitioner's right to freedom of speech. Id., 357.

The statute at issue in McIntyre applied to referenda and

other issue-based ballot measures, as well as to candidate

elections.® In striking down the statute, the court in Mcintyre

*“Ohio Rev. Code Ann. § 3599.09(A) (1988) provides [in relevant part):

“No person shall write, print, post or distribute, or cause to be written,

printed, posted, or distributed, a notice, placard, dodger, advertisement,

sample ballot, or any other form of general publication which is designed

to promote the nomination or election or defeat of a candidate, or to pro-

mote the adoption or defeat of any issue, or to influence the voters in any

election, or make an expenditure for the purpose of financing political

communications through newspapers, magazines, outdoor advertising fa-

cilities, direct mailings, or other similar types of general public political

advertising. or through flyers, handbills, or other nonperiodical printed

matter, unless there appears on such form of publication in a conspicuous

place or is contained within said statement the name and residence or

business address of the chairman, treasurer, or secretary of the organiza-

ee

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specifically stated that, “[i]n candidate elections, the Govern-

ment can identify a compelling state interest in avoiding the

corruption that might result from campaign expenditures.

Disclosure of expenditures lessens the risk that individuals

will spend money to support a candidate as a quid pro quo

for special treatment after the candidate is in office. Curriers

of favor will be deterred by the knowledge that all expen-

ditures will be scrutinized by the Federal Election Commis-

sion and by the public for just this sort of abuse.” Id., 356.

The Supreme Court specifically noted, however, that refer-

enda and other issue-based ballot measures would not breed

the same opportunities for corruption. Id., 352 n. 15. In those

situations, there are no elected officials beholden to those

who supported the candidate during the campaign. “The risk

of corruption perceived in cases involving candidate elec-

tions ... simply is not present in a popular vote on a public

issue.” (Citations omitted.) First National Bank of Boston v.

Bellotti, supra, 435 U.S. 790.

Mindful of this precept, we note that, by its terms, §9-333w

(a) is limited to elections and party-related solicitations. There

is no indication that the disclosure statute applies to referenda

or other issue-based ballot measures. Furthermore, in the pre-

sent case, it was applied only to a candidate election. Thus,

the first amendment concerns that the United States Supreme

Court expressed in McIntyre are inapplicable here. Accor-

dingly, the prevention of actual and perceived corruption in

candidate elections is a compelling and valid state interest.

2

Second, the commission contends that the attribution re-

quirement directly advances the state's ability to investigate

and enforce other campaign finance laws that are. in fact,

constitutional. This interest was also upheld by the Supreme

tion issuing the same, or the person who issues, makes, or is responsible

therefor... ..” McIntyre v. Ohio Elections Commission, supra, 514 U.S.

338 n. 3.

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Court in Buckley. There, the court stated that “record-keeping,

reporting, and disclosure requirements are an essential means

of gathering the data necessary to detect violations of the

contribution limitations. . . .” Buckley v. Valeo, supra, 424

U.S. 67-68. Moreover, although the enforcement interest was

not directly called into question in Mcintyre, the court never-

theless acknowledged that enforcing other laws may be a

valid interest under some circumstances. “We recognize that

a State’s enforcement interest might justify a more limited

identification requirement, but Ohio has shown scant cause

for inhibiting the leafletting at issue here.” McJntyre v. Ohio

Elections Commission, supra, 514 U.S. 353.

We are persuaded that Connecticut’s disclosure require-

ments assist the commission in its investigative function. The

state points out that political action committees are prohibited

from donating more than $5000 to candidates for the office

of governor in, an upcoming election. See Genera! Statutes

§ 9-3330(d)(1).’ During campaigns, however, candidates often

send mass mailings at a substantial cost. The attribution re-

quirement allows the commission to monitor strictly who is

paying these costs, thereby ensuring that political action com-

mittees are not exceeding their statutory contribution limits.

Furthermore, the attribution requirement assists in moni-

toring self-funded campaigns. Self-funded campaigns are not

subject to the same guidelines as campaigns funded by dona-

tions. The attribution requirement provides the commission

with another way to ensure that campaign literature is funded,

not from third parties, but from the candidates themselves.

Both of these examples demonstrate how the attribution re-

quirement allows the commission to enforce election laws

while limiting the time, effort and financial resources neces-

sarily consumed during the investigation. For these reasons,

” General Statutes § 9-3330 (d) provides in relevant part: “A political

committee organized by a business entity shall not make a contribution or

contributions to or for the benefit of any candidate’s campaign for nomin-

ation at a primary or any candidate’s campaign for election to the office

of: (1) Governor, in excess of five thousand dollars. . . .”

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we conclude that investigating and enforcing other consti-

tutional campaign finance laws is a valid compelling state

interest.

3

The commission next claims that the state has a compel-

ling interest in informing voters about candidates in an elec-

tion for public office. This has been an evolving issue.

In McIntyre, the court clearly rejected the informational

interest when it announced: “Insofar as the interest in infor-

ming the electorate means nothing more than the provision of

additional information that may either buttress or undermine

the argument in a document, we think the identity of the

speaker is no different from other components of the docu-

ment’s content that the author is free to include or exclude.

... The simple interest in providing voters with additional

relevant information does not justify a state requirement that

a writer make statements or disclosures she would otherwise

omit.” (Citation omitted.) McIntyre v. Ohio Elections Com-

mission, supra, 514 U.S. 348. The court reasoned that “[pJeople

are intelligent enough to evaluate the source of an anony-

mous writing.” Id., 348 n. 11. The manner in which the court

in McIntyre disposed of the informational interest, however,

is contrary to the court’s previous handling of this issue.

In Buckley, the Supreme Court expressly held the informa-

tional interest to be compelling, and therefore recognized it

as sufficient to validate disclosure requirements with regard

to candidate elections. The court announced that “disclosure

provides the electorate with information as to where political

campaign money comes from and how it is spent by the

candidate in order to aid the voters in evaluating those who

seek federal office. It allows voters to place each candidate in

the political spectrum more precisely than is often possible

solely on the basis of party labels and campaign speeches.

The sources of a candidate’s financial support also alert the

voter to the interests to which a candidate is most likely to be

responsive and thus facilitate predictions of future perfor-

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mance in office.” (Internal quotation marks omitted.) Buckley

v. Valeo, supra, 424 U.S. 66-67.

The court reaffirmed the validity of this interest two years

later in Bellotti. The court explained that citizens of our de-

mocratic society are responsible for evaluating conflicting

messages, but that, in making such evaluations, they may con-

sider the source and credibility of the advocate. First Na-

tional Bank of Boston v. Bellotti, supra, 435 U.S. 791-92. The

court stated: “Corporate advertising, unlike some methods of

participation in political campaigns, is likely to be highly

visible. Identification of the source of advertising may be

required as a means of disclosure, so that the people will be

able to evaluate the arguments to which they are being sub-

jected.” Id., 792 n. 32.

In McIntyre, the court distinguished these cases by explain-

ing that, when independent expenditures are involved, the

State's interest in informing its electorate are not served sig-

nificantly by requiring disclosure. “[{I]n the case of a handbill

written by a private citizen who is not known to the recipient,

the name and address of the author add little, if anything,

to the reader’s ability to evaluate the document’s message.”

McIntyre v. Ohio Elections Commission, supra, 514 U.S. 348-

49. In specific response to the informational interest substan-

tiated by Buckley and Bellotti, the court in McIntyre explained

that “[t]hose comments concerned contributions to the candi-

date or expenditures authorized by the candidate or his

responsible agent. They had no reference to the kind of inde-

pendent activity pursued by [the petitioner].” Id., 354. Thus,

in distinguishing itself from Buckley and Bellotti, the court in

McIntyre nonetheless preserved the legitimacy of the infor-

mational interest in cases not involving independent expen-

ditures.

There is a fundamental difference between the situation

in McIntyre and a disclosure statute, like § 9-333w, that is

limited to candidate elections. Section 9-333w (a) does not

present the possibility that a private individual would be com-

pelled to disclose her identity when that information would

“add little, if anything, to the reader’s ability to evaluate the

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document’s message.” Id., 349. We trust that Connecticut’s

disclosure requirement fairly enables voters to evaluate better

the message and its source. In addition, we note that § 9-

333w (a) applies to solicitations. Addressing a similar statute,

the United States Court of Appeals for the Second Circuit

upheld the informational interest as compelling as applied to

solicitations. The court stated: “McJntyre’s holding that simply

informing the electorate is not a sufficiently compelling in-

terest to justify a ban on anonymous campaign literature .. .

was based on the premise that the interest in informing the

electorate means nothing more than the provision of addi-

tional information that may either buttress or undermine the

argument in a document. . . . In this case, however, the gov-

ernment’s interest in identifying who paid for a solicitation

letter . . . goes significantly further: by avoiding any mis-

understanding as to the actual recipient of the solicited con-

tribution, [the statute] enables the solicitee to contribute

money to those groups which truly reflect his or her beliefs.

This is the sort of critical information that protects the inte-

grity of the electoral process.” (Citations omitted; internal

quotation marks omitted.) Federal Election Commission v.

Survival Education Fund, Inc., 65 F.3d 285, 297 (2d Cir.

1995). The Second Circuit’s reasons for upholding this in-

terest are equally applicable to the present case. We conclude

that the informational interest sought to be vindicated by Con-

necticut’s disclosure statute is compelling.

4

Finally, the commission claims that the state has a com-

pelling interest in preventing fraud and libel, and further, that

the statute serves to protect candidates. Although this interest

was insufficient under the facts of Mc/ntyre, the Supreme

Court left open the possibility that preventing fraud and libel

may be a valid compelling interest during the course of an

election. McIntyre v. Ohio Elections Commission, supra, 514

U.S. 349. The court admitted that Ohio’s interest in prevent-

ing fraud and libel “carries special weight during election

campaigns when false statements, if credited, may have ser-

ious adverse consequences for the public at large.” Id.

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The court determined, however, that Ohio has other elec-

tion laws that specifically prohibit the dissemination of false

statements during political campaigns. Id. “Thus, Ohio’s pro-

hibition of anonymous leaflets plainly is not its principal

weapon against fraud. Rather, it serves as an aid to enforce-

ment of the specific prohibitions and as a deterrent to the

making of false statements by unscrupulous prevaricators.”

Id., 350-51. Although the benefits provided by statute were

“legitimate,” they could not justify the regulation’s “ex-

tremely broad prohibition.” Id., 351.° On the contrary, Con-

necticut’s statutes do not contain a provision that specifically

prohibits fraud and libel during a campaign. Thus, Connec-

ticut relies more heavily on its disclosure statute to combat

the occurrence of these evils during a candidate election.

The amicus curiae claims that the availability of common-

law tort actions in Connecticut is sufficient protection against

fraud and libel. Although it is true that Mc/ntyre specifically

mentioned common-law actions as a means to assail the

harms brought on by fraud and libel, reliance on that case to

support the amicus’ assertion is misplaced. Although the court

in McIntyre noted that Ohio was able to rely on its common-

law tort of libel for protection, it made this reference as an

alternative to the statute at issue in that case.” Id., 350 n. 13.

Ohio’s direct ban on election fraud coupled with common-law

actions were deemed to be sufficient protection against such

evils. In the wake of these combined efforts, the anonymity

ban was nothing more than a supplement to serve this

* The Supreme Court stated: “Although these ancillary benefits are as-

suredly legitimate, we are not persuaded that they justify § 3599.09(A)’s

extremely broad prohibition.” Mcintyre v. Ohio Elections Commission,

supra, 514 U.S. 351.

° The court explained, “[t]o the extent those [election code] provisions

may be underinclusive, Ohio courts also enforce the common-law tort of

defamation.” McIntyre v. Ohio Elections Commission, supra, 514 U.S.

350-51 n. 13.

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interest.'° Id. Nothing in McIntyre suggests that the availa-

bility of common-law tort actions alone would constitute a

sufficient alternative means of preventing fraud and libel.

Moreover, the mere existence of a common-law remedy

does not, in itself, defeat the compelling interest served by

§ 9-333w (a). In enacting the disclosure statute, the legis-

lature had a specific purpose in mind. According to Jeffrey

Garfield, the then executive director and general counsel of

the commission, which was the proponent of the bill, the

statute was intended to have “the effect of promoting truth in

political advertising, and in improving the enforcement capa-

city of the commission.” Conn. Joint Standing Committee

Hearings, Government Administrations and Elections, Pt. 1,

1980 Sess., p. 72. We presume that the legislature, by enact- —

ing § 9-333w, deemed common-law tort remedies to be in-

sufficient to satisfy these needs. See State v. Nixon, 231

Conn. 545, 559, 651 A.2d 1264 (1995) (“[w]hen the legis-

lature acts, however, it is presumed to know the state of the

law”); Zachs v. Groppo, 207 Conn. 683, 696, 542 A.2d 1145

(1988) (“the legislature is presumed to have acted with know-

ledge of existing statutes and with an intent to create one con-

sistent body of laws’’). This is not to say that the legislature's

need to create the statute thereby renders it constitutional. We

conclude only that a void recognized by the legislature was

not being served by the then existing common law. In other

words, common-law tort remedies alone were deemed to be

insufficient to serve the interests protected by § 9-333w (a).

Connecticut’s disclosure statute is not duplicative of a

common-law tort remedy. Without it, a gap would be created

in the law where § 9-333w (a) once governed. Accordingly,

we conclude that the state’s interest in preventing fraud and

libel is justifiably served by the disclosure statute.

'° The Supreme Court noted: “Like other forms of election fraud, then,

Ohio directly attacks the problem of election-related libel; to the extent

that the anonymity ban serves the same interest, it is merely a supple-

ment.” McIntyre v. Ohio Elections Commission, supra, 514 U.S. 350-51

n. 13.

A-16

In this regard, the commission recently was involved in a

case that highlights the importance of preventing fraud and

libel, and how disclosure statutes work to protect candidates.

See State Elections Enforcement Commission, Stipulated

Agreement Containing Consent Order, File Nos. 98-167, 98-

169. During a certain campaign in 1998, written materials,

which did not contain the attnbution information, were circu-

lated containing the challenger’s name and telephone number,

and were made to appear as though they were distributed by

the challenger himself. Id. The materials also created the im-

pression that the challenger was working closely with an in-

dividual, who was publicly known to have a criminal record.

Id. After an investigation, the commission learned that the

materials were created by someone close to the incumbent’s

campaign. Id.

Thus, the attribution requirement works to prevent fraud

and libel and, specifically, protects candidates from unscru-

pulous attacks by requiring that those who seek to mislead

the electorate into thinking that the candidate has issued cer-

tain materials, disclose their identity. That disclosure require-

ment will serve as a disincentive to such misleading conduct.

Those working with candidates or campaigns risk violating

§ 9-333w (a) for failure to disclose the payor of the distri-

bution. Consequently, the attribution requirement works to

deter unethical tactics, because violators will be held publicly

accountable.

In sum, we conclude that the state has valid compelling in-

terests in preventing corruption, advancing the state’s ability

to investigate campaign finance laws, providing the elec-

torate with information, and deterring fraud and libel. These

interests, together and separately, justify the disclosure re-

quirement set forth in § 9-333w (a).

B

In accordance with the exacting scrutiny standard set forth

by McIntyre v. Ohio Elections Commission, supra, 514 U.S.

347, we now must determine whether § 9-333w (a) is nar-

rowly tailored to serve those state interests that we have found '

A-17

to be compelling. The court in McIntyre provided a list of fac-

tors that it considered in its determination that the Ohio statute

in question was unconstitutional. The court explained: “As this

case demonstrates, the prohibition encompasses documents

that are not even arguably false or misleading. It applies not

only to the activities of candidates and their organized sup-

porters, but also to individuals acting independently and using

only their own modest resources. It applies not only to elec-

tions of public officers, but also to ballot issues that present

neither a substantial risk of libel nor any potential appearance

of corrupt advantage. It applies not only to leaflets distributed

on the eve of an election, when the opportunity for reply is

limited, but also to those distributed months in advance. It ap-

plies no matter what the character or strength of the author’s

interest in anonymity.” Id., 351-52. With these criteria in mind,

we conclude that § 9-333w (a) is narrowly tailored to serve the

State’s interests.

A comparative analysis of the Ohio and Connecticut statutes

exposes critical distinctions, the most significant of which re-

veals that they apply to distinct categories of persons. The

Ohio statute prohibits anyone from distributing certain mate-

rials unless identified. The Connecticut statute applies only to

individuals associated in some way with a campaign.'' Thus,

the Connecticut statute requires disclosure of the identity of a

party paying for a distribution if that party is working at the

'' Ohio's statute prohibited anyone from writing or distributing any “pub-

lication which is designed to promote the nomination or election or defeat

of a candidate, or to promote the adoption or defeat of any issue, or to in-

fluence the voters in any election” unless the name of the party respon-

sible for or issuing the statement appears on the distribution. Ohio Rev.

Code Ann. § 3599.09(A) (1988). The Connecticut statute, however, pro-

vides that “[nJo individual shall make or incur any expenditure with the

cooperation of, at the request or suggestion of, or in consultation with any

candidate, candidate committee or candidate’s agent, and no candidate or

committee shall make or incur any expenditure for any . . . communi-

cation which promotes the success or defeat of any candidate’s campaign

for nomination at a primary or election or solicits funds to benefit any

political party or committee unless” the payor is identified. General Sta-

tutes § 9-333w (a).

A-18

direction of an election committee. It would not, however, re-

quire such disclosure by an individual who is not associated

with a campaign in any way. In other words, § 9-333w (a)

does not prevent or hinder an individual, acting independently,

from expressing her opinion in any manner. The critical dis-

tinction between candidates or their organized supporters and

independent individuals was noted by the Supreme Court in

Buckley’? and confirmed in Mcintyre. See id., 351 n. 14.

Furthermore, it is notable that the Ohio statute applied to

referenda, as well as to candidate elections. Referenda entail

the practice of submitting legislative proposals to popular

vote. Referenda, however, do not encompass the same dangers

as candidate elections. Id., 352-53 and 352 n. 15. Although

the opportunities to fashion disparaging remarks about one’s

opponent are prevalent during candidate elections, expres-

sions of opinion on referenda issues are unlikely to provide a

similar platform of negative commentary. Personal opinions

concerning the benefits or disadvantages of a proposal do not

result in comparable personal attacks. Consequently, the po-

tentially libelous and fraudulent statements that may hinder

a candidate’s chances of. attaining elective office are not of

equal concern in the arena of referenda. Indeed, the Second

Circuit Court of Appeals has discussed the difference between

candidate elections and referenda voting as it relates to cor-

porate contributions. “Corporate funds paid to a candidate or

political party have the potential of creating debts that must

be paid in the form of special interest legislation or adminis-

trative action. In contrast, when the issue is one to be resolved

by the public electorate monies paid by a corporation for

public expression of its views create no debt or obligation

on the part of the voters to favor the corporate contributor’s

special interest. Although large private companies have un-

'? The Supreme Court stated: “Treating these expenses as contributions

when made to the candidate’s campaign or at the direction of the candi-

date or his staff forecloses an avenue of abuse without limiting actions

voluntarily undertaken by citizens independently of a candidate’s cam-

paign.” Buckley v. Valeo, supra, 424 U.S. 37. The court went on to strike

down limitations on independent expenditures.

A-19

doubtedly been tempted to ‘buy’ the election of political

candidates in the expectation of receiving favors if their

candidates should be elected, it is difficult to see how such

motivation would play any substantial role in an attempt to

influence votes for or against a referendum.” Schwartz v.

Romnes, 495 F.2d 844, 851 (2d Cir. 1974).

Unlike Ohio’s disclosure statute, § 9-333w (a) concerns

only communication discussing candidates for election or the

solicitation of funds for political parties. Therefore, § 9-333w

(a) does not run afoul of the same obstacles on which the

Ohio statute foundered. In this way, Connecticut’s disclosure

statute is far more narrowly tailored than Ohio’s disclosure

Statute.

In holding that § 9-333w (a) is constitutional, we do not

thereby undermine the important role that anonymity has

played in American political culture. We acknowledge that

anonymous distribution of one’s ideas is not only protected

by the first amendment, but lies at the core of its existence. It '

is well established that “[t]he decision in favor of anonymity

may be motivated by fear of economic or official retaliation,

by concern about social ostracism, or merely by a desire to

preserve as much of one’s privacy as possible. . . . Accor-

dingly, an author’s decision to remain anonymous, like other

decisions concerning omissions or additions to the content of

a publication, is an aspect of the freedom of speech protected

by the First Amendment.” McIntyre v. Ohio Elections Com-

mission, supra, 514 U.S. 341-42. Similarly, in Talley v. Cali-

fornia, 362 U.S. 60, 64, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960),

the court held that the first amendment protects the distri-

bution of anonymous handbills urging a boycott of certain

local merchants. Although the importance of the right to

remain anonymous is indisputable, that does not mean that

anonymity is an absolute right. See Citizens Against Rent

Control v. Berkeley, 454 U.S. 290, 299-300, 102 S.Ct. 434, 70

L.Ed.2d 492 (1981) (noting that legislature may, under valid

circumstances, ban anonymous contributions): Buckley v. Va-

leo, supra, 424 U.S. 1 (upholding disclosure statutes).

A-20

Accordingly, we conclude that the present issue is readily

distinguishable from those presented by Mc/ntyre and Talley.

Section 9-333w (a) applies to candidates and those associated

with candidates, not persons unrelated to that candidacy. The

idea that a candidate has an absolute right to anonymous

speech when discussing the very issues that lie at the center

of her campaign is paradoxical. “There are inherent limita-

tions of a unique and significant nature regarding any claim

to the right of privacy on the part of candidates and incum-

bent public officials.” Fritz v. Gorton, 517 P.2d 911, 923

(Wash. 1974). Candidates, by their very nature, hope to gain

support by aligning themselves with particular issues. This

process necessarily calls for one to identify a named candi-

date, with that candidate’s public views. Thus, when candidate

speech is involved, fears of “retaliation” or “social ostracism”

are severely limited. A per se right to anonymity in this situ-

ation simply would be untenable.

Moreover, our state disclosure statute does not impede one’s

ability to contribute to a campaign, even if that individual

is associated with the campaign’s efforts. It is true that one

working in cooperation with a campaign, wishing to make a

contribution in the form of some written distribution, would

be required to disclose his identity. Other alternatives are

available, however, for one who wishes to refrain from having

his name printed on the distribution. This contributor is still

free to make a financial donation directly to the campaign

itself, thereby avoiding having his name listed on handbills.?

In addition, the plaintiffs’ contention that the statute’s ad-

dress requirement is not sufficiently narrow and impedes one’s

right to anonymity is groundless. The plaintiffs contend that,

if numerous public officials refrain from publishing their home

address and telephone number to avoid crank letters and van-

dals, then those subject to § 9-333w (a) are entitled to the same

anonymity. The plaintiffs’ argument, however, misses the

point. The address requirement adds a level of identification

'? Individual contributions, however, may also be subject to varying dis-

closure requirements. See, e.g., General Statutes § 9-333n (d) and (e).

A-21

in order to increase accountability. Although public officials

are not required to disclose their personal information, their

office contact information is public knowledge. One of the

foundations of our democratic society is that citizens have

the opportunity to contact their public officials and represen-

tatives directly through telephone calls and letters to the ap-

propriate office. The disclosure statute allows for the same

opportunity. Section 9-333w (a) requires only that an address

be listed. It does not require a personal or home address. By

mandating that an address be listed on distributions falling

within its ambit, § 9-333w (a) increases accountability, pro-

vides for contact information, and augments the likelihood of

gaining a proper identification of the payor. We therefore

conclude that the address requirement contained in § 9-333w

(a) does not render the statute overbroad, and further, that our

statute does not impede an individual, acting independently

of a campaign, from anonymous expression. !

* It is noteworthy that § 9-333w (a) was amended in 1995, in direct re-

sponse to the Supreme Court’s decision in Mc/ntyre. See Public Acts 1995,

No. 95-276. During discussions of the proposed amendment, then State

Representative Susan Bysiewicz explained: “This amendment is due to a

recent United States Supreme Court decision, which now requires Con-

necticut to revise its election laws with respect to attribution on political

campaign advertising and materials. This recent decision indicates that

attribution cannot be required when an individual acts independently to

finance political advertising. What we’re doing here in this amendment is

proposing to revise Connecticut law to create an exception so that indi-

vidual independent expenditures on leaflets and advertising would not

require such attribution.” 38 H.R. Proc., Pt. 15, 1995 Sess., p. 5473. Thus,

we see that the legislature amended its original attribution statute to com-

ply with McIntyre. We must presume that the legislature understood the

legal implications of Mc/ntvre and, therefore, modified § 9-333w (a) to

be in compliance with that case. See, e.g., State v. Nixon, supra, 231

Conn. 559 (“[w]hen the legislature acts . . . it is presumed to know the

state of the law”); Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 291, 627

A.2d 1288 (1993) (same); State v. Dabkowski, 199 Conn. 193, 201. 506

A.2d 118 (1986) (same). “Without question, the General Assembly is

presumed to have knowledge of decisions of the United States Supreme

Court on constitutional issues that bind actions of the states when

A-22

Accordingly, we conclude that § 9-333w (a) is narrowly

tailored to serve compelling State interests, and therefore is

valid and enforceable.'” We recognize, however, the fine line

between McIntyre and the present case. Throughout part I of

this opinion, we have weighed an individual's first amend-

ment interest in the freedom of speech against the state’s

interest in protecting the integrity of the electoral process. In

doing so, we conclude that the intrusion upon any specific

individual rights is minor when compared to the benefits

gained by, and the importance of, a fair electoral process. On

balance, this conclusion best serves and protects the people

of Connecticut. A contrary result would undermine the inte-

grity of the electoral process. We conclude that § 9-333w (a),

as narrowly drafted, passes constitutional muster. A decision

calling for a more narrowly drafted disclosure statute is best

left to the legislature.

Il

The plaintiffs further claim that the commission’s delay of

a hearing until after the election and its publicized opinion as

to the conduct of the plaintiffs violated their rights to free

enacting statutes that potentially invoke such issues.” Virginia Society for

Human Life, Inc. v. Caldwell, 152 F.3d 268, 273 (4th Cir. 1998).

' The plaintiffs and the amicus contend that, even if § 9-333w (a) is gen-

erally constitutional, it is unconstitutional as applied to the plaintiffs

because the expenditures involved were de minimis. The amicus cites

Buckley to support its position. We disagree with its reading of that case.

Buckley did not suggest that disclosure requirements below a certain

threshold would be violative of the first amendment. On the contrary,

Buckley specifically stated that it would not address that question. “[W]e

do not reach the question whether information concerning gifts of this

size can be made available to the public without trespassing impermis-

sibly on First Amendment rights.” Buckley v. Valeo, supra, 424 U.S. 84.

The court did insist, however, that threshold disclosure amounts are a

legislative decision. “The line is necessarily a judgmental decision, best

left in the context of this complex legislation to congressional discretion.”

id., 83. Accordingly, we will not substitute our judgment for the legis-

lature’s in deciding that some arbitrary threshold would be more reasonable

than the current, “zero tolerance” line established by § 9-333w (a).

A-23

speech and due process under the first, fifth and fourteenth

amendments to the United States constitution. We disagree.

General Statutes § 9-7a (g) addresses the commission’s re-

sponsibilities with regard to written complaints. It provides in

relevant part: “In the case of a written complaint . . . if the

commission does not, by the sixtieth day following receipt of

the complaint, either issue a decision or render its deter-

mination that probable cause or no probable cause exists for

one or more violations of state election laws, the complainant

or respondent may apply to the superior court for the judicial

district of Hartford for an order to show cause why the com-

mission has not acted upon the complaint and to provide evi-

dence that the commission has unreasonably delayed action.

...” General Statutes § 9-7a (g). The plaintiffs contend that

the commission was obligated to issue a decision prior to

the November 4 election. The two complaints, however, were

filed on September 18 and October 8; less than sixty days

prior to the election.'® The commission, therefore, was under

no obligation to issue a decision during the time leading up to

the election. If after sixty days the commission made no deci-

sion as to the complaints, the plaintiffs had recourse through

the statutory remedy of an application for an order to show

cause. The plaintiffs, however, failed to seek such a remedy.

Moreover, § 9-7a (g) concludes: “Nothing in this subsection

shall preclude the commission from continuing its investi-

gation or taking any action permitted by section 9-7b, unless

otherwise ordered by the court. . . .” General Statutes § 9-7a

(g). Thus, the statute specifically provides for the commis-

sion’s continued investigation until otherwise ordered, regard-

less of the time frame.

The plaintiffs’ additional claim that the commission's

“threats and expressions of opinion as to the guilt of [the]

plaintiffs” violated their constitutional rights is equally un-

'© The commission treated the second McGuire complaint (October 2,

1997) as an amendment to the first complaint (September 16, 1997). Thus,

the sixty day period did not actually commence until the filing of the sec-

ond complaint.

A-24

persuasive. Specifically, the plaintiffs contend that two ar-

ticles appearing in local newspapers on December 17 and 18,

1997, unfairly labeled them as guilty of the pending allega-

tions. In those articles, a commission staff attorney stated that

this was a “clear case” where the plaintiffs “broke the law.”"’

It should first be noted that these two articles could not have

affected the November 4, 1997 election, because they were

published more than one month after the election occurred.

Also, the articles primarily discuss the DeMazza complaint,

which was dismissed and is not the subject of this appeal. See

footnote 2 of this opinion. In fact, the McGuire complaints

were mentioned in only one sentence of each article. Finally,

and most importantly, there is no evidence in this record to

support the plaintiffs’ claim that any prehearing publicity af-

fected the adjudication of their hearing. We conclude, there-

fore, that the plaintiffs’ constitutional rights were not violated

either by the time frame in which the commission adjudi-

cated the complaints or by the prehearing publicity.

Ill

The plaintiffs’ final assertion is that the composition of the

commission violates the separation of powers doctrine. We

disagree.

It is well established that “[t]he party attacking a validly

enacted statute . . . bears the heavy burden of proving its un-

constitutionality beyond a reasonable doubt and we indulge

in every presumption in favor of the statute’s constitution-

ality.” State v. Breton, 212 Conn. 258, 269, 562 A.2d 1060

(1989); see also Morascini v. Commissioner of Public Safety,

236 Conn. 781, 789, 675 A.2d 1340 (1996); Adams v. Ru-

binow, 157 Conn. 150, 152-53, 251 A.2d 49 (1968).

In support of their claim that the makeup of the commis-

sion violates the separation of powers doctrine, the plaintiffs

'” See T. Fitzmaurice, “Seymour, 11 Others Face Election Law Hearing in

Hartford,” Lakeville Journal, Dec. 18, 1997, p. Al; J. Longley, “Hearing to

air campaign complaint,” Waterbury Republican-American, Dec. 17, 1997,

p. IA.

A-25

again rely on Buckley. In Buckley, the court held that the Fed-

eral Elections Commission could not exercise its enforce-

ment function because four of its six voting members were

appointed by Congress in violation of the separation of powers

doctrine. Buckley v. Valeo, supra, 424 U.S. 127. The court

reasoned that the Federal Elections Commission was com-

prised of “Officers of the United States” within the meaning

of the appointments clause,’ ® and it was therefore unconstitu-

tional for the legislature, rather than the president, to appoint

individuals to the commission. Id., 125-26.

Similar to the Federal Elections Commission, our state

commission consists of five members, four of whom are

appointed by the legislature, and the other is appointed by the

governor.'” Unlike the federal constitution, however, the

Connecticut counterpart has no appointments clause. With no

parallel clause in the Connecticut constitution, the appoint-

ment of high ranking officers of the state of Connecticut is

not limited to the governor. In response to a letter questioning

the effect of Buckley on the commission, the attorney general

stated that “[i]t is readily apparent that the Connecticut Con-

stitution contains no Appointments Clause similar to the one

found in the United States Constitution: As a matter of fact,

the Legislature has on many occasions combined with the

Governor on making appointments to executive agencies.

. °° Opinions, Conn. Atty. Gen. (February 11, 1976). The

'§ The appointments clause provides in relevant part: “[The President]

shall nominate, and by and with the Advice and Consent of the Senate,

shall appoint Ambassadors, other public Ministers and Consuls, Judges of

the supreme Court, and all other Officers of the United States, whose

Appointments are not herein otherwise provided for, and which shall be

established by Law: but the Congress may by Law vest the Appointment

of such inferior Officers, as they think proper, in the President alone, in

the Courts of Law, or in the Heads of Departments.” U.S. Const., art. II, §

yy ie 2

'? See footnote 5 of this opinion for the relevant text of § 9-7a (a).

20 After remarking that the lack of an appointments clause allowed the

governor and legislature to make joint appointments to executive agencies,

the attorney general continued: “This was the situation before our Con-

A-26

lack of an appointments clause in Connecticut’s constitution

is fatal to the plaintiffs’ argument.

In addition to the framers’ decision not to adopt an appoint-

ments clause, we have long recognized that under appropriate

circumstances powers may be shared by the three branches

of government in this state. This court has stated that “[t]he

separation of powers doctrine serves a dual function: it limits

the exercise of power within each branch, yet ensures the

independent exercise of that power. Nevertheless, it cannot

be rigidly applied always to render mutually exclusive the

roles of each branch of government. As we have recognized,

the great functions of government are not divided in any such

way that all acts of the nature of the function of one depart-

ment can never be exercised by another department; such a

division is impracticable, and if carried out would result in

the paralysis of government. Executive, legislative and judicial

powers, of necessity overlap each other, and cover many acts

which are in their nature common to more than one depart-

ment.” (Internal quotation marks omitted.) Massameno v.

Statewide Grievance Committee, 234 Conn. 539, 552, 663

stitution of 1965 was adopted and still is the situation. Some examples of

current commissions with dual appointments are the Connecticut Com-

mission on Special Revenue, State Capitol Preservation and Restoration

Commission, Commission on Hospitals and Health Care, Connecticut

Solid Waste Management Advisory Council, and the Advisory Council

on Aging. It appears that in this area of relationships we have operated

more flexibly under the separation of powers than in the area of relation-

ships between the Legislature and the Judiciary. This is a mere recogni-

tion of the principles that [t]he rule of separation of governmental powers

cannot always be rigidly applied. . . .

“As we have noted, the appointive power in Connecticut traditionally

has never been the exclusive prerogative of the executive, but instead has

been shared with the legislative branch from time to time. . . . It should

require little discussion to demonstrate that this system is among a number

of alternatives that ensure a balance of power in government. Therefore,

it is our opinion that the Supreme Court decision in Buckley v. Valeo,

supra, [424 U.S. 1] does not have any adverse effect on the constitutional

composition of your Commission.” (Citations omitted; internal quotation

marks omitted.) Opinions, Conn. Atty. Gen. (February 11, 1976).

A-27

A.2d 317 (1995). We have consistently “held that there are

activities in which more than one branch of government may

participate.” University of Connecticut Chapter, AAUP v.

Governor, 200 Conn. 386, 394, 512 A.2d 152 (1986).

We have established that “in deciding whether one branch’s

actions violate the constitutional mandate of the separation of

powers doctrine, the court will consider if the actions con-

stitute: (1) an assumption of power that lies exclusively under

the control of another branch; or (2) a significant interference

with the orderly conduct of the essential functions of another

branch.” Massameno v. Statewide Grievance Committee, su-

pra, 234 Conn. 552-53; see also Bartholomew v. Schweizer,

217 Conn. 671, 676, 587 A.2d 1014 (1991); State v. Darden,

171 Conn. 677, 679, 372 A.2d 99 (1976).

In the present case, the plaintiffs are unable to demonstrate

that the appointive power in Connecticut is exclusively under

the control of the executive branch. Nor can they show that

legislative appointment to the commission significantly inter-

feres with the essential functions of the executive branch. The

case law, in fact, suggests the opposite. For example, in State

v. Moynahan, 164 Conn. 560, 567-71, 325 A.2d 199, cert. de-

nied, 414 U.S. 976, 94 S.Ct. 291, 38 L.Ed.2d 219 (1973), this

court upheld a statute that provided for the appointment of

state’s attorneys by the judicial branch. Although state’s at-

torneys are generally considered to exercise executive power,

the court reasoned that they actually exercise both executive

and judicial powers. Id., 568.

Similarly, powers exercised by members of the commis-

sion are not strictly executive. Commission duties and powers

include, inter alia, levying civil penalties, 2! adopting regu-

7! General Statutes § 9-7b (a) (2) provides in relevant part that the com-

mission has the power “[t]o levy a civil penalty. . . .

A-28

lations” and investigating alleged violations.”? Thus, com-

mission members participate in activities traditionally thought

of as judicial, legislative and, of course, executive. The plain-

tiffs have failed to demonstrate that the actions exercised by

the commission are exclusively dedicated to any one branch

of government. Moreover, the plaintiffs have not met their

heavy burden to establish that the actions taken by the com-

mission significantly interfere with any branch’s ability to

perform its duties. We therefore conclude that the composi-

tion of Connecticut’s commission does not violate the separ-

ation of powers doctrine.

In sum, we conclude that § 9-333w (a) is constitutional, that

the commission’s handling of the complaints did not violate

the plaintiffs’ constitutional rights, and that the composition

of the commission is not in violation of the separation of

powers doctrine. The judgment is affirmed.

In this opinion BORDEN and PALMER, Js., concurred.

MCDONALD, C.J., dissenting.

With whom SULLIVAN, J., joins.

This case involves a one page press release and a two page

press release issued by the plaintiffs, Gabriel Seymour and

Robert Reid, in which these candidates for the board of se-

lectmen outlined their election platform and their proposals

for political reform in the town of Canaan. The two releases

were prepared by Seymour on her computer, and she faxed

2 General Statutes § 9-7b (a) (13) provides in relevant part that the

commission has the power “[t]o adopt and publish regulations . . . and to

make recommendations to the General Assembly concerning suggested

revisions of the election laws. . . .”

3 General Statutes § 9-7b (a) provides in relevant part: “The State Elec-

tions Enforcement Commission shall have the following duties and powers:

“(1) To make investigations on its own initiative or with respect to

statements filed with the commission . . . with respect to alleged

violations of any provision of the general statutes relating to any

election or referendum... .”

A-29

them to three newspapers. The names and telephone numbers

of both plaintiffs were printed at the top of these releases.

The expenditures incurred by the plaintiffs for the prepara-

tion and distribution of the news releases have not been cal-

culated, but the record reflects that they were the cost of three

pieces of paper and the ink used in printing the releases, and

the cost (if any) of six local telephone calls — mere pennies.

The elections enforcement commission (commission) held

that, because the press releases did not contain the words

“paid for by” preceding the names and telephone numbers of

the plaintiffs, the plaintiffs were “in technical violation” of

General Statutes § 9-333w (a).7* The majority now affirms

this ruling.

“Discussion of public issues and debate on the qualifica-

tions of candidates are integral to the operation of the system

of government established by our Constitution. The First

Amendment affords the broadest protection to such political

expression in order to assure [the] unfettered interchange of

ideas for the bringing about of political and social changes

desired by the people. . . . Although First Amendment protec-

tions are not confined to the exposition of ideas . . . there is

practically universal agreement that a major purpose of that

Amendment was to protect the free discussion of govern-

mental affairs . . . of course includ[ing] discussions of candi-

dates. . . . This no more than reflects our profound national

2* General Statutes § 9-333w (a) provides: “No individual shall make or

incur any expenditure with the cooperation of, at the request or sug-

gestion of, or in consultation with any candidate, candidate committee or

candidate’s agent, and no candidate or committee shall make or incur any

expenditure for any written, typed or other printed communication which

promotes the success or defeat of any candidate’s campaign for nomina-

tion at a primary or election or solicits funds to benefit any political party

or committee unless such communication bears upon its face the words

‘paid for by’ and the following: (1) In the case of such an individual, the

name and address of such individual; (2) in the case of a committee other

than a party committee, the name of the committee and its campaign

treasurer; or (3) in the case of a party committee, the name of the com-

mittee.”

A-30

commitment to the principle that debate on public issues

should be uninhibited, robust, and wide-open.... In a re-

public where the people are sovereign, the ability of the

citizenry to make informed choices among candidates for

office is essential, for the identities of those who are elected

will inevitably shape the course that we follow as a nation.

As the Court [previously observed] . . . it can hardly be

doubted that the constitutional guarantee has its fullest and

most urgent application precisely to the conduct of campaigns

for political office. Buckley v. Valeo, 424 U.S. 1, 14-15 [96

S.Ct. 612, 46 L.Ed.2d 659] (1976) (per curiam).” (Citations

omitted; internal quotation marks omitted.) McIntyre v. Ohio

Elections Commission, 514 U.S. 334, 346-47, 115 S.Ct. 1511,

131 L.Ed.2d 426 (1995). “When a law burdens core political

speech, we apply ‘exacting scrutiny,’ and we uphold the re-

striction only if it is narrowly tailored to serve an overriding

state interest.” Id., 347. As noted by Justice Scalia in his dis-

sent in McIntyre, this standard is ordinarily the “kiss of death.”

Id., 380.

The majority finds that four compelling state interests jus-

tify infringement upon this core political speech. First is the

state’s interest in preventing actual or perceived corruption.

See Nixon v. Shrink Missouri Government PAC, 528 U.S.

__, 120 S.Ct. 897, 145 L.Ed.2d 886 (2000). The evil is pre-

sented as postelection favors for the candidate’s supporters.

That reason simply does not exist in this case. Here, the can-

didate is spending her own money and less than $1.

Second, quoting Buckley v. Valeo, supra, 424 U.S. 67-68,

the majority finds that the funding source requirement is “‘an

essential means of gathering the data necessary to detect

violations of the contribution limitations. ... ’” As required

by Buckley v. Valeo, supra, 52-54, however, and as provided

in General Statutes § 9-333] (c),?° there are no limits on the

25 General Statutes § 9-3331 (c) provides: “A candidate may make any

expenditure permitted by section 9-333i to aid or promote the success of

his campaign for nomination or election from his personal funds, or the

funds of his immediate family, which for the purposes of this chapter

A-31

self-funding 0: campaigns. In this case there are no contri-

bution limitations. As Buckley again points out, if discover-

ing violations of campaign contributions by the candidate is

the function of the funding disclosure, disclosure would not

serve any governmental purpose in this case. Id., 76.7°

The majority also finds that the provision ensures that the

public will know who is the source of the press releases. In

this case, the addition of the fact that the candidate herself

funded the releases with pennies adds nothing to the public’s

ability to evaluate the message of those documents by know-

ing their source. See McIntyre v. Ohio Elections Commission,

supra, 514 U.S. 334.

Last, the majority finds that the “paid for” label may pre-

vent libel and fraud. The candidate’s name and address on the

press release, however, fully serves this purpose. I fail to see

how stating that the candidate herself prepared the release on

her computer with her three pieces of paper and faxed them

to the newspapers at her own small expense advances this

claimed state interest. Simply put, none of the goals claimed

by the commission are advanced by the application of the

statute in this case.

In the words of the commission itself, this was a “technical

violation” that, in ordinary English, translates into action that

did not violate the substance of the election law.

The commission endangers vigorous political debate by

straining at a gnat. Were it not for the real threat to grass roots

political movements with modest resources and their right to

reach the public’s ears, this case would be laughable.

History teaches us that a stringent control of political debate

on a minute formal point, without any relationship to the

shall consist of the candidate’s spouse and issue. Any such expenditure

shall not be deemed a contribution to any committee.”

°° “If the sole function of [the disclosure requirement] were to aid in the

enforcement of [the independent expenditure ceiling, which was found to

be unconstitutional], it would no longer serve any governmental purpose.”

Buckley v. Valeo, supra, 424 U.S. 76.

A-32

dangers of money controlling democratic government, pre-

sents a grave threat to our liberties. A hisiory of the use of

disclosure laws against civil rights groups, detailed in such

cases as N.A.A.C.P. v. Alabama, 357 U.S. 449, 78 S.Ct. 1163,

2 L.Ed.2d 1488 (1958), illustrates how those in power may

attempt to impede vigorous debate of political issues by the

application of such laws.

We should remember the words of Benjamin Franklin when

he was asked what kind of government we created in 1787. He

replied, “A republic, if you can keep it.” Respectfully Quoted

(S. Platt ed.,; 1992) p. 299. Free elections and the vigorous

debate essential to them are the essence of our republic. That

is why freedom of speech was protected in the first amend-

ment in 1791. Seymour's seeking public office against en-

trenched political parties in a small Connecticut town was

entitled to protection from undue interference by the com-

mission. | find the statute as applied violated that right.

I respectfully dissent.

A-33

APPENDIX B

STATE OF CONNECTICUT

SUPREME COURT

No. SC 16167

GABRIEL SEYMOUR ET AL.

Vv.

STATE OF CONNECTICUT

ELECTIONS ENFORCEMENT

COMMISSION : FEBRUARY 7, 2001

ORDER

THE MOTION OF THE PLAINTIFFS, FILED DECEM-

BER 28, 2000, FOR RECONSIDERATION EN BANC AND

FOR REARGUMENT, HAVING BEEN PRESENTED TO

THE COURT. IT IS HEREBY ORDERED DENIED. KATZ

AND VERTEFEUILLE, JS., DID NOT PARTICIPATE IN

THE CONSIDERATION OR DECISION OF THE MOTION.

BY THE COURT,

/s/

CHIEF CLERK

NOTICE SENT: FEBRUARY 7, 2001

BRENNER, SALTZMAN & WALLMAN, LLP

ELIOT D. PRESCOTT, ASSISTANT ATTORNEY

GENERAL

PHILIP D. TEGELER

MARTIN B. MARGULIES

CLERK, HARTFORD J.D. (CV98-0579752)

HON. ROBERT F. MCWEENY

RJD 243/001244

A-34

APPENDIX C

CV98 0579752

GABRIEL SEYMOUR . SUPERIOR COURT

societal JUDICIAL DISTRICT

V. - OF HARTFORD AT

STATE OF CONNECTICUT | NEW BRITAIN

ELECTIONS ENFORCEMENT ‘* pECEMBER 16, 1998

COMMISSION

MEMORANDUM OF DECISION

The plaintiffs appeal pursuant to the Uniform Adminis-

trative Procedure Act (UAPA), § 4-166 et seq. § 4-183, from

a decision by the State of Connecticut Elections Enforcement

Commission (Commission) finding them in technical violation

of Connecticut election laws (General Statutes § 9-333w) for

failing to indicate “Paid for by” on certain press releases. The

Commission’s decision of March 18, 1998 did not fine or

otherwise penalize the plaintiffs, merely ordering their pro-

spective compliance with the statute.

The plaintiffs were candidates for Selectmen position in the

November 4, 1997 municipal election in the Town of Canaan,

Connecticut. Complaints were made against the plaintiffs on

September 16, 1997 and October 2, 1997.' The latter com-

plaint was treated as an amendment by the Commission. The

complaints were initiated by a political opponent. One of the

allegations of the complaint was that transmittal letters in cer-

tain mailings should have contained the attribution language

(“Paid for by”) that the insert included. The remaining allega-

tion related to press releases of September 3 and September 12,

1997, which were faxed to four local newspapers. The plain-

tiffs, names and telephone numbers were noted but the spe-

cific attribution “Paid for by” was omitted.

' The plaintiffs in their argument also reference a related third complaint

(DeMazza Complaint), which is not the subject of the appeal.

A-35

The complaint to the Commission was heard as a contested

case on January 14, 1998. The Commission hearing officer

found that the plaintiffs had met the attribution requirements

of § 9-333w’ with respect to the transmittal letters which in-

cluded a properly attributed enclosure. The conclusion as to

the faxed press releases was set forth in paragraph 17 of that

decision:

It is therefore found that the failure of the September 3

and September 12 press releases to contain the words

“Paid for by” and the names and addresses of both

Respondents constitutes a violation of Section 9-333w.

These violations were of a technical nature by virtue of

the fact that all four newspapers receiving the releases

knew, or readily could have found out, that the commu-

nications were prepared and paid for by the Respondents

as both Respondents’ names and telephone numbers ap-

peared on the releases as “Contacts”. Similarly the fax

source number appears on both releases by reference to

Ms. Seymour’s name.

(Return of Record (ROR) R 67, p. 4.)

The Commission’s order based on the technical nature of

the violation was: “That the Respondents (Plaintiffs in this

case) shall henceforth comply with the disclosure require-

ments of Section 9-333w of the Connecticut General Statutes

by placing on any. typed, written or printed press release the

words of attribution required by Section 9-333w.”

* General Statutes § 9-333w states in pertinent part: “(a) No individual shall

make or incur any expenditure with the cooperation of, at the request or

suggestion of, or in consultation with any candidate, candidate committee

or candidates agent, and no candidate or committee shall make or incur any

expenditure for any written, typed or other printed communication which

promotes the success or defeat of any candidate's campaign for nomina-

tion at a primary or election or solicits funds to benefit any political party

or committee unless such communication bears upon its face the words

“paid for by” and the following: (1) In the case of such an individual, the

name and address of such individual; (2) in the case of a committee other

than a party committee, the name of the committee and its campaign trea-

surer; or (3) in the case of a party committee, the name of the committee.”

A-36

The plaintiffs though not subject to any sanction by the

order are aggrieved because of the risk, however remote, of

criminal penalties for elections law violation, General Statutes

§ 9-333y. See, on aggrievement Board of Pardons v. Freedom

of Information Commission, 210 Conn. 646, 650 (1989); State

Library v. Freedom of Information Commission, 240 Conn.

824, 834 (1997).

The plaintiffs in their appeal essentially raise three claims

all of a constitutional nature: (1) a challenge to the legislative

control over the Commission’s membership; (2) a challenge

to the statutory authorization of disclosure of complaints of

election law violations and (3) a challenge to the alleged

selective application of the election laws to plaintiffs’ press

releases.

The plaintiffs’ challenge to the Commission’s composition

is based on the separation of power provisions of Articles

Second and Fourth of the Connecticut Constitution. Article

Fourth vests executive power in the Governor. Article Second

provides for the separation of powers among the Executive,

Legislative and Judicial branches of government.

The Commission consists of five members, four of whom

are appointed by the Legislature, § 9-7(a). The remaining

member is appointed by the Governor.

The plaintiffs assert that the Commission which performs

an executive branch law enforcement function, is undermined

by legislative appointment of the majority of its members.

The plaintiffs find support for this claim under a federal

case, Buckley v. Valeo, 424 U.S. 1 (1976). The Buckley deci-

sion found the original Federal Elections Commission un-

constitutional because of a similarly legislatively appointed

majority membership.

The plaintiffs acknowledge that Buckley was decided on

the basis of the Appointments Clause of the United States

A-37

Constitution, Art. I] § 2 clause 2’ which has no counterpart in

the Connecticut Constitution. The challenge to the Commis-

sion thus rests solely on a separation of powers analysis.

There is no Connecticut precedent which suggests that legis-

lative appointments of commissions which serve executive

functions violates the separation of powers provisions. This

is the case even in the face of numerous instances of legis-

lative appointments of similar commission memberships.’

The long Connecticut history of shared appointive power

was noted in Connecticut Attorney Generals Opinions (Attor-

ney General Opinion, February 11, 1996, and Opinion 90-13,

April 17, 1990).

The Connecticut Supreme Court has repeatedly held: “Re-

cognizing that executive, legislative and judicial powers fre-

quently overlap, we have consistently held that the doctrine

of the separation of powers cannot be applied rigidly.” Bar-

tholomew v. Switzer, 217 Conn. 671, 676 (1991); University

of Connecticut Chapter AAUP v. Governor, 200 Conn. 386,

394 (1986); Adams v. Rubinow, 157 Conn. 150, 155 (1968);

In Re Application of Clark, 65 Conn. 17, 38 (1894). “As we

have recognized, the great functions of government are not

divided in any such way that all acts of the nature of the

function of one department can never be exercised by another

department, such a division is impractical, and if carried out

would result in the paralysis of government.” Massameno v.

Statewide Grievance Committee, 234 Conn. 339, 533 (1995).

In states that have considered the separation of powers chal-

lenge to a shared legislative executive appointive power, the

plaintiffs can find no comfort. See Board of Ethics v. Green.

566 So.2d 623 (La. 1990); Pennsylvania State Assn. of Town-

ship Supervisors v. Thornbury, 405 A.2d 614 (Pa. Conn. 1979)

> “The President shall nominate, and ... shall appoint . .. all other of-

ficers of the united States.

* See § 1-80 State Ethics Commission; State Properties Review Board 4b-

3; State Commission on the Arts § 10-369; Connecticut Lottery Corp

§ 12-802; Connecticut Siting Council § 16-50

A-38

aff'd 437 A.2d 1 (1979); 1 N. Singer, Sutherland Statutes and

Statutory Construction, § 3.20 at 76 (4" ed. 1985).

The federal law is distinguishable on the basis of the ap-

pointments clause, the majority rule in other states supports a

shared appointive power and Connecticut authority rejects a

rigid application of the separation of powers doctrine.

The plaintiffs have failed to demonstrate the unconstitu-

tional composition of the Commission.

The plaintiffs allege that pre-hearing publicity violated their

constitutionally protected freedoms of speech and association,

and their Fourteenth Amendment rights to due process of

law. The crux of this claim is that complaints to the Com-

mission resulted in a disclosure of political associations and

unfavorable publicity concerning unsubstantiated charges.

The plaintiffs correctly cite NAACP v. Alabama, 357 U.S.

449, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958) for the propo-

sition that political association is protected from government

interference. However, NAACP v. Alabama, is clearly distin-

guishable from the instant case. NAACP involved a state

court order which required the civil rights organization to

disclose its membership. The hostile state environment and

limited legitimate interest of the state in membership rosters,

contrasts markedly with the incidental nature of disclosure

of names in the Commission’s enforcement proceeding. Sub-

jecting the statute § 9-7(f) to the strictest scrutiny does not

* In NAACP the Court held at 351 U.S. 462-63: “Petitioner has made an

uncontroverted showing that on past occasions revelation of the identity

of its rank-and-file members has exposed these members to economic

reprisal, loss of employment, threat of physical coercion, and other mani-

festations of public hostility. Under these circumstances, we think it ap-

parent that compelled disclosure of petitioner's Alabama membership is

likely to affect adversely the ability of petitioner and its members to pur-

sue their collective effort to foster beliefs which they admittedly have the

right to advocate, in that it may induce members to withdraw from the

Association and dissuade others from joining it because of fear of exposure

of their beliefs shown through their associations and of the consequences

of this exposure.”

A-39

invalidate it. The state has a critical interest in the electoral

process, which justifies any indirect limit on political asso-

ciation which may incidentally result from disclosure of the

names of persons associating for political purposes.

Section 9-7b(14) merely reflects the public policy in favor

of open government and free access to public records. The

overarching policy of the Freedom of Information Act, § 1-

10 et seq., (FOIA) is “the open conduct of government and

free public access to government records.” Wilson v. FOIC,

181 Conn. 324, 328 (1986); Maher v. FOIC, 192 Conn. 310,

315 (1984); Chairman v. FOIC, 217 Conn. 193, 196 (1991).

“The general rule under the [FOIA] is disclosure with excep-

tions to the rule being narrowly construed.” Perkins v. FOIC,

228 Conn. 158, 167 (1993); Superintendent v. FOIC, 222

Conn. 621, 626 (1993); Rose v. FOC, 221 Conn. 217, 232

(1992); New Haven v. FOIC, 205 Conn. 767, 775 (1988).

Section 9-7(b)(14) merely applies the FOIA principles to

Commission records, with a limited exception for criminal

investigations. The plaintiffs have made no showing nor do

they even allege political bias as motivation by the Com-

mission.

The plaintiffs selective prosecution claim also fails. In order

to demonstrate selective prosecution the plaintiffs must show

(1) that similarly situated persons were treated differently:

and (2) that such selective treatment was based on imper-

missible consideration or to punish the exercise of constitu-

tional rights or acts of malicious or bad faith intent. Schnabel

v. Tyler, 230 Conn. 735, 762 (1994); FSK Drug Corp. v. Per-

ales, 960 F.2d 6, 10 (2d Cir. 1992); LeClair v. Saunders, 627

F.2d 606, 608 (2d Cir. 1980).

The plaintiffs claim that candidates for the Connecticut

State Senate sent similar press releases which lacked for “Paid

for by” attribution. The plaintiffs in no instance are able to

identify any other press release or candidate that was brought

to the Commission’s attention and treated differently. Similar

situated persons would be candidates against whom a com-

plaint was filed with the Commission.

A-40

The plaintiffs assert a political outsider status as a moti-

vation, but fail completely to assign such intent to the Com-

mission. The motivation of their political opponents in Canaan

is not automatically attributable to the State.

The plaintiffs also attack the applicability of § 9-333w to

the “press releases.” The plaintiffs’ claim that the exception of

§ 9-333w(c)° is applicable. This exception is clearly directed

to the publisher not the candidate. The freedom of a news-

paper to publish materials originating in a press release does

not relate back to a candidates obligation to include the “Paid

for by” attribution on its materials.

The decision is affirmed and the appeal is dismissed.

/s/ rw

Robert F. McWeeny

° General Statutes § 9-333w(c) states: “The provisions of subsections (a)

and (b) of this section do not apply to (1) any editorial, news story, or

commentary published in any newspaper, magazine or journal on its own

behalf and upon its own responsibility and for which it does not charge or

receive any compensation whatsoever, (2) any banner, (3) political para-

phernalia including pins, buttons, badges, emblems, hats, bumper stickers

or other similar materials, or (4) signs with a surface area of not more than

thirty-two square feet.”

A-41

APPENDIX D

STATE OF CONNECTICUT

STATE ELECTIONS ENFORCEMENT COMMISSION

In The Matter of a Complaint by Final Decision

James P. McGuire, Falls Village

Gabriel Seymour, Respondent

Route 126, No. 200

Falls Village, CT 06031

and

Robert Reid, Respondent

200 Johnson Road

Falls Village, CT 06031

File No. 97-252

March 18, 1998

The above captioned matter was heard on January 14, 1998

as a contested case pursuant to Chapter 54 of the Connecticut

General Statutes, Section 9-7b of the Connecticut General

Statutes, and Section 9-7b-35 of the Regulations of Connec-

ticut State Agencies. The hearing was held before the under-

Signed pursuant to notice served upon the parties, at which

time both the State of Connecticut, represented by Attorney

Ronald Morgan Gregory, and the Respondents, pro se, ap-

peared and presented testimony and documentary evidence on

the matter.

After consideration of the entire record, the following pro-

posed findings of facts and conclusions of law are made:

1. This matter was brought to the Commission by two sworn

affidavits, dated September 16, 1997 and October 2, 1997,

which were filed by the Complainant with the Commis-

sion on September 18, 1997 and October 8, 1997 respec-

tively. The Complainant’s October 2, 1997 affidavit was

treated as an amendment to his September 18, 1997

affidavit of complaint.

2. Both affidavits challenge the legal sufficiency, under

Conn. Gen. Stats. Sec. 9-333w, of four different typed or

printed communications prepared and distributed by the

Tr

A-42

Respondents in connection with last year’s municipal

elections. The dates of the printed communications at is-

sue are August 25, September 3, September 12, and Sep-

tember 18, 1997, respectively.

By way of background, the town of Canaan has a select-

men/town meeting form of government and Falls Village

is a post office within the town of Canaan. Respondent

Gabriel Seymour was a candidate for First Selectman

during the Town of Canaan's November 4, 1997 muni-

cipal election. Respondent Robert Reid was a candidate

for the Board of Selectmen in the same election.

Both Respondents self-funded their own campaigns by

filing timely Certifications of Exemption from Forming

a Candidate Committee with the town clerk of Canaan.

The August 25, 1997 mailing consisted of a one page

letter, signed by both Respondents, referencing and en-

closing an insert which set forth the positions and bio-

graphies of both Respondents and four other Republican

Party candidates in the November 4, 1997 election. Both

the letter and the insert were placed inside a single en-

velope and mailed to certain persons at minimal expense

(less than $50.00). No attribution appeared at the bottom

of the introductory letter but an attribution appeared at

the bottom of the reverse side of the one page, two-sided

insert, as follows: “(Paid for by Gabriel Seymour, Route

126; Bob Reid, Johnson Road; Tom Coolidge, Beebe Hill

Road: Ruth Hadsell, Dublin Road; Bill Jenks, Cobble

Road; Gail Sinclair, Barnes Road, Falls Village CT

06031)”. The cost of the entire mailing was paid for

equally by all of the six candidates, as reflected on the

foregoing attribution.

The September 18, 1997 mailing similarly consisted of a

letter signed by both Respondents specifically referen-

cing and enclosing a one page, one-sided position paper

of both Respondents, but which did not reference any

other candidates. The insert set forth the following attri-

bution: “(Paid for by Gabriel Seymour, Route 126, Falls

10.

11.

A-43

Village, 06031 and by Bob Reid, Johnson Road, Falls

Village CT 06031)”, but the introductory letter did not.

The letter and insert were placed inside a single enve-

lope, mailed at minimal expense (less than $50.00) to

the targeted audience, and the mailing was paid for

equally by both Respondents as reflected on the attri-

bution.

The State contended at the hearing that both the signed

August 25 and September 18 letters were required to

contain the same attribution as their enclosures because,

although mailed in the same envelope, both letters and

enclosures were not stapled together and therefore con-

stituted separate communications.

There was no evidence adduced at hearing concerning

whether the August 25 or September 18 letters were

stapled to the enclosures which they referenced. Further,

the two cases cited by the State, the Findings and Con-

clusions in File No. 89-223 and the Final Decision in

File No. 89-231, are both inapposite here in that both

cases involve separate flyers which were distributed by

individuals door-to-door.

Where, as here, a cover letter specifically references a

typed or printed communication which is enclosed in the

same envelope which is mailed, such documents shall be

presumed to constitute a single communication in the

absence of evidence showing that both documents have

different funding sources.

It is therefore concluded that the Respondents fully satis-

fied the attribution requirements set forth in Conn. Gen.

Stats. Sec. 9-333w with respect to the typed or printed

communications dated August 25 and September 18,

1997.

The hearing on this matter also concerned two press re-

leases, dated September 3 and September 12, 1997, both

of which were printed off of a computer and then faxed

to each of four local newspapers covering the Town of

Canaan. The expense for these press releases were shared

ee

A-44

equally by both Respondents and the releases set forth

both Respondents’ names and telephone numbers, but

contained no other attribution.

12. Section 9-333w, Connecticut General Statutes, provides

in pertinent part that “... no candidate shall make or

incur any expenditure for any written, typed or other

printed communication which promotes the ... candi-

date’s ... election .. . unless such communication bears

upon the face the words “paid for by” ... and ... the

name and address of such individual .. .”.

13. The Respondents first contend that Section 9-333w does

not apply to the September 3 and September 12, 1997

press releases by virtue of the fact that they were distri-

buted by fax machine to the newspapers in question.

14. It is found that that the requirements of Section 9-333w

apply to a fax distribution of a written, typed or other

printed communication prepared by the Respondents’

campaigns.

15. Respondents next contend that the requirements of Sec-

tion 9-333w do not apply to these press releases by

virtue of the exemption set forth in Section 9-333w(c)

which states that “. . . (t)he provisions of . . . this section

do not apply to (1) any editorial, news story, or com-

mentary published in any newspaper, magazine or journal

on its own behalf and upon its own responsibility .. .”.

16. The press releases in question were not published by any

newspaper and were prepared on behalf of the Respon-

dents’ campaigns, not by a bona fide press entity. While

a republication of these releases by a press entity would

not be required to bear on its face any attribution, this

exception is inapplicable to the original distribution of the

release by the Respondents themselves.

17. It is therefore found that the failure of the September 3

and September 12 press releases to contain the words

“Paid for by” and the names and addresses of both

Respondents constitutes a violation of Section 9-333w.

A-45

These violations were of a technical nature by virtue of

the fact that all four newspapers receiving the releases

knew, or readily could have found out, that the com-

munications were prepared and paid for by the Respon-

dents as both Respondents’ names and telephone numbers

appeared on the releases as “Contacts”. Similarly the fax

source number appears on both releases by reference to

Ms. Seymour’s name.

18. The Respondents further contend that the issues raised in

this complaint do not, in any event, constitute violations

of Chapter 150 as a matter of law because the complaint

was filed for politically motivated reasons and because

the claimed violations, at most, constitute technical vio-

lations of Chapter 150 of the election laws.

19. The Complainant, as the husband of the Chair of the Falls

River Democratic Town Committee, may have been po-

litically motivated to file the instant complaint but poli-

tical motivations are not a relevant inquiry for purposes

of this Commission’s hearing. In this regard, political

motivations, good or bad. do not deny citizens either the

right or standing to file a complaint with this Commis-

sion when such complaint otherwise alleges a violation

of the election laws.

20. Further, the Commission has jurisdiction to investigate.

hear and decide even technical violations of Chapter 150

of the election laws.

ORDER

The following Order is hereby recommended on the basis

of the foregoing Findings of Fact and Conclusions of Law:

1. That the Respondents shall henceforth comply with the

disclosure requirements of Section 9-333w of the Con-

necticut General Statutes by placing on any typed,

written or printed press release the words of attribution

required by Section 9-333w.

A-46

Adopted by order of the State Elections Enforcement Com-

mission on March 18, 1998.

/s/ Lois E. Blackburn

Lois E. Blackburn

Clerk of the Commission

I certify that the preceding notice and final decision were

sent to respondents Gabriel Seymour, Route 126, No. 200 Falls

Village, CT 06031 and Robert Reid, 200 Johnson Road, Falls

Village, CT 06031 certified and regular mail, on March 18,

1998.

/s/ Lois E. Blackburn

Lois E. Blackburn

Clerk of the Commission

A-47

APPENDIX E

Gabriel Seymour ( 860) 824-1412 Immediate Release

Bob Reid (860) 824-1125

SEYMOUR AND REID UNVEIL PLANS

TO IMPROV V T

Falls Village, Sept. 3, 1997 — Town Selectmen nominees

Gabriel Seymour and Bob Reid, who won a surprise upset

victory at the Republican Party Caucus here in July, today

detailed their plans to rejuvenate the village’s government.

Both candidates have been active for several years in citizen

efforts to improve town planning and open up discussion of

public issues, but their efforts have been rebuffed by dis-

interest and stalling from town officials.

In what they described as their “Platform for Falls Village,”

Seymour and Reid listed ten specific reforms they said they

would implement immediately after taking office in January.

“These are not typical pie-in-the-sky political promises

made before Election Day and quickly forgotten afterwards,”

they said in a joint statement. “This is a list of very specific

actions which citizens can observe, participate in, and judge

for themselves. If we are elected, the taxpayers of Falls Village

will begin to see results within 30 days. We mean business.”

B

(“Platform for Falls Village” attached.)

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SEYMOUR-REID PLATFORM FOR FALLS VILLA

Model Code of Ethics. Adoption of Connecticut’s Model

Code of Ethics covering conflict of interest and ethical

issues for municipal officeholders will be presented for

discussion at the first Town Meeting to be held in 1998.

Quarterly Taxpayer Information Meetings. Regular Town

Meetings will be scheduled to permit all taxpayers to hear

reports on current programs and town finances, and to

encourage participation in discussion of future town plan-

ning.

Response to Taxpayer Letters. Every letter written by a

town taxpayer to the First Selectman will be acknow-

ledged within 72 hours of its receipt.

Tax Reduction Initiatives. A comprehensive program to

attract environmentally-friendly businesses; seek more

funding grants; increase state and federal aid; and pre-

vent erosion of the town’s existing tax base will be

developed and openly discussed at Town Meetings on an

ongoing basis.

Creation of Economic Opportunity. Young people in Falls

Village will be encouraged and assisted to develop entre-

preneurial skills and start their own businesses so they

can continue to live here.

Technology Learning Center. Full support will be given

to the Board of Education to develop a new Media Center

at Kellogg School to serve as an after-hours computer and

internet learning and business resource for community

residents of all ages.

Establishment of Community Website. Town residents

will be given immediate access to information about town

government through a new official Town internet web-

site. The Falls Village website will also supply informa-

tion about the Town and its resources to visitors, summer

residents, new arrivals, and potential business property

buyers.

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8. Pursuit of Educational Excellence. Affirmative encour-

agement will be given to parent, teacher and Board of

Education efforts to provide the best possible education

we can afford for our children.

9. Preservation of Our Heritage. New initiatives to protect

our historic landmarks, our downtown historic district,

and our natural beauty and resources will be offered for

taxpayer consideration at Town Meetings during 1998.

10. Long-Range Capital Planning. In order to develop effec-

tive capital planning and realize long term savings, a 3-

year capital plan will be prepared and presented for tax-

payer discussion covering major capital expenditures

facing the town, including: expansion of town recreation

services for all age groups from kindergarten to senior

citizens; a new or satellite firehouse; construction of a

State-mandated salt shed maintenance requirements for

the Kellogg School building; and other citizen recom-

mendations to improve town programs and services.

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Contacts:

Gabriel Seymour (860) 824-1412 Immediate

Bob Reid (860) 824-1125 Release

SEYMOUR AND REID PLEDGE QUICK ACTION

ON CODE OF ETHICS FOR FALLS VILLAGE

Falls Village, Sept. 12 — Selectmen nominees Gabriel Sey-

mour and Robert Reid, Republican candidates who won an

upset victory over the party organization’s candidates at the

open Republican caucus in July, charged today that the town’s

present Board of Selectmen has failed to adopt a Model Code

of Ethics for over two years.

“Stalling, delay and inaction have characterized Falls Vil-

lage government for too long,” Seymour and Reid said in a

joint statement. “When something as important as a Code of

Ethics for town officials is swept under the rug, you know

the time has come for a change.”

The State Ethics Commission, acting under mandate from

the Connecticut Legislature, distributed a proposed Code of

Ethics to all towns and special districts in August, 1995. A

principal goal of the new Code was to bar public officials

who have financial or personal conflicts of interest from par-

ticipating in official votes or actions. The Falls Village Board

rejected the proposed Code, but promised at a meeting on

November 13, 1995 to prepare a simpler version. No simpler

version was ever enacted, and the matter was allowed to die a

quiet death until revived today by Republican candidates

Seymour and Reid.

“Adopting a Code of Ethics for Falls Village will be our top

priority,” Seymour and Reid said. “The first step in restoring

public confidence in town government is establishing a clear

set of rules every official must follow. The voters are entitled

to know the rules under which we will operate, and to insist

all Town officers live up to those rules.

“The reasons Falls Village needs a code of ethics were

well stated by the State Ethics Commission,” the Selectmen

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nominees said. “Public office is a public trust. The trust of

the public is essential for government to function effectively.

Public policy developed by government officials and em-

ployees affects every citizen of the municipality, and it must

be based on honest and fair deliberations and decisions. The

process must be free from threats, favoritism, undue influence,

and all forms of impropriety so that the confidence of the

public is not eroded.

“Falls Village should adopt a Code of Ethics to increase the

confidence of our citizens in the integrity and fairness of their

government,” Seymour and Reid said.