HHD-CV18-6088961-S : SUPERIOR COURT

MILLY ARCINIEGA, MICHAEL BRESCIA,

JACQUELINE NADAL : J.D. OF HARTFORD
LILLIE PARKER, ALEJANDRO
RODRIGUEZ, MALY ROSADO, ANNA :
SARRAGA-CIERI, ESTELA SEGARRA,
PEDRO TORRES, JR, TYRONE WALKER
CARL WILLIAMS, HYACINTH YENNIE
KATHLEEN KOWALYSHYN :

V. : AT HARTFORD

GISELLE FELICIANO, DEMOCRATIC : FEBRUARY 17, 2018

REGISTRAR OF VOTERS FOR THE CITY OF
HARTFORD; JOHN V. BAZZANO, TOWN AND:
CITY CLERK

FIRST PARTY PLAINTIFFS’ POST TRIAL BRIEF

Pursuant to order of the Court, Shapiro, J, the first party Plaintiffs hereby submit their

Post Trial Brief in support of their Complaint, case in chief, defense to the Counter Claim

Plaintiffs’ Complaint and Motion for a Directed Verdict.

I. ARGUMENT IN SUPPORT FIRST PARTY PLAINTIFFS’ COMPLAINT

1. REQESTED RELIEF

In their prayer for relief the undersigned Plaintiffs asked the Court, in addition to granting

the now concluded hearing, that 1) this court declare the petitions circulated by the Pamela

Jackson and challenged by the affidavits be declared invalid pursuant to §9-410(c);

2) That this Court hold all the petitions circulated by Pamela Jackson be declared invalid

pursuant to 9-410(c); 3) that this Court declare that the Peterson Slate is not qualified to run in
the Democratic Town Committee primary because of the failure to file the necessary number of

signatures on or before January 31, 2018 at 4:00 pm.

2. EVIDENCE IN SUPPORT OF REQUEST RELIEF

Attached to the Amended Verified Complaint were seven (7) sworn affidavits in which

the affiants identified a signature line which contained their name, address, date of birth and a

false signature. (Exhibits 1-7) An additional three affidavits were submitted during the hearing

making the same assertion. (Exhibits 9-11) Each affiant identified a signature line which they

swore did not in fact contain their signature. The following is a list of the affidavits by exhibit

number with the corresponding page they challenged contained in Exhibit 8:

Ex. No.

1. Roderic K. McKone page 9 of Exhibit 8(Full Exhibit);

2. Maria Salgado page 7 of Exhibit 8(ID);

3. Beverly Fonfara page 3 of Exhibit 8(Full Exhibit);

4. Walter Fonfara page 3 of Exhibit 8(Full Exhibit);

5. Paul Moon page 4 of Exhibit 8(ID);

6. Jenny Lopez page 5 of Exhibit 8(ID);

7. Josefina Torres page 1 of Exhibit 8(ID);

9. Janice Castle page of 2 Exhibit 8(ID);

10. Johanna Sierra page 2 of Exhibit 8(ID);

11. Jorge Cuevas page 4 of Exhibit 8(ID);

 During the trial the undersigned elicited in Court testimony of seven witnesses regarding

their signatures on petitions circulated by Pamala Jackson (Ex. 8). Each witness examined their

alleged signature and testified that it was not in fact their signature. The following is a list of

these witnesses and the page on Exhibit 8 upon which they testified:

1. Hilda Negron page 1;

2. Luis Sierra page 2;

3. Beverly Fonfara page 3;

4. Milly Arciniegas page 5;

5. Maria Selgado page 7;

6. Jane Grahn page 7;

7. Rodric K. McKone page 9.

Mrs. Arcineegas testified that she was familiar with her husband of over twenty years

signature and that of her twenty-year-old son’s and that in her experience both of their signatures

were also falsified on page 5. There was live testimony that six sheets of Exhibit 8 contained

false signatures. Additionally, the affidavit of Walter Fonfara was admitted as a full exhibit as to

the falsification of his signature. Therefore, eight individuals offered admitted evidence that six

of the sheets in question contained forged signatures. That means just by the admitted evidence

and not that of the exhibits which were marked for ID, two thirds of all of petitions submitted by

Beverly Jackson contained signatures which were not those of the individuals who purportedly

signed the documents in question.

 The sheets about which the witnesses testified (1, 2, 3, 5, 7 and 9) each contained the

following number of signatures certified by the Defendant Feliciano

1. Page 1 of Exhibit 8 contained 18 certified signatures;

2. Page 2 of Exhibit 8 contained 20 certified signatures;

3. Page 3 of Exhibit 8 contained 20 certified signatures;

4. Page 5 of Exhibit 8 contained 18 certified signatures;

5. Page 7 of Exhibit 8 contained 18 certified signatures;

6. Page 9 of Exhibit 8 contained 19 certified signatures.

TOTAL 113

Pamala Jackson was the circulator of nine petition sheets which contained a total of 170

signatures certified by the Defendant Feliciano.

The Defendant Feliciano testified after petitions are submitted to the Registrar of Voters

each signatory’s information is checked against the data base of registered members of the

Democrat party to ensure that are eligible to properly sign a petition in support of a slate of

candidates. Therefore, though a sheet may contain a certain number of signatures, the certified

number of signatures may be less than the total submitted on any given sheet.

Defendant Feliciano testified that each slate required 331 certified signatures to qualify

for a Town Committee primary in the 6th Assembly District. The Peterson slate was certified

with 409 approved signatures. Therefore, they were certified with 78 signatures above the

number required.
 A. STATUTORY LANGUAGE

C.G.S.A. Sec. 9-412 states "[t]he registrar shall reject any page of a petition which does

not contain the certifications provided in section 9-410, or which the registrar determines to have

been circulated in violation of any other provision of section 9-410." C.G.S.A. Sec. 9-410 states

“IT IS A CRIME TO SIGN THIS PETITION IN THE NAME OF ANOTHER PERSON....Each

separate sheet of such petition shall contain a statement as to the authenticity of the

signatures thereon and the number of such signatures, and shall be signed under the penalties of

false statement by the person who circulated the same, setting forth such circulator's address and

the town in which such circulator is an enrolled party member and attesting that each person

whose name appears on such sheet signed the same in person in the presence of such

circulator, that the circulator either knows each such signer or that the signer satisfactorily

identified the signer to the circulator...”(emphasis added).

Through witness testimony at trial, the Plaintiff proved that at least six sheets contained

forged signatures and therefore were in violation of C.G.S.A. Sec. 9-410 in that they were 1)

signed in the name of another person; 2) the statement as to the authenticity of the signatures

contained on each of those petitions was a false statement; and 3) the “signer” was not in fact

known to the circulator in that the “signer” was not in fact the individual it claimed to represent.

In that these six petitions were circulated in violation of at least three provisions of section 9-410

each of these six pages should be rejected.

The Court should note the language of Sec. 9-412 which states “[t]he registrar shall reject

any page…” The Connecticut Supreme Court has observed that “[i]n interpreting statutory text,
this court has often stated that “’the use of the word “shall,” though significant, does not

invariably create a mandatory duty… The usual rule, however, is that [t]he … use of the word

“shall” generally evidences an intent that the statute be interpreted as mandatory.’” Demayo v.

Quinn, 315 Conn. 37, 42 (2014) 43, (emphasis added), citing Stewart v. Tunxis Service Center,

237 Conn. 71, 78 (1996). C.G.S.A. Sec. 1-1 states “[i]n the construction of the statutes, words

and phrases shall be construed according to the commonly approved usage of the language..”

When language is plain and unambiguous it need not be construed. State v. Hughes, 3 Conn. Cir.

Ct. 181.

The Court should interpret the use of “shall” in C.G.S.A. Sec 9-412 as mandatory and

directs the Registrar to “reject any page” which is in violation of C.G.S.A. 9-410. It is important

to note that the language specifically does not direct the Registrar to reject any single signature

but the entire page. Had the Legislature intended to have the Registrar reject only the signature

which was in violation of C.G.S.A. 9-410 it could have included such a limitation in its

amendment to the statute in 1978 when it added the language allowing for any other violation

C.G.S.A. 9-410 to require the Registrar to reject the “page”. It is important to note that neither

the City or the Counter Claim Plaintiff’s deny that each of these six petition sheets contain

forgeries in violation of C.G.S.A. 9-410.

The undersigned anticipates that the Counter Claim Plaintiffs will argue in their post-trial

brief that only the seven signatures which were identified through in Court testimony and the one

additional affidavit (Walter Fonfara) should be decertified by the Court. The undersigned

expects they will argue that to decertify the entire page strips the individuals who had allegedly
authentic signatures of their right to have their opinion regarding the eligibility of the Peterson

Slate stripped away by Court order. The Counter Claim Plaintiffs will inevitably cite cases

which state that Court should be selective and restrained when the consequence of a ruling is

limiting the choices of the voters. However, all these arguments flatly ignore that there is

uncontroverted testimony that multiple felonies occurred, and a significant amount of proof has

been admitted which question the validity of not just the signatures of those who testified in

Court but the affiants. The Court should note that it never ruled on the First Party Plaintiffs’

Motion for all of the affidavits marked for identification be admitted as full exhibits. We would

argue that in light of the in Court testimony which corroborated each of affidavits which were

attached to the Complaint and submitted as exhibits that the affidavits for which in Court

testimony was not offered be admitted. They should be admitted in light of the bolstering

testimony and corroboration of the witnesses who were available to testify.

Additionally, the argument that only the individual signatures should be eliminated

ignores the very clear language of C.G.S.A. 9-412 which directs the Registrar to “reject any

page” not any line of a petition which is circulated in violation of C.G.S.A. 9-410. The word

shall in the statute is not ambiguous in its use in the statute and therefore not open for

interpretation. Also, the Court should follow the general proscription that words should be given

their plain language meaning and, in this case, shall is mandatory that each page shall be

rejected.

A much more logical and common-sense argument is that all of Exhibit 8 (Petitions

circulated by Pamala Jackson) should be rejected. There has been amble evidence that this
circulator violated the law in two thirds of the petitions she submitted. Under such

circumstances the evidence supports the argument that there are no indices of reliability for any

of the petitions circulated by this individual. If she was willing to make a false statement of

authenticity as to the six sheets for which there was live testimony, there is no indication that she

would not falsify this statement for her other three petition sheets.

The first party plaintiffs request that the Court decertify all the petition sheets collected

by Pamala Jackson (Ex. 8). If the Court does not believe sufficient proof has been provided

regarding all the sheets of Ex. 8 should be decertified, the first party Plaintiffs respectfully

request that the Court direct the Hartford Democratic Registrar of Voters to decertify pages 1, 2,

3, 5, 7 and 9 on the basis that each of these pages should have been rejected under C.G.S.A. 9-

412 and 9-410.

If the Court does direct the decertification these six sheets, the Peterson slate will have

submitted only 296 certified signatures in support of their being on the 6th District Democratic

Town Committee primary ballot. Therefore, they will not have submitted the required 331

certified signatures to qualify for the primary. Under such circumstances, the First Party

Plaintiffs additionally respectfully request that the Court direct Defendant Bazzano to remove the

Peterson slate from the 6th District Democratic primary ballot.

II. ARGUMENT FOR DISMISSAL OF COUNTER CLAIM COMPLAINT

The Counter Claim Plaintiffs allege in their pleading that Jacqueline Nadal

misrepresented her home address. They claim that she lives at a different address approximately
800 feet from the address contained on the First Party Plaintiffs’ petition sheet. Both structures

are within the confines of the 4th Assembly District.

Because of this alleged misrepresentation, the Peterson Slate asks the Court to decertify

all petitions circulated by Mrs. Nadal, James Sanchez, Maly Rosado and Kathleen Kowalyshyn.

They argue that the petitions collected or notarized by Sanchez, Kowalyshyn or Rosado should

be decertified because they knew or should have known that Nadal had listed an incorrect

address. Additionally, the Peterson Slate requests that the Court decertify all petition sheets

circulated for the Arciniega Slate and that the Arciniega Slate be declared ineligible to run in the

March 6, 2018 primary. Their argument being that any petition which contains Nadal’s alleged

incorrect address should be thrown out.

During their case in chief, the Counter Claim Plaintiffs called numerous witnesses to

support their allegation the Jacqueline Nadal lives on Freeman Street and not New Britain

Avenue as is listed as her address on the petitions and candidate consent form. In support of this

allegation, the Peterson slate elicited the testimony of Alyssa Peterson. Ms. Peterson testified

that while out with Plaintiff Maly Rosado Ms. Peterson was told by Ms. Rosado that Ms. Rasado

had visited Ms. Nadal at Freeman Street. Importantly, Ms. Rasado testified that she visited Mrs.

Nadal at both addresses. Additionally, Jane Grahn testified that she had walked around the

exterior of the house on Freeman street with Mrs. Nadal and Mrs. Nadal had told Mrs. Grahn

about the house. There was also testimony by individuals who live at the New Britain Avenue

address that they regularly see Mrs. Nadal there doing things like picking up her mail.
 The Peterson slate also called Investigator Robert Vance who testified that during a two

and half day period he observed Mrs. Nadal leave the house on Freeman Street twice. He also

testified that his investigation had been three days long and that his other residency

investigations take between two weeks and a month.

The Counter Claim Plaintiff’s offered no evidence as to the state of mind of Kowalyshyn

or Sanchez. They offered third party evidence through Ms. Peterson’s testimony as to Ms.

Rosado’s experiences with Mrs. Nadal and thereby Ms. Rosado’s state of mind.

A. LEGAL ARGUMENT

1. Bona Fide Residence for Election Purposes is Determined by the Elector

In essence, the Counter Claim Plaintiff argues that by selecting an address with which

they do not agree is her “bona fide” residence Mrs. Nadal has invalidated all petitions

which she circulated, acknowledged and was a candidate upon. Recently, the State

Elections Enforcement Commission made a lengthy and detailed analysis of residency

requirements and where an elector’s “bona fide” residence is located in In Re Peterson,

2016-106.(This is the same Peterson who brings this counter claim.)

In that administrative proceeding, the Commission found that they had “concluded,

however, that "[t]he traditional rigid notion of `domicile' has ...given way somewhat but

only to the extent that it has become an impractical standard for the purposes of

determining voting residence (i.e., with respect to college students, the homeless, and

individuals with multiple dwellings)." Complaint of James Cropsey, Tilton, New

Hampshire, File No. 2008-047. See also, Wit v. Berman, 306 F.3d 1256, 1262 (2d Cir.
2002) (stating that under certain circumstances domicile rule for voting residency can

create administrative difficulties); Sims v. Vernon, Superior Court, New London County,

No. 41032 (Oct. 4, 1972) (considering issue of voter residency with respect to college

students and stating that "a student, and a nonstudent as well, who satisfies the

...residence requirement, may vote where he resides, without regard to the duration of his

anticipated stay or the existence of another residence elsewhere. It is for him alone to say

whether his voting interests at the residence he selects exceed his voting interests

elsewhere.")

The Commission has further held that, where an individual truly maintains two

residences to which the individual has legitimate, significant, and continuing attachments,

that individual can choose either one of those residences to be their bona fide residence

for the purposes of election law so long as they possess the requisite intent. See Cropsey.

See also Wit, 306 F.3d at 1262 (quoting People v. O'Hara, 96 N.Y.2d 378, 385 (2001),

for delineation of this proposition.

Moreover, the Commission has concluded that if an individual has established

residency at a location, "only the Respondent's abandonment of the residence ...will

extinguish [his or] her right as an elector in that town." Complaint of Carole Dmytryshak,

Salisbury, File No. 2012197. See also, Gold v. Gold, 100 Conn. 607 (Conn. 1924)

(holding that for personal jurisdiction purposes "the essentials upon which the conclusion

of a change of domicile must rest are intention to abandon the old domicile and to acquire

a new one in another place where a residence has been established") (citing Roxbury v.
Bridgewater, 85 Conn. 196; Hoskins v. Matthews, 57 Eng. Ch. 12); Maksym v. Board of

Education Com 'rs of City of Chicago, Illinois Supreme Court, Docket No. 111773 (Jan.

27, 2011), 2011 WL 242421 at *8 ("[O]nce residency is established, the test is no longer

physical presence but rather abandonment. Indeed, once person has established residence,

he or she can be physically absent from that residence for months or even years without

having abandoned it....").

In the case at bar, there has been no evidence that Mrs. Nadal has abandoned her

bona fide residence on New Britain Avenue.

2. Both Addresses are Contained in the 4th District and Do Not Invalidate the

Petitions

The Court should note that both the Freeman and New Britain address are within

the 4th District and that Plaintiff Nadal is a proper candidate in the primary at either.

Assuming arguendo, that Nadal’s bona fide address is on Freeman versus New Britain

this has no appreciable impact on either the ballots or the authenticity of the primary

petitions. In a phrase, it is a distinction without a difference.

Judge Peck faced a similar situation in Green v. Vasquez, CV-10-6013904-S. In

that case a voter, Carlos Carbrero, was registered to vote in the Bloomfield 4 th voting

district but was allowed to vote in the 3rd voting district. The Court held that “There is no

evidence that the decision of district three polling place officials to permit Carbrero to

vote in district three, rather than district four, had any effect on the election that would

raise doubt as to the reliability of its result. Because districts three and four are each in
the first assembly district, the ballots were identical. There is no difference in the voting

procedures of these districts. The results of the election are not tabulated on the basis of

districts won, but on the basis of total votes. More importantly, there was no evidence

that the validity of Carbrero's ballot that is his voting intent, was affected by allowing

him to vote in district three. Nor is there reason to believe that he would not have voted

at all, if the voting officials directed him to district four.

Further, the Supreme Court has provided at least two policy reasons that suggest

that this court should not invalidate the result of the primary based on the decision to

allow Carbrero to vote in district three. In In re Election for Second Congressional

District, the Supreme Court recognized an “overarching policy that, in construing voting

statutes, no voter is to be disfranchised on a doubtful construction, and statutes tending to

limit the exercise of the ballot should be liberally construed in his [or her] favor.”

(Internal quotation marks omitted.) In re Election for Second Congressional District,

supra, 231 Conn. 653. Given that policy, the court took “into consideration whether the

failure of strict compliance was due to the conduct of the voter or of someone not within

his or her control.” Id.

The Counter Claim Plaintiffs have offered no proof in support of the argument

that Mrs. Nadal has abandoned her bona fide residence on New Britain Avenue.

Conversely, they have offered evidence that she has been visited there by Ms. Arciniega

since the alleged move to Freeman Street, that other occupants of the multifamily

structure have witnessed her picking up her mail which is delivered to the New Britain
Address and that her car is often parked at the New Britain address. At their very best,

the Peterson Slate has proven that Mrs. Nadal maintains two addresses. As the case law

above aptly explains it is appropriate and legal for an elector to maintain multiple

addresses and it in fact the duty of the moving party to prove abandonment. The Peterson

slate has failed to make such an offer let alone support its allegations. Additionally, the

Peterson Slate has failed to offer any legal support that even if Mrs. Nadal’s address is

incorrect this fact invalidates the petitions in question. There has been no support or

evidence that those signing any of the First Party Plaintiff’s petitions were impacted or

prejudiced by this alleged difference in address.

In light of the fact that the Peterson Slate has failed to offer sufficient proof as to

the bona fide residence of Mrs. Nadal at Freeman Street or any proof as to the state of

mind of Kowalyshyn or Sanchez and that even if Mrs. Nadal’s bona fide residence is on

Freeman street it does not impact the validity of the petitions, the First Party Plaintiffs

renew their Motion for a Directed Verdict. The undersigned respectfully requests that the

Peterson Slates prayer for relief not only be denied but that its Counter Claim be

dismissed.

CONCLUSION

With the considerable evidence presented, the undersigned First Party Plaintiffs

respectfully request that the Court direct Defendant Feliciano to decertify all of the

petitions circulated by Pamala Jackson and in the alternative decertify pages 1, 2, 3, 5, 7

and 9 of Ex. 8. Either order by the Court will lower the Peterson Slates certified number

of signatures below 331 and qualification for the March 6, 2018 primary. Therefore, in

either case, the First Party Plaintiffs additionally request the Court to direct Defendant

Bazzano to remove the Peterson Slate from the 4th District Democratic Town Committee

Primary Ballot.

Finally, due to the Counter Claim Plaintiffs’ failure to adequately support their

case in chief, the undersigned respectfully requests that a their Complaint be either

dismissed or a directed verdict in favor of the Counter Claim Defendants be entered.

PLAINTIFFS,

BY_____________________________
John B. Kennelly
Kennelly & Associates
196 Trumbull Street
Suite 508
Hartford, CT 06103
Juris No. 422641
T. 860-724-0650
F. 860-724-0670
 CERTIFICATION

The undersigned hereby certifies that on February 17, 2018, a copy of the foregoing Post Trial
Brief in this action was delivered to:

Ken Krayesky
Kenneth J. Krayeske Law Offices
255 Main Street, 5th Floor Hartford, CT 06106

John Beamon
Office of Corporation Counsel
City Hall
Hartford, Connecticut 061063

BY_____________________________
John B. Kennelly
Kennelly & Associates
196 Trumbull Street
Suite 508
Hartford, CT 06103