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DOCKET NO: HHD-CV16-6071180-S : SUPERIOR COURT
INDEPENDENT PARTY OF CT- : JUDICIAL DIST. OF HARTFORD
STATE CENTRAL, ET AL.
: AT HARTFORD
VS.
:
DENISE MERRILL, AS CT SECRETARY :
OF THE STATE; MICHAELTELESCA; :
ROCCO FRANK, JR. : SEPTEMBER 14, 2018
OBJECTION TO MOTION TO INTERVENE
Defendants Michael Telesca and Rocco Frank, Jr., hereby object to the Motion to
Intervene (DN 158.00) filed by supposed plaintiffs-in-error and proposed intervenors Walczak,
Fay, Forster, Hurley, Tanksi, Szynkowicz, Belsito, Crouch, Bolinsky, Roeun, Domenech,
Ferguson and Wood (hereafter “the Proposed Intervenors”). The Proposed Intervenors are
candidates for office who disagree with the trial court’s decision in this case that enjoined the
Connecticut Secretary of the State from accepting their endorsements by the Danbury town
committee of the Independent Party. That decision did not prevent the Proposed Intervenors
from appearing on the ballot, but it prevented them from appearing on the ballot twice (as the
nominee of the Republican and Independent Parties), as they had hoped. Fortunately for the
Proposed Intervenors, plaintiffs in this case also disagree with the trial court’s decision and have
appealed it. Because the Proposed Intervenors fail to demonstrate how their interests are not
completely derivative of (and adequately represented by) the existing parties in the case, and fail
to meet the other criteria outlined for intervention as of right, the Court should deny the Motion
to Intervene.
1
A. BRIEF PROCEDURAL BACKGROUND
The parties tried this case on October 11, 17 and 18, 2017. The Court issued its
Memorandum of Decision (“MOD”) on August 21, 2018. The MOD finds against the plaintiffs
and for the defendants. In particular, the Court found that (1) Telesca and Frank established that
the 2010 bylaws are “validly adopted and operative bylaws of the Independent Party/Independent
Party of Connecticut,”; (2) Telesca and Frank are duly elected officers of that party, and the
individual plaintiffs are not; and (3) the 2006 bylaws apply “only to the Danbury faction’s local
committee of the Independent Party.” MOD at 45-46. Lastly, the Court declared and ordered
“that the SOTS must accept only the nominations and endorsements of the Independent
Party/Independent Party of Connecticut, made pursuant to the 2010 bylaws filed with the SOTS
on March 22, 2016, or as may be amended, pursuant to General Statutes § 9-374.” Id. at 46. The
Proposed Intervenors apparently wish to have endorsements made under rules that this Court has
found apply only to the Danbury local committee recognized as valid, even though they are
outside Danbury.
Pursuant to the election timeline published by the Secretary of the State and available on
her website, nominations and certifications of minor parties were required to be filed with her by
September 5, 2018 (before the motions by the proposed intervenors were filed). The
Independent Party in fact has made nominations in caucuses conducted under the 2010 bylaws,
and they have been timely filed with Secretary of the State (before the proposed intervenors filed
their Writ of Error).
The Proposed Intervenors presented the Court with a Writ of Error on September 7, 2018.
That Writ was apparently served on the Secretary of the State, and apparently was served on the
defendants in this case on September 12 and 13, 2018. The return date for the Writ of Error is
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September 25, 2018. The Proposed Intervenors filed this Motion to Intervene on September 7,
2018. Plaintiffs filed a direct appeal on the same day.
Defendants Telesca and Frank now oppose Proposed Intervenors’ Motion to Intervene
because the Proposed Intervenors have failed to demonstrate they are in any way necessary to
this proceeding, and because they fail to demonstrate that intervention is merited.
B. INTERVENTION IS INAPPROPRIATE
Under Connecticut law, a party is “deemed necessary if its presence is absolutely
required in order to assure a fair and equitable trial.” Caswell Cove Condo. Ass'n, Inc. v. Milford
Partners, Inc., 58 Conn. App. 217, 223-24 (2000). Courts have developed a four-factor test to
determine if a party is “necessary1” and thus has the right to intervene. Those factors are: (1) the
motion to intervene must be timely; (2) the moving party must have a direct and substantial
interest in the subject matter of the litigation; (3) the moving party's interests must be impaired
by disposition of the litigation without the party's involvement; and (4) the moving party's
interest must not be represented adequately by any other party to the litigation. Episcopal
Church in Diocese of Connecticut v. Gauss, 302 Conn. 386, 397–98 (2011). Here, the Proposed
Intervenors’ Motion fails to demonstrate how any of these factors are met in this case.
We begin with the third and fourth factors because they are at the heart of the analysis.
In terms of the fourth factor, plaintiffs in this case more than adequately represent the Proposed
Intervenors’ interests – they are, in fact, identical. When the interests of the existing parties are
“identical” to those of the party applying for intervention, courts will presume adequate
representation. Gauss, 302 Conn. at 399. When adequate representation is presumed, “an
1
The Proposed Intervenors have not asserted in their Motion that they are indispensable or even
necessary parties.
3
applicant for intervention must show there is adversity of interest, collusion, or nonfeasance on
the part of the existing party.” Id. In this case, the Proposed Intervenors’ interests are
completely represented by the existing parties, as plaintiffs have already filed an appeal seeking
the same result the Proposed Intervenors seek: a finding that the trial court’s decision was in
error. The Proposed Intervenors’ attempt to suggest their interests are not represented by the
existing parties because the Proposed Intervenors’ interest is “limited to the 2018 election,”
Motion at 2, is irrelevant and unpersuasive. That the existing parties have an interest – the
endorsement process in the 2018 election and future elections – within which the Proposed
Intervenors’ interest is subsumed – the endorsement process in the 2018 election only – does not
mean that the two interests are not identically aligned (in fact, it proves the opposite).
In addition, because they seek the same result as the plaintiffs in this case, the Proposed
Intervenors have likewise failed to meet the third factor which requires the Proposed Intervenors
to demonstrate how their interests would be “impaired” in the disposition of this case without
their involvement. The plaintiffs have appealed the trial court’s MOD and seek an appellate
court ruling reversing the MOD – the presence of the Proposed Intervenors would add nothing to
that disposition, and the Proposed Intervenors’ Motion does not suggest any facts to the contrary.
Turning to the second factor, the Proposed Intervenors utterly fail to demonstrate how
they have a uniquely “direct and substantial interest” in this case. Indeed, at the time of trial, the
Proposed Intervenors’ interest was no different from that of any other Connecticut citizen. That
the Proposed Intervenors essentially seek the right to be endorsed by a group (and thus to appear
on the ballot not once but twice) that has been held by law to be unable to endorse them does not
transform their interests into “direct and substantial” ones.
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Finally, the Proposed Intervenors fail to demonstrate their Motion to Intervene is timely.
In assessing timeliness, courts look to “how long the intervenor was aware of an interest before
he or she tried to intervene, any prejudicial effect of intervention on the existing parties, and
prejudicial effect of a denial on the applicant and consideration of any usual circumstances either
for or against timeliness.” Rosado v. Bridgeport Roman Catholic Diocesan Corp., 60 Conn.
App. 134, 146 (2000). In this case, the Proposed Intervenors claimed to be endorsed on August
20, but waited until September 7 to file this Motion. More importantly, granting this Motion
would have great prejudicial effect on the existing parties by jeopardizing the significant
investment made by the parties in preparing and presenting the case and the trial court in hearing
and deciding it. See Wykeham Rise, LLC v. Zoning Comm’n of Town of Washington, 2013 WL
812494, at *1-3 (Conn. Super. Feb. 4, 2013) (Pickard, J.) (finding “delay and prejudice” to be
“extreme” where parties have already invested time and resources to reach a resolution to the
case). Allowing a party whose interests so significantly mirror the interests of the existing
parties to intervene at this juncture would likewise cause “extreme” prejudice to the parties.
For all these reasons, the Court must deny the Motion to Intervene.
THE DEFENDANTS,
By__/s/William M. Bloss_______________
William M. Bloss
Alinor C. Sterling
Nico Gurian
Koskoff, Koskoff & Bieder, P.C.
350 Fairfield Avenue
Bridgeport, Connecticut 06604
Telephone No.: 203-336-4421
Juris No. 32250
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CERTIFICATION
I hereby certify that a copy of the attached has been served in accordance with the
applicable Rules of Practice and/or Procedure on September 14, 2018 on:
Domenico M. Chieffalo
36 Mill Plain Rd- Ste 305
Danbury, CT 06811
Bryan Thomas Cafferelli
129 College Place
Fairfield, CT 06824
Matthew Joseph Grimes Jr.
11 Orchard Street
Brookfield, CT 06804
Benjamin S. Proto Jr.
2885 Main Street
Stratford, CT 06614
Proloy Das, Esq
MURTHA CULLINA LLP (040248)
CITYPLACE ONE
185 ASYLUM STREET
HARTFORD, CT 061033469
Hurwitz Sagarin Slossberg & Knuff LLC
147 North Broad Street
Milford, CT 06460
Dey Smith Steele LLC
9 Depot Street
Milford, CT 06460
Maura Bridget Murphy-Osborne
Ag-Special Lit 2nd Fl
55 Elm Street
PO Box 120
Hartford, CT 06141
__/s/William M. Bloss_________
William M. Bloss
6
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DOCKET NO: HHD-CV16-6071180-S : SUPERIOR COURT INDEPENDENT PARTY OF CT- : JUDICIAL DIST. OF HARTFORD STATE CENTRAL, ET AL. : AT HARTFORD VS. : DENISE MERRILL, AS CT SECRETARY : OF THE STATE; MICHAELTELESCA; : ROCCO FRANK, JR. : SEPTEMBER 14, 2018 OBJECTION TO MOTION TO INTERVENE Defendants Michael Telesca and Rocco Frank, Jr., hereby object to the Motion to Intervene (DN 158.00) filed by supposed plaintiffs-in-error and proposed intervenors Walczak, Fay, Forster, Hurley, Tanksi, Szynkowicz, Belsito, Crouch, Bolinsky, Roeun, Domenech, Ferguson and Wood (hereafter “the Proposed Intervenors”). The Proposed Intervenors are candidates for office who disagree with the trial court’s decision in this case that enjoined the Connecticut Secretary of the State from accepting their endorsements by the Danbury town committee of the Independent Party. That decision did not prevent the Proposed Intervenors from appearing on the ballot, but it prevented them from appearing on the ballot twice (as the nominee of the Republican and Independent Parties), as they had hoped. Fortunately for the Proposed Intervenors, plaintiffs in this case also disagree with the trial court’s decision and have appealed it. Because the Proposed Intervenors fail to demonstrate how their interests are not completely derivative of (and adequately represented by) the existing parties in the case, and fail to meet the other criteria outlined for intervention as of right, the Court should deny the Motion to Intervene. 1 A. BRIEF PROCEDURAL BACKGROUND The parties tried this case on October 11, 17 and 18, 2017. The Court issued its Memorandum of Decision (“MOD”) on August 21, 2018. The MOD finds against the plaintiffs and for the defendants. In particular, the Court found that (1) Telesca and Frank established that the 2010 bylaws are “validly adopted and operative bylaws of the Independent Party/Independent Party of Connecticut,”; (2) Telesca and Frank are duly elected officers of that party, and the individual plaintiffs are not; and (3) the 2006 bylaws apply “only to the Danbury faction’s local committee of the Independent Party.” MOD at 45-46. Lastly, the Court declared and ordered “that the SOTS must accept only the nominations and endorsements of the Independent Party/Independent Party of Connecticut, made pursuant to the 2010 bylaws filed with the SOTS on March 22, 2016, or as may be amended, pursuant to General Statutes § 9-374.” Id. at 46. The Proposed Intervenors apparently wish to have endorsements made under rules that this Court has found apply only to the Danbury local committee recognized as valid, even though they are outside Danbury. Pursuant to the election timeline published by the Secretary of the State and available on her website, nominations and certifications of minor parties were required to be filed with her by September 5, 2018 (before the motions by the proposed intervenors were filed). The Independent Party in fact has made nominations in caucuses conducted under the 2010 bylaws, and they have been timely filed with Secretary of the State (before the proposed intervenors filed their Writ of Error). The Proposed Intervenors presented the Court with a Writ of Error on September 7, 2018. That Writ was apparently served on the Secretary of the State, and apparently was served on the defendants in this case on September 12 and 13, 2018. The return date for the Writ of Error is 2 September 25, 2018. The Proposed Intervenors filed this Motion to Intervene on September 7, 2018. Plaintiffs filed a direct appeal on the same day. Defendants Telesca and Frank now oppose Proposed Intervenors’ Motion to Intervene because the Proposed Intervenors have failed to demonstrate they are in any way necessary to this proceeding, and because they fail to demonstrate that intervention is merited. B. INTERVENTION IS INAPPROPRIATE Under Connecticut law, a party is “deemed necessary if its presence is absolutely required in order to assure a fair and equitable trial.” Caswell Cove Condo. Ass'n, Inc. v. Milford Partners, Inc., 58 Conn. App. 217, 223-24 (2000). Courts have developed a four-factor test to determine if a party is “necessary1” and thus has the right to intervene. Those factors are: (1) the motion to intervene must be timely; (2) the moving party must have a direct and substantial interest in the subject matter of the litigation; (3) the moving party's interests must be impaired by disposition of the litigation without the party's involvement; and (4) the moving party's interest must not be represented adequately by any other party to the litigation. Episcopal Church in Diocese of Connecticut v. Gauss, 302 Conn. 386, 397–98 (2011). Here, the Proposed Intervenors’ Motion fails to demonstrate how any of these factors are met in this case. We begin with the third and fourth factors because they are at the heart of the analysis. In terms of the fourth factor, plaintiffs in this case more than adequately represent the Proposed Intervenors’ interests – they are, in fact, identical. When the interests of the existing parties are “identical” to those of the party applying for intervention, courts will presume adequate representation. Gauss, 302 Conn. at 399. When adequate representation is presumed, “an 1 The Proposed Intervenors have not asserted in their Motion that they are indispensable or even necessary parties. 3 applicant for intervention must show there is adversity of interest, collusion, or nonfeasance on the part of the existing party.” Id. In this case, the Proposed Intervenors’ interests are completely represented by the existing parties, as plaintiffs have already filed an appeal seeking the same result the Proposed Intervenors seek: a finding that the trial court’s decision was in error. The Proposed Intervenors’ attempt to suggest their interests are not represented by the existing parties because the Proposed Intervenors’ interest is “limited to the 2018 election,” Motion at 2, is irrelevant and unpersuasive. That the existing parties have an interest – the endorsement process in the 2018 election and future elections – within which the Proposed Intervenors’ interest is subsumed – the endorsement process in the 2018 election only – does not mean that the two interests are not identically aligned (in fact, it proves the opposite). In addition, because they seek the same result as the plaintiffs in this case, the Proposed Intervenors have likewise failed to meet the third factor which requires the Proposed Intervenors to demonstrate how their interests would be “impaired” in the disposition of this case without their involvement. The plaintiffs have appealed the trial court’s MOD and seek an appellate court ruling reversing the MOD – the presence of the Proposed Intervenors would add nothing to that disposition, and the Proposed Intervenors’ Motion does not suggest any facts to the contrary. Turning to the second factor, the Proposed Intervenors utterly fail to demonstrate how they have a uniquely “direct and substantial interest” in this case. Indeed, at the time of trial, the Proposed Intervenors’ interest was no different from that of any other Connecticut citizen. That the Proposed Intervenors essentially seek the right to be endorsed by a group (and thus to appear on the ballot not once but twice) that has been held by law to be unable to endorse them does not transform their interests into “direct and substantial” ones. 4 Finally, the Proposed Intervenors fail to demonstrate their Motion to Intervene is timely. In assessing timeliness, courts look to “how long the intervenor was aware of an interest before he or she tried to intervene, any prejudicial effect of intervention on the existing parties, and prejudicial effect of a denial on the applicant and consideration of any usual circumstances either for or against timeliness.” Rosado v. Bridgeport Roman Catholic Diocesan Corp., 60 Conn. App. 134, 146 (2000). In this case, the Proposed Intervenors claimed to be endorsed on August 20, but waited until September 7 to file this Motion. More importantly, granting this Motion would have great prejudicial effect on the existing parties by jeopardizing the significant investment made by the parties in preparing and presenting the case and the trial court in hearing and deciding it. See Wykeham Rise, LLC v. Zoning Comm’n of Town of Washington, 2013 WL 812494, at *1-3 (Conn. Super. Feb. 4, 2013) (Pickard, J.) (finding “delay and prejudice” to be “extreme” where parties have already invested time and resources to reach a resolution to the case). Allowing a party whose interests so significantly mirror the interests of the existing parties to intervene at this juncture would likewise cause “extreme” prejudice to the parties. For all these reasons, the Court must deny the Motion to Intervene. THE DEFENDANTS, By__/s/William M. Bloss_______________ William M. Bloss Alinor C. Sterling Nico Gurian Koskoff, Koskoff & Bieder, P.C. 350 Fairfield Avenue Bridgeport, Connecticut 06604 Telephone No.: 203-336-4421 Juris No. 32250 5 CERTIFICATION I hereby certify that a copy of the attached has been served in accordance with the applicable Rules of Practice and/or Procedure on September 14, 2018 on: Domenico M. Chieffalo 36 Mill Plain Rd- Ste 305 Danbury, CT 06811 Bryan Thomas Cafferelli 129 College Place Fairfield, CT 06824 Matthew Joseph Grimes Jr. 11 Orchard Street Brookfield, CT 06804 Benjamin S. Proto Jr. 2885 Main Street Stratford, CT 06614 Proloy Das, Esq MURTHA CULLINA LLP (040248) CITYPLACE ONE 185 ASYLUM STREET HARTFORD, CT 061033469 Hurwitz Sagarin Slossberg & Knuff LLC 147 North Broad Street Milford, CT 06460 Dey Smith Steele LLC 9 Depot Street Milford, CT 06460 Maura Bridget Murphy-Osborne Ag-Special Lit 2nd Fl 55 Elm Street PO Box 120 Hartford, CT 06141 __/s/William M. Bloss_________ William M. Bloss 6