Opinion
CV176062370S
03-24-2017
Tara Cook-Littman et al. v. Board of Selectman, Town of Fairfield et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR ORDER #121
Barbara N. Bellis, J.
In this mandamus action, following this court's entry of judgment in favor of the plaintiffs, the defendants filed a motion for order on March 15, 2017, requesting that the court transmit its findings of fact and its decision to the Supreme Court for the purpose of expediting review of the issue decided by this court, pursuant to General Statutes § 9-325. Additional briefs were filed on March 17, 2017. For the reasons discussed below, the court denies the defendants' motion.
General Statutes § 9-325 provides: " If, upon any such hearing by a judge of the Superior Court, any question of law is raised which any party to the complaint claims should be reviewed by the Supreme Court, such judge, instead of filing the certificate of his finding or decision with the Secretary of the State, shall transmit the same, including therein such questions of law, together with a proper finding of facts, to the Chief Justice of the Supreme Court, who shall thereupon call a special session of said court for the purpose of an immediate hearing upon the questions of law so certified. A copy of the finding and decision so certified by the judge of the Superior Court, together with the decision of the Supreme Court, on the questions of law therein certified, shall be attested by the clerk of the Supreme Court, and by him transmitted to the Secretary of the State forthwith. The finding and decision of the judge of the Superior Court, together with the decision of the Supreme Court on the questions of law thus certified, shall be final and conclusive upon all questions relating to errors in the rulings of the election officials and to the correctness of such count and shall operate to correct the returns of the moderators or presiding officers so as to conform to such decision of said court. Nothing in this section shall be considered as prohibiting an appeal to the Supreme Court from a final judgment of the Superior Court. The judges of the Supreme Court may establish rules of procedure for the speedy and inexpensive hearing of such appeals within fifteen days of such judgment of a judge of the Superior Court."
The defendants argue that the plaintiffs' mandamus action should be construed as being brought pursuant to General Statutes § 9-328, and consequently, that the expedited appeal provided for by § 9-325 is available in the present case. They further contend that the plaintiffs need not have brought the action pursuant to § 9-328; rather, the action need only to be " cognizable" under that statute. In response, the plaintiffs argue that their complaint is neither brought pursuant to § 9-328, nor cognizable under that statute.
The defendant Michael C. Tetreau filed separate memoranda arguing in support of the plaintiffs' position. For purposes of simplicity, the court's references herein to arguments of " the defendants" do not refer to those of Tetreau. References to arguments of " the plaintiffs" refer to those of the plaintiffs and Tetreau.
General Statutes § 9-328 provides in relevant part: " Any elector or candidate claiming to have been aggrieved by any ruling of any election official in connection with an election for any municipal office . . . may bring a complaint to any judge of the Superior Court for relief therefrom . . . If such complaint is made prior to such election or primary, such judge shall proceed expeditiously to render judgment on the complaint and shall cause notice of the hearing to be given to the Secretary of the State and the State Elections Enforcement Commission. If such complaint is made subsequent to such election or primary, it shall be brought not later than fourteen days after such election or primary . . . Such judge shall thereupon, if he finds any error in the rulings of the election official or any mistake in the count of the votes, certify the result of his finding or decision to the Secretary of the State before the tenth day succeeding the conclusion of the hearing. Such judge may order a new election or primary or a change in the existing election schedule. Such certificate of such judge of his finding or decision shall be final and conclusive upon all questions relating to errors in the ruling of such election officials, to the correctness of such count, and, for the purposes of this section only, such claimed violations, and shall operate to correct the returns of the moderators or presiding officers, so as to conform to such finding or decision, except that this section shall not affect the right of appeal to the Supreme Court and it shall not prevent such judge from reserving such questions of law for the advice of the Supreme Court as provided in section 9-325. Such judge may, if necessary, issue his writ of mandamus, requiring the adverse party and those under him to deliver to the complainant the appurtenances of such office, and shall cause his finding and decree to be entered on the records of the Superior Court in the proper judicial district."
The plaintiffs also argue that the defendants lack standing and that actions brought under § 9-328 are not automatically subject to Supreme Court jurisdiction pursuant to § 9-325. Given the court's conclusion concerning the inapplicability of § 9-328 to the present case, these arguments need not be addressed.
" The expedited review provided by § 9-325 may be invoked to obtain review of decisions on complaints brought under § § 9-324, 9-328, and 9-329a. It is not sufficient, however, that the plaintiff allege or even that the parties agree that the complaint is brought pursuant to one of these sections, because the review provided by § 9-325 is available only when the original complaint actually states a cause of action cognizable under § § 9-324, 9-328, or 9-329a. Such a complaint must concern a ruling of an election official or a mistake in the count of votes." (Internal quotation marks omitted.) Scheyd v. Bezrucik, 205 Conn. 495, 503, 535 A.2d 793 (1987); accord Wrinn v. Dunleavy, 186 Conn. 125, 134 n.10, 440 A.2d 261 (1982).
In the present case, the plaintiffs' complaint is not brought under § 9-328; the complaint makes no reference to that statute or its provisions. Moreover, the plaintiffs maintain that this mandamus action is not brought under that statute and that it is an action in equity. Although the plaintiff argues that § 9-328 cannot apply unless the plaintiffs' complaint is expressly brought under § 9-328, the court declines to reach that argument because, as discussed further below, the plaintiffs' complaint does not actually state a cause of action cognizable under § 9-328.
General Statutes § 9-328 provides in relevant part: " Any elector or candidate claiming to have been aggrieved by any ruling of any election official in connection with an election for any municipal office . . . may bring a complaint to any judge of the Superior Court for relief therefrom . . ." In Price v. Independent Party of CT-State Central, 323 Conn. 529, 147 A.3d 1032 (2016), the plaintiffs brought an action under General Statutes § 9-323, which uses language substantially identical to § 9-328. The plaintiffs in Price contended that the defendants, caucus officials, failed to adhere to certain statutory requirements concerning elections. Id., 537. The court declined to consider whether the defendants' actions constituted " rulings, " in part " because the
" For this court to exercise original jurisdiction under § 9-323 . . . an elector must claim that he or she is aggrieved by any ruling of any election official in connection with any election for . . . a senator in Congress . . ." (Internal quotation marks omitted.) Price v. Independent Party of CT-State Central, supra, 323 Conn. 535; see also General Statutes § 9-323. case may be resolved more readily by asking a different question: whether the caucus officials should be considered 'election official[s]' for the purposes of § 9-323 or something else entirely." Id., 537-38.
" Unlike the question of what constitutes a 'ruling, ' [the Supreme Court] has never had occasion to consider the meaning of 'election official.' Nor is that term clearly defined by statute." Price v. Independent Party of CT-State Central, supra, 323 Conn. 538. Although the court also noted that " [the Supreme Court's] cases have assumed that the term 'election official' applies to . . . [ inter alia ] municipal town clerks and selectmen"; (citation omitted; emphasis added) id. ; the court in Price relied solely on Miller v. Schaffer, 164 Conn. 8, 11, 320 A.2d 1 (1972), for that proposition. In Miller, electors sued selectmen, among others, " because the subject matter of the complaint in this action concerns their functions in the composition of electoral districts for the conduct of primaries and elections for members of the General Assembly, and are sued additionally as representatives of all municipal election officials charged with duties in the composition of electoral districts for and the conduct of such elections . . ." Miller v. Schaffer, supra, 164 Conn. 11.
The issue of whether selectmen are " election officials, " as that term is used in § 9-328, was not before the court in either Price or Miller, and the Price court took no position on the issue. The court in Price did, however, consider several factors in determining that caucus officials, at issue in that case, were not election officials.
First, the court in Price noted that " although the term 'election official' is not expressly defined by statute, the term 'election' is statutorily defined as any electors' meeting at which the electors choose public officials by use of voting tabulators or by paper ballots . . ." (Internal quotation marks omitted.) Price v. Independent Party of CT-State Central, supra, 323 Conn. 540. The court agreed with the contention that " [the caucus] cannot be considered an 'election' because its function was not to choose public officials but merely to nominate candidates for public office." Id., 540. Next, the court considered that caucus officials and election officials have dissimilar qualifications, because unlike election officials, " [c]aucus officials are not required to swear an oath or undergo training." Id. Finally, the court considered that " election officials and caucus officials not only have different qualifications but also serve different functions." Id., 541. " [W]hereas elections . . . are conducted by trained officials appointed by the state and municipalities, according to rules prescribed by statute, party caucuses . . . are structured and conducted almost exclusively by party operatives. In light of the significant disparity between the two procedures, it is unlikely that the legislature intended the term 'election official' in § 9-323 to include those individuals who administer party caucuses." Id., 542.
In the present case, although the defendants' conduct may qualify as a " ruling" under § 9-328, the court's interpretation of the term " election official" in Price indicates that the defendants here are not sued as election officials and were not acting in such capacity when they refused to schedule an election. The Board of Selectmen meeting at which the defendants refused to schedule the special election was not an election, because its function was not to enable electors to choose public officials by means of voting. To the contrary, their decision would have foreclosed the possibility of such election. Additionally, although there is nothing in the record concerning whether the defendants' qualifications are comparable to those of election officials, a review of the minutes from the Board of Selectmen meetings indicate that the meetings are less similar to an election than a political party's caucus, as the meetings did not involve nominating or otherwise selecting a political candidate for elected office. Instead, the meetings of the Board of Selectmen at issue in the present case merely preserved the office of an unelected replacement selectman by refusing to allow a special election to occur.
The plaintiffs' complaint concerned the board's refusal to schedule a special election, in what the plaintiffs alleged was a violation of a mandatory provision of General Statutes § 9-222. " The Supreme Court previously has construed the phrase ruling of [an] election official, as used in [General Statutes § ]9-328 . . . to mean some act or conduct by the official that . . . interprets some statute, regulation or other authoritative legal requirement, applicable to the election process. The Supreme Court has held that this test is broad enough to include conduct that comes within the scope of a mandatory statute governing the election process, even if the election official has not issued a ruling in any formal sense . . . Thus, [w]hen an election statute mandates certain procedures, and the election official has failed to apply or to follow those procedures, such conduct implicitly constitutes an incorrect interpretation of the requirements of the statute and, therefore, is a ruling." (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Wrotnowski v. Bysiewicz, 289 Conn. 522, 526-27, 958 A.2d 709 (2008). Accordingly, the board's refusal to schedule a special election is likely a " ruling, " within the meaning of § 9-328.
Minutes from several meetings were submitted by the parties in their Joint Stipulation of Facts, filed on March 6, 2017.
In addition to indicating that a complaint must concern an election official's ruling, the statute provides that such a ruling must be " in connection with an election." See General Statutes § 9-328. The statute requires certain procedures depending upon whether the complaint is made prior to or after an election or primary, and provides that a judge " shall cause notice of not less than three nor more than five days to be given to any candidate or candidates whose election or nomination may be affected by the decision . . ." General Statutes § 9-328. Moreover, upon finding an error in the ruling of an election official, a judge " may order a new election or primary or a change in the existing schedule." General Statutes § 9-328.
Although the statute contemplates an election that was held or will be held, here, no election had been scheduled or held, and no candidates had been nominated or elected. The procedures set forth in § 9-328 are set forth in relation to a scheduled or executed election, and provide for relief that relates to such election, none of which apply in the present case. Accordingly, the terms of the statute are not applicable.
Finally, the statutory language of § 9-328 does not provide for the relief sought by the plaintiffs in the present case. Although the statute authorizes the court to change an existing schedule related to an election or to issue an order of mandamus " requiring the adverse party and those under him to deliver to the complainant the appurtenances of such office, " the statute does not provide for an order of mandamus requiring the defendants to schedule a special election or any other mandamus relief.
For the foregoing reasons, the court denies the defendants' motion for order.