Opinion
No. LLI CV-11-6004173S
May 6, 2011
MEMORANDUM OF DECISION
I. Application for Writ of Mandamus
The plaintiff brought this petition for mandamus by writ originally served on March 17, 2011. The plaintiff thereafter served a corrected summons and complaint on March 18, 2011. The plaintiff seeks a mandamus ordering the defendant town clerk for the Town of Bethlehem to decertify the results of a referendum held on February 17, 2011. He further seeks a mandamus directing the town clerk, the Registrar of Voters for the Town of Bethlehem, and the defendant Board of Education ("Board") for Regional School District 14 to hold a new referendum. Finally, he seeks a mandamus ordering the Board to halt all changes to the existing Region 14 school district structure until a new referendum can be held.
The defendants oppose the application, arguing that this court lacks personal and subject matter jurisdiction in this case. The defendants also oppose the application on the merits. This matter came before the court and was heard on April 11, 2011. The defendants filed post-hearing briefs on April 18, 2011; the plaintiff replied to those memoranda on April 25, 2011. The application is denied.
On April 27, 2011, the defendants moved to strike the plaintiff's April 25, 2011 memorandum. The defendants argue that the plaintiff misunderstood the court's instructions regarding the briefing schedule. Any confusion regarding the briefing schedule is the fault of the court and not the parties. The court has considered all briefs filed in this case.
II. Background
The application that is before this court is attended by a long and contentious history. Regional School District 14 is a regional district made up of the towns of Bethlehem and Woodbury. In October 2006, the Board authorized the Superintendent of Schools for the district to reconfigure the two elementary schools in the district. The reconfiguration made the elementary school in Bethlehem a kindergarten through second grade ("K-2") school for all district students and the elementary school in Woodbury a third grade through fifth grade ("3-5") elementary school for all district students. The reconfiguration of the schools resulted in numerous changes to the operations of both elementary schools.
In June 2007, two residents of Bethlehem moved this court to enjoin the Board from continuing the reconfiguration. Pratt v. Board of Education for Regional School District #14, Superior Court, judicial district of Litchfield, Docket No. 074006100 (December 15, 2009, Pickard, J.) ( 49 Conn. L. Rptr 10). The court initially ruled in favor of the defendant, but a subsequent opinion by our Supreme Court caused Judge Pickard to grant reargument. Following reargument, the court ruled in favor of the plaintiffs, entering a declaratory judgment that the reconfiguration of the two elementary schools constituted a non-incidental amendment to the regional plan. Such an amendment, the court ruled, had to be effected pursuant to General Statutes § 10-47c. The court also issued a permanent injunction, ordering the defendant to restore the K-5 schools in Bethlehem and Woodbury. Thereafter, the parties agreed by stipulation to delay the restoration of K-5 schools until the commencement of the 2011-2012 school year. The court approved the stipulation and entered judgment accordingly.
Regional School District No. 12 v. Town of Bridgewater, CT Page 10894 292 Conn. 784, 974 A.2d 709 (2009).
General Statutes § 10-47c provides for various regional school districts' events to be effected by means of referenda.
On February 17, 2011, the Towns of Bethlehem and Woodbury held a referendum to change the regional plan. If the referendum passed, the K-2/3-5 elementary school structure, which had been in place since the 2007-2008 academic year, would continue. If it failed, the towns would return to the K-5 structure at the beginning of the 2011-2012 academic year pursuant to the stipulation approved and ordered by the court in Pratt.
The referendum proceeded pursuant to General Statutes § 10-47c. In Woodbury, the vote was substantially in favor of changing the regional plan, with a final vote tally of 1,657 in favor of changing the regional plan and 809 voting against the change. In the Town of Bethlehem, however, a majority voted against changing the regional plan by a margin of 580 to 541. For the referendum to pass, both towns had to vote in favor of the question. Since that did not happen, the referendum failed. Consequently, the towns are now in the process of restoring the K-5 schools in each town, a change that will take effect in the 2011-2012 academic year.
The plaintiff in this case claims to be aggrieved by alleged voting irregularities in the Town of Bethlehem. He claims that those irregularities vitiated the vote in that town. It is on the foregoing basis that he seeks a mandamus decertifying the results of the referendum, a mandamus that a new referendum be held, and a mandamus directing the Board to cease making the changes that are now underway in preparation for the restoration of K-5 elementary schools beginning in the fall of 2011.
III. Jurisdiction
The plaintiff claims to have achieved personal jurisdiction over the defendants by virtue of service of process on the town clerk for the Town of Bethlehem, Ms. Kathleen Gallo. The Board moves to dismiss (#110) pursuant to Practice Book § 10-31, arguing that the plaintiff did not make service in accordance with the requirements of General Statutes § 52-57(b)(4). The individual defendants, Anne Marie Mastroianni, Melissa Russell and Kathleen Gallo (the "individual defendants") move to dismiss for lack of subject matter jurisdiction (#108). Both motions to dismiss were argued at the hearing on April 11, 2011, the motions were fully briefed, and both motions will be addressed in this memorandum of decision.
The individual defendants also adopt the arguments advanced by the Board in its motion to dismiss based on lack of personal jurisdiction.
1. The Board's Motion to Dismiss (#110)
The Board focuses on the requirements of General Statutes § 52-57(b) which provides in relevant part that "[p]rocess in civil actions against the following-described classes of defendants shall be served as follows: . . . (4) against a school district, upon its clerk or one of its committee; (5) against a board, commission, department or agency of a town, city or borough, notwithstanding any provision of law, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency . . ."
The return of service shows that the marshal provided the town clerk with two copies of the process.
In this case the defendant is the board of education for a regional school district. The Board argues, therefore, that service should have been effected on either the district's clerk or on one of the members of the Board's committee. The return of service (#103) reflects, instead, in-hand service upon Ms. Kathleen Gallo, the clerk for the Town of Bethlehem.
The return of service also shows in-hand service upon defendants Mastroianni and Russell.
The Board acknowledges that service on the clerk of the town would be sufficient, pursuant to General Statutes § 52-57(b)(5), if the Board were a local board of education. However, it argues that a board of education for a regional school district board must be made pursuant to General Statutes § 52-57(b)(4). The Board's theory is that, while local boards of education and school districts might be separate, a regional school district and a regional board of education are inseparable.
The plaintiff objects to the Board's motion to dismiss, arguing that regardless of whether a board of education acts for a single town or, in this case, for two adjacent towns, it is still a "board . . . of a town" for purposes of service of process pursuant to General Statutes § 52-57(b)(5). The plaintiff relies, generally, on Board of Education of the Town of Avon v. Connecticut State Employees, 210 Conn. 531, 543, 556 A.2d 572 (1989), for the proposition that boards of education and school districts are "inseparable." Our Supreme Court ruled that "a board of education is not a school district . . ." Id. However, that case did not involve a challenge regarding service of process, nor did it involve a regional school district, and so the ruling in Board of Education of the Town of Avon is not dispositive of the question before this court.
A plain language analysis of 52-57(b) is sufficient to resolve the issue that is presented. The legislature drew a clear distinction between service upon a school district (effected pursuant to General Statutes 52-57(b)(4)) and service upon "a board" (effected, as in this case, pursuant to General Statutes 52-57(b)(5)). It is true that Section 52-57(b)(5) refers to service of process upon a board "of a town" (emphasis added) and makes no reference to service of process upon a board for "a regional school district," but neither does Section 52-57(b)(4) specifically address service of process upon a "regional school district." It simply provides for a method of service of process on "a school district."
General Statute § 52-57(b) provides clear direction to a litigant as to how to effect service of process upon municipalities, their employees, and their many subdivisions. This court will not read that statute in a manner that finds an ambiguity where none exists. In any case, "any ambiguities should be resolved in a manner that furthers, rather than thwarts, [an] act's remedial purpose. We are not free . . . to create ambiguity when none exists; in other words, we cannot accomplish a result that is contrary to the intent of the legislature as expressed in the act's plain language." (Internal quotation marks omitted.) Vincent v. City of New Haven, 285 Conn. 778, 792, 941 A.2d 932 (2008). The defendant is a "board," and was properly served pursuant to General Statutes § 52-57(b)(5). See Saggese v. Board of Education, Regional School District No. 14, Superior Court, judicial district of Litchfield, Docket No. 065000542 (December 12, 2006, Brunetti, J.) [ 42 Conn. L. Rptr. 481] (Section 52-57(b)(4) governs service of process on a school district; section 52-57(b)(5) governs service of process on a board of education for a regional school district). Accordingly, the motion to dismiss is denied.
To the extent the individual defendants seek to adopt the Board's motion to dismiss, and are seeking dismissal of this action by challenging service of process upon them, that motion is also denied. As noted, note 6, supra, the marshal made in-hand service of process upon the town clerk and also upon each of the individual defendants. General Statutes §§ 52-57(a) and 52-57(b)(7).
2. The Individual Defendants' Motion to Dismiss (#108)
The individual defendants moved to dismiss the complaint for lack of subject matter jurisdiction. Subject matter jurisdiction refers to the power of the court "to hear and determine cases of the general class to which the proceedings in question belong." (Internal quotation marks omitted.) Southern New England Telephone Co. v. Dept. of Public Utility Control, 261 Conn. 1, 21, 803 A.2d 879 (2002). The court must consider and decide the issue of jurisdiction before proceeding further. Figueroa v. CS Ball Bearing, 237 Conn. 1, 4, 675 A.2d 845 (1996). "Standing is the legal right to set judicial machinery in motion." (Internal quotation marks omitted.) Blumenthal v. Barnes, 261 Conn. 434, 441, 804 A.2d 152 (2002). Only parties with a "substantial and legitimate interest" can bring an action. Stamford Hospital v. Vega, 236 Conn. 646, 657, 674 A.2d 821 (1996); see also Ganim v. Smith Wesson Corp., 258 Conn. 313, 780 A.2d 98 (2001) (injury must be direct, not indirect, remote or derivative); Ramos v. Vernon, 254 Conn. 799, 809, 760 A.2d 1257 (2000) (party must make "colorable claim of direct injury"). "[E]very presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Massey v. Branford, 119 Conn.App. 453, 458, 988 A.2d 370, cert. denied, 295 Conn. 913, 990 A.2d 345 (2010).
The individual defendants assert, in their memorandum, that the co-defendant Board intends to adopt and incorporate by reference the motion to dismiss submitted by the individual defendants. However, the Board, in its memorandum, included a footnote reference stating that it "may" join in the individual defendants' motion to dismiss. In the absence of a clear statement to the contrary, the court concludes that its ruling on the individual defendants' motion to dismiss will bind all parties.
The essence of the individual defendants' assertion that the court lacks subject matter jurisdiction is that, in their view, the plaintiff lacks standing because he is not an "aggrieved person" as that phrase is used in General Statutes § 9-371b. See Beckish v. Manafort, 175 Conn. 415, 419 399 A.2d 1274 (1978) (if the applicant cannot establish that he is aggrieved, he lacks standing to bring the action). An aggrieved person is one who, first, alleges a specific, personal and legal interest in the subject matter. Second, he must establish that his interest has been specially and injuriously affected by the decision. Nader v. Altermatt, 166 Conn. 43, 51, 347 A.2d 89 (1974).
The plaintiff claims that he is aggrieved pursuant to General Statutes §§ 9-371b(1), 9-371b(2), and 9-371b(3). Those sections provide, in relevant part, as follows: "Any person (1) claiming to have been aggrieved by any ruling of any election official in connection with a referendum, (2) claiming that there has been a mistake in the count of votes cast for a referendum, or (3) claiming to be aggrieved by a violation of any provision of section 9-355 . . . may bring a complaint to any judge of the Superior Court for relief from such ruling, mistake, or violation."
The plaintiff asserts that he is an elector in the Bethlehem, and that he was an elector who voted in the February referendum. The plaintiff's complaint alleges that because election officials in Bethlehem did not follow state-mandated procedures for checking electors' identities during the referendum, and did not remove "incompetent" checkers, the referendum vote was inaccurate "in that people who were not electors may have been permitted to vote." (Emphasis added.) The plaintiff offered affidavits and testimony from other electors from the Town of Bethlehem, all of whom claimed that they were not required to produce identification prior to voting.
The issue presented appears to be a matter of first impression. None of the parties has identified Connecticut authority that supports or rejects the proposition that a failure to require an elector to produce identification must result in the decertification of a referendum.
The plaintiff notes that General Statutes § 9-261 requires electors to present a form of identification before voting. The evidence indicates that approximately five percent of those who voted in the referendum did not produce identification. Therefore, the plaintiff concludes, such individuals voted illegally. The plaintiff claims, somewhat hyperbolically, that the failure to require all voters to produce identification was a "flagrant and outright violation of . . . a fundamental tenet of the Connecticut election process . . ." He claims that the defendants' "violations debased the referendum vote into a free-for-all," and that the official checker's error "smacks plainly of ballot-box stuffing." The plaintiff's proof did not support the foregoing claims.
In Bortner v. Town of Woodbridge, 250 Conn. 241, 253-54, 736 A.2d 104 241 (1999), our Supreme Court made clear that "a court should be very cautious before exercising its powers . . . to vacate the result of an election and order a new election." See Caruso v. Bridgeport, 285 Conn. 618, 637-38, 941 A.2d 266 (2008). In Bortner, the Court interpreted a statute not at issue in this case, General Statutes § 9-328, and concluded that a new election cannot be ordered unless there were "substantial errors in the rulings of an election official or officials" and as a result of those errors, the reliability of the result of the election "is seriously in doubt." The plaintiff argues that the error in this case was substantial in that the official checker did not employ a statutorily mandated anti-fraud procedure, thus compelling the conclusion that the result of the election "is seriously in doubt."
The resolution of the question presented in the individual defendants' motion to dismiss on the grounds of lack of subject matter jurisdiction goes to the heart of the plaintiff's application for a writ of mandamus. Thus, the resolution of the plaintiff's application for mandamus will necessarily resolve the merits of the individual defendants' motion to dismiss.
The individual defendants offer an additional basis for their motion to dismiss, noting that the plaintiff only brought his action against election officials in Bethlehem and not Woodbury which, they allege, is a necessary party to this cause of action. The individual defendants contend that an order that only Bethlehem decertify the results of the referendum is not an available remedy under General Statutes § 10-47c, which requires referenda to be held simultaneously in each town in the district. Nor, they claim, is such a remedy available under General Statutes § 9-371b, which does not allow for a bifurcated referendum as a remedy. The individual defendants rely on Bauer v. Sorto, 277 Conn. 829, 843, 896 A.2d 90 (2006), for the proposition that if the court orders a new election, the order must be fashioned in a manner that will, to the extent possible, approximate the first election. Thus, any order that there be a new referendum, the individual defendants argue, must require that such a referendum be held in both Bethlehem and Woodbury.
The court concludes that the plaintiff has failed to meet his burden; no mandamus will issue. Therefore, the question of whether a new referendum must be held in both towns is moot and need not be addressed.
IV. DISCUSSION 1. The Standard of Review
The remedy of mandamus has been recognized in Connecticut for more than two hundred years. "[A] mandamus is an extraordinary remedy, applied to cases of a public nature, which cannot be reached by the ordinary process of law; and . . . it is not adapted to the relief of private injuries, which may happen between individuals, because it is dilatory and expensive . . ." In re Strong's Case, Kirby (Conn.) 345, 346 (1787).
"The requirements for the issuance of a writ of mandamus are well settled. Mandamus is an extraordinary remedy, available in limited circumstances for limited purposes . . . It is fundamental that the issuance of the writ rests in the discretion of the court, not an arbitrary discretion exercised as a result of caprice but a sound discretion exercised in accordance with recognized principles . . . That discretion will be exercised in favor of issuing the writ only where the plaintiff has a clear legal right to have done that which he seeks . . . The writ is proper only when (1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy . . . Even satisfaction of this demanding [three-pronged] test does not, however, automatically compel issuance of the requested writ of mandamus . . . In deciding the propriety of a writ of mandamus, the trial court exercises discretion rooted in the principles of equity . . ." (Citation omitted; internal quotation marks omitted.) AvalonBay Communities, Inc. v. Sewer Commission, 270 Conn. 409, 416-17, 853 A.2d 497 (2004).
2. The Evidence Presented at the Hearing
The plaintiff alleges, and the defendants do not dispute, that the official checker in Bethlehem did not require electors to produce identification. The evidence established that the registrars of voters in Bethlehem were not aware of the requirement that identification be produced at a referendum held pursuant to General Statutes § 10-47c, a requirement that became effective in 2000. The registrars of voters are responsible for training the official checker. The democratic registrar of voters, defendant Maria Mastroianni, testified that Bethlehem had held thirty-eight referenda since 2000. Electors were not required to produce identification in any of those referenda. The registrar testified that this was an error on her part. There was no evidence that the situation at hand was anything but an unintentional error.
The official checker for Bethlehem testified that approximately ninety-five percent of all electors who voted in the February 2011 referendum voluntarily produced their identification, even though they were not asked to do so. Since 1,121 people voted in the February 2011 referendum in Bethlehem, approximately 56 people did not produce identification.
The plaintiff and five other electors in Bethlehem testified that they voted in the referendum but that they were not asked to produce their identification prior to voting. The plaintiff attached nine affidavits to his complaint, all of which were signed by electors in Bethlehem who were not asked to produce their identification prior to voting in the referendum. One of those who testified at the hearing did not submit an affidavit. Thus, the plaintiff established that a total of ten electors were not asked to produce their identification before voting in the referendum.
One of the affidavits was signed by the plaintiff.
Notably, none of the plaintiff's witnesses testified that they had any information that anyone who voted in the referendum was not an elector of the Town of Bethlehem, although the plaintiff testified that he had only heard "fishing hole gossip" that non-electors may have voted. There was no evidence that any elector, or anyone else, advised the official checker or any other election official that the checker should have been requesting a form of identification from the voters.
The plaintiff introduced the Region 14 referendum "official checklist" completed by the official checker during the February 2011 referendum. Plaintiff's Exhibit 1. The exhibit shows various names of voters crossed off throughout the list. The names of all of the electors who testified at the hearing were crossed off in that official checklist. The town clerk, Kathleen Gallo, testified that the official checklist was available to the general public the day after the referendum. Thus, the plaintiff had two full months to investigate the issue of whether any voter whose name was crossed off in the official checklist did not, in fact, cast a vote in the referendum. The plaintiff did not offer any such evidence.
The defendants argue, in the alternative, that even if this court finds that the results of the February 2011 referendum should be decertified, equity does not support the full relief sought by the plaintiff. The second and third prayers for relief call for a mandamus directing the Bethlehem town clerk and the Board to hold a new referendum, and to halt the ongoing school reconfiguration process.
The defendants point out that Regional District School 14 was not required to hold the referendum in the first place. If the referendum had never been held, then Regional District 14 would have returned to the K-5 configuration which it has been working toward pursuant to the Pratt order. The Chairman of the Board, Stephen Sordi, testified that a majority of the Board favors the K-5 configuration that the towns are currently restoring pursuant to the court order issued in Pratt. However, the Board chose to put the issue before the voters. Defendant's Exhibit 1, the "2010 Board of Education Amendment Report," states that the Board "felt that it is in the best interest of the two communities to allow the voters to decide this issue." Thus, in July 2010 the Board voluntarily chose to initiate the amendment process that culminated in the referendum of February 2011. The defendants argue that the Board should not be ordered to carry out a discretionary act.
The defendants also contend that another referendum will, at this point, generate substantial expense to the town, disruption to academic and administrative staff, and confusion and discord among the students and their families, all of whom currently expect to return to the K-5 structure. The defendants introduced evidence by the interim business manager and the interim superintendent for Regional School District 14. Both men testified that, since the referendum failed, they have been engaged in been making staffing changes, revising bus routes, and engaging in communications with affected parents, advising them when and where their children will be attending school during the 2011-2012 academic year. The court heard evidence that parents rely on the foregoing information to arrange child care, transportation, and personal schedules. Finally, the current budget contemplates a K-5 structure for the next academic year.
If a new referendum is ordered, and passes, a new budget will have to be established and all of the current elementary school planning will have to be altered. Alternatively, if a new referendum is ordered and fails, then the transitional planning, which will have been in limbo pending the outcome of such a referendum, will have to be re-started. Either scenario will work a great hardship on the school district. The interim superintendent summarized the district's position by testifying that the re-configuration is three-quarters complete. There is currently a budget in place, the staff is in transition, and it would be harder on teachers, administrative staff, students, and families to continue with the current K-2/3-5 configuration than to complete the process of returning to a K-5 structure.
3. The Statute at Issue
The statute at issue is General Statutes § 9-261(a), which provides, in relevant part, as follows: "In each primary, election, or referendum, when an elector has entered the polling place, the elector shall announce the elector's street address, if any, and the elector's name to the official checkers in a tone sufficiently loud and clear as to enable all the election officials present to hear the same. Each elector who registered to vote by mail for the first time on or after January 1, 2003, and has a mark next to the elector's name on the official registry list, as required by section 9-23r, shall present to the official checkers, before the elector votes, either a current and valid photo identification that shows the elector's name and address or a copy of a current utility bill, bank statement, government check, paycheck or other government document that shows the name and address of the elector. Each other elector shall (1) present to the official checkers the elector's Social Security card, or any other preprinted form of identification which shows the elector's name and either the elector's address, signature or photograph, or (2) on a form prescribed by the Secretary of the State, write the elector's residential address and date of birth, print the elector's name and sign a statement under penalty of false statement that the elector is the elector whose name appears on the official checklist."
The plaintiff argues that he need only establish that the official checker did not require identification from every voter. He argues that he need not establish fraud, citing Wrinn v. Dunleavy, 186 Conn. 125, 148, 440 A.2d 261 (1982). The latter claim oversimplifies the situation and holding in Wrinn. In Wrinn, the defendant prevailed in a mayoral election by eight votes. Id., 126-27. Since that case involved an election, unlike the situation before this court, the action was brought under General Statutes § 9-329a (which addresses "Contests and complaints in connection with any primary"). Id., 127. In Wrinn, the eight-vote margin was significant, because it was established at trial that twenty-six absentee votes had been improperly cast and could not be counted. Nonetheless, there was no evidence of fraud, and so the trial court did not order a new election.
On appeal, our Supreme Court found that the statute that was not followed with regard to the absentee ballots imposed mandatory requirements that were designed to prevent fraud. Id., 149. The Court noted that it was particularly concerned with irregularities involving absentee ballots, "because there is considerable room for fraud in absentee balloting and that a failure to comply with the regulatory provisions governing absentee voting increases the opportunity for fraud." Id., 143-44. (Internal quotation marks omitted.) The Supreme Court then found that since "the twenty-six absentee voters in this case did not substantially comply with the mandatory provisions of [General Statutes] § 9-146(b) their votes may not be counted." (Emphasis omitted.) Id., 149. "Thus, the trial judge erred in holding that there had been substantial compliance with the requirements of [General Statutes] § 9-146(b) because, in fact, there had been no compliance at all." Id., 149-50.
Based on Wrinn, the plaintiff argues that the official checker's violation of Section 9-261(a) is a failure to substantially comply with the statute, it seriously undermined the reliability of the result of the election, and so there must be a new referendum. Wrinn does not require such a result in this case.
In Wrinn, the court determined that there was no compliance with the statute "at all." Id., 150. In Wrinn, the only possible conclusion was that the result of the election was beyond being "seriously in doubt," indeed, it was necessarily incorrect. Wrinn v. Dunleavy, supra, 186 Conn. 150. In Wrinn, the plaintiff would have won the election if the improper absentee ballots not been counted. The court ordered a new election in Wrinn because (a) the twenty-six absentee ballots were invalidated; (b) the defendant had only won by eight votes and (c) the parties stipulated that the ballots had been cast for the defendant. Id., 129, 150.
The Supreme Court's discussion of "substantial compliance" with Section 9-146(b) in Wrinn was limited to a determination of whether the absentee ballots in question were valid ballots, and thus, whether there was error in the election official's decision to count them. Id., 149-50. The court explained that "[w]hether fraud has been committed in the handling of certain absentee ballots is irrelevant to the question of whether there has been substantial compliance with all of the mandatory provisions of the absentee voting law . . . Had the legislature chosen to do so, it could have enacted a remedial scheme under which ballots would only be invalidated upon a showing of fraud or other related irregularity. The legislature has instead enacted a regulatory scheme designed to prevent fraud as far as practicable by mandating the way in which absentee ballots are to be handled. The validity of the ballot, therefore, depends not on whether there has been fraud, but on whether there has been substantial compliance with the mandatory requirements." (Citation omitted; emphasis added.) Id., 149.
The issue before the court is one of first impression. Although the parties offer the guidance presented by, principally, Caruso v. Bridgeport, supra, 285 Conn. 618, Bortner v. Town of Woodbridge, supra, 250 Conn. 241, and Wrinn v. Dunleavy, supra, 186 Conn. 125, each of those cases involved an election, not a referendum. Each case involved a statute or situation different than the one that is at issue in this case, and each appeal was brought pursuant to statutory authority that is not applicable in this case.
Caruso v. Bridgeport, supra, 285 Conn. 618 and Wrinn v. Dunleavy, supra, 186 Conn. 125 each involved a primary election for mayor. In each case the appeal to the superior court was brought pursuant to General Statutes § 9-329a. In Caruso the plaintiff alleged a violation of General Statutes §§ 9-436e and 9-229. In Wrinn, the plaintiff alleged a violation of General Statutes § 9-146b. In Bortner v. Town of Woodbridge, supra, 250 Conn. 241, the case involved a contested election for a seat on the board of education. The appeal to the superior court was brought pursuant to General Statutes § 9-328. The plaintiff alleged that voting machine malfunctions had prevented voters from voting for write-in candidates.
To the extent that the standard expressed in Bortner and Wrinn, as restated in Caruso, have application in this case, the court will review General Statutes § 9-261 through the prism of the Caruso requirement that "the plaintiff must show (1) there were substantial violations of the requirements of the statute . . . and (2) as a result of those violations, the reliability of the result of the election is seriously in doubt." (Emphasis in original; citations omitted; internal quotation marks omitted.) Caruso v. Bridgeport, supra, 285 Conn. 649-50.
In the course of construing General Statutes § 9-261, the "fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . Statutory provisions governing election contests are strictly construed." (Citation omitted; internal quotation marks omitted.) Caruso v. Bridgeport, supra, 285 Conn. 638-39.
The obvious purpose of requiring electors to produce identification is to ensure that only legitimate electors are allowed to vote. However, the requirement that electors produce identification is only a part of the statutory scheme intended to ensure that legitimate electors vote. The statute imposes other requirements in order to accomplish that goal. When an elector enters the polling place, the elector must "announce the elector's street address, if any, and the elector's name to the official checkers in a tone sufficiently loud and clear as to enable all the election officials present to hear the same." General Statutes § 9-261(a). Then, depending on whether and when the elector registered to vote by mail, a valid photo identification, a copy of a utility bill, a bank statement, a government check, a paycheck or another government document showing the elector's name and address must be produced. All other electors must either present a social security card, "or any other preprinted form of identification which shows the elector's name and either the elector's address, signature or photograph" or, alternatively, the elector can complete a form confirming that the elector is the person whose name appears on the official checklist. Id. Only after the applicable, foregoing step is completed may the official checker check the name of the elector on the official checklist. Id.
It is readily apparent that the requirement that identification be produced is intended to prevent fraud. To the extent that recourse to the legislative history is warranted, although such recourse seems unnecessary, that history supports the foregoing conclusion. See 36 S. Proc., Pt. 12, 1993 Sess. 4089-4481. The court notes, however, that by adding the "identification" requirement, the legislature was attempting to give some additional guarantees that the elector was, in fact, the elector listed on the official checklist. The statute offers a variety of alternatives to producing, for example, a particular and specific photo identification card.
For example, the legislative history reflects a concern expressed by then-Representative M. Jodi Rell who noted that she was listed on voter rolls as M. Jodi Rell but that she had neither a driver's license nor a credit card that identified her as M. Jodi Rell. In response, Representative Rapoport advised her that, under the statute, she could simply say, "`may I sign in' and that would be acceptable." 36 S. Proc., Pt. 12, 1993 Sess., p. 9873.
There is credible evidence, and the court finds, that ninety-five percent of the voters did produce identification. In view of the multiple steps that must be taken before one is allowed to vote in a referendum, pursuant to General Statutes § 9-261, and since ninety-five percent of all Bethlehem voters produced identification, it is not at all clear that the checker's failure to require identification from five percent of the voters constitutes a "substantial" violation of the statute.
There is no evidence that any elector refused to produce identification but was nonetheless permitted to vote. The electors and the official checker came face to face; the Wrinn court's particular concern about the potential for fraud involving absentee ballots is not present in this case. See Wrinn v. Dunleavy, supra, 186 Conn. 125. Further, this court is mindful of the admonition in Bortner v. Woodbridge, supra, 250 Conn. 241, that it should be "very cautious" before vacating the results of an election — an admonition that logically applies with at least equal force when the challenge is to a referendum. The court concludes that, under the circumstances of this case, that there were no substantial violations of General Statutes § 9-261(a).
Even if one were to conclude that the failure to require the production of identification from all electors was a "substantial" violation, however, there is no reasonable basis on which to conclude that the reliability of the election is "seriously in doubt." On the contrary, the plaintiff was unable to identify a single instance in which anyone voted in the referendum who was not an elector in Bethlehem. The town clerk testified that the official checklist was available to the general public the day after the referendum, February 18, 2011; the hearing was held on April 11, 2011.
Thus, nearly two full months passed between the referendum and the hearing, yet the plaintiff failed to identify even a single case in which a Bethlehem voter was disenfranchised in any way.
The plaintiff argues that the affidavits and testimony that he produced support his claim that the result of the election is "seriously in doubt." On the contrary, the fact that every affidavit was signed by a legitimate elector who was allowed to vote undercuts the plaintiff's claim. It highlights the fact that he was unable to uncover a single instance in which anyone, other than legitimate electors, were allowed to vote in the referendum. In the absence of any such evidence, the plaintiff is effectively urging the court to decertify the referendum based upon what he, himself, calls "fishing hole gossip." The court declines such an invitation.
Turning to the principles that the court must consider in determining whether a mandamus should issue, the court concludes that the evidence presented does not warrant the extraordinary remedy of mandamus. The expense of reversing course at this point, and returning to the K-2/3-5 structure that Regional School District 14 is leaving behind, is not justified when cast against the speculative claims of irregularity advanced by the plaintiff. Despite the plaintiff's histrionic claims, the evidence presented most assuredly does not make this a case of "ballot box stuffing." The evidence proffered by the plaintiff does not warrant the decertification of the referendum and the application for such an order of mandamus is denied.
The plaintiff seeks additional prayers for relief: an application for a mandamus that the town clerk hold a new referendum and a mandamus that the Board of Education for Regional School District 14 cease its preparations for a return to a K-5 structure until the new referendum is held. Since the plaintiff failed to establish that the February 2011 referendum should be decertified, the additional prayers for relief cannot and will not be granted. Further, the court recognizes that there are alternative and additional bases that compel the conclusion that the second and third prayers for relief should not be granted.
The record is clear that the Board chose to hold the February referendum and that it was not required to do so. Thus, the decision to hold the referendum was a definitively discretionary act. The failure to require identification from every elector was a failure of the official elector, not the Board, which has no role in the actual running of referenda. The plaintiff offers no analysis or support for his proposal that, in light of errors by the registrars and the official checkers, the Board should be ordered to hold a referendum that it is not obligated to hold. Similarly, the plaintiff, himself, has no "clear legal right" to demand that a referendum be held. That right is vested in the Board pursuant to General Statutes 10-47c. Since the plaintiff has no clear legal right to demand that a new referendum be held, he cannot prevail upon this court to order, through the issuance of a mandamus, that a new referendum be held. See AvalonBay Communities, Inc. v. Sewer Commission, supra, 270 Conn. 416-17.
All applications for mandamus are denied. So ordered.