Opinion
No. CV03 40 42 03 S
July 15, 2003
MEMORANDUM OF DECISION RE AMENDED MOTION FOR TEMPORARY ORDER OP MANDAMUS
Before the court is plaintiffs' request for a temporary order of mandamus. The plaintiffs are electors in the Town of Stratford. The defendants are the Town of Stratford, Robert Calzone, councilman-at-large in that town and Patricia Ulatowski, the town clerk.
Connecticut General Statutes section 52-485 provides:
(a) The Superior Court may issue a writ of mandamus in any case in which a writ of mandamus may by law be granted, and may proceed therein and render judgment according to rules made by the judges of the Superior Court or, in default thereof, according to the course of the common law. CT Page 8413-ag
(b) When any writ of mandamus has been issued, requiring the party to whom it is directed to make a return, if the party fails to do so, the court may issue a peremptory mandamus.
(c) Any common law requirement that the state's attorney participate in any way in an action for mandamus is abolished.
Connecticut Practice Book Section 23-48 provides:
The plaintiff may attach to the complaint or subsequently file a motion under oath for a temporary order of mandamus to be effective until the final disposition of the cause. Such a motion shall be addressed to the court to which the action is returnable. The judicial authority may, if it appears upon hearing that the plaintiff will otherwise suffer irreparable injury, forthwith issue such an order or it may issue a rule to show cause why it should not be issued; but no such temporary order shall issue in any case, except where the state's attorney is the plaintiff, until the plaintiff has given to the opposing party a bond with surety, approved by the judicial authority, that the plaintiff will answer all damages should the plaintiff fail to prosecute the action to effect, unless the judicial authority shall find that the giving of such bond is unnecessary. Any party may at any time make a motion to the court that any such temporary order be dissolved.
The evidence introduced at the hearing on this matter established the following:
The municipal charter for the Town of Stratford requires that town appoint an election district revision committee every ten years. That committee is charged with realigning voting district boundaries. Town Charter, Plaintiff's Exhibit 1, Sections 7.1.4 through 7.1.5. The town charter mandates that:
The council shall by ordinance establish revised election districts in accordance with the recommendation of the commission, said ordinance to take effect at least ninety days prior to the next regular town election.
Town Charter Section 7.1.6.
Pursuant to charter the Town of Stratford appointed an election district revision commission. After a series of public meetings, on May 12, 2003 the Town of Stratford enacted an ordinance establishing a revised election district alignment. On May 29, 2003 the plaintiffs formed a committee in order to seek a referendum concerning the redistricting plan. The purpose of the referendum was to "rescind the redistricting ordinance passed by Town Council on 05/12/03 replace it with the redistricting proposal submitted by the Honorable Robert M. Calzone, Councilman-At-Large." Between June 2, 2003 and June 24, 2003 the plaintiffs secured signatures with a view toward requiring the town council to reconsider its prior ordinance or, in the alternative, submit CT Page 8413-ac the redistricting ordinance to town voters. The defendant town clerk, Ms Ulatowski, certified that the petitions were sufficient. The town council refused to accept the referendum petition.
The issue before this court is whether the plaintiffs have provided the evidence necessary to warrant a temporary order of mandamus.
This court must first address the relief sought in this case . . . "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 of law . . . 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 . . . The writ of mandamus is designed to enforce a plain positive duty, upon the relation of one who has a clear legal right to have it performed, and where there is no other adequate legal remedy . . . If a public official or public agency has a duty to perform a particular act and fails in the discharge of that duty, a writ of mandamus is the proper remedy for compelling performance of the act." Grasso v. Zoning Board of Appeals, 69 Conn. App. 230, 234-35, 794 A.2d 1016 (2002) (internal quotation marks omitted).
The plaintiff must establish that there is a clear legal right to have a duty performed. "Even [if] the plaintiff has a legal right to the matter sought, the writ will not issue if that right be nothing more than a naked right. In addition to a bare legal right, he must have a proper interest in, and a proper purpose to be served by, the doing of the act sought to be ordered . . . If the right sought to be enforced is or has become a mere abstract right, the enforcement of which will be of no substantial or practical benefit to the petitioner, the writ will not issue though otherwise the applicant would be entitled to it." Golden Hill Paugussett Tribe of Indians v. Weicker, 51 Conn. App. 552, 555, 723 A.2d 348 (1999).
In the present case the plaintiffs rely on the provisions of the town charter. That enactment is part of a statewide statutory scheme. "It is settled law that as a creation of the state, a municipality has no inherent powers of its own . . . A municipality has only those powers that have been expressly granted to it by the state or that are necessary CT Page 8413-ad for it to discharge its duties and to carry out its objects and purposes." Windham Taxpayers Association v. Board of Selectmen, 234 Conn. 513, 528, 662 A.2d 1281 (1995) (internal quotations omitted; internal citations omitted). "The legislature has been very specific in enumerating those powers it grants to municipalities." Simons v. Canty, 195 Conn. 524, 530, 488 A.2d 1267 (1985). See also General Statutes Title 7. Therefore the specific provisions of the town Stratford town charter are critical.
Section two of the Stratford town charter describes the composition and the duties of the town council. Section 2.2.7 dictates the procedure for the passage of ordinances. In Section 2.2.8 the charter provides "Resolutions, orders or votes passed by the council shall become effective immediately upon passage, unless an effective date is specifically stated herein but no ordinance shall go into effect until thirty days after its passage unless it is declared an emergency measure . . ." Council powers are enumerated in Section 2.2.1. Although the council has broad power to "make, alter and repeal ordinances" Section 2.2.1 does not include power over election regulation.
Town elections are controlled by section seven of the town charter. That section dictates that revised election districts must take effect at least ninety days before a general election. Town Charter 7.1.6.
The Town of Stratford is unusual insofar as its charter contains specific provisions for recall, referendum and initiative. The town charter gives voters a right to petition for each of these extraordinary proceedings. Turning to the initiative provisions first, pursuant to Town Charter 8.2.1, "The electors shall have the power at their option to propose ordinances, and other measures and to adopt the same at the polls, such power being known as initiative." Initiative petitions must be "signed by at least fifteen per centum . . . of the total number of electors who were entitled to cast their votes at the last preceding regular town election . . ." Town Charter 8.2.2. The charter also provides voters with the right to petition for the companion to the initiative, the referendum. Pursuant to Town Charter Section 8.3.1, "The electors shall have the power at their option to approve or reject at the polls, any measure, resolution, order or vote passed by the council . . ." The charter further provides "No further action shall be taken by authority of such measure, if, within thirty days after the final passage of any measure by the council, a petition signed by the electors of the town to the number of at least ten per centum of the electors who were entitled to cast their votes at the last preceding regular town election . . . Town Charter 8.3.2 CT Page 8413-ae
The provisions for ordinances, elections, initiative and referendum are all part of a duly enacted municipal charter. An ordinance is simply a municipal legislative enactment. Morris v. Newington, 36 Conn. Sup. 74, 80, 411 A.2d 939 (1979). It designates a local law of a municipal corporation, duly enacted by the proper authorities, prescribing general, uniform, and permanent rules of conduct relating to the corporate affairs of the municipality. Morris, 36 Conn. Sup. at 80; 5 McQuillin, Municipal Corporations (3d Ed.) § 15.01. An ordinance prescribes some permanent rule of conduct or of government which is to continue in force until the ordinance is repealed. Morris, 36 Conn. Sup. at 80.
All municipal ordinances must be consistent with both the power delegated by the state and with existing state statutes. Where statute and ordinance dealing with same matter conflict, statute prevails. Connecticut General Statutes Section 7-148.
Connecticut General Statutes 7-148 provides in relevant part:
(b) Ordinances. Powers granted to any municipality under the general statutes or by any charter or special act, unless the charter or special act provides to the contrary, shall be exercised by ordinance when the exercise of such powers has the effect of:
(1) Establishing rules or regulations of general municipal application, the violation of which may result in the imposition of a fine or other penalty including community service for not more than twenty hours; or
(2) Creating a permanent local law of general applicability.
In the present case the contested ordinance is part of a broad municipal and legislative scheme regulating the election process. See Connecticut General Statutes Section 9-169 et seq.
Connecticut General Statutes 9-169 provides in relevant part:
The legislative body of any town, consolidated town and city or consolidated town and borough may divide and, from time to time, redivide such municipality into voting districts The provisions of this section shall prevail over any contrary provision of any charter or special act. CT Page 8413-ah
Connecticut General Statutes section 9-169b provides:
Notwithstanding the provisions of sections 9-168b and 9-169, any change or changes in voting districts made in any municipality in accordance with the provisions of section 9-169, to conform, or facilitate conforming, to any plan of districting for the General Assembly or for the congressional districts, adopted by the General Assembly or determined by any reapportionment commission, appointed in accordance with the provisions of article 26 of the amendments to the Constitution of Connecticut, or ordered by a court of competent jurisdiction, or to conform, or facilitate conforming, to any order entered by a court of competent jurisdiction relating to a plan of districting for the General Assembly or for the congressional districts, adopted by the legislative body of the municipality shall be deemed effective as of the date of adoption, except as provided in section 9-169e.
Connecticut General Statutes section 9-169f provides:
Not later than June first in the year after the first regular General Assembly election following a reapportionment of the General Assembly, each municipal legislative body whose members are elected wholly or partially on the basis of a geographical division of the municipality shall adopt a reapportionment plan for such legislative body.
Any such municipal reapportionment plan (1) shall be based on population data for the municipality from the most recent decennial census of the United States and (2) may provide for geographical divisions which use the same borders as General Assembly districts in the municipality.
Initially this court notes that the petitioners have confused the initiative procedure with the referendum process. Although the matters are related, there are critical differences. These were set forth in the Morris decision wherein the court noted:
The initiative and referendum are recognized as instruments of democratic government, widely used and of great value. 5 McQuillin, Municipal Corporations (3d Ed.) § 16.48. An "initiative," as applied to municipalities, is "the power reserved to the people of a municipality residing therein to propose laws or ordinances . . ." Ballentine's Law Dictionary (3d Ed.) . . . A "referendum" is "[t]he power of the residents of a municipality to approve or reject at the polls any act of the municipal legislative body." Ballentine's Law Dictionary (3d Ed.) . . . The word "referendum," however, has a popular definition broader in scope which also includes in the term initiative action, viz., `[t]he determination of questions as to certain existing or proposed legislation by reference to a vote of the people . . ." Ballentine's Law Dictionary (3d Ed.).
Morris, 36 Conn. Sup. at 82.
In the present case, the plaintiffs seek an initiative, not a referendum. Generally, the people may, by initiative, enact laws on matters upon which the legislative body has not acted, and may amend or CT Page 8413-af even repeal laws already enacted. 42 Am.Jur.2d, Initiative and Referendum, § 9. Morris, 36 Conn. Sup. at 84. Here the plaintiffs seek to nullify a valid ordinance. Regardless of the phraseology used in their petitions, they were required to comply with the dictates of Sections 8.1.3 through 8.2.2 of the town charter. There is no evidence that these requisites have been met.
Even if the plaintiffs could establish that theirs was a referendum rather than an initiative petition, their requests for temporary relief must fail. They have not established that they have met the time requirements of the various state and local enactments. Initially this court notes that the plaintiffs did not secure the required number of signatures for a referendum until June 24, 2003. Section 8.3.2 of the town charter requires that a proper petition be filed within thirty days of the challenged ordinance. The plaintiffs failed to provide any evidence concerning why this prerequisite should be ignored.
Furthermore, the plaintiffs ignored the fact that the local and state election laws limit the ability of local citizens to realign their voting districts. Explicit time limitations are established in both. Despite their Herculean efforts to secure a proper petition, the plaintiffs failed to produce evidence that they have met mandatory time constraints.
Finally even if the plaintiffs' complaint fell under the referendum provisions, the writ of mandamus would be inappropriate at this time. Mandamus is an extraordinary remedy and will ordinarily not be granted where the enforcement of a right will be of no substantial or practical benefit to the plaintiffs. Although the plaintiffs alleged that the temporary writ is necessary to guarantee that Stratford voters do not suffer from disenfranchisement, at oral argument counsel admitted that this claim is without merit.
For the above reasons, plaintiff's application for a temporary writ of mandamus is denied.
DEWEY, J.