Opinion
No. UWY C0V06 4011301 S
April 30, 2007
MEMORANDUM OF DECISION
I SEQUENCE OF EVENTS
On September 7, 2006, the plaintiff, Cicero B. Booker, Jr., filed a two-count verified complaint against the defendants, Michael Jarjura, Lisa Mason, Nancy Carmody, Vincent Russo, Giovanni Perugini and Jose Diaz. Count one is an action for quo warranto pursuant to General Statutes § 52-491, and count two is an action for mandamus. Following a hearing held on December 5, 2006, the court finds the following facts.
General Statutes § 52-491 provides: "When any person or corporation usurps the exercise of any office, franchise or jurisdiction, the Superior Court may proceed, on a complaint in the nature of a quo warranto, to punish such person or corporation for such usurpation, according to the course of the common law and may proceed therein and render judgment according to the course of the common law."
On December 1, 2005, Jarjura, a Democrat, was sworn into office for a two-year term as mayor of the city of Waterbury, having been elected mayor in November 2005. Also during November 2005, an election was held to determine who would comprise the fifteen members of the Waterbury board of aldermen. The terms of the members of the board of aldermen were to commence on December 1, 2005. As a result of this election, nine Democrats were elected to a two-year term to the board of alderman, thereby comprising a majority of that board. As a result of this same election, six people who were not majority party members were also elected to the board of aldermen, thereby comprising the minority members of that board. As of December 6, 2006, and at all relevant times to the complaint, the board of aldermen consisted of nine Democrats, four members of the Independent party and two Republicans. On December 1, 2005, the plaintiff, a member of the Independent party, who was elected to the board of aldermen, was sworn into a two-year term of office. The Waterbury charter provides for a minority leader to be elected from among the board of aldermen members, and on December 1, 2005, the plaintiff was unanimously elected to the minority leader position.
Pursuant to the Waterbury charter, the mayor is to make appointments of Waterbury electors to boards and commissions, subject to approval by the board of aldermen. If the board of aldermen wishes to reject an appointment by the mayor, it has to do so within thirty days of the mayor's submission. At all relevant times, chapter 4, § 4-2(b)(1) of the Waterbury charter has provided that "[n]otwithstanding any other provision of the Charter of the City, the Mayor of said City shall make no appointment of a minority party member of any board for which provision is made in said Charter to be filled by appointment by the Mayor except from a list of those eligible for appointment submitted by said minority leader of the Board of Aldermen. The Mayor shall notify said minority leader of the time or dates for the making of all appointments of such minority members, and the minority leader shall thereupon and prior to the time for making such appointments, submit to the Mayor a list of those whom he shall select as eligible for such appointments which shall be made up of not less than twice the number to be appointed. No minority member of any such board shall be eligible to act as such unless his name shall be one of those listed by such minority leader in accordance with the provisions hereof." (Emphasis added.)
Chapter 4, § 4-2 of the Waterbury charter provides in relevant part: "It shall further be the duty of the Mayor . . .
(b) to fill by appointment vacancies in offices, including, but not limited to, department heads (as set forth in this Charter or Ordinances), boards and commissions in all cases in which the power of appointment is vested in the Mayor, unless otherwise specifically set forth in this Charter . . ."
Chapter 3, § 3A-2 of the Waterbury charter provides in relevant part: "The Board of Aldermen shall have the following powers . . ."
(e) to reject, by an affirmative vote of ten (10) members, within thirty (30) days of submission, all appointments made by the Mayor pertaining to department heads and other appointive positions, boards and commissions required by this Charter or Ordinances and to advise and consent, by an affirmative vote of a majority of its members, the appointees to the Finance and Audit Review Commission, as set forth in this Charter . . ."
See § 3A-2(e) which states that the board of aldermen has to affirmatively approve the appointees to the finance and audit review commission.
On or about January 30, 2006, the plaintiff submitted to Jarjura "a six (6) page list of individuals believed to be eligible for appointment to Boards and Commissions and willing to serve as required." Joint stipulation of facts dated December 6, 2006, ¶ 6. On or about February 24, 2006, Jarjura submitted to the board of aldermen the names of people who were to be appointed to city boards and commissions, including those who were to serve as minority members. Jarjura's list included people who were to be appointed to boards and commissions as minority members who were not among the people whom the plaintiff had recommended for appointment to a particular board or commission. Jarjura proposed to appoint the following individuals to minority positions on certain boards or commissions despite these individuals not being recommended by the plaintiff for appointment to their respective boards and commissions: Mason, a Republican, to the city plan commission; Carmody, a Republican, to the civil service commission; Russo, a Republican, to the finance and audit review commission; Perugini, a Republican, to the board of fire commissioners; and Diaz, a Republican, to the board of commissioners of public health. Following Jarjura's submission of his list to the board of aldermen, the board did not take any action to reject any of his recommendations. Therefore, on or about March 26, 2006, all of the candidates whom Jarjura recommended became eligible to be appointed to their respective boards and commissions. The mayor then appointed Mason, Carmody, Russo, Perugini and Diaz to their respective boards and commissions.
In count one of the verified complaint, the plaintiff alleges that since their appointments to their respective boards and commissions, Mason, Carmody, Russo, Perugini and Diaz "have each exercised the rights, powers and privileges [of their respective offices] unlawfully and to the exclusion of persons whose names appear on the plaintiff minority leader's list dated January 30, 2006." The plaintiff further alleges that as the defendant board and commission members were not properly appointed to their respective positions, they lack both the right to their offices and the right "to exercise rights, powers and privileges" connected with their offices. In addition, the plaintiff alleges that none of the defendant board and commission members is eligible to act as a member of the board or commission to which Jarjura appointed him or her because the defendant board and commission members each occupy "a minority seat on a board or commission without having been recommended for appointment to that seat by the plaintiff." As to the first count, the plaintiff prays that the defendant board and commission members "each be required to answer to this court by what warrant he or she claims to hold the office or exercise the rights, powers and privilege of membership on the City of Waterbury Board or Commission on which he or she now purports to serve." With respect to count one, the plaintiff further prays that if a defendant board or commission member cannot demonstrate his or her entitlement to occupy the position that he or she holds on a board or commission, then that defendant board or commission member should be ousted from his or her office. With regard to the first count, the plaintiff is also seeking to recover costs.
In this memorandum of decision, when referring to these defendants collectively, they will be referred to as the defendant board and commission members.
In count two, the plaintiff alleges that Jarjura willfully and intentionally disregarded Waterbury's charter and Supreme Court case law when he made appointments to minority seats. The plaintiff further alleges that it is reasonably probable that Jarjura will continue to violate the Waterbury charter in the course of making appointments to boards and commissions. In addition, the plaintiff alleges that he has a legal right to performance by Jarjura to appoint people to minority positions on boards or commissions only if they appear on the list submitted by the minority leader as designated for such positions. Also, the plaintiff alleges that he lacks an adequate remedy at law to compel Jarjura to fulfill his mayoral duties that are set forth in the Waterbury charter. With regard to count two, the plaintiff is seeking both a temporary and permanent injunction requiring Jarjura, as Waterbury mayor, pursuant to § 4-2(b), to make appointments to minority positions on boards and commissions only from among those people named on a list submitted by the minority leader of the board of aldermen.
The case that the plaintiff cites to is State ex rel. Giusti v. Barbino, 170 Conn. 113, 365 A.2d 408 (1976), a case that concerned interpretation of the Waterbury charter.
On November 17, 2006, all of the defendants filed an answer and special defense. In their special defense, the defendants allege that Jarjura has complied fully with the Waterbury charter as it concerns the appointments of the defendant board and commission members. The defendants further allege that the charter provisions upon which the plaintiff relies do not require the actions that the plaintiff claims are required, and to the extent that the charter provisions could be interpreted to require the actions that the plaintiff claims are required, these provisions "are unconstitutionally vague."
II PROCEDURAL BACKGROUND
Following the filing of the complaint on September 7, 2006, and the answer and special defense on November 17, 2006, on November 22, 2006, all of the defendants filed a memorandum in opposition to the application for quo warranto and mandamus. Also on November 22, 2006, the plaintiff filed a reply to the defendants' special defense, denying this special defense. In addition, on November 22, 2006, the plaintiff filed a memorandum in support of his application for quo warranto and mandamus. The plaintiff filed a reply memorandum of law dated December 4, 2006, with the court. A hearing was held before the court on December 5, 2006. The earlier-mentioned December 6, 2006 joint stipulation of facts was also filed with the court. On December 15, 2006, all of the defendants filed a posttrial memorandum of law in further opposition to the plaintiff's application for quo warranto and mandamus. The plaintiff filed a posttrial memorandum of law on December 28, 2006. Following the hearing, the court asked the parties to submit responses to two hypothetical scenarios, and the last of those responses was dated January 31, 2007.
While the plaintiff states that he is denying Jarjura's special defense, this special defense was alleged by all of' the defendants.
III QUO WARRANTO
"Actions in quo warranto are governed by General Statutes § 52-491." New Haven Firebird Society v. Board of Fire Commissioners, 219 Conn. 432, 436, 593 A.2d 1383 (1991). Quo warranto is used to test the defendant's legal right to hold public office. Dumais v. Underwood, 47 Conn.App. 783, 788, 707 A.2d 333, cert. denied, 244 Conn. 918, 714 A.2d 4 (1998). "A successful quo warranto action unseats an illegal office holder and declares the position vacant. It does not place the rightful claimant into the office. If the claimant can thereafter establish his clear right to the position, he may bring an action in mandamus to seek his own appointment." New Haven Firebird Society v. Board of Fire Commissioners, supra, 436. "A quo warranto proceeding under the common law lies only to test the defendant's right to hold office de jure . . . It is well established that in quo warranto proceedings the burden is upon the defendant to show a complete title to the office in dispute." (Internal quotation marks omitted.) Demarest v. Fire Dept., 76 Conn.App. 24, 29, 817 A.2d 1285 (2003). "Thus, because the burden of proof in quo warranto actions is on the defendant, the trial court must find that the defendant met this burden by a preponderance of the evidence in order to find for the defendant." Deguzis v. Jandreau, 27 Conn.App. 421, 424, 606 A.2d 52 (1992). "`The parties defendant or respondent in quo warranto proceedings are those charged with exercising the particular office or franchise without lawful right. Stated otherwise, a writ of quo warranto must be directed toward the objectionable person holding an office and exercising its functions in his or her individual capacity.' 65 Am. Jur. 2d, Quo Warranto § 93(2001); see also Johnson v. Manhattan Railway Co., 289 U.S. 479, 502, 53 S.Ct. 721, 77 L.Ed. 1331 (1933) (quo warranto proceeding `must be brought against the person who is charged with exercising an office or authority without lawful right.'); Blackburn v. O'Brien, 289 F.Sup. 289, 293 (W.D. Va. 1968)." Demarest v. Fire Dept. supra, 29.
MANDAMUS
"A writ of mandamus is an extraordinary remedy, available in limited circumstances for limited purposes . . . [The court's 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." (Internal quotation marks omitted.) Jalowiec Realty Associates, L.P. v. Planning Zoning Commission, 278 Conn. 408, 412, 898 A.2d 157 (2006). "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." (Internal quotation marks omitted.) AvalonBay Communities, Inc. v. Sewer Commission, 270 Conn. 409, 417, 853 A.2d 497 (2004).
IV DISCUSSION Arguments of Parties
The defendants argue that pursuant to the Waterbury charter, the mayor is constrained by the minority leader's list only if he wishes to appoint someone to a board or commission who belongs to the same political party as the minority leader. The defendants assert that in the present case, none of the defendant board and commission members belong to the same political party as the plaintiff. Meanwhile, the plaintiff's position is that in making minority appointments to boards and, commissions, the mayor may only appoint people on the minority leader's list and only people on the minority leader's list are eligible to serve on the boards and commissions as minority members.In support of their interpretation of § 4-2(b)(1) that the term "minority party members" refers exclusively to individuals belonging to the minority leader's political party, the defendants turn the court's attention to chapter 3, § 3B-1(a)(1) of the Waterbury charter, which provides in relevant part: "The majority members of said Board shall elect a majority leader . . ." The defendants also quote language from chapter 3, § 3B-1(a)(2) of the Waterbury charter, which provides in relevant part: "The minority members of said Board shall elect a minority leader . . ." The defendants maintain that the charter, at no time, defines what a "majority" or "minority" member is. The defendants also assert that the charter "speaks in terms of simple majorities and minorities"; defendants' memorandum in opposition to application for quo warranto and mandamus dated November 22, 2006, p. 3; and that the charter "does not limit itself to majority or minority parties." (Emphasis in original.) Id. According to the defendants, as per § 3B-1(a)(2), the Republican and Independent members of the board of aldermen acted as minority members of the board in electing the plaintiff to the minority leader position, an event that could not have occurred had § 3B-1(a)(2) referred to "minority party members."
According to the defendants, the word "party" was added to § 4-2(b)(1) as a result of the 2002 charter revision so that § 4-2(b)(1) provides in relevant part: "[T]he Mayor of said City shall make no appointment of a minority party member of any board . . ." (Emphasis added.) The defendants maintain that if a provision's language is unambiguous, a court may not arbitrarily add to or subtract from the words utilized. The defendants contend that the lack of the word "minority party member" anywhere else in the charter is significant when read in conjunction with § 4-2(b)(1). The defendants further argue that at a minimum, the lack of the word "party" in the charter provision discussing the majority and minority of the board of aldermen distinguishes that charter provision from § 4-2(b)(1). The defendants maintain that as "the legislature is always presumed to have created a harmonious body of law . . . a court must read together portions of a town charter that relate to the same subject matter." (Citation omitted; internal quotation marks omitted.) Defendant's posttrial memorandum of law in further opposition to plaintiff's application for quo warranto and mandamus dated December 15, 2006, p. 3.
In addition, the defendants argue that their interpretation of § 4-2(b)(1) is plain and unambiguous, which means that the charter provision should be read alone and the court should not examine extratextual sources. The defendants assert that the plaintiff's position is that a "minority party member" is anyone who does not belong to the political party that holds the majority of seats on the board of aldermen. The defendants assert that if the court is to interpret § 4-2(b)(1) as the plaintiff does, then that would lead to unworkable results. Also, the defendants argue that if the court does not adopt the defendants' interpretation of § 4-2(b)(1), then that provision is unconstitutionally vague and should therefore be void. According to the defendants, the plaintiff's interpretation of' § 4-2(b)(1) is certainly not plain and unambiguous as it conflicts with the interpretation advanced by Laura Nesta, the previous minority leader, in Nesta v. Schaeffer, Superior Court, judicial district of Waterbury, Docket No. CV 04 4001527 [ 38 Conn. L. Rptr. 878]. The defendants assert that in Nesta, Nesta defined "minority party member" with regard to the composition of the board or commission at issue.
The defendants discuss several alternative definitions of the terms "majority" and "minority" and argue that those interpretations lead to unworkable results. One such interpretation that the defendants urge the court to reject is utilizing the political party affiliation of the members of a board or commission at issue to determine who the minority members are and who the majority members are. The defendants argue that this interpretation is unworkable because there is no requirement that either boards or commissions have "majority representation." The defendants argue that minority representation of commissions or boards is governed by chapter 6, § 6A-8 of the Waterbury charter and General Statutes § 9-167a. The defendants assert that neither § 6A-8 nor § 9-167a provides a definition of either majority or minority. According to the defendants, § 6A-8 and § 9-167a merely mean that a single political party is not to be overly represented on a particular board or commission. The defendants contend that the mayor is neither required to appoint people belonging to his own political party to boards or commissions nor is he required to appoint anyone belonging to the majority political party of the board of aldermen. The defendants maintain that adopting the plaintiff's position would result in the minority leader having more power than the mayor with regard to board and commission appointments.
§ 6A-8 provides: "In creating said appointed boards and commissions, the Board of Aldermen shall include minority party representation provisions pertaining to the party enrollment of the members or alternates of the same. Said provisions shall exceed the minimum standard set forth in the General Statutes. Moreover, said party enrollment shall be determined in the same manner as the General Statutes delineate entitlement to participation in party caucuses and primaries by electors who transfer from the enrollment list of one party to another."
§ 9-167a(a)(1) provides: "Except as provided in subdivision (2) of this subsection, the maximum number of members of any board, commission, legislative body, committee or similar body of the state or any political subdivision thereof, whether elective or appointive, who may be members of the same political party, shall be as specified in the following table:
One example that the defendants cite in support of this argument is chapter 6, § 6B-4(e) of the Waterbury charter, which provides for the composition of the civil service commission. § 6B-4(e) provides in relevant part: "Said Commission shall consist of five (5) electors of the City appointed by the Mayor, subject to the right of rejection by the Board of Aldermen as set forth in this Charter . . .
(1) Notwithstanding the provisions of this Charter, no more than two (2) members of the Commission shall be members of the same political party." The defendants argue that if the court were to adopt the plaintiffs' position, and Jarjura appointed two Democrats to the civil service commission, the plaintiff would get to control who the remaining three appointments would be.
The plaintiff argues that the mayor is permitted to make minority appointments only from among the list of individuals submitted by the minority leader. The plaintiff cites to State ex rel Giusti v. Barbino, supra, 170 Conn. 113, in support of his argument. According to the plaintiff, State ex rel Giusti v. Barbino, supra, 113, stands for the propositions that the mayor is permitted to appoint someone to a minority appointment only if his or her name appears on the minority leader's list, and "also that any appointment the Mayor makes must be to the board or commission designated by the minority leader." Plaintiff's memorandum in support of application for quo warranto and mandamus dated November 22, 2006, pp. 4-5. In support of his argument that the defendant board and commission members are ineligible to act as minority members on their respective boards or commissions, the plaintiff quotes the following language in § 4-2(b)(1): "No minority member of any such board shall be eligible to act as such unless his name shall be one of these listed by such minority leader in accordance with the provisions hereof." The plaintiff asserts that nothing in § 4-2(b)(1) limits the minority leader to people belonging to his own political party when making recommendations for appointments to boards and commissions. According to the plaintiff, the crux of this action is not about the limitations upon the mayor's power of appointment, but is whether the defendant board and commission members are eligible to serve on their respective boards and commissions.
The plaintiff further argues that § 4-2(b) is clear, and applying this provision demonstrates that the defendant board and commission members are ineligible to hold their respective offices. In the plaintiff's posttrial memorandum of law dated December 28, 2006, p. 4, the plaintiff quotes the following language from State v. Muolo, 119 Conn. 323, 330, 176 A. 401 (1935): "[The court] cannot impute to the Legislature an intent to pass an unconstitutional statute and a law should be construed, if it can reasonably be done, so as to make it valid." The plaintiff maintains that as the charter fails to define the terms "majority party member" or "minority party member," the court is to apply General Statutes § 1-1(a), which provides in relevant part: "In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language . . ." The plaintiff contends that to find the commonly approved usage of a particular word, the court should turn to the dictionary definition of that word. According to the plaintiff, the Living Webster Encyclopedia Dictionary of the English Language defines minority as "less than half of the whole . . . a smaller party or group opposed to a majority, as in voting or other action." (Internal quotation marks omitted.) Plaintiff's posttrial memorandum of law dated December 28, 2006, p. 5. Therefore, the plaintiff argues that based on the composition of the board of aldermen following the 2005 election, the members of the Republican and Independent parties constitute the minority party. The plaintiff asserts that as the defendant board and commission members are Republicans and are not on the minority leader's list, the mayor's appointment of them went beyond the § 4-2(b)(1) limitation on the mayor's authority.
The plaintiff argues that the first and last sentences of § 4-2(b)(1) should be read together as the last sentence puts an additional limitation on the mayor's power of appointment. According to the plaintiff, while the first sentence of § 4-2(b)(1) forbids the mayor from making appointments of minority party members not on the minority leader's list, the last sentence of § 4-2(b)(1) precludes anyone from serving as a minority member of a board or commission unless his or her name appeared on the minority leader's list. It is also the plaintiff's position nothing in its interpretation of § 4-2(b) "suggests that the Mayor is not authorized to select people who are not members of the majority party to fill majority seats." Plaintiff's posttrial memorandum of law dated December 28, 2006, p. 7.
V APPLICATION OF LAW
First, this court will turn to applicable principles of charter construction. "As with any issue of statutory construction, the interpretation of a charter or municipal ordinance presents a question of law . . ." (Internal quotation marks omitted.) Kelly v. New Haven, 275 Conn. 580, 607, 881 A.2d 978 (2005). "In construing a city charter, the rules of statutory construction generally apply . . . In arriving at the intention of the framers of the charter the whole and every part of the instrument must be taken and compared together. In other words, effect should be given, if possible, to every section, paragraph, sentence, clause and word in the instrument and related laws." (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 161, 851 A.2d 1113 (2004).
"When construing a statute, [o]ur 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 interpretative 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 . . ." (Internal quotation marks omitted.) Pasquariello v. Stop Shop Cos., 281 Conn. 656, 663-64, 916 A.2d 803 (2007).
While the defendants urge the court to simply examine § 4-2(b)(1) in relation to the rest of the charter, the court finds that § 4-2(b)(1) is unclear and ambiguous; therefore, an examination of the intent of the 2002 charter revision commission in inserting the word "party" into § 4-2(b)(1) is necessary. A review of a transcript excerpt of the charter revision commission public hearing — questions and answers that occurred on June 19, 2002, reveals the intent of the charter revision commission when adding the word "party" to § 4-2(b)(1). Issues that were encountered in the past regarding the mayor's power to appoint minority members to boards and commissions were discussed.
"LAWRENCE DePILLO: Page 2 — Appointment of Minority Members of the Board and again I spoke to the fact that there are many abuses here by Mayors in the past. What's not specified here is whether it's of the Mayor's same party or not or Green Party or Concerned Citizens or Unaffiliated — that a Mayor only gets the opportunity to appoint three of five members of a Board or four of seven members of the Board because the way that has been used in the past I believe is that Mayors have appointed Unaffiliated voters and then said that they do not have the full compliment of party members on a Board and then go ahead and point — appoint those members as well and can and in the past have actually appointed, more than four of seven members of a Board or more than three members . . ."
"[CHAIRMAN PAUL] PERNEREWSKI [JR.]: The State Law is drafted — it's — we all refer to this as Minority representation which is the shorthand for it but the way the Law is drafted, it limits the number of members who can serve from any one party. So if the Mayor, if you had a seven member Board and the Mayor were to appoint three Independents, he could never appoint more than four Democrats. A seven member Board could never have more than four of one party."
"DePILLO: And then he appoints seven people, where's the Minority — where's the Minority Leader get to appoint anybody?"
"ALDERMAN LAURIE SINGER RUSSO: Mayor Giordano did that on the Finance Board."
"ATTORNEY DENNIS BUCKLEY: Just to make sure that it's understood, what occurred in this particular matter — take the Chair's example of a total membership of seven, which typically would be split 4-3, 4 for the absolute cap on the Majority — 3 being everything other than the Majority. On a prior instance what a Republican Mayor chose to do was to make an appointment of an Unaffiliated voter and then appoint what would be the functional equivalent in this example of four Republicans."
"SINGER RUSSO: Right."
"BUCKLEY: The Mayor had now appointed five members of a summit member commission — reducing, he was argued, the Minority Leader's right to designate three persons down to two. Unlike an earlier question that was poised by member of the public where perhaps an action for mandamus conceptionally could and should have been brought — someone did not make the determination for whatever reason that they would pursue a legal course of action to remedy that circumstance. But that's the motivation for the question."
"DePILLO: Right." Immediately after this exchange occurred, a solution was proposed so that the mayor would not usurp the minority leader's power with regard to appointments to boards and commissions.
"ATTORNEY STEPHEN MEDNICK: Yeah and I — again this is a question — this was not modified by the Commission and it's perfectly appropriate to raise these issues before the Board of Aldermen. One thing I would do that we didn't do because we really didn't focus on this section is I make clear that its Minority Party members on Boards as opposed to Minority Members of Boards — using the current language is Minority Members — we talking about parties here."
"DePILLO: Yes."
"MEDNICK: And it's actually the whole thing is a misnomer — I spent a lot of time this year not only in this town but in other cities looking at the Minority representation provisions of law. It's an absolute misnomer. If the Minority representation provisions are caps on the Majority Party representation and not an insurance — a guarantee of Minority Party representation — it's a cap which in effect guarantees Minorities." After reviewing what occurred at this hearing, the court finds that the charter revision committee inserted the word "party" in § 4-2(b)(1) in order to prevent the mayor from minimizing the minority leader's appointment power by appointing the maximum number of people from the mayor's own political party and then appointing additional people belonging to a different political party from the party of the minority leader so as to circumvent the minority leader's list and effectively increase the mayor's control over appointments. The charter revision committee did not insert the word "party" into § 4-2(b)(1) in order to limit the minority leader to recommending individuals belonging to his or her own political party as the defendants argue.
After an examination of what occurred at the June 19, 2002 meeting, the court finds that that the meaning of the term "minority party members," as stated in § 4-2(b)(1), refers to the nonmajority political parties represented on the board of aldermen. In the present case, only Republicans and Independents are "minority party members." The court also finds that pursuant to § 4-2(b)(1), when making minority appointments to boards and commissions, the mayor is confined to appointing people who appear on the minority leader's list as "minority party members." Should the mayor attempt to make a minority appointment of a member of the "minority party" and that person does not appear as designated for such appointment on the minority's list, then that person will not be eligible to serve as per the last sentence of § 4-2(b)(1), which prohibits minority members of boards or commissions from serving unless they appear on the minority leader's list. In addition, should the mayor attempt to make a minority appointment of an individual not belonging to the "minority party," as defined by the court, then that person will be ineligible to serve regardless of whether that name appears on the minority leader's list.
The court also rejects the defendants' argument that the plaintiff's interpretation of § 4-2(b)(1) is unconstitutional due to vagueness. "[The court] proceed[s] from the well recognized jurisprudential principle that [t]he party attacking a validly enacted statute . . . bears the heavy burden of proving its unconstitutionality beyond a reasonable doubt and we indulge in every presumption in favor of the statute's constitutionality . . ." (Internal quotation marks omitted.) Kelo v. New London, 268 Conn. 1, 29, 843 A.2d 500 (2004). "Furthermore, [a] statute is not unconstitutional merely because a person must inquire further as to the precise reach of its prohibitions . . . [N]or is it necessary that a statute list the exact conduct prohibited." (Citation omitted; internal quotation marks omitted.) State v. Sorabella, 277 Conn. 155, 192, 891 A.2d 897 (2006), cert. denied, 127 S.Ct. 131, 166 L.Ed.2d 36 (2007). "If the meaning of a statute can be fairly ascertained a statute will not be void for vagueness since [m]any statutes will have some inherent vagueness, for [i]n most English words and phrases there lurk uncertainties . . . References to judicial opinions involving the statute, the common law, legal dictionaries, or treatises may be necessary to ascertain a statute's meaning to determine if it gives fair warning . . ." (Internal quotation marks omitted.) Id., 191-92. "This court must also look to see whether a person . . . would reasonably know what acts are permitted or prohibited by the use of . . . ordinary understanding." State v. Sanseverino, 98 Conn.App. 198, 209, 907 A.2d 1248, cert. granted on other grounds, 280 Conn. 945, 912 A.2d 481, cert. granted on other grounds, 280 Conn. 946, 912 A.2d 481 (2006).
"To demonstrate that [a statute] is unconstitutionally vague as applied to [a defendant], the [defendant] therefore must . . . demonstrate beyond a reasonable doubt that [he] had inadequate notice of what was prohibited or that [he was] the victim of arbitrary and discriminatory enforcement . . . [T]he void for vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute . . . and the guarantee against standardless law enforcement . . ." (Internal quotation marks omitted.) State v. Scruggs, 279 Conn. 698, 709-10, 905 A.2d 24 (2006).
"The general rule is that the constitutionality of a statutory provision being attacked as void for vagueness is determined by the statute's applicability to the particular facts at issue . . . To do otherwise, absent the appearance that the statute in question intrudes upon fundamental guarantees, particularly first amendment freedoms, would be to put courts in the undesirable position of considering every conceivable situation which might possibly arise in the application of [the statute] . . . Thus, outside the context of the first amendment, in order to challenge successfully the facial validity of a statute, a party is required to demonstrate as a threshold matter that the statute may not be applied constitutionally to the facts of [the] case." (Citation omitted; internal quotation marks omitted.) State v. Sorabella, supra, 277 Conn. 192. Furthermore, "`[the court] cannot impute to the Legislature an intent to pass an unconstitutional statute and a law should be construed, if it can reasonably be done, so as to make it valid.' State v. Muolo, [ supra, 119 Conn. 330]." Seals v. Hickey, 186 Conn. 337, 358, 441 A.2d 604 (1982).
With regard to the defendants' concern about the civil service commission and the minority leader having the power to appoint more members than the mayor has the power to appoint, the court finds that § 4-2(b)(1) does not apply to that commission as no one political party can hold the majority of seats on that commission as no more than two out of five members may be from the same political party. The court also finds that § 4-2(b)(1) is inapplicable to the finance and audit review commission as pursuant to chapter 6, § 6B-1(b) of the Waterbury charter, the finance and audit review commission is made up of seven electors and as per § 6B-1(b)(2), no more than three members of the commission may be from the same political party.
VI CONCLUSION
Therefore, it is the judgment of the court that Lisa Mason, Giovanni Perugini and Jose Diaz fail to meet the requirements to serve on their respective boards because they are members of the "minority party" as defined by this court and they do not appear on the plaintiff's list as recommended for the positions for which they were appointed. Accordingly, Mason, Perugini and Diaz are ousted from their respective boards and commissions. It is also the judgment of the court that Nancy Carmody and Vincent Russo do meet the requirements to serve on their respective commissions as the court finds that § 4-2(b)(1) does not apply to the commissions on which they serve as no one political party can hold the majority of seats on those commissions. No costs will be awarded to any party in this action. The writ of mandamus is granted, and with regard to boards and commission that can have majority representation, and therefore, fall under the purview of § 4-2(b)(1) the defendant, Michael J. Jarjura, is directed to appoint people to be minority members of these boards and commissions only if they are members of the "minority party" as defined by the court and on the minority leader's list as recommended for appointment for that particular board or commission.
COLUMN I COLUMN II Total Membership Maximum from One Party 3 2 4 3 5 4 6 4 7 5 8 5 9 6 More than 9 Two-thirds of total membership.