Opinion
No. CV04 041 00 51 S
March 24, 2004
MEMORANDUM OF DECISION
Before the court is a motion to dismiss for lack of subject matter jurisdiction, challenging the ability of the plaintiffs to maintain this action.
On February 25, 2004 the plaintiff, Citizens for a Responsible Government, filed an application for temporary and permanent injunction. The application alleged that the plaintiff is a non-profit corporation consisting of taxpayers in the defendant town who are "committed to concerns of fair taxes, wise spending, meaningful elections, and responsible government . . ." (Substituted Application, paragraph 1.)
The origin of this complaint is the defendant's attempt to construct a new elementary school. As alleged in the complaint, on February 17, 2004 the defendant held a special town meeting regarding whether to appropriate $29,149,168.00 for a new elementary school. Also on the agenda was the question of whether the voters would authorize bonds to defray that appropriation. As a result of that town meeting, the defendant conducted a referendum on February 25, 2004. At that referendum, a majority of the defendant town's voters approved the proposed construction and appropriation. That meeting was "properly noticed." (Stipulation of Facts paragraph 1, 3.)
The plaintiff's application for injunctive relief alleged that "the Town addressed the issue of the anticipated tax impact resulting from the proposed appropriation and building project." (Substituted Application, paragraph 4.) The plaintiff charged that "the cost presented was incomplete insofar as it did not account for goods and services, most significantly a water line." (Substituted Application, paragraph 6.) The plaintiff further contended "the plaintiff, through its agents, servants and employees, demanded that the Town produce data reflecting the additional tax burden that would result from the costs of goods and services essential to the operation of the school. In response to that demand, Tom Partridge, Chairman of the Board of Finance for the [defendant], stated that those costs were merely speculative and, therefore, the additional tax burden resulting from them could not be determined." (Substituted Application, paragraph 11.)
The application alleged that the defendant presented "incomplete, inadequate and flawed" data and therefore deprived the plaintiff of a "reasonable and meaningful discussion." (Substitute Application, paragraphs 13, 14.) The plaintiff further alleged that the defendant failed to conduct the town meeting in accordance with standard parliamentary procedure in violation of Connecticut General Statutes 7-7, 7-570. (Substitute Application, paragraph 15, 16.) The plaintiff also contended that it did not receive fair notice of the subsequent referendum. (Substitute Application, paragraph 16.) Finally the plaintiff alleged that it was deprived of its right to due process when the defendant "failed to hold a meaningful town meeting;" "failed to present to the plaintiff's true, accurate and reliable data;" and "failed to provide the plaintiffs with information sufficient to enable them to make a knowing, informed and intelligent vote at referendum." (Substitute Application, paragraphs 19.)
The defendant town held a town wide machine ballot on February 25, 2004. The voters approved the appropriation with 1,624 votes in favor and 617 opposed. (Stipulation of Facts, paragraph 5.)
I. Procedural History
By way of relief, the plaintiff requests that this court issue an order "to command and enjoin the defendant to wholly desist and refrain from taking any action to implement the results of the February 25, 2004 referendum . . ."
The plaintiff filed its original application for temporary relief on 3:58 p.m. February 25, 2004. Rather than enjoin the referendum set for that same evening, the court ordered a hearing for March 8, 2004. Thereafter the plaintiff filed a substituted application.
At the initial March 8, 2004 hearing, the court heard preliminary arguments concerning the motion to dismiss. Additionally, the defendant presented evidence from the town treasurer and first selectman. As a result of long-range planning and the ultimate referendum vote, the town was prepared to submit proposals for the construction bonds that the voters had authorized. If the bond sales proceeded expeditiously, the town would benefit from favorable economic conditions. Any delay would result in increased costs. Additionally, if the project were delayed the town could lose, at a minimum, $7,000,000, the amount that the State of Connecticut had agreed to pay as reimbursement for the proposal presented at the special town meeting.
II. Motion to Dismiss
The matter began as a claim for a temporary injunction. To obtain a temporary injunction plaintiff must show that protected interests are at stake. "It must establish that it will prevail subsequently to a final hearing on its application for a permanent injunction . . . To obtain injunctive relief plaintiff bears the burden of proving facts which will establish irreparable harm . . . Plaintiff must also show the lack of an adequate remedy at law . . . If the plaintiffs have an adequate remedy at law, then they are not entitled to the injunction. Meriden Concerned Citizens v. Meriden, No. CV 03 0284428, Superior Court, Judicial District of New Haven at Meriden (November 3, 2003, Graham, J.).
In response to this request for extraordinary relief, the defendant town has filed an amended motion to dismiss wherein it contends that this court lacks subject matter jurisdiction. In particular, the defendant argues that the instant controversy is a non-justiciable political question.
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2002). "The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter . . ." (Internal quotation marks omitted.) Sadloski v. Manchester, 235 Conn. 637, 645-46 n. 13, 668 A.2d 1314 (1995) . . . "The plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." Fink v. Golenbock, 238 Conn. 183, 199 n. 13, 680 A.2d 1243 (1996).
Both parties agree that a controlling case in the area of political question justiciability is Nielsen v. State of Connecticut, 236 Conn. 1, 670 A.2d 1288 (1996). There the Connecticut Supreme Court outlined the principles that underlie justiciability.
Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute . . . (2) that the interests of the parties be adverse . . . (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant.
(Citations omitted; internal quotations omitted.) Nielsen v. State of Connecticut, 236 Conn. at 7.
In the present case the third and fourth requirements are squarely before this court. The issue is therefore whether any adjudication would infringe upon the authority of an equal branch of government.
Whether a controversy so directly implicates the primary authority of the legislative or executive branch, such that a court is not the proper forum for its resolution, is a determination that must be made on a case-by-case inquiry. Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for nonjusticiability on the ground of a political question's presence. CT Page 4699
(Citations omitted; internal quotations omitted.) Nielsen v. State of Connecticut, 236 Conn. at 7-8. See also Yennie v. State of Connecticut, No. CV-02-0820579S, Superior Court Judicial District of Hartford at Hartford, November 29, 2002, Berger, J.).
In the present case, a number of the factors emphasized in Nielsen lead to the conclusion that this is a nonjusticiable political question. The subjects of the referendum were matters at the core of the responsibility of local government, local construction and appropriation. The process itself was essential town government. It is not the province of the court to determine the sufficiency of information provided to an electorate. An electorate's satisfaction with its local government is a matter left to the ballot box, not the courtroom. A court should allow local initiatives to proceed unhampered absent significant due process violations.
III. Due Process Considerations
The plaintiff's primary complaint is the defendant conducted a town meeting and subsequent referendum in violation of state and local laws. In essence, the plaintiff contends that this claim invokes due process protections.
This court reviewed the video recording of the February 17, 2004 special town meeting that the plaintiff now challenges. Plaintiff concedes that there was proper notice for the meeting. The subject of the agenda was no surprise. This special meeting was called to discuss an appropriation issue that has been the subject of various town committee meetings since July 2001. The town's school building committee and board of finance both presented a summary of their respective findings concerning subject construction and appropriation. Both the building committee and the board of finance chairman described their committee's deliberative processes. Both indicated the reasons for their rejection of alternative proposals.
After lengthy presentations from these town officials, the defendant's first selectman facilitated a lengthy question and comment period. All interested parties were allowed to speak. None were precluded from presenting information to those gathered at the town meeting.
To the extent that the application states a claim for violation of plaintiff's rights to procedural due process, that claim must be dismissed. "The fundamental requirement of procedural due process is the opportunity to be heard at a meaningful time and in a meaningful manner. However, official action that is legislative in nature is not subject to the notice and hearing requirements of the due process clause. These constitutional requirements apply only where the official action is "designed to adjudicate disputed facts in particular cases." Baines v. Masiello, 02-CV-0607C(HBS) (W.D.N.Y. October 6, 2003) (internal quotation omitted; internal citations omitted).
Although procedural due process requires that the government give notice and an opportunity to be heard before depriving an individual of liberty or property it does not apply when "government makes a policy decision that has an adverse impact on an entire classification of individuals . . . even if the decision has the same adverse effect on the interests of the members of the group as would an individualized deprivation." 2 Kenneth Culp Davis Richard J. Pierce, Jr., Administrative Law Treatise § 9.2, at 3 (3d ed. 1994). This distinction between a legislative enactment and a fact-based adjudicative act was clarified in the landmark case Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441 (1915), where Justice Holmes wrote:
Where a rule of conduct applies to more than a few people it is impracticable that every one should have a direct voice in its adoption. The Constitution does not require all public acts to be done in town meeting or an assembly of the whole. General statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving them a chance to be heard.Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. at 445.
Here it is clear that the referendum was official action designed for general application to the town's population as a whole, rather than directed at the adjudication of a particular factual dispute. As such, the conduct complained of was clearly "legislative in nature" and beyond the scope of the procedural due process protection.
Plaintiff's implied substantive due process claim also fails.
The cases recognize a substantive component of the Due Process Clause that protects individual liberty against abusive government action, "regardless of the fairness of the procedures used to implement them." Daniels v. Williams, 474 U.S. 327, 331 (1986). However, the Supreme Court "has always been reluctant to expand the concept of substantive due process because guideposts for responsible decision making in this unchartered area are scarce and open-ended." Collins v. City of Marker Heights, 503 U.S. 115, 125 (1992). The due process clause "is not a guarantee against incorrect or ill-advised [government] decisions." Bishop v. Wood, 426 U.S. 341, 350 (1976).Baines v. Masiello, 02-CV-0607C(HBS) (W.D.N.Y. October 6, 2003) p. 16-17. As the Baines court explained:
A substantive due process claim based on allegedly abusive conduct by government officials therefore ordinarily requires evidence of conduct that "can properly be characterized as arbitrary, or conscience-shocking, in a constitutional sense." Collins, 503 U.S. at 128; see also Rosa R. v. Connelly, 889 F.2d 435, 439 (2d Cir. 1989) (requiring evidence that official action was "arbitrary or irrational or motivated by bad faith"), cert. denied, 496 U.S. 941 (1990). But where the government action complained of is legislative in nature, the plaintiff's substantive due process claim is subject to an even more stringent test: legislative acts are presumed valid and must be upheld if "rationally related to a legitimate state interest." City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440 (1985); Beatie v. City of New York, 123 F.3d 707, 711 (2d Cir. 997). Under this test, the court will invalidate legislative action on substantive due process grounds "only when a plaintiff can demonstrate that there is no rational relationship between the legislation and a legitimate legislative purpose." Beatie, 123 F.3d at 711 (citing Kelley v. Johnson, 425 U.S. 238, 247 (1976)).
The plaintiff's primary complaint is that it was not afforded the opportunity to be heard. It ignores the fact that there were multiple meetings during the two and one half years prior to this referendum. The plaintiff could have participated in any of these preliminary sessions. There is no case law that allows the plaintiff the right to participate in the matter suggested in the instant complaint. See, e.g., Riffin v. Roupas, 02 C 5270 (N.D.Ill., September 19, 2003) (rejecting the argument that individuals have a right to an "informed" vote).
The plaintiff cannot meet the heavy burden required to nullify this referendum. This court must presume that the referendum is related to a legitimate governmental objective. If the individual voters felt ill prepared to decide the issue presented, they could have voted against the referendum. Instead they approved the construction and appropriation by an overwhelming margin. This court will not second guess the wisdom of that decision. "Ultimately, if the people disagree with the [vote], are dissatisfied with it and disapprove of those who made it, they may register their discontent by their control over those individuals at the polls . . . (disagreement with public policy and disapproval of officials' responsiveness is to be registered principally at the polls). This is the heart of the democratic process." Breck v. Janklow, 2001 SD 28, 623 N.W. 449, 459 (2001) (plaintiff allege town manages misrepresented financial aspects of the sale of town property).
For the foregoing reasons, the Motion to Dismiss is granted.
This court recognizes that the plaintiff is passionate in its opposition to the proposed referendum. The plaintiff may certainly wish to appeal the instant decision. Nevertheless, evidence presented at the March 8, 2004 hearing clearly established that any further delay would result in prejudice to the defendant town. "[C]hallenges to bond referenda are extremely restricted. If it were otherwise, protracted litigation in courts of equity contesting bond elections might greatly delay and sometimes even defeat state, county, and municipal financing. The law affords other means of uncovering fraud in elections . . . These considerations must be examined for their impact on the [governmental body], on the operation and maintenance of orderly government, on those with whom the [government] engaged in these . . . financing transactions, and on society in general." (Quotations omitted; internal quotations omitted.) Town of Plymouth v. Melanie Church-Dlugokenski, No. CV02-0618582S, Superior Court Judicial District of New Britain at New Britain (September 18, 2003, Cohn, J.) ( 35 Conn.L.Rptr. 632).
In the present case, in order to protect the interests of the defendant, should plaintiff choose to pursue its request for injunctive relief, this court must consider an appropriate bond. Due to the impact future litigation would place upon the defendant town, a bond shall be set in the amount of $7,000,000, the amount of state funding the defendant will lose should this construction project be delayed.
DEWEY, J.