Opinion
CV175007162S
10-24-2017
Shannon Derby et al. v. Town of Plainfield Board of Selectmen
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
John D. Boland, Senior Judge.
On June 12, 2017, the town of Plainfield adopted its municipal budget for fiscal year 2018. In the present action, plaintiffs Shannon Derby and Daniel Reale contend that the process by which that budget was approved violated both state statute and the provisions of the town's charter.
I. Chronology
The June 12 vote was the third vote taken in this year's budget adoption process. The voting component of that process had commenced on May 15. Prior to that date, the town's board of finance had approved a budget including a tax increase. § 2-4a of the town's charter provides that " [i]n the event of a proposed mil rate increase there shall be a Referendum." Accordingly, the selectmen had on their own authority determined that the vote on that proposal would have to be taken at a referendum. On May 15, voters at the referendum rejected that budget. Turnout, though, was less than twenty-five percent of the eligible voters.
Following that result, the board of finance made alterations to the first proposal and forwarded the amended draft to the board of selectmen. § 2-4b of the town's charter provides that " Should the Annual or any other Town Budget Referendum fail to adopt the budget, another Referendum shall be held within fourteen days thereafter until final approval is given. However, if less than 25% of eligible electors cast ballots at a Referendum, then subsequent balloting on the budget shall be at a Town Meeting." Accordingly, that second vote, conducted on May 30, was taken at a town meeting. Again, the budget failed to pass.
This suit concerns what occurred on June 15 when the third vote on the budget was taken. After the board of finance had made additional alterations to its proposal and submitted that product to the board of selectmen, those officials, defendants in this action, scheduled the matter for a vote at town meeting, to be held on June 12. On June 8, four calendar days prior thereto, plaintiff Derby and others delivered to the town clerk petitions demanding that the vote be taken at referendum. Because on the first referendum fewer than 25% of the eligible voters turned out to vote, the selectmen determined that the charter directed that no additional referenda were allowed. They therefore declined to schedule a referendum on the third budget proposal and proceeded to hold a voting town meeting on June 12. A majority of those present at that meeting voted to approve the budget then presented to them.
Shannon Derby filed this action on June 26, and seeks an order of this court forcing the selectmen to annul the result of the June 12 meeting and send the third budget proposal to referendum. The court (J. Fischer, J.) denied her ex parte requests for staying the town's operations under the budget. Intervening plaintiff Daniel Reale on July 19 filed a petition seeking an order of mandamus compelling the selectmen to perform their " ministerial duty" by sending the third proposed budget to a referendum vote, and also seeking " declaratory relief that the prior budget referendum (sic) of 2017-2018 held by Town Meeting is void." Though distinct in nomenclature, the ends sought by both plaintiffs have substantial practical overlap.
After the court scheduled a hearing on the two applications for September 11, Mr. Reale filed a motion for summary judgment to which defendants objected. Subsequently, the town filed its own motion for summary judgment. The court informed them that the scheduled hearing would also take up both motions. The parties submitted evidence, filed post-hearing briefs, and later appeared for oral argument on the merits of their respective positions.
II. Statutory Provisions
Plaintiffs urge that this court follow state statute and determine that after the citizens presented the town clerk with petitions calling for a vote by machine and bearing more than two hundred qualified signatures the selectmen were left with no discretion but to resort to that procedure as a matter of duty. They cite as controlling authority General Statutes § 7-7, providing in pertinent part that " [t]wo hundred or more persons or ten per cent of the total number qualified to vote in the meeting of a town or other municipal corporation, whichever is less, may petition the clerk or secretary of such town or municipal corporation, in writing, at least twenty-four hours prior to any such meeting, requesting that any item or items on the call of such meeting be submitted to the persons qualified to vote in such meeting not less than seven nor more than fourteen days thereafter, on a day to be set by the town meeting or, if the town meeting does not set a date, by the town selectmen, for a vote by paper ballots or by a " Yes" or " No" vote on the voting machines, during the hours between twelve o'clock noon and eight o'clock p.m."
Plaintiffs argue that the statute is more permissive than the charter's provisions, and hence, given the well-known hierarchy that constitutions limit and define what statutes may require, and that statutes in turn limit and define what a local ordinance may provide, the statute renders the charter's provisions essentially immaterial. While that hierarchy is generally controlling, plaintiffs fail to note that it is not absolute. Another statute, § 7-187 et seq.--commonly known as the Home Rule Act--allows the inversion of the priority in certain instances. " It is well established that a city's charter is the fountainhead of municipal powers . . . The charter serves as an enabling act, both creating power and prescribing the form in which it must be exercised . . . It follows that agents of a city, including its commissions, have no source of authority beyond the charter. [T]heir powers are measured and limited by the express language in which authority is given or by the implication necessary to enable them to perform some duty cast upon them by express language . . ." (Citation omitted; internal quotation marks omitted.) AEL Realty Holdings v. Board of Representatives, 82 Conn.App. 613, 616-17, 847 A.2d 998 (2004). Town charter provisions directing the procedures for adopting local budgets are an instance in which a statute's mandate may be blunted.
In Windham Taxpayers Association v. Board of Selectmen of Town of Windham, 234 Conn. 513, 662 A.2d 1281 (1995), plaintiffs sued the town's selectmen to require them to call a town meeting to reconsider a previous municipal vote authorizing funding for the construction of a new school. It was not contested that plaintiffs had fully complied with the terms of General Statutes § 7-1, which defines the process by which citizens may demand the convening of a town meeting. The town's charter disallowed a second vote except under circumstances not present in the case. Rejecting " the plaintiffs' view, [that] these statutory provisions always control, " the Court held that " in matters primarily concerning local matters, the provisions of the town charter control"; 234 Conn. 513, 532, 662 A.2d 1281. There is little substantive difference between the arguments made in the Windham case as to the dominance of § 7-1 and those plaintiffs make in the present case as to the dominance of § 7-7. See, also, Board of Educ. of Town and Borough of Naugatuck v. Town of Borough of Naugatuck, 268 Conn. 295, 843 A.2d 603 (2004) (" [we reaffirm] our determination in Caulfield that, in an area of local concern, such as local budgetary policy, general statutory provisions must yield to municipal charter provisions governing the same subject matter . . . budgetary matters only . . . under the Home Rule Act, are the prerogative of this state's towns and municipalities"; 268 Conn. 295, 308-9, 843 A.2d 603).
Caulfield v. Noble, 178 Conn. 81, 420 A.2d 1160 (1979).
The instant case concerns provisions of Plainfield's charter regarding the procedures by which the town's annual budget is to be adopted. Plaintiffs are incorrect in maintaining that § 7-7 rather than that charter is the dominant authority in this case.
III. The Charter Provisions
A. Section 2-4b
As indicated, Plainfield's charter provides in Section 2-4b that " if less than 25% of eligible electors cast ballots at a Referendum, then subsequent balloting on the budget shall be at a Town Meeting." Or does it? That is a verbatim quote of the text used in the 2007 published edition of the charter. But the court must resolve a discrepancy between that text and earlier editions of the charter before attempting to construe its meaning. Plainfield first adopted a charter in 1984. Although that document provided for a referendum to be held on town votes after petitions were circulated and so on, it was silent as to any specific opportunity for a vote by machine on the adoption of the annual budget. In 1992 and 2004 the charter was amended. On both occasions there was compliance with the process outlined by the Home Rule Act, namely that a charter revision or charter revision commission constituted in the manner dictated by statute consider and hold hearings on the provisions under review and file a report on those proposals for the benefit of the legislative body (in this case, the town meeting) before a vote was taken. The 1992 process amended Section 2-4b to provide that " [s]hould the Annual or any other Town Budget Referendum fail to adopt the budget, another Referendum shall be held within fourteen days thereafter until final approval is given. However, if less than 25% of the eligible electors cast ballots at a Referendum, and all subsequent referendums then all subsequent balloting on the budget shall be at a Town Meeting." (Emphasis added.) Further amendments to the charter were made in 2004. These amendments were not directed at Section 2-4b and are not germane to this case. At the conclusion of the 2004 amendment process, however, the town had to publish a revised edition of the charter incorporating that year's revisions. For many years prior thereto, the town had a full-time financial officer working at town hall; this individual has since retired and could not be located as a witness. By design or by default, this individual became the editor of the 2004 text revisions and took it upon himself to alter section 2-4b by instructing the printer to delete the words " and all subsequent referendums" and " all." Thus the charter as published in 2004 is missing those words, and that deletion carried forward into the edition published in 2007. The omission was apparently not caught until this litigation arose. The parties to this suit relied upon what must be called an adulterated text in conducting themselves in 2017 and in filing their papers in this action.
Only Louisa Trakas, the current town clerk, testified on the genesis of the disparate articulations of the text of § 2-4b. She has been town clerk continuously since 2005 and previously served as a full-time employee at town hall in other capacities. On direct, she stated that the 2004 charter revision process led to an alteration in the language of this section of the charter. On redirect, she stated that the only connection between the 2004 process and the amended language was their contemporaneous occurrence. Having observed her testimony, it is clear to me that her redirect testimony relates the correct version of events. Plaintiffs proferred no evidence on this score.
At the conclusion of the September 11 hearing I requested that the parties identify any case law helpful in resolving which of two governmental enactments must be recognized and enforced--the original and authentic version, or an adulterated version held out to the public as a correct edition. Only Mr. Reale, who is not an attorney, addressed this concern. He cites Marshall Field v. Clark, 143 U.S. 649, 12 S.Ct. 495, 36 L.Ed. 294 (1892), in which importers protesting duties levied against them sought to have the Tariff Act of 1890 declared unconstitutional on the basis that the published edition of the tariff statute seemed to omit a pertinent amendment described in the congressional journals. The court imposed what it called the Enrolled Bill Rule, under which a legislative text attested to by officers of both houses of congress must be construed to be authentic, notwithstanding contrary material found in other sources. That is not the precise condition of the charter text involved here. Section 2-4b of the charter as prescribed by the town's legislative body in 1992 is entirely consistent with material in the legislative history leading up to its adoption. Instead, what plaintiffs seek is that this court impeach the legislation as it was originally expressed on account of subsequent amendments not sanctioned by any known principle of legislative adoption. Two canons of statutory construction are helpful here. First, it is fundamental that fidelity to the terms of the charter adoption process requires construction of the subsection as including the double iteration of the word " all" just as in the original text. " Our inquiry in any issue of statutory interpretation beginis with the language of the statute at issue"; Branford v. Santa Barbara, 294 Conn. 803, 810, 988 A.2d 221 (2010). Second, and equally fundamental, is the principle that deference to the will of the voters who used that process to implement a certain rule dictates that their expression of their intention be respected. " When construing a statute, our fundamental objective is to ascertain and give effect to the apparent intent of the legislature"; Styslinger v. Brewster Park, LLC, 321 Conn. 312, 316, 138 A.3d 257 (2016). Plaintiffs urge that the town be estopped from relying at all upon the omitted words in light of its role in publishing the adulterated text, and alternatively argue that by the passage of time the published language must be held to take on the force of law. Surely, confidence in democracy wanes when citizens who weigh their political options with reference to a text published by the town are later told that their exertions were doomed from the onset.
Absent any authority dictating the correct outcome in this unusual case, the canons must not be ignored in order to reach an idiosyncratic result under circumstances as rare and likely not to be repeated as are those present here. Particularly with respect to local governments in which officers are often part-time or volunteers, and where informality is often the rule, accidental or malfeasant tinkering with the positive law of a community cannot be accommodated. To recognize a de facto statute of limitations or make novel use of equitable theories of waiver or estoppel after which unauthorized amendments supplant an original enactment would provide the wrong incentives to those engaged in the administration of those organizations.
So if, in the wake of a referendum at which less than 25% of the eligible electors cast ballots (i.e., the May 15 referendum), all subsequent balloting on the budget is to be conducted at a town meeting, the only permissible outcome under Section 2-4b is to conclude that the vote at town meeting on June 12 was not merely appropriate but mandatory.
The town argues that the result would be the same even under the adulterated text of that subsection. Obviously, the hermeneutical path leading to that conclusion is less direct. The task is to determine what is meant by a provision that " if less than 25% of eligible electors cast ballots at a Referendum, then subsequent balloting on the budget shall be at a Town Meeting." " [A] municipally created rule, directive, or policy [is to be construed] pursuant to the principles of statutory construction . . . [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . 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"; Washburne v. Town of Madison, 175 Conn.App. 613, 167 A.3d 1029 (2017) (certification petition filed).
" In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language . . . If a statute or regulation does not sufficiently define a term, it is appropriate to look to the common understanding of the term as expressed in a dictionary"; Levine v. Sterling, 300 Conn. 521, 16 A.3d 664 (2011). Several common words used in the subsection are pertinent to its meaning. First, the " however" with which the sentence in question begins is a word normally understood to signify an unusual or special case; not the norm. Next, " subsequent"; when used in its temporal sense, is an adjective not limited to a singular event but frequently embracing all events following a defined moment. The noun " balloting" likewise is consistent with multiplicity. Used in combination, these words connote a defined and continuing rule. Against that rule, plaintiffs can only point to the indefinite article " a" before " town meeting" as a stop. They argue that the singularity of this article signifies that only the first vote following a low-turnout referendum--here, the May 30 vote--had to be held as a town meeting. They ignore the article's equally common function as merely illustrative rather than having precise quantitative significance. By selectively choosing only one of the letter's several meanings, they come to the conclusion that the article precludes town meeting balloting on later rounds even when a referendum fails to meet the turnout threshold. If the " a" is read as illustrative, in contrast, their argument collapses. Further, their logic applies the quantitative connotation of the article to only half the sentence, and conveniently ignores the fact that this indefinite article also appears in the sentence's conditional clause--" if less than 25% of eligible electors cast ballots at a Referendum." If " a" denotes the singular in its second appearance, why should it not thus be interpreted in its first? If so, voters would thus be entitled to " a " referendum, but not to several unless turnout meets the designated minimum level.
Webster's Third New International Dictionary defines " however" as " (1) in whatever manner, way, or degree . . . (2) NEVERTHELESS, NO WITHSTANDING, YET, STILL--often used to indicate a reservation after something conceded or a decision after consideration of adverse points . . ."
That dictionary defines " subsequent" in its adjectival use as " (1) following in time; coming or being later than something else . . ."
That dictionary defines " balloting" as " to vote or decide by ballot, " which, as pertains here, is itself defined as " (2)(a) the action or system of voting by the use of ballots or by any device for casting or recording votes (as a voting machine)."
That dictionary includes over fifty definitions of " a, " but those illuminating this discussion are " (3)(b) used as a function word to suggest limitation in number, " and " (4)(f) used as a function word before a mass noun to suggest that a kind or type is under consideration."
To the extent that any ambiguity inheres in this text, consideration of the legislative history and of the policy inspiring this provision dispels the confusion. The former includes the 1992 amendment discussed above, which would indeed remain the only source to be analyzed but for the financial director's unauthorized editing. As to policy, the charter provides a timetable designed to insure that the budget adoption process will be concluded by the last day of the fiscal year, June 30. Thus the first town meeting (which may require a vote at referendum) must be held on the third Monday in May. Since the board of finance must revisit a defeated budget, and the selectmen thereafter must schedule another vote, the roughly six-week period before the fiscal year ends permits at most three or four attempts to pass a budget in a timely fashion. The publication required for the holding of a referendum slows that process down. Additionally, conducting a vote by referendum requires that notice be published and that the polls be open in town for at least eight hours, with consequent cost for the legal notice and for the services of poll workers. In 1992, proponents of the amendment to § 2-4b outlined these costs in terms of time and money to the policy makers, i.e., the charter voters, and by a margin of more than three to one they reasonably elected their avoidance.
This date is directed by statute; see, General Statutes § 7-382. If a town fails to adopt a budget by that date, progressively more severe constraints limit the town's abilities to address its needs that have a financial aspect; see General Statutes § 7-405.
Under either the original, authentic version of this provision of the charter, or the adulterated version, plaintiffs have failed to establish that § 2-4b of Plainfield's charter permits a referendum vote on a subsequent budget draft after response to a prior referendum falls below twenty-five percent of those eligible to vote.
B. Section 2-7
§ 2-7 of the charter is captioned " Petition for Referendum" and in terms similar but not identical to § 7-7 of the General Statutes spells out the process by which a vote to be taken at town meeting may instead be continued to a referendum. There is no question that the plaintiffs satisfied the section's requirements in terms of timing, number of signatures, etc. Plaintiffs argue that this section overrides the limiting language of § 2-4b. The town contends that § 2-7 is useful for other matters that may come before a town meeting, but that the charter's particular provisions in § 2-4b for a referendum vote on the annual budget supersede this more general provision.
First of all, it is clear that the two charter provisions at issue are contradictory. In the days prior to June 8 when plaintiffs were gathering signatures as they believed § 2-7 permitted them to do, they could not have done so without anticipating that § 2-4b might be raised as an obstacle to their goal of a referendum vote. As discussed above, it directs that balloting subsequent to a low-turnout referendum be by town meeting. Facial tension between charter provisions, as with statutes, compels a court to determine " [w]hat the legislature intended" so as to " create a harmonious body of law"; Tomlinson v. Tomlinson, 305 Conn. 539, 552, 46 A.3d 112 (2012). That case involved a conflict between a statute (§ 46b-224) authorizing modification of a child support order after a change in custody of a child with another (§ 46b-86a) permitting parties to a separation agreement to preclude modification of alimony and support orders, of which the parties to the case had taken advantage in crafting their separation agreement. The opinion hews to the long-standing rule that " specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling . . . Where there are two provisions in a statute, one of which is general and designed to apply to cases generally, and the other is particular and relates to only one case or subject within the scope of a general provision, then the particular provision must prevail; and if both cannot apply, the particular provision will be treated as an exception to the general provision." This directive is not unique to family cases, and has since been applied in a variety of non-family cases; see, Brennan v. Brennan Associates, 316 Conn. 677, 113 A.3d 957 (2015), and State v. Victor O., 320 Conn. 239, 128 A.3d 940 (2016).
Chapter 2 of the Plainfield charter deals generally with town meetings. Town meetings take up a wide variety of subjects, and their number may be many over the course of time. § 2-7 has general applicability to such gatherings. § 2-4, and only § 2-4, deals particularly with " the annual budget meeting." Town meetings aimed at enacting an ordinance or approving a municipal improvement may be considered optional in the sense that delay in completing a meeting, or even whether a meeting is held, are circumstances unlikely to affect the long-term wellbeing of the community. The annual budget meeting, in contrast, has an existential dimension. A town without a budget after July 1 becomes a town with progressively diminished powers and exposed to potential forfeiture of its autonomy. It is not anomalous that a generally liberal tolerance for referenda might coexist with an exception limiting their use in the interest of achieving a budget expeditiously. § 2-7 still serves a purpose as to all other categories of town meeting, and thus would not be rendered meaningless by recognizing it as inapplicable to the annual budget meeting.
Another guide affecting the choice between two conflicting provisions is the rule that " [i]f the expressions of legislative will are irreconcilable, the latest prevails, " State ex rel. Sloane v. Reidy, 152 Conn. 419, 425, 209 A.2d 674, (1965). After quoting that Connecticut case, the Tomlinson court proceeded at page 553 to cite a national treatise as black letter law to the same effect: " see also 2B N. Singer & J. Singer, Sutherland Statutory Construction (7th Ed.2008) § 51:2, p. 228 (" where two statutes deal with the same subject matter, the more recent enactment prevails as the latest expression of legislative will"). § 2-4b first appears in the Plainfield charter after the 1992 charter amendment process, while § 2-7 is found within the first edition of the charter in 1984.
In consideration of these criteria, the permissive provisions of § 2-7 must yield to the constraints of § 2-4b.
IV. Other Issues Raised
Following the trial but before oral argument, defendant requested leave to amend its answer to the Reale complaint by adding the special defense of laches. He objects. His objection is overruled.
" Laches consists of two elements. First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant"; State v. Lombardo Bros. Mason Contractors, Inc., 307 Conn. 412, 54 A.3d 1005 (2012) (fn.3). Mr. Reale filed his intervening complaint 37 days after the town meeting whose result he challenges. That is an unreasonable and inexcusable delay, and standing alone might warrant a judgment against him. Here, however, he came into this case with judicial approval (Calmar, J.) after plaintiff Derby had framed the issues to which defendant had to respond. Although Mr. Reale presented his issues using somewhat different verbiage, his challenge to the town was essentially the same and thus the town cannot be said to have been prejudiced by his participation.
In the course of these proceedings, Defendant has also urged this court to find that both plaintiffs waived their right to challenge the selectmen's decision by awaiting the outcome of the town meeting and only filing suits afterwards. " Waiver is the intentional relinquishment or abandonment of a known right or privilege . . . Waiver does not have to be express, but may consist of acts or conduct from which waiver may be implied"; AFSCME, Council 4, Local 704 v. Dept. of Public Health, 272 Conn. 617, 623, 866 A.2d 582 (2005).
It is unclear whether defendant still stands upon this argument. Plaintiff Derby delivered her signed petitions to the office of the town clerk on June 8, a Friday. The town meeting of which she complains was held on the following Tuesday. To hold that she waived a known right by waiting until after June 12 to file a lawsuit would place an almost impossible burden upon her, and thus it cannot be said that she waived her right to file this action.
For their part, plaintiffs oppose defendant's introduction of the original text of § 2-4b on the basis that it should be estopped from undermining the text of the charter as published and distributed. " There are two essential elements to an estoppel: the party must do or say something which is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief; and the other party, influenced thereby, must actually change his position or do something to his injury which he otherwise would not have done. Estoppel rests on the misleading conduct of one party to the prejudice of the other. In the absence of prejudice, estoppel does not exist"; Breen v. Aetna Cas. & Sur. Co., 153 Conn. 633, 643, 220 A.2d 254 (1966). Even assuming that plaintiffs were prejudiced by the faulty publication of the charter text, there is no evidence that any town official intended or calculated that consequence. To the contrary, the first selectman testified credibly that he informed plaintiffs before they set out on the road towards a referendum which has led to these proceedings that he did not believe they had the right to that process. For that as well as for the reasons discussed in section III A, above, their claim is rejected.
V. Conclusion
The intervening plaintiff's motion for summary judgment is denied, as he has failed to show that the defendants violated any duty imposed upon them by law in proceeding to vote on the budget at town meeting on June 12, 2017. The town's motion for summary judgment is denied, since the trial revealed factual information only noted in a footnote in its memorandum but which turns out to be material to its defense. On the complaint and on the intervening complaint, judgment enters for the defendants. Because the pleadings reveal no remaining factual issues in need of determination, and no additional legal theories upon which plaintiffs can fashion a case entitling them to judgment in their favor, the complaint and the intervening complaint are dismissed.