Opinion
No. CV 09 5015821 S
April 30, 2010
MEMORANDUM OF DECISION RE APPLICATION FOR WRIT OF QUO WARRANTO
Before the court is the application of the plaintiff, William Harris, for a writ of quo warranto, filed pursuant to General Statutes § 52-491. In the complaint, the plaintiff asks that the court require the defendant, Ryan Mulcahy, to justify his title to the office of alderman of the City of Waterbury (city) and, if he cannot, declare said office to be vacant.
The plaintiff argues that the defendant's assumption of the office of alderman after the most recent city election violated the minority representation provision of the Charter of the City of Waterbury (charter), specifically § 3A-1(b), which prohibits more than nine members of one political party from serving on the Board of Aldermen (board) at any one time. The plaintiff contends that, although the defendant ran as a nominee of the Independent Party of Waterbury (Independent Party), he never removed his name from the enrollment list for the Democratic Party and was therefore legally a member of the Democratic Party when he assumed office. Because nine Democrats received more votes in the election than the defendant, the plaintiff concludes that § 3A-1(b) of the charter prohibited the defendant from assuming office.
The court has considered the joint stipulation of facts as well as the parties' written briefs, exhibits and oral argument. For the following reasons, the court finds that the defendant lawfully occupies the office of alderman. Therefore, the application for a writ of quo warranto is denied.
FACTS
The parties entered into a joint stipulation as to the material facts of this case. According to the joint stipulation, the material facts are as follows. On November 3, 2009, the city held a municipal election to fill, inter alia, all fifteen seats on the board for the upcoming term. Three parties nominated candidates for the board election — the Democratic Party, the Republican Party and the Independent Party. The Democratic Party nominated nine candidates, each of whom received at least the ninth-highest number of votes. The Independent Party nominated the defendant as a candidate on August 30, 2009, although he was still registered as a Democrat. The defendant received the thirteenth-highest number of votes. Jason A. Van Stone, a candidate nominated by the Republican Party, received the sixteenth-highest number of votes.
On November 6, 2009, the town clerk certified the fifteen candidates who won the most votes as the winners of the fifteen seats on the board. Accordingly, the nine Democratic candidates and the defendant were among those certified as winners, whereas Van Stone was not. In certifying him as a winner, the town clerk described the defendant as follows: "Registered Democrat ran with Independent Party." The town clerk did not describe any other candidate in a similar fashion. The defendant assumed office on December 1, 2009.
Believing that the defendant's assumption of office was unlawful, the plaintiff brought the present application on December 3, 2009. As an elector and taxpayer of the city, the plaintiff has standing to bring the application.
II DISCUSSION A Nature of Quo Warranto Proceeding
Pursuant to § 52-491, "[w]hen 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." "A quo warranto proceeding under the common law lies only to test the defendant's right to hold office de jure . . . In such an action, the burden is on the defendant to show, by a preponderance of the evidence, a complete title to the office in dispute." (Citation omitted; internal quotation marks omitted.) 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." New Haven Firebird Society v. Board of Fire Commissioners, 219 Conn. 432, 436, CT Page 10151 593 A.2d 1383 (1991).
B Parties' Arguments
The defendant offers the following argument. Under General Statutes § 9-167a(g), a candidate is legally deemed to be a member of a particular party, even if he or she is registered as a member of another party, if that candidate runs solely as the nominee of that particular party. Section 9-167a(a)(2) provides that the state's minority representation statute does not apply to a municipality whose charter, on January 1, 1987, "provided otherwise." The exception in § 9-167a(a)(2) does not make subsection (g) inapplicable to the city. The exception was crafted in 1987 to exempt cities, such as New London, that did not want to have a minority representation requirement imposed upon it and whose charter explicitly provided for no minority representation. By contrast, Waterbury's charter provided for minority representation in 1987 because it limited the number of board candidates for whom an elector could vote to nine. Moreover, Waterbury's current charter specifically provides that the provisions of the General Statutes are applicable to municipal elections and, regardless, under General Statutes § 7-192a, the city could not create its own minority representation provisions that are inconsistent with the General Statutes. Therefore, since the defendant ran solely as a nominee of the Independent Party, the law deems him a member of that party for purposes of minority representation, regardless of his registration as a Democrat. Accordingly, the defendant's assumption of the office of alderman did not violate § 3A-1(b) of the charter.
The plaintiff makes the following argument in response. Section 9-167a, including subsection (g), does not apply to elections held by the city. As evidenced by the minority representation requirement in § 3A-1(b), the charter "provided otherwise," which rendered the city exempt from the requirements of § 9-167a under the exception provided in subsection (a)(2). Under § 6A-8 of the charter, the city determines party membership using the methods described in the General Statutes to determine eligibility to participate in primaries and caucuses where a person changes his or her party registration. General Statutes §§ 9-396 and 9-431(a) provide that for an elector to be able to participate in a party's caucus or primary, respectively, that elector's name must be listed on that party's last-completed enrollment list; although, in the case of a primary, the elector may also be unaffiliated. Furthermore, to allow a registered Democrat to serve simply because he ran with the Independent Party would undermine certain other provisions of the charter designed to require the board to have bipartisan support to take certain actions. Therefore, the defendant is legally a member of the Democratic Party and not the Independent Party by virtue of his registration with the Democratic Party. Because the defendant is the tenth Democrat on the board, his occupation of the office of alderman violates § 3A-1(b) of the charter.
C Analysis
The powers, duties and composition of the board are governed by Chapter 3 of the charter. Under § 3A-1(a) of the charter, "[t]he legislative power and authority of the City shall be vested in the Board of Aldermen." Section 3A-1(b) provides that "[t]he Board of Aldermen shall consist of fifteen (15) Aldermen and Alderwomen elected at large, no more than nine (9) of whom shall be of one political party."
Chapter 2 of the charter contains the provisions governing municipal elections, including elections to the board. Section 2B-2(c) of the charter provides in relevant part: "No elector shall vote for more than nine (9) candidates of the Board of Aldermen . . . With respect to the election for the [Board] of Aldermen . . . the fifteen (15) . . . candidates . . ., receiving the greatest number of votes shall be elected as members of said [Board]." Furthermore, § 2A-1 of the charter provides: "The General Statutes . . . relating to elections, including, without limitation, residency requirements and nomination of candidates, shall be applicable to all elections held in accordance with the provisions of this Charter. The [Board of Aldermen] shall provide by ordinance for the manner of warning municipal elections and such additional regulations in respect of elections, not inconsistent with the statutes or this Charter, as may be necessary to accomplish the intent of this chapter."
Contrary to the plaintiff's contention, the charter does not provide, in § 6A-8 or anywhere else, specific rules for determining the legal party designation of a candidate for the board for purposes of minority representation. Part A of Chapter 6 governs city boards and commissions whose membership is to be appointed by the board. Section 6A-8 specifically 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 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." (Emphasis added.) By the plain language of this section, the rules for determining party membership do not apply to the creation of the board itself, but rather only to the boards and commissions appointed by the board. Therefore, pursuant to § 2A-1, any applicable rules for determining party membership for purposes of minority representation on the board must be provided for in the General Statutes.
General Statutes § 9-167a is the minority representation statute. Subsection (a)(1) provides a chart listing the maximum number of members a single party may have on any elected or appointed board or commission depending on the total number of seats available. For a body of fifteen members, the maximum number allowed from one party is two thirds of the total, which is ten members. Under subsection (e), however, "[n]othing in this section shall be construed to repeal, modify or prohibit enactment of any general or special act or charter which provides for a greater degree of minority representation than is provided by this section." Therefore, because the charter provides the more stringent limit of nine members of one party for a fifteen member body, the limit found in the charter is applicable.
Section 9-167a(g) provides: "For the purposes of this section, a person shall be deemed to be a member of the political party on whose enrollment list his name appears on the date . . . of his [or her] nomination as a candidate for election to . . . any office specified in subsection (a) of this section, provided . . . any person whose candidacy for election to an office is solely as the candidate of a party other than the party with which he is enrolled shall be deemed to be a member of the party of which he is such candidate." In other words, under subsection (g), a candidate running as the nominee of a single political party would be deemed a member of that party regardless of the party with which he or she is enrolled.
The defendant ran solely as a nominee of the Independent Party. Therefore, under § 9-167a(g), he would be considered a member of that party for purposes of minority representation, regardless of his registration as a Democrat. The crux of the disagreement between the parties, however, is whether subsection (g) is applicable. Section 9-167a(a)(2) provides: "The provisions of this section shall not apply . . . to a legislative body of a municipality . . . for which the charter or a special act, on January 1, 1987, provided otherwise . . ." Specifically, the parties disagree on the meaning of the term "provided otherwise."
"When construing a statute, [the court's] fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, [it] seek[s] 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 . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation." (Internal quotation marks omitted.) Achillion Pharmaceuticals, Inc. v. Law, 291 Conn. 525, 531, 970 A.2d 57 (2009).
As used in § 9-167a(a)(2), the phrase "provided otherwise" is ambiguous. According to Merriam-Webster's Collegiate Dictionary (10th ed. 1997), the word "otherwise," as used in subsection (a)(2), could mean both "something or anything else" or "something to the contrary." In other words, the charters that "provided otherwise" in 1987 could plausibly have been those providing for a different minority representation rule or those providing for no minority representation.
Examining the legislative history of Public Acts 1987, No. 87-498, which inserted the ambiguous language into the statute, it becomes clear that the legislature intended for such language to exempt application of § 9-167a to the legislative bodies of a municipality whose charter, on January 1, 1987, specifically provided for no minority representation. Representative Jay Levin summarized the bill as follows: "[T]his act proposes very simply that there be minority representation provided . . . for legislative bodies . . . unless the provisions of a charter or a special act which were in effect on January 1, 1987, [provide] otherwise." 30 H.R. Proc. Pt. 25, 1987 Sess., p. 9189. The word "otherwise" is used to mean "to the contrary" in this context. This interpretation is consistent with the purpose of offering this bill, as explained by Representative Levin, which was to make "absolutely clear" that the minority representation provisions of § 9-167a would not apply to the city of New London, whose charter explicitly provided for no minority representation, instead providing that the candidates with the seven highest vote totals would be entitled to the seven seats on the city council. 30 H.R. Proc., supra, pp. 9188, 9192. In other words, as Representative Cibes explained, "[i]f the charter was completely silent with . . . respect to the method of election to city councils, if the city council were elected at large, then I would think that [§] 9-167[a] as proposed in this [b]ill would continue to mandate minority representation. If, however, it provided [as New London's charter does] that say the top seven vote getters for a seven member council were to be elected . . . then [there] ought to be this exemption, that's the kind of provision of a charter which ought to exempt towns from this minority representation requirement." Conn. Joint Standing Committee Hearings, Government Administration and Elections, Pt. 2, 1987 Sess., p. 374.
The version of Waterbury's charter that was effective on January 1, 1987 (1987 charter), did not specifically provide for no minority representation; therefore, it did not provide "otherwise" within the meaning of § 9-167a(a)(2). See also 30 H.R. Proc., supra, p. 9214 ("So, it is, there are three communities in the state, the City and Town of Groton and the City of New London, which have pre-existing [charter] provisions. It was New London that was left out. This will make the statutory scheme consistent. I urge support of the legislation."). Chapter 3 of the 1987 charter governed the composition and powers of the board. There was nothing in that chapter explicitly rejecting minority representation. In fact that chapter was silent as to minority representation because it did not include the language now present in § 3A-1(b) or any similar language. Therefore, the city is not exempted from the requirements of § 9-167a, including subsection (g).
The 1987 charter, at § 1131(a), did have a provision in the section governing elections limiting the number of board candidates for which an elector may vote to nine and providing that the fifteen board candidates receiving the most votes were to be elected. Judge McWeeny, in an oral decision rendered December 10, 2001, however, ruled that the city's limitation on the number of candidates for whom an elector may vote was a "limitation on the process . . . and not a limit on the composition of the [board]." (Joint Exhibits, Exhibit 6, p. 4.) Therefore, Judge McWeeny determined that the provision was not a minority representation provision. In light of this ruling, the court declines to construe the provision directing the election of the top fifteen vote-getters, which is located in the same section, as a rejection of minority representation, despite its similarity to the New London provision referenced in the legislative history of P.A. 87-498. In fact, in the current charter, the same provision is still present at § 2B-2(c) even though there is now a minority representation provision found at § 3A-1(b). Furthermore, the sponsors of the bill that became P.A. 87-498 clearly contemplated adding an exemption from minority representation for only New London because they interpreted New London's charter, including its provision electing the top seven vote-getters, as rejecting minority representation.
Even assuming, arguendo, that the exception in subsection (a)(2) does apply, in light of the narrow purpose of the exception the legal effect would be that the city would be free to have no minority representation. As evidenced by the presence of § 3A-1(b), the city does not reject minority representation. Furthermore, the charter itself provides no rule for determining an alderman's partisan affiliation for the purpose of determining compliance with § 3A-1(b). Under § 2A-1, therefore, the rule in § 9-167a(g) would be applicable anyway.
III CONCLUSION
Based on the foregoing, the court finds that the defendant is legally considered a member of the Independent Party for purposes of minority representation. Therefore, his assumption of the office of alderman on December 1, 2009, did not violate § 3A-1(b) of the charter. Accordingly, the plaintiff's application for a writ of quo warranto is denied.
It is so ordered.