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Poprosky v. Shea

Court of Appeals of Connecticut

May 1, 1990

Daniel J. POPROSKY et al.
v.
Jeremiah SHEA et al.

Argued Dec. 13, 1989.

Page 757

John D. Boland, Putnam, for appellants (plaintiffs).

Michael P. Carey, Norwich, for appellees (named defendant et al.).

Hugh I. Manke, New Haven, for appellees (defendant Edward Greenwold et al.).

Before DALY, NORCOTT and FOTI, JJ.

[21 Conn.App. 352] FOTI, Judge.

The plaintiffs in this quo warranto [1] action appeal from the trial court's judgment in favor of the defendants. The plaintiffs claim that the trial court erred (1) in failing to find that the reform ordinance was not an illegal recall, (2) in basing its decision on another trial court decision, and (3) in finding that the restructuring ordinance was saved by permissible goals. We find no error.

The plaintiffs, five former members of the Lisbon planning and zoning commission, brought this quo warranto action challenging the right of the defendants to hold office as planning and zoning commission members. The plaintiffs were removed from office on January 16, 1987, when the town adopted a new ordinance, passed by a voter referendum, that restructured and revised the planning and zoning commission.

The plaintiffs contend that this ordinance was an illegal recall petition under Connecticut law, and assert that the underlying motive or purpose of the ordinance was to remove improperly the plaintiffs from office [21 Conn.App. 353] because they were opposed to the construction and operation of a trash-to-energy facility in Lisbon. The defendants are the new members of the commission who were appointed after the adoption of the ordinance. The plaintiffs contend that the defendants continue to exercise the

Page 758

rights, powers and privileges of the planning and zoning commission unlawfully, and to the exclusion of the plaintiffs.

In this action, the plaintiffs sought an order requiring the defendants to answer by what warrant they claim to hold their positions and exercise the rights, power and privileges of the planning and zoning commission. The trial court concluded that the ordinance did not constitute a recall and that the defendants had met their burden by showing complete title to the offices in dispute.

The plaintiffs first claim on appeal that the trial court erred in refusing to characterize the effect of the 1987 ordinance as a recall prohibited by Connecticut law.

The facts relevant to this claim are as follows. In an earlier, separate action brought by citizens of the town of Lisbon, the plaintiffs in that action sought a writ of mandamus requiring that the defendants, who were members of the board of selectmen, consider the proposed restructuring ordinance. Busch v. Prokop, Superior Court, judicial district of New London at Norwich, Docket No. 086861 (December 12, 1988). The Busch court ordered the board of selectmen to meet and call or warn that a special meeting was to be held on a proposed ordinance that would reform the planning and zoning commission. At the special town meeting, held on January 5, 1987, no action was taken regarding the proposed ordinance because a signed petition was presented requesting that the town meeting be rescheduled so that a voter referendum could be held on the proposed ordinance. The voter referendum was held on [21 Conn.App. 354] January 16, 1987. The ballots cast passed the ordinance with 759 voting in favor of the ordinance and 614 voting against it. Notice of adoption of the ordinance was given by publication and all new members of the planning and zoning commission and their alternates were sworn in on February 4, 1987. To satisfy the court's mandate in Busch, the special meeting on the ordinance was then rescheduled and held.

No appeal was filed in that matter. The parties to that action chose instead to wait until the voter referendum was held adopting the ordinance. The plaintiffs in the present case concede that the 1987 ordinance was adopted according to lawful procedure. They argue here only that the underlying motive or purpose of the ordinance was improper.

A recall is a procedure where an elected official may be removed at any time during his term of office by a vote of the people at an election called for such purpose by a specified number of citizens. [2]

Over a century ago our Supreme Court held that a recall is illegal where "an act of the legislature repeals by its terms a certain section of the General Statutes and abolishes a board of officers appointed under it, and the same act creates precisely the same board and clothes them with the same powers [21 Conn.App. 355] and duties enumerated in the section repealed." (Emphasis added.) State ex rel. Birdsey v. Baldwin, 45 Conn. 134, 144 (1877).

In the present case, there was no illegal recall of the plaintiffs from their positions on the planning and zoning commission. Although the 1987 ordinance consequently removed the plaintiffs from office, it did more than clothe the board members with the same powers and duties as the 1962 ordinance. Specifically, the 1987 ordinance completely revised and restructured the planning and zoning commission as it was set up under the 1962 ordinance. A review of the record shows that the 1987 ordinance provides for alternates and minority representation, whereas the 1962 ordinance provided for neither. The six year term has been changed to a four year term of office thereby subjecting members to a more frequent voter ...


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