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Cooklittman v. Board of Selectmen of Town of Fairfield

Supreme Court of Connecticut

May 23, 2018

TARA COOK-LITTMAN ET AL.
v.
BOARD OF SELECTMEN OF THE TOWN OF FAIRFIELD ET AL.

          Argued February 22, 2018

         Procedural History

         Application for a writ of mandamus directing the named defendant to schedule a special election to fill a vacancy for the office of selectman in the town of Fairfield, and for other relief, brought to the Superior Court in the judicial district of Fairfield, where the parties presented a joint stipulation of facts and issue to the court, Bellis, J.; thereafter, the court, Bellis, J., rendered judgment for the plaintiffs, from which the named defendant et al. appealed. Reversed; judgment directed.

          James T. Baldwin, with whom, on the brief, was Catherine L. Creager, for the appellants (named defendant et al.).

          Joel Z. Green and William M. Burke, with whom, on the brief, was Linda Pesce Laske, for the appellees (plaintiffs).

          Robert T. Morrin for the appellee (defendant Michael C. Tetreau).

          Palmer, McDonald, Robinson, D'Auria, Mullins and Kahn, Js. [*]

          OPINION

          ROBINSON, J.

         In this appeal, we consider how a town charter provision that controls the filling of vacancies on that town's board of selectmen relates to General Statutes § 9-222, [1] which provides a statutory procedure for filling such vacancies, in light of the home rule principles that govern the relationship between municipalities and the state. The defendants town of Fairfield (town) and its Board of Selectmen (board)[2]appeal[3] from the judgment of the trial court granting an application by the plaintiffs, five individual electors of the town, [4] for a writ of mandamus ordering a special election for a vacant seat on the board. On appeal, the defendants claim, inter alia, that article VI, § 6.3 (B), of the Fairfield Town Charter (charter), [5] which does not provide for a special election when the board has acted to fill a vacancy within thirty days, is controlling over § 9-222, which contemplates the possibility of a petition for a special election to fill such a vacancy even after the board has acted, and that, therefore, the trial court improperly issued a writ of mandamus compelling a special election in the present case. We agree with the defendants and, accordingly, reverse the judgment of the trial court.

         The record, including a joint stipulation of the parties, reveals the following undisputed facts and procedural history. In November, 2015, Michael C. Tetreau, Christopher W. Tymniak, and Laurie McArdle were elected to the board for a four year term commencing on November 20, 2015, and ending on November 20, 2019. McArdle, a member of the Republican Party, subsequently resigned from the position of selectman, effective December 1, 2016. On December 7, 2016, Tetreau and Tymniak, as the remaining selectmen, appointed Edward Bates on III, who is also a member of the Republican Party, to serve out McArdle's remaining term.

         Subsequently, numerous electors in the town, including the plaintiffs; see footnote 4 of this opinion; filed petitions with Elizabeth Browne, the town clerk, ‘‘request[ing] that the vacancy in the office of [s]elect-man . . . be filled by a special election in accordance with [§ 9-222].'' On January 9, 2017, Browne certified that those petitions collectively contained signatures of more than 5 percent of the town's electors. Browne then requested advice from Stanton Lesser, the town attorney, about whether the statutes providing for a special election were applicable because the board had filled the vacancy by appointment within thirty days, as required by § 6.3 (B) of the charter. Lesser responded with a letter to Browne, opining that a special election was necessary. On January 9, 2017, Browne notified the board of the certified petitions and proposed a special election date of June 6, 2017.

         The minutes of the board's January 25, 2017 meeting included a resolution, approved by the Office of the Secretary of the State (Secretary), scheduling the special election for June 6, 2017, in accordance with General Statutes §§ 9-164 and 9-222. At the meeting, Tymniak amended that resolution (1) to conclude that, ‘‘pursuant to the plain meaning of [§ 6.3 (B) of the charter] there is no need to fill a vacancy on the [board] in accordance with the procedure set forth in [c]hapter 146 of the General Statutes because it was filled by the [remaining selectmen] within [thirty] days, '' and (2) to declare the petitions for a special election to be ‘‘void ab initio insofar as no such special election is required or appropriate under the clear and plain meaning of [the charter].'' The board then voted two to one in favor of the amended resolution, thus refusing to set a date for the special election.

         Lesser then requested an opinion from the Secretary, pursuant to General Statutes § 9-3, concerning whether the town was ‘‘legally obligated to hold a special election for the position of [s]electman, said position being . . . vacated by [McArdle], who was replaced with . . . Bateson by the remaining two selectmen.'' Lesser apprised the Secretary about the dispute with respect to the effect of the charter. By letter dated January 30, 2017, Attorney Theodore Bromley issued an opinion, on behalf of the Secretary, concluding that, under § 9-222, Browne was ‘‘required to ‘call' a special election for the office of [s]electman, '' which would be held ‘‘in accordance with the provisions of . . . § 9-164, '' thus requiring the board ‘‘to establish a date for the special election . . . which cannot be later than [150 days] following the filing of the petitions submitted.'' That letter did not, however, mention the charter. Following subsequent communications with a representative of the Republican town committee, Bromley declined to amend the January 30 letter, stating that the Secretary's interpretive authority is limited to statutes and does not extend to the charter, leaving it to Lesser, as the town attorney, to resolve any conflicts between those sources.

         Lesser forwarded the January 30 letter to the board with a cover letter dated January 31, 2017, continuing to opine that the board's resolution declining to set a special election improperly ‘‘cites only [the charter], and ignores the provisions of . . . § 9-222 dealing with the term of the appointed selectman, not the method of appointment, which mandates the special election.'' Lesser provided the board with a resolution for consideration at its February 1, 2017 meeting that would rescind the previous resolution and schedule a special election on June 6, 2017. At that meeting, the board considered Lesser's proposed resolution and voted two to one against it, again declining to schedule a special election. Nevertheless, on February 3, 2017, Lesser instructed Browne to issue statutory notices calling a special election. Browne issued that notice to the Secretary on February 6, 2017, and then sent copies of that notice to the chairmen of the Democratic and Republican town committees.

         Subsequently, on February 17, 2017, the plaintiffs brought the present application, seeking a writ of mandamus ordering the board to schedule a date for that special election. On March 10, 2017, after hearing argument based on stipulated facts, the trial court concluded that the board was required to conduct a special election in accordance with § 9-222. In a subsequent memorandum of decision, the trial court reasoned that ‘‘there is no conflict between the charter and the statute'' because ‘‘[w]hile both § 9-222 and the . . . [c]harter require that a vacancy on the [b]oard . . . be filled within thirty days, only the statute addresses the length of the replacement appointee's term. As the charter does not address the term to be served by the appointed person, and neither authorizes nor forbids a special election, the defendants' restrictive interpretation of the charter would create a conflict where none exists. Accordingly, in the absence of a conflict, the court finds that [General Statutes] § 9-7 does not apply to the present case, and instead finds that the statutory provision concerning special elections in § 9-222 is applicable to the present case.'' Accordingly, the trial court rendered judgment for the plaintiffs and issued a writ of mandamus ordering the board ‘‘to schedule a special election for the office of selectman of . . . in accordance with . . . § 9-222 and the applicable statutes referenced therein.''[6]

         The defendants then filed the present appeal from the judgment of the trial court granting the writ of mandamus.[7] With no appellate stay in place prior to the argument and decision of this appeal, [8] the town conducted the special election on June 6, 2017. This resulted in the election of Kevin P. Kiley to ...


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