Neil DuPont, Sr. et al. v. Leslie W. Wriggley, Jr. et al. (2012)

MEMORANDUM OF DECISION

The plaintiff, Neil DuPont and other plaintiffs have brought this mandamus complaint against Leslie W. Wriggley, Jr. and other defendants.   The individual defendants were the Selectmen of the Town at the time of the application at issue.   The Board of Selectmen is also a named defendant.

The plaintiffs seek an order from the court to compel the defendants “to call a special meeting as required by Connecticut General Statute Section 7–1(a).”   The defendants claim that the plaintiffs' application for a special meeting was unclear and that it did not constitute a “legitimate and proper purpose” and therefore, the defendants have no duty to warn the requested meeting.

The court heard the case on December 6, 2011.   The parties submitted a stipulation of facts and additional exhibits at the trial.   The court granted the parties until January 20, 2012 to submit their respective briefs.   The record closed on that date.

FINDINGS OF FACTS

The plaintiffs and defendants stipulate and the court finds the following facts:

1. Canterbury, Connecticut is a statutory town, with a three-member board of selectmen, without a charter, and is subject to the provisions of Connecticut General Statutes Section 7–1(a).

2. The Town of Canterbury (“Town”) adopted an ordinance Effecting Compensation of Elected Officials February 27, 2004.   Ex. A.

3. On July 28, 2009, an application (“Application”) signed by more than twenty inhabitants of the Town qualified to vote in town meetings was submitted to the town clerk.   Ex. B.

4. The plaintiffs are signers of the Application and are inhabitants of the Town qualified to vote at Town Meetings.

5. The Application called for the Selectmen of the Town to warn a special town meeting in accordance with Section 7–1(a) of the Connecticut General Statutes.

6. The individual defendants were the Selectmen of the Town at the time of the Application.   The Board of Selectmen (“Board”) is also a named defendant.

7. The First Selectman requested the Town Attorney to review the Application.

8. By a letter dated August 14, 2009, a copy of which is attached as Exhibit C, the Town Attorney advised that “the petition [Application] is unclear and does not constitute a legitimate and proper purpose to require the Board to call a special town meeting.”

9. The Board did not warn a special town meeting to be held within twenty-one (21) days of the filing of the Application.

10. At the request of the First Selectman, the Town Attorney submitted a proposed ordinance pertaining to the pay, salary, benefits and method of compensation of Town Officials (“proposed ordinance”) to the Board.   A copy of the Town Attorney's August 14, 2009 cover letter is attached as Exhibit D and the proposed ordinance is attached as Exhibit D–1.

11. Both of the August 14, 2009 letters from the Town Attorney were read aloud at the August 18, 2009 regular meeting of the Board.

12. The Board voted unanimously to place the proposed ordinance prepared by the Town Attorney on the agenda of a special town meeting.   Copies of the minutes of the August 18, 2009 meeting of the Board of Selectmen are attached hereto as Exhibit E.

13. On August 31, 2009, the plaintiffs served the instant action.   By way of relief, the complaint seeks “an order in the nature of a mandamus compelling the selectman to call a special meeting as required by Connecticut General Statutes Section 7–1(a).”

14. The proposed ordinance was submitted to a special town meeting on September 16, 2009.

15. At that meeting, a motion was made to amend the proposed ordinance by revising section 3 to provide that any change in pay “shall be subject to the restrictions set forth in sections 1 and 2, except that they may receive a pay increase at the beginning of the third year of office comparable to the increase received by officials elected to two year terms of office in that year.”

16. The motion to approve the amendment was adopted.

17. Thereafter, the proposed ordinance was adopted by the special town meeting.   A copy of the minutes of the September 16, 2009 special town meeting is attached hereto as exhibit F.

DISCUSSION

In AvalonBay Communities, Inc. et al v. Sewer Commission of the City of Milford et al, 270 Conn. 409 (2004), our Supreme Court held that:  “Mandamus is an extraordinary remedy, available in limited circumstances for limited purposes ․ It is fundamental that the issuance of the writ rests in the discretion of the court, not an arbitrary discretion exercised as a result of caprice but a sound discretion exercised in accordance with recognized principles of law ․ That discretion will be exercised in favor of issuing the writ only where the plaintiff has a clear legal right to have done that which he seeks ․ The writ is proper only when (1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary;  (2) the party applying for the writ has a clear legal right to have the duty performed;  and (3) there is no other specific adequate remedy.   Even satisfaction of this demanding [three-pronged] test does not, however, automatically compel issuance of the requested writ of mandamus ․ In deciding the propriety of a writ of mandamus, the trial court exercises discretion rooted in the principles of equity.”  (Internal quotation omitted.)  (Citation omitted.)  Id. at 416, 417.

The compensation of public officials is regulated by General Statutes Section 7–148(c)(5)(C).  The same statute requires that a town must exercise that authority by ordinance “․ when the exercise of such powers has the effect of:  ․ (2) Creating a permanent local law of general applicability.”   Connecticut General Statutes Section 7148(b).

General Statutes Section 7–1(a) requires that the selectmen “shall warn a special town meeting on application of twenty inhabitants qualified to vote in town meetings, such meeting to be held within twenty-one days after receiving such application.”

Connecticut General Statute § 7–1(a) provides that the selectman “shall warn a special town meeting on application of twenty inhabitants qualified to vote in town meetings.”   In Morris v. Congdon, 277 Conn. 565 (2006), our Supreme Court reaffirmed the long standing rule that if an application is for “any legitimate and proper purpose,” the selectmen must warn the meeting.   Here, the selectmen, prior to warning a requested special town meeting, asked the town attorney for an opinion on the application presented by the plaintiffs.

The town attorney advised that “the petition [application] is unclear and does not constitute a legitimate and proper purpose to require the Board to call a special town meeting.”   The Board accepted the opinion of the town attorney, and it did not warn a special town meeting to be held within twenty-one (21) days of the filing of the application.  “In exercising that discretion, special caution is warranted where the use of public funds is involved and a burden may be unlawfully placed on the taxpayers.”  Hennessey v. Bridgeport, 213 Conn. 656 (1990).

At the request of the First Selectman, the town attorney submitted a proposed ordinance pertaining to the pay, salary, benefits and method of compensation of town officials to the Board.   Ex. D–1. The August 14, 2009 letter from the town attorney and the proposed ordinance were read aloud at the August 18, 2009 regular meeting of the Board.

The Board voted unanimously to place the proposed ordinance prepared by the town attorney on the agenda for a special town meeting on September 16, 2009.   At that meeting, a motion was made to amend the proposed ordinance by revising section three (3) to provide that any change in pay “shall be subject to the restrictions set forth in sections 1 and 2, except that they may receive a pay increase at the beginning of the third year of office comparable to the increase received by officials elected to two year terms of office in that year.”   The first named plaintiff, Neil Dupont, Sr. and the plaintiffs' attorney participated in the process of amending the proposed ordinance.

The motion to approve the amendment was adopted.   Thereafter, the proposed ordinance as amended was adopted by the special town meeting.   Ex. F.

“The public interest is considered in issuing writs of mandamus.   Thus, even if the plaintiff shows his or her entitlement to the writ, the court may refuse to issue it if public injury or embarrassment will result there from.   Additionally, whether disorder and confusion in public and fiscal affairs will result from the issuance of the writ will be considered.”   52 Am.Jur.2d 350, Mandamus § 21.

The plaintiffs argue that the Board should not have exercised its discretion and should have warned the request for a town meeting without changing the initial proposed ordinance.   The court does not agree.   The Board has the obligation to its citizens to analyze the proposed ordinance and determine if it is for a “legitimate and proper purpose” and to seek the advice of its town attorney.   In Peck v. Booth, 42 Conn. 271 (1875), the court, in addressing a request for a mandamus requiring the selectmen to warn a special town meeting, held that the duties of the selectmen are not merely to the applicants alone, but to the town as a whole.   Here, the Board determined that the application was unclear, confusing and internally inconsistent, and it concluded that the application failed to present a legitimate and proper purpose.

The Board accepted the concerns of the town attorney regarding the proposed ordinance.   In addition, the Board instructed the town attorney to prepare changes to the application to rectify the internal conflict in terms, and the confusion and ambiguity contained in the application.   The town attorney complied with the request.

The proposed ordinance was submitted to a town meeting where it was again amended and thereafter adopted by the voters of the Town.

The plaintiffs contend that the case of Cummings v. Looney, 89 Conn. 557 (1915) is controlling of the outcome of the instant case.   In Cummings, the court held that an application for a town meeting to fill the term of a deceased town clerk was proper, even though it contained erroneous language regarding the designation of the expiration of the term to be filled.  “The selectmen could not mistake the object of the election as requested ․ The erroneous designation was a case of plain surplusage.”  Id. 561–62.   The court disagrees.   In the present case, the language in the application was confusing and ambiguous and it was not “plain surplusage.”   Thus, the duty of performance was not mandatory because of the confusing and ambiguous language of the application.

The second prong of the mandamus test is not satisfied in this case.   The plaintiffs do not possess a clear legal right to have the duty performed because they did not have a legitimate and proper purpose.

The third prong has been satisfied because the plaintiffs received a specific remedy to their application.   The selectmen, sua sponte, warned a town meeting to consider the same subject matter presented by the plaintiffs' application.   The proposed ordinance clarified the confusion and ambiguity contained in the initial application.   The proposed ordinance was put to a town meeting, where it was amended and adopted by the town meeting.   The plaintiffs were present at the town meeting and had the opportunity to be heard.   In fact counsel for the plaintiff made the motion to amend the proposed ordinance and that motion was seconded by plaintiff, Neil Dupont, Sr., Ex. F. If the plaintiffs are not satisfied with the amended ordinance that was passed regarding the issue brought before the Board, they can petition the Board by a new application.

Assuming, in arguendo, that the plaintiffs satisfied the three-pronged mandamus test, the court is not required to grant the writ of mandamus.   Equity requires that the request for mandamus be denied.   The Board, after hearing the will of the applicants, warned a town meeting to consider the proposed ordinance which the plaintiffs amended, and the amended ordinance was adopted by the town meeting.   The object sought by the plaintiffs having been accomplished, requiring the Town to hold another town meeting to consider the same matter would place an unwarranted burden on the taxpayers and otherwise waste municipal resources.   After considering the facts of this case, a writ of mandamus is unwarranted and contrary to the public interest.   See Sullivan v. Morgan, 155 Conn. 630 (1967).

CONCLUSION

The plaintiffs' application did not present a legitimate and proper purpose, and the Board had no duty to warn a special town meeting.   Because the Board had no duty to warn the requested meeting, the plaintiff cannot satisfy the requirements for the issuance of a mandamus, and the court denies the request.

IT IS ORDERED:  DENIED.

BY THE COURT

Angelo L. dos Santos, Senior Judge

dos Santos, Angelo L., J.