___ A.3d ___ (Conn. 2015), SC 19442, Arras v. Regional School District Number 14

Docket Nº:SC 19442
Citation:___ A.3d ___, 319 Conn. 245
Opinion Judge:VERTEFEUILLE, J.
Party Name:THOMAS ARRAS ET AL. v. REGIONAL SCHOOL DISTRICT NUMBER 14 ET AL.
Attorney:Deborah G. Stevenson, for the appellants (plaintiffs). Mark J. Sommaruga, with whom were William Stevens, Anthony F. DiPentima and, on the brief, Zachary D. Schurin, for the appellees (defendants). Patrice A. McCarthy filed a brief for the Connecticut Association of Boards of Education as amicus ...
Judge Panel:Rogers, C. J., and Palmer, Zarella, Eveleigh, Espinosa, Robinson and Vertefeuille, Js. PALMER, EVELEIGH and ESPINOSA, Js., concurred. ZARELLA, J., with whom ROGERS, C. J., and ROBINSON, J., join, dissenting.
Case Date:October 20, 2015
Court:Supreme Court of Connecticut
 
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Page ___

___ A.3d ___ (Conn. 2015)

319 Conn. 245

THOMAS ARRAS ET AL.

v.

REGIONAL SCHOOL DISTRICT NUMBER 14 ET AL.

No. SC 19442

Supreme Court of Connecticut

October 20, 2015

Argued May 19, 2015

Deborah G. Stevenson, for the appellants (plaintiffs).

Mark J. Sommaruga, with whom were William Stevens, Anthony F. DiPentima and, on the brief, Zachary D. Schurin, for the appellees (defendants).

[319 Conn. 247] Patrice A. McCarthy filed a brief for the Connecticut Association of Boards of Education as amicus curiae.

Rogers, C. J., and Palmer, Zarella, Eveleigh, Espinosa, Robinson and Vertefeuille, Js.

OPINION

VERTEFEUILLE, J.

The primary question that we must answer in this appeal is whether the failure to comply with the provisions of General Statutes §§ 10-56, 1 10-47c 2 and 9-226 3 requiring towns to publish warning [319 Conn. 248] of a referendum in the same manner as provided for the election of town officials is prejudicial per se, automatically requiring the invalidation of the referendum results. The plaintiffs 4 brought this action against the defendants 5 alleging that the defendant towns of Woodbury and Bethlehem had held a referendum on the question of whether to approve a resolution by the defendant Board of Education for Regional School District Number 14 (board of education) authorizing the issuance of bonds and notes to finance certain school construction expenses, without issuing the statutorily required warning. The plaintiffs contended, among other things, that this failure rendered the referendum null and void ab initio. The defendants filed motions to strike certain of the plaintiffs’ claims, which the trial court granted in part. Both the plaintiffs and the defendants then filed motions for summary judgment as to the remaining claims. The trial court concluded that there was no genuine issue of material fact as to whether the defendants had substantially complied with the statutory notice provisions and that there was no [319 Conn. 249] evidence that their failure to properly warn of the referendum had affected the vote. Accordingly, the trial court denied the plaintiffs’ motion for summary judgment, granted the defendants’ motions for summary judgment and rendered judgment for the defendants. The plaintiffs appeal 6 from the judgment of the trial court claiming that the court improperly granted the defendants’ motions for summary judgment because the failure to comply with the statutory notice provisions was inherently prejudicial. We affirm the judgment of the trial court, albeit on the basis of somewhat different reasoning.

The record reveals the following undisputed facts. On May 16, 2013, the board of education held a special meeting at which it approved a resolution appropriating $63, 820, 605 for the renovation of and additions to Nonnewaug High School and authorized the issuance of bonds and notes in the same amount to finance the appropriation. The board of education also approved resolutions recommending to the towns within the defendant Regional School District Number 14 (regional school district), namely, the towns of Woodbury and Bethlehem, that they subject the bond and note authorization to a referendum vote, to be held on June 18, 2013, on the following question: ‘‘Shall [the regional school district] appropriate $63, 820, 605 for renovations of and additions to Nonnewaug High School, and authorize the issu[ance] of bonds and notes in the same amount to finance the appropriation?’’

On May 17, 2013, Debra W. Carlton, the executive assistant to the superintendent of the regional school district, forwarded the draft minutes of the May 16, 2013 special meeting of the board of education and a [319 Conn. 250] document entitled ‘‘Voting Machine Information’’ setting forth the approved ballot question to the town clerks of Woodbury and Bethlehem. 7 The town clerks never arranged for any notice of the referendum to be published in a newspaper of general circulation in the towns, as required by §§ 10-56, 10-47c and 9-226. 8

On June 4, 2013, however, the Woodbury registrar of voters issued a news release regarding the referendum. 9] [319 Conn. 251] A newspaper, Voices, which has a circulation of 1360 in Bethlehem and 3338 in Woodbury, published an article about the referendum on June 12, 2013. The article provided the information that had been set forth in the news release and provided contact information for the town clerks and registrars of voters in both Bethlehem and Woodbury. Voices also had published an article about the school renovations and referring to the referendum on May 22, 2013. In addition, the Waterbury Republican American published articles on May 27, 2013, and on June 10, 2013. Another newspaper, the Sunday Republican, published an article on June 16, 2013, in which it described the renovations and referred to the June 18, 2013 referendum. On June 17, 2013, an online news service known as the Woodbury-Middlebury Patch also published an item describing the renovations and stating that the referendum would be held the following day.

The regional school district also made efforts to publicize the referendum. Specifically, at some point before June 18, 2013, the regional school district mailed notices about the school renovations and proposed referendum to all residents of the towns of Woodbury and Bethlehem and posted information about the referendum on its website. The regional school district also used a ‘‘robocalling’’ system to call voters by telephone to notify them of the date, time and voting places for the referendum. 10

The referendum was held on June 18, 2013, and the voters approved the referendum question by a vote of [319 Conn. 252] 1269 to 1265. Thereafter, the Woodbury and Bethlehem town clerks refused to certify the referendum results to the Commissioner of Education because there had been no proper legal warning of the referendum pursuant to §§ 10-56, 10-47c and 9-226. This uncertainty regarding the validity of the referendum results spawned two separate actions. Specifically, the towns of Bethlehem and Woodbury brought an action against the regional school district in the Superior Court for the judicial district of Litchfield (Litchfield action) seeking, inter alia, a declaratory judgment as to whether the results of the referendum were valid. The regional school district filed a counterclaim in the Litchfield action seeking a declaratory judgment that the referendum results were valid and the issuance of a writ of mandamus ordering the respective town clerks to certify the results of the referendum. In addition to the Litchfield action, the plaintiffs filed the present action in the judicial district of Waterbury alleging that the defendants had failed to provide proper legal notice of the referendum and seeking the invalidation of the referendum results. 11 The trial court in the present [319 Conn. 253] action stayed the proceedings pending resolution of the Litchfield action.

The plaintiffs in the present case filed an appearance in the Litchfield action for the limited purpose of seeking to consolidate the two cases. They refused, however, to be made parties to the Litchfield action, despite their claim to the trial court in the present case that the Litchfield action was void ab initio, 12 and despite the warnings of the trial court that, if the plaintiffs failed to raise that claim in the Litchfield action, the claim might be ‘‘lost.’’ On December 10, 2013, the trial court in the Litchfield action rendered judgment for the regional school district. The court concluded that ‘‘there [was] no evidence that the failure to strictly comply with the [statutory] notice requirement, by publishing an official ‘warning’ in the newspapers, was substantial or caused the results of the referendum to be seriously in doubt.’’

Meanwhile, in the present case, the plaintiffs had filed a motion for summary judgment. After the trial court in the Litchfield action rendered its decision, the defendants in the present case filed cross motions for summary judgment. 13 Relying on the reasoning of the trial court’s decision in the Litchfield action, the trial court in the present case concluded that there was no genuine issue of material fact as to whether the defendants had substantially complied with the warning provisions of §§ 10-56, 10-47c and 9-226 by publicizing the referendum in various ways and there was also no evidence that the defendants’ failure to strictly comply [319 Conn. 254] with the statutes had affected the outcome of the referendum vote. Accordingly, the trial court granted the defendants’ motions for summary judgment and rendered judgment for the defendants.

This appeal followed. 14 The plaintiffs claim on appeal that the trial court improperly rendered summary judgment for the defendants 15 because the failure to strictly comply with the warning provisions of §§ 10-56, 10-47c and 9-226 was prejudicial per se. 16 The defendants [319 Conn. 255] respond that the trial court properly granted their motions for summary judgment because there was no genuine issue of material fact as to whether there had been substantial compliance with the statutory notice provisions and there was no evidence that the failure to comply strictly with the statutes caused the results of the referendum to be seriously in doubt. For the reasons that follow, we agree with the defendants that the trial court properly granted their motions for summary judgment because there was no evidence that the referendum results were affected by the lack of a proper warning.

The principles that govern our review of a trial court’s ruling on a motion for summary judgment are well established. ‘‘Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings...

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