Pape v. McKinney
Pape v. McKinney
Opinion of the Court
This appeal is from a judgment of the Superior Court for the judicial district of Waterbury. The named plaintiff is the publisher of three newspapers and the coplaintiff is the corporation which publishes, prints and circulates them. The defendants are the members of the board of education of the city of Waterbury and the clerk of that board. The gravamen of the complaint, filed August 13, 1973, is that the defendants violated the provisions of § 1-21 of the General Statutes as it then read with respect to giving notices of two of their meetings and to keeping records of minutes of those meetings and the votes of individual members on each issue voted on at the meetings. By way of relief, the plaintiffs claimed “[a] Writ of Mandamus ordering the defendants, and each of them, to supply the plaintiffs with copies of the minutes of the meeting of June 11, 1973, together with a statement setting forth the vote of each of the defendant members in relation to such issues, and that the plaintiffs be supplied by the defendants with the record of the votes of each member of said Board of Education upon each of the issues before it at the meeting of June 28, 1973.” In answer to the complaint, the defendants denied the material allegations of the complaint insofar as they alleged a violation of the provisions of § 1-21. Thereafter, the plaintiffs moved for a summary judgment, claiming that there existed no genuine issue as to any material fact, supporting their motion by an appropriate affidavit of the named plaintiff. The
Although the issues are relatively simple, it is necessary to recite the facts found by the court in some detail in order to place them in understandable context. The amount and extent of the circu
As to the second meeting in question, held June 28,1973, the court found that at the regular meeting of the board held on June 18, at which a reporter from the plaintiff newspapers was present, it was voted to hold a meeting on June 28 in substitution for the meeting previously scheduled for July 2 since several members would be away on July 2. The clerk of the board gave notice to the city clerk of the changed date by letter dated June 21, 1973, and sent postcard notices to the members of the board, the mayor, the superintendent of school?, the school building inspector, the newspapers operated by the plaintiffs, and the liaison member of the board of aldermen, as is her regular practice.
On August 3, 1973, the named plaintiff made a request of the board of education for the minutes of meetings of the board held on June 11 and June 28. No minutes of the meeting held on June 11 were sent to him, no such minutes having been recorded. Minutes of the meeting held on June 28 were sent to him. In all minutes of the board meetings kept up until and including the minutes of the June 28 meeting, the clerk recorded the votes of
On the basis of these facts which it found, the court concluded that the board has a duty to comply with the requirements of § 1-21, that the meeting held on June 11 was in fact a special meeting and the statutory provisions as to notice and as to holding executive sessions were not complied with. It concluded, nevertheless, that it is impossible to comply with the plaintiffs’ prayer for relief seeking copies of minutes of the meeting and notes taken at the June 11 meeting because the evidence is clear that no notes were taken and no minutes of the meeting were kept. It also concluded that, since the plaintiffs have already acquired whatever information is available concerning the informal meeting of June 11, no decree of equitable relief to the plaintiffs would be of any avail and noted that the plaintiffs did not seek damages. As to the clerk’s method of recording votes, the court concluded that the minutes of the June 28 meeting comply with the
It was on the basis of these conclusions that the court directed that judgment enter for the defendants, in effect determining that the plaintiffs were not entitled to the issuance of the writ of mandamus which was the specific and only relief requested in their complaint. On their appeal, the plaintiffs have briefed two claims: (1) that the court erred in holding that the plaintiffs are not entitled to a copy of the notice of the meeting of June 11, the minutes of that meeting and a record of the votes cast by each member, and (2) that it erred in concluding that the clerk’s method of recording the votes of members of the board complied with the requirements of § 1-21.
In discussing the plaintiffs’ claims, it is important to bear in mind the basic principles which govern the issuance of the preemptory writ of mandamus. “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. Chesebro v. Babcock, 59 Conn. 213, 217, 22 A. 145; High, Extraordinary Legal Remedies (3d Ed.), pp. 10, 13. 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. . . . Even though the plaintiff has a legal right to the matter sought, the writ will not issue if that right be nothing more
Applying these governing principles to the facts found by the trial court, we find no abuse of its discretion and no error in its application of equitable principles in refusing at the time it rendered its judgment in June, 1974, to order that the defendants then furnish to the plaintiffs a copy of the notice of the June 11 meeting, a copy of nonexistent minutes and a record of votes never cast. This is particularly so in view of the unattached finding that no minutes or other, record of what transpired on June 11 were kept except a memorandum, possession of which was subsequently surreptitiously delivered to the executive editor of the plaintiff newspapers, no decisions were made, no votes taken, and no minutes recorded. It is not without good reason that the plaintiffs assigned no error to the
The plaintiffs’ second claim on their appeal asserts that the court erred in holding that the method of recording the votes of the members of the board complied with the requirements of § 1-21. We have already noted the method used and the court’s conclusion that it complied with the statute “because the identity and vote of each person voting can be readily ascertained from the minutes by consulting the minutes, which list the names of all members present, and identify by name all those voting negatively and all those abstaining from voting.” This conclusion is amply supported by the unattacked findings that the names of members who voted in favor of any motion could be readily ascertained by comparing the names of the members in attendance with the names of those whose names were recorded as voting negatively or as abstaining upon a particular motion and that when a roll call vote was requested it was recorded in the minutes as such and the names of those voting affirmatively and negatively or abstaining are listed specifically. The plaintiffs, nevertheless, contend that the provision of $ 1-21 which reads: “The votes of each member of any such body upon any issue before such body shall be reduced to writing and made available for public inspection within forty-eight hours, excluding any Saturday, Sunday or legal holiday, and shall also be recorded in the minutes of the session at which
There is no error.
In this opinion Longo, Barber and MacDonald, Js., concurred.
Dissenting Opinion
(dissenting). The method of recording the votes of the members of the defendant board did not comply with the mandate of § 1-21 of the General Statutes.
Section 1-21 requires that “[t]he votes of each member of any such body upon any issue before such body shall be reduced to writing and made available for public inspection within forty-eight hours . . . .” There is no ambiguity in the language. The trial court’s conclusion that the defendant McKinney’s furnishing of the minutes of its meeting complied with that statute because the identity and vote of each person voting could have been ascertained (since the minutes list the names of all members present, and identify by name all those voting negatively and all those abstaining from voting) should not stand.
Section 1-21 requires two separate written records of meetings: (1) a listing of the votes and (2) copies of minutes of the meeting. The plaintiffs did, not seek copies of the minutes. What they did seek was “that the plaintiffs be supplied by the defendants with the record of the votes of each member of said Board of Education upon each of the issues before it at the meeting of June 28,1973.” Since that request was not complied with, the board failed to carry out a clearly defined statutory duty imposed upon it.
Assume again that all ten members were in attendance but, before a vote was taken, four members left the meeting and the remaining six voted affirmatively. It would again be impossible to know who the six members were who voted affirmatively since the procedure followed by the board as found by the trial court would record the vote as follows: “ [A] vote upon a motion with nothing further indicates a -unanimous vote of the Board.”
The foregoing examples are not intended to suggest that, in the present case, the defendants intentionally or inadvertently failed to make known how a particular member voted on a particular issue, but, rather, they are intended to illustrate that submission of the minutes in place of a clear record of the votes could lead to possible irregularities and an infringement on the public’s right to know.
Because of the tremendous increases in governmental agencies and the great impact that their actions have on the individual, it is important that individuals have knowledge of the doings of these bodies. The provisions of § 1-21 accomplish a salutary objective in this regard by requiring specific and full disclosure of their doings. Moreover, each individual is better able to select more respon
To meet the mandate of § 1-21, a roll call vote is required so that the secretary can accurately record the names of those voting in the affirmative, the names of those voting in the negative, and the names of those abstaining. It is not enough for the chairman merely to ask for ayes and nayes upon a motion. The intent of the statute is specific: full disclosure. This court should not condone anything less than what the statute specifically requires.
I would, therefore, find error, reverse the judgment and order a remand with direction that judgment of mandamus be rendered for the plaintiffs.
Reference
- Full Case Name
- William J. Pape II Et Al. v. Vivian S. McKinney Et Al.
- Cited By
- 17 cases
- Status
- Published