Lobsenz v. Davidoff
Lobsenz v. Davidoff
Opinion of the Court
This appeal concerns a disputed ruling by the election moderator of the town of Westport with respect to the results of an election
Herbert M. Lobsenz, the Eepublican displaced by the moderator’s action, brought this suit against the Democratic candidate certified as the winner of the third position, Jerry Davidoff; the election moderator, Nicholas Thiemann; and the town clerk, Joan Hyde. Eelying on General Statutes § 9-328,
Both the named defendant and the defendant Hyde, however, have raised a threshold question: Did the trial court have subject matter jurisdiction over this dispute? The defendants maintain that jurisdiction was lacking because the two candidates receiving the largest number of votes overall were not notified of the pendency of the proceedings below. Connecticut law governing hearings on disputed municipal elections requires notice “to be given to any candidate or candidates whose election or nomination may be affected by the decision upon such hearing.” General Statutes § 9-328. That law also confers authority on the trial court to order a new election. Id. Because a new election for all three positions would affect all candidates, including the top two, the defendants argue that the trial court did not comply with the statute and did not have the proper parties before it. Thus, the defendants conclude that the court never had jurisdiction to hear this matter. We reach the opposite conclusion.
As noted earlier, no declaratory relief was granted in this ease. Therefore, to the extent that the defendants rely on the holding of State ex rel. Kelman v. Schaffer, 161 Conn. 522, 290 A.2d 327 (1971), their claim fails because Kelman concerned a declaratory judgment and the particular notice requirements applicable thereto. Id., 526. See Practice Book, 1978, § 390 (d). A review of the defendants’ broader claim, that the court had no jurisdiction under § 9-328 absent notice to the other candidates, demonstrates that it too is unsound.
This conclusion remains unchanged by the presence, in § 9-328, of authority for the trial court to order a new election. The bare existence of this remedy in the statute does not require that, in a case where a new election is not sought by the parties and not contemplated by the court, the court must nevertheless proceed as if that remedy were to be implemented. The proper parties in this case were before the court and it had subject matter jurisdiction over the controversy before it.
A more detailed factual picture is necessary to decide this case on the merits. In the November 6, 1979 election, only three out of five of the positions on the board were to be filled. Of the two positions not up for election, one was occupied by a Republican, one by a Democrat. The Westport town charter provides that “[n]o political party shall nominate more candidates than the number which, if elected, will give that party a bare majority of the members of the board. No elector shall vote
As indicated earlier, chapter 5 section 1 (b) of the town charter limits both the number of candidates each party may nominate and the number of votes each elector may cast.
In construing provisions which regulate the electoral process for the purpose of securing minority representation one must differentiate between those which limit the number of candidates which a political party may nominate or for whom an elector may vote and those which limit the number of members of one party who may serve on a public body. The focus of the former provisions is on the road to the forum whereas that of the latter is on the forum itself. We must therefore examine the provisions as we find them. We must assume that if one method is chosen rather than the other the provision chosen was intended to act in accordance with the plain meaning of its language. Baston v. Ricci, 174 Conn. 522, 528, 391 A.2d 161 (1978).
General Statutes § 9-204
The last line of defense against the plaintiff’s assumption of the third position on the board is General Statutes § 9-204a.
Section 9-204a applies to an election for the board of education only if a town has authorized (1) “the
The defendant completes his argument by urging us to interpret the words “any political party” as meaning “some political parties” rather than “all political parties.” The plaintiff, on the other hand, contends that “any political party” in § 9-204a must be held to mean “all political parties.” Both meanings have been attributed to the word “any.” See Muller v. Town Plan & Zoning Commission, 145 Conn. 325, 328-29, 142 A.2d 524 (1958). To find the sense in which it is employed in § 9-204a, we look to the wording of the statute, its legislative history and its basic policy. Id., 329.
During the legislative debate on the bill that was later enacted as Public Acts 1973, No. 73-266 and codified as § 9-204a of the General Statutes, Bepresentative Albert W. Cretella, Jr., noted that under state statutes then in effect, no political party could nominate more than one-half of the number of vacancies on a board of education if the number of vacancies was even, or, if the number of vacancies
It is clear that the Westport town charter does not allow all political parties to nominate a number of candidates equal to the number of vacancies even though it does allow some parties to do so. Further, the charter does not generally authorize the electors to vote for the full number of vacancies. It does so provide under the same circumstances posited above in which a minority party could conceivably
Because the threshold requirements for the section’s applicability have not been met, the section, by its own terms, does not apply. Thus the second sentence of the section,
There is no error.
In this opinion Cotter, C. J., Bogdanski and A. Armentauo, Js., concurred.
[General Statutes] See. 9-328. contests and complaints IN ELECTION OF MUNICIPAL OFFICERS AND NOMINATION OF JUSTICES OF the peace. Any elector or candidate claiming to have been aggrieved by any ruling of any election official in connection with an election for any municipal office or a primary for justice of the peace, or any elector or candidate claiming that there has been a mistake in the count of votes cast for any such office at such election or primary, may bring a complaint to any judge of the superior court for relief therefrom. If such complaint is made prior to such election or primary, such judge shall proceed expeditiously to render judgment on the complaint. If such complaint is made subsequent to such election or primary, it shall be brought within ten days of
It is not claimed that the provision governing the number of votes each elector may cast was violated.
General Statutes § 9-167a limits the composition of the board in the present case to no more than four members from the same political party. If the plaintiff were declared elected, there would bo four IJepublieans on the board, thus satisfying the statute.
“ [General Statutes] Sec. 9-204. minority representation on board op education. When the number of members to be elected to the board of education for the same term at any election is even, no elector shall vote for more than half that number. When the number of members to be elected to the board of education for the same term at any election is odd, no elector shall vote for more than a bare majority of that number.”
“[General Statutes] Sec. 9-414. nominations not to exceed PLACES TO BE pilled; municipal primaries. No town committee, caucus or convention shall endorse and certify to the clerk of a municipality, and no primary shall choose, more candidates for
“[General Statutes] Sec. 9-204a. nomination and voting for FULL NUMBER OF BOARD MEMBERS TO BE ELECTED AUTHORIZED. Notwithstanding the provisions of sections 9-204 and 9-414 and of any special act or town charter, any town may, by charter, or by referendum vote taken at any regular election in such town pursuant to either a vote of its legislative body or a petition signed by at least five per cent of the electors of such town as established by the last-preceding registry list of such town, authorize the nomination by any political party of candidates for election as members of the board of education of such town equal to the number of members of said board to be elected at such election, and authorize the electors of such town to vote for the full number of such members to be elected, provided not more than one-half of the members of said board declared elected to the same term at such election shall be of the same political party if the number to be elected is even and not more than a bare majority thereof shall be members of the same political party if the number to be elected is odd. If the number of candidates, sufficient to fill the offices voted on, receiving the highest number of votes at any such election are of the same political party, those persons sufficient to fill one-half or a bare majority of such offices, as the case may be, who received the highest number of votes among such candidates shall be declared elected and those persons receiving the next highest number of votes who do not belong to such political party, sufficient in number to fill the remaining offices, shall be declared elected.”
Representative Albert W. Cretella, Jr., remarked as follows:
“This bill if adopted, will allow towns at a local option the right to have a political party if they so choose nominate as many persons as there are vacancies to fill and allow an elector to vote for as many vacancies as there are to fill.
“The action comes about in a town only after a town has either amended its charter to permit it, and you will note that a charter change requires a referendum, or in the absence of a charter change the local option will be in the form of a referendum. In either case the town can only adopt the provisions of this bill if a referendum is held, either a charter referendum or a referendum authorized by the legislative body of the town, or a referendum authorized by a petition.
“The amendment which was offered clearly is to indicate that there must be a referendum in either case. If the town adopts the referendum, then the party can nominate as many vacancies as there are to be filled.” 16 H. R. Proc., Pt. 8, 1973 Sess., p. 4102.
See footnote 6, supra.
Dissenting Opinion
(dissenting). I do not agree that the trial court had authority to hear this case without having first given notice to all of those elected to the board of education in the contested election.
There is no dispute between us that if a new election had been a possible remedy before the trial court, then those whose election might have been jeopardized would have been entitled to notice and to an opportunity to be heard. General Statutes § 9-328; State ex rel. Kelman v. Schaffer, 161 Conn. 522, 527, 290 A.2d 327 (1971). We disagree about the interpretation of that part of § 9-328 which provides, without limitation, that a “judge may order a new election” if he “finds any error in the rulings of the election official.” As I read this language,
Reference
- Full Case Name
- Herbert M. Lobsenz v. Jerry Davidoff Et Al.
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- 10 cases
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- Published