In a CT Superior Court courtroom today, Judge David Tobin dismissed the lawsuit brought by Michael Powers against the Town of Wilton.
On his way out of the courtroom, Powers said he intends to appeal. The story is developing, we are updating accordingly, below…
UPDATE 4 p.m., Dec. 16–Judge Tobin took just over 30 minutes to wrap up Monday’s hearing in the lawsuit Powers brought against the town. For the two motions being heard–one by Powers to disqualify the town’s law firm, and the other by the town’s attorney, Bercham Moses lawyer Ryan Driscoll, to dismiss the case completely–Tobin definitively ruled in favor of Wilton on both motions.
Powers filed his suit against Wilton and the Board of Selectmen in September, in the middle of his unsuccessful bid for first selectman, seeking an injunction to nullify 37 BOS votes taken in 2019. He asserted that the selectmen didn’t follow proper procedure in deliberating those 37 votes, because they didn’t exactly follow steps prescribed by Robert’s Rules of Order for making motions, seconding, discussing and voting.
As evidence, Powers pointed to the “Guide to Serving on a Town Board/Commission” that the town issues to new board and commission members. He argued that the Guide spells out town policy for those boards and commissions to use Robert’s Rules of Order for parliamentary procedure during meetings.
On behalf of his clients–the Town of Wilton, the BOS, and all five BOS members–Driscoll counter-argued that the Guide is only a “helpful reference,” and that, “Robert’s Rules of Order will provide the rules to assist Boards/Commission…” but have not been adopted as the “controlling authority for [Town] procedure.” He also argued that Powers had no standing to file the suit.
From the start, Tobin seemed somewhat skeptical of Powers–chuckling when the plaintiff introduced himself to the judge by saying, “I’m Michael Richard Powers, from the law firm of Michael Richard Powers, representing Michael Richard Powers.”
Powers raised his first objection to the judge not about the Town’s motion to dismiss but about GOOD Morning Wilton’s presence in the courtroom. “A member of the media is here using electronic equipment to record or take notes, outside of judicial requirements…”
The judge interrupted Powers to say that he saw no issue with a member of the press in the courtroom, questioning whether it would be right to infringe on the first amendment; he also noted that having a member of the public to witness courtroom events was something positive.
[Editor’s note–GOOD Morning Wilton was granted permission to use a computer for note taking by the court clerk prior to the start of proceedings. GMW used no audio or video recording and the computer was only used to take notes during the hearing.]
Wilton’s Motion to Dismiss
Tobin asked Powers several times to cite the specific legal case, state statute or municipal ordinance that he was using to support his case that Roberts Rules of Order was the legal authority governing town procedure.
“I don’t know of any court cases that say a failure to call Roberts Rules of Order is fatal as long as a vote is taken on the matter,” Tobin told Powers at the beginning of the questioning. He said while the Freedom of Information Act had the legal ‘authority’ over municipal meeting procedures, Roberts Rules had none “other than a matter where a board member can raise a point of order.”
The first case Powers brought up was a case from the 1840s, noting it was a case about towns following rules about agendas and notices. Again, Tobin cut Powers off:
“I think in 1840 General Roberts was probably a cadet at West Point, so he didn’t have his rules written at that point. They only came in the latter half of the 19th century. Clearly you’re conflating the rules of procedure used by people running a meeting…with requirements of statutes … under the Freedom of Information Act [FOIA]. But you don’t have a claim under FOIA.”
Again, Tobin asked Powers to cite a law supporting the argument that failure to use Roberts Rules can be used as a basis for voiding actions taken by a board–asking Powers to cite something after the time Roberts Rules began to be used.
Powers’ Motion to Disqualify Wilton’s Counsel
At this point, the judge turned to Powers’ motion to disqualify Bercham Moses and Ira Boom as Wilton’s counsel, but not before criticizing the plaintiff’s delivery. As Powers tried to make his oral argument explaining why counsel should be dismissed, Judge Tobin said, “Let me read your motion because I may understand what you wrote better than what you’re saying.”
The judge took several minutes to read through Powers’ written motion, which argued that Bloom might need to be called as a witness in the case because Bloom had drafted the town’s guidelines about Roberts Rules usage and advised town officials about their application.
The judge addressed Powers: “Are you saying that as a taxpayer of the town you have an interest in saying whether the legal advice the attorney gives the town is correct?”
He then added, “You overstate the ability of taxpayers to get involved in the running of the town when they have not been elected by their fellow citizens.”
The judge cited attorney-client privilege and the need for town officials to rely on attorneys for advice, and also said that, “often” the interests of taxpayers and the town are in conflict. “I don’t think as a taxpayer you can invite yourself in to a relationship between town officials and their legal advisors.”
Powers argued back that the town counsel is the only person who has the information to “state the validity” of how important Roberts Rules is to the town. Presumably, then Powers should be granted, as a litigant rather than a taxpayer, the right to question that town counsel/town official relationship.
Again, Tobin pushed Powers to cite case law to back up his assertions about Roberts Rules of Order. It took Tobin at least three times of asking, ‘What statute?’ for Powers to cite section 7-1 of the CT General Statutes.
Tobin challenged Powers, saying section 7-1 pertains to Town Meetings–not Board of Selectmen meetings, which would require looking at the Town Charter. “What provision of the Town Charter covers this issue?” he asked Powers.
Tobin continued his line of questioning, pushing Powers to find references to state statutes or the town charter sections that would substantiate his argument, and explaining why each argument Powers put forth wasn’t substantiated by law.
Roberts Rules–Less to Do with Legality than Order
No argument Powers made would sway the judge.
“What you have is a guide for boards and commissions [that] suggests it has less to do with legality than–guess what–order. It just has to do with keeping procedures orderly. … They have to do with the orderly process, they are not the law itself,” Tobin said to Powers, later adding, “Roberts Rules has no legal effect unless there’s a law that says it has to be followed and your argument doesn’t have legal foundation.”
Powers continued to try to argue his case, even interrupting the judge two to three times–something Tobin commented on. Powers apologized and tried to cede back the floor to the judge, but the judge curtly told him to continue. “Finish with your interruption.”
The next argument Powers made seemed to irk Tobin even more. Powers suggested that he had asked the town for information under a FOIA request and was only sent the town’s Guide, implying perhaps more information was withheld.
This didn’t sit well with Tobin, who challenged Powers on the claim:
“You’re admitted to the bar in the state, and you’re going to do your legal research by asking FOIA requests instead of looking at the law yourself?”
Powers’ answer wasn’t satisfactory, judging by Tobin’s next remark.
“I understand what you’re saying but when I challenged you to show me a state law that indicates a violation of Roberts Rules of Order to render an action null and void, for anything in the Town Charter, we got to the dead end. I know it’s something you would like to have but you can’t find anything to support because it’s not in the law.”
Tobin added, “In this case you’re not claiming FOIA violation, you’re claiming Roberts Rules of Order violation, and despite my repeated request to you to show authority–either legislative [or charter]–but I don’t think you’ve shown any legislative authority either at the state level or municipal level.”
With that Tobin granted the Town’s motion to dismiss the case completely.
Intent to Appeal
On his way out of the courtroom, Powers told GOOD Morning Wilton that he intends to appeal the decision.
“It’s going to be appealed. I respect the judge’s opinion–however it was flawed.” And with that said, he exited the courtroom.
First Selectwoman Lynne Vanderslice issued the following statement in the afternoon, following the ruling:
“We always expected the judge would dismiss Mr. Powers’ lawsuit. What was of particular note is that the judge did so at the hearing itself. That is unusual and speaks to the absolute lack of merit of the allegations.
“The Town of Wilton has been forced to spend taxpayer dollars on this frivolous lawsuit–tax dollars which otherwise would have been spent on the necessary work of our town government. I hope Mr. Powers will reconsider today’s threat to file an appeal. I also hope the voters who supported him at the polls will join me in encouraging him to reconsider and thus not continue to further waste taxpayer dollars.”