Officials Issue ‘Legal Opinion’ on Sensible Wilton Petition, Still Saying ‘No Revote’

Following Sensible Wilton‘s strong push to gather petition signatures on Election Day, town leaders have officially responded to the citizen group’s efforts to get a revote on the Miller-Driscoll bonded renovation project. Late Thursday night, Nov. 6, Wilton’s first selectman Bill Brennan emailed local media, forwarding the legal opinion formulated by Kenneth Bernhard, Wilton’s town counsel, regarding Sensible Wilton’s petition drive.

In addition, Brennan distributed a second 3,000-word document, labeled as an “internal memorandum” from Bernhard to the members of the Board of Selectmen. It explains in detailed legal language with case citations why Bernhard believes the Town Charter does not permit a petition for a revote on a bond authorization.

Bernhard writes that the Charter, “…does not grant the authority to petition for a revote on a bond authorization that was previously approved by the Town Meeting. Neither the margin by which a vote passes, nor the fact that the validity of the vote is being challenged by other means, is relevant to the proper interpretation of the Charter.”

According to Bernhard’s legal opinion, he explains the reasons why he disagrees with Sensible Wilton’s interpretation of the Town Charter.

He acknowledges that while a petition may be used in some instances under the charter, it cannot be used for this kind of bonding vote.

“Ultimately, the power of initiative is an important right granted by the Charter, but it is not unlimited in scope. The Charter simply does not permit revote petitions each and every time any measure passes, regardless of the margin of victory, and regardless of whether the validity of the vote is being challenged by other means. At this time, the approval of the Miller-Driscoll renovation project represents a valid and binding decision of the Wilton electorate made pursuant to law,” he writes.

Both the summary of the legal opinion and the longer internal memorandum are reprinted, below.

Town of Wilton Legal Opinion on Authority to Petition for a Revote on a Bond Authorization–Summary

The Town Attorney disagrees with Sensible Wilton’s interpretation of the Town Charter for the following reasons.

Section C-9 B (1) of the Town Charter intentionally excludes bond authorizations from the list of permitted items or proposals that may be considered through the power of initiative. Although Sensible Wilton now claims not to be proceeding under section C-9 B (1), it is instructive that the provision references five specific items or proposals that may be sought via the power of initiative; see sections C-6 A (3) – (7); but excludes the provision pertaining to bond authorizations exceeding one year in term, section C-6 A (2). This can only be viewed as an intentional exclusion. See Commissioner of Public Safety v. Freedom of Information Commission, 312 Conn. 513, 529 (2014) (stating rule of construction that expression of one thing is exclusion of another). If the Charter intended to allow such bond authorizations to be proposed through the power of initiative, section C-6 A (2) could have been expressly included in the items and proposals referenced in section C-9 B (1). Indeed, this is the only plausible reading, as section C-33 A of the Charter provides that “[t]he Board of Selectman, and only the Board of Selectmen, shall have the power to propose the issuance of bonds to the Town Meeting.”

Section C-9 B (4) does not grant the authority to petition for a revote on a bond authorization. This section is not so broad as to allow electors to petition for any and all legislative action. This is demonstrated by the fact that, as previously stated, the Charter does not allow the electors of Wilton to propose the issuance of bonds to the Town Meeting. But Sensible Wilton is not proposing the issuance of a bond – it is attempting to invalidate a previous bond authorization. Thus, the more salient question is whether section C-9 B (4) is a mechanism for citizens who disagree with the result of a vote to petition for a “second bite at the apple.” It is not. Otherwise, a relatively small number of electors could cause a revote of any proposal – even those which have been validly approved by a sufficient number of voting electors. In fact, there does not seem to be a Charter provision prohibiting yet another petition for another revote if the same proposal is approved again after the first revote, and so on. This is not a valid interpretation of section C-9 B (4).

To be sure, the Charter does permit petitions to amend or repeal existing ordinances; section C-9 B (2); or “[t]o overrule any legislative action of the Board of Selectman.” Section C-9 B (3). But in those provisions, the Charter intentionally uses words such as “amendment,” “repeal,” and “overrule.” This is not the case with section C-9 B (4), which only uses the word “propose.” If the drafters of the Charter intended to permit petitioners to amend, repeal, or overrule any and all legislative actions, including those already directly voted upon by the electors, they could have done so expressly. See Marchesi v. Board of Selectmen, 309 Conn. 608, 618 (2013) (“it is a well settled principle of statutory construction that the legislature knows how to convey its intent expressly . . . or to use broader or limiting terms when it chooses to do so”).

Ultimately, the power of initiative is an important right granted by the Charter, but it is not unlimited in scope. The Charter simply does not permit revote petitions each and every time any measure passes, regardless of the margin of victory, and regardless of whether the validity of the vote is being challenged by other means. At this time, the approval of the Miller-Driscoll renovation project represents a valid and binding decision of the Wilton electorate made pursuant to law.

 

INTEROFFICE MEMORANDUM

TO:                 Wilton Board of Selectmen

FROM:           Ken Bernhard, Town Attorney.

RE:                  Proposed Revote on Miller-Driscoll Renovation Project

DATE:            November 4, 2014

QUESTION

Does the Wilton Town Charter permit the use of the power of initiative to petition for a revote on a bond authorization that was previously approved by the Town Meeting?

SHORT ANSWER

No. The Town Charter does not contemplate the use of the power of initiative to demand a revote of a bond authorization that was already duly approved by the Town Meeting.

ANALYSIS

The question of whether voters may petition for a revote of a bond authorization must be addressed by referring to Article III of the Town Charter, which governs the powers and duties of the Town Meeting as a legislative body. Section C-5 A provides that the powers of the Town are vested in and exercised by the Town Meeting except as otherwise allocated by the Charter, General Statutes, applicable Special Acts, or Town ordinances. Section C-6 A provides that the legislative body of the Town is the Town Meeting with respect to ten enumerated circumstances, and § C-6 B provides that the Board of Selectmen is the legislative body in all other matters.

Section C-7 governs the call and notice of meetings of the Town Meeting. Subsection A requires that all meetings of the Town Meeting be called by the Board of Selectmen, and requires the Board of Selectmen to fix the date of every meeting. Subsection B sets the rules for noticing such a meeting, and sets forth the required contents of the notice. The Charter also permits the Board of Selectman to call a “Special Town Meeting,” which is defined as “[a] meeting of the Town Meeting called at the discretion of the Selectmen or pursuant to § C-9.” Article I, § C-1 C. Section C-9 A (2) specifically permits the Board of Selectmen to call a Special Town Meeting if they deem it “necessary or desirable.”

In addition to the power of the Board of Selectman to call a Special Town Meeting at its discretion, § C 9 A of the Charter provides that “[t]he Board of Selectmen shall call a Special Town Meeting whenever: (1) It is requested to do so by petition signed by at least 2% of the electors of the Town and filed with the Town Clerk pursuant to Subsection C below . . . .” Subsection C refers to this as the “power of initiative,” and sets forth procedural requirements concerning how it must be implemented.

The primary provision at issue is § C 9 B,[1] which provides as follows: “B. The electors of the Town shall have the power of initiative to call a Special Town Meeting pursuant to Subsection C . . . (1) To consider any item or proposal permitted under § C-6 A (3) through (7); (2) To consider a proposed ordinance, an amendment to an existing ordinance or a proposal to repeal an existing ordinance; (3) To overrule any legislative action of the Board of Selectmen; or (4) To propose any other legislative action.” Seeing no evidence to the contrary, this must be considered an exhaustive list of reasons for which a Special Town Meeting may be compelled via the power of initiative. Commissioner of Environmental Protection v. Mellon, 286 Conn. 687, 693, 945 A.2d 464 (2008) (unless there is contrary evidence, statutory itemization indicates that legislature intended given list to be exclusive). Thus, resolution of the present issue depends on the proper interpretation of § C 9 B.

“In construing a [town] charter, the rules of statutory construction generally apply.” (Internal quotation marks omitted.) Stamford Ridgeway Associates v. Board of Education, 214 Conn. 407, 423, 572 A.2d 951 (1990). In the realm of statutory construction, “[the] fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In seeking to determine [the] meaning [of a statute], General Statutes § 1-2z directs [the court] first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.” (Internal quotation marks omitted.) Saunders v. Firtel, 293 Conn. 515, 525, 978 A.2d 487 (2009).

“A [town] charter must be construed, if possible, so as reasonably to promote its ultimate purpose. . . . In arriving at the intention of the framers of the charter the whole and every part of the instrument must be taken and compared together. In other words, effect should be given, if possible, to every section, paragraph, sentence, clause and word in the instrument and related laws. The real intention when once accurately and indubitably ascertained, will prevail over the literal sense of the terms. When the words used are explicit, they are to govern, of course. If not, then recourse is had to the context, the occasion and necessity of the provision, the mischief felt, and the remedy in view. The language employed must be given its plain and obvious meaning, and, if the language is not ambiguous a court cannot arbitrarily add to or subtract from the words employed.” (Citation omitted; internal quotation marks omitted.) Stamford Ridgeway Associates v. Board of Education, supra, 214 Conn. 423-24.

In addressing the scope of the power of initiative, it is necessary to consider the plain meaning of the relevant Charter provisions along with their relationship to one another. Since the present issue does not involve an ordinance or a legislative action of the Board of Selectman; see §§ C-9 B (2) and (3); the authority to petition for a revote via the power of initiative must be found within § C-9 B (1) or § C-9 B (4).

Section C-9 B (1) lists five permitted items or proposals that may be considered through the power of initiative. See §§ C-6 A (3) through (7). Excluded from such items and proposals, however, is the provision pertaining to bond authorizations exceeding one year in term, § C-6 A (2). The exclusion of § C-6 A (2), which immediately precedes five included items and proposals, is presumed to be intentional. See Commissioner of Public Safety v. Freedom of Information Commission, 312 Conn. 513, 529 (2014) (stating rule of construction that expression of one thing is exclusion of another). If the Charter intended to allow such bond authorizations to be proposed through the power of initiative, § C-6 A (2) could have been expressly included in the items and proposals referenced in section C-9 B (1). See Marchesi v. Board of Selectmen, 309 Conn. 608, 618, 72 A.3d 394 (2013) (“it is a well settled principle of statutory construction that the legislature knows how to convey its intent expressly . . . or to use broader or limiting terms when it chooses to do so” [internal quotation marks omitted]).

Moreover, § C-33 A, which establishes bonding procedures, provides that “[t]he Board of Selectman, and only the Board of Selectmen, shall have the power to propose the issuance of bonds to the Town Meeting.” If § C-9 B (1) is construed to permit bonds to be proposed by petition, it would conflict with § C-33A. Interpretations that create discord, rather than harmony, are generally disfavored. Sokaitis v. Bakaysa, 293 Conn. 17, 23, 975 A.2d 51 (2009). Instead, “[t]he legislature is always presumed to have created a harmonious and consistent body of law . . . . [T]his tenet of statutory construction . . . requires [courts] to read statutes together when they relate to the same subject matter . . . . Accordingly, [i]n determining the meaning of a statute . . . [courts] look not only at the provision at issue, but also to the broader . . . scheme to ensure the coherency of our construction.” (Internal quotation marks omitted.) Id., 23. Thus, § C-9 B (1) does not permit bond authorizations to be proposed via the power of initiative, but only through the Board of Selectman using the procedures set forth in § C-33.

The only remaining provision that could authorize a revote petition on a bond authorization is § C-9 B (4). On its face, this provision permits the use of the power of initiative “[t]o propose any other legislative action.” The use of this seemingly broad language is peculiar, however, given that the preceding provisions of §§ C-9 B (1) through (3) are fairly specific about what ends may be accomplished via the power of initiative. Read broadly, §C-9 B (4) renders the power of initiative virtually unlimited in scope. Nevertheless, for the following reasons, such a broad interpretation not warranted in this case.

While the Connecticut Supreme Court has stated in one case that “any” is too comprehensive a word to receive a narrow construction; New York, N.H. & H.R. Co. v. Stevens, 81 Conn. 16, 21, 69 A. 1052 (1908); the Court has also more recently stated that “[t]he word ‘any’ has a diversity of meanings and may be employed to indicate ‘all’ or ‘every’ as well as ‘some’ or ‘one.’ Its meaning in a given [provision] depends upon the context and subject matter of the statute.” (Internal quotation marks omitted.) Stamford Ridgeway Associates v. Board of Education, supra, 214 Conn. 428. In Stamford Ridgeway Associates, the Court was called upon to interpret a zoning provision in a city charter which used the phrase “in any proposed amendment.” Id., 430. Rather than interpreting the word “any” broadly, the Court held that a more narrow construction was the only reasonable and rational one, and served to effectuate the ultimate purpose of the charter. Id. Similarly, the use of the word “any” in this case is not conclusive proof that an all-encompassing construction of the phrase “[t]o propose any other legislative action” is necessary or even reasonable.

The language of §§ C-9 B (2) and (3) further supports a more narrow construction of § C-9 B (4). Section C-9 B (2) permits the use of the power of initiative “[t]o consider a proposed ordinance, an amendment to an existing ordinance or a proposal to repeal an existing ordinance.” Section C-9 B (3) permits the use of the power of initiative “[t]o overrule any legislative action of the Board of Selectmen.” In those provisions, the Charter uses the words “amendment,” “repeal,” and “overrule” to describe actions the Town Meeting can take following a successful petition. In contrast, § C-9 B (4) uses only the word “propose.”

“It is a familiar principle of statutory construction that where the same words are used in a statute two or more times they will ordinarily be given the same meaning in each instance.” (Internal quotation marks omitted.) Stamford Ridgeway Associates v. Board of Education, supra, 214 Conn. 431. Additionally, “[w]here a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject . . . is significant to show that a different intention existed.” (Internal quotation marks omitted.) Hatt v. Burlington Coat Factory, 263 Conn. 279, 310, 819 A.2d 260 (2003). In the present matter, if the drafters of the Wilton Charter intended to permit petitioners to amend, repeal, or overrule particular legislative actions, including those already directly voted upon by the electors, they could have done so expressly, using the same language. Instead, the drafters used only the word “propose,” unaccompanied by other more specific words used in the preceding two subparts. Although “propose” is generally used in a fairly broad sense, as in the phrase “propose a revote,” the fact that the Charter differentiates between that word and a narrower word such as “amendment” implies that such a broad construction is not necessarily required. Compare Black’s Law Dictionary (9th Ed. 2009) (defining “proposal” as: “Something offered for consideration or acceptance”) with Stamford Ridgeway Associates v. Board of Education, supra, 214 Conn. 425 (interpreting “amendment” as “effecting a change in existing law”). Consequently, it is reasonable to interpret “propose,” as used in § C-9 B (4), as excluding situations in which the petition seeks to amend, repeal, or overrule legislative actions not expressly permitted by §§ C-9 B (1) through (3).

The intentional exclusion of bond authorizations from § C-9 B (1) is also instructive. “It is . . . a well-settled principle of construction that specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling.” (Internal quotation marks omitted.) Lagueux v. Leonardi, 148 Conn. App. 234, 242, 85 A.3d 13 (2014). The Charter’s exclusion of bond authorizations is more specific than the broader language used in § C-9 B (4), and therefore “[t]o propose any other legislative action” does not override the exclusion of bond authorizations from the purview of actions which can be initiated via the power of initiative.

This intentional exclusion is not conclusive, however, because a revote on a previous bond authorization is not strictly the same as the initial issuance of a bond. Nevertheless, a reading of § C-9 as a whole reveals that it is not intended to be unlimited in scope. Although the power of initiative is an important right granted by the Charter, it is not a mechanism for citizens who disagree with the result of a valid vote to petition for a second chance on the same precise issue already voted upon by the electors. If this were the case, a relatively small number of electors could cause a revote of acts that were already validly approved by the Town Meeting. Those in the minority of a Town Meeting or Special Town Meeting vote would have a strong incentive to immediately petition for a revote in every case involving a close vote, and it would only take a small number of those in the minority to win a new vote. Interpreting § C-9 B (4) too broadly leads to such unreasonable and inefficient results, and therefore must be avoided. See Stamford Ridgeway Associates v. Board of Education, supra, 214 Conn. 429 (“[t]he unreasonableness of the result obtained by the acceptance of one possible alternative interpretation of an act is a reason for rejecting that interpretation in favor of another which would provide a result that is . . . reasonable”).[2]

Finally, although not necessarily relying on charter interpretation, cases in other jurisdictions have reached similar results. In Custer City v. Robinson, 108 N.W.2d 211, 212 (S.D. 1961), for example, the Supreme Court of South Dakota was called upon to address the propriety of a petition requesting submission to electors of a city on an action previously taken by the voters of a city authorizing issuance of bonds for the construction of a municipal hospital. The court held that there is no general right of electors to rescind by another vote action previously taken authorizing the issuance of bonds. Id., 213-14. The court further noted that “authorities . . . support [the] contention that the Legislature did not intend to set up a machinery through which the electors might reconsider at a referendum election that which they had previously approved at a bond election.” (Internal quotation marks omitted.) Id., 213. Quoting from 64 C.J.S. Municipal Corporations § 1929, the court further stated that “a proposition to issue bonds which has been adopted by the voters ordinarily cannot be resubmitted in the absence of statutory authority.” (Internal quotation marks omitted.) Id., 213.

For all of the foregoing reasons, C-9 B (4) does not grant the authority to petition for a revote on a bond authorization that was previously approved by the Town Meeting. Neither the margin by which a vote passes, nor the fact that the validity of the vote is being challenged by other means, is relevant to the proper interpretation of the Charter.

[1] Section C-9 B is not explicitly referenced by §§ C-9 A or C, but by its plain language, it refers to the “power of initiative,” and therefore must be given effect as limiting or modifying that power. Doe v. Norwich Roman Catholic Diocesan Corp., 279 Conn. 207, 216-17, 901 A.2d. 673 (2006) (interpretations rendering provision superfluous should be avoided).

[2] Further, the Charter does not expressly prohibit a petition to hold a second revote on the same issue. However, because § C-6 A (10) is not included in the C-9 B (1) list of items or proposals for which a Special Town Meeting may be compelled, the Charter could be interpreted to allow only one revote petition. But even if the latter interpretation prevails, a two petition rule is not substantially more reasonable than an unlimited petition rule.

1 COMMENT

  1. This is an incorrect interpretation of the Charter.
    The Charter provides for citizen initiatives as Bernard acknowledges.
    The petition does not seek new bonding action as Bernard infers and cites.
    The petition seeks a re-vote of a Chartered town initiated bonding proposal.
    The remote is simply intended to redress known and Town employee acknowledged violations of the law.
    These violations are numerous and varied and in some instances indicate behavior that violates the law.
    The rule of law is an essential ingredient in our democracy.
    Deliberate or unintentional violations of the law certainly trust in those elected by we the people.
    Government overreach in their collective responsibilities are cause for considerable concern.
    The elected Town Boards would be foolish to resist voter initiatives under these very glaring exceptions.
    Town Board stubborn resistance to legal voter initiatives reinforces public perception that something is seriously wrong.

    Why are they so fearful of a re-vote?

    Casual dismissal of citizen concerns will have consequences at subsequent Town Meetings/votes.

    Having said this, I believe it is important for the Town to avoid a legal battle and associated costs by simply calling a re-vote so that all citizens may be able to voice their opinion now that the facts have become public.

    This would be a legal, sensible, old fashioned,neighborly, good old New England way to conduct government affairs.

    Ed Papp

Comments are closed.