Arras v. Regional School District No. 14 ( 2015 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
THOMAS ARRAS ET AL. v. REGIONAL SCHOOL
DISTRICT NUMBER 14 ET AL.
(SC 19442)
Rogers, C. J., and Palmer, Zarella, Eveleigh, Espinosa, Robinson and
Vertefeuille, Js.
Argued May 19—officially released October 20, 2015
Deborah G. Stevenson, for the appellants (plaintiffs).
Mark J. Sommaruga, with whom were William Ste-
vens, 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 curiae.
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 10-47c2 and 9-2263 requiring towns to publish warn-
ing 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 referen-
dum results. The plaintiffs4 brought this action against
the defendants5 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 defen-
dants 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
evidence that their failure to properly warn of the refer-
endum had affected the vote. Accordingly, the trial
court denied the plaintiffs’ motion for summary judg-
ment, granted the defendants’ motions for summary
judgment and rendered judgment for the defendants.
The plaintiffs appeal6 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 provi-
sions was inherently prejudicial. We affirm the judg-
ment 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 Non-
newaug 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 authori-
zation 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 autho-
rize 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
document entitled ‘‘Voting Machine Information’’ set-
ting 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
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 refer-
endum 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-Mid-
dlebury 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 publi-
cize 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 Bethle-
hem 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
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 pursu-
ant 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 referen-
dum results were valid and the issuance of a writ of
mandamus ordering the respective town clerks to cer-
tify 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
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 seek-
ing to consolidate the two cases. They refused, how-
ever, 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
with the statutes had affected the outcome of the refer-
endum vote. Accordingly, the trial court granted the
defendants’ motions for summary judgment and ren-
dered judgment for the defendants.
This appeal followed.14 The plaintiffs claim on appeal
that the trial court improperly rendered summary judg-
ment for the defendants15 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
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 sum-
mary 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 sum-
mary judgment shall be rendered forthwith if the plead-
ings, affidavits and any other proof submitted show that
there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter
of law. In deciding a motion for summary judgment,
the trial court must view the evidence in the light most
favorable to the nonmoving party. . . . The party mov-
ing for summary judgment has the burden of showing
the absence of any genuine issue of material fact and
that the party is, therefore, entitled to judgment as a
matter of law. . . . Our review of the trial court’s deci-
sion to grant the defendant’s motion for summary judg-
ment is plenary.’’ (Internal quotation marks omitted.)
Rocco v. Garrison, 268 Conn. 541, 548–49, 848 A.2d
352 (2004).
Before addressing the merits of the plaintiffs’ claims,
we set forth the general principles governing our limited
review of claims involving the validity of election
results. ‘‘First, under our democratic form of govern-
ment, an election is the paradigm of the democratic
process designed to ascertain and implement the will
of the people. . . . The purpose of the election statutes
is to ensure the true and most accurate count possible
of the votes for the candidates in the election [or, as
in the present case, for a particular referendum result].
. . . Those statutes rest on the bedrock principle that
the purpose of the voting process is to ascertain the
intent of the voters. . . . In implementing that process,
moreover, when an individual ballot is questioned, no
voter is to be disfranchised on a doubtful construction,
and statutes tending to limit the exercise of the ballot
should be liberally construed in his [or her] favor. . . .
Our election laws, moreover, generally vest the primary
responsibility for ascertaining that intent and will on
the election officials, subject, of course, to the court’s
appropriate scope of review when the officials’ determi-
nation is challenged in a judicial proceeding. . . . We
look, therefore, first and foremost to the election offi-
cials to manage the election process so that the will of
the people is carried out.’’ (Citations omitted; internal
quotation marks omitted.) Bortner v. Woodbridge, 250
Conn. 241, 254, 736 A.2d 104 (1999). ‘‘Second . . . [t]he
delicacy of judicial intrusion into the electoral process
. . . strongly suggests caution in undertaking such an
intrusion.’’ (Citation omitted; internal quotation marks
omitted.) Id.
‘‘An election is essentially—and necessarily—a snap-
shot. It is preceded by a particular election campaign,
for a particular period of time, which culminates on a
particular date, namely, the officially designated elec-
tion day. In that campaign, the various parties and candi-
dates presumably concentrate their resources—
financial, political and personal—on producing a vic-
tory on that date. When that date comes, the election
records the votes of those electors, and only those elec-
tors, who were available to and took the opportunity
to vote—whether by machine lever, write-in or absentee
ballot—on that particular day. Those electors, more-
over, ordinarily are motivated by a complex combina-
tion of personal and political factors that may result in
particular combinations of votes for the various candi-
dates [or, as in the present case, for or against a referen-
dum question] . . . .
‘‘The snapshot captures, therefore, only the results
of the election conducted on the officially designated
election day. It reflects the will of the people as recorded
on that particular day, after that particular campaign,
and as expressed by the electors who voted on that
day. Those results, however, although in fact reflecting
the will of the people as expressed on that day and no
other, under our democratic electoral system operate
nonetheless to vest power in the elected candidates for
the duration of their terms [or, as in the present case, to
finally determine the will of the people on a referendum
question]. . . . No losing candidate [or group of per-
sons interested in a particular referendum result] is
entitled to the electoral equivalent of a mulligan.
‘‘Moreover, that snapshot can never be duplicated.
The campaign, the resources available for it, the totality
of the electors who voted in it, and their motivations,
inevitably will be different a second time around. Thus,
when a court orders a new election, it is really ordering
a different election. It is substituting a different snap-
shot of the electoral process from that taken by the
voting electorate on the officially designated election
day.
‘‘Consequently, all of the electors who voted at the
first, officially designated election . . . have a power-
ful interest in the stability of that election because the
ordering of a new and different election would result
in their election day disfranchisement. The ordering of
a new and different election in effect disfranchises all
of those who voted at the first election because their
validly cast votes no longer count, and the second elec-
tion can never duplicate the complex combination of
conditions under which they cast their ballots.
‘‘All of these reasons strongly suggest that, although
a court undoubtedly has the power to order a new
election . . . the court should exercise caution and
restraint in deciding whether to do so. A proper judicial
respect for the electoral process mandates no less.’’
(Emphasis in original; footnote omitted; internal quota-
tion marks omitted.) Id., 255–57. In light of these princi-
ples, this court concluded in Bortner that ‘‘in order for
a court to overturn the results of an election and order
a new election . . . the court must be persuaded that:
(1) there were substantial violations of the requirements
of the [governing statutes] . . . and (2) as a result of
those violations, the reliability of the result of the elec-
tion is seriously in doubt.’’ Id., 258.
With this background in mind, we turn to the plain-
tiffs’ claim in the present case that the trial court
improperly determined that the defendants’ failure to
strictly comply with the statutory notice provisions by
publishing an official warning of the referendum in the
newspapers did not require the invalidation of the refer-
endum. We begin our analysis with the language of the
governing statutes. Pursuant to § 10-56 (a), a referen-
dum on a regional school district’s issuance of bonds
‘‘shall be conducted in accordance with the procedure
provided in section 10-47c . . . .’’ Section 10-47c pro-
vides in relevant part that ‘‘[t]he warning of such refer-
enda shall be published . . . in the same manner as is
provided for the election of officers of a town.’’ Pursu-
ant to § 9-226, governing municipal elections, ‘‘[n]otice
of an election of a city or borough shall be given by
publishing a warning in a newspaper published within
the limits of such city or borough, or having a general
circulation therein, not more than fifteen nor less than
five days previous to holding the election, which warn-
ing shall include notice of the time and the location of
the polling place in such city or borough and, in cities
and boroughs divided into voting districts, of the time
and the location of the polling place in each district.’’
The plaintiffs contend that these statutes are manda-
tory and, therefore, the defendants’ failure to strictly
comply with them by publishing a warning in the legal
notice section of a newspaper of general circulation
rendered the referendum invalid. Cf. Santiago v. State,
261 Conn. 533, 543, 804 A.2d 801 (2002) (general rule
requires strict compliance with mandatory statutory
provisions); State ex rel. Barnard v. Ambrogio, 162
Conn. 491, 502, 294 A.2d 529 (1972) (agency’s failure
to comply with mandatory statutory provision renders
agency’s action invalid). This court held in Bortner,
however, that the mere failure to comply with a statute
governing a part of the election process does not auto-
matically render the election invalid. See Bortner v.
Woodbridge, supra, 250 Conn. 258 (‘‘in order for a court
to overturn the results of an election and order a new
election . . . the court must be persuaded that: [1]
there were substantial violations of the requirements
of the [governing statutes] . . . and [2] as a result of
those violations, the reliability of the result of the elec-
tion is seriously in doubt’’ [emphasis added]); see also
Caruso v. Bridgeport, 285 Conn. 618, 652, 941 A.2d 266
(2008) (even assuming validity of plaintiff’s allegations
that registrar of voters, poll workers and campaign
workers had violated mandatory election statutes gov-
erning staffing of polling places, court was not required
to order new election when plaintiff failed to prove
that effect of violations ‘‘was to place the result of the
election seriously in doubt’’ [emphasis in original]);
Caruso v. Bridgeport, supra, 653 (‘‘proof of irregulari-
ties in the [election] process is not sufficient to overturn
an election in the absence of proof that any of the
irregularities actually affected the result’’).
We recognize that Bortner and Caruso involved stat-
utes that are not at issue in the present case. Specifi-
cally, Bortner involved General Statutes § 9-328,
governing contests in elections for municipal officers,
and this court’s conclusion that strict compliance with
election statutes was not required was based in part
on the genealogy and legislative history of that statute.
See Bortner v. Woodbridge, supra, 250 Conn. 260–63.
Caruso involved General Statutes § 9-329a, governing
contests in connection with primary elections. We note,
however, that the language of General Statutes § 9-371b,
governing complaints directed at the rulings of election
officials in referenda, closely tracks the language of
§§ 9-328 and 9-329a.17 Moreover, § 9-371b was enacted
in 2004; see Public Acts 2004, No. 04-117, § 4; after this
court’s decision in Bortner construing the provisions
of § 9-329 was published. ‘‘The legislature is presumed
to be aware of the interpretation which the courts have
placed upon one of its legislative enactments . . . .’’
(Internal quotation marks omitted.) Hall v. Gilbert &
Bennett Mfg. Co., 241 Conn. 282, 297–98, 695 A.2d 1051
(1997). Accordingly, it is reasonable to conclude that,
by using language in § 9-371b that is similar to the lan-
guage of § 9-329, the legislature intended that § 9-371b
would be given a similar interpretation.18 Indeed, we
can perceive no reason why the ‘‘general principles
governing the judiciary’s limited role in elections’’;
Caruso v. Bridgeport, supra, 285 Conn. 637; as
described in Bortner, should not apply equally to refer-
enda.19 We therefore conclude that the failure to strictly
comply with the statutory notice provisions does not
automatically invalidate the result of a referendum con-
ducted pursuant to § 10-56 (a). Rather, a referendum
may be judicially invalidated only when: ‘‘(1) there were
substantial violations of the requirements of the [gov-
erning statutes] . . . and (2) as a result of those viola-
tions, the reliability of the result of the election is
seriously in doubt.’’ Bortner v. Woodbridge, supra, 258.
We recognize that, as the dissent points out, there is
authority from other jurisdictions to support the propo-
sitions that statutory notice provisions for special elec-
tions are more strictly applied than those for general
elections,20 and, at least when there has been a complete
failure to comply with a statutory notice provision for
a special election, actual notice cannot cure the non-
compliance.21 Several cases on which the dissent relies,
however, predate the advent of television, not to men-
tion robocalling, mass public signage, mass mailings,
the Internet and e-mail. Thus, these cases were decided
at a time when it could be safely presumed that the
officially prescribed notice was the primary, and per-
haps the only, means by which voters could learn about
elections, particularly special elections that are not held
on a regularly scheduled basis. While we do not deny
that, even today, there is a difference between a referen-
dum and a regularly scheduled general election with
respect to presumed notice, a referendum, no less than
a general election for public officials, is a snapshot in
time, and invalidation of the results will disenfranchise
the voters who contributed to that snapshot by cam-
paigning and voting for a particular result. Accordingly,
the general democratic principles militating in favor
of limited judicial intervention in elections unless the
noncompliance with governing statutes placed the
result of the election seriously in doubt should apply
equally to referenda. Moreover, although the difference
between special elections and general elections might
justify applying different evidentiary standards to the
two proceedings,22 we can perceive no reason why the
difference would justify depriving the relevant govern-
ment officials of the power to conduct a special election
when they have failed to comply with statutory notice
provisions, which is essentially what the dissent is con-
tending.
The dissent also contends that a conclusion that
actual notice is sufficient to cure a total failure to com-
ply with the statutory notice provisions usurps the role
of the legislature, rewrites the governing statutes and
violates fundamental democratic principles. The dis-
sent does not dispute, however, that, when there has
been only partial compliance with a statutory notice
provision for a referendum, the reliability of a referen-
dum result is the touchstone by which we should deter-
mine its validity, not whether there was technical
compliance with governing statutes. Nor does the dis-
sent dispute that this standard has its basis in the funda-
mental democratic principles underlying the election
process. See 26 Am. Jur. 2d 82, Elections § 280 (2014)
(‘‘courts are reluctant to defeat a fair expression of the
popular will in either a general or special election’’).
Accordingly, we can perceive no reason why automatic
invalidation of a referendum should be required when
there was no compliance with the statutory notice pro-
visions, where, as in the present case, the evidence
establishes that the voters had actual notice of the refer-
endum and strict compliance would not have affected
the outcome. Such a conclusion would be hypertechni-
cal, and would exalt form over substance.23 Of course,
we strongly encourage public officials to comply fully
with all statutes governing elections and referenda, not
only because they have a duty to submit to the legisla-
ture’s constitutional authority to determine how elec-
tions will be conducted, but also to foreclose even the
possibility that the results of the referendum or election
will be judicially invalidated and to avoid the cost and
inconvenience of defending actions like the present
one. For the reasons that we have explained, however,
we cannot conclude that the failure to comply fully
with statutory notice provisions automatically invali-
dates the result. If the legislature disagrees with this
conclusion, nothing prevents it from making its inten-
tion clear. See id., § 277, p. 80 (‘‘[a] failure to comply
with statutory-notice requirements will invalidate an
election which has already been held only if it appears
that it prevented the electors from obtaining a free and
full expression of their will at the election or if the
statute contains a further provision voiding an elec-
tion not held in accordance therewith’’ [emphasis
added]).
In support of their claim that strict compliance with
the statutory notice provisions for elections is required,
the plaintiffs rely on the decision of the United States
Supreme Court in Bloomfield v. Charter Oak Bank, 121
U.S. 121, 7 S. Ct. 865, 30 L. Ed. 923 (1887). Specifically,
the plaintiffs rely on the court’s statement that ‘‘[a] town
cannot make a contract, or authorize any officer or
agent to make one in its behalf, except by vote in a
town meeting duly notified or warned; and the notice
or warning must specify the matter to be acted on, in
order that all the inhabitants . . . may know in
advance what business is to be transacted at the meet-
ing. If the subject of the vote is not specified in the
notice or warning, the vote has no legal effect, and
binds neither the town nor the inhabitants. No one can
rely upon a vote as giving him any rights against the
town, without proving a sufficient notice or warning of
the meeting at which the vote was passed.’’ Id., 129–30.
The plaintiffs contend that this language supports their
position that the failure to provide the statutorily
required warning for a referendum automatically ren-
ders the referendum results null and void. As the defen-
dants point out, however, this court has held that a
town meeting and a referendum are entirely distinct
decision-making mechanisms. Sadlowski v. Manches-
ter, 206 Conn. 579, 590, 538 A.2d 1052 (1988) (‘‘[f]or us
to imply such an equivalence [between town meetings
and referenda] would fly in the face of reality’’); id. (‘‘a
referendum in which individual voters cast individual
ballots in individual voting booths does not constitute
a town meeting’’).24 Our limited role in reviewing chal-
lenges to the legality of the election process derives
in large part from the ‘‘magnitude and complexity’’ of
elections; Caruso v. Bridgeport, supra, 285 Conn. 653;
and from the important democratic values underlying
the essential and necessary nature of an election as a
‘‘snapshot’’ of ‘‘the will of the people as recorded on
[a] particular day, after [a] particular campaign, and
as expressed by the electors who voted on that day.’’
Bortner v. Woodbridge, supra, 250 Conn. 256. These
concerns carry far less weight with respect to town
meetings. Indeed, if a town meeting is conducted with-
out proper legal notice, it places no great burden on
the persons involved to publish proper notice and to
conduct another meeting. In contrast, when an election
or a referendum is invalidated, all of the enormous
effort and expense that went into the official planning
and public campaigns preceding the election or referen-
dum are lost, and the persons who voted at the first
election or referendum are disenfranchised. Accord-
ingly, the decision of the United States Supreme Court
in Bloomfield is of little persuasive value here.
The plaintiffs also rely on this court’s holding in State
v. Lenarz, 301 Conn. 417, 436–37, 22 A.3d 536 (2011),
cert. denied, U.S. , 132 S. Ct. 1095, 181 L. Ed.
2d 977 (2012), that, in a criminal case, the disclosure
to the prosecutor of defense materials containing infor-
mation subject to the attorney-client privilege is inher-
ently prejudicial.25 We observed in Lenarz, however,
both that (1) ‘‘[n]o severe definition of prejudice . . .
could accommodate the [broad] sixth amendment poli-
cies’’ underlying the right to be represented by counsel;
id., 434; and (2) that prejudice should be presumed
under these circumstances because ‘‘it is highly unlikely
that a court can . . . arrive at a certain conclusion as
to how the government’s knowledge of any part of the
defense strategy might benefit the government . . . .’’
(Internal quotation marks omitted.) Id., 435. In contrast,
in the present case, the democratic values underlying
the election process militate in favor of limited judicial
intervention in that process, and nothing prevented the
plaintiffs from attempting to establish actual prejudice
by identifying voters within the regional school district
who would have voted against the referendum question
if the referendum had been properly noticed, and sub-
mitting documentation to that effect in support of their
opposition to the defendants’ motion for summary judg-
ment.26 Accordingly, Lenarz has little application here.
Having rejected the plaintiffs’ claim that the defen-
dants’ failure to comply with the notice provisions of
the governing statutes automatically required the invali-
dation of the June 18, 2013 referendum, we turn to
the questions of whether: ‘‘(1) there were substantial
violations of the requirements of the [governing stat-
utes] . . . and (2) as a result of those violations, the
reliability of the result of the election is seriously in
doubt.’’ Bortner v. Woodbridge, supra, 250 Conn. 258.
Because it is dispositive, we first address the question
of whether the trial court properly determined that
there was no genuine issue of material fact as to
whether the results of the June 18, 2013 referendum
were seriously in doubt as the result of the defendants’
failure to properly warn the referendum pursuant to
the applicable statutes. The trial court concluded that,
in comparison with the actual efforts to publicize the
referendum, as previously described in this opinion,
compliance with the statutory notice requirement
‘‘would have been merely nominal . . . .’’ (Internal
quotation marks omitted.) In addition, the court noted
that ‘‘the referendum had a greater turnout than those
past referenda that took place with proper notice.’’27
(Internal quotation marks omitted.) Finally, the trial
court concluded that there was no evidence that ‘‘a
single vote was lost or affected by [the defendants’]
failure to publish a notice in strict compliance with
the statute.’’ (Internal quotation marks omitted.) The
plaintiffs do not dispute any of these conclusions, but
claim only that the defendants’ failure to properly warn
of the referendum in strict compliance with the applica-
ble statutes was prejudicial per se, a claim that we have
already rejected. Accordingly, we conclude that the
plaintiffs have failed to meet their burden of establish-
ing the existence of a genuine issue of material fact as
to whether the defendants’ failure to strictly comply
with the warning provisions of §§ 10-56 (a), 10-47c and
9-226 caused the referendum results to be seriously in
doubt.28 See Tuccio Development, Inc. v. Neumann, 114
Conn. App. 123, 126, 968 A.2d 956 (2009) (after party
who filed motion for summary judgment has established
that there is no genuine issue of material fact, ‘‘the
burden shifts to the party opposing such a motion [to]
provide an evidentiary foundation to demonstrate the
existence of a genuine issue of material fact’’ [internal
quotation marks omitted]); see also Caruso v. Bridge-
port, supra, 285 Conn. 652–53 (rejecting plaintiff’s claim
that irregularities in election process required new elec-
tion when plaintiff failed to established that irregulari-
ties ‘‘had resulted in an improper vote, the improper
counting of a vote or the improper failure to count a
vote’’); Caruso v. Bridgeport, supra, 653 (‘‘[U]nder our
system of government, the plaintiff bears the heavy
burden of proving by a preponderance of the evidence
that any irregularities in the election process actually,
and seriously, undermined the reliability of the election
results before the courts will overturn an election.
Although we are mindful of the difficulties that plaintiffs
face in meeting this burden in light of the statutory time
constraints on election contests and the magnitude and
complexity of the election process, our limited statutory
role in that process and our need to exercise great
caution when carrying out that role compel the conclu-
sion that proof of irregularities in the process is not
sufficient to overturn an election in the absence of
proof that any of the irregularities actually affected the
result.’’ [Emphasis in original.]).
In reaching this conclusion, we are mindful that the
referendum question passed by only four votes. As we
have already indicated herein, however, nothing pre-
vented the plaintiffs from attempting to prove actual
prejudice by identifying persons who would have voted
against the referendum if it had been properly noticed.
Indeed, unlike in Caruso, time constraints on the plain-
tiffs’ ability to investigate the prejudicial effect of the
defendants’ failure to comply with the applicable stat-
utes were not an issue here. There were approximately
eleven months between the date that the plaintiffs filed
their original complaint and the dates that the defen-
dants filed their motions for summary judgment during
which the plaintiffs could have conducted such an
investigation. We therefore conclude that the trial court
properly granted the defendants’ motions for sum-
mary judgment.
The judgment is affirmed.
In this opinion PALMER, EVELEIGH and ESPINOSA,
Js., concurred.
1
General Statutes § 10-56 (a) provides in relevant part: ‘‘A regional school
district shall be a body politic and corporate with power to sue and be sued;
to purchase, receive, hold and convey real and personal property for school
purposes; and to build, equip, purchase, rent, maintain or expand schools.
Such district may issue bonds, notes or other obligations in the name and
upon the full faith and credit of such district and the member towns to
acquire land, prepare sites, purchase or erect buildings and equip the same
for school purposes, if so authorized by referendum. Such referendum shall
be conducted in accordance with the procedure provided in section 10-
47c . . . .’’
2
General Statutes § 10-47c provides: ‘‘With the exception of the terms
which pertain to the capital contribution of member towns, the transfer of
property to the regional school district, the grades included, the size of the
board of education and the representation of each town on the board and
the towns to be served by the regional school district, the terms of the plan
approved through referenda pursuant to section 10-45 may be amended as
follows: If a regional board of education finds it advisable to amend the
plan or if the legislative body of a town served by the regional board of
education requests amendment of such plan, the regional board of education
shall prepare a report on the proposed amendment, including the question
to be presented, file a copy with the Commissioner of Education and the
clerk of each member town and make copies of such report available to
the public at a district meeting called to present the plan. After such public
hearing, the board shall set the date for referenda which shall be held
simultaneously in each member town between the hours of six a.m. and
eight p.m. At least thirty days before the date of the referenda, the regional
board of education shall notify the town clerk in each member town to call
the referendum on the specified date to vote on the specified question. The
warning of such referenda shall be published, the vote taken and the results
thereof canvassed and declared in the same manner as is provided for the
election of officers of a town. The town clerk of each town shall certify the
vote of the town to the regional board of education and the Commissioner
of Education. If the majority vote in each town of the district is in favor of
the proposed amendment to the plan, such amendment shall take effect
immediately.’’
3
General Statutes § 9-226, governing municipal elections, provides in rele-
vant part: ‘‘The town clerk in each town shall, in the warning for such
election, give notice of the time and the location of the polling place in the
town and, in towns divided into voting districts, of the time and the location
of the polling place in each district. The town clerk shall record each such
warning. Notice of an election of a city or borough shall be given by publish-
ing a warning in a newspaper published within the limits of such city or
borough, or having a general circulation therein, not more than fifteen nor
less than five days previous to holding the election, which warning shall
include notice of the time and the location of the polling place in such city
or borough and, in cities and boroughs divided into voting districts, of the
time and the location of the polling place in each district.’’
4
The plaintiffs are Thomas Arras, Sean Murphy and Gary Suslavich, who
are residents of the town of Woodbury, and Karen S. Miller and Peter T.
Miller, who are residents of the town of Bethlehem.
5
The defendants are Regional School District Number 14 (regional school
district); Jody Ian Goeler, the superintendent of schools for the regional
school district; the regional school district’s board of education; John Chap-
man, the chairman of the board of education; George Bauer, the former
chairman of the board of education; the town of Woodbury; the town of
Bethlehem; Gerald Stomski, first selectman of the town of Woodbury; and
Jeffrey Hamel, first selectman of the town of Bethlehem.
6
The plaintiffs appealed from the judgment of the trial court to the Appel-
late Court and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-2.
7
The text of the e-mail from the board of education to the town clerks
provided: ‘‘Good morning, Town Clerks,
‘‘The [b]oard of [e]ducation approved the ballot question and date of the
building referendum at a special meeting last evening. Minutes are attached
reflecting their actions and the ballot question is attached in the format
you require.
‘‘Please forward the ballot information to the registrars responsible for
having ballots printed, and please let us know when absentee ballots will
be available.
‘‘Your assistance with this effort is most appreciated,
‘‘Debra W. Carlton’’
8
After the failure to notice the referendum was brought to the attention
of the Woodbury town clerk, Linda Carlson, she sent an e-mail to various
persons involved in the matter stating that she had received no direction
to notice and warn the referendum and that the town clerk’s office ‘‘is ‘[a]
keeper of [r]ecords,’ we do not interpret [the board of education’s] meeting
minutes/motions.’’ The defendant, Jody Ian Goeler, the superintendent of
schools for the regional school district, had acknowledged in a previous
e-mail that, ‘‘inadvertently, the reminder letter [to publish a warning] was
not included with the ballot question and minutes calling for referendum’’
that had been sent to the town clerks.
9
The news release provided: ‘‘NOTICE
‘‘News Release—For Immediate Release—Reminder
‘‘Please Publish ASAP
‘‘Thank You
‘‘The Region[al] 14 School [D]istrict in the town of Woodbury will be
holding a referendum on whether the School District shall appropriate
$63,820,605 for renovation of and additions to Nonnewaug High School, and
authorize the issue of bonds and notes in the same amount to finance
the appropriation.
‘‘The referendum will be held on Tuesday, June 18, 2003, at the Woodbury
Senior/Community Center, 265 Main Street South in Woodbury. All registered
voters, as well as property taxpayers are eligible to vote in this referendum.
‘‘The polls will be open from [6] a.m. until [8] p.m.
‘‘Those seeking additional information may call the Registrar’s office . . .
or the Town Clerk’s office . . . .’’
10
The defendants also submitted evidence of other attempts to publicize
the referendum in support of their motions for summary judgment, including
publicized tours of the high school building, discussion of the renovations
and referendum at town board meetings and senior centers, the May 16,
2013 public hearing on the renovations that preceded the special meeting
at which the referendum was approved by resolution, and prominent signage
in the towns.
11
The operative complaint alleged numerous state statutory violations
(count one); various violations of the United States constitution (count two);
various violations of the Connecticut constitution (count three); ‘‘[a]buse
of [a]uthority’’ (count four); failure to provide proper legal notice of the
referendum in violation of various state statutes and in violation of their
civil rights under 42 U.S.C. § 1983 (count five); and violations of the Connecti-
cut Unfair Trade Practices Act, General Statutes § 42-110b et seq. (count
six). The plaintiffs also sought injunctive relief (count seven). The trial court
granted the defendants’ motion to strike the operative complaint as to counts
two, three, four and six, and the portion of count five alleging violations of
42 U.S.C. § 1983. In addition, the court granted the motion to strike as to
paragraphs thirty-nine through forty-three and forty-eight of the first count
containing the references to specific statutory violations. As a result, the
only surviving portions of the complaint were the allegations in count one
that the defendants had failed to provide proper legal notice of the referen-
dum, certain paragraphs in count five alleging statutory and constitutional
violations, and the request for injunctive relief in count seven. See footnote
25 of this opinion.
12
The plaintiffs contended that the Litchfield action was void ab initio
because the plaintiffs in that action had brought the action without the prior
approval of the boards of selectmen of the respective towns.
13
The following defendants; see footnote 5 of this opinion; filed a motion
for summary judgdment on June 10, 2014: the regional school district, Jody
Ian Goeler, George Bauer and John Chapman. The remaining defendants,
the towns of Woodbury and Bethlehem, Gerald Stomski, and Jeffrey Hamel
filed a motion for summary judgment on June 24, 2014.
14
After the appeal was filed, this court granted permission to the Connecti-
cut Association of Boards of Education to file an amicus curiae brief in
support of the defendants’ position.
15
As framed in their brief to this court, the plaintiffs’ claim is that the
trial court improperly denied their motion for summary judgment. The denial
of a motion for summary judgment, however, is not an appealable final
judgment. Hopkins v. O’Connor, 282 Conn. 821, 828, 925 A.2d 1030 (2007)
(‘‘[t]he denial of a motion for summary judgment ordinarily is an interlocu-
tory ruling and, accordingly, is not a final judgment for purposes of appeal’’).
Nevertheless, because all of the plaintiffs’ claims and arguments apply
equally to the trial court’s granting of the defendants’ motions for summary
judgment, and because the defendants make no claim that the plaintiffs’
claims are not reviewable, we reframe the plaintiffs’ claim as raising a
challenge to the court’s granting of the defendants’ motions for summary
judgment.
16
The plaintiffs also contend that: (1) the trial court improperly relied on
the reasoning of the trial court’s decision in the Litchfield action because,
according to the plaintiffs, the plaintiffs in the Litchfield action had no
authority to bring the action and, therefore, it was ‘‘void ab initio’’; and (2)
the defendants in the present case ‘‘waived’’ any claim that they were entitled
to summary judgment because they conceded that they had not complied
with the provision of § 10-47c requiring that ‘‘warning of [a] referenda shall
be published, the vote taken and the results thereof canvassed and declared
in the same manner as is provided for the election of officers of a town.’’
We note that the Appellate Court dismissed the plaintiffs’ appeal from the
judgment of the trial court in the Litchfield action, and the plaintiffs have
not challenged that ruling. Because the plaintiffs have cited no authority
for the proposition that the trial court in the present case was barred from
relying on the reasoning of the trial court’s decision in the Litchfield action,
which is not the subject of any appeal or proper collateral attack, or for
the proposition that the defendants in the present case waived all legal
claims that could be raised in their motions for summary judgment by
conceding an issue of material fact, we reject these claims. See Rocco v.
Garrison, 268 Conn. 541, 548, 848 A.2d 352 (2004) (‘‘[t]he party moving for
summary judgment has the burden of showing the absence of any genuine
issue of material fact and that the party is, therefore, entitled to judgment
as a matter of law’’ [emphasis added; internal quotation marks omitted]).
Indeed, if the defendants had disputed the plaintiffs’ factual claim that there
had been no proper legal notice of the referendum, there would have been
no basis for their claim in their motions for summary judgment that there
was no genuine issue of material fact.
17
The plaintiffs cited § 9-371b in the operative complaint. There is no
indication in the record before us, however, that the plaintiffs invoked the
notice or expedited hearing provisions of that statute. Rather, it appears
that the plaintiffs proceeded in accordance with General Statutes § 9-7b (a)
(9), which they also invoked in their complaint. See General Statutes § 9-
7b (a) (9) (authorizing ‘‘a person who claims that he is aggrieved by a
violation of any provision of chapter 152 or any other provision of the
general statutes relating to referenda [to pursue] injunctive and any other
ancillary equitable relief directly from the Superior Court by the filing of a
complaint’’). Nevertheless, the fact that the language of § 9-371b closely
tracks the language of other statutes governing election contests supports
the conclusion that the legislature intended that claims involving referenda
would be subject to the same substantive standards as claims involving
elections, regardless of the specific procedure by which such claims are
brought.
18
The legislative history of § 9-371b sheds no light on this question.
19
Other courts also have held that the failure to strictly comply with
the statutory notice requirement for an election or a referendum does not
invalidate the election if there is no evidence that the failure to provide
proper legal notice affected the result. See Henard v. St. Francis Election
Committee, 301 Ark. 459, 461–62, 784 S.W.2d 598 (1990) (‘‘[T]he failure to
publish notice of an election is immaterial if the election is actually held
and the electors have not been deprived of the opportunity to express
themselves. [T]he voice of the people is not to be rejected for a defect or
want of notice, if they have in truth been called upon and spoken.’’ [Internal
quotation marks omitted.]); Wurst v. Lowery, 286 Ark. 474, 475, 695 S.W.2d
378 (1985) (‘‘the failure to publish notice of an election [on whether to allow
the sale of alcohol] is immaterial if the election is actually held and the
electors have not been deprived of the opportunity to express themselves’’);
Menlo Park City School District v. Tormey, 218 Cal. App. 2d 76, 84, 32 Cal.
Rptr. 82 (1963) (failure of governing board of school district to publish in
newspaper notice of election on question of whether maximum tax rate of
district should be increased did not invalidate election when county clerk
complied with statute requiring that sample ballot be sent to all registered
voters); People v. Carlsbad, 128 Cal. App. 2d 77, 84, 274 P.2d 740 (1954)
(‘‘[t]he test for determining whether an election is invalidated because of a
failure to strictly comply with the notice provisions prescribed by the statute
has frequently been stated to be whether the voters generally have had
knowledge of the election and full opportunity to express their will, or
whether the variance may have affected the result by depriving a sufficient
number of voters of the opportunity to exercise their franchise’’); People v.
Carlsbad, supra, 84 (when election notice failed to provide date of election
and information regarding issue to be voted on, failure did not invalidate
election when date of election ‘‘was repeatedly and widely publicized with
a cumulative effect far beyond that which would normally follow a mere
compliance with the statute’’); Weisgerber v. Nez Perce County, 33 Idaho
670, 675, 197 P. 562 (1921) (special election was valid even though there
was no substantial compliance with notice provision because ‘‘great weight
of authority’’ supports rule that ‘‘[s]tatutory directions as to the time and
manner of giving notice of elections are mandatory upon the officers charged
with the duty of calling the election, and will be upheld strictly in a direct
action instituted before an election; but after an election has been held,
such statutory requirements are directory, unless it appears that the failure
to give notice for the full time specified by the statute has prevented electors
from giving a full and free express of their will at the election’’); Weisgerber
v. Nez Perce County, supra, 675 (citing cases); Demaree v. Johnson, 150
Ind. 419, 426, 50 N.E. 376 (1898) (defective notice of special election does
not invalidate election if voters had actual notice); Dishon v. Smith, 10
Iowa 212, 218–19 (1859) (result in election on whether to move county seat
was valid even without notice when ‘‘there was an election and the people
of the county voted, and it is not alleged that any portion of them failed in
knowledge of the pendency of the question, or to exercise their franchise’’);
Ginn v. Bonita, 62 So. 2d 159, 162 (La. App. 1952) (failure to publish notice
of election in newspaper as required by statute did not invalidate election
when it was clear from large percentage of electorate who voted ‘‘that
publication in the official journal would not have had an appreciable effect
upon the number voting’’); Ellis v. Karl, 7 Neb. 381, 390 (1878) (stating in
dictum that failure to provide proper notice of special election would not
invalidate election when there was no evidence that ‘‘any different result
would have been obtained by giving the full statutory notice’’); Albuquerque
v. Water Supply Co., 24 N.M. 368, 382, 174 P. 217 (1918) (failure to comply
with notice provision for election on bond issues did not require invalidation
of election results); State ex rel. Board of Education v. Jones, 131 N.E.2d
704, 708 (Ohio 1955) (when board of education failed to strictly comply with
statute requiring publication of notice of election on bond issue, extensive
advertising campaign, including distribution of literature, mailings to resi-
dents, house to house canvassing, posting of notices in public places, news-
paper items and public meeting constituted ‘‘substantial compliance as to
notice’’); In re License of Wilson-Patton Post 536, Inc., 62 Pa. D. & C. 215,
229–30 (1948) (failure to set forth place where election was to be held did
not invalidate referendum); Yonce v. Lybrand, 254 S.C. 14, 17, 173 S.E.2d
148 (1970) (failure to comply strictly with statutory notice provision did not
invalidate election when ‘‘[n]o inference may be drawn from the record that
a single vote was lost or affected by failure to publish a notice’’); Yonce v.
Lybrand, supra, 17 (‘‘unless the result of an election is changed or rendered
doubtful, it will not be set aside on account of mere irregularities or illegali-
ties’’ [internal quotation marks omitted]); State v. Quarterly County Court,
209 Tenn. 153, 155, 351 S.W.2d 390 (1961) (when voters have actual notice
of election and have participated in election to usual extent, election is not
invalidated by failure to comply strictly with statutory notice provision);
Norman v. Thompson, 96 Tex. 250, 254, 72 S.W. 62 (1903) (failure to strictly
comply with notice provision for referendum did not constitute grounds for
contesting referendum); Vickers v. Schultz, 195 Wash. 651, 656–57, 81 P.2d
808 (1938) (failure of clerk of election board to post notice of election on
formation of public utility district in each polling place in county as required
by statute did not require invalidation of election when election was subject
‘‘of continued public discussion and controversy’’ from time that formation
of district was first proposed up to time of election and ‘‘[t]he vote was
such, as compared with the votes upon other propositions, as to indicate
an intelligent and well-informed expression of the popular will’’ [internal
quotation marks omitted]).
The dissent contends that our reliance on these cases is misplaced
because, in all but two of them, ‘‘there was at least partial, if not substantial,
compliance with the applicable statutory notice requirements.’’ See Wurst
v. Lowery, supra, 286 Ark. 475; Dishon v. Smith, supra, 10 Iowa 218; see
also Weisgerber v. Nez Perce County, supra, 33 Idaho 675 (special election
was valid even though there was no substantial compliance with notice
provision). The question that the court addressed in all of the other cases,
however, was whether the defect in the notice could have affected the result
of the election, not whether there was at least partial compliance with the
statutory notice provision. See Henard v. St. Francis Election Committee,
supra, 301 Ark. 463 (‘‘[n]one of the improprieties alleged by [the] appellants
appear to have affected the outcome of this election’’); Menlo Park City
School District v. Tormey, supra, 218 Cal. App. 2d 84 (‘‘the substantial rights
of the electors were in nowise affected’’); People v. Carlsbad, supra, 128
Cal. App. 2d 84 (where ‘‘a considerable deviation [from notice requirement]
appears the burden rests upon the party seeking to uphold the election to
show that such variance has not affected the result’’); Demaree v. Johnson,
supra, 150 Ind. 426 (‘‘if it were shown that the failure to give the notice in
the manner provided for in the statute had resulted in preventing such a
number of electors from participating in the election as would have changed
the result if they had voted, then the failure to give the notice as required
by the statute would be fatal’’); Ginn v. Bonita, supra, 62 So. 2d 162 (‘‘publica-
tion in the official journal would not have had an appreciable effect upon
the number voting’’); Ellis v. Karl, supra, 7 Neb. 390 (question before court
was whether ‘‘any different result would have been obtained by giving the
full statutory notice’’); Albuquerque v. Water Supply Co., supra, 24 N.M. 382
(when official has failed to comply with notice requirements, result will not
be invalidated unless ‘‘it . . . be shown that, if the statute had been strictly
complied with, the result would have been different’’); State ex rel. Board
of Education, Bellefontaine City School District v. Jones, supra, 131 N.E.2d
708 (‘‘[n]o claims are made that the result of the election might have been
different, or that any elector was induced to cast his ballot otherwise than
he would have done had the notice fully complied with the statute’’); In re
License of Wilson-Patton Post 536, Inc., supra, 62 Pa. D. & C. 230 (when
‘‘failure to set forth in the notice the place where the election was to be
held . . . had no vital influence on the result of the election [and did not]
prevent a full and free expression of the popular will’’ election would not
be invalidated); Yonce v. Lybrand, supra, 254 S.C. 18 (‘‘where the result of
an election is not made doubtful nor changed, irregularities or illegalities,
in the absence of fraud, will not cause the expressed will of the body of
the voters to be set aside’’ [internal quotation marks omitted]); State v.
Quarterly County Court, supra, 209 Tenn. 155 (‘‘[w]hen no one is prejudiced
or damaged by the failure to comply strictly with the [notice] statute, the
election will not be disturbed’’); Norman v. Thompson, supra, 96 Tex. 254
(‘‘if it appears from the evidence that . . . irregularities existed as to render
the true result of the election impossible to be arrived at, or very doubtful
of ascertaining, the court shall adjudge such election to be void’’ [internal
quotation marks omitted]); Vickers v. Schultz, supra, 195 Wash. 657 (‘‘[t]he
want of statutory notice, it is clear, did not result in deprivation of sufficient
number of the electors of the opportunity to exercise their franchise to
change the result of the election’’).
20
See Bilek v. Chicago, 396 Ill. 445, 461, 71 N.E.2d 789 (1947) (‘‘[t]he
election provided for is a special election, since there is no general law
providing for it and fixing the time when it shall be held, and in such a case
if notice is not given as required for the length of time and by the number of
notices required by the statute, the election will be void’’ [internal quotation
marks omitted]); Walker v. Oak Cliff Volunteer Fire Protection District,
807 P.2d 762, 766 (Okla. 1990) (‘‘Notice requirements may be relaxed for
general elections, because the public is presumed to know when they are
held. However, special elections are not set on a date certain.’’ [Footnote
omitted.]); see also 26 Am. Jur. 2d 79–80, Elections § 277 (2014) (‘‘[n]otice
requirements may be relaxed for general elections because the public is
presumed to know when they are held, but strict compliance with notice
requirements for a special election normally is required although some
jurisdictions only require substantial compliance’’ [footnotes omitted]); but
see Hill v. Skinner, 169 N.C. 405, 411, 86 S.E. 351 (1915) (‘‘In the case of
special elections, when the law does not fix the time and place of holding
the same, but they are to be fixed by some authority, failure to give notice
or issue a proclamation of the election will render it a nullity unless the
people have actual knowledge and attend, so that the result is not affected.
If it appears that the people generally had actual knowledge of a special
election, so that the result would not have been different if proper notice
had been given, failure to give such notice does not vitiate the election.’’
[Internal quotation marks omitted.]); 26 Am. Jur. 2d, supra, § 277, p. 80
(‘‘[a] failure to comply with statutory-notice requirements will invalidate an
election which has already been held only if it appears that it prevented
the electors from obtaining a free and full expression of their will at the
election or if the statute contains a further provision voiding an election
not held in accordance therewith’’), citing Moore v. Page, 148 Ariz. 151, 159,
713 P.2d 813 (1986) (stating in dictum that failure to strictly comply with
statutes governing special election, thereby potentially disenfranchising vot-
ers, would not require invalidation of election when plaintiff failed ‘‘to show
that [noncompliance] may have affected the result of the election’’); 26 Am.
Jur. 2d, supra, § 280, p. 82 (‘‘Even in special elections . . . following the
particular form and manner required by a statute for giving notice is not
absolutely essential provided that there has been a substantial compliance
with statutory provisions. Further, the courts are reluctant to defeat a fair
expression of the popular will in either a general or special election. Thus,
any errors or defects claimed to exist in a notice of election generally will
not invalidate the election unless there is some showing that the electors
were in fact misled by such defects.’’ [Footnotes omitted.]).
21
See Whittle v. Whitley, 202 Ga. 633, 44 S.E.2d 241 (1947) (partial compli-
ance with notice provision was not sufficient); Chanute v. Davis, 85 Kan.
188, 190, 116 P. 367 (1911) (same); Chumley v. Williams, 639 S.W.2d 557,
560 (Ky. App. 1982) (‘‘where an official makes no effort to comply with the
[notice] statute, that failure is fatal and the doctrine of substantial compli-
ance cannot be utilized’’); Neal v. Board of Supervisors, 217 Miss. 102, 111,
63 So. 2d 540 (1953) (partial compliance with notice provision was not
sufficient); State ex rel. Berkeley v. Holmes, 358 Mo. 1237, 1243–44, 219
S.W.2d 650 (1949) (time requirements of statutory notice provisions are
mandatory and failure to comply strictly with them invalidates election);
Appeal of Frederick H. Harper, Jr., Inc., 150 Pa. Super. 569, 575, 29 A.2d
236 (1942) (‘‘[t]he entire failure to give the statutory notice rendered the
special election invalid’’); Turner v. Lewie, 201 S.W.2d 86, 89–90 (Tex. Civ.
App. 1947) (partial compliance with statutory notice provision was not
sufficient); see also footnote 23 of this opinion; but see Wurst v. Lowery,
286 Ark. 474, 475, 695 S.W.2d 378 (1985) (‘‘the failure to publish notice of
an election [on whether to allow the sale of alcohol] is immaterial if the
election is actually held and the electors have not been deprived of the
opportunity to express themselves’’); Dishon v. Smith, 10 Iowa 212, 218
(1859) (failure to provide notice of election on question of whether to move
county seat did not invalidate result because ‘‘the people are not to be
disfranchised, to be deprived of their voice, by the omission of some duty
by an officer, if an election has, in fact, been held at the proper time’’).
22
In other words, because the public is presumed to know when regular
elections are held, it is possible that evidence that would be insufficient to
establish that the result of a general election was seriously in doubt might
be sufficient to establish that the result of a referendum was seriously in
doubt. The evidence in the present case, however, overwhelmingly supports
the conclusion that the voters in the regional school district, as a class,
received at least as much notice of the referendum as they would have
received if the defendants had strictly complied with the statutory notice
provisions, and the plaintiffs presented no evidence that any individual voter
who otherwise would have voted in the referendum was prevented from
doing so by the defendants’ failure to comply with the statutory notice pro-
visions.
23
Accordingly, we are not persuaded by the cases that have adopted such
reasoning. See Chumley v. Williams, 539 S.W.2d 557, 559–60 (Ky. App.
1982) (if official partially complies with notice provision and ‘‘attempted
compliance, together with other publicity, [is] sufficient to notify the voters
of the pending election,’’ election will be validated, but ‘‘where an official
makes no effort to comply with the statute, that failure is fatal and the
doctrine of substantial compliance cannot be utilized,’’ even if voters had
actual notice and strict compliance with notice provision would not have
affected result).
24
The dissent relies on this court’s decision in Pollard v. Norwalk, 108
Conn. 145, 142 A. 807 (1928), to support its conclusion that this court
previously has held that towns must strictly comply with notice provisions
for special elections. It is not entirely clear, however, whether that case
involved a defective notice for an election or a defective notice for a town
meeting. At one point, the opinion refers to a ‘‘city and town election’’ at
which voters approved the issuance of bonds; id., 146; but the opinion then
states that ‘‘notice of the meeting’’ did not comply with the notice provisions
of the city charter. (Emphasis added.) Id. In addition, the court in Pollard
relied entirely on case law governing the notice requirements for town
meetings. Id. In any event, the decision in Pollard is cursory, and the court
did not engage in any substantive analysis of the public policy concerns
implicated by the judicial invalidation of elections. Accordingly, to the extent
that Pollard supports the dissent’s position, we conclude that it is inconsis-
tent with later case law, namely Bortner and Sadlowski, and, therefore, it
must be overruled.
25
The trial court rejected the plaintiff’s claim pursuant to Lenarz because
Lenarz involved the constitutional right to counsel while, in the present
case, the plaintiffs’ constitutional claims were stricken from the operative
complaint. The plaintiffs contend that, to the contrary, their constitutional
due process claim raised in count five of the operative complaint survived
the defendants’ motion to strike. See footnote 11 of this opinion. We note,
however, that the trial court struck an identical constitutional claim in count
two of the operative complaint. In any event, regardless of whether the trial
court intended to strike the plaintiffs’ constitutional due process claim,
that claim was premised on the alleged violation of the statutory notice
provisions. The plaintiffs are essentially asking us to alter the standard that
this court applies to a claim that an election must be invalidated because
of irregularities in the election process by recharacterizing that claim as a
constitutional claim. We decline this invitation. Accordingly, we conclude
that, even assuming that the plaintiffs’ due process claim survived the defen-
dants’ motion to strike, because we conclude that the trial court properly
granted summary judgment for the defendants on the plaintiffs’ statutory
claims, there is no basis for the constitutional claim.
26
We do not suggest that a plaintiff who has claimed that there was no
compliance with a statutory notice provision for an election or a referendum
is always required to identify specific persons who would have voted if the
officials conducting the proceeding had complied with the statutory notice
provision. For example, if there was no statutory or actual notice of the
election or referendum, it reasonably could be inferred from that fact alone
that a significant number of voters were prevented from voting. Where, as
here, the public received actual notice of the referendum that equaled or
exceeded the statutorily required notice, however, no such inference can
be drawn.
27
As we have indicated herein, the vote in the June 18, 2013 referendum
was 1269 to 1265 in favor of approving the referendum question, for a total
of 2534 votes cast. The defendants presented an affidavit in support of
their motions for summary judgment indicating that, in eight other recent
referenda within the regional school district between May 4, 2011, and May
6, 2014, a total of votes cast was 2402, 2132, 2053, 2039, 2090, 2175, 2325,
and 2101, respectively. Thus, there were more votes cast in the June 18,
2013 referendum than in any of these other referenda.
28
Because we conclude that there was no genuine issue of material fact
as to whether the defendants’ failure to strictly comply with the warning
provisions of §§ 10-56 (a), 10-47c and 9-226 caused the referendum results
to be seriously in doubt, we need not consider whether the defendants
substantially complied with those provisions. See Bortner v. Woodbridge,
supra, 250 Conn. 258 (election may be judicially invalidated only when ‘‘[1]
there were substantial violations of the requirements of the [governing
statutes] . . . and [2] as a result of those violations, the reliability of the
result of the election is seriously in doubt’’ [emphasis added]). We also need
not address the defendants’ claim, as an alternative ground for affirmance,
that they are entitled to judgment as a matter of law with respect to the
plaintiffs’ claim for damages because §§ 9-7b (a) (9) and 9-371b provide the
exclusive vehicles for contesting a referendum, and those statutes provide
only equitable relief.