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

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ARRAS v. REGIONAL SCHOOL DISTRICT NO. 14—DISSENT
ZARELLA, J., with whom ROGERS, C. J., and ROB-
INSON, J., join, dissenting. On June 18, 2013, a referen-
dum was held in the towns of Woodbury and Bethlehem
on the question of whether to finance more than $63
million worth of renovations to the regional high school.
The financing was approved by a margin of four votes,
1269 to 1265. The majority upholds this referendum
result as valid, even though the town clerks of Wood-
bury and Bethlehem (town clerks) failed to notify the
voters of those towns that the referendum was being
held, as prescribed by statute. I conclude to the contrary
that the referendum result is invalid because the town
clerks completely failed to comply with the statutory
notice requirement, as opposed to substantially or even
partially complying, and because this was a referendum,
as opposed to a general or primary election. Accord-
ingly, I respectfully dissent.
The majority rejects the plaintiffs’1 claim that the
town clerks’ failure to comply with the notice statutes;
see General Statutes §§ 9-226, 10-47c and 10-56; was
prejudicial per se, rendering the referendum null and
void ab initio. Instead, the majority concludes that,
when a party claims that a referendum result is invalid,
violations of the statutes governing referenda are sub-
ject to the same standard as violations of statutes gov-
erning general elections, namely, that a plaintiff must
prove that ‘‘(1) there were substantial violations of the
requirements of the [governing] statute[s] . . . and (2)
as a result of those violations, the reliability of the
result of the election is seriously in doubt.’’ Bortner v.
Woodbridge, 250 Conn. 241, 258, 736 A.2d 104 (1999);
see also Caruso v. Bridgeport, 285 Conn. 618, 650–52,
941 A.2d 256 (2008). Applying that standard to the facts
of this case, the majority concludes that the trial court
properly determined that the violations of the notice
statutes did not cause the reliability of the referendum
result to be seriously in doubt, given the widespread
publicity of the referendum at issue.
Although I question whether the statutory violation
in the present case satisfies the Bortner standard, I
need not address that issue because Bortner does not
provide the appropriate standard for evaluating the
impact of statutory violations on the validity of refer-
enda. The majority fails to recognize that referenda
are fundamentally different from primary or general
elections, and, therefore, we should require stricter
compliance with statutes governing referenda.
It is widely accepted that the degree to which election
officials must comply with statutory notice require-
ments depends on the type of election being held.
‘‘Notice requirements may be relaxed for general elec-
tions 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 compli-
ance.’’ (Footnotes omitted.) 26 Am. Jur. 2d 79–80, Elec-
tions § 277 (2014). Compare, e.g., Whittle v. Whitley,
202 Ga. 633, 633, 44 S.E.2d 241 (1947) (special election
was invalid when notice was published one week in
advance instead of two weeks in advance, as statutorily
required), Bilek v. Chicago, 396 Ill. 445, 454, 465, 71
N.E.2d 789 (1947) (special election was invalid when
notice was published but failed to include time and
place of election in each district), and Neal v. Board
of Supervisors, 217 Miss. 102, 111, 63 So. 2d 540 (1953)
(special election was invalid when notice was published
twenty-eight days in advance instead of at least thirty
days in advance, as statutorily required), with Fuller v.
Board of Education, 875 P.2d 1156, 1159 (Okla. App.
1994) (special election was valid when notice was pub-
lished but failed to include locations of polling places
and information regarding absentee voting), and Cohen
v. Clear Lake City Water Authority, 687 S.W.2d 406,
408–409 (Tex. App. 1985) (special election was valid
when notice was published but not all publications
included same level of detail regarding question to be
voted on).
In Connecticut, we previously have recognized the
distinction between special and general elections and
have required strict compliance with notice require-
ments for special elections. In Pollard v. Norwalk, 108
Conn. 145, 146, 142 A. 807 (1928), the legislature author-
ized by special act the issuance of bonds in an amount
not to exceed $450,000 for the city of Norwalk, subject
to the approval of city residents. The city’s residents
approved the issuance of the bonds ‘‘[a]t the city elec-
tion in October, 1927 . . . .’’ Id. However, legal notice
of the election was given no more than thirteen days
in advance, and the city charter required that notice be
given at least two weeks in advance. Id. ‘‘[I]n view of
[this] failure to give notice of the city . . . election in
1927 for the period of time fixed by the charter’’; id.,
147; the court invalidated the election result, even
though legal notice had been given merely one day late.
See id. In reaching this conclusion, the court relied on
case law in which this court had held that notice statutes
for town meetings ‘‘must be complied with literally
. . . .’’ Id., 146. Thus, this court has required strict, not
merely substantial, compliance with statutory notice
requirements for special elections concerning the issu-
ance of municipal bonds.
The trial court in the Litchfield action,2 and by exten-
sion the trial court in the present case, noted that Pol-
lard is inapposite because Pollard relied on case law
relating to notice requirements for town meetings, not
referenda.3 See Woodbury v. Regional School District
No. 14, Superior Court, judicial district of Litchfield,
Docket No. LLI-CV-13-6009045-S (December 13, 2013).
The fact that Pollard relied on case law involving town
meetings, however, in no way makes it less relevant or
applicable in the present case.
As an initial matter, Pollard involved an election, not
a town meeting, as evidenced by the court’s repeated
reference to ‘‘the city . . . election to be held in 1927
. . . .’’ Pollard v. Norwalk, supra, 108 Conn. 146; see
also id., 147 (‘‘the city . . . election in 1927’’). Indeed,
the court referred three times to the vote on the issu-
ance of the municipal bonds as an election. Id., 146–47.
Even if the vote on the municipal bonds was taken at
a town meeting, Pollard nevertheless would be applica-
ble in the present case. Whether the votes in Pollard
were cast at a communal town meeting or in individual
voting booths is irrelevant. What is important is that
this court has required strict compliance with statutory
notice requirements when local electorates are deciding
whether to finance the issuance of municipal bonds.4
Thus, Pollard, not Bortner, controls in the present
case. Pollard involved a special election, which is an
election that is not held regularly. See, e.g., Walker v.
Oak Cliff Volunteer Fire Protection District, 807 P.2d
762, 766 (Okla. 1990) (‘‘special elections are not set on a
date certain’’). The present case involves a referendum,
which is a type of special election because referenda
are not held regularly. Compare, e.g., General Statutes
§ 10-47c (providing that regional board of education of
regional school district ‘‘shall set the date for referenda’’
to amend regional school district plan approved through
referenda), with Conn. Const., art. III, § 8 (providing
that general election for state legislature ‘‘shall be held
on the Tuesday after the first Monday of November,
biennially, in the even-numbered years’’). Pollard there-
fore is directly applicable to the present case. In con-
trast, Bortner, as the majority recognizes, involved an
election of municipal officers; see Bortner v. Wood-
bridge, supra, 250 Conn. 246–47; and Caruso, which
applied the standard in Bortner, involved a primary
election. See Caruso v. Bridgeport, supra, 285 Conn.
622. As previously noted, the difference between gen-
eral and special elections is crucial for purposes of
providing notice because it cannot be presumed that
voters know the date of a special election or, in this
case, a referendum. Accordingly, Bortner is inapplica-
ble, and we instead must follow Pollard, which dictates
that there must be strict compliance with the statutes
governing referenda.
We need not, however, decide whether to apply a
standard of strict compliance, as Pollard dictates, or
mere substantial compliance because, in the present
case, there was no compliance. The parties stipulated
to the fact that the town clerks made no effort to comply
with the statutory requirement of publishing notice of
the referendum in a newspaper of general circulation.
Thus, there is no question that the town clerks’ actions
failed to satisfy either standard.5
The question then becomes what is the effect, if any,
of the evidence that the voters of the towns of Wood-
bury and Bethlehem had actual notice of the referen-
dum? As the majority observes, there were multiple
newspaper articles regarding the referendum, and the
named defendant Regional School District Number 14,
attempted to publicize the referendum. Can such alter-
native forms of publicity cure the failure to provide
legal notice? Given that we never before have been
presented with this exact question, sister state case law
is instructive.
In cases in which election officials have partially or
substantially complied with applicable statutory notice
requirements for a special election, some jurisdictions
have held that actual notice can cure the failure to
comply strictly with such requirements. See, e.g.,
Demaree v. Johnson, 150 Ind. 419, 424–26, 50 N.E. 376
(1898) (special election was valid when someone other
than sheriff posted ten statutorily required copies of
notice of special election because electorate had actual
knowledge thereof); Wright v. Flynn, 55 Mont. 61, 61–
62, 173 P. 421 (1918) (special election was valid when
county clerk posted notice in three most public places
but failed to publish notice in newspaper, as required
by statute, because voters had actual knowledge of
election); Ginn v. Bonita, 62 So. 2d 159, 162 (La. App.
1952) (special election was valid when legal notice was
posted in public places but not in newspaper, as
required by statute, because almost every eligible voter
voted); State ex rel. Board of Education v. Jones, 58
Ohio Op. 227, 230, 131 N.E.2d 704 (C.P. 1955) (publica-
tion of notice for two consecutive weeks in advance of
special election, instead of four, was cured by, inter
alia, ‘‘the distribution of literature; letters and cards
mailed to the householders of the city; the house-to-
house canvass by the Citizens Committee; [and] the
posting of notices in various public places’’); Wilson-
Patton Post 536, Inc., License, 62 Pa. D. & C. 215, 218,
229–30 (1948) (special election was valid when legal
notice was provided but failed to include location where
election was being held because voters had actual
notice of election); Yonce v. Lybrand, 254 S.C. 14, 15–18,
173 S.E.2d 148 (1970) (publication of notice less than
fifteen days prior to referendum, as required by statute,
was cured by newspaper articles and political advertise-
ments regarding referendum); State ex rel. Inman v.
Quarterly County Court, 209 Tenn. 153, 155, 351 S.W.2d
390 (1961) (posting of legal notice eight days in advance
of referendum instead of ten days, as statutorily
required, was not fatal because ‘‘[the] election was given
widespread newspaper publicity and . . . every inter-
ested citizen had an opportunity to vote and a great
majority of them did’’); Norman v. Thompson, 96 Tex.
250, 251–52, 254, 72 S.W. 62 (1903) (special election
was valid, even though notice was posted in only four
of five statutorily required locations, because voters
had actual notice of election); Rands v. Clarke County,
79 Wash. 152, 159–60, 139 P. 1090 (1914) (publication of
notice twenty-six days in advance of special election
instead of twenty-eight days, as required by statute, was
cured by fact that ‘‘the matter [to be voted on] was
generally and publicly discussed by the residents and
voters of the county’’ prior to special election).
However, in cases in which there has been a complete
failure to comply with a statutory notice requirement,
such as in the present case, the majority of jurisdictions
have held that evidence of actual notice does not cure
the failure to comply. See, e.g., Chanute v. Davis, 85
Kan. 188, 189–91, 116 P. 367 (1911) (special election on
municipal bonds was deemed invalid due to complete
failure to provide notice, even though issuance of bonds
was matter of ‘‘great public interest and agitation’’ and
special election was covered in ‘‘[m]any’’ local newspa-
per articles); Chumley v. Williams, 639 S.W.2d 557,
559–60 (Ky. App. 1982) (rejecting claim that ‘‘extensive
publicity’’ surrounding special election could cure ‘‘total
failure’’ to comply with statutory notice requirement);
Walker v. Oak Cliff Volunteer Fire Protection District,
supra, 807 P.2d 766 (invalidating special election results
because ‘‘there was absolutely no compliance with the
statutorily required notice,’’ despite publication of
newspaper article and advertisements regarding special
election, and house-to-house distribution of handbills
[emphasis omitted]); In re Frederick H. Harper, Jr.,
Inc., 150 Pa. Super. 569, 575, 29 A.2d 236 (1942) (‘‘[T]he
lack of [statutorily required] newspaper advertisement
by the county board of elections of the holding of the
referenda at least ten days in advance thereof was not
cured by any degree of actual notice or publicity or
public controversy. The entire failure to give the statu-
tory notice rendered the special election invalid.’’);
Turner v. Lewie, 201 S.W.2d 86, 89 (Tex. Civ. App.
1947, writ dismissed) (‘‘an entire failure to give a notice
required by law’’ was not cured even though ‘‘some or
even all of the voters learned of the election through
reading news items, or by conversations with other
citizens, or by hearing of it through any [alternative]
means’’).6 But see Wurst v. Lowery, 286 Ark. 474, 475,
695 S.W.2d 378 (1985) (‘‘the failure to publish notice of
an election is immaterial if the election is actually held
and the electors have not been deprived of the opportu-
nity to express themselves’’); Dishon v. Smith, 10 Iowa
212, 218–19 (1859) (election was valid without notice
because ‘‘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 ques-
tion, or to exercise their franchise’’); Hanover v. Boyd,
173 Tenn. 426, 438, 121 S.W.2d 120 (1938) (failure to
issue and publish writ of election one month prior to
special election was cured by virtue of fact that special
election was ‘‘a matter of public knowledge’’).
Moreover, at least one state has held that, even when
there has been substantial compliance with applicable
statutory notice requirements, evidence of actual notice
cannot cure the failure to comply strictly with such
requirements. See State ex rel. Berkeley v. Holmes, 358
Mo. 1237, 1239–40, 1242–44, 219 S.W.2d 650 (1949) (pub-
lication of notice nineteen days in advance of special
election instead of twenty-one days, as required by stat-
ute, invalidated election, despite publication of newspa-
per article concerning special election and mailing of
‘‘election maps’’ to every voter).
Thus, the majority of courts have concluded that evi-
dence of actual notice is insufficient to cure a total
failure to comply with statutory notice requirements
for special elections. These courts have reasoned that
to hold otherwise would effectively erase notice
requirements from the statutes and thereby usurp the
role of the legislature. The Supreme Court of Kansas
summarized this logic best by stating: ‘‘The question
. . . is whether the court shall recognize a kind of pub-
licity which has no legislative basis whatever upon
which to rest in order to support a special election
resulting in bonding the city, and thereby adding to
the burdens of every taxpayer within its limits. The
legislature could not have been unmindful of the fact
that proposed measures of this character would be dis-
cussed in private, in public, and by the press. Undoubt-
edly it took for granted the certainty of such publicity.
Nevertheless, it provided for a specific notice making
a collective statement of all the information necessary
for the guidance of a voter, to be published for a definite
period of time. The court is not prepared to substitute
its judgment for that of the legislature and accept antici-
pated notoriety as the equivalent of official notice.’’
Chanute v. Davis, supra, 85 Kan. 190; see also Chumley
v. Williams, supra, 639 S.W.2d 560 (‘‘To hold an election
valid when there has been a total failure to comply with
a specific requirement of the [legislature] as to notice
is simply to hold for naught a specific direction of the
legislative authority. . . . Such a holding would result
in the abrogation of the power of the [legislature].’’);
State ex rel. Berkeley v. Holmes, supra, 358 Mo. 1243
(‘‘it would be a matter of speculation and conjecture
. . . to attempt to determine that some other notice or
source of information was a proper or effective substi-
tute for the very specific time of notice requirements
of the statute’’); cf. American Legion Phillips Post v.
Malden, 330 S.W.2d 189, 192 (Mo. App. 1959) (‘‘[T]he
only substantial compliance is actual compliance in
full. A holding that a lesser notice will do would amount
to judicial legislation on our part.’’ [Emphasis in origi-
nal; footnote omitted.]).
This rationale applies with no less force in Connecti-
cut. In enacting §§ 9-226 and 10-47c, the legislature
required that, prior to a referendum, ‘‘[t]he town clerk
in each town shall, in the warning for [a town] election,
give notice of the time and the location of the polling
place in the town . . . 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 . . . .’’ (Emphasis added.) General
Statutes § 9-226. In upholding the referendum result in
the present case, the majority rewrites this statute to
make it directory instead of mandatory, despite the
town clerks’ total failure to comply with this statutory
requirement. It is axiomatic that we do not possess
the constitutional authority to replace the legislature’s
judgment regarding what type of notice voters are enti-
tled to receive with our own.
Additionally, allowing referenda to be held when no
legal notice has been given violates fundamental demo-
cratic principles. We previously have recognized that,
‘‘under our democratic form of government, 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.’’ (Citations omitted; internal quotation marks
omitted.) Bortner v. Woodbridge, supra, 250 Conn. 254.
Providing legal notice of a referendum is essential to
ensuring that the result reflects the true intent of the
voters. By allowing town clerks to hold referenda with-
out providing any notice to eligible voters, the majority
risks depriving voters of their right to govern them-
selves.7
The majority fails to appreciate the significant distinc-
tion between a town clerk’s complete failure to comply
with the statutory notice requirement and instances in
which there has been partial or substantial compliance.
For instance, the majority cites a litany of sister state
cases in support of its assertion that the failure to com-
ply strictly with statutory notice requirements does not
invalidate a referendum if there is no evidence that the
failure to so comply affected the result. See footnote
19 of the majority opinion. In all but two cases cited
by the majority, however, there was at least partial, if
not substantial, compliance with the applicable statu-
tory notice requirements. In contrast, in the present
case, there was no compliance with the notice statutes.
In sum, the majority incorrectly overrules Pollard for
no good reason;8 see footnote 24 of the majority opinion;
and applies the standard in Bortner for general and
primary elections, instead of the standard set forth in
Pollard, which specifically pertains to special elections
on the issuance of municipal bonds.9 In overruling Pol-
lard under the facts of this case, the majority in effect
amends the notice statutes, a power this court does
not have. We thus should follow Pollard and render
judgment for the plaintiffs because the town clerks
failed to comply strictly with the applicable statutory
notice requirements. We need not decide whether to
reaffirm Pollard entirely because there is no question
that the town clerks did not strictly or substantially
comply but completely failed to comply with the statu-
tory notice requirements. The plaintiffs are therefore
entitled to prevail regardless of whether strict or sub-
stantial compliance is required for referenda.
Accordingly, I respectfully dissent.
1
The plaintiffs are Thomas Arras, Sean Murphy and Gary Suslavich, who
are residents of Woodbury, and Karen S. Miller and Peter T. Miller, who
are residents of Bethlehem.
2
As the majority notes, ‘‘[the] uncertainty regarding the validity of the
referendum [result at issue in the present case] spawned two separate
actions. Specifically, the towns of Bethlehem and Woodbury brought an
action against the [named defendant, Regional School District Number 14]
in the Superior Court for the judicial district of Litchfield (Litchfield action)
seeking, inter alia, a declaratory judgment as to whether the [referendum
result was] valid. . . . In addition to the Litchfield action, the plaintiffs filed
the present action . . . .’’ Text accompanying footnote 11 of the majority
opinion.
3
The majority rejects the plaintiffs’ claim that case law pertaining to town
meetings is applicable in the present case. The majority reasons that such
authority is inapplicable because, in Sadlowski v. Manchester, 206 Conn.
579, 590, 538 A.2d 1052 (1988), this court determined that ‘‘a town meeting
and a referendum are entirely distinct decision-making mechanisms.’’ It is
important to clarify that Sadlowski in no way precludes us from considering
Pollard in the present case for three reasons.
First, as I discuss further, Pollard involved an election, not a town meeting.
See Pollard v. Norwalk, supra, 108 Conn. 146. Thus, any holding in Sadlowski
relating to town meetings is simply irrelevant to Pollard and the present
case. Second, a cursory examination of Sadlowski reveals that the case is
inapposite to the present case. In Sadlowski, the court considered whether
a referendum constituted a legislative body, as defined by General Statutes
§ 7-193 (a) (1), in order to determine whether the defendant town had the
authority to issue tax increment bonds without the approval of town resi-
dents through a referendum. See Sadlowski v. Manchester, supra, 206 Conn.
583, 589. Thus, Sadlowski had nothing to do with notice requirements for
referenda and has no bearing on Pollard or the present case. Third and
finally, the distinction the court made in Sadlowski between referenda and
town meetings does not render case law relating to town meetings irrelevant
in the present case. In Sadlowski, the court distinguished referenda from
town meetings on the basis that a ‘‘meeting’’ is commonly defined as ‘‘an
assembly or a gathering for political, social, religious or economic purposes’’;
id., 590; and, therefore, does not necessarily involve casting votes, which a
referendum does. See id. This conclusion is undoubtedly correct; a town
meeting is not necessarily equivalent to a referendum. However, that does
not mean that the two mechanisms are not similar and that case law relating
to one cannot be relevant to the other. For instance, a case involving votes
being cast at a town meeting; see Brooklyn Trust Co. v. Hebron, 51 Conn. 22,
24–25 (1883); may be analogous to a referendum for purposes of interpreting
notice requirements. Thus, Sadlowski is inapplicable in the present case
and in no way precludes us from considering Pollard.
4
Finally, any question as to Pollard’s applicability in the present case
should be dispelled by the court’s characterization of Pollard in State ex
rel. Berkeley v. Holmes, 358 Mo. 1237, 1241, 219 S.W.2d 650 (1949). In that
case, the Supreme Court of Missouri considered the same issue as in Pollard
and the present case, namely, ‘‘whether [a] special election authorizing
the bonds [for a certain municipality] was invalid because of insufficient
publication of notice.’’ Id., 1239. In its analysis, the court cited Connecticut
as a jurisdiction in which ‘‘it is held that a strict compliance with the statutory
requirements as to the time of giving notice of an election is an essential
requirement of its validity.’’ (Internal quotation marks omitted.) Id., 1240–41.
The court further stated that, in Pollard, ‘‘the [Connecticut] Supreme Court
of [Errors] held invalid bonds authorized at an election of which only
[thirteen] days’ notice was given when the law required at least two weeks.’’
(Emphasis added; internal quotation marks omitted.) Id., 1241. Thus, the
Supreme Court of Missouri understood Pollard as establishing a standard
of strict compliance with notice requirements for special elections.
5
The trial court in the present case, as well as the trial court in the
Litchfield action, reached the opposite conclusion, determining that the
plaintiffs had failed to show ‘‘that there were substantial violations of the
requirements of the [notice] statutes . . . .’’ It is unclear how these courts
could reach such a conclusion. Section 9-226, which sets forth the notice
requirement for referenda, provides that ‘‘[t]he town clerk in each town shall
. . . give notice of the time and the location of the polling place in the
town’’ by ‘‘publishing a warning in a newspaper published in such town or
having a general circulation therein . . . .’’ (Emphasis added.) It is undis-
puted that, in the present case, the town clerks failed to take any action to
publish notice of the referendum. Accordingly, they completely failed to
comply with the statutory notice requirement.
Therefore, it appears that the trial court confused the alternative forms
of publicity the referendum received with legal notice. As I discuss further,
unofficial forms of publicity cannot satisfy the statutory notice requirement.
Section 9-226 requires ‘‘[t]he town clerk,’’ not a media outlet or other party,
to publish notice of a referendum. Alternative forms of publicity therefore do
not constitute legal notice of the referendum. Thus, the trial court incorrectly
determined that the notice statutes were not violated.
6
The majority’s suggestion that some of these cases are unpersuasive
because they ‘‘predate the advent of television, not to mention robocalling,
mass public signage, mass mailings, the Internet and e-mail’’ is unfounded
in light of more recent decisions by the same courts relying on those cases
as precedent. See Genesis Health Club, Inc. v. Wichita, 285 Kan. 1021, 1034,
181 P.3d 549 (2008) (relying on Chanute for proposition that, ‘‘[a]s a general
rule, unless the statutory notice be given, a special city election authorizing
a bond issue is invalid’’ [internal quotation marks omitted]); Reese v. County
Board of Elections, 10 Pa. Commw. 448, 453–54, 308 A.2d 154 (1973) (relying
on In re Frederick H. Harper, Jr., Inc., for proposition that ‘‘[r]eferendum
questions authorized to be presented to the electorate under a particular
statute have been held to constitute a special election within the meaning
of . . . the Pennsylvania Election Code . . . rendering the giving of proper
notice thereof a fundamental preliminary requisite, without which the elec-
tion is invalid regardless of the publicity surrounding it’’ [citation omitted]);
Chumney v. Craig, 805 S.W.2d 864, 869 (Tex. App. 1991, writ denied) (relying
on Turner in voiding election results because ‘‘substantial compliance with
a publication requirement did not exist [when] no notice was published’’).
7
The majority reasons that a referendum, like a general election of public
officials, is a snapshot in time, and, therefore, the invalidation of a referen-
dum result on the ground that there has been no officially prescribed notice
would ‘‘disenfranchise the voters who contributed to that snapshot by cam-
paigning and voting for a particular result.’’ The majority fails to consider,
however, that voters who rely on the officially prescribed notice of a referen-
dum are equally disenfranchised when they fail to vote due to lack of such
notice and that all voters are free to participate in a second referendum
conducted pursuant to proper statutory notification on the same issue.
With respect to the majority’s suggestion that enforcing a statutory notice
provision would unjustifiably deprive government officials of the power to
conduct a special election, the majority overlooks the important distinction
between a general and a special election that requires their different
treatment.
8
As we stated in George v. Ericson, 250 Conn. 312, 736 A.2d 889 (1999),
‘‘[t]he doctrine of stare decisis counsels that a court should not overrule
its earlier decisions unless the most cogent reasons and inescapable logic
require it. . . . Stare decisis is justified because it allows for predictability
in the ordering of conduct, it promotes the necessary perception that the
law is relatively unchanging, it saves resources and it promotes judicial
efficiency. . . . It is the most important application of a theory of deci-
sionmaking consistency in our legal culture and it is an obvious manifestation
of the notion that decisionmaking consistency itself has normative value.’’
(Citations omitted; internal quotation marks omitted.) Id., 318. This principle
is especially true in the present case because neither party has asked the
court to reconsider and overrule Pollard, the only case of which I am aware
that is directly on point.
9
The majority overrules Pollard on the ground that the court did not
engage in any substantive analysis of public policy concerns in that case
and that Pollard is inconsistent with Bortner and Sadlowski. See footnote
24 of the majority opinion. Pollard, however, is not inconsistent with Sadlow-
ski for the reasons discussed in footnote 3 of this opinion. With respect to
the other grounds on which the majority relies, Pollard discussed the historic
roots of strict compliance with legal notice requirements, is the only case
in which this court has addressed the issue of notice in the context of
special elections for the issuance of municipal bonds, and, notably, has
never been challenged. See, e.g., Armstrong v. Hartford, 138 Conn. 545,
551, 86 A.2d 489 (1952) (distinguishing invalidation of special election results
in Pollard for lack of notice from validation of special election subject to
‘‘irregularities in the conduct of an election on the part of election officials
unless it appears that the outcome of the election would have been different
if they had not occurred’’); see also State ex rel. Perry v. Raacke, 19 Conn.
Supp. 248, 250, 111 A.2d 37 (1953) (distinguishing invalidation of election
for lack of notice in Pollard from validation of election despite irregularities
in its conduct). Moreover, we repeatedly emphasized in Bortner, which
involved voting machine irregularities in a general election, that the standard
articulated in that case was applicable pursuant to General Statutes § 9-328,
and made no reference to its applicability in any other context. See Bortner
v. Woodbridge, supra, 250 Conn. 244–45 (‘‘[t]he principal issue in this appeal
involves the standard to be applied under . . . § 9-328 for a trial court to
order a new election’’ [footnote omitted]). Thus, we reached our decision
in Bortner only after an exhaustive examination of the language, genealogy
and legislative history of that statute. Id., 259–63. To the extent the majority
relies on the standard in Bortner because certain general language in § 9-328
is similar to general language in the statutory scheme governing referenda, it
disregards the fact that referenda are discussed in another chapter of title
9 of the General Statutes and that, because referenda are special elections
that are not held regularly, they involve considerations not necessarily rele-
vant in the context of general elections. Accordingly, the majority’s decision
to overrule Pollard on the basis of the reasoning in Bortner, a case involving a
different type of election and election irregularities, is legally unsupportable.