Booker v. Jarjura, (AC 29940) (Conn. App. 3/23/2010)

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CICERO BOOKER, JR.,

v. MICHAEL J. JARJURA ET AL.^*

(AC 29940).

(AC 29941).

Appellate Court of Connecticut.

Argued October 15, 2009.

Officially released March 23, 2010.

Appeal from Superior Court, judicial district of Waterbury, Cremins, J.

Frederick W. Krug, for the appellant-appellee (plaintiff).

Howard K. Levine, for the appellees-appellant (defendant Maria Giordano et al.).

Harper, Alvord and Foti, Js.

Opinion

FOTI, J.

These consolidated appeals concern an action brought by the plaintiff, Cicero Booker, Jr., the minority leader of the board of aldermen of the city of Waterbury, for quo warranto and mandamus. The plaintiff challenged the propriety of certain appointments of city electors to various boards and commissions by the mayor of Waterbury, Michael J. Jarjura, and the zoning commission of the city of Waterbury.¹ The plaintiff also sought an injunction directing the zoning commission to make appointments to minority positions on the zoning commission only from persons named on a list provided by the minority leader of the board of aldermen. On November 27, 2007, the plaintiff filed a second amended, verified complaint against the defendants Dov Braunstein, Nancy Howse, Maria Giordano and the members of the zoning commission.² The first count was a claim for quo warranto against Braunstein and Howse; however, the plaintiff subsequently withdrew the claim as to Howse.³ Count two was a claim for quo warranto against Giordano. The third count was a claim for mandamus against the members of the zoning commission. By memorandum of decision filed May 2, 2008, the trial court found in favor of the plaintiff on count one, granted the application for a writ of quo warranto as to Braunstein and ordered him ousted from his position on the inland wetlands and watercourses commission of the city of Waterbury. The court, however, denied the plaintiff's application for a writ of quo warranto as to Giordano, as well as the claim for a writ of mandamus against the members of the zoning commission. On May 19, 2008, the plaintiff appealed from the court's judgment in favor of Giordano and the members of the zoning commission on counts two and three of the complaint (AC 29940). On May 21, 2008, Braunstein appealed from the court's judgment in favor of the plaintiff on count one (AC 29941).⁴ We affirm the judgment of the trial court.

The following factual and procedural history of these consolidated appeals is pertinent to their resolution. On December 1, 2005, the plaintiff, a member of the Independent political party and a recently elected member of the board of aldermen, was elected to the minority leader position on the board as provided for in the Waterbury charter. Pursuant to the charter, the mayor has the duty to appoint city electors, subject to the approval of the board of aldermen, to various boards and commissions.⁵ On January 30, 2006, the plaintiff submitted to Jarjura a list of individuals he believed eligible for appointment to various boards and commissions.⁶ On February 24, 2006, Jarjura submitted to the board of aldermen a list of individuals for appointment to various boards and commissions, including individuals who were to serve as minority party members. Jarjura's list included individuals for minority party member appointment to boards and commissions who were not on the list the plaintiff had provided, including Braunstein.⁷

On May 23, 2007, there was a minority seat vacant on the zoning commission. As of that date neither Jarjura nor the board of aldermen had acted to fill the vacancy on the zoning commission. On that date, pursuant to the charter,⁸ the members of the zoning commission voted unanimously to appoint Giordano, a Republican, to the vacant seat. Giordano did not appear on the plaintiff's list of recommended minority party members for appointment to the zoning commission. Other facts relevant to these appeals will be set forth as necessary. We now address each appeal in turn.

I AC 29940

In this appeal, the plaintiff appeals from the judgment of the court denying his application for a writ of quo warranto as to Giordano and his claim for mandamus as to the members of the zoning commission. We will discuss each of the plaintiff's claims in turn.

A Quo Warranto

"A complaint in the nature of a quo warranto may be brought [w]hen any person . . . usurps the exercise of any office . . . [and] the Superior Court may proceed. . . to punish such person . . . for such usurpation, according to the course of the common law and may proceed therein and render judgment according to the course of the common law. . . . A quo warranto proceeding under the common law lies only to test the defendant's right to hold office de jure. . . . In such an action, the burden is on the defendant to show, by a preponderance of the evidence, a complete title to the office in dispute. . . . The title to be challenged in a quo warranto proceeding must be to a public office." (Citations omitted; internal quotation marks omitted.) Dumais v. Underwood, 47 Conn. App. 783, 788, 707 A.2d 333, cert. denied, 244 Conn. 918, 714 A.2d 4 (1998); see also General Statutes § 52-491.⁹ In this claim, the plaintiff argues that the court incorrectly interpreted the Waterbury charter as not restricting those appointments to minority seat vacancies made by board and commission members, pursuant to chapter 4, § 4-2 (b) (2) of the charter; see footnote 8 of this opinion; to those individuals on the minority leader's list. Essentially, the plaintiff claims that the restriction found in § 4-2 (b) (1) of the charter, which reads: "No minority member of any such board shall be eligible to act as such unless his name shall be one of those listed by such minority leader in accordance with the provisions hereof"; see footnote 6 of this opinion; applies to all minority member appointments and not merely those made by the mayor. We disagree.

The plaintiff's claim requires us to interpret the Waterbury charter. We first address the appropriate standard of review. As with any issue of statutory construction, the interpretation of a charter presents a question of law, over which our review is plenary. See Lash v. Freedom of Information Commission, 116 Conn. App. 171, 186, 976 A.2d 739, cert. granted on other grounds, 293 Conn. 931, 980 A.2d 915 (2009). When construing a statute, "[o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." (Internal quotation marks omitted.) Canterbury v. Deojay, 114 Conn. App. 695, 716, 971 A.2d 70 (2009).

The plaintiff argues that the limitation found in § 42 (b) (1) cautioning that "[n]o minority member of any such board shall be eligible to act as such unless his name shall be one of those listed by such minority leader in accordance with the provisions hereof," not only applies to appointments to minority vacancies made by the mayor but also to such appointments made by the members of boards or commissions pursuant to § 4-2 (b) (2). See footnote 8 of this opinion. This is so, the plaintiff contends, because the last sentence of § 42 (b) (2) declares that such appointments are subject to "this [c]harter." This term, the plaintiff continues, read in conjunction with the restriction found in § 42 (b) (1), requires that all appointments to minority vacancies must come from the list of minority party members provided by the minority leader of the board of aldermen. The plaintiff concludes that this is the only logical and reasonable interpretation of the charter provisions regarding appointment of minority party members to boards or commissions because any other conclusion would create the "anomalous situation in which different eligibility standards would apply, depending on whether the appointment is made by the mayor or by the members of a board or commission." Furthermore, the plaintiff cautions, a contrary interpretation in which such appointments are not restricted by the requirement that they appear on the minority leader's list would allow the mayor to circumvent those very requirements "by not making minority appointments and then having political allies on boards or commissions with vacant minority seats fill those seats without regard to the minority leader's list." Finally the plaintiff suggests that such a construction would thwart the purpose of limiting appointments to minority vacancies to persons named on the minority leader's list and create an inharmonious scheme of appointing electors to minority vacancies on boards and commissions.

After a careful review of the charter as a whole,¹⁰ we conclude that the language of § 4-2 (b) (1) is strictly a limitation on the appointment power of the mayor and as such does not confine appointments to minority seat vacancies, made pursuant to § 4-2 (b) (2), to individuals present on the minority leader's list. A closer look at chapter four of the Waterbury charter supports this conclusion. We first note that chapter four of the Waterbury charter is simply titled "The Mayor,"¹¹ and § 4-2 of that chapter, headed "Duties," starts with the phrase: "It shall further be the duty of the Mayor," with ensuing subsections that delineate the mayor's various duties, as well as certain limitations. Section 4-2 (b) (1) is headed: "Appointment of Minority Party Members of Boards." This subdivision clearly...