Schiavone v. Destefano, 48 Conn. Sup. 521 (CT 2/1/2001), File No. CV-00 0444181S.

Page 521

48 Conn. Sup. 521

JOEL SCHIAVONE

v. JOHN DESTEFANO ET AL.

Superior Court of Connecticut.

Judicial District of New Haven.

File No. CV-00 0444181S.

Summary judgment; constitutional law; equal protection; municipal officials; elections; whether five year durational residency requirement for position of mayor of defendant city was invalid and violative of equal protection clause as adversely affecting exercise of fundamental rights to travel intrastate and of people to choose their political leaders along with right to seek elective office so as to warrant granting of motion for summary judgment filed by plaintiff, fifteen year city resident who changed residence but subsequently returned to city and had resided there less than two years at time of his mayoral candidacy.

Memorandum filed February 1, 2001.

Proceedings

Memorandum of decision on the plaintiff's motion for summary judgment. Motion granted.

Votre & Associates, for the plaintiff.

Corporation counsel of the city of New Haven, for the defendants.

I

INTRODUCTION

BLUE, J.

Since 1897, the charter of the city of New Haven (charter) has provided that, the mayor of the city "shall have been a legal voter in and resident of the city for at least five years immediately preceding said mayor's election." New Haven City Charter art. V, § 10 (a); 12 Spec. Acts 1115, No. 418, § 10 (1897). The question presented by the motion now before the court is whether this provision comports with the equal protection clauses of the state and federal constitutions.

The facts are not in dispute. The plaintiff, Joel Schiavone, is a well-known business executive in the city of New Haven (the city). He was educated at Yale and has lived in the city for more than fifteen years. At one point, he changed his residence to another town, but he moved back to the city on October 1, 1999 and has been a legal voter in and resident of the city since that date. He has declared his candidacy for mayor of the city. The city will hold its next regular mayoral election on November 6, 2001. New Haven City Charter art. IV, § 9. If Schiavone should be elected, however, he would not be eligible to serve since he would, on November 6, 2001, have been a legal voter in and resident of the city for just slightly more than two years immediately preceding the election.

Schiavone commenced this action by service of process on October 6, 2000. He is the sole plaintiff. The defendants are: John DeStefano, the present mayor of the city; the board of aldermen of the city; and, the city. (The defendants will be collectively referred to as the "city.")

Schiavone's complaint consists of a single count. It alleges that the charter requirement that the mayor "shall have been a legal voter in and resident of the city for at least five years immediately preceding said mayor's election" violates his rights under "Articles First and Fifth as well as [the] Fifth and Fourteenth Amendments to the United States Constitution as well as Article First, Section 20, Article Sixth, Section 10 and Article Tenth, Section 1 of the Constitution of the State of Connecticut." It asks for a declaratory judgment that article V, § 10 of the charter is unconstitutional and an injunction directing the defendants "to cease implementing the residency requirement" of that provision.

On December 7, 2000, Schiavone filed the motion for summary judgment now before the court. The motion requests the relief sought in the complaint.

The motion was heard on January 25, 2001. The issues before the court were significantly refined at the hearing. Schiavone has confined his argument to reliance on three constitutional provisions: (1) the equal protection clause of the federal constitution, U.S. Const., amend. XIV, § 1; (2) the equal protection guarantee of the state constitution, Conn. Const., art. I, § 20 (now amended by Conn. Const., amend. XXI); and (3) the privileges and immunities clause of the federal constitution, U.S. Const., amend. XIV, § 1. The remaining constitutional arguments referred to in the complaint and the motion have been abandoned. Schiavone additionally made it clear that he does not object to the charter's requirement that the mayor "shall reside in the city during the term of office . . . ." New Haven City Charter art. V, § 10 (a). It is, finally, clear from the undisputed facts of the case that Schiavone's argument need not extend to an attack on any durational residency requirement for the office of mayor. As mentioned, Schiavone will have been a legal voter in and resident of the city for over two years at the time of the next mayoral election. His attack is leveled at the five-year requirement contained in article V, § 10 (a) of the charter.

The city, for its part, has agreed that no material facts are in dispute and that all necessary persons have been notified and joined as parties in the action. No motion to strike for nonjoinder or failure to give notice to interested persons has been filed. See Practice Book § 17-56 (c). Although the case has received considerable local publicity, no other person has moved to join the action. Under these circumstances, it is appropriate to consider the legal issues presented.

II STANDING

The city initially contends, without citation of authority, that Schiavone lacks standing to pursue his claim. The city contends that nothing prevents Schiavone from campaigning for the office of mayor and that he will be in no position to litigate against the charter provision in question until such time, if ever, that he is actually elected. This argument is unpersuasive. Our Supreme Court has recently explained that: "Standing is . . . a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate non-justiciable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented.. . . These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury [that the complainant] has suffered or is likely to suffer, in an individual or representative capacity. Such a personal stake in the outcome of the controversy . . . provides the requisite assurance of concrete adverseness and diligent advocacy." (Internal quotation marks omitted.) Connecticut Associated Builders & Contractors v. Hartford, 251 Conn. 169, 178, 740 A.2d 813 (1999). The necessary "personal stake in the outcome of the controversy" manifestly exists here. Running for office is an expensive and time-consuming business. A candidate seeking office not knowing whether he would be eligible to serve if elected would be quixotic indeed. Numerous courts, in cases to be discussed later in this opinion, have considered the merits of durational residency requirement cases brought by would-be candidates. Schiavone has a substantial personal stake in the outcome of this action. This case plainly involves a "hot controversy, with each view fairly and vigorously represented."

The city additionally contends, again without citation of authority, that Schiavone lacks standing to litigate his claim because he was a member of a recent charter revision commission which did not recommend that the durational residency requirement in question be amended. How such membership precludes Schiavone from pressing his claim in court is not explained. The city makes no suggestion that Schiavone himself has at any time supported the provision that he now attacks. Schiavone is not responsible for the creation of the requirement—which, as mentioned, dates from 1897. Such membership in no way reduces Schiavone's stake in the outcome of the controversy. In fact, the city's argument serves to underscore Schiavone's stake in the controversy by citing his involvement in the city's civic and political life. Under these circumstances, it is appropriate to proceed to the merits.

III THE PROBLEM

The problem with the durational residency requirement at issue here is that it reduces the pool of candidates from which the voters may choose in a way that is difficult to justify in a modern democracy. The world has recently witnessed the drama of a political candidate acquiring residence in a new state and subsequently being elected by the voters of that state to the United States Senate in the course of a single calendar year. The New Haven charter provision in question categorically precludes a mayoral version of such a candidacy no matter how worthy the candidate. The charter's classification is difficult to justify either with respect to its "legal voter" requirement or its durational residency requirement.

The charter requires the mayor to have been "a legal voter" in the city for five years. Yet, as the city conceded at argument, there is no requirement that a successful candidate have actually cast a single vote in any of those years. Consider two hypothetical candidates, Smith and Jones. Smith has lived in the city for five years. He has been registered to vote throughout this period but has never bothered to cast a single vote. Jones moved into the city four years ago and has conscientiously voted in every election since. How can the government in a modern democracy say that Smith is qualified to be mayor and Jones is not?

The durational residency requirement is even more arbitrary in its working. Suppose that Smith moved to New Haven from Tibet five years ago. He rents an apartment in New Haven but has commuted to New York every day. Jones, on the other hand, has lived in New Haven for most of his life, but five years ago he moved one block across the border to Hamden and resided there for a year before moving back. Throughout this period, Jones has worked in New Haven every day. Once again, how can the government in a modern democracy say that Smith is qualified to be mayor and Jones is not? More importantly, how can the government in a modern democracy preclude the...