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STEPHANIE O’SHEA v. JACK SCHERBAN ET AL.
(SC 20542)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Kahn, Ecker and Keller, Js.
Syllabus
The plaintiff, who had run in the November, 2020 election to fill a vacant
position on the Board of Education of the City of Stamford, appealed
to the trial court, seeking to compel the defendants, including various
city election officials, to seat her as a member of the board after she
received the most votes for the position and the city determined that
the vacant position had been included on the election ballot in error
and declined to credit the election result. Pursuant to the applicable
provisions (§ C1-80-2 (b) and (c)) of the Stamford charter, the city’s
Board of Representatives appointed the defendant H in February, 2020,
to fill the vacancy until the next biennial election in November, 2021.
In October, 2020, after ballots for the November, 2020 election were
printed and sent to absentee voters, and the plaintiff and other individu-
als had registered as write-in candidates, the city discovered that the
vacant board position had been placed on the ballot in error. City officials
then met with the plaintiff and the other candidates to discuss the city’s
determination that, under § C1-80-2, biennial elections are held in odd
numbered years rather than in even numbered years and that H had
been appointed to fill the vacant position until the next biennial election.
The city further determined that it would be confusing to voters to print
and distribute corrected ballots, given the short period of time before
the election, and, thus, the election for the vacant position proceeded.
The trial court rendered judgment for the defendants, concluding that
the city charter unambiguously provided that H’s appointment by the
Board of Representatives placed her in the vacant position until the
next biennial election in 2021. On appeal, the plaintiff claimed that the
city was required to hold an election in November, 2020, to fill the
vacancy on the board for the balance of the vacated term. She asserted,
inter alia, that the term ‘‘biennial election’’ in § C1-80-2 should be con-
strued to mean ‘‘the next town election’’ and that to construe ‘‘biennial
election’’ to mean elections held in odd numbered years would violate
various provisions of the federal and state constitutions. Held:
1. The plaintiff’s claim that the term ‘‘biennial election’’ in § C1-80-2 should
be construed to mean ‘‘the next town election’’ was unavailing, as that
term refers to elections for vacant positions occurring every other year,
which, in Stamford, are the odd numbered years: although the city
charter did not define ‘‘biennial’’ and § C1-80-2 (c) did not specify
whether the term ‘‘next biennial election’’ means even numbered years
or odd numbered years, it was clear from looking at a related provision
(§ C1-70-1) of the charter, which required elections to occur biennially
beginning in 1953, that biennial elections were to occur in odd numbered
years, and that conclusion was supported by the statutory (§ 9-164 (a))
requirement that municipal elections are to be held biennially; moreover,
the requirement of the city charter’s savings provision (§ C1-40-2) that
the charter be construed in harmony with state statutory law did not
compel the conclusion that the vacant board position was required to be
filled at the next city election, as the relevant statute (§ 9-220) requiring
vacancies to be filled at the next town election or at a special election
allowed for other arrangements ‘‘as otherwise provided by law,’’ and
§ C1-80-2 clearly provided otherwise; furthermore, contrary to the plain-
tiff’s claim, a city charter provision that required a different schedule
for vacancy elections than for regular elections would not yield absurd
or unworkable results, and the doctrine of constitutional avoidance
was inapplicable, as the charter was not genuinely susceptible to two
constructions, and its plain meaning did not raise serious constitu-
tional questions.
2. The plaintiff could not prevail on her claims that the first amendment to
the United States constitution required the city to hold an election for
the vacant board position at the next regularly scheduled city election,
that is, in November, 2020, and that the city’s failure to count and
validate the votes for the position in the 2020 election unconstitutionally
disenfranchised her: the plaintiff failed to clearly articulate a specific
constitutional claim, and, insofar as she claimed that the city charter’s
vacancy election provision, which required skipping the city’s next regu-
larly scheduled election at which a full-term board position would be
on the ballot, was unconstitutional, it was well established that munici-
palities have vast leeway in the management of their internal affairs,
including the flexibility to decide whether members of boards of educa-
tion are elected or appointed; moreover, the federal constitution permits
some delay in the holding of vacancy elections, and the plaintiff pre-
sented no authority to support her assertion that delaying the holding of
a vacancy election until the next biennial election was unconstitutional;
furthermore, the plaintiff’s claim that she would be unconstitutionally
disenfranchised unless the votes were counted and the result honored
was unavailing, as the plain language of the charter made clear that no
valid election could have been held, and this court was aware of no
authority that constitutional principles required this court to validate a
void election.
3. The plaintiff did not demonstrate that the state constitution required
vacant board positions to be filled by an election, as opposed to appoint-
ment, as soon as possible, as the plaintiff advanced no authority and
engaged in no analysis suggesting that the constitutional text or Connect-
icut or federal precedent supported her claim, and the state constitution
contains no provision pertaining to the vacancy at issue.
4. There was no merit to the plaintiff’s claim that the doctrine of municipal
estoppel required the defendants to count the votes that were cast for
the vacant board position: the plaintiff could not show that she would
be subjected to a substantial loss if the votes were not counted because,
under the city charter, there was no election in which she could run
and, thus, no seat to lose; moreover, the plaintiff could not show that
she lacked or had no convenient means of acquiring knowledge of the
true state of things, as she could have avoided any harm that resulted
from her misapprehension of the city charter by reading it or asking
the city for clarification before registering as a write-in candidate, and
the plaintiff had actual knowledge of the true state of affairs in October,
2020, when city officials met with her and other candidates after dis-
covering that the vacant board position had been placed on the ballot
in error.
Argued January 21—officially released July 26, 2021*
Procedural History
Action seeking a writ of mandamus compelling the
defendants to seat the plaintiff as a member of the
Board of Education of the City of Stamford, and for
other relief, brought to the Superior Court in the judicial
district of Stamford-Norwalk, where the court, Gen-
uario, J., granted the motion filed by Joshua A. Esses
to intervene; thereafter, the case was tried to the court;
judgment for the defendants, from which the plaintiff
appealed. Affirmed.
Brenden P. Leydon, for the appellant (plaintiff).
Aaron S. Bayer, with whom was Jenny R. Chou, for
the appellees (named defendant et al.).
Proloy K. Das, with whom was Kevin W. Munn, for
the appellee (defendant Rebecca Hamman).
Maura Murphy Osborne, assistant attorney general,
for the appellee (defendant Denise Merrill).
Joshua A. Esses, self-represented, the appellee (inter-
venor).
Opinion
D’AURIA, J. In this appeal, we must construe a Stam-
ford Charter (charter) provision that controls the filling
of vacancies on the Board of Education of the City of
Stamford (board) and consider claims that, as applied
to the circumstances of this case, both the provision
generally and the actions of election officials specifi-
cally violate the federal and state constitutions. The
plaintiff, Stephanie O’Shea, wanted to run in the Novem-
ber, 2020 election to fill a vacancy on the board and
claims that she in fact ran in that election, won it and
should be serving on the board presently. She brought
suit when the city’s election officials refused to credit
the election results on the ground that the charter pro-
vides that the election to fill the vacancy could not be
held until the ‘‘next biennial election’’ in 2021. Stamford
Charter § C1-80-2 (b). She appeals from the judgment
of the trial court rendered in favor of the defendants,
who are various city election officials and the secretary
of the state.1
The charter contains two provisions that control the
filling of vacancies in elective office. In the first
instance, § C1-80-2 (b) of the charter provides that,
when a vacancy occurs ‘‘in any elective office and no
specific provision for filling such vacancy is made in
this [c]harter, the Board of Representatives shall, within
sixty (60) days following the vacancy, elect a successor
to fill such vacancy until December first following the
next biennial election.’’ Stamford Charter § C1-80-2 (b).
Section C1-80-2 (c) provides in relevant part: ‘‘When
the Board of Representatives has elected a successor
to fill a vacancy in the office of Mayor, on the Board
of Representatives, on the Board of Finance or on the
Board of Education as set forth above in [§] C1-80-2
(b), then and in that event, a vacancy election shall be
held at the next biennial election. . . .’’ Stamford Char-
ter § C1-80-2 (c). On appeal, the plaintiff contends that
we should construe the phrase, ‘‘next biennial election,’’
to mean ‘‘next city election.’’ She also claims that, if
next ‘‘biennial election’’ is held to mean elections held
in odd numbered years, then § C1-80-2 (c) violates the
first amendment to the United States constitution and
article first, §§ 1, 2, 4, 5, 8, 14 and 20, as well as article
sixth, § 4, of the Connecticut constitution. In addition,
the plaintiff argues that the defendants’ actions in refus-
ing to count the votes cast for the vacant position in
November, 2020, were unconstitutional under the first
amendment to the United States constitution. Finally,
she claims that the doctrine of municipal estoppel
should apply to prevent the defendants from refusing
to count the votes.2 We disagree with the plaintiff and,
accordingly, affirm the judgment of the trial court.
The following facts and procedural history, as stipu-
lated by the parties, contained in the record, and found
by the trial court, are relevant to this appeal. The charter
provides for nine board members, with three positions
up for election each year for three year terms. Stamford
Charter § C1-80-5. In November, 2018, voters elected
Frank Cerasoli and two other candidates to three year
positions on the board. The term for Cerasoli’s position
ran from December 1, 2018, through November 30, 2021.
Cerasoli vacated his position in January, 2020. Pursuant
to § C1-80-2 (b) of the charter, in February, 2020, the
city’s Board of Representatives appointed the defendant
Rebecca Hamman to fill the seat Cerasoli vacated, and
she has served in that position since then.
By early October, 2020, ballots were printed for the
November 3, 2020 election. The ballots included offices
for president of the United States, United States repre-
sentative, state senator, state representative, registrar
of voters, three full-term Board of Education positions,
and ‘‘Board of Education To Fill Vacancy for One Year.’’
The board vacancy position did not have any party
endorsed candidates. The ballots were sent to absen-
tee voters.
The plaintiff registered as a write-in candidate for
the board vacancy position on October 5, 2020. Hamman
and the intervenor, Joshua A. Esses, also registered as
write-in candidates. On October 8, 2020, Stamford voter
Eric Rota submitted an absentee ballot that included a
vote for the plaintiff for the board vacancy position.
After questions were raised in the media regarding
whether the ballot should have included the board
vacancy position, the town clerk asked the city’s corpo-
ration counsel, Attorney Kathryn Emmett, for an opin-
ion on whether an election should take place for the
position. On October 16, 2020, the mayor, David R.
Martin, and Attorney Emmett met with the plaintiff, the
party endorsed candidates for the three full-term board
positions, and others. During that meeting, Mayor Mar-
tin discussed Attorney Emmett’s conclusion that, under
the charter, there could be no election for the position
in 2020 and that the position had been included on the
ballot in error. Mayor Martin also discussed the city’s
view that, because overseas and military ballots had
already been printed and mailed, it would be problem-
atic and confusing to voters to print and distribute cor-
rected ballots given the short period of time before the
election.
The same day, Attorney Emmett issued a legal opin-
ion concluding that, under § C1-80-2 of the charter,
‘‘after the Board of Representatives has elected a suc-
cessor to fill the vacancy . . . a vacancy election shall
be held at the next biennial election’’ and that ‘‘biennial
elections are held in odd-numbered years.’’ The opinion
concluded by stating that ‘‘there is currently no one (1)
year term vacancy to fill on the Board of Education
because Rebecca Hamman has been elected by the
Board of Representatives to fill the partial term seat
until the 2021 biennial election.’’
On October 20, 2020, Attorney Emmett participated
in a conference call with Director of Elections Theodore
Bromley and Staff Attorney Aida Carini, both from the
Office of the Secretary of the State (secretary). Bromley
and Attorney Carini informed Attorney Emmett that the
secretary would not require the city to reprint the bal-
lots and that the secretary would not take a position
on whether there was a valid election for the board
vacancy position because that was a question of munici-
pal law. Bromley and Attorney Carini also indicated
that, given Attorney Emmett’s conclusion that there
was no valid election for the position, the secretary
expected that the city would report no election results
for that position.
On October 21, 2020, Mayor Martin and Attorney
Emmett met again with the plaintiff, party endorsed
candidates for the three year positions on the board,
and others. At this meeting, Mayor Martin informed the
participants that the ballots would not be reprinted and
related that the secretary expected that the city would
report no election results for the board vacancy posi-
tion.
On November 5, 2020, the following numbers of votes
for the board vacancy position were reported in the
secretary’s election management system: Esses, 2; Ham-
man, 21; and O’Shea, 578.3 Nonetheless, on November
9, 2020, the city’s head moderator, defendant Jack
Scherban, submitted a final report and certification of
votes to the secretary that did not include any votes
for the position.
The plaintiff brought this action pursuant to General
Statutes § 9-328, claiming that the charter, either by
its terms or by a construction consistent with various
federal and state constitutional provisions, required the
city to hold an election in November, 2020, to fill the
vacancy for the balance of the vacated term. The defen-
dants contended to the contrary that the charter unam-
biguously provides that Hamman’s appointment by the
Board of Representatives filled the vacated position
until November 30, 2021. The trial court held that the
charter provisions clearly and unambiguously provided
that Hamman’s appointment by the Board of Represen-
tatives placed her in the vacancy position until Novem-
ber 30, 2021.
The trial court rendered judgment in favor of the
defendants, and the plaintiff appealed to the Appellate
Court. We then transferred the appeal to this court
pursuant to General Statutes § 51-199 (c) and Practice
Book § 65-1. Following oral argument, we issued a rul-
ing from the bench on January 21, 2021, affirming the
trial court’s judgment. We indicated at that time that a
full opinion would follow. This is that opinion.
I
term ‘‘biennial election’’ in § C1-80-2 of the charter to
mean ‘‘the next town election.’’ We disagree. The term
‘‘biennial election’’ unambiguously refers to elections
occurring every other year, which, in Stamford, are the
odd numbered years.
The plaintiff does not argue that the term ‘‘biennial
election’’ is ambiguous. Rather, she contends that, at
the time the charter was written, the phrases ‘‘biennial
election’’ and ‘‘the next town election’’ were inter-
changeable because the city held no elections in the
intervening years. This fact, she argues, demonstrates
original legislative intent, and we, therefore, should con-
strue the charter consistent with this intent. The plain-
tiff further argues that interpreting ‘‘biennial election’’
to mean ‘‘the next town election’’ is necessary to harmo-
nize the charter with General Statutes § 9-220.4 Finally,
the plaintiff argues that such a construction is necessary
to avoid first amendment and fourteenth amendment
due process concerns. We address each of these claims
in turn, applying General Statutes § 1-2z and our familiar
principles of statutory construction to the charter provi-
sions. See Russo v. Waterbury, 304 Conn. 710, 720,
41 A.3d 1033 (2012). We also apply the same plenary
standard of review to the trial court’s interpretation of
the charter as we would to a court’s construction of a
statute. See Cook-Littman v. Board of Selectmen, 328
Conn. 758, 767–68, 184 A.3d 253 (2018).
We first consider the text of the statute itself and its
relationship to other statutes. See id. The Board of
Representatives’ appointment of Hamman in February,
2020, to fill the seat vacated by Cerasoli implicated § C1-
80-2 (c) of the charter, which provides in relevant part:
‘‘When the Board of Representatives has elected a suc-
cessor to fill a vacancy . . . on the Board of Education
as set forth . . . in [§] C1-80-2 (b), then and in that
event, a vacancy election shall be held at the next bien-
nial election. . . .’’ (Emphasis added.) The charter
does not define the word ‘‘biennial.’’ General Statutes
§ 1-1 (a) directs us to construe words that are not statu-
torily defined according to their commonly approved
usage. State v. Menditto, 315 Conn. 861, 866, 110 A.3d
410 (2015). Dictionaries in print at the time of a provi-
sion’s enactment are most instructive. Id. Webster’s
defines ‘‘biennial’’ as ‘‘[h]appening, or taking place, once
in two years.’’ Webster’s New International Dictionary
(2d Ed. 1953) p. 265; see also Black’s Law Dictionary
(4th Ed. 1968) p. 206 (defining ‘‘biennially’’ as ‘‘once in
every two years’’).
Because § C1-80-2 (c) does not specify whether the
charter’s use of the phrase ‘‘next biennial election’’
means even numbered or odd numbered years, we look
to related charter provisions for guidance. See Studer v.
Studer, 320 Conn. 483, 489, 131 A.3d 240 (2016) (related
statutory provisions often provide guidance in deter-
mining meaning of particular word). Section C1-70-1 of
the charter provides in relevant part that, ‘‘[e]xcept
as hereinafter provided, on the Tuesday after the first
Monday in November, 1953 and biennially thereafter,
there shall be held in Stamford an election to elect
officers. . . .’’5 (Emphasis added.) Because the first
biennial election in Stamford was held in 1953, an odd
numbered year, it is clear that successive biennial elec-
tions would also occur in odd numbered years.
Although the text of the charter itself is sufficient to
establish that biennial elections in the city are held
every other year in odd numbered years, this conclusion
is further supported by General Statutes § 9-164 (a),
which provides in relevant part: ‘‘Notwithstanding any
contrary provision of law, there shall be held in each
municipality, biennially, a municipal election . . . [in]
the odd-numbered years . . . .’’ See Fay v. Merrill, 336
Conn. 432, 446, 246 A.3d 970 (2020) (§ 1-2z instructs us
to consider text of statute and its relationship to other
statutes). Although § 9-164 does not require municipali-
ties to hold municipal elections biennially in odd num-
bered years, that is the legislature’s default arrange-
ment, and the charter contains no contrary provision
but instead contains a provision that is consistent with
§ 9-164. Therefore, in the present case, the vacancy
election for the board position would properly be held
in November, 2021—not in November, 2020, as the
plaintiff argues and the city originally planned.
The plaintiff is correct that, at the time of the adoption
of § C1-70-1, city elections were held only biennially,
in odd numbered years. In 1969, the city moved to
annual elections for board positions, with three of the
nine board members elected each year to staggered
three year terms. See 34 Spec. Acts 74, No. 96 (1969).
Therefore, the city now also holds elections in the
intervening even numbered years for full-term board
positions. The plaintiff argues that this fact demon-
strates an intent that, as used in the charter, ‘‘biennial’’
means ‘‘the next town election.’’ As our analysis makes
clear, however, § C1-80-2, read together with § C1-70-
1, unambiguously provides that elections for vacant
positions on the board are held at the next biennial
election, which is held only in odd numbered years.
Because the charter is clear on this point, we do not
consider circumstances surrounding the provision’s
enactment. See, e.g., State v. Rupar, 293 Conn. 489,
510–11, 978 A.2d 502 (2009).
Nevertheless, the plaintiff argues that the charter’s
savings provision, § C1-40-2,6 when read together with
§ 9-220,7 compels the opposite conclusion. Specifically,
she contends that, because § 9-220 provides that the
city ‘‘shall, except as otherwise provided by law, fill the
vacancy [in elective office] at the next town election
or at a special election called for such purpose,’’ and
because the savings provision requires the city to con-
strue state statutes in harmony with the charter provi-
sions, the city must fill the vacant board position at the
next town election, not at the next biennial election.
This argument ignores the phrase, ‘‘except as otherwise
provided by law,’’ in § 9-220. Section C1-80-2 clearly
provides otherwise; that is, vacancy positions for the
board are to be held at the next biennial election. There
is no conflict between the charter and § 9-220.
The plaintiff argues, however, that, even if § C1-80-2
is plain and unambiguous, its plain meaning leads to
an absurd result. She makes much of the fact that board
members are the only officers elected to staggered three
year terms8 and that, in the absence of a vacancy, board
elections are held annually with three board positions
up for election each year.9 Because the city already
holds elections for the board each year, the plaintiff
argues, it is ‘‘absurd and unworkable’’ to limit vacancy
elections to the board to biennial election years. We
disagree. Vacancy elections differ from regular elec-
tions, in part because, on average, vacancies occur less
frequently, and it is not always possible to predict when
a vacancy will occur. A charter provision that responds
to these considerations by requiring a different schedule
for vacancy elections than for regular elections does
not yield absurd or unworkable results.
Finally, the plaintiff argues that the city’s interpreta-
tion of the charter raises first and fourteenth amend-
ment due process issues and that the doctrine of consti-
tutional avoidance therefore requires us to interpret
‘‘biennial election’’ as meaning ‘‘the next town election.’’
Under the doctrine of constitutional avoidance, ‘‘[a]
statute must be construed, if fairly possible, so as to
avoid not only the conclusion that it is unconstitutional,
but also grave doubts upon that score.’’ United States
v. Jin Fuey Moy, 241 U.S. 394, 401, 36 S. Ct. 658, 60 L.
Ed. 1061 (1916). The United States Supreme Court has
held, however, that, to apply this doctrine, ‘‘the statute
must be genuinely susceptible to two constructions
after, and not before, its complexities are unraveled.’’
(Emphasis added.) Almendarez-Torres v. United States,
523 U.S. 224, 238, 118 S. Ct. 1219, 140 L. Ed. 2d 350
(1998). This court has similarly held that it will apply
the doctrine of constitutional avoidance ‘‘[i]f literal con-
struction of a statute raises serious constitutional ques-
tions . . . .’’ (Emphasis added.) Sassone v. Lepore, 226
Conn. 773, 785, 629 A.2d 357 (1993). As we discuss in
parts II and III of this opinion, the plaintiff has not
clearly articulated why the charter’s plain meaning
raises a risk of serious constitutional infirmity. There-
fore, because we do not find the charter genuinely sus-
ceptible to two constructions, or that its plain meaning
raises serious constitutional questions, we find the doc-
trine of constitutional avoidance inapplicable.
II
The plaintiff next claims that a charter provision lim-
iting vacancy elections to odd numbered years violates
the first amendment to the United States constitution,
as applied to the states through the due process clause
of the fourteenth amendment.10 The plaintiff also claims
that the city’s failure to validate the votes cast in Novem-
ber, 2020, disenfranchises her. We address these claims
in turn.
The constitutionality of a charter provision, as with
statutes, presents a question of law over which our
review is plenary. A validly enacted statute or charter
provision carries with it a strong presumption of consti-
tutionality, and we will indulge every presumption in
favor of its constitutionality and sustain it unless its
invalidity is clear. The plaintiff thus must sustain the
heavy burden of proving the statute’s unconstitutional-
ity beyond a reasonable doubt. See, e.g., Doe v. Hartford
Roman Catholic Diocesan Corp., 317 Conn. 357, 405,
119 A.3d 462 (2015).
A
To the extent the plaintiff challenges the constitution-
ality of the charter provision on its face, she has not
clearly articulated a specific constitutional claim or pro-
vided sufficient analysis or relevant authority to support
her claim.11 Insofar as the plaintiff argues that it is
unconstitutional for the charter’s vacancy election pro-
vision to require skipping the city’s next regularly sched-
uled election at which a full-term board position would
be on the ballot, it is well established that a municipal
government has ‘‘vast leeway in the management of its
internal affairs.’’ Sailors v. Board of Education, 387
U.S. 105, 109, 87 S. Ct. 1549, 18 L. Ed. 2d 650 (1967).
This leeway generally includes the ability to decide
whether local officers are appointed or elected.12 Id.,
111. Therefore, it is not surprising to find that Connecti-
cut law provides municipalities the flexibility to decide
whether members of local boards of education are
elected or appointed.13 See General Statutes § 9-185
(‘‘Unless otherwise provided by special act or charter
. . . members of boards of education . . . shall be
elected’’ (emphasis added)); see also Cheshire v.
McKenney, 182 Conn. 253, 259, 438 A.2d 88 (1980) (local
boards of education ‘‘are either elected by local constit-
uencies; General Statutes § 9-203; or, pursuant to the
town charter, are appointed by an elected officer or
body of the municipality’’). New Haven is an example
of a municipality that has taken advantage of this flexi-
bility. See New Haven Charter, tit. I, art. VII, § 3 (A) (2)
(‘‘the Board of Education shall consist of seven (7)
members as follows: the Mayor, four (4) members
appointed by the Mayor, subject to approval by the
Board of Alders; and two (2) elected by district’’). There-
fore, the plaintiff’s argument founders at its premise:
there is no right to the direct election of members of
a local board of education in Connecticut at all, let
alone a right to have a vacancy election conducted at
the earliest possible election.
It is also well settled that, when vacant offices are
in fact filled by election, the federal constitution permits
some delay in the holding of vacancy elections. In
Rodriguez v. Popular Democratic Party, 457 U.S. 1,
102 S. Ct. 2194, 72 L. Ed. 2d 628 (1982), the United
States Supreme Court upheld a statute allowing the
governor of Puerto Rico to appoint an interim replace-
ment to fill a vacant seat in the Puerto Rico House of
Representatives until the next general election. See id.,
3, 14. In Rodriguez, a member of the Puerto Rico legisla-
ture died in January, 1981, less than three months after
his election. Id., 3. The plaintiffs in Rodriguez claimed
that they had a federal constitutional right to a special
vacancy election held before the next general election
and that the interim appointment process set forth in
the commonwealth’s statutes violated their right of
association under the first amendment. Id., 7. The court
held against the plaintiffs. See id., 14.
In arriving at its decision, the court in Rodriguez
relied on the reasoning of another vacancy election
case, Valenti v. Rockefeller, 292 F. Supp. 851 (S.D.N.Y.
1968), aff’d, 393 U.S. 405, 89 S. Ct. 689, 21 L. Ed. 2d 635
(1969), and aff’d sub nom. Phillips v. Rockefeller, 393
U.S. 406, 89 S. Ct. 693, 21 L. Ed. 2d 636 (1969), and aff’d
sub nom. Backer v. Rockefeller, 393 U.S. 404, 89 S. Ct.
693, 21 L. Ed. 2d 635 (1969). See Rodriguez v. Popular
Democratic Party, supra, 457 U.S. 10–12. Valenti involved
a seventeenth amendment challenge to a New York
state law requiring a vacant United States Senate posi-
tion to be filled not at the next election but at the
next election in an even numbered year. Valenti v.
Rockefeller, supra, 853. In Valenti, the court held that
New York was not required to hold an election in either
1968 or 1969 for a vacancy that occurred in 1968, and
that the state law requiring the vacancy election to wait
until 1970 was constitutional. Id., 853–54.
In relying on the reasoning in Valenti, the court in
Rodriguez explained: ‘‘[T]he fact that the [s]eventeenth
[a]mendment permits a [s]tate, if it chooses, to forgo
a special election in favor of a temporary appointment
to the United States Senate suggests that a state is
not constitutionally prohibited from exercising similar
latitude with regard to vacancies in its own legislature.
We discern nothing in the [f]ederal [c]onstitution that
imposes greater constraints on the [c]ommonwealth of
Puerto Rico.
‘‘The [c]ommonwealth’s choice to fill legislative
vacancies by appointment rather than by a full-scale
special election may have some effect on the right of
its citizens to elect the members of the Puerto Rico
[l]egislature; however, the effect is minimal, and like
that in Valenti, it does not fall disproportionately on
any discrete group of voters, candidates, or political
parties. . . . Moreover, the interim appointment sys-
tem plainly serves the legitimate purpose of ensuring
that vacancies are filled promptly, without the necessity
of the expense and inconvenience of a special election.
The [c]onstitution does not preclude this practical and
widely accepted means of addressing an infrequent
problem.’’ (Citation omitted.) Rodriguez v. Popular
Democratic Party, supra, 457 U.S. 11–12.
Here, the plaintiff appears to argue that the first
amendment requires the city to hold an election for a
vacant board position at the next regularly scheduled
city election, in this case the November, 2020 election
during which three full-term board positions were also
on the ballot. It is true that the charter provision in
this case differs from the statute at issue in Rodriguez
because, in Rodriguez, no regularly scheduled election
passed before the vacancy was filled. See generally id.
Rather, the court in Rodriguez held that no special
election was constitutionally required. Id., 12. In Valenti,
however, the statute that was upheld required voters
to wait through two more regularly scheduled elections
before casting a vote to fill the vacancy. Valenti v.
Rockefeller, supra, 292 F. Supp. 855. Although it is true
that Valenti involved the seventeenth amendment,
which is not at issue in this case, considered together,
Rodriguez and Valenti (neither of which the plaintiff
has considered in her brief) strongly suggest that it
does not violate the federal constitution to delay the
holding of a vacancy election until the ‘‘next biennial
election.’’ The plaintiff has presented us with no author-
ity, and this court is aware of none, holding such a
provision to be unconstitutional in the thirty-nine years
since Rodriguez.14
B
To the extent the plaintiff claims that the federal
constitution entitles her to have the votes counted and
the void election validated, we disagree. The plaintiff
claims that, even if the charter itself is not constitution-
ally infirm, the constitution requires that the votes in
the election that the city declared void must be counted
and the outcome honored because (1) the city having
placed the position on the ballot, votes were actually
cast for that position, and (2) there was an established
past practice of holding vacancy elections in even num-
bered years.
As discussed in part I of this opinion, the plain lan-
guage of the charter means that no valid vacancy elec-
tion for the board position at issue could have been
held in November, 2020. ‘‘[T]he right or power to hold
an election must be based on authority conferred by
law, and an election held without affirmative constitu-
tional or statutory authority, or contrary to a material
provision of the law, is a nullity, even though it is fairly
and honestly conducted.’’ 29 C.J.S. 135–36, Elections
§ 127 (2005). ‘‘A court lacks jurisdiction to authorize or
compel the holding of a void election.’’ Id., p. 136.
It is unfortunate that votes were cast for the position
that appeared on the ballot in error, but this fact does
not mean that an election for the board vacancy position
appropriately took place. Similarly, the fact that the
votes cast were initially reported in the secretary’s elec-
tion management system does not mean that an election
for the position took place.15 The plaintiff has not pre-
sented us with any authority, and we are aware of none,
suggesting that constitutional principles require us to
validate a void election.
The plaintiff argues that, to avoid unconstitutionally
disenfranchising her, the votes cast should be counted
and the outcome of the ‘‘election’’ honored. She cites
several cases in support of this position: Roe v. Ala-
bama, 68 F.3d 404 (11th Cir. 1995), Griffin v. Burns,
570 F.2d 1065 (1st Cir. 1978), Briscoe v. Kusper, 435
F.2d 1046 (7th Cir. 1970), Hoblock v. Albany County
Board of Elections, 487 F. Supp. 2d 90 (N.D.N.Y. 2006),
and Williams v. Sclafani, 444 F. Supp. 906 (S.D.N.Y.),
aff’d sub nom. Williams v. Velez, 580 F.2d 1046 (2d Cir.
1978). Each of those cases indeed involved rulings by
election officials that resulted in the rejection of ballots
cast. The difference, however, is that each of those
cases involved a valid election or primary election.16
Here, by contrast, the election itself was void. We agree
with the trial court that, when ‘‘the charter specifies
the method for filling vacancies, that method cannot
be changed by a mistake of an election official. If the
charter does not authorize an election, then an election
cannot be held.’’
In fact, it would disenfranchise the city’s voters, who
adopted the charter, to count the ballots cast in the
void election and disregard the provisions of the charter
directing that vacancies must be filled at a biennial
election held in odd numbered years. ‘‘[T]he electors
have not been deprived of their opportunity to partici-
pate in the democratic process with respect to the pro-
cedure for filling a vacancy because, [a]s the source of
a municipality’s powers, charters are generally adopted
and amended at a referendum by the municipality’s
electors.’’ (Internal quotation marks omitted.) Cook-
Littman v. Board of Selectmen, supra, 328 Conn. 779.
Validating a void election would also disenfranchise the
many voters who opted not to cast any vote in the
election in reliance on the city’s announcement of its
correct conclusion that the position had been placed
on the ballot in error.17
This analysis is consistent with our recent decision
in Cook-Littman, in which the trial court, construing
the charter of the town of Fairfield, ordered the town
to conduct a special election to fill a vacant seat on the
Board of Selectmen that already had been filled by
appointment. Id., 762, 764–65. This court reversed the
trial court’s judgment, holding that the special election
was invalid and that the trial court could not substitute
its own ideas for a clear expression of legislative will.
See id., 779. By the time the case had come before this
court, the special election the trial court had ordered
already had been held, and the winner of that election
had replaced the person appointed to fill the vacancy.
Id., 765–66. Because the election was never valid, how-
ever, this court held that the appointee was entitled
to reinstatement. Id., 779. Although no constitutional
claims were raised in Cook-Littman, that case makes
clear that following the express terms of a charter
adopted by the voters does not result in disenfranchise-
ment.
The parties’ stipulation that a board vacancy election
was held in Stamford in 2016 does not change our analy-
sis. The plaintiff contends that this creates an ‘‘estab-
lished past practice’’ and appears to argue that, if a city
violated its charter in the past, it must continue to do
so going forward. But a void election is a void election,
regardless of whether it is the result of a onetime mis-
take by an election official or a similar past mistake.
The confusion the city’s error caused is regrettable.
But neither the fact that the city held another vacancy
election in 2016 nor the fact that some voters cast absen-
tee ballots in the 2020 election changes the fact that
there was no valid election for the board vacancy posi-
tion, and, thus, no voters were disenfranchised by the
city’s failure to count and certify the votes cast.
III
The plaintiff next claims that, even if the charter
provision does not violate the federal constitution, it
conflicts with the greater protections afforded by the
Connecticut constitution. The defendants contend that
the charter provision has a legitimate governmental
purpose—to have a single process for filling vacancies,
regardless of the office—and that there is no state con-
stitutional principle that provides that vacancies must
be filled by election as soon as possible. We conclude
that the plaintiff has not demonstrated that the Connect-
icut constitution affords greater protections under the
facts of this case.
As in part II of this opinion, our review of whether
a charter provision violates the state constitution is
plenary. See, e.g., Doe v. Hartford Roman Catholic
Diocesan Corp., supra, 317 Conn. 405. In State v.
Geisler, 222 Conn. 672, 684–85, 610 A.2d 1225 (1992),
‘‘we identified six nonexclusive tools of analysis to be
considered, to the extent applicable, whenever we are
called on as a matter of first impression to define the
scope and parameters of the state constitution: (1) per-
suasive relevant federal precedents; (2) historical insights
into the intent of our constitutional forebears; (3) the
operative constitutional text; (4) related Connecticut
precedents; (5) persuasive precedents of other states;
and (6) . . . relevant public policies.’’ (Internal quota-
tion marks omitted.) State v. McCleese, 333 Conn. 378,
387, 215 A.3d 1154 (2019). ‘‘It is not critical to a proper
Geisler analysis that we discuss the various factors in
any particular order or even that we address each fac-
tor.’’ Id., 388.
As for the Geisler factors concerning constitutional
text, federal and Connecticut precedents and public
policy, the plaintiff has primarily recited unhelpful tru-
isms—that the state constitution in some contexts pro-
vides Connecticut citizens greater protection than the
federal constitution. The plaintiff does not engage in
any real analysis suggesting that the constitutional text,
Connecticut precedent, or federal precedent supports
an enhanced state constitutional right. As discussed in
part II of this opinion, we conclude that federal prece-
dent does not support the plaintiff’s claim. The plaintiff
does not address our state constitutional history at all,
except to say that ‘‘the intent of our constitutional fore-
bears to protect these fundamental, foundational rights
is made clear by the sheer number of overlapping appli-
cable rights set forth in the Connecticut constitution.’’
With respect to authority from other jurisdictions, the
plaintiff cites numerous out-of-state cases in support
of her argument that the state constitution requires
vacancy positions to be filled by election—as opposed
to by appointment—as soon as possible. We do not find
any of these cases to be persuasive. Most come from
states with constitutional provisions that expressly
address vacancy elections and require that vacancies
be filled in a particular way or within a particular time
frame. See Bolin v. Superior Court, 85 Ariz. 131, 137–38,
333 P.2d 295 (1958); State v. Highfield, 34 Del. 272,
283–84, 152 A. 45 (1930); Roher v. Dinkins, 32 N.Y.2d
180, 184–86, 298 N.E.2d 37, 344 N.Y.S.2d 841 (1973);
Rodwell v. Rowland, 137 N.C. 617, 618, 50 S.E. 319
(1905); State ex rel. Whitney v. Johns, 3 Or. 533, 534–35
(1869); Commonwealth v. Maxwell, 27 Pa. 444, 449
(1856).18 Our constitution contains no such provision
pertaining to the vacancy at issue in this case. And in
State ex rel. Harsha v. Troxel, 125 Ohio St. 235, 237–38,
181 N.E. 16 (1932), another case on which the plaintiff
relies, the applicable statute contained no mechanism
for filling a vacancy by appointment, which meant that
the position would remain completely unfilled in the
absence of a vacancy election.
The plaintiff advances no authority, and we are aware
of none, indicating that any of the Geisler factors sup-
port her claim that the state constitution provides
greater protection than the federal constitution under
the facts of this case.
IV
Finally, the plaintiff claims that the doctrine of munic-
ipal estoppel requires the defendants to count the votes
cast because the vacant position appeared on the ballot
for the November, 2020 election. Specifically, she
argues that she detrimentally relied on the position’s
appearance on the ballot by filing the proper forms to
register as a write-in candidate and undertaking the
effort to run a race for the vacant position. We disagree
that municipal estoppel can be used to validate a void
election.
‘‘[F]or a court to invoke municipal estoppel, the
aggrieved party must establish that: (1) an authorized
agent of the municipality had done or said something
calculated or intended to induce the party to believe
that certain facts existed and to act on that belief; (2)
the party had exercised due diligence to ascertain the
truth and not only lacked knowledge of the true state
of things, but also had no convenient means of acquiring
that knowledge; (3) the party had changed its position
in reliance on those facts; and (4) the party would be
subjected to a substantial loss if the municipality were
permitted to negate the acts of its agents.’’ (Internal
quotation marks omitted.) Levine v. Sterling, 300 Conn.
521, 535, 16 A.3d 664 (2011). The party claiming estoppel
has the burden of proof. Id. ‘‘Whether that burden has
been met is a question of fact that will not be overturned
unless it is clearly erroneous.’’ (Internal quotation
marks omitted.) Id.
The trial court did not address the plaintiff’s munici-
pal estoppel claim in its memorandum of decision,
although both parties briefed the issue before the trial
court. Because the issue of whether the plaintiff has
met her burden is a question of fact and the trial court
did not make such a finding, under ordinary circum-
stances, we might consider whether a remand to or an
articulation by the trial court would be required. See
Practice Book § 61-10 (b); Russo v. Waterbury, supra,
304 Conn. 737. However, ‘‘[t]here are times . . . when
the undisputed facts or uncontroverted evidence and
testimony in the record make a factual conclusion inevi-
table so that a remand to the trial court for a determina-
tion would be unnecessary.’’ (Internal quotation marks
omitted.) Russo v. Waterbury, supra, 737. In the present
case, a remand would be pointless because the trial
court could reach only one conclusion—that the estop-
pel claim fails. First, as previously discussed, under the
present circumstances, there was no valid election. The
plaintiff cannot show that she would be subjected to a
substantial loss in this case because, under the charter,
there was no election in which she could run. Therefore,
there was no seat to lose. In addition, the plaintiff can-
not show that she ‘‘lacked knowledge of the true state
of things’’ or had ‘‘no convenient means of acquiring
that knowledge . . . .’’ (Internal quotation marks omit-
ted.) Levine v. Sterling, supra, 300 Conn. 535. Although
it is true that eleven days passed between the time
when the plaintiff registered as a write-in candidate and
when she met with city officials to discuss the error,
had the plaintiff exercised due diligence by reading
the charter or asking the city for clarification before
registering as a write-in candidate, she could have
avoided any harm resulting from her misapprehension
of the charter. The intervenor in this case, who appears
to have been the first to discover and report on the
ballot error in an October 9, 2020 blog post, did exactly
that. Finally, the plaintiff also had actual knowledge of
the true state of affairs no later than October 16, 2020,
when Mayor Martin and Attorney Emmett met with the
plaintiff after discovering that the position had been
placed on the ballot in error. Because the plaintiff has
failed to sustain her burden of establishing a necessary
element of municipal estoppel, we reject this claim.
The judgment is affirmed.
In this opinion the other justices concurred.
* July 26, 2021, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
The defendants are Lucy F. Corelli, in her official capacity as Republican
registrar of voters; Ronald Malloy, in his official capacity as Democratic
registrar of voters; Lyda Ruijter, in her official capacity as city and town
clerk; Jack Scherban, in his official capacity as head moderator; and Denise
Merrill, secretary of the state. The defendant Rebecca Hamman, in her
official capacity as a member of the board, filed a separate brief. Intervenor
Joshua A. Esses, who registered as a write-in candidate, also filed a separate
brief. We refer in this opinion to Corelli, Malloy, Ruijter, Scherban and
Merrill as the defendants, and to Hamman individually by name.
2
The plaintiff also claims that the defendant Rebecca Hamman, a member
of the board, and the intervenor, Joshua A. Esses, both write-in candidates
for the vacant position that was placed on the ballot, are barred from seeking
to void an election in which they participated. Because other claims by the
plaintiff are dispositive, we do not reach this issue.
3
The four candidates for the three full-term board seats on the ballot
received between 22,190 and 35,252 votes each.
4
General Statutes § 9-220 provides: ‘‘If any town office in any town is
vacant from any cause, such town, if such office is elective, shall, except
as otherwise provided by law, fill the vacancy at the next town election or
at a special election called for such purpose in accordance with the provi-
sions of section 9-164, but, until such vacancy is so filled, it shall be filled
by the selectmen. The selectmen shall fill all vacancies in offices to which
they have the power of appointment.’’
5
Section C1-80-1 of the Stamford Charter provides that members of the
board are elective officers.
6
Section C1-40-2 of the Stamford Charter provides in relevant part: ‘‘Noth-
ing contained in this Act shall be construed to repeal or terminate any
statute of the State or ordinance of the City or any rule or regulation of
any City Board, Commission, Department, Agency, or Authority. They shall
remain in full force and effect, within the territorial limits of the City when
not inconsistent with the provisions of this Charter, to be construed and
operated in harmony with its provisions, until amended or repealed as herein
provided. . . .’’
7
See footnote 4 of this opinion.
8
Section C1-70-3 of the Stamford Charter provides: ‘‘The terms of office
of elective officers hereunder shall commence on the first day of December
succeeding the election. The term of office of the Town and City Clerk shall
be four (4) years; the City Constables shall be two (2) years and, commencing
with the biennial election of 2013, the term of office for City Constables
shall be four (4) years; the terms of office of the members of the Board of
Representatives and the Mayor shall be four (4) years commencing, in
accordance with Section C1-40-3 hereof, with the biennial election of 1997.
The term of office of each member of the Board of Finance and of the
Registrars of Voters shall be four (4) years. The term of office of each
member of the Board of Education shall be three (3) years.’’
9
Section C1-80-5 (a) of the Stamford Charter provides in relevant part:
‘‘Except as otherwise provided in [Section] C1-80-2 as to the filling of a
vacancy, at each annual election, any political party may nominate not more
than three candidates for membership on the Board of Education, to hold
office for a three-year term, commencing on December first following the
election. . . .’’
10
To the extent the plaintiff raises fourteenth amendment due process or
equal protection claims, they are inadequately briefed and we therefore do
not consider them. See State v. Buhl, 321 Conn. 688, 728–29, 138 A.3d
868 (2016).
11
When pressed at oral argument before this court, the plaintiff’s appellate
counsel stated that the specific constitutional violation was ‘‘depriving citi-
zens of a right to representation.’’ We do not find this to be a clearly
articulated constitutional claim.
12
In Sailors, the court held that the board of education was a nonlegislative
body and that there was no constitutional reason why board members could
not be appointed rather than elected. Sailors v. Board of Education, supra,
387 U.S. 108. Although the court did not expressly consider whether the
rule would also apply to legislative bodies; id., 109–10; the plaintiff does
not argue that Connecticut boards of education are legislative bodies, and
our case law strongly suggests that they are not. See Stratford v. State
Board of Mediation & Arbitration, 239 Conn. 32, 49, 681 A.2d 281 (1996)
(local board of education was not ‘‘legislative body of the municipal
employer’’ because, ‘‘[a]lthough a local board of education has an important
role in setting educational policy, its responsibilities do not customarily
encompass the enactment of ordinances’’ (internal quotation marks omit-
ted)).
13
Local boards of education are creatures of the state, authorized by
statute. See General Statutes § 10-218 et seq.; see also General Statutes §§ 9-
203 through 9-206a. However, ‘‘the powers of local boards of education are
not defined only by state statute, and . . . a local charter may limit the
powers of the local board of education [when] its provisions are ‘not inconsis-
tent with or inimical to the efficient and proper operation of the educational
system otherwise entrusted by state law to the local boards.’ ’’ Cheshire v.
McKenney, 182 Conn. 253, 259, 438 A.2d 88 (1980).
14
Because we conclude that the plaintiff has not advanced a serious
challenge to the constitutionality of the charter provision by providing
authority in support of her claim that the constitution demands that the
city fill the vacancy at the next election, we also decline to analyze the
provision under either the strict scrutiny standard of review or the Anderson-
Burdick balancing test, which demands an analysis of competing interests
that the plaintiff fails to provide. See Burdick v. Takushi, 504 U.S. 428, 434,
112 S. Ct. 2059, 119 L. Ed. 2d 245 (1992); Anderson v. Celebrezze, 460 U.S.
780, 789, 103 S. Ct. 1564, 75 L. Ed. 2d 547 (1983); see Burdick v. Takushi,
supra, 434 (‘‘[a] court considering a challenge to a state election law must
weigh ‘the character and magnitude of the asserted injury to the rights
protected by the [f]irst and [f]ourteenth [a]mendments that the plaintiff
seeks to vindicate’ against ‘the precise interests put forward by the [s]tate
as justifications for the burden imposed by its rule,’ taking into consideration
‘the extent to which those interests make it necessary to burden the plain-
tiff’s rights’ ’’).
15
Although we ultimately agree with the defendants in the present case
that an election should not have been held and that the race should not
have appeared on any ballots, until the trial court and, ultimately, this court
ruled on the matter, this outcome was not clear. When the validity of an
election is unclear, the wisest course would be for the head moderator to
include the disputed votes for the vacant position in his final report to the
secretary of the state. Although reporting votes cast in a void election might
not be required by statute, at the time the votes were reported, there was
no legally conclusive decision that the election was void. That determination
is made today, when this opinion is officially released. As a result, the votes
should be recorded for historical purposes and to assist courts in the event of
a challenge to the validity of the election or any ruling of an election official.
16
For example, in Hoblock, the issue was the rejection of absentee ballots
that were cast but subsequently rejected in a valid election. Hoblock v. Albany
County Board of Elections, supra, 487 F. Supp. 2d 97–98. The absentee
ballots issued to voters were invalid; id., 95; but the underlying election was
valid. Id., 98. In Griffin, the issue was the rejection of all absentee ballots
cast in a valid primary election. Griffin v. Burns, supra, 570 F.2d 1074. Roe
v. Alabama, supra, 68 F.3d 405, also involved contested absentee ballots in
an otherwise valid election. In Briscoe, the issue was the invalidation of
nominating petitions, signed in a previously acceptable way, after election
officials had adopted new regulations without prior publication or an oppor-
tunity for candidates to respond when an election official invalidated any
signature. Briscoe v. Kusper, supra, 435 F.2d 1054–55. Similarly, Williams
v. Sclafani, supra, 444 F. Supp. 909, involved the validation of designating
petitions required for placement on a primary ballot.
17
The candidates for the full-term board positions properly on the ballot
received more than 22,000 votes each. The plaintiff, who received the highest
number of votes for the vacant position that appeared on the ballot, received
578 votes.
18
In State ex rel. Toledo v. Lucas County Board of Elections, 95 Ohio
St. 3d 73, 76–78, 765 N.E.2d 854 (2002), the court followed the applicable
provisions of the city charter of Toledo, Ohio, holding that those provisions
were not in conflict with the Ohio constitution.