Opinion
No. CV-09-4011742
October 29, 2009
MEMORANDUM OF DECISION
The defendants have filed two motions challenging the plaintiffs' action. The defendants move to dismiss the complaint claiming that the plaintiffs lack standing to maintain the action. Additionally, the defendants move for summary judgment on the first count claiming that there are no genuine issues of material fact and that they are entitled to judgment as a matter of law.
Because the motion to dismiss raises an issue as to the court's subject matter jurisdiction, the court will first consider that motion. St. George v. Gordon, 264 Conn. 538, 544, 825 A.2d 90 (2003); Sadloski v. Manchester, 228 Conn. 79, 84, 634 A.2d 888 (1993) ("A possible absence of subject matter jurisdiction must be addressed and decided whenever the issue is raised . . . The trial court . . . should not have considered the merits of the plaintiff's case without having first made a finding about whether she had standing and, consequently, whether the court had subject matter jurisdiction." (Citations omitted)), on appeal after remand, 235 Conn. 637, 668 A.2d 1314 (1995). The motion to dismiss requires the court to determine whether the plaintiffs, Leonard I'Anson and Francis Nicoll, have standing to maintain their action in which they seek, among other things, to have declared null and void the actions of the Charter Revision Commission ("Commission") formed by The Morningside Association (hereinafter "Association"), including the amended charter effective in 2009. The plaintiffs principally assert that the improper actions of the Commission have denied them the right to vote in matters affecting, and to run for office in, the Association, and seek relief that includes an order that new elections be held under the previous 1972 charter.
The parties do not dispute the facts material to the court's determination of the defendant's motion to dismiss. The plaintiffs commenced this action against the defendants by service of a writ of summons and complaint on June 2, 2009. The action alleges procedural improprieties in amending the charter pertaining to the Association, which is a residential improvement and special taxation district located in Milford, Connecticut. The defendants are the officers who were elected to the Executive Board ("Board") of the Association at its annual meeting on May 30, 2009. Specifically, they are (1) Axel Kirstein, Clerk; (2) Ann Moore, Secretary; (3) Gary Koch, President; and (4) Robert Weitzel, Vice-President. The Board is the governing body of the Association.
The plaintiffs' complaint contains two counts. The first count, entitled "Violation of state charter revision statutes," challenges the Board's actions in amending the Association's charter, which amendment became effective on January 1, 2009. The plaintiffs agree that the Association, pursuant to General Statutes § 7-328a, previously elected to make amendments to its charter subject to home rule action. The plaintiffs claim that the Board failed to appoint the Commission in accordance with the provisions of General Statutes § 7-190 and, therefore, the actions of the Board and the Commission are invalid and the amended charter promulgated as a result of their actions is null and void. The second count of the plaintiffs' complaint seeks a determination as to whether article four of the Association's 2009 charter denies the plaintiffs and others similarly situated equal protection of the law in violation of the fourteenth amendment to the United States constitution and further in violation of the constitution of Connecticut, article sixth, §§ 1 and 4. The plaintiffs claim that article four of the amended charter "requires that a `qualified voter' be the owner of land within the limits of the Association of `no less than a 50 [percent] share.'" As a result, count two asserts that, for purposes of determining voting eligibility, the amended charter treats those residents who own at least a fifty (50) percent share of land within the Association differently than those residents who do not own at least a fifty (50) percent share of land. The plaintiffs are residents of the Association whose property is owned by trusts of which they are beneficiaries. Consequently, the plaintiffs, individually, do not own at least fifty percent of their land. Rather, as will be discussed, the trustees named in their respective trusts are the owners. The plaintiffs claim that these ownership restrictions unconstitutionally deny them the right to vote. Additionally, the second count alleges the defendants violated the plaintiffs' constitutional rights because, as amended, the Association's charter awards votes on the basis of the number of properties owned within the Association's boundaries, as established by the tax list of the City of Milford. Thus, the plaintiffs assert in the second count that several residents who own multiple properties in the Association are entitled to more than one vote while other residents are entitled to only one vote or, like Nicoll, none at all.
General Statutes § 7-328a provides:
(a) Any district, as defined by [§]7-324, established by special act may, by a two-thirds vote of the voters present at a district meeting, elect to make its charter, including any amendments thereto adopted by special act, subject to amendment by home rule action as hereinafter provided, but no home rule charter amendment shall be adopted which will grant to the district any authority exceeding that granted to districts under this chapter.
(b) A home rule charter amendment shall be initiated by a two-thirds vote of the entire membership of the board of directors or the other governing body and signed by not less than [10] per cent of the voters of the district. Upon the filing of such petition the clerk shall determine its sufficiency by comparing the signatures thereon with the names of the voters of the district and shall certify its sufficiency or insufficiency to the governing body.
(c) The provisions of [§§]7-189, 7-190 and 7-191 shall apply to home rule charter amendments by districts; provided `appointing authority' shall mean the board of directors or other governing body, `electors of the town, city or borough' shall mean voters of a district, `election' shall mean a district meeting, and `town or city clerk' shall mean the district clerk.
General Statutes § 7-190 provides:
(a) Within thirty days after such action has been initiated by vote of the appointing authority or by certification of a petition, the appointing authority shall by resolution appoint a commission consisting of not fewer than five nor more than fifteen electors, not more than one-third of whom may hold any other public office in the municipality and not more than a bare majority of whom shall be members of any one political party, which commission shall proceed forthwith to draft a charter, or amendments to the existing charter, or amendments to the home rule ordinance, as the case may be.
(b) The appointing authority shall direct the commission to consider those recommendations included in the petition and may make other recommendations to the commission. The commission may also consider other items for inclusion in the proposed charter, other changes to the charter or home rule ordinance and such other items as it deems desirable or necessary. The commission shall in its reports comment on each recommendation which it has been directed to consider, if any, and on such other changes or items. The appointing authority shall specify by resolution when the commission shall submit its draft report, which shall be not later than sixteen months from the date of its appointment.
(c) The commission shall terminate upon acceptance or rejection of its final report by the appointing authority.
Specifically, the plaintiffs maintain that, once formed, §§ 7-190 and 7-328a required the Commission to consider recommendations made by the Association membership in the authorizing resolution, and to report back to the membership with its amendment recommendations by a date selected by the membership and included in the resolution. The plaintiffs allege that such a resolution was passed in September of 2006, that it included a provision instructing the Commission to report back to the membership on or about January 8, 2007, but that the Board did not even form a Commission for almost a year after the initiation of the revision process. Count one further alleges that, once formed, the Commission failed to consider the recommendations made in the resolution. Thus, the plaintiffs contend that the Board was not entitled to accept the Commission's proposed amendments. The plaintiffs maintain that these failures are fundamental flaws "because without the proper authority all of the work subsequently performed by the Commission and voted on by the . . . Association [m]embership was ineffective . . ." To this end, the plaintiffs claim that the amended charter is void, and that all acts taken by the Association since the defective amendment — including the election of the named defendants — are illegitimate and void.
The fourteenth amendment to the United States constitution provides in relevant part: "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws."
The constitution of Connecticut, article sixth, § 1 as amended provides: "Every citizen of the United States who has attained the age of eighteen years, who is a bona fide resident of the town in which he seeks to be admitted as an elector and who takes such oath, if any, as may be prescribed by law, shall be qualified to be an elector."
The constitution of Connecticut, article sixth, § 4 provides: "Laws shall be made to support the privilege of free suffrage, prescribing the manner of regulating and conducting meetings of the electors, and prohibiting, under adequate penalties, all undue influence therein, from power, bribery, tumult and other improper conduct."
The following facts are not in dispute. The original charter for the Association was created in 1921 by special act of the General Assembly. See 18 Spec. Acts 702, No. 329 (1921). Section two of the original charter stated that "[t]he object of this [A]ssociation is to provide for the care and improvement of the lands in said district and for the health, comfort, protection and convenience of persons living therein." Section five created an executive board to oversee the affairs of the Association that consisted of five individuals elected annually by popular vote of the membership. Pursuant to section four, only "qualified voters" were entitled to cast a vote at meetings of the membership, and a "qualified voter" was defined as "any owner of a piece of land or of a freehold interest therein within the limits of [the] [A]ssociation who shall have arrived at the age of twenty-one years . . ." Qualified voters were "entitled to one vote for each [$100] of the value of such land or interest therein owned by such person at the time of such meeting," according to the tax assessor's list last compiled before the meeting. Pursuant to section five, only those residents who qualified to vote were entitled to run for office on the Board. Further, section four expressly stated that, where land was held in trust, "the cestui que trust shall have no right to vote or appoint [a] proxy, but such . . . trustee shall be deemed the owner thereof for the purpose of voting."
The original charter has been the subject of two amendments, the first one effective in 1972 and the second one effective on January 1, 2009. Concerning the 1972 amendment, the Association held a meeting on May 15, 1972 at which they elected to make the existing charter subject to amendment by home rule action. The 1972 amended charter slightly changed the prerequisites for being a "qualified voter" so that land owners in the Association who attained the age of eighteen and did not owe more than one year's taxes to the Association were entitled to vote and hold office on the Board. It also changed the formula used to determine how many votes each qualified voter was entitled to cast: "Each qualified voter shall be entitled to one vote for each [$1000] of the value of such land or interest therein owned by such person at the time of such meeting as such value shall appear upon the assessor's lists . . ."
The 2009 amended charter again revised these provisions to define a qualified voter as one who: "[1] Is the owner of a piece or parcel of land or a freehold interest therein of no less than a 50 [percent] share within the limits of the Association. [2] Has reached the age of [eighteen] years of age. [3] Shall owe not more than one year's taxes to the Association." It also does away with the previous value-driven formula for determining how many votes each qualified voter will be entitled to cast, and instead provides that "[e]ach qualified voter shall be entitled to one vote for each separate parcel of land, as shown as a separate tax parcel on the Tax Assessor's Grand List of the City of Milford, in which he has an ownership interest as specified herein." Finally, while the charter continues to require that those eligible for election to the Board be "qualified voters," it adds the following criteria: "[1] Be a full time resident of Morningside, which residency shall be evidenced by voter registration, car registration or other declaration of legal residence. It shall be the responsibility of the clerk of the [A]ssociation to make a final and binding determination of legal residency as to any candidate for election to the [B]oard. [2] Have been a full time resident in Morningside for at least one year prior to the time of election as a [B]oard member. [3] In the event that said qualified voter owns his parcel of land in common or jointly with other owners, said qualified voter may not be eligible for election to the . . . [B]oard during any period of time when one of his joint owners or co-owners already holds a position on the . . . [B]oard."
The plaintiffs are long-time residents of Morningside. On June 2, 1995, Nicoll and his wife quitclaimed their property to "the Nicoll family trust." Nicoll is the beneficiary of this trust, but not the trustee. As a result, Nicoll, individually, is not permitted to vote at membership meetings or run for office on the Board under the provisions of the 2009 charter. Also, on December 22, 1998, I'Anson and his wife quitclaimed their property to a revocable trust, naming I'Anson's wife as trustee. On September 24, 2008, I'Anson's wife resigned as trustee, and I'Anson was named as the successor trustee. In accordance with the 2009 charter. I'Anson, in his capacity as trustee, can vote at membership meetings and run for office on the Board.
II
"The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . Where, however . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue . . ." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007). "[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003). "The burden rests with the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) Goodyear v. Discala, 269 Conn. 507, 511, 849 A.2d 791 (2004). "[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002).
"The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." St. George v. Gordon, 264 Conn. 538, 544, 825 A.2d 90 (2003). "Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy . . . Standing . . . is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented." (Internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 511, 518-19, 970 A.2d 583 (2009).
"When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue . . . Standing requires no more than a colorable claim of injury; a [party] ordinarily establishes . . . standing by allegations of injury. Similarly, standing exists to attempt to vindicate arguably protected interests . . .
"Standing is established by showing that the party claiming it is authorized by statute to bring an action, in other words, statutorily aggrieved, or is classically aggrieved. [Statutory] [s]tanding concerns the question [of] whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question . . .
"The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: [F]irst, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action] . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected . . ." (Citations omitted; internal quotation marks omitted.) Cambodian Buddhist Society of Connecticut, Inc. v. Planning Zoning Commission, 285 Conn. 381, 393-94, 941 A.2d 868 (2008).
A Defendants' Claim that Nicoll Lacks Standing on Count One
The defendants argue that Nicoll lacks standing to maintain the action because he is merely a beneficiary to a trust that holds title to the property on which he resides, and any action designed to enforce the rights of the trust must be brought by the trustee. See Treat v. Stanton, 14 Conn. 445, 454 (1841) ("the obligation and legal responsibility is exclusively to the trustee and must be enforced by him in a court of law . . ."). The court agrees with this argument as it pertains to count one of the plaintiffs' complaint, but disagrees insomuch as it pertains to count two.
Nicoll cannot demonstrate aggrievement pursuant to count one of the plaintiffs' complaint. The plaintiffs allege in that count that, pursuant to § 7-328a, the Association elected to be governed by Connecticut's Home Rule Act, General Statutes § 7-187 et seq. As a result, the Association was required to adhere to the procedural provisions of § 7-190 for purposes of amending its charter. The plaintiffs claim that it failed to do so. Nicoll does not claim that he is statutorily aggrieved. The court must determine whether Nicoll is classically aggrieved as a result of the charter amendment process followed by the Board.
"The purpose . . . of Connecticut's Home Rule Act is clearly twofold: to relieve the General Assembly of the burdensome task of handling and enacting special legislation of local municipal concern and to enable a municipality to draft and adopt a home rule charter or ordinance which shall constitute the organic law of the city, superseding its existing charter and any inconsistent special acts . . . The rationale of the act, simply stated, is that issues of local concern are most logically answered locally, pursuant to a home rule charter, exclusive of the provisions of the General Statutes . . . Moreover, home rule legislation was enacted to enable municipalities to conduct their own business and [to] control their own affairs to the fullest possible extent in their own way . . . upon the principle that the municipality itself kn[ows] better what it want[s] and need[s] than . . . the state at large, and to give that municipality the exclusive privilege and right to enact direct legislation which would carry out and satisfy its wants and needs." (Internal quotation marks omitted.) Board of Education v. Naugatuck, 268 Conn. 295, 306, 843 A.2d 603 (2004).
The Home Rule Act is designed to give local voters the right to decide local issues, and to protect the will of the local electorate. See Board of Education v. Naugatuck, 70 Conn.App. 358, 362, 800 A.2d 517 (2002) ("We also proceed mindful of and sensitive to the fact that the charter revisions represent the popular will of the Naugatuck electorate, thus implicating the political and legislative process." (Emphasis added.)), rev'd on other grounds, 268 Conn. 295, 843 A.2d 603 (2004). Section 7-190 must be complied with because "[t]he only valid manner in which a municipality may amend its charter is to comply with the provisions of the Home Rule Act. A municipality may not waive the provisions of the act. See, e.g., Sloane v. Waterbury, 150 Conn. 24, 28-29, 183 A.2d 839 (1962); Lacava v. Carfi, 140 Conn. 517, 520, 101 A.2d 795 (1953)." Board of Education v. Naugatuck, 58 Conn.App. 632, 638 n. 9, 755 A.2d 297 (2000), rev'd on other grounds, 257 Conn. 409, 778 A.2d 862 (2001).
Because Nicoll does not own land in the Association, he is not a qualified voter under the most recently amended charter, nor was he a qualified voter under the prior 1972 charter. Therefore, Nicoll does not have "a specific, personal, legal interest in [the challenged action], as distinguished from a general interest, such as the concern of all members of the community as a whole." Cambodian Buddhist Society of Connecticut, Inc. v. Planning Zoning Commission, supra, 285 Conn. 394. Because he does not have a personal and specific interest in the charter amendment process, Nicoll does not have standing as to count one. Rather, in view of the fact that the current and previous versions of the charter condition the right to vote and run for office on the ownership of land, the proper party to challenge the procedures of the charter amendment process is the trustee under the Nicoll family trust and not Nicoll in his individual capacity. Therefore, the defendants' motion to dismiss claiming Nicoll lacks standing under the first count is granted.
B Defendants' Claim that Nicoll Lacks Standing on Count Two
The second count of the plaintiffs' complaint alleges violations of equal protection under the state and federal constitutions. They claim that the property ownership requirements in the 2009 charter treat Nicoll differently than other residents of the Association by disenfranchising him and by diluting his vote by permitting property owners to cast one vote per taxable parcel owned. The court must decide whether Nicoll has standing to maintain the claims in the second count.
The Supreme Court of the United States has previously stated that because "the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized." (Internal quotation marks omitted.) Kramer v. Union Free School District, 395 U.S. 621, 626, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969). Thus, in Kramer, the Supreme Court examined a New York statute that only permitted individuals to vote in school board elections in certain school districts "if they (1) own[ed] (or lease[d]) taxable real property within the district, or (2) [were] parents (or [had] custody of) children enrolled in the local public schools." Id., 622. As a thirty-one-year-old bachelor without children who lived with his parents within the district but did not own or lease property, the plaintiff met none of these criteria, and was thus denied the right to vote. Id. He challenged the constitutionality of the statute on the basis that it denied him equal protection under the law. Id. In reviewing the statute, the Court observed that "[s]tatutes granting the franchise to residents on a selective basis always pose the danger of denying some citizens any effective voice in the governmental affairs which substantially affect their lives." Id., 626-27. As such, the Court concluded that "if a challenged state statute grants the right to vote to some bona fide residents of requisite age and citizenship and denies the franchise to others, the Court must determine whether the exclusions are necessary to promote a compelling state interest." Id., 627. The statute at issue in Kramer failed to meet these requirements, and was thus deemed unconstitutional. Id., 632-33.
Nicoll alleges in the second count that the 2009 charter denies individuals who, like him, reside but do not own property in the Association the right to vote in Board elections, even though they are otherwise qualified voters. He further alleges that this restriction on the right to vote violates state and federal constitutional provisions. In Connecticut, where allegations are made by the plaintiffs for injunctive and other relief that they are otherwise qualified voters but have been denied the franchise by municipal action, "[t]o possess standing the plaintiffs need only demonstrate a realistic possibility of injury to their voting interests and not a likelihood of success on the merits of their claim." Leahy v. Columbia, Superior Court, judicial district of Tolland, Docket No. CV 00 73346 (September 29, 2000, Sferrazza, J.) [28 Conn. L. Rptr. 237]. The court finds that, given precedent established by the United States Supreme Court in cases such as Kramer v. Union Free School District, supra, 395 U.S. 621, the allegations made in count two of the plaintiffs' complaint are sufficient to demonstrate a realistic possibility of injury to Nicoll's voting interests. Further, Nicoll has a specific personal and legal interest in his franchise right that he claims the defendants' actions injuriously affected. Therefore, Nicoll has standing under the second count of the complaint and the motion to dismiss that count is denied.
The court further notes that the plaintiffs allege that the Association charter is governed by the provisions of Connecticut's Home Rule Act, and that one provision of the Home Rule Act explicitly states that "[a]ny municipality . . . shall have the power to (1) adopt and amend a charter which shall be its organic law and shall supersede any existing charter, including amendments thereto, and all special acts inconsistent with such charter or amendments, which charter or amended charter may include the provisions of any special act concerning the municipality but which shall not otherwise be inconsistent with the Constitution or general statutes . . . "General Statutes § 7-188(a).
C Defendants' Claim that I'Anson Lacks Standing Under Count One
The defendants acknowledge that I'Anson, as trustee of a trust that holds property in the Association, has the right to cast one vote and run for office on the [B]oard. They nevertheless maintain he does not have standing in this action because his "status has not been changed by the newly revised charter." They argue that because he was trustee before and after the 2009 charter revision became effective, he was permitted to vote and run for office at both moments in time, and therefore has not suffered an injury that would give him standing in this action. The court disagrees with this narrow approach to determining I'Anson's standing. "Standing . . . is not a technical rule intended to keep aggrieved parties out of court . . ." New Hartford v. Connecticut Resources Recovery Authority, supra, 291 Conn. 518.
I'Anson has standing with regard to count one. He is an owner of property in Morningside, from which ownership he derives his voting rights. If I'Anson establishes that the 2009 charter was amended in violation of the applicable statutes in the Home Rule Act, then his voting rights will be those established by the 1972 charter. I'Anson has a personal and special interest in his voting rights which will be injuriously affected if the actions of the Board and the Commission are invalidated. In view of the foregoing, the motion to dismiss against I'Anson claiming that he does not have standing under count one is denied.
D Defendants' Claim that I'Anson Lacks Standing Under Count Two
Concerning the plaintiffs' constitutional claims set out in count two, the court determines that the allegations made therein are sufficient to demonstrate that I'Anson has standing to pursue an adjudication of those issues. The plaintiffs concede that, because it is now undisputed that I'Anson is entitled to vote in Association elections, he may not rely on cases such as Kramer v. Union Free School District, supra, 395 U.S. 621 to establish that he is classically aggrieved. In the second count, the plaintiffs claim that under certain provisions of the newly revised charter qualified voters are entitled to cast one vote per taxable property owned. They assert that because some qualified voters allegedly own multiple properties, those voters are entitled to cast multiple votes while other qualified voters that own only one property, including the I'Anson family trust, are entitled to cast just one vote. I'Anson contends that this apportionment scheme violates his constitutional right to equal protection under the law in that it runs afoul of the "one person, one vote" rule established by the United States Supreme Court in cases such as Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964).
Specifically, count two alleges in relevant part: "The new rule of one vote per tax bid results in other inequities and substantial additional disenfranchisement as follows: There are apparently 222 eligible voters in Morningside, based on the list provided by the City of Milford Assessors Office to . . . Nicoll on April 24, 2009 . . . Eleven residents have a total of [thirty-one] votes (more than one vote each) because they receive more than one tax bill from the City of Milford each year." Count two then alleges that the following owners of record are entitled to the following number of votes under the provisions of the newly amended Association charter: Beverly Slater Johnson, six votes; Bob and Claire Kerin, five votes; the Austin trust, four votes; eight other property owners, two votes each.
In Reynolds, the Supreme Court examined an apportionment scheme then used by Alabama for purposes of electing its state legislature that created electoral districts of significantly unequal population that resulted in significantly unequal representation. Id., 537-41. The Court explained that "the right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized." Id., 561-62. The Court declared: "Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests. As long as ours is a representative form of government, and our legislatures are those instruments of government elected directly by and directly representative of the people, the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system. It could hardly be gainsaid that a constitutional claim had been asserted by an allegation that certain otherwise qualified voters had been entirely prohibited from voting for members of their state legislature. And, if a State should provide that the votes of citizens in one part of the State should be given two times, or five times or [ten] times the weight of votes of citizens in another part of the State, it could hardly be contended that the right to vote of those residing in the disfavored areas had not been effectively diluted. It would appear extraordinary to suggest that a State could be constitutionally permitted to enact a law providing that certain of the State's voters could vote two, five, or [ten] times for their legislative representatives, while voters living elsewhere could vote only once. And it is inconceivable that a state law to the effect that, in counting votes for legislators, the votes of citizens in one part of the State would be multiplied by two, five, or [ten], while the votes of persons in another area would be counted only at face value, could be constitutionally sustainable. Of course, the effect of state legislative districting schemes which give the same number of representatives to unequal numbers of constituents is identical. Overweighting and overvaluatian of the votes of those living here has the certain effect of dilution and undervaluation of the votes of those living there. The resulting discrimination against those individual voters living in disfavored areas is easily demonstrable mathematically. Their right to vote is simply not the same right to vote as that of those living in a favored part of the State. Two, five, or [ten] of them must vote before the effect of their voting is equivalent to that of their favored neighbor. Weighting the votes of citizens differently, by any method or means, merely because of where they happen to reside, hardly seems justifiable. One must be ever aware that the Constitution forbids sophisticated as well as simple-minded modes of discrimination." (Internal quotation marks omitted.) Id., 562-63. As such, the Court found the apportionment scheme unconstitutional on the basis that it violated the plaintiffs' right to equal protection, because it was clear the state did not "make an honest and good faith effort to construct districts . . . as nearly of equal population as is practicable." Id., 557; see also Hadley v. Junior College District, 397 U.S. 50, 56, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970) ("[A]s a general rule, whenever a state or local government decides to select persons by popular election to perform governmental functions, the Equal Protection Clause of the Fourteenth Amendment requires that each qualified voter must be given an equal opportunity to participate in that election, and when members of an elected body are chosen from separate districts, each district must be established on a basis that will insure, as far as is practicable, that equal numbers of voters can vote for proportionally equal numbers of officials").
The Hadley Court also stated that "[i]t is of course possible that there might be some case in which a State elects certain functionaries whose duties are so far removed from normal governmental activities and so disproportionately affect different groups that a popular election in compliance with Reynolds . . . might not be required . . ." Hadley v. Junior College District, supra, 397 U.S. 56. Whether the duties of the officers of the Association Board are, in fact, "so far removed from normal governmental activities and so disproportionately affect different groups" that their election need not be made in accordance with the "one person, one vote" rule is not, however, a question for this court to decide upon a motion to dismiss.
In the second count of their complaint, the plaintiffs claim that the manner by which qualified voters are awarded votes pursuant to the 2009 charter results in the dilution of the votes cast by qualified voters who own but one property, including I'Anson. As such, I'Anson has made out a colorable, justiciable claim in count two sufficient to demonstrate standing. Therefore, the defendants' motion to dismiss the second count as it pertains to I'Anson is denied.
III DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON BOTH COUNTS
The defendants move for summary judgment on the first and second counts of the plaintiffs' complaint. Concerning the first count, the defendants claim that there are no questions of material fact as to whether the defendants violated General Statutes §§ 7-328 and 7-190 in amending the charter effective in 2009. Concerning the second count, the defendants claim that there is no question of material fact that the provisions of the Association's charter violate the state and federal constitutions. The plaintiffs oppose the motion.
The defendant's motion merits little discussion. A review of the pleadings, affidavits and other proof submitted by the parties on this issue clearly show the existence of material issues of fact requiring a trial on the merits. The fact that the parties have submitted briefs containing factual and legal arguments that the court finds to be more in the nature of trial briefs belies the court's conclusion.
The defendant's summary judgment motion on the first count (108.00) and second count (See Memorandum in Support of Defendants' Motion for Summary Judgment as to Count Two of the Plaintiffs' Complaint) of the plaintiffs' complaint is denied.
IV CONCLUSION
For the foregoing reasons, the defendants' motion to dismiss (106.00) is granted only as it pertains to the claims made by Nicoll in count one. The defendants' motion for summary judgment on the first and second counts of the plaintiffs' amended complaint is denied.