DeMayo v. Quinn

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   LOIS DEMAYO ET AL. v. MICHAEL D. QUINN
                (SC 19343)
       Palmer, Zarella, Eveleigh, Espinosa and Robinson, Js.
    Argued September 22—officially released December 23, 2014

  Daniel J. Klau, for the appellant (defendant).
  Eliot B. Gersten, with whom were Craig C. Fishbein,
and, on the brief, Lee D. Hoffman and Megan Y. Caran-
nante, for the appellees (plaintiffs and intervening
plaintiff).
                           Opinion

  EVELEIGH, J. The defendant, Michael D. Quinn,
appeals from the judgment of the trial court granting
the writ of quo warranto filed by the plaintiffs, certain
taxpayers of the city of Meriden (city),1 and ordering
his removal from the office of corporation counsel.
On appeal, the defendant asserts that the trial court
improperly determined that the Meriden City Charter
(charter) clearly and unambiguously requires the mayor
to recommend all appointments to officers or positions
within the city.2 We disagree, and accordingly, affirm
the judgment of the trial court.
   The record discloses the following facts and proce-
dural history, as stipulated to by the parties. ‘‘The [plain-
tiffs] each have standing to sustain this action, sounding
in quo warranto. . . . The plaintiffs are registered to
vote in the city . . . and did so vote in the municipal
elections that took place on November 5, 2013. . . .
As a result of the municipal elections that took place
on November 5, 2013, Manuel A. Santos was elected
mayor . . . . On December 12, 2013, at approximately
9:00 a.m., [Santos] was sworn into office, succeeding
Michael Rohde as mayor . . . .
   ‘‘On or about November 29, 2013, the . . . [c]ity
[c]ouncil created and posted an agenda for a city council
meeting to take place on December 2, 2013, at 7:00 p.m.
. . . The agenda for [that] meeting was created to the
exclusion of [Santos]. . . . Prior to the . . . meeting,
[Santos] attempted to make his own recommendation
for an appointee as corporation counsel for the city
. . . however his recommendation(s) were rejected by
the majority leader of the city council, Brian Daniels.
. . . On December 2, 2013, at approximately 7:00 p.m.,
[Santos] convened, and presided over the . . . meet-
ing. . . . The first item on the agenda for the . . .
meeting was [labeled], ‘Res. re: appointment of [the
defendant] as corporation counsel.’ . . . [The defen-
dant] is an attorney, licensed to practice law in the state
of Connecticut, who had previously been appointed
during [Rhode’s administration] to serve as corporation
counsel for the city . . . . [The defendant] was never
recommended by [Santos] for consideration by the city
council as an appointee for the position of corporation
counsel for the city . . . .’’
   The trial court determined as follows: ‘‘Here, it is
stipulated that the city council acted upon the recom-
mendation of [Rhode, who was] the former mayor, [and]
not [Santos] who was currently holding the office [of
mayor]. Inasmuch as the condition precedent to [the]
city council’s appointing power was not met, the city
council had no power to make the appointment at issue
here. Accordingly, the defendant has not, and cannot,
meet his burden to show that he is entitled to the office
he now holds.’’ (Internal quotation marks omitted.)
  On appeal, the defendant asserts that the trial court
improperly determined that the charter clearly and
unambiguously requires the mayor to recommend all
appointments to offices or positions within the city and
refused to consider extratextual evidence regarding the
intent of the drafters of the charter. We disagree with
this contention.
   We begin with the standard of review. The determina-
tion of whether the trial court properly granted the
plaintiffs’ writ of quo warranto on the basis that the
defendant’s appointment to the office of corporation
counsel violated the charter presents a question of law
over which our review is plenary. See Bateson v. Wed-
dle, 

, 13–14, 

 (2012); Stewart
v. Watertown, 

, 

 (2012).
‘‘Because our resolution of this issue requires us to
construe provisions of [a municipal] charter, we apply
principles of statutory interpretation. See, e.g.,
Bridgeman v. Derby, 

, 

 (1926)
([a]s we seek to interpret this provision of [the applica-
ble] charter, it will be well to keep before us some of
the fundamental principles of statutory construction).
   ‘‘Furthermore, with respect to the construction of the
provisions in a municipal charter, [i]t is well established
that, as a creation of the state, a municipality . . . has
no inherent powers of its own . . . and that [it] pos-
sesses only such rights and powers that have been
granted expressly to it by the state . . . . Buttermilk
Farms, LLC v. Planning & Zoning Commission, 

, 

 (2009). Therefore, [w]here
a charter specifies a mode of appointment, strict com-
pliance is required. State ex rel. Gaski v. Basile, [

, 

 (1977)]. More specifically,
[i]f the charter points out a particular way in which any
act is to be done or in which an officer is to be elected,
then, unless these forms are pursued in the doing of
any act or in the electing of the officer, the act or the
election is not lawful. State ex rel. Southey v. Lasher,

, 

 (1899); see also State ex
rel. Barlow v. Kaminsky, 

, 

 (1957) (A statute which provides that a thing shall
be done in a certain way carries with it an implied
prohibition against doing that thing in any other way.
An enumeration of powers in a statute is uniformly
held to forbid the things not enumerated.).’’ (Emphasis
omitted; internal quotation marks omitted.) Bateson v.
Weddle, supra, 

.
   We turn first to the language of the provisions of
the charter relating to the appointment of corporation
counsel. Section C7-3 of the Meriden City Charter,
which pertains to the city’s department of law, provides
in relevant part: ‘‘The [c]ity [c]ouncil shall appoint and
may remove a [c]orporation [c]ounsel who shall be an
attorney at law admitted to practice law in this state,
in good standing as a member of the Connecticut [b]ar
and who has been in active practice of his/her profes-
sion in Connecticut for at least five years. He/she shall
appear for and protect the rights of the [c]ity in all
actions, suits or proceedings brought by or against it
or any of its departments, officers, agencies, boards or
commissions . . . .’’ By its plain terms, § C7-3 provides
that the city council has appointing authority for the
position of corporation counsel. Section C7-3 does not
indicate what role, if any, the mayor has in the appoint-
ment of corporation counsel for the city.
   Section C7-3 of the charter, however, must be read
in conjunction with the other provisions of the charter.
‘‘In arriving at the intention of the framers of the charter
the whole and every part of the instrument must be
taken and compared together. In other words, effect
should be given, if possible, to every section, paragraph,
sentence, clause and word in the instrument and related
laws.’’ (Internal quotation marks omitted.) Fennell v.
Hartford, 

, 

 (1996); see
also Broadnax v. New Haven, 

, 

 (2004). Section C3-3J of the charter, which
is entitled ‘‘How appointments by [c]ity [c]ouncil are
made,’’ is one such provision, and provides in relevant
part: ‘‘The [m]ayor shall recommend any and all
appointments to officers or positions within the
appointing power of the [c]ity [c]ouncil (except as to
chairpersons of the standing committees to the [c]ity
[c]ouncil) for approval. The [c]ity [c]ouncil may, within
its next two regular meetings after submission of a
recommendation by the [m]ayor, reject said recommen-
dation by majority vote of the entire membership except
as herein otherwise specified, in failure of which said
recommendation shall be deemed confirmed. . . .’’
  In interpreting statutory text, this court has often
stated that ‘‘ ‘the use of the word ‘‘shall,’’ though signifi-
cant, does not invariably create a mandatory duty. . . .
The usual rule, however, is that [t]he . . . use of the
word ‘‘shall’’ generally evidences an intent that the stat-
ute be interpreted as mandatory.’ ’’ Stewart v. Tunxis
Service Center, 

, 

 (1996).
Therefore, although not dispositive, the use of the
phrase ‘‘[t]he [m]ayor shall recommend any and all
appointments’’ in § C3-3J of the charter suggests that
the recommendation of the mayor is a mandatory pre-
requisite to the appointment of officers or positions
within the appointing power of the city council.
(Emphasis added.)
  Indeed, a review of the entire text of § C3-3J of the
charter indicates that the drafters of the charter went
to great lengths to address what happens if the city
council rejects the mayor’s initial recommendation.
Specifically, § C3-3J of the Meriden City Charter pro-
vides that ‘‘[i]n the event the [c]ity [c]ouncil rejects
the [m]ayor’s recommendation, the [m]ayor, before the
next regularly scheduled meeting of the [c]ity [c]ouncil,
shall recommend another individual for appointment.’’
Section C3-3J then goes on to allow for the city council
to approve or reject the mayor’s second recommenda-
tion: ‘‘At its next regularly scheduled meeting, the [c]ity
[c]ouncil may reject said recommendation by majority
vote of the entire membership except as herein other-
wise specified, in failure of which said recommendation
shall be deemed confirmed.’’ Section C3-3J then pro-
vides that, ‘‘[i]n the event the [c]ity [c]ouncil rejects
the [m]ayor’s recommendation by majority vote of the
entire membership, the [m]ayor, before the next regu-
larly scheduled meeting of the [c]ity [c]ouncil, shall
recommend another individual for appointment, said
individual not being an individual previously rejected
by the [c]ity [c]ouncil for this appointment.’’ Section
C3-3J finally provides that, ‘‘[i]n the event that the [c]ity
[c]ouncil votes to reject the three individuals recom-
mended by the [m]ayor for appointment to a particular
position, at the next regularly scheduled [c]ity [c]ouncil
meeting, the [c]ity [c]ouncil shall, by a majority vote of
the entire membership, select one of the three individu-
als previously recommended by the [m]ayor for the
appointment.’’ The detailed provisions allowing for the
mayor to make, and for the city council to accept or
reject, up to three recommendations for officers and
positions for which the city council has appointing
authority is further evidence that the recommendation
of the mayor is a prerequisite to the city council’s
appointment of an officer or position within the city.
The fact that the charter requires that the city council
ultimately appoint one of the three individuals recom-
mended by the mayor is also strong evidence that the
recommendation of the mayor is a prerequisite to being
appointed as an officer or to a position in the city.
   Moreover, the language of § C3-3J of the charter that
exempts chairpersons of the standing committees to
the city council from the requirement of the subsection
is instructive. It is a long-standing principle of statutory
construction that ‘‘[w]here there is an express excep-
tion, it comprises the only limitation on the operation
of the statute and no other exceptions will be implied.’’
2A N. Singer & J. Singer, Sutherland Statutory Construc-
tion (7th Ed. 2007) § 47:11, pp. 329–30; see also Hoard
v. Sears Roebuck & Co., 

, 

(1936) (‘‘[t]he express mention of one exception . . .
excludes others’’). Accordingly, the fact that the charter
explicitly provides that the mayor is not required to
recommend chairpersons of standing committees in
order for them to be appointed by the city council
supports the conclusion that the requirement that the
mayor recommend appointments for corporation coun-
sel and other officers is mandatory.
  The defendant asserts that § C3-3J of the charter does
not apply to the appointment of corporation counsel
because § C7-3 of the charter does not include a cross-
reference to § C3-3J, even though another section of
the charter does contain such a cross-reference. Specifi-
cally, the defendant relies on § C7-8 of the Meriden City
Charter, which provides that members of the Board of
Ethics ‘‘shall be appointed in accordance with § C3-3J
of the [c]ity [c]harter . . . .’’ The defendant asserts that
if the drafters of the charter intended for § C3-3J to
apply to the appointment of corporation counsel, then
the drafters would have put a similar cross-reference
to § C7-3. We disagree. As we explained previously
herein, the plain language of § C3-3J of the Meriden
City Charter provides that ‘‘[t]he [m]ayor shall recom-
mend any and all appointments . . . .’’ (Emphasis
added.) That language eliminates the need for cross-
references in other sections of the charter.
   The defendant also asserts that interpreting the char-
ter to require the recommendation of the mayor for the
appointment of the corporation counsel leads to absurd
and unworkable results because it may require the city
council to appoint an individual to the position of corpo-
ration counsel who they do not approve of and then
they could exercise their powers to remove the person
from office. Although we agree with the defendant that
such a result could occur, we disagree that the result
would be absurd. Indeed, the appointment scheme that
is detailed in the charter is a rational one that favors
cooperation amongst the positions of government, even
if they are from different political parties. Just as the
city council is required to appoint an individual who is
recommended by the mayor, the mayor knows that
the city council may remove the corporation counsel.
Therefore, both the mayor and the city council are moti-
vated to recommend and appoint a qualified individual
for whom there is consensus between the city council
and the mayor. Such an approach promotes cooperation
between different branches of government and is nei-
ther absurd nor unworkable.
   The defendant further asserts that interpreting the
city charter so as to require the mayor to recommend
the candidate for corporation counsel conflicts with
§ 3-4 of the Meriden City Code (code), which requires
the city council to appoint certain officers at the first
meeting in December following each biennial election.
The defendant claims that applying § C3-3J of the char-
ter to the appointment of corporation counsel conflicts
with § 3-4 of the code because, if the city council rejects
the first recommendation of the mayor, it would be
impossible to appoint the corporation counsel at the
first meeting in December. Although it is possible that
the corporation counsel may not be appointed in
December, § C3-3J of the charter provides for a timely
appointment process in the event that the city council
rejects the mayor’s first recommendation for corpora-
tion counsel. Accordingly, we do not find any possible
conflict between the workings of § C3-3J of the charter
and § 3-4 of the code.3
   The defendant further asserts that the issue presented
in this appeal is ultimately a separation of powers issue
and that this court should give great weight to the long-
standing practices of one branch of government in
which another branch has acquiesced. Specifically, the
defendant asserts that in interpreting the charter, this
court should be guided by the fact that for twenty years,
the city council and previous mayors have interpreted
the charter so as to grant the city council the exclusive
power to select and appoint corporation counsel. The
defendant relies primarily on National Labor Relations
Board v. Noel Canning,        U.S. , 

, 

 (2014), to support this claim.
  In Noel Canning, the United States Supreme Court
considered whether, under the recess appointments
clause, the president of the United States had the appro-
priate authority to appoint individuals to the National
Labor Relations Board during a three day adjournment
of the United States Senate. Id., 2259. The court recog-
nized that the issue implicated the separation of powers
doctrine because if the recess appointments clause did
not give the president power to appoint the individuals,
he would have violated that doctrine by improperly
exercising a power he shared with the legislature. Id.,
2559–560. Nevertheless, the court first addressed the
plain language of the clause, particularly the meaning
of the term ‘‘recess.’’ Id., 2561. Having determined that
the term ‘‘recess’’ was ambiguous as it applied to the
Senate’s three day adjournment, the court then consid-
ered the historical practice and the purpose of the
clause to ascertain the meaning of the recess appoint-
ments clause. Id., 2561–64. Ultimately, the court con-
cluded that the president did not have the authority
to appoint individuals to the National Labor Relations
Board during a three day adjournment of the United
States Senate. Id., 2565–67.
   The defendant claims that, under Noel Canning, long-
standing government practices can be determinative
of the meaning of a charter provision, even when the
language of the charter is particularly clear, if the provi-
sion at issue implicates the separation of powers doc-
trine. We disagree. As recently as 2012, we have
reaffirmed the well established principle that ‘‘with
respect to the construction of the provisions in a munici-
pal charter . . . [w]here a charter specifies a mode of
appointment, strict compliance is required. . . . [I]f
the charter points out a particular way in which any
act is to be done or in which an officer is to be elected,
then, unless these forms are pursued in the doing of
any act or in the electing of the officer, the act or
the election is not lawful.’’ (Citations omitted; internal
quotation marks omitted.) Bateson v. Weddle, supra,

. We, therefore, decline to accept the defen-
dant’s invitation to adopt a different standard of review
for cases involving the interpretation of municipal char-
ters that raise issues regarding the separation of powers
doctrine, as many claims involving the interpretation
of municipal charters do.
   In the present case, as we have explained previously
herein, the plain language of the § C3-3J of the Meriden
City Charter clearly and unambiguously provides that
‘‘the [m]ayor shall recommend any and all appointments
to officers or positions within the appointing power
of the [c]ity [c]ouncil . . . .’’ Therefore, any resort to
extratextual evidence in the present case, including the
longstanding practice of the mayor and the city council,
is not necessary. Accordingly, we find the defendant’s
reliance on Noel Canning unavailing.
  We conclude that the trial court properly determined
that the charter requires the recommendation of the
mayor for the appointment of the city’s corporation
counsel. Accordingly, on the basis of these undisputed
facts, we affirm the judgment of the trial court granting
the writ of quo warranto filed by the plaintiffs and
ordering the defendant’s removal from the office of
corporation counsel.
      The judgment is affirmed.
      In this opinion the other justices concurred.
  1
    The original plaintiffs in the present case were Lois DeMayo and John
Biafore. Joseph Carabetta intervened as a plaintiff in this action on February
24, 2014.
  2
    The defendant raises a second claim that the trial court misinterpreted
the parties’ stipulation of facts regarding whether the prior mayor recom-
mended the defendant for the position. Because we conclude that the charter
required the recommendation of the current mayor prior to appointing the
defendant to the position of corporation counsel, we need not reach the
second issue.
  3
    The defendant further asserts that if we conclude that § C3-3J of the
charter applies to the appointment of corporation counsel, then it would
apply to the appointment of the city manager and that such an application
would lead to absurd and unworkable results and be contrary to law. Because
the process by which the position of city manager is appointed under the
charter is contained in a separate section of the charter that uses different
language than § C7-3, we decline to accept the defendant’s invitation to
remark on that process.