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THOMAS ARRAS ET AL. v. REGIONAL SCHOOL

DISTRICT NUMBER 14 ET AL.

(SC 19442)

Rogers, C. J., and Palmer, Zarella, Eveleigh, Espinosa, Robinson and

Vertefeuille, Js.

Argued May 19—officially released October 20, 2015

Deborah G. Stevenson, for the appellants (plaintiffs).

Mark J. Sommaruga, with whom were William Stevens, Anthony F. DiPentima and, on the brief, Zachary

D. Schurin, for the appellees (defendants).

Patrice A. McCarthy filed a brief for the Connecticut

Association of Boards of Education as amicus curiae.
Opinion

VERTEFEUILLE, J. The primary question that we

must answer in this appeal is whether the failure to

comply with the provisions of General Statutes §§ 10-

56,1 10-47c2 and 9-2263

requiring towns to publish warning of a referendum in the same manner as provided

for the election of town officials is prejudicial per se,

automatically requiring the invalidation of the referendum results. The plaintiffs4 brought this action against

the defendants5 alleging that the defendant towns of

Woodbury and Bethlehem had held a referendum on

the question of whether to approve a resolution by

the defendant Board of Education for Regional School

District Number 14 (board of education) authorizing the

issuance of bonds and notes to finance certain school

construction expenses, without issuing the statutorily

required warning. The plaintiffs contended, among

other things, that this failure rendered the referendum

null and void ab initio. The defendants filed motions

to strike certain of the plaintiffs’ claims, which the trial

court granted in part. Both the plaintiffs and the defendants then filed motions for summary judgment as to

the remaining claims. The trial court concluded that

there was no genuine issue of material fact as to

whetherthe defendants had substantially complied with

the statutory notice provisions and that there was no

evidence that their failure to properly warn of the referendum had affected the vote. Accordingly, the trial

court denied the plaintiffs’ motion for summary judgment, granted the defendants’ motions for summary

judgment and rendered judgment for the defendants.

The plaintiffs appeal6

from the judgment of the trial

court claiming that the court improperly granted the

defendants’ motions for summary judgment because

the failure to comply with the statutory notice provisions was inherently prejudicial. We affirm the judgment of the trial court, albeit on the basis of somewhat

different reasoning.

The record reveals the following undisputed facts.

On May 16, 2013, the board of education held a special

meeting at which it approved a resolution appropriating

$63,820,605 for the renovation of and additions to Nonnewaug High School and authorized the issuance of

bonds and notes in the same amount to finance the

appropriation. The board of education also approved

resolutions recommending to the towns within the

defendantRegional School District Number 14 (regional

school district), namely, the towns of Woodbury and

Bethlehem, that they subject the bond and note authorization to a referendum vote, to be held on June 18,

2013, on the following question: ‘‘Shall [the regional

school district] appropriate $63,820,605 for renovations

of and additions to Nonnewaug High School, and authorize the issu[ance] of bonds and notes in the same

amount to finance the appropriation?’’
On May 17, 2013, Debra W. Carlton, the executive

assistant to the superintendent of the regional school

district, forwarded the draft minutes of the May 16,

2013 special meeting of the board of education and a

document entitled ‘‘Voting Machine Information’’ setting forth the approved ballot question to the town

clerks of Woodbury and Bethlehem.7 The town clerks

never arranged for any notice of the referendum to be

published in a newspaper of general circulation in the

towns, as required by §§ 10-56, 10-47c and 9-226.8

On June 4, 2013, however, the Woodbury registrar of

voters issued a news release regarding the referendum.9

A newspaper, Voices, which has a circulation of 1360 in

Bethlehem and 3338 in Woodbury, published an article

about the referendum on June 12, 2013. The article

provided the information that had been set forth in the

news release and provided contact information for the

town clerks and registrars of voters in both Bethlehem

and Woodbury. Voices also had published an article

about the school renovations and referring to the referendum on May 22, 2013. In addition, the Waterbury

Republican American published articles on May 27,

2013, and on June 10, 2013. Another newspaper, the

Sunday Republican, published an article on June 16,

2013, in which it described the renovations and referred

to the June 18, 2013 referendum. On June 17, 2013, an

online news service known as the Woodbury-Middlebury Patch also published an item describing the

renovations and stating that the referendum would be

held the following day.

The regional school district also made efforts to publicize the referendum. Specifically, at some point before

June 18, 2013, the regional school district mailed notices

about the school renovations and proposed referendum

to all residents of the towns of Woodbury and Bethlehem and posted information about the referendum on

its website. The regional school district also used a

‘‘robocalling’’ system to call voters by telephone to

notify them of the date, time and voting places for

the referendum.10

The referendum was held on June 18, 2013, and the

voters approved the referendum question by a vote of

1269 to 1265. Thereafter, the Woodbury and Bethlehem

town clerks refused to certify the referendum results

to the Commissioner of Education because there had

been no proper legal warning of the referendum pursuant to §§ 10-56, 10-47c and 9-226. This uncertainty

regarding the validity of the referendum results

spawned two separate actions. Specifically, the towns

of Bethlehem and Woodbury brought an action against

the regional school district in the Superior Court for the

judicial district of Litchfield (Litchfield action) seeking,

inter alia, a declaratory judgment as to whether the

results of the referendum were valid. The regional

school district filed a counterclaim in the Litchfield
action seeking a declaratory judgment that the referendum results were valid and the issuance of a writ of

mandamus ordering the respective town clerks to certify the results of the referendum. In addition to the

Litchfield action, the plaintiffs filed the present action

in the judicial district of Waterbury alleging that the

defendants had failed to provide proper legal notice

of the referendum and seeking the invalidation of the

referendum results.11 The trial court in the present

action stayed the proceedings pending resolution of the

Litchfield action.

The plaintiffs in the present case filed an appearance

in the Litchfield action for the limited purpose of seeking to consolidate the two cases. They refused, however, to be made parties to the Litchfield action, despite

their claim to the trial court in the present case that

the Litchfield action was void ab initio,12 and despite

the warnings of the trial court that, if the plaintiffs failed

to raise that claim in the Litchfield action, the claim

might be ‘‘lost.’’ On December 10, 2013, the trial court in

the Litchfield action rendered judgment for the regional

school district. The court concluded that ‘‘there [was]

no evidence that the failure to strictly comply with the

[statutory] notice requirement, by publishing an official

‘warning’ in the newspapers, was substantial or caused

the results of the referendum to be seriously in doubt.’’

Meanwhile, in the present case, the plaintiffs had

filed a motion for summary judgment. After the trial

court in the Litchfield action rendered its decision, the

defendants in the present case filed cross motions for

summary judgment.13 Relying on the reasoning of the

trial court’s decision in the Litchfield action, the trial

court in the present case concluded that there was

no genuine issue of material fact as to whether the

defendants had substantially complied with the warning

provisions of §§ 10-56, 10-47c and 9-226 by publicizing

the referendum in various ways and there was also no

evidence that the defendants’ failure to strictly comply

with the statutes had affected the outcome of the referendum vote. Accordingly, the trial court granted the

defendants’ motions for summary judgment and rendered judgment for the defendants.

This appeal followed.14 The plaintiffs claim on appeal

that the trial court improperly rendered summary judgment for the defendants15 because the failure to strictly

comply with the warning provisions of §§ 10-56, 10-

47c and 9-226 was prejudicial per se.16 The defendants

respond that the trial court properly granted their

motions for summary judgment because there was no

genuine issue of material fact as to whether there had

been substantial compliance with the statutory notice

provisions and there was no evidence that the failure

to comply strictly with the statutes caused the results

of the referendum to be seriously in doubt. For the

reasons that follow, we agree with the defendants that
the trial court properly granted their motions for summary judgment because there was no evidence that

the referendum results were affected by the lack of a

proper warning.

The principles that govern ourreview of a trial court’s

ruling on a motion for summary judgment are well

established. ‘‘Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that

there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a matter

of law. In deciding a motion for summary judgment,

the trial court must view the evidence in the light most

favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing

the absence of any genuine issue of material fact and

that the party is, therefore, entitled to judgment as a

matter of law. . . . Our review of the trial court’s decision to grant the defendant’s motion for summary judgment is plenary.’’ (Internal quotation marks omitted.)

Rocco v. Garrison, 268 Conn. 541, 548–49, 848 A.2d

352 (2004).

Before addressing the merits of the plaintiffs’ claims,

we set forth the general principles governing ourlimited

review of claims involving the validity of election

results. ‘‘First, under our democratic form of government, an election is the paradigm of the democratic

process designed to ascertain and implement the will

of the people. . . . The purpose of the election statutes

is to ensure the true and most accurate count possible

of the votes for the candidates in the election [or, as

in the present case, for a particular referendum result].

. . . Those statutes rest on the bedrock principle that

the purpose of the voting process is to ascertain the

intent of the voters. . . . In implementing that process,

moreover, when an individual ballot is questioned, no

voter is to be disfranchised on a doubtful construction,

and statutes tending to limit the exercise of the ballot

should be liberally construed in his [or her] favor. . . .

Our election laws, moreover, generally vest the primary

responsibility for ascertaining that intent and will on

the election officials, subject, of course, to the court’s

appropriate scope ofreview when the officials’ determination is challenged in a judicial proceeding. . . . We

look, therefore, first and foremost to the election officials to manage the election process so that the will of

the people is carried out.’’ (Citations omitted; internal

quotation marks omitted.) Bortner v. Woodbridge, 250

Conn. 241, 254, 736 A.2d 104 (1999). ‘‘Second . . . [t]he

delicacy of judicial intrusion into the electoral process

. . . strongly suggests caution in undertaking such an

intrusion.’’ (Citation omitted; internal quotation marks

omitted.) Id.

‘‘An election is essentially—and necessarily—a snapshot. It is preceded by a particular election campaign,
for a particular period of time, which culminates on a

particular date, namely, the officially designated election day.In that campaign,the various parties and candidates presumably concentrate their resources—

financial, political and personal—on producing a victory on that date. When that date comes, the election

records the votes of those electors, and only those electors, who were available to and took the opportunity

to vote—whether by machine lever, write-in or absentee

ballot—on that particular day. Those electors, moreover, ordinarily are motivated by a complex combination of personal and political factors that may result in

particular combinations of votes for the various candidates [or, as in the present case, for or against a referendum question] . . . .

‘‘The snapshot captures, therefore, only the results

of the election conducted on the officially designated

election day.Itreflects the will ofthe people as recorded

on that particular day, after that particular campaign,

and as expressed by the electors who voted on that

day. Those results, however, although in fact reflecting

the will of the people as expressed on that day and no

other, under our democratic electoral system operate

nonetheless to vest power in the elected candidates for

the duration of their terms [or, as in the present case, to

finally determine the will of the people on a referendum

question]. . . . No losing candidate [or group of persons interested in a particular referendum result] is

entitled to the electoral equivalent of a mulligan.

‘‘Moreover, that snapshot can never be duplicated.

The campaign, the resources available for it, the totality

of the electors who voted in it, and their motivations,

inevitably will be different a second time around. Thus,

when a court orders a new election, it is really ordering

a different election. It is substituting a different snapshot of the electoral process from that taken by the

voting electorate on the officially designated election

day.

‘‘Consequently, all of the electors who voted at the

first, officially designated election . . . have a powerful interest in the stability of that election because the

ordering of a new and different election would result

in their election day disfranchisement. The ordering of

a new and different election in effect disfranchises all

of those who voted at the first election because their

validly cast votes no longer count, and the second election can never duplicate the complex combination of

conditions under which they cast their ballots.

‘‘All of these reasons strongly suggest that, although

a court undoubtedly has the power to order a new

election . . . the court should exercise caution and

restraint in deciding whether to do so. A proper judicial

respect for the electoral process mandates no less.’’

(Emphasis in original; footnote omitted; internal quotation marks omitted.) Id., 255–57. In light of these princi-
ples, this court concluded in Bortner that ‘‘in order for

a court to overturn the results of an election and order

a new election . . . the court must be persuaded that:

(1)there were substantial violations of the requirements

of the [governing statutes] . . . and (2) as a result of

those violations, the reliability of the result of the election is seriously in doubt.’’ Id., 258.

With this background in mind, we turn to the plaintiffs’ claim in the present case that the trial court

improperly determined that the defendants’ failure to

strictly comply with the statutory notice provisions by

publishing an official warning of the referendum in the

newspapers did not require the invalidation of the referendum. We begin our analysis with the language of the

governing statutes. Pursuant to § 10-56 (a), a referendum on a regional school district’s issuance of bonds

‘‘shall be conducted in accordance with the procedure

provided in section 10-47c . . . .’’ Section 10-47c provides in relevant part that ‘‘[t]he warning of such referenda shall be published . . . in the same manner as is

provided for the election of officers of a town.’’ Pursuant to § 9-226, governing municipal elections, ‘‘[n]otice

of an election of a city or borough shall be given by

publishing a warning in a newspaper published within

the limits of such city or borough, or having a general

circulation therein, not more than fifteen nor less than

five days previous to holding the election, which warning shall include notice of the time and the location of

the polling place in such city or borough and, in cities

and boroughs divided into voting districts, of the time

and the location of the polling place in each district.’’

The plaintiffs contend that these statutes are mandatory and, therefore, the defendants’ failure to strictly

comply with them by publishing a warning in the legal

notice section of a newspaper of general circulation

rendered the referendum invalid. Cf. Santiago v. State,

261 Conn. 533, 543, 804 A.2d 801 (2002) (general rule

requires strict compliance with mandatory statutory

provisions); State ex rel. Barnard v. Ambrogio, 162

Conn. 491, 502, 294 A.2d 529 (1972) (agency’s failure

to comply with mandatory statutory provision renders

agency’s action invalid). This court held in Bortner,

however, that the mere failure to comply with a statute

governing a part of the election process does not automatically render the election invalid. See Bortner v.

Woodbridge, supra, 250 Conn. 258 (‘‘in order for a court

to overturn the results of an election and order a new

election . . . the court must be persuaded that: [1]

there were substantial violations of the requirements

of the [governing statutes] . . . and [2] as a result of

those violations, the reliability of the result of the election is seriously in doubt’’ [emphasis added]); see also

Caruso v. Bridgeport, 285 Conn. 618, 652, 941 A.2d 266

(2008) (even assuming validity of plaintiff’s allegations

that registrar of voters, poll workers and campaign

workers had violated mandatory election statutes gov-
erning staffing of polling places, court was not required

to order new election when plaintiff failed to prove

that effect of violations ‘‘was to place the result of the

election seriously in doubt’’ [emphasis in original]);

Caruso v. Bridgeport, supra, 653 (‘‘proof of irregularities in the [election] process is not sufficient to overturn

an election in the absence of proof that any of the

irregularities actually affected the result’’).

We recognize that Bortner and Caruso involved statutes that are not at issue in the present case. Specifically, Bortner involved General Statutes § 9-328,

governing contests in elections for municipal officers,

and this court’s conclusion that strict compliance with

election statutes was not required was based in part

on the genealogy and legislative history of that statute.

See Bortner v. Woodbridge, supra, 250 Conn. 260–63.

Caruso involved General Statutes § 9-329a, governing

contests in connection with primary elections. We note,

however, that the language of General Statutes § 9-371b,

governing complaints directed at the rulings of election

officials in referenda, closely tracks the language of

§§ 9-328 and 9-329a.17 Moreover, § 9-371b was enacted

in 2004; see Public Acts 2004, No. 04-117, § 4; after this

court’s decision in Bortner construing the provisions

of § 9-329 was published. ‘‘The legislature is presumed

to be aware of the interpretation which the courts have

placed upon one of its legislative enactments . . . .’’

(Internal quotation marks omitted.) Hall v. Gilbert &

Bennett Mfg. Co., 241 Conn. 282, 297–98, 695 A.2d 1051

(1997). Accordingly, it is reasonable to conclude that,

by using language in § 9-371b that is similar to the language of § 9-329, the legislature intended that § 9-371b

would be given a similar interpretation.18 Indeed, we

can perceive no reason why the ‘‘general principles

governing the judiciary’s limited role in elections’’;

Caruso v. Bridgeport, supra, 285 Conn. 637; as

described in Bortner, should not apply equally to referenda.19 We therefore conclude that the failure to strictly

comply with the statutory notice provisions does not

automatically invalidate the result of a referendum conducted pursuant to § 10-56 (a). Rather, a referendum

may be judicially invalidated only when: ‘‘(1)there were

substantial violations of the requirements of the [governing statutes] . . . and (2) as a result of those violations, the reliability of the result of the election is

seriously in doubt.’’ Bortner v. Woodbridge, supra, 258.

We recognize that, as the dissent points out, there is

authority from other jurisdictions to support the propositions that statutory notice provisions for special elections are more strictly applied than those for general

elections,20 and, at least when there has been a complete

failure to comply with a statutory notice provision for

a special election, actual notice cannot cure the noncompliance.21 Several cases on which the dissent relies,

however, predate the advent of television, not to mention robocalling, mass public signage, mass mailings,
the Internet and e-mail. Thus, these cases were decided

at a time when it could be safely presumed that the

officially prescribed notice was the primary, and perhaps the only, means by which voters could learn about

elections, particularly special elections that are not held

on a regularly scheduled basis. While we do not deny

that, even today, there is a difference between a referendum and a regularly scheduled general election with

respect to presumed notice, a referendum, no less than

a general election for public officials, is a snapshot in

time, and invalidation of the results will disenfranchise

the voters who contributed to that snapshot by campaigning and voting for a particular result. Accordingly,

the general democratic principles militating in favor

of limited judicial intervention in elections unless the

noncompliance with governing statutes placed the

result of the election seriously in doubt should apply

equally to referenda. Moreover, although the difference

between special elections and general elections might

justify applying different evidentiary standards to the

two proceedings,22 we can perceive no reason why the

difference would justify depriving the relevant government officials of the power to conduct a special election

when they have failed to comply with statutory notice

provisions, which is essentially what the dissent is contending.

The dissent also contends that a conclusion that

actual notice is sufficient to cure a total failure to comply with the statutory notice provisions usurps the role

of the legislature, rewrites the governing statutes and

violates fundamental democratic principles. The dissent does not dispute, however, that, when there has

been only partial compliance with a statutory notice

provision for a referendum, the reliability of a referendum result is the touchstone by which we should determine its validity, not whether there was technical

compliance with governing statutes. Nor does the dissent dispute that this standard has its basis in the fundamental democratic principles underlying the election

process. See 26 Am. Jur. 2d 82, Elections § 280 (2014)

(‘‘courts are reluctant to defeat a fair expression of the

popular will in either a general or special election’’).

Accordingly, we can perceive no reason why automatic

invalidation of a referendum should be required when

there was no compliance with the statutory notice provisions, where, as in the present case, the evidence

establishes that the voters had actual notice of the referendum and strict compliance would not have affected

the outcome. Such a conclusion would be hypertechnical, and would exalt form over substance.23 Of course,

we strongly encourage public officials to comply fully

with all statutes governing elections and referenda, not

only because they have a duty to submit to the legislature’s constitutional authority to determine how elections will be conducted, but also to foreclose even the

possibility that the results of the referendum or election
will be judicially invalidated and to avoid the cost and

inconvenience of defending actions like the present

one. For the reasons that we have explained, however,

we cannot conclude that the failure to comply fully

with statutory notice provisions automatically invalidates the result. If the legislature disagrees with this

conclusion, nothing prevents it from making its intention clear. See id., § 277, p. 80 (‘‘[a] failure to comply

with statutory-notice requirements will invalidate an

election which has already been held only if it appears

that it prevented the electors from obtaining a free and

full expression of their will at the election or if the

statute contains a further provision voiding an election not held in accordance therewith’’ [emphasis

added]).

In support of their claim that strict compliance with

the statutory notice provisions for elections is required,

the plaintiffs rely on the decision of the United States

Supreme Court in Bloomfield v. Charter Oak Bank, 121

U.S. 121, 7 S. Ct. 865, 30 L. Ed. 923 (1887). Specifically,

the plaintiffs rely on the court’s statement that ‘‘[a] town

cannot make a contract, or authorize any officer or

agent to make one in its behalf, except by vote in a

town meeting duly notified or warned; and the notice

or warning must specify the matter to be acted on, in

order that all the inhabitants . . . may know in

advance what business is to be transacted at the meeting. If the subject of the vote is not specified in the

notice or warning, the vote has no legal effect, and

binds neither the town nor the inhabitants. No one can

rely upon a vote as giving him any rights against the

town, without proving a sufficient notice or warning of

the meeting at which the vote was passed.’’ Id., 129–30.

The plaintiffs contend that this language supports their

position that the failure to provide the statutorily

required warning for a referendum automatically renders the referendum results null and void. As the defendants point out, however, this court has held that a

town meeting and a referendum are entirely distinct

decision-making mechanisms. Sadlowski v. Manchester, 206 Conn. 579, 590, 538 A.2d 1052 (1988) (‘‘[f]or us

to imply such an equivalence [between town meetings

and referenda] would fly in the face of reality’’); id. (‘‘a

referendum in which individual voters cast individual

ballots in individual voting booths does not constitute

a town meeting’’).24 Our limited role in reviewing challenges to the legality of the election process derives

in large part from the ‘‘magnitude and complexity’’ of

elections; Caruso v. Bridgeport, supra, 285 Conn. 653;

and from the important democratic values underlying

the essential and necessary nature of an election as a

‘‘snapshot’’ of ‘‘the will of the people as recorded on

[a] particular day, after [a] particular campaign, and

as expressed by the electors who voted on that day.’’

Bortner v. Woodbridge, supra, 250 Conn. 256. These

concerns carry far less weight with respect to town
meetings. Indeed, if a town meeting is conducted without proper legal notice, it places no great burden on

the persons involved to publish proper notice and to

conduct another meeting. In contrast, when an election

or a referendum is invalidated, all of the enormous

effort and expense that went into the official planning

and public campaigns preceding the election or referendum are lost, and the persons who voted at the first

election or referendum are disenfranchised. Accordingly, the decision of the United States Supreme Court

in Bloomfield is of little persuasive value here.

The plaintiffs also rely on this court’s holding in State

v. Lenarz, 301 Conn. 417, 436–37, 22 A.3d 536 (2011),

cert. denied, U.S. , 132 S. Ct. 1095, 181 L. Ed.

2d 977 (2012), that, in a criminal case, the disclosure

to the prosecutor of defense materials containing information subject to the attorney-client privilege is inherently prejudicial.25 We observed in Lenarz, however,

both that (1) ‘‘[n]o severe definition of prejudice . . .

could accommodate the [broad] sixth amendment policies’’ underlying the right to be represented by counsel;

id., 434; and (2) that prejudice should be presumed

underthese circumstances because ‘‘it is highly unlikely

that a court can . . . arrive at a certain conclusion as

to how the government’s knowledge of any part of the

defense strategy might benefit the government . . . .’’

(Internal quotation marks omitted.)Id., 435. In contrast,

in the present case, the democratic values underlying

the election process militate in favor of limited judicial

intervention in that process, and nothing prevented the

plaintiffs from attempting to establish actual prejudice

by identifying voters within the regional school district

who would have voted against the referendum question

if the referendum had been properly noticed, and submitting documentation to that effect in support of their

opposition to the defendants’ motion for summary judgment.26 Accordingly, Lenarz has little application here.

Having rejected the plaintiffs’ claim that the defendants’ failure to comply with the notice provisions of

the governing statutes automatically required the invalidation of the June 18, 2013 referendum, we turn to

the questions of whether: ‘‘(1) there were substantial

violations of the requirements of the [governing statutes] . . . and (2) as a result of those violations, the

reliability of the result of the election is seriously in

doubt.’’ Bortner v. Woodbridge, supra, 250 Conn. 258.

Because it is dispositive, we first address the question

of whether the trial court properly determined that

there was no genuine issue of material fact as to

whether the results of the June 18, 2013 referendum

were seriously in doubt as the result of the defendants’

failure to properly warn the referendum pursuant to

the applicable statutes. The trial court concluded that,

in comparison with the actual efforts to publicize the

referendum, as previously described in this opinion,

compliance with the statutory notice requirement
‘‘would have been merely nominal . . . .’’ (Internal

quotation marks omitted.) In addition, the court noted

that ‘‘the referendum had a greater turnout than those

past referenda that took place with proper notice.’’27

(Internal quotation marks omitted.) Finally, the trial

court concluded that there was no evidence that ‘‘a

single vote was lost or affected by [the defendants’]

failure to publish a notice in strict compliance with

the statute.’’ (Internal quotation marks omitted.) The

plaintiffs do not dispute any of these conclusions, but

claim only that the defendants’ failure to properly warn

of the referendum in strict compliance with the applicable statutes was prejudicial per se, a claim that we have

already rejected. Accordingly, we conclude that the

plaintiffs have failed to meet their burden of establishing the existence of a genuine issue of material fact as

to whether the defendants’ failure to strictly comply

with the warning provisions of §§ 10-56 (a), 10-47c and

9-226 caused the referendum results to be seriously in

doubt.28 See Tuccio Development, Inc. v. Neumann, 114

Conn. App. 123, 126, 968 A.2d 956 (2009) (after party

who filed motion for summary judgment has established

that there is no genuine issue of material fact, ‘‘the

burden shifts to the party opposing such a motion [to]

provide an evidentiary foundation to demonstrate the

existence of a genuine issue of material fact’’ [internal

quotation marks omitted]); see also Caruso v. Bridgeport, supra, 285 Conn. 652–53 (rejecting plaintiff’s claim

that irregularities in election process required new election when plaintiff failed to established that irregularities ‘‘had resulted in an improper vote, the improper

counting of a vote or the improper failure to count a

vote’’); Caruso v. Bridgeport, supra, 653 (‘‘[U]nder our

system of government, the plaintiff bears the heavy

burden of proving by a preponderance of the evidence

that any irregularities in the election process actually,

and seriously, undermined the reliability of the election

results before the courts will overturn an election.

Although we are mindful of the difficulties that plaintiffs

face in meeting this burden in light of the statutory time

constraints on election contests and the magnitude and

complexity ofthe election process, ourlimited statutory

role in that process and our need to exercise great

caution when carrying out that role compel the conclusion that proof of irregularities in the process is not

sufficient to overturn an election in the absence of

proof that any of the irregularities actually affected the

result.’’ [Emphasis in original.]).

In reaching this conclusion, we are mindful that the

referendum question passed by only four votes. As we

have already indicated herein, however, nothing prevented the plaintiffs from attempting to prove actual

prejudice by identifying persons who would have voted

against the referendum if it had been properly noticed.

Indeed, unlike in Caruso, time constraints on the plaintiffs’ ability to investigate the prejudicial effect of the
defendants’ failure to comply with the applicable statutes were not an issue here. There were approximately

eleven months between the date that the plaintiffs filed

their original complaint and the dates that the defendants filed their motions for summary judgment during

which the plaintiffs could have conducted such an

investigation. We therefore conclude that the trial court

properly granted the defendants’ motions for summary judgment.

The judgment is affirmed.

In this opinion PALMER, EVELEIGH and ESPINOSA,

Js., concurred.

1 General Statutes § 10-56 (a) provides in relevant part: ‘‘A regional school

district shall be a body politic and corporate with power to sue and be sued;

to purchase, receive, hold and convey real and personal property for school

purposes; and to build, equip, purchase, rent, maintain or expand schools.

Such district may issue bonds, notes or other obligations in the name and

upon the full faith and credit of such district and the member towns to

acquire land, prepare sites, purchase or erect buildings and equip the same

for school purposes, if so authorized by referendum. Such referendum shall

be conducted in accordance with the procedure provided in section 10-

47c . . . .’’

2 General Statutes § 10-47c provides: ‘‘With the exception of the terms

which pertain to the capital contribution of member towns, the transfer of

property to the regional school district, the grades included, the size of the

board of education and the representation of each town on the board and

the towns to be served by the regional school district, the terms of the plan

approved through referenda pursuant to section 10-45 may be amended as

follows: If a regional board of education finds it advisable to amend the

plan or if the legislative body of a town served by the regional board of

education requests amendment of such plan, the regional board of education

shall prepare a report on the proposed amendment, including the question

to be presented, file a copy with the Commissioner of Education and the

clerk of each member town and make copies of such report available to

the public at a district meeting called to present the plan. After such public

hearing, the board shall set the date for referenda which shall be held

simultaneously in each member town between the hours of six a.m. and

eight p.m. At least thirty days before the date of the referenda, the regional

board of education shall notify the town clerk in each member town to call

the referendum on the specified date to vote on the specified question. The

warning of such referenda shall be published, the vote taken and the results

thereof canvassed and declared in the same manner as is provided for the

election of officers of a town. The town clerk of each town shall certify the

vote of the town to the regional board of education and the Commissioner

of Education. If the majority vote in each town of the district is in favor of

the proposed amendment to the plan, such amendment shall take effect

immediately.’’

3 General Statutes § 9-226, governing municipal elections, provides in relevant part: ‘‘The town clerk in each town shall, in the warning for such

election, give notice of the time and the location of the polling place in the

town and, in towns divided into voting districts, of the time and the location

of the polling place in each district. The town clerk shall record each such

warning. Notice of an election of a city or borough shall be given by publishing a warning in a newspaper published within the limits of such city or

borough, or having a general circulation therein, not more than fifteen nor

less than five days previous to holding the election, which warning shall

include notice of the time and the location of the polling place in such city

or borough and, in cities and boroughs divided into voting districts, of the

time and the location of the polling place in each district.’’

4 The plaintiffs are Thomas Arras, Sean Murphy and Gary Suslavich, who

are residents of the town of Woodbury, and Karen S. Miller and Peter T.

Miller, who are residents of the town of Bethlehem.

5 The defendants are Regional School District Number 14 (regional school

district); Jody Ian Goeler, the superintendent of schools for the regional

school district; the regional school district’s board of education; John Chapman, the chairman of the board of education; George Bauer, the former
chairman of the board of education; the town of Woodbury; the town of

Bethlehem; Gerald Stomski, first selectman of the town of Woodbury; and

Jeffrey Hamel, first selectman of the town of Bethlehem.

6 The plaintiffs appealed from the judgment of the trial court to the Appellate Court and we transferred the appeal to this court pursuant to General

Statutes § 51-199 (c) and Practice Book § 65-2.

7 The text of the e-mail from the board of education to the town clerks

provided: ‘‘Good morning, Town Clerks,

‘‘The [b]oard of [e]ducation approved the ballot question and date of the

building referendum at a special meeting last evening. Minutes are attached

reflecting their actions and the ballot question is attached in the format

you require.

‘‘Please forward the ballot information to the registrars responsible for

having ballots printed, and please let us know when absentee ballots will

be available.

‘‘Your assistance with this effort is most appreciated,

‘‘Debra W. Carlton’’

8 After the failure to notice the referendum was brought to the attention

of the Woodbury town clerk, Linda Carlson, she sent an e-mail to various

persons involved in the matter stating that she had received no direction

to notice and warn the referendum and that the town clerk’s office ‘‘is ‘[a]

keeper of [r]ecords,’ we do not interpret [the board of education’s] meeting

minutes/motions.’’ The defendant, Jody Ian Goeler, the superintendent of

schools for the regional school district, had acknowledged in a previous

e-mail that, ‘‘inadvertently, the reminder letter [to publish a warning] was

not included with the ballot question and minutes calling for referendum’’

that had been sent to the town clerks.

9 The news release provided: ‘‘NOTICE

‘‘News Release—For Immediate Release—Reminder

‘‘Please Publish ASAP

‘‘Thank You

‘‘The Region[al] 14 School [D]istrict in the town of Woodbury will be

holding a referendum on whether the School District shall appropriate

$63,820,605 for renovation of and additions to Nonnewaug High School, and

authorize the issue of bonds and notes in the same amount to finance

the appropriation.

‘‘The referendum will be held on Tuesday, June 18, 2003, at the Woodbury

Senior/CommunityCenter, 265 Main Street South in Woodbury. Allregistered

voters, as well as property taxpayers are eligible to vote in this referendum.

‘‘The polls will be open from [6] a.m. until [8] p.m.

‘‘Those seeking additional information may call the Registrar’s office . . .

or the Town Clerk’s office . . . .’’

10 The defendants also submitted evidence of other attempts to publicize

the referendum in support of their motions for summary judgment, including

publicized tours of the high school building, discussion of the renovations

and referendum at town board meetings and senior centers, the May 16,

2013 public hearing on the renovations that preceded the special meeting

at which the referendum was approved by resolution, and prominent signage

in the towns.

11 The operative complaint alleged numerous state statutory violations

(count one); various violations of the United States constitution (count two);

various violations of the Connecticut constitution (count three); ‘‘[a]buse

of [a]uthority’’ (count four); failure to provide proper legal notice of the

referendum in violation of various state statutes and in violation of their

civilrights under 42 U.S.C. § 1983 (count five); and violations of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110b et seq. (count

six). The plaintiffs also sought injunctive relief (count seven). The trial court

granted the defendants’ motion to strike the operative complaint as to counts

two, three, four and six, and the portion of count five alleging violations of

42 U.S.C. § 1983. In addition, the court granted the motion to strike as to

paragraphs thirty-nine through forty-three and forty-eight of the first count

containing the references to specific statutory violations. As a result, the

only surviving portions of the complaint were the allegations in count one

that the defendants had failed to provide proper legal notice of the referendum, certain paragraphs in count five alleging statutory and constitutional

violations, and the request for injunctive relief in count seven. See footnote

25 of this opinion.

12 The plaintiffs contended that the Litchfield action was void ab initio

because the plaintiffs in that action had brought the action without the prior

approval of the boards of selectmen of the respective towns.
13 The following defendants; see footnote 5 of this opinion; filed a motion

for summary judgdment on June 10, 2014: the regional school district, Jody

Ian Goeler, George Bauer and John Chapman. The remaining defendants,

the towns of Woodbury and Bethlehem, Gerald Stomski, and Jeffrey Hamel

filed a motion for summary judgment on June 24, 2014.

14 After the appeal was filed, this court granted permission to the Connecticut Association of Boards of Education to file an amicus curiae brief in

support of the defendants’ position.

15 As framed in their brief to this court, the plaintiffs’ claim is that the

trial court improperly denied their motion for summary judgment. The denial

of a motion for summary judgment, however, is not an appealable final

judgment. Hopkins v. O’Connor, 282 Conn. 821, 828, 925 A.2d 1030 (2007)

(‘‘[t]he denial of a motion for summary judgment ordinarily is an interlocutory ruling and, accordingly, is not a final judgment for purposes of appeal’’).

Nevertheless, because all of the plaintiffs’ claims and arguments apply

equally to the trial court’s granting of the defendants’ motions for summary

judgment, and because the defendants make no claim that the plaintiffs’

claims are not reviewable, we reframe the plaintiffs’ claim as raising a

challenge to the court’s granting of the defendants’ motions for summary

judgment.

16 The plaintiffs also contend that: (1) the trial court improperly relied on

the reasoning of the trial court’s decision in the Litchfield action because,

according to the plaintiffs, the plaintiffs in the Litchfield action had no

authority to bring the action and, therefore, it was ‘‘void ab initio’’; and (2)

the defendants in the present case ‘‘waived’’ any claim that they were entitled

to summary judgment because they conceded that they had not complied

with the provision of § 10-47c requiring that ‘‘warning of [a] referenda shall

be published, the vote taken and the results thereof canvassed and declared

in the same manner as is provided for the election of officers of a town.’’

We note that the Appellate Court dismissed the plaintiffs’ appeal from the

judgment of the trial court in the Litchfield action, and the plaintiffs have

not challenged that ruling. Because the plaintiffs have cited no authority

for the proposition that the trial court in the present case was barred from

relying on the reasoning of the trial court’s decision in the Litchfield action,

which is not the subject of any appeal or proper collateral attack, or for

the proposition that the defendants in the present case waived all legal

claims that could be raised in their motions for summary judgment by

conceding an issue of material fact, we reject these claims. See Rocco v.

Garrison, 268 Conn. 541, 548, 848 A.2d 352 (2004) (‘‘[t]he party moving for

summary judgment has the burden of showing the absence of any genuine

issue of material fact and that the party is, therefore, entitled to judgment

as a matter of law’’ [emphasis added; internal quotation marks omitted]).

Indeed, if the defendants had disputed the plaintiffs’ factual claim that there

had been no proper legal notice of the referendum, there would have been

no basis for their claim in their motions for summary judgment that there

was no genuine issue of material fact.

17 The plaintiffs cited § 9-371b in the operative complaint. There is no

indication in the record before us, however, that the plaintiffs invoked the

notice or expedited hearing provisions of that statute. Rather, it appears

that the plaintiffs proceeded in accordance with General Statutes § 9-7b (a)

(9), which they also invoked in their complaint. See General Statutes § 9-

7b (a) (9) (authorizing ‘‘a person who claims that he is aggrieved by a

violation of any provision of chapter 152 or any other provision of the

general statutes relating to referenda [to pursue] injunctive and any other

ancillary equitable relief directly from the Superior Court by the filing of a

complaint’’). Nevertheless, the fact that the language of § 9-371b closely

tracks the language of other statutes governing election contests supports

the conclusion that the legislature intended that claims involving referenda

would be subject to the same substantive standards as claims involving

elections, regardless of the specific procedure by which such claims are

brought.

18 The legislative history of § 9-371b sheds no light on this question.

19 Other courts also have held that the failure to strictly comply with

the statutory notice requirement for an election or a referendum does not

invalidate the election if there is no evidence that the failure to provide

proper legal notice affected the result. See Henard v. St. Francis Election

Committee, 301 Ark. 459, 461–62, 784 S.W.2d 598 (1990) (‘‘[T]he failure to

publish notice of an election is immaterial if the election is actually held

and the electors have not been deprived of the opportunity to express

themselves. [T]he voice of the people is not to be rejected for a defect or

want of notice, if they have in truth been called upon and spoken.’’ [Internal
quotation marks omitted.]); Wurst v. Lowery, 286 Ark. 474, 475, 695 S.W.2d

378 (1985) (‘‘the failure to publish notice of an election [on whether to allow

the sale of alcohol] is immaterial if the election is actually held and the

electors have not been deprived of the opportunity to express themselves’’);

Menlo Park City School District v. Tormey, 218 Cal. App. 2d 76, 84, 32 Cal.

Rptr. 82 (1963) (failure of governing board of school district to publish in

newspaper notice of election on question of whether maximum tax rate of

district should be increased did not invalidate election when county clerk

complied with statute requiring that sample ballot be sent to all registered

voters); People v. Carlsbad, 128 Cal. App. 2d 77, 84, 274 P.2d 740 (1954)

(‘‘[t]he test for determining whether an election is invalidated because of a

failure to strictly comply with the notice provisions prescribed by the statute

has frequently been stated to be whether the voters generally have had

knowledge of the election and full opportunity to express their will, or

whether the variance may have affected the result by depriving a sufficient

number of voters of the opportunity to exercise their franchise’’); People v.

Carlsbad, supra, 84 (when election notice failed to provide date of election

and information regarding issue to be voted on, failure did not invalidate

election when date of election ‘‘was repeatedly and widely publicized with

a cumulative effect far beyond that which would normally follow a mere

compliance with the statute’’); Weisgerber v. Nez Perce County, 33 Idaho

670, 675, 197 P. 562 (1921) (special election was valid even though there

was no substantial compliance with notice provision because ‘‘great weight

of authority’’ supports rule that ‘‘[s]tatutory directions as to the time and

manner of giving notice of elections are mandatory upon the officers charged

with the duty of calling the election, and will be upheld strictly in a direct

action instituted before an election; but after an election has been held,

such statutory requirements are directory, unless it appears that the failure

to give notice for the full time specified by the statute has prevented electors

from giving a full and free express of their will at the election’’); Weisgerber

v. Nez Perce County, supra, 675 (citing cases); Demaree v. Johnson, 150

Ind. 419, 426, 50 N.E. 376 (1898) (defective notice of special election does

not invalidate election if voters had actual notice); Dishon v. Smith, 10

Iowa 212, 218–19 (1859) (result in election on whether to move county seat

was valid even without notice when ‘‘there was an election and the people

of the county voted, and it is not alleged that any portion of them failed in

knowledge of the pendency of the question, or to exercise their franchise’’);

Ginn v. Bonita, 62 So. 2d 159, 162 (La. App. 1952) (failure to publish notice

of election in newspaper as required by statute did not invalidate election

when it was clear from large percentage of electorate who voted ‘‘that

publication in the official journal would not have had an appreciable effect

upon the number voting’’); Ellis v. Karl, 7 Neb. 381, 390 (1878) (stating in

dictum that failure to provide proper notice of special election would not

invalidate election when there was no evidence that ‘‘any different result

would have been obtained by giving the full statutory notice’’); Albuquerque

v. Water Supply Co., 24 N.M. 368, 382, 174 P. 217 (1918) (failure to comply

with notice provision for election on bond issues did not require invalidation

of election results); State ex rel. Board of Education v. Jones, 131 N.E.2d

704, 708 (Ohio 1955) (when board of education failed to strictly comply with

statute requiring publication of notice of election on bond issue, extensive

advertising campaign, including distribution of literature, mailings to residents, house to house canvassing, posting of notices in public places, newspaper items and public meeting constituted ‘‘substantial compliance as to

notice’’); In re License of Wilson-Patton Post 536, Inc., 62 Pa. D. & C. 215,

229–30 (1948) (failure to set forth place where election was to be held did

not invalidate referendum); Yonce v. Lybrand, 254 S.C. 14, 17, 173 S.E.2d

148 (1970) (failure to comply strictly with statutory notice provision did not

invalidate election when ‘‘[n]o inference may be drawn from the record that

a single vote was lost or affected by failure to publish a notice’’); Yonce v.

Lybrand, supra, 17 (‘‘unless the result of an election is changed or rendered

doubtful, it will not be set aside on account of mere irregularities or illegalities’’ [internal quotation marks omitted]); State v. Quarterly County Court,

209 Tenn. 153, 155, 351 S.W.2d 390 (1961) (when voters have actual notice

of election and have participated in election to usual extent, election is not

invalidated by failure to comply strictly with statutory notice provision);

Norman v. Thompson, 96 Tex. 250, 254, 72 S.W. 62 (1903) (failure to strictly

comply with notice provision for referendum did not constitute grounds for

contesting referendum); Vickers v. Schultz, 195 Wn. 651, 656–57, 81 P.2d

808 (1938) (failure of clerk of election board to post notice of election on

formation of public utility district in each polling place in county as required

by statute did not require invalidation of election when election was subject

‘‘of continued public discussion and controversy’’ from time that formation

of district was first proposed up to time of election and ‘‘[t]he vote was

such, as compared with the votes upon other propositions, as to indicate

an intelligent and well-informed expression of the popular will’’ [internal

quotation marks omitted]).

The dissent contends that our reliance on these cases is misplaced
because, in all but two of them, ‘‘there was at least partial, if not substantial,

compliance with the applicable statutory notice requirements.’’ See Wurst

v. Lowery, supra, 286 Ark. 475; Dishon v. Smith, supra, 10 Iowa 218; see

also Weisgerber v. Nez Perce County, supra, 33 Idaho 675 (special election

was valid even though there was no substantial compliance with notice

provision). The question that the court addressed in all of the other cases,

however, was whether the defect in the notice could have affected the result

of the election, not whether there was at least partial compliance with the

statutory notice provision. See Henard v. St. Francis Election Committee,

supra, 301 Ark. 463 (‘‘[n]one of the improprieties alleged by [the] appellants

appear to have affected the outcome of this election’’); Menlo Park City

School District v. Tormey, supra, 218 Cal. App. 2d 84 (‘‘the substantial rights

of the electors were in nowise affected’’); People v. Carlsbad, supra, 128

Cal. App. 2d 84 (where ‘‘a considerable deviation [from notice requirement]

appears the burden rests upon the party seeking to uphold the election to

show that such variance has not affected the result’’); Demaree v. Johnson,

supra, 150 Ind. 426 (‘‘if it were shown that the failure to give the notice in

the manner provided for in the statute had resulted in preventing such a

number of electors from participating in the election as would have changed

the result if they had voted, then the failure to give the notice as required

by the statute would be fatal’’); Ginn v. Bonita, supra, 62 So. 2d 162 (‘‘publication in the official journal would not have had an appreciable effect upon

the number voting’’); Ellis v. Karl, supra, 7 Neb. 390 (question before court

was whether ‘‘any different result would have been obtained by giving the

full statutory notice’’); Albuquerque v. Water Supply Co., supra, 24 N.M. 382

(when official has failed to comply with notice requirements, result will not

be invalidated unless ‘‘it . . . be shown that, if the statute had been strictly

complied with, the result would have been different’’); State ex rel. Board

of Education, Bellefontaine City School District v. Jones, supra, 131 N.E.2d

708 (‘‘[n]o claims are made that the result of the election might have been

different, or that any elector was induced to cast his ballot otherwise than

he would have done had the notice fully complied with the statute’’); In re

License of Wilson-Patton Post 536, Inc., supra, 62 Pa. D. & C. 230 (when

‘‘failure to set forth in the notice the place where the election was to be

held . . . had no vital influence on the result of the election [and did not]

prevent a full and free expression of the popular will’’ election would not

be invalidated); Yonce v. Lybrand, supra, 254 S.C. 18 (‘‘where the result of

an election is not made doubtful nor changed, irregularities or illegalities,

in the absence of fraud, will not cause the expressed will of the body of

the voters to be set aside’’ [internal quotation marks omitted]); State v.

Quarterly County Court, supra, 209 Tenn. 155 (‘‘[w]hen no one is prejudiced

or damaged by the failure to comply strictly with the [notice] statute, the

election will not be disturbed’’); Norman v. Thompson, supra, 96 Tex. 254

(‘‘if it appears from the evidence that . . . irregularities existed as to render

the true result of the election impossible to be arrived at, or very doubtful

of ascertaining, the court shall adjudge such election to be void’’ [internal

quotation marks omitted]); Vickers v. Schultz, supra, 195 Wn. 657 (‘‘[t]he

want of statutory notice, it is clear, did not result in deprivation of sufficient

number of the electors of the opportunity to exercise their franchise to

change the result of the election’’).

20 See Bilek v. Chicago, 396 Ill. 445, 461, 71 N.E.2d 789 (1947) (‘‘[t]he

election provided for is a special election, since there is no general law

providing for it and fixing the time when it shall be held, and in such a case

if notice is not given as required for the length of time and by the number of

notices required by the statute, the election will be void’’ [internal quotation

marks omitted]); Walker v. Oak Cliff Volunteer Fire Protection District,

807 P.2d 762, 766 (Okla. 1990) (‘‘Notice requirements may be relaxed for

general elections, because the public is presumed to know when they are

held. However, special elections are not set on a date certain.’’ [Footnote

omitted.]); see also 26 Am. Jur. 2d 79–80, Elections § 277 (2014) (‘‘[n]otice

requirements may be relaxed for general elections because the public is

presumed to know when they are held, but strict compliance with notice

requirements for a special election normally is required although some

jurisdictions only require substantial compliance’’ [footnotes omitted]); but

see Hill v. Skinner, 169 N.C. 405, 411, 86 S.E. 351 (1915) (‘‘In the case of

special elections, when the law does not fix the time and place of holding

the same, but they are to be fixed by some authority, failure to give notice

or issue a proclamation of the election will render it a nullity unless the

people have actual knowledge and attend, so that the result is not affected.

If it appears that the people generally had actual knowledge of a special

election, so that the result would not have been different if proper notice

had been given, failure to give such notice does not vitiate the election.’’

[Internal quotation marks omitted.]); 26 Am. Jur. 2d, supra, § 277, p. 80

(‘‘[a] failure to comply with statutory-notice requirements will invalidate an

election which has already been held only if it appears that it prevented

the electors from obtaining a free and full expression of their will at the

election or if the statute contains a further provision voiding an election
not held in accordance therewith’’), citing Moore v. Page, 148 Ariz. 151, 159,

713 P.2d 813 (1986) (stating in dictum that failure to strictly comply with

statutes governing special election, thereby potentially disenfranchising voters, would not require invalidation of election when plaintiff failed ‘‘to show

that [noncompliance] may have affected the result of the election’’); 26 Am.

Jur. 2d, supra, § 280, p. 82 (‘‘Even in special elections . . . following the

particular form and manner required by a statute for giving notice is not

absolutely essential provided that there has been a substantial compliance

with statutory provisions. Further, the courts are reluctant to defeat a fair

expression of the popular will in either a general or special election. Thus,

any errors or defects claimed to exist in a notice of election generally will

not invalidate the election unless there is some showing that the electors

were in fact misled by such defects.’’ [Footnotes omitted.]).

21 See Whittle v. Whitley, 202 Ga. 633, 44 S.E.2d 241 (1947) (partial compliance with notice provision was not sufficient); Chanute v. Davis, 85 Kan.

188, 190, 116 P. 367 (1911) (same); Chumley v. Williams, 639 S.W.2d 557,

560 (Ky. App. 1982) (‘‘where an official makes no effort to comply with the

[notice] statute, that failure is fatal and the doctrine of substantial compliance cannot be utilized’’); Neal v. Board of Supervisors, 217 Miss. 102, 111,

63 So. 2d 540 (1953) (partial compliance with notice provision was not

sufficient); State ex rel. Berkeley v. Holmes, 358 Mo. 1237, 1243–44, 219

S.W.2d 650 (1949) (time requirements of statutory notice provisions are

mandatory and failure to comply strictly with them invalidates election);

Appeal of Frederick H. Harper, Jr., Inc., 150 Pa. Super. 569, 575, 29 A.2d

236 (1942) (‘‘[t]he entire failure to give the statutory notice rendered the

special election invalid’’); Turner v. Lewie, 201 S.W.2d 86, 89–90 (Tex. Civ.

App. 1947) (partial compliance with statutory notice provision was not

sufficient); see also footnote 23 of this opinion; but see Wurst v. Lowery,

286 Ark. 474, 475, 695 S.W.2d 378 (1985) (‘‘the failure to publish notice of

an election [on whether to allow the sale of alcohol] is immaterial if the

election is actually held and the electors have not been deprived of the

opportunity to express themselves’’); Dishon v. Smith, 10 Iowa 212, 218

(1859) (failure to provide notice of election on question of whether to move

county seat did not invalidate result because ‘‘the people are not to be

disfranchised, to be deprived of their voice, by the omission of some duty

by an officer, if an election has, in fact, been held at the proper time’’).

22 In other words, because the public is presumed to know when regular

elections are held, it is possible that evidence that would be insufficient to

establish that the result of a general election was seriously in doubt might

be sufficient to establish that the result of a referendum was seriously in

doubt. The evidence in the present case, however, overwhelmingly supports

the conclusion that the voters in the regional school district, as a class,

received at least as much notice of the referendum as they would have

received if the defendants had strictly complied with the statutory notice

provisions, and the plaintiffs presented no evidence that any individual voter

who otherwise would have voted in the referendum was prevented from

doing so by the defendants’ failure to comply with the statutory notice provisions.

23 Accordingly, we are not persuaded by the cases that have adopted such

reasoning. See Chumley v. Williams, 539 S.W.2d 557, 559–60 (Ky. App.

1982) (if official partially complies with notice provision and ‘‘attempted

compliance, together with other publicity, [is] sufficient to notify the voters

of the pending election,’’ election will be validated, but ‘‘where an official

makes no effort to comply with the statute, that failure is fatal and the

doctrine of substantial compliance cannot be utilized,’’ even if voters had

actual notice and strict compliance with notice provision would not have

affected result).

24 The dissent relies on this court’s decision in Pollard v. Norwalk, 108

Conn. 145, 142 A. 807 (1928), to support its conclusion that this court

previously has held that towns must strictly comply with notice provisions

for special elections. It is not entirely clear, however, whether that case

involved a defective notice for an election or a defective notice for a town

meeting. At one point, the opinion refers to a ‘‘city and town election’’ at

which voters approved the issuance of bonds; id., 146; but the opinion then

states that ‘‘notice of the meeting’’ did not comply with the notice provisions

of the city charter. (Emphasis added.) Id. In addition, the court in Pollard

relied entirely on case law governing the notice requirements for town

meetings. Id. In any event, the decision in Pollard is cursory, and the court

did not engage in any substantive analysis of the public policy concerns

implicated by the judicial invalidation of elections. Accordingly, to the extent

that Pollard supports the dissent’s position, we conclude that it is inconsistent with later case law, namely Bortner and Sadlowski, and, therefore, it

must be overruled.
25 The trial court rejected the plaintiff’s claim pursuant to Lenarz because

Lenarz involved the constitutional right to counsel while, in the present

case, the plaintiffs’ constitutional claims were stricken from the operative

complaint. The plaintiffs contend that, to the contrary, their constitutional

due process claim raised in count five of the operative complaint survived

the defendants’ motion to strike. See footnote 11 of this opinion. We note,

however, that the trial court struck an identical constitutional claim in count

two of the operative complaint. In any event, regardless of whether the trial

court intended to strike the plaintiffs’ constitutional due process claim,

that claim was premised on the alleged violation of the statutory notice

provisions. The plaintiffs are essentially asking us to alter the standard that

this court applies to a claim that an election must be invalidated because

of irregularities in the election process by recharacterizing that claim as a

constitutional claim. We decline this invitation. Accordingly, we conclude

that, even assuming that the plaintiffs’ due process claim survived the defendants’ motion to strike, because we conclude that the trial court properly

granted summary judgment for the defendants on the plaintiffs’ statutory

claims, there is no basis for the constitutional claim.

26 We do not suggest that a plaintiff who has claimed that there was no

compliance with a statutory notice provision for an election or a referendum

is always required to identify specific persons who would have voted if the

officials conducting the proceeding had complied with the statutory notice

provision. For example, if there was no statutory or actual notice of the

election or referendum, it reasonably could be inferred from that fact alone

that a significant number of voters were prevented from voting. Where, as

here, the public received actual notice of the referendum that equaled or

exceeded the statutorily required notice, however, no such inference can

be drawn.

27 As we have indicated herein, the vote in the June 18, 2013 referendum

was 1269 to 1265 in favor of approving the referendum question, for a total

of 2534 votes cast. The defendants presented an affidavit in support of

their motions for summary judgment indicating that, in eight other recent

referenda within the regional school district between May 4, 2011, and May

6, 2014, a total of votes cast was 2402, 2132, 2053, 2039, 2090, 2175, 2325,

and 2101, respectively. Thus, there were more votes cast in the June 18,

2013 referendum than in any of these other referenda.

28 Because we conclude that there was no genuine issue of material fact

as to whether the defendants’ failure to strictly comply with the warning

provisions of §§ 10-56 (a), 10-47c and 9-226 caused the referendum results

to be seriously in doubt, we need not consider whether the defendants

substantially complied with those provisions. See Bortner v. Woodbridge,

supra, 250 Conn. 258 (election may be judicially invalidated only when ‘‘[1]

there were substantial violations of the requirements of the [governing

statutes] . . . and [2] as a result of those violations, the reliability of the

result of the election is seriously in doubt’’ [emphasis added]). We also need

not address the defendants’ claim, as an alternative ground for affirmance,

that they are entitled to judgment as a matter of law with respect to the

plaintiffs’ claim for damages because §§ 9-7b (a) (9) and 9-371b provide the

exclusive vehicles for contesting a referendum, and those statutes provide

only equitable relief.