Federation of Connecticut Taxpayer Organizations

You asked (1) whether a nonresident property owner is eligible to vote on a town referendum question when the property is held in a trust, (2) what town attorneys have advised on this question, and (3) for the legislative history of a proposal on this subject introduced several years ago.

The Office of Legislative Research is not authorized to issue legal opinions and this memorandum should not be construed as one.

SUMMARY

The law (CGS � 7-6) does not specifically address whether the owner of property held in trust can vote on a local question. It generally allows registered voters and adults who pay property taxes eligible to vote on these questions.

Attorney general opinions have advised that a town's attorney must resolve interpretations of � 7-6 with respect to those who are eligible to vote.

We have not found any court cases directly on point, but in related cases (1) a Superior Court judge ruled in 1955 that the existence of a mortgage on property had no effect on the owner's eligibility to vote and (2) a 1993 case, affirmed in 1995, held that a town charter could restrict the right to vote on a referendum question to residents of the town, to the exclusion of nonresident property owners.

The Connecticut Conference of Municipalities and the Connecticut Association of Municipal Attorneys have no guidelines for attorneys to follow on this question nor do they have information on the advice attorneys have given on the question, if and where it may have come up. But the Secretary of the State's Office reports that they believe the consensus among attorneys is against allowing trustees to vote at a referendum.

Legislation proposed in 1996 would have allowed a person who is trustee of real property to vote at municipal referendums as long as he meets the other age and tax liability requirements. The bill died in committee after a public hearing in which no one testified on the measure.

STATUTORY LAW

The statute in question, CGS � 7-6, establishes eligibility to vote at a town meeting (and adjourned town meeting on a referendum question) for "any person who is an elector of such town...and any citizen of the United States of the age of eighteen years or more who, jointly or severally, is liable to the town, district, or subdivision for taxes assessed against him on an assessment of not less than one thousand dollars on the last-completed grand list of such town, district, or subdivision...."

OPINIONS AND COURT CASES

In 1995, Attorney General Richard Blumenthal issued a formal opinion to Representative Robert M. Ward on the eligibility of a trustee to vote at a school district meeting under � 7-6 (A.G. Op. No. 1995-033, dated November 22, 1995). The opinion takes note of language in � 7-339p(c) that permits a "holder of record of a taxable interest in real property, whether such record holder is a corporation, partnership, unincorporated association, trustee, fiduciary, guardian, conservator, or other form of entity, or any combination thereof" to vote in any referendum establishing a special services district (emphasis added). But the attorney general makes the distinction that, because � 7-6 is limited to "citizens," the legislative intent in enacting that section may have been to exclude other entities, such as trustees.

The opinion states "unfortunately we cannot resolve these issues with any finality as we are not in a position to advise on interpretations of Sec. 7-6 as it impacts on local taxation...[Y]our question is one reserved for the municipal attorney." The general statutes, special acts, and charter provisions must be consulted to resolve eligibility.

In a case somewhat related to the question of the status of a trustee, a Superior Court judge issued a declaratory ruling that the determination on whether a prospective voter is entitled to vote is made without reference to the existence or amount of a mortgage on the property (Gunzer et al. v. Town of New Fairfield, 19 Conn. Sup. 231 (1955)). The court struck down a moderator's ruling that excluded property owners from voting unless the assessed value of their property exceeded $1,000 after deducting the amount of any mortgage of record against the property at the time of the vote.

But in a 1993 New London case, the trial court ruled that a charter town could establish a requirement that all electors be residents of the municipality in order to vote on a referendum question (Massad v. New London, 43 Conn. Sup. 297, affirmed 36 Conn. App. 587). Nonresident property owners were denied the right to vote on a budget and tax rate ordinance submitted to electors at a referendum. In their motions, the plaintiffs alleged the referendum was illegal because they were denied a vote and that their constitutional rights to equal protection had been denied.

The court ruled against them, reasoning that under New London's charter the referendum measure was not a town meeting and � 7-6 did not apply. It also held that "New London's determination that persons who want to vote on city matters must also reside within its boundaries is a reasonable exercise of its discretion and within the power granted to it to run its own affairs, which is tailored to legitimate governmental concerns and is not overridden by the interests of persons owning taxable property in the town who prefer to live elsewhere" (at 313).

A 1986 Attorney General's Opinion (#86-092) is consistent with the court's ruling in Massad that non-resident taxpayers may not participate in a referendum appearing "on the ballot." The opinion is based on the assumption that the question is put to a vote at a regular or special election (at which only registered voters can vote), rather than an adjourned town meeting where � 7-6 covers eligibility. But in a referendum defined as "a question or proposal which is submitted to a vote of the electors or voters, as the case may be, of a municipality at a meeting of such electors or voters, which meeting is not an election, as defined...and is not a town meeting" (CGS � 9-1n(2)), the attorney general recommends that interested parties consult their municipal attorney. Again, because a number of different referendum issues may be presented, there is no established answer to the question of eligibility to vote.

The Office of the Secretary of the State's Elections Division has deferred to the 1995 attorney general's opinion that town attorneys resolve this issue. Ted Bromley, an attorney in the secretary's office, tells us that most town attorneys have interpreted the law to mean that trustees cannot vote at a referendum.

PROPOSED LEGISLATION

A 1996 bill (HB 5695, "An Act Concerning Voting by Non-Residents Holding Connecticut Property in Trust") would have added to � 7-6 language similar to that found in � 7-339(c), specifying that a person who has taxable interest in property and is liable for the property taxes on it is entitled to vote on a referendum question even if the person holds the interest as a trustee. The bill was referred to the Government Administration and Elections Committee, which held a public hearing on it on March 8, 1996. There was no testimony on the bill, which died in committee.

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