NOT FOR PUBLICATION WITHOUT THE WRITTEN APPROVAL OF THE COMMITTEE ON OPINIONS

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1 NOT FOR PUBLICATION WITHOUT THE WRITTEN APPROVAL OF THE COMMITTEE ON OPINIONS MAYOR DAWN ZIMMER, COUNCIL PRESIDENT PETER CUNNINGHAM, COUNCILMAN RAVINDER BHALLA, COUNCILWOMAN JENNIFER GIATTINO and COUNCILMAN DAVID MELLO, Plaintiffs, SUPERIOR COURT OF NEW JERSEY LAW DIVISION : HUDSON COUNTY DOCKET NO. HUD-L v. OPINION COUNCILWOMAN THERESA CASTELLANO, COUNCILWOMAN ELIZABETH MASON, COUNCILMAN TIMOTHY OCCHIPINTI and COUNCILMAN MICHAEL RUSSO, Defendants. BARISO, A.J.S.C. DATE OF DECISION: February 1, 2013 William W. Northgrave for plaintiffs (McManimon, Scotland & Baumann, LLC, attorneys). Steven W. Kleinman for defendants (Gregg F. Paster & Associates, attorneys) Jerry H. Goldfeder, of the New York Bar, admitted pro hac vice, of counsel (Strook & Strook & Lavan, LLP, attorneys). INTRODUCTION This decision stems from a dispute over the filling of a vacancy on the Hoboken City Council. The matter was initiated by way of an Order to Show Cause supported by a verified complaint in lieu of prerogative writs. Plaintiffs, Mayor Dawn Zimmer and several members of

2 the Hoboken City Council, (hereinafter Mayor Zimmer Plaintiffs ) seek a judgment declaring that the abstentions of Councilman Michael Russo and Councilwoman Beth Mason with regard to the appointment of James Doyle to the Council were correctly interpreted as negative votes sufficient to create a tie that allowed Mayor Dawn Zimmer to cast the deciding vote. Accordingly, the court must now determine the legal effect of an abstention. BACKGROUND The City of Hoboken operates under the Faulkner Act, pursuant to N.J.S.A. 40:69A-1, et seq. The City s Charter provides for nine council members to serve on the city council; six by ward and three at-large. On September 19, 2012, Council Member at-large Carol Marsh announced her resignation, effective October 3, The Municipal Vacancy Law, at N.J.S.A. 40A:16-4(a), provides that If [a] vacancy occurs subsequent to September 1 of the last year of the term of the officer whose office has become vacant, the office may be filled for its unexpired term by appointment by the governing body. N.J.S.A. 40A:16-12 goes on to explain that the remaining members of the City Council may fill the vacancy within 30 days of its occurrence or the position shall remain vacant until an election can be held. Under N.J.S.A. 40A:16-7, a majority vote of the remaining members of a governing body is required in order to fill a vacancy on the City Council. In the event that a tie vote occurs, the Mayor is permitted to cast a vote pursuant to N.J.S.A. 40A:16-8. On October 3, 2012, the Council held a meeting wherein seven (7) of the eight (8) remaining council members were present. Councilwoman Mason was absent. At this meeting, Mr. Doyle was nominated to fill the seat vacated by Carol Marsh. In the vote that followed, Council members Cunningham, Bhalla, Mello and Giattino each voted in favor of Mr. Doyle, 2

3 while Council members Castellano and Occhipinti each voted against Mr. Doyle s appointment. Councilman Russo abstained from voting. Councilman Russo s abstention and Councilwoman Mason s absence were deemed by the Council to be negative votes as to the appointment of Mr. Doyle, creating a four (4) to four (4) tie vote with regard to filling the vacancy. Accordingly, Mayor Zimmer then exercised her statutory power to break the perceived tie, voting in favor of Mr. Doyle. Following the Mayor s vote, Mr. Doyle was sworn into office as a Council member. In response to the controversy stemming from the October 3, 2012 vote, the issue of Mr. Doyle s appointment was once again put to a vote at the October 17, 2012 Council meeting. This vote resulted in Council members Cunningham, Bhalla, Mello and Giattino voting in favor of Mr. Doyle, and Council members Castellano and Occhipinti voting against Mr. Doyle s appointment. Councilwoman Mason abstained from voting and Councilman Russo was absent. Once again, believing that the negative votes combined with Councilwoman Mason s abstention and Councilman Russo s absence created a tie; the Mayor cast a vote in favor of appointing Mr. Doyle as a Councilman. On October 23, 2012, Defendants filed a Verified Complaint and Order to Show Cause (Docket No. HUD-L ), seeking to invalidate the October 3 and October 17 votes and to declare that Mr. Doyle had never been lawfully appointed to the Council. On November 16, 2012, this court ruled that the Vacancy Law requires a majority vote of all the remaining members of the governing body (here, five of eight members) to fill a vacant council position. Pursuant to N.J.S.A. 40A:16-8, in the event of a tie, the Mayor may vote. The results of the October 3 and October 17 votes were four (4) yeas, two (2) nays, and one (1) abstention; therefore, no tie occurred. Accordingly, Mr. Doyle s appointment was void. 3

4 On November 20, 2012, Plaintiffs, the Mayor of Hoboken and the four (4) Council members who supported Mr. Doyle s appointment, filed a Verified Complaint and Order to Show Cause seeking an Order compelling the full Council to attend a meeting and vote on a resolution to fill the Council vacancy. Following a hearing on December 14, 2012, this court entered an order directing all remaining members of the Council to attend the December 19, 2012 Council meeting and vote on filling the vacancy. Although the court was prepared to rule on the effect of an abstention at this hearing, counsel for Defendants objected on the basis that the issue was not ripe for adjudication. The court provided that its order would be stayed in the event that Defendants filed an emergent appeal prior to December 19, On December 18, 2012, Defendants filed a motion seeking leave to file an interlocutory appeal of this court s December 14, 2012 Order. On January 8, 2013, the Appellate Division denied Defendants request. Subsequently, the Council convened on January 16, 2013, to decide the issue of Mr. Doyle s appointment. Predictably, at the January 16, 2013 Council meeting, Council members Cunningham, Bhalla, Mello and Giattino each voted in favor of Mr. Doyle, while Council members Castellano and Occhipinti voted against Mr. Doyle s appointment. Council members Russo and Mason abstained. The Council once again interpreted the vote as a tie, and Mayor Zimmer cast a fifth vote in favor of the appointment. This court must now interpret the legal effect of abstentions in order to determine whether or not Mayor Zimmer was permitted to cast the deciding vote appointing Mr. Doyle to the Council. 4

5 DISCUSSION The question facing the court is simply stated; how shall an abstention be interpreted under the Municipal Vacancy Law, N.J.S.A. 40A:16-1, et seq.? Plaintiffs put forth a two pronged argument in support of their position. First, Plaintiffs rely upon several common law cases regarding the treatment of abstentions in support of their argument that where a statute requires a specific majority vote, abstentions are to be counted as negative votes. Second, they argue that to interpret abstentions as anything other than negative votes would be to subvert the clear intent of the Municipal Vacancy Law on how vacancies in Council positions are filled. Alternatively, the Defendants distinguish the common law cases relied upon by Plaintiffs, and rest their position upon the Council s adopted procedural rules in support of the contention that an abstention is not to be counted at all. The Municipal Vacancy Law The governing law in a municipality with a Mayor-Council form of government that controls the filling of a vacancy on the Council is the Municipal Vacancy Law, N.J.S.A. 40A:16-1, et seq. If a vacancy occurs, the Council may, but is not required to, appoint a successor within thirty (30) days. If no appointment is made, the office shall remain vacant until the next election. N.J.S.A. 40A: In the event that the Council arrives at a deadlock in deciding whether or not to fill a vacancy, N.J.S.A. 40A:16-8 provides a remedy; [A] mayor shall be permitted to vote to fill a vacancy in the membership of a governing body only in the case of a tie vote. When the Council convened on January 16, 2013 to consider the appointment of Mr. Doyle as directed by order of this court, four (4) Council members voted in favor of Mr. Doyle, two (2) Council members voted against him, and two (2) members abstained. In this limited circumstance, to afford an abstention any meaning other than a negative vote under the 5

6 Municipal Vacancy Law would prevent the Mayor from voting and nullify the authority granted by the legislature to municipal governing bodies to fill vacancies. To decide otherwise would in effect permit a single Council member to control the entire deliberative process. This certainly could not have been the intent of the legislature in enacting the Municipal Vacancy Law. Further, this court relies upon a number of common law cases, as well as Robert s Rules of Order which were affirmatively adopted by the Hoboken City Council, in concluding that the voting requirements set forth in the Municipal Vacancy Law compel this court to interpret abstentions as negative votes. State of the Common Law In New Jersey, the law surrounding the effect of an abstention by a member of a public body is somewhat convoluted. Early cases held that [W]here no specified number of votes is required, but a majority of a board regularly convened are entitled to act, a person declining to vote is to be considered as assenting to the votes of those who do. Mount v. Parker, 32 N.J.L. 341, 342 (1867). Later decisions interpreted abstentions as affirmative votes, unless an abstaining member voices opposition, in which case the abstention is to be counted as a negative vote. Aurentz v. Planning Board Tp. of Little Egg Harbor, 171 N.J. Super. 135, 139 (Law Div. 1986); Kozusko v. Garreston, 102 N.J.L. 508, 510 (1926). Subsequent case law sought to clarify the confusion as to how to treat abstention votes by holding that if a statute requires a specific number of votes for a majority, then abstentions are to be counted as negative votes. Patterson v. Cooper, 294 N.J. Super. 6, 18 (Law Div. 1994) (citing Garner v. Mountainside Bd. Adj., 212 N.J. Super. 417 (Law Div. 1986)). The complicated nature of the effect of abstentions is evidenced by its review from the New Jersey Law Revision Commission (NJLRC). The NJLRC was legislatively enacted in order 6

7 to review existing laws and offer suggestions on how to clarify them. N.J.S.A. 1:12A-8. The New Jersey Law Revision Commission addresses the effect of abstentions by stating: [I]f a statute requiring a particular number of affirmative votes for passage of a matter, abstentions do not count as affirmative votes. The rule applies both where the statute specifies a particular number and where it requires a particular percentage of the membership of the public body. It is often stated that in such circumstances, an abstention is a negative vote. Since a particular number of affirmative votes is required, there is no difference between no vote and a no vote. 1 [John M. Cannel, Esq., Executive Director, Final Report Relating to the Effect of Abstentions, NEW JERSEY LAW REVISION COMMISION (Apr. 2011), available at njlrc.org] (internal citations omitted). The matter at hand presents such an instance. The Municipal Vacancy Law requires that an appointment to fill a vacancy be made by a vote of a majority of the remaining members of the council. N.J.S.A. 40:A16-7. As this court explained in prior related litigation, a majority of the remaining members following Ms. Marsh s resignation means five (5) out of eight (8) possible votes. 2 Accordingly, Mr. Doyle needs five (5) affirmative votes out of a possible eight (8). Therefore, a specific, fixed number of actual affirmative votes are required for a majority and the two (2) abstentions count as negative votes under the common law. See Patterson, supra, 294 N.J. Super. at 18. The Hoboken City Council Rules on the Effect of Abstention The Council Rules are consistent with the common law with respect to the effect of an abstention in cases where a specific number of affirmative votes are required. On June 20, 2012, the Hoboken City Council adopted Council Rules as permitted under the Faulkner Act, N.J.S.A. 1 Part of the NJLRC s mandate is to provide the Legislature with recommendations on improving current statutes. In April 2011, the NJLRC recommended that the Legislature adopt legislation declaring that an abstention shall not be counted as voting either for or against [a] matter. Ibid. To date, no legislative action has been taken on this recommendation. 2 Castellano v. Zimmer, Docket No. HUD-L , reasons placed on the record November 16,

8 40:69A-36(f). The Council Rules provide, inter alia, that [i]n addition to voting yea or nay, a Council member may abstain or vote present, which has the effect of an abstention. See Rule XI. Method of Voting (attached to Certification of Steven W. Kleinman, Exhibit B at 7). While the Council Rules make no further mention of abstentions, they do provide that Robert s Rules of Order shall be followed at regular meetings to the extent that they do not conflict with these Rules of Procedure. See Rule I. Method of Voting (attached to Certification of Steven W. Kleinman, Exhibit B at 1). Therefore, as the Council Rules are silent as to the meaning of abstentions, their express incorporation of Robert s Rules of Order compels this court to review Robert s Rules in order to ascertain the effect of an abstention. Corresponding with the Council Rules, the current edition of Robert s Rules provides that to abstain means not to vote at all ; however, Robert s Rules acknowledges that where the vote required is a majority or two thirds of the members present, or a majority or two thirds of the entire membership, an abstention in such cases has the same effect as a negative vote. RONR (11 th ed.), p. 45, ll ; p. 403, ll Here, the Municipal Vacancy Law requires a majority vote of the remaining members of the governing body at issue. N.J.S.A. 40A:16-7. Additionally, this court compelled all members of the Council to be present at the January 16, 2013 meeting. Therefore, Mr. Doyle could only be validly appointed to the Council upon receiving five (5) affirmative votes. Accordingly, in this specific scenario, Robert s Rules acknowledges that an abstention has the effect of a negative vote. CONCLUSION The court determines that this case is governed by the interplay of the Municipal Vacancy Law, Hoboken City Council s resolutions regarding internal governance, Robert s Rules, and the common law. The state of the law regarding the effect of abstentions is far from settled. 8

9 However, it is clear that in cases such as this, where a statute requires a specific number of affirmative votes, abstentions are to be counted in the negative. See Patterson, supra, 294 N.J. Super. at 18 (Law Div. 1994). The Council s vote of four (4) yeas, two (2) nays, and two (2) abstentions must be interpreted as a tie because abstentions have the effect of a negative vote. Mayor Zimmer correctly used her power to cast a tie breaking vote, in accordance with N.J.S.A. 40A:16-8. To conclude otherwise would permit a single member of a city council to exercise veto power over the filling of a vacancy which would thwart the process established by the Municipal Vacancy Law. This court cannot countenance the notion that the Municipal Vacancy Law was intended to encourage gamesmanship. Council members should not be permitted to undermine the deliberative process and trump the intent of the legislature. 9