Booker v. Rice, A-2413-12T4; Appellate Division; opinion by Fisher, P.J.A.D.; decided and approved for publication July 5, 2013. Before Judges Fisher, Alvarez and St. John. On appeal from the Law Division, Essex County, L-8586-12. [Sat below: Judge Carey.] DDS No. 21-2-0533 [14 pp.]

Pursuant to the Faulkner Act, N.J.S.A. 40:69A-1 to -210, Newark maintains a mayor-council form of government, with nine council members and a mayor. In November 2012, Councilman Donald Payne Jr. resigned from the council. On Nov. 20, 2012, with the eight remaining members present, the council attempted to appoint his successor. N.J.S.A. 40A:16-7 requires that a majority of remaining council members, here five, approve of a replacement to fill the vacancy.

Councilman Rice left the meeting. Nominee Shanique Davis Speight received four "yes" votes and 3 "no" votes. The council regarded Rice's departure as a "no" vote, which they believed created a 4-4 tie, which, under 40A:16-8, authorized the mayor to vote. He voted "yes."

The "yes" voters filed a verified complaint and obtained an order requiring Rice and the "no" voters to show cause why the court should not confirm Speight's appointment or, in the alternative, why they should not be compelled to attend and vote at a special council meeting. The judge entered an interim order compelling defendants to appear at a special meeting to vote again.

At that meeting, Speight received four "yes" votes, two "no" votes, and there were two abstentions. The mayor voted in favor of Speight.

Judge Carey then found that the council's rules of practice recognized that an abstention is neither a "yes" nor a "no" vote and that the rules were not inconsistent with statutory or common-law principles. He concluded there was no tie that would allow the mayor to vote and that Speight did not receive the necessary five votes.

Held: The vacancy was not filled in accordance with the Municipal Vacancy Law. The plain language of the council's rules of procedure provide that an abstention shall not be counted as a "yes" or "no" vote. Therefore, there was no tie, the mayor was not authorized to vote, and the nominee did not obtain the necessary votes.

The Municipal Vacancy Law, 40A:16-1 to -23, permits a governing body's "remaining members" to fill a vacancy within 30 days of its occurrence. They are not required to act and the seat may remain vacant until filled by the voters.

To fill a vacancy, at least five members were required to vote in favor of a nominee. Speight received four "yes" votes. The panel says the only way she could be seated was through a tie and the affirmative vote of the mayor. The only conceivable way the council vote could be viewed as constituting a tie is if the abstentions may be viewed as "no" votes.

N.J.S.A. 40:69A-180(a) authorizes a governing body to determine its own rules of procedure, not inconsistent with ordinance or statute. Rule XVI of the Newark Council's rules declares that a council member may abstain on any matter and "such abstention shall not be counted as a yes or no vote." Application of this clear and unambiguous language precludes a finding that the council was tied with four "yes" votes, two "no" votes, and two abstentions.

The panel rejects plaintiffs' claim that Rule XVI is arbitrary, capricious and unreasonable.

Plaintiffs have not referred to an ordinance or statute that would foreclose a council from adopting a rule that views an abstention as neither a "yes" or a "no" vote. They refer to the jurisprudence regarding the meaning of an abstention in various settings. However, because no clear or definitive rule suggesting the treatment of an abstention can be ascertained from the nuanced and confusing cases, the panel rejects the argument that Rule XVI is "inconsistent" with recognized law and says it does not violate 40:69A-180(a).

Rather, it says Rule XVI is dispositive and compels a finding that the abstentions were not "yes" or "no" votes and, therefore, did not create a tie to be broken by the mayor.

Regarding plaintiffs' accusation that the abstentions were "manipulative" or designed to carry out a political agenda, the panel says plaintiffs miss that there were not only two choices before the council — for or against Speight — but that council members were legitimately entitled to choose not to fill the vacancy and leave the question to be decided at the next election as provided by statute. On this record, the panel says it must assume that this was the principled basis for the abstentions, and to the extent that case law would suggest that an abstention in this setting constitutes a breach of solemn duty, it disagrees.

For appellants — Vito A. Gagliardi Jr. (Porzio, Bromberg & Newman; Gagliardi, Frank A. Custode and Okechi C. Ogbuokiri on the brief). For respondents — Robert T. Pickett (Pickett & Craig; Pickett and Lauren M. Craig on the brief).