Booker v. Rice, L-8586-12, L-8536-12; Law Division, Essex County; opinion by Carey, P.J.Cv.; decided December 11, 2012; approved for publication July 5, 2013. DDS No. 21-3-0534 [23 pp.]

Newark is governed by a mayor-council form of government pursuant to the Faulkner Act, N.J.S.A. 40:69A-1 to -210. The city's charter requires that the municipal council have nine members. In November 2012, Councilman Donald Payne Jr. resigned. The council convened with seven of the eight remaining members — Councilman Rice did not attend — and Shanique Davis Speight was nominated to fill the vacancy. Under N.J.S.A. 40A:16-7, Speight could only be appointed on receiving a majority vote of the remaining members, i.e., five votes. She received four "yes" votes and three "no" votes. Rice's abstention was deemed to be a "no" vote, resulting in a 4-4 tie, although the council rules specify that an abstention is neither a "yes" or "no" vote. The mayor then exercised his statutory power under 40A:16-8 to break the tie and voted in favor of Speight, thereby providing the fifth vote required.

Pursuant to an interim court order, the council agreed to hold a special meeting with all members in attendance for a "re-vote." The result was four votes in favor, two against and two abstentions. The mayor again cast the fifth vote for Speight.

The "yes" voters (the mayor plaintiffs) seek a declaratory judgment that the abstentions were rightfully decreed to be "no" votes, which created a tie vote that allowed the mayor to vote. The "no" voters (the Baraka plaintiffs) filed their own application to invalidate the actions by the council and mayor.

Held: Reading N.J.S.A. 40A:9-132, 40A:16-18, 40:69A-180, and Council Rule XVI in pari materia, the court concludes that the council rules are clear that an abstention is neither a "yes" or "no" vote and do not conflict with any of the governing statutes. Moreover, the mayor may only vote to fill a council vacancy in the event of a tie and there was no tie here. The actions of the mayor plaintiffs violated the council rules and the Municipal Vacancy Law. Therefore, the council's declaration of a "tie" is voided, the mayor's vote is nullified, and Speight's appointment is invalid.

The mayor plaintiffs rely on 40A:9-132 to demonstrate the mayor's statutory authority to vote in the event of a tie among council members and on a number of common-law cases regarding the treatment of abstentions that are grounded in the policy of preventing the manipulation of government business by voting members of the governing body. The Baraka plaintiffs rely on the council's authority to create its own procedural rules under 40:6A-180, specifically Rule XVI on the treatment of abstentions, and on 40A:168 regarding limitations on the mayor's power to vote only in the event of a tie.

The court says under the Municipal Vacancy Law, 40A:16-1 to -23, when a vacancy occurs in the council, the council may, but is not required to, make an appointment within 30 days. Otherwise, the seat is left vacant until the next election. Under 40A:9-132, the mayor shall vote if the council should fail to take any action by reason of a tie or insufficient vote "unless otherwise provided by law." However, under 40A:16-8, the mayor has the express authority to vote to fill a council vacancy only in the event of a tie vote. N.J.S.A. 40:69A-180(a) specifies parameters for the council's adoption of procedural rules.

This court ultimately reads these laws and Council Rule XVI in pari materia to reach its decision. However, it begins with a review of the common-law variations on the issue of abstention, ultimately concluding that the common law conveys, at best, that the law on the issue of the legal effect of abstention is divided and that it must look to the council rules.

The court says the council rules are clear on the legal effect of abstention without the need to inquire into the motives or reasons for abstaining, despite language used to such effect in the various cases at common law. When read in pari materia with 40:69A-180, 40A:9-132, and 40A:16-8, the rules control in the absence of a conflict with statute or ordinance. The "unless otherwise provided by law" language in 40A:9-132 persuades the court that 40A:16-8 "provides otherwise" the scenario in which the Legislature intended the mayor to vote on an appointment — only in the instance of a tie. N.J.S.A. 40A:9-132 is a more general statute addressing the general voting powers of a mayor when either filling a vacancy, adopting an ordinance, or any other instance when the governing body fails to take action. N.J.S.A. 40A:16-8 specifically addresses the mayor's power to vote in filling a council vacancy. The court says the interplay between 40A:9-132 and 40A:16-8 refutes the mayor plaintiffs' alternative argument that the mayor properly voted in the scenario of an "insufficient vote" as Speight only received four of the required five votes. Moreover, the Baraka plaintiffs persuasively argued that the language "insufficient vote" under 40A:9-132 refers to when a mayor can intervene to satisfy the required quorum, as opposed to intervening to provide a sufficient majority vote in the absence of a tie. Reading all four of these laws together, the court concludes that 40:69A-180 empowers the council to adopt its own procedural rules as long as they are not inconsistent with statute or ordinance, that the council specifically adopted a rule on the legal effect of abstention, and the mayor can only vote in the event of a tie. Rule XVI does not conflict with the Faulkner Act or Municipal Vacancy Law because they do not address the legal effect of abstention or whether the court can consider the motives or reasons for abstentions. Only the common law appears to address the issue of motive and abstaining to frustrate the voting process, but such authority is trumped by the council rules.

For plaintiffs — Wayne Positan and Scott Reiser (Lum, Drasco & Positan). For defendants — Robert Pickett and Lauren Craig (Pickett & Craig).