Court: abstentions not ‘no’ votes; Newark, Hoboken mayors can’t break such ‘ties’

TRENTON – The Superior Court Appellate Division has ruled in two cases that abstentions are not the same as “no’’ votes, and therefore the mayors are not allowed to break a tie because no tie existed.

The cases involved vacancies on councils in Newark and Hoboken and in each case, Superior Court ruled Friday that mayors Cory Booker and Dawn Zimmer could not vote to break a tie.

in the case of a Newark Council vacancy, the court said that “Because an abstention in this context could not be counted as a  “no” vote, we conclude, as did the trial judge, that there was  no tie, the mayor was not authorized to vote and, consequently, the Council failed to fill the vacancy, leaving the matter to Newark’s voters at the next election.”

In the Hoboken case, the appellate court ruled that the trial judge must be reversed because the judge incorrectly ruled.

The Newark case featured Booker and others against Council member Ronald Rice and others over how Shanique Davis Speight was approved for a vacancy.  There were four yes votes, two no votes and two abstentions.

The court today ruled that the abstentions are not equal to no votes.

The vacancy occurred when Donald Payne Jr. resigned after becoming a member of Congress.

Rice left the meeting and there was  a 4-3 vote for Speight, the court said. Council interpreted Rice’s departure as a no vote, creating a deadlock.

Booker then voted for Speight.

At a later, court-ordered second vote, there occurred the vote of 4-2-2, with Rice and Darrin Sharif abstaining.

The court did recognize some problems in this area of how to treat abstentions. “This brief analysis of our common law demonstrates there is very little clarity or consistency in the judicial treatment of abstentions by members of municipal governing bodies,” the court stated.

The Hoboken case involved the resignation of Council member Carol Marsh on Sept. 19.

On a vote to have James Doyle replace her the vote was 4-2-1 with one member absent from the meeting.

Again, the abstention and the absence were interpreted as no votes and Zimmer broke the tie in Doyle’s favor.

On  a subsequent second vote, the tally again was 4-2-1 with an absence.  In this case, the absent member in the first vote abstained, and the abstaining member in the first vote was absent for the second vote, the court explained.

At yet a third vote, earlier this year, the vote was 4-2-2, which a judge upheld, ruling there was a tie. Today the appeals court ruled the abstentions are not no votes.

Because of the lack of consistency and clarity in these matters, the court raised the possibility in its decisions today that the Legislature at some point may have to step in and make a law or regulations.