Appellate Division Throws Out Mayoral “Tie” Votes in Council Vacancies

Under New Jersey’s Faulkner Act, mayors have a lot of power, but they don’t have the power to appoint their council.  The Appellate Division of the New Jersey Superior Court recently slapped down the Mayor of Hoboken for attempting to cast a “tie” vote to fill a vacancy on the City Council.

The case is one of two recent New Jersey lawsuits challenging how city council vacancies are filled. In both cases, the Appellate Division held that the abstentions did not constitute “no” votes. The characterization of abstention votes is important because four councilmembers voted “yes” to seating James Doyle to fill the vacancy, two voted “no,” and two abstained. Doyle’s supporters and Mayor Zimmer contended that a four-four tie authorized the Mayor to cast the deciding vote.  The court did not agree.

Under New Jersey’s Municipal Vacancy Law, the council may, but is not required to, fill a vacancy by making an appointment within 30 days. If the council fails to act, the seat is left vacant until the next election. The law further requires that the vacancy be filled by a majority of the remaining councilmembers, and specifies the mayor has the express authority to vote to fill a council vacancy only in the event of a tie vote.

In the litigation that ensued, the trial court judge tolled the statutory deadline and ordered all remaining council members to appear at a meeting to revote on Doyle’s candidacy. After the result was the same, the judge ruled that the abstentions should be treated as negative votes, thereby allowing the mayor to break the tie.

On appeal, the Appellate Division reversed on several grounds. In addition to failing to meet the 30-day deadline, the panel held that the trial judge was not authorized to order the Council to hold a new vote. 

As explained in the opinion, “[C]ontrary to the approach taken in the trial court and urged by the Zimmer group, the Council was not required to fill the vacancy. The Legislature only provides a governing body’s remaining members with the discretion to fill a vacancy. N.J.S.A. 40A:16-12. Accordingly, the judge was not empowered to compel a vote on the subject because the council was not required by law to act.”

The Appellate Division also determined that the trial judge incorrectly determined that abstention votes should be counted as negative votes resulting in a tie.

 “Those who favor an interpretation of the abstentions as ‘no’ votes are laboring under the misunderstanding that “yes” and “no” were the only principled choices available to the remaining councilmembers,” the Court explained. “Councilmembers, in fact, had at least three choices; they could legitimately favor Mr. Doyle, or oppose him, or oppose filling the vacancy with anyone. The means of expressing the last of these three choices was by abstaining.”

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck. He is also the editor of the Constitutional Law Reporter and Government and Law blogs.

Appellate Division Throws Out Mayoral “Tie” Votes in Council Vacancies