NOT FOR PUBLICATION WITHOUT THE

WRITTEN APPROVAL OF THE COMMITTEE ON OPINIONS

SUPERIOR COURT OF NEW JERSEY

LAW DIVISION : HUDSON COUNTY

DOCKET NO. HUD-L-5410-12

MAYOR DAWN ZIMMER, COUNCIL

PRESIDENT PETER CUNNINGHAM,

COUNCILMAN RAVINDER BHALLA,

COUNCILWOMAN JENNIFER GIATTINO

and COUNCILMAN DAVID MELLO,

Plaintiffs,

v. OPINION

COUNCILWOMAN THERESA CASTELLANO,

COUNCILWOMAN ELIZABETH MASON,

COUNCILMAN TIMOTHY OCCHIPINTI

and COUNCILMAN MICHAEL RUSSO,

Defendants.

___________________________________________________________________

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).

BARISO, A.J.S.C.

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

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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, 2012.

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,

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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-5012-12), 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.

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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, 2012.

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.

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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:16-13. 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

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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

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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-5012-12, reasons placed on the record November

16, 2012.

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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 (11th

ed.), p. 45, ll. 16-19; p. 403, ll. 13-18. 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.

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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.