Booker v. Rice, 431 N.J. Super. 548 (App. Div. 2013), and Zimmer v. Castellano, 432 N.J. Super. 412 (App. Div. 2013). In each of these cases (Booker involving the City of Newark and Zimmer involving the City of Hoboken [Disclosure: My firm, Lite DePalma Greenberg, LLC, represents each of those municipalities, though not in these cases]), the issue was the effect of abstentions on a vote of a City Council to fill a vacancy on that Council. In both cases, the vote of the Council was such that if the abstentions were counted as “no” votes, a tie would have resulted, allowing the mayors (plaintiffs Booker and Zimmer, respectively) to break that tie and tip the majority in favor of their proposed replacement candidates. If the abstentions counted as neither “yes” nor “no” votes, there were only four votes in favor of the replacement candidates, when five affirmative votes were required by the Municipal Vacancy Law, N.J.S.A. 40A:16-1 to -23. That was because, under N.J.S.A. 40A:16-8, the mayors could vote only in the event of a tie. As a result, the replacement candidates would not have received enough affirmative votes, and the Council seats would thus remain vacant until the next election.
Writing for the Appellate Division in both cases, Judge Fisher concluded that the abstentions did not count as either “yes” or “no” votes. In Booker, Judge Fisher canvassed the common law regarding the effect of abstentions and concluded that “no clear or definitive rule suggesting the treatment of an extension can be ascertained from the cases.” As a result, he rejected the arguments of the mayors in both cases that the common law compelled a ruling that abstentions in this context are “no” votes.
Instead, the rules of procedure adopted by each Council were to govern. Newark had adopted a rule that provided that “[a] Council Member may abstain from voting on any matter, such abstention shall not be counted as a yes or no vote but shall be recorded in the minutes.” Hoboken’s rules allowed for abstentions, but stated that such a vote “has the effect of an abstention,” which did not itself resolve the issue of what “the effect of an abstention” is. As a result, Judge Fisher turned to Robert’s Rules of Order, which Hoboken’s rules made applicable to the extent that Robert’s Rules did not conflict with Hoboken’s adopted rules. Citing cases from other jurisdictions that had addressed the effect of an abstention under Robert’s Rules, Judge Fisher held that, as was the case under Newark’s rules, an abstention “is not a vote at all.”
A key consideration underlying these decisions is that each “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″ (emphases by Judge Fisher). As a result, it was a valid choice for the votes of the respective Councils to result in not filling the vacant seats, but instead to allow the voters to do so at the next election. The panel found no basis to compel either Council to exercise that discretion in favor of filling the seats, or to find that the Councils were somehow “in dereliction of their duties” by failing to vote to fill the seats.