[140 NJSuper Page 329] This matter was commenced on January 21, 1976 by the filing of an order to show cause and complaint in lieu of prerogative writs by plaintiff
Mayor William Brooks of Rutherford. The action is in the nature of seeking mandamus and asks for a declaratory judgment concerning the interpretation and applicability of the Municipal Governing Body Vacancy Law, L. 1975 c. 213; N.J.S.A. 40:45B-1 et seq. Plaintiff also seeks to enjoin the borough council from exercising certain of its powers of appointment under N.J.S.A. 40:87-16 when such power matures at some point in time after February 1, 1976.
The court has read the briefs, affidavits and other pleadings. It has also considered extensive oral argument. Thankfully, the instant case is quite straightforward and there are no material facts in dispute. The issues resolve themselves almost entirely into questions of law. Based upon all of the available legal input presented to the court I make the following findings of fact.
Plaintiff William Brooks was elected councilperson as a nominee of the Democratic party on November 6, 1973 for a three-year term ending December 31, 1976. On January 1, 1976 Brooks resigned his council seat and assumed the duties of the office of mayor, an office to which he was elected in November 1975.
The present members of the Rutherford council are Alan Note, Margaret Schak, Patrick Conway, Barbara Chadwick and Willard Reenstra. Councilpersons Note, Schak and Conway are nominally Democrats. Councilpersons Chadwick and Reenstra are nominally Republicans. Mayor Brooks is a Democrat.
The Rutherford governing body met on January 1, 1976 to reorganize itself pursuant to N.J.S.A. 40:88-1 and to attempt to fill the council vacancy created by Brooks' resignation. Three Democrats were nominated to fill the council vacancy at that time: James Ely, James Harrison and Joseph Soga. Mayor Brooks and councilpersons Note and Schak voted in favor of each nominee. Councilpersons Conway, Reenstra and Chadwick voted against the nominees. The council vacancy was therefore not filled by a vote of
the majority of the whole governing body. N.J.S.A. 40:45B-2(a).
At this reorganization meeting attempts were made to appoint various persons to the offices of borough attorney, auditor and prosecutor. Each nominee was defeated by a vote of three to two, with Conway, Reenstra and Chadwick constituting the majority.
At a meeting of the governing body on January 6, 1976 Mayor Brooks attempted to solicit from the members of the Council names of nominees to fill the council vacancy. No names were offered and the second attempt to fill the council seat proved fruitless.
At a meeting of the governing body on January 20, 1976 the names of James Harrison, James Ely, Joseph Soga and Phillip LaPorta were each consecutively placed in nomination to fill the council vacancy. The council vacancy went unfilled as each nomination was defeated by a vote of three to three, Conway, Reenstra and Chadwick voting not to appoint the nominees.
On numerous occasions, including the meetings of the governing body, the three councilpersons who voted against the nominees expressed their reasons for not filling the council vacancy. Although at one point a proffered reason was that these councilpersons believed that the filling of the council vacancy was discretionary and not mandatory, the essence of Conway's, Reenstra's and Chadwick's decision not to vote for the Democratic nominees was that they believed it would be better to allow the entire electorate of Rutherford to decide who should fill the council vacancy. The court finds that there is no evidence of any bad faith on the part of these councilpersons and that the reason espoused is rational and is a product of honest belief. This is not to say that the court ...