Once again the Municipal Vacancy Law, N.J.S.A. 40A:16-1 et seq., has spawned a novel issue for this court to decide. May a political party which is given the right under the vacancy law to submit the names of three nominees to fill the vacated position of an incumbent party member, submit only one name because of the alleged unavailability of willing candidates and then make the appointment based on the governing body's failure to act on the name submitted?
On August 28, 1990, Isabella M. McMasters, an elected Democratic councilwoman, resigned from her position. Thereafter, on or about September 11, 1990, Mrs. McMasters and her husband, on behalf of the Ship Bottom Democratic Committee, submitted a letter to the Mayor and Council of the Borough of Ship Bottom recommending that plaintiff, Betty J. Brubaker, be appointed for the unexpired term of the vacancy. Betty Brubaker is a registered Democrat and a resident of Ship Bottom.
The mayor and council refused to act on the name submitted. On September 30, 1990, plaintiff Democratic Committee of Ship Bottom appointed Betty J. Brubaker to fill the vacated Democratic position and demanded that defendants administer the oath of office. Defendants refused to do so on the ground that the Democratic Committee had failed to submit three nominees for consideration by the governing body as required by N.J.S.A. 40A:16-11. This action ensued.
Plaintiffs contend that a diligent good-faith search was made to locate three registered Democrats residing in Ship Bottom who would be willing to serve for the remainder of the unexpired council term but that plaintiff, Brubaker, was the only individual willing to fill the seat. Plaintiffs assert that the court should not allow a legal technicality to block the minority party from filling the vacancy and thus deny the residents of
Ship Bottom full representation in local government. Defendants counter that N.J.S.A. 40A:16-11 and the legislative history interpreting it mandate the submission of three names before the governing body is obligated to fill a vacancy. Defendants argue that allowing plaintiffs to appoint their sole nominee contravenes the legislative policy of limiting the circumstances in which a non-elected person is appointed to an elected position.
A review of the legislative history of the Municipal Vacancy Law is appropriate. Before enactment of Chapter 213 of the Laws of 1975, the procedure for filling a vacancy was addressed separately in various statutes pertaining to different forms of municipal government. Chapter 213 consolidated these laws in a statute known as the Municipal Governing Body Vacancy Law. N.J.S.A. 40:45B-1 et seq. The statute set forth detailed guidelines for filling a vacancy. Those guidelines need not be reviewed here except to note that N.J.S.A. 40:45B-3 provided that if the previous incumbent was the nominee of a political party, any appointment to that position shall be from the same political party. If the governing body failed to act, the position remained vacant until an election was held. Chapter 11 of the Laws of 1978 made technical amendments to the Municipal Governing Body Vacancy Law, none of which bears upon the controversy before the court.
By passage of Chapter 83 of the Laws of 1979, the current Municipal Vacancy Law was established (N.J.S.A. 40A:16-1 et seq.) and the Municipal Governing Body Vacancy Law was repealed. The new law again sought to comprehensively regulate the process of filling municipal vacancies. As relevant here, it provided that to fill a vacant seat where the incumbent had been elected to an office as the nominee of a political party, the municipal committee of the incumbent's party shall submit to the governing body the names of "three" nominees for the selection of a successor to the office within 15 days of the vacancy. The governing body was required to appoint one of the three nominees to fill the vacant seat within 30 days of the
date of the vacancy. If the municipal committee of the incumbent's political party failed to submit the names of the nominees within 15 days, the statute provided that the governing body "shall" appoint a successor from the incumbent's political party within 30 days of the occurrence of the vacancy. N.J.S.A. 40A:16-11.
Chapter 101 of the Laws of 1980 again amended the Municipal Vacancy Law by inserting the word "may" in place of the word "shall" as it pertains to the governing body's obligation to appoint one of the three nominees suggested by the incumbent's political party. In so doing, the governing body's obligation to appoint one of the nominees became optional instead of mandatory. Cf. Galloway Tp. Republican League v. White, 171 N.J. Super. 576, 410 A.2d 276 (App.Div.1980), certif. den. 82 N.J. 301, 412 A.2d 807 (1980).
Most recently, N.J.S.A. 40A:16-11 was again amended by Chapter 57 of the Laws of 1990. This amendment reinstates the word "shall" (as contained in the 1979 law) in place of the word "may" (as contained in the 1980 law) as it relates to the obligation of the governing body to appoint one of the three names submitted. It also provides that if the governing body fails to make the selection within the specified time period, the ...