CORY BOOKER, in his official capacity as Mayor of the City of Newark; ROBERT MARASCO, in his official capacity as City Clerk of the City of Newark; ANIBAL RAMOS, JR., in his official capacity as a member of the Municipal Council of the City of Newark; AUGUSTO AMADOR, in his official capacity of the Municipal Council of the City of Newark; CARLOS M. GONZALEZ, in his official capacity as a member of the Municipal Council of the City of Newark; LUIS A. QUINTANA, in his official capacity as a member of the Municipal Council of the City of Newark; and SHANIQUE DAVIS SPEIGHT, in her capacity as a member of the Municipal Council of the City of Newark, Plaintiffs-Appellants,
RONALD C. RICE, in his official capacity as a member of the Municipal Council of the City of Newark; RAS J. BARAKA, in his official capacity as a member of the Municipal Council of the City of Newark; MILDRED C. CRUMP, in her official capacity as a member of the Municipal Council of the City of Newark; and DARRIN S. SHARIF, in his official capacity as a member of the Municipal Council of the City of Newark, Defendants-Respondents.
Argued May 21, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8586-12, whose opinion is published at __N.J. Super__. (Law Div. 2012).
Vito A. Gagliardi, Jr., argued the cause for appellants (Porzio, Bromberg & Newman, P.C., attorneys; Mr. Gagliardi, of counsel; Mr. Gagliardi, Frank A. Custode and Okechi C. Ogbuokiri, on the brief).
Robert T. Pickett argued the cause for respondents (Pickett & Craig, attorneys; Mr. Pickett, of counsel; Mr. Pickett and Lauren M. Craig, on the brief).
Before Judges Fisher, Alvarez and St. John.
In this appeal, we consider whether a vacancy on the Newark Municipal Council was validly filled in a manner consistent with the Municipal Vacancy Law, N.J.S.A. 40A:16-1 to -23, when, of the eight remaining councilmembers, four voted "yes, " two voted "no, " and two abstained. The affirmative voters took the position that this created a four-four deadlock, which, in their view, authorized the mayor to vote, pursuant to N.J.S.A. 40A:16-8; the mayor voted in favor of plaintiff Shanique Davis Speight. Because an abstention in this context could not be counted as a "no" vote, we conclude, as did the trial judge, that there was no tie, the mayor was not authorized to vote and, consequently, the Council failed to fill the vacancy, leaving the matter to Newark's voters at the next election.
The facts are relatively simple and undisputed. On November 15, 2012, Newark Municipal Councilmember Donald M. Payne, Jr. resigned from the Council due to his election to the United States Congress. Pursuant to the Faulkner Act, N.J.S.A. 40:69A-1 to -210, Newark maintains a mayor-council form of government, with nine council members and a mayor. On November 20, 2012, with the eight remaining members present, the Council attempted to appoint Congressman Payne's successor. N.J.S.A. 40A:16-7 requires that a majority of remaining council members — that is, at least five members – approve of a replacement to fill the vacancy.
Councilmember Ronald Rice left the meeting, and Ms. Speight received four "yes" votes and 3 "no" votes. The Council regarded Councilman Rice's departure as a "no" vote, which they believed created a four-four tie. Based on this perceived tie – and only because of this perceived tie, see N.J.S.A. 40A:16-8 (declaring that a mayor may vote "to fill a vacancy in the membership of a governing body only in the case of a tie vote") – Mayor Cory Booker voted in favor of Ms. Speight.
Mayor Booker, City Clerk Robert Marasco, Ms. Speight and Councilmembers Ramos, Amador, Gonzalez and Quintana (hereafter "plaintiffs") filed a verified complaint and obtained an order requiring Councilmembers Rice, Baraka, Crump and Sharif (hereafter "defendants") to show cause why the court should not enter a declaratory judgment confirming Ms. Speight's appointment to the Council or, in the alternative, why a mandatory injunction should not be issued compelling defendants to attend and vote at a special council meeting. In response, defendants sought temporary restraints and moved to invalidate the appointment. With the parties' consent and without waiver of their legal contentions, Judge Dennis F. Carey, III, entered an interim order compelling defendants to appear at a special meeting to vote again.
The special council meeting was held on December 5, 2012; all eight remaining councilmembers attended. Ms. Speight received the same four "yes" votes. Councilmembers Baraka and Crump again voted "no, " and Councilmen Rice and Sharif abstained. Mayor Booker voted to break this ostensible tie in favor of placing Ms. Speight on the Council.
Judge Carey heard further argument on December 11, 2012, and, on December 17, 2012, rendered a thorough written decision. Judge Carey found that the Newark Council's rules of practice recognized that an abstention is neither a "yes" nor a "no" vote and that Newark's internal rules were not inconsistent with statutory or common law principles. Consequently, Judge Carey concluded there was no tie that would allow the mayor to cast a vote and that Ms. Speight did not receive the five votes required by law to fill the vacancy. We agree and affirm.
The Municipal Vacancy Law permits a governing body's "remaining members, " N.J.S.A. 40A:16-7, to fill a vacancy within thirty days of the occurrence of a vacancy, N.J.S.A. 40A:16-12. The remaining members are not required to act; if they are unable to agree or if they choose not to fill the vacancy, the seat remains vacant until filled by the voters. N.J.S.A. 40A:16-13.
To fill a vacancy, at least five members were required to vote in favor of a nominee. Ms. Speight received only four affirmative votes. The only way that Ms. Speight could be validly seated to fill the vacancy left by Congressman Payne was through the recognition of a deadlock and, with such a tie, the affirmative vote of Mayor Booker. See N.J.S.A. 40A:16-8 (declaring that "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"). And the only conceivable way the Council vote ...