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Zimmer v. Castellano

Superior Court of New Jersey, Appellate Division

July 5, 2013

MAYOR DAWN ZIMMER, COUNCIL PRESIDENT PETER CUNNINGHAM, COUNCILMAN RAVINDER BHALLA, COUNCILWOMAN JENNIFER GIATTINO, and COUNCILMAN DAVID MELLO, Plaintiffs-Respondents,
v.
COUNCILWOMAN THERESA CASTELLANO, COUNCILWOMAN ELIZABETH MASON, COUNCILMAN TIMOTHY OCCHIPINTI, and COUNCILMAN MICHAEL RUSSO, Defendants-Appellants.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 21, 2013.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5410-12.

Jerry H. Goldfeder (Strook & Strook & Lavan, LLP), of the New York bar, admitted pro hac vice, argued the cause for appellants (Gregg F. Paster & Associates, and Mr. Goldfeder, attorneys; Steven W. Kleinman, of counsel; Mr. Kleinman and Mr. Goldfeder, on the brief).

William W. Northgrave argued the cause for respondents (McManimon, Scotland & Baumann, LLC, attorneys; Mr. Northgrave and Ted Del Guercio, III, on the brief).

Before Judges Fisher, Alvarez and St. John.

OPINION

FISHER, P.J.A.D.

In this appeal, we consider whether the remaining members of the Hoboken Council validly replaced a resigned member. As we held in another appeal, also decided today, regarding action taken by the Newark Council to fill a vacancy, Booker v. Rice, ___ N.J.Super. ___ (App. Div. 2013), in this context abstentions may not be counted as "no" votes. We reach that conclusion based on an interpretation of Robert's Rules of Order because, unlike the Newark Council, which has a specific rule of procedure that governed the question, Booker, supra, ___ N.J.Super. at ___ (slip op. at 6-7), Hoboken's rules of procedure require resort to that treatise. Because the trial judge misinterpreted the abstentions that occurred here, and for other reasons as well, we reverse the order under review.

Pursuant to the Faulkner Act, N.J.S.A. 40:69A-1 to -210, Hoboken maintains a mayor-council form of government, with nine council members and a mayor. On September 19, 2012, Hoboken Councilmember Carol Marsh tendered her resignation. On October 3, 2012, the effective date of the resignation, the Council held its regularly scheduled meeting with seven of the eight remaining members in attendance. James Doyle was nominated to fill the vacancy. Four councilmembers voted "yes" to seating Mr. Doyle, [1] two voted "no, "[2] and one abstained[3]; the eighth remaining member was absent.[4] Those who voted in favor of Mr. Doyle took the position that the abstention of one councilmember and the absence of another should be considered "no" votes, thus producing – in their view – a four-four tie that permitted Mayor Dawn Zimmer to utilize her statutory power, N.J.S.A. 40A:16-8, to break the deadlock. Mayor Zimmer voted for Mr. Doyle.

For reasons not entirely clear – nor presently relevant – the Council again voted regarding the vacant seat at the next Council meeting on October 17, 2012. The voting was similar, except that the member absent from the October 3 meeting was present and abstained, and the member who abstained at the October 3 meeting was absent. Again, those who voted in favor of Mr. Doyle took the position that this created a four-four tie, and Mayor Zimmer again voted in favor of Mr. Doyle.

On October 22, 2012, the councilmembers who either voted "no, " abstained, or were absent (hereafter "the Castellano group"), filed a verified complaint in the Law Division contesting the validity of Mr. Doyle's appointment and demanding judgment declaring that the seat remain vacant. The following week, Superstorm Sandy intervened and delayed the trial judge's consideration of the matter. On November 16, 2012, the judge conducted a hearing and, at its conclusion, held that neither the October 3 nor the October 17 votes resulted in a tie and, consequently, Mayor Zimmer was not authorized to cast a vote on those occasions. The November 27, 2012 memorializing order was not appealed.

Instead, on November 20, 2012, prior to the judge's entry of a final order in the first action, Mayor Zimmer and those councilmembers who had voted in favor of Mr. Doyle (hereafter "the Zimmer group") commenced this action and obtained an order that required the Castellano group to show cause: (1) why all remaining councilmembers should not appear at a regular or special meeting to consider filling the vacancy; (2) why the thirty-day limit on the filling of vacancies contained in N.J.S.A. 40A:16-12 should not be tolled; and (3) why an abstention should not be counted as a negative vote.

After hearing argument on December 14, 2012, the judge decided to toll the thirty-day statutory deadline and directed all remaining councilmembers to appear at a meeting scheduled to occur on December 19, 2012, for the purpose of re-voting on Mr. Doyle's candidacy. We denied the Castellano group's motion for leave to appeal.

The Council met on January 16, 2013, 105 days after the vacancy was created. All eight remaining members appeared; the same four voted in Mr. Doyle's favor, Councilmembers Castellano and Occhipinti voted against, and Councilmembers Mason and Russo abstained. Again, the four "yes" voters viewed this as creating a four-four tie, and Mayor Zimmer voted in favor of Mr. Doyle. The trial judge determined, by written opinion dated February 1, 2013, that the ...


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