NJ Appellate Division Rules Abstentions May Not Be Counted as “No” Votes

New Jersey senate judiciary committeeIn Zimmer v. Castellano and Booker v. Rice, the Appellate Division of the New Jersey Superior was asked to determine the legal effect of abstention. The specific question before the panel was whether the a city council has the authority to deem a council member’s abstention to be a “no” vote in order to create a tie vote that allows the mayor to vote.

While the facts of each case differed slightly, the answer was the same — abstentions do not count as a “yes” or “no” vote.

The Facts of the Case

Newark and Hoboken are governed by a mayor-council form of government pursuant to the Faulkner Act. In both Booker v. Rice and Zimmer v. Castellano, the city council members attempted to fill a city council vacancy under New Jersey’s Municipal Vacancy Law. It states that when a vacancy occurs in the council, the council may, but is not required to, make an appointment within 30 days. Otherwise, the seat is left vacant until the next election.

With regard to the specific procedures, N.J.S.A. 40A:16-7 requires that the vacancy be filled by a majority of the remaining councilmembers, while 40A:16-8 specifies that the mayor has the express authority to vote to fill a council vacancy only in the event of a tie vote.

In addition to the state statutory requirements, the Newark Council Rules specifically require five confirmatory votes for appointment. In addition, they specify that an abstention during roll call shall be neither a “yes” or “no” vote. The Hoboken city council did not have a relevant rule regarding the meaning of abstention, requiring the court to apply Robert’s Rules of Order.

The Court’s Decision

In both cases, the Appellate Division concluded that an abstention is not a vote at all. As the court explained in Zimmer v. Castellano:

 As in the companion case, those who favor an interpretation of the abstentions as “no” votes are laboring under the misunderstanding that “yes” and “no” were the only principled choices available to the remaining councilmembers. Booker, supra, ___ N.J. Super. at ___ (slip op. at 13-14). Councilmembers, in fact, had at least three choices; they could legitimately favor Mr. Doyle, or oppose him, or oppose filling the vacancy with anyone. The means of expressing the last of these three choices was by abstaining. We, thus, find no merit in the argument that the abstentions were unprincipled or that the abstaining councilmembers were in dereliction of their duties. 

In Booker v. Rice, the court further considered Newark’s Council Rules regarding abstentions. It found that the Council Rules are clear on the effect of abstention and do not conflict with any of the governing statutes. More specifically, “Rule XVI does not conflict with the Faulkner Act or Municipal Vacancy Law because they do not address the legal effect of abstention or whether the court can consider the motives or reasons for abstentions,” the court concluded.

For more information about this case or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.


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