MILE SQUARE VIEW EXCLUSIVE
Appellate Court says council appointment fell outside 30 day rule even with Superstorm Sandy
and rules abstentions should not be counted as a "no" vote on council vacancy law
In a stunning reversal of the Hudson County Superior Court decision appointing Jim Doyle to the City Council, the NJ Appellate Court has reversed the decision handing a victory to the Old Guard Council members and the Beth Mason family which staged and underwrote the legal wrangle going back to last October.
(The appeal/stay to the NJ Appellate Court had prevented Jim Doyle's participation since early this year.)
The decision concluded the City Council vote failed to meet a mandatory 30 day deadline (even in the face of Superstorm Sandy) and abstention votes were sufficient to prevent a tie and vote by the mayor.
The Old Guard council members had formulated a dual strategy to prevent Mayor Dawn Zimmer from casting a fifth deciding vote as she had done back in 2009 when her fourth ward seat became open due to her election to mayor. (At that time, Beth Mason abstained and her vote was counted as a "no" vote leading to the mayor's deciding vote.)
The NJ Appellate Court ruled the Superior Court was erroneous in the interpretation of abstaining as a "no" vote in the City Council and that the council members who were absent previously for the vote: Beth Mason and Michael Russo could not be compelled to show up and vote along with their allies under the council vacancy law as ordered by Hudson County Superior Court Judge Peter Bariso.
The ruling stated the open seat vacated by the resignation of former Councilwoman Carol Marsh who departed due to tragic family circumstances, did not require a vote as the council vacancy seat law only says the council "may" fill the seat within 30 days.
Superstorm Sandy interfered with the timing but the court held that was not the sole matter under consideration in their decision.
Judge Bariso had said in his February decision "gamesmanship" should not overwrite the intention of the council vacancy law and an abstain vote in a council appointment should be counted as a "no" vote. He added no single member of the City Council should be able to undermine a deciding fifth vote by the mayor in the case of a four-four tie but the NJ Appellate Court has nullified the ability of a New Jersey mayor to make a deciding fifth vote allowing any council vote of abstain to prevent a deadlock and subsequent tie-breaking vote.
If the decision stands, the City Council will remain in its tortured 4-4 state until the November elections.
The court added in its decision that the original court filing came on the 30th day but was vacated in the trial decision. On that basis, it says the succeeding claims are moot making any appeal to the NJ Supreme Court inert. (MSV will confirm our reading.)
The mayor and her reform oriented council allies are unable to move any appointments forward to local boards including on the important Hoboken Zoning Board and Hoboken Housing Authority.
Update: MSV has confirmed the court decision came in a 3-0 vote making the likelihood of a successful appeal to the NJ Supreme Court low.
Talking Ed Note: The ruling is a companion to the Newark case which unlike Hoboken, did have a local ordinance on how to handle abstention votes in a council vacancy. In that decision, the court ruled the departure of Newark Councilman Ron Rice could not be viewed as a "no" vote permitting Mayor Cory Booker to vote as there was no tie.
The two rulings undermine the role of an executive in voting to backfill a council vacancy before an election is legally mandated. The likelihood of a tie-breaking vote by the executive (mayor) is eliminated by virtue of a single abstention of any voting member in a council appointment where four members disagree on each side.
It's notable the court focused on the council vacancy language saying in 30 days a council "may" backfill the position. The staged absences of council members Beth Mason and Michael Russo last October to set the City up the lawsuit and block the Jim Doyle appointment was not even needed based on the decision.
A single "abstain" vote is all that is required to nullify a tie preventing a NJ mayor's vote.
The complete 12 page decision:
Hoboken Patch has a story up on the legal decision too: http://hoboken.patch.com/groups/breaking-news/p/doyles-appointment-to-council-reversed-on-appeal-court-rules-mayor-could-not-break-tie