Judges rule towns can wait up to 16 months to fill vacancies, in blow to political parties

Decision opens door to partisan gamesmanship

By: - August 17, 2021 3:32 pm

Paul Coates was briefly a Linden City Council member starting in May 2019. (Courtesy of the city of Linden)

An appellate panel handed local political parties a stunning loss Tuesday after ruling municipal governing bodies in towns with partisan elections can keep vacant seats open for roughly 16 months.

The three judges’ ruling is a reversal from a lower court decision that ordered Paul Coates, the Linden Democratic municipal committee’s pick for the vacant 8th Ward seat, be seated immediately after a roughly four-month-long standoff between the party and local elected officials, all of whom are Democrats.

“This decision is vindication for the residents of the 8th Ward, and the City Council who, based upon the advice of our city attorney, Daniel Antonelli, were right when they determined to maintain a vacancy until the primary election,” Mayor Derek Armstead said.

At the center of the case were conflicting provisions of the Municipal Vacancy Law, which — as its name suggests — governs how municipalities fill empty seats on their governing boards.

The city and its council pointed to a provision of law that says governing bodies “may fill” such vacancies by appointment until an election could be held, while Coates and the Democratic committee cited a different section that says governing bodies “shall” fill vacancies using one of the local party’s three picks within 30 days.

The case was ultimately decided by a 1990 amendment to the portion of the law cited by the plaintiffs that left unchanged language explicitly allowing empty seats to remain vacant if local legislators declined to fill them, as Linden’s City Council did.

It’s not clear whether Coates will petition the New Jersey Supreme Court for an appeal — his attorney did not immediately return a request for comment — but the ruling could have wide-ranging implications for representation at the local level.

“A ruling that provides for legislative counsel discretion on filling of vacancy can be exploited when one party is the majority on the council and the other party has a vacancy,” said Ben Dworkin, director of Rowan University’s Institute for Public Policy & Citizenship. “The majority can exacerbate its power by simply taking its time and not filling the other side.”

To do so, local elected officials may have to pass a resolution to maintain the vacancy, as Linden’s council did.

The ruling affects both Republican and Democratic organizations, who can now have their local representation overruled by elected officials.

Previous amendments sought to head off such scenarios, and it’s possible state lawmakers will attempt the same this year.

“I am not a lawyer, but if this is not going to the New Jersey Supreme Court, I imagine this is a legislative fix that party leaders are going to look for when the state Legislature starts meeting again,” Dworkin said.

But that’s unlikely to happen for months, as neither chamber plans to return for a voting session until after the general election.

Linden aside, the process to fill local vacancies has largely been an uncontroversial one. Such vacancies are not uncommon throughout the roughly 480 New Jersey municipalities that hold partisan elections.

Local elected officials are typically — though not universally — on good terms with their local party organization, and appointments to fill vacancies are generally uncontroversial. That wasn’t the case in Linden.

Armstead and State Sen. Nicholas Scutari (D-Union), a Linden resident who chairs the Union County Democratic Committee, have feuded for years.

When Councilwoman Michele Yamakaitis’s ascension to Linden’s council presidency created the 8th Ward vacancy, Scutari helmed the Linden Democratic Municipal Committee and was in a position to influence the three names the body submitted to Linden’s council as potential appointments.

But Scutari lost control of the local party less than a month after a judge ordered Coates be seated, and Coates was then defeated in the primary by Garnett Blaine, an Armstead ally who still holds the 8th Ward seat, about two weeks after finally filling the council vacancy.

The two sides are still feuding. Scutari, Linden’s former municipal prosecutor, has filed a defamation suit against Armstead, council members and the city over an audit that claimed the senator was serially absent from the local post. Scutari has charged the audit’s findings, which have drawn progressives to call for his resignation, were politically motivated.

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Nikita Biryukov
Nikita Biryukov

Nikita Biryukov most recently covered state government and politics for the New Jersey Globe. His tenure there included revelatory stories on marijuana legalization, voting reform and Rep. Jeff Van Drew's decamp to the Republican Party. Earlier, he worked as a freelancer for The Home News Tribune and The Press of Atlantic City.