|Legal Opinion: |
Text of Document: October 30, 1992
Your question is, did a certain proposed measure before the city council pass, or was there a tie vote on the proposed measure which the mayor could break. The following facts are pertinent: The city has 6 council members and a mayor who votes only in cases of a tie. On the measure in question, 3 council members voted yes, 2 voted no, and 1 "passed" (actually abstained). In my opinion, the measure neither passed, nor was there a tie vote for the mayor to break. That appears to be the outcome of applying State v. Torrence, 310 S.W.2d 425 (1958) to the facts in your case.
In Torrence the Nashville City Charter provided for a council of 21 members, for a majority vote of the council of 11 affirmative votes, and for a two-thirds vote as 14 affirmative votes. Article XI, § 9 of the Tennessee Constitution requires the approval of private acts of the Legislature "by a two thirds vote of the local legislative body of the municipality or county..." The vote by the Nashville City Council on a private act that made provision for a city judge's pension received a vote of 8 yes, 2 no. Nine council members, though present, didn't vote. The Tennessee Supreme Court was asked to decide whether the private act passed.
The city judge, relying on Collins v. Janey, 147 Tenn. 477, 249 S.W. 801 (1923), argued that the act had passed because there was a quorum, and that two thirds of the council members who voted, voted in favor of the act. The Court didn't agree, because
The question though in the Collins case does not determine the question here because in the Collins case the court there dealing with the proposition where the Act was silent as to the number of members necessary to constitute a quorum and under such a situation held as above indicated. Under the Charter of the City of Nashville it is provided that before anything done shall pass that it must have a majority vote which is defined as eleven members affirmatively and for a two thirds vote it is defined as fourteen members affirmatively. Thus it is that the Collins case is not authority here. [Emphasis is mine].
We will look at Collins more closely later, but for our immediate purposes, the Tennessee Supreme Court in that case addressed the questions of what constituted a quorum and a majority vote (including how abstentions are counted) in the absence of charter provisons governing those questions. In Torrence, because there were charter provisons governing those questions, Collins didn't apply, said the Court.
The standard the Court used to determine that two-thirds meant two-thirds of the entire governing body is highly instructive here. First the court concluded that the members of the limited constitutional convention who drafted the provision of Article XI, § of the Tennessee Constitution at issue themselves understood the phrase "by a two-thirds vote of the local legislative body of the municipality or county" to mean a two-thirds vote of the entire membership of those bodies. Turning to the city judge's argument that the Court should look to the ordinary meaning of the language of that provision rather than to the interpretation put on it by the members of the Constitutional Convention, the Court agreed that was a great idea, then hung the city judge on a lamppost with his own standard:
We have set out above what the members of the Limited Constitutional Convention finally concluded. Be that as it may we think the 'man on the street' would have interpreted this language to mean, that is the language 'a two-thirds vote of the local legislative body of the municipality or county' to mean two-thirds of the total membership of the body, not two-thirds of those voting or anything of the kind but that the language meant just exactly what it says, 'two-thirds of the local legislative body,' that is, of the total body of all of them put together, not just the few that might vote.
But Torrence is most damaging to the proposition that the abstention in your cases counts as an affirmative vote so that the measure would have passed, or as a negative vote so that the resulting tie vote could have broken by the mayor when the Court drives the "man in the street" standard off the street and into the city council chambers:
What person who votes, unless he has certain technical knowledge, would ever arrive at the idea that two-thirds of the 'local legislative body' meant that if they were present and did not vote at all that they would be considered to have voted? We think the question answers itself because as we see it no one would hardly reach such a conclusion. [Emphasis is mine]
It seems clear to me from that statement that where there are charter provisons governing measure passage thresholds for municipal councils, the Tennessee courts will not give them strained interpretations that confuse more than enlighten, and that they won't hold the members of municipal councils to a higher knowledge of parliamentary procedure than "the man on the street."
The City Charter contains provisons governing the number of votes required to pass measures. Section 13 of the charter provides "That a majority of the six (6) Councilmen of the City Council shall constitute a quorum..." Section 14 provides
That at all meetings of the City Council each of the six (6) Councilmen shall be entitled to a vote on all matters...and a majority vote of those present shall be necessary for affirmative or negative action by the Council. The Mayor shall be entitled to a voice at all meetings, but no vote, except in case of a tie in the voting of the Councilmen, in which case the Mayor shall be entitled to a vote and cast the deciding vote.
[Emphasis is mine].
There is no question but what a quorum was present in your case, all six councilmen being present.
Under Torrence's "man in the street" standard, the phrase "majority vote of those present" in § 14 of the City Charter, relative to your question probably means that the measure at issue required a yes vote of at least 4 of the 6 council members. However, the measure received only 3 yes votes, and 2 no votes. The only way for a tie to have arisen would have been for the council member who abstained to have voted no. My opinion is that under § 14 of the City Charter the abstention would not have counted as a yes vote (in which case the measure would have passed) or as a no vote (in which case there would have been a tie vote on the measure the mayor could have broken), because, without some technical knowledge on the part of the city council members, "no one could hardly reach such a conclusion."
Such a reading of the phrase, "majority of those present" also receives support from Roberts Rules of Order Newly Revised, [RRONR] § 43. That section deals with voting schemes that deviate from a simple "majority rules." It does so by assuming that in a meeting of a society with a total membership of 150, a quorum requirement of 10, there are 30 members present, of whom 25 vote. With respect to that vote, declares RRONR, § 43:
A majority is ............................13
A majority of the members present is .....16
A majority of the entire membership is....76
A two-thirds vote is .....................17
A vote of two-thirds of the members
present is ...............................20
A vote of two-thirds of the entire
membership is ............................100
[Emphasis is mine].
In other words, where a majority of the members present is 16, the 5 members who do not vote are not counted on either side of the question. In fact, RRONR, § 4 declares that the chair asks only for affirmative and negative votes, and that, "The chair should not ask for abstentions in taking a vote, since the number of members who respond to such a call are meaningless. To abstain means not to vote at all..." [Emphasis is mine]. If 16 members vote yes the measure carries; it doesn't matter whether 5 or 14 members--or any number in between--abstained or voted no.
That brings me to a peculiar aspect of the abstention relative to its "neutrality" under RRONR, § 43.
In my initial answer to your question, I misinterpreted RRONR, § 43 by reading the text following the above scheme. Part of that text declares that, "Voting requirements based on the number of members present--a majority of those present, two thirds of those present, etc.--while possible, are generally undesirable. Since an abstention in such cases has the same effect as a negative vote..." I read that phrase to mean an abstention was counted as a negative vote. A careful reading of the above scheme indicates that is not true. The abstention in such cases is neutral, counting neither for nor against the proposition, but its effect as a negative vote simply means that it isn't put in the yes column.
The same thing is true with an abstention under § 14 of the City Charter, as I read Torrence.
I realize my answer is contrary to the one I gave you, Mr. Shoffner, and Mr. Phillips. However, during the course of thoroughly researching the question, I mentally changed my answer several times until I discovered Torrence. Without that case, answering your question was difficult for several reasons: (1) As far as I can determine, there are no other Tennessee cases directly governing the effect of abstentions in municipal governing bodies when the charter contains provisons governing the number of votes required to pass measures; (2) There is a split of authority among the courts in other states that have addressed the effect of abstentions (some of them involving tie votes where the mayor has the right to break the tie) even where there are statutory, charter and ordinance provisons governing the number of votes required to pass measures; (3) A number of cases in this area have been decided on policy reasons rather than on the plain interpretation of the measure passage threshold at issue; (4) Not a single case involves a statute, charter or ordinance provision that requires the passage of measures "by a majority of those present," the measure passage threshold found in the City Charter. Sorting though all that was difficult until I read Torrence.
Now let us turn to the law governing abstentions in Tennessee where there are no charter provisions governing the number of votes required to pass measures, and to the law in other states governing abstentions when there are charter provisons governing the number of votes required to pass measures to determine whether any of these help the city in light of Torrence.
There are two prominent Tennessee cases that announce the rules for counting abstentions in cases where the charter is silent on the number of votes required to pass measures. Collins v. Janey, 147 Tenn. 477, 249 S.W. 801 (1923), and Lawrence v. Ingersoll, 88 Tenn. 52 (1889), respectively govern the question of how viva voce abstentions and blank ballots are treated in such instances. In Collins, there was apparently a seven member board. Three voted aye on a measure, two voted no, and two did not vote. The Tennessee Supreme Court observed that the public act creating the board was silent as to the number of members of the board necessary to constitute a quorum, or the number of votes necessary to pass a measure, and asked itself this question:
Under the common law a majority of such a board constituted a quorum. The question here involved is how many votes are necessary to pass a measure where a quorum is present? Ordinarily it would require a majority of the quorum. But what is the rule where one or more who are present refuse to vote--is a majority of those actually voting sufficient to validate the measure under consideration?
Yes, answered the Court. The rule and policy behind it is best illustrated by quoting lengthy parts of the language of various authorities cited by the Court:
As a general rule, the number of lawful votes actually cast decides the question; so that it is generally held that, if a quorum is present, an election or measure is determined by the majority of the votes actually cast, although an equal or even a greater number refuse or fail to vote.
After an election has been property proposed whoever has a majority of those who vote, the assembly being sufficient, is elected, although a majority of the entire assembly together abstain from voting...and if they neglect to vote it is their own fault, and shall not invalidate the action of the others...Those who are present, and who help to make up the quorum, are expected to vote on every question, and their presence alone is enough to make the vote decisive and binding, whether they actually vote or not. The objects of legislation cannot be defeated by the refusal of any one to vote when present. If eighteen are present, and nine vote, all in the affirmative, the measure is carried, the refusal of the other nine to vote being construed as a vote in the affirmative so far as any construction is necessary.
But the courts have steadfastly adhered to the rule that when members are present at a meeting, a mere refusal to vote on the part of some of the members cannot defeat the action of the majority of those voting. As long as the members are present in the council chamber and have an opportunity to act and vote with the others, it is their duty to act, and they will be regarded as present for the purpose of making a quorum and rendering legal the action of the council.
Slightly divergent views have been expressed by the courts as to the effect of a refusal of members of a council to vote, although the courts are unanimous in declining to permit such refusal to defeat an expression of the will of the body. Thus in some jurisdictions, it is said that silence or refusal to vote is concurrence, as it is the duty of the silent members to express their opinion if they desire to oppose the question before the council, and if they fail to perform their duty, they must be taken as to assenting to the action of the majority of those who do vote.
Finally, concluded the Court, "We have been unable to find any authority to the contrary."
Had the common law applied to Torrence, the city judge would have gotten his pension because the act received 8 of the 10 votes cast. That vote alone pushed the majority of those voting in favor of the act to over two-thirds. On top of that, the 9 abstentions would have been thrown in with the majority, so that the act would have passed by a vote of 17 yeas, 2 nays.
By the same token, under the common law the abstention in your case would have counted with the majority of those who voted. Three voted yes, 2 voted no; therefore, the total vote in favor of the measure would have been 4, a majority of those present and voting.
But the Tennessee Supreme Court in Lawrence treated blank ballots a different way: as neutral votes. There Knoxville's charter provided for a board of 9 aldermen, and for a mayor who voted in case of a tie. However, while the charter provided that a majority of the 9 aldermen constituted a quorum, it failed to provide for the number of votes required to pass measures. Eight aldermen were present at a meeting to elect a member of the school board. Four ballots were cast for one candidate, 3 for another, and 1 blank ballot was cast. The mayor didn't vote, but declared the candidate for whom 4 ballots were cast elected.
Not so, declared the Court. Although this case is difficult to decipher, basically it held three things: first, the candidate's election depended upon the affirmative majority of votes cast, excluding blank ballots; second, the mayor's declaration of the candidate's election didn't operate as a vote by the mayor for the candidate; and third, because there was no tie vote to break the mayor couldn't have voted for the candidate in any event.
The blank ballot, while it was neutral, was an "act of negation," reasoned the Court; therefore, it couldn't be treated as a yes vote. (A strong dissent in this case would have treated the blank ballot as an absent aldermen, in which case the candidate would have received an affirmative majority the votes cast).
It is noteworthy that although Lawrence involved the effect of blank ballots in the absence of a charter provision governing the number of votes required to pass measures, under my reading of Torrence and RRONR, the abstention in your case would be treated the same way as a blank ballot in that case: it is neutral, but operates as "an act of negation." In other words, while the abstention wouldn't be placed either in the yes or the no column, it would still operate as "an act of negation" because it wouldn't contribute to the 4 vote majority needed for the measure in question to pass.
The treatment of abstentions in municipal governing bodies in Tennessee is confused somewhat by Derryberry v. State Board of Election Commissioners, 150 Tenn. 525, 266 S.W.102, 104 (1924). In that case, the Tennessee Supreme Court (citing an earlier Tennessee case) declared that
When a question or an election is put to the people, and is made to depend upon the vote of a majority, there can be no other test of the number entitled to vote but the ballot box. If, in fact, there be some, or many who do not attend and exercise the privilege of voting, it must be presumed that they concur with the majority who do attend, if indeed they can be known at all to have an existence...It would be competent for the legislature to prescribe a different rule...
The Court followed up that language with this language cited from a Kentucky case:
Before reaching a conclusion that those who framed our fundamental law intended to change a well-settled policy by allowing the voter who is silent and expressed no opinion on a public question to be counted the same as the one who takes an interest in and votes upon it, we should be satisfied that the language used clearly indicates such a purpose.
But Derryberry involved the question of whether a call for a Tennessee Constitutional Convention had received sufficient votes by the electorate in the General Election of 1924. The answer depended upon whether the call had to receive a majority of all the votes cast in that election or only the majority of votes cast upon the question of "For a Convention," or "Against a Convention." The Constitutional provision at issue was Section 3, Art. 11, which provided that "...when upon submission [of the question] a majority of all the votes cast shall be in favor of said proposition, then delegates shall be chosen..."
The Court held that the majority was to be calculated on the basis of only the votes cast on the question. In other words, it threw out the votes of those who voted in the election, but who didn't vote on the question of the call for a convention, because to have done otherwise would have put their votes on a par with the votes of those who voted in the election and on the question.
Derryberry is similar to both Collins and Lawrence in the respect that the statute in question was silent as to the number of votes required for passage. Presumably, the Tennessee Constitution, or perhaps a statute, could have specifically provided that the majority be calculated on the basis of all the votes cast in the general election, and if it had done so, the constitution or statute would have prevailed. But to the extent that the way it counts voters who don't vote is helpful in determining how abstentions are counted in the voting of municipal governing bodies, it is similar to Collins.
Some cases in other jurisdictions still follow the common law rule in the counting of abstentions even where a statute or charter provision governs the number of votes required to pass measures. There is an extremely good annotation in 63 ALR 3d 1072 on how abstentions have been handled in various states. A significant number of cases cited therein count abstentions with the majority even when a plain reading of the statute or charter and RRONR suggests a different result. I highly recommend that annotation, particularly §§ 6 and 7, be read.
The primary case of that kind cited in that annotation is Northwestern Bell Telephone Company v. Board of Commissioners of the City of Fargo, 211 N.W.2d 399 (1973). That case presents a thorough discussion of many cases that have addressed the counting of abstentions.
There, the North Dakota statute provided that for passage of a city ordinance "...a majority of all of the members of the governing body must concur in the passage." There was a 5 member board. On a certain vote, 2 members of the board voted aye, 1 nay, and 2 passed (abstained). Under a plain reading of the statute (and RRONR, § 43) the measure would have failed because it didn't receive at least 3 votes.
But the measure passed, held the North Dakota Supreme Court. It reasoned that
Our conclusion is supported by the better logic of the cases holding that a passed vote is to be counted with the majority, by the argument that a member of a governmental body cannot avoid taking a stand (particularly where a statute such as Section 40-11-103 N.D.C.C. compels a record of the yeas and nays and does not refer to abstentions) by the importance of preventing impotence of government caused by refusal of members to act, and because such a result avoids the possibility (not hinted at here by the parties ) of placement of employees on boards by interested parties for the purpose of obstructive inaction.
Obviously, a reading of that case indicates some unusual circumstances: the 2 abstentions reflected two Northwestern Bell employee on the board who ostensibly abstained because of a conflict of interest on the measure in question; and the North Dakota statute that provided for the recording of aye and nay votes. However, the Court noted both problems only parenthetically; its holding was general.
Northwestern Bell and 63 ALR3d 1072 cite many other cases that follow similar logic in counting abstentions with the majority. Among them is a Kentucky case, Payne v. Petrie, 419 S.W.2d 761 (1967). There a Kentucky statute provided that "No ordinance or resolution shall be passed until it has been voted for by a majority of the members of each board...." One of the boards of the City of Bowling Green (which had a bicameral legislature) had 12 members. On a certain vote all 12 members were present, and 6 voted yea on an ordinance, 5 nay, and 1 passed.
The Kentucky Court of Appeals reiterated that the rule in Kentucky governing abstentions was that "when a quorum is present those members who are present and do not vote will be counted with the majority." The Court continued,
We adhere to the rule but amplify it to point out that 'majority' as used in the rule does not mean a numerical majority of the entire elected membership of the board, but means a majority of those present and voting.
The result was that Court added the pass vote to the 6 aye votes, so that the ordinance passed with 7 votes.
That "amplification" represents a considerable stretching of what appears to be a clear definition of what a majority meant under the Kentucky statute in question.
Presumably, the Tennessee courts could similarly stretch § 14 of the City Charter. However, they would have to do so in the face of Torrence. Moreover, they would have to do so in face of that section's clear definition of the meaning of "majority": "majority vote of those present," not present and voting, and in face of the body of cases in other jurisdictions that refuse to read into statutory and charter provisions governing the number of votes required to pass measures the common law rule regarding abstentions.
Both 63 ALR 3d 1072 and Northwestern Bell contain a good analysis such cases. As far as I can determine, most of the cases that chronologically follow Northwestern Bell, specifically reject it.
In Ram Development Company v. Shaw, 244 N.W.2d 110 (1976), the city council of the City of Minnetonka, Minnesota consisted of 7 members. It "passed" a rezoning ordinance on a vote of 4 ayes, 2 abstentions and 1 pass. A Minnesota statute provided for the passage of a zoning ordinance by a two-thirds vote of all the council members. The plaintiff, Ram Development Company, argued that a two-thirds vote meant 5 votes. The city argued that a two-thirds vote meant two-thirds of the votes cast--3 votes.
The Minnesota Supreme Court agreed with the plaintiff. It distinguished Northwestern Bell on three grounds: the existence of the yeas and nays statute and the conflict of interest problem in that case (although those were noted only parenthetically by the Northwestern Bell Court itself), and the two-thirds requirement of the Minnesota statute. It also conceded Northwestern Bell's point that not counting abstentions could lead to municipal council gridlock, but swiftly closed the book on it with, "[T]his court is not free to further construe the statute in the face of such clear language."
The Supreme Court of Kansas in City of Haven v. Gregg, 766 P.2d 143 (1985) considered the effect of abstentions under a Kansas statute that provided, "The vote on any ordinance, except as otherwise provided herein, shall be by yeas and nays," and "No ordinance shall be valid unless a majority of all the members elect of the council of council cities...vote in favor thereof. The mayor shall have the power to cast the deciding vote in favor of the ordinance." The court noted that the act didn't address the effect of an abstention upon the majority vote for passage of ordinances.
The City of Haven had a mayor and 5 council members. At a council meeting the mayor was absent and 4 council members were present. Two councilmen voted in favor of an ordinance, 1 abstained, and 1 member acting as mayor didn't vote. The ordinance was challenged on the basis that a majority of the council hadn't voted for its passage.
The Court upheld the challenge. It agreed that if the common law rule prevailed, the abstentions would "count as a vote with the majority or at least as acquiescence in the majority vote," and that the ordinance would have passed because 3 (the 2 yes votes plus the 1 abstention) of the 5 council members would have voted for the ordinance. However, said the Court, the common law rule had been modified by the statute in question. Northwestern Bell put North Dakota into the column of cases that have adopted the common law rule that abstentions counted as votes on the side of the majority, but Kansas didn't belong in that column because, "The Legislative intent is clear...Here, only two of the five council members of the City of Haven voted for passage of the ordinance. The abstention by one of the elected council members invalidated the ordinance because [the statute] clearly prohibits counting an abstention or refusal to vote as an affirmative vote." That was true even though the statute was silent as to the counting of abstentions.
[Apparently. the fact that the statute in question provided only for yea and nays votes was not an issue in the Court's mind].
Missouri joins Kansas and Minnesota in Braddy v. Zych, 702 S.W.2d 491 (1986). There the Missouri Court of Appeals held that "an abstention is not a favorable vote." The St. Louis City Charter provision in question required that "no bill shall become an ordinance unless a majority of all the members vote in favor [the Court's emphasis] of its adoption." The board of aldermen had a membership of a president and 28 members. The vote on an ordinance was 14 yes, 9 no, and 1 abstention. The phrase "vote in favor" in the charter meant what it said, the Court decided. The bill had received only 14 votes, less than a majority required by the charter.
The Alabama Supreme Court didn't specifically reject Northwestern Bell in Man v. Key, 345 So.2d 293 (1977), but declared that "We follow the plain language of the act," in holding that a statute that provided for the Town of New Hope city council to break the tie in an election contest for mayor "by a majority vote of the total membership of the governing body," meant exactly what it said. The 6 member board, with 1 position vacant, voted as follows: 3 yes, 1 no, and 1 abstention. The Court reasoned that, "If [the legislature] had intended that a majority of a quorum or of the members constituting the council after a vacancy occurred should suffice, the Legislature would have said so." There was no other discussion of the law governing abstentions, and the holding was limited to the facts of this case.
However, this case probably permits Alabama to be counted among the states that rejects the common law method of counting abstentions in municipal governing bodies in the presence of a statute or charter that governs the number of votes required for passage of measures.
On the whole, the law in other jurisdictions governing the effect of abstentions in municipal governing bodies probably doesn't give the city much hope that Torrence is out of line.
Sidney D. Hemsley
Senior Law Consultant