Tuesday, May 24, 2016

Did Willingboro Township abuse the Doctrine of Necessity?

On May 17, 2016, the five-member Willingboro Township Council (Burlington County) invoked the "Doctrine of Necessity" and then voted 3 to 2 to defend and indemnify its deputy mayor against a defamation lawsuit brought by the mayor.

The Council consists of Mayor Anderson, Deputy Mayor Walker and members Jennings, Nock and Holley.  Anderson is the plaintiff in the defamation suit and Walker is the defendant.  Jennings submitted an affidavit in the lawsuit in support of Anderson. 

If we grant, as the Township did, that Anderson, Walker and Jennings are all conflicted from voting on whether Township taxpayers should underwrite Walker's costs of defending against Anderson's lawsuit and paying Anderson damages if he prevails, there would only be two Council members left--Nock and Holley--who could permissibly vote on the issue.  Since those two members do not constitute a quorum of the five-member Council, the lack of a quorum, in the normal course, would prevent a vote on this issue.

New Jersey, however, recognizes a "Doctrine of Necessity" that in some cases permits public officials to vote on a matter even if they are in conflict.  But, the Doctrine may only be resorted to when there is "an imperative reason for it, in order to prevent a failure of justice [and] arises in situations of stern necessity." Griggs v. Princeton Borough, 33 N.J. 207, 220-21 (1960).

While having the taxpayers defend and indemnify him is clearly imperative to Walker, I don't believe that it is of much importance to Willingboro taxpayers.  And, the taxpayers' interests (and not Walker's) is what matters.

Perhaps a Willingboro resident might file an action in lieu of prerogative writs to set aside Resolutions 2016-102 and 103 within the statute of limitations, which I believe, after consulting New Jersey Court Rule 4:69-6, to be 45 days.  That would be an interesting court case to follow.