O'Doherty (plaintiff) v Attorney General and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 23 November 2009
• Neutral Citation: [2009] IEHC 516
• Court: High Court
• Docket Number: [2008 No. 3377 P]
• Date: 23 November 2009

[2009] IEHC 516

THE HIGH COURT

[No. 3377 P/2008]

O'Doherty v AG, Ireland & Limerick County Council

[2009] IEHC 516

BETWEEN

PATRICK O'DOHERTY

PLAINTIFF

AND

THE ATTORNEY GENERAL, IRELAND AND LIMERICK COUNTY COUNCIL - BY ORDER

DEFENDANTS

AND

FIANNA FÁIL

NOTICE PARTY

LOCAL GOVT ACT 2001 S19

GOOLD v COLLINS & ORS 2005 1 ILRM 1 2004/19/4389 2004 IESC 38

ROE v WADE 1973 410 US 113

LOCAL GOVERNMENT ACT 2001 S19(4)(A)

CONSTITUTION ART 28A

CONSTITUTION ART 28A.5

KING & ORS v MIN FOR ENVIRONMENT & ORS (NO 2) 2007 1 IR 296 2006/32/6923 2006 IESC 61

IQBAL & ORS v MIN FOR JUSTICE & AG 2008 4 IR 362 2008/29/6478 2008 IESC 29

CURTIN v CLERK OF DAIL EIREANN & ORS 2006 2 IR 556 2006 2 ILRM 99 2006/13/2692 2006 IESC 14

RING v AG 2004 1 IR 185 2004 2 ILRM 378 2004/44/10104 2004 IEHC 88

HOGAN & WHYTE J.M. KELLY: THE IRISH CONSTITUTION 4ED 2003 PARA 5.2.03

CONSTITUTION ART 28A.2

SINNOTT v MIN FOR EDUCATION & ORS 2001 2 IR 545

HOGAN & WHYTE J.M. KELLY: THE IRISH CONSTITUTION 4ED 2003 PARA 5.2.10

ART 26 OF THE CONSTITUTION & OFFENCES AGAINST THE STATE (AMDT) BILL 1940, IN RE 1940 IR 470

O'DONOVAN v AG 1961 IR 114

LOCAL GOVT ACT 1994 S11

CONSTITUTION ART 16.7

CONSTITUTION ART 18.10.3

FOLEY DEFERENCE & THE PRESUMPTION OF CONSTITUTIONALITY 2008 166

INJUNCTION

Interlocutory injunction

Principles governing grant - Balance of convenience - Presumption of constitutionality -Whether court should be slow to prevent public body from exercising statutory responsibility - Effect of grant of injunction on electorate -Whether rights of electorate prejudiced -Constitution of Ireland 1937, arts 28(2) and 28(5) - Local Government Act 2001 (No 37), s 19 - Interlocutory relief refused (2008/3377P - Sheehan J - 10/6/2008) [2008] IEHC 172

O'Doherty v Attorney General & Limerick Co Council

ELECTIONS AND REFERENDA

Local authorities

Casual vacancies - Co-option - Manner in which casual vacancies filled - Whether system of filling casual vacancies by co-option unconstitutional - Whether Constitution mandates that there should be directly elected local authorities - Presumption of constitutionality - Locus standi - Mootness - Eligibility for membership of local authority - Interpretation of Article 28A - Whether providing for co-option failed to comply with the fundamental norms of legal order in democracy postulated by Constitution - G v Collins [2004] IESC 38, [2005] 1 ILRM 1; King v Minster for the Environment (No 2) [2006] IESC 61, [2007] 1 IR 296; Iqbal v Minister for Justice [2008] IESC 29, [2008] 4 IR 263; Curtin v Dáil Éireann [2006] IESC 14, [2006] 2 IR 556, [2006] 2 ILRM 99; Ring v Attorney General [2004] IEHC 88, [2004] 1 IR 185, [2004] 2 ILRM 378; Sinnott v Minister for Education [2001] 2 IR 545; Re Offences Against The State (Amendment) Bill 1940 [1940] IR 470 and O'Donovan v Attorney General [1961] IR 114 considered Local Elections (Petitions and Disqualifications) Act 1974 (No 8), s 15(1) - Local Government Act 2001 (No 37), s 19 - Local Elections Regulations 1995 (SI 297/1995), arts 25, 28 and 124 - Constitution of Ireland 1937, Articles 16.7, 18.10.3 and 28A - Claim dismissed (2008/3377P - Birmingham J - 23/11/2009) [2009] IEHC 516

O'Doherty v AG, Ireland & Limerick County Council

Facts The plaintiff alleged that s. 19 of the Local Government Act, 2001, which dealt with the manner in which casual vacancies in the membership of local authorities were to be filled was repugnant to the Constitution and in particular Article 28A therein. The plaintiff was an unsuccessful candidate in the Rathkeale local elections in Limerick in 2009. Following the resignation of one of the elected councilors, the plaintiff sought an interlocutory injunction to restrain the filling of that vacancy. However, the plaintiff's application was refused and the appeal therefrom was dismissed. The relevant vacancy was subsequently filled by the co-option of another councilor. Issues were raised by the defendants regarding locus standi and mootness. The essence of the plaintiff's argument was that a system of filling casual vacancies in local elections by way of co-option was unconstitutional. It was submitted that the Constitution mandated that there should be directly elected local authorities and a local authority to which co-option could take place was not a directly elected local authority.

Held by Birmingham J. in dismissing the claim: That the Supreme Court when dealing with the interlocutory injunction application of the plaintiff disposed of the locus standi issue. In any event the plaintiff would have been found to enjoy locus standi to commence the present proceedings. The plaintiff's role herein was as a citizen seeking to raise an issue in the public interest and although the vacancy had been filled, refusing to consider the present challenge to that filling procedure might have meant that the issue identified and categorised by the Supreme Court as a fair issue to be tried, would never be addressed. Having considered five different approaches to the interpretation of the Constitution, namely literal interpretation, harmonious interpretation, the broad approach, the historical approach and the natural approach, the provision of co-option as a method of filling casual vacancies in local government did not fail to comply with the fundamental norms of the legal order in a democracy postulated by the Constitution. Furthermore, a brief overview of international practice refuted the suggestion that democratic norms mandated the holding of by-elections in all circumstances.

Reporter: L.O'S.

1 1. This case involves a challenge to the constitutionality of s. 19 of the Local Government Act 2001, a section which deals with the manner in which casual vacancies in the membership of local authorities are to be filled. Before dealing with the details of the challenge, it is perhaps appropriate to say a little about the background to the present proceedings.

2 2. The plaintiff is a citizen of Ireland and he is qualified to, and does in fact, appear on the electoral register for the Rathkeale electoral area, which is one of the five local electoral areas that comprise Limerick County Council. Of note in the context of the present proceedings is that in the local elections held in June 2004, the last to be held before the commencement of the present proceedings, the Rathkeale electoral area returned five members, three Fine Gael and two Fianna Fáil.

3 3. On the 31 ^st March, 2008, Councillor John Griffin, one of the Fianna Fáil councillors that had been elected from the Rathkeale electoral area at the previous election resigned. As we shall see in due course, if the procedure set out in the Local Government Act 2001, was followed, Limerick County Council would co-opt a person to fill the vacancy that arose on his resignation, and having regard to the terms of the Act the vacancy was required to be filled by the co-option of a Fianna Fáil nominee.

4 4. By notice of motion dated 16 ^th May, 2008, the plaintiff sought an interlocutory injunction to restrain the filling of the vacancy. At that stage Limerick County Council was added as a co-defendant and Fianna Fáil as a notice party. The plaintiff's application for an interlocutory injunction was refused in the High Court on the 10 ^th June, 2008, and an appeal to the Supreme Court was dismissed on the 13 ^th June, 2008.

5 5. On the 16 ^th June, 2008, the casual vacancy that had arisen following the resignation of Councillor Griffin was filled by Mr. Michael Mulcair on the nomination of the Fianna Fáil party. Following the co-option of Councillor Mulcair, the pattern of representation for the Rathkeale electoral area was restored to that which had been put in place by the results of the 2004 local elections, i.e. three Fine Gael and two Fianna Fáil.

6 6. For completeness, I should indicate that in the local elections held in June, 2009 the Rathkeale electoral area was reduced from a five seater to four seater, and returned three Fine Gael and one Fianna Fáil candidate. Mr. Michael Mulcair was an unsuccessful Fianna Fáil candidate in this election. The plaintiff also contested the election unsuccessfully.

7 7. The present proceedings have given rise to a number of issues including whether the plaintiff enjoys locus standi either at all, or in respect of certain arguments that he wishes to advance and whether the proceedings are moot.

8 8. Turning first to the question of locus standi which as Hardiman J. pointed out in G. v. Collins & Others [2005] 1 I.L.R.M. 1, falls to be addressed at the time when the proceedings are commenced as distinct from the question of mootness which falls to be considered when the matter actually comes before the court, I note that the issue has already attracted the attention of the Supreme Court. Delivering the judgment of the Supreme Court on the interlocutory application on the 13 ^th June, 2008, Macken J. stated:-

"The first thing to be said is that the court is satisfied he has locus standi to commence the proceedings and to bring the present application, but he very fairly accepts that he does not have a direct interest in the co-option to the council in the sense of not himself being a person either seeking to be co-opted or in any other way closely attached to that co-option."

The views of the Supreme Court, in effect, dispose of the issue of locus standi, but I should make clear that even if the Supreme Court had not specifically addressed the issue, I would have been of the view that as an elector in the Rathkeale area where a vacancy was about to be filled, and as someone anxious to serve on Limerick County Council as a councillor for the Rathkeale electoral area, as evidenced by his candidature in the 2009 local elections, the plaintiff enjoyed the necessary standing to...