The High Court has rejected a constitutional challenge to the law allowing casual vacancies on local authorities to be filled by co-option, and refused the relief sought by Rathkeale elector Patrick O’Doherty.
In a judgment delivered on 23 November 2009, Mr Justice Birmingham held that O’Doherty had standing to bring the proceedings and that the case should be heard despite arguments that it had become moot. The court’s decision was on the substantive constitutional challenge; it did not undo the earlier co-option or decide a fresh vacancy.
O’Doherty challenged section 19 of the Local Government Act 2001, arguing that Article 28A of the Constitution required local authorities to be directly elected and therefore barred filling vacancies by co-option. The State defendants argued that Article 28A.5 expressly left the method for filling casual vacancies to legislation. Fianna Fáil was a notice party, and Limerick County Council was joined as a co-defendant by order.
The case followed the resignation of Fianna Fáil councillor John Griffin on 31 March 2008. On 16 June that year, the council filled the Rathkeale vacancy by co-opting Michael Mulcair, nominated by Fianna Fáil. O’Doherty’s application to stop the co-option was refused by the High Court on 10 June 2008, and his appeal was dismissed by the Supreme Court three days later. Those were earlier procedural decisions, separate from the final constitutional ruling.
The judge noted that the 2009 local election had since reduced Rathkeale from five seats to four. Mulcair and O’Doherty both contested that election unsuccessfully. Although the State argued that these events made the case moot, the judge considered that challenges to co-option could be difficult to complete before a vacancy was filled and that the issue was capable of arising again.
On the merits, the court found that Article 28A.5 entrusted the Oireachtas with deciding how casual vacancies should be filled. The judgment considered the constitutional text, the history of co-option, and the practical consequences of alternatives such as by-elections, including the potential effect on political balance in multi-seat areas. It concluded that co-option did not breach fundamental democratic norms and that O’Doherty had not established that the relevant provisions were unconstitutional.
The court refused the relief sought. The judgment does not state a separate order for costs.