If New York town voters approve restoring a town justice office at a special election before December 31, can the justice already elected at the November election fill the post, or must a new election be held in 1999?

Plain-English summary

The Town of Fayette had a procedural tangle around a town justice position. On August 14, 1997, the town board passed a resolution under Town Law § 60-a reducing the number of justices from two to one. The resolution was subject to a permissive referendum, but no petition was filed within the 30-day statutory window, so the resolution took effect 30 days after adoption. The position was scheduled to be abolished at the expiration of the current term.

A position of justice was scheduled to be filled at the November 4, 1997 biennial election. After the election, voters filed a late petition for a referendum. The town board then passed a new resolution restoring the position and authorized its own referendum on the resolution. The board of elections found it was too late to add the proposition to the November 1997 ballot. The board was considering a special election before December 31, 1997.

The town attorney asked two questions: if the special election restored the position, could the justice elected on November 4, 1997 take the seat, or would a new election in November 1999 be required? And what would the term be?

The AG's analysis works in steps.

The August resolution eliminated the position effective at the end of the existing term, because the 30-day permissive referendum window closed without a timely petition (Town Law §§ 91, 94). NY Const Art VI § 17(d) ties the abolition to the term expiration. The November 1997 election to the position therefore has no effect: there is no position to fill.

The later restoration resolution is a separate procedural action subject to its own permissive referendum. The board's motion calling for a referendum triggers Town Law § 91's timing rule: a motion 60 to 75 days before a biennial town election goes on that election's ballot; otherwise a special election must be held 60 to 75 days from the motion. The Fayette schedule pointed to a special election.

If the special election approves restoration, the position then exists. Town Law § 60-a(2) provides that the election to fill the restored office takes place "at the biennial town election next succeeding the effective date of such resolution." Under NY Const Art VI § 17(d), town justices are chosen "for terms of four years from and including the first day of January next after their election." The AG had construed this in Op Atty Gen (Inf) No. 90-76 to require a four-year term beginning January 1.

So: assuming voter approval at the special election, the restored position would be filled at the next biennial town election (November 1999), for a four-year term commencing January 1, 2000.

Currency note

This opinion was issued in 1997. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why did the November 1997 election to the position not count?

Because the August resolution eliminating the position had become effective. With no timely petition for referendum, the 30-day permissive referendum window closed and the resolution took effect by operation of law (Town Law §§ 91, 94). The election to a position that was scheduled to be abolished at the end of the term has no effect: there is no position to fill.

Why didn't the late petition revive the position?

A petition for permissive referendum must be filed within 30 days of the resolution's adoption (Town Law §§ 91, 94). A late petition does not extend the period. The town board could initiate a fresh resolution (which it did), but that fresh resolution is a separate procedural action.

Why a special election instead of waiting for November 1999?

The board's motion calling for a referendum fell within Town Law § 91's window that required a special election rather than placement on a biennial ballot. The motion was not 60 to 75 days before a biennial election, so the default rule of § 91 (special election within 60 to 75 days of the motion) applied.

Couldn't the elected justice from November 1997 just take the office if voters restore it before December 31?

No, two-fold. First, the November election itself was without effect because the position was scheduled to be eliminated. Second, even if voters restored the position, Town Law § 60-a(2) requires the election to fill the restored office to occur at the "biennial town election next succeeding" the restoration. That biennial election would be November 1999.

Why a four-year term?

Because NY Const Art VI § 17(d) sets the term of a town justice at four years beginning January 1 after the election. The Constitution overrides any local arrangement. Op Atty Gen (Inf) No. 90-76 confirmed this constitutional rule.

What happens between the special election restoring the office (late 1997) and the November 1999 election?

There is no town justice for that seat during that interval. The Fayette town court continues to operate with whatever number of justices remains. After the November 1999 election, the seat is filled effective January 1, 2000.

Background and statutory framework

Town Law § 60-a governs the elimination and restoration of town justice positions. Subdivision 1 lets the town board reduce the number of justices by resolution subject to permissive referendum. Subdivision 2 governs election to a restored position: it must occur at the biennial town election next succeeding the effective date of the restoring resolution, for a term beginning January 1.

Town Law §§ 90 et seq. govern permissive referendums. § 91 sets the timing rules. § 94 confirms that a resolution subject to permissive referendum does not take effect for 30 days after adoption; if no petition is filed within that period, the resolution becomes effective.

NY Const Art VI § 17(d) is the constitutional anchor on town justice terms: four years beginning January 1 after election.

The AG previously addressed the constitutional rule in Op Atty Gen (Inf) No. 90-76.

Citations

• NY Const Art VI § 17(d) (town justices chosen for four-year terms beginning January 1).
• Town Law § 60-a (elimination and restoration of town justice positions).
• Town Law § 60-a(2) (election to restored office at next biennial town election).
• Town Law § 91 (timing for permissive referendums).
• Town Law § 94 (resolutions subject to permissive referendum take effect 30 days after adoption if no petition).
• Town Law § 90 (general permissive referendum provisions).
• Op Atty Gen (Inf) No. 90-76 (four-year term required by Art VI § 17(d)).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_97-55_pw.pdf

Original opinion text

OPINIONS OF THE ATTORNEY GENERAL

Page 1 of 2

Opn. No. 97-55
NY CONST, ART VI, §17(d); TOWN LAW §§60-a, 90, 91, 94.
A county may obtain a copyright under federal law in order to prevent unauthorized use of its
publications.
December 17, 1997
William J. Kirk Esq. Informal Opinion
Town Attorney No. 97-55
Town of Fayette
P. O. Box 630
Waterloo, NY 13165
Dear Mr. Kirk:
In the event a proposition to restore the position of town justice is approved by the voters in a special
election prior to December31, 1997, you inquire whether the justice elected on November4, 1997 could
fill the position or whether the position would be filled at the biennial election to be held in November
of 1999. Further, you ask whether a justice elected in November of 1999 would have a term of two years
and thereafter a term of four years.
You have explained that on August 14, 1997 the town board adopted a resolution under section 60-a of
the Town Law reducing the number of town justices from two to one. No petition was filed within the
statutory time period by the voters requesting a referendum on the resolution. A position of town justice
was scheduled to be filled at the biennial town election on November4, 1997.
A late petition for a referendum on this resolution was filed by the voters. The town board subsequently
passed a resolution restoring the position of justice and authorized a referendum on the resolution. The
board of elections found that it was too late to place the proposition on the ballot in November of 1997
and the town board is considering submitting the proposition to the voters prior to December31, 1997.
The procedure for changing the number of town justices is provided by section 60-a of the Town Law.
Under that provision, the town board may, subject to permissive referendum, enact a resolution reducing
the number of town justices and enact a resolution restoring a town justice position that was previously
eliminated.
The election of a ... town justice to the restored office shall take place at the biennial town
election next succeeding the effective date of such resolution, for a term of office
commencing January first following the election. Town Law §60-a(2).
Therefore, under section 60-a the elimination or restoration of the position of town justice is subject to a
permissive referendum. Under Article 7 of the Town Law (§§90, et seq.), an action subject to permissive
referendum may be submitted to the voters upon the filing of a proper petition or the town board, on its
own motion, may submit the action to a referendum. A resolution subject to permissive referendum does
not take effect until thirty days after its adoption. Id., §§91, 94. However, if a petition is filed requiring a
referendum or if the town board subjects the resolution to a referendum within the thirty day period, the
resolution will not take effect unless it is approved by an affirmative vote of a majority of the qualified
electors of the town. Id.

http://www.oag.state.ny.us/lawyers/opinions/1997/informal/97_55.html

4/20/2006

OPINIONS OF THE ATTORNEY GENERAL

Page 2 of 2

Under the facts you have presented, the resolution of the town board to eliminate a position of town
justice became effective thirty days after its enactment because a petition was not filed on a timely basis.
Therefore, the position was eliminated, effective at the expiration of the term. NYConst, ArtVI, §17(d).
The November 1997 election of a town justice to a new term would not take effect. The subsequent
resolution restoring the position of town justice was made subject to a referendum by motion of the town
board. Under section 91 of the Town Law, a petition or a motion of the town board requesting a
referendum and occurring not more than 75 nor less than 60 days prior to a biennial town election
requires that the action of the town board be submitted to the voters at that biennial town election.
Otherwise, the action must be submitted at a special town election to be held not more than 75 nor less
than 60 days from the date of the petition or motion of the town board. Id., §91. The date of the motion
by the town board calling for a referendum requires a special election within this statutory time period.
If the voters approve the restoration of the office of town justice at the special election, the election of a
town justice to the restored office takes place at the Abiennial town election next succeeding the
effective date of such resolution (upon the approval of the voters), for a term of office commencing
January first following the election@. Id., §60-a(2). Under the State Constitution, justices of town courts
Ashall be chosen by the electors of the town for terms of four years from and including the first day of
January next after their election@. NY Const, ArtVI, §17(d). We have construed this provision to
require a four year term for town justices commencing on the first day of January after their election.
OpAttyGen (Inf) No. 90-76.
We conclude that if the voters of your town approve the restoration of the office of town justice, a
justice must be elected to that position at the next biennial election for a term of four years commencing
on the first day of January following the election.
The Attorney General renders formal opinions only to officers and departments of State government.
This perforce is an informal and unofficial expression of the views of this office.
Very truly yours,
JAMES D. COLE
Assistant Attorney General
In Charge of Opinions

http://www.oag.state.ny.us/lawyers/opinions/1997/informal/97_55.html

4/20/2006