Requestor: Bruce J. McKeegan, Esq., Town Attorney Town of Andes P.O. Box 188 Delhi, New York 13753
Written by: James D. Cole, Assistant Attorney General in Charge of Opinions
You have asked whether a town that has restored the second position of town justice may appoint someone to serve as town justice until an election can be held to fill such restored position at the next regular town election.
Under section 60-a of the Town Law, the town board of any town in which the number of justices has been reduced may adopt a resolution subject to permissive referendum restoring a position of town justice. The election of a town justice to the restored office is to take place at the biennial town election next succeeding the effective date of the resolution for a term of office commencing January first following the election (Town Law, § 60-a). Your question is whether the restored position can be established prior to January first, permitting an appointment to fill the vacancy until it can be filled by election.
In our view, the position of town justice can only be restored for an initial term commencing on January first following the biennial election succeeding the effective date of the resolution. Under Article VI, § 17(d) of the Constitution, "justices of town courts shall 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". We have construed this provision as requiring that the terms of town justices be set at four years commencing on the first day of January after their election (see 1981 Op Atty Gen [Inf] 236). Section 60-a(2) of the Town Law must be construed as implementing this provision to provide that the office of town justice may not be restored until January first following the town election next succeeding the effective date of the resolution restoring the office.
We conclude that an office of town justice cannot be restored until January first following the town election next succeeding the effective date of the resolution authorizing the position.
The Attorney General renders formal opinions only to officers and departments of the State government. This perforce is an informal and unofficial expression of views of this office.