William F. Reynolds, Esq. Town Attorney, Schuylerville
You have asked whether a town is authorized to enact a local law establishing the position of acting town justice, where the town board has, in accordance with State law, reduced the number of justices from two to one.
Under section 20 (1) (a) of the Town Law, towns of the first class are required to have two town justices. Towns of the second class are to have two town justices, except those with less than 300 residents and having a taxable property valuation of less than $100,000 which are to have only one town justice (id., § 20 [1] [b]). Apparently, your town reduced the number of its justices under the provisions of section 60-a (2) of the Town Law, which authorizes a town by resolution, subject to permissive referendum, to reduce the number of town justices.
Having reduced the number of justices to one, you ask whether you may establish the position of acting town justice. Under the New York Constitution, Art VI, § 17 (d), the number of judges of each town court, the classification and the duties of the judges are to be prescribed by the Legislature. Further, the terms, method of selection and method of filling vacancies for judges of this court are also to be prescribed by the Legislature. We have found no authorization for a town to establish the position of acting town justice (compare Village Law, § 3-301 [2] [a]). In light of the constitutional provision, there is no authority for a town to establish the position of acting town justice by local law.
We conclude that a town may not establish the position of acting town justice.