Can a NY county pass a term limits law for elected officials without a public referendum?

Subject

Term limits may be enacted by local law without a referendum

Plain-English summary

Westchester County asked the AG to confirm the office's 1983 informal opinion holding that a local government can use a local law (with no referendum) to limit the number of consecutive terms an elected officer may serve. By 1995, the question had been definitively answered by the Court of Appeals in Roth v Cuevas, but Westchester wanted the AG's reaffirmation.

The AG walked through both the home-rule authority and the referendum analysis.

On authority: Municipal Home Rule Law § 10(1)(i) and (ii)(a)(1) lets a local government enact local laws relating to its property, affairs, and government, and to the qualifications of its officers and employees. The AG concluded a term limit is a "qualification" within the meaning of these provisions, and no state law or constitutional provision conflicts. Roth v Cuevas reached the same conclusion at the city level (involving a New York City Charter amendment) and the Court of Appeals affirmed on the trial court's opinion.

On the referendum: Municipal Home Rule Law § 23 lists categories of local laws that require mandatory referendums. The AG ran through them. Section 23(2)(d) requires a referendum to change the manner of election or succession to an elective office. Term limits do neither: "succession" refers to filling vacancies, not eligibility for re-election (Matter of Benzow v Cooley). Section 23(2)(e) covers abolishing the office, changing the term, the method of nomination, or reducing salary mid-term, none of which a term limit does. Section 23(2)(f) covers transferring, curtailing, or abolishing powers of an elective office, and a term limit does not transfer powers; it limits how many consecutive terms one person can hold them.

The opinion also cites Golden v Clark, 76 NY2d 618 (1990), recognized in Roth, that term-limit legislation has a rational basis: broadening political participation, reducing corruption opportunities, increasing public confidence. The AG rejects equal-protection and right-to-vote challenges under Article I § 1 of the State Constitution: a term limit applies neutrally, does not violate one-person-one-vote, and does not disenfranchise.

Roth specifically involved petitioners using Municipal Home Rule Law § 37 (city charter amendment by initiative) to place a term-limit proposal on the ballot. The AG's analysis applies whether the term limit is adopted directly by the legislative body or through the § 37 initiative procedure.

Currency note

This opinion was issued in 1995. 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 aren't term limits a change in "the term" of an elected officer?

Because the "term" referenced in § 23(2)(e) means the length of one elective term (two years, four years, etc.). A term limit does not change how long one term lasts; it caps how many consecutive terms one person can serve. The terms themselves continue to be the same length, and a different person can serve any number of consecutive terms after the limit is reached.

What did the Court of Appeals actually decide in Roth v Cuevas?

Roth involved an initiative petition under Municipal Home Rule Law § 37 to amend the New York City Charter with term limits on various elected officials. The Supreme Court (Justice Martin Evans) upheld the petitions, finding the proposed term-limit law within local legislative authority and not inconsistent with any state law. The Appellate Division affirmed, and the Court of Appeals affirmed for the reasons stated by Justice Evans. So the holding has the imprimatur of all three levels of New York's appellate system on the same opinion.

Can the term limit apply retroactively to the current officeholder's prior terms?

The opinion does not address retroactivity specifically. Roth's broader analysis (and the Court of Appeals' affirmance) treated term limits as qualifications going forward, which suggests prospective application is the cleaner path. Counting prior terms can be done, but raises additional issues that local drafters often address explicitly in the local law.

What if a town wants to recall an officeholder rather than wait for a term limit to kick in?

Recall is a separate mechanism with its own legal framework. Term limits and recall are different tools: term limits set a ceiling on consecutive terms; recall is an election-driven removal mechanism that requires its own constitutional or statutory grounding in New York.

Does this apply to county judges or other state officers?

No. The AG's analysis is about local elective offices. Judges and most state officers are governed by state constitutional and statutory provisions that local term-limit laws cannot reach. The home-rule authority used here is over local officers and employees.

Statutory and constitutional framework

Municipal Home Rule Law § 10(1)(i) and (ii)(a)(1) is the home-rule grant authorizing local laws on a municipality's property, affairs, government, and the qualifications of its officers and employees. Term limits fit within "qualifications."

Municipal Home Rule Law § 23(2)(d), (e), and (f) list the categories of local laws subject to mandatory referendum. None applies to term limits as analyzed by the AG.

Municipal Home Rule Law § 37 is the city charter initiative procedure that the petitioners in Roth used to put term limits before the New York City electorate.

NY Constitution Article I § 1 protects citizens from being deprived of rights and privileges secured to citizens of the state. Roth held that term limits do not implicate Article I § 1 protections in a constitutionally significant way.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_95-29_pw.pdf

Original opinion text

NY CONST, ART I, § 1; MUNICIPAL HOME RULE LAW §§ 10(1)(i) and
(ii)(a)(1), 23(2)(d), (e) and (f), 37.
A local government is authorized to enact a local law
limiting the number of consecutive terms that an elected officer
may serve. Such a local law is not subject to a referendum.

May 9, 1995

Marilyn J. Slaatten, Esq.
County Attorney
County of Westchester
Room 600, Michaelian Office Bldg.
148 Martine Avenue
White Plains, NY 10601

Informal Opinion
No. 95-29

Dear Ms. Slaatten:
You have requested an opinion concerning the legality of
local legislation, without a referendum, imposing a limitation on
the number of consecutive terms local elected officials may
serve. You have asked for a confirmation of the viability of
Informal Opinion No. 83-10.
In Informal Opinion No. 83-10, we concluded that a village
could enact a local law to limit the number of consecutive terms
that a person may serve as mayor. We found that such a local law
would not be subject to a referendum.
First, we found that there is authority for a local
government to enact a local law limiting the number of
consecutive terms a local elected officer may serve. We cited
provisions of the Municipal Home Rule Law which authorize the
enactment of local laws, consistent with the Constitution and
general State laws, in relation to the property, affairs and
government of a local government and in relation to the
qualifications of its officers and employees. Municipal Home
Rule Law § 10(1)(i) and (ii)(a)(1). We found that a limitation
on the number of consecutive terms relates to the affairs and
government of a local government and constitutes a qualification
for office. We found no State law or provision of the
Constitution in conflict with such a local law.
Citing Matter of Benzow v Cooley, 12 AD2d 162 (4th Dept),
affd on other grounds, 9 NY2d 888 (1961) our 1983 opinion also
concluded that a local law limiting the number of consecutive
terms an elected officer may serve is not subject to a
referendum. It is well established that a referendum may not be
conducted by a local government in the absence of specific

2
constitutional or statutory authority. Citing 1980 Op Atty Gen
(Inf) 221. First, we found that the legislation would not be
subject to a mandatory referendum under section 23(2)(d) and (e)
of the Municipal Home Rule Law. 1 We reasoned that the term
limitation was not a change in the law of succession to the
office of mayor because the law of succession to an office refers
only to the method of filling a vacancy in the office. Citing
Matter of Benzow v Cooley, supra, affd on these grounds, 9 NY2d
888 (1961). Our 1983 opinion also concluded that the proposed
local law would not change the term of an elected officer nor
change the method of nominating or electing an elected officer.
Ibid. We found that it would not abolish, transfer or curtail
any power of an elected officer, removing grounds for a
referendum under Municipal Home Rule Law § 23(2)(f).
We see no basis for departing from the view expressed in our
1983 opinion that a local law limiting the number of consecutive
terms that an elected officer may serve is not subject to a
referendum. Further, we continue to believe that there is
authority for the enactment of such a local law. As you point
out, New York courts have concluded that term limitation
legislation is valid. Matter of Roth v Cuevas, 158 Misc 2d 238
(Sup Ct NY Co), affd, 603 NYS2d 736 (App Div 1st Dept), affd for
reasons stated in the opinion of Supreme Court Justice Martin
Evans, 82 NY2d 791 (1993). In Roth, the petitioner filed a
motion seeking judicial validation of initiative petitions
seeking to amend the New York City Charter to establish a limit
on the number of consecutive terms of office for various elected
officials. The Supreme Court held, inter alia, that the proposed
local law was not beyond local legislative authority granted
pursuant to the New York Constitution and Municipal Home Rule
Law; that the petitions did not seek to exercise legislative
authority inconsistent with State law; that limitation of the
number of consecutive terms was not an arbitrary exclusion from
office; that the proposed law did not impermissibly infringe on
the right to seek office under the Equal Protection Clause of the
New York Constitution; and that the proposed local law did not
disenfranchise the voters.
The petitions were filed under section 37 of the Municipal
Home Rule Law which establishes a procedure by which a proposal
to amend a city charter made by qualified electors can be placed
on the ballot for public referendum. In dealing with the
question of local legislative authority, the Court cited
provisions of the Constitution and State law calling for the
rights, powers, privileges and immunities granted to local
governments to be liberally construed. Citing with approval the
1983 Attorney General opinion, the Court found authority for the
term limitation legislation in the power granted to local
governments to enact local laws relating to their affairs and
government. The Court reasoned that the term limitation
legislation would affect only New York City public officers and
that the State would have no paramount interest in these term
limits. The legislation would not, to a substantial degree,

1

Under section 23(2)(e), a referendum must be held if a
local law abolishes an elective office; changes the method of
nominating, electing or removing an elective officer; changes the
term of an elective officer; or reduces the salary of an elective
officer during his term of office.

3
constitute a matter of State-wide concern. Alternatively, the
Court found authority for the term limit legislation in the power
of local governments to enact local laws relating to the powers,
duties, qualifications, number, mode of selection and removal and
terms of office of its officers. Municipal Home Rule Law
§ 10(1)(ii)(a)(1).
In Roth, the Court concluded that the term limit legislation
is not inconsistent with the Constitution or any State law. The
legislation did not prohibit what is specifically permitted by
the Constitution or State law or permit what is specifically
forbidden by the Constitution or State law. Further, the Court
found that the State's silence on this issue did not establish a
conflict.
The Court found that the term limit legislation did not
constitute an arbitrary exclusion from office but instead
established a qualification for office having a rational basis.
Citing Golden v Clark, 76 NY2d 618, 627 (1990), the Court found
that the proposed local law was intended to broaden opportunities
for political and public participation in government, to reduce
the opportunities for corruption, and as a result increase
citizens' confidence in the integrity and effectiveness of their
government. Also, the Court found that while public employees in
New York have rights to continue holding their positions under
the Civil Service Law, public officers have been given no such
protection.
In Roth, the Court found no violation of Article I, § 1 of
the New York Constitution, providing that no member of the State
may be disenfranchised or deprived of any of the rights or
privileges secured to a citizen. The Court reasoned that the
proposed local law would have only an incidental effect on the
right to vote; would be neutrally applied to all political
parties; would in no way violate the constitutional rule of one
person one vote; and generally would not disenfranchise or
infringe upon rights of association because these rights do not
guarantee a particular candidate.
Thus, in Roth the authority of a local government to enact
term limit legislation was confirmed against a broad-based attack
on State statutory and constitutional grounds.
We conclude that a local government is authorized to enact a
local law limiting the number of consecutive terms that an
elected officer may serve. Such a local law is not subject to a
referendum.
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,

VICTORIA A. GRAFFEO
Solicitor General