When a New York town creates a third town justice position, does the town board appoint someone to fill it right away, or does the seat have to wait for a general election?

Plain-English summary

The Town of Orangetown was considering creating a third town justice position and wanted to know whether the town board could appoint the first person to fill it immediately or whether voters had to elect that person at a general election. The AG said election: the first occupant of a newly created town justice position must be elected at the next general town election, with the new justice taking office on January 1 following the election.

The AG's reasoning combined a statute and a constitutional provision. Town Law § 20(1)(i) authorized the town board, by resolution subject to permissive referendum, to provide that the town would have three town justices. Once the resolution was effective, the voters were to elect a town justice at the "succeeding general election." The AG read that as the next biennial town election (the general town election), not as a separate special election. The new justice took office on the January 1 following that election, for a four-year term.

The constitutional layer was Article VI, section 17(d) of the New York Constitution, which says town court justices "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." The AG read this to mean that the initial filling of a newly created town justice seat is constitutionally an election event. The town board's interim-appointment power applies to vacancies that arise during a term, not to the first occupancy of a brand-new seat.

Currency note

This opinion was issued in 1996. 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 can't the town board just appoint someone to start filling the new role?
Because the Constitution makes town justices an elective office: voters elect them for four-year terms beginning January 1 after the election. The board can fill mid-term vacancies because someone was already elected to that term and then left. But creating a brand-new seat is not a vacancy; it is the start of a new term that has not yet had an elected occupant. The Constitution requires the voters to choose that first person.

What did Town Law § 20(1)(i) require procedurally?
At the time of the opinion, the town board had to adopt a resolution at least 60 days before any general or special election. The resolution was subject to permissive referendum, meaning the public could force a vote on it. If the resolution stood (either no referendum was triggered or the referendum approved it), the voters then elected the third justice at the "succeeding general election."

Which election counts as "the succeeding general election"?
The AG read this as the next biennial town election after the one occurring after the 60-day period. The opinion offers a worked example: a resolution adopted shortly before March 25, 1996 would result in an election in November 1997, with the new justice taking office on January 1, 1998.

What happens if a third town justice is established and there is then a vacancy later in the term?
The opinion notes that mid-term vacancies are different. The town board can make an interim appointment to a vacancy that arises during the term, with the voters then acting at the next election to fill the remainder. That is the regular vacancy-filling rule. It is not the rule for filling the seat in the first place.

Does this rule apply to other elective town offices being newly created?
The opinion is specific to town justices because it cites the constitutional provision about elective town courts. The same general principle (election for a newly created elective office; appointment only for mid-term vacancies) tends to apply to other constitutionally elective offices, but each office has to be analyzed under the statutes and constitutional provisions specific to it.

Background and statutory framework

The two provisions doing the work in the opinion:

Town Law § 20(1)(i) authorized the town board to provide for three town justices by resolution adopted at least 60 days before a general or special election. The resolution was subject to permissive referendum. The statute then directed that the electors "shall elect at the succeeding general election a town justice who shall take office for a term of four years beginning on the first day of January next succeeding such biennial town election."

N.Y. Const. art. VI, § 17(d) provided that town court justices "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."

The AG read these together and concluded that the Town Law § 20(1)(i) language was deliberately drafted to comply with the constitutional requirement, and that an interim appointment by the town board to fill the newly created seat would violate the Constitution.

The opinion contrasts the initial filling of a newly created elective office (election required) with the filling of a mid-term vacancy (interim appointment by the town board, followed by election to complete the term). The constitutional requirement attaches to the initial occupancy of the seat.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_96-14_pw.pdf

Original opinion text

OPINIONS OF THE ATTORNEY GENERAL

Opn. No. 96-14
NY CONST ART 6 § 17(d); TOWN LAW § 20(1)(i).

Upon establishment of the office of third town justice in the Town of Orangetown, the first occupant of the position is chosen by the electorate at a general town election.

March 25, 1996

Wayne A. Gavioli, Esq.
Town Attorney
Town of Orangetown
Town Hall
Orangeburg, NY 10962

Informal Opinion No. 96-14

Dear Mr. Gavioli:

You have asked whether in the Town of Orangetown, upon creation of the office of third town justice, the town board immediately may appoint a person to fill that position or whether the electorate must be given that responsibility at a general election with the winner taking office on January 1.

Under section 20(1)(i) of the Town Law, the town board of the Town of Orangetown at least 60 days prior to any general or special election may adopt a resolution, subject to a permissive referendum, providing that the town will have three town justices. Upon the adoption of such a resolution or if a referendum is held and a majority of the voters vote for the proposition to establish a third town justice, the electors of such town shall elect at the succeeding general election a town justice who shall take office for a term of four years beginning on the first day of January next succeeding such biennial town election.

In our view, following establishment of the position of third town justice, the first incumbent is to be elected at the succeeding general election and will take office on the 1st day of January after that election. The statutory language "succeeding general election" is a reference to the general election that follows the general or special election occurring after the 60-day period. For example, upon the enactment of a resolution today to establish the position of third town justice, an election to fill that position initially would occur in November of 1997 at the biennial town election (the general election).

It is apparent that the statute has been drafted to comply with Article VI, section 17(d) of the Constitution which provides that the 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". An appointment by the town board initially to fill this position once it has been established would violate the provisions of the Constitution governing both term and method of selection. The establishment of the position and the initial term of office are subject to this constitutional provision and are distinguishable from the filling of a vacancy that might occur at some time during the term. Under the latter circumstances, the town board can make an interim appointment followed by action by the voters. Because this is the initiation of the office after creation, the town board cannot treat their appointment as the filling of a vacancy.

We conclude that upon establishment of the office of third town justice in the Town of Orangetown, the first occupant of the position is chosen by the electorate at a general town 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