Can a New York local law take effect for the election held the same day the voters approve it, even though the law won't be filed with the Secretary of State until weeks later?

Plain-English summary

Middletown's Common Council passed Local Law No. 4 of 1997 to restructure terms of city office: increase the Mayor's and Alderman-at-Large's terms from two years to four (Aldermen stay at two), and limit officials to two consecutive four-year terms for Mayor and Alderman-at-Large and four consecutive two-year terms for Aldermen (eight years total either way). Because the change affected the term of an elective office, it was subject to a mandatory referendum.

The timing was tight. Common Council passed the law September 2, 1997; the Mayor approved September 12; public referendum approved November 4; filed with the Secretary of State December 22. Same-day November 4 election, candidates ran for offices whose terms would change if the referendum passed.

Two doubts came up. First, Municipal Home Rule Law § 27(3) says a local law "shall not become effective before it is filed in the office of the secretary of state." If the law was not filed until December 22, how could it affect the November 4 election? Second, did it matter that voters cast ballots for candidates without knowing whether the law would pass and what the elected terms would actually be?

The AG said the law operated as intended on the November 4 election. Two reasons.

Operative date vs. effective date. New York's case law distinguishes between when a law becomes operative (when its substantive rules begin to govern conduct) and when it becomes effective (when it formally has the force of law upon filing). Hehl v Gross, 35 AD2d 570 (2d Dept 1970), held that the Legislature can prescribe an operative date before or after the effective date. Grant v Bd. of Elections of the County of Rockland, 98 Misc 2d 644 (Sup Ct Rockland County 1978), applied the distinction to a local law making the November 8, 1977 election operative even though the law was filed November 14, 1977.

Voter knowledge. It is not a constitutional problem that voters did not know the precise term length of the candidates they were voting for, because the referendum was on the ballot and voters knew that approval would change the terms. Grant and Education Law § 2610(4) support that voters can vote in an election whose terms depend on a referendum on the same ballot.

The AG distinguished People ex rel Smith v Weeks and People ex rel. Eldred v Palmer, where the Court of Appeals struck down laws that lengthened the terms of already elected officials. Those laws looked like the legislature was appointing officers without voter input. Middletown's law did the opposite: voters affirmatively approved the longer terms in the same election as the candidates' selection, so the principle of voter consent was preserved.

Currency note

This opinion was issued in 1999. 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

What is the difference between "effective date" and "operative date"?

Effective date is the moment a law has the force of law (for a local law, when it is filed with the Secretary of State per Municipal Home Rule Law § 27(3)). Operative date is the moment the substantive rules in the law actually start governing conduct. The two are usually the same, but a legislative body can write a law that operates earlier (retrospectively) or later (prospectively) than the effective date.

Can any local law's operative date precede its effective date?

In principle yes, but there are limits. Constitutional concerns about ex post facto laws apply to criminal statutes. For civil and structural laws (like term-of-office changes adopted in tandem with the election that selects the officeholders), New York's case law permits the legislature to set an operative date before the effective date.

Why isn't it improper to elect candidates without knowing their term length?

Because the referendum on the term change is on the same ballot. Voters are voting for the candidate and the structure of the office at the same time. The AG and the Grant court treated that as essentially democratic: voters know the term change is being proposed, they know the candidates, and they vote on both.

How do the older Court of Appeals cases (Weeks, Eldred) fit in?

Those cases involved laws that extended the terms of officials who were already in office, with no voter approval. The Court of Appeals treated those as effectively legislative appointment without an election, which violated the elective principle. Middletown's law is different because the new terms were tied to a future election where voters approved both the law and the new officers.

Can term limits themselves be imposed by local law?

Yes. The AG, citing Op Atty Gen (Inf) No. 95-29, confirmed local governments may enact term-limit laws. The Middletown law was subject to mandatory referendum because it changed the term of an elective office, but term limits themselves can be enacted by local government.

Background and statutory framework

Municipal Home Rule Law § 27. Section 27(1) lays out filing and effective-date rules for local laws. § 27(3) is the rule that a local law does not become effective before filing with the Secretary of State.

Municipal Home Rule Law § 23. Section 23(2)(e) requires a mandatory referendum for local laws that change the term of an elective office.

Education Law § 2610(4). Provides an analogous statutory model: school board members can be elected at the same time the voters approve changes to the school district's structure or to board members' terms.

Case law line. Hehl v Gross and Grant v Bd. of Elections establish that the operative date of a local law can precede its effective date. The older Court of Appeals decisions (Weeks, Eldred, Bull) limit that principle in the specific context of laws that extend the terms of already-elected officials without voter input.

Citations

• Municipal Home Rule Law § 23(2)(e) (mandatory referendum for change to term of elective office).
• Municipal Home Rule Law § 27(3) (local law becomes effective when filed with Secretary of State).
• Education Law § 2610(4) (school board election with simultaneous structural change).
• Hehl v Gross, 35 AD2d 570 (2d Dept 1970) (operative date may precede effective date).
• Grant v Bd. of Elections of the County of Rockland, 98 Misc 2d 644 (Sup Ct Rockland County 1978) (local law operating on same-day election it was approved).
• People ex rel Smith v Weeks, 176 NY 194 (1903); People ex rel. Eldred v Palmer, 154 NY 133 (1897); People ex rel. Fowler v Bull, 46 NY 57 (1871) (older Court of Appeals cases on term extensions for sitting officers).
• Op Atty Gen (Inf) No. 95-29 (local governments may enact term-limit laws).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_99-12_pw.pdf

Original opinion text

EDUCATION LAW § 2610(4); MUNICIPAL HOME RULE LAW §§ 23(2)(e), 27; CITY OF MIDDLETOWN LOCAL LAW NO. 4. The operative date of Local Law No. 4 of 1997 of the City of Middletown is valid and the Mayor, Alderman-at-Large and Aldermen took office on January 1, 1998 in accordance with the provisions of the Local Law. April 8, 1999

Richard J. Guertin, Esq.
Corporation Counsel
City of Middletown
16 James Street, Box 3
Middletown, NY 10940

Informal Opinion
No. 99-12

Dear Mr. Guertin:
You have asked whether City of Middletown Local Law No. 4 of 1997, amending the Charter, became operative in the election of November 4, 1997, giving the Mayor and the Alderman-at-Large four-year terms commencing on January 1, 1998, subject to consecutive term limitations equal to eight years beginning with the commencement of their terms on January 1, 1998. Specifically, your legal question is whether the Local Law could become operative prior to its statutory effective date of December 22, 1997, when it was filed with the Secretary of State. Also, we consider whether the Local Law could become operative as of the November 4, 1997 election, during which the referendum to approve the Local Law was held. Because of the pendency of the referendum on the Local Law, the voters, in casting their ballots at that election for candidates for the offices of Mayor and Alderman-at-Large, did not know the terms of the offices. The question is whether this is legally significant. Prior to passage of the Local Law, the Charter provided for the Mayor, Alderman-at-Large and Aldermen to serve for two-year terms with a limit of two consecutive terms. The purpose of the Local Law is to prevent the possibility of a complete turnover of elected officials after only four years, resulting in complete loss of knowledge and experience. Local Law No. 4 thus is intended to create a system of staggered terms: The terms of the Mayor and Alderman-at-Large would increase to four years, while the two-year term of the Aldermen would be retained. The Local Law also provides for limits of two consecutive terms for the Mayor and Alderman-at-Large and four consecutive terms for the Aldermen, all for a total of eight years. Local Law No. 4 of 1997 was passed by the Common Council on September 2, 1997. A public hearing was held on the Local Law on September 4, 1997 and the public also was notified that the full text of the Local Law was available for viewing in the Office of the Common Council. Local Law No. 4 was approved by the Mayor on September 12, 1997. The Local Law was subject to mandatory referendum and was approved by the voters on November 4, 1997. The Local Law subsequently was filed in the Office of Secretary of State on December 22, 1997. We note that Local Law No. 4 was subject to a mandatory referendum because it changed the term of an elective office. Municipal Home Rule Law § 23(2)(e). Also, we have opined that local governments are authorized to enact local laws limiting the number of consecutive terms that an elected officer may serve. Op Atty Gen (Inf) No. 95-29. Returning to the first question, you have asked whether there is any legal prohibition on the Local Law becoming operative as provided in its provisions. Local Law No. 4, by its terms, indicates clearly that it was to become operative in the November 4, 1997 election and for the terms of office beginning on January 1, 1998. Local Law No. 4 of 1997, §§ 3, 4. It appears that your inquiry is prompted by the provisions of section 27 of the Municipal Home Rule Law. Under section 27(3), a local law "shall not become effective before it is filed in the office of the secretary of state." There is a distinction, however, between the effective date and the operative date of a Local Law. Hehl v Gross, 35 AD2d 570 (2d Dept 1970). A distinction has long existed between the effective date of a statute and its operative date. A legislative body may prescribe that a law shall be operative at a time either before or after its effective date. Hehl, at 571. In Grant v Bd. of Elections of the County of Rockland, 98 Misc 2d 644 (Sup Ct Rockland County 1978), a comparable local law provided for the staggering of terms of county legislators by providing that in the November 1977 election the nine candidates receiving the most votes would be elected to four-year terms and the other nine successful candidates would be elected for two-year terms. Id. In subsequent elections, all candidates would run for four-year terms. Id. Since there was a temporary change in the terms of elective offices, the local law was subject to mandatory referendum. Id. The local law was approved by the voters on November 8, 1977 and subsequently was filed with the Secretary of State on November 14, 1977. Id. The local law provided that it would be operative in the November 8, 1977 election for the terms beginning on January 1, 1978. The plaintiffs argued to no avail that the local law could not be binding on legislators elected on November 8, 1977 because it did not take effect until subsequently filed with the Secretary of State. Id., at 646. The court decided that the legislature had the right to make the local law operative before or after its effective date. Id., at 647. As to the second inquiry, the fact that the voters did not know, when they cast their ballots for a specific candidate, the term of office of that candidate if elected Mayor or Alderman-at-Large is not legally significant. See, e.g., Grant, supra. See also, Education Law § 2610(4), relating to the election of school board members. They were aware at the time of the election that Local Law No. 4, if approved, would increase the terms of the Mayor and Alderman-at-Large. The decisions of the Court of Appeals in People ex rel Smith v Weeks, 176 NY 194 (1903), and People ex rel. Eldred v Palmer, 154 NY 133 (1897), are distinguishable. In those cases, laws were passed during the terms of elected officers to lengthen those terms. The laws were viewed as "subversive of the principles of the elective system . . . [and] in effect an attempt on the part of the legislature to appoint to office
. . ., without the concurrence of the electors." Eldred, 154 NY at 139, citing, People ex rel. Fowler v Bull, 46 NY 57 (1871). Under Local Law No. 4, by contrast, when the electors cast their ballots at the November 8, 1997 election, they knew that if the Local Law were to be approved, the local officials would be elected and take office in accordance with its provisions. We conclude that the operative date of Local Law No. 4 of 1997 of the City of Middletown is valid and the Mayor, Alderman-at-Large and Aldermen took office on January 1, 1998 in accordance with the provisions of the Local Law. 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