What happens when a town justice's term expires but no candidate was on the ballot to replace them? Can the town board appoint someone, or is a special election required?

Plain-English summary

The Town Attorney for Lowville asked what to do when a town justice's term expired and no candidate had been placed on the ballot to succeed them. The town board wanted to know whether it could simply appoint someone, as it normally can for town vacancies. The AG concluded that the standard town-board appointment authority did not apply.

The reasoning rests on a distinction between two kinds of vacancies. Town Law § 64(5) lets the town board fill vacancies in town offices by appointment, and the appointee serves until January 1 following the next annual election where the vacancy can be filled. That works when a vacancy occurs because of death, resignation, or similar mid-term events.

A different rule, Public Officers Law § 42(3), governs vacancies that arise from a "failure to elect" at an election where the office was authorized to be filled. When the term of an incumbent expires and no successor is elected because the office was not on the ballot, that is a "failure to elect" within the meaning of § 42(3). In that case, only the Governor can call a special election, and that decision is discretionary.

The AG also addressed the term length. Article 6, § 17(d) of the New York Constitution sets the term of a town justice at "four years from and including the first day of January next after their election." Whether elected at a general or special election, the justice's term would begin January 1 of the year following the election and run four years. Matter of Munnelly v. Newkirk (1999) confirms that the four-year term is constitutionally mandated regardless of whether the election was for a vacancy or a regular term.

A practical note: Public Officers Law § 5 prevents a judicial officer from holding over after expiration. The town's other (second) justice could continue presiding over town cases in the meantime.

Currency note

This opinion was issued in 2013. 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 couldn't the town board just appoint someone?

Because Town Law § 64(5) authorizes appointments to fill vacancies, but the AG concluded that a vacancy created by not putting an office on the ballot is not the kind of vacancy § 64(5) addresses. A "failure to elect" is governed instead by Public Officers Law § 42(3), which gives only the Governor the authority to call a special election.

Why does the distinction matter?

Two policy reasons the AG flagged. First, if a town board could fill a vacancy by appointment whenever an office was inadvertently left off the ballot, mistakes (and possibly intentional omissions) might become more frequent. Second, the elected character of the office is preserved by requiring an actual election rather than a board appointment.

What if the Governor doesn't call a special election?

The vacancy persists until the next general election. In the meantime, if the town has a second justice (as Lowville did), that justice can preside over all town cases. If the town has only one justice, options would include relying on a neighboring town's justice or an emergency arrangement, neither of which the opinion addresses directly.

When does the new justice's term start?

January 1 of the year following election, whether elected at the special or general election. The term is constitutionally fixed at four years from that date. N.Y. Const. Art. 6, § 17(d).

Could a town justice "hold over" past their term?

No. Public Officers Law § 5 prevents a judicial officer from holding over after term expiration. The position is literally vacant the moment the term ends.

Was this situation common?

The opinion notes that the failure to include the position on the ballot in this case was "inadvertent," suggesting it was not a standard occurrence. But the AG's policy concern about creating an appointment incentive suggests the issue could recur.

Background and statutory framework

New York's general statute on town vacancies, Town Law § 64(5), authorizes the town board to fill vacancies by appointment. For elective positions, the appointee serves "until January 1 following the first annual election at which the vacancy can be filled." This is the standard mechanism for mid-term vacancies.

The "failure to elect" framework in Public Officers Law § 42(3) is a separate path. When an office "authorized to be filled" at a general or special election is not actually filled, the Governor "may in his or her discretion make proclamation of a special election to fill such office." The statute applies to all elective offices except governor and lieutenant-governor.

The constitutional term-setting provision, N.Y. Const. Art. 6, § 17(d), specifies that town justices serve "for terms of four years from and including the first day of January next after their election." The provision controls regardless of whether the election was a special election or a general election. Matter of Munnelly v. Newkirk, 262 A.D.2d 781 (3d Dep't 1999), interprets this as fixing the four-year term.

Public Officers Law § 5 prevents a judicial officer from holding over past the expiration of the term, so the position becomes literally vacant at term end. Earlier AG informal authority on related questions: Op. Att'y Gen. (Inf.) No. 90-76 (eliminated position of town justice can only be restored to commence on January 1).

Citations

The vacancy framework: Town Law § 64(5) (general appointment authority) and Public Officers Law § 42(3) (failure to elect). The hold-over prohibition: Public Officers Law § 5. The constitutional term: N.Y. Const. Art. 6, § 17(d), as construed in Matter of Munnelly v. Newkirk, 262 A.D.2d 781 (3d Dep't 1999).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/2013-4_pw.pdf

Original opinion text

Town Law § 64(5); Public Officers Law § 42(3); Constitution Article 6, § 17(d)

A vacancy created by not placing the position of town justice on the ballot cannot be filled by town board appointment. It can be filled before the November 2013 general election only by special election if the Governor chooses to call for one. The term of the justice will commence January 1, 2014 in either case.

June 17, 2013
Raymond A. Meier
Town Attorney
Town of Lowville
Bond, Schoeneck & King, PLLC
501 Main Street
Utica, New York 13501-1245

Informal Opinion
No. 2013-4

Dear Mr. Meier:

You have requested an opinion relating to a vacancy in the office of town justice. The term of the town justice expired on December 31, 2012 but the office was not included on the November ballot. The office thus currently is vacant. You have asked several related questions about filling the vacancy and the term of the new justice. As explained below, we are of the opinion that the only way the vacancy can be filled before the November 2013 general election is by special election called by the Governor, who has discretion to decide whether and when to do so. We are of the further opinion that the term of the new justice will be four years, beginning January 1, 2014, whether elected at the general or a special election.

In general, when there is a vacancy in a town office, the town board is authorized to appoint a qualified person to fill the vacancy. Town Law § 64(5). The term of such an appointment is provided by that statute. When the vacancy is in an elective position, an appointee filling the vacancy serves until January 1 following the first annual election at which the vacancy can be filled. Id. Thus, if Town Law § 64(5) were applicable in this case, a person appointed between now and the election day in November 2013 would serve until January 1, 2014.

Under the particular facts here, however, we are of the opinion that Town Law § 64(5) does not apply, and instead the filling of the vacancy is governed by Public Officers Law § 42(3), and can be accomplished only by a special election called by the Governor. That statute provides that, "[u]pon the failure to elect to any office, except that of governor or lieutenant-governor, at a general or special election, at which such office is authorized to be filled . . . the governor may in his or her discretion make proclamation of a special election to fill such office."

Although we have found no direct precedent applying this statute to a situation like the one present here, we believe that the plain language of Public Officers Law § 42(3) makes it applicable. The vacancy here was created when the term of a sitting justice expired, no candidate for the office had been placed on the ballot, and consequently the electors of the town failed to elect anyone to the office of town justice at a general election at which such office was authorized to be filled, precisely the situation described in Public Officers Law § 42(3). If a vacancy in a town elective office occurs for another reason, such as the death or resignation of the incumbent, the town board may fill the vacancy by appointment under Town Law § 64(5). But if the vacancy occurs because an election was held and the voters failed to elect anyone to the office, then Public Officers Law § 42(3) controls.

Moreover, this result makes sense. Although we are advised that the failure to include the position on the ballot in this case was inadvertent, such mistakes might become more frequent and even deliberate if the result were to give the town board the power to fill the vacancy by appointment instead of election. We therefore are of the opinion that the vacancy cannot be filled by town board appointment but can be filled before the November 2013 general election only by special election if the Governor chooses to call for one. If he does, he will establish the date of the special election. Public Officers Law § 42(3).

If a town justice is elected in a special election called by the Governor, the beginning and end of the term is governed by Article 6, § 17(d) of the Constitution. That provision states 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." That provision on its face specifies the precise term of any justice chosen by the town electors, whether in a general or special election. Accordingly, we are of the opinion that the term of the next town justice, whether elected at a special election called at the Governor's discretion before November 2013 or at the general election in November 2013, will begin on January 1, 2014 and run for four years from that time. See Matter of Munnelly v. Newkirk, 262 A.D.2d 781 (3d Dep't 1999); see also Op. Att'y Gen. (Inf.) No. 90-76.

The Attorney General issues formal opinions only to officers and departments of state government. Thus, this is an informal opinion rendered to assist you in advising the municipality you represent.

Very truly yours,

KATHRYN SHEINGOLD
Assistant Solicitor General
in Charge of Opinions

Footnote 1: A judicial officer cannot hold over after the expiration of his term, and thus the position is literally vacant as well as vacant for purpose of choosing a successor. Public Officers Law § 5. You have advised that the Town has a second justice, who now is presiding over all town cases.