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Hoerger v. Spota

Court of Appeals of New York

August 22, 2013

In the Matter of Maureen S. HOERGER et al., Appellants,
Thomas J. SPOTA III, Respondent, et al., Respondent.

Page 550

[975 N.Y.S.2d 378] Martin E. Connor, Brooklyn, for appellants.

Harris Beach PLLC, Uniondale (Thomas J. Garry of counsel), and Kevin G. Snover, North Babylon, for respondent.

Kathleen M. Rice, District Attorney, Kew Gardens (John M. Ryan and Edward D. Saslaw of counsel), Steven A. Bender, White Plains, Itamar J. Yeger, Brooklyn, and Morrie I. Kleinbart, Staten Island, for District Attorneys Association of the State of New York, amicus curiae.

Page 551



[997 N.E.2d 1230] At issue in this appeal is the validity of Suffolk County's term limit law pertaining to the office of district attorney. Petitioners allege that, as a consequence of such local law, respondent District Attorney Thomas J. Spota III is ineligible to hold the office he seeks. We conclude that the County is without the power to regulate the number of terms the district attorney may serve, and therefore we affirm the order finding the designating petitions valid.

The Suffolk County Legislature imposed term limits on county officials, including the district attorney ( see Local Law No. 27-1993 of the County of Suffolk). After approval by public referendum, the measure was added to the Suffolk County Charter, which specifies that " [n]o person shall serve as District Attorney for more than 12 consecutive years" (art. XIX, § C19-1[B] ). Respondent, who was elected district attorney in 2001, will have served three full four-year terms (or 12 consecutive years) as of December 31, 2013. Spota, however, has been designated as a candidate in the upcoming primary election for the Democratic, Republican, Independence and Conservative Parties.

Petitioner Raymond G. Perini is a candidate for district attorney in the Republican Party primary. Petitioners-objectors

Page 552

are registered voters who filed objections to respondent's designating petitions with the Suffolk County Board of Elections. They commenced this special proceeding seeking to invalidate the designating petitions. Supreme Court denied the petition and dismissed the proceeding.

The Appellate Division affirmed, finding that the authority to enact a restriction on the number of consecutive years a person can serve as district attorney rests with the State, rather than the County ( see 109 A.D.3d 564, 970 N.Y.S.2d 592 [2d Dept.2013] ). Two Justices dissented and would have reversed and granted the petition to invalidate the designating petitions. The dissent would have found that the State has neither expressly nor impliedly preempted the issue of the number of consecutive terms that could be served by an individual district attorney and that the County was therefore free to legislate the matter. Petitioners appeal as of right, pursuant to CPLR 5601(a).

The State Constitution requires that " [i]n each county a district attorney shall [975 N.Y.S.2d 379] be chosen by the electors once in every three or four years as the legislature shall direct" (N.Y. Const., art. XIII, § 13[a] ). For counties outside of New York City, the state legislature has determined that the term of office shall be four years ( see County Law § 400[1-a]; Matter of Enders v. Rossi, 45 A.D.2d 447, 449, 358 N.Y.S.2d 782 [4th Dept.1974], affd. 34 N.Y.2d 966, 360 N.Y.S.2d 408, 318 N.E.2d 601 [1974] [" We find no indication of any intent in the Constitution or in the legislative action thereunder to permit local county governments to establish disparate, unbridled terms in the office( ) of ... district attorney" ] ). In addition, a district attorney is subject to removal from office, not by county officials, but by the Governor ( see N.Y. Const., art. XIII, § 13[b] ). The Governor is likewise vested with the authority to fill a vacancy existing in that office ( see [997 N.E.2d 1231] Carey v. Oswego County Legislature, 91 A.D.2d 62, 458 N.Y.S.2d 283 [3d Dept.1983], affd. 59 N.Y.2d 847, 466 N.Y.S.2d 312, 453 N.E.2d 541 [1983] ).

We have therefore recognized that " a [d]istrict [a]ttorney is a constitutional officer chosen by the electors of a county" ( Matter of Soares v. Herrick, 20 N.Y.3d 139, 144, 957 N.Y.S.2d 664, 981 N.E.2d 260 [2012] [internal quotation marks and citations omitted] ). In other words, although the district attorney may be an officer serving a county, the office and its holder clearly implicate state concerns ( see Matter of Kelley v. McGee, 57 N.Y.2d 522, 457 N.Y.S.2d 434, 443 N.E.2d 908 [1982] ). For example, there is a strong state interest in establishing adequate salaries for district attorneys, as the representatives of the ...

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