Opn. No.

William E. Seward, Esq. Village Attorney, Rockville Centre

You have asked whether an acting village justice may hold over in office beyond the expiration of his term until his successor is chosen.

The Constitution provides for the Legislature to determine the number, classification and duties of judges in village courts and the terms, method of selection and method of filling vacancies for these offices (NY Const, Art VI, § 17, [d]). Under section 3-301(2)(a) of the Village Law, if a village establishes only one office of village justice, it must also have an acting justice to serve when requested by the village justice or during the village justice's absence or inability to serve (1976 Op Atty Gen [Inf] 141). The acting village justice is appointed by the mayor with the approval of the board of trustees for a term of one year (ibid., Village Law, §§ 3-301[3], 3-302[4]).

The Public Officers Law provides that all public officers "except ajudicial officer, notary public, a commissioner of deeds and an officer whose term is fixed by the constitution * * * shall * * * hold over and continue to discharge the duties of his office, after the expiration of the term for which he shall have been chosen, until his successor shall be chosen and qualified" (emphasis supplied) (Public Officers Law, §5). Under this provision an acting village justice may not hold over (1977 Op Atty Gen 151; see 1897 Report of the Attorney General, p 232).

A village with but one village justice is required to have an acting village justice (Village Law, § 3-301[2][a]). The failure to appoint an acting justice places your village in violation of this requirement of law.

We conclude that an acting village justice may not hold over beyond the expiration of his term of office until his successor is chosen and has qualified.

The Attorney General renders formal opinions only to officers and departments of the State government. This perforce is an informal and unofficial expression of views of this office.