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Judges' fastballs put lawyers on the defensive in Spota term-limits case

ALBANY — Like a baseball pitching machine set on high speed, judges on New York’s top court Wednesday peppered lawyers with question after question over whether Suffolk County’s term limits law bars District Attorney Thomas Spota from running for a fourth term.

The seven-judge panel threw lots of fastballs in a 29-minute session that had attorneys for Spota and GOP challenger Ray Perini backpedaling at times. In the end, the judges seem to hone in on one essential legal question: Is the district attorney a “state constitutional officer” rather than a local official, and, if so, isn’t the county prohibited from imposing any qualifications on the office?

Further, the judges pondered whether the state constitution’s silence on terms of office for district attorneys means that counties are free to set their own limits.

Spota, a Democrat, has been endorsed by the Democratic, Republican, Conservative and Independence parties. GOP challenger Ray Perini, a criminal attorney, is trying to knock Spota off the ballot. If he fails, the two would face off in the Sept. 10 Republican primary.

Spota wasn’t on hand for the arguments, but the challenger was. Perini made no predictions about the court case, but said his lawsuit will help him even if the judges favor Spota.

“I think I’ll win the primary,” Perini said on the courtroom steps, where the temperature outside was almost as hot as the back-and-forth inside. “People want a choice (for district attorney). I think there is a concern in the county about not having a choice.”

Tom Garry, Spota’s lawyer, took a breather in a side room afterward. He said he was “confident” that the judges recognized legal precedents that a district attorney is a state constitutional officer whose term can’t be set by a county legislature.

Just seconds into the proceeding, the judges launched into an onslaught of questions that had Garry and Perini’s lawyer, former state senator Martin Connor, on the defensive.

 “When the State Legislature wants to restrict something, they do so, and when they don’t, can’t the county do what it wants?” Judge Robert Smith asked Garry.

 Before Garry could fully respond, Chief Judge Jonathan Lippman fired another inquiry: “The issue of silence can be argued both ways, can’t it? Does this case turn on whether silence favors your argument or not?”

Garry replied that silence favored his argument: district attorneys are responsible for enforcing state laws and, therefore, only the state can restrict their terms.

“I don’t think you’ve really addressed the question of why it matters, from a state interest, why counties” can’t set term limits, said Judge Jenny Rivera.

Not answering directly, Garry said it was in the state’s interest that the penal code is enforced equally across the state.

On the other side, judges tried to pin Connor on New York City’s term limits law — which impacted an array of offices, but omitted district attorney. Wasn’t that an indication that local boards can’t restrict DA terms, they asked.

“That was a political choice made by the people who amended the city charter,” Connor replied.

But what about county-court judges? Counties can’t restrict their terms, Judge Susan Read noted.

 “Judges are state officers and not local officials ever,” Connor said, adding that district attorneys functioned as both local and state officials. Connor also said it “doesn’t matter” if different counties have term limits for district attorney or not, because that doesn’t impact “the powers of the office or the function of the office.”

The court is expected to return a decision quickly. If the county term limit law applies and Spota is kicked off the ballot, attorneys on both sides said political party committees would have to quickly nominate another candidate.


 

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