An appeals court panel in a split ruling said Friday that Suffolk County District Attorney Thomas J. Spota may seek a fourth term, upholding a lower-court decision that said the county's term limit law cannot apply to the office.
To reach its 3-2 decision, the four-judge Appellate Division panel in Brooklyn had to add a fifth judge, Cheryl E. Chambers, to break a 2-2 tie.
The suit by GOP primary challenger Ray Perini to knock Spota off the ballot will be argued before the state's highest court, the Court of Appeals, on Wednesday, attorneys for both sides said.
State Supreme Court Justice Ralph Gazzillo had ruled that the county's 12-year term limit law cannot apply to the district attorney, sheriff and county clerk because the offices were created by the state constitution.
"The county's attempt to place a term limit on the office of District Attorney is impermissible," judges Daniel Angiolillo, Jeffrey Cohen and Chambers ruled. "Since the office of District Attorney is not a local office . . . the county has no authority to place restrictions on the district attorney's term of office."
The majority said the constitution and state "so expansively and comprehensively regulate the office, the county government's ability to place restrictions on a District Attorney's term of office has been pre-empted."
In a dissent, justices Mark Dillon and Thomas Dickerson stated, "There is no state constitution provision that specifically prohibits . . . or even addresses any limitation on the number of consecutive terms . . . individuals may serve as district attorney."
Backers of Spota and Perini said they were encouraged by the split ruling. "The Appellate Division recognized what we knew all along -- that the district attorney is a state officer and cannot be term-limited," said Suffolk Democratic chairman Richard Schaffer, who backs Spota.
Perini said that the "issue is so closely contested on the law that four very qualified and esteemed judges differed, so they had to bring in a tiebreaker."
Perini criticized political leaders for cross-endorsing Spota without fully vetting whether he is eligible to run. Spota, a Democrat, is endorsed by the Democratic, Republican, Conservative and Independence parties.