IN THE MATTER OF JAMES T. CURRY, APPELLANT, v. MORRISON J. HOSLEY JR., AND
BOARD OF ELECTIONS OF THE COUNTY OF HAMILTON, RESPONDENTS.
86 N.Y.2d 470, 657 N.E.2d 1311, 634 N.Y.S.2d 128
October 26, 1995
3 No. 333 (1995 NY Int. 229)
Decided October 26, 1995
_________________________________________________________________
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Alan J. Pierce, for Appellant.
Robert J. Muller, for Respondents.
New York State District Attorneys Association, amicus curiae.
PER CURIAM:
Petitioner (James Curry), the Republican Party candidate, instituted
this Election Law § 16-102 proceeding to remove respondent (Morrison
Hosley) as a candidate on the November 7, 1995 ballot for the office
of Hamilton County District Attorney. The sole issue before us is
whether New York law permits Hosley, who is not an attorney, to serve
as the District Attorney. We conclude that the legal nature of the
important public responsibilities entrusted to the District Attorneys
of this State requires that such individuals be lawyers admitted to
practice.
Unique historical circumstances have led to this appeal. In counties
throughout New York State, the District Attorney is an attorney and
indeed the District Attorney of Hamilton County--a rural upstate
county with a population of approximately 5,000-- has for the last
three decades been an attorney. Petitioner himself (the incumbent) is
an attorney. For more than one hundred years between the 1830's and
1960's, however, the office of District Attorney of Hamilton County
was ordinarily held by non-lawyers. Indeed, the last time the Court
considered the legal issue presented was in 1963, also in the context
of an election appeal challenging a non-attorney candidate for that
office (Matter of Drake v McAfee, n.o.r. (Sup Ct Hamilton County,
August 17, 1963), affd without opn 19 AD2d 784 (August 30, 1963), affd
without opn 13 NY2d 878 (August 30, 1963)).
Notwithstanding this uncommon state of affairs in Hamilton County, it
cannot be disputed that "the District Attorney is a constitutional
officer chosen by the electors of a county" (Matter of Schumer v
SNIPPETS:
This opinion is uncorrected and subject to revision before publication in the New York
Petitioner, the Republican Party candidate, instituted this Election Law § 16-102 proceeding
We conclude that the legal nature of the important public responsibilities entrusted to the
Indeed, the last time the Court considered the legal issue presented was in 1963, also in the
Notwithstanding this uncommon state of affairs in Hamilton County, it cannot be disputed that
The Constitution speaks of elections not for the office of "county prosecutor" or "government
The Constitution further states that "ny district attorney who shall fail * * * to prosecute
Moving beyond the language of the Constitution, our conclusion that respondent, as a
Other statutes provide that the District Attorney is the legal advisor to the Grand Jury
Because the statutory duties of the District Attorney are "fundamental responsibilities" of
Though the elected District Attorneys in this State are certainly entitled to employ other
oned against in Matter of Schumer.
Such sweeping delegation might even constitute a violation by the District Attorney's
we cited the very American Bar Association Criminal Justice Standard which recommends that
* Though surely not binding on courts as a matter of law, the Code of Professional
that the electorate of Hamilton County has most recently chosen to elect a District Attorney
|
