Michigan Advisory Opinions June 16, 1980: AGO 5728 (June 16, 1980)

AGO 5728.

You have requested my opinion on the following question:

Where the Governor has appointed a person to fill a vacancy in the office of member of either of the governing bodies of the University of Michigan, Michigan State University or Wayne State University, may the Legislature require that the appointee hold his or her office until an election is held to fill the vacancy for the unexpired term and the successor is elected and qualifies for such office?

Const 1963, art 8, Sec. 5, addresses the method of electing members to and filling vacancies on the controlling boards of Michigan State University, the University of Michigan and Wayne State University, and provides, in pertinent part, as follows:

'The board of each institution shall consist of eight members who shall hold office for terms of eight years and who shall be elected as provided by law. The governor shall fill board vacancies by appointment. Each appointee shall hold office until a successor has been nominated and elected as provided by law.' (Emphasis supplied)

The constitutional phrase 'as provided by law' was considered by the Michigan Supreme Court in Beech Grove Investment Company v Civil Rights Commission, 380 Mich 405, 418-419; 157 NW2d 213 (1968). In considering the jurisdiction of the Civil Rights Commission under Const 1963, art 5, Sec. 29, the Court held that the term 'provided by law' was defined to mean that the Legislature would do the entire job of implementation.

Thus, the Legislature has the authority to determine the length of the term of individuals appointed to fill vacancies in the offices enumerated in Const 1963, art 8, Sec. 5. This was also the intent of the framers of Const 1963. It should be noted that the last sentence of Const 1963, art 8, Sec. 5, underscored above, contains new language which did not appear in the predecessor section, Const 1908, art 11, Sec. 3.

In Advisory Opinion of 1978 PA 426, 403 Mich 631, 640; 272 NW2d 495, 498 (1978), the Michigan Supreme Court, while discussing generally recognized rules of constitutional construction and citing from the case of Kearney v Board of State Auditors, 189 Mich 666, 673; 155 NW 510, 512 (1915), ruled:

"In construing constitutional provisions where the meaning may be questioned, the court should have regard to the circumstances leading to their adoption and the purpose sought to be accomplished."

The Court held that in order to determine the circumstances surrounding the adoption of a constitutional provision and the meaning intended by the words contained therein, convention debates may be consulted. Regents of the University of Michigan v Michigan, 395 Mich 52; 235 NW2d 1 (1975); Burdick v Secretary of State, 373 Mich 578; 130 NW2d 380 (1964).

The debate held by the Constitutional Convention of 1961 on the subject of vacancies on the boards governing the three universities provided for in Const 1963, art 8, Sec. 5, is informative. Const 1963, art 8, Sec. 5, as originally considered as Committee Proposal 98, provided, in pertinent part, that '[v]acancies shall be filled according to law.' 1 Official Record, Constitutional Convention, 1961, p 1135. The following debate ensued as to this proposal.

'MR. DOWNS:

. . . The present constitution, as I understand, particularly on the University of Michigan and Wayne, provides that if there is a vacancy in the governing board, the governor shall make an appointment to fill that until the next election.

'MR. BENTLEY:

In specific reply to your question, Mr. Downs, the committee felt that it would be better to leave up to the legislature the matter of filling these particular vacancies; whether by appointment, perhaps, by the other members of the boards, whether by continuing appointment by the governor, or whatever other manner the legislature in its wisdom and discretion would see fit to provide, rather than to tie down as the existing constitution does the question of appointment.

'Therefore, we felt that since we desired to continue these boards on an elective basis--which you have so thoroughly supported, and rightfully so--I believe that we should allow the legislature the discretion to determine the manner in which any vacancies, if they should occur, be filled.' 1 Official Record, Constitutional Convention, 1961, p 1144

Subsequently, Mr. Downs offered, and the delegates accepted, an amendment which added the last sentence as presently contained in Const 1963, art 8, Sec. 5, supra. 1 Official Record, Constitutional Convention, 1961, p 1147.

Thus, the drafters of Const 1963 intended that the Legislature have the power to determine that appointees to fill vacancies in such offices would serve until a successor is elected to fill the vacancy for the unexpired term and qualifies for office.

Moreover, it is instructive to compare Const 1963, art 8, Sec. 5 with Const 1963, art 8, Sec. 3, which states, in part, as follows:

'The state board of education shall consist of eight members who shall be nominated by party conventions and elected at large for terms of eight years as prescribed by law. The governor shall fill any vacancy by appointment for the unexpired term. . . .'

Const 1963, art 8, Sec. 5 has been implemented by the Legislature through the Michigan Election Law, 1954 PA 116, Sec. 294, as last amended by 1963 2nd Ex Sess PA 5; MCLA 168.294; MSA 6.1294, which provides that the Governor appoint persons to fill any vacancies on these three university governing bodies, and that persons so appointed hold office for the remainder of the unexpired term.

The power of the Legislature to determine when the term of persons appointed to fill such vacancies shall expire and when the people will elect persons to fill such offices for the unexpired term is plenary in the absence of limitation in Const 1963. Toy ex rel Elliott v Voelker, 273 Mich 205; 262 NW 881 (1935).

It is, therefore, my opinion that the Legislature may amend 1954 PA 116, Sec. 294, supra, to provide that individuals appointed by the Governor to fill a vacancy in the office of either of the governing bodies of Michigan State University, the University of Michigan or Wayne State University shall hold office until the next general election when a successor will be elected to occupy the office for the unexpired term and until the person so elected qualifies for said office.

Frank J. Kelley

Attorney General