Michigan Advisory Opinions July 27, 1981: AGO 5949 (July 27, 1981)

AGO 5949.

You have requested my opinion as to what actions the Board of State Canvassers and the Secretary of State should take with regard to petitions filed by a state legislator for the office of district court judge for the thirty-sixth district for a term commencing January 1, 1982. According to the facts supplied in your request, the legislator's term expires on January1, 1983 and the primary election for district court judge is to be held September 15, 1981. In addition, the office of district court judge for which the legislator wishes to run was created during his term of office by 1961 PA 236, Sec. 8121a(3), as added by 1980 PA 438; MCLA 600.8121a(3); MSA 27A.8121(1)(3).

Const 1963, art 4, Sec. 9, provides:

'No person elected to the legislature shall receive any civil appointment within this state from the governor, except notaries public, from the legislature, or from any other state authority, during the term for which he is elected.'

This provision has been held by the courts to prohibit a legislator from running for or being appointed to any state office, the term of which commences during the legislative term to which he was elected.

In Richardson v Secretary of State, 381 Mich 304; 160 NW2d 883 (1968), the Board of State Canvassers determined that the nominating petitions filed by a legislator for the office of circuit judge were in order but refused to certify him as a candidate based upon the prohibition contained in Const 1963, art 4, Sec. 9. The Court upheld the actions of the Board of Canvassers and ruled that the legislator not only was ineligible to run for the office of circuit judge while he was a legislator, but also that he was barred from running for the office of circuit judge, even though he resigned, during the term of office as a legislator.

In the most recent pronouncement on this issue, the Michigan Supreme Court in Young v Detroit City Clerk, 389 Mich 333, 344; 207 NW2d 126, 130 (1973) commented:

'[this] and similar constitutional provisions have two basic purposes:

'1. To prevent vote trading or log-rolling in the Legislature to gain an appointment and/or

'2. To prevent the legislators from creating new posts and then running for them.'

While the Court found that plaintiff Young could seek the office of Mayor of the City of Detroit because that office 'is a local office and not a state office,' it reaffirmed its ruling in Richardson v Secretary of State, supra, saying:

'The Richardson decision is sustainable on two separate grounds. First, Const 1963, art 6, Sec. 1 provides that '[t]he judicial power of the state is vested exclusively in one court of justice ' Thus, all courts within the state are part of the one court of justice and clearly state offices. Second, this office was created during Richardson's term of office and thus, comes under the original prohibition discussed in Ellis v Lennon, supra. (emphasis added) 389 Mich 333, 352

In OAG, 1963-1964, No 4169, p 121, 123 (June 17, 1963) it was concluded that

'[Article] VI, Section 1, of the new Constitution creates an integrated judicial system having several divisions or courts each of which is a state court presided over by justices or judges each of whom is a state officer. Under the holdings of the above-cited cases, it necessarily follows that members of the legislature may not legally run for election to judicial office after January 1, 1964, the effective date of the new Constitution.'

See, also, OAG, 1967-1968, No 4573, p 24 (February 24, 1967).

Thus, it is abundantly clear that the office of judge of a district court is a state office.

Based upon the facts supplied in your opinion request, the legislator is not eligible to run for the office of district court judge the term of which is to commence during his term of office as a legislator.

It is my opinion, therefore, that the Board of Canvassers may determine whether the petitions and affidavit of the legislator are in order but, upon a favorable determination, may not certify the legislator as a candidate for the office of district court judge for the thirty-sixth district. It is further my opinion that the Secretary of State may not certify to the county board of election commissioners that the legislator is a candidate for the office of district court judge for the thirty-sixth district.

Frank J. Kelley

Attorney General