Michigan Advisory Opinions June 11, 1982: AGO 6081 (June 11, 1982)

Michigan Attorney General Opinions

1982.

AGO 6081.

You have requested my opinion on two questions arising from the reapportionment of the Michigan Legislature ordered by the Michigan Supreme Court on May 21, 1982 in In re Apportionment of the Michigan Legislature--1982, ---- Mich ----; ---- NW2d ---- (1982), (Case No. 68777).

Your first question states:

Under oath of the Michigan Supreme Court on May 21, 1982 in In re Apportionment of State Legislature--1982, establishing the new boundaries for the legislative districts for the 1982 primary and general elections and setting June 15, 1982 as the final date for filing of petitions or filing fees for candidates to the office of State Representative or State Senator, must a candidate be a resident of the legislative district for 30 days prior to the last date for filing petitions or filing fees for the 1982 primary election in order to be eligible for nomination to the legislative office?

Const 1963, art 4, Sec. 7, provides:

'Each senator and representative must be a citizen of the United States, at least 21 years of age, and an elector of the district he represents. The removal of his domicile from the district shall be deemed a vacation of the office. . . .'

The term 'elector' is defined in Const 1963, art 2, Sec. 1:

'Every citizen of the United States who has attained the age of 21 years, who has resided in this state six months, and who meets the requirements of local residence provided by law, shall be an elector and qualified to vote in any election except as otherwise provided in this constitution. The legislature shall define residence for voting purposes.' (fn1) (Emphasis supplied.)

Thus, the Legislature may define the requirements of an 'elector' as to residency.

Const 1963, art 2, Sec. 4 mandates, in part, that:

'The legislature shall enact laws to regulate the time, place and manner of all nominations and elections, except as otherwise provided in this constitution or in the constitution and laws of the United States. . . .'

Recognizing this authority, the Michigan Supreme Court in Council No 11, AFSCME v Civil Service Commission, 408 Mich 385, 395; 292 NW2d 442, 445-446 (1980), has stated:

'[B]y a specific grant of power from the people in art 2 of the state Constitution, the Legislature has been given the responsibility of regulating nominations and elections, providing for the registration of voters, declaring their eligibility within constitutional limits and, in general, enacting laws guaranteeing in myriad ways the rights of citizens to participate in the political process and exercise the elective franchise. . . .'

Pursuant to the aforesaid mandate, the Legislature has enacted laws regulating nominations and elections in 1954 PA 116, MCLA 168.1 et seq; MSA 6.1001 et seq.

In 1954 PA 116, supra, Sec. 161, the Legislature has provided:

'No person shall be eligible to the office of state senator or representative who is not a citizen of the United States and a qualified elector of the district he represents, as provided in section 7 of article 4 of the state constitution.'

'Elector' has been further described by the Legislature in 1954 PA 116, supra, Sec. 10 as follows:

'The term 'qualified elector', as used in this act, shall be construed to mean any person who possesses the qualifications of an elector as prescribed in section 1 of article 2 of the state constitution and who has resided in the city or township 30 days.'

In 1954 PA 116, supra, Sec. 492, the Legislature has prescribed:

'Every person who has the following qualifications of an elector, or who will have such qualifications at the next ensuing election or primary election, shall be entitled to be registered as an elector in the township, ward, or precinct in which he or she resides. Such person must be a citizen of the United States; at least 18 years of age; a resident of the state for at least 30 days; and be a resident of the city, township, or village on or before the thirtieth day prior to the next ensuing regular or special election or primary election.' (fn2) (Emphasis supplied.)

Thus, the term 'elector' as utilized in Const 1963, art 4, Sec. 7 and implemented and described in 1954 PA 116, Sec. 161, supra, as a 'qualified elector of the district' means the individual must be a registered voter. This was also the intent of the framers to the Constitutional Convention. When Committee Proposal 32, which became Const 1963, art 4, Sec. 7, was considered on first reading, the following colloquy took place:

'MR. MAHINSKE: I would like to ask Mr. Kuhn if his committee has interpreted the words 'qualified elector' to mean a registered voter?

'MR. KUHN: Yes, we have. . . .' 1 Official Record, Constitutional Convention 1961, p 765.

Finally, the meaning of the term 'resident' as used in the foregoing provisions must be ascertained. This matter was addressed in OAG, 1975-1976, No 4931, p 332, 335 (March 22, 1976), which concluded, after consideration of the applicable case and statutory law, that:

'It is well settled that the establishment of a new residence or domicile consists of two factors: (1) the fact of physical presence, and (2) the intention to remain. . . .'

It is a fundamental rule of construction that the Constitution must be read as a whole and each provision harmonized to give effect to all provisions. Saginaw County v State Tax Commission, 54 Mich App 160; 220 NW2d 706, aff'd, 397 Mich 550; 244 NW2d 909 (1976). Const 1963, art 4, Sec. 7, in setting forth the qualifications for a legislator, specifically states the requirement that the individual must be an elector of the district he represents. Const 1963, art 2, Sec. 1 authorizes the Legislature to set forth the requirements for residence which must be met in order for a person to qualify as an elector. The Legislature, in keeping with its constitutional authority, has required that, in order for an individual to be an elector, he or she must have resided in the city or township for 30 days prior to the next ensuing primary election. 1954 PA 116, Secs. 10 and 492, supra.

In addition, the Legislature has further defined the term 'elector,' consistent with the above quoted constitutional convention debate to mean a person who is a registered voter. Thus, in order for a person to meet the definition of elector as used in Const 1963, art 4, Sec. 7, in order to qualify for the Michigan Legislature, the individual must be a registered voter of the district from which election is sought.

The rule was summarized in OAG, 1975-1976, No 4931, supra, at p 335:

'In order to be a qualified elector, a person must reside in the political unit for 30 days under the provisions of MCLA 168.10, supra. Therefore, assuming that a person is a resident of the district in fact and in intention, he must be a resident for a minimum of 30 days to qualify to seek election to the legislature.'

See also, 1 OAG, 1959, No 3381, p 31 (February 14, 1959).

It should be noted that 1954 PA 116, supra, Sec. 558 provides:

'Any candidate filing nominating petitions or filing fee for any county, state or national office in any primary election, at the time of filing such nominating petitions or filing fee, shall file with the county clerk or deputy county clerk in the county in which he is registered or with the secretary of state, 2 copies of an affidavit, or such other information as satisfies the county clerk or deputy county clerk or the secretary of state, that he or she is the person filing petitions or filing fee for any such office. Such affidavit shall contain the candidate's name, address, ward and precinct where registered, . . ..' (Emphasis supplied.)

Thus, the Legislature, in defining the term 'elector' as utilized in the Constitution, has required the person to be a registered voter. In order to be a registered voter, an individual must have resided in the city or township for a minimum of 30 days prior to exercising the right to vote. Further, the provision of 1954 PA 116, Sec. 558, supra, requiring candidates for Legislature to submit an affidavit to the county clerk of the county in which the candidate is registered or with the Secretary of State setting forth the address, ward and precinct where the candidate is registered, evidences the intent of the Legislature, consistent with Const 1963, art 4, Sec. 7, that an individual attempting to qualify to run for the Legislature must be a registered voter of the district which the individual seeks to represent at the time the required affidavit is filed.

The boundaries of the reapportioned legislative districts for the 1982 primary election were not established by order of the Michigan Supreme Court until May 21, 1982. The court set June 15, 1982 as the final filing date for candidates wishing to run for the Legislature, thus, rendering it physically impossible, in the context of the attendant facts, for some individuals to establish a new residence in a district within the period of 30 days preceding the court ordered filing date.

OAG, 1975-1976, No 4931, supra, concluded that an individual must reside in the district for 30 days to qualify to seek nomination and election to the Legislature. It is abundantly clear that, if an individual establishes residence in the legislative district as fashioned by the Michigan Supreme Court, from which election is sought on or before the filing date ordered by the Court, the individual will have resided in the new legislative district for more than 30 days prior to the August 1982 primary election date. Under the attendant facts, there would be substantial compliance with the statutory framework of 1954 PA 116, supra, and the order of the Michigan Supreme Court on the part of an individual seeking to run for the Legislature by establishing residence in the new district on or before June 15, 1982, the last date for filing nominating petitions or filing fees for such office.

This conclusion is supported by the decision of the California Supreme Court in Legislature of the State of California v Reinecke, 110 Cal Rptr 718; 516 P2d 6 (1973), where the court, in approving new legislative district boundaries for the reapportionment of the California Legislature, shortened the required durational residency of candidates within the new district, permitting an individual to select a new residence so as to be eligible to be a candidate for legislative office in the reapportioned district if he or she became a resident thereof timely to filing the declaration of intention to become a candidate.

It is my opinion, therefore, that, for the primary election to be held in August, 1982, an individual seeking nomination to the office of state Senator or state Representative at the 1982 primary election, must be a registered elector of the legislative district from which he or she seeks nomination on or before June 15, 1982, the last date for filing nominating petitions or filing fees for such office.

Your second question is:

If a present member of the Senate were to reside in and file as a candidate for the office of State Senator in a senatorial district as reapportioned by the Michigan Supreme Court containing no portion of the senatorial district he presently represents, what body would have jurisdiction to determine whether or not the legislator is qualified to continue to represent the senatorial district from which he was elected in light of the last sentence of 1954 PA 116, Sec. 176?

1954 PA 116, supra, Sec. 176, as last amended by 1963 2nd Ex Sess PA 63, provides:

'The office of state senator or representative shall become vacant on the happening of any of the following events, before the expiration of the term of such office: The death of the incumbent; his resignation; his removal from office; his ceasing to be an inhabitant of the district for which he shall have been elected; the decision of a competent tribunal declaring void his election or appointment; or his refusal or neglect to take and subscribe to his oath of office. Regardless of any change in the boundaries of any state senatorial or representative district, an incumbent state senator or representative shall continue to represent the district from which he was elected until his current term of office shall expire or his successor is elected and qualified.' (Emphasis added.)

A study of the legislative history of this provision demonstrates that the last sentence was added by the Legislature through 1963 2nd Ex Sess PA 63. It is clear that this amendatory act was enacted to facilitate implementation of Const 1963 in accordance with the provisions for reapportionment of the Legislature as set forth in Const 1963, art 4.

Const 1963, art 4, Sec. 7, which provides that the removal of domicile from the district shall be deemed to be a vacation of the legislative office, must be read together with Const 1963, art 4, Sec. 16, which provides:

'Each house, except as otherwise provided in this constitution, shall choose its own officers and determine the rules of its proceedings, but shall not adopt any rule that will prevent a majority of the members elected thereto and serving therein from discharging a committee from the further consideration of any measure. Each house shall be the sole judge of the qualifications, elections and returns of its members, and may, with the concurrence of two-thirds of all the members elected thereto and serving therein, expel a member. The reasons for such expulsion shall be entered in the journal, with the votes and names of the members voting upon the question. No member shall be expelled a second time for the same cause.' (Emphasis added.)

Research reveals no decision of a Michigan appellate court applying the second sentence of either Const 1963, art 4, Sec. 7 or art 4, Sec. 16, to your precise question.

The authority of each house of the Legislature to act as the sole judge of the election and qualification of its members in disputed election contests is well settled. The action of the house of the Legislature is conclusive and not subject to review by the courts. Attorney General, ex rel Beers, v Board of Canvassers of Seventh Senatorial District, 155 Mich 44; 118 NW 584 (1908); Auditor General v Board of Supervisors of Menominee County, 89 Mich 552; 51 NW 483 (1891); People, ex rel Drake v Mahaney, 13 Mich 481 (1865).

The applicable general rule was stated in McLeod v State Board of Canvassers, 304 Mich 120, 129; 74 NW2d 240 (1942):

'The weight of authority in other jurisdictions adheres to the rule of law that where constitutional or statutory provisions make a legislative body the sole judge of the election and qualifications of its own members, the final decision rests in such body, and courts cannot interfere. Williams v. Maas, 198 Minn. 516 (270 N.W. 586); Smith v. Polk, 135 Ohio St. 70 (19 N.E. [2d] 281); Burchell v State Board of Election Commissioners, 252 Ky. 823 (68 S.W. [2d] 427); State, ex rel. McDill v. State Canvassers, 36 Wis. 498. The same rule obtains in this State. As to representative in congress, see Belknap v. Ionia County Board of Canvassers, supra; as to members of a common council under a city charter, People v. Harshaw, 60 Mich. 200 (1 Am. St. Rep. 498); as to members of the State Legislature, Auditor General v. Menominee County Supervisors, 80 Mich. 552.'

Houston v McKinley, 4 Mich App 94, 98, 143 NW2d 781, 782 (1966); 107 ALR 205; 2 OAG, 1956, No 2652, p 370 (June 25, 1956).

Thus, a tribunal created by the organic law to determine the right to a public office is the exclusive body to make the determination and that body alone may test the right to the office. Dingeman v State Board of Canvassers, 198 Mich 135; 164 NW 492 (1917).

In examining the nature of the power of a house of the Legislature to pass upon the qualifications of its members under Const 1908, art 5, Sec. 15, similar to Const 1963, art 4, Sec. 16, the Attorney General, in OAG, 1930-1932, p 154, 156-157 (March 24, 1931), stated:

'This power to judge as to the qualifications of its members is a continuous one and runs through the entire term. Each branch of the legislature may at any time pass upon the present qualifications of its members.'

This conclusion was also adopted by the Attorney General in OAG, 1947-1948, No 26, p 168, 169 (January 16, 1947), in which it was stated that the power of each house to pass upon the qualifications of its members, being a continuous power running through the entire term, is not exhausted once it has been exercised and a member is seated.

These opinions find support in decisions of courts which have ruled that the power of a house of the state legislature to pass upon the qualification of its members is a continuous power. State, ex rel Martin v Gilmore, 20 Kan 551 (1878); Raney v Stovall, 361 SW2d 518 (Ky, 1962).

Directly on point is Wixson v Green, 521 P2d 817 (Okla, 1974), where a member was elected to the Oklahoma House of Representatives, qualified and commenced his term, and thereafter moved from his district for a period of over one year, contrary to the requirement of the Oklahoma Constitution, art 5, Sec. 17, that he reside in the district. The Oklahoma Supreme Court ruled that under a comparable constitutional provision empowering each house of the Legislature to judge the qualifications of its members, the House of Representatives has exclusive authority to the exclusion of the courts to determine whether the State Representative continued to meet the requirement of the state constitution that he reside in the district under its power to determine qualifications of its members.

It is my opinion, in answer to your second question, that the Senate has exclusive jurisdiction, to the exclusion of the courts, to determine whether a member of the Senate, who has moved his residence to qualify as a candidate in a new district as reapportioned by the Michigan Supreme Court, is qualified to continue to be a member to represent his present district in light of the final sentence of 1954 PA 116, Sec. 176, supra.

Frank J. Kelley

Attorney General

1. This section of the Constitution had been modified by US Const, Am XXVI, which lowered the voting age to 18 years. Further, the requirement of 6 months residence is no longer applicable as violative of the United States Constitution. Dunn v Blumstein, 405 US 330; 92 S Ct 995; 31 L Ed 2d 274 (1972).

2. See also, 1954 PA 116, Sec. 500a; MCLA 168.500a; MSA 6.1500(1), which provides for the registration or transfer of registration if the individual meets the qualifications of an elector on the date of the application or will possess the qualifications at the next election.