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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 5905 May 18, 1981 COURTS, DISTRICT: Appointment of district magistrate in district of third class The presiding judge of a district court in a district of the third class has no authority to appoint a deputy clerk of the court as a district court magistrate. The appointment of a district court magistrate by action of all of the judges in such district must be approved by the controlling units of the district. The Honorable Michael O'Brien State Senator The Capitol Lansing, Michigan You have requested my opinion on the following question concerning the powers of a presiding judge of a third class district court: May the Presiding Judge of a third class district court appoint a deputy clerk as a magistrate to perform marriages and handle traffic tickets, in addition to his or her duties as a deputy clerk of the district court, without the approval of the district control units within the district? 1961 PA 236, Sec. 8501(2), as last amended by 1980 PA 438; MCLA 600.8501(2); MSA 27A.8501(2), provides for the appointment of magistrates in third class districts as follows: 'In each district of the third class, the judge or judges of the district may appoint 1 district court magistrate. A person shall not be appointed magistrate unless the person is a registered elector in the district for which the person was appointed. Before a person assumes the duties of the office of magistrate in a district of the third class, the appointment of that person as a district court magistrate shall be subject to approval by each of the governing bodies of the district control units within the district. A person may not assume the duties of that office unless the governing body or bodies of the district control unit or units which, individually or in the aggregate, contain more than 50% of the population of the district approve that person's appointment as district court magistrate. This subsection shall not apply to the thirty-sixth district.' Thus, the presiding judge of a district of the third class must exercise the appointment power with the other judges of the district court. Further, any appointment of a district court magistrate is subject to approval of the district control units within the district. It is also necessary to consider 1961 PA 236, Sec. 8535(1), as last amended by 1980 PA 438; MCLA 600.8535; MSA 27A.8535, which provides: '[M]agistrates shall pay all fines and costs received by them to the clerk of the district court on or before the last day of the month following receipt of those funds, which shall be allocated as provided in section 8379.' In 1961 PA 236, Sec. 8545; MCLA 600.8545; MSA 27A.8545, the Legislature has provided: 'Magistrates shall exercise the same powers and perform the same duties as deputy clerks of the district court for the purpose of carrying out the provisions of chapter 84 although they shall not be considered deputy clerks.' 1961 PA 236, Sec. 8503, MCLA 600.8503; MSA 27A.8503, provides: 'Subject to the provisions of Section 8501, the judges of the district court within a district of the first class may appoint a deputy clerk as a magistrate to perform the duties and exercise the powers of a magistrate in addition to his duties as a deputy clerk of the district court.' [Emphasis supplied.] The primary rule of statutory construction is to determine legislative intent. Smith v Robbins, 91 Mich App 284; 283 NW2d 725 (1979). When that intent is expressed in clear and unambiguous language, the statute is to be applied and no interpretation is necessary. Struble v Detroit Automobile Inter-Insurance Exchange, 86 Mich App 245; 272 NW2d 617 (1978). The clear intent of the Legislature is that only in first class districts may a deputy clerk be appointed as a district court magistrate. There is no provision that authorizes for a similar appointment in third class districts. It is my opinion, therefore, that the presiding judge of a district court in a district of the third class has no authority to appoint a deputy clerk as a district court magistrate. It is my further opinion that the appointment of a district court magistrate by action of the judges in a third class district must be approved by the controlling units of the districts. Frank J. Kelley Attorney General
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