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. 6855 June 14, 1995 FRIEND OF THE COURT: Appointment of the friend of the court by a circuit judge Section 23 of 1982 PA 294, which directs circuit court judges to make appointments to fill the position of friend of the court, does not violate Const 1963, art 6, Sec. 27, which limits the power of circuit judges to make appointments to public office. Honorable Michael E. Nye State Representative The Capitol Lansing, Michigan You have asked if section 23 of 1982 PA 294, the Friend of the Court Act, MCL 552.501 et seq; MSA 25.176(1) et seq, which directs circuit judges to make appointments to fill the position of friend of the court, violates Const 1963, art 6, Sec. 27, which limits the power of circuit judges to make appointments to public office. That constitutional provision provides: The supreme court, the court of appeals, the circuit court, or any justices or judges thereof, shall not exercise any power of appointment to public office except as provided in this constitution. [Emphasis added.] The history of this constitutional provision must be reviewed in the context of both predecessor provisions in the 1908 Michigan Constitution and related provisions of the 1963 Michigan Constitution. Const 1908, art 7, Sec. 6, set forth the power of appointment of the Supreme Court, as follows: The supreme court may appoint and remove its clerk, a reporter of its decisions and a court crier, each of whom shall perform such duties and receive such salary as shall be prescribed by law; and all fees, perquisites and income collected by the clerk shall be turned over by him to the state treasury and credited to the general fund. No Justice of the supreme court shall exercise any other power of appointment to public office. [Emphasis added.] Const 1908, art 7, Sec. 11, regulated the power of appointment of circuit judges as follows: The clerk of each county organized for judicial purposes shall be clerk of the circuit court for such county. The judges of the circuit courts may fill any vacancy in the offices of county clerk or prosecuting attorney within their respective jurisdictions, but shall not exercise any other power of appointment to public office. [Emphasis added.] The appointment power of the Supreme Court was carried forward in Const 1963, art 6, Sec. 7, which provides, in pertinent part, as follows: The supreme court may appoint, may remove, and shall have general supervision of its staff. The appointment power of circuit judges was retained in Const 1963, art 6, Sec. 14, as follows: The clerk of each county organized for judicial purposes or other officer performing the duties of such office as provided in a county charter shall be clerk of the circuit court for such county. The judges of the circuit court may fill a vacancy in an elective office of county clerk or prosecuting attorney within their respective jurisdictions. [Emphasis added.] The prohibitions on judicial appointments to other public offices were carried forward and consolidated in Const 1963, art 6, Sec. 27, as quoted above. The history of Const 1963, art 6, Sec. 14, reveals that, during its consideration at the constitutional convention, a proposal to authorize circuit judges to also appoint persons to the "office" of friend of the court was rejected. 1 Official Record, Constitutional Convention 1961, pp 1376-1380, 1392. However, this proposal assumed that the position of friend of the court was a public office. If the position is one of public employment rather than a public office, then circuit judges may make appointments to that position without violating Const 1963, art 6, Sec. 27. To make this determination, we must examine the statute establishing and regulating the position of friend of the court. In 1982 PA 294, supra, the Legislature repealed the prior statute establishing the friend of the court, 1919 PA 412, and enacted new legislation concerning the friend of the court. (1) Section 23 of that statute provides that "[i]f the position of friend of the court becomes vacant for any reason, the chief judge shall appoint a person to the position of friend of the court not later than 6 months after the vacancy occurs." This statutory provision is presumed to be constitutional and it is the duty of a reviewing court to construe it as constitutional unless it is clearly invalid. Petrus v Dickinson County Bd of Commissioners, 184 Mich App 282, 293; 457 NW2d 359, lv den 435 Mich 879 (1990). In Schultz v Oakland County, 187 Mich App 96, 101; 466 NW2d 374 (1991), the Court of Appeals held that a deputy sheriff is a public employee rather than a public officer. In reaching that result, the Court observed: Finally, our Supreme Court has held that the determination of whether a particular individual is a public officer or a public employee should be made with an eye toward the legislative intent in framing the particular statute by which the position was created. People v Freedland, 308 Mich 449, 457; 14 NW2d 62 (1944). [Emphasis added.] Accordingly, we must examine the terms of the Friend of the Court Act to ascertain whether the Legislature intended the person holding that position to be a public officer or a public employee. Section 3 of that statute provides, in pertinent part: (1) There is created in each judicial circuit of this state an office of the friend of the court, except as provided in subsection (2). (3) The head of each office is the friend of the court serving under section 21(1) or appointed pursuant to section 23. (4) Except as provided in this subsection, the friend of the court is an employee of the circuit court in the judicial circuit served by the friend of the court. The friend of the court for the third judicial circuit, and for any other judicial circuit in which the employees serving in the court are paid by the state, is an employee of the state judicial council. [Emphasis added.] Section 31 of the Friend of the Court Act provides, in relevant part: (7) "Friend of the court" means the person serving under section 21(1) or appointed pursuant to section 23, as the head of the office of the friend of the court. (8) "Office" and "office of the friend of the court" mean the agency created in section 3. A plain reading of the Friend of the Court Act demonstrates the clear legislative intent that a person occupying the position of friend of the court is a public employee rather than a public officer. When the meaning of a statute is clear and unambiguous, a court will simply interpret the statute as written. Owendale-Gagetown School Dist v State Bd of Education, 413 Mich 1, 8; 317 NW2d 529 (1982). The rest of the Friend of the Court Act is consistent with the designation of the friend of the court as a public employee. Under the statute, the friend of the court has little or no independent decision-making authority. Section 5 of the statute directs the friend of the court to provide informational materials to parties, conduct investigations and make recommendations to the court on child custody, visitation and support issues. The recommendations by the friend of the court are not binding on the court nor can they be used as the sole basis for the court's ultimate findings on contested issues unless the parties agree. Jacobs v Jacobs, 118 Mich App 16, 23-24; 324 NW2d 519 (1982). The Michigan Supreme Court has ruled that circuit courts cannot delegate their responsibility to hear evidence and decide contested issues to the friend of the court. Bowler v Bowler, 351 Mich 398, 407; 88 NW2d 505 (1958). It is my opinion, therefore, that section 23 of 1982 PA 294, which directs circuit court judges to make appointments to fill the position of friend of the court, does not violate Const 1963, art 6, Sec. 27, which limits the power of circuit judges to make appointments to public office. Frank J. Kelley Attorney General (1)