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



ATTORNEYS:

ELECTIONS:

JUDGES:

Application of Const 1963, art 6,  19(2), requirement that judges be admitted to practice of law for five years



Const 1963, art 6,  19(2), which establishes a length of experience requirement for judges, mandates that a person be admitted to the practice of law for at least five years as of the date of taking judicial office.


Opinion No. 6946

July 25, 1997


Honorable Douglas Carl
State Senator
The Capitol
Lansing, MI


You have asked whether Const 1963, art 6,  19(2), which establishes a length of experience requirement for judges, mandates that a person be admitted to the practice of law for at least five years as of the date of taking judicial office. Stated another way, you have inquired whether section 19(2) requires admission to practice for five years from the date of filing one's candidacy, from the date of election, or from the date of taking office.

At the general election held November 5, 1996, Senate Joint Resolution D of 1995 was submitted to the people and adopted as Ballot Proposal B, amending Const 1963, art 6,  19, regarding qualifications for judicial office. New section 19(2), effective December 21, 1996, requires that judges be admitted to the practice of law for at least five years.

(2) To be qualified to serve as a judge of a trial court, a judge of the court of appeals, or a justice of the supreme court, a person shall have been admitted to the practice of law for at least 5 years. This subsection does not apply to any judge or justice appointed or elected to judicial office prior to the date on which this subsection becomes part of the constitution.

(Emphasis added.)

Where the provisions of a statute are clear and unambiguous, they are to be applied as written without interpretation. Owendale-Gagetown School Dist v State Bd of Education, 413 Mich 1, 8; 317 NW2d 529 (1982). By its express terms, the new section 19(2) length of experience requirement establishes one's qualifications to serve as a judge. Section 19(2) is silent regarding one's qualifications to file for judicial office, to be a candidate for judicial office, or to be elected to judicial office.

In addressing eligibility for public office, Michigan recognizes clear distinctions between qualifications for candidacy, for election, and for serving in office. A statute that establishes a residency requirement for candidates means that the residency must exist at the time of filing for election to office, since that is when one becomes a candidate. Okros v Myslakowski, 67 Mich App 397, 241 NW2d 223 (1976). Statutes imposing maximum age limits for judges consistently specify that at the time of election or appointment, one must be less than 70 years of age.1

In Ransford v Graham, 374 Mich 104, 107; 131 NW2d 201 (1964), the court interpreted the term serving as it was used in Const 1963, art 6,  19, sched  7, as follows:

[T]he exemption, contained in section 7 of the schedule, from the requirement that a judge of probate must be a person who is licensed to practice law in this State, is
. . . expressly stated to apply only to "any judge of probate serving on the effective date of this Constitution." "Serving" means discharging a function or duty, rendering a service.

(emphasis added).

Applying the Ransford court's definition of serving to new section 19(2) compels the conclusion that a judge must be qualified to serve as a judge at the time he or she will be discharging a function or duty, rendering a service. See also, OAG, 1929-1930, p 810 (March 24, 1930), which concluded that where the condition precedent consists of a qualification for holding public office, rather than for being a candidate for the office, such eligibility refers to the capacity to hold the office and not merely the right to be elected to it.

It is my opinion, therefore, that Const 1963, art 6, 19(2), which establishes a length of experience requirement for judges, mandates that a person be admitted to the practice of law for at least five years as of the date of taking judicial office.



FRANK J. KELLEY
Attorney General

1 One must be less than 70 years of age at the time of election or appointment as a district court judge (MCL 168.467; MSA 6.1467); at the time of election as a probate court judge (MCL 168.431; MSA 6.1431); at the time of election as a circuit court judge (MCL 168.411; MSA 6.1411); at the time of election or appointment as a court of appeals judge (MCL 168.409; MSA 6.1409); and at the time of election or appointment as a supreme court justice (MCL 168.391; MSA 6.1391).