STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5319

June 1, 1978

ELECTIONS:

Separate ballot for incumbent circuit judgeships

JUDGES:

Separate ballot for incumbent circuit judgeships

Circuit court judgeships occupied by elected and appointed incumbent circuit judges seeking election or re-election to the office of circuit judge for a full term of six years are to be separated on the ballot from other circuit court judgeships, either newly-created or for which an incumbent circuit judge is not seeking election or re-election in the same judicial circuit. Non-incumbent candidates for circuit court judge in such judicial circuit may file nominating petitions under either category as designated upon their petitions.

Honorable Richard H. Austin

Secretary of State

Treasury Building

Lansing, Michigan

The legislature amended the Michigan Election Law, 1954 PA 116; MCLA 168.1 et seq; MSA 6.1001 et seq, by enactment of 1977 PA 134 to add a new section 424a, which states:

You have requested my opinion whether a circuit judge appointed to fill a vacancy is an 'incumbent circuit judge' within the meaning of 1954 PA 116, Sec. 424a(1), supra.

It should be observed that your question specifically relates to eleven circuit court judgeships in the Third Judicial Circuit which will be filled at the general election in November of 1978. Based upon information furnished by your office, ten of these judgeships will be filled for full terms of six years, expiring on January 1, 1985, and one judgeship will be filled for an unexpired term, expiring on January 1, 1981. Presently these judgeships are occupied as follows: seven circuit judges have been previously elected and are eligible to seek re-election; one circuit judge has previously been elected but is not eligible to seek re-election because he has attained the age of 70; two circuit judges were appointed by the Governor for the balance of the term expiring January 1, 1979 and are eligible to seek election for the full term of six years; and one appointed circuit judge is eligible to seek election to an unexpired term, expiring on January 1, 1981.

In the case of the appointed circuit judge eligible to seek election to a judgeship for an unexpired term, expiring on January 1, 1981, 1954 PA 116, supra, Sec. 424 requires that the vacancy shall be filled in the manner provided in the chapter for the nomination of candidates for circuit judge and the person elected shall hold such office for the remainder of the unexpired term, expiring on January 1, 1981. Thus, as to such office, candidates therefor must be set apart from all other candidates to fill judgeships expiring January 1, 1985.

As to the two circuit judges appointed for terms expiring January 1, 1979, it is necessary to determine whether they are 'incumbents' for the purposes of 1954 PA 116, supra, Sec. 424a.

At the outset, it should be observed that pursuant to 1954 PA 116, supra, Sec. 424, a 'person appointed by the governor shall be considered an incumbent for the purposes of this act. . . .' In adding Sec. 424a to 1954 PA 116, supra, 1977 PA 134 does not change that provision; in fact, it does not purport to define incumbent in any way. Thus, circuit judges holding their office by appointment of the governor are 'incumbents' for all purposes of the Michigan Election Law and must be considered an incumbent under 1954 PA 116, Sec. 424a, supra.

In Baird v Detroit Election Commission, 316 Mich 657; 26 NW2d 346 (1947), the Michigan Supreme Court held that appointed common pleas judges seeking election to their office for the first time were not incumbents who are candidates for re-election entitling them to the designation of 'common pleas judge' on the ballot. This decision, however, is not controlling here because the then prevailing election law did not make appointed judges incumbents for the purposes of the election law as does current 1954 PA 116 Sec. 424, supra.

It is necessary to ascertain and give effect to the intention of the legislature, Roberts Tobacco Co v Department of Revenue, 322 Mich 519; 34 NW2d 54 (1948), and this intent may be determined from an examination of the purpose of the statute, Webster v Rotary Electric Steel Co, 321 Mich 526; 33 NW2d 69 (1948). The intention of the legislature should prevail and a reasonable construction must be given the statute over the literal sense of its terms in order to avoid absurd consequences. People v McFarlane, 389 Mich 557; 208 NW2d 504 (1973).

If the legislature had enacted subsection (1) of 1954 PA 116, Sec. 424a, supra, without adding subsection (2), it could be argued that an incumbent circuit judge or judges seeking re-election should be separated on the ballot from all other circuit court candidates, including incumbent appointed circuit judges seeking election for the first time. However, the legislature also enacted subsection (2) as a part of section 424a. The law is well settled that in construing a statute, effect must be given to every part of it. One part must be construed so as to not render another part nugatory. City of Grand Rapids v Crocker, 219 Mich 175; 189 NW 221 (1922). 1954 PA 116, Sec. 424a, subsection (2), supra, expressly provides that nominating petitions of candidates for circuit judgeships shall be valid only if they indicate that a candidate is filing for a judgeship for which there is not an incumbent judge seeking re-election or is filing for a new judgeship or is filing for election to a judgeship for which an incumbent judge or judges are seeking re-election. Effect must be given to this subsection so as to permit candidates for judgeships to seek election against elected incumbent circuit judges.

Consideration must also be given to 1954 PA 116, supra, Sec. 413a, which authorizes an incumbent circuit judge to become a candidate in the primary for the office of which he is an incumbent by filing an affidavit of candidacy with the Secretary of State not less than 120 days prior to the primary. Thus, an appointed circuit judge may become a candidate for that office by timely filing of an affidavit of candidacy.

Moreover, an examination of all the provisions of 1954 PA 116, Sec. 424a, supra, demonstrates that it was not the legislative intent to make non-incumbents of appointed circuit judges seeking election to the office of circuit judge. From a reading of this portion of the Michigan Election Law, it is clear that the legislature, in enacting 1954 PA 116, Sec. 424a, supra, separated the candidates for circuit judgeships on the ballot into two groups: (1) incumbent circuit judges, including appointed circuit judges, seeking election or re-election; and (2) non-incumbent candidates for judgeships where either (a) a new judgeship has been created, or (b) an incumbent circuit judge does not seek election or re-election. Any other construction of the statute would result in there being no place on the ballot for an appointed incumbent circuit judge seeking election to the office to be listed, and no candidate seeking election to the office of circuit judge could file nominating petitions to run against an appointed circuit judge seeking election. This is true because the only reference to circuit judges seeking election referred to in section 424a(1) is to the two categories of (1) incumbent circuit judges and (2) other circuit court candidates. Obviously, the legislature did not intend such an absurd result. Reading 1954 PA 116, Sec. 424a, supra, as a whole, a non-incumbent candidate for circuit judge may file his candidacy under either category, but as designated on his nominating petitions.

Therefore, it is my opinion that the legislature intended to separate on the ballot those circuit court judgeships presently occupied by either an elected and appointed incumbent circuit judge or judges seeking election or re-election to the office of circuit judge from those judgeships where there is a newly-created judgeship or judgeships ⁽¹⁾ on the ballot or if the only candidates for a judgeship are non-incumbents where the vacancy in the office is one for which an incumbent circuit judge is not seeking re-election.

Frank J. Kelley