STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5757

August 20, 1980

CONSTITUTIONAL LAW:

Const 1963, art 3, Sec. 2

COUNTIES:

Director of ambulance services

COURTS, DISTRICT:

Magistrate

A district court magistrate may not simultaneously hold the position of county district ambulance supervisor.

Mr. William P. Hanna

Prosecuting Attorney

Oceana County

Hart, Michigan 49420

You have requested my opinion on the following question:

You have informed me that Oceana County owns and operates a county-wide ambulance service. You indicate that this county-wide ambulance service is divided into three districts, each district having its own equipment and part time district supervisor. Oceana County would like to appoint the district court magistrate a district ambulance supervisor, the two positions being held simultaneously.

The office of district court magistrate was established by RJA 1961; MCLA 600.8501 et seq; MSA 28A.8501 et seq; Sec. 8501 as last amended by 1978 PA 164. District court magistrates are court officers granted the jurisdiction and duty to arraign and sentence persons upon pleas of guilty or nolo contendere for violations of certain statutes when authorized to do so by the judges of the district court. Authorization may be given by a district judge when the maximum permissible punishment for a specified violation does not exceed 90 days in jail or a fine or both. RJA 1961, supra, Sec. 8511. District court magistrates are officers within the judicial branch of government.

The Constitution of 1963, art 3, Sec. 2, provides for a separation of powers of government:

Const 1963, art 3, Sec. 2, proscribes a person exercising the powers of one branch, such as a district court magistrate exercising judicial power, from exercising powers properly belonging to another branch unless an express exception is provided in the Constitution.

1960 PA 50; MCLA 41.711 et seq; MSA 5.160 et seq, empowers the county board of commissioners to furnish ambulance services to the residents of the county. The provision of such services is a function of the executive branch of government and the district ambulance supervisor would serve within the executive branch.

OAG, 1965-1966, No 4467, p 131 (September 20, 1965), considered a similar question involving justices of the peace serving as members of boards of education and concluded that justices of the peace were in the judicial branch while members of board of education were part of the executive branch so that the simultaneous holding of the two positions by the same person was prohibited by Const 1963, art 3, Sec. 2.

Const 1963 contains no express exception which would allow a district court magistrate to simultaneously hold the position of district ambulance supervisor.

It is my opinion, therefore, that a district court magistrate may not simultaneously hold the position of county district ambulance supervisor.

Frank J. Kelley