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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. 6130

February 25, 1983

CONSTITUTIONAL LAW:

Const 1963, art 3, Sec. 2--probate judge holding office of member of board of control of state college

PUBLIC OFFICES AND OFFICERS:

Probate judge holding office of member of board of control of state college

A person serving as a probate judge may not simultaneously hold the position of member of the Board of Control of Lake Superior State College.

Honorable Mitch Irwin

State Senator

State Capitol

Lansing, MI

You have requested my opinion on the following question:

May a person serving as a probate judge simultaneously hold the position of member of the Board of Control of Lake Superior State College?

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

'The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.'

Const 1963, art 6, Sec. 1, provides:

'The judicial power of the state is vested exclusively in one court of justice which shall be divided into one supreme Court, one court of appeals, one trial court of general jurisdiction known as the circuit court, one probate court, and courts of limited jurisdiction that the legislature may establish by a two-thirds vote of the members elected to and serving in each house.' (Emphasis added.)

The probate court clearly is part of the judicial branch of government and a probate judge exercises judicial powers. Buback v Governor, 380 Mich 209; 156 NW2d 549 (1968). Thus, Const 1963, art 3, Sec. 2, proscribes a probate judge from exercising powers properly belonging to the executive or legislative branches unless an express exception is provided in the Constitution.

Const 1963, art 5, Sec. 2, provides, in pertinent part:

'All executive and administrative offices, agencies and instrumentalities of the executive branch of state government and their respective functions, powers and duties, except for the office of governor and lieutenant governor and the governing bodies of insituations of higher education provided for in this constitution, shall be allocated by law among and within not more than 20 principal departments. . . .' (Emphasis added.)

Institutions of higher education are provided for in Const 1963, art 8, Secs. 5 and 6. Const 1963, art 8, Sec. 5 provides for the University of Michigan, Michigan State University and Wayne State University. Const 1963, art 8, Sec. 6 provides for 'other institutions of higher education established by law having authority to grant baccalaureate degrees. . . .' It has been recognized by the courts that these institutions are state agencies within the executive branch of government. Regents of University of Michigan v Labor Mediation Board, 18 Mich App 485, 490; 171 NW2d 477 (1969).

Lake Superior State College was established by 1969 PA 26; MCLA 390.391 et seq, MSA 15.1852(101) et seq, and has authority to grant baccalaureate degrees. It is, therefore, one of the institutions of higher education provided for by Const 1963, art 8, Sec. 6. The college is, thus, within the executive branch of government and a member of its board of control serves within the executive branch.

In Township of Dearborn v Dearborn Township Clerk, 334 Mich 673; 55 NW2d 201 (1952), the Supreme Court considered a similar question involving justices of the peace serving as members of the township board. The court held that justices of the peace exercised judicial powers while township boards exercised legislative powers so that the simultaneous holding of the two positions by the same person violated the separation of powers provisions in the Constitution of 1908, which were the predecessors of Const 1963, art 3, Sec. 2.

Const 1963 contains no provision which would enable a probate judge to simultaneously serve as a member of the Board of Control of Lake Superior State College.

It is my opinion, therefore, that a person serving as a probate judge may not simultaneously hold the position of member of the Board of Control of Lake Superior State College.

Frank J. Kelley

Attorney General

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