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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)



Opinion No. 6176

August 16, 1983


Friend of the court and township clerk

The offices of friend of the court and township clerk are incompatible and may not be simultaneously occupied by the same person.

Honorable Harry DeMaso

State Senator

The State Capitol

Lansing, Michigan

You have requested my opinion whether a person holding the appointive office of friend of the court may also hold the elective office of township clerk.

Your question relates to two public offices in Calhoun County. The Calhoun County Friend of the Court is a full-time position, the duties of which are performed in the county building. The friend of the court also serves as the court administrator. The Marshall Township Clerk is a part-time position and the present clerk is engaged in farming. The present Marshall Township Clerk performs his duties at his home and at the township hall.

The office of friend of the court was originally created in 1919 PA 412, as amended; MCLA 552.251 et seq; MSA 25.171 et seq. Friends of the court in judicial circuits were then appointed by the Governor after recommendation by the circuit judge or judges of the judicial court. The duties of the office involves enforcement of payment of delinquent payments for support; maintenance and education of dependent minor children; investigations; recommendations to the court; petitioning for modification of court decrees and orders; and serving as a referee when so authorized by the court. 1919 PA 412, supra, Sec. 1.

By virtue of the Friend of the Court Act, 1982 PA 294; MCLA 552.501 et seq; MSA 25.176(1) et seq, effective July 1, 1983, the friend of the court is either an employee of the circuit court in the same judicial district or of the State Judicial Council, 1982 PA 194, supra, Sec. 3.

The office of township clerk was created by RS 1846, c 16, as amended; MCLA 41.1 et seq; MSA 5.1 et seq, and the duties of the office are set forth in RS 1846, c 16, Secs. 65 and 66, supra:

'Sec. 65. The township clerk of each township shall have the custody of all the records, books, and papers of the township, when no other provision is made by law; and he shall duly file and safely keep all certificates of oaths and other papers required by law to be filed in his office, and record such as are required by law to be recorded therein; such records, books, and papers shall not be kept in any saloon, restaurant, public inn, hotel, place of public amusement, nor in any place where intoxicating drinks of any kind are kept or sold, or where gaming or plays of chance of any kind are carried on, nor where they will be exposed to unusual hazard of fire or theft, and he shall deliver the same on demand to his successor in office; he shall also open and keep an account with the treasurer of his township, and shall charge such treasurer with all funds which shall come into his hands by virtue of his office, and shall credit him with all moneys paid out by him on the order of the proper authorities of the township, and shall enter the date and amount of all vouchers in a book kept by said clerk in said office; he shall also open and keep a separate account with each of the several funds belonging to his township, and shall credit each of said funds with such amounts as properly belong to them, and shall charge them severally with all warrants drawn on the township and payable from said funds respectively.

'Sec. 66. The township clerk shall transcribe, in the book of records of each township, the minutes of the proceedings of each township meeting held in the township, and shall enter in the book, each order, direction, or rule made by the township meeting. The book and any other writing prepared, owned, used, in the possession of, or retained by the township clerk in the performance of an official function shall be made available to the public in compliance with Act No. 442 of the Public Acts of 1976.'

The township clerk is a member of the township board and, in that capacity, the township clerk may exercise all of the powers of the board in conjunction with its other members. 1919 PA 412, supra, Sec. 4, provided that, with the exception of the third judicial district (Wayne County), the compensation for the friend of the court shall be set and paid by the county board of commissioners from the general fund of the county. 1982 PA 294, Sec. 27; MCLA 552.527; MSA 25.176(27), provides that compensation for the friend of the court will be fixed after July 1, 1983 by the chief judge of the judicial district and paid by the county, except in the third judicial district and any other district in which circuit court employees are employees of the State Judicial Council. RS 1846, c 16, Sec. 95, supra, provides that the compensation of township clerks is paid by the townships.

Const 1963, art 3, Sec. 2, provides:

'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.'

In Township of Dearborn v Dearborn Township Clerk, 334 Mich 673; 55 NW2d 201 (1952), the court held that justices of the peace may not be members of a township board because such dual roles would be violative of the separation of powers doctrine of Const 1908, art 4, Secs. 1 and 2. (Const 1963, art 3, Sec. 2, is a revision of Const 1908, art 4, Secs. 1 and 2.) See also, OAG, 1928-1930, p 373 (May 10, 1929) and OAG, 1965-1966, No 4467, p 131 (Sept 20, 1965).

Const 1963, art 7, Sec. 18 expressly provides for the election in each organized township of a clerk 'whose legislative and administrative powers and duties shall be provided by law.' (Emphasis added.) In exercising both legislative and executive powers, a township clerk does not offend the separation of powers clause contained in Const 1963, art 3, Sec. 2, since the joint exercise is expressly authorized by the Constitution.

The office of friend of the court has clearly been created within the judicial branch of government, while a township clerk serves in the executive and legislative branch of government.

It is my opinion, therefore, that the simultaneous occupancy of the office of friend of the court and of township clerk would be violative of the separation of powers clause contained in Const 1963, art 3, Sec. 2.

Frank J. Kelley

Attorney General

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