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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. 6208 March 22, 1984 PROSECUTING ATTORNEYS: Residency requirement for an assistant prosecuting attorney An assistant prosecuting attorney need not be a resident of the county in which he or she serves. Mr. Richard S. Murray Prosecuting Attorney Houghton County Courthouse Houghton, Michigan 49931 You have requested my opinion whether an assistant prosecuting attorney, appointed by the county prosecuting attorney, pursuant to 1911 PA 41; MCLA 49.41; MSA 5.801 and/or 1925 PA 329; MCLA 49.31; MSA 5.791, must be a resident of the county he or she serves. Prior to the enactment of the foregoing statutes, the Supreme Court considered, in People v Thacker, 108 Mich 652, 658-659; 66 NW 562 (1896), the question whether an individual assisting the prosecutor was required to be a resident of the county: 'Mr. Pratt, who assisted the prosecuting attorney, was not a resident of Benzie county. It is claimed that he was disqualified from acting in the capacity of prosecuting officer by reason of his nonresidence. So far as we can find, the question is a new one in this State. 1 How. Stat. Sec. 560, provides that the prosecuting attorney may, under the direction of the court, procure assistance in the trial of felonies. It has been repeatedly held that this may be done. Meister v. People, 31 Mich. 99; Sneed v. People, 38 Mich. 251; Ulrich v. People, 39 Mich. 245; People v Bemis, 51 Mich. 422; Webber v. Barry, 66 Mich. 137; People v. Fuhrmann, 103 Mich. 593. In all of these cases great stress is laid upon the fact that the attorney so employed must be impartial and disinterested. To hold that the person so employed must be a resident of the county would have the practical effect, in newer counties, where there are but few attorneys, of depriving the prosecuting officer of any assistance, while there is no limit to the number of able counsel with which the respondent may surround himself if he or his friends are able to employ them. In the absence of any decisions to that effect, we are not inclined to hold Mr. Pratt disqualified because of his nonresidence.' Thus, the Supreme Court established a common law rule that an attorney assisting a prosecutor need not be a resident of the county in which he or she is serving. In the absence of an express statutory provision requiring residency, an assistant prosecuting attorney need not be a resident of the county in which he or she will serve. 27 CJS, District and Prosecuting Attorneys, Sec. 29(1), p 723. Although the Legislature may modify the common law rule, it is well established that when it does so, it must be in a clear manner. Bandfield v Bandfield, 117 Mich 80; 75 NW 287 (1898); Silver v International Paper Co, 35 Mich App 469; 192 NW2d 535, lv den, 386 Mich 764 (1971). The Legislature has not clearly modified the common law as determined by the Supreme Court in People v Thacker, supra. 1911 PA 41, supra, authorizes prosecuting attorneys to appoint assistant prosecuting attorneys for their respective counties. 1911 PA 41, supra, Sec. 2 provides, in part: 'Any such assistant prosecuting attorney shall hold his office during the pleasure of the prosecuting attorney appointing him, . . . but he shall be subject to all the legal diqualifications and disabilities of the prosecuting attorney, . . ..' It is not clear that the Legislature intended to abbrogate the common law rule that an assistant prosecuting attorney need not be a resident through the use of the word 'disqualification.' Additionally, 1927 PA 175, c 16, Sec. 18; MCLA 776.18; MSA 28.1273, authorizes a prosecuting attorney to appoint assistants as follows: 'The prosecuting attorney may, under the direction of the court, procure such assistance in the trial of any person charged with a felony as he may deem necessary for the trial thereof, and the prosecuting attorney may, under the direction of the court, in case of disability of the prosecuting attorney, appoint an assistant to perform his duties . . ..' This statute has been interpreted as permitting the appointment of an attorney who is not a resident of the county for which the services are performed. OAG, 1943-1944, No 0-1428, p 557 (October 12, 1943). It is my opinion, therefore, that an assistant prosecuting attorney who is appointed pursuant to 1911 PA 41, supra, and/or 1925 PA 329, supra, need not be a resident of the county in which he or she serves. Frank J. Kelley Attorney General
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