STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6251

October 17, 1984

RETIREMENT SYSTEMS:

Municipal Employees' Retirement System--right of a division of district court of the third class to join as member

A division of a district court of the third class is not a municipality for the purposes of participating in the Municipal Employees' Retirement System.

Honorable Wilfred D. Webb

State Representative

The Capitol

Lansing, Michigan

You have requested my opinion on the following question:

The Municipal Employees' Retirement Act, 1945 PA 135, as amended; MCLA 38.601 et seq; MSA 5.4001 et seq, provides for a municipal employees' retirement system and requires contributions to certain funds established therein by the participating municipalities and their employees. Membership of a participating municipality in the Municipal Employees' Retirement System, sometimes hereafter referred to as MERS, under this Act requires either a three-fifths majority vote of the governing body of a municipality or a majority vote of the qualified electors of such municipality voting upon the question in order to participate in MERS. 1945 PA 135, supra, Sec. 6.

1945 PA 135, supra, Sec. 2, defines the terms 'municipality' and 'governing body,' as used in the Act, as follows:

As authorized by Const 1963, art 6, Sec. 26, the district court is established as a court of limited jurisdiction pursuant to the Revised Judicature Act, 1961 PA 236, Sec. 8101 et seq, as added in 1968 PA 154; MCLA 600.8101 et seq; MSA 27A.8101 et seq. Judges of the 74th Judicial Dist v Bay County, 385 Mich 710; 190 NW2d 219 (1971). The City of Ferndale, the City of Hazel Park, and the City of and Madison Heights comprise the Forty-third District, which is designated as a district of the third class in 1961 PA 236, supra, Sec. 8123(1).

It is noted that in a district of the third class, each political subdivision comprising the district is responsible for maintaining, financing and operating the district court within its respective political subdivision except as otherwise provided in the Act. 1961 PA 236, supra, Sec. 8103(3).

Thus, the question is whether that part of the Forty-Third District Court, which is operating in the City of Ferndale, is a 'municipality' for purposes of electing to come under the provisions of 1945 PA 135, supra.

As provided in 1961 PA 236, supra, Sec. 8271, the judges of the district court are empowered to appoint the employees of the court and fix their compensation within the overall limits of appropriations provided by the governing body of the district control unit operating the district court within its boundaries. Judges of the 74th Judicial Dist v Bay County, supra. Under 1961 PA 236, supra, Sec. 8271(4) and (5), full-time employees of the abolished municipal court in districts of the third class, if any, were transferred to the district court for the city in which they were previously employed and their previous retirement rights shall be preserved and continued in their positions in the district court.

Employees of the Forty-Third District Court are employees of the judicial district, an administrative unit of the state's one district court which is part of Michigan's one court of justice. They are not employees of the City of Ferndale, even though they are paid by the city as the district control unit. Judges of the 74th Judicial Dist v Bay County, supra.

Although judges of the district court are empowered to appoint employees and determine compensation within the overall limits of appropriations provided by the governing body of each district control unit, 1961 PA 236, Sec. 8271(1), supra, the district court judges are neither a 'representative legislative body of a municipality' nor an 'administrative board or commission of a corporation or instrumentality' within 1945 PA 135, Sec. 2(c) and (e), supra. However, the Legislature may, if it so chooses, amend 1945 PA 135, supra, to authorize district courts to elect to become members of the Municipal Employees' Retirement System.

It is my opinion, therefore, that the Ferndale Division of the Forty-Third District Court is not a municipality for purposes of participating in the Municipal Employees' Retirement System, and without authorizing legislation, the employees of said district court may not be included in the Municipal Employees' Retirement System which was established by 1945 PA 135, supra.

Frank J. Kelley