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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. 6304

July 2, 1985

CONSTITUTIONAL LAW:

US Const, Am XIV and Const 1963, art 1, Sec. 2--equal protection of the laws--purchase of military service credit

RETIREMENT SYSTEMS:

Judges' Retirement System--minimum years of service credit in order for member to purchase military service credit

A district court judge member of the Judges' Retirement System may not purchase military service credit until the member has accumulated twelve years of credited service.

The requirement that members of the Judges' Retirement System must have accumulated twelve years of service credit in order to secure military service credit does not violate the Equal Protection of the Laws Clause of either US Const, Am XIV, or Const 1963, art 1, Sec. 2.

Honorable Timothy Walberg

State Representative

The Capitol

Lansing, Michigan

You have requested my opinion whether a district court judge who is a member of the Judges' Retirement System must accumulate twelve years of service credit in order to purchase military service credit.

The Judges' Retirement Act, MCL 38.801 et seq; MSA 27.125(1) et seq, provides for a retirement system for elected or appointed members of the Supreme Court, the Court of Appeals, circuit courts, district courts, the Recorder's Court for the City of Detroit, the Common Pleas Court of the City of Detroit, probate courts for judges elected or appointed and beginning service after December 31, 1982, the State Court Administrator, and certain elected or appointed state officers.

MCL 38.813b; MSA 27.125(13.2), as last amended by 1978 PA 453, in pertinent part, provides:

'(1) Notwithstanding any provision to the contrary of Act No. 135 of the Public Acts of 1945, as amended, being sections 38.601 to 38.668b of the Michigan Compiled Laws, a member may elect to have credited service include service rendered previously as a municipal judge, as a justice of the peace in a governmental unit, as a judge for the police court of the city of Grand Rapids or recorder's court for the city of Cadillac, as a probate judge, as a referee of the traffic division of the recorder's court of the city of Detroit. A member shall not include in credited service more than 3 years of service rendered as a referee of the traffic division of the recorder's court of the city of Detroit, or more than 2 years of time served honorably, on active duty, as a member of the armed services of the United States.

'(2) A judge who elects to use service credit pursuant to subsection (1) may use the service credits earned as a municipal judge, as a justice of the peace, a judge for the police court of the city of Grand Rapids or recorder's court for the city of Cadillac, as a probate judge, or time served honorably, on active duty, as a member of the armed services of the United States, for the purposes of determining retirement or death benefits under this system to the same extent that the service would have been credited had it been rendered in a position covered under this act under the following condititions:

'(a) If the member who is a district judge pays into the employees savings fund an amount computed by all of the following steps:

'(i) Multiplying the contribution rate by 2/3 of the base salary of a circuit judge for each year and month of service credited before 1969.

'(ii) Multiplying the contribution rate by the base salary of a district judge for each year and month of service from January 1, 1969 and thereafter.

'(iii) Adding the regular interest the member's contributions would have earned had they been on deposit during each year and month of service claimed as a credit.

'(b) If the member who is a supreme court justice, an appeals court judge, a circuit judge, recorder's court judge, or common plea court judge pays into the annuity savings fund an amount equal to the amount the contributions would have been had the member been a member serving as a circuit judge and adding the regular interest the contributions would have earned had they been on deposit during each year and month of service claimed. A member claiming service for time served honorably, on active duty, as a member of the armed services of the United States may use the service credit for purposes of determining retirement or death benefits under this system to the same extent that the service would have been credited had it been rendered in a position covered under this act if the member pays into the employees savings fund an amount equal to 5% of the member's salary paid by the state for the year in which payment is made multiplied by the years and months of service that the member elects to purchase up to the maximum of 2 years. Armed service shall not be credited until the member has accumulated 12 years of credited service.' (Emphasis added.)

The underscored language was added by 1978 PA 453.

A cursory reading of MCL 38.813b; MSA 27.175(13.2), would suggest that a district court judge member is not subject to the 12 years of credited service limitation contained in the last sentence of subsection (2)(b) in light of the fact that district court judge members are not listed in the enumeration of judge members contained in the first sentence of subsection (2)(b). Because the reference is simply to 'the member,' and because there is no listing of judge members in the last sentence of this subsection, however, it is not entirely clear whether the Legislature intended the limitation to apply to all judge members except district court judge members or to all judge members of the retirement system.

Because the statute is susceptible to different interpretations, it is open to construction. City of Lansing v Township of Lansing, 356 Mich 641, 649; 97 NW2d 804 (1959). The legislative intent may be determined through resort to the legislative history of amendatory 1978 PA 453 and to the proceedings attendant to its passage by the Legislature as disclosed by the legislative journals. Liquor Control Commission v Fraternal Order of Eagles, Aerie No. 629, 286 Mich 32, 43; 281 NW 427 (1938).

Introduced as HB 4793, it purported to amend, in part, MCL 38.813b; MSA 27.125(13.2), to permit district judge members only to receive service credit for up to five years of military service without limitation as to number of minimum years of credited service accumulated in order to qualify for the military service credit.

The House Committee on Senior Citizens and Retirement reported HB 4793 favorably with recommendation that an amendment to the bill be adopted limiting the military service credit to be received to two years. 1 HJ 419 (1978). The amendment proposed by the Committee on Senior Citizens and Retirement was not adopted. 1 HJ 715 (1978). HB 4793 passed the House without further pertinent change. 1 HJ 730 (1978).

On second reading, the Senate adopted two amendments to HB 4793:

'1. Amend page 4, line 11, after 'THAN' by striking out '5' and insert '2.'

'2. Amend page 5, line 14, after 'claimed' by inserting 'ARMED SERVICE SHALL NOT BE CREDITED UNTIL THE MEMBER HAS ACCUMULATED 12 YEARS OF CREDITED SERVICE." 2 SJ 2107-2108 (1978).

While Amendment No. 2 was placed in subsection (2)(b) rather than in subsection (2)(a) of MCL 38.813b; MSA 27.125(13.2), nevertheless, there can be no doubt that the requirement of twelve years of credited service in order to secure military service was intended to apply to district court judge members of the system.

As thus approved by the Senate on second reading, district court judge members could secure not more than two years of military service credit, but such service credit could not be obtained by a district court judge member until twelve years of credited service were previously accumulated by the district court judge member. It should be emphasized that at this juncture of its legislative history, HB 4793 provided military service credits only for district court judge members and for no other member of the Judges' Retirement System.

HB 4793 was further amended in pertinent part by the Senate on third reading. The following amendment was adopted:

'(4) Amend page 5, line 14, after 'claimed' by inserting 'A MEMBER CLAIMING SERVICE FOR TIME SERVED HONORABLY, ON ACTIVE DUTY, AS A MEMBER OF THE ARMED SERVICES OF THE UNITED STATES MAY USE THE SERVICE CREDIT FOR PURPOSES OF DETERMINING RETIREMENT OR DEATH BENEFITS UNDER THIS SYSTEM TO THE SAME EXTENT THAT THE SERVICE WOULD HAVE BEEN CREDITED HAD IT BEEN RENDERED IN A POSITION COVERED UNDER THIS ACT IF THE MEMBER PAYS INTO THE EMPLOYEES SAVINGS FUND AN AMOUNT EQUAL TO 5% OF THE MEMBER'S SALARY PAID BY THE STATE FOR THE YEAR IN WHICH PAYMENT IS MADE MULTIPLIED BY THE YEARS AND MONTHS OF SERVICE THAT THE MEMBER ELECTS TO PURCHASE UP TO THE MAXIMUM OF 2 YEARS." 2 SJ 2149, 2150.

HB 4793 was thereafter enacted without further pertinent change.

The chronology of the Senate amendments to HB 4793 demonstrates persuasively that the Legislature intended all judge members of the Judges' Retirement System, including district court judge members, to be eligible for up to two years of military service credit, provided that the member has accumulated twelve years of credited service. Although the aforesaid limitation is contained in subsection (2)(b) rather than subsection (2)(a) of MCL 38.813b; MSA 27.125(13.2), the legislative intent is manifest and it must be observed.

It is my opinion, therefore, that a district court judge member of the Judges' Retirement System claiming credit for time honorably served on active duty as a member of the armed forces of the United States may not purchase such service credit until said member has accumulated twelve years of credited service.

Your second question is:

If MCL 38.813(b)(2)(b); MSA 27.125(13.2)(2)(b), requires a district court judge member to accumulate twelve years of credited service in order to receive not more than two years of military service credit, does such a requirement deny equal protection of the laws to such a district court judge member?

US Const, Am XIV, and Const 1963, art 1, Sec. 2, guarantee the equal protection of the laws to every person.

As amended by 1978 PA 453, MCL 38.813(b); MSA 27.125(13.2), treats all members of the Judges' Retirement System as to military service credits in the same manner. No member of the Judges' Retirement System may claim military service credit unless the member has accumulated twelve years of credited service.

The grant of military service credits rests in the sound discretion of the Legislature. There is no constitutional right to receive such credits. In conferring such benefits, the statute is not unconstitutional because it is legislation of a particular kind or character. Burgess v Detroit, 359 Mich 269, 280; 102 NW2d 483 (1960). Since it operates equally upon all in the same class, i.e., all members of the Judges' Retirement System, it does not deny equal protection of the laws under US Const, Am XIV, and Const 1963, art 1, Sec. 2. See, Hughes v Judges' Retirement Board, 407 Mich 75; 282 NW2d 160 (1979).

It is my opinion, therefore, in answer to your second question, that the requirement of twelve years of accumulated service credit in order to secure military service credit pursuant to MCL 38.813(b); MSA 27.125(13.2), does not violate the Equal Protection of the Laws Clause of either US Const, Am XIV, or Const 1963, art 1, Sec. 2.

Frank J. Kelley

Attorney General

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